Standard Terms and Conditions
STANDARD TERMS AND CONDITIONS
This document, known as the Software as a Service Agreement (the “Agreement”), serves as our standard terms and conditions for providing services to our customers. The Agreement is entered into by and between Razor Labs Ltd. (referred to as “Company”) and the party executing this Agreement (referred to as “Customer”) and shall be considered a binding agreement between the Parties, effective as of the date of execution.
In addition to the definitions appearing elsewhere in the Agreement, the following capitalized terms shall have the following meanings:
“Agreement” means this Software As A Service Agreement, together with any Order Form/Invoices or other documents incorporated herein by reference.
“Company” means Razor Labs Ltd., the provider of the services outlined in this Agreement.
“Customer” means any individual or entity who accesses or uses the services provided by the Company.
“Effective Date” means the date stated in the Order Form / Invoices on which this Agreement becomes effective.
“Intellectual Property Rights” means all right, title, and interest in and to the Software, including any and all intellectual, moral and/or industrial property and rights now or hereafter recognized under any applicable law or in equity anywhere in the world, whether registrable or unregistrable, issued or pending, registered or unregistered, including (i) all forms of patents and utility models; (ii) inventions, discoveries, (whether patentable or not); (iii) rights associated with works of authorship, including copyrights and mask works; (iv) trademarks and service marks, trade names, domain name registrations; (v) designs (whether registrable or not), design rights; (vi) database rights; (vii) trade secrets and know how; (viii) all rights to or in connection with confidential or proprietary information; and with respect to the intellectual property included in paragraphs (i) to and including (viii) above – any rights analogous to those mentioned herein; all derivative works and/or any improvements or modifications thereof; and any current or future applications, renewals, extensions, restorations, provisionals, continuations, continuations-in-part, divisions, reexaminations and reissues thereof; the right to apply to any of the above; any license rights with respect to the above received from third-parties; and all of the tangible embodiments thereof;
“Order Form” means any document executed by both Parties, such as Invoice, that references and incorporates this Agreement by reference.
“Parties” means both Company and Customer collectively.
Services. Company provides services for predictive maintenance and improved equipment utilization through a cloud-based software platform named “DataMind AI” which includes the sale and implementation of sensors, related hardware, and all associated services (hereinafter referred to as the “Services”) . Subject to Customer’s compliance with its obligations under this Agreement, the Company shall make the Services available to Customer, for the applicable Term as set forth hereunder. The Company shall use reasonable efforts to ensure that the Services are available to the Customer during the Term, subject to any scheduled or unscheduled maintenance or updates.
Access and Use.
Upon the execution of this Agreement by the Customer, Company shall issue and provide Customer with personal access credentials (the “User IDs”) for Customer’s system administrators and personnel designated to use the Services on its behalf (the “Personnel”). Customer and its Personnel may only access and use the Services through the User IDs issued to them by Company. Customer is solely responsible for maintaining the confidentiality of the User IDs. Any instruction, action or activity occurring through any such User IDs shall be deemed to be provided and/or taken by Customer, and Customer shall be solely responsible for all activities that occur under such User IDs, including for any unauthorized use of such User IDs or any other breach of security, or any related damage or loss.
Customer shall ensure that: (i) the access and use of the Services by Customer shall be by no more than the number of Personnel for which Customer has received User IDs; (ii) any Customer Data (as defined below) is provided in proper format as specified by the relevant documentation provided by Company with respect to the applicable Order Form and Service (the “Documentation”); (iii) its Personnel are fully skilled and familiar with the use and operation of the Services; and (iv) each Service will be used solely in accordance with the applicable Documentation, including with respect to software, equipment and data compatibility.
The Customer acknowledges and agrees that the Services and any information, data, or reports provided through the Services are for informational purposes only and are not intended to replace the Customer’s own judgment or the judgment of its personnel. The Company is not responsible for any actions taken by the Customer, or its personnel based on the information, data, or reports provided through the Services.
Installation of Hardware. The Services shall be provided in accordance with the instructions of the Customer or anyone on its behalf and the Customer.
Sale of Hardware. If the Customer intends to expand the coverage of machines with sensors and related equipment, the Customer has the option to purchase additional sensors and related equipment from the Company, in accordance with the Company’s current price list. Upon full payment, the purchased sensors and related hardware items shall become the exclusive property of the Customer.
