1.1 A contract concerning the use of services of the Hövener & Trapp Evision GmbH (in the following "Evision") comes off only with the acceptance of a customer request by Evision. These terms and conditions provide a basis of any conclusions of contracts with Evision. They apply also to all further contracts without express notification. These terms and conditions shall be deemed to have been automatically accepted when a computer of Evision is accessed for the first time. Counter confirmations by the user making a reference to his own terms and conditions of business or purchase are hereby disallowed. Agreements, that deviate from the present conditions including this written form clause, must be in writing in order to be valid.

1.2 Contradicting regulations in individual contracts and appendices proceed these terms and conditions.

2.1 The range of activities of Evision (below also called "services") results of the service specification of Evision as well as on the facts in the contract referring on that. The service specification can be requested at Evision.

2.2 The Internet and telecommunications networks are world-wide systems of independent but connected networks and computers. Evision only has influence on those systems, which are located within its own network, and therefore cannot guarantee problem free services.

2.3 It is well-known to the customer that Evision provides the services for other customers also on the same server. This can occasionally result in impairments of use for the customer.

2.4 Evision is not responsible for the information transfered via their services, neither for their completeness, legal standard, correctness or topicality, nor outside of its sphere of influence for the fact that they are free of third party claims or free from virus infestation.

2.5 Evision is entitled to change the services as well as these conditions, to the extent that Evision regards this as reasonable for technical reasons or due to the market developments in its reasonable judgement and thereby the interests of the customer, in particular the proportion between performance and counter-performance. In the range of the application of the telecommunications customer protection regulation § 28 TKV remains unaffected.

2.6 As far as Evision provides services and achievements free of cost, these may be interrupted at any time without prior announcement. Out of it no claim, reduction or refunding may be made for damages.

3.1 The customer has to make sure to provide a functioning and sufficient telecommunications access to the services from Evision at his own expense. The customer also has to make available the necessary hardware and software for his own system for use of the services, as far as these are not supplied due to express agreement by Evision. The customer himself is responsible for the adherence of the legal regulations and the usual care of appropriate safety precautions regarding this access and the own systems.

3.2 The customer is liable to use the services of Evision properly. He is in particular obligated: a) to communicate immediately to Evision if conditions for reductions of the tariff are fall upon; b) to guarantee the fulfilment of official editions as well as the grant of official permissions, as far as these may be necessary either at present or in the future for the participation in the services of the Evision; c) to accommodate the recognized principles of data security in particular for keeping passwords secret and for changing passwords immediately, if the assumption exists that unauthorized third parties attained knowledge of it; d) to notify Evision about recognizable shortcomings or damages (failure report); e) to arrange all measures within reasonable bounds to enable the determination of the shortcomings or damages and the causes of the same, or to facilitate and accelerate the removal of the faults; f) after the dilivery of a failure report, to repay to Evision all the exp
enses incurred by it for checking its facilities, if and to the extent that it is found after the check that the customer has deliberately or carelessly caused the fault, or that the fault lay within his area of responsibility and he had failed to recognise this due to carelessness; g) to indicate each of the following to Evision within one month:
- all changes in the legal constitution of the customer that take place due to succession or other universal succession,
- in case of not-legally responsible commercial companies, inheriting communities, not-legally responsible assiciations, societies of civil right or customer communities, the entry or exit of persons into the community,
- all changes in the name of the customer or his designation under which it is listed in the company documents of Evision.

4.1 The customer commits himself: a) not to use the services provided by Evision neither for offering nor for accessing of illegal information; b) to offer no information with injustice or immoral contents by setting of hyperlinks to such contents, that may be offered by third parties; c) to abide by the applicable laws against the distribution of the contents that are illegal or may be a danger to youth, and to ensure, among other things, the careful handling of passwords and to use filter software to ensure that the contents that may have the potential to undermine the morality of children or young persons or adversely affect the well-being of the same do not fall into the hands of or come to the knowledge of the persons who are protected by these laws; d) that national and international copyright as well as other protected rights, such as for example the name and trade marks rights of third parties are not violated; e) that the services are not used to cause damage or nuisance to t
hird parties, in particular through unauthorised entry into external systems, spreading of viruses of all types, or through sending of unsolicited e-mails or SMS (spamming); f) not to affect the systems used by Evision for the services in a way, which can damage Evision or third parties.

4.2 If the customer violates the provisions of point 4.1, or there is dispute as to whether the content of the website used by the customer violates laws in force, Evision shall have the right to block the same until the legal position is settled by the courts.

