Terms of use - Businesses

Preamble:

1. Karomia BV, registered with number 1004.945.239, with its registered office at Gaverlandstraat 62, 9031 Drongen, Belgium and available at info@karomia.eu (hereinafter referred to as “Karomia”), is a software company developing a sustainability reporting software (the“Solution”). Karomia also provides subject matter expert support (“SME Support”)to accompany users of the Solution.
2. In this context, Karomia wishes to enter into a service agreement (the “Agreement”) with a business (the “Customer”) to give access to the Solution and/or SME Support. 
3. The person signing Karomia’s Agreement and giving their consent to the “Terms of Use” (this document), is a legal representative of the company (“you” or the “Customer”).
4. This Agreement constitutes the commercial understanding between the Customer and Karomia (herein individually referred to as a “Party” and collectively as the “Parties”) and sets forth the terms and conditions of their agreement.
5. If you have any questions about these terms or their implementation, or if you need support, please contact Karomia by email at info@karomia.eu.‍

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The Customer and Karomia have agreed as follows:

Article 1: Definitions and interpretation 

1.1. Definitions 

Under this Agreement, terms that begin with a capital letter are defined as follows:

Affiliate(s): any related company as set forth in article 1:20 of the Belgian Companies and Associations Code.

Agoria Index: means the Agoria Digital index for reference wage costs (country average) as is published on the website of Agoria: https://www.agoria.be/en/services/data-research/reference-wage-costs .

Agreement: refers to the binding legal contract between Karomia and the Customer, encompassing both this document and any additional agreements that specifically outline the terms under which Karomia shall provide the Solution and/or the SME Support to the Customer.

Business Day: a day (other than a Saturday or Sunday) when banks are open for normal business in Belgium.

SME Support: the subject matter expert support provided by Karomia and its subcontractors to the Customer, its Affiliates or selected partners of the Customer for supporting and obtaining better outcome from the Solution, upon the Customer’s request, as further detailed in the Agreement or in mutual agreement between the Parties.

Customer: the person giving their consent to the Agreement, legally representing a business wishing to enter into an agreement with Karomia to enable Users to use the Solution and/or SME support.

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 Karomia.

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 Partyfrom 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 Affiliate companies in the case of Karomia).

Intellectual Property Rights: means any rights, title and interest in patents, trademarks, trade and business names (including service marks), design rights, utility models, copyright, database rights, know-how (including trade secrets and confidential information), software and computer programs and any other industrial or commercial monopoly right whether presently existing, applied for or in relation to which there is a right to apply for registration and any analogous rights under any other jurisdiction;

Party: Karomia or the Customer.

Parties: Karomia and the Customer.

Users: any natural person linked to the Customer by an employment contract or who has been selected by the Customer, who has accepted Karomia’ User terms of use.

Karomia Solution or the Solution:  the sustainability reporting solution developed by Karomia, which encompasses the proprietary Karomia double materiality and CSRD/ESRS reporting modules. The Customer will be granted access to use the Solution upon the payment of a subscription fee. This access includes the right to utilize the Solution within the agreed-upon scope of use, under the terms and conditions specified in this Agreement.

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1.2. Interpretation

1. The singular shall include the plural and vice versa.
2. 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.
3. 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”.
4. The words “include”, “including”, “includes” and all forms and derivations thereof shall mean including but not limited to.
5. 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 considered for the interpretation of this Agreement.
6. References to Articles and paragraphs in this Agreement are references to the Articles and paragraphs of this Agreement unless otherwise specified.
7. 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

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Article 2: Purpose and scope of the Agreement

1. The Agreement sets out the principles and modalities of the relationship between the Parties regarding the Karomia Solution and, as the case may be, the SME Support, as well as the Parties’ respective rights and obligations. 
2. 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.

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Article 3: Services

A. Karomia Solution

1. Karomia shall give access to the parts of the Karomia Solution selected by the Customer to the Users. 
2. Each User can use any Service available through the Karomia Solution at any time during the duration of this Agreement. 
3. Karomia shall support the onboarding of all interested Users employed at the Customer on or around the Effective Date. 
4. Karomia shall be available through its various support channels for any Users having questions on the Karomia Solution for the duration of the Agreement.
5. For each registration, the Customer shall provide the necessary personal data of the Users as to create their account onthe Karomia Solution and each said User shall receive an email from Karomia to finalize their registration, at the latest five (5) Business Days after Karomia has received the necessary data.
6. All Users wishing to use the Karomia Solution shall be deemed having accepted Karomia’s User’s Terms of Use upon first use of the Karomia Solution.

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B. SME Support

1. Karomia and its subcontractors shall provide the SME Support selected by the Customer. 
2. The SME Support 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. 
3. Karomia, 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 organization of the performance of the SME Support.
4. The Customer acknowledges and agrees that the performance of the SME Support, 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 SME Support.
5. Unless expressly agreed otherwise between the Parties, any deliverables delivered as part of the SME Support will be deemed accepted (and the SME Support 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 Karomia 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.
6. The SME Support 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 SME Support provided will be based upon the law, regulations, cases, rulings and other rules in effect at the time the specific SME Support are provided. Subsequent changes in or to the foregoing (for which Karomia, once the SME Support have been provided, shall have no responsibility to advise on) may result in the SME Support provided being rendered invalid. Karomia has no responsibility to update the deliverables for facts and circumstances occurring after the date of delivery of the deliverables.
7. Any SME Support 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.

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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.

