GENERAL CONDITIONS 1stKYC
- IT IS BROUGHT TO THE ATTENTION OF USERS (SEE DEFINITION BELOW) THAT THIS SITE WAS DEVELOPED IN A POSITIVE SPIRIT OF COLLABORATION BETWEEN THEM AND THE COMPANY.
- THEY ARE REQUESTED TO READ VERY CAREFULLY THE GENERAL CONDITIONS BELOW WHICH APPLY TO ALL RELATIONS BETWEEN THE COMPANY AND THE USERS.
1 General terms and conditions
- The company which operates the www.1stkyc.com website and which operates the application is the company under Luxembourg law AML SERVICES sa, whose registered office is at 9, rue des Trois Cantons at L-8399 Windhof (Luxembourg), RC B242393.
- here defined as “the Company”.
- Unless otherwise expressly agreed and accepted in writing, these general terms and conditions are the only ones applicable to all our offers, orders, commitments or contractual relations, even if the user’s terms and conditions assert their own primacy. The general terms and conditions have necessarily been read and approved at the time of entering into the relationship and are available at any time on the company’s website (www.1stkyc.com).
- The present General Conditions are established in French, which will be accepted as the sole language of reference. Translations into other languages are established for information purposes only.
- No waiver, change, variation or addition to the present General Terms and Conditions may only be effective in the form of a writing expressly accepted by the affixing of the authorized signature of each of the two parties on or after the date of signature of the contract or offer by each of the two parties. No argument may be drawn from a favour, even if it has been repeated.
- These conditions apply to the use of the www.1stkyc.com website, hereinafter defined as “the Site”. The Site allows both a general online presentation of the company and its products and services, on the one hand, and access to the Applications discussed below, on the other hand.
- The “FILE” must be understood as being made up of all the information entered by the Owner and the Users authorised by him/her in the database or databases that they have created.
- The “OWNER” of a FILE must be understood as the one who has registered as such and is legally responsible for the entity that has registered; it is defined under the generic term “the Owner”. In other words, is considered to be the Owner of the File, not in the primary sense of the term, but in the sense of “owner of all the rights of use related to the subscription, a right which he may also dispose of vis-à-vis his employees, principals and other servants, for which the Owner remains responsible”. Such an Owner, within the meaning of this Agreement, may technically, as the person responsible for the File, invite a User (who would, for example, be one of his or her principals) to access his or her File, but he or she does so under his or her sole, full and complete responsibility.
- The “USERS” of the site are the persons who are defined under the generic term “the User”: these are the persons who will be able to use the site and its various functionalities, or only some of them, following an invitation received from the Owner, in the context of their professional activity, regardless of their level of responsibility at the level of the entity that has been registered by the Owner. The Owner is also a User, but with the highest level of authorization.
- The User is always a natural person who is obliged to identify himself/herself correctly by communicating correct data to the company, which cannot be held responsible for incorrect or incomplete information.
- The site offers the use of an application designed to manage the LCB/FT (Anti-Money Laundering & Terrorist Financing) files of the Owner’s customers, an application called 1stKYC.
- As developed in the “Confidentiality” points below, the Company never transmits to any external operators whatsoever, any information relating to Users. If it has to use subcontractors, as is the case, for example, for the servers it uses to host its data, these are servers that benefit from the highest possible degree of security and confidentiality.
- Whether or not they are in a test period, the User, here understood in the broadest sense, acknowledges that they have a right to use the site, but no more than that. He remains the owner of the data he has encoded on the site and has the possibility of repatriating them locally in json standard format.
- The issue of the retention period of the summaries sent to him is the exclusive responsibility of the user: it is up to him to examine, in the light of the Directives, laws and regulations on which he depends, how he intends to use the tool and the retention period of the data he has compiled, collected or both through the applications.
- The company shall give prior notice, and in the event that the user’s subscription is terminated for more than 60 days, of the fact that it will deactivate the File that is unused during this period. Users’ attention is drawn to the fact that as soon as the subsequent deactivation is effective, unless otherwise specified by the owner, no one will have access to the data.
