1. DEFINITIONS The terms that are defined below have the meaning attributed to them; words in the singular include the plural, and vice versa; words importing any gender include all genders; and the headings are for convenience only with them not affecting interpretation.
1.1. "Affiliate" means any incorporated entity belonging to the Octo Group.
1.2. "Applicable Laws" means national and European Union laws and regulations, decisions, orders, permits, licenses and authorizations that apply to the supply/use of the Platform Solutions and provision of the Services in the Territory, including Data Protection Rules.
1.3. "Business Day or BD" means a day which is a working day in the Territory.
1.4. "CAR Sharing Option" means the electronic tools made available through the Platform to allow the selection and the supply to EU of car sharing services.
1.5. "Collect Point Agent or CPA" means the person who, on behalf and under the responsibility of CM, if appointed by the CM, is responsible for the rental and use of the Vehicle in the area defined by CM within the Territory.
1.6. "Collect Point or CP" means the site where the Vehicle is parked and ready for being used for a duration at least equal to the Minimum Rental Period but not exceeding the Maximum Rental Period.
1.7. "CM Credentials" mean the personal user name and password to be used by CM candidate to log onto the Platform and access the Platform Solutions.
1.9. "CM R&W" has the meaning set forth in Clause 10 of these T&C.
1.10. "CM T&C" means the general terms and conditions governing the contractual relationship between CM and EU in respect of the supply and use of the Services that will mandatory include the following: (i) the obligation of CM to supply the Services and to ensure that the Services are used by EU in compliance with the Applicable Laws, (ii) the representation and warranty of EU that, depending on the concerned Service, is either a citizen of the European Union/eligible to drive a Vehicle in the Territory or an entity incorporated under the laws of the European Union, and (iii) the indication of the Maximum Rental Period and the Minimum Rental Period for each concerned Service in compliance with the Applicable Laws, and that will be drafted according to the form enclosed herewith.
1.11. "Community" means a virtual community that is created by CM on the Platform according to the Community Specifications and in compliance with the Community Criteria in order to supply the Services.
1.12. "Community Block" means the locking mechanism preventing CM/EU to access the concerned Community that may be triggered upon occurrence of the events specified throughout these T&C and in any case of misuse of the Platform.
1.13. "Community Criteria" mean the criteria including: (i) the EU Limit, (ii) the Vehicle Limit and (iii) other details required in the form to be filled in and to be complied with by CM in order to create and operate a Community to supply the Services.
1.14. "Community Manager" or "CM" means any natural or legal person registered as value added taxpayer accessing the Platform and using the Platform Solutions for business purposes who may or may not be a Vehicle Owner.
1.15. "Community Specifications" means the features of each Community that may be created by CM upon completion of the Registration Process.
1.16. "Confidential Information" has the meaning attributed to it in Clause 7.1 of these T&C.
1.17. "Contract" has the meaning attributed to it in Clause 2.2 of these T&C.
1.18. "Data Controller" means any natural or legal person, public administration, body, association or other entity that is competent, also jointly with another data controller, to determine purposes and methods of the processing of Personal Data and the relevant means, including security matters, as defined according to Data Protection Rules.
1.19. "Data Processor" means any natural or legal person, public administration, body, association or other agency processing Personal Data on the Data Controller’s behalf, as defined according to Data Protection Rules.
1.20. "Data Protection Rules" means law, regulations and guidelines, opinions, code of ethics and policies issued and/or approved by the national and European data protection authorities governing any processing of Personal Data applicable in the Territory, including the national data protection legislation of such Territory and the European Regulation 679/2016, when it will come into force, as amended from time to time.
1.21. "Driver" means the individual who posts an announcement containing an invitation to join a certain trip within the context of the supply of the Ride Sharing.
1.22. "Duration" has the meaning attributed to it in Clause 15 of these T&C.
1.23. "End User" or "EU" means any natural or legal person that is, respectively, a citizen of the European Union or eligible to drive a Vehicle in the Territory or an entity incorporated under the laws of the European Union who becomes part of a Community in order to access and use the Services.
1.24. "EU Credentials" means the personal user name and password to be used by the EU candidate to log onto the Community and access the Services.
1.25. "EU Data" has the meaning given to it in Clause [9.6].
1.26. "EU Limit" means the maximum number of End Users that can be part to each Community which may vary depending on the selected Option and the selected Plan available in the section of the Website dedicated to commercial plan and fees.
1.27. "Excluded Features" means collectively all the services and activities in general referable to the check and monitoring of the safety and technical compliance of the Vehicles falling outside the perimeter of the Platform Solutions provided by WM.
1.28. "Expiration Date" has the meaning set forth in Clause [15.1] of these T&C.
1.29. "Extra Features" means the additional services as better described in the dedicated section of the Website that can be made available from time to time by WM on the Platform in order to be offered to CM in exchange for the Extra Features Fee.
1.30. "Extra Features Fee" means the fee to be paid by CM to WM in exchange for the Extra Features according to the section of the Website dedicated to Extra Features.
1.31. "Force Majeure Event"" has the meaning attributed in Clause 14 of these T&C.
1.32. "Free Trial" means the special offer eventually granted at its sole discretion by WM to CM of a period, as described on the Website, for the use of the Platform Solutions that is offered by WM to CM on a "free of charge" basis according to Clause [3.19] of these T&C.
1.33. "Governing Law" means the Italian law, which is the law under which these T&C and the Contract shall be governed and interpreted.
1.34. "ICC" means the Italian Civil Code enacted by Royal Decree 16 March 1942, no. 262, as subsequently amended and integrated.
1.35. "Justified Reason" means the issuance or enactment, as the case may be, of a legislative or regulatory amendments or decision of authorities due to reasons of efficiency, enhanced security or other technical or operational matters that may affect the Platform, the Platform Solutions, the Community and/or the Services.
1.36. "Loss" means any loss (including any loss of profit (mancato guadagno), liability, damage, cost or expense (including legal ones).
1.37. "Maximum Rental Period" means the maximum Rental Period EU is allowed to use a Vehicle under the CM T&C.
1.38. "Merchant" means the entity that if available will be eventually in charge of the payment process in accordance with terms and conditions set forth in the payment section of the Website.
1.39. "Minimum Rental Period" means the minimum Rental Period EU is required to use a Vehicle under the CM T&C.
1.40. "Octo Group" means any company that is controlling or it is under control of Octo Telematics Ltd.
1.41. "Octo Indemnitee" has the meaning ascribed to it under Clause 11.2 below.
1.42. "Options" means collectively the Car Sharing Option and the Ride Sharing Option and other possible Options made available from time to time by WM.
1.43. "Parties" means collectively WM and CM.
1.44. "Passenger" means EU who accepts to join the trip announced by a Driver within the context of the supply of the Ride Sharing if available.
1.45. "Personal Data" means any information relating to a natural person, identified or identifiable, also indirectly, by reference to any other information, including a personal identification number, as defined according to Data Protection Rules.
1.46. "Plan" means the commercial offers made available by the WM including economics and functional conditions of use of Platform and Platform Solutions offered to CM.
1.47. "Platform Fee" means the fee to be paid by CM to WM in exchange for the Platform Solutions according to the section of the Website dedicated to economic conditions, plus VAT.
1.48. "Platform Solutions" mean the solutions CM may benefit from by accessing the Platform after completion of the Registration Process including the following features if available on the Website: (a) creation of a Community, (b) the of the Options, (c) customer service in respect of the use of the Platform, (d) management of the payment of the Service Fee if available, and (e) Extra Features that may be made available from time to time. The Platform Solutions do not include the Excluded Features.
1.49. "Platform Period" means any initial or subsequent period of 12 months each starting from the Registration Date or from each Renewal Date, as the case may be.
1.51. "Protected Data" has the meaning attributed to it in Clause 9.6 of these T&C.
1.52. "Registered Member or RM" means any CM following successful completion of the Registration Process.
1.53. "Renewal Date" has the meaning attributed to it in Clause 15 of these T&C.
1.54. "Rental Period" means the time-period a Vehicle is used by EU in accordance with the concerned Service description that cannot be longer than the Maximum Rental Period nor shorter than the Minimum Rental Period as provided for by the CM.
1.55. "Registration Date" means the date and time of the Registration Process completion.
1.56. "Registration Process" means the process of registration to the Platform described in Clause 3 of these T&C.
1.57. "Ride Sharing Option" " means the electronic tools made available through the Platform to allow the selection and the supply to EU of the ride sharing services.
1.58. "Services" mean collectively the services provided through Platform Solutions by CM to Eu and regulated by CM T&C.
1.59. "Service Fee" means the fee to be paid by EU to CM in exchange for the Services as required in accordance with the selected Plan available in the section of the Website dedicated to commercial plans and fees.
1.60. "Sharemine" or the "Platform" means the platform PAAS (Platform As A Service) type realized by WM to supply the Platform Solutions to CM in exchange for the Platform Fee.
1.61. "Territory" means the geographical area corresponding to [the territory where the CM directs the Service to EU].It is understood that Countries where Platform Solutions are available and Services can be offered by Cm are: Italy, France, Spain and UK.
1.62. "T&C" means these general terms and conditions governing the contractual relationship between WM and CM in respect of the use of the Platform and, to the extent applicable, the supply of the Services too"
1.63. "Vehicle" means any vehicle complying with the Vehicle Features that is made available to a certain Community in order to allow the supply of the Services.
1.64. "Vehicle Devices" means the devices that, if available, are described in the section of the Website dedicated to devices and included in the Extra Features.
1.65. "Vehicle Features" means any vehicle that is eligible to circulate and to be used and/or exploited in accordance of requirements of Services offered by CM in the Territory in compliance with the Applicable Laws.
1.66. "Vehicles Information" means the information, including the Vehicle Owner, each CM will be required to enter into the Platform in respect of the Vehicle(s) that is/are intended to be made available within a certain Community as indicated in the Website.
1.67. "Vehicle Limit" means the maximum number of Vehicles that can be made available to CM in accordance with the selected Plan available in the section of the Website dedicated to commercial plans and fees.
1.68. "Vehicle Owner" means the legal or natural person that is the actual registered owner of the Vehicle under the Applicable Laws.
1.69. "Website" means http://www.sharemine.com/.
1.70. "Website Manager" or "WM" means Omoove S.r.l., a company incorporated and operating under Italian law, with registered office at via Vincenzo Lamaro 51, 00173 Rome, corporate capital of Euro 100.000, 00 fully paid up, tax code 13937261009 and registration no. RM - 1484079 with the Company Register of Rome.
2.1. The purpose of these T&C is to set forth the general terms and conditions governing, on an exclusive basis, the contractual relationship that is entered into by and between WM and CM in respect of the Platform Solutions made available by the former to the latter and, in general, the access to and the use of the Platform and including key terms of relationship CM and EU and data management rules.
2.2. Upon acceptance of these T&C and the PP within the context of the Registration Process, CM shall be entering into a binding agreement with WM ("Contract") that will be governed by the provisions of these T&C and by the Governing Law for what not expressly contemplated herein.
2.3. By entering into the Contract, WM will be granting CM a non-exclusive, non-licensable and non-transferable right to access the Platform and to use the Platform Solutions. All rights not expressly granted to CM herein are expressly reserved to WM.
2.4. Unless it is provided otherwise in these T&C and to the extent that is expressly specified herein, WM shall not anyhow be involved in any contractual relationship that will be entered into by and between CM and EU in connection with the supply of the Services; therefore, these T&C shall apply to the supply of the Services only to the extent CM will be required to comply with relevant terms and conditions in connection with the supply of the Services.
2.5. As far as the supply of the Services is concerned, WM will be involved only insofar as the management of the Website and the Platform will be requiring so. In this respect, the involvement of WM will not have any purpose other than facilitating the connection between CM and EU.
3. PLATFORM SOLUTIONS
Section 1 – Registration Process
3.1. The Platform is for the exclusive use of the Registered Members within each Community.
3.3. WM may reject the application of the CM candidate anytime, at its sole discretion, before confirming the successful completion of the Registration Process. Should WM become aware that any information entered into the Platform by CM during the Registration Process is false or incorrect, it may activate, at its sole discretion, a Community Block in respect of the Community created by the responsible CM.
3.4. In order to access the Platform, CM, once a Registered Member, shall every time connect to the Website and enter its CM Credentials.
3.5. The Platform works 24 hours a day, 7 days a week, except in case of:
The concerned Party shall inform the other Party about the occurrence of any of the above events as soon as it becomes aware of it.
3.6. CM acknowledges and agrees that the CM Credentials are personal, confidential and non-transferable. CM consequently undertakes to keep its CM Credentials confidential. In case CM Credentials are lost and/or disclosed, CM shall immediately inform WM who will then proceed to cancel and/or update the CM Credentials immediately afterwards by following the standard procedure that will be adopted by WM to this purpose.
3.7. Each CM is fully responsible for the use of its Credentials, even when they have been lost, used by third parties and/or disseminated, until the Registered Member has effectively communicated the loss to WM. It is understood that in any case WM shall not be deemed responsible in respect of any communication and/or action made by third party and/or unauthorized entity.
Section 2 – Selection of Options
3.8. Once a Registered Member, as a result of the successful completion of the Registration Process, CM will be requested to select the Option(s) among those available in the Website.
3.9. Upon completion of the selection of Options procedure, CM shall receive an automatically generated message of confirmation with consequent habilitation to create a Community.
3.10. CM acknowledges and agrees that the Services are the only Services that may be supplied by CM to EU through the Platform, save for the Extra Features that may be from time to time made available by WM to CM.
Section 3 – Creation of a Community
3.11. Upon successful completion of the selection of Options procedure, CM will become eligible to create a Community.
3.12. In order to create a Community, CM will have to follow the web procedure and to enter all information required.
3.13. Upon completion of the creation of Community procedure, CM shall receive an automatically generated message of confirmation with consequent habilitation to supply the Services to EU.
3.14. Following the creation of a Community, CM will be entitled to create additional Communities by selecting the relevant Option in the Platform, within the limits set forth therein.
3.15. CM acknowledges and agrees that a Community may be created and may operate only in compliance with the Community Criteria and according to the Community Specifications.
3.17. CM acknowledges and agrees that in order to access the Community, EU shall every time connect to the Website and enter its EU Credentials.
3.18. CM shall be responsible to verify that the information entered and consent provided by EU to access the Community are correct, complete and adequate for the purposes needed and that the access by any EU to a certain Community will not trigger any violation of these T&C, the PP, the CM T&C or any Applicable Laws. Any violation of this provision WM may become aware of may trigger the Community Block.
Section 4 - Free Trial
3.19. Upon successful completion of the Registration Process, the Registered Member may opt for the Free-Trial, if made available at its sole discretion, by the WM, by selecting the relevant Option. The Free Trial includes the eligibility to make use of the Platform Solutions and select the applicable Options for a limited time-period. The Free Trial is intended to provide complete functionality of all Platform Solutions in order to enable CM to fully evaluate the Platform and all its features.
3.20. 3.20. nce the Free Trial option which WM in its discretion may grant to CM is successfully chosen, CM will be eligible to complete the selection of Options and the creation of Community procedures respectively described in Section 2 and Section 3 above.
3.21. Upon expiration of the Free-Trial, CM will be redirected to the selection of Options section. The non-activation of the selection of Options procedure shall trigger the Community Block in respect of the Community created by the concerned CM and the consequent termination of the relevant Contract.
3.22. Section 5 – Platform Fee As consideration for the use of the Platform Solutions, in accordance with the Plan selected and related economic conditions available in the section of the Website dedicated to plans and fees, CM shall pay in favor of WM the Platform Fee according to what set forth here below in this Section 5.
