Cake for Business – Terms & Conditions
These terms and conditions of sales (the “Terms and Conditions”) are entered into between Cake NV, a public limited liability company (“naamloze vennootschap”) duly organized under the laws of Belgium, having its registered office at 3500 Hasselt (Belgium), Hendrik Van Veldekesingel 150/23 and registered in the legal entities register of Antwerp, Hasselt division under the business registration number 0723.581.891 (“Cake”) and the partner, which is a legal entity that subscribes to Cake’s Products and Services under the Terms and Conditions, (the “Partner”), hereunder collectively referred to as the Parties and individually as a Party.
The Partner enters into a contract with Cake (“Contract”) by registering to, purchasing, receiving, or otherwise using Cake’s Products and/or Services and accepting the Terms and Conditions either manually or electronically, both manners having full legal force. By accepting these Terms and Conditions, and/or by accessing or using Cake’s Products and/or Services, the Partner shall represent and acknowledge to have read, understood, and agreed to be bound by these Terms and Conditions. The person entering into a Contract with Cake on behalf of a company or another (legal) entity shall warrant having the authority to bind such entity to the Contract.
The provisions of sections 4 (“Partner Portal”), 5 (“Services”), 7 (“Personal Data”) and 9 (“Modifications”) shall not apply where the Partner purchases, receives or otherwise uses the Products through means of communication other than the Partner Portal. All the other provisions of these Terms and Conditions shall apply independently of the means, interface or platform through which the Products are purchased, received, or otherwise used, unless a provision (i) explicitly states that it only applies where Products are purchased, received or otherwise used via the Partner Portal, or (ii) is subject to an explicit derogation that applies where Products are not purchased, received or otherwise used through the Partner Portal.
All terms defined below beginning with a capital letter are defined as follows:
User: means a natural person authorized by Cake to receive the (B2C) consumer services of Cake.
Partner Portal: means the software solution of Cake in SaaS mode made available to the Partner (including updates, upgrades, and corrections delivered by Cake).
Personal Data: means any information which directly or indirectly identifies an individual, including by reference to an identifier, such as, without limitation, the name, address, email address, phone number, identification number, or an identifier.
Products: refers to the different products made available by Cake to the Partner in the Partner Portal or through any other means of communication.
Services: refers to the access of the Partner Portal and maintenance and support provided by Cake to the Partner in relation to the Partner Portal.
Manager: means a natural person authorized by the Partner to use the Partner Portal and/or the Products on behalf of the Partner.
The purpose of these Terms and Conditions is to define the conditions under which the Partner is authorized to use the Partner Portal and the Products and Services. Any order by the Partner is governed by these Terms and Conditions. These Terms and Conditions supersede any terms and conditions of purchase of the Partner and any prior agreements between the Parties on the provision of the same Products and Services, save where an exception to these Terms and Conditions has been explicitly agreed between the Parties. Any specific clauses in the Terms and Conditions supersede its general provisions on the same subject.
3. DURATION – TERMINATION
Unless otherwise agreed between the Parties, the Contract comes into force at the date of acceptance of these Terms and Conditions by the Partner, for an indefinite period of time.
Each Party can terminate the Contract at any time upon a notice period of 30 days.
The Contract can be terminated or suspended by Cake immediately upon notification if (i) the Partner fails to pay its undisputed, due invoices (it being understood that invoices can only be disputed on substantive, formal grounds), (ii) in the event of apparent insolvency, or (iii) if the Partner commits any other material breach of the terms of the Terms and Conditions and does not remedy this within fifteen (15) days after being given formal notice of default thereof. Any such suspension will not relieve the Partner from its payment obligations under these Terms and Conditions.
The Contract can be terminated or suspended by the Partner if Cake does not remedy its material breach under these Terms and Conditions within fifteen (15) days after being given formal notice of default thereof.
Upon termination of the Contract, for any reason, Cake shall revoke any access to the Partner Portal offered to the Partner and the Partner shall immediately cease any access and use of the Partner Portal and the Products and Services.
Cake has a license from the National Bank of Belgium as a payment institution. The Contract shall be terminated or suspended, immediately after Cake fails to keep its license. Cake shall use reasonable efforts to meet all obligations to hold its license but cannot warrant that this license will be retained.
By way of derogation from the provisions of this section 3, where the Partner purchases, receives or otherwise uses the Products through means of communication other than the Partner Portal, the Contract shall terminate upon the moment of delivery of the specific Products requested by the Partner.
4. PARTNER PORTAL
4.1. Conditions of use
In the Partner Portal, the Partner can subscribe to the various Products of Cake. The corresponding fees for these Products are communicated in the Partner Portal and shall apply to these Products.
