General terms and conditions
Version 2.1 published 19 September 2023 – this version replaces all previous versions
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, and each a “Subscriber” of the Platform) can make use of the Platform (as defined below) and/or procure other services from NxtPort. The use of the Platform, the NxtPort API’s by Data Providers, Data Users and App Developers and other services rendered by NxtPort 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 commercial arrangements between NxtPort and the Subscriber and the documents referenced therein, the “Terms and Conditions”). These General Terms and Conditions are not applicable to any Subscribers that entered into a specific customer agreement with NxtPort, whether or not concluded prior to or after the acceptance of these General Terms and Conditions. In such case the specific customer agreement with NxtPort will apply.
For the avoidance of doubt, each Subscriber may, at the same time qualify as Data Provider, Data User and/or App Developer. In such case, all relevant provisions will apply.
The Platform is operated and managed by NxtPort International BV, registered with the Crossroads Bank of Enterprises under company and VAT number BE0761.774.157 and having its registered office at Sint-Pietersvliet 7, 2000 Antwerp (Belgium) (“NxtPort”).
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.
Prior to registration or login into the Platform, the Subscribers have been informed of the Terms and Conditions and have accepted all provisions thereof. NxtPort will, following pre-registration by a prospect Subscriber, activate a Subscriber’s account based upon a review of the provided credentials. For activation, each Subscriber is to provide its corporate details (including VAT number) and any other registration information reasonably requested by NxtPort. By accessing the Platform, the Subscribers accept the Terms and Conditions (including for the avoidance of doubt the applicable Service Level Agreement and Pricing Schedules). By using a specific NxtPort API, the Subscribers accept the API Terms and Conditions (including for the avoidance of doubt the applicable Service Level Agreement). 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 in accordance with art. 17.4 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 is 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;
“API” means an application programming interface, a set of clearly defined methods of communication, to interact with the Platform and to provide, obtain or process Data;
“Application Developer” or “App Developer” means a User, who develops one or more Applications on the Platform;
“Affiliates” means any entity controlling or controlled by or under common control with a Party, where “control” is defined as the ownership of more than 50% of the equity or other voting interests of such entity or the power to direct or cause the direction of the management or policies of such entity, whether through ownership, voting securities, contract or otherwise.
“Article” means an Article of these General Terms and Conditions;
“Authorized User” means the User who has the right to see a specific set of Data available on the Platform pursuant to the applicable Data Sharing Rules;
“Data” means any content uploaded and shared on the Platform, regardless of the method of upload or sharing, or whether the Data was the result of an upload, the combination with other Data or enrichment of the Data by NxtPort, the Subscriber or a User;
“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 European Union or Member State law, the controller or the specific criteria for its nomination may be provided for by European 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;
“Data User” means the entity which shall be able to make use of specified Data;
“Fair Use Policy” means the NxtPort Fair Use Policy as made available through the Platform, as may be amended from time to time;
“Fees” shall mean the amounts payable, if any, by the Data Users or App Developers, consisting of a subscription fee, a data fee and/or a transactional fee, in accordance with the Terms and Conditions and as further detailed in API Specific Terms and/or the Platform;
“Intellectual Property Rights” or “IPR” means any and all now known or hereafter existing
- rights associated with works of authorship, including but not limited to copyrights, copyrightable works (and moral rights;
- trademarks, trade dress, trade names, or corporate names;
- trade secret rights;
- patents, patent disclosures, and inventions (whether patentable or not) know-how and industrial property rights;
- logos, layout design rights, design rights and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; whether registered or not;
- database rights; and
- 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 Article 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;
“Pricing Schedule”, means the pricing schedule made available to the Subscriber setting out the subscription fee(s), a transactional fee and/or a data fee, as the case may be, applicable to the use of the Platform, an API, or a specific set of Data;
“Service Level Agreements” means the Service Level Agreements provided by NxtPort through the Platform as accepted by the Subscriber, as may be amended from time to time by NxtPort in accordance with these Terms and Conditions. The Service Level Agreements can be defined on a Platform level or in API Terms and Conditions. The Service Level Agreements shall be considered to form an integral part of these Terms and Conditions or the API Terms and Conditions and are incorporated by reference;
“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;
“User” means a registered user of the Platform that qualifies as one or more of following: Data Provider, Data User or App Developer.
