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Terms and conditions

 

1. Subject matter of the agreement

1.1 These general contract terms and conditions (hereinafter: “General terms and Conditions”) discipline the supply by APP QUALITY S.r.l. (hereinafter: “APP QUALITY”) of services (hereinafter: “Service” or “Services”), as well as the others which may be activated by APP QUALITY at any time if disciplined by the General Terms and Conditions, selected at the time of the drawing up of each specific contract for each Service (hereinafter: “Contract”).

1.2 The General Terms and Conditions and each Contract address both individuals who act for purposes unrelated to their professional, artisan or business activities possibly carried out (hereinafter: “Consumers”) and individuals or corporate entities who act for purposes inherent to their professional, artisan or business activities, companies, professional firms, commercial enterprises and in any event those with a VAT number (hereinafter: “Customer” or “Customers”).

1.3 Each Contract entered into with a Consumer is disciplined by Italian Legislative Decree No. 206 dated 6 September 2005, (hereinafter: “the Consumers’ Code”) for all that it is not expressly envisaged by these General Terms and Conditions.

1.4 The Services offered to the Consumers are described in the disclosures, drawn up in accordance with Article 52 of the Consumer Code, which will be brought to the attention of said Consumers, before the Contract is finalized; they shall be valid and effective until they are amended and/or added to by APP QUALITY.

1.5 The disclosures, whose commercial purpose must be clear, shall be provided by APP QUALITY in accordance with the principles of good faith and loyalty with regard to commercial transactions and assessed in accordance with the requirements of protection of Consumer categories.

 

2. Service subscription and activation. Changes

2.1 Each Contract concerning the supply of the Service and/or Services selected by the Customer or Consumer shall be disciplined by the General Terms and Conditions and may be entered into:

I. on-line (hereinafter: “On-line subscription”), by means of filing out the on-line subscription form (hereinafter: “On-line form”) for the Service or Services selected and the subsequent forwarding of the same to APP QUALITY using the website relating to said Service or Services (www.app-quality.com, hereinafter: “Website”), or

II. off-line (hereinafter: “Off-line subscription”), by means of filling in the subscription form (hereinafter: “Form”) for the Service or Services selected and the subsequent delivery of the same to an APP QUALITY sales representative.

It is expressly understood that:

A. Each On-line form or Form completed and sent to APP QUALITY involves the drawing up of a Contract. Each Contract should be deemed as independent from any other contract that may have been entered into between the Customer or Consumer and APP QUALITY.

B. In the event of On-line subscription, after the Contract is entered into, the Customer or Consumer may receive an e-mail confirmation (hereinafter: “E-mail”) from APP QUALITY. In this case, in order to activate the Service, the Customer or Consumer shall give notice to APP QUALITY of the receipt of the E-mail thereby enabling the activation of the Service or Services referred to in the On-line form, following the instructions in the E-mail. The customer must activate the service within 5 days of receipt of the E-mail. If, however, no E-mail confirmation is provided for in the contract execution procedure, the activation of the Service will take place at the time of conclusion of the Contract.

2.2 It is expressly understood that if the Customer or Consumer does not comply with letter B. of paragraph 2.1, APP QUALITY shall be entitled, subject sending an e-mail reminder requesting compliance within 5 calendar days, to terminate the Contract pursuant to Article 1456 of the Italian Civil Code by sending a registered letter with return receipt without prior notice. In that case, no dispute may be raised by the Customer or Consumer who will not be entitled to any compensation and without prejudice to the right of APP QUALITY to retain the amount paid by the Customer or Consumer for the first month of Service provision.

2.3 If envisaged on the Website, the Customer or Consumer shall be entitled to a free trial according to the detailed terms and conditions available on the Website. In any case it is understood that the General Terms and Conditions shall also apply to the free trial to the extent compatible with them.

2.4 The Customer or Consumer has the right at any time to increase or decrease the amount of Service and/or Services according to the same tariffs applied to the amount used referred to in Article 5 and from time to time in force as published on the Website. In the event of flat fee services, the Customer or Consumer may only increase the quantity and the frequency of the Service but not decrease it (or rather may only upgrade the same but not downgrade it).

 

3. Duration.

3.1 Each Contract shall have the duration specified on the related Online form or Form. The Contract shall be applicable, in the event of On-line subscription, as from the moment of completion by the Customer or Consumer of the instructions contained in the E-mail as per Article 2.1.II if envisaged and, if not envisaged, as from the moment the Contract is entered into; in the event of Off-line subscription, as from the moment of receipt by the Customer of the e-mail which is used to inform the Customer of the commencement of the possibility to use said Service.

3.2 In the event that the Contract is entered into with a Consumer, the minimum duration of the Contract, the duration of the validity of the offer and the price of the Service or Services shall be indicated in a clear and visible manner in the disclosures.

3.3 The Customer’s right to withdraw in advance from the Contract is expressly excluded both entirely or in relation to each individual Service and thus also by way of departure to the matters envisaged by Article 1671 of the Italian Civil Code.

