This agreement was last updated on 1 November 2023.
This Software as a Service (SaaS) Agreement (this “Agreement”) is by and between BeDataDriven B.V., a limited liability corporation whose principal place of business is Binckhorstlaan 36, The Hague (“Provider”) and the organization addressed in the quotation (“Customer”).
This Agreement is effective as on the day that the Quotation is signed or the date a Purchase Order is issued (the “Effective Date”).
Provider provides ActivityInfo, a data management platform (the “Platform”) which consists of technology hosted on Provider’s computers and accessed remotely, via the Internet. Provider also provides professional services related to implementation and configuration of the Platform. The parties have agreed that Provider will provide the Platform to Customer, as well as such professional services as the parties listed in the Quotation. Therefore, in consideration for the commitments set forth below, the adequacy of which consideration the parties hereby acknowledge, the parties agree as follows.
The following capitalized terms will have the following meanings whenever used in this Agreement.
- “Annual Period” means a 12-month period starting on the Effective Date.
- “Customer’s Partners” means any of Customer’s clients, partners or other third parties Customer gives access to the Platform, including without limitation such companies’ agents and employees.
- “Customer Data” means all information processed or stored through the SaaS by Customer or on Customer’s behalf. Customer data does not include payment records, credit cards or other information Customer uses to pay Provider, or other information and records related to Customer’s account, including without limitation identifying information related to Customer staff involved in payment or other management of such account.
- “Documentation” means Provider's standard manual related to use of the Platform, publicly available at activityinfo.org/support/docs/.
- “Privacy/Security Law” means privacy and security laws governing Provider’s handling of Customer Data (if any). For the avoidance of doubt, Privacy/Security Laws do not include laws applicable to Customer or its data to the extent not described in the preceding sentence.
- “Term” is defined in Section 12.1 below.
- “Technical contact” is a named individual who is entitled to contact the Helpdesk as defined in Section 2.3 below.
- “User” means any individual who has been invited to access a Customer’s database on the Platform on Customer’s behalf or through Customer’s account or passwords, whether authorized or not, including without limitation Customer's employees, contractors, Partners, or beneficiaries.
- A “Basic User” is any User who has been granted permissions only to view forms and reports or to add, edit, delete or export records.
- A “Full User” is a User who has been granted any permission beyond those listed in (9), such as the permission to design forms and databases, manage users, or access the audit log.
2 Access to the Platform
Use of the Platform: During the Term, Customer may access and use the Platform through the URL www.activityinfo.org.
Documentation. Provider will maintain Documentation for the Platform at activityinfo.org/support/docs/. Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the Platform.
Helpdesk. The Customer is entitled to technical support from the Provider’s Helpdesk for two or more individuals called Technical Contacts. Technical support includes supporting completion of a discrete task on the platform, answering questions about your account, or resolving defects in the Platform. Helpdesk requests must be submitted to firstname.lastname@example.org. The Customer shall provide the names and email addresses of the Technical Contacts at the beginning of the Term, but can change the role at any time. Only Technical Contacts are entitled to support from the Helpdesk. All other Users must direct questions to the Technical Contacts.
Changes to the Platform. The Organization accepts that the repair of defects and the release of updates to the Platform may introduce changes to functionality, layout, colors, language or any other user-visible aspect of the Platform without prior notice by the Provider and will not hold the Provider liable for any costs arising from the need to review, modify, (re)print or (re)distribute documentation, presentations or any other form of learning material, in digital or printed format, created and owned by the Organization or a third party.
3 Professional Services
Provision of Onboarding. Provider will make an Implementation Specialist available to the Customer for the number of hours specified in the Quotation. Customer is responsible for building and configuring the database, and our Specialist will walk you through the design process in a series of guided configuration sessions where we provide instruction, resources, and advice to help you create a system that works for your needs.
Customer's representatives. The Customer may designate its representatives to work with the Implementation Specialist, they need not be the same as the designated Technical contacts.
