Terms and Conditions

1. Subject of the Agreement

1.1. This agreement (the “Agreement”) contains the terms and conditions regulating the relationship between Serco Italia S.p.A., with registered office at Viale della Tecnica 161 Cap 00144 (Rome, Italy), VAT No. IT 01524751003, Fax No. +39 (06) 941 94 26, e-mail address support@onda-dias.eu (“Serco”) and the consumers, professionals and entities (the “Client”) with reference to the provision by Serco of ONDA Services (as defined below), including any access to them by the Client. This Agreement takes effect when the Client accepts the Agreement on the completion of the registration to the ONDA Site www.onda-dias.eu or, if earlier, when the Client uses any of ONDA Services (the “Effective Date”).

1.2. ONDA Services are not meant to be offered to minors, when the Client subscribes to ONDA Services, the Client declares to be at least 18 years old.

1.3. If the Client is entering into this Agreement for an entity, the individual completing the registration to ONDA Services represents to have legal authority to bind that entity and the terms of the Agreement will be meant to bind any employee, officer and individual using ONDA Services on behalf of that entity. The capitalized terms herein have the meaning indicated above or in Section 14 below.

1.4. The Agreement incorporates also Service Terms that may apply to certain ONDA Services once purchased or used by the Client and that will be accepted by the Client at the time of the purchase or access to those ONDA Services. In such case, the Client will be bound also by such Service Terms.

2. Obligations of the Client

2.1. The Client can access and use ONDA Services in accordance with this Agreement and with all laws, rules and regulations applicable to the Client’s use of ONDA Services.

2.2. The Client can get access to the Serco Content by means of ONDA Services. In such case, it shall be bound by this Agreement and, if applicable, separate terms and conditions accompanying such Content, whose terms and conditions may include separate fees and charges which will be disclosed to the Client, and the Client will be requested to accept them, before the beginning of its usage of the relevant Content.

2.3. The Client shall ensure that all End Users comply with the Client’s obligations under this Agreement and that the terms of the agreement between the Client and End User provide the same limitations and obligations prescribed by this Agreement and enable Serco to exercise the rights granted under this Agreement also against the End Users. If the Client becomes aware of any breach of the obligations provided by this Agreement by an End User, it shall immediately notify Serco, suspend access by such End User to Client Content and to ONDA Services and, if requested by Serco at its own costs, cooperate with Serco in the investigations relating to the breach and the actions necessary for the recovery of the damages suffered because of the breach.

2.4. Serco does not provide any support or services to End Users unless this is regulated under a separate agreement with the Client or an End User relating to the matter.

2.5. The Client is responsible to carefully evaluate the ONDA Services necessary for its purposes, including configurations and storage space, in order to efficiently choose the required resources. Serco does not provide any representation and warranty as to the fitness of the ONDA Services for any specific purpose.

3. Client’s Account

3.1. The Client shall set up an Account associated with a valid email address and a valid form of payment to access ONDA Services. The Client needs to ensure that the data provided with its Account are correct and complete and to promptly update them through the Account functionalities.

3.2. The Client is responsible for all activities that occur on its Account, regardless of whether the activities are authorized or undertaken by the Client, its employees or a third party using the Client’s Account, including its contractors, agents or End Users.

3.3. The Client is obliged to diligently and confidentially store the log-in credentials and keys to get access to its Account and ONDA Services and to promptly notify Serco when it believes that its log-in credentials and keys have been unlawfully disclosed to a third party or used in an unauthorized manner. Within the limits provided by the law, Serco is not liable for their unauthorized usage or access.

3.4. Log-in credentials to get access to the Account and keys generated to get access to ONDA Services are for the Client’s internal use only and the Client shall not sell, transfer or sublicense them to any other entity or person, except for the possibility to disclose the key to the Client’s agents and subcontractors performing work on the Client behalf.

4. Client Content

4.1. The Client shall ensure that Client Content and End Users’ use of Client Content and of ONDA Services will not be in breach of the terms of this Agreement, of applicable laws and of third parties’ rights. The Client will be solely responsible for the development, content, operation, maintenance, and use of Client Content.

