Artificial intelligence solutions to integrate data information flows
PLEASE READ THESE "General Terms of Use" OF DigiTrans (“Terms of Use”) CAREFULLY as these Terms of Use apply to the access to the Platform can be offered on an "as a service" basis to DigiTrans’ customers, and on a local installation of the Client (“On Premise”). The provisions as stated in these Terms of Use apply to each use of the Platform to the fullest extent relevant.
By signing this document or by clicking on the check-box "I agree" in the Platform and/or by accessing or in any way using all or any part of the Platform you expressly agree to be legally bound by these Terms of Use. You agree that the Agreement is enforceable to the same extent as any other written negotiated agreement accepted by you. If you do not agree to these Terms of Use, or you do not have full authority to bind Company, do not purchase, access, or in any way use the Platform.
1. Definitions
In these Terms of Use, the terms and expressions written with a capital letter shall have the meaning given to them below, unless the context necessarily requires otherwise:
1.1.“Agreement” means these Terms of Use, together with the Statement of Work, Privacy Policy and any other relevant documentation provided by DigiTrans to the Company in relation to the Platform that governs the contractual relationship between the Parties with respect to the provision of the access to the Platform by DigiTrans to Company;
1.2.“Affiliate” means, in relation to any company, any other person or entity that directly or indirectly Controls, is Controlled by, or is under common Control with such company;
1.3. "Business Day" means every day except Saturdays, Sundays and official public holidays in Belgium;
1.4. “Charges” means the amounts due by the Company to DigiTrans for the provision of the access to the Platform and/or the Services;
1.5. “Company” or “you” means the legal person that expressly accepts these Terms of Use and/or purchases, accesses or in any way uses all or any portion of the Platform and/or the Services;
1.6. “Company Account” means the account that will be created if Company wants to activate the Platform. In case the Platform is offered On Premise, the Company Account refers to the single account created On Premise, for the Company;
1.7. “Company IP” means all Company Data and information input into the Platform by Company and any other materials provided by Company hereunder;
1.8. “Company Data” means the set of data belonging to the Company (with the exclusion of DigiTrans’ intellectual property and/or data owned by DigiTrans) which is processed, stored and/or transported in or through the systems and infrastructure of the Company and/or DigiTrans;
1.9. “Company Personal Data” means the Personal Data of Company and its Users Processed by DigiTrans in the course of providing the Services;
1.10. "Control" means the ability to control or direct, directly or indirectly, the board, executive body, decision making process or management of an entity by virtue of ownership, right of appointment, right to control election or appointment, voting rights, the ability to control the exercise of voting rights, management agreement or any other agreement;
1.11. “Damage” means any costs, delays, damage, loss, expenses and other liabilities incurred by a Party;
1.12. “Data Privacy Laws” means all applicable data protection and privacy Laws that apply to DigiTrans’ performance hereunder or to Company's receipt and use of the Platform and/or the Services;
1.13. "DigiTrans" means DigiTrans with registered office at Poeldreef 99, 2950 Kapellen, Belgium and registered in the company register under the number 0722.659.403.
