This Customized Service Contract (CSC) No. – hereinafter referred to as ‘Agreement’ – shall come into legal effect based on your order and our Order Confirmation No. dd. without requiring your reconfirmation or a signature. You are hereinafter also referred to as "Partner", we as "ASC" and both together or individually as "Party(ies)".

You will receive support for the Subject of Agreement (cf. Section 1) within the scope of the selected service elements:

The basis of this Agreement is formed by the chosen CSC Basic Concept below:

CSCpremier (see 9.1)

CSCcertified (see 9.2)

CSCspecial (see 9.3)

The following Time of Performance and Response Time conditions apply:

RESPONSEbasic (see 10.1)

RESPONSEplus (see 10.2)

RESPONSEpremier (see 10.3)

SERVICEpremier (see 10.4)

The CSC Basic Concept will be supplemented by the following selected Service Extensions:

ONSITEplus (see 13.1)

REPAIRplus (see 13.2)

RECOVERpremier (see 13.3)

All weekdays and times mentioned in this Agreement regarding the provision of services refer exclusively to Central European Time Zone (CET) excluding bank holidays in Germany (except SERVICEpremier).

Unselected Service Extensions are expressly not part of this Agreement.

Subject of Agreement

The services listed in this contract apply in general exclusively to the software components of the above Subject of Agreement. Hardware components are only included if a corresponding service extension has been concluded.

Equipment Location

(Name of the User)

(Building / floor)

(Street)

(City, country of the User)

– hereinafter referred to as ‘User’ –

Beginning of Agreement

If the Subject of Agreement is installed by ASC, the Agreement comes into effect with handover, provision, acceptance, or commissioning of the Subject of Agreement – depending on whichever comes first – without the need of further confirmation or a countersignature (cf. offer element “Installation and handover”).

In all other cases: (Date)

Duration of Agreement

Twelve (12) months

Contract Fee

EURO	(amount)	per 12-month period

The contract fee above is considered annually in the sense of a 12-month period from the “Inception of Agreement” date referred to in section 3, and according to the initial “Duration of Agreement” referred to in section 4 and for the equipment of the Subject of Agreement specified in section°1 at the time the contract is issued. Adjustments according to section 22 may occur after the initial period.

Billing

In advance for the entire 12-month period

Payment Conditions

Within 14 days after invoice and delivery date, strictly net.

Special Agreements

(none)

Responsibilities of ASC

For CSCpremier, ASC undertakes to provide to Partner or to User the following basic services for the ‘Subject of Agreement’ listed under section 1 during the agreed Time of Performance

ASSISTcare:	ASC Hotline Support

REMOTEcare:	ASC Remote Diagnose & Service

ANALYZEcare:	ASC Trouble Shooting and Problem Analysis (Level 3 Service)

UPGRADEcare:	Provision of Software Upgrades for the latest version of the ASC software

UPDATEcare:	Provision of Software Updates for the latest version of the ASC software

SOFTcare:	Provision of Software Updates for the latest version of software components provided by ASC

by third parties

DOCUcare:	Technical Documentation

9.2 For CSCcertified, ASC undertakes to provide to certified Partners the following basic services for the ‘Subject of Agreement’ listed under section 1 during the agreed Time of Performance

ANALYZEcare:	ASC Trouble Shooting and Problem Analysis (Level 3 Service)

UPGRADEcare:	Provision of Software Upgrades for the latest version of the ASC software

UPDATEcare:	Provision of Software Updates for the latest version of the ASC software

SOFTcare:	Provision of Software Updates for the latest version of software components provided by ASC

by third parties

DOCUcare:	Technical Documentation

Note: CSCcertified is only available for certified and approved Partners, as in this case all Level 1 & 2 Services as indicated in section 15.5 will be provided by the Partner.

For certain software items, a complementary CSCspecial Agreement is required.

CSCspecial is only available in conjunction with a CSC Basic Concept for standard items included in or related to an overall solution. The terms and conditions of the chosen CSC Basic Concept shall also apply for CSCspecial.

After verification and approval by ASC, CSCspecial may also be concluded for customer specific software developments or adaptions via Professional Services. Such CSCspecial for Professional Services is only available in conjunction with a CSC Basic Concept for standard items included in or related to an overall solution. The terms and conditions of CSCspecial for Professional Services are subject of a supplementary individual agreement with ASC.

