ROBIN Software B.V.
Terms and Conditions
ROBIN Software B.V. (hereinafter: ”ROBIN”) is registered in the Trade Register of the Chamber of Commerce in Apeldoorn under number 53928067.
In these Terms and Conditions the following definitions apply:
- Agreement: the specific agreement between ROBIN and the Customer in which the mutual rights and obligations regarding the application or Service to be provided to Customer
- Customer: the counter party of ROBIN with which ROBIN has executed an agreement with any resulting legal obligations
- Documentation: the technical descriptions and user manuals that belong with the application, as well as all other documents such as manuals, drawings, depictions, photos, outlines, models and offers;
- SaaS “Software as a Service”: The Service existing of the provision by ROBIN to the Customer of the application as mentioned in the Agreement;
- Service: the work or services to be performed by ROBIN as specified in the Agreement, among which the use of the SaaS, the application and the functionality.
1.1 These Terms and Conditions are applicable to all agreements for the use of ROBIN Software B.V. products and services by a Customer.
1.2 In the event the provisions of the Agreement are contradictory to these Terms and Conditions the provisions of the Agreement shall apply.
1.3 Derogations to these Terms and Conditions are only applicable if they have been explicitly agreed to in writing. Derogations are only applicable in relation to the Agreement to which they are related.
1.4. General terms and conditions for purchasing that a Customer may use, are not applicable to the legal relationship between the Parties, unless otherwise explicitly accepted by ROBIN.
2. The SaaS
2.1 The Service includes:
- the SaaS ”ROBIN”, an intelligent customer service assistant (also referred to as “Conversation Engine”);
- the ROBIN API;
- and the other services provided to You based on the Agreement, including all applications, data, text, images, sounds, videos, and other content developed by ROBIN.
Any new features added to or augmenting the Service or application are also subject to these Terms and Conditions.
3. Nature of the Agreement
3.1 The nature of the Agreement is a commitment of effort and not a commitment of result, unless otherwise agreed by the Parties.
3.2 Unless otherwise agreed by the Parties, ROBIN does not warrant the suitability for a specific purpose or function, among which cost savings or improvement of company business results.
3.3 Under no circumstances does ROBIN warrant the uninterrupted availability of telecommunications services and if applicable, the uninterrupted access to their Service either via the internet or the networks of ROBIN or any other third party.
3.4 ROBIN does not warrant that the Service will be uninterrupted, timely, error-free or virus-free and any other information or advice obtained by Customer from ROBIN shall create a warranty not expressly stated in these Terms and Conditions.
4. Obligations of the Customer
4.1 Subject to these Terms and Conditions, You agree to access and use the Service only for Your internal business purposes as contemplated by these Terms.
4.2 You agree not to:
- use the Service to process data on behalf of any third party;
- modify, adapt or hack the Service to falsely imply any association with ROBIN, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks;
- use the Service in any unlawful manner, including but not limited to violation of any persons privacy rights, infringing the intellectual property rights of ROBIN or any third party, or sending spam or otherwise unsolicited messages in violation of applicable law;
- use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components;
- attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any application making up the Service;
- use the Service to knowingly post, upload, link to, send or store any content that is unlawful, racist, hateful, obscene, discriminatory, or contains any viruses, malware, Trojan horses, or any other similar harmful software; or
- use the Service in violation of these Terms and Conditions.
4.3 Furthermore, the following obligations apply:
- Customer guarantees that all materials or data and instructions that are provided by Customer to ROBIN for the implementation of the Service are correct and complete and that all storage media for data correspond with the specifications given by ROBIN;
- Customer is responsible for all information, data, text, messages or other materials that they post or which is otherwise transmitted via the Service;
- Customer is responsible for maintaining the confidentiality of their user names and passwords, and are fully responsible for any and all activities that occur under their accounts;
- Customer shall use the hardware prescribed by ROBIN and shall follow the instructions of ROBIN regarding conditions for the use of the Service;
- Customer agrees and acknowledges that their login may only be used by one (1) person, and that a single login will not be shared among multiple people;
- Customer may create separate logins for as many people as the conditions of the Agreement allows;
- Customer shall require of their staff that they comport themselves as a professional user and require them to accept the conditions of this article.
- The Customer will not re-design or parameterize the SaaS without the prior written consent of ROBIN in such a way that the system load becomes substantially greater or the stability of the functionality is reduced.
4.4 ROBIN’s failure to enforce at any time any provision of these Terms and Conditions does not constitute a waiver of that provision or of any other provision of these Terms and Conditions.
5. Obligations of ROBIN
5.1 ROBIN guarantees that it is entitled to provide the agreed SaaS to Customer and hereby indemnifies Customer from any third party claims in relation thereto.
