Our Relationship with You
Balencio (“We”/“Our”/”Us”) will perform the services such as described in the Contract (“Services”) on a best effort basis (the “Agreement”).
The performance of the Services will be exclusively governed by the following general terms and conditions. To be valid, any departure from these General Terms and Conditions must be subject to the prior written agreement of Us. These General Terms and Conditions prevail over any conditions stipulated in the client documents.
We reserve the right to alter these General Terms and Conditions. They will apply to any service ordered by the client after communication of the modified General Terms and Conditions.
- In some circumstances, we may subcontract portions of the Services to other service providers, who may deal with You(“the Client”) directly. Nevertheless, Balencio shall remain solely liable to You for the performance of the Services and our other obligations in the Agreement.
- You shall assign a qualified person to oversee the Services.
- You shall provide (or have provide) the support and information that are reasonably required to enable Balencio to perform the Services.
- You recognize, that Balencio is the sole owner of all rights relative to the Balencio and that the right to access to the platform Balencio is personal, non-exclusive and non-transferrable without the prior consent of Balencio.
- You recognize and you shall respect, at any time, the anonymity of the individual respondents and shall not, based upon the Institutional Report as defined below (or any other information directly or indirectly related to Balencio) try to identify specific individual respondents.
- You recognize and accept that the individual answers to Balencio and the Individual Report (as defined below of the individual respondents are confidential and will not be made available to You (or any other member of your personnel/any other third party, including Affiliates as defined below) unless prior, explicit and voluntary approval is obtained by the individual respondent.
- We will provide the Services (as detailed in the applicable Contract) under the terms mentioned under para. 1 of this Agreement.
- We will provide access to Balencio and/or the platform so that individual respondents can participate in Balencio.
- We shall provide the respondents with the possibility to access their Individual Report (as defined below).
- We shall provide You with an Institutional Report as defined below. The Institutional Report shall be based on the responses of the individual respondents that have participated in Balencio and to the extent that such respondents have not required Balencio to erase their Personal Data (as defined below) prior to the preparation of aforesaid report.
- We shall provide the required technical support to both the individual respondents and You to facilitate access to Balencio and/or the platform.
- Under no circumstances shall Balencio (be required to) communicate to You (or any other third party, including your Affiliates) the answers to Balencio and/or the Individual Report (as defined below) linked to a specific individual respondent unless the individual respondent has provided Us with its prior, explicit and voluntary consent.
- For the purpose of this Agreement an Affiliate of an entity shall mean an individual that controls or an entity that controls, is controlled by or is under common control with, the first entity and ‘control’ shall mean the ability to direct the policies or operations of an entity, whether by contract, ownership or equity interests or otherwise.
As part of the Services, we may provide You with:
- a report (pdf. format) based on anonymized and aggregated data (“Gold/Silver Institutional Report);
- Data analytics tool allowing you to process data and information in a dynamic way;
For the purpose of this Agreement the above outlined reporting options will hereafter be referred to as the “Institutional Report”.
- You recognize and accept that Balencio can adjust the presentation of the consolidated data with the purposes to safeguard the anonymity of the individual respondents. Based upon industry standards, Balencio shall therefore automatically block (regardless of the type of reporting included in the Services (i.e., option a., b., or c., above)) any data that is composed of input of less than 10 (ten) individual respondents.
- The information contained in the Institutional Report is based on the data provided by the individual respondents. Therefore, the information contained in the Institutional Report is provided “as is”, with no guarantee of completeness or accuracy.
- In no event shall Balencio be held liable for any decision made or action taken by You or any other third party (including Affiliates and professional advisors) in reliance on the information contained in this reporting. You shall, to the fullest extent permitted by applicable law, indemnify Balencio for any resulting liabilities, losses, damages, costs and
- expenses arising out of the third party’s use of or reliance on the reports.
- Unless otherwise provided in the applicable Contract, our Services include a personal and anonymized report for the individual respondent outlining the potential risk areas, a limited number of recommendations as well as a clear communication on the various individual support channels (“Individual Report”).
- The information contained in the “Individual Report” is based on the information provided by the Individual Respondent. Therefore, Balencio is not responsible towards You and/or the individual respondent for the accurateness or the completeness of the Individual Report.
- The purpose of the Individual Report is merely to support the individual respondent with a self-assessment of his personal stress factors and related burnout / chronic stress exposure and to enable him/her to autonomously decide whether individual support and guidance is recommended.
