General Terms and Conditions of Negometrix USA Inc.

Article 1. Definitions

The following definitions are used in these General Terms and Conditions:

1.1 GT: these general terms and conditions, regardless of the form in which they are made known.

1.2 Agreement: the agreement between NX and the Client with regard to:

– the Right of Use, which agreement consists of the GT and the cover page signed by the parties for approval and the accompanying appendices:

– the delivery of the Additional Services, which agreement consists of the order confirmation from NX signed by the Client for approval and the accompanying appendices to which reference is made.

1.3 Client: the legal entity that concludes an Agreement with NX.

1.4     NX: the private company Negometrix USA Inc, established at 81 Prospect Str, Brooklyn, NY 11201, FEIN: 82-5265226.

1.5 NX Platform: the online Web service developed, maintained, delivered and hosted by NX.

1.6 Domain: the Client’s own environment in the NX Platform.

1.7 Product (s): the NX modules as mentioned in the cover page and made available in the Domain for which the Client receives the Right of Use.

1.8 Web service: the combination of the Products and the Domain.

1.9 Right of use: against payment of the User Fee, the non-transferable and non-exclusive right as granted by NX to the Client during and under the conditions of the Agreement:

– by electronic access to the Domain: and

– to use the Products exclusively in accordance with the details of the Right of Use that have been further specified in the cover page.

1.10 User Fee: the annual fee payable in advance by the Client for the User Right.

1.11 Additional Services: all services from NX that are not covered by the Right of Use and are described in the Agreement.

1.12 Data: all data and content of any nature whatsoever if delivered, created and / or obtained through the Web service

1.13 Specifications: the total of the functional properties, system functions, availability and security of the Products or the Domain as described in the NX on-line documentation and in the SLA.

1.14 End User: a natural person who exercises the Right of Use under the responsibility of the Client and who can log in as such on the NX Platform.

1.15 Provider (s): the legal entity – not being the Client – including potential suppliers and suppliers of the Client, who uses the NX Platform in one way or another.

Article 2. General.

2.1 The GT apply to all agreements and to all other possible legal acts between the Client and NX, to all use of the Web service by the Client and to the provision of Additional Services.

2.2 NX explicitly rejects any general (purchase) conditions of the Client. Client explicitly and exclusively accepts the provisions of the Agreement and the GT.

 

Article 3. Right of use and Additional Services.

3.1 After concluding the Agreement and against payment of the User Fee, NX grants the User the Right of Use and makes the (digital) documentation associated with the Products available for use.

3.2 The Web service may only be used within and for the purpose of the scope as described in the cover page under “Right of use” and therefore solely by the associated (type / organization / department / number) End Users. In the event that this scope and / or End Users change from what is the case at the time of entering into the Agreement, NX is entitled to adjust the User Fee accordingly.

3.3 As part of the Right of Use, NX periodically performs general regular maintenance of the Web service, which includes the following:

  1. the detection and repair of the imperfections in the standard form of the Web service and in the accompanying documentation,
  2. making new releases of the Products available with additional functionalities and / or improvements.

3.4 As part of the Right of Use, NX provides the work as described in the SLA.

3.5 The Parties will conclude an Agreement for all possible Additional Services

Additional Services may include NX support in the implementation of the use of the Web service and / or training on the features and use of the Web service.

Article 4. Duration, extension, termination Agreement.

4.1 The Agreement commences on the start date as stated in the cover page and remains in force for the duration as stated in the cover page / order confirmation.

4.2 With regard to the Right of Use, after the expiry of the period referred to in paragraph 4.1, the Agreement will be extended for a period of twelve (12) months each time.

4.3 With regard to the Right of Use, termination of the Agreement by the Client or NX takes place by termination at the end of the period of the Right of Use with due observance of a period of at least three (3) months. Cancellation must be made by registered letter with acknowledgment of receipt.

Article 5. NX Platform.

5.1 NX only offers a facilitating role through the Webservice and is therefore in no way responsible for the accuracy, suitability and completeness of the Data, nor for the actions or omissions of a Client in connection with the Webservice or otherwise. NX is not a party to possible agreements between the Client and the Provider. That is why NX is neither responsible nor liable for the mutual fulfilment of obligations between the Client and Providers, including the authority to enter into agreements, the fulfilment of any payment obligation and the correct execution of the work to be performed.

5.2 Client is responsible and liable for the content of the Data. Client guarantees that the content of the Data is correct, up-to-date and reliable, does not violate applicable laws and regulations, does not infringe on the intellectual property rights of third parties and is not otherwise unlawful and indemnifies NX against all costs and damage in the event of non-compliance with this guarantee.

5.3 The Client is not permitted to use the NX Platform or have it used for incorrect, unlawful and punishable conduct. This will, among other things, be the case if the use (also) relates to:

– material / data that is contrary to any law, regulation or the GT;

– the unlawful or criminal dissemination of non-public data;

– the distribution of punishable texts and image and sound material and / or material that in the opinion of NX is misleading and / or that violates good morals / taste and / or public order;

– material / data that infringes intellectual property rights and / or privacy rights and / or that violates other rights of NX and / or third parties;

– computer peace breach (“hacking”);

– material / data that refers to the provision of illegal services or services that may in any way cause damage to the property of others;

– the destruction, damage or rendering unusable of systems or automated works and software of others.

