evosystems ◆ MarkX™
Legal

General Terms and Conditions

This English version is a convenience translation of our German "Allgemeine Geschäftsbedingungen". In case of any discrepancy or ambiguity, the German version alone is legally binding.

Table of contents:

Sec. 1 Scope, Contracting Parties

(1) These General Terms and Conditions ("Terms") apply to all contracts and services provided by evosystems GmbH, Straßburger Weg 3, 77975 Ringsheim, Germany ("evosystems") to its customers ("Customer"), in particular for:

  • a) the time-limited provision and licensing of the MarkX™ software (rental/SaaS),
  • b) hosting and operating services relating to MarkX™,
  • c) maintenance and support services as well as service plans,
  • d) the ongoing management of solutions implemented by evosystems (Managed Services) and ongoing advisory services under a consulting retainer,
  • e) project, development, implementation, consulting and other services,
  • f) the use of artificial intelligence systems, including the underlying models ("AI Systems"), in connection with the aforementioned services.

(2) These Terms apply exclusively to businesses within the meaning of Sec. 14 of the German Civil Code (BGB), legal entities under public law and special funds under public law.

(3) The Customer's purchasing or other business or contractual terms do not apply; this also applies if evosystems provides services without expressly objecting to the Customer's terms.

(4) Descriptions of services on the website, in brochures and similar materials are non-binding and do not constitute an agreement on quality or a guarantee.

Sec. 2 Contract Structure, Incorporation, Order of Precedence

(1) The types of services under Sec. 1 (1) are governed by separate individual contracts. Entering into a contract for one type of service does not create a claim to the provision of other types of service.

(2) These Terms form part of every individual contract in the version valid at the time the contract is concluded. They also apply on a supplementary basis where no separate individual contract has been concluded.

(3) The type and scope of the agreed services and the amount of the fees result from evosystems' offer and from the further annexes, which form an integral part of the contract. In the event of conflicts, the following descending order of precedence applies:

  1. individual agreements between the parties,
  2. the respective individual contract,
  3. evosystems' offer together with its annexes (in particular the service description, Service Level Agreement, system requirements, price list, project plan, responsibility matrix, transferable data categories),
  4. these Terms,
  5. statutory provisions.

(4) Services marked as "optional" in the offer only become part of the contract once released or separately commissioned by the Customer; optional services may be commissioned individually by the Customer. The terms and conditions of the respective contract apply accordingly to the implementation of such optional services.

Sec. 3 Conclusion of Contract

(1) A contract is concluded when evosystems provides the Customer with an offer in text form and the Customer accepts it in text form, or when evosystems confirms an order from the Customer in text form. If the individual contract provides for signature by both parties, it takes effect upon signature.

(2) Amendments and additions require at least text form (Sec. 126b BGB), unless a stricter form is agreed in the individual contract. Individual agreements between the parties take precedence regardless of their form.

Sec. 4 Performance of Services

(1) evosystems provides the agreed services with care, professional skill, and in accordance with the recognised professional and technical standards applicable at the time the service is rendered. Unless otherwise agreed, services are provided remotely or at the Customer's premises.

(2) The implementation of statutory, regulatory or other regulatory requirements, as well as technical requirements arising from standards and norms, are only included in the scope of services to the extent expressly agreed between the parties (e.g. in a contract annex). The Customer is responsible for assessing which specific statutory, regulatory or industry-specific requirements apply to its particular use case, unless evosystems has been expressly commissioned to provide a corresponding advisory service or such requirements are already an integral part of MarkX™.

(3) evosystems is entitled to use employees, freelancers and other subcontractors to provide the services; in particular, evosystems uses an external provider or data centre in which the Customer's software and data are stored. evosystems remains responsible to the Customer for the contractually owed services; breaches of duty by subcontractors are attributed to evosystems as if they were evosystems' own breaches of duty. The Customer may only object to the use of a particular subcontractor for good cause.

(4) As part of the continuous improvement and further development of the software, services, functions and/or modules may be added, changed or discontinued during the contract term, provided this does not materially restrict the contractually agreed services, does not jeopardise the achievement of the contractual purpose, and is reasonable for the Customer. If access to new modules is offered on a chargeable basis, the Customer will be informed accordingly; the Customer is not obliged to make use of such additional chargeable offerings.

(5) For third-party software and databases, as well as for open source software that evosystems integrates into the services and/or makes available to the Customer, the contractual and licence terms of the respective manufacturer or supplier, or the applicable open source licence terms, apply unless otherwise agreed. These may contain provisions on the granting of usage rights, as well as on warranty and liability, that differ from the terms of the respective contract. evosystems will make the contractual and licence terms for such third-party products available to the Customer in a suitable manner upon request. Where these leave gaps, the provisions of these Terms apply on a supplementary basis.

