Artshell

Terms and Condition of license of SAAS (Software as a Service)

between

Artshell S.r.l., with registered office in Milan, 20123, Via Carducci n. 8, Tax Code and VAT Number 10440980968, in the person of its pro tempore legal representative (“Artshell”),

and

The legal entity, self-employed professional or consumer identified as client in the Order Form (“Client”).

Artshell and the Client hereinafter jointly referred to as “Parties” and, individually, as “Party

WHEREAS

  1. A. Artshell is a company operating in the sector of management of works of art and, more specifically, in the development of IT systems to facilitate and streamline the activities relating to the management, classification and share of works of art and artistic collections;
  2. B. Artshell developed a software – called “Artshell” and accessible through an online platform at app.artshell.eu – capable to provide galleries, art collectors, artists and museums with a full and integrated management of works of art, through a simple and intuitive web or mobile-based interface able to streamline the activities relating to the management, archiving and presentation of the works of art and to improve the efficiency of such activities;
  3. C. The Client, for the purpose of facilitating its management work and of improving the presentation and communications of the works of art to the public at large and to the collectors’ market, intends to use the services offered by the “Artshell” platform.

NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS

  1. Recitals and Annexes

    1. 1.1. The recitals and Annexes 1 (Order Form), 2 (Software and technical requirements), 3 (SaaS Services) and 4 (Agreement of appointment of Data Processor) are integral and substantial part – for all purposes – of these general Terms and Conditions of Software as a Service license (the “Agreement”). Copy of the Agreement (and, therefore, of the relevant annexes) will be available to the Client and may be consulted at any time in the Client’s personal area of the Artshell profile created on the Platform.
  2. Definitions

