Saas terms and conditions
- 1. DEFINITIONS
AUP: Acceptable Use Policy as defined in Attachment A, available on the Service Provider’s website and updated from time to time by the Service Provider.
Authorized Users: those employees, agents and independent contractors of the Client, its affiliates or third parties accepted by Service Provider, who are authorized by the Client and Service Provider to use the Services hereunder;
Client Data: the data inputted by the Client, Client Group, Authorized Users, or the Service Provider on the Client's, Client Group’s or Authorized Users’ behalf for the purpose of using the Services or facilitating the Client’s, Client Group’s or Authorized Users’ use of the Services
Client Group: group consisting of the Client’s affiliates and third parties accepted by Service Provider and the Client to have Authorized Users and any single one of them;
Content: any file, data (including private data inputted or processed by or on behalf of the Client, Client Group or its Authorized Users), material or other information, including without limitation, audio and/or visual files, text, images, documents, spreadsheets, hyperlinks, web form entries, text messages, web pages and any other similar file, data, material or other information not provided by Service Provider inputted or processed in connection or relation with the Services or otherwise under this Agreement.
Data Privacy Legislation: all applicable Belgian data protection and privacy legislation and regulations;
Designated Equipment: each and any IT infrastructure or system of the Client specified in the order form on or in which the software components allowing use of the Services are (to be) installed or used, if applicable as modified by the Client as a replacement thereof with the prior written approval of the Service Provider;
Documentation: any written materials relating in any way to the Services, including any printed or digital materials.
Metadata: the data providing information about one or more aspects of the use of the Services, Content or Client Data, such as without limitation means of creation of the data, locations accessed, purpose of the data, time and date of creation, creator or author of the data, location on a computer network.
Online Software Platform: the online software platform supported and provided by Service Provider, on which the Applications are located, as further defined and elaborated in Attachment B and updated and developed by the Service Provider from time to time;
[Resolution Time: time within which a solution for a logged support request is available;
Response Time: time within which reception of a logged support request is confirmed to the Client and first investigation and resolution actions in this respect are started
Service(s): Provision of access to the Applications, and related Support Services and one time set up as further defined and elaborated in the Order Form;
Support Services: [Application management services and] support for the Applications, specied in the Order Form
- 2. SERVICES
2.1. Client is granted a non-transferable, non-exclusive, revocable right to permit the Authorized Users to access and use the Applications on the Designated Equipment and a right to use the related Support Services during the term of the Services and solely for the Client’s or Client Groups’ internal business operations.
2.2. The present Agreement is entered into between the Service Provider and the Client only and the Service Provider has no contractual or other undertakings hereunder and/or provides no guarantees to the Authorized Users or any other third party.
- 3. AUTHORIZED USERS
3.1. In relation to the Authorized Users, Client undertakes and warrants that:
(a) unless for reasons of temporary replacement (e.g. illness, holidays), it will not allow the account for an Authorized User to be used by more than one individual Authorized User unless it has been reassigned in its entirety to another individual Authorized User, in which case the prior Authorized User shall no longer have any right to access or use the Services;
(b) it shall permit Service Provider to audit the Client in order to verify the Client’s respect of the Agreement;
(c) if at any time it appears that the Client has not notified the correct number of Authorized Users of the Services to the Service Provider, the Client shall immediately (i) pay to Service Provider an indemnity of an amount equal to the one that should have been paid for the non-declared user(s) for a period of  months, without prejudice for Service Provider to prove higher damage, and (ii) take appropriate action to cease this violation of the Agreement;
3.2. Client warrants that the Client Group and Authorized Users will respect, mutatis mutandis, the provisions of the present terms and conditions other than payment provisions.
- 4. PAYMENT AND TAXES
4.1. Service Provider may revise the price of the Services annually (i.e. at the end of each contract term) upon four (4) months prior written notice to Client.
4.2. Services must be pre-paid by the Client. In order to enable consistent Services over time, the Client will be responsible to ensure it has an adequate provision for Support Services.
4.3. Service Provider’s invoices are due and payable by the Client within 30 calendar days after date of invoice. Invoices that are not paid on their due date shall automatically and without reminder be increased with a lump sum indemnity of 10 % and an interest shall accrue thereon at a rate of 12 % rate per annum.
- 5. TERM, TERMINATION AND SUSPENSION
5.1. Termination. Either Party may terminate this Agreement with immediate effect by written notice to the other Party in case of a material breach by the other Party of a material obligation under this Agreement and, if the breach is capable of remedy, the other Party failing to remedy the breach within [fifteen (15)] business days of receipt of the notice of the breach
5.2. Effective immediately upon the termination of this Agreement,
- the provision of all and any Services hereunder shall end;
- all Confidential Information and all Documentation, including all copies thereof, must be returned to Service Provider or permanently destroyed;
- all terms of this Agreement that should by their nature survive termination will survive.
