Article 1. General principles.
- This document contains the General Terms and Conditions of Sale (hereinafter, in short, referred to as “GTCs”) to be applied to all agreements stipulated by Alfa Sistemi S.r.l., with registered office in Udine, in V.le Palmanova no. 464, Italy, with Tax Code and Registration number in the Udine Company Register no. 01884350305 (hereinafter, in short, referred to as “AS”). Taking into account the different types of services rendered by AS, these General Terms and Conditions contain a General Part (containing provisions applicable to all types of agreements – Articles 1 to 13) and a Special Part (containing provisions applicable to a specific type of agreement, individually specified by Sections in Articles 14 to 37). The conditions defined in the General Part of the document directly integrate with those specified in the Special Part, relating to the type of contract of interest and vice versa, so that together they constitute the GTCs applicable to the contractual relationship. These GTCs are published on the AS website at https://www.alfasistemi.net/en/general-conditions/.
- By accepting the Offer formulated by AS and by signing it – as also indicated in the Offer itself – the Customer accepts the contents of the GTCs and undertakes to observe what is provided therein in the execution of the contractual relationship established with AS.
- The GTCs prevail over similar documents drafted by the Customer, except in the case where AS specifically stated in the Offer that it shall not make use of them or where it accepted, for individual cases, any exceptions or different provisions.
- The GTCs, together with the agreements contained in the Offer, as well as agreements provided for in other referenced documents (e.g. the Oracle General Terms and Conditions as regards to the type of agreement governed by Section I – Special Part), constitute the overall regulation of the contractual relationship in place between AS and the Customer, replacing any previous agreement on the same subject between the Parties.
- All terms and/or timeframes specified in these GTCs and, more generally, in all the relevant contractual documents, refer to calendar days, unless it is otherwise specified that they refer to working days. Unless otherwise specified in the Offer, the starting date of the first term provided for in the Offers occurs when AS receives confirmation of the acceptance of the Offer by the Customer.
- The Customer declares to operate as a professional entity and not in the quality of Consumer pursuant to Legislative Decree 206/2005 which, therefore, shall not be applicable in the contractual relationship between AS and the Customer.
Article 2. Definitions.
- In this document, the terms indicated in the left hand column shall have the meaning specified in the right hand column:
|AM||Application Maintenance Service|
|Alfa Sistemi S.r.l., with registered office in Udine, Italy, in V.le Palmanova no. 464, Tax Code and Udine Company Register no. 01884350305, VAT no. 01884350305|
|Customer||Company, Italian or foreign, entering into an Agreement with AS|
|Agreement||Agreement concluded between AS and the Customer (with regard to the conclusion of the Agreement, see Offer)|
|Go Live||The moment when a Software Solution is launched and made available for use in the Customer’s System in its final version|
|AS Licenses||The right to use the specific AS software specified in the Offer|
|Oracle Licenses||The right to use the Oracle software specified in the Offer|
|Milestones||Within the scope of a service involving a series of activities necessary for achieving a final goal, each intermediate milestone to which a specific deliverable is connected|
|Offer||The document with which AS (including through its Agents or, in any case, subjects entrusted to this effect) formulates a contractual proposal aimed at the Customer; this Offer, where accepted by the Customer (and signed by the latter for acceptance, in all its parts) subject to the conditions set out in the Offer itself and in these GTCs, gives rise to the Agreement; the Agreement shall take effect when AS receives confirmation of the acceptance thereof from the Customer|
|Oracle||Oracle Italia S.r.l.|
|Software Solution||A software system developed by AS at the Customer’s specific request and according to the specifications provided by it and/or aimed at meeting the Customer’s operational needs|
|SSS||System Support Service|
|T&M||Time and Material service|
|TOMA||The document containing the Oracle license terms|
Article 3 Validity of Offers.
- The Offers shall be valid for the period of time indicated in the Offer itself. Where this period of time is not specified, the Offers shall be valid for 30 (thirty) days from the date of issue indicated on the Offer itself (regardless of the date of actual transmission to the Customer and/or receipt by it).
- Within the period of validity of the Offer, the Customer must send AS its acceptance, signing the Offer in all its parts, including the reference to these GTCs. Where the Offer is only subscribed in part, this shall not count as acceptance.
- In the event that the term of the Offer expires, without AS having received the Customer’s acceptance within the same term, the Offer shall be considered automatically revoked. The Customer’s acceptance, received by AS after the term of validity of the Offer, may still be taken into consideration by AS, which shall be free to confirm its original offer regardless of the expiry of the term of validity of the same by communicating this will to the Customer; in this case, the Agreement shall be considered stipulated only when the Customer receives notice of AS’ intention in this regard.
Article 4 Fees and expenses. Payment.
- The Customer undertakes to pay AS the fees provided for in the Offer, and to reimburse the expenses incurred by AS, as set out in the same Offer, as well as to pay any other sum due under the Agreement, under the terms and under the conditions set out in the Offer. In the absence of a specific agreement included in the Offer, payment shall be made 30 (thirty) days from the invoice date.
- Unless otherwise specified, all the amounts indicated in the Offer are net of VAT, where applicable.
- Upon expiration of the payment term specified in the Offer (or, failing that, the term indicated in paragraph 1 of this Article), the Customer shall automatically be charged default interest, pursuant to Legislative Decree 231/02, without any need for prior request and/or communication.
- Payments made by way of securities, bills of exchange, cheques, transfers or other financial means, shall not give rise to the novation of the original contractual relationships and shall be accepted by AS subject to payment in due course. Collection, discount, registration fees, etc. associated with cheques, bankers’ drafts and similar shall remain the responsibility of the Customer.
- In the event of non-timely and full payment of any sum (consideration, fees, expenses, etc.) due under the Agreement at the agreed upon deadlines, AS shall be entitled to suspend the execution of its services upon written notice, until the full payment of amounts overdue and the provision of suitable guarantees for future services.
- In no case shall the Customer be entitled to pay the amounts due to AS under the Agreement, using any sums for any other reason due by AS to the Customer.
- The Customer shall not be able to raise any exception and/or claim against AS, where it is in default with payments. Any disputes shall not confer any right on the Customer’s part to delay and/or suspend and/or in any case modify the payment methods as indicated in the Offer.
Article 5 Deliverables.
