The Distributor, Reseller, Partner and/or Customer (hereafter referred to as the buyer) and Supplier (hereafter referred to as the SAAS service provider), jointly referred to as the ‘Parties’.
WHEREAS:
a. The SAAS service provider offers a generic SAAS service called IRM360 (CyberManager), the functionality of which enables the Client to perform Privacy, Information Security and Cybersecurity Management;
b. The Client is interested in the Functionality (as defined below) and therefore wishes to purchase the aforementioned SAAS service;
c. The Client and SAAS service provider wish to make agreements about this, which are laid down in this Agreement.
ARE AS AN INTEGRAL PART OF THE SIGNED (IRM360 BV AND DISTRIBUTOR/PARTNER/CUSTOMER CONTRACT/OFFER) OR DEMO/POC AGREEMENT AS FOLLOWS
Article 1 - Definitions
The Agreement uses a number of terms, in singular or plural, that begin with a capital letter and that have the meaning of the words defined in italics in this article.
1.1 Availability: the percentage of the time of the Service Window in which the Client can use the Functionality, falling outside the maintenance window.
1.2 Appendix:This SaaS agreement is an integral part of a concluded Agreement (signed quotation or purchase).
1.3 Documentation: the user manuals relating to the SaaS service and/or Functionality to be made available to the Buyer by the SaaS service provider.
1.4 Functionality: the functions and capabilities of the computer software that underlies the SAAS service, whether or not subdivided into subfunctions and/or modules, as specified in Appendix 1.
1.5 Shortcoming: the failure to meet the agreed specifications, or failure to meet them in full.
1.6 User: a person attributable to the Buyer who uses the Functionality.
1.7 Maintenance Window: the period in which the SAAS service does not have to be available and which is reserved for maintenance.
1.8 Training: a service that consists of providing a form of knowledge transfer with the aim of familiarising Users with the Functionality to be provided by the SAAS service provider and training them in its use, so that they can work adequately for the benefit of their specific activities.
1.9 Agreement: the present agreement (IRM360 CyberManager offer or Partner Agreement)
1.10 SAAS service: a service that consists of the remote provision of functionality by electronic means by the SAAS service provider, including support and documentation.
1.11 Service Window: the period, outside the Maintenance Window, in which the SAAS service must be available.
1.12 Support: the provision of information and advice during Working Hours by the SAAS service provider by telephone and/or email and/or via a website or helpdesk regarding the use of the Functionality, as well as the provision of assistance in tracing causes, including Defects, that impede the unhindered use of the Functionality and/or the SAAS service and the solving of these problems.
1.13 Working days: Monday to Friday, with the exception of national holidays, whereby 5 May is a national holiday once every five (5) years.
1.14 Working hours: hours on working days between 09:00 and 17:00.
Article 2 - Cooperation
2.1 SAAS service provider will adhere to the agreed dates, deadlines, etc.
2.2 If SAAS service provider finds that the Client has insufficient commitment, it will inform the Client in writing.
2.3 If the Client fails to provide information that is necessary for the execution of the Agreement, including information that the Client may suspect is necessary for the execution, the SAAS service provider is not obliged to make any greater efforts than expected for the duration of this negligence.
2.4 The Buyer undertakes to fulfil the Agreement with the greatest possible care.
Article 3 - Obligations of the Buyer
3.1 The Buyer is not permitted to use the SAAS service in such a way that it could cause damage to the SAAS service, the SAAS service provider and/or third parties.
3.2 The SAAS service provider offers its SAAS service on the basis of ‘fair use’, which means that in principle it does not impose any restrictions on the system and network load caused by the Client. However, the SAAS service provider reserves the right to take measures in the event of excessive use, i.e. use that is considerably higher than that of the average customer of the SAAS service provider.
3.3 The customer must take measures to put an end to excessive system and/or network load immediately after the first notification by the SAAS service provider. The SAAS service provider is entitled to suspend the SAAS service and/or any other obligation under the Agreement in the event of a persistent excessive system and/or network load.
3.4 In the event of a structurally excessive system and/or network load, the Parties shall consult with each other about the associated costs.
3.5 The Client shall ensure that Users handle the login details provided by the SAAS service provider with care.
3.6 When using the SAAS service, the Client must use the (browser) software specified by the SAAS service provider in Appendix 3.
