Terms & conditions

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1 – Introduction

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Thank you for partnering up with us! These Terms of Service ("Terms") form a part of the legal agreement between you (as our Customer) and us (AskWhisper - Amodamo BV) for your access to and use of the askwhisper.com products and services.

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If you use the askwhisper.com product and services on behalf of a company or other entity, then "Customer" or "you" means that entity, and you are binding that entity to these Terms.  When we use the terms "we" or "us", we mean AskWhisper as the provider of the Services.

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These Terms, the Data Processing Agreement, and the applicable Order(s) together form the full agreement between AskWhisper and Customer related to the use of the askwhisper.com products and services (together, the "Agreement").

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2 – Definitions

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"Affiliate" means any entity that directly or indirectly controls, or is controlled by, or is under common control with the party specified. For purposes of this definition, "control" means direct or indirect ownership of more than 50% of the voting interests of the subject entity or the power to direct the management and policies of the subject entity.

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"Customer Content" means any data, content or materials that Customer (including its End Users and Guests) submits to the Services or creates or generates using the Services, except for Usage Data.

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"End User" means the individual authorized by Customer to access and use the AskWhisper Services (including getting access to the askwhisper.com platform).

"Guest" means the individual who Customer (or Customer's End User) communicates with via the Services, such as a hotel guest or the individual who made the booking.

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"Order" means each order form, ordering document, or online subscription process by which Customer agrees to subscribe to the Services.

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"Services" means the askwhisper.com products and services listed in an Order, including all additions and modifications made by AskWhisper from time to time in accordance with these Terms. Details of the Services are outlined on https://askwhisper.com/.

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"Subscription Term" means the period of Customer's subscription to the Services as stated in an Order.

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"Third-Party Services" means any product, add-on or platform not provided by AskWhisper that Customer uses with the Services.

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Usage Data means the aggregated and anonymized data from AskWhisper's technical logs, data and learnings about Customer's use of the Services.

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"Direct Messaging Costs" means the fixed and the variable costs related to the type of communication channel used by Customer. How these costs are calculated may depend on the channel. AskWhisper will charge Customer for Direct Messaging Costs on a monthly basis.

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3 – Access to the Services

1. Account. To get access to and use the Services, Customer must create an account. AskWhisper may also create accounts on behalf of Customer. As AskWhisper uses the contact details in the account to manage Customer's subscription, Customer must keep all account information accurate and complete.
2. End User accounts. Customer will ensure that End Users keep their login credentials confidential. Customer will promptly notify AskWhisper when an End User account or credentials have been compromised.
3. Guest conversations. The Services enable Customer to communicate with Guests and to provide specific support or services to Guests. When sharing Guest data with AskWhisper, Customer will ensure that such data is accurate and complete.
4. Affiliate use. Customer may allow its Affiliates to use the Services, however Customer is responsible and liable for all access to and use of the Services by their Affiliates. Customer Affiliates may also enter into their own Order with AskWhisper in which case Customer's Affiliate will be deemed a separate 'Customer'.
5. Account suspension. AskWhisper may block Customer's account, suspend Customer's access to the Services, or remove Customer Content if: (a) Customer breached its payment obligations; (b) Customer has breached its obligations listed in Section 5 of these Terms; or (c) suspension is necessary to protect AskWhisper's rights and interests or to prevent harm to other customers or third parties. The parties will cooperate to resolve the situation and to restore Customer's access to the Services. AskWhisper is not liable for any damages, liabilities, losses, or any other consequences that Customer may incur as a result of any suspension of Customer's account or the removal of Customer Content by AskWhisper in accordance with this Section.

