General Conditions of PREMIUM Service
last update: 2017/02/26
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/.
These General Conditions of PREMIUM Service (“GCPS”) apply, in conjunction with the other OPENDATASOFT terms referred to in Article 2 below, to the full exclusion of any other terms and conditions (including without limitation any standard purchase conditions that the CLIENT may use with its other suppliers).
ARTICLE 1. DEFINITIONS
The terms listed below in these GCPS shall have the following definitions:
“ACCOUNT”: The account of the CLIENT on the OPENDATASOFT PLATFORM enabling access to the SERVICES ordered pursuant to the choices identified in the Particular Conditions. Access to the ACCOUNT is achieved using the CLIENT’s IDENTIFIERS.
“BACK-OFFICE”: The administrative interface of the DOMAIN provided for the CLIENT by OpenDataSoft. Using the BACK OFFICE, the CLIENT personalize the graphic interface of its DOMAIN, 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 identified in Annex 1 of the Particular Conditions, who has subscribed to one of the PREMIUM SERVICE offers.
“CONFIDENTIAL INFORMATION”: This designates (i) protected information (held by the disclosing Party or a third party with which the disclosing party has a non-disclosure obligation), particularly any information, know-how or software, including without limitation its source code and any translation, compilation, partial copy or derivative work; (ii) any information designated as confidential at the time of its disclosure to the receiving party, or when it is orally communicated, identified as being confidential and expressed in written form or other material form (including electronically), which encompasses a notice of confidentiality clearly stipulated and transmitted to the addressee within a period of thirty (30) days following the disclosure; and (iii) any information that should, in light of the circumstances of its disclosure, be treated in good faith as protected and confidential.
“CONTRACT”: Our agreement with you as described in Article 2 below.
“CREATIONS”: Any intellectual creation made specifically by OPENDATASOFT in the context of the performance of the SERVICES, including without limitation software, graphics, text, sound, audiovisual, visual, documents, reports, analyses, studies, manuals, visuals, models, illustrations, drawings, and results of work performed in the context 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 for the purpose of publishing 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)
“IDENTIFIERS”: The confidential identification code and password enabling access to the ACCOUNT. These Identifiers are provided by OPENDATASOFT and are for the exclusive use of the CLIENT, who is solely responsible for them.
“OPENDATASOFT PLATFORM”: The platform published by OPENDATASOFT, as well as all of its graphic, audio, visual, software and textual components. The PLATFORM is the exclusive property of OpenDataSoft. It is accessible at https://www.opendatasoft.com/.
“OPEN LICENSE”: The kind of LICENSE applicable to DATASETS published on 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 DATASETS.
“PARTICULAR CONDITIONS”: The attached OPENDATASOFT Particular Conditions setting out SERVICES ordered by the CLIENT.
“PREMIUM SERVICE”: The paid services offered by OpenDataSoft through the OPENDATASOFT PLATFORM, within the bounds of technical constraints and depending on the service levels specified in the Particular Conditions at the time of subscribing. The PREMIUM SERVICES shall provide a series of options that can be activated by the CLIENT.
“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 2 of the Particular Conditions.
“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.
“SUPPLEMENTARY SERVICES”: The paid optional services presented in the Particular Conditions that can be activated directly by the CLIENT from his BACK OFFICE, being subject to specific contractual conditions.
“USERS”: All users of the OPENDATASOFT PLATFORM, including:
- BENEFICIAIRIES navigating on the OPENDATASOFT PLATFORM and accessing DATASETS, and
CLIENTS, producers of DATASETS
“WORKING DAYS”: This designates every day from 9 :00 am to 6 :00 pm, except Saturday, Sunday and holidays in France
In these GCPS, 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. CONTRACTUAL DOCUMENTS
Our agreement with you (“CONTRACT”) is composed of the following contractual documents:
The Particular Conditions, including, as appropriate, specific conditions encompassing the SUPPLEMENTARY SERVICES,
The General Conditions of Service in force, pursuant to the provisions of Article 3 below.
