Terms and conditions

Other languages: Dutch

Article 1 Definitions

Agreement: The agreement Speakap enters into with the Customer with regard to the use of the Speakap Software, concluded by means of a collaboration agreement and/or via the Website, including all Appendices.
Appendices: All appendices to the Agreement that form an integral part of the Agreement, including but not limited to these Terms and Conditions of Use and the Privacy Statement.
Customer: Natural person or enterprise that has entered into an Agreement with Speakap with a view to procuring the Service.
Data: All information entered into the Software by the Customer, including but not limited to information about the Customer and content posted by Users or other third parties making use of the Software.
Download Service: The service that enables Speakap to provide the Customer with the ability to download the Software and install it onto the Customer’s own server.
Emergency: Situation in which the availability and/or use of the Software will become impossible (either entirely or on critical points) if action is not taken immediately by Speakap.
Error: The failure to satisfy to a substantial extent the specifications of the Software as described on the Website. An Error can be considered as such only if it can be identified by the Customer and if it is reproducible. The Customer is obliged to immediately report Errors to Speakap.
Helpdesk: The desk operated by Speakap to which Customers apply for answers to questions about the Service and/or the Software, from 09:00 to 17:00 on business days.
Intellectual Property Rights: All rights pertaining to intellectual property and related rights (e.g. copyright, brand rights, patent rights, rights under designs and models law, trademark rights, databank rights and related rights, and additionally rights to expertise and to performance on a par with a patentable invention).
Maintenance: The maintenance performed by Speakap with regard to the Software, including support provided through the Helpdesk.
Parties: Speakap and the Customer jointly.
Patch: Software made available for download with the objective of resolving Errors and other Software problems.
SaaS Service: The service through which Speakap makes the Software available to the Customer remotely.
Service: The provision of the Software, in the form of an SaaS Service and/or a Download Service.
SLA The service level agreement that can be concluded between the Parties for the Maintenance and support with respect to the Service and the Software.
Software: The internal social network application developed by Speakap, including updates. There are various versions of the Software. In the present Terms and Conditions of Use, Software is understood to refer solely to the version selected by the Customer and in regard to which the Customer has entered into an Agreement with Speakap.
Speakap: The private company with limited liability Speakap B.V., with its registered offices at Pedro de Medinalaan 5, 1086 XK Amsterdam and registered in the Commercial register of the Chamber of Commerce under number 51753847
Terms and Conditions of Use: The present Terms and Conditions of Use.
Third-party Software: Software that has been developed by third parties and works with the Software, including open source software.
Users: Persons whom the Customer has granted the ability to use the Software.
Website: The website of Speakap www.speakap.nl as well as all underlying web pages.

Article 2 Applicability

2.1 These Terms and Conditions of Use apply to all juristic acts of Speakap, all legal relationships between the Parties and all offers and Agreements between the Parties.
2.2 Deviations from and/or supplements to these Terms and Conditions of Use are valid only if they have been expressly agreed by the Parties in writing.
2.3 The applicability of any purchase conditions or other conditions of the Customer is hereby explicitly excluded.
2.4 If any provision of these Terms and Conditions of Use is invalid or voidable and/or is or will become for any other reason invalid, in part or in full, this will not affect the validity of the other provisions of these Terms and Conditions of Use. Speakap will replace the invalid provision with a provision that is valid, and the legal consequences of which, taking into account the content and scope of the present Terms and Conditions of Use, correspond to the greatest extent possible to the invalid provision.
2.5 These Terms and Conditions of Use apply to all Services offered by Speakap, unless it has been expressly indicated that the relevant provision applies exclusively to the SaaS Service or the Download Service.

Article 3 Right of use

3.1 On condition that the Customer has met its payment obligation, Speakap will provide the Customer a non-exclusive, non-transferable, non-sublicensable, limited licence to use the Software in accordance with the provisions of this Agreement and these Terms and Conditions of Use.
3.2 The right of use comprises solely the object code of the Software, and does not extend to the source code of the Software. The source code of the Software is not made available to Customers.
3.3 The Customer will independently install, set up, parametrise and tune the Software and, if necessary, adapt the equipment used and the operational environment. Speakap is not obliged to perform data conversion.
3.4 The Customer is authorised to use the Software exclusively in and on behalf of its own business or organisation and exclusively for the intended purpose
3.5 The Customer is not entitled to publish, reproduce, modify, decompile or apply reverse engineering to the Software, unless or insofar as dictated otherwise by mandatory law.
3.6 The Customer is not permitted to sell, lease, dispose of or issue restricted rights to the Software or make it available to a third party in any way whatsoever or for whatever purpose. Neither will the Customer grant a third party access to the Software, remotely or otherwise.
3.7 The Customer will, within the scope of the Service, be provided with a user name and a password. The Customer is responsible for maintaining the strictest confidence with regard to its user name and password combination. The Customer is therefore also liable for all use made of the Service via the user name and password. Speakap may therefore safely assume that the Customer is indeed the party that has logged in to the service under the Customer’s user name. In the event that the Customer learns or has reason to suspect that its user name and/or password has/have come into the hands of an unauthorised party or parties, the Customer is obliged to report this to Speakap without delay, without prejudice to the Customer’s obligation to immediately take effective measures independently to resolve this issue by, for instance, changing its password.

Article 4 Provision of Service

4.1 Speakap shall make every effort to provide the Service conscientiously. The execution of the Service will be based on a best efforts obligation
4.2 The Customer can place an order by (i) completing the order process on the Website or (ii) signing the Agreement. The Agreement will take effect the moment it is signed by the Parties.
4.3 The Customer will determine which Data will be stored with the aid of the Service and the manner in which the Customer and its Users will make use of the Service. Speakap has no information about this Data and the use of the Services by the Customer and/or its Users. The Customer is therefore liable for ensuring that the Data and the Service are being used in a legally valid manner and that no infringement is made upon the rights of third parties. Speakap accepts no liability whatsoever for the Data stored using the Service and/or the use made of the Service by the Customer and/or its Users. The Customer indemnifies Speakap against claims by third parties, including but not limited to the Customer’s Users, that are based on the assumption that unlawful use is being made of the service by the Customer and/or that the Data stored with the aid of the Service is contrary to the law.
4.4 Speakap is entitled to amend the scope and/or content of the Service, informing the Customer thereof at the earliest opportunity. If this concerns a substantial amendment with regard to the Service as agreed, the Customer is entitled to cancel the Agreement in writing within thirty (30) days of the amendment being announced, such cancellation to apply from the date on which the amendment is to become effective. Unless expressly agreed otherwise in writing, Speakap is not obliged to maintain, amend or add specific features or functionalities of the Service or the Software specifically for the Customer.
4.5 In the event that an updated version contains new functionalities, Speakap will be entitled to charge additional costs for these.
4.6 In respect of the Download Service, Speakap is entitled to offer new versions of the software for downloading. A Customer is entitled to use only the most recent or the penultimate version of the Software. Speakap can also offer Patches for downloading. The Customer is obliged to download and install these at its earliest convenience.
4.7 The Customer must be able to vouch for the correctness and completeness of all data that it has provided to Speakap or that has been provided on the Customer’s behalf.
4.8 The Customer will, however, under no circumstances be provided a physical data carrier or copy of the Software.
4.9 If the Customer chooses to make use of the Download Service, Speakap will be entitled to have an audit conducted. Upon request, the Customer will immediately provide its full cooperation in an audit conducted for the purpose of establishing the Customer’s compliance with the restrictions on use as agreed between the Parties. Within this context, the Customer will grant access to the Customer's buildings, system and accounts. Speakap will make every effort to ensure that the audit places as few restrictions as possible on the Customer’s day-to-day business operations. Speakap will treat as confidential the information obtained as a result of this audit. The costs of the audit will be borne by Speakap, unless the audit reveals any irregularities. In this case, the costs of the audit, without prejudice to Speakap’s other rights to hold the Customer to account, will be borne by the Customer.

