GENERAL TERMS AND CONDITIONS OF THE AR MARKET VIRTUAL PLATFORM FOR THE PURCHASE OF 360° VIRTUAL SPACES
A) The present terms and conditions of use (from now on, for brevity, the “GTC” or the “Contract”) regulate the use of the services offered by the platform named AR MARKET VIRTUAL and accessible at the address https://www.armarketvirtual.it (the “Platform”), created and provided by the Company AR MARKET SRL, Viale di Val Fiorita 86, 00144 Rome (Italy) S.r.l, C.F./P.I. 14821441004, e-mail for communications firstname.lastname@example.org (henceforth, for brevity, the “AR MARKET”).
B) Terms used with a capital letter (“Definitions”) shall have the meaning set out below.
“AR MARKET” shall have the meaning set forth in Preamble A.
“GTC” or “Contract” Has the meaning set out in Preamble A.
“Customer” Means the person who adheres to these GTC and intends to use the services offered by AR MARKET.
“Content” Means any and/or all music, sound elements, photographs, images, videos, messages, or other material uploaded and/or published by the Customer on its Virtual Space.
“Fees” Have the meaning set out in Article 6.1.
“CMS” has the meaning set out in Article 2.2
“Data” Means any information relating to a natural person, such as, but not limited to, name, surname, date of birth, etc.
“Definitions” Have the meaning set out in premise B.
“Rights” means any and all rights arising from a patent, trademark, utility model, design, copyright or other industrial and/or intellectual property right, including also the right to one’s name, personal image and confidentiality of one’s personal data, honour, reputation, decorum, as well as commercial reputation.
“Rights to the AR MARKET Software” means all the Rights to the AR MARKET Software, expressly including the exclusive rights provided for by Law No. 633 of 22 April 1941, as amended and supplemented, and in particular Articles 64-bis et seq. of the same Law. By way of example only and, therefore, without any claim to completeness, the exclusive right to reproduce, execute, upload, process, adapt, translate, distribute, broadcast to the public, distribute elaborated and/or modified and/or adapted versions of the Software AR MARKET is included in the Rights to the Software AR MARKET.
“Package” means a particular configuration of the Services usable by the Customer (e.g. with a specific storage space, a specific number of maximum views, a limited number of customer contents, etc.). It is specified that the Services forming part of the Package are intended to be provided on a subscription basis for the duration chosen by the Customer.
“Parties” means AR MARKET and the Customer.
“Platform” has the meaning set out in premise A.
“Registration Procedure” or “Registration” Means the computerised procedure through which a given party (whether natural or legal person), after entering certain information, may create a user account on the Platform. The Registration must be validated, by means of an unequivocal positive action (click) on a specific link generated by AR MARKET and sent to the e-mail box of the subject carrying out the Registration Procedure.
“Services” has the meaning set out in Article 2.1.
“AR MARKET Software” Means the set of instructions, classes, codes, libraries, objects, functions, diagrams, style sheets, icons, functional and/or graphical interfaces underlying the Services and, in particular, the Platform.
“Virtual Space” The 360° Virtual Space is an interactive and navigable digital environment created from 360° images, videos or in “full custom” mode based on 3D modelling or scanning of real locations. Predefined 360° Virtual Spaces are available for certain categories (art, education, bars & restaurants, outdoor, virtual clubs) or customised developed according to the customer’s needs. Virtual Spaces reside on AR MARKET’s servers and can be identified with a Customer ID, which can be accessed via a dedicated connection.
The 360° Virtual Spaces can be customised with Customer Content (images, video, audio, links, pdf, etc.), within the limits of the particular type of Package purchased.
The customisation in the Alpha phase of the service is carried out by AR Market by uploading the content provided by the Customer, in the Beta phase the Customer may independently upload his own content via CMS/backend.
The 360° Virtual Spaces can be used from any device, desktop, mobile or VR visor, through the link that each Customer will be able to provide to its audience or third parties.
“Invited Users” Has the meaning set out in Article 7.4.
“Alpha Version” or “Alpha” Means the version of the Platform in which the upload of Content is carried out directly by AR MARKET.
“Beta Version” or “Beta” Means the version of the Platform in which the Customer will be able to upload Content independently, via a dedicated CMS.