No operation of Subject of Agreement

This Agreement includes the aforementioned basic services and expressly does not include the operation of the Subject of Agreement by ASC. The Partner is the operator of the solution and thus responsible for the relevant measures required to maintain operation, including the performance of the usual duties of precaution and cooperation (e. g. Service Management, Change Management, Release & Deployment Management, Access Management, Software Configuration Management and Service Continuity Management). The Partner is free to effectively transfer its responsibilities to the User of the Subject of Agreement or to any other suitable third party; the Partner must ensure that the requirements associated with this are fulfilled by the aforementioned.

10. Time of Performance and Response Time

ASC will make all reasonable effort to provide the service within the agreed and below-mentioned Response Time. Generally, all Response Times are effective from receipt of an error message issued by the Partner or User according to the Fault Priority Class listed in section 11.

RESPONSEbasic: Standard Time of Performance / Standard Response Time

Fault Report	Monday to Friday, 08:00 to 18:00 o’clock
Time of Performance	Monday to Friday, 08:00 to 18:00 o’clock
Fault Priority Class	Emergency / SOS	Priority 1	Priority 2	Priority 3
Response Time after Fault Report	4 hours	8 hours	Next Working day	Within two (2) working days
Beginning of Remote Support within	8 hours	Next Working day
If the Remote Service did not succeed, beginning of On-Site Intervention	Next Working day	Within two (2) working days

The response time for On-Site Interventions will only apply if the Service Extension ONSITEplus has been concluded.

RESPONSEplus: Faster Response Time

Fault Report	Monday to Friday, 08:00 to 18:00 o’clock
Time of Performance	Monday to Friday, 08:00 to 18:00 o’clock
Fault Priority Class	Emergency / SOS	Priority 1	Priority 2	Priority 3
Response Time after Fault Report	2 hours	4 hours	8 hours	Next Working day
Beginning of Remote Support within	4 hours	8 hours
If the Remote Service did not succeed, beginning of On-Site Intervention	Next Working day	Within two (2) working days

The response time for On-Site Interventions will only apply if the Service Extension ONSITEplus has been concluded.

RESPONSEpremier: Fastest Response Time

Fault Report	Monday to Friday, 08:00 to 18:00 o’clock
Time of Performance	Monday to Friday, 08:00 to 18:00 o’clock
Fault Priority Class	Emergency / SOS	Priority 1	Priority 2	Priority 3
Response Time after Fault Report	1 hour	2 hours	4 hours	8 hours
Beginning of Remote Support within	2 hours	4 hours
If the Remote Service did not succeed, beginning of On-Site Intervention	Next Working day	Within two (2) working days

The response time for On-Site Interventions will only apply if the Service Extension ONSITEplus has been concluded.

SERVICEpremier: “Around-the-clock” support

The Service Extension SERVICEpremier expands the Standard Time of Performance for incidents of incident priority class “Emergency / SOS” as follows:

Fault Report	Monday to Sunday, 00:00 to 24:00 CET
Time of Performance	Monday to Sunday, 00:00 to 24:00 CET

SERVICEpremier contains the service levels that are included in the selected CSC basic concept CSCpremier or CSCcertified. If possible, the functionality of the solution is restored by so-called workarounds or other suitable measures. Advanced R&D support, e. g. the provision of hotfixes and patches, is excluded and exclusively takes place during the Standard Time of Performance.

The Expanded Time of Performance from SERVICEpremier only applies for incidents of incident priority class “Emergency / SOS”. For all other priority classes, the Standard Time of Performance applies. Fault reports outside the Standard Time of Perfomance must be made by telephone.

If Service Extensions ONSITEplus have been ordered, On-Site Interventions will not take place within the Expanded Time of Performance but within the Standard Time of Performance.

Fault Priority Classes

Emergency / SOS:

Incident which completely impairs usage of the Subject of Agreement in its main functions

Any incident that results in loss of the recording functionality or of recording data, or - if allowed to persist - would result in such recording loss.

Any incident that results in a loss of recording control capabilities, i. e. the proper operation of the clients (CLIENTcommand, POWERplay Pro, and PHONEapp) to start and stop recordings.

Loss of the CTI connection to a PABX, loss of API interface connection when used to start and stop recordings.

Loss of connection to database.

Any incident that results in data corruption causing a failure of the solution or of a solution component to process data.

Priority 1

Incident which significantly degrades usage of the Subject of Agreement in its main functions.

Any degradation in recording capacity or functionality.

Any degradation of the system’s functionality to issue alarms.

Any incident that results in loss of the ability to search and replay recordings.

Loss of API interface connectivity (when not used to start and stop recording, e. g. for provisioning)

Any type of failover (DB, Recording, EC) or loss of a recording unit in parallel recording.

