AGICAP GENERAL TERMS OF SERVICE
Version in force in 09/07/2025
These general terms are applicable to our clients registered in the United Kingdom.
BY USING THE SERVICES OR SOFTWARE (AS DEFINED BELOW) PLACING AN ORDER FOR SERVICES VIA OUR WEBSITE (HTTPS://AGICAP.COM/) OR OTHERWISE REQUESTING SERVICES OR USE OF THE SOFTWARE YOU, AS OR ON BEHALF OF THE CLIENT, CONFIRM THAT YOU HAVE READ AND UNCONDITIONALLY ACCEPT THESE GENERAL TERMS OF SERVICE WHICH SHALL APPLY TO USE OF THE SERVICES AND SOFTWARE.
1. DEFINITIONS
For the purposes of these general terms of service, the following words shall have the definitions provided below, while other terms may be defined elsewhere in this document and/or its annexes.
“Administrator” shall mean any User to which the Client grants rights relating to access, management, creation, modification, and deletion of other Users’ rights.
“Agreement” shall mean :
In the event of direct online subscription: the Order Confirmation for the Services subscribed based on the Quotation and sent by the Company to the Client following the approval of the Order as well as the TOS.
In the event of subscription by electronic signature: the signed Quotation as well as the TOS.
“Annex(es)” shall mean one or more annexes of these TOS.
"Beta Service(s)" shall mean any service identified by Agicap, by whatever means, as a beta service, pilot service, limited release, preview release or similar description, which is still under development, has not been fully tested and may contain bugs or errors, may not perform as intended or indicated, and may be substantially modified before being made more widely available or withdrawn, at the Company's sole discretion.
“Client” shall mean any legal entity or private individual which has accepted these TOS, qualifying as a merchant and acting in their professional capacity.
“Client Account” shall mean the Client’s user space, accessible on the Site through the Login Information, and from which the Client and its Users may access the Services.
“Client Data” shall mean any and all proprietary data of the Client or for which the Client has been granted usage rights, whether such data is protectible or not, and which may be communicated to the Company by or on behalf of the Client for the purpose of performing the Services including, without limitation, such information relating to User Accounts, information supplied by or on behalf of the Client through the Client Interface and any and all other data supplied by or on behalf of the Client to Company through the Services, meaning, notably, any and all accounting and financial information and data from payment accounts.
“Company” shall mean Agicap, a limited liability company with registered offices at St Botolph Building, 138 Houndsditch, London EC3A 7AR, registered under company number 13959596.
“Client Interface” shall mean the Internet page from which a User may access their User Account. The Client may have as many Client Interfaces as provided for in the Order.
“General Terms of Service” or “TOS” shall mean the provisions hereof, which detail the rights and obligations of the Company, the Client, and of its Users.
“Intellectual Property” shall mean the copyright and rights in the trademark, the design patents, and/or any other intellectual property, such as notably photographs, images, drawings, illustrations, texts charts, video, techniques, processes, know-how, sound, logos, names, corporate names, screen savers, wallpaper, trade name, trade dress, models, data, Software, any other software whether in object code and source code, icons, visual and display arrangements, color codes, graphs, etc., all of which are the property of the Company or its licensors.
“Login Information” shall mean the confidential login and password allowing an Administrator to access the Client Account, and a User to access their User Account.
“License” shall mean the license granted by the Company to the Client to access and use the Software in accordance with the terms and conditions of Section 3 of these TOS.
“Major Add-On” shall mean an independent and/or new Service added to the one or more Services already subscribed by the Client, and offering additional or complementary functionalities of a substantial nature, including the adding of a new Client Interfaces.
“Minor Add-On” shall mean an independent and/or new Service added to the one or more Services already subscribed by the Client. A Minor Add-On may consist notably in the modification of the methods of payment. The subscription to one or more Minor Add-Ons may result in the change of the Services initially subscribed by the Client.
“Order” shall mean any subscription to the Services on the Site through the User Account in accordance with the terms of Section 5 of these TOS.
“Parties” shall mean the Company and the Client or the Prospective Client.
“Prospective Client” shall mean any legal entity or private individual acting as a merchant in a professional capacity who is interested in the Services and has not yet subscribed to the same with the Company.
“Quotation” shall mean the document or the pricing offered by the Company to the Client, on screen, notably during a first demonstration session, or attached to an email, and describing the Services to be subscribed, the quantity, the type, unit price and the total price, the terms if payment, as well as the special terms which may apply to certain Software.
“Section” shall mean a section of these TOS.
“Service” shall mean the grant of access to the Software by the Company to the Client, and/or the Support, in accordance with the scope defined in the Order.
“Site” shall mean the website accessible at https://app.agicap.com/, from which the Company grants access to the Services, and which includes the Company’s Intellectual Property.
