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