Definitions
In these general terms and conditions of contract (the “General Conditions”), the terms and expressions listed below, when capitalized, must be understood with the meaning attributed to them in this paragraph. The terms indicated in the singular are also intended in the plural and vice versa.
Updates and Developments: means all updates, supplements, adaptations, developments, improvements and modifications in general made to the Software. Updates and Developments do not include those made necessary by the modification, integration, repeal or issuance of laws, decrees, regulations, directives, orders or decisions, Italian, EU or foreign which, at the sole discretion of Swifty srl, have a significant impact on the operations and/or costs of Swifty srl and/or on the structure of the Software or make substantial or structural changes to the legislation in force on the date of the Contract.
Assistance: means the technical support service aimed at suggesting to the Customer, upon request of the latter and where possible, technical solutions to ensure the correct use of the Cloud Services.
Code of Ethics: means the code of ethics adopted by the Group
Withdrawal Notice: has the meaning set out in paragraph 12.1(b).
Supplementary Conditions: means any independent contractual conditions governing the provision, by Swifty srl, of certain specific Cloud Services which will prevail over the General Conditions.
Connectivity: means the connection to the Data Center made by the Customer via a telecommunications network or the internet.
Contract: means these General Conditions, the related attachments, the Supplementary Conditions, the Order, any technical documentation delivered to the Customer, any subscription forms and any online instructions for using the Software.
Fees: means the sums, indicated in the Order, that the Customer will pay to Swifty srl. Access Credentials: means the authentication system through which it is possible to access and use the Software to benefit from the Cloud Services, including the identification codes and access keys associated with each User and any tokens.
Data Center: means the service centers that host the interconnected servers, owned by Swifty srl or third parties, on which the Cloud Infrastructure resides.
GDPR: means the European General Data Protection Regulation of 27 April 2016 n. 679.
Cloud Infrastructure: means the cloud system owned by Swifty srl or third parties that hosts the Software.
Legislation on the Protection of Personal Data: means the GDPR, and any additional implementing rules and/or regulations issued pursuant to the GDPR or in any case in force in Italy, as well as any binding provision that is issued by the competent supervisory authorities in the matter (e.g. the Guarantor for the protection of personal data) and retains binding effectiveness (including the requirements of the General Authorizations for the processing of sensitive and judicial data, if applicable and where they maintain their binding effectiveness after 25 May 2018).
Swifty srl: means the company Swifty srl with registered office in Via Matteotti 102/e Reggiolo. With VAT number: 02632840357
License: has the meaning set out in paragraph 10.2.
MDPA: indicates the Main Agreement for the Processing of Personal Data and the applicable DPA – Special Conditions document, attached to this Agreement.
New Product: has the meaning set out in paragraph 12.1(b).
Parties: means, jointly, Swifty srl and the Customer.
PEC: means certified electronic mail.
Obsolete Product: has the meaning set out in paragraph 12.1(a).
Intellectual Property: means any intellectual and/or industrial property right, registered or unregistered, in whole or in part, anywhere in the world, such as – by way of example and not limited to – trademarks, patents, utility models, designs and models, domain names, know-how, works covered by copyright, databases and software (including, but not limited to, its derivatives, source code, object code and interfaces).
Saas: means software-as-a-service.
Cloud Services: means the services provided by Swifty srl to the Customer through the access and use, by the latter, of the Software.
Software: means the software products owned by Swifty srl or one of the companies of the Group
User: means each employee and/or collaborator of the Customer, authorized by the latter to use the Access Credentials to access and use the Software in order to benefit from the Cloud Services.
1. Scope of application of the General Conditions
1.1. These General Conditions apply to the use, by the Customer, of the software and to the supply by Swifty srl through the access and use, by the Customer, of the platform. These General Conditions also apply to all Updates and Developments, unless they are regulated by separate and autonomous Supplementary Conditions.
1.2. All Intellectual Property Rights relating to the platform are and remain the exclusive property of Swifty srl.
1.5. The Contract is considered perfected when Swifty srl sends confirmation of the activation of the Cloud Services to the email address indicated by the Customer during the registration phase, after full acceptance of these General Conditions.
2. Cloud Services
2.1. With the Contract, in exchange for timely payment of the Fees, Swifty srl will provide the Customer, who accepts, with the Cloud Services. The Customer may use the Cloud Services exclusively through access and use in Saas mode.
3. Customer Obligations
3.1. With the Contract, the Customer undertakes to:
(a) pay Swifty srl the Fees due pursuant to Article 7;
(b) independently equip itself with hardware and software material, as well as adequate Connectivity in order to be able to access the Data Center and use the Software to use the Cloud Services;
(c) independently adapt the characteristics of its IT systems and Connectivity to any changes, replacements and corrections made to the Software and Cloud Services after the conclusion of the Contract;
(d) use the Software and/or Cloud Services in a manner compliant with the License and exclusively for the purposes for which they are intended;
(e) provide Swifty srl with all the information necessary to allow Swifty srl to correctly and completely fulfill the obligations undertaken pursuant to this Agreement, as well as to immediately communicate any related changes, including any changes relating to the Users;
(f) make each User aware of these General Conditions;
(g) provide Swifty srl with all the identification data, their own and/or of each User, necessary in order to correctly use the Software, undertaking to update them promptly, where necessary, guaranteeing that the aforementioned data provided are correct, up-to-date and truthful.
4. Access Credentials
4.1. The Customer and/or each User may use the Software and benefit from the related Cloud Services activated using the Access Credentials set independently by the Customer at the time of registration.
4.2. The Customer is aware of the fact that knowledge of the Access Credentials by third parties would allow the latter to make unauthorized use of the Software, unauthorized use of the Cloud Services and access to any information stored therein. The Customer will in any case be held exclusively responsible for any use, authorized or not, of the Software using the Access Credentials.
4.3. The Customer is required to keep and ensure that each User keeps the Access Credentials with the utmost confidentiality and with the utmost diligence, undertaking not to transfer them or allow their use to third parties not expressly authorized.
4.4. Retica, Swifty srl and/or any Partners may in no case be held liable for any damage, direct and/or indirect, that may arise to the Customer, to each User and/or to third parties as a result of the failure to comply by the Customer and/or each User with the provisions of this article 4.
5. Assistance
5.1. In exchange for the timely payment of the Fees, Swifty srl undertakes to make an Assistance service available to the Customer, in accordance with the timing and methods deemed appropriate by Swifty srl.
5.2. The Customer acknowledges and accepts that the Assistance service will be provided exclusively remotely, expressly excluding any direct intervention on the Customer’s IT systems.
6. Updates and Developments
6.1. The Customer acknowledges and accepts that, where deemed appropriate at the sole discretion of Swifty srl, the Updates, modifications to the software and Developments may: determine the modification or elimination of some features of the Software.
6.2. The Customer exempts Retica (and, in any case, Swifty srl) from any liability connected to any damages arising from potential Updates and Developments, unless such damages arise from willful misconduct or gross negligence of Swifty srl.
6.3. Updates and Developments do not include updates, supplements, adaptations, developments, improvements and modifications in general made necessary by the modification, integration, repeal or issuance of laws, decrees, regulations, directives, orders or decisions, Italian, EU or foreign which, at the sole discretion of Swifty srl, have a significant impact on the operations and/or costs of Swifty srl and/or on the structure of the Software or make substantial or structural changes to the legislation in force on the date of the Contract.
7. Fees
7.1. In exchange for the provision of Cloud Services, the Customer undertakes to pay Swifty srl the Fees indicated on the site. Or in advance for all licenses except the “pay as you go” license. The “pay as you go” license will be automatically charged at the end of the month of use of the license itself, and the exact amount will be determined by adding the consumption as indicated on the site. Subsequently, within the terms of the law, a regular invoice will be issued by Swifty srl. All Fees must be understood as net of VAT and any other legal charges.