The General Conditions of Use in force, accessible at https://legal.opendatasoft.com/en_GB/terms-of-use.html
In the event of any conflict, terms of these documents shall prevail in the order of priority in which they are listed above.
ARTICLE 3. PURPOSE - MODIFICATION
The purpose of these GCPS is to define the rights and procedures for the use of the OPENDATASOFT PLATFORM, the related SERVICES and SOLUTIONS.
OPENDATASOFT reserves the possibility of modifying these GCPS at any time. Such modifications will be brought to the attention of the CLIENT thirty (30) days prior to the entry into force of the changes. In the event of substantial modifications of these GCPS, the following shall apply:
Where the CLIENT consents to OPENDATASOFT’s new version of the GCPS, that new version shall apply automatically from thirty (30) days after OPENDATASOFT notifying the new version to the CLIENT, without any other formality;
Where the CLIENT rejects OPENDATASOFT’s new version of the GCPS:
For fixed term subscriptions that are affected by the substantial modifications in the new version, the contractual conditions applicable on the day those subscriptions were ordered shall continue to apply until the termination or expiry of those subscriptions;
For subscriptions of indefinite duration that are affected by the substantial modifications, the CLIENT shall have the option of terminating the CONTRACT without charge, by sending a written notice to OPENDATSOFT within thirty (30) days following the date OPENDATASOFT notified the new version to the CLIENT. In this case, the CLIENT undertakes to pay to OPENDATASOFT the amounts corresponding to the SERVICES and SOLUTIONS used up until the date that the termination takes effect, calculated, as appropriate, on a prorated basis.
ARTICLE 4. USE RIGHTS
OPENDATASOFT grants the CLIENT a non-exclusive and non-transferable user license for the OPENDATASOFT PLATFORM and the related SERVICES and SOLUTIONS, adhering to the stipulations of the Particular Conditions. It is agreed that this user license is conditional upon full payment by the CLIENT to OPENDATASOFT of the amounts specified in the Particular Conditions.
The CLIENT may not under any circumstances assign, transfer, delegate or sub-license the CONTRACT to a third party directly or indirectly in any manner whatsoever without the prior written agreement of OPENDATASOFT.
Except to the extent required by applicable law (and which cannot be excluded by mutual agreement of the PARTIES), the CLIENT agrees it shall not do the following things:
To try to copy, modify, reproduce, create any derivative work, alter, create a mirror, republish, download, attach, transmit or distribute all or part of the components of the OPENDATASOFT PLATFORM and/or the SOLUTIONS that are the object of the SERVICES in any way, in any medium, or by any means whatsoever.
To try to decompile, disassemble, perform any reverse-engineering or render comprehensible in any way all or part of the SERVICES, the SOLUTIONS or the OPENDATASOFT PLATFORM
To access all or part of the SOLUTIONS and SERVICES for the purpose of conceiving a competing application or service
To access SOLUTIONS in the form of source code or coding unlocked by comments
To try in any way whatsoever to suppress, override any Technological Protection Measure (TPM), or use or manufacture with a view to sale or leasing, importing, distributing, selling or renting, offering for sale or lease, promoting sale or lease or possessing for the purpose of private or commercial use any means serving to facilitate the unauthorized suppression or overriding of a TPM
To use SOLUTIONS and SERVICES in order to provide the services to third parties or grant under license, sell, rent, assign, allocate, distribute, display, disclose, commercially exploit or deliver the SOLUTIONS and SERVICES available in any way to any third party.
The CLIENT undertakes to take all reasonable steps to prevent any unauthorized access to or use of the OPENDATASOFT PLATFORM, the related SOLUTIONS and SERVICES and, in the event of such unauthorized access or use, to notify OPENDATASOFT thereof as quickly as possible.