    1. 2.1. In addition to what is expressly defined within the Agreement, the following terms, with capital letter, shall have the meaning attributed thereto in this Article: 
      • “Chatting” means the SaaS Service of integrated instant messaging in all Platform Subscription Levels, including the “FREE,” version. The Chatting service may be activated by any User in relation: (i) to all public profiles of the Users registered on the Platform; (ii) to its followers, i.e. followed private profiles; (iii) to all contacts of the Client’s mailing list, even if they are not registered at Artshell, and to whom, for the purpose of accessing such SaaS Service, a link will be sent to register to the Platform or an invitation will be sent to use the Saas Services for a limited period of time as “FREE” version; and (iv) in the event that the User has enabled the Website Integration service, to the list of contacts directly registered through the website so created. The contents of the messages exchanged through the Chatting service will be recorded and stored for a period of time proportional to the selected Subscription Level (in case of a “FREE” version the retention time is 60 days) and will contribute to the statistical analysis relating to the sharing activities made through the Chatting SaaS Service (i.e. sender’s and recipient’s name; date and time of forwarding and reception of the communication; contents of messages and relevant files attached, including the Photos of the Works, and of communications exchanged on the Platform).
      • Client-Consumer” means the Client individual who uses the Platform and the Software for purposes not related to any entrepreneurial, commercial, handicraft or professional activity carried out by the same; 
      • Client-Organizer” means organizers of online exhibitions, associations, non-profit spaces, private collections, museums, art galleries, cultural institutes, online art and event service companies and any other subject organizing online any type of events, that use the Platform for commercial, promotional and information purposes relating to their activity; 
      • Admin Credentials” means the credentials identifying the User Admin (i.e. user name, email and password), chosen and developed by the latter during the phase of registration and creation of the account on the Artshell Platform. The Admin Credentials, so identified, uniquely refer to the User Admin (and, consequently, to the Client), and are not transferable and/or usable by third parties in any way whatsoever, and are required for the use of the SaaS Service by the Users. The email address provided upon registration shall not be modified, except in case of cancellation of the email account provided by the User.
      • Basic Credentials” means the Basic User/s’ ID credentials (i.e. username, email and password) chosen and developed by the latter upon the first authenticated access to the Platform made through the email received from the User Admin and containing the link and the temporary access password. The Basic Credentials, so identified, are required to use the SaaS Services by the Basic User/s, according to latter’s access privileges, that uniquely refer to the same (and, consequently, to the Client) and are not transferable and/or usable by third parties. The email address provided upon registration cannot be modified, except in case of cancellation of the email account provided by the User.
      • Credentials” means jointly the Admin Credentials and the Basic Credentials identifying the Users, as defined hereinafter.
      • Database” or “Client’s Database” means all the Photos of the Works, all the documentation inherent to the latter and to the works of art represented therein, as well as the relevant certifications and all the additional data and/or information and/or contents loaded, entered, saved, managed, processed and developed by the Client on the Platform and through the Software, including personal and contact data included in the Client’s mailing list, required to use the Newslettering service, the Events organized and/or promoted by the Client or to which the Client has been invited, the contents of the Chatting service, and all that has been shared by and with the Client, by other Artshell users, through the “Network” Saas Service (as defined hereinafter) and, in general, the results of the activities of management, archiving, classification, sharing, tagging and presentation of the Photos of the Works relating to the SaaS Services. In case of multiple accounts and of one or more Basic Users underlying the User Admin profile, the Client Database includes all that has been uploaded, entered, saved, managed, processed and developed by each Basic User. The Basic User may access the Client Database with its Basic Credentials provided upon registration and, after accessing its profile, may display, process and interact with the contents uploaded on the same Client Database by other Basic Users underlying the User Admin profile.
      • Effective Date” means the date starting from which the Agreement shall be effective, i.e. the date on which the Client, following the request to register its account, pursuant to article 3 hereinbelow, clicks the link received through the Account Activation email for the first authenticated access to the Platform.
      • Term” means the period of validity of the Agreement specified in the Order Form and related to the Subscription Level requested by the Client.
      • Account Activation emailmeans the confirmation email sent by the User Admin following the definition, by the latter, of the Admin Credentials, containing the link of first access to the Platform being relevant for the purposes of closing the Agreement pursuant to article 3 hereinbelow and the consequent full activation of the account.
      • Events” means the function integrated in the Network SaaS Service (as defined hereinafter) allowing the User to create, customize, create VIP passbook, promote, schedule, share an event “card” with its Network and register and attend all the events sponsored through the Platform. In case of a User who has used the “FREE&redquo; version without subscribing any paid Subscription Level, the Events function allows solely to schedule, register at and attend events of interest organized/created by third parties. This function allows to invite to the Events (i) all public profiles of the Users registered on the Platform; (ii) their own followers, i.e. the private profiles followed; (iii) all contacts of which the User has an email address, even not registered at Artshell and to whom, for the purposes of registering at and attending the Event, a link will be sent to register on the Platform or an invitation will be sent to use the SaaS Services for a limited period of time with the “FREE” version. The Events function also allows the User to process and display any statistical analysis relating to the performance of the organized/sponsored events and to the attendance data (i.e. name and/or ID User and email address; date and time on which the User registered at the event or refused the invitation or cancelled the event; date and time of the User’s entrance at the event through the scan of the passbook generated by the Platform or through the ticking of the specific section of the Artshell app).
      • Visitors Book” means the function integrated in the Saas Service that enables the User to share its contact data (i.e. account name and registration email) with another User, hence intentionally asking to be included in such User’s “contact list”, for the purpose of receiving any notification relating to the activities carried out by the latter;
      • Following” means the function integrated in the Network SaaS Service (as defined hereinafter), by which the User may search, display and follow the public profiles of other Users registered on the Platform and, in the event of private profiles, may activate the following process only with regard to the Users who have shared with the same specific elements of the Database within the framework of the Network service. By activating the following process, the User allows to include its name and ID User in the list of the followers of the account followed, and, consequently, consents to (i) be subject, in turn, to the following process by the account followed or, otherwise, to be blocked by the latter; (ii) receive from the account followed “cards” sharing its Database; (iii) messaging with the User through the Chatting SaaS Service; (iv) receive any email communications including marketing or information offers and, if the followed User has activated the Newslettering service, receive the latter’s newsletter and, finally, (v) be included in the statistics of email sharing and displaying of the followed account.
      • Photos of the Works” means all photographic images reproducing the works of art, of any kind and on any media, which are loaded, entered, saved, managed, processed, edited and shared on the Platform through the Software, by the Client or by any Basic User associated with the User Admin profile, and for the management, classification and presentation of which the Client uses the SaaS Services.
      • Confidential Information” means the technical-scientific-IT, commercial or financial procedures, information and knowledge and any analogic and/or digital document in which the foregoing is contained or, in any case, reflected, that have been notified or sent between the Parties (in any form and/or on any media, including correspondence) in the framework of the negotiations and performance of the Agreement or, in any case, in relation to the same Agreement, even if they are not specifically qualified as “reserved/secret/confidential” or like wording.
      • Subscription Level” means the option in terms of quantity and time of use of the SaaS Services, against payment of different fees, that the Client may select when signing the Order Form. “FREE” Subscription Level means the trial period of the Software and SaaS Services that Artshell grants to Clients free of charge and for “testing” and verifying the functions provided by the Platform.
      • Order Form” means the order form that – after being filled in by the Client with all the information relating to the same, to the User and to the Subscription Level, and digitally signed and sent by the Client to Artshell through Artshell pricing page – formalizes the request to activate the SaaS Services and the proposal made to Artshell to close the Agreement. An extract of the Order Form filled in by the Client is sent to the Client concurrently with the first invoice or payment receipt, and shall be deemed attached hereto as Annex 1
      • Network” means the SaaS Service integrated in all Subscription Levels, including the “FREE” version, consisting in the possibility for the Users to create their profile, selecting between the private and public mode, through which to display, follow and save (through the Following function) other profiles or aggregations of profiles registered on the Platform and share specific elements of its Database with another User, either a User Admin or a single Basic User, or with any of its email contacts who may also not be Artshell users. In the latter case, the link to register to the Platform or the invitation to use the SaaS Services for a limited period of time by the “FREE” version is sent to any such contact. The sharing activity allows the User to configure - for each element of the Database which is intended to be shared – a network “card” by selecting (i) the object to be shared (e.g. Photos of the Works, Events, artists, contacts, insights); (ii) the data, information and documentation to be shared for each element; (iii) the type, whether you prefer a “public” share, i.e. visible to all Artshell Users, or a “private” share accessible only to Users previously identified and selected; (iv) the share permits, by selecting three modes: “read” mode (only display or removal of the received “card”), “forward” mode (allowing the recipient User also to forward – without modifying it – the “card” to the other Users of its own network) and the “acquisition” mode (allowing to duplicate the shared element and its acquisition in the recipient User’s Database while the recipient User can perform therein all the activities allowed by the Software and the Platform). The Network service also allows the User to process and display any statistical analysis relating to its sharing activities (i.e. recipient’s username; share date; number of times in which the User displayed, forwarded or acquired the shared “card” according to the share permit received).
      • Newslettering” means the SaaS Service integrated in all Subscription Levels and consisting in the uploading, archiving and processing of personal and contact data of data subjects (i.e. contacts and prospects) being part of the Client’s mailing lists for the purpose of forwarding to the latters any information and/or marketing communications relating to the Client’s activity through the Platform and the Software. The Newslettering service may be deactivated at any time by the recipient by clicking “UNSUBSCRIBE”. The Newslettering service also allows the User to process and display the statistical data of recipients’ interaction with the newsletters and the communications received (i.e. recipient’s username; activity carried out, date of reception; communication display, removal and share).
      • Recurring Payment” means a payment term that may be selected by the Client concurrently with the selection of the Subscription Level and upon stipulation of the Agreement, featuring automatic and recurring payments, on a monthly or annual basis, of the Fee and the tacit and automatic renewal of the Agreement and of the License at the expiry date of each Term of the same Agreement.
      • Storage Period” means the computer storage period of the Client Database (and, namely, of the Photos of the Works) corresponding to the Subscription Level, including the “FREE” version, and specified in the Order Form (the “Storage Period”)..
      • Platform” means the online platform, accessible through authentication at app.artshell.eu or through the app for mobile devices, with which it is possible to use the Software and, consequently, the SaaS Services. 
      • Maintenance Service” means the technical, maintenance, repair, full restoration of operation, re-installation, bug-fixing and Software and/or Platform upgrade service activities. 
      • Exhibition Area Service” means the service, addressed to Clients-Organizers, that, within the scope of the Network SaaS Service, enables to create the specific share channels and online exhibition spaces to which Users may access through specific login sections and subject to prior acceptance of the contractual and privacy documentation of the individual Client-Organizer;
      • SaaS Services” means the services regarding (i) the management, archiving, classification, share, tagging, presentation, integration with documentation and certification of the Photos of the Works and, in general, what is contained in the Client Database; (ii) Newslettering, Chatting, the creation, promotion and registration at Events as well as the WebSite Integration service (when selected); (iii) Network within which the Following and Visitors Book functions are operational together with the customization of some graphic and visual aspects of the Client’s profile, and uploading of Client’s distinctive signs; and (iv) the Exhibition Area Service; such SaaS Services can be performed by the Software and used by the Client through the authenticated access to the Platform, differentiated by quantity, quality and time based on the Subscription Level requested by the Client in the Order Form, as better specified and detailed in Annex 3.
      • Software” means the “ARTSHELL” computer program as per recital B hereof, as better described also with reference to the operating technical requirements in Annex 2, capable to perform the SaaS Servics and usable through the Platform on the terms and under the conditions hereof and according to the Subscription Level requested by the Client in the Order Form.
      • User Admin” means the Software user, identified by the Client as User Admin in the Order Form (who, in case of a legal person, may also be an employee and/or collaborator and/or any other person authorised by the Client to use the Software) who: (i) manages the use of the SaaS Services by the Client and is responsible for the use of the Platform and the Software; (ii) decides, identifies and enables the Basic Users by various access privileges; (iii) may enter and update the ID data of the Client in the Software; and (iv) selects, loads and analyses the Client Database in using the Saas Services.
      • Basic User” means the Software user, appointed, authorised by the User Admin – as well as instructed by the latter about the use of the Platform and the Software, and about the terms and conditions hereof – who: (i) selects and autonomously sets the Basic Credentials; (ii) uses the SaaS Services and is responsible for the use of the Platform and the Software; (iii) selects, loads and analyses its personal elements and contents to be loaded onto the Client Database in using the SaaS Services.
      • User” means jointly the User Admin and the Basic User/s.
      • WebSite Integration” means the additional SaaS Service the Client may use, subject to prior ad hoc selection, to integrate the Subscription Level selected and consisting in the possibility to integrate its website through the use of the Platform and the Software, specifically by means of Application Programming Interface (API) systems.
    2. The singular terms used herein shall refer also to the plural and vice versa.
    3. Closing of the Agreement, Term of the Agreement and Credentials

      1. Filling in the Order Form as well the request for the account registration shall be deemed as a contractual proposal having the purpose to formalize the request to activate the SaaS Services and, thus, to close the Agreement. Upon reception of the Order Form and of the request for the account registration, Artshell shall send to the Client an Account Activation email. The Agreement between Artshell and the Client will be completed solely when the User clicks the link received through the Account Activation email for the first authenticated access to the Platform.
      2. Upon or after the closing of the Agreement and the consequent full account activation, the User Admin may register the names and email addresses of the Basic Users underlying its profile. Once the User Admin has registered and, thus, authorised, the Basic Users, an email will be sent to the Basic Users containing the link and the temporary password for the first authenticated access to the Platform and the Software; during such first access, the Basic User shall modify the temporary password received and set the Basic Credentials for its account.
      3. The Fee (as defined hereinafter) will be charged in compliance with Article 5 and, in any case, only after the Users have selected all the three flags contained in the Order Form, none excluded, thus expressing their full acceptance of the terms and conditions of the Agreement and completing the stipulation of the Agreement pursuant to this Article 3. The Client may cancel and/or modify the request to close the Agreement before clicking the activation link contained in the Account Activation email. In any case, without prejudice to the right of withdrawal on the terms and under the conditions envisaged in Article 13 hereinbelow.
      4. Through the Network SaaS Service it is possible to share some Platform functions (i.e. Chatting and Events) also with subjects not registered with Artshell and of whom the User has entered the email address in the “contacts” section of its Artshell profile. In that case, the link is sent to the contact to register to the Platform for the purpose of displaying and interacting with the contents shared with the same contact through the Network service and/or registering at and attending an Event. After receiving the Platform registration link, the person concerned may decide to register at Artshell, pursuant to this Article 3, by choosing a paid Subscription Level or register free of charge and use the SaaS Services for a limited period of time by the “FREE” version. Should the person concerned select the “FREE” version, no fee shall be charged and said person may use the SaaS Services free of charge until expiration of the trial period. At the end of such period, should the person concerned intend to stipulate the Agreement with Artshell, this person shall pay the Fee in accordance with Article 5 below and in proportion to the Subscription Level selected or, otherwise, the person concerned may continue to use free of charge only the Network, Chatting and Events services (within the limits of use of the free plan and as better specified for each function). In the latter case, Databases will be stored by Artshell for 24 months after the expiration of the trial period of the “FREE” version.
      5. The Agreement shall be in force starting from the Effective Date for the entire Term, only with the exception of the case in which the Client has chosen the Recurring Payment method, without any tacit or automatic renewal.
      6. Subject to the above with regard to subscription with Recurrent Payment and concurrent automatic renewal of the Agreement and of the Licenses, at the expiration of the Agreement Term, the Client’s Credentials will be disabled and the Agreement shall be deemed terminated. The Client who intends to renew its – or any different – Subscription Level and access the Platform again, shall fill in again the Order Form by selecting the Subscription Level and the relevant SaaS Services that the Client deems more appropriate. In the event that, after using the “FREE” Subscription Level, the Client selects a paid Subscription Level, it will also be necessary to enter the data relating to the Client’s credit card or to select a payment by bank transfer. It is agreed that, in any case, the Client shall not benefit from the “FREE” Subscription Level more than once.
      7. Subject to what is established in the foregoing Paragraph 3.6, after the expiration, termination of, or withdrawal from, the Agreement or the License for any reason whatsoever, Artshell may deactivate the account, but the Users (and, therefore, the Client) may continue to access the Platform with their own Credentials, until the natural expiry of the relevant Subscription Level, and this in order to allow the Users (and, consequently, the Client) to complete the activities of individual download and recovery of what is contained in the Client Database.
    4. Purpose of the Agreement and Client’s limitations

      1. Artshell hereby:
        1. undertakes to provide the Client with the SaaS Services in compliance with the applicable service standards, subject to prior authenticated access of the latter to the Platform through entry of Credentials by Client; and, consequently,
        2. grants the Client a license for the use of the Software – configured according to the Subscription Level requested by the Client in the Order Form – that is non-exclusive, non-sublicensable and non-transferable to third parties, as well as of a term equal to the Term of the Agreement (the “License”); and
        3. expressly agrees – and the Client-Organizer acknowledges – that, where applicable and subject to any prior written agreement, the use of the Exhibition Area Service is subject to the following conditions: (a) access to digital exhibition areas is possible subject to prior acceptance by Users of the Terms and Conditions and of the Privacy Notice regarding the processing of the Client-Organizer’s personal data (when the latter has prepared the relevant documents and requests the express acceptance thereof by the User); (b) such documentation shall not be in conflict with this Agreement in any way whatsoever; (c) Artshell will provide (for example, making it available for downloading) the data relating to the Users who accessed the Clients-Organizers by accepting the contractual and privacy documentation of the Clients-Organizers, who shall process it in their capacity as autonomous data controllers in accordance with the provisions contemplated by their privacy notice; and (d) Artshell shall not and shall never be held liable for the contents of the Clients-Organizers’ contractual and privacy documentation or for the conduct (including the processing of personal data) and/or default of the Clients-Organizers.
        4. undertakes to make any reasonable effort in order to ensure maximum availability and smooth operation of the SaaS Services through the Platform and the Software.
      2. The Parties hereby acknowledge and agree that:
        1. the Software will be used only by the User, subject to prior authenticated access to the Platform by entering the Credentials;
        2. each User is responsible for maintaining the confidentiality and the security of the Credentials, which shall not be sent or disclosed, not even partially, to any subject other than the Users (including Client’s employees, collaborators, contract workers);
        3. the Client shall notify Artshell of any breach of the security of the Users’ accounts and/or of loss of Credentials, as soon as the Client becomes aware of any such breach and/or loss.
        4. the Client shall not, directly or indirectly (for example, through the activity of third parties or of the same Users): (a) bypass or try to bypass the technical protection measures or the technical restrictions applied to the Software and/or to the Platform for the purpose of identifying any code and/or algorithm whatsoever (by way of example without limitations, any source code and object code); (b) analyse, decrypt, decompile, disassemble and/or reverse engineer the Software and/or the Platform or try to put in place said activities; (c) alter, modify and/or process in any whatsoever the Software and/or the Platform; and (d) retrieve, copy, duplicate, retain and/or collect, directly or indirectly, manually or through the use of specific software, any data, information, code and/or algorithm of any kind whatsoever, used by or to operate the Platform or the Software and/or loaded and contained into the Client Database (so-called data scraping).
        5. the Client shall not remove and/or try to remove the elements protected by copyright, trademarks and/or other distinctive signs of Artshell or of the latter’s suppliers exhibited in any way whatsoever in the Software and/or Platform interface;
        6. the Client and, consequently, each User, shall not use any SaaS Services, access the Platform or use the Software in any way that may allow the duplication, creation of derivative works or elaborations or the distribution to third parties of material covered by Artshell Intellectual Property Rights.
        7. Without prejudice to the confidentiality obligations pursuant to the following Article 12, the Client shall adopt physical, legal, organizational and technical measures suitable and appropriate to prevent any third party from carrying out the activities as per the foregoing points (iv) to (vi).
      3. The Client acknowledges and agrees that:  
        1. any improper use of the Software, the Platform and the SaaS Services or, in any case, other than the one allowed pursuant hereto is prohibited; and 
        2. the Agreement and/or any of its provisions shall not be interpreted in any case to attribute to the Client any explicit or implicit right of any kind whatsoever to the Software and/or the Platform, other than, and additional to, those granted by virtue of the License and the Agreement.
    5. Fee

      1. For the granting of the License, the performance of the Maintenance Services and the delivery of the SaaS Services, the Client shall pay Artshell the fee specified in the Order Form based on the Subscription Level requested by the Client (the “Fee”).
      2. The Fee may be paid to Artshell according to the following payment terms, as better specified in the Order Form:
        1. all at once on annual basis if the Client choosed the Recurring Payment option, by selecting the relevant method in filling in the Order Form;
        2. if the Client has not selected the Recurring Payment:
          1. a. all at once, one-off, on annual basis; or 
          2. b. by monthly instalments of the same value. 
      3. The Fee shall be paid by the Client to Artshell:
        1. against submission of regular invoice or payment receipt by Artshell, sent to the Client by email to the User Admin address;
        2. within 5 (five) calendar days from the date of invoice or payment receipt; and
        3. by the means of payments specified and usable through the Platform.
      4. In case of renewal of the Agreement and the License pursuant to Article 13 hereinbelow, the Client shall pay again the fee corresponding to its Subscription Level on the terms and conditions as per the foregoing paragraphs 5.1 and 5.2.
    6. Maintenance Services and Updates

      1. Artshell undertakes for the entire Term of the Agreement to provide the Client with Maintenance Services for the purpose of guaranteeing the smooth and ideal functionality of the Platform Software.
      2. Should the Client identify any Software or Platform irregularity or failure in using the SaaS Services, the Client shall promptly and exhaustively inform Artshell by email or by phone (as much as possible in relation to the Subscription Level) at the addresses or numbers specified on the Artshell website, so as to allow the latter to intervene by providing the Maintenance Services.
      3. Without prejudice to Client-Consumer rights, the Client hereby authorises Artshell to make use of third party subcontractors for the provision of the Maintenance Services regulated under this Article 6.
      4. In the event that Artshell, at its full discretion, develops any update or modification to the Platform, the Software and/or the SaaS Services (the “Updates”), Artshell shall provide the Client with said Updates at no additional charge, which the Client shall be bound to accept and perform. The Parties hereby agree as from now that the Updates are subject to the Agreement provisions.
    7. Suspension/interruption of SaaS Services

      1. Without prejudice to the application of the following Article 13, Artshell, at its sole discretion – and the exercise of such right shall not be alleged as default or breach of the Agreement – reserves the right to suspend/interrupt the provision of the SaaS Services through the Platform and the Software, even without any prior notice, in the event that:
        1. Artshell deems appropriate, at its sole discretion, to make any technical intervention aimed at improving the Software and/or the Platform. In that case, Artshell shall inform the Client through a banner in the home page about the interruption of the SaaS Services, also specifying the restoration time and methods, as well as the contacts the Client may refer to at any time to obtain assistance and more detailed news relatively to the suspension/interruption of the SaaS Services;
        2. there are reasonable grounds to believe that the Client shall not perform the obligations envisaged under Article 5 and 11 of the Agreement;
        3. there are reasonable grounds to believe that the Platform and/or the Software – and as a result, the SaaS Services – have been used and enjoyed by third parties not authorised by Artshell;
        4. without prejudice to other provisions of the Agreement, any events of Force Majeure (as defined hereinafter) or circumstances that, at Artshell’s sole discretion, impose the performance of emergency interventions or interventions to solve any problem of security, danger for the entire network and/or for people or property; in that case, the SaaS Services shall be restored only when Artshell, at its discretion, has assessed that the causes determining the suspension/interruption of any such SaaS Service have been actually removed or cleared;
        5. the suspension/interruption is requested by the Judicial or Administrative Authority.
      2. Without prejudice to every and any other actions of Artshell aimed at obtaining damage compensation in the cases of suspension/interruption of the SaaS Service attributable to the Client.
      3. It is agreed between the Parties that, during the suspension/interruption of the SaaS Services, the Client shall not have access to the Client Database.
    8. Force Majeure

      1. For the purposes of this Agreement and of the License, “force majeure” means all circumstances beyond Artshell’s control that, temporarily or definitely, prevent the performance of the obligations envisaged hereunder and under the License; such as, by way of example without limitation, wars or risk of war, riots, social unrest, total or partial, strikes, lack of raw materials, delays in the supply of products and services (also digital) and/or suppliers’ services, unexpected circumstances within Artshell and/or of its suppliers (including so-called data breach), transportation difficulties, difficulties or delays in the transmission of data through the network, restrictions of any kind to imports and/or exports, frost, fire, epidemics, natural disasters and any other impediment whatsoever that makes fully or partially impossible the operation of the Platform and/or of the Software and the delivery of the SaaS Services (“Force Majeure”).  
      2. 8.2. In the event that it cannot perform its obligations hereunder due to events of Force Majeure, Artshell shall have the right – at its discretion – :
        1. to suspend/interrupt the delivery of the SaaS Services through the Platform and the Software pursuant to the foregoing Section 7.1(iv); or
        2. to withdraw from the contract with the Client, fully or in part, without any liability ascribable to Artshell therefor.
      3. Should the suspension and/or interruption of the SaaS Services and of the operation of the Platform and the Software due to Force Majeure (or due the other cases as per the foregoing Section 7.1(iv)) continue for over 90 consecutive days, the Client shall have the right to withdraw herefrom by registered letter with return mail or company certified email, and no penalty and/or indemnity shall be attributed to the Client therefor for any reason.
    9. Representations, warranties and limitations of liability

      1. Each Party represents and warrants that it has full authority, powers and capacity to close this Agreement and perform the relevant obligations.
      2. Artshell represents and warrants:
        1. that the use by the Client of the SaaS Services and, therefore, the use of the Platform and Software in compliance with the terms and conditions of the Agreement and of the License do not violate any law provisions and rights of third parties; and
        2. that the Platform and the Software do not contain any virus, computer program blocks or other disabling IT systems.
      3. The Client:
        1. represents and warrants that it verified, and it satisfies, the technical requirements to be fulfilled for the operation of the Software and the Platform described in Annex 1, and, consequently, acknowledges and agrees that no liability shall be ascribed to Artshell in the cases of suspension, interruption of SaaS Services or irregularity or failure of the Software and/or the Platform due to the non-fulfilment of said requirements by the Client;
        2. represents and warrants that it has all the knowledge and capabilities required for a proper use, administration and management of the Platform, the Software and the SaaS Service;
        3. represents and warrants that (a) it holds every right required and it has every title necessary to load, present, integrate with documentation and certifications, share the Photos of the Works and, more generally, all that is part of the Client Database; (b) that all that is part of the Client Database does not infringe any third party’s right (expressly including copyrights and/or copyright-related rights);
        4. represents and warrants that it has the title also in relation to the loading and processing, on and through the Platform, of personal and contact data of the data subjects being part of its mailing lists and to whom the Network (including its Following function), Chatting and Newslettering service is targeted (if selected). The Client also represents and warrants that it has obtained such personal and contact data in accordance with the currently applicable legislation on personal data protection, subject to prior express and free consent by the data subject or based on any other suitable legal basis pursuant to article 6, paragraph 1, of the GDPR and that it processes it in its capacity as data controller pursuant to article 24 and the following of the GDPR.
        5. by virtue of what has been represented and warranted pursuant to the foregoing paragraphs 9.3(iii) and 9.3(iv), expressly undertakes to hold harmless Artshell from any direct and/or indirect damage that may caused to Artshell due to the loading (and use) of the Client Database on the Platform, as well as any liability for any direct and/or indirect damage that may be caused to Artshell by any breach by the Client of the applicable legislation on personal data protection in relation to contact and personal data loaded by the Client, entered, saved and processed on the Platform through the Network (including its Following function), Chatting and Newslettering (if selected) services;
        6. acknowledges and accepts that the SaaS Services are provided “as is” and characterised by constantly evolving technologies. Therefore, the technical features of the Platform and the Software may be modified whenever it is required by technology evolution and by supply and/or organization needs;
        7. acknowledges that the internet network – required for the use of the Platform and, consequently, for the use of the Software and utilization of SaaS Services – is not controlled by Artshell and that, for the peculiar structure of the aforesaid network, no public or private entity and not even Artshell is capable to guarantee and monitor the services and functionality of the network branches and to monitor the contents of the information sent through the same. Consequently, no related liability shall be ascribed to Artshell;
        8. represents and warrants that the Client and, consequently, the Users shall be the only and exclusive users of the Platform and the Software, as well as, users of the SaaS Services;
        9. acknowledges and agrees that (a) Artshell does not make any specific backup of the Client Database, with the only exception of the system back-ups that the same Artshell, due to its caution and in any case at its sole discretion, periodically makes for the purposes of any restoration of the SaaS Services; and, therefore (b) it is the only entity responsible for the management, security and saving of the Client Database, as well as for the performance of any activity deemed useful or necessary to ensure its integrity, confidentiality and retention;
        10. also acknowledges and agrees that at the end of the Storage Period, and after the expiration of, withdrawal from or termination for any reason whatsoever of the Agreement and the License, Artshell shall retain the Client Database for the following 2 (two) years, to carry out activities aimed at improving the Platform and its functions, as well as to guarantee to the Client the maintenance of the Client Database in case of any subsequent stipulation of the Agreement and consequent registration on the Platform within such two-year term. Therefore, the Client undertakes as from now to promptly obtain before the final elimination of the Client Database a copy thereof, by using the SaaS Services for the individual export and download of the Photos of the Works, or requesting Artshell further proper modalities for the full export and download of the Client Database, which may be subject to costs due to the need by Artshell to carry out any specialized back-end activities. In any case, in any event of end of the Storage Period, as well as of expiration of, withdrawal from or termination for any reason whatsoever of the Agreement and of the License, the Client exonerates Artshell, as from now, from any and every liabilitiy for any full or partial loss of or damage of the Client Database;
        11. represents and warrants that the data and information provided to Artshell in preparing the Order Form for the purpose of closing the Agreement are true, exact and such to allow its identification and the proper identification of its needs.
      4. Without prejudice to the Client-Consumer’s rights, Artshell does not issue any explicit or implicit representation and/or warranty that the Platform, the Software and/or the SaaS Services shall be suitable to meet the Client’s requirements and/or exempt from errors, failures and/or irregularities.
      5. Without prejudice to the events of death of, or damage to, the Client-Consumer, the Client acknowledges and agrees that in no case shall Artshell be liable for any damage that may be caused to the Client or to third parties by the use by the Client of the Platform, the Software and/or the by the use of the Saas Services, and by the results of the activities related to the management, archiving, classification, presentation and share of the Photos of the Works generated by the Software, for amounts exceeding the amount of the Fee paid to Artshell. In case of FREE Subscription Level, Artshell, to the maximum extent allowed by law, shall not be held liable for any damage that may be caused to the Client or third parties by the use by the Client of the Platform, the Software and/or by the use of the SaaS Services.
      6. Subject to any event of default or inexact performance of Artshell with regard to the Client-Consumer, in no case shall Artshell be liable to the Client for loss of profit or loss of opportunities, or for costs resulting from consequential damages.
    10. Intellectual Property Rights

      1. The Client shall use the Platform and the Software and use the Saas Services in full compliance with the intellectual property rights, of any kind whatsoever, owned by Artshell and third parties.
      2. The Client acknowledges and agrees that Artshell is and shall remain the sole and exclusive owner of the Platform and the Software and of any existing intellectual property right of any kind whatsoever thereto and/or relating thereto.
      3. In the event that the Client, in using the Platform, the Software and/or in using the SaaS Services, comes in contact with or becomes aware in any way whatsoever of source codes, object codes and/or algorithms for the operation of the Platform and/or the Software, with reference to the same, it shall fulfil the same confidentiality obligations set forth in Article 12 hereof, also after the expiration, termination of or withdrawal from the Agreement for any reason whatsoever.
      4. The Client undertakes not to dispute Artshell’s exclusive title ownership of the intellectual property rights to the Software and/or the Platform, and undertakes not to take any action that may affect or otherwise be prejudicial to Artshell’s title ownership of such intellectual property rights also in case of expiration, termination of or withdrawal from this Agreement for any reason whatsoever.
    11. Non-transferability and non-sublicensing

      1. The Client shall not transfer, fully or partially, without the prior written consent of Artshell: (i) the Agreement; (ii) the License; and/or (ii) the rights and/or credits deriving from the Agreement or the License.
      2. In any case, the Client shall not sub-license the License or otherwise allow any third party to use the Software or the SaaS Services.
    12. Confidentiality

      1. The Parties acknowledge the absolute confidentiality of the Confidential Information and undertake – and concurrently promise, pursuant to article 1381 of the Italian Civil Code, that such commitment shall be respected by any of their employees or collaborators – :
        1. not to notify, give access, disclose and/or provide to third parties, directly or indirectly, any Confidential Information;
        2. not to disclose, make available and/or use any of the Confidential Information for purposes other than those hereof;
        3. disclose the Confidential Information only to their employees and/or collaborators, exclusively as strictly necessary and following the stipulation of agreements including confidentiality obligations similar to those envisaged hereunder, being agreed, in any case, that each Party shall be responsible for the fulfilment of the confidentiality obligations of such subjects; and
        4. adopt all physical, legal, organizational and technical measures suitable to guarantee the protection and utmost confidentiality of the Confidential Information.
      2. Without prejudice to the above, the Parties may disclose the Confidential Information only with the prior written consent of the other Party and whenever this is requested by the law or by order of any Public Authority.
      3. The Parties shall be bound to comply with the confidentiality obligations set forth hereunder for the entire Term hereof and, similarly, after the expiration, termination of or withdrawal from this Agreement for any reason whatsoever.
      4. The Parties acknowledge and agree that the confidentiality obligations set forth hereunder shall not be extended to information:
        1. generally known to the public upon disclosure or that have not become known to the public due to or as a result of any fact, act or omission of the Party that received it;
        2. that have become known to the Party which received it without any confidentiality obligations, or in any case without any breach of the confidentiality obligations set forth hereunder; and
        3. the disclosure of which is mandatorily requested by law or regulations.
    13. Termination clause and right of withdrawal

      1. Subject to damage indemnification, Artshell shall have the right to immediately terminate this Agreement – and, consequently, the License – pursuant to Article 1456 of the Italian Civil Code, by registered letter with advice of receipt or company certified email, in case of breach by the Client of the obligations as per paragraphs and Articles 4.2, 4.3, 5, 9.3(iii), 9.5, 9.6, 10, 11 and 12.
      2. The foregoing shall affect the right of each Party – should the circumstances occur and if it is deemed appropriate – to undertake any and every action appropriate for the termination of this Agreement pursuant to Articles 1453 and 1454 of the Italian Civil Code.
      3. The Parties hereby acknowledge and agree that each Party may withdraw herefrom, at its sole discretion, by registered letter with advice of receipt or company certified email. Without prejudice to what is established by the foregoing article 9.3(x), the withdrawal from the Agreement shall entail the deactivation of the account and of the relevant Client’s Credentials by Artshell. In such case, the User (and, consequently, the Client) may continue to access the Platform in any case with its own Credentials, until the natural expiration of the selected Subscription Level, in order to allow the User and, consequently, the Client to perform the individual export and download activities for the retrieval of what has been loaded in the Client Database.
      4. The Parties acknowledge and agree that:
        1. in case of Artshell’s withdrawal from the Agreement (and, consequently, from the License) stipulated by the Client-Consumer, the payments made to Artshell pursuant to the foregoing Article 5 shall be still made limitedly to the services already performed until the date on which the withdrawal shall be effective; therefore, in such cases Artshell shall return to the Client-Consumer any residual amount for any service not yet performed;
        2. in any other case of withdrawal from or termination of the Agreement by the Parties, and, consequently, from and of the License, the services already performed and the payments made to Artshell shall be still be valid pursuant to the foregoing Article 5;
      5. In addition and without prejudice to the withdrawal as per the foregoing articles 13.3 and 13.4, the Client-Consumer may withdraw from the Agreement pursuant to article 52 of Italian Legislative Decree n. 206/2005 (so-called Consumer Code) within 14 days from the Effective Date at its sole discretion, by email, registered letter with advice of receipt or certified email. Only in this case, no cost shall be attributed to the Client-Consumer and Artshell shall return the amount paid by the Client as Fee.
    14. Amendments to contractual terms

      1. Artshell – for the purposes of technical, organizational and/or administrative-accounting improvements – reserves the right, at any time and at is sole discretion, to make any amendment to the Agreement and to the License terms as well as to impose new or additional terms or conditions about the use of the Platform, the Software and, consequently, the delivery of the SaaS Services.
      2. In those cases, Artshell shall notify to the Client the amendments to the Agreement and to the License terms by a prior written notice of 30 (thirty) days before their entry into force. In the event that such amendments are deemed unfavourable by the Client, without prejudice to the amounts already paid to Artshell as Fee, the same shall have the right to immediately withdraw from the Agreement by registered letter with advice of receipt or company certified email.
    15. Communications

      1. Subject to the addresses specified elsewhere herein, the Parties acknowledge and agree that their mutual communications and shipments contemplated or requested under this Agreement as well as all communications and shipments relating to this Agreement involving the Parties, shall be made in writing and sent to the following addresses:

        As to Artshell:

        Address:

        Via Giosuè Carducci 8, 20123 Milano

        Email:

        admin@artshell.eu

        Certified email:

        artshell@legalmail.it

        Attn:

        Artshell S.r.l

        As to Client:

        Address:

        Registered Office of the Client specified in the Order Form

        Email:

        Email address of the User Admin provided upon registration

        Certified email:

        Certified email address specified in the Order Form

        Attn:

        Person indicated as legal representative in the Order Form

    16. Personal data processing

      1. Each Party acknowledges that in the framework of the stipulation and performance of this Agreement, any information or data subject to protection pursuant to Italian Legislative Decree n. 196 and subsequent amendments and supplements of 30 June 2003 (the “Privacy Code”) as well as the Regulation (EU) 679/2016 (the “GDPR”) are and may be exchanged between the Parties – and retained by the Party which from time to time receives them to fulfil its organizational purposes related to the best management of its contractual relationship.
      2. With reference to such information and within the scope of the performance of this Agreement, the Parties undertake to comply with all laws concerning personal data processing, including the Privacy Code and the GDPR, as well as every decision adopted by any public personal data protection authority.
      3. With reference to the provision of some SaaS Services, by way of example without limitation, the Network service (including the Following and Visitors Book functions) and the Chatting and Newslettering services, Artshell will process the personal data owned by the Client. Therefore, the Client by separate deed of appointment attached as Annex 5 to this Agreement, of which it is an integral part, appoints Artshell as its Data Processor in relation to personal data collected and processed in performing this Agreement, assigning to Artshell, in its capacity as data processor, the tasks and responsibilities envisaged by article 29 of the Privacy code and by article 28 of the GDPR. In performing this Agreement, Artshell shall fulfil all the obligations established by the deed of appointment of the Data Processor.
      4. The Parties hereby acknowledge and agree that the personal data of Users accessing the Exhibition Service Area of the Clients-Organizers subject to prior acceptance of the latter’s contractual and privacy documentation, shall be processed by the Parties as autonomous data controllers.
      5. In relation to the processing by Artshell of the data of the Client and, where applicable, of its employees, collaborators and subjects involved in the performance of the Agreement, Artshell provides information on the processing of personal data available here. The Client undertakes under its full and exclusive responsibility to provide said information to every employee and/or collaborator and/or any other subject involved in the performance of the Agreement and whose data may be notified to Artshell for the purpose of stipulating and performing this Agreement.
    17. Continuance in effect

      1. The Parties acknowledge and agree that this Article as well as the other Articles and Paragraphs indicated hereinafter shall continue to be valid and effective between the Parties even after the expiration, termination of or withdrawal from this Agreement and the License for any reason whatsoever: 1, 2, 3.4, 3.7, 9.5, 9.6, 10.2, 10.3, 10.4, 12 and 19.
      2. Subject to foregoing, the Parties also acknowledge and agree that all the provisions hereof that, for the purpose of giving full effect to their meaning, need to remain in force after the expiration or termination of the Agreement, shall remain in full force.
    18. Miscellaneous and final provisions

      1. The Parties acknowledge and agree that what is provided for hereunder corresponds to the entirety of their agreements, any other agreement not transposed herein being null.
      2. This Agreement cancels and replaces any other previous agreement between Artshell and the Client relating to the Platform, the Software and the SaaS Services and is the last and full expression of the agreements reached between the Parties on such subject-matter. No amendment, marginal note or clause added to the Agreement or the License shall be valid and effective between the Parties unless it is specifically and expressly approved in writing by both Parties. In case of special agreements with the Client, these shall be made in writing and shall be an addendum hereto.
      3. Any tolerance by any of the Parties of any conduct held by the other Party in breach of any of the provisions of this Agreement or of the terms of the License shall not be deemed as a waiver of the rights deriving from the breached provision or of the right to claim the proper fulfilment of all the provisions of this Agreement and of the License.
      4. The failed or late exercise of a right pertaining to a Party pursuant to this Agreement and/or to the License shall not be deemed as a waiver thereof.
      5. The ineffectiveness and/or invalidity, full or partial, of one or more terms and clauses of the Agreement and/or of the License shall not cause the invalidity of the other terms and clauses that shall be deemed fully valid and effective.
      6. This Agreement and the License are not and shall not be interpreted as a subordinate employment, company, agency, mandate or any other relationship of any kind between the Parties other than the one expressly envisaged in the same and shall not result in any association, joint venture or partnership, or any other interdependent relationship between the Parties, and in no case shall any of the Parties be held liable for the actions, representations or omissions made by the other Party. Each Party shall therefore maintain its own identity as autonomous contracting party, and undertakes not to stipulate any contract, agreement, give guarantees, make representations or constitute obligations, explicit or implicit, on behalf of the other Party.
    19. Applicable law and competent court

      1. The provisions contained herein are governed by the Italian Laws.
      2. Any dispute relating to the validity, effectiveness, interpretation and performance of this Agreement and/or of the License, or otherwise related to the Agreement and/or to the License, shall be submitted:
        1. if the Client is not a Consumer: to the Court of Milan, having exclusive jurisdiction, as expressly agreed between the Parties.
        2. if the Client is a Client-Consumer: to the Court of the city of residence or elected domicile of the Client-Consumer, having jurisdiction.

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