Terms and Conditions Hooray

In these Terms and Conditions assign the following meanings to the terms that are written below with a capital letter:

Additional Application: any application that Hooray offers in addition to the standard subscriptions for the Service;

Agreement: the agreement concluded between Hooray and the User use of the Platform, Additional Applications or for the delivery of Products;

AI Application: any (additional) feature or functionality (whether or not in a specific Additional Application), based on or using (generative) artificial intelligence, machine learning or similar technologies (“AI”) offered by Hooray, with or without the assistance of suppliers, to the Customer;

Application Administrator: the Customer and/or any User appointed by the Customer who is responsible for managing the Platform via the management environment (e.g. ‘superusers’);

Consultancy: services provided by Hooray, such as consultancy, advice, training, project management and related services;

Customer: the natural or legal person who takes out a subscription to the Service or takes out Products from Hooray;

Data Processing Agreement: the processing agreement between Hooray and the Customer, as amended from time to time. The latest version of the Data Processing Agreement can be found on the Website;

Hooray: the private limited liability company incorporated under Dutch law Hooray B.V., registered in the Dutch trade register (Handelsregister) under number: 71997288;

Input: the data and other input that a User provides to an AI Application;

Output: the output generated by an AI Application based on Input;

Parties: Hooray and the Customer jointly, with each individually referred to as a ‘Party’;

Platform: the Hooray software programme, which is offered as a service via the internet as Software as a Service (SaaS), consisting of the Customer’s standard subscription and any Additional Applications chosen by the Customer;

Privacy Statement: the privacy statement of Hooray as amended from time to time. The latest version of the Privacy Statement can be found on the Website;

Products: the products, services, features and/or projects provided by Hooray to the Customer and the related activities, including Consultancy;

Service: access to, and the right to use, the Platform in accordance with the Agreement (including these Terms and Conditions);

Switch: has the meaning given to it in Article 7(5);

Switch Notice: has the meaning given to it in Article 7(5);

Terms and Conditions: these general terms and conditions of Hooray;

Third-Party Products: all third-party Products and software used by the User, as well as the facilities resulting from or required for this;

User: Customer and/or the natural persons who actually use the Service;

Website: https://hoorayhr.io

1. These Terms and Conditions apply to all Services and Products and all legal relationships arising from or related to them between the Parties. By creating a user account, installing or purchasing an application provided by Hooray, or purchasing a Service or Product by a User, the Customer agrees to the Terms and Conditions, the Data Processing Agreement and the Privacy Statement. 
2. Deviations from these Terms and Conditions can only be agreed in writing with an authorised representative of Hooray. 
3. The applicability of terms and conditions used by the Customer is expressly rejected.

1. Any agreement between Hooray and the Customer is only concluded by creating a user account for the Customer or installing one of the Hooray applications, as well as by agreeing to our Terms and Conditions, Privacy Statement and Data Processing Agreement. 
2. The Customer declares and guarantees to Hooray that all actions referred to in the previous paragraph have been performed by a representative authorised to do so on behalf of the Customer. In the case of requests made by an Application Manager, Hooray may assume that the Customer has authorised that Application Manager to make such a request and to agree with Hooray on the associated change/extension to the Agreement, Service, or Products.
3. The Customer cannot derive any rights from the content of Hooray’s Website, brochures, printed matter and the like, and such information is not binding on Hooray, unless the Agreement expressly refers to the content thereof. 
4. Verbal communications, commitments or agreements are only valid if they have been confirmed in writing (including digitally) by the relevant Party or Parties.
5. The Customer guarantees the accuracy and completeness of the information provided to Hooray by or on behalf of the Customer.