Priority 2:

Incident affecting the usage of the system functionality.

Degradation of access for routine administrative capability.

Any incident not listed above which impacts system functionality.

Priority 3:

Incident which does not impact system functionality.

A software incident which does not affect system functionality.

Any incident or request that is not captured in the previous levels.

Description of the Basic Service

ASSISTcare: ASC Hotline Support

Telephone/E-mail support during the agreed Time of Performance to assist the Partner’s or the User’s engineer in all questions relating to the product and its use, and to give advice for fixing minor problems.

by phone for calls from Germany: +49 700 2727 8776 or +49 700 ASCSUPPORT, alternatively +49 6021 8671 999

by phone for calls from outside Germany: +49 6021 8671 999

by e-mail: servicedesk@asc.de

via the web-based service request available within the protected area of the ASC Partner Portal.

REMOTEcare: ASC Remote Diagnostics & Service

Remote service during the agreed Time of Performance if this is necessary – at ASC’s discretion – for troubleshooting. An adequate remote connection (Team Viewer, VPN connection or the like) must be made available by the User to allow remote access. An ASC Support Engineer get connected only upon request by the Partner. The Partner is responsible for obtaining any approval required by the User so that ASC can perform these services.

REMOTEcare for troubleshooting, -identification and -analysis, REMOTEcare additionally contains the remote installation, or the remote installation support of the performance elements contained in the scope of this Agreement: The software patches, service packs or updates provided via UPDATEcare or SOFTcare as well as the software upgrades provided via UPGRADEcare. Remote installation or support in remote installation are restricted to default environments and stand-alone systems.

ANALYZEcare: ASC Trouble Shooting and Problem Analysis (Level 3 Service)

Based either on the findings received from Partner’s previous Level 1 & 2 Services or from ASC’s previous remote service activities (depending on the CSC Basic Concept chosen), ASC will – supported by the Partner – start an in-depth diagnosis of the problem and attempt to find either an individual problem resolution (hotfix) or an acceptable work-around. ASC will – at its discretion – provide or recommend them to the Partner or install them on their own via remote service.

UPGRADEcare: Provision of ASC Software Upgrades

“Upgrades” primarily contain major enhancements and new features – as well as bug fixes and other improvements – of ASC software products which are usually provided in combination with a new software version. However, they do not include the support for non-OEM third-party products or for a module not purchased with the original software. They neither include a new operating environment (e.g. server operating system, PBX version or network / system-side communication licenses). UPGRADEcare includes the provision of such Software Upgrades on a suitable medium (e. g. FTP access, download link).

Note: Applying a Software Upgrade may cause or require a new or modified Software License Agreement under certain conditions, which will become effective either by implicit action or a required explicit confirmation. This new or modified Software License Agreement will also come into force for the already installed software components.

UPDATEcare: Provision of ASC Software Upgrades

“Updates” primarily contain bug fixes, minor enhancements, or improvements of the ASC software, but do not contain significant new features. UPDATEcare includes the provision of software patches, service packs and updates on a suitable medium (e. g. FTP access, download link, Download-Center in ASC’s Partner Portal).

SOFTcare: Provision of Software Updates for Third-Party Software

Services according to section 0, but specifically for updates of third-party software supplied by ASC. Upgrades of third-party software are explicitly not included.

DOCUcare: Technical Documentation

ASC periodically provides technical documentation in electronic form. User manuals and installation manuals are part of the version release and will be updated accordingly.

Description of Service Extensions (add-on packages)

ONSITEplus: On-Site Service

These activities include fault diagnosis and troubleshooting on site which will be carried out by an ASC Support Engineer, or a service organization authorized by ASC. If required, the tasks include the exchange of assembly groups and installation of software.

Note: Spare parts will be provided free of charge, if REPAIRplus has been ordered.

REPAIRplus: Spare Parts / Hardware Repair Service

Units, assembly groups, or components identified as faulty will be replaced or repaired either on-site or via ASC’s Service Center. In the latter case, assembly groups must be sent to ASC at the Partner’s expense in compliance with the valid RMA process. Replaced or repaired units, assembly groups, or components will be returned to the Partner or User at ASC’s expense. ASC reserves its right to deliver equivalent or higher-value replacement if the original components are no longer available.

Note: Spare parts will only be repaired or exchanged on-site, if ONSITEplus has been ordered.

RECOVERpremier:

RECOVERpremier: Recovery service for systems which have been installed on a dedicated hardware.

