GENERAL CONDITIONS

1. Object, Definitions and Duration

1.1. These General Conditions (“GC”) govern the contractual relationship between the client detailed in the Order Form (“Client”), as defined below, and MotorK Italia S.r.l. with registered office address at Via Ludovico d’Aragona 9, Milano (MI) – 20132 (Italy), VAT number IT07134830962 and Certified E-mail address drivek@pec.it in the person of its legal representative pro tempore (hereinafter referred to as “MotorK”, and, collectively with the Client, the “Parties”), a leading company in Europe in the field of sales & marketing for the automotive industry, specialised in the supply of products and the provision of services to support the digitalisation of the full process for the sale of vehicles, through a cloud-based SaaS platform known as “SparK”, which includes a comprehensive products and services suite to support the full life-cycle of a vehicle (said products and services are hereinafter collectively referred to as “Services”).

1.2. Unless otherwise defined in these GC, for the purposes of the GC the following terms shall have the meanings listed below:

– Agreement: binding agreement between the Parties, formed by the GC and the Annexes.

– Annexes: each and every Annex attached to these GC, and particularly the Order Form/s, the Product Sheet/s, the Service Sheet/s, the Technical Annex/s, the DPA and any and whatsoever additional information material and/or document pertaining to the Services which MotorK provides to the Client within the scope of the relationship detailed in the GC. Any reference to the Annexes in these GC does not automatically entail that all the mentioned documents must be provided/signed as some of said Annexes are required only potentially, depending on the specific requests of the Client. In the event of discrepancies between the GC and the Annexes, the following order of prevalence shall apply: Order Form with reference to the content thereof, Technical Annex with reference to the content thereof, Product Sheet/Service Sheet with reference to the content thereof, DPA, further materials provided by MotorK with reference to the content thereof, GC.

– DPA: instrument through which the Client appoints MotorK as personal data processor and/or sub-processor under Article 28 of the Regulation (EU) 679/2016, where the Services under the Agreement require MotorK to carry out processing operations concerning personal data for which the Client is the Controller;

– Order Form: document attached to the GC containing a detailed description of the Services agreed upon each time between the Parties and provided by MotorK to the Client;

– Implementation Period: (where necessary and requested in relation to Products/Services in scope) indicates the period between the signing of the Agreement/Order Form and the day when the Product/Service is ready to be delivered.

– Product Sheet/Service Sheet: document attached to the GC and containing a detailed description of the products/services provided by MotorK within the scope of the Services, which may include, but are not limited to, the WebSparK and LeadSparK products/the Training & Coaching service, which the Client undertakes henceforth to examine in detail and shall be deemed accepted in full upon the signing of the Order Form;

– Technical Annex: document signed by the Client and attached to the GC containing a description of the specifics and customised technical characteristics of the Service agreed upon in the Order Form and expressly requested by the Client to MotorK;

1.3. The Agreement is deemed as accepted by and binding upon the Parties upon the signing of the Order Form, and also, in addition thereof and by way of example and not limitation, upon acceptance of the quote prior to the GC and the Annexes and/or upon the starting of the provision of the Services, whether in whole or in part (“Go Live Date”) – including, but not limited to, the provision by MotorK of access to the Services and/or upon the sending of the invoice for the payment of the Consideration as defined below by MotorK and/or the acceptance of the Products and/or Services as provided by art. 4.2 below. The Agreement shall prevail over any other prior understanding concerning the same object, including when contained or reported in sentences, statements, or correspondence between the Parties, and no addenda or amendments to the Agreement shall be binding upon the Parties unless they are communicated in writing and expressly accepted by both Parties including via e-mail or Other Information Technology Communication Media, as defined below.

1.4. By accepting the Agreement, the Client declares to have received from MotorK all the necessary information regarding the Services, and to wish to grant upon MotorK the assignment to carry out the Services under the terms and conditions of the Agreement, finding such terms and conditions suitable and consistent with the Client’s purposes.

1.5. The GC apply to all the Annexes agreed upon between the Parties from the time of acceptance of the first Order Form and for the time period defined in the Agreement.

1.6. The duration of the Agreement is indicated in the Annexes. Upon its expiry the Agreement shall be automatically renewed for periods equivalent to the initial period indicated in the first Annex, unless one of the Parties gives written notice of their intention not to renew the Agreement, sending such notice to the other Party via registered letter with proof of receipt and/or Certified E-mail at least 60 (sixty) days prior to the date of expiration of the Agreement, or, in case the Agreement is automatically renewed, at least 60 (sixty) days prior to any term of renewal; the Parties may also terminate or withdraw from the Agreement in the cases detailed below.

1.7. It remains expressly understood between the Parties that upon each renewal of the Agreement, the Client acknowledges and accepts that it shall automatically be subject to the most recent version of MotorK’s General Conditions (GC) available at the time of renewal. The current version of the GC shall be made accessible to the Client at MotorK website.

2. Obligations of MotorK

2.1 MotorK undertakes to provide the Services to the Client under the terms and conditions detailed in the Agreement. It is in any case agreed between the Parties that anything which is not expressly provided for in the Annexes, including, but not limited, to, any activities that are related or complimentary to the Services, shall be intended as excluded from the Agreement, and as such must be subject to a separate quote, and expressly agreed upon in writing and regulated under specific Annexes.

2.2 The GC shall apply to all the Annexes agreed upon between the Parties, without prejudice to right of MotorK to update the GC and promptly provide the newly updated text to the Client in writing, it being understood that, in this case, the GC shall exclusively apply to the Services detailed in the Annexes being accepted after the newly updated GC are communicated.