3.4 With regard to Consumers who accept the General Terms and Conditions indicated in the On-line form or Form, the possibility of availing of the right to withdraw as per Article 64 of the Consumer Code is excluded. In detail, as from the moment of entering into the contract, the Consumer declares he/she wishes to immediately execute the same, before the deadline of ten days envisaged by the afore-mentioned provision.

 

4. Effects of the termination of the Contractual effects

4.1 It is expressly understood that on termination of the effects of each Contract for any reason whatsoever, including therein fraudulent intent or negligence of one of the parties, APP QUALITY shall have the right to cancel all or any data and/or information and/or file and/or content of any kind or nature (cumulatively: “Contents”) present within the infrastructures used by the Customer or Consumer during the period the Contract is in force. Accordingly, if before the termination of the effects of the Contract, the Customer or Consumer has not taken steps to save whatever refers to the same, no claim can be made to APP QUALITY nor any damage made good if the Customer or Consumer losses one or more contents.

4.2 APP QUALITY shall have the right, but not the duty, to make a back-up (hereinafter: “Backup”) of the Contents before the termination of the effects of the Contract taking steps to keep the same for a maximum of seven days for paying Customers and/or Consumers and 1 (one) calendar day for whomever has availed of the trial period as per Article 2.3. If APP QUALITY has taken steps to make the Backup, the Customer or Consumer shall have the right, subject to payment of the feed envisaged by APP QUALITY, to receive a copy of the same.

4.3 The termination of the effects of each Contract for whatever reason, does not mean the Customer or Consumer are released from the obligation to pay the fees due for any reason to APP QUALITY even if the Contract is terminated due to the action and fault of the latter.

4.4 In the event of termination of the effects of all the Contracts outstanding between the parties, each one may immediately withdraw also from these General Terms and Conditions.

 

5. Fee. Guarantee deposit

5.1 By means of entering into the Contract, the Customer undertakes to pay the Fee for each Service more fully specified at the time of subscription on the Website or referred to in the E-mail, if envisaged.

5.2 In the Contracts entered into with Consumers, the latter are obliged to pay the fee for each Service, the price of which is more fully specified at the time each Contract is entered into, with additional indication, in the disclosures, of the possible application of taxes, dues, additional costs as well as the formalities and place of payment for the acquisition of the Service or Services covered by the Contract.

5.3 Payment having been made, APP QUALITY may freely, and with the sole obligation of informing the Customer or Consumer, make changes to the fees and prices for each Service in favour of the Customer.

5.4 At any time, APP QUALITY may make changes to the fees and prices of each Service to the detriment of the Customer it being understood that, in this event, it shall have to send notification of amendment to the Customer via registered letter with return receipt providing at least 30 (thirty) days of notice. In this event, the Customer or Consumer shall have the right to withdraw from the Contract by sending a registered letter with return receipt which shall have to reach APP QUALITY by the same deadline. In the event of failure to send APP QUALITY communication of withdrawal by the deadline and as per the formalities envisaged in the above section, the changes are understood as accepted by the Customer or Consumer. If the Customer or Consumer has paid the fees in advance or withdraws from the Contract further to unilateral amendment of the fees by APP QUALITY as per the previous section, APP QUALITY shall only and exclusively be obliged to return the amounts received from the Customer or Consumer in proportion to the period of time during which the Service was not availed of by said Customer or Consumer.

5.5 APP QUALITY shall issue its invoices according to the frequency indicated on the Online form or Form and in the disclosures for the Consumer, and the Customer or Consumer shall have to pay the amount indicated on the invoice as per the deadlines and formalities indicated. APP QUALITY reserves the right to issue the invoice at a later date than that specified on the On-line form or Form in the event that the amount charged to the Customer or Consumer should be less than the minimum specified on the On-line form or Form. APP QUALITY also reserves the right to issue the invoice at an advance date with respect to that specified on the On-line form or Form if the amount charged to the Customer or Consumer should be higher than the average consumption of the last 3 months or an anomalous level of use of one or more Services emerges.

5.6 In the event of late payment, the Customer or Consumer shall have to pay APP QUALITY, without the need for prior warning or formal notice of default, default interest at the legal rate as per Italian Legislative Decree No. 231/2002.

5.7 In any event, the Customer or Consumer has the faculty to request APP QUALITY – who may accept or reject the request at its unquestionable discretion – for the amendment of the chosen payment methods, by means of written communication to be sent via registered mail with return receipt at least 10 (ten) days before the expiry of the next payment.

5.8 APP QUALITY has no obligation to notify the Customer or Consumer of the expiry of the payments. In any event, the Customer or Consumer is obliged to pay the invoices relating to the fees already accrued in full. In the event of partial payment of the invoices, these shall be considered to be unpaid for all purposes.

