Agicap Terms of Service

Last updated on May 5th, 2023

ARTICLE 1. OBJECT

1.1. Unless otherwise stipulated, these Terms of Service will automatically apply to the performance of all services (hereinafter the “Services”) by AGICAP (hereinafter “AGICAP”), the supplier of the AGICAP software solution, as described below, to the party placing the order (hereinafter the “Client”), which represents that it has fully reviewed and accepts them, and therefore waives any ability to invoke contradictory documentation, namely its own terms of purchase. Consequently, the fact of placing an order entails the Client’s full and unreserved approval and acceptance of these Terms of Service, to the exclusion of any other Client or AGICAP documents, such as brochures, catalogues, etc., which may be provided for reference purposes only. No document other than these Terms of Service shall engender obligations for the parties or a special dispensation herefrom, unless laid down in writing and signed by the parties or mentioned in a quote accepted in accordance with Article 3.

1.2. The Client accepts that AGICAP may apply reasonable changes to these Terms of Service. AGICAP will notify the Client of these changes. The Client will have a period of one month from the date of notification to raise reservations. After this period, the Client will be presumed to accept these changes.

ARTICLE 2. DEFINITIONS

For the purpose of interpreting these Terms of Service, the Client and AGICAP agree that the terms listed below will be understood as having the following meanings.

• Systems Administrator: The person within the Client’s organization who has been designated as AGICAP’s dedicated point of contact.

• Application: The AGICAP software solution, including any and all updates and documentation, which is developed and marketed by AGICAP with a view to granting a right of use to the Client.

• Cloud: The platform hosted on remove computer servers, from which the Application is accessible in SaaS (software as a service) mode.

• Company Interface: The space where the Client accesses the Application’s features, with the specification that the Client may have as many Company Interfaces as it has establishments for which it wants to sign up for a subscription. An “establishment” is understood as a legally independent entity within the Client’s organization, that has its own business registration number and bank account.

• Package: The service package selected by the Client from the various packages offered by AGICAP for access to the

• Application Services: The services offered by AGICAP, namely including:

  • Access to the Application in SaaS mode under a license
  • Technical support for use of the Application
  • Any other services which AGICAP may offer to the Client.

• Parties: Collectively, AGICAP, a French SAS (simplified joint stock company) with capital of €22,405 and head offices located at 57 rue de Saint Cyr, 69009 Lyon, France, registered with the Lyon Trade & Companies Register (RCS) under number 823 248 703, and the Client.

• User: Any natural person to whom AGICAP grants a right to use the Application, i.e. either a person in the Client’s organization or a client of the Client.

All references made in the singular shall include the plural and vice versa.

ARTICLE 3. CONTRACTUALIZATION

The Client is responsible for selecting the Package it wants to order, via the Application, as per the following terms and conditions.

3.1. Registration : In the Application To access AGICAP’s Service packages, the Client is asked to register directly via the website www.agicap.com/en, by clicking on “Try for free”. To register, the Client must be a professional with a registered business. The Client will be asked to provide an email address, a password, a company name and a telephone number. Once that registration is approved, the Client will have a 24 hour Application trial period (hereinafter the “Trial Period”), after which the Client must order a Package if it wants to continue using the Application. The Trial Period will apply to each Company Interface created by the Client in the Application.

3.2. Navigation in the Application : Once registration is complete, the Client can review the different packages sold by AGICAP. During the Trial Period, the Client is free to browse the different pages of the Application, without making any commitment to place an order. Once an order has been placed, as stipulated in Article 3.3, the Client will be able to navigate the Application for the duration of the subscription.

3.3.Order placement : If the Client wants to place an order, it must select the Package it wants to order and then click the “Subscribe to package” box. Package subscriptions only apply to a single Company Interface. For each additional Company Interface that the Client wants to create, it will need to subscribe to another Package. To place an order, the Client completes a form, providing accurate billing information (company name and billing address). The Client alone is responsible for the accuracy of the information provided. An order that contains incomplete or incorrect information could lead to mistakes or delays which shall not, under any circumstances, be attributable to AGICAP’s fault. A purchase order will then appear on the screen, stating the nature of the Package selected by the Client and the current price, both exclusive and inclusive of VAT. After reviewing the purchase order, the Client will have the opportunity to check for any errors and edit the order if necessary.

