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General Conditions of FREEMIUM Service

last update: 2017/02/26

PREAMBLE

Société OPENDATASOFT, a company with its registered office located at 130, rue de Lourmel, 75015 PARIS, and with registration number RCS PARIS 538 168 329 (hereinafter ‘OPENDATASOFT’), operates the platform accessible at https://www.opendatasoft.com/ (hereinafter the ‘OPENDATASOFT PLATFORM’).

Based on a software as a service (SaaS) model and an economic approach, the OPENDATASOFT PLATFORM can provide numerous uses, including: Open Data portals, internal data references, smart city platforms, dataset market places … and it allows the following:

  • Processing and publication of datasets for systems management.
  • User data search and visualization.
  • Reuse of data via simple and powerful API’s for developers.

In order to better tailor the SERVICES offered by OPENDATASOFT to the CLIENT’s needs, and to enable the CLIENT to select the SERVICES it requires in full knowledge of the facts, the CLIENT acknowledges that OpenDataSoft has provided it with the necessary information, particularly via the OPENDATASOFT PLATFORM, and that OpenDataSoft has answered its questions and provided all demonstrations that the CLIENT has requested concerning the SERVICES described below.

ARTICLE 1. DEFINITIONS

The terms listed below in these General Conditions of FREEMIUM Service (“GCFS”) shall have the following definitions:

  • “BACK-OFFICE”: The administrative interface of the DOMAIN provided for the CLIENT by OpenDataSoft. Using the BACK OFFICE, the CLIENT can customize the graphic interface of its DOMAIN, and define administrator rights for the DOMAIN, as well as security levels for the creation of DATASETS, their modification, publication, etc. BACK- OFFICE functionalities are specified in detail at http://docs.opendatasoft.com.

  • “BENEFICIARY”: The end USER benefiting from a right of access to DATASETS published by the CLIENT.

  • “CLIENT”: The producer of DATASETS registered on the OPENDATASOFT PLATFORM, who has subscribed to one of the offerings provided by OPENDATASOFT for the use of the SERVICES.

  • “DATASETS”: Data produced by CLIENTS, published on the OPENDATASOFT PLATFORM and made accessible to all or some of the different categories of USERS, depending on the offer subscribed by the CLIENT and the licenses offered by the latter.

  • “DOMAIN”: The domain name of the type http://.opendatasoft.com opened by the CLIENT in connection with the offering subscribed so it can publish its DATASETS. Specific DOMAINS can also be opened subject to conditions (transmission of the relevant HTTPS certificate making it possible to secure access to the domain – private code, certificate and possible intermediate certificates)

  • “FREEMIUM SERVICE”: The free services package offered to CLIENTS as explained in detail at http://www.opendatasoft.com. To subscribe to the FREEMIUM SERVICE, CLIENTS are required to agree to these GCFS accessible at https://legal.opendatasoft.com/en_GB/terms-of-services-freemium.html.

  • “OPENDATASOFT PLATFORM”: The platform published by OPENDATASOFT, as well as all of its graphic, audio, visual, software and textual components. The OPENDATASOFT PLATFORM is the exclusive property of OPENDATASOFT. It is accessible at https://www.opendatasoft.com/.

  • “OPEN LICENSE”: The kind of LICENSE applicable to the DATASETS published in the PUBLIC SPACE of the OPENDATASOFT PLATFORM or accessible by the BENEFICIARIES, without restriction. DATASETS published by CLIENTS with an OPEN LICENSE confer upon BENEFICIARIES a right of access and use that is non-exclusive and free of charge, for the whole world and for the total duration of all intellectual property rights pursuant to the applicable laws in force. The right of use includes (without limitation): reproduction, reuse, publication, dissemination, adaptation, modification, extraction and exploitation of the DATASETS.

  • “PRIVATE LICENSE”: The specific type of LICENSE applicable to the DATASETS published by the CLIENT through its DOMAIN.

  • “PUBLIC SPACE”: All of the spaces of the OPENDATASOFT PLATFORM freely accessible to all categories of USERS.

  • “SERVICES”: All services offered by OPENDATASOFT via the OPENDATASOFT PLATFORM. The SERVICES are explained in detail in Article 4 of the General Conditions of Use (“GCU”).

  • “SOLUTIONS”: Software applications offered on the OPENDATASOFT PLATFORM enabling the dissemination, organization, manipulation, aggregation, importation, sorting, etc. of DATASETS via the OPENDATASOFT PLATFORM. The various software SOLUTIONS, including BACK OFFICE, are described at http://docs.opendatasoft.com.

  • “USERS”: All users of the OPENDATASOFT PLATFORM, including:

    • BENEFICIAIRIES navigating on the OPENDATASOFT PLATFORM and accessing DATASETS, and
    • CLIENTS, producers of DATASETS

In these GCFS, unless the context otherwise requires, words in the singular include the plural and vice versa, and a reference to a gender includes each other gender.

ARTICLE 2. PURPOSE OF CGFS – CONTRACTUAL DOCUMENTS

These GCFS, entered into between OPENDATASOFT, on the one hand, and the CLIENT, on the other hand (hereinafter collectively referred to as the ‘PARTIES’), govern the rights and obligations of the PARTIES in the context of the FREEMIUM SERVICE, and are intended to supplement the General Conditions of Use (GCU) published at https://legal.opendatasoft.com/en_GB/terms-of-use.html.

ARTICLE 3. SUBSCRIPTION TO FREEMIUM SERVICE

To subscribe to the FREEMIUM SERVICE, the CLIENT must register on the OPENDATASOFT PLATFORM, pursuant to the provisions of Article 3 of the General Conditions of Use (GCU) accessible at https://legal.opendatasoft.com/en_GB/terms-of-use.html.

ARTICLE 4. DESCRIPTION OF FREEMIUM SERVICE

The FREEMIUM SERVICE, as set forth in detail at: http://www.opendatasoft.com, allows in particular the following:
- The option of managing a DOMAIN - The option of publishing, modifying, organizing and consulting DATASETS via the BACK OFFICE and SOLUTIONS in accordance with the technical limits stated at the time of creation of the FREEMIUM account and/or as agreed with OPENDATASOFT.

As a corollary of the free nature of the FREEMIUM SERVICE, OPENDATASOFT reminds the CLIENT that no guarantee of level of service is granted in the context of this offering. Specific service levels may be agreed upon between OPENDATASOFT and the CLIENT in the context of the paid offerings explained at http://www.opendatasoft.com and the related General Conditions of Services.

ARTICLE 5. OBLIGATIONS OF CLIENT

In using the OPENDATASOFT PLATFORM, the CLIENT undertakes to not violate public order and to comply with the laws and regulations in force, to respect the rights of third parties and the provisions of these GCFS, as well as the General Conditions of Use (GCU) accessible at https://legal.opendatasoft.com/en_GB/terms-of-use.html.

In particular (but without limitation), with regard to the FREEMIUM SERVICE, the CLIENT undertakes to do the following things:

  • To inform the BENEFICIARIES of the type of LICENSE and the source for each DATASET released through the OPENDATASOFT PLATFORM
  • To not infringe the rights of third parties, including without limitation the intellectual property rights of third parties through the establishment, dissemination or manipulation of DATASETS created through the account opened on the OPENDATASOFT PLATFORM and distributed either through the DOMAIN or in the PUBLIC SPACE.

The CLIENT shall be solely liable for the DATASETS that it disseminates using the OPENDATASOFT PLATFORM and for its relations with the BENEFICIARIES, in acknowledgment that OPENDATASOFT is acting, in this context, solely as a mere technical intermediary.

ARTICLE 6. LIABILITY

The CLIENT’s attention is drawn to the provisions and limitations on OPENDATASOFT’S liability contained in Article 6 (Liability) of the General Conditions of Use (GCU), which shall apply to the FREEMIUM SERVICE to the maximum extent permitted by applicable law. The GCU are accessible at https://legal.opendatasoft.com/en_GB/terms-of-use.html.

ARTICLE 7. SECURITY AUDITS

In order to objectively measure the OPENDATASOFT PLATEFORM security, the CLIENT can conduct, at its expenses, security audits – including penetration tests – on the OPENDATASOFT PLATFORM, in accordance with the conditions provided in this Article and within the limit of 1 audit per year.

The CLIENT shall obtain the agreement of OPENDATASOFT at least 15 days before the beginning of the test.

In relation to all aspects of the audit, the CLIENT shall comply with the general conditions of the Infrastructure provider (Iaas) who hosts its DOMAIN, a copy of which OPENDATASOFT will provide upon request.

