NEXAT IP CONNECTIVITY SERVICES VIA SATELLITE
- Services : IP (Internet Protocol) connectivity access services via satellite defined by a variable set of technical features such as maximum data transfer rate (MIR), minimum guaranteed rate (CIR ), compression, congestion factor, volume allocation, residual velocity when exceeding the volume allocation and the appropriate value-added services.
- CMT : Customer Management Tool, a software tool developed by neXat and made available as a free web portal to the Customer for Customer’s own customer management and allowing also placing certain Orders for Services.
- Client : the legal entity to whom neXat sells Services and/or Products and that manages a fleet of Terminals
Autorised Partner: a Client may be eligible and considered “Authorized Partner” under certain conditions which are described in an ad hoc contract.
- Terminal : combination of a satellite IP modem, satellite dish, cables, connectors, amplifiers/receivers, etc which are declared to be eligible and compatible by neXat ie all the equipment necessary for receiving and sending data and for decoding satellite signals and for IP access via satellite (excluding any computers and other IT or telecommunications equipment from the Client).
- Activation : enrolment of a Terminal on the network managed by neXat and configuration of the contractual service profile and possibly value-added services where applicable.
- Downgrade : change of the contractual service profile to a lower service profile, action that can be performed in real time in the CMT by the Client.
- Upgrade : change of the contractual service profile to a higher service profile, action that can be performed in the CMT in real time by the Client.
- FUP reset : “Fair Use Policy” reset i e to resetting of the contractual quota of monthly volume for the services concerned to zero, that can be performed in the CMT in real time by the Client
- Voucher : additional volume quota (recharge) which can be purchased by the Client from neXat under the condition of prepayment, for those services that are based on the volume use of data.
- SLA : Service Level Agreement corresponding with neXat's undertakings on the characteristics of the service such as guaranteed annual availability, maximum bandwidth MIR, Maximum Information Rate), minimum bandwidth CIR, Committed Information Rate), allocation of monthly volume and residual bandwidth in case of exceeding the limits for the services concerned.
- GC&TS : these General Conditions and Terms of Sale.
- Products : a set of tangible “hardware” equipment which is part of a Terminal, as ordered by the Client from neXat and provided by the latter to the Customer.
- Order : any document, signed or unsigned by hand, in written and/or in electronic form (e g submission of a firm order in the CMT; through a purchase order; e-mail; facsimile, etc.) through which the Customer expresses and confirms unequivocally and irrevocably its legal consent to acquire certain Products and/or Services, this as result from and pursuant to the prior Offer issued by neXat.
- Offer : the whole set of information and/or documents s in written and/or electronic form and constituting an documented quotation to meet the Customer’s needs, made available and/or sent by neXat by postal mail, facsimile, e-mail and/or through its CMT web portal, and containing a specific presentation of the relevant Product(s) and/or Service(s), a reference to the applicable contractual and commercial terms, and its (their) price, enabling the Customer to assess them and place a corresponding Order thereafter.
Authorised Partner Contract: Ad hoc contract signed between neXat and a Customer that is eligible as Authorised Partner defining the relationship between neXat and this Client/ Authorised Partner.
2. GENERAL INFORMATION
This document defines the general terms and conditions of sales applicable to the supply of Products and /or Services by neXat S.A., a limited liability company incorporated under Belgian law having its registered office at rue Royale 182, b. 23, B-1000 Brussels [VAT BE 0838,335 .564], (hereinafter referred to as “neXat”), and the terms and conditions for accepting such Products and/or Services.
2.1 MATERIAL SCOPE
2.1.1 These general terms and conditions specify the contractual conditions under which (i) the Customer will purchase (or, when expressly specified and authorized as such by neXat: will rent or hold in voluntary deposit) the Products and/or Services; and (ii) neXat will provide Products and/or Services to the Customer in the absence of any other provision that would prevail over these General Terms and Conditions as defined here below.
2.1.2 By its Order, the Customer explicitly acknowledges having been informed of the existence of the present document “GT&CS” as well as the Service Descriptions and the applicable tariff, as well as that it has read and approved them. Once the corresponding Order of the Customer is accepted by neXat, a contractual relationship governed by the present document automatically comes into existence between neXat and the Customer who entirely waives and renounces to invoke all of its own general and/or specific purchasing terms and conditions, even if it would be stated in the latter that they would prevail.
2.1.3 In case of conflict or inconsistency between the contractual documents, the following order with decreasing legal priority will apply:
- the Offer developed by neXat in response to a specific request of the Customer, and as accepted by the Client by his Order.
