1. Definitions
1.1. WCS is the acronym for the Web Communication Suite solution, created by EKRA, on which numerous solutions have been developed, such as, by way of non-exhaustive example:
- Drive App
- Dealer Mate
- Auto mate
- Etc.
For these solutions, the provisions of these General Conditions apply.
1.2. S.a.a.S. Software as a Service is a software application distribution model, where a software manufacturer develops, operates (directly or through third parties) and manages a web application, which is made available to its customers via the Internet.
1.3. EKRA (hereinafter also referred to as Supplier) is the company that has developed and makes the WCS platform available in S.a.a.S. mode.
1.4. Module is a set of tools and functionalities, homogeneous for the purpose of use. Therefore, for example, in the Website module, it is possible to find tools to create and manage a website, in the Registry module, it is possible to find tools to create and manage contact, company registries, etc..
Examples of modules are the following:
- Website
- User Registries
- Human Resource
- Digital Asset Manager
- Orders
- System Log
1.5. Client is the organization that, in agreement with EKRA, uses the WCS solution, or part of it (i.e., only some of the modules contained in the WCS system).
1.6. Release (or also version) of the WCS platform corresponds to a specific organization and a particular set of tools and functionalities of the system, updated to the last modification, in chronological order, made to the system itself.
The releases of WCS are indicated with a triplet of numbers.
1.7. Economic Conditions, or also Estimate, or still Economic Offer is the title of the document - attached to these General Conditions, - in which the economic terms (consideration, billing, payment plan and methods), duration, conditions and methods of withdrawal and any penalties are defined.
2. Subject of the contract
2.1. This contract establishes the conditions of use of the platform called WCS by EKRA, and defines the services reserved for Clients.
3. License to use WCS S.a.a.S. services
3.1. WCS services, in S.a.a.S. technology, are granted to the Client under a license to use.
The Client may use only the modules indicated in the Economic Conditions, signed with EKRA and for a duration agreed with the supplier.
3.2. By accepting the conditions, the Client does not in any way own the WCS platform and any part of it except for the data and files, entered by the Client himself or by personnel appointed by him.
3.3. WCS is subject to improvements and evolutions (also resulting from legal regulations).
EKRA reserves the right to make any changes and/or improvements to the licensed services offered, which it considers appropriate and necessary.
3.4. The S.a.a.S. Service of WCS includes, in case the Client has subscribed to the related functionalities,
- Max disk space: 5 GB for a WCS environment with an institutional site and 20 GB for a WCS environment with e-commerce
- Max monthly traffic: 10 GB
- Max Peak: 5.0 Mbps
- Max Number 50 SMS/month
- Max Number of concurrent processes: 10
- Max Number of emails (cumulative of massive and transactional) sendable per month: 10,000
4. Activation and provision of the service
4.1. The services are activated and distributed online, according to the procedures indicated and with the authentication credentials provided by EKRA.
4.2. From the date of delivery of the system, or the release of a modification/expansion, the Client will have 14 days to perform the necessary checks and/or tests to the system configuration, after which no discrepancies and/or other can be advanced.
5. Client's Obligations
5.1. The Client is solely responsible for the use of the service, as well as any detrimental consequences that may fall on EKRA and third parties. The Client undertakes to immediately communicate to EKRA any possible unauthorized use of WCS by third parties, as soon as it becomes aware of it, committing anyway to indemnify and hold EKRA harmless from any request, including damage compensation, proposed and/or arising, directly or indirectly, from the above mentioned use or abuse of the service.
5.2. It is forbidden to make copies, or distribute, for profit, free of charge or otherwise, all or part of the software and the code and services contained therein, as it is absolutely forbidden to disassemble, alter or modify the source code of the WCS platform, through procedures not contemplated by the platform itself.
5.3. The Client undertakes to: a) Not interfere with or disrupt the service; b) Not use the service for illegal purposes or against public order, good customs and morality or for illicit purposes, or the use of programs that may cause damage to the internet network (viruses, hacking, spam, etc.); c) Not use or disseminate the content of the service in ways that involve the violation of patents, trademarks, secrets, copyright or other industrial and/or intellectual property rights of EKRA or third parties. In addition, the Client undertakes to promptly report (and in any case within 3 days from when it becomes aware of it) the behaviors of its customers, which are not in line with the points a), b) and c) described in the current article.
