Legal

General Terms and Conditions

As registered at the Dutch Chamber of Commerce under #66844177:

Our terms and conditions are just as simple and clear as our product. If you have questions about these terms, you can contact us at support@watermelon.co.

Article 1. General definitions

  1. Who is who? Who am I?
    1. Watermelon: that’s us, the software provider from Utrecht.
    2. Assigner: that’s you, the business owner that wants to use our service tool.
    3. User: every person that uses our software.
    4. Parties: that’s both of us
    5. Watermelon software: our unique and specially programmed software that offers a customer service solution.
    6. Attachment: the attachment that is connected to these General Terms and Conditions and therefore are inextricably linked together.
  2. It’s possible to change these terms and conditions, but only when we both agree on this in writing before the contract has been signed.
  3. If there’s a dispute that results in legal action that leads to dismissal of this or another article in these terms, the other articles will still remain in effect.
  4. Our general terms and conditions also apply to all third parties we use to provide even better customer service solutions.
  5. When Watermelon software uses services from third parties, the terms and conditions of the applicable third party also apply to all of our contracts. We are not responsible for this third party’s services, general terms and conditions or the licensing terms. When it concerns the services of third parties, the general terms and conditions and the licensing terms and conditions apply to both Watermelon and the Assigner, and these general terms and conditions no longer apply. We expect that you accept these general terms and conditions, and licensing terms and conditions of these third parties, and can provide them to you at your request.

Article 2. Quotes

  1. All quoted prices exclude value-added tax and all other applicable government taxes.
  2. If there is an unintentional error in the quote, then we aren’t mandated to abide by this quote. We hope for your understanding in this situation.
  3. If we want to provide you with a suitable pricing quote, then we will need information from you. Send us an email with at least the number of Users who will be using the Watermelon Software. When you want to change this information afterwards, this can affect the pricing.
  4. This contract is applicable only when both signatures are on it and we have received the signed contract from you.
  5. The signed contract is valid for a specific amount of time and afterwards will be tacitly extended for an unlimited time. If you do not want to renew the contract, you need to notify us of your intent in writing thirty days (30) before the end date of the contract.
  6. Once the contract has been tacitly renewed for an unlimited period, you can only cancel the contract with a thirty days (30) notice period at the end of the calendar month. For instance, if you want to cancel your subscription per the 1st of October you will have to notify us before the 1st of September. 
  7. We have the right to end the contract during the contract period without financial cost when we find that our mutual agreement is no longer applicable.
  8. You cannot end the a time-bound contract during the middle of the contract period.
  9. We assume there will be an eventual contract between the parties when you create a Watermelon account. If you create an account and use it actively before a contract has been signed, this is equivalent to entering a contract for a Vegetable Garden plan, where termination of the contract is only possible with a thirty days (30) notice period.
  10. All cancellations should be admitted in writing by emailing invoice@watermelon.co and will all be subjected to the mentioned cancellation periods in article 2.5 and 2.6.
  11. By creating a Watermelon account, you accept our General Terms and Conditions.

Article 3. Contract execution

  1. We do our best to honour the contract terms and to make you as satisfied as possible.
  2. All contracts between us are governed by a commitment to make the best possible effort to execute the contract, unless we have specifically agreed upon a particular result. This agreed upon result must be sufficiently detailed in writing in a way that is clear to both parties.
  3. We at Watermelon have the right to allow third parties to complete specific tasks or allow third parties to represent us in all cases or situations that Watermelon deems it useful or necessary.
  4. In order to execute the agreed-upon terms of the contract as efficiently as possible, we expect you to do what’s necessary to make that possible. We need some information from you in order to offer our solution in an efficient way. When you don’t provide us with (the correct) information, we can suspend the execution of the contract until you’ve provided that information. You are responsible for paying any additional costs we incur because of this delay.
  5. Despite our efforts to make the Watermelon software as carefully as possible, we can’t guarantee that it will always be available and work without interruption, error or omissions, or that the information that we provide is always complete, correct and/or up to date.
  6. The time terms that we agree on with regard to the execution of the contract are not firm dates.
  7. In your role as the Client, you are mandated to follow the norms of the General Data Protection Regulation (GDPR) with regard to saving and interacting with the personal data you receive from Users. This personal data may not be sold or provided by other means to third parties, unless your Users have explicitly provided permission for this purpose before it occurs.
  8. As Client you are responsible for obtaining the explicit permission of your Users to process their personal data.
  9. You are responsible for the (purchase of) hardware, software, accessories and connections which are required to execute the contract under these terms.

Article 4. Changes to the contract

  1. When we need to make changes to the contract in order to offer even better customer service solutions, it’s important that we discuss the changes and record the changes in writing in a timely fashion..
  2. When we need to do work that falls outside of the terms of this contract, upon your request or with your permission, you are responsible for the costs of this work. We are never mandated to comply with a request of this nature.
  3. If we can’t meet the agreed upon deadlines because there needs to be work done that falls outside the terms of the contract, upon your request or with your permission, we expect you to understand our inability to meet the deadlines as previously agreed upon. When extra work is required in the execution of the contract, this is never a reason that the Client can end or terminate the contract.

Article 5. Pricing and payment

  1. The cost of Watermelon software and services is calculated based on an annual fixed price.
  2. All prices and fees are calculated in Euros and do not include VAT, unless stated otherwise. 
  3. We have the right to raise agreed upon prices by a maximum of 5% each year starting January 1st. We are not required to offer your the option to end the contract prior to raising our prices.
  4. It isn’t likely to happen often, but if needed we can ask for a (complete) advance payment for the total costs associated with the execution of the contract. We are also able to fulfil the terms of the contract in a series of parts, and partially invoice you.
  5. We send invoices electronically. This means we’ll automatically generate and send our invoices digitally.
  6. Unless explicitly agreed otherwise in the contract, payments for the product shall be made through direct debit and upfront. We are entitled to charge administration costs if payments are made using alternative payment methods. The usage of an alternative payment method has to be agreed upon in writing. 
  7. If the direct debit has failed because of insufficient credit, reversal of payment, or for other reasons Client will automatically receive a message. In such cases, Watermelon will try to collect the invoice again through direct debit. If the collection attempts have failed twice or multiple times or if payments are reversed several times, Watermelon will send another invoice requesting to pay through wire transfer (manually) and as soon as possible. This invoice shall contain the amounts due and extra administration costs ( €17,50) excluding VAT. If a direct debit has failed in the past, for whatever reason, a new invoice for wire transfer will be sent already after the first failed collection attempt. This invoice will already include extra administration costs as mentioned above. 
  8. If a payment is wrongfully reversed potential extra costs or inconveniences shall be borne by the Client. Besides that, you (as a client) are responsible for providing correct information and bank details. This means: bank account number and ascription.
  9. If an alternative payment method is agreed upon explicitly in the contract Client shall need to pay within the stated payment deadline on the invoice or the agreed upon deadline in writing. If no deadline is agreed upon, payments shall be made within 14 days after the invoice date. If you don’t make a payment within the stated deadline, you are in default and we can legally charge interest. The interest will accrue from the due date of the invoice until the day when the invoice has been paid in full.
  10. We can make you responsible for costs, including extrajudicial costs, when you don’t meet one or more requirements of you in the contract, where the extrajudicial costs are a minimum of 15% of the invoice, with a minimum of € 100,–.
  11. The Client does not have the right to suspend or make settlements against Watermelon with regard to the Client’s contractual responsibilities.
  12. Complaints or remarks about invoices need to be emailed to invoice@watermelon.co within 7 days after the invoice date. After this deadline has passed the invoice is considered as accepted. 

Article 6. Liability

  1. We are never liable for damages, regardless of the nature of the damages, unless there is evidence of direct damage (this is exclusively the material damage that is the direct result of an attributable shortcoming or an illegal deed as a consequence of intent or gross negligence).
  2. We consider direct damage to be exclusively:
    1. the reasonable cost incurred to determine the cause of and the extent of the direct damage;
    2. the reasonable cost incurred to determine our shortcoming against the terms of the contract, unless this shortcoming cannot be attributed to us;
    3. the reasonable cost incurred to prevent or limit damage. You must be able to prove that by incurring these costs you have actually prevented direct damage.
  3. If we are liable for damage, then the extent of the damage is limited to the coverage of our liability insurance, the pay out amount specified in the company liability insurance that applies to the instance in question, increased by the risk of Watermelon.
  4. If the insurer is not able to pay, or if the damage is not covered by the liability insurance, our liability is limited to a maximum of 50% of the invoice value of that specific part of the contract to which the liability applies.
  5. We are never liable for indirect damage (including but not limited to damage because of bankruptcy, lost profits, loss of company data, consequential damages, missed cost savings and damage that is a result of or is caused by the execution of the contract).
  6. When you want to make us liable because the agreements in the contract are not (sufficiently) met, you will need to inform us and provide us a reasonable period of time where we can try to meet the terms of the contract.
  7. We are not liable for any form of damage that occurs because you provided us with incorrect or incomplete information.
  8. We are not liable for damage that happens to Users when they have incurred damage because of an inability to execute the contract, that is provided by you to a third party and partially occurred due to business, materials or results provided by us.
  9. We are not liable for damage that is the result of force majeure.
  10. We are not liable to compensate damages that are the result of changes to the Watermelon software.
  11. We are not liable for damage that is cause by the use of third-party products or services, as specified in article 1, paragraph 5, by the Client or the incorporation of these services in the Watermelon software. You will need to claim that the third party is liable.
  12. You need to be aware of and manage the fact that third parties, as specified in article 1, paragraph 5, can process personal data. You need to do research yourself about the processing of this data. We are not liable for the use, processing, change or publication of personal data by third parties. You must indemnify us against every claim, based on the agreements made in this article.
  13. If the damage can be attributed to intent or gross negligence on our part, the limitations of liability in these general terms and conditions do not apply.

Article 7. Force majeure

  1. We can suspend our need to fulfil the terms of the contract as long as the force majeure endures. The force majeure does not mean that you can suspend your need to fulfil the terms of the contract.
  1. What do we consider to be force majeure? Force majeure is understood to mean, in addition to its definition in law and legal precedent: every circumstance beyond the control of Watermelon which temporarily or permanently prevents performance of the agreement and which should not, pursuant to the law and within the standards of reasonableness and fairness, be for the risk of Watermelon, as well as, insofar as not yet included therein, faults or failure of the Internet or the telecommunications infrastructure, SYN flood, network attack, DoS or DDoS attacks, power failures, internal civil commotion, mobilisation, war, obstruction in transport, strike, lockout, business disruptions, delay in supply, fire, flood, import and export impediments and in the event that Watermelon is prevented, for whatever reason, from supplying through its own suppliers, as a result of which fulfilment of the agreement cannot reasonably be required of Watermelon.
  2. Watermelon shall inform you as soon as possible of a force majeure situation unless the circumstances render this in fairness impossible.
  3. In the event of partial execution of the agreement by Watermelon upon occurrence of the force majeure situation, Watermelon is entitled to invoice the executed part separately.
  4. If the force majeure situation on the part of Watermelon continues for longer than three months, either one of the Parties may terminate the agreement prematurely, without prior notice and without paying any damages.