4 Fees & Payment
Annual subscription fee. Customer shall pay Provider the annual fee specified in the Quotation for access to the Platform for up to the number of Full Users, Basic Users, Technical Contacts.
Prepayment. The Annual Subscription fee and onboarding fees are payable in full at the beginning of each Annual Period.
Invoices, No Refunds. Provider’s invoices are due within 30 days of issuance. Provider will not be required to refund Subscription Fees or Professional Service Fees under any circumstances.
Taxes. Amounts due under this Agreement are payable to Provider without deduction and are net of any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value-added tax, whether or not withheld at the source (collectively, “VAT”). Except as forbidden by applicable law, Provider may require that Customer submit applicable VAT to Provider, or provide a valid European VAT number if the billing address is in a EU member state. However, the preceding sentence does not apply to the extent that Customer is tax exempt, provided it gives Provider a valid tax exemption certificate within 30 days of the Effective Date. Provider’s failure to include any applicable tax in an invoice will not waive or dismiss the parties’ rights or obligations pursuant to this Section 5.3. If applicable law requires withholding or deduction of VAT or any other tax or duty, Customer shall separately pay Provider the withheld or deducted amount, over and above fees due.
5 Customer Data
Use of Customer Data. Provider shall not: (a) access, process, or otherwise use Customer Data other than as necessary to facilitate the SaaS; or (b) give Customer Data access to any third party, except Provider’s subcontractors that have a need for such access to facilitate the SaaS and are subject to a reasonable written agreement governing the use and security of Customer Data. Further, Provider: (c) shall exercise reasonable efforts to prevent unauthorized disclosure or exposure of Customer Data.
Statutory Special Terms. In the event that Customer wishes to use the Platform for collecting, storing or processing data which is subject to the EU General Data Protection Regulation (GDPR), the US Health Insurance Portability and Accountability Act of 1996 (HIPAA), or any other national or regional legislation, the Customer must notify the Provider and the parties will execute a Data Processing Agreement (DPA) specifying the nature of the data and roles and responsibilities of each party.
Required Disclosure. Notwithstanding the provisions above of this Article 6, Provider may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Provider shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
6 Customer's Responsibilties and Restrictions
Unauthorized Access. Customers shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting its passwords and other log-in information. Customer shall notify Provider immediately of any known or suspected unauthorized use of the Platform or breach of its security and shall use best efforts to stop said breach.
Customer's Partners & Other Users; Platform Access. Customer is responsible and liable for: (a) Customer's Partners’ and other Users’ use of the Platform, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of this Agreement applicable to Customer; and (b) any use of the Platform through Customer’s account, whether authorized or unauthorized.
7 Intellectual Property
IP Rights of Customer Data in the Platform. Customer retains all right, title, and interest in any Customer Data uploaded to the platform, as well as design of any reports, or the results thereof.
IP Rights in the Platform. Provider retains all right, title, and interest in and to the ActivityInfo Platform, including without limitation all software used to provide the Platform and all graphics, user interfaces, logos, and trademarks reproduced through the Platform. This Agreement does not grant Customer any intellectual property license or rights in or to the Platform or any of its components, except to the limited extent that this Agreement specifically sets forth Customer license rights to Documentation. Customer recognizes that the Platform and its components are protected by copyright and other laws.
Documentation. Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the Platform.
8 Service Level Agreement (SLA)
During the Term of this Agreement, the Provider will provide a Monthly Uptime Percentage of the Platform to the Organization of at least 99.5% (the “Service Level Objective” or “SLO”). For any calendar month when the availability falls below the Service Level Objective as measured by Provider’s external Monitoring Service, the Organization may apply to receive a Financial Credit. The following definitions are used in this Service Level Objective:
- ‘Downtime’ means that the Platform does not respond to requests of the Monitoring Service;
- ‘Downtime Period’ means a period of five consecutive minutes of Downtime. Intermittent Downtime for a period of less than five minutes will not be counted towards any Downtime Periods.