Description 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 Data available on the Platform, whereas Data Users and App Developers shall have access to such Data through the Platform and its APIs.
It is agreed that, unless and until a Data Provider has accepted a specific set of API Specific Terms and applicable Data Sharing Rules, no Data of the Subscriber will be shared with any User. It is agreed that, unless and until the account of a Subscriber has been activated by NxtPort, Subscriber will not be granted access to the Platform.
License by Subscriber
Data Provision. By uploading, creating, or otherwise providing information or Data on the Platform, Subscriber grants to NxtPort a worldwide, non-exclusive, non-transferable, and non-sublicensable license which is limited to:
- make the Data available to Authorized Users, in strict compliance with the instructions made available by the Subscriber through the Platform (the “Data Sharing Rules”), who will, subject to payment of a Fee, if any, be granted the right to copy, share within their organization, create derivatives from, make commercial use of (to the extent explicitly allowed pursuant to the API Specific Terms)and display specified Data, all in strict accordance with the Data Sharing Rules;
- ameliorate or enrich the Data in an identifiable manner through the Platform to the extent necessary to provide the Platform in strict accordance with the Data Sharing Rules;
- use, save, store, and process any raw 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 and only for the purpose of creating added value for the Subscriber.
The license provided by the Subscriber does not prevent the Subscriber from providing such Data to any other party.
Applications. By uploading, creating, or otherwise distributing an Application on the Platform, the Subscriber grants NxtPort a worldwide, non-exclusive, non-transferable, and non-sublicensable license which is limited to:
- Use, perform, make available, display to the public, reproduce and distribute the Application in accordance with the instructions given by the Subscriber through the Platform and use Subscriber’s name, likeness or brand (which include all of Subscriber’s trademarks, services marks, logos, brand names or trade names (“Marks”)) to the extent it is incorporated into the Application, all solely to the extent required for the distribution of the Application on the Platform to Subscribers;
- use, copy, store, modify, transmit and display such Application to the extent necessary to provide and maintain the Platform;
- 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, solely in order to enable them to perform their services for NxtPort and only in so far, those services are necessary for the provision and maintenance of the Platform.
NxtPort is not allowed to use the Data in a manner not authorized by Subscriber. NxtPort shall use the Data solely in full compliance with
- the Data Sharing Rules and
- any applicable legislation, rules, or regulations.
Data Provider acknowledges that it may be practically impossible for NxtPort to delete all Data provided by the Data Provider upon request of the Data Provider and that its Data may remain available for Authorized Users even after termination of its Account. The purpose of the Platform is to share the Data with other Subscribers who may themselves store such Data beyond NxtPort’s control. Such Subscribers will be fully liable for full compliance with the Terms and Conditions.
License by NxtPort
Data Provision. NxtPort shall grant Subscriber a worldwide, limited, non-exclusive, non-transferable, limited sublicensable (as set out in this Article) license to use, modify, upload, access and view its Data and the Platform in accordance with these Terms and Conditions and to define and process its Data Sharing Rules. 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 these 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 Users.
Data Usage. NxtPort shall grant the Subscriber a worldwide, limited, non-exclusive, non-transferable, personal license to copy the Data, create derivative works from the Data, and to sublicense and distribute commercial products developed by or on behalf of the Subscriber incorporating the Data in accordance with the Terms and Conditions and in strict accordance with and as permitted under the applicable Data Sharing Rules.
App development. NxtPort grants Subscriber a limited, non-exclusive, non-transferable, non-sublicensable license to use the Platform to develop and distribute Applications in accordance with these Terms and Conditions. The App Developer warrants to only allow use of the Data in accordance with the respective applicable Data Sharing Rules. Subscriber may sub-license this license to any third party working with Subscriber as development partners and in similar capacities, solely to enable them to perform their services for Subscriber and only in so far, those services are necessary for the development, creation of derivative works and commercial products on behalf of Subscriber in accordance with these Terms and Conditions. If the Subscriber grants any rights, pursuant to this Section to third parties with respect to the Platform, such third parties will be bound by this Terms and Conditions and the Subscriber agrees to be jointly and severally liable for any actions of such third parties related to their use of the Platform.