7.2. The Customer acknowledges and expressly accepts that the Fees are subject to annual updating in the amount of 100% of the increase in the ISTAT index of production prices of services, calculated as the average of the last twelve months.
7.3. The Customer acknowledges that the Software and related Cloud Services are subject, by their very nature, to constant technological and regulatory evolution that requires continuous and costly updating, development and, in some cases, replacement activities, necessary to ensure their functionality. In light of the foregoing, Swifty srl will have the right to modify the Fees to any extent it deems appropriate in the manner set out in Article 15.
7.4. Without prejudice to the provisions of paragraph 7.3 above, if, during the execution of the Contract, unforeseeable circumstances should arise that make the provision of the Cloud Services by Swifty srl more costly, the latter will have the right to receive a fair one-off compensation or to unilaterally modify the Fees in the manner set out in Article 15.
7.5. In the event of failure or delay in payment of any sum due under the Contract, the Customer will automatically lose the benefit of the term and default interest will accrue on the sums due in the amount provided for by Legislative Decree 231/2002. In such case, without prejudice to the provisions of the following paragraphs 19.1 and 19.2, Swifty srl will also have the right to suspend any performance due under any other contracts in place with the Customer and/or withdraw at any time from such other contracts.
7.6. The Customer waives the right to propose exceptions without having previously fulfilled its payment obligations under this Article 7.
8. Confidentiality
8.1. The Parties are strictly prohibited from any form of communication and/or disclosure or in any case use, even through a third party and/or entity, of any news, information and documentation in any way learned and obtained during the execution of the Contract and that Swifty srl has classified as “reserved” or “confidential”, even if they do not involve actual industrial secrets, whether pertaining to the Parties or to their client and/or supplier companies, except:
(a) as expressly required by the execution of the Contract;
(b) express written authorization by the other Party;
(c) when the Parties are required to do so by law and/or by order of the administrative and/or judicial authority.
8.2. Except in the case in which the information and/or documents referred to in paragraph 8.1 constitute secret information pursuant to Article 98 of Legislative Decree no. 30/2005, the prohibition referred to in the previous paragraph will remain unconditionally in place even after the termination of the Contract, for any reason whatsoever, for the subsequent period of 3 (three) years, deemed appropriate by both Parties, without prejudice to the fall into the public domain of information that is not attributable to the Parties.
9. Partners
9.1. Swifty srl, in fulfilling its obligations under the Contract, may avail itself, at its sole discretion, of the technical, organizational and commercial cooperation of its Partners, to whom it may entrust the performance of some or all of the activities listed in these General Conditions and/or in the Order.
10. Intellectual Property
10.1. All Intellectual Property rights, including the related economic exploitation rights, on the Cloud Infrastructure, on the Software, on the Cloud Services, on the documentation, on the Updates and Developments, on the preparatory works and on the derivative works are and remain, in whole and in part and everywhere in the world, the exclusive property of Swifty srl and/or of the related third party owners indicated in the Order, in the Supplementary Conditions or in the technical support documentation.
10.2. For the sole purpose of allowing the Customer to use the Cloud Services indicated in the Order, Swifty srl grants the Customer, who accepts, a license to use the related Software that is non-exclusive, non-transferable, temporary and limited to the maximum number of Users indicated in the Order (“License”).
10.3. The Customer undertakes, also pursuant to art. 1381 of the Italian Civil Code for each User, to use the Software and the Updates and Developments within the strict limits of the License and in compliance with the Intellectual Property rights of Swifty srl or third parties. Therefore, by way of example and not limited to and in any case without prejudice to the mandatory limits of the Law, the Customer may not:
(a) circumvent the technical limitations and technological protection measures present in the Software and/or Updates and Developments, including the authentication system;
(b) decode, decompile or disassemble the Software and/or Updates and Developments;
(c) reproduce, modify, adapt, customize the Software and/or Updates and Developments or create derivative works;
(d) execute or have executed copies of the Software and/or Updates and Developments; (e) publish or have published the Software and/or Updates and Developments;
(f) use the Software and/or Updates and Developments outside the Cloud Infrastructure;
(g) market the Software and/or Updates and Developments in any capacity.