1. By creating a user account for a User, the Customer obtains a non-exclusive, worldwide, non-transferable and non-sublicensable right to use the Platform.
2. Hooray may assign access or identification codes to the Customer for the use of the Platform or other Products.
3. Hooray may change assigned access or identification codes at any time.
4. The Customer shall treat the access and identification codes as strictly confidential, take appropriate care measures and share them only with authorised employees. 
5. Hooray is not liable for damage or costs resulting from the use or misuse of access or identification codes, unless this misuse is the direct result of attributable acts or omissions on the part of Hooray.
6. In order to prevent loss and unlawful processing of data, Hooray shall in any case take the technical and organisational measures as described from time to time on https://www.hoorayhr.io/security/. By entering into the Agreement, the Customer confirms that these measures are adequate. The Privacy Statement and the Data Processing Agreement may contain additional provisions regarding technical and organisational measures. 
7. Hooray has the right at all times to:
   1. make changes and upgrades to the Platform or the Service, including expanding, changing or deleting certain functionalities, subscription types and Additional Applications; and 
   2. change the location from which the Platform is hosted or Services are provided,all this insofar as Hooray deems it reasonably necessary and does not materially affect the functionality of the Platform. Hooray has no obligation to ensure that the Platform is or remains available via certain operating systems and/or hardware.
8. Hooray has the right to temporarily take the Platform out of service for the purpose of performing maintenance, making changes or upgrades, or in the event of cyber attacks and threats (in the broadest sense of the word), without the Customer being entitled to any compensation. Hooray will endeavour to announce maintenance in advance as much as possible.
9. Feedback and metadata from the Customer and Users may be freely used by Hooray for development and improvement, provided that no personal data is included.
10. Hooray may offer experimental features as beta products. These are provided “as is”, without warranty, and their use is entirely at the Customer’s risk. The beta products and services are experimental and do not imply any obligation on the part of Hooray to further develop, produce, support, repair or offer for sale those beta products and services. Under no circumstances shall Hooray or its suppliers be liable for any damage resulting from the use or inability to use such beta products and related services.
11. The Customer may not reverse assemble, reverse compile, decompile, translate or otherwise attempt to discover the source code or underlying components of models, algorithms and systems of the Platform and associated applications.
12. Hooray does not claim ownership of Output generated by the use of the AI Application. The Customer only obtains a limited, non-exclusive, non-transferable right to use the Output internally.
13. To the extent permitted by law, the Customer grants Hooray a non-exclusive, worldwide, royalty-free licence to the Input entered by the Customer to deliver, maintain, improve and secure the AI Application. This licence also includes the right to use anonymised and aggregated data for analysis and improvement purposes of Hooray’s services and products.
14. Hooray reserves the right, without prior consent from the Customer, to modify, interrupt or terminate the AI Application in whole or in part if, in Hooray’s opinion, this is necessary to comply with applicable laws and regulations, safety standards, technical limitations or commercial considerations.
15. The Customer must comply with the agreed usage restrictions, for example with regard to:
    1. permitted Users (e.g. maximum number, whether simultaneous or not, or capacity);
    2. permitted forms and purposes of use; and
    3. other quantitative or qualitative restrictions.
16. The Customer is aware that violation of an agreed usage restriction constitutes both an attributable failure to comply with the Agreement and an infringement of the intellectual property rights relating to the Platform.
17. Hooray may at any time take technical measures to protect the Platform and the associated applications against unlawful use and/or use in a manner or for purposes other than those agreed between the Parties. The Customer may not circumvent these technical measures.
18. The Customer may only use the Platform and the associated applications within and for the benefit of its own company or organisation and exclusively for the intended use. The right of use is only granted for use by the Customer’s own employees. Own employees also includes employees of companies or institutions affiliated with the Customer and hired freelancers or consultants (but only insofar as this concerns services to the Customer). The Customer may not use the Platform and the associated applications for the processing of data for the benefit of third parties, such as “timesharing”, “application service provision”, “software as a service” and “outsourcing”.
19. Hooray will make reasonable effort to carefully carry out the agreed Consultancy. Consultancy is always based on a efforts obligation.
20. The duration of the Consultancy depends on factors such as:
    1. Hooray’s efforts;
    2. quality of data and information provided by the Customer; and
    3. the cooperation of the Customer and third parties,and Hooray does not commit to a duration in advance.
21. Consultancy is only provided on Hooray’s usual working days and times.
22. The Customer uses advice provided by Hooray in the context of Consultancy at its own expense and risk.
23. The Customer’s payment obligations in the event of cancellation of Consultancy are set out below.

1. The Customer is solely responsible for:
   1. the use of the User’s user account and all actions performed via the Platform with the user account;
   2. checking for errors in the data entered via the Platform (including Input), and the correctness and accuracy of information originating from the Platform (including Output), the use and application of information originating from the Platform (including Output), including assessing that information for correctness, completeness, accuracy and suitability, and – insofar as Output is concerned – (providing) human intervention; 
   3. installing, configuring, parameterising and tuning the necessary (auxiliary) computer software on its own equipment and, if necessary, adapting the equipment used for this purpose, other (auxiliary) computer software and the user environment, and achieving the interoperability desired by the Customer;
   4. maintaining a connection to the energy network and other connections necessary for access to and use of the Platform; 
   5. the management, including control of the settings, use of the Platform and the manner in which the results of the Platform (including AI Applications) are used;
   6. instructing of and the use by Users, regardless of whether these Users are in a position of authority in relation to the Customer; and
   7. the proper functioning of any Third-Party Products and/or links to these Third-Party Products, insofar as data is exchanged with the Platform.
2. The Customer and Users may not perform any actions that are contrary to the Agreement, these General Terms and Conditions, any legal provisions, public order or morality. The Customer and Users must refrain from: 
   1. using the Platform for illegal activities or storing illegal or unlawful data via the Platform; 
   2. actions or omissions that may cause disruptions to the Platform, (computer) networks or infrastructures (of other users) or cause nuisance, limited use or unforeseen use (for other users) in relation thereto;
   3. posting or distributing viruses, worms, malware, junk mail, spam, chain letters, phishing emails or destructive codes via the Platform; 
   4. the publication or distribution of racist or discriminatory material and/or (child) pornography, such as by posting or distributing it via the Platform’s infrastructure;
   5. impersonating another party, or Hooray, whether or not through the publication of websites; and
   6. hacking, infringing upon, or testing or investigating the security of the Website, the Platform or related matters. 
3. The Customer and Users may not infringe the intellectual property rights of Hooray or third parties. The Customer and Users will not use or publish any information, images, brand or trade names or other materials from the Website without the prior written consent of Hooray.
4. The Customer understands, accepts and agrees that:
   1. Output may be incorrect, incomplete and/or inaccurate; and
   2. partly due to the nature of the AI Application(s) and artificial intelligence in general, Output may not be unique and third parties may obtain similar output.
5. The Customer is obliged to ensure, and guarantees to Hooray, that the Customer and Users:
   1. not mislead anyone by suggesting that Output is generated by humans;
   2. do not use the AI Application to generate Input or Output that:
      1. is unlawful or harmful;
      2. is contrary to any law and/or regulation, public order or morality;
      3. is in violation of the Agreement, and/or 
      4. infringes any rights of any third party;
   3. not use the AI Application to reverse assemble, reverse compile, decompile, translate or otherwise attempt to discover the source code or underlying components of models, algorithms and systems of the AI Application (except to the extent that such restrictions are contrary to applicable law);
   4. be entitled to use (or have used) the Input (by Users) for the AI Application(s); and 
   5. be entitled to use the Output (or have it used) (by Users).

1. Hooray offers each Customer a one-time opportunity to use the Platform free of charge during the first 14 days after the Agreement has been concluded. This does not apply if a Customer has already entered into an Agreement with Hooray at an earlier date.
2. In order to continue using the Platform after the period referred to in the previous paragraph, the Customer must agree to the rates specified by Hooray on the Platform. The Customer grants this agreement by providing valid payment details and authorising the collection of the monthly fee by SEPA direct debit or credit card.
3. All prices quoted by Hooray are exclusive of VAT, unless otherwise indicated on the monthly invoices sent by Hooray before the direct debit takes place.
4. Fees owed by the Customer as a result of continued use as referred to in paragraph 2 will be collected automatically. These will be specified on the next invoice. 
5. Monthly subscriptions will be charged to the Customer by Hooray in arrears and subscriptions with a term of more than one (1) month in advance.
6. Hooray is entitled to adjust its prices. In that case, Hooray will notify the Customer of the changed prices in writing at least one month in advance by means of an electronic message, a message to Application Administrators or a notice on the Platform. 
7. If the Customer fails to pay on time, or the direct debit is refused, Hooray will attempt to collect the amount due again via SEPA direct debit or credit card, or by means of a written reminder. If payment is still not made, Hooray is entitled to charge the statutory commercial interest and extrajudicial collection costs. In addition, for each late payment, the Customer will owe an amount of EUR 40 per invoice by operation of law without notice of default.

1. The User is entitled to terminate the Agreement with Hooray at any time. Termination must be made either in writing (by e-mail) or via the administrator section of the user account.
2. The termination will be processed as at the end of that month. The User is not entitled to a refund for that part of the month that remains following the termination.
3. If the User does not make use of the option of continued use as provided for in Article 5 paragraph 2 after the period as referred to in Article 5 paragraph 2, the Agreement will automatically be terminated by operation of law without further notice.
4. Hooray is entitled to suspend the Agreement with the User with immediate effect or to terminate it in whole or part without judicial intervention in the following cases:a) If after entering into the Agreement Hooray learns of circumstances that give Hooray a well-founded reason for fearing that the User will not fulfil his obligations;
   b) in the event of the User’s winding-up, bankruptcy or payment moratorium;
   c) if the User is otherwise in default and fails to fulfil his obligations arising from the Agreement, Data Processing Agreement and/or these Terms and Conditions.
5. The provisions in the previous paragraph do not affect the User’s obligation to reimburse Hooray for the damage suffered by the latter and are without prejudice to the other rights that Hooray is entitled to.

