General Terms and Conditions of Negometrix BV
The General Terms and Conditions also apply to Commerce-hub BV, acquired by Negometrix BV in 2017.
Article 1. Definitions
These General Conditions use the following definitions for terms in both the singular and the plural.
1.1 General Conditions: these General Conditions, irrespective of the form in which they are made known.
1.2 Agreement: the agreement between Negometrix BV (hereinafter: NX) and the Client with regard to the Service to be carried out, which agreement consists of the General Conditions and the cover page signed as approved by both Parties.
1.3 NM Platform: the digital platform of NX.
1.4 Client(s): the (procuring) legal entity that enters into an Agreement with NX for the performance of a Service.
1.5 Service(s): the service provision that is offered by NX to the Client via the NM Platform, which service provision may consist of e-tendering and/or e-contract management solutions and which service provision is specifically specified on the cover page.
1.6 Provider(s): the legal entity – who is not the Client – including potential providers and suppliers of the Client, who one way or another wishes to use the NM Platform.
1.7Data: all information and content of whatever nature as supplied, created and/or obtained by a Client and by a Provider via the NM Platform.
1.8 Specifications: theentirety of the functional characteristics, system functionality, capacity, availability and security of the NM Platform as referred to on the website negometrix.com.
1.7 NX: the private limited company Negometrix BV, with registered office at Rijnzathe 32, (3454 PV), Utrecht, KvK (Dutch Chamber of Commerce) number: 30148169.
Article 2. General points
2.1 The General Conditions are applicable to all Agreements and to any and all other legal acts between the Client and NX and to all the usage made of the NM Platform by Clients and by Providers.
2.2 The Services are governed by the specific conditions referred to in Article 5 of the General Conditions; this Article does not apply to the usage of the NM Platform by Providers. Each provision of the General Conditions is applicable to both the Client and the Provider, unless explicitly stated otherwise in the relevant provision.
2.3 NX is at all times entitled to amend or supplement the General Conditions. However, when it comes to the Client, departures from the General Conditions and amendments to the Agreement are only valid if they have been agreed in writing between the Client and NX.
2.4 NX expressly rejects any general (procurement or other) conditions of the Client and of the Provider. The Client and the Provider respectively expressly and exclusively accept the provisions of the Agreement and of the General Conditions respectively.
2.5 If the General Conditions have at one time been applicable to a legal relationship between the Client and NX then the Client will be deemed to have approved in advance the applicability of the General Conditions into Agreements entered into subsequently, including those still to be entered into.
2.6 If and in so far as any provision of the General Conditions is declared to be null and void or is annulled then the remaining conditions will remain in force in full. NX will then lay down a new provision to replace the null and void/annulled provision, whereby as far as possible the object of the null and void/annulled provision will be taken into consideration.
Article 3. The NM Platform
3.1 Before the Service is performed, the Client must both enter into an Agreement with NX and register himself. The Client pays NX the fees specified in Article 5 as a consideration for the Service to be provided.
Each Provider too must register himself in order to gain access to the NM Platform. This registration by the Provider is free of charge.
Once the Agreement has been entered into or registration has taken place respectively, NX will provide the relevant access to the NM Platform in the form of an SaaS solution.
3.2 NX only acts as a facilitator via the NM Platform, which is why NX is not responsible at all for the correctness, appropriateness and completeness of the Data or for the acts or omissions of a Client and/or Provider in relation to the NM Platform or otherwise. NX is not a party to any agreements between the Client and the Provider. This is why NX is neither responsible nor liable for the mutual fulfilment of obligations between Clients and Providers, this including the authority to enter into agreements, the fulfilment of any payment obligation and the correct performance of the work to be carried out.
3.3 The Client and the Provider are themselves responsible and liable for the content of their Data. The Client and the Provider each warrant that the content of their Data is correct, up-to-date and reliable, does not violate the applicable legislation and regulations, does not violate intellectual property rights of third parties and is not otherwise unlawful, and fully indemnify NX for all costs and losses (including damage and harm) in the case of non-compliance with this warranty.
