The Distributor, Reseller, Partner and/or Customer (hereinafter referred to as Customer) and Supplier (hereinafter referred to as SAAS service provider) and collectively referred to as "Parties".
WHEREAS:
a. SAAS Service Provider offers a generic SAAS Service called "CyberManager" which Functionality thereof enables the Customer to perform Privacy- Information Security and Cyber Security management;
b. Customer is interested in the Functionality (as defined below) and therefore wishes to purchase the aforementioned SAAS Service;
c. The Customer and the SAAS Service Provider wish to make arrangements in this respect, which are laid down in this Agreement.
ARE AGREED AS INTEGRAL UNDERSTANDING (IRM360 and DISTRIBUTOR/PARTNER/CUSTOMER CONTRACT/OFFERTE) OR DEMO/POC AGREED AS FOLLOWS
Article 1 - Definitions
The Agreement uses a number of terms, in singular or plural, starting with a capital letter and having the meaning of the words as defined in this article in italics.
1.1 Availability: the percentage of the time of the Service Window in which Customer can use the Functionality, falling outside the maintenance window.
1.2 Annex: Annex to Agreement which forms an integral part of the Agreement.
1.3 Documentation: the user manuals to be made available to the Customer by the SAAS Service Provider with regard to the SAAS Service and/or Functionality.
1.4 Functionality: the user functions and possibilities of the computer software underlying the SAAS Service, whether or not divided into partial functionalities and/or modules, as specified in Schedule 1.
1.5 Defect: the failure or incompleteness of Functionality to meet the agreed specifications.
1.6 User: a person to be attributed to Customer who uses the Functionality.
1.7 Maintenance Window: the period of time in which the SAAS Service does not need to be available and that is reserved for maintenance.
1.8 Training: service consisting of providing a form of knowledge transfer, the purpose of which is to familiarise Users with the Functionality to be delivered by SAAS Service Provider and to train them in its use, so that they can work with it adequately for their specific work.
1.9 Agreement: this Agreement (IRM360 offer or Partner Agreement).
1.10 SAAS Service: service consisting of providing Functionality remotely via electronic means by the SAAS Service Provider, the service also includes Support and Documentation.
1.11 Service Window: the period, falling outside the Maintenance Window, during which the SAAS Service must be available.
1.12 Support: the provision of information and advice by the SAAS Service Provider during Working Hours, by telephone and/or e-mail and/or by means of a website or helpdesk, about the use of Functionality, as well as the provision of assistance in tracing causes, including Defects, that impede the unhindered use of Functionality and/or SAAS Service, and in solving these problems.
1.13 Working Days: Monday through Friday, with the exception of national holidays, whereby 5 May is a bank 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 shall endeavor to meet agreed dates, deadlines, and the like as much as possible. However, all dates and deadlines, etc. are indicated to the best of our knowledge, and exceeding these dates and/or deadlines is never fatal.
2.2 If SAAS Service Provider signals that the Customer is not making sufficient efforts, it will inform the Customer thereof in writing.
2.3 In the event the Customer fails to provide information necessary for the performance of the Agreement, including that information which the Customer may suspect is necessary for performance, SAAS Service Provider will not be obliged to perform more than to the best of its ability for the duration of such failure.
2.4 The Customer undertakes to perform the Agreement with the utmost care.
Article 3 - Obligations of the Customer
3.1 The Customer is not allowed to use the SAAS Service in such a way that it may cause damage to the SAAS Service, to SAAS Service Provider and/or to third parties, or that causes a disruption in Availability.
3.2 SAAS Service Provider offers its SAAS Service on the basis of "fair use", i.e. in principle, it does not impose any restrictions on the system and network load caused by the Customer. SAAS Service Provider nevertheless reserves the right to take measures in case of excessive usage, being usage significantly higher than that of the average customer of SAAS Service Provider.
3.3 Customer shall, immediately upon first notification by SAAS Service Provider of the excessive system and/or network load, take measures to put an end to it. SAAS Service Provider shall be entitled to suspend the SAAS Service and/or any other obligation to be performed under the Agreement in case of continuous excessive system and/or network load.
3.4 In the event of a structurally excessive system and/or network load, the Parties will consult on the costs thereof.
3.5 The Customer will ensure careful handling by Users of login details provided by the SAAS Service Provider.
3.6 The Customer shall use (browser) software specified by SAAS Service Provider in Appendix 3 when using the SAAS Service.
