These general terms and conditions (the “General Terms and Conditions”) describe the Terms and Conditions under which Data Providers, Data Users and App Developers (each as defined below) can make use of the Platform (as defined below). The use of NXTPORT API’s by Data Providers, Data Users and App Developers shall be governed by the General Terms and Conditions supplemented by the terms and conditions applicable to that specific NXTPORT API as made available through the Platform (the “API Terms and Conditions” and together with the General Terms and Conditions, the “Terms and Conditions”)
For the avoidance of doubt, an entity may, at the same time qualify as Data Provider, Data User or App Developer. In such case, all relevant provisions will apply.
The Platform is operated and managed by NxtPort CVBA, registered with the Crossroads Bank of Enterprises under company and VAT number BE 0429.672.881 and having its registered office at Brouwersvliet 33, Box 8, 2000 Antwerp (Belgium) (“NXTPORT”) and the Subscribers (as defined below), except when other contractual arrangements are made between NXTPORT and the Subscribers in writing.
The general Terms and Conditions of the Subscribers are not applicable and are therefore explicitly excluded, even if such general Terms and Conditions would contain a similar clause.
The Subscribers have previously been informed of the Terms and Conditions and have accepted all provisions thereof. NXTPORT reserves the right to modify unilaterally and at any time the Terms and Conditions. Any such amendments or changes will be effective immediately upon NXTPORT making such changes available on the Platform. If any changes are made to the Terms and Conditions, such changes will (a) only be applied prospectively and (b) not be specifically directed against a specific Subscriber but will apply to all similarly situated Subscribers using the Platform. Each Subscriber may terminate the Terms and Conditions upon written notice to NXTPORT if any change to the Terms and Conditions are unacceptable to such Party.
The following definitions shall apply to the Terms and Conditions, unless the context necessarily requires otherwise:
“Account” means the personal Account of the Subscriber which enables access to and use of the Platform;
“Application Developer” or “App Developer” means the entity which shall be able to make use of specified Data and NXTPORT’s API’s to be able to develop new solutions or applications;
“Article” means an Article of these General Terms and Conditions;
“Data” means any content uploaded and shared on the Platform, regardless
- the method of upload or sharing,
- the actor who is uploading;
“Data Controller” or “controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law;
“Data Processor” or “processor” means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller;
“Data Provider” means the entity which shall provide Data to be made available on or processed through the Platform;
“Data Sharing Rules” means the unambiguous and clear sharing rules applicable to the Data as described in Article 4.1.5;
“Data User” means the entity which shall be able to make use of specified Data;
“Intellectual Property Rights” or “IPR” means any and all now known or hereafter existing
(i) rights associated with works of authorship, including but not limited to copyrights, copyrightable works (including but not limited to mask work rights) and moral rights;
(ii) trademarks, trade dress, trade names, corporate names or service mark rights;
(iii) trade secret rights and other confidential information (including but not limited to ideas, information, improvements, specifications, drawings, programmer notes, discoveries and proposals);
(iv) patents, patent disclosures, and inventions (whether patentable or not) know-how and industrial property rights;
(v) logos, layout design rights, design rights, Database sui generis right, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; whether registered or not;
(vi) computer software programs (including but not limited to source code and object code), Data, Databases and documentation thereof; and
(vii) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world;
“Party” and “Parties” means NXTPORT and/or one or all of the Subscribers, as applicable;
“Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as (but not limited to) a name, an identification number, location Data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
“Platform”, as described in paragraph 3: NXTPORT’s Data sharing Platform which will collect, store, pool and exchange Data from a multitude of sources and various stages in the supply chain targeting the ports and logistics sector;
“Subscriber” means the Data Provider, Data User and App Developer who shall make use of the Platform and to which the Terms and Conditions shall be applicable;
“Technical Partner” means any technology provider or service provider engaged by NXTPORT for the further development or support of the Platform.
Within NXTPORT, a Data sharing Platform has been developed which will collect, store, pool and exchange Data from a multitude of sources and various stages in the supply chain targeting the ports and logistics sector (“Platform”). NXTPORT and Data Providers shall make certain confidential and proprietary operational Data available on the Platform, whereas Data Users and App Developers shall be able to make use of certain sets of Data through the use of the Platform and its APIs.
