1 SCOPE OF SERVICES

1.1 Services and Deliverables. Deepware shall provide Customer with the Services and Deliverables as specified in the Work Order. Work Order is a separate document specifying the detail, including the Services and the Deliverables to be provided, of each particular project. All Work Orders shall be subject to the provisions of this Agreement. For purposes of this Agreement, Services are defined as the professional services provided by Deepware’s employees and consultants for Customer in connection with the Deliverables. Services will be carried out at the fees established in each Work Order. Deliverables means the information, software and materials – all original works of authorship such as: data, notes, technical and/or business information, specifications, drawings, records, computer program enhancements and related documentation (Materials), developed by Deepware for Customer pursuant to the Work Order.

1.2 Change In Work Order. Either party may request changes to any Work Order (Requesting party) by submitting a written request (Change Request) to the other party (Receiving party), setting forth any modifications needed to complete the applicable Work Order. A written agreement by both parties is the only means of modifying the Work Order.

1.3 Response to Change Request. No Change Request shall be left unanswered. Receiving party shall respond to each Change Request no later than five (5) business days from the day of receipt, either by accepting such Change Request or rejecting it or requiring more time to evaluate it. Neither party is obligated to execute a Change Request, but parties hereby agree to employ reasonable commercial efforts to address and resolve any Change Requests that cannot be accepted by Receiving party. If the Change Request is acceptable to Receiving party, parties shall confirm this in writing. Receiving party may include a statement of the availability of its resources and the cost and schedule impact, if any.

2 PROPRIETARY RIGHTS

1.4 Background IPR. Each Party shall retain its Background IPR and Know-How. Parties may agree in the Work Order on an additional remuneration for Deepware to be paid by the Customer for the use of Deepware Background IPR in the Deliverables. This remuneration can be a lump-sum or on a royalty-basis.

1.5 Foreground IPR. Upon unconditional payment by the Customer of all outstanding invoices for the Services and Deliverables, Deepware shall transfer the Foreground IPR to the Customer and agrees to render its full assistance to the Customer obtaining and enjoying the Foreground IPR.

1.6 Right to Use. Deepware reserves the right, without being indebted any compensation to the Customer, to use the Know-How gained by Deepware during the performance of the Services, in its business operations and in the performance of (future) Work Orders from the Customer or third parties. The Customer grants Deepware a non-exclusive, non-transferable, non-assignable, royalty free, worldwide license, with the right to grant sub-licenses, to use all Foreground IPR for application in its ordinary course of business.

1.7 Third Party IPR. To the best of its knowledge Deepware represents that any goods, documentation and Deliverables provided, and Services performed under this Agreement will not constitute an infringement of any proprietary right or any patent, copyright, trademark, trade secret or any other IPR of any third party. However, Deepware will not investigate the existence of third-party IPR to the Foreground IPR unless explicitly stated otherwise in the Work Order. If Deepware knows that the exploitation of any good, documentation, Deliverable or service may infringe on a third party’s rights, Deepware shall immediately notify the Customer. Deepware does not warrant that Deliverables and Services do not infringe third party IPR and the Customer explicitly accepts that Deepware will have no liability or duty to indemnify in this respect.

1.8 Definitions. Background IPR shall mean all IPR to which a party is or becomes entitled other than Foreground IPR.

Foreground IPR shall mean IPR developed or created by either Party in the course of or in connection with this Agreement and the Work Order.

Know-How shall mean technical and other information which is not in the public domain, including, but not limited to, information comprising or relating to concepts, data, designs, diagrams, formulae, methods, models, procedures, processes, specifications and techniques, manufacturing and fabrication data, designs for experiments and tests, results of experimentation and testing, laboratory records, research plans, proprietary techniques, analytical and quality control data, photographs, drawings, details of business plans and financial projections, customer lists and supplier information and tangible objects.

