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General conditions of sale
GENERAL CONDITIONS OF THE LICENSE
OF THE SOFTWARE iCAST TUBE ANALYZER
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. Further definitions are contained in other articles of the General Terms or in the clauses of the Order of License.
• “Client” means the entity who purchases the Software License for its personal use. The Client as better indicated in the Order of License is 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 and/or according to the modalities specified in the Order of License and whose payment is necessary to receive the numeric code required for the installation of the Software (the ”Password”) 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 and the Client.
• “Parties” means the Supplier and the Client once the Order of License has been signed.
• “Personal Data” means the data and information as defined in Article 16 (Privacy).
• “Software” means the software application ordered by the Client and composed by the software called "iCast Tuber 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 Password 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, Baraldi has the exclusive right to distribute the Software and all the commercial rights to use the Software itself.
• “Third Party” means any person or legal entity other than the Parties.
• “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.
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 and 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 - CONDITIONS APPLICABLE TO THE SOFTWARE LICENSE
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 grant the Client with the non-exclusive and non-transferable right to use the Software for the time specified in the Order of License. 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 password 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, in case of renewal of the Software License the Supplier may provide the Client with the upgraded version of the Auto-Installing Software 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.
5.1 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 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 code.
5.6 It is forbidden to copy the Software or part of the Software. The Software shall be used in one personal computer for each Client. It is forbidden to use the Software on more than one personal computers, 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.
7. Choice of the Software and check of the environment of installation
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 can be run on the Personal Computer indicated by the Client who has checked the presence in such Personal Computer of the Technical Installation Requirements. All the above considered, the Supplier does not warrant that the functions of the Software will satisfy all the present and future needs of the Client.
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 used by the Client.
SECTION II - COMMON CONDITIONS
9. Software Installation
9.1. The Software will be installed by entering the password by the Client. This password will be communicated in writing by the Supplier to the Client following: (i) the Customer’s subscription of these General Terms, either in writing or by an online acceptance; (ii) the full payment of the Fee.
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 launch 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 filled and signed by the Client, will allow the issue of the new password.
10.2 These General Terms will apply to the new Order of License, unless otherwise stated.
11.1 The Fee is due for the use of the Software and for the entire term of the License Order.
11.2 The Fee must be paid by the Client to the Supplier at the subscription of the General Terms and of the Order of License.
11.3 In case of renewal of the Order of License, the Fee shall be discussed and determined by the Parties.
11.4 The payment of the Fee must be made according to the terms and to the modalities specified in the Order of License.
11.5 Any failure to pay the Fee will prevent the Client to receive the necessary codes for the installation of the Software.
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 Client also notes that, at present, it is not possible to guarantee the realization of a software which is absolutely immune from any fault or defect.
12.3 The change of the certified installation environment, the absence or failure of the prerequisites required for the proper functioning of the Software will result in the loss of the warranties by the Supplier.
12.5 The Warranty doesn’t operates whenever the defects are determined by any act of misuse of the Software and/or by negligence, imprudence, Client’s imperfection, violation of the Software, modification, integration, incorporation or similar 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, is limited to a value equal to the Fee indicated in the Order of License.
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.
14.1 It is forbidden for the Client to assign or to transfer the Order of 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, temporary of final, of any Third Party’s right 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 or its duplication by Third Party.
16.1 The use of the personal data (the “Personal Data”) of the Client that the Supplier may perform may consist of their collection, registration, organization, storage, processing, modification, selection, extraction, comparison, use, interconnection, blocking, communication, dissemination, deletion and destruction or in the combination of two or more of these operations. The Supplier uses the Personal Data of the Client for the purpose of finalizing the contract for the use of the Software License and/or for the performance of marketing, information, commercial promotion or any use related to the activity of the Supplier, including statistical purposes and market analysis. By accepting the present General Terms the Client gives the express consent to the Supplier for processing the Personal Data in the manner indicated above.
16.2 The Supplier is the holder of the process of the Personal Data and/or of any other data which will be collected. The data will be used lawfully and in a correct manner, in order to guarantee their security and confidentiality; the processing of Personal Data can be done by means of paper, computer and through computerized instruments, including Internet. The Personal Data may be communicated and/or disseminated, even outside the EU, to, among the others, (i) third parties who carry out specific activities in the interest of the Supplier to reach one of the purposes set out above; and/or (ii) the subsidiaries, associates, shareholders, controlled and/or and controlling company of the Supplier or to its sales network (agents, brokers, dealers, distributors, franchisors, etc.) for the above stated purposes.
16.3 Pursuant to Article 7 - Right of Access to Personal Data and Other Rights – of the Legislative Decree 30 June 2003 n 196, the Client is entitled to:
(i) obtain the confirmation of the existence of Personal Data concerning him, even if not yet registered, and their communication in an intelligible form;
(ii) obtain the indication of: (a) the origin of Personal Data; (b) the purposes and methods of processing; (c) the logic applied when processing by means of electronic instruments; (d) the identification details of the holder, managers and designated representative; (e) the subjects or categories of persons to whom the Personal Data may be communicated or who may become aware of it as a designated representative in the territory of the State, as persons in charge or as person appointed by the Supplier.
(iii) obtain the: (a) updating, rectification or, where relevant, the integration of Personal Data; (B) cancellation, transformation into anonymous form or blocking of the data processed in violation of law, including those that it is not necessary to use to the purposes for which the data were collected or subsequently processed; (C) the attestation that the transactions referred to in points (a) and (b) have been made known, including their content, to those to whom the Personal Data have been communicated or disseminated, with the exception of the case where such fulfillment is impossible or involves the use of means clearly disproportionate to the protected right;
(iv) oppose, in whole or in part: (a) for legitimate reasons to the processing of Personal Data concerning the Client itself, even though relevant to the purpose of the collection; (B) to the processing of Personal Data concerning the Client for the purpose of sending advertising material or direct sales or for conducting market research or commercial communication.
16.4 In addition to the Personal Data, the Supplier may collect and use the technical data that may be detected during the use of the Software and/or information acquired by the Client during the use of the Software. Such data and/or information will be used to improve the Software.
16.5 If a Third Party’s consent is necessary to allow the use of their Personal Data by the Supplier for the purposes of the Order of License, the Client will have to make sure that such consent is issued.
17. Termination and penalties
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 full 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 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 entire Fee, save for any other damage.
18. Suspension of the Software License
18.1 The Supplier has the right to block the password 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 non correct payment of the Fee.
19.1 The Software License shall be effective from the date of subscription of the Order of License and will have the duration indicated in the Order of License.
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 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. Such jurisdiction shall be exclusive.