SPEAKAP GENERAL TERMS & CONDITIONS
Article 1. Definitions
Annexes: all Annexes to the Agreement that form an integral part thereof, including but not limited to these General Terms & Conditions;
Data: all data, content and information uploaded to the Service by the Customer, User(s) and/or third parties, with the exception of Speakap and/or such third parties as it may indicate;
Service: the provision of the Software and Maintenance;
Error: a significant failure by the Software to comply with the specifications, as described on the Website. There is only an error if the Customer can prove this, if it is replicable and if the Customer has immediately informed Speakap of its existence;
User(s): person(s) to whom the Customer offers the facility of using the Service on the basis of the Agreement;
General Terms & Conditions: these General Terms & Conditions of Speakap for the Customer;
Helpdesk: Speakap’s helpdesk that can be contacted by the Customer and/or User(s) between 9 am and 5 pm on working days with questions about the Service and/or Software;
Intellectual Property Rights: all rights of intellectual property and associated rights such as copyright, trademark rights, patent rights, design rights, trade name rights, database rights and related rights, as well as all rights to know-how and any performance on a par with such rights;
Customer: a business that (i) has entered into an Agreement with Speakap via the Website, or (ii) has concluded a written Agreement with Speakap for the Service;
Emergency: a situation in which the availability and/or the use of the Software will become impossible, either entirely or for critical elements, if Speakap does not take immediate action;
Agreement: the agreement that Speakap enters into with the Customer for the use of the Service, concluded by means of a collaboration agreement or via the Website, including all Annexes;
Maintenance: the maintenance undertaken by Speakap in relation to the Software, including support via the Helpdesk;
Parties: Speakap and the Customer, collectively;
Privacy Statement: Speakap’s privacy statement, which can be consulted on the Website;
Software: the internal social network application developed by Speakap, including updates;
Third-Party Software: software developed by third parties and that works with Speakap, including open source software;
Speakap: Speakap B.V., a private limited company with its registered office at Pedro de Medinlaan 5, (1085 XK) Amsterdam and registered with the Chamber of Commerce under number 51753847;
Website: Speakap’s website, www.speakap.com, as well as all underlying web pages.
Article 2. Applicability
2.1. These General Terms & Conditions apply to all legal acts by Speakap, all legal relationships between the Parties, all offers and Agreements between the Parties and the use of the Service and/or the Software.
2.2. Any deviations from or additions to these General Terms & Conditions will only be valid if agreed in writing by the Parties.
2.3. The applicability of any procurement or other terms and conditions of the Customer is expressly excluded.
2.4. If any provisions within these General Terms & Conditions is void or voidable, or is or becomes fully or partially invalid for any other reason, the remaining provisions of these General Terms & Conditions will nevertheless remain in full force and effect. Speakap shall replace the invalid provision with a provision that is valid and whose legal consequences coincide as closely as possible with those of the invalid provision, having due regard to the contents and purport of these General Terms & Conditions.
Article 3. User right
3.1. On condition that the Customer has fulfilled its payment obligations, Speakap hereby grants to the Customer a non-exclusive, non-assignable and non-sub-licensable restricted licence to use the Software in accordance with the provisions of the Agreement and these General Terms & Conditions.
3.2. The user right extends only to the object code of the Software and does not extend to the source code of the Software. The Software source code is not made available to the Customer. The Customer will never be provided with a physical storage medium containing a copy of the Software.
3.3. The Customer will itself configure, set the parameters for and tune the Software. Speakap is under no obligation to undertake data conversion.
3.4. The Customer may only use the Service in and for its own business or organisation and exclusively for the intended purpose. The Customer is fully responsible for the acts and omissions of its Users when using the Service. The Customer indemnifies Speakap against claims by its Users in connection with all losses and costs arising from and/or related to their use of the Service.
3.5. The Customer is not entitled to disclose to the public, duplicate, alter, decompile and/or reverse engineer the Service, unless compelled to do so by mandatory law.
3.6. The Customer is not permitted to sell, lease, dispose of or grant restricted rights to the Service or make it available to any third party in any other way or for any purpose whatsoever. Nor shall the Customer allow any third party to gain access to the Service, remotely or otherwise.
3.7. In the context of the Service, the Customer and every one of the Customer's Users shall acquire a username and a password. The Customer is responsible for keeping its own username and password secret and also for its Users keeping their usernames and passwords secret. The Customer is therefore responsible for all use made of the Service via its own username and password and any usernames and passwords used by one or more of its Users. Speakap is entitled to assume that the Customer is also actually the person who logs in under the Customer's username.
3.8. As soon as the Customer knows or has reason to suspect that the password and/or username has/have become available to unauthorised persons, the Customer must notify Speakap of this immediately, without prejudice to the Customer's own obligation to take immediate effective measures, such as for instance changing the password.
