Terms & Conditions

SVA Software, Inc. 
General Terms and Conditions

Version April 2023

Preamble

SVA Software, Inc., 401 Hackensack Ave 4th Floor, Hackensack, New Jersey USA 07601, (hereafter “SVA”), is a wholly-owned subsidiary of the SVA System Vertrieb Alexander GmbH, Borsigstraße 26, 65205 Wiesbaden, which is one of Germany’s leading system integrators in the field of data center infrastructure. SVA’s corporate goal is to combine the respective manufacturers’ high‐quality IT products with SVA’s expertise and flexibility.

SVA offers its customers various software and services products and associated documentation in North America developed by SVA and other third-party developers (individually and collectively referred to herein as “Products”) through various authorized resellers (“Authorized Resellers”) and/or directly through SVA.  Such Products software solutions to improve IT infrastructures in ways such as performance, business continuity and data management.

These General Terms and Conditions (“GTC”) are a contract between you as a customer and persons authorized by you (individually and collectively, “You,” “Your,” “Yourself,” or “Customer”) and SVA (“We,” “Us,” or “Our” in addition to “SVA”), with regard to the access and use of Our Products made available to You. Any references to SVA shall include, where appropriate, SVA System Vertrieb Alexander GmbH and their respective employees, officers, directors, investors, agents, consultants, assignees, affiliates, partners, contractors, and any and all other individuals and organizations providing services on behalf of SVA. Please read these TOS fully and carefully before installing, accessing and using Our Products.

Importantly,We may modify these GTC at any time so be sure to check back regularly. By continuing to use or access the Products after these GTC have changed, You hereby indicate Your agreement to abide by any such revised GTC. If You do not agree to the changes, You should stop accessing and using our Products.

Article A of these GTC provides the Your and Our respective rights and obligations for Your access and use of Our Products, while the following sections contain particular additional terms and conditions with respect to specific Products We offer.

A. General section

§1 Scope

1. The terms and conditions set forth in these SVA GTC contain the rights and obligations that apply exclusively to You, the Customer and SVA for Your access and use of the Products. The terms and conditions under this Article A apply to all SVA Products that SVA may provide to You. The special conditions under Articles B to H apply additionally to the respective individual Products. SVA products are offered exclusively to business customers.
2. SVA does not recognize customer terms and conditions that may accompanying purchase orders or otherwise, whether or not such terms and conditions contradict or deviate from or supplement these GTC, unless SVA expressly accepts their validity in writing.
3. Although You are always bound by these GTC, in using additional features, products, or services you may be bound by and subject to additional terms, including but not limited to our Frequently Asked Questions (“FAQs”), guidelines, and rules applicable to certain features, components, modules, or services associated with the Products. These additional terms may be posted and modified periodically. Any and all additional terms will not change or replace these GTC regarding use of the Products. Any and all additional terms are incorporated within these GTC by reference.

§2 General

1. The placing of an order (“Order”) by You to SVA or an Authorized Reseller represents (a) a binding offer for the Product identified in such Order, and (b) Your acceptance of these GTC should SVA accept the Order.  Within four (4) weeks of receiving the Order, SVA or the Authorized Reseller acting on SVA’s behalf, can accept the Order, partially or fully, by sending an order confirmation (“Order Confirmation”) (including by electronic mail) or delivery to You of the Product(s). The Order Confirmation provided to You or documents accompanying the Product delivered to You shall specify (i) the Product(s) provided, (ii) the Effective Date and Term, and (iii) Territory that shall be subject to these GTC.  If You do not receive an Order Confirmation within the time period specified in this Section A(§2)(1), Your Offer has not been accepted, and You have no rights to access or use of the Product(s) identified therein.
2. Alternatively, Your acceptance of a written quote and/or proposal provided to You by SVA or an Authorized Reseller likewise represents Your acceptance of these GTC in connection with the Products identified in the written quote and/or proposal. In accordance with such acceptance, SVA or the Authorized Reseller will provide You with an Order Confirmation (including by electronic mail) or documents accompanying the Product delivered to You, which shall specify (i) the Product(s) provided, (ii) the Effective Date and Term, and (iii) Territory, that shall be subject to these GTC.
3. The terms of any previous offers to You issued by SVA or an Authorized Reseller for which you did not accept including such terms regarding technical description, quantity, price, and delivery time – are not and shall not be binding on SVA.

§3 Deliveries

1. The delivery period of the Products identified in the Order Confirmation begins after any SVA-identified relevant technical issues are resolved.
2. The compliance with Our obligations for delivery of Products is further conditioned on the timely and proper fulfillment of all relevant obligations by You including without restriction, fulfilling of Your duty of payment.
3. In the case of default of acceptance by You or violation of Your other obligations, SVA is entitled to reimbursement of the resulting damages including any and all additional expenses incurred by SVA.  All rights to further claims by SVA are reserved.
4. In the case that You obtain the SVA Products from an Authorized Reseller (and not directly from SVA), the conditions of delivery of the Authorized Reseller may be applicable.
5. SVA is entitled to perform partial deliveries/services if this is reasonable for You.
6. For the resale by SVA of third-party Products, the delivery times/deadlines are contingent on SVA receiving the correct third-party Products, without defects, complete, and on time. Events of any kind for which SVA is not responsible and that delay or otherwise impede delivery of the third-party Products to and from SVA including, but not limited to, import/export restrictions, mobilization, war, terrorism, terrorism warnings, embargos, strikes, lockout, manufacturers’ complete or partial cease of production/delivery restrictions, free SVA from its duty to provide delivery for the duration of such impediment. If such events make it impossible for SVA to deliver the merchandise, SVA is entitled to withdraw its acceptance of Your Order if it has not yet been fulfilled, and after such withdrawal SVA will have no obligation to You for damages or otherwise.
7. In all other cases of SVA not meeting its delivery deadlines, the Customer is entitled to withdraw their SVA-accepted Order for the undelivered third-party Products of their Order, if they have given SVA at least thirty (30) days prior written notice (“Grace Period”) and in the absence of such third-party Products being delivered to Customer within such Grace Period. SVA can also withdraw from their SVA-accepted Order if the manufacturer ceases production of such third-party Products after the Order has been accepted.

§4 Term and Termination

1. Products comprising services or software shall begin on the Effective Date and shall continue in effect for the Term specified in the Order Confirmation or in a separate written agreement between You and SVA, unless terminated in accordance with this Section A(§4). Provided, however, that in no event will the Effective Date be later than the date of delivery of the Products to You.  As used herein, “Term” shall mean the initial term and/or any renewal term then in effect. 
2. Prior to or upon expiry of the Term, i.e., the initial term, the parties may agree to enter into a renewal term.  As used herein, “Term” shall mean the initial term or renewal term then in effect.  Otherwise, these GTC shall expire at the end of the Term, and thereafter the Customer shall have no right to continue use the Product(s). Notwithstanding the foregoing, for Order Confirmations of rental Product(s) unless an initial term or renewal term has been agreed upon separately in writing, these GTC may be terminated at the end of the respective contract year by Customer providing at least three (3) months advanced written notice to SVA.  Otherwise, if there is no such advance written notice is provided to SVA, these GTC will be extended by such renewal term and Customer will be invoiced accordingly.
3. The SVA-accepted Order of a Customer and these GTC may be terminated:
   • (a)  by SVA if the Customer fails to pay any sum due hereunder within thirty (30) days of their due date;
   • (b)  subject to Section A(§4)(3)(a) herein, by SVA or Customer if the other commits any material breach of any term of these GTC and which (in the case of a breach capable of being remedied) has not been remedied within thirty (30) days of a written request to remedy the same; or
   • (c)  by SVA or Customer if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement of insolvency, receivership, or bankruptcy proceedings or any other proceedings for the settlement of such party’s debts; upon such party making an assignment for the benefit of creditors; or upon such party’s dissolution.
4. A written request to remedy a breach or to provide notice of termination must be delivered in writing in accordance with these GTC to be effective. An e-mail message does not meet this written form requirement.
5. Temination of these GTC for any reason shall be without prejudice to any other rights or remedies to which SVA and the Customer may be entitled hereunder or at law and shall not affect any accrued rights or liabilities of either of them.
6. On termination of these GTC for any reason:
   • (a) all rights and licenses granted to Customer herein shall terminate;
   • (b) the Customer shall cease all use of the Product(s);
   • (c) the Customer shall return to SVA or delete all copies of the Products, including any and all associated documentation and backup copies, in Customer’s possession or under its control;
   • (d) Licensee Customer certify in writing to SVA its compliance with the foregoing; and
   • (e) Sections A(§3), A(§4)(6), and A(§9) through A(§12) as well as any unpaid fees obligations by the Customer prior to termination of these GTC shall survive termination.

§5 Fees

1. All prices are net prices and do not include packaging, freight, insurance, shipping, or other expenses.
2. The amounts payable by Licensee pursuant to an Order Confirmation and/or invoice from SVA are due to SVA without deduction within thirty (30) days after receipt of the Order Confirmation and/or invoice, net plus any expenses and applicable tax. Any transfer costs, discount charges as well as all other collection costs shall be borne by Customer.
3. All late payments shall be subject to a late fee corresponding to twelve percent (12%) per annum of the outstanding balance as of the time of the late payment with a minimum late fee charge of one percent (1%) of the outstanding balance owed as of the time of the late payment.  Nevertheless, once the time limit for payment above expires, the Customer is in default and SVA reserves the right to assert in addition to the late fee further damages caused by default.
4. Ongoing monthly payments are due and payable in advance no later than the 3^rd business day of the calendar month following the month in which the service was provided without separate invoice. For partial months, payment is owed pro-rata.
5. Other ongoing fees are due in full upon invoice in advance for the respective invoice period.
6. If Customer’s financial circumstances deteriorate significantly, SVA reserves the right in its sole discretion to make approved deliveries dependent on advance payments or collateral.

