Terms and conditions

General conditions

1. Purpose and scope of general conditions

1.1. These general conditions have the purpose of defining the terms under which, for the benefit of the Client, services are provided by EMOLYTICS, a division of PROFACTS BV whose registered office is at 9840 De Pinte, Grote Steen-weg, 15-17, registered in the Banque Carrefour des Entreprises / Kruispunt Bank der Ondernemingen under no. 0883.521.431.

1.2. The use of the www.emolytics.com website and the Services it gives access to are subject to the unconditional acceptance of these general terms and any other terms or warnings on the EMOLYTICS website.

1.3. Unless otherwise agreed, these general terms are intended to govern the entire contractual relation between EMOLYTICS and the Client. They shall apply inso-far as the parties have not waived them in writing and within the limits provided by the mandatory laws in force. The Client waives to claim the application of his own general or specific terms and conditions, even if they foresee that they will apply exclusively.

1.4. If there is a contradiction between these general terms and the spe-cific written terms relating to EMOLYTICS’ services, the specific conditions shall prevail.

1.5. The Services are only provided by EMOLYTICS to Clients as defined below, and thus strictly in a B2B context. By subscribing to the Services, the Client declares that he meets this description.

2. Definitions

For the application of these general terms, the following shall mean:

  • “Services”: all the personal data processing and behavioral analysis services provided by EMOLYTICS via its website www.emolytics.com, which the Client accesses through online subscription.
  • “Consumer” or “Visitor”: any person who visits the Client’s website(s) and whose movements and/or reactions are filmed or recorded with their consent by EMOLYTICS in order to analyze their behavior.
  • “Client”: a person, entity, organization or company with legal personality which on an independent basis pursues a professional activity, legally constituted following the laws and customs of their country of origin and registered in the official databases, and thus qualifies as a “onderneming” in the sense of article I.1 of the Belgian Economic Code (“Wetboek Economisch Recht”), who have subscribed to use the Services.
  • “Plug-in Code”: the personal and registered code supplied to Clients who have subscribed to Services online via the www.emolytics.com website to activate the collection and transfer of images or other Consumer behavioral data to the EMOLYT-ICS platform for processing for analysis purposes.
  • “Privacy Policy”: EMOLYTICS’ privacy policy, defining the terms for the collection of Visitors’ personal data and the terms under which these data are processed, recorded and stored in compliance with the General Data Protection Regulation (GDPR). The privacy policy is an integral part of these general terms and can be viewed on the www.emolytics.com website via a hyperlink at the bottom of each page of the website.

3. Prices and Services

3.1. The Services provided by EMOLYTICS, via its website, are only accessible through subscription; the price of this varies depending on the number of websites and/or analyses covered. Each subscription grants entitlement, regardless of the plan or price, to the following Services:

  • Collection and processing of images and other behavioral data about Visitors who visit the Client’s website(s)
  • Interpretation and analysis of the data collected to assess the reactions and interest of the Consumer when viewing the Client’s website.
  • Assessment of the Client’s website based on the average responses recorded and the provision of advice to the Client with a view to improving the content or presentation of the websites analysed.

3.2. There are three possible subscription plans: BASIC, PREMIUM and ENTERPRISE. EMOLYTICS shall be entitled to unilaterally change the subscription price during the contract, at least once a year, provided that the Client is informed of this at least one month in advance. Emolytics will also explicitly state the reason of the change of the subscription price.

4. Activation and operation of Services

4.1. The Services mentioned in clause 3.1 are only accessible and offered by EMOLYTICS on its website run under the domain name www.emolytics.com. Access to the Services is subject to prior subscription by the Client to one of the subscription plans offered by EMOLYTICS for a minimum duration of 1 months, renewable in accordance with the contract.

4.2. If the Client choses to subscribe to the “FREE” version of the Services, the Client has access to the Services during 5 calendar days. Afterwards, the Client’s subscription will be automatically transformed to a subscription plan of one (1) month, unless the Client sends EMOLYTICS, by e-mail, a written notice of unsubscription, at the latest 24 hours before the end of the “Free trial” version. Emolytics also provides an unsubscribe functionality within the website that offers the same functionality.

4.3. The subscription will only be approved when the Client provides a valid VAT-number or a company number (or its foreign equivalent).

4.4. Once the subscription is approved, EMOLYTICS will send the Client, by e-mail, a Plug-in Code to activate the Services. The activation of this Plug-in Code does not involve any modification of the Client’s computer configuration; however, the Client may have to include several lines of code required by its website. The data collected are directly transmitted to EMOLYTICS’ server and do not transit via the Client’s installations.

