Terms and Conditions of Use Watermelon Messenger B.V.
Article 1. Definitions and General Terms
- In these Terms and Conditions of Use, the following is taken to mean:
- Supplier: Watermelon Messenger B.V.
- The Customer: The company that has entered into an agreement with the Supplier for the use of the Software, as well as all third parties that are employed by or for the Customer and therein use the Software.
- Software: the online service used by the End User to send messages using (mobile) internet to the customer service of the Customer.
- End User: Anyone with whom the Customer communicates by means of the Software.
- Before making use of the Software, the Customer needs to read and agree to the Terms and Conditions of Use below.
- Different Terms and Conditions from the ones outlined here might apply to updates and new versions of the Software. The Customer needs to accept the new terms before the update and/or new version can be installed.
- To use the Software the Customer needs to create an account at one or more of the following services:
- Facebook messenger;
Article 2. Use of the Software
- After the agreement is made, the Supplier provides the Customer with a username and password to make use of the Software.
- The Customer is not permitted to provide third parties with the username and/or password, unless the Supplier has previously provided explicit written permission for this purpose.
- The Supplier only has access to the Customer’s account when the Customer requests technical assistance from the Supplier. The Customer will be asked for explicit permission each time the Supplier accesses the Customer’s account.
- Supplier shall not provide access to the Customer’s account without prior authorisation from the Customer.
- The Customer is responsible for all activities that occur within his user account and needs to comply with current law and regulations, Agreements and requirements regarding the use of the Software.
- The Customer shall inform the Supplier immediately in writing of any instance of unauthorised use of a password or account or other suspected infringement on the security of the Software.
- The Customer is not permitted to pretend to assume the identity of another user of the Software or provide false information about his identity.
- The Customer is not permitted to send and/or save data using the Software which:
- Is in violation of law and regulations;
- Is in violation of moral and/or social norms;
- Is (or may be) in violation of personal information and/or personal data rights of third parties;
- May affect the functioning of the Software and/or other hardware or systems of Supplier and/or third parties.
- The Customer is not permitted, via the Software, to refer to:
- Erotic, pornographic, and/or objectionable (image) material;
- Illegal websites / websites offering illegal goods or services.
- The Customer is not permitted to use the Software to send spam.
Article 3. License
- Supplier provides the Customer with a limited, revokable, non-exclusive and non-transferable license to use the Software, with the purpose of using the Software on one or more devices.
- In the instance of an explicit written agreement, the Customer is granted the right to provide a sub-license to third parties employed by the Customer in any manner. The agreement specifies the number of sub-licenses the Customer can issue.
- The aforementioned license is provided for the agreed period and can not be terminated in the interim, unless there is evidence of non-performance.
- Reverse engineering and/or further distribution of the Software is not permitted, unless otherwise explicitly agreed upon in writing.
- The Customer remains for all time the owner of information and data sent by him.
- The Customer can use the Software only for and on behalf of his own company or organisation and only to the extent necessary for the intended use.
Article 4. Updates
- Supplier regularly releases updates, for the purposes of resolving known issues and implementing minor improvements in the functionality of the Software.
- Supplier releases with a certain regularity new versions, for the purpose of implementing significant new functionality.
- In consideration of the previous paragraph, the Supplier is not liable for errors that are resolved in updates which are not installed by the Customer, regardless of the reason.
- Supplier can continue the provision of the Software with a new or updated version of the Software. Supplier is not mandated to retain, change or add specific characteristics or functionality of the Software specifically for the Customer.
Article 5. Intellectual Property Rights
- All intellectual property rights of the Software remain exclusively with the Supplier or his licensors.
- Rights to intellectual property are transferred to the Customer only in the instance of explicit and specific notification..
- In the instance the Customer infringes upon the intellectual property rights of Supplier, the Customer shall pay a fine of € 25.000,- per violation, as well as a fine of € 5.000,- per day that the violation continues, to the Supplier.
- All intellectual property rights of information sent by the Customer, such as copyrights and database rights, are attributable to the Customer.
- Supplier receives only a limited usage right from the Customer to process the information aforementioned in section 4 for the purpose of providing the services in the execution of the agreement.
- All intellectual property rights that are not explicitly or unequivocally transferred to the Customer in these Terms and Conditions of Use or in the General Conditions remain with the Supplier or its licensors.
Article 6. Guarantees and Disclaimer
- Supplier gives no guarantees that the Software complies with expectations.
- Supplier provides the Software ‘AS-IS’ and to the extent permitted by law with exception of implicit and explicit claims to conformity or correctness.
- Supplier guarantees that he is owner of the Software, or that he has a valid license from his suppliers to be able to provide the license as indicated in Article 3.
- Supplier guarantees that Software does not contain any viruses, back doors, logic bombs or other harmful programs.
- Supplier indemnifies the Customer from all claims from third parties with regard to the guarantees named in this Article.
- 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.
Article 7. Confidentiality and Security
- Supplier will not acquire any knowledge from the data sent via the Software, in any form whatsoever, unless the Customer has given explicit written permission for this perusal.
- Supplier shall never gain knowledge from the content of the information sent by the Customer and/or the End User.
- Supplier will make efforts to protect the Software from unauthorised access to the Customer’s personal data.
- The Customer shall make efforts to ensure adequate security, protection and backup of the information sent and received using the Software.
- Customer shall, on the basis of information provided by the Supplier 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. Supplier declares himself prepared to, on request of the customer, cooperate within reason with additional measure taken by the customer, in consideration of (financial) terms to be decided by the supplier. Supplier is not required to restore damaged or lost data.
Article 8. Liability
- The Customer is liable for the manner in which information is sent and received via the Software, in particular personal data.
- The Customer is liable for the manner in which the Software is used within his company and the information resulting from this use, specifically with regard to the persons using the Software in sub-license.
- Supplier is not liable for damage resulting from the Customer failing to take precautionary measures as outlined in Article 7.4.
- Supplier is not liable for damage resulting 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 function with the Software.
Article 9. Force Majeure
- Force majeure on the side of the Supplier suspends his (further) obligations stemming from the agreement for as long as the force majeure continues.
- Force majeure is understood as: every circumstance independent of the will of the Supplier that prevents fulfillment of 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
- Supplier has the right to deny the Customer access to the Software in the following situations:
- In the instance of violation of these Terms and Conditions of Use;
- When the Customer infringes on laws and regulations using the Software;
- When the Customer infringes on social and/or moral norms using the Software;
- When the Customer using the software (may) violate(s) or infringes upon private and/or personal data rights of third parties;
- When the Customer 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 Supplier and Customer 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 Supplier and Customer.