1. INTRODUCTION

These Terms of Service (the “Terms of Service”) are a binding contract by and between The Ecological Entrepreneur (as defined in article 2 below) and the legal entity identified through the online ordering process and represented in the Order Form as the customer (“Customer”) and apply to all Services (as defined in article 2 below) made available by The Ecological Entrepreneur.

THE ECOLOGICAL ENTREPRENEUR PROVIDES THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THE AGREEMENT (AS DEFINED IN ARTICLE 2) AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE "ACCEPT" OR “BUY NOW” OR “SUBSCRIBE AND PAY” BUTTON OR BY ACCESSING OR USING THE SERVICES OR BY SIGNING THE ORDER FORM, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) ACCEPT THIS AGREEMENT AND AGREE THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (C) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, THE ECOLOGICAL ENTREPRENEUR WILL NOT AND DOES NOT LICENCE THE SERVICES TO CUSTOMER AND YOU MUST NOT USE OR ACCESS THE SERVICES OR THE DOCUMENTATION.

No terms or provisions of any Customer purchase order, agreement, statement of work or other document provided by Customer shall have any effect on the rights, duties or obligations of the Parties and are hereby rejected by The Ecological Entrepreneur.

2. DEFINITIONS

“Account” means an account enabling a person to access and use the Services. Different account types can be created and each account type is assigned specific access and usage rights;

“Affiliate” of a Party means any other entity that, directly or indirectly, controls, is controlled by, or under common control with, that Party. For the purposes of this definition, the term “control” means the direct or indirect power to direct the business of the other entity through ownership of at least 50% of the shares, voting rights, participation, or economic interest in the other entity;

“Agreement” means jointly the Order Form, the Terms of Service, the Data Processing Agreement, the Service Level Agreement and any Schedules (if applicable) as concluded between the Parties;

“Beneficiaries” means the third party(ies) legal entity(ies) (e.g. Affiliates of the Customer) explicitly listed on the Order Form as a ‘Beneficiary’, having the right to use the Services under the Agreement. Beneficiaries are only accepted by The Ecological Entrepreneur under the condition the Customer opted for the accurate Subscription Plan, designed for group companies;

“Business Day" means a working day from 9.00 a.m. to 5.00 p.m. (Central European Time zone) from Monday to Friday, excluding public holidays in Belgium;

“Confidential Information” of a Party means any information disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), whether before or after the Effective Date and, whether in written, oral, electronic or in any other form, and which: (i) is explicitly marked as confidential or proprietary or similar marking; (ii) should reasonably be considered confidential given the nature of the information and/or the circumstances surrounding its disclosure; or (iii) is traditionally recognized to be of a confidential nature, regardless of whether or not it is expressly marked as confidential, including but not limited to, information and facts concerning business plans, customers, prospects, personnel, suppliers, partners, investors, affiliates or others, training methods and materials, financial information, marketing plans, sales prospects, customer lists, inventions, program devices, discoveries, ideas, concepts, know-how, techniques, formulas, blueprints, software (in object and source code form), documentation, designs, prototypes, methods, processes, procedures, codes, and any technical or trade secrets, including all copies of any of the foregoing or any analyses, notes, studies or reports that contain, are based on, or reflect any of the foregoing. The Confidential Information of The Ecological Entrepreneur shall include, without limitation, the Services and the Documentation;

“Customer Data” means all data entered or uploaded by the Customer or the Customer’s Users  (directly, via manual uploading features or through an API with a third-party provider) when using the Services and as processed or stored by The Ecological Entrepreneur as a result of the Customer and/or User using the Services;

“Customer” means the legal entity identified in the Order Form as the Customer;

“Data Processing Agreement” means the data processing agreement concluded between the Parties and as annexed to the Terms of Service;

“Documentation” means the most recent version of the official technical and functional product information for the Services that The Ecological Entrepreneur generally makes available from time to time to its Customers and as may be published online on the website of The Ecological Entrepreneur;

“Effective Date" means the effective date as set out in the Order Form, representing the start date of the Agreement;

“Force Majeure Event” means a temporary or permanent inability of a Party to fulfil its obligations, resulting from unavoidable, unforeseeable and external facts and circumstances reasonably beyond the control of that Party. Force Majeure shall, but not exclusively, in any case apply to: war or war risk, insurrection or public revolt, fire caused by an outside calamity, an import or export embargo imposed by the government, internet failure, hosting failure, cyberattacks or DDOS attacks, viruses or other malicious software infections, floods, explosion, weather conditions, epidemics or pandemics, strike or social action and otherwise all circumstances qualified by both Parties as Force Majeure in mutual consent;

“Implementation and Activation Services” means such implementation and activation services offered by The Ecological Entrepreneur, to its Customer as further set out in an Order Form or ordered through an online workflow, where applicable;

“Incident” has the meaning as given in the Service Level Agreement;

“Initial Term” has the meaning given in article 13.1 and represents the initial committed period for which the Agreement is concluded as set out in the Order Form. The Initial Term starts on the Effective Date and constitutes the minimal commitment taken by the Customer;

“Intellectual Property Rights” means any intellectual property rights including but not limited to: (i) copyright, moral rights, patents, database rights and rights in trademarks, designs, know-how and trade secrets (whether registered or unregistered); (ii) applications for registration, and the right to apply for registration, renewals, extensions, continuations, divisions, reissues, or improvements for or relating to any of these rights; and, (iii) all other intellectual or industrial property rights and equivalent or similar forms of protection existing anywhere in the world;

“Invoice Dispute Period”  has the meaning given in article 9.2;

“Maintenance Services” means the general maintenance of the Services, and the application of updates and upgrades;

“Module Extension” means an addition to the Services which provides one or more significant new functionalities or architectures which none of the existing modules of the Services already contained before, or only contained in a limited form before, and therefore cannot be considered as a New Version;

“New Version” means any new improved, modified, revised, corrected, upgraded, enhanced or updated version of the Services that The Ecological Entrepreneur may from time to time introduce and that is not a Module Extension;

“Notification Email Address” means the notification email address(es) designated by a Party in the applicable Order Form, for the purpose of receiving legal notices, administrative communications, service alerts, or any other formal notifications under this Agreement. Each Party is responsible for ensuring that its Notification Email Address remains current and monitored and any changes to the Notification Email Address may be notified in writing to the other Party;

“Order Form” means the Order Form as agreed upon between the Customer and The Ecological Entrepreneur, including any Schedules (if applicable). The Order Form contains a description of the Services ordered, the Implementation and Activation Services (as applicable), the fees associated with such Services and Implementation and Activation Services, and other applicable commercial terms and is governed by these Terms of Service. The Order Form can be generated through an online workflow and ordering process;

“Party” means a party to this Agreement;

“Period Start Date” means the start date of the relevant minimum commitment period undertaken by the Customer. The Period Start Date aligns by default with the Effective Date or the first day of each Renewal Term (if applicable) and is indicated in the online ordering workflow, the Order Form, or the Customer’s admin account;

“Period End Date” means the end date of the relevant minimum commitment period undertaken by the Customer. The Period End Date aligns by default with the last day of the Initial Term or the last day of the of each Renewal Term (if applicable) and is indicated in the online ordering workflow, the Order Form or the Customer’s admin account;

“Renewal Term” has the meaning given in article 13.1;

“Sales Tax” has the meaning given in article 9.5;

“Schedule” means any schedule attached and incorporated into the Agreement (if applicable);

“Scheduled Maintenance” means time that is scheduled by The Ecological Entrepreneur for maintenance of the Services;

“Service(s)” means the Services as identified and further described in the Customer’s Order Form, which are made available to the Customer as Software as a Service;

“Service Level Agreement” or “SLA” has the meaning as given in the Service Level Agreement, incorporated by reference into and part of the Agreement and available on The Ecological Entrepreneur’s website: https://www.esgpro.app/nl/service-level-agreement

