Terms of service

Posted: 5 October 2018. Effective: 5 October 2018.

Thank you for working with the Akvo Foundation!

The Services are provided by the Akvo Foundation. “Akvo” means Stichting Akvo (Akvo Foundation with it's incorporated organisational entities) located at ‘s-Gravenhekje 1A, 1011 TG Amsterdam, The Netherlands.

If you are using the Services on behalf of an organisation, you are agreeing to these Terms, including the binding arbitration provision contained in section 13, for that organisation and promising that you have the authority to bind that organisation to these Terms. In that case, “you” and “your” will refer to that organisation (also referred to as the “Partner”).

Akvo and the Partner is individually a “Party” or collectively “Parties”.

For the purpose of the Akvo General Terms of Service the “Agreement” shall include any individual Agreement concluded between Parties defining the scope of authorised services and deliverables (“Services”), including software-as-a-service (SaaS). As part of the Akvo General Terms of Service, the Akvo SaaS Terms of Service are applicable on software-as-a-service as described in the Agreement.

The following documents shall be deemed to form and be read and construed as part of the Agreement concluded between parties, in the following order of precedence:

- the Agreement

- the Akvo Foundation General Terms of Service

- the Akvo SaaS Terms of Service

- the Akvo Data Processing Agreement

- the Akvo Technical Proposal including services pricing.

For the purpose of the Agreement “Work Product” shall include, without limitation, all designs, discoveries, creations, works, devices, masks, models, work in progress, inventions, products, computer programs (both source and object code), developments, drawings, notes, documents, reports, business processes, information, frameworks, advice and material Akvo makes, conceives or develops, alone or in collaboration with others including any summary, abstract, portion or derivation thereof.

Separate software-as-a-service or SaaS Terms of Service are available for using our software services and tools: SaaS Terms of Service

1 Services

1.1 The scope of authorised services and deliverables to be performed by Akvo ("Services") will be described in the Agreement explicitly referencing to the Akvo General Terms of Service incorporated herein by reference.You must follow any policies made available to you within the Services.

1.2 The Services described in the Agreement are expressly not the internet software-as-a-service (“SaaS”) which Akvo provides, including but not limited to: Akvopedia, Akvo Flow & Caddisfly, Akvo Lumen, Akvo Really Simple Reporting (“Akvo RSR”) and Akvo Sites. The terms for software-as-a-service are contained in the separate Akvo SaaS Terms of Service.

2 Billing and payments

2.1 Akvo’s budget for performing the Services is described in the Agreement, referred to as “Total Budget”.

2.2 Akvo fees are based on the costs of the software tools, services and pre-approved expenses. Each agreement has a detailed breakdown of the fees. All Akvo’s fees are in Euro and are excluding any taxes (service tax, VAT, withholding tax etc). Akvo will submit invoices for fees and expenses.

2.3 In addition to Fees, Reimbursable Expenses, any applicable taxes incurred in connection with the Services other than taxes imposed on Akvo’s income (“Taxes”) will be billed to, and paid by, the Partner.

2.4 The Partner shall pay each undisputed invoice within thirty (30) days of the date of the invoice. The Partner shall notify Akvo in writing of any dispute regarding all or part of an invoice within twenty (20) business days from receipt of the invoice. In the event that the Partner does not timely provide such notice, the entire invoice shall be deemed valid. The undisputed portion of an invoice shall be paid in accordance with the procedures described herein. In the event the Partner fails to pay in accordance with those procedures, Akvo may, at its option, terminate the Agreement pursuant to Article 8 or suspend performance until payment is made.

2.5 A finance charge of 1.5% per month on the outstanding balance of an invoice will be charged on past due amounts (except on any fees that are disputed in by the Partner in accordance with Section 2.4). Payments by the Partner will thereafter be applied first to accrued interest and then to the unpaid principal balance.

3 Independent contractor

3.1 It is expressly agreed that Akvo shall perform the Services under the Agreement as an independent contractor with responsibility for its employees, subcontractors, suppliers and agents, and sole responsibility for the means and methods of performance and without direction or control by the Partner.

3.2 For onsite training, the Partner has the responsibility of informing Akvo employees, subcontractors, suppliers or agents of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the training or Partner’s premises.

3.3 Nothing in the Agreement shall be constructed as creating a single enterprise, agency, joint venture or employer-employee relationship between the Parties hereto, and neither Party shall represent itself to any third party to be an owner, officer, agent or employee of the other Party.

4 Ownership of Work Product and Deliverables

4.1 Akvo is an organisation that expressly works with Work Products and makes Work Product public under several different open source licenses for computer software and other open licenses, including but not limited to, the GNU Affero General Public License and the Creative Commons licenses as per Akvo’s Licensing and Copyright policy information in Section 5 of these Terms. For more information on licensing and copyright go to our ‘Licensing and copyright’ policy page. The Partner agrees to promptly disclose and describe to Akvo any and all Work Products that the Partner is sharing with Akvo, which should not be a joint Work Product published under an open source license or a Creative Commons license. The Partner furthermore agrees to mark such Work Products clearly with “Not a Contribution”.

