By placing an order on the Website of Nexxiot, the client (“Client”) agrees to the present terms and conditions (“Terms and Conditions”) with Nexxiot AG, their primary address being at Hardstrasse 201, 8005 Zurich, Switzerland (“Nexxiot”). Both are referred to together in the following as “Parties” or individually “Party”. The parties hereby agree to the following:
Subject of this Terms & Conditions. The order which is placed online by the client on the Website of Nexxiot (“Order”) forms an integral part of this Terms and Conditions.
Order of Precedence. In the event of any inconsistencies between any documents of this Terms and Conditions, the order of precedence is as follows: Order; Terms & Conditions; Operating Manual(s); and other Documentation(s) issued by Nexxiot.
Definitions. The definitions set out in this Terms & Conditions apply to the entire Terms and Conditions and Documentation, unless specifically provided otherwise in said document(s).
Subscription Term. Client subscribes to the Service for a Subscription Term of thirty (30) days, respectively for each Device unless specifically provided otherwise in the respective Order.
Delivery. Number of Devices and delivery address are specified by the Order. Unless otherwise agreed, DDP Incoterms 2020 will be applicable.
Client’s Limited Right to Use / License. Subject to this Terms and Conditions, Nexxiot grants Client a worldwide, limited, non-exclusive, non-transferable, non-sublicensable license to use Nexxiot’s Services for the Subscription Term with the type(s) of Devices and number of Assets as specified by the Order.
Access to Services / Internet Connectivity. Client only accesses the Services via its web browser and/or the Nexxiot App. It is Client’s sole responsibility to procure the systems, installations, hardware (including end-user hardware, such as computers or smartphones), and software required to access the Services.
Approved Contractual Purpose / Applicable Laws / Documentation. Client shall use the Services only for the Approved Contract Purpose and in accordance with applicable laws, this Terms and Conditions and the Documentation. Nexxiot may communicate such Documentation to Client in writing or via e-mail before the first delivery of Devices under any Order and may notify Client of updates and supplement Documentation via e-mail from time to time.
Validity. Upon receiving an Order, Nexxiot shall promptly generate an order confirmation (“Order Confirmation”), which will be sent to the Client via electronic means, such as email, and shall include the details of the order. The order becomes legally binding for both Parties immediately upon its submission through the online platform. Nexxiot reserves the right to make corrections to the Order Confirmation in the event of typographical errors, inaccuracies, or omissions and shall promptly communicate such corrections to the Client.
Further Restrictions. Client shall not (a) grant access, make any Services available to or use any Services for the benefit of anyone except those who have been authorized by Client to use the Services in accordance with this Terms and Conditions, which include Client’s employees, consultants and/or customers, (b) license, sublicense, rent or lease any Service, (c) use a Service to store or transmit infringing, libellous, or otherwise unlawful material, or to store or transmit material in violation of third party privacy rights, (d) access or use any of Nexxiot’s IP Rights except as permitted under this Terms and Conditions, (e) frame or mirror any part of any Services, other than framing on Client’s own intranets or otherwise for Client own internal business purposes or as permitted in the Documentation, or (f) unless permitted by applicable law copy, change, open, disassemble, reverse engineer, or decompile the Services or parts thereof including the Devices, and/or any of the Software Components, in particular, but not limited, to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Services, or (3) copy any ideas, features, functions or graphics of the Services. Any use of the Services in breach of the contractual obligations that in Nexxiot’s reasonable judgment threatens the security, integrity or availability of Nexxiot’s services may result in Nexxiot’s immediate suspension of the Services; additional rights and claims of Nexxiot against Client resulting from such breach remain unaffected. Nexxiot will use commercially reasonable efforts under the circumstances to provide Client with notice and an opportunity to remedy such violation or threat prior to such suspension.
Payment. Client shall pay the fees specified by the Order in the process of placing the Order, but in all cases prior to the commencement of the Services.
Additional Invoices. If additional costs arise that need to be borne by the Client according to this Terms and Conditions or as agreed otherwise, the respective invoices shall be due, for payment in full within thirty (30) days of the date of invoice, unless otherwise agreed in writing.
Ownership of Data. Ownership of all Data lies with Nexxiot.