5.2 The placement of data by Customer on the ICT-infrastructure of ROBIN or any third party used by ROBIN does not constitute a transfer of ownership of that data. Staff of ROBIN may not make amendments to data of the Customer, unless the Customer has given their prior written consent to do so.
5.3 ROBIN will indemnify and hold Customer harmless, from and against any claim against Customer by reason of Customer’s use of the Service as permitted under these Terms and Conditions, and which are brought by a third party alleging that the Service infringes a valid patent or copyright, or infringes on any other intellectual property right of another party. ROBIN shall, at its expense, defend such Claim and pay damages finally awarded against Customer in connection therewith, including the reasonable fees and expenses of the attorneys engaged by ROBIN for such defense, provided that
- Customer promptly notifies ROBIN of the threat or notice of such Claim;
- ROBIN will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such Claim, and;
- Customer fully cooperates with ROBIN in connection therewith.
6. Reservations of ROBIN
6.1 ROBIN reserves the right to suspend the performance of the Agreement, among which the suspension of the SaaS and if necessary to terminate the Agreement with the Customer or to take any other measure necessary in ROBIN’s view, if the Customer does not comply to the terms of the Agreement or these Terms and Conditions, under the understanding that ROBIN, insofar the circumstances reasonably permit, shall inform Customer of the apparent breach of the conditions and will give Customer a reasonable period of time to comply with the terms of the Agreement or these Terms and Conditions. In such cases, the Customer shall never be able to claim damages.
6.2 ROBIN reserves the right to delete or block any and all information that is in violation of the law, public order or good morals, without it leading to any form of liability for ROBIN.
6.3 ROBIN reserves the right to independently delete transactional records older than 12 (twelve) months. Customer data and Customer’s contact information will never be deleted without the consent of the Customer.
6.4 ROBIN cannot not offer guarantees in relation services which are not offered by or on behalf of ROBIN.
6.5 ROBIN reserves the right to discontinue the offering of existing features. The SaaS is herein defined as a continuously developing solution, which may see new features arise and existing features removes
7.1 In accordance with provisions of the General Data Protection Regulation (Regulation 2016/679), ROBIN shall implement appropriate technical and organizational measures, taking into account the state of technology, the costs of implementation and the nature, scope, context and purposes of processing in order to ensure a level of security appropriate to the risk.
7.2 Parties shall endeavor within reason to adequately secure the data that is provided to the by the other Party, in accordance with article 7.1.
7.3 Customer shall take appropriate measures to prevent unauthorized persons from gaining access to the Service and the data. ROBIN cannot be held liable for any damages that Customer may suffer due to unauthorized third party access or unlawful use of the Service or data.
8.1 Each Party shall take all reasonable measures in order to guarantee the confidentiality of all confidential information to which they, or persons which they may ask to perform the Agreement on their behalf, have access to or have received knowledge of.
8.2 ROBIN warrants that their staff and the persons which they may use for the performance of the Agreement will subject themselves to regulations which have been instated by ROBIN with the aim to impose the highest possible security of its computer systems and data centers and the confidentiality of personal data.
8.3 In the case supplemental provisions and conditions are required in relation to security measures, such measures shall be agreed upon in a separate addendum to the Agreement.
9. Data Privacy
- The supplemental provisions of a data processing agreement shall prevail over the provisions of these Terms and Conditions or any other legal document between parties. Insofar there is no executed data processing agreement between ROBIN and the Customer, the following provisions shall apply.
- Customer shall act as a Controller under the Agreement.
- Parties take it upon themselves to not use personal data received from the other Party for any other Purpose that for the purpose for which such data was given or which was given for the purpose of performance of the Agreement.
- Customer warrants the lawfulness of the use of any personal data, the processing thereof, the purpose of the use thereof and the exchange of personal data and any other use as may stem from the Service in relation to the Agreement.
- Customer shall indemnify and hold ROBIN harmless against any claim by a third party, among which fines from the any legal or governmental authority or data subjects, in relation to the non-performance by Customer of any requirements under this article.
10. Intellectual Property Rights
10.1 All copyrights and possible other intellectual property pertaining to the SaaS or Documentation supplied to Customer by ROBIN as well as any preparatory documents shall remain, during and after the execution of the Agreement between ROBIN and Customer, the property of ROBIN or the third party from which ROBIN has retained a right to supply the relevant SaaS or Documentation to Customer.
10.2 Unless explicitly agreed to in writing, the above provision of 10.1 shall also apply to any Service and/or Documentation that has specifically been developed and produced for Customer.
10.3 These General Terms and Conditions shall also apply to any amendments, adaptations and or new versions of the application or the SaaS.
10.4 Unless otherwise agreed in writing, ROBIN retains its rights to any other documentation supplied to Customer, such as manuals, drawings, depictions, photos, outlines, models and offers.
10.5 Documentation supplied to Customer may not be copied, re-used, supplied or made public to third parties or used for any other purpose other than their own use.
