Terms of Use

1.Applicability and Scope

1.1. These general terms and conditions are applicable to the use of and access to our Watermelon Software and our Services for you, your customers, and the Users.

1.2. By creating an account on the Watermelon platform, making use of our Watermelon Software or our Services you, your customers and Users accept our General Terms and Conditions, our Privacy statement and our Terms and Conditions of Access. These terms apply to demos, trial accounts, Services, and all subscriptions to our Watermelon Software.

1.3. The General Terms and Conditions apply directly to all our Quotes and special offers. The General Terms and Conditions form an integral part of every Quote or special offer. Deviation from these Terms and Conditions is only possible if both parties have agreed to this in advance and in writing.

1.4. When the Watermelon Software uses services and software of third parties, in addition to the General Terms and Conditions of Watermelon, the standard (license) terms of the relevant third party also apply. We are not responsible for the services of this third party. We expect you to accept the standard (license) terms of third parties and can provide a copy of those standard (license) terms at your request.

2.Access to and Use of the Watermelon Software

2.1. We grant you and the Users access to the Watermelon Software as long as you are not in arrears with payment, and you and the Users adhere to these General Terms and Conditions and the Terms and Conditions of Access. We will work hard to make the Watermelon Software available 24/7 and to provide access to the stored Data in accordance with the Documentation, with the exception of announced maintenance (downtime) and force majeure situations. We do not guarantee the availability of the Watermelon Software. For some subscriptions, we may negotiate a Service Level Agreement (SLA) with you. We will send it to you with the Quote.

3.Updates & Support & Availability

3.1. Our service and support teams are ready to provide you with the best possible support with any questions or problems you have regarding the use of the Watermelon Software or the Services. A description of the Watermelon Software functionality is available in the Documentation. If we have developed additional features for you via our Services, the functionality is laid down in writing in the binding Quote.

3.2. We support the latest versions of the following browsers: Firefox, Chrome, and Safari.

3.3. If we know that the Watermelon Software will be temporarily unavailable (downtime due to, for example, a malfunction, maintenance, modification or improvement of the Watermelon Software), we will notify you five (5) days in advance on our status page (https://status.watermelon.ai/). In the instance of force majeure, we endeavor to make the Watermelon Software and the Data available and accessible as soon as possible (see article 14 force majeure).

3.4. We will do our utmost to ensure the availability of the Watermelon Software during office hours in the Netherlands is as high as possible. If we have agreed to a special SLA in the Quote, it will state the availability that we have agreed.

3.5. Watermelon is not required to provide backups of Data to the User or to you, unless there is evidence of a significant data loss, in that instance only to the extent that Watermelon has the backups. We determine if a large data loss has occurred. Watermelon may charge costs for providing a backup with Data.

3.6. We regularly release updates. We issue updates regularly to repair known issues and roll out small improvements in the functionality and operation of the Watermelon Software.

3.7. We also regularly release new versions of the Watermelon Software. We do this to implement new functionality. We adjust the Documentation for major updates and new versions. If an update, change, or new version leads to a significant change in functionality, we endeavor to inform you in a timely fashion. When you choose not to install our updates and new versions, regardless of the reason, we will not be liable for any errors or restrictions on your access or use of the Watermelon Software that arise as a result. We are not obliged to maintain, change, or add certain features or functionalities to the Watermelon Software for you.

4.Duration – Notice Period – Termination

4.1. Unless your account or your access to the Watermelon Software is prematurely terminated by us in accordance with these General Terms and Conditions, you will have access to the Watermelon Software for the duration of the subscription you have chosen. After that, the duration of your access or account will automatically be extended each time for the duration of the subscription that you initially chose.

4.2. If you do not want your subscription and therefore access to your Watermelon account to be extended, you need to cancel your Watermelon subscription yourself. You can do this via the following link https://wtr.ml/cancel. Once the form is completed, your cancellation will be officially submitted and we will start processing it. You will receive a confirmation from us within 3 business days. By doing so, you are terminating the agreement we have entered into as of the end date of the term. We cannot process cancellations in any other way due to privacy reasons. If your account or access has already been extended indefinitely, your cancellation will take effect immediately after we receive your cancellation on the next renewal date.

4.3. If you have a subscription for a limited time for an account and access to the Watermelon Software and the Services, you cannot terminate your subscription prematurely.

4.4. If you have received a Quote from us containing an offer of access and use of the Watermelon Software and provision of the Services, the duration of your access and use is noted therein. The offer as presented in the Quote is valid for thirty (30) days after the Quote date.

4.5. We reserve the right to unilaterally terminate the Subscription with a notice period of one month, if we believe that the partnership or collaboration no longer meets our expectations. In such a case, Watermelon will always first inform you in writing and attempt to resolve the issue through consultation.

5.Information from you

5.1. To provide a relevant, timely and accurate Quote, we need correct and complete information from you. At a minimum you should provide us with the number of Users who need access and will use our Watermelon Software. When you alter (specific) information after a Quote is provided, this can have an impact on the Quote we have made.

5.2. In the unlikely event that we make an obvious mistake in the Quote, we are not obliged to adhere to it. We hope for your understanding in this situation.

6.Trial version/demos/subscriptions/updates

6.1. When creating an account, you choose between the various subscriptions for access and use of the Watermelon Software offered at that moment. You can indicate the number of conversations that you are purchasing access and use for. The prices are published on our website, or can be found in the Quote specially drawn up for you.

6.2. With an account or subscription, you can use the Watermelon Software – but check the Documentation for the functionality and terms that are associated with your account or subscription. These General Terms and Conditions also apply to demos and free trials.

7.Terms and Conditions of Payment

7.1. The Watermelon fee is calculated based on a fixed annual price and three variable components based on the amount of conversations, chatbots and languages you are using.

7.2. All prices are indicated in Euros, exclusive of VAT tax, unless otherwise indicated. You pay without deduction or settlement, without suspension due to intended or actual shortcomings.

7.3. We reserve the right to raise the prices that we have agreed upon every year on January 1st by a maximum of 5%. We are not obligated to offer you the opportunity to cancel in advance.

7.4. If our standard credit check reveals that you have an increased risk profile for Watermelon, Watermelon will inform you about this in writing and we can ask for a (full) advance payment of the agreed fee from you.

