Austria General Terms and Conditions of SERVICES

Last update on July 15, 2026

General Terms and Conditions of Services of Evernex (hereinafter referred to as EVERNEX)

1. Enforceability of the General Terms and Conditions

1.1. The Client has the possibility, in addition to the acquisition of Equipment from EVERNEX to conclude with EVERNEX a service contract which general terms and conditions (hereinafter the “General Terms and Conditions”) are provided below. In case of discrepancies between the German and the English language version, the German version shall prevail.

1.2. Any written approval by Client for deliveries and services by EVERNEX in relation to preventive and/or corrective hardware services including future ones (defined below as the “Services”) are expressly and exclusively governed by these General Terms and Conditions; these are part of the Contract (as defined below).

1.3. EVERNEX does not recognize any conflicting or supplementary terms and conditions of the Client that deviate from these General Terms and Conditions, unless EVERNEX has expressly agreed to their validity in writing. This requirement of consent shall apply in any case, including for example, even if EVERNEX performs the services unconditionally with knowledge of the Client’s terms and conditions or where EVERNEX otherwise does not expressly object to them in a particular case. Any reference by EVERNEX to a document containing or referring to the Client’s or a third party’s terms and conditions shall not constitute consent to their application.

1.4. These General Terms and Conditions constitute, together with the Particular Conditions (as defined below), the contract governing the relationship between the Parties (hereinafter the “Contract”). In case of contradiction or difficulty of interpretation between the General Terms and Conditions and the Particular Conditions, the Particular Conditions shall prevail. Individual agreements made with the Client in specific cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these General Terms and Conditions; subject to proof to the contrary, a written contract or written confirmation by EVERNEX shall be decisive for the content of such agreements.

2. Definitions

2.1. For the purpose of these General Terms and Conditions, the following terms, whether used as a singular or a plural, shall have the meaning below:

2.2. “Access Constraint”: Identification of all the means and/or authorizations necessary to access a Physical Address or specific areas within the Physical Address to provide the Services, such as security clearances, certifications, personal badges, etc.

2.3. “Client”: any purchaser of the Services or any customer of the Client benefiting from Services provided by EVERNEX.

2.4. “Configuration”: Document listing for each Equipment, all components and their technical and/or commercial references.

2.5. “Critical Default”: default totally preventing the use of an essential function of the Equipment.

2.6. “Default”: any dysfunction or non-conformity of the Equipment compared to the documentation of reference, which prevents the normal use of all or part of the Equipment functions, or which causes an inaccurate result or an inappropriate treatment, whereas the Equipment is operated by the Client in compliance with its documentation and destination.

2.7. “Equipment”: IT hardware or hardware components of the Client subject to the Services.

2.8. “EVERNEX”: contracting entity (EVERNEX INTERNATIONAL SAS or any of its affiliates) entering into a Contract to provide Services to the Client.

2.9. “History of failures and incidents”: Document identifying all interventions performed on the Equipment during the last 12 months prior to the signing of the Contract.

2.10. “Major Default”: Default impacting an essential function of the Equipment without preventing totally its use.

2.11. “Minor Default”: Default which is neither Critical nor Major and that causes a disruption of minor or ancillary functions of the Equipment.

2.12. “Order”: any order of Services made by a Client by sending a purchase order to EVERNEX, referring to a Service Offer priorly issued by EVERNEX. To be accepted by EVERNEX, any Order from a Client must have the relevant Service Offer of EVERNEX attached to it or must at least expressly refer to this relevant Service Offer number. A purchase order provided by the Client without the attached or referred Service Offer number may not be accepted by EVERNEX.

2.13. “Particular Conditions”: any specific terms agreed between the Parties as reflected in the Services Offer pertaining to an Order; or, as the case may be, any applicable Scope of Work (SOW) expressly referred to in an Order.

2.14. “Party (/-ies)”: EVERNEX and/or the Client.

2.15. “Physical Address”: Physical location of each Equipment. An address is defined by a country, a postal code, a city, a street, and its number.

2.16. “Scope of Work” or “SOW”: any document issued by EVERNEX detailing the Services, which is either attached to a Service Offer or is issued as a standalone document, as the case may be.

2.17. “Services”: services to be provided by EVERNEX in the form of measures for preventive and/or corrective hardware maintenance and any deliveries of spare parts (if applicable), all as specified in the Contract (as defined above).

2.18. “Service Offer”: any document issued by EVERNEX further to a Client’s request, detailing the Services, the Particular Conditions including the conditions of performance of the Services to the Client, the fees for the Services as well as any Particular Conditions.