The Service Extension RECOVERpremier provides a guaranteed recovery within twenty-four (24) hours on twenty-four (24) hours per day and on seven (7) days per week.

Contractual precondition is that for each deployed architecture element (e. g. Enterprise Core, database, recording module, recording control) a backup system, supplied by the User, is maintained in full operational condition, and kept ready-to-use at the equipment location. Furthermore, the User must create backups of the database and the configuration data; please refer to the installation manual “Backup and Disaster Recovery”. If this is not the case, the guaranteed recovery time cannot be guaranteed.

The backup system contains a software and configuration status from the productive system accepted by the User, which has been transferred to the backup system by an ASC Support Engineer and kept unchanged since then. It is prohibited to put the backup system into operation except for maintenance purposes or in case of a failure. The recovery includes re-commissioning of the software on the latest status accepted or backed-up by the User, but explicitly excludes recovery of any recordings or operating data.

Note: RECOVERpremier contains RESPONSEpremier and SERVICEpremier.

RECOVERpremier: Recovery service for systems which have been installed in a virtual environment.

The Service Extension RECOVERpremier provides a guaranteed recovery within twenty-four (24) hours on twenty-four (24) hours per day and on seven (7) days per week.

Recovery takes place on basis of the latest saved snapshots of the overall system. The obligation to create snapshots including defining an adequate frequency lies with the User. Due to load reasons ASC recommends creating snapshots off the operating hours and additionally references to the installation manual “Software updates”.

If no snapshot is available, the guaranteed recovery time cannot be guaranteed. The recovery includes re-commissioning of the software on the latest status accepted or backed-up by the User, but explicitly excludes recovery of any recordings or operating data.

Note: RECOVERpremier contains RESPONSEpremier and SERVICEpremier.

Other Services

In addition to the basic services and Service Extensions mentioned above, the provision of further services may be agreed between ASC and the Partner; a written order by the Partner and an order confirmation by ASC are required for this purpose. At no time shall ASC be subject to any obligation deriving from this Agreement to accept a corresponding order from the Partner. The scope and form of the ordered services shall be recorded in a Service Agreement; however, Times of Performance including Response Times are always non-binding and depend on the availability of the relevant resources; the time of execution shall therefore be at the discretion of ASC and without any warranty whatsoever. These services will be invoiced depending on time and material expenditure on the basis of ASC’s rates applicable at the Time of Performance.

The following is an overview of Other Services that are not included in this Agreement, but for which performance can be agreed in accordance with the aforesaid for a separate charge:

Services or service elements, which

are not expressly performance elements of this Agreement.

possibly correspond to the content of this Agreement but were not explicitly ordered upon conclusion of this Agreement.

fall outside the agreed Time of Performance and Response Time; or

in case of CSCcertified could have been provided by a certified Partner without further queries or consultation, according to reasonable discretion.

Trouble Shooting of the Subject of Agreement, including any hardware and software components included therein which have been damaged by external causes and influences such as

negligence, improper handling, unauthorized interference, or improper usage.

unauthorized programming or the unapproved use of firmware and software.

use of material or equipment that does not comply with the ASC specifications; or

Breach of duty by the Partner or User during maintenance of the Subject of Agreement according to ASC specifications.

Customer-specific software developments or adaptions (e. g. Professional Services).

Performance of software updates/upgrades, if these are requested by the Partner without any objective necessity like troubleshooting.

System enhancements, expansions, changes, or relocations (so-called Move/Add/Change (MAC) activities), migrations outside the regular upgrade path or to a new system platform, as well as data recovery.

Availability for and support or implementation of regular or unscheduled tests or other actions in the IT infrastructure in connection with the Subject of Agreement (e. g. disaster recovery test, patch days).

Scope and Framework of this Agreement

At the time of the initial installation and commissioning, the requirements of the ASC software on the underlying ICT infrastructure (e.g., operating system, databases or other non-ASC software, hardware layout or functionality, memory or storage capacity, CPU or overall system performance, other characteristic computing parameters) are typically fulfilled. Subsequent software updates or upgrades might increase or change these requirements, though. Any direct or indirect effort resulting therefrom, such as system enhancements, retrofitting, conversions, or migrations of the ICT infrastructure, is explicitly not subject of this Agreement, and is in all respects excluded from ASC’s obligations under this Agreement.

ASC ensures proper functioning of its products under the following conditions:

Compliance with requirements defined by ASC – described in section 14.1 – for the initial installation and configuration, and for subsequent updates or upgrades.

Observance of the underlying ICT infrastructure version specified by ASC.

Guaranteeing the operability of the underlying ICT infrastructure (see also section 14.5).

Supplemental to the ASC Maintenance Policy according to section 14.7, ASC may advise the User for compatibility reasons to retain a certain version, to install and then retain a specific version or to keep the software up to date. In addition, ASC reserves the right to fix potential bugs by providing a Software Update or Upgrade instead of modifying the existing version.

Note: In the case of CSCcertified as the selected base concept, the performance of such software update or upgrade is not part of this Agreement and would be charged by ASC unless performed independently by Partner.

ASC will dismiss all User claims resulting from a violation of the conditions mentioned above.

Limitations of the functionality or operability can arise – as described in section 21 – due to acts or omissions of third-party manufacturers or license holders for the required software that are beyond the control of ASC. User claims resulting therefrom will be rejected by ASC.

ASC reserves the right to change or remove certain functionalities in future software updates or upgrades. ASC does not guarantee that functionalities included in previous software versions are preserved or maintained in future ones and refuses any User claim resulting therefrom.

All modifications in the ASC software caused by an unauthorized change of the ITC infrastructure; carrying out a modification or conversion; attaching or using devices not delivered by ASC; as well as the support of devices not supplied by ASC but connected to the same network, are not part of this Agreement and expressly excluded from ASC’s obligations derived therefrom.

Technical support for hardware provided by the customer is not part of this Agreement; the Partner is required to conclude an accompanying maintenance agreement on its own initiative for this hardware. The hardware delivered by ASC is only supported if the Service Extension REPAIRplus has been ordered.

Three-Strike Policy

To keep an overview of the tickets, it is necessary to obtain feedback from the partner in a timely manner. Often, delays occur due to missing feedback about open tickets. Therefore, ASC uses the so-called three-strike policy. The Partner will receive two reminders asking for the required information withing the following deadlines.

Two reminders elapsed time	Emergency / SOS	Priority 1	Priority 2	Priority 3
Incident	Via e-mail / phone immediately	3 days	5 days	10 days

If there is no reply to the second reminder, the third measure will be to close the ticket on the following working day.

Software Maintenance Policy

Keeping the landscape of deployed software versions as homogeneous as possible by consistently updating the installed base helps to improve the security, performance and user experience and ensures that our Partners and Users keep pace with constantly changing technological requirements. For this reason, software maintenance at ASC is subject to the following rules:

ASC provides software maintenance for the current and last main version until the release of the second last main version as follows:

For the current main version (N), ASC creates minor versions (N.x) as required.

ASC targets to create custom hotfixes for the current and the last main version (N and N-1), if required. However, it is ASC’s discretion to decide based on technical feasibility, for which version a custom hotfix will be produced. If an existing software error has already been corrected in a newer version of the ASC software, ASC shall make this newer software version available to the Partner or User. It is then the responsibility of the Partner or User to upgrade or update their ASC software accordingly.

ASC does not provide software maintenance for any older software versions (N-2 and earlier), i.e. ASC does not create minor or correction versions or custom hotfixes, nor are fault reports for these software versions analyzed by ASC. Such older software versions can, in principle, continue to be supported within the framework of a CSC contract, subject to individual agreement and additional charges; however, ASC strongly recommends that the ASC software is always kept up to date.

Responsibilities of the Partner

The Partner is obliged to conscientious performance of its obligations under this Agreement without causing ASC any costs. This includes the necessary availability, activities and arrangements to help ASC fulfill its obligations in an appropriate and efficient manner throughout the entire duration of this Agreement.

Prior to initial installation and the commissioning of the Subject of Agreement, the Partner is obliged to provide a proper remote maintenance option in terms of available bandwidth, stability, and sufficient temporary/functional range of usage, and without causing any costs for ASC. A remote connection is an indispensable precondition for ASC to fulfill all its obligations under this Agreement, especially in terms of processing incidents, debugging and the elimination of errors. The Partner indemnifies ASC against all claims arising from occurring incidents until a proper remote connection is provided and established. Time limits defined within this Agreement will be suspended until then.

Partner’s special obligations to cooperate:

Upon the beginning of this Agreement, the Partner provides ASC – according to ASC’s specifications – with detailed written information, including all required data to fulfill the required service tasks. This information must be supplemented, if requested by ASC, and kept up to date during the entire duration of the Agreement.

The Partner reports all changes in the hardware and software environment which may impact the executed services to ASC uncalled for and in time.