“Software” shall mean collectively all software made available by the Company in accordance with these TOS, and individually, the cash management software, the supplier management software, and the cash collection software , all available in SaaS mode, as detailed in the Agreement. The Software include the Company’s Intellectual Property.
“Support” shall mean the services comprising technical assistance, initial training, implementation and customization, as well as other services described in Section 3 of these TOS, all of which are related to the Software.
“User” shall mean any natural person authorised by the Client to access and use the Services.
“User Account” shall mean access to the Client Account granted by the Client to a User through their Login Information permitting use of the Services.
2. PURPOSE, SCOPE AND AFFILIATES
These TOS are the terms and conditions under which: (i) the Company provides the Services to the Client; and (ii) the Client and the Users may use the Services, in accordance with the Quotation. The terms relating to Services (otherwise known as modules and/or features) not subscribed to by the Client under the terms of the Order do not apply by their nature (for example, all or part of certain Appendices may not be applicable).
These TOS apply to any Order for Services made with the Company, other than through a partnership agreement, subject to the special terms and exceptions provided in the Quotation.
The terms of the Agreement prevail over any contradicting clause that may be found in the documents or correspondence of the Client, including notably the Client’s own general terms and conditions of purchase and other stipulations on the Client’s purchasing or ordering documents.
These TOS replace and supersede any other prior or concurrent agreement existing between the Company and the Client in connection with the Order and the Services in general.
3. LICENSE AND SERVICES
3.1 Scope of the License of the Software
3.1.1 Granted rights
Subject to acceptance by Company of an Order by the Client, the Company grants to the Client, under and in accordance with these TOS, the non-exclusive, non-transferrable, worldwide, right to access and use the Services, for the exclusive professional and internal needs of the Client, for the term provided in the Agreement, within the scope and subject to the limitations of the Services subscribed by the Client, as per the terms and conditions defined hereafter.
The License granted hereunder includes the right for the Client to allow the Users to access and use the Services in accordance with these TOS.
3.1.2 Price
The License is granted to the Client in consideration for the Price, the amount and payment terms of which are detailed in the Agreement, in accordance with the Services chosen by the Client.
3.1.3 Restrictions
Except as expressly authorised under these TOS, the Client undertakes not to, and shall ensure that Users do not:
access and/or use the Services for any purposes other than those strictly provided in these TOS, such as to : (i) provide services to third parties (for instance, as a service bureau or shared services centre); (ii) circumvent or deactivate any functionality or security measure or technology of the Software; or (iii) transmit viruses, worms, trojan horses, or any other malware likely to adversely affect the Software, the Company, or any user of the Services;
modify, adapt, alter, translate, or create any derivative work based on the Software or any of its components;
sub-license, exhibit, sell, allow time-sharing, rent, loan, distribute in any way, or otherwise transfer the Software and/or any derivative work thereof to a third party;
reverse engineer, decompile, disassemble, or attempt to obtain the source code of the Software, except as permitted by law;
allow any person other than the Users to access the Software, the Client acknowledging in this respect that it shall be responsible for supervising and controlling the means of accessing the Software;
interfere with or adversely affect the performance of the Software (by running, for instance, penetration tests);
correct errors, defects, and other anomalies found in the Software;
adversely affect the legitimate interests of the Company and/or its licensors, and notably their Intellectual Property rights and other rights related or attached to the Software;
remove or modify the trademark, tradename, logo, or any other proprietary or distinctive sign of the Company as contained or included in the Software.
3.1.4 Improvements and evolutions– Beta Services
The Software included the Services is made available “AS IS” in its current version at the time of entry into force of these TOS. The Company may, on a separate basis, implement improvements and add new functionality at any time, and at its discretion. Certain functionality may be available only with certain specific versions or editions of the Software, subject to the payment of the applicable additional fees and/or special or additional terms and conditions of use.
In order to improve the Services, the Company may offer Beta Services to the Client, who may freely accept or refuse. The Company reserves the right to modify or discontinue, temporarily or permanently, the Beta Services, in whole or in part, with or without notice, at any time. The Company has no obligation to provide support for the Beta Services.
The Beta Services are provided "as is" without warranty of any kind. The Company disclaims all warranties and conditions regarding the Beta Services, including all implied warranties and conditions of accuracy, merchantability, fitness for a particular purpose and non-infringement.
In no event shall the Company be liable to the Client or any third party for damages of any kind, whether direct or indirect, arising out of the use or inability to use the Beta Services by the Client, to the fullest extent permitted by law. Use of the Beta Services by the Client is at the Client’s sole risk and discretion, and the Client must ensure that the Beta Services meet its needs.
3.2 Terms of Support
For the term of the Licenses, the Company undertakes to use commercially reasonable efforts in providing the following Support services:
3.2.1 Initial training
The Company provides to the Client initial training which is included in the price of the Services, to allow the Client and the Users to properly use the Services as of the validation of the Order.
3.2.2 Implementation and customization
The Company shall proceed with the implementation and the customization of the Services for the Client.
Any specific request or requirement from the Client which does not fall within the scope of the Services initially subscribed to and which requires a significant amount of time may be the subject of a separate quotation (such as, for example, the implementation of an SFTP server, importing a high volume of historical data, the overhaul of the category tree, the creation of KPIs).
3.2.3 Technical assistance
Support services include assistance to the Client for the proper use of the Services. Technical assistance services are available through online chat directly on the Site, from Monday to Friday (except public holidays), at the following times: 9am – 12.30pm and 2pm – 6pm (CET).
4. ORDER AND MODIFICATIONS
4.1 Initial Order
For any Order to be valid, the Client must accept the Quotation, such acceptance occurring (a) through the online subscription to the Services directly by the Client, including as the case may be, during the first demonstration session, or (b) by electronically signing the Quotation sent by email.
By accepting or signing a Quotation, the Client confirms its acceptance of these TOS.
4.1.1 Demonstration of the Services
A Prospective Client may, prior to any Order, receive a demonstration of the Services:
After requesting a demonstration on the Company website at www.agicap.com by filling in a contact form to that end, following which the Company may contact the Prospective Client by telephone to present the Services and schedule a demonstration session;
After creating a Client Account on the Site, the Prospective Client may be granted free and temporary access to the Services with a demonstration session by the Company’s sales teams.
Creating a Client Account for the purpose of a demonstration session indicates and entails the unconditional acceptance by the Prospective Client of these TOS.
Access to the Client Account is deleted if the Prospective Client does not enter into an Order to subscribe for paid Services following a demonstration, and such deletion shall not give rise any claims or right to remedy for the Prospective Client.
4.1.2 Initial offer of Services
Once a Prospective Client has confirmed their interest in the Services, including as the case may be following a demonstration session, the Prospective Client may review a Quotation detailing the Services contemplated by the Prospective Client as well as any and all special terms.
The Prospective Client chooses among the Services made available by the Company on the Client Account.
The Prospective Client then chooses the invoicing and payment methods in accordance with the provisions of Section 5.2, unless provided otherwise or subject to special terms agreed between the Parties.
4.1.3 Finalization of the Order and formation of the Agreement
The Agreement is concluded and the Prospective Client becomes a Client once the choices have been made and the Quotation has been accepted by either directly subscribing to the Services online or signing the Quotation electronically, which shall in both cases entail the unconditional acceptance of the terms of the Order and these TOS by the Client.
In the event the Order is approved online, the Company sends the Order Confirmation separately by email to the Client.
The date of entry into force of the Agreement is: (i) either the date of receipt of the Order Confirmation; (ii) the date of (electronic) signature of the Quotation by the Client; or (iii) any other date as indicated in the electronically signed Quotation. From that date, the Company will contact the Client to schedule the dates for the implementation of the onboarding Services described in Sections 3.2.1 and 3.2.2 of these TOS.
4.2 Modification of initial or then current Order
Unless agreed otherwise in writing, additional Orders are requests to vary or replace the existing Agreement. Such Orders, once accepted by Company, shall form part of the Agreement. Accordingly, the Client may submit requests to:
modify the existing Agreement by adding one or more Minor Add-Ons or Major Add-Ons (such requests shall be effective upon acceptance by Company);
remove one or more Minor Add-Ons or Major Add-Ons (such requests shall be effective at the time of renewal); or
modify the Agreement by replacing it entirely (such requests shall be effective upon acceptance by Company).
The means of acceptance and validation of the new Order are the same as for the initial Order, and shall be effected through the Client Account or otherwise in writing, as the case may be, following a Quotation sent by the Company.
In the event of such modification or replacement, the Parties shall agree in writing and/or through the Client Account on any changes to the terms of the Agreement relating to the subscription periods of the different Services and Add-Ons, where applicable.
5. FINANCIAL TERMS
5.1 Price
The applicable price is the one in force at the time of the Order and it may vary depending on the Services chosen by the Client (the “Price(s)”).
The applicable Prices are set in the Agreement. The Prices are expressed in Great Britain Pound, exclusive of VAT.
The Company reserves the right to revise the Contract price, annually or upon renewal of the Contract at the Company's discretion, in accordance with the following formula:
P1 = P0*(1+y)^n
Where:
P1 is the new annual price,
P0 is the previous annual price (excluding exceptional discounts),
y is set at 5%,
n is the number of years since the last price increase.
5.2 Terms and conditions of payment
Unless agreed otherwise in the Quotation, the Price is due in full at the time of the Order, payable by BACS direct debit through the online payment service provider “Stripe”.