For some Products, the Partner pays a monthly subscription fee. Examples of these Products are Market Insights or Customer Insights.
For some Products, it is necessary to buy credits in advance before these Products can be consumed. Examples of these Products are Acquisition & Targeting. In this case, these credits will be held in the credit account of the Partner. All commissions and rewards of the Product that are due by the Partner to Cake shall be deducted from this credit account. The Partner’s use of the credit account is subject to the usage and minimum threshold explanations set out in the Partner Portal.
Upon termination of the subscription to a Product, Cake shall refund the remaining amount of the credit account related to this Product within 30 (thirty) calendar days counting from the receipt of a formal notice of termination of the subscription to that Product, sent via regular mail to Cake’s registered office or via email to their account manager at Cake. Any refund is conditional upon the payment of all outstanding invoices.
4.2. Conditions of access
The Partner may access the Partner Portal 24 hours a day, 7 days a week, subject to maintenance periods.
The Partner Portal can be accessed from (i) any compatible devices of the Partner (computers or tablets) and (ii) using the identifiers provided to the Partner by Cake. The identifiers are intended to restrict access to the Partner Portal by the Partner and the Managers, to protect the integrity and availability of the Partner Portal, as well as the integrity, availability, and confidentiality of any data. The identifiers are personal and confidential. The Partner agrees to take any necessary measures to keep its identifiers confidential and not to disclose them in any form whatsoever.
Cake shall not be held responsible for any damages resulting from any loss or breach of confidentiality with regard to the identifier assigned to the Partner and its Managers.
4.3. Financial conditions
The use of the Products and the Services is subject to the payment of the corresponding fees. These fees are VAT exclusive (as well as any other indirect taxes) and are invoiced by Cake to the Partner.
For Products related to rewarding the Cake Users (e.g. Acquisition & Targeting), payment of the invoices to buy credits is necessary before the Partner can use the Product.
For the monthly subscription fee and the top-up of the credits account, invoices are due within 10 business days as of the invoice date. In the event of non-payment by the due date, any amount due to Cake shall bear an interest of 8% per year from the first business day of delay. In the event of non-payment for the top-up of the credit accounts, Cake has the right but not the obligation to suspend the use of the Product and/or access to the Partner Portal.
Without prejudice to the preceding and without any prejudice to the payment obligation of the Partner(s), any contestation of an invoice must be communicated within a period of ten (10) business days as of the invoice date by a motivated registered letter. After this period, the Partner shall be deemed to have definitively accepted the invoiced amount.
Payment of the fees for the use of the Products and Services is also possible by means of a SEPA mandate, which can be signed via the Partner Portal. Cake may, in its sole discretion, refuse this payment option to anyone without notice at any time.
When providing Cake with bank account information to use SEPA direct debit as a payment method, the Partner: (1) authorises Cake to request payments in euro currency for fees for Products and Services (and if necessary, to credit that bank account to correct erroneous debits or issue a refund); and (2) instructs its bank to withdraw the payments from its bank account. The authorisation to request payments for fees also covers the immediate payment of unpaid invoices.
Authorisation to debit the Partner’s bank account will remain in full force and effect until the Partner withdraws the authorisation by revoking the SEPA mandate.
The Partner agrees that, if its bank account cannot be debited for the full payment amount due on any monthly or other invoice (for example, for insufficient funds), Cake may submit an additional request to debit the bank account. The Partner is responsible for any fees that its bank or another third party may impose for a debit.
By signing a SEPA mandate and thus providing its bank account as a payment method for Products and Services, the Partner represents and warrants that: (1) it is the owner of the bank account or it is authorised to use the bank account for payments of fees for Products and Services, (2) it will have sufficient funds on the bank account to pay said fees at the time of the charge, and (3) it has read, understood and agreed to the terms of the Contract.
4.4. Intellectual Property
The Partner Portal, as well as all its components (such as trademarks, logos, computer programs, graphics, images, texts), are the exclusive property of Cake or have been granted to it. These Terms and Conditions do not imply any assignment of intellectual property rights of any kind on any elements belonging to Cake.
Cake grants the Partner a personal, non-exclusive, non-assignable, non-transferable right to use the Partner Portal for the duration of the Contract. The Partner shall use the Partner Portal and shall authorize access to it by the Managers in accordance with its requirements, any documentation provided, and the present Terms and Conditions.
The Partner may not in any case transfer, delegate, or allow a third party to make use of its right to use the Partner Portal and is strictly prohibited from any other use. In particular, the Partner is not permitted to make any copy, correction, adaptation, modification, translation, arrangement, distribution, decompilation, alteration, and more generally, any alterations to all or part of the Partner Portal. Nor may it permanently or temporarily reproduce all or part of the Partner Portal by any means and in any form.