4.3 If the customer violates the provisions of point 4.1, Evision shall have the right - after warning notices have failed to produce any effect - to terminate the contractual relationship immediately.

4.4 The details of the collaboration between users amongst each other can be regulated by the Evision within the framework of a user ordinance. Violations of essential conditions of this user ordinance will authorise Evision to terminate the contract immediately after warning notices have failed to produce any effect.

5.1 A direct use of the services of Evision by third parties is only permitted by permission of Evision. In particular, therefore, the customer is not a uthorised to give his passwords to third parties to use the services, or to make the same available, or to otherwise enable such utilisation.

5.2 If utilisation by third parties is permitted, the customer has to instruct such third parties concerning the use of the ervices in the appropriate manner. If the utilisation by third parties is not permitted, no claim may be made for a reduction, reimbursement or damage compensation claim.

5.3 The customer will also have to pay the fees that are payable within the framework of the access and utilisation facilities made available to the customer through the authorised or unauthorised utilisation of the services of Evision by third parties. The customer shall be liable to Evision for all the violations of the provisions contained in these terms and conditions due to the utilisation of the services by authorised or unauthorised third parties.

6.1 If the hardware or software to be delivered under the agreement is defective, Evision will correct the fault or will provide problem-free substitute products. If the repair or delivery of substitute products is not possible, the customer may demand cancellation of contract or a reduction in the purchase price.

7.1 Unless expressly agreed otherwise, the customer shall be provided with non-exclusive, non-time-bound and non-transferrable utilisation rights on software for the own internal use. The software may not be made available to third parties. Third-party license conditions shall apply to standard products of third parties, to the extent that they contain additional limitations. The source code will only be handed over if this has been expressly agreed.

7.2 If an agreement is made in deviation to point number 7.1, whereby the utilisation right for a software can be transferred to a third party, all copies must carry the original copyright and all other protective markings.

7.3 In case in connection with the object of the agreement in question (software development or execution of other projects), claims are made in connection with the violation of patent or a other valid law, the customer is bound to inform the Evision immediately of the same in writing. The customer should not take any legal action without the prior consent of Evision, and should leave it to Evision to conduct the defence against such claims, in particular the conduct of the legal proceedings, including settlements.

7.4 If the utilisation of the object of an agreement or parts of the same is prohibited by a judicial decision, or in the opinion of the Evision, there is no danger of a complaint based on the violation of protected rights, Evision shall have the right to choose between the following measures: a) to change the object of the contract in such a manner that protected rights are no longer violated; b) to provide the customer with the right to continue to use the object of the contract; c) to replace the object of the contract with a contractual object that does not violate any protected rights, and either satisfies the requirement of the customer or is equivalent to the contractual object that has been replaced; d) to take back the contractual object and to repay to the customer the fees paid after deducting an appropriate amount for utilisation and loss in value.

7.5 The above-mentioned obligation shall not apply to contractual objects in which the violation of protected rights is based on a concept of the customer or is based on the fact that the contractual object has been modified by the customer or in combination with contractual object that were not provided by Evision.

8.1 The prices for goods shall be inclusive normal paching and exclusive forwarding expenses unless different conditions are agreed.

8.2 The responsibility shall pass to the customer as soon as the consignment is handed over to the person implementing the transport or left the business premises of Evision for dispatching. If the dispatch becomes impossible independent of negligence of Evision, with the announcement of the readiness of shipment the risk shall pass to the customer.

8.3 Evision shall have the right to make part deliveries, unless the customer proves that the part delivery is not of interest for him.

9.1 All agreed remunerations shall be exclusive of Value Added Tax (VAT), unless expressly agreed otherwise, and also exclusive of other duties or consumption taxes.

9.2 All remuneration for adduced achievements are due within 14 days after the arrival of the respective invoice.

9.3 Evision can make price changes to a reasonable extent during the duration of the contract if essential cost factors have changed. The same right shall also apply in future if the customer uses the services to such an extent that Evision has to incur unusual or special costs. The agreement with the customer shall contain further provisions in this regard.

9.4 For every direct debit or cheque that is not realised or is returned unpaid, the customer will have to pay Evision the cost incurred in connection with the same.

9.5 Unless agreed otherwise, invoices for good deliveries are payable, without deduction, 14 days after the the invoice receipt. Goods delivered shall remain the property of Evision until the full payment of the purchase price is received; pledging or transfer of ownership by way of security by the customer is not permissible. Processing or reorganisation will always take place for Evision as manufacturer, but without any obligation for Evision. If the (co)ownership of Evision comes to an end through fusion or sale, it shall be deemed to have been agreed that the claims of the customer resulting from the same have been transferred to Evision - to a proportionate extent in the case of fusion.

