4WS.Platform APaaS Service General Conditions
The 4WS. Platform APaaS service supply (hereinafter referred to as the “Service”) is governed by this agreement (hereinafter referred to as the “Agreement” or the “Contract”) between Sinesy Srl, an Italian Company, with registered office in Via Comunale di Camino, 22/D, 31046 Oderzo (TV), Italy, VAT n. 04016390264 (hereinafter referred to as the “Supplier”) and the individual or the corporation, or the entity, public or private, or the association, identified/or the client in the Application Form (hereinafter referred to as the “Client”) jointly also referred to as the “Parties”. The Agreement is formed by this terms and conditions (hereinafter referred to as “Conditions”) and the following documents, which form, for all legal purposes, integral part:
In this Agreement the following definitions shall apply to the following terms:
Application: the software applications, including functionalities and data, created, designed, used and managed by the Client exclusively through the Service;
Cloud Provider: the company that provides the hosting and the cloud infrastructure for the Service;
Confidential Information: (i) the information concerning the Supplier considered as confidential acknowledged by the Client for whatsoever reason connected to the performance of the Agreement and/or (ii) the information concerning the Supplier which, due to their nature, contents or circumstances in which they are disclosed, usually are considered as confidential. At this respect the following information, including but not limited to, the performance, characteristics, configurations and the technical information of the Service, quotations, product developing plan are considered as the Supplier confidential information;
Control Panel: the area devoted to access and to manage the Service by the Client by entering its own credential (login and password);
Price List: Price List of the Service included in the Purchase Order;
Purchase Order: the document filled in by the Client with all the required data that constitutes the formal activation of the Service request;
Service: 4WS.Platform APaaS (Application Platform as a Service), including hosted software products and services, the software applications created with it, downloadable components and documentation. The Service is available in different versions. The Client can choose one or more of them as indicated in the Purchase Order;
Software license to use: the license granted by the Supplier to the Client for the use of the software concerning the Service offered;
Technical Assistance: the assistance activity provided by the Supplier in order to solve possible problems affecting the Service. It is performed at the conditions provided in the annex Technical Assistance;
Technical Specifications: the information published on the 4wsplatform.com web site containing the technical characteristics of the Service;
2. Object and Execution of the Contract
This Agreement governs Client’s access and use of the Service.
The Contract execution procedure on the Web Site starts from filling out the Purchase Order, by clicking on the button of the web page “I Accept” button (the “Effective Date”), continuing, then, with the procedure to submit the on line order to the Supplier, following the relevant instructions.
At the end of the procedure, the Client shall be addressed to the payment web page, which contains the procedures in order to insert the Client’s data and select the way of payment.
The Contract shall be considered as executed when the Supplier receives the on-line purchase order, after verifying that the data inserted concerning the purchase order are correct and after checking to good results of the payment.
The Supplier files the order in its data base for the period which is necessary to process an order and in any case pursuant to applicable law.
The Supplier reserves the right to not process the purchase orders which give not sufficient guarantees of solvency or if such guarantees are incomplete or incorrect. In such case the Supplier shall inform, using the contact details provided by the Client, that the orders shall not be processed and the relevant reasons.
In case of execution of the Contract, the Supplier, shall forward by e-mail, to the e-mail address provided by the Client, the order receipt, containing this Contract, or the link to which to refer.
The Client represents and warrants: (i) to have full legal authority to bind his employer, or the applicable entity, to these terms and conditions; (ii) to have read and understand this Agreement;
3. Provision of the Service
3.1 Services Use
Upon the activation of the Service, the Client is able to create and place its own Application. The Application shall be at the Client’s own responsibility, and accessible by the Client exclusively by the Control Panel. It remains understood that the Supplier does not control the information and/or data and/or the contents inserted in the infrastructure by the Client or by other persons appointed and/or which collaborate with the Client. In any case, the Supplier is and will remain unrelated in respect to the activities autonomously carried out by the Client by internet remote access to the Application by using his own credential (login and password), through the use of the software owned by the Supplier and licensed to the Client. In any case when the Client accesses to the service he shall be considered as the sole controller, pursuant to Italian Legislative Decree n. 196/03, of the processing of eventual data introduced and/or processed within the infrastructure.
