1. DEFINITIONS

The following terms are given the following meaning:

"Application Solution": the licensed software product(s) and services provided by SPS to the Customer in accordance with these general license terms and conditions. The list of software products comprising the Application Solution and the services included therein are specified in the Customer's purchase order or in the SPS Licence Certificate/Service Program certificate provided by SPS from time to time.

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"Purchase Order" means a unilateral communication from the Customer to SPS specifying the components of the application solution, the type of licence and its duration in the case of a term licence, or the components of the included services and the duration of the SPS Service Program agreement, the maximum number of authorised users or processor units and other elements that may limit the duration of the licence and the way in which the application solution may be used, and the consideration payable to SPS. In the event of any conflict between the terms specified in the purchase order and the terms specified in the SPS Service Program Licence Certificate/Attestation, the terms of the SPS Service Program Licence Certificate/Attestation shall prevail.

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"Licence Document": a unilateral communication sent from time to time by SPS to the Customer specifying the components of the application solution, the type of licence and its duration in the case of a term licence, the maximum number of authorised users or processor units and other elements that may limit the duration of the licence and the way in which the application solution may be used.​

"SPS Service Program Certificate": a unilateral communication sent periodically by SPS to the Customer specifying the components of the services included and the duration of the contract.

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"Dedicated Computer": one or more machines (i) owned by the Customer, or (ii) otherwise under the control of the Customer, on which the application solution may be installed.

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"Authorised User": a natural person acting as (i) a full-time or part-time employee of the Customer; or (ii) an external consultant of the Customer, authorised to use the application solution. The number of Authorised Users is specified in the Customer's purchase order or in certificates provided by SPS from time to time.

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"Single User": an individual who accesses the software as an Authorised User on a dedicated Client Computer for his/her exclusive use. The Single User licence allows the software to be installed on a second dedicated Client Computer, provided that it is used exclusively by the Authorised User and in any case never at the same time as the first workstation. The Customer must obtain ownership for the number of Single Users using the application solution. The ownership and number of Individual Users is specified in the Customer's purchase order or in the certificates provided periodically by SPS.
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"Concurrent User": a natural person who accesses the software as an Authorised User, at a given time, from a single location, even with the possibility of opening several sessions simultaneously, through the Concurrent Licence (or Network) mode. The Concurrent Licence allows the software to be installed on any number of Dedicated Computers, but the Customer must obtain ownership for the maximum number of Concurrent Users accessing the software simultaneously. Ownership and the maximum number of Concurrent Users is specified in the Customer's purchase order or in certificates provided by SPS from time to time.

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"Student": a natural person regularly enrolled in a course of study of the Customer.

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"Processor unit": represents the computing power of the servers hosting any server components of the application solution. The number of processor units that can be used is specified in the Customer's purchase order or in the bills of materials supplied by SPS from time to time.

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"SPS Service Program": Services included in the purchase of the Perpetual Licence with SPS Service Program, in the renewal of the SPS Service Program annual fee following the first purchase, in the Annual Licence. Services include: (i) specialist support via e-mail, (ii) technical support during software installation, (iii) supply of software updates (Fix Packs) and new versions (releases), (iv) code management (release for: updates, machine change, etc...), (v) free participation in online SPS Webinars to learn more about the use of software, (vi) access to the reserved Customers area, (vii) the possibility of enrolling in scheduled SPS Traning sessions with special discounts.

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"Add-Ons": additional functionalities created by SPS for its Clients, to optimise the daily work of statistical analysis.

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"Educational Licence': a licence reserved exclusively for schools and universities, or in any case for institutions which carry out purely educational activities and issue certificates suitable for conferring a qualification. Educational licences may only be used for educational or academic research purposes, not for commercial purposes or for profit. The Educational licence is available for each mode of acquisition (Perpetual Licence, Annual Licence, Multi-licence) and for either Single Users or Concurrent Users.

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"Research Licence: Licence reserved exclusively for research organisations or in any case for institutions that carry out purely scientific and/or medical research. The Research Licence may only be used for non-commercial and non-profit research purposes. The Research Licence is available for each acquisition method (Perpetual Licence, Annual Licence, Multi-licence) and for both Single Users and Concurrent Users.

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"Perpetual Licence": an acquisition method that requires the payment of an initial fee for the perpetual use of the application solution and Add-Ons. The Perpetual Licence includes the SPS Service Program for the first year after purchase. Twelve months after purchase, the Customer may continue to use the latest version of the application solution provided by SPS but is no longer entitled to the services included in the SPS Service Program. The type of licence is specified in the Customer's purchase order or in the Licence Certificate provided periodically by SPS.

