Effective as of 13 May 2020
This Agreement (the “Agreement”) applies to BooleBox Business Customers. The Agreement is entered by and between Boole Server S.r.l., an Italian company, its parents and affiliates (collectively “Boole Server”, “we”, “us”, or “our”), and the party (“Customer”) in order to create and use a BooleBox account (“ Account”). This Agreement governs access to and use of the BooleBox Accounts, client software (“Software”) and services (together, the “Services”). Boole Server and Customer may be referred to collectively as the “parties,” or individually as a “party.” By clicking “I Agree” or otherwise using the Services, Customer agrees to this Agreement. If Customer agrees to this Agreement for the use of the Services by an organization, Customer is agreeing to this Agreement on behalf of that organization. In this case, any reference to Customer will be intended as referred to that organization. For anything not expressly regulated by this Agreement, the terms and conditions of the End-User Service & License Agreement, which constitute the general conditions (“General Conditions”) adopted by Boole Server s.r.l. with respect to the use of the Services and the Software shall apply.
1.1 Access to Services.
The Customer (or an authorized person if the Customer is an entity) will serve as the administrator of the Account (the “Administrator”). The Administrator will be permitted to assign the number of BooleBox “Apps” (each, a “ License”) which have been purchased according to this Agreement. Any party to whom a License has been granted shall be referred to herein as an “End User”. The End Users shall be authorized to access and use BooleBox Account, subject to and in accordance with the terms of this Agreement.
1.2 Facilities and Data Storage.
Boole Server will use industry standard protections to secure data stored by Customer in accordance with the Services (“Customer Data”). Customer understands and agrees that Boole Server may store, process, or transfer Customer Data at a location chosen at its sole discretion and that such location may be outside the country of Customer’s domicile. Customers will have the ability to create unique encryption keys (“Personal Keys”) for Customer Data within the Account. Boole Server will not have access to these Personal Keys, and will not store or maintain these Personal Keys. For the avoidance of doubt, the term “Customer Data” as used in this Agreement, and the term “Your Data” as used in the Terms of Service shall be read as the same term and shall have the same meaning throughout both documents.
1.3 Modifications to the Services.
Boole Server reserves the right to update the Services at any time, or add or subtract features from the Services at any time; provided, however, that if Boole Server makes any modifications to the Services which will materially affect Customer’s ability to use the Services, Boole Server will provide notification of such changes by sending notice to the email address associated with Customer’s Account.
1.4 Software and License.
Use of some features of the Services may require Customer to download Software. Provided that Customer remains in compliance with the terms of this Agreement, we grant Customer a limited, non- exclusive, worldwide, non-transferrable, revocable license to use the Software, solely to the extent necessary to access the Services. Consequently, Customer hereby grants to Boole Server a limited, non-exclusive, worldwide, non-transferrable, revocable at any time license to copy, store and otherwise use the Customer Data solely to the extent necessary to provide the Services.
2. CUSTOMER OBLIGATIONS.
2.1 Compliance with Terms of Service
Customer is solely responsible for use of the Services by its End Users. Customers expressly agree to use the Services in accordance with the Terms of Service, the terms of which are incorporated herein by reference. Customer agrees to obtain from End Users any and all consents necessary to allow Boole Server to properly provide the Services. Article 1381 of the Italian Civil Code applies.
2.2 Customer Administration of Services.
The Administrator may assign Licenses, and all related Services, to End Users, at the Administrator’s discretion, in accordance with the number of Licenses purchased by the Customer. The Administrator may also at any time revoke Licenses from End Users to whom the Administrator has previously assigned them. In the event of a revocation of a License, the Customer acknowledges that the End User to whom such License was assigned will lose the benefit of the revoked License. Boole Server expressly disclaims any and all responsibility and liability related to the internal management or administration of the Account, and the assignment and revocation of Licenses, and Customer shall be solely responsible for any and all damages, and expressly assumes all liability, which does or may result from or in connection with same. In addition, Customer is solely responsible for: (i) maintaining the confidentiality of passwords and Personal Keys; (ii) managing the allocation of Licenses, and (iii) ensuring that the use of the Services by End Users complies with this Agreement and the End-User Service & License Agreement.
2.3 Unauthorized Use.
Customer will prevent any and all unauthorized access to or use of the Services. The Services may not be used by anyone under the age of 13. Customer will ensure it will not allow any person under the age of 13 to use or access the services. In the event that Customer does allow a person under the age of 13 to access the services, Customer will promptly notify us of such unauthorized access, and will take any and all steps necessary to stop and/or prevent such access.
2.4 Restricted Use.
Notwithstanding anything to the contrary in this Agreement, Customer will not, and will not permit any End User or third party to: (a) lease, rent, sell, or resell the Services; (b) reverse engineer, decompile, modify, alter, tamper with, disassemble, or create any derivative works of any software used to provide the Services, (c) use the Services in such a matter that use of or failure of the Services could lead to physical damage, death, or injury to a Customer, End User, or third party, and (d) use or access the Services in any manner which expressly violates the Use Policy found in the Terms of Service.
2.5 Compliance with Laws.
Customer is responsible for complying with any and all laws governing its use of the Services, and ensuring that End Users comply with same. Article 1381 of the Italian Civil Code applies.
2.6 Third Party Requests.
Customer is solely responsible for responding to any and all “Third Party Requests”. For the avoidance of doubt, the term “Third Party Requests” shall mean a request from third party for information related to use of the Services by a Customer or End User. If we receive such Third Party Requests, we shall transmit such requests to the Customer within a commercially reasonable time. If a Customer fails to respond to a Third Party Request, we may only respond to such request to the extent allowed by this Agreement.
3. THIRD PARTY SERVICES.
We may, at our sole discretion, use third party software to provide the Services. In this event, Customer accepts and acknowledges that Customer’s access to the Services may be conditioned on the acceptance of terms and conditions advanced by said third party. Customer also accepts and acknowledges that such third party terms and conditions shall not be binding on this Agreement in the event that such terms and conditions conflict with a provision of this Agreement. Accordingly, Boole Server (a) expressly disclaims any and all liability for any and all acts and omissions of a third party, and (b) Boole Server does not warrant, guarantee, or support the functionality of any software provided by a third party, except as expressly stated by Boole Server in writing .
4.1 Suspension of Accounts for breaches by Customers or End Users.
If an End User or Customer breaches this Agreement, including the provisions of the Terms of Service, or uses the Services in a manner which Boole Server, at its sole discretion, reasonably believes will cause it to incur liability, then Boole Server may (a) immediately suspend the Customer’s use of the Services as a whole, or the use of the Services by a specific End User or End Users, or (b) at Boole Server’s discretion, notify Customer of the violation, and offer Customer the opportunity to cure the violation within a reasonable period of time before suspending the Customer’s use of the Services, or the use of the Services by a specific End User. For the avoidance of doubt, “reasonable period of time” shall be made on a case-by-case basis at the sole discretion of Boole Server. Further, in the event of a “Security Emergency”, Boole Server will immediately suspend the Customer’s and all End Users’ use of the Services, until the Security Emergency has been resolved to the satisfaction of Boole Server. For the avoidance of doubt, the term “Security Emergency” shall mean (i) use of the Services which actually disrupts or damages or may disrupt or damage the Services, other Customers’ use of the Services, or the infrastructure used to provide the Services, and (ii) unauthorized third-party access to the Services.
4.2 Suspension for Non-Payment of Fees.
If Customer fails to pay the amounts due, the Customer’s Account will be disabled. In such event, we shall maintain Customer Data in the Account for twelve (12) months. If Customer wishes to restore their account during such twelve (12) months period, Customer may do so by paying (i) the amounts due for the use of the Account during the non-payment period, and (ii) the amounts due for the month in which the Account is being re-activated. If Customer has not restored its Account at the end of such twelve (12) months period, Customer’s Account shall be terminated and we may delete all Customer Data in such Account.
5. INTELLECTUAL PROPERTY RIGHTS.
5.1 Boole Server Intellectual Property Rights.
Except as expressly provided in this Agreement and in the General Conditions, this Agreement does not grant Customer any rights to intellectual property which is the sole and exclusive property of Boole Server (“Boole Server IP”). For the avoidance of doubt, the term “Boole Server IP” means any and all protection we have or may have with respect to the Software and Services under the laws of patent, trademark, trade dress, trade secret, copyright, and moral rights as such may come to exist, now or in the future, according to the laws of Italy or foreign nations.
5.2 Customer Intellectual Property Rights.
Except as expressly provided in this Agreement, and as reasonably necessary to provide the Services, nothing in this agreement grants us any intellectual property rights in and to the Customer Data. Customer expressly agrees to allow third parties designated by Boole Server the same intellectual property rights as Boole Server to the extent such is necessary to offer the Services.
5.3 Use of Customer Suggestions.
We may, from time to time, and in our sole discretion, solicit suggestions, comments, and feedback from Customers and End Users (“Customer Suggestions”). The Customer expressly agrees to allow us to implement Customer Suggestions free and clear of any claims to any and all intellectual property associated with or embodied in such Customer Suggestions provided that we always strive to fully comply with all Intellectual Property Laws.