The Client acknowledges: i) that the data inserted by the Client are stored and kept in the servers pertaining to the Cloud Provider appointed by the Supplier. At this respect the Supplier shall not be in any manner liable with reference to the storage activity carried out by the Storage Companies, ii) to be allowed to use the Service solely for their internal use and not for resale. The Client ensures that will not sublicense or transfer these rights, iii) to warrant that the Service will be used solely as integrated into that cloud service provided by the Supplier , iv) a cloud environment will be set up by the Supplier, as described in the Purchase Order, v) some initial data about the Client must be provided to the Supplier, in order to correctly set up the cloud environment., vi) to have to inform the Supplier at least 30 days in advance before the natural expiration of the Contract, in case he doesn’t want to extend for another period, as indicated in the Purchase Order, the Service.
The Client acknowledges that the use of the Service for illicit, abusive or irresponsible reasons is banned, including but not limited to any non-authorized access or use of data, system or network, including any threatened procedure aimed to investigate, or verify or test the vulnerability of the system or of a network or to break the security measures or authentication measure without the express authorization of the owner of the system or of the network, to carry out any activity which may interfere with the use of the Service by any user of the same, including, but not limited to attacks through hacker software, cracks, key generators, serials, informatics attacks of whatever nature including DOS attacks, virus or other damaging components or attempts to overcharge a transmission system, to use non-authorized application and/or script. It remains understood that in case the Supplier finds out that a application and/or a script, even not included in the above mentioned list, is causing a failure of the server, the Supplier reserves the right to intervene in the most useful way in order to cease the failure. The Client undertakes to maintain all the Password/s as confidential and therefore he is responsible for keeping the same, waiving hereby to bring any claim against the Supplier in case of loss or theft of the access credential
The Client shall not use the Service in any manner which may interfere with the usual functionality of the service of the Supplier, or of third parties which may collaborate with the Supplier, including but not limited to Cloud Provider. In such events, the Supplier may request to restore the usual level of such non conforming use results to be in conflict, at its own discretion, with the use by the other users. The Client undertakes to not use defective or non-homologated devices pursuant to European standards, or devices which may present some failures which may prejudice the integrity of the network and/or disturb the Service and/or create risks for the physical safety of individuals. The Supplier shall not grants any warranty related to the compatibility of the devices and the programs (hardware and software) used by the Clients with the Service, being provided that all the relevant verification shall be at the Client’s responsibility.
The Supplier shall reserves the right to verify and monitor at any time the application of the provisions above, even by requesting information by sample. The Client shall not be entitled to attempt to investigate, verify, pierce or test the vulnerability of the Supplier network system, or of the network systems of third parties acting on its behalf, or to infringe the Supplier’ safety or the relevant procedures of authentications, both with passive and invasive procedures, without the express written consent of the Supplier, or, similarly, to carry out such activities through the Service provided by the Supplier against third parties’ network and/or information without their express consent.
3.2 Client data
The Client undertakes to communicate to the Supplier his own personal data necessary for the complete and correct performance of the Agreement; the Client hereby ensures, at its own responsibility, that the personal data are correct, updated and true and that they permit to identify his true identity. The Client hereby undertakes to promptly communicate to the Supplier any modification of the data provided, within 15 (fifteen) days from the occurrence of such modification, and to provide at any time, upon previous request by the Supplier, to give appropriate evidence of his identity, domicile or residence and, if necessary, of its capacity of legal representative of the requesting company or the company holder of the Service. Upon receipt of such communication, the Supplier shall be entitled to request to the Client additional documentation able to demonstrate the communicated modifications. In case the Client fails to provide to the Supplier the above communication or the requested documentation, or in case he has provided to the Supplier data which results or in respect of which the Supplier shall have, at its own discretion, a reason to consider them false, non-updated or incomplete, the Supplier reserves the right to: a) refuse the request forwarded by the Client connected to the operations do be performed with reference to the Service, b) suspend the Service with immediate effects, without giving previous notice and for an undetermined period; c) cancel and/or suspend without giving previous notice eventual operation of modification of the data associated with the Service, d) to terminate the Agreement.
