These General Services Provisions, hereafter “the Agreement”, define the general contractual framework of relations between MARSH and its Client (here after “the Parties”).
The Client has decided to use the services of an insurance professional able to supply it with the traditional services of an insurance broker.
The Client has appointed MARSH to provide services as defined hereafter, related to the placing and the management of insurance contracts (hereafter “Contract(s)”) that the client has decided to assign to MARSH, and to Client related claims.
MARSH is an insurance brokerage company governed by French law and governed by the French Insurance Code. MARSH is registered under number: 07.001.037, with the French Organisation for the Registration of Insurance Brokers (ORIAS), (orias.fr).
MARSH is controlled by the French Prudential Control and Resolution Authority ACPR (“Autorité de Contrôle Prudentiel et de Résolution”), located at 4 place de Budapest, CS92459, 75436 Paris Cedex 09 (www.acpr.banque-france.fr).
MARSH holds a financial guarantee and civil and professional liability insurance in accordance with articles L512-6 and L512-7 of the French Insurance Code.
MARSH warrants that it is authorized to offer insurance operations and undertakes to meet all the conditions required by laws and regulations in respect of the exercise of its profession (in particular honourability, professional capacity, civil liability insurance and financial coverage), to be registered with ORIAS to renew its registration annually, and to update it whenever necessary.
MARSH, undertakes, for the duration of the Agreement, to meet these requirements at all times and to produce the required documents each year to certify its approval and the renewal of the civil and professional liability insurance and financial guarantee, in application of articles L512-6 and L512-7 of the French Insurance Code.
MARSH also undertakes to ensure that its personnel who provides insurance operations meets the conditions of honourability and professional capacity required by the regulation and to comply with the requirements for continuous training and professional development, in order to maintain an adequate level of performance and comply with applicable regulations.
MARSH operates in compliance with the provisions contained in article L521-1, III. of the French Insurance Code and makes a recommendation service based on an impartial and personalised analysis of the market.
There is no direct ownership relationship or capitalistic link between MARSH and an insurance company. MARSH certifies that it not compelled by any exclusivity obligation with one or more insurance companies and that it did not record more than one-third of its turnover from distribution activities with any of them in the previous year.
Article 1. APPLICABLE LAW
The Agreement is subject to French law.
Article 2. LEGISLATION AND REGULATIONS - COMMERCIAL ETHICS
2.1. The Parties agree to execute the Agreement in good faith and warrant that they comply with the applicable laws, rules and regulations, the general laws and the insurance specific applicable laws and any future amendments or new regulation after the Agreement inception date. Both Parties declare that they are in good standing (and will remain in good standing) with respect to the fiscal and social laws and regulations and shall bear all the consequences of any failure to comply with their legal obligations.
The Client therefore acknowledges that MARSH is committed to compliance with regulations and with commercial ethics in general, the regulations against fight money laundering and terrorism financing, regulations on trade sanctions and anti-corruption regulations, and in particular the French law “Sapin 2”, the FCPA (Foreign Corruption Practices Act) and the UK Bribery Act.
The Client acknowledges that compliance with the above regulations and obligations constitutes a substantive condition for signing an agreement with MARSH. MARSH expects the Client for itself and all its partners, to comply with the applicable laws and regulations and with the related MARSH policies or to similar policies. MARSH also expects that the behaviour of the Client cannot damage MARSH’s reputation or expose MARSH to penalties.
MARSH's “The Greater Good” Code of Conduct may be consulted on sur https://integrity.mmc.com/the-greater-good.
2.2. As part of MARSH negotiations with insurers on behalf of the Client, MARSH may on occasion be able to obtain more favorable terms and conditions for the Client’s placement by providing insurers with certain types of information. Where MARSH identifies an opportunity to increase the Client’s interests, the Client allows MARSH to do the following:
• at the outset of the negotiations, to provide insurers with the terms of the expiring policy, including pricing, and/or a pricing objective for the Client’s placement, and
• during negotiations, to provide one or more insurers with the terms of a quote received from another insurer, where in MARSH’s judgement it should improve terms applicable to the Client, and
• at the end of the negotiations, to provide one or more insurers with an opportunity to submit an improved quote after all other quotes have been received.
