General Terms and Conditions

 

The terms that are defined below or from time to time in the Agreement have the meaning attributed to them; words in the singular include the plural, and vice versa; words importing any gender include all genders; and the headings are for convenience only and do not affect interpretation.

 

  • “Agreement” means the agreement to be signed by the Customer of which this General Terms and Conditions and the other Schedules are an integral part.

 

  • “Affiliate” means and includes each and any company controlling or controlled by the Customer or controlled by the ultimate entity controlling the Customer. “Control” in this case means the direct or indirect ownership of more than 50 percent of the voting rights in an entity.

 

  • “Client” or “End User” means the entity or person who uses Vehicle equipped with the HW.

 

  • “Crash” means the Vehicle’s accident which the HW is capable to detect, if so specified in the Solution.

 

  • “Customer” means the Party who signs the Agreement as customer of Omoove.

 

  • “Force Majeure” has the meaning set forth in Clause 10 below.

 

  • “GPRS” means the General Packet Radio Service, i.e. a packet oriented mobile data service provided by GSM networks, used by Omoove for the communication between the HW and the Omoove Data Centre.

 

  • “GNSS” means the Global Navigation Satellite System, i.e the global satellite system based on the US satellite system GPS (Global Positioning System) and on the Russian satellite system GLONASS (Global Navigation Satellite System), used by Omoove to localize the Vehicle.

 

  • “GSM” means the Global System for Mobile communication, i.e. a digital mobile cellular telephone system used by Omoove for the communication between the Omoove Data Centre and the HW.

 

  • “Installer” means Omoove and/or the workshop approved by Omoove, which carries out the installation, activation and maintenance of the HW.

 

  • “Hardware” (or “HW”) means the electronic device and related components (i.e. card readers, screens, etc.) owned or sold by Omoove to be installed inside the Vehicle and which collects and transfers to the Omoove Data Centre the data necessary to supply the Solution.

 

  • “HW Activation” means the completion of the activities necessary to make the HW operative and performing its functions.

 

  • “Omoove” means Omoove S.r.l., an Italian company of Octo Group with registered office at Via Lamaro, 00173 Rome, Italy.

 

  • “Omoove Data Centre” means the IT infrastructure of Omoove, currently located in Italy, or located elsewhere as may be decided by Omoove at its own discretion, which receives, processes and stores the data transmitted by the HW.

 

  • “Octo” means Octo telematics S.p.A. an Italian company with registered office at via Vincenzo Lamaro 51, 00173 Rome, Italy.

 

  • “Octo Group” means and includes Omoove and any company directly or indirectly controlled by Octo.

 

  • “Party” and “Parties” mean the Customer and Octo.

 

  • “Schedules” mean the following documents:
    • the General Terms and Conditions – Schedule 1;
    • Preliminary offer– Schedule 2;
    • The integrated solution– Schedule 3;
    • On board units – Schedule 4;
    • UAT – Schedule 5,
    • Customer activities –schedule 6
    • Data Processor Agreement – Schedule 7

 

  • “Fee” means the amount specified in the Agreement to be paid by the Customer to Omoove for the services supplied.

 

  • “Service Period” means any initial or subsequent period of 36 (thirtysix) months each starting from the SAV Creation Date or a Renewal Date.

 

  • “Single Active Vehicle” (“SAV”) means the single vehicle activated by HW that is part of the Solution.

 

  • “Solution” means the solution described in Preliminary offer  – Schedule 2;
  • and including HW, SAV and services in the The integrated solution  – Schedule 3, which is supplied by Omoove to the Customer pursuant to the Agreement. The Solution described in Platform Configuration Document – Schedule 3 may be modified upon further SAV activations and SAV cancellations.

 

  • Solution Activation Date” means the completion of the activities necessary to make the Solution as described in the Schedule 3 operative and performing its functions.

 

  • “Agreement Expiration Date” has the meaning set forth in Clause 11.1.

 

  • “SAV Cancellation” means the uploading into the Omoove Data Centre of a request to cancel a SAV.

