The General Terms and Conditions of NXGEN consist of the following sections:  

A. General section  

B. Technology platform and system integration  

B1. Hardware purchase

B2. Licenses for software from third party suppliers 

B3. System maintenance

C. NXGEN software  

C1. Licenses for NXGEN software  

D. NXGEN cloud service provider 

D.1 NXGEN software-as-a-service services

A. General section  

The General Section contains the terms and conditions applicable to all types of contracts, while the Special Sections B, C and D contain only the terms and conditions specifically applicable to the individual types of contracts. 

These General Terms and Conditions (GTC) apply exclusively to all deliveries and other services rendered by NXGEN.

Any deviating terms and conditions of the Customer not expressly accepted by NXGEN shall not be binding, even if NXGEN does not expressly object to them.

The invalidity of individual provisions of this contract or its constituent parts shall not affect the validity of the remaining provisions. The contracting parties are obliged, within the bounds of what is reasonable and in good faith, to replace an invalid provision by a valid provision which is equivalent to its economic effect, provided that this does not result in a material change in the content of the contract; the same applies if a matter requiring regulation is not expressly regulated.

The GTC apply to all companies of NXGEN. Whenever NXGEN is referred to in the following, this shall mean the company which has concluded the individual contract with the Customer.  

Offers, closure of contract and provision of services

Contractual offers by NXGEN are without engagement. NXGEN’s order confirmation shall be exclusively authoritative for the scope of the performance owed under the contract. 

NXGEN reserves the right to make changes in the work equipment used (e.g. software products), the standards and technologies employed, the type of execution and other specifications even after dispatch of an order confirmation, provided that such changes do not contradict either the order confirmation or the Customer’s specification. The Customer will furthermore agree to any further proposed modifications by NXGEN to the extent that such modifications are reasonable for the Customer.

Partial deliveries are permissible.

The documents on which the offer or the order confirmation is based, such as illustrations, drawings, descriptions, are as a rule only to be understood as approximate values, unless they are expressly designated as binding.

To the extent that NXGEN provides voluntary, gratuitous services to the Customer in addition to the contractual content, such services may be discontinued at any time and without prior notice. The discontinuation shall not give rise to any claim for reduction, refund or damages.

Upon receipt of an order confirmation, NXGEN may assume that the Customer agrees with the order confirmation, unless the Customer objects thereto within a period of 10 days after receipt.

Commencement of contract 

 NXGEN presents its range of services on its website www.nxgen.io without obligation, and NXGEN may at any time change its range of services and limit and/or discontinue or extend the provision of individual services.

The contract between NXGEN and the Customer shall come into force upon confirmation of a customer-specific offer, upon the written award of an order by the Customer or upon the use of a service offered by NXGEN. 

Unless otherwise agreed, written contracts shall become effective on the date of signature, order confirmations on the date of issue. 

End of contract

Individual contracts for the supply of hardware or software or for the provision of a one-off service shall terminate without further end without further ado on the date of their proper fulfillment. 

Individual contracts for the provision of a continuing service shall end with the expiry of the contract or its termination. Notice of termination must be given in writing.  

NXGEN reserves the right to terminate a contract for cause at any time without notice.

Good cause for immediate termination of a contract exists for NXGEN in particular if the Customer:

1. 1. falls into bankruptcy or the opening of bankruptcy proceedings has been refused for lack of assets,

0. 2. is in default with payment obligations under the contractual relationship and has been reminded unsuccessfully by setting a grace period and threatening to terminate the contract,

0. 3. culpably violates legal provisions when using the contractual services or interferes with copyrights, industrial property rights or rights to a name of third parties, 

0. 4. or if the services are used for the purpose of promoting criminal, unlawful or ethically questionable acts.

Performance 

In the absence of any agreement to the contrary, NXGEN is entitled to perform the contractually agreed service itself or in cooperation with third parties or to have it performed in full by third parties. NXGEN shall in any event remain responsible for the performance of the contract. 

Handover and acceptance 

NXGEN shall perform the owed service by handing over the product or service. Formal acceptance with the participation of both parties shall only take place if this is expressly provided for in the individual contract. Defects which do not preclude the intended use of the work result (“minor defects”) shall not prevent acceptance.  

