Terms of Services
Updated 17th February 2023
These Terms of Services are entered into between: Captain Data, a French joint stock company, having its registered office at 41-43 Quai de Malakoff, 44000, Nantes and registered with the Nantes Trade and Companies Register under number 838 098 598 represented by its President, Marc Francis (hereinafter "Captain Data”), and the company as identified for this purpose in the Client Account or in the Sales Quote, having accepted these Terms of Services (“TOS”), hereinafter referred to as the "Client”.
Captain Data and the Client may be referred to individually as a "Party" and collectively as the "Parties.
These Terms of Services are entered into by checking the box " I have read and accept the Terms of Services" via the Website https://www.captaindata.co/ and/or by signing the Sales Quote referencing to these Terms of Services.
Warning: Before checking the box "I have read and accept the Terms of Services" or signing the Sales Quote referencing these Terms of Services, you must carefully read these TOS in its entirety. By accepting these online TOS: You acknowledge that you have the legal capacity to legally bind the entity identified in the Client Account or in the Sales Quote and to enter into the TOS in a professional capacity in the name and on behalf of the Client.
https://www.captaindata.co/. is a Website offering automation services for professionals. This Website offers many functionalities allowing in particular to extract data from third-party services, create databases from this data and automate workflows on these third-party services. HOWEVER, CAPTAIN DATA HAS NO LINK OR COMMERCIAL RELATIONSHIP WITH THESE THIRD-PARTY SERVICES EVEN WITH THE ONES EXPRESSLY MENTIONED ON ITS WEBSITE. AS SUCH, THE CLIENT IS RESPONSIBLE FOR VERIFYING THAT IT HAS THE RIGHTS AND/OR AUTHORIZATIONS REQUIRED TO USE THE SERVICES OF CAPTAIN DATA IN CONNECTION WITH THESE THIRD-PARTY SERVICES. CAPTAIN DATA WILL HAVE NO RESPONSIBILITY IF ITS SERVICES ARE USED IN AN UNLAWFUL MANNER OR IN VIOLATION OF THIRD-PARTY RIGHTS.
The capitalized terms below have the following meanings when used in these TOS:
- Captain Data Databases: means any databases and sub-databases created by Captain Data and provided on its Website.
- Client Account: means any account created by the Client and assigned to the Client. The Client Account is accessible from the Website and is defined by a login and a password (hereinafter "Login Information"). The Client Account gives access to the Services.
- Client Data: means all data that:
- are sent to the Website by or for the Client through the use of the Services,
- and which are hosted in the Website.
Client Data includes in particular Data.
- Confidential Information: means all information disclosed by the Client to Captain Data or by Captain Data to the Client which is in tangible form and labeled “confidential” (or with a similar legend) or is information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, information relating to Captain Data Documentation. Notwithstanding the foregoing, Confidential Information will not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party from a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these TOS or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.
- Data: means any data collected by the Client (or its End-Users) from Third-Party Services using the Services.
- Databases: means any databases and sub-databases created by the Client using the Services.
- Data Protection Laws and Regulations: means the "European Regulation 2016/679, on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC" ("General Data Protection Regulation" or "GDPR") and any laws and regulations relating to the protection of Personal Data applicable under the TOS.
- Documentation: means any written or electronic documentation relating to the Services, including documentation accessible online via the Website. Documentation may change during the term of the TOS in accordance with these TOS.
- End User: means any natural person employed by the Client or authorized by the Client to use the Services, for whom the Client (or, if applicable, Captain Data at the Client's request) has provided a login and password.
- Force Majeure Event: means circumstances beyond Captain Data's reasonable control including, for example, natural disaster, action of governmental authorities, flood, fire, earthquake, civil disturbance, act of terrorism, strike or other labor-related problem (not involving Captain Data employees), failure or delay of internet providers, acts undertaken by third parties including but not limited to a denial-of-service attack.
- Free Trials: means the limited period during which a Client may test the Services free of charge. This period cannot be renewed or repeated. The duration of the applicable Free Trial is that indicated on the Website at the time of acceptance of these TOS.
- Personal Data: means any data corresponding to personal data, as defined in the General Data Protection Regulation.
- Sales Quote: means the order form which is signed by Client and which frames any particular conditions applicable to these Services including the chosen Services, the price, the date of commencement of Services and the duration of the contractual commitment.