Hardware Warranty. The Company procures hardware components from third-party manufacturers, and the warranty for such hardware is subject to the terms and conditions provided by the manufacturer. The Customer acknowledges and agrees that any modifications or tampering with the hardware components, including but not limited to opening the device casing or attempting repairs, may void the manufacturer’s warranty. The Customer shall assume full responsibility for any damage caused to the hardware components as a result of such modifications or tampering, and the Company shall not be liable for any costs or expenses associated with repairing or replacing the hardware components resulting from the Customer’s actions.
Subject to the terms and conditions of this Agreement and Customer compliance herewith, Company hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited license, on an “As-Is” basis during the Term to access and use, and to allow its Personnel to access and use the Services for the sole purpose of this Agreement and to use the Services provided under this license for internal use only.
Sensor Coverage. The Company may provide the Customer with a specified number of sensors as part of the license / Pilot engagement. These sensors and related equipment shall remain the property of the Company at all times. The Customer is strictly prohibited from unauthorized use or transfer of these sensors.
No Implied Rights. The Customer acknowledges that the license granted hereunder conveys no implied rights, whether by estoppel, implication or otherwise, to use any intellectual property rights or other proprietary rights of the Company, except as expressly set forth herein.
Term and Termination
Term. This Agreement shall commence as of the Effective Date set forth under the Order Form / Invoices, and subject to Customer’s compliance herewith, will remain in effect for the term period specified in the applicable documentation (referred to as the “Term”), unless terminated earlier as provided in this Agreement. Upon the expiration of the Term, this Agreement will not automatically renew. The parties may choose to continue the subscription by entering into a new agreement at the Company’s then-current list pricing for a subsequent term period. The duration of each subsequent term period will be determined by the parties at the time of entering into the new agreement.
Termination for Breach. If either Party materially breaches this Agreement, the non-breaching Party may terminate this Agreement upon provision of written notice to the other Party, provided that the breaching Party has failed to cure such breach within thirty (30) days following its receipt of such notice. Company may terminate this Agreement immediately in its sole discretion upon Customer’s breach of Sections 4, 5, 7 or 9 of this Agreement. Customer may terminate this Agreement immediately in its sole discretion upon Company’s breach of Section 9 of this Agreement.
Termination for Bankruptcy. Either Party may terminate this Agreement in its entirety immediately if the other Party (i) becomes insolvent or is unable to meet its debts as they mature, (ii) files a voluntary petition in bankruptcy or seeks reorganization or to effect a plan or other arrangement with creditors, (iii) applies for, consents to or acquiesces in the appointment of any receiver or trustee for all or a substantial part of its property, or if any such receiver or trustee is appointed and not discharged within thirty (30) days after the date of such appointment.
Effects of Termination. Upon expiration or termination of the Agreement for any reason, (i) all rights and licenses granted herein, and any Order Forms executed pursuant hereto, shall terminate immediately; (ii) each Party shall promptly return to the other Party, or destroy and certify the destruction of, all Confidential Information (as defined below) to the other Party; (iii) Customer and its Personnel shall immediately cease to use the Services; (iv) Customer shall remit in full all payments due to Company according to this Agreement and all Order Forms pursuant thereto (and in the event of termination by Company, only such payments accruing prior to the date thereof), and following such final payment, neither Party will be entitled to receive any payment from the other Party; (v) In any case of termination of this agreement by the Customer, the Customer will pay the Company the time value which was invested until termination and damage which results in the resources invested in this agreement, according to the Company’s sole discretion. (vii) the following provisions shall survive the expiration or termination of this Agreement: 3.4, 4, 5.2, 7, 8, 9, 10, 11; and (vi) all other performance obligations of both Parties under this Agreement shall cease.
Proprietary Rights; Privacy
Company Ownership and Permission to Use Content.
