The client and Digit Mint have agreed as follows
Article 1: Definitons and interpretation
For the purposes of this Agreement, the terms used with capital letters shall have the following meaning:
Affiliate: any related company as set forth in article 1:20 of the Belgian Companies and Associations Code.
Agreement: the present agreement between Digit Mint and the Customer and the particular agreement between Digit Mint and the Customer setting out the under which Digit Mint shall offer Consultancy Services and/or enable the Users to use the Digit Mint Solution.
Business Day: a day (other than a Saturday or Sunday) when banks are open for normal business in Belgium.
Consultancy Services: the various consultancy services provided by Digit Mint and its subcontractors to the Customer upon the Customer’s request, as further detailed in the particular agreement between the Parties.
Customer: the person giving their consent to the application of this Agreement, being an customer wishing to enter into an agreement with Digit Mint to enable Users to use the Solution.
Effective Date: the effective date of this Agreement that is the date on which the Customer accepted these Terms and Conditions, said date being automatically saved in the informatic system of Digit Mint.
Event of Force Majeure: an unforeseen event, which occurs after the Effective Date and which is beyond the reasonable control of the affected Party, to the extent such an event prevents and/or delays the affected Party from fulfilling its obligations under this Agreement and the affected Party is not the direct or indirect cause of such an event and is unable to prevent or remove such an event at reasonable cost.
Information: all information, data, reports, intellectual property, know-how, process and trade secrets, in whatever form, provided by or on behalf of one Party to the other Party or information of one Party otherwise received by the other Party under or in connection with the Agreement, including the information relating to the Party and its businesses, operations, finances, planning, facilities, products, techniques and processes. For example, but without limitation, the Information may include inventions, products, processes, technical methods, formulas, projects, developments, plans, research data, financial data, personal data, software, client listings, suppliers’ listings and any other data relating to clients or the knowledge of existence of clients or the prospects of the concerned Party (and its affiliated companies in the case of Digit Mint).
Intellectual Property Rights: any and all right, title and interest in and to all intellectual property rights in the Digit Mint Solution, or any tool, and/or any part thereof, and all other materials and services supplied or provided by, or on behalf of, Digit Mint, such as patents, utility models, designs (whether or not capable of registration), chip topography rights, database rights and other like protection, copyrights, trademarks, trade and business names, trade dresses, know-how (including trade secrets and Confidential Information), inventions and/or any other industrial and/or intellectual property rights, and applications, divisions, continuations, renewals, re-exams and reissues thereof.
Party: Digit Mint and/or the Customer.
Digit Mint Solution: the Sustainability reporting solution developed by Digit Mint, including the Digit Mint LCA & company ESG calculator, Double Materiality and CSRD reporting module.
- The singular shall include the plural and vice versa.
- Where in this Agreement a French or Dutch term is given after an English term, and there is any inconsistency between the French or Dutch and the English, the meaning of the French or Dutch term shall prevail.
- The words “shall use its best efforts” or “shall use its best endeavours” (or any similar expression or any derivation thereof) shall be construed as an “middelenverbintenis” / “obligation de moyen”.
- The words “include”, “including”, “includes” and all forms and derivations thereof shall mean including but not limited to.
- The titles and headings used in this Agreement are only inserted to facilitate the reading of this Agreement and do not express in any way the intended understanding of the Parties. They shall not be taken into account for the interpretation of this Agreement.
- References to Articles and paragraphs in this Agreement are references to the Articles and paragraphs of this Agreement unless otherwise specified.
- English language words used in this Agreement intend to describe Belgian legal concepts only and the consequences of the use of those words in English law or any other foreign law shall be disregarded.
Article 2: Purpose and scope of the Agreement
- The Agreement sets out the principles and modalities of the relationship between the Parties regarding the Digit Mint Solution and, as the case may be, the Consultancy Services, as well as the Parties’ respective rights and obligations.
