Terms and Conditions
General Business Terms and Conditions
of
Nionex GmbH
- a subsidiary of DirectGroup Bertelsmann -
Avenwedder Straße 55
33311 Gütersloh Germany
hereinafter referred to as "Nionex"
1 Scope and Validity
1.1 All services and goods provided by Nionex are exclusively subject to these General
Business Terms and Conditions, hereinafter referred to as "Terms". All business conducted hereof is
subject to these Terms, even if not explicitly agreed upon.
1.2 Any additional agreements, provisos, modifications or addenda of or to these Terms
must be made in writing. Deviation from this written form clause also requires the written form.
1.3 Nionex reserves the right to modify or amend these Terms at any time. Nionex's
Contractual Partner (customer, contracting party, hereinafter referred to as "Contractual Partner")
has the right to reject any such modification. Should the Contractual Partner not object to the
modified Terms within six weeks upon receipt of notification of modifications, then any such
changes are effective in accordance to their notification. At the onset of the six-week period,
Nionex will notify its Contractual Partner in written form or via email that the notification of
modification will be held as accepted if the customer does not indicate otherwise within six
weeks.
2 Services from Nionex
2.1 The scope of individual services is based on Nionex's service description and the
corresponding contractual details that refer to this description.
2.2 Additional work and expenses caused by any modifications prompted by the
Contractual Partner will be billed as additional expenses according to Section 2.3 of these Terms.
2.3 Additional services rendered by Nionex outside the scope of the contract will be
billed according to the respective current pricelists, provided the Contractual Parties have not
agreed on any deviating remuneration agreement in individual cases.
2.4 Unless otherwise agreed, Nionex may have these services contracted by the
Contractual Party rendered by subcontracted third parties. The Contractual Partner may only then
reject such subcontractors if justifiable and comprehensible doubts about their qualification can
be proven.
2.5 Contracts with Nionex do not infer any rights to existing brands, brands in
development or trademark rights for the Contractual Partner unless the contract stipulates another
agreement. Should Nionex make available to the Contractual Partner any documents in conjunction
with its offer or placing of order, these may not be made available to any third parties unless
Nionex has given its explicit consent to distribution to third parties in writing.
3 Cooperation of Contractual Partner
3.1 The Contractual Partner is to cooperate with Nionex during the rendering of services
in the necessary manner by promptly providing Nionex with all accessible information and documents
needed to render said contracted services.
3.2 The Contractual Partner is to provide Nionex all necessary information on the
intended field of application, business policy and procedural objectives and priorities, as well as
any other specifications in his/her sphere.
3.3 The Contractual Partner is to provide Nionex with the necessary documents for the
contracted work, in particular those documents on equipment, data, programmes and programme parts
associated with the contracted services.
3.4 The Contractual Partner ensures that he/she is authorised to store and process the
personal data of third parties provided to Nionex or its subcontractor, respectively, in accordance
with the data protection regulations of Nionex or its subcontractor, respectively, for the
fulfilment of contracted work.
3.5 The Contractual Partner covers any expenses caused by any work Nionex is forced to
redo or delay due to incorrect, later corrected or incomplete specifications or information.
3.6 If necessary, the Contractual Partner is to procure authorisation from third
parties.
3.7 Upon demand by Nionex and if necessary, the Contractual Partner is to provide at no
additional expense the necessary human resources for services rendered at his/her location for
reasons of industrial safety.
4 Coordination, Disagreements
4.1 Each Contractual Partner indicates a contact person who is responsible for
scheduling meetings and circulating/accepting information that deals with the project.
4.2 Upon conclusion of contract, the Contractual Partner is to immediately state in
written form the people whose technical or legal explications are binding for the Contractual
Partner.
4.3 Both Contractual Partners each state a contact person who is responsible for the
clarification of all technical matters in conjunction with the fulfilment of contracted services.
Should there be a change of project managers, the other Contractual Partner is to be informed of
the new project manager in written form.