(6) evosystems is not responsible for outages, restrictions, changes to, or discontinuation of, third-party services (in particular cloud services, AI models, APIs, ERP systems, databases or other software), unless evosystems is responsible for such circumstances. Changes to third-party systems, APIs, AI models, operating systems or other external technical components occurring after acceptance or completion of a service do not constitute a defect in the service originally rendered in conformity with the contract. Any adjustments required as a result may be separately commissioned by the Customer.

Sec. 5 Usage Rights to MarkX™

(1) The copyright and other protective rights to the software are held exclusively by evosystems or evosystems' licensors in relation to the Customer.

(2) The Customer receives, with respect to the software provided, the non-exclusive, non-transferable and non-sublicensable right, limited in time to the term of the contract, to use the software within the scope of services agreed in the offer – in particular the booked Factory tier with the number of department agents and programs specified therein – for its own business purposes. Any use of the software beyond its intended purpose is prohibited.

(3) The software may only be used by the Customer's own employees and by third parties commissioned by the Customer who support the Customer in using the software and who are appropriately bound to confidentiality. The Customer may not enable any other third party, directly or indirectly, to use the software or access the software interface. In particular, the Customer is not entitled to use the software for the business purposes of third parties, to allow third parties to use it on its behalf, or to make it accessible to third parties.

(4) The software is provided to the Customer in the version current at the time the contract is concluded and exclusively in machine-readable binary or object code form. The source code is not provided to the Customer. A right to the provision of source code, development environments, internal development documentation, prompts, system prompts, agent configurations or other internal technical components of evosystems only exists if expressly agreed in the offer. This does not apply to software or other content belonging to the Customer that evosystems merely processes or modifies.

(5) If evosystems has concrete indications that the agreed scope of use has been exceeded, evosystems is entitled to temporarily suspend or restrict the Customer's access to the software until the matter has been clarified.

(6) All rights to data, software components, documentation, trademarks, content and other materials provided by the Customer remain with the Customer or the respective rights holders. The Customer grants evosystems, for the duration and purpose of contract performance, the usage rights required for the performance of the services to the extent necessary, in particular the right to reproduce (through storage) and, where necessary, to process such materials. The Customer warrants that it is entitled to make the content, data and materials provided available to evosystems for the agreed purposes.

Sec. 6 Use of Artificial Intelligence

(1) evosystems is entitled to use AI Systems in providing the services, in particular to increase efficiency and quality assurance. This includes both the integration of generative AI functions into evosystems' products and the internal use of AI-based applications and tools at evosystems. The specific AI Systems used are selected at evosystems' reasonable discretion. evosystems documents the use of AI Systems to the extent required for internal traceability and to fulfil statutory obligations, and will inform the Customer, upon request, whether and in what form AI Systems are used in providing the services. The use of such tools does not affect evosystems' responsibility for the contractual performance of the agreed services.

(2) The Customer expressly consents to the use of AI Systems. The Customer grants evosystems the right to process the data, information, documents and other materials required for contract performance using AI Systems, and to reproduce, process and transmit such data to the operators of the AI Systems used, as necessary to fulfil the contractually agreed services.

(3) Where evosystems integrates AI Systems into its products, the contractual and licence terms of the respective manufacturer or supplier take precedence for the Customer's use of them; evosystems will draw the Customer's attention to these terms at the time the contract is concluded or before the relevant AI function is activated, in a manner allowing the Customer to review them. evosystems will also inform the Customer, in a suitable manner (specifically, an overview in the product documentation), of the AI Systems integrated at any given time.

(4) evosystems is entitled to change and replace the integrated AI Systems at any time (for AI Systems from other providers, new versions, etc.). This will only be done to the extent that it does not impair the usability of the services for the contractually agreed purpose and proper fulfilment of the agreed services remains assured, unless such an adjustment is required to fulfil a legal obligation.

(5) Insofar as AI Systems, large language models, autonomous or semi-autonomous agents, or other generative AI methods form part of the solution created for the Customer, the Customer acknowledges that their results are, by their technological nature, generated probabilistically. AI-generated results may therefore, despite proper technical design, be incomplete, inaccurate, ambiguous, or differ given the same input.

(6) If the Customer bases its own (in particular entrepreneurial) decisions on the results of the AI Systems used, it does so solely at its own discretion and at its own risk. The Customer is responsible for appropriately reviewing AI-generated results, from a professional standpoint, before using them, in particular where legally, economically or otherwise material decisions are made, or measures triggered, on their basis. This also applies to suggestions regarding the recording, modification, allocation or deletion of data objects, which the Customer must review before implementation. evosystems does not review the responses and results produced by the AI Systems for accuracy, correctness or plausibility, and does not correct them. evosystems further assumes no responsibility for the availability and operation of AI Systems that the Customer independently selects, configures or operates when using the product.

(7) Fully autonomous decision-making or processing without human oversight is only owed if expressly agreed as part of the contract. The agreed degree of autonomy and any control points ("Human Quality Gates") result from the offer or the configuration of the Customer's environment.