5.3. Suspension. Service Provider may immediately (and without prior notice) suspend the Services or part thereof if
(i) the Service Provider, in its reasonable sole discretion, determines that Client’s use of the Services is in violation of the terms and conditions of the AUP or of any applicable laws and/or governmental regulations; and/or
(ii) the Client fails to pay Service Provider as required under the Agreement.
Service Provider may terminate the Services hereunder if any of the foregoing is not cured within [fifteen (15)] days after Service Provider’s initial notice thereof.
Any suspension by Service Provider of the Services or part thereof under this paragraph shall not excuse Client from its obligation to make payment(s) under the Agreement.
- 6. RESPONSIBILITIES OF THE CLIENT
6.1. The Client will be fully and solely responsible:
- to fully cooperate with Service Provider for the performance of the Services, including, without limitation, providing Service Provider with timely access to data, information, Client IT infrastructure, facilities and personnel;
- to obtain and maintain all necessary or useful licences, consents (incl. for the lawful processing of personal data by Client), and permissions necessary for the Service Provider to perform the Service Provider’s obligations in accordance with this Agreement;
- for the accuracy, quality and legality of all Client Data and Content (and the means by which such Client Data and Content was acquired);
- to assure that it, the Client Group and the Authorized Users will use the Services in accordance and strict compliance with all applicable procedures and guidelines set out in this Agreement (including the AUP), laws and regulations
- to ensure that its and the Client Group’s infrastructure network, systems, Designated Equipment and internet access comply with the relevant specifications as provided and possibly modified by the Service Provider from time to time;
- to ensure that it and each of the Client Group have and shall maintain valid licenses, user rights and/or consents for all the systems and software it/they use(s) or has(ve) on its(/their) infrastructure as well as for network access and other required or useful tools or technology for it/them to enable Service Provider, its subcontractors and agents to perform the Services and that it/they complies with all applicable rules and regulations in this respect;
- to assure adequate security of its IT systems and procedures used for accessing the Application.
6.2. The Client shall indemnify and hold harmless Service Provider from and against any and all claims, damages, liabilities, costs, penalties and expenses (including attorneys’ fees, expert’s fees and settlement costs) directly or indirectly arising out of or relating to any suit, action, proceeding or claim brought or asserted by a third party pursuant to any theory of liability against Service Provider arising out of or relating to any one or more of the following: (i) a breach by Client of this Agreement; (ii) the use of the Services by Client, Client Group or Authorized Users, or any Content on the Services; (iii) the alleged or actual infringement or misappropriation of any intellectual property right or other proprietary right by Client or its agents, representatives, Client Group or Authorized Users; (iv) Client’s relationship with the owner or provider of any software installed or stored on the Services; or (v) Client’s failure to use reasonable security precaution, except to the extent finally judicially determined to have resulted primarily from the bad faith or intentional misconduct of Service Provider or their respective personnel.
- 7. RESPONSIBILITIES OF AND WARRANTIES BY SERVICE PROVIDER
7.1. The Service Provider will use its best endeavours (i) to assure that the Applications meet the respective characteristics and functionalities described in the related Documentation in all material respects and (ii) to perform the Services in accordance with the Service Level Objectives provided in the order in all material respects.
7.2. The Service Provider:
(a) does not warrant that the Client's use of the Services will be uninterrupted or error-free, or free of harmful components such as malware, viruses, bugs or any other electronic elements (e.g. hacking) that cannot be blocked by reasonable market conform anti-virus software, or that the Content stored within the Applications will be secure or not otherwise lost or damaged as a result therefrom;
(b) does not guarantee that the Services, Documentation and/or the information obtained by the Client through the Services will meet the Client’s requirements. Prior to ordering the Service(s), the Client has taken knowledge of the Applications and their functioning and characteristics and accepts them as is.
7.3. If the Services provided to Client for any calendar month were not in accordance with the warranty specified in Clause 7.1 above, Client will provide written notice to Service Provider no later than 60 days from the last day of that calendar month. The notice must contain a description of the deficiency. If applicable, founded and due to a fault of the Service Provider, following number of days of Service (non cumulative) will be added to the end of the Client’s term for the Service, at no extra charge
- 5 days, for each month where the monthly accessibility was less than 99,98%
- 10 days, for each month where the monthly accessibility was less than 99,95 %
- 15 days, for each month where the monthly accessibility was less than 99,00 %
Such prolongation will be the Client’s sole and exclusive remedy, and Service Provider’s sole liability to Client for any such breach of warranty.
