0. Foreword
These General Terms and Conditions ("Terms and Conditions" or "Conditions") shall apply to all consultancy services that the Consultant shall provide for, or on behalf of, the Principal.
1. Definitions
1.1
In these Conditions the following terms shall have the meanings set forth below and the derived terms shall have corresponding meanings:
"Agreement" means the Letter entered into between the Principal and the Consultant and all documents referred to in or annexed thereto, including, without limitation, these Conditions.
"Consultant" shall mean the Party that shall perform the Services.
"Confidential Information" means all information in any form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to a Party's business, customers, products, business and finances and trade secrets including, without limitation, technical data and know-how relating to the business of a Party or any of its suppliers, customers, agents, distributors, shareholders, executives or business contacts, including in particular (but not limited to) information that the Consultant creates, develops, receives or obtains in connection with the Agreement, whether or not such information (if in other than oral form) are marked as confidential.
"Force Majeure Event" means any circumstance beyond the reasonable control of a Party, including, without limitation, act of God, floods, droughts, earthquakes or other natural disasters, epidemics or pandemics, terrorist attacks, civil war, riots or civil commotion, war, threats or preparations for war, armed conflict, imposition of sanctions, embargo or breakdown of diplomatic relations, nuclear, chemical or biological contamination or sonic boom; any law or action taken by a government or public authority, including, without limitation, the imposition of export or import restrictions, quotas or bans, or the failure to grant a necessary licence or consent; building collapse, fire, explosion or accident; any labour or trade dispute, strike, industrial action or lockout; non-performance by suppliers or subcontractors; and utility service interruption or failure.
"Intellectual Property Rights' and/or 'IPR' means all intellectual property rights, including patents, invention rights, copyright and related rights, goodwill, design rights, computer software rights, trademarks or service marks, trade names and domain names, database rights, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications to obtain renewals or extensions of such rights and to claim priority of such rights.
"IPR of the Consultant" shall mean all Intellectual Property Rights of the Consultant relating to tools, methodologies, services, documents and techniques of any nature, which have been created or acquired by the Consultant prior to or otherwise than in the performance of the Agreement and which are used by the Consultant in connection with or to perform the Services or are otherwise necessary for the exploitation of the Services, as well as all Intellectual Property Rights relating to all (new) documents, tools, methodologies, services and techniques of any nature generated by or for the Consultant in the performance of the Agreement.
"Letter" shall mean the engagement letter drafted by the Consultant, to which these Conditions refer, specifying, inter alia, the Services, Products, Fees and/or Expenses pertaining to the specific assignment.
"Principal" shall mean the Party to whom the Letter is addressed and/or to whom the Services are to be performed.
"Services" shall mean the services described in the Letter to be rendered by the Consultant to the Principal, or such additional services as may be agreed upon from time to time in writing between the Parties by means of an annex to the Letter.
"Standards of Practice" means, in respect of the Services and the provision thereof, the standards of practice that would normally be applied by professional advisers of that type of Services in similar circumstances and at the relevant time.
"Subcontractor" means any entity, other than the Consultant or its employees, engaged by the Consultant, by way of subcontract, to perform the Services, or any part thereof, on behalf of the Consultant.
1.2
Capitalised words used in these Conditions and not specifically defined in the Letter shall have the same meaning as in these Conditions.
2. Letter/Agreement & Terms
2.1
The Agreement between the Principal and the Consultant shall be effective and shall commence (a) upon receipt of the Principal's unreserved acceptance of the Letter or (b) upon receipt of the Principal's instruction to commence the Services or (c) upon pressing the 'Accept and sign' button on the relevant forms on the Consultant's website (d) upon payment of the relevant invoice issued by the Consultant.
2.2
These Conditions form an integral part of the Letter and of the resulting Agreement, if any.
3. Relationship Of The Parties
3.1
The Parties are independent legal entities and no employee of either Party shall be considered an employee of the other Party. The Principal and the Consultant expressly and specifically disclaim any intention to create a partnership, consortium or joint venture.
