Terms and Conditions Cloud Pens by Prodir

Last updated: 29/06/2021

These Terms and Conditions (henceforth "Terms") apply to the "Cloud Pens" service (henceforth "Cloud Pens Service") provided by Pagani Pens SA, Via Ponteggia 19 - 6814 Cadempino, Ticino, Switzerland (henceforth "Pagani").

About the Cloud Pens Service

The Cloud Pens Service is an additional service offered by Pagani (through its Prodir brand) to companies which purchase writing instruments. The Cloud Pens Service comprise the customization of writing tool with a QR code and a "software as a service" solution that is only offered together with the writing instruments and is not available separately as a stand-alone solution.

In essence, the Cloud Pens Service allows companies to extend their communication message from the pen to a digital environment, via an Internet page (landing page) connected to a QR Code printed on the pen, produced by Pagani. The Customer receives access to the web application administration of its Customer Page (admin dashboard), through which it can update the contents, customize them, monitor the results of the campaign (scans of the QR Code and click on the page), improve its performance and take advantage of the retargeting feature, to reach the target again through digital advertising campaigns on Facebook, Instagram, LinkedIn and Google Display Network.

Prodir Reseller Partners can propose their Customers the Cloud Pens Service with the following two service options:

  • "You design your page" (Customer Page designed by the Customer or the respective Reseller Partner, not by Pagani)
  • "We design your page" (Customer Page designed by Pagani's design team)

Introduction

1.1 These Terms

This document, together with the respective General Conditions of Purchase for the purchase of writing instruments and the Cloud Pens Privacy Policy, constitute a binding legal agreement between you, as Partner Reseller of Pagani and/or Customer, and Pagani which manages the Cloud Pen Service, and governs the purchase of the writing instruments and the use of the Cloud Pens Platform as described in these Terms.

The General Conditions of Purchase can be found through the following links:

The Cloud Pens Privacy Policy is available through the following link: here

1.2 Definitions

"Cloud Pens Platform" means the software made available to the Customer allowing the Customer (or the Reseller Partner or Pagani on behalf of the Customer, as the case may be) to manage its Customer Page;   

"Customer" means the customer receiving and using the Cloud Pens Service for their marketing and communication and who can choose whether to manage the Cloud Pens Platform independently or rely on the Reseller Partner or Pagani to manage the Cloud Pens Platform;

"Terms" means these Terms and Conditions for Cloud Pens by Prodir, which constitute a legally binding agreement between the Customer (and the Reseller Partner, where applicable) and Pagani;

"General Terms and Conditions of Purchase" the conditions for the purchase of the custom writing instrument product;

"Cloud Pens Service" means the service offered by Pagani comprising the customization of writing instruments with a QR code and the use of a "software as a service" solution, as described by these Terms;

"Customer Page" means the page customized by the Customer (or by the Reseller Partner or Pagani on behalf of the Customer, as the case may be) accessible via QR Code located on the pen, from which the Customer's target consumers can access the services chosen by the Customer.

"Reseller Partners" means reseller partners of Pagani, which resell the Cloud Pens Service of Pagani to Customers.

1.3 Changes to these Terms

Pagani reserves the right to make changes to these Terms at any time by giving notice through email or other contact channels.

The applicable Terms are those in force on the date of dispatch of the purchase order and we encourage the Customer (or Reseller Partner selling the Cloud Pen Service to the Customer) to consult the most up-to-date version of the Terms before submitting the purchase order.

Rights and Obligations of the Customer

2.1 Writing Instruments

Shipments and Deliveries

Shipments and deliveries will be agreed and indicated during the purchase procedure and indicated in the order confirmation emails or in the communications sent directly by the Reseller Partners to the final Customer.

For any special needs of the Customer, it is preferable to contact the Reseller Partner before proceeding with the order. The Reseller Partner will then contact Pagani directly or establish a contact between the Customer and Pagani.

Warranties

The warranties provided by law apply to the writing instruments sold. To exercise the right of warranty, the Customer must contact the respective Reseller Partner, within 10 days from the discovery of the defect and together with an accurate description of the defect found (including photos showing the defect).

2.2 Cloud Pens Platform

License Grant

Pagani grants the Customer a revocable, non-exclusive, non-transferable, limited right to use the Cloud Pens Platform strictly in accordance with the terms of this Terms and for the duration set forth in this Terms.