§6 Product warranty and duty to give notification of defects

1. Customer shall immediately, and no later than seven (7) days after delivery, inform SVA in writing of incomplete or incorrect deliveries, and any defects in delivered Products (“Defects”), providing all information available to the Customer that may be relevant to the remedy of the defects.
2. In remedying Defects, SVA is entitled to choose between a repair or a replacement Product.
3. SVA’s warranty on the Product(s) lapses in all cases in which the Defects are caused by improper use by the Customer, by interference by the Customer (e.g. changes to implementation), by services they are required to provide (in particular data and content), or by their system environment for which SVA is not responsible, unless the Customer can demonstrate that these circumstances are not the cause of the defect.
4. The Customer does not receive any warranties from SVA regarding any third-party Products. SVA passes to the Customer any manufacturer warranties for the third-party Products. For any and all such warranty claims, the Customer shall, when Defects arise that are covered by the manufacturer warranty, contact the manufacturer directly and observe the manufacturer’s guarantee conditions. Should a claim be asserted against the manufacturer, the Customer shall also inform SVA and report on the manufacturer’s handling of such claim.

§7 General Warranties

1. Both parties warrant that they have the authority to enter into these GTC and that doing so shall not put such party in breach of any agreement to which it is a party or otherwise bound.  Both parties further warrant that they will comply with any applicable data privacy laws and regulations.
2. Customer hereby represents that it shall (i) comply with all applicable local and foreign laws and regulations which may govern the use of the Product(s), and (ii) use the Product(s) only for lawful purposes and in accordance with the terms of these GTC.  No warranty is provided by SVA to Customer to the extent that the Customer undertakes unauthorized changes or modifications to the Product(s).
3. DISCLAIMER OF WARRANTIES
   • SVA MAKES NO WARRANTY, REPRESENTATION, OR PROMISE NOT EXPRESSLY SET FORTH IN THESE GTC. SVA DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SVA DOES NOT WARRANT THAT THE PRODUCTS WILL SATISFY LICENSEE’S REQUIREMENTS OR THAT THE SOFTWARE AND/OR PRODUCTS ARE WITHOUT DEFECT OR ERROR OR THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED.  SVA DOES NOT WARRANT THAT THE PRODUCTS SHALL BE FREE OF ANY RIGHTFUL CLAIM OF INFRINGEMENT OF PATENTS, COPYRIGHTS OR TRADEMARKS.

§8 Limitation of Liability

1. SUBJECT TO SECTIONS A(§8)(2) to A(§8)(5), SVA’S OBLIGATION AND LIABILITY IS EXPRESSLY LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE RELEVANT FEE PAID SVA FOR THE PRIOR TWELVE (12) MONTH PERIOD IS WHICH A CLAIM AROSE FOR USE OF THE PRODUCTS. SVA SHALL NOT IN ANY CASE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF SVA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SVA IS NOT RESPONSIBLE FOR LOST PROFITS OR REVENUE, LOSS OF USE OF THE PRODUCT, LOSS OF DATA, COSTS OF RECREATING LOST DATA, THE COST OF ANY SUBSTITUTE EQUIPMENT OR PROGRAM, OR CLAIMS BY ANY THIRD PARTY OTHER THAN CUSTOMER.
2. In no circumstances shall SVA be liable for any loss or damage resulting from:
   • (a) a failure by the Customer to comply with minimum requirements of the technical specification (which may include software, hardware and/or other facilities) required to enable the Product to function in accordance with associated Documentation and/or these GTC (“Minimum Requirements”);
   • (b) any error, inaccuracy or inadequacy of the data provided by the Customer with which the Product is used; or
   • (c) any use of the Product other than in accordance with these GTC.
3. Additionally, Customer acknowledges that, whilst certain Products may be used in combination with third party software, SVA bears no liability, howsoever arising, for any loss, damage or cost that arises from a failure of such certain Products Software to integrate with Customer’s or third party software.
4. For the avoidance of doubt, nothing in these GTC shall be deemed to exclude, restrict or limit liability of either party (or their respective agents or sub-contractors) for death or personal injury resulting from their negligence or any liability for fraudulent misrepresentation.
5. In the event that SVA fails to comply with its obligations pursuant to these GTC, SVA shall be afforded a reasonable opportunity to correct such failure.

§9 SVA Intellectual Property

1. SVA or one of its affiliates has sole and exclusive ownership of all right, title, and interest in and to the SVA Products, including all copyright and any other intellectual property rights therein.
2. The Products consisting of software are licensed, not sold to Customer. SVA reserves all rights not expressly granted to Customer. Title to and ownership of (including all intellectual property rights in and to) such Products shall remain exclusively with SVA or one of its affiliates and/or its licensors.
3. SVA or one of its affiliates has sole and exclusive ownership of all right, title, and interest in and to any work results including copyrights, patents, utility models or design samples, created by SVA in connection with providing any of its Products to Customer in accordance with these GTC.  Any right to use such works by Customer may be granted by SVA pursuant to a separate written agreement.  Absent such separate written agreement, Customer has no right to use such works.
4. For Products for which Customer has paid a fee, and excluding free or demonstration Products provided to the Customer, SVA at its expense and in its sole discretion, shall defend any claim, demand, action or proceeding by a third party against the Customer asserting that the Product infringes any copyright or trade secret right of any third party (each an “Infringement Claim”) and shall pay any final judgments awarded or settlements entered into with such third party provided that the Customer gives prompt written notice to SVA of any such Infringement Claim (but in any event provided notice in sufficient time for SVA to respond without prejudice), and grants SVA the full authority to proceed as contemplated herein. SVA will have the exclusive right to defend at its expense any such Infringement Claim, and make settlements thereof at its own discretion, and the Customer may not settle or compromise such Infringement Claim, except with the prior written consent of SVA. The Customer shall give such assistance and information as SVA may reasonably require in connection with the investigation, defense or settlement of such Infringement Claims. In the event any such Infringement Claim is brought or threatened, SVA may at its sole discretion and expense.
   • (a) modify or amend the Product or the allegedly infringing part thereof, or replace the Product so that the Product or part thereof as so modified, amended or replaced has substantially the same or better capabilities as the original Product or part thereof, or
   • (b) obtain the rights to continued use of the Product or the allegedly infringing part thereof.
   • If neither of the foregoing solutions is commercially practicable, SVA may terminate these GTC with respect to the allegedly infringing part of the Product and refund the prorated License Fee paid by Customer for such part less (1/12th) of the applicable annual license fees for each month or portion thereof that these GTC has been in effect.  SVA will then be released from any further obligation whatsoever to the Customer in connection with the alleged infringing part of the Product.
5. The foregoing obligations shall not apply to the extent the alleged infringement arises as a result of or is based upon:
   • (a) modifications to the Software not performed by SVA; or
   • (b) use or combination of the Software with other programs or data.
6. Sections A(§9)(4) and A(§9)(5) herein state the entire liability of SVA to the Customer with respect to the infringement of any third party intellectual property rights.

§10 Data protection

Customer and SVA do not intend or anticipate that SVA will be provided access to any Personal information maintained or accessible by Licensee. However, in the event that Customer provides SVA, in any particular case, access (whether remote or on-site) to any Customer operating environment in which (a) the Products may be used, and (b) Personal Information may be accessible, SVA shall comply with Customer’s applicable information security procedures, remote or access policies that have been provided to SVA in writing.  Nevertheless, where any Personal Information is processed by SVA at the request and/or on behalf of Customer, SVA will act in accordance with Customer’s reasonable instructions by following such reasonable processing and security procedures as are notified to SVA in writing. Customer is solely responsible for ensuring that all processing and security procedures comply with applicable data protection law. Customer hereby agrees to defend, indemnify and hold SVA harmless in respect of any loss or damage suffered by SVA as a result of any failure by Licensee to comply with this Section A(§10). As used herein, “Personal Information” means all information about individuals, including, but not limited to, names, signatures, addresses, telephone numbers, account numbers, social security numbers, credit reports, demographic information, financial and other personal data, health information, transaction information, and lists of customers, employees, or investors, created, maintained or accessible by Customer.

§11 Confidentiality

1. Each party (the “Receiving Party”) shall keep confidential the provisions of these GTC and all information and documentation disclosed by the other party (the “Disclosing Party”), before or after the date of these GTC, to the Receiving Party or of which Receiving Party becomes aware which in each case relates to any software, operations, products, processes, dealings, trade secrets or the business of the Disclosing Party (including without limitation all associated software, specifications, designs and graphics) or which is identified by the Disclosing Party as confidential (the “Confidential Information”) and will not use any Confidential Information for any purpose other than the performance of its obligations under these GTC.  “Confidential Information” expressly includes the Software and Documentation. The Receiving Party shall not disclose Confidential Information to any third party without the prior written consent of the Disclosing Party.  This Section A(§11) shall survive termination of these GTC for whatever cause.
2. During the term of these GTC, the Receiving Party may disclose the Confidential Information to its employees and sub-contractors (any such person being referred to in this Section A(§11) as the “Recipient”) to the extent that it is reasonably necessary for the purposes of these GTC.  The Receiving Party shall procure that each Recipient is made aware of and complies with all the Receiving Party’s obligations of confidentiality under these GTC as if the Recipient was a party to these GTC.
3. The obligations contained in Sections A(§11)(1) and A(§11)(2) shall not apply to any Confidential Information which is:
   • (a) at the date of these GTC already in, or at any time after the date of these GTC comes into, the public domain other than through breach of these GTC by the Receiving Party or any Recipient; or
   • (b) furnished to the Receiving Party or any Recipient without restriction by a third party having a legal right to do so; or
   • (c) required to be disclosed by the Receiving Party by law or regulatory requirements of a government agency, provided that the Receiving Party shall give the Disclosing Party as much notice as reasonably practicable of the requirement for such disclosure.
4. All tangible forms of Confidential Information, including, without limitation, all summaries, copies, excerpts of any Confidential Information whether prepared by the Disclosing Party or not, shall be the sole property of the Disclosing Party, and shall be immediately delivered by the Receiving Party to the Disclosing Party upon the Disclosing Party’s request or the termination of these GTC (whichever is earlier). The Receiving Party shall not copy, reproduce, publish or distribute in whole or in part any Confidential Information without the prior written consent of the Disclosing Party.