5 Acceptance of Services Rendered
5.1 If Nionex develops or adapts software for the Contractual Partner, such services
require the acceptance of the Contractual Partner.
5.2 If the work results essentially correspond to the agreements made, the Contractual
Partner is to immediately confirm acceptance of services rendered in written form, four weeks after
receipt at the very latest.
5.3 Should the finished work results significantly deviate from the contractually agreed
requirements, Nionex is to correct these deviations within due time. After doing so, Nionex will
provide the Contractual Partner with the new work results for re-acceptance.
5.4 Should the Contractual Partner deny acceptance of services rendered without any
explanation, Nionex may stipulate a time period within which an explanation for denial must be
provided. The work results of services rendered are considered accepted if the Contractual Partner
does not specify the reasons for denial in written form within this period of respite.
5.5 Should the performance check remain unsuccessful again even though the Contractual
Partner has duly fulfilled its obligation to cooperate, the Contractual Partner may stipulate an
adequate additional period of respite for Nionex after which either depreciation of remuneration
(reduction) is demanded in accordance with legal stipulations, or the acceptance of services
rendered is rejected.
5.6 Should the Contractual Partner not accept the services rendered in due time, Nionex
may stipulate a time period within which an explanation must be provided. The contractual services
rendered are considered as accepted upon expiry of the respite period if the Contractual Partner
neither confirms acceptance, nor provides explanation of the extension of the performance check or
stipulates an additional respite period pursuant to Section 5.5 of these Terms.
6 Usage Rights to Work Results
6.1 Nionex grants the Contractual Partner the right to use the work results within
his/her company for his/her own purposes. Nionex's right to develop similar concepts for third
parties based on the work results of services rendered for the Contractual Partner remains herewith
unaffected.
6.2 The contract does not entitle the Contractual Partner to use any names or brand
names of Nionex or a third party.
6.3 All usage rights transferred to the Contractual Partner are terminated if any
additional period of respite set for the Contractual Partner in the case of delayed payment
ineffectively elapses; in this case, the Contractual Partner is to immediately return the software
including all and any copies to Nionex if said software had been installed on a hard drive, and
under threat of prosecution, is to ensure that said software has been deleted in its entirety.
6.4 Deviations and addenda are to be regulated by the Contractual Parties in
supplemental agreements as long as this is agreed upon for the fulfilment of services to be
rendered in individual cases.
7 Remuneration, Terms of Payment
7.1 The Contractual Partner is to issue compensation as agreed.
7.2 If no price has been stipulated for a particular service rendered by Nionex,
Nionex's price list in effect at the time of the conclusion of contract is valid.
7.3 Unless otherwise agreed, remuneration is made to Nionex's head office. All prices
are net prices plus the respective statutory value added tax, in addition to any other
country-specific duties for deliveries abroad or packaging and transportation costs or transport
insurance fees.
7.4 If payment based on time and material has been agreed upon, the Contractual Partner
is obliged to make an advance payment if requested by Nionex. In such cases and in the case of a
final instalment, which is to take account of any previous payment instalments, payment is due in
full within seven days upon receipt of the invoice unless the Contractual Partners have agreed on
payments at other specific dates.
7.5 Project-based travel expenses and daily allowances (overnight stays, 1st class train
fare, business class air travel, taxis, public transport, rental cars and parking fees) will be
submitted to the contractor on a monthly basis and settled according to the amount indicated on the
respective expense vouchers.
7.6 All payments to Nionex are due immediately if payment deadlines and periods cannot
be observed without any reason or if the Contractual Partner's financial situation should
significantly worsen.
7.7 In the case of payment default, the Contractual Partner is charged 8 % above the
respective applicable basis interest rate of the European Central Bank (§ 288 Section 2 BGB (German
Civil Code)).
Default interest is to be increased if Nionex brings forth proof of debits with a higher
interest rate.
