Terms & Conditions

Terms of Service

Definitions

1. Whale: A limited company registered under the laws of Belgium, with its registered office at 9600 Ronse, Bredestraat 22, VAT BE-0698.913.308.
2. Accounts: Refers to the Customer Account or the User Account, and all Services related thereto.
3. Customer Account: Refers to a personal login to the core application that allows the Customer to access and use the Services. The Customer Account includes the following types of accounts:
   • Admin Account: For creating and managing User Accounts and account settings (hereinafter referred to as the "Admin Account").
   • Default Account: For setting up the User Accounts.
   • Read-Only Account: For providing an overall overview of the data.
4. Customer: Refers to any legal person who enters into an agreement with Whale regarding the Services to make these available to its Users.
5. Services: Refers to the services Whale offers to its Customers through an online Software as a Service (SaaS) platform.
6. Users: Refers to any employee of the Customer or any third party designated by the Customer that makes use of the Services.

Scope

1. All commercial relationships between Whale and the Customer are governed by the following, in descending hierarchical order:
   • (i) Where applicable, the written agreement between Whale and the Customer, including but not limited to the Data Processing Agreement (DPA);
   • (ii) These Terms of Service;
   • (iii) Belgian law.
2. By ordering the Services or entering into an agreement with Whale, the Customer acknowledges that it has read these Terms of Service and the Data Processing Agreement, and thereby accepts them.
3. The Terms of Service take precedence over any terms and conditions of the Customer, even if the latter stipulates that its terms and conditions are the only valid conditions.
4. Any repeated failure by Whale to exercise any right may only be construed as toleration of a particular situation and shall not give rise to a forfeiture of rights.
5. The invalidity of one or more provisions of these Terms of Service, or any part thereof, shall not affect the validity and enforceability of the other provisions. In such a case, Whale and the Customer shall negotiate to replace the invalid provision with an equivalent provision that aligns with the spirit of these Terms of Service. If Whale and the Customer are unable to reach an agreement, the competent court may mitigate the invalid provision to what is legally permissible.

Offer

1. Announcements on Whale’s website (usewhale.io) and/or on social media channels of Whale are entirely non-binding and may only be regarded by the Customer as an invitation to order the Services, unless explicitly specified otherwise.
2. An offer shall only be valid for:
   • (i) A specific order and shall not automatically apply to subsequent or similar orders;
   • (ii) The duration indicated in the offer, but in no case longer than ninety (90) days after receipt of the offer.

Conclusion of the Agreement

1. If the Customer has requested a demo of the Services and was assigned a demo account, the Customer can order the Services either through their demo account or by reaching out to a sales representative.
2. To consider an order valid, Whale requires that the Customer provides certain information truthfully, including but not limited to the number of Users.
3. An agreement shall become effective upon the occurrence of any of the following:
   • (i) Electronic confirmation of the agreement by an individual authorized to commit Whale; or
   • (ii) The commencement of the Services by Whale.
4. Whale reserves the right to request additional information regarding the Customer, its activities, or its creditworthiness. If the requested information is not provided, Whale reserves the right to refuse or suspend the Services.

Accounts

1. Upon the conclusion of the agreement, the demo account will either be converted into an Admin Account (as part of the Customer Account) or an Admin Account will be assigned to the Customer, granting them access to the Services, which are provided as Software as a Service (SaaS).
2. Through the Admin Account, the Customer may create additional Accounts according to their requirements. The Customer is responsible for informing its Users of the functionalities and limitations of their User Accounts, as well as the provisions of these Terms of Service.
3. The Customer remains fully responsible for the use of all Accounts under its Customer Account. The Customer is required to immediately cease and sanction any improper or unauthorized use of the Services of which it becomes aware.
4. The Customer is solely responsible for implementing appropriate security measures to safeguard the Accounts. It is recommended that each User and the Customer create unique passwords, change them frequently, or use single sign-on (SSO) options provided within their Account.
5. The Accounts provided are non-exclusive and non-transferable, except for the reassignment of Accounts as stipulated in Section 6.6 of these Terms of Service.
6. The Customer is permitted to reassign Accounts from former Users, who no longer require ongoing access, to new Users.

