THESE CUSTOMER TERMS AND CONDITIONS (“Terms”) CONSTITUTE A BINDING AGREEMENT BETWEEN YOU (“You” or "Customer") AND STIGG INC., (“Company” or “Stigg”) (EACH, A “Party” AND COLLECTIVELY, THE “Parties”), AND GOVERN YOUR USE OF THE PLATFORM (AS DEFINED BELOW) ON A LIMITED PERSONAL USE BASIS.
BY CLICKING “I AGREE” OR “ACCEPT” (OR OTHER SIMILAR BUTTON), FILLING ANY APPLICABLE FORM, EXECUTING AN ORDER (AS DEFINED BELOW) OR ACCESSING STIGG PLATFORM, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREED TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THESE TERMS.IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO BIND SUCH ENTITY TO THESE TERMS AND IN SUCH CASE ALL REFERENCES TO “YOU” OR "YOUR" HEREINAFTER SHALL INCLUDE AND APPLY TO SUCH ENTITY. IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THESE TERMS, YOU MUST NOT CLICK “I AGREE” OR “ACCEPT” (OR OTHER SIMILAR BUTTON), AND YOU MAY NOT ACCESS OR USE ANY PART OF THE PLATFORM.
THESE TERMS APPLY TO, AND GOVERN, THE EXECUTED ORDERING DOCUMENT (SUCH AS AN ORDER FORM, SALES ORDER, PROPOSAL, OR QUOTE) TO WHICH THEY ARE ATTACHED, HYPERLINKED, OR OTHERWISE INCORPORATED (IF ANY) (THE "Order"). THESE TERMS ARE HEREBY INCORPORATED BY REFERENCE INTO, AND MADE A PART OF, SUCH ORDER. (THESE TERMS AND THE ORDER ARE COLLECTIVELY REFERRED TO AS THE "Agreement"). TO THE EXTENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN A PROVISION IN THESE TERMS AND A PROVISION IN THE ORDER, THE FORMER SHALL PREVAIL, UNLESS THE ORDER SPECIFICALLY STATES OTHERWISE, IN WHICH CASES THE ORDER PREVAILS.
1. DEFINITIONS.
1.1 "Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with a Party, where "control" means owning 50% or more of the voting securities of such entity or the ability to direct managerial decisions or board decisions of such entity.
1.2 "Content" means any text, data, information, reports, files, images, graphics, software code, or other content.
1.3 "Customer Content" means any Content and/or Confidential Information (as defined below) submitted or uploaded to, or transmitted through the Platform, or otherwise provided or made available to Company, by or on behalf of Customer.
1.4 "Company Content" means any Content (excluding Customer Content) appearing on or in, or otherwise provided or made available via, the Platform. For the avoidance of doubt, Company Content also includes Company’s Software Development Kit (“SDK”).
1.5 "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 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.
1.6 "Platform" means the Company's software-as-a-service (SaaS).
1.7 "Sensitive Data" means any (i) categories of data enumerated in Article 9(1) of the European Union's General Data Protection Regulation (Regulation 2016/679, aka the GDPR) or any successor law; (ii) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards ("PCI DSS"); (iii) Nonpublic Personal Information ("NPI") (as defined by the Gramm-Leach-Bliley Act and its implementing rules and regulations) or Personal Health Information (PHI) data (as defined by the Health Insurance Portability and Accountability Act and its implementing rules and regulations); or (iv) any data similar to the foregoing that is protected under foreign or domestic laws.
1.8 "Usage Statistics" means any non-customer-identifying information, data, reporting, suggestions, analyses, and/or intelligence relating to the operation, support, and/or Customer’s use, of the Platform and/or Company Content (such as metadata, aggregated data, analytics, etc.).
1.9 "Users" means Customer's employees who are authorized by Customer to use the Platform, and for whom Customer (or Company, at Customer's request) has supplied a user identification and password for the Platform. Customer shall remain primarily responsible and liable for its Users' compliance with the terms and conditions of this Agreement.
1.10 "Website" means the Company's website currently at https://www.stigg.io/
1.11 "Subscription Scope" means any Platform usage or consumption limitations and parameters specified in an Order.
1.12 "Effective Date" means the date the Order is signed by both Parties, unless the Order itself specifies a different start or effective date.