5 Licensing and copyright

5.1 Do note that Akvo® is a registered trademark of Stichting Akvo (Akvo Foundation). These Terms do not grant you any rights to use the Akvo Foundations trademarks, logos, domain names, or other brand features. If you are seeking permission to use the Akvo Foundation trademarks, logos, service marks, trade dress, slogans, screenshots, copyrighted designs or other brand features, please contact info@akvo.org.

5.2 The services, software and technology we use to provide our Services are protected by copyright, trademark, and other laws of both the Netherlands and other countries. The Akvo Foundation’s trademarks include, but are not limited to, the names Akvo®, Akvo.org™, Really Simple Reporting™, Akvo RSR™, Akvopedia™, Akvo Caddisfly™ and Akvo Lumen™. The trademarks: Field Levels Operation Watch™, FLOW™, Akvo FLOW™ and Akvo Flow™, belong to Water for People and are used by Akvo Foundation with permission.

5.3 You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion or use of, or access to Akvo Software or Services, with the following exceptions:

5.3.1 For images you agree to share them on the terms of the Creative Commons Attribution-noncommercial-sharealike 3.0 Unported License [CC-BY-NC-SA] (or later versions as applicable), which can be found in its entirety here: https://creativecommons.org/licenses/by-nc-sa/3.0/ and Creative Commons Attribution-Noncommercial-Share Alike 3.0 Plus Netherlands License (CC-BY-NC-SA Plus).

5.3.2 For data you agree to share it on the terms of the following two license agreements:

5.3.2.1 Open Database License 1.0 [odbl] (or later versions as applicable), which can be found in its entirety here: https://opendatacommons.org/licenses/odbl/1.0/

5.3.2.2 Creative Commons Attribution-sharealike 3.0 Unported License [CC-BY-SA] )or later versions as applicable), which can be found in its entirety here: https://creativecommons.org/licenses/by-sa/3.0/

5.4 The Akvo Foundation’s agent for notice of claims of copyright or other intellectual property infringement can be reached as follows: By mail: Copyright Notice c/o Akvo Foundation ‘s-Gravenhekje 1A 1011 TG Amsterdam Netherlands, By email: legal@akvo.org. For more information on licensing and copyright go to our Licensing and copyright policy page.

6 Changes and Delays

6.1 If changes in the nature or extent of the Services requested by the Partner in writing are necessitated by changing conditions of law or professional standards, Force Majeure Events, scheduled delays due to lack of Client Cooperation (as defined below), or events beyond Akvo’s reasonable control, cause an increase or decrease in the cost of, or the time required for, performance of any part of the Services in the Agreement, the Parties, shall in good faith, negotiate an equitable adjustment in the price to be paid, the delivery schedule, or both, and shall modify the affected Agreement accordingly.

6.2 For the purpose of the Akvo General Terms of Service, “Force Majeure Events” include strike, lockout, earthquake, hurricane, flood, fire or other acts of nature, war, rebellion, civil disorders, acts of terrorism, laws, regulations, acts of civil or military authorities (including the denial or cancellation of any export or other necessary license), unavailability of materials, carriers, or communication facilities, and any other unforeseeable causes beyond the reasonable control of the Party whose performance is affected (except for financial inability). Any Party so impacted in whole or in part by a Force Majeure Event shall promptly give the other Party notice of the Force Majeure Event, including reasonably full particulars about the event. Both Parties shall use all reasonable efforts to minimize the consequences of any Force Majeure Event.

6.3 The Parties acknowledge and agree that Akvo’s ability to perform the Services in a timely and cost-effective manner is condition upon its receiving the Partner’s reasonable cooperation (“Cooperation”), including but not limited to the Partner’s good faith and timely provision to Akvo of information and resources reasonably requested by Akvo in connection with performing the Services under the Agreement. The Partner’s failure to provide Cooperation may result in a change to the delivery schedule and in such event, the Parties shall modify the affected Agreement accordingly.

6.4 If the Partner cancels or delays a planned work session(such as a kick-off session or training session), less than three (3) weeks in advance, Akvo is entitled to receive a compensation of 25% of the budgeted staff time and 100% of all other costs made (such as flight ticket purchases, etc).

6.5 Each Party will give prompt written notice to the other Party whenever a Party observes or becomes aware of any development that affects the scope or timing of the other Party’s performance of its obligations hereunder or the Services under the Agreement.

7 Limitations of liability

7.1 Except with respect to any indemnification obligations set forth in Section 7 neither party will be liable to the other party for any indirect, incidental, special, punitive or consequential damages (including, but not limited to, a loss of earnings, profits, products, data or goodwill, economic loss, delay, extended overheads, regulatory fines or penalties and all costs and expenses related to regulatory fines or penalties, and business interruption damages) in any action or for any claim or cause of action in contract, tort or any other legal claim or cause of action, whether or not a Party might have been advised of the possibility of such damages.

7.2 Except with respect to any indemnification obligations set forth in article 7 each Party’s total aggregate liability in any action or for any claim or cause of action in contract, tort or any other legal claim or cause of action related to or arising out of the Agreement, or Akvo’s performance of the Services shall be limited to the fees paid or payable pursuant to the Agreement covering the Services or Work Product that gives rise to liability.