3.4 The Client and the Provider are not permitted to use the NM Platform (or allow it to be used) for incorrect, unlawful or punishable conduct. This would be the case for instance if the usage relates or partly relates to:
- material/Data that violates any law, regulation or the General Conditions;
- the unlawful or punishable dissemination of information that is not in the public domain;
- the dissemination of punishable texts and visual or audio material and/or material that in the opinion of NX is misleading and/or violates common decency/good taste and/or public order;
- material/Data that violates intellectual property rights and/or privacy rights and/or other rights of NX and/or third parties;
- computer intrusion (‘hacking’);
- material/Data that refers to the performance of illegal services or services that can in any way harm the property of others;
- the destruction, damaging and rendering unusable of systems or IT works and software of others.
3.5 NX reserves the right to amend, reject and/or delete material/Data because the material/Data comes under the scope of Article 3.4, without this in any way leading to an entitlement to compensation for the Client or the Provider respectively.
3.6 The Client and the Provider will not use the NM Platform (or allow it to be used) for any purposes for which the Platform is not intended and will refrain from sending unwanted and/or unsolicited messages to (other) Clients or Providers. Neither the Client nor the Provider is permitted to set processes in motion or to allow them to continue where they may reasonably suspect that this hinders the other Clients or Providersand/or adversely affects the usage of the NM Platform.
3.7NX is entitled to adapt, modify and/or update all or part of the NM Platform.
3.8NX also provides maintenance to Providers in accordance with Article 5.4, on the understanding that this only relates to the way in which the NM Platform is used and contains no content-related/technical advice and has to be limited to a reasonable number of hours to be set by NX.
Article 4. The account
4.1The Client and the Providermust each create an account on the NM Platform and to do so must each enter all mandatory information asked for that is needed to complete the registration process. With due observance of Article 3.3, the Client and the Provider are themselves responsible for all activities and Data that are placed in and are uploaded in their account. An account is always personal and cannot be transferred to a third party.
4.2 The Client and the Provider each bear the responsibility for discouraging abuse of the (personal or other) combination of user name and password that they provide. In the General Conditions, the term ‘password’ is deemed to mean: the private key of the Client or Provider respectively that is needed to access the NM Platform. In the General Conditions, the term ‘user name’ is deemed to mean: the identification code of the individual Client or Provider respectively. NX is entitled to modify the login access procedure.
4.3 NX reserves the right to exclude the Provider/Clientfrom any (further or other) usage of theNM Platform, including by blocking his account and/or deleting it, without being obliged to repay any fees already received, if the Provider/ Client:
- acts contrary to the General Conditions in any way;
- violates intellectual property rights or other rights of third parties;
- acts contrary to applicable legislation and regulations.
4.4 Negometrix will carry out the back-up and recovery of the Client’s and Provider’s respective Data in accordance with the procedure described in the Specifications.
Article 5. Agreement (NOTE: This Article only applies to Clients)
5.1 Licence. For the performance of the Service, NX grants the Client a non-transferable and non-exclusive licence that during the Agreement and under the latter’s conditions provides the Client with access to the NM Platform but solely does so for the Client’s own organisation. The cover page states the number of internal ‘licensees’ of the Client (such as: lead buyers, contract managers, contract administrators and/or qualification managers) that the licence has been granted for. The annual fee to be paid in advance for the licence is quoted on the cover page. If during the term of the Agreement the Client wishes to have additional licensees then this expansion and the fee for it must be agreed in accordance with Article 2.3.
5.2 Training/Certificate. All licensees must be in possession of a Negometrix certificate before they start using the NM Platform. This certificate is awarded to a licensee after the successful completion of one of NX’s training sessions. The training relates to the characteristics and usage of the NM Platform. The fee to be paid in advance for such a training session is quoted on the cover page. The training is given on either NX’s or the Client’s premises (see the cover page for further details). If the training is being given on the Client’s premises then in addition to the fee for the training the Client will also reimburse NX’s travelling expenses and any accommodation expenses. If the training is being given on the Client’s premises then at NX’s request the Client will ensure that IT facilities such as laptops, a projector and Internet access are provided at the Client’s expense. The date(s) of the training session(s) will be decided on jointly by the Parties and will depend on the availability of NX’s trainers. If it is the case during the term of the Agreement that other or new licensees are added then these licensees too must pay the applicable training fee to take the training session and must obtain a certificate.