“Software as a Service” or “SaaS” refers to the software model which The Ecological Entrepreneur is leveraging for making the Services available to the Customer. The Services are made available hosted on The Ecological Entrepreneur’s hosting partner’s datacentres;

“Subscription Fee” means the (recurring) subscription fee to be paid by the Customer to The Ecological Entrepreneur as specified in the Order Form related to the right to use the Services and the provision of Support Services and Maintenance Services;

“Subscription Plan” means the specific tier of services, features, usage limits and applicable pricing selected by the Customer and set forth in the applicable Order Form. Each Subscription Plan outlines the scope of access to the Services, including the permitted usage volumes and any other applicable restrictions;

“Support Services” means support offered by The Ecological Entrepreneur to the Customer in case Incidents occur related to the Services and as set out in the Service Level Agreement;

“Term” has the meaning given in article 13.1 and represents the term of this Agreement, which includes the Initial Term and any Renewal Terms (if applicable);

“Terms of Service” means these Terms of Service including any Schedules;

“The Ecological Entrepreneur” means World's Natural Balance BV, a company incorporated under Belgian law, having its registered address at Koningin Elisabethlei 16, 2000 Antwerp, Belgium and registered under enterprise number 0740.930.441, RLE Antwerp, department Antwerp;

“Trial License Expiry Date” means the expiry date of the Trial License as set out in the Order Form;

“User” means an individual end user of the Service, having access to the Service via and on behalf of the Customer.

3. RIGHT TO USE THE SERVICES

3.1  Right to Use the Services. Subject to the terms of the Agreement, including but not limited to the payment of the Subscription Fees and any limitations set out in the Order Form and the applicable Subscription Plan, The Ecological Entrepreneur grants to the Customer (and the Beneficiaries, if they are explicitly indicated in the Order Form) a personal, limited, non-exclusive, non-transferrable, revocable, and non-assignable right, during the Term, for Users to access and use the Services, in accordance with the applicable Documentation and in accordance with the terms and conditions herein, solely for Customer’s internal business purposes and for the Services’ intended purpose. The Customer’s use shall be limited to the scope, the corresponding fees and the Subscription Plan as indicated in the relevant Order Form.

3.2 Creation of an Account. The Ecological Entrepreneur will create an Account for the Customer’s administrator User within two (2) Business Days after the Effective Date and shall provide to the Customer login credentials on or promptly following the Effective Date in order to access the Services. Customer shall be responsible to ensure that where its Users have different access rights to the Services, Users with different access rights shall in no event be enabled to have access to a different type of User Account.

3.3 Integration of the Services and APIs. Unless explicitly otherwise described in the Order Form or any other agreement executed between both Parties, it shall be Customer’s responsibility to integrate the Services (including any APIs) within Customer’s infrastructure or with any third-party applications (if applicable). The Ecological Entrepreneur may make available out-of-the-box connections with third-party applications, which the Customer may use to set-up connections with such third-party applications.

3.4 Evolution of the Services. The Ecological Entrepreneur makes the Services available as a Software as a Service, which means The Ecological Entrepreneur is continuously working on updating and improving the Services. New Versions of the Services will be made available to the Customer as generally available to The Ecological Entrepreneur’s customers during the Term and as per the applicable Subscription Plan. The Ecological Entrepreneur reserves the right (but shall not be obligated) to make operational or technical changes to the Services in order for the Services to keep up with market standards. The Ecological Entrepreneur shall inform Customer of any modifications, additions or enhancement of any feature of the Services within a reasonable time.

3.5 Use Restrictions. Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the right to use the Services granted by The Ecological Entrepreneur to the Customer under this Agreement is subject to the following prohibitions. The Customer shall not: (a) sub-license, hire, assign, distribute, transfer, (re)sell, lease, rent charge or otherwise deal in or encumber its right to access and use the Services; (b) permit any unauthorised person to access or use the Services; (c) make back-up copies of the Services or the related object code, (d) copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Services, or any part thereof, nor allow any third parties to perform such actions, (e) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person, or that violates any applicable law, (f) share any User credentials in violation of these Terms of Service, (g) use the Services for any illegal, unauthorized or otherwise improper purposes, or use the Services in a manner that materially fails to comply or is inconsistent with any part of the Documentation or these Terms of Service, (h) remove or alter any copyright or other proprietary notice on any of the Services, (i) export or re-export the Services in violation with any local or international laws or regulations, or (j) copy the Documentation or the Services (or any part thereof) or access the Services in order to build a competitive product or service.

3.6 Unauthorized Sharing of User Credentials. Customer acknowledges that each User created by or for the Customer is assigned to specific User credentials (login and password) and may only be used by the individual User to whom it is assigned. Customer agrees to take reasonable measures to prevent unauthorized sharing of User credentials and to ensure compliance with the terms of this Agreement. The Ecological Entrepreneur shall have the right to verify whether User credentials are used correctly by the Customer and its Users. It is the Customer’s sole responsibility to manage the User credentials.  

3.7 Customer’s Users. Customer shall use reasonable efforts to make all Users aware of this Agreement's provisions as applicable to such User's use of the Services and shall cause Users to comply with such provisions. Customer is responsible and liable for: (a) all Users and Beneficiaries using the Services, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of the Agreement applicable to Customer; and, (b) any use of the Services through Customer’s account, whether authorized or unauthorized. Any act or omission by a Beneficiary or by a User that would constitute a breach of this Agreement if taken by the Customer will be deemed a breach of this Agreement by the Customer.

3.8 Open Source. Insofar as components of the Services contain open source elements, the articles 3.1 to 3.7 shall only be applicable insofar as the content of these provisions is compatible with the content of the open source licenses under which the open source elements have been licensed to The Ecological Entrepreneur.

3.9 Trial License. This article 3.9 only applies if a trial or evaluation period has been explicitly agreed on by The Ecological Entrepreneur in the Order Form:

(i) if Customer is evaluating the Services, The Ecological Entrepreneur hereby grants to the Customer a non-exclusive, non-transferable, revocable, limited-term license to access and use the Services solely for internal testing and evaluation purposes (the “Trial License”) as from the Effective Date until the Trial License Expiry Date (the “Trial License Period”);

(ii) The Ecological Entrepreneur has the right to terminate for convenience the Agreement during the Trial License Period at any moment in time without prior notification and without any liability;

(iii) the Customer has the right to terminate the Agreement for convenience by written notice to The Ecological Entrepreneur during the Trial License Period. If such termination right is not used by the Customer before the Trial License Expiry Date, the Customer shall no longer have the right to terminate the Agreement for convenience and the Agreement and Trial License will automatically transition into Services that are payable by the Customer in accordance with Subscription Fees as set out in the Order Form for the entire Initial Term.

4. CUSTOMER DATA

4.1 Ownership of Customer Data. The Ecological Entrepreneur acknowledges that, as between The Ecological Entrepreneur and the Customer, Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to the Customer Data. The Customer hereby grants to The Ecological Entrepreneur a non-exclusive, royalty-free, worldwide license to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data to the extent reasonably required to provide the Services and Support Services to the Customer and for the performance of The Ecological Entrepreneur’s obligations and the exercise of The Ecological Entrepreneur’s rights under the Agreement. The Customer also grants to The Ecological Entrepreneur the right to sub-license these rights to its subcontractors (such as for example but not limited hereto, its hosting provider) to the extent reasonably required for the performance of The Ecological Entrepreneur’s obligations and the exercise of The Ecological Entrepreneur’s rights under this Agreement.

4.2 Disclosing Customer Data. The Customer acknowledges and agrees that for the performance of the Agreement and in order to use the functionalities of the Services, Customer Data can be disclosed to other Users, subcontractors to The Ecological Entrepreneur, recipients and other third parties. Such disclosure shall explicitly not constitute a breach of confidentiality.

4.3 No Infringement. The Customer warrants to The Ecological Entrepreneur that Customer Data when used by The Ecological Entrepreneur in accordance with this Agreement will not infringe the Intellectual Property Rights, trade secrets or other legal rights of any person or third party, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law. It is the Customer’s responsibility to obtain the necessary legal grounds for processing (personal) data within and through the Services and to ensure accuracy, integrity and quality of the Customer Data.

4.4 Benchmarking and Analytics. Customer acknowledges and agrees that The Ecological Entrepreneur may collect, use, analyse and publish Customer Data for the purposes of conducting statistical and analytical studies, and creating industry benchmarks, provided that such Customer Data is aggregated and/or anonymized so that it does not identify Customer, its Users, or any individual. Customer hereby grants The Ecological Entrepreneur a perpetual, irrevocable, worldwide, royalty-free, and transferable license to use such aggregated and/or anonymized Customer Data for these purposes. This license shall survive any expiration or termination of this Agreement. Customer acknowledges this aggregated and/or anonymized Customer Data does no longer constitute Customer Data or Customer’s Confidential Information after aggregation and/or anonymization was applied.

5. DATA PROTECTION

5.1 Data Protection and Data Processing. The Ecological Entrepreneur will process personal data on behalf of the Customer in order to provide and make available the Services, to offer Support Services and in general to fulfill its rights and obligations under the Agreement. The data processing agreement attached to these Terms of Service applies to the processing of personal data by The Ecological Entrepreneur on behalf of the Customer and is considered part of the Agreement.

6. INTELLECTUAL PROPERTY RIGHTS

6.1 Intellectual Property Rights in the Services and Documentation. The Ecological Entrepreneur (or its licensors and suppliers) is and remains the sole and exclusive proprietary owner of all Intellectual Property Rights related to the Services and the Documentation (including any New Versions, new releases, updates, upgrades, customizations, enhancements, modifications or improvements made to the Services or Documentation). Nothing in this Agreement shall convey any title or proprietary right or Intellectual Property Rights in or over the Services and the Documentation to the Customer or any third party.

6.2 Aggregated Statistics. Customer acknowledges and agrees that The Ecological Entrepreneur generates, compiles, stores and uses aggregated data and system usage, analytics and diagnostic information (“Aggregated Statistics”) to monitor and improve the Services, assist in the delivery of Support Services, and for the creation of new products and services. As between The Ecological Entrepreneur and the Customer, all right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein, belong to and are retained solely by The Ecological Entrepreneur. The Aggregated Statistics are not considered Customer Data.

6.3 Feedback. If Customer or any User provides feedback or suggestions about any aspect(s) of the Services or any other The Ecological Entrepreneur’s services, by mail, email, telephone, or otherwise, including without limitation, suggesting new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”) then Customer hereby grants The Ecological Entrepreneur a non-exclusive, royalty-free, transferable, sub-licensable, irrevocable and perpetual worldwide license to use, profit from, disclose, publish, keep secret and/or otherwise exploit such Feedback in any medium without further obligation or compensation to Customer or any User. Feedback will not constitute Customer’s Confidential Information.

7. USAGE MONITORING

7.1 Customer acknowledges and agrees the Services may include real-time built-in volume counters and other reporting tools which are necessary for The Ecological Entrepreneur to monitor and verify the exact (volume) usage of the Services by the Customer, its Beneficiaries and Users. Such usage controls and tools enable The Ecological Entrepreneur to verify whether the Customer is using the Services in accordance with the Agreement and the applicable Subscription Plan. The limitations of the license are set out in the Order Form, the applicable Subscription Plan and in these Terms of Service.

8. CONFIDENTIALITY

8.1 Confidentiality. Either Party may disclose or make available to the other Party Confidential Information. Each Receiving Party shall treat all Confidential Information received from Disclosing Party as confidential, keep secret and protect such Confidential Information with not less than a reasonable degree of care and shall not disclose it to any third party other than its Affiliates, agents, employees, advisors or consultants (or with respect to The Ecological Entrepreneur, its suppliers and licensors), and only where: (a) such disclosure is necessary for the performance of Services or with respect to the Agreement; and, (b) such Affiliates, agents, employees, advisors or consultants (or with respect to The Ecological Entrepreneur its suppliers and licensors) are bound by a confidentiality obligation at least as strict as included in this article 8. Confidential Information disclosed under the Agreement shall not be used by the Receiving Party for any purpose other than as required for the performance of its obligations under the Agreement. The Receiving Party shall take precautions to maintain the confidentiality of the Disclosing Party’s Confidential Information.

8.2 Exclusions. Confidential Information shall not include information which:

a) is published or comes into the public domain other than by a breach of the Agreement;

b) can be proven to have been known by the Receiving Party before disclosure by the Disclosing Party;

c) is lawfully obtained from a third party other than by a confidentiality breach of such third party; or,

d) can be shown to have been created by the Receiving Party independently of the disclosure and without use of the Disclosing Party’s Confidential Information.

8.3 Judicial or Governmental Order. A Party that receives Confidential Information may disclose such Confidential Information to the extent required in accordance with a judicial or other governmental order, provided that the Receiving Party:

a) gives the Disclosing Party reasonable notice prior to such disclosure to allow it a reasonable opportunity to seek a protective order or equivalent, unless the Receiving Party is legally prohibited from doing so;

b) reasonably cooperates with the Disclosing Party in its reasonable efforts to obtain a protective order or other appropriate remedy;

c) discloses only that portion of the Confidential Information that is legally required to disclose; and,

d) uses reasonable efforts to obtain reliable written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection available under applicable law or regulation.

8.4. Duration. The obligations in this article 8 shall replace any prior non-disclosure agreement signed between the Parties (if applicable) and shall survive during the Term and for three (3) years after the termination or expiration of the Agreement; provided however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

9. PAYMENT TERMS AND FEES

9.1 Fees. All Subscription Fees and other amounts payable by the Customer under this Agreement shall be paid by Customer immediately upon ordering the Services through the online workflow by means of one of the following methods:

(a) Online Payment by Credit Card: the Customer may pay via credit card (credit cards as accepted by The Ecological Entrepreneur) using the secure online payment portal made available by The Ecological Entrepreneur; or

(b) Bank Wire Transfer: the Customer may remit payment by bank wire transfer to the account designated by The Ecological Entrepreneur using the secure online payment portal made available by The Ecological Entrepreneur.

Customer shall pay The Ecological Entrepreneur such amounts in the currency set out in the Order Form. For specific services (including Implementation and Activation Services), additional fees may apply if set forth in the Order Form. Unless otherwise explicitly set out in the Order Form, the Subscription Fee payable during the Initial Term or each subsequent Renewal Term shall constitute a minimal fee to be paid by the Customer.

9.2 Invoices, No Refunds. Unless otherwise agreed in the Order Form, all undisputed amounts in The Ecological Entrepreneur’s invoices are due upon issuance of the relevant invoice, which is at the moment of ordering of the Services (or upgrade of Subscription Plan, if applicable). Invoices are to be disputed within thirty (30) days as from the date of invoice in writing by email sent to The Ecological Entrepreneur via email to  invoicing@t-ee.eu specifying in reasonable detail the nature of the dispute, together with any appropriate information supporting Customer’s position (“Invoice Dispute Period”). Beyond this Invoice Dispute Period, invoices shall be deemed accepted. Unless prohibited by applicable law or if explicitly mentioned in the Order Form, all payments of invoices issued by The Ecological Entrepreneur to Customer shall be final and non-refundable. In the event Customer is declared to be in a state of bankruptcy, applies for a suspension of payments, is subjected to a general seizure of assets, goes into liquidation or is dissolved, the full amounts payable under the Agreement will become due immediately, if permitted under applicable law.

