General Terms and Conditions
Through the PLATFORM available at https://www.OpenDataSoft.com, OpenDataSoft provides Software as a Service (“SaaS”) solutions that work with open data portals, internal data references, smart city platforms, and data marketplaces to provide:
ANY USE OF THE DOMAIN, FOR ANY PURPOSE, REQUIRES ACCEPTANCE BY THE USER WITHOUT RESERVATION OF THESE GENERAL TERMS AND CONDITIONS (GTCs).
ARTICLE 1. DEFINITIONS
The terms listed below, as used in these GTCs, have the following meanings:
These GTCs, entered into between THE TOWN, on the one hand, and the BENEFICIARY, on the other hand, (hereinafter collectively referred to as the “PARTIES”) define the respective rights and obligations of each PARTY in connection with the use of all the functions offered by the DOMAIN. These GTCs form the common base of the contractual relationships and are supplemented by the OPEN and PRIVATE LICENSES offered for each DATASET.
ARTICLE 3. CONDITIONS OF ACCESS & REGISTRATION
(i) Acceptable Use Policy (“AUP”)
Each BENEFICIARY shall:
In the context of using the DOMAIN, BENEFICIARIES undertake not to violate public order and to comply with the existing laws and regulations, respect the rights of third parties and the provisions of this GTCs.
On DATASETS, BENEFICIARIES shall:
In the context of provision of its DOMAIN, THE TOWN shall:
ARTICLE 4. DISCLAIMERS AND LIMITATIONS OF LIABILITY
(i) General principles
The BENEFICIARY is solely and exclusively liable for its use of the DATASETS, and more generally of any content published on the DOMAIN. THE TOWN shall not be liable for any damage caused by the use of all or part of the DATASETS or content published on the DOMAIN by a BENEFICIARY.
OPENDATASOFT shall have no liability for any third-party site, including those accessible by hyperlink text, or DOMAIN created by THE TOWN, which USERS may access via the OPENDATASOFT PLATFORM.
THE TOWN shall have no liability for: - abnormal use or illicit operation of the DOMAIN; - use of the DOMAIN in violation of these GTCs; - any interruption or unavailability of the DOMAIN because of technical maintenance operations or disruption caused by web-based network outside THE TOWN’s control; - incomplete, out-of-date, erroneous, or misleading DATASETS; - lack of compatibility of the DOMAIN with BENEFICIARY’s hardware or software, for which the BENEFICIARY is solely responsible.
THE TOWN is only obligated to use commercially reasonable efforts to perform its obligations hereunder; it does not warrant, represent, or guarantee full, complete, or perfect performance.
The BENEFICIARY may seek liability from THE TOWN once he has notified THE TOWN of the alleged failure through a registered letter and received acknowledgment of receipt and if THE TOWN does not answer within thirty (30) days of the date of receipt. Either way, THE TOWN shall only be liable in case of proven fault.
THE TOWN MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE TOWN SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING TITLE, NON-INFRINGEMENT, OR ANY WARRANTY ARISING BY USAGE OF TRADE OR COURSE OF DEALING. ALL SERVICES ARE PROVIDED "AS IS.”
Furthermore, by the very nature of the Internet (interconnection of a multitude of independent users interacting with each other), no one can guarantee the overall functioning of networks from start to finish. THE TOWN will under no circumstances be held liable for any loss it is not the direct cause of.
Regardless of the legal action nature, THE TOWN will under no circumstances be held liable for an indirect damage of any kind, including without limitation, damages for lost profits, advantage, savings or revenues, third party loss, or action intended against the BENEFICIARY and its consequences, related to these GTCs or its enforcement. The BENEFICIARY is solely responsible for any loss, direct or indirect, material or immaterial, it or any of its employees causes to THE TOWN, to OPENDATASOFT or to third parties in connection with BENEFICIARY’S use of the OPENDATASOFT PLATFORM, the DOMAIN ant its functionalities.
It is expressly agreed between the PARTIES that the stipulations of this clause shall continue to apply even in the case of expiration or termination of this agreement.
(ii) ISP Status; DMCA
OPENDATASOFT undertakes to remove promptly any content that is manifestly illicit as soon as it shall have knowledge thereof. OPENDATASOFT may remove or disable access to any content without prior notice in connection with illegal content, where the content may disrupt or threaten the SERVICES, pursuant to the Digital Millennium Copyright Act (“DMCA”) or as required to comply with law or any judicial, regulatory, or other governmental order or request. DMCA take own notices may be directed to firstname.lastname@example.org
USERS acknowledge that OPENDATASOFT does not guarantee the validity, accuracy, or completeness of the DATASETS or other content disseminated by THE TOWN via their DOMAIN or via the PUBLIC SPACE.
THE TOWN is solely liable for the DATASETS, content, and services they offer BENEFICIARIES via the OPENDATASOFT PLATFORM.
ARTICLE 5. COMPLIANCE WITH LAW; INDEMNIFICATION
Without limiting the foregoing, each PARTY shall (i) comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control; and (ii) be responsible for properly handling and processing notices sent to it (or any of its affiliates) by any person claiming that DATABASES or other content violate such person’s rights, including notices pursuant to the DMCA.
BENEFICIARY will defend, indemnify, and hold harmless THE TOWN, its affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) BENEFICIARY’S use of the DOMAIN (including any activities
BENEFICIARY’S ACCOUNT and use by BENEFICIARY’s employees and personnel); (b) BENEFICIARY’S breach of this CONTRACT or failure to comply with applicable law; (c) Any content or the combination thereof with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by BENEFICIARY or other content, or by the use, development, design, production, advertising or marketing thereof; or (d) a dispute between BENEFICARY and any or other USER.
THE TOWN may disclose any content or information to government agencies as necessary to comply with the law or a binding order of a governmental body. Unless it would violate the law or a binding order of a governmental body, THE TOWN will give BENEFICIARY notice of any such legal requirement or order.
ARTICLE 6. INTELLECTUAL PROPERTY; PUBLICITY
The BENEFICIAIRY acknowledges that:
Any total or partial representation of the OPENDATASOFT PLATFORM, of the DOMAIN or its components, by any means whatsoever, without the express prior authorization of OPENDATASOFT or, as the case may be, of THE TOWN, with respect to DATASETS disseminated by their actions, is strictly prohibited, and shall constitute copyright infringement.
Moreover, THE TOWN expressly prohibits the following:
In using the OPENDATASOFT PLATFORM, the PARTIES shall comply with all applicable laws and regulations (including without limitation those regarding the protection of personal and other information), respect the rights of third parties, and comply with these General Terms and Conditions. Without limiting the foregoing, each PARTY shall be solely responsible for compliance with any of the following, to the extent they apply to the PARTY’s operations or to information possessed or made accessible by the PARTY: the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), payment card industry (“PCI”) data security standards, security standards for financial data developed pursuant to the Sarbanes-Oxley Act of 2002 (“SOX”) and for personal financial information pursuant to the Gramm-Leach-Bliley Act, Federal Trade Commission (“FTC”) requirements regarding the safeguarding of personal information, and the requirements of the Children’s Online Privacy Protection Act (“COPPA”).
ARTICLE 8. FORCE MAJEURE
Any failure to perform or partial performance by THE TOWN shall be excused to the extent that it arises in connection with a case of force majeure (i.e., matters beyond THE TOWN’S reasonable control), including without limitation hacking, unavailability of materials, supplies, hardware, peripherals, personal or other equipment; interruption, suspension, reduction, or disruptions of electricity or other inputs, or any interruptions of electronic communications networks.
ARTICLE 9. GENERAL PROVISIONS
The TOWN reserves the right to update and amend these GTCs at any time. BENEFICIARIES accessing the DOMAIN shall be bound by the version of the GTCs in effect at the time of such access.
No instruction or document not expressly contained in these GTCs shall have any applicability or effect, unless contained in a separate written agreement between the PARTIES.
This agreement between the PARTIES does not create any agency or employment relationship. The relationship between the PARTIES is that of independent contractors, vendor and customer.
The fact that one of the PARTIES may not have enforced one of the clauses of these GTCs shall not be construed as a waiver of said clause.
In the event of any difficulty of interpretation among any of the titles appearing in the article headings, and any one of the articles themselves, the titles will be deemed non-existent.
If any provisions of these GTCs is found to be unenforceable by a court of competent jurisdiction, it will be deemed inapplicable, but this will not in any way affect the validity of the other clauses, which shall remain fully applicable.
ARTICLE 10. APPLICABLE LAW; ARBITRATION
These GTCs are governed by the laws of the State of North Carolina without regard to choice of law provisions. Any court proceeding with regard to this CONTRACT shall be brought only in local or federal court in Raleigh, NC or Washington, DC. The parties waive any objections thereto with regard to jurisdiction, venue, or forum non conveniens and agree to waive, to the fullest extent allowed by law, any trial by jury.
In the event of disputes arising between the PARTIES regarding the interpretation, execution, or termination of these GTCs, the PARTIES shall strive to reach an amicable settlement through informal negotiations, failing which either PARTY may submit the dispute to arbitration with the other PARTY’s consent, or, absent such consent, seek any and all remedies available to it at law or equity.
Should THE TOWN and the BENEFICIARY agree to arbitrate any disputes arising out of or relating to this Agreement, the provisions of this paragraph shall apply. The arbitration of any CONTRACT dispute shall be conducted in accordance with the rules of the American Arbitration Association (“AAA”) as modified by this CONTRACT. The arbitration shall be adjudicated by one (1) arbitrator mutually designated by the PARTIES or appointed by the AAA if the PARTIES fail to so designate an arbitrator. THE TOWN and the BENEFICIARY acknowledge that this CONTRACT evidences a transaction in interstate commerce and that the United States Arbitration Act and Federal Arbitration Law shall govern the interpretation and enforcement of, and proceedings pursuant to this or a prior agreement. Unless THE TOWN and the BENEFICIARY agree otherwise, the location of any arbitration shall be in Raleigh, NC or Washington, DC. THE TOWN and the BENEFICIARY agree that no arbitrator has the authority to: (i) award relief in excess of what this CONTRACT provides; or (ii) award punitive or exemplary damages. The arbitrator must give effect to the provisions of this CONTRACT and the laws of the State of North Carolina without regard to choice of law provisions. Each party acknowledges that arbitration is final and binding and subject to only very limited review by a court. In such case, a judge shall decide the subject dispute or claim.