ContactLab – General Terms and Conditions Foreword Contactone services are available only to authenticated and authorized users as configured in Contactlab system. Contactone services are activated only after signing contract with Contactlab. In the following, the general Term of Use and Conditions are provided. 1. Applicability of the terms and conditions – Definitions 1.1. These general terms and conditions (the Terms and Conditions) together with the terms and conditions set out in any order forms entered into by the Client and/or the relevant offers (together, for the purpose hereof, the OF) set forth the discipline for the provision by ContactLab to its clients (the Clients) of the products and services which are at any time offered by ContactLab (the Services).These Terms and Conditions are in force and effect as of 09/09/2011 and apply to contractual relationship entered into after said date 1.2. PROVIDER: means ContactLab S.r.l., having its registered seat in Milan, Via Natale Battaglia n. 12, P. I.V.A. No. 09480090159, share capital of Euro 1.228.572,00 entirely paid-in, enrolled with the Companies’ Register of Milan with No. 09480090159 (ContactLab). 1.3. ADDRESS FOR COMMUNICATIONS: ContactLab may be reached at the address set out in paragraph 1.2. above or by fax at No. +390293650443 and/or e-mail at commerciale@contactlab.com. 1.4. For the purposes of these Terms and Conditions, in addition to the terms defined elsewhere herein, the following words and expressions shall have the meaning set out below: - Agency Services, means the consultancy and management services that may be provided by ContactLab in relation to the marketing campaigns of the Client as described in the OFs; - ContactLab Platform, means the system of software and hardware designed, created, developed and managed by ContactLab for the purposes of managing pushing services of customized information through e-mail, SMS and fax; - Extraordinary Maintenance, means the non-scheduled maintenance works on the Systems of ContactLab caused by events beyond the reasonable control of ContactLab; - Scheduled Maintenance, means the scheduled maintenance works on the Systems of ContactLab; - Server Farm Services, means the hosting, housing, colocation and related additional services that may be provided by ContactLab as described in the OFs; - Systems of ContactLab, means, in general, the hardware, software, lines and telecommunication systems (including, for the avoidance of doubt, the ContactLab Platform) organised and managed by ContactLab for the provision of the Services and, specifically as the context may require, any of said items; - Users, means the entities, whether natural or legal, which are the addressee of the messages and, in general, communications of the Client. 2. Brief description of ContactLab Services 2.1. ContactLab is a company operating in the digital direct marketing field and, more generally, which provides digital communication consultancy services to enterprises. ContactLab has, inter alia, designed, created and implemented a proprietary technological platform named ContactLab for mailing services through e-mail, sms and fax and managing digital communication campaigns (the ContactLab Platform). 2.2. The services and products of ContactLab comprise basically the provision of consultancy activities, information technology services and, as far as the ContactLab Platform is concerned, software on an ASP (application service providing) basis. ContactLab offer includes, without limitation: 2.2.1. digital marketing consultancy services (e.g. newsletters and DEM campaigns); 2.2.2. consultancy services for users acquisition campaigns, on line games and competitions to increase the registration to database, incentive and retention programs; 2.2.3. the ContactLab Platform; 2.2.4. the Service Farm Services. 3. Fees – Invoicing – Payments 3.1. Fees due from the Client to ContactLab and related invoicing and payment terms are those set out in the OFs. 3.2. Any fee shall be subject to V.A.T. All taxes arising out the use of the Services by the Client shall be borne exclusively by the Client. 3.3. In case fees include the sale of messages packages (e.g., SMS and/or e-mail) to be used in a given reference period, messages (if any) not used by the end of the applicable reference period shall not be available after that period and shall not be reimbursed for whatsoever reason. 4. User ID and Password 4.1. If applicable in connection with specific Services, the Client shall be assigned dedicated user ID(s) and password(s) to be used for remote on line access to the Systems of ContactLab. The Client undertakes true data and information on the basis of the requirements set out by ContactLab (e.g., during an electronic registration procedure). The Client shall be allowed to verify the data and information provided by it and correct possible errors. It is the responsibility of the Client to promptly update its personal data in the event of changes occurred during the contractual relationship hereunder; the update of the data shall be allowed at any time through notices dispatched to ContactLab at the addresses mentioned under paragraph 1.3. above. 4.2. The Client undertakes to hold its user ID(s) and password(s) strictly confidential with due care and diligence. The Client acknowledges and agrees to be the sole and exclusive responsible of its User ID(s) and Password(s) and agrees that any activities carried out through said User ID(s) and Password(s) shall be attributed to and be binding upon it. Any person within the organization of the Client who is authorized to access to and use a Service for which is requested the use of user ID(s) and password(s) shall have to be provided with his own personal account; sharing of the personal accounts is strictly prohibited. If the Clients believes that the secrecy of its user ID(s) and/or password(s) has been violated by any third parties, it shall promptly notify ContactLab thereof and ContactLab shall provide the Client with new user ID(s) and password(s) and cancel the previous ones. 4.3. The Client acknowledges and agrees that ContactLab and/or its contractors log files can be presented before any competent Authority to the extent of meeting the burden of proof under these Terms and Conditions. In particular, the content of said log files may constitute valid evidence in respect of the existence of the contractual relationship hereunder and/or the acts subject to possible dispute. 5. Provision of the Agency Services [applicable only to Agency Services] 5.1. The Agency Services shall be provided by ContactLab with the required diligence and in accordance with the contractual arrangements agreed from time to time with the Client. 5.2. The Client undertakes to cooperate with ContactLab to the extent necessary and to carry out the activity and to provide the information in the manner and times which are required in relation to the specific agreed Service. 6. ContactLab Platform [applicable only to the ContactLab Platform Service] 6.1. The ContactLab Platform is available for access and use by the Clients on an ASP (application service providing) basis, through remote on-line access. Accordingly, ContactLab hereby grants to the Client a onerous, non-exclusive and non-transferable licence for the access to and use of the ContactLab Platform; the content of the licence is therefore limited to what strictly necessary for said purpose. 6.2. Save as otherwise agreed in writing, it is expressly excluded any right to resale or otherwise transfer for whatsoever reason to any third parties the access to and use of the ContactLab Platform. 6.3. The license granted hereby include the provision by ContactLab to the Client of memory space on the hard disk of a dedicated co-shared server to be used for the hosting of, exclusively, images contained in the newsletter of the Client, all as set out in the OF. The Client shall not be allowed to host material which is different from images contained in its own newsletters. 6.4. ContactLab may suspend, partially or totally, the access to the ContactLab Platform for Scheduled Maintenance or Extraordinary Maintenance. ContactLab shall give at least a 2-business day prior notice of the Scheduled Maintenance works by posting general notifications on URL https://login.contactlab.it. ContactLab shall use reasonable endeavours to, without being obliged to do so, inform the Client in advance of any Extraordinary Maintenance works and to minimise the inconveniences deriving from said works. 6.5. ContactLab warrants a monthly actual time of access to and use of the ContactLab Platform equal to 99 percent. of the theoretical monthly availability time. It is agreed that the measure of the effective monthly availability time shall not include: (i) down-time periods due to Scheduled Maintenance and/or Extraordinary Maintenance; and (ii) down-time periods caused by force majeure events or otherwise beyond the reasonable control of ContactLab including, but not limited to, the lack of connection caused by faults of the telecommunication lines. 7. Server Farms Services [applicable only to Server Farm Services] Not applicable here 8. Use of the Services 8.1. The Client agrees not to use the Services for any unlawful or illicit purpose and to act in compliance with any applicable laws and regulations and the features of the Services as set out in the OF and/or in the relevant documentation. 