1.1. The present NowMax Terms and Conditions, together with its Annexes, are applicable to each Order Form exe-cuted between NowMax and the Client in respect of the Service.
1.2. These Terms and Conditions (except for the provisions regarding the Fees and the Term) also apply to free trials of the Service (“Trials”), unless if the context requires otherwise or if explicitly indicated otherwise in the specific Trial conditions. The eligibility conditions for a Trial and the specific Trial conditions shall be determined by NowMax in its sole discretion. In the context of a Trial, all references to “Client” shall be read as a reference to a Trial user.
Capitalised notions used throughout these Terms and Conditions shall have the meaning given to them below, unless stated otherwise:
Access Token means temporary credentials with limited possibilities with which an Interviewee can access the Service.
Account means the personalised login credentials with which the Interviewer accesses the Service.
Administrator means a User who can create Accounts within the Organization.
Agreement means the entire contractual relation between NowMax and the Client, consisting of (i) the Terms and Conditions, (ii) the relevant Order Forms and (iii) the Annexes.
Annex means any annex, schedule, appendix or other complementary document which forms a part of the Agreement.
Application means the NowMax application being either the Mobile App or the Browser App.
Browser App means a web browser application containing limited functionality of the Mobile App.
Business Day means any weekday other than a bank or public holiday in Belgium.
Business Hours means the hours of 09:00 to 17:00 CET on a Business Day.
Client means the legal or natural person entering into contractual relations with NowMax, as identified on the Order Form.
Client Personal Data means all Personal Data proprietary of or held by the Client.
Confidential Information of a Party means the information of such Party disclosed to the other Party during the negotiation of this Agreement and the cooperation between both Parties under this Agreement, whether in written, oral, electronic or other form and which (i) is explicitly marked as confidential or proprietary, (ii) should reasonably be considered confidential, or (iii) is traditionally recognized to be of a confidential nature, regardless of whether or not it is expressly marked as confidential, and including but not limited to all material, papers, databases, drawings, diagrams, calculations, figures, procedures, processes, business methodologies, contracts (including these Terms and Conditions), financial, technical and legal information, budgets, sales marketing, public relations, advertising and commerce plans, ideas, strategies, projections, business plans, strategic expansion plans, products and product designs. For the avoidance of doubt, Confidential Information shall include the Service in object code and source code form.
Credits means the credits (expressed in Minutes or otherwise) purchased by the Client, allowing the Client to use certain and/or all functionalities of the Service (as applicable), as further detailed in the Order Form.
Data Processing Agreement means the document attached to these Terms and Conditions in Annex 1 and setting out the terms and conditions governing the processing of Personal Data under the Agreement.
Data Protection Laws means all relevant regulation, national or international, concerning privacy and data protection, including but not limited to the General Data Protection Regulation (“GDPR”).
Documentation means the information provided by NowMax to the Client and/or the User(s), including without limitation the description of the Service and the user manual.
Effective Date means the date of last signature of the Order Form.
Fees means any and all amounts payable by the Client to NowMax under the Agreement, as set out in the Order Form.
Force Majeure means a temporary or permanent inability of NowMax to fulfil its obligations, resulting from unavoidable, unforeseeable and external facts and circumstances reasonably beyond the control of that Party. Shall in any case be considered Force Majeure (without being exhaustive): war or war risk, insurrection or public revolt, fire caused by an outside calamity, an import or export embargo imposed by the government, internet failure, hosting failure, floods, explosion, weather conditions, strike or social action and all other circumstances generally qualified as a Force Majeure.
High-Quality Output means a High-Quality Recording processed (trimmed, synchronized, enhanced, …) by the Server.
High-Quality Recording means the recording of the Interview by the Mobile App installed on a Device.
Incident means any impairment on the Service, such as downtimes, errors or a reduction of quality.
Intellectual Property Rights means all intellectual or industrial property right or equivalent, whether registered or unregistered, including but not limited to: (i) copyright (including moral rights), patents, database rights and rights in trademarks, logos, designs, other artwork, knowhow and trade secrets and other protected undisclosed information; and (ii) applications for registration, and the right to apply for registration, renewals, extensions, continuations, divisions, reissues, or improvements for or relating to any of these rights.
