Last modified: 27 March 2020
These Customer Terms of Service govern your use of the Services that you purchase from Nakama. By using this Service you agree to be bound by these Customer Terms of Service and you agree that no other conditions will apply, except if they have been accepted in a written agreement between you and Nakama.
Convexable BVBA ("Nakama" or “Nakama HR”) is a Belgian company with headquarters in Da Vincilaan 1, 1930 Zaventem (Belgium), registered in the Kruispunt Bank for Enterprises under number 0723.614.753.
Reference may hereafter be made in the following ways to Nakama "We" or "Us". "You" can be referred to as follows: "Client", “User” or "your Company".
Individually, Nakama and the Client can be referred to as "Party" or together are referred to as "Parties".
1.1 “Account Details” requires the login and password of the Client to access and make use of the services;
1.2. “Data” means the information, data, text, materials that the Client in the framework of the Services shares or makes available on the Platform;
1.3. “Services” means the applications chosen by the client and all the performance and
functionalities which Nakama in connection therewith delivers, including the management, availability and the operation of the Platform;
1.4. “Intellectual Property Rights” means intellectual property rights, including copyrights, rights in logos, inventions, trade secrets and know-how, design rights, patents, trademarks, database rights, all rights in computer software and data, all intangible rights with respect to the foregoing, in any case throughout the world and whether registered or not; and including all approved registrations and applications for registrations, renewals or extensions, the right to claim damages in case of infringements and all other similar forms of protection which apply wherever in the world; personally identifiable information means any information relating to an identified or identifiable natural person;
1.5. “Platform” means the hardware and software through which the Services are delivered;
1.6. “Software” means the computer program that is part of the services, and is installed on the Platform;
2.1. Nakama grants Client access to and a right to use the Services after the Client has indicated which services they wish to purchase and after having accepted the Nakama proposal, including the explicit acceptance of the Terms and Conditions.
2.2. The various Services are explained in detail in our proposal. Specifications concerning the technical features and functionalities of the Services can be obtained from Nakama upon request.
2.3. The right to access and to use the Services is granted to the Client on a non-exclusive, nontransferable manner and applies to the entire world.
2.4. The Services are provided without any guarantee of a particular application, other than as described in our proposal.
2.5. The Client accesses the Services by logging in with the account information. The account information may only be used by the Client and not be passed on to other companies, whether affiliated companies or not.
2.6. To carry out the Services, Nakama, without discussing it with the Client, may appeal to a third party, including but not limited to hosting service providers.
3.1. Data remains at all times the property of the Client. Nakama will only use the Data in accordance with the provisions of the Terms and Conditions.
3.2. If the Data entirely or partially infringes the rights of third parties (including, but not limited to, copyright) or is not authorized by law (for example, but not limited to, racist or defamatory Data) the Client must inform Nakama of the situation and immediately delete such Data from the Platform (i) once the client has become aware or should reasonably have this qualification, or (ii) after Nakama has requested the Client to do so. Nakama can in no way be liable for damage caused by Data. This responsibility rests with the Client.
3.3. The Client is responsible for ensuring that the data is free of errors, computer viruses, bugs or other deficiencies which could harm third party data on the Platform or the Platform.
4.1. Data remains at all times the property of the Client. Nakama will only use the Data in accordance with the provisions of the Terms and Conditions.
4.2. If the Data entirely or partially infringes the rights of third parties (including, but not limited to, copyright) or is not authorized by law (for example, but not limited to, racist or defamatory Data) the Client must inform Nakama of the situation and immediately delete such Data from the Platform (i) once the client has become aware or should reasonably have this qualification, or (ii) after Nakama has requested the Client to do so. Nakama can in no way be liable for damage caused by Data. This responsibility rests with the Client.
5.1. The Intellectual Property Rights resting on the services and on the Platform belong in their entirety to Nakama. Signing this agreement in no way implies that Nakama is transferring Intellectual Property Rights to the Client.
5.2. If Nakama – at the request of the Client (and whether or not against payment) – develops additional functionalities, interconnections, modifications to the Platform or other components (“custom development”), any Intellectual Property Rights that may arise from such custom development shall be exclusive property of Nakama. At Nakama’s first request, the Client shall perform all formalities that may be required in this respect (if any).
5.3. Intellectual Property Rights that remain on the Data are property of the Client. The Client grants Nakama the right to use these Data in order to provide the Services to meet its obligations under these Terms and as otherwise provided in these Terms and Conditions.