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4 – Use of the Services

1. Maintenance and downtime. AskWhisper strives to keep its Services available as much as possible. However, we cannot guarantee uninterrupted availability, unless agreed by means of a separate service level agreement. Our Services may become temporarily unavailable: (a) to perform scheduled or unscheduled maintenance, modifications, or upgrades; (b) due to hardware failures, power outages, or failures of third-party providers; (c) to mitigate or prevent the effects of any threat or attack to the Services or any other network or systems on which the Services rely; or (d) as required for legal or regulatory reasons. We will make a reasonable effort to notify Customer in advance of any scheduled unavailability of the Services.
2. Support. The Services are provided in combination with the support offered through https://askwhisper.com/. When Customer requires additional support, the parties will discuss the scope of such support and whether it can be provided free of charge or against payment. Customer can reach out to support@askwhisper.com for any support requests.
3. Free trial. AskWhisper may offer new Customers the opportunity to test the Services free of charge for a limited period of time ("Free Trial"). During the Free Trial, certain Services may be limited. Customer may terminate its use of a Free Trial at any time prior to the start of the paid Subscription by sending a notification to support@askwhisper.com. Once the Free Trial ends, and Customer has not terminated the Free Trial, it will automatically roll over into the paid Subscription Term. Despite the Free Trial being free of charge, AskWhisper will charge Customer for Direct Messaging Costs related to the Free Trial.
4. Beta Products. AskWhisper may allow Customers to use and test certain Services, or specific features of a Service, that are not yet generally available to all of AskWhisper customers and/or are designated as "beta", "pilot", "preview", or similar designation ("Beta Products"). Beta Products are provided on an "as is" and "as available" basis without any warranty, support, indemnification, or maintenance obligations. For Customer's use of Beta Products under this Agreement, AskWhisper's entire liability will not exceed €100. Both parties may cancel access to Beta Products at any time.
5. Integration with Third-Party Services. Customer may choose to enable integrations or exchange data and information with Third-Party Services. Customer's use of a Third-Party Service is governed by its agreement with the relevant provider and not by this Agreement. AskWhisper is not responsible for Third-Party Services or how a third party provider uses Customer Content.
6. Compliance with law. Customer will comply with all applicable laws and regulations that apply to Customer's use of the Services.

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5 – Restricted Use

1. Customer will not, and will not allow others, to: (a)  sell, sublicense, distribute or rent the Services (in whole or part), or grant non-authorized End Users access to the Services; (b) attempt to copy, modify or create derivative works of the Services; (c) remove proprietary notices from the Services; (d) attempt to reverse engineer, decompile or attempt to discover any source code or algorithms of the Services; (e) access the Services to develop a competing product or service; (f) use the Services to provide a hosted or managed service to others; (g) use the Services to send spam or other unsolicited commercial messages; (h) conduct load, stress, security or vulnerability tests on the Services, interfere with the operation of the Services or circumvent access restrictions.
2. In addition, Customer will not, and will not allow others, to use the Services: (a) for any illegal or fraudulent activity; (b)  to violate the intellectual property or other rights of others; (c) to threaten, incite, promote, or actively encourage violence, terrorism, or other serious harm; (d) for any content or activity that is deceptive, infringing, defamatory, pornographic, harassing, abusive, or otherwise offensive, unlawful, or tortious or which violates a third-party's privacy or data protection rights; (e) to violate the security, integrity, or availability of any user, network, computer or communications system, software application, or network or computing device.

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6 – Intellectual Property

1. Ownership of Services. AskWhisper owns and reserves all right, title, and interest, including intellectual property rights, in and to the Services and Usage Data.
2. Customer Content. Customer owns and reserves all intellectual property rights into Customer Content. Customer grants to AskWhisper a non-exclusive, sublicensable license to access, copy, store and transmit the Customer Content for the purpose of providing the Services.
3. Feedback. If Customer provides any feedback about the Services, AskWhisper will be allowed to use such feedback without restriction and without the need to compensate Customer.

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7 – Data Protection

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When providing its Services, AskWhisper will process personal data of Customer, including personal data of Guests and End Users. The Data Processing Agreement, currently available at https://askwhisper.com/dpa/ (the "DPA"), applies to the processing of personal data for the provision of the Services and is a part of these Terms, unless AskWhisper and Customer have signed a separate data processing agreement.

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8 – Confidentiality

1. "Confidential Information" mean any information, including but not limited to, proprietary software, trade secrets, financial data, business plans, and any other information disclosed by either party (the "Discloser") to the other party (the "Recipient") in connection with the Agreement, that is marked as confidential or should be reasonably understood to be confidential.
2. The Recipient will: (a) not use the Discloser's Confidential Information for any purpose outside of this Agreement; (b) not disclose the Discloser's Confidential Information to any person or entity other than on a need-to-know basis; (c) ensure that anyone Confidential Information is disclosed to is bound by written obligations of confidentiality; and (d) use reasonable measures to protect the confidentiality of such Confidential Information.
3. Confidential Information will not include information that the Recipient can show: (a) was already lawfully in its possession or known to it without any restriction on its disclosure; (b) is or becomes publicly known other than because of a breach of this Agreement; (c) is independently developed without the use of the other party's Confidential Information; or (d) is lawfully obtained from a third party without breach of any confidentiality obligation.
4. The Recipient acknowledges that unauthorized disclosure of the Discloser's Confidential Information could cause substantial harm to the Discloser for which monetary damages would not be an adequate remedy. In such cases, the Discloser is entitled to seek injunctive relief in addition to any other legal remedies.

