GTC

General Terms and Conditions for Software

of the ECENT GmbH (hereinafter "ECENT"), Zentnerstraße 1, 80798 Munich, Germany, for the provision of software, software maintenance, software development, and related consulting services as well as training.

General Provisions
Special Section: Use of ERADIANT (Software Rental)
Special Section: Software Maintenance Services
Special Section: Software Development Services
Special Section: Training Services

§1 General Section

Scope
1. These General Terms and Conditions (hereinafter "GTC") apply to all contractual relationships between ECENT and the Client, provided that software is made available to the Client for use for a limited period corresponding to the respective contract term (Software Rental). Furthermore, they apply to agreed maintenance services for the provided software (Software Maintenance Services), consulting services, and training courses offered by ECENT (Training Services). They are divided into a general section (§ 1 General Section) and specific sections (§ 2, § 3, § 4, and § 5 – Specific Section), with the latter sections containing specific provisions regarding the respective concrete services provided by ECENT.
2. The software covered by this contract contains, in part, open-source components that are integrated in compliance with the law, in particular in accordance with the license terms listed below: GNU General Public License (GPL); GNU Lesser General Public License (LGPL); GNU Lesser General Public License (LGPL); MIT License; Apache License. The Client shall be sufficiently informed in the product description regarding the details of the included open-source components and the respective license terms (open-source license).
3. For the purposes of these Terms and Conditions, "Client" refers to a trader (Section 14 of the German Civil Code (BGB)), legal person under public law, or a special fund under public law as defined in Section 310 (1), sentence 1 BGB.
4. These GTC apply exclusively. Any deviating, conflicting, or supplementary general terms and conditions of the Client shall not apply, even if ECENT does not specifically object to their validity in individual cases. The unconditional acceptance of orders by ECENT does not constitute an acknowledgment of such terms and conditions. In the event of any contradictions between the German and English versions of these GTC, the German version shall take precedence.
5. Individual agreements made with the Client in specific cases shall in any event take precedence over these GTC.
6. Legally relevant declarations and notices to be made by the Client to ECENT after the conclusion of the contract require written form to be effective.
Conclusion of Contract
1. Offers from ECENT are subject to change and non-binding, unless the offer is expressly designated as binding. A legal obligation arises only through a contract signed by both parties or through a written order confirmation from ECENT, as well as when ECENT begins to perform the commissioned service. The specific scope of services to be provided by ECENT as requested by the Client, as well as the remuneration to be paid by the Client for this, is set forth in detail in the respective contract. In this sense, the contract to be concluded refers to the agreements regarding ECENT's deliveries and services, which refer to these GTC as well as any additional annexes (in particular Service Level Agreements). The specific system requirements for using ECENT's goods and services are set forth separately between the parties as part of the conclusion of the contract and are indicated in the product description, to which the contract refers.
2. The conclusion of the contract is subject to the reservation that, in the event of incorrect or improper supply to ECENT, performance may not be provided at all or only partially. This applies only if ECENT is not responsible for the incorrect or improper supply and ECENT has concluded a specific covering transaction with due care. ECENT will make every reasonable effort to provide the service. Otherwise any consideration already received shall be reimbursed without undue delay. In the event of unavailability or only partial availability, the Client will be informed without undue delay.
Performance of Services
1. ECENT employs carefully selected staff with the necessary qualifications to provide the service.
2. Unless expressly agreed otherwise with the Client, ECENT is not subject to any instructions from the Client regarding the performance of the contract or the provision of services, in particular with regard to the scheduling and organization of work processes.
Scope of Services
The specific scope of services, the nature and quality of the services, and the specific functional scope of the software are determined by the agreements reached between the parties in each individual case in accordance with the contract offer contained in the order and the corresponding order confirmation by ECENT. The nature and functionality of the software are otherwise derived from the corresponding product description, which is not to be understood as a guarantee. A guarantee is granted only if it has been expressly designated as such.
General Obligations of the Client
1. The Client is obligated to support ECENT to the agreed and reasonable extent. The Client acknowledges that the fulfillment of its obligations to provide support and cooperation is a fundamental prerequisite for the provision of services by ECENT.
2. Prior to concluding the contract, the Client must verify whether and to what extent the software specifications meet its wishes and needs. In this regard, the Client must keep itself informed of the essential functional features and conditions of the software.
