General terms and conditions for the use and provision of the Software "nextMO" as-a-Service

November 2023

1 Scope

1.1. For the business relations between the customer and nextMO GmbH, Lindberghring 1, 33142 Büren (in the following: nextMO), the following terms and conditions shall apply in regard to the ser-vices of nextMO (hereinafter: General terms and conditions or terms and conditions of use).

1.2. Only entrepreneurs as defined in Section 14 of the German Civil Code (§ 14 BGB) can become customers. nextMO does not conclude contracts with consumers.

1.3. NextMO does not recognize any general terms and conditions of business or contract of the customer that conflict with or deviate from these GTC unless their validity is expressly agreed to in writing. These GTC shall also apply if nextMO performs the service to the customer without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from these terms and conditions.

2 Terminology

2.1. "Services" means the services of the nextMO provided as Software-as-a-Service.

2.2."Customer" means the legal entity that is provided with the services by nextMO and uses them to process business transactions

2.3. "Employee" or "employees" are employees of the customer.

2.4. "Users" are employees or persons authorized by the customer who have a login for nextMO.

2.5. The "product description" contains information on the characteristics and functionality of the services.

2.6. The "User documentation" explains to users how the services work and how they can be used.

2.7. "Support times" are standard support times. This refers to the time window in which nextMO offers first, second and third level support. These apply to the location 33142 Büren, North Rhine-Westphalia, Germany from Mon-Fri from 9 a.m. to 5 p.m., but not on public holidays.

2.8. "Online subscription" are subscriptions that can be ordered directly online.

2.9. "Enterprise subscription" are subscriptions, for which nextMO first creates an individual offer, which the customer can accept.

2.10. "Billing period" is the period stated on the invoice, starting from the calendar day on which the contract was concluded.

2.11. "Patches" are correction deliveries for the services to fix bugs (defects) of the contractually owed services.

2.12. "Updates" are technical and/or functional adaptations and developments to the services, which improves the functions of the previous standard software.

2.13. "Features" are technical and/or functional developments of the features of the services.

2.14. “Release” is a revised version of the services, the patches, updates and/or new features.

2.15. "Software-as-a-service" is a licensing and distribution model, the software applications over the internet, i.e., as a service, will be offered.

2.16. Condition Monitoring is a service for regular to continuous monitoring of the condition of a machine or plant to the customer.

3 Object of the contract

3.1. nextMO has developed and implemented the "nextMO" services, which provide solutions for simulation, planning and optimization in production as software as a service. An essential part is the optimization of common production values such as set-up times or processing times.

3.2. nextMO provides customers with the services in the form of Software-as-a-Service (SaaS) for use as well as the required storage space on its server. The services, including storage, are hosted by nextMO. The respective users can access the services via telecommunication connections (Internet) and use their functionalities within the scope of this contract.

3.3. Unless otherwise agreed upon in writing, nextMO shall provide services exclusively on the basis of the respective offer or contract in conjunction with these GTC. The provisions of the concluded contracts shall take precedence over these GTC. Services provided by nextMO within the framework of pre-contractual obligations shall also be subject to these GTC. The resulting rights and obligations of the parties are regulated below.
Benefits of nextMO in the context of pre-contractual obligations under these terms and conditions.
In the following, the resulting rights and obligations of the parties are regulated.

4 Benefits of nextMO GmbH

4.1. nextMO has developed and implemented the "nextMO" services and makes them available to customers for use via a web browser. A physical transfer of the service(s) to the customer does not take place.

4.2 The services provided to customers by nextMO support production processes. The complete service descriptions can be found in the product description, which can be accessed at https://www.next-mo.ai/leistungsbeschreibung or from individual offers.

nextMO offers, among other things, the following service modules:

4.2.1 Simulation for the optimization of the production planning

4.2.2 Optimizer

4.2.3 Condition Monitoring

4.3. nextMO hosts the Services and the associated data. The hosting is one of the requirements of the corresponding nextMO Cloud within the Federal Republic of Germany.

4.4. nextMO created a user documentation. This user documentation is located in the services and is also available online in the browser.