The Data Provider shall at all times retain all right, title and interest in his Data. Other than a license to use in accordance with Article 4.1.5, no other Party obtains any rights in such Data.
Upon termination of the Account by the Data Provider, the Data provided by the Data Provider which was accessible prior to termination of the Account, remains accessible by the Subscribers through the Platform. Data Provider acknowledges that it is practically impossible for NXTPORT to delete any and all Data provided by the Data Provider upon request of the Data Provider. The purpose of the Platform is to share the Data with other Subscribers who may themselves store such Data beyond NXTPORT’s control.
Data Provider may provide Data on a recurring basis in line with the instructions as set out on the Platform.
Data Provider shall make reasonable efforts to ensure that the Data are accurate and up-to-date at the time of its submission and shall provide updated versions of the Data whenever relevant and possible.
By uploading, creating or otherwise providing information or Data on the Platform, Data Provider grants to NXTPORT a worldwide, non-exclusive, limited, sublicensable, transferable and royalty-free license to:
(i) Make available the Data to registered Subscribers, in strict compliance with the instructions made available by the Data Provider through the Platform (the “Data Sharing Rules”), who will be granted the right to copy, share within their organisation, create derivatives from, make commercial use of and display specified Data, all in strict accordance with such Data Sharing Rules;
(ii) Ameliorate or enrich the Data in an identifiable manner through the Platform to the extent necessary to provide, maintain and improve the Platform;
(iii) Use, save, store and process any raw Data through the Platform to the extent necessary to provide, maintain and improve the Platform;
(iv) Use, aggregate or process the Data through the Platform to the extent necessary to provide, maintain and improve the Platform, including the usage for Data analysis via the Platform, solely in an aggregated and unidentifiable manner for the purpose of creating added value for the Data Provider.
The license provided by the Data Provider does not prevent the Data Provider from providing such Data to any other Party.
NXTPORT shall grant Data Provider a limited, non-exclusive, non-transferable, personal license to use, modify, upload, access and view its Data and the Platform in accordance with the Terms and Conditions and to define and process its Data Sharing Rules (the “License”). Data Provider is not allowed to use the Platform in a manner not authorised by NXTPORT. Data Provider shall use the Platform solely in full compliance with
(i) the Terms and Conditions;
(ii) any additional instructions or policies issued by NXTPORT, including, but not limited to, those posted within the Platform and
(iii) any applicable legislation, rules or regulations.
The Data Provider agrees to use the Platform and its Account only for its intended use as set forth in the Terms and Conditions. Within the limits of the applicable law, Data Provider is not permitted, unless explicitly allowed on the Platform, to
(i) adapt, alter, translate or modify in any manner the Platform;
(ii) decompile, reverse engineer, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Platform, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
(iii) use or copy the Platform except as expressly allowed under this Article 4.1;
(iv) gain unauthorized access to Accounts of other Subscribers or use the Platform or its Account to conduct or promote any illegal activities;
(v) use the Platform or its Account to generate unsolicited email advertisements or spam;
(vi) impersonate any person or entity, or otherwise misrepresent its affiliation with a person or entity;
(vii) use any high volume automatic, electronic or manual process to access, search or harvest information from the Platform or from Accounts of other Subscribers (including without limitation robots, spiders or scripts);
(viii) alter, remove, or obscure any copyright notice, digital watermarks, proprietary legends or other notice included in the Platform;
(ix) intentionally distribute any worms, Trojan horses, corrupted files, or other items of a destructive or deceptive nature or use the Platform or its Account for any unlawful, invasive, infringing, defamatory or fraudulent purpose; or
(x) remove or in any manner circumvent any technical or other protective measures on the Platform.
Except as expressly set forth herein, no express or implied license or right of any kind is granted to the Data Provider regarding the Platform or its Account thereof, including but not limited to any right to obtain possession of any source code, Data or other technical material relating to the Platform.
The Data Provider warrants that he is the owner of the Data or that he has the necessary rights, licenses or permissions to make the Data available in accordance with the Terms and Conditions.