Delivery of Services

1. The provision of the Admin Account, as part of the Customer Account, to the Customer constitutes the delivery of the Services.
2. Upon delivery, the Customer is required to perform an initial verification, including but not limited to verifying the number of Users.
3. The Customer must notify Whale of any non-conformity within forty-eight (48) hours of delivery through the helpdesk or by emailing [email protected]. Failure to do so will result in the Customer being deemed to have accepted the delivery.
4. Unless explicitly agreed otherwise, the expected time of delivery of the Services is always approximate and non-binding. Any delays in delivery shall not result in fines, damages, substitution, or termination of the agreement at Whale’s expense.

Performance of Services

1. Whale undertakes to perform the Services to the best of its ability, in good faith, and with due care in accordance with its own professional criteria.
2. If issues arise during the performance of the Services, Whale will use reasonable efforts to resolve such issues as quickly as possible, without guaranteeing a specific resolution time.
3. Whale reserves the right to perform maintenance activities and updates regularly. While Whale will attempt to minimize any disruptions caused by maintenance, it does not guarantee uninterrupted use of the Services during such periods.
4. Whale may notify the Customer of scheduled maintenance or updates if deemed necessary. If the Customer requires personal notifications for such activities, they must submit a request via email to [email protected].

Changes in the Services

1. Whale reserves the right to modify the offering and composition of its Services at any time.
2. In the event of any changes to the Services or the associated offering, Whale will notify the Customer within a reasonable timeframe prior to the implementation of such changes.
3. Notification of changes will be provided via email to the email address associated with the Customer’s account.

Use of the Services

1. The Customer acknowledges and agrees to inform its Users that the Services are to be used solely for internal business purposes and in full compliance with all applicable laws and regulations.
2. The Services must not be used in any manner other than as explicitly permitted under these Terms of Service.
3. The Customer agrees not to, and ensures that its Users do not, engage in any of the following actions:
   • Request the login credentials of other Users;
   • Access, attempt to access, or hack into the Accounts of other Users;
   • Sell, resell, license, sublicense, rent, lease, or distribute the Services to any third party;
   • Copy, modify, adapt, alter, translate, or create derivative works based on the Services, except for reports, overviews, or outputs created solely for the Customer’s internal business purposes;
   • Utilize computer technologies that may damage, interfere with, overload, or expropriate the Services, including but not limited to viruses, Trojan horses, worms, time bombs, or cancelbots;
   • Engage in activities that burden or disrupt the infrastructure of the Services or interfere with its proper functioning;
   • Access the Services without authorization, including attempting to probe, scan, or test the vulnerability of the Services or to breach any security or authentication measures;
   • Reverse engineer, disassemble, or decompile the Services, nor permit others to do so;
   • Remove or alter any copyright or proprietary notices associated with the Services;
   • Send unsolicited or commercial messages, including but not limited to junk mail, spam, or chain letters, through the Services;
   • Use the Services for transmitting or storing illegal, defamatory, obscene, misleading, offensive, invasive, abusive, threatening, or harmful data, or for any purpose that infringes on intellectual property rights or violates applicable laws.
4. The Customer agrees to indemnify and hold Whale harmless from:
   • (i) Any direct or indirect damages caused to Whale or its Services due to actions or omissions by the Customer or its Users; and
   • (ii) All claims of any nature arising within the framework of the Services, resulting from negligence, fault, or breach of these Terms of Service by the Customer or its Users.

Public Share Feature

1. Responsibility for Published Content:
   • You are solely responsible for any content you choose to publish using the Public Share feature. Whale assumes no liability for any content published through this feature.
2. Prohibited Content:
   • You are strictly prohibited from publishing any content that is harmful, illegal, abusive, or otherwise violates applicable laws or regulations.
   • You may not share content that infringes upon the intellectual property rights of any individual or entity.
3. Content Monitoring and Removal:
   • Whale reserves the right to review and remove any content shared through the Public Share feature that it deems to be in violation of these terms or any applicable laws, at its sole discretion and without prior notice.
4. Indemnification:
   • By using the Public Share feature, you agree to indemnify and hold Whale harmless from any claims, damages, or liabilities arising from the content you publish, including but not limited to claims of copyright infringement or harm caused by the published content.