Article 8. Availability and back-up

  1. Watermelon shall make every effort to achieve uninterrupted availability of the Software and to provide access to stored data, but provides no guarantees to that effect.
  2. Watermelon is not bound to provide backups of client data, unless in the event of ‘major data loss’, and only in as far as the requested backups are available to Watermelon, subject to the discretion of Watermelon.
  3. If Watermelon provides a backup to the client, as referred to in the previous paragraph, Watermelon is entitled to charge a fee.
  4. Watermelon shall make every effort to keep the Software up to date.
  5. If in the opinion of Watermelon the operation of the Software, the network of Watermelon or of third parties is at risk, in particular as a result of excessive sending of data, poorly protected systems or activities of viruses, trojans and similar software, Watermelon is entitled to take all the steps that Watermelon reasonably considers necessary to avert or prevent this risk.

Article 9. Downtime and issues

  1. In the instance of maintenance, changes or improvements to the Watermelon software ot the servers, we have the right to completely or partially (temporarily) suspend our provision of service. We will do our best to ensure that the lack of availability occurs outside of office ours and to inform you of planned downtime in a timely fashion. Watermelon is not liable to compensate damage attributable to downtime.
  2. We have the right to regularly update the Watermelon software, or a part of it, in order to improve the functionality and fix errors. If a change leads to a change in functionality, we will strive to inform you of the change in a timely fashion.
  3. When our provision of service is not available due to issues, maintenance or other causes, we will do our best to inform you about the nature and expected duration of the interruption.

Article 10. Intellectual property 

  1. All Intellectual property rights to all of the software, materials, programs, analyses, designs, documentation, advice or consultation, reports, invoices and preparatory material thereof and other materials (hereafter called: the materials) which are prepared with regard to the contract or are made available, are vested exclusively in Watermelon or its licensers.
  2. Watermelon hereby grants you a non-exclusive, non-transferable right to use the Watermelon software, but only for the goals specified in the contract.
  3. The Client is not permitted to alter or remove any designation or notice relating to the Intellectual Property Rights, including any designations relating to the confidential nature and confidentiality of the materials.
  4. Watermelon is permitted to take technical measures to protect the materials. If Supplier has used technical protection to protect the materials, the Customer is not permitted to remove or attempt to evade this protection.
  5. The rights of use designated in this article explicitly do not include access to and use of the Watermelon software source code.
  6. Any use, reproduction or publication of the materials that is beyond the scope of the agreement or rights of use granted will be regarded as a breach of Watermelon’s intellectual property rights. When you do this, you will be fined an immediately payable penalty that is not open to judicial moderation of 10,000 euros per breach to Watermelon, to be increased by a further 500 euros per additional day that the breach continues, without prejudice to the right of Watermelon to obtain compensation for any damage on account of the breach or to take other legal action in order to terminate the breach.
  7. Watermelon does not own details, information or materials sent by you or your Users through the Software during use of the Software. Users therefore bear the responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and the intellectual property rights of third parties to and of the entered data.
  8. Watermelon shall indemnify you against any third-party claims that the Software supplied by Watermelon breaches an intellectual property right of the third party concerned. You should inform Watermelon in writing about the existence and substance of a claim and leave the handling of the case entirely to Watermelon. For that purpose you shall provide Watermelon with the powers of attorney, information and cooperation necessary to defend themselves against these claims.
  9. The indemnification obligation set out in the previous paragraph does not apply if the alleged breach relates to:
    1. Materials made available to Watermelon by you for the purpose of use, editing, processing or incorporation, or
    2. Changes in or to the Software made by you, or made by a third party upon your request.

Article 11. Complaints

  1. We do our best to make our product the best that it can be. If you have a complaint, let us know as soon as possible, at the most within 14 (fourteen) days.
  2. As frustrating as the complaint may be, the invoice must be paid within the agreed upon period of time designated on the invoice.
  3. If there are sufficient grounds for a complaint, we will continue to uphold our agreement, unless in the meantime there is evidence that this is useless to you. When you are of the opinion that continuing to uphold our agreement is useless, you must inform us in writing in a timely fashion.

Article 12. Confidentiality and privacy

  1. Both Watermelon and the Client are mandated to secrecy with regard to all confidential information and data that has been exchanged with regard to the contract.
  2. Information should always be considered confidential, unless specified by the party or if this is a natural interpretation of the information exchange.
  3. The upholding of secrecy (confidentiality) specified in paragraph 1 does not apply with regard to legal or professional rules that enforce an information requirement on Watermelon.
  4. When you send information to Watermelon, for example feedback about an issue or a suggestion for improvement, you provide Watermelon with an unlimited and perpetual right to use this information for the Watermelon software, unless this information has been indicated to be confidential.
  5. Watermelon will not acquire knowledge from data that you save or distribute via the Watermelon software, unless this is absolutely necessary for satisfactory provision of service, or if Watermelon is enabled by a legal determination or order. In that instance Watermelon strives to limit the acquisition of knowledge from the data inasmuch as possible.
  6. The Client has responsibilities to third parties with regard to the processing of personal data, such as the need to supply information, or provide insight into, correcting and deleting personal data of associated parties. The Client is solely and entirely responsible for fulfilling these responsibilities. Both parties consider that Watermelon is a ‘processor’ with regard to the processing of personal data for the Dutch Personal Data Protection Act and a ‘processor’ with regard to the General Data Protection Regulation.
  7. Article 28(1) GDPR requires that between data processors and Clients (those responsible) an agreement is made which discusses Data Processing. This agreement is an integral part of these General Terms and Conditions and of the contract. This Data Processing Agreement is included in the attachments. 

Article 13. Suspension and termination

  1. We have the right to (partially) suspend our need to fulfil the responsibilities of the contract, or to terminate the contract, without any notification of default and without need to compensate for damages when:
    1. you are in default of fulfilling your responsibilities as detailed in the contract (in a timely fashion);
    2. there is evidence that you have not, have not completely, or have not in a timely fashion fulfilled or will not fulfill a responsibility to Watermelon;
    3. you have declared bankruptcy, have been placed in a state of receivership, have obtained suspension of payment, or have the legal debt restructuring rules apply, or have any of the previously mentioned procedures in process;
    4. you violate article 4 of these terms and conditions;
    5. you violate article 3.8 of these terms and conditions.
  1. Suspension and termination are only possible to the extent that the shortcoming makes that legally possible.
  2. Watermelon has the right to terminate the contract in the instance of circumstances that make fulfilment of the contract impossible or in the instance that upholding the contract without changes can not be expected against norms of reasonableness and fairness.
  3. All of the Client’s responsibilities to Watermelon are immediately due after the suspension or termination.
  4. If we decide to suspend of terminate the contract, you are still responsible for your payment per the terms of the contract. Watermelon has the right to be compensate for the following costs: costs of damage, losses caused by the Client’s non-performance, costs of termination and Watermelon’s lost profits.
  5. In the instance of contract suspension, Watermelon has the right to suspend your access to the software.

Article 14. Storage of information

  1. We shall carefully save the information you provide to us. Unless proven otherwise, we have fulfilled this responsibility.
  2. The Client also bears the risk of damage to or loss of the data saved by Watermelon or third parties, unless the damage or loss is attributable to Watermelon’s intentional error or intentional negligence.

Article 15. Changes to the general terms and conditions

  1. Watermelon always has the right to change or add to these general terms and conditions.
  2. Changes also can apply to contracts which have previously been signed. We consider a time period of 30 (thirty) days that begins when notice of the change has been published on Watermelon’s website.
  3. When you don’t want to accept a change to these general terms and conditions, you can choose to end the contract up until the day that the new terms go into effect.

Article 16. Additional terms

  1. These general terms and conditions remain in effect regardless of a change to Watermelon’s (fruit)name, form of business or owner.
  2. All legal relationships between us to which these general terms and conditions apply are subject solely to Dutch law.
  3. The judge of the territory ‘Middle Netherlands’, located in Utrecht has the exclusive right to settle any issue between Parties that is related to the present contract.

 

  1. There is evidence of a dispute if one of us claims there to be.
  2. These terms are applicable as of the 25 of May 2018.

Attachment 1: Data Processing Agreement

This Data Processing Agreement is an integral part of the General Terms and Conditions of Watermelon BV, and therefore of the contract entered into by and between Client, hereinafter referred to as: ‘the Controller’, and Watermelon BV, hereinafter referred to as: ‘the Processor’. This Data Processing Agreement governs the processing of personal data through the Services provided by Processor in accordance with the General Data Protection Regulation (hereafter: GDPR). 

On the grounds of the General Data Protection Regulation (GDPR), in effect since May 25, 2018, there must be an agreement between data controllers and data processors about the processing of personal data by the processor (Watermelon) on behalf of the controller (your entity). By signing this data processing agreement, we make the following agreements:

1. Definition of legal terms

The GDPR uses a variety of complex legal terms, but we want to make sure you understand

what you’re agreeing to. Here’s a definition of these legal terms:

  • Personal data: every piece of information relating to an identifiable natural person, one who can be identified directly or indirectly, for example by an identifier such as a name, email address or phone number.
  • Data subject: the natural person to whom a piece of personal data corresponds, or the representative of that natural person. This is, for example, a customer or supplier who’s (email address) or phone number you’ve saved.
  • Processing of personal data: everything you can do with personal data, including almost every verb, including but not limited to:
  • collecting, documenting, recording and sorting data;
  • requesting, changing, structuring, consulting and examining data;
  • providing data to others;
  • the protection of or the destruction of data.
  • Controller: the person or organisation that determines:
  • if personal data may be processed, and if so, which pieces;
  • the goal with which the personal data is processed;
  • what the processing entails; and
  • which means may be used for the processing.

As previously indicated, you’re the one responsible for the personal data. When ‘controller’ is named in this agreement, then we mean you, or the entity for which you work, or the owner of the company.

  1. Processor: the person or the organisation that processes data on behalf of the controller, for example via a web application. In this data processing agreement, we, Watermelon, are the processor.
  2. Data processing agreement: an agreement wherein the controller (you) and the processor (us) make agreements about the processing of personal data. This is the agreement you are now reading.

2. Who is who?

If you read ‘you’ or ‘your’ in this data processing agreement, we are referring to you as a customer of the online customer service portal and/or the Watermelon apps, the entity that’s entered an agreement to use the Watermelon platform.

If you read ‘we’, ‘our’, or ‘us’, then we mean Watermelon B.V., headquartered at Europalaan 400, 3526 KS, in Utrecht. Watermelon is registered at the Dutch Chamber of Commerce under number 66844177.

We also offer you connections via the Watermelon platform, for example Facebook, Twitter or Telegram. In Watermelon you can examine or fetch that data. For transparency we inform you that we are legally speaking not the controller of that data under the terms of the GDPR. The controller of those data is the social media platform in question.

3. When does this data processing agreement apply? Can you terminate this agreement in the middle of its duration?

  1. By (digitally) signing this agreement and agreeing to its terms, you agree that it applies immediately.
  2. This data processing agreement is a part of the agreement that we have set up for you to use Watermelon. The agreements are not to be considered separately. That entails that if we end the Watermelon contract, regardless of the reason for its termination, this data

processing agreement ends immediately. It’s not possible to terminate the data processing agreement without terminating the Watermelon contract.