6. Suspension of the service
6.1. Should EKRA become aware or determine, at its sole discretion, that the Client has violated or is violating the prescriptions, referred to in the previous article, as well as the applicable regulations including the laws and regulations relating to Privacy, EKRA itself will ask for clarifications by email or by PEC and the Client will have 3 days, to be understood as mandatory, to provide such clarifications in writing (always by email or PEC). If the Client's response does not arrive within the agreed 3 days, or if EKRA is not satisfied with the response received, EKRA itself may suspend and/or interrupt the provision of the service or disconnect (temporarily or permanently) the Client's account, and this without recognition of any refund, compensation and/or compensation, with subsequent cancellation of the account.
6.2. EKRA also reserves the right to suspend the provision of the service should it become aware or deem, at its discretion, that one of the following circumstances has occurred or is occurring: a) a use of the service that determines situations of danger or instability of the server farms such as to cause damage to EKRA or to third parties; b) an abnormal traffic or such as to prevent the normal provision of the service; c) should the public authority or other third parties communicate to EKRA an illicit, improper use or not in accordance with the rules of the service by the client; d) suspend the Services in case of non-payment, inaccurate and/or delayed payment of the consideration provided in the commercial proposal.
6.3. In any case, EKRA reserves every action of recourse and/or compensation or otherwise provided by law on the responsible for these violations, or the faculty to exercise the express termination clause referred to in art. 16 of this contract.
7. Suspension, modification and temporary interruption of services
7.1. EKRA assumes the burden of maintaining the Services in full efficiency, notwithstanding what is specified in the following paragraphs.
7.2. EKRA reserves the right to: - interrupt the Services, for a time not exceeding 1.5% of the annual hours provided by this contract, to update and/or modify them, with prior notification by email; - modify the functionalities and/or structures of its system, when this is made necessary by technical-operational reasons, also in order to ensure its customers a high standard of security of computer systems.
8. Industrial and intellectual property
8.1. The contents and algorithms of the S.a.a.S. WCS platform are subject to intellectual and industrial property rights belonging to EKRA and are protected by the laws in force on intellectual property, civil and criminal.
8.2. The Client will refrain from any use of the contents and algorithms in competition with the rights of economic use belonging to EKRA.
8.3. The Client is not authorized to modify, translate, adapt, reprocess or decompile the contents and/or algorithms or create derivative applications. The user manuals, videos, presentations and any accessory printed material produced by EKRA, are covered by copyright and cannot be reproduced by the Client, except for corporate use.
8.4. The WCS software is the exclusive property of EKRA and the license to use granted does not constitute a transfer or sale, total or partial, of the original property rights relating to the platform itself, the individual parts of it and any course contents.
8.5. The client assumes exclusive responsibility regarding the use of the services and recognizes, in favor of EKRA, the full and total exclusivity of copyright and any and every other right connected to the S.a.a.S. services granted under license.
8.6. EKRA is the exclusive owner of the EKRA and WCS trademarks and the domain name www.ekra.it
9. Guarantees on services, liability, exclusions
9.1. EKRA provides the possibility to use the WCS platform in S.a.a.S. mode in the state of fact and law. EKRA does not guarantee that the functionalities contained meet the needs of the Client, are continuous or error-free.
9.2. The Client acknowledges that in no case will EKRA be liable for consequential, indirect, incidental damages also in relation to the suspension of the service for failures, updates, lack of Internet connectivity, general problems on EKRA's servers, ordinary and extraordinary maintenance activities. To this end, the Client acknowledges not to demand from EKRA, under any title, refunds, discounts, and in any case any type of compensation or compensation even in case of early termination of the contract by the Client himself.
9.3. EKRA does not provide any guarantee in relation to the contents and algorithms, which are in continuous evolution and modification, nor to the materials provided, nor to the information contained in WCS. In this regard, EKRA, within the limits of art. 1229 c.c., does not provide any guarantee and expressly declines any responsibility arising from the use of the platform and the information contained therein, to their adequacy and accuracy.
9.4. EKRA does not manage nor control the correctness of the information on the contents entered by the Client, nor does it undertake to guarantee the correctness and quality of the contents entered by third parties on behalf of the Client outside the direct control of EKRA. EKRA does not recognize guarantees, nor does it make statements regarding the use or the outcome resulting from the use of the service provided, regarding their correctness, accuracy, timeliness, reliability or otherwise.
