General Terms and Conditions for Services in Favor of Publishers
All terms not otherwise defined in these general terms and conditions shall have the meaning set out below:
“Back-End”: means all servers managed and operated by N4R for the provisioning of the Services.
“Chat Data”: means chat messages published on the pages of the Website by End Users via the Software and Real-Time Services.
“Confidential Information”: has the meaning set out in Article 16 of these general terms and conditions.
”Custom Authentication”: means a procedure by which End Users who authenticate on the Website are automatically authenticated on the Real-Time Services.
“Dashboard”: means the user interface dedicated to the Publisher and hosted on N4R website, through which the Publisher may, among other things and depending on the Subscription, manage its profile, manage its methods of payment, access its own invoices and receipts, view or download Services usage metrics, view or download Chat Data.
“End Users”: means the end users accessing the Publisher’s Website.
“Enterprise Subscription”: means the subscription for Services as better described in Exhibit A.
“Fees”: means the consideration, if any, due from the Publisher to N4R for the use of the Software and of the Services as better set out in Article 8 below.
“Force Majeure”: means any event, action, fact or circumstance unforeseeable and non attributable to the Party invoking it that it was not possible to prevent or limit using the ordinary diligence and such as to make it impossible to fulfill in whole or in part some of the obligations arising out this agreement. By way of example only and without limitation and provided that the aforesaid requirements are met, the following events are considered as causes of Force Majeure: (i) general and sector national and local strikes (other than company strikes); (ii) wars or other acts of hostility, including terrorist actions, sabotages, vandalism, thefts, riots, insurrections and other civil turmoil; (iii) blocks or embargos; (iv) exceptional adverse natural phenomena, including lightning, tornados, explosions, earthquakes, fires, floods, overflows, inundations, drought, volcanic eruptions, adverse weather conditions preventing Service performance; (v) abnormal conditions of the Internet preventing normal operation; (vi) any legislative modifications or the revocation, annulment, expiry or suspension of any authorization, permit or license or any decisions of any competent authority not attributable to the Party invoking the Force Majeure event.
“Free Subscription”: means the subscription for Services as better described in Exhibit A.
“Intellectual Property Rights”: means inventions, patents, utility models, design rights, ownership of database and copyrights, know-how, Software and design data, marks, trademarks, copyrights on trade names, designs, labels and related graphic material, logos, trade names (whether registered or not), formulas, operating instructions, manufacturing specifications and the relevant goodwill and registration applications relating thereto as well as any right or form of protection of a similar nature with equivalent or similar effect as any of them that may exist anywhere in the world.
“N4R”: means Now4real S.r.l., with registered office in Viale Andrea Doria No. 7, 20124 Milan, Italy, registered with the Register of Enterprises of Milan, VAT No. 10328990964.
“Party” or “Parties”: means N4R and the Publisher jointly or each of them individually.
“Premium Subscription”: means the subscription for Services as better described in Exhibit A.
“Publisher”: means the legal entity or natural person using the Services for one or more Websites.
“Real-Time Analytics”: means the anonymous real-time statistical data collected by N4R via the Software and Back-End, namely the counters of End Users who view pages of the Website or are engaged in chats and the distribution of the countries of origin of End Users.
“Real-Time Services”: means live chat and analytics services made available to the Website End Users through the use of the Software and Back-End, as well as general analytics made available on N4R site.
“Services”: means Real-Time Services, supply of the Dashboard, Update Service and Support Service.
“Software”: means the software developed by N4R consisting of the Client API and the Widget and offered in SaaS (Software as a Service) mode for the supply of Real-Time Services, which can be integrated in the Website pages in order to enrich the Website user experience of the Publisher’s End Users.
“Software License”: means the license to use the Software, as specifically governed by these general terms and conditions.
“Subscription”: means the subscription, chosen by the Publisher, among Free Subscription, Premium Subscription and Enterprise Subscription, pursuant to Article 3 below.
“Support Service”: means the technical support service provided by N4R in relation to problems and questions that the Publisher may have in relation to the use of the Software and Dashboard.
“Update Service”: means the release of new versions of the Software or Back-End, made available by N4R directly to End Users during the term of this agreement.
“Upgrade”: has the meaning set out in Article 7.
“Website”: means the website owned or legally held by the Publisher within which the Services are used.