2. SUBSCRIPTION.
2.1 Subscription. Subject to the terms and conditions of this Agreement (including, without limitation, Customer's payment of all applicable Fees (as defined below)), Company grants Customer a limited, personal, non-exclusive, non-transferable, non-sublicensable right and license, during the Subscription Term (as defined below), to internally access and use the Platform and Company Content (collectively, the "Subscription"). For the avoidance of doubt, it is hereby clarified that (i) the Subscription is subject to the applicable Subscription Scope, and Customer shall not use any technical or other means within, or external to, the Platform to exceed or circumvent the Subscription Scope, and (ii) the Platform is only licensed or provided on a subscription basis (and is not sold) hereunder. Except for the Subscription, Customer is granted no other right or license in or to the Platform or Company Content, and any right not expressly granted under this Agreement is hereby reserved by Company and its licensors. Company may, but is not obligated to, monitor Customer's use of the Platform. Company may, from time to time, modify and replace the features and functionalities (but not material functionalities to which Customer is entitled under the Order, unless it improves the material functionality), as well as the user interface of the Platform. Customer shall be solely responsible for providing all equipment, systems, assets, access, and ancillary services needed to access and use the Platform, for ensuring their compatibility with the Platform, as well as for obtaining (and maintaining) all consents and licenses necessary to exercise Customer's rights under the Subscription.
2.2 SDK. Subject to the terms and conditions of this Agreement, Company hereby grants You, during the Term (as defined below), a limited, non-exclusive, non-sublicensable, non-transferable license to use and install Company’s SDK, solely for Your internal business purposes, or as otherwise agreed in an Order. You further acknowledge and agree that installing the SDK may involve acceptance of terms supplemental to this Agreement.
3. ACCOUNT; DELIVERY AND HOSTING.
3.1 Account. In order to access the Platform, Customer must set up a Platform account ("Account"). Customer shall ensure that all information submitted during the registration process is, and will thereafter remain, complete and accurate. As between Company and Customer, Customer shall be solely responsible and liable for maintaining the confidentiality and security of its Account credentials, as well as for all activities that occur under or in such Account. Customer shall immediately notify Company in writing of any unauthorized access to, or use of, an Account, or any other breach of security. Personal Data (as defined in Company's Privacy Policy available at – https://www.stigg.io/privacy-policy (the "Privacy Policy")), collected by Company in connection with the foregoing, shall be processed in accordance with the then-current Privacy Policy, which is hereby incorporated into this Agreement by reference.
3.2 Data Processing Agreement ("DPA"). To the extent that, in connection with the processing of Customer Content pursuant to this Agreement, a DPA is required, (i) Customer shall request Stigg to provide the Stigg DPA for Customer’s signature; and (ii) Customer shall execute (and deliver to Company the executed copy of) the DPA. In the event Customer fails to deliver an executed version of the DPA to Company, then: (a) to the maximum extent permitted by law, Customer shall be solely and fully responsible and liable for any breach, violation, infringement, and/or processing of such Personal Data without a data processing agreement; (b) in the event of any demand, claim, or proceeding of any kind related to any such breach, violation, or infringement, and/or any demand, claim, or proceeding related to processing of such Personal Data without a data processing agreement, Customer shall defend, hold harmless and indemnify Company and its Affiliates (as well as their respective employees, officers, directors, subcontractors and agents) from and against any and all losses, penalties, fines, damages, liabilities, settlements, costs and expenses, including reasonable attorneys’ fees incurred or suffered by such persons; and (c) any limitations on, or exclusions of, of Customer’s liability under this Agreement shall not apply in connection with the above subparagraphs (a) and (b).
3.3 Delivery and Hosting. The Platform is made available to Customer via https://app.stigg.io. The hosting of the Platform (and related processing) will be provided by a third party cloud hosting provider selected by Company ("Hosting Provider").
4. USAGE RESTRICTIONS
4.1 As a condition to (and except as expressly permitted by the Company) the Subscription, Customer shall not do (or permit or encourage to be done) any of the following Subscription restrictions (in whole or in part): (a) copy, manufacture, "frame" or "mirror" the Platform or Company Content; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Platform or Company Content to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Platform or Company Content; (d) modify, adapt, translate, or create a derivative work of the Platform or Company Content; (e) decompile, disassemble, decrypt, reverse engineer, or extract or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) or internal composition of, the Platform or Company Content; (f) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Platform or Company Content; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Platform or Company Content; (h) use the Platform or Company Content to develop any service or product that is the same as (or substantially similar to), or otherwise competitive with, the Platform or Company Content; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Platform or Company Content or penetrate and/or hack the Platform or the Company Content; (j) employ any hardware, software, device, or technique to pool connections or reduce the number of servers/machines, Users, vendors, or endpoints that directly access or use the Platform or Company Content (sometimes referred to as 'virtualisation', 'multiplexing' or 'pooling'); (k) forge or manipulate identifiers in order to disguise the origin of any Customer Content; (l) take any action that imposes or may impose (as determined in Company's reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Platform or Company Content, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure; or (m) use the Platform or Company Content in connection with any internal performance testing or benchmark studies of which the results are designed or likely to be published in any form or media, or otherwise made available to the public, without Company's prior express written approval, or otherwise disclose or publish such results.
