Abbove SA, a company under Belgian law, whose registered office is located at 1040 Etterbeek, Cours Saint-Michel 30/A (Belgium), and registered at the Crossroads Bank of Enterprises under the number 0678.616.849 (RPM Brussels, French-speaking section) distributes a wealth management platform in SaaS mode and provides recurring or on-time services, related to this platform.
The wealth management platform offers a clear and secure framework allowing its Users to have a global view on the family wealth of one or several subjects and to manage this wealth.
a. "Account" means the emplacement containing the patrimonial and family data of a group of Subjects with a family and/or patrimonial link between them.
b. "Agreement" means the agreement relating to the Subscriber's subscription to the Services offered by the Company, consisting of the General Terms of Sale and the Quote (and any subsequent Quote).
c. "Company" means the Belgian company Abbove SA, whose registered office is located at 1040 Etterbeek, Cours Saint-Michel 30/A (Belgium), and which is registered with the Banque Carrefour des Entreprises under number 0678.616.849 (RPM Brussels, French-speaking section).
d. "General Terms of Sale" means these general terms of sale are intended solely for persons who are not considered to be consumers within the meaning of Article I.1.2° of the Code of Economic Law.
f. The "party" is each of the Subscriber and the Company.
g. "Platform" means the digital wealth management platform, distributed in SaaS mode, by the Company in the framework of this Agreement.
h. "Quote" means the document or order form created by the Company following the Subscriber's decision to subscribe to one or more of the Services offered by the Company and forming part of the Agreement. The Quote contains all the details of the subscription, including the duration of the Subscription, the Services to which the Subscriber subscribes to and the price associated with these Services.
i. "Services" means all services, whether recurring or one-time, provided by the Company under the Agreement, as defined in the Quote.
j. "Recurring Services" means the access to the Platform and all recurring services related to the Platform (in the form of a package or any other form defined by the Company) and provided by the Company in return for payment of the fee(s) indicated in the Quote.
k. “One-Time Services” means any non-recurring service, not part of the Subscription, provided on an ad hoc basis by the Company according to the modalities and financial conditions defined in the Quote.
l. “Site” means the website https://www.abbove.com.
m. “Subscriber” means the legal person who subscribes to the Subscription offer issued by the Company and whose precise details are set out in the Quote.
n. "Subject" means the physical person (who can be a User or not) whose patrimonial data are introduced in the Platform.
o. "Subscription" means all the Recurring Services subscribed by the Subscriber for a specific period, in return for payment of the fee(s) indicated in the Quote.
p. "User" means any natural person who has the right to access the Platform as part of the Services subscribed by the Subscriber.
q. "Internal User" means any User who uses the Platform as an employee, agent or representative of the Subscriber.
r. "External User" means any User, other than an Internal User, who has a right of access to an Account created and/or managed by the Subscriber (e.g. a client of the Subscriber, a family member of the Subscriber's client, an external advisor of the Subscriber's client).
s. "User License": A non-exclusive, non-transferable and non-assignable license to use the Platform for the whole world.
2.1 The Company can make an offer to the Subscriber for the provision of Services, in the form of a Quote. The Quote will only constitute an offer ("aanbod") in accordance with applicable laws if it is made by the Company. The Quote will be valid for a period of thirty (30) calendar days from the date of its communication to the Subscriber unless otherwise stated in the offer. By agreeing to the Quote (for example, through a scanned handwritten signature or payment of the fees or other amounts set out in the Quote), the Subscriber unconditionally accepts the offer, which results in the creation of the Agreement and the obligation for the Subscriber to pay the fees and any other amounts set out in the Quote, regardless of the actual use by the Subscriber or by the Users of the Platform.
2.2 By accepting the Quote issued by the Company, the Subscriber unconditionally accepts the General Terms of Sale and irrevocably and unconditionally waives the application of its own general terms and conditions of purchase (or any other contractual provisions of the Subscriber which in the absence of this article 2.2 could be applicable to the contractual relationship between the Company and the Subscriber).
