General terms of service

1. Definitions

“Client” means any natural or legal person, identified in the Offer, who enters into the Agreement in the course of their business, commercial, craft or professional activity.

“General Terms” means these general terms of service for the provision of the Solutions and their annexes, in particular the Chart of Solutions offered by WEBSOUL attached below, which form an integral part of the General Terms themselves.

“Agreement” means the entire contractual documentation relating to the provision of the Solutions, which includes the General Terms, the Offer, any technical documentation delivered to the Client, WEBSOUL’s privacy notice and the appointment of WEBSOUL as External Data Processor (where required).

“Fee” has the meaning set out in paragraph 7.1.

“Client Data” means the Client’s information or other data, including any personal data, processed, stored or transmitted by WEBSOUL on behalf of the Client.

“Materials” has the meaning set out in paragraph 14.1.

“Offer” means the specific contractual conditions for the provision of the Solutions chosen by the Client, which apply according to the Client’s needs and which prevail over the General Terms in the event of conflict.

“Parties” means the Client and WEBSOUL jointly.

“Solution(s)” means the various services offered by WEBSOUL to the Client, the provision of which is governed by the Agreement. The Solutions are described in the Chart of Solutions offered by WEBSOUL attached below and are provided to the Client according to the choice expressed in the Offer.

“WEBSOUL” means the sole proprietorship Websoul di Riccardo Iobbi, with registered office at via Belvedere 21 – 40069 Zola Predosa (BO), Italy, tax code BBIRCR00P20A785A, VAT no. 04056271200, provider of the Solutions.

2. Scope

The General Terms apply to the offer and provision of the Solutions to the Client by WEBSOUL, according to those chosen by the Client in the Offer.

3. Conclusion of the Agreement

The Agreement is deemed concluded on the date it is signed by the Client.

After the Agreement has been signed, WEBSOUL will send a copy of it to the Client, in paper or electronic form.

4. Subject matter of the Agreement

By accepting the General Terms and concluding the Agreement, WEBSOUL undertakes to provide the Client with the Solutions chosen in the Offer, within the limits and in the manner set out in the Agreement, in return for payment of the Fee by the Client under the terms provided for in the Agreement.

Any service beyond what is provided for in the General Terms, the Offer and, more generally, the Agreement may be provided at the Client’s specific request, on conditions, terms and fees to be agreed with WEBSOUL in the Offer.

The Client acknowledges and accepts as of now that, for the full or partial performance of the Agreement, WEBSOUL may make use of employees, assistants, collaborators and external consultants.

5. Availability of the service; changes and suspension

Where applicable, and in particular with regard to the Solutions of the Web Design Area, WEBSOUL undertakes to make every reasonable effort to keep the Client’s website available and working. It is understood that any malfunction not attributable to WEBSOUL will not engage its liability.

The Client undertakes to cooperate and to check diligently that an error actually exists before submitting a request for assistance and/or intervention to WEBSOUL.

Without prejudice to the following articles on the express termination clause and the right of withdrawal, WEBSOUL, at its discretion and without the exercise of this right being deemed a breach or violation of the Agreement, reserves the right to suspend, in whole or in part, the provision of one or more Solutions, even without notice, where:

• events of force majeure occur, or circumstances which, in WEBSOUL’s sole judgement, require emergency work or work to resolve security problems or danger to the entire network and/or to persons or property; in such cases the provision of the Solutions will be restored once WEBSOUL, at its discretion, has determined that the causes of the suspension have actually been removed or eliminated;
• the Client is in breach of, or violates, even just one of the provisions of the Agreement;
• there are justified reasons of security and/or confidentiality;
• the Client is involved, in any capacity, in any judicial or extrajudicial dispute of a civil, criminal or administrative nature, and in any event where that dispute concerns acts and conduct carried out through the use of the Solutions.

In any case of suspension attributable to the Client, WEBSOUL’s right to seek compensation for damages remains unaffected.

During a suspension, for whatever reason, the Client acknowledges and accepts that it will have no claim against WEBSOUL by way of compensation, indemnity, refund or on any other basis.

Suspension does not interrupt the obligation to pay the Fee accrued and accruing during the suspension period, in the manner set out in the Offer.

The Client acknowledges and accepts that WEBSOUL reserves the right to change and/or replace, at any time, including after the Agreement has been signed, the range and/or type of Solutions offered in the Chart of Solutions attached below to the General Terms, notifying the Client by e-mail with 90 days’ notice. Should WEBSOUL decide to discontinue the offer of one or more Solutions, it will in any case undertake to guarantee the Client the provision of the Solution until the expiry of the Agreement (or, in the event of tacit renewal, of the contractual period). The Client retains the right to withdraw from the Agreement, should the new changes not meet with its approval, by notifying WEBSOUL before the date on which the changes take effect. Failing this, the changes will be deemed definitively known and accepted by the Client.

6. Security, integrity and availability of data

In performing the Agreement, and in particular with regard to the Solutions of the Web Design Area, WEBSOUL undertakes to adopt and maintain appropriate tools to protect the security, confidentiality and integrity of the Client Data against unauthorised access, without prejudice to the Client’s responsibility to ensure, within its own remit, an adequate level of security to protect the Client Data.

WEBSOUL may access, modify and/or disclose the Client Data to ensure the proper performance of the Agreement, or where requested by the Client.

Provided that WEBSOUL complies with the undertakings in this paragraph, and except in cases of wilful misconduct or gross negligence, WEBSOUL cannot in any way be held liable should unauthorised third parties gain access to the Client Data. In that event, WEBSOUL undertakes to make every reasonable effort to promptly report to the Client any unauthorised access to the Client Data of which WEBSOUL becomes aware, and to remedy any security breach that allowed the unauthorised access.

7. Fee, payment methods and terms

In return for the provision of one or more Solutions to the Client, the Client must pay WEBSOUL the Fee indicated in the Offer.

The Client acknowledges and accepts that payment of the Fee to WEBSOUL must be made by the Client in the manner indicated in the Offer. The Client further acknowledges and accepts that it is the Client’s express and exclusive responsibility to pay the Fee in good time so as to guarantee the continuity of the effects of the Agreement, taking into account, for this purpose, payment processing times as well.

VAT (where due) will be applied to all invoiced amounts and, together with any other tax charge arising from the performance of the Agreement, will be borne by the Client.

Without prejudice to the above, the Client acknowledges and accepts as of now that, in order to avoid the suspension referred to in paragraph 5 above, payment of the Fee must be correctly credited and recorded by WEBSOUL no later than the deadline granted by WEBSOUL.

The Client expressly acknowledges and accepts that the invoice will be sent in electronic format through the Italian Interchange System (SDI).

8. Late or non-payment

The Client may not raise any objection of any kind against WEBSOUL unless it has first correctly paid the Fee in the manner agreed in the Offer.

In the event of non-payment or partial payment of the Fee due by the agreed deadline, WEBSOUL reserves the right to terminate the Agreement pursuant to Article 1456 of the Italian Civil Code, by sending the Client a notice to that effect.

In the event of non-payment, partial payment or late payment of the agreed Fee, the interest provided for by Italian Legislative Decree 231/2002 applies.

Furthermore, should WEBSOUL grant the Client any deferral of payment, failure to pay (or late payment by more than 7 days) of even a single instalment will entitle WEBSOUL to cancel the deferral, making the entire amount due immediately payable.

9. Term of the Agreement. Renewal

The Agreement governs the offer and provision of the Solutions by WEBSOUL to the Client, with effect from the date of conclusion of the Agreement as provided for in paragraph 3.

The term of the Agreement varies depending on the Solutions selected by the Client in the Offer:

• Web Design Area Solutions: indefinite term, unless terminated by notice given by one Party to the other by registered letter with return receipt or certified e-mail (PEC) with at least 30 days’ notice. During the notice period, the Client may ask WEBSOUL to transfer the website’s domain, which WEBSOUL will carry out within 30 days of the request. At the end of the 30 days’ notice the Agreement will be terminated and WEBSOUL will have the right to take the Client’s website offline, without prejudice to the provisions on intellectual property rights in paragraph 14 below.
• Branding Area Solutions: instantaneous term, deemed ended by performance of the Agreement upon delivery to the Client of the material agreed with WEBSOUL, according to the Solution(s) chosen by the Client, subject to payment of the Fee. No withdrawal is provided for this type of Solution.
• Marketing Area Solutions: one-year term, tacitly renewed from year to year, unless terminated by notice given by one Party to the other by registered letter with return receipt or certified e-mail (PEC) with at least 30 days’ notice. It is understood that campaigns in progress when the Agreement ceases to have effect will be taken offline and no refund will be due to the Client.

