Please read carefully before accessing/ downloading Smart Services Data from DCP Smart Services (herein after “Smart Services/ DCP Smart Services).

These are End User License Terms of DCP SmartServices (‘Terms / Agreement’). These Terms describe the

Customer’s terms of use of and responsibilities when accessing DCP SmartServices. By indicating the Customer’s acceptance to these Terms or enabling or the using the link provided in the covering email, the Customer agrees that:

 

-    Any person agreeing to these Terms on the Customer’s behalf has the Customer’s authority to do so; and

-    Any person agreeing to these Terms on the Customer’s behalf shall bind the Customer to these Terms accordingly.

 

These Terms are independent of any other terms the Customer may have with AXA XL or any Affiliate of AXA XL and prevail for the purposes of the use of pilot testing of the DCP Smart Service, to the extent of any inconsistency with any other terms.

Pilot Testing DCP Smart Services is a digital platform developed to assist Customer with managing a variety of risks and general mitigation actions related to such risks. This platform is owned, operated, and controlled by AXA XL. AXA XL is making DCP Smart Services available on a limited release to certain designated Customers participating in this pilot testing. Pilot Testing is intended for evaluation purposes only and not generally available. The website may contain bugs and errors. AXA XL reserves the right to modify or terminate Customer access on short notice.

Pursuant to the Terms herein, AXA XL agrees to allow the Customer to access, test and evaluate the DCP Smart Services.

In consideration of the covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the AXA XL and the Customer agree to the terms and conditions contained in this Agreement.

License – AXA XL grants Customer a revocable, limited license to evaluate, review and test use DCP Smart Services for internal business purposes only subject to paragraph 1 license restrictions set out below, for a term of30 days.

AXA XL may update the license terms at any time on notice to the Customer.

 

1. License Restrictions – Except as expressly set out in this Agreement or as permitted by any local law, the Customer undertakes:

(i)     not to copy, lease, resell, distribute, sublicense, assign or transfer, translate, reproduce, merge, adapt, vary or modify Smart Service, Smart Service Data. The Customer may make backup copies of the Smart Service for its lawful use;

(ii)     Not to modify, adapt, disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the DCP Smart Services / software;

(iii)     To keep all copies of the Smart Service Data and DCP Smart Services access link (including any user registration details and passwords) secure and confidential in accordance with section 4 below; Not to provide or otherwise make available the access to DCP Smart Services in whole or in part, in any form to any person other than the Customer’s employees without prior written consent from AXA XL;

(iv)     Not to use Smart Services Data for insurance underwriting, reinsurance use, insurance brokerage and ESG / sustainability reporting; or

(v)     Not make commercial use of Smart Service Data for reselling or for the provision of consulting services, or ESG and other sustainability reporting.

1 B Specific provisions related to the pilot testing.

The Customer acknowledges and accepts the following:

(i)     DCP Smart Service includes third party data sources. Smart Service Data is developed using information compiled and provided by third parties which is not guaranteed as to accuracy, currency, completeness, reliability or otherwise.

(ii)      The content on DCP Smart Service is provided for general information purposes only. It is not intended to amount to advice and shall not be regarded as an offer to solicit any business.

(iii)     AXA XL may update the terms of this Agreement at any time on notice to the Customer. The Customer’s continued use of DCP Smart Service or Smart Service Data following the deemed receipt of notice shall constitute the Customer’s acceptance of this Agreement. If the Customer does not wish to accept the terms of the Licence (as varied) the Customer must immediately stop using and accessing DCP Smart Service on the deemed receipt and service of the notice.

(iv)     Upon release of a new version or patch by AXA XL of the DCP Smart Service, Customer shall install such new version or patch as soon as reasonably practicable after receipt.