3.7 The Customer shall indemnify the SAAS Service Provider against third-party claims based on actions of the Customer that are contrary to Articles 3.1 and 3.5.
3.8 The Customer is responsible for the timely selection and acquisition of (a) a suitable Internet communication facility to actually use the SAAS Service.
3.9 The Customer agrees to enter into an agreement itself with a supplier regarding services referred to in the preceding paragraph and may grant power of attorney to SAAS Service Provider to do so, if and to the extent possible, for or on its behalf. SAAS Service Provider is prepared to assume a coordinating role between Customer and Supplier as necessary for entering into such an agreement regarding a telecommunications facility. The customer acknowledges and agrees to be bound by all terms and conditions of the Supplier itself.
3.10 SAAS Service Provider is not liable for the costs related to the Internet communication facilities referred to in article 3.9, which costs are caused by the use of the SAAS Service.
Article 4 - Intellectual property rights
4.1 SAAS Service Provider guarantees that it holds all rights necessary for the provision of SAAS Service, including all rights relating to the underlying computer software.
4.2 The intellectual property rights, including database rights and/or copyrights, will remain fully vested in SAAS Service Provider or its suppliers. Except for the intellectual property rights to data that the Customer builds up itself through the use of the SAAS Service, the intellectual property rights to such data shall remain vested in the Customer.
Article 5 - SAAS service
5.1 SAAS Service Provider guarantees an Availability of 99.7%. If any non-availability continues for a maximum of four (4) consecutive hours, the SAAS Service will be considered full and uninterrupted.
5.2 SAAS Service Provider will strive to ensure that all activities to be performed in relation to a Customer's request for Support, including handling User queries and resolving Defects, will be commenced without undue delay and completed if possible.
5.3 Defects will only be dealt with if and insofar as they can be demonstrated or reproduced. If and to the extent that the time taken, or suspected to be taken, to resolve a Defect is of such duration that it is suspected that the Availability of the Functionality will be affected, SAAS Service Provider shall endeavor to provide a temporary, adequate solution.
5.4 Defects in Availability caused by:
a. injudicious use by the User;
b. working with equipment and/or (browser) software that does not meet the specifications approved in advance by SAAS Service Provider;
never fall within the scope of the Agreement. Only on the basis of a written order confirmation from the Customer, SAAS Service Provider shall, if possible, remedy said Defects at its then applicable rates.
5.5 SAAS Service Provider may, in the event that Users do not have adequate knowledge of the Functionality and/or the SAAS Service, require the Customer to obtain Training from SAAS Service Provider in order to bring the Users' knowledge to such a level that they will no longer make disproportionate use of Support, or the Users will otherwise acquire required knowledge. SAAS Service Provider will ground the reasonableness of this requirement on the basis of its (Support) history. If the Customer does not comply, SAAS Service Provider shall be entitled to suspend its obligations under Support until the knowledge of Users has been brought to a sufficient level, without the Customer being entitled to a refund of any monies already paid or any damages.
5.6 SAAS Service Provider independently and without consulting the Customer determines the version policy and ensures that whenever and to the extent possible the most recent Functionality is available to the Customer.
5.7 SAAS Service Provider will consult with the Customer prior to the implementation of updates and/or other changes to the Functionality if these are expected to cause a loss of the performance capabilities of the SAAS Service and/or loss of Functionality and/or reduced availability.
5.8 The provisions of article 5.7 do not apply in case the updates concerned have to be applied for security reasons.
Article 6 - Training
6.1 SAAS Service Provider may provide adequate Training to Users and/or other Customer personnel for the purpose of using the Functionality.
6.2 SAAS Service Provider guarantees that the instructors have sufficient knowledge of the subject matter and have sufficient skills to properly deliver the Training.
6.3 SAAS Service Provider shall provide each Course, participant, with adequate course materials for their own use. The copyright in the Course Materials shall be vested in SAAS Service Provider. The Customer is not permitted to reproduce and/or disclose the course material unless it is for its own use.
6.4 Cancellation and/or relocation of the Course(s) by the Customer can only be done 10 Business Days before the scheduled date of Training. Cancellation of the Course(s) after this period shall entail that the agreed costs for this Course(s) shall be payable in full by the Customer.