2.3 MotorK undertakes to provide the Services with all due diligence and in accordance with the Agreement.

3. Obligations and Guarantees of the Client

3.1. The Client: i) undertakes to provide to MotorK clear instructions and guarantees that all the information and/or content provided to MotorK shall be precise, correct, truthful, and compliant with the legislation applicable thereto, ii) ensures, without prejudice to the provisions detailed hereunder, its full collaboration with MotorK, making available in time all the information which MotorK should require and deem necessary for each type of Service, and, more generally, for the performance of the assignment under the Agreement and iii) undertakes henceforth to promptly confirm in writing, including simply via e-mail, that the Service provided by MotorK to the Client has been delivered/activated, iv) and iii) undertakes (also on behalf of its third-parties eventually involved) to fully comply with the implementation process and activities communicated by MotorK during the Implementation Period (if any).

3.2. In relation to the article 3.1 above, the Parties acknowledge that there is a correlation in principle between the implementations activities to be provided by MotorK and the Client’s requirements, and that therefore the ability of MotorK to be compliant with the provision of the Services starting on the Go Live Date, wholly or in part, may depend on the fact that the Client observes the corresponding requirements

3.2 For the entire duration of the Agreement, the Client undertakes: i) not to use the Services for purposes other than the purposes expressly listed in the Agreement and ii) use the Services in compliance with all the applicable national or European Community laws and regulations, including, but not limited to, any laws and regulations applicable to the protection of personal data and the protection of fair competition, intellectual and industrial property, and commercial communication.

3.3 In utilizing the Services, the Client further undertakes henceforth: i) not to access or attempt to access any reserved area of the Services to which the Client is not granted access under the Agreement, ii) not to perform any reverse engineering, decompiling, or disassembling of the Services, either directly or through third parties, and iii) not to carry out any other operation for which the Client is not expressly authorised under the Agreement. In any case, the Client acknowledges that the violation of the foregoing obligations shall constitute a serious breach of the Agreement, with all legal consequences. Under no circumstances shall MotorK and/or its suppliers/licensees be held liable for any damage which may be caused directly and/or indirectly and arising out of the improper use of the Services on the part of the Client.

3.4 The Client undertakes not to use the Services for managing third-party data, and acknowledges and guarantees henceforth that MotorK shall not under any circumstances be deemed responsible for the data acquired from third parties and managed by the Client through the Services. The management of third-party data by the Client shall be exclusively allowed when the Client acts in the capacity of processor, duly appointed by the data Controller under Article 28 of Regulation (EU) 679/2016 (“Regulation”), with the consequent appointment of MotorK as the Client’s sub-processor, as per art. 12 below.

3.5 The Client henceforth acknowledges and accepts that any failure of MotorK to provide all or part of the Services for causes due to the Client shall not release the Client from the obligation to pay any sums owed to MotorK under the Agreement (including, but not limited to, any set-up fee and/or activation fee applicable and the full consideration as laid down in the Annexes), and to reimburse MotorK any of the costs already incurred by the latter in the performance of the Agreement, without prejudice, in these cases, to the right of MotorK to take action to obtain compensation for damages. This article shall also apply, by way of example but not limited to, including in the event of i) requests made by the Client to MotorK not to proceed with the provision of one or more Services after acceptance of the Agreement in any of the forms listed therein and ii) failure, by the Client, to provide to MotorK all or part of the information and/or data needed to perform the Service.

3.6 The Client undertakes, for the entire duration of the Agreement and for 12 (twelve) months following the termination thereof for any cause whatsoever, in accordance with the applicable provisions of law, not to carry out, either directly or indirectly or through any third parties or bodies, any activity aimed at recruiting any of the members of staff of MotorK, and not to engage in any aggressive and/or unfair competition practice aimed, in whatsoever capacity and/or for any reason whatsoever, at offering employment to and/or enlisting any of the members of staff of MotorK.  It is in any case understood that in the event of breach of this provision by the Client, in whatsoever capacity and for any reason whatsoever, the Client undertakes the obligation to pay to MotorK a sum of money, by way of penalty, for each former member of staff of MotorK who wrongly took employment from the Client, in an amount equivalent to 12 (twelve) months’ of the gross salary received by each such employee, without prejudice to the right of MotorK to take action to seek full compensation for the damages suffered in addition to the aforementioned penalty.

3.7 In the event of breach of the obligations set out in the foregoing above, the Client undertakes i) expressly to pay, by and no later than 30 (thirty) days of the mere request, expressed in writing, for the aforementioned amount by way of penalty and ii) not to delay the payment thereof or engage in any action to delay and/or defer the payment thereof, also including any legal proceedings which may in any way delay such payment.

3.8 The Client accepts and acknowledges that the Annexes may be exchanged between the Parties including via e-mail to the addresses indicated by the same Parties. Therefore, in these cases the Client undertakes to promptly confirm to MotorK to have correctly received any e-mail. Such receipt confirmation shall be valid as acceptance of the content of the Annexes, which shall therefore enable MotorK to start the provision of the Services including without each Annex being signed.

3.9 The Client represents and warrants that, on the date of acceptance of the Agreement, no claims pertaining to any of the platforms of the Client for which the Client has requested the Services have been raised or are currently pending, and the Client has not signed any agreement with any third parties which may restrict and/or prevent the provision of the Services by MotorK.

3.10 The Client henceforth represents and warrants to have all the necessary powers to sign and in general to accept the Agreement.