8.2. Without limitation and to the extent applicable, the Client agrees to: 8.2.1. comply with the rules, including technical rules, for the use of the specific Services as at any time communicated by ContactLab; 8.2.2. not upload, post, send or in other way dispatch or diffuse through the Systems of ContactLab contents and/or information infringing patents, trademarks, trade secrets, copyrights or other proprietary rights of any third parties; 8.2.3. not upload, post, send or in other way make dispatch or diffuse through the Systems of ContactLab contents which are obscene, offensive or in any other manner contrary to any public policy; 8.2.4. not upload, post, send or in any other way dispatch or diffuse through the Systems of ContactLab advertising, promotional materials, junk mail, spam, chain letters, pyramids schemes or any other form of unsolicited or unauthorised solicitation and, in particular, not to carry out any activity which may cause prejudice to other clients sharing disk space with the Client and accordingly, without limitation, not to carry out any phishing or other activities which may lead the Systems of ContactLab to be included in any black list or other filtering systems; 8.2.5. not upload, post, send or in any other way dispatch or diffuse through the Systems of ContactLab any material containing viruses, code files or programs created for interrupting, destroying or limiting the functioning of software, hardware or any other telecommunications equipments. 8.3. All and any information, data and, more in general, contents uploaded by the Client on the Systems of ContactLab or otherwise made available to ContactLab are and shall remain the exclusive property of the Client who, accordingly, assumes any and all responsibilities in relation to said information, data and, more in general, contents. Said information, data and contents shall be kept by ContactLab in compliance with applicable laws and regulations and then deleted. Details in respect of the campaigns made by the Client through the ContactLab Platform (e.g. opened pages, link tracking, campaign analysis etc.) shall be kept for a period not exceeding 12 months and thereafter aggregated and made anonymous and, therefore, not available if not in aggregated form. Details of the campaigns made by the Client through the ContactLab Platform (made anonymous, aggregated and, in any case, in a form not referable to any specific entity (whether the Client or any third parties)) may be used by ContactLab for statistic purposes (e.g. deliverability and/or trend analysis). 9. Privacy and anti-spam 9.1. The Client agrees to collect and process the personal data of its Users in compliance with any applicable data protection laws and regulations. 9.2. The Parties shall separately document the necessary appointments and other requirements under the applicable data protection laws and regulations. 9.3. In particular, but without limitation and prejudice for the other provisions of these Terms and Conditions, the Client agrees to send, or, in the case of the Agency Services, require the delivery of, messages or communications, including for the avoidance of doubt those having an advertising and/or promotional content, to is Users exclusively in compliance with the applicable data protection laws and regulations. In any case, the Client shall always include in its messages the address at which the Users can write to unsubscribe from the relevant mailing list (so called “unsubscribe me”) 9.4. The Client agrees to keep alive and in function the addresses and/or contact details communicated to the Users pursuant to paragraph 9.3. above for a period of at least 30 days since the last message have been sent to each User. 9.5. The Client shall promptly and, in any case, by the terms set out under any applicable laws and regulations, delete from its database(s) the addresses of the Users which request it to do so and to refrain immediately from further sending any communication to said Users. 9.6. In the event that the actions carried out by the Client through the ContactLab Platform lead to the inclusion of ContactLab’s IP addresses in any black-list or similar filtering systems, then the Client shall pay to ContactLab Interactive a penalty of EUR 500,00 for each single breach. Said penalty is the de minimis consideration payable to ContactLab in connection with the activities to be carried out by ContactLab in order to remedy the situation. The rights of ContactLab to claim for further damages or the provisions of clause 10.4. below shall not be limited or otherwise prejudiced by the provision of the penalty. 10. Applicable discipline – Indemnity Clause 10.1. The Client acknowledges and agrees that ContactLab does not control, nor it is able to do so, the contents which are directly uploaded, dispatched or managed by the Client through the Systems of ContactLab. ContactLab shall not therefore be responsible vis-à-vis any third parties or the Client in connection with the fact that that the Client has breached any provisions of these Terms and Conditions and/or the applicable laws and regulations. 10.2. The Client acknowledges and agrees that, without prejudice to any other rights of ContactLab under contract or the applicable laws, ContactLab shall have the right to: (i) prevent the upload or the dispatch of contents by the Client if so requested by any competent Authority; (ii) remove the contents of the Client or disconnect its accounts if so requested by any competent Authority; and (iii) make communications and/or give information to any competent Authority as required under the applicable laws and regulations. 