11. Third Party Services
11.1 ROBIN is authorized to use third parties for the performance of the Agreement.
11.2 Notwithstanding the provision of article 1.1, ROBIN shall conform to the provisions of the data processing agreement in relation to third parties that are given access to personal data.
11.3 The Service may contain links or connections to third party products, services or software. Use of such products, services or software is under separate terms and conditions. ROBIN makes no representations as to such services, their content or the manner in which they handle Customers’ personal data. ROBIN is not liable for any damage in connection with the use of any such services.
11.4 The Service may contain features that enable various other services (such as social media services like Twitter) to be directly integrated into the Service. To make use of these features, you will be required to register for or log into such other services on their respective websites. By enabling third party services within the Service, Customer allows ROBIN to pass Your log-in information to these Other Services for this purpose.
12. Billing, Modifications And Payments
12.1 Unless otherwise mentioned the offered prices or prices agreed between the Parties are always ex VAT.
12.2 ROBIN retains the right to index the agreed annual payment as of the 1st of January of each year by means of the Price Index Amount for Collective Labor Agreement salaries per hour including specials benefits for the Industry Business Services, as determined by the Dutch Central Bureau of Statistics in The Hague related to the most recent timespan with as basis 2000=100.
12.3 Unless otherwise agreed in writing, payment of amounts due to ROBIN shall be paid on or before the 14th calendar day after the date of the invoice. Payment shall take place in Euro unless otherwise specified in the Agreement.
12.4 Invoicing for one-time only amounts will take place immediately after execution of the Agreement. For agreements with a longer term than one (1) year, the amount will be invoiced before commencement of the coming year.
12.5 Payment has been made final on the day the amount has been transferred into ROBIN’s bank account.
12.6 Interest on amounts not paid timely to ROBIN shall be 1.5% per month, due from the day following the day the amount was to be paid until full and final payment has been made, whereby the requirement to pay interest under the foregoing shall commence from the first day of the month, for the entire month.
12.7 In the case of non-payment and notice of non-payment ROBIN shall be authorized to limit the delivery of their Service and the use of or access to the SaaS until such time that Customer has fulfilled their payment obligation, including the payment of interest due and other costs.
12.8 All costs related to court costs or extra-judicial costs of any kind that ROBIN expends in order to enforce obligations under the Agreement due to non-payment by Customer will be for the account of Customer.
12.9 In addition, ROBIN shall be authorized to terminate the Agreement by written notification due to non-payment without judicial review, notwithstanding ROBIN’s right to enforce the payment in full, including the payment of any damages, in the case that Customer remains in arrears after notification of non-payment after being given a reasonable term to fulfill their payment obligation.
12.10 Customer has no right to claim settlement of any amounts due to them against their payment obligation, unless the claim is an amount due to the Customer by ROBIN, which ROBIN has expressly acknowledged.
13.1 The Agreement shall be for a term which is agreed therein. This term shall tacitly be extended for the period of one year, unless one of the Parties terminates such at the end of the contract period by e-mail, with observance of a notice period of one month.
13.2 Notwithstanding anything agreed otherwise in the Agreement, Parties may dissolve or terminate the Agreement by registered mail without prior notice of non-performance or judicial review:
- in the case that the other Party has been granted a moratorium of payment and /or the moratorium of payment has lasted longer than six (6) months;
- if the other Party has been declared bankrupt
- if the other Party is dissolved.
- if conservatory or executory attachment is placed on a substantial part of capital of the other Party and such attachment prevents or hinders a reliable performance of the Agreement;
- if the other Party cannot perform its obligations under the Agreement, after having been given a notice of non-performance and having been given a reasonable period of time to comply with its obligations under the Agreement.
13.3 Upon termination of the Agreement, a Parties’ right to use the SaaS shall also cease.
13.4 Obligations that, due to their nature are meant to endure after termination of the Agreement shall remain valid and in full force after the termination of the Agreement.
14. Termination of the Service
14.1 Upon termination of the Agreement and at the request of Customer and for their account, ROBIN shall provide all cooperation to Customer in order to guarantee continuity of the operational services to Customer, if and when related to the Service. Unless agreed otherwise in the Data Processing Agreement, ROBIN shall provide for an additional fee the data in a format which can be read by the Customer on a customary storage device. Such additional fee, together with the manner with which it will provided, shall be specified in the Agreement or in a new, to be agreed agreement (“Exit Service”).
15. Force Majeure
15.1 In the case of a non-attributable shortcoming by circumstances beyond the control of the Parties (such as fire, inundation or flooding, extreme cold, lightning - pertaining to ROBIN or their suppliers - , mobilization, seizure of goods, trade blockades or sanctions, failure or (temporary) non-availability of telecommunications connections) which prevent the performance of the Agreement or make it unreasonably costly, the obligation of performance shall be postponed for a period of time equal to the time such circumstances continue.