9.3 Electronic Invoicing and PEPPOL. Customer explicitly accepts electronic invoicing. Invoices will be sent to the Customer’s invoicing email address, as specified in the Order Form (and/or via the PEPPOL network, if applicable). The Customer shall be responsible for maintaining an active and functioning PEPPOL Participant ID and Access Point, if applicable.

9.4 Late Payment. If The Ecological Entrepreneur does not receive payment by the applicable due date, Customer shall pay interest charges from the time the payment was due at the rate that is the lower of one percent (1%) per month/twelve percent (12%) per annum or the highest rate permissible under applicable law. In addition, Customer shall pay all reasonable costs incurred by The Ecological Entrepreneur as a result of the enforcement of Customer’s payment obligations. If Customer fails to pay any undisputed outstanding amounts within ten (10) days from receipt of a written default notice, The Ecological Entrepreneur shall be entitled to suspend its obligations (e.g. by suspending access to the Services) and Customer’s rights hereunder without further notice to Customer or liability to The Ecological Entrepreneur until receipt of payment of such outstanding amounts.

9.5 No Setoff; Taxes. Amounts due under the Agreement are payable to The Ecological Entrepreneur without set off or counterclaim and without deduction, and are net of any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value-added tax, whether or not withheld at the source (collectively, “Sales Tax”). Except as forbidden by applicable law, The Ecological Entrepreneur may require that Customer submits applicable Sales Taxes to The Ecological Entrepreneur. However, the preceding sentence does not apply to the extent that Customer is tax exempt, provided it gives The Ecological Entrepreneur a valid tax exemption certificate within thirty (30) days of the Effective Date. The Ecological Entrepreneur’s failure to include any applicable tax in an invoice will not waive or dismiss the Parties’ rights or obligations pursuant to this article 9.5. If applicable law requires withholding or deduction of Sales Taxes or any other tax or duty, Customer shall separately pay The Ecological Entrepreneur the withheld or deducted amount, over and above fees due. For the avoidance of doubt, this article 9.5 does not govern taxes based on The Ecological Entrepreneur’s net income.

9.6 Module Extensions and Subscription Plan Upgrades or Downgrades. Customer may upgrade its Subscription Plan or order additional Module Extension(s) linked to the Services at any moment during the Term, which results in additional Subscription Fees being due. An upgrade of Subscription Plan or Module Extensions can be ordered by signing a new Order Form or addendum or through ordering via the in-application or online workflow experience. Upgrade of Subscription Plans and additional Module Extensions apply by default for the remaining part of the Term, but will only be activated upon Customer’s explicit request. If the Customer upgrades its Subscription Plan during an ongoing subscription year, the applicable Subscription Fees for the upgraded Subscription Plan shall be calculated on a pro-rata basis for the remainder of the then-current subscription year and invoiced to the Customer accordingly. The Customer may also downgrade its Subscription Plan to any other Subscription Plan offered by The Ecological Entrepreneur at the end of the Initial Term or at the end of any Renewal Term (if applicable). Any such downgrade shall take effect upon commencement of the next Renewal Term, and the Subscription Fees payable for that Renewal Term shall be adjusted to reflect the downgraded Subscription Plan.

9.7 Price increase. Notwithstanding anything to the contrary in the Agreement, The Ecological Entrepreneur may as from the expiration of the Initial Term automatically increase all Subscription Fees by five percent (5%) per year unless Parties have agreed upon different Subscription Fees in an Order Form upon renewal.  

10. REPRESENTATIONS AND WARRANTIES; DISCLAIMER

10.1 Mutual Representations and Warranties.

(a) Each Party represents, warrants and covenants that: (i) it has the full power and authority to enter into this Agreement and to perform its obligations hereunder; and, (ii) its acceptance of and performance under this Agreement shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.

(b) Except for the limited warranties set forth in article 10.1(a), the Services, the Implementation and Activation Services and Documentation are provided ‘as is’ and ‘as available’. The Ecological Entrepreneur hereby disclaims all conditions and warranties, whether express, implied, statutory, or otherwise. The Ecological Entrepreneur specifically disclaims all implied conditions and warranties of merchantability, fitness for a particular purpose, title, and non-infringement, and all warranties arising from course of dealing, usage or trade practice. Except for the limited warranties set forth in article 10.1(a), The Ecological Entrepreneur makes no warranty of any kind that the Services, the Implementation and Activation Services and the Documentation or results of the use thereof, will meet Customer’s or any other person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system or other services, or be secure, accurate, complete, free of harmful code, or error-free or that the Services are secure from hacking or other unauthorized intrusion or that Customer Data will remain private or secure.

10.2 Customer’s Warranties.

The Customer represents, warrants and covenants that:

(a) no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by the Agreement;

(b) it has accurately identified itself, its Beneficiaries (where applicable) and it has not provided any inaccurate information about itself to The Ecological Entrepreneur or through the Services;

(c) it is a legal entity authorized to do business pursuant to applicable law;

(d) it shall accurately identify each User and shall not provide any inaccurate information about such User to The Ecological Entrepreneur or through the Services; and,

(e) Customer owns or otherwise has, and will have, the necessary rights and consents in and relating to the Customer Data so that, as received by The Ecological Entrepreneur and processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law.

11. INDEMNIFICATION

11.1 The Ecological Entrepreneur’s Indemnification.

a) The Ecological Entrepreneur shall defend and indemnify the Customer as specified herein against any claims brought by third parties to the extent such claim is based on an infringement of the Intellectual Property Rights of such third party by the Services in Europe, but excluding any claims resulting from the Customer’s, the Beneficiaries’ or the User’s (i) unauthorized use of the Services, (ii) modification of any of the Services by Customer or a third party, (iii) failure to use the most recent version of the Services made available to the Customer or the failure to integrate or install any corrections to such Services issued by The Ecological Entrepreneur, if The Ecological Entrepreneur indicated that such update or correction was required to prevent a potential infringement, or (iv) use of the Services in combination with any products or services which are not prior approved by The Ecological Entrepreneur. Such indemnity obligation shall be conditional upon the following: (i) The Ecological Entrepreneur is given prompt written notice of any such claim; (ii) The Ecological Entrepreneur is granted sole control of the defense and settlement of such a claim; (iii) upon The Ecological Entrepreneur’s request, the Customer fully cooperates with The Ecological Entrepreneur in the defense and settlement of such a claim, at The Ecological Entrepreneur’s expense; and (iv) the Customer makes no admission as to The Ecological Entrepreneur’s liability in respect of such a claim, nor does the Customer agree to any settlement in respect of such a claim without The Ecological Entrepreneur’s prior written consent. Provided these conditions are met, The Ecological Entrepreneur shall indemnify the Customer for the damages and costs incurred by the Customer as a result of such a claim, as awarded by a competent court of final instance, or as agreed to by The Ecological Entrepreneur pursuant to a settlement agreement.

b) In the event the Services, in The Ecological Entrepreneur’s reasonable opinion, are likely to or become the subject of a third-party infringement claim (as per article 11.1 (a)), The Ecological Entrepreneur shall have the right, at its sole option and expense, to: (i) modify the ((allegedly) infringing part of the) Services so that they become non-infringing while preserving equivalent functionality; (ii) obtain for the Customer a license to continue using the Services in accordance with these Terms of Service; or (iii) terminate the relevant license and pay to the Customer an amount equal to a pro rata portion of the Subscription Fee paid to The Ecological Entrepreneur hereunder for that portion of the Services which is the subject of such infringement.

c) As far as permitted under applicable law, the foregoing states the entire liability and obligation of The Ecological Entrepreneur and the sole remedy of the Customer with respect to any infringement or alleged infringement of any Intellectual Property Rights caused by the Services or any part thereof.

d) The exclusions and limitations as set out in article 12 (Limitation of Liability) apply to The Ecological Entrepreneur’s liability for its indemnification obligations under this article 11.1.

