1.1 The purpose of these General Conditions is the provision of user licenses for Babylon Cloud Software to the Underwritingclient, and the users to whom the Underwriting client gives software access.
1.2 These general conditions of the contract (hereinafter: “General Conditions”), together with the Offer document and the special conditions applicable to the specific offers, of which the Client declares to have received a copy, govern the provision of licenses of Babylon Cloud technology to the Client by Babylon Cloud S.p.A. (hereinafter: “Babylon Cloud”).
1.3 These General Conditions, together with the Offer document and the special conditions, constitute the entire and only agreement between the parties and supersede any previous documents exchanged between the parties or verbal statements having the same subject matter or content. Any amendment and/or integration shall be made in writing under penalty of nullity.
1.4 Babylon Cloud software, envisaged in these General Conditions, is composed of an application client component (application client for computers and servers, mobile apps) and a server-side component made available through the Internet via either the web browser or the application client.
2.1 Each Contract for the provision of Software Licenses to use Babylon Cloud technology signed by the Client shall be governed by these General Conditions and may be entered into by acquiring the Software License on AppSumo marketplace (hereinafter “Order” both in case of an offer expressly accepted by the client or an Order by the Client accepted by Babylon Cloud).
2.2 It is expressly understood that:
2.3 It is expressly understood that if users do not follow up on their e-mails and do not complete the activation procedure, the Software licenses, even if not activated, shall be deemed to have been made available to users in accordance with their contractual obligations. Failure to activate the Software does not entitle a refund of the license fees.
3.1 Babylon Cloud product listed on AppSumo Marketplace is sold as a Lifetime License which gives the user access to the Product for the lifetime of the Product.
3.2 The Lifetime of the Product is set to be 20 years starting from September, 1, 2023. The life of the Product can be extended at the sole discretion of Babylon Cloud.
3.3 As an AppSumo product, The Software License is combined with the availability of storage resources, which are granted up to the size stated in the product description. The availability of the resources is conditioned to the actual use of them by the users; the storage will be cancelled if the user will not access the Software for 6 consecutive months. Users will be notified when the 6 months limit will be close, and when it will be reached. The user agrees that Babylon Cloud will not be kept liable for the loss of data or for any damage consequent to the cancelation of storage in the case of no access for 6 consecutive months. We define access of the Software either: 1) accessing the web Portal, 2) performing a backup through the PC client, even if the backup is not uploading any file, 3) accessing the resources through the mobile app.
4.1 It is expressly understood that the termination of the effects of each Contract for any and all reasons will entitle Babylon Cloud to delete any and all data and/or information and/or files and/or content of any kind and nature (collectively: “Content”) present on the infrastructure used by the Client during the term of the Contract. For this reason, if prior to the termination of the effects of the Contract, the Client has not saved what relates to Client itself (including final users), no claim can be made against Babylon Cloud nor any damage can be claimed if the Client loses one or more Content.
4.2 Without prejudice to the right of Babylon Cloud, and not the duty, to backup (hereinafter: “Backup/Back-up”) the Content prior to the termination of the Contract and to keep it for a maximum of seven days for the Client. If Babylon Cloud has made the Backup, the Client shall be entitled, upon payment of the fee provided by Babylon Cloud, to receive a copy thereof.
4.3 The termination of the effects of each Contract for any reason whatsoever shall not affect the Client’s obligation to pay the fees, for any reason, due to Babylon Cloud even if the Contract is terminated as a result ofBabylon Cloud’s fault.
4.4 In the event of the termination of all Contracts between the parties, each party may immediately terminate the General Conditions.
5.1 The Client will have access to the Software client application components to be installed on PCs and servers, and mobile apps to be installed on mobile devices (“client-side components”), as well as access to web portals and Babylon Cloud proprietary APIs (“server-side components”). The “server-side” infrastructure made available for the use of the Software is located in Italy. The software licenses will be provided by Babylon Cloud and/or its subcontractors through technological hardware and software infrastructure available to Babylon Cloud and/or its subcontractors. Babylon Cloud shall have the right to change the subcontractors at its sole discretion. A list of subcontractors used by Babylon Cloud under each Software Licenses will be made available to Clients upon Client’s request made to Babylon Cloud’s sales staff or via the email address email@example.com.At the time of signing, Babylon Cloud does not rely on any provider to develop or deliver its own software.
5.2 Babylon Cloud reserves the right to update the client-side and server-side components at any time and to update/replace the hardware infrastructure.