 

2.     Hyperlinks

Where DCP Smart Service contains hyperlinks to other sites and resources provided by third parties, these hyperlinks are provided for the Customer’s information only. Such hyperlinks shall not be interpreted as approval or endorsement by AXA XL of those linked websites or content/information the Customer may obtain from them. Some of these hyperlinks may direct the Customer away from this website. AXA XL cannot guarantee that these hyperlinks will be functional or accurate at the time of the Customer’s access. Third-party websites accessed through these hyperlinks are developed and maintained by person(s) over whom AXA XL has no control. AXA XL is not able and do not monitor these linked websites. AXA XL assumes no responsibility for the content of any linked website or resources referenced by any hyperlink or otherwise.

 

3.     Feedback

3.1 The Customer agrees to provide free, ongoing feedback to AXA XL regarding the DCP Smart Service. AXA XL will be conducting feedback sessions with Customers at mutually agreed times and dates.

3.2 AXA XL will own all right, title and interest in any ideas, suggestions, requests, recommendations, feedback or other information provided by Customer relating to features, functionality or operation of the DCP Smart Service (“Feedback”). Customer hereby assigns its right, title and interest in such ideas, suggestions, requests, recommendations, or feedback to Customer upon the creation of such intellectual property rights. AXA XL has no obligation to use feedback.

 

4.     Confidentiality

4.1 Confidential Information. Subject to Section 4.2, each Party shall treat as Confidential Information; (i) the terms and conditions of this Agreement (excluding the existence of this Agreement), and (ii) all information relating to or obtained from the other Party which it may receive or have access to during or prior to the performance of this Agreement (a) that is marked as confidential or (b) that it should reasonably know, by its nature or the manner of its disclosure, to be confidential. Confidential Information of AXA XL shall specifically include the link/login details of DCP Smart Service, all Smart Service Data, Feedback and all trade secrets and other non-public information, materials, data, know-how, research, systems, plans and procedures of or relating to AXA XL, including business plans and strategies, pricing and other financial information, marketing plans, lists of existing and prospective suppliers, contractual arrangements, employee information, and proprietary technologies and processes, software programs, systems, source code, specifications, inventions, designs, developments, and databases. Notwithstanding the foregoing, Confidential Information will not include information (i) that the receiving Party can demonstrate is independently developed by it without use of any confidential or proprietary information, materials or data of the other Party; (ii) that the receiving Party can demonstrate was lawfully received free of restriction from another source with the right to furnish such information, without restriction or subject to restrictions in respect of which it has conformed; (iii) that is or becomes generally available to the public other than as a result of the unauthorized direct or indirect acts of the receiving Party (or in the case of Vendor, any Personnel or any Representatives of Vendor or Personnel); or (iv) which the receiving Party can demonstrate was, at the time of disclosure, rightfully known to it free of restriction.

4.2 Non-Disclosure and Non-Use. Neither Party shall, or shall permit any other persons to, (i) use Confidential Information for any purpose other than the performance of such Party’s obligations or exercise of its rights under this Agreement, or (ii) divulge or permit access to such Confidential Information, without the other Party’s written consent, to anyone other than those representatives of such Party (a) who are subject to nondisclosure obligations at least as protective of such Confidential Information as the provisions set forth herein, and (b) to whom such disclosure is reasonably necessary to facilitate such Party’s performance of this Agreement. Notwithstanding the foregoing, in the event disclosure of Confidential Information is mandated, protected or requested by applicable law, rule or regulation, or by an order of a court or governmental or law enforcement agency or other authority, each of competent jurisdiction, then, (1) if not so prohibited or protected by a regulatory, law enforcement or other governmental authority or an order of a court of competent jurisdiction, the Party required to disclose such Confidential Information shall promptly notify the other Party of such requirement, (2) if so requested by such other Party, shall use good faith efforts, in consultation with the other Party, to secure confidential treatment of the Confidential Information to be so disclosed, and (3) the Party required to disclose such Confidential Information shall furnish only that portion of the Confidential Information it is legally required to disclose.

4.3 The Customer expressly acknowledges that the obligations of confidentiality in the Agreement do not preclude AXA XL from sharing information concerning and including the Agreement (including but not limited to any statements of work, work orders or similar documents agreed between the parties) with its Affiliates, its service providers and professional advisors.

4.4 AXA XL may (i) compile statistical and other information related to the performance, operation and use of DCP Smart Service, and (ii) use data from the DCP Smart Service in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes.

4.5 The Customer hereby consents to AXA XL disclosing the existence of this Agreement, or otherwise use the Customer’s names or logos in relation to this Agreement, in any of its advertising or publicity material.

4.6 The Customer shall notify the Supplier as soon as it becomes aware of any unauthorized use of the DCP Smart Service by any person or any breach of Section 1(iii).

 

5     Intellectual Property Rights

All intellectual property rights (including, without limitation, copyrights, database rights, patents, trademarks, designs and know-how) on DCP Smart Service and in the content published thereon including Smart Service Data, unless otherwise indicated, are owned either by AXA XL or its related, affiliated and subsidiary companies or made available to any of them under licence by third party licensor(s). Unless indicated otherwise:

(i)     DCP Smart Service, Smart Service Data and all content published thereon is protected by copyright laws and treaties around the world. All such rights are reserved;

(ii)     all trademarks and logos displayed on this website are owned by AXA, AXA companies and/or the relevant licensors and may be registered in jurisdictions across the world;

(iii)     any use or reproduction of these trademarks and logos is prohibited.

Except as licensed under sections 1 and 2 above AXA XL does not grant to the Customer or its personnel any rights or licenses to any DCP Smart Service or Smart Service Data provided to the Customer for the purposes of pilot testing DCP Smart Service pursuant to this Agreement.Each party remains the owner of the intellectual property rights to data they created, owned, or produced prior to entering into this Agreement.

 

6     Disclaimers

THE MATERIALS, INFORMATION AND CONTENT ON DCP SMART SERVICE ARE PROVIDED ON AN “AS IS” BASIS. AXA XL :

(i)     MAKE NO REPRESENTATIONS, GUARANTEES OR WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, AS TO THE ACCURANCY COMPLETENESS AND/OR RELIABILITY OF THE MATERIALS, INFORMATION OR CONTENT INCLUDED OR MADE AVAILABLE ON DCP SMART SERVICE OR THAT THEY ARE UP-TO-DATE OR FIT FOR PURPOSE;

(ii)     do not warrant that DCP Smart Service shall be provided on a timely, uninterrupted or error-free basis, that defects or errors shall be corrected, or that this website, its server or software that makes it available are non-infringing, or free of viruses or other harmful components.

(i)     Note that the Smart Service Data deals with the probabilities of natural hazards which are highly uncertain and accordingly AXA XL cannot and does not represent, warrant or guarantee the accuracy, currency, completeness or reliability of the Smart Service Data, it’s indicators, estimates or outputs.

(iv)     AXA XL cannot and does not represent or provide any warranty, guarantee or other assurance that Smart Service Data will meet the present of future requirements or uses of Customer or any third party.

(v)     The Customer acknowledges that any open-source software provided by AXA XL is provided "as is" and expressly subject to the disclaimer in sub-Clause (vi) below.

(vi)     All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

 

7     Limitation of Liability

7.1     The Customer acknowledges that the DCP Smart Service has not been developed to meet the Customer’s individual requirements, including any particular cybersecurity requirements the Customer might be subject to under law or otherwise, and therefore AXA XL is not responsible to ensure that functions of DCP Smart Service meet the Customer’s requirements.

7.2     AXA XL only provides the DCP Smart Service for internal use by the Customer for evaluation purposes and the Customer agrees not to use the DCP Smart Service for any other purposes (including but not limited to, re-sale).

7.3     IN NO EVENT SHALL EITHER THE CUSTOMER OR AXA XL BE LIABLE FOR, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH THE TERMS FOR:

(i)     LOSS OF PROFITS, SALES, BUSINESS, OR REVENUE;

(ii)     BUSINESS INTERRUPTION;

(iii)     LOSS OF ANTICIPATED SAVINGS;

(iv)     WASTED EXPENDITURE;

(v)     LOSS OR CORRUPTION OF DATA OR INFORMATION;

(vi)     LOSS OF BUSINESS OPPORTUNITY, GOODWILL OR REPUTATION WHETHER DIRECT OR INDIRECT;

(vii)     ANY THIRD PARTY IP INFRINGEMENT CLAIMS

(viii)    ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS, DAMAGE, CHARGES OR EXPENSES.

