Cloud Portal – Terms and Conditions

1 Definitions

The following capitalized terms will have the following meanings whenever used in this Agreement

1.1 Customer

Means either the ‘end user’ of Alleantia products or the third party integrating/configuring the Alleantia products on behalf of an end user.

1.2 Customer Data

Means data in electronic form input or collected through the System by or from Customer, including without limitation by Users Data.

1.3 XPANGO Driver

Means the software interfaces to implement access and data exchange of the Alleantia Products to the relevant industrial machines and devices, uploaded on the System and free to download for the Customers through the Library of Things, or stored privately by each Customer in its own XPANGO Drivers Private Library.

1.4 Documentation

Means Alleantia’s standard manuals related to use of the System and all Alleantia Products and Software.

1.5 Library of Things

Means the XPANGO Driver’s Library which collects the Drivers uploaded by Alleantia and by the Customers, freely downloadable by all users.

1.6 Privacy Policy

Means Alleantia’s privacy policy, currently reachable at https://www.iubenda.com/privacy-policy/460433.

1.7 Services

Means the SDK, the Drivers, the Library and the System.

1.8 System

Means Alleantia’s Cloud Portal platform, currently located at https://www.alleantia.com.

1.9 User

Means any individual who uses the System on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.

1.10 XPANGO Private Drivers Library

Means the private library of XPANGO Drivers which any Customer could use for the storage of Drivers created by its own.

2 The System

2.1 Use of the System

Alleantia agrees to provide the following services through its System in favor of Customers under the terms and conditions set out in the Agreement:
(a) Software Development Kit (SDK): a set of software development tools and applications, provided to Customers in order to create and manage the XPANGO Drivers, to be used to enable interfacing Alleantia Products with relevant industrial machines and equipment;
(b) XPANGO Drivers Public Library (‘Library of Things’): the library which contains all XPANGO Drivers already created for the Alleantia Products ready to be downloaded, installed and used by Customers at their premises to connect various types of industrial machines and devices to Alleantia Products and provide information on such industrial devices and machines;
(c) Repository service (‘XPANGO Private Drivers Library’) provided by Alleantia, that the Customers will use to store and distribute the drivers they created;
(d) Software management tools that will include a series of functions to support Customers in easy management of Alleantia products and the Customer implementation. Features will include, but not limited to, backup and restore, license management, software updates, and other features that Alleantia will decide to provide to its Customers, either for free or as paid service.

2.2 Documentation

Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the System and will have no right to use it for any other reason or in any other way.

2.3 System Revisions

Alleantia may revise System features at any time, including without limitation by removing such features and functions or reducing service levels.

3 Customer Data Privacy

3.1 Use of customer Data

Alleantia will access, use, store, and transfer Customer Data to (i) deliver the Services, (ii) to fulfill Alleantia’s obligations in the Agreement, (iii) check the use of the Services in order to improve or extend their use and (iv) suggest the use of new features to the Customers. Any Alleantia personnel who have access to Customer Data will be bound by appropriate confidentiality obligations. Unless it receives Customer’s prior written consent, Alleantia: (a) shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the System; and (b) shall not grant to any third party access to Customer Data, including without limitation Alleantia’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement and only for the purpose of allowing their supply of products or services to Alleantia. Notwithstanding the foregoing, Alleantia may disclose Customer Data as required by applicable law or following a binding legal request issued by any relevant authority. Alleantia shall give Customer prompt notice of any such demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense. As between the parties, Customer retains ownership of Customer Data. Customers by uploading data on the Systems grant an unlimited, worldwide, free license to Alleantia to use such data.

3.2 Publicationc of XPANGO Drivers

The Customer who has created an XPANGO Drivers through the SDK is entitled to use the XPANGO Driver only for its private use, without selling, leasing or giving the same to any third party. Customers could use the XPANGO Drivers Private Library to store the drivers created. The customer can ask Alleantia to make the driver public. If Alleantia decides to accept the Customer’s request for publication, Customer and Alleantia shall enter into a new contract relating to the publication of the Driver. In no case shall the Customer be compensated for the publication of the Driver by Alleantia.

The Customer who has created an XPANGO Drivers through the SDK is entitled to use the XPANGO Driver only for its private use, without selling, leasing or giving the same to any third party. Customers could use the XPANGO Drivers Private Library to store the drivers created. The customer can ask Alleantia to make the driver public. If Alleantia decides to accept the Customer’s request for publication, Customer and Alleantia shall enter into a new contract relating to the publication of the Driver. In no case shall the Customer be compensated for the publication of the Driver by Alleantia.

3.3 Privacy Policy

The Privacy Policy applies only to the System and does not apply to any third party website or service linked to the System or recommended or referred to through the System or by Alleantia’s

3.4 Risk of Exposure

Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Customer assumes such risks. Alleantia offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.

3.5 Data Accuracy

Alleantia will have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including without limitation Customer Data and any other data uploaded by Users.

3.6 Data Deletion

Alleantia may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more

3.7 Aggregate e Anonymized Data

Notwithstanding the provisions above of this Article, Alleantia may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. (“Aggregate Data” refers to Customer Data with the following permanently removed: personally identifiable information and the names and addresses of Customer and any of its Users or customers.)

4 Customer’s Responsbilities e Restrictions

4.1 Acceptable Use

Customer shall not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System; (b) provide System passwords or other log-in information to any third party; (c) share non-public System features or content with any third party; (d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System; or (e) engage in web scraping or data scraping on or related to the System, including without limitation collection of information through any software that simulates human activity or any bot or automated web crawler. In the event that it suspects any breach of the requirements of this Section 4.1, including without limitation by Users, Alleantia may suspend Customer’s access to the System without advanced notice, in addition to such other remedies as Alleantia may have. Nothing in this Agreement requires that Alleantia takes any action against Customer or any User or other third party for violating this Section 4.1 or this Agreement, but Alleantia is free to take any such action it sees fit.

4.2 Unauthorized Access

Customer shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Customer shall notify Alleantia immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said breach. Alleantia is free to take all appropriate actions to prevent or stop any unauthorized access to the System, with no right t any indemnity or reimbursement in favor of the Customer, and reserves the right to take all available legal action including against the Customer.

4.3 Compliance with Laws

In its use of the System, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data, and shall apply the most advances state of art technical and policy solution to prevent abuse, improper use, cyber-attacks, introduction of malware or any other unauthorized access and use of the System.

4.4 Users & System Access

Customer is responsible and liable for: (a) Users’ use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of this Agreement applicable to Customer; and (b) any use of the System through Customer’s account, whether authorized or unauthorized. Customer will promptly notify Alleantia of any unauthorized use of or access to the System.

4.5 Restrictions

Customer will not: (a) sell, resell, or lease the XPANGO Drivers and/or the SDK and/or the access to the System; (b) use the Services for activities where use or failure of the Services could lead to physical damage, death, or personal injury; (c) reverse engineer the XPANGO Drivers and/or the System, or attempt or assist anyone else to do so, unless and to the extent this restriction is prohibited by law; (d) use the Services, including the export or re-export of Customer Data, in violation of all applicable Export Control Laws; or (e) violate or circumvent any Service Limits of the Services or otherwise configure the Services to avoid Service Limits.

5 Suspension

5.1 Of End User Accounts by Alleantia

If an End User: (a) violates the Agreement; or (b) uses the Services in a manner that Alleantia reasonably believes will cause it liability, then Alleantia may request that Customer suspend or terminate the applicable End User account. If Customer fails to promptly suspend or terminate the End User account, then Alleantia may do so and Customs will have no right to reimbursement or damages.

5.2 Security Emergencies

Notwithstanding anything in the Agreement, if there is a Security Emergency, Alleantia may automatically suspend use of the Services. Alleantia will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency.

6 Ip e Feedback

6.1 License and IP Rights to the System

Alleantia retains all rights, title, and interest in and to any of the Services, the System, the Library and any XPANGO Driver created by Alleantia, including without limitation all copyright on software and all rights on graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement as well any use of the System does not grant Customer any intellectual property license or rights in or to the System or any of its components except to the limited extent to use the System. Customer recognizes that the System and its components are protected by copyright and other applicable intellectual property rights. Alleantia grants to Customer, for the duration and in execution of the Services, a non-exclusive license to reproduce and use XPANGO Drivers created by Alleantia, solely for Customer’s business purposes directly associated with the use of Alleantia licensed products.

6.2 Feedback

Alleantia has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Alleantia, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Alleantia’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Notwithstanding the provisions of Article 7 below, Feedback will not be considered Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Alleantia’s products or services.)

6.3 Drivers ownership

The XPANGO Drivers created by the Customers through the SDK, remains in the ownership of the same, as well as all of its ownership, right, title, and interest in and to all XPANGO Drivers, which however could be used only in conjunction with a valid Alleantia Software license. With the request of publication of the XPANGO Drivers created by the Customers through the SDK onto the Library of Things, the Customer grants to Alleantia, for the duration and in execution of the Services, a free, non-exclusive, not limited license to sub-license, allow access, modify, reproduce and use the XPANGO Drivers.

7 Confidential Information

7.1 Confidential Information

Refers to the following items Alleantia discloses to Customer: (a) any document Alleantia marks “Confidential”; (b) any information Alleantia orally designates as “Confidential” at the time of disclosure; and (c) any other nonpublic, sensitive information Customer should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Customer. Customer is on notice that the Confidential Information may include Alleantia’s valuable trade secrets.

7.2 Nondisclosure

Customer: (a) shall not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate its activity and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Article 7; and (b) shall not disclose Confidential Information to any other third party without Alleantia’s prior written consent. Without limiting the generality of the foregoing, Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify Alleantia of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give Alleantia prompt notice of any such legal or governmental demand and reasonably cooperate with Alleantia in any effort to seek a protective order or otherwise to contest such required disclosure, at Alleantia’s expense.

7.3 Injunction

Customer agrees that breach of this Article 7 would cause Alleantia irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Alleantia will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

7.4 Termination & Return

With respect to each item of Confidential Information, the obligations of Section 7.1 above (Nondisclosure) will terminate 5 (five) years after the date of disclosure; provided that such obligations related to Confidential Information constituting Alleantia’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Customer shall return all copies of Confidential Information to Alleantia or certify, in writing, the destruction thereof.

7.5 Retention of Rights

This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Alleantia will retain all right, title, and interest in and to all Confidential Information.

8 Representations e Warranties

8.1 From Alleantia

Alleantia represents and warrants that it is the owner of the System, of the Library, of the SDK, of the XPANGO Drivers and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights to use the System set forth in this Agreement without the further consent of any third party. Alleantia’s representations and warranties in the preceding sentence do not apply to use of the System in combination with hardware or software not provided by Alleantia. In the event of a breach of the warranty in this Section 8.1, Alleantia, at its choice and at its own expense, shall promptly take the following actions: (a) secure for Customer the right to continue using the System; (b) replace or modify the System to make it noninfringing; or (c) terminate the infringing features of the Service. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Alleantia’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 8.1 and for potential or actual intellectual property infringement by the System.

8.2 From Customer

Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (c) has no intention of using the System or related elements for activities contrary to the law.

8.3 Warranty Disclaimers

Except to the extent set forth in Section 8.1 above, Customer accepts the System, the XPANGO Drivers, the SDK and the Library “AS IS” and as available, with no representation or warranty of any kind, express or implied, including without limitation implied warranties of merchantability, fitness for a particular purpose, or non-infringement of intellectual property rights, or any implied warranty arising from statute, course of dealing, course of performance, or usage of trade. Without limiting the generality of the foregoing: (a) Alleantia has no obligation to indemnify or defend customer or users against claims related to infringement of intellectual property; (b) Alleantia does not represent or warrant that the System will perform without interruption or error; and (c) Alleantia does not represent or warrant that the System and the XPANGO Drivers and all of its components are secure from hacking or any kind of cyber-attack or cyber incident or unauthorized intrusion, or that Customer data will remain private or secure in case of hacking. Customers shall have to implement and use their own cyber security systems and procedures and cannot rely on any element of the System to provide protection or be error or attack free or assume that it could not be exploited for such unauthorized use by third parties.

8.4 For the avoidance of any doubt

It is Customer’s responsibility: (i) in case of use of XPANGO Drivers created by Alleantia, identify, download, install and correctly use the right XPANGO Driver for any industrial machine, and (ii) in case of XPANGO Drivers created by the Customer, to create, develop and test the XPANGO drivers fully aware that an incorrect use of such Drivers (e.g. incorrect entries on variables, incorrect reading of data) can cause material damage to the industrial machine on which the XPANGO Driver will be used. Customer expressly recognize and accept that Alleantia is not responsible in any way for any incorrect use of the XPANGO Drivers, and will not have any obligation related to the review and/or analysis of any sort of the XPANGO Drivers after that they have been uploaded in the System.

9 Indemnification

9.1 Indemnification

Customer shall defend, indemnify, and hold harmless Alleantia and its Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the Services, including without limitation: (a) claims by Users or by Customer’s employees, as well as by Customer’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Customer’s account, including without limitation by Customer Data; and (d) claims that use of the Services through Customer’s account harasses, defames, or defrauds a third party. Indemnified Claims include, without limitation, claims arising out of or related to Alleantia’s negligence. Customer’s obligations set forth in this Article 8 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Alleantia will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Alleantia Associates” are Alleantia’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns).

9.2 Possible Infringement

If Alleantia believes that the XPANGO Drivers uploaded by Customers or any other Service infringe or may be alleged to infringe a third party’s Intellectual Property Rights, then Alleantia may, at its sole discretion: (a) provide a non-infringing functionally equivalent replacement; or (b) modify the XPANGO Driver and/or the Service so that they no longer infringe; or (c) remove the XPANGO Driver from the Library and make it no longer accessible. If Alleantia does not believe the options described in this section are commercially reasonable, then Alleantia may suspend or terminate Customer’s use of the affected XPANGO Drivers or Services.

9.3 Only Remedy

The indemnities above are Alleantia and Customer’s only remedy under the Agreement for violation by the other party of a third party’s intellectual property rights.

10 Limitation of Liability

10.1 Liabilty Cap

To the fullest extent permitted by applicable law, and without prejudice to article 1229 of the Italian civil code, Alleantia’s total liability under the agreement will not exceed the lesser of €5.000,00 (euro five thousands) or 10% of the amount paid by customer to Alleantia for the purchase of its products hereunder during the 6 (six) months prior to the event giving rise to liability.

10.2 Excluded Damages

To the fullest extent permitted by law, except for Alleantia or Customer’s indemnification obligations, neither Customer nor Alleantia and its Associates will be liable under the Agreement for any indirect damages (“lucro cessante”) including but not limited to loss of profits or revenue, loss of commercial opportunities, loss of data, exploitation of vulnerabilities or other similar damage, even if the party knew or should have known that such damages were possible and even if a remedy fails of its essential purpose.

11 Term e Termination

11.1 Term

This Agreement will continue until terminated by either Party as specifically authorized herein.

11.2 Termination for Cause

Either Party may terminate the Agreement, if: (i) the other Party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice; or (ii) the other Party ceases its business operations or becomes subject to insolvency proceedings. Alleantia may also terminate this Agreement and suspend Customer’s access to the Services if required to do so by law or for an egregious violation by Customer of the Acceptable Use Policy.

11.3 Effects of Termination

Upon termination of this Agreement, Customer shall cease all use of the System and delete, destroy, or return all copies of the Documentation and/or Confidential Information in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) Articles and Sections 5.1 (IP & Feedback), 7 (Confidential Information), 8.3 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (b) any other provision of this Agreement that must survive to fulfill its essential purpose.

12 Miscellaneous

12.1 Independent Contractors

The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.

12.2 Notices

Alleantia may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer. Customer may send notices pursuant to this Agreement to sales@alleantia.com.

12.3 Force Majeure

No delay, failure, or default will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, pandemic, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.

12.4 Severability

To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

12.5 No Waiver

Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

12.6 Choice of Law & Jurisdiction

This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the State of Italy. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Milan, Italy. This Section 12.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.

12.7 Conflicts

In the event of any conflict between this Agreement and any Alleantia policy posted online, including without limitation the AUP or Privacy Policy, the terms of this Agreement will govern.

12.8 Construction

The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.

12.9 Entire Agreement

This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.

12.10 Amendment

Alleantia may amend this Agreement from time to time by posting an amended version at its Website and sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives Alleantia written notice of rejection of the amendment.