3.7 The Customer shall indemnify SAAS Service Provider against third party claims based on actions of the Customer in violation of Articles 3.1 and 3.5, where the Customer is demonstrably at fault due to negligent actions. This indemnification does not arise if the damage is the result of an (unintentional) disruption by the SAAS Service Provider or other damage caused by the SAAS Service Provider or third parties.
3.8 The Client is responsible for the timely selection and purchase of suitable internet communication facilities in order to be able to make effective use of the SAAS service.
3.9 The Client agrees to enter into an agreement with a supplier regarding the services referred to in the previous paragraph and may authorise the SAAS service provider to do so, if and insofar as possible, for or on his behalf. The SAAS service provider is prepared, if necessary, to assume a coordinating role between the Client and the supplier with a view to entering into such an agreement regarding a telecommunications facility. The Client acknowledges and agrees to be bound by all of the supplier's general terms and conditions in this regard.
3.10 The SAAS service provider is not liable for the costs related to the internet communication facilities as referred to in Article 3.9, which costs are caused by the use of the SAAS service.
Article 4 - Intellectual property rights
4.1 The SAAS service provider guarantees that it has all the rights necessary to provide the SAAS service, including all rights relating to the underlying computer software.
4.2 The intellectual property rights, including database rights and/or copyrights, shall remain fully vested in the SAAS service provider or its suppliers. With the exception of the intellectual property rights to data that the Client builds up itself through the use of the SAAS service, the intellectual property rights to this data shall remain vested in the Client.
Article 5 - SAAS service
5.1 The SAAS service provider guarantees 99.7% availability. If unavailability lasts for a maximum of four (4) consecutive hours, the SAAS service is considered fully available and uninterrupted.
5.2 The SAAS service provider will endeavour to ensure that all activities that must be carried out in connection with a Customer Support request, including handling questions from Users and resolving Defects, are started without unnecessary delay and completed as quickly as possible.
5.3 A Defect will only be dealt with if and insofar as this Defect is demonstrable or reproducible. If and insofar as the time needed to resolve a Defect, or the expected time needed, is of such duration that there is a suspicion that the Availability of the Functionality is affected, the SAAS service provider will attempt to offer a temporary, adequate solution.
5.4 Deficiencies in Availability caused by:
a. improper use by the User;
b. working with equipment and/or (browser) software that does not meet the specifications approved in advance by the SAAS service provider;
never fall within the scope of the Agreement. Only on the basis of a written order confirmation from the Buyer will the SAAS service provider repair any such Defects, if possible, at its then applicable rates.
Unavailable is defined as: An (unplanned) period in which users are unable to read or write in any part of the CyberManager, if they have access rights to do so.
5.5 The SAAS service provider may, in the event that Users do not have sufficient knowledge of the Functionality and/or the SAAS service, require the Client to purchase Training from the SAAS service provider to increase the level of knowledge of the Users to such a degree that they no longer make disproportionate use of Support, or that the Users acquire the knowledge they require in another manner. The SAAS service provider will justify the reasonableness of this requirement based on its (Support) history. If the Client does not fulfil this requirement, the SAAS service provider has the right to suspend its obligations in the context of Support until the knowledge of Users has been raised to a sufficient level, without the Client being entitled to a refund of monies already paid or any compensation.
5.6 The SAAS service provider determines the version policy independently and without consultation with the Client and ensures that the most recent Functionality is available to the Client, insofar as this is possible.
5.7 Prior to the implementation of updates and/or other changes to the Functionality, the SAAS service provider will consult with the Client if these are expected to lead to a loss of the performance capabilities of the SAAS service and/or a loss of Functionality and/or a reduced Availability.
5.8 The Buyer acknowledges that receiving onboarding emails, which are important for the correct implementation and optimal functioning of the SaaS service, is an integral part of the contractual implementation of this Agreement. With due observance of the other provisions in this Agreement, the Buyer hereby grants permission for the sending of such e-mails in order to guarantee the continuity and effectiveness of the service.
5.9 The provisions of Article 5.7 do not apply if the updates in question must be applied for security reasons.
Article 6 - Training
6.1 The SAAS service provider can provide Users and/or other personnel of the Client with adequate training for the use of the Functionality.
6.2 The SAAS service provider guarantees that the teachers have sufficient knowledge of the subject and sufficient skills to provide the Training adequately.