3.2
Except as otherwise provided in the Letter, neither Party shall act as agent for the other Party nor have the power to expend the name and/or bind the other Party.
4. Execution Of The Agreement
4.1
The Consultant is authorised to use professional, competent, skilled and experienced third-party personnel in the performance of the commissioned Services.
4.2
The Consultant shall use reasonable efforts to perform the Services on the dates set forth in the Letter; however, such dates shall not be considered mandatory.
In the event of suspension of the Services or a force majeure event, all dates shall be automatically extended by a period of time equal to the period of suspension or force majeure event.
4.3
The Consultant may, if requested, cooperate with third parties appointed by the Principal; it being understood that the Consultant shall have no obligations towards such third parties.
5. Sub-Contracting
5.1
The Consultant may subcontract part or all of the Services without the prior consent of the Principal.
5.2
The Principal undertakes, also in the case of subcontracting, to provide any communication concerning the performance of the Services exclusively to the Consultant.
6. Co-Operation Of The Principal
6.1
The Principal agrees to provide the Consultant, at its own expense, with all information necessary for the timely and proper performance of the Services and the Principal represents and warrants that all information provided to the Consultant are true, complete and relevant to the Services commissioned. The Consultant shall therefore not be liable for the consequences of any information provided that does not meet the above requirements of truthfulness, completeness and relevance.
6.2
Upon reasonable and motivated request of the Consultant, the Principal undertakes to make available to the Consultant materials, equipment and/or facilities of the Principal that the Consultant deems necessary for the performance of the Services.
6.3
The Principal undertakes to keep the Consultant informed of any events, developments or changes in circumstances that might affect the provision of the commissioned Services.
6.4
The Consultant, its employees and its subcontractors shall not be liable for any loss or damage suffered by the Principal or any third party by reason of applications, actions, omissions and/or productions undertaken on the basis of the Consultant's Services, except in the event of gross negligence or wilful misconduct of the Consultant.
6.5
The Principal undertakes not to distribute or publish the contents of any writings, even in part, from the Consultant, or its employees or subcontractors, without the prior written consent of the Consultant.
6.6
The Principal undertakes to comply with all applicable data protection laws and regulations in the processing of personal data. With regard to personal data from third parties or provided by third parties on the instructions of the Principal, the Principal declares that it is authorised by the person concerned to disclose such personal data.
7. Payment & Invoicing
7.1
The Principal shall pay to the Consultant, as consideration for the Services, the fees, expenses and VAT (the latter according to the legal terms in force at the time of invoicing) in the terms agreed upon in the Letter of Assignment.
7.2
The Principal will pay each invoice by the end of the month in which it was issued.
7.3
If an invoice is disputed, the Principal shall notify the Consultant in writing of the disputed amount and the reasons for the dispute within ten (10) days from the date of the disputed invoice; otherwise, the Principal shall be deemed to have accepted the invoice as due and payable.
7.4
In the event the Principal fails to pay an invoice on the due date, after the following 15 days, the Consultant shall be entitled to immediately suspend the execution of the Services and to notify the decision to terminate the Agreement.
The non-payment of the undisputed invoice constituting an express termination clause pursuant to Article 1456 of the civil code.
8. Confidentiality
8.1
If one Party (the Receiving Party) obtains Confidential Information of the other Party (the Disclosing Party) in connection with the Agreement, the Receiving Party shall keep such Information confidential, applying the same standard of care as it uses for its own Confidential Information, and each Party agrees not to disclose or divulge such Information to any third party without the prior written consent of the other Party, except as provided in Section 8.3
8.2
If the Receiving Party becomes aware of an unauthorised disclosure of confidential information, it shall immediately inform the Disclosing Party and the Parties shall endeavour to remedy the situation and prevent further unauthorised use.
8.3
The Consultant shall be authorised to disclose the Principal's confidential information to its legal advisors and auditors, its regulatory or supervisory authorities, and any of its employees or subcontractors, insofar as this is strictly necessary for the performance of the Services under the Letter.