4.2. The Client is responsible for properly configuring and using ONDA Services and otherwise taking appropriate action to secure, protect and backup its Accounts and Client Content in a manner that will provide appropriate security and protection, which might include use of encryption to protect Client Content from unauthorized access and routinely archiving Client Content.

4.3. The Client represents and warrants to Serco that:
a) The Client itself or its licensors own all rights, title, and interests in and to Client Content;
b) The Client has all rights in Client Content necessary to grant the rights contemplated by this Agreement; and
c) none of Client Content or End Users’ use of Client Content or ONDA Services as well the usage of the Accounts
i) will violate the terms of this Agreement, the rights of Serco, its affiliates, licensors, partners as well as their shareholders, employees and officers, third parties’ rights and/or applicable laws;
ii) will cause interruptions, damages or malfunctioning of ONDA Services and/or Accounts; or
iii) will lead fraudulent activities or in general in breach of applicable laws.

5. License on ONDA Services

5.1. Serco and/or its licensors and subcontractors own all right, title, and interest in and to ONDA Services, and all related technology and intellectual property rights. Subject to the terms of this Agreement, Serco grants the Client a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to do the following: (a) access and use ONDA Services solely in accordance with this Agreement; and (b) copy and use the Serco Content solely in connection with the Client’s permitted use of ONDA Services. Except as provided in this Section 5.1, the Client obtains no rights under this Agreement from Serco, its affiliates, licensors and subcontractors to ONDA Services, including any related intellectual property rights. Some Serco Content may be provided to the Client under a separate license which shall be disclosed to the Client and accepted by it before the beginning of the usage of the relevant Serco Content. In the event of a conflict between this Agreement and any separate license, the separate license will prevail with respect to the Serco Content that is the subject of such separate license.

5.2. The Client will not use ONDA Services, and ensure that any End User will not use, in any manner or for any purpose other than as expressly permitted by this Agreement. Also, Client will not, and ensure that any End User will not,
a) modify, distribute, alter, tamper with, repair, or otherwise create derivative works of any Serco Content included in ONDA Services, unless such Serco Content is provided under a separate license that expressly permits the creation of derivative works;
b) reverse engineer, disassemble, or decompile ONDA Services or apply any other process or procedure to derive the source code of any software included in ONDA Services, save for what provided by applicable laws,
c) access or use ONDA Services in a way intended to either avoid incurring fees, exceeding usage limits or quotas, or perform further fraudulent conducts, or breach the terms of this Agreement or applicable laws; or
d) resell or sublicense ONDA Services.

6. Serco Trademarks

6.1. All the rights on the Serco Trade Marks belong to Serco, its group entities and their licensors and subcontractors. The Client will not be entitled to use the Serco Trade Marks in any manner without the prior written consent from Serco.

7. Provision of Third-Party Content

7.1 Order Placement and EULAs
It is understood that the End User will place an order by signing the Third Parties’ Order Form and accepting the Third-Parties ‘End User License Agreement (EULA) provided by Serco. Placed orders cannot be cancelled. Upon Third Party confirmation, and only for new tasking images, if the acquisition is not completed during the specified collection window, the tasking can be cancelled or rescheduled. The End-User will not act in violation of any applicable laws and regulations mentioned in the EULA. The End-User will defend, indemnify, and hold harmless Serco from and against all fines, penalties, liabilities, damages, costs, and expenses incurred by Serco as a result of any violation of such laws and regulations by the End-User or any of End-User employees.

7.2 Content Delivery
Upon Third-Party’s acceptance of an order, and consequent Third Party’s delivery of the requested Content to Serco, Third-Party Content will be delivered to End Users by means of Third Party’s File Transfer Protocol (FTP). Content uploaded will be deleted from the FTP server after 2 weeks of delivery. Serco’s Third-Party partners have been selected to provide the End Users with the best service level and Content quality. Nevertheless, End Users acknowledges and agree that Serco holds no responsibility on Content quality, acquisition/processing/delivery timings, and FTP server efficiency. In case of reasonable and justified claims by the End User, Serco will collaborate with the Third Party in order to find a fair solution. However, it is understood that Serco shall have no obligation to replace or modify the alleged infringing portion of the product with a non-infringing alternative. Content replacement / substitution / refund, or order cancellation, are granted solely upon Third Parties’ discretion.