The Data Provider warrants that the Data does not contain any restrictions such as confidentiality, privacy/personal information, sensitive Data or other restrictions which may affect the use of the Data as permitted under the Terms and Conditions and which may breach any rights of third Parties or applicable laws.
Notwithstanding Article 12, NXTPORT shall in no event be liable for the loss, deletion or corruption of any Data when stored upon the Platform. Data Provider may be fully liable for any inaccurate Data provided on the Platform, and any damages suffered by the Subscribers as a consequence hereof, if the Data Provider agreed with NXTPORT or the Subscribers, that such Party could rely on the correctness of such Data.
In no event will NXTPORT be liable for any damages suffered by the Data Provider due to sharing of Data through the Platform to the extent such sharing occurred in strict compliance with the Data Sharing Rules as defined or approved by the Data Provider.
Notwithstanding the license granted pursuant to Article 4.2.2, the Data User acknowledges that it shall not obtain any ownership, title or interest in the Data on the Platform.
Subject to the payment of the applicable Fees, NXTPORT shall grant the Data User a limited, non-exclusive, non-transferable, personal license to
(i) use, access and view specified Data on the Platform in accordance with the Data Sharing Rules; and
(ii) copy the Data, create derivative works from the Data, and to sublicense and distribute commercial products developed by or on behalf of the Data User incorporating the Data in accordance with the Terms and Conditions and the Data Sharing Rules (the “License”).
Data User is not allowed to use the Platform in a manner not authorized by NXTPORT or by the Data Provider in its Data Sharing Rules.
Data User shall use the Platform solely in full compliance with
(i) the Terms and Conditions;
(ii) any additional instructions or policies issued by NXTPORT, including, but not limited to, those posted within the Platform and
(iii) any applicable legislation, rules or regulations.
The Data User agrees to use the Platform and its Account only for its intended use as set forth in the Terms and Conditions. The Data User’s usage of the Account and Platform shall be limited to the restrictions as set forth under Article 4.1.7 of these General Terms and Conditions.
Unless otherwise agreed between NXTPORT, the Data Provider and the Data User, the Data is provided on an ‘as is’ basis. NXTPORT shall in no event be liable for any errors, malfunctions or inaccuracies in the Data provided on the Platform. The Data User shall make use of the Data at its own risk.
Notwithstanding the licenses granted pursuant to Article 4.3.2, NXTPORT acknowledges that it shall not obtain any right, title or interest in any software, content or digital material developed by the App Developer on the basis of any Data and/or NXTPORT’s API’s made available through the Platform (“Products”) in accordance with the Terms and Conditions, including any IPR in these Products.
By uploading, creating or otherwise providing information or Data on the Platform, the App Developer grants NXTPORT a non-exclusive, royalty-free, worldwide, sublicensable, transferable and irrevocable license to:
(i) Use, copy, store, modify, transmit and display such Data to the extent necessary to provide and maintain the Platform;
(ii) Use, perform, make available, display to the public, reproduce, distribute and import your Products and use your name, likeness or brand (which include all of your trademarks, services marks, logos, brand names or trade names (“Marks”)) to the extent it is incorporated into the Products and to the extent the Products are distributed on the NXTPORT marketplace;
(iii) Use, perform, make available, display to the public, reproduce and distribute any app developed by the App Developer with the use of any Data and/or NXTPORT’s API’s made available through the Platform, and to the extent it is distributed on the marketplace (“Apps”);
(iv) Sublicense the foregoing rights to NXTPORT affiliates, Technical Partners, or any third Parties working with NXTPORT as development partners, hosting facilities and in similar capacities, in order to enable them to perform their services for NXTPORT.
Subject to the payment of the applicable Fees, NXTPORT grants App Developer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use the Platform to develop and distribute Products (as defined further below) in accordance with the Terms and Conditions (the “License”). App Developer is not allowed to use the Platform in a manner not authorised by NXTPORT. The App Developer shall use the Platform solely in full compliance with
(i) the Terms and Conditions;
(ii) any additional instructions or policies (including the technical API documentation, other technical guidelines and documentation) issued by NXTPORT, from time to time, including, but not limited to, those posted within the Platform and
(iii) any applicable legislation, rules or regulations.
