CAREFULLY: ADAPTA STUDIO S.R.L., WITH REGISTERED OFFICE IN MILAN (ITALY), VIA PIETRO ANDREA SACCARDO 9, 20134 GRANTS YOU USE AND ACCESS TO ADAPTA STUDIO S.R.L. PROPRIETARY AND LICENSED SOFTWARE ONLY ON CONDITION THAT COMPANY ACCEPTS ALL OF THE TERMS CONTAINED OR REFERENCED IN THIS DOCUMENT.
By selecting the “I ACCEPT” button designed to acknowledge your acceptance of the terms of this electronic copy of this agreement or by accessing or using the Software, or by signing the order agreement, you agree that (i) you are accepting this agreement on behalf of your Company or yourself; (ii) you understand that you are binding the Company or yourself to this agreement, (iii) you have the right, power and authority to act on behalf of the Company (iv) you are an employee of the Company. If you do not agree to be bound by this agreement or you do not believe you have the right, power and authority to act on behalf of the Company then DO NOT CLICK ANYTHING.
USE, ACCESS AND SERVICE AGREEMENT
This USE, ACCESS AND SERVICE AGREEMENT (“Agreement”) is made and entered into as of ________, _____(“Effective Date”) by and between ADAPTA Studio S.r.l., an Italian company with registered office in Milan (Italy), Via Pietro Andrea Saccardo, 20134 (“ADAPTA Studio”) and _________, a company with registered office at________, VAT no. __________, represented by ________(“Company”).
Company desires the right to access and use, via the Internet, Software provided by ADAPTA Studio according to the terms and conditions of this Agreement, and to grant Company Customers (as defined below) the right to access and use, via the Internet, Software provided by ADAPTA Studio according to the terms and conditions of this Agreement.
ADAPTA Studio agrees to provide access and use of the Software via the Internet as a service to Company according to the terms and conditions of this Agreement.
In consideration of the mutual covenants and obligations in this document, which is evidenced by you accepting this Agreement, the Parties now agree as follows:
As used in this Agreement, the following capitalized terms have the meanings given below:
“Software” means ADAPTA Studio proprietary Software AMAZ3D, but does not include Third Party Components.
“Agreement” means this electronic copy of the agreement a hard copy of which is available on request from ADAPTA Studio;
“AUP” means Acceptable Use Policy;
“Business Day” means between 9:00 AM and 5:00 PM CET, excluding public holidays.
“Company Customer” means any customer of Company
“Company Data” means all data, software (including machine images), text, audio, video, images or other content that is provided by or on behalf of Company, Company Customers or End Users for the purpose of access, storage, or processing by the Software so as to provide the Services;
“Company IP” has the meaning set forth in Section 5.2;
“Confidential Information” has the meaning set forth in Section 13;
“Data Privacy Laws” means all applicable data protection Laws that apply to the parties’ performance under this Agreement;
“Data Security Policy” has the meaning set forth in Section 14.8 of this Agreement;
“Effective Date” means the date first written above;
“End User” means a person permitted by Company or a Company Customer to use the Services by or on behalf of Company or a Company Customer;
“Existing Agreements” has the meaning set forth in Section 16.17 of this Agreement;
“Force Majeure Event” has the meaning set forth in Section 16.4 of this Agreement;
“High Risk Activities” means usage such as the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, weapons systems or other environments where the use or failure of the Service or Software could lead to death, personal injury or physical or environmental damage;
“Intellectual Property Rights” has the meaning set forth in Section 5.1;
“Law” or “Laws” are all applicable local, state, national, and international laws, treaties and regulations, codes, ordinances, rules, restrictions, licenses, and judicial or administrative orders that are in effect at the time;
“Personal Information” means data which names or identifies a natural person including, without limitation: (a) data that is explicitly defined as a regulated category of data under Data Protection Laws applicable to Company or Company Customers; (b) non-public personal data, such as national identification number, passport number, social security number, driver’s license number; (c) health or medical information, such as insurance information, medical prognosis, diagnosis information or genetic information; (d) financial information, such as a policy number, credit card number and/or bank account number; and/or (e) sensitive personal data, such as race, religion, marital status, disability, or sexuality. Personal Information shall not include information or data that is anonymized, aggregated or de-identified and/or compiled on a generic basis and which does not name or identify a specific individual or natural person. For the avoidance of doubt, Company Personal Information includes Personal Information of Company End Users and Company Customer End Users.
“Process” means, with respect to Company Personal Information, to access, collect, use, store, manipulate, disclose, transfer, analyse, or destroy any such data, or as otherwise defined in the applicable Data Privacy Laws (and “Process” and “Processing” shall be construed accordingly);
“Security Incident” has the meaning set forth in Section 15.1 of this Agreement;
“Service” or “Services” means the services provided by ADAPTA Studio to Company and for the avoidance of doubt, does not include the Software;
“Service Misuse” means the violation of the Acceptable Use Policy;
“Software” means the AMAZ3D software accessible in order to receive the Services including ADAPTA Studio Software and Third Party Components;
“Term” has the meaning set forth in Section 11.1;
“Third Party Component(s)” means the third party provided software which ADAPTA Studio uses to provide the Service and for the avoidance of doubt, may include open source software; and
“Updates” means updates, enhancements, derivatives, improvements and translations to the Service (including any Software associated with any Service), new Service features and versions and correction of errors in the Service.
- ACCESS AND USE GRANT; RESTRICTIONS.
2.1 Access and Use Grant. ADAPTA Studio hereby grants to Company a limited, non-transferable (except as permitted by the terms of this Agreement), non-exclusive right
(a) to access and use the Software and the Services solely for its own internal business purposes and
(b) to allow Company Customers to access and use the Software and the Services,
provided that such Company is in compliance with this Agreement, and Company Customers agree in writing to be bound by the terms of this Agreement applicable to Company with respect to the use and access of the Software and the Services.