Services shall be deemed to have been accepted if, for reasons for which NXGEN is not responsible, an agreed acceptance does not take place within 30 days of the agreed acceptance date or, in the absence of such date, within 30 days of handover. In any event, they shall be deemed to have been accepted when the Customer productively uses Products or results of Services.  

Default of acceptance  

If the Customer fails to accept the duly offered service, NXGEN may, after having set a reasonable period of grace:  

1. 1. Continue to adhere to the part of the contract performed so far and claim the compensation agreed therefor, but definitely waive the further performance of Services. 

0. 2. Withdraw from the entire contract, demand the return of all delivered products and claim damages. This shall consist of the reduced value of the Products as well as the full contractually agreed compensation for the Services already provided.  

In addition, NXGEN may in both cases claim liquidated damages for the loss of future services. This shall amount to 50% of the contractual value of the Products not yet delivered at that time and of the Services not yet performed. NXGEN reserves the right to claim further damages upon corresponding proof.

Default by NXGEN

If a binding deadline agreed by NXGEN is not met and if NXGEN is responsible for the delay, the customer shall grant NXGEN in writing a reasonable period of grace of at least 30 days. If this period is not observed either, NXGEN shall be in default and the customer may, after having set a further period of grace in writing, continue to insist on performance:   

1. 1. Continue to insist on performance.  

0. 2. Provided that the Customer declares this without delay, waive the subsequent performance.

0. 3. If the Customer immediately so declares and if the outstanding performance or delivery substantially impairs the usability of all services purchased from NXGEN, withdraw from the contract.  

Prices and terms of payment

All prices quoted are exclusive of value added tax and any other taxes.   

NXGEN is entitled to change its prices at any time. Price changes made after the signing of the contract shall have no effect on individual contracts already concluded for the supply of products. In the case of individual contracts for the provision of services, the new prices shall apply after 3 months’ advance notice. 

Invoices (one-off charges) from NXGEN are payable within 30 days subject to special agreement. 

Recurring, transaction and periodic provision fees are invoiced in advance and are payable within 10 days. 

After expiry of this period, the Customer shall be in default without further notice.   

Additional expenditure  

NXGEN may charge for the following services in addition to any contractually agreed compensation on a time and material basis:

1. 1. Services not included in the defined scope of services.

0. 2. Services for the analysis and elimination of malfunctions which were not caused by supplied or maintained components or which are not reproducible (operating errors, incorrect manipulations, unauthorised interventions, effects of third party products, errors in the data material provided by the Customer or third parties, changes to the data files which are not made via the ordinary and licensed programs of NXGEN).

0. 3. Services for the rectification of malfunctions caused by the physical action of third parties or force majeure (physical damage by the Customer or third parties, power failure, overvoltage, lightning, damage caused by the elements, animal damage, effects of unusual physical, chemical or electrical stress). 

0. 4. Expenses incurred because the customer has violated his obligations to cooperate.  

0. 5. Expenses caused by software/virus attacks.  

Default of payment by the customer  

If the customer is in default of payment of an invoice of NXGEN, NXGEN may charge default interest of 5%. In addition, NXGEN may, after setting a grace period, at its option either:  

1. 1. continue to be bound by the contract, sue for payment of the outstanding amount plus damages for delay, or and refuse further performance of its obligations until proper payment has been made.

0. 2. Continue to adhere to the contract, sue for payment of the outstanding claim plus damages for delay and definitely waive further performance of services. 

0. 3. Withdraw from the contract, demand the return of all products delivered and invoice the contractually agreed compensation in full as damages for the services already provided.  

In cases “2” and “3” NXGEN may additionally claim liquidated damages for the loss of future Services. This shall amount to 50% of the contract value of the Products not yet delivered and the Services not yet performed. NXGEN reserves the right to claim further damages upon corresponding proof. 