1.14. “Documentation” means the user guides and any other documents or information made available by DigiTrans to Company in relation to the access to the Platform;
1.15. "Error" shall mean any material, verifiable and reproducible failure of the Platform to conform in all material respects to features and functions as described in the Documentation (specifically excluding any nonconformity resulting from Misuse);
1.16. “Inappropriate Content” means any content which is or may be construed as obscene, indecent, pornographic, seditious, offensive, defamatory, libelous, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous, harmful to children, violative of third party intellectual or industrial property rights or otherwise in breach of any Law;
1.17. “Law(s)” means all applicable local, state, national, and international laws, treaties and regulations, codes, ordinances, rules, restrictions, licenses, and judicial or administrative orders that are in effect at the moment of acceptance of these Terms of Use by Company or that may come into force thereafter;
1.18. “Means of Access” has the meaning as set out in clause 5.2;
1.19. "Misuse" shall mean any (i) use of the Platform otherwise than in accordance with these Terms of Use, the Documentation or any other written instructions provided by DigiTrans, (ii) modification or change of the Platform without DigiTrans’ written consent, (iii) use of non-current releases and/or Updates of the Platform, (iv) problems caused to the Service by Company IP, combining or merging the Platform with any hardware or software not authorized in writing by DigiTrans to be so combined or merged by Company, or any other use contrary to the terms of these Terms of Use;
1.20. “On Premise” has the meaning as set out in clause 2;
1.21. “Party/Parties” means DigiTrans and/or Company as applicable;
1.22. “Personal Data” has the meaning as specified in Data Privacy Laws;
1.23. “Platform” means the cloud-based software provided by DigiTrans to Company and accessible via the internet, including any modifications, enhancements, additions, extensions, translations and derivative works and programming code and other associated technologies related to the Platform. The Platform is described in the Documentation;
1.24. “Privacy Policy” means DigiTrans’ privacy policy applicable to the provision of access to the Platform, and which forms an integral part of the Agreement;
1.25. “Process” shall have the meaning attributed to it in applicable Data Privacy Laws (and “Processed” and “Processing” shall be construed accordingly);
1.26. “Retention Period” means a period of three (3) months after the effective date of termination of the access to the Platform;
1.27. “Service(s)” means the services provided by DigiTrans to the Company under these Terms of Use;
1.28. “Service Levels” means the quality and availability standards applicable to the Platform, as set forth in clause 7;
1.29. “Statement of Work” means the statement of work defining the project, the specific terms and conditions in respect of the Platform, Services and/or professional consultancy services in respect of the Platform;
1.30. “Term” means the subscription term purchased by Company and during which Company is granted the right to access and use the Platform as set forth hereunder;
1.31. “Terms of Use” means the present “DigiTrans software – General Terms of Use”;
1.32. “Updates” means updates, enhancements, derivatives, improvements to and translations of the Platform;
1.33. “User” means a natural person permitted by Company to use the Platform by or on behalf of Company in accordance with the and within the limits of the Agreement;
1.34. "Workaround" means a suggested set of actions or recommendations intended, when properly implemented, to correct an Error in the Platform and/or to restore the functionality of the Platform or to provide equivalent or similar, but not inferior, functionality.
2. Platform
2.1. Provision of the PlatformThe Platform is a cloud software designed and built by DigiTrans which allows the Company to automatically migrate or synchronize data between its different transport logistics software solutions, and/or to visualize such information in the Platform’s user interface (if applicable). The Platform enables the Company to have different kinds of transport logistics data present in one of its systems to be readily available in other systems and/or the Platform’s user interface.The Platform can, in exceptional cases and only as agreed between Parties, be provided to the Company on a machine at the Company’s offices or in a datacenter as indicated by the Company (“On Premise (Platform)”). All provisions in this Agreement will also be applicable when the Platform is provided On Premise to the Company, unless otherwise agreed.
2.2. Specific provisions In case of On Premise Platform: - such installation will be set up solely and exclusively by DigiTrans once, and connected to all relevant third party services the Platform requires to function correctly; - the On Premise Platform will be installed on a server environment, made available by the Company, compliant with the server specifications provided prior to DigiTrans; and- the Company must provide remote access to the DigiTrans test and production environments to facilitate analysis of Incidents.
3. Use of the Platform
3.1. Subject to full and timely payment of all applicable Charges, DigiTrans hereby grants to Company a limited, non-transferable, non-exclusive right to access and use and allow access and use by the Users of the Platform and Documentation during the Term.
3.2. The right of use as set out in clause 3.1 is limited at all times to the internal business purposes of Company and subject to the terms of the Agreement.
3.3. The Platform may only be accessed and used: (a) during the Term of the subscription to the Platform for which the Company has paid, without prejudice to DigiTrans’ right to suspend or terminate the Agreement before the expiry of the Term; (b) in conformity with the server capacity or any other parameter of usage as indicated by DigiTrans; and (c) in accordance with the instructions as issued by DigiTrans to Company, including the Documentation.
3.4. DigiTrans expressly has the right to monitor the use of the Platform and to verify whether the use is in compliance with the Agreement.