5.3 Client will have access to the functionalities of the Software immediately after Client’s activation, which is performed entirely by Babylon Cloud. Individual users will have access to functionalities following the completion of the user activation process. In the event that the Client and Babylon Cloud agree to the provision of the Software and corresponding licenses from a specific site, Client’s activation may require the preparation of the site and timing to be estimated on a case-by-case basis.
6.1 The Client may notify Babylon Cloud in writing about any defects during the use of the Software/Services by sending an email to firstname.lastname@example.org or other email address expressly dedicated to the Client, as may be indicated in the Offer Document.
6.2 Babylon Cloud will respond to the notification of the Client within 5 (five) business days, unless higher service level agreements (SLAs) are agreed upon envisaging special conditions.
7.1 Without prejudice to the provisions of Article 9, in the event of failures, defects, faults or malfunctions in one or more elements of the infrastructure and/or third party hardware or software equipment or networks used to allow the Client to use the Software, even if due to unforeseeable circumstances, force majeure or other acts or events beyond Babylon Cloud’s control, Babylon Cloud may suspend the use of server-side functionalities for the time necessary to its proper restoration.
7.2 Babylon Cloud, with a minimum of 2 (two) business days notice to be communicated via email to the Client, may suspend the delivery of each software licenses to allow the performance of routine maintenance activities. In case of extraordinary maintenance, notice will be given to the Client as soon as possible.
7.3 In the cases referred to in the preceding paragraphs, no compensation and/or fees for any reason will be due by Babylon Cloud to the Client.
7.4 Babylon Cloud monitors the use of the Infrastructure for security reasons and to prevent or interrupt abuse. To this end, Babylon Cloud reserves the unquestionable right to temporarily suspend and/or limit the functionalities of Software for one or more users if it detects abnormal and/or fraudulent use of the Software which, at Babylon Cloud’s sole judgment, is likely to affect the use of the Software’s functionalities by other users. In such event, Babylon Cloud will immediately notify the user towards which it has applied a restraining order and will wait for justification, if any. In any case, in the cases described above, Babylon Cloud may take action for compensation for damages suffered and may terminate the Terms and Conditions pursuant to art. 1456 Italian Civil Code.
8.1 In the event of breach of even one of the obligations referred to in Article 11 of the General Conditions by the Client, as well as in other cases provided for therein, Babylon Cloud shall be entitled to terminate each Contract under which the breach occurred pursuant to art. 1456 Italian Civil Code by sending the Client a registered letter with return receipt with the obligation to pay the fees due for services provided in addition to compensation for any damage suffered by Babylon Cloud and the payment of any penalties provided in these General Conditions.
9.1 Babylon Cloud guarantees the continuity of Software’s functionalities requiring the availability of the server-side infrastructure, without prejudice to the possibility of temporarily suspending such availability during ordinary and extraordinary maintenance activities pursuant to Section 8.
9.2 Without prejudice to the mandatory limits of the law, Babylon Cloud, its parent company, subsidiaries, affiliates and their assigns, and tenants, shall not be held liable to the Client, its assigns and/or third parties to whom the latter is liable for any material or non material, direct and/or indirect damages, as well as for any interruption or suspension, even partial, or malfunction of the Software, caused by and/or related to any circumstances attributable to act or fault, even slight, of the Client. In particular, Babylon Cloud shall not be held liable:
In any event, the Client waives the right, as from the conclusion of the Contract, to raise claims against Babylon Cloud, its parent company, subsidiaries, affiliates and their assigns, tenants, any dispute, exception, request, claim, right, recourse, action of any kind or nature in the event of damage, material or non material, direct and / or indirect, interruption or suspension, even partial, defects in the operation of the Software, resulting from the provisions of this Article 10.2.
9.3 Notwithstanding the mandatory limits of the law, Babylon Cloud, its parent company, subsidiaries, affiliates and their assigns, tenants, shall not be held liable to the Client, its assigns and/or third parties to whom the latter was required to respond in any capacity for damages, material and non-material, direct and / or indirect, arising from and / or related to unforeseeable circumstances and / or force majeure or the actions of third parties. Force majeure means any unforeseen and unpredictable events including, as an example but not limited to: sudden power failure, explosions, lightning, earthquakes, fires, floods, strikes, vandalism or malicious acts to anyone related. In particular, Babylon Cloud, its parent companies, subsidiaries, affiliates and their related shall not be held liable for damages resulting from:
In any event, the Client waives the right, as from the conclusion of the Contract, to raise claims against Babylon Cloud, its parent companies, subsidiaries, affiliates and their assigns, tenants, any dispute, exception, request, claim, right, recourse, action of any kind or nature in the event of damages, material or non material, direct and / or indirect, if the same resulted from the occurrence of what envisaged in this paragraph.
