SERVICES AGREEMENT
This Services Agreement, including any of its exhibits, annexes appendixes and order form (collectively, the “Agreement”) constitutes binding terms by and between Uplifted AI Ltd. (“Company”) and the entity executing the corresponding Order Form for the provision of the services (respectively “Customer” and “Order Form”) (each, a “Party” and collectively, the “Parties”). By signing the Order Form, Customer acknowledges these terms and represents that it has fully read and understood, and agrees to be bound by this Agreement (the date of such occurrence being the “Effective Date”). By executing an Order Form that incorporates this Agreement by reference, the parties agree to the terms of this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any Order Form, the terms and conditions of this Agreement shall control unless an Order Form expressly overrules a specified section of this Agreement in which case the exception applies solely to that Order Form. Customer may use the Services (as defined below) subject to the terms below:
WHEREAS, Company is the owner, developer and provider of the Platform (defined below); and
WHEREAS, Customer wishes to use the Platform and receive Services, and Company is willing to grant a license to use the Platform and provide Services, on the terms and conditions set forth in this Agreement; and
NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the sufficiency of which is hereby acknowledged, the Parties agree as follows:
- DEFINITIONS. The following capitalized terms have the meanings set forth below:
- "Applicable Law(s)" means any and all national, state and provisional laws and regulations applicable to the Parties engagement hereunder, including, without limitation, all applicable privacy, data protection, copyright, marketing, contract, export control, anti-corruption and non-bribery laws and regulations.
- "Communication" means an electronic mail (email) sent to an End User by Company on behalf of Customer.
- "Order Form" means the commercial ordering document issued by Company and agreed by Customer for the provision of the License and Services granted under this Agreement.
- "End User" an individual who uses the Platform on behalf of Customer.
- "Content" means visual marketing content related to a Product created on the Platform by an End User, such as rating, reviews or information provided as videos, audio files, text and photographs.
- "End User Compensation" means the compensation which Customer may provide its End User which created Content, such compensation may be provided as a loyalty points, credits, amazon credits or any other form of incentive.
- "Specifications" means the written instructions provided by Customer to Company related to the creation of Content, which shall include information and requests regarding the Product, Content and characteristics of the required End User (such as: age, sex, physical appearance and location).
- "Product" means the product or service sold by Customer, which Customer wishes to create Content about via its End Users which will create Content within the Platform.
- "Documentation" means the Platform's operational guides or similar documentation, as provided to Customer , or as otherwise made available within the Platform. Unless the context requires otherwise, references herein to Platform shall be deemed to include its Documentation.
- "Intellectual Property Rights" means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, whether registered or unregistered, and whether vested, contingent, or future) in and to inventions, discoveries, works of authorship, designs, software, technical information, databases, know-how, mask works, methods, technology, and other intellectual property, and includes but is not limited to patents, copyrights and similar authorship rights, moral (and similar personal) rights, mask work rights, data and database rights, trade secret rights and similar rights in Confidential Information (as defined below) and other non-public information, design rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as: (i) all applications, registrations, renewals, reexaminations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) all goodwill associated with the foregoing.
- "Professional Services" means any additional services which are provided to Customer by Company and are not included within the Platform, such as customization, integration and editing of Content.
- "Services" means the Company's services which enable the End User to create Content via a webpage, and provide such Content to the Customer.
- "Purchased Package" means the volume of Content purchased by Customer to be created on the Platform by its End Users during a monthly period.
- "Subscription Term" means the subscription period specified in the Order Form.
- "Free Plan" means a no-cost version of the Platform with limited features, usage, and support as specified by the Company from time to time.
- "Platform" means the Company web-based software product which enables End Users to create Content.
- "Sensitive Data" means any (i) protected health information regulated by the Health Insurance Portability and Accountability Act (HIPAA) or medical information governed by state healthcare privacy laws; (ii) Social Security numbers, driver’s license numbers or other government-issued identification numbers; (iii) financial information, banking account numbers or passwords, or information regulated by the Gramm-Leach-Bliley Act; (iv) payment card data regulated by the Payment Card Industry Data Security Standards; (v) biometric data regulated by biometric privacy laws; (vi) online account passwords, mother’s maiden name or date of birth, (vii) criminal history, (viii) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation or other information that constitutes “special categories of data” regulated by the GDPR; or (ix) Personal Information of children under 13 years of age regulated by COPPA or under the age of consent for purposes of applicable privacy laws.