3 Acceptance of the product
- The site offers Applications that are in permanent offer. The fact that a User registers as Owner or User obliges him/her to read and expressly accept these general terms and conditions. Access to the Applications is not possible, even in the context of free trial use, without confirmation that the User has read and expressly accepted these terms and conditions.
- The Applications have been designed to operate independently by the Company. By registering on the site, Users undertake to accept and use the Applications as they are and to tolerate that the Company makes any modifications to the site that it deems useful for the development of the Applications.
4 Minimum hardware configuration
- In order to use the Applications correctly, Users need a computer connected to the Internet via a good quality line.
- Users have checked the quality of their line; good use requires a connection that is free of frequent interruptions and has sufficient speed. For information: the loss of connection with the server does not present a risk of file corruption but rather represents an inconvenience for the User.
- The site supports all the usual Internet browsers, with the exception of Microsoft Explorer for which reservations are made.
5 Limitation of liability & control
- The company guarantees the proper functioning of the Applications, provided that they are used correctly, as indicated in the aid.
- Should a programming error made by the Company be detected, the Company undertakes to correct it as soon as possible. The Company’s liability is limited to this point.
- Users ensure that they have sufficient knowledge in the professional areas covered by the Applications made available to them to ensure their proper operation. The Company may not be held liable for handling or interpretation errors, whatever their consequences.
- The Applications are intended for use in connection with activities that are legal and recognized in their country of origin.
- Neither of the parties shall be held liable to the other in the event of failure or delay in the performance of its above obligations attributable to a case of “force majeure” or a fortuitous event.
- The Company shall not be held liable for any event occurring outside its scope of intervention and/or provision of services. All the exclusions relating to its liability are set out in the general terms and conditions.
- They result, among other things, from the civil liability insurance taken out by the Company (extract below).
- By civil liability insurance contract, we mean the contract taken out by the Company to cover the contractual and extra-contractual civil liability that may be incumbent upon it due to damages of any kind caused to Third Parties and resulting from errors, omissions or negligence committed by it, in its capacity as a provider of IT services in the context of its activities.
- Neither of the parties shall be liable to the other in the event of failure or delay in the performance of its obligations above attributable to a case of force majeure or fortuitous event.
- Within the framework of the liability and insurance provisions, which will follow, the term “Insured” may refer to the Company, but also to certain Users of this or that function of the site.
- Are excluded the guarantor of the Company and consequently excluded from the possible liability of the Company within the framework of the present agreement :
- – Damages caused intentionally by an Insured, who would use the material made available to him for the purpose of harming the interests of a Third Party, for example. However, if the Insured at fault is neither the policyholder nor one of his associates, directors, managers, organs, executive employees, technical manager, the guarantor remains acquired by the Insured other than the person at fault, subject to the deductible provided for contractually and the recourse that the company is entitled to exercise against the latter.
- Also excluded are damages caused by :
- – The manner in which the business is carried on, accepted by the Insured or by a failure to comply with the standards of prudence or safety appropriate to the insured activities to such an extent that the harmful consequences of such failure or manner of carrying on business were – in the opinion of any person normally competent in the matter – almost inevitable;
- – Multiple repetitions, due to the absence of precautions, of damage of the same origin;
- – Failure to subject the methods recommended or used to sufficient prior verification, taking into account the knowledge acquired in technical and scientific terms.
- Damages resulting from the non-return of funds, breach of trust, embezzlement, misappropriation or any similar conduct, as well as unfair competition or infringement of intellectual rights such as patents, trademarks, designs or models and copyrights;
- Judicial, transactional, administrative or economic fines, punitive or dissuasive damages (such as “punitive damages” or “exemplary damages” for certain foreign rights), as well as the legal costs of repressive proceedings.
- The civil liability of the corporate officers of the insured company incurred by virtue of the legislation in force in the event of mismanagement committed by them in their capacity as directors or managers.
- The liabilities that may be incumbent on subcontractors, associates or members of a consortium or temporary association, working in collaboration with the Company.