ARTICLE 5. ACCESS PROCEDURES
Access to the OPENDATASOFT PLATFORM and to the SERVICES shall give rise to the opening of an account protected by Identifiers, and this account opening is to be done either directly by the CLIENT on the OPENDATASOFT PLATFORM, or by OPENDATASOFT using the information sheet that appears in Annex 1 of the Particular Conditions.
In any case, the CLIENT must ensure the accuracy of the information and notify OPENDATASOFT when it must be updated.
In cases where information relating to the CLIENT’s registration may not be up-to-date, complete and/or accurate, OPENDATASOFT reserves the right temporarily to suspend or definitively rescind CLIENT access, without any time extension or prior notice, after a request for correction has gone unanswered.
The CLIENT undertakes to keep the IDENTIFIERS strictly secret, to take every measure to preserve their confidentiality, and to notify OPENDATASOFT in case of any unauthorized use of its ACCOUNT as soon as it finds out about it. By express agreement between the PARTIES, all operations implemented through the use of the CLIENT IDENTIFIERS are held to come from the CLIENT, who is solely engaged in protecting them.
OPENDATASOFT shall be entitled to terminate the CONTRACT without liability in the event that the CLIENT breaches any of the provisions of this Article 5.
The CLIENT acknowledges that OPENDATASOFT is entitled to refuse the opening of an ACCOUNT and thereby, refuse access to the OPENDATASOFT PLATFORM and the SERVICES:
To a CLIENT who has been party to a contract with OPENDATASOFT which has been cancelled less than one year previously, due to the CLIENT’s failure to uphold its contractual obligations; or
To a CLIENT who has not fully paid amounts that he owes to OPENDATASOFT in connection with an earlier CONTRACT; or
For any other legitimate reason.
ARTICLE 6. MODES OF USE
6.1. Obligations of the CLIENT
In the context of the use of the OPENDATASOFT PLATFORM, the CLIENT undertakes to not infringe the law and to obey the laws and regulations in force, to respect the rights of third parties and the provisions of this CONTRACT, including the General Conditions of Use (GCU) accessible at https://legal.opendatasoft.com/en_GB/terms-of-use.html, and any conditions that the PARTIES have agreed in relation to the SUPPLEMENTARY SERVICES activated by the CLIENT.
More particularly, with regard to the PREMIUM SERVICE, the CLIENT undertakes:
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
To use the SERVICES, in whole or in part, for illicit purposes. He exclusively assumes responsibility for the content of his DOMAIN. The CLIENT is duly informed that it is forbidden for him to send and/or keep and/or disseminate data of a pornographic, pedophile, hateful and/or racist character, or that incites hatred or discrimination
To the maximum extent permitted by applicable law, 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. In order to enable OPENDATASOFT to perform the SERVICES in the best conditions, the CLIENT further undertakes:
To cooperate with OPENDATASOFT on all matters pertaining to the SERVICES
To provide OPENDATASOFT, at its request, with all documents and information in its possession that are useful for the conduct of the SERVICES.
To promptly rectify any issue that is affecting OPENDATASOFT’s effective provision of the SERVICES arising from any of the following:
- Non-fulfillment by the CLIENT of the obligations assigned to it through these presents, and particularly wrongful use of the OPENDATASOFT PLATFORM, the SERVICES or the SOLUTIONS
- Use of the OPENDATASOFT PLATFORM, the SERVICES or the SOLUTIONS by an unauthorized third party,
- Deficiency on the part of the CLIENT in the training of his personnel,
- Lack of sufficient precision in any error report sent to OPENDATASOFT.
To take note of notifications addressed to him through the BACK OFFICE
To make regular backups of its data
To follow any training program recommended by OPENDATASOFT before making use of the tools provided for him.
The CLIENT authorizes OPENDATASOFT:
To make use of its name, company name, logo and a sample message as a “Model client” for purposes of communication or commercial promotion without any payment from OPENDATASOFT; and
To put forward testimonials whose content and procedures for presentation are to be defined through consultation between the PARTIES.