2.19. “System Log”: Result of system commands executed on Equipment that identify and list its components and their technical and/or commercial references. This also includes the health status of the various components.

3. Effective Date – Duration – Termination

3.1. The Contract shall take effect on the start date mentioned in the Particular Conditions. Unless otherwise provided in the Particular Conditions, it is concluded for an initial term of one (1) year, and shall automatically renew for successive one (1) year terms, unless either Party gives the other Party written notice of non-renewal, such notice to be received no later than three (3) calendar months before the end of the then-current term (initial or renewal).

3.2. The Contract cannot be terminated by a Party before its term except as expressly provided otherwise in the Contract. Either Party’s right to terminate for cause remains unaffected. A right to terminate for cause due to breach of contract is given if a material breach of Contract imputable to the other Party is not remedied within thirty (30) days of the prior written notice sent to the defaulting party.

EVERNEX shall be entitled to terminate the Contract for cause in case of dissolution, total or partial cessation of business activity of the Client, or in case of liquidation of similar procedure affecting the Client, in accordance with the statutory regulations.

3.4. The Client shall also be entitled to terminate the Contract early for its convenience with a prior written notice of sixty (60) days to be sent to EVERNEX. Such termination shall entitle EVERNEX to claim a termination fee representing 20% of the applicable fees for the remaining contractual period.

3.5. In case of an increase of the fees under Article 7.3 below, the Client may terminate the Contract, with a prior written notice of sixty (60) days during which the existing fees will continue to apply.

3.6. In case of Client’s objection to a fee increase under Article 7.4 below, and in case of Client’s objection to modifications to these General Terms and Conditions under Article 13.1 below, EVERNEX may terminate the relevant Contract(s), with a prior written notice of sixty (60) days during which the existing fees and terms will continue to apply.

3.7. Termination or expiration of the Contract shall not affect contractual provisions which are by nature designed to survive the Contract.

4. Services

4.1. Services provided by EVERNEX include, depending on modalities and options defined in the Particular Conditions:

• a corrective hardware maintenance, which consists for EVERNEX to provide services that, at Client’s request, aim at restoring the good functioning of the Equipment, which is the object of the Contract, in case of Default;
• a preventive hardware maintenance, which consists for EVERNEX to provide services aiming at maintaining and verifying the good functioning of the Equipment which is the object of the Contract. It can be performed (i) either by scheduling onsite visits to control the Equipment environment and perform visual control of the Equipment or (ii) remotely through log system analysis made available by the Client or through remote logging to the Equipment. The frequency of preventive maintenance depends on options chosen by the Client, as defined in the Particular Conditions.

4.2. With regard to both preventive and corrective maintenance activities, EVERNEX’ obligation does not consist in assuming responsibility for the achievement of a specific result, but rather in making reasonable endeavours to restore and/or maintain the normal operation of the Equipment which is the object of the Services, using economically reasonable measures and means. Such measures and means shall include: skilled workmanship, testing appliances, tools and, if necessary, supply of spare parts whether new or equivalent in order to replace the Equipment’s defective parts, modification of the documentation or any other mean that in EVERNEX’ reasonable judgement may prevent the repetition of the Default.

4.3. The supply of spare parts remains at EVERNEX’s reasonable discretion in the context of its obligation to provide the Services. Unless agreed otherwise, the costs of spare parts are included in the fees related to the Services as described in Article 4 of the General Terms and Conditions. The spare parts that are not within the scope of the Services as defined in the Contract are not included in the amount of fixed fees to be paid pursuant to Article 7 below.

4.4. If the Client’s request is caused by an incident which is not imputable to the Equipment, EVERNEX shall charge the treatment of the incident at an hourly rate, based on related prices applicable at the time of the intervention.

4.5. Services of corrective maintenance are performed within the time limits defined in the Particular Conditions, depending on the options chosen by the Client and the gravity of the Default (Minor, Major or Critical).

4.6. Services detailed in the Contract are in any event performed in compliance with provisions relating to quality of service (“Service Level Agreement” or “SLA”), inserted in the Particular Conditions or contained in a separate document that has become part of the Contract.

4.7. EVERNEX shall be entitled to perform a prior audit of the Equipment subject to the Services, with or without on-site visits.

4.8. Unless provided otherwise in the Particular Conditions, the implementation time will be six (6) weeks. During this implementation time, which is the preliminary period during which EVERNEX gathers the resources necessary for the performance of the Services (and especially takes care of the local availability of the spare parts corresponding to Client’s Equipment configuration), the EVERNEX’ obligation to meet the SLA will be on a “reasonable efforts” basis. Until the Client has met all the necessary requirements for the provision of the Services as described in Article 9, any SLA shall not be binding, as the Client’s failure to meet these requirements impairs EVERNEX’ ability to meet the SLA.