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9 – Fees and Payment Terms

1. AskWhisper may offer different payment methods to Customer. The fees owed by Customer are to be paid by means of one of the payment methods accepted by AskWhisper. All fees and expenses are non-refundable, except as expressly set out in these Terms.
2. You agree to pay all fees in accordance with the then current applicable rates, which may be updated from time to time and which are available at https://askwhisper.com/pricing-page/, unless otherwise specified in the applicable Order or an invoice. Fees do not include any sales, excise, export, import, value added or similar tax (collectively, “Taxes”). Taxes, other than withholding taxes, will be shown as a separate line item on an invoice.
3. AskWhisper reserves the right to update its Services fees from time to time (including subscription fees and any additional fees). In the event of an update of our fees, AskWhisper will take commercially reasonable steps to notify you, such as by email, in-app notifications, or by updating the AskWhisper website. The updated fees will be effective as of the start of Customer’s next Subscription Term.
4. IWhen payment is due on an invoice basis, Customer will pay the fees stated on the invoice within 14 days of the invoice date, unless otherwise indicated in the Order. AskWhisper is entitled to invoice for the Fees in advance, at the start of a Subscription Term. Customer agrees that Direct Messaging Costs will be charged by AskWhisper on a monthly basis, regardless of the payment term related to other subscription fees.
5. If Customer misses a payment (and fails to pay after receiving a first reminder), AskWhisper may: (a) assess and charge the greater of 1.5% per month, or the maximum amount allowed by law, on the value of the unpaid fees; and/or (b) block Customer’s account and/or suspend access to the Services until the fees are paid in full.
6. Customer may dispute an invoice in good faith by giving written notice to AskWhisper within 14 days of receipt of the invoice.

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10 – Indemnification

1. Indemnification by askwhisper.com. askwhisper.com will defend Customer (and its Affiliates) against any third party claim asserting that the Services infringe or misappropriate any patent, copyright, trademark or trade secret of that third party and will, subject to the cap in Section 11.1, indemnify Customer for all costs and damages finally awarded against Customer (including reasonable legal fees) by a court of competent jurisdiction or agreed in settlement by askwhisper.com as a result of any such claim. This indemnity will not apply when such claims result from: (a) modification of the Services other than by askwhisper.com or with the express written authorization of askwhisper.com; (b) Customer combining the Services with items not provided by askwhisper.com; (c) continued use of an infringing version of the Services after askwhisper.com has provided a non-infringing version and notified Customer of its availability; or (d) Customer's breach of the Agreement.
2. Indemnification by Customer. Customer will defend askwhisper.com against any third party claim resulting from: Customer Data; or a breach of Section 5 (Restricted Use), and Customer will indemnify askwhisper.com for all costs and damages finally awarded against askwhisper.com (including reasonable legal fees) by a court of competent jurisdiction or agreed in settlement by Customer and any fines as a result of any such claim.
3. Indemnification conditions. An indemnifying party's obligations are subject to receiving from the other party: (a) prompt notice of the claim once the indemnified party becomes aware of the claim; (b) sole control over the defense and settlement of the claim; and (c) all reasonable assistance from the indemnified party.
4. Exclusive remedy. This Section sets out Customer's sole and exclusive remedy for any third party claim of infringement of intellectual property rights that is made against Customer.

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11 – Liability

1. Limitation on indirect, consequential, and related damages. To the maximum extent permitted by applicable law, in no event will either party (or its Affiliates) have any liability related to the Agreement for any lost profits, revenues, goodwill, reputation, sales, data, or data use, business interruption or indirect, special, incidental, consequential, or punitive loss or damages, whether an action is in contract or tort or otherwise and regardless of the theory of liability.
2. Limitation of liability. Subject to Section 11.1, each party's entire liability under the Agreement will not exceed the amounts paid or payable to askwhisper.com in the 12 month period immediately preceding the first incident giving rise to liability.
3. Exceptions to the limitation of liability. None of the limitations of liability listed above, apply to: (a) liability for gross negligence, wilful misconduct, or fraud; (b) any liability that cannot be excluded or limited under applicable law; (c) Customer's payment obligations under Section 9; (d) Customer's breach of Section 5.

