GENERAL TERMS & CONDITIONS
A real estate partner listening to your needs.
The software is a CRM as described on the WHISE SOFTWARE information page.
WHISE N.V. a company duly registered under the laws of Belgium, with registered office at Leuvensesteenweg 775, 1140 Brussels, Belgium and with company number 0471-483-940,
The entity registered on the WHISE SOFTWARE order page that enters into a license and service agreement with WHISE with respect to WHISE SOFTWARE.
The person(s) to whom the Customer gives a username and password in the WHISE account of the Customer.
The official distributor of WHISE who is the principal point of contact for the Customer.
The General Terms and Conditions governing the use of WHISE Software by the Customer.
Any and all documents referred to in the General Terms.
The services set forth in Article 5.
The General Terms are applicable to all use by Customer of WHISE SOFTWARE and to the Related Services offered by WHISE. The Customer’s terms and/or those of a third party do not apply.
WHISE may from time to time change the General Terms or its Annexes. The Customer has thirty days to protest such changes, after which period the new terms are deemed to have been accepted by the Customer. If the Customer does not accept the new terms, WHISE reserves the right not to extend or renew any licenses and/or Related Services.
The Customer may order licenses and/or Related Services from WHISE. All orders must be placed using the WHISE order page. Only the offers on the WHISE order page will be treated by WHISE as regular and binding offers. For such licenses and/or Related Services, the applicable fees will be those effective as of the time the order is placed.
All prices quoted are net and exclude VAT. Any other offer, as well as all information, drafts, presentations, calculations and/or enclosures issued by WHISE or a WHISE Distributor, are to be taken as information only and in no event are they binding to WHISE.
Upon payment of the applicable fees, WHISE grants to the Customer a non-transferable and non-exclusive license to use WHISE SOFTWARE. According to the license, such use will be exclusively for Customer’s sole and unique benefit and in accordance with the intended use of WHISE SOFTWARE.
WHISE SOFTWARE is separated in a Basic pack, Expert Pack, and additional packs. For each pack there is a separated license.
Customer acknowledges that WHISE SOFTWARE is constantly being improved by WHISE. The Customer will only have access to the latest released version of WHISE SOFTWARE. Each new version or update of WHISE SOFTWARE will replace as modified version the original or previous version thereof, and henceforth be subject to all rights and obligations as mentioned in the General Terms. During the updates, WHISE SOFTWARE may temporarily not be available to the Customer.
Acquired licenses are effective for the period of one year starting on the date indicated on the WHISE order page. The licenses will be automatically renewed each year, unless Customer or WHISE gives a written notice to the other party of its intention not to renew the license at least three months before the ending of a one year term.
The expiring of all the Customer’s licenses for the Basic or Expert Pack automatically terminates the use of Customer’s WHISE SOFTWARE website, webservices, and additional packs.
4. Server space and transfer of data
a. Server space
If the volume of the data stored on the servers of WHISE by Customer exceeds the server capacity which has been paid for by the Customer, the Customer will be required to purchase additional server capacity.
If the Customer terminates his use of WHISE SOFTWARE by not extending his licenses, WHISE will remove the Customer’s data stored on its servers.
The Customer acknowledges that by not extending his licenses or by refusing to pay for additional server capacity, he takes responsibility for any and all loss of data as a result thereof; In case the Customer wishes to avoid data loss by transferring his data to another system, the Customer can ask a copy of his data at least 30 days prior to such transfer.
If the applicable fees for the license are paid, WHISE will deliver a complete set of data in a standard format. WHISE will deliver the complete set of data free of charge once.
WHISE reserves the right to invoice for additional delivery of the complete set of data at the then applicable rates of WHISE.
b. Transfer of data
The transfer to WHISE SOFTWARE of Customer’s data including data stored with the use of other software is not included in the license fees. In case the Customer wants to have such data transferred to WHISE SOFTWARE, Customer must contact his WHISE Distributor to proceed with such transfer. Any assistance from WHISE that may be needed for the execution of such transfer will be invoiced at the then applicable rates of WHISE for such service.
