1. GENERAL PREMISES AND SCOPE
1.1 These general conditions of contract (the "General Conditions") apply with reference to all contracts having as their object what is set forth in paragraph 3.1 below between (i) the company Indigo.Ai S.r.l, with registered office in Milan, Piazza Vetra 17, tax code and VAT number 04832520268, registered with the Register of Companies at the C.C.I.A.A. of Milan - Monza Brianza - Lodi under no. REA MI-2118219, share capital of Euro 24,717.50 fully paid-up (the "Supplier"), on the one hand, and (ii) the Customer (as defined below), on the other hand. These General Conditions shall not apply only in the event that a specific written agreement has been entered into between the Supplier and the Customer, having as its subject matter the provisions of paragraph 3.1 below, which regulates in detail all its terms and conditions. In the latter case, the provisions of the specific written agreement shall apply, limited to the matters governed by it.
1.2 These General Conditions represent and contain the entire settlement of the contractual relationship between the Supplier and the Customer and are supplemented only by the offer document including its attachments, submitted by the Supplier to the Customer and signed for acceptance by the Customer - or the offer document submitted to the Customer by the Authorized Distributor, signed by the Authorized Distributor and signed for acceptance by the Customer - and containing (i) Customer's identifying information (i.e., Customer's company name, registered office address, tax identification number and VAT number, Customer's e-mail and certified e-mail address), (ii) the Software Features that the Customer intends to use, (ii) the Indigo Services (as defined below), and (iii) the fee to be paid by the Customer and the method of payment thereof (the "Offer Document").
1.3 In case of contrast:
(i) between the contents of the General Conditions and the contents of the Offer Document directly entered into between the Supplier and the Customer, the provisions of the Offer Document will apply;
(ii) between the contents of the General Conditions and the contents of the Offer Document entered into directly between the Authorized Distributor and the Customer, the provisions of the General Conditions shall apply in the relationship between the Supplier and the Customer, unless otherwise agreed upon in writing between the Supplier, the Authorized Distributor and the Customer.
1.4 Any terms and conditions - or, in any case, any other clause or provision - that are contained in documents other than these General Conditions and/or the Offer Document, as well as any amendments made unilaterally by the Customer to these General Conditions and/or the Offer Document that are not expressly accepted in writing by the Supplier, will never be binding on the Supplier, nor can they be considered an integral part of these General Conditions. These General Conditions shall always prevail over any general and/or special conditions of the Customer.
1.5 Supplier's performance of the services under the Contract for Customer's benefit does not and shall not be
construed as acceptance by Supplier of terms and conditions other than these General Conditions.
2. DEFINITIONS
For the purpose of interpreting these General Conditions, without prejudice to any different definitions contained in other articles, the meaning to be given to the following terms is specified below (terms defined in the singular shall also be understood in the plural, and vice versa, where the context so requires):
(a) "Access Credentials" means the authentication system through which the Software can be accessed and used to enjoy the Software Features;
(b) "Applicable Legislation": means any law, regulation, directive or other source of Italian or European Union law, including regional, local laws, measures issued by any Competent Authority and any other technical regulations that are applicable, time by time and by reason of the subject matter of reference, to the General Conditions, the Offer Document signed between the Supplier and the Customer, the Contract, the License, the Software Features, the Indigo Services, the Customer and/or the Supplier;
(c) "Authorized Distributors": means those entities who, by virtue of a written distribution agreement with the Supplier, have the right to distribute and market the Software;
(d) "Cloud Infrastructure": means the cloud system owned by the Provider or a third party through which the Customer can access the Software Features;
(e) "Competent Authority": means any entity, authority, department, inspectorate, minister, ministry, public administration or public body, whether local, regional, national or supranational in nature, having jurisdiction in or for Italy in relation to the matters dealt with from time to time by these General Conditions;
(f) "Connectivity": means the connection to the Data Center made by the Customer through connection to a telecommunications network or the Internet;
(g) "Contract": means the contract for the provision of services between the Supplier and the Customer governed by the General Conditions;
(h) "Customer": means the beneficiary of the Software Features, as identified in the Offer Document; (i) "Customer Infrastructure": means the computer system owned by the Customer;
(j) "Data Center": means the service centers that host the interconnected servers, owned by the Provider or third parties, on which the Cloud Infrastructure resides;
(k) "Estimated Timelines": has the meaning given in Section 11.2;
(l) "Fees": means the fees stated in the Offer Document under "Fees";
(m) "General Conditions": has the meaning given in paragraph 1.1;
(n) "Indigo Services": means the services below, which will be provided by the Supplier for the benefit of the Customer only if the Offer Document is entered into directly between the Supplier and the Customer:
(i) Support services: the Supplier will maintain and provide support services to the Customer on the terms and conditions set forth in the Offer Document entered into directly between the Supplier
and the Customer;
(ii) Corrective maintenance services: the Supplier will maintain the Software, intervening to remove flaws, defects and malfunctions of which it becomes directly aware or which are reported to it by
the Customer, under the terms and conditions set forth in the Offer Document entered into directly
between the Supplier and the Customer;
(iii) Training services: Indigo will perform training services related to the Software for the benefit of the Customer, under the terms and conditions set forth in the Offer Document entered into directly
between the Supplier and the Customer.