Cooperation obligations of the customer

The Customer must create all preconditions within its sphere of influence to enable NXGEN to perform the services owed. The Customer is in particular responsible for the following areas:  

1. 1. Contact persons and project management: designation of competent and decision-making contact persons in the Customer’s company and, if required, designation of a Customer project manager; release of these persons for project tasks to the extent required; 

0. 2. Training: Training of the employees with regard to the contractual products; imparting of general user knowledge and, if necessary, training of superusers; 

0. 3. Fault and Error Reporting: Immediate information on the occurrence of faults and errors in the form specified by NXGEN; description and documentation of the faults occurring as accurately as possible;  

0. 4. Data responsibility: Provision of the data to be processed; input of the data; data transfer and recovery of the data; responsibility for data integrity and compliance with data protection regulations;  

0. 5. Data backup: execution and control of data backup, secure storage of backup;  

0. 6. Usage regulations: compliance with the usage regulations specified by NXGEN or the manufacturers; careful handling and external cleaning of the contractual products;  

0. 7. Support of NXGEN: Assistance with work in the Customer’s operations as instructed by NXGEN, execution of work assigned to the Customer by NXGEN;  

0. 8. Interfaces: Definition and programming of interfaces to be implemented by the customer;  

0. 9. Communications: provision and assurance of data communications, internet and telephone connectivity;  management of the interface with the corresponding providers; maintenance of the technical facilities to be installed by the customer for remote maintenance;  

0. 10. Acceptance and inspection obligations: Acceptance of offered services and products, inspection of delivered services and products immediately after handover, cooperation in system tests, performance of acceptance tests.  

Retention of title and rights of use 

NXGEN retains title to the delivered products/services until full payment of all claims of the Customer.  

The retention of title shall also apply until all claims, including future and conditional claims, arising from the business relationship between the Purchaser and NXGEN have been satisfied.

For the duration of the contract, the Customers are granted the non-transferable, non-exclusive right to use and exploit the service or product. All rights to existing intellectual property or intellectual property arising upon performance of the contract in respect of the service or products of NXGEN (e.g. programs, templates, data, trademarks, patents, copyrights, etc.) shall remain with NXGEN or with the third parties engaged by NXGEN.

Exclusion of warranty in case of self-inflicted damage  

Any unauthorised rectification by the Customer or by third parties is excluded. If the customer handles hardware or software products improperly, modifies or repairs them himself or has such actions performed by third parties not authorized by NXGEN, he shall lose all warranty and liability claims. In addition, NXGEN may charge the customer for any additional expenditure caused thereby at the applicable rates.  

Approval  

If the Customer uses products and work results productively, such services shall in any case be deemed to have been approved if no written complaint is made within 30 days of acceptance or, in the absence of such, within 30 days of handover. Defects which could not be discovered even in the course of a proper inspection are excepted. Such defects may be asserted until the ordinary expiry of the warranty period.  

Liability

NXGEN shall be liable for personal injury and property damage up to the price of the defective product or service in the event of fault. In the case of recurring services (maintenance etc.) an annual fee shall be deemed to be the price of the service. Any liability for auxiliary persons as well as for financial losses such as loss of profit, unrealized savings, the Customer’s own expenses, claims for recourse by third parties, damage caused by delay, damage resulting from loss of data and damage to data, damage resulting from the commercial use of the products and for costs resulting from the involvement of third parties is excluded to the extent permitted by law.   

Exclusion of set-off  

The Customer may set off against claims of NXGEN only such counterclaims as have been accepted by NXGEN in writing.  

Collateral  

The granting of a license for use is subject to full payment of the license fees.  

If the customer fails to pay the license fees, it shall, after a single written reminder, loose all rights of use to the unpaid Software and shall be obliged to delete all copies of the Software and to return data carriers and documentation to NXGEN.  

Confidentiality

All contracting parties shall treat as confidential all information which is neither generally known nor generally accessible. In particular, information concerning know-how and programming. In case of doubt, information shall be treated confidentially.

The obligation of confidentiality exists prior to the conclusion of the contract and continues beyond the termination of the contract as long as the data or information concerned has not been made public.

NXGEN undertakes not to allow its employees, consultants or other third parties to inspect the Customer’s data not intended for publication. Should this be necessary for technical reasons, the persons concerned are obliged to maintain equally strict confidentiality. This also applies if NXGEN uses third party companies for the performance of the contract with the permission of a Customer.