4.3 Customer acknowledges and agrees that the Platform is commercially valuable and proprietary to Company. Company reserves all rights and licenses in and to the Platform not expressly granted to Customer under this Agreement.
4.4 Where Users are authorized by the Customer to access and use the Platform:
4.4.1 Customer shall be responsible for ensuring that any each User is aware of, and fully complies with, the applicable terms of this Agreement as it relates to the use of the Platform, as applicable, on the same basis as applies to the Customer, and that such User has accepted these Terms and agrees to comply with the Subscription; and
4.4.2 Customer shall remain fully liable for any and all acts or omissions by the Users related to the Platform and this Agreement.
4.5 For the avoidance of doubt, and as further detailed herein, the Customer expressly acknowledges and agrees that use of the Platform and services (as described under Section 5 below) is at the Customer's own risk and responsibility and that Company shall bear no responsibility or liability for Customer's or User's use of the Platform and services.
5. SERVICES
5.1 Support Services. Company may, but is not obliged to provide support services under this Agreement, unless otherwise agreed upon by the parties in the Order or in a separate technical support and maintenance services agreement (“SLA”). For the avoidance of doubt, unless specifically indicated in an Order or in a SLA, Company is under no obligation to offer support services free of charge.
5.2 Professional Services. Any professional services mutually agreed to between the Parties shall be set out in the Order. Company shall provide professional services as specified in the Order (if any); otherwise, Company is not obligated to provide any professional services.
6. PAYMENT
6.1 Fees. Customer shall pay Company the fees and other charges set forth in the Order (the "Fees"). The Platform, or certain features in the Platform, may currently be provided for free. However, Fees may apply in the future, as set forth in Section 6.2 below.
6.2 Payment Terms. Except as may be expressly stated otherwise in the Order or these Agreement: (a) all Fees are stated, and are to be paid, in US Dollars; (b) all Fees are payable in advance (except for Fees for overages, which are charged in arrears), and shall be paid within thirty (30) days of receipt of invoice; (c) Company reserves the right to update applicable Fees, or charge Fees for any features that are currently provided free of charge, at any time under this Agreement. Such update of Fees shall come into effect upon seven (7) days prior notice to Customer. Any failure to pay applicable Fees may result in Customer not having access to some or all of the Platform. To the extent the update of Fees are not acceptable to Customer, Customer’s sole remedy shall be to cease the use of the applicable features or the Platform by notifying Company in writing five (5) days after Company's notification; (d) other than as expressly stated otherwise under this Agreement, all payments and payment obligations under this Agreement are non-refundable, and are without any right of set-off or cancellation; (e) 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 week and the highest amount permitted by applicable law; and (f) Company shall be entitled to issue invoices (and any associated reporting) and billing notices via email to the applicable Customer contact email address specified in the Order and/or via a functionality of the Platform.
Without derogating from the generality of the above, the Platform includes an option to pay Company in a self-service manner. If you choose to make a payment via the Platform, we will require sufficient information from you to complete the transaction. Such information could include a credit card number and related account and billing information, invoice related information, and other data required to process the payment. We may also update such data should you grant us permission to bill you or your credit card for recurring charges, such as monthly or other types of periodic payments.
The length of the billing cycle will depend on the Subscription Term. In some cases, the payment date may change, for example if the Customer's Payment Method has not successfully settled, when the Customer change the subscription plan or if the Customer paid Subscription began on a day not contained in a given month.
We use a tool called “Stripe” to process payments and transactions via the Platform on our behalf, which may collect information from you, including personal information, or require you to create a Stripe account, in connection with your payments. Stripe’s services and its ability to use and share information collected by Stripe is governed by the Stripe Connect Platform Agreement, available at: https://stripe.com/us/connect/legal and Stripe’s Privacy Policy, available at: https://stripe.com/us/privacy. You hereby agree to review and be bound by the Stripe Connect Platform Agreement and Stripe’s Privacy Policy and authorize Company to provide your Personal Information to Stripe and Stripe to collect personal information from you in connection with any payments you make via the Platform and/or your Stripe account.
6.3 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), as well as transportation or insurance. Customer must provide a valid tax exemption certificate if claiming a tax exemption. In the event that Customer is required by any law applicable to it 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.
6.4 Incorrect Billing. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than thirty (30) days after receiving the invoice in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company's customer support department. If Customer fails to contact Company within such time, Customer shall be deemed to have waived all claims in connection with the applicable payment and billing.
6.5 Over-Usage Billing. In the event of an Over-Usage (defined below), Company reserves the right to issue an invoice for such Over-Usage at any time during the Term of the Agreement or upon termination or expiration of the Agreement or the applicable Order. The payment terms under this Section 6 shall apply to any issued invoice in accordance with this Section 6.5. "Over-Usage" is defined as any utilization of services beyond the agreed-upon limits outlined in an applicable Order.