Right to Use Data. Nexxiot grants Client a worldwide, non-exclusive and perpetual right to use Data during the term of this Terms and Conditions. The use of such Data does not entitle Client to any rights to Nexxiot’s databases or algorithms, nor does Client acquire any ownership rights in or related to such databases and algorithms.
Devices. The Devices become property of the Client with the executed payment for the Devices.
Operating Manual. Upon delivery of the first batch of Devices, Nexxiot will provide Client with an Operating Manual in English for the installation of the Devices. Nexxiot grants Client the right to use such Operation Manual, make physical and/or electronic copies of the Operating Manual, and to make available such copies to those responsible for the installation and operation of the Devices.
Mounting Material. Unless otherwise specified by the Order, no mounting materials or equipment shall be provided.
Handling of Devices. Client will handle the Devices with due care and diligence. Client is responsible for any loss of and damages to the Devices that have been provided by Nexxiot to the Client.
Taxes. The Client pays any fees and remunerations plus applicable statutory value-added tax (VAT) or other taxes assessable by any jurisdiction whatsoever. The Client is responsible for paying such taxes associated with Orders.
Nexxiot App. Subject to this Terms and Conditions, Nexxiot grants Client a limited non-exclusive, non-transferable license during the applicable Subscription Term and in accordance with the Approved Contract Purpose to use and store the Nexxiot App.
App Store. The Nexxiot App will be provided via the public Google Play Store. It is Client’s responsibility to (a) access the Google Play Store or Apple App Store and (b) download, install, and use the Nexxiot App as specified and updated by Nexxiot from time to time.
Firmware of Devices. Any and all firmware that is used within or employed in connection with the Devices may only be used by Nexxiot. Client does not obtain any rights to access or use such firmware other than for the installation of the Devices as may be specified in the Operating Manuals or Documentation. Client shall, unless permitted by applicable law, not change, open, reverse engineer or otherwise manipulate the Devices or any of their Software Components.
No Rights to Source Codes. Client shall not get access to or otherwise receive or inspect, the source codes of the Services, the Software Components or parts thereof.
No Unauthorised Access or Use. Client shall (a) be responsible and liable to prevent unauthorised access to or use of the Services and notify Nexxiot promptly of any such unauthorised access or use, (b) not use the Services in any manner that could damage, disable, overburden or impair the Services, including the Devices, (c) not use the Services for any unlawful purposes, and (d) comply with the terms of service or other agreements of other applications (web-based, mobile-based or offline), including the installation of updates, that interoperate with the Service.
Compliance with Terms and Conditions. Client will be responsible and liable for compliance with this Terms and Conditions and any breach thereof by anyone to whom Client gives access to the Services or the Devices, including without limitation, for example, Client’s employees, directors, contractors, and consultants.
Use of subcontractors. To the extent that Nexxiot uses subcontractors for the provision of its Services, Nexxiot shall be responsible and liable for their performance.
Business Liability Insurance. Nexxiot undertakes to conclude customary business liability insurance with a minimal coverage of CHF 1 million (1,000,000).
Information Security. During the term of this Terms and Conditions, Nexxiot shall maintain ISO 27001 and 9001 certifications and security controls consistent with such certifications.
No Storage of Data. Except as expressly set forth herein, Nexxiot is under no specific custody obligation regarding Data and is not obligated to store or otherwise maintain Data beyond the respective Subscription Term.
Start of Subscription Term. Except as otherwise specified by the Order, the Subscription Term starts at the earlier of (a) pairing of the Device with the relevant Asset(s) or (b) 1st of the following month of delivery of the Devices.
Limited term. This Terms and Conditions ends upon expiration of the Subscription Term as defined by Section 2.1.
Immediate Termination for Unpaid Invoices. Nexxiot may terminate this Terms and Conditions and all Orders immediately if Client has unpaid invoices which are more than fifteen (15) days overdue.
Termination for Cause. The right of each Party to immediately terminate any Order for good cause remains unaffected. A termination for good cause shall in particular be:
for Nexxiot, if there is cause for concern that Nexxiot’s business interests could be impaired;
for Nexxiot, in the event that the continuation of this trial fails to serve its purpose due to a lack of business prospects;
for a Party, if an application to open an insolvency proceeding or a comparable proceeding regarding the assets of the other Party is filed and not rejected by the insolvency court or withdrawn within two (2) months after the filing of the application or if the opening of the insolvency proceeding is refused due to the absence of assets;
for a Party, if the commercial or financial relationships of the other Party deteriorate to such an extent that a proper fulfillment of the relevant Order appears to be seriously threatened;
for a Party if the other Party has materially breached any of its contractual obligations; or
for Nexxiot, if Client uses the Services, including the Devices, contrary to the Approved Contract Purpose or beyond the Approved Contract Purpose.