Services may be provided by ADAPTA Studio, ADAPTA Studio Affiliates, or third parties under contract to ADAPTA Studio.
2.2 Additional Use Restrictions. Company may not and may not permit Company Customers to use the Services or the Software, outside the scope set out in this Agreement without the prior written consent of ADAPTA Studio (which may be withheld at ADAPTA Studio’s sole discretion). Company and Company Customers shall not:
(a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party any Software, the Services or access to the Services in any way;
(b) modify, alter, tamper with or make derivative works based upon the Services or any Software;
(c) frame or mirror the Services on any other server or wireless or Internet-based device;
(d) except to the extent that applicable Law specifically prohibits such restrictions, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or algorithms of the Services or Software, or access the Services or Software in order to: (i) build a competitive product or service; (ii) build a product using similar ideas, features, functions or graphics of the Services or Software; or (iii) copy any , features, functions or graphics of the Services or Software;
(e) access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas;
(f) use the Services or Software, for facility management, timesharing, outsourcing, utility or service bureau purposes or otherwise for the benefit of a third party (other than by Company with respect to Company Customers as expressly permitted herein); or
(g) copy or reproduce all or any part of the Services or any Software except as expressly permitted in this Agreement.
(h) represent itself as an agent of ADAPTA Studio for any purpose;
(i) pledge ADAPTA Studio’s credit;
(j) give any condition or warranty on ADAPTA Studio’s behalf;
(k) make any representation on ADAPTA Studio’s behalf;
(l) commit ADAPTA Studioto any contracts, or
(m) without ADAPTA Studio’s prior written consent, make any promises or guarantees about the Service beyond those contained in this Agreement.
2.4 No Further Rights. All rights not expressly granted in this Section 2 are reserved by ADAPTA Studio.
2.5 Non-Exclusivity. Company acknowledges and agrees that (a) this Agreement is a non-exclusive agreement and ADAPTA Studio reserves the right to provide the Services and Software to third parties without restriction during or after the Term; and (b) nothing in this Agreement shall preclude ADAPTA Studio from marketing, developing or using for itself or others, services or products that are the same as, or similar to, those provided to Company by ADAPTA Studio pursuant to this Agreement.
- COMPANY OBLIGATIONS.
3.1 Company Hardware, Software and Telecommunications. As between ADAPTA Studio and Company, Company is responsible for obtaining and maintaining all hardware, software, hosting and communications equipment necessary to access, host and use the Services, and for paying all third-party access charges (e.g., ISP, telecommunications& hosting incurred while using the Services. Company acknowledges that it has been advised of and can comply with all minimum hardware, software, and communications requirements applicable to the Service.
3.2 Actions of Company Customers and End Users. Company shall be solely responsible for its actions and the actions of Company Customers and End Users while using the Services and for the contents of its transmissions through the Services (including, without limitation, Company IP). Company shall ensure that all Company Customers and End Users comply with Company’s obligations under this Agreement. Company agrees:
(a) to abide by all Laws applicable to Company’s and/or Company Customers’ use of the Services, including, without limitation, all Laws regarding the transmission of technical or personal data or software;
(b) not to upload or distribute files that contain viruses, malicious files or other harmful code or any other similar software or programs that may access or damage the operation of the Services or another’s computer;
(c) not to interfere with or disrupt the Services, the data contained in the Services or networks connected to the Services;
(d) not to send or store obscene, threatening, libelous, or otherwise tortious material, including material harmful to children or violative of third party privacy rights;
(e) to comply with all regulations, policies and procedures of networks connected to the Services;
(f) not to attempt to gain unauthorized access to the Services or its related systems or networks; and
(g) to notify ADAPTA Studio immediately of any unauthorized use of any password or account or any other known or suspected breach of security.
3.3 Passwords; Access. Company is responsible for maintaining control over, and the confidentiality of, all Company Customer IDs, End User IDs, usernames, passwords, and other access credentials for the Service provided by ADAPTA Studio. Company is responsible for all use of the Services by those who have access to the Services through Company (directly or indirectly), except to the extent that unauthorized use of the Service Credentials is caused by ADAPTA Studio failing to comply with the security requirements of this Agreement.
3.4 Acceptable Use Policy. Company, Company Customers and End Users shall at all times comply with ADAPTA Studio’s acceptable use policy as modified from time to time (“AUP”), and which is posted at www.ADAPTA.studio\AUP. In the event of a violation of the AUP (a “Service Misuse”) by Company, Company Customers or any End User, ADAPTA Studio may suspend access to the affected Services if reasonably deemed necessary by ADAPTA Studio, acting in good faith, in order to stop or minimize the effects to ADAPTA Studio or other clients of a Service Misuse. When commercially practicable, ADAPTA Studio will provide prior written notice to Company and an opportunity to cure the Service Misuse, and where not commercially practicable, ADAPTA Studio will give prompt written notice following such suspension to Company.
3.5 Security and Backup. Company is responsible for taking steps to maintain appropriate security, protection and back-up of Company Data, which may include the use of encryption technology to protect Company Data from unauthorized access and routine archiving of Company Data.
- ADAPTA STUDIO OBLIGATIONS; SUPPLY OF SERVICES.
4.1 Delivery of Services. ADAPTA Studio will use commercially reasonable efforts to provide each of the Services to Company and continuing through the Term, in accordance with the terms of this Agreement.