4.5. nextMO is the responsibility of the maintenance of the services, this in a function and receive a contractual condition. For this purpose, ordinary maintenance work, and applying the necessary patches, as well as the elimination of defects in accordance with clause 11.

4.6. nextMO shall not be liable to expressly provide for the provision of customization, consulting and/or training services, unless those services are to be separately been agreed between the parties.

4.7. nextMO may update the services at any time, as well as continue to develop and, in particular, due to a change in the law, technical developments, or for the improvement of IT security to adapt. nextMO will take into account the legitimate interests of the client in an appropriate way. In the event of a significant impairment of the legitimate interests of the customer, a special notice for this right.

4.8. nextMO will make the state-of-the-art measures for the protection of data of the customers in the services, in particular, only people will be using to carry submitted in writing to the compliance with data protection regulations.

4.9. The rights of use are governed by section 8 of the contract.

4.10. The fees shall be subject to section 10 of the contract.

5 Support

nextMO shall set up a support service for customer inquiries regarding the functions of the Services. Inquiries can be made using the support form available in the services. Inquiries are usually sorted according to urgency and then processed in the order in which they are received.

6 The conclusion of a contract for services

The contract is concluded either via an online order form or by accepting (at least in text form) an individually created offer. If the customer uses the online order form, the customer selects the desired subscription depending on the desired scope of services and applies for access and the contract with the subscription. nextMO accepts the application by providing the service.

7 Application for registration of the customer to use the Services

7.1. Customers must be registered by an authorized person in order to use the services. A secure password must be created and protected against unauthorized access by third parties.

7.2. The customer will keep its billing and payment data is always up to date and correct.

8 Licenses

8.1. nextMO grants the customer the non-exclusive, non-transferable right, limited in time in accordance with section 14, to access the services by means of telecommunications connections (via the Internet) and to use the functionalities associated with the services in accordance with this contract for its own business purposes or for the business purposes of companies affiliated with the customer within the meaning of section 15 of the German Stock Corporation Act (AktG) by means of an up-to-date browser. The customer shall not receive any further rights unless the parties have agreed otherwise in writing.

8.2. The customer is not entitled to use the services beyond the use permitted in accordance with this contract or to have them used by third parties; in particular, the customer is not permitted to reproduce, sell or transfer the services or parts thereof for a limited period of time, in particular not to rent them out or grant rights to them in any other way, to reproduce them publicly or make them accessible by wire or wireless means or to make them available to third parties for a fee or free of charge.

9 Special obligations of the customer

9.1. The customer is obligated,

9.1.1. to protect the usage and access authorizations assigned to him/ her as well as identification and authentication safeguards against access by third parties and not to pass them on to unauthorized users;

9.1.2. not to use the services contrary set forth in paragraph 8 rules

9.1.3. not to misuse the services or allow them to be misused,

9.1.4. to ensure compliance with all legal data protection provisions, in particular of the rights of third parties to the data that the customer uploads to the services, or the provision of causes,

9.1.5. to refrain from attempting to retrieve information or data without authorization, either themselves or through unauthorized third parties, or to intervene in services operated by nextMO, or to have them intervene, or to penetrate nextMO's data networks without authorization;

9.1.6. to indemnify nextMO from all claims of third parties that are based on an unlawful use of the services by the customer or are made with the customer's approval or that arise in particular from copyright or other legal disputes associated with the use of the Services. If the customer recognizes or must recognize that such an infringement is imminent, there is an obligation to inform nextMO immediately;

9.1.7. to inform nextMO immediately of any dysfunctions of the Services occurring from its point of view, stating the malfunction existing from its point of view, at least in text form (e-mail) to Support (support@next-mo.ai);

9.1.8. to back up the data transmitted to nextMO as well as the analyses and results regularly and in accordance with the risk and to create its own backup copies in order to ensure the reconstruction of the data and information in the event of loss.

10 Consideration of the customer: - use fee, pay for performance enhancements

10.1. TThe customer shall pay the following fees in return for the services to be provided by nextMO in accordance with this contract and the authorization to use the services:

10.1.1. Depending on the selected subscription, the basic fee must be paid (license price). Online subscriptions are payable monthly in advance, enterprise subscriptions depending on the agreement between the parties.

