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GENERAL TERMS AND CONDITIONS OF USE OF EMAsphere SOLUTIONS

 

Version 1.5
25 May 2018.

EMAsphere S.A.
Rue André Dumont, 5 1435 Mont-Saint-Guibert, Belgium
BCE 0538.597.349. 

Article 1- Scope of application :

These general terms and conditions of use (hereinafter referred to as “GTCU”) are applicable to all orders placed by the Customer with EMAsphere and to all uses of the Solution. The choice of Applications and the associated prices are specified on the Purchase Order. Unless expressly provided otherwise – such provision being specified on the Purchase Order and signed – the GTCU exclude all other general and/or special terms and conditions applied by the Customer. By signing the Purchase Order, the Customer’s representative confirms that he is vested with all powers and authorisations necessary to validly commit the legal entity he represents.

Article 2- Definitions

Capitalised terms have the following meanings ascribed to them:

Purchase Order“: designates the purchase order signed by the Customer.

GTCU“: designates these general terms and conditions governing use of the Solution.

Customer“: designates the natural person or legal entity having entered into a Contract.

Contract“: designates the contractual whole formed by the Purchase Order and the GTCU.

Data“: designates all data (in particular financial, accounting or other data) managed by the 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.

Services“: designates the consultancy services potentially provided by EMAsphere.

Application Services“: designates the functionalities offered in SaaS mode by EMAsphere to Users via the Platform.

Solution“: designates the combination of access to the Platform and use of the Application Services.

User“: designates any person under the authority of the Customer (agent, employee, representative, proxy etc.) who is authorised to access the Solution.

Article 3- Purpose:

The purpose of the GTCU is to define the terms and conditions applicable to the Solution. In return for payment of the price, the Service Provider grants the Customer, who accepts:

  • Right of access to the Platform, under the conditions defined below;
  • Right of end use of the Application Services and support and upgrade services;
  • A set of Services as defined below, in particular data hosting.

Article 4 – Invoicing and payments

4.1.

The rates applicable to the use of the Platform and to the Application Services are specified on the Purchase Order. All amounts are quoted net and exclusive of tax (ex. tax).

4.2.

Unless otherwise provided, invoices are payable within a maximum of thirty (30) days from the date on which they are sent. 

4.3.

Unless otherwise provided, the fulfilment by EMAsphere of a Purchase Order is conditional upon advance payment thereof. 

4.4.

Every year on the anniversary date of the coming into effect of the Purchase Order, EMAsphere reserves the right to index its rates, indicating the consumer prices index used, as published by the Belgian FPS (Federal Public Service) Economy. 

4.5.

In the event of non-payment, partial payment or late payment, notwithstanding any other action open to it, EMAsphere is entitled to suspend access to the Solution and/or any other Service provision until such time as full and final payment of the price is received., without incurring any liability whatsoever for the consequences of such suspension. 

4.6.

Any amount outstanding on the due date will incur, automatically and with no prior notice, the application of default interest at the contractual annual rate of ten percent (10 %) until such time as full and final payment is received. Furthermore, EMAsphere is entitled to claim a flat-rate compensation payment equivalent to fifteen percent (15 %) of the outstanding amounts. 

4.7.

In the event of any change to its invoicing address, the Customer will inform EMAsphere of this immediately; the latter cannot be held liable for any damages as might result from late notification on the part of the Customer.

Article 5 – Access to the Platform 

5.1.

The Customer alone will use this right of access. The Customer will be able to log in at any time – except during maintenance periods – namely: 24 hours a day, 7 days a week, including Sundays and public holidays.

5.2

After completion of the account opening formalities and payment of the price as indicated on the Purchase Order, the Customer will be assigned a customer account (hereinafter referred to as “Customer Account”) enabling it to administer and create user accounts (hereinafter referred to as “User Accounts”) in order to allow the various Users to access the Solution. A User Account includes a unique identifier (login) and a password or other form of unique identification determined by EMAsphere.

5.3.

The Customer and the User are responsible for protecting the confidentiality of identifiers and passwords. In general, the Customer assumes sole liability for the security of individual workstations giving access to the Solution. The Customer is solely liable for any misuse made of the identifiers and/or passwords. It will ensure that no other person who is not authorised by the Service Provider gains access to the Solution. Any access to the Solution via a User Account will be assumed to be attributable to the User concerned and to the Customer Account from which it originates. The Customer is liable vis-à-vis EMAsphere for any behaviour, action or omission on the part of Users forming part of its Customer Account, and holds EMAsphere harmless against any damage as might arise therefrom. In the event of misuse, loss, theft or any other problem connected with an identifier or password, the Customer 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 a Customer Account or User Account in the event of violation or breach on the part of the Customer and/or a User of one or more provisions laid down in the Contract, in law or in any other applicable regulations, or in the event of infringements of the rights of third parties. In the event of the suspension or deletion of a Customer Account, the Customer (and that Customer’s Users) will no longer have access to the Solution. In the event of the suspension or deletion of a given User Account, the User concerned will no longer have access to the Solution.