7.5. We invoice electronically. This means that we send our invoices digitally to you and process them automatically. You are responsible for the accuracy of the bank details provided, by this we mean the account number and the account holder’s name.

7.6. Unless otherwise agreed upon in the Quote, the payment for your account and use is made in advance by an automatic direct debit transaction. You are required to pay an invoiced amount within the payment period as indicated in the Quote, but no later than 14 days. For all alternative payment methods, Watermelon reserves the right to charge an administrative transaction fee.

7.7. By providing your payment details, including your account number and account holder’s name, and by confirming the automatic direct debit payment method, you authorize (a) Watermelon B.V. and Stripe, our payment processors, to submit instructions to your bank in order to debit your account directly and (b) to allow your bank to debit your account in accordance with the instructions. The instructions that Watermelon B.V. and Stripe send to your bank are in accordance with the Watermelon payment terms as indicated in these General Terms and Conditions.

7.8. If the automatic direct debit transaction fails, you will automatically receive a message from us. In such an instance, Watermelon will try again to collect the amount due by direct debit. In the event that the automatic direct debit transaction fails two or more times within the Offer period, Watermelon will send you an invoice with the request to pay the amounts due by bank transfer within 14 (fourteen) days after the invoice date. In addition to the amounts already owed, Watermelon will add an administrative fee of € 25 (twentyfive Euro) excluding VAT tax to the total invoice amount.

7.9. If you do not pay within the required period as indicated in articles 7.7 or 7.8, you are automatically in default, and we can apply the statutory interest for Commercial Transactions. The interest accrues immediately on the due date of the invoice until the day where the invoice is paid in full.

7.10. We reserve the right to charge you all costs, including extrajudicial collection costs, when you fail to meet one or more responsibilities in a timely or correct fashion, where the extrajudicial costs are a minimum of 15% of the invoice amount, with a minimum van € 100,–.

7.11. Complaints or comments about invoices must be send in writing or via email to finance@watermelon.ai and within a period of seven (7) calendar days after the invoice date. After the expiration of this period you are deemed to have accepted the invoice. A complaint does not relieve the obligation to pay for all or part of the invoice.

8.Confidential Information

8.1. By “Confidential information we mean all information that is or will be made available by the providing party to the receiving party for the preparation or performance of the Quote or the Services, whether verbally or in writing. Confidential information refers to financial, commercial, and technical information, financial results, analysis and forecasts, customers and prospect lists, trade secrets and other information related to a company or business. The receiving party will keep the Confidential Information secret, not distribute this information with third parties and only use the information for the creation or implementation of the Quote or the Services. Parties also impose the obligations referred to in this article on their employees and third parties that are involved in the performance of the contractual obligations of that party.

9.Intellectual Property Rights

9.1. All intellectual property rights in the (i) Watermelon Software, Confidential Information of Watermelon, software, analysis, designs, documentation, counsel, reports, Quotes, and preparatory materials thereof (hereafter referred to as “the Materials”), and (ii) Materials generated as part of our Services, reside solely with Watermelon and our licensors.

9.2. We provide you with a non-exclusive, non-transferable right to use the Watermelon Software, but only in accordance with these General Terms and Conditions. User rights explicitly to not include access to and/or use of the source code of the Watermelon Software.

9.3. The Data belongs to you, including any intellectual property rights thereon.

9.4. It is not permitted to remove or change any indication of rights to intellectual property in the Materials, including indications regarding the confidential and secret nature of the Materials.

9.5. Watermelon reserves the right to take technical measures to protect the Materials. When Watermelon has secured the Materials through technical protection, you are not permitted to remove or circumvent this protection.

9.6. We consider every form of use, copying, and disclosure of the Materials that falls outside the bounds of these General Terms and Conditions as an infringement on our intellectual property rights. If you do this, you will owe Watermelon an immediately payable and not subject to judicial mitigation fine of € 10.000,- per infringing act. The fine is increased by a sum € 500,- for each day that the infringement continues, where Watermelon reserves the right to submit a claim for compensation for the actual, full damages caused by the infringement or to take other judicial actions in order to end the infringement.

10.Privacy

10.1. Privacy is especially important to us, and we have written down in our Privacy statement how we deal with this at Watermelon. We are only responsible for personal data that we process from website visitors and personal data that we process with regard to your use of the Watermelon Software. We are not responsible for the processing of the personal data of your customer and Users. You are responsible for informing these parties in accordance with privacy laws.

10.2. We use cookies and other tracking technologies on our website, as described in our Cookie Statement.

10.3. You must take into account that third parties, as referred to article 1.4, may process personal data. You must also conduct your own research into this processing of personal data. We are not liable for the processing of personal data by this third party.

10.4. Our standard data processing agreement can be found underneath the general terms and coniditions. When you agree to these General Terms and Conditions (see article 1.2), then you have also accepted the Data Processing Agreement.

11.Services provided by and not provided by Watermelon

11.1. We do our best to provide the Services and implement the Quote in a way that makes you as satisfied as possible.

11.2. All agreements between us qualify as a best efforts obligation, unless we have explicitly agreed on a result in the Quote. This result must be described in writing with sufficient determinability.

11.3. We reserve the right to engage third parties in the performance of our Services and in the provision of the Watermelon Software.

11.4. When we, at your request or with your consent, have to perform work that falls outside of the scope of our Quote, we will charge you the associated hours and costs. We are never obliged to comply with such a request.

11.5. If we cannot meet our agreed deadlines because, at your request or with your consent work has to be performed that we have not included in our Quote, we expect your understanding in this event. If additional work is required during the execution of the terms of the Quote, that is not a valid reason for you to terminate or dissolve the Quote.

11.6. The agreed deadlines for the delivery of the results from the Services from Watermelon as described in the Quote are not strict timelines.

12.Guarantees

12.1. We guarantee that we are the owner of Watermelon Software, or that we have legal permission from our suppliers and licensors to provide access to and use of the Watermelon Software to Users.

12.2. We guarantee that the Watermelon Software does not contain viruses, back doors, logic bombs or other malicious materials.

12.3. Although we have compiled our Watermelon Software with the greatest possible care, we can unfortunately not guarantee that it will operate and be available without disruption, error or malfunction, or that the information we provide is always complete, correct and/or up-to-date. Our Documentation contains a description of what you can expect from the Watermelon Software. Only if we have agreed an SLA with you in the Quote, you are entitled to the availability under that Service Level Agreement (SLA).

