1. Generalities
The present contract (hereinafter referred to as Contract) is entered into between Openwork srl with registered office in Bari-Italy at via M. Partipilo 38, P.IVA 05252520720, (hereinafter referred to as Openwork) and the Legal Entity, i.e. the public or private entity, or the association, identified as the customer in the Activation Request (hereinafter referred to as the Customer), jointly referred to as the Parties.
The Contract consists of these General Terms and Conditions of Supply (hereinafter for brevity Conditions, published at https://www.jamio.com/en/general-conditions-for-the-provision-of-services/), and of the other documents set out below (hereinafter for brevity Attachments), all of which form, to all intents and purposes of law, where applicable, an integral and substantial part thereof:
1. Jamio openwork glossary of terms
2. Activation request
3. Additional activation requests
4. Deactivation request
5. Openwork Privacy Policy
6. Openwork Intellectual Property Policy
7. Jamio openwork services usage policy
8. Protection Policy
9. Retention Policy
10. Jamio Plug Directory
11. General terms of provision of Jamio openwork services under GDPR
12. Specific Terms of Provision of Jamio openwork Service Dedicated Web Access
13. Specific conditions of provision of Jamio Openwork Business Console Service
14. Specific conditions of provision of Jamio Plug
15. Specific conditions of supply of the Openwork Help Desk Service
16. Specific conditions of supply of the Data Export Service
17. Specific conditions of supply of the PEC Manager Service
18. Specific conditions of supply of the Mail Manager Service
19. Jamio On Stage Mobile license and subscription form
2. Definitions
Where mentioned, the terms below shall, for the purposes of the Contract, have the meanings set out in the Jamio openwork Glossary.
3. Subject of the contract
The Contract governs access to and use of the Services with the specific features and any special conditions specified in the Activation Request.
4. Contract's completion
4.1. Acceptance of Activation Request
Sending to Openwork, directly or through a Reseller, the Activation Request validly signed and fully accepting the Terms and Conditions, the Openwork Privacy Policy, the Openwork Intellectual Property Policy and any specific Terms and Conditions of supply, constitutes a contractual proposal pursuant to Art. 1326 of the Italian Civil Code towards Openwork which is free to accept or refuse said request. The request is understood to be accepted with the activation of the Services to the Customer which is followed by notification to the Referrer and the designated Reseller, as identified on the Activation Request, of the Referrer's Service Access Credentials and the User Identifier. If the User Identifier indicated in the Activation Request is not available, because it has already been used or in any case cannot be used, Openwork will assign one as similar as possible to the one indicated in the Activation Request. The Customer, by sending the Activation Request, takes note and accepts that he/she is concluding a contract whose only valid and effective version is the one in the Italian language, whereas the other versions provided by Openwork in any other foreign language are put at his/her disposal exclusively as a courtesy.
4.2 Non-acceptance of the Activation Request
The Customer acknowledges and accepts that in the event of non-acceptance of the Activation Request and, in any case, in any case of non-activation of the Services, he/she shall have the right to be refunded by the designated reseller for the price paid for the activation of the Services and that he/she shall not be entitled to make any claim against Openwork and the reseller, if designated, for compensation, damages or claims of any kind for non-acceptance of the proposal and, in any case, for the non-activation of the Services. It is understood that no interest or charges of any kind will be due on this sum.
4.3. Acceptance of Contract Terms
It is understood, in any case, that the use of the Services by the Users attests the acceptance of all the contractual conditions and they are understood to be valid for the entire duration of the Contract.
5. Commencement and term
The Contract shall run from the date of activation of the Services to the Customer, in accordance with Art. 4.1and is valid and effective for one year, unless otherwise indicated in the Activation Request and as provided in Art. 20. If the Activation Request Date is indicated in the Activation Request, the Services shall be activated at the earliest on that date.
6. Characteristics of Services
6.1. Provision of Services
Users may access and use the Services under the Contract from the date of activation of the Services.
6.2. SLA
Openwork guarantees the Customer the supply and use of the Services 24/7/365, subject to the interruption/suspension hypotheses foreseen in the Conditions, and undertakes to ensure their best functionality and maximum accessibility via the Internet with an uptime of 99.8% on an annual basis. The suspensions referred to in Art. 8.2 e 8.3 shall not be counted for the purpose of calculating the uptime. The Services shall be provided until the end or termination of the Contract in the manner established in the following articles. 20 e 21
6.3. Infrastructure
The Virtual Infrastructure used for the provision of the Services guarantees: ISO 27001:2013, ISO 27018:2014, ISO 27017:2015 certified suppliers; Encryption of server-Customer communications via SSL; uptime of not less than 99.99% on an annual basis; datacenters located in EU countries.