Article 5 Maintenance

5.1 Speakap will take care of all the necessary maintenance in the manner described in this Article insofar as the Customer makes use of the SaaS Service. In addition to this, Speakap also offers the Customer the option of concluding an SLA with Speakap. If an SLA is concluded between the Customer and Speakap, this will form part of the Agreement as an Appendix.
5.2 Speakap does not guarantee that the Software made and kept available to the Customer within the context of the execution of the Service is free of errors and will function without interruption.
5.3 If the Customer has any questions with regard to the Services and/or the Software, the Customer can contact the Helpdesk in the manner described on the Website. The Helpdesk will make every effort to answer the Customer’s questions to the best of its ability and within a reasonable term.
5.4 Speakap cannot guarantee that Errors will not occur and that these will be resolved. Speakap will, however, make every effort to resolve any Errors in the SaaS Services as quickly as possible.
5.5 Speakap will never be obliged to resolve Errors free of charge if these have arisen from improper or injudicious use on the part of the Customer, use that is contrary to the Agreement or these Terms and Conditions of Use, or any other cause that cannot be attributed to Speakap.
5.6 Speakap is entitled at all times to apply temporary solutions and/or software workarounds or problem-avoiding restrictions to the Software. Under no circumstances is Speakap liable for restoring corrupted or lost data.
5.7 Speakap is not responsible for the purchase and/or proper functioning of the Customer’s infrastructure. Speakap is not liable for damage or costs arising from transmission faults, disruptions or non-availability of computer, data or telecom facilities, including the Internet.
5.8 Speakap is entitled to temporarily suspend and/or restrict access to the Software, in part or in full, if Speakap deems this to be necessary (for Maintenance purposes, for example). Speakap will inform the Customer of this if Speakap deems this to be necessary. Speakap will inform the Customer as quickly as is reasonably possible in the event that, due to an Emergency, it is forced to immediately suspend or limit access to the Software.
5.9 Unless agreed otherwise, Speakap will not perform maintenance on the Download Service. In the event that this is necessary, the Customer can call the Helpdesk. Speakap will make every effort to answer the Customer’s questions as quickly and as fully as possible. If it becomes necessary for physical maintenance to be performed by Speakap at the Customer’s address, the costs incurred will be borne by the Customer.

Article 6 Security

6.1 As Speakap attaches considerable value to the security of its Services and the Data, Speakap applies extensive security systems and modern technology to maintain the security of the Services, Software and Data.
6.2 With regard to the SaaS Service, the login procedure for the Service always runs via a secure connection and passwords are saved to the servers in an encrypted form.
6.3 At regular intervals, your Data is copied automatically and in an encrypted form to another data centre established at another location.
6.4 Speakap makes use of a modern data centre that has taken the necessary technical and organisational measures, including those relating to access, to guarantee the security if the servers.
6.5 You will find more detailed information about Speakap’s security policy on the Website.

Article 7 Intellectual property rights

7.1 All Intellectual Property Rights to the Services and/or Software, with the exception of the Data, are vested exclusively in Speakap or its licensors. The Customer is not permitted to remove from the Software, files or materials any references relating to the confidential nature and/or the relevant Intellectual Property Rights, or to amend the Software, files or materials.
7.2 Speakap is entitled to introduce technical provisions to protect the Software, files or materials (or to delegate this activity to a third party) in relation to an agreed limitation in the content or duration of the licence. The Customer is not permitted to evade or remove such technical provisions (or to delegate these activities to a third party).
7.3 The Customer is not permitted to introduce changes or additions (or to have these introduced by third parties) or have maintenance or repairs performed by third parties on the Software, files or materials supplied by Speakap.

Article 8 Third-party Software

8.1 The Software makes use of Third-party Software. If and insofar as Third-party Software is used, the licence and other conditions of those third parties shall supersede the provisions of these Terms and Conditions of Use as regards that software. The Customer is held to accept the terms and conditions of use with respect to the relevant Third-party Software. The applicable licence and other conditions of third parties can be consulted on [www.speakap.nl].
8.2 If and insofar as the aforementioned conditions of third parties are for any reason considered or declared inapplicable to the relationship between the Customer and Speakap, the provisions of these Terms and Conditions of Use will apply unimpaired.
8.3 The Software may contain applications, content and services provided by third parties and/or links to websites of third parties. The inclusion or availability of content provided by third parties in the Software and/or the possibility of linking third-party applications to the Software on the Website does not imply that this has been approved and/or checked by Speakap. Speakap is not responsible for the content of and methods used in third-party content or use of this by Users. The use of third-party content may be subject to the general terms and conditions and/or privacy statements of these parties.
8.4 The Customer indemnifies Speakap against all damage and costs arising from and/or related to claims by third parties, for whatever reason, in relation to the use of Third-party Software by the Customer or its Users, including any action undertaken by the Customer that is contrary to the applicable terms and conditions of use with regard to the Third-party Software or a violation of the Intellectual Property Rights with regard to the Third-party Software.