- Against full payment of the consideration by the Customer, the (“Deliverables”) documentation – including, depending on the specific type of provision, reports, paper or electronic documents, tables, object codes, etc. – drafted by AS for the Customer, shall be made available both to AS, as well as to the Customer.
- Except as provided in Article 6 below, each Party shall be entitled to use the Deliverables for their business activities, without any obligation to report said use to the other Party, it being understood that the Customer shall not be permitted, in any way, to transfer to third parties or make said Deliverables public, without the prior written consent of AS.
- The Parties agree that AS shall remain free to develop and/or use, for itself or for any third party, any type of activity and/or material (including but not limited to products or services, documentation, reports, tables or codes) similar and/or competing with respect to the Deliverables. Moreover, the Parties also agree that AS shall remain the exclusive owner, as well as the only subject free to use all the relevant methodologies, procedures, techniques, ideas and inventions, trade secrets and expertise relating to the consulting activities provided by AS, even where these have been developed by the latter on behalf of the Customer or provided thereto on the basis of the Agreement.
- Unless otherwise agreed upon, where a provision is made for the Customer’s acceptance in relation to sending a Deliverable (of any kind), such acceptance shall be considered as implicitly expressed in the event that the Customer does not provide any feedback to the contrary within 10 (ten) days from the time the said Deliverable has been sent. Where the issue of an invoice by AS is linked to the approval of the Deliverable, AS may proceed with issuing said invoice even in the case of implicit acceptance, pursuant to this provision.
Article 6 Confidentiality.
- The Customer must not use and/or disclose to third parties, for purposes unrelated to the execution of the Agreement, any industrial, commercial or business secrets, as well as any other technical information of a confidential nature, even if not expressly qualified as such, relating to the business activity carried out by AS and its corporate organisation, of which the same Customer became aware by virtue of the execution of the Agreement.
- With reference to information defined as “confidential” and provided by one of the Parties to the other in relation with this Agreement, the Party that receives said information undertakes to: (i) protect confidential information, diligently and appropriately or in accordance with applicable professional standards; (ii) use this confidential information exclusively in order to fulfil the obligations assumed under this Agreement; and (iii) reproduce or make copies of confidential information only if absolutely necessary, in order to fulfil the obligations assumed under this Agreement. The provision referred to in the previous sentence shall not apply to information: (i) in the public domain; (ii) legitimately known to the receiving Party, prior to the communication thereof; (iii) legitimately already communicated to third parties, in the absence of an obligation of confidentiality; (iv) developed independently; or (v) communicated in compliance with applicable legal obligations. Notwithstanding the foregoing, AS reserves the right to communicate the Customer’s confidential information to its subcontractors or in any case to third parties, for the purpose of execution of the Agreement. The Customer hereby provides its consent to the aforementioned right of communication.
- The Customer undertakes to keep the content of the Offer confidential in all its parts and not to disclose the content thereof, in whole or in part, to third parties.
Article 7 Warranty and complaints. Limitations. Liability.
- With the exception of the provisions specifically provided for in the Special Part of these GTCs, with reference to each type of contract, this Article regulates certain aspects common to all the aforementioned types of contracts.
- AS guarantees that each and all services provides shall be done so diligently and in accordance with applicable professional standards.
- The Customer undertakes to report to AS, no later than 8 (eight) days from their identification (for the resale/sale of licenses and for activities related to services, Sections I, II and IV of the Special Part) or no later than 30 (thirty) days from their identification (for “turnkey” activities, Section III of the Special Part), and in any case subject to compliance with the maximum terms which may be defined in the Special Part of these GTCs for each type of contract, any defect, malfunction and/or discrepancy found in the provision of services rendered by AS and/or in the Deliverables compared to the requirements (subsequently defined as a “Deformity”). In any case, where more favourable for AS, without prejudice to the provisions of the Special Part of these GTCs in relation to each type of contract, the maximum term of any guarantee borne by AS shall be equal to 12 (twelve) months from the date on which AS provided the service from which the guarantee derives (e.g. delivery, carrying out of activities, installations, etc.). After this period of 12 (twelve) months, or the shorter period provided for in the relevant clauses of the Special Part of these GTCs in relation to the specific type of contract, the Customer shall not be entitled to obtain any guarantees from AS.
- Without prejudice to cases of wilful misconduct and/or gross negligence, AS shall only have the obligation to provide the means suitable for the resolution of the Deformities, without undertaking any obligation of the result to be achieved and excluding any other type of legal or conventional remedy, including of a compensatory nature (except as provided for below and within the limits specified). The Customer, however, shall forfeit any right of claim after the period indicated in the previous paragraph or following the execution (with a positive outcome) of verification tests, where required.
- Except in the case of wilful misconduct or gross negligence, AS shall not in any way be responsible for, or shall assume no guarantee in connection with goods or services provided by the Customer to any third party, as well as products supplied or services provided by third parties, regardless of whether these relationships are connected and/or even only connectable to the services rendered by AS. With reference to said third party products or services the Customer shall have at its disposal, only the rights deriving from the guarantees offered by the third parties and may take advantage of such guarantees not in relation to AS, but only in relation to third party suppliers of products or services.
- The content of the guarantee provided for in this Article, as well as in the articles contained in the Special Part of these GTCs in relation to each type of contract, voids and replaces any other legal or conventional guarantee and represents the only guarantee granted by AS in relation to the Agreement.
- The guarantee only covers the services rendered by AS in their original configuration, including any customisations and ancillary provisions provided by AS. Moreover, the recognition of the guarantee is subject to verification of compliance of the activities and procedures provided for in the installation manuals delivered to the Customer and/or the instructions provided by AS.
- The Customer shall remain solely responsible for the installation of the software, in relation to which AS shall not carry out any activities.
- Without prejudice to cases of wilful misconduct or gross negligence, AS shall in no case be liable to provide compensation for damages of any nature, direct or indirect, by way of contractual or non-contractual liability, for an amount exceeding the total cost (except as specified below with regards to the resale of licenses) paid by the Customer in relation to the Agreement whose execution has given rise to the responsibility undertaken by AS. As relating to the resale of licenses (Section I of the Special Part), the maximum limit of AS liability shall be parameterised to the difference in value between the purchase cost of such licenses by AS and the resale cost of the same to the Customer. In any case, AS shall not be liable for compensation for damages not foreseeable at the time of the conclusion of this Agreement, as well as for consequential, indirect and incidental damages (including those related to production outages, data loss, costs for restoring production systems, etc.) or related to losses, including the loss of profits, savings or business opportunities. Likewise, AS shall in no way be held liable for any loss of customer data in cases where the customer has not made a backup of the entire archive affected by the intervention, prior to the implementation of the same by AS.