Restrictions on use. The Subscriber agrees to use the Platform and its Account only for its intended use as set forth in these Terms and Conditions, and always in accordance with the Fair Use Policy. Within the limits of the applicable law, Subscriber is not permitted, unless explicitly allowed on the Platform, to
- adapt, alter, translate or modify in any manner the Platform;
- 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;
- use or copy the Platform except as expressly allowed under this Article 4;
- gain unauthorized access to Accounts of other Users or use the Platform or its Account to conduct or promote any illegal activities;
- use the Platform or its Account to generate unsolicited email advertisements or spam;
- use the Data for any illegal activities;
- use the Data through a specific API for any other purposes than the intended purpose of such API;
- impersonate any person or entity, or otherwise misrepresent its affiliation with a person or entity;
- use any high volume automatic, electronic or manual process to access, search or harvest information from the Platform other than through the documented use of the NxtPort APIs;
- alter, remove, or obscure any copyright notice, digital watermarks, proprietary legends or other notice included in the Platform;
- 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
- remove or in any manner circumvent any technical or other protective measures on the Platform.
The Subscriber is not allowed to use the Platform in a manner not authorized by NxtPort and these Terms and Conditions. Subscriber shall use the Platform solely in full compliance with
- these Terms and Conditions,
- any additional instructions or policies issued by NxtPort, including, but not limited to, those posted within the Platform and
- any applicable legislation, rules or regulations. If NxtPort becomes aware or suspects, in its sole reasonable and substantiated discretion, any violation by Subscriber of the Terms and Conditions or any other instructions, guidelines or policies (including the Fair Use Policy) 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.
No implied licenses. Except as expressly set forth herein, no express or implied license or right of any kind is granted to the Subscriber 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.
Accounts. 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 register Authorized Users (i.e. employees, contractors, consultants or professional advisers of the Subscriber (or of its Affiliates, in accordance with the section ‘Sublicensing to Affiliates’ below). The Subscriber shall be liable for any breaches by its Authorized Users of the terms and conditions of these Terms and Conditions. The Subscriber shall be solely responsible for all access to and use of the Platform and its Account through its Account details and passwords.
Sublicensing to Affiliates. Subscriber may sub-license the licenses provided for in this Article to its Affiliates, by registering such Affiliates in the Platform. By registering such Affiliates, Subscriber warrants that it has the authority to bind such Affiliates. If the Subscriber grants any rights, pursuant to this Section, to Affiliates with respect to the Platform, such Affiliates will be bound by these Terms and Conditions and the Subscriber agrees to be jointly and severally liable for any actions of such Affiliates related to their use of the Platform and the Data.
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 Information Security Policy page of the NxtPort platform.
Any professional services (other than the provisioning of the Platform), (the “Professional Services”) will be rendered by NxtPort with the required care based on an offer provided to the Subscriber. Art. 7, 8, 9, 10, 11, 13 through 16 are applicable to these Professional Services.
The Subscriber is granted a personal, restricted, worldwide license on the deliverables provided in the course of the Professional Services (the “Deliverables”) for the full duration of the underlying Intellectual Property Rights, for use in its internal business.
A Fee will be charged to the Data Users and App Developers, consisting of a subscription fee, a transactional fee and/or a data fee in accordance with the Pricing Schedules (the “Fees”). The Pricing Schedules are made available through the Platform. Unless otherwise agreed, payment of such Fees shall be managed through the Subscriber’s Account on the Platform.
No costs will be charged to Data Providers for the provisioning of the Data. Each Data Provider can freely determine in his dashboard the data fee applicable to the use of its Data. NxtPort will transfer all received data fees, 30 days after payment by the Data User, to the Data Provider. At any given moment, a Data Provider will be free to adjust its data fees downwards. A Data Provider can only once every three (3) months increase its data fees.
Invoicing and Payments
Unless otherwise provided for in the Platform, all undisputed invoices are due and payable by the Subscriber within thirty (30) days from the invoice. All payments made by the Subscriber to NxtPort under these Terms and Conditions shall be final and non-refundable.
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 (15) 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:
- all amounts not paid when due shall bear an APR interest rate of 12%, capitalized annually.
- 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.
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 always remains the property of the Disclosing Party.
The Receiving Party shall
- only use such Confidential Information for the purposes of complying with its obligations under the Terms and Conditions;
- 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
- not disclose such Confidential Information to any third Party.