§12 Miscellaneous

1. Neither SVA nor Customer shall be liable for any breach of these GTC resulting from causes beyond their respective reasonable control including but not limited to fires, strikes (of its own or other employees), insurrection or riots, delays in transportation, inability to obtain supplies or raw materials, requirements or regulations of any civil or military authority (any one of the above an “Event of Force Majeure”). SVA and Customer hereby agree to give notice forthwith to the other upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure. If a default due to an Event of Force Majeure continues for more than thirteen (13) weeks, then the party not in default shall be entitled to terminate these GTC. Neither SVA nor Customer shall have any liability to the other in respect of such termination as a result of an Event of Force Majeure.
2. Customer shall not assign these GTC, in whole or in part, without the prior written consent of SVA.  Any attempted assignment by Customer without SVA’s prior written consent shall be null and void.
3. SVA is entitled to engage any person, company or firm as its agent or sub-contractor to perform all or any of its obligations or duties under these GTC, but SVA shall remain liable towards Customer for acts or omissions by such sub-contractors.
4. Customer hereby agrees that, because of the unique nature of the software-based Products and SVA’s proprietary rights therein, a demonstrated breach of these GTC by Customer would irreparably harm SVA, and monetary damages would be inadequate compensation. Therefore Customer agrees that SVA shall be entitled to preliminary and permanent injunctive relief, as determined by any court of competent jurisdiction to enforce the provisions of these GTC.
5. If any provision of these GTC or any schedule or exhibit thereof is declared void, illegal, or unenforceable, the remainder of these GTC will be valid and enforceable to the extent permitted by applicable law.  In such event, the parties agree to use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by the applicable law, achieves the purposes intended under the invalid or unenforceable provision.
6. Any failure by any party to these GTC to enforce at any time any term or condition under these GTC will not be considered a waiver of that party’s right thereafter to enforce each and every term and condition of these GTC.
7. These GTC (i) constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements, oral and written, made with respect to the subject matter hereof, and (ii) cannot be altered except by agreement in writing executed by an authorized representative of each party.  No purchase order and/or standard terms of purchase provided by Licensee shall supersede these GTC.
8. Any notice, request, instruction or other document to be given hereunder shall be delivered or sent by overnight courier (such as FedEx or UPS) or by email to the address of the other set out in the Order Confirmation (or such other address as may have been notified) and any such notice or other document shall be deemed to have been served and deemed to have been received (if delivered) at the time of delivery if sent by overnight courier, and if transmitted by email, upon the expiration of twelve (12) hours after such transmission.
9. These GTC shall be governed by and construed in accordance the laws of the State of Delaware without regard to its conflict of law rules.  The jurisdiction and venue in any action brought by any party pursuant to these GTC shall properly and exclusively lie in any federal or state court located in the State of Delaware.  EACH OF THE PARTIES TO THESE GTC WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY DISPUTE OF ANY NATURE WHATSOEVER THAT MAY ARISE BETWEEN THEM, INCLUDING, BUT NOT LIMITED TO, THOSE DISPUTES RELATING TO, OR INVOLVING IN ANY WAY, THE TRANSACTIONS BETWEEN THE PARTIES, THE CONSTRUCTION, PERFORMANCE OR BREACH OF THESE GTC OR ANY OTHER AGREEMENT BETWEEN THE PARTIES, THE PROVISIONS OF ANY FEDERAL, STATE OR LOCAL LAW, REGULATION OR ORDINANCE NOTWITHSTANDING. Each of the parties hereto acknowledges and agrees that it has had an opportunity to consult with legal counsel and that he/she/it knowingly and voluntarily waives any right to a trial by jury of any dispute pertaining to or relating in any way to the transactions contemplated by these GTC, the provisions of any federal, state or local law, regulation or ordinance notwithstanding.
10. Alternative Dispute Resolution.
    • (a) The following procedures will be followed in all disputes arising under these GTC, which the parties cannot resolve informally at the operational level.  The aggrieved party shall notify the other party in writing of the nature of the dispute with as much detail as possible. The individuals managing the relationship hereunder (“Account Executives”) for the respective parties shall meet (in person or by telephone) within ten (10) business days after the date of the written notification to reach an agreement on the nature of the dispute and the corrective action to be taken by the respective parties.  The Account Executives shall produce a report about the nature of the dispute in detail to their respective management.  If the Account Executive are unable to agree on corrective action, senior managers of the parties having authority to resolve the dispute without the further consent of any other person (“Management”) shall meet or otherwise act to facilitate an agreement within thirty (30) days after the date of the written report from the Account Executives.  If Management cannot resolve the dispute or agree upon a written plan of corrective action to do so within seven days after their initial meeting, or if the agreed-upon completion dates in the written plan of corrective action are exceeded, either party may exercise their individual rights under law or in equity.  Except as otherwise specifically provided, neither party shall initiate litigation unless and until this dispute resolution procedure has been employed or waived. Each party agrees that during any period a dispute is being resolved as set forth under these GTC, it will continue to meet its obligations under the terms and conditions of these GTC (except to the extent a required payment is not made for services – such services need not be provided).
    • (b) Nothing in these GTC shall preclude either party from specific performance or other equitable relief, including but not limited to temporary restraining orders and preliminary injunctions, from any court of competent jurisdiction, in order to protect its rights or prevent harm pending the obtaining of a court ruling, nor shall anything herein prevent SVA from seeking monetary damages from any court of competent jurisdiction for monies owed to it hereunder.  Without limiting the foregoing provisions of this Section, Customer acknowledges that remedies at law for a breach or threatened breach of any of the covenants contained in Sections A(§9) through A(§12) will be inadequate and in the event of a breach or threatened breach of any such covenants, SVA shall be entitled to an injunction specifically enforcing Customer’s compliance with such.
    • (c) Any and all time periods set forth above may be extended by mutual consent of the parties. The content of any and all discussions, negotiations, agreements, and/or disclosures made during this dispute resolution process set forth in this Section A(§12)(10) shall be Confidential Information and as such shall not be released to the public, nor shall it be admissible in any court proceeding that a party or the parties may initiate pursuant to this Section A(§12)(10).
11. Customer agrees to comply with all United States, European Union and foreign export control laws or regulations applicable to the Product and services provided pursuant to these GTC.  Customer shall promptly notify SVA of any export restrictions that may apply to Customer’s site(s).  The Product and services provides technology that may be subject to United States export controls administered by the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control and other United States agencies, and the export control regulations of the European Union, including without limitation the United States Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000.  Customer acknowledges and agrees that the Product shall not be used by, and none of the underlying information, software or technology may be transferred or otherwise exported or re-exported to, Afghanistan, Burma, Cuba, Iraq, Iran, Libya, Sudan or any countries to which the United States and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or a national or resident thereof, or any person or entity on the United States Department of Treasury’s List of Specially Designated Nationals or the United States Department of Commerce’s Table of Denial Orders (collectively, “Designated  Nationals”).  The lists of Embargoed Countries and Designated Nationals are subject to change without notice.  By using the Product, Customer represents and warrants that Customer is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National.  Customer agrees to comply strictly with all United States and European Union export laws and assumes sole responsibility for obtaining licenses to export or re-export as may be required.

B. Special conditions for the sale of third-party hardware and software products

The Customer may place an Order with SVA for the delivery of Products consisting of third-party hardware and/or software – described in detail in the applicable Order Confirmation, written quote and/or proposal provided to Customer by SVA or its Authorized Reseller. In addition to new parts, hardware may also contain certified refurbished parts, unless the quality was explicitly agreed to be “brand new”. In some cases, a part that was not new may have already been installed. This does not affect the product warranty to the Customer as set forth in Section A(§6) herein. Installation, care, maintenance, or other services are not part of any SVA agreement for third-party hardware and/or software and such services shall only be provided and paid for under a separately executed agreement between the Customer and SVA.

§1 Third-Party Hardware

The delivery location and service components of Products consisting of third-party hardware shall be specified in the Order Confirmation, written quote and/or proposal provided to Customer by SVA or its Authorized Reseller.

§2 Third-Party Software

1. Products consisting of third-party software shall also be specified in the Order Confirmation, written quote and/or proposal provided to Customer by SVA or its Authorized Reseller.  Such third-party software may be transmitted by download from the internet, by data carrier, or by electronic mail to the customer. If the party software includes documentation, such documentation may either be in printed or electronic form.
2. Products consisting of third-party software shall be available to Customer only as licensed software subject to the applicable third party’s end user license agreement.  Such third-party software shall be provided to Customer in object code form.  Source code of the third-party software shall be provided in those rare instances in which the Order Confirmation explicitly provides for the delivery to Customer of the third-party software in source code form. Upon request, Customer shall be obligated to confirm receipt in writing of the delivered third-party software and/or associated documentation.