3.11 If the Client is a company that directly and/or indirectly controls other companies (either subsidiaries and/or affiliates) which intend to also use the Services, the Client i) declares to sign the Agreement also in name and on behalf of the aforementioned companies and ii) guarantees full compliance with all the terms and conditions of the Agreement including on behalf of the aforementioned companies. In the cases envisioned in this article, the Client undertakes i) to send a written notice to MotorK, including by using Other Information Technology Communication Media containing a list of the above mentioned companies that wish to use the Services and ii) indemnify and hold MotorK harmless from any damage, charge, claim, expense, or cost (including legal) which may arise out of any breach of the obligations under the Agreement by one or more of the companies that wish to use the Services and listed in the Client’s notice.

4. Service Provision Method

4.1 MotorK provides the Services on the basis of the information and the technical specifications received from the Client upon signing the Agreement. Therefore, the Client accepts and acknowledges that any failure to provide any information required by MotorK for the provision of the Services and/or the provision of any incomplete/inaccurate information to MotorK, or the submission of any requests to customize or change the Services while the Services are already under way, may undermine the proper provision of the Services by MotorK and/or entail additional costs charged to the Client and/or delays in activating the Services. In any event, MotorK shall not bear any liability whatsoever for any delays and/or non-performances of the Agreement that directly arise out of the Client’s breach of the above obligations.

4.2 All the Products and/or Services submitted to Client for approval shall be deemed accepted if within fourteen (14) calendar days after delivery Client has not provided to MotorK written notice identifying specifically any basis for not approving the Products and/or Services, provided that such communication specifically identifies the reasons for not providing acceptance. In any event, all matters connected with the Products and/or Services will be considered as accepted at the time that Client starts using them.

4.3 The Annexes, where applicable with respect to the Services, shall include a sequential plan detailing the time-frames for the provision of the Services and/or the delivery dates (“Work Plan”). The Work Plan details the standard time frames for the provision of the Services: the Parties acknowledge and accept that such time-frames are merely indicative, unless otherwise agreed between the Parties as expressly stated in the Annexes. The Client acknowledges and accepts that its own delays in performing the tasks required of the Client under the Work Plan and/or in performing any single stage of the provision of the Services may entail a delay in the same provision, without this entailing any liability upon, or be deemed a breach on the part of, MotorK.

4.4 The Client represents and warrants that its representatives, as listed in the Annexes, and any and whosoever employee and/or associate of the Client who, within the scope of the Agreement, shall see to the management of the Services and the relationship with MotorK with respect to the Services, and, more generally, the Agreement, shall have all the necessary powers to inform MotorK of any operating decision concerning the Services, in writing via e-mail; the Client therefore henceforth assumes full responsibility in connection to the actions of said representatives, employees, and/or associates, expressly exonerating MotorK from any responsibility in this regard.

4.5 By accepting the Agreement, the Client authorises MotorK to appoint of the implementation of the Services, in whole or in part, to external providers, including but not limited to, sub-contractors or any third parties with respect to MotorK, provided that MotorK shall continue to bear full responsibility towards the Client for the services provided by said third-parties for the entire duration of the Agreement unless the Client only in the event in which MotorK does not obtain the prior authorisation of the Client to appoint such third parties.

5. Service Continuity

5.1 For the purpose of guaranteeing the security, efficiency, and systematic updating of the Services, MotorK reserves the right to conduct, at any time, all the necessary technical operations (which may include, but are not limited to, ordinary maintenance operations, updating or renewal of hardware and software), undertaking to adopt the appropriate precautionary measures aimed at ensuring, as far as possible, the continuity of the Services, or, in any case, the least inconvenience for the Client. Said technical operations shall not be charged to the Client, as they are included in the Consideration agreed upon and defined hereinafter, unless otherwise stated by MotorK and/or agreed between the Parties.

5.2 In any event, if the updating and maintenance operations and/or the correction of information technology components should require the interruption of one or more Services, MotorK shall inform the Client serving reasonable notice, detailing the estimated time-frames for recovering the Services, unless such operations are of an urgent nature, in which case the Client grants MotorK the right to suspend the Services without reasonable notice, without prejudice to the commitment of MotorK to reduce any interruptions to the Services to the absolute minimum.

5.3 Where the interruption should exceed 7 (seven) working days, the Client shall have the sole right to obtain a reduction of the fee payable for the month in which said suspension or interruption took place, by an amount equivalent to the number of days in which the Service was effectively suspended or interrupted, with express exclusion of any other remedy.

5.4 Without prejudice to the above, under no circumstances shall MotorK be held liable for any and whatsoever damage, charge, claim, expense, or cost (including legal) correlated/connected to the aforementioned suspension/interruption of Services.

6. Content of the Services

6.1. With respect to the Services, the Client undertakes: i) not to enter any content which is unlawful and/or defamatory in nature and ii) to ensure the legality of any and whatsoever content being entered or otherwise published by virtue of the Services in respect of any and whatsoever law or regulation applicable thereto, including any of the laws and regulations on intellectual and industrial property, advertising and commercial communication, competition, privacy and personal data protection. In regard to the above, the Client undertakes to i) conduct any and whatsoever preventive checks on the content provided by the Client to MotorK, and ii) verify, prior to publication where possible or even after publication, and modify and/or request the deletion of any content provided by MotorK and/or published by the latter within the scope of the Services, for the purpose of guaranteeing the legality thereof under this article. Should the Client submit no such request to MotorK to modify and/or delete the content, as per point ii), MotorK shall deem such content approved by the Client, and shall not therefore be held liable in the event of infringement of any and whatsoever law or regulation applicable thereto, including but not limited to, those applicable to advertising and commercial communication, competition, privacy, and personal data protection.

6.2. The Client acknowledges and accepts to be exclusively liable i) for the data and/or the content, of whatever nature, published by the Client and/or by MotorK on behalf of the Client within the scope of any Service, including, but not limited to, any documents and sections being required by law, cookie banners, cookie policy, consent forms and privacy policy, data/content relating to vehicles’ fuel consumption and/or emissions, and any requirement to update the same in light of regulatory changes and/or changes to the Services and ii) for any mistakes or omissions in the entering of any data and/or content into the Services, irrespective of the nature thereof, connected thereto, which are required by law, including, but not limited to, cookie banners, cookie policy, consent forms and privacy policy, data/content relating to vehicles’ fuel consumption and/or emissions.

6.3. Without prejudice to the above, the Client undertakes henceforth to indemnify and hold each and every of the companies within the MotorK Group, as well as their representatives, employees, associates, and commercial partners harmless from any and whatsoever damage, charge, claim, expense, or cost (including legal) and any and whatsoever loss and liability towards third parties, which may in any way be connected to and/or arising out of the breach of the foregoing articles and from the use of the Services on the part of the Client including pursuant to articles 14, 15, 16, and 17 of Legislative Decree No. 70/2003, as amended and supplemented, and pursuant to Legislative Decree 196/2003, as amended and supplemented (“Privacy Code”) and/or any other national legislation concerning the protection of personal data, the Regulation, and any other Community or national law and regulation applicable with respect to the activities of the Client.

6.4. Unless otherwise stated in the Agreement with regard to the Client’s liability with regard to data and content, the Client represents and warrants that in the 10 (ten) years prior to the signing of this Agreement it did not receive any complaint and/or penalty and/or fine from any third party, and it did not sign any agreement and/or undertaken any and whatsoever obligation towards any third party, including the competent authorities and any consumer protection association. Furthermore, should the Client receive any form of complaint and/or penalty and/or fine from third parties, the Client i) undertakes henceforth to immediately inform MotorK of the specifics of such complaint and/or penalty and/or fine, and ii) undertakes to agree in writing with MotorK on any action that should be taken in response of the aforementioned complaints, penalties, or fines, and on any changes to the Services and/or the data and contents connected thereto. Should the Client, by way of example but not limited to, respond to the complaints and/or sign agreements and/or undertake any and whatsoever obligation with any third parties, including the competent authorities, without having first informed and agreed with MotorK on how to proceed, the Client acknowledges and accepts that MotorK may not, for any reason whatsoever, be held responsible or found liable for any and whatever detrimental consequence, including the payment of penalties or sums on any other account, deriving from the decisions taken by the Client. In such regard, the Client shall indemnify and hold MotorK harmless from any damage, charge, claim, expense, or cost (including legal) that may arise out of the above complaints and/or penalties and/or fines or similar, waiving henceforth the right to raise any and whatsoever claim in such regard against MotorK, including by way of reimbursement or compensation.

7. Exclusion and Limitation of Liability of MotorK

7.1 The Client henceforth acknowledges and accepts that, in the performance of the Services and for the purpose of providing a better service to the Client, MotorK may make available and/or publish on the Client’s own channels (including, but not limited to, social media channels and/or website) any data and/or content or any other commercial communication concerning the Services and/or in any way connected to the Client and the products offered by the latter, as received by third party providers (including, but not limited to, from car manufacturers and providers specialised in this type of content) (“Contents and Communications”). Unless otherwise provided for in the Agreement, with respect to the Contents and Communications, MotorK i) shall only provide and/or publish the Contents and Communications received from third parties; ii) shall not make any guarantees, it being understood that the Client shall be exclusively in charge of making any checks as may be required, including in terms of compliance with the applicable laws and regulations; iii) shall not under any circumstances be held liable in the event of any complaints and/or any other type of harmful consequences arising out of the supply and/or publication of the Contents and Communications. The foregoing may not, under any circumstances, be interpreted to constitute a reversal of liability in connection to the Contents and Communications, which rests exclusively upon the Client, as per the Agreement. Therefore, the Client undertakes to check the foregoing, including through the assistance of advisers, and to approve it or submit, including via e-mail, a written request for modifications, and henceforth waives any and all claims in such regard, including any claims for reimbursement or compensation, against MotorK.

7.2 The Parties acknowledge and accept that MotorK shall not in any way be held liable for any non-performance, delay, suspension and/or interruption in the provision of the Services due to events not ascribable to the wilful misconduct or gross negligence of MotorK, including, but not limited to, events of force majeure; wilful misconduct, negligence, imprudence, or inexperience of third parties and/or the Client; malfunction of the Internet and/or any other tool which is necessary to make use of the Services lying outside the control and the responsibility of MotorK.

7.3 With the exception of cases of wilful misconduct or gross negligence, and without prejudice to the foregoing, the Client henceforth accepts that any compensation due by MotorK to the Client for damages suffered by the latter on account of the Services i) shall be in any case limited exclusively to the damages that come as the immediate and direct consequence of the failed, delayed, or faulty provision of one of the Services (with express exclusion of indirect damages) and ii) may not in any case exceed the amount of the Consideration, as defined hereinafter, paid by the Client to MotorK in the 12 (twelve) months prior to the damage.