6.2. Non-compliance with the provisions of Article 6
It is agreed between the PARTIES that any failure by the CLIENT to comply with the provisions of this Article 6 shall entitle OPENDATASOFT to temporarily suspend or terminate the CONTRACT without liability.
In all events, the CLIENT shall remain bound to pay all amounts set in the Particular Conditions.
The Client shall fully indemnify OPENDATASOFT against any loss or damage it suffers as a result of or in connection with any breach by the CLIENT of the provisions of this Article 6.
Finally, in the event of the receipt by OPENDATASOFT of complaints and/or claims and/or notifications directly addressed by internet users or any administrative or judicial authority as a result of the use of the SERVICES by the CLIENT, the CLIENT shall fully compensate OPENDATASOFT for all costs of internal or external processing of such complaints and/or claims and/or notifications.
ARTICLE 7. OBLIGATIONS OF OPENDATASOFT
OPENDATASOFT warrants that it shall provide the SERVICES with reasonable care and skill and, except as expressly set out in these GCPS, it excludes all other conditions, guarantees, warranties or terms in relation to the SERVICES to the maximum extent permissible by law.
Generally speaking, OPENDATASOFT does not guarantee that the use of the OPENDATASOFT PLATFORM, the SOLUTIONS and the SERVICES will generate an increase in turnover to the benefit of the CLIENT.
7.1. Accessibility / Availability
The OPENDATASOFT PLATFORM and the related SERVICES are accessible 24 hours a day, 7 days a week, except where access is suspended due to an event beyond the control of OPENDATASOFT, and are also subject to the reservation of possible breakdowns and interventions necessary to the proper functioning of the SERVICES.
OPENDATASOFT shall deploy all reasonable means to guarantee the availability of the OPENDATASOFT PLATFORM, the subject of these GCPS, and to make it accessible to the CLIENT. To this end, OPENDATASOFT guarantees an availability of search services of 99.9% per month. Such availability is to be measured by OPENDATASOFT and reported to the CLIENT via the BACK OFFICE. Availability is defined by OPENDATASOFT as being the capacity of the OPENDATASOFT PLATFORM to attend to the requests (API’s) of USERS on a DATASET that is already integrated. It does not therefore take into account possible cases of over fulfillment of quotas or of data that is poorly or partially integrated.
OPENDATASOFT shall not be responsible for disruptions, cutoffs and/or errors that are outside of its control and that could affect transmissions over the Internet, and more generally over the communications network, whatever their importance and duration may be.
It is moreover specified that OPENDATASOFT may interrupt access to all or part of its Services for reasons of maintenance, for the improvement and installation of new functionalities, for auditing of proper functioning or else in case of breakdown or the threat of breakdown.
OPENDATASOFT shall inform the CLIENT at least 15 days in advance of the advent of rolling maintenance operations having an impact on the availability of the SERVICE.
In these circumstances, OPENDATASOFT shall not be liable to the CLIENT for any loss caused by SERVICE disruption.
(i) Principles of intervention
OPENDATASOFT will see to the corrective maintenance of the OPENDATASOFT PLATFORM, and will make its best efforts to act in accordance with the following timetable:
- Critical error: 4 hours (on working days) following the receipt of a notification of error report
- Semi-critical error: 8 hours (on working days) following the receipt of a notification of error report.
- Non-critical error: At most 5 working days following the receipt of a notification of error report.
The corrective maintenance of SERVICES and SOLUTIONS associated with the OPENDATASOFT PLATFORM may be managed by a subcontractor of OPENDATASOFT or by OPENDATASOFT itself.
