1. Parties, definitions and contact
1.1 These terms are issued by ALEPH DIGITAL INDUSTRY S.R.L., registered office Via Olivi 3, 31100 Treviso (TV), Italy; VAT IT04857100269 ("Aleph").
1.2 Questions, complaints and claims concerning any Offering: telephone +39 0422 789611; e-mail sales@aleph.solutions.
1.3 In these terms:
- "Customer" means the legal entity named in the Order.
- "Documentation" means the user documentation Aleph publishes for an Offering, as updated from time to time.
- "Marketplace" means the Siemens Xcelerator Marketplace, including its Industrial Edge channel, operated by Siemens.
- "Offering" means any Aleph software or service ordered through the Marketplace.
- "Offering Terms" means the product-specific terms Aleph publishes for an Offering.
- "Order" means a purchase of an Offering placed by the Customer through the Marketplace.
- "Subscription Term" means the period for which an Offering is ordered, including any renewal.
2. Scope and contract formation
2.1 These terms and the applicable Offering Terms govern every Offering. By placing an Order through the Marketplace and accepting these terms, the Customer makes a binding offer to Aleph. The contract is formed when Aleph accepts the Order. Aleph may reject an Order, in particular where §12 would be breached. Aleph may also require acceptance of these terms within the Offering at installation or activation.
2.2 Offerings are supplied exclusively to businesses acting in the course of their trade, business or profession. By placing an Order the Customer confirms that it is not a consumer.
2.3 The purchase contract is solely between Aleph and the Customer, and not between Siemens and the Customer. Siemens operates the Marketplace, is not a party to this contract, gives no warranty or representation concerning the Offering, and has no liability to the Customer in connection with it. The Customer's sole recourse is against Aleph. Siemens may rely on §8 and §9 as if it were a party.
2.4 The Customer's own purchasing terms do not apply, even if referenced in an Order or other document.
3. Precedence
3.1 The Marketplace provides the ordering process, payment processing, provisioning, Subscription Term, automatic renewal, cancellation and trial conversion. On those matters the rules of the Marketplace applicable to the Order prevail over these terms.
3.2 On all other matters, these terms and the Offering Terms govern. If they conflict, the Offering Terms prevail for that Offering.
4. Term, renewal and termination
4.1 The Subscription Term, its automatic renewal and the Customer's right to cancel operate as provided by the Marketplace for the Offering at the time of the Order. The Customer cancels through the Marketplace within the deadline the Marketplace sets.
4.2 Either party may terminate the contract for material breach by the other party that is not remedied within 30 days of written notice. Aleph may terminate with immediate effect for breach of §7.3 (restrictions) or §12 (export control and sanctions).
4.3 Termination is executed through the Marketplace where it provides a mechanism. Fees paid are not refunded, except where mandatory law requires or the termination results from Aleph's uncured material breach.
5. Fees, taxes and payment
5.1 Fees are those shown for the Offering on the Marketplace at the time of the Order. They are exclusive of VAT and other indirect taxes. Aleph invoices the Customer as supplier.
5.2 For Customers established in another EU Member State the reverse-charge mechanism applies. The Customer warrants that the VAT identification number given in the Order is valid. If it is not, Aleph may charge Italian VAT.
5.3 If the Customer is required by law to make any tax deduction or withhold taxes, it must still pay the amount originally invoiced, without any deduction.
5.4 Payment is made by the method offered by the Marketplace for the Order. A chargeback or reversal of a payment counts as non-payment. Overdue amounts bear interest at the rate set by Italian Legislative Decree 231/2002.
6. Suspension
6.1 Aleph may suspend an Offering if the Customer fails to pay an amount due within 15 days of a written reminder, or if suspension is required to comply with law or to prevent a serious security risk.
6.2 Suspension of a machine-control Offering returns the controlled equipment to its normal operator control, as described in the Offering Terms. It never commands a machine or line stop.
7. Licence, intellectual property and restrictions
7.1 Aleph and its licensors retain all rights in the Offerings, including software, models, algorithms, methods and Documentation. No right passes to the Customer except as expressly granted.
7.2 For the Subscription Term, the Customer receives a non-exclusive, non-transferable, non-sublicensable licence to use the Offering for its internal business purposes, within the scope set by the Offering Terms and the Documentation.
7.3 The Customer shall not, except as permitted by mandatory law:
- copy, modify, translate or create derivative works of the Offering;
- decompile, disassemble or reverse-engineer it;
- resell, rent, lend, sublicense or otherwise make it available to third parties;
- circumvent any licence-control mechanism;
- use it beyond the licensed scope.