- It is hereby acknowledged and accepted by the Parties that either Party may enter into similar arrangements and/or agreements with third parties, that no exclusivity is granted and that nothing in the Agreement shall limit either Party’s right for such cooperation with any third parties.
Article 3: Services
A. Digit Mint Solution
- Digit Mint shall give access to the parts of the Digit Mint Solution selected by the Customer to the Users.
- Each User can use any Service available through the Digit Mint Solution at any time during the duration of this Agreement.
- Digit Mint shall organise a kick-off session for all interested Users employed at the Customer as to present the Digit Mint Solution and how to use it on or around the Effective Date, at a date to be determined by the Parties.
- Digit Mint shall be available through its customer service for any Users having questions on the Digit Mint Solution for the duration of the Agreement.
3.2. Registration and accounts
- For each registration, the Customer shall provide the necessary personal data of the Users as to create their account on the Digit Mint Solution and each said User shall receive an email from Digit Mint to finalise their registration, at the latest five (5) Business Days after Digit Mint has received the necessary data.
B. Consultancy Services
- Digit Mint and its subcontractors shall provide the Consultancy Services selected by the Customer.
- The Consultancy Services shall be carried out in a professional and competent manner, in accordance with the high standards of performance and quality that a client may expect in the performance of such services, fairly and in good faith, and with due regard for the interests, business and reputation of the Customer.
- Digit Mint, or as the case may be its subcontractors, shall take into account the information that will be given from time to time by the Customer, while retaining complete freedom and autonomy in the organisation of the performance of the Consultancy Services.
- The Customer acknowledges and agrees that the performance of the Consultancy Services, the delivery of any deliverables, any estimated timetable and fees are all dependent on the timely performance of the Customer’s responsibilities, its timely decisions and approvals and on the accuracy and completeness of any documents, information or assumptions shared or made in connection with the Consultancy Services.
- Unless expressly agreed otherwise between the Parties, any deliverables delivered as part of the Consultancy Services will be deemed accepted (and the Consultancy Services or relevant part thereof completed) (i) when such deliverable has been delivered in its final form and no material objection to the deliverables or its content is notified by the Customer to Digit Mint in writing within ten (10) days of delivery or (ii) when first use of the deliverables is successfully made by or on behalf of the Customer, whichever occurs first.
- The Consultancy Services provided are not binding on tax or other governmental or federal, regional or local (regulatory) authorities and/or the courts and do not constitute a representation, warranty or guarantee that the said authorities and/or the courts will concur with any deliverable.
- Any Consultancy Services provided will be based upon the law, regulations, cases, rulings and other rules in effect at the time the specific Consultancy Services are provided. Subsequent changes in or to the foregoing (for which Digit Mint, once the Consultancy Services have been provided, shall have no responsibility to advise on) may result in the Consultancy Services provided being rendered invalid. Digit Mint has no responsibility to update the deliverables for facts and circumstances occurring after the date of delivery of the deliverables. Any Consultancy Services and deliverables in relation thereto are only intended for the benefit of the Customer and are to be considered as ‘Information’, protected by the confidentiality obligations of this Agreement.
- The Consultancy Services shall be rendered as from the date defined by mutual agreement between the Parties.
- The estimated duration of said Consultancy Services shall be defined by mutual agreement between the Parties, it being understood that the respect of said duration is an estimate and shall also depend on the Customer and, as the case may be, its User.
- Digit Mint, or as the case may be its subcontractors, shall keep the Customer regularly informed of the progress in the planning and organisation of the Consultancy Services.
Article 4: Independence
Each Party is operating, and will continue to operate, on its own behalf, in its own name, with its own trade name, for its own account and at its own risks and nothing in the Agreement is intended or shall be construed to authorize either Party to create or assume any liability or indebtedness of any kind in the name of or on behalf of the other Party or to act for or be responsible for the performance of the other Party in any manner whatsoever.
Article 5: Collaboration between the Parties
- Each Party undertakes to collaborate in good faith with the other with a view to the proper performance of the Agreement.
