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General terms and conditions of use of EMAsphere solutions
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EMAsphere S.A.
Rue du Bosquet, 9 - 1348 Louvain La Neuve, Belgium
BCE 0538.597.349
Article 1 - Scope
These general terms and conditions of use (hereinafter, "T&Cs") apply to any order placed by the Client with EMAsphere and to any use of the Solution. The choice of Applications and the associated prices are specified in the Order Form. Unless otherwise expressly agreed and signed on the Order Form, these T&Cs exclude all other general and/or special terms and conditions of the Client. By signing the Order Form, the Client's representative confirms that they have the necessary authorisations and powers to validly bind the legal entity they represent.
Article 2 - Definitions
The terms beginning with a capital letter are defined as follows:
- "Order Form": means the order form signed by the Client.
- "T&Cs": means these general terms and conditions of use of the Solution.
- "Client": means the natural or legal person who has entered into a Contract.
- "Contract": means the contractual set formed by the Order Form and the T&Cs.
- "Data": means all data (including financial, accounting or other) managed within the Solution.
- "Intellectual Property Rights": means patents, plans, models, designs, copyrights, software rights, data rights, trademarks, service marks, know-how, domain names, trade names (registered or not, including any registration applications related to said rights) and generally any similar rights including extensions and renewals, worldwide.
- "EMAsphere": means EMAsphere S.A., or any legal successor.
- "Platform": means the "cloud" platform accessible via https://ema.emasphere.com or any other URL specified by EMAsphere for that purpose.
- "Services": means consultancy services that may be provided by EMAsphere.
- "Application Services": means the SaaS functionalities provided by EMAsphere to Users via the Platform.
- "Solution": means the whole formed by access to the Platform and use of the Application Services.
- "User": means any person under the Client’s authority (employee, representative, agent, etc.) who is authorised to access the Solution.
Article 3 - Purpose
The purpose of the T&Cs is to define the terms and conditions applicable to the Solution. In consideration of payment, the Provider grants the Client, who accepts:
- A right of access to the Platform under the conditions set out below;
- A right to use the Application Services, support and updates;
- A set of Services as defined below, including data hosting.
Article 4 – Invoicing and Payments
4.1. Pricing
The applicable fees for the use of the Platform and Application Services are specified in the Order Form. All amounts are stated exclusive of tax (net of VAT).
4.2. Payment Terms
Unless otherwise agreed, invoices must be paid within thirty (30) days from the date of issue.
4.3. Payment
Unless otherwise agreed, execution of an Order Form by EMAsphere is subject to advance payment.
4.4. Indexation
EMAsphere reserves the right, each year on the anniversary of the Order Form’s effective date—regardless of the Contract duration—to adjust its rates by referencing the consumer price index published by the SPF Economie.
4.5. Non-payment
In the event of non-payment, partial payment, or late payment, and without prejudice to any other remedy, EMAsphere is entitled to suspend access to the Solution and/or any service provision until full and final payment has been made, without liability for the consequences of such suspension.
4.6. Late Payment Penalties
Any overdue amount shall automatically and without prior formal notice incur late payment interest at a contractual rate of ten percent (10%) per annum until full payment is made. In addition, EMAsphere is entitled to claim a fixed compensation equal to fifteen percent (15%) of the outstanding amounts.
4.7. Billing Address
In the event of a change in billing address, the Client shall inform EMAsphere immediately; EMAsphere cannot be held liable for any damage resulting from delayed notification by the Client.
4.8. Volume-Based Pricing Adjustment
A high volume of data may result in additional costs related to storage, technical infrastructure, and platform performance.
In using the Solution, the Client acknowledges that the volume of data integrated and processed within EMAsphere's platform may impact storage costs and the Solution’s smooth operation.
Accordingly, if upon initial data integration or during the Contract term EMAsphere finds that the volume exceeds three million (3,000,000) lines, EMAsphere reserves the right to adjust the Client’s invoicing.
The Client and EMAsphere agree to proactively discuss and find a solution suited to the Client’s needs and EMAsphere’s technical and financial constraints.
In the event of a pricing adjustment, EMAsphere will inform the Client in writing, specifying the reasons and details of the adjustment.
Article 5 - Access to the Platform
5.1. Individual Access
The Client alone shall use this access right. Access is available at any time—except during maintenance periods—namely: 24 hours a day, 7 days a week, including Sundays and public holidays.
5.2. Client Account
Following completion of account opening procedures and payment of the fee as indicated in the Order Form, the Client will be granted a Client Account enabling the creation and management of User Accounts to allow different Users to access the Solution. Each User Account includes a unique identifier (login) and password or another form of unique identification set by EMAsphere.
5.3. Confidentiality
The Client and User are responsible for keeping credentials and passwords confidential. Generally, the Client alone is responsible for the security of individual access points to the Solution. The Client is fully liable for any misuse of credentials and/or passwords. The Client must ensure that no unauthorised person, not approved by EMAsphere, gains access to the Solution. Any access via a User Account shall be presumed attributable to the User and corresponding Client Account. The Client is responsible to EMAsphere for any behaviour, action, or omission by Users under its account and shall indemnify EMAsphere for any resulting damage. In the event of misuse, loss, theft, or other issues concerning login credentials, the Client must promptly inform EMAsphere and confirm by registered letter.
EMAsphere reserves the right, with or without prior notice and without liability, to limit, suspend, or terminate a Client Account or User Account in the event of a breach by the Client and/or User of any provision of the Contract, law, applicable regulation, or third-party rights. If a Client Account is suspended or terminated, the Client (and its Users) will no longer have access to the Solution. If a specific User Account is suspended or terminated, the User will no longer have access.
5.4. Maintenance
The Client is aware of the technical risks inherent in the internet and possible access interruptions. Consequently, EMAsphere cannot be held liable for any Solution downtime or slowdowns. EMAsphere does not guarantee continuous access to the Application Services, which are performed remotely via the internet, and the Client acknowledges this. Access to the Platform may occasionally be suspended due to maintenance necessary for the proper functioning of the Solution. In the event of service interruption for maintenance, EMAsphere undertakes to inform the Client as best as possible so that the Client can take appropriate measures to avoid disruption. EMAsphere shall not be liable for any impact this unavailability may have on the Client’s activities.
Article 6 - Use of the Application Services
6.1. Use of the Application Services
The Client undertakes to use the Application Services for their own needs and in accordance with their intended purpose, excluding any other use. In particular, the Client shall not:
- Attempt to bypass, access, or modify the security, verification, and confidentiality procedures governing access to the Solution or Data;
- Circumvent usage limitations of a Client or User account;
- Attempt to test the vulnerabilities of the Platform;
- Modify or attempt to modify the Application Services;
- Introduce viruses, malware, denial-of-service attacks, or any other action that could degrade, slow down, damage, or pose any risk to the Solution;
- Use any technology (e.g., data mining, spiders, crawlers, screen scraping, or any similar technology or feature) to copy or use the Solution or the Data for any purpose not authorised by EMAsphere;
- Attempt to access or modify Data belonging to other Clients or Users.
6.2. Availability of the Solution
The Solution is provided by EMAsphere on an "as is" basis. The Client and the User acknowledge that use of the Solution is at their own risk, and that EMAsphere cannot guarantee that the Solution will be accessible or usable at all times, or that there will be no issues with access, usage, or performance. EMAsphere’s obligations are obligations of means only.
Article 7 - Support and Evolution of the Solution
7.1. Support
The first level of support for identifying any anomalies in the Solution is provided by the EMAsphere partner responsible for the implementation and configuration of the Solution for the Client. EMAsphere shall only provide first-level support if it has performed the implementation and configuration for the Client itself.
7.2. Evolution
EMAsphere reserves the right, at its sole discretion, to modify the Solution made available to the Client in accordance with the Contract, provided such modifications do not substantially degrade the system’s performance and/or technical conditions compared to those existing before the change.
Article 8 - Ownership
8.1. Ownership of the Solution
EMAsphere retains sole ownership of the Solution and all related Intellectual Property Rights. The Client has no rights other than to use the Solution in accordance with the terms of the Contract. The Client agrees not to make any modifications to the Application Services provided. Any breach of this obligation shall immediately terminate the Contract. Any partial reproduction of the Platform and its features is subject to EMAsphere’s prior written consent. EMAsphere also retains ownership of all standard or custom developments relating to the Solution and may freely reuse any ideas, concepts, methods, know-how, or techniques related to programming or data processing discovered or developed during the performance of any service, even if ordered and paid for by the Client. If the Client contributes to the creation of a work eligible for protection under Intellectual Property Rights, the Client agrees to transfer, free of charge, its Intellectual Property Rights on the work to EMAsphere for the full term of the rights and worldwide, as and when the work is created. The Client retains a personal, non-exclusive, non-transferable right to use their portion of the work.
8.2. Ownership of Data
The Client retains sole ownership of the Data entered into the Solution before and during the term of the Contract. The Client is fully responsible for the integrity of the Data from their IT and/or accounting systems and related to the installation and/or use of the Application Services. EMAsphere shall in no event be liable for the alteration, destruction, or loss of Data arising from the general use of the Application Services. The Client expressly authorises EMAsphere to use the Data entered into the Solution – excluding personal data – to aggregate it with comparable data from other clients in order to offer benchmarking services. In all cases, EMAsphere undertakes to maintain the confidentiality of the Client’s Data. The Client also authorises EMAsphere to use the Data, including by copying, transforming, creating metadata, and generally performing any action on the Data that, in EMAsphere’s opinion, would be useful or in the interest of the Client or User in the context of using the Solution. The initial offer includes the import of historical data for the two previous years and the current year.
Article 9 - Duration of the Contract and Termination
The effective date (anniversary date) and initial term of the Contract are specified in the Order Form. Unless terminated by registered letter at least three (3) months before the end of the Contract, it will automatically renew for the same duration. Failure to comply with the termination conditions shall render the termination null and void.
Article 10 - Reversibility
In the event of termination of a Client Account, the Client shall have the right to request from EMAsphere the provision of their Data in a commonly used technical format at the time of the request (e.g., CSV), subject to reasonable compensation.
Article 11 - EMAsphere’s Liability
11.1. Limitation of Liability
EMAsphere’s liability is limited to direct damages, excluding any indirect damages. Indirect damages include, in particular, loss of clientele, financial or commercial harm, and loss, theft, inaccuracy, or corruption of data. EMAsphere shall under no circumstances be liable for damages resulting from issues originating in the Client’s systems. Any claims relating to the T&Cs or the Solution shall be time-barred three months after they become known. Except where liability results from: (i) fraud or gross negligence, or (ii) death or bodily harm caused to a natural person, EMAsphere’s total liability shall be limited to six months of monthly fees, regardless of the nature of the claim.
11.2. Liability of Auxiliaries
The Client and EMAsphere agree that compensation for damages resulting from a breach of contractual obligation by an auxiliary (such as an employee, representative, or agent) shall be a cause of action only against the relevant party, not against the auxiliary personally, even if the act also constitutes a tort.
Article 12 - Assignment and Subcontracting
The Contract may not be assigned, in whole or in part, for free or for consideration, by the Client. EMAsphere reserves the right to assign all or part of the benefit of the Contract. The Client acknowledges and agrees that EMAsphere may engage subcontractors to perform the Contract, for whom it remains responsible.
Article 13 - Force Majeure
Neither party shall be liable for failure to perform its obligations where such failure results from a force majeure event as defined under Belgian case law. The party invoking force majeure must notify the other party immediately by registered letter, specifying the reasons and circumstances preventing the performance of the Contract. If suspension due to force majeure exceeds three (3) months, either party may request termination of the Contract.
Article 14 - Protection of Personal Data
The terms "Data Controller," "Processor," "Data Subject," "Personal Data," and "Processing" (and "process") shall have the meanings given under the General Data Protection Regulation and any applicable national legislation (hereinafter collectively "GDPR"). The Client is the Data Controller and appoints EMAsphere as the Processor to process Personal Data for the provision of Services. Each party undertakes to comply with the GDPR.
In providing Services, EMAsphere undertakes to:
- Process Personal Data on behalf of the Client and only on documented instructions from the Client ("Authorised Purposes"), unless required to do so under Applicable Law, and notify the Client if an instruction violates Applicable Law, except where prohibited by public interest requirements;
- Not transfer Personal Data outside the European Economic Area ("EEA") without informing the Client and taking the necessary steps to ensure the transfer complies with Applicable Law;
- Ensure that anyone authorised to process Personal Data is bound by a confidentiality obligation and processes the data only for the Authorised Purposes;
- Implement appropriate technical and organisational measures to protect Personal Data from accidental or unlawful destruction, loss, alteration, unauthorised disclosure, or access (a "Data Breach");
- Provide reasonable assistance to the Client to respond to data subjects’ rights requests and data protection authority enquiries;
- Provide reasonable assistance to conduct a data protection impact assessment where required;
- Limit the retention of Personal Data (and any copies) to the time necessary to fulfil the Processing purpose;
- Notify the Client promptly in the event of a Data Breach, provide all necessary information and assistance for the Client to comply with notification obligations, take appropriate steps to remedy or mitigate the impact of the breach, and keep the Client informed of developments;
- Permit the Client (or designated auditors), with reasonable prior notice, to audit EMAsphere’s compliance with this clause once every twelve (12) months unless required otherwise by a data protection authority or in the event of a Data Breach;
- Destroy and/or return all Personal Data (and copies) to the Client upon termination of the Services Contract, unless retention is required by law; backups will be deleted only when the backup is fully purged in accordance with EMAsphere’s continuity policy. The Client authorises EMAsphere to subcontract all or part of the Personal Data Processing. EMAsphere shall notify the Client of any changes regarding sub-processors at least 30 days in advance, allowing the Client to object. If the Client justifiably objects on data protection grounds, it may immediately terminate the Contract. EMAsphere shall impose the same obligations on its sub-processors and remain fully liable for their compliance.
Article 15 - Confidentiality
EMAsphere undertakes to implement organisational and technical measures to ensure the confidentiality of Confidential Information transmitted by the Client and Users, as well as the Client’s trade secrets and/or professional secrets. The Client undertakes to maintain the confidentiality of EMAsphere’s Confidential Information and trade secrets. Each party undertakes to maintain the confidentiality of Confidential Information and disclose it only to employees, subcontractors, or suppliers who need to know for the purpose of performing the Contract. Confidential Information includes all information, data, documents of any kind communicated by one party to the other, or brought to its attention by any means, including technical, commercial, accounting, strategic or financial information, specifications, software, know-how, products. The confidentiality obligation shall not apply where the information:
- Is or becomes public through no fault of the receiving party;
- Was known to the receiving party at the time of disclosure without any confidentiality obligation;
- Is disclosed with express waiver of confidentiality;
- Is developed independently by the receiving party;
- Is lawfully provided by a third party without confidentiality obligation;
- Is required to be disclosed by law, regulation, or court order. These obligations shall remain binding on the parties for five (5) years from termination or expiry of the Contract, regardless of the reason. Each party guarantees compliance by its employees, contractors, affiliates, and subcontractors.
Article 16 - Services
The following Services may be provided by EMAsphere to the Client: implementation, configuration, interfacing, development, consultancy, etc. Any Service order shall be subject to an Order Form signed by the Client specifying the Services to be provided, pricing terms, timeline, acceptance criteria, and intellectual property rights to deliverables.
Article 17 - Non-Solicitation Clause
During the term of this Contract and for one year following its termination for any reason, the Client undertakes not to approach or solicit, directly or indirectly, for itself or on behalf of a third party, any EMAsphere employee or collaborator, regardless of their status, to induce or encourage them to resign or terminate their contractual relationship with EMAsphere, with a view to joining the Client, its representative, or any other employer or client. If this clause is breached, the Client shall owe EMAsphere a fixed indemnity equal to the gross annual base salary of the employee concerned. This indemnity is due for each employee recruited in breach of the above prohibition. This indemnity shall be payable without prejudice to EMAsphere’s right to claim full compensation for the actual damage suffered.
Article 18 - Miscellaneous Provisions
18.1. Entire Agreement
The Contract constitutes the entire agreement between EMAsphere and the Client, excluding all Client general terms and conditions.
18.2. Severability
If any clause of the T&Cs is declared void or unenforceable by a competent court, it shall be interpreted to reflect its original intent as closely as possible. The remaining clauses shall remain in full force and effect.
18.3. Hierarchy of Contractual Documents
In the event of conflict between the Order Form and these T&Cs, the Order Form shall prevail.
18.4. Access to Data
The Client undertakes to provide EMAsphere with the necessary access to the data to be processed, even if such data is outsourced. If needed, the Client will obtain access from its providers (accountant, fiduciary, host, etc.). Where access incurs a cost, the Client shall bear this cost, including any additional handling charges by EMAsphere. If EMAsphere assists the Client to obtain access, the time spent will be billed (at EUR 125 per hour).
18.5. Client Logo
By signing the Order Form, the Client authorises EMAsphere to use the Client’s logo in its communication materials (website, social media, slide decks).
Article 19 - Jurisdiction and Governing Law
This Contract is governed by Belgian law, to the exclusion of all others. In the event of a dispute concerning its interpretation, formation, performance, or termination, the courts of the judicial district of Brabant Wallon shall have exclusive jurisdiction.
T&Cs EMAsphere, version 1.7 - 8 April 2025.
EMAsphere Freemium version
Article 1 – Scope of application
These terms and conditions of use (hereinafter referred to as "Freemium TCU") are applicable to the access and use of the free version of the EMAsphere SaaS Solution by User referred as the "Freemium Solution".
The User acknowledges that they have read and understood the privacy policy ("Privacy Policy") available here and these Freemium TCU. By agreeing to use the Freemium Solution, the User agrees to be bound by the Freemium TCU, with EMAsphere (the "Agreement").
From time to time, EMAsphere may amend the Freemium TCU and will inform the User of such changes in a timely manner via either email or through the Platform. The User's continued use of the Freemium Solution shall signify their agreement with these updated Freemium TCU. If the User does not agree with the updated Freemium TCU, they may stop using the Freemium Solution.
The User understands that the Freemium Solution is a free and limited version of EMAsphere's Solution, which entails that some functionalities are not available in the Freemium Solution.
In the event User wishes to gain access to further functionalities, they must sign a purchase order for the paid version of the Solution, which is subject to the General Terms and Conditions available here.
Article 2 - Definitions
Capitalised terms have the following meanings ascribed to them:
"Confidential Information": designates all information, including technical, commercial or business information and data, even if not specifically designated as confidential, directly or indirectly communicated by either Party ("Disclosing Party") or made available to the other Party ("Recipient Party"), in any form and on any medium whatsoever and which can reasonably be understood to be confidential.
They include, without limitation, (i) the Agreement, (ii) the Limited Application Services, (iii) as well as any copies, analysis, synthesis or abstracts made of Confidential Information and/or any products, apparatus, modules, samples, prototypes or parts that may contain or reveal Confidential Information, (iv) any other proprietary information specifically designated as confidential.
- "Freemium TCU": designates these general terms and conditions governing use of the EMAsphere Freemium Solution.
- "Data": designates all data (in particular financial, accounting or other data) managed by the Freemium Solution.
- "Intellectual Property Rights": designates patents, plans, models, drawings, copyrights, software rights, data rights, trademarks, service marks, know-how, domain names, commercial trading names (registered or otherwise, including all registration applications relating to the said rights) and in general all similar rights including any extension and renewal of the said rights, worldwide.
- "EMAsphere": designates the limited liability company (SA) EMAsphere, or any legal successor.
- "Platform": designates the "cloud" platform accessible via https:\\ema.emasphere.com or any other URL indicated for this purpose by EMAsphere.
- "Limited Application Services": designates the limited functionalities offered in SaaS mode by EMAsphere to Users via the Platform as per described in Article 3 below.
- "Solution": designates the combination of access to the Platform and use of the Limited Application Services.
- "User": designates any person who is authorised to access and use the Freemium Solution.
- "User Account": designates the account created by the User to access the EMAsphere Platform and the Limited Application Services in its free and limited version.
Article 3 – Purpose
EMAsphere undertakes to provide the User with the Freemium version of the Solution and the Limited Application Services under the conditions described below.
The Freemium version of the Solution will be accessible through the Platform and the following Limited Application Services will enable User to:
- Connect to one available integrated software system (e.g. Exact Online or Xero);
- Inject onto the Platform previous and current year's company figures;
- Access a fixed step up, being provided that no customisation whatsoever will be possible;
- Access a reporting with more than twenty (20) indicators (e.g., profit and loss, balance sheet, clients, and suppliers' information, cashflow report and KPIs, health report);
- Create an automatic overnight update of User's company figures;
- Analyse in depth the company's figures up to the invoicing level;
- Generate up to fifty thousand (50.000) data records;
- Layout in the EMAsphere brand.
In addition, it is specified that the Freemium version of the Solution allows one User per account onto the Platform and to use the Limited Application Services. Hence, the User understands that the use of the Freemium version of the Solution and the User Account are strictly personal and may not be shared with third parties.
Access to and use of the Freemium version of the Solution and the Limited Application Services are provided to User without any charge and for an unlimited duration.
By using the Freemium version of the Solution and the Limited Application Services, User understands that they will not have access to all features, including the following:
- Customization, consolidation, forecast, analytical reporting, operational reporting, user management and data sharing;
- Connection to multiple data sources;
- Export options;
- Historization of the data;
- Smartphone application.
If the User wishes to access additional features, they shall switch to the EMAsphere paid Solution by way of signing a purchase order.
Article 4 – Access to the Platform
4.1. The User alone will use the right of access to the Platform.
EMAsphere will use reasonable efforts to grant the User access to the Platform at any time – except during maintenance periods – namely: 24 hours a day, 7 days a week, including Sundays and public holidays. However, the User remains responsible for subscribing to and maintaining an efficient internet network allowing the proper use of the Platform.
4.2. The User is responsible for protecting the confidentiality of identifiers and passwords. The User assumes sole liability for the security of individual workstations giving access to the Freemium version of the Solution.
The User is solely liable for any inappropriate use made of the identifiers and/or passwords. It will ensure that no other person who is not authorised by EMAsphere gains access to the Freemium version of the Solution through User's Account.
The User is liable vis-à-vis EMAsphere for any behaviour, action or omission resulting in any damage to EMAsphere and holds EMAsphere harmless against any damage that might arise therefrom.
In the event of misuse, loss or any other problem connected with an identifier or password, the User undertakes to inform EMAsphere of this without delay, followed up by confirmation via registered letter.
EMAsphere reserves the right, with or without prior notice and without incurring liability, to limit, suspend or terminate the User Account in the event of violation or breach on the part of the User of one or more provisions laid down in the Freemium TCU, in law or in any other applicable regulations, or in the event of infringements of the rights of third parties, without no compensation due to the User.
In the event of the suspension or deletion of a User Account for breach of the Freemium TCU, the User will no longer have access to the Freemium version of the Solution and will not be able to retrieve the Data contained in the User Account.
4.3. The User is advised of the technical contingencies inherent in the Internet, and of the access interruptions which could arise from this. Consequently, EMAsphere cannot be held liable for any downtimes or slowdowns affecting the Freemium version of the Solution. EMAsphere is not able to guarantee the continuity of the Platform and/or Limited Application Services executed remotely via the Internet, which fact is recognised by the User.
Access to the Platform may be suspended on occasion for maintenance operations which are necessary for the effective functioning of the Freemium version of the Solution. In the event of interruption to the Platform and/or Limited Application Services, EMAsphere undertakes to inform the User as fully and promptly as possible. EMAsphere cannot be held liable for any impact such downtime might have on the User's business.
Article 5 – Use of the Limited Application Services
5.1. The User undertakes to use the Limited Application Services for its own needs and in accordance with their purpose, to the exclusion of any others.
In this regard, the User will refrain in particular from:
- Attempting to circumvent, access or modify the security, authentication and confidentiality procedures governing access to the Freemium version of the Solution or to the Data;
- Exceeding the usage limitations of a the User Account;
- Attempting to test the vulnerabilities of the Platform;
- Decompiling, interfering with, modifying or attempting to modify the Limited Application Services, including, but not limited to, any mechanism used to restrict or control the functionalities, defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection or monitoring mechanisms of the Solution;
- Introducing viruses, malware, denial-of-service attacks or any other action which might result in degrading, slowing down, damaging or incurring any risk whatsoever for the Solution;
- Using any technology (e.g. data mining, spiders, crawlers, screenscraping or any other similar technology or functionality) to copy or use the Solution or the Data for any other purpose than that authorised by EMAsphere;
- Attempting to access or modify the Data of other Users.
- Sell, lease, lend, assign, sub-license and/or allow access to the Limited Application Services.
5.2 EMAsphere may at its sole discretion, modify, update, upgrade or downgrade the Limited Applications Services and will inform the User about these modifications, being provided that such modifications will not give rise to any compensation whatsoever due to the User.
5.3 EMAsphere reserves the right to monitor the User's use of the Limited Application Services.
Article 6 – Support and upgrade of the Solution
First line support, which allows the identification of an anomaly in the Freemium version of the Solution, is provided by the partner of EMAsphere responsible for the implementation and settings of the Solution at the User's facility. EMAsphere will only be obliged to perform first line support where it has directly carried out implementation and parameter setting for the User.
Article 7 – Ownership
7.1. Ownership of the Solution
EMAsphere remains the sole owner of the Solution (the Platform, the content on EMAsphere website etc.), the Limited Application Services, its software and materials (such as, but not limited to, the source codes, interfaces, algorithms, APIs documentation, names, logos, images etc.) and all Intellectual Property Rights attaching thereto.
The User has no prerogative beyond the use of the Freemium version of the Solution in strict compliance with the Freemium TCU.
As per provided in Article 6.1, The User undertakes to not to make any modification to the Application Service placed at its disposal. Any breach of this obligation would immediately entail termination of the Agreement.
Any reproduction, even partial, of the Platform and of the functionalities is subject to the prior written authorisation of EMAsphere.
EMAsphere also retains ownership of all standard or specific developments relating to the Solution and is at liberty to reuse the ideas, concepts, methods, know-how or techniques relating to the programming or processing of data discovered or perfected on the occasion of the performance of any service whatsoever.
In the eventuality that the User has collaborated with EMAsphere on the development of a work capable of being protected under Intellectual Property Rights, the User agrees to assign, free of charge and for the duration of each Intellectual Property Right concerned, and worldwide, its Intellectual Property Rights over the work over the course of its development.
The User retains a personal, non-exclusive and non-assignable right of use over its part of the work.
7.2. Ownership of the Data
The User remains the sole owner of the Data input into the Solution both before and during the performance of the Agreement.
The User will assume full responsibility for the integrity of the Data originating from its computer and/or accounting system and connected with the installation and/or use of the Application Services.
Under no circumstances can EMAsphere's liability be incurred as the result of alteration, destruction or loss of Data from the system in connection with the use – in the broad sense – of the Limited Application Services.
The User expressly authorises EMAsphere to make use of the Data input into the Solution – to the exclusion of personal data – in order to aggregate it with comparable data from other Users, for the purposes of enabling EMAsphere to offer benchmarking services to its Users.
In any event, EMAsphere undertakes to guarantee the confidentiality of the User's Data. The User also authorises EMAsphere to use the Data, in particular by copying, converting, creating meta-data and, in general, to undertake any action on the Data which, in the opinion of EMAsphere, may be useful or in the User's or the User's interest within the context of their use of the Solution.
Article 8 – Duration and Termination of the Agreement
8.1 Duration of the Agreement
The Agreement between the User and EMAsphere shall enter into force on the date of acceptance of the Freemium TCU by the User and shall remain in effect, without limitation, until the Agreement is terminated (for convenience or for breach in accordance with Art 8.2 and 8.3 below) or otherwise if the User closes its account.
8.2 Termination for convenience
The User acknowledges and accepts that EMAsphere, at its sole discretion, has the right to automatically terminate the Agreement, without any other compensation or consideration other than compliance with a notice period of 30 days to be sent by e-mail to the address provided by User or onto the Platform.
8.3 Termination for breach
In the event of breach by User of any of its obligation hereunder, EMAsphere reserves the right to automatically terminate the Agreement without prejudice to any other right and/or remedy and without compensation whatsoever due to the User.
Article 9 – EMAsphere's liability
The Freemium Solution is provided "as is" and EMAsphere does not offer any warranty, express or implied and expressly disclaims any warranty of merchantability or fitness for a particular purpose.
The User recognises that the Solution is used at the User's risk and that EMAsphere cannot guarantee that the Solution is always accessible or usable, or that no access, use or performance problems will arise. EMAsphere is bound solely by obligations of due diligence.
The User acknowledges and accepts that the Freemium Solution is never wholly free from defects, errors and/or bugs and that EMAsphere gives no warranty concerning the Freemium Solution to this effect.
EMAsphere's liability is limited to direct damage, to the exclusion of all indirect damages such as, but not limited to, loss of revenue, profits, use, damage to reputation resulting from the access to and use of the Freemium Solution. In no event shall EMAsphere's liability exceed an amount of 450 EUR. The User acknowledges and accepts that this limitation of liability is a fair reflection of the fact that it is authorised to use the Freemium Solution free of charge.
In addition, EMAsphere shall not be liable for error or interruption of use, viruses, bugs, trojan horses (regardless of the source of origination), or for any matter beyond EMAsphere's reasonable control.
Under no circumstances can EMAsphere be held liable for any damage arising from a problem originating in the User's systems.
All claims relating to the Freemium TCU or to the Solution are time-limited to three months following discovery of the issue concerned.
Notwithstanding the above limitations, EMAsphere remains liable for (i) fraud or gross negligence, (ii) willful misconduct or (iii) bodily injury caused to a person caused by EMAsphere.
Article 10 – Assignment and subcontracting
The Contract cannot be assigned, in full or in part, for consideration or otherwise, at the instigation of the User. EMAsphere reserves the right to transfer the benefit of all or part of the Contract. The User recognises and accepts that EMAsphere can call upon the services of sub-contractors, for whom it remains responsible, for the purposes of performing the Contract.
Article 11 - Force majeure
The parties cannot be held liable for the non-fulfilment of their obligations if such non-fulfilment is due to a case of force majeure, within the meaning ascribed in Belgian case-law.
A party invoking force majeure is required to report this without delay to the other party, by registered letter, specifying the precise reasons and consequences that prevent its performance of the Agreement. Beyond a suspension period for force majeure of three (3) months, the first party to take action can request the cancellation of the Agreement.
Article 12 - Personal Data
12.1 Definitions
In this Article, the following terms will have the meaning ascribed to them below:
"Data Controller", "Data Processor", "Data Subject", "Personal Data" and "Processing" (and "to process") must be understood to have the meanings ascribed to them by the applicable personal data protection law ("Applicable Personal Data Protection Law"); and
"Applicable Personal Data Protection Law" means: Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation) and all applicable legislation within the country concerned by the processing of personal data and by privacy protection.
12.2. Relationship between the Parties
User is the Data Controller and designates EMAsphere as the Data Processor for processing the personal data forming the subject of this Agreement (the "Personal Data"). Each party must comply with the obligations placed upon them by the Applicable Personal Data Protection Law.
12.3. Purpose of the Processing
EMAsphere undertakes to process the Personal Data to which it will have access within the context of the provision of the Limited Application Services, only upon the documented instruction of User, including as regards the transfer of the Personal Data, unless required to do so by virtue of European Union or Member State law to which it is subject. Under no circumstances will EMAsphere process the Personal Data for its own purposes or those of a third party.
EMAsphere will inform the User without delay if it deems an instruction to constitute a breach of the Applicable Personal Data Protection Law, or any other provision of European Union or Member State law relating to data protection, unless the law concerned prohibits such reporting on important grounds of public interest.
12.4. Transfer of the Personal Data outside the EU
EMAsphere will not transfer the Personal Data (or allow the Personal Data to be transferred) outside the European Economic Area ("EEA") unless: (i) it has informed the User in advance; and (ii) it has taken the necessary measures to ensure that the transfer complies with the Applicable Personal Data Protection Law.
12.5. Confidentiality of the Processing
EMAsphere will ensure that any person authorised by it to process the Personal Data (including the employees, agents and sub-contractors of EMAsphere) (an "Authorised Person") is subject to an obligation of confidentiality.
EMAsphere will ensure that all Authorised Persons process the Personal Data only as necessary for the authorised purposes.
12.6. Security
EMAsphere will implement appropriate technical and organisational measures to protect the Personal Data (i) from any accidental or unlawful destruction and (ii) loss, alteration, unauthorised disclosure or access to the data (a "Security Incident").
12.7. Sub-processing
The User expressly authorises EMAsphere to sub-contract the Processing of the Personal Data, in part or in full. EMAsphere undertakes to inform the User of any change involving the addition or replacement of a Sub-Processor, giving 30 days' notice and in so doing gives the User the opportunity to object to these changes. In the event of an objection to the elected Sub-Process, the User shall provide sufficient information on the objective reasons and justifications for such refusal. If the User refuses to allow EMAsphere to appoint a Sub-Processor on serious Personal Data Protection grounds, then the User can terminate the Agreement with immediate effect, without judicial intervention.
The same data protection obligations as apply to EMAsphere under this Agreement will apply contractually to any Sub-Processor and EMAsphere remains fully liable vis-à-vis the User for the performance on the part of the Sub-Processor of its obligations, including where the Sub-Processor fails to fulfil its Personal Data Protection obligations.
12.8. Duty to assist
EMAsphere will provide the User with reasonable assistance (in particular through appropriate technical and organisational measures) in order to enable the latter to discharge its obligation to respond to requests submitted to it by Data Subjects in order to exercise their rights in application of the Applicable Personal Data Protection Law (including the right of access, rectification, objection or restriction, deletion or portability of the data).
Furthermore, EMAsphere will provide reasonable assistance, as far as possible and within a reasonable period, to enable the User to respond to a request from a national supervisory authority responsible for the protection of Personal Data.
Finally, where the User considers that a type of processing is liable to engender a heightened risk for Data Subjects, it will inform EMAsphere who will provide reasonable assistance to enable the User to carry out an analysis of the impact that the envisaged processing operations may have on the protection of personal data.
