General conditions of contract for the MPS Monitor printer monitoring service

MPS Monitor software is an exclusive property of MPS Monitor SRL, who grants license to Customers and Partners in order to deliver monitoring and management services on printing devices.

Services are delivered at the conditions below:

1. SCOPE OF THE CONTRACT AND DESCRIPTION OF THE SERVICE

1.1. These General Conditions of Contract (hereinafter also “General Conditions”) govern the supply by MPS Monitor srl (hereinafter also “MPS Monitor”) of the service of computerized and automated management of data and alerts related to printing devices (hereinafter also “Service”) upon payment of a fee, fully described in the Service Proposal, which MPS Monitor provides to the parties referred to as “the Customer” or “the Customers”. The General Conditions, the Service Proposal and the other annexes to the offer are an integral part of the Contract for the supply of the Service (hereinafter also “Contract”).

1.2 “Contract” means the agreement for the supply of the Service concluded by MPS Monitor and the Customer and governed by these General Conditions, which refer to and constitute an essential condition of the contract, by the particular conditions of any MPS Monitor proposal accepted in writing by the Customer and by the various terms and conditions agreed from time to time in writing between the parties.

1.3. The Service consists of the supply by MPS Monitor to the Customer of network-based monitoring and computerized and automated management of data and alerts relating to printing devices installed at the premises of the Customer or of its users. The characteristics of the Service and the operating procedures for its delivery and use by the Customer are further described in the Service Proposal and in the annexes to the offer.

1.4 The Customer may operate the Software solely through remote access. MPS Monitor will provide the Customer with access codes, and MPS Monitor guarantees their maximum secrecy.

1.5 MPS Monitor shall not be liable towards the Customer and/or its users for malfunctions and failures of the machine on which the software resides, since the hosting service is entrusted to a third party, as indicated in Art. 5 of these General Conditions.

1.6 The hardware is not covered by any insurance for any consequences related to failure, such as but not limited to loss of data or virus intrusion.

1.7 For the purposes of this Contract, the Parties acknowledge that the Customer’s users are, for all intents and purposes, including legal ones, different and independent parties from the Customer, and that these users are contractually bound solely to the Customer, without any contractual relationship with MPS Monitor.

2. SERVICE ENROLMENT AND ACTIVATION PROCEDURES

2.1. The Contract will be considered completed when the Service Proposal reaches MPS Monitor in a manner that certifies its reception, dated and signed by the Customer for acceptance of the provisions thereof and of these General Conditions considered individually and as a whole. MPS Monitor will promptly notify the Customer by email regarding the activation of the Service, which will take place within three (3) working days of receipt by MPS Monitor of the Service Proposal signed and accepted in its entirety.

2.2. The Customer undertakes to provide MPS Monitor with a valid email address upon signing the contract.

3. LICENCE TO USE THE MPS MONITOR SOFTWARE

3.1. The software covered by the Contract that these General Conditions refer to, called MPS MONITOR and aimed exclusively at the management and operation of the Service, is the exclusive property of MPS Monitor.

3.2. By signing the Contract, MPS Monitor grants the Customer a user licence for the above software (“the Software”) for the duration of and on the number of devices covered by the Service.

3.3. With the user licence, the Customer acquires the right to use the Software, in a non-exclusive, non-transferable manner, together with the relevant user documentation in electronic form provided by MPS Monitor, within the limits and according to the procedures covered by the Contract.

3.4. The licence does not include the right to obtain the programs in source code or to have access to their logic and/or design documentation.

3.5. The licensed Software can only be used by the Customer and its users through the Internet connection between the Customer’s and its users’ computers and a dedicated server, including a virtual one, made available by MPS Monitor. This means that the Software granted under a user licence will be partially installed on a server physically located at MPS Monitor’s hosting provider, which will be mentioned below. This server will be made available exclusively for this purpose, and partly installed by the Customer and its users on their computers for this specific use.

3.6. The software has been specifically chosen and requested by the Customer based on the information it provided regarding its commercial and technical requirements, as well as the technical characteristics of its computer and that of its users, through which the program will be used. It follows that the Customer remains solely responsible for the accuracy of the information provided to MPS Monitor and/or its authorized reseller.

3.7. For itself and for its users, the Customer undertakes not to reproduce, modify or translate the Software, even partially.

3.8. The Software referred to in the Contract that these General Conditions are an integral part of has no trial period, unless otherwise agreed.

3.9. According to its technical characteristics and specifications, the Software referred to in the Contract is designed to pursue the aims specified in the Service Proposal, in these General Conditions and in the technical documentation of the Software itself. Any other and different use of the Software is not guaranteed or permitted by MPS Monitor. As such, any other and different application is not specifically contemplated.

3.10. The web server-side Software activation is carried out by MPS Monitor. It is understood that MPS Monitor cannot be held responsible for the impossibility of use of the Software by the Customer and/or its users if this stems from failed Software installation and configuration at the premises of the Customer and/or of its users. The latter operations must in fact be carried out under the responsibility and at the expense of the Customer and/or its users.

3.11. Following activation and installation of the Software by MPS Monitor, solely for the part that it is responsible for, and successful completion of this phase, the program is deemed accepted and tested by the Customer and/or its users for all legal intents and purposes.

3.12. In particular, the Customer and/or its users are expressly forbidden from incorporating the Software into another software and assigning this licence to third parties.