(8) Where AI-based work results are legally protectable (in particular where they are the result of a natural person's personal intellectual creation) and are provided to the Customer, evosystems grants the Customer usage rights to such results to the same extent and at the same point in time as is provided for comparable, non-AI-based work results. Where AI-based work results are not legally protectable, in particular because they are not the result of a natural person's personal intellectual creation, evosystems cannot, for legal reasons, grant the Customer any copyright usage rights to them. Where such work results are nonetheless provided to the Customer, evosystems grants the Customer, on a contractual (rather than copyright) basis, unrestricted use and exploitation of these work results, and will ensure, when selecting and using the AI Systems employed, that the terms of use applicable to the respective AI System do not preclude the Customer's use and exploitation of the work results.

(9) evosystems takes appropriate technical and organisational measures to protect personal data and instructs its employees not to use or otherwise transmit the Customer's personal data, or that of its staff, in inputs to AI Systems without a legal basis. Before requests are sent to external AI services, the data concerned passes through an anonymisation middleware that removes personal and business-critical details, to the extent possible according to the state of the art. Hosting takes place in certified data centres within the European Union.

(10) evosystems takes appropriate measures to prevent unauthorised disclosure of the Customer's trade secrets. The Customer acknowledges that copying or transmitting the Customer's confidential information to AI Systems, within the permitted use governed here and to the extent contractually agreed, does not constitute unauthorised disclosure of trade secrets, provided that evosystems ensures, to the extent within its control, that appropriate security and confidentiality measures apply. evosystems only uses AI Systems whose operators are contractually obliged to treat trade secrets confidentially and to comply with appropriate security standards, and will ensure that the use of the Customer's data for training purposes is contractually excluded.

(11) The Customer may only use AI Systems integrated into evosystems' products for the contractually agreed purposes. In doing so, it must in particular observe the provisions of the German Copyright Act (UrhG), the German Trade Secrets Act (GeschGehG), the General Data Protection Regulation (GDPR) and the AI Act. evosystems is entitled to temporarily or permanently block access to the AI Systems if there is a concrete suspicion of a violation. Further claims by evosystems remain unaffected.

(12) Insofar as MarkX™ or individual functions of MarkX™ are to be classified as an AI system within the meaning of Regulation (EU) 2024/1689 (the "AI Act"), evosystems is generally the provider and the Customer the deployer within the meaning of Art. 3 AI Act. The Customer independently fulfils the statutory obligations incumbent on it in its capacity as deployer. This includes, in particular, ensuring an adequate level of AI literacy among the persons involved in operating and using MarkX™ pursuant to Art. 4 AI Act. Insofar as MarkX™, based on its agreed intended purpose, is classified as a high-risk AI system in an individual case, the Customer additionally fulfils the deployer obligations applicable to it, in particular under Art. 26 AI Act. evosystems provides the Customer with the information required to fulfil its statutory deployer obligations, to the extent that such information falls within evosystems' area of responsibility and control.

(13) Since it cannot be entirely ruled out, despite careful selection and application of the AI Systems, that AI-generated work results contain material protected by third parties or coincide with existing works, evosystems is not liable for the freedom from third-party rights of AI-generated work results.

Sec. 7 Rights to Work Results

(1) All technologies, software components, frameworks, libraries, methods, models, agents, templates, prompts, system prompts, algorithms, concepts, interface components, development tools and other materials of evosystems that already existed prior to the start of the project or were developed independently of the specific customer project remain the exclusive property of evosystems. This applies in particular to MarkX™ and its components.

(2) "Work Results" are the protectable results created by evosystems for the Customer under a project, in particular software, documentation, concepts, configurations, adaptations, enhancements and other project documents. Unless expressly agreed otherwise, all copyright, protective and other rights to the Work Results remain with evosystems.

(3) Upon full payment of the fee owed for the respective Work Result, the Customer receives a non-exclusive right, unlimited in time and place, to use the Work Result for its own business purposes. The usage right is non-transferable and non-sublicensable, unless otherwise agreed in the offer. The Customer may grant access to the Work Results to third parties commissioned to use and support its systems, to the extent necessary for the Customer's own contractual use, provided such third parties are appropriately bound to confidentiality.

(4) evosystems remains fully entitled to use general knowledge, experience, methods, concepts, technical principles, algorithms, templates, software components and other non-customer-specific components that arise or are further developed in the course of the project, for its own products and services and for other customers. Confidential information, trade secrets and personal data of the Customer may not be disclosed or used for other customers in doing so.

Sec. 8 Fees and Payment Terms

(1) Fees result from the offer. Unless otherwise agreed therein, services are billed based on actual effort at the agreed hourly or daily rates.

(2) All prices are exclusive of statutory value-added tax, where applicable. Any further taxes, duties, fees, etc. are to be borne by the Customer, if applicable.

(3) Unless otherwise agreed, all payments are due from the Customer within 14 calendar days of receipt of invoice, without deduction. If a SEPA direct debit mandate has been granted, evosystems will collect the amounts on the due date; the pre-notification period is five (5) calendar days.