- The Customer acknowledges that AS provides its Services in the exclusive interest thereof. Therefore, the Customer shall indemnify and hold AS, its affiliates, partners, managers and staff harmless from any cost, expense, compensation for damages and any other sum due for such liability (including legal costs) that may derive as a result of third party claims in relation to the performance of the contractual services, in relation to the use by the Customer of the Deliverables provided by AS, or in any case in relation to the Agreement. The aforementioned provisions shall apply, without prejudice to cases of wilful misconduct or gross negligence, in all circumstances, regardless of the nature or the basis of any liability actions (including but not limited to contractual and non-contractual liability actions for the behaviour of AS or of the Customer or of third parties, as well as regardless of whether AS was aware or otherwise of the possibility of causing damage or loss).
- AS cannot be held responsible for delays or non-fulfilment due to force majeure or circumstances not foreseeable upon conclusion of the Agreement.
- In addition to the foregoing, the Customer shall void any guarantee in the event of: (i) incompleteness and/or erroneousness of the information sent to AS and functional to the provision of the services; (ii) failure, delayed, incomplete and/or inaccurate response to requests for information which may be sent by AS during the provision of the services; (iii) failure to promptly adopt the instructions/indications provided by AS and/or failure to obtain the approvals/authorisations necessary for the performance of the services in a timely manner; (iv) failure to make available to AS staff adequate offices, resources, materials and anything else deemed necessary for the provision of services and not expressly provided for by AS.
Article 8 Internal customer managers and customer commitments.
- With regard to the contract types governed by Sections III and IV of the Special Part of these GTCs, the Customer undertakes to:
- appoint an internal manager, who shall act in this capacity for the entire period of execution of the activities carried out by AS, covered by the Agreement, with the exception of a motivated modification of the same, to be communicated in writing to AS with a minimum notice of 10 (ten) days; said resource shall be the customer’s reference for AS for all administrative aspects and, more generally, for management aspects related to the Agreement;
- appoint an internal manager, who shall act in this capacity for the entire period of execution of the activities carried out by AS, covered by the Agreement, with the exception of a motivated modification of the same, to be communicated in writing to AS with a minimum notice of 10 (ten) days; said resource shall have adequate computer/technical knowledge and shall be the customer’s reference for AS for all technical aspects related to the Agreement.
- The Customer acknowledges that all communications received by AS from the Customer’s personnel or, in any case, from subjects bearing distinctive marks, logos or signs associated with the Customer (including, but not limited to, a company mailbox on the Customer’s domain or a telephone user ascribable to the Customer) shall be valued as statements of intent and/or, in any case, binding for the Customer, regardless of the effective powers of the person who made such statements; the Customer therefore undertakes to constantly monitor its staff, in order to avoid, as much as possible, situations of good faith reliance on the part of AS, nevertheless undertaking to indemnify and hold AS harmless regarding the consequences of these statements.
- With regard to the contract types governed by Sections III and IV of the Special Part of these GTCs, the Customer undertakes to guarantee to AS:
- the provision of all necessary access/security to the system, to the database and to any further environments in scope;
- the provision of a VPN connection and its correct management and operation, so that it is possible for AS staff to work directly from their offices remotely;
- the provision of all information necessary for the complete and exhaustive performance of any planned intervention;
- timely communication to AS, of any contingent factor that may lead to changes, time shifts or other effects on the planned intervention;
- the availability of a link to internal documentation for all the activities in scope (documentation reference folders, shared folders, etc.).
Article 9 AS’ personnel.
- During the execution of the Agreement and for a period of 12 (twelve) months from the time of the last provision of services by AS, the Customer undertakes not to make any offers of employment and/or collaboration to employees and/or collaborators of AS, nor to accept equivalent proposals from these or to behave in such a way towards employees and/or collaborators so as to be understood as a violation of civil principles as a guarantee of the fairness of the relationship between debtor and creditor and to protect against acts of unfair competition; the violation of such commitment entails the immediate termination of the Agreement where still in place, without prejudice to the Customer’s responsibility to fully fulfil all the economic obligations provided for by the Agreement and without prejudice to any request for compensation.
Article 10 Processing of personal data.
- The Customer – in relation to third-party data present in its systems and which AS may become aware of in performing its contractual services – confirms that it has obtained all the necessary authorisations from the owners of said data and, therefore, authorises AS to process the data for the purposes referred to in the Agreement.
- The Customer hereby provides consent for AS to transmit all the contractual documentation (including pre-contractual or working documentation) to Oracle, where the latter requests such information, having been informed that, in the event of a request from Oracle, AS shall be obliged to send the information in question. Where it is necessary to send said information, AS shall be free to proceed without having to notify the Customer or provide any communication in this regard. Where AS sends said information, it shall be free to remove any parts deemed unnecessary, at its sole discretion and without prejudice to the broader significance of the consent provided by the Customer.
Article 11 Acceptance of the AS Code of Ethics.
- The Customer declares to have read the AS Code of Ethics, to have examined it and to have fully understood its meaning and content, declaring to accept it in full.
- The Customer undertakes to comply with the AS Code of Ethics, declaring to share its principles and, more generally, the content thereof. The Customer undertakes to enforce the AS Code of Ethics with respect to its employees, collaborators and, more generally, all third parties employed, for any reason, in the business activities carried out by it.
Article 12 Arbitration Agreement and exclusive jurisdiction. International disputes.
- The Parties agree to decide all disputes arising from the Agreement or from these GTCs, or in any case related to it, through a board of 3 (three) arbitrators registered in the Register of Lawyers, of which each Party shall have to appoint one; moreover, the third arbitrator, who shall preside over the board, shall be chosen by the Parties in agreement, and in case of disagreement, by the President of the Udine Bar Association, at the request of the most diligent part.
- The place of arbitration shall be Udine.
