General Terms and Conditions of NXI GmbH & Co. KG (hereinafter referred to as ‘NXI’)
1. scope of application
These General Terms and Conditions shall apply to a person who, when concluding the contract, is acting in the exercise of his commercial or independent professional activity (entrepreneur), legal entities under public law and special funds under public law.
2. general information
1 These General Terms and Conditions shall apply exclusively to all NXI services and commissions. By accepting the offer, the client (hereinafter referred to as “client”) accepts these conditions as exclusively binding. Deviating terms and conditions of the AG shall not become part of the contract, even if they are known to NXI, even if they are not contradicted separately – except by these general terms and conditions.
2nd NXI is a German company and concentrates on the marketing and development of high-quality products and services in the field of information technology, development, consulting and training.
3. object of service, conclusion of contract
1. service is the service described or described in detail in the offer and/or order, including the documentation listed in the respective offer and/or service description and/or list (hereinafter referred to as “subject matter of performance”).
2 The contract between NXI and the AG is concluded by written acceptance and confirmation of the offer. In the event of doubt as to the content and scope of the agreement, the provisions of the confirmation of contract shall take precedence, including these GTC.
3 Unless otherwise specified in the Offer, each Offer shall be made no later than 20 working days after NXI’ receipt of the Offer by the AG. Before the offer has been accepted by the Client, NXI shall be entitled to revoke the order at any time without the Client being entitled to any claims for damages. Working days are Monday to Saturday excluding public holidays in Hamburg, Germany.
4. after the confirmation of the offer, a change to the object of performance is only permissible with written confirmation by NXI. The Principal may, within the bounds of reasonableness for NXI, request changes to the object of performance. It is NXI’ sole responsibility to comply with these changes. The effects, in particular with regard to additional and reduced costs, shall be regulated appropriately by mutual agreement.
If the offer confirmation deviates from the offer, NXI shall only be bound if NXI has expressly agreed to the deviation in writing. In particular, NXI is only bound by the AG’s General Terms and Conditions to the extent that they comply with the NXI Terms and Conditions or NXI has expressly agreed to them in writing. The delivery of services and the acceptance of payments do not constitute consent.
4. performance of services
In principle, NXI provides the contractual services itself through its own employees. NXI is entitled to pass on orders to third parties or to subcontract. The AG already expressly agrees to this by accepting the Offer.
5. duty to inform
Unless expressly agreed otherwise, NXI shall inform the Principal of the progress of the work undertaken for the Principal. The AG ensures that the best possible exchange of information is guaranteed.
6. cooperation between the contracting parties
(1) NXI shall receive from the AG all texts, documents, information and data in the agreed data format required and available from the point of view of NXI for the provision of the services, insofar as these are not otherwise accessible to NXI. If NXI considers the information to be insufficient, NXI will inform the AG accordingly.
(2) Unless otherwise provided in the tender, each party shall designate to the other a competent person who shall bring about the decisions relating to the provision of the agreed services. The competent persons shall not be authorised to make legal declarations on behalf of the party which has named them, unless the competent person is authorised to represent the party on an organic or legal basis.
The Principal is obliged to pay for the agreed object of performance. The amount of the remuneration and the due date shall result from the agreement reached in connection with the prices valid at the time of conclusion of the contract. All prices quoted are net prices plus the applicable value-added tax. As long as nothing to the contrary has been agreed in the offer or in the agreement reached, a payment term of 14 days after receipt of invoice shall be deemed to have been agreed.
NXI and its legal representatives and vicarious agents shall only be liable for intent or gross negligence subject to the following reservation. In the case of slight negligence, liability shall only apply to the breach of material contractual obligations, i.e. obligations whose observance is of particular importance for the achievement of the purpose of the contract. The liability is limited to the foreseeable, contract-typical, direct average damage.
The above exclusion of liability does not apply to liability for damages resulting from injury to life, limb or health. The provisions of the Product Liability Act shall also remain unaffected by the exclusion of liability.