3.5. The Company expressly agrees that for the provision of the Platform, DigiTrans has the right to use any of its Affiliates or third-party subcontractors (including but not limited to hardware, software, networking, storage, and related technology required to run any part of the Platform).
3.6. The Company may solely use the Platform as and in a way as expressly agreed in writing by DigiTrans. For example, but without limitation, the Company shall not (nor will allow or facilitate a third party to): (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party (except Users) the Platform or access to the Platform in any way; (b) modify, alter, tamper with or make derivative works based upon the Platform; (c) to the extent allowed under applicable law, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Platform or access the Platform in order to: (i) build a competitive product or service; (ii) build a product using similar ideas, features, functions or graphics of the Platform; or (iii) copy any ideas, features, functions or graphics of the Platform; (d) access or use the Platform in a way intended to avoid incurring Charges or exceeding usage limits or quotas; (e) copy or reproduce all or any part of the Platform; or (f) remove any titles or trademarks, copyrights or restricted rights notices in the Platform.
3.7. Company may order additional licenses of use and/or change subscription plan at the then-current conditions offered by DigiTrans. In case of a trial version or test version of the Service, Company may use the specified Service only, and restricted to the timeframe it was explicitly authorized to evaluate, use or test such Service. All other provisions of the Agreement, as far as relevant, will apply to such use.
4. Subscription and Payment of Charges
4.1. In order for Company to be granted access to and use of the Platform, an upfront payment of an amount of credits or any other type of upfront payment as indicated by DigiTrans on its Platform or website shall be purchased.
4.2. In case the Company wants to activate the Platform, a Company Account needs to be created. When the Platform is offered On Premise, only one single account will be created for the Company.
4.3. The upfront payments exclude VAT and other applicable taxes. The payment can vary on the amount of service requests the Company chooses to push through the Platform.
4.4. The Charges shall be paid in the currency and payment methods (e.g. credit card) indicated by DigiTrans on its website or Platform, or as described in the purchase order, in their entirety and in advance, at the moment of purchase, by Company.
4.5. The payment methods which are accepted for the payment of the Charges are indicated by DigiTrans on its website or on the Platform. DigiTrans reserves the right to exclude some payment methods or to include additional ones, at its own discretion.
4.6. All payment obligations are non-cancellable and all Charges paid are non-refundable except as otherwise set forth in the Agreement. All payments will be upfront, except if otherwise indicated by DigiTrans on the Platform or website, or as otherwise agreed between Parties.
4.7. An electronic invoice in relation to the purchased Services and access to the Platform, the On Premise Platform, or the technical support related to the On Premise Platform will be provided to the Company via the email address indicated by the Company.
5. Company Obligations
5.1. Company shall be solely responsible for (i) its actions and the actions of the Users while using the Platform, (ii) the correctness of the Company Data, and (iii) the contents of its transmissions through the Platform. Company shall ensure that all Users are provided with full information of and shall comply with Company’s obligations under the Agreement. Company agrees, and agrees to have its Users agree: (a) to abide by all Laws applicable to Company’s use of the Platform, including, without limitation, laws relating to intellectual and industrial property rights and laws on the protection of Personal Data and all standard policies regarding Internet regulations, policies and procedures then in effect of DigiTrans (which can be delivered upon request); (b) not to upload or distribute files that contain viruses, malicious files or other harmful code or any other similar software or programs that may access or damage the operation of the Platform, or another’s computer or other devices. In case of a breach against this clause, Company will fully assist DigiTrans, at Company’s own cost and expense, in mitigating the effects of the virus, without prejudice to DigiTrans’ other rights and remedies in accordance with applicable law and the Agreement; (c) not to interfere with or disrupt the Platform, the data contained in the Platform or networks connected to the Platform; (d) not to send or store any Inappropriate Content through the Platform;(e) not to attempt to gain unauthorized access to the Platform or the related systems or networks;(f) not to disclose screenshots or visualizations obtained through the Platform to third parties and keep such information confidential.