6.3 The SAAS service provider will provide each student with adequate course material for their own use. The copyright to the course material rests with the SAAS service provider. The Client is not permitted to reproduce and/or publish the course material, unless it is for their own use.
6.4 The Client may only cancel and/or reschedule the Course(s) 10 Working Days before the scheduled date of the Course. If the Client cancels the Course(s) after this period, the Client shall be liable for the full agreed costs of the Course(s).
Article 7 - Prices, rates, invoicing and payment
7.1 Prices and rates are listed in Appendix 4. All prices and rates are exclusive of value-added tax (VAT).
7.2 A surcharge may be applied for Support outside Working Hours if and insofar as specified in Appendix 4.
7.3 The SAAS service provider shall state on the invoices to the Client the date, the service period, the scope of the service and the total amount due in euros, and shall ensure that the invoice complies with the legal requirements.
7.4 The fee for the SAAS service shall be invoiced annually or monthly in advance.
7.5 Other services and activities not covered by the Agreement will be charged at the rates applicable at that time for the relevant employees of the SAAS service provider. In that case, invoicing will take place in arrears based on the number of hours actually worked, unless explicitly stipulated otherwise.
7.6 Invoicing for functionality added to the Agreement during its term shall be done pro rata up to the next invoice date.
7.7 The Client must pay the SAAS service provider the amounts owed by the Client under the Agreement within thirty (30) days of the invoice date, provided that the invoice is factually correct.
7.8 If the Client claims that the invoice(s) is/are factually incorrect, this does not affect its obligation to pay at least the undisputed part of the invoice(s). Nor does this affect the fact that the SAAS service provider remains obliged to continue providing the service.
7. 9 If the Client has not paid the invoice amounts due within the payment term, except if the Client has invoked the substantive inaccuracy of the invoice within ten (10) working days, the Client shall owe statutory interest on the outstanding amount after having been given notice of default and having had a reasonable period of time to fulfil its obligations. If the Client remains in default of payment after having been given notice of default, the SAAS service provider is entitled to claim compensation for extrajudicial collection costs in addition to the statutory interest owed.
7.10 If the Client is a Distributor, Reseller or Partner and the payment arrears amount to more than four (4) months, the SAAS service provider is entitled to suspend its services if it has given the Client notice of default, provided that the Client has been notified of this intention in writing and the Client has been granted at least ten (10) Working Days to still fully comply with all payment obligations, including statutory interest, extrajudicial and other costs.
Article 8 - Term, termination, extension and exit
8.1 The Agreement shall enter into force upon signature.
8.2 The Agreement shall be automatically and tacitly renewed for a period of one year. For a valid termination of the agreement, cancellation must be completed at least one month before the end of the current contract year. In the case of a multi-year agreement, it must be cancelled at least one month before the end of the multi-year agreement. After tacit renewal of a multi-year agreement, it is automatically and also tacitly renewed for a period of one year.
If your annual or multi-year subscription has an end date of 31 December of any year, it is necessary that the cancellation is submitted no later than 30 November of that same year. Cancellations will only be processed if submitted by email to sales@irm360.nl .
8.3 In addition to what is stipulated elsewhere in the Agreement, the following applies:
a. After a notice of default has been issued with a reasonable term, a Party is entitled to dissolve the Agreement with immediate effect extrajudicially by means of a registered letter with confirmation of receipt if the other Party applies for a moratorium on payments or has been granted a moratorium on payments; the other Party files for bankruptcy or is declared bankrupt; the other Party's company is liquidated or terminated other than for the purposes of a company merger; a substantial part of the other Party's assets or the infrastructure and/or computer software involved in the execution of the Agreement is seized, or the other Party can no longer be expected to fulfil the obligations arising from the Agreement.
8.4 If the Buyer terminates the Agreement on the grounds of the provisions of Article 8. 2, the Buyer has the right, upon first request, to continue using the Functionality for a period of one (1) month, or for as long as is necessary for the implementation of the exit plan, all this for a reasonable fee to be determined by the SAAS service provider, which fee must be paid in advance by the Buyer.
8.5 Upon termination of the Agreement, all rights obtained by the Buyer under the Agreement with regard to the use of Functionality shall expire, with the exception of the provisions of Article 8.4.