4.2 Access. ADAPTA Studio will use commercially reasonable efforts to provide access to the Software, subject to scheduled downtime for maintenance purposes, unscheduled maintenance, and system outages and any failure of the Internet between ADAPTA Studio and the Company. The parties acknowledge that, since the Internet is neither owned nor controlled by any particular entity, ADAPTA Studio can make no guarantee that any given user will be able to access the Services at any given time because the Internet may be inaccessible from that user’s location. There are also no assurances given that access to the Software and the Service will be available at all times or be uninterrupted, and ADAPTA Studio shall not be liable to Company or to any third party for failure of accessibility to the Services, including due to failures of the Internet, of the cloud service provider or for other causes beyond ADAPTA Studio’s reasonable control.
- INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS.
5.1 Rights Regarding Intellectual Property. ADAPTA Studio alone (and its licensors, where applicable) own all right, title and interest, including all unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, industrial rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world (“Intellectual Property Rights”), in and to the Services and the Software and information provided by Company, Company Customers or any other party relating to the Services. This Agreement does not convey to Company or Company Customers any rights of ownership in or related to the Services, the Software or the Intellectual Property Rights owned by ADAPTA Studio except as explicitly provided in this Agreement. The ADAPTA Studio name, the ADAPTA Studio logo, AMAZ3D and the product names associated with the Services are trademarks of ADAPTA Studio or third parties, and no right or license is granted to use them. Company shall take all such steps as ADAPTA Studio may reasonably require to assist ADAPTA Studio in maintaining the validity and enforceability of the
Intellectual Property Rights of ADAPTA Studio and its licensors during the term of this Agreement. Company shall not do or authorize any third party to do any act which would or might invalidate or be inconsistent with any Intellectual Property Rights of ADAPTA Studio or its licensors and shall not omit or authorize any third party to omit to do any act which, by its omission, would have that effect or character. ADAPTA Studio makes no representation or warranty as to the validity or enforceability of the Intellectual Property Rights in the Services or Software nor as to whether the same infringe on any Intellectual Property Rights of third parties.
- COMPLIANCE WITH APPLICABLE LAWS.
6.1 Compliance with Laws Generally. Without limiting the other terms of this Agreement, Company shall be solely responsible for its own compliance and compliance by Company Customers and End Users with all Laws (including without limitation the Laws governing export control, unfair competition, anti-discrimination, false advertising, privacy and publicity) applicable to Company’s and Company Customers’ business and use of the Services. The parties agree that ADAPTA Studio may in its sole discretion make changes to the Service from time to time as may be reasonably necessary or appropriate for ADAPTA Studio to comply with applicable Laws. The parties further agree that if a change in applicable Laws makes the continued performance of this Agreement or any part thereof, in ADAPTA Studio’s sole reasonable discretion, unduly burdensome or unlawful, ADAPTA Studio may terminate this Agreement upon notice to, and without further obligation to, Company.
Company Order is subject to this Agreement. No Orders are binding on ADAPTA Studio until accepted by ADAPTA Studio. Orders for Software are deemed to be accepted upon Vendor’s delivery of the Service Credentials for accessing the Software and the Service.
- WARRANTIES AND DISCLAIMER.
8.1 ADAPTA Studio Warranty. ADAPTA Studio warrants that the Software in the form delivered to Company, will function in all material respects as specified in technical documentation. Company shall promptly provide ADAPTA Studio with written notice of any failure of the Software to perform as warranted. This warranty is expressly conditioned on Company’s compliance with any operating, security, and data-control procedures set forth in the relevant technical documentation. The ADAPTA Studio warranty in this Section 8.1 does not apply to:
(a) Improper use of the Service;
(b) Errors or problems in Company Data or Company IP impacting the Service;
(c) Failure to maintain the necessary networking, hardware, software, firewalls and/or environmental conditions for use of the Service;
(d) Any breach by Company of its obligations under this Agreement and the breach causes the problem; or
(e) Errors caused by Third Party Components or hardware, or the configuration of such items (e.g. Company’s or a Company Customer’s firewalls are blocking all traffic).
8.2 Exclusive Remedy. In the event the Services fail to perform as warranted in Section 8.1, ADAPTA Studio shall use commercially reasonable efforts to correct any such failure which materially impairs the performance of the Services. In the event ADAPTA Studio is unable to correct such failure by exercising reasonable commercial efforts for a reasonable period of time, either party may terminate this Agreement
and Company’s sole additional remedy shall be for ADAPTA Studio to provide a pro-rata refund of any pre-paid Fees for periods after the effective date of termination.
8.3 Company Warranty. Company warrants that it has obtained all authorization(s), consents and licenses necessary to fully perform this Agreement, and to use Company IP to be used in conjunction with the Services.
8.4 Party Warranties. Each party further warrants that: (a) it has the right to execute this Agreement and act in accordance with its terms; (b) the execution and performance of the Agreement are within its respective corporate powers, have been duly authorized by all necessary corporate action, do not require any consent of or filing with any third party or governmental body or agency, and do not violate any Law, agreement, or the like or their respective charter or by-laws; and (c) this Agreement will constitute valid and binding obligations of that party enforceable against it in accordance with its terms.