6.6 Payment Processing. Customer represents and warrants that all payment and billing information provided is (and will remain) complete and accurate, and Customer has obtained all necessary consents to enable the necessary payment method. If applicable to the payment method, payment of Fees may be processed through a third-party payment processing service (which will receive and process Customer's billing information), and additional terms may apply to such payments. Customer authorizes Company (and/or its designee) to: (a) request and collect payment (and to otherwise take other billing actions, such as refunds) from Customer on a recurring basis; and (b) make any inquiries Company deems necessary, from time to time, to validate Customer's designated payment method or financial information, in order to ensure timely payment of Fees (including, but not limited to, for the purpose of receiving updated payment details from Customer's payment, credit card, or banking account provider – such as, updated expiry date or card number).
7. OWNERSHIP.
7.1 Company Materials. Company (and/or its licensors and suppliers, 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; (b) Company Content; (c) Company's Confidential Information; (d) any feedback, suggestions, or ideas for or about the Platform or Company Content (collectively, "Feedback"); (e) Usage Statistics; and (f) any improvements, derivative works, and/or modifications of/to any of the foregoing, regardless of inventorship or authorship. For the avoidance of doubt, it is acknowledged and agreed that Company (alone and/or together with its Affiliates and service providers) may generate and commercially exploit Usage Statistics, as well as use analyze any deidentified information derived from the Customer Content for Company’s lawful business purposes, including to improve and enhance the Platform, and for other development, diagnostic, and corrective purposes in connection with the services and/or the Platform and any other Company offerings, and nothing in this Agreement shall be deemed to prohibit or otherwise limit such activities. Customer shall facilitate such Usage Statistics and Customer Content by providing Company with all access reasonably requested by Company.
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 and undertakes to do all things reasonably requested by Company (including without limitation executing, filing, and delivering instruments of assignment and recordation), at Company's expense, to perfect such ownership rights.
7.2 Customer Content. As between the Parties, Customer is, and shall be, the sole and exclusive owner of all Customer Content. Customer hereby grants Company a non-exclusive, worldwide, royalty-free license to install, store, host, display, and otherwise use the Customer Content as necessary for performance of the services and not using same for any other purpose, subject to maintaining confidentiality of the Customer Content. 7.2.1 Customer shall ensure that Customer Content shall not include or link to Sensitive Data, and shall inform Company immediately if any Sensitive Data is included in Customer Content or may be accessed by Company.
7.2.2 Customer represents and warrants that: (a) no processing of Customer Content under this Agreement (whether by Company, its Affiliates, or the Hosting Provider) will violate any law or regulation, proprietary right, or privacy right; (b) it has obtained and will maintain all required consents and licenses, and will maintain all ongoing legal bases under relevant privacy laws or regulations (if applicable), necessary to provide, make available, and otherwise expose Customer Content to Company, its Affiliates, and the Hosting Provider; and (c) Customer is solely responsible for the legality, accuracy and quality of Customer Content, such as for ensuring that Customer’s use of the Platform to collect, process, store and transmit Customer Content is compliant with all applicable laws, as well as any and all privacy policies, agreements or other obligations Customer may maintain or enter into with its customers.
7.3 Other than as detailed specifically above neither Party transfers or assigns to the other Party any right, title or interest to its Intellectual Property Rights as a result of this Agreement.
8. CONFIDENTIALITY
8.1 Each Party shall protect the other Party’s Confidential Information (as defined below) from unauthorized use, access or disclosure in the same manner as each Party protects its own Confidential Information, but with no less than a reasonable degree of care. For the avoidance of doubt, disclosures by, to, or between the Parties' respective Affiliates shall also be deemed Confidential Information and be subject to this Agreement. Except as otherwise expressly permitted pursuant to this Agreement, each Party may use the other Party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement, and may disclose such Confidential Information:
8.1.1 solely to its and its Affiliates' employees, lawyers, accountants, professional advisors and contractors ("Representatives") who have a need to know such Confidential Information for the foregoing purposes, and who are bound by terms of confidentiality substantially similar to those set forth herein. Receiving Party shall advise Representatives of the confidential nature of the Confidential Information, and the Receiving Party shall be primarily liable for any breach, acts and/or omissions of its Representatives with respect to the Disclosing Party’s Confidential Information by such Representatives);
8.1.2 as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction ("Legal Requirement"). It is hereby clarified that Receiving Party may disclose Confidential Information to the minimum extent required by a Legal Requirement; provided, however, that before Receiving Party does so, it shall, to the extent legally permitted, use reasonable endeavors to give the Disclosing Party a prompt written notice of such disclosure, and reasonably assist Disclosing Party in seeking a protective order or other appropriate remedy; and/or
8.1.3 as reasonably necessary to comply with any applicable law or regulation.