Art. 1 – Premises, Definitions and updating of the GTCs
1.1 The Introduction and the Definitions form an integral and essential part of these GTCs.
1.2 The Definitions set out in these Terms and Conditions have the same meaning (except for the number) when used in the plural and vice versa.
1.3 AR MARKET reserves the right to update and amend the present Terms & Conditions at any time at its own discretion and, in any case, in the event that such updates and amendments are necessary in order to respond to legislative or regulatory changes or in order to introduce additional security measures relating to the Platform.
1.4 Updates and changes will be communicated to the Customer by means of an email to be sent to the address provided by the Customer during Registration.
1.5 It is expressly understood that changes and/or updates shall only have retroactive effect in the event that such retroactive effect is imposed by legislative measures and/or administrative, governmental or judicial bodies or authorities. In all other cases, the updates and modifications will be considered tacitly accepted by the Customer unless the Customer sends a written communication to AR MARKET – and in any case within 30 days – containing the manifestation of the Customer’s will not to accept the updates and modifications in question and to want to withdraw from the contractual relationship existing between the Parties.
Article 2 – Services of AR MARKET
2.1 AR MARKET shall provide the Customer with the following services (“Services”), within the limits of the particular configuration of the Package purchased, against payment of the Fees indicated in Art. 6
iii. customisation of the Virtual Space name;
2.2 In the Alpha version of the Platform, Content for customising the Virtual Space will be uploaded by AR Market, upon provision by the Customer. In the final Beta version, Customers will be able to upload their own Content independently through a dedicated Content Management System (“CMS”).
2.3 It is expressly understood that AR MARKET may update, further develop and/or integrate the software underlying the Platform and/or the Virtual Spaces at any time.
Art. 3 – Registration and effective date of the Contract
3.1 The Parties, with regard to the starting date of the effects of the Contract, acknowledge and agree that the provision of the services by AR MARKET to the Customer is subject to the completion of the Registration Procedure and to the payment of the first Fee for the chosen Package.
3.2 The Customer, if a natural person, declares and warrants under its own responsibility that it meets the age requirements under the law of its country.
3.3 AR MARKET reserves the right to periodically verify and check the accuracy of the Customer’s Data and, in the event of proven irregularities and/or inaccuracies (including those relating to the possession of the age requirements referred to in Article 2.4 above), subject to the procedure set out in Article 10 below. 2, also reserves the right to terminate this Contract without notice and, consequently, to disable the use of the Services by the aforesaid Customer, with the exclusion of any and all rights of the latter to reimbursement, compensation and/or damages, direct and indirect, pecuniary and non-pecuniary, potential, current, future, punitive (by way of example only: damages for loss of profits, goodwill).
Article 4 – Duration
4.1 The Customer may use the Services for the duration of 3 or 12 months depending on the Package purchased.
4.2 Automatic renewal on expiry is excluded.
4.3 The Customer’s right of withdrawal is expressly excluded.
4.4 Upon expiry of the Contract, the Customer shall have a courtesy period of 30 (thirty) days to request/receive a copy of the Contents uploaded on his/her Virtual Space, after which the Contents shall be irremediably deleted.
Article 5 – Fees
5.1 For the subscription purchase of a Virtual Space Package, the Customer undertakes to pay the following amounts (“Fees”)
(a) a monthly fee, for each month of the duration of the Contract (e.g. 3 months or 12 months), varying according to the Package chosen by means of a direct debit to the credit card registered upon completion of the Registration Procedure (“Monthly Fee”).
5.2 In case the Customer wishes a higher Package than the one already purchased, he shall place a new order or contact AR MARKET to agree on a further customization against additional fees that will be communicated in writing.
Art. 6 – Intellectual Property and Licences
6.1 The Customer acknowledges that all rights to the Platform, the Services and the AR MARKET Software, as well as to the graphic motifs, interfaces and any distinctive sign are the exclusive property of the Supplier and that the User expressly undertakes not to reproduce, modify, alter, remove, move, assign, license and/or distribute them to third parties.
6.2 Subject to the punctual payment of the agreed Fees, AR MARKET grants the Customer, for the duration of the present Contract, the exclusive, worldwide and sub-licensable right to use the Virtual Space object of the Contract in the terms and for the purposes set out in the Contract and to use the analyses, concepts and Content of AR MARKET, to the extent necessary for marketing purposes, without territorial limitation.
6.3 The Customer is expressly authorised to make the purchased Services available for use by authorised third parties, either against payment or free of charge.