- The Arbitration Board shall act objectively and independently, in compliance with the provisions dictated by the Italian Code of Civil Procedure and concerning binding arbitration. The Arbitration Board shall have to decide on the matter in accordance with the relevant law.
- AS shall, in any case, have the right to petition for injunction, where the legal requirements exist, or to apply for an interlocutory injunction or other protective measures. The objection to an injunction must be presented before the ordinary court.
- In any case in which the dispute is deferred to the ordinary court, the Court of Udine shall have exclusively jurisdiction, unless mandatory provisions of the law establish a different exclusive jurisdiction.
- In the event of disputes of an international nature, jurisdiction shall be given to the Italian Judge, for the Court of Udine, which shall decide on the case according to Italian substantive law and according to Italian procedural rules.
Article 13 Final provisions.
- The invalidity or ineffectiveness of a clause contained by these GTCs or by the Agreement, for whatever reason this may occur, shall not determine the invalidity of the GTCs or of the Agreement in their entirety, nor of any of the other contractual provisions not directly connected and/or dependent on the specific clause to be considered invalid and/or ineffective.
- The fact that one of the Parties does not, at any time, enforce the rights recognised by one or more clauses of these GTCs or by the Agreements regulated by them, cannot be understood as a waiver of these rights, nor shall it prevent the Party from subsequently claiming their punctual and rigorous observance.
- The GTCs, as well as the individual Agreements regulated by them, shall be governed by Italian Law. The application of provisions of private international law and laws on conflict of laws and jurisdiction shall, in any case, be excluded.
- No Party of this Agreement shall be able to use the distinctive marks, logos or signs of the other Party, without having obtained the prior consent of the latter. In any case, the Customer hereby gives its consent to adding its name to AS’ list of customers and credentials. The Customer shall not be able to use Oracle’s distinctive marks, logos or signs without the prior written consent of the latter.
- The Customer cannot assign or otherwise transfer the Agreement, its execution or the rights deriving from it to third parties, without the prior written consent of AS. The Customer hereby expressly authorises AS to rely on subcontractors for the provision of the Services covered by this Agreement. AS shall be free to transfer or assign to third parties the receivables deriving from the Agreement.
- Any communication relating to the Agreement must be made in writing, by registered letter with return receipt, or by certified email (PEC) sent to the addresses indicated in the Offer, and shall be effective upon receipt by the recipient.
- None of the provisions of this Agreement can be interpreted as making one of the two Parties an agent or representative of the other, or in the sense of establishing a partnership or a joint venture between the two Parties. Each of the two Parties shall maintain its exclusive economic and managerial independence.
- No modification and/or derogation from the content of these GTCs or from the conditions set out in the Offer shall be considered valid, unless stipulated in a written act countersigned by both Parties.
In this Special Section, the GTCs relating to certain contractual types (divided into Sections) shall be outlined. For each type of contract, the GTCs referred to in the General Part shall therefore apply, as well as those contained in the section governing the specific type of contract.
RESALE OF LICENSES
Article 14 Object. Exclusions.
- This section governs AS’ resale of Oracle licenses.
- The license entails the Customer’s right to use the software subject to the license, for a number of users not exceeding that indicated in the Offer and for the specific use indicated in the software user documentation provided by Oracle, which the Customer declares to have already received and to be fully familiar with.
- The license mentioned in paragraph 1 above also includes a software maintenance service, for the duration of 12 (twelve) months. Upon expiry of the aforementioned 12 (twelve) month period, any renewal of the software maintenance service must be requested by the Customer directly to Oracle Italia S.r.l. and shall be subject to a direct agreement between the Customer and Oracle Italia S.r.l. AS shall not in any way be party to any software maintenance service renewal and/or non-renewal and the Customer shall have no right and/or claim against AS, nor even a mere expectation in this regard. The software maintenance service is a service provided directly by Oracle to the Customer. In this regard, AS’ obligation is strictly limited to providing (for the first 12 (twelve) months) access to this service (i.e. to send the customer the Customer Support Identifier or CSI code referred to in Article 16 below), without any further obligation regarding the quality and/or characteristics and/or suitability of the service to resolve any problems encountered by the Customer.
- The software maintenance service allows access to Oracle’s Support services, namely the organisation of Oracle’s customer service extended to all Oracle product lines, which includes over 7000 workers located in all the countries where Oracle operates, on three time zone, so as to offer the service 24/7. The Oracle Support service (Software Update License & Support) offers customers who subscribe to the service the right to access the following benefits, across all product lines:
- program updates, notifications on security issues and updates through additional coding (patches) for critical issues (bugs) identified on products;
- release of updated versions of products, including: (i) general enhancements to existing software releases, (ii) enhancements to specific features and documentation updates, (iii) new versions of the software, including all supported features;
- support in English when Service Requests are opened, provided 24/7;
- access to the My Oracle Support website and to the documentation contained on it.
- All activities related to the use of the software subject to the Oracle License shall remain the sole responsibility of the Customer, without AS assuming any obligation in this regard, including, by way of example: installation activities and any preceding or consequent activities, software personalisation activities, support in installing/configuring/using the software or its updates/patches, correction of bugs, training offered to Customer staff, etc. AS shall not provide any assistance activities in relation to the Oracle Support service or, in any case, to services offered by Oracle (even if included in the fees provided for in the Agreement).
Article 15 Acceptance of the Oracle license terms. Termination clause. Penalty.
- Together with the Offer, AS shall also send the Customer the Transactional Oracle Master Agreement (TOMA).
- In case the Customer accepts the Offer, it shall return to AS the Offer countersigned for acceptance in all its parts, as well as the TOMA, countersigned for acceptance.
- The full acceptance of the TOMA by the Customer and the return of the same to AS, constitutes a suspensive condition with respect to any obligation and/or provision undertaken by AS. Where the Customer does not return a signed TOMA, AS shall not be required to perform any services, without prejudice to all the contractual obligations undertaken by the Customer (including, inter alia, the obligation to pay the consideration due). Any delay in the provision of the services entrusted to AS due to the failure to send and/or the delayed sending of the TOMA accepted by the Customer, shall remain in the exclusive responsibility of the Customer. In this case, the Customer shall not be entitled to make any claim against AS, nor shall it be able to request changes to the service entrusted to AS.
