Terms and conditions IQ Messenger Cloud Software as a Service
IQ Messenger BV, (hereinafter IQM), Pieter Zeemanweg 57, 3316 GZ Dordrecht, The Netherlands and registered at the Chamber of Commerce in Rotterdam under number 56886268 provides a cloud-based Software as a Service platform for critical messaging, notification, alarming and communication in the broadest sense (hereinafter SaaS Services).
The SaaS services is constructed from the IQM Software and third-party Host/Cloud services and hardware.
This IQ Messenger Cloud Software as a Service (SaaS Services) Agreement (“Agreement”) is entered into by Customer on the Effective Date, either directly with IQM or indirectly through an IQ Messenger BUSINESS PARTNER (hereinafter Partner), and governs Customer’s, or its End Users purchase, all related efforts and works for system configuration, installation, operation, invoicing, training, service, support and use of proprietary SaaS Services, as identified in an Order (all as defined below).
Note that by executing an Order for the purchase of SaaS Services or otherwise using the SaaS Services, Customer shall be deemed to confirm its acceptance of this Agreement and Customer’s agreement to be a party to this binding contract.
This Agreement shall be interpreted and applied in accordance with Sections 1 and 2.
1 INTERPRETATION AND DEFINITIONS.
1.1 In this Agreement, unless the context otherwise requires:
- Reference to the parties include their respective successors and permitted assigns;
2. Words in the singular include the plural and, in the plural, include the singular;
3. Headings are for ease of reference only;
4. Any reference to “Agreement” also refer to any amendment or supplement to it;
5. The term “including” means including without limitation;
6. Capitalized words, phrases and acronyms shall have the meanings given to them in the Agreement or shall have their ordinary (technical or other) meaning; and
7. Parties have expressly required the Agreement to be drawn up in English.
1.2 In the case of a conflict between any provision of this (SaaS) Agreement and any other contract documents, the following descending order of precedence shall apply:
(1) the provisions of the body of this Agreement,
(2) the provisions of the attachments, annexes or schedules and
(3) the provisions of the Order. In case of a conflict between the provisions of the Service Level Agreement and the provisions of this Agreement, the latter shall prevail.
1.3 “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control of the parent company of, as appropriate, Customer Group or IQM Group. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.4 “Agreement” means (as the context requires):
(i) this SaaS Agreement (including Exhibits attached hereto), or
(ii) the agreement described under (i) and all Orders, further agreements and other contract documents (taken together).
1.5 “Cloud” means a third party datacenter/service provider used by IQM to Host and provide the IQM SaaS Services.
1.6 “Confidential Information”: means all information in any medium or format (including written, oral, visual or electronic, and whether or not marked or described as “confidential”), together with all copies, which relates to a party (the “Disclosing Party”) or to its employees, officers, customers or suppliers, and which is directly or indirectly disclosed by the Disclosing Party to the other party (the “Receiving Party”) in the course of their dealings relating to this Agreement, whether before or after the date of this Agreement. However, the following information is not “Confidential Information” for the purposes of this Agreement:
(i) information which is in the public domain other than as a result of breach of this Agreement or any separate confidentiality undertaking between the parties; (ii) information which the Receiving Party received, free of any obligation of confidence, from a third party which itself was not under any obligation of confidence in relation to that information; and (iii) information which was developed or created independently by or on behalf of the Receiving Party.
1.7 “Content” means information rightfully obtained by IQM from publicly available sources or its third-party content providers and made available to Customer through the Services, beta Services or pursuant to an Order, as more fully described in the Documentation.
1.8 “Customer” means the (potential) counter party of IQM that entered into an Agreement or (directly or indirectly) entered into any negotiations regarding such Agreement. In general, but not exclusively, this means the authorized IQM BUSINESS PARTNER referred to as “Partner”. Customer or BUSINESS PARTNER is responsible that End User uses the Product according to the terms and conditions as agreed in this Agreement and applicable DPA.
1.9 “Customer Group” means Customer and its Affiliates including Customer.
1.10 “Data” means electronic data provided by or on behalf of the Customer or Customer Group (or its Partners and End Users) to IQM’s Host and generated via the SaaS Services. This Data also includes all electronic data and information received, generated, processed or stored by the SaaS Services. IQM is entitled to use Data as described in the DPA.
1.11 “Data Protection Agreement” or “DPA” means the specific provisions between the parties pursuant to Section 11.1, if any, for processing of personal data by IQM on behalf of Customer. The DPA is part of this Agreement and is included as Annex 2. The latest version of the DPA will always be applicable to this Agreement and is available on the website www.iqmessenger.com
1.12 “Data Protection Laws” means in relation to any personal data (if any) which is processed in the performance of this SaaS Agreement, the applicable (local) law(s) or any other (local) regulations, guidelines or policies, instructions or recommendations of any competent governmental authority, including any amendments, replacements, updates or other later versions thereof.
1.13 “Documentation” means the user guides, tutorials, online help, release notes, printed or digital instructions for use, reference manuals, best practices, requirements and other explanatory and pre-requisite materials developed by IQM regarding the use or operation of the SaaS Services.