2.3 Information (e.g. prices, features, etc.) publicly displayed by the Company (e.g. on the Site or in information brochures) is provided for information purposes only. The publication of this information does not constitute an offer (“aanbod”) under the applicable laws.
3. Use of the Website and the Platform
4. License and intellectual property
4.1 When subscribing to a Subscription, the Subscriber receives from the Company a User License allowing him to use the Platform within the conditions set out in the Quote. The Subscriber acknowledges that the User License does not confer any other intellectual property right than the one granted in the Agreement.
4.2 The Subscriber determines the access rights of the Users to PaxFamilia. There are two types of access rights to the Platform: (i) a reading right (consultation, loading of documents and writing comments); and (ii) a writing right (reading right and right to modify the data of the Account).
4.3 The Subscriber is strictly prohibited from (i) modifying, reproducing, copying, borrowing, distributing all or part of the Platform outside the normal use of the Services; (ii) creating derivative works based in whole or in part on the elements present in the Platform outside the normal use of the Services; (iii) reverse engineer or assemble or in any other way attempt to find the source code of all or part of the Platform; (iv) sublicense or transfer in any manner whatsoever any rights in the Platform.
4.4 The content and structure of the Website and the Platform, including texts, images, photos, logos, software, database and any other information contained on the Website or on the Platform, are protected by one or more intellectual property rights (including copyright) which are and remain the exclusive property of the Company. It is forbidden to (re)use or reproduce them in any way (apart from the normal use of the Services), and to remove or adapt in any way the references to intellectual property rights of the Platform (trademarks, trade names, copyrights, etc.) without the express, written and prior permission of the Company.
5.1 The Subscription gives the Subscriber the right to benefit from the Recurring Services described in the Quote.
5.2 The Subscriber may also subscribe to One-Time Services, which will also be subject to a Quote.
5.3 The General Terms of Sale shall apply to any Service subscribed by the Subscriber.
6. Price, payment and activation
6.1 Recurring Services will be provided for a recurring fee, the amount of which is set forth in the Quote.
6.2 One-Time Services will be provided for a fee as set out in the Quote.
6.2 The Company shall issue invoices for the Services promptly after acceptance of the Quote by the Subscriber.
6.3 Unless otherwise agreed by the parties, the Subscriber shall pay the amounts due in full prior to the activation of the Subscription’ and the Company will activate the Subscription within five (5) working days of receipt of payment of the invoice by the Subscriber. Payments can be made online (by credit card or debit card) or by bank transfer to the bank account indicated on the invoice.
6.4 For each renewal of the Subscription or each new Service subscribed to, the payment of the amounts due will be made, at the Subscriber’s choice, by an online payment procedure (by credit card or debit card) or by bank transfer.
6.5 The Subscriber agrees to use the Services only within the limits or conditions set forth in the Quote. If these limits or conditions are exceeded, the Company shall be entitled to charge for the additional Services.
6.6 Amounts shown on the Site or communicated to the Subscriber should be understood to be in Euros and to exclude any applicable taxes (including VAT).
6.7 Each invoice specifies the due date for the payment of invoices which, in the absence of such mention, is set at thirty (30) calendar days from the date of the invoice. The Company reserves the right, with prior written notice and after allowing a reasonable period of time to the Subscriber, to suspend the Subscription (and the access of the Users to the Platform) if the Subscriber remains in default of paying one or more bills. The Company also reserves the right to charge reactivation fees and to apply late payment interest set at 1% per month (started) of delay and a collection fee in accordance with the law of August 2, 2002 concerning the fight against late payment in commercial transactions.