Customer acknowledges that DataMind AI was developed independently by the Company and was not developed in the framework of this Agreement. All IP (including, without limitation, all rights, title, and interest in and to DataMind AI and any IP rights related thereto) shall belong exclusively to the Company. Any results, processes, methods, statistical data, profiling, databases, improvements and/or know-how derived, created and/or reduced to practice within the course of the use of DataMind AI, shall vest in and be solely owned by the Company. These Terms &Conditions do not grant the Customer or any third party any right or interest in or to IP (or any part thereof), except as required for (and during) the performance of the agreement. Customer acknowledges that Company and/or its affiliates owns the Services, including all rights related to or arising from the Services, any literary works, text, images, photos, trademarks, service marks, designs, UI, technology, software, trade secrets and any other proprietary materials included and/or used therein, and any and all related content and information that Company provides to Customer through the Services (collectively, the “Content”). This Agreement does not confer to Customer any right of ownership in the Content or Services. Customer acknowledges that subject to Section 4.2, the Services and the Content (excluding Customer Data) including any and all enhancements, modifications, derivatives, emulations of the aforementioned, and any and all rights, including intellectual property rights worldwide in connection therewith, are proprietary in nature and are and shall continue to be owned exclusively by Company and/or its affiliates.
In the event Customer provides Company with any suggestions, comments or other feedback (collectively, the “Feedback”) relating to the Services, whether such Feedback is provided prior to, on or after the Effective Date, such Feedback shall become the sole and exclusive property of Company and/or its affiliates, and Customer hereby irrevocably assigns to Company and/or its affiliates all of its right, title and interest in and to such Feedback.
Customer Data. 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 DataMind AI. During the Term or this Agreement, Customer shall submit certain data and information to Company (the “Customer Data”). All Customer Data is and will remain at all times the property of Customer. Customer hereby grants Company a non-exclusive, right and license to use Customer Data for the purpose of providing Customer with the Services. The Customer grants Company an irrevocable, perpetual, non-transferable, non-sub-licensable, non-exclusive, royalty-free right to use, have used, the Customer Data and any derivative, or data which is included, derived from or based thereon, on for Company’s internal research, development and business purposes for the improvement of its Services and technology.
The Company shall store the Data for a period of two years as of the expiration or termination of this Agreement. After the lapse of the said two years period, the Company may, at its sole discretion, delete all or any part of the Data and the Customer shall have no claim against the Company in connection therewith. Customer acknowledges that Company may retain certain Customer Data for as long as necessary to provide the Services, as well as for legal and archival purposes, and in accordance with applicable laws and regulations. Company will delete or anonymize Customer Data within a reasonable period of time after the termination or expiration of this Agreement, unless otherwise required by applicable laws or regulations.
Compliance. Customer will use the Services pursuant to, and only for the purposes set forth in, this Agreement. Customer will not use, nor will Customer permit any third party, Customer contractor or service provider, Personnel or End User to use the Services for any unlawful purpose, in furtherance of any unlawful purpose or in violation of the terms and conditions of this Agreement. If Company has reasonable grounds to believe that Customer or any third party, Customer contractor or service provider, Personnel or End User is using the Services for any improper purpose or in violation of the terms and conditions of this Agreement, Company may suspend or terminate the Services immediately upon notice to Customer, in addition to all other rights and remedies available to Company in law and equity in connection with such misuse. For the avoidance of doubt, any act or omission by a Customer’s contractor, agent, representative or service provider that would have constituted a breach of any term or condition of this Agreement were it conducted by Customer, shall be deemed a breach of this Agreement by Customer.
Customer will not, directly or indirectly, transmit or permit Personnel or any third parties to transmit, directly or indirectly, to any of Company’s servers any virus, software program or segment of code, or other programming design, instruction, or routine that permits unauthorized access to any Company servers or the Services and/or is intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any of the foregoing or any system, data, or personal information.
Customer will not: (i) breach or attempt to breach the security of any network, servers, data, computers or other hardware or software relating to or used in connection with the Services or belonging to or used or leased by any other customer of Company or any third party that is hosting or interfacing with any part of the Services; or (ii) use or distribute through the Services any software, files, data, or other tools, devices or information designed or reasonably expected to interfere with, infringe upon or compromise the privacy of any entities, the security or use of the Services, or the operations or assets of any other customer or end user of Company or any third party.
Customer will not modify or tamper with the Services in any way. Furthermore, Customer will not, and will not permit any Personnel, End User or third party to, reproduce, copy, emulate, translate, modify, adapt, create derivative works of, distribute, transmit, transfer, republish, reverse engineer, decompile, or otherwise attempt to discover the underlying technology of the Service or any object code, or compile or attempt to compile any object code from any source code, or remove or delete any portion of the Services.