 

  • “SAV Cancellation Date” means the date in which the SAV Cancellation occurs.

 

  • “SAV Creation” means the uploading of the SAV into the Omoove Data Centre of a request to activate a SAV.

 

  • “SAV Creation Date” means the date in which the SAV Creation occurs.

 

  • “Territory” means the geographical area indicated in the Agreement in which the Solution are provided.

 

  • “Theft” means the criminal offence consisting of the fraudulent taking of the Vehicle as defined by the applicable laws.

 

  • “Vehicle” means the vehicle of the Customer where the HW is installed.

 

 

  1. SUPPLY OF THE SOLUTION.

 

Section One – Solution

 

  • Omoove shall start supplying the Solution from the Solution Activation Date and further SAV Creation date, if applicable, provided that the requirements set forth in the Schedule, 2, 3 and 4 are duly satisfied.

 

  • Omoove shall supply the Solution for the duration of the Service Periods. If at the Agreement Expiration Date or at the date of earlier termination under Clause 12 below the Service Period is not completed, Omoove will supply the Solution until the end of such Service Period, and at its end each SAV Cancellation shall automatically occur regardless of the request of the Customer.

 

  • If so specified in the The integrated solution – Schedule 3, the Customer Care Centre of Omoove shall be available to the Clients.

 

Section Two – Single Active Vehicle (SAV)

 

  • If the services promised and the obligations undertaken by the Customer towards the Clients are different from and/or not compatible with the The integrated solution – Schedule 3 and functionalities as described in the Schedule 2, the Customer shall indemnify and hold Omoove harmless from costs, expenses and damages (including reasonable legal fees) which Omoove may suffer in relations to possible claims against Octo.

 

Section Three – Fees

 

  • The Fees are due in advance for each Service Period or as differently provided in the Schedule 5. After the execution of the Agreement and until Agreement Expiration Date, at the end of each month (“Relevant Month”), Omoove shall issue to the Customer an invoice for the Fees (i) of all the SAV for which the SAV Creation Date occurred in the Relevant Month, and (ii) of all the SAV for which the Renewal Date occurred in the Relevant Month, as well (iii)
  • Payments shall be due within 30 (thirty) days from the date of the invoice (e.g. SAV Creation Date in June, invoice issued at the end of June and payment due at the end of July). The details of the bank account of Omoove for the payment of the Fees shall be indicated in the invoice or otherwise communicated to the Customer.

 

  • Payment of the Fee may be delayed only for those items of the invoice for which the Customer promptly notifies in writing to Omoove the detailed reasons of complaint. If the complaint is accepted, Omoove will issue a credit note. If the complaint is contested by Octo, the Parties shall endeavor to resolve the issue within 30 (thirty) days from the receipt of the complaint by Octo. Interest at Euribor plus 2 (two) percent applies to any delayed payment due by the Customer.

 

  • The Fee paid shall not be reimbursed if the SAV Cancellation Date occurs before the end of the Service Period.

 

  • In the cases provided by Clause 4.2, and in the event that the applicable laws or a material change of the market conditions, with respect to those at the signing of the Agreement, require material changes to the Solution, or materially increase the costs for the supply of the Solution or it is otherwise required that the Omoove Data Centre is located in a place different than Rome, Italia, Omoove reserves the right (i) to increase the Fees to take into account the additional costs to be incurred, or (ii) to terminate the Agreement, without any further costs for the Parties.

 

  • The Customer shall be responsible for the translation of any schedules which need to be translated into a language different from English and Italian and for the accuracy of the translation. The translation costs shall be borne by the Customer.

 

 

 

  1. SUPPLY, INSTALLATION AND MAINTENANCE OF THE HW.

 

  • Obligations of Omoove. Omoove shall supply the HW to the Customer in accordance with the following Clauses:

 

  • the HW is supplied for the subsequent installation in the Vehicle of the Customer. The connectivity between the Omoove Data Centre and the HW shall be provided by the telecom operator selected by Omoove;
  • installation, activation and maintenance of the HW shall be made by the Installers. If the Agreement provides that the installation, activation and maintenance are carried out by the installers selected by the Customer, the installers are subject to the prior approval of Omoove. However, Omoove shall not be responsible for the activities of such installers.