2.1. By accepting these general terms and conditions, upon the Publisher’s registration to N4R site (i.e. creation of an account on the Dashboard) or when the N4R script is incorporated into the Website, the Publisher accepts the provision of Services, through the Software, according to the Subscription chosen, on the terms and conditions set out below.
2.2. In addition and in relation to the foregoing, by accepting these general terms and conditions and regardless of the Subscription chosen by the Publisher, N4R grants the Publisher the Software License. All the foregoing on the terms and conditions under these general terms and conditions.
2.3. The assignment by N4R to the Publisher of any Intellectual Property Right belonging to N4R, including these related to the Software, is expressly excluded.
2.4. In order for End Users to have access to and use the Services within the Website, End Users will/may be previously requested to accept the contractual terms and conditions prepared by N4R and to complete the registration procedure. In this latter respect and for the sake of clarity, the agreement to access and use the Services by End Users through the Website is concluded directly between N4R and the End Users and, therefore, N4R shall be the one and only contracting party for End Users in relation to the use of the Services.
2.5. Parties expressly and mutually acknowledge that in no event the execution of this agreement may imply the granting of any proprietary right to the Publisher and, as a consequence, N4R shall remain totally free to provide to third parties services similar or even identical to the Services under this agreement.
2.6. N4R is and shall remain the owner of all property rights and rights of use on Real-Time Analytics. The Publisher accepts that Real-Time Analytics be publicly shown through the Widget or the Client API on the Website and through specific pages directly hosted on N4R site or on other sites, unless the Publisher has restricted the visibility of Real-Time Analytics via the Custom Auth feature, as detailed in Exhibit A. N4R may show on a real-time basis ranking-lists of the websites and web pages with the greatest numbers of End Users, also in relation to other Publishers. The Publisher acknowledges and agrees that Real-Time Analytics and Chat Data are inherently public, unless the Publisher has restricted their visibility via the Custom Auth feature, as detailed in Exhibit A. The Publisher acknowledges and agrees that the URL (Uniform Resource Locator) of any web page where the Software is integrated may be publicly shown.
3. Subscription Plans
3.1. When accepting the following general terms and conditions, the Publisher shall choose which Subscription to take out with N4R among the following:
- “Free Subscription”;
- “Premium Subscription”; and
- “Enterprise Subscription”.
3.2. For the entire duration of this agreement, the Publisher is entitled to request an amendment of the Subscription taken out with N4R to be made online through the Dashboard or by means of notice pursuant to Paragraph 21.4 below.
4. N4R’s Obligation in Relation to the Software
4.1. N4R shall in no way be held liable – unless in case of willful misconduct and gross negligence or in those cases where liability is excluded pursuant to the applicable law – for damages suffered by the Publisher or for any inoperability or malfunctioning of the Software or for the malfunctioning or delay of the Service. Furthermore, in no event N4R shall be liable for any indirect, incidental, punitive or consequential damages (including without limitation loss of use, data, business or profits or costs of cover).
4.2. The Publisher agrees that the service is provided “as is” and that – to the maximum extent permitted by the applicable law – N4R expressly disclaims all, expressed or implied, warranties, including but not limited to, legal guarantee, warranties of merchantability and fitness for a particular purpose. N4R does not warrant that the service or any updates will meet the Publisher’s specific requirements or that the operation of the Service or of the Update Service will be completely error-free or uninterrupted. N4R shall not be liable to the Publisher for any inoperability of the service or for any loss of information or other injury, damage or disruption of any kind.
4.3. Without prejudice to the provisions of paragraphs 4.1 and 4.2 above, N4R’s maximum liability shall not exceed the Fees paid by the Publisher to N4R in the previous 12 months for the Service that caused the damage.
4.4. N4R represents and warrants as follows:
- To have the know-how, all the resources and the technical and organizational capacities necessary to ensure due and proper fulfillment of the obligations undertaken pursuant to this agreement;
- To have and hold all authorizations, permits and/or licenses necessary and required by any legislation in force for the purposes to carry out the activity that is the subject-matter of this agreement as well as any and all authorizations and approval by third parties in order to possibly use the Intellectual Property Rights of said third parties; and
- That the Software does not contain harmful code (e.g., self-propagating program instructions such as viruses or worms).
5. Update Service
5.1. N4R undertakes, for the entire duration of this agreement, to provide the Publisher with the Update Service and, as a consequence, to make available to the Publisher and, consequently, to End Users, at its sole and final discretion, any improvements, developments, updates, evolutions and/or amendments made by N4R to the Software and Back-End.