The App Developer agrees to use the Platform and its Account only for its intended use as set forth in the Terms and Conditions. The App Developer’s usage of the Account and Platform shall be limited to the restrictions as set forth under Article 4.1.7 of these General Terms and Conditions.
Notwithstanding Article 12, NXTPORT shall not be liable for any failures, malfunctions, errors or performance issues of any of the Products developed and distributed by the App Developer. The App Developer shall be fully liable for, and NXTPORT shall not have any responsibility for the execution, support and maintenance of the Products and/or any complaints pertaining hereto.
NXTPORT shall adopt and use appropriate safeguards, in accordance with the instructions as set out on the Platform, to preserve the confidentiality, integrity and availability of the Data and to prevent its use or disclosure, other than as permitted by the Terms and Conditions, or as required by law.
Detailed controls for how NXTPORT handles and secures the Data are available on the IT Security & Privacy page of the NXTPORT Platform.
The fees to be paid shall include the access to the Platform through Subscriber’s Account in accordance with the pricing schedules (“Fees”). Payment of such Fees shall be managed by a Technical Partner of NXTPORT through the Subscriber’s Account on the Platform. The Platform will provide for detailed invoicing and payment schedules.
All fees are in EURO unless stated otherwise and do not include any taxes and duties such as VAT, which shall be charged additionally to the Subscriber.
In the event the Subscriber disputes any portion of an invoice, such Subscriber shall notify NXTPORT of such disputed amount and the basis for the Subscriber’s dispute within fifteen calendar days from the invoice date via registered mail, failure of which shall result in the invoice being irrevocably deemed accepted by the Subscriber. Any undisputed portion shall be paid as provided herein.
In the event of non-payment or insufficient payment on the due date, the following shall apply automatically and without any formal notice or court order being required:
(i) all amounts not paid when due shall bear an APR interest rate of 12%, capitalised annually;
(ii) without prejudice to NXTPORT’s right to prove higher damages, the Subscriber shall owe a flat fee compensation equivalent to 10% of the unpaid invoice amount with a minimum of EUR 100 EUR;
(iii) Subscriber shall pay all judicial and extrajudicial costs;
(iv) all other amounts due shall become immediately payable, regardless of the agreed payment terms;
(v) NXTPORT is entitled to suspend the performance and/or discontinue any agreements with the Subscriber.
All software, plans, documents, know-how, Data and other information relating to a Party’s business, technology, products or services or other proprietary or confidential information provided by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) under the Terms and Conditions shall be considered and treated as confidential (the “Confidential Information”). The Confidential Information remains at all times the property of the Disclosing Party.
(i) only use such Confidential Information for the purposes of complying with its obligations under the Terms and Conditions;
(ii) store such Confidential Information with at least the same level of care applied when storing its own Confidential Information, and in no case with a less than reasonable level of care; and
(iii) not disclose such Confidential Information to any third Party.
The confidentiality obligations as specified in this Article 7 shall not apply to information which:
(i) has become publicly known in a way other than by violation by the Receiving Party of its obligations under the Terms and Conditions;
(ii) was disclosed to the Receiving Party by a third Party that is not under any obligation of confidentiality to the Disclosing Party;
(iii) was developed by the Receiving Party independent of the Disclosing Party’s Confidential Information, or was already known by the Receiving Party prior to the information being disclosed by the Disclosing Party; and/or
(iv) is disclosed with the written consent of the Disclosing Party.
Notwithstanding Article 7.2, the Receiving Party may disclose the Confidential Information to its employees, consultants and suppliers which are directly involved with and/or should be informed of such Confidential Information for the execution of the Receiving Party’s obligations as set forth in the Terms and Conditions. The Receiving Party shall impose on them confidentiality obligations which are at least similar to those included in this Article 7.
To the extent any Personal Data is controlled or processed by NXTPORT, such processing shall be done in accordance with the applicable Data protection legislation.
For detailed information please check: http://www.nxtport.eu/dataprotection
NXTPORT may collect any Personal Data, such as (but not limited to) name and e-mail address, from the Subscribers concerning their employees or consultants. Such Personal Data shall be used by NXTPORT solely for the purpose of the management of the Account and the Platform, as well as for the contractual management of the client relationship with the Subscriber (invoicing, renewal request, ...).
