BOPIS LIFE
End User License Agreement
This end user license agreement (“EULA” or “Agreement”) is entered into by Berco S.p.A. (“Berco”), with registered office in Copparo, Via I Maggio no. 237, corporate capital Euro 38,700,000 fully paid in, recorded with the Register of Enterprises of Ferrara, registration number and fiscal code no. 08482780155, REA no. FE- 130546, subject to management and coordination activity of Thyssenkrupp AG and the entity in whose name and on whose behalf the Application is downloaded and the individual or any other person on behalf of which such and individual is acting (“You”) and provides for the terms and conditions under which a Licensee and, hence, a User is allowed to install and use the Application owned and licensed by Berco, or by any of its Affiliates.
Without prejudice for any other definition provided by the following sections, for the purposes of this Agreement, the following capitalized terms shall have the meanings set forth below:
As used herein: (i) the terms “include” and “including” are meant to be inclusive and shall be deemed to mean “include without limitation” or “including without limitation,” (ii) the word “or” is disjunctive, but not necessarily exclusive, (iii) the pronoun “You” used in this EULA will refer to both Licensee / Sub-licensee and User and “Your” shall be construed accordingly, (iv) words used herein in the singular, where the context so permits, shall be deemed to include the plural and vice versa, (v) unless otherwise specified, all references to days, months or years shall be deemed to be preceded by the word “calendar” and “business days” shall mean Monday through Friday, exclusive of Berco observed holidays.
The headings of this Agreement are intended solely for convenience of reference and shall be given no effect in the interpretation or construction of this Agreement.
If You do not agree with the terms and conditions of this EULA, or if You do not have the legal age or authority to enter into this agreement, do not install or use the Application, and You must not accept this EULA.
The terms and conditions of this EULA also apply to any Upgrades, Updates, supplements, trial version of the application, if any.
in the event any such modification materially alters Your rights hereunder, Berco will attempt to notify You directly through a message sent to the email address You have provided to Berco, if any, or a pop- up window or other notification when you access or use the Application, and
such materially modified EULA will be effective upon the earlier of Your use of the Application with actual knowledge of the changes or thirty days after the changes are made available to You.
Your use of the Application - after modifications to the EULA become effective - constitutes Your binding acceptance of such changes.
If You do not agree to the Agreement as amended, You will have to withdraw from this Agreement, by notifying such a withdrawal to Berco and in this case the Licensee, all the Sub-licensees and all the relevant Users shall uninstall and discontinue the use of the Application at that time.
9 or later versions of the same. The Application may be grouped with third party software or services that are provided by third parties. Berco will use commercially reasonable efforts to identify such third party software or services in the documentation related to the Application. You acknowledge that your access to or use of any such third party software or services may be governed by additional third party conditions or policies, including privacy policies. Berco is not responsible for, and expressly disclaims, any liability in connection with any third party software or services or your access or use thereof.
Nothing in this EULA shall give to the Licensee, to the User or to any other person any right to access, use the source code, or constitute any license or sub-license of the source code of the Application.
Save for the above, access to the Application is granted only to registered personal accounts linked to one and only one Licensee (or Sub-licensee) profile.
User accounts must be registered by a Licensee’s (or Sub-licensee’s as the case may be) legal representative or authorized personnel; in this last case, the person registering to the Application, by making the registration and operating on and through the Application, represents and warrants to have received full legal powers and authorization from a legal representative of the Licensee (or Sub-licensee as the case may be) to register to the Application and to operate in the same in the name and on behalf of the Licensee (or Sub-licensee, as the case may be), whether applicable.
If the person registering a Licensee (or Sub-licensee, as the case may be) is not a company legal representative, this Agreement must also be accepted by a company legal representative and shall be thereafter binding on the respective company.
The person making the registration and operating on the Application in the name and on behalf of a Licensee (or Sub-licensee, as the case may be) (i) declares to be of the legal age, (ii) confirms that registration and use of Application service is voluntary, (iii) declares to have all rights and authorization to confer the information provided to the Application and allow Berco to process them, (iv) guarantees that all provided information is truthful, correct and complete, (v) when personal information related to others are provided, guarantees that the interested party (natural person) has been duly informed in advance about the communication of his/her personal data, whether by name or not, through Application to Berco and that to this purpose consent has been obtained by the interested party according to the Privacy Notice and that to this purpose any and all obligation provided by data protection applicable law have been (and will be) duly complied with, (vi) guarantees that provided information are accurate and complete and will be maintained up to date.
Should Berco have reasonable grounds to suspect that any information provided to Berco is fraudulent, inaccurate or incomplete (where such inaccuracy or incompleteness adversely impacts Berco’s ability to perform its obligations under this Agreement or subjects Berco, its Affiliates, or any of their respective assignees to additional obligations or liabilities), it shall have the right to suspend or terminate Licensee’s (or Sub-Licensee’s, as the case may be) and User’s right to access and use the Application immediately without notice.