5. Service Modification

5.1. Equipment to be covered by the Services may be added to or removed from the Contract upon agreement of the Parties. Subject to Article 5.2, Equipment may be removed by Client from coverage under the Contract with sixty (60) days’ prior written notice to EVERNEX. Service charges for Equipment added to the Contract will be at EVERNEX’ then-current monthly rate, based on the pricing structure and prices (where applicable) agreed in the Contract.

5.2. Removal of Equipment from the Contract as per Article 5.1 entails a proportionate reduction of the fees, provided however that in the case where the Client reduces the number of Equipment covered by the Services resulting in a reduction of the annual fees under this Contract of 20% or higher, the Client shall pay to EVERNEX an removal fee equal to 50% of the portion of Fees corresponding to the Equipment reduction, that would otherwise be due until the remaining (initial or renewal) contractual term if the Equipment had not been reduced, notwithstanding additional indemnities which could be set forth in the Particular Conditions. Customer’s rights to terminate the entire Contract pursuant to the provisions of Article 3 above shall remain unaffected.

6. Limits of Scope of Services

6.1. The following services are expressly excluded from the scope of Services and from EVERNEX’ responsibilities covered by this Contract:

i. Any maintenance services relating to software, including notably, without limitation, maintenance on networks or computer systems such as software programs, diagnostics of software defaults, new versions or updates of software or programs or drivers or OEM software support;

ii. any backup of data belonging to the Client, or under Client’s control as the Client remains responsible for the proper execution of its backups prior to any Services performed by EVERNEX;

iii. the technical modification of the Equipment;

iv. moving and reinstallation of all or part of the Equipment;

v. the restoration of files in case of accidental destruction or due to the presence of a virus;

vi. the back-up of files and data captures;

vii. the maintenance of modems / telephone lines;

viii. services of training, installation, support and assistance in the operation of Equipment, which may be proposed by EVERNEX under specific contracts of training, installation, support and assistance;

ix. any firmware supply and installations;

x. any support on operating systems;

xi. any intervention in relation to Equipment which is not mentioned in the Particular Conditions;

xii. any intervention related to an Equipment for which not all relevant information necessary for the execution of the Services has been communicated prior to the signing of the Contract, as outlined in Article 9.6.

xiii. If Client fails to comply with its obligations as outlined in Article 9, separate fees shall be payable, provided that Client has accepted a corresponding offer from EVERNEX for such additional services.

6.2. If not included in the Particular Conditions, the services listed below are expressly excluded from EVERNEX’s responsibilities and from the scope of Services and the lump sum fees covered by the Contract. Any of the services listed in this Article may be added in the Particular Conditions after the starting date of the Contract upon agreement of the Parties. Those Services will then be subject to additional invoicing of EVERNEX after quotation or Offer for the relevant Services listed below is accepted by the Client; unless provided otherwise in the Particular Conditions, EVERNEX shall in such case use reasonable, commercially proportionate endeavours to provide the portion of Services listed in this Article without application of any SLA.

The relevant services are the following:

i. Any diagnostic and/or intervention or furniture of spare parts following a failure which occurred before the Term of this Contract;

ii. adding or removing a component from an Equipment;

iii. technical feasibility analysis before adding or removing any component from an Equipment;

iv. replacing parts of an Equipment for aesthetic reasons, which do not affect the good functioning of the Equipment;

v. The repair of any damage, Default, shortcomings, or disruption caused by either (i) the geographical, physical, or technical environment, or by planned power cut with violent stop of Equipment, which does not conform to the manufacturer’s instructions and specifications or (ii) which result:

• from non-compliance with applicable rules and regulations notably in security matters;
• from an accident (including fire and floods) or natural disasters;
• from malicious act, sabotage, robbery by the Client’s personnel;
• from a Force Majeure event, as defined in Article 13.5 below;
• from defective installation, defective supply of electricity for the Equipment, defective control of temperature or local humidity, defective use, management or control of Equipment by the Client or his agents, or from the use of the equipment for other purposes than the one for which they are destined;
• from the Client’s or its agent’s negligence;
• from the use of spare parts which do not comply with the manufacturer’s instructions;
• from the addition or connection of Equipment, parts or components not included in the list of compatible equipment and not authorized by the manufacturer;
• from a default – even temporary – in the supply of energies or cooling (by air or fluids) that are necessary for the good functioning of the equipment;
• from the intervention of a third party or technical services other than EVERNEX’s (including the Client’s or its agent’s technical service). The maintenance of Equipment which has been the object of attempts or repairs, changes, modification, correction, or any distortion by the Client or his agents without EVERNEX’s prior and express approval is expressly excluded. The same applies to any intervention or repair by a third party for maintenance services not provided by EVERNEX; or
• from disruptions affecting or resulting from the Client’s Equipment, servers, operating systems, accessories, stationery, consumables (including batteries, cartridges, piles etc.) not supported by EVERNEX;