This assistance will be invoiced at the rates applicable at the time the assistance is provided.
12.9 Storage, and retention, deletion and return of Personal Data
EMAsphere will not retain the Personal Data (including any copies thereof) beyond the period necessary to accomplish the purpose of the Processing.
Upon termination of the Agreement, or upon cancellation thereof, EMAsphere must (at the choice of the User) either destroy or return to User all the Personal Data (including all copies of the Personal Data) in its possession or under its control, unless EU or Member State law to which EMAsphere is subject requires the retention of some or all of the Personal Data.
In this event, EMAsphere will be required to isolate it and to apply security measures in order to prevent any further processing of the Personal Data, except insofar as required by this regulation.
Without prejudice to the foregoing, User recognises that copies of the Personal Data held on backups cannot be deleted at the same time as the deletion or return of the Personal Data, but that such copy will be deleted when the backup is deleted in its entirety, in accordance with the EMAsphere services continuity policy.
For technical reasons, copies of the Personal Data held on backups can never be returned but will always be deleted in compliance with the foregoing.
12.10 Security incidents
When it becomes aware of a Security Incident, EMAsphere informs the User without undue delay and provides all information and reasonable cooperation required by (User to enable it to fulfil its reporting obligations relating to breaches of Personal Data by virtue of (and in accordance with the time periods required by) the Applicable Personal Data Protection Law.
EMAsphere will also implement all measures and actions reasonably necessary to remedy or mitigate the effects of the Security Incident and will inform (User of all development relating to the Security Incident.
12.11. Audit
EMAsphere will allow the User (or the latter's designated external auditors) to check EMAsphere's compliance with this Article and will place all information at the disposal of User as is reasonably necessary to enable the User (or the latter's external auditors) to carry out such an audit. EMAsphere recognises that the User (or the latter's external auditors) can enter its premises for the purposes of this audit, provided that the User gives reasonable notice of its intention to carry out this audit, during normal office hours, and takes all reasonable measures to prevent any unnecessary disruption to the operations of EMAsphere. The User will not exercise its right of audit more frequently than once every twelve (12) months, unless (i) if and when so required at the instruction of a competent personal data protection authority; or (ii) if the User considers that an additional audit is necessary due to a Security Incident suffered by EMAsphere. The assistance provided by EMAsphere in the course of any audit or request for information will be invoiced at the rates applicable at the time its assistance was provided.
Article 13 - Confidentiality
EMAsphere undertakes to put in place organisational and technical measures to ensure the confidentiality of the Confidential Information transmitted by the User; the same applies to any of the User’s business secrets and/or professional secrets.
The User undertakes to respect the confidentiality and the manufacturing and business secrecy of the Confidential Information received from EMAsphere.
Each Party undertakes to maintain the confidentiality of the Confidential Information and to disclose it only to those of its employees, subcontractors or suppliers who have a need to know it for the performance of the Agreement.
The Parties will not be required to observe this obligation where the Confidential Information:
- comes into the public domain, or does so in the future, without fault on the part of the Receiving Party,
- is already known to the Receiving Party at the time of its disclosure by one of the Parties, without any violation of a pre-existing confidentiality undertaking,
- is transmitted to one Party by the other Party with express exemption from the obligation of confidentiality,
- has been developed independently by the Receiving Party,
- has been provided lawfully by a third party to one of the Parties with no obligation of confidentiality,
- where disclosure is required by law or by the applicable regulations or by a court ruling.
The Parties will continue to be bound by the clauses of this article for a period of five (5) years following the closing of the User's Account or termination of this Agreement, irrespective of the cause.
Each Party guarantees compliance with this obligation on the part of its employees, contractors, affiliated or linked companies and sub-contractors, as applicable.
Article 14 – Other provisions
14.1. Completeness of the Agreement
The Agreement constitutes the entire agreement between EMAsphere and the User.
14.2. Nullity
In the event that one article of the Freemium TCU is declared null and void or non-enforceable by a competent court, the said article will be reinterpreted, as far as possible, in accordance with the original intention and the remaining articles will remain in force.
14.3. Data accessibility
The User undertakes to give EMAsphere the necessary access to the data which must be processed, even if these are outsourced. If necessary, the User will obtain this access from his suppliers (accountant, fiduciary, host ...). Insofar as access to this data would be chargeable, the User will bear these costs, including any additional costs linked to the processing of these costs by EMAsphere. In the event that EMAsphere would assist the User in order to be able to access his information, the time spent will be invoiced (at the price of 125 euros per hour worked).
14.4. User logo
By agreeing to the Freemium TCU, the User allows EMAsphere to use the User's logo on any communication media (website, social networks, slide deck etc.).
Article 15 – Assignment of jurisdiction and governing law
This Agreement is subject to Belgian law, to the exclusion of any other law.
In the event of any dispute as to the interpretation, conclusion, performance or cancellation of this Agreement, or in relation to it, the courts and tribunals of the judicial district of Walloon Brabant will have sole jurisdiction.
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TCU Freemium EMAsphere, version 1.0
November 2023