General Terms and Conditions FarmFacts GmbH

FarmFacts GmbH (hereinafter "Company") offers digital farming solutions. In addition to a cloud-based internet portal "Next Farming LIVE" containing various purchasable and rentable applications, this also includes the desktop software "NEXT Farming OFFICE", services related to field management "NEXT Farming SERVICE", and combined service packages that combine software, hardware and services "NEXT Farming PACKAGE" (hereinafter „Offered Services“).

 

All FarmFacts GmbH Offered Services are governed by the following terms and conditions (Part A). Special conditions additionally apply for certain Offered Services (Part B).

These conditions do not apply to consumers as defined in § 13 BGB of the German Civil Code (BGB). The validity of any terms and conditions of the contracting party („Customer“) is expressly excluded, even without explicit objection of the Company.

 

  1. General Conditions

 

1.  Conclusion of Contract
The contractual relationship shall begin with the Company’s acceptance of the Customer’s contractual declaration, but at the latest – as far as applicable -  with the Company sending or activating the software.
 

2. Services Provided by Third Parties
The Company is entitled to appoint third parties with the provision of services due under these terms and conditions as well as under the terms of use applicable for the individual applications. More specifically, the Company is entitled to assign all of the services to be provided to the Customer to a third party. Insofar as data protection consent or agreements are necessary for this purpose, the assignment will only take place if such consent has been provided.
 

3. Pricing
Quoted prices are non-binding estimates. The price stipulated in the contract is subject to statutory sales tax. Packaging and office cost rates as well as travel rates shall be charged additionally. Hotline service and remote maintenance exceeding 4 hours/year respectively  is not included in a flat rate and will be charged separately on a time and material basis. Hotline services and remote maintenance outside of regular business hours shall also be charged on a time and material basis. On-site user support will be charged on a time and material basis in ¼ hour increments and based on the Company’s rates valid at the time of Customer claiming the service, plus any travel costs and other expenses incurred. The remuneration for training and consulting days is based on the agreed fixed price. A day is understood to have eight hours and includes breaks. Additional time and additional costs will be remunerated separately. If, due to a special agreement, services are provided outside of the normal Monday-Friday business hours, the Company is entitled to demand an additional surcharge of 25% per hour on top of the agreed hourly rate. On Saturdays, Sundays and public holidays at the place of performance, the overtime surcharge is 50%.

 

4. Invoicing
The Customer agrees to an electronic transmission of the invoice. Payments are due upon receipt of invoice. The remuneration for recurring services is due in advance on the first of each month of the calendar month following the conclusion of the contract. FarmFacts is not obliged to send the invoice electronically, and a change of invoice transmission method is possible at any time. Invoices sent by post do not lead to any additional costs.
 

5. Form of Declaration
Any declaration (e.g. contract termination, notice of defect) made by one party to the other party must be made in text form (e.g. email, fax, etc.) in order to be effective.
 

6. Cooperation of the Customer
The Customer is obliged to carry out a complete data backup both prior to updating of the contractual software as well as before other measures (maintenance, supplementary performance, etc.) are carried out on the software. For the duration of the provision of services, the Customer provides the technical infrastructure (hardware, software, technical infrastructure, internal network) required by the Company in a functional condition and with sufficient capacities at his own expense, unless provided by the Company. Furthermore, in order to facilitate the execution of the contract, the Customer provides all necessary data or data records - in the form agreed between the parties in each case - and is responsible for its completeness and unrestricted usability. In the case of defect rectification, the Customer is obliged to provide all information and documents required for the removal of the defect.
 

7. User Support
User support is available via telephone (hotline) and internet (remote maintanance) at the times indicated on the Company’s website. Remote maintenance may include the installation and setup of a chargable remote maintenance software license for the respective PC workstation.
 

8. Contract Duration and Termination
Contracts containing a contractual period are entered into for an initial term of one year. These contracts are renewed for a further year if they are not terminated by a party at least three months prior to the end of the contractual year.
 

9. Extent of Use and Granting of Rights
The Company grants the Customer the non-exclusive, perpetual, irrevocable, non-transferable and non-sublicensable right to use the services within the scope of the contract as set out therein. These rights include agreed interim results, training materials, and resources.
 

10. Software Updates and Maintenance
Program updates and maintenance include the updating of software with program enhancements and changes. As far as possible and necessary, a yearly release will take place. Only the most recent software version shall be maintained, such version being regularly offered by the Company with the conclusion of a software service contract. Warranty rights remain unaffected.

 

11. Purchase and Lease of Software

a. Usage Rights/Licenses

If the Company provides the Customer with software for purchase (as file/on data medium) or for lease (Software as a Service), the Customer is only entitled to use the software within the scope of the respective End User License Agreement (EULA), which is to be agreed to prior to the software use.

b. Initial Defects
As far as services under a lease agreement are provided, liability without fault according to Section 536a, Paragraph 1 BGB is excluded.
c. Software Requirements
The Company does not warrant that its content is compatible with (third party) software of the Customer.
d. Changes to Provided Services
The Company is entitled to change or discontinue software functions when leasing software. The change or discontinuation is communicated to the Customer with a notice period of four weeks. If a function is discontinued without a replacement, the Company will recalculate the lease price for the remaining software functionality. If the Customer does not give extraordinary and immediate notice of termination within the four week notice period, or if he continues to use the software during this period, the contract will continue under the amended terms communicated by the Company.
 