10.3. ContactLab shall have the right to immediately and without notice suspend the provision of the Services if the Client braches its obligations under these Terms and Conditions (including, without limitation, any payment obligations) and/or, in any case, the provisions of the applicable laws and regulations. 10.4. The Client shall, on a first demand basis and without objections or counterclaims, indemnify and hold ContactLab harmless from any claim, demand, action, cost, expenses (including legal fees), or, in general, burden, which ContactLab may suffer as a result of a breach by the Client of the provisions of clauses 8. and 9. above. The above is without prejudice to any other remedies available for ContactLab under these Terms and Conditions and/or the applicable laws and regulations. 11. Term and termination – Right of termination (clausola risolutiva espresso ex art. 1456 of the Italian Civil Code) 11.1. These Terms and conditions shall apply to any contractual arrangement entered into by and between ContactLab and the Client in relation to the Services pursuant to any OF. 11.2. Without prejudice to the provisions of paragraph 11.1. above, ContactLab shall be entitled to terminate the Terms and Conditions and any OFs pursuant to article 1456 of the Italian Civil Code by serving to the Client a written notice via registered mail (raccomandata a.r.) in the event of breach by the Client of the following clauses of these Terms and Conditions: paragraphs 4.2., 6.2., 8.1.,8.2., 9.1. to 9.6. 12. Intellectual and/or industrial property rights 12.1. Save to the extent of the licenses expressly granted by ContactLab to the Client pursuant to these Terms and Conditions and/or the OFs, each Party is and shall continue to be the sole and exclusive owner of any intellectual and/or industrial property right owned at the date of execution of these Terms and Conditions and/or any OF or subsequently, for whatsoever reason, acquired, and used in connection with the activities concerned under these Terms and Conditions and/or any OF.. 12.2. Without prejudice to the provisions of paragraph 12.1. above, the Client grants to ContactLab a free and non-exclusive license for the use of its marks, logos and/or copyrights as well as for the use of its contents and/or information transmitted and/or processed by the Client and/or ContactLab through the Systems of ContactLab. 12.3. The Client expressly authorises ContactLab to use its name and distinctive signs on ContactLab’s internet site and/or marketing and promotional materials. 13. Limitation of ContactLab’s liability 13.1. ContactLab cannot, and does not, warrants that the Systems of ContactLab is free from faults and/or errors but shall use its best endeavours in order to avoid faults and/or errors. ContactLab does not assume any undertaking and does not give any warranty except for what is expressly set out under these Terms and Conditions or the OFs. 13.2. ContactLab shall not be responsible for the breach of any of its obligations under these Terms and Conditions or the OFs which is caused by a force majeure event or by facts and/or circumstances which are beyond its reasonable control. In particular, but without limitation, ContactLab shall not be responsible in the event of the impossibility for the Client to access to and/or use the ContactLab Platform which is caused by the malfunctioning of telecommunication and/or electric equipments and lines such as, for example, faults, overloads, interruptions, which are beyond ContactLab’s reasonable control. 13.3. Except for the cases of fraud or gross negligence, under no circumstance shall ContactLab be liable for damages deriving to the Client and/or its Users as a result of the breach by ContactLab of any of its obligations under these Terms and Conditions and/or any OFs. 14. General provisions 14.1. Save as otherwise specifically indicated hereunder or under any OF, any notice to be given under these Terms and Conditions or under an OF may be given through electronic mail. Any notice to be given via registered mail shall be copied in advance by fax or e-mail and confirmed by registered mail within the following 24 hours. 14.2. If any provision of these Terms and Conditions is found by a court of competent jurisdiction to be invalid, the remainder of the Terms and Conditions shall continue to be fully effective. The Parties shall negotiate in good faith to replace the voided or ineffective clause with one or more substitute clauses that follow as closely as possible the original intentions of the Parties. Same endeavour shall be applied by any competent Court. 15. Applicable law – Exclusive Jurisdiction 15.1. These Terms and Conditions and any OFs are governed by the laws of the Republic of Italy. 15.2. For any dispute relating to or arising out of these Terms and Conditions and/or any OFs or their execution the Court of Milan shall have exclusive jurisdiction.