§3 Price

If the list price of a Product consisting of third-party hardware or software on the day of shipping is lower than the purchase price listed on the Order Confirmation, the Customer shall receive the benefit of this price difference.

§4 Specifications

The description of the third-party hardware or software in the user documentation exclusively defines the specifications of such items. SVA shall not obligated to provide any functionalities or rights to the Customer beyond those described in the third-party hardware or software user documentation. No additional aspects or functionality of the third-party software can be derived from statements and/or advertising made by SVA, its employees, contractors or Authorized Resellers. If declarations or statements regarding the specifications of hardware or software are to be made the object of an order, we point out that, in particular, consultants, developers, and other field service employees are not authorized to make such claims, and any consideration of such additional specifications, therefore, requires explicit written confirmation by authorized representatives of SVA.

§5 Delivery dates/installation/transfer of risk

The following are additional delivery and installation terms and conditions are in addition to the the terms and conditions set forth in Section A(§3) herein:

1. Delivery deadlines/times are only binding if confirmed in writing by SVA. The agreed term will begin when the Customer has performed their duties of cooperation.
2. SVA bears the risk of accidental destruction or deterioration of the hardware until SVA hands over third party hardware to the shipping company hired by SVA or the manufacturer for delivery to, or the location specified by, the Customer, unless SVA has accepted the responsibility for the installation or assembly of such hardware.  Thereafter, the risk is transferred to the Customer. To secure any potential claims made by the customer, SVA hereby cedes all claims against the shipping company to the Customer.
3. The Customer hereby warrants that they sufficient authority and are entitled to install any additional devices/model and type changes in appropriate machines, even if they are not the owner of same.

§6 Additional Product Warranty Provisions

The following are additional product warranties provided to Customer in addition to the product warranties provided in Section A(§6) herein:

1. In case of a replacement by SVA of Products consisting of third-party hardware, SVA acquires ownership of any hardware components that it removed/replaced. During production and for the remedy of defects/replacements, SVA may use spare parts or components that are new or like new according to the respective industry standards. The Customer has no claim to rental devices for the duration of the repairs.
2. The latest third party software version provided to Customer by or on behalf of SVA shall be covered by this Section B(§6).

§7 Retention of title to acquired goods

1. SVA retains title to all delivered Products consisting of third party hardware until such time as the Customer has satisfied all claims that existed under the applicable Order Confirmation or claims which arose subsequently in connection with the delivered Products. The Customer acquires usage rights to the software for the term that is specified in the applicable Order Confirmation or third party license documents regarding same.
2. The Customer is permitted by SVA to process hardware or to mix or combine it with other objects on behalf of SVA.
3. If reserved goods are combined, mixed, or processed with the Customer’s goods or with third-party reserved goods, SVA acquires the co-ownership of the new item or the mixed stock on the basis of the ratio between the value of the reserved goods and the value of the other goods on the date they were combined, mixed, or processed. SVA makes no claim to any resulting value increase.
4. The Customer undertakes to insure reserved goods and goods which SVA owns or co-owns sufficiently against loss and damage by fire, theft, water damage, or similar risks and upon request to provide evidence of such insurance to SVA. The Customer hereby transfers their compensation claims against insurance companies or other parties liable to pay compensation to SVA, if applicable pro rata, i.e., corresponding to its share in the jointly owned item. SVA hereby accepts the transfer.
5. The Customer shall inform SVA immediately of any enforcement measures by third parties against the reserved goods and submit the documentation necessary for an intervention; this also applies to other types of encumbrance. The above notwithstanding, the Customer shall inform third parties of SVA’s rights to the goods in advance. The Customer shall bear any intervention costs incurred by SVA, if the third party is unable to reimburse them.
6. If the Customer seriously and finally refuses performance, and convenes a meeting of its creditors or if a proposal shall be made for a voluntary arrangement of insolvency, receivership, or bankruptcy proceedings or any other proceedings for the settlement of such party’s debts; upon such party making an assignment for the benefit of creditors; or upon such party’s dissolution, the Customer may no longer dispose of the reserved goods. In such cases, SVA is entitled to demand the return of delivered goods to which they retains the title, after exercising their right to withdraw from the purchase agreement regarding same.
7. Furthermore, SVA may demand the reimbursement of all costs associated with the withdrawal (e.g. return shipment, value decrease etc.).

§8 Utilization and license rights

The end user license agreements of the respective manufacturers shall apply and control Customer’s use of the corresponding delivered third-party software under the associated agreement between Customer and SVA regarding such third-party software.

§9 Obligations of the customer

1. The Customer has informed themselves about the essential functional features of the acquired third-party hardware and/or software under the associated agreement between Customer and Customer and assumes the risk as to whether such hardware and/or software will meet their requirements and needs.
2. Unless otherwise agreed, SVA will install and configure the Products consisting of third party software. Before use, Customer shall thoroughly test such software for defects and usability in the existing hardware and software configurations.
3. Additional duties of the Customer, in particular duties to cooperate and/or facilitate may arise from individual offers.

C.   Special conditions for the license of SVA-owned or -controlled software products

SVA offers various software products in their capacity as a manufacturer. This includes documentation, administration, information, and communication system software, as well as monitoring, performance analysis, and reporting solutions.

§1 The following conditions represent the specific terms and conditions in connection with your right to access and/or use SVA-owned or –controlled software products (excluding SVA’s BVQ software products covered by Article H herein).  Specific terms and conditions in this Article C are in addition to the general terms and conditions in Article A herein, except as where may be explicitly indicated. 

1. Depending on the individual provisions in an Order Confirmation, or, absent an Order Confirmation, in a written quote and/or proposal provided to You by SVA or an Authorized Reseller, Products consisting of SVA-owned or -controlled software (“SVA Software”) may be transmitted by download from the internet, by data carrier, or by electronic mail to the Customer. The transfer of the software includes (if included in the offer) the associated database, documentation, either printed or in electronic form (jointly “License Documentation”). The description in the applicable user documentation exclusively defines the specifications of such SVA Software. No additional aspects or functionality of such software can be derived from statements and/or advertising made by SVA, its employees, contractors or Authorized Resellers.
2. Any installation, care, maintenance, or other services may be offered to You in the written quote and/or proposal as part of a base price or optional as a separate line item.  Such services that are not specified in the written quote and/or proposal and/or not accepted by You are not part of any SVA agreement for such services, and  shall only be provided and paid for under a separately executed agreement between the Customer and SVA.
3. The SVA Software and associated License Documentation are provided in object code form together with corresponding user documentation. Source code of the third-party software shall be provided in those rare instances in which the Order Confirmation explicitly provides for the delivery to Customer of SVA Software in source code form. Upon request, Customer shall be obligated to confirm receipt in writing of the delivered SVA Software and/or associated documentation.

§2 Additional Product Warranty Provisions

1. The latest SVA Software version acquired by the Customer shall be covered by the product warranty provided in Sections A(§6) and C(§2).  No other warranty or guarantee is provided from SVA.
2. If the Customer reports a purported Defect in the delivered SVA Software, and an inspection by SVA reveals that there are no defects, then SVA is entitled to demand reimbursement for expenses at the hourly rates valid on the day the defect was reported (plus any necessary travel costs, travel time, costs for data carriers, copy costs, and other expenses).

§3 License and right to use

1. The order and delivery process set forth in Sections A(§2) and A(§3) herein shall govern the ordering and delivery of any SVA Software provided to the Customer by SVA or an Authorized Reseller.
2. As per Section A(§9) herein, SVA is the sole owner of all copyrights, trademark rights, patent rights, and all other ancillary copyrights and industrial property rights in and to the SVA Software and all associated documents including, for example, user documentation.
3. Insofar as SVA accepts your Offer and makes a version of the SVA Software available to You as a licensee (“Licensee”), and subject to (i) full payment of the SVA-specified license fee (“License Fee”) and (ii) all the terms and conditions of These GTC, SVA grants to Licensee, a non-exclusive, non-transferable license to install and use the SVA Software in object code form, and the accompanying documentation (“Documentation”) solely and exclusively for Licensee’s internal business purposes in the Territory specified in the Order Confirmation or, absent an Order Confirmation, in the written quote and/or proposal. The license grant under this Section C(§3) is subject to all terms and conditions of these GTC, the Documentation, and as otherwise agreed to by SVA in writing.
4. All rights not specifically granted herein to Licensee with respect to the SVA Software are reserved by SVA.
5. It is Licensee’s responsibility to install and configure the SVA Software upon receipt, unless otherwise agreed to with SVA.  SVA recommends that Licensee thoroughly test the SVA Software prior to its use to identify any usability issues resulting from its hardware or the software configuration.
6. Licensee is entitled to make a commercially-reasonable number of backup copies of the SVA Software and necessary data backups. Any and all backup copies of the SVA Software must be kept in a location that is protected against unauthorized access by third parties. There is no further right to reproduce or copy the SVA Software.
7. RESTRICTIONS.  Except as expressly permitted in these GTC, Licensee shall not, and shall not permit others to:
   • (a) modify, translate, create derivative copies of or copy the SVA Software (other than one backup copy which reproduces all proprietary notices), in whole or in part;
   • (b) reverse engineer, decompile, disassemble or otherwise reduce the object code of the SVA Software to source code form;
   • (c) distribute, sub-license, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes, or otherwise transfer the SVA Software or Licensee’s right to use the SVA Software;
   • (d) remove or modify any copyright, trademark, or other proprietary notices of SVA affixed to the media containing the SVA Software or contained within the SVA Software;
   • (e) use the SVA Software on anything other than a single, non-network server, computer for use by a single person to the extent Licensee wishes to install and use the SVA Software on a network server computer to which more users have access, Licensee must acquire a special client access license for every client that requires access to the Software pursuant to a special SVA company or enterprise licenses agreement;
   • (f) use the SVA Software in any manner not expressly authorized by these GTC or the Documentation;
   • (g) make more than commercially-reasonable number of backup copies of the SVA Software for backup purposes;
   • (h) make more copies of the Documentation than the number of licenses granted to Licensee by SVA;
   • (i) export the SVA Software to a location in any country outside of the Territory specified in the Order Confirmation, without the prior written permission of SVA, and for the avoidance of doubt any breach of this sub-Section shall be deemed to be a material breach of these GTC not capable of remedy for the purpose of Section A(§12)(11).
8. Capacity Levels.
   • SVA’s granted right to use the SVA Software by Licensee is subject to the capacity levels specified in the Order Confirmation. If Licensee wishes to change the capacity levels, Licensee is required to obtain the appropriate corresponding license from SVA and pay for the desired capacity level in accordance with the then current SVA price list in effect or as otherwise agreed to with SVA.  Licensee hereby agrees to report to SVA changes in the capacity levels in its use of the SVA Software.

