Partner Terms & Conditions Watermelon Messenger B.V.
As deposited with the Chamber of Commerce, registry no. 66844177.
Article 1. Definitions and General Provisions
- In these Partner Terms & Conditions the following is taken to mean:
- Watermelon: The private limited liability company Watermelon Messenger B.V., registered at Utrecht, The Netherlands.
- Partner: The legal or natural person who, acting in the course of his profession or business, enters into an agreement with Watermelon.
- End User: any professional customer/private end user of the (application in/to which) the Software (has been integrated/added).
- Parties: Both Watermelon and Partner.
- Software: The Watermelon Messenger online application.
- 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 beforementioned or any rights similar to these.
- 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.
- Partner’s General Conditions, under whatever name and in whatever form, are not applicable unless explicitly otherwise agreed upon by both Parties in writing.
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- The agreement explicitly does not include the transfer of Intellectual Property Rights, unless explicitly agreed otherwise between Parties in writing.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- The indemnification obligation set out in the previous paragraph does not apply if the alleged breach relates to:
- Materials made available to Watermelon by Partner for the purpose of use, editing, processing or incorporation, or
- Changes in or to the Software made by Partner or upon request from Partner by a third party.
- 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.
- Partner shall, the moment he learns of any activities as outlined above, immediately notify Watermelon.
Article 3. Executing the Agreement
- Parties are required to execute the agreement to the best of their ability, exercising due care and expertise.
- 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.
- 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.
- Partner is obliged to do and allow all that is reasonably necessary for the timely and correct execution of the agreement.
- 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.
- 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.
- 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.
- All delivery dates given by Watermelon are approximate and in no case to be regarded as strict deadlines.
- 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.
- 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
- 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.
- 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.
- If Watermelon provides a backup to Partner, as referred to in the previous paragraph, Watermelon is entitled to charge a fee.
- Watermelon shall make every effort to keep the Software up to date.
- 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
- 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.
- 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.
- 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
- Watermelon is obliged to ensure the careful storage of any data from Partner. Unless proven otherwise, Watermelon is deemed to have fulfilled this obligation.
- 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
- All prices stated by Watermelon are exclusive of VAT and any other government-imposed levies.
- 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.
- 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).
- Fees between Parties shall be agreed upon in the agreement.
- 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.
- Watermelon is entitled to demand advance payment (in full) of the annual fee.
- Watermelon is entitled to invoice in instalments.
- Partner agrees to Watermelon’s use of electronic invoicing.
- 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.
- 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.
- Partner is not entitled to any suspending and/or offsetting of his obligations towards Watermelon.
Article 8. Duration and Termination
- 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.
- 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.
- 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
- 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.
- By ‘direct damage’ shall exclusively be understood:
- The reasonable costs of determining the cause and scope of the direct damage;
- 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;
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- Watermelon is not liable for any damage resulting from force majeure.
- Watermelon is not bound to any compensation for damage resulting from modifications to the Software.
- 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.
- 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.
- 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.
- 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
- Force majeure on the part of Watermelon suspends its (further) obligations under the agreement, as long as the force majeure continues.
- 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.
- Watermelon shall inform Partner as soon as possible of a force majeure situation unless the circumstances render this in fairness impossible.
- 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.
- 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
- 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.
- 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.
- A complaint does not suspend the Partner’s payment obligation.
- 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
- Parties are obliged not to divulge any confidential information and details that they provide to each other in the context of the agreement.
- Information shall be considered confidential unless otherwise stated by the other party or when this is apparent from the nature of the information.
- 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.
- 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.
- 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.
- 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.
- 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
- 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:
- Partner is in default with regard to the (timely) observance of one or more of his obligations under the agreement;
- It can be expected that Partner may not, in whole, in part and/or in time (be able to) fulfil his obligation towards Watermelon;
- 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;
- Partner violates article 2.5 of these Partner Terms & Conditions.
- 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.
- Upon suspension or termination, all obligations of Partner towards Watermelon will become immediately due and payable.
- 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.
- In case of suspension of the agreement, Watermelon is entitled to deny Partner access to the Software.
Article 14. Consequences of Termination
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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
- Watermelon reserves the right to change or to supplement these Partner Terms & Conditions.
- 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.
- 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
- These Partner Terms & Conditions shall remain in force if Watermelon changes its name, legal form or ownership.
- All legal relations between Watermelon and Partner to which these Partner Terms & Conditions apply are exclusively subject to Dutch law.
- 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.
- A dispute as referred to in the previous paragraph exists when one of the Parties states that this is the case.
- These Partner Terms & Conditions become effective from 1 March 2017.