10.1.2. The license fee is waived if the "Free" subscription is chosen for the agreed upon duration.

10.1.3. nextMO shall automatically offset any contractual penalties due, in accordance with 12.7, against the fee to be paid on a monthly basis.

The prices for the online subscriptions as well as the general hourly prices are based on the price list valid at the time of the conclusion of the contract or change of tariff, which can be viewed at any time on the nextMO website, e.g. at https://www.next-mo.ai/preisliste. If the parties have agreed on different prices, these shall apply.

10.3. The consideration is due immediately after invoicing. The invoice shall only be made available electronically and, depending on the selected payment method (see 10.1.2), online in the services. The customer is responsible for compliance with retention obligations (e.g. pursuant to Sections 238, 257 HGB, Section 147 AO). If payment is not made 14 days after the due date, nextMO may block the customer's access to the services.

10.4. If the customer has selected SEPA direct debit as the payment method and the direct debit is not successful due to insufficient funds in the account, nextMO may charge a processing fee of EUR 15 for the new direct debit. Further default costs or claims for damages remain unaffected.

10.5. If nextMO develops and implements new features and functions in the Services, nextMO reserves the right to only make these available for use in return for additional usage fees. nextMO shall submit a corresponding offer for use to the customer in this case.

10.6.All prices shown in the price lists and offers are net prices in euros plus the applicable statutory VAT.

11 Warranty

11.1. If nextMO becomes aware of a possible malfunction of the services, nextMO shall as a rule inform the customer electronically - unless the information was provided by the customer itself - and rectify the malfunction within a customary, reasonable period of time in accordance with the type and severity of the malfunction.

11.2. A malfunction of the services exists if the services do not fulfill the functions specified in the product description, if data processing breaks down in an uncontrolled manner or if the services do not function properly in any other way so that the services are not suitable for use in accordance with the contract. The warranty for only insignificant reduction in the suitability of the service is excluded. Strict liability pursuant to Section 536a (1) BGB for defects that already existed when the contract was concluded is excluded.

11.3. Claims resulting from the warranty obligation are subject to a limitation period of one year from the start of the statutory limitation period. The provision in clause 13 is not affected by this.

11.4. In all other respects, the statutory regulations apply.

12 Availability, Maintenance, Troubleshooting Time

12.1. nextMO ensures the availability of the services of 98.5% is added to the calendar month at the delivery point. The delivery point is the router output of the data center used by nextMO.

12.2. Availability is deemed to be the customer's ability to use all main functions of the services. Maintenance times as well as times of disruption while adhering to the rectification time are considered times of availability of the services. Times of insignificant disruptions shall not be taken into account when calculating availability. The measuring instruments of nextMO in the data center are decisive for the proof of availability.

12.3. Unless immediate maintenance work is unavoidable, maintenance work that affects the functionality of the services shall be carried out outside service hours and the customer shall be informed of such maintenance work in advance within the services. nextMO shall be obliged to notify the customer of any foreseeable restrictions on use; notices in the services shall suffice for this purpose.

12.4. NextMO will also rectify serious faults (the use of the services as a whole or a main function of the services is not possible) outside service hours within four hours of receipt of the notification of the fault at the latest - provided the notification is made within service hours (rectification time). If it is foreseeable that it will not be possible to rectify the fault within this period, nextMO shall inform the customer of this immediately and notify the customer that the time period is likely to be exceeded.

12.5. Other significant disruptions (main or secondary functions of the services are disrupted but can be used; or other not merely insignificant disruptions) will be rectified within 12 hours at the latest within the service hours ("repair time").

12.6. The elimination of insignificant disruptions is at the discretion of nextMO.

12.7. NextMO shall be liable to pay a contractual penalty of EUR 0.80 for each full hour of shortfall in the monthly guaranteed availability of the services. The amount of the contractual penalty is limited to 70% of the remuneration owed for the month.