- Services: means access to the Website and its features. The Services are described in the Section "Description of Services".
- Subscription Term: means the period during which Client has subscribed to the Services. This period could be (i) the period of the Free Trial and/or (ii) the period of the contractual commitment indicated in the Sales Quote.
- Third-Party Services: means (i) any software application or other functionality of a software application or any database or service or system, (ii) provided by Client or a third party (iii) with which the Services may interact.
- TOS: means these TOS, including all of its Exhibit and Appendix.
- Website: means the Website accessible at the URL: captaindata.co, any successor website or mobile application that allows access to the Services.
2.WHAT IS THE PURPOSE OF THE TOS?
2.1. Purpose of the TOS
2.2. Entry into force
These TOS will enter into force on the date the Client accepts it online by checking the box "I have read and accept to the “Terms of Services" and/or on the date of the execution of the Sales Quote by the Client (the "Effective Date").
3. HOW TO USE THE SERVICES
3.1. Legal requirements
THE CLIENT IS INFORMED THAT THE USE OF THE SERVICES REQUIRES IT TO ACT AS A PROFESSIONAL, WHICH THE CLIENT ACKNOWLEDGES AND GUARANTEES. WHEN USING THE SERVICES, CLIENT IS INFORMED THAT IT IS ITS RESPONSIBILITY TO PROCEED TO ALL THE NECESSARY VERIFICATIONS CONCERNING THE RIGHTS AND AUTHORIZATIONS TO USE THE SERVICES FOR THIRD-PARTY SERVICES. CAPTAIN DATA DOES NOT CARRY OUT ANY VERIFICATION.
3.2. Technical prerequisites
THE CLIENT IS INFORMED THAT THE WEBSITE REQUIRES A BROADBAND INTERNET CONNECTION AND AN UP-TO-DATE WEB BROWSER.
3.3. THE CLIENT IS INFORMED THAT CAPTAIN DATA WILL NOT VERIFY COMPLIANCE WITH THE REQUIREMENTS DESCRIBED IN THIS SECTION: THE CLIENT ACKNOWLEDGES AND AGRESS THAT IT IS ITS RESPONSIBILITY TO DO SO.
3.4. Access to the Services
The Client's access to the Services is effective after the following steps:
- acceptance of these TOS; and
- the connection to Client Account using the Login Information.
After the Free Trial, the access to the Services requires Client to subscribe to the Services via a Sales Quote.
3.5. Description of the Services
Captain Data agrees to maintain the following key features:
- enable the Client, under its own control, the extraction of Data from Third-Party Services either on the basis of preexisting workflows provided in the Services or on the basis of rules to be implemented by the Client;
- enable the Client, under its own control, the automation of any action on Third-Party Services either on the basis of preexisting workflows provided in the Services or on the basis of rules to be implemented by the Client;
- enable the Client, under its own control, the enrichment of extracted Data with the Client's own Data for Database creation; and
- host the Data and Databases thus created by the Client, under its own control.
3.6. Purpose of the Services
The Services are intended to be used by the Client and its End Users for the purpose of allowing the Client to automate any task on a Third-Party Service, to the extent that such automation is lawful. FOR CLARIFICATION PURPOSES, THE CLIENT CANNOT CARRY OUT ANY AUTOMATION THAT WOULD INFRINGE ON A THIRD-PARTY’S RIGHT. The purpose as defined in this Section will hereinafter be referred to as "Purpose".
3.7. Provision of the Services
Subject to the Client’s use of the Services in accordance with these TOS, the Documentation, the Purpose and applicable laws and regulations and for the Subscription Term, Captain Data undertakes as a best-effort obligation to:
(a) make the Services and the Client Data and Databases available to the Client in accordance with these TOS;
(b) make commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for (i) unavailability resulting from corrective or evolutionary maintenance operations and (ii) unavailability caused by a Force Majeure Event. Captain Data will endeavor to inform the Client in advance of any unavailability as defined in (i) above, within a reasonable time, indicating the expected date of maintenance operations;
(c) provide the Services in accordance with the laws and regulations that are applicable to Captain Data in general, taking into account the Purpose of the Services. For the avoidance of doubt, Captain Data will not be able to comply with the said laws and regulations in the event that the Client fails to comply with the terms of these TOS, including its obligation to use the Services in accordance with their intended Purpose.