8.2 Notwithstanding anything to the foregoing: (i) Company shall be entitled to disclose Customer's Confidential Information to Company's Affiliates, as well as to the Hosting Provider and to Company's subcontractors under this Agreement; and (iii) pricing and payment terms under this Agreement are confidential to Company, and Customer shall not disclose such Confidential Information to any third party (except to its professional advisors with a need to know), without Company's prior express written consent.
8.3 “Confidential Information” means any information disclosed by one Party (and/or its Affiliates) ("Disclosing Party") to the other Party (and/or its Affiliates) ("Receiving Party"), regardless of form, whether or not identified as confidential or proprietary, and/or which a reasonable business person would understand to be confidential given the nature of the information and/or the circumstances of disclosure, and includes, but is not limited to, technical data, computer programs and software code (including firmware and source code), ideas, inventions, algorithms, know-how, analyses, specifications, processes, techniques, formulas, designs and drawings, other technology and intellectual property, and information relating to actual or potential customers, suppliers, products, platforms and services. Confidential Information shall not include information that: (A) was already known (without restriction) to the Receiving Party at the time of disclosure by the Disclosing Party; (B) was or is obtained by the Receiving Party from a third party not known by the Receiving Party to be under an obligation of confidentiality with respect to such information; (C) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (D) was or is independently developed by the Receiving Party without the use of the Disclosing Party’s Confidential Information.
8.4 Return and Destruction. Promptly following written request by Disclosing Party at any time and/or upon termination or expiration of this Agreement, Receiving Party shall, as reasonably directed, return, destroy, and/or permanently delete all Confidential Information in its possession or control, and shall thereafter, upon written request, have one of its officers certify in a signed writing compliance with the foregoing. Notwithstanding the foregoing, the Recipient may retain an archival copy of Confidential Information solely to the extent that: (a) such archival copy it is contained in electronic files as part of the Receiving Party’s regular data backup or archiving procedures, and/or (b) such retention is required by any Legal Requirement; and in each of the foregoing cases under paragraphs (a) and (b), provided further that the Receiving shall refrain from accessing or using such Confidential Information, and shall treat such Confidential Information at all times in accordance with the provisions of this Agreement.
9. DISCLAIMERS
9.1 THE PLATFORM (INCLUDING WITHOUT LIMITATION ANY REPORTS, ALERTS OR OUTPUT), COMPANY CONTENT, SERVICES, AS WELL AS ANY OTHER GOODS AND SERVICES PROVIDED OR MADE AVAILABLE BY COMPANY OR ITS AFFILIATES 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 (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 SUPPLIERS AND LICENSORS.
9.2 COMPANY DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION: (A) REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, TIMELINESS, COMPLETENESS, OR QUALITY OF COMPANY MATERIALS; (B) THAT CUSTOMER'S USE OF COMPANY MATERIALS WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; (C) REGARDING THE OPERATION OF ANY CELLULAR NETWORKS, THE PASSING OR TRANSMISSION OF DATA VIA ANY NETWORKS OR THE CLOUD, OR ANY OTHER CELLULAR OR DATA CONNECTIVITY PROBLEMS; OR (D) REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY LAWS, REGULATIONS, OR OTHER GOVERNMENT OR INDUSTRY RULES OR STANDARDS.
9.3 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 HOSTING PROVIDERS OR PUBLIC NETWORKS OR FOR ANY BUGS OR ERRORS IN COMPANY MATERIALS, INCLUDING ERRORS THAT RESULT IN FALSE DETECTION OR FALSE BLOCKING OF PART OF CUSTOMER CONTENT.
9.4 THE PROVISIONS OF THIS SECTION 9 (DISCLAIMERS) AND OF SECTION 10 (LIMITATION OF LIABILITY) BELOW ALLOCATE THE RISK UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
9.5 COMPANY WILL TAKE REASONABLE EFFORTS TO KEEP THE PLATFORM SECURE. COMPANY WILL HAVE NO LIABILITY TO CUSTOMER FOR ANY UNAUTHORIZED ACCESS, COPYING OR USE OF THE CUSTOMER CONTENT AND/OR ANY RESULTING CORRUPTION, DELETION, DESTRUCTION OR LOSS.