5.4 The Client acknowledges that Nakama may: (i) use the Client’s name and/or logo for the sole purpose of identifying the Client as a client of Nakama, including on Nakama’s website; and (ii) produce one or more case studies summarizing the way in which the Services provided by Nakama have been implemented, for internal use and in presentations to other clients or potential clients. Where any such case studies: (a) include information beyond what is available in the public domain; or (b) will be used by Nakama for promotional and publicity purposes, the content of the case study will be subject to the Client’s review and approval.
6.1. The parties agree that the client will have to pay compensation in accordance with the price list, available on individual request.
6.2. Unless explicitly agreed upon otherwise between parties, all recurring fees shall be paid by month and shall be invoiced the first day of the month. A price reduction of 15% applies if the Client pays at once for a year. Prepaid fees, credits or usage units are not refundable and shall not be credited, regardless of the potential lower usage in respect of the Client.
6.3. The fee must be paid within 10 days of the invoice date.
6.4. In case of non-payment of a fee or a bill within the prescribed period, Nakama has the right to, without prior notice, charge a delay interest to the amount of 1% per month as of the due date on the unpaid invoice. Also, automatically and without prior notice, compensation amounting to EUR 250,00 will be payable, without prejudice to our right to claim higher compensation provided proof of higher actual damage. In the case of non-payment of a fee or a bill within 25 days after the due date, the outstanding balance will be collected by a third party. All resulting costs will be borne by the Client.
6.5. We have the right, without prior notice, to fully or partially suspend the provision of our services if the Client fails to comply with any obligation towards us, which includes the failure to make any payment, for any reason whatsoever. The Client acknowledges that it can never suspend its obligation to pay unilaterally.
6.6. Our invoices are considered accepted as final if they are not protested within fourteen (14) calendar days after the invoice date. This deadline is final. The protest of a bill will only be taken into consideration when writing by registered letter to the registered office of Nakama. Any protest of an invoice shall include at least the following information: (i) the date of the invoice and the invoice number; (ii) the part of the bill being protested; and (iii) an explicit justification for the protest.
6.7. Nakama may on its own initiative change the fee. Where the fee is increased in a period of twelve (12) months by more than 10%, the Client has the right to terminate the Terms and Conditions with a notice period of three (3) months. The Client must submit such termination in writing or communicate by e-mail to Nakama within fifteen (15) days of the publication or disclosure of the increase above whose threshold is reached.
6.8. All other costs than the use of the Nakama Products, (e.g. flyers for awareness campaign, rewards) are not included in the price and are the responsibility of the Client.
7.1. Nakama can perform on its own initiative updates and / or modifications to the Platform. These updates and / or modifications are performed automatically, without the Client having to grant this permission and so the Client can always enjoy the latest version.
7.2. No fee will be charged for updates and / or modifications Nakama conducts on its own initiative.
7.3. Performed updates and / or modifications shall be deemed to form part of the Platform and are subject to these Terms and Conditions.
7.4. Updates and / or modifications may have an impact on the functioning and availability of the Platform. Nakama will use reasonable efforts to minimize this impact.
8.1. Nakama stresses that in the processing of the Data on the Nakama platform, including Personal Data, it will act as a processor within the meaning of the European Regulation of April 26, 2016 on the protection of privacy with regard to the processing of personal data ("General Data Protection Regulation"). The Client will act as the controller for the processing of personal data. We will not process your Personal Information for purposes other than the provision of services, unless otherwise provided in these Terms and Conditions. We will only process this personal information at your request and in the context of this agreement and for the duration of this agreement, unless otherwise specified.
8.2. The Client is responsible for its obligations in its capacity as responsible for the processing of personal data as specified in the GDPR regulation, to comply.
8.3. Nakama confirms that it complies with its obligations as a processor of Personal Data in accordance with the GDPR regulation. This includes proceeding where possible to pseudonymization and encryption of the Personal Data and the technical and organizational measures for the processing of Personal Data.
8.4. In order to allow Nakama to provide the Services, the Client will submit at least the following Personal Information:
Name, address, nationality, e-mail, phone number, contact information in case of emergency and bank account number.
8.5. If the Client also transfers to Nakama Personal Information concerning health, the Client must notify Nakama explicitly about this.
8.7. Nakama may use the Personal Information provided by you for statistical and analytical purposes.
8.8. Nakama will keep these Personal Data for the duration of these Terms and Conditions. At the termination of these General Terms and Conditions, these data will be deleted or anonymized, as defined in Article 4.4 of these Terms and Conditions.
8.9. Nakama will immediately, and in any case within 24 hours, notify the Client in case of: Investigation, summons or request for inspection or control from a competent government agency; · Intention to disclose personal data to a competent authority; Detection of or reasonable assumption that a databreach has occurred. In the event of a databreach, Nakama will immediately take adequate measures. In addition, Nakama will provide the Client with all relevant information regarding the data breach. In order to tackle the Data breach as efficiently as possible, Nakama will offer its full cooperation to the Client.
8.10 For information about the rights of users with regard to Personal Data, we refer to our privacy statement which you can find on our website.
9.1. Nakama endeavors and will provide all necessary and reasonable effort to enable the Platform to provide clients for 99.99% of the time (calculated from midnight on the first day of the month until midnight on the last day of the month). This is an obligation of means and not of result.
9.2. Parties affirm Nakama will not be liable for unavailability of the Platform, due to: Force majeure; Circumstances attributable to third parties; Maintenance (including updates and adjustments) of the Platform.
Nakama is not liable in case it is prevented by force majeure, or other circumstances beyond its control, to execute the agreement. Such as: social conflicts, interruptions of the electricity network (by means of blackout), interruptions of the telecommunications network, unavailability of web hosts or social media, etc.
The Client acknowledges that in terms of software development, an impeccable operation of a computer configuration (the ensemble of hardware and software) can never be guaranteed and that this, as well as certain cases of force majeure or malicious intent (hacking, denial of service, etc.), can result in the loss of (even all) programs and / or Data of the Client. The Client therefore commits to take, in his opinion, needed precautionary measures, so that the consequences of such circumstance are limited circumstances attributable to the Client.
9.3. Conditions enumerated in Article 9.2 will not be included in the availability rate listed in Article 9.1.
9.4. Nakama will inform the Client in advance at least 24 hours of scheduled maintenance (including updates and adjustments) of the Platform.
9.5. The only compensation that a client can obtain for the absence of the availability percentage is the ability to be able to get a 5% extra vacancies without a fee being charged for this.
10.1. For 1-year contracts: unless terminated by the Client respecting a one (1) month notice period before to the expiry of the then current term, the agreement shall be automatically renewed for successive periods of one (1) year by giving notice to Nakama by email to email@example.com. For month by month contracts: the Client can terminate the Agreement at any time by giving notice to Nakama by email to firstname.lastname@example.org.
10.2. If the Client fails to fulfil its obligations under these Conditions (except in case of fraud or gross negligence), Nakama will, without any formalities, serve the Client with a notice of default. The Client has a period of fifteen (15) days following the formal notice to fulfil its contractual obligations. If the Client does not respond here, this qualifies as gross negligence.
10.3. In the event of fraud or gross negligence, Nakama has the right to terminate this agreement with immediate effect, without any formality. The fees already paid, including those relating to the remaining maturity, remain vested by Nakama. Limitation of liability
11.1 Nakama will provide all reasonable efforts to ensure the proper functioning of the Platform.
11.2 Nakama represents that the Platform is developed in a professional manner and is consistent with generally accepted industry standards. Nakama will continue to improve the Platform and warrants that the Platform at all times will comply with such standards. However, Nakama does not warrant that the Platform is entirely free of small bugs and errors or that the Platform will function without interruptions.
11.3 Nakama provides the Platform “as is”. Nakama does not warrant that the functions contained in the Platform will meet the User’s performance requirements or that the Platform will operate in accordance with the User’s expectations. The User accepts responsibility for the selection of the Platform, its use and the results to be obtained there from. Nakama makes no warranty of any kind, express or implied, and the warranty of fitness for a particular purpose is hereby excluded.
11.4 Nakama can only be held liable for gross negligence (“zware fout”, “faute grave”). It cannot be held liable when a defect or malfunction of the Platform is attributable to (i) a software or hardware defect that was not issued by Nakama, or (ii) API Issues, or (iii) the fact that changes or amendments to the Platform have been made without its permission, or (iv) if the User fails to report immediately any defect together with documentation and information relating to the occurrence of the defect
11.5 The User understands that the Platform is an online application. Nakama cannot be held liable when a defect or malfunction of the Platform is attributable to network or communication issues, or to hacking, malware or other forms of misuse
11.6 Nakama will not be liable to the User or third parties for loss of profits or business, loss of data, indirect, consequential or incidental damages, even if Nakama has been advised of the possibility of such losses or damages. For direct damages, if repair in species is not possible, the liability of Nakama toward the User (on contractual grounds as well as in tort) shall never exceed an amount equal to the license fees paid by the User over the last twelve months. The User shall take all necessary measures that can reasonably be expected to limit its damage.
12.1. The Client acknowledges and accepts that any change in the ownership or management of Nakama cannot give rise to termination of the agreement between the parties and / or these Terms and Conditions.
12.2. These Terms are governed by Belgian law.