In this regard, NXTPORT shall act as Data Controller.
NXTPORT may be provided access to any Personal Data and/or must process any Personal Data on behalf of the Subscribers when performing its obligations under the Terms and Conditions.
In this regard, the Parties record their intention that the Subscriber shall act as “Data controller” and NXTPORT shall act as “Data processor”, as specified in the Data Protection Act and in any such case:
(i) NXTPORT acts exclusively on behalf of and upon the lawful instructions of the Subscriber, and shall not process any Personal Data in this regard for its own purposes;
(ii) The Subscriber acknowledges and agrees that the Personal Data may be transferred or stored in any country of the European Union, in order to carry out NXTPORT’s obligations under the Terms and Conditions;
(iii) The Subscriber shall ensure that he is entitled to transfer the relevant Personal Data to NXTPORT so that NXTPORT may lawfully use, process, store and transfer the Personal Data in accordance with the Terms and Conditions;
(iv) The Subscriber shall ensure that the relevant users have been informed of, and have signed the appropriate legal mechanisms to such use, processing, storage and any lawful instructions reasonably given by the Subscriber from time to time.
NXTPORT and the Subscriber shall each take the appropriate technical and organizational measures which are required to protect the Personal Data against accidental or unauthorized destruction, accidental loss, as well as against any modification of or access to, and any other unauthorized processing of the Personal Data.
Each Data subject must be informed of the existence of his/her rights of access, rights of rectification and erasure, and right to object to Data processing at any time and free of charge.
Detailed controls on how NXTPORT handles and secures Personal Data and Back-ups are available on the IT Security & Privacy page of the NXTPORT Platform.
For more details, consult: http://www.nxtport.eu/ITSecurity
NXTPORT is the sole and exclusive owner of all IPR in the Platform. Such IPR may not be modified, copied, printed, reproduced, distributed, republished, performed, downloaded, displayed, posted, transmitted and/or otherwise used in any form or by any means, unless expressly permitted in the Terms and Conditions.
All rights, titles and interests in and to the Platform or any part thereof not expressly granted to the Subscribers in the Terms and Conditions are reserved by NXTPORT and its licensors. Except as expressly set forth herein, no express or implied license or right of any kind is granted to the Subscribers regarding the Platform or any part thereof, including any right to obtain possession of any source code, Data or other technical material related to the Platform.
NXTPORT reserves the right, but is not obliged, to review and remove any Data or information which is deemed to be in violation with the provisions of the Terms and Conditions or otherwise inappropriate, deemed to be in violation of any rights of third Parties or any applicable legislation or regulation, may materially and adversely impact the functioning of the Platform, or pose a security risk to Subscribers.
If NXTPORT becomes aware or suspects, in its sole discretion, any violation by Subscriber of the Terms and Conditions, or any other instructions, guidelines or policies issued by NXTPORT, then NXTPORT may suspend or limit Subscriber’s access to its Account. The duration of any suspension by NXTPORT will be until Subscriber has cured the breach which caused such suspension or limitation.
NXTPORT may delete any Data related to the Subscriber after its Account is closed, and such Data shall not be recoverable. NXTPORT shall not be responsible for any Data that is lost due to the closing of the Account closed.
Unless explicitly agreed otherwise, all obligations of NXTPORT regarding the provision of the Platform are considered to be “best efforts obligations” ("middelenverbintenissen" in Dutch, or "obligations de moyen" in French). The Subscribers agree that NXTPORT shall exercise its activities and execute its obligations relating to the Platform as an independent service provider.
NXTPORT will use reasonable efforts to make each NXTPORT API available for a minimum period of thirty-six (36) months, unless otherwise set forth in the API Terms and Conditions (the “Minimum Lifespan”). Following such Minimum Lifespan, NXTPORT may, following prior notice of twelve (12) months through the Platform, in its sole discretion decide to discontinue such NXTPORT API.
The Subscriber shall receive certain Account information from NXTPORT to be able to access its Account on the Platform, and shall be free to set up Account communities within its own Account to provide access to several authorized individuals appointed by the Subscriber.
The Subscriber shall be solely responsible for all access to and use of the Platform and its Account through its Account details and passwords.
