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REHABILITY SOFTWARE LICENSE AGREEMENT This Software License Agreement (the "Agreement") is made between Imaginary S.r.l., a company incorporated under Italian law with registered office in 20124 Milan (Italy), Piazza Caiazzo 3, fiscal code, VAT number and registration with Register of Enterprises of Milan no. 04258100967 ("Licensor"), and the entity or individual indicated in the relevant applicable Purchase Order ("Licensee"). Licensor and Licensee also individually a "Party" and together the "Parties". * * * The Parties hereby agree as follows. 1. DEFINITIONS "Confidential Information" has the meaning indicated in Section 13.1. "Effective Date" means the date specified in the Purchase Order or in the registration email in case the provided licence key is for demo use, and as form this Agreement shall be effective. "Force Majeure Event" has the meaning indicated in Section 17.3. "Italian Copyright Law" means law no. 633 of 22 April 1941. "License Fee" means the consideration to be paid by Licensee to Licensor for the grant of and the right to use the Product under this Agreement. "Licensor Compensated Party" has the meaning indicated in Section 15.1. "Purchase Order" means any purchase order which sets forth specific provisions relating to the license grant of the Product under this Agreement and including the details on the IT system and hardware requirements that are needed to download and use the Product. "Professional" means any physician, therapist or any other healthcare professional acting as employee or consultant of the Licensee or in any other manner under the authority or supervision of the Licensee, and supervising the use of the Product by the Users. "Product" means the software named "Rehability", and all its related modules and online platform, as described in the Product Handbook, as well as all any and all Updates of the Product as provided from time to time by Licensor to Licensee throughout the term of this Agreement. "Product Handbook" means the handbook containing the characteristics and features of the Products and the instructions necessary to use the Product, which will be made available to Licensor and Professionals after the registration of the Product. "Reverse Engineering" means any activity of reverse engineering, translation, disassembly, de-compilation, decryption or deconstruction (including any matter related to reverse engineering done by the so-called "dumping ROM or RAM or permanent storage", or "sniffing by cable or wireless link" or "black box") and includes any data, software (including interfaces, protocols and any other data included in or used with programs that may or may not be theoretically considered software codes), service, hardware or any other method or process designed to obtain or to convert any information, data or software from one form into another readable form. "Territory" means the territory or territories indicated in the Purchase Order. "Third Party Component" means the third parties’ components duly licensed to Licensor that may be part of the Product. "Third Party Software" means the third parties’ software duly licensed to Licensor that may be part of the Product to Licensee providing it also with additional services. "Update" means any new version or release, partial or full, of the Product that may include new developments, amendments, modifications, configurations and/or corrections, or any other changes to the Product made by Licensor and made available to Licensee under this Agreement. "User" means any final user of the Product, using the Product under the supervision of one or more Professionals. 2. INTERPRETATION 2.1 The Annexes constitute an integral and essential part of this Agreement. 2.2 Without prejudice to Section 18.3, in case of any discrepancies between the provisions of the Agreement and one or more provisions contained in the annexes or documents referred to in the Agreement, the provisions of the Agreement shall override those contrasting of the annexes and documents. 2.3 Words denoting the singular include the plural, and vice versa. 3. LICENSE GRANT 3.1 Subject to the terms of this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable and non-sub-licensable license in the Territory to (i) use the Product for internal purposes and therefore to reproduce, install, upload, visualize, run, execute, transmit and store the Product and to carry out any other activity required in order to use the Product for internal purposes, as set forth under articles 64-bis and 64-ter of the Italian Copyright Law; (ii) enable the Professionals and the Users to have access to and use the Product. 3.2 Licensee is entitled to create one back-up copy of the Product as set forth under article 64-ter of the Italian Copyright Law. 3.3 On all copies and reproductions of the Product, Licensee will include all trademark, copyright, confidentiality and other notices and restrictions included by Licensor with the Product or any media and shall include such other notices as Licensor may reasonably request from time to time. Unless otherwise agreed in writing with Licensor, Licensee shall not alter, remove or conceal names, marks or countersigns attached to or associated with the Product, the pertinent documentation and anything else covered by this Agreement. 4. TERM 4.1 The Product is licensed for a period of 12 months starting from the Effective Date. 4.2 The automatic or tacit renewal or extension of this Agreement is expressly excluded. 