Terms of Service

3.1. Under the terms and conditions of the Agreement, and subject to payment of the applicable License Fee(s), TalkJS grants, and Licensee accepts, a non-exclusive, non-transferable, non-sublicensable, and revocable license to install, copy, and use the TalkJS Services.

3.2. The TalkJS Services and Documentation are available to Licensee at talkjs.com/docs. Licensee can obtain access to the TalkJS Services by signing up at talkjs.com.

3.3. Any one (1) license grants Licensee the right to embed the TalkJS Services inside one (1) Software System operated by Licensee, provided the Software System has a number of monthly active users less than or equal to the number described in the Commercial Terms.

3.4. In addition to the Documentation, TalkJS shall provide Licensee with a reasonable level of support via email, chat, or a similar mechanism, in the form of consultations, assistance, and advice concerning installation, configuration, and use of the TalkJS Services. Once the TalkJS Cloud Service is installed and working, any additional support shall, in principle, fall under the agreed terms of articles 6 and 7.

3.5. Licensee shall install and use the TalkJS Services as described in the Documentation.

3.6. Licensee has no right to (sub)license, sell, assign, modify, translate, decompile, create derivative works from, or otherwise change or commercially exploit the TalkJS Services, nor make the TalkJS Services available to any third party without the prior, explicit, and Written approval of TalkJS.

3.7. Licensee is not permitted to reconstruct the source code of the TalkJS Services by means of reverse engineering.

3.8. If Licensee requires information to enable interoperability of the TalkJS Services with other software, Licensee shall request this from TalkJS in Writing, providing the motivation for the request. TalkJS will inform the Licensee within a reasonable period whether the requested information can be provided and under which conditions.

4.1. After expiry of the Term, the Agreement is automatically extended for an indefinite period. TalkJS and Licensee may terminate the Agreement with a notice period up to the next payment obligation of the Licensee with respect to the License Fee (depending on the Agreement, this means the end of the month or the end of the year). Termination may be given without reason or motivation.

4.2. TalkJS and Licensee may terminate the Agreement, in whole or in part, with immediate effect and without any obligation to compensate for damages, if one of the following circumstances occurs:

4.3. TalkJS may terminate the License, without judicial intervention and without any obligation to compensate for damages, with immediate effect by giving Written notice to the Licensee, if:

4.4. A Party seeking termination of the Agreement shall provide Written notice of termination to the other Party.

4.5. Upon termination of the Agreement, for any reason, the Licensee shall promptly delete the TalkJS Services from its Software System(s) and return or delete all copies, including modified copies, if any. The Licensee shall certify such deletion in Writing to TalkJS.

5.1. All agreed fees, as described in the Commercial Terms, shall be paid in a timely manner and in compliance with the payment conditions set out in the Commercial Terms and indicated during the online order process, regardless of whether the TalkJS Services are used or not.

5.2. All prices are exclusive of VAT and other government levies that have been or may be imposed. TalkJS has the right to increase its prices to include VAT and other government levies that have been or may be imposed.

5.3. All invoices and payments shall be in euros, unless agreed otherwise in Writing.

5.4. Licensee shall pay invoices by direct debit or credit card, or—if agreed in the Commercial Terms or with respect to an Additional Services fee—within thirty (30) days after receipt of the invoice.

5.5. If the Licensee fails to pay the fees due in a timely manner, statutory commercial interest shall be payable on the outstanding amount without a demand or notice of default being required. If the Licensee still fails to pay the amount due after receiving a demand or notice of default, TalkJS may refer the debt for collection. In such a case, the Licensee shall also be obliged to pay all in-court and out-of-court expenses, in addition to the total amount due, including all costs charged by an external expert.

5.6. In the case of non-payment of any part of the License Fee or the Additional Services fee, the License may be terminated by TalkJS in accordance with article 4 of this Agreement.

5.7. Upon termination of the Agreement, for any reason, the Licensee shall promptly pay all outstanding License Fees and any other fees or amounts due.