By proceeding with the payment of the Price via BACS direct debit, the Client represents and acknowledges that it has read, understood, and approved the general terms and conditions of service of “Stripe”, accessible at https://stripe.com/fr/ssa.
5.3 Late payment
In the event of default or late payment and where payment in full occurs past the time period provided in Section 5.2, the Client shall pay interest on the overdue amount at the rate of 8% per annum above the Bank of England's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, at which point the Client shall pay the interest together with the overdue amount, and a fee of £50 to cover administrative expenses.
In no event, may the Client delay or modify the payment terms for any cause whatsoever, or ask for a Price reduction, whether based on the quality, or non-conformity of the Services, or otherwise. Late payment shall cause the Price to be become due in full immediately (in addition to interest as detailed above), without prejudice to any other action or remedy the Company may seek against the Client with that respect, or the Company’s right to terminate the Agreement in accordance with the provisions of Section 12.2.1. of these TOS.
6. OWNERSHIP AND TITLE
6.1 Software and Intellectual Property
The Client agrees that the Company and its licensors shall remain the exclusive owners of the Site and the Software and any Intellectual Property which is made accessible and/or made available to the Client under these TOS, as well as any items that belong to the Company and which are included in the Software, or related to the Company’s business.
Any reproduction, display, broadcast, public performance, use, adaptation, modification, incorporation, translation, commercial distribution, in all or in part of any process and on any media whatsoever (hardcopy, digital, etc.) of the Software, the Site, or the Services, or of any element of the Intellectual Property is strictly forbidden, except with the prior written authorization of the Company.
The Client shall also refrain from registering or applying for registration of distinctive signs of any nature whatsoever likely to adversely affect the Intellectual Property rights of the Company or of any other rights granted to the Company by third parties.
The Client also commits to immediately inform the Company of any violation or infringement of its Intellectual Property rights, and to provide to the Company any information required for the protection, maintenance, enforcement, and defense of the Company’s Intellectual Property.
In addition, the Client shall refrain from selling or broadcasting, in any manner whatsoever, products infringing the Intellectual Property rights of the Company.
The TOS do not constitute in any way a sale or assignment of all or part of the Software. The right for the Client to access and use the Software shall not be construed as granting rights other than those expressly granted in terms and conditions described in the Agreement.
6.2 Client Data
The Client shall remain the sole owner of the intellectual property or usage rights in the Client Data, including the files, attachments, texts, images, personal information and other types of content, made available to the Company by the Client in connection with the use of the Services. The Client Data may or may not be personal data.
The TOS do not grant any proprietary right, nor do they assign rights in all or part of the Client Data to the Company. The Company shall refrain from misappropriating and commercially using the Client Data, in all or in part, directly or for the benefit of third parties, and from claiming any property right of any kind whatsoever therein which has the consequence of limiting the free use of the Client Data by the Client.
Notwithstanding the foregoing, and to the extent necessary, the Client grants to the Company a non-exclusive, non-transferrable and non-sublicensable (except as validly requested to and authorised by the Client in connection with the Services) right to use the Client Data for the purpose of making the Software available to the Client, providing the Support services, conducting analyses for the improvement of the Services, performing certain specific professional services, or offering third party services that might interest the Client or complement the Services. This license is valid worldwide and for the term of the copyright protection of the rights concerned.
This license includes the right to use and reproduce all or part of the Client Data for the sole purposes of letting the Company provide the Software and perform the Support services hereunder.
6.3 Right to use feedback
The Client grants the Company a right to use feedback, suggestions, comments and proposals for improvement or correction, as and when they are communicated, for the entire world and for the duration of any applicable copyright protection, for any purpose whatsoever, free of charge, irrevocably and subject to sub-licensing.
7. OBLIGATIONS AND WARRANTIES OF THE COMPANY
7.1 Conformity
The Company warrants that the performance of the Services shall conform to the obligations set forth in the Agreement. The Company shall in addition make commercially reasonable efforts to provide the Client with reliable and fast access to the Services.
To the extent permitted by law, and notwithstanding the foregoing, the Company does not represent nor provide any warranty, whether implied or express, that the Software is free from defects or error, but undertakes to make its best efforts to remedy any such defects or errors with the diligence of a professional in the sector.
The Software is a standardised SaaS solution, made available to the Client without adaptation to any particular specifications; the Company therefore does not guarantee that it can meet all the Client's specific needs.
7.2 Intellectual Property Warranty
The Company warrants that all elements of the Solution do not infringe the intellectual property rights of third parties. The Company shall indemnify the Client against any consequences of any kind (including costs of proceedings, lawyers' fees, damages, indemnities, etc.) in the event that the Client's liability is sought by a third party in the context of an action for infringement of intellectual property rights.