5.9 In the event of a delay for more than 5 (five) days as from the payment deadline envisaged for the full payment of the amount due, APP QUALITY may suspend the disbursement of the Services forming the subject matter of each On-line form or Form. APP QUALITY shall also have the right to receive, by way of penalty, an amount equal to 2% of the fee for the On-line form or Form on a monthly basis for each day of delay, without prejudice to the payment of the fees already due and APP QUALITY’s right to the compensation of additional damages. In the event of Service reactivation, the Customer or Consumer will be charged with administrative costs for reactivation equal to 5% of the fee for the Services.

5.10 APP QUALITY may request the Customer or Consumer to provide a reasonable noninterest bearing deposit or an adjustment compared to the amount that may have been previously required if the Customer or Consumer used one or more Services in such a way to determine an abnormal level of use compared to the usual consumption by the same, or if the deposit is wholly or partly drawn upon by APP QUALITY under the Contract.

5.11 In case of delay of more than five (5) days for the full payment of the amount due under the terms indicated on the invoice as per Article 5.5, and after having attempted to contact the Customer or Consumer in order to ascertain his/her awareness of the failure to fulfil his/her obligation or the abnormal use of one or more Services, APP QUALITY may suspend the provision of the relevant Service or Services by informing the Customer or Consumer within 8 (eight) working hours as from the suspension via e-mail. Following fulfilment by the Customer or Consumer, APP QUALITY shall reactivate the Service or Services suspended. If the Customer or Consumer does not meet his/her obligation within 7 (seven) days of notification of the suspension, APP QUALITY shall terminate the Contract pursuant to Article 1456 of the Italian Civil Code by sending an e-mail and/or registered mail with return receipt. It is understood that in no case of suspension and/or termination can the Customer or Consumer raise any claim against APP QUALITY.

5.12 It is expressly understood that regardless of the provisions of the preceding paragraphs, APP QUALITY has no obligation to monitor the average use by the Customer or Consumer and/or to check for any anomalies.

5.13 If APP QUALITY uses a payment circuit, the following provisions apply. Payments launched by third parties (including recurrent payments). A payment launched by a third party is a payment in relation to which the Customer provides advance authorisation to third parties (for example a trader or eBay) to take funds from their PayPal account. An example of this type of payment is a “Recurrent payment”, which is a payment launched by third parties which can be handled via the Customer’s PayPal account. By providing Advance authorisation, the Customer permits a third party to collect or reverse payments for variable amounts from their PayPal account, whether this involves a single, sporadic or recurrent payment, until the contract or the authorisation with a pertinent third party is cancelled. Entering into the Contract, the Customer authorises and instructs PayPal to pay third parties (or the party otherwise indicated) amounts from their PayPal account, equal to the amounts due which we have requested from said third parties. The Customer accepts that PayPal is not obliged to check or confirm the amounts requested vis-à-vis third parties for the purpose for the processing of this type of payment. The Customer also acknowledges and accepts that the payments made in pursuance of this clause are variable or may be made on different dates.

Recurrent payments are also called “subscriptions”, “pre-approved payments” or “automatic payments”. The Customer accepts that they cannot request a reimburse from PayPal for a recurrent variable payment expect when:

a. the applicable amount has exceeded that which the Customer reasonably envisaged to pay, taking into account the previous spending conduct of the Customer and the circumstances of the case or;

b. The Customer has not provided his/her consent to the execution of the recurrent payment as indicated in the section, the information relating to the recurrent payment has not been provided by the Customer at least 4 weeks before the date when the payment transaction took place in favour of the trader;

c. The Customer does not inform PayPal of the request within 8 weeks of the date the payment was made;

d. The Customer does not execute the information requests necessary for the examination of the circumstances by PayPal.

A recurrent payment can be cancelled at any time up to three business days before the date planned for the payment. In order to cancel a recurrent payment, the Customer must access their PayPal account, click on “My account” and the “Profile” tab, then in the “Financial information” column click on “Payments list” or “Recurrent payments” and follow the instructions for cancellation of the payment. The Customer must bear in mind that the recurrent payments are some times known as subscriptions or pre-approved payments. Furthermore, if the Customer cancels a recurrent payment, he/she could be obliged to make the payment to APP QUALITY anyway, using alternative forms.

 

6. Performance of the contract and unsolicited supply

6.1 APP QUALITY is committed to implement the Contract as from its conclusion, that is from the time of activation of the Service or Services by the Customer or Consumer in the manner described in the paragraphs above.

6.2 In contracts concluded with the Consumer, pursuant to Article 54 of the Consumer Code, in the event APP QUALITY fails to provide the service, due to the unavailability, temporary or otherwise, of the Service requested, APP QUALITY shall immediately inform the Consumer, and shall refund any amounts already paid for the supply.

6.3 APP QUALITY shall not fulfil its obligations by means of a supply other than that agreed upon, even if with equivalent or greater value and quality, without the prior consent of the Consumer, to be expressed at the time of completion of the On-line form.

6.4 In the event that the Consumer has not given any consent to the acceptance of a Service other than that agreed upon, that is, the Service provided has not been requested by him/her, the Consumer shall not be required to pay any amount.