4. SOFTWARE UPDATES

4.1. Within the limits of the duration and number of devices covered by the user licence referred to in the Contract and without prejudice to the validity and enforceability of these General Conditions, the agreed price includes all Software updates, improvements, additions and new versions that may be developed by MPS Monitor during the term of the Contract.

4.2. The above service will be provided to the Customer solely based on the latest standard version of the software supplied to it by MPS Monitor, without taking into account any changes or additions made, even through MPS Monitor, by the Customer and/or its users to the programs already granted under licence.

4.3. The Customer undertakes to accept and have its users accept the activation and installation of any updates and/or new versions of the Software provided by MPS Monitor, noting that, otherwise, the Service could become completely or partly unusable or ineffective.

4.4. Any new version of the Software and any Software updates prepared by MPS Monitor will be subject to the same conditions agreed for the original Software and thus contained in the Contract.

4.5. MPS Monitor is responsible only for the part of activation and installation of the Software updates attributable to it i.e. for what happens at the server connected via the Internet with the Customer’s and/or its users’ computers.

4.6. If, due to an express request by the Customer, it becomes necessary to seek the assistance and/or collaboration of MPS Monitor or of third parties authorized and appointed by the latter to check any malfunctions linked to the activation and installation of the Software updates, the Customer and/or its users will make available to MPS Monitor the computer on which it can verify the correct installation and activation of the Software updates. Having successfully completed this last phase, the updates will be deemed for all legal purposes accepted and tested by the Customer and/or its users.

4.7. The Customer’s users can take advantage of the software update and assistance services provided by MPS Monitor as users of the Customer for as long as they remain such, without having any right to claim any services directly from MPS Monitor. MPS Monitor assumes no obligation nor is it in any way responsible towards the Customer’s users.

5. PHYSICAL LOCATION OF THE SYSTEMS

5.1. The servers supporting the operation of the Service under the Contract are located at the Server Farm of British Telecom Italia SPA, in Settimo Milanese – Milano (Italy), Via Darwin, 85; the Customer’s and/or its users’ data will also be stored on those servers. The Customer will not be allowed access to the Server Farm.

5.2 The hardware on which the server is hosted that stores the Customer data is covered by the technical support provided by its manufacturers, according to the terms and procedures indicated by the manufacturers themselves. No other assistance is due from MPS Monitor. No work may be performed on the hardware of the assigned machine.

5.3. MPS Monitor reserves the right to transfer the servers to another location or make use of external Providers, at its discretion, giving prompt written notice to the Customer, also by email.

5.4. If, for the reasons set forth in this article, it becomes necessary to transfer any personal data to third countries, this will only happen when the suitability profiles identified by Art. 25, paragraph 6, and Art. 26, paragraph 4, of Directive 95/46/EC are fulfilled and where an adequate level of protection in the countries in question is guaranteed, so as not to compromise the confidentiality of the private sphere of the concerned parties.

6. OWNERSHIP, CONFIDENTIALITY AND SECRECY

6.1. The Software under this Contract remains the sole property of MPS Monitor. It is therefore strictly forbidden for the Customer and/or its users to sell, sublicense, transfer or in any other way make available this Software to third parties for any reason, with the sole exception of what has been explicitly agreed in the Service Proposal.

6.2. The Customer undertakes, for itself and its users, not to modify the Software or merge it, in whole or in part, with other programs.

6.3 The user licence does not grant any right or title to the original source program. All the techniques, algorithms and procedures contained in the Software and in the related documentation constitute confidential information owned by MPS Monitor and cannot be used for purposes other than those specified in the Contract.

6.4. The Customer undertakes, for itself, its employees and its users, to take all appropriate and necessary measures to ensure the confidentiality and secrecy of the technical information contained in the Software and its documentation, undertaking not to allow third parties to make occasional or even partial use, take copies of or consult it.

6.5. The Customer, its employees and its users are obliged to maintain absolute confidentiality, even after the expiry or termination of the Contract, over the information and the industrial and commercial secrets of MPS Monitor that they may become privy to, directly or indirectly, due to or at the time of the Contract being made.

6.6. All the trademarks, registered and otherwise, as well as any and all other distinctive marks or names appearing on the Software and all the related documentation, hardcopy or otherwise, supplied and related with it remain the property of MPS Monitor. Signing the Contract does not result in the Customer and/or its users having any rights over the above.

6.7. The Customer undertakes, for itself, its employees, and its users, not to destroy, alter or move MPS Monitor trademarks, distinguishing marks and names.

6.8. Without prejudice to what is provided for the industrial and commercial secrets referred to in paragraph 6.5, the Parties undertake, including for a period of 3 years following termination for any reason of this Contract, to:

(a) keep confidential the information obtained during the performance of the Contract;

(b) not disclose or disseminate, in whole or in part, without the written consent of the other Party, such information to others, except to its employees, contractors, directors and third parties acting on behalf of the other Party, who are involved in providing the Service covered by this Contract;

(c) manage the confidential information acquired according to the maximum degree of privacy and confidentiality, circulating it only internally and only where its use is necessary for reasons connected with the Contract and not for its own profit or for the benefit of third parties.