10. LIMITATION OF LIABILITY
10.1 EXCEPT FOR BREACHES OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8 (CONFIDENTIALITY), CUSTOMER'S BREACH OF THE SUBSCRIPTION (INCLUDING WITHOUT LIMITATION A BREACH UNDER SECTION 4 (USAGE RESTRICTIONS), AND/OR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, SUPPLIERS, OR LICENSORS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, FOR:
10.1.1 ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE LOSSES OR DAMAGES;
10.1.2 ANY LOSS OF PROFITS, BUSINESS, OPPORTUNITY, REVENUE, CONTRACTS, ANTICIPATED SAVINGS, OR WASTED EXPENDITURE;
10.1.3 ANY LOSS OF, OR DAMAGE OR INTERRUPTION TO, DATA, NETWORKS, INFORMATION SYSTEMS, REPUTATION, OR GOODWILL;
10.1.4 ANY BUGS OR ERRORS IN COMPANY MATERIALS, INCLUDING ERRORS THAT RESULT IN FALSE DETECTIONS; AND/OR
10.1.5 THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
10.2 THE COMBINED AGGREGATE LIABILITY OF COMPANY AND ALL COMPANY AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.
10.3 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), STRICT LIABILITY, MISREPRESENTATION, RESTITUTION, OR OTHERWISE.
11. INDEMNIFICATION
11.1 Company Indemnity. In the event that, during the term of this Agreement and the six (6) month period thereafter, a third party makes or institutes any claim, action, or proceeding against Customer alleging that Customer's authorized access and use of the Platform infringes such third party's copyright or patent (an "Infringement Claim"), Company shall:
11.1.1 at its own expense, defend Customer against the Infringement Claim; and
11.1.2 indemnify and hold harmless Customer for any amount finally awarded against or imposed upon Customer by the court (or otherwise agreed in settlement) under the Infringement Claim (provided, however, that any insurance recoveries and/or indemnity or contribution amounts received by the Customer prior to receipt of indemnification by Company shall reduce the indemnifiable amount to be paid by Company by the amount of such recovery).
Company will have no obligation or liability under this Section 11 (Indemnification) to the extent that the Infringement Claim is based on or results from: (i) a modification or a provision to the Platform not made by Company or made without Company's prior written consent; (ii) use of the Platform not in accordance with the documentation or other Company's instructions; (iii) the combination of the Platform with any third party product or service that does not meet the minimum requirements set forth in the documentation, and/or that has not been pre-approved by the Company; (iv) any Customer instructions or specifications, including any errors by Users at or on behalf of the Customer and/or errors due to requests and/or specifications provided by the Customer, including problems caused by incorrect configuring or a failure to perform the required administrative obligations contained in the documentation or instructions provided by the Company; (v) any computer virus or similar malicious code in the Platform, which has not been introduced into the Platform by the Company; (vi) external reasons unrelated to the Platform, such as, without limiting the generality of the foregoing, Force Majeure (as defined below); and/or (vii) use of a magnetic medium that was exposed to misuse or defaced by the Customer.
Should the Platform (in whole or in part) become, or in Company's opinion be likely to become, the subject of an Infringement Claim, then Customer permits Company, at Company's option and expense, to either: (a) obtain for Customer the right to continue using the Platform (or part thereof); or (b) replace or modify the Platform (or part thereof) so that it's use hereunder becomes non-infringing; provided, however, that if (a) and (b) are not, in Company's opinion, commercially feasible, Company may terminate this Agreement upon written notice to Customer, following which Customer shall be entitled to receive a pro-rated refund of any prepaid Subscription Fees hereunder based remaining period of the Subscription Term (as defined below).
11.2 Customer Indemnity. Customer shall: (a) at its own expense defend Company, its Affiliates and their respective directors, officers, employees and Representatives (each, a "Company Indemnitee") against any third party demand or claim made against a Company Indemnitee resulting from any violation of any term of this Agreement and any Customer's misuse or unauthorized use of any Company Materials and/or for any breach of the Subscription or under Section 4 (Usage Restrictions) above (each, a "Misuse Claim"); and (b) indemnify and hold harmless the Company Indemnitee for any amounts finally awarded against or imposed upon the Company Indemnitee (or otherwise agreed in settlement) under the Misuse Claim, as well as for any out-of-pocket legal expenses (including reasonable attorney's fees) reasonably incurred by Company under the Misuse Claim.
11.3 Indemnity Procedure. As a condition to the foregoing, the indemnified Party agrees: (a) to provide the indemnifying Party with prompt written notice of the Infringement Claim or Misuse Claim, as applicable (the "Claim"); (b) to cede to the indemnifying Party sole control of the defense and settlement of the Claim (except that any settlement shall require the indemnified Party's prior written consent, not to be unreasonably withheld, conditioned or delayed); (c) to provide the indemnifying Party with all information and assistance reasonably requested by it; and (d) not to admit any liability under (or otherwise compromise the defense of) the Claim. The indemnified Party may participate in the defense of the Claim at its own cost and expense.
