General terms and conditions of use of the iCast Lube EVO App
General terms and conditions of use of the iCast Lube EVO App
GENERAL CONDITIONS OF THE LICENSE
OF THE SOFTWARE iCAST LUBE ANALYZER
1. Definitions
In these general terms and conditions (the “General Terms”) the terms and expressions specified below will have the meaning attributed to them in the following list.
• “Client” means the entity who purchases the Software License for its professional use or the licensee of the Software.
• “Error” means an event that requires technical support due to a malfunction or failure to use the Software and caused, with a high probability, by a defect or by an error of the Software itself.
• “Fee” means the consideration for the Software License that the Client will pay to the Supplier in a single advance solution whose payment is necessary to receive the Token required for the start of the Software and, therefore, for the use of the Software.
• “Order of License” means the order sent by the Client to the Supplier for the Software License. The Order of License is governed by the General Terms.
• “Party” means without distinction the Supplier or the Client.
• “Parties” means the Supplier and the Client.
• “Personal Data” means the data and information as defined in Article 16 (Privacy).
• “Privacy Policy” means the privacy policy available on the website www.baraldi.com.
• “Software” means the software application ordered by the Client and consisting in the software called “iCast Lube Analyzer” distributed exclusively by the Supplier who holds all the rights to use the Software and to grant the license of the Software to third parties. The definition of Software includes also the manuals available and the other documents which will be delivered to the Client. Sometimes it will be used the definition of “Auto-Installing Software”, which is the Software itself, that, following the payment of the Fee and the receipt of the Token by the Supplier, is downloaded and installed directly by the Client on his personal computer.
• “Software License” means the license of the Software.
• “Supplier” means the company Baraldi S.r.l., C.F. 02019880372, with registered office in 40024 Castel San Pietro Terme (BO), Osteria Grande, via Lombardia 2/I/L, which has the exclusive right to distribute the Software and all the commercial rights relating to the Software.
• “Technical Installation Requirements” means the requirements of the hardware and the software which are necessary for the proper functioning of the Software.
• “Third Party” means any person or legal entity other than the Parties.
• “Token” means the USB device that will be sent to the Client in order to use the Software. The Token allows the use of the Software on only one Personal Computer at a time.
• “Update” means any update of the Software released by the Supplier for the correction of Errors.
• “Upgrade” means the developments and/or upgrades and/or evolutions of the Software that may be released by the Supplier and whose use, if purchased, will be governed by these Terms and Conditions.
2. Premises
These General Terms regulates the Software License which is the object of the Order of License that the Client has filled and sent to the Supplier. Before of filling the Order of License, the Client has received all the necessary information about the Software, and he has been fully informed regarding its nature and its functions, the limits of its use. Following the analysis of such information the Client considers the Software suitable for its needs. The Client declares to use the Software in carrying out its business and/or professional activity.
3. Definitions and Premises
The Definitions and the Premises form an integral and substantial part of these General Terms.
SECTION I - OBJECT, USE AND INTELLECTUAL PROPERTY RIGHTS
4. Object
4.1 The Supplier, against payment of the Fee, grants to the Client, who accepts, a Software License as specified in the Order of License. The Software License is regulated by the terms and conditions provided in these General Terms.
4.2 The Software License grants the Client with the non-exclusive and non-transferable permanent right to use the Software. The Software License and the relevant rights are not transferable by the Client except in case of merger by incorporation of the Client and/or of transfer of its on going concern.
4.3 The Auto-Installing Software is installed directly from the Client on its personal computer following the payment of the Fee and the receipt of the Token sent by the Supplier. The Software License does not entitle the Client to obtain the source codes of the Software and/or to use the related logical and/or project documentation.
4.4 The Software License does not entitle the Client to obtain the customization, implementation, development or modification of the Software. The Parties may agree the personalization, implementation and/or additional or related developments on the basis of separate agreements.
4.5 Subject to the provisions of Article 4.4, during the period of the Software License the Supplier may provide the Client with the Upgrade at the terms and conditions that will be negotiated and agreed between the Parties. The use of the Upgrade will be governed by these General Terms.
5. Terms of use
5.1 The Supplier and the manufacturer of the Software shall retain all the rights on the Software, as specified in the following Article 8, except those expressly granted to the Client under these General Terms.
5.2 In no case, unless with the written consent of the Supplier, the Client will modify, adapt, adjust, integrate or incorporate the Software, even if such acts are necessary for the use of the Software under the present General Terms and/or to correct an Error.
5.3 It is forbidden for the Client to decompile, decode or disassemble and/or to allow any third party to decompile, decode or disassemble the Software or any part thereof, except if the Client needs to obtain the Software’s connection with another product created independently, provided that, in such case, the Client shall obtain from the Supplier, in writing, the relevant authorization and the information necessary to such extent.
5.4 The Software is granted for use as an unique product. Any single component can not be separated to be used in different processing environments or by third parties.
5.5 Client is not allowed to violate and/or manipulate the engineering of the Software, to decrypt the Software, to try to find connection routes, or to discover codes and/or to violate any protective measures to facilitate unauthorized use, nor to access into the Software through any kind of system.
5.6 It is forbidden to the Client to copy the Software or part of the Software. The Software is designed to be used not simultaneously on two or more different computers of each Customer, even if such other personal computers are owned and/or in the availability of the same Client.
5.7 The Supplier has the right to carry out any necessary inspection on the Client's system to verify that the Software License is used complying in full with the Order of License.
6. Client’s Obligations
6.1 The Client undertakes to use the Software with the highest degree of care and it guarantees that nobody will extract or make a copy of the Software and/or make a use different from the one provided in the General Terms.
6.2 The Client undertakes to guarantee the protection of the rights of exploitation and of use of the Software which are upon the Supplier, as well as not to cancel, modify or remove the names and trademarks of the Supplier which are on the Software.
6.3 The Client agrees to comply with the Terms of Use.
7. Choice of the Software and check of the installation environment
7.1 The Client is the only responsible for the choice of the Software and is responsible for verifying that the functions of the Software correspond to its needs, necessity or expectations. The Client is responsible for the solution adopted and is aware that the Auto Installing Software can be run only on a personal computer of the Client having the Technical Installation Requirements.
8. Intellectual Property Rights
8.1 The Software is protected as intellectual property by the law n. 633/41, and by the laws and/or provisions which preserve intellectual property, commercial secrets, trademarks and fair competition.
8.2 All rights to exploit and use the Software are upon the Supplier, including the right to make changes or additions to the Software or to incorporate the Software into another computer program.
8.3 The trademark and/or the signs which are used to commercialize the Software are of exclusive property of the Supplier and they cannot be autonomously used by the Client.
SECTION II -FURTHER CONDITIONS OF USE OF THE SOFTWARE
9. Software Installation
9.1. The Software will be installed and started by using the Token by the Client. The Token shall be sent to the address of the Client by the Supplier following: (i) the Customer’s approval of these General Terms and the acceptance of the Order of License by the Supplier (ii) the full payment of the Fee. Token must be kept with care by the Client and returned to the Supplier in any case of termination of the License of Use.
9.2 The Supplier shall not be liable in any case where the personal computer and/or the hardware of the Client does not support the Auto Installing Software.
9.3 The Client is responsible for the installation, training and start of the Software.
10. Change of Configuration
10.1 Any change to the initial configuration indicated in the Order of License which should affect the number of personal computers, of users or of the modules which are used, must be previously agreed with the Supplier and formalized in a special new Order of License that, once sent by the Client and accepted by the Supplier, will allow the issue of the new Token.
10.2 These General Terms will apply to the new Order of License, unless otherwise stated.
11. Fee
11.1 The Fee is due for the use of the Software and for the entire term of the Software License. Any Upgrade is included.
11.2 Unless otherwise agreed, the Fee must be paid by the Client to the Supplier at the formulation of the Order of License.
11.3 Any failure to pay the Fee will prevent the Client to receive the Token and, therefore, to use the Software.
12. Warranties
12.1 The Supplier warrants exclusively that the Software can perform the operations described and illustrated in the relevant technical and/or applicative descriptions and in the manual instructions which have been supplied in writing and/or online and in the Terms of Use. The Client also notes that, at present, it is not possible to guarantee the realization of software which are absolutely immune from any fault or defect.
12.2 The Supplier does not warrant that the Software will work in any combination that may be chosen for its use by the Client. The Supplier does not warrant that the functions of the Software will satisfy all the present and future needs of the Client.
12.3 The change of the certified installation environment and/or the absence or failure of the Technical Installation Requirements for the proper functioning of the Software will result in the loss of the warranties by the Supplier.