12.4. If you are not satisfied with the quality of the Services, we request that you inform us in writing as soon as possible and describe as accurately as possible what you think has gone wrong. We will review your complaint and if we agree, then we will compensate you for (the portion of) the Services that have not been properly delivered to you free of charge.

13.Indemnification

13.1. Watermelon is not the owner of the Data, or of information or materials that is sent or used via the Watermelon Software by you or by your Users. As specified in the Terms and Conditions of Access, you and the User are responsible for your Data and for the accuracy, quality, integrity, legality, reliability, appropriateness and the possible infringement on the intellectual property rights of third parties and of the Data entered.

13.2. If you are faced with a legal claim from a third party in which it claims that the Watermelon Software infringes an intellectual property right of that third party, we will indemnify you against this legal claim. We expect that you will inform Watermelon immediately in writing about the existence of and the contents of this legal action and allow Watermelon to handle the legal action fully from that point moving forward. We also expect that you provide the necessary authorizations, information, and cooperation to Watermelon in order to defend you from this legal action.

13.3. The obligation to indemnify, as referred to in the previous paragraph, does not apply in the instance that the infringement is related to:
・Data, information, or matters that you have provided to us for use, adaptation, processing or incorporation for the creation or execution of a Quote; or
・changes that you, or a third party have made to Watermelon Software without our written permission.

14.Force majeure

14.1. In the instance of force majeure, the availability of the Watermelon Software and Services may be impacted (see article 3). Therefore, we cannot guarantee the uptime during force majeure, even under an SLA. If force majeure presents itself, Watermelon reserves the right to suspend its obligations for as long as the force majeure lasts. A force majeure does not suspend your obligations.

14.2. Force majeure is any circumstance, independent of the will or control of Watermelon, that temporarily or permanently prevents the execution of a Quote or your access to your account or the Watermelon Software, which should not be at the risk of Watermelon, neither by law nor by standards of reasonableness and fairness, such as: malfunctions or downtime of internet and telecommunications infrastructure, synfloods, network attacks, DoS- or DDoS-attacks, power surges, national riots, mobilization, war, stoppages of traffic, strikes, lockouts, industrial disturbances, stagnation in supply, fire, flood, supply and demand obstacles and force majeure from third parties that Watermelon utilizes to fulfil its obligations (such as but not limited to the hosting of the Watermelon Software), whereby fulfilment of obligations cannot be reasonably expected of Watermelon.

14.3. Watermelon endeavors to inform you as quickly as possible within a reasonable period of time in the event of force majeure.

14.4. If a portion of our obligations as described in the Quote have been completed, we reserve the right to send you a partial invoice. But we must remain reasonable. If the force majeure situation lasts longer than three (3) months, we may both terminate the agreement prematurely without observing notice periods.

15.Limitation of Liability

15.1. We are never liable for damage, except where our Watermelon Software or Services have directly caused you direct damage.

15.2. Direct damage refers exclusively to the material damage that is the direct result of an attributable breach, or wrongful act from us. Direct damage refers to the following costs:

　15.2.1. the reasonable costs incurred to determine the cause and extent of the direct damage;

　15.2.2. the reasonable costs incurred to determine our breach with regards to the contract,unless this breach cannot be attributed to us;

　15.2.3. the reasonable costs made to limit or to repair the damage. You must be able to provide evidence that you have actually limited the damage by incurring these costs.

15.3. In the instance that we are liable for damage, the amount of our liability is limited to the coverage of our liability insurance and to the amount that will be paid out in the context of the industry/business liability insurance in the relevant case, plus the deductible of Watermelon.

15.4. If the insurer intends not to pay, or if the damages are not covered by insurance, our liability is limited to a maximum of 50% of the invoice value of the specific portion of the Quote to which the liability relates.

15.5. We are never liable for indirect damage (such as but not limited to damage from business interruption, lost profits, loss of company data, consequential damages, or missed savings).

15.6. If the damage can be attributed to intentional or gross negligence of Watermelon, the financial limitations of our liability as indicated above do not apply.

15.7.Parties do not incur liability for the following situations from which damage could arise:

・the receiving party was provided with incorrect or incomplete information from the disclosing part and have (in part) based performance on that information;

・force majeure;

・failure of the Watermelon Software;

・the integration of Watermelon Software with, for example, applications or integrations (APIs) of third parties that no longer work, as a result of changes in the applications or integrations of third parties; or

・changes by third parties other than on behalf of Watermelon to the Watermelon Software

15.8. If you want to hold us liable because we do not (fully) uphold our obligations as outlined in the Quote, you must first inform us of this liability in writing and allow us a reasonable period to attempt to fulfil the unfulfilled, incompletely fulfilled or incorrectly fulfilled obligation. If you want to hold us liable, you must do so within 12 months of the event where the specific damage or lack of fulfillment occurred.

16.Termination

16.1. Watermelon has the right to terminate your subscription, without notice and without being obligated to pay any compensation:

　16.1.1. if you are in default; or

　16.1.2. if you have been declared bankrupt, if a party admits inability to pay its debt or the statutory debt rescheduling scheme has been declared applicable, or a request for one of the aforementioned proceedings is pending; or

　16.1.3. if the Privacy statement or the Terms and Conditions of Use are not upheld by you or by Users.

16.2. If we terminate the agreement, you have to fulfill your (payment) obligations based on your subscription or from the Quote. Watermelon reserves the right to claim to following sums from you: damage, costs and lost interests attributable to your shortcoming, costs associated with terminating the contract and lost income associated with the termination actions.

17.Changes to the Watermelon General Terms and Conditions

17.1. Watermelon reserves the right to change these General Terms and Conditions and to publish a new version.

17.2. Changes also apply to previous agreed Quotes. We apply a thirty (30) day period that begins after the change to these General Terms and Conditions has been published on the Watermelon website, or when you have received an email in this regard.

17.3. When you do not want to accept a change to these General Terms and Conditions, you can, until the date on which the new General Terms and Conditions take effect, terminate your Quote or your account and access.

18.Additional Considerations

18.1. Changes in the direct or indirect control of Watermelon, its (fruit)name, or company type are not a valid reason for cancellation or dissolution.

