General terms and conditions for the Supply of ICT Services
- Scope of Application of the General Terms and Conditions
These General Terms and Conditions will govern all present and future relations between the company Bagnoli NET SRL, at Via Roma Castelnovo ne’ Monti (Reggio Emilia) VAT Registration Number 02487260354 (hereinafter to be called the “Supplier”) and the Client, as identified in the annexed tender containing the commercial offer, forming an integral and essential part of the agreement between the Parties.
The Client’s acceptance of these Terms and Conditions will mean that they will apply to each supply of products and/or services without the need for their specific separate approval.
Any amendment yo these General Terms and Conditions must be in writing.
- Validity of the Recitals and Annexes
The recitals and annexes will be contractually binding.
- Subject Matter of the Performance
The Supplier will carry out what is described in the tender annexed, limited to the hardware and software platform described therein.
- The Client’s Obligations
4.1. Setting up of premises, equipment and infrastructure
The Client will set up, at its own expense and under its own responsibility, everything necessary to use the products/services listed in the tender annexed (merely by way of example: the premises, internet access, operational continuity and security systems, software, operational systems, insurance policies).
On the expiry of the Agreement, the Client will return everything that it may have received from the Supplier in the context of the latter’s performance of obligations, except when ownership of the same, including of intellectual property, has been definitively transferred.
The Client will bear any restoration/refurbishing costs (by way of example: restructuring of real estate, disposal of waste including special waste, reduction through restoration, return of chattels) deriving from the termination of this Agreement for any reason whatsoever.
4.2. Compliance with legal obligations
The Client, under its own responsibility and at its own expense, is the sole and unique responsible to obtain everything necessary to the compliance with legal obligations that may be associated with the use of the product/service provided by the Supplier, including, but not limited to, the applications for authorisations, licences or permits where required.
In the case of the installation of software provided by the Client, the latter declares from the date hereof that it will have been acquired in compliance with the Italian law and, in particular, with the Italian copyright Act.
4.3. Administrative obligations
If not agreed otherwise in writing, the Client must care, under its own direction and at its own expense, the compliance of all legal requirements related to the product/service governed by these Terms and Conditions (purely by way of example: the payment for the renewal of domain names, the maintenance of a properly functioning e-mail address, the sending of documentation, the communication of data to telephone operators or internet providers for the activation/de-activation of access services and all else similar, or assimilated, to the above).
4.4. Security measures
The Client enforces the security measures necessary to protect data, information or programmes with particular, but not exclusive, reference to the use of anti-virus programmes, less vulnerable software or operating systems, systems for the back-up of data, information and programmes as well as the correct management of the IT and online systems to which the Supplier gives it access under this Agreement.
Before carrying out maintenance, installation, updating and hardware and software configuration activities, the Client will confirm that the interventions requested to the Supplier will not cause negative consequences for the Client itself (purely by way of example: malfunctioning, total or partial blocks of products/services, loss of data, information and programmes or interruption of the business).
The Client will be exclusively responsible for adopting all measures (for example: back-up copies of data, information and programmes) necessary to avoid loss of data and/or interruptions in the functioning of software and hardware before the initiation of the services requested of the Supplier.
As a consequence of the above, the Client will be exclusively responsible of the assessment and checking the effectiveness and efficiency of the security measures adopted – in particular with regard to the recovery of data, information and programmes, releasing the Supplier from any obligation in that matter.
4.5. Lawfulness, timely nature and completeness of the materials and information provided to the Supplier
The Client hereby declares that the materials and information provided to the Supplier (purely by way of example: computer code, texts, images, sounds, animations, video clips, music, lists of e-mail names and addresses) are of lawful origin and that the Client has full rights to use them.
The Client will be the sole party with responsibility for the quality of the materials and information delivered to the Supplier.
The Client will provide the Supplier with all technical specifications and materials relating to the product to be created or the service to be used in a single delivery and is aware that the accuracy and completeness of the information and materials delivered to the Supplier will be an essential condition for compliance with the time limit for the delivery of the product/service forming the subject matter of the Agreement.
4.6. Contesting faults and non-conformities
The Client will receive the drafts or development versions of the product/service forming the subject matter of the Agreement on a periodical basis and must report any faults or non-conformities within 30 days from the receipt of such versions. Once such time limit has expired, the Supplier may pass on to the subsequent stage of the timetable of works.
Once the Supplier has performed the appointment assigned to it, the Client will be required to contest any faults or defects in the product/service forming the subject matter of this Agreement within ten working days from the moment when the fault or defect becomes manifest, providing a detailed indication of the problems encountered in such a way as to enable anyone to reproduce them.
The Client will be required to make such complaint solely and exclusively by means of registered letter with notice of receipt or telegram.
Once the period of ten days from the delivery of the product or the making available of the service has passed without complaints arising, the Client will cease to have the right to contest evident faults and non-conformities of the product/service forming the subject matter of this Agreement.
Solely with reference to evident faults and on pain of losing its related rights, the Client will be required to make the complaint within ten days from the date of the manifestation of the fault (with the unambiguous documentation of the same).
4.7. Payment of fees
The Client will pay what is due to the Supplier within the time limits and in the manner indicated in Article 8 below of this Agreement.
The Client will also pay any additional costs (including if arising subsequently) attributable to its delivery of erroneous, insufficient, incomplete, unusable (including for reasons of law) materials and/or information to the Supplier.
4.8. Intellectual and industrial Property
Save as agreed otherwise in writing, the Client will acquire the non-exclusive right to use the product/service forming the subject matter of this Agreement for the period indicated in the related commercial tender and shall not have any right whatsoever to receive the source code for the contractual product/service.
In particular, the Client has been informed that it will not be able to claim any patent and/or copyrights against software governed by use conditions such as GPL or Open Source Initiative.
The Client recognises from the date hereof that the Supplier will retain moral rights of copyright over products developed on behalf of the Client.
As a consequence of the above, in all uses of the product/service governed by these General Terms and Conditions, the Client must make the Supplier’s company name and at least the website address of the latter visible.
The Client hereby recognises and accepts that the Supplier retains all rights over the customisation of code belonging to third parties, technical solutions, interactions between software and users and generally everything created and/or used in the fulfillment of its obligations and, as a result, it will be free to use the above mentioned Intellectual Property without any limitation and compensation in favour of the Client.
The Client hereby authorises the Supplier to use the Client’s names and brands as references or for advertising purposes.
- The Supplier’s Obligations
5.1. The setting up of Internet sites and software development
On the basis of the information and materials provided by the Client, the Supplier will indicate a date for the probable delivery of the product or service availability which may be postponed for technical reasons arising subsequently.
Save in the case of express written agreement, the Supplier will not carry out adaptation and/or manipulation of texts, images, animations, videos, sounds or music to improving the quality or usability of the same.
The Supplier recognises and hereby declares that it will make no claim of any right of any kind over the Client’s intellectual and/or industrial property which is made available to it during the performance of the Agreement for any reason or on any basis.
5.2. Hosting services
On request by the Client and if included in the commercial tender, the Supplier may, at its unchallengeable discretion, make the contractual products and/or services usable over the internet through the related infrastructure (by way of example: servers, operating systems, access or security and operational continuity systems) belonging to itself or third parties.
The Supplier will manage its own infrastructure in compliance with current law with particular reference to that concerning the processing of personal data.
In the case of the use of infrastructure belonging to third parties (by way of example: servers, operating systems, access or security or operational continuity systems), the Supplier will inform the Client of the service conditions applied by any such third party and the contact details for the reference technical and administrative staff of the latter for the operational management of the service and hereby declines any obligation to interact with such reference staff.
5.3. Domain names
The Supplier will only and exclusively perform the necessary technical operations coming under its competence for making the domain names registered by the Client available (by way of example: the configuration of the DNS in relation to the second level domain, the activation of the “www” third level domain) .