5. Scope and limitation of the Related Services provided by WHISE
WHISE provides the Customer with a software platform that enables the Customer to store data and to perform operations as set forth in the WHISE information page.
The Related Services provided by WHISE are strictly limited to all reasonable measures to ensure the working and availability of WHISE SOFTWARE. WHISE does not screen the text or media content, processed through WHISE SOFTWARE by the Customer.
The Customer is free within the limited scope of its license rights to use and operate WHISE SOFTWARE according to its intended purpose. As a result, the Customer bears the sole and full responsibility for the content that he processes with the use of WHISE SOFTWARE.
6. Customer’s obligations and liability
Customer accepts the complete and unconditional responsibility for any and all operations performed under the accounts of the Users. Customer is responsible for the confidentiality of his accounts, usernames and passwords, for the access to his computer system and for the acts and negligence of any party making use of an account of the Customer. Customer will not allow access to WHISE SOFTWARE to any person that is not a registered User in WHISE SOFTWARE.
In case Customer finds or suspects any misuse of his account information, Customer will immediately change his passwords.
The Customer will comply with (i) all international, national, state and local laws and regulations, and (ii) all internet regulations, policies and procedures.
The Customer agrees to never use WHISE SOFTWARE for illegal purposes or conduct that is otherwise objectionable. The Customer may not process any content that (i) is unlawful, harassing, libelous, abusive, threatening, or harmful of any kind or nature or otherwise objectionable; (ii) he does not have the right to process under any law or under contractual or fiduciary relationships; (iii) infringes any rights of a third party, such as but not limited to patent, trademark, trade secret and copyright rights.
The Customer will not use nor display any means, software or routines that might harm other parties or the good functioning of WHISE SOFTWARE, or disproportionately burden the WHISE SOFTWARE system.
The Customer accepts the full responsibility for his accounts and agrees to defend, indemnify and hold harmless WHISE, its shareholders, directors, officers, employees, agents, distributors, attorneys, parent companies, subsidiaries and affiliates, harmless from and against any and all claims, liabilities, judgments, penalties, taxes, costs and expenses (inc. reasonable attorney fees and costs) arising out of or related to Customer’s breach of the General Terms or the Annexes.
7. Processing of personal data in connection with the use of WHISE Software
For the purposes of this provision:
(a) 'controller' means the natural or legal person, public authority, department or other body which, alone or in conjunction with others, determines the purposes and means of the processing;
(b) "subcontractor" means the natural or legal person, public authority, service or other body that processes personal data on behalf of the controller;
(c) "personal data", "special categories of data", "processing / processing", "data subject" and "supervisory authority" have the same meaning as in the Law of 8 December 1992 on the protection of privacy with regard to the processing of personal data (hereinafter referred to as the "law on the protection of privacy") and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46 / EC (hereinafter referred to as the "General Data Protection Regulation") ").
The Customer may process personal data of its customers, users or prospects, through the use of WHISE Software.
As controller, the Customer undertakes to comply with all applicable regulations on the protection of personal data and privacy, including the law on the protection of privacy and regulation Data Protection Policy as soon as it comes into force on May 25, 2018. The Customer undertakes to pay particular attention to the protection of the privacy of its users, customers, and prospects and therefore undertakes to take the following steps: reasonable precautions required to protect the personal data collected against loss, theft, disclosure or unauthorized use.
In connection with the use of WHISE Software and, where applicable, the WHISE server, the Customer entrusts certain aspects of the data processing to WHISE, which acts as a "subcontractor".
The purpose of this provision is to regulate the procedures for the execution and organization of the processing of personal data by WHISE.
It is specifically agreed between the parties that WHISE, as a subcontractor, acts exclusively for the account and in accordance with the instructions of the Customer - who remains the controller - for the duration of the contract.
In this context, the Client and WHISE act in full transparency, in strict compliance with the law on the protection of privacy and the general regulation on data protection.