5.2. Access to and use of the Platform requires the creation of an account, by entering the requested information and choosing a login and a password. Such means of access (jointly referred to hereinafter as "Means of Access") are strictly personal to the User and cannot be shared with other Users and/or third parties. The Company will maintain and promptly update the Means of Access in order to keep these Means of Access true, accurate, current and complete. Company is responsible for the safeguarding, confidentiality, security and appropriate use of the Means of Access by itself and its Users and undertakes to take all steps to prevent any unauthorized third party from gaining knowledge and making use thereof. Company will notify DigiTrans immediately of the loss, theft, breach of confidentiality or any risk of misuse of the Means of Access Company undertakes to comply strictly with and to ensure the compliance with the appropriate procedures regarding access to the Platform. Company guarantees to inform all of its Users of all appropriate information. Company is liable for any claims, demands, actions and Damages (including reasonable attorneys’ fees and court costs) arising from or created by any of its acts or omissions related to the access or use of the Platform.
5.3. The Platform (when not deployed as On Premise) is set up as a cloud-based web application, and is hosted by an Amazon Web Services (“AWS”) cloud infrastructure. DigiTrans relies on AWS infrastructure to ensure proper backups. Furthermore, DigiTrans relational database is backed up daily and automatically, and backups are redundantly replicated across the AWS datacenters. The Company agrees and accepts the AWS terms available on https://aws.amazon.com/legal and agrees that AWS has the right to unilaterally change these terms. DigiTrans shall in no event provide any warranty in respect of AWS hosting services. Company gives AWS the permission to process all Company Personal Data as contemplated by this Agreement. Company shall (i) comply with all applicable legal requirements regarding privacy and data protection and (ii) provide sufficient notice to and obtain sufficient consent and authorization from end users and any other party providing Company Personal Data to the Company, DigiTrans and AWS in order to permit the processing of the data by the Company, DigiTrans, AWS and their respective Affiliates, subsidiaries and service providers. The maximum liability of DigiTrans and AWS for all claims in respect of the hosting services, is limited to only direct damages and will in no event exceed the amount of hosting fees paid by the Company to DigiTrans during the past twelve (12) months prior to the event which gave rise to the claim. These limitations are applicable regardless to the determined liability based on breach of contract, risk liability, breach of terms of warranty or any other legal ground.
5.4. In case the Platform is being offered On Premise to the Company, the Platform is hosted and maintained by the Company, or a third party assigned by the Company. Therefore, DigiTrans accepts no responsibility for the correct and continuous operation of this On Premise installation of the Platform. Furthermore, it is the sole responsibility of the Company to set up an appropriate backup strategy for the On Premise Platform, and to provide and maintain connectivity between the On Premise Platform and other third party systems, as required for the On Premise Platform to operate correctly.
5.5. Except in case of an On Premise Platform, all data is stored inside the Amazon datacenter(s) on state of the art hardware managed entirely by Amazon. These datacenters are secured appropriately, both physically (human access to the servers themselves) as electronically (unauthorized access to the data). Appropriate firewall rules and other restrictions are in place to limit access to DigiTrans data, and secure communication channels (SSL) are used to communicate between DigiTrans components. Companies connect to DigiTrans through the web browser. These connections are always secured using the HTTPS protocol, and DigiTrans’ identity is verified by a valid SSL certificate. No other publicly accessible access points are present. DigiTrans takes extreme precautions to prevent unwanted access to other customer's data. In particular, the Company’s ("Tenant") identity is validated at database and storage level, so that no data belonging to another Tenant can ever be involuntarily be retrieved. DigiTrans relies on AWS infrastructure to ensure proper backups. All files stored on the system are consistently replicated to another AWS datacenter in a different location. Furthermore, the DigiTrans relational database is backed up daily and automatically, and backups are redundantly replicated across the AWS datacenters. The DigiTrans data files, combined with the DigiTrans database provide the full state of the DigiTrans platform. New and redundant servers can be easily setup to run against this data, should one of our servers cease to operate correctly. Unless otherwise provided in writing, the Company, and not DigiTrans, is responsible for taking all appropriate steps to back-up or otherwise secure or protect the Company Data.
5.6. Company agrees that Company is solely responsible for (and that DigiTrans, acting as a mere service provider, has no responsibility to Company or to any third party for) any data, content and information that Company creates, transmits, displays or stores through the Platform and/or for Company IP, and for the consequences of Company’s actions by doing so. Company has no obligation to monitor Company IP, but Company acknowledges that DigiTrans has the right at all time, to remove Company IP which infringes applicable Laws and/or the Agreement.
