General Terms and Conditions of SERVIVA GmbH

§ 1 Scope of application

The following terms and conditions constitute the exclusive basis for all legal relationships between our clients and us.
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.

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”.

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

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

§ 3 Contract amendment

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.
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

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.
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.).
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.
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).
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.
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.
The provision of legal or tax-advisory activities by SERVIVA is excluded as part of the contract.

§ 5 The client’s obligations to cooperate

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.

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.

The client undertakes to inform SERVIVA immediately of any changes to the data provided and to reconfirm the current accuracy within 15 days of receipt upon request from SERVIVA. This applies in particular to

Name and postal address of the customer,
the name, postal address, e-mail address and telephone and fax number of the technical contact person for the system,
the name, postal address, e-mail address and telephone and fax number of the administrative contact person for the system

If the client does not perform the acts of cooperation incumbent on it in accordance with points 1 to 3 above, or does not perform them in full, despite being requested to do so by SERVIVA and a deadline being set, SERVIVA is entitled to terminate the underlying contract without notice. In this case, SERVIVA may invoice either the services actually provided up to the date of cancellation or, instead, the agreed or forecast total remuneration less expenses saved as a result of the premature termination of the contract.

In the context of brokerage orders, the client authorises SERVIVA to forward the data in accordance with points 1 to 3 to the manufacturer of the software to be used.

The client undertakes to keep passwords received from SERVIVA for the purpose of accessing its services strictly confidential and to inform SERVIVA immediately in writing as soon as it becomes aware that the password may have become known to unauthorised third parties. If, due to the client’s fault, third parties use SERVIVA’s services by misusing the passwords, the client is liable to SERVIVA for the agreed usage fee and damages.
The client shall also thoroughly test each programme to ensure that it is free of defects and usable in its specific situation before starting to use the programme operationally. This applies in particular to programmes received from SERVIVA as part of the warranty and maintenance. The client is expressly informed that even minor changes to the software can affect the operability of the entire system.

§ 6 Deadlines and dates

The deadlines and/or dates agreed in the contracts are non-binding unless they are expressly agreed as binding.

If SERVIVA is unable to meet an agreed deadline(s) for reasons for which it is not responsible (in particular, but not exclusively, in cases of force majeure, strikes, official measures, pandemics, epidemics, natural disasters, etc.), SERVIVA shall inform the client immediately and set a new deadline(s) appropriate to the circumstances.

If a deadline/date is exceeded due to a lack of cooperation on the part of the client, the deadline/date shall be extended/postponed at least to the same extent, without prejudice to SERVIVA’s other rights.

The client may request SERVIVA to provide the service one month after a non-binding deadline(s) has/have been exceeded, setting a reasonable grace period SERVIVA shall not be in default before the grace period has expired.

If the client is entitled to compensation for damages caused by delay, this shall be limited to 0.5% for each completed week of delay in the event of slight negligence on the part of SERVIVA, but to a maximum of 5% of the agreed remuneration for the part of the service in respect of which there is a delay.

§ 7 Prices and terms of payment

The agreed prices are net prices plus the applicable statutory value added tax.
Unless otherwise agreed in writing in individual cases, SERVIVA’s services are charged and remunerated according to SERVIVA’s current price list plus disbursements, ancillary costs, expenses, etc. The current price list is available to the client on request. The current price list will be made available to the client on request.
SERVIVA is entitled to invoice reasonable advance payments for the services expected to be provided or reasonable instalments for services already provided.

SERVIVA’s invoices are due for payment without deductions upon receipt by the client.
The client is only entitled to offset claims that are undisputed by SERVIVA or have been legally established against SERVIVA. The client is only authorised to exercise a right of retention to the extent that its counterclaim is based on the same contractual relationship.

§ 8 Liability

SERVIVA is liable for damages – regardless of the legal grounds – only in cases of intent and gross negligence.
However, SERVIVA shall also be liable in cases of simple negligence for damages arising from

– injury to life, limb or health or breach of a material contractual

– breach of a material contractual obligation. Material contractual obligations are obligations whose breach jeopardises the achievement of the purpose of the contract and on whose compliance the other party regularly relies and may rely. In this case, SERVIVA’s liability is limited to compensation for foreseeable, typically occurring damage.

The above limitations of liability do not apply if SERVIVA has fraudulently committed a breach of contract or has assumed a guarantee.

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.

Insofar as SERVIVA’s liability is excluded or limited, this also applies to the liability of SERVIVA’s legal representatives, employees and vicarious agents.
SERVIVA is not liable for the functionality of data networks, servers or data lines to SERVIVA’s data centre.