8 Indemnification

8.1 Both Parties shall indemnify, defend and hold harmless the other Party, its affiliates and their respective officers, directors, employees, agents, successors and assigns (together with each Party, “Indemnified Persons”) from and against all claims by a third party for losses, damages, costs or liability of any kind (including expenses and attorneys’ fees) arising from, in connection with or relating to gross negligent acts or omissions or wilful misconduct of the Party’s personnel in the performance of its obligations under the Agreement including, but not limited to, those that cause bodily injury or death or physical damage to tangible property and any theft or other misappropriation of the Party’s or its personnel’s information, property of funds by the other Party or the other Party’s employees.

8.2 The party seeking indemnification under this Section will: (a) notify the indemnifying party in writing within thirty (30) days after the indemnified party receives notice of the claim; (b) give the indemnifying party sole control of the defence and all related settlement negotiations, provided that the indemnifying party shall not settle any claim in hereunder without the indemnified party’s written consent if such settlement imposes any liability on the indemnified party, or contains or implies any wrongful action or inaction or any admission of wrongdoing by or with respect to the indemnified party; and (c) provide the indemnifying party with reasonable assistance, at the indemnifying party’s sole expense, in the defence of the claim.

9 Termination of services

9.1 For the purpose of the Akvo General Terms of Service, “Default” shall mean a Party’s breach of a material obligation under the Agreement. In the event of a Default by one Party, the other Party may terminate the Agreement by providing thirty (30) days written notice of termination to the other Party describing the grounds for Default on which the termination is based, provided that the Party receiving the termination notice shall have the right to cure such Default within thirty (30) days from receipt of the notice. If the Party receiving the termination notice does not cure the Default within thirty (30) days, the Agreement will be terminated, or the other party may withhold further services, such as any SaaS being provided under the Agreement.

9.2 In the event that the Agreement expires or is terminated for any reason, (i) the Partner shall pay Akvo for the portion of the Services performed and the Reimbursable Expenses and taxes incurred prior to the effective date of termination, (ii) Akvo shall deliver to the Partner any Deliverables and/or Work Product, completed or then in progress, in Akvo’s possession: provided, however, that all such deliverables and/or work product delivered to the Partner under this Section shall be provided to the Partner “as is” and any warranties, expressed or implied, including, without limitation, implied warranties of merchantability and fitness for a particular purpose are hereby disclaimed. The Partner assumes any and all risks associated with any use or dissemination of all or any portion of the deliverables and/or Work Product that is delivered upon termination of the Agreement in accordance with this Section.

9.3 The Partner will give prompt written notice to Akvo if the Partner observes or becomes aware of any perceived defect in Akvo’s performance of the Service under the Agreement and Akvo will respond to such notices in accordance with its obligations under the Agreement.

10 Warranties

10.1 Akvo warrants to the Partner that: (i) the Services shall be performed in a professional and workmanlike manner and in accordance with the prevailing industry standards by Akvo’s personnel and reasonably believed by Akvo to be competent and fully trained and qualified; (ii) Akvo is the sole and exclusive creator of the Deliverables and Work Product provided to the Partner hereunder, other than contributions of open source or openly licensed Work Products provided by the community surrounding the Work Products which Akvo produce, and Akvo’s performance of its obligations under the Agreement will not violate, infringe or misappropriate upon the intellectual property or proprietary rights of a third party; (iii) Akvo is under any pre-existing obligations inconsistent with its obligations under the Agreement; (iv) Akvo will comply, with all applicable laws, status, rules, regulations and ordinances with respect to the Services and Akvo’s performance under the Agreement, including, laws related to data privacy, trans-border data flow and data protection, and shall obtain all necessary approvals and permits to perform its obligations under the Agreement. For more information on how Akvo handles data privacy please read Akvo’s General Privacy Policy.

10.2 The forgoing warranties are in lie of all other warranties, express or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose, which are expressly disclaimed.

11 Assignment and successors

11.1 Neither Party may transfer or assign the Agreement or any benefit, obligation, duty, right or claim arising out of or related to the Agreement without the prior written consent of the other Party.

11.2 The Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, and their authorised heirs, administrators and successors and assigns.

12 No third party beneficiaries

12.1 With the exception of the Indemnified Persons, the covenants, conditions and terms of the Akvo General Terms of Service shall be, to the extent of permitted by law, for the sole and exclusive benefit of the Parties hereto and their respective permitted successors and assigns.

13 Notices

13.1 Any notice required under the Agreement shall be given in writing by (i) personal delivery, (ii) a nationally-recognised, next-day courier service, (iii) first-class registered or certified mail, postage prepaid, (iv) or electronic mail to the Party’s address specified in the Agreement, or to the address that a Party has notified to be that Party’s address for purposes of this section.

13.2 Any notice given under the Agreement will be effective on (i) the other Party’s receipt of it, or (ii) if mailed, the earlier of the other Party’s receipt of it and the fifth business day after mailing it through the national post office, or two days following the deposit of the same with a nationally recognised express delivery service

13.3 Each Party shall modify their address as necessary by giving written notice of the modification to the other Party in accordance with this Section.

14 Ruling law, mediation and arbitration

14.1 The Agreement shall be governed by and construed in accordance with the substantive and procedural laws of The Netherlands, excluding its choice of law provisions and conflicts of laws principles.  The parties specifically exclude from application to the Agreement that law known as the United Nations Convention on the International Sale of Goods, except that this arbitration clause and any arbitration hereunder shall be governed by the Netherlands Arbitration Institute (NAI) under the NAI Mediation Rules.