7.4     The total liability of AXA XL, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed a sum equal to [£100 (one hundred British pounds sterling)].

7.5     Nothing in this Clause 7 shall limit AXA XL’s liability for damages arising out of fraud, negligence (to the extent giving rise to liability for personal injury or death), or any other liability which cannot be limited by law.

 

8. Term and Termination

8.1     Duration

This Agreement shall remain in effect for a period of 30 (thirty) days from the date of acceptance of these Terms by the Customer (the “Term”). The Term may be extended only by mutual agreement between the Customer and AXA XL.

8.2     Survival

The Parties agree that all the rights and obligations, which by their nature survive the termination of this Agreement, shall remain in full force during and after the term of this Agreement.

8.3     Termination and Suspension

(i) AXA XL may terminate this Agreement, or suspend access to DCP Smart Service, immediately by written notice to the Customer if the Customer commits a material or persistent breach of this Licence which the Customer fails to remedy (if remediable) within 2 days after the service of written notice requiring the Customer to do so.

(ii) AXA XL may suspend Customer's right to access or use any portion or all of the DCP Smart Service immediately upon notice to Customer if AXA XL determines that Customer's use of DCP Smart Service (i) poses a security risk to DCP Smart Service, (b) may adversely impact DCP Smart Service, (c) may subject AXA XL, its affiliates, or any third party to any liability, or (d) may be fraudulent.

8.4     On termination for any reason:

(i)     all rights and licenses granted to the Customer under this Agreement shall cease;

(ii)     the Customer must immediately cease all activities authorised by this Agreement; and

(iii)     the Customer must immediately and permanently delete or remove the DCP Smart Service, Smart Service Data from all computer equipment in the Customer’s possession, and immediately destroy or return to us (at AXA XL’s option) all copies of the DCP Smart Service links and Smart Service Data then in the Customer’s possession, custody or control and, in the case of destruction, certify to AXA XL that the Customer has done so.

 

9.     Governing Law and Jurisdiction

9.1     This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

9.2     Each party irrevocably agrees, for the sole benefit of AXA XL that, subject as provided below, the courts of England and Wales shall have exclusive jurisdiction over any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation. Nothing in this clause shall limit the right of AXA XL to take proceedings against the Customer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.

 

10.     Other

10.1     AXA XL may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this Agreement, provided it gives written notice to the Customer.

10.2     A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.

 

Definitions

 

“Affiliates” means any entity that is directly or indirectly controlling, controlled by or under common control with a Party, and the directors, officers, employees and agents of all of them, when acting in their corporate capacities. “Control”, for the purpose of this definition, means to own, directly or indirectly, over 50% of voting shares of the applicable company.

“AXA XL” means XL Catlin Services SE and its Affiliates.

“Customer” means customers participating in this phase of DCP Smart Service Pilot testing pursuant to these terms and conditions.

“Confidential Information” means non-public, sensitive information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located): the fact that the Parties have entered into this Agreement; information relating to the business, customers, products, presentations, marketing materials, affairs and finances of DCP; trade secrets including, without limitation, technical data and know-how relating to the business of Customer or its Affiliates or any of its or their suppliers, customers, agents, distributors, shareholders, management or business contacts; and information that AXA XL creates, develops, receives or obtains in connection with deriving Smart Service Data, whether or not such information (if in anything other than oral form) is marked confidential.

“DCP” means DCP SAS, Digital Commercial Platform Inc. and its Affiliates.

“DCP Smart Service” means the Digital platform to assist with identifying and managing various risks

“Smart Service Data” means data, reports, documents, insights articles, including but not limited to risk scores on Customer’s locations displayed as a portfolio dashboard for on-screen risk assessment Customers can generate and download PDF reports of the risk assessment results from Smart Service