General Terms and Conditions for Software License and Service Agreement

For the purposes of this Agreement:

Platform: the proprietary software technology owned exclusively by GEL Proximity S.r.l.

Client: any natural or legal person entering into a contractual relationship with GEL as Merchant, Service Provider or Logistics Operator.

Merchant: any natural or legal person carrying out retail business activities.

End user: any natural or legal person concluding a remote sales transaction on the Merchant’s store.

Pickup Point: any physical or automated location made available to GEL through agreements with third parties.

Parcel: a single unit of load or packaging containing one or more items.

Network: the collective network of proprietary and third-party Pickup Points, Operators and Logistics Services that can be activated through the Platform by placing service orders with Third Parties.

Third parties / Operators: natural or legal persons who provide Pickup Points and/or perform transportation or shipment of parcels under contract with GEL.

Track & Trace: tool enabling monitoring of shipment, handling and collection status.

2.1. Upon the Client’s acceptance of the offer and of these General Terms and Conditions, GEL hereby grants to the Client, which accepts, a non-exclusive, non-transferable license to use the Platform, of which GEL is the lawful owner.

The license granted under this Agreement allows the Client to run the GEL software solely for the purpose of integrating the functionalities of the Platform and, therefore, exclusively for the purpose of offering the Services to End Users. Any other form of use, exploitation or execution by the Client or by third parties is excluded from the scope of the license and shall be deemed prohibited. The Client is expressly prohibited from distributing, sublicensing or otherwise transferring to third parties its personal access credentials to the Platform.

2.2. Any trademarks, whether registered or unregistered, as well as any and all distinctive signs or names affixed to the Platform and to the related documentation, shall remain the exclusive property of GEL or of third parties, and no rights whatsoever therein shall be granted to the Client as a result of the execution of this Agreement.

2.3. This license does not grant any rights in or to the original source code. All technical information, algorithms and processes contained in the GEL Proximity software and in the related documentation constitute copyright-protected information, the intellectual property rights of which are owned by GEL. Accordingly, such information may not be used in any manner by the Client and/or the Merchant, nor for any purposes other than those expressly set out in this Agreement.

2.4. This license shall automatically terminate and cease to have effect upon the expiration or termination of this Agreement, the duration and termination provisions of which are governed by Clause 11.

3.1. GEL provides and makes available to the Client, through the Platform licensed for use, a network of Pickup Points (whether physical or automated) and carriers, located and operating across the territory, and is able to arrange for the performance of the Services by Third Parties.

3.2. The characteristics, composition and extent of the Network may be verified by the Client at any time through consultation of the Platform, which displays, inter alia, a variable and continuously updated indication of the active Pickup Points, based on the information and performance data provided on an ongoing basis by each Single Operator.

3.3. The Client acknowledges and accepts that the characteristics, composition and extent of the Network may vary and may be modified at any time at GEL’s sole discretion, without any party being entitled to raise objections or to assert any claim whatsoever on any grounds, all such rights being hereby expressly and irrevocably waived.

3.4. Upon integration of the Platform and, in any event, upon its activation, the Client shall have the right and the ability to independently disable Pickup Points, Networks and/or transport services provided by each Single Operator, by means of the specific functionality available within the Platform.

4.1. Upon activation of the Platform and its proper integration, the Client shall be able to offer End Users the option of delivery to or collection of purchased goods at the Pickup Points of the Network. The Client shall have the right to independently activate, through the Platform, multiple Services including, by way of example and not limitation, the transportation of goods from a designated picking location to a selected Pickup Point, or vice versa (reverse logistics services), as well as services consisting solely of the storage of parcels at a Pickup Point and their handover to the End User.

4.2. The Services offered by GEL, which shall be requested and activated from time to time through the Platform in favour of the End User, may, as further specified in Article 8 below, also be performed by Third Parties. The Client acknowledges and accepts that the methods of performance of the Services, as well as any limitations, exclusions, requirements and obligations applicable to the Client and/or the Merchant and/or the End User – which may include, by way of example and not limitation, maximum parcel size and weight, packaging requirements, categories of excluded goods, indicative execution timelines, and maximum storage periods at the Pickup Points – shall vary depending on the Single Operator activated, and that such terms are known or knowable by the Client through consultation of the relevant Transport and/or Storage Policies available on the Platform, which are hereby expressly incorporated by reference and form an integral part of this Agreement.

