Terms & Conditions

General Terms and Conditions

This Master Services Agreement (hereinafter the “MSA”) is entered into between FiveFold Srl, with registered office in Circello (BN), Via Roma no. 109, tax code and VAT no. 01760360626, represented by its Legal Representative Stefano Pilla (hereinafter the “Company”), and ______________, with registered office at ______________, Via ______________, tax code and VAT no. ______________, represented by its legal representative pro tempore Mr./Ms. ______________ (hereinafter the “Client”), for the supply of Professional Services (hereinafter the “Services”), Hardware and/or Software (hereinafter the “Products”).

Whereas the Parties intend to enter into contracts for the sale and/or supply of goods and services, this MSA defines and governs the general terms of their future relationships and the related methods of interaction, leaving any further agreement to the individual engagements, which shall specify in detail:

a) the type of Service and/or Product requested;

b) the qualification and/or resource, if any, requested;

c) the duration of the engagement;

d) the place where the Services are to be performed;

e) the consideration due, etc.

This MSA shall not be construed as exclusive or binding in nature; therefore, the Client shall retain the unrestricted right to engage third parties in relation to the subject matter of this agreement, and the Company may refuse engagements that, in its sole discretion, are not considered advantageous and/or where it does not consider the conditions sufficient to guarantee its customary standards of quality and efficiency.

Article 1 – Professional Services (Services)

1.1 Professional Services means the services provided by the Company to the Client, as further detailed in the individual Statements of Work (“SOW”), Commercial Offer Letters (“LOD”) or quotations/estimates. By way of example and without limitation, such services may include: IT assistance and consulting activities, replacement of work resources, design, installation, configuration of systems, project management and any other service performed by the Company for the Client.

1.2 The Services provided by the Company shall be deemed purchased by the Client upon written acceptance of a SOW, LOD or quotation/estimate. The contents thereof may not subsequently be amended or supplemented unless otherwise agreed by the Parties through the execution of a specific Change Request form. In the event that the Client withdraws from a purchased Service, the full agreed consideration shall remain due, or alternatively the consideration relating to the project phase then in progress.

1.3 The Services provided by the Company may be performed using internal personnel or external consultants and/or subcontractors, who shall be deemed expressly authorised by the Client from the outset. Where necessary, the Company shall provide suitably qualified technical personnel for the performance of the Service, while retaining the right to replace such personnel during the engagement according to its business requirements.

1.4 Unless otherwise provided, the Services supplied by the Company shall be performed remotely. The Client shall therefore allow remote access to the appointed technicians and provide any credentials required for that purpose.

Article 2 – Hardware and Software (Products)

2.1 Hardware and/or Software means the products supplied by the Company to the Client, as further detailed in the relevant Sales Proposals (the “Proposals”). By way of example and without limitation, such Products may include routers, switches, servers, computers and any other product supplied by the Company to the Client.

2.2 Products shall be deemed purchased by the Client when: (a) formal acceptance of the Proposal sent by the Company is received; (b) the Company receives and accepts a purchase proposal submitted by the Client; or (c) the Client accepts the Products shipped by the Company to the address specified in the Proposal.

2.3 Unless otherwise provided in the Proposal, the Product shall be delivered to the Client electronically. Whether delivered electronically or in hard-copy form, the Product shall in any event be deemed delivered upon dispatch, and all risks relating to shipment and/or transport, as well as all related costs, shall remain with the Client.

2.4 Hardware may be returned in the following cases: (a) the Hardware is damaged upon delivery and the defect is reported within 8 days of delivery; (b) the Hardware becomes defective within the warranty period and the defect is reported within 8 days of discovery; or (c) the Hardware does not conform to the specifications set out in the Proposal and replacement is requested within 8 days of delivery.

2.5 Software may not be returned. In the event of verified defects and/or malfunctions in the Software, the Company shall not issue refunds but shall, where applicable, rework the Software or, alternatively, grant the Client a credit of an equivalent amount to be used against future orders.

2.6 Until physical delivery of the Product, the Company shall be entitled to cancel the Proposals even where they have already been accepted.

2.7 Products purchased under leasing arrangements shall be subject to the terms of this MSA in addition to those set out in contractual arrangements with third parties, which must be approved in advance by the Client. The Client shall provide the Company with any documentation required for this purpose.

Article 3 – Warranties and Liability

3.1 The Company warrants that: (a) the Services provided to the Client shall be performed in accordance with the SOWs and/or LODs and/or quotations/estimates previously executed between the Parties, and the Products in accordance with the Proposals; (b) the Services shall be performed with the utmost professional care, in accordance with the highest technical and security standards and in a workmanlike manner, carrying out all activities necessary for their proper and timely performance; (c) the Services shall be performed by qualified technical personnel of the Company or by its consultants and/or subcontractors; (d) no proprietary rights of the Client or third parties shall be infringed; and (e) unless otherwise provided, the Company shall be responsible for procuring the machinery, software and equipment required for the proper performance of the Services, while complying with high standards of quality and security.

3.2 The Client shall report any deficiencies in the Services in writing within eight (8) days of the relevant event or completion of the Service. The Client may request that the Service be repeated and, where the Company is unable to perform it in a workmanlike manner, may request a credit of an equivalent amount to be used against future orders.

3.3 The Company shall not be liable for defects, malfunctions and/or deterioration affecting Products manufactured by third parties. In such cases, any warranty required by law shall be provided solely by the manufacturer.

3.4 The Client may request insurance for shipment of the Product, at its own expense. Failing such a request, all risks relating to shipment shall remain solely with the Client.

3.5 The Client warrants that: (a) execution of this Agreement and of future SOWs, LODs and/or quotations/estimates does not breach any agreement entered into with third parties and does not violate any law and/or third-party rights; (b) the Services and/or Products supplied shall be used in full compliance with applicable national and international laws; (c) its personnel shall be deemed authorised from the outset to sign future SOWs, LODs and/or quotations/estimates for acceptance; and (d) it shall provide all cooperation required for successful performance of the Service and, in a timely manner, any information and/or clarification that may be required.

3.6 The Client undertakes to provide the cooperation required for successful performance of the Service and, in a timely manner, any information and/or clarification that may be required. In the event of delays and/or postponements of scheduled activities attributable to the Client, the Company shall be released from compliance with the agreed timing and costs.

3.7 All technical specifications, materials, documentation, know-how, development processes, licences and other intellectual property rights shall remain the exclusive property of the party granting their use and may not be used except for the proper performance of the Service.

3.8 The Company undertakes to indemnify and hold harmless the Client from any claim, action, expense, including legal expenses, or damage arising from a breach of laws or regulations, as well as from any claim brought directly or indirectly by third parties for damage, including damage to persons or property, resulting from failure to perform or incorrect performance of the commissioned Services.

3.9 Each Party mutually undertakes to indemnify and hold the other harmless from any cost, damage or liability arising from disputes that may arise with its own personnel engaged in connection with the Services, whether with social security and/or welfare bodies or any other authority, concerning matters relating to, connected with or otherwise arising from the employment relationship between that Party and its personnel, workplace injuries or damages suffered in any way by such personnel, as well as any damage caused by such personnel to property or persons, including third parties, even in cases of wilful misconduct or gross negligence.

Article 4 – Invoicing and Payments

4.1 Unless otherwise provided in the SOWs and/or LODs and/or quotations/estimates, for Fixed-Price Services the Company shall issue an invoice for the full agreed amount upon completion of the Service, and for Time & Materials Services on a monthly basis according to the amount of work performed. In both cases, the invoiced amount shall be paid by the Client within the following 30 (thirty) days from the invoice date.

4.2 Unless otherwise provided in the Proposal, the Company shall issue an invoice for the full agreed amount upon shipment of the Product, and the relevant amount shall be paid by the Client within the following 30 (thirty) days from the invoice date.

4.3 All out-of-pocket expenses required for performance of the engagement, including shipping and/or travel expenses, even if not approved in advance, shall remain exclusively payable by the Client and shall be paid in advance.

4.4 Unless otherwise provided, all costs shall be expressed in Euro and shall be deemed exclusive of VAT and any statutory charges, unless the Client provides the Company with appropriate evidence of exemption before the relevant invoice is issued.

4.5 In the event of late payment, without prejudice to any greater damages, default interest pursuant to Italian Legislative Decree no. 231/2002 shall accrue from the day following the relevant due date. Five (5) days after the due date, the Company shall also be entitled to suspend any Services in progress without prior notice.

Article 5 – Confidentiality and Non-Competition

5.1 Each Party, to the extent applicable to it, acknowledges that by virtue of this Agreement it may gain access to confidential, proprietary and/or third-party information and undertakes, and shall require its personnel, to comply with all conditions set out in the attached Confidentiality Agreement. In addition, the Parties generally undertake: (a) not to disclose to third parties, whether in writing, orally or otherwise, any confidential information learned in the performance of the Services without the prior written authorisation of the other Party; (b) not to use, in whole or in part, any confidential information for purposes other than performance of the Services; and (c) to adopt appropriate measures to safeguard confidential information. In this respect, the Parties undertake to grant access to confidential information only to personnel directly involved in performance of the Service and to require such personnel to enter into a confidentiality agreement substantially equivalent to the provisions of this Agreement.

5.2 Confidential information means all information comprising industrial and/or intellectual property rights, any data, knowledge, invention, patentable or non-patentable discovery and, in general, any information of a technical, economic, commercial or administrative nature marked “confidential” or which by its nature should reasonably be regarded as confidential. All confidential information shall remain the exclusive property of the Party owning it. Confidential information, including all copies thereof, shall be returned to the other Party or destroyed upon request and, in any event, upon termination of this Agreement.

5.3 Neither Party shall have any obligation in relation to confidential information where such information: a) is already in that Party’s possession without any obligation of confidentiality; b) is or becomes publicly known without any wrongful act by either Party; c) is lawfully received from third parties without restrictions and without breach of any confidentiality obligation; d) is independently developed without use of confidential information; or e) must be disclosed pursuant to a court order or as required by any governmental authority having jurisdiction over that Party.

5.4 This confidentiality obligation shall remain in force after termination of this Agreement.

5.5 The Parties acknowledge that breach of their confidentiality obligations and warranties may cause damage and that the defaulting party shall therefore be liable for the resulting damages.

5.6 Without prior written consent, for the entire duration of this Agreement and for two (2) years following its termination, the Client may not establish, directly or indirectly, commercial, employment and/or consulting relationships with other clients of the Company or, in any event, with third parties with whom it came into contact in connection with activities relating to this Agreement.

5.7 For the same period, the Client undertakes not to establish employment or collaborative relationships with employees of the Company or with its consultants with whom it came into contact in connection with activities relating to this Agreement. In the event of breach, the Client shall pay a contractual penalty equal to twice the last annual gross remuneration paid by the Company to the resource hired away, without prejudice to the right to recover any greater damages.

Article 6 – Term of the Agreement

6.1 This Agreement shall take effect as of today’s date and shall remain in force between the Parties for one year. At the end of the first year and, thereafter, upon each annual expiry, this Agreement shall automatically renew for successive periods of 12 months each, unless terminated by either Party by registered letter with return receipt sent at least 60 (sixty) days before the initial expiry date or any subsequent annual expiry date.

Article 7 – Governing Law and Jurisdiction

6.1 This Agreement shall be governed by Italian law.

6.2 Any dispute arising between the Parties in connection with the validity, interpretation or performance of this Agreement shall be subject to the exclusive jurisdiction of the Court of Rome.

Article 8 – Processing of Personal Data

7.1 By executing this Agreement, the Parties declare that they have reviewed the information notice referred to in Article 13 of Italian Legislative Decree no. 196/2003 and mutually give their express consent to the direct or indirect processing of personal, sensitive and judicial data for purposes connected with performance of the activities covered by this Agreement, in accordance with applicable law.

Article 9 – Communications

8.1 Any communication from one Party to the other relating to this Agreement shall be sent by certified electronic mail (PEC) or by registered letter with return receipt to the address stated above, and each Party undertakes to notify the other, using the same methods, of any change to such address.

Article 10 – Relationship Between the Parties

9.1 This Agreement shall not be construed as establishing a partnership between the Parties, a joint venture or a merger of their respective activities. Neither Party shall have the right to bind the other except as expressly provided in this Agreement, the SOWs and/or LODs and/or quotations/estimates.

9.2 Under no circumstances shall performance of the Services give rise to, or be construed as giving rise to, an employment relationship between the Company and the Client or its personnel. Each Party undertakes to indemnify and hold the other harmless against claims of any nature that may be asserted by its own employees by reason of their employment relationship.

Article 11 – Final Provisions

10.1. For any matter not expressly provided for in this Agreement, the provisions of the Italian Civil Code shall apply.

Rome, ______________ The Client _____________________________

Pursuant to and for the purposes of Articles 1341 and 1342 of the Italian Civil Code, the Client declares that it has carefully read and expressly accepts the following provisions of this Agreement: 1.2 (Methods for purchasing the Service), 1.3 (possibility of assignment and/or subcontracting), 1.4 (Methods of providing the Services), 2.2 (Methods for purchasing the Product), 2.3 (Methods of delivering the Product), 2.4 and 2.5 (Methods for returning the Product), 3.2 (Notification of defects), 4.5 (Late payments), 5.1 (Confidentiality obligation), 5.6 and 5.7 (Non-Competition obligation), 6 (Governing Law and Jurisdiction) and 10 (Relationship Between the Parties).