8. Consideration

8.1. In consideration of the provision of the Services, the Client undertakes to pay to MotorK: i) where applicable, an Activation Fee (duly due in case the scope of the Agreement includes the Implementation Period), shall be specified in the Annexes and identified as such and ii) a compensation for the provision of the Services starting on the Go Live Date or other valid date as stated in the Annexes (“License Fee”. More generally, all the amounts due by the Client to MotorK for the provision of the Services are hereinafter referred to as “Consideration”). It remains expressly understood that in case the scope includes several Products/Services, the Client shall start paying the Licence Fee starting from the licence start date as indicated in the relevant Order Form, as long as at least one of the Products/Services is ready.

8.2. . Unless otherwise agreed upon between the Parties and set out in the Annexes, the Amount shall always be invoiced in advance and in accordance with the terms and timing specified in the Annexes. The Client undertakes to make payment within the period stated in the invoice, which shall be deemed an essential term for the purposes of the Agreement.

8.3. The Client henceforth acknowledges and accepts that, over the course of duration of the Agreement: i) MotorK may at any time unilaterally change the above invoicing deadlines for payment of the Consideration, subject to prior notice in writing to the Client, including via e-mail or Other Information Technology Communication Media, as defined below and ii) MotorK reserves the right to group together and issue in advance invoices in accordance to a plan to be communicated to the Client, including via e-mail or Other Information Technology Communication Media. MotorK’s exercise of the rights under point ii) shall not require any changes to the payment deadlines set out in the Annexes mutually agreed upon beforehand, which the Client undertakes to comply with irrespective of MotorK’s exercise of the right provided for under point ii) above. The Client acknowledges and accepts that the terms under points i) and ii) above shall not under any circumstances constitute a cause for withdrawal or termination of the Agreement by the Client.

8.4. Should the Client ask MotorK to issue invoices only after the issuing of a purchase order or other similar instrument on the part of the Client, the Client undertakes henceforth to issue such purchase order at least 30 (thirty) days prior to any deadline set out in the Annexes. Should the Client fail to comply with said deadline, MotorK may in any event issue the invoice, and the Client shall make the relative payment within the time-limits set out above.

8.5. All the amounts paid late shall be subject to interest for late payment under Legislative Decree 231/2002, and the Client expressly waives any and whatsoever right to offset said amounts.

8.6. Without prejudice to the terms and conditions set out in the following article, in the event of the Client’s failure to pay the Consideration, or in case of a delay exceeding 15 (fifteen) calendar days, MotorK shall have the right to suspend and/or interrupt the provision of the Services, and such interruption and/or suspension shall not constitute breach on the part of MotorK, and the Client may not raise any claims for compensation on such grounds. In this case, MotorK may request the immediate payment of any sums due by the Client for the Services hitherto provided by MotorK, and the Client undertakes henceforth to discharge said payment within 3 (three) days. Should the Client’s failure to make any due payment exceed 45 (forty-five) days, MotorK shall have the right to terminate the Agreement under the terms and conditions set out in the “Withdrawal and Termination” clause below.

9. Changes to the Services and Variation of the Financial Terms and Conditions

9.1 MotorK shall, at any time – on account of technical or management events that may require it – have the right to make changes to the Services, subject to prior notification to the Client, who shall receive communication of such amendments or additions via e-mail and/or Certified E-mail and/or registered letter with proof of receipt, or other information technology communication media in place between MotorK and the Client which may be introduced over the course of duration of the Agreement (including but not limited to, pecflow, dedicated portals, etc.) (“Other Information Technology Communication Media”), to which the Client undertakes to promptly respond in writing.

9.2 The Client acknowledges and accepts that i) the addition of new Service functionalities or modules may entail an increase in the Consideration for the Services, which – where the implementation thereof is requested or accepted by the Client – shall automatically apply as of the first time the new functionalities and/or modules are used by the Client and/or ii) any requests for modifications or customisations of the Services requested by the Client shall always be subject to an additional quote, which shall be added to the Consideration and agreed upon through a dedicated Annex. If, after examining the Client’s request, MotorK should conclude that no additional consideration is due for said modifications or customisations, the same may also be agreed upon via Other Information Technology Communication Media, including, but not limited to, via e-mail.

9.3 MotorK shall, at its sole discretion, and according to the modalities set out in article 9.4 below, have the right to make the following changes to the Services: (i) release of new products, similar to those already provided; (ii) material changes to Services according to the articles 9.1 and 9.2; (iii) technological improvements of Services already provided; and (iv) migration from Services to other similar products provided by MotorK, which may include, but are not limited to the WebSparK and LeadSparK products/the Training & Coaching service.

9.4 Regarding the amendments set forth in article 9.3, MotorK undertakes to notify the Client of such changes via e-mail and/or Certified E-mail and/or registered letter with proof of receipt, at least 30 (thirty) calendar days prior to the effective date of such amendments. Upon such notification, the Client shall not have the right of early withdrawal from the Agreement.

9.5 Any conditions mandated under any measures issued by the competent public authorities are intended as automatically included in the Agreement, and any clauses which may be incompatible therewith are intended as revoked.

9.6 The Client acknowledges and accepts that, for every 12- (twelve-) month period of duration of the Agreement, the Consideration under the Agreement shall be increased, at the beginning of each year of the duration of the Agreement, by the same rate of inflation recorded over the last 12 (twelve) months, and, in any event, by no less than the rate of 2.5% per year (“Increases”).The Increases under this Article shall be automatically charged to the Client without requiring any prior notification, as they are deemed to be accepted by the Client with the signing of this Agreement. The Increases shall not under any circumstances be deemed grounds for termination of or withdrawal from the Agreement.