  1. When this agreement is terminated, then we’ll provide you with the personal data we processed, at your request. You must request the personal data immediately after the termination, because we delete the personal data immediately after the termination of the agreement, unless we are mandated by specific laws and regulations to maintain access to specific personal data.

4. Which personal data do we process on your behalf? What are our goals for doing so?

  1. We only process personal data for the goals outlined in the agreement you signed to use Watermelon. This goal is satisfactorily helping customers via a semi-automated customer service portal and the functionalities (https://watermelon.co/product) required in order to do so.
  2. During processing, there are no special categories of personal data involved, such as personal data related to race and ethnicity, unless we have made specific agreements with you in this regard.

5. What do we do to maintain confidentiality of personal data?

  1. We must maintain confidentiality of all the personal data that we process on your behalf. We make the following agreements:
    1.  All our employees handle personal data with confidentiality.
    2. If we use the services of another party for the processing of data, we ensure that this party will process the personal data with the same level of confidentiality that we have agreed upon with you, and we will document this in writing.
  2. We do not need to maintain the confidentiality of the personal data or to maintain their secrecy if,
    1. You have given explicit permission to share specific personal data with others;
    2. if the data subject (for example a customer) has given explicit permission to share this data with others;
    3.  there is a legal mandate to provide personal data to another entity or person, for example the Dutch Ministry.

6. Where is the personal data saved and how do we maintain its security?

  1. We host and process the personal data within the European Economic Area (EEA). We use European servers at Google in Groningen, the Netherlands. A few of the sub processors, as described in article 9, can store data outside of the EEA. The list of sub processors describes this in more detail. These sub processors are registered at Privacy Shield. That means that they meet specific security requirements named by the European Commission to be adequate security requirements. You provide us with permission to save personal data outside of the EEA.
  2. To maintain the security of the personal data, we have taken specific technical and organisational measures. The way in which we implemented these measures is based on the available technology, the cost of implementation, the type of personal data that we process on your behalf and the risks associated with doing so. The security requirements and the technology change continuously. That’s why we make efforts to continuously evaluate our security measures and to strengthen, add to or improve them where necessary.

7. What do we need to do if there is a data breach?

  1.  A data breach means there is evidence of a breach related to personal data where personal data has been lost or where there is possible or probable illegal processing of personal data.
  2. When there is evidence of a data breach regarding the personal data we process on your behalf, we will inform you immediately (within 48 hours after discovery). As the controller, you also must (legally) take specific actions when there is evidence of a data breach. We will support you in the ways that we can for you to carry out these actions.

8. How do we manage the rights of data subjects?

Data subjects have several rights under the GDPR. You are required to grant data subjects these rights. Where possible we will help you, including requests to see, rectify and limit transfer of personal data.

9. Who else has access to the personal data?

  1. In some instances, we use sub processors. These are people or organisations that we decide to utilise to process personal data from Watermelon at our request, for example to send your customers invoices in the mail. You can see the list of sub processors at http://watermelon.co/partners/.
  2.  We have made clear agreements with the sub processors we use about how they need to manage all the personal data. We have made agreements about the technical and organisational measures that they need to take in order to meet the legal and regulatory requirements. We are liable for their fulfilment of these agreements in relation to you as the controller.
  3. By signing this data processing agreement, you give us permission to use sub processors. If we are going to use another sub processor, we will always inform you in advance. If you continue to use Watermelon after being informed of this change, then you have agreed to the continued used of sub processors.

10. Who is liable in terms of damage?

  1. When there are claims by the Data Protection Authority or data subjects, and these claims are the result of you not meeting your agreed upon requirements in this data processing agreement or the agreed upon requirements in the underlying contract, or if you violate laws or regulations, then you indemnify us from all damages related to these claims.
  2. When we are liable for these claims from the Data Protection Authority or data  subjects, then this liability is limited. The agreements made in the contract for the use of Watermelon apply here.

11. What can you do to ensure we are upholding our agreement?

  1. You have the right to (periodically) conduct, or allow others to conduct audits to determine if we are meeting requirements and measures as laid out in this data processing agreement. In this regard we agree to the following:
  2. We will always do our best to meet the agreements made in this data processing agreement. We can conduct an audit with an independent external auditor for this reason. If we have conducted such an audit, you can always make an appointment to examine the report of this external independent auditor. Only in the case of strong arguments that we have not met the terms of this agreement, do you have the right to allow an external auditor to conduct another audit at your own cost. We also have this right if you do not have your own audit report available.
  3. You must inform us in writing a minimum of 14 days in advance that you want to allow an audit to be conducted. If the dates and/or times of the audit do not suit our schedule, then we shall inform you and propose another time and/or date.
  4. You must use an external auditor who is a member of Norea, or an auditor that meets the same quality standards that Norea requires of its members, such as (for example) the secrecy and unbiased independence requirements. If the external auditor you assign does not meet these requirements, we have the right to refuse the audit. The people who conduct the audit must meet the security measures that apply to us. That means that they maintain confidentiality. The result of the audit is also kept confidential. It is not permitted to communicate the occurrence, process or result of the audit with others. We are happy to discuss this with you.
  5. We will comply with audits and will deliver the relevant information in a timely fashion. You are responsible for the costs associated with these audits.

12. How do we handle a dispute?

  1. If we have a dispute, we will do our best to work together to come to a solution. If we can’t come up with a solution, then we will allow the presiding judge in Utrecht (Middle Holland) to decide. We maintain the right – as the judge is granted by the law the right to preside – to present the dispute to this presiding judge.
  2. Dutch laws and regulations apply to this data processing agreement. This is also the case for all agreements, contracts and other legal actions that occur in conjunction with or result from this agreement.

13. What do we do if our agreements conflict with one another?

If there is a conflict between this data processing agreement and the agreement that you have signed for the use of Watermelon, then the contents of this data processing agreement supersede the contents of the other agreement.


Terms and Conditions of Use

Article 1. Definitions and general terms

  1. Who is who? Who am I?
    1. Watermelon: that’s us, the customer service solution from Utrecht.
    2. Client: that’s you, the business owner that wants to use Watermelon Software.
    3. Watermelon software: our unique and specially programmed software that offers customer service solutions.
    4. User: every person that uses Watermelon software.
  2. Before you use the software, you need to read and agree to these terms and conditions.
  3. Updates and new versions of Watermelon software can contain terms and conditions that defer from these terms and conditions of use, you will always need to accept the latest terms and conditions before installing and using the update or new version.
  4. In order to use the Watermelon software you will need to create a Watermelon account.

Article 2. Use of the software

  1. After you have created a digital account, you will receive a username and password that you use to access the Watermelon Software.
  2. You are not permitted to provide third parties with the username and/or password, unless we have provided explicit written permission for this purpose.
  1. We only have access to the your account when you request technical assistance from us. We will ask you for explicit permission each time we access your account.
  2. We will never provide access to your account without your explicit permission.
  3. You are responsible for all activities that occur within your user account and you need to comply with current law and regulations, agreements and requirements regarding the use of the Watermelon Software.
  1. You must inform us immediately in writing of any instance of unauthorised use of a password or account or other suspected infringement on the security of the Software.
  2. You are not permitted to pretend to assume the identity of another user of the Software or provide false information about your identity.
  3. You can not send or save data within Watermelon software that:
    1. is in violation of law and regulations;
    2. is in violation of social norms and/or is improper or unethical;
    3. could or does violate private or personal data of third parties;
    4. may (negatively) affect the functioning of the Software and/or other hardware or systems of Watermelon and/or third parties.
  4. You are not permitted, via the Software, to refer to:
    1. erotic, pornographic, and/or objectionable (image) material
    2. illegal websites / websites offering illegal goods or services.
  5. You can’t use the Watermelon software to send spam.

Article 3. Licence (permission)

  1. We give you a with a limited, revocable, non-exclusive and non-transferable license to use the Software, with the purpose of using the Watermelon Software on one or more devices.
  2. In the instance of an explicit written agreement, you can be granted the right to provide a sub-license to third parties you employ in any manner. The agreement specifies the number of sub-licenses you are allowed to issue.
  3. The aforementioned license is provided for the agreed period and can not be terminated in the interim, unless there is evidence of non-performance.
  4. Reverse engineering and/or further distribution of the Software is not permitted, unless otherwise explicitly agreed upon in writing.
  5. You remain for all time the owner of information and data you send.
  6. You can only use the Watermelon software within and for your own company or organization. You can only use the Watermelon software for the purposes for which the software is intended to be used.

Article 4. Updates

  1. We regularly release updates, for the purposes of resolving known issues and implementing minor improvements in the functionality of the Watermelon Software.
  2. We also release new versions with a certain regularity, for the purpose of implementing significant new functionality.
  3. In consideration of the previous paragraph, Watermelon is not liable for errors that are resolved in updates that you don’t install, regardless of the reason.
  4. We can continue the provision of the Software with a new or updated version of the Software and are not mandated to retain, change or add specific characteristics or functionality of the Software specifically for the Client.

Article 5. Intellectual property rights

  1. All intellectual property rights of the Software remain exclusively with Watermelon or his licensors.
  2. Rights to intellectual property are transferred to the Client only in the instance of explicit and specific notification.
  3. In the instance you infringe upon Watermelon’s intellectual property rights, you shall pay a fine of € 25.000,- per violation, as well as a fine of € 5.000,- per day that the violation continues, to Watermelon.
  4. All intellectual property rights of information sent by the Client, such as copyrights and database rights, are attributable to the Client.
  5. We receive only a limited usage right from you to process the information aforementioned in section 4 for the purpose of providing the services in the execution of the agreement.
  6. All intellectual property rights that are not explicitly or unequivocally transferred to the Client in these Terms and Conditions of Use or in the General Conditions remain with Watermelon or its licensors.

Article 6. Guarantees and Disclaimers

  1. We do not guarantee that the Watermelon software complies with your expectations.
  2. We provide the Software ‘AS-IS’ and to the extent permitted by law with exception of implicit and explicit claims to conformity or correctness.
  3. We guarantee that we are the owner of the Watermelon Software, or that we has a valid license from his suppliers to be able to provide the license as indicated in Article 3.
  4. We guarantee that the Watermelon Software does not contain any viruses, back doors, logic bombs or other harmful programs.
  5. We indemnify you from all claims from third parties with regard to the guarantees named in this Article.
  6. No warranty or guarantee is applicable in the case that the claim from the third party is related to a combination of the Software with components or goods not provided by the Supplier.
  7. We support the latest versions of the following browsers: Firefox, Chrome and Safari.

Article 7. Confidentiality and security

  1. We will not acquire any knowledge from the data sent via the Software, in any form whatsoever, unless you have given explicit written permission for us to do so.
  2. We shall never gain knowledge from the content of the information sent by you and/or Users.
  3. We will make efforts to protect against unauthorised access to the Customer’s personal data via the Watermelon Software.
  4. You shall make efforts to ensure adequate security, protection and backup of the information sent and received using the Software.
  5. The Client shall, on the basis of information provided by us regarding measures to prevent and minimize the effects of malfunctions and defects in the Software, or damage or loss of data or other incidents, inventory the risks for his organisation and where necessary take additional measures. We are prepared to, on your request, cooperate within reason with additional measures you take, in consideration of (financial) terms to be decided.