Article 7 - Prices, rates, invoicing, and payment
7.1 Prices and rates are set out in Schedule 4. All prices and rates are exclusive of sales tax (VAT).
7.2 A surcharge may be charged for Support outside Working Hours, if and to the extent specified in Schedule 4.
7.3 SAAS Service Provider shall state on the invoices to Customer the date, period of service, the scope thereof, and the total amount due in euros.
7.4 The fee for the SAAS service will be invoiced per year or monthly in advance.
7.5 Other services and work not covered by the Agreement shall be at the then-current rates for the relevant employees of SAAS Service Provider. In that case, invoicing shall take place in arrears on the basis of the number of hours actually spent, unless expressly agreed otherwise.
7.6 Functionality added to the Agreement in the interim will be invoiced pro rata until the next invoice date.
7.6 The Customer shall pay the amounts due by it under the Agreement to SAAS Service Provider within thirty (30) days after the invoice date if the invoice(s) are correct in substance.
7.8 If the Customer relies on the substantive inaccuracy of the invoice(s), this shall not affect its obligation to pay at least the undisputed part of the invoice(s) and this shall not affect SAAS Service Provider's obligation to continue providing the Services.
7.9 If the Customer has not paid the invoice amounts due within the payment period, except if it has invoked substantive inaccuracy of the invoice within ten (10) days, the Customer shall owe statutory interest on the outstanding amount without any notice of default being required. If the Customer fails to pay the claim after notice of default, SAAS Service Provider will be entitled to claim compensation for extrajudicial collection costs in addition to the statutory interest due, the amount of which will be determined at least 15% of the total invoice amount.
7.10 If the Customer is a Distributor, Reseller, or Partner, and is more than four (4) months in arrears with payments, SAAS Service Provider shall be entitled to suspend its services, provided that the Customer has been notified in writing of such intention and the Customer has been granted at least five (10) Business Days to still comply fully with all payment obligations, i.e. including statutory interest, extrajudicial and other costs.
Article 8 - Duration, termination, extension, and exit
8.1 The Agreement shall enter into force when both Parties have signed it.
8.2 The Agreement entered into for the course of one (1) year unless otherwise agreed.
8.3 The Agreement is tacitly renewed each time for one (1) year if neither Party has canceled the Agreement by registered letter with acknowledgment of receipt to the other Party no later than six (6) months before the expiry date.
8.4 Apart from what is provided elsewhere in the Agreement:
a. one Party is entitled to dissolve the Agreement after 1 month by means of a registered letter with acknowledgment of receipt if the other Party fails to fulfill its obligations arising from the Agreement and persists in doing so even after notice of default, in which the other Party has been given a reasonable term to still fulfill its obligations.
b. one Party is entitled to dissolve the Agreement with immediate effect after notice of default with a reasonable term out of court by means of a registered letter with acknowledgment of receipt if the other Party applies for a moratorium or is granted a moratorium; the other Party's bankruptcy is applied for or is declared bankrupt; a significant part of the other Party's assets or the infrastructure and/or computer software involved in the performance of the Agreement is seized, or the other Party must be deemed no longer able to fulfill its obligations under the Agreement.
8.5 If the Agreement is terminated by the Customer on the basis of the provisions in article 8.4, the Customer shall, upon the first request, be entitled to continue using the Functionality for a period of two (2) consecutive months, all this against a reasonable fee to be determined by SAAS Service Provider and to be paid in advance by the Customer.
8.6 All rights acquired by the Customer under the Agreement with regard to the use of Functionality will lapse upon termination of the Agreement, with the exception of the provisions of article 8.5.
8.7 Unless otherwise provided, obligations that by their nature are intended to continue after termination of the Agreement shall continue to exist after termination thereof. The termination of the Agreement expressly does not release the Parties from the provisions relating to confidentiality, liability, intellectual property rights, personnel takeover, applicable law, and choice of forum.
8.8 In the event of termination of the SAAS Service(s), the parties will immediately enter into consultations about the (manner of) transfer of data, the services, and/or other management measures required for the uninterrupted continuation of the Customer's use of its data and/or SAAS Service(s).
8.9 All work performed by SAAS Service Provider under the preceding paragraph shall be charged on the basis of subsequent calculations at the then-current rates.
Article 9 - Guarantees
9.1 SAAS Service Provider guarantees that the services regarding the SAAS Service will be performed in a competent manner.