Effects of Termination for Cause. In case this Terms and Conditions is terminated according to section 9.4, the following consequences shall be applicable: All licenses to use Nexxiot Software shall be ceased by immediate effect. In case the Devices are still in the possession of Nexxiot, the paid amount shall be remunerated to the Client. If the Devices are no longer in Nexxiot’s possession, the Client shall, by Nexxiot’s option, either (i) decline the delivery of the Devices so it is returned to Nexxiot, (ii) return the delivered Devices to a location named by Nexxiot at Client’s cost, or (iii) destroy the Devices with written confirmation. Only after the Devices have been received by Nexxiot shall the remuneration be issued to the Client, with a reasonable deduction of the costs incurred by Nexxiot for the provision of Services and return of Devices.
Written Form. Any termination of this Terms and Conditions shall be made in writing and signed by authorized representatives of the terminating Party to be valid.
Surviving Provisions. Sections 4.1, 10, 11, 15, and 16 remain unaffected by the termination of this Terms and Conditions.
Open claims not affected. The termination of this Terms and Conditions shall not affect any open claims of a Party which have occurred or come into existence during the term of this Terms and Conditions and the respective Order.
Responsibility for Personal Data. The Client shall be solely responsible for the permissibility of the collection, processing, and use of the personal data provided by Client. To the extent that Nexxiot collects, processes (including the transfer itself), or uses personal data within the meaning of the applicable data protection regulations, provided by Client (“Personal Data”), Client agrees and warrants that the collection, processing, and use of Personal Data have been and will continue to be carried out in accordance with applicable data protection law.
Each Party shall keep secret and confidential the content of this Terms and Conditions and Documentation as well as any information, materials, and documents disclosed by or on behalf of the other Party and/or any of the other Party’s Affiliates in connection with this Terms and Conditions whether disclosed orally, in writing or in any other manner including, but not limited to, software, data, drawings, drafts, plans, prices, descriptions, specifications, calculations, know-how, experiences, procedures, samples, programs, materials, including the studies, analyses and/or copies based hereon (“Confidential Information”), use such Confidential Information exclusively for the Approved Contract Purpose] and not disclose Confidential Information, neither directly nor indirectly, to any third parties. The disclosure of Confidential Information to third parties shall only be permitted with the other Party’s prior written consent. Disclosed Confidential Information remains exclusive and sole property of the disclosing Party. Any more extensive confidentiality obligations or restrictions of use existing under statutory law shall remain unaffected.
The obligations of Section 11.1 shall not apply to Confidential Information (or parts thereof) to the extent the receiving Party can prove that this (part of) Confidential Information
was already known by the receiving Party prior to disclosure by the disclosing Party;
was already publicly known or generally accessible prior to disclosure by the disclosing Party;
was made publicly accessible after the disclosing Party’s disclosure with no action or fault of the receiving Party;
was acquired by the receiving Party from a third party without restrictions or breach of this Terms & Conditions or any other confidentiality obligation;
was developed or was commissioned for development by the receiving Party independently of knowledge of the Confidential Information;
was remitted to the receiving Party being under an obligation to disclose on the basis of a final decision of a public authority or legally valid judicial decision or due to mandatory law, provided, however, that the receiving Party (1) to the extent legally permissible, has informed the disclosing Party of this obligation in advance and its intention of disclosing the Confidential Information in order to grant the disclosing Party a reasonable opportunity to take suitable protection measures and (2) thereafter only discloses such Confidential Information which is required to meet the respective obligation, regardless of whether or not the disclosing Party has taken respective protective measures.
All rights to Confidential Information remain with the disclosing Party, unless and to the extent otherwise agreed in this Terms and Conditions or by later explicit agreement.
The Parties shall disclose Confidential Information only to such of their respective employees, other workers, advisers and other persons working in any other manner for the Party who are involved in the performance of the Terms & Conditions and the Order on a need-to-know basis and who were instructed on the content of this Section 11 and obligated to confidentiality accordingly. The respective Party shall procure compliance of such persons with the obligations under this Section 11. The same shall apply to any third parties (in particular installers involved by the Client) which are involved by a Party in the performance of this Terms and Conditions.