7.4 Aleph may use any feedback or suggestion from the Customer without restriction or payment.
8. Warranty and disclaimer
8.1 Aleph warrants that it will provide the Offering with reasonable skill and care and that the Offering will materially conform to its Documentation. The Customer's sole remedy for breach of this warranty is correction of the non-conformity or, if Aleph cannot correct it within a reasonable time, termination and refund of prepaid fees for the unused part of the Subscription Term.
8.2 Except as stated in §8.1, and to the maximum extent permitted by law, the Offering is provided "as is". All other warranties, express or implied, including merchantability and fitness for a particular purpose, are excluded.
8.3 Statements in marketing material, the Marketplace listing, demonstrations or pre-contract discussions are not warranties. The Customer does not rely on them in entering into the contract.
9. Limitation of liability
9.1 Neither party is liable for indirect, incidental, special or consequential damages, or for loss of production, revenue, profit, business, data or goodwill, however arising.
9.2 Each party's aggregate liability arising out of or in connection with the contract is limited to the fees paid or payable for the affected Offering in the 12 months preceding the event giving rise to the claim.
9.3 During any free trial, Aleph's liability is excluded to the maximum extent permitted by law.
9.4 §9.1 to §9.3 do not apply to liability for:
- death or personal injury caused by negligence;
- fraud, wilful misconduct or gross negligence;
- the Customer's breach of §7 or §12;
- either party's breach of §10;
- any other liability that cannot be limited under applicable law.
10. Confidentiality
10.1 Each party shall keep confidential the non-public information it receives from the other party, use it only to perform the contract, and protect it with at least reasonable care. This obligation survives the contract for 5 years, and indefinitely for trade secrets.
10.2 Information is not confidential if it is or becomes public without breach, was already lawfully known to the receiving party, is lawfully received from a third party, or is independently developed.
10.3 A party may disclose confidential information where required by law or by a competent authority. Aleph may disclose the existence and terms of the contract, and Order and billing data, to the Marketplace operator and its auditors, payment service providers, tax authorities and professional advisers, each under a duty of confidentiality.
10.4 Customer operational data is Customer confidential information, subject to the Offering Terms.
11. Data protection
11.1 The Offerings are designed to process machine and production data and are not intended to process personal data.
11.2 To the extent the operation or support of an Offering involves personal data (for example user identifiers in audit logs or remote-support sessions), the parties will agree a data processing agreement under Regulation (EU) 2016/679 before such processing.
11.3 Aleph processes business contact data of Customer personnel as an independent controller, in accordance with its privacy notice at https://www.aleph.solutions/utility-pages/privacy-policy.
12. Export control and sanctions
12.1 The Customer represents that neither it nor any entity owning or controlling it is subject to sanctions of the European Union, the United Nations, the United Kingdom or the United States. It further represents that it is not located in, and will not use the Offering from or give access to it from, any country or territory subject to comprehensive sanctions.
12.2 The Customer will not use the Offering for military, defence, nuclear or weapons purposes, and will comply with applicable export-control law on any transfer.
12.3 Breach of this §12 entitles Aleph to suspend or terminate immediately, without liability or refund. The Customer indemnifies Aleph against any loss arising from such breach.
13. Continuity
The licence and Aleph's support obligations do not depend on the Marketplace. If an Offering ceases to be available through the Marketplace, the subscription continues for its current Subscription Term, Aleph delivers and supports the Offering directly, and any fees still due become payable to Aleph on Aleph's invoice.
14. Governing law and disputes
14.1 These terms and the contract are governed by Italian law, excluding its conflict-of-laws rules and the United Nations Convention on Contracts for the International Sale of Goods.
14.2 Any dispute arising out of or in connection with the contract is finally settled by arbitration under the Rules of the Milan Chamber of Arbitration, by a sole arbitrator, seated in Milan, in English.
14.3 Either party may seek urgent interim relief from any competent court.
15. General
15.1 Force majeure. Neither party is liable for delay or failure caused by events beyond its reasonable control. This does not apply to payment obligations.
15.2 Assignment. The Customer may not assign the contract without Aleph's prior written consent. Aleph may assign it to an affiliate or to a successor of its business.
15.3 Notices. Notices to Aleph are sent to the e-mail address in §1.2. Notices to the Customer are sent to the contact details given in the Order.
15.4 Severability. If a provision is invalid, the rest of the contract remains in force, and the invalid provision is replaced by a valid one closest to its purpose.
15.5 Entire agreement. The Order, these terms and the Offering Terms are the entire agreement on their subject matter.
15.6 Language. These terms are drafted in English, and the English version prevails over any translation.
15.7 Amendments. Aleph may amend these terms. Amendments apply to new Orders from publication, and to existing subscriptions from their next renewal, provided Aleph publishes them at least 90 days before the end of the current Subscription Term. Every version is dated and remains available at the address above.
16. Specific approval
Pursuant to Articles 1341 and 1342 of the Italian Civil Code, the Customer specifically approves the following clauses: