Terms & conditions of sale

1. General terms and conditions

Unless otherwise provided for by specific agreement between the Parties, as hereinafter defined, these Terms and Conditions of Sale (“T&C”) are the exclusive terms and conditions under which:

Imagicle Spa ("Imagicle") sells and/or provides to You (“You” or “Customer”), and You purchase and/or accept from Imagicle software and services which may be provided in various forms such as, by way of example, perpetual licenses, subscriptions, cloud services Technical services, including, but not limited to Technical Support and Software Maintenance Services, Professional Services for deployment, configuration and user training. Above are collectively “the Offerings”.

 “Order Form” or “Proposal–Sales Order” mean the quote, the sales order or the statement of work accepted by Imagicle, identifying the Offerings purchased, quantities/metrics, fees, term and any special terms.

 A “Purchase Order” is a purchasing/administrative document that may be used by Customer/Reseller for internal purposes and invoice reference and does not amend the Contract unless expressly agreed in writing by Imagicle.

 “Reseller” means an Imagicle-authorized partner placing the Proposal–Sales Order and liable for payment, if applicable.

 “End User” means the final customer authorized to use the Offerings under the Proposal–Sales Order.

By purchasing the Offerings, Customer accepts those T&C which, therefore, shall apply to this sale.

Specifically, the Customer agrees to be bound by these T&C and the entire contractual documentation relating to the Offerings by placing an order, or when consenting, explicitly or implicitly, to the provision of an Imagicle Service.

Following the submission of a Purchase Order, these T&C will constitute a binding contract between You and Imagicle (together, the “Parties” and individually, each a “Party”). 

Each individual agreement entered between the Parties (the “Contract”) consists of, in addition to these T&C and the applicable Order Form, the documents listed below, as applicable to the Offerings purchased by Customer:

1. the applicable Service Agreement(s)  for the specific Offering(s) purchased (e.g., UCX Platform Cloud Service Agreement, Hybrid and Air-Gapped Service Agreement, Maintenance and Support Services, Advanced Services Agreement, and any other product- or service-specific terms published by Imagicle)

2. the end-user license agreement(EULA

3. the Data Processing Agreement (“DPA”) and applicable privacy documents, where personal data is processed

4. any Acknowledgments, if applicable

Customer is responsible for ensuring that its Authorized Users comply with the End User License Agreement and any acceptable use requirements applicable to the Offerings.
Customer will be responsible for any breach by its Authorized Users. 

“Authorized Users” means Customer’s and its End User’s employees and contractors authorized by Customer to access or use the Offerings. 

In the event of any conflict or inconsistency among the documents forming the agreement between Imagicle and Customer, the following order of precedence shall apply (highest to lowest):

(1)     the applicable Order Form (including any special terms stated therein)

(2)     these T&C

(3)     the applicable Service Agreement

(4)     the End User License Agreement

For matters related to personal data processing, Data Processing Agreement available at www.imagicle.com/legal-terms/data-processing-agreement shall prevail over this Agreement to the extent of any conflict or inconsistency, except that the limitation of liability set forth in this Agreement shall continue to apply to the extent permitted by applicable law. 

No additional or different terms and conditions can be applied without Imagicle’s prior written consent.

2. Purchase Order

Customer orders the Offerings by signing and delivering via e-mail one or more Imagicle Proposal - Sales Orders (as defined above) issued to orders@imagicle.com or to its Imagicle contact. 

The Proposal – Sales Order becomes legally binding for the Customer after its acceptance.

The Customer accepts the Proposal – Sales Order through a Purchase Order (as defined above), which can be on Imagicle’s standard or on a Customer template, and in this case, must indicate the Imagicle quote numbers as indicated in the Proposal – Sales Order.