Article 4. Service Provision
4.1. Speakap shall endeavour to provide the Service with due care to the best of its ability. The Service is provided on the basis of a best efforts obligation.
4.2. The Customer determines what Data is stored using the Service and how its Users can use the Service. Speakap has no knowledge of that Data or how the Customer and/or its Users use the Services. The Customer will accordingly be responsible for ensuring that the Data and the use of the service are lawful and that no third-party rights are infringed. Speakap is not liable for Data stored with the assistance of the Service or for use made of the Service by the Customer and/or its Users. The Customer indemnifies Speakap against claims by third parties, including but not confined to the Customer's own Users, that are based on the assertion that the use of the Service by the Customer and/or the Data stored with the assistance of Service is unlawful.
4.3. Speakap may introduce changes to the content or scope of the Service. Speakap will notify the Customer of this as promptly as possible. Unless expressly agreed otherwise in writing, Speakap is not obliged to maintain, amend or add to any properties or functionalities of the Service or the Software that are specified uniquely for the Customer.
4.4. The Customer warrants the accuracy and completeness of all information supplied by it or on its behalf to Speakap.
Article 5. Maintenance
5.1. Speakap does not warrant that the Service and/or the Software to be provided to and kept available for the Customer will operate without error or interruption.
5.2. The Customer may contact the Helpdesk in the manner described on the Website if it has any questions regarding Services and/or the Software. The Helpdesk will endeavour to answer the Customer's questions within a reasonable period, to the best of its ability.
5.3. Speakap cannot guarantee that Errors will not occur or that they will be resolved. Speakap will, however, endeavour to rectify any Errors in the Service as quickly as possible.
5.4. Speakap is never obliged to rectify Errors if the situation pertains to user errors or inexpert use by the Customer and/or Users, use in breach of the Agreement or these General Terms & Conditions or any other cause not attributable to Speakap. Nonetheless, if Speakap proceeds to rectify an Error, it shall be entitled to charge the costs of doing so to the Customer on the basis of Speakap’s then applicable hourly rate.
5.5. Speakap is always entitled to introduce temporary solutions or software workarounds or problem-solving constraints in the Software. Speakap is never obliged to repair corrupted or lost data.
5.6. Speakap is not responsible for the purchase and/or proper operation of the Customer's and/or Users' infrastructure. Speakap is not liable for damage or costs resulting from transmission errors, disruptions or the non-availability of computer, data or telecommunication facilities, including the internet.
5.7. Speakap may (temporarily) suspend the operation of the Service fully or partially and/or restrict the use of it if it considers this to be necessary, for instance for Maintenance. If Speakap considers this is necessary, it will notify the Customer accordingly, in advance. If an Emergency requires the Service to be suspended immediately or its use to be restricted, Speakap will notify the Customer of this as soon as is reasonably possible.
Article 6. Security
6.1. Speakap attaches major importance to the security of its Services and the protection of the Data. For this purpose, Speakap uses extensive security systems and modern technologies to protect the Services, the Software and the Data.
6.2. Logging into the Service is always by way of a secure connection and passwords are stored in encrypted form on the servers.
6.3. The Data is automatically copied on a regular basis, in encrypted format, to another datacentre based at a different location.
6.4. Speakap uses a modern datacentre that has taken the requisite technical and organisational steps (which also cover access) to safeguard the security of the servers.
Article 7. Intellectual Property Rights
7.1. All Intellectual Property Rights in relation to the Services and/or Software, excluding the Data, remain vested exclusively in Speakap or its licensors. The Customer is not permitted to delete or alter any indication about the confidential nature or Intellectual Property Rights from the Service, the Software, files or materials.
7.2. Speakap may introduce, directly or indirectly, technical measures to protect the Service, the Software, files or materials in connection with an agreed restriction of content or the duration of the licence. The Customer is prohibited from deleting or circumventing any such technical measure, either directly or indirectly.
7.3. The Customer is not permitted to introduce, directly or indirectly, alterations or additions to the Software, files or materials provided by Speakap, nor to allow third parties to carry out maintenance or repairs on them.
7.4. The Customer hereby grants to Speakap the right to use the Customer's name and logo, if any, in a range of materials, including but not confined to advertising and promotional materials, pitches and on the Website.
Article 8. Third-Party Software
8.1. The Service uses Third-Party Software. The use of Third-Party Software is subject to the (licensing) terms of those third parties, which take precedence over any provisions to the contrary in these General Terms & Conditions. The Customer accepts the user conditions in relation to the relevant Third-Party Software. The applicable conditions (including licensing conditions) of the parties may be consulted on the Website.
8.2. If and to the extent that these third-party conditions are for any reason deemed not to apply in the relationship between the Customer and that third party, or are declared not to be applicable, the provisions in these General Terms & Conditions will apply in full.