7 Responsibility of the User
- The User expressly undertakes, notwithstanding the possible use of the support services, to report any technical problem of any kind that he or she may encounter during use as soon as possible, in writing.
- If it should turn out that a User has failed to comply with this duty of diligence and good cooperation within 24 hours of the occurrence of a problem, the User will be precluded from claiming compensation for any damages that may have resulted.
- Without prejudice to the foregoing, the Company’s full and entire liability towards the User, with regard to the Services provided on the basis of this Contract, as well as any negligence, positive act or omission committed by the Company’s consultants, whether subcontractors or agents, taking into account death, injury, loss or damage caused by, or resulting from, any predicted entity, shall in no way be sought when the User’s actions interfere with the Company’s services.
- As Luxembourg law applies within the framework of the present conditions, there can be no question of claiming anything other than the actual damage.
8 Recourse to the assistance service
- The help-desk under “Need help / New help ticket” is always available. This is the only correct way to contact the help-desk. The Company does not guarantee a correct follow-up of support requests that would have been made in any other way.
- The price of the Help Desk is included in the fee for the use of the application.
- The Company will take all due care and take all useful measures to ensure the best possible helpdesk service, but cannot be held responsible for problems external to its organisation such as failure of users’ equipment or insufficient technical knowledge in the matters concerned by the Applications.
- In the event of unavailability of the support service via tickets, it is also possible to exchange tickets by e-mail at the following address: email@example.com.
- The company will give its best care to requests made by email but does not guarantee the response time.
- Subject to Article 10, prices for the various applications offered by the site are readily available on request via the various forms available.
- The announced prices are valid for the current calendar quarter. Any changes will be made with a minimum of 15 days’ notice.
- The announced prices are always expressed excluding VAT. The application of VAT is subject to the legal provisions in force in the country of the users.
- Only the methods of payment indicated on the site are accepted by the company. Payment by cheque will always be banned.
10 Market segmentation
- Insofar as tax policy may vary from one country to another and insofar as the Applications are aimed at all countries, Users are fully informed that the prices displayed on the Site are “tax neutral”, i.e. expressed exclusive of VAT and exclusive of any other type of taxation that such or such country may apply to the sale of the Application’s services due to a territorial link or any other link that links Users or any other party to that country.
- The Owner expressly agrees that it is aware that the prices are expressed net of any taxation and that any taxation that may be due in its country of origin may be additionally reflected in the invoicing sent to it, in other words that the prices displayed may be increased by VAT or any other existing or future tax that may be claimed by a state intervening at any level whatsoever in the process of issuing the Applications made available to said users by the Company.
11 Terms of payment
- The right to use the Applications is invoiced according to a price grid found in the Settings / General information menu and taking into account the volumes of information specific to each Folder managed by the system. This right of use is invoiced in advance, on the anniversary date of the switch to the paid version.
- After payment, invoices are sent electronically to the address indicated by the OWNER on the “My information” page in the “Settings” menu (www.1stkyc.com/fr/application/settings). Any other address is excluded.
- For a good transmission, the OWNER will make sure that this address is always correct.
- The methods of payment are chosen by the OWNER when registering among the options offered by the STRIPE. cash-out site and are :
- – direct debit or credit card
- – SEPA Direct Debit
- In the event that the STRIPE payment organisation refuses the direct debit for any reason whatsoever, the Company will be entitled to claim from the owner at least the charges imposed by the Stripe® external partner and which, as an indication, are generally 7€ / transaction refused.
- If an invoice is not paid within 90 days, the file will be deemed to be dormant and may be deleted without further notification.
- Any claim or request for information relating to invoicing or questions about payments will be sent to the email address firstname.lastname@example.org.
12 Application testing period
- All applications have a free trial period.
- During the test period, free access to the applications is limited to fifteen days and to a single Folder, with no limit on the number of records per Folder.
- An Owner can invite as many other Users as he wishes in his Folder.
13 Intellectual property
- Intellectual rights are those rights qualified as such through the definitions given by the various legal systems in the world, whether legal systems or definitions that derive from Common Law systems and are therefore legally recognized, and in particular :
- – Copyrights, patents, trade secrets, manufacturing secrets, know-how or know-how, trademarks, patents, inventions, designs, logos, trade dress, moral rights (Cfr. Infra, such as copyright, for example), masked words, slogans and other advertising formulas and derivatives of any form, used for professional commercial purposes, and any other form of private immaterial rights.
- – Any application or right of application of the aforementioned rights
- These rights are never transferred except in a strictly limited manner and only by virtue of an express, prior and written agreement of the Company.
- An implicit renewal, extension or restoration of this license assignment is not synonymous with assignment.
- In other words and in summary, the intellectual rights implemented or used in the context of the use of the site remain the property of the Company, unless expressly agreed otherwise in writing.
- The intellectual property rights related to the site and its image are also the exclusive property of the Company and include in particular :
- – The rights of reproduction and communication to the public.
14 Modes of exploitation
- The Company alone shall have the right to fix the work, in whole or in part, by any technique on any medium, and in particular:
- – An online medium, including the Internet, as well as any Intranet network, any computer terminals in private and/or public places. The authorization to reproduce on the Internet also includes the authorization to establish any link from or to the site where the work is reproduced, and in a general way to make the site and its contents any normal use;
- – A “paper” medium such as :
- – the publication in whole or in part in a periodical, information publications, books, syllabus, instructions for use, etc.; – a “paper” medium such as: – the publication in whole or in part in a periodical, information publications, books, syllabus, instructions for use, etc.; – the publication in whole or in part in a magazine, information publications, books, syllabus, instructions for use, etc.
- – The ability to reproduce the work on another medium, including off-line computer media such as CD-ROM, databases, diskette, DVD, USB stick, Flash drive, etc.
- – The right to reproduce the work in an unlimited number of copies of each medium;
- – The right to distribute the work and to communicate it to the public by any communication technique, including communication by cable, satellite, radio waves, Internet and computer networks
15 Specific intellectual property
- The user of the 1stKYC application is advised that the “Watch list” used by the system is limited to the uses provided by the 1stKYC application, to the exclusion of any other use.
- The Watch list is confidential and may not be altered, modified, used or disclosed under any circumstances.
- Neither of the parties may assign or transmit, whether for a consideration or free of charge, all or part of its rights or obligations resulting from the agreement to a third party, without the prior written agreement of the other party: this clause is generic and concerns all aspects of the company’s activity and these general terms and conditions, but is also particularly valid for all elements of intellectual property.
16 Claims and applicable law
- With regard to complaints, a distinction should be made between general complaints and complaints relating more specifically to invoicing.
- For any dispute, controversy or claim arising from the application of these general terms and conditions or any subsequent modification relating thereto (which would relate in particular, but not exclusively, to their formation, validity, binding effects, interpretation, execution, violation or resolution) and any extra-contractual claim, or, in general, any claim other than those concerning the specific point of the invoice (see below), on pain of nullity (inadmissibility), the parties, i.e. the Company and the Owner, undertake to first seek an agreement through mediation by an approved mediator (www.cmcc.lu).
- The mediator will be appointed by mutual agreement of the parties or, failing this, by the President of the Commercial Court of Luxembourg from the list of lawyers who have followed the training and are approved mediators.
- Unless the parties expressly agree otherwise, the mediation shall not exceed 3 months from the date of the appointment of the mediator.
- The place of mediation shall be Luxembourg and the language of the proceedings shall be French.
- In the event of failure of the mediation, and only in this case, the dispute will then be submitted exclusively to the Courts of Luxembourg.
- The present general conditions are governed by Luxembourg law. The present General Terms and Conditions are established in French. This language will be accepted as the sole language of reference. Translations into other languages are established for information purposes only.
- Under penalty of foreclosure, complaints concerning invoices must be notified in writing within 8 calendar days from the date of dispatch of the invoice and/or the summary e-mail. Invoices whose summary (e-mail) has not been protested within the specified period are in any case no longer contestable upon receipt.