7.4. Service Provider further warrants that, to the best of its knowledge, the Services do not infringe upon the intellectual property rights of any third parties. In the event that a third party successfully claims that the Services infringe upon its intellectual property rights, Service Provider undertakes to either (i) obtain the right to use the Services, or (ii) amend the Services or replace any counterfeiting components so as to allow it to be lawfully used or (iii) if these alternatives are not commercially reasonable, the Service Provider may end the part of the Agreement relating to the applicable Services and refund the related fees (pro rata temporis). If such return materially affects Service Provider’s ability to meet its obligations under the present Agreement, the Service Provider may, at its option and upon 30 days prior written notice, terminate the Agreement entirely. The Service Provider will not indemnify Client
(i) if the infringement claim results partially or entirely from the Client’s fault;
(ii) if an infringement claim is based upon anything (data, design, third party Web page accessed via a hyperlink, software, material, …) not furnished by the Service Provider;
(iii) to the extent that an infringement claim is based upon the combination of any part of the Services with any products or services not provided by Service Provider.
7.5. To the maximum extent permitted by applicable law, the aforementioned warranties are exclusive and Service Provider does not make any other warranties or representations, including with respect to merchantability, satisfactory quality, fitness for a particular purpose, non-infringement or quiet enjoyment.
- 8. LICENSE AND (DATA) OWNERSHIP
8.1. Client acknowledges that the Services, including but not limited to the Applications, Online Software Platform and supporting infrastructure, Documentation, Metadata, know-how, software, intellectual property and technologies used by, owned by, licensed to or developed by Service Provider in performing the Services are protected by intellectual property rights and shall remain the full property of Service Provider and/or its licensors. Except as expressly stated herein, this Agreement does not grant the Client any intellectual property or other rights to, or in respect of the Services or the Documentation.
8.2. Any intellectual property and proprietary rights in the Client Data, the Content and the material provided by Client for performing the Services shall remain the property of the Client. The Service Provider shall receive all rights and licenses in this respect that are required or useful for the execution of the Services.
8.3. Client is the controller of all private data contained in the Content and the Client Data. The Client agrees that Service Provider may share (personal) data transferred by the Client, Client Group and/or Authorized Users to Service Provider under this Agreement or used by Service Provider to provide the Services with any subcontractor, including located abroad.
8.4. Client undertakes not to (i) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Applications, Online Software Platform or any Service or any program or software or application provided by Service Provider, in any form or media or by any means; or (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Applications, Online Software Platform or any Service, program or software provided by Service Provider; or (iii) license, sell, rent, lease, transfer, assign, display, disclose, or otherwise commercially exploit, or otherwise make any part of the Applications, Online Software Platform or any Service, program or software provided by Service Provideravailable to any third party except the Authorized Users. The applicability of article 6, §1 of the law of June 30, 1994 implementing the EU directive of 14 May 1991 is expressly excluded.
- 9. CONFIDENTIALITY
9.1. For the purposes of this Agreement, confidential information means (i) information that is designated as "confidential"; (ii) information which by its nature is to be reasonably considered as confidential and/or (iii) the provisions of the Agreement (“Confidential Information”). Confidential Information shall not include information which: (i) shall have become publicly available other than as a result of disclosure by the receiving Party in breach hereof; (ii) was disclosed to the receiving Party on a non-confidential basis from a source other than the disclosing Party, which the receiving Party believes it is not prohibited from disclosing as a result of an obligation in favour of the disclosing Party; (iii) is developed by the receiving Party independently of, or was known by the receiving Party prior to, any disclosure of such information made by the disclosing Party; or (iv) is disclosed with the written consent of the disclosing Party.
9.2. Each party shall hold the other's Confidential Information in confidence and, unless and to the extent required by order of a court, public authority, regulation, law or rule not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the performance of this Agreement.
9.3. Each Party shall maintain the Confidential Information of the other Party in confidence using at least the same degree of care as it employs in maintaining in confidence its own Confidential Information, but in no event less than a reasonable degree of care.
9.4. The Client hereby consents to Service Provider disclosing such Confidential Information to any of its employees, agents and representatives and to any subcontractors or licensors, or to its legal advisors, auditors, and insurers or as may be required for the due performance of this Agreement.