9.4 Babylon Cloud’s liability against the Client for damages caused by failure to perform its obligations is excluded when the fact is not attributable to Babylon Cloud’s fraud or gross negligence. In any event, the Client waives the right, as from the conclusion of the Contract, to raise claims against Babylon Cloud, its parent company, subsidiaries, affiliates and their assigns, tenants, any dispute, exception, request, claim, right, recourse, action of any kind or nature in the event of damages, material or non material, direct and / or indirect, it may suffer due to Babylon Cloud’s failure to fulfil its obligations, when this is not due to fraud or gross negligence of Babylon Cloud.
9.5 The Client shall indemnify and hold Babylon Cloud, its parent company, subsidiaries, affiliates and their assigns, if any, tenants harmless, from any dispute, exception, claim, right, recourse, action of any kind and nature that may be brought against Babylon Cloud, its parent company, subsidiaries, affiliates and their assigns, if any, tenants, by third parties for any damages, material or non material, direct and / or indirect, in any way dependent on the requirements provided in paragraphs 10. 2, 10.3, 10.4.
9.6 In no event shall the requirements of the foregoing paragraphs be construed to imply a limitation of Babylon Cloud’s liability for failures attributable to Babylon Cloud’s fraud or gross negligence.
9.7 Without prejudice to the limits the law and the requirements of the preceding paragraphs, the parties agree that in all cases in which Babylon Cloud’s liability to the Client is established: (a) Babylon Cloud shall not in any event be liable to Client, its assigns and/or third parties to whom the Client was liable in any capacity whatsoever, for damages arising from loss of profit, loss of productivity, loss of depreciation, loss of earnings nor for any other form of lost profits or indirect and consequential damage or damage related to the damaging event; b) The recoverable damages shall not, in any event, exceed the total amount of fees actually paid by the Client to Babylon Cloud in the 6 (six) months preceding the alleged breach which gave rise to the claim.
9.8 It is expressly understood that all responsibilities in relation to the license of any other software installed by the Client on the technological infrastructure on which Babylon Cloud Software is installed are exclusively the responsibility of the Client, regardless of the metrics used by the same to obtain ownership and/or rights of use of the licenses. To this end, the Client agrees to notify Babylon Cloud of any and all constraints and/or limitations that may result in claims of any kind and nature by the Client against Babylon Cloud. Babylon Cloud in this case will be entitled to withdraw at its sole discretion from the General Conditions and each Contract, if it believes that third parties may lay claims in relation to the programs installed on the technological infrastructure used for the delivery of Babylon Cloud Services. In the event of withdrawal by Babylon Cloud, nothing shall be due from Babylon Cloud to the Client. In any event, it is understood that the Client agrees to indemnify and hold harmless Babylon Cloud from any adverse consequences that may arise as a result of claims by third parties.
10.1 The Client agrees to provide accurate personal data and to keep such data updated during the term of the Contract.
10.2 The Client agrees not to use Babylon Cloud Software, and not to allow third parties to use the Software, for unlawful purposes of any kind or nature or otherwise prohibited by law.
10.3 Client shall insure that each Software is used only by persons authorized by the Client and subject to the Client’s direct control and / or hierarchical and disciplinary power, assuming all responsibility in this regard.
10.4 The Client shall promptly inform Babylon Cloud of any dispute, claim or proceeding brought by third parties in relation to any service of which it becomes aware. The Client shall be liable for any damages of any kind and nature, without exception, suffered by Babylon Cloud as a result of the failure to notify or for untimely notice.
10.5 The Client shall inform Babylon Cloud of any partial or total interruption of each telecommunication access service provided by third party providers.
10.6 The Client shall be responsible for the Content as well as the manner and reasons for the use of each Software and shall hold Babylon Cloud harmless from any action, claim or exception that may be claimed by third parties in relation to the content, the manner and reasons for the use of each Software by the Client.
10.7 The Client warrants the lawful availability of the data and/or information and in general of the Content that it will upload to and/or use through the Infrastructure when using Babylon Cloud Software.
10.8 In the event of a security incident or loss of data, the customer is obliged to report this as soon as possible to Babylon Cloud to allow timely analysis of the situation and taking charge of the incident.
11.1 Babylon Cloud operates according to high standards of physical and logical security with the aim of protecting the integrity and confidentiality of user data. In particular, Babylon Cloud:
11.2 Babylon Cloud undertakes to promptly report the occurrence of a security incident or data loss, providing proactive guidance on the analysis regarding data loss, on the actual extent of the incident and its consequences in terms of confidentiality and/or integrity, on the measures taken to limit the damage of the incident.