The Client undertakes that the Supplier may include the Client’s name or its brand features in a list of the Supplier customers, online or in promotional materials. The Supplier is authorized to verbally reference the Client as user of the Service.
This Agreement shall have a duration chosen by the Client and indicated in the Purchase Order. The duration starts from the Effective Date. Upon the expiration of the contractual period, the Agreement shall be intended as renewed by tacit agreement, having the same duration, if not terminated by communication with a 1 (one) month previous notice by registered letter sent to the Supplier.
3.4 Interruption of the Service
Save the application of article 7, the Supplier, at its own discretion and provided that the exercise of this right shall not be considered as a breach of this Agreement, reserves the right to interrupt the Service, without giving any previous notice if: - the Client is in breach of even only one provision set forth in this Agreement; - the Client fails to answer, in whole or in part, to the Supplier’ requests and in case of occurrence of any circumstance or behavior which may reasonably ground the concern that the Client might be in breach of the Agreement or liable of one or more breach of the provisions set forth therein; - there is the reasonable concern that the Service is use by third non-authorized parties, - in case of force majeure or other circumstances which, at the Supplier sole discretion, request an emergency intervention or connected to security problems or risks for the entire network and/or for persons or things; in such cases the Service shall be restored when the Supplier, at its own discretion, shall consider that the reasons of the interruption have been effectively removed or eliminated; - the Client is involved, for whatever reason or capacity, in a judicial or extrajudicial controversy of civil, criminal or administrative nature concerning the acts or behaviors carried out through the use of the Service and/or of the Application; - the Client doesn’t respect the payment terms, as indicated in the Purchase Order- the interruption upon the Judicial Authority request.
In any case of interruption of the Service ascribable to the Client, the Supplier shall be free to take any action in order to claim the compensation of damages. During the period of interruption of the Service, the Client shall not be entitled to access to the data and/or information and/or the contents inserted by him and/or processes in the Application.
The Client acknowledges and accepts that the Service provided in this Agreement is subject to a developing technology, for this reason the Supplier reserves the right to improve the technical and economical characteristics of the Service, of the instruments connected to the same and to modify the conditions of the Agreement at any time, also after the signature.
The Supplier reserves the right to make unilateral modifications of economic and technical conditions of the Service, by giving communication to the Client at the addresses above indicated. Should the Client not refuse the proposal within the term of 30 (thirty) days from receipt of the communication, the modification above shall be considered as definitive.
Should the Client refuse the modification of the price, the Supplier shall be entitled to terminate the Agreement pursuant to article 1456 Italian Civil Code, provided that the Service shall be supplied for the current year at the time of the communication. The above mentioned modifications shall be effective after 30 (thirty) days from the date of the communication. Within the same term, the Client shall be entitled to terminate the Agreement by giving written communication. In case of non-exercise by the Client of the right to terminate the Agreement, in the terms and modalities provided above, the modifications shall be considered as definitively known and accepted. Save the provisions above, the Supplier shall be entitled to modify the technical characteristics, the systems, resources as consequence of the usual technology evolution of the hardware and software components, ensuring to the Client the same functionalities.
Save the provisions above, the Supplier shall be entitled to modify the technical characteristics, the systems, resources as consequence of the usual technology evolution of the hardware and software components, ensuring to the Client the same functionalities to this Agreement, due to the reasons above provided or in compliance to the laws; also in such case the Client shall be entitled to exercise the rights above provided.
The Client shall be entitled to change the version of Service indicated in the Purchase Order. The modification shall be requested using the specific feature provided in the Control Panel. This modification shall be processed by the Supplier after the due payment.
5. Payment Terms
Against the supply of the Service, the Client undertakes to pay to the Supplier the price agreed, at the extent and according to what provided in the Purchase Order. In particular, the payment of the Service shall be made by the Client immediately on the Effective date, through the payment web page.
If the Agreement will be renewed, the payment shall be made by the Client at least 15 (fifteen) days before the date of effective renewal.
After the payment, the Supplier will issue an electronic bill to the Client for all charges accrued.
The Supplier will inform the Client if the purchased cloud resources, e.g. data transfer, file storage, DB storage, are reaching their limit of usage stated in the Purchase Order. In case the consumption of the cloud resources will overpass their limit of usage, the corresponding fees will be invoiced to the Client as stated in the Purchase Order for immediate payment. If the payment is not received within 15 (fifteen) days from the invoice, the Supplier is entitled to suspend the Service.