2.3. The insurance analysis done by MARSH comply with law n°. 90-1259 of 31.12.1990, which states that legal activity can only be accessory to the main activity of MARSH; it also does not authorize MARSH to act under foreign law in any case, either directly or through its network. It is therefore the Client’s liability to obtain a more thorough review than this first analysis from his usual legal and fiscal advisers.
Article 3. ANTI-MONEY LAUNDERING, MEASURES AGAINST TERRORISM FINANCING AND CORRUPTION
3.1. Through the common will to take part in the fight against money laundering and terrorism financing under the applicable regulations (articles L561-1 and subsequent of the French Monetary and Financial Code), the Client agrees to comply, at first request, with documents requests that MARSH would be obliged to submit in this context and to provide the required documents. For example, this includes a copy of the identity document of the authorized representative signing the Agreement and proof of authority to represent his company, as well as any other document whose transmission is necessary to identify the Client.
3.2. Each Party declares and warrants to the other Party at any time during the term of the Agreement:
• that it is aware of all the legal provisions applicable to anti-corruption.
• it will ensure that no particular act of corruption will be committed for the benefit of a private / public / public official; and / or to incite it to perform its duties dishonestly or in breach of its professional, legal and / or contractual obligations and / or to obtain or maintain a contract in an undue or dishonest manner.
• that it has put in place appropriate rules, systems, procedures, and controls to prevent the commission of corruption acts by its personal and subcontractors and has ensured that any evidence or suspicion of the commission of an act of corruption will be thoroughly investigated and treated with due diligence.
Article 4. ECONOMIC AND TRADE SANCTIONS
MARSH is unable to provide insurance or reinsurance broking, risk consulting, claims management or other services or provide any benefit to the extent that the provision of such services or assistance would violate applicable law or expose MARSH or its parent company, in the USA, to any sanction, prohibition or restriction in virtue of UN Security Council Resolutions or any trade or economic sanctions laws or regulations.
Article 5. TRANSPARENCY OF REMMUNERATION
MARSH is committed to disclosing its roles and interests in insurance transactions, including the type of compensation it may receive. MARSH may receive compensation through one or a combination of the methods listed below. The method of remuneration may differ in each country.
• Fees from clients, as agreed in writing.
• Where authorized by local law, MARSH may receive from insurers:
1) Different types of commissions.
2) Remuneration for consultancy services.
3) Compensation for administrative or other services.
For more information on MARSH’s remuneration, please visit our dedicated web page: https://www.marsh.com/fr/fr/about/about-marsh/transparency-and-disclosure.html.
Article 6. USE OF CLIENT INFORMATION
6.1. Data Analytics: MARSH may include, on a de-identified basis, information relating to its clients’ insurance programs in benchmarking, modelling and other analytics. MARSH offers an array of analytics capabilities to clients, insurers and others. For clients, these offers include benchmarking databases, analytics and modelling tools, surveys and other compilations of information, which are designed to help clients more effectively assess their risks, make decisions that are more informed and construct insurance programs and other risk mitigation strategies. MARSH or its affiliates may, in some instances, receive compensation for its analytics services from clients, insurers and others.
6.2. MarketConnect: MarketConnect is MARSH’s industry leading proprietary technology suite. It enables MARSH to assist insurers in their efforts to improve their performance and create high-level solutions for our clients. Within MarketConnect, Market Match is a proactive tool that allows insurers to identify business opportunities in advance of renewals, enabling them to be considered for risks for which they historically had not been considered. In MarketMatch, client names and certain other information are provided to insurers when viewing upcoming renewals that meet their stated risk appetite. MarketConnect is part of MARSH’s insurer consulting offering for which MARSH receives compensation from insurers.
Article 7. EFFECTIVE DATE AND DURATION OF THE AGREEMENT
The Agreement incepts on the day on which the Client appoints MARSH as its insurance broker and terminates when the appointment of MARSH is terminated by the Client.
The Agreement can be terminated as follows:
• in the event of insolvency proceedings of one of the Parties, under the terms set out by the French Commercial Code.
• in the event of failure by one of the Parties to respect its obligations, within thirty calendar days after notice, sent by registered letter with acknowledgement of receipt, remained unanswered. The Agreement will, however, automatically be terminated in the event of a breach of anti money laundering, terrorism financing and corruption ethical rules.
