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​TERMS AND CONDITIONS

  1. SAAS SERVICES AND SUPPORT

    1. ​1. Subject to the terms of this Agreement, the Company will use commercially reasonable efforts to provide the Customer the Services.

    2. Subject to the terms hereof, the Company will provide the Customer with reasonable technical support services in accordance with the Company's standard practice.

      1. Subject to the terms and conditions of this Agreement, Company hereby grants Customer a limited, worldwide, non-exclusive, non-sublicensable, non-transferable and revocable right and license to remotely access (i.e. on a SaaS basis) and/or use  the Company Services during the Term (as defined below), solely for Customer's internal purposes. 

  2. RESTRICTIONS AND RESPONSIBILITIES

    1. The Customer will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (the “Software”);(ii) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by the Company or authorized within the Services);(iii) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third;(iv) or remove any proprietary notices or labels; (v) provide or permit access to the Services by, or on behalf of, any of Company’s competitors, as determined in Company’s sole discretion and provided to Costumer in writing upon Customer’s request; and (vi) store or transmit any malicious code (i.e., software viruses, Trojan horses, worms, robots, malware, spyware or other computer instructions, devices, or techniques that erase data or programming, 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 Services or the Software.  

    2. The Customer represents, covenants, and warrants that the Customer will use the Services only in compliance with the Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. The Customer hereby agrees to indemnify and hold harmless the Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, and without derogating from Company’s right to terminate this Agreement for any breach hereof, the Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

    3. The Customer shall: (i) act prudently to help prevent the unauthorized use of or access to the Services, and notify Us promptly of any unauthorized use or access of which You become aware; (ii) work with Company to jointly develop and publish a press release within two months following deployment; (iii) participate in regular case studies documenting success (subject to Customer’s approval); (vi) serve as a reference customer where appropriate; and (vii) to the extent required by Company in connection with providing the Services and subject to availability, furnish at no charge to Company’s employees visiting Costumer’s properties for training, onboarding or other meetings with Customer’s staff, including (A) lodging and meals (hotel restaurant, staff cafeteria and room service, exclusive of alcoholic beverages and gratuities) and (B) meeting rooms as may be required. 

    4. The Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  The Customer shall also be responsible for maintaining the security of the Equipment, and files, and for all uses of the Equipment with or without Customer’s knowledge or consent.

  3. CONFIDENTIALITY 

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose non public business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party).  Confidential Information of the Company includes, but is not limited to, non-public information regarding features, functionality and performance of the Service.  The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public not as a result of any act or omission of the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by law or by a governmental authority, provided that, prior to disclosing such information pursuant to this clause, Receiving Party will, if possible and lawful, give prior notice thereof to Disclosing Party and provide Disclosing Party with the opportunity to contest such disclosure; however, such disclosure by law or to a governmental authority shall not derogate from the general confidential nature of such information.  

  1. PROPRIETARY RIGHTS

    1. As between the Parties, Customer is, and shall be, the sole and exclusive owner of all data and information inputted or uploaded to the Service by Customer ("Customer Data”). Customer hereby grants Company and its affiliates a worldwide, non-exclusive, non-assignable (except as provided herein), non-sublicensable (except to Company's subcontractors, if applicable), non-transferable right and license, to access and use the Customer Data for Company's provision of the Services and/or Software. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.  The Customer shall not attempt to register with any authority any trademark or trade name associated with the Service or the Software. If Company receives any feedback (which may consist of questions, comments, suggestions or the like) regarding the Software (collectively, “Feedback”), all rights, including intellectual property rights in such Feedback shall belong exclusively to Company. Customer hereby irrevocably and unconditionally transfers and assigns to Company all intellectual property rights it has in such Feedback and waives any and all moral rights that Customer may have in respect thereto. It is further understood that use of Feedback, if any, may be made by Company at its sole discretion, and that Company in no way shall be obliged to make use of the Feedback.    

    2. Notwithstanding anything to the contrary,  the Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, metadata, aggregated and/or analytics information, intelligence relating to the operation, support, and/or Customer’s use, of the Software and/or information concerning Customer Data and data derived therefrom) (collectively, “Analytics Information”), and  the Company will be free (during and after the Term hereof) to (i) use Analytics Information to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose Analytics Information solely in aggregate or other de-identified form in connection with its business..     