The Parties also undertake not to disclose to third parties without the other Party’s consent any information provided in the course of the Contract. The obligation of confidentiality also extends to personnel, collaborators, auxiliaries, subcontractors, consultants and all parties involved in the provision of the Service attributable to the receiving Party, which shall ensure that the use of the transmitted data is such as to prevent any disclosure of data, information or news by the aforementioned parties. Confidential Information does not include information for which the receiving Party can demonstrate that the information is (i) ordinary and obvious; (ii) publicly accessible; (iii) already in the possession of the receiving Party; (iv) revealed by the disclosing Party to a third party without any restriction on its further disclosure; (v) legitimately revealed to the receiving Party by a third party without any restriction on its disclosure; (vi) disclosed following an injunction or court order, or to satisfy a legal obligation, provided that the Party receiving the request gives notice to the other Party in good time before disclosing the information, to the extent not prohibited by law.

7. CONTRACT DURATION, WITHDRAWAL AND PROHIBITION OF TRANSFER

7.1. The Contract is concluded as described in Art. 2 of these General Conditions and shall remain in force indefinitely. The Contract shall be limited exclusively to the management of the number of printers (devices) covered by the Service.

7.2. Either party may terminate the contract, without obligation to state the reasons, by registered letter with return receipt or other equivalent means, to be sent to the other party at least thirty (30) days prior to the date of the intended withdrawal.

7.3. As an exception to the provisions of the above item, MPS Monitor may terminate without notice for just cause, meaning the violation of any article or clause of these General Conditions or of the Contract of which they are an integral part. 

7.4. In case of cancellation, MPS Monitor shall disable access to the Service within twenty-four hours from the moment when the withdrawal becomes effective and will cease the processing of personal data except for the processing of the data strictly necessary to complete the execution of the contract and to fulfil the statutory obligations.

7.5. The Customer cannot in any way or in any form transfer to third parties, even partially, the Contract that these General Conditions are an integral part of.

8. AVAILABILITY OF THE INFORMATION

8.1. The Customer will appoint MPS Monitor as Data Processor under Art. 29 of Italian Legislative Decree no. 196/2003 regarding the processing of data for which the Customer is the Controller, carried out in fulfilment of the Contract, as specified in the appointment letter.

8.2. MPS Monitor is committed to implementing all appropriate measures to ensure continued compliance with Italian Legislative Decree no. 196/2003 and the instructions given by the competent Authority in this regard, and to monitor their compliance, fulfil all the prescribed requirements and in general take all the measures and perform all the acts necessary for the precise application of the above regulations, with all the legal consequences.

8.3. The appointment of the Data Processor has the same duration as the Contract or the completion of the MPS Monitor Service decommissioning plan. The appointment is considered revoked upon dissolution of this Contract, whatever the reason. At the dissolution of the contractual relationship, MPS Monitor must cease all processing of data acquired, fulfilling without delay the instructions received from the Data Controller as regards the deletion or the transfer of the data. In particular, MPS Monitor must deliver all the databases regarding the Customer and destroy irreversibly the databases residing on its hardware platforms or in any other way stored and promptly notify the Customer, barring any legitimate need for protection of its rights, interests and reasons.

8.4. In any case of termination of the contractual relationship between the parties or suspension of the service, notwithstanding the provisions of the preceding paragraph 8.3, MPS Monitor may, upon specific authorization issued by each user, continue to use the databases relating to the data for which the user is Data Controller and make them fully available to the user in any other form and under any other agreement that the user may wish to conclude with MPS Monitor or with other MPS Monitor customers. The Customer hereby waives the right to raise any objection regarding the access to such data and its use.

8.5. MPS Monitor undertakes to fulfil the requirements and prohibitions referred to in Italian Legislative Decree no. 196/2003 also after the expiration or termination of the appointment of the Data Processor.

9. CONDITIONS AND RESTRICTIONS FOR SERVICE USE

9.1. Upon activation of the service, MPS Monitor will inform the Customer of the technical specifications, parameters, user numbers and security codes needed to access the Service.

9.2. The Customer undertakes to use and to have its users use the Service covered by the Contract that these General Conditions relate to and are an integral part of, under its own responsibility and expense:

• In accordance with the laws and regulations, including local ones, that regulate its operation and use;
• Only for lawful purposes;
• In observance of any instructions issued by MPS Monitor regarding the operation of the hardware and Software so that it may be used properly and appropriately.

9.3. The Customer acknowledges that, together with its users and jointly and severally with them, it is solely and exclusively liable for the activities carried out through the Service or directly or indirectly related to them, and in particular, liable for the data, content, information, communications, etc. stored, entered, published, communicated, distributed, transmitted, etc. on or through the Service.

9.4. MPS Monitor cannot be held liable in any way for criminal, civil, and administrative wrongdoing committed by the Customer and/or its users through the Service. The Customer undertakes to indemnify and, in any case, to hold MPS Monitor harmless against any action, complaint, claim, cost or expense, including reasonable legal fees, that may be incurred by the latter due to failure by the Customer and/or its users to comply with their obligations and the warranties given on acceptance of this Contract and in any event related to the use of the Service by the Customer and/or its users.

9.5. The Customer is responsible for any damage caused to itself, to its users, to MPS Monitor or to the other customers hosted on the same server by the improper installation of software or unlicensed or malicious software or the execution of malicious software or the development and execution of malicious software. MPS Monitor reserves the right to terminate at any time and without notice the Customer’s Service if the installed software causes harm to MPS Monitor or to other customers or results in a decrease in the level of security or is used for illegal or immoral actions.