The confidentiality obligations as specified in this Article 8 shall not apply to information which:
- has become publicly known in a way other than by violation by the Receiving Party of its obligations under the Terms and Conditions;
- was disclosed to the Receiving Party by a third Party that is not under any obligation of confidentiality to the Disclosing Party;
- 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
- is disclosed with the prior written consent of the Disclosing Party.
Notwithstanding Article 8.2, 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 8.
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.
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.
Data processor. NxtPort may be provided access to any Personal Data and/or must process any Personal Data on behalf of the Subscriber when performing its obligations under these 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 General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC)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. All such processing shall be governed by the terms and conditions of the NxtPort Data Processor Agreement, as attached to these Terms and Conditions as 18 Annex 1: NxtPort Data Processor Agreement.
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 Information Security Policy page of the NxtPort platform.
Intellectual Property Rights
The Platform, including any rights, title and interest (including Intellectual Property Rights) therein, shall at all times remain the sole and exclusive property of NxtPort and/or its licensor, and the Subscriber shall obtain no rights, title or interest (including without limitation Intellectual Property Rights) in the Platform pursuant to these Terms and Conditions except the rights expressly granted hereunder. The Platform (including the Intellectual Property Rights) 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 these Terms and Conditions. Except as expressly set forth herein, no express or implied license or right of any kind is granted to the Subscriber 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.
The Deliverables, including any rights, title and interest (including Intellectual Property Rights) therein, shall at all times remain the sole and exclusive property of NxtPort and/or its licensor, and the Subscriber shall obtain no rights, title or interest (including without limitation Intellectual Property Rights) in the Deliverables pursuant to these Terms and Conditions except the rights expressly granted hereunder.
The Data including any rights, title and interest (including Intellectual Property Rights, if any) therein, shall at all times remain the sole and exclusive property of the Data Provider and/or its licensor and NxtPort and the Authorized Users shall obtain no rights, title or interest (including without limitation Intellectual Property Rights) in the Data pursuant to these Terms and Conditions except the rights expressly granted hereunder. The Data 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 this Terms and Conditions.
The App Developer (or its licensor’s) shall always retain all right, title and interest in his App. Other than a license to use in accordance with these Terms and Conditions, no other party obtains any rights in such App. The App (including the Intellectual Property Rights) 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 these Terms and Conditions. Except as expressly set forth in Article 4, no express or implied license or right of any kind is granted to NxtPort or other Users regarding the App or any part thereof.
NxtPort’s Rights & Obligations
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.
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.
Subscriber’s Rights and Obligations
The Subscriber shall receive 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 and through its account community.
- To the maximum extent permitted under applicable law, NxtPort’s liability arising out of or in connection with these Terms and Conditions shall not exceed
- the amounts of Fees paid by the Subscriber during a period of twelve (12) months preceding the claim or
- EUR 25,000. The limitation in this Section 1 shall not apply to the damages resulting out of the breach by NxtPort of its obligations under Article 8 and 9.
- 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, reconstruction of Data, revenue, goodwill, production or 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.
- Subscribers agree that NxtPort can only be held liable as per the terms of this Article 13 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
- Subscribers’ unauthorized use of the Platform,
- Subscribers’ or any third Party’s modification of (any parts) of the Platform,
- Subscribers’ unauthorized use of the Platform in combination with any non-NxtPort products or services,
- the nature, accuracy, completeness or legality of the Data provided by a Data Provider,
- the use by Subscribers or any third Party of the Data,
- 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.
- Notwithstanding the foregoing and subject to Article 13-1 and 13-2, NxtPort may be held liable for an IT security breach towards the Data Provider to the extent set forth in the Service Level Agreement.
- To the maximum extent permitted under applicable law, NxtPort’s liability arising out of or in connection with these Terms and Conditions shall not exceed
Warranties and disclaimers
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. NxtPort warrants to provide the Platform and the NxtPort APIs in accordance with the service levels as set out in the applicable Service Level Agreements.
Except as expressly provided in this Article 14 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, 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 and under the conditions as et out in the applicable Service Level Agreement. 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 loss or corruption of Subscribers’ Data, except for any loss caused by any attributable negligence or default of NxtPort.
Subscribers acknowledge to solely use the Platform in accordance with
- The Terms and Conditions, and
- 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.
The Subscriber warrants that he is the owner of the Data uploaded by the Subscriber or that he has the necessary rights, licenses or permissions to make such Data available in accordance with these Terms and Conditions. The Subscriber warrants that such Data does not contain any restrictions such as confidentiality, privacy/personal information, sensitive data or other restrictions which would cause the use of the Data as permitted under these Terms and Conditions to breach any rights of third parties or applicable laws.