5.3 Implementation. If desired, NX can provide support for the Client when it comes to implementing the usage of the NM Platform. The cover page states whether this support is being provided, and if it is, the number of hours of support that NX recommends and the corresponding hourly rate charged.
5.4 Maintenance. The licensees can contact NX’s service desk by e-mail and phone on Dutch working days between the hours of 8.00 a.m. and 6.00 p.m. (all times CET). The service desk provides technical support. The response time is four (4) hours on working days during the working times stated. If the NM Platform fails to fulfil the Specifications then NX will inform the Client about the content and timeframe for the corrective maintenance (i.e. recovery) of such a fault. Scheduled maintenance (downtime) takes place outside the stated working times on non-weekday days. NX will use a systems message to inform the Client beforehand of scheduled maintenance. The annual fee for maintenance is part of the licence fee (see Article 5.1); accordingly, no separate maintenance fee will be invoiced for, as it is included in the annual licence fee.
5.5 Additional work.Additional work consists of additional activities, functionalities and/or (consultancy and other) work that is related to the Client’s wishes and that leads to a demonstrable expansion of the NM Platform and/or Service. Such an expansion must be agreed in a separate/new Agreement. A request for a modification that only relates to the set-up of the NM Platform will in general not be deemed to be additional work and will be performed free of charge by NX. NX will only carry out the additional work after an ‘additional work’ Agreement has been drawn up that has been signed as approved by both NX and the Client. If desired, the ‘additional work’ Agreement will – in addition to the relevant specifications of the potential deliverable – also specify: the accompanying timetables, the milestones, test/acceptance criteria, the test plans, the fees and (payment and other) deadlines, and the potential impact on the existing Services.
5.6 Payment. NX will perform the Services that it is to deliver for the fees that have been agreed and set down on the cover page. All prices quoted are quoted exclusive of ‘BTW’ (Dutch VAT). All prices and rates will at all times be denominated in euros (€). NX will send (digital) invoices to the Client for all the fees charged. NX is entitled to invoice on a periodic basis. NX will invoice separately for additional work.
A payment deadline of thirty (30) days starting from the invoice date applies for the invoices. If the Client fails to pay an invoice on time then he is in default by operation of law. The Client then owes interest at a rate of 1% per month, unless the statutory interest rate is higher, in which case he will owe the statutory interest. The interest on the amount due will be calculated for a period that starts as soon as the Client is in default and ends when the full amount owed is paid. Objections regarding the invoice must be submitted no later than ten (10) working days after the date of the invoice. If the Client is in default when it comes to the (timely or other) performance of his obligations then all reasonable costs to obtain fulfilment extra judicially will be borne by the Client. Any exceeding of a payment deadline immediately gives NX the right to suspend or end its performances in respect of the unpaid Services.
No payments that have already been made can be reclaimed unless an early termination of the Agreement is entirely caused by an attributable shortcoming on the part of NX, in which case the fee for the months of the current contractual year that remain after the termination date will be repaid to the Client on a pro rata basis.
5.7 Term. The Agreement commences on the date stated on the cover page, and from the commencement date onwards has a term – subject to early termination in accordance with the provisions of the General Conditions – of twelve (12) months. This period can hereafter be extended in each case by a period of twelve (12) months, unless the Client or NX terminates the Agreement in writing at the end of a term, with due observance of a notice period of one (1) month.
5.8 Termination.If and in so far there is an attributable shortcoming in respect of an obligation under the Agreement that despite a notice of default that is in accordance with the law is not fully fulfilled then the other Party is free to terminate the Agreement if the attributable shortcoming is serious enough to justify the termination.
Each Party is entitled to terminate the Agreement extra judicially by registered letter without any demand or notice of default if:
- the other Party applies for or is granted a (provisional or full) suspension of payment;
- the other Party applies for its insolvency or is declared to be insolvent;
- the other Party’s business is wound up;
- the other Party discontinues its existing business;
- a significant proportion of a Party’s assets are seized, as a result of which this Party is no longer able to conduct his business;
- a Party is otherwise no longer in a position to fulfil his obligations under this Agreement.
Article 6. Warranty & Liability
6.1Subject to the condition that the Client’s and the Provider’s own infrastructure fulfils and continues to fulfil the pre-requisite conditions as specified in the Specifications, NX warrants that:
* NX will perform its Services professionally;
* with due observance of Article 6.2, both the Services that NX is to provide and the NM Platform fulfil the Specifications;
- its personnel fulfil and will continue to fulfil the proper criteria regarding the training they should have undergone and the expertise and experience they should have;
- the hosting of the NM Platform and the storage and preservation of the Data will be undertaken in a member state of the European Union (EU).
6.2NX does not warrant that:
- the information on the NM Platform is correct, complete, appropriate, up-to-date and lawful, this deemed to encompass the Data of other Clients and Providers too;
- the NM Platform will work completely ‘error-free’, whereby in accordance with Article 5.4 NX will endeavour to ensure that the NM Platform fulfils the Specifications;
- and that third parties will not use the NM Platform and/or NX’s systems unlawfully.
6.3Should NX be liable then this liability is limited to the liability that is regulated in this provision. NX is not liable for losses of whatever nature that arise because NX has proceeded on the basis of, or that is otherwise caused by, incorrect and/or incomplete information/Data provided by or on behalf of the Client or Provider respectively.
NX is never liable for the way in which or for the purpose for which the Client or Provider or a third party make use of the Internet access by means of the Client’s or Provider’s user name and/or user password respectively.
NX ensures the availability of the NM Platform, whereby NX will endeavour to provide optimum availability. The consequences of a lack of/inaccessibility of the NM Platform as the result of reasonably unforeseeable circumstances or of circumstances that lie beyond the control of NX are however at the risk of the Client or the Provider respectively.
If NX is liable for any losses then NX’s total liability will never exceed the total stipulated fee for using the Service to which the liability relates for the year during which the shortcoming occurs, with a maximum of € 5,000.00.This maximum is applicable for each Provider, as NX does not enter into Agreements with a Provider.
NX’s liability is in all cases limited to the amount that his insurer pays out in the case in question.
NX is solely liable for the direct loss actually suffered. Here, ‘direct loss’ is solely deemed to mean:
- the reasonable costs to establish the cause and extent of the losses, in so far as this establishing relates to losses within the meaning of the General Conditions;
- any reasonable costs incurred to ensure that NX’s defective performance complies with the Agreement/General Conditions, in so far as this can be attributed to NX;
- and the reasonable costs incurred to prevent or limit losses, in so far as the Client or Provider respectively can demonstrate that these costs led to a limitation of direct loss as referred to in the General Conditions.
6.4NX is never liable for indirect loss, this including consequential loss/damage, lost turnover/profits, missed savings and losses/costs caused by business interruption. More especially, NX is not liable for losses incurred by the Client or Provider respectively that were caused by third parties, whether or not these third parties use the NM Platform and/or the Services.
Article 7 Security & Privacy
7.1 The usage of the (personal and other) information that is obtained by the Client or Provider respectively via the NM Platform must solely be used by all Parties for the purpose for which it was provided. It is not permitted to process this information for any other purpose, this including – but not limited to – any form of unsolicited communication (spam).
7.2NX will endeavour to achieve the highest possible level of network protection that is customary in the industry, to protect user access and to protect the Data against loss and/or any form of unlawful usage if and in so far as NX actually has access to the Data. NX will comply with the security requirements for the NM Platform, which form part of the Specifications. NX does not warrant that the security measures will be effective under all conditions. In this regard, NX will implement appropriatetechnical and organisational measures, which will take into account such factors as the state of the art.
The Client has the option of carrying out a ‘Pen(etration) test’ or other test at his own expense and risk for the NM Platform; NX has to approve the time and scope of such a test beforehand in writing.
7.3 The Client or Provider respectively has a say in the processing of the Data and has established the purpose of and the resources to be used for the processing. NX is the ‘processor’ and the Client or Provider respectively is the ‘responsible party’ within the meaning of the GDPR. NX and the Client or Provider respectively comply with the provisions of the GDPR and indemnify the other Party against all direct costs and losses that arise from a violation of, or legal proceedings relating to, the purpose and/or the scope and/or to any provision of the GDPR.