6.8 The Company reserves the right to adjust new prices at the beginning of each calendar year according to the formula below. The prices thus adjusted will be applicable to the Subscriber and for invoices issued after the adjustment: New price = Old price * [0.2 + 0.8 * (New Agoria Digital index / Base Agoria Digital index)] where (i) Old Price: the price set out in the Quote; (ii) New Agoria Digital index: the Agoria Digital index applicable in the month of the price adjustment; (iii) Agoria Digital Base Index: the Agoria Digital index applicable in the month of January preceding the entry in force of the Agreement; (iv) Agoria Index: the Agoria index for reference salaries which can be found at https://www.agoria.be/en/Reference-wages-synoptic-tables.
6.9 Without prejudice to Article 6.8, the Company reserves the right to change prices in accordance with Article 13.1.
7. Duration and termination
7.1 Unless otherwise agreed between the Parties, the Subscription is concluded for a period of one year and begins on the day of its activation. The Subscription will be automatically renewed on expiry, for successive periods equal to that originally determined by the Parties, unless the Subscriber informs the Company by registered letter with acknowledgement of receipt or by email to the following address: firstname.lastname@example.org at the latest three (3) months before the Subscription expiry date of his or her desire not to renew the Subscription.
7.2 The Company and the Subscriber may immediately terminate the Subscription upon written notice if: (i) the other party fails to comply with any of its obligations under the Agreement and has not sufficiently remedied such breach within fifteen (15) business days of receipt by such defaulting party of written notice of such breach; (ii) the other Party has become insolvent or has been declared bankrupt, dissolved or is being wound up, or where a decision has been made or judgement given ordering the winding up of that Party or a liquidator or administrator has been appointed to exercise all or part of the rights of that Party or to wind up that Party under any applicable law.
7.3 The Company may immediately terminate the Subscription by giving written notice in the event of a serious breach by the Subscriber of its obligations under the Agreement and in particular in the event of failure by the Subscriber to comply with its obligations under Articles 4.1 and 4.3.
7.4 Upon termination of a Subscription, for whatever reason, the User Licence and all User access rights shall automatically terminate and the Agreement shall automatically terminate (except for those provisions of the Terms intended to survive termination of the Agreement, including (without limitation) sections 4, 7.4, 8, 9, 10 and 11).
8.1 In the course of the performance of the Agreement, the parties may have access to confidential information of the other party. The parties therefore undertake to maintain the confidentiality of such information with the same care as they take to maintain their own confidential information and not to communicate or disclose it to third parties, except with the prior written consent of the other party or as may be required by law. The parties agree to take all reasonable steps to ensure that confidential information is not disclosed to their employees or contractors in breach of these General Terms of Sale. The terms of this obligation shall apply for the duration of the Agreement and for as long as the relevant confidential information has not been made public by the Company and for a minimum period of five (5) years after the end of the Agreement (for whatever reason).
8.2 At the express request of the party providing the confidential information, the receiving party shall return such information or destroy it and all copies and documents and media containing such information.
8.3 The party receiving the confidential information will not be bound by confidentiality for any information that is:
9. Protection of personal data
9.1 The Subscriber acknowledges and agrees that the Company will process personal data about him/her, about the Users and/or about the Subjects in the context of the execution of the Agreement.
9.2 The Company will process such personal data in accordance with applicable data protection legislation (including the General Data Protection Regulation 2016/679 (the "GDPR")).
9.4 To the extent that the Company processes personal data relating to the Subscriber, Users and/or Subjects in its capacity as a processor (as defined in Article 4.8 of the GDPR), the Company undertakes to process such personal data in accordance with Annex 1: Data Processing Addendum.
10. Exclusion of warranty
10.1 The Services are provided "as is". To the maximum extent permitted by law, the Company excludes all warranties (express or implied) in relation to the Services, including any warranty that the Services will meet the Subscriber's expectations or be available on an uninterrupted, secure or correct basis. The Subscriber acknowledges that the Services provided by the Company must be considered as obligations of means.