1. The Customer accepts the Platform in the condition in which it is made available. Hooray makes no warranties or representations that the Platform will be available at all times on any operating system, browser or hardware device, that it will be free of malfunctions and/or defects, or that any defects will be repaired.
2. Hooray shall in no event be liable for: 
   1.  indirect damage such as consequential damage, lost turnover or profit, lost savings, lost use, lost opportunities, damage due to (partial) business interruption and damage to goodwill; 
   2. damage resulting from errors in the Platform’s systems, insofar as the User could have prevented this damage by checking the data or information entered into the system, whether or not by a third-party expert; 
   3. damage caused by the Customer’s failure to make an external backup/copy of the data entered on the Platform for its own administration; 
   4. damage to the Customer and/or third parties as a result of changes and/or adjustments to the Platform by or on behalf of the Customer or the Customer’s failure to comply with the provisions of Articles 4 or 5; 
   5. damage suffered by the Customer as a result of misuse of the administrator account. 
3. Unless there is intent or deliberate recklessness on the part of Hooray, Hooray’s liability under and in connection with the Agreement is limited to direct damage and to the amount equal to the fee paid by the Customer to Hooray for the relevant contract period in which the damage-causing event occurs. Insofar as Hooray has insured itself against this damage, its liability shall be limited to the amount paid out by the insurer in the relevant case (if and insofar as this is lower).
4. The Customer shall indemnify Hooray against claims for compensation from third parties in connection with any breach of the provisions of Article 5, as well as all damage and costs incurred by Hooray as a result of a breach of Article 5.

1. Hooray is not liable for the consequences of force majeure, which in any case includes government decisions and measures, international conflicts, violent or armed actions, labour irregularities, lockouts and boycotts, disruptions in companies or institutions whose services are used, unforeseeable stagnation at suppliers or other third parties or with regard to Third-Party Products on which Hooray depends, and fire.
2. If the force majeure situation has lasted for thirty days, both Parties have the right to terminate the Agreement. In the event of force majeure, the Customer is not entitled to compensation.

1. The Customer is the owner of its own information and (personal) data (hereinafter: data) and is therefore responsible for the protection of data that is sent, processed or stored via the Platform. The Parties are each obliged to keep the data entered via the Platform confidential and not to share it with unauthorised third parties without the prior express written consent of the other party, unless a party is legally obliged to do so.
2. Under the applicable laws and regulations concerning the processing of personal data (such as the General Data Protection Regulation, known as the GDPR), the Customer has obligations towards third parties, including the obligation to provide information, access, as well as to restrict, rectify and delete personal data of data subjects, or to transfer this personal data to another controller. 
3. The parties agree that Hooray can be regarded as a “processor” within the meaning of the GDPR with regard to the processing of personal data. The Customer is considered a “controller” within the meaning of the GDPR, as the Customer determines the purpose and means and therefore bears responsibility for the processing of personal data. The agreements between the Parties regarding further data processing are laid down in a separate Data Processing Agreement. 
4. The Customer guarantees Hooray that the processing of personal data is lawful and that no infringement of the rights of third parties occurs. The Customer indemnifies Hooray against any legal action by third parties, on whatever grounds, if that action relates to the processing of personal data, as well as against any fines imposed on Hooray by the Data Protection Authority or other competent supervisory authorities. 

1. Hooray reserves the right to amend the General Terms and Conditions at any time. In that case, Hooray will inform the Customer by sending the amended General Terms and Conditions electronically (e.g. by e-mail, by electronic message to the Application Manager or by message on the Platform).
2. All legal relationships between the Parties are governed exclusively by Dutch law.
3. All disputes that may arise between the Parties as a result of the Agreement or further agreements and other acts and legal relationships in connection with the Agreement will be settled by the competent court of the Midden-Nederland District Court.
4. Hooray is entitled, after prior notification to the Customer and without the latter’s consent, to transfer all rights and obligations under the Agreement to third parties. If the transfer requires the Customer’s consent or cooperation, this is granted in advance and the Customer undertakes to provide all further necessary cooperation. The Customer may only transfer its rights and obligations under the Agreement with the prior written consent of Hooray, which consent shall not be withheld on unreasonable grounds, provided that the transfer does not place Hooray in a more disadvantageous position.
5. If any provision of the Agreement or the General Terms and Conditions cannot be invoked or is invalid or void, the remaining provisions or the remainder shall remain in full force and effect. The parties hereby agree to replace the invalid or void provision in good consultation with a provision that corresponds as closely as possible to the invalid or void provision in terms of content and meaning.