Article 8. Liability

  1. You are liable for the manner in which information is sent and received via the Watermelon software, especially with regard to personal data.
  2. You are liable for the manner in which the Watermelon software is used within your company and the information resulting from the use, especially with regard to those making use of our software in sub-licence.
  3. We are not liable for damage resulting from you failing to take precautionary measures as outlined in article 7.4.
  4. We are not liable for damage that results from the fact that third parties, as outlined in Article 1.4, alter their services in such a way that these services can no longer work with our software.

Article 9. Force Majeure

  1. Force majeure for Watermelon suspends our (further) obligations stemming from the agreement for as long as the force majeure continues.
  2. When is there evidence of force majeure? Force majeure is understood as every circumstance independent of our will that prevents us from fulfilling the agreement temporarily or permanently, and which neither under the power of law, nor under standards of reasonableness and fairness can be the responsibility of the Supplier, as well as, to the extent not previously understood: malfunctions or failures of internet, the telecommunications infrastructure, SYN flood, network attacks, DoS or DDos attacks, power failures, national unrest, mobilisation, war, traffic blockages, strikes, lockouts, industrial disturbances, stagnation in supply, fire, flood, import and export barriers, and in the instance that Supplier, regardless of the reason, is not able to deliver because of his own suppliers, whereby the Supplier can not be reasonably expected to fulfill the agreement.

Article 10. Ending software access

  1. We have the right to deny access to the Watermelon software when you:
    1. violate these Terms and Conditions of Use;
    2. infringe on laws and regulations using the Software;
    3. infringe on social and/or moral norms using the Software;
    4. use the software in a way that (may) violate(s) or infringes upon private and/or personal data rights of third parties;
    5. can disrupt the functioning of the Software and/or other devices or systems of the Supplier and/or third parties.

Article 11. Applicable Law and Disputes

All legal relationships between Watermelon and the Client wherein these Terms and Conditions of Use are applicable are exclusively governed by Dutch law.

The Court of the District of Middle-Netherlands, location Utrecht, has exclusive jurisdiction over any disputes between Watermelon and the Client.

 


Partner Terms & Conditions

As deposited with the Chamber of Commerce, registry no.  66844177.

Article 1. Definitions and General Provisions

  1. Who is who? Who am I?
    1. Watermelon: that’s us, the customer service solution from Utrecht.
    2. Assigner: that’s you, the entrepreneur who wants to use our software.
    3. User: every person that uses Watermelon software.
    4. Parties: that’s both of us.
    5. Watermelon software: that’s our unique and specially programmed software that offers you customer service solutions.
    6. Intellectual Property Rights: All full worldwide intellectual property rights and similar and/or related rights in the broadest sense, including, but not limited to, (any claims on) (1) trademark rights, (2) trade name rights, (3) copyright, (4) database rights, (5) design rights, (6) patent rights, (7) (technical) know-how and (8) domain names, as well as future intellectual   property rights and petitions to obtain the before mentioned or any rights similar to these.
  2. These Partner Terms & Conditions apply to any agreement between partners, on the basis of which Parties wish to cooperate in any activities involving app-development (linkage and/or integration of apps and/or software), reselling and affiliate marketing, as well as any performance effected by Parties to each other, however framed. The Party previously contracted under these Partner Terms & Conditions, accepts the applicability of these Partner Terms & Conditions to agreements Parties subsequently enter into with each other.
  3. Partner’s General Conditions, under whatever name and in whatever form, are not applicable unless explicitly otherwise agreed upon by both Parties in writing.
  4. Deviation from these Partner Terms & Conditions is only possible when explicitly agreed on in writing. Said deviations are only valid in the context of the agreement which they concern.
  5. Should one or more articles of these General Conditions be annulled, or declared null and void in whole or in part by judicial intervention, the remaining provisions still apply. Parties will by mutual consent draw up new provisions to replace the annulled or voided provisions according to the purpose and purport of the original provisions.
  6. These Partner Terms & Conditions apply to any third party that is involved in the implementation of any instructions on behalf of Watermelon, whether or not in the service of others, or is or may be liable in connection therewith.
  7. If the Software uses services provided by a third party or parties, the General Conditions and License Terms of these parties also apply. Watermelon is not responsible for the services, Conditions and License Terms of the third party or parties in question. Partner agrees to the referred to General Conditions and License Terms of the third party or parties, which on request shall be made available to the Partner by Watermelon.
  8. Parties are independent entities exploiting their respective businesses for their own account and at their own risk. This agreement does in no way constitute an employment contract or agency agreement, or a joint venture or any similar arrangement, unless explicitly agreed otherwise.

Article 2. Intellectual Property, Licensing and Infringement

  1. All Intellectual Property Rights to all of the software (including Software), programming, code, (graphic/web) design, trade (names/-marks), icons, logo’s, texts, analyses, designs, documentation, opinions, reports, quotations, and preparatory material thereof and other materials (hereafter called: the materials) are vested exclusively in Watermelon or its licensers.
  2. The agreement explicitly does not include the transfer of Intellectual Property Rights, unless explicitly agreed otherwise between Parties in writing.
  3. Watermelon hereby grants Partner a non-exclusive, non-transferable and non-sublicensable right to use the Intellectual Property Rights to the materials, solely for the duration, for the purposes and – where applicable – within (the market/(sales) channels in) the territory as described in the agreement. Should the agreement not mention the (market/(sales) channels in) the territory, the territory shall be limited to The Netherlands, taking into account the other provisions in these Partner Terms & Conditions. Watermelon shall be responsible for the coordination and implementation of marketing and sales activities through social media channels, including, but not limited to, Facebook, Twitter and LinkedIn. Partner will submit any (marketing)expressions using (Intellectual Property Rights of) Watermelon for approval prior to publication, in order to guarantee its quality and uniformity.
  4. Partner only acquires the right to use the Intellectual Property Rights to the materials in so far as this is necessary for the execution of the agreement and/or these Partner Terms & Conditions. Apart from this Partner will refrain from any use of Intellectual Property Rights, unless approved in writing  by Watermelon.
  5. Partner hereby guarantees that he shall refrain from doing, or cause to be done, anything which constitutes a breach of the Intellectual Property Rights of Watermelon or of any third party with whom Watermelon has concluded an (exclusive) licence agreement, renders these rights invalid and/or puts the property of the owner and/or Watermelon’s exclusive rights of use to these Intellectual Property Rights at risk.
  6. Partner shall not be permitted to alter or remove any designation or notice relating to the Intellectual Property Rights, including any designations relating to the confidential nature and confidentiality of the materials.
  7. Watermelon is permitted to take technical measures to protect the materials. If Supplier has used technical protection to protect the materials, the Customer is not permitted to remove or to evade this protection.
  8. The rights of use alluded to in paragraph 3 of this article explicitly do not include access to and use of the Software source code.
  9. Any use, reproduction or publication of the materials that is beyond the scope of the agreement or rights of use granted will be regarded as a breach of Watermelon’s Intellectual Property Rights. Partner shall pay Watermelon an immediately payable penalty that is not open to judicial moderation of 10,000 euros per breach, to be increased by a further 500 euros per additional day that the breach continues, without prejudice to the right of Watermelon to obtain compensation for any damage on account of the breach or to take other legal action in order to terminate the breach.
  10. Watermelon does not own details, information or materials sent by Partner or its customers through the Software during use of the Software. Customers therefore bear the responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and the intellectual property rights of third parties to and of the entered data.
  11. Watermelon shall indemnify the Partner against any third-party claims that the Software supplied by Watermelon breaches an intellectual property right of the third party concerned. Partner shall forthwith inform Watermelon in writing about the existence and substance of a claim and leave the handling of the case entirely to Watermelon. For that purpose Partner shall provide Watermelon with the powers of attorney, information and cooperation necessary to defend themselves against these claims.
  12. The indemnification obligation set out in the previous paragraph does not apply if the alleged breach relates to:
    1. Materials made available to Watermelon by Partner for the purpose of use, editing, processing or incorporation, or
    2. Changes in or to the Software made by Partner or upon request from Partner by a third party.
  13. If it should become apparent that any third party is using the Intellectual Property Rights, or in any other way trying to reproduce the Software, materials or (the concept of) Watermelon or to engage in activities which create confusion among the public, or otherwise might be considered to constitute a breach that could damage Parties in their agreement, then Watermelon retains the exclusive right, if Watermelon deems necessary, to take those steps – including legal action –  which might lead to the swiftest possible termination of these wrongful acts. Watermelon is never obliged to do so.
  14. Partner shall, the moment he learns of any activities as outlined above,  immediately notify Watermelon.

Article 3. Executing the Agreement

  1. Parties are required to execute the agreement to the best of their ability, exercising due care and expertise.
  2. Watermelon is obliged to employ its best efforts, but not to guarantee results, unless a result has been explicitly agreed upon in writing and this result has been defined with sufficient certainty.
  3. If and to the extent that proper execution of the agreement so requires, Watermelon has the right to arrange for certain activities to be carried out by third parties.
  4. Partner is obliged to do and allow all that is reasonably necessary for the timely and correct execution of the agreement.
  5. Partner shall ensure that all the details that Watermelon states are necessary, or that Partner can reasonably be expected to understand are necessary to execute the agreement, are provided to Watermelon promptly. If these details are not provided to Watermelon promptly, Watermelon is entitled to suspend the execution of the agreement. Any additional cost resulting from this delay will be charged to Partner.
  6. Upon first request by Watermelon and in any event within 2 (two) weeks of receipt of the request thereof Partner shall provide Watermelon with a complete and accurate list of all End Users covered by the agreement.
  7. The Software has been compiled by Watermelon to the best of its ability. However, Watermelon does not guarantee that the Software will work and be available at all times without any flaws, errors or interruptions or that the information provided is complete, accurate or up to date.
  8. All delivery dates given by Watermelon are approximate and in no case to be regarded as strict deadlines.
  9. Partner is bound to treat any personal information provided by the End User in accordance with the Dutch Personal Data Protection Act (“Wet Bescherming Persoonsgegevens”), the General Data Protection Regulation (“Algemene Verordening Gegevensbescherming”), and any other applicable regulations. Partner is explicitly forbidden to sell and/or provide personal data to third parties, unless explicit prior consent has been obtained from the End User, which Partner can demonstrate.
  10. Partner is responsible for providing the hard- and software, peripherals and connections necessary to enable the execution of the agreement.

 Article 4. Availability and Backup

  1. Watermelon shall make every effort to achieve uninterrupted availability of the Software and to provide access to stored data, but provides no guarantees to that effect.
  2. Watermelon is not bound to provide backups of data entered by Partner to Partner, unless in the event of ‘major data loss’, and only in as far as the requested backups are available to Watermelon, subject to the discretion of Watermelon.
  3. If Watermelon provides a backup to Partner, as referred to in the previous paragraph, Watermelon is entitled to charge a fee.
  4. Watermelon shall make every effort to keep the Software up to date.
  5. If in the opinion of Watermelon the operation of the Software, the network of Watermelon or of third parties is at risk, in particular as a result of excessive sending of data, poorly protected systems or activities of viruses, trojans and similar software, Watermelon is entitled to take all the steps that Watermelon reasonably considers necessary to avert or prevent this risk.