 

  • Obligations of the Customer. The Customer shall be exclusively responsible for the care and the correct usage of the HW by the Customer itself and the Clients and shall hold harmless Omoove for any damages, losses which Omoove may suffer. The Customer shall also be responsible for the return in good condition of the HW to Omoove at the end of the Agreement.

 

 

  1. REVIEWS AND CHANGES.

 

  • Periodically the representatives of the Parties shall meet to review the performance of the Solution and that any other obligations under the Agreement are being performed.

 

  • Omoove reserves the right to modify the Solution for justified reasons, including legislative or regulatory amendments, provisions issued by supervisory authorities, for reasons of efficiency or increased security, or other technical or operational matters. In this case, provided that there is no substantial degradation in the material functionality or performance of the Solution, Omoove will inform the Customer and implement the necessary changes. As well, Omoove reserves the right to replace the HW for reasons of efficiency or increased security, or other technical or operational matters. In this case, provided that there is no substantial degradation in the material functionality or performance of the HW, Omoove will inform the Customer and implement the necessary changes.

 

  1. INTELLECTUAL PROPERTY RIGHTS. CLIENTS. CONFIDENTIALITY.

 

  • Intellectual Property Rights of Omoove. Any intellectual property rights, proprietary information, know-how, database, trade secrets, software, firmware, features and specifications of the Solution and products, including the HW, and any relevant subsequent developments, evolution or improvements, trademarks and trade names, either patented, registered or not, of Omoove and/or Octo Group, or for which Omoove or Octo Group has a license or consent by the owner, and any other information which may be of interest of the competitors of Omoove and/or Octo Group and which is disclosed, supplied or used for the implementation of the Agreement (regardless whether or not is stamped or otherwise qualified as confidential) (“Confidential Information”), shall remain the exclusive property, as the case may be, of Octo, Octo Group or of the above mentioned owner. Customer shall not dispute or challenge such ownership and related rights and shall not do anything to diminish such rights.

 

  • Use of Confidential Information. The disclosure, supply and/or use of the Confidential Information and HW is granted to the Customer and the Clients on a non-exclusive basis and is limited to the purposes of the Agreement only. The disclosure, supply and/or use of the Confidential Information and HW cannot be construed as the granting to the Customer, the Client and any third party of a license, or any other right or consent to use the Confidential Information, whole or part thereof, in any manner.

 

  • Protection of Confidential Information. The Customer shall exercise all reasonable efforts to prevent any third parties from having access to Confidential Information, and shall keep all copies thereof in a secure location inaccessible to any persons not authorized to receive the Confidential Information. The Customer may give access to the Confidential Information to its shareholders, directors, officers, employees, agents and consultants, and, in general, to any other person to whom access must be given for the implementation of the Agreement. The Customer shall take the reasonable necessary measures to ensure that any person to whom access to the Confidentiality Information is given undertakes the same obligations undertaken by the Customer under the Agreement, but the Customer shall be responsible for any breach of the confidentiality obligations by such persons.

 

  • The confidentiality obligation shall not apply to the information which:

 

  • the recipient can demonstrate that the information was lawfully known to the recipient prior to receipt thereof as evidenced by written records dated prior to such receipt;
  • is or becomes publicly available other than by violation of confidentiality obligations;
  • becomes available to the recipient on a non-confidential basis from a source other than Omoove and which, to the best of recipient’s knowledge after due inquiry, is entitled to disclose it, or
  • is required by law to be disclosed by the recipient to any authority under any applicable lawful mandatory orders, according to the terms of such orders, provided that Omoove is given by the recipient prompt written notice of such requirement prior to such disclosure and provides Omoove assistance in obtaining an order protecting the information from public disclosure;
  • a Party is obliged to communicate or disclose (even within documents of offer of equity or debt to the public o institutional investors) in compliance with a lawful order of any authority or pursuant to law or regulation, provided that – to extent possible and/or legally permitted – in this case, the Party shall give prior notice in writing to the other.