9.5. The service in question must not be used in high-risk activities, which in case of error may cause damage or accidents to people, property, the environment, the financial or economic situation of the customer. The Customer expressly assumes all risks for such use.
9.6. The Customer releases EKRA from any liability on the published data (with data meaning: including but not limited to, photographs, logos, images, texts, videos, audio files, etc.), whether they are sensitive. EKRA, therefore, while striving to prevent this, cannot be held responsible in any case for the use of data, managed by the Customer, that were, unbeknownst to EKRA, covered by copyright.
9.7. The Customer uses the services at their own risk: EKRA is not liable to any party for legal/civil or administrative disputes, indirect, specific, incidental, punitive, exemplary or consequential damages (including but not limited to: damages in case of inability to use or access the services, loss or corruption of data, profits, clientele, business interruptions or similar), caused by the use or inability to use the services and based on any theory of liability including breach of contract, negligence, or other.
9.8. EKRA commits to protecting the solution, subject of this contract and provided in S.a.a.S mode, with an Antivirus system and a Firewall device. In any case, EKRA is not responsible for malfunctions of the services, data loss, accidental dissemination of sensitive data, and any other type of damage occurred as a result of attacks by hackers, thieves, crackers, viruses, etc.
9.9. EKRA is not responsible for the malfunctioning of the services due to non-compliance and/or obsolescence of the devices which the Customer or third parties are equipped with.
9.10. EKRA cannot guarantee the Customer secure revenues derived from the exploitation of the services.
9.11. The Customer acknowledges that the services provided are subject to interruption for reasons beyond the will of EKRA. The Customer also agrees that EKRA's liability for its own negligence cannot in any case exceed the amount paid by the Customer for the service during the period in which the damage occurred.
10. Compensation and payment methods
The compensation and payment methods, for the use of the WCS system (or part of it) after the trial period, are defined in the document Economic Conditions or more economic agreements (more documents of Economic Conditions) between EKRA and the Customer.
In such Economic Conditions the modules, which the Customer can use and the corresponding annual fee, the duration and other possible elements and characteristics of the service are specified.
11. Billing and payment plan
The billing and payment plan, for the use of the WCS system, are defined in the document Economic Conditions referred to in the previous article.
12. Duration – Withdrawal – Penalty
The parties agree that in the document Economic Conditions the duration of the contract and the day of the start of the Service provision will be indicated.
The parties agree that the contract is deemed tacitly renewed for the same period, unless a motivated cancellation is sent, by one party to the other, by registered mail A/R or Certified Electronic Mail (PEC) within 90 days from the expiration.
In the case of early withdrawal exercised by the Customer, they are required to refrain from using the authentication credentials for accessing the services that are owned by EKRA, which reserves the right to cancel them from the day of withdrawal.
Furthermore, in case of early withdrawal the Customer will be obliged to pay EKRA in a single solution as a penalty the entire amount of the annual fee agreed upon until the expiration.
13. Customer Declaration
The Customer acknowledges and is aware that EKRA may interrupt the service in order to maintain, update and modify the same or enable new services by notifying the customer via email.
The Customer acknowledges that the above circumstances of suspensions or disconnections are necessary due to the type of service provided and therefore EKRA cannot be held in any way responsible for the temporary disablement of the service.
14. Force Majeure
EKRA cannot in any case be considered responsible towards the customer or third parties for the delay or non-performance of its obligations due to force majeure such as, by way of example and not limited to, actions of public authorities, floods, fires, thefts, epidemics, explosions, accidents, strikes, and lockouts even non-company ones, acts of war, embargo, impossibility of transport, suspensions or problems of telecommunication, lightning, failures of plants not attributable to EKRA, interruptions or overload of energy flows, failures, or interruption of telephone lines attributable to the activity of the operator (or concessionaire) of the same lines, as well as interruptions or suspensions not attributable or otherwise independent from the will of EKRA or arising from third parties.
15. Limitation of Warranty
EKRA cannot in any way be responsible for the non-use of the service or the non-functioning and/or poor functioning of the customer's property material.
EKRA does not provide any type of warranty, expressed or implied, of merchantability, compatibility or fitness for a particular purpose of the user or third parties and also does not guarantee that the service meets the requirements and needs of the Customer himself.
The examples, materials, and information contained in WCS are provided strictly and exclusively for the purpose of example, not constituting in any way professional advice.
16. Express Termination Clause
The contract will be terminated by law under art. 1456 c.c., should one of the parties declare to avail itself of this clause by registered letter A.R. or PEC in the event of one of the following breaches of obligations:
a) violation of the obligations under art. 5;
b) violation of the obligations under art. 6;
c) violation of the obligations under art. 8;
d) violation of the obligations under art. 10.
17. Exclusions of Liability
Any liability of EKRA for the suspension and/or interruption of access to the S.a.a.S platform connected and/or dependent on maintenance and updating operations is excluded.
No liability of any kind or nature is assumed by EKRA as to the completeness, accuracy and/or adequacy of the data entered by the Customer and the configurations made by them. The Customer, therefore, is required to evaluate and verify the contents and configurations in every part being themselves solely responsible for the accuracy of the processed data and the results obtained from their use. EKRA therefore assumes no responsibility for the content and/or correctness and/or completeness of the information provided through the S.a.a.S platform, nor on the configurations made by the Customer.
Decisions and/or evaluations resulting from consulting the platform are made by the Customer and/or their successors in complete autonomy and under their direct and sole responsibility.
In no case can EKRA be held responsible even in part for any difficulty, defect, anomaly, discontinuity, impossibility of access and/or use of the Databases derived and/or otherwise connected to the hardware and software equipment of the customer or to the connection through the provider chosen by the customer themselves, to the incorrect functioning of the telephone network or the devices that constitute the Internet network.
18. Privacy
Pursuant to and for the effects of the laws and regulations on Privacy, EKRA informs the customer that the personal data of the Customer, provided by the Customer to EKRA itself, within the scope of pre-contractual checks and activities, at the time of signing or during the execution of this contract, are processed exclusively for the purpose of carrying out the aforementioned pre-contractual activities, fulfilling the obligations and exercising the rights arising from the contract. Such data – as well as those of EKRA's duly appointed collaborators – may be communicated to third parties whose services EKRA uses to perform or carry out operations connected or consequent to the relationship in question, to pre-contractual checks, such as merely by way of example and not exhaustively, dealers, subcontractors, credit institutions, insurance companies, carriers, legal, tax, IT, administrative consultants etc..
The service data reside on servers physically located on Italian territory. EKRA reserves the right to change the physical location of the data prior notice and acceptance of the new location by the Customer.
Each Party recognizes the other the possibility of using its name for commercial references, in addition to the publication of the so-called credits on the Web.
19. Communications
Every communication related and/or connected to this contract will be valid and effective towards the other party if made in writing – electronically – and sent to the following email address:
- if to EKRA, via email to amministrazione@ekra.it
Every communication related and/or connected to the use of the WCS system, or a part of it, concerning what is contemplated in these General Conditions must be sent to the following address: servizio.wcs@ekra.it .
20. Competent Court
The Contract is subject to Italian Law. For any disputes arising from the application of this contract the Parties establish the exclusive jurisdiction of the Court of Mantua, excluding any other Court.
21. General Clause
EKRA reserves the right to modify this contract at any time, notifying Users on its website, published at https://www.ekra.it/it/documenti-ufficiali . In such case the changes will be effective by law, without the need for specific and further approval and in any case after 10 days from their publication.
The conditions, provided in this document, are not valid if there is another written agreement between the Customer and EKRA, for the parts regulated in the possible, said written agreement.
The possible tolerance of behaviors carried out by the Customer, in violation of the provisions contained in these conditions, does not constitute a waiver of the rights arising from the violated provisions, nor the right to demand the exact fulfillment of the obligations and respect of all the terms and conditions provided in the contract itself, within the limits of the terms of prescription.
The possible nullity of one or more clauses of this agreement, does not entail the nullity of the entire contract; the Parties undertake to replace the null clauses with permissible clauses suitable for achieving the purpose intended in the Contract itself.
For all matters not expressly regulated in the Contract, the Parties expressly refer to the general rules on contracts of the Civil Code and to the current special laws.
OPPRESSIVE CLAUSES
The Customer declares to have read and approved the above clauses and pursuant to and for the effects of artt. 1341 c.c. and expressly approves the following clauses which constitute an essential and integral part of this contract, rejecting from now on any mutual exception, Articles: 3, 4, 5, 6, 7, 8, 9, 12, 13, 15, 16, 21.