- LICENSE
- License Grant. Subject to the terms and conditions of this Agreement, Company grants Customer a limited, worldwide (subject to Section 13.11 (Export Compliance)), non-exclusive, non-transferable (except as permitted hereunder), non-sublicensable (except as permitted hereunder) right and license, during the Term, to permit its End Users to access and use the Platform in order to create Content, all in accordance with the terms of this Agreement, the EULA (as defined below) and the Documentation (the "License").
For the avoidance of doubt: (i) the License is subject to the Purchased Package, and Customer shall ensure that the End Users do not create any Content in access of the Purchased Package, or otherwise use any technical or other means within, or external to, the Platform to exceed or circumvent the Purchased Package, and (ii) the Platform is only licensed (and not sold) hereunder. Any rights not expressly granted herein are hereby reserved by Company and its licensors, and, except for the License, Customer is granted no other right or license to the Platform, whether by implied license, estoppel, exhaustion, operation of law, or otherwise. Customer shall be solely responsible for maintaining all necessary permits and licenses to enable the End Users to use the Platform and create the Content.
- License Restrictions. As a condition to (and except as expressly permitted by) the License, Customer may not, nor permit any person, or entity under its control, nor any third party, (including without limitation, End Users) to directly or indirectly: (i) copy, modify, create derivative works of or distribute any part of the Platform (including by incorporation into its products); (ii) sell, license (or sub-license), lease, assign, transfer, pledge, or share Customer's rights under this Agreement with any third party; (iii) use any “open source” or “copyleft software” in a manner that would require the Company to disclose the source code of the Platform or Agent to any third party; (iv) disclose the results of any testing or benchmarking of the Platform to any third party; (v) disassemble, decompile, reverse engineer or attempt to discover the Platform’s source code or underlying algorithms; (vi) use the Platform and/or Services, or encourage, promote, facilitate or instruct others to use, the Platform and/or Services in a manner that violates or infringes any rights of any third party, or is illegal, harmful or offensive; (vii) promote any Product or other information that may be illegal to sell or promote under any Applicable Law or may reasonably be perceived to be unlawful, inflammatory or offensive, (viii) distribute, publish, send, or facilitate the sending of any inappropriate, inaccurate, misleading, fraudulent or otherwise illegal content or content which infringes intellectual property rights of third parties or their right for privacy; (ix) remove or alter any trademarks or other proprietary notices related to the Platform and/or Services; (x) circumvent, disable or otherwise interfere with security-related features of the Platform or features that enforce use limitations; (xi) export, make available or use the Platform and/or Services in any manner prohibited by applicable laws (including without limitation export control laws); and/or (xii) transmit any malicious code (i.e., software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programing, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system) or other unlawful material in connection with the Platform.
- Free Plan Terms. The Free Plan is provided on an “AS-IS” and “AS-AVAILABLE” basis, without warranties or guarantees of any kind. The Company may modify, suspend, or terminate the Free Plan at its sole discretion, including for inactivity exceeding 60 consecutive days.
- Integration. Customer acknowledges that Company shall perform certain integration activities in order to enable Customer's End User to access and use the Platform and create Content (the "Integration"). Customer shall provide Company with reasonable assistance, information and cooperation, including access to the documentation related to its API, as necessary in order for Company to conduct the Integration, and shall respond to any request by Company to provide such information and assistance in a timely manner.
- Beta Version. Customer hereby acknowledges that the Platform is in a beta state of development and is supplied for evaluation and testing purposes, is not a fully commercial software product, is currently undergoing testing and features and functionality and may not be fully implemented or refined, error free or available at all times. As with any beta version, there may be unresolved issues and Company may not offer full or any technical support for the beta version of the Platform. Customer further acknowledges and agrees that the Platform and any outcomes thereof are provided to Customer on an “as is” and “as available” basis, without any warranties whatsoever concerning the use or performance thereof.
- License Grant. Subject to the terms and conditions of this Agreement, Company grants Customer a limited, worldwide (subject to Section 13.11 (Export Compliance)), non-exclusive, non-transferable (except as permitted hereunder), non-sublicensable (except as permitted hereunder) right and license, during the Term, to permit its End Users to access and use the Platform in order to create Content, all in accordance with the terms of this Agreement, the EULA (as defined below) and the Documentation (the "License").
- PROFESSIONAL SERVICES. Any Professional Services mutually agreed to between the Parties shall be set out in sequential Statements of Work to this Agreement (each, a "SOW"). Professional Services shall be charged in accordance with the fees specified within such SOW. Each SOW shall be deemed incorporated into this Agreement by reference. To the extent of any conflict between this Agreement and a SOW, the former shall prevail, unless and to the extent that the SOW expressly states otherwise.