5.2. Should an update issued as part of the Update Service cause the removal of preexisting functions or the incompatibility with the previous version of Client API, N4R shall inform the Publisher with a notice of at least 10 days from the date of release of said update.
6. Support Service
6.1. For the entire duration of this agreement, N4R shall provide the Publisher with the Support Service, if contemplated by the Subscription chosen. Support Service will be provided by email. The Publisher shall write to the address firstname.lastname@example.org, specifying the email used when creating the account and describing with sufficient detail the problem arisen. N4R will make its best effort to reply as soon as possible but gives no warranty as to response and problem resolution times.
7. Activities Excluded from This Agreement
7.1. Save as provided for below, N4R shall not be obliged to provide the Publisher with maintenance for the correction, adaptation or evolution of the Software (including adjustments for new operational environments, functional adders, etc.) or to make available any innovations – compatible with the Software – that N4R may develop within the company (all the foregoing, hereinafter the “Upgrade”).
7.2. Therefore, any Software Upgrade that N4R should develop and which shall not be included in the scope of the Update Service may be licensed to the Publisher only subject to the conclusion of a new ad hoc agreement between the Parties.
8. Publisher’s Account and Registration of Websites
8.1. In order to enable the Publisher to use all Services contemplated by the Subscription chosen, the Publisher may be requested to register choosing an email and a password, as well as completing its profile inserting all requested information according to the indication of the forms provided in the Dashboard.
8.2. When creating an account, the Publisher must provide accurate and complete information. The Publisher is solely responsible for the activity that occurs on its account, and must keep its password secure. To this end, the Publisher is requested to use passwords containing a combination of upper and lowercase letters, numbers and symbols. The Publisher shall never use another user’s account without permission. The Publisher must notify N4R immediately of any breach of security or unauthorized use of its account. N4R will not be liable for any losses caused by any unauthorized use of the Publisher’s account. The Publisher must keep its profile information up-to-date. Should the Publisher’s access email need to be amended, the Publisher should contact N4R.
8.3. In order to manage its Websites through the Dashboard, the Publisher will be requested to verify the ownership of each Website by means of mechanisms made available by the Dashboard.
9.1. In exchange for the provision of the Services, the Publisher shall have to pay the amounts due according to the Subscription plan chosen by the Publisher pursuant to Article 3 above, according to the terms and methods provided for therein (the “Fees”).
9.2. Premium Subscription fees shall be invoiced on a monthly basis, as detailed in Exhibit A.
9.3. The Publisher expressly authorizes N4R to automatically charge, on a monthly basis, the Fees to the payment system chosen by the Publisher.
9.4. If an automatic payment fails, the Services will be immediately suspended, until the overdue amount is paid.
9.5. All Fees are net of VAT and of any other taxes or duties payable under the applicable law.
9.6. The Publisher’s full or partial payment of the Fees will constitute the Publisher’ acceptance of the activities and Services performed by N4R and to which the relevant payment refers.
10. Software License
10.1. N4R undertakes, for the entire duration of this agreement, to grant the Publisher, on a non-exclusive and non-transferable basis, the Software License to access and integrate the Software in the Website, as well as the relevant updates thereof, if any.
10.2. The Publisher will be entitled to use the Software solely for purposes strictly connected to the access and use of the Software by the Publisher’s End Users and for the purposes under these general terms and conditions.
10.3. For the sake of clarity, this Software License shall not include the right or faculty to obtain the Software in source code form, except for the Widget, which is instead made available also as open source software, accompanied by the relevant specific license. Moreover, this Software License shall not include the right or faculty to have available logic and/or project documentation concerning the Software, which shall remain the exclusive property of N4R.
10.4. The Publisher is expressly forbidden from disposing in any way of the Software licensed by N4R and, therefore and without limitation, from transferring, assigning or sub-licensing in whole or in part the Software License to third parties or anyway from using or allowing third parties to use the Software for purposes that are not strictly connected to the operation and use of the Website or, more in general, to the use or experience of the services by End Users.
10.5. The Publisher shall not copy, reproduce, adapt, amend, decode, reverse engineer, disassemble, decompile, or translate in any way or create works derived from the Software (as well as the relevant updates thereof), except for the Widget. To the extent the law expressly grants the Publisher to carry out – in whole or in part – any of the aforesaid activities, the Publisher shall not exercise the relevant rights without giving prior written notice thereof to N4R.