Customer will not use the Services in any context that harms the goodwill or reputation of Company or that may disparage or bring Company into disrepute, including any such use that may be perceived as indecent, illegal, misleading, harmful, abusive, harassing, defamatory or otherwise offensive against End Users, Personnel, Company or any third party.
Customer may not rent, sell, lease, license or otherwise transfer or allow access to, the Services, or any part of the aforementioned, including without limitation via OEM or similar arrangements, or otherwise use the Services for the benefit of a third party, without the prior written consent of Company.
Customer’s Representations and Acknowledgments
Customer hereby represents and warrants that: (i) in performing its obligations and exercising its rights under this Agreement, it will comply (and shall require all the its Personnel to comply) with all applicable Laws; (ii) it is duly organized, validly existing and in good standing under the Laws of the state of its domicile and is in good standing in each other jurisdiction in which such qualification is required by Law; (iii) it has power and authority to transact the business it transacts and proposes to transact and to execute and deliver this Agreement and to perform the obligations under this Agreement; (iv) its entry into this Agreement does not violate or constitute a breach of any agreement to which it is a Party or otherwise bound; and (v) the Services, in whole or in part, shall be used by Customer solely for Customer’s internal business purposes.
Customer acknowledges and agrees that: (i) Company does not monitor or police communications or data transmitted through the Services and that Company shall not be responsible for the content of any such communications or transmissions; (ii) the Services provided hereunder includes predictions based on statistical analysis, such predictions cannot be assumed by nature to be accurate or error-free; and (iii) Company’s Services are still under development and might be modified from time to time at Company’s sole discretion.
Fees and Payment Terms
Fees. In consideration for the Services the Customer shall pay Company the amounts set forth on each Order Form / invoices (the “Fees”). Upon the commencement of each license Renewal Term, the Company reserves the right to increase the Fees at its sole discretion.
Fees do not include out-of-pocket expenses such as travelling and accommodation for site visits, freight to site, or other services including electrical infrastructure required for the installation of the sensors.
Payment Terms and Taxes. All Fees shall be paid within thirty (30) days from the end of the month after receipt of invoice. Any payment not received by the Company within such period shall accrue interest at a rate of one percent (1%) per month, or the highest rate permitted under applicable law, whichever is lower. All Fees indicated in the invoices are non-cancelable for the stated subscription period and sums paid are non-refundable. All Fees are stated and payable in United States Dollars (USD) and are exclusive of , which shall be added to any invoice in accordance with applicable law. Customer will bear and pay all taxes related to or arising from this Agreement, except for those taxes based on Company’s income. Customer may not withhold or set off any Fees due to Company hereunder.
If applicable, services which are not listed in the Order Form / Invoice, such as additional sensors and integration, will be subject to the issuance of a separate price quote.
Disclaimer of Warranties; Limitation of Liability
Disclaimer of Warranties. COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, THE INABILITY TO USE OR OPERATE, OR THE RESULTS OF THE USE OR OPERATION OF THE SERVICES OR ANY PART THEREOF. THE SERVICES, INCLUDING WITHOUT LIMITATION ANY CONTENT, DATA, MATERIALS, REPORTS AND ANY INFORMATION RELATED THERETO, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY REPRESENTATIONS OR WARRANTIES AS TO THE USABILITY, ACCURACY, QUALITY, AVAILABILITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, SECURITY OR EFFECTIVENESS OF ANY CONTENT, DATA, RESULTS, OR OTHER INFORMATION OBTAINED OR GENERATED BY COMPANY AND/OR CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES. THE SERVICES A (OR ANY PART THEREOF) ARE NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SERVICES COULD LEAD TO DEATH, PERSONAL INJURY OR PHYSICAL OR ENVIRONMENTAL DAMAGE, AND CUSTOMER SHALL ASSUME ALL RISK WITH RESPECT THERETO.