5.1. The consideration payable by the Client to GEL shall be determined on the basis of a unit amount (plus VAT) for each parcel managed through the Platform and/or transported and/or handled and/or stored at a Pickup Point within the Network, pursuant to and for the purposes of Clause 5.2 below (the “Unit Fee”).

5.2. The amount of the Unit Fee, payable by the Client for each parcel from the moment of and in consideration of the receipt of the order on the Platform, shall vary depending on the type of service, the Single Operator activated, as well as on the dimensions and/or gross weight and/or volumetric weight of the parcel (as declared by the Client, unless otherwise determined by Third Parties), and on the location of the origin/destination warehouse and/or the destination/origin Pickup Point. The Unit Fee, as well as the criteria and methods for its determination and calculation, are set out and published on the Platform for each Single Operator, within the “Networks and Plans” section, which shall be deemed hereby fully incorporated by reference, as amended from time to time.

5.3. By executing these General Terms and Conditions, and/or by integrating the Platform and/or activating the Services, the Client declares that it has reviewed, is aware of, and hereby accepts in advance the applicable fees, as well as the criteria and methods for their calculation, for each Single Operator and/or service, which shall be automatically applied and charged to the Client through the Platform.

5.4. In the event of direct or indirect increases in costs and/or operational difficulties, GEL reserves the right to modify, at its sole discretion, the amount of the Unit Fee payable by the Client, by providing notice to the Client through the prompt publication of such changes within the Platform, in the “Networks and Plans” section. Such modifications shall be deemed accepted and effective between the Parties with respect to Services activated after the publication of the relevant change, without prejudice to the Client’s right to disable a Single Operator (as provided under Clause 3.4) and to exercise its right of withdrawal (as provided under Clause 11).

5.5. GEL shall issue, on a monthly basis, an invoice to the Client including a statement of the Unit Fees accrued in relation to the Services performed during the relevant month, accompanied by a detailed summary. The Client shall have a term of 10 (ten) days from receipt of the invoice, under penalty of forfeiture, to raise any objections, failing which the invoiced amount shall be deemed accepted. Unless the Client has activated the Wallet Service, which provides for advance payment, the Client shall pay the amounts due to GEL within 30 days from the date of issuance of the invoice, by bank transfer.

5.6. The Parties acknowledge and agree that the existence of any disputes or objections of any kind shall not entitle the Client to suspend or delay, in whole or in part, the payment of any amounts due.

5.7. Any rebates, discounts or tariff advantages obtained by GEL shall not be credited to the Client, who expressly acknowledges and accepts that the determination of the Unit Fee is at GEL’s sole discretion.

5.8. Any subsequent determination of incorrect input by the Client of one or more parameters relevant for the calculation of the Unit Fee, and/or any exceeding of dimensional limits of the parcels resulting in additional charges or a higher Unit Fee, shall result in such additional amounts being charged in the next available invoice.

6.1. The Client undertakes, at its own expense and cost, to put in place all IT and technical conditions necessary to implement the integration of the Platform. The Client further represents and warrants that it has provided GEL, in the pre-contractual phase, with complete and accurate information, including, by way of example and not limitation, information relating to the characteristics of its IT systems and of the software used for the management of its online store and warehouse (WMS). GEL shall not be liable for any delay in the integration of the Platform or for any malfunction of the Platform that is directly or indirectly connected to the Client’s failure to comply with the obligations set forth herein, or to the inaccuracy or incompleteness of the information provided during the pre-contractual phase, or to any causes attributable to the integration activities carried out by the Client or by any third party appointed by the Client.

6.2. GEL shall make itself available to perform, together with the Client, a functional testing of the Platform; failing such testing, the Platform shall in any case be deemed fully accepted for all purposes.

6.3. Following the integration, GEL shall provide the Client with a personal, non-transferable “Account”, through which the Client may access the Platform, activate the Services and manage all related functionalities. The Client’s personal Account shall be accessible through credentials (username and password) which shall be communicated by GEL upon confirmation of registration. The username and password selected by the Client are strictly confidential; the Client shall promptly notify GEL in the event of suspected unauthorized use or loss of such credentials; it being understood that the Client shall remain solely responsible for any consequences arising from any use of the assigned Account. The Account created by the Client is strictly functional to the use of the Services and shall therefore remain the property of GEL, which grants it under license together with the Platform. GEL reserves the right to remove such Account or to suspend, in whole or in part, the provision of the Account and/or the Services, where reasonably deemed necessary in order to prevent or mitigate legal, regulatory or otherwise detrimental consequences for GEL, without prejudice to the provisions set forth under Clause 15.5.