3.23. The Platform Fee is due in advance of each Platform Period. The first payment of the Platform Fee shall be made by CM, as the case may be, upon completion of Registration Process or immediately after expiration of the Free Trial. The following payments shall be made on a monthly-basis on the same day of each month when Registration Process was completed.
3.24. Until the Expiration Date, WM shall issue to CM invoices for the Platform Fees paid.
3.25. Payment of the Platform Fee may be delayed only for those items of the invoice for which CM promptly notifies to WM the detailed reasons of complaint. If the complaint is accepted, WM will issue a credit note. If the complaint is contested by WM, the Parties shall endeavor to resolve the issue within 30 BD from the receipt of the complaint by WM. Interest at Euribor plus 2 (two) percent applies to any delayed payment due by CM.
3.26. The Platform Fee paid shall not be reimbursed if anticipated withdrawal from, or termination of the Contract occurs pursuant to, respectively. Clauses 16 and 17 below before the end of the relevant Platform Period.
3.27. Any default on payment or delay in the payment of the Platform Fee due to reasons other than those described in Clause 3.25 above may trigger the Community Block.
Section 1 – Obligations of CM
4.1. CM shall supply the Services without undermining its undertakings towards WM and, in general, its obligations under the Contract and these T&C.
4.2. CM shall promptly inform WM about any event and circumstance occurred within the context of the supply of the Service that may reasonably impair its ability to perform the Contract under these T&C and/or trigger a breach thereof.
4.3. Once informed by CM under Clause 4.2 above, WM shall decide, at its own discretion, the measures to be adopted to mitigate the risks that may stem out of it and to possibly remedy the relevant consequences.
4.4. CM shall ensure that:
4.4.1. the selected Service is adequately supplied by authorized entity and used in compliance with the Applicable Laws and the CM T&C;
4.4.2. any individual involved by CM in connection with the supply of the selected Service or any other natural or legal persons involved are duly trained to use the features of the Community and the Service connected therewith;
4.4.3. the End Users are given reasonably complete information regarding the contents of the Platform, the Community and the selected Service(s);
4.4.4. in accordance with clause 3.16 the End Users are given the details of the most appropriate contact center to be contacted by the End Users;
4.4.5. the CM T&C is accepted by each End Users within the context of the access to the concerned Community so that CM may get evidence of it and communicate it to WM. Upon WM request, CM shall immediately send the signed CM T&C to WM;
4.4.6. Translation of documents relating to Services into a language different from English and for the accuracy of the translation. The translation costs shall be borne by CM. In this connection, in order to offer the Service in the Territory, the CM should make available to the EU such documents in the EU language as required by Applicable Laws of the Territory.
4.4.7. The CM acknowledges and agrees: i) that under the current legal and regulatory applicable framework in the Territory rental business activities can be performed and provided only if administrative and regulatory requirements are fulfilled; ii) as consequence, rental services between private persons and/or using cars not equipped with required documents and/or offered by a not authorized entity and/or without the administrative complied with are not allowed. Therefore, the CM acknowledges and agrees that it shall not offer, at any title, Services not fully in compliance with applicable law and all applicable requirements including those requirements above listed that cannot be considered exhaustive. Any violation of this provision may trigger the Community Block.
Section 3 – Payment of Service Fee
4.5. CM shall use, in accordance with conditions described in the dedicated section of the Website, the payment service eventually available among the Extra Features; otherwise CM shall be the sole responsible for collecting Service Fees.
Section 4 – Vehicle Device
4.6. If included among Extra Features available, upon request of CM and previous authorization of the Vehicle Owner WM shall provide a Vehicle Device in accordance with the procedure described in the section of the Website dedicated to devices.
5. EXTRA FEATURES
5.1. The Extra Features that, subject to availability, may be offered to CM upon specific request are those indicated and described, from time to time, in the section of the Website dedicated to Extra Features together with the terms and conditions regulating the relevant use and supply.
5.2. In exchange for the supply of the Extra Features, CM shall pay the Extra Features Fee specified in the section of the Website dedicated to Extra Features.
6.1. Mandatory changes - In case of occurrence of a Justified Reason, WM shall be entitled to modify the Platform Solutions and their conditions by publishing the consequently required change on the Website or by any other means that WM may reasonably deem as being appropriate to inform CM about the required change
6.2. Additional changes - In any case other than the occurrence of a Justified Reason, WM reserves the right to change the features of the Website and/or the Platform Solutions. Such being the case, WM shall inform CM about these changes by publishing them on the Website or by any other means that WM may reasonably deem as being appropriate to inform CM, if CM does not oppose the proposed change within 15 BD from the date on which it is informed about it, the updated version will become fully valid and operating.
7. INTELLECTUAL PROPERTY
7.1. Intellectual Property Rights of WM/Octo Group - Any intellectual property rights, proprietary information, know-how, data base, trade secrets, software, firmware, features and specifications of the Platform, the Website, the Platform Services (including the Options) and any relevant subsequent developments, evolution or improvements, trademarks and trade names, either patented, registered or not, of WM and/or Octo Group, WM or Octo Group has a license or consent by the owner, and any other information which may be of interest of the competitors of WM and/or Octo Group and which is disclosed, supplied or used for the implementation of the Platform (regardless whether or not is stamped or otherwise qualified as confidential) ("Confidential Information"), shall remain the exclusive property, as the case may be, of WM, Octo Group or of the above mentioned owner. CM shall not dispute or challenge such ownership and related rights and shall not do anything to diminish such rights.