The obligations under this Section 11 shall remain in force and effect during the term of this Terms and Conditions and for a further period of five (5) years following the termination or expiration of the last Order.
Representations. Each Party represents that it has validly entered into this Terms and Conditions and the Orders and has the legal power to do so.
Replacement of Devices. The Client shall return any Devices found to be defective to Nexxiot at a specified location, in accordance with DDP INCOTERMS 2020, whenever feasible. In cases where a Device's malfunction obstructs access to the Services, Nexxiot retains the discretion to choose whether to repair or replace the Device. It is the Client's responsibility to carry out the uninstallation of the defective Device and to facilitate the installation of the repaired or replacement Device in a timely manner.
No warranties to Third Party Content. Third Party Content is provided “As Is,” exclusive of any warranty whatsoever to the maximum extent permitted by applicable law.
Compliance with Trade Embargoes: Nexxiot shall not be obligated to deliver Devices or provide Services to countries subject to trade embargoes, nor is it required to fulfill orders if the Client becomes subject to an embargo before or during this Terms and Conditions.
Nexxiot remains the owner or licensee of any and all IP Rights relating to the Services, in particular, but not limited to, the Devices and the Software Components.
To the maximum extent permitted by law, Nexxiot shall not be liable to Client, irrespective of the legal grounds for any direct, indirect or consequential losses or damages of any kind arising out of or in connection with this Terms and Conditions or Documentation; in particular shall Nexxiot shall not be liable to Client for (i) loss of profit, revenue, anticipated savings, opportunity, (ii) contractual penalties or other liquidated damages payable by Client to third parties, (iii) loss, destruction or corruption of data, and (iv) loss of goodwill.
Nexxiot’s collective total liability to Client, irrespective of the legal grounds, whether due to breach of contract or tort, including negligence or otherwise arising out of or in connection with this Terms and Conditions and Documentation shall not exceed the amount paid by Client to Nexxiot under the relevant Order for which the liability arises.
The limitations and exclusions of liability set forth in this Section 14 shall not apply
for damages, which are caused intentionally or by gross negligence,
for defects which Nexxiot maliciously concealed from Client,
for claims according to product liability law (based on the Swiss Product Liability Act, PrHG ), and
for claims in case of damages to persons (injury of life, body, and health).
Nexxiot’s liability for damages arising out of any defects of the Services existing on the subscription start shall be excluded.
The limitations and exclusions of liability set forth in this Section 14 shall apply accordingly to any personal liability (if any) of Nexxiot’s representatives, staff, employees, workers, representatives, agents, and subcontractors.
To the maximum extent permitted by law, any claims brought by Client arising out of or in connection with this Terms and Conditions shall be time-barred upon the lapse of twelve (12) months after their respective occurrence.
Written form. The Order and the Terms & Conditions are also valid if the Client places an order online as described in Section 1.2 or if the Parties sign any documents electronically (e.g., Adobe E-signature). The electronic signature is equivalent to the handwritten signature of both Parties. Amendments and supplements to this Terms and Conditions or any part thereof, including any change, cancellation, waiver, or amendment of shall require the written form signed by both Parties to be valid.
Implied Licenses. There are no implied licenses under the terms set forth in this Terms and Conditions and Documentation, and any rights not expressly granted hereunder are reserved by Nexxiot, Nexxiot’s suppliers or licensors.
Waiver. No waiver by either Party of any breach or default under this Terms & Conditions or the Orders shall be deemed a waiver of any preceding or subsequent breach or default.
Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either Party may assign this Terms and Conditions, without the other Party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Furthermore, Nexxiot may assign Nexxiot’s rights under this Terms and Conditions for financing purposes without Client’s consent.
Relationship of the Parties. The Parties are independent contractors. This Terms and Conditions does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
Third Party Beneficiaries. There are no third party beneficiaries under this Terms and Conditions.
Governing Law. This Terms and Conditions as well as any legal relationships between the Parties arising out of or in connection with this Terms and Conditions as well as any ancillary transactions shall be exclusively governed by and construed in accordance with the laws of Switzerland excluding the provisions under conflict of law rules and further excluding the Convention on the International Sale of Goods (CISG).