 

  • If the Confidential Information is used or disclosed by the Customer other than in accordance with this Agreement, Omoove and/or Octo Group shall be entitled to obtain from the competent Court an injunction in addition to damages or any other remedy to which they may be entitled under the applicable laws.

 

  • Intellectual Property Rights of the Customer. Any intellectual property rights, proprietary information, know-how, database, trade secrets, software, firmware, features, of the Customer, or for which the Customer has a license or consent by the owner, which is disclosed or supplied to Omoove and/or Octo Group for the implementation of the Agreement (regardless whether or not is stamped or otherwise qualified as confidential), shall remain the exclusive property, as the case may be, of the Customer or of the above mentioned owner. Omoove shall not dispute or challenge such ownership and related rights and shall not do anything to diminish such rights. The Customer shall grant, or procure the above   mentioned owner shall grant, to Omoove and/or Octo Group, license or consent to use such rights for the purposes of supplying of Solution to the Customer or third parties. The Parties shall indicate in a proper schedule to the Agreement the rights attributed to Omoove and/or Octo Group, which shall include the right to use any relevant development, evolution or improvement, and which shall not be attributed to competitors of Omoove and/or Octo Group for the entire duration of the Agreement. The Customer warrants that such attribution is not in breach of any intellectual property rights of any third party. The above Clauses from 5.2 to 5.5 shall apply mutatis mutandis to Omoove and/or Octo Group.

 

  • Clients Data. With respect to the names, other details and the data and information received by the Omoove Data Centre or obtained by Omoove regarding the Clients, Omoove and Octo Group shall have free, full and undisputed right:

 

  • to process and retain the names and other personal details and data of the Clients and any other relevant information for the purposes of fulfilling the obligations of Omoove under the Agreement; and
  • to use free of charge any and all data and information received and processed by the Omoove Data Centre, even in aggregate or statistical form and/or for purposes of quality improvement or enhancement of the Solution, provided that such data and information are made anonymous in compliance with the applicable personal data protection law requirements.

 

  • The Customer may request the disclosure of the data relative to the Clients processed by the Omoove Data Centre provided that the disclosure is permitted under the applicable laws and is limited to the data received in the last three years before the Customer’s request.

 

  1. THIRD PARTY INTELLECTUAL PROPERTY.

 

  • Notice of Claims. Where the Customer becomes aware of any claim by any third party that HW or the Solution constitute an infringement or misappropriation of any intellectual property rights of a third party, the Customer shall notify Omoove giving the details of the claim and any other information of which is aware.

 

  • Omoove shall have the right to change the Solution and any part or component of it, so as to avoid any infringement or misappropriation of a third party’s intellectual property rights, provided that there is no substantial degradation in the material functionality or performance of the Solution.

 

  1. DATA PROTECTION.

 

  • Compliance with law. Omoove, as Data Processor, will process and store the collected data, in compliance and in accordance with the instructions provided as per Schedule 8 by the Customer acting as Data Controller, and according to the applicable personal data protection laws regarding those data and information transmitted by the HW which are covered by the above mentioned laws (“Protected Data”). In case no such purposes and methods are determined by the Customer, Omoove will act according  to its policy on personal data processing and, in any case, in compliance with Legislative Decree 196/2003. In particular, Omoove shall maintain appropriate technical and organizational measures, processes and procedures in place to safeguard against any unauthorized or unlawful access, loss, destruction, corruption, theft, use, processing or disclosure of the Protected Data.

 

  • Obligations of Omoove. Omoove shall:

 

  • promptly notify the Customer about any request for disclosure of the Protected Data by a regulatory or law enforcement authority, unless there is a requirement to preserve the confidentiality of the request or disclosure;
  • promptly notify the Customer about any accidental or unauthorized access which has, or may, or is likely to affect the Protected Data;
  • promptly deal with all inquiries from the Customer relating to any processing by Omoove of the Protected Data;
  • not disclose the Protected Data to a third party unless otherwise agreed with the Customer in advance or obliged to do so under any statutory requirement;
  • not transfer the Protected Data to any country outside the EU without prior consent of the Customer;
  • on request by the Customer, co-operate with and promptly provide to the Customer all information which the Customer may require in order to comply with requests from the any appropriate regulatory authority with powers under the applicable laws.

 

  • Obligations of the Customer. The Customer, acting as Data Controller, will be responsible (i) to provide and update the instructions to Omoove in order to collect, process and manage the received data, (ii) to collect the clients Privacy consent, and in any case (iii) to comply with all applicable data protection laws. The Customer shall indemnify and hold Omoove harmless from costs, expenses and damages (including reasonable legal fees) which Omoove may suffer in relations to possible claims against Omoove for possible breaches of privacy laws, due to the provision of incorrect instructions by the Customer.

Octo Group runs an Information Security Management System (ISMS) and a Quality Management System (QMS) that are compliant with ISO/IEC 27001:2013 and ISO 9001:2015. Except as stated in Clause 7.4 below, the Customer is requested to implement Information Security and Quality policies that do not impair the Octo’s compliance to the above mentioned norms and, in particular, the Customer shall adopt suitable policies, including, but not limited to, one or a combination of the following strategies:

 

  • establish, operate and maintain an Information Security Management System and a Quality Management System compliant to ISO/IEC 27001:2013 and ISO 9001:2015, respectively;
  • establish, operate and maintain a Quality Management System compliant to ISO 9001:2015, where specific control objectives and controls are included so as to fulfill the applicable requirements of ISO/IEC 27001:2013. Such control objectives and controls shall include, as a minimum, the applicable items of ISO/IEC 27001:2013,
  • implement all control objectives and controls that Omoove will require so as to fulfill the applicable requirements of ISO 9001:2015 and of ISO/IEC 27001:2013. This may include receiving formal audits to be performed by Octo, by its representatives, or by third-party auditors, and conducted in compliance with the norm ISO 19011:2002.

 

  • If the Customer is not ISO compliant or it is not willing to comply with the requirements under Clause 7.3 above, the Customer acknowledges and accepts that Omoove will provide systems and services complying with Octo Group internal rules.

 

  • The applicable laws may require the non-EU Customers to appoint a representative in the EU territory. In such case the relative costs and expenses shall be borne by the Customer.

 

  • In the event that either Party becomes aware of any unauthorized, unlawful or dishonest conduct or activities, or any breach of the terms of the Agreement relating to Protected Data, such Party shall forthwith notify the other Party in respect thereof.

 

 

  • Omoove represents and warrants that:

 

except (i) for any failures and breaches caused by events, acts, omissions or misuse not  imputable to Omoove and/or Octo Group, (ii) for activities and services to be carried out by the Customer or the installers selected by the Customer or (iii) in case of Force Majeure, the Solution shall be performed and supplied using reasonable skill, care and diligence and in Preliminary offer –Schedule 2

  • and The integrated solutionSchedule 3 in all material respects;
  • all of the personnel assigned by Omoove to the performance of its obligations under the Agreement shall have the requisite skill, experience, qualifications and knowledge for the tasks assigned to them;
  • obligations of Omoove under the Agreement shall be performed in compliance with its provisions and observing all applicable laws and regulations;
  • Omoove has full capacity and authority and all necessary governmental, administrative and regulatory authorizations and all necessary intellectual property rights to enter into and to perform the TA;
  • Omoove and Octo Group are the owners or licensees of the Confidential Information and the performance by Omoove of the obligations under the Agreement is not in breach of any intellectual property rights of any third party;
  • the IT system of Omoove and the Omoove Data Centre shall always be protected with updated firewalls and other anti-virus systems available on the market and adequate to the activities, assets and financial status of Octo; and
  • there are no material outstanding litigation, arbitration or other disputed matters to which Omoove is a party which may have a material adverse effect upon the performance of the TA.

 

  • The above obligations and warranties shall be valid and effective for the duration of the Agreement, are exclusive for the benefit of the Customer and there are no other express or implied obligations, warranties or conditions.

 

 

  • Compliance with the law. Nothing in the Agreement shall operate so as to exclude or limit the liability in case of willful misconduct, gross negligence, death, personal injury or in any other case in which liability cannot be excluded or limited by the applicable law.

 

  • Breaches and Claims. In the event of breaches imputable to Omoove to its obligations or warranties under the Agreement or the applicable law, or claims by third parties in relation to events, acts or omissions imputable to Omoove, the only remedy is that Omoove, at its own costs, shall correct such breaches and defend or satisfy such claims in a commercially acceptable manner and within a reasonable timeframe from the receipt of the relevant notice issued by the Customer.

 

  • Should Omoove be incapable to fulfill its obligations under Clause 9.2 above, Omoove shall indemnify Customer against damages, costs and expenses (including reasonable legal expenses) incurred by the Customer as direct and immediate effect of the above breaches, within the limits set out in Clause 9.4 below, without duplication and subject to and in accordance with the final judgment against Omoove issued by the Court having jurisdiction.

 

  • Limitation of Liability. Notwithstanding anything to the contrary which may be stated in the Agreement and if permitted under the applicable laws, in no event:

 

  • Omoove or Octo Group shall be liable, whether in contract, tort or otherwise, including for negligence, for any indirect, consequential, incidental, special or punitive damages, loss of profits, revenue, savings and opportunities howsoever caused or arising, and even if Omoove or Octo Group were aware of the possibility of such damages or losses; and
  • the maximum liability of Omoove and/or Octo Group, in respect of each individual breach to its obligations or warranties, or series of breaches to the same obligation or warranty, and/or individual claim, or series of claims of the same kind, shall exceed Euro 5.000,00 (five thousand/00), and the maximum aggregate liability of Omoove and/or Octo Group shall exceed the total amount of Euro 50.000,00 (fifty thousand/00), except as established in Clauses 9.8 below.

 

  • Right of defense. Where the Customer becomes aware of any claim for which the liability of Omoove may arise, the Customer shall forthwith notify Octo, and may summon Omoove in the court proceedings which may have been instituted against the Customer. Subsequently, Omoove shall in its discretion, at its own cost and represented by the lawyer selected by Omoove, either defend or compromise such claim. The name of the Customer shall be used in such compromise or defense only with the written permission of the Customer, such permission not to be unreasonably withheld or delayed.

 

  • Omoove and Octo Group cannot be held liable also in the following events:
  • incorrect operation of the GNSS, GSM, GPRS and telecommunication network and lines;
  • the Vehicle is inside a garage or in a tunnel, or in any other place where there may not be sufficient coverage of the GNSS/GSM;
  • the mapping database is not duly corrected and updated;
  • the HW and/or the relevant components and accessories have been tampered by any unauthorized party or have been destroyed or seriously damaged;
  • incorrect installation of the HW in the Vehicle;
  • the Client has been notified that the HW is in anomaly and the Client has not contacted the Installer as requested;
  • the data and other information provided by the Customer and/or the Client are incorrect;
  • new laws or regulations or mandatory orders have come into force and affect the functionality of the Solution;
  • Force Majeure; and
  • breach by the Customer and/or the Client of their respective obligations or warranties.

 

  • Liability regarding third party intellectual property rights and data protection. Notwithstanding the Clauses from 9.1 to 9.6 above, either Party shall be responsible for any breach of its respective obligations and warranties under the Agreement and any applicable laws regarding third parties’ intellectual property rights and personal data protection.

 

  • In case of claims, legal proceedings or requests submitted by a Client or by any supervisory authorities or by any other third party against the Customer and/or Omoove to any Courts or to any supervisory authorities, in relation to any breaches exclusively imputable to Omoove of its obligations and warranties regarding third parties intellectual property rights and/or personal data protection, Omoove shall indemnify the Customer against damages, costs and expenses (including reasonable legal expenses) incurred by the Customer as direct and immediate effect of such breaches, without duplication and subject to and in accordance with the final judgment or order against the Customer and/or Omoove issued by the relevant Court or supervisory authority, within the limit of the total amount of the Fees paid by Customer to Omoove in the previous calendar year.

 

  1. FORCE MAJEURE.

 

  • The Customer and Omoove shall not be responsible for failure or delay of performance of their respective obligations under the Agreement if caused by any events which are outside the reasonable control of or are not imputable to the obligated Party (“Events of Force Majeure”) including, without limitation, acts of God, war, riot, civil commotion, strikes, lock-outs, labor disputes, malicious damage, compliance with changes of laws or governmental order, rule, regulation or direction, accident, fire, flood, storm, a world-wide component shortage. Lack or delay of availability of cartography and of GSM, GPRS and/or GNSS and/or in general telecommunication services shall also be considered Events of Force Majeure.

 

  • If any Party is unable to perform any of its obligations under the Agreement due to a Force Majeure Event, then:
    • that party’s obligations under the Agreement shall be suspended for so long as the Force Majeure Event continues and to the extent that that party is prevented, hindered or delayed;
    • a Party may only exercise its rights under this Clause if, on the commencement of the Force Majeure Event, that Party, as promptly as is possible and reasonable in the circumstances, notifies the other Party in writing of the occurrence of the Force Majeure Event and the effects of such event on its ability to perform its obligations under the Agreement;
    • each Party shall use its reasonable endeavors to mitigate the effects of any Force Majeure Event upon the performance of their respective obligations under the TA; and
    • after the cessation of any Force Majeure Event the party which has exercised its rights under this Clause shall, as promptly as is possible and reasonable in the circumstances, notify the other party in writing of the cessation of the Force Majeure Event and shall immediately resume performance of its obligations under the Agreement.

 

  • If the Force Majeure Event continues for more than 180 (one hundred eighty) days and an end of the Force Majeure Event is not reasonably foreseeable, either Party may by written notice terminate the TA.

 

 

  • Subject to the earlier termination under Clause 12 below, the Agreement shall have the duration specified in the Agreement, however the Agreement shall be automatically extended for subsequent periods of 1 (one) year each if no termination written notice has been sent, by either Party to the other Party, at least 6 (six) months before the end of the first period of duration or the end of each subsequent 1 (one) year extensions. The last day of the first period of duration or of the last period of extension is the “Agreement Expiration Date”.

 

  • In any event the obligations of the Parties under Clauses 5 (Intellectual Property-Confidentiality) and 9 (Liability) will continue to be binding for a period of 3 (three) years after the Agreement Expiration Date or termination of the TA or after the resolution of the same, except for what concerns the Confidential Information which constitute trade secrets according to the EU Directive 2016/943 for which the obligation of confidentiality must be considered unlimited.

 

 

 

 

  • Either Party may terminate the Agreement by giving notice in writing to the other Party (the “Defaulting Party”) in the event of:

 

  • the Defaulting Party is in material breach of the Agreement and such breach has not been remedied within a reasonable and commercially acceptable timeframe after receipt of notice in writing giving particulars of the breach;
  • the Defaulting Party becomes bankrupt, make any arrangement with its creditors involving a material part of its assets, goes into liquidation, becomes subject to an administration order, or a receiver is appointed to manage its business or assets; or
  • the Defaulting Party ceases to carry on its business for any reason whatsoever.

 

  • Omoove may terminate the Agreement if the Customer failed to pay the fees as stated in the Agreement.

 

  • The termination of the Agreement shall not affect any accrued rights or liabilities of either Party under the Agreement.

 

  • The termination cannot be requested by the Customer if Omoove complies with its obligations under Clause 9.

 

 

  • No Party shall assign or otherwise transfer any of its rights and/or obligations under the Agreement to a third party.

 

  • Notwithstanding the above, subject to prior written notice and provided that the assignee is financially sound and executes the Agreement, Omoove may assign the Agreement to any company of the Octo Group.