Interview means the online conversation between an Interviewer and an Interviewee via the Application. It includes the following elements: the Real-time Video Call, the High-Quality Recordings and the Low-Quality Recordings, the upload of the High-Quality Recordings from the Application to the Server, the creation of Outputs based on the Recordings and the sending of the Outputs to the Interviewer.
Interviewee means any person having received an invitation, which can contain an Access Token, for an Interview by an Interviewer, using the Service as an interviewee.
Interviewer means any person using the Service as an interviewer for whom the Client has purchased an Account and who is duly authorized by the Client to use the Service.
Invoice Date means the date indicated on the invoice and from which the payment term will be calculated.
Low-Quality Output means a Low-Quality Recording processed (trimmed, synchronized, enhanced, …) by the Server.
Low-Quality Recording means the recording of the Interview by the Server.
Maintenance Services means the works needed from time to time to ensure a correct functioning of the Service.
Minutes means the duration of the Real-Time Video Call and/or of the Recording (as applicable), expressed in minutes, whereby each minute started shall count as one Minute.
Mobile App means the version of the NowMax application installable/installed on Android or iOS.
NowMax means NowMax BV, a company organized and existing under the laws of Belgium having its registered office in 2980 Zoersel, Fazantendreef 12, Belgium and registered with company number 0696.764.460.
Order Form means a written document signed (manually or electronically) by both Parties, regardless of its name (e.g. “proposal”, “quotation” or “product order”), indicating the nature, number and other specifics of the Service, including the specific conditions under which such order is made and the Fees and which forms an integral part of the Agreement.
Output means a Recording processed (trimmed, synchronized, enhanced, …) by the Server.
Party means NowMax and/or the Client.
Personal Data has the meaning given to it in article 4 (1) of the General Data Protection Regulation.
Real-Time Video Call means the real-time audio/video call between Interviewer and Interviewee via the Application.
Recording means any part of an Interview that has been recorded via the Service, being a High-Quality Recording or a Low-Quality Recording.
Server means the SaaS infrastructure operating in a third-party datacenter to provide the Service.
Service means the SaaS service delivered by NowMax and accessible by Users via the Application, as described on www.NowMax.app.
Term means the Initial Term and/or any Renewal Term.
Terms and Conditions means the present NowMax terms and conditions including, where relevant, any schedules or annexes, referred to therein.
Third Party means any natural or legal person who is not a Party to the Agreement.
User, you or your means the individual accessing and/or using the Service, being either (i) an Interviewer or (ii) an Interviewee or (iii) an Administrator.
3.1. In consideration of the Client’s compliance with the provisions as set out in this Agreement (including timely payment of all Fees), NowMax grants the Client during the Term a personal, restricted, non-exclusive, non-transferrable and non-assignable, renewable and revocable, worldwide license to install the Mobile App and to access and use (through its User(s)) the Service as specified in the Order Form.
3.2. Any such installations, access and use by the Client and its User(s) shall be strictly subject to the terms as set out in these Terms and Conditions and in the remainder of this Agreement.
4.1. All access to and use of the Service by the Client and/or its User(s) shall at all times be in accordance with (i) the applicable Documentation; (ii) the provisions of the Agreement; and (iii) any reasonable instructions of NowMax.
4.2. Access to and use of the Service is only permitted for Users having reached the age of majority and having an Account or an Access Token. The Client shall purchase one Account for each individual User. Accounts are personal and cannot be transferred or exchanged in any way to other persons.