- END USERS AND CONTENT
- End Users, Communications. Customer will provide Company with Specifications regarding the required Product, End User and Content and access to its CRM systems. Company will contact several potential End Users who have purchased the Product and meet the required Specifications via an email Communication sent directly to the potential End User via Customer's marketing systems. The Communication shall be sent on behalf of Customer and include a link to the Platform and an invitation to access the Platform via the link and create Content regarding the Product. Customer shall obtain all approvals and consents for each End User as required pursuant to Applicable Laws in order to initiate contact with the End User and to send the End User such Communication, and shall refrain from using purchased or rented email lists or sending Communication to non-specific email addresses (such as info@customer.com or do-not-reply@customer.com). Customer shall ensure that each Communication sent to an End User complies with all Applicable Laws and includes an unsubscribe option, and a suitable subject heading as required pursuant to Applicable Laws. Customer shall notify Company if it has received any complaints from End-User related to the Communications and shall promptly comply with any request from a recipient to be removed from Customer's mailing list.
- End User Agreement. Customer hereby acknowledges that in order to use the Platform each End User will be required to approve Company`s End User license agreement which will be made available to each End User within the Platform (the "EULA") and that each such End User must be older than thirteen (13) years old and that if such End User is under the age of eighteen (18), the EULA must be approved by the End User's parent or guardian. The EULA shall include a limited license to use the Platform, use restrictions and a prohibition to infringe or otherwise violate third-party rights, a permission for Customer to use the Content for Customer's marketing activities and representation that the Content created by the End User does not include or link to Sensitive Data.
- Content. The End User may access the Platform via the web link included in the Communication and shall be instructed how to create the Content. Once End User completes creating the Content, the Content shall be sent to Customer, and may be used by Customer for its internal business purposes, such as within its website(s), social media pages, online marketing platforms, presentations, marketing materials, and third-party websites. It is Customer's sole discretion whether and how to use the Content, Company shall not be responsible for the accuracy, content and legality of the Content or for any consequences of Customer's use of the Content. Customer will provide Company with information regarding performance of the Content within the Customer's marketing activities, which may be used by Company to better understand the use, performance and exposure of such Content and improve its Platform and Services. For clarity, said information will not involve any access to or processing of personally identifiable information. Company shall be entitled, in its sole discretion, to edit or remove Content created by an End User which Company reasonably believes to be inaccurate, inappropriate or otherwise not in compliance with the Agreement or Applicable Law.
Customer shall designate a copyright agent and implement a notice and takedown mechanism in compliance with the Digital Millennium Copyright Act (or other comparable Applicable Laws in jurisdictions outside of the United States), and shall comply with any such takedown notice received in respect of the Content, in each case, to the extent required by Applicable Laws.
- Non-Bribery. Customer represents and warrants that it is fully aware of any applicable anti-corruption and non-bribery laws and regulations of any country exercising jurisdiction over the contemplated activities hereunder. Further, in the provision and the performance of its obligations under this Agreement, Customer shall not: (a) perform any action that is prohibited by any anti-corruption laws that may be applicable to the Company and/or Customer; (b) directly or indirectly, make any payment, or offer or transfer anything of value, or agree or promise to make any payment or offer or transfer anything of value, to a government official or government employee, to any political party or any candidate for political office or to any other third party, with the purpose of influencing decisions related to the Customer and/or Company and/or their business in a manner that would violate any anti-corruption law; and (c) retain any government official or government employee in the performance of this Agreement.
- Indemnification. Customer shall defend and indemnify Company, its affiliates, and their respective employees, officers, directors, suppliers, and successors from and against any damages and liabilities, including reasonable attorneys’ fees, incurred by Company in any suit, claim, or proceeding brought against Company by (a) Customer's End User's misuse of the Platform, (b) a third party alleging that the Content infringes intellectual property rights of a third party. Company agrees that it shall, as soon as reasonably practicable, notify Customer in writing of any claim for which it intends to seek indemnification hereunder promptly after becoming aware of such claim.
- End User Compensation. Customer may, but it not required to, offer its End Users who complete the creation of Content with an End User Compensation. The End User Compensations shall be provided directly by Customer to the End User, at Customer's sole discretion and expense. Company shall not be liable towards the End User or any other third party, for the End User Compensation provided, for Customer's failure of delay in providing the End User Compensation, and for any consequences or outcomes related to the End User Compensation. As between the Parties, Customer shall be solely responsible to ensure payment of all applicable taxes related to the End User Compensation, including, without limitation sales, use, value added, import/export, customs, withholding taxes, fees, levies, duties and other governmental charges.