1 The contract shall have a term to be determined by the parties upon conclusion of the contract. Without a term agreement, the term of the project period defined in the offer shall be deemed to have been agreed.
2. a termination during the term is inadmissible. The right to extraordinary termination in written form remains unaffected if the legal requirements are met, in particular in the event of repeated, culpable violation of the provisions of these General Terms and Conditions and the Offer by the Principal.
The parties undertake to treat all commercial and technical information of the other party which they become aware of in the course of their business relationship as confidential and as business secrets. This obligation to maintain secrecy does not apply if the information is already generally known or becomes generally known through no fault of the party obliged to maintain secrecy or becomes known to the party obliged to maintain secrecy by third parties without breaching any secrecy agreements.
The parties also have the right to disclose information if the information is required to be disclosed by an administrative or judicial order. Specifications, drawings, models, templates, samples and similar items may be disclosed or made available to third parties only with the prior written consent of the party owning them. This also applies to the reproduction of these objects.
2. NXI shall otherwise be permitted to pass on the information provided by the Client to vicarious agents and persons employed in the performance of an obligation, insofar as NXI has obligated them to do so beforehand by means of a non-disclosure agreement corresponding to this Clause 10. Insofar as this has taken place, the corresponding vicarious agents and assistants are not to be understood as third parties within the meaning of this Clause 10.
The provisions contained in this clause No. 10 shall apply beyond the termination of the individual contract.
All information, samples, drawings, models, tools, moulds, etc. received in physical form or stored on a data carrier shall be returned to the other party upon written request. The obligation to return also applies to any copy, copy or other recording, in particular on data carriers. At the written request of the other party, the information shall be destroyed or deleted and this destruction or deletion shall be notified in writing. This provision does not apply to information that the receiving party is required by law or regulation to retain.
7. if the AG culpably breaches its obligations pursuant to this Clause 10, it shall be obliged to pay NXI a contractual penalty to be determined by NXI at its proper discretion for each breach. The amount of the contractual penalty may also be reviewed by the competent court as to its appropriateness.
NXI is entitled to name the Client as a reference and/or to advertise services or products that NXI has developed for the Client within the framework of the contractual relationship. The AG already agrees to reference advertising by NXI, for example on the NXI website or in a company presentation.
12. final provisions
1. NXI may amend these GTC at any time without stating reasons. If NXI makes changes to these GTC, these will be notified to the AG in text form. An amendment to these GTC may be objected to by the Principal within a period of four (4) weeks after receipt. If the Customer objects to an amendment to the GTC, NXI may either continue to apply the previous GTC or terminate the contractual relationship with a notice period of four (4) weeks. NXI shall inform the AG of the consequences of any amendment to these GTC and of any rights arising therefrom. If the AG does not object in due time, amendments to the GTC shall be deemed to have been agreed from the outset.
2 The exclusive place of jurisdiction for all legal disputes arising from this contract is the registered office of NXI.
3 German law shall apply exclusively to all disputes arising from the contractual relationship to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
4. the AG is only allowed to offset undisputed or legally established counterclaims.
5. changes and / or additions to these GTC and to an offer must be made in writing to be effective. This shall also apply to the waiver of the written form requirement.
6 If the written form is stipulated in these GTC, this requirement shall also be fulfilled by sending by e-mail or fax. This also applies to the termination of or withdrawal from a contract, amendments or supplements to this contract or an individual contract as well as to the conclusion, amendment or supplementation of an individual contract.
7 Should individual provisions of these GTC be or become ineffective or contain a gap, the other provisions shall remain effective. The parties shall attempt to replace the invalid provision immediately with a valid provision that comes as close as possible to the economic purpose of the invalid provision. If this is not successful, the relevant statutory provisions shall apply.
13. place of performance
The place of performance shall be the registered office of NXI.
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