1.14 “Effective Date” means Delivery Date of the SAAS services provided to the Partner / Customer having Operational Readiness. Invoicing starts the first day of the next month of the Effective Date.
1.15 “End User” means, as applicable and unless stated otherwise herein, any person or entity (including, for the avoidance of doubt, any employee or agent of Customer) authorized by Customer to access or use the Products.
1.16 “Fair Use Policy” means the fair use policy governing the Support Services attached in Exhibit 1, as may be amended by IQM from time to time.
1.17 “Fees” means in respect of each Agreement, the total sum of fees and charges (recurring and/or one off) payable by the Customer for Products and/or Services as specified in the relevant Order(s) or (if appropriate) to be calculated by IQM based on the most current version of the Pricebook.
1.18 “Host” means the computer equipment within the Cloud ICT environment on which the IQM Software and or third-party Software is installed and made functional to use the IQM SaaS Services, operated by IQM or its Partners.
1.19 “IQM” means, unless agreed otherwise in the Order. IQ Messenger B.V. Pieter Zeemanweg 57, 3316 GZ Dordrecht, The Netherlands.
1.20 ” IQ Messenger Medical” means; The IQM SaaS Services to be used for the purpose of connecting/interfacing medical CE marked devices within the supported MDR (Medical Device Regulation) territory. Please contact IQM for the latest information about the applicable MDR territory.
1.21 “IQM Software” means, as applicable, the Object Code form or such other IQM software products to which Customer is provided access as part of the SaaS Services, as identified in an Order, and shall be deemed to include the Documentation.
1.22 “Object Code” means the form of IQM Software wherein computer programs are assembled or compiled in magnetic or electronic binary form on software media, which are readable and usable by machines, but not generally readable by humans without reverse-assembly, reverse-compiling, or reverse-engineering.
1.23 “Operational Readiness” means the SaaS platform is operational and ready for configuration.
1.24 “Order” means an order referencing this Agreement as may be agreed from time to time with IQM (or a Partner) identifying the SaaS Services, Fees and other details of each transaction that is subject to and governed by this Agreement. An Order may consist of a purchase order, schedule, quotation, or statement of work that has been signed by Customer or a Partner, pursuant to this Agreement.
1.25 “Partner” means a third party that is authorized by IQM based on a separate and valid agreement, to resell the Products and Services to certain End Users.
1.26 “Pricebook” means the pricelist and or Excel calculating tool, issued by IQM to the general business community and/or public as the centralized source of pricing information and license metric (such as, without limitation, the license type) for all Products and Services and other items, all as may be amended from time to time by IQM. All prices, fees, charges etc. are stated in Euro’s excluding VAT.
1.27 “Products” means the IQM Software and including the SaaS Services.
1.28 “SaaS Services” means the subscription services provided by IQM, identified in the Order and that are Cloud hosted by a third-party service provider and made available to Customer (Group) over an ICT-network on a term-use basis, as may be amended by IQM from time to time. The SaaS Services provide cloud-based platform for critical messaging, notification, alarming and communication in the broadest sense. The SaaS is constructed from the IQM Software and third-party Host/Cloud services and hardware.
1.29 “Services” means any services provided or to be provided by or on behalf of IQM pursuant to this Agreement, as identified in an Order.
1.30 “Service Levels” means the service levels as included this Agreement.
1.31 “Standard Support” means the provision of technical support for issues related to the performance of the IQM Software and reported by Customer or its End Users through a web-based ticket system, available 24x7x365 with a response time of maximum 4 hours. If IQM, at its sole discretion, determines that an issue is solely caused by a malfunction of the IQM Software, (or SaaS) IQM will resolve the issue free of charge. In all other situations, IQM’s or (if appropriate) Partner’s assistance in remediating the issues identified can be charged to Customer. This Standard Support includes Software Assurance (SWA). This SWA provides the Customer the right to receive and use the latest software version, bug fixing or hot fixing. The use of a supported software version is mandatory to claim any right related to quality and operation of the SaaS Services as well as any service and support.
1.32 “Start Date” means, unless agreed otherwise in the Order, the start of the invoicing of the SaaS Services. The Start Date starts the first day of the next month of the Effective Date.
1.33 “Subscription Period” means the period(s) specified in an Order during which Customer will have access to and use of the SaaS Services and/or Support Services, as the same may be renewed or extended in accordance with the applicable Order and as described in Section 3.7.
1.34 “Support Services” means any Standard Support or other services in support of the SaaS Services provided or to be provided by or on behalf of IQM pursuant to this Agreement, as identified in an Order.
1.35 “Third Party Software” means, if appropriate, the software referred to as redistributable code that is licensed to IQM by third party licensors for redistribution with the IQM Software. The redistributable code is the property of IQM’s licensors, and protected under international copyright, trade secret or other proprietary rights laws, and international treaties.
1.36 “Term” means any initial term or any renewal term of the Agreement as mutually agreed to by the parties in writing from time to time.