17 Legal costs
- In the event that a dispute concerning a sum obligation is brought before the Courts, it is recalled that all countries of the European Union, through legislation or case law, have recognized the principle of “reasonable compensation for the relevant recovery costs incurred as a result of late payment”.
- For information, in practice, there is a tendency for the courts to award compensation equivalent to at least 10% of the unpaid amount, for procedural compensation alone, without prejudice to other damages or those mentioned above and without counting bailiff’s fees and other costs …
- Luxembourg law is applicable to all claims arising from the use of the site. The courts of Luxembourg have sole jurisdiction.
18 Confidentiality of data
- Since the Company uses subcontractors for the servers it uses to host its data, it has chosen servers that benefit from the highest possible degree of security and confidentiality in compliance with ABE recommendations.
- The Company takes all necessary measures to preserve the integrity of the data stored on its site by Users.
- Data security
- The data of natural & legal persons registered by the Users are stored in my sql tables located on the server of the company OVH in Frankfurt (Germany). These data are systematically and automatically encrypted by the system, according to the AES-256 standard.
- The data is automatically uncrypted by the system during search operations in external databases, as part of the vigilance policy. This is done automatically, without any human intervention. Under no circumstances will the Company make any changes to Users’ data.
- Our Company’s employees are not aware of the encryption key used to secure User data, which is held by the Development Manager alone. He will only be able to access this key in the event of a major problem and with the express prior agreement and collaboration of the File Owner.
- For troubleshooting procedures, the Company will use a software allowing it to connect remotely to the User’s computer (such as “Teamviewer”) and to troubleshoot the User with his agreement & collaboration.
- Conservation of data
- The User remains solely responsible for the data transmitted to the Company, he must ensure, prior to any transmission, that it is saved and copied in paper format.
- This copy must be kept by the client until the final verification of the transfer and for at least 5 years.
- Pursuant to the article of the 4th European Directive (2015/869), the User and the Company are required to keep these documents for at least 5 years.
- If such a copy is not kept for this period, the Company cannot be held liable in any way for any problems of missing or corrupted data.
- Similarly, access to confidential data (such as passwords, information relating to the User’s customers, etc.) recorded in the File is at the sole responsibility of the User, who, except in the case of obvious fraud, may not hold the Company liable if such data is used, distributed, stolen or pirated.
- Likewise, the Company cannot be held responsible for any incidents, not within its jurisdiction, which would lead to an abnormal distribution of the information stored on its site.
- Our company provides services that involve the collection of personal data from individuals residing, in particular, in the European Union, and is therefore subject to the GDPR.
- As far as the application of the GDPR is concerned, the data in question relates to the Owners and Users, whether paying or not, of the Site and Applications, and not the data that they themselves encode in their Files.
- The data that the Owners and Users encode in their Files are their exclusive property, they are placed under their exclusive responsibility and are encrypted in such a way that the Company’s development manager can only access them with their consent (the Owner’s explicit consent) to the extent that it implies active collaboration in the implementation of the decryption of the computer key by the members of the Company.
- As a natural person resident in the European Union, the Owner and the User hereby give their consent to the processing of their personal data, including sensitive data.
- As a company, with regard to the personal information of your employees, managers, shareholders or others, we consider that the processing of their personal information is necessary for the purposes of the legitimate interests pursued by our company (essentially, with regard to our website: customer information) in accordance with article 6 f of the GDPR.
- Our company only keeps this information for the period during which the right to use it is granted or for the duration of the legal obligations arising from the fight against money laundering and the financing of terrorism, and by virtue of its obligations arising from its liability.
- Our internal procedures and our servers are designed to guarantee the greatest possible security of your data.
- Your rights, as guaranteed by the GDPR, are as follows:
- A right of facilitated access.
- In the event of a request for access by a natural person (Owner or User) to his/her personal data, in addition to the fact that they form part of his/her Personal File and are accessible to him/her, this natural person may contact our Data Officer (see below) responsible for notifications, who will then have a maximum of one month to satisfy it: in this case, the Owner will be asked for prior written authorisation to access the encryption key by the Company, which otherwise does not have access to this data.