The Partner accepts and pre-qualifies the incident reports and hands them over to ASC with sufficiently informative descriptions of the incident and errors – upon request also in writing. The Partner provides ASC with the required log files as well as upon request with the required debugging documents (e. g. protocols, log files, and test data) free of charge.

The Partner grants ASC’s support engineers unrestricted access to hardware and software as well as to diagnostic programs, documentations, user programs and other required data to perform the necessary services.

The Partner must ensure, upon request from ASC, that an authorized own representative is available on site during the entire duration of the Remote Support or On-Site Intervention. The Partner also needs to nominate a responsible contact person who is in the position to make binding decisions or effectuate them without delay.

Regular maintenance of the Subject of Agreement as well as of the infrastructure required for its operation in accordance with the requirements of ASC and additional instructions given by ASC's Support Engineers.

Regular backup of recordings and operating data as well as of the most recently approved software and configuration state.

Compliance with the applicable procedures for reporting incidents and support requests to ASC.

The Partner is obliged - as the operator of the platform - to monitor the full functionality of the Subject of Agreement. He must ensure that system messages from the platform are analyzed and processed, and that the User / operator / end customer is informed of any malfunctions.

For CSCcertified: The Partner provides enough qualified technicians locally in accordance with ASC’s request or, should the Subject of Agreement be spread over more than one location, in the respective area. These technicians will be trained and certified by ASC on the Partner’s expense. ASC reserves the right to verify the Partner’s compliance with these requirements. If necessary, ASC will offer additional trainings to keep the Partner’s technicians at the required level, so that the Partner can fulfill its obligations under this Agreement. If required follow-up trainings or recertifications are not participated in time, ASC reserves the right to change the Agreement CSCcertified to CSCpremier under the correspondingly applicable conditions to cover all services for the User.

The Partner is responsible to provide the following Level 1 & 2 Services:

Hotline support and handling User inquiries (“first customer contact”)

during usual business hours in the User’s specific time zone.

Remote service during usual business hours in the User’s specific time zone.

Troubleshooting and provision of error messages and log files.

Remedy of errors by installing new Software Updates and Upgrades.

Installation of software updates or upgrades at the User’s place.

Escalation to ASC Level 3 Service in case the issue cannot be fixed otherwise.

In addition, the Partner should provide the following services:

On-site support, if an issue cannot be fixed by remote Level 1 & 2 Services. On-site support should only be performed by ASC-certified technicians; their tasks include – not listed conclusively – on-site diagnostics/troubleshooting, correction of configuration data, applying hotfixes released by ASC, and exchanging identified faulty components.

All activities of Level 1 & 2 Services must be documented in the ASC incident-tracking tool if requested by ASC.

Incidents which could not be resolved by the Partner’s Level 1 & 2 Service must be reported to ASC’s Level 3 Service within the agreed Time of Performance. The report must include a sufficiently precise description of the incident as well as a detailed documentation of all measures undertaken so far.

ASC provides the following means of communication to the Partner for escalation reporting:

By phone: +49 700 2727 8776 or +49 700 ASCSUPPORT

by e-mail: servicedesk@asc.de

via the web-based service request available within the protected area of the ASC Partner Portal.

In case the Partner fails to meet any of its responsibilities, including deficiencies in the proper and professional execution of its services, ASC shall be released from all contractual obligations and liability. The Partner hereby accepts its obligation to include this limitation of liability for ASC in all its Service Agreements with the User.

Data protection and data security according to the European General Data Protection Regulation (GDPR)

Processing data

In order to perform any kind of required installation / maintenance / repair services – irrespective of whether included within this Agreement or ordered separately – it might be required that ASC has to process (personal) customer data (system-related data as well as configuration and recording data, also as part of so-called log files).

Any processing takes place exclusively on basis of Regulation (EU) 2016/679 of 27th April 2016 (General Data Protection Regulation, short GDPR) as well as of German Federal Data Protection Act Bundesdatenschutzgesetz of 30th June 2017 (BGBI. I S. 2097) and requires the previous conclusion of an agreement on data processing according to art. 28 GDPR as specified by ASC.

The User or Partner ensures and confirms herewith, that the customer data will have been backed-up before ASC starts its activities; that any operational, commercial or legal risk is excluded in case of the deletion of data; and that in case of a possible deletion of data, resultant claims against ASC, its employees, or its data processors are excluded.