7.2. Use of Confidential Information - The disclosure, supply and/or use of the Confidential Information is granted to CM on a non-exclusive basis and is limited to the purposes of the Platform Solutions only. The disclosure, supply and/or use of the Confidential Information cannot be construed as the granting to CM, EU or any third party of a license, or any other right or consent to use the Confidential Information, whole or part thereof, in any manner.
7.3. Protection of Confidential Information - CM shall exercise all reasonable efforts to prevent any third parties from having access to Confidential Information and shall keep all copies thereof in a secure location inaccessible to any persons not authorized to receive the Confidential Information. CM may give access to the Confidential Information to its officers, employees, agents and consultants, and, in general, to any other person to whom access must be given for the implementation of the Platform Solutions. CM shall take the reasonable necessary measures to ensure that any person to whom access to the Confidentiality Information is given undertakes the same obligations for the benefit of WM undertaken by CM under these T&C, but CM shall be responsible for any breach of the confidentiality obligations by such persons.
7.4. Exceptions - The confidentiality obligations set forth in this Clause shall not apply to the information which:
7.4.1. the recipient can demonstrate that the information was lawfully known to the recipient prior to receipt thereof as evidenced by written records dated prior to such receipt;
7.4.2. is or becomes publicly available other than by violation of confidentiality obligations;
7.4.3. becomes available to the recipient on a non-confidential basis from a source other than WM and which, to the best of recipient’s knowledge after due inquiry, is entitled to disclose it, or
7.4.4. is required by law to be disclosed by the recipient to any authority under any applicable lawful mandatory orders, according to the terms of such orders, provided that WM is given by the recipient prompt written notice of such requirement prior to such disclosure and provides WM assistance in obtaining an order protecting the information from public disclosure;
7.4.5. a Party is obliged to communicate or disclose (even within documents of offer of equity or debt to the public o institutional investors) in compliance with a lawful order of any authority or pursuant to law or regulation, provided that – to extent possible and/or legally permitted - in this case, the Party shall give prior notice in writing to the other.
7.5. Remedies - If the Confidential Information is used or disclosed by CM other than in accordance with these T&C, WM and/or Octo Group shall be entitled to obtain from the competent Court an injunction in addition to damages or any other remedy to which they may be entitled under the Governing law.
7.6. Intellectual Property Rights of CM - Any intellectual property rights, proprietary information, know-how, data base, trade secrets, software, firmware, features, of CM, or for which CM has a license or consent by the owner, which is disclosed or supplied to WM and/or Octo Group for the implementation of the Platform Solutions (regardless whether or not is stamped or otherwise qualified as confidential), shall remain the exclusive property, as the case may be, of CM or of the above mentioned owner. WM shall not dispute or challenge such ownership and related rights and shall not do anything to diminish such rights. CM shall grant, or procure the abovementioned owner shall grant, WM and/or Octo Group, license or consent to use such rights for the purposes of supplying of Platform Solutions to CM or third parties.
8. THIRD PARTY INTELLECTUAL PROPERTY
8.1. Notice of Claims - Whenever CM becomes aware of any claim by any third party that the Platform Solutions and/or the Services constitute an infringement or misappropriation of any intellectual property rights of a third party, CM shall notify WM giving the details of the claim and any other information of which is aware.
8.2. Remedies - WM shall have the right to change the Platform Solutions and any part or component of the Platform so as to avoid any infringement or misappropriation, of a third party's intellectual property rights, as WM shall in its sole discretion decided.
9. DATA PROTECTION
9.1. Compliance with law - Having regard to Personal Data processed in the performance of the Contract, each Party will act in accordance with the applicable Data Protection Rules.
9.2. WM and CM shall ensure that any Personal Data communication will be carried out in full compliance with the information statement provided to the data subjects at the time of collection of the Personal Data.
9.3. Subject to Clause 9.7 below, WM and CM undertake to retain any Personal Data processed in the performance of these T&C and of the Contract for the period strictly necessary for the performance of the connected activities and WB in accordance with instructions included in the Appointment Letter attached herein.
9.4. CM undertakes to indemnify and hold WM harmless from any claim that may be brought as a result of any complaint and/or unlawful processing of such data carried out by CM.
9.5. For the supply of Platform, WM will process the Personal Data regarding the supply of Services by CM as external Data Processor. To this end CM appoints WM as its external Data Processor according to the terms described in the Appointment Letter attached herein.
9.6. According to such appointment, WM, as external Data Processor, will process and store the collected data, including the names, other details and the data and information received by CM or obtained by WM regarding EU ("EU Data"), in compliance and in accordance with the instructions therein provided or to be provided by CM acting as Data Controller, and according to the applicable personal data protection laws regarding those data and information transmitted which are covered by the above mentioned laws ("Protected Data"). In case no such purposes and methods are determined by CM, WM will act according to its policy on personal data processing and, in any case, in compliance with the applicable Data Protection Rules. In particular, WM shall maintain appropriate technical and organizational measures, processes and procedures in place to safeguard against any unauthorized or unlawful access, loss, destruction, corruption, theft, use, processing or disclosure of the Protected Data.
9.7. Data not referred to identified persons - WM shall have free, full and undisputed right to use free of charge any and all data, and information, also having specific regard to EU Data, received and processed by CM, without any reference to identified or identifiable persons or in aggregate or statistical form for any purpose, including purposes of quality improvement or enhancement of the Platform and technical infrastructure and services of the WM and its Affiliates
9.8. Obligations of WM – WM, acting as external Data Processor, shall:
9.8.1. as soon as reasonably possible notify CM about any request for disclosure of the Protected Data by a regulatory or law enforcement authority, unless there is a requirement to preserve the confidentiality of the request or disclosure;
9.8.2. as soon as reasonably possible notify CM about any accidental or unauthorized access which has, or may, or is likely to affect the Protected Data;
9.8.3. as soon as reasonably possible deal with all inquiries from CM relating to any processing by WM of the Protected Data;
9.8.4. not disclose the Protected Data to a third party unless otherwise agreed with CM in advance or obliged to do so under any statutory requirement;
9.8.5. on request by CM, co-operate with and as soon as reasonably possible provide CM with all information which CM may require in order to comply with requests from the any appropriate regulatory authority with powers under the Applicable Laws.
WM runs an Information Security Management System (ISMS) and a Quality Management System (QMS) that are compliant with ISO/IEC 27001:2013 and ISO 9001:2015.
9.10. If CM is not ISO compliant in accordance with clause 9.9 above, CM acknowledges and accepts that WM will provide systems and services consistent with the ISO/IEC 27001:2013 and ISO 9001:2015 and undertakes to follow WB’s instructions given to comply with ISO System.
9.11. The Applicable Laws may require the non-European Union CM to appoint a representative in the European Union territory. In such case, the relative costs and expenses shall be borne by CM.
9.12. Information - In the event that either Party becomes aware of any unauthorized, unlawful or dishonest conduct or activities, or any breach of the terms of these T&C relating to Protected Data, such Party shall forthwith notify the other Party in respect thereof of any such breach implying, even if only potentially, a violation of the Data Protection Rules.
9.13. EU Data - With respect to the names, other details and the data and information received by CM or obtained by WM regarding EU, without prejudice to this Clause 9 WM acting as data processor duly appointed by CM acting as Data Controller shall have free, full and undisputed right:
9.13.1. to process and retain the names and other personal details and data of EU and any other relevant information for the purposes of fulfilling the obligations of WM under these T&C; and
9.13.2. to use free of charge any and all data and information received and processed by CM, even in aggregate or statistical form and/or for purposes of quality improvement of its technical infrastructure and services. CM shall be responsible to acquire from data subject consent required by provision included in these T&C and especially in this clause 9.
9.14. 9.14. It is understood between the Parties that all provisions included in the clause 9 are applicable also to WM Affiliates.
10. CM R&W
10.1. By entering into the Contract and so accepting these T&C, CM makes the following representations and grants the following warranties ("CM R&W"):
10.1.1. all terms and conditions set forth throughout the Contract and these T&C are clear and reasonable in all respect and an adequate level of information has been provided in this regard;
10.1.2. the Services will be performed and supplied using reasonable skill, care and diligence and in accordance with the Applicable Laws;
10.1.3. each Community created by CM complies with Community Criteria and the selected Community Specifications;
10.1.4. each Vehicle made available in the context of each Community created by CM complies with Vehicle Features;
10.1.5. all of the personnel assigned by CM to the supply of the Services and, in general, all individuals that may be involved to these purposes shall have the requisite skills, experience, qualifications and knowledge for the tasks assigned to them;
10.1.6. all of the obligations of CM under these T&C shall be fulfilled in compliance with the relevant provisions and observing all of the Applicable Laws;
10.1.7. CM has full capacity and authority and all necessary governmental, administrative and regulatory authorizations, complies with all regulatory requirements as provided by the Applicable Laws necessary for the operation of the Services in the Territory and has and all necessary intellectual property rights to use the Platform and to supply the Services;
10.1.8. the performance by CM of the obligations under the Contract, these T&C and, in general, in the offer and supply of the Services are not in breach of any intellectual property rights of any third party;
10.1.9. the IT system of CM shall always be protected with updated firewalls and other anti-virus systems available on the market and adequate to the activities, assets and financial status of CM;
10.1.10. every EU that will be allowed to access a Community and to use the Services will be entitled to do so under all Applicable Laws, having full title and capacity to exercise the rights and undertake the obligations arising out from the entry into the relevant contract;
10.1.11. the execution of each and every contract by and between CM and EU shall entail the acceptance and consequent application of the CM T&C embedding the mandatory provisions contemplated in the "CM T&C" definition in Clause 1.10 above;
10.1.12. there are no material outstanding litigation, arbitration or other disputed matters to which CM is a party which may have a material adverse effect upon the fulfilment of CM obligations and the execution in general of these T&C;
10.1.13. CM is in possession of the insurance policies and has been granted adequate guarantees that may be required in connection with the supply of the Services under the Applicable Laws;
10.2. The above representations and warranties are intended to be true, correct and accurate in all respects on the date of execution of the Contract and for its entire Duration.
10.3. The above representations and warranties shall be intended for the exclusive benefit of WM and/or Octo Group and there are no other express or implied obligations, warranties or conditions that may anyhow affect the relevant truthfulness, correctness and accuracy.