§4 Obligations of the customer Licensee

Licensee shall perform its obligations as set out herein and in any separate agreement for the provision of installation and/or support services by SVA, including, without limitation, to:

• (a) comply with the Minimum Requirements (as defined in Section A(§8)(2) herein) for operation of the SVA Software;
• (b) provide SVA with access to the Licensee’s premises, equipment, system and facilities and with all necessary cooperation, information and data and access to staff and timely decision making as reasonably required by SVA to perform its obligations under these GTC and any separate agreement for the provision of services by SVA;
• (c) Licensee agrees, subject to reasonable prior notice, to give SVA such access to Licensee’s systems and assistance as may be necessary to confirm that the Licensee is using the SVA Software in accordance with these GTC.  Furthermore, at any time during the applicable Term, SVA may modify the SVA Software to include one or more technical measures that are intended to (i) restrict, or (ii) notify SVA, of any unauthorized use of the SVA Software; and
• (d) ensure that its use of the SVA Software complies with the provisions of any applicable data privacy laws and regulations as per Section A(§10) herein. Licensee and SVA acknowledge that the SVA Software when operated in accordance with the Documentation and these GTC does not access, process or transfer any Personal Information.  Licensee and SVA do not intend or anticipate that SVA will be provided access to any Personal Information maintained or accessible by Licensee.  However, in the event that Licensee provides SVA, in any particular case, access (whether remote or on-site) to any Licensee operating environment in which (a) the Software may be used, and (b) Personal Information may be accessible, SVA shall comply with Licensee’s applicable information security procedures, remote or access policies that have been provided to SVA in writing.  Nevertheless, where any Personal Information is processed by SVA at the request and/or on behalf of Licensee, SVA will act in accordance with Licensee’s reasonable instructions by following such reasonable processing and security procedures as are notified to SVA in writing. Licensee is solely responsible for ensuring that all processing and security procedures comply with applicable data protection law. Licensee shall defend, indemnify and hold SVA harmless in respect of any loss or damage suffered by SVA as a result of any failure by Licensee to comply with this Section 6.4.  As used herein, “Personal Information” means all information about individuals, including, but not limited to, names, signatures, addresses, telephone numbers, account numbers, social security numbers, credit reports, demographic information, financial and other personal data, health information, transaction information, and lists of customers, employees, or investors, created, maintained or accessible by Licensee.
• (e) SVA shall not be liable for any delay or failure to provide the SVA Software which arises as a result of a failure by Licensee to comply with this Section C(§4).

§5 Violation of third‐party copyrights or trade secrets

Sections A(§9)(4) through A(§9)(6) sets forth Licensee’s sole right with regard to any third party Infringement Claims  concerning any provided SVA Software.

D. Special conditions for installation services

§1 Scope

The following terms and conditions supplement those terms and conditions set forth in Articles A, B and C and apply to all installation services and hardware and software start-ups that SVA provides.

§2 Fees

1. Unless otherwise agreed with the customer in an individual contract, installation services are compensated based on working hours and material use.
2. Unless otherwise agreed, SVA also has a claim to reimbursement of expenses (travel, overnight stays, and daily expenses) in addition to the hourly rate. In case of travel, SVA has the right to choose the means of transportation at their own dutiful discretion.
3. Beyond that, the terms and conditions in Section A(§6) herein apply.

§3 Obligations of the customer

1. The Customer shall create the conditions in their operational space necessary for the performance of the services, in particular they shall provide the required infrastructure, such as work places, tools, telecommunication connections etc. free of charge. Additional duties of cooperation are listed in the corresponding Order Confirmation, written quote and/or offer proposal. Customer hereby represents and warrants that for software provided by Them for installation and use in connection with any SVA installation services, the Customer has sufficient rights from the owner or licensor for the intended installation purposes.
2. Before the installation work begins, the Customer shall name a qualified person as contact person. The person named by the Customer shall take all necessary measures for the protection of persons and property at the installation site, and shall perform a safety orientation for general and any existing specific safety regulations if they are relevant to the SVA’s personnel.
3. The Customer is obligated to provide technical help at their own expense, in particular
   • to provide the necessary suitable auxiliary staff in a sufficient number and for sufficiently long to perform the necessary work. SVA does not accept any liability for the auxiliary staff.
   • to provide the necessary infrastructure and connections as well as materials and perform all actions necessary for the installation, start-up, and (if included in the contract) testing.
4. The Customer’s technical support must ensure that the installation can commence immediately upon the arrival of our personnel and without delay.
5. If the Customer does not fulfil their duties, SVA is entitled (but not obligated) after setting a suitable grace period to perform the actions required by the Customer in their stead and at their expense.

§4 Handover

1. In the case of a handover the Customer shall, after the provision of the service or report of completion, verify the contractual state of the service result and immediately, but no later than four (4) weeks after the handover (“Handover Term”) declare its acceptance or report Defects with specific Error descriptions as is otherwise specified in Section A(§6) herein. Non-essential defects will not prevent the handover. After the expiration of this Handover Term with Customer not reporting any Defects in such Handover Term, the provision of the service is deemed accepted and approved.
2. If the assignment is segmented into partial tasks, then each partial task shall be handed over individually on completion. Unless otherwise agree in writing, the entire project is considered handed over once the last part has been handed over.

E.    Special conditions for services

§1 Object

1. Details of a project of services to be provided by SVA to the Customer (“Project”), such as assignment, procedure, and type and extent of the services shall be set forth in SVA’s written offer or quote, unless otherwise addressed in a separate written agreement and shall be subject to these GTC, Article A and E.
2. SVA and Customer may agree on a schedule for the provision of the services and a planned deadline for the completion of the services for the Project.

§2 Services, work place

1. The Customer is responsible for managing the implementation of its Project.
2. The services set forth for the Project shall be provided at a SVA location, unless expressly agreed in writing that such services will be provided at Customer’s location.
3. Under a Project, the SVA employees providing such services will not enter into an employment relationship with the Customer. SVA is entitled at any time and at its own discretion to replace one employee with another suitable employee. SVA can use subcontractors of its choosing to perform entire or partial services. The selection of the subcontractor is at the discretion of SVA.
4. The Customer is responsible for identifying a Customer contact person and one deputy contact person. The contact person/their deputy is authorized and responsible for conveying the technical requirements and coordinating the manner and time frame in which the services of the contractor are used for the entire duration of the project.

§3 Obligations of the Customer

The Customer shall create the conditions in their operational space necessary for the performance of the services, in particular they shall provide the required infrastructure, such as work places, tools, telecommunication connections etc. free of charge. Additional duties of cooperation are listed in SVA’s corresponding written offer or quote.

§4 Fees

1. Unless otherwise agreed per contract, fees for SVA’s services are charged based on the time spent on the activities including travel times (hourly fee) according to the prices in SVA’s respective offer.
2. The contractor keeps a monthly record of the work performed and submits the record to the Customer within the first ten (10) days of the following month, together with the respective invoice.
3. Unless otherwise agreed, SVA also has a claim to reimbursement of expenses (travel, overnight stays, and daily expenses) in addition to the hourly rate. In case of travel, SVA has the right to choose the means of transportation at their own dutiful discretion.
4. SVA shall inform the Customer, in writing, of changes to the hourly rates no later than four (4) weeks before the time they are set to become effective. If this notice period is not adhered to, then the new hourly rates only apply to those services that SVA provide after the expiration of such four weeks since the announcement of the new hourly rates. If the new hourly rates are more than ten percent (10%) greater than the previously agreed hourly rates, the Customer may terminate the contract with a notice period of two (2) weeks after receipt of the corresponding notification from SVA with a further notice period of two weeks.

§5 Usage rights

Unless otherwise agreed, SVA grants to Customer an irrevocable, worldwide and transferable license and right to use any software and/or documentation created by SVA pursuant to the services of the Project.

§6 Third‐party rights

1. Customer represents and warrants that it such sufficient rights to third-party materials that is provided to, or provided access to, SVA or its subcontractors which are necessary for the provision of services by SVA under a Project.
2. The Customer hereby agrees to defend, indemnify and hold SVA and its subcontractors harmless against any liability for third-party claims, if they are based on the materials the Customer provided to SVA in connection with a Project or SVA-provided services under such Project.