Article 5. Faults

  1. Watermelon has the right to take its service or parts thereof (temporarily) out of service for the purposes of maintenance, modification or improvement of the Software or servers. Watermelon shall endeavour to arrange for such taking out of service to take place as much as possible outside office hours and to notify Partner of the planned taking out of service in good time. Under no circumstances however is Watermelon liable for compensation for damage in connection with such taking out of service.
  2. Watermelon has the right to modify the Software or parts thereof from time to time to improve the functionality and to rectify faults. If a modification leads to a substantial change in functionality, Watermelon shall make every effort to notify Partner in a timely fashion.
  3. In the event of the non-availability of the service, due to faults, maintenance or other causes, Watermelon shall endeavour to inform Partner of the nature and the expected duration of the interruption.

Article 6. Data Storage

  1. Watermelon is obliged to ensure the careful storage of any data from Partner. Unless proven otherwise, Watermelon is deemed to have fulfilled this obligation.
  2. Partner bears the risk regarding damage or loss of data stored by Watermelon or third parties, unless the damage or loss results from intent and/or gross negligence on the part of Watermelon.

Article 7. Pricing and Fees

  1. All prices stated  by Watermelon are exclusive of VAT and any other government-imposed levies.
  2. Watermelon cannot be obliged to keep to offers or prices if Partner can or must reasonably be expected to understand that the offer or price contains an error.
  3. Prices are based on the information provided by Partner upon request. Should this information be changed at a later date, these changes may affect prices. Watermelon is entitled to raise all prices agreed upon with Partner every year effective January 1st by a maximum of 5% (five percent).
  4. Fees between Parties shall be agreed upon in the agreement.
  5. Fees must be paid within 14 (fourteen) days of the invoice date by deposit or bank credit transfer into a bank account indicated by Watermelon.
  6. Watermelon  is entitled to demand advance payment (in full) of the annual fee.
  7. Watermelon is entitled to invoice in instalments.
  8. Partner agrees to Watermelon’s use of electronic invoicing.
  9. If Partner fails to pay within the term set out in paragraph 5 of this article, he shall be legally in default, with no notification of default being required. In case of default on the part of Partner, Watermelon is authorised to charge the statutory interest over the payable amount from the due date until the day of payment in full.
  10. If Partner fails to meet one or more of his obligations towards Watermelon, all reasonable costs incurred to obtain an in- or out-of-court settlement are at the expense of Partner, the extrajudicial costs amounting to a minimum of 15% (fifteen percent) of the payable amount, with a minimum of 100 euros.
  11. Partner is not entitled to any suspending and/or offsetting of his obligations towards Watermelon.

Article 8. Duration and Termination

  1. The agreement is entered into for the period mentioned therein. Should a period not be mentioned in the agreement, the agreement will be deemed to have been entered into for 1 (one) year.
  2. Watermelon is at all times entitled to terminate the agreement prematurely and free of cost, irrelevant of the agreement being entered upon for a fixed or an indefinite period, subject to 3 (three) months advance notice.
  3. Furthermore Watermelon may terminate the agreement prematurely and free of cost if, according to Watermelon, the partnership should no longer be deemed viable.

Article 9. Liability

  1. Watermelon is only liable towards Partner for direct damages resulting from a culpable deficiency in the execution of the agreement on the side of Watermelon or a wrongful act committed by Watermelon.
  2. By ‘direct damage’ shall exclusively be understood:
    1. The reasonable costs of determining the cause and scope of the direct damage;
    2. The reasonable costs incurred to make the defective performance of Watermelon meet the requirements of the agreement, insofar as this defective performance can be attributed to Watermelon;
    3. The reasonable costs incurred to prevent or limit damage, insofar as Partner can show that these costs have led to the limitation of direct damage.
  3.  If it should be determined Watermelon is responsible for the damage suffered by Partner, any liability is limited to the amount paid out in the respective case under the professional or corporate liability insurance held by Watermelon, increased by the excess (“eigen risico”) applicable to this insurance.
  4. If in any given case the insurance does not offer coverage or no payment is made under the insurance, Watermelon’s liability is limited to a maximum of 50% of the invoice value of the specific part of the agreement to which the liability relates.
  5. Watermelon shall never be liable for indirect damage, including: discontinuations of Partner’s normal business operations, lost profit, loss of company data, lost savings, and consequential damage in any way relating to or caused by the execution of the agreement.
  6. Should Partner wish to hold Watermelon liable for an attributable breach of the agreement, Partner should first give Watermelon notice of default and set a reasonable term to rectify the breach.
  7. Watermelon is not liable for any and all damage caused by Watermelon’s having acted on inaccurate or incomplete information provided by or because of Partner.
  8. Partner explicitly indemnifies Watermelon against any claims and/or demands and/or costs on the part of third parties, by whatever name and on any grounds, which have arisen in connection with its own (commercial) activities, including, but not limited to, activities consisting in part of materials, goods or results provided by Watermelon, or as a result of any act or failure to act of Partner and/or his employees and/or other persons or agents engaged by Partner.
  9. Watermelon is not liable for any damage resulting from force majeure.
  10. Watermelon is not bound to any compensation for damage resulting from modifications to the Software.
  11. Watermelon is not liable for damage resulting from the use of third-party services or products, as referred to in Article 1 paragraph 6, by Partner or by the incorporation of these services in the Software.
  12. Partner should be aware that third parties, as referred to in Article 1 paragraph 6, may process personal data. Partner bears the responsibility for investigating this processing of personal data. Watermelon is not liable for the use, processing, alteration, or disclosure of personal data by the third party in question. Partner shall indemnify Watermelon against any claim provided for in this clause.
  13. Should any limitation of liability as described in this article not be found applicable after judicial scrutiny, then the total liability of Watermelon towards Partner, on whatever grounds, for both direct and indirect damage, will be limited to a maximum amount of 10,000 euros (ten thousand euros), including (statutory) interest.
  14. The limitations of liability as stated in these Partner Terms and Conditions do not apply if the damage is due to intent or gross negligence on the part of Watermelon.

Article 10. Force Majeure

  1. Force majeure on the part of Watermelon suspends its (further) obligations under the agreement, as long as the force majeure continues.
  2. Force majeure is understood to mean, in addition to its definition in law and legal precedent: every circumstance beyond the control of Watermelon which temporarily or permanently prevents performance of the agreement and which should not, pursuant to the law and within the standards of reasonableness and fairness, be for the risk of Watermelon, as well as, insofar as not yet included therein, faults or failure of the Internet or the telecommunications infrastructure, SYN flood, network attack, DoS or DDoS attacks, power failures, internal civil commotion, mobilisation, war, obstruction in transport, strike, lockout, business disruptions, delay in supply, fire, flood, import and export impediments and in the event that Watermelon is prevented, for whatever reason, from supplying through its own suppliers, as a result of which fulfilment of the agreement cannot reasonably be required of Watermelon.
  3. Watermelon shall inform Partner as soon as possible of a force majeure situation unless the circumstances render this in fairness impossible.
  4. In the event of partial execution of the agreement by Watermelon upon occurrence of the force majeure situation, Watermelon is entitled to invoice the executed part separately.
  5. If the force majeure situation on the part of Watermelon continues for longer than three months, either one of the Parties may terminate the agreement prematurely, without prior notice and without paying any damages.

Article 11. Complaints

  1. Complaints regarding performed services must, on pain of forfeiture, be submitted in writing and be received by Watermelon within 14 (fourteen) days after the performance of the services.
  2. Complaints regarding invoices must, on pain of forfeiture, be submitted in writing and be received by Watermelon within 14 (fourteen) days after the invoice date.
  3. A complaint does not suspend the Partner’s payment obligation.
  4. If a complaint is well-founded, Watermelon will yet fulfill its obligations as agreed upon, unless this has become demonstrably pointless to Partner. In the last event Partner must provide timely written notice thereof.

Article 12. Confidentiality and Privacy

  1. Parties are obliged not to divulge any confidential information and details that they provide to each other in the context of the agreement.
  2. Information shall be considered confidential unless otherwise stated by the other party or when this is apparent from the nature of the information.
  3. The confidentiality obligation referred to in paragraph 1 does not apply in so far as statutory regulations or professional rules shall impose a duty of disclosure on Watermelon.
  4. In the event of a breach of confidentiality as referred to in this article, Partner shall pay Watermelon an immediately payable penalty that is not open to judicial moderation of 10,000 euros per breach, to be increased by a further 500 euros per additional day that the breach continues, without prejudice to the right of Watermelon to obtain compensation for any damage on account of the breach or to take other legal action in order to terminate the breach.
  5. If Partner sends information to Watermelon, e.g. feedback on an error or suggestions for improvement, Partner thereby grants Watermelon an unrestricted and perpetual right to use this information for the benefit of the Software, unless this information is marked confidential.
  6. Watermelon shall not examine data that Partner stores and/or disseminates through the Software, unless this is necessary for a proper performance of the agreement or Watermelon is obliged to do so in pursuance of a legal provision or by court order. In that case Watermelon shall endeavour to limit the examination of the data as far as possible, to the extent that this lies within its power.
  7. Under the terms of the legislation concerning the processing of personal data (including the Dutch Personal Data Protection Act), Partner has obligations towards third parties, such as the obligation to inform involved parties and give them access to their personal data for inspection, correction and deletion. The responsibility for the observance of these obligations rests fully and solely with Partner. With regard to the processing of personal data, Parties consider Watermelon to be an ‘adapter’ (“bewerker”) as defined by the Dutch Personal Data Protection Act, and/or a ‘processor’ (“verwerker”) as defined by the General Data Protection Regulation.

Article 13. Suspension and Termination

  1. Watermelon is entitled, without being bound to pay out any compensation under the heading thereof and without the need for notice of default, to (partially) suspend the performance of its obligations or terminate the agreement, if: 
    1. Partner is in default with regard to the (timely) observance of one or more of his obligations under the agreement;
    2. It can be expected that Partner may not, in whole, in part and/or in time (be able to) fulfil his obligation towards Watermelon;
    3. Partner has been declared bankrupt, put under guardianship, has been granted suspension of payment or has been declared subject to a statutory debt reorganisation scheme, or if an application for any of these procedures has been lodged;
    4. Partner violates article 2.5 of these Partner Terms & Conditions.
  2. Watermelon is authorised to terminate the agreement if circumstances arise which are of a nature to make execution of the agreement impossible or if, in all reasonableness and fairness, the unaltered continuation of the agreement cannot be expected.
  3. Upon suspension or termination, all obligations of Partner towards Watermelon will become immediately due and payable.
  4. Suspension and/or termination are without prejudice to the payment obligation regarding work already performed. Additionally Watermelon is in this case entitled to claim the following costs from Partner: damage costs, costs and (loss of) interest incurred as a result of Partner’s non-performance, termination fees and loss of income.
  5. In case of suspension of the agreement, Watermelon is entitled to deny Partner access to the Software.