10.6. Without prejudice to all the foregoing, the Publisher undertakes to immediately and duly inform N4R of any third party’s behavior, initiative or conduct which is such as to infringe (or even only to threaten to infringe) the Intellectual Property and industrial Rights owned by N4R on the Software.
11. Publisher’s Liability
11.1. N4R shall in no way be held liable in respect of the relationships existing between the Publisher (or any other company belonging to the same group as the Publisher) and End Users.
11.2. The Publisher undertakes – also on behalf of all other companies belonging to the same group as the Publisher, directly undertaking said obligation also on behalf of third parties – to hold N4R harmless and indemnified from any claim, demand, action, liability, cost, expense, damage, burden, responsibility, deriving from existing contracts or legal relationships – irrespective of the form in which they have been entered into – between the Publisher (or other companies belonging to the same group as the Publisher) and End Users. In addition to the foregoing, the Publisher represents and warrants to N4R that it has provided N4R with all the information and data necessary or appropriate for the proper fulfillment of the obligations under these general terms and conditions.
11.3. The Publisher shall be solely responsible for maintaining its own equipment and establishing its own connection via the Internet, in the interest of the proper use of the Services. In no event shall the Publisher, or any third party, use the Client API to “harvest” or read in bulk the Real-Time Analytics or the Chat Data, expose or otherwise make available the Client API, including pass-through of the Client API to third parties, nor repackage the Client API to make their functionality available to third parties. The Publisher shall take no action to interfere with the Services or with the use of the Services of N4R’s Back-End or network by any other Publisher or End User, including, by way of example and without limitation, via means of overloading, “flooding”, “mailbombing” or “crashing” the Services.
11.4. The Publisher represents and warrants to N4R that: (i) it owns, operates, or controls the Website; (ii) the Website does not contain materials that infringe or violate any third party proprietary rights including, but not limited to, third party intellectual property rights, or materials that violate any applicable laws, rules, or regulations; and (iii) the Website does not contain any harmful or disabling software code, including without limitation any virus or trojan horse.
11.5. The Publisher acknowledges and agrees that in no event N4R shall be liable for – and therefore, for any damage suffered in connection with – the messages, and the information that are publicly accessible or transmitted through the Chat Data, including possible links to other web sites or resources. For such content shall be solely and exclusively liable the End Users who originated such content.
11.6. Without prejudice to the foregoing, N4R shall not be held liable – for any reasons whatsoever – should any information or content published as part of the Chat Data be illegal or violate any mandatory provision of law or third party rights, except for the case where N4R learns about said fact and has not promptly removed it or prevented access thereto.
12. Duration of and Withdrawal from This Agreement
12.1. This agreement is binding for the Parties starting from the date of its execution and is to be considered as entered into for an indefinite duration.
12.2. Both Parties will be entitled to withdraw from this agreement, at any time, by prior written notice of at least 5 days to be sent according to the modalities set out in paragraph 21.4, without this giving rise – subject to the provisions of the subsequent paragraphs of this article – to any penalty, liability or other compensation or indemnity obligation for the withdrawing Party. Notwithstanding the foregoing, N4R may immediately and without prior notice suspend the Services in the event that continued access to Services by the Publisher may harm the Services or expose N4R to liability, or should this be necessary to comply with applicable law.
12.3. Any amendment to this agreement shall be communicated to the Publisher by N4R with a notice of at least 10 days from the entry into force of the new version of the agreement. If at the expiry of said period the Publisher has not exercised its right of withdrawal, the new agreement will be deemed accepted.
12.4. In case of Publisher’s early withdrawal from this agreement:
- the Publisher shall have to pay N4R all Fees and any other rights already accrued at the date of termination of this agreement for activities and services performed by N4R in favor of the Publisher at such date; and
- if the Fees have been paid in advance – without prejudice to the provision of the above point – the Publisher shall not be entitled to the refund of the Fees already paid and related to the Services not used by the Publisher.
12.5. In case of N4R’s early withdrawal from this agreement, N4R shall have to pay the Publisher the portion of the Fees received and related to the Services not received.
13. Termination of This Agreement
13.1. N4R will be entitled to terminate by law this agreement, by giving simple notice to the Publisher whereby N4R represents that it wishes to avail itself of the right provided for under this article, should the Publisher fail to pay the Fees under Article 9 above within the deadline set in N4R written warning.