14.2 The Akvo General Terms of Service with respect to the subject matter hereof, supersedes the terms of any discussions or any other communications, except for services terms and conditions covering SaaS as stated in section 1.3 or a separate confidentiality article in the Agreement covering confidentiality as stated in section 14. If any provision of the Akvo General Terms of Service is held invalid, that provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of the Akvo General Terms of Service shall continue in full force and effect. No term or provision hereof will be considered waived by either Party, and no breach excused, unless such waiver or consent is in writing signed by such Party. No consent by a Party to, or waiver of, a breach, whether express or implied, will constitute consent to, waiver of, or excuse of any other, different or subsequent breach

14.3 The parties shall seek amicably to settle any controversy or claim arising out of or relating to the Agreement, or the breach thereof. In the event of any controversy or claim arising out of or relating to the Agreement, or a breach thereof, remains unresolved thirty (30) days after either party gives written notice of the existence of such dispute, the parties hereto agree first to try and settle the dispute by mediation, administered by the Netherlands Arbitration Institute (NAI) under the NAI Mediation Rules. If settlement is not reached within sixty (60) days after service of a written demand for mediation, any unresolved controversy or claim arising out of or relating to the Agreement shall be settled by arbitration in accordance with the NAI Arbitration Rules of the Netherlands Arbitration Institute. The seat of the arbitration shall be Amsterdam, The Netherlands.

14.4 One (1) arbitrator shall settle the arbitration. The arbitrator shall be appointed by the Netherlands Arbitration Institute within twenty-one (21) days of receipt of the request for arbitration. The arbitrator is authorized to award to the prevailing party, if any, as determined by the arbitrator its costs and expenses, including attorneys’ fees. The arbitrator may not award punitive, exemplary, or consequential damages, nor may the arbitrator apply any multiplier to any award of actual damages, except as may be required by statute. The arbitrator shall have the discretion to hear and determine at any stage of the arbitration any issue asserted by any party to be dispositive of any claim or counterclaim, in whole or part, in accordance with such procedure as the arbitrator may deem appropriate, and the arbitrator may render an award on such issue.

15 Confidentiality

15.1 Neither Party shall offer confidential information to the other Party without clearly marking the information “Confidential” and “Not a Contribution”. If either Party requires confidentiality then a separate article on confidentiality will have to be added to the Agreement.

16 About these Terms

16.1 We may modify these terms that apply to an Akvo Service to, for example, reflect changes to the law or changes to our Services. You should look at the terms regularly. We’ll post notice of modifications to these terms on this page.

16.2 Changes will not apply retrospectively and will become effective no earlier than fourteen days after they are posted. However, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. If you do not agree to the modified terms for a Service, you should discontinue your use of that Service.

16.3 These terms govern the relationship between Akvo and the Partner (or organisation). They do not create any third party beneficiary rights.

16.4 If you do not comply with these terms and we do not take action immediately, this does not mean that we are giving up any rights that we have (such as taking action in the future).

16.5 If it turns out that a particular term is not enforceable, this will not affect any other terms.

16.6 The Akvo Foundation and you are not legal partners or agents; instead, our relationship is that of independent contractors.

17 Breach of terms and questions

17.1 If you are aware of any breach of these Terms or have any questions with regards to the Terms, please contact us at:

Akvo Foundation

‘s-Gravenhekje 1A,

1011 TG Amsterdam,

The Netherlands.

legal@akvo.org

Posted: 5 October 2018. Effective: 5 October 2018.

Thank you for using our products, websites and cloud services (“SaaS Services”). The SaaS Services are provided by the Akvo Foundation. “Akvo” means Stichting Akvo (Akvo Foundation with it’s incorporated organisational entities) located at ‘s-Gravenhekje 1A, 1011 TG Amsterdam, The Netherlands.

By using our SaaS Services, you are agreeing to these terms. Please read them carefully.

Our SaaS Services are diverse, so sometimes additional terms (“Additional Terms”) or product requirements may apply. Additional Terms are available for each of the relevant SaaS Services and those Additional Terms become part of your agreement with us if you use those SaaS Services.

For the purpose of the Akvo SaaS Terms of Service the “Agreement” shall include any individual Agreement concluded between Parties defining the scope of software-as-a-service (referred to as “SaaS” or “SaaS Services”). The Akvo SaaS Terms of Service are applicable on software-as-a-service, as described in the Agreement.

The following documents shall be deemed to form and be read and construed as part of the Agreement concluded between parties, in the following order of precedence:

– the Agreement

– the Akvo Foundation General Terms of Service

– the Akvo SaaS Terms of Service

– the Akvo Data Processing Agreement

– the Akvo Technical Proposal including services pricing.

If you are using the SaaS Services on behalf of an organisation, you are agreeing to these Terms for that organisation and promising that you have the authority to bind that organisation to these Terms, including the binding arbitration provision contained in Section 17. In that case, “you” and “your” will refer to that organisation (also referred to as the “Creator” or “Partner”).

Akvo and the Partner is individually a “Party” or collectively “Parties”.

You may use the SaaS Services only if you have the power to form a contract with the Akvo Foundation and are not barred under any applicable laws from doing this.