vi. The verification, control and compliance to rules and regulations in force, or OEM recommendations or best practices, and of the geographical, physical and technical environment in which the Equipment are located;

vii. The supply of consumable parts, including: batteries, additional tapes and records for safeguard proceeding, or any other accessories related to record support, transceivers etc.;

viii. The replacement of any flash storage of any format (SSD Drives, Flash Module, Flash Accelerator, SDI card) that have reached its maximum amount of write cycles as per original vendor specifications;

ix. The supply of accessories or consumables for printers, such as maintenance kits, alimentation rolls, ink cartridges, toners, ribbons, heads of thermic printing, cleaning kits for head printings, and scanner lamps;

x. Any service provided at locations other than those expressly referred to in the Particular Conditions for preventive maintenance or other Services ordered by the Client;

xi. The replacement of additional PCI cards (graphic card, GPGPU card, raid card, flash card) not disclosed in the quotation phase prior to entering into the Contract;

xii. Performance analysis when no hardware issue is identified.

6.3. Any Service (whether ad hoc or recurrent) not included in the initial scope of Services detailed in the Contract and which would be further entrusted to EVERNEX by the Client, will be charged by EVERNEX at the then applicable fees for such Services. Any Service not included in the initial scope of the Contract shall be subject to an additional quotation or Service Offer issued by EVERNEX and accepted in writing by the Client. Any additional Service that would become recurrent and would thus modify the initial scope of the Contract will be included by reference in the scope of the Contract by way of an amendment for the then remaining term of the Contract.

6.4. The provision of Services does not entail any transfer of know-how, technology or similar rights, whether or not protected by intellectual property rights under applicable laws, from EVERNEX to the Client.

7. Fees

7.1. Services performed by EVERNEX under the Contract are remunerated by fixed lump sum fees, which amount, and modalities of payment are stipulated in the Particular Conditions and in the provisions below, except for situations when additional fees may be charged in accordance with the Contract. Unless provided otherwise, any indication of fees is to be construed as “without added value tax” and any such taxes shall be borne, at the applicable rate, by the Client.

7.2. Unless otherwise stipulated in the Particular Conditions, the fees charged by EVERNEX may vary each semester on 1st January and 1st July. Such variation in the fees will be made by EVERNEX notifying a fee variation to the Client at the latest one (1) month before the fee variation becomes effective.

The fees will be modified upwards or downwards considering the variation of the nominal wage index published by the Federal Statistical Office (in countries other than Germany, any index of an equivalent nature of the Nominal wage index), based on the index level on 1st January of the year in which the Contract is concluded.

The indexation formula used is as follows:

F = F1 (S1/S)

In which:

F = Revised fee

F1 = Fee before revision.

S = For the 1st revision, this is the value of the Nominal wage index on the date of entry into force of the Contract; for subsequent revisions, this is the value of the Nominal wage index on the date of the previous revision.

S1 = value of the last published index at the date of the fee revision.

If the Nominal wage index disappears, the Parties shall agree on the choice of a new index. In the absence of agreement, the competent Court shall substitute the index that it considers most appropriate.

It should be noted that if a revision has not taken place in one semester, this will not prevent EVERNEX from revising the fees the following semesters.

7.3. In the event of substantial and market admitted modification in the conditions of performance of the Services which would render the performance of the Contract thereof excessively costly and unfair for EVERNEX despite the application of the provisions of Article 7.2 above, EVERNEX shall be entitled to increase the amount of the fees charged to the Client, in order to adapt it to the level of the actual market price. Such increase shall be notified to the Client at least one (1) month before it becomes effective. Upon receipt of EVERNEX notification of fee increase, the Client shall have one (1) month to notify in writing to EVERNEX its opposition to such fee increase and decision to terminate the Contract, which termination will be effective sixty (60) days after the Client notification to EVERNEX, with no fee increase.