11.4 Sole Remedy. This Section represents the indemnifying Party's sole obligation and liability, and the indemnified Party's sole remedy, for the Claim.
12. TERM AND TERMINATION
12.1 Term. This Agreement commences on the Effective Date and, unless terminated in accordance with this Agreement, shall continue for the duration of the Subscription Term (defined below).
Renewal. Unless specified otherwise in the Order, upon expiration of the initial Subscription term specified in the Order (the "Initial Subscription Term"): (i) for Customers participating in an annual subscription program (the “Annual Program”), the Subscription shall automatically renew for successive renewal terms of twelve (12) months each, and (ii) for Customers participating in a monthly subscription program (the “Monthly Program”), the Subscription shall automatically renew for successive renewal terms of one month each (each a "Renewal Subscription Term", and together with the Initial Subscription Term, the "Subscription Term"), unless either Party notifies the other Party in writing that it chooses not to renew ("Non-Renewal Notice"); provided, however, that the Non-Renewal Notice is given at least: (i) thirty (30) days prior to the end of the then-current Subscription Term in the Annual Program, and (ii) five (5) days prior to the end of the then-current Subscription Term in the Monthly Program. At the commencement of each Renewal Subscription Term, Company shall be entitled to invoice Customer for the applicable Fees therefor.
12.2 Termination. Either Party can terminate this Agreement as follows:
12.2.1 Termination for Convenience. Company may terminate the Agreement at any time and for no cause upon thirty (30) days prior written notice to Customer. Any pre-paid Fees for the remaining subscription period (following termination date) will be refunded to Customer on a pro-rated basis.
12.2.2 Termination for Cause. Either Party may terminate this Agreement upon written notice to the other Party:
12.3 If the other Party commits a material breach under this Agreement, and fails to cure such breach within forty-five (45) days after receiving written notice from the other Party alleging the breach (except that for payment breaches, the cure period shall be fourteen (14) days); or
12.3.1 Upon the occurrence of any of the following events in respect of such other Party: (i) a receiver is appointed for the other Party or its property, which appointment is not dismissed within sixty (60) days; (ii) the other Party makes a general assignment for the benefit of its creditors; (iii) 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 (iv) the other Party is liquidating, dissolving or ceasing normal business operations.
12.4 Suspension. Company reserves the right to temporarily suspend provision of the Platform: (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 of the Subscription (including, without limitation, a breach under Section 4 (Usage Restrictions)); (c) if Company reasonably determines suspension is necessary to avoid material harm to Company, to its other customers, or to the Platform, including without limitation 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, regulation, or at the request of a governmental entity.
12.5 Effect of Termination; Survival. Upon termination of this Agreement for any reason: (a) the Subscription shall automatically terminate; (b) Customer shall cease all access and use of the Platform (and Company shall be entitled to verify same) and certify in a signed writing that it has done so; and (c) Customer shall pay any outstanding Fees and other charges that accrued as of termination, which shall become immediately due and payable, and, if necessary Company shall issue a final invoice therefor. Customer acknowledges and agrees that following termination it will have no further access to any Customer Content within the Platform, and notwithstanding anything to the contrary, Company may (but shall not be obligated to) delete any Customer Content as may have been stored by Company at any time. Sections 7 (Ownership) through 13 (Miscellaneous) shall survive any termination or expiration of this Agreement, as shall any 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.
13. MISCELLANEOUS
13.1 Entire Agreement. This Agreement (together with its Schedule(s)) represents the entire agreement between 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 Order or other standardized business forms, which purport to supersede, modify or supplement this Agreement. The section 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 e-mailed 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. For the avoidance of doubt, any Order furnished by Company to Customer does not constitute an offer for the supply of good or services.
13.2 Amendment. Company reserves the right to modify this Agreement at any time and it is Customer's responsibility to monitor any such modifications. However, in the event of material modifications, Company will provide a prior written notice to Customer, and Customer shall be entitled to terminate the Agreement or provide a Non-Renewal Notice (as applicable), to the extent such modifications are not acceptable.
13.3 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; Provided, however, that either Party may, upon written notice, assign this Agreement in whole to: (a) an Affiliate; or (b) 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 13.3 (Assignment), this Agreement will bind and inure to the benefit of each Party and its respective successors and assigns. Furthermore, any Company obligation hereunder may be performed (in whole or in part), and any Company right (including invoice and payment rights) or remedy may be exercised (in whole or in part), by an Affiliate of Company.
13.4 Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of 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 located in Tel Aviv, 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.