In its capacity as the ‘processor’, NX:
- is not entitled to use the personal data (or cause it to be used) other than for the performance of the Services;
- will solely process the personal data and Data as instructed by and for the benefit of the Client or Provider respectively and in accordance with their instructions and will only use them for the intended performance of the NM Platform;
7.4The Client or Provider respectively are obliged, as the responsible party within the meaning of the GDPR, to report Data leaks to the Dutch DPA, as well as (in certain cases) to the stakeholder by virtue of Article 34a GDPR. In order to support the Client or Provider respectively in the fulfilment of his obligation to report Data leaks, the Parties hereby agree that NX will endeavour to inform the Client or Provider respectively about security incidents as soon as NX detects the aforementioned security incidents. The reporting of Data leaks as referred in Article 34a GDPR remains at all times the responsibility of the Client or Provider respectively. NX is never under an obligation to report Data leaks to the Dutch DPA and/or the stakeholder. Where possible and necessary, NX will cooperate with the necessary provision of information to the Client or Provider respectively in the context of the security incidents reported by NX. NX can charge the Client or Provider respectively for the additional costs that NX incurs in this regard. An administrative penalty that the Dutch DPA imposes on the Client or Provider respectively cannot be recovered from NX, unless there is intent or deliberate recklessness on the part of NX’s management team.
7.5 Neither the Client nor the Provider is permitted to provide access to third parties for the NM Platform, with the exception of all publicly accessible screens, or to reproduce the NM Platform and/or to show/demonstrate it to third parties without NX’s prior written consent.
Article 8. Intellectual property rights
8.1 All intellectual property rights relating to the NM Platform solely belong to NX. The NM Platform is and remains the property of NX; NX grants to the Client and Provider respectively a non-exclusive and non-transferable right to use the NM Platform for his own internal activities.
8.2NX warrants that he is the independent holder of the intellectual property rights forthe NM Platform and for the granting of access to it to the Client or Provider respectively. With due observance of the limitations set out in Article 6, NX indemnifies the Client and Provider respectively for the direct loss and/or costs that arise from a full or partial failure to comply with this warranty. NX recognises that the intellectual property rights for the Data lie with and remain with the Client or Provider respectively.
8.3Without NX’s prior written consent, neither the Client nor the Provider are permitted to provide the NM Platform or any content thereof to third parties or to reproduce them, disseminate them, transmit them or process them in any other way into another document or other material. This means amongst other things that without NX’s prior written consent, neither theClient nor the Provideris permitted to retrieve a substantial portion of the content of one or more databases and re-use it/them, and/or to repeatedly and systematically retrieve non-substantial portions of the content of one or more databases and re-use them within the meaning of the Dutch Databases (Legal Protection) Act.
Article 9. Other points
9.1 Confidentiality.The Parties will maintain strict confidentiality in respect of the information about each other’s organisation and business and about the NM Platform and the Data. The Parties impose this obligation on their employees and on third parties they bring in.
9.2 Waiver. If one of the Parties omits to demand fulfilment of any obligation under the Agreement or the General Conditions then this does not affect that Party’s right to demand fulfilment after all, unless the relevant Party has expressly agreed to the non-fulfilment in writing.
9.3 Assignability. Neither the Client nor the Provider are entitled to assign the rights and obligations under an Agreement or the General Conditions to a third party without the prior written consent of NX. This consent will not be refused and/or delayed without reasonable grounds; NX is however entitled to attach conditions to the granting of this consent.
NX is entitled to assign the rights and obligations under an Agreement or the General Conditions in whole or part to a third party, provided that the legal successor warrants the performance under the same conditions.
9.4 Subcontractors. NX will deliver its activities and Services in its capacity as main contractor and will make use of subcontractors where appropriate to do so. With due observance of the limitations of Article 6, NX is responsible for the actions of this subcontractor.
9.5 Choice of law. The General Conditions and all legal relationships arising from them including Agreements are governed by Dutch law. Any and all disputes that arise in respect of an Agreement or the General Conditions will be solely settled by the District Court of the Central Netherlands in Utrecht but not before the Parties have endeavoured to settle the dispute amicably.