- - ISO 27001:2013, ISO 27018:2014, ISO 27017:2015 certified suppliers;
- - Encryption of server-client communications using SSL;
- - uptime of not less than 99.99% on an annual basis;
- - datacenters located in European Union countries;
-
6.4 Concurrent Sessions
Number of users able to access the PaaS Jamio openwork concurrently. Access is only possible if the number of open concurrent sessions is less than or equal to the number of concurrent sessions purchased.
6.5. Data Management
Openwork will use, as a minimum requirement, industry standard technical and organizational security measures to transfer, store and process the Data. These measures are designed to protect the integrity of the Data and to protect against unauthorized and unlawful access, use and processing of the Data. The Customer consents to the transfer, storage and processing by Openwork of Data in locations other than the Customer's country subject to limitations specified in the Activation Request.
6.6. Efficiency
In order to guarantee the continuity and efficiency of the Services, Openwork adopts automatic efficiency mechanisms described in the documents Protection Policy and Retention Policy. The Customer declares that he/she is aware of these mechanisms and consents to their application.
6.7 Back-up
Openwork carries out daily backups of all users' archived data for disaster recovery purposes. Openwork does not carry out any specific backup of the archived data, therefore the Customer must provide a local back-up of the same by means of a specific Data Export service in order to be able to restore them independently.
6.8. Monitoring
Monitoring by Openwork is carried out using specific software that detects and indicates any faults or anomalies.
6.9. Organization
Openwork, for the provision of the Services, will also be free to make use of professionals from outside its organization or subcontractors, without prejudice to its liability to the Customer within the limits set out in the Conditions.
7. Disruptions
7.1. Total Inaccessibility of Services
The complete inaccessibility via the Internet network to the Services for a total time exceeding that determined by the uptime parameter as set forth in Art. 6.2 constitutes an inefficiency for which Openwork recognizes, by way of compensation, a credit equal to 3% of the monthly fees of the Services active on the date the inefficiency is reported and whose fee is calculated on a monthly basis, for each complete fraction of fifteen minutes of inefficiency beyond the limits set by the uptime parameter, up to a maximum of 300 minutes. Credit shall be given to the Reseller, if the Customer has designated a Reseller, or to the Customer.
7.2. Inaccessibility of a specific Service
The inability to use a specific Service, the fee for which is calculated on a monthly basis, for a total time exceeding that determined by the uptime parameter as set forth in Art. 6.2, constitutes inefficiency for which Openwork recognizes, by way of indemnity, a credit equal to 3% of the monthly fee of the unusable Service, for each complete fraction of fifteen minutes of inefficiency beyond the limits set by the uptime parameter, up to a maximum of 300 minutes. The credit shall be granted to the Reseller, if the Customer has designated a Reseller, or to the Customer
7.3. Claim
The Customer, in order to have the Credit recognized, must submit a request within 10 (ten) days from the end of the disservice to the designated Reseller. However, only inefficiencies confirmed also by the Openwork monitoring system shall be taken into consideration for the purpose of Credit recognition. The Credit can only be used as a deduction to amounts due for new Activation Requests or Additional Activation Requests.
7.4 Exclusions
Below are the conditions under which, notwithstanding the occurrence of any inefficiency, compensation is not due: suspension as provided for in Art. 8.2 e 8.3; faults and malfunctions of any third-party services as described in Art. 11; Jamioware faults and malfunctions not provided by Openwork; unavailability of the Services: due to a) incorrect use or configuration by the Referrer or the Users or the Reseller, or b) anomalies and malfunctions of the Jamioware implemented by the Customer, the End-Users or the Reseller, c) breach of contract or breach of contract attributable to the Customer; failure or malfunctioning of the Services, or failure or delay in their removal or elimination due to breach or violation of the Contract by the Customer or to misuse of the Services by him or the Reseller; causes resulting in the total or partial inaccessibility of the Services due to faults in the Internet network; suspensions resulting from violations of the provisions of Art. 9.
8. Suspension
8.1. Of an Account
If a User (a) violates the Contract or (b) uses the Services in such a manner that Openwork may reasonably be held liable for any damages, Openwork may require the Customer to suspend or deactivate the affected User's Account. In the event that the Customer does not promptly suspend or deactivate the User's Account, Openwork may do so instead.
8.2. Of the Services
Notwithstanding anything else in the Contract, Openwork reserves the right to automatically suspend, in whole or in part, the use of the Services. a) to carry out ordinary and extraordinary maintenance work on the Services; in the case of ordinary maintenance Openwork will notify the Contact Person at least 72 (seventy-two) hours in advance; in the case of extraordinary maintenance notice will be given where possible;b) for cases of force majeure; cases of force majeure are all events beyond the reasonable control of Openwork, in any case, not foreseeable by the latter, dependent on natural events or those of third parties, such as by way of example emergencies relating to security, faults in the network or service delivery systems, activities and/or decisions of the Public Administration, acts and orders of the Military Authority, legal restrictions, natural catastrophes, lightning, fires, explosions, riots, wars, epidemics as well as strikes, industrial disturbances, lack of raw materials, energy or transport; in this case Openwork will implement any commercially reasonable initiative at its disposal to limit the suspension as much as possible to the extent necessary to prevent or respond to the emergency.c) at the request of the Designated Retailer, if the Customer fails to comply with the payment terms as set out in Art. 16.4.
