Article 1 Definitions
In addition to the terms above, the following terms shall have the meaning set out after them:
- “Work”: the work to be performed by CYS for a Client pursuant to the SaaS Service including supplying of, inter alia, goods and/or services.
- “Collaborator”: a predefined user role that only has access to the mobile app and experience app functionalities of the Portal (collaborating by giving feedback and viewing dashboards and handling tasks).
- “Engagement Letter”: the Order, as set out above, being a CYS document which declares that this Agreement applies, and which describes the SaaS Service, the Documentation and the Work.
- “Engagement Team”: the natural persons within CYS, both individually and jointly, who are involved in performing the Work, and also third parties (being natural persons from outside CYS) who have been called in by CYS for the purposes of performing the Work.
- “Portal”: a secured webpage that provides access to the portal for the Customer to the CYS Software, where Customer can manage its own projects, (business intelligence) data and reports and infographics.
- “Personal Data”: any information that relates to an identified or identifiable living individual.
- “Project”: a project always has one questionnaire and one project database in the data Garden, being the area of the CYS software in which all imported data, business intelligence data and project data is brought together, stored and managed, for dashboarding. A project may have multiple schedulers and invites and can contain a lot of data. A Project can be i.e. Customer Satisfaction research, Idea Box, Quality checklist for hygiene, etc).
- “User”: an employee of the Client or a person engaged by the Client who uses the SaaS Service, which User has access to a predefined user account (hereinafter also: “User Account”) providing access to the management functionality of the Portal.
- “SaaS Service”: the service whereby CYS makes and keeps Software and data of Customer available to Customer and Users via the internet or another network.
- “Subscription”: the agreement to purchase a specific package. being a specific set of functionalities that is bundled together and sold as a set, as defined and published on the CYS website, for a specific amount of time (month or year).
- “Trial”: a period during which the Customer has time to test the SaaS Service.
- “Software”: the computer software made available by CYS to the Customer via the internet or another network, as further specified in the Engagement Letter.
Article 2 Description of the Service
1. The Experience Management Software of Service Provider is made available to Customer on a SaaS Service basis through a web portal on the websites of Service Provider or by way of the Applications of Service Provider and includes: (i) the software that Customer accesses via the websites or the Applications; (ii) any other products, services, and features made available or provided to Customer by Service Provider in connection with the SaaS Service; and (iii) the trademarks, brand names and logos, content, text, documents, descriptions, products, graphics, photos, sounds, videos, interactive features, contained in or made available through the SaaS Service.
2. Service Provider will provide the SaaS Service to Customer as defined in the Engagement Letter. Service Provider will carry out the following Work as part of the SaaS Service for the duration of the Agreement:
- making and keeping the software and the data of Customer available within the hosting environment, which hosting environment is being taken to mean: the servers (including the corresponding and additional facilities) on which the Software is installed, and which is accessible via the internet of another network. If the Engagement Letter states that the hosting environment will be hosted, maintained and/or managed by a supplier of Service Provider, availability will be dependent on that supplier;
- taking appropriate technical and organisational measures regarding the hosting environment to safeguard the software and the data of Customer against loss and damage and against any unauthorised access or use;
- providing User support for the use of the SaaS Service to Customer, during office hours, which is being taken to mean during the time between 8:30 a.m. and 18:00 p.m. (C.E.T.) on Monday through Friday, with the exception of generally recognised holidays and public holidays;
- if and to the extent determined in the Engagement Letter, making a back-up of the data of Customer that are processed using the SaaS Service;
- if and to the extent determined in the Engagement Letter, providing workarounds if access to the hosting environment in which the software is installed is temporarily or permanently unavailable.
3. Service Provider has the right to use third parties, including, but not limited to, employees of Service Provider, affiliates and subsidiaries (hereinafter also referred to as: “Subcontractors”) in performance of its obligations and services pursuant to the Agreement and, for purposes of the Agreement, all references to Service Provider or employees of Service Provider will be deemed to include such subcontractors.