10.2 The Company does not guarantee the quality, accuracy, timeliness, truthfulness, completeness or reliability of the content of the Platform. The Company is also not responsible for any interruptions in the networks (cable, internet or any other relevant network), hardware, software and other problems related to the operation of the network as well as errors in the input or processing of certain data, except in case of fraud or intentional fault attributed to the Company.
11. Responsibility of the Company
11.1 The Company shall not incur any liability other than that expressly set out in the General Terms of Sale, to the extent permitted by applicable law.
11.2 To the extent permitted by applicable law, the Company shall only be liable to the Subscriber for death or personal injury caused by the Company's willful misconduct or gross negligence or for any damage caused by fraud or willful misconduct of the Company or any person acting for the Company in connection with the Agreement.
11.3 The Company shall only be liable for direct damages and shall in no event be liable for indirect damages suffered by the Subscriber, by Users or by third parties arising out of the performance of the Agreement such as (but not limited to) acts, omissions and negligence of other Users or loss of income, loss of profits, loss or compromise of data, loss of customers, loss of turnover, loss of profit or increase in overheads, whether or not the Company has been advised of the possibility of such damage.
11.4 The Company shall not be liable in any way in the event of force majeure, i.e., situations not attributable to the Company that make the performance of its obligations under the Agreement reasonably impossible, including (without limitation) the following situations natural disasters, revolts, wars and military operations, national or local emergencies, storms, acts or omissions of authorities, economic conflicts of a similar nature, actions of workers, fire, telecommunication failures, third party software bugs, as well as any act or negligence of persons or entities beyond the Company's reasonable control.
11.5 Except in the case of fraud, wilful misconduct or fraud, the Company's total liability to the Subscriber under the Agreement shall not exceed, for each loss, the amount of the periodic fee paid by the Subscriber during the 12 months preceding the occurrence of the loss.
The parties shall at their own expense at all times be covered by professional indemnity insurance covering all damages that may arise in connection with the Agreement. Each party shall provide, upon request of the other, a copy of its insurance certificates or other documentation proving that it is covered by such insurance.
13. Miscellaneous provisions
13.1 The Company reserves the right to amend the General Terms of Sale at any time. The Company will notify the Subscriber in writing (for example, by sending an email to the email address referenced on the invoice) of the changes that the Company intends to make. Unless the Subscriber expressly objects in writing within thirty (30) calendar days of the notification, the Subscriber will be deemed to have tacitly accepted the said changes, which will automatically apply to the parties on expiry of the said thirty (30) day period.
13.2 The Company reserves the right to adapt the Website or The Platform or to temporarily suspend access to The Platform (in whole or in part), without incurring any liability in this regard.
13.3 The Subscriber may not assign or otherwise transfer to a third party all or part of its rights and obligations under the Agreement without the prior written consent of the Company.
13.4 The Subscriber acknowledges that the Company does not provide through the Platform investment services or activities as defined by the applicable law or any form of portfolio management or investment advice. The Subscriber undertakes to inform the Internal Users of the fact that they remain responsible towards the External Users for the provision of investment services or activities as defined by the applicable law.
13.5 No action, delay, inertia or negligence on the part of either party other than an express written waiver shall be construed as a waiver of any other right or provision of the General Terms of Sale.
13.6 If any provision (or part thereof) of the General Terms of Sale is unenforceable or contradicts a mandatory provision of law, the validity and enforceability of the remaining provisions (or parts thereof) of the General Terms of Sale shall not be affected. In this case, the unenforceable part or the illegal provision shall be replaced by an enforceable and legal provision that comes as close as possible to the purpose and intention of the original provision.
14. Applicable law and competent courts
14.1 The Agreement is governed by Belgian law.
14.2 Any dispute or difference relating to, or connected with, the formation, interpretation, performance or termination of the Agreement shall be submitted to the exclusive jurisdiction of the Business Court of Brussels (French-speaking section).
