AGICAP terms of service
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 make reasonable changes to these Terms of Service at a later date and that their relationship will continue to be governed by the most recent terms and conditions in effect as at the date of order placement.
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 simplified joint stock company with capital of €13,572 and head offices located at 13 quai du Commerce, 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
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: is widely available to or known to the general public was previously known to the recipient was developed independently by the recipient, outside the scope of the Contract established in accordance with Article 3 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
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 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 an unfavourable change in the Client’s financial or business position, that could lead to a default on payment. 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 & SUBCONTRACTING
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 utilize the subcontractor(s) of its choice. AGICAP also 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