The Distributor, Reseller, Partner and/or Customer (hereinafter referred to as the buyer) and Supplier (hereinafter referred to as the SAAS service provider) and jointly referred to as the ‘Parties’.
WHEREAS:
a. SAAS service provider offers a generic SAAS service called IRM360 (CyberManager) whose Functionality enables the Client to carry out Privacy, Information Security and Cyber Security 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 in this regard, which are set out in this Agreement.
HAVE AGREED AS AN INTEGRAL PART OF THE SIGNED (IRM360 B.V. 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 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 Customer can use the Functionality, falling outside the maintenance window.
1.2 Appendix: appendix to the Agreement that forms an integral part of the Agreement.
1.3 Documentation: the user manuals relating to the SAAS service and/or Functionality to be made available to the Customer by the SAAS service provider.
1.4 Functionality: the functions and capabilities of the computer software underlying the SAAS service, whether or not subdivided into subfunctions and/or modules, as specified in Appendix 1.
1.5 Defect: the Functionality not meeting, or not fully meeting, the agreed specifications.
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: service consisting 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 P/ISMS CyberManager quotation or Partner Agreement)
1.10 SAAS service: a service consisting 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 by means of a website or helpdesk, providing information and advice about the use of Functionality, as well as providing assistance in tracing the causes, including Defects, that impede the unhindered use of Functionality and/or the SAAS service, and solving these problems.
1.13 Working days: Monday to Friday, with the exception of public holidays, whereby 5 May is a public 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 endeavour to meet agreed dates, deadlines, etc. as much as possible. However, all dates and deadlines, etc. have been indicated to the best of their knowledge and exceeding these dates and/or deadlines is never fatal.
2.2 If the SAAS service provider notices that the Client is not sufficiently committed, it will inform the Client of this in writing.
2.3 In the event that the Client fails to provide information that is necessary for the execution of the Agreement, including information that the Client may presume to be necessary for the execution, the SAAS service provider shall not be obliged to perform beyond their best efforts for the duration of this negligence.
2.4 The Buyer undertakes to observe the greatest possible care in the execution of the Agreement.
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, to the SAAS service provider and/or to third parties, or that could cause a disruption in the Availability.
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 Customer. However, the SAAS service provider reserves the right to take measures in the event of excessive use, i.e. use that is significantly 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 first being notified by the SAAS service provider. The SAAS service provider is entitled to suspend the SAAS service and/or any other obligation to be performed under the Agreement in the event of a continuous 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 costs involved.
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 shall use the (browser) software specified by the SAAS service provider in Appendix 3.
3.7 The Client indemnifies the SAAS service provider against claims from third parties on the basis of actions by the Client that are in violation of articles 3.1 and 3.5.
3.8 The Client is responsible for the timely selection and acquisition of suitable Internet communication facilities in order to actually be able to use 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 its behalf. The SAAS service provider is prepared to assume a coordinating role between the Client and the supplier, if necessary, with a view to entering into such an agreement regarding a telecommunications facility. The Client acknowledges and agrees to be bound by all the supplier's terms and conditions in this regard.
3.10 The SAAS service provider is not liable for the costs relating 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 required 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 Customer builds up itself through the use of the SAAS service, the intellectual property rights to this data shall remain vested in the Customer.
Article 5 - SAAS service
5.1 The SAAS service provider guarantees 99.7% availability. If any non-availability lasts for a maximum of four (4) consecutive hours, the SAAS service will be considered fully operational and uninterrupted.
5.2 The SAAS service provider shall endeavour to ensure that all activities to be carried out in relation to a Customer's request for Support, including handling questions from Users and resolving Defects, shall be commenced without undue delay and completed as soon 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 it takes to resolve a Defect, or is expected to take, is of such a duration that it is suspected that the Availability of the Functionality will be affected, the SAAS service provider will attempt to provide a temporary, adequate solution.
5.4 Availability Defects 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 Client will the SAAS service provider repair the aforementioned Defects if possible, at its then applicable rates.
5.5 The SAAS service provider may, in the event that Users do not have adequate knowledge of the Functionality and/or the SAAS service, require the Client to purchase Training from the SAAS service provider in order to raise the Users' level of knowledge to such a level that they no longer make disproportionate use of Support, or that Users will otherwise acquire the knowledge they need. The SAAS service provider will justify the reasonableness of this requirement based on its (Support) history. If the Client fails to comply with this, 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 consulting the Client and ensures that the most recent Functionality is available to the Client whenever and insofar as possible.
5.7 Prior to implementing updates and/or other changes to the Functionality, the SAAS service provider will consult with the Client if these are expected to result in a loss of the SAAS service's performance capabilities and/or a loss of Functionality and/or a reduced Availability.
5.8 The provisions of Article 5.7 do not apply in the event that 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 be able to provide the Training properly.
6.3 The SAAS service provider shall provide each course participant 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 For Support outside Working Hours, a surcharge may be charged if and insofar as specified in Appendix 4.
7.3 The SAAS service provider shall state the date, period of service, scope of service and total amount due in euros on the invoices to the Client.
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 then current rates for the relevant employees of the SAAS service provider. In that case, invoicing will take place in arrears based on the actual number of hours worked, unless explicitly stipulated otherwise.
7.6 Invoicing for functionality added to the Agreement during the term will be invoiced pro rata up to the next invoice date.
7.7 The Client shall pay the amounts owed by it under the Agreement to the SAAS service provider within thirty (30) days of the invoice date, provided that the invoice is factually correct.
7.8 If the Customer claims that the invoice(s) are factually incorrect, this does not affect his obligation to pay at least the undisputed part of the invoice(s), nor does it affect the fact that the SAAS service provider remains obliged to continue providing the service.
7.9 If the Customer has not paid the invoice amounts due within the payment term, except if the Customer has invoked the substantive inaccuracy of the invoice within ten (10) working days, the Customer will owe the statutory interest on the outstanding amount after it has been given notice of default and has had a reasonable period of time to fulfil its obligations. If the Customer remains in default of payment after receiving a 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 Customer is a Distributor, Reseller or Partner and is more than four (4) months in arrears, the SAAS service provider is entitled to suspend its services if it has given the Customer notice of default, provided that the Customer has been notified of this intention in writing, and the Customer has been granted at least ten (10) Working Days to still fulfil all payment obligations in full, 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, it is required that the cancellation is completed at least one month before the end of the current contract year. In the case of a multi-year agreement, this 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 period of time, one Party is entitled to dissolve the Agreement with immediate effect out of court by means of a registered letter with confirmation of receipt if the other Party files for suspension of payments or has been granted suspension of payments; the other Party files for bankruptcy or is declared bankrupt; the other Party's company is liquidated or terminated other than for the purpose 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 are seized, or the other party can no longer be expected to be able to fulfil the obligations under the Agreement.
8.4 If the Agreement is terminated by the Buyer pursuant to the provisions of Article 8.2, the Buyer shall have the right, upon first request, to continue to use the Functionality for a period of one (1) month, or for as long as necessary to implement the exit plan, all this in return for a reasonable fee to be determined by the SAAS service provider and to be paid in advance by the Buyer.
8.5 All rights that the Buyer has obtained under the Agreement with regard to the use of Functionality shall expire upon termination of the Agreement, with the exception of the provisions of Article 8.4.
8.6 Unless otherwise stipulated, obligations which, by their nature, are intended to continue after termination of the Agreement shall remain in effect after termination. Termination of the Agreement does not explicitly release the Parties from the provisions relating to confidentiality, liability, intellectual property rights, staff transfer, 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) transfer of data, the provision of services and/or other management measures required for the uninterrupted continuation of the Client's use of its 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 from its infrastructure, including the internet communication connections of the buyer as referred to in articles 3.8 and 3.9.
Article 10 - Liability
10.1 The Party that imputably fails to fulfil its obligation(s) shall be liable towards the other Party for compensation of the damage suffered or to be suffered by the other Party, subject to the limitations in this article.
10.2 The SAAS service provider is liable for culpable shortcomings in the fulfilment of the Agreement.
10.3 If and insofar as the limitation of the previous paragraph is not legally possible, the total liability of the parties due to attributable failure to fulfil the Agreement is limited to compensation for direct financial loss up to a maximum of the fees received by the SAAS service provider from the Buyer (excluding VAT and other government-imposed levies) over a period of six (6) months immediately preceding the month in which the event causing the damage occurred. Direct financial loss is exclusively understood to mean:
a. reasonable costs that the Buyer would have to incur to ensure that the SAAS service provider's performance complies with the Agreement; however, these costs will not be reimbursed if the Agreement has been or will be dissolved by or at the Buyer's request.
b. reasonable expenses incurred by the Buyer for the forced continued operation of its old system or systems and related facilities;
c. reasonable expenses incurred to determine the cause and scope 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 Buyer 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 that mentioned in the previous paragraph is excluded.
10.5 The aforementioned limitations of liability shall lapse:
a. in the event of claims for damages as a result of death or physical injury;
b. in the event of intent or gross negligence on the part of the Party causing the damage, including its employees and third parties engaged.
10.6 A Party shall only be liable for failure to fulfil the Agreement after the other Party has given notice of default to the negligent Party, unless fulfilment of the obligations in question is already permanently impossible, in which case the negligent Party shall immediately be in default. Notice of default shall be given in writing, granting the defaulting Party a reasonable period of time to fulfil its obligations.
Article 11 Force majeure
11.1 In the case 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 the other for any compensation. A Party can only invoke force majeure against the other Party if the Party invoking force majeure informs the other Party of its invocation of force majeure 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 Client 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 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, the first party to do so shall notify the other Party in writing that a dispute exists, as well as provide a brief statement of what that Party believes to be the subject of the dispute. All disputes that may arise as a result of the Agreement will first be submitted to the management of SAAS-dienstverlener and the management of the Buyer. If they do not reach a solution within 2 months of the dispute being reported, the disputes will be submitted to the competent court in the district where the SAAS service provider is located, including the interim injunction judge of this district court, ruling in summary proceedings.
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 IRM360 B.V. general terms and conditions can be found on our website (https://www.irm360.online/general terms and conditions/)
Appendix 2: Delivery
Delivery takes place on the basis of our general data processing agreement. You can find this 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.online/?_gl=1*1u3htuc*_gcl_au*ODkyMTM0NjU2LjE3Mzg1OTI2ODI.
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.nl/abonnementen-prijzen/)
Appendix 6: Cancelling your subscription
More information about cancelling can be found here.
(IRM360 B.V. 26-04-2024)