11.2 Customer Indemnification. Customer shall indemnify, hold harmless, and, at The Ecological Entrepreneur’s option, defend The Ecological Entrepreneur, its Affiliates and each of their respective directors, officers, employees and consultants from and against any losses resulting from any third-party claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's Intellectual Property Rights or other rights and any third-party claims based on Customer's, the Beneficiaries’ or any User's: (i) negligence or willful misconduct, (ii) use of the Intellectual Property Rights of The Ecological Entrepreneur in a manner not authorized by this Agreement, (iii) modifications to the Intellectual Property Rights of The Ecological Entrepreneur not made by The Ecological Entrepreneur; (iv) failure to make required updates to the Services; or, (v) violation of any applicable laws, rules or regulations through or related to the use of the Services, provided that Customer may not settle any third-party claim against The Ecological Entrepreneur unless The Ecological Entrepreneur consents to such settlement, and further provided that The Ecological Entrepreneur will have the right, at its option, to defend itself against any such third-party claim or to participate in the defense thereof by counsel of its own choice.

12. LIMITATION OF LIABILITY

12.1 Liability cap. To the full extent permitted by applicable law, in no event will The Ecological Entrepreneur’s aggregate liability (per event or series of connected events) arising out of or related to this Agreement exceed (i) the total amounts paid by the Customer to The Ecological Entrepreneur under this Agreement for the Services in the twelve (12) months preceding the event given rise to the claim, or (ii) two thousand five hundred euro (2,500 EUR), whichever is greater.

Nothing in this Agreement shall exclude or limit either Party’s liability for death or personal injury caused by its (or its agent’s or subcontractor’s) negligence, or for willful misconduct or fraud.

12.2 Excluded Damages. To the full extent permitted by applicable law, in no event will The Ecological Entrepreneur be liable under or in connection with the Services or this Agreement for any indirect, punitive, special consequential or similar damages, including but without limitation damages for lost profits or loss of business, lost revenue, loss or corruption of data, loss of customers and contract, loss of goodwill, the costs of procuring replacement goods or services or otherwise howsoever, and third parties’ claims, in each case arising out of or related to the Agreement, regardless of whether The Ecological Entrepreneur was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable. The Ecological Entrepreneur shall also not be liable for damages connected to or as a result of our of scope use of the Services by the Customer, its Beneficiaries and/or Users.    Furthermore, to the full extent permitted by applicable law, The Ecological Entrepreneur shall not be liable for any errors, inaccuracies, or deficiencies in the results, analyses, or outputs generated through the Services, nor for any errors or defects caused by inaccurate, incomplete, or erroneous data, materials, or information provided by the Customer or by any third party (including but not limited to third parties connected to the Services via API connection). The Services are solely intended to report based on Customer Data and do not include any verification or validation services.

12.3 Application. The liabilities limited by this article 12 apply to the benefit of The Ecological Entrepreneur and its Affiliates and each of their respective licensors, suppliers, advertisers, agents, directors, officers, employees, consultants, other representatives and third party contractors.

12.4 Exclusion of extra-contractual liability. To the full extent permitted under applicable law, each Party hereby excludes any extra-contractual liability related to the formation, performance, and termination of this Agreement (and guarantees that its affiliated persons exclude this) with respect to any other Party and the directors, employees, shareholders, and direct or indirect auxiliary persons of such other Party and its affiliated persons to the fullest extent permitted by law (including gross negligence).

12.5 Liability acknowledgement. Customer acknowledges and agrees that The Ecological Entrepreneur has based its pricing on and entered into the Agreement in reliance upon the limitations of liability as set out in this Agreement and that such terms form an essential basis of the bargain between the Parties. If applicable law limits the application of the provisions of this article 12, The Ecological Entrepreneur’s liability will be limited to the maximum extent permissible. Customer acknowledges and agrees the limitation of liability as set out in this article 12 will remain in force, even in the event of termination of the Agreement for any reason whatsoever.

13. TERM AND TERMINATION

13.1 Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement's express provisions, will continue in effect for the period set out in the Order Form (the "Initial Term"). Upon expiration of the Initial Term or any subsequent Renewal Term (as defined below), this Agreement will automatically and tacitly renew for additional periods equivalent in length to the Initial Term (each a "Renewal Term" and together with the Initial Term, the "Term") unless earlier terminated pursuant to this Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least three (3) months prior to the expiration of the then-current Term. The Initial Term, or each Renewal Term (if applicable), constitutes the minimum commitment period undertaken by the Customer and is indicated in the online ordering workflow, the Order Form or the Customer’s admin account to commence at the respective Period Start Date and to end on the Period End Date.

13.2 Termination for Cause. Either Party may without prejudice to its rights to damages and any other rights, remedies and/or claims to which it may be entitled by law, terminate the Agreement effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such material breach. The Customer acknowledges and agrees that following circumstances shall be considered a material breach by the Customer: (i) any use of the Services outside the scope of the right of use or license granted to Customer as set out in the Agreement, the applicable Order Form or the relevant Subscription Plan; (ii) any breach by Customer of applicable data protection legislation; (iii) any breach by the Customer of article 8 (Confidentiality); and, (iv) any violation or misappropriation by Customer of The Ecological Entrepreneur’s Intellectual Property Rights. The foregoing (i) through (iv) shall apply also to Customer’s Beneficiaries and Users’ acts or omissions which cause the material breach to occur.

13.3 Termination in case of Bankruptcy. Subject to applicable law, either Party may terminate immediately the whole or any portion of the Agreement without any judicial intervention, without being liable for compensation and without prejudice to its rights to damages and any other rights, remedies and/or claims to which it may be entitled by law, upon providing the other Party with written notice of termination if the other Party becomes insolvent, is subject to voluntary or involuntary bankruptcy, insolvency or similar proceeding or otherwise liquidates or ceases to do business.

13.4 Suspension or Termination of Access. Without limiting The Ecological Entrepreneur’s other rights and remedies, and notwithstanding anything to the contrary in this Agreement, The Ecological Entrepreneur may suspend or terminate a Customer’s or other User’s access to any portion or all of the Services at any time if: (i) The Ecological Entrepreneur reasonably determines that: (a) there is a threat or attack on any of the Intellectual Property Rights of The Ecological Entrepreneur; (b) Customer’s or any User's use of The Ecological Entrepreneur’s Intellectual Property Rights disrupts or poses a security risk to the Services or to any other customer or supplier of The Ecological Entrepreneur; (c) Customer, or any User, is using the Services for fraudulent or illegal activities; (d) subject to applicable law, the Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or, (e) The Ecological Entrepreneur’s provision of the Services to the Customer or any User is prohibited by applicable law; (ii) any supplier to The Ecological Entrepreneur has suspended or terminated The Ecological Entrepreneur’s access to or use of any third-party services or products required to enable Customer to access the Services; (iii) Customer fails to pay to The Ecological Entrepreneur any undisputed amount due hereunder and the Customer fails to cure such failure to pay within ten (10) days from the date of a written notice of default from The Ecological Entrepreneur to the Customer; or, (iv) The Ecological Entrepreneur ceases to be able to own/operate the Services for any legal or regulatory reason(s) (collectively, a “Service Suspension”). The Ecological Entrepreneur will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that the Customer or any User may incur as a result of a Service Suspension. In the event The Ecological Entrepreneur is entitled to terminate the Agreement for cause as per article 13.2, The Ecological Entrepreneur may alternatively, at The Ecological Entrepreneur’s option, suspend the right of use granted hereunder instead of immediately terminating the Agreement, without any formalities or indemnities being required and without prejudice to any other right or remedy available to The Ecological Entrepreneur pursuant to the Agreement or under applicable law.