- the Authorised Partner Contract, including as the case may be any special conditions applicable to the Client;
- the Service Descriptions with their Specific Service Conditions and the “Service Level Agreements”(SLA) and the corresponding tariffs, available on request.
- the present General Terms and Conditions of Sale (“GT&CS”);
This set of contractual documents all together constitutes the “Contract”.
Any other oral or written exchanges between the parties, including preparatory discussions, will be excluded from the material scope of the Contract, except in respect of any commitment that neXat has confirmed in writing and with a signature from one of its authorized directors.
Without prejudice to clause 2.2.13, the Client has the right to resell the Products and/or Services offered by neXat to its own customers. In this case, his customers will be identically bound by the Service Descriptions applicable to the resold Services and/or Products and the Customer will remain as the principal and sole co-contractor of neXat, jointly and severally liable vis-à-vis neXat for the performance of all commitments, guarantees and obligations vis-à-vis or by its own customers.
2.1.3 neXat reserves the right to claim from the Customer or the parent company that controls the latter, the issuance of a direct bank guarantee in favor of neXat in order to secure proper performance of the Contract by the Client and/or by the affiliated entities of its parent company.
2.1.4 The Client acts as a party independent from neXat by virtue of the present GT&CS and not as the legal representative of neXat for any purpose whatsoever. By no means can the present GT&CS be interpreted as i) giving powers to one of the parties to direct or control the daily operations of the other party, or ii) establishing a relationship between the parties qualifying them as principal and agent, employer and employee, franchisor and franchisee, licensor and licensee, associates, co-participants, co-owners, co-rentors or otherwise as participants in a joint operation.
2.1.5 The Customer has no right or authority to assume or create any obligation, express or implied, except as expressly agreed to in the Contract, in the name and/or on behalf of neXat towards any particular third party (including the customers of the Client) and/or to waive any right, interest or claim that neXat might have or assert against any particular third person (including the Customer’s clients).
2.2 START, DURATION AND END OF CONTRACT
2.2.1 Unless otherwise agreed, the Contract will come into existence simply on the basis of the receipt and acceptance of the Customer’s Order by neXat.
2.2.2 Unless otherwise stated in the Description(s) of the Contractual Service(s) or in the corresponding Order(s), the duration of performance of the Contract will have an initial term of one (1) year (the “Initial Period”).
2.2.3 The Initial Period starts to run as from the first day of putting the Products at the disposal of the Customer and/or of activation of the Services for the Customer (the “Initial Date”).
2.2.4 On expiry of the Initial Period and unless otherwise stipulated in the Offer, the Contract will as of right tacitly be renewed by successive periods of one year. If a Party wishes to terminate the Contract, it must inform the other Party in writing observing a notice period of at least three (3) months before the last date of the then current contractual term.
2.2.5 A Party may suspend performance of its obligations in case of non-performance by the other Party of its contractual obligations, which is not remedied within fifteen (15) calendar days after sending a notice of default. The suspension ends once the other Party has complied with its obligations.
2.2.6 Each Party may at any time resolve the Contract unilaterally with immediate effect and without judicial intervention, by sending a written notice to the other Party, provided that the latter seriously violates any of its obligations under the terms of the Contract and to the extent that it fails to remedy within thirty (30) days as from the notice of default referred to in the previous clause, provided that a remediation is still reasonably possible.
2.2.7 To the extent permitted by law, the Contract shall automatically terminate when one of the Parties ceases its business activities, becomes insolvent or bankrupt, is dissolved or undergoes a similar procedure.
2.2.8 Upon early termination of the Contract by the Client for its own convenience, the Client will pay all amounts due for the remainder of the Initial Term or the then current running contractual term, without prejudice to any restitution to neXat of any rebate granted by neXat (e g in function on the anticipated contractual duration) and from which the Client would have unduly benefited.
2.2.9 In case of termination of the Contract due to non-respect by the Customer of its obligations, the amounts referred to in clause 2.2.8 apply and may be increased by administrative costs and compensation for any loss, damage, all costs or expenses incurred by neXat as result of the fault/negligence of the Customer or its employees, agents or its customers, including but not limited to reasonable attorneys’ fees and court costs.
2.2.10 If neXat decides generally for its customer basis to cease delivery of a particular Product and/or the provision of a particular Service, it will notify the Customer in writing at least three (3) months in advance. This notification shall contain, at a minimum, the complete reference of the Product and/or Service concerned, as the case may be the alternate Product and/or Service offered in substitution and the last date on which Customer may order the Product and/or Service concerned by the ceasing. In the event that a substitution is possible, neXat will propose the Customer a replacement Product and/or Service on comparable terms until the end of the then running contractual term and will not be liable for any compensation to the Customer.