3.4. Final order confirmation : After reviewing the purchase order and confirming or correcting the Client’s information (including the billing address), the Client must tick the box to accept these Terms of Service and then click on “Place order”. That second click will constitute an electronic signature. That signature will have the same value between the Parties as a handwritten signature. The purchase order will be recorded in AGICAP’s computerized registers, which are themselves stored on a reliable, durable medium, and will be considered as proof of the contractual relationship between the Parties. The Client can then make payment for the Package as stipulated in Article 7.

3.5. Order summary: Once the Client has submitted payment via the Application, an order summary will be displayed, namely including the associated transaction number. The sale will only be considered as final once AGICAP has displayed the order summary, which constitutes its acknowledgement of receipt of the order (hereinafter the “Contract”).

3.6. General information :The data recorded by AGICAP shall constitute proof of all transactions, save in the case of proof to the contrary. In any case, AGICAP reserves the right to decline any order or refuse any delivery in the event of an ongoing dispute with the Client or in the event of full or partial non-payment of a previous Client order. In that instance, AGICAP shall not be liable for the consequences thereof. Only the Client may enjoy the benefits of an order, which may not be transferred without AGICAP’s agreement. Any changes requested by the Client shall only be considered if received in writing before the Application is made available to it and/or before any Services have been rendered, with the specification that AGICAP reserves the right to choose whether or not to acquiesce to such a request.

ARTICLE 4. SERVICES

4.1. AGICAP undertakes to take the best possible care in the performance of its Services, in accordance with its industry standards, to which it will devote the necessary resources. AGICAP’s obligations will depend on the duties entrusted to it.

4.2. Provision of the Application:In SaaS mode AGICAP will make the Application available to the Client in the Cloud. The Client will the access Application using its own hardware, with the required configuration and under its own responsibility, in accordance with the instructions communicated by AGICAP. The Client is hereby informed that access to the Application in SaaS mode requires a computer and an Internet connection. Once the Contract has been established as laid down in Article 3, and subject to receipt of the price as stipulated in Article 7, AGICAP will set up the Client’s access rights for use of the Application. The Client will have the number of User accounts indicated for the Package. The Client is responsible for its own access codes for the Application and undertakes to retain sole possession thereof. AGICAP may not, under any circumstances, be held responsible for the consequences of fraudulent use of a Client access code by a third party. The Client is free to upgrade to a higher level Package during the term of the Contract, which can be done directly in the Application. The change in Package will be effective on the date of its subscription in the Application. The associated price change will likewise apply as from that date.

4.3. Technical support: Contractualization entails AGICAP’s provision of a technical support Service. That technical support can be provided either via a telephone hotline or by online chat, depending on the Package selected by the Client.

4.4. Other Services: Further, for any request for additional services not initially included in the Contract, AGICAP can send the Client a new price quote. If the Client does not request a price quote, the new Services will be carried out at AGICAP’s rates in effect on the date of the Client’s request.

ARTICLE 5. CLIENT OBLIGATIONS

It is the Client’s responsibility to:

• Submit complete, accurate information when placing an order and to update that information in event of any changes
• Designate a competent point of contact for AGICAP, for the duration of the Services
• Make sure the necessary instructions reach AGICAP in due time, to allow it to fulfil its Services as per normal
• Submit or have its partners submit all of the working documents, files and other elements required for the performance of the Services, by the agreed deadlines
• Use the Application solely for the purposes of its professional activities and, in any case, not to use it for purposes not stipulated in these Terms of Service
• Refrain from impersonating any other person or logging into an account other than its own
• Refrain from performing systems analyses which are akin to reverse engineering
• Refrain from deleting all or part of the Application and/or its technical environment without AGICAP’s authorization
• Refrain from uploading any viruses or files which could potentially pose a threat to the Application’s integrity.

If AGICAP closes the Client’s account for failure to comply with their obligations under these Terms of Service, AGICAP will have the right to terminate the Contract, as stipulated in Article 14.2, without prejudice to any damages which it may be entitled to claim or to any legal action if the behaviour in question qualifies as a criminal offence.