- The failure to send the TOMA accepted by the Customer within the maximum term of 5 (five) days from the acceptance of the Offer will result in the automatic termination of the Agreement, due to the negligence of the Customer.
Article 16 AS’ business activities. Operating procedures. Delivery.
- Where the Offer is accepted and the TOMA accepted by the Customer is sent as provided for in Article 15 above, AS shall contact Oracle confirming the successful completion of the transaction; Oracle shall send the Customer an email communication to confirm and formalise the activation of the license; where this communication is sent from Oracle to AS, AS shall forward it to the Customer without delay. In this communication, Oracle shall indicate the CSI (Customer Support Identifier) provided by Oracle, through which the Customer will be able to access the Oracle platform to use the software maintenance service.
- In the event that it has not received the communication containing the CIS referred to in paragraph 1 above, the Customer, within a period of 5 (five) days from the time AS has received the accepted Offer and TOMA, shall have to inform AS in this regard within a maximum period of no later than a further 5 (five) days; where AS has not received any notification from the Customer in this regard after this period of 10 (ten) days, without prejudice to cases of wilful misconduct and/or gross negligence on the part of AS, the latter’s delivery obligation as relating to the CIS shall be considered fulfilled. In the event of notice received beyond the aforementioned maximum term and aimed at facilitating contact with Oracle, any assistance provided by AS to the Customer cannot in any way be interpreted as an exemption or an implicit modification of the foregoing, with the delivery obligation on the part of AS, in any case, being understood as fully fulfilled.
Article 17 Warranty. Forfeiture.
- AS shall only guarantee the compliance of the license provided with respect to the services covered by the Offer; moreover, with regard to the software maintenance service, AS shall only guarantee the performance of the activities necessary for Oracle to send the Customer – in the manner provided for in Article 16 above – the communication containing the CSI code required for accessing the service.
- The Customer must verify the correspondence of the license provided with respect to the services covered by the Offer within 8 (eight) days from delivery. Where no complaints are sent within this period (to be considered peremptory), the supply shall be considered as duly accepted by the Customer, and consequently, no subsequent dispute can be raised by the Customer.
- In the case provided for by Article 16, paragraph 2 above, the Customer’s failure to provide notice within the term provided therein shall also result in the forfeiture of the guarantee provided for above.
- AS shall not assume any guarantee in relation to the performance of the licensed software, its suitability for the customer’s needs, its quality and/or operation, the absence of bugs or malfunctions in general, the incompatibility of the same software with the Customer’s systems (hardware and software), the absence of infringement of copyright and/or proprietary rights in relation to the software and, more generally, the technical characteristics of the said software. The Customer acknowledges that the choice of the type of software covered by the Oracle license has been made independently by the Customer, including through reliance on its consultants, without any involvement on the part of AS or its personnel.
Article 18 Intellectual property and restrictions on use.
- In accordance with the Terms of Distribution between Oracle and AS, the Customer acknowledges and accepts that Oracle or its licensors shall retain ownership, including intellectual property rights, in relation to the software covered by the Oracle License. All rights are reserved and, through the Agreement, the Customer shall not be granted any rights other than those specifically described in it, not even implicitly, by acquiescence or otherwise.
- The customer shall not be permitted to:
- use the software licensed by Oracle for any scope or purpose not covered by the provisions of the Agreement (including the provisions contained in the TOMA);
- remove or modify any trademarks, distinctive signs or information relating to the software supplied by Oracle or its licensors;
- rent or lease or timeshare the software, or provide fee-based services for the software to third parties (unless otherwise permitted by Oracle in the specific program license acquired by the Customer);
- perform or authorise reverse engineering, disassembly or decompilation of the licensed software (the aforementioned prohibition includes, by way of example, the analysis of data structures or similar materials produced by the software);
- disclose the results of software evaluation activities or tests without Oracle’s prior consent;
- take actions that could harm Oracle or the software;
- enter into agreements that necessitate taking actions that are in direct conflict with the provisions of the Agreement, the TOMA and these GTCs;
- resell the licensed software.
Article 19 Infringement of patents or copyrights. Limitation of liability.
- Where any third party submits a complaint to the Customer contesting that the software infringes intellectual property rights, the Customer shall:
- promptly notify AS in writing of the dispute, within 15 (fifteen) days from the date on which it has received such notice;
- exclusively delegate the defence and any negotiations for settlement agreements to Oracle, giving it all the necessary powers in this regard;
- provide AS and Oracle with all the information and the appropriate assistance.
- Where Oracle believes, or it is determined that the software may have violated a third party’s intellectual property rights, Oracle may, at its discretion, modify the software so that it no longer violates the aforementioned rights (while maintaining the benefits or functionality of the software unchanged) or decide to obtain a license to enable the legitimate use thereof. In the event that these alternatives are not commercially reasonable, Oracle may terminate the Oracle License Agreement. In this case and exclusively in the event that such termination occurs within the first 12 (twelve) months from delivery, the Customer shall be entitled to obtain a refund of the consideration received for the license, in addition to the fee for the software maintenance service of which it cannot benefit from due to the aforementioned termination (counted in months, considering the month of use from the 15th day of each month). The Customer shall not be entitled to any further compensation from AS.
- AS declines all responsibility, and therefore shall not provide any compensation, including in the event of early termination of the Oracle license (without prejudice to the limits indicated above), in cases where the Customer has modified the software or the Customer has used the software for purposes other than those provided for in the relative user documentation or in cases where it used an older version of the software, or where the violation could have been avoided using an updated and unmodified version of the software.
- AS declines all responsibility, and therefore shall not provide any compensation, including in the event of early termination of the Oracle license (without prejudice to the limits indicated above), for disputes on alleged violations based on: (1) a patent that already exists and that the Customer was aware of before the date of signing the Agreement or (2) actions performed by the Customer itself.
- The Customer shall be required to indemnify AS and Oracle in cases where a third party disputes that the software, used in combination with any product or service belonging to the Customer, violates its intellectual property rights and if such a dispute could have been avoided using the software on its own.
- This Article provides for exclusive remedies in case of infringement of intellectual property rights, with the exclusion of any other remedy.
LICENSES FOR THE USE OF SOFTWARE PRODUCTS.
Article 20 Object. Exclusions.