5.4.

The Customer is informed 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 Solution. EMAsphere is not able to guarantee the continuity of the Application Services executed remotely via the Internet, which fact is recognised by the Customer. Access to the Platform may be suspended on occasion for maintenance operations which are necessary for the effective functioning of the Solution. In the event of interruption to the Application Services for maintenance purposes, the Service Provider undertakes to inform the Customer as fully and promptly as possible in order to enable the Customer to take measures to prevent any disruption to its business. The Service Provider cannot be held liable for any impact such downtime might have on the Customer’s business.

Article 6 – Use of the Application Services 

6.1.

The Customer undertakes to use the Application Services for its own needs and in accordance with their purpose, to the exclusion of any others. In this regard, the Customer will refrain in particular from:

  • Attempting to circumvent, access or modify the security, authentication and confidentiality procedures governing access to the Solution or to the Data;
  • Exceeding the usage limitations of a Customer or User Account;
  • Attempting to test the vulnerabilities of the Platform;
  • Modifying or attempting to modify the Application Services;
  • 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 Customers or Users.

6.2.

The Solution is made available by EMAsphere on an as-is basis. The Customer and the User recognise that the Solution is used at the Customer’s and the User’s risk and that EMAsphere cannot guarantee that the Solution is accessible or useable at all times, or that no access, use or performance problems will arise. EMAsphere is bound solely by obligations of due care.

Article 7 – Support and upgrade of the Solution

7.1. Support

First line support, which allows the identification of an anomaly in the Solution, is provided by the partner of EMAsphere responsible for the implementation and settings of the Solution at the Customer’s facility. EMAsphere will only be obliged to perform first line support where it has directly carried out implementation and parameter setting for the Customer.

7.2. Upgrade

EMAsphere reserves the right, at its sole discretion, to modify the Solution made available to the Customer in accordance with the Contract, provided that such modifications do not substantially degrade the performances of the system and/or the technical conditions compared with those existing prior to the modification

Article 8 – Ownership 

8.1. Ownership of the Solution

EMAsphere remains the sole owner of the Solution and all Intellectual Property Rights attacheding thereto. The Customer has no prerogative beyond the use of the Solution in compliance with the terms and conditions of the Contract. The Customer undertakes to not to make any modification to the Application Services placed at its disposal. Any breach of this obligation would immediately entail termination of the Contract. Any reproduction, even partial, of the Platform and of the Functions 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, even though the service has been ordered and paid for by the Customer. In the eventuality that the Customer has collaborated with EMAsphere on the development of a work capable of being protected under Intellectual Property Rights, the Customer 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 Customer retains a personal, non-exclusive and non-assignable right of use over its part of the work.

8.2. Ownership of the Data

The Customer remains the sole owner of the Data input into the Solution both before and during the performance of the Contract.

The Customer 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 Application Services.

The Customer 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 customers, for the purposes of enabling EMAsphere to offer benchmarking services to its customers.

In any event, EMAsphere undertakes to guarantee the confidentiality of the Customer’s Data. The Customer 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 Customer’s or the User’s interest within the context of their use of the Solution.

Article 9 – Term of the Contract and cancellation

The date of entry into force (anniversary date) and the initial term of the Contract are stipulated on the Purchase Order. Unless cancelled by registered letter at least three (3) months prior to expiration, the Contract will be automatically extended for the same period.

Article 10 – Reversibility 

Where a Customer Account is closed, the Customer will have the right to request that EMAsphere make its Data available in a commonly used technical format (e.g. CSV), and in return for reasonable compensation.

Article 11 – EMAsphere’s liability

EMAsphere’s liability is limited to direct damage, to the exclusion of all consequential damage. The following in particular are regarded as consequential damage: loss of clientele, all financial or commercial detriment and the loss, theft, inaccuracy or corruption of the data.

Under no circumstances can EMAsphere be held liable for any damage arising from a problem originating in the Customer’s systems.

All claims relating to the GTCU or to the Solution are time-limited to three months following discovery of the issue concerned.

Except for cases in which liability arises from (i) fraud or gross negligence, (ii) death or personal injury caused to a natural person, EMAsphere’s total liability is limited to 6 months of monthly charges, all actions combined.

Article 12 – Assignment and sub-contracting

The Contract cannot be assigned, in full or in part, for consideration or otherwise, at the instigation of the Customer. EMAsphere reserves the right to transfer the benefit of all or part of the Contract. The Customer 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 13 – 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 circumstances that prevent its performance of the Contract. Beyond a suspension period for force majeure of three (3) months, the first party to take action can request the cancellation of the Contract.

Article 14 – Personal Data

14.1 Definitions:

In this clause, the following terms will have the meaning ascribed to them below:

  • Data Controller“, “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; 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.

14.2. Relationship between the parties:

(CUSTOMER) is the Data Controller and designates EMAsphere as the Sub-Contractor 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.

14.3. Purpose of the processing:

EMAsphere undertakes to process the Personal Data to which it will have access within the context of the service provision, only upon the documented instruction of (CUSTOMER), 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 (CUSTOMER) 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.

14.4. Transfer of the data outside the EU:

EMAsphere will not transfer the Personal Data (nor allow the Personal Data to be transferred) outside the European Economic Area (“EEA“) unless: (i) it has informed the (CUSTOMER) in advance; and (ii) it has taken the necessary measures to ensure that the transfer complies with the Applicable Personal Data Protection Law.

14.5. Confidentiality of the processing:

EMAsphere will ensure that any person authorised by it to process the Personal Data (including the staff members, agents and sub-contractors/processors 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.

14.6. 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“).

14.7. Sub-processing:

(CUSTOMER) authorises EMAsphere to sub-contract the Processing of the Personal Data, in part or in full. EMAsphere undertakes to inform (CUSTOMER) of any change involving the addition or replacement of a Sub-Processor, giving 30 days’ notice and in so doing gives (CUSTOMER) the opportunity to object to these changes. If (CUSTOMER) refuses to allow EMAsphere to appoint a Sub-Processor on serious Personal Data Protection grounds, then (CUSTOMER) can terminate the Contract with immediate effect, without judicial intervention.

The same data protection obligations as apply to EMAsphere under this Amendment will apply contractually to any Sub-Processor and EMAsphere remains fully liable vis-à-vis (CUSTOMER) 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.

14.8. Duty to assist:

EMAsphere will provide (CUSTOMER) 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 (CUSTOMER) to respond to a request from a national supervisory authority responsible for the protection of Personal Data.

Finally, where (CUSTOMER) considers that a type of processing is liable to entail a heightened risk for Data Subjects, it will inform EMAsphere who will provide reasonable assistance to enable (CUSTOMER) 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.

14.9 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 expiration of the Service Contract, or upon cancellation thereof, EMAsphere must (at the choice of (CUSTOMER)) either destroy or return to (CUSTOMER) 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, (CUSTOMER) 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.

14.10 Security incidents:

When it becomes aware of a Security Incident, EMAsphere informs (CUSTOMER) without undue delay and provides all information and reasonable cooperation required by (CUSTOMER) 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 (CUSTOMER) of all development relating to the Security Incident.

14.11. Audit:

EMAsphere will allow (CUSTOMER) (or the latter’s designated external auditors) to check EMAsphere’s compliance with this Article and will place all information at the disposal of (CUSTOMER) as is reasonably necessary to enable (CUSTOMER) (or the latter’s external auditors) to carry out such an audit. EMAsphere recognises that (CUSTOMER) (or the latter’s external auditors) can enter its premises for the purposes of this audit, provided that (CUSTOMER) 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. (CUSTOMER) 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 (CUSTOMER) 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 15- Confidentiality 

EMAsphere undertakes to put in place organisational and technical measures to ensure the confidentiality of the Confidential Information transmitted by the Customer and Users; the same applies to any of the Customer’s business secrets and/or professional secrets.

The Customer undertakes to respect the confidentiality and the manufacturing and business secrecy of the confidential information (hereinafter referred to as 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, sub-contractors or suppliers who have a need to know it for the performance of the Contract. The following are regarded as Confidential Information: all information, Data, documents of any kind transmitted by one Party to the other Party or brought to its attention in writing, verbally or by any other means, and including without limitation all technical, commercial, accounting, strategic or financial information, studies, specifications, software, know-how, products. The Parties will not be required to comply with 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 agreement,
  • 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 expiration or cancellation of this Contract, 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 16 – Services

The following Services in particular will potentially be provided by EMAsphere to the Customer: implementation, parameter setting, interfacing, development, consultancy assignment services etc.

Any order for Services from the Customer will form the subject of a Purchase Order signed by the Customer. In particular, it will describe the Services to be provided, the associated price terms, the schedule, profit conditions, and the intellectual ownership of the deliverables.

Article 17– Miscellaneous provisions

17.1. Completeness of the agreement:

The Contract constitutes the entire agreement between EMAsphere and the Customer, to the exclusion of all general terms and conditions applied by the Customer.

17.2. Nullity

In the event that one clause of the GTCU is declared null and void or non-enforceable by a competent court, the said clause will be reinterpreted, as far as possible, in accordance with the original intention and the remaining clauses will remain in force.

17.3. Hierarchy of contractual documents:

In the event of any contradiction between the provisions of the Purchase Order and those of the GTCU, the provisions of the Purchase Order will take precedence. 

Article 18 – Assignment of jurisdiction and governing law

This Contract 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 Contract, or in relation to it, the courts and tribunals of the judicial district of Walloon Brabant will have sole jurisdiction.