Article 14. Consequences of Termination

  1. If the agreement between Parties is (prematurely) terminated, in whatever manner and for whatever reason, Partner is obliged towards Watermelon to refrain, from the date of termination of the agreement, from all that he is entitled to under the agreement, chiefly including, though not limited to, the right of use of the Intellectual Property Rights.
  2. Upon termination of the agreement Watermelon shall be under no obligation to pay any goodwill or other remuneration, unless this should be in conflict with mandatory law or Partner is entitled to compensation for damage proved and attributable to Watermelon, without prejudice to the limitations of liability as referred to in article 9.
  3. Obligations which of their nature are intended to continue after the termination of the agreement, will continue after termination of this agreement. These obligations include, but are not limited to, obligations relating to intellectual property (article 2), data (article 3, paragraphs 6 and 9), liability (article 9), confidentiality and privacy (article 12) and applicable law (article 18.2).

Article 15. Non-Competition

  1. During the term of the agreement and within 2 (two) years after its termination, Partner will not develop any software which has a functionality and/or purpose similar to the functionality and/or purpose of the Software.  Partner will also, during the term of the agreement and within 2 (two) years after its termination, refrain from any integration, cooperation and/or other (technical) connection with software offered by other suppliers which has a functionality and/or purpose similar to the functionality and/or purpose of the Software.
  2. Within 2 (two) years after the termination of the agreement Partner will offer or deliver no products and/or services which compete with the Software to End Users.
  3. In the event of a breach of paragraph 1 and/or 2 of this article, Partner shall pay Watermelon an immediately payable penalty that is not open to judicial moderation of 10,000 euros per breach, to be increased by a further 500 euros per additional day that the breach continues, without prejudice to the right of Watermelon to obtain compensation for any damage on account of the breach or to take other legal action in order to terminate the breach.
  4. Deviations from the obligations established in this article are only possible if Parties have explicitly agreed in writing.

Article 16. Amending the Agreement and Additional Work

  1. If, during the execution of the agreement, amendments to the agreement should prove necessary to ensure the proper execution thereof, Watermelon will propose to amend the agreement in writing.
  2. If Watermelon has, on request or with the prior consent of Partner, carried out activities outside the scope and contents of the agreement, Partner must pay an additional fee on the basis of actual costs. Watermelon is under no conditions obliged to meet such a request.
  3. Partner accepts that activities or services as stipulated in the previous paragraph may influence the agreed upon or expected completion time of the agreement and the mutual responsibilities of the Parties. The fact that additional work (or the demand for it) arises during execution of the agreement shall never be a ground for Partner to rescind or terminate the agreement.

Article 17. Changes to Partner Terms & Conditions

  1. Watermelon reserves the right to change or to supplement these Partner Terms & Conditions.
  2. Changes also apply in respect of agreements already concluded, subject to a period of 30 days following publication of the change on the Watermelon website.
  3. If Partner does not wish to accept a change in these Partner Terms & Conditions, he can terminate the agreement up to the date on which the new Partner Terms & Conditions come into force by this date at the latest.

Article 18. Final Provisions

  1. These Partner Terms & Conditions shall remain in force if Watermelon changes its name, legal form or ownership.
  2. All legal relations between Watermelon and Partner to which these Partner Terms & Conditions apply are exclusively subject to Dutch law.
  3. Disputes between the Parties arising from the agreement and/or these Partner Terms & Conditions will exclusively be submitted to the competent court in the district of Utrecht in The Netherlands.
  4. A dispute as referred to in the previous paragraph exists when one of the Parties states that this is the case.
  5. These Partner Terms & Conditions become effective from 1 March 2017.

Privacy Statement

Watermelon B.V, hereafter named: Watermelon, takes the importance of careful and correct handling of personal data very seriously. Therefore, Watermelon takes the utmost care when processing and securing personal data.

In the matter of processing personal data, Watermelon meets the demands of the General Data Protection Regulation (GDPR or “Algemene verordening gegevensbescherming”).

In this privacy statement, Watermelon explains which personal data it collects and processes. We also explain why we collect this data and which security measures have been taken to protect it.

Watermelon advises you to read this privacy statement carefully.

Who is who? Who am I?
Assigner= That’s you, the entrepreneur who wants to use our service tool.
Visitor = the visitors to the watermelon.co website.
User = every person that will use our software

Article 1. General

  1. This privacy statement applies to all your visits to the website www.watermelon.co (hereafter named: ‘the Website’) and your use of the Watermelon software (hereafter named: ‘the Software”) by Assigners and Users .
  2. The fact that Watermelon processes personal data is registered with the Dutch Data Protection Authority (“Autoriteit Persoonsgegevens”) under number: 1646183

Article 2. Collection and Use of Personal Data

  1. To provide Visitors with the best possible service, Watermelon needs to save personal data from Visitors.
  2. When you use the Website and the contact form on the Website, Watermelon saves the following personal data:
    1. User data: to increase the usability of the website and specific functionality, including the improvement of our website, we collect the following user data:
      1. IP-address
      2. browser type
      3. date and time of your visit to the Website
      4. the manner in which you as a Visitor use the Website
    2. Contact data: if a Visitor uses the contact form, we collect personal data in order to help the User as best we can. Watermelon also needs information in order to do custom work. The following data is saved when you fill out the contact form:
      1. first and/or last name
      2. email address
      3. phone number
      4. company name
      5. the number of colleagues you enter in the form
      6. the content of the message
    3. Cookies: Watermelon uses cookies on the Website. A cookie is a small file that is saved on your computer or device that’s sent with the browser when you visit pages on the Website.
      1. Watermelon uses cookies to improve the user experience, to improve the ease of use for specific features on the website, and to improve the website.
      2. By accepting cookies, you agree to the use of the various types of cookies that the Website uses. You can turn off cookies in your browser.
      3. The Website also places cookies from the American company Google, as a part of the Google Analytics service. Watermelon uses this service to monitor and report on how the Website is used. Google can provide this information to third parties when Google is required to by law, or to the extent that third parties process the data on behalf of Google.
      4. Watermelon has a data processor agreement with Google. Under the terms of this agreement Google is not permitted to use information gleaned through Google Analytics for other Google services. Watermelon has also shut off the option to forward IP-address through Google via Google Analytics.
      5. Watermelon uses Hotjar cookies, which means Watermelon can follow you through a session. These cookies automatically expire after 365 days. Hotjar cookies do not show an IP-address, only a unique cookie ID.
      6. Find more information about how Watermelon uses cookies in the Cookie policy.

Article 3. Collection and use of Users’ personal data

  1. When you as an individual use the Watermelon Software by starting a conversation with an Assigner’s chatbot, it’s possible that the following personal data is saved:
    1. first and last name
    2. the following data from Facebook Messenger, Twitter or Telegram when you start a conversation with an Assigner’s chatbot through one of these channels
      1. Telegram ID, Twitter ID or Facebook ID
      2. Profile photo
    3. the content of the conversation with the chatbot
    4. the notes of the customer service agent that were made during your conversation, for example the reason why you contacted customer service and the solution you were offered. Information regarding your customer service experience is also stored by Watermelon.
  2. At this time, Watermelon does not use cookies in the Software. Watermelon saves this data for the following reasons:
    1. To guarantee the Assigner a good provision of service and to meet the terms of the agreement with the Assigner. By saving this data, the Assigner can help you as a User more quickly in the instance of an inquiry;
    2. to provide a backup to Assigners which you contacted as a User through the Software in the instance of large data loss, at the discretion of Watermelon.
  3. Watermelon advises Assigners to be transparent about the way in which they use the Software, and to provide their privacy policy, including if personal data is collected and which data this is.
  4. Watermelon advises Users to read this privacy statement in combination with the Assigner’s specific security policy that applies to your use of the Software as a User.
  5. The personal data collected is stored by Watermelon for as long as the Assigner and Watermelon maintain an Agreement. As a User you can exercise your rights under GDPR by contacting the Assigner, who must meet your request. You can read more information in the Data Retention policy.

Article 4. Collection and use of Assigner’s personal data

  1. To ensure a positive provision of service for Assigners, and in order to fulfill the terms of the agreement with the Assigner, Watermelon collects the following personal data from Assigners:
    1. company information
    2. first and last name
    3. email address
    4. telephone number
  2. This data will be saved as long as the agreement lasts. When the agreement is terminated or has concluded, the data will be deleted within thirty (30) days.

Article 5. Collection and use of candidate data

  1. When you apply for a job at Watermelon, we collect data in order to conduct the hiring process. The following data is collected:
    1. First and last name
    2. email address
    3. telephone number
    4. your curriculum vitae (CV)
    5. motivation letter
    6. LinkedIn profile
    7. Indeed profile
  2. This information is stored for a maximum of six months and thereafter deleted, unless you are hired by the company.

Article 6. Newsletter

  1. Watermelon only uses the names and email addresses of Visitors to inform them about special offers and promotions in a newsletter when they have given explicit permission to receive these emails. The newsletter contains a link for Visitors to immediately unsubscribe from the newsletter.
  2. Watermelon only uses the name and the email address of the Assigner to inform him about special offers and promotions in a newsletter when they have given explicit permission to receive these emails. The newsletter contains a link for Visitors to immediately unsubscribe from the newsletter.

Article 7. Provision of Data to Third Parties

  1. With exception of provisions specified earlier in this privacy statement, Watermelon will never provide your data (Assigner data and User data) to third parties without your explicit permission.
  2. Watermelon can utilise third parties that under her supervision, process personal data under the terms of this privacy statement. These processors are still the responsibility of Watermelon and can not conduct any data processing on their own.
  3. Watermelon can deem it necessary to share Assigner or User data with other software providers in order to execute the agreement with the Assigner, or in the case of explicit permission being asked of the Assigner. These software providers are also known as sub-processors. We have an overview of all sub-processors and can make this available upon request.

Article 8. Third-party websites and services

  1. This privacy statement is not applicable to third-party websites that are connected to the Watermelon website by links. Watermelon can not guarantee that these third parties use your personal data in a reliable and/or secure way. Watermelon advises you to carefully read the privacy statement of such third-party websites before using them.
  2. In order to use the Software you need to create an account with Watermelon, and can use social media services such as Facebook, Twitter or Telegram. Thoroughly read the privacy statements of these services (which change frequently) to see what they do with your personal data and how it is processed.

Article 9. Change/deletion of personal data, data portability, complaints and opt-out

  1. You have the right to review, alter, add to, and demand to delete, destroy and protect your personal data, in agreement with the GDPR. This right applies to Visitors, Assigners and Users.
  2. Should you want to exercise the aforementioned rights, or should you have questions regarding the use of the aforementioned rights, or about this privacy statement, you can contact Watermelon via email compliance@watermelon.co.
  3. When you have given explicit permission for the collection of personal data, you can also revoke this permission. When you revoke this permission you agree to the fact that this can have negative effects on the ability of Watermelon to provide service or in the usability of the website. When the Assigner revokes his permission to process personal data, use of Watermelon’s service is no longer possible. This is due to the fact that Watermelon can not guarantee that no personal data will be processed because Watermelon doesn’t have access to the data collected by the chatbot on behalf of the Assigner.

Article 10. Security

  1. To protect the Website and the Software, Watermelon uses a secure and encrypted SSL connection. This is indicated by the acronym ‘https’ in the URL displayed in the address bar of your browser.

Article 11. Changes to the Privacy Statement

  1. Watermelon has the right to change this privacy statement.
  2. In the instance that Watermelon exercises the right to change this privacy statement, these changes will be directly applied to this statement. Watermelon will make you aware of this change during a three-month period by providing a notification on her website, as well as sending you an email.