For the purpose of these GCPS, it is appropriate to define the terms listed below as follows:
- “Error”: This designates a difficulty in the functioning of the OPENDATASOFT PLATFORM, of the related repetitive and reproducible SOLUTIONS and SERVICES. There are three kinds of Error:
- “Critical error”: any functional error making impossible the use of the OPENDATASOFT PLATFORM and the related Services and applications
- “Semi-critical error”: any functional error allowing for use of the OPENDATASOFT PLATFORM, the related SOLUTIONS and SERVICES for a part of its functionalities
- “Non-critical error”: any minor functional error allowing for the complete use of the OPENDATASOFT PLATFORM, the related SOLUTIONS and SERVICES in all of their functionalities, even if this is accomplished using a bypass procedure.
(ii) Procedure to be followed
The term “notification” refers to providing feedback from a documented ERROR allowing OPENDATASOFT in particular to identify the ERROR and to reproduce it in connection with its processing. The CLIENT can provide this feedback by e-mail and/or using a form specifically for this purpose.
In the absence of notification, or in case of insufficiently documented notification that does not allow OPENDATASOFT to identify or reproduce the ERROR, OPENDATASOFT shall not be bound to the timetables for correction stipulated above. In this regard, OPENDATASOFT shall not be liable:
- For failure to respect the timetables for correction following an ERROR that is not the subject of a notification as described heretofore, or that has been subject to insufficient notification (insufficiently documented).
- In the case of abusive use of server resources,
- In the case of an ERROR of an origin external to OPENDATASOFT
OPENDATASOFT makes available to the CLIENT a service of assistance available at the e-mail address: email@example.com within the following time slots: 8 :00 am to 6 :00 pm (French time).
OPENDATASOFT will attend to the rolling maintenance of the OPENDATASOFT PLATFORM, and will inform the CLIENT via its ACCOUNT or by any other means prior to the installation of a new version of one or several SOLUTIONS. It is noted that the CLIENT is not under any circumstances entitled to any maintenance of previous versions.
OPENDATASOFT undertakes to make every effort to
- Ensure the digital and physical security of its information systems
- Reduce to a minimum the risk of a security infraction.
A description of the technical security measures implemented by OPENDATASOFT is accessible at: XXX To be filled in – Cf. MC n°6 XXXX
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 XX audits 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 set out 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 for OPENDATASOFT to use as it sees fit.
7.4. Conservation of data
With respect to the data generated in the context of the SERVICES (DATASETS, statistics, reporting etc.) and of which the CLIENT is the owner, OPENDATASOFT is not bound by any obligation to conserve such data, the CLIENT being solely responsible to undertake regular backups.
In the event of termination or expiry of the CONTRACT, procedures for the deletion of data are specified in the Article entitled “Consequences of termination.”
ARTICLE 8. LIABILITY
8.1. General principles
Nothing in these GCPS shall exclude or limit OPENDATASOFT’s liability for death or personal injury arising from its negligence, or its fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by English law.
OPENDATASOFT will endeavor to respond to written CLIENT allegations of breach within a period of thirty (30) days from the date of such notification.
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 PREMIUM SERVICE to the maximum extent permitted by applicable law. The GCU are accessible at https://legal.opendatasoft.com/en_GB/terms-of-use.html. OPENDATASOFT does not guarantee that the use of the PREMIUM SERVICE will generate an increase in turnover or achieve any particular result.
In all events, the total liability of OPENDATASOFT, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising in connection with the CONTRACT shall not exceed the total amount paid by the CLIENT under the CONTRACT in the 12 months immediately preceding the date on which the breach (or other act or omission giving rise to liability) occurred.
This Article, and the provisions contained in Article 6 (Liability) of the General Conditions of Use (GCU) shall continue to apply after the termination or expiry of the CONTRACT.
ARTICLE 9. NON-SOLICITATION OF PERSONNEL
Neither PARTY shall engage or hire to work, directly or through intermediaries, any employee of the other PARTY. This undertaking is valid throughout the entire duration of the CONTRACT and for a period of at least one year after the termination or expiry thereof.
ARTICLE 10. 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 earlier of the date on which the CLIENT accepts these CGPS and the date on which OPENDATASOFT starts to provide the SERVICES.
10.1. 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.
