1. GENERAL PREMISES AND SCOPE
1.1. These general terms and conditions of contract (the "General Conditions"), the Offer Document (as defined below) and its annexes (together, the "Contract") regulate the supply of the Services by Indigo.Ai S.r.l, with registered office in Milan, Piazza Gae Aulenti 1 - Tower B, tax code and VAT number 04832520268, enrolled in the Register of Companies at the C.C.I.A.A. of Milan - Monza Brianza - Lodi under no. REA MI-2118219, deliberated share capital equal to Euro 25.283,93, and subscribed and paid up capital equal to Euro 24.717,50 (the "Supplier") to the Customer (as defined below), unless otherwise agreed in writing between the Customer and the Supplier.
1.2 The performance of the services under the Contract by the Supplier in favour of the Customer does not and shall not be construed as acceptance by the Supplier of terms and conditions other than these General Conditions.
2. DEFINITIONS
For the purpose of interpreting these General Terms and Conditions, without prejudice to any different definitions contained in other articles, the following definitions shall apply:
(a) "Updates and Developments": means all updates, adaptations, developments, improvements and modifications in general made to the Software by the Supplier and/or third parties commissioned by the Supplier;
(b) "Customer": means the beneficiary of the Services, with the characteristics and functionalities identified in the Offer Document;
(c) "Fees" means the fees set forth in the Offer Document and, where applicable, the fees set forth in the Order Form under the heading "Fees";
(d) "Access Credentials" means the authentication system through which the Software can be accessed and used, including the identification codes and access keys provided by the Supplier to the Customer;
(e) "Effective Date": means the date of activation of the Services specified in the Offer Document;
(f) "Authorised Distributors" means those persons who, by virtue of a distribution agreement concluded in writing with the Supplier, have the right to distribute and market the Software;
(g) "Offer Document" means the offer document, including its annexes, concluded between the Supplier and the Customer - or where applicable the offer document concluded between the Customer and the Authorised Distributor;
(h) "Cloud Infrastructure" means the cloud system owned by the Supplier or a third party through which the Customer may use the Software;
(i) "User Manual": means the user manual of the Software available at https://indigo.ai/docs;
(j) "Order Form" means the document by means of which the Parties may agree on the addition or modification of Services during the term of the Contract;
(k) "Party" means each of the Supplier and the Customer;
(l) "Indigo Services": means the services offered if the Offer Document is concluded directly between the Supplier and the Customer under the terms and conditions set out in the Offer Document, and which may include: support services, corrective maintenance services, training services.
(m) "Services": means the Software (or its individual functionalities as set out in the Offer Document) and, where expressly agreed in the Offer Document concluded between the Supplier and the Customer, the Indigo Services;
(n) "Software": means the chatbot platform named "Indigo.ai" owned by the Supplier (as well as the relevant Updates and Developments) having the features and functionalities defined in the Offer Document;
(o) "User": means each employee and/or collaborator of the Customer who uses the Access Credentials to access the Cloud Infrastructure and use the Software under the responsibility of the Customer.
3. SUBJECT
3.1 The subject matter of this Contract is:
(i) the non-exclusive, non-transferable or otherwise transferable, non-sublicensable, temporary licence to use the Software, from Indigo to the Customer, for the sole purpose of using the Software in accordance with the Agreement (the "Licence");
(ii) the right to use the Services by the Customer within the scope of its trade, craft, business or profession, against payment of the Fee and on the terms and conditions set out in the Contract.
4. PERFORMANCE OF INDIGO SERVICES
4.1 The Supplier shall perform its obligations under the Contract on its own responsibility and according to its own direct organisation of work, maintaining full organisational and managerial autonomy.
4.2 Once 15 (fifteen) days have elapsed since the provision of each Indigo Service, the Indigo Service provided shall be deemed accepted without reservation and the Customer shall have no further claims against the Supplier with respect to the activities performed, waiving, as of now, any claim, action, guarantee or right whatsoever with respect thereto to the fullest extent permitted by applicable law.
4.3 The Customer acknowledges and accepts that the Supplier may entrust, in whole or in part, the provision of Indigo Services to third parties identified at the sole discretion of the Supplier.
5. OBLIGATIONS OF THE CUSTOMER
5.1 By the Contract, the Customer undertakes to:
(i) independently equip and/or adapt the hardware and software and meet the minimum necessary requirements, and adequate connectivity, in order to be able to use the Software, also following any modifications, corrections, replacements made to the Software after the conclusion of the Agreement;
(ii) use the Services in a manner consistent with applicable law and the provisions of the Agreement, and solely for the purposes for which they are intended under the Offer Document;
(iii) provide the Supplier - or the Authorised Distributor, where applicable - with all the information necessary to enable the Supplier to perform its obligations under this Agreement correctly and in full, and to notify the Supplier immediately of any changes thereto, including any changes relating to Users;
(iv) cooperate with the Supplier and take all necessary steps to coordinate any marketing communications by the Supplier and/or the Customer relating to the Services;
(v) safeguard and ensure that each User keeps the Access Credentials in the strictest confidence and with the utmost diligence, undertaking not to hand them over or allow them to be used by third parties not expressly authorised;
(vi) to ensure, also pursuant to and for the purposes of Article 1381 of the Civil Code, that the Users read these General Terms and Conditions and that the provisions of the Contract are complied with by each User, including their respective employees and/or collaborators.
6. RESPONSIBILITIES AND DECLARATIONS OF THE CUSTOMER
6.1 It is prohibited to use the Services for the purpose of depositing, storing, posting, transmitting and/or sharing data, applications or computer documents that
(i) conflict with or infringe intellectual property rights owned by the Supplier and/or third parties;
(ii) have discriminatory, defamatory, libellous or threatening content, and in general that for unlawful purposes, contrary to public order or morality;
(iii) contain viruses, worms, Trojan horses or otherwise contaminating or destroying computer elements;
(iv) constitute spamming, phishing and/or similar activities or are otherwise contrary to applicable law.
6.2 The Supplier reserves the right to suspend the Services in whole or in part to the Customer and/or each User if it becomes aware of a violation of the provisions of this Article 6 and/or is expressly requested to do so by the competent authorities under applicable law. In such a case, the Supplier shall notify the Customer of the reasons for the suspension of access, without prejudice to the right to terminate the Contract pursuant to Article 12 below.
6.3 The Customer acknowledges that the Software may contain and/or require the use of so-called open source software and undertakes, also pursuant to Article 1381 of the Civil Code for each User, to observe the terms and conditions specifically applicable to them. Where necessary, these conditions shall be made known to the Customer by the Supplier.
7. SUPPLIER'S RESPONSIBILITY
7.1 The Supplier makes no express or implied representations and warranties that the Services are suitable to meet the Customer's specific requirements, that they are free from errors, delays or interruptions, or that they have functionalities not provided for in the User Manual or the Offer Document.
7.2 The Supplier shall not be liable for any use of the Services by the Customer and/or Users and which may be caused to the Customer, each User and/or third parties as a result of loss of data, documents and/or information contained in the Customer's computer systems arising from the use of the Services.
7.3 The Supplier shall not be liable in any manner whatsoever for any malfunctions and/or failure to use the Services that result from inadequate connectivity or the absence of the minimum requirements for the Customer's IT infrastructure with respect to its technical characteristics or the Customer's failure to comply with its obligations under Article 5.
7.4 Unless necessary to comply with the applicable law and/or requests of the competent authority, the Supplier is not obliged in any way to verify the data and contents entered by the Customer into the Cloud Infrastructure and/or via the Software and, therefore, cannot be held liable in any way for damages and/or losses, direct or indirect and of any nature whatsoever, arising from errors and/or omissions of such data or related to their nature and/or characteristics.
7.5 The Supplier, without prejudice to the mandatory limits of applicable law, shall in no event be liable for any (direct or indirect) damage, cost, loss and/or expense that the Customer, Users and/or third parties may suffer as a result of computer attacks, hacking activities and, in general, abusive and unauthorised access by third parties to the Customer's computer systems, which may result in, without any claim to exhaustiveness, the following consequences (i) failure to use the Software; (ii) loss of data owned by or otherwise available to the Customer; and (iii) damage to the Customer's hardware and/or software systems and/or connectivity.
7.6 Except in the event of wilful misconduct or gross negligence, the Supplier's liability shall never exceed the amount of the Fee paid by the Customer under the Contract in the twelve months preceding the commencement of the liability action by the Customer. The Supplier shall not be liable for any loss of profit, loss of earnings or consequential damages, loss of or damage to data, downtime, loss of business opportunities or other benefits, payment of penalties, delays or other liabilities of the Customer to third parties.
8. UPDATES AND DEVELOPMENTS, CHANGES IN SERVICES
8.1 The Customer acknowledges and agrees that, where deemed appropriate at the sole discretion of the Supplier, Updates and Developments may: (i) result in changes to the Software and/or and Indigo Services; or (ii) consist of replacements or migrations (even partial) of the Software.
8.2 The Parties may agree on changes and/or additions to the Services by means of the Order Form. In that case, the Order Form shall be issued by the Supplier and shall be effective from the date specified therein. The Order Form supplements the existing Contract with the Customer, except as expressly specified in the Order Form.
8.3 The Supplier may amend, replace or supplement the Services, the Software or any of its features in whole or in part during the term of this Contract. In such case, the Supplier shall promptly notify the Customer, who shall have the right to terminate this Contract in accordance with the provisions of clause 18 of these General Conditions. This is without prejudice to the provisions of clause 12.
9. SUSPENSIONS AND INTERRUPTIONS
9.1 The Supplier shall make every reasonable effort to ensure maximum availability of the Software. The Customer, however, acknowledges and accepts that the Supplier may suspend and/or interrupt all or part of the Services, subject to prior written notice to the Customer, in the event that ordinary or extraordinary maintenance work on the IT infrastructure, including the Cloud Infrastructure, and/or the Software is required. In such cases, the Supplier undertakes to restore the availability of the Services as soon as possible.
9.2 The Supplier reserves the right to suspend or discontinue the Services:
(i) in the event of non-payment or delayed payment, in whole or in part, of the Consideration in accordance with the provisions of the Offer Document;
(ii) if the Offer Document is concluded between an Authorised Distributor and the Customer, in the event of termination, for whatever reason, of the distribution agreement between the Supplier and the same Authorised Distributor;
(iii) where there are serious security and/or confidentiality reasons;
(iv) in the event of a breach by the Customer and/or each User of the obligations under applicable law concerning the use of computer services and the Internet.
10. DURATION - ESTIMATED TIMESCALE
10.1 The Agreement shall run from the Date of Execution for the period specified in the Offer Document and shall be deemed automatically renewed from period to period (as specified in the same Offer Document), unless notice of termination may be given by either Party to the other, by written notice sent by registered letter with advice of receipt or by certified electronic mail, at least 60 (sixty) days prior to the expiration date.
10.2 It is understood that, without prejudice to what is expressly stated in the Offer Document, any times requested by the Customer are indicative and depend on numerous factors, such as variations and/or customisations requested by the Customer. Therefore, the aforesaid timeframes do not constitute essential terms and are the result of an estimate based on the data communicated and/or available to the Supplier on the date on which the estimate was made.
11. FEES AND PAYMENTS
11.1 Upon performance of the Contract, the Customer shall pay the Fees in accordance with the terms and conditions set forth in the Offer Document in favour of the Supplier or Authorised Distributor where applicable.
11.2 It is understood that:
(i) Without prejudice to what may be provided for in the Offer Document, the Consideration shall be deemed to be exclusive of VAT and any other tax and/or duty that may be applicable;
(ii) unless otherwise stated in the Offer Document, the Consideration shall be paid within 60 (sixty) days from receipt of the invoice issued by the Supplier;
(iii) Any delay in the payment of the Consideration shall entail the application of default interest to the Customer in accordance with the law, and shall entitle the Supplier to suspend its services pursuant to Article 1460 of the Civil Code until the payment due is received. In the event of delay in payment of more than 30 (thirty) days from the due date, the Supplier may make use of the express termination clause referred to in paragraph 12.2;
(iv) the Customer waives the right to raise objections pursuant to Article 1460 of the Civil Code, it being understood that the Supplier shall nevertheless have the possibility of adopting any remedy necessary to eliminate the reasons underlying the objections.
12. WITHDRAWAL - TERMINATION - FORCE MAJEURE
12.1 The Supplier may terminate the Contract, even only in respect of certain Services, prematurely by simple written notice to the Customer by reimbursing the Customer for the portion of the Fee corresponding to the remainder of the term of the Service where the Supplier has reasonable grounds to believe that the modification, replacement or supplement of the Services is rendered necessary by the danger that the provision of the Services or the Software or their use may infringe Intellectual Property Rights of third parties or violate statutory provisions, and the Supplier cannot proceed with the modification, replacement or supplement of the Services pursuant to these General Terms and Conditions.