7.3 Payment
The fees due for the provision of Third-Party Content will be charged according to the billing arrangement notified at the time of the purchase. All fees due will be net of VAT and any other tax due. Invoices will be issued together with the delivery of the Content, and are due within 30 calendar days from the Content delivery. In case of late payments, interests for late payments provided by article 5 of the Italian Legislative Decree 9 October 2002 No. 231 will be applicable.

8. Indemnity

8.1. The Client undertakes to defend, indemnify, and hold harmless Serco, its affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any Losses arising out of or relating to any third-party claim concerning:
a) The Client or any End Users’ use of ONDA Services, including any usage of the Account and any usage of the ONDA Service by the Client’s personnel;
b) The breach of this Agreement or violation of applicable law by the Client, End Users or any Content provide by the Client and/or the End Users;
c) A dispute between the Client and any End User;
d) Any breach of third parties’ rights through the Content.

8.2. Serco will have no obligations or liability arising from the Client or any End User’s use of the ONDA Services after Serco has notified the Client to discontinue such use.

9. Warranty

9.1. Within the limits provided by the law and save for what provided in this Section 9, the ONDA Services are provided “as is” with no warranty or guarantee.

9.2. For any claim of breach of third parties’ rights through ONDA Services or Serco Content that is due to the Client, Serco will, at its election, either: (i) procure the rights to use that portion of the Services and/or Serco Contents alleged to be infringing; (ii) replace the alleged infringing portion of ONDA Services and/or Serco Contents with a non-infringing alternative; (iii) modify the alleged infringing portion of ONDA Services and/or Serco Contents to make it non-infringing; or (iv) terminate the allegedly infringing portion of ONDA Services and/or Serco Contents or this Agreement.

9.3. The remedies provided in this Section 9 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights by ONDA Services.

10. Limitation of Liability

10.1. Save for the cases of gross negligence and wilful misconduct, Serco, its affiliates, licensors and subcontractors as well as their employees, directors and shareholders
a) will not be liable for indirect and consequential damages suffered by the Client, End Users or licensors, including damages due to the suspension of the provision of ONDA Services, and
b) in any case (Serco) will not be liable for an amount exceeding 0.5% of the Public Cloud Instances total monthly invoiced amount paid by Customer for the Unavailable components per consecutive sequences of one (1) minute (beyond the first three (3) consecutive minutes of lost access or connectivity), up to a maximum of 50% of the monthly invoiced amount paid by Customer for the affected Service

10.2. Serco will not be liable for delays, interruption and lack of provision of ONDA Services due to force majeure events and in general any event that is outside its reasonable control.

11. Fees and Payment

11.1. The fees due for the usage of ONDA Services will be charged according to the billing arrangement notified at the time of the purchase. All fees due will be net of VAT and any other tax due. In case of late payments, interests for late payments provided by article 5 of the Italian Legislative Decree 9 October 2002 No. 231 will be applicable.

11.2. Fees for ONDA Services can be subject to changes that will be notified at least 30 days prior to their effective date. Should the new fees not be acceptable by the Client, it can terminate the Agreement prior to their effective date.

12. Term, termination and suspension

12.1. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated under this Section 12.

12.2. Save for the termination rights granted to Clients that are consumers,
a) The Client will be entitled to terminate this Agreement at any time by closing its Account.
b) Serco can terminate this Agreement and block the access to ONDA Services
i) at its discretion with a 30 day prior notice;
ii) in case of breach of any term of this Agreement that is not cured within the following 15 days;
iii) in case of breach by the Client of its obligations provided by Sections 2 (Obligations of the Client), 4 (Client Content), 5 (License on ONDA Services), 6 (Serco Trademarks), 11 (Fees and Payment), 16 (Export Controls), 17.4 (Miscellaneous), including the cases when Serco suspects that the Client is breaching any of those provisions; or
iv) in case of insolvency proceeding initiated against the Client.