User Credentials are personal and designated for and registered Users only and shall not be shared with other individuals.
Licensee may reassign User Credentials to another User if the former User no longer requires access to the Application. Any such reassignment shall be notified in advance to Berco and require to re-accept this EULA. Licensee may not add third parties as Users exceeding the number of authorized Users as provided by Section 3.3.
All terms and conditions of access to and use of the Application set forth in this Agreement shall apply to access to and use of the Evaluation Application or Evaluation Features.
The Application is controlled and operated from Italy, and it is not intended to subject Berco or its Affiliates to any jurisdiction or Laws other than the jurisdiction and Laws of Italy. The Application may not be appropriate or available for use in some non-EU jurisdictions.
Licensee must promptly notify Berco of any Sub-licenses that it is willing to grant, including but not limited to the name and description of the Sub-licensee.
Licensee is not permitted to resell or distribute the Application.
- and is jointly liable with the Sub-licensee for - the performance of this EULA by its Sub-licensee; (iii) Licensee is not in breach or non-compliant with any material provision of this EULA; (iv) the Sub-licensee, in Berco’s reasonable judgment, is not a competitor of Berco; (vii) all fees in connection with or resulting from the Sub- license required by this Agreement are timely paid by Licensee.
In case of Sub-license, Licensee shall remain responsible for its, its Sub-licensees’ and its Sub-licensees’ Users compliance with the terms and conditions of this EULA.
In case of Sub-license, any and all reference provided by this EULA to “Licensee” and “User” shall be regarded as made to “Sub-licensee” and “Sub-licensee’s Users”, unless otherwise provided.
notes. The Application may also collect and process other information arising from access to or use of the same Application or that is otherwise communicated through access to or use of the Application, including information collected from other sources or services, where enabled by the User (whether provided by third parties or Berco), that make such information available to the Application, such as, by way of example only and not limited to, photos, videos or information as to the geolocation.
(ii) You are solely responsible for all the Application User Data, including: (i) the accuracy, integrity, quality, legality, reliability, and appropriateness of the Application User Data; (ii) creating and maintaining backups and copies of all the Application User Data, including for use in the event of a disaster or loss of the Application User Data stored in the Application; and (iii) adopting procedures to identify and correct errors and omissions in the Application User Data and correcting such errors and omissions.
respect to such request, complaint, order or other document, including to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to such Personal Information.
You acknowledge and agree that the Application and the terms and conditions of this Agreement are the confidential and proprietary information of Berco and/or its Affiliates, and/or their respective licensors, suppliers, service providers, subcontractors and distributors, if any (“Confidential Information”). You undertake (a) to protect Confidential Information from unauthorized dissemination and use and not use or copy, or permit the use or copy of any of the Confidential Information, directly or indirectly, for any purpose other than the discharge of its duties and obligations arising from this Agreement; and (b) to use Confidential Information only for the performance of this Agreement and the exercise of any rights granted to you under this Agreement, (c) not to disclose any Confidential Information to any of your employees, agents, contractors or any other individuals, except to employees and contractors, each of whom are under confidentiality obligations no less restrictive than the requirements of this Section 7, and (d) not to remove or destroy any proprietary or confidential legends or markings placed upon or contained within the Confidential Information. You will not be liable for disclosure of Confidential Information which: (i) are already known without breaching this Agreement; (ii) were received from a third party without breach of an obligation of confidentiality owed to Berco or its Affiliates or their respective licensors, suppliers, service providers, subcontractors and distributors, if any; (iii) are independently developed; or (iv) becomes publicly known other than through your wrongful act.
The obligation provided in Section 7.1 shall be in force for the entire Term - and any renewal hereof - and for a period of 10 years following the expiration, withdrawal loss of effectiveness of this Agreement for whatever reason.
any other event analogous to those listed under (i) through (ii) occurs in the jurisdiction applicable to the Licensee;
the commercial relationship between Berco and the Licensee is no more effective for whatsoever reason or the Licensee has not purchased for a period of 6 consecutive months an amount of Registered Assets equal to at least 50% of the amount of Registered Assets purchased during the same period of the preceding calendar year;
at Berco’s sole discretion, the Licensee is not compliant with or is in default with any agreement possibly executed with the Licensee or the Sub-Licensee for the distribution of the Registered Assets.
The Licensee shall promptly notify Berco in the event of the occurrence of any of the foregoing instances as per (i) through (iii). Withdrawal by Berco pursuant to this Section 8.4 shall not entitle Licensee to any refund of any prepaid License Fees or other fees.
Upon termination for whatever reason of this Agreement, Licensee shall retain title and interests on the Measurement Kit, according to the respective terms and conditions of use.