Restriction on Use

The Cloud Pens Platform shall be used in accordance with the provisions of these Terms. In particular, Customers may not:

  • apply the QR Code to any writing instrument other than Prodir writing instruments;
  • share, distribute, lend, lease, sublicense or otherwise make available, in any manner whatsoever, to any third party (excluding the respective Reseller Partner) the offered content;
  • decode, decompile, disassemble, modify or create derivative works based on the Cloud Pens Platform or any part thereof;
  • circumvent the computer systems used by the Cloud Pens Platform or its licensees to protect content accessible through it;
  • use any robot, spider, search service and/or site finder, or any other device, process or automated procedure to access, retrieve or index any part of the Cloud Pens Platform or its content;
  • defame, offend, harass, adopt threatening behaviour, threaten or otherwise violate the rights of others;
  • disseminate or publish illegal, obscene, illicit, defamatory or inappropriate content;
  • embezzle an account used by another user;
  • misuse the Cloud Pens Platform in any other way in violation of the Terms.

Intellectual Property Rights in and to Cloud Pens Platform

All title, ownership rights and intellectual property rights in and to the Cloud Pens Platform (including, without limitation, all text graphics, themes, characters, audio-visual effects, etc.) and any and all copies thereof are owned by Pagani and its licensors. The Cloud Pens Platform is protected by national and international laws, copyright treaties and conventions and other laws. The Cloud Pens Platform may contain certain licensed materials and, in that event, Pagani's licensors may protect their rights in the event of any violation of these Terms. Any reproduction or representation of these licensed materials in any way and for any reason is prohibited without Pagani's prior permission and, if applicable, Pagani's licensors' and representatives'. Except as expressly set forth in these Terms, all right not granted hereunder are expressly reserved by Pagani.   

Management and Security of Account

Upon creation of the account for use of the Cloud Pens Platform, Pagani will provide the Customer or Reseller Partner, where applicable, with the access credential and the link to reach to dashboard to create the Customer Page.

The Customer or the Reseller Partner managing the account on behalf of the Customer, where applicable, is invited, after the first access to the dashboard, to change the credentials provided for the first access. Afterwards, the Customer or the Reseller Partner managing the account on behalf of the Customer, where applicable, should change its login credentials every 3-6 months, respecting the best practices for safeguarding the credentials of access to online services. In case the Customer or the Reseller Partner managing the account on behalf of the Customer, where applicable, should lose access credentials or complain about unauthorized access, this must be promptly notified to Pagani.

For the avoidance of doubt, the Customer accepts and acknowledges that Pagani can never be held responsible for losses or abusive access that are the direct consequence of an action by the Customer or the Reseller Partner managing the account on behalf of the Customer, where applicable, who is solely responsible for maintenance and storage of the access credentials.

Maintenance and Support

In order to guarantee to Customers the optimal use of the Cloud Pens Platform, Pagani reserves the right to suspend the use of the Cloud Pens Platform for maintenance or updating of the system, informing Customer through continuous updates.

In case support is requirement, the Customer can request such support via the chat available on the website www.cloudpens.site or the email address at the bottom of the page: prodir@cloudpens.site. The customer service department reserves the right to reply to Users' requests within 2 working days in order to process and manage them correctly. Requests received during public holidays will be taken over on the next available working day.

Limited Warranty and Disclaimers

The Customer acknowledges and agrees that owing to the nature of the Cloud Pens Platform, Pagani does not represent or warrant that (i) access to the Cloud Pens Platform will be continuously available and (ii) the Cloud Pens Platform will be error free. The Cloud Pens Platform are provided on an "as is" basis without warranty of any kind, either express or implied.

License Fees and Payments

The fees for the use of the Cloud Pens Platform are reported within the purchase path and can be consulted at any time through the website www.prodir.com/cloudpens.

The fees are composed of an initial fee and subsequent periodic subscription fees, as follow:

Initial fee: the costs of licensing and maintenance of the Cloud Pens Platform for the first 6 months. The initial fee is paid at subscription for the Cloud Pens Platform.

Subscription fees: the costs of licensing and maintenance of the Cloud Pens Platform as of the 7th month of subscription. The subscription fees can be paid on a monthly basis or yearly basis, at the option of the Customer. The (monthly, respectively yearly) subscription fees indicated on the website at the time of order of the Cloud Pens Service will apply.

If not renewed by payment of the respective subscription fees, the plans, monthly and annual, will automatically expire at the end of the subscription. The Reseller Partner or the Customer will be informed, by automatic email sent by the system, of the expiry of their plan, which can be renewed directly by logging into the Customer account.

If the subscription, monthly or annual, is interrupted before its renewal, the same will end on the last day before automatic renewal, leaving the possibility to the Reseller Partner or Customer to use the service until its natural expiry.