7.8 The Contractual Partner may only offset Nionex's remuneration claims with undisputed
or res judicata counterclaims. The Contractual Partner may only use its right of retention in cases
of undisputed or legally binding res judicata claims.
8 Retention of Title
8.1 Nionex retains the title of all and any delivered goods until all invoices or claims
made within the scope of the business relation have been settled. All and any delivered goods many
only be resold, bonded or assigned by way of collateral with the explicit permission of Nionex. The
Contractual Partner transfers to Nionex the rights to all claims accruing from a resale at this
point in time already in order to cover all claims made within the scope of the business relation
with Nionex. If the customer incorporates any claims from an onward sale in an existing current
account relationship with a third party, the respective transferable balance is regarded as having
had been transferred. The Contractual Partner remains entitled to collect these claims, as long as
he/she has not entered into payment default with Nionex.
8.2 In the case of payment default and if a cheque or bill of exchange is not redeemed,
an enforcement measure remains fruitless, the purchaser has discontinued payment, bankruptcy
proceedings or extra-judicial composition proceedings have been filed, Nionex is entitled to
disclosure of the claim assignment, and/or after the fruitless expiry of an adequate period, to the
retrieval of the goods to secure its own rights. Within one month after retrieval of the goods,
Nionex shall inform the Contractual Partner whether Nionex claims loss of remuneration due to
non-fulfilment or whether it shall withdraw from the contract.
9 Warranty
9.1 If Nionex cannot ensure the availability stipulated in the specification of
services, the Contractual Partner is entitled to reduce the agreed remuneration.
9.2 The reduction pursuant to Section 9.1 of these terms is limited to a maximum of 5%
of the remuneration owed by the Contractual Partner; in the case of ongoing debts, the reduction is
limited to 5% of the monthly remuneration owed.
9.3 After joint determination of the reduction, the customer is to be granted the
respective credit note.
9.4 For claims of compensation of losses suffered, Section 10 applies.
9.5 Customer claims arising from any deviation from the availability defined in the
specification of services are definitively regulated in Section 9.1. Claims beyond this are
excluded.
9.6 For defects other than non-achievement of the agreed availability (Section 9.1), the
following applies:
9.6.1 The warranty period for work results rendered according to this
contract is 12 months and begins with the acceptance of the respective rendered service. In the
case of partial services, the warranty period begins with the acceptance of the respective partial
service rendered. If the partial service is utilised by the contractual partner without
reservation, the warranty period for the partial service begins with the first day of use; the
warranty for the contractual interaction of all partial services and the fulfilment of the
performance features of the entire services remains herewith unaffected.
9.6.2 Should the Contractual Partner determine any possible defects, he/she
shall immediately inform Nionex in writing.
9.6.3 If the defect has been caused by the hardware or data provided
by the Contractual Partner, or if it is caused by his/her request to carry out the contracted
service, Nionex is released from providing a warranty for these defects.
9.6.4 If the service provided by Nionex is insufficient, the customer
initially only has the right to demand rectification of defects, whereby Nionex has the option to
either eliminate the defects or produce new work. If, despite several attempts at rectification,
Nionex is not in the position to eliminatethe defects for which it is responsible, the Contractual
Partner is entitled to cancel the contract. This also applies if Nionex is not prepared to rectify
the defects or delays rectification beyond an adequate period of time for reasons of its own fault.
However, cancellation of the contract is excluded in the case of minor defects.
10 Liability
Claims made by the Contractual Partner for compensation of loss suffered or cost
reimbursement are excluded, with the following exceptions:
Nionex is liable for all injuries to life, body and health for which it is at fault, as well
as intentional or grossly negligent infringement of obligations. ¬Nionex is liable for slightly
negligent infringement of material contractual obligations, whereby the liability is limited to the
typical contractual, reasonably foreseeable losses and or the typical contractual, reasonably
foreseeable costs, respectively. Nionex is not liable for collateral losses or subsequent losses
due to disruption of operations and lost profits. Liability is limited to the order value of the
individual contracted order. ¬The above mentioned liability limitations also apply analogously for
the benefit of employees and representatives of Nionex. ¬The provisions of statutory product
liability remain unaffected. ¬Nionex is not liable for default or defects for which it is not at
fault (force majeure). In this case, Nionex has a right to postpone the rendering of its service
for an adequate period of time. Force majeure particularly includes strikes, lockouts and death or
the extended illness of a Nionex employee who is involved in the project.
11 Non-disclosure
11.1 Subject to the provisions in this contract, each Contractual Partner will treat any
information (in addition to documents, drafts, etc.) disclosed by the other party as confidentially
as they would classified business or company information. Such information is only to be used in
conjunction with the contracted services. The Contractual Partner is not to disclose or make
available any such information to third parties.
11.2 This obligation is non-binding if the information
- was previously available to the general public before receipt;
- was made available to the general public after receipt by no fault of the recipient of
the information;
- has been made available to the recipient of the information at any point in time by a
third party that was authorised to do so according to the best knowledge of the recipient of the
information;
- was already known by the recipient before receipt or has been independently developed
by him/her;
- was made available to a third party by Nionex for the fulfilment of
services/performance pursuant to Section 2.4 of these Terms and Nionex has obliged this third party
to confidentiality pursuant to the confidentiality provisions in these Terms;
- is to be divulged per definitive or legally binding official or judicial ruling or
law. As soon as he/she is aware of any such reason, the recipient of the information is to
immediately inform the sender of the information.
11.3 Onus of proof of any one of the above mentioned exceptional matters of fact lies
with the respective recipient of information.
11.4 The Contractual Partners are to treat information as confidentially as they would
classified business information. If information is made available to the Contractual Partners'
employees, they avouch that they have bound their employees to a non-disclosure agreement.
11.5 The Contractual Partner who has made information accessible reserves all rights to
the information. Regardless of the contract duration, each Contractual Partner is obliged to use
any information made available to him/her only in accordance with this agreement for an additional
five years.
12 Subsidiary Agreements, Contract Modifications and Addenda, Form
Subsidiary agreements, modifications or addenda to the contract must be made in writing. This
provision on the written form can only be overturned by an agreement in writing.
13 Jurisdiction, Applicable Law, Contractual Language
13.1 Place of jurisdiction for all claims arising from this contract is the respective
court at the place of Nionex's headquarters.
13.2 All business conducted between the Contractual Partners is subject exclusively to
the law of the Federal Republic of Germany under exclusion of the Viennese UNCITRAL Agreement on
Contracts for the International Sale of Goods from 11 April 1980.
13.3 The contractual language is German.
14 General Provisions
14.1 The validity of the contract is not affected by any breach or ineffective provision
in this contract, whether in part or in full, at the present or in the future.
14.2 If the inefficacy is not based on a breach pursuant to §§ 305 ff. German Civil
Code, then instead of the missing or ineffective provision, a provision that comes as close as
possible to the sense and purpose of the ineffective provision shall be deemed agreed upon.
14.3 This contract is, however, ineffective in its entirety if adherence to it would
result in an unacceptable hardship for either Contractual Party even under consideration of the
intended modification pursuant to Section 14.2 of these Terms.
14.4 Place of payment to be issued to Nionex is Gütersloh, Germany.
14.5 The transfer of any contractual rights and obligations to another party requires
written agreement. Corporate affiliated (§§ 15 ff German Stock Companies Act) enterprises of
Bertelsmann AG Gütersloh are not third parties, nor is Bertelsmann AG itself.
14.6 The Contractual Partner agrees herewith that any data made known within the scope
of the contract and business relation in the sense of the German Data Protection Act may be stored
and processed by Nionex or third parties, respectively, if purposeful for the fulfilment of this
contract.
14.7 The English version of these General Business Terms and Conditions is provided for
convenience purposes only. In the case of disputes or claims, the German language version of these
Terms is binding.
Gütersloh, Germany / 2 January 2003