12.4 The warranty operates only in case of a “correct use” of the Software (including any new instruction that the Client undertakes to comply with in a timely manner), where “correct use” means that the use is in accordance with the operating rules and with the Terms of Use which have been and/or will be communicated to the Client.
12.5 The warranty doesn’t operates if the defects are determined by any act of misuse of the Software and/or by negligence or imprudence of the Client, Client’s breach of the General Conditions, violation of the Software, modification, integration, incorporation of the Software or similar activities carried out by the Client or by third parties or caused by accident or force majeure.
13. Limitation of Liability
13.1 Except in case of fraud and/or gross negligence, the liability, both contractual and for tort, of the Supplier and/or of its employees, directors or managers for direct damages, including those arising out of third party’s claims, that are suffered by the Client and which derives from any breach and/or improper performance of the obligations of the Supplier and/or from any Error and/or from any malfunction of the Software and/or from any breach of the warranties, is limited to a value equal to the Fee.
13.2 Except in cases of fraud and/or gross negligence it is understood that Supplier will not be liable in any case for any indirect damages of any kind, including any consequential economic loss and/or loss of profits incurred by the Client and/or by any Third Party. Also in this case, in any case, the Supplier's liability is limited to a value equal to the Fee.
14. Assignability
14.1 It is forbidden for the Client to assign or to transfer the License to third parties, even if it is any related, affiliated or controlled company.
14.2 It is forbidden for the Client to dispose, at any title, with or without consideration, temporarily or permanently, to any third party the rights relating to the Software or to any part of it and to transfer to third parties any copy of the Software as well as it is forbidden to dispose of any supporting documentation or user manual in favor of any third party.
15. Confidentiality and Communication
15.1 The Client is required not to disclose in any way to third parties any information concerning the Software or the documentation relating to the Software, in particular the contents and methodologies of the Software. The Client shall do everything in his power in order to prevent Third Parties from accessing to such information.
15.2 The Client shall promptly communicate to the Supplier any fact or suspect regarding the theft of the Software of the Token or its duplication by Third Party.
16. Privacy
16.1 The use of the personal data (the “Personal Data”) of the Client is ruled by the Privacy Policy to which reference is expressly made.
17. Termination and penalties
17.1 Without prejudice to ask the reimbursement of any damage that may have been suffered, the Supplier has the right to terminate the Software License and the Order of License according to and for the purposes of Article 1456 of the Italian Civil Code through a written communication sent to the Client by registered letter or by equivalent means, with effect from the relevant receipt, if the Client fails to perform one of the following obligations: 1) breach of Article 5 (Terms of Use); 2) breach of Article 6 (Client’s Obligations); 3) breach and/or misuse of the Token; 4) failure to pay or inaccurate payment of the Fee; 5) breach of Article 15 (Confidentiality and Communication).
17.2 In the event of termination due to any breach of the Client, the Supplier will be entitled to receive, as a penalty, the payment of a lump sum equal to the double of the Fee, without prejudice neither to ask for the indemnity of any other damage that he should suffer or to any other action that can be filed against the Client.
17.3 In the event of termination, Client will lose the right to use and enjoy the Software License, must return to the Supplier the Token and all copies of the Software in his possession and delete any element of it from each of its personal computers and return all the relevant material. If the Client fail to duly comply with this obligation, he will be required to pay a further sum, as a penalty, which the parties have judged to be fair, equal to the double of the Fee.
18. Suspension of the Software License
18.1 Without prejudice to the right to terminate the Software License the Supplier has the right to block the Token and to stop the use of the Software in the following cases: 1) installation of the Software on a system other than the one indicated in the relevant Order of License; 2) infringement of the restrictions and/or limits regarding the access into the Software; 3) any failure to pay or inaccurate payment of the Fee.
19. Duration
19.1 The Software License shall be effective from the date of installation of the Software and will last for an indefinite period of time.
20. General Provisions
20.1 These General Terms represent and contain the sole agreement between the Parties regarding the Software License and, therefore, they supersede and replace any other agreement between the Parties in relation to the objects provided herein.
20.2 Any Party’s tolerance in respect of conduct of the other Party in breach of these General Terms shall not constitute waiver of the rights deriving therefrom.
21. Applicable Law and Competent Jurisdiction
21.1 The Order of License and the Software License are subject to and shall be construed and enforced in accordance with the Italian law and the Court of Bologna, Italy, will have exclusive jurisdiction in any action arising out of or in connection (eg. concerning the interpretation, execution, application and termination of effects) with the Order of License and the Software License.