8.5 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, ADAPTA STUDIO AND ITS LICENSORS PROVIDE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR GUARANTEES ADAPTA STUDIO DISCLAIMS ANY IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS, WHETHER STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, INFORMATIONAL CONTENT, SYSTEMS INTEGRATION, INTERFERENCE WITH ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT, AND ALL CONDITIONS OF MERCHANTABLE QUALITY, INCLUDING ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. ADAPTA STUDIO DOES NOT WARRANT THAT (A) THE SERVICES OR SOFTWARE WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE OR (B) THE SERVICE OR SOFTWARE WILL MEET COMPANY’S OR COMPANY CUSTOMERS’ REQUIREMENTS. NO WARRANTY IS MADE REGARDING THE RESULTS TO BE OBTAINED FROM ANY SERVICES. COMPANY ACKNOWLEDGES AND AGREES THAT ADAPTA STUDIO EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, COMPANY’S OR COMPANY CUSTOMERS’ COMPLIANCE WITH ANY LAW OR REGULATION APPLICABLE TO COMPANY, COMPANY CUSTOMERS OR END USERS. THESE DISCLAIMERS WILL APPLY UNLESS APPLICABLE LAW DOES NOT PERMIT THEM. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ADAPTA STUDIO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
8.6 High Risk Activities. ADAPTA Studio, on behalf of itself and its suppliers and licensors, specifically disclaims any express or implied warranty of fitness of the Services and Software for High Risk Activities. The Services and Software are not fault-tolerant and are not designed, manufactured or intended for use or resale in connection with High Risk Activities.
9.1 Company Indemnity. Company will defend any third party claim against ADAPTA Studio and pay any damages and costs finally awarded against ADAPTA Studio by a court of competent jurisdiction or that are included in a settlement approved by Company (i) to the extent Company IP or ADAPTA Studio’s access or use thereof is held to infringe a valid patent issued as of the Effective Date, copyright, trademark, trade secret, or other property right of any third party and (ii) for any and all claims of whatever nature brought by any of Company Customers or End Users against ADAPTA Studio, including without limitation any claims regarding the Software or Services. This obligation is contingent upon: (a) ADAPTA Studio’s prompt written notification to Company of the claim; (b) ADAPTA Studio’s tender to Company of the case and settlement negotiations; (c) at Company’s option, Company’s sole control of the defense and settlement negotiations related to the claim; (d) ADAPTA Studio’s assistance (at Company’s expense) in the defense or settlement of the claim; and (e) ADAPTA Studio not making any admission prejudicial to the defense of the claim. Company shall have no obligation to pay damages or settlement amounts negotiated by ADAPTA Studio. ADAPTA Studio agrees to take all reasonable steps to mitigate losses. Company will take all necessary measures to preclude ADAPTA Studio from being made a party to any lawsuit or claim regarding any Software or Services provided to Company Customers.
9.2 ADAPTA Studio Indemnity. ADAPTA Studio will defend any third party claim against Company and pay any damages and costs finally awarded against Company by a court of competent jurisdiction or that are included in a settlement approved by ADAPTA Studio, to the extent the Services or Company’s access or use thereof is held to infringe a valid Italian issued patent, Italian copyright or trademark laws, trade secret, or other property right of any third party. This obligation is contingent upon: (a) Company’s prompt written notification to ADAPTA Studio of the claim; (b) Company’s tender to ADAPTA Studio of the case and settlement negotiations; (c) ADAPTA Studio’s sole control of the defense and settlement negotiations related to the claim; (d) Company’s assistance (at ADAPTA Studio’s expense) in the defense or settlement of the claim; and (e) Company not making any admission prejudicial to the defense of the claim. ADAPTA Studio shall have no obligation to pay any damages or settlement amounts negotiated by Company. Company agrees to take all reasonable steps to mitigate losses.
9.3 Exclusions. ADAPTA Studio shall not have any obligation to indemnify Company if:
(a) Company or a third party (including without limitation, a Company Customer) modifies the Service and the modification causes the claim;
(b) Company or a Company Customer fails to use Updates to the Service that ADAPTA Studio makes available to Company, and ADAPTA Studio notified Company that the use of the Update would prevent the claim;
(c) Company or a Company Customer uses the Service in combination or aggregated with any product or service that ADAPTA Studio does not own or develop, and that combination or aggregation causes the claim;
(d) the claim for infringement arises solely from any Third Party Component;
(e) Company or a Company Customer breaches this Agreement, and that breach causes the claim (e.g., aggregating the Service); or
(f) Company gives ADAPTA Studio specifications, instruction, materials, or related information related to the performance of the Service which causes the claim.
9.4 Infringement Remedies. If the Services are held to be infringing or where ADAPTA Studio believes it may be infringing, ADAPTA Studio may at its expense and option: (a) obtain for Company the right to continue using the Services; (b) modify or replace the Services with non-infringing software of similar functionality; or (c) if such remedies are not reasonably available, terminate Company’s access to the Services and return any prepaid fees for the unused portion of the Services. ADAPTA Studio will not be liable to Company if an infringement claim is based on: (i) use of the Services in combination with any components not supplied by ADAPTA Studio; or (ii) use of the Services in violation of any terms of this Agreement.
9.5 Exclusive Remedy. The remedies stated in this Section are the sole and exclusive remedies of each party with respect to any indemnified claims related to the Services.
- LIMITATION OF LIABILITY.
10.1 Limitation of Liability SAVE FOR MANDATORY LIMITS OF LAW, ADAPTA STUDIO’S TOTAL, AGGREGATE, SOLE AND CUMULATIVE LIABILITY TO COMPANY (WHETHER FOR BREACH OF CONTRACT OR EXTRA-CONTRACTUAL LIABILITY OR OTHERWISE) FOR ANY CLAIM IN ANY MANNER RELATED TO THIS AGREEMENT OR TO THE SERVICE, SHALL BE THE PAYMENT OF DIRECT DAMAGES (“DANNO EMERGENTE”) AND SUCH DAMAGES SHALL IN NO EVENT IN THE AGGREGATE EXCEED AN AMOUNT EQUAL TO EURO 1,000.00 (“ONE THOUSAND”).