6.4 The Customer, with reference to the Content, grants to AR MARKET a non-exclusive license, sublicensable to third party subcontractors of AR MARKET, for the entire duration of the present Contract, in respect of the Rights necessary for the performance of the present Contract (by way of example, the Right to process the Content, with reference to resolution and/or size, with a view to the best possible inclusion within the Customer’s Virtual Space).
Article 7 – Obligations of the Customer
7.1 The Customer represents and warrants that it owns the Rights to the Contents used to customize the Virtual Space and uploaded on AR Market’s servers.
7.2 The Customer grants AR Market the authorization to place, upload and store the Contents on the server of AR Market for the entire duration of the contractual relationship.
7.3 The Customer undertakes to use the Services in full compliance with the laws in force and, in any case, undertakes not to
(a) upload, post, share, in any manner or form, unlawful, illegal or prohibited Content, or Content associated with any type of unlawful, illegal or prohibited Content
(b) upload, post, share Content containing obscene, profane, pornographic, racist, denigrating, discriminatory, defamatory language or which, in any case, may damage the honour and/or reputation of AR MARKET, other users and/or third parties, natural persons and/or legal entities;
(c) upload and/or publish Content for which it is not the exclusive holder of the Rights;
(d) violate any Third Party Rights. In particular, in the event that the Content uploaded and/or published contains personal data of third parties, the Customer represents and warrants that he/she is acting in compliance with the privacy legislation in force;
(e) upload, publish, share, in any manner or form, through the Platform, Content and/or material preordained to the commission of unlawful activities, including but not limited to incitement to violence and/or the commission of crimes of any nature
(f) transmit viruses and/or other computer tools that may compromise the integrity and/or security of the Platform and/or computer equipment (so-called malware, trojan horses, etc.)
(g) carry out activities that are in any way related to spamming and/or any type of undesired interaction with other users
(h) reporting and/or disseminating links to websites where any of the above prohibited activities are carried out;
(i) hacking attempts, computer attacks, or attempts with a high number of requests generated to AR MARKET’s servers in order to prevent their activity, slow them down or make them inaccessible
(j) verify, scan or test system vulnerabilities, by automated and/or non-automated means;
(k) use and/or obtain and manipulate parts of the Services offered, for which no link invitation has been received;
(l) use any and/or all tools and/or techniques to exceed the storage space limits provided for the particular category of Package purchased.
7.4 If the Customer gives access to its Virtual Space to third parties invited by it (the “Invited Users”), it undertakes to ensure that, also pursuant to Article 1381 of the Italian Civil Code, the Invited Users comply with the provisions of this Article.
Art. 8 – Disclaimer of warranty, exclusions and limitations of liability
8.1 The Services shall be provided on a continuous basis, however the Customer acknowledges and agrees that limitations and/or impairments of the Services may occur due to causes beyond the control of AR MARKET. Examples include: actions of third parties not acting on behalf of AR MARKET, technical Internet GTCs beyond the control of AR MARKET, and situations of force majeure. Furthermore, the hardware and software used by the Customer and the technical infrastructure could affect the use of the Services of AR Market.
8.2 Therefore, without prejudice to article 1229 of the Civil Code, AR MARKET shall not be responsible for the limitations in the fruition of the Services due to the occurrence of the hypotheses mentioned in article 8.1.
Art. 9 – Indemnity
Art. 10 – Suspension of access to the Services
10.1 AR MARKET, also according to art. 1460 c.c., reserves the right to suspend, in whole or in part with exclusion of any indemnity, reimbursement and/or compensation, the use of the Services by the Customer in the following cases
10.2 In any case of suspension of the use of the Services, AR MARKET shall be entitled to claim compensation for any damage suffered.
10.3 Notice of Suspension. Without prejudice to the cases referred to in Article 10.1 a) and 10.1 c), the suspension of the Services shall be preceded by a notice from AR MARKET inviting the Customer concerned to send its observations in writing within a reasonable period of time that may not be less than 3 (three) days. The suspension may, however, be ordered at AR MARKET’s discretion after the expiration of the above-mentioned period and/or after receipt of written comments from the Customer.
10.4 Precautionary suspension. In the cases referred to in Article 10.1(d) and (e), AR MARKET may, but is not obliged to, suspend the Customer’s use of the Services as a precautionary measure by notifying the Customer by e-mail. The precautionary suspension shall, therefore, have immediate effect. However, the Customer shall be entitled to send its observations in writing to AR MARKET by e-mail. AR MARKET undertakes to reply in writing within 7 (seven) days and may, at its discretion, revoke the precautionary suspension or impose the penalties referred to in Article 10.4 below.
10.5 Sanctions. The Customer acknowledges and agrees that:
(a) with reference to the first violation of Article 10.1 lett. d) and e), AR MARKET may impose a suspension of use for 7 (seven) days;
(b) with reference to the second violation of Article 10.1 lett. d) and e), AR MARKET may impose a suspension of use for 14 (fourteen) days;
(c) from the third violation of the art. 10.1 lett. d) and e) AR MARKET will have the faculty, but not the obligation, to terminate the Contract, according to the art. 1456 c.c. by sending to the Customer a written communication in which it declares to want to make use of the express termination clause.
Art. 11 – Protection of Personal Data
Art. 12 – Appointment of AR MARKET as external data processor
12.1 The Customer, by adhering to the present General Conditions of Sale, appoints AR MARKET as external controller in accordance with Articles 28 and 29 of Regulation 679/2016/EU, with reference to the processing of: (a) the Data of the Users invited by the Customer to use the Virtual Space; (b) the Data of third parties present in the Customer’s Content.
12.2 AR MARKET undertakes to process the Data referred to in Article 12.1 only to the extent necessary for the provision of the Services and, in any case: (a) in accordance with the Customer’s documented instructions; (b) by designating in writing as authorised processors any employees and/or collaborators who carry out tasks involving the processing of the aforementioned Data and, in any case, in accordance with specific confidentiality obligations; (c) by ensuring that the Data is processed in accordance with the principles laid down in Article 5 of Regulation 679/2016/EU. 5 of Regulation 679/2016/EU; (d) adopting technical and organisational measures appropriate to the risk of the treatment; (e) notifying the Customer in case of inspections, requests for information and/or documentation by the Privacy Guarantor and/or other competent authorities, providing, to the extent of its competence, the support that may be required; (f) notifying the Customer as soon as possible and, in any case, not later than 48 (forty-eight) hours after it has become aware of a breach of the security of the Data and, in such case, providing all the information requested by the Customer.
12.3 AR MARKET, in accordance with art. 28.2 of the Regulation, is hereby expressly authorised to make use of other data processors, provided that they fall into the following categories: (i) managers of e-mail services; (ii) consultants and/or IT consultancy companies for the maintenance and/or adaptation of AR MARKET’s information systems; (c) suppliers of platform-as-a-service and/or infrastructure-as-a-service information services.
Art. 13 – Miscellaneous
13.1 The invalidity or ineffectiveness of any of the provisions contained in this Contract shall not render null and void or impair the validity or effectiveness of the remaining contractual provisions.
13.2 Any failure on the part of AR MARKET to exercise its rights and obligations under the present Terms and Conditions shall in no way constitute a waiver thereof and shall be deemed an act of mere forbearance.
13.3 All the communications foreseen by the present Contract can be sent, as far as AR MARKET is concerned, to the e-mail address indicated in the Preamble A) and, as far as the Customer is concerned, to the e-mail address provided during the Registration procedure. Each Party shall promptly notify the other of any change in its e-mail addresses, it being understood that in case of failure to correct them, the communications sent to the above-mentioned e-mail addresses and/or using the other contact methods indicated above shall have full validity and effectiveness.
Art. 14 – Applicable law and exclusive jurisdiction
Unless expressly provided otherwise by law:
(a) this Contract shall be governed by Italian law, with the exclusion of any reference to international private law;
(b) for any dispute relating to the validity, existence, interpretation, application, execution and/or termination of one or more clauses of this Contract, or in any way deriving therefrom, the Court of Rome shall have exclusive territorial jurisdiction, with the express exclusion of any alternative and/or competing jurisdiction.
* * *
Approval of vexatious clauses
Pursuant to art. 1341 and 1342 of the Civil Code, the Customer expressly approves, after having carefully read, the following clauses: 1.3 (unilateral modification of the GTC), 3.3 (withdrawal of AR MARKET for inaccurate Data), 4.3 (withdrawal exclusion), 7.3 (prohibitions), 8 (AR MARKET’s liability limitations), 10 (suspension of Services), 14 (exclusive jurisdiction)