2.2.11 neXat reserves at any time its right to change the present General Terms and Conditions of Sale, the Specific Conditions of the Service and the technical characteristics of Products and/or Services (such as described in the SLA), even when this change has an impact on the prices or on the quality of service. neXat undertakes to inform the Customer at least one (1) month before their entry into force and by any means it deems appropriate. The publication of a notice on the website of neXat and/or a mention on the invoice, are deemed to be appropriate methods.
2.2.12 The nullity or lack of enforceability of a given provision or clause of these General Terms and Conditions of Sale will neither result in the invalidity or lack of enforceability of any other provision of these GT&CS nor of these GT&CS in their entirety. The clause or the sentence affected by a nullity will be replaced by mutual agreement by a clause that best reflects the spirit of the Parties at signature date of the Contract.
2.2.13 The Customer may not generally or partially assign or transfer its rights and/or obligations under the Contract (including the present GT&CS) to a third person or entity without having obtained the prior written consent from neXat.
3. RIGHTS AND OBLIGATIONS OF THE CUSTOMER
3.1 The IP connectivity Service offered by neXat is a prepaid service and the Customer undertakes to abide by the detailed billing procedures below and to pay within the given deadlines all the invoices for its active Terminals in accordance with clause 7.
The price for the Services’ profiles payable by the Customer to neXat will be determined on the basis of neXat's price list communicated by neXat to the Customer for each calendar year.
3.2 The Customer will provide all necessary cooperation to neXat in order to ensure the proper execution of the obligations of neXat, amongst other including:
- files, documents or any other relevant information for the provision of the Product or Service;
network access to ICT infrastructure for a remotely controlled intervention by neXat if this deems to be necessary;
- physical access to sites and technical facilities in case neXat needs carry out on the spot interventions in the (permanent) presence a representative of the Client;
- permission granted to neXat to carry out any work, by all means necessary or useful in order to prepare and abide by its obligations under the Contract, without needing to consult with the Customer on beforehand;
- appointing a contact person or a limited number of contact persons for technical, administrative and other matters relating to the Products and/or Services under the Contract.
The Customer acknowledges and agrees that any shortcoming on its part with respect to its collaboration, information or duty to grant adequate access to neXat for the supply of Products and/or Services may materially affect such supply. Therefore, neXat disclaims any responsibility for late delivery of or for damage to the Products and/or Services to the extent that such delay or damaging event is caused by the Customer or by a third party.
3.3 The Customer undertakes to preserve the secret and confidential nature of any identification code (password, username, etc.) that would be handed over to him. Any use of these identifying elements will take place under the sole responsibility of the Customer. In case of loss, theft or fraudulent use of one of these elements, the Customer must warn neXat immediately and confirm such communication by registered letter.
3.4 The Client agrees to comply with all laws, rules and regulations applicable in the country(ies) in which it uses, offers, resells or lets use the IP connectivity Service via satellite provided by neXat while respecting the terms of the Contract. The Client is, among others, must obtain any local licenses, permits, and/or other exemptions or consents that may be required for the resale or provision of IP connectivity service via satellite acquired from neXat and for the provision (possibly with value added) of its own equipment and/or services related thereto by the Customer to any end-users which the Client has authorized and/or contracted with. The Customer warrants and shall indemnify neXat against any claims, penalties or other financial consequence regarding any violations or infringements covered by this clause.
3.5 The Customer undertakes to activate, operate and maintain the satellite Terminals purchased from neXat (or, where appropriate, when expressly specified and authorized by neXat as such: put at its disposal by neXat under a rental or voluntary deposit arrangement) solely and exclusively on the network of neXat. Any request for de commissioning and/or transfer of a Terminal with the aim to its reutilisation outside neXat's network must be approved in advance by neXat and such approval will as the case may be, be conditioned by the immediate and full settlement of its outstanding amounts and/or debts vis-à-vis neXat on the basis of the Contract.
The right of ownership into the Products purchased by the Customer from neXat will transfer only at the time of full payment of the invoice(s) relating thereto. All risks related to the Products and their international transport performed by a carrier chosen by neXat, will be transferred upon the first moment of their arrival in the customs area of the international airport or seaport chosen by neXat and located in the country of the Customer, this under the INCO term called “CIP, Carriage and Insurance Paid To (name of international airport or seaport (specifically in the customs area)”). Upon its reception in such place the Customer is deemed to have accepted that the Products have been delivered in conformity with its Order and without visible defects.
4. RIGHTS AND OBLIGATIONS OF NEXAT
4.1 neXat is responsible for the supply of the Products and/or Services which are defined in the Contract, in accordance with the corresponding Contractual Service Descriptions and the conditions agreed in any possible Authorised Partner Contract.