7.4. In the event of abnormal or inappropriate use of the Equipment, characterized by a high failure rate of the Equipment, EVERNEX may decide at any time to increase the annual fee payable proportionately, reflecting the expected higher cost for EVERNEX in providing the Services given the higher failure rate in relation to the Services pursuant to Article 7.1. Such increase of the fees shall be notified to the Client at least fifteen (15) days before it becomes effective. Upon receipt of EVERNEX notification of the aforementioned fee increase, the Client shall have fifteen (15) days to notify in writing to EVERNEX its opposition to such increase. Upon receipt of the Client’s refusal of this additional billing, EVERNEX may decide to terminate the Contract, which termination will be effective sixty (60) days after EVERNEX’s notification to the Client, in accordance with Article 3.6.

8. Payment terms, payment default

8.1. Unless stated otherwise in the Particular Conditions, fees for the Services are payable annually in advance.

8.2. Unless otherwise specified in the Particular Conditions, payments are due immediately and must be paid without deduction at the latest thirty (30) days after the invoice date.

8.3. In the event of default on payment, EVERNEX may charge the statutory interest rate for default. In addition, a lump sum for default in the amount of 40,00 Euro shall be due in accordance with the statutory provisions. EVERNEX reserves the right to claim further damages caused by the Client’s default, and to exercise other remedies due to default.

8.4. If the Client defaults on the payment in relation to two monthly instalments (where so agreed) or a not insignificant portion of the remuneration, EVERNEX is entitled to declare the entire remaining remuneration due immediately for all Services until the end of the regular term of the affected Contract, and to terminate the Contract for good cause without losing its full claim to payment until the next ordinary termination date. Savings shall not be set off.

8.5. Failure to pay any invoice due within sixty (60) days of the payment day of the invoice is considered a material breach of contract. This may also entail automatically, without former notice, the cancellation or the suspension of Services until all outstanding amounts are paid in full including amounts related to late payment. Such a suspension or cancellation shall entail no discount or reimbursement of the annual maintenance fees.

8.6. EVERNEX shall be entitled to continue performing Services only against advance payment or provision of security if, after conclusion of the Contract, circumstances become known that are likely to significantly impair the Client’s creditworthiness and jeopardize the payment of EVERNEX’ outstanding claims under the relevant contractual relationship (including other Contracts governed hereby).

8.7. The Client may set off only such claims as are undisputed or have been finally adjudicated. The Client may assert a right of retention only in relation to claims that are undisputed or have been finally adjudicated.

8.8. Objections to invoices must be asserted in writing to EVERNEX within six (6) weeks of receipt of the invoice. If the Client fails to raise objections in due time, the invoice shall be deemed approved.

9. Client’s obligations

During the performance of the Contract, the Client shall, at its own costs:

9.1. host the Equipment in a geographical, physical and technical environment complying with regulations in force, including environmental constraints (temperatures, humidity levels, etc.) and the manufacturer’s instructions;

9.2. use the Equipment in a normal and reasonable manner and in accordance with good practice in the IT sector and in the Client’s profession;

9.3. allow free access of EVERNEX’s representative(s) to the Equipment and facilities during maintenance hours and ensure that each intervention can take place in compliance with applicable rules and regulations, notably for security matters. Any SLA will not be applicable until this prerequisite is met by the Client. In case the representative(s) of EVERNEX are unable to access the Equipment and/or the Physical Address, for any reason attributable to the Client, EVERNEX reserves the right to invoice the Client for the travel and mobilization expenses of said representatives, based on a quotation accepted in advance by the Client;

9.3. ensure that at least one of its employees or agents is present during each maintenance intervention by EVERNEX and that EVERNEX’s employees and agents are treated with the same care and respect as Client’s employees and agents;

9.4. Put at EVERNEX’s disposal the resources that are necessary for the performance of the Services: in particular, contact with the related technical unit at EVERNEX (by telephone and computer), supply of electricity, internet access (through a 4G/5G networks access or Wifi provided by Customer) etc.;

9.5. Ensure, prior to each maintenance operation, that all necessary precautions were taken by the Client for the protection and saving of data, programs and computer files and that it took all measures to ensure their safety and confidentiality.

The Client acknowledges that it has been informed of the need to perform a full data backup prior to any performance of EVERNEX Services. The Client shall perform a backup of all data, documents, files, programs and other supporting documents before any maintenance intervention;

The Client remains solely responsible for the backup of its data prior to any Services performed by EVERNEX and acknowledges that it remains solely responsible for the confidentiality and integrity of the backed-up data.

If the Client has failed to meet its backup-related obligations under this Article and has therefore breached its obligation to mitigate damages, EVERNEX’ liability for any data loss is restricted to the typical data restore effort that would have applied, had the Client complied with this obligation.

9.6. The Client undertakes to communicate to EVERNEX, prior to the signing of the Contract, all relevant information necessary for the execution of the Services, namely:

• Configurations and/or System Logs;
• History of failures and incidents;
• Physical Address;
• Access Constraints.