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12 – Term and Termination

1. The term of Customer's subscription to the Services is stated in the Order.
2. Unless otherwise stated on the applicable Order, all subscriptions will automatically renew, at askwhisper.com's then-current subscription fees, with successive terms equal to the initial term, unless either party notifies the other party of its intent not to renew at least 30 days prior to the end of the then-current Subscription Term. For example, a subscription for a period of 12 months will, at the end of that period, automatically renew for additional 12 months, until terminated by either party.
3. Either party will be entitled to terminate the Agreement:
   
   1. if the other party commits a material breach of the Agreement which cannot be remedied;
   2. if the other party fails to cure a material breach of the Agreement within 14 days of being given notice of the breach; or
   3. immediately upon notice if the other party ceases business without a successor or becomes the subject of any bankruptcy proceeding or any other proceedings relating to insolvency, administration, liquidation or assignment for the benefit of some or all of its creditors or enters into an agreement for the composition, extension, or readjustment of substantially all of its obligations.

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13 – Effect of Termination

1. Consequences of termination or expiration. Upon termination or expiry of the Agreement or applicable Order, any  rights, licenses, and subscriptions granted to Customer to access and use the Services will cease immediately.
2. Payment or refund upon termination. askwhisper.com will invoice Customer for fees not yet invoiced for Services provided by askwhisper.com up to the termination date, unless Customer terminated the Agreement under Section 12.3.1 or 2. When Customer terminates the Agreement under Section 12.3.1 or 2, askwhisper.com will provide Customer a pro-rata refund of unused prepaid fees, calculated at the termination date.
3. Deletion of Customer Content. askwhisper.com will delete Customer Content after termination or expiry of the Agreement.
4. Survival. The terms of this Section 13, Section 6 (Intellectual Property), Section 7 (Data Protection), Section 8 (Confidentiality), Section 9 (Fees and Payment), Section 10 (Indemnification), Section 11 (Liability), and Section 16 (General) will survive termination of expiration of the Agreement.

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14 – Governing Law

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The Agreement, and any dispute, claim, or controversy (whether in contract, tort or statute) arising out of or related to the Agreement will be governed by and construed in accordance with the laws of Belgium and will be resolved by the competent courts of Belgium.

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15 – Changes to these Terms

1. askwhisper.com is entitled to update the Agreement from time to time, including these Terms and the DPA. askwhisper.com will notify Customer of any material changes in writing two weeks before the changes take effect. When Customer does not accept the changes, it will notify askwhisper.com within 14 days of the notification and Customer is allowed to terminate the Agreement. Unless otherwise agreed, Customer will not receive any refunds for Services paid but not yet received at the date of termination, when the Agreement is terminated under this Section. Continued use of the Services by Customer after the effective date is regarded as Customer's acceptance of the relevant changes.
2. askwhisper.com will not inform Customer of:  (a) any non-material changes; and (b) changes in connection with changes in laws and regulations; and (c) changes to reflect new features or Services made available by askwhisper.com.

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16 – General

1. Notices. Notices to Customer will be sent to the contact details stated on the Order. Notices to askwhisper.com must be sent to legal@askwhisper.com.
2. Entire agreement. The Agreement represents the full and complete contract between the parties, superseding all prior proposals, statements, or agreements.
3. Assignment. Neither party may assign the Agreement without the prior consent of the other party, except to any of its Affiliates or to an entity that acquires all or substantially all of its assets, provided that the assignee is in a position to discharge the obligations of the assignor.
4. Third party rights. No third party has any rights under the Agreement.
5. Severability. If a court of competent jurisdiction holds any provision of the Agreement to be contrary to applicable law, that provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the greatest extent allowed by law and the remaining provisions of the Agreement will remain in full force and effect.
6. Waiver. Delay or failure by a party to exercise a right or remedy under the Agreement, does not waive the right or remedy or restricts future exercise of such right or remedy. Partial use of a right also doesn't limit its full future exercise. Rights remain available for later assertion.
7. Independent contractor. Each party is an independent contractor under the Agreement.
8. Force Majeure. Neither party will be responsible for any failure to perform its obligations under this agreement due to causes beyond its reasonable control including acts of any government or government agency such as blocking internet traffic or any webpage (each a "Force Majeure Event"). The time for performance will be extended for a period equal to the duration of the Force Majeure Event. If a Force Majeure Event continues for more than 30 days, then either party may terminate the Agreement by giving notice to the other party.
9. Marketing approval. askwhisper.com is allowed to use Customer's name, logo, and business details for marketing purposes, e.g. referencing Customer on askwhisper.com's website.

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