Annex 1: Data processing Annex
1.1 In this Annex:
a. "Annex" means this Data Processing Annex;
b. "Personal Data" means personal data which will be processed by the Company or any of the Approved Processors under or in connection with the Agreement, excluding personal data which would be processed by the Company as a controller. For the purposes of this definition, the terms "processing", "personal data", "processor" and "controller" shall have the same meanings as given to those terms under the Applicable Data Protection Legislation. In particular, the Company will process the following categories of Personal Data:
c. "Security Incident" means a breach of security resulting in the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data;
d. "Applicable Data Protection Legislation" means any law, regulation or bylaw applicable to the processing of Personal Data, as applicable to the Subscriber and/or the Company, including the GDPR and the Law of 30 July 2018 on the protection of individuals with regard to the processing of personal data, in each case, as in force and applicable, and, where applicable, as amended, supplemented or replaced from time to time ;
e. "Third country" means a country outside the European Economic Area;
f. "Data Subject" means the person identified or identifiable through one or more Personal Data. The categories of Data Subjects whose Personal Data will be processed are the Subjects;
g. "Approved Subcontractors" means subcontractors who have been approved by the Contractor in accordance with clause 5.
2. Compliance with Applicable Data Protection Legislation
2.1 The Subscriber and the Company shall at all times comply with their obligations under the Applicable Data Protection Legislation.
2.2 The Subscriber instructs the Company to process the Personal Data in order to provide the Services under the Agreement and authorises the Company to give equivalent instructions to Approved Subcontractors on behalf of the Subscriber. If, in the reasonable opinion of the Company, compliance with the Subscriber's instructions would constitute a breach of any applicable legal provision, the Company undertakes to inform the Subscriber immediately.
2.3 The Company will only process Subscriber's Personal Data for: (i) processing necessary to provide the Service in accordance with the Agreement; (ii) processing initiated by Subscriber in connection with Subscriber's use of the Service; and (iii) processing to comply with any other reasonable instructions provided by Subscriber (e.g., by email or support tickets) that are consistent with the terms of the Agreement.
3. Security and privacy
3.1 The Company undertakes to the Subscriber to treat all Personal Data in strict confidence. Unless otherwise agreed in writing by the Subscriber, the Company will not disclose Personal Data to any person other than (i) its employees, Approved Subcontractors and employees of Approved Subcontractors to whom disclosure is necessary for the provision of the Services under, or in connection with, the Agreement; or (ii) any jurisdiction, governmental or other regulatory authority having jurisdiction, to the extent required pursuant to an applicable legal requirement.
3.2 The Company will maintain throughout the duration of the Agreement appropriate technical and organisational measures to ensure the security, confidentiality and integrity of Personal Data. More specifically, the Company will take appropriate measures to prevent the occurrence of a Security Incident. The Company undertakes in particular to (i) maintain a secure access to The Platform through a two-factor authentication or any other authentication system that meets the applicable security standards; and (ii) encrypt Personal Data (in transit and/or on disk) to the extent provided in accordance with applicable security standards.
4. Security Incident Reporting
4.1 The Company will notify the Subscriber as soon as possible after becoming aware of the occurrence of a Security Incident.
4.2 In the event of a Security Incident, the Company will provide the Subscriber, to the extent available, with the following information: (i) the nature of the Security Incident including, if possible, the categories and approximate number of Affected Persons and the categories and approximate number of Personal Data records affected; (ii) the name and contact details of the Data Protection Officer or other point of contact from whom further information may be obtained (iii) the likely consequences of the Security Incident; and (iv) the steps taken or proposed to be taken by the Company to remedy the Security Incident, including, where appropriate, steps to mitigate any adverse consequences.