In the event of a claim as indicated above, the Company will, at its own discretion and at its own expense:
either modify all or part of the disputed element in order to avoid infringement,
or obtain authorisation for the Client to continue to use it or provide an iso-functional replacement Solution.
If none of these solutions can be envisaged, the Company will reimburse the Client all sums paid in advance and not used, without prejudice to any damages that the Client may be entitled to claim.
These provisions set the limit of the Company's liability in the event of infringement proceedings.
7.3 Nature of the obligations
In the event of a doubt in the interpretation of a clause, or absent an indication as to how to interpret the extent and scope of the Company’s obligations, the Client agrees that, unless agreed otherwise, such obligations shall only be subject to commercially reasonable efforts.
7.4 Third Party Services
The Software may interact with the services of third-party service providers (the “Third-Party Services”), such as, for example, the Client's banks and ERP software and/or the Swan payment service provider, depending on the Services subscribed to by the Client. It is specified that the said third-party service providers supplying the Third-Party Services do not act as subcontractors of the Company but as direct service providers to the Client.
The use of these Third-Party Services is subject to, and governed by, the general terms of use of the third-party providers which apply to such services, and to which the Client must subscribe directly, or as the case may be, by indicating acceptance through the Services. By agreeing to the interaction or integration of the Services with, and the use of, the Third-Party Services, the Client expressly authorises the Company to access such Third-Party Services on behalf of the Client, and to transfer, download, and process the information and data accessible through those third party services for the sole purpose of the providing the Services.
In any event, the Client shall remain solely responsible for using such third-party services and the third-party providers concerned shall be solely responsible for the performance of the services in compliance with their general terms, the maintenance or the removal of their services, the pricing applied, or their interoperability with the Services.
The Company shall not be held responsible in the event of termination, unavailability, delays, interruption, dysfunction, or inaccuracy of information and/or data, or breach or infringement by the third-party provider including infringement of their obligations of confidentiality or obligations related to banking secrecy, or for any acts or omissions not related to the Services provided by the Company, or for incorrect information and data which is found in the Services as a result of the breach, act, omission, or negligence of the third-party providers and/or the Client to the extent that such third party providers are the only intended recipients of the Client’s consent, and the only parties responsible for the verification of such information and data, and their transmission.
The Company’s sole liability and responsibility with respect to Third-Party Services and/or any information and data which belong to the Client and that the Company receives from Third-Party Services, is to store and secure such data in connection with the use of the Services by the Client, to the extent expressly required by the Agreement.
The Price of the Solution does not include any charges invoiced by third-party service providers for the supply of third-party products or services interacting with the Services.
7.5 Nature of the Services provided
The Services offered by the Company, including in particular simulations, suggestions, illustrations and conclusions regarding the development and/or state of the Client's cash position, are provided by the Company for information purposes only. They may not be qualified as advice or personalised recommendations of any kind whatsoever and for any purpose whatsoever, particularly with regard to financial investment, nor may they constitute a guarantee or promise of financial gain or services from third parties, or constitute any commitment whatsoever to be accepted by a financial investment adviser.
Thus, the choice and decision to proceed with any action whatsoever based on the development and/or state of the Client’s cash position, such as financial investments or any payment action, is the sole responsibility of the Customer. In particular, Clients are invited to consult a financial market professional for advice on their choice of financial investments, and to check the applicable contractual terms and conditions before taking any payment action.
8. OBLIGATIONS AND WARRANTIES OF THE CLIENT
8.1 Obligations of the Client
The Client undertakes to ensure that the Users comply with the terms and conditions governing the use of the Services as provided herein, the terms of the TOS and applicable statutory provisions.
The Client also undertakes to control the Users’ access to the Software and to make sure that they use the same in compliance with these TOS. The Client warrants that the Users will comply with the TOS.
The Client undertakes not to prevent or hinder the proper performance of the Company’s obligations under these TOS.
The Client undertakes to appoint a competent member of its staff who shall remain the Company’s dedicated contact person for the Term of the Agreement for any questions related to the Services.
The Client undertakes to ensure that Client Data and any other information or material supplied or obtained by, for, or on behalf of the Client or Users is accurate, complete, and does not misrepresent the Client’s identity, or the Client’s economic, commercial, and financial situation. The Client shall, prior to providing any materials to Company, verify the source, the authenticity, and the accuracy of those materials; such verification it the Client’s exclusive responsibility. Client agrees to indemnify and hold harmless the Company against any adverse consequences of any kind related to the communication or use of the Client Data, and of any information and/or other materials which do not comply with this clause, and waives any and all rights or claims against the Company for any loss or damage suffered by the Client as a result of the Company’s use of such Client Data, information and/or materials for the provision of the Services.