1 Using our services

1.1 You must follow any policies made available to you within the SaaS Services.

1.2 Do not misuse our SaaS Services, for example, do not interfere with our SaaS Services or try to access them using a method other than the interface and the instructions that we provide. You may use our SaaS Services only as permitted by law. We may suspend or stop providing our SaaS Services to you if you do not comply with our terms or policies or if we are investigating suspected misconduct.

1.3 Using our SaaS Services does not give you ownership of any intellectual property rights in our SaaS Services or the content that you access. You may not use content from our SaaS Services unless the content has been published publicly by its Creator, you obtain permission from its Creator or are otherwise permitted by law.  Do not remove, obscure or alter any legal notices displayed in or along with our SaaS Services.

1.4 You are responsible for your conduct, your content and your communications with others while using our SaaS Services. We may review content to determine whether it is illegal or violates our policies, and we may remove or refuse to display content that we reasonably believe violates our policies or the law.

1.5 In connection with your use of the SaaS Services, we may send you service announcements, administrative messages and other information. You may opt out of some of those communications. Read the Akvo Foundation’s Privacy Policy to find out more information on how your data is handled by us.

2 Your Akvo SaaS Services user Account

2.1 You may need a user account  (“Account”) in order to use some of our SaaS Services. You may create your own Account, or your Account may be assigned to you by an administrator, such as your employer or organisation. If you are using an Account assigned to you by an administrator, different terms may apply, and your administrator may be able to access or disable your Account.

2.2 To protect your Account, keep your password confidential. You are responsible for the activity that happens on or through your Account. Do not to reuse your Account password on third-party applications. If you learn of any unauthorised use of your password or Account please contact breach@akvo.org immediately.

3 Privacy and Copyright Protection

3.1 Akvo Foundation’s Privacy Policies explain how we treat your personal data and protect your privacy when you use our products or services. By using our SaaS Services, you agree that the Akvo Foundation can use such data in accordance with our Privacy Policies.

3.2 The software and technology we use to provide our SaaS Services are protected by copyright, trademark, and other laws of both the Netherlands and other countries. These Terms do not grant you any rights to use the Akvo Foundations trademarks, logos, domain names, or other brand features. For more information on licensing and copyright go to our ‘Licensing and copyright’ policy page.

4 Billing and payments

4.1 Akvo’s budget for performing the SaaS Services is described in the Agreement. Each Agreement will contain a budget section with separate software-as-a-service product fees as “Software tools” (referred to here as “SaaS Fees”).

4.2 You shall pay each undisputed invoice within thirty (30) days of the date of the invoice. You shall notify Akvo in writing of any dispute regarding all or part of an invoice within twenty (20) business days from receipt of the invoice. In the event that you do not timely provide such notice, the entire invoice shall be deemed valid. The undisputed portion of an invoice shall be paid in accordance with the procedures described herein. In the event the Partner fails to pay in accordance with those procedures, Akvo may, at its option, terminate the Agreement to supply the SaaS Services or suspend performance until payment is made.

4.3 A finance charge of 1.5% per month on the outstanding balance of an invoice will be charged on past due amounts (except on any fees that are disputed in by the Partner). Payments by the Partner will thereafter be applied first to accrued interest and then to the unpaid principal balance.

4.4 You may request an extension or an upgrade to your plan at any time. This would be agreed upon in an addendum to the existing Agreement. You may request to downgrade your plan at the end of each contractul year, with at least 60 (sixty) days notice period.

5 Auto-renewal of SaaS Services

5.1 Akvo SaaS Service agreements will be renewed automatically, each year for an additional one (1) year period, for a period of no more than three (3) years. Thereafter, a new agreement will be negotiated.

5.2 Termination of automated renewals of SaaS Services are accepted with a thirty (30) day notice period.

5.3 As protection against price resets, due to improved functionality of the SaaS Service over time, Akvo will adjust the SaaS Fee by no more than 5% over each renewal period, for a maximum of three (3) years. Thereafter, a new agreement will be negotiated.

6 Modifying and Terminating our SaaS Services

6.1 We are constantly changing and improving our SaaS Services. We may add or remove functionalities or features and we may suspend or stop a SaaS Service altogether.

6.2 Termination of SaaS Services are accepted with a thirty (30) day notice period.  Pre-paid service fees are not refundable. The Akvo Foundation may also stop providing SaaS Services to you or add or create a new limit to the SaaS Services at any time.

6.3 We believe that you own your data, and preserving your access to such data is important. If we discontinue a SaaS Service, where reasonably possible, we will give you reasonable advance notice and a chance to remove information from that SaaS Service.

6.4 Upon termination your data will be held by Akvo for a period described in our Retention Policy unless negotiated separately in the Agreement with the Akvo Foundation.

7 Your content in our SaaS Services

7.1 Some of our SaaS Services allow you to upload, submit, store, send and receive content. It is your responsibility to ensure that no content is published or collected which could cause serious harm to individuals or property, using our SaaS Services. You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours. If you have any questions about this, please contact your Akvo Foundation account manager.

7.2 When you upload, submit, store, send or receive content to or through our SaaS Services, you give Akvo (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes that we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights that you grant in this licence are for the limited purpose of operating and improving our SaaS Services, and to develop new ones.