(o) "License": has the meaning given in Section 3.1;
(p) "Offer Document" has the meaning given in Section 1.2;
(q) "Party" means each between the Supplier and the Customer;
(r) "Software": means the chatbot platform named "Indigo.ai" owned by the Supplier (as well as its Updates and Developments) through which the Customer can use the Software Features;
(s) "Software Features": means the Software features specifically identified in the Offer Document; (t) "Supplier": has the meaning given in Section 1.1;
(u) "Updates and Developments": means all updates, supplements, adaptations, developments, enhancements and modifications in general made to the Software by Supplier and/or third parties engaged by Supplier;
(v) "User": means each employee and/or collaborator of the Customer, authorized by the Customer to use the Access Credentials to access the Cloud Infrastructure and make use of the Software Features;
(w) "User Manual": means the Software User's Manual available at the web page https://indigo.ai/docs. 3. SUBJECT
3.1 The subject of this Contract is:
(i) a non-exclusive, non-transferable, temporary license to use the Software, from Indigo to Customer, for the sole purpose of using the Software Features pursuant to the Contract (the "License");
(ii) the right to use, by the Customer, against payment of the Fee and on the terms and conditions set forth
in the Contractt, the Software Features identified in the Offer Document; and
(iii) the provision of Indigo Services in favor of the Customer, if the Offer Document is entered into directly between the Supplier and the Customer.
3.2 Except as otherwise provided in the Offer Document entered into directly between the Supplier and the Customer, the Customer and the Supplier mutually acknowledge and agree that the subject matter of the Contract is exclusively as set forth in paragraph 3.1 above, anything not expressly included therein being expressly excluded from the subject matter of the Contract; the following are therefore excluded, among others, but not limited to: (i) the granting of a license to use software solutions owned by the Supplier or by third parties, except for the License; (ii) the use by the Customer of Software functionalities in addition to the Software Features identified in the Offer Document; (iii) the provision by the Supplier of services - in addition to the Indigo Services, if the Offer Document is entered into directly between the Supplier and the Customer - such as, for example, connection or network services.
3.3 The Software Features will be made available to the Customer through the Software hosted on the Cloud Infrastructure, which the Customer can access with Access Credentials.
3.4 The Customer and the Supplier mutually acknowledge and agree that the Software Features are exclusively those - among all possible Software Features listed in the User Manual - identified in the Offer Document.
3.5 Any additional or different activities with respect to what is provided for in paragraph 3.1 above shall be the subject of an independent and separate written agreement, to be considered binding on the Supplier only upon its express acceptance in writing.
4. EXECUTION OF INDIGO SERVICES
4.1 The Supplier will fulfil the obligations under the Contract under its own responsibility and according to its own direct organization of work, with maintenance of full organizational and managerial autonomy. The Customer does not have the right to issue directives to the Supplier's personnel and to exercise managerial and/or hierarchical powers over the Supplier.
4.2 After 15 (fifteen) days from the provision of each Indigo Service, the Indigo Service rendered shall be deemed accepted without reservation and the Customer shall have no further claim against the Supplier with reference to the activities performed, waiving, as of now, any claim, action, warranty or right in any capacity with reference thereto.
4.3 The Customer acknowledges and agrees that the Supplier may outsource, in whole or in part, the provision of Indigo Services to third parties identified at the sole discretion of the Supplier.
4.4 The Customer and the Supplier undertake, each to the extent of its responsibility, to avoid (i) any possible functional promiscuity between their respective personnel and (ii) any mutual interference in the other Party's
business organization and management.