The Partner will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Products, Partner Portal or any software, documentation or data related to the Partner Portal.
The Partner will not sell or otherwise transfer any information or data related to the Partner Portal to third parties without the prior written consent of Cake.
The Partner shall not make use of the Partner Portal to acquire insights or to target audiences based on information concerning or relating to Users’ racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health, sex life or sexual orientation.
Cake does not accept Partners who are active in specific (sensitive) sectors, such as arms, casinos, tobacco, sex industry, porn, illegal drugs, lotto, or gambling.
Whenever Cake has reasonable grounds to believe that the Partner’s use of a Product from the Partner Portal is not in conformity with the Terms and Conditions, or that there is a risk that the Partner’s use of a Product could give rise to fraud or abuse by Users, or to unintended consequences posing unforeseen reputational, operational, or financial risks to one or both of the Parties, Cake has the right, but not the obligation, to suspend the use of the Product with immediate effect until the situation is remedied, without incurring any liability for the direct or indirect consequences of such suspension.
The Partner shall provide Cake with any information required for the performance of the Services. Cake provides the following Services to the Partner:
(i) Access to and maintenance of the Partner Portal: Cake shall implement from time to time upgrades, updates and new versions of the Partner Portal. Any new versions might include any modifications or deletions of existing features and/or new features or capacities.
(ii) Technical support for the Partner Portal: technical issues and requests can be reported by the online portal chat tool from Monday to Friday from 09.00 to 18.00 Central European Time (CET) (excluding public holidays).
(iii) Partner support services: support is available in Dutch and English from Monday to Friday from 09.00 to 18.00 CET (excluding public holidays).
(iv) Training and configuration Services: at the Partner’s request, Cake may, during the term of the Contract, provide additional services, which shall be invoiced in accordance with the applicable pricing mentioned on the website.
For the purposes of these Terms and Conditions, “Confidential Information” means all confidential and proprietary information of a Party disclosed to the other Party, whether orally or in writing, that is clearly identified in writing or verbally at the time of disclosure as confidential. It includes Cake’s documentation, the data and information related to Partner Portal, whether or not marked as confidential or proprietary.
Each Party agrees not to use or reproduce the Confidential Information of the other Party for purposes other than for the requirements of the Terms and Conditions and not to disclose or transfer Confidential Information of the other Party to any third parties without its prior written consent.
Notwithstanding the foregoing, Confidential Information can be disclosed by the other Party to its employees, officers and consultants as well as to employees, officers and consultants of its subsidiaries or authorised subcontractors solely for the purposes of performance of the Contract, and provided that such individuals are duly informed of the confidential nature of the information and that they are bound by confidentiality undertakings similar to those set forth in this clause.
These confidentiality obligations do not apply to Confidential Information that is: (i) entered into the public domain prior to disclosure or thereafter without being in breach of this clause; (ii) known prior to its disclosure by the disclosing party; (iii) lawfully received from a third party; (iv) developed independently by the recipient Party.
Notwithstanding any provision to the contrary, these confidentiality obligations shall continue to have effect for a period of three (3) years following the expiry or termination of the Contract.
7. PERSONAL DATA
The Parties are joint controllers of data pursuant to Article 26 of Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (the “GDPR”). The present clause sets out the arrangement required by Article 26 of the GDPR.
Considering that the Partner shall not have any form of direct or indirect access to Personal Data of Users collected through the (B2C) consumer application of Cake, Cake shall be solely and fully responsible to implement all existing and applicable legal provisions concerning the protection of Personal Data, including the GDPR and the national implementing legislation, applying to the processing of Personal Data collected through its (B2C) consumer platform.
In particular, Cake shall be solely and fully responsible to carry out the obligations under the GDPR regarding the exercise of the rights of the data subject and the duty to provide the information referred to in Articles 13 and 14 of the GDPR.
Cake shall bear full liability for any breach of applicable legal provisions concerning the protection of Personal Data, including the GDPR and the national implementing legislation, to the extent that the relevant breach relates to the processing of Personal Data jointly controlled by Cake.
Notwithstanding the provisions of clause 9, in the event that a User holds the Partner liable for a breach of his or her rights under applicable legal provisions concerning the protection of Personal Data, including the GDPR and the national implementing legislation, Cake shall fully compensate the Partner for the damages obtained by the User, to the extent that the relevant breach relates to the processing of Personal Data jointly controlled by Cake.
Cake is hereby designated as a contact point for data subjects. If the Partner receives a request or inquiry from a data subject regarding matters covered by Cake’s responsibilities, the Partner shall forward the request to Cake without undue delay.