IPR: means patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, goodwill, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including Know-How and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

3 CONFIDENTIALITY

3.1 Definitions. Confidential Information shall mean any and all intellectual property and proprietary information disclosed by either party (and its Affiliates) whether before or after the Effective Date and whether in written, oral or other tangible or intangible form, related to know-how, ideas, discussions, concepts, drawings,  designs,  specifications, 3D models,  prototypes, methodologies, and techniques; and proprietary information concerning the nature and operation of business processes; and business and/or product or service development plans, customer lists; pricing and contractual terms. Confidential Information shall also include such other information disclosed by either party (and respective Affiliates) to the other party in tangible or intangible form whether or not designated as proprietary or confidential.

Affiliate shall mean, with respect to any person or entity, any other person or entity who directly or indirectly controls, is controlled by or under common control with such person or entity.

Control means the possession, directly or indirectly, of more than fifty percent (50%) of the voting securities of such person or entity.

3.2 Use of Confidential Information. Each party shall use reasonable measures to protect the other party’s Confidential Information and shall not disclose any such Confidential Information to any third party except as permitted hereunder. Such measures shall be at least as stringent as the measures used by the receiving party to protect its own confidential information. Parties shall restrict access to Confidential Information to the recipient’s employees and consultants on a need-to-know basis and require written non-disclosure agreements from such employees and consultants protecting the disclosed Confidential Information. The receiving party agrees that the disclosing party is and shall remain the sole and exclusive owner of the Confidential Information and all patent, copyright, trade secret, trademark and other intellectual property rights therein. No license or conveyance of any such rights to the receiving party is granted or implied under this Agreement, unless expressly stated. This Section 3 shall not apply to such information which at any time:

is or becomes part of the public domain through no act or omission by the receiving party;

is independently developed by employees and/or consultants of the receiving party without use or reference to the Confidential Information of the other party; or

is disclosed to the receiving party by a third party that, to the receiving party’s knowledge, was not bound by a confidential obligation to the other party; or

is demanded by a lawful order from any court or any body empowered to issue such an order or otherwise required to be disclosed by law or regulation, provided that the receiving party has notified the disclosing party prior to the required disclosure and uses all reasonable efforts to contest or limit the scope of the Confidential Information being disclosed. Each party agrees to notify the other promptly of the receipt of any such order, and to provide the other with a copy of such order and a reasonable opportunity to obtain a protective order.

3.3 Permitted Use. The receiving party is permitted to use the Confidential Information solely for the purposes of performing its obligations in accordance with this Agreement. The disclosing party makes no representations or warranties concerning its Confidential Information.

3.4 Return and Destruction. Upon request of the disclosing party, the receiving party shall return or destroy (and prove the destruction of) all Confidential Information, and all copies, extracts, portions, notes, summaries and derivatives of the Confidential Information, received by the receiving party (or any of its Affiliates) under this Agreement or any Work Order in its possession or under its control.

3.5 Remedies. Each party acknowledges that the other party would suffer irreparable harm if the first party breaches the provisions of this Section 3, and that in the event of such a breach the other party shall be entitled to immediate equitable relief (including without limitation injunction(s) and order(s) for specific performance), in addition to and without limiting its other remedies at law or in equity.

3.6 Duration. This Section (excluding 3.5 above) shall apply for a period of three (3) years from the termination of all Services in accordance with this Agreement.

4 FEES AND EXPENSES

4.1 Pricing Mechanism. Parties agree that depending on the nature of each project a suitable pricing mechanism will be jointly agreed on by the parties per Work Order. The Work Order shall specify whether the charges shall be on a time and materials basis, a fixed price basis or a combination of both.

4.2 Time & Material. Where the Services are provided on a time and materials basis:

the charges payable for the Services shall be calculated in accordance with Deepware’ standard hourly rates, as amended from time to time by Deepware giving not less than one month’s written notice to the Customer; and

Deepware’ standard hourly rates for each individual person involved in the Services will be calculated on the basis of an eight-hour day, worked on a business day; and

all charges quoted to the Customer shall be exclusive of VAT, which Deepware shall add to its invoices at the appropriate rate; and

Deepware shall invoice the Customer monthly in arrears for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned.

4.3 Fixed Price. Where the Services are provided for a fixed price:

The total price for the Services shall be the amount set out in the relevant Work Order; and

The Customer shall pay the total price to Deepware (without deduction or set-off) in instalments, as set out in the relevant Work Order. Deepware shall invoice the Customer for each instalment, together with expenses, and the costs of materials (and VAT, where appropriate).

