SAAS Agreement
GENERAL CONDITIONS FOR THE PROVISION OF SAAS SERVICES
By and between
the company AKERON S.r.l., headquartered in Lucca, Via Farnesi 141, registration number with the Companies’ Register of Lucca and Tax Code 01286330467, VAT No. 01286330467, acting through its authorized representative,
(hereinafter referred to as “PROVIDER”)
and
the Customer as identified in the Microsoft platform, acting through its authorized representative, (hereinafter, the “CUSTOMER”)(the PROVIDER and the CUSTOMER are hereinafter also each referred to as a “PARTY” and jointly as the “PARTIES”)
1. Definitions
In addition to the definitions elsewhere in the GENERAL CONDITIONS, the following definitions shall apply:
• “AKERON”: AKERON S.r.l., headquartered in Lucca, Via Farnesi 141, registration number with the Companies’ Register of Lucca and tax code 01286330467, VAT No. 01286330467.
• “AKERON COMMUNITY”: is a restricted access website, accessible at https://community.akeron.com, with material and information relevant to SAAS SERVICES.
• “AKERON TECHNOLOGY”: the set of hardware and software products (including the SOFTWARE) owned by, licensed to and operated by AKERON, to which access is granted by the CUSTOMER as part of the SAAS SERVICES.
• “AUTHORIZED USERS”: the maximum number of persons authorized, by virtue of a specific OFFER, to access and use the SAAS SERVICES, in accordance with the terms of the GENERAL CONDITIONS (including, by way of example, employees, consultants and agents appointed by the CUSTOMER in compliance with the GENERAL CONDITIONS). In order to qualify as AUTHORIZED USERS, the aforementioned persons must belong to the organization of the CUSTOMER, of a company of the CUSTOMER GROUP identified pursuant to the relevant OFFER and/or of third party service providers by virtue of a specific contract (with the CUSTOMER and/or one of the aforementioned companies of the CUSTOMER GROUP) for the performance of which there is a need to access to the SAAS SERVICES, without prejudice to the compliance with the provisions of the GENERAL CONDITIONS and of the OFFER.
• “CALENDAR QUARTER”: each period of three consecutive calendar months included in any CONTRACTUAL YEAR of the relevant OFFER, taking into account that the first CALENDAR QUARTER shall run from the effective date of the OFFER, as indicated in the OFFER itself.
• “CLOUD SPECIFICATIONS”: the document in the English language, available in the AKERON COMMUNITY, which describes, among other things, the technical specifications of the SAAS SERVICES, including the production and test environments, the SUPPORT SERVICES (as defined in the CLOUD SPECIFICATIONS), the security and back-up services as well as the update policies.
• COMMUNITY USERS: the AUTHORIZED USERS, for whom the CUSTOMER shall be fully responsible, who register individually with the AKERON COMMUNITY by receiving access keys and signing the relevant terms and conditions at the time of access.
• “CONTRACTUAL YEAR” shall mean each period of twelve (12) months commencing on the effective date of the GENERAL CONDITIONS and of each OFFER.
• “CREDIT CALCULATION PERIOD”: each CALENDAR QUARTER during which the total time of SERVICES AVAILABILITY falls below 99.5%.
• “CUSTOMER DATA”: the CUSTOMER’S information or other data, including any personal data, processed, stored or transferred by or through the SAAS SERVICES (and hosted or stored, as the case may be, in the AKERON TECHNOLOGY).
• “CUSTOMER GROUP”: the companies, identified in the OFFER, controlled by the CUSTOMER, controlling the CUSTOMER or subject to common control with respect to the CUSTOMER pursuant to applicable legislation, as long as they maintain this status of controlling subsidiary or subject to common control. To this end, “control” means: (a) holding the majority of the voting rights that may be exercised at the ordinary shareholders’ meeting; (b) holding sufficient voting rights to exercise a dominant influence at the ordinary shareholders’ meeting and/or (c) exercising a dominant influence over another company by virtue of special contractual provisions in force with such other company.
• “GENERAL CONDITIONS” or “SAAS CONTRACT”: this document, together with its annexes and related technical documentation, which form an integral and substantial part of it, containing the terms and conditions for the supply of SAAS SERVICES to the CUSTOMER under each signed OFFER.
• “INTELLECTUAL PROPERTY RIGHTS”: all intellectual and/or industrial property rights, including but not limited to patents for inventions and utility models, know-how, trade secrets, trademarks and other distinctive signs, domain names, copyright and related rights, including database rights and software rights, whether registered or not, including applications for registration and the rights of exploitation of the same.
• “INTERNET DATA CENTER”: any of the facilities outsourced by AKERON, within the European Union unless otherwise agreed with the CUSTOMER, and used by the PROVIDER to provide the SAAS SERVICES; these facilities house the AKERON TECHNOLOGY used to provide the SAAS SERVICES to the CUSTOMER.
• “OFFER”: the document entered into by and between the PARTIES identifying the SOFTWARE and related components of the SOFTWARE to be supplied, the AUTHORIZED USERS, the commercial terms and conditions of this supply and the OFFER TERM (as defined in the OFFER).
• “PROVIDER”: the company named above as a contractual party to these GENERAL CONDITIONS, which may be AKERON or a third-party company, which, upon signing the appropriate contract with AKERON, is authorized to promote and sell the SAAS SERVICES. Where the PROVIDER is AKERON, references in these GENERAL CONDITIONS to “PROVIDER” and “AKERON”, even when used cumulatively, shall be understood as relating to AKERON only.
