1. AGREEMENT
STATUS
1.1
This Terms and Conditions acceptance is intended as a
"Letter of Intent” with the purpose to anticipate
and describe the services Level with the rights and duties for
subscribers.
1.2
The Full agreement will be submit to the partner for his
own evaluation and possibile acceptance. Without the acceptance of
the Full agreement no campaigns will start.
1.3
Subject to the terms of this Agreement, Company will use commercially
reasonable efforts to provide Customer the Services.
1.4
As part of the registration process, Customer will identify an
administrative user name and password for Customer’s Company
account.
2. SAAS SERVICES AND SUPPORT
2.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services, in accordance with the Service Level Terms attached hereto as Exhibit B. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account.
2.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with Company’s standard practice.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1 Customer undertakes, directly or indirectly, not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Services”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
3.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies and all applicable laws and regulations.
3.3 Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
4. CONFIDENTIALITY; PROPERTY RIGHTS; INDEMNIFICATION
4.1 The Company is the sole and exclusive owner of (i) The “Platform”, the Service and the Software and all the ideas, concept, programs, code, algorithms, improvements, enhancements or modifications connected to the Platform, the Service and the Software (ii) the information regarding features, functionality and performance of the Service (iii) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (iv) all intellectual property rights related to any of the foregoing.
4.2 Customer, by using the “Platform” may disclose business, technical or financial information relating to its own business or third parties business (which includes by way of example and not exhaustively non-public data provided by Customer to Company to enable the provision of the Services). Furthermore the Customer may populate the Platform by inserting other contents (by way of example: images, logos, pictures). The combination of all the cited elements is “Customer Data”.
4.3 The Company agrees: (i) to take reasonable precautions to protect such Customer Data, and (ii) not to use (except in connection with the Services or as otherwise permitted herein) or divulge the Customer Data.
4.4 The Customer agrees that the foregoing shall not apply with respect to any information after two (2) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
4.5 Company is not the owner of the Customer Data and related right, title and interest. In the event that the Customer Data violates third parties rights (i.e.: copyrights, trademarks, designs, know how, patents, etc.), Customer will indemnify, hold harmless and defend the Company, its affiliates, and their Directors, Officers, Representatives, employees, successors and assigns, at its expense, from and against any claim coming from third parties and against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing
4.6 Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
5.
PAYMENT OF FEES
5.1
Customer will pay Company the applicable fees as it will be described
in Full Agreement Exhibit A for the Services and Implementation
Services in accordance with the terms therein (the “Services
Fees”).
5.2 Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then- current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 7 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
5.3 Company will bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company within seven (7) days after the date of the invoice. Unpaid amounts may result in immediate termination of Service and are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes associated with Services.
6. TERM AND TERMINATION
6.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as it will be described in Full Agreement Exhibit B - Service Levels Terms, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
6.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice if the other party materially breaches any of the terms or conditions of this Agreement.
6.3 Company may terminate the contract without notice in the case of non-payment by the Customer within the terms foreseen in the Agreement.
6.4 Customer will pay the whole Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, and in the meantime will grant Customer the access to the platform until there’s a campaign up and running, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. MISCELLANEOUS
9.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable
9.2 This Agreement is not assignable, transferable or sub-licensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent.
9.3 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
9.4 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
9.5 The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.
9.6 This Agreement shall be governed by and construed in accordance with the laws of the State of Italy. The parties consent to the courts of Venice having exclusive jurisdiction over them in relation to any disputes arising from, or related to, the existence, the validity, breach or termination of this Agreement.
9.7 According to article 1341 Italia Civil Code, the Customer declares to have read and to fully accept the following articles: 3.3, 3.4, 4.4, 4.5, 4.6, 5.2, 6.1, 6.3, 6.4, 7, 8, 9.2.