13.2. Being the provisions below essential for this contractual relationship, this agreement shall be automatically terminated if:
- one of the Party is unable to properly fulfill its obligations and commitments under this agreement or to manage its business or to regularly carry on its activity or has become insolvent, even de facto; and
- one of the Party is subjected to enforcement procedures or to other forms of restriction on its assets affecting, or determining a serious danger for the proper fulfillment of its contractual obligations under this agreement.
14. Consequences of Cessation, Termination of or Withdrawal from This Agreement
14.1. In case of termination, withdrawal, or cessation, for any reason, of this agreement:
- the Publisher shall stop using the Software and the Software licensed pursuant to article 10 hereof;
- N4R shall stop the operation of the Software on the Publisher’s Website and shall make the Dashboard inaccessible to the Publisher, interrupting the provision of the Services;
- the Publisher – within 10 days from the cessation of this agreement – shall discontinue the use of the Software, removing from the Website the Widget and/or any Client API scripts;
- the Publisher shall pay N4R the Fees due for the Services received (and not yet paid);
- the Publisher shall be solely responsible for downloading any metrics and Chat Data through the Dashboard before the termination of this agreement; N4R shall have no obligation to make said data available after the date of termination.
15. Assignment of This Agreement
15.1. Each of the Parties is expressly forbidden to assign in whole or in part this agreement, without the prior written consent of the other Party.
16.1. For the purposes of this article 16, “Confidential Information” means any and all information disclosed in any form – including, by way of example only and without limitation, orally or in paper, electronic or magnetic format, by electronic transmission or direct view – by one of the Parties to the other Party in relation to, depending on and/or during the negotiation, execution and/or performance of this agreement, such as, by way of example only: (i) the terms and conditions of the agreement itself besides any and all information and document inherent to the negotiations that preceded its execution; (ii) any information – including, among others, any technical, strategic, economic or commercial information or datum – however relating to the company’s activities, business and/or assets of the Party concerned; (iii) all information and technical data, technical studies, analyses, compilations or any other documents or information concerning the Software, which the Publisher became aware of while performing the activities contemplated in this agreement.
16.2. Except for the disclosing obligations imposed by the applicable law, regulations or by any other provision, order or decision adopted by any competent authority whatsoever, each Party undertakes to: (i) keep strictly confidential and secret all Confidential Information and not to disclose, in whole or in part, its content to any third party both during and after the termination, for any reason, of the agreement which is the subject-matter of these general terms and conditions; (ii) to treat Confidential Information with the same degree of diligence that the receiving Party applies to the processing of its own information; (iii) not to use and/or acquire Confidential Information unless to the extent strictly necessary to perform this agreement; (iv) not to make copies of any document relating to or containing Confidential Information without the prior written consent of the Parties to which the Confidential Information refers; (v) not to use Confidential Information in a way that is prejudicial for the other Party and/or for any companies belonging to the same group as said Party; (vi) to ensure and see to it, directly undertaking said obligation also on behalf of third parties , that the personnel of the receiving Party (including, without limitation, its employees, representatives, consultants or collaborators in whatever capacity) to whom any Confidential Information is disclosed for the sole purpose to perform this agreement, use said Confidential Information in full compliance with the obligations and restrictions under this agreement.
16.3. Should disclosure be compulsory because required by provisions of laws, regulations, or by any other decision adopted by the competent authorities, the Party concerned undertakes to make all reasonable efforts in order to agree, with the other Party, which information must be disclosed within the limits strictly necessary to fulfill the obligation at issue.
16.4. The confidentiality obligations under this article shall not apply with reference to information that a Party has acquired autonomously and not as a result – or in relation to the performance – of this agreement and, anyway, not in breach of the obligations provided for herein.
16.5. The confidentiality obligations under this article shall remain in force for the entire duration of this agreement and for a period of 5 years after its termination for any cause or reason whatsoever.
16.6. In case of breach of any of the obligations under this article 16, the Publisher shall have to compensate damages in whatever form suffered by N4R.
17. Force Majeure
17.1. Except for the payment of the Fees, none of the Parties may be deemed liable for non-fulfillment or delayed fulfillment of its obligation or interruption of the Services or, more in general, for the incorrect operation of the Software should said non-fulfillment be due in whole or in part to causes of Force Majeure.
17.2. Should the Party unable to carry out the performance borne further expenses (with respect to those normally incurred to provide its services) in order to resume the fulfillment of the obligations under this agreement, the aforesaid restart of the activity under this agreement shall be subject to an agreement between the Parties in relation to the payment of the aforesaid expenses.