2.1 This Agreement shall govern all quotes, and Orders between Customer and IQM for SaaS Services. For all other Products and Services. The Agreement is also applicable to the negotiations regarding such quotes or agreements, even if said negotiations do not result in the conclusion of an Agreement and will accordingly apply to all future trading relationships with IQM, even if they are not communicated as new. IQM may from time to time amend the Agreement, latest version will be made available on the website. By using the SaaS Services, Customer agrees to be bound unconditionally by the terms and conditions of this Agreement.
2.2 The applicability of any general terms and conditions of Customer, Partner or End User to any quote, Order or other agreement, said negotiations or the relationship in general, is hereby excluded. Regardless of their form, deviations from or supplements to the Agreement shall only apply if parties explicitly agree to the same in writing.
3 SAAS SERVICES, RESTRICTIONS AND TERM
3.1 Provision of SaaS Services.
Subject to the terms, restrictions and limitations set forth in the Agreement, IQM hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, terminable license to access and use (and to permit its End Users to access and use) the SaaS Services during the Subscription Period in accordance with the Documentation, intended use and purpose, solely for Customer Group’s or End User internal business operations. Customer agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by IQM with respect to future functionality or features.
3.2 Required software and or hardware.
Customer acknowledges that use of the SaaS Services may require the installation and use of third-party software and or hardware products, secure connectivity and services as a pre-requisite for using the SaaS Services, as specified in the Documentation and/or as advised by IQM or Partner from time to time (“Required Software and or hardware”). Customer agrees to provide such connectivity, install such Required Software and or hardware, including any required updates if and when available at its own cost.
3.3 End Users.
Customer is responsible for all activities conducted by it or through the accounts of its End Users on the SaaS Services. Customer shall ensure that the End Users is informed, understands and shall abide all pre-requisites to ensure a supported use of the SaaS Services, the terms of this Agreement including DPA. Any breach by an End User will be deemed to be a breach by Customer. IQM may terminate or suspend any End User’s access to the SaaS Services for any breach.
Customer and its End Users shall not, and shall not permit any third party to:
(i) copy or republish, in whole or partially, the SaaS Services or Software in any way,
(ii) make the SaaS Services available to any person other than properly authorized End Users, (iii) use or access the SaaS Services to provide service bureau, time-sharing or other computer hosting services to third parties,
(iv) modify or create derivative works based upon the SaaS Services or Documentation,
(v) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the software used to provide the SaaS Services or in the Documentation,
(vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the SaaS Services, except and only to the extent such activity is expressly permitted by applicable law, or
(vii) access the SaaS Services or use the Documentation in order to build a similar product or competitive product. Subject to the limited licenses granted herein, IQM shall own all right, title and interest in and to the Software, services, Documentation, and other deliverables provided under this Agreement, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein. Customer agrees to assign all right, title and interest it may have in the foregoing to IQM.
3.5 Service Level Agreement.
IQM implements and provides a SLA (type A, 24x7x365 with a maximum response time of 4 hours) included in the Standard Support of the SaaS Services. This SLA is based on a Fair Usage Policy as part of its Support Services to help ensure that all End Customers enjoy high levels of service and in order to protect IQM’s network and Support Services against misuse and abuse.
3.6 Customer feedback.
IQM may from time to time request Customer to provide certain information or content by which the End User can be identified when using the SaaS Services including the control panel, and the registration functionality that are compatible with the IQM Software. IQM will only use and protect such information in accordance with the DPA. IQM shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the SaaS Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including End Users, relating to the operation of the SaaS Services.
3.7 Term and Subscription Period.
The term of this Agreement shall begin on the Start Date and continues until the stated Subscription Period in all Orders has expired or has otherwise been terminated. The Subscription Period shall commence on the Start Date and continue for an initial term of thirty-six (36) or sixty (60) consecutive months. If not terminated sooner for cause pursuant to Section 10.1, it shall automatically renew at the end of the initial term and shall thereafter continue for successive annual periods until terminated by either party upon not less than ninety (90) days’ written notice prior to the expiration of the then current renewal term.
3.8 Upscaling & downscaling.
The Client can scale up the number of licenses indefinitely during the term of the Agreement. The costs of the licenses will be charged per the first month that the licenses are scaled up.
During the first 12 months of the Agreement, the Client can reduce/down scale the number of licenses once per quarter with a maximum amount of 10% of the total license value per contract year. From 13 months, the Client is able to scale down the licenses quarterly with a maximum amount of 25% of the total license value per contract year and a maximum of 65% over the whole contract period.
The Client is entitled to change the type of licenses quarterly a year as long as the total contractual license value remains the same. If the value of the new desired licenses is higher than the existing licenses, the difference in the amount will be charged monthly to the Client during the remaining term of the agreement. IQ Messenger is entitled to charge administration costs of EUR 250.00 excluding VAT in the aforementioned situations of license change and down scaling.
3.9 Updates and upgrades.
IQM will provide periodic updates and upgrades to the latest supported version of the IQM SaaS Service. The execution of this upgrade will be done remotely and on request and planning by the Customer and IQM. The Customer will provide onsite support for local inspection to ensure that the update/upgrade is successful and all IQM interfaces and application are operational.