• “SAAS SERVICES”: are the services consisting of (i) the provision of the SOFTWARE in “SaaS” (“Software as a Service”) mode via internet access (with password-protected link) to AKERON TECHNOLOGY; (ii) the provision of related services (as described in the CLOUD SPECIFICATIONS).
• “SERVICES AVAILABILITY”: is the time during which SAAS SERVICES are active during each CALENDAR QUARTER expressed as a percentage calculated on the basis of the overall time during which SUPPORT SERVICES are provided.
• “SOFTWARE”: the software, as identified from time to time in each OFFER, including the relevant updates (made available by AKERON to all customers), the ERROR correction tools and the EMBEDDED SOFTWARE, the rights of use of which are granted to the CUSTOMER subject to the terms and conditions of the GENERAL CONDITIONS; it being understood that the SOFTWARE shall be made available to the CUSTOMER only as an integrated part of AKERON TECHNOLOGY.
• “SOFTWARE DESCRIPTION”: the document, drafted in English, available in the AKERON COMMUNITY, describing the SOFTWARE as well as third party software, including open-source software, that may be included in the SOFTWARE, also indicating the link to the relevant license terms and conditions applicable for consultation by the CUSTOMER.
• “THIRD-PARTY APPLICATIONS”: shall mean the applications and software, services and/or systems, and related documentation, indicated in the CLOUD SPECIFICATIONS, to be purchased by the CUSTOMER from third parties and which are necessary for the use of the SAAS SERVICES.
2. Content of SAAS SERVICES and related restrictions
2.1. For the OFFER TERM, against payment by the CUSTOMER of the annual fees set forth therein, the PROVIDER shall grant only to the CUSTOMER a non-exclusive and non-transferable right to access and use the SAAS SERVICES, exclusively for internal use (and with the exclusion of redistribution, marketing or other non-internal purposes), within the limits and according to the procedures set forth in the GENERAL CONDITIONS and in the relevant OFFER. The CUSTOMER (i) may authorize the companies of the CUSTOMER GROUP to use the SAAS SERVICES pursuant to and within the restrictions of the GENERAL CONDITIONS and the OFFER, it being understood that the PROVIDER does not assume any direct obligation towards any company of the CUSTOMER GROUP; (ii) assumes full responsibility for the actions of the companies of the CUSTOMER GROUP and for their compliance with all provisions to which the CUSTOMER is bound, including the terms of these GENERAL CONDITIONS and the related OFFER; and (iii) undertakes to promptly notify the PROVIDER if any company is no longer part of the CUSTOMER GROUP.
2.2. The CUSTOMER may increase the SAAS SERVICES only by signing a proper separate document, linked to an OFFER, which shall indicate the applicable commercial conditions (“ORDER FORM”).
2.3. The CUSTOMER acknowledges and accepts that (a) in order to verify the CUSTOMER’s compliance with the GENERAL CONDITIONS and each related OFFER, the use of the SAAS SERVICES may be monitored and that the SOFTWARE contains tools capable of monitoring the number and type of users that simultaneously use the SOFTWARE covered by the OFFER and that (b) the technical documentation available in the AKERON COMMUNITY includes an end-of-life policy of the SOFTWARE.
2.4. The CUSTOMER expressly acknowledges and accepts that the SOFTWARE may include third party software, as specified in more detail in the SOFTWARE DESCRIPTION (“EMBEDDED SOFTWARE”), which is subject not only to these GENERAL CONDITIONS but also to the terms and conditions of use specific to such software that are available in the AKERON COMMUNITY, at the following address https://community.akeron.com/legal/legal-embedded-software-terms., which form an integral part of these GENERAL CONDITIONS. With reference to such EMBEDDED SOFTWARE, in addition to the other provisions applicable under these GENERAL CONDITIONS, it is understood that (i) the CUSTOMER shall not have any right to use the EMBEDDED SOFTWARE separately from, and/or independently of, the AKERON TECHNOLOGY, and (ii) in the case of any discrepancy between these GENERAL CONDITIONS and the specific terms and conditions of the EMBEDDED SOFTWARE, the latter shall prevail.
2.5. The CUSTOMER expressly authorizes the PROVIDER to entrust part of the SAAS SERVICES to AKERON and/or the owners of the EMBEDDED SOFTWARE, it being understood that the PROVIDER shall be the only person accountable towards the CUSTOMER for such activities.
2.6. The CUSTOMER acknowledges and accepts that its decision to purchase the SAAS SERVICES is not subject either to the development of new SAAS SERVICES functionality or features, or to additional services beyond the existing SAAS SERVICES.
2.7. As consideration for the rights granted to the CUSTOMER pursuant to this OFFER and the GENERAL CONDITIONS, the CUSTOMER shall pay the annual fee agreed through the platform.
2.8. In case of renewal of the OFFER pursuant to paragraph 3 above, the annual fee shall be recalculated on the basis of the price list applicable at the time of the renewal.
2.9. The CUSTOMER acknowledges and accepts that: (i) the annual fee accrues on the basis of the purchased SAAS SERVICES, regardless of their actual use; (ii) the payment obligation cannot be modified and the paid fees are not refundable under any circumstances; and (iii) the number of AUTHORIZED USERS and SOFTWARE components agreed by the PARTIES may not be reduced during the OFFER TERM.
2.10. In case of additional purchases, the above-mentioned annual fee shall be increased as indicated in the relevant ORDER FORM.
2.11. The indicated fees are exclusive of VAT. Any and all taxes, duties, withholdings, or similar charges applicable to the SAAS SERVICES shall be borne by the CUSTOMER, with the exception of what the law expressly places upon the PROVIDER.
2.12. The overall amount of the first annual fee shall be invoiced to the CUSTOMER at the OFFER’s effective date as indicated in paragraph 3 above. The subsequent annual fees shall be invoiced to the CUSTOMER in advance on yearly basis.