The CLIENT shall communicate all useful information concerning the penetration test, including: - Contact details of the auditor and the persons in charge of the audit. - IP addresses used for the Penetration tests - The tools used for the test.

The CLIENT will only be able to perform penetration tests from its DOMAIN and its credential.

The audit operations must not involve actions which could damage the infrastructure hosting the DOMAIN or interfere with other DOMAINS or SERVICES provided by OPENDATASOFT to other CLIENTS.

All information obtained during the audit shall be CONFIDENTIAL INFORMATION which the CLIENT shall, and shall procure that its appointed auditor shall, treat in the strictest confidence and not disclose to any person without OPENDATASOFT’s prior written consent.

If the CLIENT retains an external auditor, the CLIENT shall procure that such auditor shall accept, in writing to OPENDATASOFT, all the conditions referred to in this Article before it conducts any security audits on the OPENDATASOFT PLATFORM.

The CLIENT shall, free of charge, submit the report presenting each audit’s findings to OPENDATASOFT, which could present its observations on it and to use as it to improve the OPENDATASOFT PLATFORM.

ARTICLE 8. INTELLECTUAL PROPERTY

Each one of the PARTIES shall retain ownership of the knowledge, know-how, processes, information, technical, industrial or commercial data, supplies, software and other creations and intellectual property that it possessed prior to the earlier of the date on which the CLIENT accepts these CGFS and the date on which OPENDATASOFT starts to provide the FREEMIUM SERVICE.

(i) Property of the CLIENT

The DATASETS published on the OPENDATASOFT PLATFORM by the CLIENT from his account shall remain the property of the CLIENT, who shall be responsible for overseeing its dissemination and access via the BACK-OFFICE of its DOMAIN, and the establishment of OPEN LICENSES and/or PRIVATE LICENSES.

(ii) Property of OPENDATASOFT

The CLIENT acknowledges that the OPENDATASOFT PLATFORM and all of its components are the exclusive property of OPENDATASOFT.

The brands, logos, slogans, trade marks, graphic elements, photographs, animations, videos, software, databases and texts created, published or recorded by OPENDATASOFT are the exclusive property of OPENDATASOFT and cannot be reproduced, used or represented without express prior authorization, under penalty of legal prosecution.

In this light, the CLIENT is forbidden:

  • To use the name OPENDATASOFT in his campaigns without the prior written agreement of OPENDATASOFT;
  • To mislead or create any confusion regarding the CLIENT’S relationship with OPENDATASOFT in the context of his advertising campaigns and/or promotional notices;
  • To adapt, correct, modify, reproduce reverse engineer in whole or in part the OPENDATASOFT PLATFORM and the related SERVICES.

Any total or partial representation of the OPENDATASOFT PLATFORM or its components, through any behavior whatsoever, without the express prior authorization of OPENDATASOFT or, as the case may be, of CLIENTS with respect to DATASETS disseminated by their actions, is prohibited.

Furthermore, OPENDATASOFT expressly prohibits the following:

  • Extraction by permanent or temporary transfer of all or a qualitatively or quantitatively substantial part of the content of the OPENDATASOFT PLATFORM, by any means and in any way whatsoever; as long as the party committing this extraction is acting without a LICENSE granted by OPENDATASOFT or its CLIENTS.

  • The reuse, through making available to the public all or a qualitatively or quantitatively substantial part of the OPENDATASOFT PLATFORM, in any way whatsoever as long as the party committing this reuse is acting without a LICENSE granted by OPENDATASOFT or its CLIENTS.

(iii) Management of LICENSES

In the context of the administration of its DOMAIN opened in the context of the FREEMIUM SERVICE, it is up to the CLIENT to parameterize the level of security of the DATASETS that he wishes to publish (OPEN LICENSE, PRIVATE LICENSES).

It is specified that by default, DATASETS will be published in accordance with a closed LICENSE, preventing any disclosure of DATASETS to third parties.

For each DATASET, the CLIENT also undertakes to specify its source in order to inform the BENEFICIARIES thereof.

ARTICLE 9. PROTECTION OF PERSONAL DATA

Each one of the PARTIES guarantees the other PARTY that it will respect the legal and regulatory obligations incumbent upon each of them in terms of each one’s role concerning the protection of personal data.