ARTICLE 6. LICENSE AND RIGHTS GRANTED TO THE CLIENT

AGICAP grants the Client the possibility of using the Application in accordance with its user license specific to the Application and communicated to the Client at the time of registration in the Application. The license will appear on the Application workstation’s screen when the Client account is created by the Systems Administrator, which the latter will have to accept. The Client will guarantee the Application Users’ compliance with the provisions of the license. The Client is only granted those rights which are identified in its license.

ARTICLE 7. PRICING AND PAYMENT

7.1. The applicable price is the one which appears in the Contract, pursuant to Article 3, and will depend on the Package(s) selected by the Client and the number of Company Interfaces created by the Client, for which it wants to take out a subscription. The price covers a periodic fee for use of the Application, which includes the associated technical support as described by Article 4.3. All prices are stated in euros, exclusive of VAT.

7.2. In the absence of a clause to the contrary in the Contract, the price for the fee mentioned in Article 7.1 will be payable at the time of order placement, by bank card or by SEPA transfer via the online payment provider Stripe. By making a payment, the Client is agreeing to Stripe’s terms of use, which are available at https://stripe.com/fr/ssa.

7.3. Unless otherwise provided in the initial Package as set forth in section 7.1, at the end of the Initial Term mentioned in Article 14.1, and then on each subsequent renewal date, the price of the periodic fee may be revised on an annual basis, as a function of the Syntec index, by applying the following formula: P1 = P0 x (S1 / S0), where P0 is the original price of the fee, P1 the revised price, S0 the most recently published Syntec index as at the date of the previous price revision, and S1 the most recently published Syntec index as at the date of the current price revision.

7.4. Any amounts not paid by the stated deadlines will generate interest at the rate applied by the European Central Bank to its most recent refinancing transaction, plus 10 percentage points, and will also open the Client up to payment of a flat fee of €40 in the name of compensation for collections expenses. These late fees will be payable as from the first day late, without requiring any formal notice to pay, and shall accrue until payment in full has been made for all amounts owed, including late fees.

7.5. The Client shall not be able to invoke any grounds whatsoever for delaying or modifying the payment terms or requesting a price reduction, namely include a challenge relating to the quality or non-compliance of the Services. In the absence of on-time payment, and after a formal notice to pay has gone unanswered for 48 hours, AGICAP will have the option to demand immediate payment of the remaining balance and/or suspend the fulfilment of its obligations, without prejudice to its right to claim any damages and/or terminate the Contract in accordance with Article 14.2.

ARTICLE 8. INTELLECTUAL PROPERTY

8.1. The Application is protected by copyright and by the following provisions. All intellectual property rights relating to the Application and its different constituent components and elements (documentation, copyrights, etc.) are fully and solely owned by AGICAP, its executives and/or its partners. The Client undertakes to refrain from infringing upon the said rights, either directly or indirectly or via the intermediary of a third party with which it has a relationship.

8.2. In the event of use of the Application that extends beyond the use defined in the Contract and the user license, infringement proceedings may be brought against the Client.

8.3. As part of its provision of access to the Application for the Client, AGICAP grants the latter a personal, non-transferable and non-exclusive right to use the Application. The right to use the Application excludes any other rights and shall not, under any circumstances, entail the right to perform any actions which are not expressly authorized, namely the reproduction, translation, adaptation, arrangement or any other alteration of the Application and/or its components.

8.4. As applicable, the Client warrants that all elements transmitted to AGICAP for the purpose of fulfilment of the Services shall not infringe upon any third party intellectual property rights. It will protect AGICAP against any and all consequences (including court fees, lawyer fees, damages, compensation, etc.), in the event that a third party seeks to invoke AGICAP’s liability.

8.5. AGICAP may share the name of the Client, acting as part of its professional activities, as a business reference, unless otherwise stipulated in writing by the Client.