10. LIMITATION ON DAMAGES AND ACTIONS
10.1. The entire liability of Service Provider under or in connection with this Agreement whether in contract, statute, tort (including, without limitation, negligence), or otherwise (‘Claims’), shall at all times be limited in aggregate to an amount equal to the total amount of the fees actually paid by Client to Service Provider for the Services, during the 12 month period immediately preceding the month in which the first event giving rise to the Claim occurred, except to the extent finally judicially determined to have resulted primarily from the bad faith or intentional misconduct of Service Provider. In all circumstances, the aggregate liability of Service Provider for any Claim whatsoever shall never exceed an amount which is proportional to the relative fault that its conduct bears to all other conduct giving rise to such Claim.
10.2. Service Provider is not responsible for Client’s or third party’s network, systems or network connections or for conditions or problems arising from or related to Client’s or third party’s network connections (e.g., bandwidth issues, excessive latency, network outages), or caused by the internet. Client is responsible for configuration, management, security and maintenance of its networks and systems. Service Provider reserves the right, at its reasonable discretion, to disable or disconnect any environment as necessary and without notice if such environment malfunctions or otherwise affects network access within or to Service Provider’s data center(s) or another customer’s environment.
10.3. In no event Service Provider shall be liable to the Client, whether in contract, statute, tort (including, without limitation, negligence) or otherwise for i) loss or damage incurred by the Client as a result of third party claims, or ii) damage or loss resulting from a fault or action of a third party or the Client, iii) use of the Services contrary to the Service Provider's instructions or inability of the Client to perform the recommended updates, or follow instructions or procedures or provide for the equipment, conditions and circumstances to enable Service Provider to provide the Services in a normal way, or modification or alteration of the Designated Equipment or the Services by any party other than the Service Provider, iv) incidental, special/consequential, punitive/exemplary or indirect loss, damage or expense suffered by the other such as but not limited to loss of profit, revenues, goodwill, data, business, opportunities or anticipated saving (whether or not deemed to constitute a direct claim or not).
10.4. Nothing in this Agreement shall operate to exclude or restrict either Party's liability for: i) death or personal injury resulting from negligence; ii) wilful misconduct or; iii) fraud.
10.5. Force Majeure. Except for the payment of money, neither Party shall be liable for any delays or other non-performance resulting from circumstances or causes beyond its reasonable control, including, without limitation, acts or omissions or the failure of the other party or a third party to cooperate, fire or other casualty, internet interruptions, viruses that are not filtered by reasonable antivirus software, act of God, epidemic (including for the avoidance of doubt, pandemic influenza attack), strike or labour dispute, war or other violence, or any law, order or requirement of any governmental agency or authority.
10.6. No action, regardless of form, arising under or relating to this Agreement or the Services, may be brought by either party more than one (1) year after the cause of action has accrued, except that an action for non-payment of any invoice may be brought by a party not later than four (4) years following the due date of the concerned invoice.
11.1. Subcontract. Service Provider may use subcontractors to perform any portion of the Services.
11.2. Entire Agreement and Amendments. This Agreement constitutes the entire agreement between Service Provider and the Client with respect to this engagement and supersede all other oral and written representations, understandings or agreements relating to this engagement. The printed terms of any purchase order and other communications issued by the Client in connection with the Services will not apply unless unambiguously accepted in writing by Service Provider.
11.3. Independent Contractor. Each Party is an independent contractor, and neither Party is, nor shall represent itself to be, an agent, partner, fiduciary, joint venture, co-owner or representative of the other.
11.4. Non-solicitation. During the performance of the Services and for a period of twelve (12) months thereafter, the Client shall not for its benefit or the benefit of another directly or indirectly employ, solicit or retain the services of the personnel of the Service Provider involved in providing of the Services or otherwise directly connected with this Agreement, under penalty of having to pay an indemnity amounting to the full gross remuneration of twelve (12) months earned by the person in question.
11.5. Change of Control. In case of Change of Control of the Client, the Service Provider can immediately terminate the Agreement.
11.6. Severability. If any provision of this Agreement is found by a court of competent jurisdiction or arbitrators to be unenforceable, such provision shall not affect the other provisions, but such unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permissible the intent of the Parties set forth in this Agreement.
11.7. Waiver. The failure of either Party to insist upon strict performance of any of the provisions contained in this Agreement shall not constitute a waiver of its rights as set forth in this Agreement, at law or in equity, or a waiver of any other provisions or subsequent default by the other Party of any of the terms or conditions in this Agreement.
11.8. Governing law – Competent court. This Agreement shall be governed by and construed in accordance with the laws of Belgium and shall be subject to the exclusive jurisdiction of the Courts of Brussels.