8.6 Unless otherwise stipulated, obligations that by their nature are intended to continue after termination of the Agreement shall remain in force after termination. Termination of the Agreement does not explicitly release the Parties from the provisions regarding confidentiality, liability, intellectual property rights, transfer of personnel, applicable law and choice of forum.
8.7 In the event of termination of the SAAS service(s), the Parties shall immediately enter into consultation regarding the (manner of) data transfer, the delivery of services and/or other management measures necessary for the uninterrupted continuation of the use by the Client of his data and/or SAAS service(s).
8.8 All activities performed by the SAAS service provider in the context of the previous paragraph will be charged based on subsequent calculation at the rates applicable at that time.
Article 9 - Guarantees
9.1 The SAAS service provider guarantees that the services relating to the SAAS service will be performed in a professional manner.
9.2 The SAAS service provider guarantees the availability of its infrastructure in accordance with the Agreement. The SAAS service provider is not responsible for the internet communication connections of its infrastructure, including the internet communication connections of the Client as referred to in Articles 3.8 and 3.9.
Article 10 Liability
10.1 Subject to the limitations in this article, the SaaS supplier is liable for compensation for the damage suffered or to be suffered by the buyer as a result of an attributable failure to fulfill its obligations under the Agreement.
10.2 If and insofar as the limitation in the previous paragraph is not legally enforceable, the total liability of the SAAS service provider due to an attributable failure to fulfill the Agreement is limited to compensation for direct financial loss, with a maximum of the compensation received by the SAAS service provider from the Buyer (excluding VAT and other government-imposed levies) over a period of six (6) months prior to the month in which the event causing the damage occurred.
Direct financial loss is exclusively understood to mean:
a. reasonable costs that the Client has had to incur to bring the performance of the SAAS service provider into line with the Agreement;
b. reasonable costs that the Client has incurred for the forced continued operation of its old system or systems and the associated facilities;
c. reasonable costs incurred to determine the cause and extent of the damage, insofar as this determination relates to direct financial loss as defined in this article;
d. reasonable costs to prevent or limit damage, insofar as the Customer demonstrates that these costs have contributed to the limitation of direct financial loss as referred to in this article.
10.3 Any liability of the SAAS service provider for damages not covered by the previous paragraph is excluded.
10.4 The limitations of liability included in this article do not apply:
a. in the case of compensation for death or physical injury resulting from an act or omission of the SAAS service provider;
b. in the event of intent or deliberate recklessness on the part of the SAAS service provider, including its employees and third parties engaged.
10.5 The SAAS service provider shall only be liable for a failure to fulfill the Agreement after it has been given written notice of default by the Client and has been granted a reasonable period of time to fulfill its obligations, unless fulfillment is permanently impossible. In that case, the SAAS service provider shall immediately be in default.”
Article 11 Force majeure
11.1 In the event of force majeure as defined by law, the fulfilment of the Agreement and all related obligations shall be suspended in whole or in part for the duration of the force majeure situation, without either party being liable to pay any compensation to the other party. A Party may only invoke force majeure vis-à-vis the other Party if the Party invoking force majeure informs the other Party in writing as soon as possible, submitting documentary evidence.
11.2 If a Party fails to fulfil any obligation arising from the Agreement due to force majeure, the other Party may, if it is certain that fulfilment will be permanently impossible, or if a period of more than thirty (30) Working Days has elapsed, dissolve the Agreement in whole or in part, by means of a registered letter with confirmation of receipt, terminate the Agreement with immediate effect out of court, without the Parties being mutually obliged to pay any compensation. The Customer shall pay the SAAS service provider for services already rendered.
Article 12 - Confidentiality and security
12.1 Both Parties shall observe strict confidentiality regarding information about each other's organisation, the operation of the files, functionality, the SAAS service, etc. Except with the prior written consent of the other Party, a Party shall not make information, data carriers and data available to third parties and shall only disclose it to its personnel insofar as this is necessary for the performance of the agreed services. The Parties shall oblige their personnel to comply with these confidentiality provisions.
12.2 The Client may not disclose the SAAS service or copy and/or otherwise reproduce or modify it, except insofar as this is necessary for the use that is expressly permitted under this agreement.