ARTICLE 9. GUARANTEE

The Client is considered to be fully familiar with the Services it is acquiring and acknowledges that it has had the opportunity to obtain information, that it understands, about the Services it has ordered. The Client alone will determine the intended use and purpose of the Application. If granted, any request from the Client to modify any of the specifications defined by AGICAP’s Package will be implemented under the Client’s sole responsibility. Likewise, any incomplete specifications could lead to errors which shall not be attributable to AGICAP’s fault.

ARTICLE 10. RESPONSIBILITY

10.1. If there is any doubt as to the interpretation of a clause, or in the absence of information allowing the Client to determine the scope of AGICAP’s obligations, the Client acknowledges that these latter shall be understood as best effort obligations.

10.2. Under no circumstances shall AGICAP have any liability to the Client if the Services rendered conform to those ordered by the Client. An order’s compliance is assessed by referring to the Contract. Further, if AGICAP makes a series of suggestions and recommendations, as part of its performance of a Service, it shall not, under any circumstances, be held liable by the Client if the latter fails to follow those recommendations.

10.3. The Client acknowledges and accepts that AGICAP is not responsible for the content that the Client and its Users post in the Application, namely any quantitative data that they input, or for that contact’s accuracy, which shall be their sole responsibility. Under no circumstances may AGICAP be held liable by the Client for any financial difficulties encountered by the latter and/or for poor management of the Client’s cash assets.

10.4. Any challenges made by the Client in respect of AGICAP’s fulfilment of its contractual obligations must be justified and stated in a registered letter with acknowledgement of receipt, sent within one year of the date of discovery of the facts forming the grounds for that claim. Failure to do so will entail the Client’s waiver of any right to criticize AGICAP’s fulfilment of its contractual obligations.

10.5. In no instance, save in the case of gross negligence or wilful misconduct, AGICAP shall not be bound to remedy any indirect damage (moral damage, image problems or loss of business, data, profits, turnover, orders or clients) that the Client may suffer as a result of performance of the Services. Further, in its relations with the client, under no circumstances may agicap’s liability ensuing from damage caused by performance of the services exceed the amount paid by the client in the name of the contract over the previous 12 months.

ARTICLE 11. CONFIDENTIALITY

Both Parties shall hold all of the other Party’s information, data, formulas and concepts as strictly confidential and shall refrain from disclosing them, regardless of the form in which they are provided to the receiving Party (written or verbal, on magnetic, electronic or computerized media, etc.) during the course of the Contract (hereinafter the “Confidential Information”), for a period of five (5) years from the date of their disclosure to the other Party. Neither Party shall disclose Confidential Information about the other Party to any third party without the express written consent of that other Party, and will not use any Confidential Information for purposes other than fulfilment of the Contract. Each Party shall apply the same level of precaution in respect of the non-disclosure of the other Party’s Confidential Information as they do for their own Confidential Information. Confidential Information does not include information which:

• (a) is widely available to or known to the general public
• (b) was previously known to the recipient
• (c) was developed independently by the recipient, outside the scope of the Contract established in accordance with Article 3
• (d) was legitimately disclosed by a third party or is disclosed during testimony before a competent authority.

Both Parties shall take all the necessary measures with their personnel and partners to ensure compliance with this obligation.

ARTICLE 12. PERSONAL DATA

12.1. The Client is hereby informed and agrees that, when it places an order or uses the Application, AGICAP will process its personal data for the purposes of order management and supply of the Services, and this in accordance with the French Data Protection Act of 6 January 1978, as amended by French Law 2018-493 of 20 June 2018 on personal data protection, derived from the European General Data Protection Regulation. For more information about how AGICAP processes personal data, the Client is referred to AGICAP’s Privacy Policy, available at https://agicap.com/en/privacy-policy (hereinafter the “Privacy Policy”).

12.2. If, during its performance of a Service ordered by the Client, AGICAP needs to process Users’ personal data, the terms and conditions laid down in the Appendix hereto will apply.

ARTICLE 13. BANK SECRECY

The Client represents and warrants that it has expressly authorized the banking institution responsible for collecting its banking information to communicate the information to AGICAP which is necessary in order to supply Services covered by trade secrecy, in accordance with Article L522-19 of the French Monetary and Financial Code. AGICAP shall not be held responsible in the event of a violation of trade secrecy relating to the Client’s banking information, within the context of its use of AGICAP’s Services.