Limitation of Liability : TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL THE COMPANY OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES OR CONSULTANTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING ANY FINANCIAL LOSSES) OR LOSS OF PROFIT (EVEN IF THE CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING OUT OF ANY USE, OR THE INABILITY (FOR ANY REASON) TO USE, ANY PART OF DATAMIND AI OR INACCURACIES OR ERRORS OF INFORMATION AS A RESULT OF USING DATAMIND AI, WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. ANY CLAIM FOR ALLEGED DAMAGES AGAINST THE COMPANY MAY BE BROUGHT ONLY WITHIN 12 OF THE DATE THAT SUCH ALLEGED DAMAGE(S) OCCUR (AND IN ANY CASE NO MORE THAN 30 DAYS FOLLOWING THE TERMINATION OF THE PROPOSAL).
Aggregate Liability. IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS, LOSSES OR DAMAGES ARISING OUT OF OR RELA TING TO THIS AGREEMENT OR ANY SERVICES (WHETHER IN CONTRACT, EQUITY, NEGLIGENCE, TORT OR OTHERWISE) EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH THE APPLICABLE CAUSE OF ACTION ARISES.
Indirect Damages. UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFIT OR LOSS RESULTING FROM BUSINESS INTERRUPTION OR LOSS OF DATA, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. COMPANY WILL NOT BE LIABLE FOR ANY DELAY, LOSS OR DAMAGE ATTRIBUTABLE TO ANY SERVICE, PRODUCT OR ACTION OF ANY PERSON OTHER THAN COMPANY AND ITS EMPLOYEES.
Basis of Bargain. Customer acknowledges that Company has set its Fees and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth in this Agreement, and that the limitation and exclusions of liability and disclaimers specified in this Agreement will survive the expiration or termination of this Agreement and apply even if found to have failed of their essential purpose.
Customer Liability. Customer warrants that it is a business user and not a consumer. It accepts full and sole responsibility for developing and implementing a satisfactory full data backup and a disaster recovery capability facilitating complete data recovery including restoration or reconstruction of all lost or altered files data or programs, and the security of all its confidential proprietary and classified information, and all Customer Data including personal data.
Confidentiality. Each Party will hold all Confidential Information of the other Party, whether received prior to, on or after the Effective Date, in strict confidence and shall not directly or indirectly use (other than for the purposes as permitted hereunder), copy, transfer or disclose any such Confidential Information, unless specifically authorized by the other Party in writing. Each Party understands and acknowledges that all items of Confidential Information of the other Party are important, material and confidential trade secrets of the other Party and affect the successful conduct of its business. “Confidential Information” means the confidential and proprietary information of a Party, including any and all ideas, information, concepts, designs, logos, names, know how, techniques, processes, methods, inventions, products, works of authorship, discoveries, developments, source code and object code, other programming code, algorithms, innovations, improvements, Customer Data and personal data, and other proprietary information of a Party of any kind, whether tangible or intangible, whether in written or other form, and its technical information, and operating procedures and production technologies, that is labeled or otherwise designated as confidential, or that by its nature would reasonably be expected to be kept confidential. Without limiting the generality of the above, Company’s Confidential Information shall also include (a) the terms and conditions of this Agreement, and (b) the Services and all Intellectual Property embodied therein and all Intellectual Property rights relating thereto. Notwithstanding the foregoing, information shall not be considered Confidential Information to the extent it: (i) is already known to the receiving Party free of any restriction at the time it is obtained from the other Party; (ii) is subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (iii) becomes publicly available through no wrongful act of either Party; or (iv) is independently developed by one Party without reference to any Confidential Information of the other. If Confidential Information is required to be disclosed by law, regulations, court order or subpoena, the receiving Party shall immediately notify the disclosing Party prior to making such disclosure in order to afford the disclosing Party a reasonable period of time to oppose to such order.
Restrictions and Obligations. The receiving Party shall: (i) use Confidential Information received by it solely to carry out the purposes of this Agreement and for no other purpose whatsoever; (ii) limit access to any Confidential Information received by it only to its employees and/or contractors who have a need to know and only for use in connection with this Agreement; (iii) advise those employees and/or contractors having access to the Confidential Information of the proprietary nature thereof and of the obligations set forth in this Agreement; (iv) take appropriate action by agreement with those employees and/or contractors having access to the Confidential Information to fulfill its obligations under this Agreement; (v) safeguard all Confidential Information received by using a reasonable degree of care, but not less than the degree of care used by it in safeguarding its own similar information or material; and (vi) upon the disclosing Party’s request, return or destroy and certify destruction of all copies, notes, packages, diagrams, computer memory media and all other materials containing any portion of the Confidential Information to the disclosing Party. It is understood and agreed that each Party assumes full liability for a breach by any of its agents, employees or contractors of this Section 9. It is hereby clarified that each Party’s confidentiality and non-use obligations under this Section 9 shall survive the expiration or termination of this Agreement, and remain in effect until each such Confidential Information is no longer deemed as “Confidential Information” as defined herein.