2.13. The CUSTOMER undertakes to give to the PROVIDER complete and accurate billing information and to notify the same of any changes to such information.
2.14. The invoiced amounts shall be paid by the CUSTOMER by and no later than 30 (thirty) days after the invoice date.
2.15. The entity that shall invoice and receive the payment shall be that of the Microsoft policy.
3. Obligations and warranties of the CUSTOMER; CUSTOMER indemnification
3.1. The CUSTOMER shall ensure that (i) the access and/or use of SAAS SERVICES and AKERON COMMUNITY, is fully compliant with the GENERAL CONDITIONS and (ii) the access and use of AKERON COMMUNITY is allowed only to the COMMUNITY USERS for whose conduct the CUSTOMER shall be in any case responsible.
3.2. The CUSTOMER undertakes to promptly notify the PROVIDER in writing in case an AUTHORIZED USER intends to terminate its employment relationship with the CUSTOMER, and in any case within no later than two days from the termination of this employment relationship in order to allow the PROVIDER to disable the access of the concerned AUTHORIZED USER to, inter alia, the AKERON COMMUNITY and the support system under the SAAS SERVICES.
3.3. The CUSTOMER warrants that it will adopt and maintain, throughout the OFFER TERM, appropriate internal procedures and reasonable security measures to ensure that the SAAS SERVICES and related documentation are used according to the terms and procedures specified in these GENERAL CONDITIONS as well as according to all applicable laws and regulations, including the laws governing INTELLECTUAL PROPERTY RIGHTS, data confidentiality, export control and transmission of technical or personal data, giving all necessary cooperation and access to information as required by the PROVIDER in order to fulfil its legal obligations pursuant to these GENERAL CONDITIONS and the related OFFERS. The CUSTOMER shall be responsible for identifying and authenticating all AUTHORIZED USERS and for monitoring the use of SAAS SERVICES by AUTHORIZED USERS, ensuring compliance of such use with these GENERAL CONDITIONS. The CUSTOMER also warrants that it shall adopt and maintain adequate internal procedures to ensure that (a) any access to or use of the SAAS SERVICES complies with any authorization/restrictions established for each class of AUTHORIZED USERS; (b) the AUTHORIZED USERS keep confidential and do not disclose to third parties their access credentials, including username and password. The CUSTOMER acknowledges and agrees to use reasonable security precautions to provide access to the AKERON TECHNOLOGY (including EMBEDDED SOFTWARE) by its employees or authorized third parties under these GENERAL CONDITIONS and to prevent any unauthorized access and/or use, undertaking in any case to immediately inform the PROVIDER thereof. By way of example, the CUSTOMER shall neither permit nor help, neither directly nor indirectly, third parties to (i) supply, grant the right to access and/or use the SAAS SERVICES to persons other than AUTHORIZED USERS, (ii) copy, assign (re)sell, sub-license distribute, disclose and/or grant the use of SAAS SERVICES and/or AKERON TECHNOLOGY to third parties, in whole or in part (iii) assign and/or attribute to any third party any right (of use and/or of other nature) with reference to the EMBEDDED SOFTWARE together with the AKERON TECHNOLOGY or independently and/or separately from the same, (iv) use the SAAS SERVICES to store or transmit material that is defamatory, offensive or otherwise illegal or that infringes third party rights, store or transmit material in breach of rights under data protection legislation or unlawfully use the SAAS SERVICES, (v) use the SAAS SERVICES to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious codes, files, scripts, agents or programs; (vi) damage or alter the integrity and/or functionality of SAAS SERVICES and/or third party data contained therein, (vii) without prejudice to mandatory legal provisions, modify, adapt, translate, disassemble, decode, decompile, transform, reproduce or copy, create a derivative work from or otherwise retrieve the source code, algorithms or other underlying elements from any part of AKERON TECHNOLOGY, or attempt to behave as such, (viii) access, modify or destroy any information of any of AKERON’s and/or the PROVIDER’s customers by fraudulent means or through any device or even just attempt to do so, or (ix) remove, delete, alter or otherwise modify copyright notices or ownership notices identifying the AKERON TECHNOLOGY, thereby expressly undertaking to comply with them in the context of the use of SAAS SERVICES and/or (x) disclose, directly or indirectly, to parties other than AUTHORIZED USERS any information or data contained in or relating to AKERON TECHNOLOGY (including EMBEDDED SOFTWARE) or related materials or use the AKERON TECHNOLOGY, in whole or in part, to provide services to third parties other than the CUSTOMER and not belonging to the CUSTOMER GROUP.
3.4. The CUSTOMER warrants that it is the owner and/or is entitled to use the data (including CUSTOMER DATA), information and/or content included in AKERON TECHNOLOGY and that it is solely responsible therefor.
3.5. The CUSTOMER agrees to indemnify and hold harmless AKERON and/or the PROVIDER and its subcontractors from any dispute, action and claim for damages by any third party, for all damages (including legal and consulting fees) suffered by them as a result of a breach of the terms and conditions of these GENERAL CONDITIONS and/or of an OFFER by the CUSTOMER or otherwise attributable to the CUSTOMER.
4. SERVICES AVAILABILITY; Amendments and Suspension
4.1. The PROVIDER undertakes to use its most reasonable efforts to make the SAAS SERVICES available 24 hours a day, 7 days a week in accordance with these GENERAL CONDITIONS and subject to the limits described in the CLOUD SPECIFICATIONS. In particular, the PROVIDER shall use its best endeavors to maintain the production environment for the purchased SAAS SERVICES at a level of SERVICES AVAILABILITY equal or higher than 99.5% (ninety-nine point five percent) during each CALENDAR QUARTER. With respect to each CREDIT CALCULATION PERIOD, the CUSTOMER shall be entitled to be credited an amount equal to 5% (five percent) of the portion of annual fee referable to the relevant CREDIT CALCULATION PERIOD for each 1% (one percent), or fraction thereof, of deviation from the aforementioned level of SERVICES AVAILABILITY, up to a maximum credit equal to 20% (twenty percent) of the portion of annual fee due for the relevant CREDIT CALCULATION PERIOD. The CUSTOMER may submit in good faith a request for credit under these provisions, subject to forfeiture, within no later than 15 (fifteen) days after the expiration of the CREDIT CALCULATION PERIOD in which the aforementioned level of SERVICES AVAILABILITY has not been complied with. The amounts accrued in favor of the CUSTOMER under these provisions shall be credited to the latter (in the form of a credit note or similar document) by offsetting them against the invoices subsequently issued by the PROVIDER. The provisions of this paragraph 4.1 define the entire extent of the PROVIDER’s liability with respect to the SERVICES AVAILABILITY and the CUSTOMER’s sole and exclusive right and remedy in the event that the level of SERVICES AVAILABILITY is lower than that provided for herein.
4.2. AKERON may unilaterally and at its own discretion, subject to paragraph 9.1(ii), modify or update the SAAS SERVICES, the CLOUD SPECIFICATIONS (e.g. infrastructure, security, configuration, also with respect to changes in technology and industry standards) and/or other technical documentation relating to the SAAS SERVICES (without prejudice to the CUSTOMER’s commitment to verify, by accessing the AKERON COMMUNITY, any changes made by AKERON to this documentation, there being no duty of notification with this respect neither on AKERON nor on the PROVIDER).
4.3. The CUSTOMER undertakes to provide its COLLABORATION (as defined in the CLOUD SPECIFICATIONS) and to verify with professional diligence the actual existence of an ERROR (as defined in the CLOUD SPECIFICATIONS) before submitting a request for support to the PROVIDER in accordance with the SUPPORT SERVICES provisions of the CLOUD SPECIFICATIONS. If the PROVIDER ascertains that the reported ERROR does not exist and/or that the claimed malfunctioning or lack of compliance does not amount to an ERROR, the PROVIDER shall be entitled to be refunded by the CUSTOMER for the costs and expenses incurred for such verification, to be calculated on the basis of the servicing time required, taking into account the PROVIDER’s price list in force at the time of such verification.
4.4. The SAAS SERVICES may be suspended by the PROVIDER after 7 (seven) days from the notice to the CUSTOMER without any remedy taken by the CUSTOMER in case of (i) delays in the payments due, with indication of the amounts not paid; and/or (ii) breach of the terms of the GENERAL CONDITIONS and/or of the OFFER; if there is a blatant breach of paragraphs 2.1, 2.4, 3, 6 and/or 8 the suspension may be carried out without notice.
5. Security and integrity of CUSTOMER DATA
5.1. As part of the SAAS SERVICES, the PROVIDER undertakes to adopt and maintain adequate tools in order to protect the security, confidentiality and integrity of the CUSTOMER DATA from unauthorised access, without prejudice to the CUSTOMER’S responsibility to guarantee, to the extent of its own competence, an adequate level of security to protect the CUSTOMER DATA (including, by way of example, the maintenance of the technology and procedures necessary for the security of the CUSTOMER’S Internet connection).
5.2. The PROVIDER may not access, modify or disclose the CUSTOMER DATA, unless this is necessary to provide the SAAS SERVICES or if requested by the CUSTOMER.
5.3. Provided that the PROVIDER complies with the undertakings set out in this paragraph and except for willful misconduct and gross negligence, the PROVIDER shall in no way be held liable if unauthorized third parties have access to the CUSTOMER DATA or other data. In this case, the PROVIDER undertakes to use all reasonable efforts to promptly notify the CUSTOMER of any unauthorized access to the CUSTOMER DATA of which the PROVIDER has become aware and to remedy any breach of security that resulted in the unauthorized access.
6. Intellectual Property
6.1. The CUSTOMER acknowledges and agrees that all INTELLECTUAL PROPERTY RIGHTS in or relating to SAAS SERVICES and AKERON TECHNOLOGY (and related documentation) as well as the information and materials on the AKERON COMMUNITY are and shall remain the exclusive ownership of AKERON and/or its licensors (including but not limited to the licensors of the EMBEDDED SOFTWARE). Except as expressly permitted for the purpose of the CUSTOMER’s use of the SAAS SERVICES, no provision of the GENERAL CONDITIONS and/or the OFFER is intended to, nor may be interpreted in order to, transfer and/or grant the CUSTOMER or third parties any such rights. The CUSTOMER acknowledges and agrees that “Akeron”, and all signs containing the term “Akeron”, as well as those included in the AKERON COMMUNITY, the name of the products and logos associated with the SAAS SERVICES (including EMBEDDED SOFTWARE) are trademarks of AKERON and/or third parties on which the CUSTOMER may not claim any right. The CUSTOMER undertakes not to use or attempt to register in any country in the world any trademark, distinctive sign and/or trade name which may be suitable to compromise in any way the aforementioned trademarks and distinctive signs.
6.2. The PROVIDER acknowledges and agrees that all INTELLECTUAL PROPERTY RIGHTS in or relating to the CUSTOMER DATA are and shall remain the exclusive ownership of the CUSTOMER and/or its licensors.