- Each Party shall provide the other with the necessary information to enable the proper performance of the Agreement and shall provide support if needed.
- Digit Mint shall not be responsible for any obligation existing between the Customer and its employees.
Article 6: Price and payment terms
- The total amount of each invoice corresponds to the fixed fees for the Digit Mint Solution and the fees corresponding to any option or extra services, including Consultancy Services, chosen by the Customer.
- Each Party shall provide the other with the necessary information to enable the proper performance of the Agreement and shall provide support if needed.
- All prices are VAT excluded.
- Invoices are paid by the Customer within thirty (30) days of receipt of the relevant invoice.
Article 7: Warranties
Each Party warrants that:
- it shall make its best efforts to perform its obligations under the Agreement in a timely and diligent manner and with professional diligence, skill, prudence and foresight and in compliance with the requirements of the Agreement;
- it is a corporation duly incorporated and organised and validly existing under the laws of its jurisdiction of incorporation;
- it has the right to perform its obligations under the Agreement and to grant the other Party the rights set forth in the Agreement;
- this Agreement constitutes a legal, valid and binding obligation on such Party enforceable, in accordance with its terms; and
- its execution and performance of this Agreement will not (i) breach the terms of any law, authorisation or license to which it is subject, or (ii) infringe any proprietary rights of third parties, or create circumstances that would, with notice or lapse of time, or both, constitute breach or infringement.
Article 8: Confidentiality
- Without prejudice to Article 10, neither Party shall disclose to third parties and/or use any received Information, including pieces of Information received prior to the signing of the Agreement – whether or not it was governed by a previously entered into specific non-disclosure agreement - without the prior written permission of the other Party, except to its affiliates, subcontractors, suppliers, agents and advisors working on the execution of the Agreement on a need to know basis, provided that such third parties are bound by confidentiality obligations similar to those contained in the Agreement.
- Each Party shall only use any Information whatsoever for the strict purpose of executing its obligations under this Agreement.
- Information (as defined) shall not, however, include information which the concerned Party can establish: (i) is in the public domain at the time of disclosure or later becomes part of the public domain without breach by the Party of the confidentiality obligations contained herein; or (ii) was rightfully in the possession of the Party prior to disclosure hereunder and is not subject to confidentiality obligations between the Parties; or (iii) was or is disclosed to the Party by a third party who is not, to the best of Party’s knowledge, bound by any obligation of confidentiality to the other Party; or (iv) was or is independently developed by the Party without use or reference to the Information.
- A Party shall have the right to disclose Information of the other Party in accordance with a judicial or other governmental order but shall inform the other Party prior to it.
- Each Party shall use appropriate efforts no less restrictive than used for the Party’s protection of its own confidential and trade secret information, but, in any event no less than reasonable efforts, to safeguard the Information of the other Party and keep it secure.
- Each Party shall return or destroy upon written request of the Party owning the Information all material embodying Information of the other Party that is subject to confidentiality obligations under the Agreement, including all copies of any kind. However, the Party receiving request may retain such Information that is required by mandatory laws or to perform its obligations under the Agreement subject to all confidentiality obligations herein.
- This Article shall survive the end of this Agreement for a period of five (5) years.
Article 9: Personal data
Article 10: Intellectual Property Rights and marketing
- All right, title and interest in and to all Information and to all Intellectual Property Rights, whether or not specifically recognized or protected under applicable law, shall worldwide and in perpetuity vest in and be the sole and exclusive property of the Party owning it on the Effective Date and of the Party creating it after the Effective Date, as the case may be.
- Under no circumstances shall the Agreement involve a transfer of Intellectual Property Rights between the Parties and each Party remains entirely free to use its Intellectual Property Rights. Accordingly, the Customer undertakes not to register or attempt to register, anywhere in the world, Digit Mint intellectual property or any other (intellectual) property right with respect the Digit Mint Solution, or any adaptation, variation thereof, that could be confused with those of Digit Mint, without the prior written approval of Digit Mint.