4.2 Maintenance or development of the Service may lead neXat to temporarily limit or suspend the Service. In this case, neXat (1) uses the maximum allowed time windows of planned maintenance and (2) limits such period of restriction or suspension to the time required for any applicable interventions.
4.3 neXat will use the information provided by the Customer in good faith and for the sole purpose of its performance under the present Contract.
4.4 neXat endeavours to take reasonable steps to provide the Service and to perform its obligations while applying professional standards and practices of skill which are commonly accepted within the satellite telecommunications industry. Unless expressly stated otherwise in the Contract (such as minimum speed guarantee (CIR) for the Customer in its SLA), neXat's obligations as described in the Contract must be classified as obligations of means.
4.5 neXat reserves the right to take, on its own initiative, all measures that become necessary when the integrity of its Services or the smooth operation of its network or its infrastructure may be compromised. These measures could consist of the activation of protective measures of, or in exceptional cases, the suspension of access by the Customer to its Service.
5. COMPLIANCE WITH LAWS FOR CONTENT
5.1 neXat is by no means responsible for any content downloaded (downstream or upstream), transmitted, hosted or otherwise created, received or requested by an end user via the IP connectivity service satellite offered by neXat, who only acts as a mere supplier of a data transmission means through the Internet Protocol departing from and arriving to the Terminal of the Client.
5.2 In case neXat takes actual knowledge of any illegal or unauthorized activities (such as for instance use for criminal, military, terrorist, corruption purposes, etc.) and/or of illegally transmitted content (such as content contrary to public decency: exploitation of minors, child abuse, violence or sexual obscenity, incitement to racism or xenophobia, etc.), neXat reserves the right at its own discretion and/or following the request of any competent authority to cease providing access to such content or providing its Services, in part or in its entirety, to the Client and/or some of its customers.
6. ANTI-CORRUPTION UNDERTAKINGS
The Client warrants to neXat that it is compliant and will comply with any anti-corruption laws applicable in his country, the US Foreign Corrupt Practices Act and the UK Bribery Act 2010, as each may be amended from time to time (collectively, the Anti-Corruption Laws). “Corruption” or “corrupt practice(s)”, shall include bribery, extortion or solicitation, trading in influence and laundering the proceeds of these practices.
In addition, the Client warrants that it (or any of its affiliates or officers) has not and will not pay, offer or promise to pay, or authorise, solicit or accept the payment directly or indirectly of any undue monies, or anything of pecuniary value of any kind (or implied that it will or might do any such thing at any time in the future) to any government official or employee, or any political party or candidate for political office for the purposes of influencing any act or decision of such official or of the government in any way connected with the Contract.
By way of clarification, a government official or employee includes employees of regulatory bodies, employees or officials of public international organizations, employees of partially or wholly government-owned institutions such as hospitals and clinics, universities, public utilities, partially or wholly government-owned corporations, schools, convention centres and stadiums.
The Client hereby represents and warrants that no payments or transfers of anything of value shall be made which have the purpose or effect of unlawful public or commercial or acceptance of or acquiesce in extortion, kickbacks, or other unlawful or improper means of obtaining business.
The Client shall procure that this clause shall be complied with by its local subcontractors, agents or other third parties, subject to its control or determining influence.
7. BILLING PROCEDURES AND PAYMENT MODALITIES
7.1 Tariffs of Products and Services are indicated in our tariffs list or, as the case may be, in the Authorised Partner Contract that the eligible Client acknowledges to have received before placing his Order in accordance with clause 2.1.2. The tariffs are indicated in Euros or US dollars and do not include value added tax (VAT), potential export duties, shipping and transportation costs and other taxes, customs duties or charges relating to customs clearance, excise duty, import duties, and fees, etc. passed on to and/or due by the Customer.
7.2 Customers are billed in advance for monthly subscriptions pertaining to all of their active Terminals.
7.3 All Terminals which are activated for the first time during the month preceding the date of invoice are charged in proportion to the corresponding period in addition to the subscription for the then current period. Solely the Customer is responsible for ensuring that its clients renew their subscriptions after the date of expiry or in the event of non-payment, for proceeding to the immediate suspension of the Terminal concerned.
7.4 The Customer is responsible for managing its own accounts vis-à-vis its own resellers, agents, installers and end clients and for collecting the money for all granted subscriptions before the end of the current month.
7.5 Billing date: monthly bills are invoiced, and simultaneously sent to the Client by email in a non-editable electronic format (message containing a PDF-file) on the first day of each month. The Customer consents to this sole legal method of invoicing and renounces expressly to claim any paper invoices to be sent by postal mail.
7.6 Corrections: any errors or changes requests must be reported within maximum 2 working days after receipt of the invoice. In case of error on the part of neXat, the error will be corrected and a new bill shall be issued that cancels and supersedes the previous one. If any changes at the Customer’s request are coming in beyond the aforementioned period of two days, they will, if accepted by neXat, only be reflected in the next invoice of the following month, it being understood that the previous invoice will remain valid and payable.
7.7 Payment due date: the invoice is to be paid no later than within 2 working days after its reception by email. A “working day” means as a full 24-hour day from Monday to Friday, except festive days officially recognized for the entire territory of the country where the corporate seat of the Customer is located. Only the archived file of emails sent by neXat to the Customer will serve as legal proof of the technical success and of the precise time of their dispatch to the Customer and their receipt by the Customer will be deemed to have taken place on the same day of their dispatch.
7.8 All due and payable debts reflected in a/the invoice(s) which have come to its (their) due payment date are to transferred to and payable at the registered office’s address of neXat. neXat is aware that a money transfer between Africa and Europe via the banking system could take a few days, reason why neXat will request the Customer to send him a copy of the proof of the effectuated payment (SWIFT) by email before the 5th business day following the issue date of the invoice. The Customer must always mention the number of the corresponding invoice in each bank transaction.
7.9 Any Order of Products (material or equipment relating to Terminals) must be paid to neXat BEFORE its shipment to and its delivery to the Client. To this end the Client may request a prior pro forma invoice which will be transformed into a final invoice upon receipt of the corresponding payment on the bank account of neXat.
7.10 DEFAULTING TO PAYMENT OBLIGATION
7.10.1 In case of default to timely abide by the due payment date, neXat reserves the right to suspend the Service(s) offered to the Customer without prior notice as well as to transfer temporarily or permanently the Client’s customers if they wish so and/or with their consent to other partners of neXat, this without the latter party being liable for any indemnification or other compensation vis-à-vis the Client.
7.10.2 In case neXat should suspend the Service(s) offered to the Client because of failure to meet the due payment date, neXat can in no way be held liable for any damages or interests whatsoever on the part of the Client and/or vis-à-vis of its own customers.
7.10.3 In case of default to timely abide by the due payment date as provided in clause 7.7, the Customer will be automatically and without prior notice of default liable to pay interest on arrears calculated at the rate of 1.5% per month of delay. neXat also reserves the right to claim from the Customer additional compensation of damages for its administrative expenses and debt recovery costs at the rate of 15% of each invoice amount with a minimum of 50 euros.
7.10.4 The invoice amounts are payable net, in their entirety, without discount and at the corporate seat of neXat or on one of its bank accounts mentioned in clause 7.16. Any invoice not paid in full on its due payment date will be considered unpaid and clause 7.10.3 will apply to the total amount of the invoice not paid in full.
7.10.5 Chronological clearance of invoices : to reduce the default interest, each payment received from the Customer will always be chronologically assigned to the oldest open invoices in the accounting books of neXat, starting with any possible accrued interest on arrears and additional compensation for damages and thereafter followed by the settlement of the net invoice amount. The Customer shall in no case be allowed to reduce payments of due and undisputed invoices by using any right to compensation (contractual or other) with any potential assets or sums as alleged and/or claimed from neXat, even if these would become claimable on the basis of the present Contract.
7.10.6 neXat will accept no new Orders for Products as long as any invoices relating Services and/or Products are in arrears of payment.
7.11 DISPUTED INVOICES
7.11.1 Any dispute regarding an invoice must, on pain of forfeiture, reach neXat within 2 working days of the invoice issue date. After this period the invoice shall be deemed to have been irrevocably accepted by the Client.
7.11.2 The undisputed portion shall be deemed accepted and must be paid within the normal payment time windows.
7.11.3 In case of rejection of the Client’s protest by neXat, the disputed sum becomes immediately due and payable.
7.12 UTILISATION OF CMT
7.13 The Customer itself formally undertakes to block via the management system of its clients (“Customer Management Tool” or CMT) each Terminal to whom it has decided no longer to offer the service (e g in case of non-payment of the invoice of its customer), otherwise the Customer will continue to be billed by neXat for this provision of the service. If the Customer does not have access to CMT, the latter is obliged to send a written request to neXat in order to proceed to the temporary suspension or permanent disconnection of the Terminal of such client.
7.14 The Customer also expressly agrees to fully assume the financial consequences of each action undertaken through its access to the CMT (activation, suspension, up or downgrade, FUP Reset, etc.) and that will be reflected on the next invoice.