ARTICLE 14. TERM & TERMINATION

14.1. Unless otherwise stipulated in the Contract, the latter shall be concluded for a term of twelve (12) months (hereinafter the “Initial Term”). At the end of the Initial Term, the Contract shall be tacitly renewed for successive periods of twelve (12) months, unless terminated by either Party by registered letter with acknowledgements of receipt sent at least seven (7) days prior to the Contract’s anniversary date.

14.2. The above notwithstanding, both Parties have the right to terminate the Contract at any time, as of right, by means of a registered letter with acknowledgement of receipt, in the following instances the other Party’s full or partial non-fulfilment of its obligations, namely non-compliance with its obligations as defined by Article 5, its payment obligation, its confidentiality obligation, compliance with AGICAP’s intellectual property rights and, more generally, faithful execution of the Contract, after a formal notice sent by registered letter with acknowledgement of receipt, stating the injured Party’s intention of invoking the present clause, has gone unanswered for thirty (30) days, and this without prejudice to compensation for any direct or indirect damage caused by this termination

If, as a result of the nature of the unfulfilled obligation, it is impossible for the defaulting Party to remedy its breach (e.g. breach of an obligation not to do something), either Party may terminate the Contract, as of right, with no prior formal notice required.

ARTICLE 15. FORCE MAJEURE

15.1. Force majeure events will suspend the Parties’ obligations. Should such an event occur, the Parties will endeavour, in good faith, to take all reasonably possible measures to continue executing the Contract. If a force majeure event lasts longer than sixty (60) days, this Contract may be terminated at either Party’s initiative, with no entitlement to compensation on either end.

15.2. The following are expressly considered to be force majeure events: lock-outs, strikes, epidemics, embargoes, accidents, extraordinary weather events, blocked or delayed transport and any other event outside AGICAP’s control which leads, for example, to full or partial layoffs at AGICAP or to fully or partially blocked means of communication, including networks.

ARTICLE 16. TRANSFERS

16.1. Under no circumstances may the Contract be transferred, in whole or in part, for a fee or free of charge, without the express prior written consent of AGICAP.

16.2. AGICAP reserves the right to transfer this Contract, with no formalities required, on condition of giving the Client advance notice thereof.

ARTICLE 17. APPLICABLE LAW & DISPUTES

All the clauses laid down in these Terms of Service and all the contractual operations referenced herein shall be subject to French law, unless an international convention applies. The client expressly accepts that any dispute ensuing from the actions referenced herein shall fall under the exclusive jurisdiction of the commercial court of lyon, france, even in cases involving multiple defendants or the introduction of third parties.

ARTICLE 18. FORBEARANCE & PARTIAL NULLIFICATION

18.1. No act of forbearance by either Party toward the other, particularly any forbearance regarding payment terms, shall be interpreted as a waiver of the right to enforce all its rights hereunder at a later date.

18.2. The cancellation of one this Contract’s clauses shall not affect the validity of the others.

ARTICLE 19. PROOF

In the event of a dispute, the Parties agree to consider emails and exchanges via the Application and via chat to be original writings, constituting binding proof, and waive the right to challenge this means of proof, save to challenge the authenticity of a piece of proof.

APPENDIX 1 - DATA PROCESSING AGREEMENT

ARTICLE 1 – OBJECT

Within the framework of the services provided by AGICAP to the Client (hereinafter the "Services"), which are the subject of the contract for the provision of services (hereinafter the "Contract"), AGICAP processes personal data on behalf of the Client (hereinafter the "Personal Data"), thus acting as a DCP processing subcontractor within the meaning of the Legislation on data protection (as defined below).

By the present Appendix, the Parties wish to define the conditions under which AGICAP undertakes to carry out on behalf of the Client the Personal Data processing operations resulting from the Services and the respective responsibilities of the Parties in this matter.

It is understood between the Parties that this Appendix cancels and replaces any provision relating to the processing of Personal Data that may have been agreed between the Parties for the purposes and/or in application of the Contract.