9.2 SAAS Service Provider guarantees Availability in accordance with the Agreement up to and including its infrastructure. SAAS Service Provider is not responsible for the Internet communication connections from its infrastructure, including the Customer's Internet communication connections as referred to in Articles 3.8 and 3.9.
Article 10 - Liability
10.1 The Party that imputably fails in the performance of its obligation(s) is, subject to the limitations in this article, liable to the other Party for compensation of the damage suffered or to be suffered by the other Party.
10.2 The SAAS Service Provider shall be liable for attributable failures in the performance of the Agreement.
10.3 If and to the extent that the limitation of the foregoing paragraph is not possible in law, the total liability of SAAS Service Provider for attributable failure in the performance of the Agreement shall be limited to compensation for direct financial loss up to a maximum of the fees received by SAAS Service Provider from the Customer (exclusive of VAT and other government levies) for six (6) months immediately preceding the month in which the harmful event occurred. Direct pecuniary loss shall mean exclusively:
a. reasonable costs that the Customer would have to incur to have SAAS Service Provider's performance comply with the Agreement; however, such costs shall not be reimbursed if the Agreement has been or is rescinded by or at the request of the Customer.
b. reasonable costs incurred by the Customer in keeping its old system(s) and related facilities operational for longer than necessary;
c. reasonable costs incurred to determine the cause and extent of the damage, insofar as the determination relates to direct financial loss within the meaning of these Terms and Conditions;
d. reasonable costs incurred to prevent or limit damage, insofar as the Customer demonstrates that these costs have led to a limitation of direct damage within the meaning of these Terms and Conditions.
10.4 Liability for damage other than mentioned in the preceding paragraph is excluded.
10.5 The limitations of liability referred to above will lapse
a. in the case of claims for damages resulting from the death or bodily injury;
b. in case of intent or gross negligence on the part of the Party causing the damage, including its employees and third parties engaged.
10.6 The liability of a Party for failure to perform the Agreement shall arise only after the Party in default has been given notice of default by the other Party, unless performance of the obligations in question is already permanently impossible, in which case the Party in default shall be immediately in default. The notice of default shall be in writing, granting the defaulting Party a reasonable period of time to still fulfill its obligations.
Article 11 - Force majeure
11.1 In the event of force majeure within the meaning of the law, the performance of the Agreement and all related obligation(s) shall be suspended in full or in part for the duration of the force majeure situation, without the parties being mutually obliged to pay any compensation in this respect. A Party may only invoke force majeure vis-à-vis the other Party if the Party invoking force majeure notifies the other Party in writing of its invocation of force majeure as soon as possible, submitting documentary evidence.
11.2 If a Party fails to comply with any obligation ensuing from the Agreement due to force majeure, the other Party may, if it is established that compliance will be permanently impossible, or if a period of more than thirty (30) Working Days has lapsed, dissolve the Agreement in whole or in part out of court with immediate effect by means of a registered letter with acknowledgment of receipt, without the Parties being mutually obliged to pay any compensation. That which has already been performed by SAAS Service Provider shall be paid by the Customer immediately.
11.3 Force majeure on the part of the SAAS Service Provider will in any case include illness of staff, lack of staff, strikes, shortcomings of suppliers, whether or not attributable, loss of data, power failures, and/or failure of network connections all on the part of SAAS Service Provider.
Article 12 - Confidentiality and security
12.1 Both Parties will observe strict confidentiality regarding the information about each other's organization, the operation of the files, Functionality, the SAAS Service, etc. Subject to prior written consent of the other Party, a Party shall not make information, data carriers, and data available to it available to third parties and shall only disclose it to its personnel to the extent necessary for the performance of the agreed services. Parties shall oblige their personnel to observe these confidentiality provisions.
12.2 The Customer may not disclose the SAAS Service or copy and/or otherwise reproduce or modify it, except to the extent necessary for the use expressly permitted under this Agreement.
12.3 With regard to data originating from the other Party, which is held by or provided to a Party in any form or on any data carrier, a Party undertakes:
a. observe all reasonable measures for its safe disposal or storage;
b. not to use the data for any purpose other than the agreed purpose;
c. not to keep the data in its possession any longer than is reasonably necessary for the fulfillment of the agreed obligations and to make these data, including any copies, made, available to the other Party again immediately after full compliance with said obligations, or to destroy them after obtaining permission from the other Party;
d. to have the agreed obligations performed only by persons whom the Party on whom the obligation rests reasonably believes to be reliable;
e. cooperate in the exercise of supervision by or on behalf of the other Party over the custody and use of data.
