Terms and Conditions for the use of Altamira Services

Terms and Conditions for the use of Altamira Services
These terms and conditions govern your free trial of the services. If you purchase our services, this agreement will also govern your purchase and ongoing use of those services. You shall accept these terms and conditions, either by clicking a box indicating your acceptance or by executing an order form that references these terms and conditions. If you are acting on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms “you” or “your” shall refer to such entity and its affiliates. WARNING. You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. These terms and conditions were last updated on December 1, 2010. Table of Contents 1. Definitions 2. Free Trial 3. Purchased Services 4. Use of the Services 5. Fees and Payment for Purchased Services 6. Proprietary Rights 7. Confidentiality 8. Warranties 9. Claims 10. Liability – Co-operation 11. Term and Termination 12. Final Provisions

1. DEFINITIONS

Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. “Agreement” means the Order Form and these terms and conditions. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs. “Order Form” means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between You and Us from time to time. Order Forms shall be deemed incorporated herein by reference. “Purchased Services” means Services that You purchase under an Order Form, as distinguished from those provided pursuant to a free trial. “Services” means the online, Web-based applications and platform provided by Us via http://www.altamirahrm.com and/or other designated websites as described in the User Guide, that are ordered by You as part of a free trial or under an Order Form. “User Guide” means the online user guide for the Services, accessible via http://www.altamirahrm.com, as updated from time to time. “Users” means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by You (or by Us at Your request). “We,” “Us” or “Our” means Altamira S.r.l., tax code 12940250157, current address: Corso Magenta 56, 20123 Milan, Italy., Telephone: +39 02 48100463, Fax: + 39 02 45485034, e-mail: sales@altamirahrm.com . “You” or “Your” means the company or other legal entity for which you are entering into the Agreement. “Your Data” means all electronic data or information submitted by You to the Purchased Services.

2. FREE TRIAL

We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the 30-day free trial period for which you registered or (b) the start date of any Purchased Services ordered by You.  Any data You enter into the services, and any customizations made to the services by or for you, during your free trial will be permanently lost unless you purchase a subscription to the same services as those covered by the trial, purchase upgraded services, or export such data, before the end of the trial period. You cannot transfer data entered or customizations made during the free trial to a service that would be a downgrade from that covered by the trial (e.g., from Altamira enterprise to Altamira one). It is understood that during the free trial the services are provided for evaluation purposes only and that You should not rely on the delivery of such services for actual business purposes. You undertake to review the User Guide during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.

3. PURCHASED SERVICES

3.1. Provision of Purchased Services.
We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term, provided that advance payment thereof is received. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.

4. USE OF THE SERVICES

4.1 Our Obligations.
We shall: (i) provide to You basic support for the Purchased Services at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which we shall give at least 8 hours notice via the Purchased Service and which We shall schedule to the extent practicable during weekend hours form 6.00 p.m. Continental Europe Time Friday to 3.00 a.m. Continental Europe Time) or, (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving solely Our employees), or telephone/Internet service provider failures or delays, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
4.2. Your Obligations.
You shall (i) be responsible for Users’ compliance with this Agreement and the User Guide, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not  (a) use the Services to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (b) use the Services to store or transmit Malicious Code, (c) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (d) attempt to gain unauthorized access to the Services or their related systems or networks. 4.3. Relationship with Third Parties.  It is understood that the Services are offered only to You and the fees are contracted on such assumption and according to the other specifications of the Order. You shall not (a) make the Services available to anyone other than Users, or (b) sell, resell, rent, give or lease the Services.

5. FEES AND PAYMENT FOR PURCHASED SERVICES
5.1. User Fees.
You shall pay all fees specified in all Order Forms hereunder and any subsequent fees due hereunder at the then applicable rates. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in Euros (ii) fees are based on services purchased and not actual usage, and (ii) the number of User subscriptions or the space in the database purchased cannot be decreased during the relevant billing period stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and  the monthly periods remaining in the subscription term.
5.2. Invoicing.
An invoice will be issued for the initial billing period selected by You and, thereafter, on the first day of each subsequent billing period, until the Agreement is terminated in accordance with Sec. 11 hereof. All invoices are payable at sight. 5.2. Payment.
You will provide Us with valid and updated credit card information, or with a valid payment order to our account (currently c/o Intesa Sanpaolo, IBAN: IT79 Z030 6901 6181 0000 0005 426, SWIFT BCITITMM) or alternative settlement method authorized by Us. If You provide credit card information to Us, You authorize Us to charge such credit for all Services listed in the Order Form. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. 5.4. Suspension of Service. If any amount owing by You under this Agreement is 10 or more days overdue, We may, without limiting your payment obligations or Our other rights and remedies, suspend Our services to You under Sec. 1460 Civil Code until such amounts are paid in full.

6. PROPRIETARY RIGHTS

6.1. Reservation of Rights.
Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including (but not limited to) all related intellectual property rights to the Web-based applications and platform provided by Us. No rights are granted to You hereunder other than as expressly set forth herein.
6.2. Protection of Proprietary Rights.
You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services. 6.3. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data. 6.4. Suggestions. We shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual non-exclusive license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.

7. CONFIDENTIALITY

7.1. Definition of Confidential Information.
As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. In no event the fact that a contract exist between the parties shall be deemed a Confidential Information; either party may freely disclose the fact that the Parties have a business relationship.
7.2. Protection of Confidential Information.
Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
7.3. Protection of Data.
In accordance with the law referred to as Privacy Law D.Lgs. 196/03 (vo 30-06-2003) based on the European Union Directive (95/46/CE) You are the “data controller” (“titolare”) of the candidates or employees database you will create using Our Services. Therefore, You shall be responsible, on an exclusive basis, for complying with such law 196/03 as amended, including but not limited to the drafting of appropriate information to candidates, the acquisition of their consent to treatment, the notification to the relevant authority, the appointment of agents, processors and administrators of the system, and the adoption of security measures according to the law. You hereby appoint Us as data processor (responsabile del trattamento) under the Privacy Code only for the processing of the data of the candidates or employees registered in the database provided by Our Services: therefore, in connection therewith, We shall be obliged only to carry out the operations necessary to that effect and to adopt the security measures mandated by law. You and us are autonomous controllers for the processing of data different from those above. In respect thereof You and Us agree to abide by the Privacy Code and authorize each other to refer such data to third parties (such as banks, advisors, lawyers and the like) in connection with the formalities related to the service agreement between the parties. 7.4. Mandatory Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is mandated by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such mandated disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

8. WARRANTIES
8.1. Our Warranties. We warrant that the Services shall perform materially in accordance with the User Guide. Except as expressly provided herein, We make no further warranties of any kind, whether express, implied, statutory or otherwise, including any warranties of fitness for a particular purpose, to the maximum extent permitted by applicable law.
8.2. Your Warranties. You warrant that You are not a direct competitor of Ours and that You are not accessing the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

9. CLAIMS

9.2. Indemnification. You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data, or Your use of the Services in violation of this Agreement, infringes or misappropriates the rights of a third party or violates applicable law, and shall indemnify Us for any damages awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such Claim.
9.2. Notification of Claims. Should  any Claim be made or brought against You by a third party alleging that the Services infringe or misappropriates the rights of a third party or violate applicable law, you agree to (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defence and settlement of the Claim; and (c) provide to Us all reasonable assistance.

10. LIABILITY – CO-OPERATION

10.1. Liability.
We shall be liable only for gross negligence or wilful misconduct. Unless otherwise mandated by the law, our liability hereunder shall not exceed the net amount paid by You for the Services in the 12 months preceding the event originating such liability.
10.2. Information Obligations.
Irrespective of paragraph 10.1 above, You agree to notify to Us in writing without delay (a) at the beginning of the free trial period of the applicable Service or (b) on the start date of any Services ordered by You if the aggregate foreseeable damages arising out of or related to this Agreement for failure to deliver the Services as warranted herein exceed the net amount payable by You hereunder for the Services during a period of 12 months.
10.3. Notification of Failures, Errors and Related Damages.
In order to allow Us promptly to correct failures and errors in the Services and limit any related damages, You agree immediately (and in any event within three days) to notify Us in writing any such failures and errors and provide information about the kind and size of foreseeable damages related thereto. You further agree to take all reasonable measures to limit any related damages to the maximum possible extent. Our sole obligation shall be to intervene to cure to the maximum possible extent such failures and errors on the same business day of Your notification.

11. TERM AND TERMINATION

11.1. Term of Agreement.
User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.  Any such pricing increase shall not exceed 7% over the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.
11.3. Termination for Cause.
A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.4. Refund or Payment upon Termination.
Upon any termination by You for cause, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, We may withhold any prepaid fees. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
11.5. Return of Your Data.
Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription, We will make available to You for download a file of Your Data along with attachments in their native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.

12. FINAL PROVISIONS

12.1. Governing law and jurisdiction.
The Agreement will be construed in accordance with the laws of Italy and the parties agree to submit to the exclusive jurisdiction of the Courts of Milan.
12.2. Manner of Giving Notice.
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be given through: (i) personal delivery, (ii) registered mail, (iii) facsimile, or (iv) e-mail (provided e-mail shall not be sufficient for notices according to paragraphs 9, 10 and 11). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.
12.3. Relationship of the Parties.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.4. No Third-Party Beneficiaries.
There are no third-party beneficiaries to this Agreement.
12.5. Waiver and Cumulative Remedies.
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.6. Severability.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.7. Assignment.
We reserve the right to assign this Agreement in its entirety (including all Order Forms) to any Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Our assets.
12.8. Entire Agreement.
This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Anything to the contrary notwithstanding, We reserve the right to modify from time to time these general terms and conditions. Such changes shall be notified to you in writing and shall become effective: (a) within 30 days, if no objection from you is notified within such term, or (b) when you accept them placing a new Order Form, whichever is earlier.

Agreed and accepted

For specific approval of paragraphs: Warning, 4.1. Our Obligations, 4.3. Relationship with Third Parties,  7.2. Protection of Confidential Information, 7.3. Protection of Data, 8.1. Our Warranties,  10.1. Liability, 10.3. Notification of Failures, Errors and Related Damages, 11.1. Term of Agreement, 11.5. Return of Your Data, 12.1. Governing law and jurisdiction, 12.8. Entire Agreement.

Agreed and accepted

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