On this website and in using the Watermelon software (hereafter named: ‘the Software’), Watermelon B.V (hereafter named: Watermelon  uses cookies.

A cookie is a simple, small file sent with the page of this website and the Software and saved on the hard drive of your computer. The information saved in the cookie can be sent back to the Watermelon servers again on your next visit.

Watermelon is happy to explain what this means for you.

Functional Cookies

Watermelon uses cookies to record your preferences, so that Watermelon  doesn’t need to keep asking for them. Watermelon also uses cookies to recognise you as a logged-in visitor, so that you don’t need to continuously log in again. In addition, Watermelon uses load balancing cookies, which distributes visits across different servers to ensure the quickest possible website load time.

Tracking Cookies

Watermelon uses so-called tracking cookies to build a profile about you. The profile is used to adjust ads to your profile, so these will be as relevant to you as possible.

The tracking cookies can be requested by Watermelon when you visit another website in our network. This way Watermelon can figure out that apart from this website, you have also visited (an) other website(s).

Retargeting Cookies

Watermelon uses so-called retargeting cookies from Google AdSense, whereby Watermelon  can show you advertisements on third-party websites that are related to your earlier visits to this website or use of the Software.

Social Media Buttons

This website uses buttons to promote and share web pages on social networks, such as Facebook, Twitter, Google+ and LinkedIn. These buttons place cookies.

The buttons function with code originating from these social networks. Watermelon  does not have any influence on this code.

Thoroughly read the privacy policies of these social media networks (which can change frequently) to understand what they do with your (personal) data that they receive from these cookies.

Watermelon does not have any influence on what these social media networks do with your (personal) data.

Social Media Pixels

We want to know what you’re looking for so we can provide the most relevant ads. We use social media pixels from social networks so you don’t see irrelevant ads from us. These cookies originate from Facebook, Twitter and LinkedIn.

The pixels work by code which is generated by these social networks – Watermelon does not have an influence on the structure of this code.

Read the privacy statements of these social media networks (which change regularly) in order to understand what happens with your (personal) data that they receive via these cookies.

Watermelon does not have an influence over what these social media networks do with your (personal) data.

Google Analytics

This website places a cookie from the American company Google as a part of the “Google Analytics” service.

Hotjar

We use Hotjar cookies from the American company Hotjaras part of the ‘Hotjar’ service.

Right to Request Data Access, Correction and Deletion

You have the right to request to see, to correct or to delete your personal data. To do this, send an e-mail to compliance@watermelon.co

To avoid misuse of this right, we can ask you to adequately identify yourself.

You can delete cookies using the settings in your browser. More information regarding turning on or off the placement of cookies or the deletion of cookies can be found in the instructions and/or by using the Help-function in your browser.

Read more information about cookies (in Dutch): www.consumentenbond.nl/internet-privacy/wat-zijn-cookies


Data Security

Overview

At Watermelon we take the privacy of your data very seriously and we work as hard as we can to protect it. Watermelon runs daily checks and tests to make sure your data is safe.

Watermelon recommends you read this security policy carefully, as well as our general conditions and privacy policy.

Our Team

The infrastructure and security team of Watermelon includes people who are experienced in software development and its exploitation and protection.

Watermelon employees do not have access to the contents of Assigner or User data. If for any reason Watermelon needs to access your data, we will only do so after obtaining the Assigner’s explicit permission.

Circumstances may arise which make it necessary for Watermelon employees to access the systems which store your data, for example in the instance of changing account details on behalf of the Assigner. If so, Watermelon will always make sure employees do not access your data directly.

All Watermelon employees receive periodic security training and are asked to read a security manual which they then sign to confirm it has been carefully read. This manual extensively discusses the subjects of data security, availability and reliability.

Servers

Watermelon doesn’t have its own physical servers, routers or DNS servers. These servers and routers are in the cloud and are hosted at Google in Groningen and Belgium. This organization meets the following standards:

  1. SSAE16 / ISAE 3402 Type II
    1. SOC 1
    2. SOC 2
    3. SOC 3
  2. ISO 27001
  3. ISO 27017
  4. ISO 27018
  5. FedRAMP ATO for Google App Engine
  6. PCI DSS v3.2

Backup and Service Levels

At Watermelon the continuity of our service is one of our top priorities. Watermelon safeguards your data by means of a routine backup procedure.

First we make backups of all your saved data at least once every day. Backups are only saved offsite.

Your data is spread out over several data centres, which means your data will still be safe even if one of the data centres fails.

Watermelon saves all backups for a maximum period of 90 days. Backups over 90 days old will be destroyed.

In case of emergency, backups can be used for contingency procedures, utilising buildings, infrastructure and hardware owned by third parties, with whom Watermelon has concluded an agreement, as fall-back facilities.

Watermelon aims for an availability rate of 99,9% or higher. Check out the current status of Watermelon’s services at https://status.watermelon.co/ .

Data

Your data is stored at locations which store details of several customers. We don’t offer individual data storage locations.

Not all of your data is stored encrypted – important data like passwords is encrypted, but in order for the chatbot to function well, we need to provide it with data. We use Machine Learning and also display the data in our statistics module. The chatbot only learns from anonymised textual data and not from personal data.

We use the Bcrypt protocol for data encryption.

Watermelon servers are located in the Netherlands and in Belgium. Physical access to the computer centres can only be obtained after authorisation has been granted. The computer centre’s security meets every standard of security, management and continuity to be expected from a professional computer centre. Watermelon has concluded agreements with the aforementioned computer centres to the effect that customer data, including backups, will always be stored in The Netherlands or in Belgium.

Watermelon further ensures that customers can at no time access each other’s data.

Data Transfer and Access Levels

All data sent to and from Watermelon is encrypted. Watermelon uses an SSL connection.

All of Watermelon’s services are kept safe using a Secure Socket Layer (https). Watermelon uses two-factor authentication and strict password policies for GitHub and Google software to make sure Watermelon services are protected.

Watermelon uses access levels for employees with access to Watermelon software. These levels determine access to payments and/or customer data and/or the ability to send messages.

Audit

Watermelon regularly has an audit conducted by an independent external party in order to guarantee that it complies with this security policy.

Security Log

Watermelon keeps a detailed log of the security, monitoring, availability, accessibility and other statistics concerning services offered by Watermelon.


Data security breach

Notify us of a data security breach

Notification of data breach

In the instance of a breach of data security, Watermelon will inform you as soon as possible about any and all unauthorised access to your data. Watermelon has breach preparedness protocols and policies in order to efficiently handle issues in the instance of a data breach. 

When we become aware of or are notified of a data breach, we will take the necessary measures within 72 hours. Notification fof the data breach will occur in the following format: 

  1. description of the breach;
  2. date of the breach;
  3. what happened to what data;
  4. which group(s) is/are affected;
  5. the consequences of the breach;
  6. measures that must be taken in order to resolve the data security breach and to prevent it in the future. 

Watermelon B.V. is registered at the Dutch Data Protection Authority under number  1646183.

Do you have questions about this security policy? Send us an email: contact@watermelon.co 


Data retention

All of our Clients are subject to the same data retention policies regardless of the plan or package to which they subscribe.

The conversation data can only be deleted manually by a user of the Watermelon platform who is authorized by the Client. All of the data that has been learned by the chatbot, or data that has been provided as input, can only be deleted manually by a Client’s Watermelon user. You have the option to edit the frequency with which data will be automatically deleted from the Watermelon platform. All data can be deleted. We do not keep backups longer than 90 days.

In the instance that an End User submits a request to see, change or delete his or her data, the Client is mandated to complete this request satisfactorily. When the contractual agreement between Watermelon and the Client ends, the data can be deleted or transferred at the request of the Client.

What happens when I delete my data?

If you have deleted your conversation data, Watermelon starts an automatic deletion process where the data is deleted from all of our servers and backups. Once the data has been deleted, it is impossible to recover.

What happens when I delete my account?

It can take up to 30 days before your account has been completely deleted.

Do you have backups of my data?

After a complete deletion of data as indicated above, we do not have backups of your data or other instances of data that would suggest, indicate or lead to your data.


API Terms and Conditions

Thank you for using Watermelon’s API, other developer services, and associated software (collectively, “API”). By accessing or using our API, you are agreeing to the terms below. If there is a conflict between these terms and additional terms applicable to a given API, the additional terms will control for that conflict. Collectively, we refer to the terms below, any additional terms, terms within the accompanying API documentation, and any applicable policies and guidelines as the “Terms.” You agree to comply with the Terms and that the Terms control your relationship with us. So please read all the Terms carefully. If you use the API as an interface to, or in conjunction with other Watermelon products or services, then the terms for those other products or services also apply.

Under the Terms, “Watermelon” means Watermelon B.V., with our office at Europalaan 400, 3526KS Utrecht, Utrecht, The Netherlands, unless set forth otherwise in additional terms applicable for a given API. We may refer to “Watermelon” as “we”, “our”, or “us” in the Terms.

Section 1: Account and Registration

a. Accepting the Terms

You may not use the API and may not accept the Terms if (a) you are not of legal age to form a binding contract with Watermelon, or (b) you are a person barred from using or receiving the API under the applicable laws of the Netherlands or other countries including the country in which you are resident or from which you use the API.

b. Entity Level Acceptance

If you are using the API on behalf of an entity, you represent and warrant that you have authority to bind that entity to the Terms and by accepting the Terms, you are doing so on behalf of that entity (and all references to “you” in the Terms refer to that entity).

c. Registration

In order to access certain API you may be required to provide certain information (such as identification or contact details) as part of the registration process for the API, or as part of your continued use of the API. Any registration information you give to Watermelon will always be accurate and up to date and you’ll inform us promptly of any updates.

Section 2: Using Our API

a. Your End Users

You will require your end users to comply with (and not knowingly enable them to violate) applicable law, regulation, and the Terms.

b. Compliance with Law, Third Party Rights, and Other Watermelon Terms of Service

You will comply with all applicable law, regulation, and third party rights (including without limitation laws regarding the import or export of data or software, privacy, and local laws). You will not use the API to encourage or promote illegal activity or violation of third party rights. You will not violate any other terms of service with Watermelon (or its affiliates).

c. Permitted Access

You will only access (or attempt to access) an API by the means described in the documentation of that API. If Watermelon assigns you developer credentials (e.g. access tokens), you must use them with the applicable API. You will not misrepresent or mask either your identity or your API Client’s identity when using the API or developer accounts.

d. API Limitations

Watermelon sets and enforces limits on your use of the API (e.g. limiting the number of API requests that you may make or the number of users you may serve), in our sole discretion. You agree to, and will not attempt to circumvent, such limitations documented with each API. If you would like to use any API beyond these limits, you must obtain Watermelon’s express consent (and Watermelon may decline such request or condition acceptance on your agreement to additional terms and/or charges for that use). To seek such approval, contact the relevant Watermelon API team for information (e.g. by contacting your Customer Success Manager).

e. Feedback

If you provide feedback or suggestions about our API, then we (and those we allow) may use such information without obligation to you.

f. Non-Exclusivity

The Terms are non-exclusive. You acknowledge that Watermelon may develop products or services that may compete with the API Clients or any other products or services.