4.4 Payment Term. Invoices will be due and payable from the moment they are received by Customer. The Customer shall pay each invoice submitted to it by Deepware, in full and in cleared funds, within 30 calendar days of receipt of the invoice.

4.5 Interest. If the Customer fails to pay Deepware on the due date, the Customer shall be liable to pay an interest per month or part thereof, of the lesser of 1.5% or the maximum permitted by applicable law, on the delayed payments from the due date of payment. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and Deepware may suspend all Services until payment has been made in full.

All sums payable to Deepware under this Agreement shall become due immediately on its termination, despite any other provision.

4.6 No Set-off. All amounts due under this Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

4.7 Currency. All amounts are due in EURO.

5 WARRANTY

5.1 Scope. Deepware warrants that the Deliverables at the date of delivery and for three (3) months after that date will perform in accordance with the Work Order and are manufactured with sound workmanship and materials.

5.2 Remedies. The sole remedy for breach of warranty during the warranty period is the correction of defects by Deepware within a reasonable time from notification by the Customer at no costs to the Customer or re-performance by Deepware for free of the part of the Services of which it is evidenced (and accepted by Deepware) that it breaches the warranty unless the costs associated with the correction exceed the maximum amount as specified under clause 6.1. Deepware reserves the right to correct any defect in the software which does not materially affect the Customer’s operations in a new release of the software.

5.3 Notification. The Customer shall notify Deepware in writing of a warranty issue as soon as possible and at least within 14 calendar days.

5.4 Modifications. Any unauthorized modifications use or improper installation of the Deliverable by, or on behalf of the Customer, or the non-compliance by the Customer with Deepware’ maintenance guidelines for the relevant Deliverable, shall render all Deepware’ warranties and obligations under the Agreement and the Wok Order null and void.

5.5 Disclaimer. Deepware does not warrant uninterrupted or error-free operation of Deliverables, Services or software, nor that Deepware will correct all defects.

5.6 No Implied Warranty. Except as expressly stated in this Agreement, Deepware disclaims all warranties of any kind, implied, statutory, or in any communication between them, including without limitation, the implied warranties of merchantability, non-infringement, title, and fitness for a particular purpose.

6 LIABILITY

6.1 Deepware’s Liability. To the extent permitted by law, Deepware shall be liable for any damages, whether in contract, warranty or tort arising out of or in connection with the delivery, use or performance of the Services and/or the Deliverables, up to the maximum amount payable under the applicable Work Order which gave rise to the claim.

6.2 Limitations. Deepware shall not be liable for any claim to the extent such claim arises from (i) any modification of any Deliverable not provided or authorized by Deepware in writing; (ii) use of the Deliverable in combination with other programs or data not intended by Deepware to be used with the Deliverable; (iii) use of the Deliverable in a way not provided for or described in the applicable documentation and/or Work Order (unless such use is obvious) (iv) use of other than a current unaltered version of the Deliverable(s) after Customer has been notified in writing that use of such new release would avoid the infringement and Deepware has provided Customer such new version free of charge; (vi) any Intellectual Property provided by Customer.

6.3 Customer’s Indemnity. The Customer shall be responsible for, and shall defend, protect, release, hold harmless, indemnify and keep indemnified Deepware and the officers, directors, managers, employees, insurers and agents of Deepware, from and against all costs, claims, liabilities, damages, suits, causes of action and expenses (including, without limitation, attorneys’ fees and other legal costs and expenses), of whatsoever nature and howsoever caused, which in any way arises out of or in connection with the performance or non- performance of the Customer’s obligations under this Agreement including Customer’s obligation to administer and make payments of the costs associated with its use of the Services.

6.4 Consequential Losses. Except as expressly required by law without the possibility of contractual waiver, under no circumstances will the Parties be liable for any indirect, special, consequential or incidental damages, such as but not limited to loss of revenue, profits, business, goodwill, or anticipated savings, and reputational damages, however caused.

6.5 Statute of Limitations. Any claim for damages or allegation thereof against Deepware expires after a period of one year after the claim arises and should be addressed and notified to Deepware within 90 (ninety) calendar days from occurrence of event giving rise to the alleged damages.