ARTICLE 2 – OBLIGATIONS OF THE PARTIES

1. Applicable regulations

In the performance of their contractual relationships, the Parties shall undertake to comply with the applicable regulations on personal data processing and, in particular, the regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 as well as any other legal provision of the Union or of Member States bearing on data protection (hereinafter "the Data Protection Regulation").

2. Treatment details

2.1 Perimeters of treatments

Under the Agreement, AGICAP is authorised to process, on behalf of the Customer, the Personal Data necessary to provide the following service(s) (hereinafter the "Services"):

• Setting up and training on the AGICAP application;
• Customer service and problem solving on the AGICAP application;
• Maintenance of the AGICAP application;
• Demonstration of the AGICAP application with Personal Data;
• Hosting of the AGICAP application;
• Account management of the AGICAP application; and
• Incident management.

2.2 Objects of treatments

The purpose of the processing is the implementation by AGICAP of operations of collection, recording, conservation, use, etc., on behalf of the Client, within the framework of the Contract and when necessary for the execution of the Services.

2.3 Purpose of the processing

As a subcontractor, AGICAP will be required to process Personal Data to carry out the following operations:

Parameterisation and training on the AGICAP application:

• Verification of needs and parameterization
• Help with the configuration
• Training on the application
• Management of telephone and e-mail appointments
• On-line assistance
• Adding users to the application

Customer service and problem solving on the AGICAP application:

• Support on the application
• Response to online chat requests
• Access to customers' online accounts for problem resolution
• Management of bank synchronisation issues
• Management of prospect requests
• Adding users to the application

Maintenance of the AGICAP application:

• Development of the application
• Management of incident tickets on the application
• Resolution of incident tickets
• On-line assistance

Demonstration of the AGICAP application with Personal Data:

• Selection of prospects for demonstrations
• Management of demonstrations on the AGICAP application
• Needs assessment
• Follow-up of clients following the demonstrations

Hosting of the AGICAP application :

• Management of the hosting of the application in Saas mode
• Management of backups and updates of the application
• Conservation of logs for incident traceability

Management of accounts on the AGICAP application :

• Management of regular events
• Presentation of functionalities
• Monitoring of customer accounts
• Management of alerts
• Online assistance
• Adding users to the application

Incident management:

• Taking into account feedback from Customer Success
• Taking into account of incidents
• Resolution of incidents, improvement of the application
• Management of incident tickets
• Consideration of incidents in the context of demonstrations

2.4 Types of Personal Data

The processed Personal Data are:

• Identity data (surname, first name, address);
• Personal data (telephone number, e-mail address);
• Professional data (telephone number, e-mail address, professional status);
• Economic information (banking transactions);
• Connection data (IP address, logs);

2.5 Category of persons concerned by the treatments

The categories of persons for these treatments may be :

• Clients of the Client;
• Employees of the Client.

3. Duration of the treatment

Personal Datas are processed for the duration of the Contract.

4. Obligations of AGICAP

AGICAP undertakes to:

• Process the Personal Datas solely for the purpose(s) defined in the Amendment and/or in the Agreement,

• Process the Personal Datas in accordance with the documented instructions from the Client, as well as any subsequent instruction of the Client,

• Where AGICAP is obliged to transfer Personal data to a third country or an international organisation, under applicable law, AGICAP shall inform the Client of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest,

• Inform the Client immediately if AGICAP considers that an instruction constitutes a breach of the Data Protection Legislation or any other provision of the Data Protection Legislation,

• Guarantee the confidentiality of Personal Datas processed hereunder, and in particular to take all measures to prevent them from being distorted, damaged or communicated to unauthorised third parties, throughout the duration of the Contract,

• Ensure that the persons authorised to process the Personal Data hereunder:

  • Have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
  • Receive the appropriate personal data protection training,

• Take into consideration, in terms of its tools, products, applications or services, the principles of data protection by design and by default.

5 Sub-contracting

5.1 Use of a Subsequent subcontractor

AGICAP may engage another processor (hereinafter the "Subsequent Subcontractor") to conduct specific processing activities. In this case, AGICAP shall inform the Client, in writing beforehand.

The list of Subsequent Subcontractors approved by the Client, on the day of the conclusion of the present contract, is shown in Appendix A. AGICAP undertakes to regularly update this list and to communicate, on simple request from the Client, the updated list of all its Subsequent subcontractor.