At the end of the Agreement, payment of services provided and reimbursement of committed expenditure shall remain due by the Client to MARSH.
Article 8. MARSH STANDARD SERVICES
MARSH provides the Client with a range of services (hereafter the “Assignment”) as defined hereunder, related to the placement and the management of the Contracts that the Client decided to assign to MARSH and to related claims.
It is specified that the risks involved only relate to the activities conducted by the Client. These risks can be located anywhere in the world.
As a professional, MARSH has a duty to inform and advise, in accordance with the current regulations applicable to insurance brokers, in all matters relating to the coverage of risks that the Client has decided to assign to MARSH through insurance placements. The insurance Contracts remind the insured of its obligations, in particular the importance of the exact and complete declaration of all the elements necessary for the accurate assessment of the risk by the insurer (articles L.113-8 and L.113-9 of the French Insurance Code), both at the time of the subscription of the Contract and at any time during the coverage period (article L.113-4 of the French Insurance Code). MARSH is at Client’s disposal to give any relevant explanation related to this.
8. 1 Risk study and placement
The extent of MARSH's Assignment, relative to the preliminary study and design of the insurance proposal, shall be based on the information that the Client supply to MARSH and/or that MARSH has requested from the Client. MARSH's Assignment shall be performed in accordance with the transparency rules defined by the MMC Group.
8. 2 Contract management
The technical and administrative management of Contracts aims to ensure the continuity of the guarantees and adapt them to the Client's development, needs and risk characteristics; it is the inseparable extension of placing the risks.
To this effect, MARSH defines and requests from the Client the usual information on the nature and extent of the insured risks, according to the agreed frequency. For this, MARSH checks the Contracts and/or endorsements and, as appropriate, the premiums calls or the premium statements before signature and payment by the Client. MARSH also sends the Client the different certificates relating to the Contracts.
For the signature of insurance policies, the MarshSignature solution will be preferred. It meets all eIDAS regulatory requirements for electronic signatures.
When appropriated, premiums shall be issued by digital invoices.
It is expressly agreed that MARSH is mandated to proceed on behalf of the Client, whenever this shall be necessary and after validation by the Client, to the termination of insurance policies subscribed through MARSH’s intermediary by the most appropriate means and this in compliance with articles of the French Insurance Code.
8.3 Claims management
MARSH is responsible for the management of claims in excess of the deductible under the insurance policy(ies) placed by MARSH.
This claim management consists of:
• acknowledging receipt of the claim within 48 hours,
• checking the claim form to ensure that it contains the information required for its transmission to the insurers as well as the existence and scope of the coverage in principle (this check is intended to identify by e-mail the main questions and/or difficulties that the insurer might want to put forward at this stage),
• transmitting the claim form to the insurers who are responsible for the [COMPANY]'s insurance policies, on the basis of [COMPANY]'s instructions, and/or to the excess insurers,
• appointing experts when MARSH is authorized to do so, or having them appointed by the insurers,
• following up on the communication of the file’s documents,
• following up with insurers and participants (experts, counsel and lawyers if necessary),
• ensuring that the claim is covered in accordance with the coverages of the applicable policy,
• submitting proposals for settlement of the claim made by the insurer to [COMPANY],
• monitoring the settlement of the claim when the proposal has been accepted and, if necessary, following up with the insurer,
• providing a standard statistical report once a year illustrating the loss experience.
The participation of MARSH in the meetings of legal expertise shall be expressly requested by the Client and will be invoiced per MARSH collaborator whose presence will be required by the Client (travel expenses outside the Ile de France region in addition).
In addition, in the event of a Major Claim as defined below and for a specific fee agreed between the Parties, MARSH may provide the Client with its Claims Solutions service, making available an Expert Claims Consultant; a technical specialist in the delivery of customized solutions adapted to the Major Claim. These services may include, if required and at the Client's option, the provision of a loss assessment service with the provision of a Financial and/or Technical Expert.
A “Major Claim” is any claim that is complex in nature and/or high stakes due to its financial, strategic or media impact and/or due to the difficulties encountered during its handling and/or any other claim for which the Client and MARSH agree that a specific strategy is required.
MARSH does not make any advance on the amount of compensation due in the event of a claim.