Transfer  

NXGEN may transfer this Agreement or any part thereof to another NXGEN company at any time without the consent of the Customer and with full discharge of NXGEN.   

Final provisions  

Swiss law shall apply to the exclusion of the provisions of the Vienna Sales Convention.

Should certain points not be regulated or individual provisions of these Terms and Conditions be invalid, the contract shall nevertheless remain in force. The unregulated or ineffective points shall be replaced by an agreement which complies with the law and comes as close as possible to the will of both parties.

The exclusive place of jurisdiction is the statutory seat of the NXGEN company listed in the individual contract.

B.  Technology platform and system integration  

B1. Hardware purchase  

Subject matter of the contract   

NXGEN sells to the Customer the hardware products specified in the individual contract.

Deliveries 

NXGEN shall deliver Hardware ex works (Incoterms) Switzerland.  

Prices

The Customer undertakes to pay the purchase price specified in the individual contract. The purchase price will be invoiced by NXGEN after conclusion of the contract. 

Warranty

In order to safeguard its rights in respect of defects, the Customer shall inspect the hardware products delivered to it immediately after delivery and shall report any defects  

immediately upon delivery and to notify NXGEN in writing of any defects. Unless otherwise agreed in writing, the warranty period shall be 24 months. NXGEN shall assume the defined product warranty period for hardware products supplied by the respective manufacturer. This shall commence on the date of NXGEN’s invoice.

B2. Licences for software from third-party suppliers

Right of use

NXGEN grants the Customer the right to use the software products specified in the Agreement in accordance with the following provisions. The scope and content of the Software License shall primarily be determined by the manufacturer’s license conditions which are enclosed with the Software Product.   

In the event that such manufacturer’s licenses have not been validly agreed, the following shall apply: 

1. 1. NXGEN grants the Customer the non-exclusive, non-transferable right to use the Software together with the Documentation on the Customer’s system intended for use for an indefinite period of time in accordance with its intended purpose.  

0. 2. Intended use includes exclusively: 

• • • • The complete or partial loading, saving, transferring, converting, running or reproducing of the software in object code on the customer’s system for the purpose of executing the program instructions for processing the customer’s data. 
      • The temporary production of copies required for this purpose and the use of the documentation in connection with the intended use of the software.  
      • The use of the software on a system other than the customer’s system, on more workstations or mobile additional devices than specified when the license was acquired, the operation of a computer centre for third parties with the software, the copying of the software beyond the intended use, the leasing, lending or disclosure of the software to third parties, the editing, modification or extension of the software and the conversion of the object code back into source code are not permitted.

Delivery and Installation  

• • • • NXGEN shall hand over to the Customer the software of third party suppliers on the data carrier handed over to NXGEN by the manufacturer. Documentation will only be handed over if provided by the manufacturer. 
      • The installation of the software is to be contracted separately as an additional service.  

Unauthorised use  

Violation of the provisions governing the use of the software shall result in a non-exempting contractual penalty in the amount of twice the license fee for each unauthorized intervention.   

Industrial property rights  

The customer acknowledges the industrial property rights of the manufacturers to programs and documentation and shall leave the corresponding industrial property rights notices unchanged. The customer undertakes not to make software and documentation available to third parties, either in whole or in part, or to publish them.  

Terms of payment  

The customer undertakes to pay the license fees specified in the contract (one-off license fees and/or recurring licence fees).  

Licence fees are merely compensation for the granting of the right of use and do not entitle the Customer to make use of further services such as maintenance and support.   

• • One-time license fees will be invoiced by NXGEN upon conclusion of the contract and are payable within 30 days of the invoice date. 

• • Recurring license fees are due for payment in advance for each calendar year.

Warranty  

In order to safeguard its warranty rights, the Customer shall inspect the Software supplied to it immediately after delivery and shall immediately and to give notice of any defects immediately in writing and in a comprehensible form.

   

Unless otherwise agreed in writing, the warranty period shall be 24 months and shall commence upon delivery of the products.   