A Subscriber shall only be liable for any errors, malfunctions or inaccuracies in the Data provided on the Platform and will only be held liable for any errors or inaccuracies in enrichments or ameliorations of such Data to the extent specific, explicit warranties were given by such Subscriber on the accuracy of the Data or its enrichments or ameliorations in the API Specific Terms.
NxtPort hereby agrees to indemnify and hold harmless Subscribers 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 based on an infringement of the IPR of such third Party by the Platform and excluding any claims resulting from
- Subscriber’s unauthorized use of the Platform;
- any Data provided by a Data Provider;
- Subscribers’ or any third Party’s modification of any of the Platform; and
- any Application running on the Platform developed by an Application Developer.
Such indemnity obligation shall be conditional upon the following:
- NxtPort is given prompt written notice of any such claim;
- NxtPort is granted sole control of the defense and settlement of such a claim;
- upon NxtPort’s request, the Subscribers fully cooperate with NxtPort in the defense and settlement of such a claim, at NxtPort’s expense; and
- 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 15.1), NxtPort shall have the right, at its sole option and expense, to:
- modify the ((allegedly) infringing part of the) Platform so that it becomes non-infringing while preserving materially equivalent functionalities;
- obtain for the Subscribers a license to continue using the Platform in accordance with the Terms and Conditions; or
- 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.
Indemnification by NxtPort
NxtPort hereby agree to indemnify and hold harmless Subscriber 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:
- Any breach or violation by NxtPort of the Data Sharing Rules;
- Any breach by NxtPort of its warranties pursuant to Art. 14; and
- Fraud, intentional misconduct, or gross negligence committed by NxtPort.
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, claims by any third Party with respect to:
- any breach or violation by Subscribers of any provisions of the Terms and Conditions;
- any Data or Apps violating any IPR of a third p arty;
- any breach by Subscriber of its warranties pursuant to Art. 14 and
- caused by fraud, intentional misconduct, or gross negligence committed by Subscribers.
Term and termination
The Account may be terminated by the Subscriber at any time upon written notification to NxtPort, without any justification.
Unless terminated by NxtPort or a Subscriber, the Account is provided for an indefinite term. The Subscriber may terminate its Account through the Platform or by providing written notice to NxtPort. NxtPort may terminate the Account for convenience by giving a notice period of three (3) months.
Termination for breach
NxtPort may terminate with immediate effect the Subscriber’s right to access and use of the Platform
- if NxtPort 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
- if such Subscriber remains suspended for non-payment for more than 60 (sixty) days.
Effects of termination
Upon the termination of the Account for any reason whatsoever in accordance with the provisions of the Terms and Conditions, at the moment of effective termination:
- the Subscribers will no longer be authorized to access or use the Platform;
- NxtPort may delete all Data associated with Subscriber’s Account, including but not limited to the Data, on the Platform; and
- 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 17.2.
A Party 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 8, 9, 13, 14, 15 and 17 (where applicable) shall survive any termination or expiration of these General Terms and Conditions.
Governing law and jurisdiction.
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.
If an update affects a Subscriber’s use of the Services or legal rights as a User of the Platform, NxtPort will notify such Subscriber(s) prior to the update’s effective date by sending an email to the email address associated with the Account or via an in-product notification. These updated Terms and Conditions will be effective no less than 15 days from the notification.
If a Subscriber does not agree to the updates made, the Subscriber may cancel its Account before the new Terms and Conditions become effective. By continuing to use or access the Platform after the updates come into effect, the Subscriber agrees to be bound by the revised Terms and Conditions.
Fair Use Policy
We may apply our Fair Use Policy where, in our reasonable opinion, your usage of our Platform is excessive and/or unreasonable as detailed below:
- If your usage of our Platform materially exceeds the range of estimated use patterns or is likely to damage or negatively impact the operation of our network, we will consider your usage to be excessive and/or unreasonable. We may contact you to advise you that your usage is in breach of our Fair Use Policy, and request that you stop or alter your usage to come within our Fair Use Policy.
- If your excessive or unreasonable usage continues after receipt of a request to stop or alter the nature of such usage, we may without further notice restrict, suspend, or cancel your Subscription.
- We may take service protection measures to throttle use of or disable services whilst abnormal or excessive usage patterns are investigated.
Annex 1: NxtPort Data Processor Agreement
This Data Processing Agreement (the “Agreement”) is entered into by and between the Subscriber (as defined in the NxtPort General Terms and Conditions) and NxtPort International BV, registered with the Crossroads Bank of Enterprises under company and VAT number BE 0761.774.157 and having its registered office at Sint-Pietersvliet 7, 2000 Antwerp (“NxtPort”) and supplements the NxtPort General Terms and Conditions (the “Platform Agreement”).
This Data Processing Agreement describes the treatment of Personal Data that is Processed by NxtPort on behalf of the Subscriber.
Pursuant to the Platform Agreement, NxtPort provides the NxtPort platform (the “Platform”) to the Subscriber. In the provision of the Platform, Personal Data is collected and processed by NxtPort on behalf of the Subscriber.
The Parties seek to implement a data processing agreement that complies with the requirements of the governing Data Protection Law, including the GDPR.
Following terms and expressions are to be defined as follows:
“Controller“ means controller as defined in article 4(7) of the GDPR. “Data Protection Law” means the GDPR and all other local legislations within the European Economic Area that might be applicable on the Processing of Personal Data. “Data Subject” means any identified or identifiable natural person; “GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). “Personal Data” means any information relating to an identified or identifiable natural person. “Processing” or related conjugation of the verb “Process” means any operation or set of operations which is performed on Subscriber Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. “Processor” means processor as defined in article 4(8) of the GDPR. “Subscriber” means the Data Provider, Data User and App Developer who shall make use of the Platform and to which this Agreement shall be applicable; “Subscriber Data” means all data in any form Processed by NxtPort on behalf of the Subscriber for the purposes of delivering the Platform, including, to the extent applicable, Personal Data. “User” means a registered user of the Platform that qualifies as one or more of following: Data Provider, Data User or App Developer.
All terms and expressions as used in this Agreement and which have not been expressly defined herein, will have the same meaning as they have in the Platform Agreement.
NXTPORT AS DATA PROCESSOR
- NxtPort only acts as Processor and will never become the Controller with respect to the Subscriber Data within the framework of the provision of the Platform. In this respect, the Subscriber is and will remain at all times the Controller with respect to the Subscriber Data.
- NxtPort commits to processing the Subscriber Data on behalf of the Subscriber and in accordance with the provisions of the Agreement, which constitute the documented instructions from the Subscriber. Parties agree that additional instructions from the Subscriber are to be attached to this Agreement in order to be valid between Parties.
- NxtPort shall inform Subscriber if, in its opinion, Subscriber’s instruction infringes the GDPR or other Data Protection Law.
- DATA PROCESSING
- While using the Platform, Subscriber may provide certain sets of Personal Data or Personal Data to NxtPort for Processing the extent of which is determined and controlled by the Subscriber in its sole discretion, and other Personal Data such as email data, system usage data, and other electronic data submitted, stored, sent or received by Suscriber or the Subscriber’s end users, via the Platform. NxtPort will only Process Subscriber Data during the term of the Platform Agreement or alternative duration to be agreed upon, with as the case may be early termination and will in no event keep Subscriber Data longer than required for the purposes for which they are Processed. Unless legally required otherwise, NxtPort will delete or anonymize all Subscriber Data, and will delete existing copies of such Personal Data, at the moment of the termination or expiration of the Platform Agreement.
- The subject-matter of Processing of Personal Data by Nxt Port is the provision of the services to the Subscrriber that involves the Processing of Personal Data. Personal Data will be subject to those Processing activities as may be specified in the Platform Agreement. Personal Data will be Processed for purposes of providing the services set out, as further instructed by Subscriber in its use of the Platform, and otherwise agreed to in the Platform Agreement.
- Each Party represents and warrants that it has or will have by May 25, 2018, implemented appropriate technical, organizational and security measures in such a manner that it will meet the requirements of the GDPR and ensure the protection of the rights of the Data Subject.