8.3. It may be the case that the Service contains applications, content and services from third parties and/or links to third-party websites. The inclusion or presence of third-party applications, content and/or services within the Software and the possibility of linking third-party applications, content and/or services to the Service does not imply that Speakap has approved or checked these third-party applications, content and/or services. Speakap is not liable for the content and operating methods of third-party applications, content and/or services or for any use made of these by Users. The use of third-party applications, content and/or services may be subject to general terms and conditions and/or privacy statements of those parties.
8.4. The Customer indemnifies Speakap against all losses and costs arising from and/or relating to claims by third parties, on any basis whatsoever, in connection with the Customer's or its Users' use of the Third-Party Software, including any act by the Customer in breach of the applicable user terms relating to the Third-Party Software or any breach of Intellectual Property Rights in relation to the Third-Party Software.
Article 9. Prices and payment
9.1. Prices are dependent on the selected Service and the number of Users involved. All amounts relating to the Service are due monthly in advance, unless otherwise agreed between the Parties. Payments must be made within 30 days after the invoice date unless agreed otherwise in writing or unless stated otherwise on the invoice.
9.2. All prices exclude VAT and other government levies and taxes. Unless stated otherwise, all prices are expressed in euro and the Customer must make all payments in euro.
9.3. During the term of an Agreement, Speakap is entitled to increase the prices for its Services each year, effective from 1 January, in accordance with the price index of the previous calendar year as published by Statistics Netherlands ('All households' consumer price index) plus a maximum of 15%. Speakap is entitled to apply the price increase at a later date.
9.4. Apart from the circumstances specified in Article 9.3, Speakap is also entitled to increase the prices for its Services in the event of any increase in the costs incurred by Speakap or of a change in the functionalities of the Service. Speakap will notify any such price increase no later than two (2) months before the date on which it comes into effect.
9.5. If Speakap has not received (complete) payment by the end of the period specified in Article 9.1, the Customer shall immediately be in default without any prior formal demand, warning and/or default notice being required. Interest at the statutory commercial rate is due from the point when the Customer goes into default.
9.6. If the Customer persists in its failure to make payment after receiving a formal demand, Speakap may refer the debt for collection. In such cases, the Customer shall be financially responsible for all of the costs incurred by Speakap due to the late payments, including procedural expenses, judicial and extrajudicial collection costs which include the costs of legal assistance, process servers and collection agencies.
9.7. The Customer may not invoke any suspension, set-off or deduction. Speakap shall be entitled to suspend its performance obligations until the Customer complies with all of its outstanding obligations.
9.8. The relevant documents and information drawn from the administration or systems of Speakap will operate as complete evidence of the Services provided by Speakap and the amounts due by the Customer for these, without prejudice to the Customer's right to provide evidence to the contrary.
Article 10. Duration and termination
10.1. The Agreement is entered into for one (1) year, unless otherwise specified in the Agreement. The Agreement will be automatically extended by one (1) year at a time, unless the Agreement is terminated in writing by Speakap or the Customer, effective from the end of the term and subject to a notice period of at least one (1) month.
10.2. Either Party is entitled to dissolve the Agreement in full or in part if the other Party is declared insolvent, applies for or is granted a suspension of payments, or if the other Party's business is discontinued or liquidated otherwise than for the purpose of reconstruction or merger of companies, or if the decisive control over the other Party’s business is changed.
10.3. Dissolution of the Agreement on the grounds of an imputable failure by Speakap is only allowed following the issue of a written notice of default in as detailed terms as possible, setting a reasonable period for rectification of the failure, unless otherwise specified in these General Terms & Conditions.
10.4. If the Agreement is dissolved, there will be no reversal or cancellation of what Speakap has already done and/or supplied and the associated obligation to make payment, unless the Customer proves that Speakap is in breach of contract in respect of the essential element of that work or those supplies. Any amounts invoiced by Speakap prior to dissolution of the Agreement in connection with Speakap's work or supplies already properly undertaken in implementation of the Agreement will remain due in full, subject to the provisions of the previous sentence, and will become immediately payable on the date of dissolution.
10.5. If the Agreement ends for whatever reason, all rights that the Customer enjoys under the Agreement, including but not confined to the user right in relation to the Service, will end at the same time. If more detailed arrangements have been made between Speakap and the Customer, Speakap will provide assistance for any data conversion that may be desired, in return for the agreed payment. If no arrangements have been made between Speakap and the Customer, Speakap shall not be obliged to provide any assistance to the Customer at or after the end of the Agreement in respect of any data conversion desired by the Customer; the Customer is itself responsible for securing the Data before the Agreement comes to an end.
10.6. Speakap is at all times entitled to block the Customer's access to the Service (temporarily) and/or to dissolve the Agreement if the Customer and/or its User(s) act in breach of the provisions of Articles 3, 4.4, 7.2 and 7.3.
10.7. Any provisions in the Agreement, including these General Terms & Conditions, that are intended by their nature to survive the end of the Agreement will remain in full force and effect after the Agreement ends.
Article 11. Privacy
11.1. In performing the Agreement, the Speakap shall process or arrange for the processing of personal data of the Customer and Users. Speakap shall do so in accordance with applicable laws and regulations and also its own privacy statement, which may be consulted on the Website. As regards the processing of Users’ personal data, Speakap is classified as a processor within the meaning of the General Data Protection Regulation.
Article 12. Warranties and indemnities
12.1 The Customer is liable to Speakap for and fully indemnifies Speakap against all losses and costs sustained or incurred by Speakap as a result of (i) any act by the Customer and/or a User when using the Service and/or the Website, including but not limited to the uploading of Data, (ii) any unlawful act on the part of the Customer and/or a User, and (iii) any infringement by the Customer and/or a User of third-party rights (including Intellectual Property Rights).
12.2 All costs incurred by and losses sustained by Speakap that are in any way connected with such arrangements will be paid by the Customer.
Article 13. Liability
13.1 Speakap's liability for an imputable failure to perform its obligations, for unlawful acts and/or for any other reason is limited to the compensation of the direct damage sustained by the Customer, up to a maximum of the amount of the payment stipulated for one (1) calendar year for performance of the Agreement. However, Speakap’s total liability for direct damage, for any reason whatsoever, will in no event exceed EUR 1,250,000. This limitation of liability also applies explicitly to the warranties issued by Speakap in these General Terms & Conditions.
13.2 Direct damage is limited to the following:
i. reasonable costs that you need to incur to achieve the performance required of Speakap under these General Terms & Conditions. These substitute costs will not, however, be compensated if these General Terms & Conditions are dissolved;
ii. reasonable costs incurred to determine the cause and extent of the damage, insofar as this determination relates to direct damage as defined in these General Terms & Conditions;
iii. reasonable costs incurred to prevent or mitigate damage, to the extent that these costs have resulted in a mitigation of direct damage as defined in these General Terms & Conditions.
13.3 Speakap's liability for anything other than direct damage ("indirect damage") – including but not confined to consequential damage, loss of profits, lost savings, diminished goodwill, damage arising from business stoppage, damage resulting from third-party claims, third-party materials, services and/or software, and damage associated with engaging suppliers – is hereby excluded. Also excluded is any liability for corruption, deletion or loss of data.
13.4 The restrictions specified in the preceding paragraphs of this article will not apply if and to the extent that the damage is the result of intent or deliberate recklessness on the part of Speakap or its senior officers ("contributory negligence").
13.5 In all instances, Speakap is only liable for an imputable failure to perform an Agreement if the Customer immediately and properly issues a written notice of default to it, specifying a reasonable period for rectification of the imputable failure, and if Speakap persists in its failure to perform its obligations even after that period has expired, except in the case of an ongoing imputable failure. The notice of default must contain a description of the failure that is as detailed as possible, so that Speakap is afforded an adequate opportunity to respond.
13.6 Any right to compensation is always conditional upon the loss being notified in writing to Speakap by the Customer as soon as possible after it arises. Any claim against Speakap for compensation will be time-barred twelve (12) months after the claim arises.
Article 14. Force majeure
14.1 Speakap is not obliged to fulfil any obligation, including any warranty or guarantee obligation agreed between the Parties, if it is prevented from doing so as a result of force majeure.
14.2 “Force majeure" includes: force majeure affecting Speakap's own suppliers; failure by suppliers to comply properly with their obligations; defects in third-party goods, equipment, software or materials; government measures; electrical power cuts; disruptions to the internet, computer network or telecommunication facilities; war; strikes; general transportation problems; and the lack of availability of one or more members of staff.
14.3 In the event of force majeure, Speakap shall be entitled to suspend its obligations under the Agreement or else to dissolve the Agreement in full or in part, without this giving rise to any obligation to pay the Customer any compensation.
14.4 If the force majeure situation persists for more than three (3) months, the Parties shall be entitled to dissolve the Agreement in writing, without this giving rise to any obligation on the part of Speakap to pay compensation.
Article 15. Other matters
15.1 The Customer is not entitled to assign the Agreement or the rights and/or obligations under the Agreement to a third party.
15.2 Speakap is entitled to assign the Agreement in full or in part to a third party and/or to have one or more third parties perform the Agreement or else to engage one or more third parties in the performance of the Agreement.
15.3 The Agreements, including these General Terms & Conditions, are governed by Dutch law.
15.4 Any and all disputes arising from or relating to Agreements that are concluded subject to these General Terms & Conditions or any Agreements stemming therefrom shall be submitted to the exclusive jurisdiction of the competent court in Amsterdam.