ATTACHMENT: ACCEPTABLE USE POLICY
This ACCEPTABLE USE POLICY ("AUP") describes acceptable use of and access to the services offered by Service Provider. BY ACCESSING OR USING THE SERVICES, CLIENT AGREES TO THE TERMS OF THIS AUP.
- 1. Laws, regulations and codes
Client may not use any services of the Service Provider relating to software applications and/or related support services (“SaaS Services”) or transmit, distribute, or store material through the use thereof in a manner that Service Provider believes:
1.1 Violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law (each a "Law");
1.2 Violates the terms of this AUP, the terms of any applicable agreement with Service Provider, or any other Service Provider policy applicable through the Agreement;
1.3 Violates generally accepted standards of Internet usage;
- 2. Offensive Content
Client may not use SaaS Services or transmit, distribute, or store material through the use thereof in a manner that Service Provider believes:
2.1 Is abusive, deceptive, pornographic, obscene, defamatory, slanderous, offensive, or otherwise inappropriate;
2.2 Violates or otherwise encroaches on the rights of others, including, but not limited to, infringing or misappropriating any privacy, intellectual property, proprietary right of another;
2.3 Advocates or induces illegal activity;
2.4 Stalks, harasses, or harms anyone, including minors;
2.5 Impersonates any person or entity or otherwise misrepresents Client's affiliation with a person or entity;
- 3. Security and Protection
Client may not use SaaS Services or transmit, distribute, or store material through the use thereof in a manner that Service Provider believes:
3.1 Modifies, alters, tampers with or creates derivative works of any software included in the SaaS Services;
3.2 Reverse engineers, disassembles, or decompiles the SaaS Services or software included in the SaaS Services or the IT infrastructure used by the Service Provider for the provision of the SaaS Services (the “Infrastructure”). The applicability of article 6, §1 of the law of June 30, 1994 implementing the EU directive of 14 May 1991 is expressly excluded;
3.3 Accesses or uses the SaaS Services in a way intended to avoid incurring fees or exceeding usage limits or quotas;
3.4 Interferes with or adversely affects the SaaS Services or use of the SaaS Services by other Service Provider customers;
3.5 Uses any high volume automated means (including robots, spiders, scripts or similar data gathering or extraction methods) to access the SaaS Services or any other accounts, computer systems, or networks connected to the SaaS Services or the Infrastructure;
3.6 Conducts denial of service attacks or in any way involves or relates to cybercrime or intentionally interferes with the proper functioning of any system;
3.7 Operates network services like open proxies, open mail relays, or open recursive domain name servers;
3.8 Uses means (manual or electronic) to avoid any use limitations placed on a system, such as access and storage restrictions;
3.9 Distributes, publishes, sends, or facilitates unsolicited mass e-mailings, promotions, advertising, or solicitations, including commercial advertising and informational announcements; or
3.10 Alters or obscures mail headers or assume a sender's identity without the sender's explicit permission.
- 4. Monitoring and Enforcement.
Service Provider has no responsibility for any material or information created, stored, maintained, transmitted, or accessible on or through the SaaS Services and is not obligated to monitor or exercise any editorial control over such material.
While not obligated to perform investigations, the Service Provider may:
1. Investigate violations of this AUP or misuse of the SaaS Services and for this purpose access the information or material created, stored, maintained, transmitted, or accessible on or through the SaaS Services;
2. Investigate and help prevent security threats, fraud, or other illegal, malicious, or inappropriate activity;
3. Remove, disable access to, or modify any material or resource that Service Provider believes violates this AUP or any other agreement Service Provider has with Client for use of the SaaS Services; or
4. Suspend or terminate provision of SaaS Services to Client for uses that violate this AUP or, in case of material violation of this AUP by the Client, suspend or terminate without notice or indemnity any other agreement Service Provider has with Client for use of the SaaS Services.
Service Provider may report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Service Provider's reporting may include disclosing appropriate Client information. Service Provider also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this AUP. Nothing in this AUP shall limit in any way Service Provider ' rights and remedies at law or in equity that may otherwise be available.
- 5. Report violations
Client can report any violation of this AUP to firstname.lastname@example.org
- 6. Modifications to the AUP.
Service Provider may, in its sole and absolute discretion, modify this AUP from time to time. Such modification will be effective as from the earlier of (i) the notification of the amended policy by e-mail or other means to Client or (ii)  days following the publication of the amended AUP on the Service Provider’s website [insert reference/link to website]. If Client objects to any such changes, Client's sole recourse shall be to cease using the SaaS Services or Infrast. Continued use of the SaaS Services following aforementioned notice or publication of any such changes shall indicate Client's acknowledgement of, and agreement with such changes.