18.2. All legal relationships between us to which these General Terms and Conditions apply are exclusively governed by Dutch law.

18.3. The judge of the judicial district of Midden-Nederland, location Utrecht, has exclusive jurisdiction with regard to any dispute between Parties over the realisation of or interpretation of the Quote or agreement.

Definitions

General Terms and Conditions:

This document, including the Privacy statement and Terms and Conditions of Access.

Services:

The development of custom software, the development of a custom chatbot, the design of a (chatbot) avatar, the implementation of third-party software.

Documentation:

the description of the functionality of the Watermelon Software can be found online at the URL: https://watermelon.ai/about-watermelon/

User:

Every natural person that uses the Watermelon Software.

Data:

Data, not personally identifiable information, used or saved via de Watermelon Software.

You:

A business, company or initiative, a Watermelon customer, that will use Watermelon Software to conduct customer service operations.

Quote:

Our offer to you that both parties have signed and agreed to.

Personal data:

All information directly or indirectly relatable to an identified or identifiable natural person.

Watermelon Software:

Our uniquely programmed software that offer solutions for customer service, sales and marketing centralizing and automating customer contact, that we provide with new updates and versions on a weekly level to keep the quality and user experience optimal and our own servers.

Watermelon:

That’s us, Watermelon B.V., the customer service solution from Utrecht, headquartered at (3511 BK) Utrecht, on the Lange Viestraat 2b, registered at the Dutch Chamber of Commerce under number 66844177 Utrecht, Nederland.

Watermelon General Terms and Conditions version 12 October 2020

Terms and Conditions of Access

These Terms and Conditions of Access are an integral part of the Watermelon General Terms and Conditions.

In order to use the Watermelon Software, you need to create an account on our platform.

After you have created a digital account, you will have a username and password allowing you access to the Watermelon Software.

You are not permitted to provide or distribute your username and password to third parties unless we have provided you will explicit written permission in advance.

You are personally responsible for all of the activities that are conducted from your (user) account and in using your account you are expected to abide by current applicable laws and regulations, as well as our General Terms and Conditions.

You are obligated to notify us immediately in writing when there is a possibility of unauthorized use of a password or an account, or when you suspect or are aware of a breach to the security of the Watermelon Software.

You are not permitted to act as another user of the Watermelon Software or provide us with incorrect or inaccurate identity information.

You are not permitted to change, edit, or alter the access to or use of the Watermelon software in any inappropriate, incorrect or unauthorized way, or to cause damage, malfunction or an attack to the Watermelon Software (or the connected network) in any way.

You may not transmit Data via the Watermelon Software or use the Watermelon Software:

• to violate or encourage the legal rights of others(for example encouraging Users to infringe or misuse the intellectual property rights of others);
• to conduct, promote or encourage illegal activities;
• that is, pornographic and/or offensive;
• for any unlawful, infringing, defamatory or fraudulent purpose (for example phishing, the creation of a pyramid scheme or mirroring of a website);
• to intentionally spread viruses, worms, Trojan horses, damaged files, hoaxes, spyware, or other items of a destructive or misleading nature;
• to disable, disrupt or bypass any element of the Watermelon Software;
• to generate, spread, publish, or facilitate unsolicited mass emails, promotions, advertising or other messages (“spam”), also not via (deep)link or a comparable technique with the Watermelon Software;

If we believe there is a threat to the functioning of the Watermelon Software, the network on which Watermelon operates or third parties, in particular due to excessive data transmission, the use of improperly secured systems or the presence of viruses, trojans or comparable software, we reserve the right to take all necessary measures we reasonably consider necessary to avert and to prevent this danger. This incluses that we may delete your account and Data without obligation to refund or indemnify you. Watermelon is not liable for any damage that may occur as a result of the deletion of your account and data in such a situation.

By using the Watermelon software under the terms of an agreement that we concluded, you record a variety of data from your customers, suppliers, and others in our software. This data also includes personal data, including names, (email) addresses and telephone numbers. Legally you are designated as the “data controller” in the processing that personal information. Since our platform makes it possible to save and use this data, we act as data processor, meaning we will process your personal data in an appropriate and secure way.

On the basis of the General Data Protection Regulation (GDPR), in effect since May 25, 2018, arrangements between controllers and processors have to be made with regard to the processing of personal data by the processor (Watermelon).

This data processing agreement outlines these terms.

1.Definitions of legal terms

The GDPR uses a variety of legal terminology. In order to make this data processing agreement understandable to you, we first explain here the relevant terms:

Personal Data:

Every piece of data about a natural person that can directly or indirectly identify them. For example, a name, (email) address or telephone number.

Data Subject:

The person to which a piece of Personal Data is related, or his/her representative. This is, for example, a customer or supplier from whom you have saved the (email) address or telephone number.

Third Party:

A natural person or legal entity, a governmental agency, a service or other organ, not being the Data Subject, the Data Controller, or the Data Processor.

Master Agreement:

The agreement(s), including the quotation (both written and/or digital form on the Watermelon Platform), the general terms and conditions and the terms of use with associated attachments,  between you and Watermelon regarding the provision of services by Watermelon, the Data Processor, to you, the Data Controller, and to which this Data Processing Agreement is an addendum. 

Sub-processor:

A party engaged by the Data Processor for the fulfilment of the Data Processing Agreement and the associated processing of Personal Data.

Processing of personal data:

Any operation or set of operations which is performed on personal data, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or use of personal data.

Data Controller:

The person or organization that determines:

• if Personal Data may be processed, and if so, which data;
• the goal with which this Personal Data may be processed;
• what the processing entails; and
• which means may be used to that end.
  As indicated, you are the Data Controller of the Personal Data. When you are named as the Data Controller in this agreement, we are referring to “you” in relation to the company for which you work / of which you are the owner.

Data Processor:

The person or organization that Processes Personal Data on behalf of the Data Controller, for example, Processing via a web application, without coming under the direct authority of that party. In this Data Processing Agreement, Watermelon is the Data Processor.

Data Processing Agreement:

This agreement, wherein the Data Controller (you) and the Data Processor (us) agree to terms about the Processing of Personal Data, including any addenda.

2.Who is who?