12.3. On the Termination Date, all the Client’s rights under this Agreement immediately terminate and the Client shall destroy all the Serco Content in its possession, but the Client will remain responsible for all fees and charges incurred up to the Termination Date and are responsible for any fees and charges the Client incurs during the post-termination period.

12.4. Prior to the Termination Date, the Client will be allowed to remove all Client Contents from ONDA Services, provided that the Client is not in breach of the terms of this Agreement.

12.5. For any use of ONDA Services after the Termination Date, the terms of this Agreement will apply and the Client will pay the applicable fees.

12.6. Under the cases of Section 12.2 b), points ii) to iv), Serco will also be entitled to suspend the provision of the Online Services. Additionally, Serco may suspend the Online Services in case of
a) a risk of stability and/or security of the systems, environment and/or the ONDA Services and/or the Content, which cannot be otherwise remedied or mitigated;
b) scheduled maintenance;
c) a request issued by legal or judicial authorities to Serco, its affiliates, subcontractors or partners; and
d) in case of lack of provision of services from Serco’s subcontractors.
The suspension in the circumstances above might occur also without notice in case of urgency and especially in the circumstances of Section 12.2 b), points ii) to iv) and letter a) of this Section 12.6. The Client will remain liable to pay the fees during the suspension period.

13. Privacy

13.1. Serco will process the Client’s personal data in compliance with the privacy information notice available on the ONDA Site.

14. Changes

14.1. Serco can change or discontinue some ONDA Services or change or remove functionalities of any of ONDA Services from time to time, also due to regulatory changes. Likewise, Serco might change or discontinue some APIs for ONDA Services. In such cases, Serco will notify in advance the material change or its discontinuation.

14.2. Serco reserves the right to amend from time to time this Agreement with a prior 30 day notice to the Client. In such case, if the Client does not want to accept the new version of the Agreement, it shall terminate the Agreement before the date when it becomes effective.

15. Consumers’ rights

15.1. The provisions of this Section 15 apply only to Clients that fall under the category of “consumers” pursuant to the Italian Consumers Code.

15.2. In compliance with article 59.1, letter o) of the Italian Consumers Code, the Client recognizes and accepts that the opening of an Account leads to the beginning of the execution of the ONDA Services and therefore it will lose the right of withdrawal pursuant to article 52 of the Consumers Code.

15.3. Save for the right of the Client to bring a claim before the courts of its place of residence, the Client is informed herewith in compliance with article 14 of the EU Regulation 524/2013 that the EU Commission set up a platform for the online dispute resolution that can be accessed at this link and that can be used by the Client to sort disputes with Serco that can be contacted at the following address support@onda-dias.eu.

15.4. Clients that are consumers should be aware that the Sections of this Agreement that can be considered unfair under the terms of the Italian Consumers Code may be void pursuant to article 36 of the Italian Consumers Code and therefore do not apply to them.

16. Export Controls

16.1. Clients shall not the ONDA Services (and shall ensure that their End Users shall not use the ONDA Services) in breach of EU Regulation 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items and the United States regulations on export controls including EAR (Export Administration Regulations) and ITAR (International Traffic In Arms Regulations). Serco reserves the right to refuse to provide ONDA Services subject to the restrictions of this Section 16.

17. Confidential Information

17.1. The Client may use Serco Confidential Information only in connection with the Client’s use of ONDA Services as permitted under this Agreement. The Client will not disclose Serco Confidential Information during the Term or at any time during the 5-year period following the end of the Term. The Client will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Serco Confidential Information, including, at a minimum, those measures the Client takes to protect the Client’s own confidential information of a similar nature. The Client will not issue any press release or make any other public communication with respect to this Agreement or the Client’s use of ONDA Services.

18. Miscellaneous

18.1. The Client is not entitled to assign or otherwise transfer this Agreement or any of its rights and obligations under this Agreement, without Serco’s prior written consent. Any assignment or transfer in violation of this Section 16.1 will be void. Serco will be entitled to assign the Agreement as well as assign and/or subcontract rights and obligations under this Agreement at its own discretion.