3.8. Renewal of the Services
Access to the Services through the contractual commitment indicated in the Sales Quote will be renewed automatically at the end of the Subscription Term, for the same price (unless the price standards have evolved), or a modified price accepted by the Client, unless a Party has notified to the other Party that it wishes to end the Services, in writing or via the tool to this effect in the Services.
3.9. Free trials
If the Client registers for a Free Trial for the Services, Captain Data will make such Services available to the Client on a trial basis free of charge until the earlier of (a) the end of the free trial period for which the Client registered to use the applicable Services; (b) the start date of any subscription to such Services purchased by the Client. Any Client Data entered into such Services, and any configuration or customizations made to such Services by or for the Client, during its Free Trial, will be permanently lost unless the Client purchases a subscription on a pay basis for the applicable Services. Client agrees not to create multiple Client Accounts in order to benefit from this Free Trial two or more times.
The Client acknowledges and accepts that the Services, including their functionalities, may evolve during the Subscription Term. The evolution of the Services may cause the Documentation to evolve during the Subscription Term, which Client acknowledges and accepts.
3.11. Client's Obligations
(a) The Client will use the Services in compliance with the applicable laws and regulations (in particular the Data Protection Laws and Regulations) and the Documentation;
(b) The Client will be responsible for End User's compliance with these TOS and the Documentation;
(c) The Client will be responsible for compliance with all laws and regulations applicable to End User's use of the Services (including, without limitation, the Data Protection Laws and Regulations);
(d) The Client will prevent any unauthorized use of and access to the Services, Client Data and will promptly notify Captain Data in writing of any such unauthorized access or use;
(e) The Client will respect all intellectual property rights relating to the Website, its components and the Services, in particular its software elements, its graphic charter, its brands, works or designs; and
(f) The Client will respect all intellectual property rights held by third parties, including those of Third-Party Services.
3.12. Usage Restrictions
The Client agrees not to:
(a) violate the terms of the "License to Use the Services" and "Database Protection" Sections; by way of example, the Client will not license, sublicense, sell, assign, resell, rent, lease, loan, transfer, assign, distribute, share, copy the Services, or all or any part of the Website, including on a time-sharing basis, or in any other way commercially exploit the Services or make them available to third parties other than End Users;
(b) modify, adapt, or hack the Services or any part of the Website or otherwise attempt to gain unauthorized access to the Services (or any part of the Website) or related systems or networks;
(c) use the Services or any part of the Website to store, transmit, upload, link to, post or otherwise store any material (e.g., documents, data, text, images or other content) that is unlawful, racist, hateful, abusive, defamatory, obscene, libelous, deceptive, unfair, inaccurate/misleading, discriminatory, or in any way violates these TOS, any applicable laws and regulations, including, without limitation, laws and regulations applicable to the Services, the Data Protection Laws and Regulations, intellectual property law;
(d) use the Services or any part of the Website in any manner that interferes with or disrupts the integrity or performance of the Services and their components;
(e) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Services or all or part of the Website, except as permitted by the French Intellectual Property Code;
(f) use the Services or any part of the Website for any purpose other than its Purpose;
(g) use the Services or any part of the Website in a manner that harms (or is likely to harm) any third party
(h) use the Services or all or part of the Website to store or transmit any sensitive data within the meaning of Article 9 of the GDPR;
(i) use the Services or any part of the Website to post, transmit, upload, link to, send or store any virus, malware, Trojan horse, time bomb or other similar harmful software ("Malicious Software");
(j) use or launch any automated system that accesses all or part of the Services (i.e., bot) in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in that same time period, by using a conventional online web browser; or
(k) attempt to use or use the Services in violation of this Section.
3.13. Confidentiality of Login Information
Client is responsible for compliance with the terms of these TOS by its End User(s). The Client agrees and acknowledges that each End User will be identified by a Login Information and that such Login Information may only be used by one (1) individual. The Client is responsible for maintaining the confidentiality of the Login Information.
3.14. Personal Data
The terms and conditions under which Captain Data processes Personal Data on behalf of the Client are detailed in the Data Protection Agreement in Exhibit A of these TOS. Acceptance of these TOS constitutes acceptance of this Data Protection Agreement and all appendices.
Captain Data reserves the right to periodically verify that the Client’s use of the Services complies with these TOS. Should Captain Data discover that the Client’s use of a Service is not in compliance with these TOS, Captain Data reserves the right to charge the Client, and the Client hereby agrees to pay for the said usage in addition to other remedies available to Captain Data.
4. WHICH INTELLECTUAL PROPERTY RIGHTS ARE GRANTED TO EACH PARTY?
4.1. License to use the Services granted by Captain Data
During the Subscription Term and subject to the Client’s compliance with these TOS, Captain Data grants the Client a limited right to access and use the Services, in accordance with their intended Purpose. This right is non-transferable and is granted on a non-exclusive basis, for the Subscription Term, worldwide.
4.2. License granted by Client on Client Data and Databases
The Client grants Captain Data, and any applicable subcontractors, a worldwide license, for the Subscription Term, to host, copy, use, transmit and display the Client Data and Databases in order to enable Captain Data to provide and operate the Services under these TOS.
4.3. License on suggestions, enhancement requests, workflows, recommendations or other feedback
Captain Data will have a royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable license for the legal term of copyright protection to implement, use, modify, commercially exploit and/or incorporate into the Services or otherwise use any suggestions, enhancement requests, workflows, recommendations or other feedback that Captain Data receives from Client or its End Users.
4.4. Protection of Captain Data Databases
Captain Data Databases are protected by copyright.
The Client acknowledges the scale of the investments made by Captain Data in order to develop Captain Data Databases. The Client acknowledges that Captain Data has taken the initiative to create and develop Captain Data Databases. The Client acknowledges that in addition to the quality of Captain Data as author of Captain Data Databases with an original nature, the latter has the quality of producer of databases and has the rights that are conferred to it as such by the French Intellectual Property Code. In its capacity as producer of Captain Data Databases, Captain Data in principle prohibits to the Client who accepts it:
(a) the extraction, by permanent or temporary transfer of all or a qualitatively or quantitatively substantial part of the contents of Captain Data Databases onto another medium, by any means and in any form whatsoever;
(b) reuse, by making available to the public all or a qualitatively or quantitatively substantial part of the contents of Captain Data Databases, in whatever form; and
(c) the repeated and systematic extraction or reuse of qualitatively or quantitatively non-substantial parts of the content of Captain Data Databases beyond the normal conditions of use of Captain Data Databases.
5. WHAT CONFIDENTIALITY OBLIGATIONS?
5.1. Protection of Confidential Information
Subject to the express permissions of these TOS, each Party will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to these TOS, each Party may use each other’s Confidential Information solely to exercise its respective rights and perform its respective obligations under these TOS and shall disclose such Confidential Information (a) solely to the employees and/or non-employee service providers and contractors who have a need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information; (b) as necessary to comply with an order or subpoena of any agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this “Confidentiality” Section will supersede any non-disclosure agreement by and between the Parties and such agreement will have no further force or effect.
6. WHAT RESTRICTIONS TO USE OF THIRD-PARTY SERVICES?
6.1. Liability exclusion relating to Third-Party Services
When the Client uses Third-Party Services, it is advised that its access and use of such Third-Party Services are governed solely by the terms and conditions of such Third-Party Services. Captain Data does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Third-Party Services, including, without limitation, their content or the manner in which they handle, protect, manage or process data (including Data) or any interaction between the Client and the provider of such Third-Party Services. Captain Data cannot guarantee the continued possibility to use its Services in connection with such Third-Party Service and may prohibit the use of the Services for such Third-Party Services without entitling the Client to any refund, credit, or other compensation. The Client irrevocably waives any claim against Captain Data with respect to such Third-Party Services. Captain Data is not liable for any damage or loss caused by or in connection with the Client’s access or use of any such Third-Party Services, for example with regards to the terms, privacy or data security policies of such Third-Party Services. Captain Data will not be liable if the Client is banned or sanctioned by Third-Party Services following its use of the Services.
6.2. Responsibility of the Client
The Client is solely responsible for the Third-Party Services on which it uses Services. The Client warrants Captain Data that it has the rights and/or authorizations to collect the Data on Third-Party Services and that such collection complies with application law and regulations.
6.3. Authorization of communication with Third-Party Services
The Client may be required to register for or log into such Third-Party Services on their respective websites. By enabling any Third-Party Services, the Client is expressly permitting Captain Data to interact with such Third-Party Services and Client is permitting Captain Data to obtain Data from such Third-Party Services as necessary to provide the Services.
7. HOW TO TERMINATE THE TOS?
7.1. Duration of TOS
These TOS are entered into for the Subscription Term and will terminate upon termination as hereinafter provided. The Subscription Term will depend on whether the Client has signed up for a Free Trial or via a Sales Quote.
7.2. Suspension of Services
Captain Data reserves the right to limit the Services, or temporarily suspend access to all or part of the Services, if Captain Data detects or has objective evidence to assess that:
(a) the Client has failed to comply with the obligations stipulated in Sections “Legal requirements”, "Prerequisites", "Client’s Obligations" or "Usage Restrictions" of these TOS;
(b) the Client's use of the Services is unusually high or has substantially increased and such traffic or use is fraudulent or has a significative negative impact on the ability of the Services to operate;
(c) Malicious Software is connected to the Client Account or is related to the Client's use of the Services;
(d) the Client's use of the Services threatens the security, integrity or availability of the Services; and
(e) the Subscription Fee has not been paid by the due date.
Depending on the circumstances, Captain Data may, at its sole discretion, immediately suspend the Client's access to the Services or notify the Client by email in advance of such suspension to give the Client the opportunity to remedy the causes, if any.
7.3. Termination of material breach
Either Party may terminate these TOS as of right for material breach. The Client acknowledges that the Client's failure to comply with its obligations under Sections "Obligations of Use" and "Usage Restrictions”, "Legal requirements" and the causes of suspension set forth in Section "Suspension of Services" are examples of material breach. Termination for material breach by Captain Data is performed by notifying the Client by email. Termination under this Section will take effect upon sending such notice. The Client may terminate these TOS as set forth below.
7.4. Termination by the Client
The Client may terminate these TOS at any time without notice but such termination will only be effective at the end of the Subscription Term.
7.5. Effect of termination on Subscription Fees
Regardless of the cause of termination, the Subscription Fees for the Subscription Term at the date of termination will be due in full, which the Client acknowledges and agrees.
7.6. Non-Performance or defective performance of TOS
The Client's sole and exclusive remedies for non-performance or defective performance by Captain Data of its obligations under these TOS will be exclusively as set forth in these TOS.
8. WHAT ARE THE PAYMENT'S TERMS?
8.1. Billing Frequency and late payment
The price of the subscription to the Services ("Subscription Fee") is debited either:
(a) Annually - for the first time on the Effective Date, and then automatically each year on that same date.
(b) Monthly - for the first time on the Effective Date, and then automatically each month on that same date.
Non-payment on the due date will automatically result in suspension of the paid Services. The amount of the Subscription Fee is as indicated in the Sales Quote. As an exception, there is no Subscription Fee during the Free Trial.
8.2. Terms of payment
Payment can only be made by credit card, wire transfer or SEPA transfer, which the Client acknowledges and accepts. If the Client fails to pay its Subscription Fee on the due date, these Subscription Fees may bear interest at the rate of three (3) times the French legal interest rate for this amount per month and an additional fixed amount of forty (40) euros will automatically be due by the Client as a lump sum compensation for the recovery costs payable by the creditor in the event of late payment.
Unless otherwise specified, the Subscription Fees are subject to VAT.
8.3. Rate Changes
The Subscription Fee may be increased annually by no more than 30% over the current rate.
9.WHAT IS THE RESPONSIBILITY OF EACH PARTY?
9.1. SCOPE OF REPARABLE DAMAGES
EACH PARTY WILL BE LIABLE TO THE OTHER PARTY FOR DAMAGES HAVING THE CUMULATIVE CHARACTERISTICS OF BEING DIRECT, PERSONAL, CERTAIN AND FORESEEABLE, SUFFERED IN CONNECTION WITH THESE TOS.
9.2. EXCLUDED DAMAGES
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY OF THE FOLLOWING CATEGORIES OF DAMAGES INCURRED IN CONNECTION WITH THESE TOS: INDIRECT DAMAGES, DAMAGES THAT ARE NOT PERSONAL, UNCERTAIN DAMAGES, UNFORESEEABLE DAMAGES, COMMERCIAL DAMAGES (E.G., LOSS OF PROFITS, LOSS OF SALES OR BUSINESS, LOSS OF GOODWILL), FINANCIAL LOSS (INCLUDING LOST EARNINGS OR LOSS OF OPPORTUNITY TO REALIZE SUCH REVENUES), OR COST OF REPLACEMENT SERVICES, OR DAMAGES TO IMAGE OR REPUTATION. CAPTAIN DATA SHALL NOT BE LIABLE TO THE CLIENT FOR ANY OF THE FOLLOWING CATEGORIES OF DAMAGES INCURRED IN CONNECTION WITH THESE TOS: DAMAGES IN CONNECTION WITH CLIENT'S VIOLATION OF APPLICABLE LAWS AND REGULATIONS, OR DAMAGES IN CONNECTION WITH CLIENT'S MISUSE OF THE SERVICES OR USE OF THE SERVICES NOT IN ACCORDANCE WITH THE DOCUMENTATION OR PURPOSE, OR DAMAGE IN CONNECTION WITH A FAULT OR NEGLIGENCE ATTRIBUTABLE DIRECTLY OR INDIRECTLY TO THE CLIENT (INCLUDING ITS END USERS), DAMAGES TO THE CLIENT DATA WHEN IT IS OUTSIDE THE WEBSITE.
FURTHERMORE, CAPTAIN DATA WILL NOT BE LIABLE FOR ANY DAMAGES RESULTING DIRECTLY OR INDIRECTLY FROM CLIENT'S FAILURE TO COMPLY WITH THESE TOS, SUCH AS, BUT NOT LIMITED TO, FAILURE TO COMPLY WITH THE "REQUIREMENTS" SECTION, THE "CLIENT’S OBLIGATIONS" SECTION, THE "USAGE RESTRICTIONS" SECTION. CAPTAIN DATA WILL NOT BE LIABLE FOR ANY DAMAGES RESULTING DIRECTLY OR INDIRECTLY FROM USING THE SERVICES WITH A THIRD-PARTY SERVICE WHICH DOES NOT AUTHORIZE IT.
9.3. LIMITATION OF LIABILITY. THE TOTAL RESPONSIBILITY OF CAPTAIN DATA UNDER THIS TOS, WILL IN NO EVENT EXCEED THE AMOUNT PAID BY THE CLIENT DURING THE TWELVE (12) LAST MONTHS FOLLOWING THE INCIDENT HAVING GIVEN PLACE TO THE ENGAGEMENT OF ITS RESPONSIBILITY
THE CLIENT ACKNOWLEDGES AND AGREES THAT THE PURPOSE OF THIS "LIMITATION OF LIABILITY" SECTION IS TO ALLOCATE THE RISKS UNDER THESE TOS BETWEEN THE PARTIES AND TO LIMIT THE POTENTIAL LIABILITY CONSIDERING THE SUBSCRIPTION FEE FOR THE SERVICES. CAPTAIN DATA HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO GRANT THE CLIENT THE RIGHT TO ACCESS AND USE THE SERVICES UNDER THESE TOS.
9.4. LIMITATION OF LIABILITY FOR THE FREE TRIAL
DURING THE FREE TRIAL, THE TOTAL RESPONSIBILITY OF CAPTAIN DATA FOR THE PROVISION OF THE SERVICES WILL IN NO EVENT EXCEED THE SUM OF one thousand (1000) EUROS. The Client acknowledges and agrees that such limitation is liability is valid due to the provision of the Services free of charge during the Free Trial.
9.5. Liability cap exclusions
The above liability cap does not apply to death and personal injury.
9.6. Scope of responsibility
It is reminded that Captain Data provides a technical tool and is not responsible for the use that its clients will make of it. Consequently, Captain Data acts as a host in the sense of the applicable regulations for the Data and Databases of its clients. It should be noted that Captain Data does not offer any guarantee on the lawfulness of the possible uses of its Services. In particular, the integration of a trademark of a Third-Party Service or the provision of a specific workflow for a Third-Party Service does not mean that Captain Data guarantees that it has any right/authorization to use its Services on these Third-Party Services.
10. WHAT COMPENSATION IN CASE OF A THIRD-PARTY CLAIM?
10.1. Indemnification by Captain Data
Captain Data shall defend the Client against any claim alleging that the software elements of the Services infringe any third-party copyright and shall indemnify the Client for any amounts finally awarded against the Client in final judgment or signed settlement of such claims. Captain Data will have no liability or obligation under this Section if such claim is caused in whole or in part by (i) compliance with data or instruction provided by the Client; (ii) modification of the Services by anyone other than Captain Data; (iii) the combination, operation of use of the Services with Third-Party Services where the Services would not by themselves be infringing; and/or (iv) during the Free Trial. This Section states the sole, exclusive and entire liability of Captain Data to the Client and constitutes the Client’s sole remedy with respect to such claim by reason of access or use of the Services by Client or its End Users.