Imagicle has the right to not accept the Purchase Order if:

(i)  the Proposal – Sales Order has been modified

(ii) the information required, or the signature, are not complete, or do not match Imagicle’s record

The Start Date of each Purchase Order (or “Contract Start Date” or “PO Start Date”) means, the start date specified in the Proposal – Sale Order or, if none, the date on which the last of Imagicle and Customer executes the Proposal – Sales Order.
If Customer purchases the Offerings through a Reseller, the Purchase Order Start Date is upon Imagicle’s acceptance of the Purchase Order following its submission by the Reseller.

In such case certain of Customer’s obligations hereunder may be performed through the Reseller (Imagicle’s Partner expressly authorized by Imagicle to resell on its behalf) instead of directly to Imagicle, all pursuant to any instructions the Reseller provides to the Customer. Reseller is authorized and/or required to delegate certain rights and/or obligations hereunder to the Customer.

If Customer requires to issue the Purchase Order on its template, it must provide to Imagicle such valid templates conforming to the applicable Proposal – Sales Order in time for Customer to meet its payment obligations. 

The terms and conditions of any Purchase Order (or of any other unilateral Customer document not agreed in writing by authorized representatives of both Parties) will have no effect on the rights or obligations of the Parties, regardless of any failure to object to such terms and conditions.

3. Prices

Subject to these T&C, pricing for the Offerings can be found in the Customer area on the Imagicle website accessible through user credentials and passwords provided by Imagicle or established in the bids/quotations proposed to the Customer.

Bids/quotes expire after thirty (30) days, unless otherwise specified in the offer made to the Customer.

Prices displayed are always tax excluded, which will be calculated subsequently based on the billing address of the customer.

Imagicle reserves the right to make adjustments to the Offerings' pricing for reasons including, but not limited to:

·         Price variations established unilaterally by Imagicle

·         Changing market conditions

·         Product unavailability

·         Modification and errors in bids/quotes

4. Subscriptions terms

For the purpose of the present T&C, “Subscriptions” are hereunder referred to the Offerings purchased alone or together with Technical Support and Software Maintenance Services for a specified period of time.

Each Contract (executed upon the acceptance of Imagicle – Proposal Sales Order by the Customer with a Purchase Order according to the procedure described in article 2) shall begin on the Purchase Order Start Date, and will continue for the period specified in the Proposal - Sales Order or, if not so specified, one year, which is the minimum “Initial Term”.

Unless otherwise specified in the Proposal- Sales Order, the Initial Term will be automatically renewed for additional term of the same length as the Initial Term (each a “Renewal Term”) unless either Party declines renewal by notice in writing to that effect delivered to the other Party at least thirty (30) days prior to expiration of the then current term.

The Initial Term and each Renewal Term are individually referred to in this Contract as the “License Term”.

The Subscriptions Fees could be subject to annual increases, which will be effective beginning upon the first day of each Renewal Term.

Imagicle will notify Customer of any increase prior to its becoming effective; notice may be in a form of a Proposal-Sales Order.  

Customer acknowledges that expiration of any discount or incentive programs to which Customer was previously entitled do not constitute fee increases.

Customer may terminate any Contract for convenience following expiration of the Initial Term specified in the Proposal -Sales Order, upon not less than 30 days prior written notice to Imagicle. If Customer terminates any Contract, Customer will not be entitled to any refund of Subscription Fees paid or relief from Subscription Fees payable under such Contract.

If either Party materially breaches any of its obligations under this T&C or under any individual Contract and fails to remedy such breach within thirty (30) days from the date it receives from the non-breaching Party a notice of the breach and a demand for remedy, then the non- breaching Party may terminate all or any affected Contracts immediately on notice.

Without limiting the foregoing, Customer’s failure to pay past due Subscription Fees within 15 days of receipt of a written notice of late payment will constitute a material breach of the applicable Contract.
If Customer has not remedied a material breach within the applicable remedy period, until Customer has remedied the breach in full, Imagicle may, in its sole discretion, and without prejudice to its other rights following material breach and failure to remedy, (i) suspend performance of some or all of Imagicle’s obligations under the applicable Contract, including obligations to provide the Offerings and (ii) suspend the Offerings granted pursuant to the applicable Contract.
Notice of termination for any individual Contract will not be interpreted to be a notice of termination for any other Contract.