7. 15 Vouchers: in the specific case of Services based on purchasing units of volumes and/or duration (“vouchers”), these vouchers must be purchased in advance by the Customer via the CMT. These vouchers will be activated by neXat as soon as the corresponding payment has been duly received by neXat.
7.16 Bank details: payments must be made on one of the two bank accounts neXat SA or via credit card directly via the CMT. Payments can only be made in Dollars ($) or Euros (€) (excluding any other currency) in light of and in accordance with the currency mentioned in the tariffs list received by the Client as part of the Contract, and this at exchange rates of the applicable market at the due payment date of the invoice.
Account 1 : ING
- Bergensesteenweg 850 – 1190 Brussels – Belgium
- IBAN (account number): BE63 3630 9136 1108
- BIC (Bank code): BBRUBEBB
Account 2 : Belfius Bank
- Boondaalsesteenweg 456 – 1050 Brussels – Belgium
- IBAN (account number): BE50 0688 9585 2318
- BIC (Bank code): GKCCBEBB
7.17 Charges : All charges related to international payments of the net sum of the invoice (e g currency exchange commissions) will be borne by the Customer. neXat adds € 15 per invoice for bank charges to cover part of the administrative costs of the transfer.
7.18 Any use of other payment channels or methods (e g through other money remittance companies) which are not accepted in advance and in writing by neXat is expressly excluded.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 The Customer acknowledges the exclusive rights of neXat and its suppliers, including its ownership and its legitimate interest in relation to trademarks, software (such as the CMT), databases and any other intellectual property right, trade secret or know how in relation to which neXat at any given moment qualifies as the owner, right holder, beneficiary under license from its own suppliers, or which it uses relating to the Products and Services. The Customer shall not acquire any ownership rights to that end.
8.2 The Customer has the right to use the trademarks of neXat provided that this use i) is limited to the one described in this Contract, and ii) is limited to marketing and (re)sale of services based on Products and/or Services provided by neXat. The Customer also agrees, during the term of this Contract or at any other time after its termination, not to register or use any similar word, symbol or design leading to confusion with the intellectual rights of which neXat is holder or beneficiary.
8.3 The Customer shall inform neXat without delay of any actual violation or potential violation made or that may be made with respect to the intellectual property rights by itself, its customers, their end users or third parties. The Customer shall assist neXat in any matter concerning the protection of intellectual rights.
For the duration of this Contract or after its termination, the parties will not disclose, directly or indirectly, to any third party (including the Customer’s clients and their end users) the content of this Contract or any information or know how of which they have knowledge or they learn under this Contract or as a result of the present
Contract, or will not allow that such information falls into the public domain unless they are legally obliged to disclose it.
The Customer shall take all necessary and appropriate measures to ensure that this confidentiality obligation is imposed and respected by its employees, agents and/or advisors.
10. PROTECTION OF PERSONAL DATA
Pursuant to the European General Regulation on Data Protection (2016/679) a new Clause entitled “Protection of personal data” is added with effect from 25 May 2018 to each Contract in force between neXat and the Customer. Unless agreed otherwise in writing between the Parties with respect to the compliance of the Contract with the GDPR, this Clause supersedes any other Clause of the Contract relating to privacy and the protection of personal data from that date onwards.
10.1. GENERAL PROVISIONS
10.1.1. The concepts in connection with protection of personal data used in this Clause 1 have the meaning granted to them under the Legislation on data protection.
10.1.2. The Customer agrees to comply with: (i) national laws implementing the Data Protection Directive (95/46/EC) until 24 May 2018, as well as (ii) the General Regulation on Data Protection (2016/679) as from 25 May 2018, and (iii) the national laws implementing the Privacy and Electronic communications Directive (the legislation referred to in (i), (ii) and (iii) here above together being referred to as the “Legislation on data protection”).
10.1.3. neXat will abide by the Legislation on data protection for all processing of information relating to a physical person identified or identifiable in the course of the performance of the Contract (referred to as “personal data” under the Legislation on data protection).
10.1.4. The role of neXat (data controller or data processor) regarding personal data processed in the framework of the performance of the Contract is specified either in the Order or in a signed Pro Forma, or in the applicable contractual Service Description, except for personal data which are mentioned in Clause 10.2 for which neXat acts as the data controller.
10.2. neXat ACTING AS DATA CONTROLLER
neXat processes personal data relating to its Customers (and possibly their co-users and end- users), such as identification data, contact data, usage data relating to Products and Services provided by neXat, communications traffic data of the Customer, billing and payment data as well as technical data. In doing so neXat acts as the data controller. The data can be processed for the following purposes:
- performance of the Contract executed with the Customer and the provision of Services as requested by the latter;
- administration and relationship management with the Customer;
- establishing client profiles as well as organizing information and promotional campaigns for products and services neXat unless the Customer objects thereto;
The data files held by neXat are accessible to third parties working in the name of neXat or on behalf of the latter.