10.4. Swifty srl also retains all rights to trademarks, logos, names, domain names and other distinctive signs associated with the Cloud Infrastructure, the Software, Updates and Developments and/or Cloud Services, with the consequence that the Customer may not use them in any way without the prior written authorization of Swifty srl.
11. Customer Responsibilities and Declarations
11.1. By accepting these General Conditions, the Customer declares that it has all the rights and powers necessary to conclude and fully and effectively execute the Contract and that it wishes to use the Software (including any Updates and Developments) and the Cloud Services in the context of its entrepreneurial, artisanal, commercial or professional activity and that, therefore, the provisions of Legislative Decree 206/2005 for consumer protection do not apply to it.
11.2. The Customer undertakes to ensure that the provisions of the Contract are respected by each User. Also pursuant to art. 1381 of the Italian Civil Code, the Customer is considered exclusively responsible for the actions of such entities and also guarantees compliance with all applicable regulations, including those relating to tax and civil matters.
11.3. It is forbidden to use the Software, Cloud Services and/or Updates and Developments in order to deposit, store, send, publish, transmit and/or share data, applications or computer documents that:
(a) conflict with or violate the Intellectual Property rights owned by Swifty srl and/or third parties;
(b) have discriminatory, defamatory, libelous or threatening content;
(c) contain pornographic, child pornography, obscene or otherwise contrary to public morality material;
(d) contain viruses, worms, Trojan horses or, in any case, other computer elements of contamination or destruction;
(e) constitute spamming, phishing and/or similar activities;
(f) are in any case in conflict with the applicable legislative and/or regulatory provisions.
11.4. The customer undertakes to guarantee for its entire corporate organization (intended as employees, internal and external collaborators, owners, service providers, employees and others) that no one uses the system to try to replicate it with another software, or provides access to programmers who are responsible for copying it.
11.5. Swifty srl reserves the right to suspend the provision of Cloud Services and access to the Software to the Customer or to each User, or to prevent access to the data stored therein, if it becomes aware of a violation of the provisions of this article and/or an express request is made to this effect by a judicial or administrative body in accordance with the regulations in force. In such case, Swifty srl will communicate to the Customer the reasons for adopting the suspension of access, without prejudice to the right to terminate the Contract pursuant to the following article 19.
11.6. The Customer acknowledges that the Software, the Updates
12. Withdrawal from the market and replacement
12.1. The Customer acknowledges that the Software, Cloud Services and the environments in which they operate are subject, by their nature, to constant technological evolution that may determine their obsolescence and, in some cases, the opportunity for a withdrawal from the market and, possibly, a replacement with new technological solutions. Therefore, Swifty srl may decide, at its sole discretion, during the term of this Agreement, to withdraw from the market the Cloud Services and/or the related Software (possibly replacing them with new technological solutions). In this case:
(a) Swifty srl will communicate in writing (including by email) to the Customer, with at least six months’ notice, that it intends to withdraw from the market one or more Cloud Services and/or the related Software (each of them the “Obsolete Product”);
(b) the communication referred to in point (a) above (“Withdrawal Communication”) will contain a description of any new Cloud Service and/or Software (the “New Product”) that will replace each Obsolete Product, it being understood that the New Product may be based on technologies other than those of the Obsolete Product;
(c) where the Obsolete Product is not replaced by any New Product, the Contract will cease to have effect with respect to the Obsolete Product on the date that will be indicated by Swifty srl in the Withdrawal Communication (in any case not earlier than the last day of the sixth month following the date of the Withdrawal Communication); starting from such date, the Obsolete Product will cease to be supplied and the Customer will be entitled to a refund of any portion of the Fees already paid for the period in which it cannot use the Obsolete Product;
(d) where the Obsolete Product is replaced with a New Product, the Customer shall have the right, exercisable within 15 days from the date of the Withdrawal Notice, to withdraw from the Contract with reference to the Obsolete Product only with effect from the last day of the sixth month following the date of the Withdrawal Notice (date from which the Obsolete Product will cease to be supplied) it being understood that, otherwise, the Contract will continue to have effect (with the express exception of what is specifically indicated in the Withdrawal Notice) with reference to the New Product and any reference to the Obsolete Product shall be deemed to refer to the New Product.