Article 3 Trial
1. Service Provider may offer a free, no-obligations trial subscription (the “Trial Subscription”) of the Service prior to charging the SaaS Service fees. The Trial Subscription, if any, shall commence on the date that Customer accesses or makes use of, as applicable, the SaaS Service, and will conclude at the end of the Trial Subscription as indicated on the online or offline Order, or sooner if: (i) Customer upgrades his subscription by commencing payment of the applicable fees for the Service, (ii) Customer requests to terminate the Trial Period sooner, or (iii) Customer’s use of the SaaS Service is terminated in accordance with this Agreement.
2. Upon conclusion of the Trial Subscription and until Customer deletes his account, Customer will still be able to make use of the SaaS Service, albeit limited, in order to download his data. Service Provider reserves the right to terminate and delete the account of Customer at any time subject to a 30-day period of notice. Service Provider may also change the web address of the account of Customer at any time without prior written notice. During the Trial Subscription period, Service Provider may record the sessions of Customer in an anonymised form for the purpose of improving the Service.
3. Customer acknowledges and agrees that this Agreement is applicable and binding upon Customer during the Trial Subscription period and until Customer deletes its Account, and that Service Provider: (i) does not make any commitments in connection with the SaaS Service during that period; and (ii) may send Customer, subject to the opting out of Customer, communications and other notices about the Service to the email address of Customer.
4. Service Provider reserves the right to modify, cancel and/or limit this Trial Subscription at any time.
Article 4 Duration of the agreement
1. The Agreement is entered into with effect from the day stated in the Order for the period of one month or one year, depending on the choice made in the Order, unless the parties have explicitly agreed otherwise in the Agreement.
2. After the expiry of the period referred to in paragraph 1 of this article, the Agreement will be tacitly renewed for a successive period of the same duration, unless one of the two parties has cancelled the Agreement at least one (1) month before the end of the then current period. Written termination must be done by registered mail with proof of receipt.
3. Service Provider may, within reason, make amendments to this Agreement at any time. Customer will be notified of such amendments in writing or by e-mail and will become effective 30 days after Customer has been notified of them or, if applicable, at the date indicated in the notification. If Customer continues to use the SaaS Service after this date, Customer is taken to have agreed with the amended Agreement.
Article 5 Payment
1. Unless otherwise specified in the annexes to this Agreement, except during a free trial, all charges associated with the account of Customer (“Subscription Charges”) are due in full and payable in advance, when Customer subscribes to the SaaS Service(s). Unless specified otherwise in an Order, the Subscription Charges are based on the SaaS Service Subscription Customer chooses and are payable in full until Customer terminates its account.
2. Customer shall pay Service Provider the fees indicated on the Order. Unless otherwise provided in an Order, all fees are to be paid to Service Provider within thirty (30) days of the date of invoice. If Customer does not pay the fees due and payable within the agreed period, Customer will be in default without any notice of default being required.
3. Any late, or absent, payment will be subject to any costs of collection (including reasonable legal fees) and will carry interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less.
4. If Customer is delinquent on a payment of fees for thirty (30) days or more, (a) Customer will no longer be entitled to use the SaaS Service, and (b) Service Provider will be entitled to deactivate access to and the use of the SaaS Service remotely, and (c) Service Provider will also be entitled to suspend the Work and other obligations of Service Provider.
5. Complaints concerning invoices must be made in writing within thirty (30) days from the date of the invoice.
6. Invoices will be sent electronically.
7. The license, service fees, and other amounts that are to be paid hereunder are exclusive of taxes and other levies (including interest and penalties).
8. Unless otherwise specified, all Subscription charges are non-refundable. No refunds shall be issued for partial use or non-use of the Service(s) by the Customer.