    3. Other than the rights expressly granted herein, nothing in this Agreement shall be construed as granting or conferring upon the Customer, any right by license or otherwise, whether expressed or implied, and all rights not expressly granted to the Customer herein are reserved by the Company.  

    4. The Company undertakes that it will not transfer the terms of this agreement and any other information relating to the agreement with the Customer to any third party, without the Customer prior written consent

  2. Privacy and Data Protection:

    1. Privacy Definitions. In this Paragraph ‎5 the following terms shall have the following meanings: 

  1. “Applicable Privacy Laws” means all applicable international, national, federal, and state data protection and privacy laws, (including re EU Privacy Law as applicable to the processing of Personal Data in the European Union);

  2. “Processor” according to Art. 28 of the Regulation (EU) 679/2016 of the European Parliament and Council of 27 April 2016 (General Data Protection Regulation - “GDPR”) and the terms of the company Data Processing Agreement (“DPA”); 

  3. “EU Privacy Law” means: (aa) prior to 25 May 2018, EU Directive 95/46/EC and any applicable national legislation implementing it; (bb) from 25 May 2018 onwards, EU Regulation 2016/679 (the “General Data Protection Regulation”) and any applicable national legislation made under or pursuant to it; and (cc) EU Directive 2002/58/EC and any applicable national legislation implementing it; in each case as amended or superseded;

  4. “Israeli Privacy Law” means the Israeli Privacy Protection Law, 5741-1981 and the regulations promulgated thereunder, including without limitation, the Protection of Privacy Regulations (Transfer of Data to Databases outside the State's Borders), 5761-2001, all as may be amended from time to time; and 

  5. “Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

  1. Role of the Parties. To perform the services, the company shall process personal data controlled by the customer on behalf of the customer in accordance with this DPA and the instructions of the customer.

  2. Compliance. Each Party, with respect to the Personal Data it processes about End Users (including without limitation through cookies), shall comply with its responsibilities under Applicable Privacy Laws. In particular, each Party shall process End Users’ Personal Data only for purposes that have been properly notified to End Users (in accordance with Paragraph ‎4.4 below) and shall ensure that it has a lawful basis for processing End Users’ Personal Data consistent with the requirements of Applicable Privacy Laws and any necessary consents obtained from End Users.

  3. Transparency. Each Party shall, at all times during the Term, comply with its respective published privacy and cookie policies and disclosures. Each Party shall ensure that its informs the End Users in a legally sufficient manner the Personal Data that it collects, how it uses and shares such Personal Data, and how users and End Users can opt out of such use in accordance with Applicable Privacy Laws. 

  4. Security. Each Party shall implement appropriate technical and organizational security measures to protect End Users’ Personal Data from accidental or unlawful destruction, loss, alteration, and unauthorized disclosure or access, consistent with the requirements of Applicable Privacy Laws.

  5. Cooperation. If either Party receives any inquiry, complaint or correspondence (a “Third Party Notice”) from an individual, regulator, or other third party concerning the processing of End Users’ Personal Data in connection with the Services, it shall promptly inform the other Party and the Parties shall cooperate in good faith and as reasonably necessary to address the requirements of such Third Party Notice.

  6. International Data Transfers. Neither Party shall process (nor permit any third party to process) any Personal Data relating to EU End Users in a territory that is outside of the European Economic Area unless it first implements appropriate safeguards consistent with the requirements of EU Privacy Law to enable such processing to occur lawfully outside of the European Economic Area. In addition, neither Party shall transfer (nor permit any third party to transfer) any Personal Data relating to Israeli End Users in a territory that is outside of the State of Israel, except in accordance with the Israeli Privacy Law, including, without limitation, by requiring the recipient to guarantee in writing that it shall take adequate measures to ensure the privacy of the Israeli data subjects, and that the data received shall not be transferred to any other person or entity, whether in that territory or in any other location.