5.4 NX reserves the right to change, refuse and / or remove material / Data because the material / Data falls within the scope of Article 5.3, without this leading in any way to the Client’s right to compensation.

5.5 Client will not use the NX Platform (or have it used) for any purpose for which it is not intended and will refrain from sending unsolicited and / or unsolicited messages to (other) clients or Providers. The Client is not permitted to initiate or continue processes that it may reasonably suspect may hinder other clients or Providers and / or adversely affect the use of the NX Platform.

5.6 NX is entitled, partially or fully, to adjust, change and / or update the NX Platform.

Article 6. Account.

6.1 End users of the Client must activate their account and must therefore enter all required information required to complete the registration process. Client is responsible for all activities and data that are placed and uploaded in the accounts of its end users. An account is always personal and cannot be transferred to a third party.

6.2 The user names provided by NX to the End User are strictly personal. The client is responsible for preventing abuse of the provided (personal) combination of username and password.

NX is entitled to make changes to the login access procedure.

6.3 NX reserves the right to exclude the Client or End Users from the Client from any (further) use of the Web Service, inter alia by blocking the Domain or blocking and / or deleting the accounts of End Users, without being required to reimburse any compensation already received if the Client:

– acts contrary to the Agreement in any way;

– infringes the (intellectual property) rights of third parties;

– acts contrary to applicable laws and regulations.

Article 7. Payment.

7.1 NX will give the Right of Use and the Additional Services against payment of the User Fee or at the rates as agreed in the Agreement. The annual User Fee must be paid in advance. Additional Services will be invoiced after entering into the Agreement. All prices and rates will always be set in Dollars ($). NX will send (digital) invoices to the Client for all reimbursements. NX is entitled to invoice periodically. Payment of invoices must be in Dollars ($).

7.2 For the invoices, a payment term of thirty (30) days after the invoice date applies. If the Client fails to pay an invoice on time, the Client is legally in default. The Client will then owe an interest of 1% per month, unless the legal interest is higher, in which case the legal interest is due. The interest on the claimable amount will be calculated from the moment that the Client is in default until the moment of payment of the full amount due. Objections regarding the invoice must be reported within ten (10) working days after the invoice date. If the Client is in default in the (timely) fulfilment of its obligations, then all reasonable costs for obtaining settlement out of court will be borne by the Client. Exceeding a payment term gives NX the right to suspend or terminate its services with regard to the unpaid service.

7.3 All prior payments are non-refundable unless an interim termination of the Agreement is entirely caused by an attributable shortcoming on the part of NX in which case the compensation for the remaining months after the date of termination of the current contract year will be reimbursed to the Client.

7.4 NX is entitled annually to increase the fees due under the Agreement in accordance with the index for business services, as published on the website of or by a percentage of 2%, depending on which percentage is highest.

Article 8. Warranty & Liability.

8.1 Under the condition that the Client’s own infrastructure meets and continues to meet the pre-requisite conditions as described in the Specifications, NX guarantees that:

– the Additional Services to be provided by or on its behalf under the Agreement will be performed in a professional manner;

– the Web service meets the Specifications;

– its staff meets and will continue to meet the appropriate qualifications with regard to training, expertise and experience;

8.2 NX does not guarantee that:

– the information on the Web service is correct, complete, suitable, up-to-date and not unlawful, including the data of other clients and providers;

– the Web service will work completely without defects on the understanding that NX will try to have the Web service comply with the Specifications in accordance with the SLA; and

– third parties will not use NX and / or NX systems unlawfully.

8.3 If NX should be liable, this liability is limited to what is regulated in this provision. NX is not liable for damage, of any nature whatsoever, caused by the fact that NX acted on / or was otherwise caused by incorrect and / or incomplete data / Data provided by or on behalf of the Client or Provider.

NX is responsible for the availability of the Web service whereby it makes every effort to offer optimum availability. The consequences of failure or inaccessibility of the Web service as a result of reasonably unforeseeable circumstances or circumstances beyond the control of NX are at the risk of the Client. The guarantee of this article 8 expires in case of incorrect use of the Web service.

If NX should be liable for any damage, the total liability of NX will never be more than the User Fee as paid for the year in which the damage occurs; NX’s liability is in any case always limited to the amount paid out by its insurer, if applicable.

NX is only liable for the direct damage actually suffered. Direct damage is exclusively understood to mean:

– the reasonable costs for determining the cause and extent of the damage insofar as the determination relates to damage within the meaning of the GT;

– any reasonable costs incurred to ensure that the defective performance of NX complies with the Agreement / GT insofar as these can be attributed to NX; and

– the reasonable costs incurred to prevent or limit damage insofar as the Client demonstrates that these costs have led to the limitation of direct damage as referred to in the GT.