The Cloud Pens Platform uses third-party payment processing tools and in this case does not manage or process in any way the payment data provided by the Customer or the Reseller Partner managing the account on behalf of the Customer, where applicable, such as credit card data. Any payment management costs not accepted by the payment platform, will be charged to the Customer.

All prices are indicated in Swiss Francs and Euro. Payments by bank transfer or direct debit are accepted on the Cloud Pens Platform. The buyer is responsible for all expenses related to money transfers. Payments with major credit cards are accepted.

The platform uses Six Payment Services (Saferpay) as a secure payment gateway, through which you can choose the main payment circuits. The conditions of use of the Six Payment Services are available at the following link.

Pagani reserves the right to charge 5% default interest per year on all past due invoices (to be calculated pro-rata, where applicable).

Termination

Pagani or its licensors may terminate these Terms with regard to the provision of the services related to the Cloud Pens Platform at any time without notice if you fail to comply with any terms and conditions of these Terms. Once terminated, you must stop using the Cloud Pens Platform and destroy any and all copies of the Cloud Pens Platform.

Data Protection

The Cloud Pens Service provides all the security and data processing guarantees required by Swiss and European regulations. By accepting these Terms, or using the Cloud Pens Platform, support or service subscription Customer agrees to the Cloud Pens Privacy Policy available: here.

The Customer acknowledges that Pagani is solely a data controller with regard to the Customer data (excluding end-user data) necessary to provide the Cloud Pens Service and to manage the contractual relationship.

As regards the data collected through the Customer Page, the Customer acknowledges and accepts that the Customer is the data controller and therefore has the obligation to inform end-users about the collection, processing and potential transfer of their data. The Customer agrees to comply with all applicable data protection laws (including, without limitation, GDPR) in this respect.

Where Pagani acts according to the Customer's instructions, Pagani acts as a data processor with regard to end-user data on the Cloud Pens Platform. Where Pagani acts according to the Reseller Partner's instructions (e.g. "you design your page" model managed by the Reseller Partner), Pagani will act as a data sub-processor with regard to end-user data on the Cloud Pens Platform.

Rights and Obligations of the Reseller Partner

3.1 Authorization

Pagani hereby authorizes the Reseller Partner to offer, market, distribute and promote the Cloud Pens Service to potential customers subject to the terms and conditions set out in these Terms.

3.2 Obligations of Reseller Partner

The Reseller Partner shall use its best efforts to offer market, distribute and promote the Cloud Pens Service to potential customers.

The Reseller Partner acknowledges that Reseller Partner and Customers can only use the Cloud Pens Service and Cloud Pens Platform if they accept the terms and conditions set out in these Terms and in the Cloud Pens Privacy Policy, and if applicable data protection law requires, the data processing agreements in place. The Reseller Partner shall not make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of the Cloud Pens Platform, which are inconsistent with those contained in these Terms.

The Reseller Partner agrees not to associate marketing materials with any content that is unlawful in any manner, or which is otherwise harmful, threatening, defamatory, obscene, offensive, harassing, violent, discriminatory, or otherwise objectionable in Pagani's sole discretion. The Reseller Partner agrees not to send unsolicited electronic messages to multiple unrelated recipients in order to promote the Cloud Pens Service, or otherwise engage in any other form of mass electronic communications prohibited by law in connection with activities contemplated under these Terms.

The Reseller Partner shall assist the Customers in managing the Cloud Pens Platform, where applicable. In no event shall the Reseller Partner host or provide the Cloud Pens Platform in its own and Reseller Partner shall always redirect Customers to the official place of distribution of the Cloud Pens Service, such as the respective official website.

The Reseller Partner shall not modify, adapt, develop, create any derivative work, reverse engineer, decompile, disassemble or carry out any act otherwise restricted by copyright or other intellectual property rights in connection with the Cloud Pens Service.

The Reseller Partner understands and acknowledges that Pagani may at any time amend the terms and conditions applicable to the Cloud Pens Service, in particular these Terms and the Privacy Policy, without prior notice to the Reseller Partner.

3.2 Data Protection

Pagani and Reseller Partner acknowledge that, in respect to personal data of Customer processed in connection with these Terms, they are considered independent controllers, and each agree that they will comply with their respective obligations under applicable data protection law.

The Reseller Partner shall not share any personal data of its customers with Pagani, unless it has all necessary and appropriate consents and notices in place to enable lawful transfer of personal data to Pagani. The Reseller Partner and Pagani will ensure that they have appropriate technical and organizational security measures in place to protect personal data transferred between them. Where necessary under applicable data protection law, they will enter into appropriate contractual agreements with regard to the processing of personal data.