- End Users, Communications. Customer will provide Company with Specifications regarding the required Product, End User and Content and access to its CRM systems. Company will contact several potential End Users who have purchased the Product and meet the required Specifications via an email Communication sent directly to the potential End User via Customer's marketing systems. The Communication shall be sent on behalf of Customer and include a link to the Platform and an invitation to access the Platform via the link and create Content regarding the Product. Customer shall obtain all approvals and consents for each End User as required pursuant to Applicable Laws in order to initiate contact with the End User and to send the End User such Communication, and shall refrain from using purchased or rented email lists or sending Communication to non-specific email addresses (such as info@customer.com or do-not-reply@customer.com). Customer shall ensure that each Communication sent to an End User complies with all Applicable Laws and includes an unsubscribe option, and a suitable subject heading as required pursuant to Applicable Laws. Customer shall notify Company if it has received any complaints from End-User related to the Communications and shall promptly comply with any request from a recipient to be removed from Customer's mailing list.
- PAYMENT
- Purchased Subscriptions. The Fees shall be calculated in accordance with Customer's Purchased Subscription. Each Purchased Package must be used during its applicable monthly period. If, prior to end of the applicable month, Customer uses all Purchased Subscriptions, Customer may purchase additional subscriptions subject to the payment of additional fees. If Customer fails to exploit all Purchased Package during the applicable month Customer cannot transfer its remaining credits to the next month.
- Fees and Payment Terms. Customer shall pay Company the fees specified in the Order Form which shall be calculated in accordance with the Purchased Subscription and paid on a monthly basis, and any other fees or charges specified in the Order Form (collectively, the "Fees"). Unless expressly stated otherwise in the Order Form: (a) all Fees are stated, and are to be paid, in US Dollars; (b) all payments under this Agreement are non-refundable, and are without any right of set-off or cancellation; (c) all Fees are payable, and shall be invoiced, in advance, and shall be paid within thirty (30) days of receipt of invoice; and (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of the rate of one and a half percent (1.5%) per month and the highest amount permitted by Applicable Law.
- Taxes. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon Company's net income. Customer must provide a valid tax exemption certificate if claiming a tax exemption. In the event that Customer is required by any Applicable Law to withhold or deduct taxes for any payment under this Agreement, then the amounts due to Company shall be increased by the amount necessary so that Company receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction.
- Usage Audit. Company shall, from time to time, be entitled to audit Customer's End Users' use of the Platform and use certain tracking tools in order to ensure that such usage does not exceed Purchased Package (a "Usage Audit"), Customer shall facilitate such Usage Audit by providing Company with all access reasonably requested by Company. If a Usage Audit reveals a usage or consumption level above that permitted by the Purchased Package, the Fees will be increased in accordance with the Company's then-current pricing, and Company will invoice (and Customer
will pay) for the increased Fees.
- Suspension. Company reserves right to temporarily suspend provision of Services: (a) if Customer is seven (7) days or more overdue on a payment; (b) if Company deems such suspension necessary as a result of Customer’s breach under Section 2.2 (License Restrictions); (c) if Company reasonably determines suspension is necessary to avoid material harm to Company or its other customers, including if the Platform's cloud infrastructure is experiencing denial of service attacks or other attacks or disruptions outside of Company’s control, or (d) as required by law or at the request of governmental entities.
- Purchased Subscriptions. The Fees shall be calculated in accordance with Customer's Purchased Subscription. Each Purchased Package must be used during its applicable monthly period. If, prior to end of the applicable month, Customer uses all Purchased Subscriptions, Customer may purchase additional subscriptions subject to the payment of additional fees. If Customer fails to exploit all Purchased Package during the applicable month Customer cannot transfer its remaining credits to the next month.
- OWNERSHIP
- Company Intellectual Property. Company (and/or its licensors, as applicable) is, and shall be, the sole and exclusive owner of all right, title and interest (including without limitation all Intellectual Property Rights) in and to: (a) the Platform and all related intellectual property (such as content appearing therein); (b) its Confidential Information; (c) any feedback, suggestions, or ideas for or about the Platform, Services and/or about the creation of the Content (collectively, "Feedback"); (d) any non-Customer-identifying information, data, reporting, suggestions, analyses, know-how obtained or learned and/or intelligence relating to the operation, support, and/or Customer or its End User’s use, of the Platform and/or Content (such as metadata, technical logs, aggregated data, analytics, security findings or discoveries, etc.) (collectively, "Output"), which may be used by Company in order to operate, analyze, improve and support the Platform, Services and/or Content; and (e) any and all improvements, derivative works, and/or modifications of/to any of the foregoing, regardless of inventorship or authorship.
Customer shall make, and hereby irrevocably makes, all assignments and/or waivers necessary or reasonably requested by Company to ensure and/or provide Company (and/or its designee(s)) the ownership rights set forth in this paragraph. Company shall be entitled, from time to time, to modify and replace the features and functionalities (but not material functionalities, unless it improves the material functionality) and user interface of the Platform.
- Content. The Content shall be owned by the End User, Customer hereby acknowledges that according to the license granted by the End User, Company may access, use, and process any Content for the purposes of provision, and improvement, of the Platform and/or Services.
- Company Intellectual Property. Company (and/or its licensors, as applicable) is, and shall be, the sole and exclusive owner of all right, title and interest (including without limitation all Intellectual Property Rights) in and to: (a) the Platform and all related intellectual property (such as content appearing therein); (b) its Confidential Information; (c) any feedback, suggestions, or ideas for or about the Platform, Services and/or about the creation of the Content (collectively, "Feedback"); (d) any non-Customer-identifying information, data, reporting, suggestions, analyses, know-how obtained or learned and/or intelligence relating to the operation, support, and/or Customer or its End User’s use, of the Platform and/or Content (such as metadata, technical logs, aggregated data, analytics, security findings or discoveries, etc.) (collectively, "Output"), which may be used by Company in order to operate, analyze, improve and support the Platform, Services and/or Content; and (e) any and all improvements, derivative works, and/or modifications of/to any of the foregoing, regardless of inventorship or authorship.
- CONFIDENTIALITY. Each Party may have access to certain non-public information of the other Party, in any form or media, including without limitation trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, and any other information that a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). The Documentation shall be considered as Company's Confidential Information hereunder. Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party's Confidential Information from disclosure to a third party. The receiving party’s obligations under this Section 7, with respect to any Confidential Information of the disclosing party, shall not apply to and/or shall terminate if such information: (a) was already lawfully known to the receiving party at the time of disclosure by the disclosing party; (b) was disclosed to the receiving party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the receiving party has become, generally available to the public; or (d) was independently developed by the receiving party without access to, or use of, the disclosing party’s Confidential Information. Neither Party shall use or disclose the Confidential Information of the other Party except for performance of its obligations under this Agreement (“Permitted Use”). The receiving party shall only permit access to the disclosing party's Confidential Information to its respective employees, consultants, affiliates, agents and subcontractors having a need to know such information in connection with the Permitted Use, who either (i) have signed a non-disclosure agreement with the receiving party containing terms at least as restrictive as those contained herein or (ii) are otherwise bound by a duty of confidentiality to the receiving party at least as restrictive as the terms set forth herein. The receiving party will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order or a court of similar judicial or administrative body, provided that it notifies the disclosing Party of such required disclosure to enable disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party.
Notwithstanding anything in this Agreement to the contrary, the pricing and payment terms under the Order Form are confidential to Company, and Customer shall not disclose such Confidential Information to any third party (except to its accountants, lawyers, and potential investors), without Company's prior express written consent.
- WARRANTIES.
- Mutual Warranties. Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate Applicable Law.
- Company Warranties. The Company represents and warrants that, under normal authorized use, the Platform shall substantially perform in conformance with its Documentation. As the Customer’s sole and exclusive remedy and the Company’s sole liability for breach of this warranty, the Company shall use commercially reasonable efforts to repair the nonperformance of the Platform. The warranty set forth shall not apply if the failure of the Platform results from or is otherwise attributable to: (i) modifications to the Platform made by a party other than the Company or its designee; (ii) the Customer's failure to implement software updates provided by the Company specifically to avoid infringement; or (iii) combination or use of the Platform with equipment, devices or software not supplied by the Company or not in accordance with the Documentation. If Company determines that it cannot resolve the defect, Company shall (at its sole option, and at no additional charge) use commercially reasonable efforts to provide a workaround, bug fix or patch, and Customer shall fully cooperate with Company in such efforts. In the event Company is unable to provide a workaround, bug fix or patch within thirty (30) business days of receipt of the warranty breach notice, then, as Company's sole obligation and liability, and as Customer's sole remedy, Customer shall be entitled (exercisable within fifteen (15) days following expiration of the thirty (30) day period) to terminate this Agreement upon written notice to Company and receive a pro-rated refund of any prepaid Fees hereunder based remaining period of the then-current Subscription Term.