IQM is, in case of no or late upgrade request by the Customer, entitled to an enforced upgrade of the IQM Software (SaaS Service) to prevent the operational IQM Software SaaS Service) to become outdated and or unsupported. This update or upgrade will be announced to the Customer.
Updates and upgrades may cause a temporary downtime/non availability of the SaaS Service;
4 CUSTOMER RESPONSIBILITIES
Customer shall provide compliance to third-party pre-requisite software and hardware products, connectivity and services, commercially reasonable information and assistance to IQM to enable IQM to deliver the SaaS Services. Customer acknowledges that IQM’s ability to deliver the SaaS Services in the manner provided in this Agreement may depend upon the accuracy, completeness and timeliness of such pre-requisite products and services, information and assistance.
4.2 Compliance with Laws.
Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the SaaS Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer acknowledges that IQM exercises no control over the content of the information transmitted by Customer through the SaaS Services including the Customer Data. Customer shall and ensure the End Users shall not upload, post, reproduce or distribute any (illegal) information, software or other material protected by copyright, trade secret, trademark, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
4.3 Acceptable Use and ID Information.
(i) notify IQM immediately of any unauthorized use of any password or user id or any other known or suspected breach of security,
(ii) report to IQM immediately and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by Customer, Partner or any End User, and
(ii) not provide false identity information to gain access to or use the SaaS Services.
4.4 Administrator Access.
Customer shall be solely responsible for the acts and omissions of its End Users with an administrator role. IQM shall not be liable for any loss of data or functionality caused directly or indirectly by the (administrator) End Users.
4.5 Customer Data.
Except for IQM’s obligations described in Section 6 and Section 11, Customer shall have sole responsibility for:
(i) the accuracy, quality, and legality of the Customer Data and the means by which Customer acquired the Customer Data and the right to provide the Customer Data for the purposes of this Agreement (including ensuring the receipt of all permissions from individuals and other third parties as may be necessary in order to provide the Customer Data for the purposes contemplated in this Agreement);
(ii) the security and confidentiality of Customer’s and its End Users’ account information;
(iii) maintaining a back-up of all Customer Data;
(iv) preventing unauthorized access to, or use of, the Services, and notify IQM promptly of any such unauthorized access or use;
(v) collecting, inputting and updating all Customer Data stored on the Host,
(vi) ensuring that the Customer Data does not include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party or contain anything that is obscene, defamatory, harassing, offensive or malicious, and
(vii) collecting and handling all Customer Data in compliance with all applicable Data Protection Laws, rules, and regulations.
4.6 License from Customer.
Subject to the terms and conditions of this Agreement, Customer shall grant to IQM a limited, non-exclusive license, to copy, store, configure, perform, display and transmit Customer Data to provide the SaaS Services to Customer in accordance with the DPA. IQM is allowed to use the Customer Data for (scientific) research, product development, error analysis, troubleshooting, compliance with regulations and laws to improve the SaaS Services. Only anonymized information can be used for other purposes.
4.7 Ownership and Restrictions.
Customer retains ownership and intellectual property rights in and to its Customer Data, IQM or its licensors retain all ownership and intellectual property rights to the SaaS and other services, Software programs, source code, and anything developed and delivered under the Agreement.
5 FEES, PAYMENT AND TAXES.
5.1 Fees and Adjustments.
During the Term, starting from the Start Date, Customer agrees to pay the monthly fee for the SaaS Services and the Support Service, all as specified in the Order (or if no order was agreed, the then current Pricebook, will apply). During the Term, IQM may from time to time adjust the Fees including recurring (SaaS) Fees and pass on cost increases and exceeding of Fair Use Policy which were not foreseen at the time when the Agreement was concluded. A yearly price indexation is applicable and made available no later then 3 months in advance.
5.2 Payment and Payment term.
Customer shall pay an invoice from IQM within 30 days from the date of invoice. IQM shall issue its invoice when:
(a) it receives the Order from Customer and the Start Date of the SaaS Services.
(b) the agreed (periodic) invoice date(s) has (have) elapsed. A late payment charge of the lesser of 2,5% per month or the highest interest rate allowed by applicable law will be charged upon all past due amounts hereunder.
If any amounts owing by Customer under this Agreement are thirty (30) or more days overdue, IQM may, without limiting IQM’s rights and remedies, suspend any or all Services to Customer and/or limit access to Products until such amounts are paid in full. IQM will give at least ten (10) days prior notice that Customer’s account is overdue before any suspension. IQM shall not be responsible or liable for any cost, inconvenience, liability or damage suffered by Customer due to the suspension.
5.4 Taxes and Duties.
Prices to Customer do not include taxes, duties, tariffs, handling fees, or other such assessments of any nature. Whenever imposed, such assessments are payable by Customer. Income or other taxes that are required to be paid or withheld by Customer or IQM under the laws of jurisdictions other than The Netherlands, in connection with the Fees paid by Customer hereunder, are the sole obligation of Customer and shall be exclusive of the Fees paid by Customer.