10.2 Disclaimer of Certain Categories of Damages. IN NO EVENT WILL ADAPTA STUDIO BE LIABLE TO COMPANY OR ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION COMPANY CUSTOMERS AND END USERS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE), FOR ANY LOSS OF PRODUCTION, LOSS, INACCURACY OR CORRUPTION OF DATA, LOSS OF PROFITS OR OF CONTRACTS, LOSS OF BUSINESS OR OF REVENUES, LOSS OF OPERATION TIME, WASTED MANAGEMENT TIME, LOSS OF GOODWILL OR REPUTATION, IN EACH CASE WHETHER CAUSED DIRECTLY OR INDIRECTLY, OR TO GIVE AN ACCOUNT OF PROFITS TO COMPANY OR ANY THIRD PARTY, OR FOR ANY INDIRECT, , DAMAGE, COST OR EXPENSE WHATSOEVER AND WHETHER OR NOT ADAPTA STUDIO HAS BEEN ADVISED OF THEIR POSSIBILITY.
10.3 Limitations Generally. EXCEPT TO THE EXTENT OF SUCH LIABILITY AS CANNOT BE EXCLUDED BY LAW, THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. EACH OF THE PARTIES ACKNOWLEDGES THAT IT UNDERSTANDS THE LEGAL AND ECONOMIC RAMIFICATIONS OF THE FOREGOING LIMITATIONS, AND THAT THE FOREGOING LIMITATIONS FORM AN ESSENTIAL PART OF THE AGREEMENT OF THE PARTIES.
10.4 Time Limit. No action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after that party knew or should have known of the event which gave rise to the cause of action.
- TERM; TERMINATION.
11.1 Term. The term of this Agreement will commence on when the I ACCEPT button is used and will continue for 1 year.
11.2 Termination for Cause. A party may terminate this Agreement immediately if the other party commits any material breach and fails to cure such default within thirty (30) days after written notice thereof from the non-breaching party; or (ii) the other party enters bankruptcy proceedings, becomes insolvent, or otherwise becomes generally unable to meet its obligations under this Agreement.
11.3. Termination for Cause: Company Customers. In the event that Company becomes aware of a material breach committed by a Company Customer or an End User of a Company Customer, Company shall immediately provide notice to such Company Customer, copying ADAPTA Studio. If Company Customer fails to cure such default within thirty (30) days after written notice thereof, Company shall terminate all rights granted to such Company Customer with respect to the Services, unless otherwise agreed in writing by ADAPTA Studio. Any breach by a Company Customer shall be deemed to be a breach by Company as if such action or omission was taken by Company.
11.4 Effect of Termination. When the Agreement expires or terminates for any reason:
(a) Company’s right to access and use the Services and to provide such right to Company Customers will cease immediately;
(b) ADAPTA Studio will provide Company with access to, and the ability to export, Company Data provided in connection with the Agreement. Company may request that ADAPTA Studio conduct a mass export of Company Data, and ADAPTA Studio agrees to provide such export service at its then current rates on a time and materials basis. Other than as described in this Section ADAPTA Studio has no obligation to continue to hold, export or return Company Data. ADAPTA Studio will have no liability for deletion of Company Data so long as it complies with this Section 11.4;
(c) All Confidential Information of one party in the possession of the other provided in connection with the Agreement shall be promptly destroyed (or, at the other party’s written instruction, returned); and
(d) The notification by either party of its intent to terminate this Agreement does not relieve either party of any obligations that have accrued on or before the date on which termination becomes effective.
12.1 Generally. ADAPTA Studio may suspend Company’s, a Company Customer’s or any End User’s right to access or use any portion or all of the Services and remove the applicable Company Data immediately if:
(a) ADAPTA Studio determines that Company, Company Customer or an End User of the Services (i) poses a security risk to or may materially harm the Services or any third party; (ii) may adversely impact the services, systems or content of any other ADAPTA Studio customer; or (iii) may subject ADAPTA Studio, its Affiliates or any third party to liability;
(b) Company, Company Customer or any End User violates the AUP as provided in Section 3.4;
(c) Company has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding;
(d) ADAPTA Studio’s rights with respect to any Third Party Component, are terminated or suspended for any reason; or
(e) ADAPTA Studio is otherwise required by Law to do so.
ADAPTA Studio will, where not prohibited by Law and reasonable under the circumstances, provide Company with prior notice of any such suspension or discontinuation of Services and an opportunity to take steps to avoid any such suspension. Any suspension shall apply to the minimum necessary portion of the Services and only be in effect for as long as reasonably necessary to address the issues giving rise to the suspension.
13.1 In connection with this Agreement, each of the parties has disclosed and may continue to disclose to the other party information that relates to the disclosing party’s business operations, financial condition, customers, products, services or technical knowledge. Except as otherwise specifically agreed in writing by the parties, ADAPTA Studio and Company each agree that (a) all information communicated to the receiving party by the disclosing party and identified in advance as confidential or that would be understood to be confidential by a reasonable person under the circumstances, whether before or after the Effective Date; (b) all information identified in advance as confidential or that would be understood to be confidential by a reasonable person under the circumstances to which it has access in connection with the Services, whether before or after the Effective Date; and (c) the terms and conditions of this Agreement (collectively, the “Confidential Information”), will be and will be deemed to have been received in confidence and will be used only for purposes of this Agreement. For purposes of this Agreement, ADAPTA Studio Confidential Information shall include, without limitation, any knowledge or information comprising or relating to any technical or non-technical data, algorithms, formulae, patterns, compilations, computer programs (including the Services, Software, and Documentation and all pricing terms related thereto), devices, methods, trade secrets, know-how, techniques, drawings, designs, processes, procedures, improvements, models, manuals, financial data, and other confidential business information, documents, manuals and data, whether written, machine reproducible, visual or oral, relating to the Services, the design, structure, logic and algorithms of the Services, its interactions and the programming techniques employed therewith, or the affairs of ADAPTA Studio and its owners, officers, employees and agents, which are not generally known to the public through legitimate origins. Company further acknowledges and agrees that the Services contain valuable proprietary and confidential information of ADAPTA Studio and includes, without limitation, intellectual property rights such as trade secrets, copyrightable works, and/or inventions for which a patent has been or may be applied
for or issued. Notwithstanding the foregoing, the term “Confidential Information” does not include any Personal Information and the terms of this Section 13 and other provisions of this Agreement generally applicable to Confidential Information will not be deemed to apply to Personal Information unless specifically stated otherwise.