5.4 Customer List.
Customer expressly agrees to allow us to include Customer’s name, likeness, and/or logo in a list of our customers published on www.boolebox.com or in other marketing, advertising or promotional materials.
6. FEES AND PAYMENTS.
(a) Annual Fee. Annual fee for BooleBox Accounts are as described within the offer signed during the purchase phase. No refunds of any annual fee shall be issued, except as required by law. In the event of any change to BooleBox’s pricing (which shall not include the expiration of free trials or the like), such changes will only apply to Accounts created after the new pricing has gone into effect. (b) Additional End Users. Customer may add additional Licenses to allocate to End Users at any time. Customer agrees to pay to Boole Server an additional fee for any additional License. However, and for the avoidance of doubt, if an additional License is revoked, the Customer shall be responsible for the full License fee for the period in which such termination occurred.
6.2 Payment Authorization.
Customer is responsible for furnishing us with complete and accurate billing information, and for maintaining such information in the event of any change thereto. Customer agrees to pay and authorizes us to charge, via bank transmittal, all fees due under this Agreement.
6.3 Billing Period.
Customers shall be charged at the beginning of each Billing Period. Each Billing Period shall be twelve (12) months, and shall be measured from the date a Customer begins using a BooleBox Account. For the avoidance of doubt, the parties agree that Coordinated Universal Time (UTC) apply in determining dates/times under this Agreement.
6.5 Trial. We allow you to get a free trial of thirty (30) days in order to enable you to experience our Service before purchasing an Account according to the terms of this Agreement. At the end of the trial, if you do not purchase an Account, we will suspend your Account in full or in part. In such event, we shall maintain your Data for twelve (12) months and during this period you will be able to restore your Account at any time and have access to your Data by purchasing an Account according to the terms of this Agreement. Failing to do so, at the end of the twelve months period we may delete all your Data in such Account.
Customer is responsible for paying any and all taxes due under this Agreement. We will charge tax when required to do so. If Customer must withhold any taxes, Customer must notify us in writing and provide us with an official tax receipt.
7. TERM AND TERMINATION.
7.1 Term. This Agreement has a minumum term of twelve (12) months starting from the purchase of the Account by Customer and shall be tacitly and automatically renewed and extended for equal periods of twelve months unless terminated by either party by written notice given to the other at least thirty (30) days prior to its term.
7.2 Conditional Termination.
Either party may terminate this Agreement before its term if (a) a party has materially breached this Agreement, the non-breaching party has provided written notice of such breach, and the non- breaching party has failed to cure such breach within thirty (30) days of transmission of such notice (unless an alternate cure period has otherwise been provided hereunder), (b) a party ceases to operate in the normal course of business or becomes the subject of insolvency proceedings and such insolvency proceedings are not resolved within ninety (90) days, and (c) in connection with a merger, acquisition, or sale of all or substantially all of a party’s assets and upon receipt of thirty (30) days’ written notice of such transaction.
7.3 Termination by Customer.
Customer may terminate this Agreement at any time by providing written notice to Boole Server at least thirty (30) days prior to the final day of each Billing Period. If Customer terminates this Agreement before the end of a Billing Period, Boole Server shall continue to provide the Services, and Customer and all End Users may continue to use the Services, until the end of such Billing Period.
7.4 Effect of Termination.
In the event that this Agreement is terminated: (a) except as expressly provided within this Section 7.4, the rights given to Customer by Boole Server under this Agreement shall cease immediately, (b) Boole Server shall provide Customer free access to its Account for five 5) days to allow Customer to download or otherwise export Customer Data, and (c) after a twelve (12) months Boole Server may delete any Customer Data associated with the Customer’s Account. Notwithstanding the foregoing, the provisions of Sections 2.4, 2.5, 2.6, 5, , 8, 9, 10, and 11 shall survive the termination of this Agreement, and any other terms of this Agreement shall survive if, by their nature, they would reasonably be deemed to survive termination of this Agreement.
8.1 Indemnification by Customer.
Customer shall defend, indemnify and hold harmless Boole Server, its officers, directors, employees, agents and affiliates from any claim, suit, cause of action, proceeding, liability, or damage (including settlement costs, and reasonable attorneys’ fees) involving: (a) Customer Data, including without limitation any infringement of any rights of a third party in connection with same, and/or (b) Customer’s and/or any End User’s use of the Service in violation of this Agreement, including, but not limited to, use of the Service to infringe on the intellectual property rights of Boole Server or a third party.
8.2 Indemnification by Boole Server.
Boole Server shall defend, indemnify and hold harmless Customer, its End Users, its officers, directors, employees, agents and affiliates (collectively “Indemnitees”) from any claim, suit, action or demand (“Claim”) that the Service infringes upon any applicable patent, copyright or trademark right of a third party, subject to a court of competent jurisdiction, in a judgment that has become final and that is no longer subject to appeal or review, determining that such an infringement has in fact occurred, or the applicable parties having executed a settlement agreement whereby the applicable third party plaintiff shall be entitled to a monetary settlement payment. The foregoing shall be expressly subject to Customer’s indemnification obligations as set forth above, and shall not apply in the event such Claim arose directly as a result of Customer’s use of the Service.
8.3 Notice and Claim Control.
The party entitled to indemnification (the “Indemnified Party”) hereunder will (a) promptly notify the other party in writing of the Claim, (b) grant the other party sole control of the defense and settlement of the Claim, and (c) reasonably assist the other party in defending the Claim. Notwithstanding the foregoing, any settlement requiring the Indemnified Party to admit liability or wrongdoing shall require the written consent of the Indemnified Party. The Indemnified Party is permitted under this Section 8 to join in the defense with its own counsel at its own expense.
9. LIMITATION OF LIABILITY AND WARRANTIES.
BOOLE SERVER PROVIDES THE SERVICES “AS IS” AND ON AN “AS AVAILABLE” BASIS. ACCORDINGLY, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BOOLESERVER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS.
9.2 Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL BOOLE SERVER, ITS AFFILIATES, SUPPLIERS OR DISTRIBUTORS BE LIABLE FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OR DESTRUCTION OF DATA, LOSS OF ACTUAL OR ANTICIPATED PROFITS OR BENEFITS, LOSS OF PERSONAL KEYS (AS SUCH TERM IS DEFINED IN THE TERMS OF SERVICE), OR THE COST OF PROCURING A REPLACEMENT SERVICES OR SOLUTIONS, WHETHER OR NOT BOOLEBOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING IN ANY WAY OUT OF THIS AGREEMENT OR IN CONNECTION WITH THE SERVICES, OR ANY UNDERTAKING OR PERFORMANCE THAT MAY BE PROMISED, PERFORMED, OR EXECUTED TO IMPLEMENT THESE TERMS.
9.3 Limitation of Damages.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER AGREES THAT BOOLE SERVER’S LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF (A) FIFTY THOUSAND EUROS (€50,000 EUR) OR (B) THE ACTUAL SUM CUSTOMER HAS PAID TO BOOLESERVER IN THE TWELVE (12) MONTHS PRECEDING THE INITIATION OF ACTION AGAINST BOOLE SERVER. In some States the limitations of this paragraph are not recognized, therefore these may not apply to the Customer.
10. DISPUTES AND DISPUTE RESOLUTION.
10.1 Initial Dispute Resolution.
BooleBox wishes to resolve disputes without formal legal claims. Accordingly, Customer agrees to try to resolve any and all disputes arising under this Agreement informally by contacting email@example.com before filing a Claim or lawsuit against BooleBox. BooleBox will try to resolve the dispute informally by contacting Customer via email. If a dispute is not resolved within thirty (30) days of submission, party may begin formal legal action, subject to this Agreement.
10.2 Choice of Law.
All disputes arising out of or in relation to this Agreement shall be settled in accordance with its provisions, otherwise in accordance with the substantive law in force in the Republic of Italy without reference to its conflict of law provisions. Parties agree and accept the exclusive jurisdiction of the Court of Milan.
11.1 Entire Agreement.
This Agreement constitute the entire agreement between Customer and Boole Server with respect to the subject matter thereof,and supersedes and replaces any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter thereof.
11.2. Waiver, Severability, and Assignment.
Any failure on the part of Boole Server to enforce a provision under this Agreement does not constitute waiver of any rights under this Agreement, including the right to take action at a later date. If any provision of this Agreement is found unenforceable, the remaining provisions of this Agreement will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. Customer may not assign any of its rights under this Agreement, and any such attempt will be null and void. Notwithstanding anything to the contrary herein, Boole Server may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services.
By using the Services, Customer consents to provide us with an e-mail address, which we shall use to provide Customer with any and all required notices under this Agreement. For the avoidance of doubt, any notices sent to Customer under this Agreement will be deemed received once they are sent by Boole Server. If Customer no longer consents to receiving notice by e-mail, Customer must terminate this Agreement.
In accordance with article 1341 of the Italian Civil Code, the Customer declares explicitly to accept, after having carefully read and understood the contents, one by one all the clauses listed above. Failure to accept them will prevent from formally reaching this Agreement.
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