5. USE OF THE PRODUCT BY LICENSEE 5.1 The Licensee is directly and indirectly responsible for any activity performed by the Licensee, the Professionals and the Users through the use of the Product, and hereby guarantees that: (i) the use of the Product and its components by the Licensee, the Professionals and the Users will be fully and exclusively in accordance with the provisions of this Agreement; (ii) all information provided to Licensor under this Agreement is true, accurate, updated and complete; (iii) Licensee shall not intentionally use or allow third parties – including but not limited to the Professionals or the Users - to use the Product or any of its component, alone or in connection with any other software or information, in such a way to - according to the reasonable judgment of Licensor – interfere with, have a detrimental influence on or damage any other software, system, network or data used in any way by any third party, including Licensor, its distributors or their Licensees, products or services; the Licensee shall take all reasonable precautions to prevent the circumstances referred to in this clause and, in any case, shall immediately stop these activities upon receipt of proper notification by Licensor; (iv) Licensee has read and understood the Product Handbook and a copy of the Product Handbook shall be provided to Professionals and Users; (v) the Users shall be given access to the Product only and exclusively under the supervision of a Professional; (vi) Licensee, the Professionals and the Users - through the use of the Product and any of its component - shall not send harassing, abusive, libellous, unlawful or deceptive messages or information or any other message in breach of the applicable law; (vii) Licensee, the Professionals and the Users shall not use the Product or any of its component with the purpose of committing or attempting to commit a crime or facilitating the commission of any crime or any other illegal or harmful act, including any violation of privacy, or any other violation, infringement or misappropriation of any intellectual property right or other rights of any third party (including, for example, and not exhaustively, copying and sharing third party contents with respect to which the Licensee, Professionals and/or Users shall not have the right to copy and share, and including the case of illegal force of protection and intellectual property rights management systems); (viii) the Licensee, Professionals and Users shall cooperate with Licensor and provide it with adequate information, required in support of the activities of Licensor, to verify and determine whether there shall be violations of this Agreement; this while also letting Licensor have access, for the required inspections, to the rooms and computers where the Product is used or has been used. 5.2 Licensee shall make sure and procure that all settings of the Product, for its use by the Users, are made exclusively by the Professionals. Licensee shall not allow in any manner the User to perform any settings of the Products, and shall at all the times make sure that Users are not given access to the settings platform of the Product, and that said platform is accessed only by the Professionals. 5.3 The Licensee understands and accepts that the Product is not a medical device and that the Product is intended only for recreational and/or leisure use, even though it can be used by the Users also to practice their neuro-motor and cognitive functions also in support of a physiotherapeutic treatment. 5.4 The Licensee authorises Licensor to: (a) cooperate with the competent authorities empowered to enforce the law in case of investigating activity aimed to verify suspected acts of criminal law violation; (b) collaborate with third parties who are engaged in investigating acts aimed to verify violations of this Agreement; and (c) collaborate with system administrators at internet service providers or with network or informatics services provider in order to give full effect to this Agreement. 6. UPDATES 6.1 Upgrades may be downloaded and installed automatically by the Product. If such update cannot be installed automatically by the Product itself, or, in any case, at the discretion of Licensor, any such Updates will be provided in electronic form directly from Licensor to the Licensee in a manner freely chosen by Licensor. 6.2 By signing this Agreement, Licensee agrees to receive, and also undertakes to install, any and all Updates. 6.3 Licensee’s failure to install any Updates provided by Licensor shall determine the automatic and immediate expiration of the Product’s warranty provided hereunder. 7. THIRD PARTY SOFTWARE AND COMPONENTS 7.1 The Product may include Third Party Components and/or Third Party Software. The use of Third Party Software and/or Third Party Components (including any related update or upgrade) may be subject to additional or separate terms and conditions of Licensor. These separate or additional terms or conditions, if necessary, shall be provided in a text file attached to the Product or, in case of Third Party Software, shall be provided during the phase of handling or first time installation of the Third Party Software. 7.2 The Third Party Software is offered by Licensor to the Licensee at no additional cost. Licensee expressly acknowledges and accepts that any Third Party Software: (a) is provided only for the Licensee’s convenience; (b) unless it is accompanied by a separate license agreement, it is subject to the terms and conditions of this Agreement. If the Licensee wants to acquire Third Party Software in accordance with other terms and conditions, it then shall obtain a license of said the Third Party Software directly from the relevant rights owners or authorised dealers. 8. IT SYSTEM AND HARDWARE REQUIREMENTS 8.1 The Licensee hereby acknowledges and accepts that: (i) the IT system on which the Product may be installed and run shall meet the minimum requirements indicated in the Product Handbook; and (ii) the Product can be used only if the IT system of Licensee is provided with the specific additional hardware indicated in the Purchase Order. 8.2 The Licensee hereby acknowledges and accepts that the possession of the minimum requirements indicated in the Product Handbook may not grant optimal performances from the Product. 8.3 Unless otherwise expressly agreed in writing between the Parties, Licensor shall have no responsibility for the selection, implementation, interoperability and operation of any and each third party equipment, software and hardware (including, without limitation, Internet connectivity) used by the Licensee, the Professionals and the Users in connection with, or for, the Product. 9. TECHNICAL ASSISTANCE 9.1 The Licensor shall provide to Licensor technical assistance in accordance with the terms and modalities indicated in the Purchase Order. 10. INTELLECTUAL PROPERTY RIGHTS 10.1 Subject to the provisions set forth under the Purchase Order, the Product is provided for licensed use only in its executable form, and no provision of this Agreement shall be interpreted as a supply and/or sale of the Product in its source code form. 10.2 Without prejudice to the rules mandatorily provided under the applicable law, and in particular to those provided in the Italian Copyright Law, Licensee undertakes not to perform on the Product any Reverse Engineering activity, and shall not attempt to engage in any Reverse Engineering activities, nor allow, authorize or encourage any third party to do the same. 10.3 The Licensee acknowledges and accepts that all intellectual property rights on the Product are owned by Licensor or by any relevant third parties, worldwide, and hereby recognizes, accepts and explicitly states that under this Agreement it does not, and will not, acquire any property right or claim on the Product, or any part or component thereof, or any patent, copyright, trademark or other intellectual property right on the Product, or any part or component thereof. 10.4 The Licensee accepts to make any reasonable effort to prevent and protect the contents of the Product from disclosure or any unauthorized use. 10.5 Licensee shall promptly notify Licensor of any known or suspected breach of Licensor’s rights in and on the Product that may come to Licensee's attention. 10.6 Licensee acknowledges that any right in the Product other than, or in addition to, those granted to the Licensee under this Agreement are deemed to be reserved by Licensor and are not transferred or licensed to Licensee in any manner. 11. CONSENT TO THE COLLECTION AND PROCESSING OF PERSONAL DATA 11.1 With the submission to Licensor of personal data relating the Licensee itself, the Licensee shall consent to the collection, use, processing, communication and disclosure of personal information performed by Licensor and/or its related companies. 11.2 The Licensee guarantees also to have obtained all necessary consents under the applicable law for the processing of personal data related to Professionals, Licensee’s employees or any other individual acting under the supervision of the Licensee, and that, under those consents, Licensor and/or its affiliated companies shall perform the collection, use, processing, communication and disclosure of such data. These operations may include the collection, processing, use and disclosure of data regarding the Licensee and/or its Professionals, employees or any other individual acting under the supervision of the Licensee, and/or the provision of data within companies related to Licensor which are located in a country or territory inside or outside the European Economic Area, for: (i) internal use by Licensor or its related companies in order to (a) know and understand better the Licensee’s needs; (b) develop new services or enhance already existing ones or make new offers; (c) manage and develop the operations and business activities of Licensor; (ii) any purpose related to the supply and/or use by the Licensee of the Product and/or related products and/or services in respect of activities of billing, activation, technical assistance, deactivation; (iii) providing the Licensee with updates and upgrades, software updates and upgrades alerts, and Third Party Software, Third Party Content or Third Party Services and/or related products and/or related services; (iv) any purpose permitted or required by any applicable law; (v) any purpose as specified in the privacy policy of Licensor, which may be viewed on its website. 11.3 The collection, use, processing, communication and disclosure of personal data of the Licensee and/or Professionals, Licensee’s employees or any other individual acting under the supervision of the Licensee for the purposes mentioned above shall be performed in full compliance with the privacy policy of Licensor and laws applicable to personal data protection. 11.4 The Licensee acknowledges and agrees to inform all the subjects, whose personal information is provided by the Licensee to Licensor, that such subjects may exercise their right to access and correct their personal data in accordance with the applicable laws and regulations. 11.5 Licensee shall be the sole data controller with respect to Users’ Personal Data, and no User’s Personal Data shall be provided, disclosed, transferred or otherwise made available to Licensor in any manner Whatsoever. Licensee hereby represents and warrants that the data collected and processed in connection with the use of the Product by Users shall not identify, or be in any case suitable to identify, directly, indirectly or in any way whatsoever any User using the Product. 12. LICENSE FEE 12.1 Licensee shall pay the License Fee indicated in the Purchase Order. 12.2 The payment of the License Fee shall be made by Licensee in accordance with the terms and modalities indicated in the Purchase Order. 13. CONFIDENTIALITY 13.1 Each Party agrees that all information disclosed by the other Party in order to complete obligations under this Agreement shall be considered confidential information (the "Confidential Information"). The receiving Party shall not disclose any Confidential Information of the disclosing Party to third parties except under a written agreement no less restrictive than the terms of this Section and will treat the disclosing Party's Confidential Information with the same degree of care taken to protect its own similar Confidential Information but in no event with less than reasonable care. Each Party receiving Confidential Information further agrees to limit disclosure of such Confidential Information to those of its employees and contractors who have a need for such information pursuant to the rights and obligations permitted under this Agreement and who are bound under a written agreement to keep such information confidential. 13.2 Disclosure of Confidential Information shall not be precluded if such disclosure is: a) necessary to establish or exercise rights granted under this Agreement; or b) required by law or regulation or in response to a valid court or administrative order. 13.3 All Confidential Information together with all copies thereof which have been made by the receiving Party shall remain the property of the disclosing Party. 13.4 The provisions of this Section will remain valid and in force until each Confidential Information will become public for reasons other than the Parties’ breach of any of their confidentiality obligations provided herein. 13.5 This Section 13 shall survive the expiration or termination of this Agreement. 14. LIMITATION OF LIABILITY 14.1 To the maximum extent allowed under the applicable law: (i) Licensor’s aggregate liability vis-à-vis the Licensee, the Professionals, the Users and any other third party for the damages arising from Licensor’s breach of the provisions of this Agreement, shall be limited to an amount equal to the License Fee paid by the Licensee under this Agreement; (ii) Licensor shall not be liable towards Licensee, Users and/or Professionals for the damages arising from or in any case relating to the use of the Product by the Users. 14.2 Licensor and Licensee shall not be liable for any indirect, special, consequential, incidental, exemplary or punitive damage, even if Licensor or Licensee have been advised of the possibility of such damages. 14.3 Without limiting the generality of the foregoing, Licensor shall not be liable for any program or data created, transmitted or stored with the Product, and shall not be liable in relation to the costs of recovering or replacing such programs or data, as well as for any Licensee’s loss of data, loss of business profits or revenues, lost savings, business interruptions, systems downtime costs, inability to transmit or receive any data, problems with applications of the Third Party Software or Third Party Services used together with the Product or other components of the Product. 14.4 None of the provisions of this Agreement shall be meant to limit the liability of Licensor towards Licensee in case of: (i) gross negligence or wilful misconduct by Licensor, its employees or agents; or (ii) actions or intentional omissions by Licensor, its employees or agents. 14.5 Each Party shall be liable towards the other only with regard to the extent expressly provided in this Agreement and shall not be subject to any other obligation, duty or responsibility, both contractual and extra-contractual or otherwise. The limitations, exclusions and disclaimers contained herein: (i) shall apply regardless of the nature of the dispute or action or demand or claim brought by the Licensee, including, for example, and not limited to, actions for breach of contract claim, negligence, damage claim or any other action; and (ii) shall remain in force even in case of violations or critical violations or impossibility to execute the object of this Agreement or to activate the guarantees contained in it. 14.6 In the event that the Product is finally declared by a court having competent jurisdiction as infringing third parties’ intellectual property rights, Licensor shall, at its reasonable option, and a sole remedies available to Licensee in this case: (i) procure for Licensor the right to continue exploiting and using the Product; or (ii) replace or modify the Product in order to remove therefrom any instance of infringement. 14.7 This Section 14 shall survive the expiration or termination of this Agreement. 15. LICENSEE’S LIABILITY 15.1 The Licensee shall defend, refund, indemnify and hold harmless Licensor, the suppliers, assignees, affiliates, agents and transferees Licensor, and each of their directors, officers, employees and independent contractors of such parties (each of which is defined as "Licensor Compensated Party") from any claim, damage, loss or expense (including, for example, reasonable legal fees and costs) incurred by a Licensor Compensated Party arising from: (i) infringement of patents, copyrights, trademarks or other intellectual property rights or other proprietary rights arising from the use or combined use of any device, system or service in connection with the Product or any part of it; (ii) damages resulting from breach, by the Licensee, of any of the following Sections of this Agreement: Section 5; Section 10 and Section 13; (iii) any injury, or death or property damage arising from and/or related to negligent or improper use of the Product and/or any component of it by the Licensee, Professionals and/or Users. 16. WARRANTY LIMITATION 16.1 Licensor warrants that the Product will be free from malfunctioning for a period of three months from the date of delivery to Licensee. In the event of failure to conform to this warranty, as Licensor’s sole and exclusive obligation and Licensee’s sole remedy, Licensor shall replace the Product upon receipt of written notification from Licensee. In order to solve the technical problem, if an action by Licensor is needed, the time required for resolution shall, from time to time, be set and communicated by Licensor to the Licensee based on the type of problem involved. If it is not possible to resolve the problem, Licensor shall refund the Licensee with the price paid for the Product. The returned Product shall have an appropriate documentation proving the purchase (receipts, invoices, etc.). 16.2 The Product is licensed on an "as is" basis and is accepted by the Licensee as such. Except as expressly provided herein, and to the maximum extent allowed by the applicable law, Licensor makes or gives no warranty, condition or other term, either express or implied, relating to the Product, including, without limitation, any terms as to satisfactory quality or fitness for a particular purpose, irrespective of any previous course of dealings between the Parties or custom or usage of trade. Licensor does not warrant that the Product will be error-free, bug-free, virus-free, malware-free, will operate without interruption and/or will work in all combinations selected by Licensee. 16.3 The warranty shall not apply if the Product malfunction are due to: (i) any use of the Product in violation of Licensee’s obligations under this Agreement; (ii) any malfunction or other problems related to any hardware device (including malfunction due to defective third party set-top-box), network, software or communication systems used and/or owned by Licensee; (iii) any external cause which prevents the functioning of the Product, including all the electronics on which the Product is installed, such as, for example but not limited to, accidents, disasters, electricity supply interruption or voltage drop, fire, flood, lightning, rain or wind, improper repair or defects due to repair interventions performed by subjects not authorized by Licensor. 17. TERMINATION 17.1 This Agreement may be terminated at any time for the following reasons: (i) by Licensor, immediately through written notice to the Licensee, in case the Licensee fails to pay any amount under this Agreement or the Licensee fails to fulfil one or more of the obligations set forth under Sections 3, 5, 8 and 12 of this Agreement; (ii) if Licensor is prevented from providing the Product or part of the Product because of laws, regulations, orders or judgments issued by any kind of authorities. 17.2 Upon termination of the Agreement under this Section, regardless of the cause that lead to it: (a) the Licensee shall immediately stop using the Product and destroy and/or permanently delete all copies of the Product in possession or control of Licensee; (b) the Licensor shall have the right to withhold any payments received from the Licensee, without prejudice to the Licensor’s right to request compensation for any further damages. 17.3 Neither Party shall be considered in breach of this Agreement in case of delay or failure to perform its obligations due to any event which is not under its reasonable control (a "Force Majeure Event"), subject to the condition that it shall promptly communicate to the other Party the occurrence of a Force Majeure Event and it shall carry out all the reasonable efforts to reduce the delay or the negative consequences arising from the relevant breach. 18. MISCELLANEOUS PROVISIONS 18.1 Neither Party shall be deemed, by any act or omission, to have waived any of its rights or remedies under this Agreement unless such waiver is in writing and signed by an authorized representative of such Party. Such a waiver shall be limited specifically to the extent set forth in said writing. Any waiver by either Party of a term or condition of this Agreement in any instance shall not be deemed to be a waiver of any subsequent breach thereof, or of any other provision. All remedies, rights, undertakings, obligations and agreements contained in this Agreement shall be cumulative, and none of them shall be in limitation of any other. 18.2 This Agreement, including its attachments, represent the complete agreement of the Parties, supersede all prior discussions, communications and agreements between the Parties with respect to the subject matter hereof, and cannot be amended or modified except in a writing signed by both Parties. 18.3 It is understood that in case of conflict among the provisions of these Agreement with the provisions set forth under the Purchase Order, the latter provisions shall prevail. 19. GOVERNING LAW AND JURISDICTION 19.1 This Agreement and any obligations arising out of or in connection with this Agreement shall be subject to and governed by the Italian law. 19.2 The Parties hereby agree to submit to the exclusive jurisdiction of the Court of Milan, Italy, any dispute relating to this Agreement. 20. LIST OF ANNEXES Annex 1 – Product Handbook.
Licensee hereby accepts all terms and conditions of the REHABILITY Software License Agreement:
I accept
Pursuant and with the effects of articles 1341 and 1342 of the Civil Code, the Licensee hereby declares to specifically approve the following clauses of the Agreement:
14 (Limitation of liability);
15 (Licensee’s liability);
16 (Warranty limitation);
19.2 (Jurisdiction).
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