12.1 To the maximum extent permitted under applicable law, NXTPORT shall only be liable for personal injury or any damages resulting from
(i) its gross negligence;
(ii) its willful misconduct or
(iii) any fraud committed by NXTPORT and shall in any event be limited to the amounts of fees paid by the Subscriber during a period of twelve (12) months preceding the claim or the amount NXTPORT can reclaim from its insurer, whatever is less.
12.2 To the extent legally permitted under applicable law, NXTPORT shall not be liable to the Subscribers or any third Party, for any special, indirect, exemplary, punitive, incidental or consequential damages of any nature including, but not limited to damages or costs due to loss of profits, Data, revenue, goodwill, production of use, procurement of substitute services, or property damage arising out of or in connection with the Platform under the Terms and Conditions, regardless of the cause of action or the theory of liability, even if NXTPORT has been notified of the likelihood of such damages. The limitation in this Article 12.2 shall not apply to the obligations of NXTPORT under Article 14 (“Indemnification”).
12.3 Subscribers agree that NXTPORT can only be held liable as per the terms of this Article 12 to the extent damages suffered by Subscribers are directly attributable to NXTPORT. For the avoidance of doubt, NXTPORT shall not be liable for any claims resulting from (i) Subscribers’ unauthorized use of the Platform, (ii) Subscribers’ or any third Party’s modification of (any parts) of the Platform, (iii) Subscribers’ unauthorized use of the Platform in combination with any non-NXTPORT products or services, (iv) the nature, accuracy, completeness or legality of the Data provided by a Data Provider, (v) the use by Subscribers or any third Party of the Data, (vi) any damages directly or indirectly resulting from the use of the Data by Subscriber or its employees, consultants, subsidiaries or trading partners. The exclusions and limitations of liability under this Article shall operate to the benefit of any of NXTPORT’s affiliates and subcontractors under the Terms and Conditions to the same extent such provisions operate to the benefit of NXTPORT.
12.4 Notwithstanding the foregoing and subject to Article 12.1, NXTPORT may be held liable for breach of confidentiality or IT security breach towards the Data Provider to the extent set forth on the Service Level section of the Platform.
The Platform may be unavailable from time to time, may be offered on a limited basis, or may vary depending on your region or device. NXTPORT strives to keep the Platform up and running; however, all online services suffer occasional disruptions and outages. More details on the guaranteed up-time and resolutions offered by NXTPORT are to be found on the Service Level section of the Platform.
Except as expressly provided in this Article 13 and to the maximum extent permitted by applicable law, the Platform is provided “AS IS,” and NXTPORT makes no (and hereby disclaims all) other warranties, covenants or representations, or conditions, whether written, oral, express or implied including, without limitation, any implied warranties of satisfactory quality, course of dealing, trade usage or practice, merchantability, suitability, availability, title, non-infringement, or fitness for a particular use or purpose, with respect to the use, misuse, or inability to use the Platform or any other products or services provided to the Subscribers by NXTPORT. NXTPORT does not warrant that all errors can be corrected, or that access to or operation of the Platform shall be uninterrupted, secure, or error-free. Any service levels provided by NXTPORT shall be provided in accordance with the instructions as set out on the Platform. The Subscribers acknowledge and agree that there are risks inherent to transmitting information over and storing information on the internet and that NXTPORT is not responsible and cannot be held liable for any losses of Subscribers’ Data, including but not limited to the Data.
Subscribers acknowledge to solely use the Platform in accordance with
(i) the Terms and Conditions, and
(ii) any applicable legislation, rules or regulations (including any legislation regarding the transfer of Data between countries).
Subscribers agree that any use of the Platform contrary to or in violation of these representations and warranties shall constitute unauthorized and improper use of the Platform for which NXTPORT cannot be held liable.
NXTPORT shall defend and indemnify Subscribers as specified herein against any founded and well-substantiated claims brought by third Parties to the extent such claim is based on an infringement of the IPR of such third Party by the Platform and excluding any claims resulting from
(i) Subscriber’s unauthorized use of the Platform,
(ii) any Data provided by a Data Provider,
(iii) Subscribers’ or any third Party’s modification of any of the Platform.
