Social25

SOCIAL25​ ​TERMS​ ​&​ ​CONDITIONS\r<BR>These Social25 Terms & Conditions (hereinafter: ‘ Terms’), together with the Agreement and other appendixes thereto,\r<BR>comprise the entire terms and conditions under which Social25 will provide Customer with Services by Social25 and its\r<BR>Suppliers.\r<BR>Article​ ​1:​ ​Definitions\r<BR>1.1 The following notions in these Terms and related documents will have the following meaning:\r<BR>Agreement: any agreement and/or legal relationship(s) of any nature between Parties in respect of the\r<BR>provision of Services, any amendment thereof or supplement thereto, as well as all acts related to performance\r<BR>of the Agreement(s);\r<BR>Application: the Social25 application for providing secure simultaneous servicing on multiple real time chat\r<BR>messaging channels, allowing multiple agents to work on the same message thread, made available or to be\r<BR>made available in any way by Social25 to Customer, in any way cloud based via the internet as Software as a\r<BR>Service (SaaS);\r<BR>Business Day: a calendar day from 08:30 and 17.00 Central European Time (CET), except for weekends and\r<BR>official national holidays in the Netherlands.\r<BR>Customer: any person or legal entity with whom Social25 wishes to enter into, or has entered into a legal\r<BR>relationship;\r<BR>Customer Order Form : a written or online Social25 service order form concerning certain Services, as entered\r<BR>into between Customer and Social25 at any time, as part of the Agreement;\r<BR>Fee: the fee(s) due and owed by Customer to Social25 as consideration arising from the Services and relating\r<BR>to the Agreement;\r<BR>Party or Parties: Customer or Social25, or Customer and Social25, respectively;\r<BR>Services: making available of the Application services, if and to the extent provided by Social25;\r<BR>Social25: Social25 is a trade name of Apps25 B.V., based in the Netherlands, with which Customer has entered\r<BR>or is entering into an Agreement;\r<BR>Supplier: a supplier, subcontractor and/or licensor of Social25 with which Social25 has a legal relationship;\r<BR>Trial Period: a definite term of maximum thirty (30) calendar days for purpose of trial and internal evaluation by\r<BR>Customer of the Services, which term is not renewable;\r<BR>User: all authorized persons of Customer to use the Services and/or persons registered as online users, and\r<BR>which have been confirmed by e-mail by Social25.\r<BR>Article​ ​2:​ ​Agreement\r<BR>2.1 The Agreement is effective as per the Effective Date as set in applicable Customer Order Form. The Agreement\r<BR>shall be entered into for a fixed time and shall have an initial duration of one (1) year from Effective Date.\r<BR>2.2 Thereafter, the Agreement is renewed automatically, each time for a period of one (1) year, or as indicated\r<BR>otherwise in the applicable Customer Order Form, unless the Agreement shall be terminated by either Party by\r<BR>registered letter and taking into account a term of notice of at least three (3) months before the end of a\r<BR>current contractual period.\r<BR>Article​ ​3:​ ​Trial\r<BR>3.1 To the extent Social25 grants Customer a free trial of the Services prior to entering into a Customer Order\r<BR>Form, this right to trial will be for the Trial Period, free of charge, and for internal evaluation, non-production\r<BR>purposes only (‘Trial’).\r<BR>3.2 Any Trial is provided and granted ‘as is’, without any warranty of any type, either express or implied, including\r<BR>without limitation, any warranty of merchantability or fitness for a particular purpose or use, patent,\r<BR>infringement, title or otherwise, and Customer hereby disclaims any and all warranties. Furthermore, Social25\r<BR>shall not be liable to Customer nor shall Customer have any remedy against Social25 for any loss, damage or\r<BR>expense of any kind, including but not limited to, consequential, special, incidental or punitive damages or loss\r<BR>of profits, lost data, or for damages based upon strict or absolute liability in tort, damages in contract or by\r<BR>statute related to the Services, and Customer agrees to defend Social25, indemnify and hold Social25 harmless\r<BR>Social25​ ​Terms​ ​&​ ​Conditions​ ​v2017.0.1 \r<BR>for any and all such damages or claims of third parties related to the Services.\r<BR>3.3 Any data of Customer that it has uploaded, imported or otherwise inserted into the Services during the Trial\r<BR>shall be lost permanently upon the end date of the Trial Period, unless Customer has requested in writing of a\r<BR>copy of such data before such end date, or unless Parties have timely entered into a relevant Agreement and\r<BR>Customer Order Form.\r<BR>Article​ ​4:​ ​Social25​ ​Application\r<BR>4.1 From the Effective Date Social25 will commence provision of the Services in accordance with the applicable\r<BR>Customer Order Form and other content of the Agreement. Social25 shall make commercially reasonable efforts\r<BR>to provide the Services in accordance with the Agreement. The Services shall be considered to be accepted\r<BR>unconditionally on Effective Date.\r<BR>4.2 During the term of this Agreement, Social25 shall make commercially reasonable efforts to provide the\r<BR>Services. Social25 aims at achieving availability of Services of twenty-four (24) hours a day, seven (7) days a\r<BR>week, except the planned (maintenance and related) ‘down-time’ of the Services. Any planned maintenance by\r<BR>Social25 will where possible be announced by Social25, seven (7) hours before the time of such maintenance,\r<BR>and where possible, take place outside of normal Business Days. However, Social25 is entitled to perform any\r<BR>necessary maintenance at any time at the discretion of Social25. However, without prejudice to actual\r<BR>availability, Customer’s obligation to pay the Fees shall remain in full force.\r<BR>4.3 The warranties set forth in Articles 4.1 and 4.2 are the only warranties made by Social25. Social25 expressly\r<BR>disclaims and Customer hereby expressly waives, all other warranties, express or implied, including, without\r<BR>limitation, warranties of merchantability and fitness for a particular purpose. Social25 does not warrant and\r<BR>specifically disclaims any representations that the Services shall meet Customer’s requirements or that the\r<BR>operation of the Services and/or its use shall be uninterrupted or error-free, or that defects in the Services, if\r<BR>any, shall be corrected. Social25’s limited warranty set forth herein is in lieu of all liabilities or obligations of\r<BR>Social25 for damages arising out of or in connection with the use of the Services or related services. Except for\r<BR>the abovementioned warranties, the entire risk as to the use, quality and performance of the Services are with\r<BR>Customer, who explicitly acknowledges that the Services are ‘as is’. Any use of the Services by or on behalf of\r<BR>Customer and any (direct and indirect) consequences thereof are at the expense and risk of Customer.\r<BR>4.4 Social25 may make changes to the content and scope of the Services due to changes in the relevant laws\r<BR>and/or on the basis of directives issued by other authorized bodies. Social25 shall inform Customer about this\r<BR>as soon as possible and the costs of the changes in the procedures are for Customer\'s account. In such case\r<BR>Customer can terminate the Agreement, in writing, on the date when the change takes effect, unless such\r<BR>change is related to changes in the relevant laws or directives issued by other competent bodies.\r<BR>4.5 Social25 shall provide Customer with the required user name(s) and password(s) to get access to the Services.\r<BR>The username and the password are strictly personal. If a certain User does not use his/her username and\r<BR>password of the Services any more, Customer shall request in written to Social25 to remove the User and\r<BR>transfer the username and password(s) to a third party. It is not possible to reduce the number of Users or\r<BR>share accounts, during the term of this Agreement. Social25 is entitled to change the username(s) and/or\r<BR>passwords. Customer treats the use name(s) and password(s) confidentially and carefully and shall only\r<BR>disclose these to authorized persons. Social25 is not responsible for damages and costs that are a result of loss\r<BR>or theft of username(s) and/or password(s), unless it is a direct result of an action or omission by Social25.\r<BR>Article​ ​5:​ ​Customer​ ​Obligations\r<BR>5.1 Customer is responsible for the required communication, data, backup and storage facilities for the use of the\r<BR>Services, including the internet, as well as where it concerns the choice of resources and their timely and\r<BR>complete availability. Social25 is only obliged to make back-ups if this has been agreed upon between the\r<BR>Parties expressly and in writing in an Customer Order Form.\r<BR>5.2 Customer is solely responsible for the use of the Service and user accounts provided by Social25, maintaining\r<BR>due care and confidentiality in respect of access thereto and use thereof, and for its configuration of the\r<BR>Service. Customer has the obligation to only use the Services within the boundaries of the terms of the\r<BR>Agreement, these Terms and the applicable laws. Furthermore, Customer is solely responsible for testing,\r<BR>installing, use and non-use of any application or module made available by either Heroku.com, Salesforce.com\r<BR>and/or any other third party, through the Salesforce AppExchange or otherwise.\r<BR>Article​ ​6:​ ​Fee​ ​&​ ​Payment\r<BR>6.1 Customer shall owe Fees for the Services, which will be payable periodically for the relevant Services, according\r<BR>to the rates and prices established and annually updated by Social25, which shall be expressed in EUR (Euro).\r<BR>All rates, prices and other Fee(s) are net and shall be exclusive of VAT as well as (withholding and other) taxes\r<BR>and levies due under the applicable law.\r<BR>Social25​ ​Terms​ ​&​ ​Conditions​ ​v2017.0.1 \r<BR>6.2 The payments shall be paid by credit card, unless otherwise agreed in written between Parties. Customer\r<BR>authorizes Social25 to use the credit card information to pay all invoices within thirty (30) days after the date of\r<BR>invoice, or in another frequency model, if this is explicitly agreed in writing. Payments shall be due and payable\r<BR>each year in advance. Payment shall take place without any set-off, deduction or suspension. Any objections to\r<BR>any invoice or Fee invoiced shall be made known to Social25 in a timely manner in writing, which is before the\r<BR>due date of the invoice in question.\r<BR>6.3 Social25 is authorized to adjust the applicable Fee(s) per contract year within reasonable limits. If such an\r<BR>adjustment concerns an increase that is higher than the index figure for CAO wages (per hour including special\r<BR>remunerations) category Private businesses, as published by the Central Bureau for Statistics ( www.cbs.nl),\r<BR>Social25 will notify the increase to Customer not later than two (2) months prior to the expiry of the initial\r<BR>duration (or any extension thereof in accordance with Article 2.2) to take effect from commencement of any\r<BR>extension of the Initial Duration in accordance with the applicable Customer Order Form.\r<BR>6.4 If Customer does not pay the amounts due within the period as referred to in Article 6.2, then Customer shall\r<BR>be in default. In the event of default (i) Customer shall be due and pay to Social25 the amount due\r<BR>accumulated with interest of at least one and a half percent per month, as well as debt collection costs, and (ii)\r<BR>Social25 (in addition to the other rights to which it is entitled under the Agreement) will be authorized to\r<BR>suspend the Services or part thereof after prior notification by Social25.\r<BR>Article​ ​7:​ ​Confidentiality\r<BR>7.1 Both Social25 and Customer will treat all data and information that each obtains from the other Party with\r<BR>respect to the Services as well as commercial, strategic, technical data, knowledge and/or other information\r<BR>connected with that other Party as strictly confidential. For the avoidance of doubt, any data or information\r<BR>uploaded by Customer in the SaaS is considered confidential information of Customer. Also, each Party will not\r<BR>make announcements about this to third parties, except for announcements set forth in Article 7.3.\r<BR>7.2 It is only allowed to deviate from the provisions in Article 7.1 if (i) the relevant deviation has been explicitly\r<BR>provided for in the Agreement, (ii) the related information was already generally known without any breach of\r<BR>confidence by a Party or any third party before the Agreement was realized, (iii) the prior written permission of\r<BR>the Party concerned was obtained, or (iv) the related information must be made public to satisfy a mandatory\r<BR>decision to that extent of a legal authority, in which case the Party concerned will inform the other Party in\r<BR>advance.\r<BR>7.3 Each Party may divulge that Customer has entered into the Agreement and Social25 may describe its activities\r<BR>on account of the Agreement in its marketing materials in general, non-confidential terms. Furthermore,\r<BR>Customer agrees that after the Agreement has been signed, Social25 may issue a press release.\r<BR>Article​ ​8:​ ​Intellectual​ ​Property​ ​Rights\r<BR>8.1 All rights of intellectual property of Customer to data of Customer are and will remain the property of Customer.\r<BR>Social25 and its Suppliers are the exclusive owner of all rights and titles to and of all segments of the Services,\r<BR>including the intellectual property rights, the functionality thereof, and data therein to the extent such are not\r<BR>Customer data. Customer shall acquire no rights whatsoever than explicitly described herein and the\r<BR>Agreement.\r<BR>8.2 Social25 holds Customer indemnified against any claims based on the substantiated allegation of a third party\r<BR>that the Services infringe intellectual property rights valid in the Netherlands and other member states of the\r<BR>European Union. In such case, Customer shall inform Social25 thereof immediately in writing, in detail, and\r<BR>further offer its cooperation to Social25 in, but not limited to, legal proceedings and/or negotiations. In the case\r<BR>of aforementioned claims by third parties Social25 may at its discretion replace or amend the Services or any\r<BR>part thereof, or dissolve the Agreement in part or in whole, in which latter case Social25 will return Fees paid by\r<BR>Customer for Services not yet provided on a pro-rated basis. Social25 is not responsible for any settlement out\r<BR>of court without a written permission of Social25.\r<BR>Article​ ​9:​ ​Data​ ​Processing\r<BR>9.1 During the terms of the Agreement, Customer is responsible for the (personal) data made available by\r<BR>Customer in the Services, and for its use within the normal business of Social25. Processing of personal data by\r<BR>Customer, Social25 or third parties is limited to the legal conditions or mandatory instruction by applicable law\r<BR>and within the purpose of the Agreement. Each Party takes commercially reasonable care of the technical and\r<BR>organizational measures for the protection of the personal data against loss or any other unlawful processing.\r<BR>9.2 Social25 does not give any warranties with regard to content or data, including but not limited to reliability and\r<BR>completeness. Customer understands that the technical processing, transmission and storage of Customer’s\r<BR>data is fundamentally necessary in order to run the Services. Customer expressly consents to Social25 and its\r<BR>Suppliers processing and storage of Customer’s electronic communications and/or process data, and Customer\r<BR>Social25​ ​Terms​ ​&​ ​Conditions​ ​v2017.0.1 \r<BR>acknowledges and understands that this will involve SSL transmission over the internet and processing within\r<BR>the Application and/or platform.\r<BR>9.3 The data and information of Customer are and will remain the property of Customer. Customer is aware that\r<BR>the data processing and storage is managed by Supplier Heroku.com is responsible for ensuring that it is\r<BR>allowed to undertake cross-border data-transfer. Social25 may be required by mandatory law to provide certain\r<BR>(personal) data, also but not limited to Article 7.2(iv). If this is the case, Customer will be informed by Social25\r<BR>insofar as the law permits.\r<BR>9.4 If Social25 processes any personal data on Customer’s behalf when performing its obligations under this\r<BR>Agreement, Parties hereby agree that Customer shall be the data controller and Social25 shall be a data\r<BR>processor in any such case: (a) Customer shall ensure that Customer is entitled to transfer the relevant\r<BR>personal data to Social25 so that Social25 may lawfully use, process and transfer the personal data in\r<BR>accordance with this Agreement on Customer\'s behalf; and (b) Customer shall ensure that the relevant third\r<BR>Parties have given their consent to, such use, processing, and transfer of all personal data supplied by\r<BR>Customer as required by all applicable data protection legislation.\r<BR>9.5 Each Party shall arrange for its own appropriate technical and organizational measures to protect the personal\r<BR>data from loss, loss of integrity or from any form of unlawful processing. Social25 will maintain commercially\r<BR>reasonable efforts to protection, confidentiality and integrity of processed data under the relevant Agreement.\r<BR>9.6 In case Social25 discovers a security breach that may adversely affect the protection of personal data\r<BR>processed by Social25 on behalf of Customer, Social25 will notify Customer, to the extent permitted by law, as\r<BR>soon as reasonably possible. Social25 will cooperate with Customer on the investigation of the personal data\r<BR>breach. Customer shall be responsible to notify the relevant authority in case of a personal data breach.\r<BR>9.7 Upon termination for cause, Customer’s right to access or use the Services immediately ceases, and Social25\r<BR>shall have no obligation to maintain any data. However, prior to the date of termination, Customer is entitled to\r<BR>download any of its data then available, which Social25 will make available in generally available format if and\r<BR>to the extent used by Social25 at that time. Any modifications to the data of Customer, made outside the\r<BR>Application and/or platform will not be captured in Customer’s data as returned and the return of any such\r<BR>modified data shall be the responsibility of Customer.\r<BR>Article​ ​10:​ ​Liability\r<BR>10.1 Except for breaches of the Agreement due to intent or gross negligence of the management of Social25,\r<BR>Social25 will not be liable for any damage that Customer suffers by any acting and/or refraining from acting of\r<BR>Social25, except for any direct damage on account of an attributable shortcoming of Social25.\r<BR>10.2 Direct damage will be understood to mean in this Article damage, except indirect damage such as (amongst\r<BR>others) consequential damage, lost profit, missed savings, damage through business stagnation and damage on\r<BR>account of corrupted or lost data. In any event, Social25’s aggregate liability for any reason and upon any\r<BR>cause of action or claim, including, without limitation, Social25’s obligation to indemnify and hold harmless\r<BR>under the agreement, shall be limited to the amount equal to the Service Fees paid to Social25 by Customer\r<BR>hereunder in the six (6) months period prior to the claim. If and insofar any damage is caused because Social25\r<BR>is culpably in default on account of intent or gross negligence of the management of Social25 in its\r<BR>responsibilities, Social25 will be maximally liable for an amount of EUR 500.000 (five hundred thousand Euro)\r<BR>per event, at which a series of connected events will apply as one event. The limitations set above apply to all\r<BR>causes of action or claims in the aggregate, including, without limitation, breach of contract, breach of\r<BR>warranty, indemnity, negligence, strict liability, misrepresentations, and other torts.\r<BR>10.3 A right of Customer to compensation will only arise if Customer has informed Social25 accordingly in writing\r<BR>within thirty (30) days or immediately after Customer could discover in reason the arising thereof.\r<BR>10.4 Social25 will not be liable for entire or partial non-observance of any obligations or partial non-observance of\r<BR>and/or on behalf of Social25 on account of the Agreement, if the non-observance or other delay or failure to\r<BR>perform hereunder is due to: (a) Customer’s delay in supplying or in failing to supply approvals, information,\r<BR>documentation, goods or services reasonably requested by or necessary for Social25 to execute the Agreement,\r<BR>or (b) causes beyond the control of Social25, including, but not limited to, acts of God, acts of any government\r<BR>or political division of government, fires, floods, epidemics, quarantine restrictions, strikes, under which any\r<BR>non-attributable shortcoming of Supplier(s) of Social25 are included.\r<BR>Article​ ​11:​ ​Termination\r<BR>11.1 Neither Party is entitled to terminate the Agreement during the then current Term, except if explicitly set forth\r<BR>Articles 11.2 or 11.3.\r<BR>11.2 Each Party will be entitled to terminate the Agreement with immediate effect, without any further declaration of\r<BR>default and without any prior legal intervention, by registered letter, entirely or partially, if the other Party\r<BR>applies for bankruptcy or suspension of payments or is declared bankrupt.\r<BR>Social25​ ​Terms​ ​&​ ​Conditions​ ​v2017.0.1 \r<BR>11.3 The Agreement can be terminated by Social25 with immediate effect, without any further declaration of default\r<BR>to Customer and without any legal intervention, entirely or partially, for any breach including, without\r<BR>limitation, Customer’s non-payment of Fees, infringement of confidentiality or data obligations, Social25’s\r<BR>intellectual property rights, or (anticipated) breach of mandatory law, after fourteen (14) days have passed\r<BR>after the date of the letter in which Customer is notified of default or breach, this without prejudice to other\r<BR>rights Social25 may be entitled to.\r<BR>11.4 Any term and/or condition of this Agreement, which by their nature extend beyond its (and any) termination\r<BR>shall survive termination of any kind and remain in effect.\r<BR>Article​ ​12:​ ​Miscellaneous\r<BR>12.1 Modifications and amendments which refers to this Agreement is an integral part of this Agreement. This\r<BR>Agreement shall only be amended by written consent of both Parties. This Agreement shall be binding upon and\r<BR>inure to the benefit of the Parties and their respective legal representatives, successors and assigns. Each Party\r<BR>herewith for itself declares and agrees that any applicability of any general terms and conditions howsoever of\r<BR>either Party not explicitly mentioned in this Agreement are hereby explicitly excluded.\r<BR>12.3 Each Party declares towards the other Party that for the duration of the Agreement and for one (1) year after\r<BR>termination (irrespective of the reason of termination and/or which Party has proceeded to termination) that it\r<BR>will not directly or indirectly (either for itself or on the behalf of others) employ or offer to employ or contract\r<BR>personnel or other employees of the other Party who were involved in carrying out the Agreement or have them\r<BR>work otherwise for it, unless the prior explicit written permission of that other Party has first been obtained. In\r<BR>the event of violation of the provisions herein, the infringing Party will owe to the other Party amongst others a\r<BR>penalty immediately due and payable of one (1) years’ gross annual salary per personnel member or employee\r<BR>in question, without prejudice to the right of that other Party to recover its full damage from the infringing\r<BR>Party.\r<BR>12.4 The terms of a Supplier will apply to the related services of the Supplier(s), replacing the provisions herein that\r<BR>deviate from those Supplier terms. Customer accepts the terms concerned of those Suppliers, including without\r<BR>limitation the Heroku Service Agreement of Heroku.com, which terms will be ready for inspection by Customer\r<BR>at Social25 and which Social25 will send on request of Customer, except insofar those have already been\r<BR>delivered. If and insofar the terms concerned of that Supplier are deemed not to apply in the relation between\r<BR>Customer and Social25 for whatever reason or are declared not applicable, the provisions in these Terms will\r<BR>apply with the exception of the two previous sentences.\r<BR>12.5 If one of the articles in this Agreement are declared null and void or becomes null and void, the other terms and\r<BR>conditions of this Agreement shall remain in force. In that case Parties shall have agreed on a new article to\r<BR>replace the non-valid articles, where the purpose and scope of the non-valid clause are taken into account as\r<BR>far possible.\r<BR>12.6 Social25 is entitled to subcontract or otherwise assign the rights and/or obligations arising from the Agreement.\r<BR>Customer is not permitted to assign the Agreement and/or any of its rights or obligations in this matter, without\r<BR>express prior written permission from Social25.\r<BR>12.7 These Terms, the Agreement and related matters hereto shall be governed by the laws of the Netherlands,\r<BR>without giving effect to the principles of conflict of laws. Without prejudice to the right of each Party to apply for\r<BR>disposition by summary proceedings, all disputes arising in connection with the Agreement, these Terms and\r<BR>related matters (‘ Disputes’), and which cannot be solved through amicable negotiations, shall be exclusively\r<BR>and finally settled (A) by the competent court of Amsterdam, the Netherlands, if both Parties hereto are based\r<BR>in the European Union, or (B) if one of the Parties is based outside the European Union, by binding arbitration\r<BR>administered by the World Intellectual Property Organization (‘ WIPO’), pursuant to the Expedited Rules of WIPO\r<BR>in effect at the time of submission. Such arbitration shall be held in Amsterdam, the Netherlands, before a\r<BR>single neutral arbitrator with ten (10) years’ experience concerning commercial agreements. The official\r<BR>language of the arbitration shall be English, and all evidence shall be submitted in English, or in a certified\r<BR>English translation, except when Customer is based in The Netherlands, in which case the official language of\r<BR>the arbitration shall be Dutch and evidence may be submitted in both Dutch and English. The arbitrator’s award\r<BR>shall be a final and binding determination of all Disputes and related claims and counterclaims that are\r<BR>presented to the arbitrator.\r<BR>12.8 Headings have been inserted into the Agreement for convenience only and shall not affect the interpretation of\r<BR>the Agreement.\r<BR>v2017.0.1\r<BR>Social25​ ​Terms​ ​&​ ​Conditions​ ​v2017.0.1