The Client understands and accepts that the Login Information are personal, confidential, and not assignable. They are exclusively reserved for use by the Users who are designated by name. They cannot, in any way whatsoever, be provided to third parties, or recycled, within or outside the Client, by any person other than the named User. The Client must notify the Company of any loss or theft of the Login Information to allow their cancellation or deactivation.
The Client represents that it has accepted the costs and limitations inherent to any Internet connection. The Client is informed of the minimum specification recommended by the Company, and shall be responsible for accessing the Services under appropriate technical conditions—including as to hardware, software, telecommunications—and to ensure that any and all back-up measures are in place, as well as any and all appropriate protection against potential viruses.
In addition, the Client undertakes:
To make sure that the necessary instructions are provided in a timely manner to the Company so as to allow the latter to provide the Services in normal conditions;
To provide or have its partners provide, in the agreed timeframe, any and all works, documents, files, etc. which are necessary for the Company to provide the Services;
To attend all appointments made with the Company, particularly during the training period, and to give at least 48 hours' notice of any cancellation (except in cases of force majeure), failing which the Company reserves the right to invoice any appointment not attended at an hourly rate of €125 excluding VAT;
To use the Services solely in the context and for the purpose of its professional activity, and in any event, not for any purposes not expressly authorised by the TOS;
Not to use or permit any User to use an account assigned to another person;
Not (save to the extent such restriction is prohibited by law) to decompile, analyse, seek to reduce to source code, or reverse engineer the Software or Services;
Not to remove or delete all or part of the Software or its technical environment without the Company’s prior authorization;
Not to upload or download viruses or potentially dangerous files likely to compromise the integrity of the Services.
If the Client fails to fulfil any of the obligations set out in this clause 8.1, in clause 3.1.3 above (Restrictions) and/or in the event of default or late payment of all or part of the Price, the Company reserves the right to suspend performance of all or part of the Services subject to a prior formal notice granting the Client a period of seven (7) calendar days to remedy the breach, the Client expressly accepting that the Company shall not be held liable in any way in this respect and that the Client may not claim any penalty or price reduction.
8.2 Warranties of the Client
The Client understands and acknowledges that is solely responsible for the use it makes,and/or that the Users make, of the Software and represents that it has all necessary legal, administrative, and regulatory rights and authorizations required to use the Services, and that it has paid any and all fees and taxes that may be required.
Notwithstanding any limitation of liability, the Client shall indemnify, defend and hold harmless the Company against all claims by third parties arising from the Company’s use of the Client Data in accordance with the rights granted to it over the Client Data under the terms of article 6.2 of the TOS.
The Client shall thus bear and be liable for any loss, cost, damage, expenses and attorney fees that may result from such third-party claim.
9. LIMITATION OF LIABILITY
Liability for death or injury resulting from a party’s own negligence or that of its employees, agents or sub-contractors and liability in respect of any fraudulent misrepresentation shall not be limited notwithstanding any other term of the Agreement.
Except as expressly provided in these TOS, the Company hereby excludes all terms, warranties and undertakings express or implied statutory or otherwise.
Neither Party shall be liable for any loss of revenue (excluding the Price due to Company) profit, data, business, opportunity, goodwill or for any type of special, indirect or consequential loss, nor for the costs of procurement of substitute goods and/or services, or for third party claims (except as set out in Section 7.2 of these TOS), regardless of whether such loss was reasonably foreseeable or the other had been advised of the possibility of incurring the same.
The Company's liability is strictly limited to direct losses and Company shall not be liable for any loss or expenses arising out of or in connection with:
any information, or data provided by the Client, including the Client Data; and/or
any breach of the Agreement, default of Company, or failure to provide the Services in accordance with these TOS or the Agreement resulting from an event outside the Company’s reasonable control.
Subject to the foregoing, the total aggregate liability of the Company, whether in contract, tort (including negligence) or otherwise, under or in connection with the Software, Services, these TOS or any relevant agreement (including the Agreement), shall in no circumstances exceed a sum equal to the Price paid by the Client under the Agreement to the Company in the twelve (12) months immediately preceding the date on which the most recent claim arose.
Any claim for damages by the Client must be issued within twelve (12) months from the occurrence of the event causing the damage. Failure to do so will be deemed a waiver of any claims or rights the Client may have against the Company.
10. CONFIDENTIALITY
Each Party acknowledges and agrees that in the context of this Agreement or for the purposes of the Services, it may come to access certain information and documents regarding the activities, the technology and/or the products and services of the other Party.
Such information and documents, which are confidential, irrespective of their nature and the media (written, oral, magnetic, electronic, digital, etc.) and method of access or communication (collectively, the “Confidential Information”) are of considerable value to the disclosing Party, whose interests would be threatened if their content were to be divulged or disclosed to third parties.