8.4
The confidentiality obligations under this Article shall not apply to information that (a) was known to or in the possession of the Receiving Party before such information was disclosed by the Disclosing Party; (b) is in the public domain or has subsequently become public knowledge through no fault of the Receiving Party; (c) is Information disclosed by a third party and not by the Disclosing Party; (d) there has been specific authorization by the Disclosing Party; (e) disclosure has become necessary due to legal or regulatory obligation.
8.5
Within thirty (30) days after the date of termination or expiration of the Agreement, the Receiving Party shall, at the request of the Disclosing Party, cease using the Confidential Information and promptly return or destroy all Confidential Information, together with any copies or extracts thereof.
8.6
The Principal agrees that the Consultant may retain the Principal's Confidential Information in its files for the period required by its quality and assurance processes or by applicable law.
9. Intellectual Property Rights
9.1
For the purposes of this Article, the Consultant's IPR shall mean all Intellectual Property Rights of the Consultant relating to tools, methodologies, services, documents and techniques of any nature whatsoever, which have been created or acquired by the Consultant prior to or otherwise than in the performance of the Agreement and which are used by the Consultant in connection with or to perform the Services or are otherwise necessary for the exploitation of the Services, as well as all Intellectual Property Rights relating to all documents, tools, methodologies, services and techniques of any nature generated by or for the Consultant in the performance of the Agreement.
The Principal agrees to take all steps that may be necessary to execute and/or recognise the Consultant's Intellectual Property Rights relating to any (new) documents, tools, methodologies, services and techniques of whatever nature generated by or for the Consultant in the performance of the Agreement.
9.2
The Principal acknowledges that all of the Consultant's IPR and any development, modification or improvement of the Consultant's IPR are and will at all times remain vested in the Consultant.
9.3
The Consultant grants to the Principal, upon full and final payment by the Principal of all amounts due to the Consultant, including royalties as defined in the Letter, a worldwide, non-exclusive and non-transferable right to use the Consultant's IPR for the Services, Products or output for the sole purpose of the Agreement and subject to compliance with these Conditions. The Principal shall not, without the prior written consent of the Consultant, alter or add anything to the Consultant's IPR. The Principal will not alter, deface or remove any reference to the Consultant as the rightful owner of the Consultant's IPR.
9.4
The Principal shall, within forty-eight (48) hours from the receipt of any claim for violations attributable to the Services as set forth in the Letter, inform the Consultant in writing, by registered letter with acknowledgement of receipt or by Certified Electronic Mail (PEC).
9.5
The Parties agree that there shall be no warranties and/or indemnity obligations on the Consultant for breaches (a) resulting from the Consultant's compliance with specific written instructions of the Principal; (b) directly or indirectly caused by the Consultant's reliance on any information provided to the Consultant by the Principal (or another person acting at the direction of the Principal); (c) resulting from additions or changes to the Services or any part thereof provided under the Agreement if the Principal or another person acting at the direction of the Principal has made such changes; (d) not notified to the Consultant by the Principal in accordance with Article 9. 7 hereof.
9.6
Neither Party shall use or refer to trade names or trademarks of the other Party or its Affiliates unless authorised in writing by the other Party.
10. Defects
10.1
Upon completion of the Services, the Customer shall assess the Services and shall report any defects to the Consultant within thirty (30) days after completion of the Services.
10.2
In the event of defects attributable to the Consultant, its employees or its Subcontractors, the liability of the Consultant shall be limited to one or more of the following: (a) where the defect is resolvable, arrange for the necessary modifications to correct any defects or complete the Services; (b) where the defect is not resolvable or has not been resolved within thirty (30) days from the date on which the Consultant received notice of the defect, refund the Fee paid by the Principal for the defective Services.
