TTOOLE TERMS OF SERVICE
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ACCEPTED AND AGREED,” EACH CUSTOMER AGREES TO THESE TERMS OF SERVICE.
These Terms of Service constitute an Agreement (this “Agreement”) by and between Practix s.r.l., with seat in via Sommarive, n. 18, 38123 Povo (TN), Italy, www.practix.net, email@example.com a (“Provider”) and each customer (“Recipient”) of Provider’s online TToole Service. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR ENTITY, YOU HEREBY GRANT TO HAVE THE AUTHORIZATION AND FULL POWER TO DO SO.
(b) “Authorized Representative” refers to the person who is entering in this Agreement on behalf of a company or other entities, and has therefore the authority to bind such entity;
(c) “Costs and Fees” refer to the costs and fees to be paid for the Use of the Service under this Agreement and are available at www.ttoole.com/costsandfees.aspx;
(d) “Effective Date” refers to the date of commencement of the Service which is the date of acceptance of this Agreement.
(e) “Force Majeure” refers to cases in which the Provider will not be liable for any failure or delay in performance of this Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including, but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders, interruption of internet connections or any other force majeure event.
(f) “Materials” refers to written and graphical content provided by or through the Service, including, without limitation, text, photographs, illustrations, and designs, whether provided by Provider, another customer of the Service, or any other third party.
(g) “Recipient Data” refers to data in electronic form input or collected through the Service by or from Recipient.
(i) “Program documentation” refers to the program user manual as well as any other materials provided by Practix as part of the services;
(j) “Service” refers to Provider’s TToole Service. The Service includes such features as are set forth on Provider’s webpage www.ttoole.com/costsandfees.aspx under “Service Policy”, as Provider may change such features from time to time, in its sole discretion.
(k) “Service Failure” refers to any case in which the TToole Service does not work properly due to Practix's activities. This term shall not include any case of Force Majeure or which is not under the control of Practix.
(l) “TToole Service” or “TToole Software” refers to platforms to be performed on different devices, a software which creates a net between the different devices, a cloud platform for data ad users management: “TToole Workspace” refers to the software to be run on the desk; “TToole Overview” refers to the software to be run on tablet and laptops, it gives commands to the desks and creates data and contents; “TToole Proxy” refers to the software which connects the different Workspaces and Overviews; “TToole Cloud” is the website with data saving which is used to manage users data, registration, users' performances, payments;
(m) “Use” refers to the use of the TToole Software pursuant to the term of this Agreement. In particular, the Use is limited to the executable Software and solely for the purposes the Software was created for. You are not allowed to copy, decompile, modify, distribute, sell or do any other action which may differ from the scope of this Agreement and which is not expressly authorized by Practix.
2. TToole Service and Software
By accepting this Agreement, You are allowed to download the TToole Software and to Use it pursuant to the terms in this Agreement. The Software allows You to create group learning models through different devices, to connect them and to create Your on database.
As part of the Service, Provider will maintain Your database and support the installation and use of the Software pursuant to section 12 below.
Provider will provide the Service to Recipient pursuant to this Agreement and by using its best effort in granting You the Service.
Recipient will pay Provider at the moment of the downloading of the Service under the provisions of this Agreement and pursuant to the Costs and Fees.
You agree to pay for all Services ordered. All fees due under the Agreement are non-cancelable and the sums paid non-refundable. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that Practix must pay based on the services You ordered.
You will reimburse Practix for reasonable expenses related to providing any on-site portion of the services.
All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice.
4. Rights granted.
Upon Practix's acceptance of Your order and for the duration of the Service term defined, You have the non-exclusive, non-assignable, worldwide limited right to Use the Service solely for the purposes and subject to the terms of the Agreement.
The Services are provided as described in, and subject to, the Service Policy.
You acknowledge that Practix has no delivery obligation and will not ship copies of the TToole Software to You as part of the Service. You agree that You do not acquire under the Agreement any license to use the TToole Software in excess of the scope and/or duration of the Service. Upon the end of the Agreement or the Service thereunder, Your right to access or use the TToole Service shall terminate.
You may not:
(a) remove or modify any program markings or any notice of Practix's or its licensors’ proprietary rights;
(b) make the programs or materials resulting from the Services available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific program license or materials from the services You have acquired);
(c) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Practix;
(d) disclose results of any services or program benchmark tests without Practix's prior written consent; and
(e) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the services, Practix's programs or materials available, to any third party other than, as expressly permitted under the terms of the Agreement.
The rights granted to You under the Agreement are also conditioned on the following:
(f) the rights of any User licensed to Use the Services (e.g., on a “named user” basis) cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user, in which case the prior authorized user shall no longer have any right to access or use the license);
(g) except as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
(h) You agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
6. Service Failures.
In the event of any “Service Failure” which is due to Practix's liability, Provider will keep Recipient's payments as valid and, if necessary, extend the duration of this Agreement according to the failures occurred.
Provider is not required to extend the Service in case the failure is due to Force Majeure or any other action or fact which is not and can not be under its control (such as, but not limited to, interruption of internet connection, Recipient's own hardware failures, ecc.).
Extensions issued pursuant to this Section are Recipient’s sole remedy for the Service Failure in question.
7. Materials, Software, & IP.
(a) Materials. Recipient recognizes and agrees that: (i) the Materials are the property of Provider or its licensors and are protected by copyright, trademark, and other intellectual property laws; and (ii) Recipient does not acquire any right, title, or interest in or to the Materials except the limited and temporary right to use them as necessary for Recipient’s use of the Service.
(b) IP in General. Provider retains all right, title, and interest in and to the Service, including without limitation all software used to provide the Service and all logos and trademarks reproduced through the Service, and this Agreement does not grant Recipient any intellectual property rights in or to the Service or any of its components.
(c) User's data. You retain all ownership and intellectual property rights in and to Your data.
PRACTIX WILL NOT INDEMNIFY YOU FOR INFRINGEMENT CAUSED BY YOUR ACTIONS AGAINST ANY THIRD PARTY IF THE SERVICE AS DELIVERED TO YOU AND USED IN ACCORDANCE WITH THE TERMS OF THE AGREEMENT WOULD NOT OTHERWISE INFRINGE ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. PRACTIX WILL NOT INDEMNIFY YOU FOR ANY INFRINGEMENT CLAIM THAT IS BASED ON: (1) A PATENT THAT YOU WERE MADE AWARE OF PRIOR TO THE EFFECTIVE DATE OF THE AGREEMENT (PURSUANT TO A CLAIM, DEMAND, OR NOTICE); OR (2) YOUR ACTIONS PRIOR TO THE EFFECTIVE DATE OF THE AGREEMENT.
8. Each Party’s Warranties.
(a) Recipient’s Identity. Recipient warrants: (i) that it has accurately identified itself through its Account and will maintain the accuracy of such identification; and (ii) that it is a corporation or other business entity authorized to do business pursuant to applicable law or an individual 18 years or older.
(b) Right to Do Business. Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
(c) Disclaimers. Except for the express warranties specified in this section 4, THE SERVICE IS PROVIDED “AS IS” AND AS AVAILABLE, AND PROVIDER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
Without limiting the generality of the foregoing, (i) PROVIDER HAS NO OBLIGATION TO INDEMNIFY OR DEFEND RECIPIENT AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; and (ii) Provider does not warrant that the Service will perform without error or immaterial interruption.
9. Limitation of Liability. IN NO EVENT: (a) WILL PROVIDER’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY THE RECIPIENT AT THE MOMENT OF DOWNLOADING AND (b) WILL PROVIDER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES. THE LIABILITIES LIMITED BY THIS SECTION 9 APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (iii) EVEN IF PROVIDER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iv) EVEN IF RECIPIENT’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 9, Provider’s liability will be limited to the maximum extent permissible.
PRACTIX DOES NOT GUARANTEE THAT THE SERVICE WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED. YOU ACKNOWLEDGE THAT PRACTIX DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. PRACTIX IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS OR ANYWAYS DUE TO FORCE MAJEURE.
10. Data Management.
(a) Access, Use, & Legal Compulsion. Unless it receives Recipient’s prior written consent, Provider: (i) will not access or use Recipient Data other than as necessary to facilitate the Service; and (ii) will not give any third party access to Recipient Data. Notwithstanding the foregoing, Provider may disclose Recipient Data as required by applicable law or by proper legal or governmental authority. Provider will give Recipient prompt notice of any such legal or governmental demand and reasonably cooperate with Recipient in any effort to seek a protective order or otherwise to contest such required disclosure, at Recipient’s expense.
(b) Recipient’s Rights. Recipient possesses and retains all right, title, and interest in and to Recipient Data, and Provider’s use and possession thereof is solely as Recipient’s agent.
(c) Retention & Deletion. Provider will retain all Recipient Data until erased pursuant to the Data Policy.
(d) Injunction. Provider agrees that violation of the provisions of this Section 8 might cause Recipient irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Recipient will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
11. Term & Termination.
(a) Term. This Agreement will continue for 12 months following the Effective Date (a “Term”). Thereafter, this Agreement will renew for subsequent terms (“Terms”) of 12 months, unless either party notifies the other of its intent not to renew 15 days or more days before the beginning of the next Term.
(b) Termination for inactivity. If the User does not Use the Software for a non-interrupted period of 12 months, Practix may at its own discretion eliminate such User's Account, data and information without previous notice.
(c) Termination for Cause. Either party may terminate this Agreement for material breach by written notice, effective in 30 days, unless the other party first cures such breach.
(d) Effects of Termination. The following provisions will survive termination of this Agreement: (i) any obligation of Recipient to pay for Service rendered before termination; (ii) Sections 4, 5(b), 6(c), and 7 of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfill its essential purpose.
(e) By the time of termination of this Agreement You must pay within 30 days all amounts which have accrued prior to such end, as well as all sums remaining unpaid for the Services ordered under the Agreement plus related taxes and expenses.
(f) If the Agreement is ended because of Your breach, You must pay within 30 days all amounts remaining unpaid for services plus related taxes and expenses. The non-breaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach.
(g) You agree that if You are in default under the Agreement, You may not use the Services ordered. In addition, Practix may immediately suspend Your password, Account, and access to or use of the Services (i) if You fail to pay Practix as required under the Agreement and do not cure within the first ten days of the 30 day cure period, or (ii) if You violate any provision within sections 4, 5, 7, 8 and 12 of this software as a service Agreement. Practix may terminate the Services hereunder if any of the foregoing is not cured within 30 days after Practix's initial notice thereof. Any suspension by Practix of the Services under this paragraph shall not excuse You from Your obligation to make payment(s) under the Agreement. At Your request, and for a period of up to 60 days after the termination of the Agreement, Practix may permit You to access the Services solely to the extent necessary for You to retrieve a file of Your data then in the Services environment. You agree and acknowledge that Practix has no obligation to retain Your data and that Your data may be irretrievably deleted after 60 days following the termination of Agreement.
By virtue of the Agreement, the parties may have access to information that is confidential to one another (“confidential information”). We each agree to disclose only information that is required for the performance of obligations under the Agreement. Confidential information shall be limited to the terms and pricing under the Agreement, Your data residing in the services environment, and all information clearly identified as confidential at the time of disclosure. A party’s confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
We each agree to hold each other’s confidential information in confidence for a period of five years from the date of disclosure. Also, we each agree to disclose confidential information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the Agreement. Practix will protect the confidentiality of Your data residing in the services environment in accordance with the Practix security practices specified in the Service Policy referenced in the ordering document. Nothing shall prevent either party from disclosing the terms or pricing under the Agreement in any legal proceeding arising from or in connection with the Agreement or from disclosing the confidential information to a governmental entity as required by law.
(a) Notices. Provider may send notices pursuant to this Agreement to Recipient’s contact points listed in Recipient’s Account, and such notices will be deemed received 15 days after they are sent. Recipient may send notices pursuant to this Agreement to firstname.lastname@example.org, and such notices will be deemed received 15 days after they are sent.
(b) Amendment. Provider may amend this Agreement from time to time by posting an amended version at its website and sending Recipient written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Recipient first gives Provider written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Recipient’s next Term following the Proposed Amendment Date (unless Recipient first terminates this Agreement pursuant to Section 9 above). Recipient’s continued use of the Service following the effective date of an amendment will confirm Recipient’s consent thereto. This Agreement may not be amended in any other way except through a written Agreement executed by Authorized Representatives of each party. Notwithstanding the foregoing.
(c) Costs subject to amendment. Provider may amend at its own discretion the Costs and Fees of the Services. Recipient who has already paid, according to the pre-existing Costs and Fees rules, will not be asked to complete such payments according to the new Costs and Fees rules. The new Costs and Fees rules will apply only for new Accounts and/or for new payments.
(d) Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way.
(e) No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an Authorized Representative and (ii) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
(f) Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
(g) Assignment & Successors. Neither party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that either party may assign this Agreement to the surviving party in a merger of that party into another entity. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
(h) Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the Italy, without reference to such State’s principles of conflicts of law. The parties consent to the personal and exclusive jurisdiction of court of Trento, Italy.
(i) Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
(k) Entire Agreement. This Agreement sets forth the entire Agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications.