SUPPORT & MAINTENANCE CONTRACT
Boole Server owns a software (“Software”) for the management of data licensed to the Customer, by signing the relevant Contract. For the purposes of providing the relevant Maintenance and Ordinary and Extraordinary Assistance Service to Customers having signed a license for “Subscription On-Premises” Services, the Parties deem necessary and appropriate to sign this specific contract (“Contract”).
The parties agree and sign the provisions set forth below:
1. Support & Maintenance Services for “Subscription On-Premises” Services
This agreement regulates the provision of the Support & Maintenance Services to Clients having signed a license as follows:
Subscription On-Premises, IT infrastructure at Customer’s premises, annual fee for activation and use of a BooleBox License in a service type including the purchased Apps.
2. Description, annual fee and date of effect: Definitions
The Support & Maintenance Services, are established according to an annual price list.
The Support & Maintenance Services have duration corresponding to one calendar year starting from the subscription of a license for the Services.
For the purposes of identifying the persons or entities involved in the Contract, it is defined:
– Independent Software Vendor or ISV: who (natural person, entity, company) owns the Software;
– Supplier: who (entity, company) is entitled to market and/or provide the Software Support & Maintenance services;
– Customer: whom (natural person, entity, company) the Software has been licensed to and requests and benefits from the advice and/or purchases (or obtains on other grounds) the goods marketed by the Supplier.
3. Maintenance and Ordinary Support Service
The following Supplier’s obligations are included in the Maintenance and Ordinary Assistance Service:
making available the standard software products variations, developed by the Manufacturer, made necessary by new laws and regulations;
making available technical improvements, developed by the Manufacturer, made to standard software products;
making available the corrections made by the Manufacturer with regard to mistakes found in software products, even after the expiry of the warranty terms;
The Supplier provides an online Support service to the Customer assisted with a regular Maintenance contract.
The Customer may use this service for any clarification on the use of the standard programs installed by the Supplier and for which the Maintenance contract is in place. The programs specifically created, modified and/or customized upon Customer request are excluded from the online assistance service, when not expressly provided. When, in the opinion of the personnel contacted, the problem submitted by the Customer cannot be resolved through the online Assistance Service, an Extraordinary Maintenance intervention will take place (electronic connection or on-site intervention). The online Assistance Service, provided during the normal working hours by the Supplier in favor of the Customer for whom the Maintenance contract is in force, does not give rise to any specific charge.
4. Maintenance and Extraordinary Assistance Service
The Maintenance and Extraordinary Assistance Service include the services provided upon Customer’s request for the purposes of:
a. eliminating the consequences of mistakes occurred in the equipment and/or software products use covered by this contract;
b. makings changes to the installed programs;
c. installing and setting up new standard software versions released by the Manufacturer at the Customer’s premises;
d. adapting the specific programs developed/customized upon Customer’s request, to new standard software versions;
e. carrying out any other intervention that is necessary and/or useful and that does not fall within those ones provided for in the previous point.
The above maintenance and extraordinary services are subject to the agreed fees that the customer is required to ask in advance to the supplier for each intervention.
5. Intervention conditions
The Support & Maintenance Service is performed by the Supplier provided that the Software licensed for use has not been subject to any modification or alteration carried out by the Customer.
Any intervention carried out independently by the Customer, or failure to sign this Agreement, clears the Supplier from any responsibility concerning the proper functioning of the installed software.
It is Supplier’s duty to carry out maintenance operations as quickly as possible.
In the event that the intervention request originates from a “total standstill” situation, any intervention shall start, whether there is no hindrance beyond the Supplier’s control, within the second business day following the Customer’s request.
The Support & Maintenance Service is granted exclusively during the working hours provided for by the employment Contract applied by the Supplier. Any exception may be subject to separate negotiations with the Customer.
The Supplier has the right to activate an online update service.
6. Access to premises
The Customer shall grant the Supplier’s personnel access to the premises where the equipment is installed, in order to carry out the operations provided for by the contract and/or the necessary checks.
