Software Terms and Conditions

1 Definitions

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

1.1 Alleantia Price List

Is provided in the “Pricing” Section of Alleantia Web Site or at any other place subsequently communicated by Alleantia.

1.2 Alleantia Web Site

Is the Company’s Web Site to be found at https://www.alleantia.com

1.3 Authorized Distributor

Means a Distributor with an active Distribution Contract for its Product

1.4 Authorized Reseller

Means a Company (e.g. ISV, Integrator) with an active Resale Contract for the Product.

1.5 Documentation

Means the Software’s standard user manual and API programming manuals, to be found in the “Technical Documentation” section of Alleantia Web Site.

1.6 Feedback

Refers to any suggestion or idea for modifying any of Alleantia’s products or services, including without limitation all intellectual property rights in any such suggestion or idea.

1.7 Maintenance Services

Is defined in Subsection 3.1 below.

1.8 Product

Means the products sold by the Alleantia.

1.9 Specifications

Means Alleantia’s standard specifications for the Software set forth in its then-current Documentation and at Technical Documentation Section of Alleantia Web Site.

1.10 Software

Means Alleantia’s “ISC” and “Site Manager” software and any other associated software module and component provided by Alleantia, in object code format.

1.11 Term

Is defined in section 10.1 below

1.12 Upgrade

Means a new versions, updates, or upgrades of the Software, in object code format.

2 Licenses e Delivery

2.1 License

Alleantia hereby grants End User a limited, non-exclusive, nontransferable, non-sub-licensable license to use the Software only in connection with the Products, only for the purposes described in the user manual of the Products, and provided End User complies with the restrictions set forth in Section 2.2 below.

2.2 Restrictions on Software Rights

Copies of the Software created or transferred pursuant to this Agreement are licensed, not sold, and End User receives no title to or ownership of any copy or of the Software itself. Furthermore, End User receives no rights to the Software other than those specifically granted in Section 2.1 above. Without limiting the generality of the foregoing, End User shall not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Software; (b) use the Software to allow third parties to exploit the Software; or (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Software’s source code.

2.3 Documentation

End User may reproduce the Documentation as reasonably necessary to support internal use of the Software.

3 Maintenance Services

3.1 Provision of Maintenance

During each Maintenance Term, Alleantia shall maintain the Software according to its Maintenance Plan, as further described in the Technical Documentation section fo Alleantia Web Site. “Maintenance Term” refers to the 1 year period following the purchase of the Software Maintenance Services. The Maintenance Term shall renew for a period of the same duration provided the End User pays – directly or indirectly – to Alleantia the Maintenance Service fees associated to the Product.

3.2 Upgrades

During each Maintenance Term, Alleantia shall make available to End User access to the Upgrades, without additional charge, promptly after commercial release. Upon delivery to End User, each Upgrade will constitute an element of the Software and will thereafter be subject to this Agreement’s terms regarding Software, including without limitation license, warranty, and indemnity terms. Upgrades installation is End User’s responsibility. Upgrades may be ineffective or impossible to install if the Maintenance Service is not active for the specific Product.

4 Fees e Reimbursement

4.1 Fees

End User shall pay Alleantia, directly or indirectly, as follows:

• License Fees. For the licenses granted in Section 1 above, the due fees (“License Fees”) are defined in Alleantia Price List (initial or renewal, as set forth below in Section 10.1 below), less discounts agreed by Alleantia or Authorized Distributor / Reseller / VAR; and
• Maintenance Fees. For Maintenance (as defined in Section 3.1), the fees specified in the Alleantia Price List (“Maintenance Fees”) per Maintenance Term, less discounts agreed by Alleantia or Authorized Distributor / Reseller / VAR.

5 IP e Feedback

5.1 IP Rights in the Software

Alleantia retains all right, title, and interest in and to the Documentation and Software, including without limitation Upgrades, except to the extent of the limited licenses specifically set forth in articles 2.1 (Licenses) and 2.3 (Documentation). End User recognizes that the Software and its components are protected by copyright and other laws.

5.2 Feedback

End User hereby grants Alleantia a perpetual, irrevocable, worldwide license to use any Feedback (as defined below) End User communicates to Alleantia during the Term, without compensation, without any obligation to report on such use, and without any other restriction. Alleantia’s rights granted in the previous sentence include, without limitation, the right to exploit Feedback in any and every way, as well as the right to grant sublicenses. Notwithstanding the provisions of Article 6 (Confidential Information) below, Feedback will not be considered End User’s Confidential Information.

6 Confidential information

6.1 Confidential Information Defined

“Confidential Information” refers to the following one party to this Agreement (“Discloser”) discloses to the other (“Recipient”): (a) any document Discloser marks “Confidential”; (b) any information Discloser orally designates as “Confidential” at the time of disclosure, provided Discloser confirms such designation in writing within 30 business days; (c) the non-public features and functions of the Software, for which Alleantia is Discloser; and (d) any other nonpublic, sensitive information Recipient should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient’s possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (iv) is approved for release in writing by Discloser. Recipient is on notice that the Confidential Information may include Discloser’s valuable

6.2 Nondisclosure

Recipient shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement (the “Purpose”). Recipient: (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Recipient with terms no less restrictive than those of this Article 6; and (b) shall not disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient 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. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense.

6.3 Retention of Rights

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

7 Representations e Warranties

7.1 From Alleantia

• Re Function. Alleantia represents and warrants that, during the one year period following delivery, the Software will perform substantially as described in its Specifications, provided that it is installed in hardware or operating system certified by Alleantia or aligned with the technical specification set forth in the Specifications. The Parties expressly acknowledge that the Software will perform properly only if the technical specifications setting out the requirements for the Software are properly met by End User.
• Re IP Rights in the Software. Subject to the next sentence, Alleantia represents and warrants that it is the owner of the Software 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 intellectual property rights to the Software 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 the extent that the infringement arises out of any of the conditions listed in Subsections 1(a) through 8.1(e) below. In the event of a breach of the warranty in this Subsection 7.1(b), Alleantia, at its own expense, will promptly take the following actions: (i) secure for End User the right to continue using the Software; (ii) replace or modify the Software to make it noninfringing, provided such modification or replacement will not materially degrade any functionality listed in the Specifications. In conjunction with End User’s right to terminate for breach where applicable and the provisions of Section 8.1 below (Indemnified Claims), the preceding sentence states Alleantia’s sole obligation and liability, and End User’s sole remedy, for breach of the warranty in this Subsection 7.1(b) and for potential or actual intellectual property infringement by the Software.

7.2 From Both Parties

Each party represents and warrants that 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.

7.3 Warranty Disclaimers

Except for the express warranties in Sections 1 and 7.2 above, Alleantia makes no warranties, either express or implied, including without limitation any implied warranty of merchantability or fitness for a particular purpose. Alleantia does not warrant that the Software will perform without error or that it will run without immaterial interruption. Alleantia provides no warranty regarding, and will have no responsibility for, any claim arising out of: (a) a modification of the Software made by anyone other than Alleantia, unless Alleantia approves such modification in writing; or (b) use of the Software in combination with any operating system not authorized in the Specifications or Documentation or with hardware or software specifically forbidden by the Specifications or Documentation.

8 Indemnification

8.1 Indemnified Claims

Indemnified Claims. Alleantia shall defend and indemnify End User and End User’s Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of, related to, or alleging direct infringement of any patent, copyright, trade secret, or other intellectual property right by the Software. Alleantia’s obligations set forth in this Section 8.1 do not apply to the extent that an Indemnified Claim arises out of: (a) End User’s breach of this Agreement; (b) revisions to the Software made without Alleantia’s written consent; (c) End User’s failure to incorporate Upgrades that would have avoided the alleged infringement, provided Alleantia offered such Upgrades without charges not otherwise required pursuant to this Agreement; (d) Alleantia’s modification of Software in compliance with specifications provided by End User; or (e) use of the Software in combination with hardware or software not provided by Alleantia. In the event of an Indemnified Claim, Alleantia may exercise the remedies in Subsections 7.1(b)(i) through 7.1(b)(iii) above, including without limitation its right therein to terminate licenses and require return of the Software. (As used in this Article 8, End User’s “Associates” are its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)

8.2 Litigation e Additional Terms

Alleantia’s obligations pursuant to Section 1 above will be excused to the extent that End User’s or any of End User’s Associates’ failure to provide prompt notice of the Indemnified Claim or reasonably to cooperate materially prejudices the defense. Alleantia will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided End User 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.

9 Limitation of Liability

9.1 Liability 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 End User to Alleantia for the Software during the 6 (six) months prior to the event giving rise to liability. In the event that Alleantia provides the End User with a free NFR license or demo of the Software, this clause shall not be valid and Alleantia’s liability towards the End User shall be excluded as the Software will be provided as is with no express or implied warranty of any kind.

9.2 Excluded Damages

to the fullest extent permitted by law, except for Alleantia or End User’s indemnification obligations, neither End User 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.

10 Term e Termination

10.1 Term

This Agreement will remain in effect from the Effective Date for the period expressly specified in the relevant Product order form, or in a specific document attached to this Agreement (the “Term”). Thereafter, the Term will renew for successive one year periods, unless either party refuses such renewal by written notice 30 or more days before the end of the current Term.

10.2 Termination for Cause

This Agreement will remain in effect from the Effective Date for the period expressly specified in the relevant Product order form, or in a specific document attached to this Agreement (the “Term”). Thereafter, the Term will renew for successive one year periods, unless either party refuses such renewal by written notice 30 or more days before the end of the current Term.

10.3 Effect of Temination

Upon termination of this Agreement, End User shall cease all use of the Software and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of End User to pay fees incurred before termination; (b) Articles and Sections 2 (Restrictions on Software Rights) 5 (IP & Feedback), 6 (Confidential Information), (Software Audit), 7.2 (Warranty Disclaimers), 8 (Indemnification), and 9 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.

11 Miscellaneous

11.1 Indipendent Contractors

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

11.2 Notices

Alleantia may send notices pursuant to this Agreement to End User’s email contact points provided by End User. End User may send notices pursuant to this Agreement to amministrazione@alleantia.com.

11.3 Force Majeure

No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, epidemics, 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.

Pursuant to this clause 11.3, Alleantia will not be liable in the event that any future Laws are enacted or are otherwise provided by the Authorities limitations on the export of licenses or Software covered by the Agreement or whether is otherwise inhibited the use by End Customers.
Whether due to events related to the Covid-19 pandemic, the ongoing war initiated between Russia and Ukraine, to rising of oil prices, to the Swift circuit payment blockage imposed for payments towards and from Russia or to an increase in the cost of raw materials, the balancing of the parties’ obligations under the Agreement falls out of balance in favor of one party, the parties agree to renegotiate the contractual terms and provisions in good faith in order to restore the contractual balance.

Whether the parties fail to reach an agreement following such negotiation, they may proceed as set out in section 11.7 “Choice of Law & Jurisdiction”.

11.4 Assignment e Successors

End User may not assign this Agreement or any of its rights or obligations hereunder without Alleantia’s express written consent. Except to the extent forbidden in this Section 4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

11.5 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.

11.6 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.

11.7 Choice of Law e jurisdiction

This Agreement will be governed solely by the laws of Italy. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Milan, Italy.

11.8 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.

11.9 Execution in Counterparts

This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.

11.10 Amendment

This Agreement may not be amended except through a written agreement by authorized representatives of each party.