- The Customer recognizes the great value of the goodwill (consisting in the whole, intangible, portion of its market value that is higher than its book value) associated with Digit Mint Intellectual Property Rights and acknowledges that such goodwill belongs exclusively to Digit Mint. Any and all goodwill arising from the use of Digit Mint Intellectual Property Rights by the Customer will inure to Digit Mint’s sole benefit.
- Digit Mint hereby grants the Customer a non-exclusive and non-transferable license, for the duration of this Agreement and subject to its terms and conditions, to use Digit Mint Intellectual Property Rights in the ordinary course of business, provided that said use does not affect Digit Mint’s rights under the conditions specified, and only for the use as foreseen under this Agreement.
- Each Party can use the trademark(s), trade name(s) and logos of the other Party for marketing and communication purposes relating to the Agreement, provided that said use is not able to harm in any way whatsoever the image and commercial reputation of the other Party or the Digit Mint Solution and can, in its own name and on its own behalf, make publicity on, press release of and reference to the existence of the Agreement and the nature of the cooperation between the Parties. Said use and communications can be realised without a prior written approval of the other Party to the extent it is done without disclosure of the details regarding the Agreement or the execution thereof and without impair public order and morals and the commercial reputation of the other Party.
- Each Party can request the other Party to stop any use or communication that is, in its reasonable opinion, contrary to the abovementioned.
Article 11: Responsibility
- Each Party shall defend, indemnify and hold the other Party and its Affiliates harmless from any and all liabilities, damages, losses, costs and expenses (including without limitation attorneys’ fees) which arise from the breach of its warranties under the Agreement or from any wrongful execution of the Agreement.
- Neither Party shall under any circumstances be liable for any indirect damages, expenses, costs or other losses incurred by the other Party or its Affiliates arising under or in connection with the Agreement.
- Digit Mint shall not be liable for any Event of Force Majeure and the consequences thereof. Furthermore, Digit Mint shall in no case whatsoever be liable for any damages, expenses, costs or other losses resulting from the actions or omissions of third parties involved in the execution of this Agreement.
- The Customer undertakes to hold Digit Mint and its Affiliates harmless from any and all liabilities, damages, losses, costs and expenses (including without limitation attorneys’ fees) which arise from the actions or omissions of its Users or from a failure to properly select User.
- The liability of each Party under the Agreement shall in any event be limited to the maximum amount between (i) the amount provided by the applicable insurance to cover the liabilities, damages, losses, costs and expenses in such case or (ii) 50% of the monthly Agreement value of the month during which the incident causing damage to the other Party occurred.
- Any limitation of liability provided in this Article shall not apply to breaches of Article 8, to the liability mentioned in Article 11.4 or in cases of intentional misconduct or gross negligence by the defaulting Party, committed in relation with the performance of this Agreement.
- No action, regardless of form, arising under or relating to the Agreement, the Digit Mint Solution or the Consultancy Services, may be brought by either Party more than one year after the cause of action has accrued, except that an action for non-payment may be brought by a Party not later than two years following the due date of the relevant invoice.
Article 12: Term and termination
- This Agreement shall become effective on the Effective Date and shall remain in force for a period to be specified by mutual agreement of the Parties or, if no such agreement exist, for an undetermined period.
- This Agreement shall be renewed automatically for succeeding terms equal to the term specified by mutual agreement of the Parties and under the same conditions unless either Party gives written notice to the other Party at the latest forty-five (45) days prior to the anniversary date of the Effective Date, it being understood that the Agreement shall only be terminated on the anniversary date of the Effective Date. Should the Agreement be concluded for an undetermined period, it may be terminated by either Party at any moment, upon three (3) months’ prior written notice.
