PowerSet software General License Conditions
between
Feel Good Plus, a limited liability company, in the person of its legal representative pro tempore, base din Rome (RM) Via delle Alghe 70, 00126, Tax code and Companies’ Register number: 15741991002, certified e-mail: feelgoodplussrl@legalmail.it, SDI code: M5UXCR1 (hereinafter also referred to as Company or Licensor), works in the IT sector and owns the software called Powerset(™) (hereinafter, software),
and
The User (hereinafter also referred to as Client or Licensee), who manifested their interest in receiving the aforementioned software with an “inCloud” user license, since they deemed it suitable to their professional and entrepreneurial needs.
TABLE OF CONTENTS
- 1. Definitions
- 2. Subject
- 3. Software and trademarks intellectual property and ownership rights
- 4. Contract stipulation and effectiveness
- 5. Duration and renewal, data cancellation
- 6. Right of withdrawal
- 7. Costs and payment methods
- 8. Modifications to the general service terms
- 9. Licensee’s obligations and liabilities, indemnification in case of non compliance
- 10. Licensor’s obligations, guarantees and limitations
- 11. Suspension of the service
- 12. Data return, destruction and loss
- 13. Exclusion of liability for indirect damage
- 14. Glossaries, procedures and other data transmitted
- 15. Force majeure
- 16. Confidentiality clause and Personal data protection
- 17. Express termination clause
- 18. Escape clause
- 19. Applicable regulation, competent court and referral
1) Definitions
When reading and construing this agreement, the following definitions apply:
Licensor: Feel Good Plus, a limited liability company incorporated under Italian law, in the person of its legal representative pro tempore, holder of the rights on the software, which grants the license and provides the service governed by these general conditions
Licensee (also called User or Client): natural or legal person that uses the service for professional or personal purposes
Software (also called Program): IT program called Powerset(™) owned by Feel Good Plus, in the following versions:
- • PROFESSIONAL (Basic, Advanced, or Pro): Available through an inCloud dashboard, or in another remote access form, and including the activation of a specific patient data collection Database
- • TRIAL: Just like the PROFESSIONAL version, but available for a trial period of 14 days (or longer, if agreed otherwise), with possible functional limitations
- • APP: Available for free, with limited functions, or for a fee, in app version for smartphones, tablets or other compatible hardware, and destined to patient use, for monitoring and recording cures and treatments.
Website (also called Site): The licensor’s website at www.mypowerset.com (hereinafter, Website or Site).
Service: Set of functions ensured to the user through the software, after an account is activated
Additional Services: Additional services to the software service
Activation: Service subscription by filling out the online registration form on the website, through which the User provides their data and accepts these contractual conditions
Fee: Amount paid to use the software, to be paid in advance when the service is activated, and due only for the software “Professional” or “Fee-Based App” versions
2) Subject
The licensor grants the user license for the software called Powerset(™) to the licensee. The user license is granted on a non-exclusive basis, and it cannot be transferred to third parties, in any case.
The service is provided by the licensor in the ways and for the fees indicated on the website, and consisting in the following functions:
- a. Internet access to the Powerset software, especially developed by the licensor to provide technical aid, support, management and monitoring of physical therapy, training and recovery treatments
- b. Service user account activation, including configuration of a personal database, containing the user and their patients’ data, and the software login credentials
- c. Non-periodical updates, at the service licensor’s discretion, pursuant to point a)
- d. Instructions and support for the service indicated in point a), via the additional service in the website support section, according to the methods indicated
3) Software and trademarks intellectual property and ownership rights
The licensor is the exclusive owner of the Software and all its copies, regardless of the support used or the method of use and access. The User License does not grant any right on the original source Software. All techniques, functions, algorithms, and procedures contained in the Software and in the related documents are protected by copyright and are owned by the licensor; therefore, they cannot be used by the client, in any way, for different purposes and beyond the limits indicated in the contract and in the annexes. The client is expressly prohibited from transferring or sub-licensing the product to third parties, or, in any case, from allowing its use to third parties, both for free and for a fee.
All registered and unregistered trademarks, and any ore distinctive mark, name or image on the software or on the website, as well as the related documents, are and will remain property of the licensor, without any licensee’s right on them resulting from this agreement. The User undertakes not to copy, destroy, alter or mix up those marks, distinctive features and names, and undertakes to include them in any back-up copies.
4) Contract termination and effectiveness
The contractual relationship shall be stipulated for paid services once the fee is paid, without any notification requirements, and by simply launching the service activation procedures.
Once the fee has been paid, no returns for subscriptions or any other additional service fees requested by the licensee will be allowed.
5) Duration and renewal, data cancellation
The paid-service contractual relationship lasts for the period selected at the moment of the subscription, starting from the date of service activation, with delivery of the login codes (Login and Password) to the licensee.
Renewal must be done by the client at every expiration date, or even after, by following the instructions that the licensor will transmit via email, when the contract expiration date is near. Until the service is renewed, all services are suspended, and no performance may be requested by the licensee.
If the service is not renewed for 12 months, the licensor has the right to cancel the data in the user database.
6) Right of withdrawal
Non-professional clients may withdraw from this contract within fourteen days after the request.
In any case, the client acknowledges that they may not exercise the right of withdrawal if the service has been partially provided.
To exercise your right of withdrawal, send a registered letter or certified email to the licensor’s address, as specified above, within the aforementioned term. Notification can be sent also via standard e-mail, telegram, telex or fax, within the same term, provided that it is confirmed via registered letter with return receipt within the following 48 hours.
7) Costs and payment methods
Costs and payment methods are indicated on the licensor’s website.
8) Modifications to the general service terms
The licensor reserves the right to update the service and additional services technical specifications at any time, to improve their performance and functions. If the modification entails new use methods, they shall be notified on the website.
In addition, the licensor reserves the right to update the service and additional service fees at any time, for whatever reason, by publishing the new price lists on the website. In case of renewal, when paying the new fee, the licensee will tacitly agree to the modifications.
9) Licensee’s obligations and liabilities, indemnification in case of non compliance
By adhering to the service an the additional services, the client declares to be aware of the software functions and to deem them suitable to their professional or private needs.
Service activation and software use by the client do not give them any rights on codes, techniques, functions and procedures, which remain property of the licensor, and cannot be used for purposes other than those agreed and indicated on the website.
The client undertakes not to grant use of or sub-licence the service to third parties, including any subsidiary, parent or associate companies of the same group as the Licensee, for free or for a paid fee.
The client undertakes not to transfer to third parties (as defined in the previous paragraph), in whole or in part, the alphanumerical codes (called Username and Password) required to use the service, to safeguard them and store them with utmost care and confidentiality; in case of failure to comply with the obligations set forth in this agreement.
The client shall be solely liable for the accuracy of entered or delivered data.
The client ensures that all information and personal data entered when the service was requested or at a later time are accurate and complete, and they agree to be the only responsible and hold the licensor harmless against any damage to third parties.
In addition, the client undertakes:
- a. Not to carry out any modification, translation, reverse engineering, rebuilding, copy or any other similar activity on the software
- b. Not to use the service to carry out communications that damage, harass or upset third parties, or in any case violate current regulations
- c. Not to use the service to disclose documents or other materials with a defamatory, obscene, blasphemous, racist, pornographic nature, or in any case against common decency
- d. Not to use the service in violation of the laws on confidentiality
- e. Not to use the service to disclose copyrighted material without the holder’s consent
- f. Not to grant use of the service to unauthorized third parties
- g. Protect their IT systems against unauthorized access or viruses
In case of failure to comply with the aforementioned obligations, the client undertakes to guarantee and hold the licensor and its delegates or representatives harmless, or, in any case, to compensate them for any claim filed against them, and against any pecuniary or non-economic damage suffered by the clients or by third parties.
The client undertakes to promptly notify any complaint or uncertainty related to the services received, with the methods indicated, through the relevant support service.
In any case, the client undertakes not to file any legal action against the website or its consultants, without first informing them of any issues that have arise, and allowing the licensor to solve them.
10) Licensor’s obligations, guarantees and limitations
For paid services and for the contract duration, the licensor undertakes to ensure the main/additional service continuity and quality, as described on the website, without prejudice to the following articles.
The licensor guarantees to be the sole owner of the licensed software, and that it complies with the technical and functional features described on the official service website. This warranty refers solely to application-related functional defects. It does not extend to faults due to faults, incorrect use and/or unusual software use by the licensee or by the client’s software or hardware.
In no case will the licensor agree to compensate for further claims, concerning direct or indirect damage suffered by the licensee or by third parties, and related to the main/additional service suspension, use or non-use.
11) Suspension of the service
The user undertakes and declares that, without prejudice to the following paragraph, they shall waiver any claim against the licensor, for any inefficiency that may compromise access to the platform or its correct and complete functionality.
The licensor does not ensure continuity of the inCloud software connection, and, therefore, it shall in no way be liable for any technical fault that prevents connection (in whole or in part) to the service, the website, single pages of it or the database.
The licensor shall not be liable for main/additional service interruptions due to unforeseeable, exceptional and force majeure causes, such as hacker attacks, national/international telephone and electric lines and/or networks, and/or to its own or third-party equipment required to provide the service, and not depending on the licensor’s negligence.
If the main/additional services are suspended due to one of the reasons above, the licensor shall not be required to pay back the price fee for the main/additional services equivalent to the missed period. Only if the suspension is general, concerns all users and services, and lasts for over 48 consecutive hours, the client will have the right to extend the contract for a period equivalent to the suspension’s.
12) Data return, destruction and loss
Through software functions, the user can make a copy of any input and processed data, for the entire contract duration. After this period, data shall be retrievable for further 30 days, upon request. The Client acknowledges that, 12 months after the Contract has terminated, any data and/or information and/or content input in the Software or in the database will no longer be retrievable; in addition, the client undertakes to promptly make a copy of such data and/or information and/or content, now for then, in the ways indicated in the service.
In any case, even before the contract termination, the user releases and holds the licensor harmless in case of loss or total/partial damage to the data and/or information and/or content input by the user.
13) Exclusion of liability for indirect damage
In no case will the licensor, its suppliers or any related third party be liable for damage (including, but not limited to, damage caused by loss or missed income, activity interruptions, loss of filed information or other economic losses), resulting from the use of the software of from attacks to the IT system. Even if the licensor is liable, any compensation or indemnification allowed shall be limited to the amount actually paid for the annual service, which the parties agree as penalty clause, with the exclusion of any greater damage. In no case will the licensor be liable and be ordered to pay any compensation or indemnification in case of free or trial software or service use.
14) Glossaries, procedures and other data transmitted
Concerning glossaries, physical therapy procedures or any other information accessible through the software, there is no guarantee that they are accurate, correct, updated, useful for the patient or that they do not involuntarily breach the law in force in a certain Country.
Information provided is of general, non-professional nature, and they are published solely to support the intervention of a professional; therefore, they can never replace the opinion of a doctor (i.e. a legally qualified professional) or of other healthcare professionals.
15) Force majeure
Neither party shall be liable for the failure to comply with the obligations set forth in this contract, if caused by an unforeseeable and unpreventable event outside their control. For the purposes of this clause, and by way of example only, a force majeure event includes: declared and undeclared wars, natural disasters, explosions (including atomic and nuclear explosions), fires and destructions, boycotting, strikes and lockouts of any kind, epidemics, pandemics, and action of legitimate or non-legitimate Authorities.
If a force majeure event occurs, the party that suffered its consequences, being in default, shall immediately inform the other party of such event in writing.
For the entire period during which the force majeure event or its effect will last, the non-complying party shall not be liable for its incapacity to fulfil the obligations, whose execution is prevented by the force majeure event.
16) Confidentiality clause and Personal data protection
The licensee undertakes not to disclose the technical aspects and solutions adopted in the main/additional services, especially concerning any customization adopted.
The licensor undertakes to implement all necessary measures to ensure data protection, pursuant to the GDPR – General data protection regulation (EU 2016/679) and subsequent amendments.
Personal data provided by the client to the licensor are protected by Articles 13 and 14 of the GDPR (European Regulation 679/2016), concerning data protection. The Data Controller is the licensor, as identified above.
Provision of all contract-related data is strictly related to its performance, therefore, in case of non-consent, the contractual relationship may not be executed.
For information on the privacy policy and on how to exercise your data subject rights, see the licensor’s website.
17) Express termination clause
Failure to comply with any of the obligations resulting from this agreement – including the most trivial ones – by the licensee, shall entail its immediate termination, pursuant to Art. 1456 of the Civil Code, without any right of reimbursement of any amount pay, which shall be allocated as penalty for the non-utilized portion, without prejudice to the right of claim for further damage.
18) Escape clause
The licensor reserves the right to edit each one of the clauses in this contract, at its own discretion, and to notify it to the client on the website or by sending a specific communication. If, within 30 days after the modifications have been made, no observation on them is made, or the service is not cancelled, they will be deemed as accepted.
19) Applicable regulation, competent court and referral
This Agreement is ruled by the Italian law. Without prejudice to law, the parties agree that any dispute – including those related to the validity of this agreement – shall be solved exclusively by the Court of Milan.
For any matter not included in this agreement, see the applicable provisions in the Civil Code and in special laws.
By confirming the order on the website page, the client explicitly accept – also pursuant to and to the effects of articles 1341 and 1342 of the Civil Code – to have read and agreed to the clauses contained in the articles specified below: 3) Software and trademarks intellectual property and ownership rights, 4) Contract stipulation and effectiveness, 5) Duration and renewal, data cancellation, 6) Right of withdrawal, 8) Modifications to the general service terms, 9) Licensee’s obligations and liabilities, indemnification in case of non compliance, 10) Licensor’s obligations, guarantees and limitations, 11) Suspension of the Service, 12) Data return, destruction and loss, 13) Exclusion of liability for indirect damage, 14) Glossaries, procedures and other data transmitted, 15) Force majeure, 16) Confidentiality clause and Personal data protection, 17) Express termination clause, 18) Escape clause, 19) Applicable regulation, competent court and referral