13. Indemnity
13.1. The Customer undertakes to indemnify and hold Swifty srl harmless from any damage, claim, liability and/or burden, direct or indirect and including reasonable legal fees, that Swifty srl may suffer or bear as a result of the failure by the Customer and/or each User to fulfill each of the obligations set forth in the Contract and, in particular, as set forth in articles 3 (Customer Obligations), 4 (Access Credentials), 8 (Confidentiality), 10 (Intellectual Property), 11 (Customer Responsibilities and Declarations), 12 (Withdrawal from the Market and Replacement), 21 (Code of Ethics and Anti-Corruption Code of Conduct of the Swifty srl Group) and 24 (Assignment of the Contract and Prior Authorization pursuant to art. 1407 of the Italian Civil Code).
14. Authorization to use documents
14.1. By accepting the terms of use, the customer authorizes Swifty to use its documents for artificial intelligence training.
15. Swifty srl’s liability
15.1. Retica (and, in any case Swifty srl) does not issue any express or implicit declarations and guarantees regarding the fact that the Cloud Services, the Software and/or the Updates and Developments are suitable to meet the specific needs of the Customer, that they are free from errors or that they have functions not foreseen in the technical specifications and in the relative documentation.
15.2. Retica (and, in any case Swifty srl) cannot be held liable for damages, direct or indirect, of any nature and entity, that may arise to the Customer and/or to each User and/or to third parties as a consequence of the use of the Cloud Services, the Software and/or the Updates and Developments in a manner not compliant with what is provided for in the Contract and/or by the laws in force.
15.3. Retica (and, in any case, Swifty srl) will not be in any way responsible for any malfunctions and/or failure to use the Cloud Services, the Software and/or the Updates and Developments that derive from inadequate Connectivity with respect to the relevant technical characteristics.
15.4. In no case may Retica (and, in any case, Swifty srl) be held responsible for any damage or loss, of any nature or entity, deriving from the processing carried out by the Customer and/or by each User through the Cloud Services, the Software and/or the Updates and Developments, the Customer and/or the User being in any case required to verify the correctness of such processing.
15.5. Unless this is necessary to comply with legal provisions and/or requests from judicial authorities, Swifty srl is not required in any way to verify the data and content entered by the Customer and/or each User and in the Cloud Infrastructure through the Cloud Services and, therefore, cannot in any way be held liable for damages and/or losses, direct or indirect and of any nature, arising from errors and/or omissions in such data or connected to their nature and/or characteristics.
15.6. Retica (and, in any case, Swifty srl), without prejudice to the mandatory limits of the law, may in no case be held liable for any damage (direct or indirect), cost, loss and/or expense that the Customer and/or third parties may suffer as a result of cyber attacks, hacking activities and, in general, abusive and unauthorized access by third parties to the Data Center, the Cloud Infrastructure, the Software and, in general, to the computer systems of the Customer and/or Swifty srl, from which the following consequences may arise, without claiming to be exhaustive: failure to use the Cloud Services; loss of data owned or otherwise available to the Customer; and damage to the hardware and/or software systems and/or to the Customer’s Connectivity.
15.7. Except in the case of willful misconduct or gross negligence, the liability of Retica (and, in any case, Swifty srl) may never exceed the amount of the Fees paid by the Customer pursuant to this Agreement in the year in which the event from which Swifty srl’s liability arises occurred. Swifty srl may not be held liable for any damages resulting from loss of profits, loss of earnings or indirect damages, loss or damage to data, factory downtime, loss of business opportunities or other benefits, payment of penalties, delays or other liabilities of the Customer towards third parties.
15.8. It is understood that the above may not in any way limit or disapply the mandatory provisions of law provided for by the applicable legislation, including the responsibilities and obligations established by the Legislation on the Protection of Personal Data.
16. Unilateral Changes
16.1. Given the high technical and regulatory complexity of the sector in which Swifty srl operates and of the products and services offered by the latter, also considering that this sector is characterized by continuous technological, regulatory and market needs evolutions, and finally considering that, as a consequence of the above, the need periodically arises for Swifty srl to adapt its organization and/or technical and functional structure of the products and services offered to its customers (also in the interest of the latter), the Customer accepts that the Contract may be modified by Swifty srl at any time, by giving simple written communication (including via e-mail or with the aid of computer programs) to the Customer. The changes may consist of: changes related to the adjustments made to the technical and/or functional structure of the products and services offered; changes related to the adjustments made to the organizational structure of Swifty srl; changes relating to the fees owed by the Customer, which take into account the adjustments referred to in the preceding points.
16.2. In such case, the Customer will have the right to withdraw from the Contract by written communication sent to Swifty srl by registered mail with return receipt within 15 days of receipt of the written communication from Swifty srl referred to in the preceding paragraph.
16.3. In the absence of exercise of the right of withdrawal by the Customer, in the terms and ways indicated above, the changes to the Contract will be considered definitively known and accepted by the latter and will become definitively effective and binding.
17. Suspension and interruption
17.1. Swifty srl will make every reasonable effort to ensure maximum availability of the Cloud Services. The Customer, however, acknowledges and accepts that Swifty srl may suspend and/or interrupt the provision of the Cloud Services, upon written notice to the Customer, if ordinary or extraordinary maintenance interventions are necessary on the Data Center and/or the Cloud Infrastructure and/or the Software. In such cases, Swifty srl undertakes to restore the availability of the Cloud Services in the shortest possible time.
17.2. Without prejudice to the provisions of paragraphs 11.5 and 19.2, Swifty srl also reserves the right to suspend or interrupt the provision of Cloud Services:
(a) in the event of failure or late payment, total or partial, of the Fees;
(b) if there are reasons of security and/or confidentiality;
(c) in the event of violation, by the Customer and/or each User, of the legal obligations regarding the use of IT services and the Internet;
(d) in the event that problems occur in the Data Center and/or Cloud Infrastructure and/or Software that cannot be remedied without suspending the relative access, including the hypothesis of relative replacement and/or migration, even partial, in any case after written notice to the Customer regarding the reasons for the suspension and the expected intervention times.
18. Duration
18.1. Except as may be otherwise provided in the Order and without prejudice to the provisions of the following paragraphs, the Contract shall be valid until the 365th (three hundred and sixty-fifth) day following the date on which the Customer has made the last payment of the fee. Tacit renewal is not permitted.
18.2. Except as may be otherwise provided in the Order, upon first use of the Software, the Customer is granted a period of free use of the Software for the duration indicated on the website (“Trial Period”). If the Customer intends to continue using the Software after the expiration of the Trial Period, he or she must proceed to pay the Fees as provided in the Contract.
19. Withdrawal
19.1. Swifty srl reserves the right to withdraw from this Agreement at any time, by sending a PEC notice to the Customer with at least 30 (thirty) days’ notice.
19.2. In the event that Swifty srl exercises its right of withdrawal for reasons other than those referred to in the following paragraph, the Customer will be entitled to a refund of the fee for the period of non-use of the Cloud Services, if it has already been paid.
19.3. Swifty srl also reserves the right to withdraw from the Agreement by simple written notice with immediate effect, in the event of non-fulfilment by the Customer of one of the obligations assumed by the Customer in any of the possible additional contracts concluded between the same Customer and Swifty srl, obligations whose non-fulfilment constitutes a cause for termination of such possible additional contracts.
20. Express termination clause and ban from the Cloud Infrastructure
20.1. Without prejudice to compensation for damages, Swifty srl reserves the right to terminate the Contract pursuant to art. 1456 of the Italian Civil Code following the sending of a simple written communication via PEC or registered letter with return receipt in the event of failure by the Customer and/or each User to comply with even just one of the provisions: 3 (Customer Obligations), 4.3 (Access Credentials), 7.1-7.5 (Fees), 8 (Confidentiality), 10 (Intellectual Property), 11.1-11.2-11.3 (Customer Responsibilities and Declarations), 12 (Withdrawal from the Market and Replacement), 13 (Indemnity), 21 (Code of Ethics and Anti-Corruption Code of Conduct of the Swifty srl Group) and 24 (Assignment of the Contract and Prior Authorization pursuant to art. 1407 of the Italian Civil Code).
20.2. Without prejudice to the obligation for the Customer to pay the Fees referred to in Article 7, Swifty srl also reserves the right to interrupt at any time the provision of Cloud Services to the Customer in the event of: failure by the Customer and/or each User to fulfill one of the obligations referred to in paragraph 19.1; failure to fulfill one of the obligations assumed by the Customer in any of the possible additional contracts concluded between the same Customer and Swifty srl, obligations whose failure to fulfill constitutes a cause for termination of such possible additional contracts. In such cases, Swifty srl will communicate to the Customer its intention to interrupt the provision of Cloud Services, inviting the Customer, where possible, to remedy the breach within a certain period. The Customer remains in any case obliged to pay the amount due even in the event of interruption of the provision of Cloud Services.
21. Effects of termination of the Contract and return
21.1. In the event of termination of the Contract, for any reason whatsoever, Swifty srl will immediately and permanently cease providing the Cloud Services to the Customer.
21.2. Without prejudice to the provisions of paragraph 20.1, following termination of the Contract, for any reason whatsoever, the Customer will have the right to extract a copy of its data, documents and/or content through the functions of the Software for a period of 1 (one) month from the date of termination of the Contract. Alternatively, the return of such data, documents and/or content may be requested by the Customer through automated delivery methods to be agreed upon, in exchange for the payment of specifically provided fees.
21.3. Unless otherwise agreed between the Parties, where the Customer has not downloaded or requested the return of the data, documents and/or content within the term referred to in paragraph 20.2, Swifty srl will delete them permanently in compliance with the relevant legal obligations.
21.4. In any case, it is understood that the following provisions will survive the termination of the Contract, for any reason whatsoever: 1 (Scope of application of the General Conditions), 7 (Fees), 8 (Confidentiality), 10 (Intellectual Property), 11 (Customer’s Responsibilities and Declarations), 12 (Withdrawal from the market and replacement), 13 (Indemnity), 14 (Liability of Swifty srl), 21 (Code of Ethics and Anti-Corruption Code of Conduct of Swifty srl), 22 (Communications), 23 (Applicable law and exclusive jurisdiction), 25 (Novation effect), 26 (Tolerance), 27 (Invalidity and partial ineffectiveness).
22. Communications
22.1. All communications to the Customer relating to the Contract may be made to the email address communicated by the Customer in the Order. It is understood that it will be the Customer’s responsibility and care to communicate any changes in relation to the email address identified by the Customer for all communications.
23. Applicable law and exclusive jurisdiction
23.1. This contract is governed by and must be interpreted in accordance with Italian law
23.2. Any dispute relating to or arising from the Contract will be referred to a panel of three arbitrators, appointed in accordance with the Rules of the Arbitration Chamber of Reggio Emilia, who will decide according to law, with the exception of the injunction proceedings referred to in articles 633 et seq. of the Italian Code of Civil Procedure. and the related opposition phases and the proceedings, precautionary or on the merits, relating to the violation, by the Customer and/or each User, of the Intellectual Property owned by Swifty srl, for which the Court of Reggio Emilia will have exclusive jurisdiction.
24. Assignment of the contract and prior authorization pursuant to art. 1407 of the Civil Code
24.1. Unless prior written authorization is obtained from Swifty srl, the Customer is prohibited from assigning, in whole or in part, the Contract.
25. Novative effect
25.1. Any relevance of any previous individual agreements between the Parties with reference to the subject matter of the Contract is excluded, which are considered absorbed and exhaustively superseded by the discipline of the Contract.
26. Tolerance
26.1. Any failure to assert one or more of the rights provided for in the Contract may not, however, be construed as a definitive waiver of such rights and will not, therefore, prevent the punctual and rigorous fulfillment thereof from being demanded at any other time.
27. Partial invalidity and ineffectiveness
27.1. Any invalidity or ineffectiveness of any of the provisions of the Contract will leave intact the other legally and functionally independent provisions, except as provided by art. 1419, first paragraph, of the Italian Civil Code.
28. Processing of personal data
28.1. The Parties recognize and mutually acknowledge that the signing of this Contract and the execution of the Cloud Services will involve the collection and processing of personal data of the Customer (as well as parties related to them, such as attorneys, legal representatives, etc.) by Swifty srl for the purposes necessary for the execution of the aforementioned Contract and in compliance with the Legislation on the protection of Personal Data and any other applicable legal provisions. Swifty srl, as data controller, undertakes to process such data as reported in the information released by Swifty srl pursuant to Article 13 of the GDPR.
28.2. It is understood that the Customer is the data controller pursuant to the GDPR with respect to the personal data of third parties (the “Third Party Personal Data”) to which Swifty srl will have access for the provision of the Cloud Services. With respect to such data, Swifty srl will act as data processor pursuant to art. 28 of the GDPR (the “Processor”) and the Parties agree to comply with the provisions thereof. If the Customer acts, in turn, as data processor on behalf of a third party controller, the Customer guarantees that the latter has authorised the use of Swifty srl as sub-processor of the processing (the “Sub-Processor”) pursuant to arts. 28 and 29 GDPR.
28.3. With respect to Third Party Personal Data, the Customer will remain fully responsible for fulfilling towards the data subjects all the obligations provided for by the GDPR and the Legislation on the protection of Personal Data applicable to it as data controller. Swifty srl assumes no responsibility for the consequences arising from the Customer’s failure to comply with the obligations incumbent on it as data controller, except as a result of and within the limits of any violations committed by Swifty srl itself as data controller or violations of the MDPA.
29. Authorization to grant Logo and Brand
29.1. The customer authorizes Swifty to mention it among its customers, using its name and logo on advertising and information material such as websites, brochures and other.
Pursuant to and for the purposes of Articles 1341 and 1342 of the Civil Code, the Customer declares to have read, examined and specifically approved the following clauses of the Contract: 1.2, 1.4 (Limitations of liability of Swifty srl); 3 (Obligations of the Customer); 4.2, 4.4 (Commitments of the Customer regarding the Access Credentials and limitations of liability of Swifty srl); 5.2 (Object of Assistance); 6 (Subject of Updates and Developments and limitation of liability of Swifty srl); 7.3, 7.4, 7.5, 7.6, 7.7, 7.8 (Adjustment of Fees, unilateral modification of Fees, interests, suspension of performance, right of withdrawal from other contracts, limitation of the possibility of making exceptions and prior authorization for assignment); 8 (Confidentiality); 9 (Partners); 10.2, 10.3, 10.4 (Customer Obligations in relation to the License and Intellectual Property); 11 (Customer Responsibilities, prohibitions on the Customer, right to suspend Cloud Services and open source software); 12 (Withdrawal from the market and replacement of products); 13 (Indemnity); 14 (Limitations of liability of Swifty srl); 15 (Unilateral right of modification of Swifty srl); 16 (Suspension and interruption of the provision of Cloud Services); 17.3, 17.4 (Term of the Contract in case of stipulation following the termination of a previous contract and Trial Period); 18 (Withdrawal of Swifty srl); 19 (Express Termination Clause and Interdiction from the Cloud Infrastructure); 20.2, 20.3, 20.4 (Conditions for the Return of data and survival of clauses); 21 (Express termination clause); 23.2 (Exclusive jurisdiction); 24 (Prohibition of assignment of the Contract and prior authorization for assignment).