10.2. Property of OPENDATASOFT
The CLIENT recognizes 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 OPENDATASOFT’s prior authorization.
In this light, the CLIENT is forbidden:
- To use the name OPENDATASOFT in its campaigns without the prior written agreement of OPENDATASOFT;
- To mislead or create any confusion with OPENDATASOFT in the context of its advertising campaigns and/or promotional notices;
- To adapt, correct, modify, reproduce or 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; where the party committing this extraction is acting without a valid LICENSE granted by OPENDATASOFT or its CLIENTS as applicable.
The reuse, through making available to the public all or a qualitatively or quantitatively substantial part of the OPENDATASOFT PLATFORM, in any way whatsoever where the party committing the reuse is acting without a valid LICENSE granted by OPENDATASOFT or its CLIENTS as applicable.
10.3. Management of LICENSES
In the context of the administration of its DOMAIN opened in the context of the PREMIUM 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.
Provisions specific to OPEN DATA
In the case of use by the CLIENT of so-called public data, the CLIENT undertakes to comply with all applicable legislation, rules and regulations in forceThe CLIENT must ensure, in the context of OPEN LICENSES granted (allowing free reuse for commercial or non-commercial purposes of public information), respect for the following principles:
- Public information should not be altered or distorted
- The source and date of their last updates must be stated
- Reuse must adhere to all applicable laws
10.4. Ownership of CREATIONS
In the context of the Services, OPENDATASOFT may perform services of intellectual creation consisting of the conception of specific CREATIONS by OPENDATASOFT teams on behalf of the CLIENT. These CREATIONS shall remain the property of OPENDATASOFT and the CLIENT’s rights to use CREATIONS shall be limited to those rights set out in Article 4 of these GCPS. The CLIENT shall not purport to dispose of any right over these CREATIONS besides its exercise of the right of use pursuant to the provisions of Article 4 of these GCPS. It is noted in this regard that any exploitation of the CREATIONS by the CLIENT or use of the CREATIONS separate from the SERVICES shall give rise to legal prosecution.
The Client shall fully indemnify OPENDATASOFT against any loss or damage it suffers as a result of or in connection with any breach by the CLIENT of the provisions of this Article 6.
The CREATIONS may, as requested by the CLIENT, be created from documents, information, images or any other content issued by the CLIENT to OPENDATASOFT. In this case, the CLIENT guarantees that the aforesaid content does not constitute any infringement of the intellectual property rights or any other rights of a third party or constitute any act of unfair competition. The CLIENT undertakes to fully indemnify OPENDATASOFT against all costs and losses it suffers in connection with the aforesaid content and its normal use by OPENDATASOFT under the CONTRACT.
In all circumstances, it is agreed between the PARTIES that the ownership of the CREATIONS can be transferred to the CLIENT from OPENDATASOFT upon request by the CLIENT subject to the CLIENT paying to OPENDATASOFT a fee for such transfer that has been agreed by both PARTIES.
ARTICLE 11. 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.
11.1. 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.
11.2. 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 12. CONFIDENTIALITY
Each PARTY undertakes not to use CONFIDENTIAL INFORMATION, directly or indirectly, in whole or in part, except for the purpose of carrying out its obligations under this CONTRACT.
Each PARTY recognizes in advance that any disclosure would seriously harm the interests of the PARTY that is victim of the disclosure. In consequence, the latter will have grounds to institute legal proceedings against the other PARTY, and all fellow offenders or accomplices, and to claim damages and interest in cases where commitments have not been fulfilled, for any reason whatsoever.
The confidentiality obligations stipulated by this article do not apply to the entirety or to any part of information which:
- is or was made public other than by any fault of the receiving PARTY;
- was already lawfully held by the receiving PARTY before it was disclosed by the disclosing PARTY;
- is lawfully disclosed to the recipient PARTY by a third party free of any obligation of confidence at the time of its disclosure;
- is independently developed by the receiving PARTY, without access to or benefit of such information; or
- is required by law, by court or governmental or regulatory order to be disclosed.
