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TERMS AND CONDITIONS - CAPSYRA BV

Article 1 – SCOPE OF APPLICATION

  1. Present terms and conditions apply throughout the entire duration of the commercial relationship between Capsyra, a private limited company with registered office at Dehemlaan 31, 8900 Ypres, with company number 1028.707.566 ("Capsyra BV") and the Client. In the event of conflict between these general terms and conditions and any special terms and conditions of Capsyra BV, the latter shall prevail.
  2. Present terms and conditions apply to all offers, quotations, agreements and services between Capsyra BV and the Client, unless expressly agreed otherwise in writing.
  3. Deviations from these terms and conditions can only be made in writing and with the approval of Capsyra BV.
  4. The applicability of any general terms and conditions of the Client is expressly excluded.
  5. Capsyra BV reserves the right to amend these terms and conditions. Amendments shall be communicated to Client at least two (2) months before taking effect.
  6. Present terms and conditions govern the use of the Capsyra platform and the related services for custody and compliance monitoring, provided by Capsyra BV. By creating an account or using Capsyra BV’s services, you accept these terms and conditions.
  7. The agreement is concluded when the Client accepts Capsyra BV's offer in writing, by electronic means, or by commencing use of the services and uploading data to Capsyra BV.

Article 2 – DEFINITIONS

  1. Capsyra BV: a private limited company under Belgian law, with registered office at Dehemlaan 31, 8900 Ypres, registered in the Crossroads Bank for Enterprises under company number 1028.707.566.
  2. Client: the natural person or legal entity that enters into an Agreement with Capsyra BV for the use of the Services.
  3. Agreement: the agreement between Capsyra BV and Client for the provision of Services, to which these general terms and conditions apply.
  4. Services: the services provided by Capsyra BV to Client, consisting of:
    • Custody of Data
    • Full compliance relief with active monitoring and follow-up;
    • Technical infrastructure and security.
  5. Data: all information, documents and data uploaded, stored or processed by Client through the Capsyra BV platform.
  6. OmniCapsule: the technical unit in which Data is stored after encryption, distributed across Capsyra’s European infrastructure partners.
  7. Custody Period: the agreed period for which the full Services are provided.
  8. Encryption Keys: the public/private key pair used for the encryption and decryption of Data.

Article 3 – SERVICES

  1. Capsyra BV provides data custody and compliance monitoring services as agreed with Client. The specific scope and nature of Services shall be set out in the Agreement between Capsyra BV and Client.
  2. Capsyra BV commits to the professional and secure custody of Client’s Data during the Custody Period, whereby:
    • All Data is immediately encrypted upon upload using a symmetric key, which is again encrypted using a public/private key pair;
    • Encrypted Data is stored as OmniCapsules and distributed across our partners with European infrastructure;
    • All transmissions take place via fully encrypted connections using TLS 1.3 or higher protocols;
    • ccess control is applied in accordance with the parameters set by Client;
    • Detailed audit trails are maintained of all actions relating to the Data in accordance with applicable legal and regulatory requirements;
    • Data is stored securely with redundancy and backup systems as agreed with Client to ensure availability and integrity.
  3. Capsyra BV provides full compliance relief through:
    • Continuous compliance with and monitoring of all applicable laws and regulations affecting the Services and Capsyra BV’s obligations relating to the custody of Data.
    • Proactive identification of regulatory changes affecting the Services or Client’s position;
    • Timely implementation of necessary adjustments to systems and processes;
    • Periodic reporting to Client and, where required, to supervisory authorities.
  4. Capsyra BV undertakes to comply with all applicable laws, regulations and codes of conduct applicable to data storage and service providers engaged in data processing activities.
  5. Client shall provide all information and cooperation reasonably required by Capsyra BV for the performance of the Services. Client warrants that all information provided is accurate, complete and up to date, and shall notify Capsyra BV immediately of any changes. Client is responsible for the secure storage of login credentials and, in the event Client chooses to download and delete the private encryption key from Capsyra BV’s system, for the secure storage of such private encryption key.

Article 4 – OWNERSHIP, SECURITY AND PROTECTION OF DATA

  1. Data remains the full and unencumbered property of Client at all times. Capsyra BV acquires only such custody and management rights over the Data as are necessary for the performance of Services under the Agreement, not ownership rights. The Client may choose to either (i) retain the private encryption key within Capsyra BV’s system, in which case Capsyra BV shall maintain custody of such key in accordance with the security measures set out in Article 3, or (ii) download and delete the private encryption key from Capsyra BV’s system, in which case the private encryption key remains under Client's exclusive control and Capsyra BV cannot decrypt Data without Client's cooperation. Client bears full responsibility for the safekeeping of the private encryption key in the event Client chooses to download and delete it from Capsyra BV's system.
  2. Each Client has absolute security over their Data through strict individualization, segregation from Capsyra BV's data and from the data of other clients.
  3. Capsyra BV will apply appropriate technical and organisational security measures in accordance with industry standards and applicable regulations.
  4. Capsyra BV won’t use Client’s Data for any purpose other than the provision of Services under the Agreement. Capsyra BV won’t disclose Client’s Data to third parties, modify, alter or delete Client’s Data except as instructed by Client.

Article 5 – FEES AND PAYMENT

  1. The fee for the Services shall be paid by the Client in advance for the entire Custody Period and becomes due upon the signing of the Agreement. The amount of the fee is determined by the storage duration and the volume of Data to be stored, as agreed in the specific provisions of the Agreement.
  2. The fee for the Custody Period includes custody and management of Data, full compliance relief with active monitoring and follow-up, technical infrastructure, encryption and security, and periodic reporting.
  3. Additional costs such as costs for consultancy services requested by Client outside the scope of standard Services shall be charged separately.
  4. The advance payment of the fee enables Capsyra BV to make the necessary investments and commitments for the entire Custody Period. For this reason, fees paid are under no circumstances recoverable, regardless of the reason for termination of the Agreement or the extent to which the Services have been used.
  5. All costs, charges and taxes related to the payment of the fee are borne by the Client. Capsyra BV has the right to separately charge any additional costs directly related to the provision of the Services, including but not limited to costs arising from data egress not in line with normal use.

Article 6 – TERM AND TERMINATION

  1. The Agreement is entered into for a definite Custody Period commencing on the date of upload of the Data. Either Party may terminate the Agreement in writing by giving at least six (6) months’ prior written notice to the other Party. The notice period commences on the first day of the month following receipt of termination.
  2. Upon early termination by the Client, fees already paid for the Custody Period are not refunded under any circumstances. The full fee remains due without any refund, compensation, set-off or damages. This applies regardless of the reason for termination, the duration elapsed, whether Services were used, or changes in Client's circumstances. This provision is an essential term of the Agreement as Capsyra BV makes investments and enters into commitments for the full Custody Period based on the advance payment.
  3. Parties are entitled to terminate this Agreement with immediate effect, without any court intervention and without any form of compensation, indemnification or notice period being due, by means of a registered letter addressed to the other Party, in the event of a judicial reorganisation, liquidation procedure or obvious insolvency on the part of the other Party.

Article 7 – LIABILITY

  1. Capsyra BV shall perform the Services with due care and in accordance with the standards reasonably expected from a professional service provider in similar circumstances. Capsyra BV shall perform the Services on a best efforts basis and does not guarantee any specific result or performance level unless expressly agreed otherwise in writing.
  2. Capsyra BV shall in no event be liable for any indirect damages, including but not limited to consequential damages, loss of profits, loss of revenue, loss of goodwill, business interruption, or any other form of damage that is not a direct and immediate result of Capsyra BV’s fault.
  3. Capsyra BV shall only be liable for direct and material damage that is causally linked to an attributable gross or intentional fault on its part in the performance of the Agreement. Client bears the risk of loss, corruption or destruction of Data in the event of (i) loss or compromise of Client's private encryption key, (ii) Client's failure to maintain adequate security measures for access credentials, (iii) circumstances beyond Capsyra BV's reasonable control, or (iv) Client's breach of the Agreement. Client shall indemnify Capsyra BV against third-party claims arising from Client's use of Services or the content of the Data stored. Client remains solely responsible for ensuring the continued readability and accessibility of the Data, including the use of file formats that remain compatible with future software versions.
  4. In no event shall the liability of Capsyra BV for direct damages exceed (i) the amounts actually recovered and paid out by Capsyra BV’s professional indemnity insurance in respect of the specific claim giving rise to the liability; or (ii) to the extent the insurance coverage is unavailable or is denied by the insurer for any other reason, the amount paid by the Client in the twelve (12) months immediately preceding the date of the event giving rise to the liability.

Article 8 – FORCE MAJEURE – HARDSHIP – AUXILIARIES

  1. Force majeure is the situation in which the performance of the Agreement by Capsyra BV is wholly or partially, whether or not temporarily, prevented by circumstances beyond Capsyra BV's reasonable control. Force majeure includes wars, mobilisations, natural disasters, fire, epidemic, pandemic, difficulties in the supply of energy, widespread power or network outages, strikes, restrictions and economic measures imposed by the government, and any other external circumstance that reasonably prevents the performance of the Services within the intended period.
  2. Hardship refers to any change in circumstances, beyond the reasonable control of Capsyra BV, that seriously hinders the performance of Capsyra BV’s services and/or causes disproportionate damage to its interests. There is no need to prove that hardship is unforeseeable, unavoidable, and/or inevitable.
  3. Capsyra BV will notify the Client within a reasonable period of the force majeure or hardship.
  4. All cases of force majeure and/or hardship, as well as all circumstances that prevent the performance of the Services, release Capsyra BV from the obligation to perform the Services for as long as the impediment lasts. In the case of hardship, Capsyra BV has the right to demand that the Client negotiates alternative fair clauses in good faith to remedy the unforeseen circumstances.
  5. If the impediment continues for longer than three (3) consecutive months, Capsyra BV is entitled to terminate the Agreement without judicial intervention but by means of a simple written notification to Client and without Client being able to derive any right to compensation of any kind whatsoever.
  6. In the case of force majeure on the part of the Client, lasting longer than three (3) consecutive months, Capsyra BV is also entitled to request or invoke the dissolution of the Agreement without liability and without any obligation to pay compensation.
  7. The Parties exclude the application of article 6.3, §2 of the new Belgian Civil Code. Consequently, the Parties will never hold the auxiliaries in the broad sense (such as employees, directors, or any other appointee) liable for any legal acts or factual acts performed in the execution of the Agreement, and the Parties waive any legal action in this regard to the extent necessary. The Parties will in any case mutually indemnify each other for any claim or action brought by any auxiliary against the other Party or its auxiliaries. The Parties accept that contractual damage can never be a ground for a claim based on non-contractual liability. The Parties mutually accept that in any case, the auxiliaries of the contracting Party can invoke the same defences as provided by the Agreement. The Parties will unconditionally respect the existing legal and contractual limitations of liability and will also impose these limitations in their respective contractual relationships with third parties. The provisions included in this clause are in force for the entire duration of the Agreement and remain in force after its termination.

Article 9 – INTELLECTUAL PROPERTY

  1. Capsyra BV retains all intellectual property rights in the Capsyra platform, software, technology, documentation and materials provided by Capsyra BV.
  2. Client is granted a non-exclusive, non-transferable licence to use the Capsyra platform and related materials solely for the purpose of receiving Services during the term of the Agreement.
  3. Client shall not reverse-engineer, decompile, disassemble or otherwise attempt to derive source code from the platform or software, nor sublicense, assign or transfer the licence to third parties.
  4. All intellectual property rights in Data and materials uploaded by Client remain vested in Client. Client grants Capsyra BV a licence to use such Data solely to the extent necessary for the provision of the Services.

Article 10 – CONFIDENTIALITY AND DATA PROTECTION

  1. The Parties acknowledge that pursuant to the Agreement, they are performing in a capacity in which they may have access to or process confidential information, including but not limited to financial information, trade secrets, information regarding the business methods of either Party, as well as any other administrative, commercial, financial, or technical information directly or indirectly related to the activities of either Party which is reasonably understood to be confidential and/or is communicated as confidential and which is not generally known in scientific, commercial, or industrial circles. The Parties undertake to maintain strict confidentiality with respect to any third party regarding such confidential information (the “Confidentiality”).
  2. The duty of the Confidentiality does not apply to the information that:
    • is or becomes publicly available without the fault or negligence of the Parties. If the information is still to be disclosed, the Confidentiality applies until the moment of disclosure;
    • was already publicly known at the time this information was disclosed by the Party concerned;
    • has been made public with the prior written consent of the other Party;
    • was lawfully obtained from third parties;
    • on the basis of a legal obligation to disclosure, must be transmitted to the competent authorities.
  3. This obligations survives termination of the Agreement for a period of three (3) years.
  4. Capsyra BV collects and processes personal data in the context of performing the agreements it has concluded. This data may also be used for direct marketing if and to the extent that prior consent has been given for this purpose. Personal data are only transferred and stored insofar and for as long as necessary for these purposes. The Client is responsible for the accuracy of the personal data that he provides to Capsyra BV and undertakes to comply with Regulation 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data (“General Data Protection Regulation”) with respect to the persons whose data he transfers. For more information regarding the processing of personal data, the Client and any data subject may consult the privacy statement at https://www.capsyra.com or contact Capsyra BV via privacy@capsyra.com

Article 11 – MISCELLANEOUS

  1. If one or more provisions of these terms and conditions are at any time held to be void, voidable or unenforceable, the validity of the remaining provisions shall not be affected. Capsyra BV and Client shall replace any void, voidable or unenforceable provision with a valid and enforceable provision that achieves, to the greatest extent possible, the economic, legal and commercial objectives of the original provision.
  2. Capsyra BV’s failure to enforce any provision of these terms and conditions shall not constitute a waiver of that provision or of Capsyra BV’s right to enforce it subsequently.
  3. The Client may not transfer the Agreement, nor any rights or obligations thereunder, in whole or in part, to any third party without the prior written consent of Capsyra BV.
  4. Notifications shall be deemed valid if sent by email, registered mail or internationally recognised courier service to the addresses described in the preamble to the Agreement or to any other address that a Party may notify to the other Party in accordance with this article and unless explicitly deviated from in another article.
  5. These terms and conditions shall be exclusively governed and construed in accordance with Belgian law.
  6. All disputes arising out of or in connection with the Agreement shall be submitted to the exclusive jurisdiction of the courts of Ghent, Ypres division.