5.4. Hardware and/or software installation and maintenance
The Supplier will carry out what is reasonable to install and/or maintain the hardware and software requested by the Client in the commercial tender annexed to this Agreement according to the technical procedures commonly used in the IT sector.
The Supplier, when requested, will install and configure software (including, by way of example: operating systems, e-mail servers, scripts etc.) covered by so-called free licenses (e.g. GPL, Open Source Initiative approved license etc.) under their”as is” clause, to be valid too for the enforcement of the provisions laid down by the second paragraph of Article 4.4.
In the specific case of maintenance, the Supplier reserves its unchallengeable right not to carry out the activities requested by the Client if technical interventions have been effected on the software and/or hardware being the subject matter of the maintenance (by way of example: the installation of hardware components, the installation of software from scratch, the configuration of already installed software, the replacement of components or the installation of an operating system) by third parties not authorised by the Supplier.
- Limits on Warranties
The Supplier guarantees that the product/service governed by these General Terms and Conditions has been supplied in accordance with the diligence required in the sector, without infringing third party rights (including of intellectual and/or industrial property) and in compliance with the Italian law, with particular reference to the principles laid down by the law on personal data processing.
The Supplier also guarantees that the software/internet site created and/or customised pursuant to the appointment by the client will conform to the technical specifications requested by the Client, without non-documented functionality permitting, inter alia, the blocking of software or giving access to the software or computer allowing it to function without the Client’s knowledge.
All other warranties, within the minimum limits laid down by the law, are provided hereunder subject to the terminating condition that the product/service forming the subject matter of the Agreement has only been worked on by the Supplier.
As a consequence of the above, the Supplier, at its unchallengeable discretion, may refuse to honour the warranty and to carry out maintenance activities if the Client has carried out maintenance activities or repairs itself or had the same effected by third parties.
Save as agreed otherwise in writing between the Supplier and the Client, a warranty over third party hardware or software will be honoured directly by the producer of the same.
- Limits on Liability
The Supplier will not be liable for loss and damage suffered by the Client (or by third parties interacting on any basis with the Client) arising from the following:
– delays in the delivery of the product or performance of the service occurring in breach of paragraph 4.5 of this Agreement;
– unsatisfactory quality of the product or service deriving from the type and quality of the materials and the information delivered to the Supplier by the Client pursuant to paragraph 4.5 of this Agreement;
– negative consequences for the Client (purely by way of example: malfunctioning, total or partial blockages of products/services, the loss of data, information or programmes or the interruption of business) deriving from:
i – the hardware or software modification of hardware or software installed by the Supplier and carried out by parties other than the Supplier without the latter’s written authorisation to such effect;
ii – hardware and/or software modifications effected by the Supplier following maintenance interventions on hardware or software installed by third parties requested by the Client;
iii – the loss of the domain name in circumstances when its administrative management comes under the Client’s competence;
iv – problems of any kind attributable to third parties responsible for the infrastructure that may be used by the Supplier in the hosting services referred to under Article 5.2 of this Agreement;
v – the failure by the Client to adopt adequate technical measures designed to avoid the loss, including accidental loss, of data, information and programmes in addition to breaks in the functioning of IT and online systems;
vi – the suspension of the services governed by this Agreement effected by the Supplier pursuant to Article 8 below in the case of the non-payment, including partial payment, of the monies due by the Client.
The services offered by Bagnoli NET S.r.l. will be under the exclusive control of the Client. On request by the latter and without prejudice to the existing limits on liability and warranties, Bagnoli NET S.r.l. will be able to gain access with administrative privileges to the areas belonging to the Client to carry out the activities required by the Agreement or requested by written communication from the Client.
A number of functions of the services offered by Bagnoli NET S.r.l. may potentially endanger the right to confidentiality and be in breach of the provisions against workplace surveillance. The Client is thus informed, and accepts the same, that it should use these functions within the limits laid down by the relevant law in force.
If Bagnoli NET S.r.l. receives a documented report of abuse of the functions in question, it reserves the right to suspend them or interrupt the functioning of the same.