- This Agreement may be terminated with immediate effect by written notice by the non-defaulting Party, without incurring any liability and without prejudice to the right of indemnification of the non-defaulting Party, in the event that (i) the other Party commits a material breach and fails to remedy such breach within ten (10) Business Days after having been given written notice in respect thereof; or (ii) the Customer fails to pay an undisputed invoice within twenty (20) Business Days after having been given written notice in respect thereof; or (iii) the other Party is declared bankrupt, is dissolved, or goes or is put into liquidation (otherwise than solely for the purpose of amalgamation or reconstruction) or if a receiver is appointed over any part of such other Party’s business or if any event occurs which under the laws of any jurisdiction has a similar or analogous effect to any of the above events; or (iv) as otherwise set forth in this Agreement.
- Termination of this Agreement shall be without prejudice to the rights and obligations of the Parties which have accrued up to the date of termination and without prejudice to the fees due to Digit Mint for any started month of use of the Digit Mint Solution.
Article 13: Miscellaneous
13.1. Entire Agreement and general terms and conditions
The Agreement forms the entire agreement between the Parties relating to the subject matter hereof and supersedes all prior communications, written or oral, between the Parties, including without limitation any prior non-disclosure agreement between the Parties.
All amendments and modifications to the Agreement shall be made by a written document signed by both Parties.
Any Affiliate of the Customer may benefit from the services provided by Digit Mint under this Agreement in Belgium, subject to the same conditions than the ones provided by the Agreement for the Customer. Any reference to the Customer in the Agreement shall then be understood as a reference to the concerned Affiliate of the Customer, it being understood that the Customer shall remain the sole responsible for the execution of the Agreement by any Affiliate of the Customer.
13.3. Assignment and Transfer
No Party shall be entitled to assign or transfer all or any of its rights, benefits and obligations under the Agreement without the prior written consent of the other Party, except to a successor of all or substantially all of the assets of such Party if the successor expressly assumes in writing the terms, conditions and obligations of said Party hereunder and warns the other Party in writing.
Subject to the foregoing, the Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Any attempted assignment other than in strict compliance with this clause shall be void.
Any notice in connection with this Agreement must be in writing and shall be considered validly given when it is given, for the Customer, to the email or postal addresses given by the Customer (or its legal representative) upon registration to Digit Mint, and for Digit Mint, to the email or postal addresses specified in the preamble of this Agreement (or to any other addressee or address that a Party may notify to the other in accordance with what is provided in this Article) if:
- delivered by hand (with written confirmation or acknowledgement of receipt); or
- sent by registered mail or by an internationally recognised courier company; or
- sent by email (with acknowledgement of receipt or copy thereof by registered mail).
Any notice shall be effective upon receipt and shall be deemed to have been received:
- at the time of delivery, if delivered by hand or by a courier company;
- at the moment of the acknowledgement of receipt, if sent by email with acknowledgment of receipt; or
- on the first business day following the date of sending (mentioned on the receipt) if sent by registered mail or if sent by email with a copy by registered mail (in case of absence of acknowledgment of receipt).
If one or several provisions of the Agreement shall be held to be void, illegal, or unenforceable, this nullity, illegality or unenforceability shall not affect the validity, the legality or the enforceability of the other provisions, except if the provisions held to be void, illegal or unenforceable affected the object of the Agreement. Each Party shall negotiate diligently and in good faith a valid provision replacing the void, illegal or unenforceable provision.
The default or the delay of a Party to avail itself of a right or a faculty given by the Agreement or a breach of the other Party cannot, in any case, be considered as or have the effect of a definitive waiver of that Party to avail itself of that right or that breach subsequently.
The rights and obligations of the Parties shall not be limited to those set out in the Agreement when the law enforces or provides other rights and obligations, provided however that the Agreement shall always take precedence over any applicable laws with which it may conflict or which is expressly excluded by the Agreement as far as legally permissible.
13.7. Applicable law and disputes
The Agreement shall be governed by and construed in accordance with the laws of Belgium.
Every dispute related to the conclusion, the validity, the interpretation or the performance of the Agreement, or of contracts or subsequent transactions that might result from it, as well as any other dispute concerning, or related to, the Agreement, with no exception, will be submitted to the exclusive jurisdiction of the courts of Brussels.