5.7. Company shall notify DigiTrans, within the shortest term possible after becoming aware of it, of any infringement against the Company's obligations as set out in this clause 5 and Company shall, without prejudice to DigiTrans’ other rights and remedies under applicable law and the Agreement, assist DigiTrans, at Company’s own cost and expense, in any way DigiTrans sees fit to remedy such breach and/or to limit its consequences.
5.8. Company, and not DigiTrans, is responsible for obtaining, maintaining and paying for all hardware, software and communications equipment necessary to access and use the Platform and comply with the requirements as set out in the Documentation.
5.9. In its use of the Platform, Company shall be solely responsible for and at all times shall comply with all Laws applicable to it, including without limitation Laws governing anti-discrimination, privacy and data retention, direct marketing and publicity and intellectual and industrial property rights. It will not use Company Data within the Platform which is contrary to Laws or good practice, including but not limited to Company Data which is illegal, cruel, slanderous, unlawful, threatening, violating of third party rights or which may not be processed on the basis of Laws or contract.
6. Service Delivery concerning the Platform (explicitly excluding On Premise Platform)
6.1. DigiTrans will use commercially reasonable efforts to provide the Platform in material conformity to what has been set out in the relevant Documentation.
6.2. The Platform shall be delivered during the Term, and in accordance with the provisions as set out in the Agreement, with the exclusion of any other commitment not expressly made by DigiTrans in the Agreement.
6.3. In providing access to the Platform, DigiTrans will use commercially reasonable efforts to comply with the Service Levels under the conditions set out in clause 7 of these Terms of Use.
6.4. Taking into account the nature of the Platform as a service model, Company understands and agrees that DigiTrans has the right to suspend access to the Platform due to scheduled downtime for maintenance purposes, unscheduled maintenance, and system outages. Although DigiTrans will use reasonable efforts to allow internet access to the Platform, Company agrees that since the internet is neither owned nor controlled by any particular entity, DigiTrans can make no guarantee that a User will be able to access the Platform at any given time or that the Platform will never be interrupted or that the Platform (and any features thereof) will always be fully available and functional.
6.5. In its own full discretion and according to its own timetable (although preferably during planned maintenance), DigiTrans may, but is under no obligation whatsoever to, issue Updates to the Platform. Company has only access to the latest version of the Platform. Company is not entitled to access components that are offered as add-ons or options in an Update or new version and that were not licensed to the Company. All costs associated with the implementation of Updates on Company's side, will be borne by Company. DigiTrans reserves the right, when issuing an Update to the Platform, to remove any existing feature or functionality from the Platform and the Company has no right to demand those features or functionalities to be supported by DigiTrans; where such removal would have a material impact on the Platform (in DigiTrans’ own discretion), DigiTrans will inform the Company thereof reasonably in advance but no later than thirty (30) days prior to implementing the Update unless where such notice would be impossible or impractical due to legal or security requirements or performance related issues. Unless explicitly stated otherwise, any new feature that augments or enhances the current Service, including new releases, shall be subject to these Terms of Use.
6.6. Customized Services, if relevant, may not be compatible with Updates. Any requests for compatibility of a customized Service with an Update are subject to an express agreement between the Parties.
6.7. The Parties agree that DigiTrans may in its sole discretion make changes to the Platform from time to time, or may suspend or terminate certain parts of the Platform. In the latter case, DigiTrans will inform Company thereof via e-mail, via the Platform and/or via its website.
7. Service Levels concerning the Platform (explicitly excluding On Premise Platform)
7.1. In case an Error or another incident/problem concerning the Platform is discovered or reported to DigiTrans, DigiTrans will pioritise and correct, to the extent possible, all such Error or other incidents/problems on the basis of its reasonable assessment of their severity level. The four (4) possible severity levels are:
7.2. With respect to each Error/incident/problem reported to it, DigiTrans will use commercially reasonable efforts to provide an initial response within the applicable "Target Response Time" described in the table below, depending on the severity level of the reported Error/incident/problem.