- ‘Monthly Uptime Percentage’ means the total number of minutes in a month, minus the number of minutes of Downtime suffered from all Downtime Periods in a month, divided by the total number of minutes in a month.
- ‘Monitoring Service’ means the third party service which the Provider uses to measure Downtime of the Platform and which publishes its results at the following URL: https://status.activityinfo.org
- ‘Financial Credit’ is a percentage of the monthly equivalent of the service fee to be refunded to the Organization. If the Monthly Uptime Percentage is between 99.0% to 99.5%, the Financial Credit willl be 10%. Between 95.0% to 99.0%, the Financial Credit will be 25%. For a Monthly Uptime Percentage of less than 95%, the credit will be 50%.
The Organization must submit an application for a Financial Credit to the Helpdesk within thirty (30) days from the end of the calendar month for which the Organization is eligible to receive a Financial Credit.
9 Warranties and Representations
- Provider warrants that the Platform will perform materially as described in its Documentation. Customer acknowledges that complex software is never wholly free from defects and the Provider gives no warranty or representation that the Platform will be wholly free from defects.
- Provider does not warrant or represent that the Platform will be compatible with any application, program or software not specifically identified as compatible with the Platform in the Documentation.
- Provider warrants that it will perform Professional Services in a professional and workmanlike manner.
- Provider has no obligation to indemnify Customer against third-party litigation.
- Customer warrants it has and will collect the Customer Data in compliance with all applicable laws, including without limitation laws on privacy, security, and disclosure of personal information;
- Customer warrants it has and will obtain such consents as are required by applicable law for Provider to access and process the Customer Data as authorized by to this Agreement.
10 Limitation of Liability
In no event will the Provider be liable for damage of any nature whatsoever caused by the Provider’s reliance on incorrect and/or incomplete information supplied by the Customer.
Provider’s cumulative liability arising out of or related to this Agreement will not exceed the fees payable to Provider pursuant to this Agreement in the current Annual Period.
Provider’s liability is limited to Direct Damage, which is exclusively understood to mean: (a) reasonable costs for determining the cause and extent of the damage, (b) reasonable costs incurred to remedy the defective performance of the Provider comply with the agreement, insofar as these can be attributed to the Provider, and (c) reasonable costs incurred to prevent or limit damage, insofar as the Customer demonstrates that these costs have led to a limitation of Direct Damage as referred to in this section.
In no event will Provider be liable for lost profits or loss of business or for any indirect, special, consequential, incidental, or punitive damages arising out of this Agreement.
Contrary to the statutory limitation periods, the limitation period for all claims and defenses against the Provider in the performance of an agreement is one year.
11 Term and termination
Term. The term of this Agreement (the “Term”) will commence on the Effective Date and remain in effect for one year.
Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure. If the Agreement is terminated for cause by the Customer, then the Customer is entitled to a refund of any Subscription Fees for the current Annual Period, prorated by the number of months remaining in the Annual Period.
Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the Platform. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 8 (Intellectual Property), and 11 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
Promptly after termination of this Agreement, Provider shall erase all Customer Data in Provider’s possession or control, including without limitation in the possession of subcontractors. In erasing Customer Data as required by this Agreement, Provider shall leave no data readable, decipherable or recoverable on its computers or other media or those of its subcontractors.
Notices. Provider may send notices pursuant to this Agreement to Customer’s email address provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to email@example.com, and such notices will be deemed received 72 hours after they are sent.
Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by epidemics, acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, government orders responding to any of the foregoing, or other causes beyond the performing party’s reasonable control.
Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. If a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
Choice of Law & Jurisdiction. All disputes arising out of or in connection with this agreement will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court” or “NCC District Court”), to the exclusion of the jurisdiction of any other courts. An action for interim measures, including protective measures, available under Dutch law may be brought in the NCC's Court in Summary Proceedings (CSP) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (“Netherlands Commercial Court of Appeal” or “NCCA”). The NCC Rules of Procedure apply.
Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications. Amendment. This Agreement may not be amended except through a written agreement by authorized representatives of each party.