13.2 This Section 13 will not apply to any particular information that either party can demonstrate: (a) was, at the time of disclosure to it, in the public domain; (b) was after disclosure to it, is published or otherwise becomes part of the public domain through no fault of the receiving party; (c) was in the possession of the receiving party at the time of disclosure to it and was not the subject of a pre-existing confidentiality obligation; (d) was received after disclosure to it from a third party who had a lawful right to disclose such information (without corresponding confidentiality obligations) to it; or (e) was independently developed by the receiving party without use of the Confidential Information of the disclosing party. In addition, the receiving party will not be considered to have breached its obligations under this Section 13 for disclosing Confidential Information of the disclosing party to the extent required to satisfy any legal requirement of a competent governmental or regulatory authority, provided that promptly upon receiving any such request and to the extent that it may legally do so, the receiving party: (i) advises the disclosing party prior to making such disclosure in order that the disclosing party may object to such disclosure, take action to require confidential treatment of the Confidential Information, or (subject to applicable law) take such other action as it considers appropriate to protect the Confidential Information and; (ii) takes actions necessary to minimize any disclosure to only that necessary to satisfy any legal requirement of a competent governmental or regulatory authority (including through redaction of sensitive commercial information, including key terms of this Agreement, or otherwise). If requested by the disclosing party, the receiving party will cooperate with the disclosing party in enforcing the confidentiality of its Confidential Information and the disclosing party shall reimburse the receiving party for all reasonable costs and expenses (including legal fees) incurred in providing such cooperation. ADAPTA Studio will not act as an expert witness or otherwise provide litigation support services as part of the Services.
13.3 Subject to the other terms of this Agreement, each party agrees that it will: (a) maintain the confidentiality of the other party’s Confidential information, (b) except as set forth in Section 13.4, not disclose, publish or communicate the other party’s Confidential Information to any third party, and (c) use and disclose the other party’s Confidential Information only for purposes of the parties’ business relationship with each other as contemplated by this Agreement. Each party agrees: (i) to take reasonable steps to protect the other’s Confidential Information, provided that these steps must be at least as protective as those the party takes to protect its own Confidential Information of similar nature, but in any event no less than a reasonable standard of care, (ii) to notify the other promptly upon discovery of any unauthorized use or disclosure of Confidential Information, and (iii) to cooperate with the other to help regain control of the Confidential Information and prevent further unauthorized use or disclosure of it.
13.4 Each party may disclose the other party’s Confidential Information to its employees, contractors, agents, and advisors who: (a) have a need to know it for purposes contemplated by this Agreement, and (b) are legally bound to protect the Confidential Information on terms no less protective than the terms with this Agreement. Furthermore, each End User provided access to the Services or Confidential Information of ADAPTA Studio by Company, including without limitation, employees and agents of Company, shall be advised by Company of the confidential nature of the Services and Documentation or such other Confidential Information and shall be party to a confidentiality agreement with Company that protects ADAPTA Studio’s Confidential Information in a manner consistent with Company’s obligations under this Agreement and Company shall minimize the scope of such access, including without limitation, summarizing, redacting or otherwise preparing abstracts of such ADAPTA Studio Confidential Information where practicable.
13.5 Neither party will (a) make any use or copies of the Confidential Information of the other except as contemplated by this Agreement; or (b) acquire any right in or assert any lien against the Confidential Information of the other; or (c) sell, assign, lease or otherwise commercially exploit the Confidential
Information of the other party. Confidential Information shall remain the sole property of the disclosing party. The disclosing party may, at any time including on termination or expiration of this Agreement, request the receiving party to return, destroy or delete (and confirm the destruction or deletion of the same) as instructed (in such a manner that it cannot be recovered) all Confidential Information of the disclosing party in the receiving party’s possession or control. Notwithstanding the foregoing, each party may retain all copies of Confidential Information that are embedded in archival backups or if required by law.
- PERSONAL INFORMATION PROTECTION AND COMPANY DATA
14.2 Data Privacy Laws. Company will comply with all applicable Data Privacy Laws, including all Data Privacy Laws that govern Company’s provision of Personal Information to ADAPTA Studio so that ADAPTA Studio may Process the Company Personal Information as contemplated by this Agreement. ADAPTA Studio will comply with all obligations under the Data Privacy Laws that are applicable to ADAPTA Studio in its provision of the Services as a data processor. .
14.3 Roles of the Parties and Compliance with Data Privacy Laws. As between Company and ADAPTA Studio, Company shall be the principle or data controller and ADAPTA Studio shall be the agent or data processor with respect to the Processing of all Company Personal Information. The Parties shall comply with their respective obligations as the principal (controller) and agent (data processor) under all applicable Data Privacy Laws. The parties acknowledge that, with respect to all Company Personal Information controlled by Company and/or Processed by ADAPTA Studio for the purpose of providing the Services under this Agreement:
(a) Company shall determine the scope, purposes and manner for which such Company Personal Information shall be Processed by ADAPTA Studio as permitted under the Data Privacy Laws;
(b) Company shall evaluate whether the design characteristics of the Services to be provided by ADAPTA Studio meet the Company’s regulatory requirements in respect of Data Privacy Laws, and may propose any modifications to the Services that Company believes are necessary in order for it to meet such requirements. Use of the Services by Company will be deemed acceptance and validation that the design characteristics meet Company’s requirements.