If you read “you” in this Data Processing Agreement, we are referring to you as a customer of the online customer service portal and/or the apps from Watermelon, and you as the entity that has entered into an agreement with us for the use of Watermelon.

If you read “we”, “our” or “ours”, then we are referring to Watermelon B.V., with headquarters at Europalaan 400, 3526 KS, in Utrecht. Watermelon is registered at the Dutch Chamber of Commerce under the number 66844177.

Within Watermelon (software) we also offer integrations, for example with Facebook, Twitter, or Telegram. You can view or retrieve data from these platforms via the integration. For full transparency, we inform you that we are not the Data Controller of that data under the GDPR. The Data Controller for that data is the (social) platform itself.

3.When is this data processing agreement in effect? Can this agreement be ended prematurely?

3.1. By agreeing (online) to the content of this Data Processing Agreement, this agreement is concluded and enters into effect immediately.

3.2. This Data Processing Agreement is a part of the Master Agreement that we have entered into with you for the use of Watermelon. Both agreements cannot be considered individually; if you or we end the Master Agreement, then this Data Processing Agreement will also automatically end. It is not possible to terminate this Data Processing Agreement without terminating the Master Agreement.

3.3. When this Data Processing Agreement is terminated, the Personal Data will be provided to you upon request. You must make this request immediately with the termination of the Data Processing Agreement, as all Personal Data will be destroyed immediately following the termination of the Data Processing Agreement, unless we are obliged by specific judicial or legal actions to retain (specific) Personal Data.

4.What personal data do we process for you? What are the goals of processing this data?

4.1. We Process Personal Data only for the purposes as outlined in the Master Agreement. These purposes can be summarized as the adequate provision of service to our customers via a semi-automated customer service portal and the associated functionality of https://watermelon.ai/.

4.2. Personal Data will be Processed appropriately and securely, in accordance with the terms of this Data Processing Agreement and in accordance with the GDPR, or any other applicable laws and regulations regarding the protection of personal data.

4.3. No special categories of Personal Data shall be Processed, such as Personal Data related to race and ethnicity, unless we have made other specific arrangements with you. In Annex 1 of this Data Processing Agreement, we specify which Personal Data we Process on your behalf.

5.What are your responsibilities as a data controller?

5.1. The Data Controller warrants that the Personal Data that will be Processed by the Data Processor are correct, relevant and not excessive in light of the purposes of Processing.

5.2. The Data Controller shall immediately notify the Data Processor if there are errors or irregularities that may affect or are related to Processing.

6.We handle personal data confidentially, but how?

6.1. We are required to maintain confidentiality of all Personal Data that we Process on your behalf to fulfil the terms of the Master Agreement. For this purpose, we take the following measures:

• We will take all necessary measures to maintain and ensure secrecy and confidentiality of Personal Data.
• We ensure that all our employees will maintain confidentiality of Personal Data.
• If we utilize the services of another party that we engage for Processing, we will ensure that this party operates within the same confidentiality protocols regarding Personal Data, in accordance with the arrangements we have made with you.

6.2. We do not need to maintain confidentiality and/or secrecy of Personal Data if,

• you have given explicit written consent to share specific Personal Data with Third Parties; or
• there is a legal requirement to share specific Personal Data with a Third Party.

7.Where is personal data saved and how is it secured?

7.1. We host and Process Personal Data exclusively within the European Economic Area (EEA).

7.2. To secure Personal Data, we have taken appropriate technical and organizational security measures, as detailed in Annex 2. The choice of these measures is based on available technology, the costs of implementation, the type of Personal Data that we Process on your behalf, and the associated risks. The demands of security and technology continue to change; thus, we continuously evaluate our security measures and adapt, improve, or evolve them as necessary.

8.What is the protocol in the event of a data breach?

8.1. A data breach involves an infringement regarding Personal Data that leads to accidental or unlawful destruction, loss, change, or unauthorized disclosure of, or access to, Personal Data that has been transmitted, stored, or otherwise Processed.

8.2. In case of a data breach with regard to the Personal Data that we Process on your behalf, we will inform you immediately (within 48 hours after discovery).

8.3. As the Data Controller, you also have specific (legal) responsibilities in the event of a data breach. We will support you in any way we can in fulfilling these responsibilities.

9.How do handle the rights of data subjects?

Data Subjects have several rights under the GDPR. You are obliged to take these rights into account. Where possible we will help you, including requests for access, rectification, and restriction of processing of Personal Data. In the event we receive a request or complaint from a Data Subject, we will send that request or complaint immediately to you.

10.Who else has access to the personal data?

10.1. In some instances, we make use of Sub-processors. These are individuals or organizations that we in turn engage to Process Personal Data from our Watermelon software. You can review the list of sub-processors at https://watermelon.ai/subprocessors/.

10.2. We make clear agreements with Sub-processors about how to manage all data. We specifically make agreements about the technical and organizational security measures that they must take in order to meet the requirements of laws and regulations. We are responsible for the Sub-processor’s meeting of these requirements as a Data Processor on behalf of you, the Data Controller.

10.3. By signing this Data Processing Agreement, you give us permission to engage Sub-processors. If we intend to use another Sub-processor, we will always inform you in advance. If you continue to use the Watermelon software after being notified, you are deemed to have agreed to the use of those Sub-processors.

11.Who is liable in the event of damage?

11.1. You will indemnify us for penalties or fines from or issued on behalf of the Dutch Data Protection Authority to us, and for claims for damage by a Data Subject, in the event that these penalties, fines or claims are the result of you not meeting the responsibilities for Processing of Personal Data, on the basis of this Data Processing Agreement, the GDPR and other applicable privacy regulations.

11.2. Should we be liable for these penalties and/or fines from or issued on behalf of the Dutch Data Protection Authority or claims from Data Subjects, the terms of the Master Agreement regarding (limitation of) liability of Watermelon are fully applicable. Our liability is limited to the amount of the license fees that are paid under the Master Agreement.

12.What can you do to verify whether we are meeting the obligations of this agreement?