This Article 12 shall survive termination or expiry of the CONTRACT until the CONFIDENTIAL INFORMATION enters into the public domain in some way other than by an infraction of the receiving PARTY.
ARTICLE 13. FINANCIAL PROCEDURES
The CLIENT is required to pay invoices in full without a discount or setoff and within the deadlines set by the Particular Conditions.
In the event that an invoice is not paid within the agreed upon deadline, OPENDATASOFT reserves the right to suspend access to its SERVICES, and this suspension cannot be treated by the CLIENT as termination of the CONTRACT.
OPENDATASOFT may, in the event of a default of payment by the CLIENT, apply interest at the rate of 8% above the Bank of England base rate from time to time.
If conditions for settlement of late payment are agreed upon, such as payment in several installments, default on one single payment shall render payable the entirety of the debt. It shall also entail the immediate suspension of the benefits and services under the CONTRACT while payment is outstanding.
Possible rejections of discounts shall give rise to a re-invoicing of the CLIENT by OPENDATASOFT for bank fees paid. Termination or expiry of the CONTRACT shall not release the CLIENT from its obligations, particularly obligations to pay, that accrue prior to the date of expiry of termination.
ARTICLE 14. DURATION
This CONTRACT is concluded by the duration of the PARTIES’ respective commitments set out in the Particular Conditions.
Each commitment shall then be automatically renewed for a period of commitment identical to that initially subscribed for unless either party gives the other PARTY written notice to terminate at least thirty (30) days prior to the expiry date of the said commitment.
ARTICLE 15. SUSPENSION AND TERMINATION
15.1. Circumstances for suspension and termination
OPENDATASOFT can suspend the CONTRACT without liability to the CLIENT, and without prior notification, in the following instances:
- In the event of a lack of cooperation and/or unfairness ascertained by OPENDATASOFT, and if there is an urgent need to put a stop to the actions in question;
- When the actions of the CLIENT in any way endanger the functioning of the OPENDATASOFT PLATFORM, the SOLUTIONS or the SERVICES;
- In the event of violation of the commitments undertaken for this CONTRACT.
This decision is to be brought to the attention of the CLIENT by recorded delivery.
The suspension may be lifted within a maximum period of three (3) working days following receipt by OPENDATASOFT of a letter sent by the CLIENT by recorded delivery explaining that the cause of the suspension (as may have been reported to the CLIENT by OPENDATASOFT) has been removed, in all cases at the sole and absolute discretion of OPENDATASOFT.
Without affecting any other right or remedy available to it, either PARTY may terminate this CONTRACT with immediate effect by giving written notice to the other party if the other party commits a material breach of any term of the CONTRACT where that breach is irremediable or (if such breach is remediable) where the party in breach fails to remedy he breach within a period of thirty (7) days after being notified in writing to do so.
OPENDATASOFT may terminate the CONTRACT if the CLIENT is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction.
15.2. Consequences of termination
Upon termination of this CONTRACT:
all rights granted to the CLIENT in connection with the CONTRACT shall immediately cease; and
the CLIENT shall return all documents transmitted to it under this CONTRACT. In the event of early unilateral termination of fixed term elements of the Contract by the CLIENT (except where permitted under Article 15.1), and when the Services, as a whole, have been completed, the CLIENT shall immediately pay all outstanding amounts owed to OPENDATASOFT up until the end of the relevant fixed terms.
The Articles on Intellectual property, confidentiality, liability, and personal data shall survive expiry or termination of the CONTRACT.
Within a period of thirty (30) working days counting from the closure of the CLIENT’s Account, OPENDATASOFT shall provide the CLIENT on the FTP site with the following elements:
- Metadata files of all datasets in JSON format
- Gross data loaded on the platform (resources, attachments), in their original format
- The resulting dataset, in JSON format
- Editorial content, in HTML format
- List and groups of users, as well as their related roles, in CSV format
OPENDATASOFT shall at the same time undertake the deletion of the CLIENT’s data from the OPENDATASOFT PLATFORM.