Transport of Data /Data Storage Media

ASC explicitly points out that the transport of data or data storage media constitute a potential risk, as data may be damaged, lost or fall into wrong hands during transport. As data storage media may contain confidential, personal, or otherwise sensitive data, ASC uses data encryption to avoid their unauthorized use as far as possible. The Data Controller within the meaning of data protection law - usually the User, but never ASC - must ensure appropriate technical and organizational measures for the transport (freight or data transmission).

During repair / reconstruction of data storage media, it may be necessary that ASC passes data to GDPR-compliant cooperation partners (Data Processors) for further processing. If it should be impossible to reconstruct a data storage medium, the Data Controller must issue an instruction on how to treat these data storage media (e. g. returning them or chargeable destruction according to DIN 66399).

Data security in relation to software adaptations to be carried out.

Within the context of service interventions and the associated intervention into the Subject of Agreement, it is possible that data content may be overwritten or deleted. It cannot be excluded that the overwriting or deletion of data may also affect existing (i. e. already saved) recordings. There is also the technically unavoidable chance that the recording function will not be available or only partly available during the system intervention, i. e. that recordings during this period will therefore not take place reliably.

The Partner hereby declares that:

the service intervention is an instruction in the sense of art. 28 para. 3 (a) GDPR that the Partner as the Data Controller is authorized for or that it issues on behalf of the Data Controller on basis of its explicit and documented approval.

a complete and restorable backup of the system - but at least of all GDPR-relevant data - will be available by the start of the service intervention.

the Partner is fully and unconditionally liable for any claims for damages which may arise from this instruction; and

the Partner indemnifies and holds ASC harmless from and against any liability for the service intervention as well as possible own or third-party claims. This also applies to possible sanctions by supervisory authorities.

Ownership of Proprietary Data and Software

All modifications, enhancements or customizations to ASC proprietary software, associated documentation, and other performances of ASC provided to Partner in connection with the services provided hereunder, including but not limited to any object code, source code, flowcharts, documentation and any other materials developed under this Agreement and any modifications or enhancements thereto as well as all applicable patents, copyrights, trademarks and trade secrets including translations, compilations, partial copies with modifications and derived works are and shall remain the sole and exclusive property of ASC, and title thereto is and shall remain in ASC. The Partner shall neither use such information nor disclose it to third parties except for the purpose of rendering services to the User. The same aforesaid restrictions, where applicable, apply to any third-party software provided by ASC.

Employees

It is expressly agreed that ASC and Partner are acting hereunder as independent contractors and under no circumstances shall any of the employees of one Party be deemed to be the employees of the other for any purpose. This Agreement shall not be construed as authority for either Party to act for the other Party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other except to the extent and for the purposes expressly provided for and set forth herein. ASC employees and subcontractors shall be governed by ASC’s employment policies, rules, and regulations, but shall observe the Partner’s or User’s hours, rules and policies while on the Partner’s or User’s premises.

Warranty

ASC represents to the Partner that all services of this Agreement will be provided in the best possible manner. The warranty set forth in this Agreement is a limited warranty and it is the only warranty made by ASC. ASC expressly disclaims all other warranties expressed or implied, including warranties of merchantability and fitness for a particular purpose. ASC does not warrant that the services will meet the Partner’s or User’s requirements or will be uninterrupted or error-free, or those errors will be corrected. ASC’s limited warranty is in lieu of all liabilities or obligations of ASC for damages arising out of or in connection with the services provided under this Agreement.

ASC shall bear no responsibility for correcting, curing, or otherwise remedying any non-conformity or defect in the Subject of Agreement or any other breach with respect of the condition or operation of the Subject of Agreement, if:

the Subject of Agreement is not maintained and operated under regular conditions by qualified personnel.

the Subject of Agreement incorporates spare or replacement parts other than those purchased from or authorized by ASC;

the Subject of Agreement has been altered, abused, misused, or dismantled.

the User employs the Subject of Agreement in connection with components, parts, programs or equipment which are unauthorized or not recommended by ASC;

the non-conformity or defect or other breach with respect to the condition or operation of the Subject of Agreement has arisen because of damage to the Subject of Agreement occurring subsequent to delivery thereof to the Equipment Location to the User; including “acts of God”, unless, in any such case, such event or condition directly results from the fault or negligence of ASC; or

the non-conformity or defect or other breach with respect to the condition or operation of the Subject of Agreement has not been reported to ASC within thirty (30) days before termination of the foregoing warranty period.