Until the payment of the License Fees and of any Other Fees, the Application will not work and cannot be used by You. If the License Fee and any Other Fees are not paid by 30 (thirty) days of the due date, Berco shall have the right to terminate this Agreement, pursuant to article 1456 of the Italian Civil Code.
Acceptable forms of payment include bank transfers or credit card.
providers, subcontractors, suppliers or other distributors (individually and collectively, “Berco Indemnified Party(ies)”) arising from or relating to (a) Licensee’s access to or use of the Application in breach of any provision of this Agreement, or (b) any allegation that any information, materials or content that Licensee submits or otherwise makes available under this Agreement infringe, misappropriate or violate the intellectual property or other rights of a third party (each Claim under (a) or (b), a “Licensee Indemnified Claim”), and in each case Licensee will pay all damages finally awarded and settlement amounts entered into to the extent based upon such a Claim. Upon Licensee’s request and solely at its cost and expense, Berco shall provide Licensee with reasonable assistance with respect to the defense and/or settlement of such Claim.
(iii) use, modification, operation or combination of the Application with non-Berco software programs, data, equipment or documentation if such infringement would have been avoided but for such use, modification, operation or combination; (iv) compliance with Licensee’s designs, specifications or instructions. If the Application becomes (or in Berco’s reasonable opinion is likely to become) the subject of a Berco Indemnified Claim, Berco shall have the right, at its sole option, to obtain for Licensee the right to continue use of the Application or to replace or modify the Application so that it is no longer infringing. If neither of the foregoing options is reasonably available to Berco, then Licensee’s access to or use of the Application may be terminated at the option of Berco. Upon Berco’s request and solely at Berco’s cost and expense, Licensee shall provide Berco with reasonable assistance with respect to Berco’s defense and/or settlement of such Claim.
together with any custom developments created or provided in connection with or related to this Agreement and including all copyrights, trademarks and other intellectual property rights therein or relating thereto (“Application IP”), except as expressly granted to you in this Agreement.
If any Derivatives are created, notwithstanding the restrictions set forth above, Licensee and User will and hereby do assign to Berco irrevocably and without further consideration, all right, title and interest in and to such Derivatives and all intellectual property rights pertaining thereto in the European Union and in any other country. Except to the extent prohibited by applicable laws, if and to the extent that any Derivatives or any intellectual property rights pertaining thereto are not so assignable to Berco, Licensee and User will and hereby do grant to Berco an unrestricted, perpetual, irrevocable, non-terminable, transferable, worldwide, exclusive license (including the right to grant and authorize sublicenses through multiple levels) to any Derivatives and all intellectual property rights pertaining thereto for any and all purposes and in any and all media, whether alone or together or as part of any material of any kind or nature, and waive all moral and similar rights thereto.
Berco and its Affiliates, and each of their respective licensors, service providers, suppliers, subcontractors and distributors, if any (“Berco Parties”) provide no warranties or conditions, whether express, implied, statutory, or otherwise, including warranties and conditions of merchantability or fitness for a particular purpose in connection with the Application. Without limiting the foregoing and without prejudice to mandatory law provisions, none of the Berco Parties provide any warranty that the Application will be free from errors or interruption or be compatible with any hardware or software not explicitly specified in this Agreement. The Berco Parties disclaim any responsibility for any harm resulting from access or use of the Application. You agree that access or use of the Application is at your own discretion and risk and that You will be solely responsible for any damages to Your information systems or assets or loss of data that results from such access or use. Notwithstanding Your access to and use of the Application and regardless of any information provided through the Application (whether accurate or inaccurate) regarding the operation, maintenance or performance status of the Registered Assets, if any, you are solely responsible for, and assume all risk related to, the proper operation, support and maintenance of the Registered Assets. The foregoing exclusions and limitations are not intended to apply to: (a) death or bodily injury to the extent directly caused by a Berco Party’s gross negligence or fraud; or (b) fraud or willful misconduct. The Application is not intended to provide any emergency, mission critical or safety related functionality and you shall not use the Application in that manner. Berco does not guarantee any results or the accuracy of any results that you may obtain from the Application.
Without prejudice to the above, subject to the terms and conditions of this Agreement and to Licensee’s timely payment of the applicable License Fees or Sub-license Fees, as the case may be, Berco agrees to use commercially reasonable efforts to provide Licensee or Sub-licensee, on a free of charge basis (unless otherwise provided), with technical assistance with respect to the Application only. Any request for technical support shall be addressed exclusively to Bopislifesupport.berco@thyssenkrupp.com.
Without prejudice to the mandatory law provisions, the aggregate liability of the Berco Parties, on the one hand, or You and Your respective affiliates, licensors, service providers, subcontractors, suppliers or distributors, on the other hand, under or in connection with this Agreement will not exceed the amount of the paid license fee. For clarity, the foregoing constitutes a cumulative cap that is applied to all causes of action hereunder and is not to be applied on a claim-by-claim basis.
Nothing in this agreement excludes or limits a Party’s liability to the other Party for: death or bodily injury to the extent directly caused by a party’s gross negligence or fraud; or fraud or willful misconduct.
Pursuant to Legislative Decree no. 231/2001, Berco has implemented the model of organization and management (“Model 231”), of which the ethical code (“Ethical Code”) is an integral part.
The Model 231 and the Ethical Code contain, inter alia, appropriate provisions to prevent the commission of crimes, including the attempted crimes, in relation to which the penalties provided for in the Legislative Decree June 8, 2001 no. 231 are applied.
The Model 231 and the Ethical Code are published on https://www.thyssenkrupp-berco.com website.
In relation to Section 14.1, Berco confirms to comply with the principle of legality in relation to the law provisions in force and to behave ethically correct.
promptly fulfil the provisions of the Model 231 and Ethical Code - as from time to time updated and revised - published on www.berco.com website, in particular with reference to the provisions aimed at preventing the commission of the crimes, including the attempted crimes, in relation to which the penalties provided for in the Legislative Decree. 231/2001 are applied;
observe the principle of free competition and antitrust law in general;
not disturb and/or alter in any way the choice of the counterparties, and will refrain from promising money or other benefits, either directly or indirectly, to its stakeholders and/or counterparts in order to facilitate and/or ensure the execution of contracts;
comply with the rules on environmental protection and occupational safety.
the commission of one or more crimes referred to in Legislative Decree no. 231/2001 by You, with or without the application of temporary or definitive disqualifications measures,
are considered material breach of the obligations regulated by this Agreement. Consequently, Berco will be entitled:
It is understood that if Berco exercises even only one of the rights referred to in Section 14.4(ii)(a) and/or (b)(b)(i) 14.4(ii):
all the incurred extra expenses and costs will be borne by You, who will have the liability for any detrimental event or damage that may occur as a result of non-compliance as well as the obligation to keep Berco harmless from whatever third parties legal action arising or deriving from such non- compliance;
Berco will be entitled to request and obtain compensation for all damages, including indirect damages, suffered.
You shall not and shall procure that in connection with this Agreement neither You itself, nor You representatives, shall offer, give or agree to give to any person or accept or agree to accept from any person (whether for itself or on behalf of another person and either directly or indirectly) any gift or payment, consideration or benefit of any kind, which constitutes an illegal or corrupt practice under the laws involved (“Anti-Corruption Obligation”). You shall disclose in writing to Berco the details of any breach of the Anti- Corruption Obligation. This shall be an ongoing obligation.
at all times maintain strict compliance with the Anti-Corruption Obligation;
monitor Your representatives to ensure their compliance with the Anti-Corruption Obligation;
make clear, in all its dealings involving Berco or any of its Affiliate, that it is acting in accordance with the Anti-Corruption Obligation.
The breach of Sections 14.6 and/or 14.7 are considered material breach of the obligations regulated by this Agreement and, therefore, Berco shall be entitled to terminate this Agreement according to article 1456 of the Italian Civil Code.
place of business that cannot be derogated. The Parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Law on the Sale of Goods and the Uniform Law on the Formation of Contracts for the International Sale of Goods as well as any other international treaty or laws related to the conflict of laws.
Moreover, with respect to the use of any Apple’s service, You hereby represent and warrant that (i) You are not located in a Country that is subject to US Government embargo or that is on Title 15, Part 740 Supplement 1 Country Group E of the US Code of Federal Regulations, and (ii) You are not listed on any US Government list of prohibited or restricted parties.
Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement and, upon Your acceptance of the terms and conditions of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof; notwithstanding the
foregoing, Berco’s right to enter into or terminate any variation, waiver or settlement under this Agreement is not subject to the consent of any third party.
3.1 (Operating system requirements); 3.3 Registration to the Application. Account – representation and warranties of the registering party; 5.2 Sublicense’s conditions; 6.2 Use and Disclosure of Application Information; 6.3 Application User Data; 6.4 Communication Systems; 7 Confidentiality; 8.2 Withdrawal upon notice; 8.3 Termination for Cause; 8.4 Withdrawal; 8.5 Suspension; 9.2 Payment terms; 9.3 Sub-license payments; 10.1 Licensee’s Indemnity Obligations; 10.3 Entire liability; 10.4 Procedure; 12 No Warranty; 13.1 Limitation of liability; 14.8 Termination of the EULA for breach of 231 Model and Anti-corruption clause; 15.2No Assignment by Licensee; 15.7 Governing law; 15.8 Dispute Resolution.