"Business Hours" means between 9 AM to 4:30 PM CE(S)T on Business Days.
7.3 Users may submit each Error/incident/problem in any of the following ways:(a) By emailing, well documented to: support@digitrans.io(b) By telephone call to the general company phone number as indicated on the company website (if any) and followed-up with a well-documented email to support@digitrans.ioSeverity Level 1 and 2 Error/incident/problem must be submitted by telephone and confirmed by email.The Target Response Time shall be counted as from the moment DigiTrans has confirmed in writing it has received the Users’s incident report.
7.4. Telephone support is available in Dutch and English during business hours (i.e. 9:00 AM – 4:30 PM) .
7.5. Company and the Users shall provide all reasonable assistance and information that DigiTrans may require in order to respond and/or resolve the incident, problem and/or Error discovered or reported to DigiTrans, including a provision by the Users of a remote access to their desktops.
7.6. Are excluded from the calculation of the availability of the Platform, the scheduled maintenance of the Platform as communicated in advance to Company, as well as the unavailability of the Platform due to a force majeure event, an unscheduled maintenance due to an emergency, outage and/or Misuse.
7.7. Unless otherwise agreed between Parties, the installation of the On Premise Platform will be out of scope of the support provided by DigiTrans to the Company, under this Agreement (see article 2).
8. Intellectual Property Rights
8.1. DigiTrans (and its licensors, where applicable) owns all right, title and interest, including all intellectual and industrial property rights, in and to the Services and the Platform. Without prejudice to the foregoing, Company expressly agrees that the Platform is or can be, partially or wholly based, on open-source software. In addition, DigiTrans alone (and its licensors, where applicable) own all right, title and interest in and to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Company or any other party relating to the Platform.
8.2. The Agreement does not convey to Company any rights of ownership in or related to the Platform, the Platform or the intellectual and industrial property rights owned by DigiTrans (or its licensors, where applicable) except as explicitly provided in the Agreement. Any trademarks used by DigiTrans or its Affiliates/licensors within or associated with the Service, are trademarks of DigiTrans or third parties, and no right or license is granted to Company to use them.
8.3. Company owns (and its licensors, where applicable, own) all right, title and interest, including all intellectual and industrial property rights, in and to the Company IP. Company grants to DigiTrans a non-exclusive, worldwide, royalty-free right and license to use, adapt, display, process, perform and distribute all Company IP, in connection with the provision of access to the Services and/or the Platform by DigiTrans to Company and Company’s use thereof and this for the entire Term.
8.4. The Company acknowledges and accepts that DigiTrans has the right to use Company Data for statistical purposes. The Company agrees that DigiTrans may disclose Company data or Company IP to other User or third parties, if necessary for the functioning of the Platform.
9. Warranties concerning the Platform (explicitly excluding On Premise Platform)
9.1. DigiTrans warrants that the Platform will perform substantially in accordance with the Documentation and will undertake reasonable efforts to provide support and maintenance services to this end as provided in these Terms of Use, it being understood that it is nearly impossible (if not technically impossible or financially impractical) to develop software that will be bug free or that will perfectly conform to a user's purposes. Other than as provided in these Terms of Use, the Platform and the Services are provided “as is” and DigiTrans makes no representations or warranties, express or implied, of any kind whatsoever (including, without limitation, satisfactory quality, fitness for a particular purpose, custom or usage in trade). DigiTrans further makes no representations or warranties regarding, without limitation, the security, integrity, efficiency or capabilities of the Platform. DigiTrans may not be able to respond to or resolve all issues of Company, and makes no promises, guarantees or assurances to that extent.
9.2. Company's exclusive remedy for damage or loss arising from breach of the warranty as set out in clause 9.1 shall be, at DigiTrans’ option, (a) the replacement of the Services at no cost to Company; (b) a Workaround and/or Update to address the Error in a manner that provides Company with reasonably equivalent functionality as provided in the Documentation, at no cost to Company or (c) in the event, DigiTrans is unable to replace or correct such failure by exercising commercially reasonable efforts for a reasonable period of time, either Party may terminate the Agreement and Company’s sole additional remedy shall be for DigiTrans to provide a pro-rata refund of any pre-paid Charges for periods after the effective date of termination.