No expiration or termination of this T&C or of any Contract will relieve Customer of its obligation to pay any amounts accruing under such Contract prior to such expiration or termination.

5. Payments

All obligations to pay Fees and charges for the Offerings are non-cancelable and all payments are non-refundable.
Customer must make all payments without setoffs, withholdings or deductions of any kind.

Customer must pay all Fees and charges due under all order forms in advance or as specified in the Proposal – Sales Order.

Customer will make all payments in the currency specified in the Proposal – Sales Order.

All invoices issued by Imagicle shall be paid via Wire transfer (ETF), Credit card, PayPal or as specified in the applicable Proposal – Sales Order.

In case of payment delays, Imagicle reserves the right to inhibit the use of and/or to suspend access to the Offerings. 

In case of payment in installments or any other one-off sums owed, the non-payment of even one installment causes the termination, for the Customer, of the benefit of the term, empowering Imagicle to demand immediate payment of the entire sum.

It is understood that, in the event of termination of the relationship, the Customer will be required to pay, with a single payment, all sums established by the installment plan.

All costs incurred by Imagicle for the collection of overdue amounts, including legal fees, are charged to the Customer, as permitted by laws and regulations.

6. Taxes

Unless expressly specified otherwise in any Proposal – Sales Order, all Fees and charges, rates and estimates exclude Taxes. If Customer has tax-exempt status, Customer will provide written evidence of such status.

Customer will be responsible for any applicable sales, use, or any value added or similar taxes (“Taxes”) payable with respect to the licensing of the Offerings to Customer, or otherwise arising out of or in connection with this T&C, other than taxes based upon Imagicle’s personal property ownership or net income.

7. Limitations of liability

Imagicle will not be responsible for interruptions, delays, and malfunctions in the provision of the Imagicle Solutions and/or Services deriving from the (i) Customer’s breaches, (ii) application of specific laws or regulations, (iii) unforeseeable circumstances or force majeure without prejudice to the terms established by mandatory provisions of the law.

The following paragraphs apply to the maximum extent permitted by applicable law.

No Consequential or Indirect Damages: under no circumstances, and notwithstanding any failure of the essential purpose of any remedy set forth herein, shall Imagicle or its suppliers, subcontractors or agents be liable to Customer or any third party under these terms and conditions or under any additional documentation for any consequential, incidental, indirect, exemplary, special or punitive damages, including any damages for business interruption, loss of use, data, revenue or profit, whether arising out of breach of contract, tort (including negligence), strict liability or otherwise, regardless of whether such damages were foreseeable and whether or not Imagicle was advised of the possibility of such damages.

Maximum Liability. In no event, also in case of ascertained and established responsibility, shall Imagicle’s aggregate and cumulative liability arising out of or relating to these T&C or any additional documentation or individual contract, whether arising out of or relating to breach of contract, tort (including negligence), or otherwise, exceed the total amount actually paid to Imagicle by Customer in the last 12 months for the Imagicle solutions or services giving rise to the claim. The foregoing limitations shall apply even if the Imagicle’s remedies under this agreement fail of their essential purpose.

No action, regardless of form, arising out of or related to this Agreement may be brought by either Party more than two (2) years after the cause of action has arisen, or in the case of non-payment, more than two (2) years after the date the payment was due.

8. License and Intellectual Property Rights

Imagicle owns all rights, copyrights, title and interest and, in general, all intellectual property rights (“Intellectual Property Rights” or “IP Rights”) in the Offerings and related Documentations.

Upon any individual Contract, Imagicle grants the Customer a non-exclusive right to use the Offerings  in accordance with the applicable Service Agreement and, where applicable, the relevant license agreement (EULA).