4.5. The Client is not allowed to carry out any recording of the behavioral data of Visitors collected through its website. Any breach of this provision will result in the immediate termination of the contract for serious misconduct, without prejudice to EMOLYTICS’ right to file a complaint with the relevant authorities for unauthorised interception of communication data.

4.6. Access to the www.emolytics.com platform and the related Services are normally functional every day of the year, 24 hours a day. EMOLYTICS nonetheless reserves the possibility of interrupting access to the Services to carry out technical works to improve operation or to carry out website maintenance, prevent damage to its installations or those of its hosting provider, particularly if there are computer viruses or any other attack or intrusion likely to threaten the integrity of data installations or documents hosted there. EMOLYTICS shall undertake to inform the Client in due course of interruptions to the service it has scheduled to carry out maintenance of the website or its machines.

4.7. Activation of the Service also assumes that the Plug-in Code provided by EMOLYTICS has been installed correctly on the Client’s website. It shall ensure that it complies carefully with the installation instructions communicated to it by EMOLYTICS, who may not in any case be held liable for the poor performance or failure to work of the Service due to the incorrect installation of the Plug-in.

5. Invoicing and payments

5.1. Fees owed to EMOLYTICS for Services are billed monthly or annually depending on the subscription plan chosen by the Client. The amount of the monthly or annual fee is billed in advance by means of credit card on the first day of each month or on the anniversary date of the contract, as is applicable; each period started or considered as such in the absence of termination of the contract in accordance with article 9.1 is due in full.

5.2. Unless otherwise stated, all invoices are payable within 30 days of the date of issuance of the invoice (in Euro). Payment is made by bank transfer to EMOLYTICS’ bank account, which is specified in the invoice. All possible bank and exchange charges, which would be levied on EMOLYTICS, will be billed to the Client.

5.3. Every invoice is deemed to have been accepted, unless a specific written objection is sent per e-mail to EMOLYTICS within 8 days of receipt of the in-voice. Beyond that period, the Client’s potential complaints shall not be taken into account by EMOLYTICS.

5.4. If payment is not received by the due date, the amount due shall automatically and without prior notice bear interest at a monthly rate of one per cent (1%) from the due date, every started month shall be deemed to be a full month, and be increased with a conventional, fixed and irreducible indemnity of 10% of the unpaid amount, with a minimum of 75 €. In the event of failure or a delay in payment, EMOLYTICS reserves the right to suspend all performances or deliveries to the Client, whether they are related or not to the unpaid sub-scription fee or fees, until the full repayment of the due amounts, in-cluding interests and indemnities.

6. Liability

6.1. EMOLYTICS shall undertake to use all its available resources to ensure the best access and use of the Services. EMOLYTICS is nonetheless only bound by a duty of best efforts. Consequently, EMOLYTICS shall not be held liable for breakdowns, delays and failures caused by elements or events that are beyond its control and in particular, in case of a failure of the www.emolytics.com website or the Client’s website hosting provider or a breakdown in the transmission network. On his part, the Client guarantees that he tested the Services before installing them on his website, in order to ensure their interoperability with his computing environment; as such he guarantees amongst others having completed security and reliability tests. If any event of default occurs, the Client undertakes to immediately inform EMOLYTICS and to not put the Services on his website, including amongst others the “Emolytics” survey module. Should such tests not have been carried out or in case of failure to prove that those tests have been carried out and that no default was detected, the liability of EMOLYTICS cannot be engaged in case of safety and reliability default of the services and amongst others of the “Emolytics” survey module. Thus, no compensation may be claimed under this heading. The Client shall guarantee EMOLYTICS against any claim that could be brought against it by a third party on that basis and he shall keep EMOLYTICS indemnified for any damage.

6.2. In a general way, EMOLYTICS is only liable for its own actions and cannot in any case be held liable for breaches by its potential subcontractors or suppliers.

6.3. Except in the case of willful deception or gross negligence, EMOLYTICS cannot be held liable for indirect damage suffered by the Client, such as loss of profit, reduction in turnover or any other increase in general costs, or even the loss or degradation of data. EMOLYTICS cannot be held responsible for failures attributable to the Client, nor for any damage caused directly or indirectly by fault or negligence of the Client himself or a person acting on his account and/or on his behalf, nor of a third party. The Client shall guarantee EMOLYTICS against any claim that could be brought against it by a third party on that basis and he shall keep EMOLYTICS indemnified for any damage.

6.4. The Client warrants EMOLYTICS against any action that may be taken by a Visitor who would contest having given his prior consent to the collection and transfer of his behavioral and personal data for analysis by EMOLYTICS. He shall keep EMOLYTICS indemnified for any damage.