Article 9 Prices and payment

9.1 The Prices are subject to the chosen Service and its number of Users. All amounts relevant to the Service are due in advance for each successive calendar year, unless agreed otherwise between the Parties. Payments must be made within thirty (30) days of the invoice date, unless agreed otherwise in writing or stated otherwise on the invoice.
9.2 All prices include VAT and other mandatory and government levies. Unless indicated otherwise, all prices are in EUR and the Customer must effect payment in EUR.
9.3 For the duration of an Agreement, Speakap is entitled to raise the price of its Services every year, as from 1 January, in accordance with the price index figure of the previous calendar year, as published by Statistics Netherlands (CBS) (Consumer Price Index ‘All Households’), increased by no more than 15%. Speakap is entitled to raise its prices at a later date if Speakap deems this necessary for administrative purposes. If the Customer is a Consumer and the price is raised within three (3) months after the Agreement has been concluded, the Customer is entitled to terminate the Agreement, with due observance of a notice period of one (1) month as from the date on which the price increase is to become effective.
9.4 Further to the provisions of Article 9.3, Speakap is also entitled to raise the price of its services if the costs incurred by Speakap increase. Speakap will announce this price rise no later than two (2) months prior to the date on which this price will become effective. In the event that the Customer is not in agreement with the price increase, the Customer is entitled to terminate the Agreement with due observance of a notice period of one (1) month prior to the date on which the price increase is to become effective.
9.5 Any appeal on the part of the Customer for suspension, settlement or deduction is not permitted, unless mandatory law with regard to consumers prescribes otherwise.
9.6 If after expiry of this term Speakap has not yet received full payment, the Customer will be deemed immediately to be in default, without any demand or notice of default being required. From the moment of default, the Customer will owe the statutory interest on the overdue amount.
9.7 In the event of the Customer failing to meet the payment obligation after being held in default, Speakap may refer the claim can be for collection. In such a case, all costs incurred by Speakap in connection with late payments, such as legal costs and judicial and extrajudicial costs, including the costs for legal assistance, bailiffs and collection agencies incurred in connection with the overdue payment, shall be chargeable to the Customer.
9.8 Speakap is entitled to suspend fulfilment of its obligation until the Customer has fulfilled all its payable obligations.
9.9 Without prejudice to the Customer’s right to provide evidence to the contrary, the relevant documents and data from Speakap’s records and systems will serve as complete evidence with regard to the Services provided by Speakap and the amount owed by the Customer for their procurement.

Article 10 Duration and termination

10.1 The Agreement is concluded for a period of one (1) year, unless explicitly agreed otherwise in the Agreement. The Agreement will be tacitly extended each year for a period of one (1) year. After the initial period, the Customer and Speakap are both entitled to terminate the Agreement in writing and at any time, with due observance of a notice period of one (1) month, unless otherwise provided for in the Agreement.
10.2 Each Party is entitled to terminate the Agreement, in part or in full, in the event of bankruptcy or suspension of payment on the part of the other Party, and additionally in the event that the other Party’s business is closed down or wound up for any reason other than for the purpose of reconstruction, a merger or a change in control of the other Party’s business.
10.3 Termination of the Agreement on grounds of a culpable shortcoming is permitted only pending a detailed written notice of default, with proposal of a reasonable term to remedy this failure, unless otherwise provided for in these Terms and Conditions of Use.
10.4 In the event of termination of the Agreement, any work that has already been provided and/or performed by Speakap and the related payment obligation will not be reversed, unless the Customer is able to prove that Speakap is in default in relation to this work. The liability for amounts that Speakap may have invoiced before the termination, for work done or deliveries made properly by Speakap as required under the Agreement, will not be prejudiced, subject to the provisions contained in the previous sentence, and such amounts will be immediately payable at the time of the termination.
10.5 In the event of termination of the Agreement, for whatever reason, all rights enjoyed by the Customer under the Agreement, including - but not limited to - the user rights to the Software, will at the same time become null and void. Immediately upon termination of the agreement, the Customer will be obliged to remove all copies of the Software, files or materials supplied by Speakap under the Agreement from its systems and return them to Speakap. Upon termination of the Agreement, Speakap is not obliged to provide any assistance to the Customer with regard to data conversion, if desired by the Customer. The Customer shall be responsible for securing its own Data upon termination for the Agreement.
10.6 Provisions in the Agreement which by their very nature are intended to continue even after the end of the Agreement shall remain in full force after the end of this Agreement.