12.2 The Contract shall be deemed to be automatically terminated, pursuant to and for the purposes of Article 1456 of the Civil Code, by simple written notice of the Supplier by registered letter with acknowledgement of receipt or by certified electronic mail, in the event of breach by the Customer of its obligations under Articles 5.1 (ii) (Obligation to use in accordance with the applicable law), 5.1 (iii) and (iv) (Obligation to cooperate), 5.1 (v) (Custody of access credentials), 5.1 (v) (Supervision of Users) , 6.1 (Responsibilities and declarations of the Client), 13 (Intellectual Property Rights), 14 (Confidentiality), 15 (Processing of personal data). However, this is without prejudice to the Supplier's right to obtain compensation for all damages suffered and the exercise of any other remedy at law.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 The Customer expressly acknowledges and recognises that all industrial and/or intellectual property rights, including the related economic exploitation rights, in the Cloud Infrastructure, the Software, the Indigo Services, the User Manual and any further documentation, any software developed in the execution of the Software and any derivative works (including, but not limited to, the related object code, source code, interfaces and supporting documentation) shall, in their entirety and in any part and anywhere in the world, be the exclusive property of the Supplier and/or third parties.
13.2 All rights to trademarks, logos, names, and other distinctive signs however associated with the Software also remain with the Supplier, with the consequence that the Customer may not use them in any way without the prior written authorisation of the Supplier.
13.3 The Customer represents and warrants that it has obtained all necessary licences and authorisations to enable the Supplier to use the Software, and that, therefore, the Customer's use of the Software does not in any way infringe any industrial and/or intellectual property rights of third parties anywhere in the world.
13.4 The Customer undertakes to use - and also undertakes pursuant to Article 1381 of the Civil Code to ensure that each User uses - the Services within the strict limits of the Licence and in compliance with applicable law and the intellectual property rights of the Supplier or third parties. Therefore, by way of example but not limited to, and subject in all cases to the mandatory limits of applicable law, the Customer may not (a) circumvent the technical limitations and technological protection measures present in the Software, including the authentication system; (b) decode, decompile, disassemble or modify the Software or apply reverse engineering activities on the same as well as perform any other and different activities that allow to trace back the way in which the Software has been realised and/or developed or its components (c) make or cause to be made copies of the Software; (d) publish or cause to be published the Software; (e) use the Software outside the Cloud Infrastructure or outside the Customer's IT infrastructure; (f) market the Software in any way.
13.5 For the entire duration of the Contract, the Customer grants the Supplier free of charge the right to use and reproduce, at the Supplier's discretion, the Customer's logo, trademarks and name on the website, in commercial presentations and/or promotional and/or marketing material.
14. CONFIDENTIALITY
The Parties recognise and mutually acknowledge that all information of which they shall become aware in the performance of the Contract is of a confidential and reserved nature and, therefore, they undertake not to use or disclose it to third parties, in any way or by any means, for purposes other than those set out in the Contract, except to the extent required by applicable law and/or on the basis of a legitimate order by the competent authority and/or to protect one's own right also towards third parties, without prejudice in any case to the obligation of prior communication to the other Party, so as to allow the latter to request the necessary measures to protect the confidentiality of the information. The foregoing obligation of confidentiality does not apply to information that is in the public domain.
15. PROCESSING OF PERSONAL DATA
15.1 Each Party warrants that personal data provided by the other Party and relating to it, its employees and any person involved in its organisation, shall be collected and processed in accordance with the applicable data protection law (including EU Reg. 2016/679) as well as any other applicable provisions of the relevant applicable law. The Customer further warrants that it will collect and process personal and particular data of third parties that it may come into possession of through the use of the Services in accordance with applicable data protection law (including EU Reg. 2016/679).
15.2 The Supplier acknowledges that the information on the processing of personal data can be found and consulted on its website (https://indigo.ai/it/privacy-policy/). This information notice forms an integral and substantial part of these General Terms and Conditions.
The Parties acknowledge and mutually agree that the performance of the Contract may entail the processing by the Supplier - and/or the Authorised Distributor, where applicable - of third parties' personal data of which the Customer is the data controller under the applicable data processing law. In such a case, the Parties acknowledge that the Supplier will act as data controller (or, where applicable, sub-processor), and will be subject to the provisions of the Data Processing Agreement available here: Offer.
16. PROHIBITION OF TRANSFER
16.1 For the entire duration of this Agreement and for 12 (twelve) months following its termination, the Customer undertakes, on its own behalf, in association with or on behalf of a third party, directly or indirectly, continuously or intermittently, in any form and by any means, in the territory of the European Union and the United Kingdom of Great Britain and Northern Ireland, not to employ or solicit or attempt to solicit, and not to enter into any business relationship, in any capacity whatsoever, including consultancy, with any employee, director, representative, agent, collaborator.
16.2 In the event of any breach, even partial, by the Customer of its obligations under this Article 17, the Customer shall pay to the Supplier, its successors and/or assigns, by way of a penalty, an amount equal to Euro 10,000.00 for each breach, without prejudice to the Supplier's right to claim compensation for any greater damage suffered. The Customer declares that, also taking into account the Supplier's interest in compliance with the obligations and prohibitions set forth in this Article 17, it considers the aforesaid penalty to be congruous.
16.3 The Customer acknowledges and agrees that any remuneration due in connection with the undertakings given under this Section 17 has already been taken into account and included in the overall framework of the Contract and the provisions thereof.
17. EFFECTS OF TERMINATION OF THE CONTRACT
17.1 In the event of termination of the Agreement, for whatever reason, the Supplier shall immediately and permanently cease access to the Software to the Customer and Users.
17.2 Without prejudice to the provisions of paragraph 16.1, following termination of the Contract, for whatever reason, the Customer shall be entitled to download its data, documents and/or content for a period of 30 (thirty) calendar days from the date of termination of the Contract. Alternatively, the return of such data, documents and/or content may be requested by the Customer by means of automated delivery methods to be agreed upon or on special optical media, against the payment of specifically provided fees.
17.3 Unless otherwise agreed between the Parties and subject to mandatory legal limitations, if the Customer has not downloaded or requested the return of the data, documents and/or content within the time limit specified in paragraph 16.2, the Supplier shall be entitled to delete them permanently.
17.4 It is in any case understood that the following provisions shall survive termination of the Contract for any reason whatsoever: 7.2, , e (Supplier's Liability), 11.2 (Fees and Payments), 13 (Intellectual Property Rights), 15 (Confidentiality), 17 (Effects of Termination of Contract), 19 (Governing Law and Exclusive Jurisdiction), 20.2 and 20.3 (Final Provisions).
18. HEALTH AND SAFETY
18.1 The Parties undertake to cooperate and coordinate in order to fulfil their obligations under Article 26 of Legislative Decree No. 81/2008, as amended and supplemented from time to time.
18.2 The Parties mutually acknowledge the absence of interference risks, and that therefore there are no costs related to the preparation of measures aimed at eliminating or minimising such risks.
18.3 The Customer further declares and warrants that it complies with the mandatory legal requirements of Legislative Decree No. 81/2008.
19. UNILATERAL AMENDMENTS OF THE CONTRACT
The Supplier shall have the right to amend the Contract at any time by simply notifying the Customer in writing. In this case, the Customer shall have the right to withdraw from the Contract by written notice sent to the Supplier by registered letter with acknowledgement of receipt or by certified e-mail, under penalty of forfeiture, within 15 (fifteen) days of receipt of the Supplier's notice, unless otherwise agreed in writing in the Offer Document. If the Customer fails to exercise the right of withdrawal, within the terms and in the manner set forth above, the amendments to the Contract shall be deemed to be definitively known and accepted by him and shall become definitively effective and binding.
20. APPLICABLE LAW AND EXCLUSIVE JURISDICTION
20.1 This Agreement shall be governed by and construed in accordance with the laws of Italy.
20.2 The Court of Milan shall have exclusive jurisdiction over any dispute arising out of the validity, interpretation, effectiveness, execution or termination of this Agreement.
21. FINAL PROVISIONS
21.1 The Contract expresses the entire understanding between the Parties and supersedes all other prior or contemporaneous agreements, understandings, representations and statements, written or oral, with respect thereto.
21.2 The Parties acknowledge that the relationship established by the Parties under the Contract confers no rights other than those set forth herein.
21.3 The Customer shall not be entitled to transfer or assign this Contract, or its rights and/or obligations under the Contract, without the prior written consent of the Supplier. The Supplier shall have the right to assign, transfer or otherwise dispose of this Contract, or any of its rights or obligations under this Contract, in whole or in part, to its subsidiaries, parents or jointly controlled entities without the consent of the Customer
21.4 Should any of the clauses of these General Terms and Conditions be or become invalid or ineffective, such invalidity or ineffectiveness shall not affect the validity or effectiveness of the other clauses of the General Terms and Conditions, which shall therefore remain in force between the Parties.
21.5 During the performance of the Contract, the Supplier's tolerance of conduct by the Customer that does not comply with one or more of the provisions contained in the Contract or in the applicable Law does not imply a waiver of its rights at any time.
21.6 In these General Terms and Conditions, all terms expressed in days shall be understood as calendar days.