§7 Resellers

If such an Authorized Reseller arranges for services to Customer pursuant to these GTC, then only these GTC shall govern the provision of such SVA-provided services. SVA is not responsible or liable for any promises or statements made by a reseller that deviates from the terms and conditions of these GTC without written agreement signed by SVA.

F.      Special conditions for training

§1 Object

1. SVA offers its Customers training programs for its employees, which may include general courses as part of training programs, and/or customized courses for Customers.
2. Customized courses are provided in close cooperation with the customer according to their technical specifications.

§2 Services, role requirements, work place, benefit exclusion

1. A detailed course schedule is developed jointly after SVA’s training services have been commissioned.
2. Courses are held at SVA’s premises, unless otherwise agreed in writing to be held at a Customer’s premises.

§3 Client duties of cooperation

1. The Customer shall inform SVA of the names of the participants, in a timely manner, before the course begins, no later than one (1) week before the course is due to begin. Upon commissioning SVA, the Customer shall also declare whether and how many printed copies of the course documentation they require.
2. If the course takes place on the Customer’s premises, the Customer shall provide office/training rooms with adequate equipment and necessary access to the Customer’s communication and data processing systems or such course. One computer with sufficient memory and free hard drive space shall be provided for each workshop participant. The specific requirements shall be stated in the SVA offer and/or                quote or otherwise will be provided to Customer by SVA. The Customer shall fulfil all duties of cooperation for SVA free of charge.

§4 Fees

The amount of the course fees due and the extent of the training day, including breaks, are set forth in the respective written offer or quote.

§5 Cancellation

1. Customer’s cancellations of scheduled courses may only occur by notice in writing to the appropriate SVA representative. Such cancellation is free of charge with at least seven (7) calendar days written notice before the scheduled start of a course.
2. If the event is cancelled between one (1) and six (6) calendar days before the start of the course, then fifty percent (50%) of the course fee set forth in the respective written offer or quote are due and payable by Customer to SVA.
3. If the event is cancelled less than one day before the start of the course, the full course fee set forth in the respective written offer or quote shall be due and payable by Customer to SVA. However, it is possible to transfer free of charge such participation fee as a credit to a replacement course provided by SVA.

§6 Course changes

If the actual number of Customer’s participants in a scheduled course is lower than the respective stated minimum participation number for course, SVA reserves the exclusive right to change and/or cancel such course. The Customer shall be informed by SVA as early as possible. If a course is cancelled by SVA, no course fee will be charged to Customer for such course.

G. Special conditions for rental services

§1 Contractual object

Details of the as rental object, type and extent, and procedure are stated in SVA’s Order Confirmation, or absent an Order Confirmation, SVA’s or its Authorized Reseller’s written quote or proposal to Customer, unless otherwise addressed in a separate written rental agreement.

§2 Lessee rights

1. The Customer is entitled, to use the rental object provided by SVA only for the purposes, within the capacity limitations and other restrictions as is set forth in the separate written agreement, and the terms and conditions of these GTC.
2. The Customer shall not use or attempt to use the rental object for any purposes other than the ones listed in (1) or beyond the purposes, services and capacity limitations set forth in the separate written agreement. In the case of Customer’s breach of this Section G(§2) herein, SVA without prejudice to further rights shall be entitled to terminate the rental separate written agreement and these GTC’s and compensation for, but not limited to, lost income.
3. The Customer may grant their employee and contractors use of the rental object. Other persons may only use the rental object with the express written consent of SVA.

§3 Obligations of the Customer

1. The Customer shall handle and use the rental object with reasonable care. Any changes, in particular additional installations, require written consent by SVA. The Customer shall follow the care and operating instructions and hereby agree to defend, indemnify and hold SVA harmless for any third‐party claims that arise due to violation of this duty.
2. The Customer is solely responsible for insuring the rental object against the usual risks, including without limitation, fire, water, theft, and vandalism.
3. The Customer is further solely responsible for protecting the rental object from access by third parties, in particular enforcement measures, and inform SVA at any time about the location of the object, if requested.
4. Changes to the rental object’s location require the prior written consent of SVA.

§4 Liability of the Customer

1. The Customer is liable to SVA for any damage due to breach of Section G(§3) herein, even if the rental object is in possession of a third party.
2. The Customer is liable to SVA for compensation of any damage that SVA incurs due to unauthorized access or use of the rental object by the Customer or a third party to which the customer has intentionally or grossly negligently granted access or use.
3. The Customer shall timely pay all fees set forth in SVA’s written offer or quote, unless otherwise addressed in a separate written rental agreement.

§5 Contract termination

At the expiration of the separate written rental agreement, the Customer shall return the rental objects to SVA at Customer’s expense. For each commenced month by which the return by the customer is delayed, SVA can charge the corresponding pro‐rata monthly rental price as compensation for use.

§6 Subleases

Subleasing of the rental object to a third party is only possible after coordination and with prior written consent from SVA. In case of a sublease, the customer still owes the agreed usage fee and is liable for any costs and damages that SVA incurs in connection with the sublease. In order to ensure SVA’s rights in and to the rental object, the Customer hereby transfers any and all claims to SVA that Customer may have against sublessees, including the claim for the return of the rental object to SVA, who accepts this transfer.

H.   Special conditions for the license of SVA BVQ software products

This Article H concerns the license and maintenance by SVA of its “Business Volume Qualicision” (“BVQ”) software, which is a monitoring, performance analysis and reporting solution for IT infrastructure systems (currently: IBM Spectrum virtualize and the IBM Storwize & Flash systems family, NetApp ONTAP, VMware vSphere, IBM PowerVM, Kubernetes, Brocade SAN, Cisco SAN).

§1 The following conditions represent the specific terms and conditions in connection with your right to access and/or use SVA-owned and –controlled BVQ software products. Specific terms and conditions in this Article C are in addition to the general terms and conditions in Article A herein, except as where may be explicitly indicated otherwise. 

1. Depending on the individual provisions in an Order Confirmation, or, absent an Order Confirmation, in a written quote and/or proposal provided to You by SVA or an Authorized Reseller, BVQ software Products consisting of SVA-owned may be provided by download from the internet, by data carrier, or by electronic mail to the Customer. The provision of the BVQ software Products includes (if included in the Offer) the associated database, documentation, either printed or in electronic form (jointly “BVQ License Documentation”). The description in the applicable user documentation exclusively defines the specifications of such BVQ software. No additional aspects or functionality of such software can be derived from statements and/or advertising made by SVA, its employees, contractors or Authorized Resellers.
2. In addition to pay-based versions of perpetual license or rental license of the SVA BVQ software Products referred to as “BVQ Entry” and “BVQ Enterprise,” You have the option of using “BVQ Free” without charge. The SVA BVQ software Products include:
   • (a) “BVQ Free” is the entry-level edition with limited functionality and restrictions on resource capacities. BVQ Free is provided on a loan basis for a period of one (1) year free of charge. No support is provided for BVQ Free.
   • (b) “BVQ Entry,” in contrast to BVQ Free, is a full version with basic functions. BVQ Entry is provided by way of either a perpetual license or on a software rental basis. BVQ Entry can initially be loaned to You in a six-week test version (“BVQ Entry Demo”). After the six-week demonstration phase, BVQ Entry Demo will cease to function.
   • (c) “BVQ Enterprise” is the version for demanding customers who want to use all BVQ functionalities. BVQ Enterprise is provided by way of either a perpetual license or on a software rental basis.
3. For the BVQ Entry and BVQ Enterprise software provided by way of the perpetual license, SVA offers for an additional fee the option of corresponding update services with maintenance and support service as set forth in Schedule A hereto. The maintenance and support services set forth in Schedule A hereto are included free of charge for the rental of BVQ Entry and BVQ Enterprise software.
4. As used herein, “BVQ Software” means the applicable version of BVQ Entry, BVQ Enterprise, and/or BVQ Free specified in the Order Confirmation described below, or is otherwise specified or applicable based on the context of the use of the term “Software” in the respective section of this Article H in which that term appears.

§2 Additional Product Warranty Provisions

1. The latest BVQ Software version acquired by the Customer shall be covered by the product warranty provided in Sections A(§6).  No other warranty is provided from SVA with respect to the BVQ Software.
2. If the Customer reports a purported Defect in the delivered BVQ Software, and an inspection by SVA reveals that there are no defects, then SVA is entitled to demand reimbursement for expenses at the hourly rates valid on the day the defect was reported (plus any necessary travel costs, travel time, costs for data carriers, copy costs, and other expenses).
3. Subject to Section H(§2)(3)(a) through H(§2)(3)(c), SVA represents and warrants that for twelve (12) months from the date of delivery the BVQ Software shall function under normal usage conditions in accordance with the specifications specified in the Documentation. SVA does not warrant that the operation of the BVQ Software by Licensee shall be uninterrupted and/or error-free.
   • (a) SVA’s warranty provided in Section H(§2)(3) applies only to the latest version of the BVQ Enterprise and BVQ Entry Software accepted by Licensee, and not for any accepted BVQ Entry Demo or BVQ Free Software.
   • (b) Licensee shall promptly notify SVA of any error, defect or malfunction (“Error”) giving rise to a warranty claim in writing, and provide sufficient detail for SVA to reproduce the Error.  SVA shall have no warranty obligation for any alleged error which it cannot verify or reproduce.
   • (c) SVA has no warranty obligation for Error(s) caused by (i) improper use or installation by Licensee, (ii) modifications to BVQ Software made by Licensee or a third party; (iii) combining the BVQ Software with third party software not specifically authorized by SVA in writing or specified in the Documentation; (iv) use of the BVQ Software for purposes other than as specified in the Documentation; (v) operation or functioning of Licensee’s existing system environment; or (vi) any alleged Error to the extent that it cannot be verified or reproduced by SVA.
4. Licensee shall be invoiced for an amount based on an hourly rate for all work performed by SVA in response to an incorrect reporting of, as determined by SVA, an Error by Licensee pursuant to Schedule A hereto, or improper warranty claim.