7.3 Some of our SaaS Services may display your Profile name when you choose to publicly publish your content.

7.4 You can find more information about how the Akvo Foundation uses and stores content in the Privacy Policies or Additional Terms for particular SaaS Services. If you submit feedback or suggestions about our SaaS Services, we may use your feedback or suggestions without obligation to you.

8 Sharing your content

8.1 In cases where an organisation collects data that is not sensitive or private, we encourage them to open up their data where appropriate, so it can support ‘the common good’.

8.2 You do agree to share openly published or non-private content which you enter into the Akvo Foundations software through the Akvo Foundation’s Application Programming Interfaces (APIs) and the services with any other Akvo Foundation platform (such as maps, etc.) using open license agreements.

8.3 For images you agree to share them on the terms of the Creative Commons Attribution-noncommercial-sharealike 3.0 Unported License [CC-BY-NC-SA] (or later versions as applicable), which can be found in its entirety here: https://creativecommons.org/licenses/by-nc-sa/3.0/

8.4 For data you agree to share it on the terms of the following two license agreements:

8.4.1 Creative Commons Attribution-sharealike 3.0 Unported License [CC-BY-SA] )or later versions as applicable), which can be found in its entirety here: https://creativecommons.org/licenses/by-sa/3.0/

8.4.2 Open Database License 1.0 [odbl] (or later versions as applicable), which can be found in its entirety here: https://opendatacommons.org/licenses/odbl/1.0/

8.5 It is your responsibility to ensure that you have consent to share any personal data.  You can read more about how The Akvo Foundation handles personal data in the Akvo Privacy Policy.

9 Other content

9.1 The SaaS Services may contain links to third-party websites or resources. The Akvo Foundation does not endorse and is not responsible or liable for their availability or accuracy or any related content, products or services. You are solely responsible for any use of such websites or resources.

10 About Software in our SaaS Services

10.1 When a SaaS Service requires or includes downloadable client software package or application, this software may be updated automatically on your device once a new version or feature is available, or you may be requested to allow the update.

10.2 You are responsible for updating all mobile devices, API integrations and widgets, when required.

10.3 The Akvo Foundation gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive right to use the software provided to you by the Akvo Foundation as part of the SaaS Services. This licence is for the sole purpose of enabling you to use and enjoy the benefit of the SaaS Services as provided by the Akvo Foundation in the manner permitted by these terms.

10.4 The software is covered by an open source license, GNU Affero General Public License v3.0 [AGPL 3.0] (or later versions as applicable), which can be found in its entirety here: https://www.gnu.org/licenses/agpl-3.0.html

11 Cloud storage providers

11.1 The Akvo Foundation uses cloud services, provided by various third party processors, for software execution, data storage, data retention and processing. Our third party processors (“Sub-processors”) are amongst the most used and best known service providers globally, are ISO certified and comply with US and EU regulations. Cloud storage allows our partners to use our SaaS Services across the globe, with ease. Visit the link for a list of our current Sub-processors.

11.2 The exact rules and regulations around storing data in the cloud are, in many countries, still under development. Some countries demand that data which is related to national security be stored inside the country. The Akvo Foundation has a policy in place not to work with partners on initiatives that aim to collect data that relates to matters of national security. It is your responsibility to ensure that data is collected in compliance with national laws in countries where you use the service.

12 Our Warranties and Disclaimers

12.1 Other than as expressly set out in these terms or Additional Terms, neither the Akvo Foundation nor its suppliers makes any specific promises about the SaaS Services. For example, we do not make any commitments about the content within the SaaS Services, the specific functions of the SaaS Services or their reliability, availability or ability to meet your needs. We provide the SaaS Services “as is”.

12.2 Some jurisdictions provide for certain warranties, like the implied warranty of fitness for a particular purpose and non-infringement. To the extent permitted by law, we exclude all warranties.

13 Liability of our SaaS Services

13.1 When permitted by law, the Akvo Foundation and our suppliers, will not be responsible for lost profits, revenues or data, financial losses or indirect, special, consequential, exemplary or punitive damages.

13.2 To the extent permitted by law, the total liability of the Akvo Foundation and its suppliers for any claims under these terms, including for any implied warranties, is limited to the amount that you paid us to use the SaaS Service or Services in question (or, if we choose, to supplying you with the SaaS Services again).

13.3 In all cases, Akvo and its suppliers will not be liable for any loss or damage that is not reasonably foreseeable.

13.4 In order to use our SaaS Services a contract is required. Our SaaS Services are not intended for personal use.

14 Business use of our SaaS Services

14.1 If you are using our SaaS Services on behalf of an organisation, that organisation accepts these terms. It will hold harmless and indemnify the Akvo Foundation and its suppliers, officers, agents and employees from any claim, action or proceedings arising from or related to the use of the SaaS Services or violation of these terms, including any liability or expense arising from claims, losses, damages, judgements, litigation costs and legal fees as per Section 15 of these terms.

14.2 You may not assign SaaS Services to a third party, without prior written approval of the Akvo Foundation.

14.3 For organisations within the European Union, or collecting data on data subjects who are European citizens, we have a Data Processing Agreement available on our website.