12.4 Each of the Parties will ensure that its employees and/or third parties involved in the work will be contractually obliged to maintain confidentiality with regard to the provisions of this article.
Article 13 - Transfer of rights and obligations
13.1 The Customer shall not be entitled to transfer the rights and obligations under the Agreement to a third party without SAAS Service Provider's written consent.
13.2 SAAS Service Provider shall at all times be entitled to transfer rights and obligations under the Agreement unless otherwise agreed.
13.3 SAAS Service Provider and Customer are authorized to use the services of third parties in the performance of the Agreement, either by subcontracting or by temporary hiring of staff. This authority of SAAS Service Provider and Customer shall not affect its responsibility and liability for the fulfillment of its obligations under the Agreement and its obligations as an employer and/or main contractor under tax and social insurance legislation.
Article 14 - Applicable law and disputes
14.1 The Agreement and further agreements resulting from it shall be governed by Dutch law.
14.2 In the event of a dispute, the most diligent Party shall notify the other Party in writing of the existence of a dispute, together with a summary statement of what that Party considers to be the subject of the dispute. All disputes arising as a result of or as a consequence of the Agreement will first be submitted to the management of the SAAS Service Provider and the management of the Customer. If they do not reach a solution within 2 months after the dispute has been reported, disputes will be submitted to the competent court in the district where the SAAS Service Provider has its registered office, including the interim injunction court of this district court.
14.3 The provisions of articles 14.2 shall not affect the obligation of both Parties to make every effort to resolve disputes relating to the Agreement in mutual consultation as much as possible.
Article 15 - General provisions
15.1 In case of violation of articles 3.1, 3.5, 8.7, 12, and 15.7, the Customer will immediately and without judicial intervention owe SAAS Service Provider a penalty of €10,000 (ten thousand euros) excluding VAT. This penalty shall not prevent SAAS Service Provider from claiming additional compensation(s).
15.2 Oral communications, undertakings, or agreements relating to the performance of the Agreement shall have no legal force unless confirmed in writing by the relevant Party.
15.3 In the cases not provided for in the Agreement, or if amendments to the Agreement are necessary, the Parties shall consult each other to this end. Amendments and/or supplements shall only be valid to the extent agreed in writing.
15.4 The failure by a Party to demand performance of any provision within a term specified in the Agreement shall not affect the right to still demand performance unless that Party has expressly agreed in writing to the non-performance.
15.5 If it is stated in these terms and conditions that notice may be given in writing, such notice may, unless it is evident from the context that actual writing is intended, also be given digitally, i.e. by e-mail. However, the Party that chooses to use an electronic medium shall bear the evidentiary risk if, in the opinion of the other Party, a notice would not have arrived or would not have arrived properly.
15.6 If one of the provisions of the Agreement is null and void or annulled, the remaining provisions of the Agreement shall remain in force and the Parties shall consult to agree on a replacement provision.
15.7 If and to the extent that there are contradictions between the Agreement and the Annexes to this Agreement, the provisions of the Agreement shall prevail.
15.8 The general terms and conditions of SAAS Service Provider apply to this Agreement and therefore form an integral part of the Agreement.
Article 16 - Demo/POC conditions
If the license is granted as a demo or Proof of Concept (POC), then all articles set forth herein shall apply with the exception of articles 5, 6, 7, 8, and 9. Furthermore, no rights can be derived or guaranteed given about availability, uptime, content, and SAAS service of Demo/POC environments.
Annex 1 - General terms and conditions
The IRM360 B.V. general terms and conditions can be found on our website: (https://www.irm360.nl/en/general-terms-and-conditions/)
Appendix 2 - Functionality specifications
For a description of the functionality in combination with the CyberManager subscription taken, please refer to the website (https://www.irm360.nl/abonnementen-prijzen/cybermanager-isms-pims-csms-bcms/)
Appendix 3 - Browser support
The following browsers are supported:
Desktop
Microsoft Internet Explorer (Windows) Version 11
Microsoft Edge Latest two versions
Mozilla Firefox (all platforms) Last two versions
Google Chrome (Windows and Mac) Last two versions
Safari (Mac) Latest two versions
Appendix 4 - Prices and support
For current prices, please refer to the website: (https://www.irm360.nl/en/subscription-types-pricing/)