General Terms and Conditions of SERVIVA GmbH

1 Scope of application

1. The following terms and conditions constitute the exclusive basis for all legal relationships between our clients and us.
2. Clients within the meaning of these terms and conditions are exclusively entrepreneurs within the meaning of § 14 of the German Civil Code, legal persons under public law or special funds under public law.

3. The General Terms and Conditions in the version valid at the time of the conclusion of the contract apply. These are available as storable and printable versions free of charge at “www.serviva.com/unternehmen/agb”.

4. Deviating general terms and conditions of the client shall only apply if we have expressly agreed to them in writing.

2 Conclusion of the contract

1. The offers of SERVIVA shall be in written or text form (§ 126b of the German Civil Code).
2. Offers are valid for 30 days from the date of creation resulting from the offer, unless expressly stated otherwise.
3. The client’s acceptance of orders shall also be in writing or text form.

3 Contract amendment

1. SERVIVA is entitled to change the content of the contract with the consent of the client, provided the change is reasonable for the client taking into account the interests of SERVIVA. The agreement to change the contract shall be deemed to have been granted unless the client objects to the change within four weeks after receipt of the notification of change. SERVIVA undertakes to inform the client of the consequences of a failure to object with the notification of change.
2. SERVIVA may transfer its rights and obligations under this contract to one or more third parties (assumption of contract). The client has the right to terminate the contract without notice in the event of the assumption of the contract.

4 SERVIVA services

1. The contracting parties agree that SERVIVA owes the provision of services, but not the production of a work or the achievement of any particular result. The contracting parties further agree that SERVIVA’s obligation to provide services is non-binding even if the latter undertakes to record in writing the results of its services and to prepare and submit corresponding reports, studies and the like. Such written reports, studies and the like are, unless expressly agreed upon otherwise, in particular, no reports but only the essential content of the process and the result of the services.
2. SERVIVA guarantees availability of its servers to 99% on an annual average. This does not apply to periods in which the server cannot be reached due to technical or other problems that are beyond the control of SERVIVA (force majeure, fault of third parties, etc.).
3. SERVIVA can restrict access to the services if required for the security of network operations, the maintenance of network integrity, or in particular the avoidance of serious disturbances of the network, software or stored data.
4. Unless otherwise agreed upon, a data transfer volume of 1 gigabyte per month is included in the tariff. The data transfer volume used is the sum of all data transfers associated with the job (HTTP, HTTPS, FTP).
5. When acquiring the software systems for the administration of Intellectual Property Hosting (IP Hosting) chosen by the client, SERVIVA acts as a mediator between the client and the respective software manufacturer. This means that the contract is concluded between the client and the manufacturer.
6. The consequence of this is that SERVIVA has no influence on the service features of the software supplied by a manufacturer and does not guarantee that the software ordered for the client is deliverable and executable and that it has the features expected by the customer. In addition, SERVIVA assumes no obligations to the client arising from product liability or that the software is free of third party rights from this mediation.
7. The provision of legal or tax-advisory activities by SERVIVA is excluded as part of the contract.

5 The client’s obligations to cooperate

1. The client shall provide SERVIVA with the information and documents required for the implementation of the order without delay, in full and with the correct content.

2. The client is further obligated to disclose to SERVIVA one or more persons who are authorised to make binding statements to the client in order to provide the service owed and to execute the contract.

3. If the client fails to provide the services required of him/her in accordance with points 1 and 2 above despite having been requested to do so by SERVIVA in addition to a deadline, SERVIVA shall be entitled to terminate the underlying contract without notice. In this case, SERVIVA may invoice either the services actually provided up to the time of termination or the agreed or forecast total remuneration minus expenses saved by the premature termination of the contract.

4. In the context of mediation orders, the client authorises SERVIVA to forward the data in accordance with points 1 and 2 to the manufacturer of the software to be used.

5. The client undertakes to keep the passwords received by SERVIVA for the purpose of accessing their services strictly confidential and to inform SERVIVA immediately in writing as soon as it becomes aware that the password may have been disclosed to unauthorised third parties. If, due to the client’s fault, third parties use SERVIVA services through misuse of the passwords, the client is liable to SERVIVA for the agreed usage fee and damages.

6. In addition, the client shall thoroughly test each program for flawlessness and usability within the specific situation before starting to use the program. This applies in particular to programs that he/she receives as part of SERVIVA’s warranty and maintenance service. The client is expressly advised that even minor changes to the software can affect the operability of the entire system.

6 Prices and terms of payment

1. The agreed prices are net prices, which are payable in addition to applicable statutory sales tax.

2. Unless otherwise agreed upon in writing in individual cases, services provided by SERVIVA shall be calculated and remunerated according to the price list applicable at SERVIVA plus charges, ancillary costs, expenses, etc. The current price list will be made available to the client upon request.