It is expressly agreed that banking information and data is deemed Confidential Information.
Each Party undertakes not to use the Confidential Information in any manner for its own benefit or in or for the benefit or interests of third parties, unless otherwise provided or authorised under these TOS, and to protect the confidentiality of such Confidential Information with the same level of care and diligence as employed for their own Confidential Information. The Parties represent and warrant that their directors, officers, employees, agents, partners and subcontractors shall be bound by these confidentiality obligations.
These obligations of confidentiality do not apply to information which is:
Already legitimately known to/by the other Party prior to the communication of the Confidential Information;
Part of the public domain without any infringement or violation of these TOS by the other Party;
Legitimately received from a third party that is not bound by an obligation of confidentiality;
Publicly available pursuant to the authorization of the other Party;
Was developed independently by the other Party; or
Required to be disclosed by law or pursuant to the order, judgment, ruling or decision of a court or other authority of competent jurisdiction.
Each Party undertakes to comply with the confidentiality obligations of this Section for the Term of the Agreement and for three (3) years following the termination of the Agreement.
11. PERSONAL DATA
Each Party undertakes to comply with the obligations resulting from Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (the “GDPR”) and the UK Data Protection Act and UK GDPR (collectively, the “Applicable Legislation”).
In the context of the performance of the Services, the Company may have to process, on the Client’s behalf, personal data, as such term is defined in the Applicable Legislation.
The provisions governing the processing of personal data made available by the Client to the Company in the context of the performance of the TOS are provided in the Data Protection Agreement attached under Annex 1.
12. TERM, ENTRY INTO FORCE, TERMINATION
12.1 Term and Entry into Force
Each Agreement is concluded for a term of twelve (12) months, or for any longer period as provided in the Order as the case may be (the “Initial Term”).
At the end of the Initial Term, the Agreement will be automatically renewed for successive periods of the same duration, unless terminated by either of the Parties by written notice before the expiry of the current period, by registered letter with acknowledgement of receipt. The applicable notice period is set as follows:
For contracts with a current commitment period of 12 months: 30 days' notice.
For contracts with a current commitment period of more than 12 months and up to 24 months: 60 days' notice.
For contracts with a current commitment period of more than 24 months: 90 days' notice.
The conditions governing the term in the event of a modification of an Order are provided in Section 4.2 of these TOS.
12.2 Termination
12.2.1 Termination for breach
Notwithstanding the foregoing, each Party is entitled to terminate the Agreement at any time in the event the other Party is in material breach of the Agreement and fails to remedy that breach within thirty (30) calendar days following a breach notice sent by registered post with return receipt requested specifically referring to first Party’s intention to make use of this Section. Such termination shall be without prejudice to all rights and remedies accruing up to the date of termination.
12.2.2 Consequences of termination
The Client undertakes to make itself available within fifteen (15) days for a videoconference with its account manager or any other person designated by the Company following notification of termination of this Agreement at its initiative, for any reason whatsoever.
It is the Client’s responsibility during the term of the Agreement, and at the latest before the expiration of the Agreement to download all of its data independently by using the tools made available by the Company for the extraction of its data. Once the Agreement has expired or has been terminated, the Client may ask the Company, within thirty (30) calendar days of the date of termination of the Contract and by registered letter with acknowledgement of receipt, to delete its Client Data.
At the end of the Agreement for any reason whatsoever:
the License shall expire and any and all Client Interfaces (as well as the Login Information) shall be deactivated;
the Client shall cease using the Services, as well as any and all third-party services in conjunction with the Services;
in respect of third party services subscribed to by the Company for or on behalf of the Client for the purpose of, or in connection with, the Services, the Company may freely terminate such third-party services without any right to compensation or remedy for the Client;
in respect of third party services subscribed to by the Client with or without the involvement of the Company, for the purpose of, or in connection with, the Services: (i) the Company may, as the case may be, freely suspend or terminate any service or obligation related to such third party services, in accordance with the applicable general terms of use of the third party providers, without any right for compensation or remedy for the Client; (ii) the Client shall proceed with the effective termination of any such third party services directly with the service provider; and (iii) the Client shall be liable for and shall pay, and/or reimburse, the Company for any costsor other financial consequences resulting from the Client’s failure to terminate such third party services at end of the Agreement;
the Client shall pay to the Company all sums due for Services provided under the Agreement up to the effective date of termination; and
the rights and obligations which are intended, expressly or by their nature, to do so, shall survive the termination or expiry of the Agreement and/or the relevant Orders, including, without limitation, Section 9, Section 10, and Section 11 of these TOS, and shall remain valid and in full force following the termination or expiry of the Agreement and/or the relevant Orders.
Should the Client terminate the Agreement for breach attributable to the Company in accordance with the provisions of Section 12.2.1, the Client may seek reimbursement of any prepaid and unused portion of the Price.