6.4. It is understood that any customization relating to the functionality, layout or any other aspect of the Platform shall be provided, subject to a feasibility assessment at GEL’s sole and absolute discretion, only against payment of a fee to be separately negotiated and agreed between the Parties under a separate agreement, which shall be deemed outside the scope of this Agreement.

6.5. Under no circumstances shall the Client be authorized to carry out any modifications or integrations to the Platform and, therefore, to the Software licensed by GEL, and the Client undertakes to exclusively appoint GEL for any maintenance activities or extensions of the Platform.

6.6. GEL reserves the right to modify the Platform in terms of layout and/or other features, and the Client hereby undertakes and gives its prior consent to implement and integrate any updates and related modifications.

7.1. The Client shall have the obligation to promptly notify GEL in writing of any malfunctions of the Platform, and GEL shall take action to remedy such malfunctions.

In particular, the Client shall provide GEL via email with the following information:

• a description of the issue;
• the text of any error code received;
• a description of the actions performed prior to the occurrence of the issue;
• a report of any recent and known changes to the Client’s equipment (e.g., installation of additional software).

7.2. GEL undertakes to review any malfunction reports received and reserves the right to carry out any maintenance activities deemed necessary in order to ensure the proper functioning of the Platform and its functionalities at all times.

7.3. The occurrence of any malfunctions shall in no event entitle the Client to suspend the payment of any fees due in relation to Services previously rendered.

8.1. GEL hereby declares that the performance of the Services may be entrusted to Third Parties, pursuant to the agreements in force between GEL and such Third Parties and based on the specific Service activation requests submitted by the Client.

8.2. GEL represents that it has obtained contractual assurances from the Third Parties with respect to:

i) the existence of the professional qualifications, reliability, expertise and capability required for the proper performance of the services made available through the Platform, as well as the possession by such Third Parties, or by their personnel and contractors, of all licenses, authorizations, permits and qualifications necessary for the performance of the Services;

ii) the fact that all means, tools, facilities, equipment and resources necessary to ensure the proper performance of the entrusted Services have been made available and organized, and that such Services shall be performed under the Third Parties’ own responsibility and at their own risk throughout every stage of the logistics and distribution process.

8.3. GEL further represents and warrants that it has contractually reserved the right to verify and ascertain that the Third Parties engaged for the provision of the Services are lawfully in possession of all requirements, qualifications, licenses, authorizations and permits necessary for the performance of all activities entrusted to them.

8.4. GEL warrants that it has real-time access to the information systems of the Third Parties engaged in the performance of the Services, for the purpose of obtaining information regarding the status of such Services through parcel tracking systems ( “track & trace”), in accordance with the methods and functionalities made available by such Third Parties. In particular, processing statuses and final proof of delivery or collection of one or more parcels shall be made available by GEL to the Client and to the Merchant, and consequently to the End User, through the Platform or through other communication channels, provided that GEL has been supplied with the personal data necessary for such communications.

9.1. In order to enable GEL to correctly and timely activate the requested Services, the Client, also pursuant to Article 1381 of the Italian Civil Code on behalf of the Merchant and/or the End User, undertakes:

a) to use the Platform truthfully, properly and with due care when transmitting to GEL information relating to the goods subject to the logistics activities, including quantities, weight, dimensions and number of parcels relating to each assignment, as well as any specific characteristics thereof;

b) to provide GEL, through the Platform, with accurate and truthful identification details, email addresses and telephone numbers of the recipients and/or persons entitled to receive the goods, the location for collection or delivery of the parcel, and any relevant characteristics of the goods, supplying all information necessary for the proper performance of the Services and for communications with the End User regarding product availability, shipment status, collection and other functionalities;

c) not to make any modification to an order already submitted and/or booked through the Platform (including, by way of example, changing the collection or delivery location);

d) to fully comply with the “Transport and Pickup Point Policies” and/or the general terms and conditions established by the Third Parties, and therefore with all rules made available to the Client, the Merchant and the End User through the Platform, including those referred to in Article 4.2 above;

e) not to establish direct contact with the operators or managers of individual Pickup Points within the Network during the term of this Agreement;

f) to bear the costs of return shipment in the event that the End User fails to collect the purchased goods deposited at a Pickup Point within the time limits established by the relevant Single Operator. In such event, upon expiration of the maximum storage period allowed, GEL shall arrange for the shipment of the uncollected goods to the warehouse indicated by the Client on the Platform. The amounts payable by the Client in this respect shall be included in the monthly statement of Fees referred to in Clause 5.5;

g) to verify the accuracy of all information communicated and/or entered into the Platform, particularly with regard to the number of parcels, the gross weight of each parcel and each dimension provided. The Client acknowledges that, should such information, upon verification at the facilities of a Third Party, prove to be different from that declared, the Client may incur additional charges or refusal of acceptance by the relevant Third-Party operator, with the corresponding costs being charged to the Client.

9.2. The Client authorizes GEL to use its trademark, logo and/or other distinctive signs solely for the purpose of displaying and publishing them on the Platform, in corporate presentations and on GEL’s website for informational, descriptive and promotional purposes only. The foregoing uses are granted to GEL free of charge and, accordingly, no fee, royalty, compensation or indemnity shall be payable by GEL to the Client in connection therewith. Any further use or exploitation of the Client’s trademark, logo or other distinctive signs shall be excluded unless expressly authorized in writing by the Client.

10.1. The Client acknowledges and accepts GEL’s role and the essentially technological nature of the services provided by GEL. Accordingly, GEL shall not be held liable for the selection of the Third Parties engaged by the Merchant through the Platform for the performance of the Services.

10.2. Through the Platform and on behalf of the Client, GEL submits transportation orders and/or Pickup Point activation requests to Third Parties. The Client expressly acknowledges and agrees that, except in cases of willful misconduct or gross negligence attributable to GEL, GEL shall have no liability whatsoever, whether direct or indirect, in connection with any delay, loss, damage, deterioration, tampering or destruction of goods which, for any reason whatsoever, are in the possession, custody or control of the appointed Third Parties. Accordingly, the Client hereby irrevocably waives any right to claim or recover from GEL any amount whatsoever in respect of such events.

10.3. Without prejudice to the foregoing, in the event of loss, damage, deterioration, tampering or destruction of goods subject to the Services and attributable to the appointed Third Parties, the Client shall be entitled to be subrogated to GEL’s rights and remedies against such Third Parties in respect of any claim for compensation arising from such loss, damage, deterioration, tampering or destruction. In this regard, the Client acknowledges and accepts that any compensation payable by the Third Parties in the event of damage, tampering, theft or loss affecting one or more parcels subject to the Services and arising from acts or omissions attributable to such Third Parties shall, in any event and except in cases of willful misconduct or gross negligence attributable to the relevant Third Party, be limited to the lesser of €1.00 (one Euro) per kilogram of transported and/or stored goods and the actual value of the loss or damage suffered in relation to the relevant document or parcel, plus an amount equal to the fees paid for the Services relating to the damaged, tampered, stolen or lost goods, net of VAT.

10.4. GEL specifies that the Client may, at any time through the Platform, activate a functionality allowing the purchase, for separately quoted fees, of a general “Full Risk” insurance coverage or insurance coverage relating to specific shipments and/or storage services, against the principal risks identified in the insurance policy made available by a leading insurance group. The Client hereby assigns and transfers to GEL any and all rights relating to the collection of insurance proceeds paid under such insurance coverage. GEL shall subsequently transfer the amounts received from the insurer to the final beneficiary entitled thereto.

10.5. At the time of activation of the Services through the Platform, an estimated delivery time may be indicated. Such delivery time shall be deemed purely indicative and shall not constitute a guaranteed delivery commitment. Accordingly, any delay with respect to the estimated delivery time shall not give rise to any claim, remedy, compensation or recourse against GEL by the Merchant.

11.1. These General Terms and Conditions shall become effective as of the date of execution and/or acceptance and shall remain valid and effective for an indefinite term. GEL and the Client may terminate this Agreement at any time, at their sole discretion and without the need to provide any justification, upon ninety (90) days’ prior written notice.

11.2. GEL may terminate this Agreement pursuant to Article 1456 of the Italian Civil Code in the event of any breach and/or non-performance by the Client and/or the Merchant of the obligations set forth under Clauses 5.5 and 9 of these General Terms and Conditions, which GEL and the Client expressly acknowledge to be material obligations. In such cases, GEL shall also be entitled, at its sole discretion, to disable the Platform and/or the Client’s “Account” at any time.