10. METHODS OF ACCESS TO THE SERVICE AND ACCESS PASSWORD

10.1. The server will make available to the Customer, and possibly to its users, a dedicated website, accessible via HTTP or HTTPS, and authentication. Access to the Service will be enabled by means of a Customer identification code (Login) and a Password. MPS Monitor will also make available to the Customer logins and passwords in the amount requested by the Customer for its internal and external users, with different security profiles for access.

10.2. The Customer declares that it has been informed of the fact that the disclosure to third parties or, in any case, the knowledge by third parties of logins and passwords would enable them to use the Service in the name of the Customer and/or its users. The Customer undertakes, therefore, for itself and for its users, to safeguard the password with the utmost diligence and confidentiality. Failing that, the Customer will be liable for any damage or injury caused to itself, to its users, to MPS Monitor or to any third party. Under these General Conditions, the Customer will be responsible for the information and the content put on the network in case of use by third parties of the logins and passwords provided to it by MPS Monitor.

10.3. The Customer undertakes to promptly notify MPS Monitor in writing of any loss or theft of the passwords provided to him by MPS Monitor.

11. FAULT NOTIFICATION AND REPAIR CUSTOMER SERVICE COMPLAINTS

11.1. The Customer must notify via email to the address help@mpsmonitor.com any defect in the delivery and operation of the Service.

11.2. MPS Monitor will respond to the notification from the Customer, also providing the support service for any information and clarification that the Customer requires.

11.3. The Customer may send any complaints regarding the provision of the Service to help@mpsmonitor.com.

12. FEES, INVOICING AND PAYMENTS

12.1. For the Service provided, the Customer will pay MPS Monitor a monthly fee calculated by multiplying the unit fee, as described in detail in the Service Proposal and its annexes, by the number of printers (devices) detected by the system on the Customer’s users and defined as “Managed by the system”, within the limits of the maximum number of devices covered by the Contract and indicated in the Service Proposal. All the printers that are detected by the Software but are classified in the system as “Non-Managed” will not be charged.

12.2. The unit fee will vary depending on the quantity of managed printers, as described in the Service Proposal and its annexes.

12.3. The first payment will also include the one-off service activation fee, as indicated in the Service Proposal and its annexes.

12.4. The invoice will be issued on the last day of each calendar month, in arrears, and will indicate the number of printers (devices) managed by the system. The number of printers that will be used for the monthly invoice will be the higher of the following two numbers:

1) number of printers (devices) classified as Managed at the invoicing date

2) average number of printers (devices) classified as Managed during the month being invoiced

The first invoice will be issued at the end of the month in which Service activation takes place and will contain the one-off service activation fee and the cost of on-site visits, if any. The payment of all invoices will be due by the dates specified in the Service Proposal. Payments will be made by bank transfer according to the references shown in the invoice.

12.5. In the event of late payment of even one of the monthly fees, default interest will be due, as well as collection costs in accordance with Articles 4, 5 and 6 of Italian Legislative Decree  no. 231 of 9/10/2002. In any case, the Customer is required to pay the monthly fees for the entire period in which the Service is provided. Interest shall be payable from the day following the expiration of the payment deadline.

12.6. Upon expiration of the payment deadline, MPS Monitor will notify the Customer of the delay and of the default interest applied, with a warning that, in the event of non-payment within the following three (3) working days, the Service will be suspended. Upon expiration of this deadline, MPS Monitor may proceed with the suspension of the Service, also under Art. 1460 of the Italian Civil Code.

12.7 If the Customer fails to make payment within three (3) working days of the suspension, MPS Monitor may terminate the Contract in accordance with Article 1456 of the Italian Civil Code, aside from further legal remedies.

12.8 In the case of partial payment, MPS Monitor may restrict or suspend the Service as provided in this Article.

12.9. The Customer may not oppose any exceptions without having first fulfilled all of its obligations.

12.10. If, due to an express request by the Customer, it becomes necessary to seek the assistance and/or collaboration of MPS Monitor, or of third parties it has authorized and tasked, at the Customer’s premises and/or those of its Customer (on-site), the Customer agrees to pay for these extras at the fees indicated, if present, in the price list contained in the Service Proposal and in the annexes. In this case, the Customer and/or its users will make available to MPS Monitor free of charge the computer on which the Software is installed.

12.11. The fee under the Contract may in no case be returned. The validity of the licence is independent of the frequency or time limit of its use. The right of withdrawal by the Customer gives no right to request a full or partial repayment of the fee.

13. CHANGES DURING THE SUPPLY

13.1. MPS Monitor may modify, on the grounds of proven technical, economic, and management requirements, the technical specifications and the fees of the Service as well as these General Conditions, by notifying the Customer, indicating explicitly the specific reasons for the changes made, with notification sent to the Customer’s certified email address, by registered letter with return receipt or other equivalent means.

13.2. The changes will become effective after thirty (30) days from receipt by the Customer of the notification referred to above. Within the same period, the Customer may withdraw from the Contract by registered letter with return receipt or other equivalent means to be sent to MPS Monitor, with effect from the date of receipt by the latter. In the absence of a withdrawal notified in the manner and within the terms provided above, the changes will be considered as accepted by the Customer.