18.2. Unless provided otherwise in this Agreement, this Agreement incorporates the entire agreement between the parties in relation to the subject matter of this Agreement. This
Agreement supersedes all the prior agreements between the parties relating to the same matter.

18.3. This Agreement is governed by Italian law, without reference to conflict of law rules. Any dispute arising from this Agreement will be subject to the exclusive jurisdiction of the courts of Milan (Italy). The United Nations Convention for the International Sale of Goods does not apply to this Agreement.

18.4. Serco may provide any notice to the Client under this Agreement by either posting a notice on the ONDA Site or sending a message to the email address then associated with the Client’s Account. Notices we provide by posting on the ONDA Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is the Client’s responsibility to keep its email address current. The Client will be deemed to have received any email sent to the email address then associated with the Client’s Account when we send the email, whether or not the Client actually receives the email. The Client can send a notice to Serco by sending it via email to the address associated to the CONTACT US function on the Web Portal and such notice will be meant to be received by Serco following the delivery by Serco of a notice of receipt to the Client.

18.5. The failure by Serco to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit the Serco’s right to enforce such provision at a later time. All waivers by Serco must be in writing to be effective.

18.6. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.

18.7. Serco, its affiliates, licensors and subcontractors are not subject to any obligations, does not provide any representation and warranty also in relation to the ONDA Services that is not expressly provided by either the Agreement or statutory law which cannot be derogated by the terms of this Agreement.

18.8. Data deletion executed by the Client, End User and any user is an irreversible operation, and no data can be recovered by Serco as a consequence of a Client deletion.

19. Definitions

The following terms will have the meaning indicated below in the Agreement:
“Account” means the account to be created by the Client to get access to ONDA Services;
“API” means an application program interface;
“Client Content” means Content that the Client or any End User transfers to Serco for processing, storage or hosting by ONDA Services in connection with the Client’s Account and any computational results that the Client or any End User derive from the foregoing through their use of ONDA Services;
“Content” means software (including machine images), data, text, audio, video or images;
“End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses Client Content; or (b) otherwise accesses or uses ONDA Services under the Client’s Account;
“Italian Consumers Code” means the Italian Legislative Decree 6 September 2005, No. 206, as subsequently amended, integrated or replaced;
“Losses” means any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees);
“ONDA Services” means the services provided by Serco under this Agreement (including associated APIs), the Serco Content, the Serco Trade Marks, and any other product or service provided by the Client under this Agreement as better outlined on ONDA Site.
“ONDA Site” means the specially designed website that reports information about ONDA Services, as may be updated by Serco from time to time;
“Serco Confidential Information” means all non-public information disclosed by Serco, our affiliates, business partners, subcontractors or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Serco Confidential Information includes: (a) non-public information relating to our or our affiliates or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between the Client and Serco or Serco’s affiliates. Serco Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the Client at the time of the Client’s receipt from Serco; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by the Client without reference to the Serco Confidential Information;
“Serco Content” means Content we or any of our affiliates make available in connection with the ONDA Services or on the ONDA Site to allow access to and use of the ONDA Services, including APIs; WSDLs; Documentation; sample code; software libraries; command line tools; proofs of concept; templates; and other related technology (including any of the foregoing that are provided by our personnel). Serco Content does not include the Third-Party Content;
“Serco Trade Marks” means any trademarks, service marks, service or trade names, logos, and other designations of Serco and its affiliates that we may make available to the Client in connection with this Agreement;
“Term” means the term of this Agreement described in Section 12.1;
“Termination Date” means the effective date of termination provided in accordance with Section 12, in a notice from one party to the other.
“Third-Party Content” means Content made available to the Client by any third party on the ONDA Site or in conjunction with ONDA Services.
Pursuant to articles 1341 and 1342 of the Italian Civil Code, the Client declares to have read and understood and expressly accept the following Sections of this Agreement: 4.2 (Client Content), 5.2 (License on ONDA Services), 9 (Warranty), 10 (Limitation of Liability), 12 (Term, Termination and Suspension), 14 (Changes), 16 (Export Controls), 18.1, 18.3 and 18.7 (Miscellaneous).