7. Liability for infringement of third parties’ INTELLECTUAL PROPERTY RIGHTS
7.1. In the event of disputes regarding the alleged infringement by SAAS SERVICES of third-party’s INTELLECTUAL PROPERTY RIGHTS, the PROVIDER may, at its own discretion, decide to take on the CUSTOMER’s defense at its expense and/or enter into, still at its expense, an agreement or settlement that the PROVIDER considers useful to resolve the said disputes, provided that the CUSTOMER: (i) promptly informs the PROVIDER of any received claim; (ii) authorizes the PROVIDER to take full control of defense activities in court and/or dispute handling activities; (iii) unconditionally cooperates with the PROVIDER in the latter’s defense in court and/or in handling the dispute; and (iv) refrains from independently taking any initiative that could damage the PROVIDER’s and/or AKERON’s position, from making any admission or from adopting, with acts or omissions, any conduct capable of settling the dispute without having been expressly authorized to do so in writing by the PROVIDER and/or AKERON.
In the event of disputes under this paragraph or in other circumstances where the PROVIDER reasonably deems it appropriate in its discretion, the PROVIDER may at its own expense and in its sole discretion adopt one of the following remedies with respect to the AKERON TECHNOLOGY or the disputed part thereof: (a) make it legitimate for the CUSTOMER to use it; (b) replace it with an alternative technology that has equivalent functionality without infringing third party rights; or (c) modify it in such a way that the rights of third parties invoked by the claim are not infringed. In the event the PROVIDER determines that none of the foregoing remedies is commercially viable, the PROVIDER may declare the relevant OFFER terminated and refund to the CUSTOMER the annual fee already paid by the latter for the year in progress as of the termination date, to be calculated on a pro-rata basis.
7.2. The PROVIDER shall in no way be held liable for any infringement of third parties’ rights, including INTELLECTUAL PROPERTY RIGHTS, originating from the use of (i) THIRD-PARTY APPLICATIONS; and (ii) SAAS SERVICES in combination or association with software, products and/or services not provided by the PROVIDER and/or in breach of these GENERAL CONDITIONS and/or of one or more OFFERS.
7.3. The CUSTOMER acknowledges and accepts that, to the fullest extent permitted by applicable law and without prejudice to the cases of willful misconduct or gross negligence, the remedies set out above are the only remedies available to the CUSTOMER and the limits of the PROVIDER’s liability for infringement of INTELLECTUAL PROPERTY RIGHTS belonging to third parties.
8. Confidentiality
8.1. For the purpose of providing and using the SAAS SERVICES, the PARTIES shall exchange confidential information (including, by way of example, the codes for accessing the SAAS SERVICES and other technical and commercial information related thereto), which they hereby undertake not to disclose to third parties without the express prior consent of the other PARTY. It is understood that the contents of these GENERAL CONDITIONS and the relevant OFFERS shall also be deemed to be confidential information. Confidential information shall not include information provided by either PARTY which at the time of disclosure: (i) is already in the public domain or enters the public domain with no breach of this agreement by the PARTY that has received this information; (ii) was already known to the other PARTY, provided that such other PARTY has not become aware of that due to default on previous confidentiality obligations or in any case unlawfully; or (iii) has already been developed by the other PARTY in a totally independent way, without using the confidential information of the other PARTY.
Any PARTY that is required to disclose the other PARTY’s confidential information to comply with any legal provision or lawful order of any authority shall not act in breach of this agreement, provided that in this case the PARTY receiving the order promptly notifies the PARTY owning the confidential information in writing, so that the latter may seek the most appropriate court remedies to protect its interests or any other appropriate remedy, or release the other PARTY from its confidentiality obligation.
8.2. The PARTIES undertake to take all appropriate measures to maintain the secrecy of the content of all confidential information, extending this obligation of confidentiality also to their employees and consultants.
8.3. The obligations applicable to the confidential information provided therein shall be effective for a period of 5 (five) years from the date on which the information was disclosed or, where applicable, for the longest period during which such information is protected, so long as such information is covered by INTELLECTUAL PROPERTY RIGHTS.
9. Warranty
The PROVIDER warrants, for the OFFER TERM: (i) the compliance of the components of the SOFTWARE, included in the SAAS SERVICES provided to the CUSTOMER, with the SOFTWARE DESCRIPTION, limited to the presence of said components and without prejudice to any ERRORS with respect to which the SUPPORT SERVICES shall apply. Any minor differences between the SOFTWARE components and the SOFTWARE DESCRIPTION shall not be considered essential. The CUSTOMER acknowledges and accepts that the SOFTWARE components, even if compliant with the terms of the SOFTWARE DESCRIPTION, may present ERRORS, flaws, limitations or operating defects, with respect to which the PROVIDER, to the maximum extent permitted by law, shall in any case not be liable under this warranty and that (ii) the changes made pursuant to paragraph 4.2 will neither substantially reduce, to the detriment of the CUSTOMER, the security level of the SAAS SERVICES as set forth in these GENERAL CONDITIONS nor substantially alter, to the detriment of the CUSTOMER, the regulation terms of the SERVICES AVAILABILITY. In the event that, during the OFFER TERM, the CUSTOMER detects a breach of the provided warranties, the CUSTOMER shall promptly notify the PROVIDER, providing all relevant details, within and no later than 10 (ten) days from the discovery and in any case no later than the OFFER TERM. As the sole and exclusive remedy available to the CUSTOMER, the PROVIDER shall intervene in the manner it deems appropriate at its own discretion, to remedy, at its own care and expense, the reported matters.