(c) Company shall be solely responsible for determining compliance with Data Privacy Laws and ADAPTA Studio shall not be required to monitor or advise on the Data Privacy Laws;
(d) In the event of any change to (including changes in interpretation of) a Data Privacy Law which requires a change to all or any part of the Service or a method of delivery of such Service in use by ADAPTA Studio prior to such change, the parties shall make appropriate adjustments to the terms of the Agreement and the Service as mutually agreed in writing, to the extent that changes to the Services are reasonably feasible and practicable;
(e) ADAPTA Studio will not disclose Company Personal Information to any third party except: (i) to an ADAPTA Studio subcontractor; (ii) as reasonably required by applicable Laws, provided that ADAPTA Studio complies with the notification procedure set forth in Section 13.2; (iii) as required by this Agreement or with Company’s written consent; and/or (iv) as necessary for ADAPTA Studio to establish, defend or exercise its legal rights under this Agreement and applicable Laws;
(f) Where, in connection with this Agreement, ADAPTA Studio agrees to Process Company Personal Information on behalf of Company, ADAPTA Studio shall:
(i) only Process Company Personal Information to the extent reasonably necessary for the performance of the Agreement and in accordance with the written instructions of Company;
(ii) implement and maintain commercially reasonable technical and organizational measures to protect Company Personal Information against accidental, unlawful, or unauthorized destruction, loss, alteration, disclosure or access;
(iii) take reasonable steps to ensure the reliability of its staff who have access to Company Personal Information and to ensure that such personnel are aware of their responsibilities under the Data Privacy Laws;
(iv) not disclose Company Personal Information to any person except as required or permitted by this Agreement or with Company’s written consent;
(v) provide Company with such information as Company may reasonably require from time to time to establish ADAPTA Studio’s compliance with the obligations relating to data security contained in applicable Laws and regulations and ADAPTA Studio’s security and data protection policies and procedures; and
(vi) permit Company, or its duly authorized representative, with reasonable prior notice, to inspect or audit ADAPTA Studio’s data processing activities under this Agreement to verify that they are carried out in compliance with this Agreement and any applicable Laws and regulations and ADAPTA Studio’s security and data protection policies and procedures; provided however, such rights do not extend to third-party infrastructure or cloud computing providers that ADAPTA Studio may utilize as subcontractors under this Agreement.
14.4 Subcontractors. ADAPTA Studio will include in any contract with subcontractor(s) who may process Company Data, whether directly or indirectly on behalf of Company, provisions no less protective of Company Data and Company Personal Information than those in this Agreement.
14.5 Use of Company Data. ADAPTA Studio may use and reproduce Company Data at the direction of Company (such direction taking the form of the terms of this Agreement) for the limited purposes of providing, operating, and maintaining the Services provided to Company. Company will secure for ADAPTA Studio the right to use and reproduce Company Data, including any Personal Information therein solely to the extent necessary to provide the Services to Company, without creating any obligations for ADAPTA Studio beyond those set forth in this Agreement. ADAPTA Studio may use usage patterns, trends, and other statistical data derived from use of the Services (but not Company Data itself) for the purposes of providing, operating, maintaining, or improving the Services and any ADAPTA Studio products and services used to deliver the Services.
14.6 ADAPTA Studio Security Policy. ADAPTA Studio has established and maintains a data security policy applicable to the Services (“Data Security Policy”). ADAPTA Studio will make the Data Security Policy available to Company employees and consultants on a confidential, need-to-know basis, along with other information including, without limitation, summaries of audit reports pertinent to the services being provided to Company, as reasonably requested by Company regarding ADAPTA Studio’s security practices and policies.
14.7 Changes to ADAPTA Studio Security Policy. In the event that ADAPTA Studio makes any change to the Data Security Policy that ADAPTA Studio determines, in its reasonable discretion, is likely to have a material negative effect on the security of Company Data, ADAPTA Studio will notify Company of this fact at least ninety (90) days before such changes become effective, unless in ADAPTA Studio’s sole discretion it is necessary to make the change to the Data Security Policy effective in less than ninety (90) days in order to address: (a) any legal or regulatory issues; or (b) any urgent security or performance related issues, which in either case, ADAPTA Studio will provide Company as much advance notice as is reasonably practicable. Company acknowledges that, notwithstanding any security precautions, use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Services. Accordingly, ADAPTA Studio cannot and does not guarantee the privacy, security or authenticity of any information so transmitted over or stored in any system connected to the Internet. ADAPTA Studio is not responsible for back up of any Company Data.
- SECURITY INCIDENTS.
15.1 ADAPTA Studio shall maintain procedures designed to detect and respond to loss, misuse, or unauthorized acquisition of Company Personal Information while such data is in ADAPTA Studio’s custody or control. ADAPTA Studio shall promptly notify Company of a loss, unauthorized acquisition, or misuse of unencrypted Company Personal Information in ADAPTA Studio’s custody (each, a “Security Incident”) which ADAPTA Studio knows or reasonably suspects has occurred. ADAPTA Studio shall promptly make available to Company appropriate details of the Security Incident and shall use commercially reasonable efforts to investigate and preventing the recurrence of such Security Incident. The parties shall reasonably cooperate to remediate Security Incidents and prevent their recurrence. Company, in its sole discretion, shall determine whether and when to notify any individuals or persons (including governmental authorities) regarding any Security Incident. ADAPTA Studio, as determined in its sole discretion, shall comply with all applicable Laws to which it is subject with regard to Security Incidents..