9.3. DigiTrans shall have no liability or responsibility for problems in the Platform caused by Misuse, the alteration or modification of the Platform by Company, for problems arising out of the malfunction of hardware, network services (whether or not internally with the Company), firewalls, or Errors caused by third party software or hardware or other infrastructure, or the configuration of such items.
9.4. Company warrants that:(a) Company has obtained any and all authorizations necessary for the Parties to fully perform the Agreement, and for the Parties to use the Company IP to be used in conjunction with the Platform; and(b) Company IP does not violate any Laws or another person's or persons' rights.
9.5. Each Party further warrants that: (a) the execution and performance of the Agreement are within its respective corporate powers, have been duly authorized by all necessary corporate action, do not require any consent of or filing with any third party or governmental body or agency, and do not violate any Law, agreement, or the like or their respective charter or by-laws; and (b) the Agreement will constitute valid and binding obligations of that Party enforceable against it in accordance with its terms.
10. Indemnities
10.1. DigiTrans shall indemnify, defend and hold the Company harmless in accordance with the provisions of this clause 10.1 from and against any third-party claim asserted against Company that the Services and/or Platform (when used in accordance with its Documentation) directly infringe or misappropriate the intellectual property rights of such claimant registered in or valid in the jurisdiction to which the Agreement is subject (an "IP Claim"). DigiTrans will pay those costs and damages finally awarded or settled (upon terms acceptable to DigiTrans) against Company based on such IP Claim, within the limits set forth in clause 11 and provided that: (a) Company promptly notifies DigiTrans in writing of such IP Claim; (b) DigiTrans has sole control of and Company reasonably cooperates in all respects in the defence of each such IP Claim and all related settlement negotiations and Company does not make any admission or disclosure or otherwise take any action prejudicial to DigiTrans; and (c) such IP Claim does not relate to any act of Company, including (without limitation) a change in the Platform, a combination of the Platform (and underlying Services) with or the addition of the Platform (and underlying Services) to products or other software which has not been developed and supplied by DigiTrans, or failure to install an Update where installation would have removed the cause of the infringement, or any breach of these Terms of Use by Company.
10.2. If a final judgment is entered against Company on any such IP Claim, or if in DigiTrans’ reasonable opinion Company is likely to become subject to a successful IP Claim, then Company shall permit DigiTrans, at DigiTrans’ option and expense, either: (a) to procure for Company the right to continue using the Platform; (b) to replace or modify the same so that it becomes non-infringing, with functionality essentially being equal; or (c) terminate the Agreement and provide a pro-rata refund of any pre-paid Charges for periods after the effective date of termination of the Agreement.
10.3. The foregoing provisions of this clause 10 set forth the entire and exclusive liability of DigiTrans with respect to any IP Claim.
10.4. Without prejudice to DigiTrans’ other rights and remedies under applicable Law and the Agreement, Company will defend any third-party claim against DigiTrans and pay any damages and costs finally awarded against DigiTrans by a court of competent jurisdiction or that are included in a settlement approved by Company to the extent Company IP or DigiTrans’ access or use thereof is held to infringe intellectual or industrial property rights of any third party.
10.5. Without prejudice to DigiTrans’ other rights and remedies under applicable Law and the Agreement, Company shall indemnify DigiTrans against any and all damages, losses, expenses arising as a result of any action or claim that Company IP constitutes Inappropriate Content.
11. Liability
11.1. Except in case of DigiTrans’ fraud or willful misconduct ("opzet"/"dol"), the cumulative total aggregate liability of DigiTrans for a failure to comply with an obligation under the Agreement which is imputable to DigiTrans is limited to the Charges paid by Company to DigiTrans in respect of the relevant Company during the twelve (12) calendar months preceding the moment the Damage occurred.
11.2. Without prejudice to clause 11.1, DigiTrans is never liable for any indirect damage and/or consequential damage, such as but not limited to loss of profit, loss of income, loss of anticipated savings, loss of opportunity, loss of customers, claims of logistic service providers or other third parties, damage as a result of loss and/or corruption of data, loss of goodwill and reputational damage.