The Customer warrants that all personal data that it transmits to WHISE has been collected and is lawfully transferred. The Customer guarantees the accuracy of the personal data he transmits to WHISE.
WHISE is committed to having sufficient safeguards as to the implementation of appropriate technical and organizational measures to ensure that the processing meets the requirements of the Privacy Act and the General Data Protection Regulation. from its entry into force on 25 May 2018, and guarantees the protection of the rights of the data subject.
c) Data categories processed by WHISE as a subcontractor
In connection with the use of WHISE Software by the Customer, WHISE may process the following personal data:
- Personal identification data (surname, first name, postal address, email address, phone / fax number, website URL, date of birth, place of birth, national and ID number, state civil, photo);
- Professional data (company name, registered office, company / VAT number, professional telephone number, professional email address, website URL, function, status, representative's name);
- Real estate data that customers / users put on sale or lease or that they are looking for (property category, price range, geographic area, number of rooms, area, floor, elevator, terrace, garden, etc. .);
- Financial data (bank account number, banking institution, details of a possible mortgage loan);
- Data on behavior and browsing habits on the sites and applications of the controller;
- Any other data that the user, customer or prospect voluntarily communicates to the Customer.
- WHISE may also collect non-personal data. These data are qualified as non-personal data because they do not make it possible to identify (directly or indirectly) a natural person. This data may therefore be used for any purpose whatsoever, for example to improve the service of - - WHISE, products and services offered by the Customer or third party partners.
In the event that non-personal data are combined with personal data, so that an identification of a natural person would be possible, these data will be treated as personal data until the identification of a particular person is impossible.
d) WHISE missions as a subcontractor
In connection with the use of WHISE Software's to the Client, WHISE, acting as a "subcontractor", is responsible for processing the data only for the following purposes:
- in order to manage the Client's clientele;
- for the issue, collection and verification of the Customer's invoices;
- in order to inform the clients, users, prospects of the Client about the offers / real estate advertisements (sale, rental, ...) according to specific search criteria;
- in order to inform customers, users, prospects of the Client about the buyers / tenants according to the desired action (sale / lease, ...);
- in order to ensure the publication and visibility of real estate offers / advertisements on the Customer's website and, where applicable, in the media partners (real estate portals, newspapers, etc.);
- to connect / contact a seller / lessor and a buyer / tenant candidate;
- to follow and manage the evolution of a specific transaction (negotiation, offer, compromise, ...);
- to create and write real estate documents (compromise, sale, lease, ...);
- in order to provide the client of the Client with an activity report listing all the actions undertaken;
- in order to make sure suppliers related to the sales or renting of estates can deliver their products and/or services, eg. photographers, experts, ….
- in order to communicate to customers, users and prospects of the Customer promotional information on the products and services of the Customer and, where appropriate, its partners (direct marketing).
Nevertheless, WHISE may be required to perform data processing for missions that are not yet provided for in this contract, upon the Customer's prior written request. In this case, the latter undertakes to contact the person concerned before reusing his personal data, to inform him of the changes and give him the opportunity, if necessary, to refuse this reuse.
In the event that WHISE is legally obliged to perform data processing outside the missions agreed upon in this contract, it will inform the Customer as soon as possible.
e) Obligations of WHISE
In connection with the provision of WHISE Software's Client, WHISE undertakes to:
- process the transmitted data only for the purposes defined in this contract and in accordance with the instructions (general or specific) of the Customer;
- treat the data in a strictly confidential manner and limit access to the data only to those who need it for the execution of their work and according to the requirements of the WHISE Software service;
- not to make a copy (s) of the data made available to him, unless this (these) copy (s) is (are) necessary to carry out a mission in accordance with the present contract. WHISE, however, undertakes to delete this (these) copy (s) appropriately and definitively if it no longer needs to do so;
- take all the technical and organizational measures required to guard against any risk of accidental loss or destruction or unauthorized use of the data;
- notify the Customer of any security breach as soon as possible after having taken note of it, and at the latest within 48 hours of becoming aware of it;
- never keep the data longer than is necessary to perform the service for which they were provided, within the legal and regulatory deadlines;
- keep a record of all categories of processing activities carried out on behalf of the Client, including at least the following information: the identification data of WHISE and the Client (and, if applicable, those of the representative or delegate to the Data protection) ; the categories of treatments performed on behalf of the Client; any transfer of data to a third country or an international organization; as far as possible, a general description of the technical and organizational security measures implemented to ensure the security of personal data and their processing;
- where appropriate, make available to the supervisory authority - in this case the Belgian Privacy Commission - the register of processing activities or any other information required.