8.4 NX is never liable for indirect damage, including consequential damage, lost turnover / profit, missed savings and damage / costs due to business interruption. More specifically, NX is not liable for damage on the part of the Client that is caused by third parties, whether or not they use the Web service.

Article 9. Privacy & security.

9.1 The use of the (personal) data obtained by the Client through the Webservice may only be used by all parties for the purpose for which they were provided. It is not permitted to process this data for any other purpose, including – but not limited to – any form of unsolicited communication (spam). If required by law, the parties will conclude a separate written processing agreement.

9.2 NX will endeavour to achieve the level of network security, security of user access that is customary in the industry and to protect the Data against loss and / or any form of unlawful use if and insofar as NX actually has access to the Data. The security requirements of the NX Platform as part of the Specifications will be met by NX. NX does not guarantee that all these measures are effective under all circumstances. NX takes appropriate technical and organizational measures in this context, taking into account, among other things, the current state of the art in the industry.

Article 10. Intellectual property rights.

10.1 All intellectual property rights with regard to the Products or the NX Platform are and remain the property of NX. NX acknowledges that the intellectual property on the Data of the Client or of the Provider is and remains theirs.

10.2 With due observance of the limitations of Article 8, NX indemnifies the Client against the direct damage and / or costs that result from a breach of this guarantee.

10.3 Without the prior written permission of NX the Client is not permitted to make the Products, the Domain or any content thereof, available to third parties in any way whatsoever, to reproduce, translate, edit, modify , distribute, send, or incorporate them in any other way into another document or material or by creating reverse engineering or otherwise (trying to) create the source code of the Products or of the NX Platform.

10.4 NX is permitted to take technical measures to protect the Products and / or the NX Platform respectively.

Article 11. Expiry / interim termination.

11.1 In the event of expiry of the term of the Agreement, see the transition provisions in the SLA for the Right of Use.

11.2 The Agreement can be terminated by registered letter by a party in the event that the other party acts contrary to any provision of the Agreement and this other party is not notified of its contradictory course of action by registered letter within ten (10) days, fully complies with this. This written notice of default, including the aforementioned term, is always required, except to the extent that full compliance is no longer possible or useful or if a term is included in the Agreement within which the other party must have performed.

11.3 Without prejudice to the rights that a party has under the law, each party has the right to terminate the Agreement in writing immediately and without notice if the other party:

– applies for or obtains a (provisional) suspension of payment;

– submits its own petition for bankruptcy, a third party submits a petition for its bankruptcy:

– is declared bankrupt;

– is dissolved or its company / organization is dissolved;

– ceases its activities;

– is otherwise no longer able to meet the obligations under the Agreement.

Article 12. Other

12.1 Confidentiality. Parties will observe strict confidentiality with regard to the information about each other’s organization and business as well as the NX Platform, Domain, the Products and the Data. Parties impose this obligation on their employees and on third parties engaged by them.

12.2 Waiver. Failure by one of the parties to demand compliance with any provision within the Agreement does not affect the right to demand compliance, unless the party concerned has explicitly agreed in writing to the failure.

12.3 Transferability. Client is not entitled to transfer the rights and obligations from the Agreement to a third party without the prior written permission of NX. This permission will not be refused and / or delayed without reasonable grounds; However, NX is entitled to attach conditions to the granting of this permission.

NX is entitled to transfer all or part of the rights and obligations from the Agreement to a third party, provided that the legal successor guarantees the execution under the same conditions.

12.4 Parties declare and guarantee that they are entitled and authorized to enter into the Agreement and to grant the rights that are reciprocally granted in the Agreement.

12.5 Change. Any omission, addition and / or modification of any provision of the Agreement is only binding if this has been agreed in writing and signed by both parties.

12.6 In Writing. Parties acknowledge that reporting by e-mail falls under the heading “in writing”; however, official notifications regarding the duration / validity of the Agreement will always be made by registered mail.

12.7 Applicability of AV. Once the GT have been applicable to a legal relationship between the Client and NX, the Client is deemed to have agreed in advance to the applicability of the GT to Agreements concluded and to be concluded subsequently.

12.8 Invalidity. If and insofar as any provision of the GT is declared invalid or annulled, the other terms and conditions will remain in full force. NX will then adopt a new provision to replace the invalid / voided provision, whereby the scope of the invalid / voided provision will be taken into account as much as possible.

12.9 Subcontractors. NX will provide its activities and services under the Agreement in the role of main contractor and will use subcontractors where appropriate. Taking into account the limitations of Article 8, NX is responsible for the actions of that subcontractor.

12.10 Survival. Provisions of the Agreement that by their nature are intended to continue even after termination of the Agreement (such as payment obligations, liability, confidentiality, choice of law, etc.), remain in force until the obligations arising therefrom are fully and properly fulfilled.

12.11 Choice of law. Delaware  law applies to the GT and all resulting legal relationships, including Agreements. All disputes that may arise as a result of this will only be settled by the Court of the State of Delaware but not before the parties have tried to resolve the dispute amicably.