Article 11 Privacy

11.1 Any personal details provided by the Customer within the context of the fulfilment of the Agreement will be processed by Speakap in accordance with the applicable laws and regulations and with its privacy statement, which can be consulted on the Website
11.2 Speakap will also process personal details of Users within the context of the fulfilment of the SaaS Service. As regards this processing, Speakap qualifies as a processor within the meaning of the Dutch Personal Data Protection Act.
11.3 The Customer guarantees that it satisfies fully all statutory obligations, including but not limited to the obligations arising from the Personal Data Protection Act, and that it is entitled to engage Speakap as a processor or sub-processor of the relevant personal data. The Customer also guarantees that it is entitled to grant Speakap the right to engage processors and sub-processors. The Customer shall fully indemnify Speakap against all claims by third parties, including the sub-processors, that in any way arise from and/or are related to the processing of personal data by Speakap and/or result from violation of the aforementioned guarantees on the part of the Customer.
11.4 Speakap will make every reasonable effort to secure its systems and the transfer of data between Speakap and the Customer against loss and/or any form of unlawful use, for which purpose Speakap will impose suitable technical and organisational measures as described in Article 6, taking into consideration among other things the latest technological requirements. The Customer declares that it has taken cognizance of the measures imposed by Speakap and that it has established that these measures guarantee a suitable level of security with regard to the personal data being processed. The Customer shall fully indemnify Speakap against all claims by third parties that are in any way based on the assumption that the technical and organisational measures imposed by Speakap are not suitable and/or sufficient.
11.5 The provisions included in this article with regard to the processing of personal details qualify as a processor agreement as referred to in the Dutch Personal data Protection Act.

Article 12 Liability

12.1 The liability of Speakap for culpable non-compliance in the fulfilment of its obligations, arising from an unlawful act and/or on any other grounds, is limited to compensation for direct losses incurred by the Customer up to a maximum of the amount of the price set for the performance of the Agreement for one (1) calendar year. However, Speakap’s total liability for direct damage, on any grounds whatsoever, will never amount to more than one thousand euros (€ 1,000). This limitation of liability extends explicitly also to the guarantees provided by Speakap in these Terms and Conditions of Use.
12.2 Speakap’s liability for indirect loss or damage, consequential losses, lost profits, missed savings, loss of goodwill, loss or damage resulting from business stagnation, loss or damage resulting from claims by third parties, materials, services and/or software and losses incurred through the engagement of suppliers is excluded, as well as Speakap’s liability for corruption, destruction or loss of data.
12.3 The exclusions and limitations referred to in this Article cease to apply if and to the extent that the damage or loss is a consequence of an intentional act or wilful recklessness on the part of Speakap or its management (“through its own actions”).
12.4 In all cases, Speakap’s liability for culpable non-compliance with an Agreement shall come into effect only if the Customer immediately sends Speakap proper written notice of default, setting a reasonable period of time in which to remedy such non-compliance, and Speakap continues to fail to meet its obligations after that period of time, except in the case of a lasting culpable shortcoming. The notice of default should contain a description of the non-compliance in as much detail as possible so that the Speakap is able to put forward an adequate response.
12.5 The right to compensation for damages shall at all times be subject to the condition that the Customer reports the loss to Speakap as soon as possible following its occurrence. Any claim to compensation for damages against Speakap shall become void after the lapse of twelve (12) months from the date that the claim arose.

Article 13 Force majeure

13.1 Neither of the Parties is bound to fulfil any obligation, including any obligation agreed upon between the Parties with regard to guarantee, if it is prevented from doing so by force majeure.
13.2 Force majeure is understood to include: force majeure vis-à-vis suppliers of Speakap; the failure of suppliers to properly fulfil obligations imposed by the Customer on Speakap; defective items, equipment, software or other material of third parties, which Speakap has obliged the Customer to use; government measures; power failures; failures of the Internet, computer network or other telecommunication facilities; war; strikes; general transport problems; and the non-availability of one or more staff members
13.3 13.3 In the event of force majeure, Speakap is entitled to suspend its obligations arising from the Agreement and/or terminate the Agreement (in part or in full) without any obligation towards the Customer for compensation of loss or damage.
13.4 13.4 If the force majeure situation lasts longer than three (3) months, each of the Parties is entitled to terminate the Agreement in writing, without any obligation on the part of Speakap to compensate the other Party for loss or damage.

Article 14 Other provisions

14.1 The Customer is not entitled to transfer the Agreement or the rights and/or obligations arising from the Agreement to a third party.
14.2 Speakap is entitled to have the Agreement executed in full or in part by third parties, or to engage third parties for the execution of the Agreement
14.3 The Agreement and these Terms and Conditions of Use are governed by Dutch law. The applicability of the Vienna Sales Convention of 1980 is excluded.
14.4 Insofar as such has not been prescribed otherwise by national or international mandatory law, all disputes arising and/or related to the Agreements concluded under these Terms and Conditions of Use, or Agreements arising from them, will be brought exclusively before the competent court in Amsterdam.

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