6.1. Additional Services are services that can be performed by TalkJS but are not included in the standard services of the TalkJS Services. Additional Services incur extra costs for the Licensee.

6.2. TalkJS can provide Additional Services such as maintenance, creation of updates, training, and service or support regarding the TalkJS Services, on terms to be agreed upon between the Parties.

6.3. Before Additional Services are performed, a Written price indication will first be issued for approval. Depending on the complexity, a step-by-step plan may also be provided.

6.4. In principle, TalkJS performs Additional Services at a consultancy rate of EUR 120 (one hundred twenty euros) per hour. This rate is indicative, and TalkJS may, at its sole discretion, deviate from this rate in its offers for Additional Services.

7.1. The Licensee acknowledges and agrees that the TalkJS Services are protected by Intellectual Property Rights. The Intellectual Property Rights relating to the TalkJS Services are and shall remain the exclusive property of TalkJS.

7.2. The Agreement does not grant the Licensee any right or title to the Intellectual Property Rights of TalkJS, other than the License provided under articles 3 and 8 of these terms of service, nor does the Agreement constitute a transfer or assignment of the Intellectual Property Rights to the Licensee.

7.3. If TalkJS, whether or not upon request of the Licensee, incorporates any new features or functionalities into the TalkJS Services, such new features and/or functionalities shall be the sole and exclusive property of TalkJS, unless explicitly agreed otherwise in Writing.

7.4. TalkJS shall, at its own expense, defend any claim or proceeding brought against the Licensee based on an allegation that the TalkJS Services constitute an infringement of Intellectual Property Rights, provided that the Licensee promptly notifies TalkJS in Writing of such claim. The Licensee shall provide reasonable cooperation and assistance to TalkJS for the defence of such claim or proceeding. If the TalkJS Services, or any part thereof, as a result of any suit or proceeding so defended, are held by a court or arbitration panel to infringe the Intellectual Property Rights of third parties, TalkJS shall, at no cost to the Licensee, either (a) procure for the Licensee the right to continue using the TalkJS Services, or any part thereof, or (b) replace or modify the TalkJS Services to become non-infringing.

7.5. The Licensee shall not infringe the Intellectual Property Rights of TalkJS or its suppliers, nor perform any other acts by which the Intellectual Property Rights of TalkJS or its suppliers, or the value thereof, could be harmed or negatively affected. This includes, without limitation, that the Licensee shall not reproduce, multiply, modify, publish, translate, process, rent, exploit, or commercialise the Intellectual Property Rights of TalkJS, or use them in any other infringing way, entirely or partially, in the original or modified form, for commercial or non-commercial purposes.

7.6. The Licensee is not permitted to remove any designation concerning copyrights, trademarks, trade names, or other rights of intellectual property from the TalkJS Services, the Documentation, and/or any other TalkJS material.

8.1. The Licensee is encouraged to publicly report its use of the TalkJS Services, for example in press releases, annual reports, or environmental reports concerning its organisation.

8.2. To this end, TalkJS grants the Licensee a non-exclusive, non-transferable, non-sublicensable, and revocable license under its trademark(s) and copyrights concerning the name “TalkJS” and the associated logos as made available on the TalkJS website (talkjs.com) or specifically provided by TalkJS. The Licensee must use the name and logos in unmodified form and must adhere to any specific rules provided by TalkJS, which are generally available on the TalkJS website.

8.3. The Licensee may not create any false or misleading impressions regarding its affiliation with TalkJS.

8.4. The Licensee may not register or apply for any trademarks or internet domain names that contain the name “TalkJS” or any confusingly similar designation. TalkJS is entitled to demand the transfer of any such trademarks or domain names by the Licensee to TalkJS.

8.5. In promoting the TalkJS Services, TalkJS is entitled to use the Licensee’s name and logo in promotional material regarding the TalkJS Services, unless the Licensee objects to such use.

8.6. The license granted under this article terminates automatically upon termination or expiry of the Agreement, regardless of the reason.

9.1. All definitions and terms used in this article have the same meaning as in the GDPR. If a term does not exist in the GDPR, it shall be given a meaning closest to an existing definition in the GDPR.

9.2. The Parties shall act in accordance with the provisions of the GDPR and any future national or European statutory and other rules on the processing of personal data that may be in force from time to time, insofar as such provisions legally apply to a Party. If future statutory or other rules require adjustments to the Agreement, the Parties shall consult to make new arrangements that reflect the intent of the Agreement as closely as possible.

9.3. TalkJS shall be considered the data processor and the Licensee the data controller. TalkJS shall only store, copy, or use Licensee Data, including email addresses, telephone numbers, and names of Users, to the extent necessary to perform its obligations under the Agreement and/or for maintenance. TalkJS does not control the purposes and means of the processing of personal data. Nothing in the Agreement transfers control over personal data to TalkJS. TalkJS shall inform the Licensee without undue delay if, in its opinion, an instruction given by the Licensee infringes any applicable privacy regulation.

9.4. If the Licensee processes personal data, it will process only general personal data. Under no circumstances will TalkJS accept responsibility or liability for the processing of sensitive personal data.

9.5. TalkJS shall take appropriate technical and organisational measures to ensure an appropriate level of security to protect personal data on the TalkJS Services against destruction, loss, alteration, unauthorised disclosure, or access. The standard measures taken by TalkJS can be viewed at talkjs.com/security.

In determining the measures to be taken, TalkJS shall consider the state of the art, implementation costs, and the nature, scope, context, and purposes of the processing operation concerned, as well as the various risks, in terms of probability and severity, to the rights and freedoms of individuals.

The Licensee shall take appropriate technical and organisational measures to ensure that personal data on the TalkJS Services is stored securely. This includes, but is not limited to, following all security recommendations given in the Documentation or suggested to the Licensee by TalkJS staff.

9.6. At the Licensee’s first request, TalkJS may cooperate with the parties concerned to exercise their rights regarding the processing of personal data in accordance with Articles 12 to 23 of the GDPR, including the right to information, access, removal (including the “right to be forgotten”), rectification, transferability, objection, and rights in respect of automated individual decision-making, including profiling. This cooperation will in principle be treated as Additional Services.

9.7. TalkJS agrees to provide the Licensee with the necessary information, upon request, to enable the Licensee to investigate TalkJS’s compliance with the provisions of this article.

9.8. The Licensee may engage an independent expert to investigate whether TalkJS fulfils the obligations described in this article. The independent expert will be under an obligation of confidentiality. Audits may be conducted no more than once per year. TalkJS shall cooperate in the audit and make all reasonably relevant information available as soon as possible. The costs of such audits, when carried out at the instruction of the Licensee, shall be borne by the Licensee.

9.9. TalkJS shall inform the Licensee immediately, and in any case within 48 hours, if it becomes aware of any breach relating to personal data. This information must enable the Licensee to meet its obligations under Articles 33 and 34 of the GDPR.

9.10. TalkJS is under no obligation to perform assessments as described in Articles 35 and/or 36 of the GDPR.

9.11. TalkJS may use sub-processors without the Licensee’s prior Written permission. The list of sub-processors is available upon request. If TalkJS engages a new sub-processor, it will notify the Licensee, who may object in Writing. If TalkJS continues with the engagement after an objection, the Licensee may terminate the Agreement with immediate effect. TalkJS remains responsible for the performance of its sub-processors.

9.12. TalkJS agrees to maintain confidentiality over personal data it processes and ensures that persons authorised to process personal data undertake to maintain confidentiality.

9.13. Upon termination of the Agreement, TalkJS shall:

9.14. The Licensee shall assess and inform TalkJS about how long certain personal data may be stored on the TalkJS Cloud. Upon the Licensee’s Written request, TalkJS will delete the requested data. TalkJS shall determine, at its sole discretion, whether this deletion is considered an Additional Service.

9.15. The Licensee warrants that data processing will be carried out in accordance with the law. This means, in any case, that the Licensee warrants it is entitled to collect and process such data.

9.16. The Licensee shall indemnify TalkJS for any loss or damage to personal data, and for costs resulting from any claims by third parties—expressly including data subjects and supervisory authorities (such as the Dutch Data Protection Authority)—relating to or arising from any unlawful processing operation and/or any other violation of the GDPR or the Agreement attributable to the Licensee.

9.17. TalkJS shall ensure that every processing operation of personal data performed by or on behalf of TalkJS, including by third parties engaged for the execution of the Agreement, is carried out within the European Economic Area (EEA) or in countries offering an adequate level of protection in accordance with the GDPR.

9.18. TalkJS shall ensure in-transit encryption of all data.

9.19. TalkJS shall ensure at-rest encryption of all data for Licensees on the Enterprise plan of the TalkJS Services. TalkJS cannot guarantee at-rest encryption for Licensees on any other plan.

11.1. The Agreement shall not be assigned or otherwise transferred by the Licensee without the prior Written consent of TalkJS, which shall not be unreasonably withheld. Any such assignment without consent will be null and void.

11.2. The Licensee accepts that TalkJS may transfer and assign the License (entirely or partially) and the performance of all or some of TalkJS’s rights and obligations under the Agreement to a third party at any time without the prior Written consent of the Licensee.

12.1. The TalkJS Services are provided “as is” and without any guarantees for the Licensee, unless the Licensee and TalkJS make other arrangements concerning guarantees in the Commercial Terms. TalkJS has the right to incorporate any new features or functionalities into the TalkJS Services, even if these do not combine well with the Software System. The Licensee cannot derive any rights with respect to these new features or functionalities, or to the TalkJS Services without them, unless the Licensee and TalkJS make other arrangements concerning guarantees in the Agreement.

12.2. The Licensee acknowledges having been fully informed of the characteristics of the TalkJS Services and declares that TalkJS has completely fulfilled its duty of informing the Licensee with respect to the TalkJS Services and their functionalities.

12.3. The Licensee acknowledges and agrees that the TalkJS Services are provided by TalkJS with no other guarantees or obligations than those stated in the Commercial Terms. The Service Level mentioned in article 14 of these terms of service is only available to Licensees who have chosen the Enterprise plan of the TalkJS Services.

12.4. The foregoing warranties are in lieu of all other warranties, expressed or implied, including but not limited to implied warranties of fitness for a particular purpose and warranties of merchantability. Except for the warranty expressly acknowledged hereunder, and to the fullest extent permitted by law, TalkJS hereby disclaims—and the Licensee hereby waives—all other warranties, express or implied, including but not limited to all implied warranties of fitness for a particular purpose and all implied warranties of merchantability.

13.1. Under no circumstances shall TalkJS be liable for indirect, incidental, or consequential damage arising from the use of the TalkJS Services or Additional Services, including but not limited to the unavailability of the TalkJS Services.

13.2. In any event, the maximum liability of TalkJS towards the Licensee, on whatever account, shall be limited to the total amount of all License Fees or Additional Services fees paid by the Licensee to TalkJS for the relevant TalkJS Services or Additional Services giving rise to the liability during the year prior to the claim, or the amount of EUR 100,000 (one hundred thousand euros), whichever is lower.

13.3. TalkJS is never liable for damages caused by:

13.4. The Licensee shall indemnify TalkJS from the consequences of any claims by third parties arising from the execution of the Agreement and caused by acts attributable to the Licensee.

13.5. To the extent permitted under applicable law, TalkJS shall not be liable for any loss, damage, or fines imposed by regulatory bodies as a result of or relating to the TalkJS Services, including but not limited to loss of data, income, profit, or other economic advantages. No liability shall exist for damages or fines imposed by regulatory bodies that have not been reported to TalkJS in Writing within thirty (30) days of their occurrence, or for damages where the Licensee failed to take appropriate measures to limit such damages.

14.1. The aim of this article is to describe the operational services with regard to the TalkJS Services for Enterprise clients. This article provides a reference framework for the expectations regarding service and support levels for Licensees who have chosen the Enterprise plan for the TalkJS Services. Licensees who have chosen any other plan for the TalkJS Services have no Service Level.

14.2. TalkJS will always aim to resolve Incidents within the Response and Recovery times set out in this article. If it appears that an Incident does not qualify as a Defect, a TalkJS employee will contact the Licensee to determine whether the Licensee requires Additional Services.

Emergency Changes and Standard Changes (with two priority levels) are performed on the basis of the Agreement. Non-standard Changes are carried out on a project basis and charged separately at the agreed prices and rates.

14.7. The priority of Incidents is classified by the person who reports the Incident to the Service Desk, based on the applicable classification table. The person reporting the Incident must provide a clear justification for the chosen priority. In the event of a dispute, the classification given by TalkJS to the Incident will prevail.

14.9. If a priority 1 or priority 2 Defect can be resolved with a workaround that must be implemented by the Licensee, the Licensee is obliged to give full cooperation to this implementation. If the Licensee fails to cooperate, the time between offering the workaround and the Licensee’s full cooperation will not count as time when the TalkJS Services are unavailable.

14.10. Standard Changes and Non-standard Changes are always requested through the Service Desk. Emergency Changes can also be reported to TalkJS via telephone, if TalkJS is available via this channel at the time.

14.11. TalkJS guarantees an uptime of 99.9%, measured per month. Any downtime due to the following does not affect the uptime:

14.12. The uptime is calculated as follows:

14.13. If TalkJS does not meet the availability level described in article 14.11, the Licensee will receive a discount on its License Fee. For the first month in which TalkJS does not meet the availability level, this discount is 10% of that month’s fee for every 0.1% less uptime. If the guaranteed uptime is not met in subsequent months, the Licensee will owe no License Fee for those months, and the amount will be set off against the next month’s License Fee.

14.15. Amendments to the Service Level can only be agreed upon with the Contact Persons for the Agreement in Writing.

14.16. The Service Desk is available at talkjs.com, under the message icon on the main screen.

14.17. The Parties may deviate from the provisions in this article in the Commercial Terms.

16.1. If TalkJS is unable to satisfy its obligations under the Agreement as a result of force majeure, TalkJS shall not be liable for any delays or shortcomings in performance, nor for any damage arising from this for the Licensee, provided that TalkJS:

16.2. All causes that are beyond the reasonable control of TalkJS, including but not limited to fire, explosions, power failures, earthquakes, floods, very severe storms, strikes, embargos, labour disputes, acts by the civil or military authorities, (cyber) terrorism, natural disasters, acts or neglect of internet traffic services, acts or neglect of regulatory or government bodies, and the improper performance of obligations by suppliers or contractors of TalkJS, shall be considered force majeure.

17.1. Amendments to the Agreement can only be agreed upon between the Parties in Writing.

17.2. TalkJS reserves the right to adapt or amend the Agreement at any time. The Licensee shall accept these changes within the Term or otherwise terminate the Agreement after the Term.

17.3. Articles 7 (Intellectual Property Rights), 14 (Liability), 15 (Confidentiality), and 18 (Applicable Law) remain applicable after termination of the Agreement.

17.4. The fact that TalkJS does not exercise any right or does not use any legal remedy does not constitute a waiver of that right or remedy.

17.5. The section headings in these terms of service are for convenience only and shall not be used in construing or interpreting any of its terms.

17.6. If any provision of the Agreement is found to be illegal, invalid, or unenforceable, the remaining provisions of the Agreement shall remain valid, enforceable, and in full effect. In the event of nullity, invalidity, or unenforceability of one or more provisions, the Licensee and TalkJS undertake to negotiate in good faith to replace the affected provision with a valid and enforceable one that bears the closest resemblance to the intentions of the Agreement.

18.1. The Agreement shall be governed by, and construed in accordance with, the laws of the Netherlands.

18.2. Disputes arising from this Agreement shall be submitted to the competent court of the District Court of Oost-Brabant (“Rechtbank Oost-Brabant”), location ’s-Hertogenbosch (“locatie ’s-Hertogenbosch”), the Netherlands.