Suspension

1. Whale reserves the right to suspend one or more Customer or User Accounts in the following circumstances:
   • Late payment by the Customer, as outlined in Article 17.2;
   • If the use of the Services by the Customer or its Users poses a security risk to Whale, its Services, other Customers, Users, or any third party;
   • If the Customer or its Users fail to comply with any provision of these Terms of Service.
2. Suspension of the Services or Accounts does not entitle the Customer or its Users to any form of compensation.

Helpdesk

1. Customers seeking assistance or having inquiries about the Services can contact Whale’s helpdesk.
2. The helpdesk is available through email and chat at [email protected].

Integrations

1. Customers may create integrations using the open APIs provided by Whale, subject to compliance with these Terms of Service.
2. Whale does not guarantee the compatibility of its Services with the integrations created by the Customer.
3. Whale is not liable for any direct or indirect damages arising from the use of Customer-created integrations with the Services.

Accessibility

1. Whale is committed to ensuring digital accessibility for people with disabilities and strives to continuously improve the user experience for all users.
2. Whale adheres to the Web Content Accessibility Guidelines (WCAG), which define requirements for improving accessibility. These guidelines include three levels of conformance: Level A, Level AA, and Level AAA.
3. Whale’s Services are partially conformant with WCAG 2.1 Level AA. Partial conformance means that some parts of the content may not fully comply with the accessibility standards.

Feedback

1. Whale welcomes feedback regarding the accessibility of its website, platform, application, or extensions. Customers or Users encountering accessibility barriers are encouraged to contact Whale using the following details:
   • Email: [email protected]
   • Postal Address: Foreestelaan 1, 9000 Ghent, Belgium
2. Whale endeavors to respond to all feedback within ten (10) business days.

Pricing

1. The Whale solution is provided through a paid subscription. After registering for an account, the End User may select and activate the desired subscription model.
2. Whale’s offer clearly defines which features are included in each subscription model (e.g., a specific number of End Users). Certain features may only be available as separately priced add-ons.
3. If the number of Users increases during the term of the agreement, Whale reserves the right to adjust its pricing on a pro-rata basis, at its sole discretion, to reflect the increased number of Users.
4. The number of End User Accounts cannot be reduced during the subscription term unless explicitly permitted by Whale.
5. All prices are expressed in Euros or US Dollars and are exclusive of VAT and any insurance or administrative costs unless expressly agreed otherwise.
6. Whale reserves the right to adjust its pricing in response to changes in wage costs, social security contributions, government levies, insurance premiums, material costs, infrastructure costs, exchange rates, or other factors. In the event of a price increase, Whale will notify existing Customers via email at least one (1) month prior to the new pricing taking effect.

Retired Payment Plans

1. Retired payment plans refer to subscription models that Whale has phased out.
2. Customers on retired plans are being transitioned to Whale’s current subscription offerings.
3. If a payment for a retired plan fails or the Customer cancels the plan prior to the transition, the account cannot be reinstated under the retired plan. Instead, the account may be reactivated under one of Whale’s current subscription plans.
4. Customers who make changes to their plan type (e.g., switching between monthly and annual plans) while on a retired plan must also transition to a current plan, as retired models are no longer available.

Freem Offering

1. Whale provides a free version of its SaaS products with limited features and functionality, free of charge to Users.
2. Whale reserves the right to modify or discontinue the free offering at its sole discretion, with or without notice.
3. Users may choose to upgrade to a paid subscription plan for additional features and functionality beyond those available in the free offering.
4. Whale may also offer separately priced features or add-ons that Users can purchase in addition to their free plan.
5. By using the free offering, Users consent to the collection, storage, and processing of their data as outlined in Whale’s Privacy Policy.