8.3 Express request
Openwork also reserves the right to suspend the provision of the Services, or to prevent access to the archived Data if an express request to that effect is made by a judicial or administrative body competent in the matter according to the regulations in force. In this case Openwork will notify the Customer of the reasons for the adoption of the measures laid down therein. This case constitutes a case of force majeure for which Openwork will have the right to withdraw from the Contract with immediate effect as established in the following Art. 20.2.
9. Usage Policy
The usage policies for the Services are specified in the attached document Jamio openwork Services Usage Policy.
Customer's obligations
10.1. Compliance
The Customer hereby indemnifies Openwork and agrees to be solely responsible for the use of the Services by Users. Users must use the Services in accordance with Art. 9. The Customer undertakes to inform End-Users of the prohibitions set out in this art. 10 and guarantees that the latter will not use the Services in a manner that conflicts with the prohibitions set out therein. The Customer shall obtain the End-Users' consent, if any, to allow Openwork technicians to carry out the activities described in the Contract and to allow Openwork to provide the Services.
10.2. Unauthorized Use and Access
The Services may not be used by End Users under the age of 13 years, or the minimum age in the relevant jurisdiction. The Customer must ensure that it does not allow any person under the age of 13, or the minimum age in the relevant jurisdiction, to use the Services. The Customer must prevent unauthorized use of the Services by Users and terminate any unauthorized use of or access to the Services. The Customer agrees to promptly notify Openwork of any unauthorized use of or access to the Services.
10.3. Restrictions on Use
The Customer is prohibited from: use the Services in critical situations involving, by way of example, specific risks to the safety of persons, environmental damage, specific risks in relation to mass transport services, the management of nuclear and chemical plants and medical devices; in such cases, Openwork makes itself available to assess and negotiate specific service levels with the Customer; decode the Services or reverse engineer the Services or attempt or assist anyone to do so unless such restriction is prohibited by law; market the Services as an agent or reseller or distributor or licensee of Openwork or in any other capacity; use the Services in OEM Mode; allow third parties to use the Services for activities that are not related to Customer processes.
10.4 Referent's Account
The Customer is obliged to: Appoint a Contact Person for the management of the Services who has the necessary knowledge to ensure the correct use and configuration of the Services and to correctly manage the communications sent by Openwork; to keep the Referrer's Service access credentials strictly confidential and not to transfer them to third parties, and to adopt the security measures provided for by current legislation on privacy and Processing of Personal Data.
10.5. Responsibility to Customer's Accounts
The Customer also agrees to accept responsibility for protecting the confidentiality of any non-public access credentials associated with the use of the Services. The Customer will notify Openwork of any misuse of the Accounts or any breach of protection relating to the Services.
10.6 Identity
The Customer undertakes to communicate to Openwork his/her own data and that of the Referent necessary for the complete and correct execution of the Contract; he/she also guarantees, under his/her own personal and exclusive responsibility, that the above-mentioned data is correct, up-to-date and true and that it allows for the identification of his/her true identity. The Customer undertakes to communicate to Openwork any variation in the data supplied, promptly and in any case within and no later than 15 (fifteen) days from the occurrence of the above-mentioned variation, and also to provide at any time, upon request from Openwork, adequate proof of their identity, their domicile or residence and, if necessary, of their capacity as legal representative of the Customer. Upon receipt of the above-mentioned communication, Openwork may request additional documentation from the Customer aimed at proving the truthfulness of the communicated data. In the event that the Customer fails to provide Openwork with the above-mentioned communication or the requested documentation, or in the event that they have provided Openwork with data which is false, not current or incomplete, or data which Openwork has reason, in its sole discretion, to believe to be such, Openwork reserves the right to: reject the request made by the Customer concerning transactions to be performed in connection with the Services; suspend the Services with immediate effect, without notice and indefinitely; cancel and/or discontinue without notice any modification of the data associated with the Services; terminate the Contract.
10.7 Third Party Requests
The Customer is responsible for responding to Third Party Requests using its own access to information. The Customer must attempt to obtain the information required to respond to Third Party Requests and will only contact Openwork if it is unable to obtain such information despite having made reasonable efforts. Openwork will use every means at its disposal to the extent permitted by law and the terms of the Third Party Request to: (a) promptly notify the Customer of Openwork's receipt of the Third Party Request; (b) comply with any reasonable request by the Customer to object to the Third Party Request; and (c) provide the Customer with the information or tools required to respond to the Third Party Request (if the Customer is unable to obtain the information otherwise). If the Customer fails to respond to the Third Party Request in a timely manner, Openwork may do so, although this is not its obligation.