13.5 Effects of Termination. Upon termination of the Agreement for whatever reason:

1. Customer’s rights to the Services will automatically cease and all rights and licenses granted to Customer pursuant to these Terms of Service shall automatically terminate;
2. Customer, its Beneficiaries and Users shall immediately cease all use of the Services and delete, destroy, or return all copies of the Services and the Documentation in its possession or control;
3. The Ecological Entrepreneur will delete (or return upon explicit written request of the Customer received within thirty (30) days of the effective date of termination) all Customer Data stored in the Services and will decommission Customer’s active environment and/or accounts where the Services are operated. Customer however acknowledges the Services may include functionalities to download such Customer Data directly from the Services which Customer shall in first instance use to obtain the Customer Data;
4. Subject to article 13.5(c), each Party shall return or destroy all copies of the other Party’s Confidential Information (except as required to comply with any applicable law provided the confidentiality obligations herein shall apply until for the duration set out in article 8) and upon written request from the Disclosing Party certify, in writing, the destruction thereof;
5. Customer shall promptly pay to The Ecological Entrepreneur all fees and amounts accrued, earned, or otherwise due up to and including the effective date of termination. This includes, without limitation: (i) the full Subscription Fee for the then-current Initial Term or, if applicable, the Renewal Term (regardless of the actual date of termination), and (ii) any additional fees or charges incurred or committed prior to the effective date of termination. Notwithstanding the foregoing, in the event of termination by the Customer for cause due to a material breach by The Ecological Entrepreneur, the Customer shall not be obligated to pay the Subscription Fee for any unused portion of the Term following the effective date of such termination.

14. MAINTENANCE AND SUPPORT

14.1 Maintenance Services. As of the Effective Date, if applicable and in consideration of the timely payment by the Customer of the Subscription Fees (and any other fees if applicable), The Ecological Entrepreneur shall provide Maintenance Services to the Customer during the Term of the Agreement. The Ecological Entrepreneur shall where practicable give to the Customer at least ten (10) Business Days' prior written notice of Scheduled Maintenance that is likely to affect the availability of the Services or are likely to have a material negative impact upon the Services.

14.2 Support Services. As of the Effective Date, if applicable and in consideration of the timely payment by the Customer of the Subscription Fees (and any other fees if applicable), The Ecological Entrepreneur shall provide Support Services in relation to Incidents and as set out in the Service Level Agreement, available on The Ecological Entrepreneur’s website here: https://www.esgpro.app/nl/service-level-agreement.

15. HOSTING AND SUBCONTRACTING

15.1 Hosting. The Services are offered as a managed hosted SaaS solution. Hosting services are provided by The Ecological Entrepreneur’s hosting partner.

15.2 Subcontracting. Customer acknowledges and agrees the Services may contain functionalities provided by The Ecological Entrepreneur’s subcontractors or third party providers and that The Ecological Entrepreneur is entitled to engage such subcontractors and third party providers for the performance of its obligations under this Agreement.

16. MISCELLANEOUS

16.1 Entire agreement. The Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior oral or written agreements, representations or understandings between the Parties relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in the Agreement shall affect, or be used to interpret, change or restrict, the express clauses of the Agreement.

16.2 Waiver. The Agreement may be modified or amended only by written agreement executed by a duly authorized representative of both Parties hereto. Any term or condition of the Agreement may be waived only by a written document signed by the Party entitled to the benefits of such term or condition. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent.

16.3 Severability. If any provision of the Agreement is determined to be illegal, void, invalid or unenforceable, in whole or in part, the remaining provisions shall nevertheless continue in full force and effect. The provisions found to be illegal, invalid or unenforceable shall be enforceable to the full extent permitted by applicable law. Each Party shall use its best efforts to immediately negotiate in good faith a valid replacement provision with an equal or similar economic effect.

16.4 Survival. Expiration, termination or cancellation of the Agreement shall be without prejudice to the rights and liabilities of each Party which have accrued prior to the date of termination, and shall not affect the continuance in force of the provisions of the Agreement which are expressly or by implication intended to continue in force, including, without limitation, the provisions relating Intellectual Property Rights, Confidential Information and Limitation of Liability.

16.5 Assignment. The Ecological Entrepreneur may assign or transfer its rights, obligations and duties under the Agreement to any third party. Customer shall not assign or otherwise transfer any of its rights or obligations under the Agreement without The Ecological Entrepreneur’s prior written consent. The Ecological Entrepreneur’s consent should be requested by registered letter, disclosing the identity of the prospective transferee. Subject to any restrictions on assignment herein contained, the provisions of the Agreement shall inure to the benefit of and shall be binding upon the Parties hereto and their respective heirs, legal representatives, successors and assignees.

16.6 Force Majeure. Neither Party will be responsible or liable for any failure or delay in the performance of its obligations under the Agreement arising out of or caused by Force Majeure. In the event of Force Majeure, the Party shall inform the other Party at least within reasonable time about the nature of the Force Majeure and the fact that it wants to rely on this clause. The Party must, within reasonable time, provide the other Party with the evidence of the existing of the Force Majeure, the date when the Force Majeure comes or has come into effect, and also when it will have ceased to exist. In case of Force Majeure, the Party is obligated to mitigate damages and must use its best efforts to keep the consequences to a minimum. In the event of failure to comply with the abovementioned procedure, the Party shall be prevented to rely on the Force Majeure event and the Force Majeure clause.

16.7 Publicity. The Ecological Entrepreneur shall have the right to use any trademarks, logos or other marks of the Customer (including the Customer’s corporate name) for Customer references on The Ecological Entrepreneur’s website, social media announcements and sales presentations.

16.8 Relationship between the Parties. The relationship between The Ecological Entrepreneur and the Customer is that of independent contractors. Neither Party is agent for the other and neither Party has any authority to execute any contracts, whether expressly or by implication, in the name of the other Party, without that Party’s prior written consent for express purposes connected with the performance of the Agreement.

16.9 Notices. Any notices required to be served under the Agreement shall in first instance be given by electronic mail. Notices given to the Customer shall be done to the Customer’s Notification Email Address set out in the Order Form (or in case no email address is available, per post to the Customer’s registered address). Notices to The Ecological Entrepreneur shall be done by email to contact@t-ee.eu. All notices given by electronic mail, shall only be valid in case confirmation of receipt was expressly given by electronic mail by the receiving Party. In case no confirmation of receipt was given within five (5) Business Days, all notices can be done in writing and served by personal delivery or registered letter, addressed to either Party at its address set out in the Order Form or to such other address as a Party may designate by notice hereunder. All notices shall be deemed to have been given either (i) if by hand, at the time of actual delivery thereof to the receiving Party at such Party’s address, (ii) if sent by overnight courier, on the next Business Day following the day such notice is delivered to the courier service, or (iii) if sent by registered or certified mail, on the 3^rd Business Day following the day such mailing is made.

16.10 Conflict. In case of conflict between the provisions included contractual documents executed between the Parties, the first document shall prevail on the latter: (i) the Order Form and its Schedules, (ii) Data Processing Agreement, (iii) the Terms of Service, unless explicitly agreed otherwise in written between the Parties.

16.11 Interpretation. In this Agreement (unless the context shall otherwise require or permit):

1. Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted;
2. Words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and incorporate; and each case vice versa;
3. The headings or captions to the articles are for ease of reference only and shall not affect the interpretation or construction of the Agreement.

16.12 Language. The Agreement in the English language only; which language shall be controlling in all respects. Furthermore, all communications and notices made or given pursuant to the Agreement shall be in the English, French or Dutch.

16.13 Applicable law and jurisdiction. The Agreement shall be governed by and construed in accordance with the laws of Belgium and the Parties hereto submit to the exclusive jurisdiction of the competent courts of Antwerp, department Antwerp. The United Nations Convention for the International Sale of Goods shall not apply to the Agreement.