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Article 5: Collaboration between the Parties

1. Each Party undertakes to collaborate in good faith with the other with a view to the proper performance of the Agreement. 
2. Each Party shall provide the other with the necessary information to enable the proper performance of the Agreement and shall provide support if needed. 
3. Karomia shall not be responsible for any obligation existing between the Customer and its employees.

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Article 6: Price and payment terms

1. Karomia shall send the Customer a recurring invoice corresponding to the subscription model selected to be paid by the Customer pursuant to this Article.
2. The total amount of each invoice correspondsto the fixed fees for the Karomia Solution and/or fees corresponding to anyoption or extra services, including SME Support, chosen by the Customer.
3. All fees are VAT excluded.
4. Invoices are paid by the Customer within thirty (30) days of receipt of the relevant invoice.
5. At the beginning of each new Calendar Year, the Fees set forth in the Agreement shall, with effect on the 1st of January of that year, be automatically increased in accordance with the following formula:

• P1 = P0 x[0.2 + (0.8 x (S1 / S0))],
• where P0 =base rate, and P1 = revised rate;
• P0 = The Fees as set forth in the Agreement;
• S1 = monthly value of the Agoria Index applicable for T1;
• S0 = monthly value of the Agoria Index applicable for T0;
• T1 = January month of the year of the adjustment date;
• T0 = January month of the year of the signature date.

Article 7: Warranties

Each Party warrants that: 

1. 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;
2. it is a corporation duly incorporated and organized and validly existing under the laws of its jurisdiction of incorporation;
3. it has the right to perform its obligations under the Agreement and to grant the other Party the rights set forth in the Agreement; 
4. this Agreement constitutes a legal, valid, and binding obligation on such Party enforceable, in accordance with its terms; and
5. its execution and performance of this Agreement will not (i) breach the terms of any law, authorization, 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.

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Article 8: Confidentiality

1. 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.
2. Each Party shall only use any Information whatsoever for the strict purpose of executing its obligations under this Agreement.
3. 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.
4. 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.
5. 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.
6. 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.
7. This Article shall survive the end of this Agreement for a period of five (5) years.

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Article 9: Personal data

The processing of personaldata of Users or any other natural person implicated in the performance of this Agreement shall be done in compliance with Karomia privacy policy and Karomia data processing policy, both available on Karomia website and through the Solution. 

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Article 10: Intellectual Property Rights and marketing

1. 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. 
2. 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, Karomia intellectual property or any other (intellectual) property right with respect the Solution, or any adaptation, variation thereof, that could be confused with those of Karomia, without the prior written approval of Karomia.
3. 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 Karomia Intellectual Property Rights and acknowledges that such goodwill belongs exclusively to Karomia. Any and all goodwill arising from the use of Karomia Intellectual Property Rights by the Customer will inure to Karomia’s sole benefit.
4. Karomia 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 Karomia Intellectual Property Rights in the ordinary course of business, provided that said use does not affect Karomia’s rights under the conditions specified, and only for the use as foreseen under this Agreement.
5. 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 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 realized 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. 
6. Each Party can request the other Party to stop any use or communication that is, in its reasonable opinion, contrary     to the abovementioned.

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Article 11: Responsibility

1. 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.
2. 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.
3. Karomia shall not be liable for the Customer failing to meet any legal requirements for ESG reporting (including but not limited to the CSRD and CSDDD). Karomia cannot be held accountable for remarks, statements and comments given by external bodies, including but not limited to, the auditor of the Customer.
4. Karomia shall not be liable for any Event of Force Majeure and the consequences thereof. Furthermore, Karomia 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.
5. The Customer undertakes to hold Karomia 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.
6. The liability of each Party under the Agreement shall in any event be limited to 25% of the yearly Agreement value of the year during which the incident causing damage to the other Party occurred.
7. 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. 
8. No  action, regardless of form, arising under or relating to the Agreement, the Karomia Solution or the SME Support, may be brought by either Party more than 6 months 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.

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Article 12: Term and termination

1. This Agreement shall become effective on the Effective Date.
2. This Agreement shall be renewed automatically for succeeding terms of 12 months 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
3. The Agreement can be terminated at any time after the first anniversary of the Effective Date. Subscription fees for the Solution, whether paid in full or not, will be due for 50% of the annual contract value if terminated within 30 days after the anniversary of the Effective date. If the Agreement is terminated between 31-90 days after the anniversary of the Effective Date, 75% of the annual contract value of subscription fees will be due. A termination after 90 days of the anniversary of the Effective Date will be considered a cancellation on the next anniversary of the Effective Date.
4. 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.
5. 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 Karomia.

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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 in writing & confirmed between both Parties. 

General conditions and/orany other standard documentation of either Party have been taken into consideration and, as such, shall not bind the other Party in case of inconsistency or conflict with the Agreement unless incorporated by mutual written agreement as part of the Agreement. Karomia’s Terms of Use, and privacy policy shall however apply to the User.

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13.2. Affiliates

Any Affiliate of the Customer may benefit from the services provided by Karomia 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.

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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 ofsaid 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.

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13.4. Notices 

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 Karomia, and for Karomia, 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:

1. sent by digital registration in the Karomia Solution (with acknowledgement of receipt by e-mail from Karomia); or
2. sent by registered mail or by an internationally recognized courier company; or
3. sent by email to info@karomia.eu (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:

1. at the time of delivery, if delivered by hand or by a courier company; or
2. at the moment of the acknowledgement of receipt, if sent by email with acknowledgment of receipt; or
3. 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).

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13.5. Severability

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.

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13.6. Waiver

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.

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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.

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