PROVIDER and Customer are hereinafter referred to as the Parties
The PROVIDER is the holder of ministerial authorisation pursuant to art. 25 of the Italian Legislative Decree of the 1st of August of 2003, n. 259 "Electronic Communications Code", for the nationwide provision of a publicly accessible telephony service.
a) The PROVIDER is a company which operates in the field of telecommunications, information technology, e-commerce and owns specific hardware and software platforms for the management of various telematic services to be offered to final users as well as to manage the purchase of prepaid telephone traffic through which final users can benefit from services and contents offered by the Customer.
b) Using specific platforms and telematic services offered by the PROVIDER, the Customer is able to offer content and services of various types to the public based on its own characteristic activity.
c) It is in the Customer’s interest to use the telematic services and, therefore, the IT platform that the Provider can make available to the Customer to convey its contents and/or services to the public; having considered the mutual interests and the advantages of a reciprocal collaboration, the Parties have therefore decided to formalize this Agreement for Telematic Services.
d) The Parties agree to adapt the supply conditions of the present Agreement to the further dispositions issued by the Authority for Communications Guarantees and/or the Ministry of Communications.
IN THE LIGHT OF THE FOREGOING, THE FOLLOWING CONDITIONS ARE APPROPRIATE AND STIPULATED:
1. (Premises and Annexes) The premises and annexes shall form an integral and substantial part of this Agreement and shall be deemed to be fully transcribed herein.
2.(Subject of the Agreement) This Agreement covers the supply by the PROVIDER to the Customer of an IT platform that will allow the Customer to sell content and its telematic services to the public, to its users who will be equipped with a telematic account - identified by a personal telephone number - which will be recharged through the charging channels made available by the technological platform of the PROVIDER, to access the content and/or services of the Customer.
3.(Legal relationships) The Customer guarantees that the contents of the telematic services provided to the public through the IT platform given by the Provider are in compliance with regulations – also in the matter of copyright and ownership of the image. The Customer expressly undertakes not to publish any content of which it does not own rights, without formal and prior consent of the owner of those rights. In case of violation of the laws and regulations in force, the Customer commits to immediately interrupt the violation and to compensate the PROVIDER for any damage, both economic and of image, that may have caused.
4. (Management of remuneration) The Customer acknowledges that the payment of the telematic services offered and purchased by users will be made through a computer platform made available by the Provider using a different account for each user. For the provision of the services covered by this Contract, the Customer shall pay the Provider a compensation as specified in the ANNEX A of this Agreement.
In the event that the Customer needs customizations of the IT platform for the provision of telematic services, the Customer must pay to the PROVIDER a one-off set-up fee and a monthly maintenance fee that will be reported in an ANNEX to this Agreement.
The PROVIDER has the right to modify the current economic conditions by giving prior notice to the Customer. Any changes to the economic conditions shall be mentioned in special Business letters or Attachments that will be an integral and substantial part of this Agreement (although the Professional has the right to terminate the relationship at any time).
The remittance to the Customer of the fees paid by final users for the purchase of telematic services offered by the Customer shall be made by the Provider as follows:
Every 15 days from the reference month, the PROVIDER informs the Customer of the amount to be invoiced for all telematic services purchased by final users in the period under consideration.
Such notification shall constitute authorisation to issue an invoice.
As soon as possible, the Customer shall invoice the PROVIDER all the amounts only and exclusively authorized as above. In any case the transaction can happen later than the end of the month.
The PROVIDER will pay immediately for the services used, having correctly received the invoice as an authorization to invoice, except as specified above. The payment of invoices issued and/or received after the deadlines will be made on the first due date.
The relevant amount will be credited to the bank account indicated by the Customer.
In the case of any disputes promoted by final users and/or in case of alleged fraud – that should be highlighted on the basis of complaints to the Judicial Authority and/or other competent Authorities– the PROVIDER has the right to suspend payments for the telematic services provided and/or request their reimbursement, including a subsequent compensation. This may only happen if the Provider sends a prior written communication to the Customer.
The Parties also agree that the PROVIDER may temporarily suspend the payment to the Customer of the fees collected by final users, or request the issuance of credit notes, if the fees refer to telematic services provided in breach of the regulations in force and/or in case of alleged fraud. This clause is valid and binding for all situations that, in the opinion of the PROVIDER may present characteristics of possible fraud, even if not yet reported to the competent authorities.
Both the suspension and the reinstatement to the Customer of suspended amounts may be carried out in payment cycles also subsequent to those relating to the period in which the service was provided. The payment of the amounts in dispute will remain blocked or it will be required to be reimbursed, until the dispute is settled.
It is agreed that the Customer expressly authorizes the PROVIDER to withhold, as a compensation payment, any sums owed by the same in relation to missed or delayed payments of fees or initial configuration fees and/or other services offered by the Provider.
5. (Assignment of credit) The Customer undertakes not to assign the claims to the PROVIDER without the prior written permission of the Provider and, in that case, to ensure that any transfer takes place only after the issue of the relevant invoice previously authorised by the PROVIDER. The Customer undertakes to identify a single assignee in relation to the entire turnover.
6. (Delinquency of the Customer) In the event of total or partial non-payment of the amounts due by the Customer for fees and/or contributions of various nature, hereinafter possibly specified in the annexes to this contract, the CONTRACTOR may directly retain, up to the extent of his own credit, the amounts due in order to proceed with the relevant offsets.
7. (Obligations of the Customer). The Customer also undertakes to use the IT platform correctly so as not to derive an undue advantage from it.
8. (Confidentiality and Protection of Personal Data) By "Confidential Information" we mean all information relating to formulas, processes, production, technical studies and other data, research and development, technology of any nature, financial data, business plans and marketing, customer identification data and any other information relating to or concerning the implementation of this Agreement that the Parties have come into possession of in the establishment of this Agreement. Each Party commits to the other to:
- use the Confidential Information exclusively for the purpose of implementing the Agreement;
- Disclose the Confidential Information exclusively to its directors, managers, employees, collaborators and any subcontractors that may need them for the purpose of providing the services covered by this Agreement, ensuring that such entities handle such Confidential Information in compliance with their obligations under the Agreement. If one of the Parties is required, in the course of judicial or administrative proceedings, to disclose all or part of the Confidential Information, it shall promptly and through previous writtten communicate inform the other Party of such request for disclosure, as far as legally possible, in order to enable it to take any action to protect it. The confidentiality obligations on Confidential Information governed by this Article shall not apply in relation to information that:
- is or will become public in cases other than a breach of this Article;
- has come into the possession of the receiving Party without any restriction as to its distribution prior to the date of reception by the transmitting Party;
- is received from a third party who has lawfully acquired it and who is not subject to any obligation restricting its circulation; or
- is independently developed regardless of the access to the Confidential Information.
Each Party undertakes to process the Confidential Information and personal data received at the time of the implementation of this Agreement exclusively for purposes strictly related to the fulfilment of the obligations assumed under the Agreement. This will happen in compliance with the Current legislation on the processing of personal data. The parties also undertake to update and integrate its own procedures for the protection of all personal data related to regulatory developments and to interact with the other party about any innovations that have been made.
Each Party recommends, also in compliance with the Code for the Protection of Personal Data (Legislative Decree No. 196 of 30 June 2003, as amended) and the Data Protection Regulation (GDPR EU Regulation 2016/679), to take all appropriate measures to ensure the protection of the Confidential Information made available by the other Party during the course of the execution of the Agreement and, in particular, to:
- to ensure that each place where services are organised and carried out, as well as the places where data are stored (including all kinds of records, even magnetic ones) are safe and only accessible to authorised personnel;
- to use the IDs, passwords and all the "entitlements" provided solely for implementing the Agreement and within the limits of its validity, storing them with the utmost care;
- to connect to the computer system of the other Party using instruments and equipment compatible with the latter that are updated on a case-by-case basis to the highest level of security available;
- to ensure that the own IT system and, more generally, all means (equipment, supports, tools and/or anything else used for the provision of services) are made accessible only to authorised personnel and are protected from external attacks and/or by viruses or other "malicious code" by means of constantly and promptly updated instruments;
- to maintain a security policy and system to protect confidentiality, availability and "physical and logical" integrity of all materials, the Confidential Information may have been made available by the other Party. This is made through the use and implementation of appropriate "environments" and/or the use of data anonymisation techniques whilst protecting the data processed from the risks of loss, subtraction or alteration;
- to feed and keep up to date a system of "incident management" promptly informing the other party of any security problems, even if only feared
- to delete and destroy information that is no longer necessary for the implementation of the Agreement, considering the type of medium or format used.
The provisions on confidentiality and protection of Confidential Information and Personal Data provided for in this Article shall be valid until 24 months after the termination, by any means, of this Agreement.
9. (Documentation) When signing this Agreement, the Customer shall submit the following:
a) A copy of the customer’s ID document or of the legal representative or delegate.
10. (Duration of the agreement) This Agreement is to be valid for a period of 12 months and shall be tacitly renewed for a period of 12 months if one of the Parties does not cancel at least three months in advance of the agreed deadline. The cancellation must be advised by certified e-mail (PEC) or by registered letter with acknowledgement of receipt to be received by the other Party within the time limit specified above. In case of just cause, the PROVIDER may exercise immediately the right of withdrawal. The violation of laws and regulations is always considered as a just cause, even if not exhaustively. In any case, the PROVIDER is always free to claim compensation for the damage resulting from the breach of the just cause.
11. (Transfer of the Agreement) Contractual takeover is not allowed unless it is explicitly negotiated with the PROVIDER.
12. (Reporting obligations) The Customer undertakes to promptly communicate to the PROVIDER any changes of name, registered and operational office, as well as other data referred to in art. 9.
13. (Competent court) Any dispute concerning the validity, effect, interpretation or execution of this agreement will be devolved to the exclusive jurisdiction of the Court of Terni with the exclusion of any other competing Court.
(Express termination clauses) The Parties expressly agree that the clauses contained in the Articles:
• 3 (Legal Relationships),
• 7 (Obligations of the Customer),
-11 (Transfer of the Agreement),
-12 (Reporting Obligations),
In the event of any changes to the existing contract, changes in payment methods or any other charges, the customer will not only be notified in advance by the company, but will also be able to withdraw from the contract immediately in order to reject the supplier's proposal.
Of this Agreement are essential so that the violation of even one of them entitles the counterparty to temporarily suspend the service or to request the legal termination of the Agreement, by simple written notice. This may happen if the breach is not resolved within 15 days from the receiving of the relevant notice that has to be communicated by registered letter with acknowledgement of receipt. If the aforementioned contractual clauses are replaced by legal acts, pursuant to art. 3, the breach of the replacement clauses will also result in the temporary suspension of the service or termination of this Agreement, in accordance with the procedure described above.