Article 1 - Introduction and annexes
1.1 The premises and annexes form an integral and substantial part of this contract.
Article 2 - Object of the Contract
2.1 The Client will provide the Company with a description of the essential and distinctive elements that qualify the assignment of the assignment and the objectives it intends to pursue, so that the Company can proceed with the identification of the activities to be carried out in relation to the provisions of Article 1 of this contract.
2.2 The Company will undertake to perform, directly and / or through third parties, in favor of the Customer, who accepts, the Service / Services indicated / indicated in Article 1 of this contract.
2.3 During the period of effectiveness of this contract, the Customer may select one or more additional services that will be provided by the Company in accordance with the specific order form signed by the Customer, which will become an integral and substantial part of this contract.
Article 3 - Methods of execution of the Service
3.1 The Company will carry out the activities required for the Service / Services in complete autonomy of the business and with management at its own risk, observing the diligence required by the practice of the specific reference sector to which it refers and operating in accordance with the execution chosen by the Customer pursuant to Article 1, paragraph 2, of the Contract.
3.2 The Company's services for each Service may be performed, in whole or in part, by the Company itself and / or by one or more subcontractors, identified independently and at the discretion of the Company, pursuant to Article 13 of the General Conditions.
3.3 If the Service and / or all and / or some of the Services, object of the contract, must be, in whole or in part, carried out by the Company in relation to third parties, the Client will grant the person indicated in writing by the Company the necessary powers of attorney in name and on behalf or in its interest.
3.4 As part of the execution of the activities, the Company will provide the Customer with the information and / or data and / or supports relating to the Services provided if periodic checks and / or approvals by its corporate and / or management bodies are required.
3.5 As part of the execution of the Service / Services, if interventions are required to be carried out on the Client's tools (e.g. website, server), for each intervention the Company will provide the information relating to each intervention, operating procedures, execution times and indicative cost estimates. The Company will carry out each intervention only after written approval by the Customer of the cost estimate, which will be attached to the contract.
3.6 In case of cd. at sprint, the Company will carry out activities for a fixed number of consecutive man-days. By man day we mean a working day of 8 (eight) hours for each developer, for a total of no. 40 (forty) hours per week as required by Article 3, paragraph 1, Legislative Decree n. 66/2003. The fixed number of consecutive man-days and the number of developers in charge of the supply are indicated by the Company in the order form. The sprint mode will be structured as follows:
before the start of the work, the Company and the Client agree in writing, in a specific document (hereinafter, the Technical Analysis), to be understood as an integral and substantial part of this Contract, a list (so-called Backlog) of functionalities ( so-called User Story) of the software, as well as the time schedule (so-called Number of estimated Sprints); at the beginning of each sprint the number of User Stories will be defined that will be treated during that specific sprint (so-called Sprint Planning). Before the start of each sprint, the Company and the Client can define in writing any changes to the technical documentation. The objectives agreed for each sprint cannot, however, be modified by the Client. The Client will be able to communicate in writing any changes in the objectives, which the Company will carry out only in the next sprint after having verified and defined them with the Client in the planning phase; at the end of each sprint, the Company will present the activity carried out to the Customer by means of a specific written report in order to allow verification (so-called Sprint Review). 3.7 The Company will undertake to keep the Client regularly informed and updated on the status of the activities carried out under the Contract, providing any useful support, document or fulfillment within reasonable and compatible terms with respect to the purposes for which the Services must be performed.
Article 4 - Licenses of the Company
4.1 If the requested / requested Service (s) provide / provide for the use of one or more software and / or other applications owned by the Company, the Client will receive a non-exclusive, non-transferable license to use in the following ways specified in the specific document attached to the Contract. The Company will allow the use of each of its software exclusively for the agreed duration and will ensure that the software and technical infrastructure, connectivity and backup services are updated, upon request for a specific continuous assistance service. The Company will therefore hold the ownership of each software and all copies regardless of the medium used or the form. The license to use will not grant the Customer any rights to the original source code. All the techniques, algorithms and procedures contained in the software and related documentation will be the property of the Company. The Customer will be prohibited from using any software, of which it is licensed, for purposes other than those expressly indicated in the documentation provided.