Remedies. The Parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and agree that the non-breaching Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
Indemnification by Customer. Customer will indemnify Company for, and hold Company harmless from and against, any and all Liabilities (as defined herein) or Expenses (as defined herein) at any time due, owing, paid or incurred by, or assessed against, Company arising out of (a) a breach by Customer of this Agreement; or (b) any third party claim related to the collection, storage, transfer or other use of Company Data, Customer’s use of the Services or the Content, except to the extent the claim is solely attributable to the willful misconduct of Company; provided, however, that Company must give Customer prompt notice in writing of the institution of the Proceeding (as defined below), permit Customer to defend the same and give Customer all available information assistance and authority (at Customer’s expense) in connection therewith. Customer, at its discretion, will have control of the defense of any such Proceeding including appeals thereof and all negotiations therefor, including the right to effect the settlement or compromise thereof, provided that (i) no settlement, consent order or consent judgment which involves any admission of any liability or wrongdoing, or any act or omission on the part of Company may be agreed to by Customer without Company’s prior written consent, which shall not be unreasonably withheld or delayed, and (b) Customer shall keep Company informed of the status and progress of such Proceeding, the defense thereof and/or settlement negotiations with respect thereto. “Liabilities” means all liabilities, losses and claims (including judgments, interest, fines, penalties, attorneys’ fees due any other Party, court costs, and amounts to be paid in settlement) reasonably incurred in connection with any Proceeding. “Expenses” includes all attorneys’ fees and costs, retainers, court costs, transcripts, experts’ fees, witness fees, travel expenses, computer costs, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees and all other disbursements or expenses reasonably incurred in connection with asserting or defending claims, and any expenses incurred in the enforcement of Customer’s obligations hereunder. “Proceeding” includes any threatened, pending or completed action, suit, arbitration, mediation, alternate dispute resolution mechanism, investigation, administrative hearing or any other proceeding, whether civil, criminal, administrative or investigative.
Indemnification by Company. Company will indemnify Customer for, and defend and hold Customer harmless from and against, any and all Liabilities or Expenses at any time due, owing, incurred by, or assessed against Customer resulting from a third party claim of an infringement of a patent, trademark, copyright or other legally cognizable intellectual property rights of any such third party by the Services; provided, however, that Customer must give Company prompt notice in writing of the institution of the Proceeding, permit Company to defend the same and give Company all available information assistance and authority in connection therewith. Company will have control of the defense of any such Proceeding including appeals of and all negotiations therefor, including the right to effect the settlement or compromise thereof. In case the Services are subject to any such Proceeding alleged or held to constitute infringement, Company will at its option and expense: (a) procure for Customer the right to continue using the Services, (b) replace the same with materially equivalent or superior non-infringing Services, or (c) modify the same so that it becomes non-infringing without materially impairing or degrading its performance or functionality. Company, however, will not have any liability whatsoever to Customer, third parties or End Users to the extent that any such infringement, or claim thereof, is based upon or arises out of (i) the use of the Services in combination with any software, apparatus or devices not used or supplied by Company if the action would have been avoided by use of other software, apparatus or devices, (ii) the use of the Services in a manner for which the same was neither designated nor contemplated, or (iii) the claimed infringement of any patent in which Customer or any subsidiary or affiliate of Customer has any direct or indirect interest, by license or otherwise. The foregoing states the entire liability of Company for or resulting from such infringement or claim thereof with respect to the Services.
Relationship of the Parties. Nothing in this Agreement shall in any way be construed to constitute either Party as an agent, partner, joint-venturer, employee or representative of the other Party, and both Parties shall remain independent contractors.
Public Relations (PR). The Parties shall consult with each other before issuing any press release or otherwise making any public statements with respect to this Agreement. The Parties agree that Company may publicly refer to Customer as its customer and refer to the existence of this Agreement, and that Company shall be permitted to display the logo of the Customer on Company’s Internet website.