Without prejudice to any different provisions in these GENERAL CONDITIONS, the CUSTOMER is not provided, either directly or indirectly, with other express or implicit warranties in relation to the OFFER, including, without limitation, warranties on the SAAS SERVICES being suitable for specific purposes, on their operations without interruptions or errors, on their accuracy or on the fact that their use do not infringe third party rights. No warranty is provided with respect to THIRD-PARTY APPLICATIONS. Furthermore, the CUSTOMER represents that it has not relied on any statement not expressly reported in these GENERAL CONDITIONS.
The limitations of warranties and remedies set forth in this paragraph shall apply to the fullest extent permitted by applicable law and without prejudice to cases of willful misconduct and gross negligence.
10. Exclusions and Limitation of Liability
10.1. The CUSTOMER acknowledges and accepts that, to the maximum extent allowed by the applicable law, the PROVIDER shall in no way be held liable for damages, of any nature and type, and in general for any detrimental consequence deriving (a) from malfunctions, flaws, limitations and/or ERRORS of the SAAS SERVICES, without prejudice to the PROVIDER’s obligation, in the event of ERRORS, to provide the SUPPORT SERVICES; (b) from the failure to use or incorrect use of the ERROR correction tools issued under these GENERAL CONDITIONS; (c) from the failure, incomplete or delayed resolution of ERRORS in the event of failure by the CUSTOMER to provide a timely and full COLLABORATION in the management of the ERRORS themselves or due to causes attributable to third parties; (d) from the malfunctioning dependent by the CUSTOMER’s tools, or in any case attributable to the CUSTOMER, by the Internet, third party services and/or THIRD-PARTY APPLICATIONS.
Any liability of the PROVIDER is also excluded in case of suspension/interruption in the supply of SAAS SERVICES which is due to the fact that (i) the PROVIDER is required to intervene in an emergency or to resolve security issues falling within the responsibility of third parties, including, by way of mere example, interventions regarding the INTERNET DATA CENTRES; (ii) tampering or interventions not authorized by the PROVIDER on the SAAS SERVICES on the part of the CUSTOMER or third parties. In such circumstances, the SAAS SERVICES shall be restored once the PROVIDER has determined that the causes that had resulted in the suspension/interruption of SAAS SERVICES have been effectively removed or eliminated. Furthermore, the CUSTOMER acknowledges and accepts that the PROVIDER shall in no way be held liable for the incorrect or unlawful use of the SAAS SERVICES.
10.2. To the fullest extent permitted by applicable law, and in any case without prejudice to cases of willful misconduct and gross negligence, in case the PROVIDER is held liable, for any reason, cause or title whatsoever, in relation to these GENERAL CONDITIONS and/or to one or several OFFERS (also with reference to EMBEDDED SOFTWARE), the maximum and aggregate liability of the PROVIDER shall not exceed (a) in each CONTRACTUAL YEAR of an OFFER, the fees paid by the CUSTOMER in the same CONTRACTUAL YEAR in relation to the OFFER from which the liability arose or, (b) in case the reference OFFER cannot be identified, the maximum aggregate amount, in each CONTRACTUAL YEAR of the GENERAL CONDITIONS, equal to the last annual fee paid by the CUSTOMER in relation to the SAAS SERVICES.
It is understood that, except in cases of willful misconduct and gross negligence, the provisions on the maximum amount of the PROVIDER’s liability set forth here above shall apply (i) whenever a liability may arise for the PROVIDER, unless a different remedy is provided for; and (ii) also to any liability relating to any dispute that is raised or settled, either judicially or extra-judicially, following the termination of an OFFER or of the GENERAL CONDITIONS. The liability of the PROVIDER, within the above-mentioned limits, shall in any case only relate to direct damage, with the express exclusion of any other type of damage (including, by way of example, indirect and consequential damage).
10.3. To the fullest extent permitted by law, the CUSTOMER acknowledges and accepts that (i) any claim arising out of these GENERAL CONDITIONS and/or the related OFFERS for any reason whatsoever (including, without limitation, cases of liability in contract and/or in tort) shall be raised by the CUSTOMER exclusively against the PROVIDER, with express waiver by the CUSTOMER of claims against AKERON and/or other parties different from the PROVIDER; and that, without prejudice to the foregoing, in any event, where applicable (ii) the limitations and exclusions of liability provided for in these GENERAL CONDITIONS in favor of the PROVIDER shall also be deemed to be in favor of AKERON.
11. Duration and Prevailing terms
11.1 The GENERAL CONDITIONS shall apply from the effective date of the first OFFER signed between the PARTIES for a duration of 3 (three) CONTRACTUAL YEARS, after which they shall be tacitly renewed for successive periods of one CONTRACTUAL YEAR and shall apply to all OFFERS signed or renewed between the PARTIES during the above-mentioned duration (even if they expire after the same). The SAAS SERVICES may be used by the CUSTOMER for the OFFER TERM on the basis of these GENERAL CONDITIONS. Either PARTY may exercise the right of cancellation, in order to avoid the tacit renewal of these GENERAL CONDITIONS, by notifying the other PARTY in writing, by registered letter with return receipt or by PEC, at least 90 (ninety) days prior to the original expiration date or any subsequent renewal period.
11.2 Unless otherwise expressly agreed upon, in writing, between the PARTIES (i) the general terms and conditions of the provision of SAAS SERVICES shall be contained in the sole provisions of this SAAS CONTRACT, which shall prevail, in case of conflict, over the provisions of an OFFER; and (ii) the application of any provisions of general terms and conditions prepared by the CUSTOMER, as well as of terms and conditions contained in any document and/or statement sent by the CUSTOMER to the PROVIDER in case they are additional and/or in contrast with the documents prepared by the PROVIDER is excluded.