Article 5 - Liability and guarantees
5.1 Within the limits of the provisions of the following article 5, paragraph 2, of the General Conditions, if during the period of effectiveness of the contract and in any case no later than 2 (two) months after its natural expiry, termination or dissolution for any reason, the Customer
has found errors, flaws or defects in the Services, not recognized and not recognizable with normal diligence, such as to constitute breach of the contract, and has communicated them in writing to the Company by registered letter with return receipt. o PEC, to be sent under penalty of forfeiture within 60 (sixty) days of discovery, the Company, at its own expense, will provide, where possible, the Customer with the necessary services to remedy the errors, defects, defects or delays identified . The Company will be exempt from any liability, even within the terms provided for in this article, in the event that the errors, flaws, defects or delays identified by the Customer are determined by applications and / or provisions of third parties. Furthermore, the Company will be exempt from any liability if the product requested by the Customer, pursuant to article 1 of the contract, has been expressly accepted by the Customer and / or his / her delegate and such acceptance results from specific documentation signed by the Customer and / or by his delegate who will be attached to the contract.
5.2 Without prejudice to the provisions of Article 1229 of the Italian Civil Code civ., the overall liability of the Company, deriving for any reason from this contract and / or from its execution of the Services towards the Customer, will always be understood and in any case limited to a maximum total amount, equal to 5% (five for one hundred) of its total value, as indicated in article 2 of the contract. This maximum total amount will be understood as inclusive of capital, interest, expenses, legal and ancillary charges, for emerging damage and loss of profit.
5.3 The obligations and liability of the Company towards the Customer, as established by the previous articles 5, paragraph 1, and 5, paragraph 2, of the General Conditions, will also operate in the event that the aforementioned damages derive from facts, acts or omissions of the subjects, which the Company uses for the realization of the Service / Services.
5.4 In the event of a license for use, pursuant to Article 4 of the contract, the Company will make a specific backup of the data and / or information and / or content processed by the Customer. The Company will not keep any copies or backups of Client data. Once the contract is terminated, the Company will delete all the Customer's data definitively without any copies or backups of any kind being produced after a period of 6 (six) months from the date of termination of the contract and will no longer have any obligation to bear. towards the Customer. In no case, the Company may delete or modify the data uploaded by the Customer in tools and / or applications of third companies.
5.5 The Customer must have the technical knowledge necessary to ensure the correct use, administration and management of the Service, also, the entry and dissemination of data and / or information and / or content through the Service will be carried out exclusively at its own risk and under its sole and exclusive responsibility. Therefore, the Company will not, under any circumstances, assume responsibility for the information, data, content entered or transmitted and, in any case, processed by the Customer, for itself or for third parties or by the latter if authorized by the Customer, through each Service and in general for the use made by the same of the aforementioned Service and will reserve the right to take any initiative and action, to protect its rights and interests, including the communication to the subjects involved of the data useful to allow the identification of the Customer. The Company will in no case be liable for any damage, direct or indirect, of any kind and specie, caused by the Customer to third parties who in any way and form and for any reason have used each Service. In case of customization and / or software license, the Company will provide for the profiling of the Customer and / or any third parties, who will have access to it in compliance with the current legislation on data protection, but will not keep the data extracted on tools of its property or which it uses in carrying out its business.
5.6 The guarantee for defects of conformity and / or for defects and / or lack of quality promised of the products made by the Company has a duration of 1 (one) year from their delivery to the Customer.
5.7 The Customer will be liable to the Company for any damage resulting from delayed or non-payment of the consideration or any breach of the contract.
5.8 The Customer will have the right to use the Service according to the technical specifications and in accordance with the characteristics of the chosen delivery method. The Customer will therefore be entitled to the sole and exclusive indemnity provided therein in the event of failure to comply with the Company's obligations. Any other indemnity or compensation for direct or indirect damages of any nature and kind will therefore be excluded.
5.9 The Customer will guarantee that the data and information provided to the Company, for the purposes of the contract, are true, correct and such as to allow its real identification. The Company reserves the right to verify such data and / or information, also requesting additional documents that the Client will undertake to send to the Company within 7 (seven) calendar days of receipt of the Company's written communication. Otherwise, the Company may interrupt all activities by withdrawing from the contract without any liability at its own expense and without any obligation of indemnity and / or compensation in favor of the Customer.
5.10 The Company will not be in any way responsible towards the Customer for the performance and functionality of the internet network and hosting services, nor will it have any obligation to check the contents of the information that are transmitted via the internet. For this reason, no responsibility can be attributed to the Company for the transmission or reception of illegal information of any nature and kind.
5.11 The Customer, also in the name and on behalf of third parties to whom he may, for any reason, will have the obligation to use each product exclusively for lawful purposes and permitted by the laws, applicable from time to time, by uses and customs, by the rules of diligence and in any case, without infringing any third party rights, assuming all responsibility in this regard. The Customer will therefore be the sole and exclusive administrator of the product and as such will be solely responsible (i) for the management of data and / or information and / or contents processed by him, for their safety and for their saving and for carrying out any other activity deemed useful or necessary to guarantee its integrity, committing, as a result, to apply, at its own expense, suitable and adequate security measures; (ii) the content of the information, sounds, texts, images, elements of form and data accessible and / or made available in the virtual infrastructure and in any case, for any reason, transmitted or entered; (iii) malfunctions for any use that does not comply with the methods of using the service; (iv) the loss or disclosure of access credentials; (v) access management, with the burden of providing for the periodic variation of the access credentials, with a frequency not exceeding 3 (three) months, for greater security of its contents.
5.12 The Customer will be obliged to notify the Company of any changes in their personal data and contact details including the email address indicated at registration.
5.13 The Customer will undertake to promptly inform the Company of any unauthorized use of their account provided for the use of the product or of any other security breach found.
5.14 The Customer will be solely responsible, for himself or for third parties to whom he may, for any reason, have allowed to use the product, regarding the regularity and validity of the software licenses inserted and used independently through the product and will assume them the related costs.
5.15 The Company will keep track, in compliance with current legislation, of the accesses to the account made by the Customer. The Customer will therefore be solely and exclusively responsible for any other operation carried out for itself or for third parties or by them directly, in the use, administration and management of each product. It will therefore undertake to comply or to enforce third parties with the current legislation applicable from time to time, including that lla for the protection of personal data as well as to indemnify and hold harmless the Company from any and all claims or claims for damages, direct or indirect, of any nature and species, by anyone advanced in this regard and to indemnify and hold harmless the Company from any and all requests or claims of third parties for damage caused to them by or through the use of each product. The Client will have to bear all costs, compensation for damages and charges, including any legal costs, which may arise from such liability actions and undertakes to inform the Company if such action should be brought against it.
5.16 The Customer will have the obligation to communicate and enforce any third parties who have allowed, in any capacity, to use each product, all the provisions of the contract, none excluded, also undertaking to indemnify and hold harmless the Company from any possible requests and / or claims for damages by anyone who are entitled to violate the aforementioned provisions and in any case in the behavior of the Customer or the aforementioned third parties.
5.17 During the possible suspension of the account, the Customer will not be able to have access to data and / or information and / or content entered and / or processed by the product.
5.18 The Customer will be liable to the Company for any damage resulting from delayed or non-payment of the consideration or any breach of the contract.
Article 6 - Assistance
6.1 If required pursuant to Article 1 of the contract, the Company will provide ongoing assistance / routine maintenance and periodic software updates, also in cd mode. remote, in order to guarantee the best possible functioning after delivery to the Customer. Any maintenance services or updates of an extraordinary nature will not be included and will be provided to the Customer in the event of acceptance of a specific cost estimate in writing which will be an attachment to the contract within 7 (seven) calendar days of receipt.
6.2 The Customer will be required to promptly notify the Company of any irregularities or malfunctions detected by him in the service within 7 (seven) calendar days from the date on which he found them if he is a professional or a company.
