These Terms of Use for the ngena Portals (the “Terms”) govern the use of online portals available via login pages at https://connect.ngena.net and https://login.ngena.net (the “Portals”), operated by ngena GmbH, a limited liability company under German laws registered with the commercial register at the local court of Bonn under HRB 20074, with its business address at Hahnstr. 40, 60528 Frankfurt, Germany (“ngena”).
These Terms come into force between ngena and an individual user who has requested the registration of a user account for the Portals and who has accepted these Terms (the “User”), upon ngena’s confirmation of the registration of the account.
1. Background
ngena provides certain network services to its business partners (“Partners”), who may be end customers or resellers of ngena’s services, in accordance with the legal agreement concluded between ngena and such Partners (“Service Agreement”).
The Portals provide information related to ngena’s services and include functions such as selecting the desired product, ordering, reporting, ticketing and troubleshooting.
ngena in its sole discretion may grant access to the Portals to employees of Partners and interested persons via their personal “User Accounts”. In addition, ngena will register user accounts for employees of Partners and end customers in case it is agreed in the Service Agreement.
2. User Account
The User Account is personal to each User. The User may not sell, trade, assign or otherwise transfer the User Account to any other person or entity.
The User shall ensure that the login information for the User Account is kept secure at all times and not shared with any other person or entity. In the event the User becomes aware of or reasonably suspect any breach of security, such as an unauthorised access to the User Account by a third party, or any loss, theft or disclosure of the login information, the User shall immediately notify ngena.
3. Use of the Portals
3.1. The User may use the Portals only for the business purpose of pursuing a specific project involving ngena’s services (such as requesting quotes, ordering, reporting and troubleshooting). It is prohibited to engage in extraction of data and information from the Portals which is unrelated to a specific project on ngena services pursued by the User. The features and functionalities of the Portals may be updated by ngena from time to time.
3.2. In relation to the quoting stages available in the Portals, the following applies:
3.2.1. BUDO stage
At the BUDO stage (meaning the stage, at which “BUDO quotes” may be created), the User obtains preliminary indication of prices for ngena’s services for the indicated project as a rough reference, and ngena receives the project information so that ngena can support the User, e.g. by contacting the User and suggesting the next appropriate steps.
The User acknowledges and agrees that the data accessible at this stage are not binding in any way and such data shall not be the basis for any claims against ngena.
3.2.2. BINO stage and subsequent stages
Activities at the BINO stage (meaning the stage, at which “BINO quotes” may be created) and at subsequent stages are governed by the respective Service Agreement.
In case the User has been granted access to the BINO stage without the respective Service Agreement in place, the User acknowledges and agrees that the data accessible at this stage are not binding in any way and such data shall not be the basis for any claims against ngena.
3.3. Nothing in these Terms can be interpreted as creating a contractual relationship between ngena and the User and/or any third party in relation to the provision of network services, which are governed exclusively by the Service Agreement. The User shall be responsible for all actions made via the User’s User Account. ngena shall not be responsible for any activities in the Portals using the User’s User Account.
The User shall only use the Portals in accordance with these Terms and the Service Agreement (if applicable). The Portals shall not be used for any other purpose.
4. Prohibited Activities
When using the Portals, it is prohibited to engage in any illegal, harmful or otherwise inappropriate activities, including but not limited to the following:
5. Confidentiality
All information on quotes, orders and customer projects accessed via the Portals is confidential (“Confidential Information”). With respect to any Confidential information, the User shall (i) use the Confidential Information only for the purpose of these Terms, (ii) not distribute, disclose or otherwise disseminate the Confidential Information, (iiI) take all possible measures to prevent its distribution, disclosure or dissemination of the Confidential Information and (iv) ensure the secure storage of the Confidential Information.
The User may disclose the Confidential Information on a need-to-know basis to User’s co-workers, i.e. employees of the company, in which the User is employed, and employees of Partner with whom the User is associated (if applicable).
The obligation of confidentiality shall not apply to the Confidential Information (i) which is or becomes generally available to public other than as a result of breach of these Terms, (ii) which was already in possession of the User prior to disclosure under these Terms, and (iii) which is requested to be disclosed by a court or governmental agency based on a legal requirement.
The obligations of confidentiality under these Terms shall continue for a period of five years after the User’s access to the Portals has ended.
6. Intellectual Property
The materials provided in the Portals, including texts, images, graphics, videos, white papers, brochures, product documentation, etc. (“Materials”) are protected by German and international intellectual property laws. Unauthorized use of the Materials is prohibited. In particular, it is not allowed to reproduce, display, modify, sell or otherwise use the Materials in any way for any public or commercial purpose, unless ngena explicitly permits it in relation to a specific material.
7. Limitation of Liability
ngena does not charge the User for the use of the Portals and ngena provides the access to the Portals “as is”, without warranty of any kind. In particular, but not limited to, ngena does not provide any warranty for any feature or availability of the Portals, nor for the correctness or completeness of information accessible via the Portals.
ngena is not liable for any indirect, incidental or consequential damage, including but not limited to loss of profits or revenue, loss of business or business opportunity, business interruption, loss of data, or damage to reputation.
ngena’s statutory liability remains unlimited for death or personal injury, intent or gross negligence, and claims under applicable product liability laws.
For the avoidance of doubt, the provisions on liability in the applicable Service Agreement (if any) prevail over the provisions on liability in these Terms.
8. Indemnity
The User agrees to indemnify and hold ngena, its directors, officers, agents and affiliates harmless from and against any loss, liability or claim (including reasonable attorney fees) arising out of or in connection with the User’s breach of these Terms or User’s use of the Portals in an unlawful manner.
9. Changes to the Terms
A current version of these Terms is available via the link on the login page of the Portals. ngena may amend the Terms at any time to reflect the further development of the Portals or changes in technical or legal requirements as follows:
9.1. in case of (i) amendments due to technical changes or (ii) other amendments that do not have an adverse effect on a User, ngena will give a notice to the User via email or by other appropriate means; if the User does not object to these changes within 4 weeks after the receipt of the notice, the changes will be deemed to be accepted; this will be described in the notice. If the User objects to the changes, ngena may terminate the Terms or any portion of them upon reasonable notice.
9.2. In cases not covered by Section 9.1 above, ngena will ask for User’s explicit consent. If the User does not consent to the amendment, the Terms will continue to apply unchanged; however, ngena may terminate the Terms or any portion of them upon reasonable notice.
10. Termination
The User may terminate the Terms at any time by providing a one week notice (in writing or by email) to ngena.
ngena may terminate the Terms, or any part of them, with immediate effect in case of a User’s breach of the Terms. ngena may also terminate the Terms, or any part of them, for legal, technical or commercial reasons, with a reasonable advanced notice.
In addition, ngena may suspend, block or otherwise restrict User’s access to the Portals at any time if it is required in ngena’s reasonable judgement.
If the Terms are terminated for any reason, Sections 7, 8, 11 and 13 of the Terms shall remain in effect.
For the avoidance of doubt, the termination provisions in the applicable Service Agreement (if any) prevail over the termination provisions in these Terms.
11. Interpretation
If any provision of the Terms is found to be invalid, wholly or in part, this shall not affect the validity of the other provisions of the Terms. Invalid provisions shall be replaced by provisions which reflect most closely the initial intention.
12. Contact
Any questions and notifications regarding these Terms may be sent to ngena by email to: connect@ngena.net.
13. Governing Law and Jurisdiction
These Terms shall be governed by the laws of Germany without reference to its conflict of law provisions. The UN convention on contracts on the international sale of goods (CISG) is excluded.
The sole place of jurisdiction for any disputes arising from and in connection with these Terms shall be Frankfurt am Main, Germany, unless there is a sole statutory place of jurisdiction.
Version 01.2022(2)
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