(i) Concerning processing performed by OPENDATASOFT

In the context of the operation of the OPENDATASOFT PLATFORM, OPENDATASOFT collects personal data when a CLIENT registers, and with the opening of his account.

Such data is necessary for processing the opening of the account, and will be processed in accordance with this purpose.

OPENDATASOFT’s Privacy Policy accessible at https://legal.opendatasoft.com/en_GB/privacy-policy.html applies to all USERS and sets out how personal data is processed through the OPENDATASOFT PLATFORM.

It is noted that a USER has the information rights set out in the above mentioned Privacy Policy. The USER also enjoys the right of access, and the right to correct and to challenge the processing of his personal data pursuant to the applicable law, These rights can be exercised by a simple e-mail request addressed to cil@opendatasoft.com, or by standard postal delivery to the address of the company headquarters of OPENDATASOFT, with proof of its identity and a legitimate reason if its request (if a legitimate reason is required by applicable law).

(ii) Concerning processing performed by the CLIENT

In the event of processing personal data implemented by the CLIENT from its DOMAINS, OPENDATASOFT shall be acting as the data processor of the CLIENT and the CLIENT shall be the data controller in respect of that personal data (where “data controller” and “data processor” are as defined in the Data Protection Act 1998).

In respect of that personal data OPENDATASOFT:

  • Shall only process the personal data to the extent, and in such a manner, as is necessary for the purposes of performing the Services and in accordance with the CLIENT’s lawful instructions, and such processing shall always be under the full and exclusive liability of the CLIENT, and

  • Shall take appropriate technical and organisational measures to protect the personal data against unauthorised or unlawful processing and against accidental loss, destruction or damage to the personal data.

As the data controller of that personal data, CLIENT shall provide a clear privacy statement in each of its DOMAINS to enable BENEFICIARIES to understand how DATASETS and personal data is processed in relation to each of its DOMAINS.

In order to ensure contractual security and confidentiality guarantees to potential transfer of personal data outside the EU in accordance with the Law n°78-17 known as the “Computer and Freedoms” law of January 6, 1978, the CLIENT gives a mandate to OPENDATASOFT to conclude, in its name and on its behalf, Standard Contractual clauses following the model developed by the European Commission (commission decision of 5 February 2010 C(2010) 593 - 2010/87/UE).

ARTICLE 10. FORCE MAJEURE

OPENDATASOFT cannot be held liable, or deemed to have failed to fulfill these General Conditions of Service (CGFS) for any delay or lack of execution, if the cause of the delay or lack of execution is associated with a case of force majeure as it is defined by the jurisprudence of French courts and tribunals, in particular, in the event of hacking, unavailability of materials, supplies, hardware, peripherals, personal or other equipment; and interruption, suspension, reduction or disruptions of electricity or other things, or any interruptions of electronic communications networks.

ARTICLE 11. GENERAL PROVISIONS

OPENDATASOFT reserves the option to update and amend these General Conditions of Service (GCFS) at any time, it being specified that the GCFS in force are those validated by the CLIENT on the first access to his DOMAIN.

No instruction or document can give rise to an obligation not included in these General Conditions of Service (GCFS) as amended from time to time unless they are subject to a new agreement between the PARTIES.

Nothing in these GCFS is intended to, or shall be deemed to, establish any partnership or joint venture between any of the PARTIES, constitute any PARTY the agent of another PARTY, or authorise any PARTY to make or enter into any commitments for or on behalf of any other PARTY.

Each PARTY confirms it is acting on its own behalf and not for the benefit of any other person.

No failure, delay or indulgence by either PARTY in exercising any power or right under the GCFU shall operate as a waiver of that power or right.

Article headings in these GCFU are included for convenience only and shall have no effect on the interpretation of these GCU.

If any provision or part of a provision of these GCFU is held to be invalid, illegal or unenforceable that part shall be severed and the remaining provisions shall continue to be valid and enforceable as if the invalid provision was omitted from these GCFU.

ARTICLE 12 APPLICABLE LAW

The construction, validity and performance of these GCFU and all non-contractual obligations arising from or connected with these GCFU shall be governed by English law.

The PARTIES agree that any dispute arising out of or related to these GCFU (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the courts of England and Wales. .

In the event of disputes arising between the PARTIES regarding the interpretation, execution or termination of these General Conditions of Freemium Services, the PARTIES shall strive to reach an amicable settlement.