10.8 Export Restrictions
The export or re-export of Data stored using the Services may be subject to Italian export regulations, other export restrictions or embargoes. Use of the Services in countries embargoed by the Republic of Italy is prohibited and the Customer must ensure that the Services are not used in violation of any export restriction or embargo by the Republic of Italy or any other relevant jurisdiction. In addition, the Customer must ensure that the Services are not provided to organizations in violation of any restriction by the Republic of Italy.
11. Third-party software services and applications
11.1. Calling up the Services.
If the Customer uses a third party service or software application to retrieve the Services (e.g., a service using an API from the Openwork PaaS Jamio) (a) Openwork shall not be liable for any acts or omissions of the third party, including the third party's access to or use of the Stored Data, and (b) Openwork does not warrant or endorse any services or software applications provided by third parties.
11.2. Called from the Services
If Customer uses the Services to invoke a third party service or software application (e.g., a process in the Openwork PaaS Jamio calling an external web service) (a) Openwork shall not be responsible for any acts or omissions of the third party, including the third party's access to or use of the Stored Data, and (b) Openwork does not warrant or endorse any service or software application provided by the third party, and (c) Openwork shall not be responsible for any acts or omissions of Customer in using the third party service or software application.
12. Reseller
12.1. Reseller Choice
The Customer in the Activation Request may choose to purchase the Services from a Reseller. Any additional Activation Request related to the User mentioned in the Activation Request must come from the same Designated Reseller. Should Openwork or the Designated Reseller choose to terminate the business relationship with the other party, the Customer shall either find a replacement Reseller or purchase directly from Openwork. In this case, the customer may be asked to accept different economic conditions.
12.2. Change of Reseller
At any time the Customer may change reseller by notifying Openwork. Under no circumstances will a change of reseller lead to an interruption in the provision of Services.
12.3. Access as Administrator
The Customer acknowledges and agrees that (i) once the Designated Reseller is defined, such Designated Reseller shall be the primary administrator of the Services and shall have administrative privileges and access to the Customer Data; (ii) the data protection right procedures adopted by the Designated Reseller with respect to Customer Data or any Services provided by the Designated Reseller may be different from Openwork's data protection right procedures; and (iii) the Designated Reseller may collect, use, transfer, disclose and otherwise process Customer Data, including personal data. The Customer authorizes Openwork to provide to the Designated Reseller the Customer Data and information made available by the Customer to Openwork for the purpose of ordering, providing and managing the Services.
13. Support
Support for the Services will be provided by the Reseller, if appointed, or by Openwork if the Customer has subscribed to one of the Openwork Help Desk Services.
14. Confidentiality
14.1 Joint Obligations
The Parties mutually undertake to treat as confidential any data or information known or handled in connection with the performance of the Services.
4.2. Openwork's Access to Archived Data
The Customer acknowledges that Openwork, in the execution of the activities foreseen by the Contract, if strictly necessary and subject to authorization, may have access to archived Data. Such Data are in any case the property of the Customer and Openwork will access them exclusively for the purposes related to the provision of the Services and in full compliance with the regulations in force on confidentiality, privacy and the processing of personal Data and in accordance with the Openwork Privacy Policy.
14.3 Obligations of Openwork
It is expressly understood that Openwork shall have the right to hand over the stored Data in the event of a request from any public authority and that in such a case, unless expressly prohibited, Openwork's only obligation shall be to notify the Customer.
15. Intellectual Property Rights
By signing the Contract, the Customer declares that he/she has read and fully accepts the provisions contained in the attached document Openwork Intellectual Property Policy.
16. Fees and payment terms
16.1 Fees
The Customer shall pay all applicable fees set by the Designated Retailer and authorizes the Designated Retailer to charge the amounts due using the agreed method of payment. Fees are non-refundable except as required by law. It is the Customer's responsibility to provide the Designated Reseller with complete and accurate billing and contact details.
16.2 Invoicing.
In the case of direct purchase from Openwork, invoices will be issued on the date of activation of the Services or their renewal. A specific invoice will be issued for each User.
16.3 Taxes
Customer shall be responsible for the payment of VAT and any other taxes or levies stipulated by current legislation, which shall be borne by the Customer. The Designated Retailer shall charge the taxes due when necessary. Should the Customer be required to withhold any taxes, he shall provide the Designated Dealer with the appropriate supporting documents.
16.4 Terms and Methods of Payment.
The established fees shall be paid in the manner determined by the Designated Retailer.
17. Additional services
17.1 Additional Activation Requests
The Customer, during the period of validity of the Contract, may request the provision of additional Services (e.g. access of additional users, use of additional storage, etc.) by signing one or more Additional Activation Requests and sending them to Openwork via the designated Reseller. If the Activation Request Date is indicated in the Additional Activation Request the services will be activated no earlier than that date.
17.2 Rates for Monthly Fee Services
For additional Services, the fee for which is calculated on a monthly basis, the Customer shall pay to the Designated Reseller the monthly fee for the months or fractions of months between the date of activation of the Services and the expiry of the Contract, using the rates set by the Designated Reseller and the agreed payment method.