18. Protection of Personal Data
18.1. With regard to the personal data of each Party that may be processed during the performance of this agreement, the other Party undertakes to process said data in full compliance with the provisions of Regulation EU 2016/ 679 (“GDPR”) as well as of Legislative Decree No. 196/2003 on the processing of personal data as well as exclusively for the purposes connected to the performance of this agreement.
18.2. N4R shall not be in the possession of the data of the credit card used by the Publisher. Said data will be directly processed by the third parties Chargebee Inc. and PayPal Inc., headquartered in the United States, which shall be solely responsible for the processing of said data.
18.4. Specifically, the Publisher shall use the Chat Data made available through the Dashboard for the same purposes and with the same means applicable in the case of information made publicly available on the Internet by anyone. Any further activity that is not allowed on such basis (e.g. sending of direct promotional communications, or profiling activities) is permitted, pursuant to the applicable regulation on personal data, to the extent that suitable information under Article 13 of GDPR is provided and consent obtained whenever applicable.
18.5. In compliance with the provisions of the GDPR, personal data received by the Parties shall be exclusively processed for purposes strictly necessary to carry out the activities described and/or to fulfill the obligations imposed by the applicable law, European legislation and this agreement.
19. Use of Publisher’s Name
The Publisher grants N4R the right to publicly mention that the Publisher is a customer of N4R as well as to use, reproduce and publish the Publisher’s name and logos in N4R website and in any other marketing material – notwithstanding the media used – by N4R, without prior approval by the Publisher, all over the world.
20. Expenses, Tax and Charges
20.1. Each Party shall bear all legal, accounting or other expenses and costs, incurred directly by or at the request of the same, in relation to the negotiation, drafting and definition of this agreement.
20.2. All taxes and duties, whether present or future, of any kind, inherent to this agreement, the use of the Software or the provision of the Services, as better specified in this agreement, shall be borne by the Publisher.
20.3. Possible duties and/or costs connected to or depending on the entry into this agreement shall be equally borne by the Parties, except for the registration of this agreement, in case of use, to be made at the care and expense of the requesting Party.
21.1. Severability. Should any of the provisions of this agreement be deemed null, invalid or ineffective, said nullity, invalidity or ineffectiveness shall not imply the nullity, invalidity or ineffectiveness of the other provisions of this agreement, which, therefore, will remain fully valid and effective, unless the void clauses are essential to enter into this agreement taking into account the interests of the Parties.
21.2. Completeness of the agreement and Amendments. This agreement supersedes and replaces any previous negotiation, agreement or understanding between the Parties in connection with its subject-matter.
21.3. Tolerance. Should one of the Parties tolerate the other Party’s behavior that may represent a breach of the provisions of this agreement, this shall not constitute a waiver of the rights deriving from the breached provision or of the right to demand strict compliance with all terms and conditions under this agreement. Without prejudice to the foregoing, one of the Parties’ default or delay in the exercise of any of the rights, powers or faculties pursuant to this agreement shall operate as a waiver limited to the single case and shall not prevent said Party from exercising, even partially, any of its other rights or faculties pursuant to this agreement.
21.4. Notices. Any notice or communication between the Parties in relation to this agreement shall have to be made in writing and will be considered as effectively delivered or served if sent by registered letter or by ordinary email. The email address used for communications to the Publisher is that submitted when creating the account. The postal address used for communications to the Publisher is that resulting from the user’s profile filled in by the Publisher on the Dashboard. N4R’s addresses are the following:
Viale Andrea Doria 7, 20124 Milan, Italy
22. Applicable Law and Competent Court
22.1. Applicable Law. This agreement is subject to the application of the law of the Italian Republic.
22.2. Court with exclusive jurisdiction. Any dispute that may arise in relation to this agreement, to its amending and implementing acts, including disputes concerning its validity, effect, interpretation, performance and termination, will be submitted to the exclusive jurisdiction of the Court of Milan (Italy), with express exclusion of any other court.
22.3. Amicable attempt to settle and resolve disputes. In case of disputes between the Parties in relation to the application, interpretation and performance of this agreement, the authorized representatives of each Party shall have to promptly meet to attempt to find an amicable and shared solution to the dispute, undertaking to that end to submit in good faith proposals that take into due account the respective positions of the Parties on the disputed matter.