6.5. The Client undertakes to comply with the legislation in force and with future legislation on personal data processing. The Client shall amongst others take the necessary measures to ensure adequate, visible and easily accessible information on its website to the Visitor concerning the purposes of the processing of the personal data, and shall ensure that it has obtained his prior and certain consent before any data are collected, using an opt-in banner of the type “Yes, I agree.” and, regarding the use of Web Storage, amongst others by inserting an informative banner on his website, in a visible way, which should indicate “ We use ‘sessionStorage’ and ‘localStorage’ amongst others to improve our website. By continuing to browse on the site, you agree to the terms of use of these data processing techniques. For further in-formation, click here.” or any equivalent message. The link “click here” would lead towards the provisions regarding the Use of Web Storage. In no case can EMOLYTICS be held responsible for the non-compliance with the legislation in force, committed by the Client, nor can EMOLYTICS be held responsible for any damage caused directly or indirectly by fault or negligence of the Client himself or a person acting on his account and/or on his behalf, nor of a third party. The Client shall guarantee EMOLYTICS against any claim that could be brought against it by a third party on that basis and he shall keep EMOLYTICS indemnified for any damage.

7. Ownership of EMOLYTICS’ results and studies

7.1. The results of behavioral analyses carried out by EMOLYTICS are submitted to the Client in XLS file format and may also be viewed in html format through password protected access (username and password), in an area of the website reserved for the Clients. Both the presentation and the structure or content of these reports are protected by copyright and the sui generis rights of the database maker. Subject to what it is specified in clause 7.2, EMOLYTICS reserves all rights to the reports it produces.

7.2. The Client is authorized to use or copy reports submitted to it by EMOLYTICS for the internal needs of its company. However, it is not allowed to carry out any commercial reuse of these reports or of all or a part of the information they contain. The Client is specifically not allowed to sell on the information contained in the analysis reports to direct marketing companies, without EMOLYTICS’ prior and express consent.

8. Non disclosure agreement

All information or data of any nature or kind whatsoever, concerning EMOLYTICS’ business confidentiality, its know-how, its production or marketing methods, its products or services, its internal organisation or its clients and prospects, whether they have been directly or indirectly transmitted to the Client or whether he has had access to them under the subscription contract concluded with EMOLYTICS, are considered to be confidential and shall not be disclosed by the Client to any third party without the prior written consent of EMOLYTICS. The Client is also prohibited from using these confidential data for other purposes than the use of the Services granted to him under the contract concluded with EMOLYTICS. However, this prohibition does not apply to anonymised statistic data contained in the report, which has been delivered to the Client pursuant to the subscription contract with EMOLYTICS and of which he can freely dispose.

9. Duration - termination

9.1. The Client has subscribed to a contract with a duration of one month. This first period of the subscription shall be automatically extended for successive periods of the same duration, in the event no notice has been given e-mail at least 15 days before the end of the subscription period if the subscription is of one month, and at least two months before the end of the subscription period if the subscription is of any other duration.

9.2. In the event of an early termination of the contract, the Client shall pay a compensation for unilateral termination to EMOLYTICS, corresponding to the entire price of the subscription fee for the period in which the termination takes place, minus the amount that has already been paid by the Client for that period, in accordance with article 5 of these general terms and conditions.

9.3. EMOLYTICS may suspend the Client’s access to the Services or terminate the contract finally, without notice or compensation, (1) in the case of serious breach by the Client of the provisions of these general terms and the specific written terms, (2) in the case of fraudulent use of the Services, or (3) if there are complaints by Visitors.

10. Referencing

Unless otherwise stated, the Client agrees that EMOLYTICS references him publicly as being a customer by means of a ad hoc reference on its website or on any other advertising medium (advertising brochure, folder, mailing, etc) and in this context authorizes EMOLYTICS to re-produce its trademark, logo or any other distinctive sign which is likely to identify it and this, in order to enable EMOLYTICS to demonstrate its know-how, within the limits of the commercial practices. Moreover, subject to the prior approval of the Client, EMOLYTICS shall be allowed to produce, at its own cost and expense, short films aiming to promote its activities (e.g. under the form of case studies) for which EMOLYTICS shall present its relationship with the Client, the services provided to the Client and the results thereof. In this context, and subject to the signature of appropriate image rights assignment forms, EMOLYTICS shall be allowed to film and/or photograph Client’s representatives, employees or consultants. Under the aforementioned conditions, EMOLYTICS shall be allowed to use such specific advertising medium over an indefinite period of time without being obliged to adapt the medium in the future, even if certain aspects of it or certain data have become obsolete or have been modified in the meanwhile (e.g. even if the Client’s representatives, employ-ees or consultants do no longer are in a relationship with the Client).

11. Applicable law and competent court

11.1. These general terms are subject to Belgian law.

11.2. In the case of disputes, the courts of the judicial district of Ghent are solely competent. Last update: 02/06/2020