9.7. The Client shall ensure that no repair or intervention of any nature is performed on the Equipment by any technical service other than EVERNEX Services.

9.8. The Client shall collaborate in full transparency with EVERNEX and communicate to EVERNEX all necessary documents and information required for the good performance of Services.

9.9. The Client shall provide the remote connection capabilities to Equipment as per EVERNEX specifications when it is stated to be an absolute pre-requisite to the availability of Services on certain Equipment during the Contract. No SLA shall be applicable when such pre-requisite has not been fulfilled by the Client.

9.10. Unless specifically agreed otherwise, EVERNEX keeps the ownership of all replaced components/parts related to the Services and is formally entitled to keep them following the intervention, to the exclusion of any part that may contain customer sensitive data.

10. Limitation of Liability and Warranty

10.1. EVERNEX’ liability for any claims for damages or wasted expenditures arising out of or in connection with any Contract, regardless of its legal basis (including tort claims), shall be governed by the following provisions of this Article. These shall also apply in favour of EVERNEX’ affiliates as well as its and its affiliates’ employees, suppliers, subcontractors and agents.

10.2. EVERNEX shall be liable to Client without contractual limitation (but under the statutory provisions) for: (a) any wilful misconduct or grossly negligent act or omission, (b) injury to life, body or health, and (c) claims under the German Product Liability Act.

In all other cases, the following limitations shall apply:

i. EVERNEX shall be liable only in the event of a breach of material contractual obligations (also known as “cardinal obligations”, i.e. obligations the fulfilment of which is a prerequisite for the proper performance of the contract, on the compliance with which the Client regularly relies or may rely and the breach of which endangers the achievement of the purpose of the contract).

ii. EVERNEX’ liability shall be limited to the typical, foreseeable damage.

iii. To the extent section ii. applies, the typical, foreseeable damage shall, for each damaging event, be considered to be the net amount of fees paid by Client to EVERNEX for the Services in the 12 months period preceding the damaging event, or 10.000,00 EUR, whichever is higher.

iv. To the extent EVERNEX is liable for loss of data, such liability shall be limited to the costs of the commercially reasonable and customary efforts to restore the lost data from the last available backup.

v. EVERNEX shall not be liable for loss of profit, anticipated savings not realised, indirect loss or consequential loss, for any loss arising as a result of a breach of this Contract by the Client, or for slightly negligent breaches of ancillary obligations (i.e. non-essential contractual duties).

vi. The limitation period for all claims for damages (except for claims for damages due to defects, which shall be governed by Article 10.4) shall be 18 months from the statutory beginning of the limitation period, unless a shorter limitation period is provided for by law.

10.3. EVERNEX does not give any guarantee in relation to the Services (or any delivered spare parts) that would result in unlimited or fault-independent liability under the German Civil Code, unless unlimited liability and/or fault-independent liability has been expressly agreed in writing. The mere use of terms such as “guarantee”, “warrant” or similar wording is not sufficient to create such liability.

10.4. With regards to the supply of spare parts within the context of the provision of Services, EVERNEX shall assume the warranty obligations provided for by law, with the exception of the obligation to provide updates. However, the limitation period for warranty and claims for defects shall be 12 months, except for claims for damages. Claims for damages due to defects that are not based on wilful misconduct, gross negligence or injury to life, body or health are time-barred also within 12 months; claims under the Product Liability Act remain unaffected.

11. Confidentiality

11.1. Both the Client and EVERNEX acknowledge that any information, data and business documentation of any nature, methods, know-how, source codes, manufacturing processes used or implemented by the Client or EVERNEX under the Contract are and shall remain each Party’s exclusive property and shall be kept strictly confidential.

11.2. As a consequence, each Party commits not to disclose such information, data and documentation to any third party, and/or not to exploit them for its own account or on behalf of any third party without the Party’s prior and express consent. Any source codes and manufacturing processes used or introduced by the Client or EVERNEX under this Contract are and shall remain the exclusive property of the respective party or any licensing third party and shall be kept strictly confidential.

11.3. Each Party undertakes to return to the other at the latter’s first request, all information, data and documentation received from the other for the purpose of the Contract.

11.4. Each Party shall cause its commercial partners, employees or agents to abide by a confidentiality obligation equivalent to the one set forth herein.

11.5. This confidentiality obligation shall survive termination of contractual relationships between the Parties and shall bind both Parties until the (i) the latest date between five years after the starting date of the Contract and the duration of the Contract, or (ii) the date when related information, data and/or documents fall into the public domain.

12. Non-Solicitation, No Circumvention

12.1. Unless otherwise provided by applicable laws, during the term of the Contract and for a duration of one (1) year as from its expiration or termination, the Client commits not to actively solicit any EVERNEX employee directly involved in providing the Services to the Client, without EVERNEX’s prior and express approval. In case of breach of this commitment, the Client shall pay to EVERNEX a penalty equal to 50% of the gross annual salary paid by EVERNEX to the related employee.

12.2. Unless otherwise provided by applicable laws, during the term of the Contract and for a duration of one (1) year as from its expiration or termination, the Client commits not to engage any of EVERNEX’ subcontractors (including independent contractors) who were deployed to provide the Services and whom the Client became aware of solely through the performance of the Services, for the provision or identical or substantially similar services, thereby bypassing EVERNEX. In case of breach of this commitment, the Client shall pay to EVERNEX a penalty equal to the net fees paid or payable by the Client to EVERNEX for the Services substituted with Client’s direct contract with the subcontractor in the preceding twelve (12) months.

13. Miscellaneous

13.1. Amendments: EVERNEX may from time to time notify Client on modifications to the General Terms and Conditions that are intended to take effect also on Contracts previously agreed and still in effect (for future Contracts, Article 17 shall apply). Upon receipt of EVERNEX’ notification of the modification, the Client shall have sixty (60) days to notify EVERNEX in writing of its opposition to the modifications. If the Client fails to raise its objection in due time, the proposed modifications shall be deemed agreed by the Client. Upon receipt of the Client’s objection, EVERNEX has thirty (30) days to decide whether to exercise its right to terminate the Contract in accordance with Article 3.6.

Unless otherwise provided in the General Terms and Conditions, any modification of the Particular Conditions must be in writing to be effective.

13.2. Severability: Should one clause of the Contract be declared invalid, unenforceable or void by a competent Court ruling according to the law applicable to this Contract, the other contractual provisions remaining fully in force. Any invalid, unenforceable or void provision shall be deemed replaced by such valid, enforcable and effective provision as most closely reflects the economic purpose pursued by the Contract. If the Contract or these General Terms and Conditions has any gaps, such legally valid provisions are deemed to be agreed which the Parties would have agreed had they known the gap, bearing in mind the economic targets of the Contract and these General Terms and Conditions.

13.3. Waiver: It is expressly agreed that no failure or delay on the part of either Party in invoking any provisions of the Contract shall not operate as a waiver thereof. Any waiver of any provision hereof shall in any event require the written form to be effective.

13.4. Assignment of Contract: It is expressly agreed that the Client shall not assign or transfer any rights and obligations under this Contract without EVERNEX’s prior and written consent. In relation to monetary claims, Section 354a of the German Commercial Code shall remain unaffected.

13.5. Force Majeure: Each of the Parties shall not be considered as defaulting when performance of its obligations has been delayed, disrupted or prevented by a case of an event that is beyond its, its suppliers or its service providers’ reasonable control (“Force Majeure”). In particular, the following shall be considered as events of Force Majeure: fire, strikes, floods, epidemics, natural disasters, quarantine restrictions, wars, transport disruption, shortage of labour, raw materials or means of production.

13.6. Relationship: In the performance of the Contract, both Parties shall be deemed to be acting in the capacity of an independent contractor with respect to the other. Neither Party shall be deemed to be a partner of nor a shareholder of a joint venture with the other, and the employees and agents of one Party engaged in performing any Services hereunder shall not be deemed to be the employees or agents of the other.

13.7. Subcontracting: EVERNEX shall be entitled to sub-contract the performance of any of its obligations under the Contract.

13.8. References

Each Party is authorized to name the other Party’s reference in its commercial or marketing materials and publications.

In addition, the Client grants to EVERNEX the right to use its name and, logo (the “References”) on EVERNEX websites and/or on sales promotion materials during the Term of a Contract hereunder, unless the Client notifies in writing to EVERNEX its refusal to use the References at any time during the Term of this Contract.

14. Applicable Law – Jurisdiction

14.1. Applicable Law: The business relationship between the Parties shall be governed exclusively by the laws of the Federal Republic of Germany, to the exclusion of any rule of conflict of law. The application of the United Nations Convention on International Sales of Goods executed in Vienna on April 11th, 1980, is expressly excluded.

14.2. Jurisdiction: All disputes relating to the interpretation or application of a Contract, as well as all disputes relating to commercial relations between the Parties, shall be subject to the exclusive jurisdiction of the courts of the place where the contracting EVERNEX company has its registered office. Mandatory statutory provisions regarding exclusive jurisdictions shall remain unaffected.