You have the right to conduct (periodic) audits, or contract for the conduct of audits, to verify whether we are meeting the terms of this Data Processing Agreement. For this purpose, we agree to the following:

• We are always operating from a perspective of fulfilling our responsibilities as outlined in this Data Processing Agreement. For this reason, we may allow an independent and external auditor to conduct an audit. If we have conducted such audit, you can request to review the audit report. Only if you have sufficient reason to believe that we have not fulfilled our obligations under this Data Processing Agreement, you have the right to also allow an external auditor to conduct an audit at your own cost. You also have this right if an audit report is not available for review.
• You will notify us in writing at least 14 days in advance that you would like to conduct and audit. If the date and/or time of the audit does not align with our business operations, then we will inform you and propose a new date and time.
• You will use an external auditor that is a member of Norea, or an auditor that meets the same quality standards that Norea demands of its members, such as the requirement to maintain secrecy and objectivity. If the external auditor does not meet these quality standards, then we reserve the right to refuse the audit by this auditor.
• The individuals that conduct the audit will maintain the security procedures that we have implemented. This means, for example, that confidentiality is maintained. You also will maintain confidentiality about the results of the audit; it is not allowed to communicate with third parties about the results of the audit. This is allowed, however, if we have (after discussions) granted our permission
• We will collaborate with the audits and auditors and will provision all reasonably relevant information in a timely fashion. The audits are conducted at your cost.

13.How do we handle disputes?

13.1. If we have a dispute, we will do our best to find a resolution together. In the instance we cannot mutually resolve the dispute, the dispute shall be presented to the competent court of the judicial district Central Netherlands (Midden-Nederland), Utrecht. We reserve the right to present the dispute to this court, even if regulations indicate that another court may have jurisdiction.

13.2. Dutch law applies to this Data Processing Agreement. This also applies to all other agreements and other legal actions resulting from or relating to this Data Processing Agreement.

14.How do handle the rights of data subjects?

If there is a discrepancy in the terms of this Data Processing Agreement and the Master Agreement we have entered into for the use of Watermelon, then this Data Processing Agreement prevails, and these terms shall be applicable.

Annex 1: Description of Personal Data Processing

Data Subject	Employees of the organization that is a customer of Watermelon
Categories of Personal Data	Email address, telephone number, first and last name
Purpose of the Processing:	The delivery of services to the Data Controller via the Watermelon software.
Retention period:	Up to 2 years after the termination of service
Processing outside of the EEA:	No

Annex 2: Description of the technical and organizational security measures of the Data Processor

This annex describes the technical and organizational security measures taken by the Data Processor to ensure the security of Personal Data:

• Security standards (via Google Cloud):
  ISO 27001
  NEN 7510
  NTA 7516
• Watermelon enforces strict access control, including the use of two-factor authentication (2FA), to ensure that only authorized employees have access to sensitive data.
• We protect Personal Data with encryption, proactive monitoring, and regular security audits to prevent loss, unauthorized access, and unauthorized processing.
• We actively monitor security developments, update security patches, and conduct security assessments to identify potential risks and improve our security.
• Measures in the context of the information obligation by Processor to Controller, ensuring that Processor acts correctly and completely in case of a Data Breach, in line with Article 8.3 of this Data Processing Agreement.

General

These terms of use are applicable to your use of our website www.watermelon.ai, a website that is managed by Watermelon B.V. (“us”). We are registered in the Netherlands under Dutch Chamber of Commerce number 66844177 and headquartered at Lange Viestraat 2b, 3511 BK, in Utrecht.

By using our website, you confirm that you have accepted the terms of use and that you agree to comply with them. If you do not agree to these terms of use, you may not use our website. Read these terms of use carefully before using our website. These terms of use may change from time to time. Check them every time that you visit our website in order to understand which terms apply to you at that time. These terms of use were last adapted on 30 October 2020.

These terms of use refer to additional terms, that are also applicable to your use of our website:

• Our privacy statement, which explains the terms and conditions of processing all personal data that we collect from you or that you provide to us. By using our website, you agree to such processing and guarantee that the details you provide to us are correct.
• Our cookie statement, which explains how we use cookies on our website.

We may change and edit our website from time to time. We cannot guarantee that our website, or any material published on the website, will always be available without disruption. We can restrict, remove, or limit the availability of the whole website, or part of the website, for business and operational reasons. We will try to inform you in a timely manner about these limitations, restrictions, and removals.

Using the material on our website

We are the owner or license holder of all intellectual property rights on our website and the material published on the website. These works are protected by copyright laws and treaties. All rights are reserved.

You may download and print one copy and download statements from every page of our website for personal use. You may increase the awareness of others in your organization of the contents on our websites. You are not permitted to change the physical or digital copies of any material that you have printed or downloaded, and you may not use any illustrations, photos, video or audio fragments or any graphic elements separated from the accompanying text.

Our status (and that of all identified contributing authors) as the author of the content of our website must always be indicated and made plain.

You may not use any part of the contents of our website for commercial purposes without obtaining a license from us or from one of our licensors. If you print, copy or download a portion of our website in a way that breaches these terms of use, your right to use our website ends immediately and you are obligated, depending on our choice, to return or destroy all copies of the material that you have made.

Information on this website

The contents of our website are exclusively intended to provide general information. The contents are not intended to provide advice or counsel as a basis for you. With the contents of the website in mind, you will need to gather specialized advice from our employees before you undertake any action (or decide not to).

We make reasonable efforts to adapt the information on our website regularly, however we do not guarantee, implicitly or explicitly, that the contents of our website are correct, complete, or up to date.

We are not responsible for websites or the contents of website that we link out to.

When our website links lead to other websites and contain third-party sources, these links are provided for informational purposes only. Links of this nature may not be interpreted as approved by us, nor may the contents of the third-party website in question, nor the information you receive from such website. We have no control over the contents of these websites or sources.

Our responsibility for losses or damages you incur

We take the most careful and thoughtful approach in compiling and maintaining the contents of our website and making it available. We cannot guarantee the completeness and/or correctness of the information provided by us via our website. Neither Watermelon nor any partner or licensor are liable for any damage that is a result of, caused by or is related to the access, use or inability to open or inability to use the website.

Bugs and viruses

We cannot fully guarantee that our website is safe, or free of bugs and viruses. You are responsible for configuring your information technology, computer programs and platform in order to access our website. You are to use your own antivirus software. You may not misuse our website to deliberately introduce viruses or other material of a malicious or technologically damaging nature. You may not attempt to gain unauthorized access to our website, the server that hosts our website or any server, computer or database that is connected to our website.

