Terms & Conditions
Last updated: 25 November 2021
These General Terms and Conditions (hereinafter “Terms”), together with the documents referred to herein, set out the terms and conditions upon which nx UG (haftungsbeschränkt), Warschauer Straße 9, 10243 Berlin (“9x”, “we”, “our” or “us”), a company registered in Germany under company number HR B 226519 provide our Services (as defined below) to you (hereinafter also referred to as the “Customer”), and form a legally binding agreement.
9x is offering automation and web/app design, training, consultancy and advisory services to the Customer under the following terms and conditions.
Definitions
“Agreement” means the agreement between 9x and the Customer comprised of these Terms and the other documents referred to in these Terms, including the Order Form.
“Customer” means the organization named as the Customer on the Order Form.
“Fees” means the amount payable by you to us in consideration for our Services, as stated in the Order Form.
“Order Form” means a binding sales order form executed by you and 9x and incorporating the Agreement. In the event of any new or different terms in the Order Form, such new or different terms shall supersede any inconsistent terms in these Terms, but only to the extent of such inconsistency.
“Services” means our training, consulting, and advisory services, along with our automation and our web/ app development and design services for automating processes within the Customer’s organization as described in the Order Form and the project proposal provided by 9x to the Customer.
“Work Product” means any product, including a website, app, software, or automation tool, as a result of the Services provided by 9x. Work Product includes products which are using or based upon third-party tools, platforms or software. Work Products are further described in the Order Form and/or project proposal. Work Products do not include training material, or any other documentation used by 9x to provide training/ consultancy/ advisory Services to the Customer.
“You” means the Customer, their employees, agents, or anyone authorized by 9x to use the Services.
Services provided by 9x; Third-party Services and Platforms
9x provides the Services in accordance with current industry standards using tools available on the market at the time of providing the Services.
To the extent the Services include the development and/or design of web/app technology or automation tools, 9x is free to utilize tools and platforms of their preference to provide such Services, unless stated otherwise in the Order Form or the project description.
The Services may include the development and/or design of a Work Product for the Customer. To the extent the Services include the development or design of a certain Work Product, 9x will provide such Work Product as a product accessible via third-party tools and/or platforms. 9x will not host Work Products on their own. Due to the development and/or design of the Work Products utilizing third-party tools, platforms, software, or services, the Work Product may not be a product which runs by itself (stand-alone) but only in connection with the platform it was built upon and may require a (paid) subscription by the Customer. Further details may be available on the website of the third-party platform used by 9x, as described in the project description.
To the extent stated on the Order Form, the Services of 9x will include training, consulting, and advisory Services. Such Services will be provided in accordance with Section 611 German Civil Code. Section 4 of these Terms does not apply to such Services.
Customer’s Rights and Obligations
The Customer is responsible for making all arrangements necessary to use the Services and the Work Products and for procuring and maintaining all necessary equipment, accounts, and network connections in order to use the Services and any Work Product. In particular, the Customer is responsible for creating and/or registering accounts on platforms necessary for 9x to provide the Services to the extent agreed upon between the parties, or grant 9x the authority to create and register accounts on the necessary platforms on behalf of the Customer. 9x will not sub-contract the third-party services.
Any third-party service necessary for 9x to provide their Services and any Work Product shall be directly subscribed or contracted by the Customer, either by employees of the Customer or by 9x on behalf of the Customer. Save for any individual agreement between the Customer and 9x, to the extent that the Customer has agreed to 9x using a certain platform for providing the Services and/or developing/ designing the Work Product as stated on the Order Form, the Customer hereby authorizes 9x to create and register a business account on behalf of the Customer on such platform, and to subscribe to the third-party services on such platform necessary for 9x to provide their Services and/or developing or designing the Work Product.
Acceptance of Work Products
After completion of the Services, 9x will inform the Customer thereof and provide the Customer with the Work Product. The Customer is obligated to review and accept the Work Product within 14 days, regardless of minor defects which shall be cured by 9x within a reasonable time after the Customer has notified 9x of such defects.
Upon acceptance of the Services and Work Product, any account necessary for using the Services and/or Work Product which has been registered by or on behalf of the Customer will be transferred to the Customer.
Following the acceptance of the Work Product, the Customer will be able to test the Work Product during a testing phase: of 14 days (the “Testing Phase”). During the Testing Phase, 9x will fix any additional error or issue that comes up and did not show up during acceptance. Any additional services to change the final and accepted Work Product will be provided against additional remuneration only which must be agreed upon with 9x prior to such additional services.