15 Indemnification

15.1 Both Parties shall indemnify, defend and hold harmless the other Party, its affiliates and their respective officers, directors, employees, agents, successors and assigns (together with each Party, “Indemnified Persons”) from and against all claims by a third party for losses, damages, costs or liability of any kind (including expenses and attorneys’ fees) arising from, in connection with or relating to gross negligent acts or omissions or wilful misconduct of the Party’s personnel in the performance of its obligations under the Agreement within the current binding laws including, but not limited to, those that cause bodily injury or death or physical damage to tangible property and any theft or other misappropriation of the Party’s or its personnel’s information, property of funds by the other Party or the other Party’s employees.

15.2 The party seeking indemnification under this Section will: (a) notify the indemnifying party in writing within thirty (30) days after the indemnified party receives notice of the claim; (b) give the indemnifying party sole control of the defence and all related settlement negotiations, provided that the indemnifying party shall not settle any claim in hereunder without the indemnified party’s written consent if such settlement imposes any liability on the indemnified party, or contains or implies any wrongful action or inaction or any admission of wrongdoing by or with respect to the indemnified party; and (c) provide the indemnifying party with reasonable assistance, at the indemnifying party’s sole expense, in the defence of the claim.

15.3 For indemnification when dealing with Personal Data protection under the EU GDPR, please read Section 12 of The Akvo Foundation Data Processing Agreement.

16 Additional terms

16.1 Akvo Really Simple Reporting (Akvo RSR)

16.1.1 Your content

16.1.1.1 By using Akvo RSR you provide us with project information, data and images that you submit to and decide to publish through Akvo RSR (together, “your content”). You retain full ownership of your content. We don’t claim any ownership to any of it. You do agree to share your content which you enter into the Akvo RSR system through the Akvo RSR system, for projects which you publish publicly, through the Akvo RSR Application Programming Interface (API) and the Services using open license agreements.

16.1.1.2 It is your responsibility to ensure that you have consent to share any personal data. You can read more about how Akvo RSR handles personal data in the Akvo RSR Privacy policy.

16.2 Akvo Flow

16.2.1 Your content

16.2.1.1 By using Akvo Flow, which incorporates Akvo Caddisfly, you provide us with data and images that you submit through Akvo Flow together, “your content”). You retain full ownership of your content. We don’t claim any ownership to any of it. You do agree to share your content which you enter into the Akvo Flow system through the Akvo Flow system, for data which you publish publicly, through the Akvo Flow Application Programming Interface (API) and the Services using open license agreements.

16.2.1.2 Where a Partner collects data that is not sensitive or private, we encourage them to open up their data where appropriate, so it can support ‘the common good’. There is a specific setting in Akvo Flow that enables you to do this automatically.

16.2.1.3 It is your responsibility to ensure that you have consent to share any personal data. You can read more about how Akvo Flow handles personal data in the Akvo Flow Privacy policy.

16.2.2 Akvo Caddisfly shall only be used to carry out available tests on the type of water and soil samples the Akvo Caddisfly tests were specifically designed for. The available tests are listed here.

16.2.3 Tests undertaken by using Akvo Caddisfly are screening tests and not a substitute for properly executed laboratory tests. Accordingly, you shall not take any decision on the potability or otherwise of drinking water solely on the basis of using Akvo Caddisfly and Flow. Specific reference is made to Section 7. Limitations of liability in Akvo’s General Terms of Service.

16.2.4 All testing with Akvo Caddisfly shall be in strict accordance with the instruction manual present in the Akvo Caddisfly app and relevant product manuals delivered by relevant hardware and chemical suppliers, including the storage and handling of all ingredients as well as complying with the instructions pertaining to errors, test range, etc. You agree to use any reagents before their expiry dates mentioned on their packaging and acknowledge that in the event the expired reagents are used, the test results would vary.

16.2.5 On all test hardware used with Akvo Caddisfly, the supplier’s warranties and services are applicable. These will be provided in combination with the hardware and/or can be found at the hardware supplier’s website.

16.2.6 All test equipment shipped under the responsibility of the Akvo Foundation to you, for use with Akvo Caddisfly, is insured against damage and theft up to the time of formal handover of ownership to you or another agreed organisation. This is defined within the Agreement.

16.3 Akvo Lumen

16.3.1 Your content

16.3.1.1 By using Akvo Lumen you provide us with data and images that you submit through Akvo Lumen together, “your content”). You retain full ownership of your content. We don’t claim any ownership to any of it. You do agree to share your content which you enter into the Akvo Lumen system through the Akvo Lumen system, for data which you publish publicly, through the Akvo Lumen Services using open license agreements.

16.3.1.2 Where a Partner collects data that is not sensitive or private, we encourage them to open up their data where appropriate, so it can support ‘the common good’.   There is a specific setting in Akvo Lumen that enables you to publicly share your dashboards and visualisations.

16.3.1.3 It is your responsibility to ensure that you have consent to share any personal data. You can read more about how Akvo Lumen handles personal data in the Akvo Lumen Privacy Policy.

16.4 Akvo Sites

16.4.1 Your content

16.4.1.1 By using Akvo Sites you provide us with data and images that you submit through Akvo Sites together, “your content”). You retain full ownership of your content. We don’t claim any ownership to any of it. You do agree to share your content which you enter into the Akvo Sites system through the Akvo Sites system, for data which you publish publicly, through the Akvo Sites Services using open license agreements.

16.4.1.2 Where an organisation creates content that is not sensitive or private, we encourage them to open up their content where appropriate, so it can support ‘the common good’.

16.4.1.3 It is your responsibility to ensure that you have consent to share any personal data. You can read more about how Akvo Flow handles personal data in the Akvo Sites Privacy Policy.

16.5 Akvopedia

16.5.1 Akvopedia’s Additional Terms can be found at: https://akvopedia.org/wiki/Akvopedia:Policies_and_guidelines

16.5.2 Akvopedia’s Privacy policy can be found at: https://akvopedia.org/wiki/Akvopedia:Privacy_policy

16.5.3 Akvopedia’s General disclaimer can be found at: https://akvopedia.org/wiki/Akvopedia:General_disclaimer

16.6 Akvo website https://akvo.org

16.6.1 By using Akvo.org you provide us with data and images that you submit through comments or forms together, “your content”). You do agree to share your content which you enter into Akvo.org through the Akvo.org website, for data which you publish publicly, through the Akvo.org website.

16.6.2 It is your responsibility to ensure that you have consent to share any personal data. You can read more about how the Akvo Foundation handles personal data in the Akvo Foundation General Privacy Policy.

17 Ruling law, mediation and arbitration

17.1 The Agreement shall be governed by and construed in accordance with the substantive and procedural laws of The Netherlands, excluding its choice of law provisions and conflicts of laws principles.  The parties specifically exclude from application to the Agreement that law known as the United Nations Convention on the International Sale of Goods, except that this arbitration clause and any arbitration hereunder shall be governed by the Netherlands Arbitration Institute (NAI) under the NAI Mediation Rules.

17.2 The Akvo SaaS Terms of Service with respect to the subject matter hereof, supersedes the terms of any discussions or any other communications, except for services terms and conditions covered in the Akvo General Terms of Service or a separate confidentiality article in the Agreement covering confidentiality as stated in section 14. If any provision of the Akvo SaaS Terms of Service is held invalid, that provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of the Akvo SaaS Terms of Service shall continue in full force and effect. No term or provision hereof will be considered waived by either Party, and no breach excused, unless such waiver or consent is in writing signed by such Party.  No consent by a Party to, or waiver of, a breach, whether express or implied, will constitute consent to, waiver of, or excuse of any other, different or subsequent breach.

17.3 The parties shall seek amicably to settle any controversy or claim arising out of or relating to the Agreement, or the breach thereof. In the event of any controversy or claim arising out of or relating to the Agreement, or a breach thereof, remains unresolved thirty (30) days after either party gives written notice of the existence of such dispute, the parties hereto agree first to try and settle the dispute by mediation, administered by the Netherlands Arbitration Institute (NAI) under the NAI Mediation Rules.  If settlement is not reached within sixty (60) days after service of a written demand for mediation, any unresolved controversy or claim arising out of or relating to the Agreement shall be settled by arbitration in accordance with the NAI Arbitration Rules of the Netherlands Arbitration Institute. The seat of the arbitration shall be Amsterdam, The Netherlands.

17.4 One (1) arbitrator shall settle the arbitration. The arbitrator shall be appointed by the Netherlands Arbitration Institute within twenty-one (21) days of receipt of the request for arbitration. The arbitrator is authorized to award to the prevailing party, if any, as determined by the arbitrator its costs and expenses, including attorneys’ fees. The arbitrator may not award punitive, exemplary, or consequential damages, nor may the arbitrator apply any multiplier to any award of actual damages, except as may be required by statute. The arbitrator shall have the discretion to hear and determine at any stage of the arbitration any issue asserted by any party to be dispositive of any claim or counterclaim, in whole or part, in accordance with such procedure as the arbitrator may deem appropriate, and the arbitrator may render an award on such issue.

18 About these Terms

18.1 We may modify these terms or any Additional Terms that apply to a SaaS Service to, for example, reflect changes to the law or changes to our SaaS Services. You should look at the terms regularly. We’ll post notice of modifications to these terms, including the Additional Terms, on this page.

18.2 Changes will not apply retrospectively and will become effective no earlier than fourteen days after they are posted. However, changes addressing new functions for a SaaS Service or changes made for legal reasons will be effective immediately. If you do not agree to the modified terms for a SaaS Service, you should discontinue your use of that SaaS Service and let Akvo know in writing as to why use of the SaaS Service will end due to the modified terms.

18.3 If there is any inconsistency between these terms and the Additional Terms, the Additional Terms will prevail to the extent of the inconsistency.

18.4 These terms govern the relationship between the Akvo Foundation and you (or your organisation). They do not create any third party beneficiary rights.

18.5 If you do not comply with these terms and we do not take action immediately, this does not mean that we are giving up any rights that we have (such as taking action in the future).

18.6 If it turns out that a particular term is not enforceable, this will not affect any other terms.

18.7 The courts in some countries will not apply Dutch law to some types of disputes. If you reside in one of these countries, then where Dutch law is excluded from applying, your country’s laws will apply to such disputes related to these terms.

18.8 The Akvo Foundation and you are not legal partners or agents; instead, our relationship is that of independent contractors.

19 Breach of terms and questions

19.1 If you are aware of any breach of these Terms or have any questions with regards to the Terms, please contact us at:

Akvo Foundation

‘s-Gravenhekje 1A,

1011 TG Amsterdam,

The Netherlands.

legal@akvo.org

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