9.7 Without prejudice to the foregoing, MotorK reserves the right to unilaterally modify the terms and conditions of contract, including the Financial Terms and Conditions at its own discretion (“Variations”), by notifying the Client, at least 30 (thirty) calendar days prior to the date of validity of the Variations, via Certified E-mail, registered letter with proof of receipt, or Other Information Technology Communication Media, to which the Client undertakes to always respond by using one of the above communication media to confirm receipt or exercise the right of partial withdrawal as detailed below; to this end, MotorK undertakes to include, in the notification sent to the Client as provided for above, an express reference to the right of the Client to withdraw from the Agreement, as further detailed below. By continuing to use the Services after expiry of the above notice period for the Variations, the Client accepts the Variations, unless it exercises the right of withdrawal, described below, before such Variations become valid. More specifically, as a single exception to the provisions set out in the Agreement, the Client may notify MotorK of its intention to partially withdraw from the Agreement, exclusively with respect to MotorK’s service being subject to the Variations, by and no later than the date proposed for the Variations to become effective. Where the Client exercises the right to partially withdraw on account of the Variations under this article, the Agreement shall no longer be valid exclusively with respect to MotorK’s service being subject to the Variations.

9.8 MotorK, at its sole discretion, reserves the right to discontinue the provision of any and whatsoever Service, including, but not limited to, where it should deem that such Service has become technologically outdated. In this case, MotorK shall have the right to unilaterally terminate the Agreement subject to prior written notice sent to the Client including via e-mail. In this case, the Client henceforth acknowledges and accepts that it shall have no claims against MotorK on account of the discontinuation of the Service, including any claims for reimbursement or compensation.

10. Intellectual Property

10.1 For the purposes of the Agreement, the term “Intellectual Property Rights shall mean any and whatsoever intellectual and property right, whether registered or unregistered, including, by way of example and not limitation, copyright, trademarks, design and domain names, and software.

10.2 Any Intellectual Property Right over the Services, as well as any improvement thereof and/or updates thereto including when taking place over the term of validity of the Agreement, is and shall continue to be the exclusive property of MotorK Italia S.r.l. with registered office address at via Ludovico D’Aragona, 9, 20132 Milan (MI), Italy, VAT Number – 07134830962.

10.3 The Client undertakes not to engage in any conduct which may infringe or in any way negatively affect the Intellectual Property Rights of MotorK and/or its assignees, and expressly acknowledges that it shall not acquire any industrial and intellectual property rights over the Services, and shall not have access to any source code for the software, unless otherwise set out in the Agreement and/or the Annexes.

10.4 In regard to the Services, MotorK grants the Client a non-exclusive license for the Intellectual Property Rights necessary to use the Services under the Annexes exclusively for the purposes and for the duration of the Agreement and against full and due payment of the Consideration as set out in the Agreement and relative Annexes; upon termination of the Agreement, irrespective of the reason thereof, the Intellectual Property Rights over the services, and any and whatsoever right connected/related thereto shall continue to be in the property of MotorK, and the Client undertakes henceforth to discontinue any utilisation thereof, and see to the restitution and destruction of any and whatsoever material, medium and/or copy of anything relating to MotorK’s Services, with the sole exception of the contents and/or the data provided by the Client and published by MotorK in the performance of the Services.

10.5 The Client i) undertakes henceforth not to challenge, in any manner and on no grounds whatsoever, the validity and/or effectiveness of the Intellectual Property Rights of MotorK, and ii) acknowledges and accepts that under no circumstances shall the technical and commercial know-how of MotorK be intended to have been licensed under the Agreement, and that therefore such know-how is and shall continue to be the exclusive property of MotorK.

10.6 The Client henceforth authorises MotorK to mention the Client and its Intellectual Property Rights and anything that it may be realized within the scope of the Agreement, for promotional and advertising purposes in connection to MotorK’s activities on MotorK’s own website and official channels, including social media pages, press releases concerning its activity, showreels and documents aimed at taking part in public and private tenders, and any other promotional document pertaining to and/or in any way connected to MotorK’s activity.

11. Withdrawal and Termination

11.1 Unless otherwise stated in the Agreement, the Client acknowledges and accepts that MotorK shall, at any time, have the right to withdraw from the Agreement subject to prior notice to the Client, sent via registered letter with proof of receipt and/or Certified E-mail to the addresses indicated by the Client in the Annexes, at least 30 (thirty) calendar days in advance, during which time MotorK shall have the right to obtain the Consideration, and the Client shall have the right to receive the Services until the effective date of termination of the Agreement by reason of the exercise of the right of withdrawal.

11.2 Save as otherwise stipulated in the Agreement, the Client shall not have the right of early withdrawal from the Agreement, by way of express derogation from the applicable provisions of law. Without prejudice to the above, the Client acknowledges and accepts that should it request to interrupt and/or not to start the provision of the Services prior to the Go Live Date in breach of this article, in addition to the remedies of law the Client shall in any case owe a penalty: i) an amount equivalent to the set-up fee and/or activation fee, where provided for in the Annexes and/or ii) an amount equivalent to 4 (four) monthly instalments as quantified in the Annexes, at the discretion of MotorK.

11.3 The Client acknowledges and accepts that MotorK shall have the right to terminate the Agreement by simply notifying the Client in writing via registered letter with proof of receipt and/or Certified E-mail where the Client is in breach of its obligations under the Agreement and fails to remedy such breach within 15 (fifteen) calendar days after receipt of written notice from MotorK (where such breach can be remedied), including, but not limited to, the Client’s obligations to cooperate/collaborate.