- The Subscriber Data may relate to Data Subjects that are employees, agents, contractors, partners, suppliers or customers of the Subscriber or of the Subscriber’s customers as provided to NxtPort by the Subscriber. The Personal Data may contain following elements: email addresses, addresses, telephone numbers, jobs, picture, Alfapass ID number, vehicle license plate,
- The Subscriber will ensure that the Subscriber Data can be lawfully Processed in accordance with Data Protection Law and in particular that the Data Subjects have been duly informed on the circumstances under which their Personal Data is Processed. The Subscriber will take into account instructions of NxtPort as described in the Platform Agreement in this respect.
- Subscriber Data may be transferred to countries outside the European Economic Area provided that such transfer is done in line with applicable Data Protection Law. NxtPort will inform the Subscriber of any intended changes concerning any changes in terms of countries to which Subscriber Data is being transferred or the measures taken to ensure compliance with transfer rules under applicable Data Protection Law. At that time, the Subscriber will be allowed to object to such changes.
- NxtPort guarantees that any person acting under their authority and having access to the Subscriber Data, only Processes this Subscriber Data in accordance with the provisions of this Agreement and have in particular committed themselves to confidentiality.
- NxtPort may engage sub-processors with respect to the Processing of the Subscriber Data. These sub-processors will be held to the same contractual obligations as set out in this Agreement. Where the sub-processor fails to fulfil its data protection obligations, NxtPort will remain fully liable towards the Subscriber for the performance of that sub-processor’s obligations.
- NxtPort will inform the Subscriber of any intended changes concerning the addition or replacement of these sub-processors. At that time, the Subscriber will be allowed to object to such changes.
TECHNICAL AND ORGANISATION MEASURES
- NxtPort will implement appropriate technical and organizational measures to ensure that Processing is performed in accordance with Data Protection Law, as well as to ensure an appropriate level of security of the Subscriber Data, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons. This constitutes an obligation for NxtPort to use its best endeavors.
- NxtPort will document all information necessary in order to demonstrate the abovementioned compliance (including records of processing activities) and NxtPort will make this documentation available to Subscriber upon its request.
INFORMATION OBLIGATIONS AND ASSISTANCE
- If NxtPort is required to Process Subscriber Data by Union or Member State law to which it is subject, NxtPort will inform the Controller of that requirement, unless that law prohibits such information.
- Where necessary and upon request, NxtPort will assist the Subscriber with the execution of a data protection impact assessment and possible prior consultation with competent supervisory authorities with respect to the Processing in accordance with this Agreement.
- The Parties will assist each other, upon specific request and to the extent possible, with the response to requests from Data Subjects exercising their rights under Data Protection Law. Taking into account the nature of the processing, NxtPort will assist Subscriber by appropriate technical and organizational measures for the fulfilment of Subscriber’s obligation to respond to requests for exercising the data subject’s rights.
- As the case may be, the “right to be forgotten” might imply actions from NxtPort, namely removing from its system, records or databases and deleting, within a 30-days period, any Personal Data of the Data Subject requesting such a right. Upon prior discussion with Subscriber, a best practice could be to remove and erase Personal Data from Data Subject known by NxtPort as no longer using the tool, device, services or applications.
- The Data Processor will assist Subscriber in ensuring compliance with the obligations related to the security of Data and of processing, taking into account the nature of the processing and the information available to NxtPort.
- The Parties will inform each other without undue delay after becoming aware of a personal data breach. Furthermore, the Parties will propose and take measures to address the data breach and mitigate its possible adverse effects. If required by Data Protection Law, the Subscriber will notify the data breach to the supervisory authority and the affected Data Subjects. NxtPort will assist the Subscriber in this respect if this is deemed necessary by the latter.
- The Data Processor shall make available to Subscriber all information necessary and to the extent as requested by law to demonstrate compliance with the obligations laid down in this Agreement and allow for and contribute to audits, including inspections, conducted by Subscriber or an external auditor mandated by Subscriber. Subscriber will limit his initiatives to perform an audit or an inspection to a maximum of 1 in a year, except when it is legally imposed or in case of a mutual agreement.
- LIMITATIONS OF LIABILITY
- Nothing in this Agreement shall limit or exclude any liability, rights or remedies provided by law.
- Unless agreed upon otherwise in writing by and between the Parties, NxtPort’s liability hereunder shall be limited to the compensation for any damages incurred by Subscriber, caused by NxtPort’s gross negligence and intent. Furthermore, Subscriber shall in no event hold NxtPort liable for any indirect, incidental, and consequential damages incurred by Subscriber or for profits lost by the latter.