It is understood that the license agreement does not grant to the Customer or third parties any Imagicle IP’s rights.

9. Confidential information

“Confidential Information” means all information communicated by either Party to the other pursuant to or in connection with this T&C or with an individual Contract, that the disclosing Party identifies as being proprietary or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary or confidential. The receiving Party will not disclose the disclosing Party’s Confidential Information to any third party, and will protect the disclosing Party’s Confidential Information using the same degree of care it uses to protect its own Confidential Information, and in no event less than a reasonable standard of care. The receiving Party will not use such Confidential Information except to further the purposes of this Contract. Imagicle’s Confidential Information includes information regarding products, pre-release products, software, services, pricing, marketing and business plans and financial information. Imagicle and Customer will treat the terms and conditions of this Contract as confidential.

Confidential Information will not include information that:

(i) has entered the public domain without the receiving Party’s breach of any obligation owed to the disclosing Party

(ii) has been rightfully received by the receiving Party from a third party without confidentiality restrictions

(iii) is known to the receiving Party without any restriction as to use or disclosure prior to first receipt by the receiving Party from the disclosing Party hereunder or

(iv) has been independently developed by the receiving Party

If any applicable law, regulation or judicial or administrative order requires the receiving Party to disclose any of the disclosing Party’s Confidential Information (a “Disclosure Order”) then, unless otherwise required by the Disclosure Order, the receiving party will promptly notify the disclosing Party in writing prior to making any such disclosure, in order to facilitate the disclosing Party’s efforts to protect its Confidential Information. Following such notification, the receiving Party will cooperate with the disclosing Party, at the disclosing Party’s reasonable expense, in seeking and obtaining protection for the disclosing Party’s Confidential Information.

The terms of confidentiality under this T&C will not limit either Party’s right to independently develop or acquire products without use of the other Party’s Confidential Information.

Imagicle is permitted to identify Customer as an Imagicle Customer on Imagicle’s website and marketing materials.

10. Export control

The Offerings may be subject to export control and sanctions laws. Customer agrees to comply with all applicable export control and sanctions regulations.

The Offerings and all related Documentation may be subject to the export rules of the country in which the Customer has its registered office.

11. Variations to T&C

The T&C applicable to an individual Contract shall always be the one accepted by You at the time the applicable Order Form is executed/accepted (Effective Date).

Imagicle may update these T&C from time to time by posting an updated version on its website.

Unless the Parties expressly agree otherwise in writing, any updated T&C will apply only to Proposal-Sales Orders accepted on or after the effective date of the updated T&C and will not retroactively amend an existing Contract.

12. Governing law, compulsory arbitration, jurisdiction

Any dispute concerning the interpretation and execution of these T&C and/or of any individual Contract, shall be submitted before the Court of Milan (Italy).

The T&C and any individual Contracts shall be governed by the Italian law. The 1980 Vienna Convention on Sale of Good and any other laws governing international sales shall not apply.

13. Assignment

The Customer hereby expressly consents Imagicle to assign any individual Contract to any subsidiary, and/or in the event of a merger or sale of all or substantially all of the stock asset of Imagicle, without further Customer consent. Imagicle will however notify the Customer in case of assignment.

No individual Contract may be assigned, or otherwise transferred, in whole or in part, by the Customer without Imagicle’s written consent. If Customer assigns the Contract in conflict with the provisions above, Imagicle may terminate the Contract with immediate effect.

14. Miscellaneous

The Contract between Imagicle and the Customer will be binding on both Parties.

Finally, the Contract, including the sections of which it is composed, and which constitute an integral and substantial part of it, constitute all the terms and conditions agreed upon between the Customer and Imagicle and supersede any prior notes in relation to the subject matter of the Contract, whether written or oral (e.g. telephone).

15. Contacts

For any questions or clarifications, you can contact Imagicle at administration@imagicle.com