These license terms represent the agreement between Cegeka SpA (also Cegeka) and the licensee.
By installing or using the software, the licensee accepts these terms and he will receive the rights described as follow for every software license purchased or subscribed. If the licensee does not accept the terms, he could not install, make others install, or use the software.
1. LICENSE MODEL
The software, is not sold, is licensed to the licensee by one of this way:
- perpetual licensing (s.c. “perpetual license”) with separated software maintenance subscription;
- subscription (s.c “subscription license”).
The software and the related documentation are owned by Cegeka.
The use of any release, revision, improvement, customization as well as any technological upgrade of the software are governed by the contract and general terms and condition stipulated between the parts.
The contract gives the licensee the rights as specified under 2.2), while Cegeka reserves all the other rights, to the maximum extent permitted by applicable law. Licensee can use software only in the way described in the contract.
In case of subscription license of the software solution, Cegeka may suspend the use of the subscription if the licensee infringes the use criteria, stops the payments or does not respond to a claim concerning an alleged violation. When it deems it reasonable, Cegeka will inform the licensee about its intention to suspend the subscription.
2.2 Licensee rights
All rights granted to the licensee under this agreement are not exclusive and are not transferable and apply only on condition that neither the licensee nor any of its subsidiaries is seriously in breach of this contract.
By accepting these terms, the licensee is entitled to:
- install the software solution in one place, server, web site or in other storage tool.
- make the software available and accessible to its users within the limits and the quantities defined with Cegeka;
- create a backup of the software solution;
- create instances of passive fail-over of the system database on a temporary basis;
- in case of software solutions granted in perpetual license, on payment of the maintenance fee, receive updates of the solutions;
- In case of subscription license of the software solution, receive updates of the solutions during the period of validity of the subscription
2.3 Licensee bans
Unless agreed in writing and authorized by Cegeka, the licensee is explicitly prohibited from:
- selling or transferring the license to third parties;
- renting, leasing or loaning the software, or using the software to provide hosting to third parties;
- distributing (totally or partially) any component of the Cegeka software solution;
- creating derivatives of the Cegeka software solutions;
- decoding, decompiling or disassembling the Cegeka software solutions;
- publishing the software for duplication by others;
- redistributing software copies which are incomplete, modified, reverse engineered or altered;
- using the software (totally or partially) in ways not covered by this agreement.
In case of violation of one of the aforementioned prohibitions, the contract will be automatically terminated with forfeiture of the right of use.
3. LIMITATION OF LIABILITY AND DAMAGE EXCLUSION
The licensee relieves Cegeka of any responsibility for problems arising from modifications made by the licensee, a partner or third parties acting on behalf of the licensee, or for any problems caused by the hardware or software of third parties.
Cegeka is not obliged to provide technical or other support for changes made by the licensee, a partner or third parties.
Cegeka does not formulate any declaration, approval, guarantee or assurance regarding the suitability of the software for the licensee's activity.
The Parties agree that Cegeka shall have no liability whatsoever in respect of any direct or indirect damage suffered as consequence of the functioning of the concerned software.
Cegeka shall not be required to carry out any intervention when a new version of the same software had been officially released and the Licensee failed to install it.
Except in case of willful misconduct or gross negligence, Cegeka shall not be liable for any consequential damage (including any consequential or direct loss of profit (“lucro cessante”)) or other damages indirectly arising from the supply of any goods or services under this Agreement.
In any event, the Parties hereby acknowledge and agree that the maximum amount of damages which may be recovered under whatsoever title (contractually or otherwise) shall be equal to 30% of the consideration paid by the Client in accordance with this agreement.
Cegeka shall not be liable in respect of any delay in the performance of the services due to force majeure events, or to any breaches and delays by the Licensee.
4. SUSPENSION OF THE AGREEMENT
In case of late payments by the Client, with a delay in excess of 15 (fifteen) days following the agreed due date, the administrative department of CEGEKA shall send a written request of payment via certified mail. Failing the payment of the full amount due in the following 15 (fifteen) days, the administrative department of CEGEKA shall be entitled – with no need of further notice – to autonomously perform the recovery of its credit, thus releasing CEGEKA's sales department and its Officer in charge from the collection procedure, which will be dealt by CEGEKA in accordance with its Group policies, requiring the suspension of the services in case of continued delays in payments.
In such event, the consequences of any suspension shall be entirely borne by the Client, with the exclusion of any liability of CEGEKA.
5.1 LIMITED WARRANTY
Cegeka will be responsible for any non-compliance of the functioning of the software with the technical specifications indicated in the descriptive information materials. The licensee shall notify to Cegeka any defects or non-compliance of the software within three months of the relevant acceptance or by the terms of the testing as set forth in the Offer. After having performed the necessary assessments, Cegeka shall carry out any relevant interventions, by taking such technical measures as it may deem suitable in its sole discretion.
5.2 WARRANTY LIMITATION
The warranty does not apply to problems arising from the actions (or omissions) of the licensee or third parties including, by way of example, any modifications or implementations performed by the licensee, a partner or third parties acting on behalf of the licensee, or events outside the reasonable control of Cegeka.
6. WITHDRAWAL RIGHT
In case of subscription license of the software solution, either party may withdraw from this contract by notifying the other party via PEC, which will be established in the contract. In case of exercise of the right of withdrawal by the Licensee, Cegeka will be entitled to the payment of the consideration due for the activities provided, as well as an additional amount equal to 30% of the value of the residual activities still outstanding at that date, as compensation for the relative loss of profit.
Cegeka is responsible for providing support only in the presence of the latest version of the software containing the latest updates released.
7.1 SUPPORT LIMITATION
Cegeka will not provide any support:
- if the software is installed in an operating system not specified in the standard prescribed by Cegeka;
- in case of improper use of the solution and / or lack of training by the licensee staff on the use of the solution;
- if the software was supplied or maintained by different people not authorized by Cegeka;
- the hardware used to use the software does not meet the minimum requirements indicated by Cegeka.
8.1 - The contract shall be governed by Italian law.
8.2 - Any disputes which cannot be amicably settled between the Parties shall be submitted to the exclusive jurisdiction of the Courts of Milan.
8.3 - In case of some terms cannot be applied, the entire contract will remain valid and applicable in all its other points.
8.4 - The contract will be deemed concluded when any term described in it is violated, or the licensee ceases using the software, or in the case of cancellation of the subscription.
8.5 - The terms of this agreement can be modified only in writing by Cegeka. They represent the set of all agreements between the licensee and Cegeka in relation to the Cegeka software solutions.