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"Annual Licence": a purchase method which requires the payment of an annual fee for the use of the application solution, the Add-Ons and includes the SPS Service Program. At the end of the term of the last fee paid, unless renewed, the Customer must cease using any version of the application solution and Add-Ons on all dedicated computers. The type of licence is specified in the Customer's purchase order or in the certificates provided periodically by SPS.

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"Multilicence": means a mode of acquisition for Authorised Users in a quantity greater than one, which allows multiple installations of the software solution on different machines. The number of Authorised Users is specified in the Customer's purchase order or in the certificates provided by SPS from time to time.

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"SchoolLaB/CAMPUS": a type of contract, for annual Educational licences, reserved exclusively for schools and universities or in any case for institutions which carry out purely educational activities and which issue certificates suitable for conferring a qualification. The licences included in SchoolLaB/Campus may only be used for educational or non-commercial academic research purposes and in any case not for profit. SchoolLaB/Campus provides for the payment of an annual fee for the use of the application solution, the Add-Ons and includes the SPS Service Program. At the end of the term of the last fee paid, unless renewed, the Customer must cease using any version of the application solution and add-ons on all dedicated computers. The type of contract is specified in the Customer's purchase order or in the certificates provided periodically by SPS.

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"ResearchLaB": a type of contract, for annual Research licences, reserved exclusively for research bodies or in any case for institutions that carry out purely research activities. The licences included in ResearchLaB may only be used for non-commercial and non-profit research purposes. ResearchLaB provides for the payment of an annual fee for the use of the application solution, Add-On and includes SPS Service Program. At the end of the term of the last fee paid, unless renewed, the customer must stop using any version of the application solution and add-on on all dedicated computers. The type of contract is specified in the Customer's purchase order in the certificates provided periodically by SPS.

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"Customer": the natural person, entity, organisation or company that uses the application solution provided by SPS.

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"SPS": SPS S.r.l." with registered office in Via Antonio Zanolini, 36/AB 40126 Bologna (BO) and operative office in Via Isonzo 55/2, 40033 Casalecchio di Reno (BO).
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"Installation": making the application solution ready for execution on one or more Dedicated Computers.

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"Intellectual Property Rights" means any of the following rights, without limitation and on a worldwide basis: (i) all patents and related applications; (ii) all utility models and related applications; (iii) trade secrets, know-how and all other confidential information; (iv) copyrights and all related rights, whether registered or unregistered, pre-existing or henceforth in force; (v) all trademarks, trade names and any other distinctive signs, whether pre-existing or henceforth adopted or acquired, whether currently in use or not; (vi) all registrations and related documents, preparation documents for applications for registration anywhere in the world, all re-issues, sub-divisions, extensions (including partial extensions), renewals and re-examinations of, continuations of and all rights associated with the foregoing rights (consistent with the foregoing); and (vii) all rights and/or interests having the same or similar effect and/or nature as those mentioned in (i) to (vii) above under applicable law and/or jurisdiction.
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"Third Party Components" means applications/programmes included in the Application Solution and developed by parties independent of SPS.
 

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"Party and Parties": shall mean individually or jointly the Customer and SPS.

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"Technical Referent": shall mean the Customer's Authorised User whose task is to coordinate with SPS for support purposes in compliance with the SPS Service Program obligations

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"Uninstallation": means the removal of the application solution from the Dedicated Computers.

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"Upgrade": the components developed by SPS, which represent a replacement or successor to a previous version of the application solution.

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"User Documentation": means the explanatory material and instructions for the application solution, in paper or electronic format.

 

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2. LICENSE

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2.1 OBJECT

SPS grants the Customer a limited, non-exclusive, non-assignable and non-transferable licence to:

(a) install the application solution on Dedicated Computers and use it for the number of Authorised Users and processor units for which the licence has been granted;

(b) make two (2) copies of the application solution for back-up purposes. All copies of the application solution are subject to the terms and conditions of these General Licence Terms and Conditions. The following notice must always be reproduced on each copy, both externally and internally, in a machine-readable format:

 

“Copyright SPS S.r.l.

Licensed Material - property of SPS S.r.l. All rights reserved".

Any exceptions to the assignability and transferability of the software must be declared and agreed upon directly with SPS.

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2.2 Delivery and Installation

The application solution and its updates, at SPS's sole discretion, are either (i) delivered to the Customer at the address communicated to SPS at the time of purchase; or (ii) available for download on a specific website chosen by SPS.

The Customer is responsible for both the Installation of the application solution and the Installation of any updates made available by SPS.

The Customer is obliged to install each component of the application solution.

 

2.3 Demo Version

SPS may, at its discretion, provide the Customer with a demo version of the application solution which the Customer may use for a specified period of time before deciding whether to purchase a licence.

The period of time of the demo version may not exceed 90 (ninety) days, after which the Customer must uninstall or return the application solution.

The demo version may not be equipped with all the features of the application solution and is made available for demonstration purposes only, and therefore does not guarantee the same degree of reliance provided by the full application solution.

The Customer acknowledges and agrees that any activities carried out by the Customer using the Demo Version are carried out at the Customer's own risk.

 

2.4. Limitations of use

The Customer agrees not to rent, lease, lend, upload or host on third party sites or servers, sell, redistribute, or sublicense the Application Solution, in whole or in part, or to allow others to do so.

The Customer is not authorised to develop products or software based on the application solution (derivative works). Any authorisation may be granted by SPS on the basis of a different written agreement.

If the application solution includes third-party components, the Customer undertakes to use such components only in conjunction with the application solution.

 

The Customer shall be directly responsible for the distribution and correct use of the solution.

Use of the solution is granted exclusively to authorised users. An Authorised User is bound to the body holding the contract (with the express exclusion of affiliated or subsidiary companies and consortia) as: (i) a full or part-time employee, (ii) a consultant or external collaborator using the licence on behalf of the holder body or in the presence of an explicit agreement, (iii) a student regularly enrolled in a degree course, in the case of Educational Licence and/or SchoolLaB/CAMPUS.

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3. SPS SERVICE PROGRAM

 

3.1 Objects and limitations

Upon payment of the Annual Licence Fee, the SchoolLab/CAMPUS Annual Licence Fee or the SPS Service Program Perpetual Licence Fee, and subject to compliance with the terms and conditions set out herein, SPS provides the SPS Service Program to the Customer.

The SPS Service Program is provided to the Customer by SPS only as long as it is available, at SPS' discretion, and to the extent necessary to use the application solution.

The Customer acknowledges that it is SPS' discretion to determine the type of SPS Service Program to be operated on the application solution.

The SPS Service Program does not include any support for hardware, operating systems, network software or third party software.

The Customer acknowledges and agrees that SPS will provide the SPS Service Program to the Customer, using reasonable professional diligence, only on the latest and penultimate version of the Application Solution and that SPS will not provide any SPS Service Program for earlier versions.

The Customer acknowledges and agrees that SPS will not provide any SPS Service Program if the Customer has modified the Application Solution in any form or to any extent.

The Customer acknowledges that SPS will only provide technical support to the Customer's Technical Support Coordinator and not to individual Authorised Users.

The Customer shall direct any request for technical support to SPS, even if the material submitted refers to third party component manufacturers that may be included in the application solution.

 

Any request by the Customer for technical support that falls outside the scope of the SPS Service Programme specified herein will be treated as a consultancy activity by SPS and, upon notification, subject to separate financial evaluation.

 

3.2 SPS Service Program Renewal

Renewal of the SPS Service Programme shall commence on the first day of the month following expiry of the initial term and shall last for at least twelve months.

 

Payment of the SPS Service Program is based on the assumption that the Customer is renewing all the components of the application solution listed in the initial Licence Certificate and not just some of them. If the Customer wishes to renew only part of the components acquired, SPS reserves the right to adjust the price on the basis of the price lists in force on that date.

 

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4. DURATION

 

4.1 Duration and termination

These Licence terms and conditions come into force when the box containing the storage media is opened or when the application solution is installed, copied or used in any way.

The term of these terms and conditions, with the exclusion of the SPS Service Program, shall be as follows:

• In the case of a Perpetual Licence until the Customer continues to use the latest version of the application solution provided by SPS;
   

• In the case of an Annual Licence as long as the Customer continues to pay the annual licence fee;

• In the case of SchoolLab/CAMPUS for as long as the Customer continues to pay the annual SchoolLab/CAMPUS fee;

 

The term of the SPS Service Program is fixed as follows:

• In the case of a Perpetual Licence until the Customer continues to pay the SPS Service Program renewal fee.

• in the case of an Annual Licence as long as the Customer continues to pay the annual licence fee;

• in the case of SchoolLab/CAMPUS for as long as the Customer continues to pay the annual SchoolLab/CAMPUS Fee;

 

Any termination as of right pursuant to the provisions set forth herein shall terminate all of these General License Terms.

The conditions listed in Sections 2.4 (Limitations of Use), 5.1 (Intellectual Property) and Section 6 (Warranties; Limitations of Liability; Indemnity) shall survive the termination of these General License Terms.

 

4.2 Express termination clause

If the Customer breaches one or more provisions of these General Licence Terms and does not remedy the breach within a period of fifteen (15) working days after the breach has been ascertained, these General Licence Terms shall be deemed to be terminated as of right in accordance with Article 1456 of the Civil Code.

Termination shall not affect the Customer's obligation to pay all fees due and shall not release the Customer from any liability arising from the breach of the terms and conditions set forth herein.

As a result of termination, the powers and rights granted to the Customer under this agreement are terminated and the Customer must immediately cease use of the application solution, proceed to uninstall it and return to SPS or destroy all copies, giving SPS written confirmation of the destruction.

 

5. INTELLECTUAL PROPERTY

 

5.1 Intellectual Property

SPS is the exclusive owner of the application Solution, updates and any other intellectual property rights which SPS may develop, process or deliver under these General Licence Terms and Conditions.

These general licence terms do not constitute a sale and do not transfer to the Customer any title or ownership rights in the application solution, updates or any other intellectual property rights.

Except as expressly permitted by applicable law and without prejudice to the licence terms governing the use of any open-source components that may be included in the application solution, the Customer acknowledges and agrees that it may not copy, de-compile, reverse-engineer, disassemble, attempt to obtain the source code, modify or translate, reverse-engineer, disassemble, attempt to obtain source code, modify or translate, reverse engineer or create derivative works or other software based on the Application Solution, remove copyright notices and any other notices appearing in or on copies of the Application Solution, or take any action to transform the Application Solution into open source software.

 

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6. WARRANTIES; LIMITATIONS OF LIABILITY; ALLOWANCE

 

6.1 Warranties

SPS warrants that it has the right to license the application solution.

SPS further warrants that the storage media supplied are professionally manufactured in a manner consistent with generally accepted industry practices and in substantial conformity with the descriptions set forth in the purchase order or the bills of materials in the Certificates, and that the Customer's sole remedy for breach of this limited warranty and SPS' entire liability in connection therewith shall be replacement of the storage media or refund of payments therefor if SPS fails, using ordinary care and diligence, to provide a defect-free media.

THE CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE APPLICATION SOLUTION IS AT THE CUSTOMER'S SOLE RISK, AS ARE LACK OF SATISFACTORY QUALITY, PERFORMANCE, ACCURACY OR RESULTS. THE APPLICATION SOLUTION IS PROVIDED ON AN "AS IT IS" AND "AS AVAILABLE" BASIS. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, WHICH ARE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SPS MAKES NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FREEDOM FROM DEFECTS, OR FITNESS FOR A PARTICULAR PURPOSE. SPS DOES NOT WARRANT THAT (i) THE APPLICATION SOLUTION WILL MEET CUSTOMER'S BUSINESS NEEDS; (ii) IS ERROR-FREE OR WORKS CONTINUOUSLY OR THAT THE RESULTS OBTAINED FROM ITS USE ARE ACCURATE AND PRECISE; AND (iii) ALL ERRORS IN THE APPLICATION SOLUTION CAN BE FOUND AND CORRECTED. FOR PURPOSES OF THIS AGREEMENT, SPS DOES NOT WARRANT THAT UPDATES WILL BE MADE AVAILABLE DURING THE TERM OF THIS AGREEMENT.

 

6.2 Limitation of liability

To the maximum extent permitted by law, in no event shall SPS be liable for the Customer's use of or inability to use the Application Solution; for costs incurred by the Customer in procuring substitute goods or services; for loss of profits, use, revenue or data; for production downtime; directly or indirectly, for any incidental, special, indirect, consequential or punitive damages regardless of the theory used to identify such damages or other liability. In addition, SPS's liability arising out of or relating to these Terms and Conditions shall not exceed the amount paid or payable by you to SPS in respect of the annual licence fee or maintenance fee. This limitation shall apply even if SPS was aware of the possibility of such damage. The Customer acknowledges that the fee paid reflects this allocation of risk and that the limitation set out in this section is an essential element of the agreement between the parties.

 

6.3 Indemnity

To the maximum extent permitted by law, the Customer agrees to indemnify and hold harmless SPS, and at SPS's request, to defend SPS, its directors, officers, employees, agents and suppliers from any and all claims, losses, liabilities, damages, charges, expenses and costs including, without limitation, legal and court costs which SPS may incur arising out of or relating to any of the following: (i) breach by the Customer of an obligation under these General Licence Terms; (ii) use of the Application Solution by the Customer in violation of any third party's intellectual property rights. Under no circumstances may the Customer enter into any transaction or agreement with a third party which relates to SPS's rights or which is binding on SPS in any way without SPS's prior written consent.

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6.4 Ethical code

SPS S.r.l., a company of the Var Group, adheres to the relative Code of Ethics (available at the link https://www.var.srl/codice-etico-var/). In this regard, the Customer declares to have read this Code of Ethics.

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6.5 Legislative Decree 231

The Customer declares that he/she is aware of the regulations in force regarding the administrative responsibility of legal persons and, in particular, the provisions of Legislative Decree no. 231 of 8 June 2001.

The Customer declares that he/she has adopted and effectively implemented company procedures and behaviors and has given instructions to his/her employees and/or collaborators that are suitable to prevent the commission, even attempted commission, of offences for which the sanctions set forth in Legislative Decree no. 231 of 8 June 2001 are applicable and undertakes to SPS S.r.l. to maintain all such procedures effectively implemented for the entire duration of these General Conditions.

The Parties agree that failure to comply, even in part, with the above adoption and/or effective implementation constitutes a serious breach of these General Conditions.

As a consequence, SPS S.r.l. reserves the right to:

1. suspend the performance of any ongoing contract by notifying the Customer by registered letter containing a summary of news reports, including press reports, about factual circumstances or legal proceedings from which non-compliance may reasonably be inferred, and/or

2. rescind unilaterally, including during performance, or to terminate any contract in progress, to be exercised by registered letter containing a summary of the factual circumstances or legal proceedings evidencing noncompliance.

The exercise of the right, referred to in letters a) and b) above, shall take place to the detriment of the Customer, in any case charging him/her with all increased expenses and costs arising from or resulting from such non-compliance, and always without prejudice to the Customer's liability for any prejudicial event or damage that may occur as a result of such non-compliance and the obligation to hold SPS S.r.l. harmless for any third party action arising from or resulting from such non-compliance.

The Customer agrees to comply with and enforce all applicable anti-bribery laws, regulations and orders of the jurisdiction in which the Products are purchased based on these Terms. The Customer agrees to comply with and enforce the United States Foreign Corrupt Practices Act (the "FCPA"), the UK Bribery Act 2010 and the anti-corruption laws of the country in which the Products are purchased based on these Terms ("anti-corruption laws").

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7. GENERAL DISPOSITIONS

 

7.1 Personal data protection

The parties acknowledge that they have informed each other of possible personal data processing activities in connection with these General Licence Terms and Conditions and declare that they will process personal data in accordance with the relevant legal provisions.
 

 

7.2 Controls

SPS reserves the right to carry out checks on the correct use of the application solution by the Customer, and to extend this right to manufacturers of third-party components that may be included in the application solution, in a manner agreed with the Customer and in any case carried out without prejudicing the performance of the Customer's normal production and commercial activities. The Customer guarantees its full cooperation in such control activities, which may occur during the duration of these conditions and for a period of two years following the termination of these conditions (see paragraph 4.1 Duration and term).

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7.3 Major force

SPS shall not be liable for any loss, damage or penalty arising from delays or non-performance due to natural disasters, supplier delays or other causes beyond SPS's reasonable control.

 

7.4 Transfer

The Customer may not transfer these General Licence Terms and Conditions, purchase orders, Certificates or any other rights recognised herein without the prior written consent of SPS.
 

7.5 Waiver of recourse

The waiver by SPS of recourse for a specific breach by the Customer does not constitute consent to, or justification for, any different or subsequent breach.
 

7.6 Full agreement and amendments

Unless otherwise provided for in these terms and conditions, these terms and conditions constitute the entire agreement between the parties (and supersede all prior agreements, discussions, communications, descriptions of facts, warranties or understandings) with respect to its subject matter. SPS reserves the right to unilaterally amend these general terms and conditions. If the Customer does not wish to accept these changes, he/she may exercise his/her right of withdrawal in accordance with the procedures laid down by the applicable law.

 

7.7 Nullity of the clauses

If one or more of the provisions hereof are invalidated by a court of law in a final judgment or are found to be void under applicable law, the remaining provisions shall remain in force.

 

7.8 Translations

Any translations of these General Terms and Conditions into languages other than Italian are not legally binding. In case of inconsistencies between the Italian version and versions in other languages, the Italian version shall always prevail.

 

7.9 Applicable Law and Jurisdiction

These general licence conditions are governed by Italian law and the competent Court for any controversy, legal action or dispute is that of Bologna.

The Parties expressly exclude the applicability of the rules of international law governing conflict of laws.

Nothing in the foregoing shall prevent SPS from bringing an action for infringement of intellectual property rights in any country where such infringement is alleged to have taken place.