Payment

1. Whale reserves the right to request full payment of annual or multi-year subscription fees from the Customer before commencing the Services for the applicable term.
2. If the Customer fails to make the requested payment on time, Whale may suspend the Services and charge late payment interest of one percent (1%) per month. Each partially completed month will count as a full month.
3. Additionally, Whale reserves the right to cancel the Services and charge a fixed compensation fee of €250, exclusive of VAT, without prejudice to its right to claim higher compensation.
4. Customers must pay all invoices in full via electronic or bank transfer within the payment terms specified on the invoice. Disputes regarding invoices must be submitted by email within seven (7) days of the invoice date and must include:
   • (i) The invoice date;
   • (ii) The invoice number; and
   • (iii) A detailed explanation of the dispute.
5. Disputing an invoice does not discharge the Customer from its obligation to pay. Partial payments are accepted on a conditional basis and applied first to collection costs, then damages, interest, and finally the principal sum, with preference given to the oldest outstanding principal amount.

Electronic Billing

1. By entering into an agreement with Whale, the Customer expressly agrees to the use of electronic billing by Whale.
2. All invoices, billing communications, and related financial documentation will be delivered electronically to the email address provided by the Customer during account registration or agreement setup.
3. The Customer acknowledges that electronic billing constitutes full and sufficient delivery of invoices and related communications, and agrees to review such communications promptly upon receipt.

Consequences of Late or Non-Payment

1. Any invoice that remains fully or partially unpaid by the Customer on the due date shall automatically incur late payment interest of one percent (1%) per month. A partially completed month shall count as a full month.
2. In addition to late payment interest, a lump-sum fee of €250, exclusive of VAT, shall be charged as damages. This is without prejudice to Whale’s right to claim higher compensation if substantiated.
3. Whale reserves the right to suspend or cancel the performance of Services for unpaid invoices. In such cases, all other outstanding invoices, even those not yet due, shall become immediately payable in full.
4. All permitted payment conditions previously agreed upon between Whale and the Customer shall cease to apply in the event of late or non-payment.
5. The above provisions also apply in cases of imminent bankruptcy, judicial or amicable dissolution, suspension of payments, or any other indication of the Customer’s insolvency.

Term and Termination of the Agreement

Term

1. Unless explicitly agreed otherwise, the agreement between Whale and the Customer shall remain in effect for an indefinite duration.
2. The agreement shall automatically renew for one (1) month, one (1) year, or three (3) years, depending on the subscription selected, unless terminated by either the Customer or Whale. Notice of termination must be provided no later than twenty-four (24) hours before the end of the current term.
3. Whale reserves the right to invoice the Customer for the renewed term if no timely termination notice is provided.

Termination Process

4. Termination notices must be submitted via email and must specify the start and end of the notice period. Alternatively, termination can be executed through the billing section of the Whale Workspace.

Termination Due to Material Breach or Exceptional Circumstances

5. Either party is entitled to terminate the agreement immediately and without legal intervention under the following conditions:

   • If the other party materially breaches any provision of the agreement and fails to remedy the breach within twenty (20) days of receiving a written request to do so. The non-defaulting party reserves the right to claim additional compensation for damages resulting from the breach.
   • If exceptional circumstances arise that make it impossible to continue professional cooperation between Whale and the Customer.

6. Exceptional circumstances include, but are not limited to:

   • The Customer ceasing payments, declaring bankruptcy, being declared bankrupt, entering liquidation or similar proceedings, or being liquidated.
   • Any situation that impairs the Customer’s ability to fulfill its contractual obligations or makes it unreasonable to expect the Customer to do so.
   • Prolonged force majeure or hardship lasting for more than two (2) consecutive months, as described in the Force Majeure/Hardship clause.

Consequences of Termination of the Agreement

1. Upon termination of the agreement, the following actions shall take place:

   • Whale will deactivate the Customer’s Account within fourteen (14) calendar days of the termination date.
   • The Customer will have a period of fourteen (14) calendar days to export its data and the data of its Users using the available export tools provided by Whale.
   • Each party shall cease using and return or destroy any Confidential Information and proprietary materials belonging to the other party.

2. Articles 21 and 23 of these Terms of Service shall survive termination and remain in full force and effect.

3. Termination, for any reason, shall not prejudice any rights or obligations that have been accrued by either party prior to termination.