(4) Effort estimates, person-days, budgets or comparable figures are non-binding planning figures unless expressly designated as a fixed price or binding cap. evosystems will inform the Customer as soon as it becomes apparent that a material overrun of a stated planned effort is to be expected.

(5) Effort-based services are generally billed monthly following performance. A daily rate comprises eight (8) working hours. Effort beyond this is billed proportionally on an hourly basis. Travel time, travel expenses and other incidental costs are billed in accordance with the offer.

(6) For work expressly requested by the Customer on Saturdays, Sundays and statutory public holidays, as well as between 6:00 p.m. and 6:00 a.m., evosystems may charge a surcharge of 50% on the agreed rates.

(7) Where payment milestones or fixed payment dates are agreed, these remain in effect even in the event of project delays, provided evosystems is not responsible for the delay.

(8) Use exceeding the agreed scope of services (in particular additional department agents or programs) will be billed separately in accordance with the price list applicable at the time of use, viewable in the MarkX™ Value Dashboard.

(9) evosystems is entitled to reasonably adjust the amount of recurring fees where and to the extent that the costs relevant to providing the services increase as a result of circumstances not caused by, and not within the control of, evosystems – for example due to increased data centre or token prices, new technical developments (e.g. the need to licence upgrades to system software), new security requirements, or new statutory requirements, e.g. arising from data protection law.

(10) evosystems is otherwise entitled to reasonably adjust recurring fees by declaration in text form to the Customer, subject to at least one (1) month's advance notice, with effect from the start of each contract year, to account for its increased costs. To demonstrate the cost increases incurred, evosystems may refer to the development of the consumer price index or the index of average gross monthly earnings of employees in the German IT sector since the last price adjustment. For the first fee adjustment, the relevant index movement is between the index level published at the time the contract was concluded and the index level most recently published at the time of the first adjustment declaration.

(11) In the event of default in payment, evosystems is entitled to charge default interest at the statutory rate and, after prior notice and a reasonable grace period, to temporarily suspend access to the services.

(12) The Customer may only set off undisputed or legally established claims. The Customer has a right of retention only in respect of claims arising from the same contractual relationship.

Sec. 9 Customer Responsibilities and Cooperation

(1) As a material contractual obligation, the Customer will provide, in a timely, proper and complete manner, the contributions and cooperation described in the respective contract as well as any further cooperation required for the performance of the services. No fee is payable for this. This includes, in particular:

  • providing the necessary contacts and decision-makers,
  • timely decisions and approvals,
  • providing complete and correct information, data and documentation,
  • necessary system, network and remote access,
  • necessary test and production environments,
  • test cases and test data,
  • interface descriptions and access credentials,
  • necessary software licences and third-party products,
  • cooperation in testing and acceptance.

(2) The Customer is responsible for the quality, completeness, lawfulness and currency of the data it provides.

(3) The Customer has informed itself about the essential functional characteristics of the software and is responsible for ensuring that it meets its requirements and needs. The Customer will ensure that the process changes within its organisation necessary for using the software are implemented. The Customer is further responsible for ensuring that the technical minimum requirements for accessing and using the software in accordance with the contract are met; evosystems will inform the Customer of the system requirements applicable at the time the contract is concluded, which may be subject to change during the contract term due to technical developments.

(4) The Customer is responsible for providing and licensing the third-party products required to render the contractual services. It is the Customer's responsibility to ensure the proper operation and availability of third-party products, where necessary through licence and maintenance agreements with the manufacturers or suppliers, during the contract term.

(5) Access to MarkX™ may only take place via the interfaces, applications and technical access channels provided or expressly approved by evosystems. In particular, automated access, the circumvention of technical protective measures, and the use of unapproved interfaces or access methods are prohibited, unless evosystems has previously approved them.

(6) Expenses incurred by evosystems as a result of omitted, delayed or improper cooperation and contributions by the Customer, or due to incorrect, incomplete, contradictory or outdated data, will be separately invoiced to the Customer based on effort. Delays, waiting times and additional effort will result in a reasonable extension of agreed deadlines. Further rights of evosystems remain unaffected.

Sec. 10 Schedules, Project Management, Changes to Scope of Services

(1) Unless information on effort, project duration or deadlines is expressly designated as binding, it constitutes planning figures.

(2) Deadlines and time limits are reasonably extended or postponed where evosystems is waiting for necessary information, decisions, approvals, data, access or other cooperation from the Customer, or where evosystems is prevented from performing the services by circumstances beyond its control. This applies in particular in cases of force majeure, or outages or changes affecting third-party providers, cloud services, APIs or other required external systems. A reasonable restart period following the removal of the obstacle must be taken into account.