Section 3: Your API Clients

a. API Clients and Monitoring

The API are designed to help you enhance your websites and applications (“API Client(s)”). YOU AGREE THAT WATERMELON MAY MONITOR USE OF THE API TO ENSURE QUALITY, IMPROVE WATERMELON PRODUCTS AND SERVICES, AND VERIFY YOUR COMPLIANCE WITH THE TERMS. This monitoring may include Watermelon accessing and using your API Client, for example to identify security issues that could affect Watermelon or its users. You will not interfere with this monitoring. Watermelon may use any technical means to overcome such interference. Watermelon may suspend access to the API by you or your API Client without notice if we reasonably believe that you are in violation of the Terms.

b. Security

You will use commercially reasonable efforts to protect user information collected by your API Client, including personally identifiable information (“PII”), from unauthorized access or use and will promptly report to your users any unauthorized access or use of such information to the extent required by applicable law.

c. Ownership

Watermelon does not acquire ownership in your API Clients, and by using our API, you do not acquire ownership of any rights in our API or the content that is accessed through our API.

d. User Privacy and API Clients

You will comply with all applicable privacy laws and regulations including those applying to PII. You will provide and adhere to a privacy policy for your API Client that clearly and accurately describes to users of your API Client what user information you collect and how you use and share such information (including for advertising) with Watermelon and third parties.

Section 4: Prohibitions and Confidentiality

a. API Prohibitions

When using the API, you may not (or allow those acting on your behalf to):

  1. Sublicense an API for use by a third party. Consequently, you will not create an API Client that functions substantially the same as the API and offer it for use by third parties.
  2. Perform an action with the intent of introducing to Watermelon products and services any viruses, worms, defects, Trojan horses, malware, or any items of a destructive nature.
  3. Defame, abuse, harass, stalk, or threaten others.
  4. Interfere with or disrupt the API or the servers or networks providing the API.
  5. Promote or facilitate unlawful online gambling or disruptive commercial messages or advertisements.
  6. Reverse engineer or attempt to extract the source code from any API or any related software, except to the extent that this restriction is expressly prohibited by applicable law.
  7. Use the API for any activities where the use or failure of the API could lead to death, personal injury, or environmental damage (such as the operation of nuclear facilities, air traffic control, or life support systems).
  8. Use the API to process or store any data that is subject to the International Traffic in Arms Regulations maintained by the U.S. Department of State.
  9. Remove, obscure, or alter any Watermelon terms of service or any links to or notices of those terms.

b. Confidential Matters

  1. Developer credentials (such as passwords, tokens, and client IDs) are intended to be used by you and identify your API Client. You will keep your credentials confidential and make reasonable efforts to prevent and discourage other API Clients from using your credentials. Developer credentials may not be embedded in open source projects.
  2. Our communications to you and our API may contain Watermelon confidential information. Watermelon confidential information includes any materials, communications, and information that are marked confidential or that would normally be considered confidential under the circumstances. If you receive any such information, then you will not disclose it to any third party without Watermelon’s prior written consent. Watermelon confidential information does not include information that you independently developed, that was rightfully given to you by a third party without confidentiality obligation, or that becomes public through no fault of your own. You may disclose Watermelon confidential information when compelled to do so by law if you provide us reasonable prior notice, unless a court orders that we not receive notice.

Section 5: Content

a. Content Accessible Through our API

Our API contains some third party content (such as text, images, videos, audio, or software). This content is the sole responsibility of the person that makes it available. We may sometimes review content to determine whether it is illegal or violates our policies or the Terms, and we may remove or refuse to display content. Finally, content accessible through our API may be subject to intellectual property rights, and, if so, you may not use it unless you are licensed to do so by the owner of that content or are otherwise permitted by law. Your access to the content provided by the API may be restricted, limited, or filtered in accordance with applicable law, regulation, and policy.

b. Submission of Content

Our API allows the submission of content. Watermelon does not acquire any ownership of any intellectual property rights in the content that you submit to our API through your API Client, except as expressly provided in the Terms. For the sole purpose of enabling Watermelon to provide, secure, and improve the API (and the related service(s)) and only in accordance with the applicable Watermelon privacy policy, you give Watermelon a perpetual, irrevocable, worldwide, sublicensable, royalty-free, and non-exclusive license to Use content submitted, posted, or displayed to or from the API through your API Client. “Use” means use, host, store, modify, communicate, and publish. Before you submit content to our API through your API Client, you will ensure that you have the necessary rights (including the necessary rights from your end users) to grant us the license.

c. Retrieval of content

When a user’s non-public content is obtained through the API, you may not expose that content to other users or to third parties without explicit opt-in consent from that user.

d. Data Portability

Watermelon supports data portability. For as long as you use or store any user data that you obtained through the API, you agree to enable your users to export their equivalent data to other services or applications of their choice in a way that’s substantially as fast and easy as exporting such data from Watermelon products and services, subject to applicable laws, and you agree that you will not make that data available to third parties who do not also abide by this obligation.

e. Prohibitions on Content

Unless expressly permitted by the content owner or by applicable law, you will not, and will not permit your end users or others acting on your behalf to, do the following with content returned from the API:

  1. Scrape, build databases, or otherwise create permanent copies of such content, or keep cached copies longer than permitted by the cache header;
  2. Copy, translate, modify, create a derivative work of, sell, lease, lend, convey, distribute, publicly display, or sublicense to any third party;
  3. Misrepresent the source or ownership; or
  4. Remove, obscure, or alter any copyright, trademark, or other proprietary rights notices; or falsify or delete any author attributions, legal notices, or other labels of the origin or source of material.

Section 6: Brand Features; Attribution

a. Brand Features

“Brand Features” is defined as the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party. Except where expressly stated, the Terms do not grant either party any right, title, or interest in or to the other party’s Brand Features. All use by you of Watermelon’s Brand Features (including any goodwill associated therewith) will inure to the benefit of Watermelon.

b. Attribution

You agree to display any attribution(s) required by Watermelon as described in the documentation for the API. Watermelon hereby grants to you a nontransferable, nonsublicenseable, nonexclusive license while the Terms are in effect to display Watermelon’s Brand Features for the purpose of promoting or advertising that you use the API.

c. Publicity

You will not make any statement regarding your use of an API which suggests partnership with, sponsorship by, or endorsement by Watermelon without Watermelon’s prior written approval.

d. Promotional and Marketing Use

In the course of promoting, marketing, or demonstrating the API you are using and the associated Watermelon products, Watermelon may produce and distribute incidental depictions, including screenshots, video, or other content from your API Client, and may use your company or product name. You grant us all necessary rights for the above purposes.

Section 7: Privacy and Copyright Protection

a. Watermelon Privacy Policies

By using our API, Watermelon may use submitted information in accordance with our Privacy Policy.

Section 8: Termination

a. Termination

You may stop using our API at any time with or without notice. Further, if you want to terminate the Terms, you must provide Watermelon with prior written notice and upon termination, cease your use of the applicable API. Watermelon reserves the right to terminate the Terms with you or discontinue the API or any portion or feature or your access thereto for any reason and at any time without liability or other obligation to you.

b. Your Obligations Post-Termination

Upon any termination of the Terms or discontinuation of your access to an API, you will immediately stop using the API, cease all use of the Watermelon Brand Features, and delete any cached or stored content that was permitted by the cache header under Section 5. Watermelon may independently communicate with any account owner whose account(s) are associated with your API Client and developer credentials to provide notice of the termination of your right to use an API.

c. Surviving Provisions

When the Terms come to an end, those terms that by their nature are intended to continue indefinitely will continue to apply, including but not limited to: Sections 4b, 5, 8, 9, and 10.

Section 9: Liability for our API

a. WARRANTIES

EXCEPT AS EXPRESSLY SET OUT IN THE TERMS, NEITHER WATERMELON NOR ITS SUPPLIERS OR DISTRIBUTORS MAKE ANY SPECIFIC PROMISES ABOUT THE API. FOR EXAMPLE, WE DON’T MAKE ANY COMMITMENTS ABOUT THE CONTENT ACCESSED THROUGH THE API, THE SPECIFIC FUNCTIONS OF THE API, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WE PROVIDE THE API “AS IS”.

SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. EXCEPT AS EXPRESSLY PROVIDED FOR IN THE TERMS, TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES, GUARANTEES, CONDITIONS, REPRESENTATIONS, AND UNDERTAKINGS.

b. LIMITATION OF LIABILITY

WHEN PERMITTED BY LAW, WATERMELON, AND WATERMELON’S SUPPLIERS AND DISTRIBUTORS, WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR DATA; FINANCIAL LOSSES; OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES.

TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF WATERMELON, AND ITS SUPPLIERS AND DISTRIBUTORS, FOR ANY CLAIM UNDER THE TERMS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT YOU PAID US TO USE THE APPLICABLE API (OR, IF WE CHOOSE, TO SUPPLYING YOU THE API AGAIN) DURING THE SIX MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.

IN ALL CASES, WATERMELON, AND ITS SUPPLIERS AND DISTRIBUTORS, WILL NOT BE LIABLE FOR ANY EXPENSE, LOSS, OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.

c. Indemnification

Unless prohibited by applicable law, if you are a business, you will defend and indemnify Watermelon, and its affiliates, directors, officers, employees, and users, against all liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any allegation or third-party legal proceeding to the extent arising from:

  1. your misuse or your end user’s misuse of the API;
  2. your violation or your end user’s violation of the Terms; or
  3. any content or data routed into or used with the API by you, those acting on your behalf, or your end users.

Section 10: General Provisions

a. Modification

We may modify the Terms or any portion to, for example, reflect changes to the law or changes to our API. You should look at the Terms regularly. We’ll post notice of modifications to the Terms within the documentation of each applicable API and/or to our website. Changes will not apply retroactively and will become effective no sooner than 30 days after they are posted. But changes addressing new functions for an API or changes made for legal reasons will be effective immediately. If you do not agree to the modified Terms for an API, you should discontinue your use of that API. Your continued use of the API constitutes your acceptance of the modified Terms.

b. General Legal Terms

We each agree to contract in the English language. If we provide a translation of the Terms, we do so for your convenience only and the English Terms will solely govern our relationship. The Terms do not create any third party beneficiary rights or any agency, partnership, or joint venture. Nothing in the Terms will limit either party’s ability to seek injunctive relief. We are not liable for failure or delay in performance to the extent caused by circumstances beyond our reasonable control. If you do not comply with the Terms, and Watermelon does not take action right away, this does not mean that Watermelon is giving up any rights that it may have (such as taking action in the future). If it turns out that a particular term is not enforceable, this will not affect any other terms. The Terms are the entire agreement between you and Watermelon relating to its subject and supersede any prior or contemporaneous agreements on that subject. For information about how to contact Watermelon, please visit our contact page.

Except as set forth below: (i) the laws of The Netherlands, will apply to any disputes arising out of or related to the Terms or the API and (ii) ALL CLAIMS ARISING OUT OF OR RELATING TO THE TERMS OR THE API WILL BE LITIGATED EXCLUSIVELY IN THE  COURT OF UTRECHT, UTRECHT THE NETHERLANDS, AND YOU AND WATERMELON CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.


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