9.6 If the customer claims that the connection fees charged to him were not incurred by him or by the third parties for whom he is responsible, he will have to prove the same, as far as Evision is not obligated it according to the valid regulations.

10.1 In the case of delays in payment by the customer, Evision shall have the right to stop its services. These prescriptions apply in the range of application of the telecommunication customer protection regulation. In such case, the customer shall continue to be bound to pay the fees that fall due monthly.

10.2 In the case of payment delays, Evision shall also be authorised to levy late payment interest of five (5) per cent points above the base rate published by the German Federal Bank.

10.3 Evision may terminate the contract without adherence of a time limit if the customer does not pay the fees, or an significant part of the fees, for two consecutive months.

10.4 Evision reserves the right to enforce further claims arising due to delay in payments.

11.1 In contracts without minimum duration the contract is terminable by both contracting parties within a period of four weeks to the end of the quater.

11.2 In contracts with minimum duration the contract is at the earliest terminable with termination of the minimum duration. Details are contractually regulated. Beyond that 10.3 applies.

11.3 After termination of the contractual relationship, the items and documents belonging to Evision, which may have been handed over to the customer, should be returned to Evision immediately, in any case no later than 14 calendar days after the termination of contract, at the risk and expense of the customer. If the c ustomer does not fulfil this duty to return the items as above, he shall be liable to pay damage compensation amounting to the cost of purchasing the items anew, unless a higher or lower damage is specified.

11.4 In the case of midterm termination of the contract due to a reason which to be justified by the customer, Evision is authorised to require compensation for damages in the amount of the fees, which would have resulted from the average of the last six months before completion (at shorter running time with the expected average which can be determined by Evision in their own discretion) for the remaining contract time, decreased by an amount of discounting on basis of an interest rate two per cent points above the interest rate which was published by the German Federal Bank, so far no higher or lower damage is proven. Further requirements remain unaffected.

12.1 The customer may only set-off his undisputed or legally well-founded claims, against counterclaims of Evision. The customer shall be entitled to enforce a right of retention only against counter-claims under the same contract.

13.1 Delivery and service provision delays arising due to force majeure conditions and events that make performance by Evision much more difficult or impossible - which shall include, in particular, strikes, lockouts, governmental orders, the breakdown of communication networks and gateways of other operators, even if they happen to be suppliers or sub-contractors of Evision, or their sub-contractors, sub-suppliers, etc. in which the operators of sub-nodal remote communication computers authorised by Evision, Evision shall have the right to suspend the delivery or the service for the duration of the event together with an appropriate starting-up time. If such events continue uninterruptedly for more than 60 days, each of the parties shall be entitled to terminate the contract with immediate effect as per point number 11.3.

13.2 The liability of Evision or its representatives or staff shall only exist in case of violation of essential contractual obligations, the fulfilment of which the other party is permitted to place special reliance on ("cardinal obligations"). This relates to the liability for damage compensations, in particular due to default, non-fulfilment or incomplete fulfilment or non-permissible action - even in connection with guarantee obligations. The above-mentioned exclusion shall not apply to cases of wilful action and gross negligence or due to liability in connection with assured characteristics.

13.3 To the extent that cardinal obligations within the meaning of point number 13.2 are violated, for each instance of damage, Evision shall be liable only to the extent of an amount corresponding to an average monthly remuneration under the concerned contract. For average calculation, the six months preceding the instance of damage or, if the contract period is shorter, the average monthly remunerations in the reasonable judgement of Evision, in the future, shall be used as a basis. The same delimitation applies to all in 13.2 specified adhesions also with deliberate or roughly negligent violation of any obligations by executing assistance, which are not legal representatives or leading employees of Evision.

13.4 In each case the liability for rough negligence is limited on actions of the circle of acquaintances specified in 13.3 sentence 3 also for resolution, to the typically in such cases predictable damage.

13.5 Requirements against Evision on compensation of damages, excluded such from illegal action, fall under the statute of limitations in two years.

13.6 In any case the liability under the product liability law remains unaffected.

14.1 The contract is subjekt to the german law. The application of the UN-purchase law is excluded.

14.2 The exclusive place of jurisdiction is Dortmund.

14.3 The present terms and conditions are a translation of the German version of the terms and conditions of the Evision. In case of doubt, the wording of the German version shall have legal force.

An invalid regulation in these terms and conditions, in the single contract or its appendices does not affect the effectiveness of the other regulations as well as the contract itself.


Evision