- At any time, a User may view his personal data as recorded on the Site, by consulting the “My Account” page.
- A right to forget
- In any case, a User may delete his account himself, which will have the effect of immediately deleting all his personal data, with the corollary of being unable to access the Applications.
- If an Owner deletes his account, he also deletes, in addition to his personal information, the Folder(s) he owns.
- A right to limit processing
- This right is only applicable in a few specific cases provided for in section 18 of the GDPR. Please contact us if you believe you are in one of these cases.
- A right to data portability.
- This is a new right under the GDPR that allows a person to retrieve the data they have provided in an easily reusable form and, where appropriate, to transfer it to a Third Party. By going to the “My Profile” menu and clicking on the “Export Data” button, all the information contained in your File(s) is transferred to you in electronic format (JSon)”.
- Information concerning data security
- Notification in the event of a data breach. Companies will be required to take action in the event of a security breach resulting in the destruction, loss, alteration or unauthorized disclosure of data.
- In the event of a security breach, the Company will notify the competent regulatory authority (the Commission for the Protection of Personal Data) within 72 hours. The natural persons concerned will be informed as soon as possible if the breach or violation of data involves a high risk to their rights and freedoms.
- Our server is subject to a daily file backup procedure carried out by the hosting company OVH in Frankfurt (Germany). As a sub-contractor, this company has committed itself to apply the GPDR and to notify us of any data compromise.
- General terms and conditions of the hosting provider
- The terms and conditions of the host, OVH are available on their site.
- Data Protection Officer
- As our company has less than 25 employees, no DPO has been appointed, but Mr. Michel Vansimpsen (email@example.com) is responsible for these functions. Users are invited to take into account the size of the company when dealing with the person assuming the DPO function.
- In derogation of the first paragraph of art.18, the Owner accepts that the logo of his company/entity be included in a page “References / They use 1stKYC” on the Company’s website.
- In the event that the Owner objects to this listing, he must notify the Company, and more specifically Michel Vansimpsen at firstname.lastname@example.org.
20 Personnel management
- The HR manager is Ariane Vansimpsen.
- As a Company manager, she has access to the specific directory where all personal information (pay slips, …) of our company’s personnel is stored.
21 Management of subcontractors
- Our company chooses subcontractors with sufficient guarantees.
- We work with two subcontractors:
– the host of our applications is the company OVH, 2 rue Kellerman in F59100 Roubaix (France), RC 424 761 419 00045, with server located in Frankfurt (Germany)
– the provider of the AML database information is NameScan, Suite 213, 7 Railway Street, Chastwood, NSW 2067, Australia.
22 General information on the GDPR
- The “Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, in abbreviated form GDPR” is on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repeals Directive 95/46/EC (General Data Protection Regulation),” OJ L 119, 4.5.2016, p. 1-88, § (n.d.), htp://data.europa.eu/eli/reg/2016/679/oj (“GDPR”).
- Our company provides services that involve the collection of personal data from natural persons residing, in particular, in the European Union, and is therefore subject to the RGDP. It also processes personal data concerning its partners, collaborators and employees.
- As a subcontractor ourselves, we confirm that we have adopted the procedures required by the RGPD and undertake to notify the Owners without delay of any information concerning this processing of data on behalf of third parties.
- For Luxembourg, any person wishing further information may contact the Commission for the Protection of Privacy at the following address Commission Nationale pour la Protection de la Vie Privée, whose registered office is at 1, avenue du Rock’n’Roll, L-4361 Esch-sur-Alzette, or any other similar body within the European Union.
- Contact with this organisation can be made via the following link: htp://www.cnpd.public.lu/fr/support/contact/index.php ).
- The customer is solely and uniquely responsible for any illegal use that he may make of the tools that are made available to him.
- Thank you for your attention and your trust.
- The 1stKYC staff thanks you for your trust and does everything possible to ensure that users maintain a high level of satisfaction.