17.3 Extra consumption
Openwork reserves the right to verify the Customer's use of the Services. If conditions of use of the Services are found to be greater than the Services purchased (e.g. storage used greater than purchased or number of Users enabled to use the Services greater than purchased) Openwork will notify the Referrer and Reseller, if designated, to adjust the position by: (a) restoring conditions of use consistent with the Services purchased (e.g. deleting Archived Data in order to reduce storage used or disabling Users) or (b) purchasing Additional Services e.g. by purchasing new storage, Users, Credits or Jamio Beats. In case of excess Jamio Beats, the use of Jamio Beats will always be allowed to the Customer and there is no refund of any unused Jamio Beats. For the calculation of the amount due for the Monthly Fee Services, the provisions of Art. 17.2 considering the date of activation of the additional Services as the date on which the consumption is recorded. If within 10 (ten) days from the above-mentioned notification the Customer has not settled the position by sending an appropriate Additional Activation Request, Openwork will consider this request as tacitly signed by the Customer and sent to Openwork. In the case of a greater consumption of Services than those purchased, Openwork will proceed with the supply and invoicing of such Services consistently with the excess Services consumed.
18. Services deactivation
18.1 Request
The Customer may request deactivation of the purchased Services by sending a validly completed Deactivation Request to Openwork via the designated Reseller.
18.2 Perfecting Deactivation
Openwork will check whether the Deactivation Request is consistent with the current use of the Services. If the request is not, in part or in full, Openwork will inform the Contact Person (for example if the Customer requests a reduction in available storage and the amount of storage used is greater than that which would be available following the Deactivation Request) and the Designated Reseller; otherwise Openwork will proceed to deactivate the requested Services within 30 (thirty) days from the date of receipt by Openwork of the Deactivation Request. The Customer is obliged to pay all invoices issued by the Designated Reseller up to the time of receipt of the Deactivation Request for the requested Services. The right to use any unused Credits ceases with the deactivation of the Service to which they are associated and nothing is owed by the Designated Reseller and Openwork to the Customer for the non-use of the same.
18.3 Minimum Conditions
A User must be associated with at least three active users and 10 GB of storage; any request for deactivation in violation of these minimum conditions cannot be accepted by Openwork.
19. Automatic renewal
19.1. Termination. The Contract shall be deemed to be tacitly renewed from year to year, unless (a) the Customer notifies the Designated Reseller of its intention not to renew at least 30 (thirty) days before expiry, or (b) otherwise specified in the Activation Request or Additional Activation Request.
19.2. Rates and Billing.In the case of automatic renewal, the Customer shall pay the applicable tariffs, as determined by the Designated Reseller, referring to all Services active on the renewal date, the fee for which is calculated on a monthly basis. Invoicing will be done on the renewal date.
20. Withdrawal
20.1 Od the Customer
The Customer shall always have the right to withdraw from the Contract at any time, without penalty and without stating reasons, by notifying the Designated Retailer, a validly signed notice. The withdrawal shall be effective 30 (thirty) days from the date of receipt by the Designated Retailer of the aforesaid notice.
20.2 Of Openwork
Openwork reserves the right to terminate the Contract at any time and without obligation to justify, by sending the Customer and the Reseller, if designated, written notice by registered letter with return receipt or PEC to the addresses indicated in the Activation Request, with at least 15 (fifteen) days notice, except in the case of events determined by force majeure or the presence of exceptional circumstances that justify the early termination (in accordance with the provisions of art. 20.6), in virtue of which Openwork reserves the right to terminate the present contract without notice and with immediate effect. Once the above term has expired, the Contract shall be considered terminated and/or ended. In any case, any responsibility of Openwork for the exercise of the right of withdrawal and/or for the unsuccessful use of the Services by the Customer, or the consequent right of the latter to claim reimbursement or compensation of any kind and type is expressly excluded.
20.3 Notice to fulfill
Pursuant to Art. 1454 of the Civil Code, either party may enjoin the other in the prescribed for in Art. 20.1 e 20.2respectively, the fulfilment of its contractual obligation within a term of 15 (fifteen) days. After this period has elapsed without the summoned Party having fulfilled its obligation, the Contract shall be deemed to be rescinded.
20.4 Express termination clause
Either Party may terminate this Contract with immediate and automatic effect, without notice, by a declaration to the other Party of its intention to avail itself of this clause pursuant to Article 1456 of the Civil Code, to be made respectively in the manner set forth in the preceding Art. 20.1 e 20.2in the event of a serious breach of contract by the other Party that does not permit the continuation, even temporarily, of the contractual relationship on a basis of mutual trust.
20.5 Serious Breach
Serious breach shall be considered, within the meaning of Art. 20.4, the infringement of Art. 9, 10.3, 10.5, 14.1, 15 of this Contract.