In addition, the Client authorises MARSH to interrupt the two-year limitation period on behalf of the Client by the most appropriate means, in accordance with the provisions of articles L.114-1 and subsequent of the French Insurance Code.
In addition to the above-mentioned services, MARSH may offer and implement additional services to the Client, described in a specific service agreement.
MARSH's mandate is limited to the management of new claims (declared under the MARSH brokerage mandate). The potential takeover by MARSH of the management of claims declared under the mandate of the previous broker will be subject to the payment of an additional remuneration in the form of fees to be defined by mutual agreement and subject to the signature of a separate agreement specifying the precise terms of MARSH's intervention prior to the effective transfer of the claims files.
In case of termination of MARSH's mandate on a policy, the continuation of the management of claims by MARSH will also be subject to additional remuneration in the form of fees, subject to the signature of a separate agreement (not applicable to ten-year liability).
8.4 International coordination
If it is agreed that MARSH will be responsible for the international coordination of the Client's programmes, MARSH will provide the following services:
• After setting up the network of local correspondents, setting up local polices based on the given instructions as confirmed by the Client.
At the request of the Client and through its local contacts MARSH will undertake:
• The issuance of necessary local policies,
• The transmission of local policy summaries,
• Annual reporting using a MARSH format on the issuance of local policies relevant to the programme(s) and the payment of premiums.
MARSH can provide the Client with any useful technical indications on the scope of the current coverage, without giving legal opinion or advice on foreign law.
It is specified that, in the framework of the international coordination, MARSH does not intervene in the placement of local policies.
Article 9. SPECIFIC SERVICES
Any additional service not provided for in the MARSH Standard Services (Article 8) must be seen as a specific service.
Any specific service shall be subject to a separate service agreement to determine the nature of the service, the terms and conditions of its execution and the related remuneration.
Article 10. SPECIFIC CLIENT UNDERTAKINGS
As part of the execution of MARSH services, the Client shall:
- check that the policies and/or endorsements submitted upon its signature comply with instructions given to MARSH,
- communicate as soon as possible and in a complete and precise manner all information allowing MARSH to ensure an adequate and durable follow-up of the insurance coverage subscribed,
- notify MARSH as soon as possible of any change in its activity and its conditions of practice, likely to modify the opinion of the insurers on the covered risks,
- pay premiums within the required deadlines.
The Client acknowledges the need to retain the contractual documents for as long as they may be used to investigate a claim and for a minimum of two years after the files are closed.
Article 11. LIABILITIES
Each Party shall be liable for the consequences arising from its breaches and failures of its respective obligations under the Agreement. There is no joint and several liability between the Parties.
In the event that MARSH's liability is established, it will be limited to direct material damage to the exclusion of any indirect or immaterial damage and in particular any commercial loss, loss of clients, loss of orders, loss of profit, damage to brand image.
MARSH’s aggregate liability for any cause of action arising out of this Agreement with respect to any Agreement shall be limited to the lesser of the following amounts: five (5) times the amount of the annual compensation received under the Agreement, or two million euros (€2,000,000).
MARSH is not liable for errors and omissions of a third party if the collaboration with this third party is due to the Client's request.
Article 12. CONFLICT OF INTERESTS
The Client is aware of the fact that MARSH may, currently or later, provide advice to, or undertake assignments for other clients in circumstances that could potentially lead to conflicts of interest. Consequently, MARSH will take all appropriate actions to preserve the secrecy of confidential information.
Article 13. DISPUTES
The Parties will endeavour to settle amicably any disputes arising from the Agreement including any question regarding its existence. The most diligent Party shall notify the other Party by registered letter with acknowledgement of receipt that it intends to resort to conciliation, specifying the nature of the dispute and the amount possibly at stake.
If the dispute persists beyond thirty (30) calendar days from the date of receipt of the registered letter with acknowledgement of receipt of notification by the other Party, the most diligent Party may refer the matter to an arbitration body with exclusive jurisdiction.
The methods of appointment and the procedure are governed by the arbitration rules of CEFAREA-ARIAS (“Centre Français d'Arbitrage de Réassurance et d'Assurance” ~ French Reinsurance and Insurance Arbitration Center), an associate member of CMAP (“Centre de Médiation et d’Arbitrage de Paris” ~ Paris Mediation and Arbitration Center). The number of arbitrators shall be three and they shall rule in law. The sentence is definitive.
The same shall not apply in the event of a coverage claim or a writ of forced intervention issued before a French court by a third party to one of the Parties to the Agreement. In such a case, the court having jurisdiction to deal with disputes between the Parties shall be the court of the main proceedings.
Article 14. PERSONAL DATA PROCESSING
15.1. Definitions
ü “Applicable Legislation” means (i) the French data protection law N°.78-17 of 6th January 1978, as amended from time to time, (ii) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27th April 2016, which shall be applicable as from 25th May 2018 (hereafter the “GDPR”), and (iii) any legislation on the processing of Personal Data that is applicable during the term of the Agreement.
ü “Personal Data”, “Processing”, “Data Subject”, “Controller”, “Processor”, “Consent”, “Personal Data Breach”, “Supervisory Authority”, “Transfer”, “Privacy Impact Assessment” and “Appropriate Safeguards” are defined in article 4 of the GDPR and/or shall have the same meaning as in the GDPR when used herein.
15.2. Role of the Parties
The Parties agree that, throughout the term of the Agreement, their respective roles shall be as follows: each of the Parties shall act as Controller when the Client has given to MARSH a brokerage letter.
15.3. General Commitments
The Parties undertake that, throughout the term of the Agreement, (i) they will be in compliance with the Applicable Legislation, (ii) upon request, they will communicate the name and contact details of their data protection officer, if they appointed one in accordance with article 37 of the GDPR, to each other; and (iii) cooperate with each other in their efforts to ensure compliance with the Applicable Legislation, to the extent possible and at the requesting Party’s expense.
15.4. Lawful Processing; Consent and information of the Data Subjects
Each Party undertakes to ensure the lawfulness and transparency of the Processing carried out under the Agreement.
15.5. Exercise of the rights of data subjects
Each Party is required to promptly deal with any requests from Data Subjects to exercise their rights that it receives relating to the Processing it carries out.
15.6. Security and confidentiality
MARSH and the Client shall ensure the confidentiality and security of the Personal Data processed, notably by taking any technical and organisational measures to ensure a level of security and confidentiality appropriate to the risks.
Article 15. CONFIDENTIALITY
Each Party agrees not to disclose any confidential information concerning the other Party of which it has had knowledge under the Agreement and not to use it for other purposes, for a duration of two years from the date at which it was received.
The present article only applies to information identified as confidential by the disclosing Party.
Each Party shall take all the security measures to ensure confidentiality, in particular in respect of its personnel.
However, each Party acknowledges the necessity for the other Party to disclose this information to other professional partners (insurers, reinsurers, independent expert advisers, investors, etc.) for the proper performance of MARSH's Assignment and does not prevent the disclosure of all or part of the confidential information that may be legally required.
Article 16. INTELLECTUAL PROPERTY
Each Party is the sole owner of the names, trademarks, logos, signs, designs and methodologies belonging to it, whether created voluntarily or not, whether set out in the Agreement or not. In addition, MARSH is the owner of the rights attached to the policy wording and to the Agreement and of any deliverable supplied in this context.
Each Party undertakes to respect all the ownership rights of the other Party on its names, trademarks, logos, signs and designs and shall refrain from arousing any analogy in the public mind, for whatever purpose.
Article 17. REMUNERATION AND FINANCIAL CONDITIONS
In consideration of the execution of the Standard Services as described above, MARSH will receive commission based on the net premiums related to the policies subscribed in respect of services related to insurance operations. The amount of this commission will be communicated to the Client upon request.
When appropriate, MARSH may also receive an additional remuneration, the amount of which is agreed by the Parties separately. This additional remuneration will be subject to VAT at the current rate:
• Yearly fees.
• In the event of a Major Claim as defined above (article 8.3), the Client and MARSH agree to discuss the management of this claim. In the event that the Client retains MARSH's Claims Solutions services, a specific service agreement will be agreed for this Major Claim. This agreement shall specify the scope of the services, the quality of the people involved, and the remuneration granted by the Client to MARSH in return.
• In case of a significant premium decrease, regardless the reason, MARSH may ask an additional remuneration to be defined between the Parties. This additional remuneration shall be received in the form of fees subject to VAT at the current rate and shall be paid on receipt of the invoice issued by MARSH.