13.3. The increase in fees will be applicable in any event only from the day following the expiry of the deadline referred to in the point above.

13.4. The changes cannot relate to covenants regarding mandatory legal requirements, including those introduced following the conclusion of this agreement; such changes will be fully and automatically applied to this Contract without the need for any prior notification between the parties.

14. SUSPENSION OF THE SERVICE

14.1. In the case of failures of the network and of the equipment supplying the Service of MPS Monitor or of other service providers, which are due to unforeseeable circumstances or force majeure, MPS Monitor may suspend at any time, without prior notice, in whole or in part, the Service. MPS Monitor may also suspend the Service, without notice, in whole or in part, in the case of changes and/or maintenance to improve the Service itself and in the other situations provided for in the Contract.

14.2. MPS Monitor may also suspend the Service, without notice, in whole or in part, should any facts or circumstances arise to influence the supply, such as the occurrence of an abnormal and/or intense use by the Customer likely to prevent the normal supply of the Service to other customers.

14.3. Nevertheless, MPS Monitor reserves the right to terminate at any time and without notice the Service if the Customer uses or installs software tools capable of causing damage to MPS Monitor or other customers or that cause a decrease in the level of security or that are used for illegal or immoral acts (see Art. 9.5 last part of these General Conditions).

14.4. Regardless of the above circumstances, after three (3) working days from the communication that notifies the non-payment to the Customer, MPS Monitor may proceed with the suspension of the Service, also under Art. 1460 of the Italian Civil Code (within the terms of Art. 12.7 of the General Conditions).

15. CUSTOMER’S OBLIGATIONS

15.1. The Customer undertakes to provide updated personal data to MPS Monitor, including a valid email address that MPS Monitor may use to communicate with the Customer.

15.2. The Customer shall promptly inform MPS Monitor of any dispute, claim or proceeding brought by third parties in connection with the Service that the Customer becomes aware of. The Customer shall be liable for any damages, whether direct or indirect, suffered by MPS Monitor due to failed or untimely communications.

16. CUSTOMER WARRANTIES

16.1. The Customer warrants that it is the owner of the equipment needed to use the Service or, in any case, that it is entitled to use the above equipment.

16.2. The Customer warrants that the Service will not be used, for any reason, by third parties, unless specifically agreed with MPS Monitor. The Customer thus assumes full liability for any misuse of the Service.

16.3. The Customer warrants under its responsibility that the personal data provided at the time of activation of the Service is true and accurate.

16.4. The Customer shall be liable, possibly jointly and severally with its users, to MPS Monitor in the event of violation by the Customer and/or its users of the clauses of the Contract, which these General Conditions refer to and are an integral part of.

16.5. The Customer undertakes to hold MPS Monitor harmless from any and all consequences that might arise from the unlawful, improper or unlawful use of the Service, possibly jointly and severally with its users. As a result of this, the Customer hereby declares itself liable to MPS Monitor as well as to the competent Authorities for any behaviour or fact punishable by law, within the framework of its use of the Service, without prejudice to the possible joint and several liability of its users.

16.6. The Customer warrants the legitimate availability of the data notified by itself and/or its users to MPS Monitor for the execution of the Contract and will in any case hold MPS Monitor harmless from any claims made by third parties related to said data.

17. TERMINATION

17.1. The Contract will terminate automatically in the event that the Customer is subjected to enforcement proceedings, bankruptcy proceedings, an arrangement with creditors, suspended business activities or other insolvency procedures, becomes insolvent or assigns assets to creditors, suffers a seizure or other forms of constraint on its assets or is put into liquidation, either voluntarily or compulsorily, unless MPS Monitor decides to waive the condition with a written declaration, which the Customer will be responsible for producing in the case of any dispute on this point. The right to termination remains nonetheless in place in cases where the Customer’s financial circumstances have become such as to put in obvious danger the exact fulfilment of the supply, at its expense, in accordance with the Contract.

17.2. The termination does not affect the rights already accrued at the date of termination, subject to the right to compensation for any damage suffered by MPS Monitor. Notwithstanding any other cause of termination agreed in the Contract and in these General Conditions or under the law, the following also applies.

17.3. If the Customer breaches the provisions of Article 16.2 of these General Conditions, MPS Monitor may terminate the contract under Article 1456 of the Italian Civil Code by means of a notice of intention to make use of this termination clause sent to the Customer by registered letter with return receipt or other equivalent means. Nevertheless, MPS Monitor may terminate the contract in accordance with the rule mentioned in the preceding paragraph, once three (3) working days have elapsed unsuccessfully from the suspension of the Service in the event of non-payment by the Customer, without prejudice to any other remedy under the law, with notification to be sent by registered letter with return receipt or other equivalent means (within the terms of Art. 12.7 of the General Conditions). This is without prejudice to the right to compensation for any damage suffered and to retain, as a penalty, the amounts already paid by the Customer for any reason.

17.4. MPS Monitor shall also have the right to revoke the licence of use and thus to terminate the Contract by law, with immediate effect, by means of a notice by registered letter with return receipt or other equivalent means, in the following cases: A) granting of use of the Software to any third party, except as provided in the Contract; B) duplication of the Software, documentation, and manuals, even if only partial, beyond what is provided for and authorized; C) communication to third parties of the content, even partial, of the Software and its documentation and manuals; D) in the event of a breach by the Customer and/or its users of even one of the prohibitions contained in Article 3 of these General Conditions or use of the Software in conflict with the procedures and time limits laid down in the Contract.