- Time Limits and Manner of Payment, Suspension of the Service in the Event of Delay in Payment
The Client will pay the amount due in the times and manners set out in the commercial tender annexed to these General Contract Conditions.
In the case of non-payment or part payment of what is due, the Supplier will suspend all services purchased by the Client without further notice.
- Termination as of Right and Penalties
The Agreement will terminate as of right in the event of the breach of even only one of the provisions set out in Articles 4.1, 4.3, 4.5, 4.7 and 4.8 above and/or in the case of the Client’s failure to pay what is due pursuant to Article 8 above.
On giving notice of the termination as of right, the Supplier will be entitled to terminate the supply of the product/service forming the subject matter of this Agreement with immediate effect.
The outstanding debt becomes payable in full and with immediate effect, and the Client loses, immediately all copyright and rights connected with the product/service forming the subject matter of the Agreement together with any other right granted to it by the Supplier in that regard.
Without prejudice to any additional loss or damage the Supplier may have suffered by reason of the failure to pay, the Client will in any case be required to pay a penalty amounting to the full value of the work commissioned to the Supplier.
Any communication relating to a dispute between the parties must be effected exclusively by means of registered letter with notice of receipt sent to the Registered Office of the Party against which the dispute is directed, being the address of the office indicated in the Registers of the Chamber of Commerce at the time of sending.
- Applicable Law and Competent Court for Disputes
This Agreement will be exclusively governed by Italian law.
The Court of Reggio Emilia will have exclusive competence for the adjudication of all disputes with the express exclusion of any other applicable court.
- Information on the Processing of Personal Data
Should the agreements between the Client and the Supplier fall within the Data Protection Act, both parties are aware that the processing of the personal data of the Parties set out in these general terms and conditions will be performed exclusively to comply with the Agreement itself and with legislative obligations. As a consequence, a prior consent is not required.
The data will be stored for the time required by law or the Agreement and will eventually be destroyed. They will not be assigned, communicated or disseminated to third parties save for the purposes described in the previous paragraph of this Article.
The Data Controllers of the processing will be the Parties in the persons of their respective authorised representatives for the time being.
The Parties will be entitled to exercise the rights set out in Article 7 of Legislative Decree 196/03 as subsequently amended and supplemented.
Express acceptance pursuant to Articles 1341 and 1342 of the Italian Civil Code
Pursuant to Articles 1341 and 1342 of the Italian Civil Code, the undersigned, in the capacity of XXX[gn1] , hereby declares that he/she has specifically read, understood, accepted and signed all the articles, with the related paragraphs and sub-paragraphs, listed below: 1 – Scope of Application of the General Contract Conditions, 2 – Validity of the Recitals and Annexes, 3 – Subject Matter of the Performance, 4 – The Client’s Obligations, 5 – The Supplier’s Obligations, 6 – Limits on Warranties, 7 – Limits on Liability, 8 – Time Limits and Manner of Payment, Suspension of the Service in the Event of Delay in Payment, 9 – Termination as of Right and Penalties, Applicable Law and Competent Court for Disputes.
- As an integration of the general terms and conditions (that are enforceable if not counterdicted by what follows), the Customer is informed and agrees that it is its own contractual duty:
a – to guarantee that the email systems used to send the logs to the Supplier, and in particular, the fair reputation rating of both the domain and the IP associated to the concerned mail server,
b – to comply – before starting to send the logfiles – with all relevant statutes and legislation concerning the data protection and the workplace surveillance,
c – guarantee the confidentiality, the integrity and readability of the files to be sent to the Supplier,
d – guarantee the correct configuration of the services (especially those related to the data backup), and the integrity and completeness of the backup,
e – file in writing any complain related to the service within three working days from the accident, providing forensic-obtained evidence of its claim,
f – set the data retention period of what has been sent to the Supplier
- Furthermore, the Customer is informed and agrees that the Supplier shall:
a – not be liable for the failure to receive the logfiles by fault of antispam, antivirus and/or similar tools that might block the sending, transporting and delivering of the files,
b – not keep any further copy of the data sent by the Customer, once the latter has deleted its files.