20.6 Exceptional Circumstances for Immediate Withdrawal
The cessation of the Customer’s activity or its subjection to insolvency proceedings are exceptional circumstances that justify the immediate withdrawal of Openwork, pursuant to art. 20.2.
21. Effects of termination or termination
21.1 Customer's Rights and Obligations
Upon termination or cessation of the Contract: (a) Openwork shall deactivate the Services; and (b) the rights granted by Openwork to the Customer shall immediately cease (except as set out in Art. 28); and (c) in the event of termination by Openwork for causes not attributable to force majeure or default as set out in Art. 20.2, 20.3 e 20.4 and in the event that the Customer has not designated a Reseller, Openwork will issue a credit note to the Customer for any monthly fees invoiced for full months following the termination of the Contract; and (d) in the event that Openwork withdraws due to causes not attributable to force majeure or non-fulfilment as provided for in Art. 20.2, 20.3 e 20.4 and in the event that the Customer has designated a Reseller, Openwork shall issue to the Reseller a credit note for any monthly fees invoiced for full months following the termination of the Contract, the Reseller shall issue to the Customer a credit note for any monthly fees invoiced for full months following the termination of the Contract (e) in the event of termination other than as set out in (c) and (d) above the Customer shall pay all invoices issued by the Designated Reseller until the termination or cancellation of the Contract and (f) the Customer's right to use any unused Credit shall cease and nothing shall be due from the Designated Reseller to the Customer for the non-use thereof and (g) the Customer's right to submit additional Activation Requests under the Contract shall cease.
21.2 Safeguard Period
Once 30 (thirty) days have elapsed from the expiry or termination of the Contract Openwork shall delete the archived Data. The Customer acknowledges that once this period has elapsed, it will no longer be possible to retrieve any archived Data. In any event of termination or expiration of the Contract, the Customer hereby indemnifies Openwork and the Reseller, if appointed, from any and all liability for any loss or total or partial damage to the Archived Data. During the term of the Contract, the Customer may purchase, at the then current rates, a specific service to export the Archived Data.
22. Indemnity clause
22.1 Customer's Obligation
The Customer agrees to indemnify, hold harmless and hold Openwork harmless from any and all losses, damages, liabilities, costs, charges and expenses, including attorneys' fees, which may be incurred or suffered by Openwork arising out of a third party claim against Openwork or its affiliates, suppliers, Resellers and distributors relating to: (a) Managed Data; (b) use of the Services by Users in violation of this Contract.
22.2 Dispute Management
Openwork will promptly notify the Customer of the claim and cooperate with the Customer in the defence thereof. The Customer shall have complete control over and be responsible for the defence unless (a) any settlement involving an admission of liability on the part of Openwork requires prior written consent, which may not be withheld or delayed without cause, and (b) Openwork wishes to participate in the defence with its own counsel and at its own expense.
23. Disclaimer
Openwork does not guarantee that the Services are free from faults or errors nor that the functions carried out by the Services are able to satisfy all the present and future needs of the Customer. Notwithstanding the provisions of Art. 1578 et seq. of the Civil Code, Openwork is not liable for damages arising to the Customer from original or supervening defects in the Services. The Services are provided "sight unseen". To the fullest extent permitted by law and except as expressly set forth in the Contract, neither Openwork nor its affiliates, suppliers, Resellers and distributors disclaim any warranties of any kind, implied, express, statutory or otherwise, including warranties of merchantability, fitness for a particular purpose or non-infringement. The Software Services, in general, cannot be developed to operate error-free with respect to all possible applications and uses, and updating the Services may introduce new errors not present in previous versions. The Customer agrees and accepts that the Services may contain errors, therefore in his own interest and in order to avoid damage to himself and others, he undertakes to always and diligently carry out, before, during and after each important operation, accurate checks and controls and to keep precise and detailed records of them, in order to detect and remedy in good time possible malfunctions of the Services and of the applications developed on them. The Customer shall be responsible for the management and backup of the stored Data.
The software services, in general, cannot be developed in such a way that they operate error-free with respect to all possible applications and uses, moreover, updating the Services, may introduce new errors not present in previous versions. The Customer agrees and accepts that the Services may contain errors, therefore in its own interest and in order to avoid damage to itself and others, it undertakes to always and diligently carry out, before, during and after each important operation accurate checks and controls and to keep accurate and detailed records of them, in order to detect and remedy in time possible malfunctions of the Services and applications developed on them. The Customer is responsible for the management and backup of the stored Data.
24. Limitation of liability
24.1 Limitation of Indirect Liability
To the maximum extent permitted by law, with the exception of indemnity obligations on the part of Openwork (provided for in Art. 9.1 of the Openwork Intellectual Property Policy document) or the Customer (provided for in Art. 22), neither the Customer nor Openwork and its affiliates, suppliers, resellers and distributors shall be liable under the Contract for (a) indirect, special, incidental, consequential, exemplary or punitive damages or (b) loss of use, data, management, revenue or profits (whether direct or indirect in either case), even if the Party knew or should have known that such damages could occur and even if the damages are not satisfactorily remedied.