17.5. The termination of the Contract by fact and/or fault attributable to the Customer and/or its users gives rise to compensation for damages caused to MPS Monitor, also in relation to the greater damage caused to it, without any right to a full or partial refund of the fee already paid.

17.6. In the event of termination, the Customer is notified and aware that it may no longer use the Service or the Software covered by the agreement. MPS Monitor is not liable for any damage caused to the Customer and/or its users due to any fact or fault attributable to the Customer on account of its breach.

18. WARRANTIES AND RESPONSIBILITIES OF MPS MONITOR
    

18.1. MPS Monitor guarantees the continuity of the Service, except for the possibility of temporarily suspending the Service for scheduled and unscheduled maintenance and in other cases provided for in the Contract, which these General Conditions are an integral part of.

18.2. Subject to the provisions of these General Conditions, MPS Monitor undertakes to maintain the efficiency of the Service offered and warrants the smooth operation of the Software and the prompt correction of any errors and/or malfunctions that may be encountered while using the software.

18.3. Subject to the provisions in these General Conditions, MPS Monitor also warrants that the Software operations shall take place without interruption, except in cases arising from issues not directly attributable to or to events not under the control of MPS Monitor.

18.4. If MPS Monitor is forced to suspend the Service due to exceptional events or maintenance, it will try to limit the downtime to the minimum possible.

18.5. For all ordinary maintenance work and systems updates that could lead to service interruptions, MPS Monitor will always check whether it is possible to schedule these in “non-working” hours, preferably during the night.

18.6. MPS Monitor shall not be liable in the event of interruption, malfunction or delay in the Service caused by:

1. Faulty or incorrect use of the Service by the Customer and/or its users;
2. Faulty operation of the system or the terminals used by the Customer and/or its users;
3. Interventions and/or tampering with the Service by the Customer and/or its users or third parties not expressly authorized by MPS Monitor;
4. Force majeure; total or partial interruption of the access services or termination of the connection, if due to force majeure or acts by third parties. Cases of force majeure means events unforeseen and unforeseeable by MPS Monitor and dependent on natural or third party acts, including but not limited to: explosions, lightning, earthquakes, hurricanes, fires, floods, other natural disasters, strikes;
5. Failure by the Customer and/or its users to comply with the legal and regulatory provisions in force, particularly in the area of ​​fire prevention, safety and accidents.

18.7. Except as required by mandatory provisions of law, MPS Monitor will not be liable towards the Customer, its users, persons directly or indirectly related to it or third parties for damages, losses, disbursements, and costs that they may incur in case of suspension or interruption of service due to unforeseeable circumstances, force majeure and/or acts of third parties. In any case, MPS Monitor remains exempt from any and all liability for direct and/or indirect damages of any kind (in reference to consequential damage and lost profits) suffered by the Customer, its users or third parties in general, including substantial ones, such as, by way of example only, lost profits and loss of business opportunities, except in cases of wilful misconduct or gross negligence. MPS Monitor is therefore relieved from all liability in cases where its failed, inaccurate or delayed performance are to be attributed to its own ordinary negligence or that of its auxiliaries, employees or other persons working for it.

18.8. MPS Monitor warrants the conformity of the Software under the Contract, which these General Conditions are an integral part of, with the technical specifications set out in the documentation provided and that it is only able to perform the operations described herein. The Customer declares that it is aware of this and that the Service meets its needs. Any checks will be carried out using exclusively the tests prepared by MPS Monitor.

18.9. MPS Monitor does not warrant that the technical specifications of the program correspond to the needs of the Customer and/or its users and the warranty given is, moreover, conditional on the correct operation of the computer, the system software and the correct use of the programs by the Customer and/or its users.

18.10. Having regard to the update and consulting service, MPS Monitor does not assume any obligation beyond those expressly agreed in writing and does not give any warranty regarding the services provided or due under the same, also with regard to the results of these services or their fulfilling a specific purpose.

18.11. Except as expressly provided by law, MPS Monitor assumes no liability for any direct or indirect damage suffered by the Customer and/or its users or other third parties in relation to the update and consulting service or the services it provides.

18.12. MPS Monitor is not liable for any delays in the execution of the update and consulting service due to force majeure, including company or other strikes and other causes attributable to third parties.

18.13. In particular, any contractual or other liability for direct or indirect damage suffered by the Customer and/or its users as a result of the execution of the update and consulting services is excluded.

18.14. MPS Monitor, in connection with the Contract that these General Conditions are an integral part of, seen in its entirety and as an interdisciplinary whole, does not assume any other obligation and makes no other warranties beyond those provided for by express agreement, excluding in all other cases its liability for damages of any kind or reason caused to the Customer, its users, and in general to third parties, subject to the mandatory legal limits. The liability of MPS Monitor is limited, in fact, to solely that expressly provided for by the contract between the parties.

18.15 MPS Monitor is in any case free from any liability, where consistent with applicable law, for any damage, direct or indirect, of any type arising out of or related to the quality, adequacy, use or non-use of the Software and/or the Service.