3. The Client shall, without being requested to do so, inform ECENT of any industry-specific or company-specific requirements and procedures insofar as these are relevant to the performance of the services. ECENT shall be informed without undue delay of any changes to information, data, documentation, hardware, or software, and the Client shall provide ECENT with updated versions thereof. The Client represents and warrants that it is entitled to provide and permit the use of such information, data, and documentation.
4. The Client shall promote the proper use of the software by actively and appropriately cooperating at all times. The Client shall provide ECENT with the information and data necessary for the proper performance of the services. The Client is responsible for ensuring that the technical requirements for using the subject matter of the contract are met, particularly with regard to the hardware and software used, the Internet connection, and up-to-date browser software. In particular, the Client must use up-to-date antivirus software. ECENT shall not be liable for virus damage that could have been prevented by the use of such software. The limitations of liability set forth in Section 1.8 of these GTC shall also apply in this regard.
5. The Client must take appropriate precautions in the event that the software does not function properly, either in whole or in part (e.g., through data backup, fault diagnosis, regular verification of results, and contingency planning). It is the Client's responsibility to ensure the functionality of the software's operating environment.
6. The content posted on the infrastructure provided by ECENT, if applicable, constitutes third-party content for ECENT. Legal responsibility in this regard lies with the Client.
7. The Client is not permitted to use the system to advertise events or have events advertised, or to provide or have provided content that contains illegal, criminal, immoral, seditious, extremist, racist, discriminatory, violence-glorifying, or otherwise inhuman elements, or that promotes such purposes.
8. The Client undertakes not to distribute any content or take any actions via the infrastructure provided by ECENT that are directed against or materially disparage the free democratic basic order, in particular through incitement for hatred, violence, or discrimination against individuals or groups of people.
9. The Client is obligated not to take any measures that are likely to significantly damage ECENT's reputation, in particular by associating ECENT with illegal, extremist, or inhumane content or by making obviously false factual claims about ECENT.
10. The Client is prohibited from using the infrastructure provided by ECENT to engage in actions that violate fundamental values and sustainability principles, in particular those that support anti-democratic, inhumane, or discriminatory goals to a significant extent, or that are manifestly incompatible with recognized principles of responsible, sustainable conduct, particularly through misleading, untrue, or insufficiently substantiated environmental or sustainability claims in connection with events/offers distributed via the system.
11. The Client must generally comply with the applicable laws of the Federal Republic of Germany, in particular data protection and youth protection regulations, criminal law provisions, and these GTC. In particular, the Client is obligated to:
  1. protect the provided access data as well as corresponding identification and authentication mechanisms from access by unauthorized third parties and not to disclose them to such third parties;
  2. not to infringe upon the rights of third parties, in particular copyrights and related rights, trademark, patent, and other property rights, as well as personality rights;
  3. to respect the privacy of others, i.e., not to disseminate defamatory, threatening, violence-glorifying, harassing, harmful, racist, or otherwise objectionable content;
  4. not to run any applications that could alter the physical or logical structure of the networks, such as viruses;
  5. not to use the infrastructure made available to him for unauthorized advertising purposes, in particular for the unsolicited transmission of electronic mail.
Force Majeure
In cases of force majeure (unforeseen circumstances and events for which ECENT is not at fault and which could not have been avoided with the diligence of a prudent businessman, e.g., labor disputes, war, fire, transport obstacles, shortages of raw materials, import and export restrictions, governmental measures, pandemics, epidemics, or other operational disruptions), ECENT shall be released from its obligation to deliver for the duration and to the extent of the impact. ECENT shall notify the Client without undue delay of the occurrence and cessation of the force majeure event and shall use its best efforts to remedy the force majeure and limit its effects as much as possible. The contracting parties shall coordinate their further course of action upon the occurrence of force majeure. Notwithstanding this, each contracting party is entitled to withdraw from the affected contract if the force majeure lasts for more than six weeks.
General Provisions Regarding Material Defects and Defects in Title
1. With regard to software applications provided, it is generally and expressly acknowledged that no software or IT infrastructure available on the market is 100% secure or entirely free from defects. This is due, inter alia, to the large number of viruses in circulation and to the fact that security risks generally exist against which, according to the current state of the art, effective countermeasures may not yet be available. ECENT cannot, by its very nature, provide protection against improper operation or modifications of software applications, against contamination of software components with computer viruses or other malware, or against other security vulnerabilities that are outside ECENT's sphere of influence or for which ECENT is otherwise not responsible. The services provided by ECENT do not protect against possible infringements of intellectual property rights or other unlawful acts by third parties, such as cyberattacks/hacker attacks, interception or spying on data, or other unlawful data manipulations and acts of computer sabotage.
2. ECENT generally warrants that the services owed are free from material defects and third-party rights that materially impair the ordinary use of such services. ECENT warrants that the services owed by ECENT possess the quality customary for services of the same type and that the Client may reasonably expect in light of the nature of the specific service. It is expressly pointed out that the uninterrupted and unrestricted quality and functionality of the services owed by ECENT regularly also depend on software and hardware components of third-party providers over which ECENT has no control. In particular, any changes to such software components or to the Client's hardware and software environments may lead to limitations in the functionality of the services owed by ECENT. Limitations resulting from technical or other issues outside ECENT's sphere of influence (force majeure, fault of third parties, etc.) shall not be attributable to ECENT.
ECENT's Liability
1. ECENT assumes no liability for the uninterrupted availability of systems or for system-related failures, interruptions, and malfunctions of technical equipment and services for which ECENT is not responsible. In particular, ECENT shall not be liable for disruptions in the quality of access to the services due to force majeure or events for which ECENT is not responsible. This includes, in particular, strikes, lockouts, lawful internal labor disputes, and official orders. It also includes the complete or partial failure of the communication and network structures and gateways of other providers and operators required for ECENT's own service provision. ECENT shall be entitled to postpone the services incumbent upon ECENT for the duration of the impeding event plus a reasonable restart period. ECENT assumes no liability for minor interruptions. Furthermore, ECENT shall not be liable for errors arising from the Client's sphere of risk or that of other third parties, in particular for errors caused by improper operation or modification of the applications or other third-party software, contamination of relevant software components with computer viruses, use of unsuitable data storage media, defective hardware, failure of the power supply or data lines, or errors resulting from insufficient information security or unsuitable environmental conditions at the location where the applications are operated.
2. Data communication via the Internet cannot be guaranteed to be error-free and/or available at all times given the current state of technology. Therefore, ECENT assumes no liability for technical defects for which ECENT is not responsible, in particular for the constant and uninterrupted availability of the databases and their contents or for the complete and error-free reproduction of any content posted by the Client.
3. ECENT shall be liable without limitation under the Product Liability Act (ProdHaftG), in cases of the express assumption of a warranty or a procurement risk, for intentional or grossly negligent breach of duty, for defects that ECENT has fraudulently concealed, and in cases where ECENT is mandatorily liable without limitation under the relevant statutory provisions. ECENT is also liable without limitation for intentional or negligent injury to life, body, or health. ECENT shall be liable for property damage and financial loss caused by slight negligence only in the event of a breach of such obligations whose fulfillment is essential for the proper performance of the contract and on whose fulfillment the Client may rely to a particular degree ("material contractual obligations"), but limited to the damage typical for the contract and foreseeable at the time of conclusion of the contract. The foregoing also applies with regard to liability for ECENT's employees and vicarious agents.
4. The visual, content-related, or performance-related presentation may vary across different output media. Such deviations may occur in particular due to display resolution, display size, or device performance. No liability is assumed for deviations arising from corresponding technical conditions, insofar as these do not fall within ECENT's sphere of responsibility.
Subcontractors
1. ECENT is permitted to subcontract work to qualified third parties (Subcontractors). The engagement of Subcontractors to perform the agreed-upon services is at ECENT's sole discretion, exercised in accordance with its duties. ECENT shall ensure that any Subcontractors are able to fulfill their obligations to the Client and possess the necessary technical and professional expertise. ECENT shall provide corresponding evidence upon the Client's request.
2. In the event that the Client has itself engaged additional service providers or entered into other contracts relevant to ECENT's performance of the contract, the Client shall grant ECENT a power of attorney authorizing ECENT to exchange information regarding the performance of the contract with such service providers or other contractual partners. Should this not occur and, as a result, ECENT be unable to perform the services properly, ECENT shall bear no fault in this respect.
Remuneration; Set-off
1. The Client shall owe the agreed remuneration. Prices are quoted in Euro plus the statutory value-added tax (VAT) applicable at the time of service provision in accordance with the German VAT Act (UStG).
2. Unless the parties agree otherwise, the Client owes ECENT remuneration in accordance with the currently valid price list for the provision of services as well as for all expenses incurred in connection with the performance of the services (travel costs, expenses, or other outlays).
3. Unless otherwise agreed, concepts and designs developed by ECENT on behalf of the Client are subject to a fee.
4. Should the Client wish to utilize additional services from ECENT that were not agreed upon in the offer or contract between the Client and ECENT, these shall be considered additional services to be paid for separately by the Client.
5. In the event that ECENT incurs additional expenses due to incorrect or incomplete information provided by the Client, the Client must reimburse these additional expenses. The additional costs are calculated according to the contractually agreed rates. ECENT will inform the Client of any foreseeable additional expenses.
6. Without prejudice to any further claims, ECENT shall be entitled, in the event of default in payment, to temporarily suspend access to the agreed services in whole or in part. The Client shall be informed thereof without undue delay by email. The default in payment must not be insignificant. ECENT shall promptly restore access once the default in payment has been remedied.
7. The Client may only set off claims against ECENT if the Client's counterclaim is undisputed or has been finally adjudicated by a court of law; the Client may only assert a right of retention if it is based on claims arising from the same contractual relationship and the claim is undisputed or has been finally adjudicated by a court of law.
Confidentiality, Data Protection
1. The Client and ECENT mutually undertake to maintain confidentiality and protect data in accordance with the following provisions.
2. The respective Recipient shall treat the trade secrets of the disclosing party within the meaning of Section 2 No. 1 of the German Trade Secrets Act (GeschGehG) as well as other confidential information — in particular economically, legally, fiscally, and technically sensitive data — and all working documents, drafts, concepts, calculations, samples, strategic proposals, and drawings (collectively "Confidential Information") entrusted to them or that have come to their knowledge — regardless of whether they were expressly marked as confidential or not — and is not authorized to disclose or reveal such information. Information is not considered Confidential Information if it was known to the public or generally accessible prior to its communication or delivery to the Recipient, or becomes so at a later date without a breach of a confidentiality obligation; that was demonstrably known to the Recipient prior to disclosure and without breach of any confidentiality obligation; that was independently developed by the Recipient without use of or reference to the Confidential Information; or that is provided to or made available to the Recipient by an authorized third party without breach of any confidentiality obligation. The foregoing confidentiality obligation shall also apply for a period of 3 years following the termination of the contractual relationship between the Client and ECENT. The content of the contract concluded between the Client and ECENT itself is also covered by this obligation.
3. The respective Recipient may disclose Confidential Information internally only to the extent necessary and to the necessary group of persons ("need-to-know"). In particular, Confidential Information may be made available by the respective Recipient only to its employees who are bound by confidentiality obligations or to its consultants subject to professional confidentiality, provided that they are involved in the contractual relationships and reasonably require the information. Employees must be informed of this in advance. The Recipient shall take all necessary measures to ensure that all persons to whom Confidential Information is disclosed or made available treat such information in the same manner as the Recipient is obligated to do.
4. The respective Recipient is not authorized to use, exploit, or appropriate the Confidential Information for purposes other than those contractually agreed upon, either directly or through third parties. In particular, with regard to products and items, the Recipient is not authorized to obtain Confidential Information through so-called "reverse engineering" by observing, examining, disassembling, or testing.
5. Upon request by the disclosing party, or without request no later than upon termination of the contractual relationship between the parties, the respective Recipient undertakes to immediately return all Confidential Information made available to it, as well as all copies and transcripts thereof, to the disclosing party or to destroy them in consultation with the disclosing party. To the extent that documents containing Confidential Information have been provided in electronic form, such data must be deleted no later than upon termination of the contractual relationship between the parties or — if this is not technically possible — permanently blocked. This does not apply to the extent that there is a legal obligation to retain such information or an obligation arising from an official or court order.
6. The confidentiality obligation shall not apply to Confidential Information which the Recipient is required to disclose or publish pursuant to applicable law or pursuant to a binding order of a governmental authority or court. In such case, the Recipient shall, unless prohibited or restricted by law or official requirements, promptly notify the disclosing party of the impending disclosure or transfer of the Confidential Information and, in coordination with the disclosing party, take all necessary and legally permissible measures to prevent disclosure and to mitigate any damage resulting from such disclosure.
7. The respective Recipient shall protect the Confidential Information from unauthorized access by third parties through appropriate confidentiality measures and shall comply with statutory and contractual data protection regulations when processing the Confidential Information. This also includes technical security measures adapted to the current state of the art (Art. 32 of the EU General Data Protection Regulation ["GDPR"]) and the obligation of employees to maintain confidentiality and comply with data protection requirements (Art. 28 (3) lit. b GDPR).
8. If the respective Recipient of Confidential Information intentionally or negligently breaches the aforementioned confidentiality obligations, they shall be obligated to pay a reasonable contractual penalty, the amount of which shall be determined by the disclosing party at its reasonable discretion and, in the event of a dispute, reviewed by the competent court. The amount of the specific contractual penalty imposed shall depend in particular on the degree of confidentiality of the trade secret or other confidential information in question, the degree of fault, the scope of the disclosed information, and the number of unauthorized persons to whom the information is disclosed in breach of duty. Further claims for damages remain unaffected by this. Any contractual penalty paid shall be offset against any claims for damages. The contractual penalty represents the minimum amount of damages.
9. In all other respects, any processing of personal data shall be carried out in accordance with the provisions of the GDPR and other statutory data protection regulations, in particular the Federal Data Protection Act (BDSG). The detailed data protection provisions can be viewed at https://eradiant.eu/privacy-policy. These contain detailed information on how ECENT handles personal data, how it is protected, and what rights the Client has in this regard.
10. The parties shall conclude a separate data processing agreement, if necessary.
Client Reference
ECENT is entitled to name the Client as a reference, provided the Client has given its consent. The Client is entitled to revoke its consent at any time.
Term, Termination
1. The term is determined by individual agreements.
2. The parties' right to terminate the agreement at any time for cause without notice remains unaffected. Cause exists if, taking into account all circumstances of the individual case and weighing the interests of both parties, the terminating party cannot reasonably be expected to continue the contractual relationship until the end of the notice period or until the agreed termination date.
3. In particular, ECENT shall have good cause if the Client intentionally or negligently breaches material contractual obligations, and as a result, ECENT can no longer reasonably be expected to continue the contractual relationship. Accordingly, ECENT shall be entitled to terminate the contract extraordinarily and without notice if the Client
  1. is in default of payment of the remuneration for two consecutive due dates, or is in default of an amount equal to the remuneration for two months, over a period spanning more than two due dates;
  2. breaches the provisions of Section 1, Clause 1.5 of these GTC and fails to cease such breach within a reasonable period of time, provided that ECENT has previously warned the Client to desist from such conduct; Setting a deadline or issuing a warning shall not be required if it is obviously unlikely to succeed, where the breach of duty is particularly severe, or where special circumstances exist which, upon weighing the interests of both parties, justify termination without notice.
  3. In the event of extraordinary termination without notice, ECENT is entitled to immediately suspend access to the software/services.
4. For the Client, good cause may exist in the event of a long-term, significant failure to meet the agreed availability of the software.
5. Any notice of termination must be made in written form to be effective. Text form is not sufficient.
Amendment of Terms and Conditions
ECENT is entitled to amend these GTC at any time. The changes will be communicated to the Client in writing at least 6 weeks before they take effect. Unless the Client objects within this period, the changes to the GTC shall be deemed accepted. In the event of an objection, the contract shall continue under the previous GTC. In this case, ECENT shall have a special right of termination if the continuation of the contract under the previous conditions is unreasonable for ECENT.
Governing Law, Jurisdiction, Miscellaneous
1. The contractual relationship between the Client and ECENT shall be governed exclusively by the laws of the Federal Republic of Germany.
2. Unless a statutory exclusive venue applies, the exclusive venue for all claims arising from the contractual relationship is ECENT's registered office.
3. The Client is advised that IT services may be subject to export and import restrictions. In particular, authorization requirements may apply, or the use of the software or related technologies abroad may be subject to restrictions. Performance of the contract is subject to the condition that no obstacles to performance arise from national and international export and import regulations or other statutory provisions.
4. Should any provision of these GTC be or become invalid, this shall not affect the validity of the remaining provisions. A provision corresponding to the economic intent of the invalid or void provision shall be substituted. The same applies to gaps in the provisions.