15.2 Security Incidents will not include any of the following that results in no unauthorized access to Company Personal Information or to any systems storing Company Personal Information (without limitation): pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, packet sniffing (or other unauthorized access to traffic data that does not result in access beyond IP addresses or headers) or similar incidents. ADAPTA Studio’s obligation to report or respond to a Security Incident is not to be construed as an admission by ADAPTA Studio of any fault or liability with respect to the Security Incident.
- ADDITIONAL TERMS.
16.1 Notice. All notices under this Agreement must be in writing. The notice will be considered received: (a) when it is delivered to a party personally; (b) five (5) days after being received via registered letter with, return receipt requested; (c) when a courier service delivers it (with confirmation of delivery); or (d) when it is “faxed” to a party with a confirmation of delivery. Any notice by email will only be allowed in the particular sections of this Agreement that permits it. .
16.2 Governing Law. The laws of Italy shall govern the construction, validity and operation of this Agreement and the performance of all obligations hereunder
16.3 Dispute Resolution. Subject first to the following dispute resolution procedures, any dispute arising between the parties shall be settled exclusively by the ordinary courts having jurisdiction at ADAPTA Studio’s normal place of business. The parties agree that in the event of a dispute or alleged breach of this Agreement they will work together in good faith first, to resolve the matter internally within thirty (30) days by escalating it to higher levels of management.
16.4 Force Majeure. Except for payment obligations, neither party shall be liable to the other for non-performance or delay in performance caused by anything beyond its reasonable control, including without limitation, acts of God, acts or omissions of the other, acts of government, war, strikes, lockouts, pandemics, or embargoes (collectively, a “Force Majeure Event”). If either party is prevented or delayed in the performance of any of its obligations under this Agreement by a Force Majeure Event, that party shall immediately serve notice in writing on the other party specifying the nature and extent of the circumstances giving rise to the Force Majeure Event. The party claiming to be prevented or delayed in the performance of any of its obligations by result of Force Majeure Event shall use all reasonable endeavors to bring the Force Majeure Event to an end or find a solution whereby this Agreement may be otherwise performed. Company shall only be obligated to pay for Services that it receives in compliance with this Agreement during such Force Majeure Event.
16.5 Survival. The provisions of Sections, and any other sections which by their nature are intended to survive, shall survive the termination or expiration of this Agreement.
16.6 Mitigation. Each party has a duty to mitigate the damages and Losses that would otherwise be recoverable from the other party pursuant to this Agreement (including under any indemnity) by taking appropriate and commercially reasonable actions to reduce or limit the amount of such damages or amounts.
16.8 Construction; Interpretation; Language. The section and paragraph headings contained herein are for convenience of reference only, shall have no effect upon the construction or interpretation of this Agreement or any part thereof, and shall not be considered as substantive parts of this Agreement. The use of the singular or plural form shall include the other form and the use of the masculine, feminine or neuter gender shall include the other genders. In construing or interpreting this Agreement, the word “including” shall not be limiting and the word “hereunder” means under this Agreement. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party. In the event of an inconsistency between the Agreement and the Order, the terms of this Agreement shall control and shall be followed under such circumstances. The parties hereto have required that this Agreement and all documents relating hereto be drawn-up in English. The parties agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter shall not apply to this Agreement.
16.10 Complete Agreement; Modification; Waiver. This Agreement is the entire intent and understanding of the parties hereto, and supersedes all prior agreements, understandings and communications, whether oral or written, with respect to the subject matter hereof. Except as otherwise provided herein to the contrary, this Agreement, including this Section 16.10, may be changed, modified or expanded only by a writing signed by authorized representatives of both parties with the sole exception of unilateral written notice-address changes. No waiver or modification of any right or remedy under this Agreement or of any provision hereof shall be effective unless it is stated in writing and signed by the parties. Failure, neglect or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed or deemed to be a waiver or release and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action. No effective waiver of any right, remedy or provision of this Agreement shall be deemed a waiver of any other or of the same right, remedy or provision at any other time.
16.11 Severability. Any provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective only to the extent of such invalidity or unenforceability and shall be severed from the balance of this Agreement without invalidating or affecting the remaining provisions of this Agreement in that or any other jurisdiction, which remaining provisions shall continue in full force and effect.
16.12 No Third Party Beneficiaries. Nothing contained in this Agreement is intended to confer upon any person (expressly including Company Customers) other than the parties hereto any rights, benefits or remedies of any kind or character whatsoever, and no person shall be deemed a third party beneficiary under or by reason of this Agreement. Company acknowledges that it is entering into this arrangement solely on the basis of the agreements and representations contained herein, and for its own purposes and not for the benefit of any third party.
16.14 Assignment. Company may not assign this Agreement.
16.15 ADAPTA Studio Audit Rights. ADAPTA Studio reserves the right, upon reasonable prior notice to Company and during normal business hours, to audit or to hire a third party to audit usage of the Software solely for the purpose of verifying Company’s and/or Company Customers’ compliance with this Agreement.
16.16 Existing Agreements. This Agreement is separate from any obligations, rights, or requirements contained in any existing master services agreement, professional services agreement, consulting services agreement, outsourcing agreement, or related agreements (“Existing Agreements”) between the parties. Any Existing Agreement will not apply to the products and services that are the subject of this Agreement, and this Agreement expressly overrides and conflicting statements in any Existing Agreement.