The Publisher represents – pursuant to and for the purposes of Articles 1341 and 1342 of the Italian Civil Code – to specifically approve the following clauses: Article 4 (“N4R’s obligation in relation to the Software”), Article 5 (“Update Service”), Article 7 (“Activities excluded from this agreement ”), Article 9 (“Fees”), Article 10 (“Software License”), Article 11 (“Publisher’s Liability”), Article 12 (“Duration of and withdrawal from this agreement”), Article 13 (“Termination of this agreement”), Article 14 (“Consequences of cessation, termination of or withdrawal from this agreement”), Article 15 (“Assignment of this agreement”), Article 17 (“Force Majeure”), Article 19 (“Use of Publisher’s name”), and Article 21 (“Applicable law and competent court”).
Exhibit A – Subscription Plans
|Price||USD 0||USD 9 per month||Custom pricing and payment terms|
|Viewing Time||Maximum 1,000 user-hours per month||
2,000 user-hours per month included
Every additional user-hour charged USD 0.0026
|Custom viewing time|
|Full Chat Transcripts||–||✓||Custom features|
|Custom Message Duration||–||✓|
|Include Counters of Other Pages||–||✓|
|Domain Aliases and Subdomains||–||✓|
|Easy Logo Customization||–||✓|
|Roles and Moderation||–||✓|
|Profanities and Filters||–||✓|
USD 19 per month
|Custom Welcome Messages||–||✓|
The Viewing Time is the total time End Users spend viewing the pages of the Publisher’s Websites in a given month. N4R only counts the time when a page is actually visible and not when it is in the background or minimized (the accuracy of such detection depends on the web browser). When a user switches the focus to another browser tab, even if the page is still open in the previous tab, the Viewing Time timer is stopped. For example, 2,000 user-hours in a month means that the Website was kept visible in any web browsers for 2,000 hours during that month, irrespective of how many different individuals alternated on the Website. For example, this could be achieved by 24,000 different End Users, each keeping the Website visible in foreground for 5 minutes a month, or by 66 different End Users, each keeping the Website visible in foreground for 1 hour a day.
To calculate the Viewing Time, a month is split in 3-minute slots. For every slot, the maximum number of concurrent viewers is stored. Consumption in user-hours for that month is calculated by summing the values of all the slots falling in that month, dividing by 20 (number of slots in an hour), and truncating. All the Websites registered by the Publisher on the Dashboard contribute to the Viewing Time.
Optionally, the Publisher can create an account on the Dashboard, add its Websites to the Dashboard, verify its Websites, and see the current consumption (but not use the Premium features until it upgrades to the Premium Plan).
The Free Plan allocates a maximum Viewing Time of 1,000 user-hours at the beginning of every calendar month. When the monthly user-hour consumption should exceed the maximum Viewing Time, the Real-Time Services are suspended. At the beginning of the next calendar month, the Viewing Time is reset and the Real-Time Services are automatically resumed.
Publishers that subscribe to the Premium Plan must create an account on the Dashboard. Accounting, billing, and invoicing are done on a monthly basis, where the first month begins from the moment the plan is subscribed to.
The Premium Plan has a fixed fee of USD 9 per month, paid upfront, which includes 2,000 user-hours of Viewing Time available for the upcoming month.
The Premium Plan has a variable fee based on use. At the end of the month, if the Viewing Time exceeds 2,000 user-hours, the overage is charged at USD 0.0026 per user-hour.
Additional fixed and variable fees may apply to the Premium Plan in case optional features are enabled by the Publisher, as specified in the table above. Fixed fees are paid upfront every month.
In the Dashboard, the Publisher can set a limit on the monthly variable fee. When the limit is reached, the Real-Time Services are automatically suspended until next month.
On February 14th, the Publisher subscribes to the Premium Plan. Upon subscription, the Publisher is charged USD 9 (fixed fee for the upcoming month).
On March 14th (after one month), the Viewing Time consumed in the past month is 4,163 user-hours. The fee is calculated as follows:
(a) 4,163 – 2,000 = 2,163 user-hours (overage)
(b) 2,163 * USD 0.0026 = USD 5.62
On March 14th, the Publisher is charged: USD 9 (fixed fee for the upcoming month) + USD 5.62 (variable fee for the past month) = USD 14.62.
The Enterprise Subscription has custom pricing models, features, and payment terms.
The specific terms of every Enterprise Subscription are determined via execution of additional agreements.