4.3. The Client explicitly agrees (and shall procure that its User(s) agree) not to, directly or indirectly (including, without limitation through the actions of any affiliate, agent, subcontractor, User or, in general, any Third Party): (i) use the Service other than in accordance with its intended purpose, the Agreement and for the Client’s internal business purposes; (ii) distribute, sell, lease, commercialize, rent, display, license, sublicense, transfer, provide, disclose, or otherwise make available to, or permit the use of, or access to, the Service, in whole or in part, to any Third Party, whether or not related to the Client, except as expressly permitted in the Agreement or otherwise; (iii) modify the Service or develop any derivative works based on the Service or any Confidential Information of NowMax; (iv) decompile, disassemble, translate, reverse engineer or attempt to reconstruct, identify or discover, copy, create derivative works based upon the source code of the Service, underlying ideas, underlying user interface techniques or algorithms of the Service by any means whatsoever (except to the extent such restriction is prohibited under applicable law), or disclose any of the foregoing; (v) encumber or suffer to exist any lien or security interest on the Service; (vi) take any action that would cause the Service, or the source code to be placed in the public domain; (vii) work around any technical limitation in the Service; and (viii) remove proprietary notices (including copyright notices) of NowMax.
4.4. The Client shall (and shall procure that its Interviewers shall) comply with all applicable laws relating to the use of the Service. The Client shall (and shall procure that its Interviewers shall) not use the Service: (i) in any way that is unlawful, illegal, fraudulent or harmful; or (ii) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
4.5. The Client shall be responsible for ensuring that no unauthorised person may gain access to the Service using an Account or Access Token, including by implementing appropriate security measures relating to the Accounts and Access Tokens. The Client shall immediately notify NowMax if it has reason to believe that any Account is no longer secure (e.g. in case of loss or theft of any device on which the Application is installed or of any passwords).
4.6. Any access to and/or use of the Service via an Account or Access Token provided by NowMax to the Client shall be deemed to be authorized by the Client and shall be processed as such, including, but not limited to, for the calculation of the applicable Fees.
4.7. The right to access and use the Service, is expressly restricted to the rights, limitations and other terms set forth in the Agreement and the Client shall not be able to invoke any alleged implied rights which are not expressly set out under the Agreement.
4.8. The Client acknowledges and agrees that any access to and use of the Service in breach of the terms as set forth in this Agreement (unless such access and/or use has been expressly approved in writing by a duly authorized representative of NowMax), shall entitle NowMax to immediately terminate (or alternatively, at NowMax’s option, suspend) the Agreement for material breach by the Client, without any formalities being required and without prejudice to any other right or remedy available to NowMax pursuant to this Agreement or under applicable law.
5.1. NowMax may periodically update the Service. Updated versions of the Service will be made available to the Client via automatic updates and upgrades or via new releases (if applicable). NowMax reserves the right to make operational or technical changes to the Service, and to modify, add or remove certain functionalities.
5.2. NowMax shall use all reasonable endeavours to maintain the availability of the Service to the Client, but does not guarantee 100% availability.
5.3. The Client acknowledges that in order to ensure a correct functioning of the Service, Maintenance Services are needed from time to time. NowMax shall carry out such Maintenance Services at its sole discretion and shall use all reasonable endeavours to minimise the impact on the Client’s day-to-day business. Where practicable, NowMax shall give to the Client prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Service or are likely to have a material negative impact upon the Service. NowMax shall not be liable for costs incurred by the Client as a result of any non-availability of the Service due to Maintenance Services.
6.1. Unless determined otherwise in the Order Form, NowMax or a third party appointed by NowMax will maintain a helpdesk during Business Hours for providing, on Users’ requests, information and advice about the use of the Service and support in resolving or remedying Incidents.
6.2. Unless determined otherwise in the Order Form, the Client will report Incidents electronically to NowMax’s helpdesk or the third party appointed by NowMax, whose contact details are provided in the Order Form; any report made by a Client must, where possible, be accompanied by a documented example of the Incident. If required, and at the request of NowMax or the third party appointed by NowMax, the Client will collect as much data as possible to enable the cause of the Incident to be established as soon and as clearly as possible.
6.3. NowMax or the third party appointed by NowMax will use their best efforts to handle any Incident reported as such if the Incident is demonstrable and reproducable.
6.4. During Business Hours, NowMax or the third party appointed by NowMax will respond to a report and will start to remedy the Incident as soon as is reasonably possible.
6.5. Work carried out by NowMax for the Client as a result of Users’ and/or the Client’s (a) inexpert use of the Service or non-compliance with NowMax’s instructions; (b) use contrary to these Terms and Conditions; or (c) use of the Service other than that described in the Documentation, will be invoiced to the Client at NowMax’ then applicable rates.
6.6. The provisions of this article do not affect the Client’s obligation to take appropriate measures itself and to maintain them to prevent and limit the consequences of: Incidents, Defects and/or the corruption or loss of data or other occurrences.
7.1. The Service, the Documentation (including any new versions, updates, customizations, enhancements, modifications or improvements made to the Service or Documentation) and all Intellectual Property Rights vested therein are the sole and exclusive property of NowMax and/or its licensors and are protected in accordance with local, national and international legislation.
7.2. NowMax and/or its licensors do not grant any other rights to the Service than granted pursuant to this Agreement and nothing in the Agreement shall convey any title or proprietary right or Intellectual Property Rights in or over the Service and the Documentation to the Client, the User(s) or any Third Party.
7.3. The Client agrees not to remove, suppress or modify in any way any proprietary marking, including any trademark or copyright notice, on or in the Service, or visible during its operation, or on media or on any Documentation.
8.1. The Client expressly acknowledges that the operation of the Service requires that each User has or obtains, at its own or at the Client’s cost (as applicable), a Device and stable high-speed internet access, as further detailed in the Documentation. The performance of the Service may be affected by such external factors.
8.2. The Client acknowledges that the Service requires significant amounts of internet data (either mobile data or Wi-Fi data, both during the Interview as thereafter for the (automatic) upload of the Recording.
8.3. The Client and/or its User(s) (as applicable) are responsible for all mobile data fees, internet fees and any other taxes and fees associated with their use of the Service and/or the Device(s). NowMax cannot be held liable for any such charges or fees.
9.1. The Client is responsible for the activities of all Users who access or use the Service through the Account(s) provided to the Client and for providing its Users with any additional obligations and/or restrictions it deems necessary or useful, e.g. in respect of the number of Interviews, the duration thereof and/or other elements having an impact on the Fees.
9.2. The Client acknowledges that (i) NowMax does not have any obligation to set any limits to its Users’ use of the Service; and (ii) that any use of the Service in excess of the Credits (if any) for the relevant period shall be charged separately in accordance with the Fees set out in the Order Form.
9.3. Under no circumstances shall NowMax refund Fees that are due as a result of any use of the Service (i) by your Users without your permission; (ii) in excess of the Credits (if any) for the relevant period; and/or (iii) in breach of any additional obligations or restrictions you have imposed upon your Users.
10.1. NowMax has the right (but not the obligation) to monitor and inspect the usage of the Service by the Client and/or the Users (including, but not limited to, monitoring that for each Interviewer a valid Account has been purchased). If such inspection shows that the Client has underpaid the amount of Fees due to NowMax, without prejudice to any other rights and remedies available to NowMax, the Client shall promptly pay the amount of such underpayment to NowMax together with a fixed penalty of twenty (20) percent of the underpaid amount.
11.1. The applicable Fees shall be indicated in the Order Form and may consist of both (recurring) fixed fees (monthly or otherwise) as specified in the Order Form (e.g. for a fixed number of available Credits) and/or variable fees (e.g. fees for use of the Service without having purchased Credits or for use in excess of available Credits), as specified in the Order Form.
11.2. The Client agrees that it shall pay any and all Fees incurred as a result of its Users use of the Service on the basis of the reporting made available by NowMax.
11.3. Unless explicitly indicated otherwise in the Order Form, any fixed fees shall be invoiced monthly upfront and any variable fees shall be invoiced monthly in arrears.
11.4. The number and type of included Minutes and the maximum number of downloads of the Output may vary according to the fee model. NowMax shall have the right to modify, at its sole discretion, the Fees and the fee model from time to time. Such modification will be notified to the Client with at least one month prior notice, allowing the Client to terminate the Agreement in case the Client would not agree with such changes.
11.5. The Client shall use one of the payment methods accepted by NowMax, as indicated in the Order Form or during the order process.
11.6. In the event of payment via credit card, the Client shall pay the first recurring fixed Fee via credit card on the Effective Date. The ensuing recurring fixed Fees (as applicable) and the variable fees (if any) shall thereafter automatically be debited from the Client’s credit card at the intervals indicated in the Order Form. Before or promptly after each payment via credit card, NowMax shall issue a corresponding invoice. If no upfront payment can be processed due to whatever reason, NowMax reserves the right to suspend the Service.
11.7. In the event of payment by wire transfer (or such other payment methods as made available by NowMax), all invoices are payable within thirty (30) calendar days after the Invoice Date. If a Client disputes an invoice (or any portion thereof), the Client must notify NowMax in writing of the nature of such dispute within ten (10) Business Days, after the Invoice Date. Failure to notify NowMax within such period shall result in the invoice deemed accepted by the Client. The undisputed portion of the invoice shall be paid as set forth in the Agreement.
11.8. Payments made by the Client to NowMax under the Agreement shall be final and non-refundable.
11.9. All Fees payable to NowMax under the Agreement shall be paid without the right to set off or counter-claim and free and clear of all deductions or withholdings whatsoever unless the same are required by law, in which case the Client undertakes to pay NowMax such additional amounts as are necessary in order that the net amounts received by NowMax after all deductions and withholdings shall not be less than such payments would have been in the absence of such deductions or withholding.
11.10. Unless explicitly agreed otherwise, all invoices shall be sent electronically to the Client’s email address specified in the Order Form.
11.11. Any amounts of undisputed invoices that have not been paid within thirty (30) days after the Invoice Date shall automatically and without notice be subject to a late payment interest equal to the highest amount allowable under the Belgian act of 2 August 2002 on combatting late payment in commercial transactions. The interest shall be compounded daily as of the due date until receipt of full payment by NowMax. In addition, the Client shall pay all costs incurred by NowMax as a result of the (extra)judicial enforcement of the Client’s payment obligation under this clause.
12.1. Unless otherwise indicated in the Order Form, the Agreement commences on the Effective Date and is entered into for the initial term set out in the Order Form (“Initial Term”), and automatically renewed for successive additional periods but only if explicitly indicated in the Order Form (each a “Renewal Term”). If automatic renewals apply either Party shall have the right to stop such automatic renewals by giving notice of non-renewal at least ten (10) days before the end of the then-current term.
13.1. NowMax may, at its sole discretion, suspend or terminate the Agreement, partially or wholly, by written notice to the Client, if the Client fails to pay to NowMax any amount due under the Agreement and the Client fails to cure such failure to pay within thirty (30) days from the date of a written notice of default from NowMax to the Client.
13.2. Either Party may immediately terminate the whole or any portion of the Agreement without any judicial intervention, without being liable for compensation and without prejudice to its rights to damages and any other rights, remedies and/or claim to which it may be entitled by law, upon providing the other Party with written notice of termination if: (i) the other Party performs a material breach to any provision of the Agreement and fails to cure such material breach within thirty (30) calendar days after receipt of written notice of the material breach or (ii) the other Party becomes insolvent, is subject to voluntary or involuntary bank-ruptcy, insolvency or similar proceeding or otherwise liquidates or ceases to do business.
13.3. For the avoidance of doubt, termination by NowMax under these clauses 13 shall also immediately terminate all Accounts and Access Tokens.
14.1. Upon termination or expiry of the Agreement: (i) the Client’s and User’s right to use the Service will automatically cease and all licenses granted to the Client pursuant to the Agreement shall automatically terminate; (ii) each Party will return, within reasonable time of such termination or expiration, all Confidential Information, except as required to comply with any applicable legal or accounting record keeping requirement; (iii) any remaining Credits shall become void and NowMax shall not be obliged to refund any such Credits to the Client; and (iv) the Client shall promptly pay NowMax all fees and other amounts due to NowMax in respect of the Service, up to and including the date of termination.
14.2. Termination or expiry of the Agreement shall be without prejudice to the rights and liabilities of each Party which have accrued prior to the date of termination, and shall not affect the continuance in force of the provisions of the Agreement which are expressly or by implication intended to continue in force, including, without limitation, the provisions relating to Intellectual Property Rights, Confidential Information and Limitation of Liability.
15.1. The Client acknowledges that the Service and Services are provided “as is” and that NowMax makes no additional warranties, implied or express (including warranties of merchantability and fitness for a particular purpose). NowMax does not guarantee that the Service will function error-free or without interruptions.
15.2. In addition and without prejudice to the foregoing, NowMax shall not be responsible for any error or non-conformity of the Service if the same is attributable to: (i) the Client’s, its Users’ or any Third Party’s actions (including specific developments and customisations required by the Client), services, internet connectivity, network connections, software or equipment not provided by NowMax under or pursuant to this Agreement; (ii) any changes, modifications, updates, alterations or enhancements to the Service not provided by NowMax under or pursuant to this Agreement, or caused by the incorrect use, abuse, neglect, improper installation or operation, accident misconfiguration and/or alteration, or corruption of the Service or by the use of the Service with other computer programs or on equipment or with services which NowMax did not approve; (iii) any inaccuracies, delays, interruptions, or errors occurring as a result of incorrect data or data which does not conform to required input formats; (iv) the Service being used or subject to actions by the Client or its Users, in deviation of the stipulations or provisions set out in the latest version of the Documentation and this Agreement or in any way which is not compatible with the Service’s normal use.
15.3. The Client shall indemnify, defend and hold harmless from and against any damages, losses, costs and expenses (including reasonable attorney fees) suffered or incurred by NowMax arising out of Client’s infringement of any third party’s rights (including privacy rights and Intellectual Property Rights).
16.1. At the Effective Date, the hosting services used in the context of the Service (“Hosting Services”) are provided by third-parties. At all times during the Term, NowMax shall have the right to choose other hosting partner(s).
16.2. NowMax cannot be held liable for any malfunctioning of the Hosting Services.
17.1. Each Party shall comply with the Data Protection Laws with respect to the processing of the Client Personal Data. The Client warrants to NowMax that it has the legal right to disclose all Personal Data that it does in fact disclose to NowMax under or in connection with this Agreement and that the Client has obtained sufficient consent from all data subjects concerned (if applicable).
17.2. The Client shall only supply to NowMax, and NowMax shall only process, in each case under or in relation to this Agreement, the Personal Data of data subjects falling within the categories specified in the Data Processing Agreement as concluded between the Parties and as attached hereto.
17.3. If any changes or prospective changes to the Data Protection Laws result or will result in one or both Parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Agreement, then the Parties shall use their best endeavours promptly to agree such variations to this Agreement as may be necessary to remedy such non-compliance.
18.1. NowMax shall indemnify and defend the Client against any claims brought by Third Parties to the extent such claim is based on an infringement of the Intellectual Property Rights of such Third Party by the Service.
18.2. Claims resulting out any of the following are excluded from clause 18.1 : (i) the Client’s or User’s unauthorized use of the Service; (ii) the Client’s, User’s or any Third Party’s modification of the Service; (iii) the Client’s or User’s failure to use the most recent version of the Service made available to the Client; (iv) the Client’s or User’s failure to integrate or install any corrections to the Service issued by NowMax, if NowMax indicated that such update or correction was required to prevent a potential infringement, or (v) Client’s or User’s use of the Service in combination with any non-NowMax Service or services.
18.3. The indemnity obligation under this section shall be conditional upon the following: (i) the Client promptly notifies NowMax in writing of any such claims; (ii) the Client grants NowMax sole control of the defence and settlement of such claim; (iii) the Client fully cooperates with NowMax upon request; (iv) the Client makes no admission as to NowMax’s liability in respect of such claim, nor does the Client agree to any settlement in respect of such a claim without NowMax’s prior written consent.