12. Termination and withdrawal
12.1. Either PARTY may terminate each OFFER in relation to which there has been a breach of the provisions of the same OFFER and/or of these GENERAL CONDITIONS if, after sending the defaulting PARTY a warning notice containing a description of the claimed default with a 30 (thirty) days’ term to remedy the default, the defaulting PARTY has failed to remedy the default in question within the granted term.
12.2. Each PARTY may withdraw from each OFFER, simply by sending a written notice, in the event of other PARTY’s insolvency and/or the application for admission to insolvency proceedings and/or liquidation and/or in the case of transfer of the other PARTY’s assets to creditors, in compliance with, and within the maximum extent allowed by applicable law.
12.3. The PROVIDER may declare the immediate termination, pursuant to article 1456 of the Italian Civil Code, of each OFFER in relation to which there has been a default, through a simple written notice to the CUSTOMER, in the event of:
(b) breach of even one of the provisions of paragraphs 2.1, 2.4, 3, 6, and/or 8 of the GENERAL CONDITIONS.
12.4. The PARTIES acknowledge and accept that the GENERAL CONDITIONS, and any related OFFER, shall cease to be effective between the PARTIES automatically and with immediate effect if the agreement under which the PROVIDER has been authorized by AKERON to promote and sell the SAAS SERVICES is terminated for any reason whatsoever. In this case, AKERON shall be entitled to request the assignment of these GENERAL CONDITIONS, and of any related OFFER, in favor of itself or of a third party identified by AKERON (which performs for AKERON a similar activity to that of the PROVIDER); in case AKERON exercises this right, the CUSTOMER hereby gives its consent to such assignment. It remains understood the PROVIDER’s right to declare the immediate termination of an OFFER in the event of termination or cancellation, for any reason or cause, of the relevant deed of appointment as data processor.
12.5. The termination or cancellation, for any reason whatsoever, of an individual OFFER shall not affect the other OFFERS and/or these GENERAL CONDITIONS, which shall remain in force between the PARTIES.
13. Effects of cancellation of an OFFER
Upon termination or cancellation, for any reason whatsoever, of an OFFER: (i) all rights to access and use the SAAS SERVICES covered by the OFFER shall immediately cease, without prejudice to the CUSTOMER’s payment obligations arising prior to the date of termination or cancellation; (ii) within 15 (fifteen) days from the date of termination or cancellation, the CUSTOMER shall return to the PROVIDER all materials provided to the latter under the OFFER.
The CUSTOMER may obtain, at its own expense, a back-up copy of the database relating to the CUSTOMER DATA, it being understood that the request must be submitted in writing within and no later than 15 (fifteen) days from the date of termination or cancellation of the OFFER. Upon the expiration of this term, the PROVIDER shall have no obligation to maintain or keep on record the CUSTOMER DATA, which shall be permanently destroyed or deleted subject to any prohibitions or requirements imposed by applicable law.
The termination or cancellation, for any reason whatsoever, either in whole or in part, of an OFFER shall not entitle the CUSTOMER to seek the total or even only partial refund for the amount paid under the OFFER.
All provisions set out in these GENERAL CONDITIONS, and/or in an OFFER that are consistent with the termination and/or cancellation, for any reason whatsoever, of these GENERAL CONDITIONS (g. paragraphs 3.5, 6,7,8,10 and 17.3) shall nevertheless remain in force between the PARTIES.
14. Data processing
14.1. The PROVIDER and the CUSTOMER undertake to comply with the provisions of the current legislation on the protection of personal data (“PERSONAL DATA PROTECTION REGULATION”), meaning the European Personal Data Protection Regulation No. 679/2016 (hereinafter, “GDPR”) as well as the national implementation legislation, the regulatory and secondary legislation in force in the European Union, as subsequently amended or supplemented, including any guidance and measures issued by the Italian Data Protection Authority (“Autorità Garante”).
The CUSTOMER acknowledges and accepts that the PROVIDER shall process the CUSTOMER’s personal data for the performance of these GENERAL CONDITIONS and, more generally, for the management of the relationship with the CUSTOMER, in accordance with article 6, paragraph 1, letter. b) GDPR and as detailed in the privacy policy to be provided by the PROVIDER upon signing the GENERAL CONDITIONS; the provision of this data is therefore necessary and does not require the consent of the data subject. The COMMUNITY USERS, whose personal data shall be processed by AKERON, shall receive the relevant privacy policy from AKERON, pursuant to Article 14 of GDPR, when registering in the AKERON COMMUNITY. Any refusal to provide the requested data or the provision of inaccurate data may result in the impossibility to establish, continue and/or perform the contractual relationship between the PARTIES.
14.2. The PARTIES acknowledge that for the purposes of the PERSONAL DATA PROTECTION REGULATION, as per the deed of appointment under Annex 1, the CUSTOMER is the data controller or processor of the personal data processed under this SAAS CONTRACT and the PROVIDER is appointed as data processor or sub-processor pursuant to Article 28 GDPR and as detailed in the deed of appointment.
15. Advertising and communications
The CUSTOMER shall give the PROVIDER and AKERON the right to use its trademark for publication in communication materials (such as company profile, product brochures, website, offering documents and advertising campaigns) in order to indicate the CUSTOMER in the reference list of the PROVIDER and AKERON. The CUSTOMER shall also grant the PROVIDER and AKERON the right of publishing press releases and/or articles in newspapers with reference to the agreement entered into with the CUSTOMER, which shall contain the following information: details of the CUSTOMER, possibly with the company profile available on the CUSTOMER’s website, date of the agreement signed with the CUSTOMER and a summary description of the project. It is understood that prior authorization must be requested to the CUSTOMER, which may not be unjustifiably denied, delayed or subject to conditions, in the case of the inclusion of further information on the CUSTOMER, the publication of articles in specialist and non-specialist publications and/or specific case histories on the project.