10.2. Indemnification by the Client
The Client will indemnify and hold Captain Data harmless from any claim by a third party against Captain Data alleging that the Client usage of the Services, Data or Databases infringe applicable third-party rights, such as copyrights (a "Third Party Claim") as hereinafter provided. The Client will, at its own expense, defend Captain Data against any such Third-Party Claim and pay any damages Captain Data is ordered to pay in connection therewith, as well as fees and expenses (including lawyer fees) incurred by Captain Data in connection with such defense, and amounts paid in settlement under the Civil Code, provided that:
(a) Captain Data will promptly notify the Client of the notification of such Third-Party Claim;
(b) the Client will have control and authority to select defense attorney, conduct the defense and/or settle any such Third-Party Claim (provided, however, that the Client will not settle any claim involving Captain Data's liability or admission of any liability without Captain Data's prior written consent); and
(c) Captain Data will cooperate with the Client in connection therewith.
11. FINAL CLAUSES
Legal Capacity. Each Party represents that it has validly entered into these TOS and has the legal authority to do so.
Non-solicitation. Client waives the right to hire or have employed, directly or through an intermediary, any employee of Captain Data, even if the initial solicitation is made by the employee. This waiver is valid for the entire duration of these TOS, plus twelve (12) months from the termination of the TOS. In the event that Client does not respect this commitment, it undertakes to compensate Captain Data by immediately paying it a lump sum equal to the gross annual remuneration of the employee in question.
Assignment of TOS. The Client hereby expressly consents in advance that Captain Data may assign or otherwise transfer these TOS to any third party of its choice.
Entire Agreement. These TOS constitute the entire agreement between the Parties and supersedes any prior agreement(s) between the Client and Captain Data regarding the subject matter hereof.
Modification of TOS. Captain Data may amend these TOS from time to time, in which case the modified TOS will supersede the prior version. Captain Data will notify the Client at least fifteen (15) days prior to the effective date of any such amendment in order to enable the Client to object, if necessary. If the Client does not object within said 15-day period, the Client will be deemed to have accepted the new version of the TOS. If the Client objects, the Client may terminate the TOS without notice. If the Client objects within the time limit, the unamended TOS will remain applicable.
Severability. If any provision of these TOS is held by a court of competent jurisdiction to be unenforceable, the remaining provisions of these TOS will remain in effect to the extent permitted by law.
Relationship between the Parties. The Parties are independent contractors. In particular, the Client acknowledges that it acts independently and that there is no link between the latter and Captain Data, including the order of a subordination, collaboration, company created in fact or in participation, an agency contract. Accordingly, the Client expressly waives, definitively and in advance to initiate against Captain Data any judicial or extrajudicial action based on a challenge to the independence of the Client from Captain Data.
Notice. Except as otherwise provided herein or as otherwise required by law, the terms "notice" or "notify" or "notify" when used in these TOS will mean a notification made under the conditions defined below. All notices provided by the Parties under these TOS may be delivered in writing (i) by email to firstname.lastname@example.org or to the email address of Client as provided by Client as the email address upon subscription to the Services; (ii) with respect to any notice by Client to Captain Data under the "Data Processing Agreement" Exhibit, such notice may be sent by registered letter with acknowledgement of receipt to the mailing address of Captain Data's principal place of business (Captain Data, 55 rue des Francs-Bourgeois, 75004, Paris, France) with a simultaneous email to email@example.com.
Business reference. Captain Data reserves the right to mention the existence and purpose of these TOS as a business reference by disclosing the Client's corporate name, which Client agrees.
Governing Law. THESE TOS ARE GOVERNED BY THE LAWS OF FRANCE. For clarity, the United Nations Convention on contracts for the International Sale of Goods will not apply to these TOS.
Survival. The following sections survive termination of the TOS: "Confidentiality" and "Limitation of Liability".
Venue. ANY DISPUTE ARISING FROM THESE TOS WILL BE RESOLVED BY THE COMPETENT COURTS OF PARIS, FRANCE.
Schedules. The TOS includes the following schedules:
Exhibit A: Data Processing Agreement
Appendix 1: Processing Description.
Appendix 2: List of Sub-Processor.
Appendix 3: Standard contractual clause