ARTICLE 16. GUARANTEES
Each PARTY undertakes towards and guarantees to the other PARTY:
That it has the capacity and the authority to enter into this Contract, and that over the course of the relationship it shall see to and uphold all authorizations that may be necessary to the execution of its obligations
That it holds, or has been granted the rights allowing its use for the purposes of this CONTRACT, and all necessary intellectual property rights with respect to its obligations
That it will execute its obligations in relation to this CONTRACT pursuant to all of the laws in force and demonstrating diligence and reasonable competency
That it will not do or fail to do anything that would lead the other PARTY into a violation of any law or regulation in force
That it will not denigrate the other PARTY
The CLIENT accepts that the OPENDATASOFT PLATFORM, the related SOLUTIONS and SERVICES were not developed for the purpose of satisfying his individual requirements. In this light, the CLIENT is bound to ensure that the OPENDATASOFT PLATFORM, the related SOLUTIONS and SERVICES are in accordance with his needs, requirements and constraints.
OPENDATASOFT guarantees to the CLIENT undisturbed enjoyment of the OPENDATASOFT PLATFORM, the related SOLUTIONS and SERVICES, and this guarantee cannot be opposed except by the use rights conferred in the application of these presents.
Furthermore, in the event that a third party claim or legal action is filed alleging that the use of the OPENDATASOFT PLATFORM, the related SOLUTIONS or SERVICES constitutes a violation of its intellectual property rights, OPENDATASOFT undertakes to settle directly with the claimant all sums that are being demanded of the CLIENT and to become involved voluntarily, if necessary, in all venues where action is pending against the CLIENT.
The guarantee set forth in the foregoing sub-paragraphs is understood to be subject to the reservation that:
The claim or action is not the consequence of a violation by the CLIENT of his contractual commitments
The CLIENT sends to OPENDATASOFT as swiftly as possible a written opinion concerning the claim or action, setting forth a detailed explanation of its character
The CLIENT shall not assume any responsibility, nor conclude any agreement or commitment concerning the claim or action without first obtaining the written agreement of OPENDATASOFT
The CLIENT shall allow OPENDATASOFT and its professional advisors at reasonable intervals (based on reasonable advance notice) to have access to its facilities and to converse with its agents, directors, employees, representatives or advisors, and to consult any pertinent document and allow them to make copies for the purpose of evaluating the claim or action
The CLIENT shall take every reasonable measure requested by OPENDATASOFT in order to avoid, challenge, reach a settlement or defend against the claim or action.
ARTICLE 17. GENERAL PROVISIONS
Nothing in these GCPS 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 instruction or document can give rise to obligations that are not included in the CONTRACT, if they have not been the subject of a new agreement between the PARTIES.
No failure, delay or indulgence by either PARTY in exercising any power or right under the CONTRACT shall operate as a waiver of that power or right..
By express agreement, the signing of this CONTRACT entails the acceptance of electronic communications as a form of proof (e-mails, notifications on the OPENDATASOFT PLATFORM, etc.) exchanged between the PARTIES. The printout of these electronic communications is considered to be an original written document attested between the PARTIES.
In the event of any difficulty of interpretation between any of the titles appearing in the article headings, and any one of the articles themselves, the titles will be declared non-existent.
If any provision or part of a provision of this CONTRACT 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 CONTRACT had been agreed with the invalid provision omitted.
ARTICLE 18. APPLICABLE LAW – COMPETENT JURISDICTION
The construction, validity and performance of these GCPS and all non-contractual obligations arising from or connected with these GCPS shall be governed by English law. The PARTIES agree that any dispute arising out of or related to these GCPS (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 GCPS, the PARTIES shall strive to reach an amicable settlement; this provision shall not prevent either PARTY from issuing formal legal proceedings at any time.