11.4 The Client acknowledges and accepts that MotorK shall have the right to terminate the Agreement, with immediate effect, by simply notifying the Client in writing via registered letter with proof of receipt and/or Certified E-mail under Article 1456 of the Civil Code should the Client i) be over 45 (forty-five) days late in making a payment of any Consideration including relative to even just one of the Services, ii) breach even just one of the obligations bearing upon the Client under the Articles titled “Services Continuity” (Art. 5), “Intellectual Property” (Art. 10), “Confidentiality (Art. 14) and “Code of Ethics” (Art. 15).

12. Personal Data Protection

12.1 For the purposes of the Agreement, the term Privacy Law shall include the Privacy Code, the Regulation, the measures issued by the competent supervisory authorities, also including injunctions and penalties applicable to the Services and any other national law and regulation on the protection of personal data and applicable to the processing of data under the Services.

12.2 The Parties expressly undertake, each within the scope of their competence, to comply with the Privacy Law in respect of the personal data for which each of them is the Controller, and both Parties acknowledge that the compliance with personal data protection obligations and the protection of personal data and information is of the utmost importance for both Parties. The Parties furthermore undertake to ensure that the above Privacy Law is complied with also by their respective employees, agents, and sub-contractors.

12.3 Pursuant to and by effect of Article 13 of the Regulation, in its capacity of Controller MotorK informs the Client that all the personal data provided directly by the Client or which MotorK may acquire for the performance of the Agreement and in any way connected to the same Agreement, relating to the Client’s own members of staff and associates or third-parties, shall be subject to processing operations, whether automated or not, exclusively for i) management and administrative purposes pertaining to MotorK’s compliance with contractual and legal obligations; ii) (relative to the Client’s e-mail details only) for the purpose of selling a product or a service, similar to the Service purchased by the Client, on the basis of the legitimate interest of MotorK under Article 130.4 of the Privacy Code, and, lastly, iii) for promotional purposes relative to additional Services offered by MotorK (and/or its partners) and to conduct market surveys and/or improve the Services and/or customer satisfaction surveys, exclusively when the Client has given express consent thereto, as further detailed in the Client Privacy Policy.

12.4 The Parties acknowledge and accept that should the Services under the Agreement entail MotorK to conduct operations for the processing of personal data of which the Client is the Controller, the Client shall appoint MotorK as processor and/or sub-processor under Article 28 of the Regulation, through a dedicated DPA in line with the standard form provided by MotorK, which shall form an integral and substantive part of the Agreement – irrespective as to whether or not it is signed by the Client, and which the Client henceforth undertakes to examine in detail, and shall be intended as accepted in full upon acceptance of the Annexes – including with respect to any processing activities prior to the acceptance of the same and/or to any testing activities. The Parties furthermore acknowledge and accept that should the Services include the transmission, from MotorK to the Client, of personal data which were initially collected by MotorK and/or third party providers of MotorK acting in the capacity of Controllers, and for which the Client became the Controller only subsequently, shall be subject to the special terms and conditions set out, with respect to the processing of personal data, in the Annex shared by MotorK in this regard.

12.5 The Client expressly acknowledges and accepts that MotorK may add, as part of the Services, any cookies and/or other types of analytics and/or profiling identifiers (including, but not limited to, Google Analytics, Hotjar, and Satismeter), for the purpose of monitoring, in the capacity as data Controller, the performance of the Services and/or the behaviour of data subjects within the context of the Services.

13. Assignment

13.1 The Client may not assign the Agreement or any of the rights therein provided without the prior written consent of MotorK.

13.2 MotorK may assign the Agreement and any of the rights therein provided without the prior written authorisation of the Client, by simply notifying the Client in writing.

14. Confidentiality

14.1 The Parties mutually acknowledge that in the performance of the Agreement they may exchange confidential information or information of a technical and/or commercial nature relating to one Party and/or the activity such Party carries out or intends to carry out, which may be communicated or otherwise made available to the other Party, and which may include, by way of example and not limitation, any designs, inventions, prototypes, samples, any production processes applied and/or their relative stages, any products, databases, know-how, any industrial, commercial, sales, business, marketing, and pricing development strategies, price lists and discounts, costs, special conditions of supply, suppliers and distributors lists, non-public financial information, creative/ideational lines, and any technical, commercial, and organisational knowledge regarding the activity, organisation, and structure of the company (“Confidential Information”).

14.2 The Parties undertake to keep all the Confidential Information which they may have come to their knowledge within the scope of the relations between the Parties under the Agreement as strictly private and confidential. Therefore, the Confidential Information may not be disclosed to third parties, whether in full or in part, in writing or orally or in any other form, unless expressly authorised to do so in writing by the Party who is the owner of such Confidential Information.

14.3 Should one of the Parties share one or more of the Confidential Information concerning the other Parties with its own employees, associates, advisers, sub-contractors and/or any other third party who may be involved in the performance of the Services or in any way collaborate thereto, the receiving Party undertakes to ensure that the above persons undertake the same confidentiality obligations under this article. In any case, each Party undertakes to indemnify and hold the other Party harmless from any damage, charge, claim, expense, or cost (including legal), direct or indirect, which may in any way arise out of a breach of the confidentiality obligation by any of the aforementioned third parties.