Cake shall inform its Users of the essence of the present joint controller arrangement.
The Partner shall be solely responsible for the use of the Partner Portal and/or the Products by the Managers.
The liability of each Party shall be limited to direct damages caused to the other Party. Neither Party shall be held liable for any indirect damages or any loss of data, loss of income, loss of profits, loss of opportunity or loss of customers or damage to the image arising from or relating from the Contract regardless of whether such persons were advised of the possibility of such losses or damages or such loss or damages were otherwise foreseeable. Under no circumstances shall Cake be liable for any loss or damage caused by the reliance of the Partner on any information, statements or reports obtained using the Partner Portal and/or the Products, with the exception of any loss or damage caused by Cake’s willful misconduct, its gross negligence or that of its agents. Under that same exception, Cake shall not be liable for any damages of any kind flowing from the Partner’s use of the Products offered via the Partner Portal or via any other means of communication. The use of these Products is at the Partner’s own risk. In particular, with regard to the Partner’s use of Products that enable the Partner to engage in marketing or otherwise to approach Users, the Partner shall bear full and sole liability for any infringement of any applicable advertising laws or regulations, and shall unconditionally and entirely compensate Cake for any liability incurred by Cake as a consequence of such infringements. Cake shall not be liable for any damages caused by the failure of the Partner to provide information, documents or files required to implement the Partner Portal, as well as any data errors provided by any third party or by the Partner.
In any event, Cake’s liability shall not exceed an amount equivalent to the total fees received by Cake during the twelve (12) months preceding the occurrence which caused the damage invoked by the Partner.
In any event, Cake may be exempted from all or part of its liability insofar as the non-performance or improper performance of the Contract is attributable to the unforeseeable and insurmountable act of a third party unconnected with the provision of the Products or the Services under the Terms and Conditions, or to a force majeure event. Events of force majeure include, but are not limited to, social conflicts, the freezing of all means of transport or supply, earthquakes, fires, storms, floods, power outages, wars, attacks, riots, political instabilities, breakdowns of telecommunications.
Cake shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Cake or by third-party providers, or because of other causes beyond Cake’s reasonable control. Cake does not warrant that the Services will be uninterrupted or error-free.
Cake may make changes to these Terms and Conditions. If Cake makes a material change to the Terms and Conditions, it shall give notice to the Partner, prior to the change taking effect, via the email address associated with the Partner’s account on the Partner Portal, or by messaging the Partner through the Partner Portal. The Partner can review the most recent version of the Terms and Conditions at any time on the Partner Portal. The materially revised Terms and Conditions will become effective on the date set forth in Cake’s prior notice, and all other changes will become effective upon posting of the change. If the Partner does not agree with the material changes, the Partner can terminate the Contract with immediate effect and without any termination costs. If the Partner (or any Manager) accesses the Partner Portal or uses the Services after the effective date, that access or use will constitute the Partner’s acceptance of any revised Terms and Conditions.
10. APPLICABLE LAW AND COMPETENT JURISDICTION
These Terms and Conditions are governed by and interpreted in accordance with Belgian law. Any dispute which may arise with regard to the validity, interpretation, performance, termination, as well as consequences of these Terms and Conditions, must be submitted to the Enterprise Court of Antwerp, Hasselt Division.
Where the Partner purchases, receives or otherwise uses the Products via the Partner Portal, the Partner agrees and accepts that Cake is entitled to use the Partner’s name, logo, graphic symbol and/or trademark in the interfaces used by Cake to offer its (B2C) consumer services to its Users. Cake shall not use the Partner’s name, logo, graphic symbol and/or trademark on its website and/or in promotional, advertising, instructional or reference materials, for promotional purposes, without the prior written consent of the Partner.
The Contract between the Parties is entered into intuitu personae. Neither Party shall be entitled to assign, transfer or relinquish in any way its rights and obligations arising from the Contract in favor of a third party without the prior written consent of the other Party which should not be unreasonably withheld.
The fact that one of the Parties did not exercise any of its rights in a timely manner, or did not exercise them at all, shall not be presumed to operate as a waiver of such rights, whether in relation to a past or future act.
If any term or provision of these Terms and Conditions is found by a court of competent jurisdiction to be invalid, illegal, or otherwise unenforceable, the same shall not affect the other terms or provisions hereof, but such term or provision shall be deemed modified to the extent necessary in the court’s opinion to render such term or provision enforceable, and the rights and obligations of the Parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the Parties.
The present Terms and Conditions shall survive the termination of the Contract, whatever the cause of such termination may be, to the extent necessary for the enforcement of the Parties’ rights and obligations.