6 CONFIDENTIAL INFORMATION, TITLE AND COPYRIGHTS.
6.1 Confidential Information.
Each Disclosing Party shall maintain strict confidentiality with regard to any Confidential Information disclosed to the Receiving Party. It shall deploy such procedures with regard to Confidential Information that shall be no less restrictive than the strictest procedures used by it to protect its own confidential and proprietary information, but not less than reasonable care. Each party acknowledges that a breach of this obligation will constitute a material breach of the Agreement and will lead to liability on its part. Each party shall ensure that its personnel or (the personnel of) any subcontractors are advised of the confidential and proprietary nature of the Confidential Information and are bound in writing to confidentiality obligations no less strict than as set out in this Agreement. During the term of this Agreement, any Confidential Information disclosed will be protected for a period of three (3) years from date of disclosure (perpetually in the case of intellectual property), each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other party. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information and which are provided to the party hereunder.
During the Agreement and for one (1) year after termination of the Agreement Customer will not employ any of IQM’s persons involved with the services or otherwise have them perform work or negotiate in that context with these persons, except with IQM’s express prior written consent, which consent will not be withheld on unreasonable grounds.
Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information.
Customer acknowledges that the IQM Software (including, any enhancements, modifications, additions) contains confidential information of, are trade secrets of, and are proprietary to IQM and its licensors. Customer shall not assert any right, title or interest in the IQM Software or other materials provided to Customer under this Agreement, except for the limited license rights expressly granted to Customer in Section 3.
Customer shall not obscure or remove any copyright or other proprietary notice or legend contained on or included in the IQM Software and shall reproduce all such information on all copies made hereunder. Customer shall not, directly or indirectly, copy, disclose or distribute any Products, commercial or technical information of IQM provided with or in the IQM Software without the prior written consent of IQM, which consent may be withheld at IQM’s sole discretion.
7 LIMITED WARRANTIES.
7.1 Product Warranty.
Provided that Customer is not in breach of any of its obligations under this Agreement, IQM warrants from the Start Date that:
(i) IQM has validly entered in this Agreement and has the legal power to do so,
(ii) IQM will provide the SaaS Services in a professional manner consistent with general industry standards and that the SaaS Services will perform substantially in accordance with the Documentation and
(iii) the overall functionality of the SaaS Services will not materially decrease during the Subscription Period.
7.2 Disclaimer of Warranties.
IQM and its licensors make no warranty, representation or promise except as specifically set forth in this Agreement. To the fullest extent permitted by law, IQM does not guarantee that the SaaS Services will:
(i) be performed error-free or uninterrupted, or
(ii) that IQM will correct all SaaS Services errors, or
(iii) will satisfy Customer’s requirements. Customer acknowledges that IQM does not control the transfer of data over communications facilities, including the Internet, Cloud, (virtual private) connectivity and that the SaaS Services may be subject to limitations, outage, delays, loss or corruption of data, and other problems inherent in the use of such Cloud and communications facilities. This Section 7 sets forth the sole and exclusive warranty given by IQM (express or implied) with respect to the subject matter of this Agreement. Neither IQM nor any of its licensors or other suppliers warrant or guarantee that the operation of the SaaS Services will be uninterrupted, virus-free or error-free, nor shall IQM or any of its service providers be liable for unauthorized alteration, theft or destruction of Customer’s or any User’s data, files, or programs.
7.3 Excusive Remedy.
As Customer’s sole and exclusive remedy and IQM’s entire liability for any breach of the warranty set forth in Section 7.1, Customer’s exclusive remedy shall be as provided in Section 10.
7.4 Exclusions from Warranty.
The limited warranty is void if non-conformance of the SaaS Services results from or is related to the:
1. factors outside of our reasonable control (for example, natural disaster, epidemic, war, acts of terrorism, riots, government action, or a network, electrical power or device failure outside our control);
2. use of hardware, or software not provided or not approved (as recommended in the Documentation) by or on behalf of IQM, including, but not limited to, issues from inadequate bandwidth, high latency, outage, loss or corruption of data or related to third-party software or services resulting;
3. use of IQM Software no longer supported or after advice was given to modify your use of the IQM Software and provided Customer did not modify its use as advised.
4. unauthorized action or lack of action when required, or from Customer’s employees, agents, contractors, or vendors, or anyone gaining access to IQM’s network by means of Customer’s passwords or equipment, or otherwise resulting from a failure attributable to Customer to follow appropriate security practices;
5. Customer’s failure to adhere to any required configurations, install Required Software, use supported platforms, follow any policies for acceptable use, or Customer’s use of the SaaS Services in a manner inconsistent with IQM’s published guidance;
6. Customer’s faulty input, instructions, or arguments (for example, requests to access files that do not exist);
7. Customer’s attempts to perform operations that are not permitted or supported by the Documentation; or
8. Products or Services for which Customer at the time of the claim has not or not fully paid;
9. Customer or BUSINESS PARTNER uses incorrect handling, configuration and or training which causes incorrect operation, outage, etc.