In the cases provided by law neXat communicates the customer data to the competent public authorities when instructed to do so.
The Customer has a right of access, rectification and deletion for data which concern him.
For more information on the processing of personal data by neXat, the purposes of the processing, the categories of personal data concerned, the collection of the data, the retention period of personal data and the manner in which the Customer may exercise its rights and may communicate its preferences in terms of respect for privacy.
Data relating to Customers who have terminated their Contract with neXat can be used by neXat to inform them about the products and services of neXat, unless the Customer has objected thereto.
neXat hereby entrusts the performance of the following obligations of neXat arising from the Legislation on data protection to the Customer who accepts.
In particular the Customer:
- shall ensure that all personal data are accurate, complete and up-to-date;
- shall ensure that the data subjects to whom the personal data relate are duly informed in accordance with the Legislation on data protection, and that personal data concerning them may be subject to processing by neXat in accordance with this Contract. To this end, the Customer shall inform the concerned persons about neXat's Policy regarding Privacy Protection and more specifically about how they can exercise their rights regarding their personal data;
- shall provide at the request of neXat the evidence which corrobates that the data subjects have been duly informed in accordance with this Clause 10.2.
10.3. neXat ACTING AS DATA PROCESSOR
10.3.1. When the Customer (or its data controllers if the Customer does not act in such capacity) provides personal data to neXat in connection with its use of the Product/Service and requests neXat to process personal data for its own account (or for the account of his data controllers) for the sole purpose to provide him the Product/Service concerned, the Customer will act as data controller within the framework of processing of personal data and neXat as data processor in view of such personal data.
10.3.2. The Customer shall ensure that the rights and obligations of the Parties under this Clause 10.3 will duly apply to its data controllers whom the Customer authorizes to use the Product/Service. The Parties agree that the Customer is the sole interlocutor of neXat, either in its quality as a data controller or on behalf of its own data controllers. All references to the Customer’s rights and obligations under this Clause 10.3 shall to the extent applicable be deemed to include the respective data controllers of the Customer. The personal data provided by the Customer may relate to the following types of data subjects: its own clients, suppliers, directors, employees, workers, agents, representatives, consultants or other third parties. The personal data may include the following categories of data:
- identification information, contact data;
- preferences with respect to direct marketing;
- invoices and billing data;
- data relating to the usage of the Services/Products under this Contract;
- any other type of personal data as identified in the Contract.
Regarding the personal data, the Customer or its data controllers shall have the rights and obligations of a data controller as described in the Legislation on data protection.
10.3.3. neXat shall process or transfer the personal data in accordance with the instructions as documented by the Customer, unless neXat is obliged to process or transfer personal data otherwise under the law of the European Union or of one its Member States. As the case may be, neXat shall notify the Customer thereof in advance, unless prohibited by law due to important reasons of public interest. The Contract including this Clause, comprises the whole set of instructions of the Customer vis-à-vis neXat in this regard. Each additional or any diverging instruction will be subject to a written agreement between the Parties.
10.3.4. neXat shall process the personal data in a strictly confidential manner and shall ensure that any physical person acting under its authority and having access to the personal data (i) undertakes to abide by the confidentiality or is being subject to an appropriate legal confidentiality obligation and (ii) refrains from processing personal data, except on the Customer’s instruction, unless he/she is required to process or transfer the personal data otherwise pursuant to the laws of the European Union or of one its Member States.
10.3.5. Whether it is in relation to personal data received or held by neXat, neXat shall take appropriate technical and organizational measures as agreed in the Contract in order to ensure an appropriate level of security against the risks inherent to the processing (especially the risk of accidental or unlawful destruction, loss, alteration, disclosure, unauthorized use or access, and against each and any other unlawful form of processing), taking into account the state of the art, the costs of implementation and the nature of the personal data and of the potential risks.
10.3.6. If neXat detects a breach of personal data affecting the personal data in the context of the performance of the Contract, it shall inform the Customer as early as possible.
10.3.7. Hereby the Customer grants a general written authorization to neXat for hiring subcontractors for the processing of the personal data (i) to the extent necessary for the fulfilment of its contractual obligations arising under the Contract and (ii) provided that neXat remains accountable for any acts or omissions of its subcontractors in the same manner as for its own acts and omissions in connection with this Contract. As the case may be neXat shall inform the Customer of its intention to add or replace subcontractors, allowing the latter to oppose to such changes. If the Customer has a legitimate ground of objection with regard to the processing of personal data, neXat might not be able to continue to provide the Product/Service to the Customer and it will, as the case may be, be entitled to terminate this Contract. If neXat hires another subcontractor in accordance with this Clause, neXat will ensure that the obligations laid down in this Clause 10.3. are imposed on such other subcontractor through a written contract.