11. CM LIABILITY
11.1. Violation of CM R&W - in case of violation by CM of the CM R&W, CM shall immediately act - at its own costs and expenses – to mitigate and remedy the consequences that may arise out of it. Unless the consequences of said breaches are fully remedied within the following 10 BD with no Loss nor outstanding claims against WM, the provisions set forth in Clauses [11.2 and 11.3] shall apply.
11.2. Indemnification - CM undertakes, for the entire Duration of the Contract, to indemnify and keep WM and each of its Affiliates (each, an "Octo Indemnitee") harmless from any and all Losses suffered by such Octo Indemnitee as a result of the untruthfulness, incompleteness and/or inaccuracy of any of the CM R&W, within the limits set out in Clause [11.3] below, without duplication.
11.3. Limitation of liability - Notwithstanding anything to the contrary which may be stated in these T&C and/or in the Contract and/or the Governing Law, the maximum liability of CM in respect of its indemnification undertaking pursuant to Clause 11.2 above due to a violation of the CM R&W shall not exceed the higher of (i) Euro 1.000.000,00, and (ii) the amount of Service Fees paid through the Extra Feature according to Clause 4.5 (if available) and generated by all the Services provided by that CM in the prior 12 months, without prejudice to Clause 11.4 below.
11.4. Restoration from Losses – Without prejudice to Clauses 11.1 to 11.3 above, CM shall fully restore the Octo Indemnitee from the Losses incurred as a result of any other default on its obligations under these T&C and/or the Contract, without prejudice to the remedies set forth in Clauses 17 below.
11.5. Right of defense - Whenever becomes aware of even a potential claim from a third party (including EU) that may cause a Loss to any Octo Indemnitee, CM shall notify it immediately to WM providing all details in respect thereof. WM shall then, at its sole discretion, decide to either challenge or settle said claim by coordinating with and providing to CM the relevant instructions; CM shall support to the greatest possible extent WM in this respect and duly and fully comply with the instructions received.
12. WM R&W
12.1. Save for what mandatorily provided under the Governing Law, WM does not, even implicitly, make any representation nor grant any warranty in respect of either the Platform or the Platform Solutions including as far as title, non-infringement, merchantability, suitability for desired purposes, system integration and data accuracy are concerned.
12.2. The Platform and the Platform Solutions are provided "as is" and no representation is made nor warranty is granted on the fact that: (i) the Platform, and/or the Platform Solutions meet the CM’s requirements, (ii) the Services or the Website operate in the combinations which CM may select for use or (iii) the operation of the Platform or of the Platform Solutions can be uninterrupted, or error-free.
13. WM LIABILITY
13.1. To the extent permitted by Governing Law, WM shall not be liable for: (a) functioning, limitations, alternation, interruption and defects of the Platform and/or (b) failure to supply in a duly manner and on regular basis the Platform Solutions, whenever any of these is caused, in whole or in part, by: (i) misuse of the Platform or incorrect access to the Platform Solutions, (ii) misconduct, unauthorized act or behavior of CM within the context of either the execution of the Contract or the supply of the Services, (iii) any of the events listed in Clause 3.5 above of these T&C, and (iv) the enactment of any new law or regulation that may apply in this respect.
13.2. CM acknowledges and agrees that WM has no control over the internet; therefore, WM shall not be held liable for: (i) the discontinuance of operation or malfunctioning of any portion of the internet, and/or (ii) the enactment of any new law or regulation that might restrict or prohibit the supply and/or use of the Platform Solutions.
13.3. Limitation of liability - Notwithstanding anything to the contrary which may be stated in these T&C and to the extent permitted under the Governing Law, the maximum liability of WM and any of its Affiliates, in respect of a default on any of its obligations under the Contract and/or these T&C shall not exceed the amount equal to the Platform Fee paid by CM during the previous Platform Period.
14. FORCE MAJEURE
14.1. CM and WM shall not be responsible for failure or delay of performance of their respective obligations under these T&C if caused by any events which are outside the reasonable control of or are not imputable to the obligated Party (Force Majeure Events") including, without limitation, acts of God, war, riot, civil commotion, strikes, lock-outs, labor disputes, malicious damage, compliance with changes of laws or governmental order, rule, regulation or direction, accident, fire, flood, storm, a world-wide component shortage. Lack or delay of availability of cartography and of GSM, GPRS and/or GNSS and/or in general telecommunication services shall also be considered Force Majeure Events.
14.2. If any Party is unable to perform any of its obligations under these T&C due to a Force Majeure Event then:
14.2.1. that Party's obligations under these T&C shall be suspended for so long as the Force Majeure Event continues and to the extent that that party is prevented, hindered or delayed;
14.2.2. a Party may only exercise its rights under this Clause if, on the commencement of the Force Majeure Event, that Party, as promptly as is possible and reasonable in the circumstances, notifies the other Party in writing of the occurrence of the Force Majeure Event and the effects of such event on its ability to perform its obligations under these T&C;
14.2.3. each Party shall use its reasonable endeavors to mitigate the effects of any Force Majeure Event upon the performance of their respective obligations under these T&C; and
14.2.4. after the cessation of any Force Majeure Event the Party which has exercised its rights under this Clause shall, as promptly as is possible and reasonable in the circumstances, notify the other party in writing of the cessation of the Force Majeure Event and shall immediately resume performance of its obligations under these T&C.