- Customer Warranties. Customer warrants and represents that: (a) it shall use of the Services, Platform, and Content in compliance with all Applicable Laws, and shall ensure that the Communications comply with Applicable laws; (b) it has obtained and will maintain all approvals consents and licenses as required by Applicable Laws, and will maintain all ongoing legal bases (if applicable), necessary to create, make available, and otherwise expose Content to Company, and send Communications to the End Users (c) it will use the Content strictly in accordance with Applicable Laws.
- Mutual Warranties. Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate Applicable Law.
- DISCLAIMERS. EXCEPT FOR THE WARRANTY SPECIFIED IN SECTION 8.2, THE PLATFORM, SERVICES, CONTENT, OUTPUT, AS WELL AS ANY OTHER GOODS AND SERVICES PROVIDED OR MADE AVAILABLE BY COMPANY HEREUNDER (COLLECTIVELY, THE "COMPANY MATERIALS") ARE PROVIDED AND MADE AVAILABLE ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL DEFECTS, AND ALL EXPRESS, IMPLIED AND STATUTORY CONDITIONS AND WARRANTIES FOR THE AVOIDANCE OF DOUBT, ANY FREE PLAN SERVICES ARE PROVIDED ENTIRELY "AS IS" AND "AS AVAILABLE," WITH NO WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO UPTIME, PERFORMANCE, OR DATA PRESERVATION. (INCLUDING WITHOUT LIMITATION ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION, NON-INFRINGEMENT, OR QUALITY OF SERVICE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE) ARE HEREBY DISCLAIMED BY COMPANY AND ITS LICENSORS. COMPANY DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION: (A) REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, TIMELINESS, COMPLETENESS, OR QUALITY OF COMPANY MATERIALS, OR ANY DIRECT OR INDIRECT CONSEQUENCE OF USING THE COMPANY MATERIALS; (B) THAT CUSTOMER'S AND ITS END USERS' USE OF COMPANY MATERIALS WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; AND (C) REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY APPLICABLE LAWS OR OTHER GOVERNMENT OR INDUSTRY RULES OR STANDARDS. COMPANY WILL NOT BE LIABLE OR OBLIGATED IN RESPECT OF DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO PUBLIC NETWORKS OR HOSTING PROVIDERS.
- LIMITATION OF LIABILITY
- EXCEPT FOR ANY DAMAGES RESULTING FROM ANY BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS HEREIN, AND/OR CUSTOMER'S MISAPPROPRIATION OR OTHERWISE VIOLATION OF COMPANY'S INTELLECTUAL PROPERTY RIGHTS (INCLUDING MISUSE OF THE LICENSE BY CUSTOMER PURSUANT TO SECTION 2); NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, REPUTATION, GOODWILL OR PROFITS, DATA, OR DATA USE, OR THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
- THE COMBINED AGGREGATE LIABILITY OF COMPANY UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.
- THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION, OR OTHERWISE.
- EXCEPT FOR ANY DAMAGES RESULTING FROM ANY BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS HEREIN, AND/OR CUSTOMER'S MISAPPROPRIATION OR OTHERWISE VIOLATION OF COMPANY'S INTELLECTUAL PROPERTY RIGHTS (INCLUDING MISUSE OF THE LICENSE BY CUSTOMER PURSUANT TO SECTION 2); NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, REPUTATION, GOODWILL OR PROFITS, DATA, OR DATA USE, OR THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
- INDEMNIFICATION
- Company agrees to defend, at its expense, any third party action or suit brought against the Customer alleging that the Platform, when used as permitted under this Agreement, infringes intellectual property rights of a third party (“IP Infringement Claim”); and the Company will pay any damages awarded in a final judgment against the Customer that are attributable to any such claim, provided that (i) the Customer promptly notifies the Company in writing of such claim; and (ii) the Customer grants the Company the sole authority to handle the defense or settlement of any such claim and provides the Company with all reasonable information and assistance, at Company’s expense. The Company will not be bound by any settlement that the Customer enters into without the Company's prior written consent.
- If the Platform becomes, or in the Company's opinion is likely to become, the subject of an IP Infringement Claim, then the Company may, at its sole discretion: (a) procure for the Customer the right to continue using the Platform; (b) replace or modify the Platform to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot be accomplished despite the Company's reasonable efforts, then the Company may terminate this Agreement and if purchased directly from Company shall also provide a refund for any amount pre-paid by Customer for such returned Platform for the remaining unused period of the license.
- Notwithstanding the foregoing, the Company shall have no responsibility for IP Infringement Claims resulting from or based on: (i) modifications to the Platform made by a party other than the Company or its designee; (ii) the Customer's failure to implement software updates provided by the Company specifically to avoid infringement; or (iii) combination or use of the Platform with equipment, devices or software not supplied by the Company or not in accordance with the Documentation.
- Company's combined aggregate liability under this Section 11 (Indemnification) shall not exceed the lower of: (a) ten (10) times the amounts actually paid by Customer to Company under this Agreement; and (b) Five Million US Dollars (US$ 5,000,000). This Section states Company's entire liability, and Customer's exclusive remedy, for claims or alleged or actual infringement.
- TERM AND TERMINATION
- Term. This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue in full force and effect until for the duration of the Subscription Term. Either Party may terminate this Agreement at any time upon 30 days prior written notice to the other Party. It is hereby clarified that in the event of termination by Client according to this section, no refund for fees paid shall be issued.
- Termination for Breach. Each Party may terminate this Agreement immediately upon written notice to the other Party if the other Party commits a material breach under this Agreement and, if curable, fails to cure that breach within thirty (30) days after receipt of written notice specifying the material breach (except that for payment defaults, such cure period will be seven (7) days).
- Termination for Bankruptcy. Each Party may terminate this Agreement upon written notice to the other Party upon the occurrence of any of the following events in respect of such other Party: (a) a receiver is appointed for the other Party or its property, which appointment is not dismissed within sixty (60) days; (b) the other Party makes a general assignment for the benefit of its creditors; (c) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (d) the other Party is liquidating, dissolving or ceasing normal business operations.
- Effect of Termination; Survival. Upon expiration or termination of this Agreement for any reason: (a) the License shall automatically terminate, and if the Agreement is terminated due to Customer's breach Customer may not use any unused Purchased Package, if otherwise terminated Customer may use any unused Purchased Package within thirty (30) days following the effective date of termination; (b) Customer shall ensure that its End Users cease all access and use of the Platform; and (c) Customer shall pay any outstanding Fees and other charges that accrued as of termination, which become immediately due and payable, and, if necessary Company shall issue a final invoice therefor. Sections 6 (Ownership) through 13 (Miscellaneous) (but excluding 8.2 (Company Warranty)) shall survive termination of this Agreement, as shall any right, obligation or provision that is expressly stated to so survive or that ought by its nature to survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.
- MISCELLANEOUS
- Entire Agreement and Amendments. This Agreement (and its Schedules) represents the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the Parties with respect to such subject matter. In entering into this Agreement, neither Party is relying on any representation or statement not expressly specified in this Agreement. Without limiting the generality of the foregoing, this Agreement supersedes the following, each of which shall be deemed rejected, void and of no effect: (i) any shrink-wrap, click-wrap, or similar terms and conditions that accompany, or are included within, the Platform, even if use of the Platform requires an affirmative “acceptance” thereof, and (ii) any terms or conditions (whether printed, hyperlinked, or otherwise) in any purchase order or other standardized business forms, which purport to supersede, modify or supplement this Agreement. This Agreement may only be modified or supplemented by a written instrument duly signed by each Party. The section and subsection headings used in this Agreement are for convenience of reading only. This Agreement may be executed in any number of counterparts (including digitally, electronically scanned and emailed PDF copies, and any similarly signed and electronically or digitally transmitted copies) each of which will be considered an original, but all of which together will constitute one and the same instrument.
- Assignment. This Agreement may not be assigned, in whole or in part, by either Party without the prior express written consent of the other Party; except, however, that either Party may, upon written notice, assign this Agreement in whole to a successor in connection with a merger, consolidation, or acquisition of all or substantially all of the assigning Party's assets or business relating to this Agreement. Any prohibited assignment will be null and void. Subject to the provisions of this Section 13.2 (Assignment), this Agreement will bind and benefit each Party and its respective successors and assigns.
- Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the Israel without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed. Any claim, dispute or controversy between the Parties will be subject to the exclusive jurisdiction and venue of the courts of Israel and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, each Party may seek equitable relief in any court of competent jurisdiction.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such provision will be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such illegality, invalidity or unenforceability), and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
- Publicity. Company may use Customer’s name and logo on Company's website and in its promotional materials to state that Customer is a customer of Company.
- Waiver and Remedies. No failure or delay on the part of either Party in exercising any right or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof, or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing, duly signed by the waiving Party, and will be valid only in the specific instance in which given. Except as may be expressly provided otherwise in this Agreement, no right or remedy conferred upon or reserved by either Party under this Agreement is intended to be, or will be deemed, exclusive of any other right or remedy under this Agreement, at law, or in equity, but will be cumulative of such other rights and remedies.
- Relationship. The relationship of the Parties is solely that of independent contractors, neither Party nor its employees are the servants, agents, or employees of the other, and no exclusivities arise out of this Agreement. Nothing in this Agreement shall be construed to create a relationship of employer and employee, principal and agent, joint venture, partnership, association, or otherwise between the Parties. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party and neither Party will create or attempt to create any obligation, express or implied, on behalf of the other Party.
- No Third Party Beneficiaries. Except as expressly stated otherwise herein, there shall be no third-party beneficiaries of or under this Agreement.
- Force Majeure. If any performance (excluding payment obligations) under this Agreement by either party is prevented, hindered, or delayed by reason of an event of Force Majeure (defined below), the party so affected shall be excused from such performance to the extent that, and for so long as, performance is prevented, interrupted, or delayed thereby, provided that such party so affected shall promptly notify the other party of the occurrence of such event. If and when performance is resumed, all dates specified in this Agreement and/or in any purchase orders accepted pursuant to this Agreement shall be automatically adjusted to reflect the period of such prevention, interruption, or delay by reason of such event of Force Majeure. For purposes of this Agreement, an event of Force Majeure shall be defined as: (a) fire, flood, earthquake, explosion, pandemic or epidemic (or similar regional health crisis), or act of God; (b) strikes, lockouts, picketing, concerted labor action, work stoppages, other labor or industrial disturbances, or shortages of materials or equipment, not the fault of either party; (c) invasion, war (declared or undeclared), terrorism, riot, or civil commotion; (d) an act of governmental or quasi-governmental authorities; (e) failure of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, shortage of adequate power or transportation facilities; and/or (f) any matter beyond the reasonable control of the affected party. Notwithstanding the foregoing, Customer shall not be entitled to use, or rely on, this Section 13.9 (Force Majeure) in connection with any Customer breach of the License and/or Company's Intellectual Property Rights. For the avoidance of doubt, any problems relating to hosting of the Platform by a third party is beyond the reasonable control of Company.
- Notices. All notices or other communications provided for in connection with this Agreement shall be in writing and shall be given in person, by courier, email, or by registered or certified mail, postage prepaid, addressed as set forth above. All notices and other communications delivered in person or by courier service shall be deemed to have been given as of one business day after sending thereof, those given by email shall be deemed to have been received upon receipt of such email, and all notices and other communications sent by registered mail shall be deemed given three (3) days after posting.
- Export Compliance. Customer shall be solely responsible for obtaining all required authorizations and licenses from applicable government authorities under Export Control Laws, in connection with Customer's use of the Platform and its related documentation. Customer represents and warrants that: (a) it is not a resident of (or will use the Platform or such documentation in) a country that the U.S. government has embargoed for use of the Platform or such documentation, nor is an entity named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) its country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address provided to Company. Customer shall not transfer, export, re-export, import, re-import or divert the Platform or such documentation in violation of any Export Control Laws (defined below), and shall not transfer, export, re-export, import, re-import or divert any the Platform or such documentation to Lebanon, Syria, Iran, Iraq, Sudan, Yemen, Cuba, or North Korea (or other countries specifically designated in writing by Company from time to time). In the event of a breach under this Section 13.11 (Export Compliance), Customer agrees to indemnify and hold harmless Company and all Company Affiliates (and their respective directors, officers, and employees) for any fines and/or penalties imposed upon Company or a Company Affiliate (or such persons) as a result of such breach. "Export Control Laws" means all applicable export and re-export control Laws applicable to Customer and/or Company or its Affiliates (such as those of the State of Israel), as well as the United States' Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.
- Expense. Except as expressly stated otherwise in this Agreement, each Party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of this Agreement (and any documents referred to in it).
BY ACCESSING, USING, OR CLICKING 'I AGREE' (OR SIMILAR) TO THIS AGREEMENT, CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT AS OF THE EFFECTIVE DATE.