4.3 The Company and the Subscriber will coordinate to investigate any Security Incident.
5.1 The Subscriber gives its general written consent for the processing of Personal Data by (second-tier) subcontractors and in particular for the subcontractors listed below, which are to be considered as "Approved Subcontractors" for the purposes of this Annex:
5.2 If the Company intends to subcontract all or part of the processing of Personal Data to subcontractors other than Approved Subcontractors, the Company will inform the Subscriber in advance of its intention to recruit another subcontractor so that the Subscriber has the opportunity to raise objections. If the Subscriber does not object within a reasonable period of time, and at least within fifteen (15) calendar days, the Subscriber shall be deemed to have tacitly approved such other subcontractor who shall be deemed an Approved Subcontractor for the purposes of this Annex.
6. Transfers of Personal Data to Third Countries
The Company will not transfer Personal Data to a Third Country unless: (i) there has been an adequacy decision made by the European Commission in respect of that Third Country in accordance with the Applicable Data Protection Legislation and the transfer falls within the scope of that adequacy decision or (ii) the Subscriber and/or the Company has entered into an agreement with the entity located in a Third Country containing the standard contractual clauses as approved by the European Commission pursuant to its decision 2021/914 of 4 June 2021 (“EU SCCs”) or by another competent public authority in accordance with the Applicable Data Protection Legislation. The Company will ensure that it implements all appropriate measures to ensure a substantially equivalent level of protection for Personal Data in the Third Country as compared to their level of protection in the European Economic Area. The Company will terminate any transfer in respect of which a substantially equivalent level of protection of Personal Data cannot be guaranteed.
7.1 The Subscriber may request in writing, and the Company shall permit the Subscriber to obtain copies of any non-confidential information that is reasonably necessary to verify the Company's compliance with its obligations under this Annex. The Company undertakes to provide, to the best of its knowledge, the information requested within a reasonable time, taking into account the amount and complexity of the information requested.
7.2 To the extent that the Subscriber has not obtained the necessary information in accordance with Article 7.1, the Subscriber has the right to request that audits be carried out on the Company, including inspections, by the Subscriber itself or by another auditor appointed by it, and that the Company contribute to such audits. Such a request must be provided in writing to the Company at least sixty (60) calendar days before the audit takes place. The audit shall be conducted during normal business hours and may not affect the day-to-day operations of the Society. The audit will not take longer or require more resources than necessary to obtain the information requested. The Subscriber and or its appointed auditor will submit to reasonable specific confidentiality obligations in advance in respect of the requested information. Where applicable, the auditor appointed by the Subscriber may not be a direct competitor of the Company. The Subscriber and the Company will agree on a written plan of action containing the exact scope of the information requested and the information systems to be audited. The Subscriber will bear all costs and expenses associated with the audit (including costs and expenses incurred by the Company in connection with the Company's assistance with the audit).
The Company will cooperate fully with the Subscriber, and at the Subscriber's expense, in (i) following up on requests made by Data Subjects to exercise their rights; and (ii) conducting data protection impact assessments in connection with the provision of the Services.
This Schedule shall remain in force for as long as the Company provides the Services under the Agreement.
10. Return/Destruction of Personal Data
10.1 Within a maximum of three (3) months after the expiration or termination of the Agreement, the Company will, at the Subscriber's option: (i) return to the Subscriber, in a commonly used electronic format, all Personal Data that, as of the date of expiration or termination, is in the Company's possession; and/or (ii) destroy or purge from its systems all Personal Data that, as of the date of expiration or termination, is in the Company's possession. This obligation does not apply, however, to Personal Data that the Company has archived on its backup systems, which Personal Data is securely isolated, protected from further processing and automatically deleted within a maximum of 12 months in accordance with the Company's backup policy.
10.2 The provisions of the preceding paragraph shall not apply to Personal Data that the Company is required by applicable law to retain after the termination or expiration of the Agreement, in which case the provisions of this Schedule shall survive the termination or expiration of the Agreement and shall continue to apply to such Personal Data and the Company shall discharge its obligation under the preceding paragraph once the Company is no longer required to retain such Personal Data.