§2 Special Section: Use of ERADIANT (Software Rental)

Subject Matter of the Contract
1. ERADIANT is an event management platform, specifically for event planning and attendee management. It is a Software-as-a-Service solution provided by ECENT via the Internet. The Client can find the current product description of ERADIANT at https://eradiant.eu/product-details.
2. Unless otherwise specified, the Client is not entitled to a dedicated IP address, a dedicated physical server for their content, or dedicated bandwidth (data transmission capacity). The service operates on high-performance virtual servers (v-servers) with a single IP address and a total bandwidth available for the respective server, which means that fluctuations in the bandwidth actually available to the Client are possible.
3. The Client's content shall be made available for retrieval via the Internet on the servers provided by ECENT. ECENT's services with regard to the transmission of data shall be limited solely to data communication between the transfer point of ECENT's own data communication network to the Internet and the server provided for the Client. ECENT has no possibility to influence data traffic outside its own communication network. Accordingly, ECENT does not owe the successful forwarding of information to or from the computer requesting access to the content.
Changes to the Scope of Functions
1. ECENT reserves the right to add and/or replace functionally equivalent products or features if this is necessary for reasons of IT security or due to applicable legal regulations.
2. ECENT may make changes to the scope of the software's functionality beyond those specified in Section 2.2.a, in particular to improve the software. ECENT will inform the Client of such circumstances without delay. If the change constitutes a material alteration to the service to be provided by ECENT, the Client shall have a special right of termination if the change is unreasonable for the Client.
Availability, Maintenance
ECENT grants access to ERADIANT in accordance with Section 2 and Section 3 (Special Section: Software Maintenance) of these GTC. The parties may also agree on overall availability requirements in a separate Service Level Agreement. In this case, availability is calculated based on the time allocated to the respective calendar month during the contract period, minus the maintenance periods defined below. ECENT is entitled to perform maintenance work to a reasonable extent. During maintenance work, the aforementioned services will not be available. ECENT shall immediately inform the Client of any upcoming maintenance work and notify the Client of the nature, extent, and duration of the disruption.
Data Backup
1. ECENT shall take appropriate precautions, in particular suitable technical and organizational measures, to prevent data loss.
2. As an additional service and subject to a separate agreement, ECENT offers the option of data backup beyond the aforementioned contractual ancillary obligation.
3. To the extent that this is reasonable for the Client, the Client shall perform a data backup. ECENT shall not be liable for damages resulting from the Client's failure to perform a reasonable data backup.
Rights of Use
1. ECENT grants the Client a non-exclusive right to use the contractual software, limited in time to the term of the contract and geographically to the European Union, for the purpose specified in the contract. The scope of the rights of use is agreed upon in detail between the parties through an offer and acceptance of the offer. Sublicensing is generally not permitted.
2. The use of ERADIANT is subject to the condition that the Client uses it exclusively for lawful purposes. Use for purposes prohibited under applicable laws is expressly excluded from the license.
3. To the extent that storage space is made available to the Client, the Client may not store any content that is unlawful, violates laws or official regulations, or infringes the rights of third parties. In particular, the infrastructure provided by ECENT or the storage space made available by ECENT may not be used for offers that infringe upon industrial property rights (such as trademark, patent, utility model, and design rights), copyrights and related rights, or other rights (such as the right to one's own image, name rights, and personality rights), nor for the advertising or distribution of such offers. The same applies to pornographic and harmful-to-minors content, propaganda materials, and products bearing the symbols of unconstitutional organizations.
4. In the cases described in Sections 2.5.b – 2.5.c, ECENT is entitled to suspend access to the platform and to terminate the contract extraordinarily and without observing a notice period.
5. The content stored by the Client in the storage space designated for the Client may be legally protected, in particular under trademark, copyright, or data protection law. The Client grants ECENT the right to make the content stored by the Client on the server accessible to the extent required for performance of the contract in response to requests via the Internet, in particular by reproducing and transmitting such content, as well as by reproducing it for purposes of data backup. The Client shall be solely responsible for verifying whether its use of personal data complies with applicable data protection requirements.
6. Indemnification
  The Client shall indemnify ECENT against any claims asserted by third parties within the meaning of Section 2.5.e. This also includes the costs of reasonable legal defense.
Warranty
1. ECENT warrants that the software will maintain the contractually agreed quality throughout the term of the contract and that no third-party rights will interfere with the use of the software in accordance with the contract. ECENT will remedy any material defects or legal defects in the software within a reasonable period of time.
2. The Client is obligated to notify ECENT in writing without undue delay of any defects in the software upon discovery thereof. In the case of material defects, such notice shall include a description of the time at which the defects occurred and the specific circumstances. Any defects in the services owed by ECENT shall be remedied without undue delay following the Client's description of the defect. If ECENT is unable to remedy the defect within a reasonable period, the Client may demand a proportionate reduction of the remuneration. This shall not apply where the defect is based on circumstances for which the Client is responsible, in particular where the Client fails to comply with its cooperation obligations. In the event of repeated material defects, the Client may furthermore terminate the contract without notice. Any further rights of the Client shall remain unaffected.
Remuneration
1. ECENT is entitled to reasonably increase the agreed prices for the contractual services to offset increases in personnel and other costs. This applies in particular in the following cases:
  1. Increases in the costs of server operation, hosting, or IT infrastructure;
  2. Changes in license costs for third-party software required to provide the service;
  3. Changes in legal or regulatory requirements that affect the operation or further development of the software.
  4. If cost-driving factors decrease, ECENT shall pass these savings on to the Client accordingly.
  5. The price increase or decrease applies exclusively to the portion of the costs that has demonstrably changed.
  6. ECENT will announce price changes in a timely manner, but at least eight weeks in advance.

§3 Special Section: Software Maintenance Services

The following terms and conditions apply to the extent that ECENT provides software maintenance services. The following provisions also apply to the use of ERADIANT (§ 2 Special Section: Use of ERADIANT).

Subject Matter of the Contract
1. Within the scope of software maintenance, the subject matter of the contract is the provision of maintenance services for software provided to the Client in accordance with these GTC, ECENT's product description, and any individual contractual agreements made by the parties in connection with the order.
2. Unless otherwise agreed in an individual contract, ECENT shall provide the following maintenance services:
  1. The Client will be offered those new program versions (e.g., updates) of the software covered by the contract that are released during the term of the contract;
  2. The Client shall be provided with technical support via telephone during ECENT's official business hours (Monday through Friday, 9:00 a.m. to 5:00 p.m.) for troubleshooting, error correction, or workarounds.
3. Software maintenance is provided in accordance with the current state of the art and in a manner that serves the interests of all software users. Services are provided only with respect to the most recent software version and the version immediately preceding it, as delivered by ECENT.
4. ECENT may, if necessary, deliver new software in the same manner as was permitted for the initial delivery, or by making the new version available to the Client electronically. In the event of a change in the state of the art, ECENT reserves the right to modify the delivery.
Ancillary Obligations and Other Obligations to Cooperate on the Part of the Client
1. Excluded from the maintenance service are repairs or increased maintenance effort for the software that were necessitated by use in breach of contract, use in an environment other than the agreed-upon one, improper use, external interference, force majeure, or similar circumstances; as well as work on the software that the Client has modified in breach of the contract or that has been technically maintained by parties other than ECENT without ECENT's prior express consent. In such cases, the Client shall separately compensate ECENT for the expenses necessary for the proper use of the software.
2. The Client shall notify ECENT without undue delay if the software does not function properly. In doing so, the Client shall specify the circumstances under which the errors occurred and their effects in concrete terms and in writing.
3. In the event of an error report, the Client must provide ECENT with remote access, provided this is reasonable to expect. Otherwise, any additional costs incurred by ECENT as a result shall be borne by the Client.
4. ECENT may, if necessary, require that, in the event of error reports, the symptoms that have occurred, the program, and the system and hardware environment be observed in detail and reported (using forms provided by ECENT), including information relevant to troubleshooting, such as the number of affected users, a description of the system and hardware environment, as well as any third-party software loaded simultaneously, and relevant documentation. ECENT may also require that identified malfunctions be made available in a reproducible form on a suitable data carrier.
5. ECENT may, if necessary, require the Client to provide evidence of training in the use of the maintained software or that the Client's responsible employees undergo such training.
Remuneration
Section 2.7 applies accordingly.

§4 Special Section: Software Development Services

Subject Matter of the Contract
1. The subject matter of the contract is the creation of software for the Client as well as the creation of the corresponding documentation.
2. If ECENT develops apps, compatibility with iOS and Android devices for the two most recent operating system versions is ensured, unless otherwise agreed.
3. Due to the large number of devices on the market with varying specifications and technical parameters, ECENT cannot guarantee compatibility with all devices. A selection of devices on which the app will be tested and is intended to be compatible will be agreed upon with the Client and set forth in the contract.
Client's Cooperation
ECENT develops the software in accordance with the Client's requirements. The Client is obligated to provide ECENT with a contact person to support the necessary work to an extent that is reasonable in terms of both time and quality.
Changes to the Subject Matter of the Contract
Until acceptance of the subject matter of the contract, the Client is entitled to request reasonable changes to the subject matter of the contract from ECENT. ECENT shall implement such changes under conditions and within timeframes comparable to those agreed upon in the individual order. In favor of ECENT, the agreed deadlines shall be extended by a request for changes from the Client, provided that such a request results in delays that cannot be otherwise mitigated. Such changes requested by the Client, as well as the associated deadline extensions, shall be recorded in a change log. This shall also become part of the contract.
Rights of Use
1. Upon full payment of the installments due up to and including acceptance, the Client shall receive the simple, non-exclusive, perpetual right to use the contractual software in object code within the defined scope. Prior to acceptance, use free of charge for testing purposes is permitted.
2. The transfer of rights does not include the provision of the source code. Disclosure of the source code shall only be owed subject to separate agreement.
Acceptance
1. Upon request by ECENT, the Client is obligated to accept individual completed and independently separable parts of the overall work after ECENT has notified the Client of their completion, provided that such parts have been performed in accordance with the contract, partial acceptance can be reasonably expected of the Client, and the further performance of the contract is not thereby impaired.
2. To the extent that test runs or acceptance tests, presentations, or other meetings become necessary or appropriate, the Client shall assign knowledgeable employees to participate in the meetings who are authorized to make all necessary or appropriate decisions.
3. Acceptance of the software shall be deemed to have taken place if the Client uses the delivered software or parts thereof in a productive manner without significant restrictions for a period of four weeks, unless the Client notifies ECENT within this period of material defects that prevent acceptance. Section 640 para. 2 BGB remains unaffected.