Limitation of Liability

Unless otherwise provided by law, ASC shall not be liable for any direct or indirect damages (damages to property or personal injury, financial or immaterial damages, downtimes, loss of income, anticipated profits or business opportunities of the Partner or third parties) or consequential damages arising from or related to any installed base or due to the delivery of any services agreed upon within this Agreement. This Limitation of Liability extends to third parties which have been commissioned by ASC to perform the services defined within this Agreement.

Force Majeure

ASC shall not be responsible for any delays or failures in performance resulting from acts or omissions of third parties including suppliers of equipment, licensees of third-party software or suppliers of maintenance services.

If circumstances of force majeure occur, the Parties shall be exempt from fulfilling their obligations under this Agreement. The Parties shall inform each other – immediately and in writing – about the occurrence of a circumstance of force majeure.

Examples of force majeure are war, pandemics, epidemics, strikes, riots, expropriations, significant changes in legislation, supranational/legal export, sanction or embargo regulations, storms, floods and other natural disasters as well as other circumstances beyond the control of the parties, in particular fire, water ingress, power failures and interruptions of lines for electricity or data transmission.

Adjustment of the contract fee

ASC may adjust the contract fee following the initial term to the then applicable fees and will notify the Partner of this price adjustment by October 31st of the current year, effective for all contract changes from January 1st of the following year. The upper limit for annual price adjustments is based on the - in the case of multi-year contracts cumulative - consumer price index for Germany plus a maximum of three percent (3%).

Duration of Agreement

The Agreement will automatically extend for another twelve (12) months after the initial contract period according to section 4, unless canceled by either of both parties with a minimum of ninety (90) days prior to its expiration. If not cancelled in due time, ASC will charge the Partner the then applicable service fee.

If the Partner fails to remit the contract fees to ASC by their due date, ASC’s obligations to the Partner under the terms of this Agreement cease immediately.

This Agreement – as all Software Maintenance Agreements or comparable Service Contracts in the industry – may only stay in force without interruption. However, if this Agreement has been canceled as described in section 23.1 or has expired due to any other legal reason, ASC reserves the right to charge a fee for its reinstatement. This fee will contain all overdue contract fees since the end of the contract as well as the extension for at least another year.

If the Partner fails to meet the obligations as described under section 15, ASC may terminate this Agreement immediately.

ASC may choose not to extend the Agreement beyond the agreed date at its own discretion.

ASC is entitled to cancel the Agreement with immediate effect, if the:

Subject of Agreement becomes non-maintainable due to external influences.

operating status of the Subject of Agreement has been interfered with or altered by persons unauthorized by ASC;

Partner infringes ASC’s intellectual property or any other of its protected rights; or

the fulfillment of the Agreement violates a legal prohibition under applicable German legislation, or binding regulations under international law such as EU sanctions or UN resolutions.

If ASC fails to perform the agreed services or does not meet the related quality standards, and if this violation is significant, the Partner is entitled to premature termination of the Agreement. Prior to such termination, the Partner must prompt ASC in writing, including the threat of termination, to provide the agreed services within a suitable grace period of at least three (3) weeks. Termination of the Agreement must be in writing as well.

Please note that ASC does not offer on-demand support if no active Service Contract exists.

Miscellaneous

Neither Party may assign its rights or obligations under this Agreement to any other Party except that ASC may assign its rights or obligations under this Agreement to its subsidiaries, affiliates, representatives, authorized service providers or other subcontractors, or the surviving entity of a merger or consolidation involving such Party. Each such assignee shall fulfill ASC’s obligations under this Agreement.

Any notice or other communication required to be given hereunder will be in writing, addressed to the parties appearing in this Agreement, and shall be deemed to have been sufficiently given or served for all purposes ten (10) business days after being mailed by prepaid registered mail, or one (1) business day after being transmitted by facsimile, or delivered in person.

If any provision of this Agreement becomes ineffective, incomplete, or unenforceable under applicable law, this will not affect the remaining content of the Agreement; the ineffective provision shall be replaced by an enforceable provision to the same or nearest possible equivalent effect.

The terms and conditions herein – along with the ‘Business Partner Agreement (if applicable), the ‘ASC Lifecycle Policy’ and the ‘License Agreement for ASC Software Products’ in its latest version – constitute the entire agreement between the parties, govern the parties’ obligations relating to the services provided hereunder and supersede any and all other agreements, oral or written, relating to such subject matter that may have been entered into between the parties prior to the date of this Agreement. To the extent there is a conflict between this Agreement and other ASC documentation, the terms of this Agreement shall govern.

This Agreement shall be governed by, and construed in accordance with, the laws of Germany. Place of jurisdiction is Aschaffenburg.