11.3. DigiTrans can never be held liable for errors, mistakes, troubles resulting from the operation of the Platform or incorrect communications, availability, timeliness, deletion, failure to store any Company Data or communications/personalization settings, or changes on the Platform. Neither can DigiTrans be held liable for wrongful information (e.g. locations, default time slots, default time windows, validations, orders, or notifications, etc.) or any other news on the Platform.
12. Term, Suspension and Termination of the Service
12.1. The Agreement is concluded for an indefinite Term.
12.2. In the event of a breach by Company of any of the terms of the Agreement which would be susceptible to cure, DigiTrans shall have the right to (a) immediately suspend without prior notice a part or all access to the Platform, and/or (b) terminate the Agreement without court intervention upon five (5) days prior written notice specifying the breach to the other, provided that such breach has not been cured within said five (5) days’ period, and/or (if applicable) (c) disable or otherwise render the On Premise Platform useless. Without excluding any other events being considered a material breach of the Agreement, the Parties agree that the following examples of events shall be considered as a material breach by Company: (a) any form of Misuse of the Platform; (b) any non-compliance with limitations on the right of use granted under these Terms of Use; (c) any non-compliance with limitations on the use of the Platform as stated in these Terms of Use or under applicable Laws; (d) any infringements on DigiTrans’ intellectual and/or industrial property rights; (e) any non-compliance with payment obligations. An unauthorized disclosure or distribution of the Platform by Company and/or User, and/or any repeated (whether consecutive or not) failure to pay Charges when due constitute material non-curable breaches of the Agreement, entitling DigiTrans (without prejudice to its other rights and remedies) to either suspend and (whether subsequently or not) terminate the Agreement with immediate effect without prior court intervention on providing written notice to Company. This clause is without prejudice to DigiTrans’ other rights and remedies under applicable Law and contract.
12.3. In the event of termination of the Agreement by DigiTrans for Company’s uncured material breach, the right of use granted to Company in respect of the Platform hereunder shall immediately cease and Company shall, upon the effective date of such termination, cease using the Platform and, at DigiTrans’ discretion, immediately return to DigiTrans or destroy all copies of the Documentation. In the event of destruction, Company shall provide DigiTrans with an affidavit of destruction in a form acceptable to DigiTrans certifying that it has destroyed all copies of the Documentation and related confidential information.
12.4. Company has the right to terminate its subscription to the Platform, and therefore the Agreement, by notifying DigiTrans in writing subject to a three (3) month notice period.
12.5. Following the expiration of the Retention Period, DigiTrans will disable the applicable Service account(s) and then delete the associated Company Data in its possession (or in the possession of any DigiTrans’ Affiliate or subcontractor), save for archival copies, which will be erased/destroyed according to DigiTrans’ standard backup and retention process. Other than as described in this clause 12.5, DigiTrans has no obligation to continue to hold, export or return the Company Data. DigiTrans will have no liability for deletion of Company Data so long as it complies with this clause 12.5.
14. Data Processing
All data processed by DigiTrans (such as truck, trailer and chassis location, goods temperatures, etc.), which is no Company Personal Data, shall be used by DigiTrans for analyses and benchmarking, in anonymized format. DigiTrans shall be entitled to disclose such data analysis and benchmarking upon prior written consent of the Company.
15. Miscellaneous
15.1. Subcontracting: DigiTrans reserves the right to subcontract the execution of the Agreement to third parties, including its Affiliates.
15.2. Severability: If any provision of the Agreement is or becomes illegal, invalid or unenforceable, in any respect it shall not affect or impair the legality, validity or enforceability of any other provision of the Agreement; and (ii) if such provision would be legal, valid or enforceable to the extent some part of it were deleted, such provision shall apply with the minimum modifications necessary to make it legal, valid or enforceable.
15.3. Applicable law: The Agreement is governed by and will be interpreted in accordance with Belgian law, without applicability of its conflict of law rules.
15.4. Competent jurisdiction: Any dispute with respect to the validity, interpretation or execution of the Agreement will be finally settled by the competent courts of Antwerp, department Antwerp (Belgium).