5. OBLIGATIONS OF THE CUSTOMER
By the Contract, the Customer agrees to:
(i) pay the Fees due to the Supplier or the Authorized Distributor according to the provisions of the Offer Document;
(ii) independently equip themselves with appropriate hardware and software equipment and adequate Connectivity in order to be able to access the Data Center and use the Software to enjoy the Software Features;
(iii) independently adjust the characteristics of the Customer Infrastructure and Connectivity to any changes, replacements and corrections made to the Software after the conclusion of the Contract;
(iv) use the Software and/or enjoy the Software Features in a manner consistent with Applicable Legislation and the provisions of the Contract, and solely for the purposes for which they are intended;
(v) provide the Supplier - or the Authorized Distributor, if the Offer Document has been signed with the latter - with all information necessary to enable the Supplier to properly and fully perform its obligations under this Contract, as well as to immediately notify the Supplier of any changes therein, including any changes relating to Users;
(vi) have each User acquainted withthese General Conditions;
(vii) collaborate with Supplier and put in place what is necessary in order to coordinate any marketing communications from Supplier and/or Customer relating to Customer's use of the Software Features;
(viii) to ensure, also pursuant to and for the purposes of Article 1381 of the Civil Code, that the provisions of the Contract are complied with by each User, including their respective employees and/or collaborators; the Customer is, therefore, held solely responsible for the actions of such parties and guarantees that they will comply with all Applicable Legislation .
6. CUSTOMER RESPONSIBILITIES AND DECLARATIONS
6.1 By signing this Agreement, the Customer declares that (i) he/she has all the rights and powers necessary to enter into and fully and effectively execute the Contractand that (ii) he/she intends to use the Software Features within the scope of his/her entrepreneurial, artisanal, commercial or professional activity and that, therefore, the provisions of Legislative Decree 206/2005 protecting consumers do not apply to him/her.
6.2 It is prohibited to use the Software Features for the purpose of depositing, storing, sending, publishing, transmitting and/or sharing data, applications or computer documents that:
(i) conflict with or infringe on intellectual property rights owned by the Supplier and/or third parties;
(ii) have discriminatory, defamatory, libelous or threatening content;
(iii) contain viruses, worms, trojan horses or, otherwise, other computer elements of contamination or destruction;
(iv) constitute spamming, phishing and/or similar activities;
(v) are in any case contrary to the Applicable Legislation.
6.3 Provider reserves the right to suspend access to the Software and/or the Software Features to the Customer and/or each User, or to prevent access to the data stored in the Software and/or on the Cloud Infrastructure, if it becomes aware of a violation of the provisions of this Article 6 and/or an express request to that effect is made by a judicial or administrative body under the Applicable Legislation. In such case, the Provider will notify the Customer of the reasons for the adoption of the suspension of access, without prejudice to the right to terminate the Contract pursuant to Article 13 below.
6.4 The Customer acknowledges that the Software may contain and/or require the use of so-called open-source software and agrees, including pursuant to Article 1381 of the Civil Code for each User, to abide by the terms and conditions specifically applicable to them. Where necessary, such terms and conditions will be made appropriately cognizable to the Customer by the Supplier.
7. SUPPLIER'S LIABILITY
7.1 The Supplier makes no express or implied representations or warranties that the Software and/or the Software Features are suitable to meet the Customer's specific needs, that they are error-free, or that they have functionality not provided for in the User Manual, technical specifications, and related documentation.
7.2 The Provider shall in no event be held liable for any use of the Software Features by the Customer and/or Users in a manner or for purposes that do not comply with the Applicable Legislation.
7.3 Provider shall not be liable for any damages, direct or indirect, of any nature and extent whatsoever, arising to Customer and/or each User and/or any third party (i) as a result of the use of the Software and/or the Software Features in a manner inconsistent with the provisions of the Agreement and/or the Applicable Legislation, and/or (ii) as a result of loss of data, documents and/or information contained in Customer's computer systems arising from the use of the Software and/or the Software Features.
7.4 The Supplier shall not be liable in any way for any malfunctions and/or failure to use the Software and/or the Software Features that result from inadequate Connectivity with respect to the relevant technical characteristics.
7.5 In no event shall the Supplier be held liable for any damage or loss, of whatever nature or magnitude, resulting from the processing carried out by the Customer and/or each User by means of the Software and/or the Software Features, the Customer and/or the User being in any case obliged to verify the correctness of such
processing.
7.6 Except as may be necessary to comply with Applicable Legislation and/or requests of the Competent Authority, the Provider is under no obligation whatsoever to verify the data and content entered by the Customer and/or each User into the Cloud Infrastructure and/or through the Software for the enjoyment of the Software Features and, therefore, shall in no way be held liable 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.
7.7 The Supplier, subject to the mandatory limits of the Applicable Legislation, shall in no event be held liable for any damage (direct or indirect), cost, loss and/or expense that the Customer and/or Users and/or third parties may suffer as a result of cyber attacks, hacking activities and, in general, abusive and unauthorized access by third parties to the Data Center, the Cloud Infrastructure, the Software, the Customer Infrastructure and, in general, to the Customer's and/or Supplier's computer systems, from which the following consequences may result, without claiming to be exhaustive: (i) failure to use the Software Features; (ii) loss of data owned by or otherwise in the availability of Customer; and (iii) damage to Customer's hardware and/or software systems and/or to Customer's Connectivity.
7.8 Except in the case of wilful misconduct, Supplier's liability shall never exceed the amount of the annual Fee paid by Customer under the Contract. The Supplier shall not be liable for any loss of profit, lost profits or consequential damages, loss of or damage to data, factory downtime, loss of business opportunities or other benefits, payment of penalties, delays or other liabilities of the Customer to third parties.
8. ACCESS CREDENTIALS
8.1 The Customer and/or each User may use the Software by means of the Access Credentials that will be provided by the Supplier.
8.2 The Customer is aware that knowledge of the Access Credentials by third parties would allow such third parties to make unauthorized use of the Software Features and access to any information stored therein. In any event, Customer shall be held solely responsible for any use, authorized or unauthorized, of the Software by means of the Access Credentials.
8.3 The Customer is obliged to keep and cause each User to keep the Access Credentials in the utmost confidentiality and diligence, and is obliged not to give them or allow their use to third parties not expressly authorized.
8.4 The Supplier shall in no event be held liable for any direct and/or indirect damage that may be caused to the Customer and/or each User and/or third parties as a result of the failure of the Customer and/or each User to comply with the provisions of this Article 8.
9. UPDATES AND DEVELOPMENTS
9.1 Customer acknowledges and agrees that, where deemed appropriate in Supplier's sole discretion, Updates and Developments may: (i) result in the modification or elimination of certain Software Features and/or Indigo Services; or (ii) consist of replacements or migrations (even partial) of the Software.
9.2 The Customer releases the Supplier from any liability related to any damages resulting from potential Updates and Developments, unless such damages result from the Supplier's wilful misconduct or gross negligence.
10. SUSPENSIONS AND INTERRUPTIONS
10.1 Supplier will make every reasonable effort to ensure maximum availability of the Software Features. The Customer, however, acknowledges and agrees that the Supplier may suspend and/or interrupt access to the Software and/or the SoftwareFeatures, upon written notice to the Customer, in the event that routine or extraordinary maintenance work on the IT infrastructure, including the Cloud Infrastructure, and/or the Software becomes necessary. In such cases, the Supplier undertakes to restore the availability and functionality of the Software and the Software Features as quickly as possible.
10.2 The Provider reserves the right to suspend or terminate access to the Software and the Software Features:
(i) in case of non-payment or late payment, in whole or in part, of the Fees in accordance with the provisions of the Offer Document, if the latter is entered into directly between the Supplier and the Customer;
(ii) if the Offer Document is entered into between an Authorized Distributor and the Customer, in case of termination of the effectiveness, for any reason whatsoever, of the distribution contract between the Supplier and the same Authorized Distributor;
(iii) If security and/or confidentiality reasons apply;
(iv) in case of violation by the Customer and/or each User of the obligations set forth in the Applicable Legislation regarding the use of computer services and the Internet;
(v) in the event that problems occur with the IT Infrastructure and/or Cloud Infrastructure and/or Software and/or Updates and Developments that cannot be remedied without suspending the relevant access, including the hypothesis of the relevant replacement and/or migration, even partial, in each case subject to prior written notice to the Customer about the reasons for the suspension and the expected timing of intervention.
11. DURATION - ESTIMATED TIMING
11.1 The Contract has a term of one year and shall be deemed automatically renewed from year to year, unless termination, which may be communicated by either Party to the other, by written notice sent by registered letter with return receipt or certified e-mail, at least 60 (sixty) days prior to expiration.
11.2 It is understood that, without prejudice to what is expressly stated in the Offer Document, the timelines that may be requested by the Customer (the "Estimated Timelines") are indicative, do not constitute essential
terms and are the result of an estimate that is based on the data communicated and/or available to the Supplier on the date on which the estimate was formulated. The Customer acknowledges that the Software Features have a high level of technical complexity and that the use of the same may be slowed down or delayed with respect to the Estimated Timelines depending on numerous factors such as, but not limited to:
(i) variations and/or customizations, requested by the Customer from the Supplier and made by the latter - if the Offer Document is stipulated directly between the Supplier and the Customer - on the so-called workspaces;
(ii) variations and/or customizations, requested by the Customer from the Authorized Distributor and made by the latter - if the Offer Document is stipulated between the Supplier and the Authorized Distributor - on the so-called workspaces;
(iii) unforeseeable events as of the date of the estimate (including but not limited to issues related to the Customer Infrastructure; facts of the Customer or a third party; etc.);
(iv) factors or technical data not known to the Supplier at the date of the timing estimate.
11.3 The Supplier, therefore: (i) makes no express or implied representations or warranties that the Estimated Timelines will be met or, as of the date they are formulated, are correct and/or sufficient for the achievement of the Customer's objectives; (b) unless the delay results from the Supplier's wilful misconduct or gross negligence, the Supplier shall not be held liable in any way for any damages, liabilities, or adverse consequences of any nature whatsoever arising to the Customer or third parties as a result of the failure to meet the Estimated Timelines.
12. FEES AND PAYMENTS
12.1 In return for the execution of the Contract, the Customer is required to pay the Fees, according to the terms and conditions set out in the Offer Document in favor:
(i) of the Supplier, if the Offer Document is signed directly between the Supplier and the Customer; or
(ii) of the Authorized Distributor, if the Offer Document is signed between the Authorized Distributor and the Customer.
12.2 With reference to the Offer Document entered into directly between the Supplier and the Customer (and, therefore, excluding the Offer Document entered into between the Authorized Distributor and the Customer), it is understood that:
(i) the Supplier shall be entitled to revision of the Fees if the Customer, after signing the Offer Document, requests technical changes or amendments to the agreed contractual conditions;
(ii) without prejudice to what may be provided in the Offer Document, the Consideration shall be understood to be exclusive of VAT and any additional taxes and/or charges that may be applicable;
(iii) the payments of the Consideration shall be made by the Customer in favor of the Supplier within the term expressly indicated in the Offer Document or, in the absence of express provision in the Offer Document, within 60 (sixty) days from the receipt of the invoice issued by the Supplier. The issuance of the relevant invoice by the Supplier shall take place according to the timeframe and manner indicated in the Offer Document;
(iv) in the absence of different indications in the Offer Document, payments must be made at the Supplier's premises. In any case, payments made at the hands of the Supplier's employees or third parties acting on behalf of the Supplier who do not possess valid authorization and written power of attorney to collect sums in the name and on behalf of the Supplier will not be considered valid or effective;
(v) the terms of payment indicated in the Contract are peremptory. Any delay in the payment of the Consideration will result in the application of default interest against the Customer in accordance with the law and will legitimize, pursuant to Article 1460 of the Civil Code, the suspension of services against the Supplier until receipt of the payment due. 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 13.3 and may withdraw from any other contracts in force with the Customer;
(vi) the Customer will still be obliged to make the payments due in a timely manner, even if it has raised objections for delays or for defects against the Supplier, given that in such cases the Supplier will still have the possibility to adopt any remedy necessary to eliminate the reasons behind the objections, respecting the terms and conditions of the Contract. With regard to the hypothesis indicated, in application of Article 1462 of the Civil Code, the Customer shall therefore be deemed to have waived the right to raise the exception of non-performance referred to in Article 1460 of the Civil Code.
13. WITHDRAWAL - TERMINATION - FORCE MAJEURE
13.1 The Supplier alone may terminate the Contract prematurely in the following cases:
(i) by simple written notice with immediate effect, in the event that bankruptcy petitions have been filed against the Customer or other insolvency proceedings have been initiated, seizures, attachments, civil or criminal convictions of the Customer's legal representatives that jeopardize its good name or may hinder its activity, as well as in the event of a merger, liquidation or transfer of business by the Customer or a change in the corporate structure of the Customer or its ultimate parent, unless, in the latter cases of change, the Supplier, previously informed, has provided its written consent to the continuation of the Contract. The Customer undertakes to promptly inform the Supplier about the occurrence of any of the above-mentioned events;
(ii) at any time by simple written notice to the Customer with 60 (sixty) days' notice.
Subject to the mandatory provisions of the law and the provisions of Article 21, the Customer expressly waives
its right to avail itself of any withdrawal clause that may be provided for in the Legislation Applicable to the Contract.
13.2 If the Customer does not exactly fulfill one or more of its obligations to the Supplier, as provided for in these General Conditions and/or in the Offer Document, the Supplier may enjoin the Customer to fulfill them, by written notice sent by registered letter with acknowledgement of receipt or certified e-mail, within a period not exceeding 7 (seven) days except in cases where the default is of such a nature or seriousness that it cannot be remedied within that period. After this period has elapsed without the Customer having remedied its default or in cases where the default was of such a nature or seriousness that it could not be remedied within this period, the Supplier shall have the right, at any time and without any further warning or formality, to notify in writing that the Contract has been terminated.
13.3 In addition to the provisions set forth in other parts of these General Conditions, the Contract shall be deemed automatically terminated, pursuant to and for the purposes of Article 1456 of the Civil Code, by simple written notice to that effect by the Supplier by registered mail with return receipt or certified e-mail, in the event of default by the Customer of the obligations set forth in Articles 5 (Customer's Obligations), 6.2 (Responsibilities and Declarations of the Customer), 8.3 (Access Credentials), 12.1 and 12.2 (Fees and Payments), 14 (Intellectual Property Rights), 16 (Confidentiality), 17 (Processing of Personal Data), 18 (Prohibition of Reversal), 20 (Health and Safety), 23.2 and 23.4 (Final Provisions). However, the Supplier's right to obtain compensation for all damages suffered shall remain unaffected.
13.4 Supplier shall not be held in default of the Contract or liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from events, circumstances, or causes beyond its control (including but not limited to war, riot, insurrection, changes in law, acts of governmental authority, legal or administrative restrictions, strikes, natural disasters, pandemic events, or similar events) that Supplier is unable to reasonably prevent or mitigate.
14. INTELLECTUAL PROPERTY RIGHTS
14.1 Customer expressly acknowledges and recognizes that all industrial and/or intellectual property rights̀, including related rights of economic exploitation, in the Cloud Infrastructure, Software, Software Features, Indigo Services, documentation, software that may have been developed in the execution of the Software Features any derivative works (including, but not limited to, 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 Supplier and/or related third party owners as may be designated by Supplier.
14.2 All rights to trademarks, logos, names, and other distinctive signs however associated with the Software Features also remain with the Supplier, with the result that the Customer may not use them in any way without the prior written authorization of the Supplier.
14.3 Customer represents and warrants that it has obtained all necessary licenses and permissions to enable Supplier to use the Software Features, and that, therefore, Customer's use of the Software Features does not in any way infringe any industrial and/or intellectual property rights of any third party, anywhere in the world.
14.4 The Customer agrees to use - and also undertakes pursuant to Article 1381 of the Civil Code to cause each User to use - the Software Features and the Software within the strict limits of the License and in compliance with the Applicable Legislation and the intellectual property rights of the Provider or third parties. Therefore, by way of example and without limitation and subject in all cases to the mandatory limitations set forth in the Applicable Legislation, Customer shall not: (a) circumvent the technical limitations and technological protection measures present in the Software, including the authentication system; (b) decode, decompile or disassemble 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 made and/or developed or the components thereof; (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 Infrastructure; (f) market the Software in any capacity whatsoever.
14.5 For the entire duration of the Contract, the Customer grants the Supplier the right to use and reproduce, at the Supplier's discretion, the Customer's logo, trademarks, and name:
(i) within the website owned by the Supplier to publicize the business collaboration between the Supplier and the Customer (including placing them on the Customers page/section with the relevant use case);
(ii) within the sales presentations and/or promotional material produced by the Supplier and used by the Supplier directly and/or indirectly as part of the promotion and marketing of the Software;
(iii) to announce the start of the business collaboration between the Supplier and the Customer within the monthly newsletter and press releases to be disseminated through the media.
14.6 The Parties agree that the right to use the logos, trademarks and names provided for under paragraph 14.5 above does not require ad hoc consideration, its economic rationale being instead justified within the overall agreements governed by the Contract.