§3 License and right to use

1. As per Section A(§9) herein, SVA is the sole owner of all copyrights, trademark rights, patent rights, and all other ancillary copyrights and industrial property rights in and to the BVQ Software and all associated documents including, for example, user documentation.
2. Insofar as SVA accepts your Offer and makes a version of the BVQ Software available to You as a licensee (“Licensee”), and subject to (i) full payment of the SVA-specified license fee (“License Fee”) and (ii) all the terms and conditions of these GTC:
3. For Order Confirmations of a perpetual licensed or a rental license of BVQ Entry or BVQ Enterprise Software, SVA grants to Licensee, a non-exclusive, non-transferable license to install and use the Software in object code form, and the accompanying documentation (“Documentation”) solely and exclusively for Licensee’s internal business purposes in the Territory specified in the Order Confirmation, The license grant under this Section H(§3)(3) is subject to all terms and conditions of these GTC, the Documentation, and as otherwise agreed to by SVA in writing. The license grant in this Section H(§3)(3) by SVA to Licensee include updates of the Software during the rental period, if You have rented the BVQ Entry or BVQ Enterprise Software, or if the Order Confirmation specifies that update services are included with Your perpetual license to the BVQ Entry or BVQ Enterprise Software, of the Software and payment of the applicable fee by you, then such update services shall be provided by SVA to You pursuant to Schedule A hereto.
4. For Order Confirmations of a loaned BVQ Entry Demo, SVA grants to Licensee, a non-exclusive, non-transferable license in the Territory (specified in the Order Confirmation), to install and use, but only for testing for your business, a test version of the Software in object code form for a limited period of six (6) weeks after Licensee’s installation of the Software, with right to only access the Documentation via the BVQWIKI at https://bvqwiki.sva.de (If the Licensee does not order either of the BVQ Entry or BVQ Enterprise versions and receives a new corresponding license key within such licensed six-week period, the BVQ Entry Demo Software will cease to operate; i.e. the installed functions are no longer available and your right to use the BVQWIKI will expire; and
5. For loaned BVQ Free, SVA grants to Licensee, a non-exclusive, non-transferable license in the Territory, to download (from the appropriate SVA BVQ website), install and use for your business purposes no more than one (1) free version of the Software in object code form for a limited period of one (1) year after successful registration with SVA, and strictly limited to the capacity levels set forth in Section H(§3)(7) herein. Licensee shall have no right to access or copy the Documentation, but Licensee shall be granted access to SVA electronic user information (Wiki) via a SVA website freely available.
6. RESTRICTIONS.  Except as expressly permitted in these GTC, Licensee shall not, and shall not permit others to:
   • (a) modify, translate, create derivative copies of or copy the BVQ Software (other than one backup copy which reproduces all proprietary notices), in whole or in part;
   • (b) reverse engineer, decompile, disassemble or otherwise reduce the object code of the BVQ Software to source code form;
   • (c) distribute, sub-license, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes, or otherwise transfer the BVQ Software or Licensee’s right to use the BVQ Software;
   • (d) remove or modify any copyright, trademark, or other proprietary notices of SVA affixed to the media containing the BVQ Software or contained within the BVQ Software;
   • (e) use the BVQ Software on anything other than a single, non-network server, computer for use by a single person to the extent Licensee wishes to install and use the BVQ Software on a network server computer to which more users have access, Licensee must acquire a special client access license for every client that requires access to the BVQ Software pursuant to a special SVA company or enterprise licenses agreement;
   • (f) use the BVQ Software in any manner not expressly authorized by these GTC or the Documentation;
   • (g) make more than one (1) copy of the BVQ Software for backup or archival purposes (Licensee is authorized to make further additional copies only if it has acquired additional server or client licenses from SVA);
   • (h) make more copies of the Documentation than the number of licenses granted to Licensee by SVA;
   • (i) make multiple installations of BVQ Free (SVA shall have the right to immediately terminate Licensee’s right to use BVQ Free based on Licensee’s violation of this restriction); or
   • (j) export the BVQ Software to a location in any country outside of the Territory specified in the Order Confirmation, without the prior written permission of SVA, and for the avoidance of doubt any breach of this sub-Section shall be deemed to be a material breach of these GTC not capable of remedy for the purpose of Section A(§12)(11).
7. Capacity Level.
   • (a) SVA’s granted right to use the BVQ Software to Licensee is subject to the capacity levels specified in the Order Confirmation, or in the case of BVQ Free, the capacity levels specified in Section H(§3)(7)(b). If Licensee wishes to change the capacity levels, Licensee is required to obtain the appropriate corresponding license from SVA and pay for the desired capacity level in accordance with the then current SVA price list in effect or as otherwise agreed to with SVA.  Licensee hereby agrees to report to SVA changes in the capacity levels in its use of the BVQ Software.
   • (b) SVA’s granted right to use the BVQ Free software Product by Licensee is subject to the following maximum capacity levels of Layer Storage:  250TB, Layer Compute: 1TiB RAM and Layer Network: 100 ports.

§4 Obligations of the customer Licensee

Licensee shall perform its obligations as set out herein and in any separate agreement for the provision of installation and/or support services by SVA, including, without limitation, to:

1. comply with the Minimum Requirements (as defined in Section A(§8)(2) herein) for operation of the BVQ Software;
2. provide SVA with access to the Licensee’s premises, equipment, system and facilities and with all necessary cooperation, information and data and access to staff and timely decision making as reasonably required by SVA to perform its obligations under these GTC and any separate agreement for the provision of services by SVA;
3. Licensee agrees, subject to reasonable prior notice, to give SVA such access to Licensee’s systems and assistance as may be necessary to confirm that the Licensee is using the BVQ Software in accordance with these GTC.  Furthermore, at any time during the term of these GTC, SVA may modify the BVQ Software to include one or more technical measures that are intended to (i) restrict, or (ii) notify SVA, of any unauthorized use of the BVQ Software; and
4. ensure that its use of the BVQ Software complies with the provisions of any applicable data privacy laws and regulations as per Section A(§10) herein. Licensee and SVA acknowledge that the BVQ Software when operated in accordance with the Documentation and these GTC does not access, process or transfer any Personal Information.  Licensee and SVA do not intend or anticipate that SVA will be provided access to any Personal information maintained or accessible by Licensee.  However, in the event that Licensee provides SVA, in any particular case, access (whether remote or on-site) to any Licensee operating environment in which (a) the Software may be used, and (b) Personal Information may be accessible, SVA shall comply with Licensee’s applicable information security procedures, remote or access policies that have been provided to SVA in writing.  Nevertheless, where any Personal Information is processed by SVA at the request and/or on behalf of Licensee, SVA will act in accordance with Licensee’s reasonable instructions by following such reasonable processing and security procedures as are notified to SVA in writing. Licensee is solely responsible for ensuring that all processing and security procedures comply with applicable data protection law. Licensee shall defend, indemnify and hold SVA harmless in respect of any loss or damage suffered by SVA as a result of any failure by Licensee to comply with this H(§4)(4).  As used herein, “Personal Information” means all information about individuals, including, but not limited to, names, signatures, addresses, telephone numbers, account numbers, social security numbers, credit reports, demographic information, financial and other personal data, health information, transaction information, and lists of customers, employees, or investors, created, maintained or accessible by Licensee.
5. SVA shall not be liable for any delay or failure to provide the SVA Software which arises as a result of a failure by Licensee to comply with this Section H(§4).

§5 Violation of third‐party copyrights or trade secrets

1. For BVQ Enterprise and BVQ Entry Software accepted by Licensee, and excluding any accepted BVQ Entry Demo BVQ Free Software, Sections A(§9)(2) through A(§9)(6) sets forth Licensee’s sole right with regard to any third party Infringement Claims concerning such provided BVQ Software.
2. Sections H(§5)(1) states the entire liability of SVA to the Licensee with respect to the infringement of any third party intellectual property rights with regard to BVQ Software.

§6 Term and Termination with regard to BVQ Software

Section A(§4) herein sets forth the rights and obligations of the parties with regard to the BVQ Software.  Licensee’s right to use the BVQ Entry or BVQ Enterprise Software shall expire at the end of the Term specified in the Order Confirmations, or absent an Order Confirmation, a SVA written proposal or quote accepted by Licensee.  Prior to the end of the Term, Customer may request in writing from SVA Software, a renewal term that SVA Software may grant or decline in its sole discretion.  Any granted renewal term shall be subject to the then current version of these GTC. 

SCHEDULE A

SVA BVQ Software Maintenance Agreement

The terms in this schedule with an initial capital letter have the meaning set forth in the associated GTC hereto, or in this Software Maintenance Agreement (“Maintenance Agreement”).

§1             User Authority Certificate

1.1        User authority for Software licensed under the Agreement is included in SVA’s User Authority Certificate. The measure for extent of this user authority is, for example, the number of copies, terabytes or single systems (such as storage systems).

1.2        Together with the Licensee’s (also referred to as “Customer’s” herein) relevant paid invoices or purchase confirmation receipts, the User Authority Certificate acts as proof of usage permission for the Customer.

§2            Validity and Duration

2.1 Subject to this Maintenance Agreement and payment of the maintenance fee specified by SVA (“Maintenance Fee”) for perpetual licenses to the BVQ Entry or BVQ Enterprise Software accepted by the Licensee, SVA’s maintenance of the Software for Customer commences on the Effective Date and continues for the Term of the Maintenance Agreement, unless otherwise stipulated in an amendment to this Maintenance Agreement signed by both parties.

2.2 Subject to this Maintenance Agreement and payment of the rental fee specified by SVA (“Rental Fee”) in association with the rental licenses the BVQ Entry or BVQ Enterprise Software accepted by Licensee, SVA’s maintenance of the BVQ Software for Customer commences on the Effective Date” and continues for the rental Term of such Software.

§3             Maintenance Services

In consideration for payment by the Customer of the applicable Maintenance Fee or Rental Fee and subject to the terms and conditions of this Maintenance Agreement, SVA shall provide the maintenance and support of the BVQ Software specified in Sections 3.1 to 3.6 of this Schedule A. 

3.1 SVA shall provide Customer with the latest versions, releases or updates (“Updates”). Customer is authorized to use such Updates in accordance with the rights of use granted under the GTC, including Sections H(§3) and H(§4). SVA will notify Customer to the extent that downloads of a particular Update is available on the SVA website.

3.2 Newly developed program modules / platforms / options will not receive maintenance services under this Maintenance Agreement and require an additional and separate license and maintenance agreement(s) specifying any maintenance services for such items.

3.3 SVA shall provide Customer support for: (a) general questions about installation and use, and b) in the event of software Error. SVA shall process all reports of Errors by Customer via the Service Request Email or by the Web Portal specified below or as otherwise updated by SVA. As used herein, “Error” means either (a) a failure of the BVQ Software to perform in accordance with the Documentation; or (b) a cessation, interruption or degradation of the usual functionality of the BVQ Software.

3.4 Processing of properly-reported Errors by Customer under this Maintenance Agreement shall be carried out by SVA Operational Services. The contact information and hours of operation of SVA Operational Services shall be provided in a sperate document to be provided to the Customer in association with the Order Confirmation. SVA will analyze reported Errors and advise the Customer on how to circumvent or remedy the identified Error.

3.5 The maintenance services are provided for the latest version of the respective BVQ Software. The maintenance obligation for older versions of such BVQ Software ends one (1) year after a corresponding new version is made available by SVA.

3.6 In order to provide maintenance and support for a reported Error, SVA may request remote access to the Customer’s system in order to supply support during the phase of Error cause identification. The Customer remains responsible for adequate protection of his systems and all files included therein, whenever SVA accesses such systems and files with Customer’s permission.

3.7 SVA’s maintenance services shall not include the diagnosis and rectification of any reported alleged Error resulting from:

• (a) use of the BVQ Software other than in accordance with the License(s), the improper use, operation or neglect of the Software or the equipment upon which it is run or the use of the BVQ Software for a purpose for which it was not designed;
• (b) the modification of the BVQ Software or its merger (in whole or in part) with any other software except as expressly permitted by the License;
• (c) the failure by the Customer to implement maintenance releases or recommendations in respect of or solutions to incidences previously advised by SVA;
• (d) any repair, adjustment, alteration or modification of the BVQ Software by any person other than SVA without SVA’s prior consent;
• (e) rectification of lost or corrupted data arising for any reason other than SVA’s own negligence;
• (f) loss or damage caused directly or indirectly by operator error or omission;
• (g) a fault in Customer or third party software or applications or any upgrade or new release in respect thereof; or
• (h) a fault in the equipment or in any other software operating in conjunction with or integrating with the BVQ Software.

3.8 SVA’s maintenance services shall not include the rectification of any reported alleged Error that cannot be replicated by SVA.

3.9 SVA shall notify the Customer of the availability of maintenance and new releases from time to time at the sole discretion of SVA and shall provide such releases to the Customer for no additional fee.  The Customer shall install, test and use each maintenance release not later than three (3) months after the date on which SVA notified the Customer of the availability of such maintenance release.

§4             Maintenance Fee

For the perpetual license of the BVQ Entry or BVQ Enterprise Software accepted by Licensee, the Maintenance Fee specified in the Order Confirmation shall be payable by the Customer within thirty (30) days of receipt of SVA’s invoice therefor or as otherwise agreed to in writing by the parties. The Maintenance Fee is exclusive and net of any other sales tax that the Customer may be additionally obligated to pay.

§5             Restrictions

SVA software maintenance is not provided:

• (a) for the application of SVA programs outside of the specified operational environment or licensed Territory; or
• (b) in the case of Errors caused by hardware or third-party software products.

§6             Term and Termination

6.1          Subject to payment of the applicable Maintenance Fee or Rental Fee and Customer’s compliance with all its obligations in this Maintenance Agreement and the Agreement, this Maintenance Agreement shall commence on the date, and shall continue in effect for the duration, specified in the User Authority Certificate, unless terminated in accordance with this Schedule A(§6)(6.1). For the Maintenance Agreement in connection with a perpetual license of the BVQ Entry or BVQ Enterprise software accepted by Licensee, unless an initial term or subsequent term has been agreed upon separately in writing, this Maintenance Agreement may be terminated at the end of the respective contract year by Customer providing at least three (3) months advanced written notice.  Otherwise, if there is no such advance written notice is provided to SVA, this Maintenance Agreement (and in case of a BVQ Software rental, the associated software rental agreement likewise) will be extended by a further contract year and Customer will be invoiced accordingly.

§7             Confidentiality

The confidentiality GTC Section A(§10) governs the provisions of this Maintenance Agreement and all information and documentation disclosed by the other party (the “Disclosing Party”), before or after the Term of this Maintenance Agreement.  “Confidential Information” expressly includes the software and the documentation provided to the Customer as part of SVA’s maintenance and support obligations under this Schedule A.  This Section 7 shall survive termination of this Maintenance Agreement for whatever cause.

§8             Warranties and Limitation of Liability

8.1            Both parties warrant that they have the authority to enter into this Maintenance Agreement and that so doing shall not put such party in breach of any agreement to which it is a party or otherwise bound.

8.2            SVA warrants that it will perform the maintenance services with commercially reasonable care and skill.

8.3           SVA hereby expressly excludes, to the fullest extent permissible by law, all warranties, representations, guarantees, conditions and terms, other than those expressly set out in this Maintenance Agreement, whether express or implied by statute, common law, trade usage or otherwise and whether written or oral.

8.4            Subject to Schedule A (§8)(8.7) herein, each party’s sole remedy with respect to any claims arising out of this Maintenance Agreement shall be limited in the aggregate to the monies paid by Customer to SVA under this Maintenance Agreement during the twelve (12) months prior to the date of the claim.

8.5            In no event shall either party be liable for any special, indirect, incidental, or consequential damages, loss of profits and goodwill, loss of management time, business or business benefit, or, in SVA’s case, the cost of procurement of substitute products by Customer even if advised of the possibility of such damages. Nothing in this Schedule A (§8)(8.5) shall be deemed to limit the Customer’s obligation to pay in full the Maintenance Fee validly due and payable under this Maintenance Agreement.

8.6           In no circumstances shall SVA be liable for any loss or damage resulting from:

• (a) a failure by the Customer to keep full and up to date security copies of the BVQ Software and data it uses in accordance with best computing practice; or
• (b) any failure by the Customer to comply with the provisions of this Maintenance Agreement or the GTC.

8.7.           For the avoidance of doubt, nothing in this Maintenance Agreement shall be deemed to exclude, restrict or limit liability of either party (or their respective agents or sub-contractors) for death or personal injury resulting from their negligence or any liability for fraudulent misrepresentation.

§9             Additional Services

9.1.           Upon request by the Customer, SVA may provide additional services with regard to the BVQ Software that are not provided by this Maintenance Agreement (“Additional Services”). Such Additional Services can be provided pursuant to a separate order request and agreement and subject to an additional fee. This applies in particular to the following services:

• (a) SVA-provided services at Customer’s premises or otherwise to the extent not required for providing support under this Maintenance Agreement;
• (b) Customer-requested services performed outside SVA’s business hours of Business office hours are Monday through Friday from 8:00 a.m. to 5:00 p.m. (CET or CEST, as the case may be) and holidays;
• (c) Services required due to errors caused by persons or entities other than SVA or SVA-authorized persons;
• (d) Services which are required by force majeure or other circumstances for which SVA is not responsible;
• (e) Requested services for the installation of an update / upgrade / release and corresponding training for same;
• (f) Services required for Customer’s amended or new requirements including, for example, advising Customer when adapting and creating user software and / or general computer-technical questions that are not related to the BVQ Software; and
• (g) Services for implementing or configuring Customer’s computer and/or network systems.

9.2.          SVA retains all right, title and interest in and to any and  works which are created by SVA or otherwise result from its provision of maintenance services under this Maintenance Agreement and/or in the providing of Additional Services under this Schedule A (§9), including any and all copyrights, patents, utility models or design works (“SVA Works”).

9.3.           In the absence of a separate written agreement signed by Customer and SVA regarding SVA Works, SVA hereby grants to Customer a limited, non-exclusive right to use in the Territory such SVA Works, but only for the intended purpose set forth in the Agreement or the User Authority Certificate. SVA reserves all other rights in and to the SVA Works. Other than the right to use the SVA Works granted to Customer in this Schedule A (§9) (9.3), any further granting of usage, disclosure, processing or other rights to Customer must be in a separate written agreement signed by Customer and SVA.

§10           Miscellaneous

The Miscellaneous terms and conditions under the GTC, A(§12) shall additionally apply to this Maintenance Agreement.