3. SERVIVA shall be entitled to invoice appropriate advances for services to be provided in advance or instalments commensurate with the services already provided.

4. SERVIVA’s invoices are due without deduction as soon as the client has received them.

5. Set-off rights are only available to the customer with claims that are undisputed or legally binding against SERVIVA. In addition, the client may exercise a right of retention only if his/her counterclaim is based on the same contractual relationship.

7 Liability

1. SERVIVA shall be liable for damages, for whatever legal reason, only in cases of intent and gross negligence.
2. However, SERVIVA is liable for damages even in case of ordinary negligence due to- injury to life, body or health, or

   – the violation of a crucial contractual obligation.

   In this case, however, SERVIVA’s liability is limited to the reimbursement of foreseeable, typical damage.
   The above limitations of liability do not apply if SERVIVA has fraudulently committed a breach of contract or has assumed a guarantee.

3. Insofar as the liability of SERVIVA is excluded or limited, this also applies to the liability of the legal representatives, employees and vicarious agents of SERVIVA.

4. Claims according to § 7 para. 2 of the Telecommunications Customer Protection Ordinance (TKV) remain unaffected in any case.

8 Confidentiality

1. Confidential information in the sense of this provision includes all embodied or oral information and data, such as technical or business data, documents or knowledge as well as samples received by one of the contracting parties in connection with the contract (in particular also an offer created by SERVIVA and handed over to the client before conclusion of the contract) and which have been expressly and identifiably marked as confidential.

2. Regarding all confidential information, the contracting parties undertake to – exclusively use it in the context of the performance of this contract, not to make it accessible to third parties or to make it accessible only to those of their employees who need it under this contract and who are obliged to maintain confidentiality to this agreement insofar as they are not subject to a general obligation of confidentiality on the basis of their employment contract;- keep it confidential and to use it with the same care he/she would with his/her own information of similar importance, but at the very least with a fair amount of care.

3. The obligation of confidentiality shall not apply to confidential information that is or becomes publicly available without any of the parties being responsible for it, provided that confidential information is not deemed to be publicly available simply because only parts of it are publicly available or become available.

4. This obligation also does not apply to confidential information that is to be disclosed on the basis of a binding official or judicial order or mandatory legal provisions, provided that the parties have been informed in writing about the respective disclosure and the parties have previously exhausted all legal possibilities to prevent disclosure.

5. For a period of three months following the completion of the contract, the contracting parties may require from each other that confidential information in tangible and/or electronic form and any samples/bids submitted, be returned or destroyed immediately.

The contracting parties undertake to confirm the return or destruction of items in writing within 14 days after receipt of the corresponding request.

9 Data protection

1. SERVIVA collects, processes and uses clients’ personal data without further consent only insofar as it is necessary to establish and process the contract and for billing purposes. For further details, SERVIVA refers to the separate privacy policy, which can be downloaded free of charge in a storable and printable version at “www.serviva.com/impressum/datenschutzerklaerung”.

2. SERVIVA expressly informs the client that data protection for data transmissions in open networks, such as the Internet, cannot be absolutely guaranteed according to the current state of the art.

10 Contract duration and termination, cancellation

1. The contract ends with complete service provision.

2. If the contract has recurring/permanent services, it ends upon reaching the time limit expressly stated in the contract or by ordinary written notice of termination at the end of the agreed notice period. If a notice period is not expressly agreed upon, the period of notice shall be 3 months to the end of a contractual year.

3. This does not affect the right of both contracting parties to termination without notice due to serious reasons.

4. Any notice of termination shall be effective when given in writing.

11 General information, place of performance, jurisdiction, applicable law

1. The above regulations fully reflect the agreements made. Ancillary agreements shall not exist. Changes and amendments must be made in writing. This also applies to any amendment of the clause requiring the written form.
2. Should individual provisions be or become void or ineffective, in whole or in part, the validity of the remaining provisions shall not be affected. In place of implicated or ineffective provisions of this contract, the legal text (§ 306 para. 2 of the German Civil Code) shall be valid. If such a law is not available in the case in question (loopholes) or would lead to an unsustainable result, the contractual parties shall enter into negotiations to replace the implicated or ineffective provision with an effective provision which comes as close as possible in its economic effect. Both contracting parties undertake to make the declarations of intent required to that extent.

3. Place of performance for all contractual obligations is Berlin.

4. Jurisdiction for merchants, legal entities under public law or special funds under public law is Berlin. If a legal dispute falls within the jurisdiction of the district courts, the jurisdiction of the district court Charlottenburg shall be agreed upon.

5. The law of the Federal Republic of Germany applies to the exclusion of all international and supranational (contractual) legal systems, in particular, the UN sales law.