General Terms and Conditions

General terms and conditions for service contracts provided by NEXT Data Service AG

1       Scope of the Contract Terms

1.1    The General Terms and Conditions (hereinafter to as GTC) apply to all contractual relationship in which NEXT Data Service AG provides Services to contractual partners.

1.2    NEXT Data Servuce AG shall hereinafter be referred to as “NEXT”, NEXT’s contractual Partner as “Customer”and both together as “the Parties”.

1.3    „Services“ in Terms of Clause 1 No. 1.1 of this GTC are agreed in the contracts between NEXT and the customer.

1.4    Unless otherwise agreed, this CTC applies exclusively. In other words, conflicting and/or additional terms – in particular the customer’s GTC – shall not apply, even if the customer has referred to them and NEXT has not expressly objected to such conditions.

2       Contract Initiation and Conclusion of Contracts

2.1    Unless otherwise agreed in writing, NEXT provides services exclusively based on the respective offer or contract in Connection with this GTC. The provisions of the concluded contracts shall take precendence over this GTC.

2.2    If NEXT develops concepts, plans, proposals, test programs, presentations, etc. for the customer within the framework of the initiation of a contract, these shall remain the intellectual property of NEXT. NEXT’s services within the framework of pre-contractual obligations shall also be subject to this GTC.

3       Scope and Execution of Services

3.1    NEXT’s services are based the conditions specified in the contract and payment shall be provided as agreed in the respective contract. The scope of the Services is specified in the binding Service description (Enclosure 1 of the contract)

3.2    The NEXT employees assigned to the provision of services are exclusively subject to NEXT’s authority to issue instructions. The customer may only give technical instructions regarding the execution of the contract to the respective project manager or manager from NEXT. NEXT employees will not be integrated into the customer’s company. NEXT determines the composition of its own team of employees. NEXT may recall or replace individuall members of the team, provided that this does not result in any fundamental changes and the purpose of the contract is not adversely affected.

3.3    With the customer’s consent, NEXT may use subcontractors of its own choice for the provision of services.

4       The Customer’s Duty to Cooperate

4.1    The customer will adequately support NEXT in the provision of the contractual services. In particular, he will provide NEXT with the necessary staff as well as the necessary information, data and documents in a complete and timely manner and, in the case of work at the customer’s premises, with the necessary space and technical equipment. Any additional cooperation services will require a separate agreement in the contract.

4.2    The customer must ensure proper and regularly occurring data backups.

4.3    If the parties have not agrees otherwise, the customer shall procure any necessary third party products himself (in particual hardware and software) for the proper provision of services by NEXT.

5       Period of Performance

5.1    Performance dates and deadlines are only binding if the parties have specifically indicated that they are binding in the respective contract.

5.2    In the event of unforeseen events beyond the control of NEXT, such as force majeure or export and import bans, the performance period will be extended by a reasonable period. The same will apply if such circumstances take place for a NEXT subcontractor.

5.3    Events that fall under Clause 5, No 5.2 of this GTC will be deemed equivalent to strikes, lock-outs, official interventions or similar circumstances through no fault of their own.

5.4    NEXT shall only be obliged to comply with a bindingly agreed period of performance if the customer has fulfilled its obligations to cooperate (that were requested by NEXT with reasonable advance notice) are fullfiled. If the customer violates his duties to cooperate, the parties are obliged to agree to new performance dates, taking into account NEXT’s resource planning.The customer is obliged to compensate NEXT for any disadvantages and additional costs incurred by NEXT, as a result of the breach of ist dury to cooperate. NEXT shall make a request to the customer in writing, Setting a reasonable Deadline, to make up for or rectify the obligation to cooperate. If this period expires unsucccessfully, NEXT shall be entitled to terminate the agreement under extraordinary circumstances without notice, provided that NEXT has previously notified the customer of this intent in writing. The enforcement of further rights to which NEXT is entitled shall remain unaffected by the aforementioned provisions.

6       Change Management/ Change Requests

6.1    During the course of a project, the parties may propose changes or additions to the contractually agreed services, deadlines and methods in writing (hereinafter: change request). A change request can also be made in the form of an email.

6.2    NEXT will review the customer’s Change request for feasibility, effects of time and costs within 5 (five) working days of its receipt. The customer will accept or reject the result of the change request check in writing within 5 (five) working days. The customer’s change request shall extend the period of performance by a reasonable amount. The customer shall pay for the Review of a Change request submitted by the customer according to the currently effective prices stated in the contract.