11.3. Upon termination of the Agreement, GEL shall request the relevant Third Parties to return all parcels entrusted to them and still in their custody, if any, and the Third Parties shall not be entitled to exercise any right of retention over such parcels.

11.4. Without prejudice to the term of this Agreement, the Client shall be entitled at any time to disable the integrated Platform and/or to suspend or delete its “Account” profile.

12.1. By executing this Agreement, the Client and GEL expressly consent to the processing of their respective personal data for which they qualify as data subjects, in accordance with Regulation (EU) 2016/679 (GDPR) and Italian Legislative Decree No. 196/2003, as amended from time to time (the “Italian Privacy Code”).

12.2. The Client and GEL mutually represent and warrant that they shall comply with all applicable laws and regulations relating to the processing of the personal data of End Users, including Regulation (EU) 2016/679 (GDPR) and the Italian Privacy Code.

12.3. GEL hereby informs the Client that, for the purposes of performing the Services activated by the Client for the benefit of End Users, it shall process the personal data of such End Users and/or of other individuals operating through the Platform. For such purposes, the Client, also acting under the authority granted by the relevant data controller where required, hereby appoints GEL, pursuant to Article 28 of Regulation (EU) 2016/679 (GDPR), as a data processor in respect of the personal data transmitted for the performance of the Services. The Client, having the necessary authority to do so, further grants GEL a general authorization to appoint sub-processors, including the Third Parties engaged from time to time in the performance of the Services, which may process the End Users’ personal data solely for the purposes of carrying out the Services activated by the Client.

12.4. The Client shall indemnify, defend and hold harmless GEL, including in judicial proceedings, against any and all claims, actions, sanctions, liabilities, costs, expenses or damages arising directly or indirectly from any breach, act or omission by the Client and/or the Merchant in violation of Regulation (EU) 2016/679 (GDPR) and/or the Italian Privacy Code. Where required by applicable law, the Parties shall execute a separate Data Processing Agreement governing the processing of personal data under this Agreement.

13.1. The execution of this Agreement shall not give rise to any contractual or legal relationship between GEL and the Client other than those expressly provided for and governed herein, nor shall it, under any circumstances, create or be construed as creating any agency, employment, quasi-employment, partnership, joint venture or similar relationship between the Parties.

13.2. This Agreement supersedes and replaces any and all prior oral and/or written agreements, negotiations, understandings and arrangements entered into between the Parties with respect to all or any part of the Services.

13.3. This Agreement shall be governed by and construed in accordance with the laws of Italy. Any dispute arising out of, relating to, or in connection with this Agreement shall be subject to the exclusive jurisdiction of the Court of Milan, Italy.

Neither Party shall be liable for any failure or inability to perform its obligations under this Agreement to the extent such failure or inability is caused by a Force Majeure event or by circumstances beyond such Party’s reasonable control and not attributable to such Party. For the avoidance of doubt, should any such event prevent the performance of this Agreement for a period exceeding one (1) month, the other Party shall be entitled to terminate this Agreement by written notice.

15.1. GEL reserves the right to amend these General Terms and Conditions during the term of the contractual relationship, including as a result of technical, operational and/or business requirements arising from time to time.

15.2. Any amendments and additions referred to in the preceding paragraph shall be communicated to the Client through the Platform and/or by fax, registered mail, certified email (PEC) or email, the use of which is hereby expressly accepted by the Client.

15.3. GEL further reserves the right to modify or supplement the technical specifications of the Services published on the Platform. Any such modifications and/or additions shall be communicated and made available through the relevant sections of the Platform.

15.4. Should the Client not intend to accept the amendments referred to in this Article, it shall be entitled to terminate the Agreement in accordance with the provisions of Article 11 above.

15.5. GEL reserves the right to suspend and/or limit the Services, providing prompt notice thereof to the Client, and may agree with the Client on alternative methods for the performance of the relevant Services. GEL further reserves the right to temporarily suspend the operation of the Platform. Without prejudice to the foregoing, GEL shall be entitled to suspend the Services without prior notice in the event of the Client’s failure to pay, in whole or in part, any invoice referred to in Article 5.5 above, or in the event of insufficient funds available in the Client’s Wallet.