Notices. Any written notice connected with this Agreement will be sufficiently made on the mailing date if sent by registered, certified or first class – postage prepaid mail to the Party at its address set forth on the cover page of this Agreement.
Force Majeure. Each Party to this Agreement will be excused for delays in performing or from its failure to perform hereunder (other than payment delays) to the extent that the delays or failures result from causes beyond the reasonable control of such Party; provided that, in order to be excused from delay or failure to perform, such Party must act diligently to remedy the cause of the delay or failure.
Assignment. This Agreement will be binding upon Company’s or Customer’s successors or assigns, as the case may be. However, neither this Agreement nor any of rights, privileges, duties or obligations under this Agreement may be assigned, sublicensed, sold, mortgaged, pledged or otherwise transferred or encumbered by either party without the prior written consent of the other party, which shall not be unreasonably withheld or delayed. Notwithstanding, Company may freely without the need to obtain Customer’s consent, assign or transfer this Agreement, in whole or in part, by operation of law or otherwise in connection with any merger, sale or acquisition of all or substantially all of Company’s shares or assets.
Governing Law. This Agreement and any claim arising from this Agreement will be governed by and interpreted in accordance with the internal laws of the State of Western Australia, without regard to conflicts of laws and principles. Any and all actions brought to enforce this Agreement or resolve any dispute arising out of this Agreement must be brought exclusively in courts having jurisdiction in Tel- Aviv-Jaffa, Israel and each Party hereby consents to and agrees to submit to the exclusive personal jurisdiction and venue of such courts.
Compliance with Export Regulations. Customer has or shall obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals (if applicable); shall indemnify and hold Company harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or requirements pertaining to the importation, exportation, or use of the technology to be developed or provided herein. Customer shall not directly or indirectly export or re- export (including by transmission) any regulated technology to any country to which such activity is restricted by regulation or statute, without the prior written consent, if required, of the administrator of export laws (e.g., in the U.S., Israel, the Bureau of Export Administration of the U.S. Department of Commerce).
European Union Residents. If Customer resides in the European Union (EU) or if any transfer of information between Customer and the Services is governed by the European Union Data Protection Directive or national laws implementing that Directive, then Customer consents, and shall obtain any consent and approval required by applicable law, to the transfer of such information outside of the European Union to its country and to such other countries as may be contemplated by the features and activities provided via the Services.
Waiver of Breach. No waiver by either Party of any breach of this Agreement will constitute a waiver of any other breach of the same or other provisions of this Agreement. No waiver by either Party will be effective unless made in writing and signed by an authorized representative of that Party.
Severability. If any provision in this Agreement is invalid or unenforceable in any circumstance, its application in any other circumstances and the remaining provisions of this Agreement will not be affected thereby.
Entire Agreement. This Agreement, together with any outstanding Order Forms / Invoices executed pursuant thereto, constitutes the entire agreement and understanding of the Parties relating to the subject matter hereof. This Agreement supersedes all prior written and oral agreements and all other
communications between Company and Customer. Amendments to this Agreement will be effective only if written and signed by Company and Customer.
No Third Party Beneficiaries. Each Party intends that this Agreement will not benefit, or create any right or cause of action in or on behalf of, any person or entity other than Customer and Company.
Interpretation and Priority of Documents. In the case of conflicts or inconsistencies between the terms of this Agreement and any Order Form / Invoices hereto, the terms of this Agreement will prevail, except as specifically stated otherwise. Unless designated as replacing a specific outstanding Order Form, a new Order Form / Invoices will be considered to be in addition to then-outstanding Order Forms / Invoices.
Authority; Counterparts. Customer’s signature is by an authorized representative of Customer and constitutes Customer’s acceptance of this Agreement and its agreement to be bound hereby. This Agreement may be executed and delivered by the Parties in counterparts (each of which will be considered for all purposes an original) and by facsimile or by e-mail transmission in PDF format, and when a counterpart has been executed and delivered by each of the Parties, by facsimile, e-mail in PDF format or otherwise, all such counterparts and facsimiles will together constitute one agreement.
Headings; Interpretation. The Section headings in this Agreement are for identification purposes only and will not affect the interpretation of this Agreement. Unless business days are specified, all references to “days” means calendar days.