f) Data retention
WHISE will not keep the data longer than necessary to carry out the missions for which this data is made available. In this case, WHISE will delete them appropriately and definitively. This also applies to media on which a copy of the data has been stored.
At the end of this agreement, WHISE will have to delete all personal data and existing copies, or return them to the Customer at his request.
g) Communication to third parties
As a subcontractor, WHISE refrains from disclosing to third parties the personal data it processes, in any manner whatsoever, unless this communication has been approved by the Customer.
In the event that the subcontractor is legally obliged to communicate the personal data to a third party, he / she will make sure to inform the controller beforehand.
h) Data security
WHISE is committed to taking appropriate technical and organizational measures to secure personal data and their processing.
WHISE will ensure that access to personal data to be processed and processed is limited to WHISE personnel who require the data to perform the duties that the subcontractor assigns to them under this contract.
WHISE is committed to drawing the attention of its staff members who have access to the data or who are responsible for the processing of the importance of complying with the provisions of the Privacy Act and the General Protection Regulation. Datas. In this perspective, WHISE has them sign a confidentiality statement which is attached to their employment contract.
WHISE will provide the Customer, upon written request, with a description of the technical measures it has implemented to protect personal data against destruction, loss, falsification and dissemination or unauthorized access.
WHISE must notify the Customer of any security breach as soon as possible after having taken note of it, and at the latest within 48 hours of becoming aware of it. A security breach is a security breach resulting, accidentally or illegally, in the destruction, loss, alteration, unauthorized disclosure of any personal data transmitted, stored or otherwise processed, or unauthorized access to such data.
i) Secondary subcontractor
When WHISE recruits a secondary subcontractor to conduct specific processing activities on behalf of the Customer, the same data protection obligations as set forth in this contract are imposed on the secondary subcontractor by written contract.
In the case of a blanket authorization, WHISE informs the Customer of any planned changes regarding the addition or replacement of other secondary subcontractors.
When the secondary subcontractor does not fulfill its data protection obligations, WHISE remains fully liable to the Customer for the performance of the subcontractor's obligations.
j) Control by the Customer
The Customer has the right to control the compliance by WHISE of the methods of execution and organization of the processing of personal data entrusted to it. Upon written request by the Customer, WHISE shall transfer to the Customer all information necessary to evaluate the proper performance of this contract.
k) Cooperation with the Client and the supervisory authority
WHISE cooperates with the Client. In this context, it commits itself to:
o assist the Client, as far as possible, and at his request, through technical and operational measures, to fulfill his obligation to respond to requests from the persons concerned in order to exercise their rights under the law on the protection of privacy and the regulation on data protection (right of access to data, right of rectification, right of opposition, right of cancellation, etc.);
o cooperate with the supervisory authority, at the request of the latter or at the request of the Client, in the performance of its duties;
o Report immediately to the Client if he believes that one of his instructions constitutes a violation of the applicable national and European data protection provisions.
The Customer accepts full responsibility for the processing of the data of its customers, users and prospects, and undertakes to defend, indemnify and indemnify WHISE against all claims, liabilities, judgments, fines, taxes, fees and expenses (including the reasonable fees and expenses of counsel) - whatever they may be - arising from a breach by the Client of this article or its legal obligations.
8. WHISE Distributors
The WHISE Distributor of Customer will act as the Customer’s primary point of contact. WHISE does not provide direct support to the Customer, but provides second-line support to the WHISE Distributors. The Customer will contact its WHISE Distributor for all assistance and support.