 

 

  • For the duration of the Agreement the Customer in any manner, directly or indirectly, shall not, directly or indirectly:

 

  • acquire or use other solutions and/or services and related HW from providers different from Omoove and/or Octo Group;
  • carry out activities for actual or potential customers of Omoove or any other person or entities which may be in competition or conflict of interest with Omoove and/or Octo Group;
  • enter into any agreement with or otherwise engage or solicit any of Octo’s suppliers for purposes of acquiring Solution components similar to those provided by the same in accordance with this Agreement.

 

 

  1. PUBLIC ANNOUNCEMENTS AND DISCLOSURES.

 

  • The Parties agree to coordinate the release of any public announcement or disclosure to third parties, including authorities and the press, about the subject matter of the Agreement.

 

  • The disclosure by a Party to third parties of any information regarding the Agreement will be allowed only insofar as it is necessary to satisfy organisational or financial needs of the Party, to fulfil a legal obligation, or if so ordered by any public authorities competent to require such disclosure under the applicable law.

 

  • Omoove is allowed to add the name of the Customer in its reference list and to disclose the reference list.

 

 

  • No amendments or integration to the Agreement, except in the case of Clause 4.2, shall be valid and binding on the Parties, unless it is in writing, refers expressly to the Agreement and is executed by the duly authorized representative of the Parties.

 

  • In the case that one or more of the Clauses in the Agreement is considered invalid or non-enforceable, this shall not cause the remaining clauses in the Agreement to be invalid and they shall continue to have full validity and effectiveness.

 

  • Tolerance and Waiver. The failure of any of the Parties to enforce any of the provisions of the Agreement at any time shall in no way be construed to be a waiver to such provisions, or of any other provision of the Agreement. No waiver of any breach of the Agreement shall be held to be a waiver of any other or subsequent breach.

 

  • Fees and expenses. Except as otherwise specifically provided in the Agreement, or subsequently agreed in writing by the Parties, each Party shall bear its own costs and expenses associated with the negotiation of the Agreement, including, but not limited to, all fees and expenses of such Party’s respective counsel, accountants, advisors and other agents and experts, including financial advisors and bankers.

 

  • Code of Ethics. The Customer undertakes to comply with the clauses contained in the Code of Ethics adopted by Octo published on the website of Octo at the following address http://www.octotelematics.com also according to Decree n. 231/2001, and affirms to be aware that the violations of the provisions contained in the Code of Ethics entitle Omoove to terminate the Agreement.

 

  • Non  solicitation. For the entire duration of the Agreement and for three years after its termination (the Non-Solicitation Period), the Customer shall not entice away or solicit to entice away, whether directly or through third parties, any person employed by Omoove or any other company controlled by or affiliated to Octo (the Octo Group). In     particular, the Customer shall not, whether directly or indirectly, also through companies controlled by or affiliated to the Customer:
  • hire under an employment contract, any person that is or has been employed by Omoove or the Octo Goup during the Non-Solicitation Period (the Octo Employees);
  • avail itself of any Octo Employee through agency work contract;
  • enter into self-employment contracts with any Octo Employee;
  • offer to any Octo Employee, also through work agencies, recruitment companies or head hunters an employment contract or a self-employment contract.

In the event of failure to comply with this obligation, the Customer will pay to Omoove a penalty of Euro 100.000 per each Octo Employee solicited or actually   enticed away, without prejudice to the right to request further damages, if any.

 

 

  1. DISPUTE RESOLUTION.

 

  • In case of any dispute between the Parties arising out of the Agreement, the Parties shall use their reasonable endeavors to resolve the dispute before commencing legal proceedings.

 

  • The representatives of the Parties, therefore, shall meet at least one time to discuss the dispute and evaluate possible solutions. If the dispute has not been resolved within 30 (thirty) days from the delivery of the notice which summarizes the contents of the dispute, either Party shall have the right to commence proceedings in court having jurisdiction.

 

  1. GOVERNING LAW AND JURISDICTION.

 

  • Governing law. The Agreement shall be governed by and construed in accordance with Italian laws with exclusion of the UN Convention on Contracts for the International Sale of Goods.

 

  • Any dispute regarding the Agreement shall be submitted to the Court of Rome.

 

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