  1. PAYMENT OF FEES

    1. The Customer will pay the Company the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”).  The Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then-current renewal term, upon thirty (30) days prior notice to the Customer (which may be sent by email). If the Customer believes that the Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to the Company’s customer support department. Any amount not paid when required to be paid hereunder shall accrue interest on a daily basis until paid in full at the lesser of: (a) the rate of one and a half percent (1.5%) per month; or (b) the highest amount permitted by applicable law. 

    2. The Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by the Company thirty (30) days after the mailing date of the invoice. Unpaid amounts may result in an immediate termination of the Service by Company. Without derogating from Company’s right to terminate this Agreement for any breach hereof, the Company reserves the right to suspend Customer’s access to the Services in the event Customer is delinquent in its payment obligations to Company. The Customer shall be responsible for all taxes associated with the Services other than taxes based on the Company’s net income.  

  2. TERM AND TERMINATION

    1. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (each a “Renewal Term” and, if relevant, together with the Initial Term the “Term”), unless either party requests termination in writing (including via e-mail) at least thirty (30) days prior to the end of the then-current term. 

    2. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. 

    3. The Company may, at its sole discretion, terminate this Agreement by written notice if the Customer fails to pay any amount due under this Agreement within seven (7) days after Customer receives written notice of an overdue payment

    4. Upon termination or expiration of this Agreement: (i) Software license granted to Customer  under this Agreement shall expire, and Customer shall discontinue any further use and access thereof; (ii) Customer shall immediately delete and dispose of all copies of the documentation in Customer’s or any of its representatives’ possession or control; and (iii) Company may delete all Customer Data uploaded on the Software without affecting any of Company’s rights to the Analytics Information. If applicable, Customer shall be responsible to download its data from the Software prior to termination of this Agreement.

    5. Provisions intended to survive the termination of this Agreement, including but not limited to Sections 2.1, 3, 4, 7, 8, 9 and 10 . 

  3. WARRANTY AND DISCLAIMER

The Company has no control over the products and services offered by third parties that are recommended to End Users through the Services, or the conduct thereof, and is not a party to any contract entered into between the End User and such third party. Accordingly, the Company disclaims any and all liability arising out of or relating to such contracts with third party providers or the products and services purchased.

The Company shall use commercially reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Company or by third-party providers, or because of other causes beyond the Company’s reasonable control, but the Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. COMPANY WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO PUBLIC NETWORKS OR CUSTOMER'S HOSTING SERVICES. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY DOES NOT WARRANT THE SECURITY OF CUSTOMER’S DATA STORED BY THE COMPANY. HOWEVER, GIVEN THE CONFIDENTIAL NATURE OF CERTAIN OF THIS DATA, COMPANY WILL USE COMMERCIALLY REASONABLE EFFORTS TO SAFEGUARD THE SECURITY OF THIS DATA BY PROTECTING IT IN THE SAME MANNER IT WOULD PROTECT ITS OWN CONFIDENTIAL DATA.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

  1. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, THE COMPANY AND ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL. THE COMBINED AGGREGATE LIABILITY OF COMPANY  AND ALL OF ITS AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.

 

  1. MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Customer agrees that Company may use Customer's name and logo to identify Customer as a customer of Company or user of the Software, on Company's web site, marketing materials or otherwise. This Agreement is not assignable, transferable or sublicensable by the Customer except with the Company’s prior written consent. The Company may transfer and assign any of its rights and obligations under this Agreement without consent.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  Company will be liable for failure or delay in performance of any of its obligations under or in connection with this Agreement arising out of any event or circumstance beyond Company’s reasonable control, including without limitation an Act of God, fire, flood, lightning, war, revolution, act of terrorism, riot, civil commotion, adverse weather condition, adverse traffic condition, strike, lock-out or other industrial action, and failure of supply of power, fuel, transport, equipment, raw materials, or other goods or services. For the avoidance of doubt, any problems relating to cloud hosting of the Software by a third party is beyond the reasonable control of the Company. No agency, partnership, joint venture, or employment is created as a result of this Agreement and the Customer does not have any authority of any kind to bind the Company in any respect whatsoever.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  This Agreement shall be governed by the laws of England & Wales without regard to its conflict of laws provisions. Both Company and Customer submit any dispute arising hereunder to the exclusive jurisdiction of the competent acourts of London, England & Wales.

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