15. INDEMNIFICATION
Customer agrees to indemnify and hold the Supplier harmless from any and all damages, claims, liabilities and/or charges, direct or indirect and including reasonable attorneys' fees, that Supplier may suffer or incur as a result of Customer's and/or each User's failure to comply with each of its obligations under the Contract and, in particular, the provisions of Articles 4.1 and 4.4 (Performance of Indigo Services), 5 (Customer's Obligations), 6 (Customer's Responsibilities and Representations), 8 (Access Credentials), 14 (Intellectual Property Rights), 16 (Confidentiality), 17 (Processing of Personal Data), 20 (Health and Safety).
16. CONFIDENTIALITY
The Parties recognize and mutually acknowledge that all the information of which they will become aware in the execution 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 and by any means, for purposes other than those referred to in the Contract, except as required by the Applicable Legislation and/or on the basis of a legitimate order by the Competent Authority and/or to protect its own right also against 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.
17. PROCESSING OF PERSONAL DATA
17.1 Each Party warrants that personal data provided by the other Party and referring to it, its employees and any person involved in its organization, will be collected and processed in accordance with the Applicable Legislation on data protection (including EU Reg. 2016/679) as well as any other applicable provisions of the Applicable Legislation on data protection. Furthermore, Customer warrants that it will collect and process personal and special third party data that it may come into possession of through the use of the Software Features and/or Indigo Services in accordance with the Applicable Legislation on data protection (including EU Reg. 2016/679).
17.2 The Supplier acknowledges that the information on the processing of personal data can be found and accessed on its website (https://indigo.ai/it/privacy-policy/). This notice forms an integral and substantive part of these General Conditions.
17.3 The Parties acknowledge and mutually agree that the performance of the Contract may entail the processing by the Supplier - and/or the Authorized Distributor, if the Offer Document has been stipulated between the Customer and the Authorized Distributor - of personal data of third parties of which the Customer is the data controller pursuant to the Applicable Legislation on the processing of personal data. In the event of collection, by the Supplier, of personal data owned by the Customer, to be processed for the proper execution of the Software Features and/or Indigo Services, pursuant to EU Reg. 2016/679, the Customer will appoint the Supplier as data controllers. In this eventuality, the Supplier will accept the relevant appointment and declares, for this purpose, that it has the competence and technical knowledge regarding the purposes and methods of processing, the security measures to be taken to protect privacy, the completeness and integrity of the data to be processed on behalf of the Customer.
17.4 The Parties further agree that, in the absence of the appointment of the Supplier by the Customer as data controller, the Supplier will be authorized to process the data of third parties owned by the Customer of which it may become aware in the context of the performance of the Contract as a data processor pursuant to Article 29 of EU Reg. 2016/679.
17.5 In any event, in the performance of the activities referred to in paragraphs 17.3 and 17.4 above, the Supplier shall comply with the applicable provisions of the Applicable Legislation (including Re. EU 2016/679) and the instructions given by the Customer, as data controller, with this Contract and in the course of the performance of this Contract.
18. NON-SOLICITATION
18.1 Throughout the duration of this Contract and for 12 (twelve) months following its termination, the Customer undertakes on its own behalf, in association with or on behalf of third parties, directly or indirectly, continuously or occasionally, in any form and by any means, within 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 employment, and not to enter into any collaborative relationship in any capacity, including consultancy, with any employee, director, representative, agent, collaborator, supplier and customer of the Supplier.
18.2 In the event of any breach, even partial, by the Customer of the obligations under this Article 18, the Customer shall pay to the Supplier, its successors and/or assigns, by way of penalty, an amount equal to Euro 10,000.00 per individual breach, without prejudice to the Supplier's right to take action for 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 18, it considers the aforementioned penalty to be congruous.
18.3 The Customer acknowledges and agrees that any consideration due in connection with the commitments made under this Article 18 has already been taken into account and included in the overall framework of the Contract and what it governs.
19. EFFECTS OF TERMINATION OF THE CONTRACT
19.1 In the event of termination of the Agreement, for any cause whatsoever, Supplier shall immediately and permanently cease to allow access to the Software and use of the Software Features to Customer and Users.
19.2 Without prejudice to the provisions of paragraph 19.1, following termination of the Contract, for any reason whatsoever, 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 through automated delivery methods to be agreed upon or on special optical media, against the payment of specifically provided fees.