Referring to our website

You may refer individuals or companies to our homepage, under the condition that you do this in an honest and legal manner in a way that does not damage or misuse our reputation. You may not create or publish a link to our website in such a way that suggests any form of association or approval from us where this does not exist. You may not create or publish a link to our website on a website of which you are not the owner. You may not link to another part of our website other than the homepage.

We reserve the right to withdraw permission for referring to or linking to our website from other websites without advance notice.

If you would like to create a link to our website or would like to use the contents of our website in such a way that is not described above, contact us via email at contact@watermelon.ai.

Disputes

You are aware that the terms of use, the contents of the terms of use, and the applicability of these (and eventual non-contractual disputes or claims) are governed by Dutch law. We agree that the exclusive competent court is the court of Utrecht in the Netherlands.

Registered Trademarks

Watermelon is a registered trademark in Europe. You may not use our trademark without our permission.

Partner Terms & Conditions Watermelon B.V.

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

Article 1. Definitions and General Provisions

1. Who is who? Who am I?

1.1.Watermelon: that’s us, the customer service solution from Utrecht.

1.2.Assigner: that’s you, the entrepreneur who wants to use our software.

1.3. User: every person that uses Watermelon software.

1.4. Parties: that’s both of us.

1.5. Watermelon software: that’s our unique and specially programmed software that offers you customer service solutions.

1.6. 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.

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:

　12.1. Materials made available to Watermelon by Partner for the purpose of use, editing, processing or incorporation, or

　12.2. 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.

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.

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.

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.

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.

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.

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.

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:

　2.1. The reasonable costs of determining the cause and scope of the direct damage;

　2.2. 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;

　2.3. 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.

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.

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.

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.

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:

　1.1 Partner is in default with regard to the (timely) observance of one or more of his obligations under the agreement;

　1.2. It can be expected that Partner may not, in whole, in part and/or in time (be able to) fulfil his obligation towards Watermelon;

　1.3. 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;

　1.4. 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.

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).

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. GWithin 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.

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.

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.

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.

We, Watermelon B.V. (hereafter known as: Watermelon) find it especially important to carefully manage personal information. We also carefully process and secure personal information. We comply with the requirements of the General Data Protection Regulation (GDPR) when processing data.

This privacy statement explains the Personal Information from you that we collect and use. We also explain why we collect this data and which security measures have been taken to protect it. We recommend you read this privacy statement carefully and completely.

Definitions

Customer:

You, the entrepreneur or business owner that makes use of our service tool with your employees.

Visitor:

The visitors of the website www.watermelon.ai.

Personal Data:

All the data that concerns a natural person making them identifiable including name, (email) address and phone number. For Watermelon, this person can be the Visitor or the Customer.

Processor:

The person or the organization that processes personal data on behalf of the Controller, for example via a web application, without being subjected to his direct authority.

Controller:

the person or organization that determines whether or not Personal Data can be processed and if so, for what purpose this Personal Data can be processed, what the processing entails, and which means can be used.

1.General

1.1. This privacy statement applies to all website visitors to the website www.watermelon.ai (hereafter known as: ‘the Website’) by Visitors and the use of the Watermelon software (hereafter known as: ‘the Software”) by Customers.

1.2. The processing of Personal Data always requires a legal basis, such as your permission, necessity in light of an agreement where you are the Customer, as well as necessary to advance the interest of our legitimate (business) interest, which we shall always balance with your rights to privacy.

1.3. We have established a retention period policy for the processing and storage of Personal Data in accordance with applicable laws and regulations.

1.4. For the processing of Personal Data, Watermelon is registered at the Personal Data Authority under number: 1646183.

2.Collection and use of personal data from visitors

2.1. To provide Visitors with the best experience possible, we must request and/or process Personal Data from Visitors.

2.2. When you use the Website and fill in the contact form on the Website, Watermelon stores the following personal data from you:

　2.2.1. When you use the Website and fill in the contact form on the Website, Watermelon stores the following personal data from you:

　　2.2.1.1. IP-address

　　2.2.1.2. type browser

　　2.2.1.3. date and time of your visit to the Website

　　2.2.1.4. the ways in which you use the Website as a Visitor

　2.2.2. Contact information: when a Visitor uses the contact form, we collect Personal Data to help the Visitor in the best way possible. Watermelon also requires information to deliver custom and/or personalized products and services. The following Personal Data is stored when using the contact form:

　　2.2.2.1. first name and/or last name

　　2.2.2.2. email address

　　2.2.2.3. phone number

　　2.2.2.4. company name

　　2.2.2.5. the contents of the form

　2.2.3. Cookies: Watermelon uses cookies on the Website. You can find more information on Watermelon’s use of cookies in the Cookie Statement.

3.Collection and use of the personal data from customers

3.1. To ensure the best provision of service to Customers and to execute the agreement with the Customer, Watermelon collects Personal Data. The employees of the Customer can use the Software through accounts. For these accounts, the following personal data is processed:

3.1.1. company information

3.1.2. first and last name of the account holder

3.1.3. email address

3.1.4. phone number 

3.2. Via the Customer’s accounts, clients of the Customer will get in contact and provide Personal Data. In this situation, Watermelon acts as a Processor. Watermelon asks its Customers to be transparent with their clients about the ways in which they use the Software, and to state in their privacy policy whether or not Personal Data is processed, and if so, which Personal Data is processed.

3.3. We store the Personal Data for the duration of the collaboration with the Customer. If the collaboration stops, the data will be deleted within 1 year.

4.Collection and use of personal data from job applicants

4.1. When a natural person applies for a job via the Watermelon website, data is collected to follow up with the applicants in the best way possible. The following data is stored:

4.1.1. first and last name

4.1.2. email address

4.1.3. phone number

4.1.4. resume

4.1.5. motivation/cover letter

4.1.6. LinkedIn profile

4.1.7. Indeed profile

4.2. The data will be stored for a maximum of 4 weeks and destroyed thereafter unless you are employed by Watermelon or give your consent to save the data for up to 1 year for future job openings.

5.Newsletter

5.1. Visitors to our Website can subscribe to our newsletter. Watermelon only uses Visitors’ names and email addresses to inform them about special offers and promotions via the newsletter when they specifically provided their consent for this. The newsletter contains a link where you as a Visitor can immediately unsubscribe from the newsletter.