After the acceptance, the final Work Product will be provided by the respective third party which provides the underlying framework, software, app, tool, or platform which had been used by 9x for developing/designing the Work Product.
Any changes to the Work Product after acceptance must be made by the Customer or be requested from 9x based on a new Order Form.
Any support request for the Work Product after the acceptance must be made to the third-party the Work Product is based upon or hosted by or may be requested from 9x based on a new Order Form.
Fees and Payment Terms
The Customer is responsible for paying all Fees applicable to the Customer as agreed in the Order Form. Fees are due and payable within 14 days after receipt of the invoice by 9x, unless otherwise stated otherwise in the Order Form.
The Customer shall pay the fees in two or more parts (as further specified in the Order Form or any quotation relating to the Order Form): (i) an upfront payment upon signature of the Order Form and prior to the start of the Services; and (i) the remaining balance upon completion of the Services and acceptance of the Work Product. Any individual agreement on the payment terms, either in the Order Form, project description, or RFQ, shall prevail.
All Fees are exclusive of applicable sales tax, VAT, and any other applicable taxes, unless stated otherwise. The Customer may be charged, and is solely responsible for, all applicable taxes.
Intellectual Property Rights
Rights in 9x Material
9x remains the sole legal owner of any intellectual property and other property right in the training/ consultancy/ advisory documents and related material (the “9x Material”). 9x grants the Customer a worldwide non-exclusive, revocable, and limited right to use the 9x Material solely for the purpose and duration of the training, consultancy, or similar Service as stated in the project description and/or the Order Form.
Rights in the Work Product provided by 9x
Save for the third-party rights stated in Sub-Section 6.3 below and the rights retained by 9x as stated in Sub-Section 6.2.2, 9x hereby grants the Customer the sole, worldwide, perpetual right to use the Services and the Work Product for the purpose described in the project proposal.9x retains a non-exclusive right to use the Work Product in anonymized form to create derivative works, adapt, transform, or otherwise use and exploit the Work Product in anonymized form to create new versions of such Work Product either for 9x or another customer of 9x.
Rights in Third-party Services/IP
All rights in and to third-party software, platform, or tools used by 9x to provide the Services and develop/ design the Work Product remains the property of the respective third-party or their licensors. 9x does neither obtain from such third-party nor grant to Customer any right in such third-party software or other intellectual property. To the extent the Customer subscribes to third-party services, the terms of use/service, licensing terms, or terms of similar nature may apply and will directly be concluded between such third-party and the Customer, and the Customer will directly be granted use rights by the respective third-party to the extent such third-party grants rights of use.
Representations and Warranties
Each party represents and warrants to the other party that: (i) it has full power and authority to enter into the Agreement and to perform its respective obligations under the Agreement; and (ii) it has complied and will continue to comply with all applicable laws, rules and regulations in connection with the execution, delivery and performance of the Agreement.
The above warranty is the sole warranty. There are no other explicit or implied representations or warranties, and no guarantees.
Limitation of Liability
9x shall only be liable for damages caused by intent (Vorsatz) or gross negligence (grobe Fahrlässigkeit). In the event of a slightly negligent (einfache Fahrlässigkeit) breach of a major obligation (Hauptpflicht) or an accessory obligation (Nebenpflicht), whose breach puts the achievement of the contractual purpose at risk or whose fulfilment is essential to the due and proper implementation of the Agreement and on whose fulfilment You can reasonably rely (“Essential Obligation” – Kardinalpflicht), the liability of 9x is limited to the damage foreseeable at the time of conclusion of the Agreement and characteristic for the Agreement (vertragstypischer vorhersehbarer Schaden). 9x is not liable for slightly negligent breaches of accessory obligations that are not Essential Obligations. The limitation of liability under this Section applies accordingly to 9x’s liability (i) for reliance damages (vergebliche Aufwendungen) and (ii) in the event of initial impossibility if 9x was unaware of the impediment to performance due to slight negligence. The above exclusions and limitations of liability shall not apply in the event of malicious concealment of defects or a guarantee as to quality, to the liability for claims under the Product Liability Act (Produkthaftungsgesetz), and to claims based on personal injuries (life, limb, or health). This shall not entail a reversal of the burden of proof to Your disadvantage. To the extent the liability of 9x is excluded or limited, this shall also apply to the personal liability of the 9x’s employees, members of staff, representatives, and vicarious agents. To the extent 9x is liable to You for damages caused by slight negligence which are related to or in connection with this Agreement, the liability of 9x will be limited to the total amount payable by Customer to 9x as stated on the Order Form. 9x’s liability under compulsory statutory law remains unaffected by this maximum liability and is unlimited.