14.4 Should one of the Parties be required to disclose the Confidential Information, the same Party shall promptly provide written notice thereof to the Party who owns such Confidential Information, so that the latter Party may be in the condition to prevent the disclosing of Confidential Information pursuant to and by effect of the applicable laws.

14.5 If any of the Confidential Information were to be copied, communicated, or used for purposes other than those authorised under the Agreement, the Party who gains knowledge of such copying, communication, or use, undertakes to promptly send written notice thereof to the Party who owns said Confidential Information (without prejudice to the rights and remedy available to such Party), and, on request by the same, shall carry out any action (including before a judicial authority) as may be necessary to remedy the unauthorised dissemination of such Confidential Information or to inhibit the unauthorised copying, communication, or further use thereof.

14.6 The Parties mutually acknowledge that any breach or attempted breach of the confidentiality obligations under this section of the Agreement shall cause an irreparable damage to the Party owner of the Confidential Information. In addition, the Client accepts that MotorK shall have the right to obtain, in application of the law, ante causam protective and/or interim measures, and a temporary, preliminary, and permanent injunction for the purpose of restraining and preventing such infringement, a threat of infringement, or any other further infringement without the requirement to provide evidence of damage; the right to obtain an injunction measure, however, is additional and supplemental to any other remedy which may be afforded by law to the Party owner of Confidential Information, including also compensation for any further damages.

14.7 The Parties acknowledge that the Confidential Information may constitute privileged information for the purposes of the Market Abuse Regulation (EU) No. 596/2014 (“MAR”). Therefore, the Parties mutually undertake to comply with the applicable provisions under the MAR and with the measures issued by the competent authorities.

14.8 It is understood between the Parties that this confidentiality obligation shall survive the termination of the Agreement, irrespective of the grounds for such termination, for a period of 5 (five) years after termination, and, in any event, until the Confidential Information is eligible for protection as secret information under the applicable laws and regulations, and remain in the possession and under the control of the Party who owns such Confidential Information.

15. General Provisions

15.1 Any communication between the Parties shall be in writing to the addresses provided in the Annexes or via registered letter with proof of receipt, Certified E-mail, and/or e-mail. The Client’s communications to MotorK shall be sent to the addresses provided below, or to any other address which MotorK may provide to the Client through the Annexes and/or after the valid date of the Agreement in compliance with the above:

MotorK Certified E-mail (PEC): drivek@pec.it.

15.2 By signing the Agreement the Parties do not intend to set-up any partnership or joint venture, nor do they intend to establish an agency relationship.

15.3 Upon expiry of the Agreement and in any event of early termination, irrespective of the reason thereof, MotorK shall disable the Services, and shall therefore permanently discontinue, without further notice, the provision of said Services

15.4 Any tolerance by one of the Parties of any conducts carried out by the other in breach of any of the provisions contained in the Agreement shall not constitute a waiver of the rights deriving from the breached provisions or of the right to demand proper performance of all the terms and conditions of the Agreement.

15.5 Any failure to exercise or delay in exercising a right to which a Party is entitled under the Agreement shall not constitute a waiver to such right.

15.6 The invalidity or unenforceability of one or more of the provisions of the Agreement shall not invalidate the remaining provisions of the Agreement or make such provisions unenforceable.

15.7 The Parties agree that the electronic documents stored in the information technology systems of MotorK, including the e-mails and/or messages sent through instant messaging systems shall be deemed valid evidence of the communications taken place between the Parties.

15.8 The Parties acknowledge and accept that the Agreement may be validly signed including through the use of electronic signatures (including simple electronic signatures provided through DocuSign, Adobe Acrobat, or other similar tool), and that said signatures shall have the same validity as handwritten signatures. Once an electronic signature is placed, including in case of simple electronic signature, the Client undertakes not to challenge the validity thereof. With respect to the above, the Client i) represents and warrants that the Client’s representatives who shall see to the terms and conditions of the Agreement and the negotiation thereof have the powers and the knowledge to provide to MotorK the e-mail address that should be used for the electronic signature process, and ii) undertakes to indemnify and hold MotorK harmless from any and whatsoever damage, charge, claim, expense, or cost (including legal) arising out of errors made by the aforementioned representatives, and, in any event, out of the Client’s management of the electronic signature process.

15.9 Unless otherwise provided in the Agreement, any changes to the terms and conditions of the Agreement shall be agreed upon by the Parties and shall only be valid in writing.

16. Applicable Law and Jurisdiction

16.1 The Agreement is entirely governed by Italian Law.

16.2 Any disputes that may arises in relation to the interpretation, execution, validity, existence and/or any other circumstances relating to the Agreement and/o in any case concerning circumstances related to the Agreement shall be subject of the exclusive jurisdiction of the Court of Milan.

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Pursuant to and by effect of Articles 1341 and 1342 of the Civil Code, by accepting the Agreement the Client expressly approves the following Articles of the GC: Artt. 1.3, 1.5, 1.6 “Object, Definitions and Duration”, Art. 3 “Obligations and Guarantees of the Client”; Artt. 4.1, 4.4 “Service Provision Method”, Art. 5 “Service Continuity”; Art. 6 “Contents of the Services”; Art. 7 “Exclusion and Limitation of Liability of MotorK”; Art. 8.4 “Consideration”; Art. 9 “Changes to the Services and Variation of the Financial Terms and Conditions”; Art. 10.2 “Intellectual Property”; Art. 11 “Withdrawal and Termination”’; Art. 13 “Assignment”; Art. 14 “Confidentiality”; Artt. 15.7, 15.8 “General Provisions”; Art. 16 “Applicable Law and Jurisdiction”.