12.3 With regard to data originating from the other Party, which is in the possession of a Party or has been provided to it in any form or on any data carrier, a Party undertakes:
a. to take all reasonable measures for its safe storage or archiving;
b. not to use the data for any purpose other than the agreed purpose;
c. not to retain the data in its possession any longer than is reasonably necessary for the fulfilment of the agreed obligations and to make these data, including any copies made, available to the other Party immediately after the aforementioned obligations have been fully met, or to destroy them after obtaining permission from the other Party;
d. to have the agreed obligations performed exclusively by persons whom the Party subject to the obligation reasonably believes to be reliable;
e. to cooperate with the supervision by or on behalf of the other Party of the storage and use of data.
12.4 Each of the Parties shall ensure that its employees and/or third parties involved in the work are contractually obliged to observe confidentiality with regard to the provisions of this article.
Article 13 - Transfer of rights and obligations
13.1 The buyer is not entitled to transfer the rights and obligations arising from the Agreement to a third party without written permission from the SAAS service provider.
13.2 The SAAS service provider is authorised at all times to transfer rights and obligations arising from the Agreement unless otherwise agreed.
13.3 The SAAS service provider and the Client are authorised to make use of the services of third parties in the execution of the Agreement, either by subcontracting or by temporarily hiring in personnel. This authorisation of the SAAS service provider and the Buyer does not affect its responsibility and liability for the fulfilment of its obligations under the Agreement and its obligations as an employer and/or main contractor under tax and social security legislation.
Article 14 - Applicable law and disputes
14.1 The Agreement and any further agreements arising from it are governed by Dutch law.
14.2 In the event of a dispute, it will be settled in accordance with Article 21.2 of the General Terms and Conditions.
14.3 The provisions of Article 14.2 are without prejudice to the obligation of both Parties to make every effort to resolve disputes related to the Agreement as much as possible in mutual consultation.
Article 15 - General provisions
15.1 Verbal communications, promises or agreements related to the execution of the Agreement have no legal force unless they have been confirmed in writing by the Party concerned.
15.2 In cases not provided for in the Agreement, or if an amendment to the Agreement is necessary, the Parties shall consult with each other. Amendments and/or additions are only valid insofar as they have been agreed upon in writing.
15.3 Failure by a Party to demand compliance with any provision within a period specified in the Agreement does not affect the right to demand compliance at a later date, unless this Party has explicitly agreed to the non-compliance in writing.
15.4 If these terms and conditions state that a notification can be made in writing, then such notification can also be made digitally, i.e. by e-mail, unless the context clearly indicates that written notification was intended. However, the Party that chooses to use an electronic medium bears the risk of proof if a notification is not received or not received correctly according to the other Party.
15.5 If one of the provisions of the Agreement is null and void or is nullified, the other provisions of the Agreement will remain in force and the Parties will enter into consultation to agree on a replacement provision.
15.6 If and insofar as contradictions arise between the Agreement and the Annexes belonging to this Agreement, the provisions of the Agreement shall apply.
15.7 The general terms and conditions of the SAAS service provider apply to this Agreement and therefore form an integral part of the Agreement.
Article 16 - Demo/POC conditions
If the licence has been provided as a demo or Proof of Concept (POC), all articles set out above shall apply, with the exception of articles 5, 6, 7, 8 and 9. Furthermore, no rights can be derived and no guarantees can be provided regarding the availability, uptime, content and SAAS service of Demo/POC environments.
Appendices
Appendix 1: General terms and conditions
The general terms and conditions of IRM360 BV can be found on our website https://www.irm360.eu/general conditions/)
Appendix 2: Delivery
Delivery takes place on the basis of our general data processing agreement. This can be found here .
Appendix 3: Functionality specifications
For a description of the functionality in combination with the purchased IRM360 CyberManager subscription, please refer to the website https://www.irm360.eu/.
Appendix 4: Browser support
The following browsers are supported:
Desktop
Microsoft Internet Explorer (Windows) version 11
Microsoft Edge Last two versions
Mozilla Firefox (all platforms) Last two versions
Google Chrome (Windows and Mac) Last two versions
Safari (Mac) Last two versions
Appendix 5: Prices and support
For current prices, please refer to the website https://www.irm360.eu/subscription-types-pricing/
Appendix 6: Cancelling your subscription
More information about cancelling can be found here .
(IRM360 BV 14-02-2025)