18.4. If, in NowMax’s reasonable opinion, the Service is likely to become the subject of a Third Party claim, NowMax shall, at its sole discretion, have the right to: (i) modify parts of the Service so that they become non-infringing, provided equivalent functionality is preserved; (ii) obtain for the Client a license to continue using the Service in accordance with the Agreement; or (iii) terminate the Agreement.
18.5. The Client acknowledges and agrees that the foregoing states the entire liability and obligation of NowMax and the sole remedy of the Client with respect to any infringement or alleged infringement of any Intellectual Property Rights caused by the Service or any part thereof.
19.1. Parties shall treat all Confidential Information received from the other Party as confidential, keep it secret and shall not disclose it to any Third Party, other than its agents, employees, advisors or consultants where such disclosure is necessary for the performance of the Agreement and only in case such agents, employees, advisors or consultants are bound by a confidentiality obligation at least as strict as included in the Agreement.
19.2. Confidential information disclosed in the execution of this Agreement shall not be used for any purpose other than as required for the performance of either Parties’ obligations under the Agreement.
19.3. Both Parties shall take sufficient measures to maintain the confidentiality of all Confidential Information. Parties in particular agree that they: (i) shall not copy or otherwise exploit any component of the Confidential Information other than as herein provided, nor make any disclosures with reference thereto to any Third Party; (ii) shall promptly notify the other Party if it becomes aware of any breach of confidentiality and give the other Party all reasonable assistance in connection with the same.
19.4. For the purposes of this section, shall not be considered Confidential Information, information that: (i) is published or comes into the public domain other than by a breach of the Agreement, (ii) can be proven to have been known by the receiving Party before disclosure by the disclosing Party; (iii) is lawfully obtained from a Third Party other than by a confidentiality breach of such Third Party; or (iv) can be shown to have been created by the receiving Party independently of the disclosure.
19.5. If and to the extent required in accordance with a judicial or other governmental order, the receiving Party may disclose Confidential Information, provided that the receiving Party (i) gives the disclosing Party reasonable prior notice to seek a protective order or equivalent, unless the receiving Party is legally prohibited from doing so; (ii) reasonably cooperates with the disclosing Party in its reasonable efforts to obtain a protective order or other appropriate remedy; (iii) discloses only that portion of the Confidential Information that it is legally required to disclose; and (iv) uses reasonable efforts to obtain reliable written assurances from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection available under applicable law or regulation.
19.6. The obligations set out in this clause 19 shall enter into force as from the start of negotiations between the Parties and shall survive during five (5) years after the termination or expiry of the Agreement. The confidentiality obligations in the Agreement replace any prior non-disclosure agreement signed between the Parties.
20.1. Subject to the maximum extent permitted under applicable law, NowMax’s liability under the Agreement shall: (i) per event (or series of connected events) not exceed the Fees paid by the Client to NowMax under the Agreement for a period of six (6) months prior to the date of the event (or last of the series of connected events) giving rise to the claim; and (ii) in the aggregate, per contract year, Fees paid by the Client to NowMax under the Agreement during the preceding twelve (12) months.
20.2. NowMax shall under no circumstances be liable to the Client for any indirect, punitive, special consequential or similar damages (including damages for loss of profit, lost revenue, loss of business, loss or corruption of data, loss of customers and contracts, loss of goodwill, the cost of procuring replacement goods or services, and reputational damage) whether arising from negligence, breach of contract or of statutory duty or otherwise howsoever, and third parties’ claims. Each Party shall have the duty to mitigate damages. The exclusions and limitations of liability under this article shall operate to the benefit of NowMax’s affiliates and sub-contractors to the same extent such provisions operate to the benefit of NowMax.
20.3. NowMax cannot be held liable in any way, neither contractually nor extra-contractually, for discontinuing an older release of the Service or for damages caused by the wrongful (or out of scope) use of the Service.
21.1. Entire agreement – The Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior oral or written agreements, representations or understandings between the Parties relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in the Agreement shall affect, or be used to interpret, change or restrict, the express clauses of the Agreement. The Client agrees to waive its own general and special terms and conditions, even where it is stated therein that only those conditions may apply and even if such terms and conditions were not protested by NowMax.