Jurisdiction. Any disputes, controversies or claims arising from or in connection with this Terms and Conditions (including questions concerning their implementation) shall be submitted to the exclusive jurisdiction of the competent courts of Zurich, Switzerland. In addition, Nexxiot shall be entitled to sue the Client in courts having jurisdiction at the Client’s principal place of business.
Severability. In case any provision of this Terms and Conditions should be or become in the future invalid or unenforceable, the remaining provisions of this Terms and Conditions shall remain in full force and effect. The Parties already agree that the respective invalid or unenforceable provision shall be deemed replaced by such valid provision which comes as close as possible to the legal and commercial intention and purpose of the relevant invalid or unenforceable provision. The same shall apply in case of any unintended gaps in this Terms and Conditions.
Force Majeure. If and to the extent that a Party’s performance of any of its obligations pursuant to any Contractual Document is prevented, hindered or delayed by fire, flood, earthquake, elements of nature or acts of God, acts of war, pandemics, acts or attempted acts of terrorism, riots, civil disorders, rebellions or revolutions, strikes or other work stoppages, or any other cause beyond the reasonable control of such Party (each, a “Force Majeure Event”), then the non-performing, hindered or delayed Party will be excused for such non-performance, hindrance or delay, of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues and such Party continues to use reasonable efforts to resume performance to the extent reasonably possible.
Sanctions / Export Control. Nexxiot reserves the right in the event of international sanctions or other legal restrictions (e.g. export control regulations) imposed by the United Nations, the United States, Switzerland or the European Union to restrict or temporarily suspend certain Services in countries or for Clients affected thereby.
Any capitalized terms not otherwise defined in the Terms & Conditions shall have the meanings set forth below or in the Order:
Affiliate of a Party shall mean any other legal entity that directly or indirectly controls, is controlled by, or is under common control with such Party, for as long as such control exists. “Control”, “controlled by” and “under common control” refers (i) to the ownership, directly or indirectly, of more than fifty percent (50%) of the outstanding voting securities or the capital stock of, or other comparable equity or ownership interest in the respective legal entity, or (ii) in the absence of such ownership interest, to the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the respective legal entity, by contract or otherwise.
Approved Contract Purpose: Unless otherwise agreed the usage of the Services and Devices is limited to a trial kit. As such, the Client is granted usage for a limited time and to a limited number of Devices to assess and confirm the value, feasibility, and suitability of Nexxiot's Service and Devices. Namely, the long-term implementation and commercial use of the Devices is not within the contract purpose.
Assets: Client’s assets (e.g., cargo wagons), which have been equipped with Nexxiot’s Devices.
Confidential Information: As defined in Section 11.
Data: Shall mean any data relating to Assets that are transmitted, or otherwise received by a Device installed onto Assets or otherwise collected by Nexxiot through its Devices in accordance with the Order(s).
Devices: Nexxiot’s hardware intended to be installed onto Assets and used to collect data relating to the Asset’s behaviour.
Documentation: The Operating Manual, tutorials, technical documents, user manuals, and help and training materials provided by Nexxiot to Client.
IP Rights: shall mean all rights in (a) patents, patent registrations, patent applications, and inventions and all rights therein, (b) trademarks, product names, service marks, logos, whether or not registered, and registrations and applications for registrations thereof, (c) copyrights (including in any software), semi-conductor topography rights, rights of extraction relating to databases, and all other similar proprietary rights which may subsist in any part of the world, (d) all rights in World Wide Web addresses, URL's and domain names and applications and registrations therefor, and trade secrets and confidential, technical or business information including know-how, manufacturing and production processes and techniques.
Nexxiot App: App to pair the Devices and access instructions to mount the Device in the form released by Nexxiot from time to time.
Operating Manual: An electronic instruction document which explains how to install the Devices onto the Assets, access the interfaces, the web portal, and the Nexxiot App.
Personal Data: As defined in Section 10.1.
Services: Means the products and services ordered by the Client under the Order(s) and made available by Nexxiot to Client.
Software Components: Mean the software or firmware or Nexxiot App or parts thereof which Nexxiot chooses to employ or use to render Services.
Subscription Term: As defined by the Order or Section 2.1.
Terms and Conditions: As defined in Section 1.1.
Third Party Content: Means information obtained by Nexxiot from publicly available sources or third party content providers and made available to Client through the Services.