15.2 The Party claiming force majeure shall give notification to the other Party and shall at the first request of the other Party provide for such claim the necessary evidentiary documentation.
15.3 If performance of the Agreement has become impossible due to force majeure, or the duration of the circumstances causing force majeure may take more than three (3) months or has surpassed such period of time, each Party shall have the right to terminate the Agreement by an explicit and written notification without judicial review. ROBIN will never be liable for damages to Customer due to a termination on the basis of force majeure.
16.1 ROBIN’s total liability due to an attributable failure in the performance of the contract or on any legal basis whatsoever, expressly including each and every failure to fulfil a warranty obligation agreed with the customer, shall be limited to compensation for direct loss up to a maximum of the price stipulated for the contract concerned (excluding VAT). If the contract is mainly a continuing performance contract with a term of more than one year, the price stipulated for the contract shall be set at the total amount of the payments (excluding VAT) stipulated for one year. ROBIN’s total liability for direct loss, on any legal basis whatsoever, shall never amount to more than €500.000 (five hundred thousand Euros), however.
16.2 ROBIN’s total liability for loss due to death or bodily injury or as a result of material damage to items shall never amount to more than €1.250.000 (one million two hundred fifty thousand Euros).
16.3 ROBIN’s liability for indirect loss, consequential loss, loss of profits, lost savings, reduced goodwill, loss due to business interruption, loss as a result of claims of the customer’s customers, loss arising from the use of items, materials or software of third parties prescribed by the customer to ROBIN and loss arising from the engagement of suppliers prescribed by the customer to ROBIN is excluded. ROBIN’s liability for corruption, destruction or loss of data or documents is likewise excluded.
16.4 The exclusions and limitations of ROBIN’s liability described paragraphs 16.1 up to and including 16.3 are entirely without prejudice to the other exclusions and limitations of ROBIN’s liability described in these general Terms and Conditions.
16.5 The exclusions and limitations referred to in paragraphs 16.1 up to and including 16.4 shall cease to apply if and insofar as the loss is the result of deliberate intent or recklessness on the part of ROBIN’s management.
16.6 Unless performance by ROBIN is permanently impossible, ROBIN shall only be liable due to an attributable failure in the performance of a contract if the customer declares ROBIN to be in default in writing without delay and grants ROBIN a reasonable period of time to remedy the breach, and ROBIN culpably fails to fulfil its obligations also after this term has passed. The notice of default must describe the breach as comprehensively and in as much detail as possible in order to give ROBIN the opportunity to respond adequately.
16.7 For there to be any right to compensation, the customer must always report the loss to ROBIN in writing as soon as possible after the loss has occurred. Each claim for compensation against ROBIN shall be barred by the mere expiry of a period of 24 months following the inception of the claim unless the customer has instituted a legal action for damages prior to the expiry of this period.
16.8 The customer indemnifies ROBIN against any and all claims of third parties due to product liability as a result of a defect in a product or system that the customer supplied to a third party and that consisted in part of equipment, software or other materials supplied by ROBIN, unless and insofar the customer is able to prove that the loss was caused by the equipment, software or other materials referred to.
16.9 The provisions of this article and all other limitations and exclusions of liability referred to in these general Terms and Conditions shall also apply for the benefit of all natural persons and legal entities that ROBIN engages in the performance of the contract.
17. Transfer of Rights
17.1 ROBIN reserves the right to transfer its rights and obligations under the Agreement to a third Party, under the condition that such Party shall be bound by the obligations of the Agreement and these Terms and Conditions.
18. Entire Agreement
18.1 These Terms and Conditions, together with the Agreement, contain the entire understanding between the Parties.
18.2 The Agreement between the Parties and these Terms and Conditions supersede prior agreements, commitments and other agreements between the Parties.
18.3 Amendments and supplements to the Agreement between the Parties are only valid when these have been agreed in writing.
19.1 If any provision in the Agreement or in these Terms and Conditions is held by a court of competent jurisdiction to be unenforceable, the other provisions shall remain in full force. Parties shall enter into negotiations in order to agree to a replacement provision so as to best accomplish the goal of the original provision as closely as possible.
20. Governing Law and Competent Court
20.1 The Agreement between ROBIN and the Customer and these Terms and Conditions shall be subject to Dutch law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply.
20.2 All conflicts that may arise between the Parties in relationship to the Agreement and these Terms and Conditions shall be adjudicated in accordance with the 2015 Arbitration Regulations of the Foundation for the Resolution of ICT Disputes in Rijswijk, the Netherlands.
20.3 In case an emergency judicial review or authorisation for conservatory attachment is required, Parties may have such review or authorization reviewed by the competent court of Arnhem, the Netherlands.