3.2 Use of Trademarks

Pagani grants Reseller Partner a non-exclusive, revocable license (subject to the terms and conditions of these Terms and during its term and solely for the purposes of performing the Reseller Partner's obligations under these Terms) to use the trademarks of Pagani for the purposes of offering, marketing, distributing, and promoting the Pagani Cloud Pens Service.

The Reseller Partner shall ensure that each reference to, and use of, any of the trademarks of Pagani by the Reseller Partner is in a manner approved from time to time by Pagani.

3.3 Termination of Reseller Partner Relationship

Pagani may terminate these Terms with regard to the rights and obligations of the Reseller Partner at any time by giving 30 days prior written notice to the Reseller Partner or immediately in case of a material breach of the obligations of the Reseller under these Terms.

Common Provisions

4.1 Limitations of Liability

Indemnification

Customer and Reseller Partner undertake to indemnify and hold harmless Pagani and its subjects, affiliates, officials, agents, joint proprietors of the trademark and employees from any claim or claim - including, without limitation, legal fees and charges - incurred by third parties as a result of or in connection with negligent conduct such as use or connection to the service, violation of these Terms, violation of third-party rights or laws by the Customer or Reseller Partner, their respective affiliates, officials, agents, and employees, as far as applicable.

Limitation of liability of Pagani

Unless otherwise specified and without prejudice to the applicable legal provisions on product liability, any claim for compensation against Pagani (or any natural or legal person acting on its behalf) is excluded.

Pagani cannot, in any way, be responsible for the incorrect use of the Cloud Pens Service or for the failure and/or malfunction of the material owned by the Customer and/or Reseller Partner. Pagani does not provide any type of warranty, expressed or implied, of merchantability, compatibility, or fitness for a particular purpose of the Customer or third parties and also does not guarantee that the service corresponds to the requirements and needs of the Customer.

Unless the damage was caused by intent or gross negligence or affect the life and/or personal, physical or mental integrity, Pagani shall be liable only to the extent of the damage typical for the type of contract and foreseeable at the time of conclusion.

In particular, within the limits set out above, Pagani assumes no liability with regard to:

  • any lost gains or other losses, even indirect, that the Customer (or the Reseller Partner managing the account on behalf of the Customer, where applicable) may have suffered (such as, but not limited to, commercial losses, loss of revenue, anticipated profits or savings, loss of contractual or commercial relationships, loss of goodwill or damage to reputation, etc.);
  • damage or loss resulting from interruptions or malfunctions of the Cloud Pens Service due to force majeure or unforeseen and unforeseeable events and, in any case, independent of the will and outside the control of Pagani, such as, by way of example, failure or interruption of telephone or power lines, Internet connection and/or other means of transmission, inaccessibility of websites, strikes, natural disasters, computer viruses and attacks, interruptions in the supply of third-party products, services or applications;
  • any loss that is not a direct consequence of a breach of these Terms by Pagani;
  • damage, prejudice, or loss due to viruses or other malware contained in or connected to files that can be downloaded from the Internet or through the Cloud Pens Platform. Customers (or the Reseller Partner managing the account on behalf of the Customer, where applicable) are responsible for taking appropriate security measures - such as antivirus - and firewalls to prevent any infections or attacks and to protect backup copies of all data and/or information exchanged/and or uploaded/and on the Cloud Pens Platform.

In case of liability of Pagani, the compensation due may not exceed the total amount of payments that have been, will be or may be contractually due to Pagani by the Customer (or the Reseller Partner managing the account on behalf of the Customer, where applicable) for a period of 12 months or for the entire duration of the subscription to the Cloud Pens Service, if shorter.

4.2 Assignment of the commercial relationship

Pagani reserves the right to transfer, assign, dispose of by way of novation, or subcontract all or some of the rights or obligations provided for in these Terms.

The Customer and/or the Reseller Partner may not assign or transfer in any way his rights or obligations under these Terms without the written approval of the Owner.

4.4 Communications

All communications relating to the Cloud Pens Service will be transmitted using the contact details indicated in these Terms.

4.5 Invalidity and partial invalidity

If a single provision or several provisions of these Terms is/are or become(s) invalid or unenforceable, this shall not affect the validity and enforceability of the other provisions. In this case, the parties shall replace the invalid, void, or unenforceable provision with a valid and enforceable alternative provision. The same shall apply, by analogy, in cases where these Terms contain legal deficiencies.

4.6 Applicable law and jurisdiction

These Terms and all disputes relating to the execution, interpretation and validity of this Terms are subject to the laws of Switzerland (excluding the UN-Convention on Contracts for the International Sale of Goods) and to the exclusive jurisdiction of the court of Lugano, Switzerland.