- This section governs the granting, by AS, of the non-exclusive and non-transferable license for the software indicated in the Offer, accompanied by any usage documentation attached to the Offer. The licensed software is supplied to the Customer in its base/standard version, without any customisations. Any customisation/adaptation activities which may be requested by the Customer, may form the subject of additional and separate Agreements, pursuant to sections III and IV of these GTCs.
- The license entails the Customer’s right to use the software subject to the same license, without territorial limitations and for the specified use; the right of use is personal in nature and belongs exclusively to the customer and is not transferable by the same to third parties. The use of the software by companies controlled by the Customer is permitted.
- The license mentioned in paragraph 1 above also includes a software maintenance/update service, for the duration of 12 (twelve) months from the date of acceptance of the Offer. Upon expiry of the aforementioned period of 12 (twelve) months, the Customer shall have the right to renew the maintenance/update service, under the conditions already specified in the Offer.
- The maintenance/update service offers the customer the opportunity to receive updates released by AS and to use the most recent versions of the application. Where the Customer does not subscribe to the AS maintenance/update service, the latter shall not guarantee the continued usability of the licensed software, nor its continued compatibility with other software/platforms used by the Customer.
Article 21 Duration.
- The license is perpetual in nature and is granted without time restrictions.
- The maintenance/update service has the duration indicated in Article 20 paragraph 3 above.
Article 22 Warranty. Forfeiture.
- AS guarantees that the licensed software does not infringe intellectual property rights and/or property rights belonging to third parties and undertakes to indemnify and hold harmless the Customer from any action that may be taken against it by third parties in relation to the software and alleged rights claimed by third parties on it. Where such circumstances occur, the Customer shall – under penalty of forfeiture of the guarantee – denounce the action and/or in any case the receipt of a communication from the third party no later than 8 (eight) days from the day in which it received such notice (or should have, according to standard due diligence). In this case, the defence shall be taken on directly by AS through its legal representatives, who shall manage any dispute, including on behalf of the Customer.
Article 23 Intellectual property and economic exploitation.
- The Customer acknowledges and expressly recognises that all intellectual property rights on the licensed software, in each and in all its parts, as well as all economic/commercial use rights, are and remain the exclusive property of AS.
- The Customer undertakes not to carry out any action deemed functional and/or even suitable to violating AS’ rights set out in paragraph 1 above; by way of example, therefore, the Customer undertakes not to:
- use the licensed software for any scope or purpose not covered by the provisions of the Agreement and by these GTCs;
- remove or modify any trademarks, distinctive signs or information relating to the software;
- rent or lease or timeshare the software, or provide fee-based services for the software to third parties;
- perform or authorise reverse engineering, disassembly or decompilation of the licensed software (the aforementioned prohibition includes, by way of example, the analysis of data structures or similar materials produced by the software);
- disclose the results of software evaluation activities or tests without AS’ prior consent;
- take actions that could harm AS or the software;
- enter into agreements that necessitate taking actions that are in direct conflict with the provisions of the Agreement and of these GTCs;
- resell the licensed software;
- circumvent the technical limitations and technological protection measures included in the software;
Article 24 Liability. Limitations.
- The choice of software is made directly by the Customer; consequently, the risk of any incompatibility between the software and the Customer’s IT/technological systems remains the exclusive responsibility of the latter.
- AS shall not be liable to third parties for any direct or indirect, incidental or consequential damage that has been caused by the improper use of the software and/or a use that does not comply with AS indications or directives on the software, or due to negligence, inexperience, carelessness, malicious or otherwise improper actions and/or omissions on the part of the Customer or third parties, not attributable to AS.
- AS cannot be held responsible for software malfunctions caused by technical problems on machines, servers, routers, telephone lines, telecommunication networks, etc. owned by the Customer or by companies selected by the latter for the administration of these services.
- AS cannot be held responsible for the malfunction of the software due to non-compliance and/or obsolescence of the equipment in the Customer’s possession.
- In the event that the Customer makes changes or alterations of any kind to the software, AS cannot be held responsible for any malfunctions or damage caused to third parties.
PROVISION OF “TURNKEY” CUSTOMISATION SERVICES.
Article 25 Object. Exclusions.
- This section governs the implementation of a Software Solution by AS.
- Through the “Turnkey” Service the Customer entrusts AS with the development/implementation of a Software Solution that responds to specific requirements previously identified by the Customer and/or aimed at offering the Customer certain IT features, deemed necessary by it to meet its needs and/or in any case to be functional to its business.
- The Customer undertakes to communicate to AS the specific needs it intends to satisfy by implementing the Software Solution. After receiving this information and prior to the formulation of the Offer, AS – in collaboration with the Customer – shall carry out a pre-analysis aimed at defining the feasibility of the required Software Solution and the actual possibility of meeting the requirements and/or implementing the functionality required. The extent of the pre-analysis shall depend on the degree of complexity of the required Software Solution.
- Once this pre-analysis has been carried out, AS shall draft the Offer, possibly collaborating with the Customer as regards the technical aspects, analytically reporting the requirements that the Software Solution will have to meet, the cost of the “Turnkey” Service and the billing and payment terms, the timing of the development/implementation of the solution and, if applicable, the relative Milestones. In more complex cases, the technical characteristics of the “Turnkey” service may be formalised in a specific document, which will serve as the technical specifications to be attached to the Offer.
- The timeframes specified in the Offer shall not be binding for AS and take on a purely indicative value towards the same, unless the peremptory nature of the same is expressly requested by the Customer during the Offer.
- The “Turnkey” Service shall not include the supply/license of the underlying technology and/or platform; the supply/license of such technology/platform is the responsibility of the Customer who, however, shall be free to contact AS to provide this additional activity by entering into a further and different Agreement (e.g. a license resale agreement).
- Unless otherwise provided for in the Offer, the “Turnkey” Service does not include any monitoring of the operation of the Software Solution, user support, subsequent updating of the software and similar activities and/or maintenance of the Software Solution. In case the Customer requests them, these services may be subject to independent and separate offers, pursuant to Section IV below.
- Normally, activities are carried out remotely; in cases where, due to the characteristics of the Customer’s business activities or at its express request AS’ presence is necessary on site, in addition to the expected fees, the Customer must also pay AS the relative travel expenses, as agreed upon in the Agreement.