14.3. Should the Force Majeure Event continue for more than 30 BD and the cessation of the Force Majeure Event is not reasonably foreseeable, either Party may by written notice terminate the Contract, without prejudice to any right of WM arisen before the occurrence of the Force Majeure Event.
15.1. Without prejudice to the rights of withdrawal or termination provided for in Clauses 3.21 above and 16 and 17 below, the Contract shall have a duration equal to the Platform Period. Upon expiration of said initial Platform Period, the Contract shall be automatically extended for a subsequent Platform Period (each date on which the Contract is automatically extended, a "Renewal Date" and the overall duration of the Contract, the "Duration").
15.2. If CM communicates within 90 days before the end of each Platform Period its intention not to extend the duration of the Contract according to Clause 15.1 above, the Contract shall be considered terminated and WM ceases to provide CM with the Platform Solutions on the last day of the relevant Platform Period (the "Expiration Date").
16.1. Each Party shall be entitled to withdraw from the Contract anytime by giving to the other Party a 6-month prior notice
17.1. Without prejudice to any of its other rights and remedies under the Contract and/or these T&C and/or the Governing Law, the Contract may be automatically terminated pursuant to Article 1456 ICC whenever CM is in breach of any of the obligations included in following clauses: 4 - Section 1 "Obligations of CM"; 7 "INTELLECTUAL PROPERTY"; 8 "THIRD PARTY INTELLECTUAL PROPERTY"; 9 "DATA PROTECTION"; 10 "CM R&W"; 11 "CM LIABILITY".
17.2. Without prejudice to any of its other rights and remedies under the Contract and/or these T&C and/or the Governing Law, WM shall be entitled to terminate the Contract pursuant to article 1454 ICC, upon the occurrence of a material breach by CM which is not remedied within 30 BD from the receipt by CM of the warning from WM. The Parties expressly acknowledge that a breach of any of the following obligations is deemed a "material" one for the purposes of triggering this Clause 17.
18. CONSEQUENCES OF WITHDRAWAL/TERMINATION
18.1. In any event of withdrawal and/or termination of the Contract WM, at its own discretion, shall be entitled to trigger a Community Block and the obligations of the Parties under Clauses 7, 8, 9, 20, 21.6, 21.7, 21.9 and 22 shall continue to be in full force and effect for a period of 6 months following, as the case may be, the Expiration Date or the date of anticipated termination of the Contract.
18.2. The termination of the Contract due to whatever reasons shall not affect any accrued rights or liabilities of either Party under these T&C.
19.1. CM shall not assign or otherwise transfer any of its rights and/or obligations under the Contract to a third party unless prior written approval of WM is timely and duly obtained.
19.2. WM shall have the right to assign the Contract to any Affiliates.
20. ANNOUNCEMENTS AND DISCLOSURES
The disclosure by a Party to third parties of any information regarding the Contract and these T&C will be allowed only insofar as it is necessary to satisfy organisational or financial needs of the Party, to fulfil a legal obligation, or if so ordered by any public authorities competent to require such disclosure under the Applicable Law.
21.1. Entire agreement - These T&C, including the relevant Schedules, constitute the entire regulation in place between the Parties in respect of the execution of the Contract and the supply of the Platform Solutions.
21.2. Modification - No amendments or integration to the T&C, except in the case of Clause 6 shall be valid and binding on the Parties, unless it is in writing, refers expressly to the T&C and is executed by the duly authorized representative of the Parties.
21.3. Severability - In the case that one or more of the Clauses in the T&C is considered invalid or non-enforceable, this shall not anyhow affect the remaining Clauses which shall continue to have full validity and effect.
21.4. Tolerance and Waiver - The failure of any of the Parties to enforce any of the provisions of the T&C at any time shall in no way be construed to be a waiver to such provisions, or of any other provision of the T&C. No waiver of any breach of the T&C shall be held to be a waiver of any other or subsequent breach.
21.5. Fees and expenses - Except as otherwise specifically provided in these T&C, or subsequently agreed in writing by the Parties, each Party shall bear its own costs and expenses associated with the execution of the Contract, including, but not limited to, all fees and expenses of such Party's respective counsel, accountants, advisors and other agents and experts, including financial advisors and bankers.
21.6. Code of Ethics - CM undertakes to comply with the clauses contained in the Code of Ethics adopted by Octo Telematics Spa controlling WM and published on the Website also according to Decree n. 231/2001 stating to be aware that the violations of the provisions contained in the Code of Ethics entitle WM to terminate the Contract.
21.7. Non solicitation - For the entire Duration and for 12 month-period afterwards ("Non-Solicitation Period"), CM shall not entice away or solicit to entice away, whether directly or through third parties, any person employed by WM or the Octo Group. In particular, CM shall not, whether directly or indirectly, also through companies controlled by or affiliated to CM:
21.8. Compliance with the law - Nothing in these T&C shall operate so as to exclude or limit the liability in case of willful misconduct, gross negligence, death, personal injury or in any other case in which liability cannot be excluded or limited by the Governing Law.
21.9. Communication - All notices, requests and other communications under these T&C and the Contract shall be in writing, and addressed as follows:
22. GOVERNING LAW - JURISDICTION
22.1. Governing law – These T&C and the Contract shall be governed by and be interpreted in accordance with the Italian Law.
22.2. Jurisdiction - Any dispute that may arise out the Contract and its execution, these T&C, the Platform, the Community, the Platform Solutions or Services shall be submitted to the Court of Rome.