Article 6 License grant
1. Subject to all limitations and restrictions contained herein and the Order, Service Provider grants to Customer a term subscription, software as a service (‘SaaS’), nonexclusive, and non-transferable right to access and operate the object code form of Applications (and use its Documentation) as hosted by Service Provider as described in the Order, solely to perform those functions described in the Documentation. For the avoidance of doubt, Customer may use the application and mobile apps pursuant to the Subscription; a Subscription is for use of the aforementioned, not for a transfer of ownership of the application or mobile apps themselves. These remain property of Service Provider.
2. Customer will have a limited right and license to use the SaaS Service solely for its indicated purposes, to perform the functions described in the Order. Customer shall not allow any website that is not fully owned by Customer to frame, publish, distribute, replicate, or copy any portion of the web site of Customer that provides direct or indirect access to the SaaS Service. Unless otherwise expressly agreed in the Order, Customer shall not permit any subsidiaries, affiliated companies, or third parties to access the SaaS Service.
3. Unless otherwise specifically stated in the Order, the type of license granted is a per Portal, Project, User and/or Collaborator. Hardware or software Customer uses to pool connections, reroute information, or reduce the number of Users that directly access or use the SaaS Service (sometimes referred to as "multiplexing" or "pooling"), does not reduce the number of licenses or active User Accounts Customer needs. Customer may designate different staff User Accounts at any time without notice so long as the permitted number of User Accounts is not exceeded.
4. In no event will Customer disassemble, decompile, or reverse engineer the SaaS Service or Confidential Information (as defined under article 8.1) or permit others to do so. Disassembling, decompiling, and reverse engineering include, but are not limited to:
(i) converting the SaaS Service from a machine-readable form into a human-readable form;
(ii) disassembling or decompiling the SaaS Service by any means or method in order to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof;
(iii) examining the machine-readable object code that controls the SaaS Service operation and creating the original source code or any approximation thereof by, for example, studying the SaaS Service behaviour in response to a variety of inputs; or
(iv) performing any other activity related to the SaaS Service that could be construed to be reverse engineering, disassembling, or decompiling.
To the extent any such activity may be permitted pursuant to written agreement, the results thereof will be deemed Confidential Information subject to the requirements of this Agreement. Customer may use Confidential Information of Service Provider solely in connection with the SaaS Service and pursuant to the terms of this Agreement.
5. The SaaS Service may contain third party software that requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions may be requested from Service Provider and form part of and are incorporated by reference into this Agreement. By accepting this Agreement, Customer also accepts the additional terms and conditions, if any, set forth in this Agreement.
Article 7 Hosting
1. We will use reasonable efforts to achieve the availability goals of CYS, as described in the ‘Service Level Agreement for SaaS.’
2. We guarantee a 98% up-time. Up-time (U) will be calculated based on the number of minutes in one calendar year minus the number of minutes downtime. U = (525.600 – D)/525.600
3. We host the SaaS Service within the Microsoft Azure Datacentre.
Article 8 Ownership
1. By signing the Order, Customer irrevocably acknowledges that, subject to the licenses granted herein, Customer has no ownership of the Software or materials of Service Provider provided to Customer. All right, title, and interest in such Software and materials of Service Provider shall remain property of Service Provider, subject to any limitations associated with intellectual property rights of third parties. Service Provider reserves all rights not specifically granted herein.
2. Customer is expressly prohibited from reproducing, disclosing or exploiting the property referred to in paragraph 1 of this article, including computer programmes, system designs, processes, advice, master or other contracts and other products of the mind of Service Provider.
3. We may use, continue to develop and exchange with other affiliated Member Firms of Ours the knowledge, experience and general skills acquired by Us as a result of performing the Work for the purposes of performing work for You and/or for Yours and/or for other clients of (an) other affiliated Member Firm(s) of us.
Article 9Confidential information
1. “Confidential Information” includes all information disclosed by either party, before or after the Order term start date (as specified in the Order), and generally not publicly known, whether tangible or intangible and in whatever form provided, as well as any information generated by a party that contains, reflects, or is derived from such information. For the avoidance of doubt, the term ‘Confidential Information’ does not include any information used to identify individuals as under the General Data Protection Regulation (hereinafter: the “GDPR”); obligations with respect to such information (if any) are set forth in the ‘Data Processing Agreement.’