5.2. Watermelon only uses a name and the email address to inform the Customer of special offers and promotions via a newsletter if the Customer has provided specific consent for this. The newsletter contains a link where the Customer can immediately unsubscribe from the newsletter.

6.Transfer to third parties

6.1. Watermelon will never provide your Personal Data to third parties without your explicit consent. In the instance that Watermelon receives Personal Data from a Customer, Watermelon will request permission from the Customer before providing third parties with that data.

6.2. Watermelon may engage third parties that, under its supervision, and named in this privacy statement, process Personal Data. These processors act under the responsibility of Watermelon and may not process personal data for their own purposes.

6.3. Watermelon can determine it necessary to share Personal Data from Customers with other software providers. The legal basis for this shall be either necessity in light of the agreement with the Customer, or explicit consent from the Customer. These software providers are also known as sub-processors. We have created an overview of all our sub processors, which can be consulted at this page.

7.Websites and third-party services

7.1. This privacy statement does not apply to third-party websites that are connected with the Watermelon website via links. Watermelon cannot guarantee that these third parties handle your Personal data in a trustworthy and/or safe way. Watermelon advises you to read the privacy statements of these websites carefully and completely before you use such a website.

7.2. To use the Software, you must create a Watermelon account and you can make use of social media services such as Facebook, Twitter, or Telegram. Read the privacy policies of these services (that can change frequently) carefully and completely to understand how they use and process your personal data.

8.Alteration/deletion of personal data, data portability, complaints and opt-out

8.1. As a Visitor of the Website you have the right to demand to access to your Personal Data, as well as to improve, rectify, erase and/or restrict (processing of) your Personal Data, as determined in the GDPR.

8.2. When you want to exercise the rights as described in the previous article, or when you have questions around the use of the aforementioned rights, or questions about this privacy statement, you can get in contact with Watermelon via contact@watermelon.ai.

8.3. Where you have given permission for the collection of Personal Data, you may also rescind this permission. When you rescind this permission, you agree to the fact that this may lead to negative effects on the ability of Watermelon to provide service or the quality of the Website. When the Customer rescinds his permission, Watermelon is rendered unable to provide service and the agreement with the Customer will end.

9.Security

9.1. To ensure the security of the Website and the Software, Watermelon uses a secure, encrypted SSL-connection. This can be seen in the browser’s URL bar, where the website address begins with https.

10.Changes to the privacy statement

10.1. Watermelon has the right to change this privacy statement.

10.2. If Watermelon may decide to change this privacy statement, these changes will be reflected directly. Watermelon will inform you of this change with a notice on the Website, during a period of three (3) months, and inform you via email as well.

Cookie Statement

On this website www.watermelon.ai (hereafter known as: ‘the Website’), and in the use of the Watermelon software (hereafter known as: ‘the Software’), we at Watermelon B.V. (hereafter known as: Watermelon) use cookies.

A cookie is a simple small file that is sent with the pages of this Website and the Software that is saved on your computer’s hard drive by your browser. The information saved in the cookie can be sent back to the Watermelon servers in the instance of a return visit.

Various types of cookies

Watermelon places various kinds of cookies on its Website and in the Software. This Cookies Statement explains which cookies Watermelon utilizes in its services and what information these cookies collect about you. In order to place certain cookies, your explicit consent is required. We will explain in the text below when this is the case.

1.Functional cookies

Watermelon uses cookies to save your preferences, so that Watermelon does not need to continue to ask you for them, and thus improve your experience of the Website and the Software. Functional cookies can also help to recognize a logged-in visitor, so you do not need to log in each time. Watermelon also uses load balancing cookies, where Watermelon distributes visits over several servers for the Website to provide the fastest response time possible.

2.Analytical cookies

Watermelon places analytical cookies via the Website from the American company Google as a part of the “Google Analytics” service. Watermelon places these cookies to see how many visitors visit the Website and other statistics about the behavior of these visitors on the Website. The data that Watermelon receives via these cookies cannot directly lead back to you as a person, but rather serves to obtain statistics of website visitors. Watermelon has entered a data processing agreement with Google. Google may not use the information gathered via Google Analytics for other Google services. Watermelon has disabled the setting of transfer of IP-addresses to Google via Google Analytics, which means there is no unnecessary infringement on your privacy.

3.Tracking cookies

Watermelon uses so-called tracking cookies to create a profile about you. The created profile allows advertisements to be tailored to your profile, so that you see advertisements that are relevant to you. Tracking cookies also allow Watermelon insight into your visit to other websites within our network. Watermelon needs your explicit consent for the placement of tracking cookies. When you enter this Website, your permission will be asked for via a cookie-banner. In the instance that this cookie banner no longer appears, you can adjust your settings for cookies in your browser.

Watermelon makes use of the following tracking cookies, among others:

3.1. Hotjar cookies: every unique Visitor is identified, and these cookies ensure you see the correct content. The most important goal of the Hotjar cookie is offering a better user experience and to improve the Website. The Hotjar cookie allows Watermelon to follow you through a session. These cookies delete themselves automatically after 365 days. Hotjar does not show IP-addresses, only a unique ID.

3.2. Retargeting cookies from Google AdSense: this allows Watermelon to show advertisements on third-party websites that are related to your previous visits to this Website or the use of the Software.

3.3. Social media buttons and pixels: our website uses buttons and pixels to promote websites and to share on social networks such as Facebook, Twitter, Google+ and LinkedIn. These buttons and pixels place cookies, where we can see what you as a visitor to our website are looking for. Our ads can be tailored to your behavior. These cookies work by a system of codes that are generated by the social networks themselves.

4.Right to examination, correction, and deletion

You have the right to access, correct or delete your personal data. To do so you can send an email to contact@watermelon.ai. To avoid abuse of these rights, we may ask you to adequately identify yourself.

You can always delete cookies that have been placed via the settings menu in your browser. You can find more information about enabling, disabling, or deleting cookies in the instructions for and/or with the help function in the browser.

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 Lange Viestraat 2b, 3511BK 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 is designed to help you enhance your websites and applications API Clients). 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 Clients). 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 Clients that clearly and accurately describes to users of your API Clients 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- clients . 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.

1. 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 non-transferable, non-sublicenseable, 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.