EXCEPT TO SEEK EQUITABLE RELIEF, PAYMENT OF FEES, OR TO OTHERWISE PROTECT OR ENFORCE A PARTY'S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS, NO ACTION, REGARDLESS OF FORM, UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE DATE ON WHICH THE CORRESPONDING LIABILITY AROSE. Any claims or damages that Customer may have against Company shall only be enforceable against Company, and not any other entity or Company's officers, directors, representatives, or agents.
13.5 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) the Parties agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction (and only to the extent 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.
13.6 Publicity. Company may, during the Subscription Term, use Customer’s name and logo on Company's Website and in its promotional materials to state that Customer is a customer of Company.
13.7 Third Party Content; Third Party Software.
13.7.1. Third Party Content. The Platform may present, or otherwise allow Customer to view, access, link to, and/or interact with, Content from third parties and other sources that are not owned or controlled by Company (such Content, "Third Party Content"). The Platform may also enable Customer to communicate with the related third parties. The display or communication to Customer of such Third Party Content does not (and shall not be construed to) in any way imply, suggest, or constitute any sponsorship, endorsement, or approval by Company of such Third Party Content or third party, nor any affiliation between Company and such third party. Company shall have no obligation or liability of any kind whatsoever for Third Party Content or for the third party's policies, practices, actions, or omissions. If Customer enables or uses Third Party Content with the Platform, Company will allow the Third Party Content providers to access and use Customer Content as required for the interoperation of the Third Party Content and the Platform. Third Party Content is owned by the applicable third party (and/or its licensors, as applicable), and no right, title, or interest in or to Third Party Content is granted or conveyed to Customer and any Third Party Content provider’s use of Customer Content is subject to the applicable agreement between Customer and the Third Party Content provider.
13.7.2. Third Party Software. The Platform may include what is commonly referred to as 'open source' software. Under some of their respective license terms and conditions, Company may be required to provide Customer with notice of the license terms and attribution to the third party, in which case Company may provide Customer with such information (whether via the Platform, via the Website, or otherwise). Notwithstanding anything to the contrary herein, use of the open source software will be subject to the license terms and conditions applicable to such open source software, to the extent required by the applicable licensor (which terms and conditions shall not restrict the license rights granted to Customer hereunder), and to the extent any such license terms and conditions grant Customer rights that are inconsistent with the limited rights granted to Customer in this Agreement, then such rights in the applicable open source license shall take precedence over the rights and restrictions granted in this Agreement, but solely with respect to such open source software. Company will comply with any valid written request submitted by Customer to Company for exercising any rights Customer may have under such license terms and conditions.
13.8 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.
13.9 No Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement (such as Company's Affiliates), there shall be no third-party beneficiaries of or under this Agreement.
13.10 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, franchise, fiduciary, 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.
13.11 Force Majeure. Neither Party shall have any liability, or otherwise be deemed in breach, for any performance (excluding payment obligations) under this Agreement that 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 by the Force Majeure. If and when performance is resumed, all dates specified under this Agreement shall be automatically adjusted to reflect the period of such prevention, interruption, or delay by reason of such 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, or failure of (or delay in) delivery by Company’s suppliers or carriers; (c) invasion, war (declared or undeclared), terrorism, riot, insurrection, 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; (f) major cloud service provider outage of service disruption; (g) prolonged lockdown measures; (h) bank-holiday, bank bail-in/out, bank services disruption; (i) nation-level cybersecurity attack; and/or (j) 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 13.11 (Force Majeure) in connection with any Customer breach of the Subscription and/or of 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.
13.12 Notices. Except as may be specified otherwise in this Agreement, all notices, consents, or other communications provided for in connection with this Agreement shall be in writing, and shall be deemed given upon: (a) personal delivery; (b) the second business day after mailing via either U.S. mail or mailing via registered or certified mail with postage prepaid and return receipt requested; (c) upon delivery confirmation by nationally recognized overnight delivery service; (d) the second business day after sending confirmed by facsimile; (e) the first business day after sending by email.
13.13 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).
13.14 Government Users. If Customer is a U.S. government entity, or this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that the Platform constitutes “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212, DFARS 252.227-7014 and DFARS 227.7202. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Platform shall be as provided in this Agreement. If a government agency needs additional rights, it must negotiate a mutually acceptable signed written addendum to this Agreement specifically granting those rights.
13.15 Anti-Corruption. Customer acknowledges and agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value from any of Company's or its Affiliates' employees, partners, representatives, or agents, in connection with this Agreement.
13.16 Technical Advice. Company shall have no obligation or liability for any technical advice furnished to Customer, including without limitation technical advice with respect to the use of the Platform, all such technical advice being given and accepted at Customer's risk.
13.17 Subpoenas. Nothing in this Agreement prevents Company from disclosing Customer Content to the extent required by law, subpoenas, or court orders, but Company shall use commercially reasonable efforts to notify Customer where permitted to do so.
Last Updated: February 2024