Article 10 Processing of personal data
1. To the extent that Service Provider processes personal data from Customer, in the context of the SaaS Service, Customer determines the purpose and means of the processing, and will thus act as a controller and Service Provider will act as a processor, within the meaning of the GDPR.
2. To the extent Service Provider acts as a processor, the following applies:
a. Service Provider will solely process personal data pursuant to the documented instructions of Customer and for the performance of the SaaS Services in conformity with the Agreement, unless Service Provider is required by law to process personal data, in which case Service Provider will inform Customer about this legal requirement, unless the provision of such information is prohibited by law.
b. Service Provider will take appropriate technical and organisational measures to protect the personal data against destruction, loss, alteration or unauthorised disclosure of, or access thereto.
c. Service Provider is obliged to keep confidential the personal data which Customer makes available or accessible to Service Provider and ensures that all persons authorised by Service Provider to process the personal data are bound by this confidentiality requirement.
d. Service Provider will, within reason, assist Customer in (i) complying with the obligations regarding responding to requests of data subjects (the persons to whom personal data relates), wishing to exercise their rights and (ii) complying with the obligations as laid down in Articles 32 up to and including 36 of the GDPR. Costs that Service Provider incurs for such assistance shall be borne or otherwise reimbursed by Customer.
e. Service Provider will inform Customer without undue delay upon becoming aware of a personal data breach within the meaning of the GDPR. Customer will inform Service provider prior to the use of the SaaS Service of the e-mail address to which Service Provider should send such notification.
f. Service Provider is entitled to engage third parties for the (support of the) performance of the Work. Service Provider will subject these third parties to contractual agreements in order to safeguard the careful processing of personal data in conformity with the GDPR. Service Provider will inform Customer of the engagement or replacement of third parties. Service Provider will, upon request, inform Customer about the engaged third parties prior to the use of Customer of the SaaS Service.
g. Service Provider is entitled to, in conformity with paragraph 2 sub f of this Article, process the personal data, or have this processed, outside of the Netherlands if such is necessary for the (support of) performance of the Work. If Service Provider transfers personal data, for which Customer is the controller within the meaning of the GDPR, to a third party situated in a country outside the European Economic Area (EEA), without adequate level of protection for the processing of personal data, the following applies: Customer hereby grants Service Provider power of attorney to enter into model agreements in order to comply with the transfer requirements pursuant to the GDPR. To the extent that aforementioned power of attorney is insufficient or invalid, Customer will without delay fully cooperate with Service Provider to ensure that such transfer meets the requirements of the GDPR.
h. Customer shall, within two weeks upon termination of the Work, request Service Provider to return or delete the personal data. In case of the absence of such request, Service Provider is entitled to permanently delete the personal data.
i. Service Provider enables Customer to, after prior consultation with Service Provider, with reasonable intervals, demonstrate the compliance of Service Provider with the requirements as laid down in this paragraph 2, by (i) providing the necessary information, to be assessed by us, and by (ii) allowing audits by Customer or, after joint consultation, a designated third party. We reserve the right to set reasonable conditions to the audits and to charge Customer for costs incurred by Service Provider in view of the audit.
3. Customer ensures the lawful provision of the personal data to Service Provider in the context of the SaaS Service, and will comply with all legal obligations which Customer is subject to pursuant to the applicable privacy legislation.
Article 11 Disclaimer
1. Service Provider warrants that all services to be provided by Service Provider shall be performed in a professional manner.
2. Any and all of the Software, SaaS Service, information and any other technology or materials provided by Service Provider to Customer are provided “as is” and without warranty of any kind. We make no other warranties, whether explicitly or implied, any warranties of merchantability, fitness for a particular purpose, and non-infringement. Neither Service Provider, nor any of the subsidiaries, affiliates, suppliers or licensors of Service Provider, warrants or represents that the software or service will be uninterrupted, error-free, or secure. Customer acknowledges that there are risks inherent to internet connectivity that could result in the loss of the privacy, data, confidential information, and property of Customer or Users.