21.2. Amendments – The terms of the Agreement may be modified or amended only by written agreement executed by a duly authorized representative of both Parties hereto.
21.3. Waiver – The terms of the Agreement may be waived only by a written document signed by both Parties. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent.
21.4. Compliance – Nothing in this Agreement will prevent NowMax from complying with any applicable legislation. The Service is not intended for distribution to, or use in, any country where such distribution or use would violate local law. NowMax reserves the right to limit the availability of the Service in certain countries, including (without limitation) for regulatory reasons.
21.5. Severability – If any provision of the Agreement is determined to be illegal, void, invalid or unenforceable, in whole or in part, the remaining provisions shall nevertheless continue in full force and effect. The provisions found to be illegal, invalid or unenforceable shall be enforceable to the full extent permitted by applicable law. Each Party shall use its best efforts to immediately negotiate in good faith a valid replacement provision with an equal or similar economic effect.
21.6. Assignment – NowMax may assign, transfer and/or subcontract the rights and obligations under the Agreement to any Third Party. The Client shall not assign or otherwise transfer any of its rights or obligations under the Agreement without NowMax’s prior written consent. NowMax’s consent should be requested by registered letter, disclosing the identity of the prospective transferee. Subject to any restrictions on assignment herein contained, the provisions of the Agreement shall inure to the benefit of and shall be binding upon the Parties hereto and their respective heirs, legal representatives, successors and assignees.
21.7. Force Majeure – NowMax will not be responsible or liable for any failure or delay in the performance of its obligations under the Agreement arising out of or caused by Force Majeure.
21.8. Publicity – NowMax shall have the right to use any trademarks, logos or other marks of the Client (including the Client’s corporate name) for client references on NowMax’s website, social media announcements and sales presentations.
21.9. Relationship between the Parties – The relationship between NowMax and the Client is that of independent contractors. Neither Party is agent for the other and neither Party has any authority to make any contracts, whether expressly or by implication, in the name of the other Party, without that Party’s prior written consent for express purposes connected with the performance of the Agreement.
21.10. Notices – Any notice required to be served by the Agreement shall in first instance be given by electronic mail to the email addresses set out in the Order Form. All notices given by electronic mail, shall only be valid in case confirmation of receipt was expressly given by electronic mail by the receiving Party. In case no confirmation of receipt was given by NowMax within five (5) Business Days, all notices can be done in writing and served by personal delivery and/or registered letter (confirmed by registered letter) addressed to either Party at its address given in the Order Form or to such other address as a Party may designate by notice hereunder. All notices shall be deemed to have been given either (i) if by hand, at the time of actual delivery thereof to the receiving Party at such Party’s address, (ii) if sent by overnight courier, on the next Business Day following the day such notice is delivered to the courier service, or (iii) if sent by registered or certified mail, on the fifth (5th) Business Day following the day such mailing is made.
21.11. Conflict – In case of conflict between the provisions of the contractual documents executed between the Parties, the first document shall prevail on the latter: (i) the Order Form, (ii) the Terms and Conditions (iii) the Annexes, unless explicitly agreed otherwise in written between the Parties.
21.12. Interpretation – The terms of the Agreement shall be interpreted as follows (unless the context shall otherwise require or permit): (i) reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted; (ii) words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and incorporate; and each case vice versa; (iii) the headings or captions to the clauses are for ease of reference only and shall not affect the interpretation or construction of the Agreement.
21.13. Language – The Agreement is entered into in the English language only; which language shall be controlling in all respects. All communications and notices made or given pursuant to the Agreement shall be in English, Dutch or French.
21.14. Applicable law and jurisdiction – The Agreement shall be governed by and construed in accordance with the laws of Belgium and the Parties hereto submit to the exclusive jurisdiction of the courts of Antwerp, division Antwerp. The United Nations Convention for the International Sale of Goods shall not apply to the Agreement.