6.3   If NEXT requests a change request, the customer will inform NEXT in writing within 5( (five) working days whether he agrees to this. NEXT may changes the design, structure and form of the agreed services without a change request, provided that this does not result in any fundamental changes and the purpose of the contract is not significantly adversely affected.

6.4    Until a change request is agreed upon, NEXT is entitled and obliged to provide the services according to the existing contract.

7       Compensation

7.1    Compensation and prices are agreed upon in the contract. The prices shall only be deemed fixed or lump sum prices if they are expressly indicated as such in writing.

7.2    Compensation for services within the scope of service and maintenance contracts shall be made in monthly lump sums, which shall be payable quarterly per calendar year, in advance without deduction.

7.3    Invoices are due for payment after invoicing and are payable without deduction within 8 (eight) days of the invoice date.

7.4    Incidental expenses, travel time, travel and accommodation expenses shall be reimbursed separately according to actual expenditure. Travel times are periods of performance.

7.5    In the case of cross-border deliveries or services, the handling of import or export shall be the sole responsibility of the customer, unless the parties have agreed otherwise. The customer shall bear any customs duties, fees and other charges incurred.

7.6    The customer may only Offset claims by NEXT against legally established or undisputed claims. The customer may not assert a right of retention based on another contractual relationship with NEXT.

8       Retention of Title/ License Retention

8.1    If NEXT delivers services to the customer based on a contractual agreement, the services shall remain the property of NEXT until full payment has been made for them.

8.2    The rigth to use software is only granted upon full payment of the unterlying license fees by the customer (license retention). In the event of default in payment by the customer, the granted right of use shall be suspended.

8.3    In the event of seizure, confiscation or other dispositions by third parties, the customer is obliged to point out NEXT’s ownership immediately. Furthermore, the customer is obliged to inform NEXT immediately in writing of the seizure or access.

9       Delivery and Acceptance of Service

9.1    The risk of accidental loss shall be passed onto the customer upon handover.

9.2    NEXT may demand a declaration of acceptance from the customer for all of the services available in the acceptance. For this purpose, the parties must draw up a jointly signed acceptance protocol. Partial acceptance for partial, services is possiple at any time.

9.3    Training, consulting, support, service and maintenance deliverables are not subject to acceptance. They must be performed upon execution.

9.4    NEXT will deliver concepts, schedules, specifications, presentations, user documentation and similar documents to the customer for verification of contract compliance. The customer must notify NEXT in writing of any need to improve these documents within a period of 5 (five) working days. The revised documents shall then be deemed to have been produced in accordance with the contract upon delivery.

9.5    The customer will check the comformity of work and service with the contract. The customer will declare acceptance of the services if the services meet the contractually agreed upon quality under pre-determined assumptions and prerequisites, and if there are only insignificant deviations from the agreed upon quality. NEXT is entitled to be present during the customer’s acceptance testing. Unless otherwise agreed in writing, the customer’s testing period will be 2 (two) weeks from the time NEXT provides services. The services will be deemed accepted, unless the usability of the service is significantly restrivted due to defects, for an addtional period of 2 (two) weeks after the testing period expires. Advance written notification must be made to inform of these defects. NEXT’s services are deemed to be accepted if the customer uses NEXT services for 4 (four) weeks productively without any defects.

10     Disruption of Services and Guarantee

10.1  NEXT ensures professional and thorough provision of services through qualified personnel. For the contractually agreed quality, the description of services contained in the contract or the performance description is conclusively relevant. If a quality is not agreed upon, it shall be determined based on its suitability for the use presumed in the contract. Otherwise it will be based on the usual use to be expected by the customer. NEXT points out that, according to the current state of the art, it is generally not reasonably possible to create software that is completely free of errors.

10.2  The customer is obliged to examine the work results without delay and report any defects immediately and comprehensibly in writing, stating precisely the Information neccessary to remedy them. The customer is obliged to Support NEST within a reasonable scope in correctiong the defects.

10.3  NEXT is entitled to repair or replace the defective parts at ist own discretion and free of charge in the event of performance defects. In regard to software services, NEXT can also fulfill ist obligation to correct defects by providing the customer with a new version of the program. The customer must adopt a new Software version if the functional scope is maintained according to the contract and the adoption is not unreasonable. As long as it is possible and reasonable for the customer, NEXT may provide the customer with a circumvention measure until the defect has been remedied by replacement delivery, the customer may demand an appropriate reduction of compensation for the defective part, withdraw from the contract, or terminate a continuing obligation. Subsequent improvements or replacement deliveries are deemed to have failed definitively after three attempts. Extended Deadlines granted by the customer have to be reasonable. Damage claims are governed exclusively by Clause 12 (Liability) of this GTC.