19.3 Except as otherwise agreed between the Parties and subject to mandatory legal limitations, where the Customer has not downloaded or requested the return of data, documents, and/or content within the time period specified in paragraph 19.2, the Supplier shall have the right to permanently delete them.
19.4 It is in any case understood that the following provisions will survive the termination of the Contract, for whatever cause intervened: 7.2, 7.3, 7.5, 7.6, 7.7 and 7.8 (Supplier's Liability), 12.1 and 12.2 (Fees and
Payments), 14 (Intellectual Property Rights), 15 (Indemnification), 16 (Confidentiality), 18 (Non-solicitation), 19 (Effect of Termination of the Contract), 22 (Governing Law and Exclusive Jurisdiction), 23.2 and 23.3 (Final Provisions).
20. HEALTH AND SAFETY
20.1 The Parties undertake to cooperate and coordinate with each other for the purpose of fulfilling the obligations stipulated in Article 26 of Legislative Decree No. 81/2008, as amended and supplemented from time to time.
20.2 In the presence of interference risks, and subject to the exclusions provided for in Article 26 of Legislative Decree No. 81/2008 (e.g., with regard to services of an intellectual nature), the Parties are required to prepare a DUVRI (Documento Unico di Valutazione dei Rischi Interferenti) at the Customer's initiative and to implement joint preventive measures. It is understood that when interference, previously ruled out by the Parties, arises in the performance of the Indigo Services, the Parties shall inform each other and immediately act in order to properly comply with the applicable legal provisions.
20.3 At present, since interference risks are absent, there are no costs related to the preparation of measures to eliminate or minimize these risks.
20.4 Furthermore, the Customer declares and guarantees to comply with the mandatory legal requirements set forth in the aforementioned Legislative Decree No. 81/2008.
21. UNILATERAL CHANGES IN THE CONTRACT
The Customer acknowledges and agrees that (i) the General Conditions, and (ii) the Offer Document (including the fees provided therein) signed directly between the Supplier and the Customer may be amended by the Supplier at any time, by simple written notice (including by e-mail or with the aid of computer programs) to the Customer. 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, it being understood that the execution of the withdrawal may have - at the sole discretion of the Customer - immediate or deferred effect; in the latter hypothesis, the execution of the withdrawal may take place no later than 12 (months) after the date of the notice of exercise of the withdrawal itself, with the result that the Fees accrued in the meantime by the Supplier for the use of the Software Features by the Customer shall be unaffected and, therefore, shall be promptly paid to the Supplier as provided in the Contract. In the absence of exercise of the right of withdrawal by the Customer, in the terms and manner set forth above, the amendments to the Contract shall be deemed to be finally known and accepted by the Customer and shall become finally effective and binding.
22. GOVERNING LAW AND EXCLUSIVE PLACE OF JURISDICTION
22.1 The Contract, the Offer Document entered into directly between the Supplier and the Customer, the agreements, deeds, documents, and instruments to be signed and delivered hereunder or elsewhere, or is
governed by and shall be construed in accordance with Italian law.
22.2 For any dispute that may arise regarding the validity, interpretation, effectiveness, execution or termination of this Contract, the Court of Milan shall have exclusive jurisdiction, to the exclusion of any other competent court.
23. FINAL PROVISIONS
23.1 The Contract expresses the entire understanding between the Parties and supersedes all other prior or contemporaneous agreements, understandings, statements and representations, written or oral, regarding the same.
23.2 The Parties acknowledge that the relationship established by the Parties under the Contract confers no rights other than those stated herein.
23.3 The Customer shall not be entitled to transfer or assign this Contract, nor its rights and/or obligations under the Contract, without the prior written consent of the Supplier.
23.4 In the event that any of the clauses of these General Conditions are or become invalid or ineffective, such invalidity or ineffectiveness shall not affect the validity or effectiveness of the other clauses of the General Conditions, which shall therefore remain in force between the Parties. The Parties agree to replace the invalid or ineffective clauses with valid and effective clauses that are as close as possible to the will of the Parties.
23.5 During the performance of the Contract, the Supplier's forbearance about conduct of the Customer that does not comply with one or more of the requirements contained in the Contract or in the Applicable Legislation does not imply a waiver of the Customer's right to enforce its rights at any time.
23.6 In these General Conditions, all terms expressed in days are to be understood as calendar days.
