Article 1. Definitions.
1.2 User(s): a Client and/or Provider.
1.3 Client: the legal person who enters into an agreement with Mercell.
1.4 Mercell: the private company Mercell Inc, established at 81 Prospect St, Brooklyn, NY 11201, USA
1.5 NX Platform: the online Web service developed, maintained, delivered and hosted by Mercell.
1.6 Domain: the Client’s own environment in the NX Platform.
1.7 Product (s): the Mercell modules made available to the Client.
1.8 Web service: the combination of the Products and the Domain.
1.9 Data: all data and content of any nature whatsoever if delivered, created and / or obtained through the Web service.
1.10 Specifications: the total of the functional properties, system functions, availability and security of the Products or the Domain as described in the Mercell on-line documentation.
1.11 End user: a natural person who can log into the NX Platform under the responsibility of the Client and/or the Provider.
1.12 Provider(s): legal entity – not being the Client – including potential suppliers and suppliers of the Client, who uses the NX Platform in one way or another and with whom Mercell has not entered into an agreement.
Article 2. General.
2.1 The GT monitors all use of the Web service.
2.2 Mercell explicitly rejects any general (purchasing) conditions of the User. The user explicitly and exclusively accepts the provisions of the GT.
Article 3. NX Platform.
3.1 Mercell only provides a facilitating role through the Web service and is therefore in no way responsible for the accuracy, suitability and completeness of the Data, nor for any actions or omissions of the User in connection with the Web service or otherwise. Mercell is not a party in possible agreements between the Client and the Provider. Therefore, Mercell is neither responsible nor liable for the mutual fulfillment of obligations between the Client and the Provider, including the authority to enter into agreements, the fulfillment of any payment obligation and the correct execution of the work to be performed.
3.2 The User is solely responsible and liable for the content of the Data. User guarantees that the content of the Data is correct, up-to-date and reliable, does not violate the applicable laws and regulations, does not infringe on the intellectual property rights of third parties and is not otherwise unlawful and indemnifies Mercell against all costs and damage in case of non-compliance with this guarantee.
3.3 The User is not permitted to use the NX Platform or have it used by others 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 and/or the GT;
– the unlawful or criminal dissemination of non-public data;
– the distribution of punishable texts and images and sound material and/or material that in the opinion of Mercell 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 Mercell and / or third parties;
– computer access 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.
3.4 Mercell reserves the right to change, refuse and/or remove material/Data because the material/Data falls within the scope of Article 3.3, without any obligation to compensate any related damages/costs of the User.
3.5 The User 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 Users. The User is not permitted to initiate or continue processes that it can reasonably suspect may be a hindrance to other users and/or adversely affect the use of the NX Platform.
3.6 Mercell is entitled to adjust, change and/or update the NX Platform, in part or in whole.
Article 4. Account.
4.1 Users must activate their account and must enter all required information needed to complete the registration process. The User 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.
4.2 The user names provided by Mercell to the User are strictly personal. The User is responsible for preventing abuse of the provided (personal) combination of username and password.
Mercell is entitled to make changes to the login access procedure.
4.3 Mercell reserves the right to exclude Users from any (further) use of the Web service, inter alia by blocking the Domain or blocking and / or removing Users’ accounts.
Article 5. Warranty & Liability.
5.1 Under the condition that the User’s own infrastructure meets and continues to meet the pre-requisite conditions as described in the Specifications, Mercell guarantees that:
– the Additional Services to be provided by or on behalf of Mercell will be performed in a professional manner;
– the Web service meets the Specifications;
– its staff meets and will continue to meet the appropriate qualifications regarding education, expertise and experience.
5.2 Mercell does not guarantee that:
– the information on the Web service is correct, complete, suitable, current and not unlawful, including the Data of other Users;
– 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 Mercell and/or NX systems unlawfully.
5.3 If Mercell should be liable, this liability is limited to what is regulated in this provision. Mercell is not liable for damage, of any nature whatsoever, caused by Mercell acted on/or otherwise caused by incorrect and/or incomplete information/Data provided by or on behalf of the User.
Mercell 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 Mercell are at the risk of the User. The guarantee of this article 5 expires in case of improper use of the Web service.
If Mercell should be liable for any damage, the total liability of Mercell will never exceed the amount paid out by its insurer.
Mercell is only liable for the direct damage 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 have Mercell’s defective performance respond to the GT insofar as these can be attributed to Mercell; and
– the reasonable costs incurred to prevent or limit damage insofar as the User demonstrates that these costs have led to the limitation of direct damage as referred to in the GT.
5.4 Mercell is never liable for indirect damage, including consequential damage, lost revenue / profit, missed savings and damages/costs due to business interruption. Mercell is not liable for damage/ loss of Data. More specifically, Mercell is not liable for damage on the part of the User caused by third parties, whether or not these third parties use the Web service.
Article 6. Privacy & security.
6.1 The use of (personal) data obtained by the User through the Web service 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 draw up a separate written processing agreement.
6.2 Mercell will use best efforts 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 Mercell actually has access to the Data. Provided that, the security requirements of the NX Platform as part of the Specifications will be met by Mercell. Mercell does not guarantee that all these measures are effective under all circumstances. Mercell takes appropriate technical and organizational measures in this context, taking into account, among other things, the common practice in the industry.
Article 7. Intellectual property rights.
7.1 All intellectual property rights with regard to the Products or the NX Platform are and remain the property of Mercell. Mercell acknowledges that the intellectual property on the Data of the User is theirs and remains with them.
7.2 With due observance of the limitations of Article 5, Mercell indemnifies the Client against direct damage and / or costs arising from a failure to comply with this guarantee.
7.3 Without the prior written permission of Mercell, the User is not permitted to make available the Products, the Domain or any content thereof, in any way whatsoever, in part or in full, to third parties, nor 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 of the NX Platform.
7.4 Mercell is permitted to take technical measures to protect the Products or the Domain and / or the NX Platform respectively.
Article 8. General.
8.1 Confidentiality. Parties will observe strict confidentiality with regard to the information about each other’s organization, 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.
8.2 In writing. Parties acknowledge that under the GT reporting by e-mail falls under the heading “in writing.”
8.3 Applicability of GT. Once the GT have been applicable to a legal relationship between User and Mercell, the User is deemed to have agreed in advance to the applicability of the GT.
8.4 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. Mercell 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.
8.5 Choice of law/jurisdiction. The validity, construction and performance of GT and all resulting legal relationships, including agreements shall be governed by the laws of Delaware, United States. The exclusive jurisdiction for any dispute will be state or federal courts sitting in the State of Delaware but not before the parties have tried to resolve the dispute amicably.