10.4  In case of rent, NEXT shall only be liable for defects that already existed at the time the contract was concluded, if NEXT is at fault in this respect.

10.5  If the defects that hace occured are attributable to circumstances for which NEXT is not responsible, the defect rights shall lapse. This for example applies to the purchase of used IT systems or if the customer uses unsuitable hardware or does not comply with installation requirements or makes changes or has changes made to software without NEXT’s knowledge unless the customer proves that the changes are not the cause of the defect,

10.6  Defect claims fall under the statute of limitations twelve months after delivery or acceptance of the contractual services.

10.7  If an analysis shows that the customer has no claim to rectification or replacement, NEXT shall be entitled to charge the expenses incurred based on time and material of the existing contract.

11     Third Party Rights

11.1  If a third party asserts to the customer that a service provided by NEXT infringes upon industrial property rights and/or copyrights, the customer is obliged to notify NEXT of this immediately in writing. In the event of a legal dispute, the customer shall coordinate the defense with NEXT.

11.2  If NEXT assumes sole defense in agreement with the customer, NEXT alone shall decide on an out-of-court settlement or the further conduct of the case or termination of the legal dispute. The customer is obliged to provide NEXT with all information necessary for a reasonable defense that is accessible to the customer and to support NEXT appropriately.

11.3  In the event of a proven infringement of industrial property rights and/or copyrights, NEXT will, at ist own discretion and expense, procure the necessary rights to use the service for the customer, or exchange, modify or design the same without infringement of rights. If this is not possible under economically reasonable conditions, NEXT shall take back the service and reimburse the customer for the compensation paid for it (less a reasonable usage fee). In addition, NEXT shall indemnify the customer against all claims for damages and legal costs arising from the infringement of third-party industrial property rigths. In the event of slight negligence, NEXT shall not be liable for any settlement amounts paid to third parties or comparable concessions or other damages. This will not apply if NEXT has given prior written consent to the third-party Settlement agreement or concession.

11.4  NEXT shall not be liable for any infringement of industrial property rights or copyrights if this infringement is due to changes in the results of the services of which NEXT is not responsible and which were not carried out or authorized by NEXT, either partially or entirely. Furthermore, NEXT shall not be liable for any infringement of intellectual property rights resulting from any use that is not contractually stipulated for the results of the services in question.

12     Liability

12.1  NEXT will always be liable without limitation in full for personal injury (injury to life, body and health) as well as for damage caused intentionally or through gross negligence, and in the event of liability in accordance with the Product Liability Act. This also includes unlimited liability for fraudulently concealed defects or the absence of a quality for which NEXT has assumed a guarantee, or the grossly negligent breach of a material contractual obligation. Essential contractual obligations are obligations whose fulfilment and compliance to is essential for the proper performance of the contract, on which the customer may regularly rely. The statutory limitation periods shall apply.

12.2  In all other cases of slight negligence, NEXT’s liability will always be limited to the typical foreseeable damage and will amount to up to EUR 500,000 per claim for property damage, but not more than total of EUR 1.0 milion per contract, and up to 10% of the total compensation for the contract for financial losses. Liability for financial loss shall be limited to a total of EUR 500,000 per contract. This shall not apply to the breach of material contractual obligations for which unlimited liability is assumed in accordance with Clause 12, No. 12.1 of this GTC.

12.3  Liability for consequential and indirect damage such as loss of profit, damage due to business interruption or lack of savings is excluded.

12.4  NEXT shall only be liable for the loss of stored data if the customer has ensured that this data can be reconstructed at a reasonable cost by means of property performed data backups. The liability is limited to the amount of the restoration effort.

12.5  Claims for damages and reimbursement of expenses fall under the statute of limitations within one year of delivery or acceptance or provision of the last service.

12.6  If NEXT is obliged by a separate written agreement to pay the customer a contractual penalty or a comparable lump-sum compensation, these payment obligations shall be offset against the agreed limitation or liability pursuant to Clause 12 No. 12.2 of this GTC.

12.7  Guarantees, quality assurence or other assurances must be expressly designated as “quality assurances”, “characteristic assurances”, “guarantees” or “guarantee declarations.”

12.8  These liability provisions will apply to all claims for damages and the reimbursement of expenses, irrespective of their legal Basis, including pre-contractual and collateral claims.