§5 Special Section: Training Services

The following terms and conditions apply when ECENT provides training services.

Subject Matter of the Contract
1. In the context of training, the subject matter of the contract (service contract) is the provision of training services in the field of information technology in accordance with these GTC, ECENT's product description, and any individual contractual agreements made by the parties in connection with the order.
2. Success of the training is not guaranteed.
Conduct of the Training
1. Training is conducted in German. Training materials must be provided in the language of the training, if applicable. The use of common English technical terms is permitted.
2. Unless otherwise agreed, training sessions will take place virtually.
3. Unless otherwise agreed, a training day consists of eight (8) hours. Breaks are not included in this. Additional or reduced services per training day will be compensated on a pro-rata basis.
4. ECENT reserves the right not to provide training services if the number of participants is fewer than 6 persons. In this case, the Client's obligation to pay is waived. This does not apply if individual training sessions are offered to the Client.
Personnel of ECENT and Subcontractors
1. ECENT shall be free to choose the persons it deploys for the performance of the services. ECENT shall ensure that the persons deployed by it are sufficiently qualified to perform the services. Insofar as ECENT has identified by name to the Client persons whom it intends to deploy for the performance of the services, such identification reflects the planning status at the time of the nomination. The Client shall have no claim to the deployment of the named persons.
2. The persons deployed by ECENT to perform the services are not subject to the Client's authority to issue instructions. This applies in particular where persons deployed by ECENT perform the services on the Client's premises. Both parties shall take appropriate measures to prevent any unlawful employee leasing.
Ancillary Obligations and Other Cooperation Obligations of the Client
1. The Client shall provide the agreed cooperation, including the provision of necessary resources. In addition to the expressly stated cooperation, the Client shall provide the cooperation necessary and generally customary for ECENT's performance of the services in accordance with the contract, and in particular shall
  1. provide all necessary information;
  2. make the training materials provided available to the training participants in an appropriate form, unless these services have been contractually assigned to ECENT's scope of obligations;
  3. provided that it has been agreed that the training will be conducted on the Client's premises:
    1. grant access to its premises during the agreed training times, in particular to a training room suitable for conducting the training; and
    2. grant access to its IT systems and provide the technical resources necessary for conducting the training.
  4. To the extent that cooperation services are owed and the necessary details have not already been specified in the contract, ECENT shall request these services from the Client in written form with a reasonable advance notice period, specifying the relevant framework conditions. ECENT shall notify the Client without undue delay in written form of any cooperation services it deems insufficient.
2. Unless otherwise agreed in individual cases, all cooperation services must be provided to ECENT free of charge.
3. The services to be provided by the Client constitute genuine obligations and not merely duties of care or cooperation. If and to the extent that the Client fails to provide the services owed by it, fails to provide them on time, or fails to provide them as agreed, and this affects ECENT's performance, ECENT shall be released from the obligation to provide the affected services. The corresponding performance deadlines for ECENT shall be postponed by a reasonable period; in the case of bindingly agreed deadlines, ECENT shall be released from its obligation to perform. Any additional expenses incurred and evidenced by ECENT shall be reimbursed separately on the basis of the agreed terms, without prejudice to ECENT's further rights.
Rights of Use
1. The Client is granted a non-transferable, non-exclusive right, unlimited in terms of time and territory, to use the training materials for its own internal purposes. However, this right is transferred to the Client only upon full payment of the contractual remuneration. Prior to this, the Client has only a provisional, contractual, and revocable right of use.
2. The right of use pursuant to § 5, Section 5.5.a also includes the right to make modifications, translations, adaptations, or other alterations and to use them for the Client's own internal purposes, including storage and reproduction.
3. Ownership of the copies of the work results created by ECENT for the Client for training purposes shall be transferred to the Client upon full payment of the remuneration owed.