Liability

1. Whale’s liability is strictly limited to the lower of the following amounts:

   • (i) The invoice value of the Services performed by Whale during the year in which the liability arose; or
   • (ii) The amount covered by Whale’s applicable insurance policies.

2. Whale shall not, under any circumstances, be liable for indirect or consequential damages, including but not limited to loss of income, third-party claims, or damages resulting from force majeure or hardship, as outlined in the Force Majeure/Hardship clause.

3. Whale shall not be held liable for:

   • Damages arising from the use of the Services for purposes other than those intended by Whale.
   • Damages resulting from the Customer’s non-compliance with any advice, guidelines, or terms provided by Whale.
   • Loss or incorrect use of User input or data unless caused by Whale’s willful misconduct.
   • Additional damages caused by the Customer or its Users continuing to use the Services after identifying a defect.

4. The Services are provided on an "as-is" basis to the fullest extent permitted by law. Whale does not guarantee:

   • That the Services will be free from errors, bugs, or issues, nor that these will be resolved within a specific timeframe.
   • That the Services will remain constantly available or free from viruses or other harmful components.
   • Full functionality of the Services in the absence of a stable internet connection or when used with non-standard or outdated systems, browsers, plugins, or other software/hardware.

5. If the Customer provides Whale with login credentials or other confidential information related to third-party services, this is done at the Customer’s own discretion. Whale will not be held liable for the receipt or use of such information.

6. Liability under this clause may only be invoked directly by the Customer and not by any third parties, including Users.

7. The Customer agrees to indemnify and hold Whale and its Users harmless from all claims arising from the negligence, fault, or carelessness of the Customer or its Users.

Force Majeure/Hardship

1. Whale shall not be held liable for any failure to perform its obligations if such failure results from force majeure or hardship.

2. Force majeure or hardship refers to unforeseeable and unavoidable circumstances that render the execution of the agreement impossible or disproportionately burdensome, including but not limited to:

   • Natural disasters, fires, or severe weather conditions.
   • War, terrorism, or political unrest.
   • Strikes, labor shortages, or organizational disruptions.
   • Cybersecurity breaches, such as hacking, that were not reasonably foreseeable.
   • Legal or regulatory changes that significantly impact the agreement.
   • Delays caused by third parties or bankruptcy of third parties essential to the Services.

3. In the event of force majeure or hardship, Whale may suspend or request revision of the agreement through simple electronic notification to the Customer. Whale shall not be liable for any resulting damages.

4. If force majeure or hardship persists for more than two (2) months, either party may terminate the agreement without further liability.

Intellectual Rights

1. Whale retains sole ownership of all copyrights and intellectual property rights associated with the Services, including software, documents, advice, reports, slides, drawings, and images.

2. The provision of Accounts grants the Customer a limited, non-transferable right to use the Services. This does not constitute:

   • A transfer of ownership of the Services.
   • A right to use Whale’s trade names, brand names, or trademarks.
   • A right to request access to Whale’s source code or other proprietary software.

3. The Customer agrees not to challenge the validity of Whale’s intellectual property rights or engage in activities that could harm these rights.

4. The Customer shall promptly notify Whale of any suspected or actual infringement of Whale’s intellectual property rights.

5. The Customer acknowledges and consents to Whale’s right to use, publish, or share the Customer’s trademarks, business names, and logos for reference and marketing purposes unless expressly requested otherwise.

Privacy

Whale as Controller

1. Whale processes personal data of potential and existing Customers in accordance with its Privacy Policy, which is available on its website.

Whale as Processor

2. For Customer and User data processed through the Services, Whale acts as a data processor, while the Customer acts as the data controller.
3. The relationship is governed by the Data Processing Agreement (DPA), which the Customer accepts by ordering or using the Services.
4. Whale may collect metadata solely for the purpose of optimizing the Services, without privacy-related consequences for the Customer or Users.

Applicable Law and Jurisdiction

1. These Terms of Service are governed by Belgian law.
2. Any disputes arising from or related to these Terms shall fall under the exclusive jurisdiction of the courts of the district where Whale has its registered office.