13     Usage Rights

13.1  The customer will be granted an irrevocable, unlimited, non-transferable, non-exclusive right to use for the work results produced by NEXT within the scope of the contractual obligation.

13.2  The customer my not modify any software provided for use, in particular for test purposes. In principle, NEXT supplies software as object code. Even partial conversion into source code by the customer is not permitted. Unless the parties have contractually agreed otherwise, NEXT is not obliged to deliver the source code.

13.3  The customer has the right to use the sofrware on the IT System that is specified in the contract or that is approved by NEXT for the maximum number of specified users. If the IT system is not operational, the customer may use it temporarily on another IT system.

13.4  Upon termination of the right of use, the customer is obliged to return the original software storage devices and all copies thereof to NEXT or to permanently destroy them and, upon request, confirm this in writing to NEXT.

13.5  The customer may resell copies of purchased software to a third party if the customer waives further use of the software and the third party takes measures to protect the software in writing to NEXT and recognizes the limits of the right of use as they exist for the customer. The customer may only rent the rented software to others with NEXT’s consent.

14     Confidentiality and Data Protection

14.1  The parties are obliged to use all knowledge of business and trade secrets and processes that are designated as confidential and acquired within the framework of the contractual relationship, only for the purpose of processing the respective contract, to treat them as confidential for an unlimited period of time and not to pass them on to third parties. This does not apply to ideas, concepts, know-how, techniques and data that were already generally known to the parties or are known or will become known. Employees of the parties who are professionally bound to secrecy shall not be regarded as third parties within the terms of this provision.

14.2  The parties shall observe the data protection regulations, in particular, for the performance of service, they will only use persons who are obligated to handle personal data confidentially in writing.

If NEXT processes personal data during the execution of a contract, NEXT will act on behalf of the customer in accordance to Clause 28 Para. 3 DSGVO. For this purpose, the parties shall conclude a separate contract for processing data.

14.3  The customer agrees that NEXTwill process the customer’s data required for Business transactions in compliance with data protection regulations.

15     Permission to Use as a Reference

NEXT is entitled to publicly name the activity that was conducted for the customer in business transactions as a reference.

16     Terma and Termination

16.1  Continuing obligations are concluded for the term agreed in the individual contract. If a term is not expressly agreed upon, a maximum contract term of two years shall take effect. If the parties do not terminate the contract, the contract shall be tecitly extended for another year at the end of the agreed term. Contracts for rent or leasing are excluded from this provision.

16.2  Continuous obligations,, in particular service and maintenance contracts, can only be terminated prior to expiration of the agreed term by observing a period of notice of 30 calendar days, if one party contravenes an essential agreement of the contract and fails to remedy the contravention within a period, which should not normally be less than 20 calendar days following a written reminder from the other party. This does not apply to rental or leasing contracts, for which a separate right of termination that is agreed upon, applies in the contract.

16.3  In the event of termination, NEXT retains the right to compensation for all services rendered until the Termination becomes effective.

16.4  The right to terminate for good cause in accordance with § 314 BGB remains unaffected.

16.5  Each party shall also be entitled to terminate a contract if insolvency proceedings are opened against the other party or if insolvency proceedings are rejected for lack of assets or if the other party gives up ist business, conducts business outside insolvency or is no longer able to meet its payment obligations under this contract.

17     Severability clause

Should a provision of the concluded contract or of this GTC be or become invalid or contain a gap, the legal validity of the remaining provisions shall remain unaffected. In this case, the parties agree to take on a legally effective provision that comes as close as possible to the economic purpose of the invalid clause.

18     Written Form

18.1  Assurances, collateral agreements, amendments or supplements to the contractual agreements must be made in writing in order to be effective.

18.2  The written form shall be deemed to have been complied with by fax. It may be replaced by electronic documents if they bear a digital signature or show that a declaration has been signed in person.

19     Applicable Law and Place of Jurisdiction

19.1  The contract language is German. For contractual documents (e.g. order, contract) or other correspondence, the German language version shall always prevail.

19.2  The contract concluded between NEXT and the customer as well as the agreement made under it shall be governed by the laws of the Federal Republic of Germany. The UN Sales Convention is excluded (CISG – United Nations Concention on Contracts for the International Sale of Goods dated 11 April 1980).

19.3  The place of performance for all obligations resulting from the contract shall be Büren. The exclusive place of jurisdiction for all disputes arising from this contractual relationship shall be Paderborn, unless otherwise prescibed by law.

 

Update:   28.09.2018

Julia ThieleGeneral Terms and Conditions