24.2. Openwork's total liability under the Contract shall not exceed the amount provided for in Art. 7.1 e 7.2 being expressly excluded, as of now, any other indemnity or compensation to the Customer for direct or indirect damages of any nature or kind whatsoever. The Customer acknowledges and accepts, as of now, that in all cases in which the above-mentioned articles do not apply, Openwork will be liable exclusively within the limits of the amount paid in the last 12 months by the Customer or by the Reseller, if designated, for the specific User.
25. Personal data processing and data security
25.1 Roles
Openwork, for the sole phases of collection, processing and management of Personal Data, necessary for the activation of Services (e.g. Referrer data), acts as Data Controller in accordancè with the role definitions described in the GDPR.
25.2 Modalities
The Processing of Personal Data communicated by the Customer to Openwork for the purposes of the execution of this Contract and the subsequent provision of the Services, shall be carried out̀ in accordance with̀ applicable laws or regulations on privacy and the Processing of Personal Data, with the Openwork Privacy Policy and by virtue of the consent to the Processing of Personal Data given by the Customer in the Activation Request.
25.3 Personal Data of which the Customer is the Data Controller or Data Processor
The Parties accept, for the Personal Data processed by the Customer (by way of example but not limited to End-User Accounts, Openwork Help Desk Service users' emails), the conditions set out in the GDPR Conditions document.
25.4. Disclosure
By signing the Contract, the Customer declares having read and accepted in full the information contained in the Openwork Privacy Policy document.
25.5 Data Protection
Openwork undertakes to use infrastructures, including those of third parties, in full compliance with the legal provisions on the protection of Personal Data and with ISO 27001:2013, ISO 2718:2014, ISO 27017:2015 certification, international standards that certify information security controls, define guidelines and general principles for the introduction, implementation, maintenance and improvement of information security management, certify the management of personal data in relation to cloud services. For further information on the security of the Services the Customer may request from Openwork, in the manner indicated in art. 25.10, the Jamio openwork PaaS security technical report, a document that describes from a security perspective the architecture and functionality of the Services.
25.6 Protecting Communications
The Services are accessible with SSL (Security Socket Layer) protocol using certificates issued by recognised Certification Authorities. The SSL protocol represents the standard solution adopted to guarantee the security of on-line transactions, regardless of the type of service, by enabling two fundamental security services: secure channel - all managed Data are encrypted, ensuring confidentiality and integrity; server authentication - the user can verify the identity and authenticity of the website to which he has logged on.
25.7 Cookies and other technologies
In order to provide, improve, protect and promote the Services, Openwork uses technologies such as cookies (for example, cookies allow you to remember your user name for your next visit). You may set your browser not to accept cookies, but this may limit your ability to use the Services.
25.8. Responsibilities of the Customer
The Customer is solely responsible for determining for itself whether the organizational and technical measures of the Services meet the requirements of the Customer, including its privacy obligations under the GDPR or other applicable data protection laws or regulations. The Customer acknowledges and accepts that (taking into account the state of the art, the costs of implementation, as well as the nature, scope, context and purposes of the processing of its Personal Data, as well as the risks to individuals) the security procedures and policies implemented and ensured by Openwork guarantee a level of security appropriate to the risk in respect of its Personal Data. The Customer is obliged to implement and ensure Personal Data protection and security measures for the hardware and software components that the Customer uses or controls.
25.9. Other Technical and Organizational Measures of Openwork
Openwork, at the Customer's request, undertakes to provide any necessary information to illustrate the technical and organizational measures adopted to protect Personal Data in accordance with applicable laws or regulations.
25.10. Enquiries and Reports
Enquiries or reports regarding privacy, personal data processing and security should be forwarded via the Openwork Help Desk Service.
26. Disputes
26.1 Informal Resolution
It is Openwork's intention to address problems without resorting to legal action. Each party agrees to try to resolve the dispute by contacting the other party through the notification procedures described in Art. 31.3. If the dispute is not resolved within 30 (thirty) days of notification, either the Customer or Openwork may file suit.
26.2 Arbitration Clause
The Customer and Openwork agree to settle any claim concerning the Contract or the Services by final and binding arbitration except as provided below. The Chamber of Arbitration and Mediation of the Chamber of Commerce of Bari will handle the arbitration in accordance with the Rules of Arbitration Procedure defined by it.
26.3 Exceptions to the Arbitration Clause
Either party may file suit in the Court of Bari, without first initiating the informal dispute notification process described above, solely for injunctive relief to stop unauthorized use or misuse of the Services or infringement of IP Rights. The Customer accepts such venue and jurisdiction.
27. Modifications
27.1 Changes to the Services
Openwork reserves the right to periodically update the Services including the Services API.