15. Anti-corruption – Anti-Bribery

15.1. The Client represents and warrants that, in the performance of the Contract, he will not, directly or indirectly, perform any act that would cause him to violate, or risk violating, anti-bribery laws. For the purposes of this clause, anti-bribery laws means all foreign or national anti-bribery laws and regulations applicable in each country in which the Client operates, as amended from time to time, and any law designed to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (hereinafter collectively referred to as “Anti-Bribery Laws”).

15.2. In connection with a Contract and the activity arising from it, the Client shall not pay, offer, promise or authorise the payment, directly or indirectly, of money or other value to a public official or anyone else for the purpose of inducing or rewarding that person or anyone else for improper performance of his or her role or duties; or for the purpose of influencing a public official in any decision, act or performance of his or her official role or function, including a decision not to perform that role or function, in order to assist a third party or EVERNEX in obtaining or retaining business or commercial advantage.

15.3. The Client agrees that EVERNEX shall have the right, if it has objective grounds to believe that a breach of this clause may have occurred, and upon reasonable written notice, to conduct an investigation for the purpose of verifying the Client’s compliance with the Anti-Bribery Laws and this clause. The Client agrees to cooperate fully with such investigation and audit.

15.4. The Client agrees that if EVERNEX knows or has reasonable grounds to suspect that the Client is or has been engaged in conduct which violates this clause, or which violates or is likely to expose EVERNEX to a risk of violation of the Anti-Bribery Laws, EVERNEX may terminate the Contract immediately and claim indemnification from the Client for any prejudice it has suffered.

15.5. The Client shall immediately report to EVERNEX any violation of the Anti-Bribery Laws which it becomes aware of or which it has reasonable grounds to believe has been committed in connection with the transactions entered into on behalf of EVERNEX. EVERNEX shall not be liable for any claims arising out of or relating to the unlawful activity or claims alleging unlawful activity by the Client, regardless of the nature or location of such activity. The Client will also indemnify EVERNEX and EVERNEX will not be liable for any damages, penalties, fines and/or costs of any kind incurred as a result of any claim, suit or investigation arising out of or in connection with any breach of this clause by the Client.

16. International trade sanctions – Export controls

16.1. The Client warrants on an ongoing basis that itself and its customers receiving Services, will comply with applicable import, export control and economic sanction laws and regulations, including (but not limited to) those of Germany, the United Nations, the United States, the United Kingdom, and the European Union, that prohibit or restrict the export, re-export, or transfer of products, technology, services or data, directly or indirectly, to or for certain countries, end uses or end users.

16.2. The Client shall provide EVERNEX with information about its customers, products and/or services necessary for export and sanctions laws and regulations compliance. Failure to comply with these provisions may result, at reasonable opinion of EVERNEX, in immediate termination and/or suspension, in whole or in part, of the Contract effective upon EVERNEX’s notice.

16.3. Client shall not sell, export or re-export, directly or indirectly, to the Russian Federation or for use in the Russian Federation any goods provided under or in connection with a Contract that fall under the scope of Article 12g of Council Regulation (EU) No 833/2014. Client shall undertake its best efforts to ensure that the purpose of the foregoing sentence is not frustrated by any third parties further down the commercial chain, including by possible third party recipients of the Services. The Client shall set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain, that would frustrate the purpose of the first sentence.

Any violation of the foregoing shall constitute a material breach of an essential element of the Contract, and EVERNEX shall be entitled to seek appropriate remedies, including, but not limited to: (i) termination of the affected Contract for cause with immediate effect; and (ii) a penalty of 50% of the total annual fees payable for the Services under such Contract.

The Client shall immediately inform EVERNEX about any problems in applying the obligations stated above in this Article, including any relevant activities by third parties that could frustrate the purpose of these restrictions. The Client shall make available to EVERNEX information concerning compliance with these obligations within two (2) weeks of EVERNEX’ request of such information.

17. Modification of General Terms and Conditions

EVERNEX reserves the right to modify and update these General Terms and Conditions from time to time. The version of the General Terms and Conditions binding on the Client is the version in force upon an Order is placed by the Client. The possibility to modify the General Terms and Conditions during the duration of a Contract under Article 13.1 remains unaffected.

18. Data protection

18.1. In the context of performing its Services, EVERNEX may collect and process personal data on behalf of the Client.

18.2. In this respect, it is agreed between the Parties that, to the extent necessary, EVERNEX will be qualified as a Data Processor and the Client as a Data Controller within the meaning of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (“GDPR”).

18.3. To the extent that EVERNEX should process data for the Client, the Parties will enter into a processing agreement under the specific contractual arrangements.