Article 12 Indemnification
1. Customer will indemnify Service Provider against any and all claims of third parties arising from or connected to the Work performed or to be performed for Customer, unless such claims result from intent or wilful recklessness on the part of the executive staff of Service Provider. The indemnity will include all loss suffered and legal and other costs incurred by Service Provider in connection with claims.
2. The indemnity under paragraph 1 of this Article is also stipulated on behalf of the persons, both individually and jointly, forming the Engagement Team, and on behalf of the other affiliated parties of Service Provider, whether or not engaged by Service Provider for the performance of the Work.
Article 13 Limitation of Liability
1. Service Provider will perform the Work (and any additional work) to the best of its abilities and, in doing so, will exercise the required due care. Service Provider will only be liable if Customer can demonstrate that Customer has suffered loss as a result of a material error on the part of Service Provider.
2. Parties agree that the exclusive remedy of Customer, in view of the liability of Service Provider for any damages based on any incident, is to recover from Service Provider direct damages up to an amount equal to the Service fee of Customer for the month during which the loss or breach occurred. In case the Service is provided for free, a maximum of €10.00 to be recovered applies. Customer cannot recover any other damages or losses that exceed such amount, including any and all direct, consequential, lost profits, special, indirect, incidental, or punitive damages or losses. These limitations and exclusions apply even if the maximum amount set out above fails to fully compensate Customer for any losses or does not satisfy its essential purpose or if Customer knew or should have known about the possibility of the damages. To the maximum extent permitted by law, these limitations and exclusions apply to all or any claims related to this Agreement, the Services, or the software related to the Services.
3. The limitation set out under paragraph 1 and 2 of this Article will only not apply in the case of intent or wilful recklessness on the part of the executive staff of Service Provider. This limitation of liability will also apply in full in the event of liability towards more than one User of Customer; in that case, the amount paid by Service Provider to all Users jointly will not exceed one (1) time the fee payable to Service Provider pursuant to the provisions of the Engagement Letter.
4. Service Provider will not be liable in any way whatsoever for consequential loss (including but not limited to lost profit, lost savings, loss due to business interruption), except in the case of intent or wilful recklessness on the part of the executive staff of Service Provider.
5. Except for the cases mentioned in paragraph 1 through 4 of this Article, Service Provider will not be liable for damages on any account whatsoever.
6. Service Provider will exercise due care when engaging third parties. Service Provider will not be liable for any errors and/or failures of such third parties. This does not apply to third parties which act as subcontractors and thus act under the responsibility of Service Provider.
7. The limitations on liability laid down in this Article operate both on behalf of Service Provider and of the persons, individually as well as jointly, that form the Engagement Team.
8. CYS GROUP member firms other than Service Provider (whether or not engaged in the performance of the Work) will never be liable for any loss suffered on the part of Customer in connection with the Work. The limitations on liability laid down in this Article will also operate on behalf of all CYS GROUP member firms other than Service Provider (whether or not engaged in the performance of the Work).
9. The provisions of this article relate to both contractual and non-contractual liability of Service Provider towards Customer.
10. Service Provider will not be liable to Customer for any delay or failure of Service Provider to perform the obligations of Service Provider if such delay or failure arises from any cause or causes beyond the reasonable control of Service Provider (force majeure). Such causes will include, but are not limited to, floods, fires, power outages or other emergencies, or delays by Customer in providing required resources or support or performing any other requirements.
Article 14 Term and Termination
1. The SaaS Service is provided on a subscription basis for a set term, specified in the Order, and shall automatically renew for additional periods equal to the original initial term specified in the Order, unless either party notifies the counterparty of non-renewal before the end of the relevant subscription term.