 

7. Method for supplying the Services

7.1 The Services shall be provided by APP QUALITY and/or its subcontractors via hardware and software technological infrastructures (in their entirety: “Infrastructure”) available to APP QUALITY and/or its subcontractors.

7.2 APP QUALITY has the unquestionable right to change any element of the Infrastructure at any time without the need to inform the Customer or Consumer. Only compliance with the characteristics of each Service must be ensured.

7.3 APP QUALITY and its subcontractors will use the Infrastructures in European Union countries.

 

8. Sub-contracting

8.1 APP QUALITY shall have the right to use subcontractors for the supply of all or part of each Service.

8.2 APP QUALITY shall have the right to change the subcontractors at its unquestionable discretion.

8.3 A list of the subcontractors used by APP QUALITY within the sphere of each Service is available to the Customer or Consumer by writing to the e-mail address relating to the selected Service (servicec@app-quality.com).

 

9. Fault reporting. Customer service

9.1 The Customer or Consumer shall inform APP QUALITY in writing of any faults in the fruition of the Services or difference in the Service requested contacting the numbers (0039 349 291 9298) or using the e-mail address relating to the selected Service (service@app-quality.com).

9.2 APP QUALITY will provide a response to the Customer or Consumer’s report within 30 (thirty) days.

 

10. Suspension of the Services. Service levels

10.1 Subject to the provisions in Article 11, in case of failures, faults, defects or malfunctions in one or more elements of the Infrastructure and/or hardware or software equipment of third parties or the connection networks used to allow the Customer or Consumer to use each Service, even if due to unforeseeable circumstances, force majeure or acts or circumstances outside the control of APP QUALITY, APP QUALITY may suspend each Service for the time necessary to correctly restore it.

10.2 Subject to prior notice of at least 2 (two) business days to be communicated by email to the Customer or Consumer, APP QUALITY may suspend the provision of each Service to allow the performance of routine maintenance tasks. In case of extraordinary maintenance, advance notice will be given to the Customer or Consumer wherever possible.

10.3 In all cases referred to in the preceding paragraphs, no compensation and/or consideration for any reason will be due by APP QUALITY to the Customer or Consumer.

10.4 APP QUALITY undertakes to ensure a level of service continuity (hereinafter: “SLAservice level agreement”) equal to or greater than 99.85% on an annual basis. Therefore, the SLA shall not apply to Contracts with a duration of less than one year. In the event of non-compliance with the SLA, APP QUALITY will be required to pay a penalty equal to the amount paid by the Customer or Consumer in proportion to the percentage between the total unused Services and the SLA. It is expressly understood that for each Contract the penalty may not exceed 15% of the value of the fee paid by the Customer or Consumer for the Contract during the year in which the malfunction occurred leading to service continuity falling below the SLA level.

10.5 In accordance with the provisions of the General Contract Terms and Conditions, APP QUALITY shall monitor the use of the infrastructure for security reasons and to prevent or stop abuse. To this end, APP QUALITY reserves the unquestionable right to suspend and/or temporarily restrict access to the Service with respect to one or more users if it detects an abnormal and/or intensive and/or fraudulent use of the Service which, at APP QUALITY’s unquestionable discretion, is capable of prejudicing the use of said Service by other users. In this case, APP QUALITY will immediately notify the user subject to a restrictive measure and wait for any justifications. In any case, in the cases described above, APP QUALITY may take action to recover the damages suffered and may terminate the General Terms and Conditions pursuant to Article 1456 of the Italian Civil Code.

 

11. Express termination clause. Withdrawal

11.1 In case of breach by the Customer or Consumer with regard to even one of the obligations referred to in Articles 13.1, 13.2, 13.3, 13.5, 13.5 and 13.6 of the General Terms and Conditions, as well as in other circumstances envisaged therein, APP QUALITY shall be entitled to terminate the Contract within the sphere in which the breach took place pursuant to Article 1456 of the Italian Civil Code by sending to the Customer or Consumer a registered letter with return receipt with obligation of the same to pay any fees due for the services rendered in addition to compensation for any damage suffered by APP QUALITY and any penalties provided for in the General Terms and Conditions.

11.2 APP QUALITY shall have the right to withdraw from the Contract if the Customer is subject to executive, bankruptcy, receivership procedures, or other insolvency procedures, in any event becomes insolvent or cedes assets to creditors, is subject to attachment or any other form of restriction on its assets or is placed in liquidation, voluntarily or on a compulsory basis, with the exception of the contracts entered into with Consumers.

 

12. Limited liability

12.1 APP QUALITY ensures the continuity of the Services, without prejudice to the possibility of temporarily suspending the same during ordinary and extraordinary maintenance services as per Article 10.

12.2 Except to the extent required by law, APP QUALITY, together with its parent companies, subsidiaries, affiliates and any of their assigns and tenants, will not be deemed liable vis-à-vis the Customer or Consumer, its successors and/or third parties which the latter is obliged to indemnify in any way for any damage, material or otherwise, direct and/or indirect, as well as for any interruption or suspension, even partial, malfunction or delay in the provision of each Service, caused by and/or connected to any circumstance due to fault or negligence, however slight, of the Customer or Consumer. In particular, the responsibility of APP QUALITY is excluded:

a) For damage resulting from (i) the malfunctioning of hardware or software resources owned and/or available to the Customer or Consumer, (ii) defective or incorrect use of one or more of the Services by the Customer or Consumer, (iii) performance, by the Customer, Consumer or a third party not expressly authorized by APP QUALITY, of interventions and/or tampering of the Services, (iv) breach of provisions and regulations by the Customer or Consumer, (v) inability of the Customer or Consumer to connect to the Internet and/or in any case to the Services due to fault or cause on his/her part, directly or indirectly, or otherwise on the part of a third party, under the control, even contractually, of the Customer or Consumer.

b) For damage caused by the equipment and/or software owned by or available to the Customer or Consumer to people or property of APP QUALITY, its parent companies, subsidiaries, affiliates and any of their assigns, tenants and/or third parties, even if due to their defects or faults both in manufacture and occurring subsequently. In any case, the Customer waives as from the signing of the Contract raising any dispute, exception, demand, claim, right, claim for compensation, or action of any kind or nature against APP QUALITY, its parent companies, subsidiaries, affiliates and any of their assigns and tenants, in the case of damage, material or otherwise, direct and/or indirect, interruption or suspension, even partial, malfunction or delay in the provision of Services, resulting from the provisions of this Article 12.2.

12.3 Except to the extent required by law, APP QUALITY, its parent companies, subsidiaries, affiliates and any of their assigns and tenants, will not be held liable vis-à-vis the Customer or Consumer, its successors and/or third parties which the latter is obliged to indemnify in any way for any damages, material or otherwise, direct and/or indirect, arising from and/or connected to unforeseeable circumstances and/or force majeure or acts of third parties. Force majeure means events which APP QUALITY cannot expect or predict, including but not limited to: sudden lack of power, explosions, lightening, earthquakes, fire, floods, strikes, acts of vandalism or intentional acts. In particular, APP QUALITY, its parent companies, subsidiaries, affiliates and any of their assigns and tenants shall not be held liable for damage resulting from:

a) Interruptions/suspensions, even partial, malfunctions, delay in the provision of Services;

b) Destruction, loss, theft, damage, deterioration, total or partial, of the Content of the hardware or software equipment of the Customer, Consumer and/or APP QUALITY;

c) Failed activation of one or more Services.

In any case, the Customer or Consumer waives as from the signing of the Contract raising any dispute, exception, demand, claim, right, claim for compensation, or action of any kind or nature against APP QUALITY, its parent companies, subsidiaries, affiliates and any of their assigns and tenants, in the case of damage, material or otherwise, direct and/or indirect, if the same were to suffer it as a result of the occurrence of the matters envisaged in this paragraph.

12.4 APP QUALITY will not be held liable vis-à-vis the Customer or Consumer for any damage caused by failure to meet its obligations when the act does not depend on intentional misconduct or gross negligence of APP QUALITY. In any case, the Customer waives as from the signing of the Contract raising any dispute, exception, demand, claim, right, claim for compensation, or action of any kind or nature against APP QUALITY, its parent companies, subsidiaries, affiliates and any of their assigns and tenants, in the case of damage, material or otherwise, direct and/or indirect, if the same were to suffer it because of App Quality’s failure to meet its obligations, when this has not depended on intentional misconduct or gross negligence of APP QUALITY.

12.5 The Customer agrees to indemnify and hold harmless APP QUALITY, its parent companies, subsidiaries, affiliates and any of their assigns and tenants, from any dispute, exception, demand, right, claim for compensation, or action of any kind and nature which were to be taken against APP QUALITY, its parent companies, subsidiaries, affiliates and any of their assigns and tenants, by third parties for damages, material or otherwise, direct and/or indirect, in any way dependent on the provisions of the above points 12.2, 12.3, 12.4.

12.6 In no event shall the provisions of the preceding paragraphs be construed so as to result in a limitation of liability of APP QUALITY due to breach attributable to the same by way of intentional misconduct or gross negligence.

12.7 Without prejudice to the limits required by law and except as provided for in the preceding paragraphs, the parties agree that in all cases in which APP QUALITY were to be found liable vis-à-vis the Customer or Consumer:

a) APP QUALITY shall not indemnify the Customer, its successors and/or third parties to which the Customer or Consumer was accountable for any reason, for damages resulting from lost profits, lost productivity, missed depreciation and amortization, loss of profit or any other form of loss of earnings or indirect and consequential damage or connected to the event giving rise to damage;

b) the damage to be compensated shall in no event exceed the total amount of the consideration actually paid by the Customer or Consumer to APP QUALITY for the Service which gave rise to the right to compensation in the six (6) months prior to the alleged breach.

12.8 It is expressly understood that all liability with regard to the terms and conditions of the license to use the computer programs which may be installed by the Customer or Consumer on the technological infrastructure used by APP QUALITY for the provision of Services are exclusively to the charge of the Customer or Consumer regardless of the method used by the same to obtain the ownership and/or rights of use of the programs. To this end, the Customer or Consumer is obliged to inform APP QUALITY of any restriction and/or limitation that may give rise to claims of every kind and nature from the Customer or Consumer. In such a case APP QUALITY shall be entitled at its own discretion to withdraw from the Terms and Conditions and from any Contract if it considers that third parties may submit claims in relation to the computer programs installed on the technological infrastructure used for the provision of the Services. In the event of withdrawal by APP QUALITY, nothing will be due in any way to the Customer or Consumer. In any case it is understood that the Customer or Consumer agrees to indemnify and hold APP QUALITY harmless from any damaging consequence that may derive as a result of claims by third parties.

 

13. The Client’s or the Consumer’s Obligations

13.1 The Customer or Consumer agrees to provide accurate personal information and keep it updated during the term of the Contract.

13.2 The Customer or Consumer agrees not to use any Service, and not to cause any third party to use them, in such a way as to give rise to offences of any kind and nature.

13.3 The Customer or Consumer is obliged to ensure that each Service is used only by persons authorized by him/her and subject to his/her direct control and hierarchical and disciplinary power assuming any responsibility in this regard.

13.4 The Customer or Consumer shall promptly inform APP QUALITY about any dispute, claim or proceeding brought by third parties in relation to each Service of which it becomes aware. The Customer or Consumer shall be responsible for any damage of every kind and nature, without exception, suffered by APP QUALITY due to failed or untimely communication.

13.5 The Customer or Consumer shall inform APP QUALITY about any partial or total interruptions of each service of access to telecommunication services provided by third party suppliers.

13.6 The Customer or Consumer shall be responsible for the Content and methods and reasons for the use of each Service and shall hold APP QUALITY harmless from any action, claim or exception which may be invoked by third parties in relation to the content and methods and reasons for the use of each Service by the Customer or Consumer. The Customer or Consumer assumes all responsibility also contractually (including, but not limited to: fairness in calculating the consideration owed by the Customer to its predecessors in relation to individual licensing policies) in relation to any software to be loaded on and/or used by the Infrastructure.

13.7 The Customer or Consumer guarantees the legitimate availability of data and/or information and in general of Content that will be loaded on and/or used by the Infrastructure.

 

14. Personal data processing

Pursuant to and for the purposes of Article 13 of Italian Legislative Decree No. 196/2003, containing the Personal Data Protection Code (hereinafter “Code”), APP QUALITY shall provide some information regarding the use of personal data referred to natural persons, provided by the Consumer/Customer or otherwise acquired by APP QUALITY , even in the future, during the term of the contract. Personal data will be processed for the following purposes:

a. Purposes strictly instrumental to the establishment/management of the Contract;

b. Purposes connected with the fulfillment of legal obligations, regulations, EU legislation, regulations issued by public authorities.

The provision of data which may be marked with an asterisk in the Form, although optional, is necessary to establish and manage the contractual relationship between the Consumer/Customer and APP QUALITY. The failure to provide for them or the partial or inexact provision may result in the impossibility to establish or to manage the contractual relationship.

Subject to the previous specific consent of the data subject only, personal data may be also processed for the following additional purpose. The consent may be provided in the context of the signature of the Contract or later and may be revoked anytime: sending of advertising materials or direct selling, performance of market surveys and commercial communication using automated contact means (e-mail).

The provision of data and of the consent to the processing for this additional purpose is optional; the failure to provide for them, the partial or inexact provision or the failure to provide the consent will have no consequence on the establishment or the management of the contractual relationship.

Under article 7 of the Code, the data subject has also the right to oppose anytime and free of charge, in whole or in part, to the processing of personal data concerning him/her, where it is carried out for the purpose of sending advertising materials or direct selling or else for the performance of market surveys or commercial communication performed through automated contact means (e-mail) by writing to service@app-quality.com.

Data will be processed by paper, on-line, electronic, computerized or automated media with logic strictly related to the purposes of the processing and anyway in order to warrant the security and the confidentiality of data and communications, in full respect of the rights of the data subject and of the legislation in force.

Personal data may be processed within the aforementioned limits and with the aforementioned means, by employees and collaborators of APP QUALITY appointed as persons in charge of the processing and data processors, which receive operational instructions and operate under the direct authority of the Data Controller.

Personal data may be also processed by third companies that perform tasks of a technical and organizational nature on behalf of APP QUALITY and act as data processors. By way of example but not limited to:

– Companies that perform help desk services;

– Companies that perform telemarketing services;

– Companies that perform services for mailing of invoices and/or other documents to customers.

Personal data may be also disclosed to third companies that act as autonomous data controllers. By way of example but not limited to:

– Banks and lending institutions;

– Professional and consultancy firms;

– Insurance companies;

– Public authorities when provided by law.

Data will neither be disseminated nor transferred abroad.

Please be informed that under article 7 of the Code, which is reported in full hereafter, the data subject may exercise anytime its rights towards The Data Controller or the Data Processor by writing to info@app-quality.com

Article 7 of Legislative Decree 30 June 2003 n. 196 – (Right to Access Personal Data and Other Rights) – 1. A data subject shall have the right to obtain confirmation as to whether or not personal data concerning him exist, regardless of their being already recorded, and communication of such data in intelligible form. 2. A data subject shall have the right to be informed: a) of the source of the personal data; b) of the purposes and methods of the processing; c) of the logic applied to the processing, if the latter is carried out with the help of electronic means; d) of the identification data concerning data controller, data processors and the representative designated as per Section 5(2); e) of the entities or categories of entity to whom or which the personal data may be communicated and who or which may get to know said data in their capacity as designated representative(s) in the State’s territory, data processor(s) or person(s) in charge of the processing. 3. A data subject shall have the right to obtain a) updating, rectification or, where interested therein, integration of the data; b) erasure, anonymization or blocking of data that have been processed unlawfully, including data whose retention is unnecessary for the purposes for which they have been collected or subsequently processed; c) certification to the effect that the operations as per letters a) and b) have been notified, as also related to their contents, to the entities to whom or which the data were communicated or disseminated, unless this requirement proves impossible or involves a manifestly disproportionate effort compared with the right that is to be protected. 4. A data subject shall have the right to object, in whole or in part, a) on legitimate grounds, to the processing of personal data concerning him/her, even though they are relevant to the purpose of the collection; b) to the processing of personal data concerning him/her, where it is carried out for the purpose of sending advertising materials or direct selling or else for the performance of market or commercial communication surveys.

The Data Controller is: APP QUALITY S.r.l. represented by its legal representative with headquarters in via del chiesotto 4, 26100, Cremona, Italy

The Data Processor is Luca Manara

An up-dated list of the data processors appointed by the Data Controller can be requested from said Data Controller or the Data Processor contacting info@appquality.com

 

15. Consumer’s right to withdraw: disclosure and exercise of right

15.1 Italian Legislative Decree N. 206 dated 2005 will only apply in contracts entered into with Consumers. In any event, the right of withdrawal.

As per Article 55.2, letter a) of Italian Legislative Decree No. 206 dated 2005 is excluded, since as from the moment of compilation of the On-line form or Form, the Consumer enters into the Contract for the supply of the selected Service, whose execution takes place as from the moment of acceptance and therefore before the deadline of ten days as from the date of signing, by way of departure to the deadlines envisaged by Article 64.1 of the Consumer Code.

15.2 The Consumer declares that, accepting the immediate execution of the Contract, it duly notes that it must waive the right to withdraw to be exercised within 10 days of the Contract being entered into.

 

16. Invalidity of the clauses

In the event that one of the General Terms and Conditions or part of the same is deemed invalid or inapplicable, the invalidity shall not invalidate the remaining part of the clause or the General Terms and Conditions which will continue to being fully applicable. The articles of the General Terms and Conditions declared invalid or unenforceable will be replaced by other legally permitted clauses that shall make it possible to give the General Terms and Conditions a content as close as possible to the General Terms and Conditions.

 

17. Applicable law and jurisdiction

17.1 The General Terms and Conditions are governed by Italian law. The Cremona Court has sole jurisdiction for any disputes, with the exclusion of any other concurrent court, except in the cases where the law expressly envisages a specific court of jurisdiction.

17.2 In Contracts concluded with Consumers the provisions of the Consumer Code will apply.

 

DISCLOSURE FOR THE CONSUMER PURSUANT TO ARTICLE 52 OF THE CONSUMER CODE (Italian Legislative Decree No. 206 dated 6 September 2005)

Pursuant to and for the purposes of Article Article 52 of the Consumer Code, APP QUALITY informs you as follows:

1. APP QUALITY S.r.l. is headquartered in via del chiesotto 4, 26100, Cremona, Italy

2. The Service you have purchased has the following essential characteristics: An IT service which makes it possible to test and verify your mobile application

3. The price of the Service is individual, and varies depending on the Service and the features you have chosen and the use for which the Service is intended and is referred to when completing the On-line form or Form.

4. The total price of the Service, as indicated in step 3, is inclusive of taxes and duties.

5. The total price does not include any additional expenses that have not previously been communicated to you.

6. The payment of the price to purchase the Service can be made under the following conditions: payment by credit card or PayPal account.

7. The different technical steps for the conclusion of the contract and for the activation of the Service are indicated under Article 2 of the contract and precisely:

a.1) For the on-line conclusion of the Contract with APP QUALITY, it is necessary to compile the On-line form to subscribe to the selected Service and send it to APP QUALITY via the Website. This determines the conclusion of the Contract for the purchase of the Service.

a.2) After the execution of the Contract, the Consumer will receive an e-mail confirmation from APP QUALITY. In order to activate the Service, the Consumer must notify APP QUALITY of the receipt of the e-mail thereby activating the Service referred to on the Online form, following the instructions contained in the e-mail (the customer must activate the service within 5 days of receipt of the e-mail).

a.3) In the event that the Consumer does not comply with points a.2), APP QUALITY shall be entitled, by sending an e-mail reminder requesting compliance within 5 calendar days, to terminate the Contract pursuant to Article 1456 of the Italian Civil Code via a registered mail with return receipt without prior notice. In that case, no dispute may be raised by the Consumer who will not be entitled to any compensation and without prejudice to the right of APP QUALITY to retain the amount paid by the Consumer for the first month of Service provision.

b) In cases of on-line conclusion of the Contract, the selected Service is activated after the execution by the Consumer of the instructions contained in the e-mail.

c) In cases of off-line conclusion of the Contract, the selected Service is activated as from the moment of receipt by the Customer of the e-mail used to inform of the possibility of starting to use the Service.

d) If envisaged on the Website, the Consumer shall be entitled to a free trial according to the detailed terms and conditions available on the Website. In any case, it is understood that the General Terms and Conditions shall also apply to the free trial to the extent compatible with them.

8. Pursuant to Article 55.2, letter a), APP QUALITY informs you that by filling out the Online form or the Form you will give immediate effect to the performance contained in the contract, resulting in waiver of the right to withdrawal within 10 working days. Thus by way of departure to the general principle laid down by Article 64 of the Consumer Code which provides for the right of withdrawal of the consumer, without any penalty and without giving any reason, within 10 working days.

As for the clauses excluding the right of withdrawal, Article 55.2, letter a) of the Consumer Code provides for the case of:

– the provision of services if performance has begun, with the consumer’s agreement, before the expiry of ten working days.

9. The mode of delivery and terms of Service activation, described in these notices as well as in the contract, may be amended at any time by APP QUALITY subject to prior notice.

10. APP QUALITY informs you of your right not to make any payment in the event of unsolicited supplies or provision performed other than that agreed upon at the time of filling in the On-line form or Form. It is understood that only in the case of express consent of the consumer, APP QUALITY shall deliver a different service, as long as quality and value are equal or greater, compared to the Service purchased.

11. The Contract for APP QUALITY Basic Service does not have a minimum duration, and is effective as from the moment the Service is activated. The service must be used within one year of purchase. The Contract for APP QUALITY Professional Service has a minimum duration of 1 (one) month, and is effective as from the moment the Service is activated. The Contract for APP QUALITY Free trial does not have a minimum duration, and is effective as from the moment the Service is activated. The service must be used within one year of registration.

12. Any offers made by APP QUALITY at the time of filling in the On-line form or Form for the purchase of the selected Service have duration and validity limited to that Service, except for any future offers which may be made by APP QUALITY.

13. APP QUALITY informs you that the contract shall be automatically renewed for a period of time equal to the initial term, except in case of refusal to be notified with written notice of ten days in the manner described in point a.3).

14. The contract entered into will be filed by APP QUALITY and the Consumer may request a copy sending an e-mail to customer services relating to the selected Service (service@app-quality.com).

15. If, while filling in the On-line form the Consumer makes data entry errors that will be forwarded to APP QUALITY for the conclusion of the contract, the consumer must give immediate notice to customer services, according to the following procedure: it will be necessary to send an e-mail to APP QUALITY customer services relating to the selected Service (service@app-quality.com) indicating the registration e-mail address and the error made.

16. The Contract is governed by Italian law. Any dispute relating to the application, execution, interpretation and violation of Contract will be handled by the Court of residence of the Consumer. 17. Any comments relating to customer service regarding the selected Service, reporting faults or complaints can be sent:

a. By e-mail sent to the address relating to the selected Service (service@appquality.com)

b. By registered mail with return receipt to APP QUALITY Customer Service (address via del chiesotto 4, Cremona);

c. To the phone number (0039 3286 350 983)

18. The Consumer has the right to purchase the Service free from any defects and in compliance with the purpose for which it is intended. In any case, the contract executed with the Consumer shall be governed according to warranty provisions in compliance with the manners and terms contained in the Consumer Code

 

Pursuant to and for the purposes of Articles 1341 et seq., the Customer declares that she/he has read, understood and specifically accepted the following provisions:; 3.3 (departure from the right of withdrawal); 4.1 (limited liability); 5.3 and 5.4 (modification of fees and prices); 5.6 (default interest); 5.9 (suspension of the Services, penalty); 5.10 (guarantee deposit); 7.2 (changes to the Infrastructure); 8.1 (right to subcontract ); 10.1, 10.2 and 10.3 (suspension of the Services and limited liability); 11.1 (express termination clause); 11.2 (right of withdrawal); 12.1, 12.2, 12.3, 12.4 (limited liability – limitation of the right to propose exceptions – waivers); 12.5 (indemnification); 12.7 (limited liability – maximum allowable damage); 12.8 (right of withdrawal); 16 (invalidity of clauses); 17.1 (applicable law and jurisdiction).