6. Obligations and rights of the Client
The Client is entitled to use the Service identified in the Purchase Order, in accordance to the Technical Specifications, and he hereby acknowledges that he has the exclusive right to be compensated in case of breach by the Supplier of the provisions therein contained, being expressly excluded any other indemnification and or compensation of any damage, direct and indirect of whatever nature or type. The Client hereby acknowledges and accepts that he shall not be entitled, in any case, to claim to the Supplier any indemnification or compensation of any damage, direct or indirect, when the circumstances provided in the Technical Specifications, which exclude the application of such indemnification or compensation, shall occur.
The Client declares to have all technical knowledge necessary to ensure the correct use, management of the Application and in any case acknowledges that the processing of the data and/or information and/or contents carried out by the him through the above mentioned infrastructure and the consequent diffusion of the data, information and contents on the web, through the infrastructure, are executed exclusively at its own risk and responsibility.
The Client hereby declares that he is the sole and exclusive administrator of the Service and, in this capacity, to be the sole responsible (i) of managing the data and/or information and/or contents processed by him in the Application, of their security and saving and of performing any other activity useful or necessary in order to ensure their integrity, also undertaking, for that purpose, to apply, at its own costs, all adequate security measures; (ii) of the contents of the information, sounds, texts, images, and the formal elements and data accessible and/or made available in the virtual infrastructure and, in any case, transmitted or put online by the Client; (iii) of the failures of the Service as a consequence of a non-compliant use; (iv) of loss or diffusion of the access credential; (v) of managing the accesses to its Control Panel (any connection, modification of the Service or order made by the Client’s Control Panel it is assumed to be made by the Client);
The Client undertakes to promptly inform the Supplier of any non-authorized use of its own account or of any other violation of the security. The Client declares that all the software license independently inserted and used in the Application at its own costs, are up to date.
The Client is the sole and exclusive responsible of any other operation carried out in its own interest or in favor of third parties or directly carried out by third parties, concerning the use or management of the different Application created and placed through the Service. For that purpose, with reference to such operations the Client undertakes to: a) respect or to ensure that third parties shall respect the applicable laws and regulations from time to time in force, including data protection regulations (Italian Legislative Decree 196/2003); b) to keep the Supplier harmless and indemnified against any requests or claims for compensation of damages, direct or indirect, of whatsoever nature, irrespective of the claiming party, including but not limited to damages caused by the infringement of copyrights and patents owned by third parties.
The Client hereby undertakes to keep the Supplier harmless and indemnified against any requests or claims by third parties for damages caused by the use of the Service. All costs, compensations for damages, including legal costs originated from the actions above, are on Client’s charge. The Client undertakes to inform the Supplier of any action brought against him. In case of failure by the Client to forward the above information, the Client shall compensate all damages suffered and to be suffered by the Supplier.
The Client hereby undertakes he will not i) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of the Application ii) use the Application for High Risk Activities, iii) sublicense, or distribute any or all of the Application separated from the cloud environment provided by the Supplier, iv) resell the Application, unless granted by a separate agreement.
7. Term and Termination
The Client shall be entitled to terminate this Agreement at any time, by written communication by registered letter with acknowledge of receipt addressed to Sinesy, Via Comunale di Camino, 22/D, 31046 Oderzo (TV).
In the event the Client decides to terminate the Agreement, he shall not receive, in any case, any payment back. Such communication may be send by telegram, telex or fax, upon condition that it shall be confirmed by registered letter within the following 48 hours. The termination shall be effective within 30 (thirty) days after the date of receipt by the Supplier of the above communication; upon the termination of the Agreement, the Supplier shall cease the supply of the Service.
The Supplier reserves the right to terminate the Agreement at any time and without reason, giving to the Client written previous notice of at least 15 (fifteen) days, except the events of force majeure in which the Supplier shall be entitled to terminate the agreement without previous notice. Upon the expiration of this term, the Agreement shall be intended as terminated and the Supplier shall be entitled to cease at any time the Service without further communication. The Supplier shall reimburse the annual rate, at the extent in which the Client has not used the Service.
In any case, any other responsibility at the Supplier’ charge connected to the exercise of its right to terminate the Agreement and/or for the non-use by the Client of the Service, and any consequent right of the Client to claim any other reimbursement or indemnification or compensation of whatever type or nature, is expressly excluded.
The Client acknowledges, upon the termination of the Agreement it shall be not possible to recover data, information and/or contents inserted and/or processed by the Client in the Application and he hereby undertakes to promptly make a copy of the data and/or information and/or the contents, before the definitive termination of the Agreement. In any case of termination of the Agreement for whatever reason, the Client hereby holds the Supplier indemnified and harmless against any loss or damage in whole or in part of the data and/or information and/or the contents inserted and/or processed by the Client in the Application.
Without prejudice of the other provisions set forth in this Agreement, the Agreement shall be considered as terminated with immediate effects, should the Client: - breaches the obligations provided in articles 3, 5, and 6 of this Contract, as well as the provisions set forth in documents therein referred; - or, carries out, by using the Service, an illegal activity of whatever nature; - is in the list of protested bills, is declared insolvent, or is subject to a bankruptcy procedure.
Furthermore, in case of unfulfillment of the obligations set forth in this Agreement, the Supplier reserves the right to send to the Client, at any time, pursuant to article 1454 Italian Civil Code, a warning letter requesting the performance of the unfulfilled obligation within 15 (fifteen) days from receipt of the registered letter with acknowledge of receipt. Save what above provided the Agreement shall automatically terminate should the Client fail to pay outstanding due amounts within 15 days from the corresponding invoice.
Upon the termination of this Agreement as provided in this article, the Service shall be ceased and the Supplier shall be entitled to charge to the Client any possible further cost borne by the Supplier, without prejudice of its right to claim for compensation of possible damages suffered.
8. Limitation of Liability
The Supplier ensures to the Client the supply and the use of the Service, in accordance to the Technical Specifications. The Supplier’ obligations and liabilities towards the Client are defined by the Agreement. In any case of breach by the Supplier to the provisions therein contained, the Supplier shall be liable within the provisions set forth in the Technical Specifications any other indemnity or compensation being excluded in favor of the Client for any damages direct or indirect of whatever nature. The Client acknowledges and accepts that in any event in which the Technical Specifications shall not apply, the Supplier shall be liable exclusively within the amounts paid by the Client in the last period agreed for the supply of the Service. The Supplier reserves the right to suspend the supply of the Service in order to carry out technical interventions to improve its efficiency, by giving previous notice, whether possible.
The Supplier shall not execute a specific backup of the data and/or information and/or contents processed by the Client in the Application. Only the Cloud Provider, for its own protective reasons, and at its own discretion, without any connection with the Supplier, may carry out a periodic backup of the contents kept in the storage in order to eventually restart the Service; it is provided that such circumstance does not exclude the Client’s obligation to carry out the complete backup of the data and/or the information and/or the contents inserted by him and/or processed in the Application and to adopt all necessary security measures in order to safeguard the same. The Supplier shall not be considered responsible for the use of the Application with respect to critical situations which may cause a damage of whatever nature to third parties. The Client, in case of temporary or definitive loss, in whole or in part, of the data stored by the Cloud Provider, hereby waives the right to bring any action of whatever nature towards the Supplier, and hereby declares to exercise its rights exclusively against the Cloud Provider.
9. Copyright and license
The Client shall use the Service in compliance with Sinesy’s intellectual and/or industrial property rights. The Software licensed on a non-exclusive basis, as well as any other copyright or any other intellectual property right exclusively own to the Supplier and/or to the Supplier’ third contractual parties, therefore the Client shall not acquire any right or title at this respect and he shall use the same only during the terms of the Agreement. In no case the Client may request any source file of any software owned by the Supplier.
The Client is prevented from making non-authorized copy of the software and/or of the documentation. The Client remains responsible for any infringement caused by the breach of this obligations. The Client is prevented from use the software for other purpose than provided in this Agreement. The rights arising from this Agreement shall not be assigned to third parties, without previous agreement between Parties.