Article 26 Nature of AS’ obligation. Customer’s activity. Express termination clause.
- AS exclusively assumes an obligation of means, without any assumption of responsibility for any result expected by the Customer. In particular, AS exclusively undertakes to provide the Customer with a Software Solution that meets the requirements defined in the Offer, without any guarantee relating to the repercussions and/or consequences expected by the Customer in relation to its production cycle and/or its organisation and/or, more generally, its business.
- The Customer undertakes to carry out all the activities for which it is responsible in the shortest possible time and, in any case, within the timeframes indicated in the Offer and/or in the technical specifications. This obligation is also assumed by the Customer in relation to any activities concerning the work of third parties (e.g. hardware suppliers, software suppliers, collaborators in general, etc.).
Article 27 Intermediate checks. Go Live. Testing.
- Upon reaching a Milestone, AS shall communicate to the Customer the completion of the operational phase and shall send the Customer, as appropriate, a report of the activities carried out and of the results achieved or, cumulatively or as an alternative to the aforementioned report, the Deliverable connected to the Milestone reached.
- In the absence of any disputes and/or findings by the Customer within the next 10 (ten) days, the report and/or Deliverable shall be considered accepted to all intents and purposes and, likewise, the underlying work shall also be considered as expressly accepted (including pursuant to Articles 1665 and 1667 of the Italian Civil Code).
- Following the express or implicit approval of the report/Deliverable related to each Milestone, AS shall be able to proceed with the invoicing provided for by the Offer.
- Once the Software Solution has been developed, with the completion of any further project Milestones, AS shall proceed with the Go Live, informing the Customer in this regard.
- Within 30 (thirty) days from the Go Live, the Customer must communicate to AS any malfunctions relating to the Software Solution or any discrepancies of the same with respect to what is provided for in the Offer (or in the technical specifications annexed to it). Where the Customer communicates any malfunctions and/or discrepancies, AS shall take appropriate action with the help of its staff in order to resolve the issues identified. Once the malfunction/discrepancy has been resolved, the Parties shall sign a special report certifying as much.
- Where the Customer does not provide any communication in this regard within the aforementioned period, AS shall consider the work positively tested and, consequently, the Solution shall be considered as accepted in full by the Customer, including pursuant to Articles 1665 and 1667 of the Italian Civil Code. Where any malfunctions/discrepancies are communicated by the Customer – except as provided for in the previous paragraph – the work shall still be considered accepted, pursuant to this paragraph, other than the content of the malfunction/discrepancy reported.
- Where, during the development/implementation of the Software Solution, the Customer requests a modification/implementation of the solution in a manner different from that provided for in the Offer (or in the technical specifications which may be annexed to the Offer), AS shall be free to evaluate this request and, in case of acceptance, a further Offer shall be drawn up which shall include, among others, any modifications of the delivery timeframes of the original Software Solution.
Article 28 Liability. Limitations of Liability. Exclusions.
- AS shall be responsible for the compliance of the Software Solution with what has been specified in the Offer (including any technical specifications).
- AS does not assume any responsibility in relation to malfunctions of the Software Solution due to or which can be connected to:
- bugs, defects and/or in any case malfunctions of the platform/basic technology selected by the Customer;
- incompatibilities between the Software Solution and other software used by the Customer (including the platforms/technologies), even where related to the release by the developer of more updated versions of the same software;
- activities carried out by the Customer or by third parties, even where these activities took place before the Go Live and during the development/implementation of the Software Solution;
- any other activity not included among the activities to which AS was held in relation to the Agreement.
- Where the Customer’s activities and/or failure to act should lead to an extension of the timeframes established in the Offer, all timeframes and/or milestones which AS is expected to comply with subsequently with respect to this extension shall automatically be extended, by a period of time equal to one and a half times the duration of the extension attributable to the Customer and/or to the third party appointed by the same; it is understood that, if this extension entails additional costs for AS, the latter shall be authorised to charge back such costs to the Customer, including them in the next invoice issued or, at its discretion, by issuing a specific invoice to cover such costs. AS shall, in any case, be entitled to take action to receive full compensation for all damage suffered due to such delay.
- In the hypothesis provided for by paragraph 3 above, where any contractual provision (e.g. in case of application of the Customer’s GTCs or in case of an express derogation from these GTCs included in the Offer) provide for penalties or similar against AS due to a delay, nothing shall be due by AS for any reason whatsoever due to the extension of the timelines.
- Where the Customer – within the warranty period and in compliance with the reporting deadlines provided for in these GTCs – reports an alleged non-compliance to AS, AS shall proceed to analyse the non-compliance received. Where, from the analysis conducted, a responsibility should emerge on the part of AS, the latter shall be required to resolve the non-compliance without any charge to the Customer. On the other hand, where from the analysis activity it should emerge that the reported malfunction does not fall within the Guarantee provided for by AS or where the complaint does not comply with the prescribed timeframes, AS – without prejudice to its right to charge the analysis costs according to the pricing structure provided for by the T&M (Time and Material) formula – shall submit to the Customer an Offer according to the T&M formula (or according to the different formula deemed most appropriate as specified in Section IV below), which shall be subject to a separate and autonomous negotiation.
Article 29 Source Code. Intellectual property.
- Following a positive test result pursuant to Article 27 above and following the payment, as due, by the Customer of the invoices issued by AS, AS shall also deliver to the Customer the source code of the Software Solution, accompanied by the relevant technical documentation.
- The Customer shall be entitled to modify/implement the Software Solution according to its specific needs and shall be free to entrust this task to AS or to any other third party.
- The Customer, however, undertakes not to transfer the source code and/or technical documentation and/or use of the Software Solution to third parties (for any reason), neither in the version covered by the Agreement with AS, nor in any version arising from changes made, expressly assuming the obligation, towards AS, to designate the Software Solution for the exclusive internal use of its corporate organisation.
- AS shall retain all rights related to the economic use of the Software Solution and/or of the expertise related to the Software Solution, as well as of any additional and different expertise developed during the implementation of the Software Solution; likewise, any discoveries and/or inventions that may arise during the development/implementation of the Software Solution on behalf of the Customer, shall also fall under the exclusive ownership of AS.