DATA PROCESSING AGREEMENT

1. INTRODUCTION

This data processing agreement (hereafter “Data Processing Agreement”) supersedes and replaces all previous agreements made in respect of Processing Personal Data and data protection between the Parties.

The Ecological Entrepreneur shall act as a Processor and the Customer shall act as a Controller in respect of the Services provided by The Ecological Entrepreneur to the Customer related to the Agreement. Individually, the Controller and Processor may each be referred to as a “Party” and collectively as the “Parties”.

In the performance of the Services, the Processor will receive and Process Personal Data for the benefit and on behalf of the Controller, according to the instructions and purpose defined by the Controller in the Data Processing Details (as defined below in article 2). The legislation applicable to the Processing of Personal Data includes, without limitation the GDPR (as defined below in article 2), including any applicable implementing laws.

By means of this Data Processing Agreement, Parties wish to lay down their specific agreements in respect to Processing Personal Data within the framework of the Agreement and related to the provisioning of the Services in general.

2. DEFINITIONS

“Data Processing Details” refers to Schedule 1 to this Data Processing Agreement that includes more information about the  Controller’s instructions, such as the purpose, object and nature of Processing, the categories of Personal Data being Processed and the categories of Data Subjects in scope;

“GDPR” means Regulation (EU) 2016/679 of the European Parliament and of Council of 27 April 2016 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);

“Sub-processor” means any third party engaged by the Processor to Process Personal Data on behalf of the Controller in connection with the provision of the Services under this Agreement;

All other terms and definitions written with capital letters and which are not defined expressly in this Data Processing Agreement, are defined as set out in the GDPR or the Terms of Service.

3. OBJECT OF THIS DATA PROCESSING AGREEMENT

3.1 This Data Processing Agreement determines the conditions of the Processing by the Processor of Personal Data communicated by or at the initiative of the Controller in the context of the Agreement and the Customer’s use of the Services in general. The nature, object and purpose of Processing, the categories of Personal Data Processed, as well as the categories of the Data Subjects are set out in the Data Processing Details (Schedule 1). The Processing will exclusively take place for the benefit of the Controller and for the purpose as defined by the Controller in the Data Processing Details (Schedule 1). The Processor shall immediately inform the Controller if, in its opinion, an instruction infringes applicable (data protection) legislation.

3.2 The Processor will only process the Personal Data according to the documented instructions of the Controller, and will not use these Personal Data for its own purpose. If the Processor is legally obliged to proceed with any Processing of Personal Data, the Processor, unless this would violate applicable mandatory rules, will inform the Controller of such obligation.

4. TERM

4.1 This Data Processing Agreement is applicable to all Processing of Personal Data executed in the context of the Agreement and applies as long as the Processor processes Personal Data on behalf of the Controller in the context of the Agreement and the provisioning of the Services. This Data Processing Agreement terminates automatically upon termination of the Agreement (or at the moment the Processing by the Processor in context of the Agreement is terminated). The provisions of this Data Processing Agreement that are either expressly or implicitly (given their nature) intended to have effect after termination of the Data Processing Agreement shall survive the end of the Agreement related to the Personal Data communicated by or at the initiative of the Controller in the context of the Agreement.

5. TECHNICAL AND ORGANIZATIONAL MEASURES

5.1 The Processor offers adequate guarantees with regard to the implementation of appropriate technical and organizational measures to ensure the Processing complies with requirements as defined in GDPR and so the protection of the Data Subject's rights is guaranteed. The technical and organizational measures implemented by the Processor are as being communicated to the Controller in the Data Processing Details (at the moment of signing this Data Processing Agreement and as may be updated from time to time). The Controller acknowledges those measures to be adequate for the Processing of Personal Data on his behalf at the moment of signing of this Data Processing Agreement.  

5.2 The Processor shall take all appropriate technical and organizational measures as referred to in article 32 GDPR to ensure an adequate level of security appropriate to the risk.

5.3 In case the Controller is requesting specific technical and organizational measures to be implemented by the Processor in addition to the default measures taken by the Processor, the Controller will reimburse the Processor for implementing such measures according to article 14 “Costs” of this Data Processing Agreement.

5.4 Adherence by the Processor to an approved code of conduct as referred to in article 40 GDPR, or an approved certification mechanism as referred to in article 42 GDPR may be used as an element of proof of sufficient guarantees as referred to in GDPR.

6. DATA RETENTION

6.1 The Processor will not keep Personal Data any longer than required for Processing of such Personal Data in the context of the Agreement and for the provisioning of the Services. The Controller will neither instruct the Processor to store any Personal Data longer than necessary. The agreed retention period (as defined by the Controller) is set out in the Data Processing Details (Schedule 1).

6.2 At the choice of the Controller, the Processor shall delete or return all Personal Data to the Controller after the end of the provision of Services relating to Processing, and delete existing copies unless Union or Member State law requires storage of the Personal Data.

6.3 The Services may include download functionalities at disposal of the Controller to enable the Controller to download its data. To the extent such functionalities are available, the Controller shall use such functionalities to extract or delete its data.

7. CONFIDENTIALITY

7.1 Only those employees, contractors or agents of the Processor who are involved in the Processing of Personal Data may be informed about the Personal Data and only to the extent as reasonably necessary for the performance of the Agreement. The Processor ensures that such persons authorized to process the Personal Data are committed to confidentiality by contract or are under an appropriate statutory obligation of confidentiality.

8. DATA SUBJECT RIGHTS

8.1 Taking into account the nature of the Processing, the Processor shall use best efforts, by taking appropriate technical and organizational measures, to assist the Controller in the fulfillment of its obligation to respond to requests from Data Subjects.

8.2 For all services performed by the Processor in the context of the treatment of such requests from Data Subjects, the Controller will reimburse the Processor in accordance with article 14 “Costs” of this Data Processing Agreement. Such reimbursement by the Controller shall not be due (i) in case the Data Subject is invoking its rights because of a Personal Data Breach proven attributable to the Processor or, (ii) in case such assistance by the Processor does not exceed two (2) hours of work during the term of the Agreement.

9. DUTY TO NOTIFY

9.1 Upon becoming aware of a Personal Data Breach, the Processor shall notify the Controller thereof without undue delay by contacting the contact person indicated in the Data Processing Details (or alternatively by sending notice to the Notification Email Address set out in the Order Form). The Processor’s contact person for any data protection related matters can be contacted via contact@t-ee.eu.

9.2 At the request of the Controller, the Processor will cooperate with the investigation and elaboration of the measures necessary in case of a Personal Data Breach. The Parties will keep each other informed of any new developments about any Personal Data Breach related to the Services and of the measures they take to limit its consequences and to prevent the repetition of such Personal Data Breach.

9.3 It is the sole responsibility of the Controller to report any Personal Data Breach to the Supervisory Authority or the Data Subject(s), as required.

10. SUB-PROCESSING

10.1 The Controller expressly authorizes the Processor to engage Sub-processors in relation to the Processing of Personal Data for the performance of the Agreement and the provision of Services in general. To this extent, the Controller grants a general written authorization to the Processor to decide with which Sub-processor(s) the Processor cooperates for the fulfilment of its obligations under the Agreement. The Processor shall keep a list of all Sub-processors engaged, which is also included in the Data Processing Details (Schedule 1). The Ecological Entrepreneur publishes the most updated version of the Sub-Processor list online on its website: https://www.esgpro.app/nl/subprocessors. The Processor will inform the Controller of any intended changes concerning the addition or replacement of Sub-processors via the Controller’s contact person included in the Data Processing Details (or alternatively by sending notice to the Notification Email Address set out in the Order Form). The Controller will have the right to object to the addition or replacement by addressing The Ecological Entrepreneur in writing. Parties will in such case discuss the addition, replacement or alternative in good faith and as soon as reasonably possible after the Controller's written notice of objection.

10.2 In case the Processor engages a Sub-processor for carrying out specific Processing activities, the same or similar data protection obligations as set out in this Data Processing Agreement shall be imposed on that Sub-processor by way of a written agreement, in particular providing sufficient guarantees to implement appropriate technical and organizational measures (and complying with the relevant technical and organizational measures). Where a Sub-processor fails to fulfil its data protection obligations, the Processor shall remain fully liable to the Controller for the performance of such Sub-processor’s obligation.

11. INTERNATIONAL DATA TRANSFERS

11.1 For specific purposes, functionalities available in the Services or particular Processing Activities (and in general for the execution of the Processor’s contractual obligations under the Agreement), Personal Data can be transferred outside the European Economic Area (“EEA”) to a third country or an international organization. Such international transfers of Personal Data are considered an instruction of the Controller and shall be subject to (i) the execution of Standard Contractual Clauses as issued by the European Commission (and as may be amended from time to time), or (ii) any other accepted mechanism for international data transfers as set out in the applicable (data protection) legislation (e.g. binding corporate rules, adequacy decisions issued by the European Commission, etc.).

11.2 In case the transfer of Personal Data to a third country or an international organization is mandatory under applicable EU or Member State law to which the Processor is subject, the Processor shall be allowed to perform such transfer and shall inform the Controller of that legal requirement before such Processing, unless that law prohibits such information on important grounds of public interest.

12. DATA PROTECTION IMPACT ASSESSMENT AND PRIOR CONSULTATION

12.1 If the Controller performs a Data Protection Impact Assessment (“DPIA”) (article 35 GDPR) or prior consultation (article 36 GDPR) linked to the Processing of Personal Data in the context of the performance of the Agreement, the Processor shall reasonably assist the Controller by providing assistance. In such case, the Controller will reimburse the Processor for services rendered according to article 14 “Costs” of this Data Processing Agreement. Such reimbursement of costs shall not apply in case (i) the assistance requested from the Processor is less than two (2) working hours during the term of the Agreement, or (ii) the DPIA or prior consultation is triggered by a Personal Data Breach proven attributable to the Processor.

13. AUDIT RIGHT

13.1 The Controller has the right to perform audits regarding the compliance by the Processor with its obligations under this Data Processing Agreement and the applicable data protection legislation. The Processor shall use its reasonable efforts to cooperate with such audits and to make available all information necessary to prove its compliance with the obligations of the Processor. The Controller shall notify the Processor of such audit at least one (1) month prior to the date on which the audit will be performed, by given written notice to The Ecological Entrepreneur via contact@t-ee.eu.

13.2 In case an audit is being performed, all parties involved (including but not limited to third party auditors) shall first sign a specific non-disclosure agreement issued by The Ecological Entrepreneur with respect to such audit and the audit results. When performing any such audit, the confidentiality obligations of the Processor with respect to third parties must be taken into account. Both Parties and their auditors must keep the information collected in connection with an audit secret and use it exclusively to verify compliance with the Data Processing Agreement and the applicable data protection legislation. The Controller has the option to perform the audit itself or to assign an independent auditor.

13.3 The Controller and the Processor and where applicable their representatives, shall reasonably cooperate, upon request, with the Supervisory Authority in the performance of its tasks.

13.4 The Controller will reimburse the Processor for the services provided in relation to the audit in accordance with article 14 “Costs” of this Data Processing Agreement. It being understood, such reimbursement shall not apply in case (i) the audit is a result of a Personal Data Breach proven attributable to the Processor or, (ii) in case the Processor’s assistance does not exceed two (2) working hours during the term of the Agreement.

14. COSTS

14.1 The assistance to be performed under this Data Processing Agreement for which the Processor may charge the Controller, will be invoiced on the basis of the hours worked and the applicable standard hourly rates of The Ecological Entrepreneur (EUR 195/hour VAT excluded). The Processor will invoice these amounts on a monthly basis and a payment term of thirty (30) days as from the invoice date applies. The provisions set forth in article 9 (‘Payment Terms and Fees’) of the Terms of Service shall apply.

15. LIABILITY

15.1 Subject to the maximum extent permitted under applicable law, the provisions of the Terms of Service concerning limitation of liability also apply to this Data Processing Agreement and the damages arising out of it.

16. MISCELLANEOUS

16.1 The provisions of the miscellaneous section as set out in the Terms of Service concerning interpretation, survival, severability, waiver and applicable law and jurisdiction are applicable to this Data Processing Agreement as well.  

Schedule 1: Data Processing Details

1) Role of the Parties:

Parties acknowledge and agree the Customer is considered Data Controller and The Ecological Entrepreneur is considered Data Processor related to the performance of the Agreement and the provisioning of the Services in general.

2) Notification Email Address for Data Protection:

The Ecological Entrepreneur: contact@t-ee.eu

Customer: Customer’s Notification Email Address

3) Purpose of Processing:

Provisioning of the Services and Support Services to the Customer, its Beneficiaries (if applicable) and Users. The Services enable the Customer to analyze, control, and manage its sustainability efforts, by collecting, calculating, analyzing, reporting and visualizing relevant data and metrics. These sustainability efforts can be shared with third parties through an online dashboard.

4) Object of Processing:

• User identification details and credentials are processed for user and license management.
• Other Personal Data uploaded into the Services may be processed for the provisioning of the Services or Support Services and for the general functioning of all features available in the Services.  

5) Nature of Processing:

Processing, collection, storage, structuring, combination, interpretation, erasure, sharing, analyzing communication and transfer of Personal Data.

6) Categories of Personal Data:

Depending on the functionalities used within the Services, The Ecological Entrepreneur processes different categories of Personal Data. In general, the categories of Personal Data processed by The Ecological Entrepreneur when using the Services may include: identification data (e.g. first name, last name, email address, phone/mobile number), professional data (e.g. function title, legal representative), User logs and any Personal Data uploaded or shared by Users into the Services or when requesting Support Services.

7) Category of Data Subjects:

All Users having access to the Services and all Data Subjects whose Personal Data is uploaded into the Services or shared in relation to Support Services. The Customer confirms these Data Subjects are by default the Customer’s employees (including contractors).

8) Sub-processors:

The Ecological Entrepreneur engages Sub-processors in relation to the performance of the Agreement and in general for ensuring all functionalities are available within the Services. Which Sub-processors apply depends on the functionalities and set-up requested by the Customer and might change overtime. At moment of contract signature, the following Sub-processors are engaged:

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The most recent version of the Sub-Processors list representing the Sub-Processors engaged by The Ecological Entrepreneur (as updated from time to time) is available on The Ecological Entrepreneur’s website: https://www.esgpro.app/nl/subprocessors.

9) Technical and Organizational Measures:

The Ecological Entrepreneur implements appropriate technical and organizational measures to ensure adequate security when using the Services. The Ecological Entrepreneur is continuously updating such measures. At time of signature of the Agreement, the following technical and organizational measures are implemented (non-exhaustive list as may be updated from time to time):

• RBAC on field and object level with principle of least privilege
• Protection against session hijacking (HTTPS, HttpOnly and Secure cookies).
• Strict CORS policy
• Email & password authentication from Better Auth
• Email verification required
• Scrypt password hashing function
• Cloudflare Turnstile bot protection and rate limiting on all auth endpoints
• Database back-ups and PITR
• Vercel Firewall DoS mitigation
• TLS encryption in transit
• AES-256 data-at-rest encryption

10) Retention Period:

The Ecological Entrepreneur will not store Personal Data any longer than necessary for the provisioning of the Services. That means that by default, Personal Data will be stored by The Ecological Entrepreneur until termination of the Agreement. The Services include functionalities enabling the Customer to delete Personal Data from the Services at any moment in time (e.g. manually or upon request to the Support Desk).

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