The technical assistance is exclusively rendered according to the terms and conditions provided in the annex Technical Assistance. The Client shall promptly notify to the Supplier possible faults or failures of the Service. The Supplier shall make any reasonable effort in order to take on the responsibility of the problems detected by the Client.
All the request of intervention and, in any case, of interventions which may requests the communication to the Supplier of the credential for the access to the Service (login and password) by the Client, shall be transmitted to the Supplier by a ticket from the Control Panel. In order to permit the correct and prompt execution of the intervention, the Client shall provide all the specifications and the information requested by the Supplier.
The Client acknowledges and accepts that said intervention are to be carried out as specified in the annex Technical Assistance.
By sending the intervention request as provided above, the Client: a) declares to have acknowledge that such intervention may create an high risk for the Service’s efficiency or for the integrity of the data and/or information and/or contents inserted and/or processed in the Application; and b) hereby accepts to take on the responsibility of the connected risks; c) hereby undertakes to make by its own, before the intervention, a complete backup copy of the data and/or information and/or the contents inserted by the Client and/or processed in the Application. It remains understood that the Supplier shall carry out all intervention connected to the Client’s data back up, only upon previous request and appointment by the Client. The Client declares that he has been informed by the Supplier, or by any other party on its behalf, upon the execution of this Agreement, about the importance of the backup activity and about the negative consequences that could occur in case it is not daily performed. The costs connected to said activity are specified in the Control Panel. For this reason, the Client undertakes to waive any right to any request or claim towards the Supplier connected to any damages which may be caused by the lack of performance of a back up activity, in case the Client has not expressly appointed the Supplier.
Save the above provided, the Client hereby holds the Supplier and its employees and collaborators, and any possible third company appointed by the Supplier for the intervention and its relevant employees and collaborator, indemnified and harmless against any damages, direct or indirect, of whatever nature suffered or to be suffered in the future arising from or caused by the intervention above, including but not limited to the loss of or damages caused in whole or in part to the data and/or information and/or contents inserted by the Client and/or processed in the Application, or for the interruption of the Service in whole or in part.
11. Final provisions
This Agreement cancels and substitutes any other previous agreement, even orally, executed between the Supplier and the Client, connected to the Service for whatever reason and shall be considered as the last and integral expression of the understandings between parties on the subject matter of this Agreement.
No modification, note or clause added to this Agreement shall be valid and shall have effect between Parties if not expressly and specifically approved in written by parties. In case of particular agreements with the Client, they shall be in written and shall constitute an addendum to this Agreement.
In no case the breach and/or a behavior of the Client non conforming to this Agreement shall be considered as a waiver to this Agreement or as tacit acceptation of the same, even not claimed by the Supplier. The failure by the Supplier to exercise or to claim a right or clause of this Agreement, shall not be considered as waiver to such right or clause.
Except for the event in which it is specifically provided by the Agreement, all communications to the Client shall be made by electronic mail, certified or not, at the address indicated by the Client in the order and, as a consequence, the same communications shall be considered as acknowledged by the Client. Possible modifications to the address and contact details of the Client including the e-mail address indicated at the order and not communicated by the Supplier with the modalities provided by the Agreement shall not be enforceable toward the Supplier.
The invalidity, in whole or in part, of one or more clauses of the Agreement, shall not prejudice the validity of the others, which remain valid. For what not expressly provided in the Agreement, Parties expressly make reference, to the extent it is possible, to the applicable laws.
This clause, and the other clauses in this Conditions as provided below as well as the provisions set forth in the other documentation referred to in such clauses shall continue to be valid between Parties even after its termination for whatever reason or ascribable to the parties whether the Supplier or the Client.
12. Applicable law to the Contract and Jurisdiction
This Contract is governed by Italian law, included the provisions of D.lgs. 9 of April 2003, no. 70
The Contract between the Client and the Supplier is to be intended as executed in Italy.
Any dispute which may arise from the execution of the purchase distance Contract shall be settled exclusively by the competent Court of Treviso.
The Client declares to have acknowledged and specifically approved, pursuant to articles 1341 and 1342 of Italian Civil Code, the following clauses: article 3. Provision of the Service, 4. Modifications, 8. Limitation of Liability, 12. Language, applicable law to the Contract and Jurisdiction.