(3) Each party will, where necessary, appoint a project lead. The project leads coordinate ongoing cooperation, necessary decisions, approvals and contributions. Project meetings, decisions and material project status updates may be documented by evosystems and made available to the Customer by email or via a project management system in use. Minutes and documented decisions are deemed accurately recorded if the Customer does not object in text form, stating the points objected to, within five (5) working days of receipt. This does not, without carrying out the change request procedure under paragraph 4, effect changes to the contractually agreed scope of services.

(4) Either party may propose changes or extensions to the agreed scope of services. At the Customer's request, evosystems will review the impact of a requested change on the scope of services, effort, fees and schedule, and, where appropriate, submit a corresponding supplementary offer to the Customer. Where reviewing a change request causes more than insignificant effort, evosystems may charge for this effort at the agreed rates; evosystems will notify the Customer before incurring material chargeable review effort. Implementation of a change only takes place after release by the Customer in text form. Pending such agreement, evosystems will continue to provide services on the basis of the most recently agreed scope of services, to the extent technically and organisationally feasible. Delays caused by change requests will result in a reasonable adjustment of agreed deadlines and time limits.

Sec. 11 Acceptance of Work Deliverables

(1) Only services for which evosystems expressly owes a specific work result are subject to acceptance.

(2) After completing a work deliverable subject to acceptance, evosystems will notify the Customer of its readiness for acceptance. The Customer will inspect the deliverable within ten (10) working days and declare acceptance, provided no defects preventing acceptance exist.

(3) Defects are classified as follows:

  • Class 1 – Critical defect: Contractual use of the work deliverable as a whole is impossible and there is no reasonable workaround.
  • Class 2 – Material defect: A material agreed function is significantly impaired and there is no reasonable workaround.
  • Class 3 – Other defect: Contractual use as a whole remains possible; the defect impairs use only insignificantly or can reasonably be worked around.

Only Class 1 and Class 2 defects entitle the Customer to refuse acceptance.

(4) If the Customer refuses acceptance citing one or more defects, the defects raised will be reviewed by the parties and classified in accordance with paragraph (3). Justified Class 1 and Class 2 defects preventing acceptance will be remedied by evosystems within a reasonable period. Once remediation has been reported, evosystems will resubmit the affected work deliverable for acceptance. The Customer will check within ten (10) working days whether the defects preventing acceptance have been remedied and will then declare acceptance, provided no defects preventing acceptance remain. Acceptance may not be refused on account of Class 3 defects; these are handled under the statutory or agreed warranty provisions.

(5) Acceptance is deemed to have occurred if the Customer does not inspect the deliverable within this period and does not refuse acceptance within the period citing at least one defect. Acceptance is further deemed to have occurred if the Customer, with evosystems' consent, makes ongoing productive use of the work deliverable, provided the circumstances of such productive use indicate that the Customer essentially approves the deliverable as being in conformity with the contract. Use solely for testing, review or acceptance purposes does not constitute productive use within the meaning of this provision.

Sec. 12 Liability for Defects

(1) Provision of the software and hosting/operating services. evosystems warrants that the services conform to the agreed product or service description during the contract term and that no third-party rights preclude the Customer's contractual use. For services rendered as services within the meaning of Secs. 611 et seq. BGB, evosystems owes the professional performance of the agreed activity, but not a specific economic or other outcome. Statutory warranty and defect rights under contract-for-work law do not apply to such services.

(2) evosystems is not responsible for functional impairments resulting from the Customer's hardware or software environment, incomplete or incorrect data, improper operation, or other circumstances within the Customer's area of responsibility. The obligation to remedy defects lapses if the Customer or a third party has modified the software without authorisation or improperly, or used it contrary to the contractual specifications or the user documentation, unless the Customer proves that the defect is unrelated to this.

(3) Properly reported and reproducible defects will be remedied by evosystems within a reasonable period during the term of the contract. The decision on the manner of remediation lies with evosystems. Remediation may initially consist of showing the Customer reasonable ways to avoid or work around the effects of the defect.

(4) If the remedy of a defect ultimately fails and this constitutes good cause for the Customer, the Customer is entitled to terminate the contract for cause without notice. Termination on account of an insignificant defect is not permitted. The Customer has no right of rescission or to remedy the defect itself at evosystems' expense.

(5) The Customer may only exercise the right of termination under Sec. 543 (2) No. 1 BGB if it has first requested evosystems, in text form and with a reasonable grace period of at least two (2) weeks, to remedy the defect, and that period has expired without result. The landlord's strict (no-fault) liability for defects already present at the time the contract was concluded pursuant to Sec. 536a BGB is excluded.

(6) Work deliverables. For work deliverables subject to acceptance, evosystems warrants that they materially conform to the agreed service description at the time of acceptance. No warranty rights under contract-for-work law exist for services and consulting services. In particular, no warranty claims exist for impairments caused by incorrect or incomplete data provided by the Customer, changes made by the Customer or third parties, use not in conformity with the contract, system environments not the responsibility of evosystems, changes to or outages of third-party systems, APIs or AI models occurring after acceptance, or other circumstances within the Customer's area of responsibility.

(7) In the event of a defect for which evosystems is responsible, evosystems is initially entitled to remedy it within a reasonable period. evosystems decides on the appropriate manner of remedy, taking the Customer's interests into account. This may take the form, in particular, of fixing the defect, replacement, adaptation, or the provision of a reasonable workaround. If remedy ultimately fails, the Customer may, in accordance with the statutory provisions, reduce the fee or – if the statutory requirements are met – rescind the affected part of the work deliverable.

(8) The Customer will promptly report any defects and other faults to evosystems in text form, describing them in sufficient detail for evosystems to reproduce and understand the fault. The Customer must provide the resources necessary to remedy the fault (trained staff and system time).

(9) Sec. 14 applies to claims for damages and reimbursement of futile expenditure arising from defects.

Sec. 13 Third-Party Intellectual Property Rights

(1) evosystems warrants, within the scope of statutory provisions, that the services and work results created by evosystems itself and used in conformity with the contract do not infringe any third-party rights that would preclude the agreed use. This does not apply to components specified, provided or subsequently modified by the Customer, nor to third-party and open source software, for which the respective licence terms apply, nor to AI-generated work results (Sec. 6 (13)).

(2) If a third party asserts claims against the Customer alleging infringement of an intellectual property right, the Customer will notify evosystems without delay and provide evosystems with all information required to review the matter and defend against it. evosystems is entitled, but not obliged, to conduct the dispute with the third party, in and out of court, on its own. The Customer may not acknowledge third-party claims or settle them without evosystems' prior consent.

(3) In the event of a justified infringement of a third party's rights, evosystems may, at its discretion, (1) obtain a sufficient right of use for the Customer, (2) modify the affected service so that no infringement remains, or (3) replace the affected component with an equivalent solution.

(4) evosystems will, within the liability limits of Sec. 14, indemnify the Customer against all finally adjudicated damages, to the extent these are based on a defect of title for which evosystems is responsible. evosystems is in particular not liable where third-party claims are based on the Customer having modified the service or used it in breach of the contractually agreed purposes and conditions of use.

Sec. 14 Liability

(1) evosystems will pay damages or reimburse futile expenditure, regardless of the legal basis (e.g. breach of contract, tort), only to the following extent:

a) in full, in cases of intent and gross negligence;

b) in all other cases, only for breach of a material contractual obligation that is essential to achieving the purpose of the contract and on whose fulfilment the Customer may therefore rely, and in each case limited, per damage event, to compensation for the typical and foreseeable damage, which the parties agree to limit as follows:

Type of serviceLiability cap per damage event
Continuing obligations (in particular provision of MarkX™, hosting and operating services, maintenance and support, service plans, Managed Services, consulting retainers)The amount of one year's fees (the sum of 12 monthly fees) for the affected service, but at least EUR 25,000
Project and other services100% of the net fee agreed for the project that caused the damage, but at least EUR 10,000 and at most EUR 50,000

The parties may agree a different liability cap in the offer, in particular for services carrying an increased risk of damage.

c) Liability for indirect damages and other consequential damages, such as those arising from production or business interruption, loss of profit, or other financial losses, is excluded, subject to the mandatory statutory liability for intent.

(2) In the event of data loss, evosystems is only liable for the damage that would also have occurred if the Customer had carried out regular and proper electronic data backups, unless evosystems caused the data loss intentionally or through gross negligence.

(3) The parties are aware that the use of AI Systems carries risks that evosystems can, at best, reduce but not entirely eliminate, even when exercising customary care (in particular inaccuracies, so-called hallucinations, or other incorrect or incomplete information). evosystems is not liable for such risks, provided it complies with the due-diligence and review obligations agreed in Sec. 6.

(4) Statutory liability for damages resulting from injury to life, body or health, under the German Product Liability Act, and in the case of an assumed guarantee or fraudulent concealment of a defect, remains unaffected by the foregoing provisions.

(5) To the extent evosystems' liability is excluded or limited under the foregoing paragraphs, this also applies to the liability of evosystems' employees, other staff, legal representatives and vicarious agents.

Sec. 15 Force Majeure

evosystems is not liable for events of force majeure that render the contractual services impossible or materially impede or temporarily hinder proper contract performance. Attacks on computer systems from outside that cannot be warded off with technically and economically reasonable effort according to the state of the art, and that impair the functioning of the affected computer system to more than an insignificant extent, are also considered cases of force majeure.

Sec. 16 Confidentiality; Access Credentials

(1) The parties undertake to keep confidential all trade and business secrets of the other party entrusted to them, made accessible to them, or otherwise brought to their knowledge, and to use such confidential information only for the contractually intended purpose. The parties will only grant access to confidential information to those employees, advisors and subcontractors who need to know it for the purposes of contract performance (the "need-to-know" principle) and who are contractually bound to confidentiality.

(2) evosystems' confidential information includes, in particular, the software in all forms of code and expression, as well as prompts, system prompts and agent configurations. The Customer is prohibited from obtaining evosystems' confidential information by way of reverse engineering. Reverse engineering is understood to mean all acts, including observing, testing, examining and disassembling, aimed at obtaining confidential information. Mandatory statutory copyright provisions remain unaffected.

(3) The confidentiality obligation does not apply to confidential information that the respective recipient already knew, without any obligation of confidentiality, prior to disclosure, or that is or becomes generally known through no fault of the recipient, or that is lawfully disclosed to the recipient by a third party without any confidentiality obligation, or that the recipient can demonstrate was independently developed.

(4) The confidentiality obligation continues for five (5) years after termination of the contract. For trade secrets within the meaning of the German Trade Secrets Act, the confidentiality obligation continues for as long as the information concerned is protected as a trade secret. Confidentiality obligations arising from an existing confidentiality agreement and/or from statute remain unaffected.

(5) The Customer is prohibited from disclosing its access credentials for the software to unauthorised third parties. All access credentials must be kept securely so that third parties cannot access them. The Customer will notify evosystems without delay if there is any suspicion that unauthorised third parties may have obtained knowledge of them. If such a suspicion exists, evosystems is entitled to temporarily suspend the Customer's access to the software.

Sec. 17 Data Protection

(1) Insofar as data provided by the Customer to evosystems relates to identifiable individuals, the Customer is the controller responsible for compliance with data protection provisions, in particular the GDPR, in this respect. The Customer will ensure that the statutory requirements relevant to transmission to, and processing by, evosystems are met.

(2) The terms of the separate data processing agreement pursuant to Art. 28 GDPR apply to evosystems' processing of personal data on the Customer's behalf. Within their scope of application, these take precedence over the terms of these Terms.

(3) evosystems will ensure that personal data is only transferred to third countries outside the EU where an adequate level of protection exists under applicable data protection law, for example on the basis of an adequacy decision by the European Commission, or where appropriate safeguards, such as standard contractual clauses, have been agreed.

Sec. 18 Data Backup

(1) Where a contract for hosting by evosystems exists between evosystems and the Customer (the standard arrangement for MarkX™), evosystems undertakes technical data backup within the contractually agreed scope. However, evosystems has no backup, archiving or diligence obligations regarding data and content transmitted and processed by the Customer beyond hosting itself.

(2) Where no such contract exists, the Customer is itself responsible for the proper archiving and backup of its data through the regular creation of backup copies appropriate to the risk. evosystems assumes no contractual obligations regarding data backup in this respect.

(3) The Customer is and remains responsible for complying with commercial and tax-law retention obligations and periods.

Sec. 19 Term and Termination

(1) Unless otherwise agreed in the individual contract, continuing obligations have a binding initial minimum term of one (1) contract year. Ordinary termination is first possible with effect from the end of the binding initial minimum term. The contract is renewed for a further (1) contract year upon expiry of the binding initial term unless terminated by either party with three (3) months' notice to the end of its respective term.

(2) If the Customer adds further chargeable modules or resources during the contract term, the term of the contract applies accordingly to these contract extensions, i.e. a uniform term applies to the entire contractual relationship.

(3) A change to a higher Factory tier is possible at any time with effect from the next calendar month. A change to a lower Factory tier is possible at the end of the respective current contract term.

(4) One-off projects and consulting services end upon complete performance of the agreed services. The statutory provisions apply to termination of work deliverables, unless effectively agreed otherwise. In the event of termination, the services rendered in conformity with the contract up to the point the termination takes effect, as well as any other amounts payable under statutory provisions, will be invoiced.

(5) Both parties have the right to terminate the contract for cause without notice. Good cause exists for evosystems, in particular, where the Customer is in default of payment for a substantial part of the fee, despite a reminder and a reasonable grace period, or otherwise breaches material contractual obligations. At its discretion, evosystems may, where good cause exists, first temporarily suspend the Customer's access to the software and request the Customer, within a reasonable period, to remedy the breach or fulfil the contract. Further rights of evosystems remain unaffected.

(6) Any termination requires at least text form to be effective, unless a stricter form is prescribed by law. Partial termination of the contract or of individual services is excluded.

(7) Upon termination taking effect, all usage rights to the software granted under the affected contract automatically end.

Sec. 20 Consequences of Termination, Data Export, Right to Switch Providers

(1) Following termination of the contract, evosystems will make the Customer's data available for retrieval by electronic data transfer for a period of 30 calendar days, as a structured export in a common format (e.g. CSV or Excel). evosystems is not obliged to store, archive and/or keep the Customer's data available for retrieval by the Customer beyond this period; deletion takes place insofar as no statutory retention obligations apply.

(2) In the event of termination of the contract, evosystems will provide reasonable support to the Customer in transitioning to a successor provider. "Successor provider" means the Customer itself or a third party commissioned by the Customer. The Customer owes evosystems a fee, based on effort, at the daily rates applicable at the time the support is rendered.

(3) Right to switch under the Data Act. Where evosystems' services meet the requirements of a data processing service within the meaning of Art. 2 No. 8 of the Data Act, the Customer has the right to switch providers as described below. This right does not exist where the services were made available to the Customer on a time-limited basis for testing purposes.

(4) Without prejudice to the other termination rights, the Customer is entitled to terminate the contract and switch to another provider offering the same type of service. Switching also includes a transition to the Customer's own IT infrastructure (insourcing) and the deletion of the Customer's exportable data. The transferable or exportable data categories are set out in the respective contract annex.

(5) The Customer has the right, with 30 days' notice, to initiate the switch and the process for terminating the contract by way of a clearly formulated notice of intent in text form to evosystems (the "Notice Period"). This right also exists during the contractually agreed initial minimum term and any subsequent renewal periods. The Customer will inform evosystems, no later than the expiry of the Notice Period, of (1) the type of switch it intends to carry out, (2) the parts of the services and/or data in respect of which the switch is to be carried out, and (3) the technical information relevant to carrying it out and, if applicable, the contact details of the new provider.

(6) evosystems will, upon request, provide the Customer or its service provider with reasonable support during the switch within a transition period of 30 calendar days from expiry of the Notice Period, and will provide all necessary information (in particular regarding known risks of the switch). During the transition period, evosystems will continue to provide the services in accordance with the contract and ensure the continued security of the Customer's data. If a switch is not technically feasible within the transition period, evosystems will notify the Customer of an alternative transition period, the duration of which may not exceed seven (7) months. The Customer has the right, by unilateral declaration no later than the end of the initial transition period, to extend the transition period once by a period it considers reasonable, but by no more than three (3) months.

(7) The Customer has the option, during a further retrieval period of 30 calendar days immediately following the end of the transition period, to retrieve its exportable data.

(8) For as long as, and to the extent that, the contract has not ended, evosystems retains the right to payment of the agreed fees. If the contract is terminated under the right to switch before expiry of the contractually agreed term, the Customer will pay evosystems 50% of the fees that would have accrued from the date of contract termination until the next ordinary termination date. Support services going beyond the statutory obligations will be invoiced based on effort at the daily rates then applicable.

(9) If, instead of switching, the Customer wishes to use another provider's data processing service in parallel with evosystems' service, evosystems will maintain the security of the Customer's data as well as the continuity and contractual functioning of the service. In this case, the Customer must reimburse evosystems for the extraction costs it incurs.

Sec. 21 Non-Solicitation

The parties undertake, during the term of a project and for twelve (12) months after its completion, not to specifically induce employees of the other party who were directly and materially involved in the project to change employer. Applications made in response to general public job postings, or applications made without prior targeted approach by the other party, do not constitute solicitation. Further statutory claims remain unaffected.

Sec. 22 Reference Use

(1) The Customer permits evosystems, after the contract is concluded, to use the Customer's company name, as well as the Customer's business identifiers and logo, as a reference. This includes, in particular, use on evosystems' website, in presentations, reference customer lists, and on social media channels.

(2) The publication of specific project content, performance metrics, statements by the Customer's employees, testimonials, case study reports, or detailed reference customer stories requires the Customer's prior release in text form. evosystems is entitled to create such content and submit it to the Customer for release.

Sec. 23 Amendments to these Terms

(1) evosystems is entitled to amend these Terms to the extent necessary to adapt to a change in the legal situation, to supreme court case law, to technical developments, or to a changed range of services, and provided the Customer is not unreasonably disadvantaged as a result. Amendments do not extend to the principal contractual obligations or the fees.

(2) Amendments will be notified to the Customer in text form at least six (6) weeks before they take effect. If the Customer does not object within six (6) weeks of receiving the notice of amendment, the amended Terms are deemed accepted; evosystems will specifically draw the Customer's attention to this legal consequence and to its right to object in the notice of amendment.

(3) In the event of an objection, the previous Terms continue to apply; the right of either party to ordinary termination remains unaffected.

Sec. 24 Final Provisions

(1) Any assignment or transfer of contractual rights and obligations by the Customer to third parties – including the Customer's affiliated companies – requires evosystems' prior consent in text form. Sec. 354a of the German Commercial Code (HGB) remains unaffected.

(2) Individual agreements between the parties take precedence over these provisions, regardless of their form.

(3) The laws of the Federal Republic of Germany apply, excluding the conflict-of-laws rules of private international law and excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

(4) The exclusive place of jurisdiction for all disputes arising in connection with the contract is, to the extent legally permissible, the court having jurisdiction over evosystems' registered office.

(5) If individual provisions are or become invalid or unenforceable, or if there is a gap requiring completion, the validity of the remaining provisions is not affected. In place of the invalid, unenforceable or missing provision, the parties will agree on an effective provision that comes as close as possible to what the parties economically intended at the time the contract was concluded.

Version 1.0 · As of: 11 September 2026