12.8. Any other legal claims of the customer against the provider shall remain unaffected.

13 Liability of nextMO GmbH

13.1. nextMO shall be liable without limitation for damages caused by itself, its employees and vicarious agents intentionally or through gross negligence, in the event of fraudulent concealment of defects, in the event of the express assumption of a guarantee and for damages resulting from injury to life, limb and health.

13.2. For other damages nextMO shall only be liable, if an obligation is violated, the fulfillment of which makes the proper execution of the contract possible in the first place and on compliance with which the customer may normally trust (cardinal obligation). The obligation to pay damages is limited to such damages, which are regarded as typical of the contract and foreseeable. Any liability under the product liability law remains unaffected. One that goes beyond the Aforementioned liability of the nextMO, to the extent permitted by law, excluded.

13.3. nextMO shall not be liable for loss of profit, missed savings, indirect damages and consequential damages.

14 Terms of the contract, up - and downgrade rates, termination

14.1. The contract for online subscriptions will be closed for an indefinite period and can be terminated by both parties with a notice period of one month from the end of the accounting period. Enterprise subscriptions will be closed for a period of 24 months and will be extended by 12 months, if not terminated 3 months before the expiry of the term of the contract.

14.2. Notice of termination can be given in writing or in text form by e-mail to customer service (support@next-mo.ai).

14.3 Notifications sent by nextMO to the customer are sent by e-mail to the e-mail address stored with the user who has the "owner" authorization. If several users have this authorization, it is sufficient to send the declaration to one of these users.

14.4. TThe customer can only change the booked subscription to a subscription with less service (downgrade) at the end of the respective billing period or contract term.

14.5. It is possible to switch to a subscription with more services in the respective billing period at any time (upgrade). In this case, the price for the higher subscription plan will be charged on a daily basis from the date of the change and payments made up to that point will be credited.

14.6. The right to extraordinary termination for good cause remains unaffected for both parties.

14.7. nextMO shall delete all customer data remaining on its servers 30 days after termination of the contractual relationship. There is no right of retention or lien on the data in favor of nextMO.

15 Amendments to the general terms and conditions

15.1. nextMO reserves the right to amend the General Terms and Conditions with effect for the future, in particular in the following cases:

15.1.1. If and to the extent that the market situation has changed in a reasonable manner from nextMO's point of view after conclusion of the contract, nextMO reserves the right to amend the General Terms and Conditions with regard to the monthly costs in a manner that is reasonable for the customer; this therefore particularly includes possible, moderate price increases.

15.1.2. If nextMO wishes to improve, expand or change the offer and services in favor of the customer, nextMO reserves the right to change the General Terms and Conditions.

15.1.3. nextMO reserves the right to amend the General Terms and Conditions if legislation or case law make it necessary to do so.

15.2. If the General Terms and Conditions are changed, customers will be informed of the changes on the website and by e-mail. The customer may expressly object to the changes to the General Terms and Conditions within four weeks of receipt of the information about the change to the General Terms and Conditions.

15.3. If the customer does not object within four weeks of receipt of the information about the changes, the changes to the General Terms and Conditions shall take effect for the future (so-called fictitious declaration of consent). The customer will be informed of this effect of consent separately in the information about the change.

15.4. If the customer objects in due time, the contract shall be continued under unchanged conditions. In the event of a significant adverse effect on the legitimate interests of nextMO, nextMO shall be entitled to an extraordinary special right of termination.

16 Final provisions

16.1. The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

16.2. Changes or additions to this agreement are effective only if you are agreed to in writing, unless the contract itself provides a different Form. In particular, the written form clause, however, applies for the Amendment of the written form clause itself.

16.3. A provision of this contract is not effective, this shall not affect the validity of the remaining provisions. Instead of the ineffective provision by an effective provision whose effect is the economic objective of this contract to the next, which had been pursued by the parties with the invalid provision. The same applies in the case of a loophole in the Contract.

16.4. The exclusive place of jurisdiction for all disputes arising from this contract is Paderborn. The same shall apply if the contractual partner has no general place of jurisdiction in Germany or domicile or the usual place of residence is not known at the time the action is filed.

Status: 16.11.2023