Fee invoices are issued according to the following schedule:
• deposit on fees: January of relevant year.
• balance of fees excluding the variable part after calculation of the final premiums: July of relevant year.
• variable part: April of the following year.
The Client undertakes to pay the fees due under this Agreement to MARSH by bank transfer within thirty (30) days of the invoice date.
In accordance with the applicable legislation, late payment penalties will be applied to the amount of the invoice exclusive of tax in the event that payment (of all or part of the remuneration) has not been made within the payment period provided for in the Agreement.
These penalties are equal to three times the legal interest rate and start to run without prior notice as soon as the payment deadline expires.
Any delay in payment shall automatically entail, in addition to the late payment penalties, an obligation on the part of the debtor to pay a fixed indemnity of forty euros (€40) for collection costs (Articles L.441-10 and D.441-5 of the French Commercial Code).
Any substantial variation in the scope of MARSH's services (in particular: new missions within the framework of existing insurance contracts, implementation of new contracts, etc.) will lead to a renegotiation of the amount of MARSH's remuneration in order to allow MARSH to receive a remuneration matching the services performed.
Any interest accruing on premiums collected by MARSH before remittance to the Insurer shall be retained by MARSH without being deducted from the remuneration allocated to it.
The fees owed to MARSH in return for the services performed for the Client, as defined in the Agreement, are indexed on the industrial risks index, published by French Federation of Insurance Companies (“France Assureurs”). The reference index is that of the 1st quarter during which the Agreement takes effect. The first revaluation shall take place at the end of the first year of the Agreement, by application of the reference index variation observed over the course of 12 months, using the following formula: P1 = P0 x S1/S0. This shall take place every year using the same method. In no event, the drop of the index will decrease MARSH’s remuneration.
In case of a deposit invoicing, the indexation will be done on the total amount of the considered year and called at the time of the invoicing of the balance of the fees.
P0: initial amount of the fees
S0: last known industrial risk index at the effective date of the Agreement
S1: last known industrial risk index at the renewal date of the Agreement
P1: revised amount of fees
The remuneration does not include:
• any processing costs borne by MARSH for issuing premium invoices. Consequently, MARSH receives in addition, as administrative fees, a fixed sum for each premium invoice issued. These charges are payable at the same time as the premium.
• any travel, accommodation and catering costs outside metropolitan France will be invoiced to the Client at real cost. A detailed statement of reinvoiced expenses will be attached to the invoice. The Parties shall jointly agree on the necessity of MARSH’s travel.
• any translations costs, if requested by the Client, shall be reinvoiced to the Client.
Article 18. NOTIFICATIONS
Unless otherwise provided for by law or in the Agreement - any other notice concerning the Agreement may be duly sent by post (by registered letter with acknowledgement of receipt or equivalent) or by email (with acknowledgement of receipt), marked for the attention of the following persons/departments and at the following addresses:
For the Client: see page 1
For MARSH: Legal Department dj.france@marsh.com
Article 19. FINAL PROVISIONS
19.1. As part of the performance of MARSH's Assignment, the Client authorises this latter to sub-contract all or part of the performance of said Assignment under the conditions set out in law n°. 75-1334 of 31 December 1975.
19.2. The Agreement and any appendices supersede any previous oral or written agreements in relation to its subject matter. The void of a clause does not, by itself, entail the void of the entire Agreement.
19.3. The services referred to in articles 8 and 9 of the Agreement may be separated from each other and from the Agreement. The Client may, subject to a two-month period notice, send a registered letter with acknowledgement of receipt to request the termination of the services mentioned in the said articles. A written endorsement signed by both Parties shall specify the effects of the requested change with regard to the rest of the Agreement (effective date, effect on remuneration, etc.).
19.4. Any modification of a clause of the Agreement, other than the commission rate applicable to a policy shall be done in writing by an endorsement signed by the duly authorised representatives of both Parties.
19.5. Except as necessary for the performance of the Agreement or to respond to the competent legal or administrative authorities having the power to compel it to do so, each Party shall refrain from making a reference in any manner whatsoever to the Agreement or to the other Party without the prior written agreement of such Party. However, MARSH reserves the right to include a reference to the Client in its business reference list. This reference will not include any confidential or sensitive information and may be provided to the Client on request.