Without prejudice to any provision in the other documents making up the Agreement, the Client acknowledges and accepts that on the expiry date of the Agreement without renewal, or in any case when the Agreement ceases to have effect for any reason, the Parties will automatically be released from their respective obligations.

10. Warranties

WEBSOUL warrants, for the entire term of the Agreement, that the changes made pursuant to paragraph 5 will not substantially reduce, to the Client’s detriment, the quality standard of the Solutions provided. Should the Client, during the performance of the Agreement, detect a breach of the warranties given, it must promptly notify WEBSOUL, providing all the relevant details, no later than 8 days from discovery. WEBSOUL, as the Client’s sole and exclusive remedy, will intervene in the manner it deems appropriate at its discretion to remedy, at its own expense, what has been reported.

Unless otherwise provided in these General Terms, the Client is not granted, either directly or indirectly, any other express or implied warranty in relation to the Agreement, such as, by way of example, warranties on the effectiveness of the Solutions with respect to the Client’s objectives and/or wishes (e.g. increased online traffic, more customers, business growth, better market positioning, etc.), nor warranties regarding the use of any third-party applications and/or services. Furthermore, the Client declares that it has not relied on any statement not expressly set out in these General Terms.

The limitations of warranty and of the related remedies in this paragraph apply to the fullest extent permitted by applicable law and in any case without prejudice to cases of wilful misconduct and gross negligence.

11. Exclusions and limitations of liability

The Client acknowledges and accepts that, to the fullest extent permitted by applicable law and in any case except in cases of wilful misconduct or gross negligence, WEBSOUL cannot in any way be held liable for damages of any nature and type, and in general for any prejudicial consequence, arising (a) from malfunctions, defects and/or limitations in the provision of the Solutions chosen by the Client, it being understood that WEBSOUL, in such a case, will do what is reasonably expected to assist the Client and remedy such defects, subject to an adjustment of the Fee where resolving the problem involves activities going beyond what is reasonably expected; (b) from the failure to resolve, or the incomplete or late resolution of, errors, malfunctions and/or defects where the Client fails to cooperate promptly and fully in handling such circumstances, or for reasons attributable to third parties; and/or (c) from malfunctions caused by the Client’s tools, or otherwise attributable to the Client, by the Internet, by third-party services and/or by third-party applications.

Where the Client has chosen the Solutions “Custom Website Design”, “E-commerce Design and Development”, “Website Redesign and Restyling” or “Landing Page Development”, any liability of WEBSOUL is also excluded in the event of suspension/interruption of access to/use of the website due to: (i) the need for WEBSOUL to carry out emergency work or work to resolve security problems attributable to third parties; (ii) tampering with, or work on, the website not authorised by WEBSOUL and carried out by the Client or by third parties. In such circumstances, access to and use of the website will be restored once WEBSOUL has determined that the causes of the suspension/interruption have actually been removed or eliminated. Furthermore, the Client acknowledges and accepts that WEBSOUL cannot in any way be held liable for the improper or unlawful use of the website.

Except in cases of wilful misconduct and gross negligence, should WEBSOUL be held liable, for any reason, cause or title, in relation to the Agreement, WEBSOUL will be liable only for direct damages, with the express exclusion of any other type of damage (including, by way of example, indirect and consequential damages), and WEBSOUL’s maximum aggregate liability may not exceed, in each contractual year (where applicable), the annual amount paid by the Client as the Fee.

To the fullest extent permitted by law, the Client acknowledges and accepts that (i) any claim arising from the Agreement on any basis (including, by way of example, cases of contractual and/or non-contractual liability) will be brought by the Client exclusively against WEBSOUL, the Client expressly waiving any claim against any party other than WEBSOUL.

12. Express termination clause

Without prejudice to any provision in other clauses of the General Terms, the Agreement will be deemed terminated with immediate effect, pursuant to and for the purposes of Article 1456 of the Italian Civil Code, where the Client:

• breaches the obligations set out in the Articles entitled “Fee, payment methods and terms”; “Client’s obligations and warranties”; “Intellectual and/or industrial property rights”; “Security and confidentiality of information”; “Appointment as Data Processor”; or
• assigns all or part of the Agreement to third parties without WEBSOUL’s prior written consent.

From the date of termination of the Agreement in the cases provided for in this article, the provision of the Solutions will be interrupted. Any balancing of Fees remains due, as does compensation for any damage suffered by WEBSOUL.

13. Changes to the Agreement

Should the assumptions considered in formulating the conditions of the Agreement change, including for circumstances beyond WEBSOUL’s control (by way of example but not limited to, changes in current legislation or measures and/or regulations of the relevant Authorities entailing greater burdens for WEBSOUL), WEBSOUL reserves the right to unilaterally amend those conditions, including, by way of example but not limited to, the Fee, the invoicing frequency or the payment terms and methods, notifying the Client by e-mail with 90 days’ notice.

Should the Client not intend to accept such changes, including those concerning the Fee, it may exercise its right to withdraw from the Agreement within the above period. If the Client does not exercise its right of withdrawal, the changes will be deemed definitively known and accepted by the Client.

14. Intellectual and/or industrial property rights

All so-called moral rights of intellectual and/or industrial property relating to the content created and produced by WEBSOUL for the Client in the performance of the Agreement (the “Materials”) are and remain the exclusive property of WEBSOUL. Nothing in these General Terms, or more broadly in the Agreement, is to be understood as a transfer to the Client of the full or partial ownership of moral rights of intellectual or industrial property in the content created or produced by WEBSOUL, while the rights connected with the Materials remain with the Client. By way of example but not limited to, the Client may not, directly or indirectly, nor allow or help third parties to (i) use the Materials to store, transmit and/or disseminate defamatory, offensive or otherwise unlawful content, or content infringing third-party rights, or to store, transmit and/or disseminate content in breach of personal data protection legislation; (ii) use the Materials to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or dangerous code, files, scripts, agents or programs; (iii) access, modify or destroy without authorisation any information and/or data owned by WEBSOUL by fraudulent means or by means of any device, or even just attempt to do so; (iv) lead others to believe or suggest that the ownership of the moral rights in the Materials lies with one or more parties other than WEBSOUL.

The Client undertakes to promptly notify WEBSOUL of any counterfeiting or infringement of WEBSOUL’s trademarks, names and distinctive signs, as well as any acts of unfair competition of which it becomes aware. The Client acknowledges and accepts that only WEBSOUL is entitled to take the actions it deems most appropriate and/or necessary against such counterfeiting and/or infringements and/or acts of unfair competition.

Likewise, WEBSOUL undertakes to promptly notify the Client of any counterfeiting or infringement of the Client’s trademarks, names and distinctive signs, as well as any acts of unfair competition of which it becomes aware in the course of performing the Agreement. WEBSOUL acknowledges and accepts that only the Client is entitled to take the actions it deems most appropriate and/or necessary against such counterfeiting and/or infringements and/or acts of unfair competition, without prejudice to WEBSOUL’s cooperation with the Client in gathering any information needed to proceed with such actions.

15. Security and confidentiality of information

The Client acknowledges that WEBSOUL has equipped itself with the means and/or tools deemed suitable to protect, in the most effective manner, the security of the information (physical, logical, IT and organisational) that may be exchanged between the Parties or that is in any case accessible by reason of the performance of the Agreement.

The Parties undertake not to disclose, or in any way make available to third parties, the confidential information known or handled in connection with the performance of the Agreement, in the absence of the other Party’s specific written consent.

The Parties mutually acknowledge that any personal data collected will be processed in compliance with security measures suitable to guarantee the confidentiality of such data.

WEBSOUL retains the right to transmit data or information to persons or consultants (including external ones) it has engaged to carry out activities related to the subject matter of the Agreement (by way of example but not limited to, photographers, graphic designers, data specialists, sound designers, accountants and bookkeeping experts), subject to those persons undertaking a confidentiality commitment.

16. Ethics clause

By concluding the Agreement, the Client undertakes not to hire and/or establish a collaboration relationship, even indirect, of any nature and content, with WEBSOUL’s employees and/or collaborators or external consultants, for the entire term of the Agreement and for one year after it ceases to have effect.

In the event of a breach of the above obligation, the Client will be required to pay WEBSOUL a penalty equal to twice the last gross annual salary (or, as the case may be, remuneration) paid by WEBSOUL to the employee and/or collaborator and/or external consultant, without prejudice to compensation for any further damage.

17. Final provisions

The Agreement cancels and replaces any other previous understanding between WEBSOUL and the Client concerning the subject matter of the Agreement. No amendment, addition or clause added in any way to the Agreement will be valid and effective between the Parties unless specifically and expressly approved in writing by both. Any special arrangements with the Client must be made in writing and will constitute an addendum to the Agreement.

Under no circumstances may any breaches and/or conduct of the Client not in line with the Agreement be considered as derogations from it or as tacit acceptance of them, even if not contested by WEBSOUL. Any failure by WEBSOUL to exercise or enforce any right or clause of the Agreement does not constitute a waiver of such rights or clauses.

Any ineffectiveness and/or invalidity, in whole or in part, of one or more clauses of the Agreement will not entail the invalidity of the others, which must be deemed fully valid and effective.

The Client acknowledges and accepts that WEBSOUL may disclose to third parties the Client’s distinctive signs and/or company name and/or other company details as a commercial reference for the promotion of its own products or services and in all of WEBSOUL’s commercial communications, such as websites, brochures, case histories and events, without this constituting a transfer or licence to WEBSOUL of any of the Client’s distinctive signs.

The Client undertakes not to assign the Agreement to third parties without WEBSOUL’s prior written authorisation.

The relationship between WEBSOUL and the Client cannot be understood as a relationship of mandate, representation, collaboration or association, partnership or other similar or equivalent contracts.

The Parties undertake to sign any further deed, to carry out any further formality and to see to any formality that the other Party may reasonably request in order to give full and proper performance to this Agreement.

The Client warrants that the data and information provided for the conclusion of the Agreement are true and correct and such as to allow the Client to be identified and reached, and undertakes to notify WEBSOUL of any change to them. The Client will be held solely liable for all damages suffered or to be suffered by WEBSOUL and/or third parties as a result of the inaccuracy and/or falsity of the information provided.

18. Notices

Unless otherwise agreed between the Parties, the Client must send any notices concerning the Agreement to: WEBSOUL di Riccardo Iobbi, via Belvedere n. 21, 40069 Zola Predosa (BO), Italy, by registered letter with return receipt, or by certified e-mail (PEC) to the address websoul@pec.it.

As regards any complaints, the Client must send them by registered letter with return receipt or by certified e-mail (PEC) to the contact details in paragraph 18.1.

19. Processing of personal data

The Parties declare that they have mutually fulfilled the obligations arising from the application of EU Regulation 2016/679 and of the legislation on the processing of personal data, having each provided the other Party with adequate information.

The Client warrants, with reference to the personal data of third parties that it processes as Data Controller, that it has previously provided them with the information referred to in Article 13 of EU Regulation 2016/679 and has obtained their consent to processing where required for the purposes indicated therein.

It is in any case understood that the Client acts, with respect to such data, as an independent Data Controller, assuming all the related obligations and responsibilities and holding WEBSOUL harmless from any dispute, claim or other matter that may be raised by third parties with reference to such processing.

The processing of the Client’s personal data, as communicated by the Client to WEBSOUL for the purpose of performing this Agreement, will take place in compliance with EU Regulation 2016/679, on the basis of the contractual obligations arising therefrom.

20. Governing law and jurisdiction

The Agreement is governed exclusively by Italian law.

For anything not expressly provided for in the Agreement, the Parties expressly refer, to the extent possible, to the laws in force.

Any dispute relating to the interpretation, performance and termination of this Agreement, including in precautionary and/or enforcement proceedings, will be subject to the exclusive jurisdiction of the Court of Bologna.

21. Appointment as Data Processor

Where one or more of the Solutions chosen by the Client so require, pursuant to and for the purposes of Article 28 of EU Regulation 2016/679 and the legislation in force on the processing of personal data, the Client appoints the sole proprietorship WEBSOUL di Riccardo Iobbi, with registered office at via Belvedere n. 21 – 40069 Zola Predosa (BO), Italy, tax code BBIRCR00P20A785A, VAT no. 04056271200, in the person of its owner and legal representative, as Data Processor.