6.3 The maintenance process will take place according to the following intervention methods. In the case of licensed software, the code will be updated in order to make the supplied software usable and functional. The code will remain the property of the Company as defined in Article 12. In all other cases, maintenance will be a separate service, finalized and reported or previously quantified by the body or by the hour.
6.4 Without prejudice to the foregoing, the Company will only assume an obligation of result, also relieving itself and / or the companies controlled by it and their staff, as well as the external companies in charge of the intervention and their staff from any responsibility for any damage, direct or indirect, of any nature and species suffered and suffered for or due to the intervention referred to in Article 8.2 of the general conditions, such as, by way of example only, total or partial loss or damage of data and / or information and / or content by the Customer himself entered and / or processed through the Service and / or total and / or partial interruption of the service.
Article 7 - Confidentiality
7.1 The Company will undertake to keep strictly confidential all data, information and news, of which it will become aware or which it will process in execution of the services, object of the contract, during the duration of the same and, in case of dissolution or termination for any reason, for the following 2 (two) years from that date, with the exception of data, information and news, which, by their nature, must be disclosed or communicated to third parties in order to carry out or perfect the related obligations to the Service / Services performed for the Client or to comply with legal and / or regulatory provisions.
Article 8 - Consideration and payment methods
8.1 The total consideration for the realization of the Services by the Company and the payment methods are indicated in Article 2 of the contract.
8.2 The Company may request from the Customer, who accepts from the signing of the contract, an additional compensation, in addition to that indicated in Article 9, paragraph 1, of these General Conditions, in the event that the same has requested an integration and / or a variation to what was initially agreed in the context of the Services provided for in Article 1 of the contract, upon presentation of a specific quote, accepted in writing by the Client, which will be attached to the contract. The society will consequently proceed with the execution of the integration and / or variation requested.
8.3 The consideration will not include the taxes and expenses incurred by the Company in any capacity for the execution of the Services (including, among others, the costs of transport, board and lodging for travel of staff permanently or temporarily dedicated by the Company for the execution of the contract) (hereinafter, the Costs). The costs will be charged to the Customer at the price documented and approved in writing by the Customer itself before any purchase and / or booking by DuckMa Srl.
8.4 The consideration and Costs will be invoiced by the Company to the Customer, who must pay the relative amounts without delay in the manner and within the terms indicated in the contract and / or in the related documents attached to the contract and / or in the individual invoices.
8.5 In case of delayed payment, default interest will be owed to the Company by the Customer on the amounts invoiced, for each effective day of delay from the due date of the relevant invoice, without the need for formal notice by the Company.
Article 9 - Duration and withdrawal
9.1 The contract has a duration corresponding to that indicated by the Customer in Article 3.
9.2 The Customer will always have the right to withdraw from the contract at any time, without any penalty and without indicating the reasons, with written communication sent by registered letter with return receipt. to DuckMa Srl, Via Vittorio Emanuele II, n. 1, 25122 Brescia, or by certified e-mail (PEC) at email@example.com.
9.3 The withdrawal will be effective after 30 (thirty) days from the date of receipt by the Company of the communication referred to in Article 10, paragraph 2, of the General Conditions. Following the withdrawal, the Company will cease to carry out all activities and will require the Customer to pay any consideration still due in relation to the activities performed.
9.4 The Company may withdraw from the contract at any time and without the obligation to give reasons, by giving written notice to the Customer, with a notice of at least 15 (fifteen) days, except in the case of events caused by force majeure, by virtue which the Company will have the right to terminate the contract with immediate effect. After the aforementioned term has elapsed, the contract must be considered terminated and / or terminated and the Company will cease all its activities without further notice and will request the Customer to pay any consideration still due in relation to the activities performed. In any case, any other liability of the Company for exercising the right of withdrawal will be excluded and the Customer will not be able to claim any other reimbursement or indemnity or compensation of any kind and kind.
9.5 In relation to the processing of the Customer's files, data and / or contents in the event of withdrawal, the specific provisions contained in Article 5, paragraph 4, of the General Conditions will apply.
9.6 In any case of termination of the contract, the Customer will indemnify the Company from any and all liability for any loss or total or partial damage of data and / or information and / or content entered and / or processed by the Customer.
Article 10 - Termination of the Agreement
10.1 The Company, pursuant to and for the purposes of Article 1456 of the Civil Code civ., will have the right to terminate the
contract at any time upon written communication to be made by registered letter with return receipt. o PEC to the Client in case of failure or delayed payment of by the Client. In this case, the Company will, at its discretion, also have the right to suspend immediately and without notice the execution of any activity and the provision of the Service / Services. It will be done in any case without prejudice to the Company's right to compensation for any damages deriving from the early termination of the contract.
Article 11 - Changes and updates
11.1 Any changes and updates to the contract must be agreed between the Company and the Customer and be in writing in specific documents that will be attached to the contract.
Article 12 - Transfer of the contract, subcontracting and execution
12.1 Without the prior written consent of one party, the contract cannot be transferred to third parties by the other.
12.2 The Company, in order to perform the Service / Services to the Client, may resort, in whole or in part, to one or more subcontractors, who will be identified at the sole discretion of the Company. The Customer, by signing these General Conditions, will authorize, pursuant to Article 1656 of the Italian Civil Code. civ., subcontracting. In case of subcontracting, the Company will remain jointly and severally liable with the subcontractor for the execution of the Service / Services.
12.3 The Company will have the right, at its sole discretion, to modify and terminate any sprocurement, as well as to stipulate new ones. The Company will be fully responsible, in addition to the selection, for the work of the subcontractor, as the sole contact for the Client for the processing of the aforementioned contract.
Article 13 - Regulatory reference
13.1 All activities and services related to the Services, unless otherwise provided, will be carried out in accordance with the rules of the civil code governing the contract.
Article 14 - Communications
14.1 All communications relating to the integration and / or revision of the contract and / or the acceptance of estimates and / or expenses as well as the relations between the parties deriving from it, must be made in the manner and at the addresses indicated in Article 4 of contract itself, or at the different address or PEC that each party may communicate to the other after the date of the contract in accordance with the previous provisions, it being understood that at the addresses indicated above, or at the different addresses that may be communicated in the future, each the party will also elect its domicile for any purpose relating to the contract, including that of any judicial notifications.
14.2 All operational communications between the parties relating to the execution of the Services, which do not concern the areas mentioned in the previous article 15, paragraph 1, of these General Conditions, may be made by ordinary email and will be considered effective by the parties as a result of their reception.
Article 15 - Authorizations
15.1 As a result of signing the contract and these General Conditions, the Client authorizes the Company
a) to communicate his name as well as the activities carried out in his interest on its web and social media channels; b) to publish the information referred to in letter a) above on its promotional materials as a case history 16.2 Each party will be required to use the goods covered by this contract in compliance with any intellectual and / or industrial property rights of the other.
15.3 In the case of licenses provided by third parties through the Company, the Customer, for itself and / or for the third parties which it has allowed to use them, will undertake to accept and comply with the terms of these licenses, being aware of the fact that licenses exist between the owner of the intellectual property rights on the same and the Company, with the consequent exclusion of any liability of the Company, if the Customer has violated them in any way.
15.4 The Customer may not in any way make use of the Company's trademarks and / or images and / or advertising material as well as any intellectual and / or industrial property rights it actually uses or is the owner of.
Article 16 - General provisions
16.1 The contract stipulated with the Customer will be sent by email, kept by the Company and sent to the Customer by email.
16.2 Any ineffectiveness and / or invalidity, total or partial, of one or more clauses of the contract and these General Conditions will not result in the invalidity of the others, which must be considered fully valid and effective.
Article 17 - Applicable law and competent court
17.1 The Contract and the general conditions will be governed exclusively by Italian law. If the Company carries out its business towards a counterparty, which qualifies as a consumer, it will apply the provisions of the Italian legislation for its protection.
17.2 The Court of Brescia will be exclusively competent to resolve and decide any and all disputes relating to the interpretation and / or execution and / or application of the contract and general conditions.