- The Individual Report is not intended nor can it be understood as a (medical) diagnosis of burnout and therefore does not replace the opinion of a certified professional (e.g., psychotherapist, doctor/physician).
- Balencio is the sole owner of all rights and properties related to the BALENCIO (“BALENCIOMaterial”). This includes, but is not limited to:
- Individual report;
- Institutional report;
- Underlying algorithms;
- Methodology; etc.
- Any use of Balencio’s intellectual property (including the BALENCIO Material) is, prima facie, prohibited, unless prior approval (in writing) has been obtained or if otherwise provided for in this Agreement.
- You explicitly recognize and accept that You have no rights to copy, reproduce, distribute, translate or make derivative works of the BALENCIO Material unless prior written approval is obtained by Us.
- Any data collected within the context of performing the Services under current Agreement shall be the property of Balencio and you recognize and acknowledge that We are authorized to subsequently use the data so collected for purposes of (without limitation) providing industry benchmarks or within the context of scientific research.
Data Protection & Privacy
- Any information that can be linked to specific individuals (“Personal Data”) shall be processed only for the purpose of providing the Services and in accordance with applicable regulations including (without limitation) the Belgian Data Protection Act (‘Wet van 8 december 1992 tot bescherming van persoonlijke levenssfeer ten opzichte van de verwerking van persoonsgegevens’/’ Loi du 8 décembre 1992 relative à la protection de la vie privée à l’égard des traitements de données à caractère personnel’). In case we have subcontracted part of the Services, we shall require that any other service provider that processes Personal Data shall adhere to such requirements.
- Balencio shall duly inform the individual Respondents of all the individual respondent’s rights and obligations under the applicable law relating to privacy and data protection, including (but not limited to) the Belgian Data Protection Act.
- You hereby explicitly warrant that, for the purpose of performing the Services (as detailed in the applicable Contract) that you have the authority to provide the Personal Data to Us and that the Personal Data so provided has been processed in accordance with applicable law, including (without limitation) the Belgian Data Protection Act.
- In addition, the results of Balencio, may be stored by us on an aggregated basis to enable Balencio to compute industry benchmarks. For the purpose of providing industry benchmarks, Balencio shall aggregate the data in such a way so that, in accordance with applicable law and regulations including (without limitation) the Belgian Data Protection Act, the data collected can no longer be regarded as Personal Data. We shall equally ensure your anonymity with respect to the data provided within the context of industry benchmarks.
- Any information obtained by Us or You in execution of this Agreement and related Contract shall be regarded as confidential.
- Neither You (or your Affiliates, employees, agents or third party service providers) or Us shall disclose the contents of this Agreement or any information provided by the other that ought reasonably to be treated as confidential and/or proprietary.
- In the case of Balencio, the following information is notably considered confidential and proprietary:
- The methodology used in Balencio (and as disclosed to You in our commercial presentation);
- The content of Balencio;
- The Institutional Report;
- The Individual Report;
- The service offering of Balencio in relation to BALENCIO.
- The information disclosed within the context of this Agreement and related Contract can only be shared with relevant stakeholders on a “definite need to know” basis and provided that such persons are bound to respect the confidential nature of the information. You further understand that the Confidential Information shall not be made available to any third party without Our prior written consent.
- Either of us may however disclose above mentioned information to the extent that:
- The information is or has become public other than through the non-respect of this Agreement;
- The information is disclosed to the recipient by a third party who has not obtained directly or indirectly the information from the disclosing party and owes no obligation of confidentiality to the disclosing party;
- The information must be disclosed under applicable law or legal process or it is necessary in case the recipient acts on its own behalf in professional, criminal or civil proceedings to which such information or material may be relevant. In such case however, the recipient shall provide the possibility to the disclosing party to reasonably oppose and/or limit the information that is disclosed in such context.
- Both parties agree to the fact that electronic media can be used to correspond and transfer information and that such use, by itself, cannot constitute a breach of the confidentiality obligations under this Agreement.
- You shall pay our fees in connection with the Services and as detailed in the applicable Contract. Our fees are exclusive of taxes or similar charges, as well as customs, duties or tariffs imposed in respect of the Services, all of which you shall pay (other than taxes imposed on our profit). Unless otherwise provided in the applicable Contract, payment is due within 30 (thirty) days following the date of our invoice.
- In case of late payment, a late payment interest rate shall automatically (i.e., no formal notice to pay is required) be applied equal to 8,5 % per annum as from the expiry date and will be increased with a lump sum indemnification equal to 10% of the invoiced amount with a minimum of 50 EUR to cover administrative costs.
- In case of no payment or late payment, Balencio has the right to suspend the Services until the invoiced amount, late payment interest and indemnification is received.
- In case we are unable to perform the Services as a consequence of events beyond our control (including Your acts or omissions) we may charge you with additional professional fees. This equally applies in case additional work or modifications are requested by You.
Term and limitation
- This Agreement shall be valid for an initial period as defined in the applicable Contract.
- In addition, the Agreement may be terminated:
- In case one of the parties fails to respect its obligations under the current Agreement. Such termination shall become effective 30 (thirty) days following the date on which the formal notice to terminate the Agreement has been sent, via registered mail with a form for acknowledgement of receipt, to the other party.
- When You do not fulfill your payment obligations or when You are (or that there are signs that You will be) in an incapacity to fulfill your payment obligations under the current Agreement e.g., following bankruptcy, or entering a liquidation procedure.
- In case of change of control where either You or Us demonstrates that such change of control will considerably impact the ability of one of the parties to execute, to their satisfaction, the obligations under the current Agreement.
- Following the termination of this Agreement both parties shall not longer be obliged to respect the terms and conditions contained therein with the exception of:
- The right of Balencio to claim any outstanding amount due, apply the corresponding interest rate and lump sum indemnity (see section 37) or any other claim that arose prior to the termination of the contract but in connection thereto or the related Services.
- The provisions relating to confidentiality (see section 30), with a maximum of 5 years following the (valid) termination of this Agreement.
- Notification under the current Agreement should be done via registered mail with a form for acknowledgement of receipt. The termination shall become effective based upon duly notified will of any of the parties to terminate the Agreement without requiring a judgment of the competent Court to that effect.
- All notifications in writing should be sent to the statutory address of the party concerned. In case of transfer of seat, the party concerned shall duly notify the other party of this change.
- We shall not be liable to You for any loss of profit nor any other similar indirect damages (e.g., loss of time, loss of opportunity, reputational damage etc.) about claims arising out of this Agreement or otherwise relating to the Services regardless of whether such loss or damage was contemplated.
- We are not liable to You for any damages resulting from a contractual or non-contractual liability for damages in excess of the fees invoiced for the Services that directly caused the loss relative to claims arising out of this Agreement. In case the Agreement covers a period of more than one year, our liability shall be limited to the fees invoiced in the year prior to the year in which the incident that gave rise to our liability and that caused the loss or damage.
Governing Law and dispute resolution
- This Agreement and any non-contractual matters or obligations arising out of this Agreement or the related Services are governed by, and drafted in accordance with, the laws of Belgium.
- Unless expressly agreed otherwise in writing, any dispute relating to this Agreement or the Services shall be submitted to the exclusive jurisdiction of the Commercial Court of the Walloon Brabant region (‘Brabant Wallon’/Waals Brabant’).
- Before submitting a case before the competent Court, the parties agree to participate to at least one mediation meeting that should be organized within 20 (twenty) days following such request from any of the parties. The mediation procedure should not take longer than 20 (twenty) days following its initiation. In case parties have not resolved their issues within aforesaid timeframe, they are free to submit the case before the competent Court.
- This Agreement constitutes the entire Agreement between us as to the Services and supersedes all other prior Agreements understandings and representations with respect thereto except for previously concluded (more restrictive) confidentiality Agreements previously concluded.
- This Agreement or any Contract falling under the current Agreement cannot be modified unless both parties agree thereto in writing.
- Both parties represent that the party signing this Agreement and related Contract on its behalf, or (as the case may be) on behalf of its Affiliates or other for whom the Services are provided, is expressly authorized to execute them and to bind each of us and them to their terms. You represent that your Affiliates and any other party for whom the Services are performed shall be bound by the terms of this Agreement.
- If any provision of this Agreement (in whole or part) is found (by the competent Court) to be illegal, invalid or otherwise unenforceable, the other provisions shall remain in force and effect. In such case, parties agree that they will replace the illegal, invalid or unenforceable provision with a valid and enforceable provision (nearest enforceable equivalent) considering the object and purpose of the current Agreement.