11. Limitation of liability
11.1
The Parties agree to limit the Consultant's liability (for defaults in respect of the agreed Services, for all claims, demands, suits, proceedings, remedies, fines, penalties, fees, losses, judgments, liens, liabilities, indemnities, costs, awards, damages or expenses of any kind or character whatsoever arising out of, relating to, or in connection with the Agreement), to the amount of fees paid by the Principal in respect of the Services giving rise to such claim.
Furthermore, in no event shall the Consultant or any of its directors, officers, employees, consultants or Subcontractors be liable under the Agreement to the Principal or any third party for any consequential, indirect, incidental, special, exemplary, punitive or major damages, or for loss of profits, revenue or business opportunity, diminution in value or damage to reputation and/or goodwill, arising out of, relating to, or in connection with the Agreement.
11.2
The Principal shall indemnify, hold harmless and, upon the written request of the Consultant, defend the Consultant and any of its directors, officers, employees, consultants or Subcontractors from and against any and all claims by third parties (including but not limited to, the directors, officers, employees, consultants, subcontractors, subsidiaries or affiliates of the Principal) arising out of, relating to or in connection with the Agreement, to the extent that the aggregate of such claims exceeds the total cumulative liability of the Consultant set forth in Article 11.1.
11.3
The limitations of liability set forth in this Article shall not apply in the event of wilful misconduct, gross negligence or wilful recklessness on the part of the Consultant.
11.4
The limitation and prescription periods set forth in Article 2226 of the Civil Code apply.
11.5
The remuneration paid by the Principal and the other provisions of the Agreement reflect the allocation of risks between the parties. The provisions of this Article 11 constitute an essential element of the basis of the Agreement.
11.6
If a Party is prevented, hindered or delayed in the performance of any of its obligations under the Agreement by an event of force majeure (the Affected Party), that Party shall: (a) notify the other Party in writing of the event and its probable or potential duration; (b) make all reasonable efforts to mitigate the effect of the force majeure event on the performance of its obligations.
If the Force Majeure Event prevents, hinders or delays the performance of the obligations of the affected Party for a continuous period of more than sixty (60) days, the Party not affected by the Force Majeure Event may terminate the Agreement by giving thirty (30) days prior written notice to the affected Party.
12. Duration & Termination
12.1
For the purposes of this Article, the Parties agree that the following shall be valid grounds for termination of their Agreement: (a) the breach of any material term or condition of the Agreement, the effect of which is or may be material; (b) theft, willful misconduct, gross negligence, fraud or fraudulent misrepresentation by a Party in the performance of its obligations under the Agreement (c) the interruption or suspension, or threatened interruption or suspension of payment of all or a substantial part of its debts as they fall due; (d) in the event of an application for administration, liquidation or bankruptcy or any other insolvency proceedings.
12.2
Upon the occurrence of a termination event or subsequently, the Defaulting Party shall be entitled to give notice of its intention to terminate the Agreement immediately by written notice by registered letter with return receipt or by Certified Electronic Mail (PEC).
12.3
In the event of termination of the Agreement for any cause whatsoever, the Principal shall pay to the Consultant, within five (5) business days of the date of termination, all Fees and all Expenses and VAT due under the Agreement for Services rendered up to the date of termination. Termination of the Agreement shall be without prejudice to the rights, remedies, obligations or liabilities of the Parties accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement that existed on or before the date of termination.
13. Dispute Resolution Venue and Applicable Law
13.1
The Parties undertake to amicably resolve any conflicts arising from or relating to the Agreement. In the event that, in relation to such conflicts, an amicable settlement is not reached, the Parties agree that all disputes that may arise between the Consultant and the Principal shall be settled by the Court of Bergamo.
13.2
These Conditions are drawn up in Italian and translated into other languages for the exclusive benefit of the Principal, in the event that the Principal is unable to correctly understand the contents expressed in Italian. In the event of any conflict or inconsistency between these Conditions drafted in Italian and those translated into other languages, the Parties agree that the Conditions drafted in Italian shall prevail over all the others drafted in any other language. The Contract between the Consultant and the Principal shall be exclusively governed by and construed in accordance with the laws of Italy.