Should the Company terminate the Agreement for breach attributable to the Client in accordance with the provisions of Section 12.2.1, all amounts owed/prepaid by the Client shall become/remain due.
13. GENERAL PROVISIONS
13.1 References
Unless instructed otherwise in writing, the Client authorises the Company to reference and reproduce its corporate, business, and trade names, for marketing and communication purposes on all of its promotional, commercial material and media.
13.2 Force majeure
Each Party reserves the right to suspend the performance of all or part of its obligations without liability or compensation should an event of force majeure prevent the normal performance of the Parties’ obligations.
Neither Party shall be responsible for any breach of its obligations or delayed performance that is due to an event of force majeure. The term “force majeure” shall mean any event which is outside the reasonable control of the affected Party.
It is expressly agreed that the following shall also be considered events of force majeure: fire, flood, earthquake, riots, war, whether affecting the Client, the Company or the Company’s services providers, late performance of the services by the Company’s providers, even if the Services are only partially impacted, and irrespective of the cause.
Notwithstanding the foregoing, the affected Party undertakes to immediately inform the other Party of any such event as well as any the consequences thereof, and to take commercially reasonable actions to limit or mitigate its effects.
Should an event of force majeure occur, the Parties shall use all commercially reasonable efforts to continue the performance of the Agreement. If the event of force majeure lasts for more than sixty (60) calendar days, the Agreement may be terminated at the initiative of either Party, by registered letter with acknowledgement of receipt, without any right to indemnification or compensation for either Party.
13.3 Assignment
The Client may assign, transfer, and otherwise dispose of its rights and obligations under these TOS subject to the Company’s prior written authorization.
The Company may assign the Agreement subject to prior notice to the Client. The following shall be deemed assignments not requiring prior notice to the Client: merger, complete transfer of assets and liabilities by operation of law, change of control, etc.
13.4 Insurance
The Company warrants that it holds an insurance policy with a solvent insurance company and undertakes to remain so for the duration of the Agreement. The Company undertakes to provide a copy of the insurance certificate at the Client's request.
13.5 Non-solicitation
For the term of the Agreement and for two (2) years following the termination or expiration thereof, the Client shall refrain from directly or indirectly soliciting the Company’s directors, officers, employees and providers which the Client has been in contact with or has knowledge of in context of these TOS, for the purposes of hiring them, inciting them to leave their position or terminating their collaboration with the Company for any reason whatsoever.
13.6 Severability
Should any provision of these TOS be found invalid by any court of competent jurisdiction, the remaining provisions of these TOS shall not be affected and shall continue to remain valid and in full force, unless the invalidity concerns a fundamental aspect of the Agreement.
The Parties agree to negotiate in good faith to find a replacement clause that is valid and enforceable, and has the same practical result as the invalid clause.
13.7 Non-Waiver
Unless otherwise provided herein, the fact either Party fails to invoke a right or an obligation under these TOS shall in no event be construed as a waiver of their ability to invoke said right or obligation at a later time.
13.8 Entire agreement
These TOS are drafted in the English language in their original version, which shall prevail over any other version. They contain the entire agreement of the Parties in respect of the Services, subject to any special terms concluded between them, as the case may be.
These TOS replace and supersede any previous provision, commitment, or verbal or written agreement between the Parties on the subject-matter thereof.
13.9 Proof
In the event of a dispute, the Parties agree that exchanges of correspondence via the Services or the chat shall be deemed a valid original writing to serve as evidence between them, except to dispute or challenge the authenticity of such correspondence.
13.10 Modifications
The Company reserves the right to amend these TOS at its discretion. Any such amendments will be communicated to the Client with at least thirty (30) calendar days' prior notice and shall apply to any new Order received from the Client. Notwithstanding such changes, any special terms previously negotiated between the Parties will continue to apply, in full effect, unless such special terms are inherently incompatible with the updated TOS. Subject to the foregoing, any such changes to the TOS shall be effective and shall apply to and vary the Agreement from the date it is next renewed.
13.11 Notifications
Any notification made necessary pursuant to the TOS shall be validly made and deemed served, unless otherwise provided herein, if sent in writing (letter, facsimile, or email) to the addresses mentioned herein, in the Quotation, or at any address made known by the Parties.
13.11 Third Party Rights
A person who is not a party to the Agreement shall not have any rights under or in connection with it, under the Contracts (Rights of Third Parties) Act 1999 or any equivalent legislation.
13.12 Governing law and jurisdiction
The TOS are governed, interpreted, and shall come into effect, in accordance with English law.
The courts of England shall have exclusive jurisdiction over any dispute arising out of these TOS, in connection with the formation, performance, interpretation, or termination of the Agreement.