10.3.8. neXat will be authorized to transfer the personal data to a country located outside the European Economic Area that has not been recognized by the European Commission as providing an adequate level of data protection, provided that neXat (i) has provided appropriate safeguards in accordance with the Legislation on protection of data or (ii) can rely on a derogation in the Legislation on data protection authorizing such a transfer. The Customer shall punctually execute the corresponding documents and shall accomplish any acts which neXat may reasonably require for the implementation of such appropriate safeguards.
10.3.9. neXat has implemented and shall maintain appropriate technical and organizational measures in order to protect personal data. During the term of this Contract the Customer may request neXat to provide within a reasonable timeframe a current description of the technical and organizational protection measures which have been implemented.
10.3.10. neXat shall to the extent possible cooperate with the Customer and help it to fulfil the latter’s obligation to respond to those data subjects who request to exercise their rights.
10.3.11. At the end of the Contract neXat shall either delete the personal data (unless the law mandates subsequent storage of the personal data), or at the request of the Customer shall return them to the latter or shall authorize the latter to conduct their extraction.
10.3.12. If under this Clause 10.3, a Customer’s request requires neXat to take additional measures other than those directly imposed neXat by the Legislation on data protection, the Customer shall reimburse to neXat all costs incurred in order to implement such measures.
10.3.13. Violation of the Legislation on data protection by neXat will be considered a default of neXat only if it has acted outside the legitimate instructions of the Customer or contrary to them.
11. LIABILITY, GENERAL PRINCIPLES
11.1 neXat's responsibility can not be engaged in case of wilful misconduct or gross negligence on its part or by one of its employees (including its officers, employees, executing agents and/or consultants). In this case, its liability is limited to repairing only foreseeable, direct, personal and certain damages that the Customer has suffered from, excluding any compensation for any and all indirect or consequential damages such as additional expenses, shortfall of turnover, loss of profits, loss of goodwill, loss of or damage to data, loss of contracts and damages caused to third parties (including the Customer’s customers and their end users).
Without prejudice to the Belgian public order rules or mandatory principles of Belgian law, any kind of compensation for other types of contractual or tortuous liability resulting from any action, negligence or shortcoming by neXat is expressly excluded and to the maximum allowed extent.
11.2 neXat can not be liable for damages due to non-compliance by the Customer of its own obligations.
11.3 neXat cannot be held liable for the content of any information transferred or stored by the Customer or by any third party using (in)directly the Products and/or Services of neXat.
11.4 In all cases where the responsibility of neXat under clause 10 is established, its liability vis-à-vis the Customer shall be limited to a maximum up to the total amounts that the Customer has paid to neXat during the 6 months preceding the occurrence of the event causing the damage and these shall in no case exceed a cumulative amount of 100,000 EUR per event or series of related events.
12. FORCE MAJEURE
neXat can not be held responsible in the event of disruptions in the supply of its Products and/or Services when these disturbances are the result of acts or circumstances that are reasonably beyond its control, unforeseeable or unavoidable, such as, inter alia but not limited to: acts of war declared or undeclared; acts of terrorism; insurrection, riot, tumult, civil unrest; actions, seizure or expropriation initiated by civil or military authorities, blockage, embargo; explosion; strike, social/industrial dispute (including those involving its own staff); epidemics; extreme terrestrial or space weather affecting part or the entirety of the Products and/or Services in the neXat network, flood, earth quake, prolonged frost, fire, storm, solar storm or interference affecting satellite transmission; any cessation of activities or breach of contract by one of its supplier’s or out-of-stock conditions for Terminals with its suppliers, and interruption or latency due to maintenance or mandatory testing imposed by the satellite capacity provider.
13. APPLICABLE LAW AND JURISDICTION
13. 1 The present General Terms and Conditions of Sale and the Contract are governed exclusively by Belgian law, excluding its rules on conflicts of laws and the 1980 Vienna Convention on the International Sale of Goods.
13.2 In case of dispute as to the interpretation or as to the performance of these General Terms and Conditions of Sale, only the Court of Commerce (francophone chamber) in Brussels will have jurisdiction.
13.3 Any attempt of negotiation aiming at an amicable settlement can be initiated and conducted over a maximum period of thirty (30) days before bringing the matter before a court having jurisdiction, except in case of emergency situation or a request for interim measures.
13.4 All discussions and documents relating to the resolution of (a) dispute(s) will take place and will be drafted in French or English.
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