9. Title to WHISE SOFTWARE
All intellectual property rights in, title to or ownership of WHISE SOFTWARE shall at all times remain with WHISE. This includes the copyrights on the structure, organization and overall composition of the standard WHISE websites. All manuals, documentation and programs, whether available in hard copy or accessible by remote inquiry shall remain confidential and the property of WHISE. Customer shall not use, print, copy, modify, translate or alter WHISE SOFTWARE in whole or in part.
The WHISE and WHISE SOFTWARE logo’s and names are protected trademarks of WHISE. The Customer is not entitled to use, copy, remove or hide these signs without express written approval of WHISE.
Customer is not allowed to grant any sub-license or other right with respect to WHISE SOFTWARE.
The Customer acknowledges that all information and/or data that it receives from WHISE in respect of WHISE SOFTWARE is confidential and represents an important commercial asset of WHISE. The Customer hereby undertakes to keep this confidential information and/or data strictly secret, and in no circumstances and in no way to divulge it and/or to make it known to third parties, and not to use this information and/or data to its own benefit without express written permission from WHISE. The Customer shall only pass the confidential information and/or data to or make it known to those of its employees that absolutely must have this information and/or data to use WHISE SOFTWARE and the related services.
WHISE undertakes a similar confidentiality obligation with respect to the confidential information of the Customer that is processed through WHISE SOFTWARE.
11. Limitation of liability of WHISE
WHISE will provide all reasonable efforts to ensure the proper functioning of WHISE SOFTWARE.
WHISE represents that WHISE SOFTWARE is developed in a professional manner and is consistent with generally accepted industry standards. WHISE will continue to improve WHISE SOFTWARE and warrants that WHISE SOFTWARE at all times will comply with such standards. However, WHISE does not warrant that WHISE SOFTWARE is entirely free of bugs and errors.
WHISE provides WHISE SOFTWARE “as it is”. WHISE does not warrant that the functions contained in WHISE SOFTWARE will meet the Customer’s performance requirements or that WHISE SOFTWARE will operate in accordance with the Customer’s expectations. The Customer accepts responsibility for the selection of WHISE SOFTWARE, its use and the results to be obtained there from.
WHISE makes no warranty of any kind, express or implied, and the warranty of fitness for a particular purpose is hereby excluded.
WHISE can only be held liable for gross negligence (“zware fout”, “faute grave”). It cannot be held liable when a defect or malfunction of WHISE SOFTWARE is attributable to (i) a software or hardware defect that was not issued by WHISE, or (ii) the fact that changes or amendments to WHISE SOFTWARE have been made without its permission, or (iii) if the Customer fails to report immediately any defect together with documentation and information relating to the occurrence of the defect.
The Customer understands that WHISE SOFTWARE is an online application and that all software and data will be run from the WHISE servers that are located in Europe. WHISE cannot be held liable when a defect or malfunction of WHISE SOFTWARE is attributable to network or communication issues.
WHISE will not be liable to the Customer or third parties for loss of profits or business, loss of data, indirect, consequential or incidental damages, even if WHISE has been advised of the possibility of such losses or damages. For direct damages, if repair in species is not possible, the liability of WHISE toward the Customer shall never exceed an amount equal to the license fees paid by the Customer over the last twelve months. The Customer shall take all necessary measures that can reasonably be expected to limit its damage.
The Customer shall indemnify WHISE and hold it harmless against and in respect to any and all claims, damages, losses, costs, expenses, obligations, liabilities, actions, suits, including without limitation, interest and penalties, reasonable attorneys’ fees and costs and all amounts paid in settlement of any claim, action or suit that may be asserted against WHISE or that WHISE shall incur or suffer that arise out of, result from or relate to: (a) the non-fulfillment or breach of any obligation of the General Terms or Annexes; (b) any claim of any nature whatsoever brought by any third party who may suffer damages of any sort as a direct or indirect result of the Customer’s activities relating to or in connection with the Customer’s use of WHISE SOFTWARE.