Furthermore, AGICAP undertakes to inform the Client of any change envisaged regarding the addition or replacement of a Subsequent Subcontractor and may not implement the subcontracting without its prior agreement.

Such written notification must include the following information

• The Personal Data processing activities subcontracted;
• The identity and contact details of the Subsequent Subcontractor;
• The dates of signature and entry into force of the contract between AGICAP and the Subsequent Subcontractor envisaged.

The Client has a minimum of eight (8) days from the date of receipt of this information to present any objections to the envisaged change.

In the absence of objections formulated by the Client within this period, this subcontracting is presumed accepted.

5.2 Guarantees submitted by the Subsequent Subcontractor

In case of subcontracting duly authorised by the Client, AGICAP guarantees the Client that any Subsequent Subcontractor brought to treat in any way all or part of the Personal Data :

• Is contractually bound to respect the same defined conditions as those of AGICAP set out in this Annex and AGICAP guarantees the respect of these obligations by its Sub-processor.
• Presents the same sufficient guarantees as to the implementation of appropriate technical and organisational measures so that the outsourced processing meets the requirements of the Data Protection Legislation.

If the Sub-processor does not fulfil its data protection obligations, AGICAP remains fully responsible to the Client for the fulfilment of these obligations.

6. Data subjects' right to information and exercise of data subjects' rights

6.1 Data subjects' right to information

It is the Client’s responsibility to inform the data subjects concerned by the subcontracted processing at the time Personal Data are being collected.

6.2 Exercise of data subjects' rights

AGICAP shall assist the Client, insofar as this is possible, for the fulfilment of its obligation to respond to requests for exercising the data subject's rights: right of access, to rectification, erasure and to object, right to restriction of processing, right to data portability, right not to be subject to an automated individual decision (including profiling).

Where the data subjects submit requests to AGICAP to exercise their rights, AGICAP must forward these requests as soon as they are received by email at the address provided by the Client by any means.

7. Notification of Personal data breaches

AGICAP shall notify the Client of any personal data breach as soon as possible and, if possible, 72 hours at the later after becoming aware of it, unless the violation in question is not likely to create a risk for the rights and freedoms of individuals.

Said notification shall be sent along with any necessary documentation to enable the Client, where necessary, to notify this breach to the competent supervisory authority.

8. Assistance lent by AGICAP to the Client regarding compliance with its obligations

AGICAP assists the Client in carrying out data protection impact assessments.

AGICAP assists the Client with regard to prior consultation of the supervisory authority.

It is expressly understood that any intervention by AGICAP within the framework of the Agreement, and in particular assistance in carrying out data protection impact assessments, in carrying out prior consultation with the supervisory authority or in exercising the rights of the data subjects, will be invoiced to the Client in accordance with its current price list.

9. Security measures

AGICAP undertakes to implement technical and organisational measures to ensure, with regard to the subcontracted processing, the security of Personal Data, and in particular the following security measures:

• The implementation of access control and management of authorisations relating to business software;
• Pseudonymisation and encryption of Personal Data;
• No paper documents are kept on the premises;
• Means to ensure the continued confidentiality, integrity, availability and resilience of processing systems and services;
• Means to restore availability and access to Personal Data in a timely manner in the event of a physical or technical incident; and
• A procedure to regularly test, analyse and evaluate the effectiveness of technical and organisational measures to ensure the security of processing.

It is understood between the Parties that, should changes in legal, regulatory and/or control authority requirements in terms of technical and organisational measures make AGICAP’s obligations more onerous, the Parties undertake to meet to find an amicable solution to the adjustments to be made to the Contract as a result of these changes. If, within sixty (60) days of AGICAP’s notification of this change, the Parties have not been able to agree on the adjustments to be made to the Agreement following the aforementioned change, the most diligent Party may terminate the Agreement by giving sixty (60) days' notice.

10. Fate of Personal data

At the end of the Agreement, AGICAP undertakes, at the parties’ choosing, to:

• Destroy all Personal Data, or
• Return all Personal Data to the Client, or
• Return the Personal Data to the processor designated by the Client.