The Customer’s warranty rights shall be governed by the manufacturer’s terms and conditions. These warranty rights vis-à-vis NXGEN shall consist exclusively in NXGEN’s claiming warranty rights from the manufacturer/supplier in accordance with the manufacturer’s terms and conditions. If the manufacturer/supplier does not voluntarily fulfill its warranty obligation, NXGEN assigns the warranty rights to the customer for legal enforcement. Other warranty claims against NXGEN are excluded.   

Legal warranty  

The provisions of the manufacturer shall apply and NXGEN assigns to the customer all claims for direct enforcement against the manufacturer/supplier. Any further warranty of title is excluded.

Duration of contract  

Individual contracts in which recurring license fees have been agreed may be terminated with a notice period of 3 months at the end of each year.  

In addition, NXGEN may terminate such individual contracts without notice for good cause if the Customer violates the terms of use or fails to pay the license fees despite written warning. Upon termination of the contract, the Customer shall cease all use of the Software and destroy any copies of the Software and Documentation provided to it. Individual contracts in which only one-time license fees have been agreed do not have a contract term and thus do not require termination.  

B3. System maintenance and supported components/hardware 

The services provided by NXGEN relate exclusively to the components supplied and paid for.

In the case of software, NXGEN may require the customer to use the most recent release supplied by the manufacturer and to procure new chargeable versions as and when they become available. 

If, on the other hand, the products are hardware, NXGEN may make the performance of services conditional upon the manufacturer providing support for the products and keeping spare parts available.   

If these preconditions are not fulfilled, NXGEN may discontinue the services for the components concerned at any time after giving 1 month’s notice.

Third party costs  

If NXGEN has to call upon the support of third parties (manufacturers, etc.) for the performance of its services, because interventions or spare parts are necessary for the elimination of the defect, the resulting costs may be invoiced as third party costs.  

Warranty

NXGEN undertakes to perform its services with due care. However, NXGEN cannot guarantee that the contractual products can be used uninterruptedly and error-free in all desired combinations, with any hardware and software products and data.   

C. NXGEN software  

C1. Licences for NXGEN software  

Right of use  

NXGEN grants the Customer the non-exclusive, non-transferable right to use the Software, including the Documentation, on the Customer’s system intended for use for an indefinite period of time in accordance with its intended purpose.  

Intended use includes exclusively:

1. loading, storing, transmitting, converting, running or reproducing software, in whole or in part, an object code on the Client’s system for the purpose of executing the program instructions for processing the Client’s data; 
2. the temporary production of copies required for this purpose and the use of the documentation in connection with the intended use of the software.  

The use of the software on a system other than the customer’s system, on more workstations or mobile additional devices than specified when the license was purchased, the operation of a computer centre for third parties with the software, the copying of the software beyond the intended use, the leasing, lending or disclosure of the software to third parties, the editing, modification or extension of the software and the reversion of the object code to source code are not permitted.  

Delivery and installation  

NXGEN shall hand over the Software to the Customer on a suitable data carrier or make it available in electronic form. Documentation will only be handed over if provided by NXGEN. The installation of the Software shall be contracted separately as an additional service.  

Transfer of software  

With the prior written consent of NXGEN, the Customer may transfer the Software to a third party, provided that the Customer confirms in writing that it will not retain any copies thereof and that it will definitely discontinue its use.  

Unauthorized use  

Violation of the provisions governing the use of the Software shall result in a non-exempt contractual penalty in the amount of twice the license fee for each unauthorized intervention.   

Industrial property rights  

The Customer acknowledges NXGEN’s proprietary rights in software and documentation and will leave the relevant proprietary rights notices unchanged. The Customer undertakes not to make the Software and Documentation available to third parties, either in whole or in part, or to publish them.  

Terms of Payment  

The customer undertakes to pay the license fees specified in the individual contract (one-off license fees and/or recurring license fees). License fees are merely compensation for the granting of the right of use and do not entitle the customer to make use of further services such as maintenance and support.  

• One-time license fees will be invoiced by NXGEN upon conclusion of the contract and are payable within 30 days of the invoice date. 

• Recurring license fees are due for payment in advance for each calendar year.

Warranty  

In order to safeguard its rights in respect of defects, the Customer shall inspect the Software supplied to it immediately after delivery and give notice of any defects immediately in writing and in a comprehensible form. Unless otherwise agreed in writing, the warranty period shall be 6 months and shall commence upon delivery of the products. During this period, reproducible program errors will be corrected or workarounds offered within a reasonable period of time if the software does not comply with the contractual specifications. Other warranty claims are excluded.   

Warranty of rights  

NXGEN represents and warrants that it or another NXGEN company owns all rights in NXGEN Software. However, the Customer is obliged to inform NXGEN at an early stage and prior to the initiation of legal proceedings of any alleged third party claims and to comply with any instructions subsequently issued by NXGEN. If the customer fails to do so, NXGEN shall be released from its warranty obligations. NXGEN shall also be free to take back the affected products against reimbursement of the purchase price in order to avoid legal proceedings.  

Duration of contract  

Individual contracts in which recurring license fees have been agreed may be terminated with a notice period of 3 months at the end of each year. In addition, NXGEN may terminate such individual contracts without notice for good cause if the Customer violates the terms of use or fails to pay the license fees despite written warning. Upon termination of the contract, the Customer shall cease all use of the Software and destroy any copies of the Software and Documentation provided to it.  

Individual contracts in which only one-off license fees have been agreed do not have a contractual term and therefore do not require termination.  

Maintenance of the software  

New releases of the standard software shall be made available to the Customer free of charge.  

NXGEN will inform the Customer when such releases are available and will make a recommendation as to whether their installation is necessary in the Customer’s business. The installation of new releases on the Customer’s system is not covered by the software maintenance fees and will be invoiced additionally.  

NXGEN is entitled to make the provision of further Software Maintenance Services dependent on the installation of a specific release.  

NXGEN shall ensure that the Software can be reinstalled in the event of destruction. However, NXGEN’s expenditure for the reinstallation of software will be invoiced as a service, unless the malfunction was due to a software error.  

Hotline / support  

NXGEN maintains a hotline to answer enquiries in connection with the use of the hardware and software products.   

Monday to Friday 07.30-12.00 and 13.00-17.00, excluding general holidays at the location of the responsible NXGEN office. In the event of significant operational disruptions, NXGEN guarantees a response time of 1 working day during the on-call hours.  

Warranty  

NXGEN shall provide the Software Maintenance Services with due care. However, NXGEN cannot guarantee that the Software maintained by it can be used uninterruptedly and without errors.  

D. NXGEN cloud service provider

D1. NXGEN Software-as-a-Service Services (SaaS) 

Scope of application

For the duration of a contract, NXGEN shall make the cloud services (SaaS products) available to the Customer for use in a respective current version via the Internet against payment.

The current offers with the prices are published on the NXGEN website.

The Customer shall inform NXGEN which offer and for which term or type of contract it has decided. The conclusion of the contract shall become binding upon NXGEN’s electronic confirmation. 

The confirmation shall contain details of the name of the NXGEN SaaS Service and, if applicable, the duration of any additionally agreed test period (periodic provision). The Customer expressly accepts these GTC. 

The Customer’s general terms and conditions or general terms and conditions of purchase are hereby expressly excluded unless accepted by NXGEN in writing.

Responsibilities and services 

NXGEN shall be responsible for the performance of the agreed contractual services. 

These include the reliable and secure operation of the technical infrastructure, installation and maintenance of the Software, operation of a back-up system, as well as the measures necessary to maintain operational efficiency. 

NXGEN provides the Customer with the ordered SaaS products for use as intended and grants the Customer the non-exclusive and non-transferable right to use the same during the term of the contract.

System availability

The NXGEN SaaS Services are provided on a “best effort” basis. NXGEN shall take reasonable measures to ensure the most uninterrupted use of the SaaS Products. The Customer is aware, however, that the SaaS Services and further components of third party partners, the functional efficiency of which cannot be influenced by NXGEN, are a technically complex system, which is why NXGEN cannot guarantee the constant and complete availability of these components. Interruptions due to system maintenance, updates etc. will be announced in advance in accordance with (clause 15, Notices), whereby a period of 2 working days will be observed in the case of work that can be planned. Immediately necessary work which triggers an interruption in availability can be carried out without prior notice in the sense of a quick problem solving or averting of potential danger (e.g. virus attack).

Endangering of the NXGEN data security

If NXGEN detects a threat to the proper operation due to negligent or willful activities of external originators (DOS attacks, virus attack, etc.), NXGEN is authorized to immediately take all necessary steps to protect its own infrastructure and software from damage.

Support (SaaS)

NXGEN’s support is provided by means of a support ticketing system. 

The reporting of faults in relation to the NXGEN SaaS products is carried out within the framework of a trouble ticketing system provided separately by NXGEN. Trouble tickets will be accepted and processed at any time.  

Prices

The amount of the remuneration for the agreed services is regulated separately in the respective price lists. As a rule, it consists of one-off fees, transaction fees, periodic provision fees and recurring fees. 

Transaction fees, periodic provision fees and recurring fees are generally invoiced in advance, one-off fees after provision. 

One-off fees are payable within 30 days of invoicing.

Recurring fees may be adjusted after prior notice. Additionally agreed services will be charged separately.

Industrial property rights 

The Customer acknowledges the property rights, in particular the copyright of NXGEN in programs and documentation. The Customer is not entitled to make this software available for use by third parties, whether against payment or free of charge, or to sublet it and/or to use it outside the scope of the contractual relationship with NXGEN or to dispute NXGEN in any way.

Data protection and data security

NXGEN will treat the Customer’s data with the utmost care and protect it against misuse and loss. To this end, NXGEN will take technical and organizational measures which at least comply with the applicable requirements of the GDPR. 

If possible, NXGEN will, at the Customer’s request, store the data in the Customer’s respective EU country territory.

Or, in another member state of the EU or in a contracting state with an agreement on the European Economic Area.

Special agreements on server locations may be made within the scope of technical possibilities.

1. 1. The customer is responsible for the legality of the data transfer or its use. All data of the Customer stored and processed by NXGEN are the exclusive property of the Customer and will be used by NXGEN exclusively for purposes of performance of the contract.

2. 2. The Customer permits NXGEN, to the extent permitted by law, to make anonymous evaluations of the data stored by NXGEN for the Customer, e.g. for statistical purposes, as well as the exploitation of the evaluations by NXGEN.

Warranty 

NXGEN warrants that the Cloud Services will be provided in a technically correct manner.

Liability

 

It is expressly agreed that NXGEN can only be held liable for such circumstances which are within NXGEN’s sphere of influence, i.e. which originate in particular in the part of the infrastructure operated and controlled by NXGEN itself. NXGEN shall therefore not be liable for upstream or downstream causes, even if these causes result in a service provided by NXGEN which is not in conformity with the contract. In particular, NXGEN shall not be liable for damage caused by (connection) errors the cause of which lies outside the sphere of influence of NXGEN (e.g. errors on the part of the acceptance partner, the Internet connection, etc.). In all other respects, liability is limited, to the extent permitted by law, to cases of gross negligence and willful misconduct. NXGEN excludes in particular any liability for indirect and so-called consequential damages.

Neither party shall be liable for any failure to perform or delay in performance of its obligations if such failure or delay is due to force majeure, including strike. In such a case, the affected party shall immediately notify the other of the occurrence of the force majeure.

Duration and termination of the contract for Software-as-a-Service (SaaS) services

The contract is generally concluded for 1 or 12 months and comes into effect on the date agreed in the contract. 

The contract may be terminated in writing in accordance with the terms and conditions of the respective SaaS product, unless expressly limited in time in the order.

The parties are free to terminate the contract immediately for good cause. 

Changes to the contract

If an extension (qualitatively or quantitatively) of the contractually regulated services is requested within the scope of the currently available SaaS products, such extension will be implemented by NXGEN within a period to be agreed and remunerated by the Customer in accordance with the adjusted conditions from the time of implementation. 

NXGEN expressly reserves the right to change the Services, including these GTC, at any time. Amendments shall be made available on the NXGEN website and shall become effective upon appearance on the NXGEN website.

Zurich, November 2019