8 LIMITATION OF LIABILITY.
8.1 Without prejudice to section 8.2 below, to the maximum extent permitted by law, IQM’S aggregate liability arising from or relating to the license, products or services provided under this Agreement, irrespective of the nature of the claim, is limited to the fees actually paid over the contract year (exclusive VAT) in which the damage causing event or, in case of a series of related events, the first damage causing event occurred of commenced.
8.2 In no event shall IQM or its licensors be liable for any special, incidental, indirect, punitive or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss). It is specially understood and agreed that IQM excludes liability for any failure by IQM to meet agreed service levels for the SaaS Service as a result of network intrusions, outage, loss or decreased performance, availability and connectivity and/or incidents attributable to critical IT service providers. The above limitation as set out in clause 8.1 or exclusion shall not apply in so far as the damage is caused by:
(I) Gross negligence or willful misconduct.
9 INDEMNITIES AND Customer OBLIGATIONS
9.1 Infringement Indemnity:
Subject to Section 9.2 and the restrictions and limitations set forth herein, IQM shall indemnify and hold harmless Customer from and against any costs or demands awarded against Customer by a court of competent jurisdiction pursuant to a final judgment as a result of a claim or action by a third party against Customer that the SaaS Services or Documentation infringes a registered copyright, trademark, valid patent or other intellectual property right of a third party. The foregoing indemnity is conditioned on Customer:
A. promptly notifying IQM of such claim;
B. permitting IQM to control the response thereto and the defense thereof, including any agreement relating to the settlement thereof, and
C. assisting and cooperating with IQM in the defense or settlement thereof. Customer may participate, at its own expense, in such defense directly or through counsel of its choice on a monitoring, noncontrolling basis. IQM shall obtain Customer’s prior written consent to any compromise or settlement of any claim which would require an admission of liability on the part of Customer, or which would subject Customer to any injunction or other equitable relief.
9.2 Customer Indemnity.
If a third party makes a claim against IQM that the Customer Data infringes any patent, copyright or trademark, or misappropriates any trade secret, Customer shall defend IQM and its directors, officers and employees against the claim at Customer’s expense and Customer shall pay all Loss finally awarded against such parties or agreed to in a written settlement agreement signed by Customer, to the extent arising from the claim.
IQM shall have no obligation under Section 9.1, and otherwise will have no liability for, any claim of infringement caused or alleged to be caused by:
A. the Customer Content;
B. modification of the SaaS Services not authorized by IQM, or;
C. use of the SaaS Services other than in accordance with the Documentation and this Agreement.
9.4 IQM may, at its sole option and expense, procure for Customer the right to continue use of the SaaS Services, modify the SaaS Services in a manner that does not materially impair the functionality, or terminate the subscription/ Term and repay to Customer any amount paid by Customer with respect to the subscription following the termination date.
9.5 Exclusive Remedy: Without prejudice to section 9.3, the foregoing Sections 9.1 and 9.2 set forth the exclusive remedy and entire liability and obligation of IQM with respect to third party claims against Customer alleging intellectual property infringement or misappropriation.
9.6 Injunctions. In the event that a claim of infringement of a valid software patent or copyright is made against IQM or Customer or if IQM reasonably believes that such a claim will be made, IQM, at its option and in lieu of indemnification, may:
A. procure for Customer the right to use the IQM Software without patent or copyright infringement;
B. modify the IQM Software to make it non-infringing;
C. replace the IQM Software with substantially equivalent software that is non-infringing; or
D. direct Customer to cease use of the IQM Software, and refund to Customer the aggregate fees received for such IQM Software that are the subject of such a claim.
9.7 Customer Obligations.
Customer is solely responsible for:
A. its use of the SaaS Services, including ensuring a level of security appropriate to the risk in respect of the Customer Data, securing its account authentication credentials, protecting the security of Customer personal data when in transit to and from the SaaS Services, taking appropriate steps to securely encrypt and/or backup any Customer personal data uploaded to the SaaS Services, and properly configuring the SaaS Services and using available features and functionalities to maintain appropriate security in light of the nature of the Customer personal data processed by Customer’s use of the SaaS Services; and
B. the Customer Data that Customer (Group) elects to store or transfer outside of IQM’s and (if appropriate) its sub-processors’ systems (for example, offline or on-premise storage). IQM has no obligation to protect such data; and
C. reviewing the security measures and evaluating for itself whether the SaaS Services and the security measures and IQM’s commitments in respect of data processing will meet Customer’s needs, including with respect to any obligations of Customer under data protection laws, as applicable.
D. not allowed to give any third parties/agents access to Products and/or SaaS Services provided to the Customer which are hosted by or on behalf of IQM. Customer shall, during the Term, allocate sufficient third party software licenses as required to run (as appropriate) the IQM Software or the Software as a Service in accordance with the Documentation.
10.1 Termination for Breach.
Each party will have the right to terminate this Agreement (in whole or in part) at any time by giving written notice to the other party if;
(i) the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof;
(ii) the other party breaches any terms of this Agreement in such manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement,
(iii) if any of the following events occur:
(a) the presentation of a petition for winding up
(b) is the subject of an order or an effective resolution is passed for winding up;
(c) the application for an order or application for the appointment of a receiver (including an administrative receiver), administrator, trustee or similar officer in respect thereof;
(d) if a receiver, administrative receiver, administrator or similar office is appointed over all or any part of the assets or undertaking;
(e) making a composition with its creditors generally or an assignment for the benefit of its creditors or other similar arrangement;
(f) goes into liquidation; or
(g) ceasing, or threatening to cease, to carry on business.
10.2 Suspension for Non-Payment. IQM reserves the right to suspend delivery of the SaaS Services if Customer fails to timely pay any amounts due to IQM under the Agreement, but only after IQM notifies Customer of such failure and such failure continues for thirty (30) days or more after the payment due date. Suspension of the SaaS Services shall not release Customer of its payment obligations under this Agreement. Customer agrees that IQM shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to suspension of the SaaS Services resulting from Customer’s non-payment.
10.3 Suspension for Ongoing Harm.
IQM reserves the right to suspend delivery of the SaaS Services if IQM reasonably concludes that Customer or an End User’s use of the SaaS Services is causing immediate and ongoing harm to IQM or others. In the extraordinary case that IQM suspends delivery of the SaaS Services, IQM shall immediately notify Customer of the suspension and the parties shall diligently attempt to resolve the issue. IQM shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the SaaS Services in accordance with this Section 10.3. Nothing in this Section 10.3. will limit IQM’s rights under Section 10.5 below.
10.4 Exclusive Reasons for Termination.
To the extent permitted by law, the parties waive any right to terminate, rescind, or otherwise end the Agreement, on grounds other than those set out herein.
10.5 Effect of Termination.
A. Upon expiration or termination of this Agreement IQM shall immediately cease providing the SaaS Services and all usage rights granted under this Agreement shall terminate.
B. If IQM terminates this Agreement due to a material, uncured breach by Customer, then Customer shall immediately pay to IQM or Partner (if purchased through a Partner) all amounts then due or to become due during any Order issued under. If Customer terminates this Agreement due to an uncured material breach by IQM, then IQM shall immediately refund to Customer all pre-paid amounts for any unperformed SaaS Services scheduled to be delivered for the remainder of the (Initial) Subscription Period.
C. Upon termination of this Agreement and upon subsequent written request by the disclosing party, the receiving party of tangible Confidential Information shall promptly return such information or destroy such information and provide written certification of such destruction, provided that the receiving party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the parties.
10.6 Termination of Orders.
All Orders issued under this Agreement shall terminate immediately on termination of this Agreement in accordance with this section 10, unless agreed otherwise.
11 PERSONAL DATA AND PRIVACY
The parties will comply with Data Protection Laws relating to IQM’s processing of Customer GROUP personal data as part of the SaaS Services provided pursuant to this Agreement. Parties may further detail the aforementioned in a Data Processor Agreement which, if agreed between the parties, will form part of this Agreement as a separate Exhibit. If no separate Data Processor Agreement is executed, this Agreement including the DPA of
Annex 2 will be considered the data processing agreement as defined under Data Protection Laws.
12.1 Non-Exclusive Service.
Customer acknowledges that SaaS Services are provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict IQM’s ability to provide the SaaS Services or other technology, including any features or functionality first developed for Customer, to other parties.
12.2 License administration and Audit.
Customer shall keep complete and accurate books and records of its use of the SaaS Services to demonstrate its compliance with this Agreement. Further, IQM may audit Customer’s use of the SaaS Services in order to verify compliance with this Agreement.
Any notice required or permitted to be given by Customer hereunder shall be in writing and delivered by courier or overnight delivery services, by email (with a read-receipt) or by certified mail, and in each instance will be deemed given upon receipt. Any such notice shall be delivered or sent to IQM, Pieter Zeemanweg 57, 3316 GZ, Dordrecht, The Netherlands.
12.4 Governing Law and Disputes.
All matters arising from or connected with this Agreement, are governed by Dutch law, excluding the United Nations Convention on the International Sale of Goods (“CISG”), conflict of law rules and choice of law principles that provide otherwise.
Any dispute between Customer and IQM regarding this Agreement shall exclusively be submitted to the courts of Rotterdam in The Netherlands.
12.5 Legal Effect.
This Agreement describes certain legal rights. You may have other rights under the laws of your state or country. You may also have rights with respect to the party from whom you acquired the IQM Software. This Agreement does not change your rights under the laws of your state or country if the laws of your state or country do not permit it to do so.
Customer may not assign any rights, duties, obligations or privileges under this Agreement without the prior written consent of the other party. Furthermore, Customer may not assign (or pledge) a claim against IQM in a way that is valid under applicable property law without the prior written consent of IQM. A change of control or ownership shall not be deemed to be an assignment under this Section so long as the new owner has expressly assumed in writing all of the duties and obligations of the assignor and further provided, that Customer shall remain liable and responsible to IQM (and its licensors) for the performance and observance of all such duties and obligations.