Indemnification
The Customer shall indemnify, defend and hold 9x and its suppliers, partners, agents and contractors harmless from and against any and all losses, damages, claims, liabilities or expenses (including reasonable lawyer’s fees and disbursements) arising out of a claim brought by a third party relating to: (i) Customer’s use of the Services and/or Work Product (except to the extent caused by our gross negligence or willful misconduct) including, without limitation, any employment decisions, financial business, and commercial judgements, and acts or omissions made based on use of the Service and/or Work Product; (ii) any breach of these Terms or any representations, warranties or covenants herein; or (iii) any violation of any applicable law, rule or regulation by Customer or its personnel in connection with the Service and/or Work Product.
9x shall indemnify, defend (or settle), and hold harmless the Customer from and against all claims, suits, liabilities losses, costs, damages, and expenses, including without limitation reasonable attorneys’ fees or expenses (“Losses”), arising out of or related to any third party claim that alleges that the Services or a Work Product infringe any copyright, trade secret, patent or trademark, or any other intellectual property right of any third party brought against the Customer. The Customer shall provide 9x with: (i) prompt written notice of such claim; (ii) control over the defense and settlement of such claim; and (iii) proper and full information and assistance to settle and/or defend any such claim. The foregoing provisions states the entire liability of 9x, and the sole remedy of the Customer, with respect to any actual or alleged claim of infringement or misappropriation of the intellectual property of any third-party.
Confidentiality
The Customer agrees that any and all know-how, ideas, data and all business, or other technical and financial information of 9x is confidential information and property of 9x and/or its suppliers or licensors (“Confidential Information”). Unless expressly and unambiguously permitted, the Customer will treat Confidential Information received from 9x strictly confidential, keep it secret, protect it with reasonable protective measures, and not use, disclose, or pass it on to third parties.
The Customer's confidentiality obligation shall not apply to information which is proven to be generally available to the public (except as a result of a breach of the Agreement), has been subsequently lawfully obtained by the Customer from a third party without a confidentiality obligation, or was already lawfully in the Customer's possession without a confidentiality obligation at the time of disclosure.
Term and Termination
The Agreement becomes effective on the start date stated on the Order Form (or project proposal) or, if no start date is provided, upon signature to the Order Form by the legal representatives of both parties and shall remain in force until completion of the Services and acceptance of the Work Product.
Ordinary termination is excluded. The right to immediately terminate this Agreement for good cause remains unaffected.
Upon termination of the Agreement for any reason, the Customer shall pay all Fees due at the time of termination.
Any notice of termination must be at least in text form (E-Mail suffices).
Miscellaneous
Notices under the Agreement must be sent to info@9x.agency. We may give notice to you at an e-mail or postal address you provide to us. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. Notice will be deemed served and received 24 hours after an e-mail is sent or three days after posting a letter.
Marketing
You grant us the right to use your company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communication, subject to your standard trademark usage guidelines as provided to us from time to time.
Waiver
The failure of 9x to enforce any provision of these Terms shall not be deemed a waiver of such provision nor the right to enforce such provision. Furthermore, any waiver of any provision of these Terms by any party will be effective only if in writing and signed by a party.Assignment, Offsetting, Retention
The rights and obligations under the Agreement are not assignable without the prior written consent of 9x; any attempt to do so is null and void. 9x may assign this Agreement or rights and obligations under this Agreement to third parties.
The Customer shall have a right to offset against claims only if their counterclaim has been established by a final and binding decision or is undisputed. The same shall apply to the right of retention, the valid exercise of which shall further require that the counterclaim of the Customer must arise under the same contractual relationship.
Entire Agreement; Written Form; Amendments, Changes to these Terms
The Agreement is the complete and exclusive statement of each Party’s mutual understanding of the subject matter of the Agreement and supersedes all prior written and oral agreements and communications relating to the subject matter of the Agreement.
Amendments to the Agreement require the unanimous consent of both 9x and the Customer at least in text form.
Governing Law and Jurisdiction
The Agreement is governed by and construed in accordance with German law without giving effect to conflict of laws principles and the UN Convention on the Sale of Goods. Each party submits to the exclusive jurisdiction of the courts in Berlin, Germany.Severability
If one or more provisions of these Terms are invalid, the parties shall agree on a replacement provision that comes as close as possible to the invalid provision. The invalidity of one or more provisions of the Agreement shall not affect the validity of the remaining provisions.