18.16. Under no circumstances will there be a limit on the liability of MPS Monitor for non-fulfilment due to wilful misconduct or gross negligence.

19. INDUSTRY REGULATIONS AND AUTHORIZATIONS

The Customer also acknowledges that the national legislation of each country concerned, relevant international regulations and the regulations for use of the individual infrastructures concerned govern the Service provided by or through other infrastructures, both national and foreign, used by means of and during the provision of the Service. Such regulations may provide for limitations in the use of the Service or particular rules concerning Customer liability for use of the Service.

20. MISCELLANEOUS PROVISIONS COMMUNICATIONS

20.1. The Contract, of which these General Conditions are an integral part, is binding for the Customer and for MPS Monitor, remaining effective for the benefit of their respective successors and assignees.

20.2. Each and any amendment or supplement to the Contract that is referred to here will have to be specifically approved in writing under penalty of nullity. It will also have to be evidenced by a written document signed by or on behalf of the party with regard to which the change is invoked, except as set forth by Art. 13 of these General Conditions.

20.3. MPS Monitor will carry out all the activities under its responsibility in accordance with the Contract using its own staff or through appointed third parties.

20.4. MPS Monitor will communicate with the Customer in writing to its main email address or in the invoices or by separate statements, to be sent by post or fax, which will be considered received if sent to the last known address or fax number specified by the Customer.

20.5. The Customer will send all communications to MPS Monitor by letter to be sent to MPS Monitor Srl, Via dei Borromei 2, – 20123 Milan or by email to info@mpsmonitor.com .

20.6. The Customer undertakes to communicate without delay to MPS Monitor, by mail or in the forms referred to in the preceding paragraph, any change of its details relevant to the contractual relationship.

20.7. Upon activation of the Software at a user’s premises, the Customer undertakes to communicate to MPS Monitor the user’s personal details and to keep them constantly updated via the dedicated area on the website. Failing the foregoing, MPS Monitor may decide not to enable or to disable the user in question, with any and all liabilities borne by the Customer, which agrees to indemnify and hold MPS Monitor harmless from any action, complaint, claim, cost or expense, including any of a legal nature, that may arise from such a situation.

20.8. The Customer hereby authorizes without limitation MPS Monitor and its employees and/or associates to have direct contact with and to exchange information with the Customer’s users, without the need for any specific authorization from the Customer and without the latter being able to oppose any exception.

21. PROTECTION OF PERSONAL DATA AND CONFIDENTIALITY

21.1. The information and personal data that MPS Monitor S.r.l. acquires in any way under this Agreement will be processed in accordance with the provisions and regulations of Regulation 2016/679/EU (GDPR), in a lawful and correct manner and in compliance with the principle of minimization. The processing of the personal data in question will be carried out by manual, automated and electronic means and will be executed exclusively for the purposes of the correct and complete management of the implementation of the Service covered by the Contract. MPS Monitor, in executing the Contract, may use third parties located both in Italy and abroad, in countries belonging to the European Union, which provide sufficient guarantees to implement technical and organizational measures to meet the requirements of industry legislation and protect the rights of data subjects. In such cases, it will, where necessary, appoint them as “Data Processors” in accordance with and for the purposes of Article 28 of the GDPR, before having them undertake any treatment arising from this Agreement. MPS Monitor may also use third parties based in non-EU countries that ensure an adequate level of protection of Personal Data in compliance with the provisions of Chapter V of the GDPR (e.g. in the presence of EU adequacy decisions, standard contractual clauses, BCRs (Binding Corporate Rules), etc.). The data processed for the purposes of this Contract will be kept for the duration of the contractual relationship and, subsequently, for the time strictly necessary to fulfill the requirements of the law, after which the data will be destroyed or made anonymous and used for only statistical purposes. The data, except for any legal obligations, may not be disclosed or communicated to parties other than the Controller, Processors and persons in charge of data processing or, in accordance with current legislation, public authorities or public administrations. The data subject shall be guaranteed the exercise, for his or her own data, of the rights referred to in Articles 15 to 22 of the GDPR, including in particular the right to request from the data controller access to the personal data and to rectify or erase the personal data or restrict or object to the processing of such data, as well as the right to portability of such data in the cases provided for by law.

21.2. The data controller is MPS Monitor, in the person of its legal representative pro tempore, with headquarters in Via dei Borromei 2, postal code 20123 MILAN. The Company has appointed a Data Protection Officer who is domiciled for the purpose of this role at the same office and can always be contacted at the following e-mail dpo@mpsmonitor.com

21.3. The Customer declares that it has informed its users that, due to the relationship between them, their personal data may be communicated to MPS Monitor, within the limits of the execution of this Contract. In relation to the processing of the personal data of its users, the Customer agrees to relieve MPS Monitor and its subcontractors, if any, of any and all liability. The Customer undertakes, among other things, to guarantee, indemnify and hold harmless MPS Monitor and its subcontractors, if any, from any liability, costs, charges, claims or damages acknowledged in favour of its users, including any legal costs arising from such circumstances. The Customer undertakes, therefore, to indemnify and hold harmless MPS Monitor and its subcontractors, if any, from any request, action or request made by its users that originates from any processing of their personal data in connection with the performance of this Agreement.

21.4. The Parties will each take steps within their respective areas of responsibility to comply with the requirements of current legislation on the processing of personal data with regard to the position and role of the system administrator, where applicable.

21.5. The data being processed for the purposes specified in this Contract will be retained for the duration of the contractual relationship and, subsequently, for the time strictly necessary for the completion of the procedures required by law, after which it will be destroyed or made anonymous and used solely for statistical purposes.

This data will be collected, processed and stored in full compliance with the provisions of Articles 31 et seq. of the Privacy Code and the Technical Regulations regarding minimum security measures – Annex B) of the Privacy Code – regarding security measures and from any other Measure of the Italian Data Protection Authority that may be applicable.

21.6. MPS Monitor, through its pro tempore legal representative, is the Controller of the personal data it processes based on this Contract. The concerned parties may contact the Data Controller at any time, by writing to MPS Monitor Srl, with registered office in Milan, Via dei Borromei no. 2 – Cap. 20123, or to the email address: PRIVACY@MPSMONITOR.COM, to assert the rights as provided for by Article 7 of the Privacy Code.

21.7. The Customer declares that it has informed its users that, given the relations between them, their personal data may be disclosed to MPS Monitor, within the limits of the execution of this Contract. In relation to the processing of personal data of its users, the Customer agrees to hold harmless from any and all liability MPS Monitor and its possible subcontractors. The Customer undertakes, among other things, to guarantee, indemnify and hold harmless MPS Monitor and its subcontractors from any liability, costs, expenses, claims or damages awarded in favour of its users, including any legal fees deriving from such circumstances. Therefore, the Customer undertakes to hold harmless and indemnify MPS Monitor and its possible subcontractors from any demand, action or application filed by its users that originates from any processing of their personal data in connection with the execution of this Contract.

21.8. The Customer expressly acknowledges and accepts, for itself and its users, pledging to obtain the prior informed consent as provided above, that the data of the Customer and its users may be used by MPS Monitor, in anonymous and aggregate form, for statistical and market analysis purposes.

21.9. Each Party will put in place, as far as they are responsible for doing so, the measures required by law concerning the processing of personal data with regard to the role of the system administrator, where applicable.

21.10. The Parties mutually undertake, also for a period of 3 years following the extinction for any reason of this Contract, to:

(A) maintain the secrecy of confidential information obtained during the execution of the Contract;

(B) not to disseminate and divulge, in whole or in part, without the written consent of the other Party, such information to others, except to its employees, staff, directors, and third parties acting on behalf of that Party and who are involved in providing the Service covered by this Contract;

(C) manage the confidential information acquired according to the strictest confidentiality and solely for internal circulation within the area for which it must necessarily be used for reasons related to the Contract and not for its own profit or for the benefit of third parties.

Furthermore, the Parties undertake not to disclose to third parties without the consent of the other Party any information provided during the execution of the Contract. The obligation of confidentiality also extends to the staff, employees, auxiliaries, sub-contractors, consultants and other persons in any way involved in the provision of the Service related to the receiving Party, which must ensure that the use of transmitted data takes place in such a way as to prevent any disclosure of data, information or news through the work of the aforementioned parties. The Confidential Information does not include information for which the receiving Party can demonstrate that the information is (i) ordinary and obvious; (ii) publicly accessible; (iii) already in the possession of the receiving Party; (iv) disclosed by the Disclosing Party to a third party without restriction on further disclosure; (v) lawfully disclosed to the receiving Party by a third party without restriction on disclosure; (vi) disclosed as a result of an injunction or court order, or required by law, provided that the Party being required to disclose promptly notifies the other Party before disclosing the information, where this is not prohibited by law.

22. APPLICABLE LAW, JURISDICTION AND FINAL PROVISIONS

22.1. For all the articles and clauses of these General Conditions, the Parties recognize Italian law as the sole valid law.

22.2. For all legal disputes arising from the Contract that these General Conditions relate to and form an integral part of, including those relating to the validity, interpretation, and termination of the Contract, the Milan Court shall have sole jurisdiction, unless they come within a category for which the law expressly considers territorial jurisdiction as mandatory.

22.3. The possible existence of additional contracts between MPS Monitor and the Customer does not imply any connection between them. The contracts therefore remain separate and autonomous.

22.4. For anything not specifically regulated by these General Conditions, reference is made to the current Italian legislation, with express reference to the general rules of the Italian Civil Code on contracts, the applicable special laws concerning copyright protection, the applicable special laws on software protection and their subsequent modifications and updates to the extent applicable to this Contract.

22.5. Should one or more provisions of these General Conditions prove to be void, invalid or unenforceable in any way, in whole or in part, the relevant clauses will be considered unwritten and this will not affect the validity and the applicability of any other provision, unless these clauses are vital.

22.6. All taxes, charges or levies bearing on the Contract that these General Conditions form an integral part of, on the fees or on the services contained in it will be charged to the Customer, excluding property and income taxes payable by MPS Monitor.

22.7 The Customer undertakes to conclude with its users separate and independent contracts faithfully complying with and not in any way inconsistent with this Contract. It also undertakes to provide its users with all the information that may be necessary, and to secure from them all authorizations, including those relating to the processing of personal data that may be necessary for the execution of this agreement also by MPS Monitor, relieving MPS Monitor from any liability and undertaking to indemnify and, in any case, hold MPS Monitor harmless against any action, complaint, claim, cost or expense, including reasonable legal costs.