§ 9 Rights of use

Upon full payment of the invoices invoiced, the client acquires the exclusive and transferable right of use to the service results documented by SERVIVA, which is unlimited in terms of territory, location and time. This also includes the right to reproduce, transfer to image, sound and data carriers, process, edit, redesign, translate and utilise in modified form or in the original or transfer in whole or in part to third parties without SERVIVA’s consent.
Source codes, software, concepts and/or methodology used by SERVIVA to determine the documented performance results are not transferred and are therefore not subject to the rights of use pursuant to paragraph 1 above.
SERVIVA shall not be prevented from utilising the results of services achieved using source codes, software, concepts, methodology and knowledge that it has applied, further developed or gained during the execution of this contract for similar tasks for third parties.

§ 10 Confidentiality

Confidential information within the meaning of this provision is all embodied or verbal information and data, such as technical or business data, documents or knowledge as well as samples, which one of the contracting parties receives in connection with the contract (in particular also an offer prepared by SERVIVA and sent to the client prior to conclusion of the contract) and which has been expressly marked as confidential or is recognisable as confidential under other circumstances.
contract) and which have been expressly labelled as confidential or are recognisable as confidential in other circumstances.

The contracting parties undertake to use all confidential information
– to use it exclusively within the framework of the fulfilment 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 within the framework of this contract and who are obliged to maintain confidentiality in accordance with this agreement, unless they are subject to a general obligation of confidentiality on the basis of their employment contract;
– to maintain confidentiality, applying the same level of care as with regard to their own information of similar importance, but at least an appropriate level of care.

The obligation to maintain confidentiality shall not apply to confidential information that is or becomes publicly accessible through no fault of one of the contracting parties, provided that confidential information shall not be deemed publicly accessible merely because only parts of it are or become publicly accessible.

This obligation also does not apply to confidential information that must be disclosed due to a binding official or judicial order or mandatory legal provisions, provided that the contracting parties have been informed of the respective disclosure in writing and the contracting parties have previously exhausted all legal possibilities to prevent disclosure.
The contracting parties may require each other to immediately return or destroy confidential information in physical and/or electronic form and any samples/quotations submitted for a period of up to three months after termination of the order.
The contracting parties undertake to confirm the return or destruction in writing within 14 days of receipt of the corresponding request.

§ 11 Data protection

SERVIVA collects, processes and uses the customer’s personal data without further consent only to the extent that it is necessary for the establishment and fulfilment of the contract and for billing purposes. For further details, SERVIVA refers to the separate privacy policy, which is available free of charge in a storable and printable version at ‘www.serviva.com/impressum/datenschutzerklaerung’.
SERVIVA expressly draws the client’s attention to the fact 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.

§ 12 Duration and termination of the contract, cancellation

The contract ends when the service has been provided in full.
If the contract concerns recurring/continuous services, it shall end upon expiry of the period expressly stated in the contract or by ordinary written cancellation upon expiry of the agreed period of notice. If a cancellation period has not been expressly agreed, the cancellation period shall be 3 months to the end of a contractual year.
The right of both contracting parties to terminate the contract without notice for good cause remains unaffected.
Any cancellation must be made in writing to be effective.
SERVIVA is authorised to release the human and material resources reserved for the customer after the order has been completed. All rights of the customer to these resources expire at the latest with this release.
If third parties assert claims against SERVIVA due to actual or alleged infringement of rights, SERVIVA is authorised to suspend IP hosting in order to prevent damage to the customer and SERVIVA.

§ 13 General, place of fulfilment, place of jurisdiction, applicable law

The above provisions reflect the agreements made in full. There are no collateral agreements. Amendments and supplements must be made in writing. This also applies to the amendment of this written form clause.
Should individual provisions be or become invalid or ineffective in whole or in part, this shall not affect the validity of the remaining provisions. Any provisions of this contract that are not included or are invalid shall be replaced by statutory law (Section 306 (2) BGB). If such statutory law is not available in the respective case (loophole) or would lead to an unacceptable result, the contracting parties shall enter into negotiations to replace the non-included or ineffective provision with an effective provision that comes as close as possible to it in economic terms. Both contracting parties undertake to make the necessary declarations of intent in this respect.
The place of fulfilment for all contractual obligations is Berlin.
The place of jurisdiction for merchants, legal entities under public law or special funds under public law is Berlin. Should a legal dispute fall within the jurisdiction of the local courts, the jurisdiction of the Charlottenburg Local Court is agreed.
The law of the Federal Republic of Germany shall apply to the exclusion of all international and supranational (contractual) legal systems, in particular the UN Convention on Contracts for the International Sale of Goods.

Berlin in November 2024