- AS guarantees that the Software Solution does not infringe intellectual property rights and/or property rights belonging to third parties and undertakes to indemnify and hold harmless the Customer from any action that may be taken against it by third parties in relation to the Software Solution and alleged rights claimed by third parties on the same solution. Where such circumstances occur, the Customer shall – under penalty of forfeiture of the guarantee – denounce the action and/or in any case the receipt of a communication from the third party no later than 8 (eight) days from the day in which it received such notice (or should have, according to standard due diligence). In this case, the defence shall be taken on directly by AS through its legal representatives, who shall manage any dispute, including on behalf of the Customer.
ASSISTANCE – CONSULTING – SUPPORT SERVICES
Article 30 Object.
- This section governs the execution, on the part of AS, of the provision of assistance, consulting and/or support services through its qualified personnel, in order to assist the Customer’s staff and/or IT department in using Oracle licensed application and technology solutions or Software solutions supplied by AS according to any of the contract types referred to in Sections I, II and III of the Special Part of these GTCs.
- The activities carried out by AS are divided into:
- Time and Material (T&M) on-call support service;
- Application Maintenance (AM) service;
- System Support Service (SSS).
- All the activities and services covered by this section shall be carried out by AS with the support of its own employees, or, in any case, relying on personnel whose activities can be legitimately used by AS. AS does not guarantee the Customer the use of a specific resource; AS shall only be required to guarantee the performance of the specific activity provided for in the Agreement, regardless of the identity of the resource used. The Customer may – where it deems it appropriate – request the use of a specific resource; in this case, AS shall try to satisfy, to the extent possible, the customer’s preference in involving specific professionals in the performance of the contractual services. This commitment shall not create any right and/or expectation on the part of the Customer; AS, in fact, shall be completely free to assign the personnel it deems appropriate, at its sole discretion, to perform the Services, as well as to change any resource assignment, without being required to provide any justification to the Customer in this regard.
- Normally, activities are carried out remotely; in cases where, due to the characteristics of the Customer’s business activities or at its express request AS’ presence is necessary on site, in addition to the expected fees, the Customer must also pay AS the relative travel expenses, as agreed upon in the Agreement.
Article 31 Time and Material (T&M) on-call support service.
- T&M is a framework Agreement with which AS and the Customer define the economic conditions of any assistance, consulting and/or support services provided by AS personnel, categorised by each professional role taken into consideration.
- Taking into account its time/scheduling focused nature, the stipulation of a T&M Agreement does not constitute a source of contractual obligations, nor does it attribute expectations of the stipulation of future implementing contracts, only identifying the general provisions for the discipline of subsequent agreements, issued in the manner set out below.
- Each T&M Agreement shall be valid from its subscription date until 31 December of the same year. T&M Agreements shall not be subject to tacit renewal.
- Where a T&M Agreement is in place, a Customer that intends to take advantage of the professional services provided by AS, shall have to send AS a written request containing the required professional role and the period of time to which this request refers; where the Customer is unable to identify the professional role of reference, it shall provide AS with as many details as possible on the specific needs covered by the request; AS shall specify to the Customer the role deemed to be professionally most suitable to meet the specific needs. It shall however be understood that, regardless of AS’ intervention in facilitating the choice, the responsibility for choosing the reference professional role shall fall solely on the Customer.
- Upon receipt of the Customer’s request and having verified the availability of the resources, AS shall communicate to the Customer the timeframes for the fulfilment of the request and in which the service can be provided; in the absence of written feedback from the Customer, by the end of the working day following the day on which the communication of availability has been provided, AS may free the resource concerned, considering the service not confirmed. On the other hand, in case the Customer intends to confirm the offer, it must do so within the working day following the day on which it has received the offer in question. The receipt of said acceptance shall constitute the time of execution of the Implementing Agreement.
Article 32 Application Maintenance (AM) service.
- Through the AM Service, AS undertakes to offer the Customer a group of services functional to maintaining the “as is” state of the Oracle applications included in the Offer (i.e. their state at the time the Agreement is signed), in order to guarantee their continuity.
- The AM Agreement allows the Customer – against their purchase with advance payment – to be able to use certain services defined in the Offer.
Article 33 System Support Service (SSS).
- Through the SSS service, AS undertakes to carry out monitoring of the technological infrastructure of the customer’s Oracle systems, through an ongoing process that includes the services defined in the Offer.
Article 34 Common provisions for the AM and SSS services.
- At the Customer’s request, AS shall carry out an analysis of the Customer’s systems and of the applications for which it intends to use the AM Service or the SSS service, in order to verify the status of the same and their functionality; based on the results of this analysis, should AS confirm its availability, the Customer shall indicate the specific services it intends to include in the AM service and/or in the SSS service. AS shall formulate its Offer based on this information.
- Where the Offer is accepted, the Customer shall be required to pay the fee corresponding to the packages purchased, to the extent and according to the timeframes indicated in the Offer; the Customer shall only be able to start using the Services offered upon payment of the fees due, as determined above.
- The AM Service and/or the SSS service shall have the duration specified in the Offer. T&M Agreements shall not be subject to tacit renewal. Where, upon expiry of the AM Service and/or of the SSS service, unused packages remain, these shall be reset and the Customer shall no longer be entitled to use them, convert them to other services, nor shall it be able to request any type of refund and/or make any claim related to the unused packages.
- On the other hand, where a Customer finishes the purchased packages (partially or fully) before the expiry of the AM Service or of the SSS service, the Customer shall be able to continue to use the AM Service, paying for the any additional individual services used, based of the rate indicated in the Offer.
Article 35 AM and SSS service: definition of the level of on-call support service via the help desk.
- The activities carried out by AS shall be subject to compliance with specific service levels; the specific methods, levels of monitoring and reporting associated with said service levels shall be defined in the Offer.
Article 36 Liability. Limitations of Liability. Exclusions.
- In relation to all the different contract types governed by this section (T&M, AM, SSS), AS exclusively assumes an obligation of means, without any assumption of responsibility for any result expected by the Customer. In particular, AS exclusively undertakes to provide the Customer the requested Service through the use of specialised resources in relation to the specific Service requested by the Customer and/or the problem reported.
- AS shall not, in any case, assume any responsibility for problems related to bugs, defects and/or malfunctions associated to the Oracle platform/technology selected by the Customer.