 

7 TERM AND TERMINATION

7.1 Immediate Termination. Either party may terminate this Agreement and/or a Work Order, immediately upon notice to the other party:

in the event of a breach of a material obligation under this Agreement or the Work Order. Payment of the Fee by the Customer shall be considered a material obligation under this Agreement, or;

if the other party breaches any non-material obligation under this Agreement or Work Order, and such party fails to cure the breach to the notifying party’s satisfaction within thirty (30) days after written notice to cure.

if the other party becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, or becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, or is liquidated, voluntarily or otherwise.

7.2 Consequences of Termination. Upon termination of this Agreement and/or any Work Order:

all Materials shall be converted to the format mutually agreed by the parties in writing and delivered to, and approved by, Customer, no later than one (1) month from the date of termination of this Agreement;

each party shall return to the other or destroy all Confidential Information of the other party other than the IPR to which Customer holds license rights under this Agreement and except for any Confidential Information of Customer required by Deepware to complete an outstanding Work Order. After completion of such outstanding Work Order, all Confidential Information shall be returned to Customer or destroyed (and destruction confirmed in writing) immediately;

Customer shall pay Deepware all sums only for the work effectively performed under the affected Work Orders and all other outstanding amounts incurred up to the date on which the notice of termination from the terminating party is received, at the agreed upon prices, fees and expense reimbursement rates set forth in the relevant Work Orders.

8 GENERAL

8.1 Force Majeure. Neither party shall be liable for any damages or penalty to the other party for delays or failure to perform any obligations under this Agreement or any applicable Work Order when such delay or failure arises from any cause or causes beyond the reasonable control of the non­ performing party. Such causes shall include, but are not limited to, acts of God, acts of war, terrorist activities, act of nature, acts of the public enemy, embargoes, insurrection, riot, or the intervention of any government authority, floods, fires, pandemics, loss of electricity or other utilities or to factors beyond the other party’s reasonable control (Force Majeure Event). In case the Force Majeure Event endures for more than thirty (30) days, each party shall have the right to terminate this Agreement and/or the Work Order immediately after such period of thirty (30) days.

8.2 Entire Agreement. Unless the parties otherwise agree in writing, this Agreement, its Appendices and the Work Order(s) attached hereto constitute the entire agreement between the parties and supersede all previous agreements and oral discussions and understandings between the parties with respect to the subject matter of this Agreement.

8.3 Non-Solicitation. The parties agree that during the term of this Agreement, and for a period of twelve (12) months after termination/expiration of this Agreement, neither party shall directly or indirectly solicit for employment, employ, hire, or engage as a consultant/employee any person employed then or within the preceding year by the other party or any subsidiary or Affiliate thereof.

8.4 Modification of Agreement. This Agreement and/or any Work Order may only be modified by a written agreement duly signed by persons authorized to sign agreements on behalf of Customer and of Deepware.

8.5 Waiver and variation. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. Failure of either party to enforce any of the rights granted in this Agreement or a Work Order shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

8.6 Compliance with laws and regulations. The parties shall ensure that they comply with all current and future laws and regulations in the operations of their respective businesses.

8.7 Notices. All notices that one party may provide to the other pursuant to this Agreement shall be in writing and sent by registered or certified mail, return receipt requested, to the parties at the respective address listed first above.

8.8 Applicable Law. This Agreement is governed by and construed in accordance with the laws of Italy. The parties voluntarily submit to the exclusive jurisdiction and venue of the courts of Italy.

8.9 Assignment. No party may assign or otherwise transfer this Agreement and any of its rights or obligations without the express prior written consent of the other party.

8.10 Independent Contractor. Deepware and Customer are independent contractors and Deepware is providing Services within the meaning of Article 2222 and the following of the Italian Civil Code. Nothing contained in this Agreement will be construed as creating a joint venture or partnership, agency or employer/employee relationship.

8.11 Counterparts. This Agreement may be executed in counterparts, all of which together shall constitute one and the same instrument.

8.12 Conflict. In the event of conflict between the provisions of this Agreement and any Work Order, the provisions of the Work Order will take precedence.