12. Data Backup
The customer is obliged to perform a complete data backup in regular intervals. A data backup is recommended whenever applications have generated records that cannot be restored or records that cannot be restored without great effort in the event of data loss without backup. 
 

13. Damages for non-acceptance
If the contract can not be fulfilled for reasons for which the Customer is accountable, the Customer is obliged to pay a lump sum of 15% of the order value. The Customer is free to to prove lower damages.
 

14. Warranty
The warranty period is one year. As far as the company is liable pursuant to the below clause, the statutory limitation period shall apply.
 

15. Liability
The Company is fully liable for intent and gross negligence in accordance with the German statutory provisions. In the event of damages resulting from injury to life, limb,or  health, the German Product Liability Act (Produkthaftungsgesetz) or fundamental contractual obligations, the Company is liable for every negligence. Fundamental contractual obligations are those whose fulfillment characterizes the contract and on which the customer may rely. Any further liability does not exist. In particular, the Company is not liable if the Customer fails to back up the data in violation of his obligations to cooperate. In the event of loss of data, the Company is only liable for the effort that would have been necessary to restore the data if the customer had properly backed up the data.

 

16. Payment Methods and SEPA Direct Debit

The company offers three different payment methods:

(a) Online purchases, credit card billing

Credit card statements are carried out by PAYONE GmbH, Fraunhoferstr. 2-4, 24118 Kiel, Germany - Registered office: Kiel - Amtsgericht Kiel HRB 6107 - Managing Directors: Carl Frederic Zitscher, Jan Kanieß - A Sparkasse Financial Group company.

(b) SEPA Direct Debit

If the Customer has granted the company a SEPA mandate, the Company will collect the invoice amount from the designated account at the earliest one working day after receipt of the invoice in the SEPA direct debit procedure. The direct debit payment with reference to the issued SEPA mandate will be announced to the customer 1 day prior to collection. The collection of recurring payments with equal amounts is announced once a year.

(c) Offline Purchase on Account

17. Retention of Title

The products shall remain the property of the Company until payment of all debts resulting from this contract has been made in full. Upon Customer’s request, the securities the Company is entiteld to will be released insofar as their value surpasses all claims to be secured by more than 25%.
 

18. Data Protection
Responsible for the processing of data is FarmFacts GmbH, Rennbahnstr. 7, 84347 Pfarrkirchen, Tel .: 08561 / 3006-616, email: Datenschutz@farmfacts.de. The Company processes personal data for the processing of orders as well as for its own marketing purposes to the extent permitted by law. The interests of a third party are not tracked with the processing of data, data transmission to countries outside the EU is not intended. Receivers of the data are IT and service providers and delivery companies for the purpose of contract execution and credit bureaus (eg Schufa) for the purpose of credit checks in the event that the Company is obliged to advance payment (eg purchase on account, direct debit ). The lawfulness of data processing results from Article 6 (1) of Regulation (EU) 2016/679 (DS-GVO). There is no obligation for the Customer to provide the data, however data provision is necessary for the fulfillment of contractual obligations. Detailed information on data processing, and in particular the Customer rights, is available at: https://www.farmfacts.com/privacy/
 

19. Offsetting and Assignment
The assignment of rights is not permitted to the Customer without the consent of the Company. Unless the claim results from the same contractual relatipnship, the Customer can offset effectively only with a claim that is undisputed or legally binding.

 

20. Force Majeure
For all unforseeable events which are not attributable to the parties (strike, disruptions in operations and/or transportation, delivery malfunctions, natural phenomenona, riots, war, etc.) the Company shall be released from its obligation to perform for the duration of the impediment. If this state of force majeure continues for more than 30 consecutive days, then the contract may be terminated by either party.

21. Export Control
The conclusion of the contract is subject to the condition precedent that no impediments arise due to national or international regulations, in particular export control regulations and embargoes or other sanctions. Deliveries and services for the fulfillment of concluded contracts are also subject to the above proviso.

22. Confidentiality
The parties undertake to keep confidential all business and trade secrets they receive from the other party or which become known to them in fulfillment of the contract or which have been designated as confidential information. The information and documents may not be made available to third parties. The confidentiality obligation does not cover information and documents which were in the public domain and generally accessible at the time of disclosure, or which were already known to the receiving party at the time of disclosure, or which were rightly disclosed to the receiving party by a third party. Exempt hereof is the disclosure of information and documents to consultants of the parties, whom are obliged to maintain confidentiality in accordance with §203 StGB of the German Criminal Code (persons bound by professional secrecy).

23. Other
German law shall apply, with the exclusion of the UN Convention of the International Sale of Goods (CISG). Applicable mandatory consumer protection laws shall remain unaffected by this choice of law. The exclusive place of jurisdiction is Munich, insofar as applicable law does not state a different exclusive jurisdiction.  Should individual provisions of these terms and conditions be invalid or incomplete, the validity of the other provisions remains in full force and effect.

 

B.  Special Conditions for the Use of the Web Portal NEXT Farming LIVE and the Portal Applications

In addition to the Company's terms and conditions, the following terms and conditions apply to the use of the NEXT Farming web portal and its applications.
 

1. Services/ Requirements / Pricing
Via a web portal, the Company offers applications providing a comprehensive range of services intended to support the Customer in his farm management and operations.

The Customer has the option of choosing free applications (“Basic Applications”) or fee- based applications offered and marked as such by the Company or third parties (“Additional Applications”). The functionality of the applications is outlined in their respective („Product Description“). The rights and obligations relevant to the individual applications are set forth in their respective terms of use.

2. Registration and Use of the Portal and Applications
Access to the portal requires an account registration and the acceptance of these here terms and conditions. To this end, the Customer requires a device with a suitable operating system (Windows, iOS, Linux), a current web browser, and an internet connection. Any additionally required prerequisites will be outlined in the respective application product description. Following registration, the Customer will receive login details for the portal, allowing him to buy and use the applications. The applications are subject to separate terms of use, which the Customer must accept prior to placing an order. Should the Company offer additional goods and services, the Customer can order them in a separate process in accordance with the applicable sales conditions.

 

3. Grant of Rights
The Company grants the Customer a personal, nonexclusive, nontransferable and non-sublicenseable right to use the portal, limited in time by the term of the contract. The Customer‘s right to use the portal shall terminate automatically upon expiry of the contract term. The provision of Nr. B 6 shall remain unaffected.

 

4. Change in Scope of Services

The Company shall be entitled but not obliged to continuously develop the applications and the portal. This may result in a change to the scope and operation of the portal and discontinuation or change to the applications, however the fundamental overall functionality of the portal shall be maintained by the Company. The Company shall notify the Customer of discontinuation of individual functionalities with a notice period of four weeks. If the Customer fails to extraordinarily terminate the contract with immediate effect, or if the Customer continues to use the software, the contract will continue under the modified conditions communicated by the Company.

The Company is entitled to immediately limit or prevent the use of the Portal and/or the applications for good cause.  Good cause is deemed to exist, for e.g., when the Portal or application system stability is jeopardised or if the security of the Portal or of the applications is compromised.

 

5. Duration and Termination

This contractual relationship shall become effective upon registration and shall continue in effect for an indefinite term of years. A termination of the portal without notice is possible at any time, provided that no Additional Applications have been subscribed to. In this case, termination is only possible at the end of the contractual period of the last subscribed Additional Application.

A separate contract is concluded for the use of Basic and/or Additional Applications.

Applications can be terminated at the end of the contractual term subject to a notice period as set out in the product description. At the end of the contractual period, the data created with the respective application is no longer available to the Customer. The Customer is responsible for timely data backup prior to contract end. The right of extraordinary termination for good cause remains unaffected. Good cause is deemed to exist, in particular, if one party repeatedly violates its contractual obligations so that the other party, taking into account the notice period, cannot be reasonably expected to adhere to the contract for the remainder of the contractual term.

 

6. Portal Availability

The portal is available to the User with a monthly average uptime percentage of  98%, excluding the times during which maintenance and repair work is carried out. Access may be restricted during necessary maintenance and repair work. The Company will strive to inform the Customer about planned maintenance windows in good time.

 

7. Warranty for Defects and Liability

Regarding the provision and maintenance of the portal which is provided to the Customer free of charge, the Company shall only be liable to the Curstomer for damages on account of an intentional or grossly negligent breach of its contractual obligations, injury to life, body, or damage to health, fraudulent misrepresentation, and as defined and prescribed by the German Product Liability Act (limitations of liability as set out in gift legislation apply). Any further liability is excluded. This shall not affect any differing liability and warranty provisions of the individual applications, which shall take precedence over these terms and conditions (see provisions A.14 and A.15).

 

8. Further Customer Obligations

The Customer himself is responsible for checking the results which he generates using the portal and the individual applications on the portal for compliance with legal regulations, regulatory requirements and professional practice, and to adhere to these guidelines at his own responsibility.

The Customer is responsible for ensuring that the subscribed applications are compatible with his machines, devices and third party applications.

 

9. Support

To the extent that the Company provides online support for the portal and the applications, such will be found in the respective application and is clearly marked.

Insofar as hotline support is available, service times and pricing may be found on the portal.

10. Changes and Amendments

The Company is entitled to unilaterally change or amend these terms and conditions with effect in futurum (ex nunc) as far as this is necessary to protect the legitimate interests of the Company, in particular if new features are added to the portal or the individual applications, or in the event of legislative changes.

The Customer will in this case be informed of the changes and/or amendments with a notice period of at least two months. If the Customer does not oppose the new terms and conditions within six weeks after notification (opposition period), the revised terms and conditions shall be considered to have been accepted by the Customer.

The Company shall point out the right of objection and the significance of the objection period to the Customer in its notification.  In case of objection, the Customer can continue his use in accordance with the previous version of the terms and conditions, however, the Company is in this case entitled to terminate the contractual relationship for good cause.

 

Version: 06.2018