General Terms and Conditions (GTC)

1. Definitions

As used on those GTC, the following terms have the meaning set forth below.

"Authorized User" means Customer or its employees, contractors, agents, or any other individual authorized by Customer to access and use the Services, via Customer’s account, for the purpose specified herein.

“Business day“ means a day other than a Saturday, Sunday or a Holiday.

“Customer” means the person, firm, company, corporation or authority specified in the Order Form as the customer and includes his/her, its or their successors or personal representatives.

“Customer Data” means the data inputted by Customer, Authorized Users, ("BX") and  ("NCM") on Customer’s behalf for the purpose of using the Services or facilitating Customer’s use of the Services.“Customer Personal Data” means any personal data provided by Customer and that ("BX") and ("NCM") processes in connection with those GTC.

"Days Off" means Saturday and Sunday, being the days of the week during which  ("BX") and ("NCM") employees and personnel do not work.

“Documentation” means the documents made available to the Customer by ("BX") and ("NCM") which set out a description of the Services and the user instructions for the Services.​

“Effective Date” means the first date that Customer accesses the Services."Extraordinary Termination" refers to the termination of the contract before the end of the agreed contract period due to significant reasons that make the continuation of the contract untenable for one or both parties.“Fees” means the amounts payable by Customer to ("BX") and ("NCM") for access to the Services as set out in an Statement of Order.

‍"Good Cause" for the purposes of this contract, good cause includes but is not limited to; a) the customer’s failure to pay an amount equal to or exceeding two monthly contributions after receiving a payment reminder and a grace period of at least 14 calendar days; b) any other significant breach of contract by the customer that materially affects ("BX") and ("NCM")´s ability to provide its services; c) the customer entering into insolvency, bankruptcy, or similar legal proceedings that jeopardize their ability to fulfill their contractual obligations.

"Gross Negligence" a failure to exercise even the slightest degree of care, indicating a severe disregard for the consequences of one's actions that a reasonable person would foresee as likely to cause harm.

"Material Contractual Obligations" obligations whose fulfillment is essential to the proper execution of the contract and which the customer can regularly rely on. This includes obligations that, if not performed, compromise the achievement of the contract's purpose.

“Public Holiday” means a day declared as a public holiday in the country of incorporation of the relevant party, including New Year’s day, Christmas day (including Catholic and Orthodox Christmas), Woman's Day, Easter (including Catholic and Orthodox Easter), Labor Day (2 days), Victory Day, Trinity Day, Constitution Day, Independence Day, Defenders’ Day, Eid Holidays or any other public holidays in the countries wherein both the Parties have their offices or operating).

"Simple Negligence" a failure to exercise the care that a reasonably prudent person would exercise in similar circumstances, resulting in unintended harm or damage.

“Statement of Order” means the ordering document mutually executed by ("BX") and ("NCM") and Customer specifying: (1) the Fees, (2) the duration of the Services, (3) the number of Authorized Users, and (4) other billing and payment information.

“User Subscriptions” means the user subscriptions purchased by Customer that entitle Customer and/or Authorized Users to access and use the Services in accordance with those GTC."Website” means digital-ncm.com, brandex.co, flowex.co, brandexcellence.us, and  ncm.management

2. VALIDITY OF THE GTC

These General Terms and Conditions (GTC) apply to all contracts and transactions of ("BX") and ("NCM") with its customers of the product lines SEO (search engine optimization), Videoreels, Automations and other product lines unless otherwise agreed in individual cases. The Customer has either, (a) signed and dated a hard copy of the Statement of Order Form; (b) or signed and dated the Statement of Order Form sent electronically; or (c) sent an electronic communication confirming that it has accepted the Statement of Order Form.

3. DUE DATE OF CONTRIBUTIONS

3.1 If a one-off contribution is agreed on the contract cover sheet, this is due on the day the contract is concluded.

3.2 If monthly premiums are agreed upon conclusion of this contract, these premiums shall be due in advance on the date specified in the payment agreement for the respective calendar month (partial benefit period), unless otherwise contractually agreed.

3.3 If a recurring training and service fee has been agreed between the parties on the contract cover sheet or in any other way, this shall, unless otherwise agreed, be due for the first time at the beginning of the second month after the start of the contract, and thereafter on the first day of each month after a further 6 months of the contract.

4. DEFAULT OF PAYMENT

‍4.1 Unless stated otherwise in a Statement of Order, all payments are payable in EUR (euro), exclude any value added tax or other tax, bank or payment remittance charges, and are non-cancellable and non-refundable.

4.2 The Customer agrees to pay all amounts payable under statement of Order free and clear of all deductions or withholdings or rights of counter claim or set-off, unless required by law. If a deduction or withholding is so required, then the Customer agrees to pay such additional amount as to ensure that the net amount received and retained by ("BX") and ("NCM") equals the full amount that ("BX") and ("NCM") would have received had the deduction or withholding not been required.

4.3 The Customer authorizes ("BX") and ("NCM") or a third party payment processor to charge all sums for the orders Customer enters into, including all applicable taxes; bank fees or any other taxes, to the payment method specified in Customer’s account. If Customer pays any fees with a credit card, a third party payment processor may seek pre-authorization of Customer’s credit card account prior to purchase to verify that the credit card is valid and has the necessary funds or credit available to cover the purchase.

4.4 In the event that ("BX") and ("NCM") has not received payment of any Fees in accordance with the payment terms set forth in the applicable Statement of Order, then without prejudice to any other rights and remedies of ("BX") and ("NCM"). ("BX") and ("NCM"): (a) may, without liability to Customer, disable access to all or part of the Services and shall be under no obligation to provide any or all of the Services while the payment(s) concerned remains unpaid; and (b) charge Customer the greater of 5% interest per month or the maximum interest permitted by law on any unpaid amount payable by the Customer under those GTC from the date it falls due until payment is actually received by ("BX") and ("NCM"), and Customer will be liable for all third-party collection costs, and (c) terminate the Agreement with immediate effect and may initiate the legal proceedings against the Customer.​

4.5 The paid Services may include automatically recurring payments for periodic charges (“Subscription”). The price, term, and restrictions of any Subscription will be set forth in an applicable Statement of Order. If Customer activates a Subscription, Customer authorizes ("BX") and ("NCM") to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or Customer’s account, all accrued sums on the payment due date for the accrued sums. The Subscription will continue unless and until Customer decides not to renew the Subscription or ("BX") and ("NCM") terminates it.

4.6 If monthly contributions have been agreed and the customer is in arrears with payment of an amount corresponding to the sum of two total monthly contributions, ("BX") and ("NCM") is entitled to terminate the contract extraordinarily for good cause. In this case, ("BX") and ("NCM") is entitled to demand further compensation in accordance with the statutory provisions.

4.7 ("BX") and ("NCM") reserves the right to determine pricing for the Services. ("BX") and ("NCM") may change the fees for any feature of the Services, including additional fees or charges. ("BX") and ("NCM") may, at its sole discretion, make promotional offers with different features and different pricing to any ("BX") and ("NCM")’s customers. Such promotional offers, unless made to the Customer, will not apply to the Customer’s offer or those GTC.

4.8 In the event of an extraordinary termination for good cause, ("BX") and ("NCM") is entitled to demand further compensation in accordance with the statutory provisions, including but not limited to lost profits and costs incurred up to the termination date.

5. PUBLIC HOLIDAYS AND DAYS OFF

‍Customer understands that ("BX") and ("NCM"), its employees, contractors and third party service providers may be located in different jurisdictions that have different declared public holidays. The Customer acknowledges therefore that there may be delays in responses during Public Holidays and on ("BX") and ("NCM") Days Off and that ("BX") and ("NCM") shall not be liable in any way for such delays.

6. NO PARTICIPATION IN PROCEEDINGS UNDER THE CONSUMER DISPUTE SETTLEMENT ACT

‍The EU Commission has set up the following online dispute resolution platform for the out-of-court settlement of consumer disputes: www.ec.europa.eu/consumers/odr.("BX") and ("NCM") is not obliged and not willing to participate in a dispute resolution procedure before a consumer arbitration board in accordance with the Consumer Dispute Resolution Act (VSBG).

7. CONTRACTS WITH A MINIMUM CONTRACT TERM

7.1 The contract initially has the agreed minimum contract term (hereinafter: minimum term). Unless otherwise agreed, the contract term is extended to 6 months if the contract is not terminated by the customer or by ("BX") and ("NCM") in due time at the end of the minimum term.

7.2 Termination is subject to the provisions of Section 309 No. 9 of the German Civil Code (BGB) The Fair Consumer Contracts Act (19/26915). After the end of the minimum term, the contract can be terminated by either party at any time with one month's notice.

7.3 The customer has the right to terminate the contract extraordinarily if the contractor does not provide the contractually agreed services. In this case, the customer is not obliged to pay the remaining remuneration.

8. LIABILITY

8.1 ("BX") and ("NCM") assumes no liability for damages caused by the customer’s gross negligence or intent.

8.2 ("BX") and ("NCM") shall only be liable for damages caused by simple negligence if such damages arise from a breach of material contractual obligations.

8.3 Liability for simple negligence is limited to foreseeable damages typical for the type of contract, except in cases of personal injury or damage to health, where statutory liability provisions apply. ("BX") and ("NCM")'s total liability for damages under this agreement, except in cases of gross negligence or intent, shall not exceed the total amount paid by the customer under the contract in the twelve (12) months preceding the event giving rise to the liability.

8.4 The aforementioned limitations and exclusions of liability do not apply to claims arising from mandatory legal liability, such as under product liability laws or in cases of personal injury (including death).

9. GENERAL

9.1 The customer grants the agency the right to make changes and adjustments to its social media channels, insofar as these are necessary to fulfill the contractually agreed services.

9.2 The agency undertakes to provide the agreed services properly and on time, excluding services that were hindered by the client and therefore could not be provided on time.

9.3 The customer undertakes to provide the contractor with all necessary information and access to its social media channels that are required to fulfill the contractual services.

9.4 The customer has the right to view the changes made by the contractor on its social media channels at any time.

9.5 Communication shall take place exclusively via digital communication channels, including Email, Whatsapp, Instagram, Facebook Messenger, Slack, Microsoft Teams, and Hubspot.

9.6 The customer will receive feedback from Digital-NCM within 48 hours. If the customer takes longer than 48 hours to respond, the time of completion will be postponed by the same period. If ("BX") and ("NCM") does not complete the services stipulated in the agreed period, a "grace period" of 7 working days will be provided to complete the services.

9.7 Those GTC together with the related Statement of Order, constitutes the entire agreement between the parties governing Customer’s use of the Services. No terms other than those expressly set out herein are deemed to be implied herein. No amendment or variation of those GTC shall be effective or binding unless it is in writing and confirmed in writing or otherwise signed by the parties.

9.8 No failure or delay by a party to exercise any right or remedy provided under those GTC or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

9.9 Customer grants ("BX") and ("NCM") the right, during and after the the termination of the Services/Statement of Order/those GTC, for unlimited period of time to use: (a) Customer’s company name and logo as a reference for marketing or promotional purposes on the Website and in other promotional materials; (b) to disclose that Customer is a customer of ("BX") and ("NCM") to third parties and in the Website; and (c) to include on the Website Customer’s case studies, testimonials and other feedback regarding the Services.

9.10 In the event of any dispute, claim or controversy arising from or relating to those GTC, the parties hereto may use reasonable efforts to settle the same amicably. To this effect, they may consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties.In the event the parties do not reach an amicable resolution within a period of thirty (30) days from the date either party having raised such mediation request, either party may refer the dispute to arbitration in accordance with clause 9.11.

9.11 Those GTC with the related Statement of Order and any dispute arising hereunder or any claims, questions or differences shall be referred to and finally resolved by the International Commercial Arbitration Court under the European Arbitration Chamber (Belgium. Brussels, Avenue Louise. 146) according to the Rules of this ICAC, which, as a result of referring to it, is considered as the part of this clause. The number of arbitrators shall be 1 (one). The seat, or legal place, of arbitration shall be Brussels, Belgium. The language to be used in the arbitral proceedings shall be English. The governing law of the contract shall be the substantive law of Germany. The parties expressly exclude any application for setting aside the Arbitral Award”.horized User and/or or any Third Parties mentioned on those GTC.

10. MODIFICATION

‍10.1 . ("BX") and ("NCM") reserves the right in its sole discretion to modify and/or make changes to the terms of those GTC at any time by posting the updated version to the Website. If ("BX") and ("NCM") makes any material change, ("BX") and ("NCM") will notify the Customer by email notice sent to the email address specified in the Customer’s account or by posting a notice through the Services. Modifications will become effective on the day they are posted unless stated otherwise. The Customer’s continued use of the Services after changes become effective shall mean the Customer accepts those changes. Any revised terms shall supersede all previous terms.

‍10.2 Modifications to Website, ("BX") and ("NCM") may, in its sole discretion, modify the Website from time to time, which modifications can include, but not be limited to, the removal, addition, or modification of features within the Website, graphic and stylistic modifications, and integration with third-party products or services.

‍11. Invalidity of Individual Provisions

‍Should one or more provisions of the membership contract be or become invalid, this shall not affect the validity of the contract or its remaining provisions. It shall be amended to the minimum extent necessary or deleted, but shall not affect the validity and enforceability of the rest of those GTC.