11.3 Babylon Cloud periodically undergoes third-party audits according to the standards of the certifications acquired and regularly carries out security audits, Vulnerability Assessment and Penetration Tests on its infrastructures. Babylon Cloud is also available to customers who want to agree on the conduct of security audits or Penetration Tests according to industry standards.
12.1 Data communicated by the Client during the duration of the contractual relationship are processed pursuant to and for the purposes of art. 13 of Legislative Decree n. 196/2003, containing the Code regarding the protection of personal data and the European Regulation n. 679/2016 (GDPR).
12.2 CATEGORIES OF DATA PROCESSED – The data collected by Babylon Cloud may include contact data (email/phone number), billing data and the totality of the documents uploaded by the Users themselves on the Babylon Cloud technological platform.
12.3 PURPOSE OF PROCESSING – The data collected by Babylon Cloud will be processed only for the purpose of:
12.3.a. purposes strictly functional to the establishment/management of the Contract (and in particular the activation and correct activation of the software licenses, the provision of assistance, the management of the contractual relationship, the monitoring of consumption and traffic also aimed at maintaining the correct level of computer security and fraud prevention)
12.3.b. Purposes related to the fulfilment of legal obligations, regulations, EU legislation, provisions issued by public authorities.
12.4 COMMUNICATION TO THIRD PARTIES – The data collected by Babylon Cloud may be communicated to third parties solely for the purpose of carrying out the activities related to the contract. Third parties to whom the data collected may be communicated may be: Public Administrations, Judicial Authorities, Financial Administration (fulfilment of legal obligations, regulations, provisions); banks (management of collections and payments).
12.5 LACK OF CONSENT TO DATA PROCESSING – The processing of data by Babylon Cloud is based on the explicit consent of the user. If user does not consent to the processing of data, Babylon Cloud will not be able to provide the functionality of its software.
12.6 METHODS OF DATA PROCESSING – The data subject to processing are processed by paper, telematic, electronic, computer or otherwise automated; the data are stored and processed in the member states of EU according to principles inspired by the European GDPR regulation. Data is processed with the use of methods, procedures and technical security measures in order to preserve the confidentiality, integrity and availability of the data. Billing data and all documents uploaded by the users themselves on the Babylon Cloud technological platform are stored exclusively for the contractual duration of the services and for a security period (“grace period”) at the end of the software licence within which the user/client is entitled to recover its data. Contact data is retained as long as it is needed for the legitimate purposes for which it was collected, unless the user explicitly expresses his or her desire to remove it.
12.7 RIGHTS OF THE DATA SUBJECT – The data subject may exercise the following rights:
12.8 DATA CONTROLLER – The data controller is: Babylon Cloud S.p.A. in the person of its legal representative with registered office in Rome, Via di Tor Pagnotta, 86. For any further information and to exercise the above rights you can write to email@example.com.
12.9 OPPOSITION TO THE PROCESSING – The data subject may, for reasons related to his/her particular situation, oppose the processing of his/her personal data if it is based on legitimate interest or if the processing is for commercial promotion activities, by sending a request to the Data Controller at firstname.lastname@example.org. The data subject has the right to the cancellation of his/her personal data if there is no legitimate reason for Data Controller to oppose to such request, and in any case if the data subject has opposed the processing for commercial promotion activities.
12.10 COMPLAINT BY THE DATA SUBJECT – The data subject may lodge a complaint with the competent supervisory authority on the Italian territory (The Italian data protection authority) or to the equivalent authority which has relative powerin the Member State where the alleged violation of the GDPR occurred.
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13.1 In the event that one of the General Conditions or part of it is deemed invalid or inapplicable, such invalidity will not invalidate the remaining part of the clause or the General Conditions which will continue to apply in full. The articles of the General Conditions found to be invalid or inapplicable will be substituted with other legally permitted clauses that will allow the General Conditions to be as close as possible to the General Conditions.
14.1 Any communication and/or notification relating to this contract shall be made in the manner specifically provided for above, under penalty of ineffectiveness, to the following addresses, at which the parties declare to elect address for service:
14.2 The Client agrees to be mentioned as the Client of Babylon Cloud’s software licenses on the website www.babyloncloud.com and in Babylon Cloud’s commercial presentations.
14.3 Any communications about the nature, extent and manner of the services provided by Babylon Cloud shall not be disclosed without the express written permission of the Client (including electronic communications such as PEC and email), except as required by law or at the request of governmental or regulatory authorities.
15.1 The General Conditions are subject to Italian law.
15.2 Any dispute relating to the General Conditions shall be settled exclusively by the Court of Rome, with the exclusion of any other competing court, except in cases where the law expressly provides for a specific competent court.