The Customer undertakes to expressly declare to the Supplier, at the time of the intervention request, and pursuant to Article 26 of Legislative Decree no. 81 of April 9, 2008 and subsequent amendments and additions, the presence or the absence of any specific risks in the premises destined to the installation of the equipment as well as the preventive and emergency measures taken in relation to his/its activities.
7. Ordinary maintenance fee
For the Ordinary Maintenance Service, the Customer shall pay the Supplier the annual fee set forth by article 1 of this Contract.
The fee shall be applied from the date mentioned in Article 2 and its effect is not linked to the effective activation of all the acquired software modules, but exclusively to their delivery.
The fee determined in this way shall be applicable over the duration of the Contract as set forth by article 2.
8. Extraordinary Assistance Service rates
The interventions carried out as part of the Extraordinary Assistance Service shall be invoiced to the Customer on an hourly basis.
The Customers are required to ask the Supplier in advance each fee applicable to the interventions. For each extraordinary assistance activity carried out at the Supplier’s premises, the price list rate (hour / fraction of an hour) shall be charged to the customer. At the end of any assistance activity carried out at the Supplier’s premises, the Customer will be notified by e-mail with regard to the activity carried out which, in the absence of any objection to communicate to the Supplier within 8 (eight) days from receipt of the e-mail, shall be invoiced within the end of the current month.
9. Methods of payment
The methods of payment provided for are the following:
– Annual fee related to the Maintenance and Ordinary Assistance Service: upon receipt of an advanced annual invoice, expiring 30 days from the invoice date;
– Maintenance and Extraordinary Assistance Service – related performances: upon receipt of a deferred monthly invoice, in the event of “forfait” and/or final payments, with an expiration of 30 days from the end month invoice date;
Whether it is not set forth otherwise, all payments shall be issued by bank transfer.
The Ordinary Maintenance Service does not include any variation to be made to specific programs created, modified and/or customized upon Customer’s request, become necessary due to the release of new versions of standard software developed by the Manufacturer. The Ordinary Maintenance does not include updates that, in the Manufacturer’s opinion, involve the modification of record routes or the creation of new archives or having a marginal impact on the procedures.
The Maintenance Service does not include the following ancillary services:
a. Training courses, instruction and updates of the Customer’s personnel;
b. Teleassistance service.
Furthermore, the Maintenance Service does not include any intervention caused by:
a. Accidental causes, negligence or misuse, acts of vandalism, calamity;
b. Damages caused by dysfunctions of the electrical system or the earthing system plant;
c. Thunders and floodings;
d. Unsuitable ancillary products;
e. Changes and links not made by the Supplier;
f. Any modification to the original configuration neither authorized nor agreed with the Supplier;
g. Parts and/or devices not supplied and/or not installed by the Supplier;
h. Attacks and intrusions into the information system operated by third parties via the telematic network.
i. The rescue or restoration interventions, even if requested following malfunctions or damages to the equipment, concerning magnetic supports containing data, with regard to which it is Customer’s responsibility to keep the appropriate security copies and to know the procedures to carry out for the reconstruction of the original content, on the basis of the aforementioned copies.
11. Defaults and suspension of the service
In case of failure to pay the fee as set forth by article 2 of this contract, the Supplier is entitled to suspend, with immediate effect and without notice, the Software Support & Maintenance Service subject of this contract. The service shall be immediately reactivated in the event that the Customer proceeds to the payment of the fee. In case of non-fulfillment of the obligations undertaken under this contract by the Supplier, the Customer will be entitled to terminate the present contract upon written notice to send by registered letter.
At the expiry of the license fee for the Subscription On-Premises Service, the Support & Maintenance services will be equally blocked and could be renewed concurrently with the renewal of a Subscription On-Premises license.
13. Loss and damage risks
The Customer is responsible for the procedures management and for saving (duplication) the programs on magnetic media, archives and data on the devices and ensures that the procedures management has been correctly performed before the Assistance intervention takes place, by relieving the Supplier of liability for all risks of loss or damage to the programs, archives and/or data stored in the devices at the intervention’s time.
The Customer also relieves the Supplier of all risks of loss and damage to discs, minidisks, devices, cards, links and modifications not removed from the products submitted to the Maintenance Service.
14. Force majeure
The term “FORCE MAJEURE” is understood by either party as any unpredictable, inevitable and beyond the party’s control action or occurrence, which delays, prevents or suspends temporarily or permanently the performance of the contract and/or of all its obligations. In case of an event of force majeure, the parties shall meet to decide and take appropriate measures. The party who decides to invoke the force majeure shall notify the other party within fifteen (15) days by registered letter with acknowledgment of receipt, indicating the nature, the start date and the alleged end date of the event that caused the force majeure.
Failure to comply with these requirements shall trigger full and irrevocable liability of the defaulting party for all risks and consequences of the force majeure event. Either party shall not be liable to the other party for delays or failure to perform its duties due directly or indirectly to circumstances beyond its control (for instance unforeseeable circumstances, work suspension imposed by public authorities). In such cases, the interested Party’s representative shall notify the event promptly to the other party’s representative.
Pursuant to article 13 of Legislative Decree of June 30, 2003, no. 196 “personal data protection Code” (hereinafter “the Code”), the Supplier, with reference to personal data acquired or which will be acquired (e.g. biographical data, tax data, names data, accounting data etc.) with regard to contractual relationships occurred/occurring with the Customer or those which may occur in the future, informs that:
a. the data processing carried out by the Supplier will take place as to guarantee security and confidentiality and will be carried out also by electronic and/or automated means, for purposes concerning the performance of the obligations set forth by this contract, for checks and evaluations on the relationship’s results and trend, as well as on the risks connected to it (i.e. the truthfulness of the data provided, solvency even during the relationship, etc.), for legal obligations and/or public authorities regulations, for Supplier’s products-related promotional activities and for commercial and/or marketing purposes, also through the use of the Customer’s e-mail coordinates;
b. the provision of data is necessary, however any refusal to provide data could trigger difficulties with reference to the conclusion (e.g. the Customer’s identification data, the fiscal code, the VAT number, etc.), the performance and the management (i.e. for instance: data concerning Customer’s bank account, Customer’s activities, Customer’s Legal Representatives’ names and powers, the capital, financial or economic data etc.) of the Contract;
c. the data may be disclosed to specific persons in order to perform certain activities, including the data processing aimed at achieving the contractual purposes; to companies specialized in conferences organization activities, administration and telemarketing for the Supplier’s products promotion, to carry out specific activities, always related to the relationship’s fulfillment, by ways of outsourcing contracts, credit management and to all the people or entities with reference to which the disclosure is due under legal and/or contractual obligations. A list of such people and entities, periodically updated, shall be available at the company’s business place and may be sent upon simple request; the Client’s business name may be used through the Supplier’s website or through the press for the Supplier’s products and/or services promotion purposes. The personal data acquired may be disclosed, upon data subject’s explicit consent, to the entities which supply, in turn, the Supplier and may be transferred to their place of business in order to carry out market analysis, plan sales and disclosure processes with regard to the activities carried out by the indirect channel. These entities, by performing the personal data processing for the abovementioned purposes, therefore in a different way than the processing operations performed by the Supplier, act effectively as Data Controllers;
d. the data shall be disclosed to subsidiaries and/or to companies related to the Supplier exclusively for the abovementioned purposes and, where necessary, upon data subject’s consent;
e. the data shall be disclosed also to Public Administrations, Independent Auditors and to all the entities to which the disclosure is due by virtue of legal and/or contractual obligations;
f. the Data Controller and the entities charged to process the data and responsible fort the Contract’s management shall be allowed to know the Customer’s data;
g. the Customer may contact the Privacy Service provided by the Data Controller (e-mail….) in order to verify his/her/its data and have them supplemented, updated or corrected and/or to exercise the other rights set forth by article 7 of the Code. In particular the Customer may object, at any time, always by ways of the Privacy Service, to the processing of his/her/its email address coordinates for direct sales or marketing purposes;
The Data Controller is the Supplier, having its own place of business where abovementioned.
16. Jurisdiction and Applicable Law
For any dispute arising between the Parties regarding the interpretation and/or the performance of this Contract, the Court of Milan will be exclusively competent. The Contract is governed by Italian law.
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