16. Entire agreement and amendments
16.1. The PARTIES mutually acknowledge and agree that these GENERAL CONDITIONS and the related OFFERS constitute the entire agreement existing between the PARTIES with respect to their subject matter and that they therefore supersede any previous agreement between the PARTIES having the same subject matter.
16.2. No amendment or supplement to these GENERAL CONDITIONS and/or an OFFER shall be effective unless it has been approved in writing by both PARTIES, except for changes to the technical documentation (including without limitation, SOFTWARE DESCRIPTION, CLOUD SPECIFICATIONS, terms and conditions of EMBEDDED SOFTWARE) which, as acknowledged and accepted by the CUSTOMER, may be freely updated by AKERON as set forth under paragraph 4.2.
17. Final provisions
17.1. Without prejudice to paragraph 12.4, these GENERAL CONDITIONS and all related OFFERS may not be assigned or transferred to third parties, whether required by applicable law or otherwise, in whole or in part, without the prior written consent of the other PARTY (which shall not be unreasonably withheld). Under exceptional circumstances, such consent shall not be required, but only a written notice, within 5 business days after the completion of the relevant transaction, shall be given, in the event of (a) capital transactions including, without limitation to, merger, demerger, acquisition, corporate reorganization, sale of all or specific business assets, and/or (b) transfer of the same by each PARTY to another parent company, subsidiary of such PARTY or company under common control. It is understood, however, that (i) the assignee shall agree and shall be bound to comply with all terms and conditions accepted by the assigning party; (ii) the PROVIDER reserves the right to make any changes to the OFFER; and that (iii) under no circumstances shall the CUSTOMER be allowed to assign or transfer, for any reason whatsoever, to parties that are direct competitors of the PROVIDER and/or AKERON. The PARTIES acknowledge vis-à-vis each other that any assignment by one PARTY in breach of the provisions in this paragraph shall be considered ineffective towards the other PARTY. In any event, in such cases, without prejudice to any other available remedy, the non-defaulting PARTY shall have the right to terminate with immediate effect, pursuant to Article 1456 of the Italian Civil Code, the individual OFFER affected by the assignment or, in the case of assignment of all OFFERS, these GENERAL CONDITIONS and each related OFFER.
17.2. The PARTIES shall not be liable for any non-performance resulting from force majeure (including, without limitation, acts of war or threats of war, epidemics, pandemics and their developments, import or export embargoes, accidents, fires). This provision is in any case not applicable with respect to the performance of payment obligations, which may in no case be delayed or suspended by virtue of force majeure.
17.3. These GENERAL CONDITIONS, as well as each OFFER, shall be governed by Italian law. Any dispute relating to the validity, performance, termination or interpretation of the GENERAL CONDITIONS and/or of each OFFER shall be subject to the exclusive jurisdiction of the Court of Milan.
17.4. The failure by either PARTY, on one or more occasions, to exercise – or delay in exercising – a right resulting from these GENERAL CONDITIONS shall not be construed as a waiver of that right or as tolerance of any breach by the other PARTY. Any waiver of the exercise of the rights granted to the PARTIES under these GENERAL CONDITIONS shall in all cases be expressed in writing.
17.5. The PARTIES shall implement, each to the extent of its responsibilities, the rules and regulations on health and safety in the workplace currently in force. With reference to the performance of SAAS SERVICES, the PARTIES declare that no interference risks are identified in that SAAS SERVICES qualify as services that are not performed in the places referred to in Article 26(1) of Legislative Decree no. 81/2008 and therefore Article 26 of Legislative Decree no. 81/2008 shall not apply.
Pursuant to and for the purposes of Articles 1341 and 1342 of the Italian Civil Code, the CUSTOMER declares that it has read and expressly and specifically approves the provisions set out in the following paragraphs of these GENERAL CONDITIONS:
3.5 (Indemnification by the CUSTOMER), 4.1 (Limitation of liability, forfeiture and sole remedy), 4.2 (AKERON’s right to unilateral changes and CUSTOMER’s exclusive responsibility for verifying the changes unilaterally made by AKERON), 4.3 (Refund for wrongly reporting of ERRORS), 4.4 (Suspension of SAAS SERVICES), 5.3 (Exclusions of liability), 7.1 (PROVIDER’s right to declare the OFFER terminated), 7.2 (Exclusions of liability), 7.3 (Limitation of liability and exclusive remedies provided for in case of infringement of INTELLECTUAL PROPERTY RIGHTS of third parties), 8.1. and 8.2. (Confidentiality; Non-Disclosure and commitment to bind third parties), 9.1 (Forfeiture for reporting of a non-Conformity; Sole remedy), 9.2 (Exclusion of other warranties), 10.1 (Exclusions of liability), 10.2 (Limitations of liability), 10.3 (Waiver by the CUSTOMER; Exclusions and limitations of liability), 11.1 (Tacit Renewal), 12.3 (Immediate Termination by the PROVIDER), 12.4 (Assignment of the GENERAL CONDITIONS] and immediate cessation of the OFFER), 12.5 (Consequence of the termination or cessation of an individual OFFER), 13.2 (Forfeiture for requesting back-up copy concerning the CUSTOMER DATA), 13.3 (No refund), 17.1 (Assignment of the GENERAL CONDITIONS and the OFFERS; PROVIDER’s right to make changes to the OFFER; Immediate termination), 17.2. (Force majeure), 17.3. (Exclusive jurisdiction).
Annex 1: Deed of appointment as data processor/sub-processor.