2. Parties may terminate the Agreement pursuant to a ninety (90) days written notice of termination before the next renewal date of the initial term specified.
3. The SaaS Service and any license created hereunder may be terminated by Service Provider:
(i) if Customer fails to make any payments due hereunder within thirty (30) days of the due date;
(ii) pursuant to a thirty (30) days’ written notice to Customer if Customer fails to perform any other material obligation required of it hereunder, and such failure is not remedied within such thirty (30) day period; or
(iii) if Customer files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.
4. In case of initial term of 1 year or more, the SaaS Service may be terminated by Customer pursuant to a ninety (90) days’ written notice to Service Provider if Service Provider fails to perform any material obligation required of it hereunder, and such failure is not remedied within ninety (90) days from receipt by Service Provider of the notice of Customer, or a longer period if Service Provider is working diligently towards such remedy.
5. Upon termination of the SaaS Service, Customer shall no longer access the SaaS Service or Software and Customer shall not circumvent any security mechanisms contained therein.
6. Termination of the SaaS Service will not limit either party from pursuing other remedies available to it, including injunctive relief, nor will such termination relieve Customer of the obligation to pay all fees that have accrued or are otherwise owed by Customer under the SaaS Service.
7. Service Provider may furthermore terminate the Agreement by written notice with immediate effect in the event of unforeseen circumstances (within the meaning of section 6:258 of the Dutch Civil Code).
8. Customer may only furthermore dissolve the Agreement if Service Provider fails imputably to perform an essential obligation under the Agreement and if CYS is, as such, in default (within the meaning of section 6:81 of the Dutch Civil Code).
Article 15 Miscellaneous
1. In addition to Article 3.1 of the Agreement, the Agreement will come into being at the moment that the Customer and/or Users use the SaaS Service.
2. Pursuant to the Dutch Money Laundering and Terrorist Financing (Prevention) Act (“WWFT”, or the “Wet ter voorkoming van witwassen en financieren van terrorisme”), Service Provider is held to report any unusual intended or performed transaction to the supervisory authority insofar as it is identified in the context of our regular work. In addition, pursuant to the Dutch Money Laundering and Terrorist Financing (Prevention) Act, Service Provider is held to perform client screening with regard to potential clients. This means, inter alia, the identification of the potential client and verification of the identity of Customer prior to the Work. Service Provider can request the assistance of Customer with regard to the client screening.
3. All rights and obligations arising from the Agreement that by nature and tenor are intended to continue in force after termination of the Agreement will remain in full force after the Agreement has ended.
4. Neither of the parties to the Agreement may transfer the rights and obligations arising from or related to the Agreement to a third party without the express written permission of the other party to this Agreement.
5. The Agreement is governed by Dutch law. All disputes arising from or connected to the Agreement will fall under the exclusive jurisdiction of the competent court in the district in which Service Provider has its seat. The United Nations Convention on Contracts for the International Sale of Goods with regard to Movable Property (the ‘Vienna Sales Convention’) does not apply.
6. We make use of:
These additional terms and conditions, which may be obtained from Service Provider, form part of and incorporated by reference into this Agreement. By concluding this Agreement, Customer also accepts the additional terms and conditions, if any, set forth therein.
7. The terms of this Agreement will survive termination, dissolution or expiration of the Agreement.
8. This Agreement, together with the Order and documents listed in paragraph 6 of this article, constitute the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals and prior discussions and writings between the parties with respect to the subject matter contained herein. Any signed copy of this Agreement made by reliable means will be considered an original.
9. Headings are for reference purposes only, have no substantive effect, and will not enter into the interpretation hereof.
10. Each provision of this Agreement is a separately enforceable provision. If any provision of this Agreement is determined to be or becomes unenforceable, invalid or contrary to law, such provision will be reformed to the minimum extent necessary in order for this Agreement to remain in full effect. Such modification shall seek to be as similar in nature, scope and tenor as the original provision. In view of such invalidity or unenforceability, the other unaffected provisions shall remain in full force.