Such indemnity obligation shall be conditional upon the following:
(i) NXTPORT is given prompt written notice of any such claim;
(ii) NXTPORT is granted sole control of the defense and settlement of such a claim;
(iii) upon NXTPORT’s request, the Subscribers fully cooperate with NXTPORT in the defense and settlement of such a claim, at NXTPORT’s expense; and
(iv) the Subscribers make no admission as to NXTPORT’s liability in respect of such a claim, nor do the Subscribers agree to any settlement in respect of such a claim without NXTPORT’s prior written consent. Provided these conditions are met, NXTPORT shall indemnify the Subscribers for all damages and costs incurred by the Subscribers as a result of such a claim, as awarded by a competent court of final instance, or as agreed to by NXTPORT pursuant to a settlement agreement.
In the event the Platform, in NXTPORT’s reasonable opinion, is likely to or becomes the subject of a third-Party infringement claim (as per Article 14.1), NXTPORT shall have the right, at its sole option and expense, to:
(i) modify the ((allegedly) infringing part of the) Platform so that it becomes non-infringing while preserving materially equivalent functionalities;
(ii) obtain for the Subscribers a license to continue using the Platform in accordance with the Terms and Conditions; or
(iii) terminate the Terms and Conditions and refund to the Subscribers an amount equal to a pro rata portion of the fees for that portion of the Platform which is the subject of such infringement.
The foregoing states the entire liability and obligation of NXTPORT and the sole remedy of the Subscribers with respect to any infringement or alleged infringement of any IPR caused by the Platform or any part thereof.
Subscribers hereby agree to indemnify and hold harmless NXTPORT and its current and future affiliates, officers, directors, employees, agents and representatives from each and every demand, claim, loss, liability, or damage of any kind whatsoever, including reasonable attorney’s fees, whether in tort or in contract, that it or any of them may incur by reason of, or arising out of, any claim by any third Party with respect to:
(i) any breach or violation by Subscribers of any provisions of the Terms and Conditions or any other instructions or policies issued by NXTPORT;
(ii) any Data or Products violating any IPR of a third Party; and
(iii) fraud, intentional misconduct, or gross negligence committed by Subscribers.
The Account may be terminated by the Subscriber at any time upon written notification to NXTPORT, without any justification.
Upon expiration of the Account and unless otherwise agreed upon, the Account shall be tacitly renewed for a subsequent period of time.
NXTPORT may terminate with immediate effect the Terms and Conditions and Subscriber’s right to access and use of the Platform
(i) if NXTPORT believes or has reasonable grounds to suspect that such Subscriber is violating the Terms and Conditions (including but not limited to any violation of the IPR of NXTPORT) or any other guidelines or policies issued by NXTPORT, or
(ii) if such Subscriber remains suspended for non-payment for more than 60 (sixty) days.
Upon the termination of the Terms and Conditions for any reason whatsoever in accordance with the provisions of the Terms and Conditions, at the moment of effective termination:
(i) the Subscribers will no longer be authorized to access or use the Platform;
(ii) NXTPORT may delete all Data associated with Subscriber’s Account, including but not limited to the Data, on the Platform; and
(iii) all rights and obligations of NXTPORT or Subscriber under the Terms and Conditions shall terminate, except those rights and obligations under those Articles specifically designated in Article 16.2.
NXTPORT shall not be liable for any failure or delay in the performance of its obligations with regard to the Platform if such delay or failure is due to causes beyond its control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders, telecommunications, network, computer, server or Internet downtime, unauthorized access to NXTPORT’s information technology systems by third Parties or any other cause beyond the reasonable control of NXTPORT (the “Force Majeure Event”). NXTPORT shall notify Subscriber of the nature of such Force Majeure Event and the effect on our ability to perform our obligations under the Terms and Conditions and how NXTPORT plans to mitigate the effect of such Force Majeure Event.
Articles 9, 12, 13 and 14 shall survive any termination or expiration of these General Terms and Conditions.
The Terms and Conditions shall be exclusively governed by and construed in accordance with the laws of Belgium, without giving effect to any of its conflict of law principles or rules. The courts and tribunals of Antwerp shall have sole jurisdiction should any dispute arise relating to the Terms and Conditions.