12. Customer website
A Customer can order web-services to connect its own website with WHISE SOFTWARE. Customers that opt to use web-services must be assisted by suppliers with sufficient technological knowledge.
13. Termination for cause
In case WHISE notices an action by Customer or lack of action by Customer that might in WHISE’s reasonable opinion breach the General Terms or the Annexes, harm directly or indirectly a third party, might otherwise be objectionable or if a third party notifies WHISE of a possible harm, WHISE will contact the Customer in order to remedy the breach or harm caused as soon as possible and in any event within 15 days.
In extreme cases or in case the Customer fails to timely remedy his breach or the harm caused, WHISE — at its sole discretion — may immediately and without notice, without intervention of the court (“de plein droit”), block or remove any content and/or terminate or suspend any Customer license, without any repayment of license fees or other indemnification of Customer and with complete indemnification of WHISE.
In case WHISE discontinues its services or blocks the Customer’s access to WHISE SOFTWARE on the basis of this provision, Customer will not be entitled to any indemnification from WHISE for the damages suffered as a result thereof. If the Customer unsuccessfully contests WHISE’s decision in court, the Customer will reimburse WHISE’s legal costs and expenses (incl. all attorney fees and costs).
14. Force Majeure
Neither party shall be in default or otherwise liable for any delay in or failure of its performance if such delay or failure arises by any reason beyond its reasonable control, including the elements, earthquakes, floods, fires, epidemics, riots, failures or delay in transportation or communications, or any act or failure to act by the other party or such other party's employees, agents or contractors.
If any of the provisions of this General Terms and Annexes are held to be or rendered void or unenforceable, the Customer agrees that the same shall not result in the nullity or unenforceability of the remaining provisions, but that Customer and WHISE will use their best efforts to replace such provision with a valid and enforceable provision which will achieve, to the extent possible, the economic, business or other purpose for said void or unenforceable provision.
The mere fact that WHISE does not insist upon or enforce strict compliance by the Customer of any provision of the General Terms or Annexes shall not be construed as a waiver or relinquishment of WHISE's rights pursuant to this condition, unless made in writing.
The rights and remedies afforded to WHISE pursuant the General Terms and Annexes are in addition to and do not in any way limit any other rights or remedies afforded to WHISE by law. All such rights and remedies are cumulative and may be exercised singularly or concurrently.
All notices between WHISE and the Customer shall be written in English and shall be deemed to be given to the Customer if sent by e-mail to the e-mail address for notices and to WHISE if sent by e-mail email@example.com.
16. Applicable law and venue
Any agreement between Customer and WHISE with respect of the use of WHISE SOFTWARE and the General Terms and Annexes shall be governed by, interpreted and construed in accordance with the laws of Belgium. Venue for any proceeding brought hereunder shall be with the courts residing in Brussels (Belgium).
WHISE SOFTWARE INFORMATION PAGE
WHISE SOFTWARE is an advanced and intelligent online CRM software specifically developed for the real estate professional. WHISE SOFTWARE is internet-based. The basic pack provides the Customer with a login and password for the use of the software application.
This software contains the following packs:
THE BASIC PACK
• Estates: management of estates, export of advertisements to portal sites, history of estates,...
• Contacts: management of contacts (owners, buyers, prospects,...), history of contacts, preferences of prospects (number of bedrooms wanted, price range, area,...),...
• Automated matching: the system automatically looks for matches between the criteria of the prospect and the available estates,...
• Calendar: management of the agenda of the whole staff
• Administration: management of users, passwords, rights, default settings,...
THE EXPERT PACK
Contains the functionalities of the BASIC PACK plus uPhone, uMail, and other functionalities.
THE ADDITIONAL PACKS
MARKETING BOOSTER: The Marketing Booster is pack which gives the possibility for the Customer to do e-mail Marketing campaigns to his database of contacts. It contains the following functionalities:
Treatment of refused mails
Layout tool for mails
System to keep database up-to-date
A reporting tool
A system to send the mails.
This version of the General Terms & Conditions dates from April 24th, 2018