Should any part or provision of this Agreement be held unenforceable or in conflict with the law of any jurisdiction, the validity of the remaining parts or provisions shall not be affected by such holding.
12.8 Limitation on Effect of Waiver.
Failure on the part of IQM to exercise, or IQM’s delay in exercising, any of IQM’s rights hereunder shall not be construed as a waiver or waiver of other breaches of this Agreement. Any single or partial exercise by a party of any right shall not preclude any other or future exercise thereof or the exercise of any other right in the Agreement.
12.9 Entire Agreement and Amendments.
The Agreement contains the entire understanding of the parties with respect to the transactions contemplated and supersedes any prior agreements or understandings among the parties with respect to the subject matter hereof. Except as expressly agreed otherwise in this Agreement, the provisions of the Agreement may be amended only in writing signed by authorized representatives of both parties.
12.10 Export Law Assurances.
Customer acknowledges that it is familiar and shall comply with all domestic and international export laws and regulations that apply to the IQM Software. These laws include restrictions on destinations, territory and use. Customer hereby expressly agrees to defend, hold harmless and indemnify IQM, its directors, officers, and employees, from any claim, suit or dispute alleging that Customer has exported the IQM Software in violation of such laws.
The headings in this Agreement are for convenience of the parties only. They do not constitute a portion of this Agreement and shall not be used in interpreting the construction of this Agreement.
12.12 Third Party Beneficiary.
Customer hereby agrees that the licensors of Third Party Software shall be considered third party beneficiaries of this Agreement and shall be entitled to bring a direct action against Customer in the event of breach of any applicable provisions of this Agreement, pursuant to the terms and conditions of this Agreement.
12.13 Force Majeure.
Neither party shall be in default if failure to perform any obligation hereunder is caused solely by unforeseen supervening conditions beyond that party’s reasonable control, which could not have been prevented by the non-performing party’s reasonable precautions, commercially accepted processes or substitute services, including natural disaster, civil disturbances, collective illness, strikes and labor disputes and other factors outside of our reasonable control as mentioned in 7.4.1.
The rights and obligations of the parties which by their nature extend beyond the expiration or termination of the Agreement shall survive termination or expiry of this Agreement for any reason.
12.15 Negation of Agency and Similar Relationships.
Nothing contained in this Agreement shall be deemed to create an agency, joint venture or partnership relationship.
Exhibit 1, Fair Use Policy Services Scope.
This document outlines the fair use policy of the support services offered by IQ Messenger B.V. or any of its affiliates (“IQM”, “we” or “our”) for IQM’s Cloud SaaS Services (“Support Services”) and accompanies the (SaaS) Agreement we entered into with you (“Customer”, “you” or “your”). Capitalized terms used in this Fair Use Policy that are not defined herein have the meanings given to them in the Agreement. This Fair Use Policy solely governs the Support Services.
General: This Fair Use Policy seeks to ensure:
– an optimal and fair, user experience for all our customers. IQM is committed to an up-front, published, simple, transparent, and no-nonsense subscription pricing model. Pricing for IQM’s products and/or services are available on request. IQM uses all commercially reasonable efforts to ensure its Pricebook is complete and accurate. We use all commercially reasonable methods to prevent any extra fees/hidden costs when the Support Services are used reasonably and normally. However, to maintain that position (the lack of hidden charges) we need to ensure that the provision of the Support Services is transparent and optimal, as well as fair to all our customers.
– a reasonable and average use of IQM SaaS Services, ICT (Cloud) recourses and Standard Support by the Customer/end user. It includes price increases of third-party (Cloud) services, technical ICT/Cloud elements like, but not exclusively, the use of VPN, CPU power, RAM capacity, amount of data exchange and storage, as well as operational factors like number of tickets/issues raised or number of times of IQM staff allocated to incident response. As IQM determines and possibly adjusts the scope of Fair Use based on reasonable and average use of the SaaS and Support Services, your entitlement, technical advances and the current price rate of all necessary IQM tools/resources.
IQM is ISO27001, NEN7510, ISO13485, CE medical class IIb and WDTM certified.
Urgent and Extreme Cases.
In an urgent or extreme case, for example where Support Services are likely to be significantly impacted, or where we believe your system or ours is under attack (a DDOS – denial of service attack for instance) or where we believe your system or ours has been compromised (for example a hacker or potential a security breach) we may cease the delivery of the Support Services, or temporarily suspend your access to them. Before we do this, we will always contact you to discuss possible solutions. Furthermore we may, irrespective from an attack or breach, if your use of the Support Services continues to adversely affect (in all material respects) other users, or can reasonably be expected to do so, or is generating costs to us that are not normal when compared to other customers on the same support contract and pursuant to this Fair Use Policy, we may require you to execute a follow-up Order to compensate IQM for the increased efforts before continuing the delivery of the Support Services to you. Before we do this, we will always contact you to discuss in good faith possible solutions.