Together with said return, all existing copies in AGICAP’s information systems must be destroyed, unless except if the legislation imposed on AGICAP prevents it from returning or destroying all or part of the Personal Data. Where applicable, AGICAP guarantees the confidentiality of the Personal data retained and will no longer actively process the said Personal Data. Once destroyed, AGICAP must demonstrate, in writing, that this destruction has taken place.

11. Data Protection Officer

AGICAP communicates to the Client the name and contact details of its data protection point of contact, if one has been appointed in accordance to article 37 of the General Data Protection Regulation.

12. Record of categories of processing activities

AGICAP declares that it keeps a written record of all categories of processing activities carried out on behalf of the Client including: The name and contact details of the Client on whose behalf it is acting, of any subcontractors and, if applicable, of the data protection officer;

• The categories of processing carried out on behalf of the Client;
• Where applicable, transfers of PAD to a third country or to an international organisation, including the identification of that third country or international organisation and, in the case of transfers referred to in the second subparagraph of Article 49(1) of the European Data Protection Regulation, the documents attesting to the existence of appropriate safeguards;
• Where possible, a general description of the technical and organisational security measures.

13. Transfer of Personal Data outside the European Union

AGICAP is entitled to transfer or process any Personal Data outside the EEA without the Client’s express prior written consent. In such circumstances, AGICAP undertakes to ensure that such transfer is covered by:

• Standard data protection clauses adopted by the Commission or a supervisory authority in accordance with Article 46 of the GDPR,
• Binding corporate rules approved by a supervisory authority in accordance with Article 47 of the GDPR;
• A code of conduct approved in accordance with Article 46 of the GDPR,
• Certification mechanism approved in accordance with Article 46 of the GDPR,
• An adequation decision of the Commission with Article 45 of the GDPR.

In all cases, AGICAP shall inform the Client and provide him with all relevant information enabling the Client to comply with his obligations in the event of a transfer of Personal Data.

14. Documentation – Audit

AGICAP provides the Client with the necessary documentation for demonstrating compliance with all of its obligations and for allowing the Client or any other auditor it has authorised to conduct audits, including inspections, and for contributing to such audits.

In any event, such an audit may only be carried out by the Client, once a year, during the Agreement, may not be carried out in August and may only be carried out by an independent third-party auditor chosen by mutual agreement between the Parties and subject to an obligation of confidentiality. The Client must inform AGICAP of the carrying out of such an audit, by registered letter with acknowledgement of receipt, at least four (4) weeks before the audit operations. The Client will bear all the costs attached to this audit. The audit may under no circumstances disrupt AGICAP’s normal activity, in this sense, it may only take place during AGICAP’s opening hours.

Should the audit reveal non-conformities, AGICAP undertakes to implement any corrective action within sixty (60) days.

15. Client’s obligations with respect to AGICAP

The Client undertakes to:

• Provide AGICAP with the Personal Data,
• Document in writing any instructions regarding the handling of Personal Data by AGICAP,
• Ensure, before and throughout the processing, compliance with the

obligations set out in the Data Protection Regulation on AGICAP’s part,

• Supervise all treatments, including by conducting audits and inspections with AGICAP.

As controller, the Client guarantee full compliance with the Data Protection Regulation.

16. Responsibility concerning Personal Data

In their relations, each Party shall be solely liable for the damage caused by any failure to comply with its obligations under this Agreement and the Data Protection Regulation.

Consequently, each Party guarantees the other against any harmful consequences resulting from the failure to fulfil its obligations.

APPENDIX A

DESCRIPTION OF THE SUBCONTRACTED PROCESSING

1. Instructions of the Client

To be communicated in writing by the Client in due course.

2. List of European Sub processors

We use the services of third parties, sub-processors within the meaning of the GDPR. In this context, personal data will be passed on to these (sub-)processors in accordance with Art. 28 GDPR:

3.List of non-European Sub processors

We use the services of third parties, sub-processors within the meaning of the GDPR, who are based in a third country. In this context, personal data will be passed on to these sub-processors in accordance with Art. 28 GDPR and in compliance with the following appropriate safeguards in accordance with the GDPR: