Service Agreement and license terms and conditions
Last update: Jan 2024
1. General Information
This Agreement sets out the general terms and conditions that apply to the Customer’s use of the Smaragt platform.
By implementing, using or otherwise making use of Smaragt, the Customer agrees to be bound by the general terms and conditions set out in this Agreement and its annexes. If the Customer does not accept this, the Customer may not implement, use or otherwise make use of Smaragt.
All prices are based on the fact that the Customer him / herself produces and runs campaigns in the Smaragt platform.
For all subscriptions Smaragt offers a 'Frequently Asked Questions' and ticket support. For enterprise users Smaragt offers a thorough introduction and onboarding to the platform.
Smaragt provides ticket support on the platform 10:00 – 17:00 during weekdays. All inquiries should be sent to support@smaragt.com.
2. Smaragt's Services
Under this Agreement, the Customer may access Smaragt for the purpose of building and operating gamification campaigns from the Smaragt platform.
Smaragt's services are offered on a SaaS model, i.e. that the Customer always has access to the software. Smaragt's services are changed / improved continuously, but no guarantee is given for full compatibility back in time.
In normal circumstances no live campaigns will be affected by updates or new releases.
Smaragt shall provide hosting, upgrading and maintenance of the Smaragt platform which is included in the subscription.
3. Payment of the license fee
The license fee is subscription or agreement-specific and is regulated in the Agreement specification.
The license fee shall be paid on time, as agreed between the Parties. Unless otherwise stated in the above, there is a 14 day net payment period for invoices from Smaragt.
Invoicing of the subscription or agreement fee is done monthly, unless otherwise agreed. Smaragt invoices the full amount upon contractual conclusion. Smaragt must be made within the agreed payment period of 14 days.
Extra costs when exceeding the subscription limits
The extra costs for participants when exceeding the subscription limits are also invoiced monthly.
The Customer will be alerted before exceeding the subscription limits at 80% and 100% on the provided email address.
To minimize the risk of extra costs above the subscription license fee, The Customer has the option to automatically stop the campaign(s) when exceeding the limits.
In case of late or partial payment, Smaragt has the right to permanently remove the Customers Company account and Customers account at any time.
The Customer will be be notified at the email address that is used by The Customer to login to the Smaragt customers account
Smaragt has the right to permanently remove the Customers Company account and and Customers account at any time, without any reasonable timespan.
When the Customers Company account is removed, all files, data and games that are uploaded and created with Smaragt are permanently deleted from our servers.
Smaragt is free to adjust all subscription license prices at any time. A price regulation will enter into force within a minimum of one (1) month after the applicable date.
4. Rights to data and the Smaragt platform
The Customer will receive an unrestricted, non-transferable, non-exclusive right to use the Smaragt platform for the purpose of giving the Customer access to using the set of functions applicable at any given time under the agreement between the Parties.
The registered data regarding end user customers and the content used in connection with the Customer’s built-up campaigns always belong to the Customer.
The Customer is able to export and manage all participant data that is collected by the Smaragt Platform.
Smaragt has the right to use data on an aggregated and entirely anonymous level, as part of Smaragt’s business and statistical purposes. Data used for statistical purposes, but also for public demo's, portfolio cases, training of staff and AI. The data will not contain personal data.
Red Button Digital BV (NL) has ownership, copyright and all other intellectual property rights to the Smaragt platform.
The Customer may not break or modify any files and codes that give access to use of Smaragt. The Customer is also not permitted to change or remove any statement and / or comments on copyright, trademark or other rights existing in Smaragt.
The Customer is not entitled to copy Smaragt unless, and only to the extent that, such actions are permitted under mandatory laws and the Customer shall in all respects comply with such laws.
5. Data protection and hosting
The Customers are individually responsible for complying with their respective obligations regarding any processing of personal data by the Smaragt Platform on behalf of the Customer in connection with the use of Smaragt. Smaragt acts as a data processor only on instructions from the Customer who is responsible for the data.
As data processor, Smaragt takes the necessary technical and organizational security precautions to prevent information being accidentally or illegally destroyed, lost or impaired, and also to prevent them from becoming known to unauthorized persons, being misused or otherwise processed in violation of the Personal Data Processing Act. At the Customer’s request, Smaragt shall provide sufficient information to ensure that the aforementioned technical and organizational security measures have been taken.
Smaragt software is hosted through Amazon cloud services at Amazon Web Services in Europe (Frankfurt, Milan). We expect an uptime in the period of 99%. No compensation is given for downtime.
Other data protection conditions are dealt with separately in any data processing agreement between Smaragt and the Customer. A data processing agreement will have to be in force between the parties before the Customer can send out a live campaign collecting data.
Legality
The Customer shall ensure that the Customer’s use of Smaragt in all respects is lawful. In particular, the Customer must ensure that the necessary consent for processing personal data is obtained and that all relevant rules regarding the processing of personal data, on marketing, on consumer protection, on spam and on use, etc. is complied with.
The customer is entirely responsible for compliance with all relevant legislation relating to implementation and the use of Smaragt.
Smaragtis created for free promotional marketing games only. It is not allowed to use Smaragt to create paid (online) casino games, gambling games or other games that are used to gain money.
7. Confidentiality
Smaragt treats all data, information and trade secrets relating to the Customer, that are acquired within the framework of cooperation and the use of the Smaragt platform confidentially.
The Parties shall keep confidential all information (written or oral) concerning the business and affairs of the other party and any specifications, drawings, diagrams, patterns or other materials that it shall have obtained or received or created as a result of the discussions leading up to or the entering into or the performance of the Agreement, shall only use such information in the proper performance of the Agreement and shall not without the other Party’s written consent disclose such information in whole or in part to any other person save those staff, subcontractors and agents involved in the implementation of the Agreement and who have a need to know the same and shall ensure that all such persons comply with the obligations in this Clause 7.2.
The Parties obligations in Clause 7.2 shall not apply to information that is already in the public domain other than as a result of a breach of Clause 7.2.
The Customer accepts that Smaragt may use examples from campaigns, name and logo in mentions for marketing purposes. All such use shall be made in good faith and to a fair extend.
8. Liability
The parties are liable under Dutch law.
Smaragt's total liability for all losses under this Agreement irrespective of the basis for this is limited to the license consideration that the Customer actually paid for the previous year, however, maximum EUR 5,000. In determining the limitation of Smaragt’s total liability pursuant to this clause 8.2, there shall be deducted any amount and / or the value of any compensation that Smaragt previously paid and / or granted to the Customer to cover or serve as a discount for the Customer’s loss, for which Smaragt is responsible.
Smaragt is not responsible for Smaragt’s applicability in relation to the specific use, that the Customer wishes or may have anticipated, including for integration or interaction between Smaragt and the Customer’s other hardware and software.
In no event shall either Party be liable to the other Party for operating loss, business and/or operational disruption, loss associated with lost data, reconstruction of it or lack of access to it, lost profit and revenue, lost savings, claims raised by third parties against the other Party, or indirect losses or consequential damages of any kind.
User-logins are personal and shall not be shared. The Customer is responsible for the security of its user-logins. That is, the Customer must manage the unique passwords and user names assigned by Smaragt in a defensible manner. If the Customer notices any misuse, Smaragt must be informed immediately.
It is possible to let the Smaragt platform automatically extract winners. The system extracts winners, matching the number of prizes that are for distribution in the given campaign. Smaragt disclaims all liability for the use of automatic winner extraction, handling of prizes and information to winners.
Smaragt recommends that in campaigns with prize pools of significant value, prizes, winnings and information to winners shall be handled manually.
In the case that Smaragt build campaign(s) for the Customer, it is the responsibility of the Customer to review and approve the final campaign and settings to ensure that the campaign is as intended.
Smaragt is not responsible for force majeure-like conditions, such as interruption of power supply, breakdowns in public available networks, flooding and similar conditions, which prevent or restrict the delivery of the Smaragt platform.
Smaragt is subject to product liability only to the extent that such liability arises under mandatory legislation.
If it is found that users cheat, any cleanup of the database can be performed by Smaragt and blocking of users will be at the Customer’s expense. This task is performed exclusively at The Customer’s request.
The limitations in this clause 8 shall not apply if the loss can be shown to be attributable to gross negligence or intentional conditions.
9. Transfer of rights
The Customer may not sell, distribute, license, rent out, lease, lend, pawn or otherwise transfer, transport or surrender Smaragt or the rights of use thereto to third parties, hereunder collect marketing permissions for third parties, without prior written permission from Smaragt.
Smaragt cannot, without prior written consent from the Customer, transfer all or part of its rights and obligations under this Agreement to any third party. Smaragt is, however, entitled at any time without the Customer’s consent to transfer its rights and obligations under this Agreement as part of a sale of the business operated by Smaragt or to companies that are group-associated with Smaragt.
10. Entry into force and termination
This Agreement shall enter into force on the date of the Customer’s acceptance of the Agreement and shall remain in force until it is terminated pursuant to this clause 10.
This Agreement can be terminated with effect from the end of the license period no later than 1 month prior to the end of the license period.
This Agreement will automatically renew for additional 1 year successive agreement periods, unless terminated by one of the Parties no later than 1 month prior to the end of an agreement period.
In the event of a material breach, the non-breaching party may terminate this Agreement with the defaulting party if the material breach has been pointed out with 14 days written notice and has not been rectified by the defaulting party.
In the event of termination of this Agreement, the Customer is obliged to discontinue using Smaragt. Upon termination, Smaragt is not required to repay any portion of the paid license consideration to the Customer, but in the event of termination as a result of material breach by Smaragt, the Customer may demand compensation for the loss suffered because of the limitations imposed by this Agreement in addition to a pro rata repaid portion of the paid license fee.
At the expiration or termination of the License Agreement, the Customers account in the Smaragt Platform will be deleted no earlier than 12 months after the expiration or termination. Smaragt undertakes to notify the Customer of the expected time of any such deletion no less that 14 calendar days in advance thereof. The account can be deleted prior to the 12 months after the expiration or termination of this License Agreement by contacting support through the chat support or at support@smaragt.com
Deletion of personal data is dealt with separately in the Data Protection Agreement between the Parties.
11. Choice of law and legal venue
Any dispute between the parties shall be governed by Dutch law at a district court or one of the sub-district venues.