27.2 Changes in Terms
Openwork reserves the right to periodically modify the Terms, the Specific Terms of Supply, the Openwork Privacy Policy, the Intellectual Property Policy, the Jamio openwork Services Use Policy.
27.3 Revised rates
Openwork reserves the right to update the Price List at any time.
27.4 Notifications
Should Openwork make technical-economic modifications which are worsening or aggravating in functional and/or economic terms, or modify the contractual terms in any part, these modifications will be notified to the Contact and, in the case of the contractual terms, published at http://www.jamio.com/condizioni-generali-fornitura-servizi the above-mentioned modifications will take effect 15 (fifteen) days from the date of their notification. Within the same period, the Customer may exercise the right to withdraw from the contract in the manner set forth in Article 20. 20.1. Should the Customer fail to exercise the right to withdraw, within the terms and in the manner indicated, the changes shall be deemed to be definitively known and accepted by the latter.
28. Waivers
28.1 Arrangements
Any waiver by either Party of any provision, any right or the possibility of claiming any breach of the Contract must be in writing and signed by the renouncing Party. Any purported waiver submitted not in writing and without any signature by the waiver party shall be of no effect.
28.2 Scope
A waiver of any clause does not imply a waiver of the remaining clauses.
28.3 Future Rights
A waiver may not preclude the renouncing Party from relying on any rights that will arise in the future or from making any claim about a subsequent breach of this Contract, even if that future right or subsequent claim is the same as the one previously waived.
29. Over extension
This clause and the other clauses of the Conditions set forth below, as well as the provisions set forth in documents to which such clauses refer, shall continue to be valid between the Parties even after the termination or expiration of the Contract, for whatever cause due to or attributable to any party: Art. 2 (Definitions), Art. 10.7 (Third Party Claims), Art. 14 (Confidentiality), Art. 15 (Intellectual Property Rights), Art. 16 (Fees and payment terms), Art. 21 (Effects of Termination or Termination), Art. 22 (Hold Harmless Clause), Art. 23 (Declaration of non-liability), Art. 24 (Limitation of Liability), Art. 25 (Processing of Personal Data and Data Security), Art. 26 (Disputes), Art. 28 (Waiver) and Art. 31 (Various).
30. Safeguard clause
In the event that one or more provisions contained in the Contract are held, for any reason, to be illegal, invalid or unenforceable, except to the extent that the removal or elimination of such illegal, invalid or unenforceable provisions would prevent compliance with the Contract, the legality, validity and enforceability of the remaining provisions contained in the Contract shall not be affected and the Contract shall be construed as if such illegal, invalid or unenforceable provisions had never been contained in the Contract. Unenforceable provisions shall be amended to reflect the intention of the Parties and only to the extent necessary to make them enforceable.
31. Various
31.1 Indivisible Contract
The Contract constitutes the entire Contract between the Customer and Openwork with respect to the subject matter of the Contract and supersedes any prior or contemporaneous Contract or understanding, whether written or oral, with respect to the subject matter of the Contract. In the event of any conflict between the documents constituting the Contract, priority shall be given in the following order: the Conditions, the other Annexes to the Contract.
31.2. Applicable Law
The contract is governed exclusively by the laws of the Italian Republic.
31.3 Notifications
Notifications to Openwork must be sent by registered mail with return receipt, to the address Openwork s.r.l. - Via M. Partipilo n. 38 - 70124 Bari - Italy, or by PEC, to the address openwork@pec.it, and are considered as delivered upon receipt. Notifications to the Customer, unless otherwise specified, are sent to the address indicated in the Activation Request and are considered as delivered when they are sent.
31.4. Assignment
The Customer may not assign or transfer the Contract or any rights or obligations under it without the written consent of Openwork. Openwork may not assign the Contract without informing the Customer, except to assign the Contract to an affiliate or in the event of a merger, acquisition, corporate reorganization or sale of all or a substantial part of its assets. Any other attempted transfer or assignment shall be null and void.
Openwork may not assign the Contract without informing the Client, except in the case of assignment of the Contract to an affiliate or in the case of a merger, acquisition, corporate reorganization, or sale of all or a substantial part of its resources. Any other attempted transfer or assignment shall be considered null and void.
31.5 No agency mandate
Openwork and the Customer are not legal partners or agents but independent contracting parties.
31.6. Force Majeure
With the exception of payment obligations, neither Openwork nor the Customer shall be liable for inadequate performance if it is caused by a condition beyond the reasonable control of the party (e.g. natural disasters, acts of war or terrorism, strikes, actions of public authorities and Internet failures).
31.7 Absence of third party beneficiaries
There are no third-party beneficiaries under the Contract. Without limiting this Article, under the Contract, End-Users are not third party beneficiaries of the Customer's rights.
31.8Jurisdiction
The Court of Bari shall have exclusive jurisdiction over any dispute connected with the Contract
Rev 1.7 dated 23/05/2023
jamio.com
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