CNVRG.IO – END-USER LICENSE AGREEMENT
THIS END-USER LICENSE AGREEMENT (THE “EULA“) FORMS A LEGAL AGREEMENT BETWEEN YOU, EITHER AS AN INDIVIDUAL, COMPANY OR OTHER LEGAL ENTITY (THE “CUSTOMER“) AND THE APPLICABLE CNVRG.IO ENTITY, AS MARKED IN THE ORDER FORM EXECUTED BETWEEN THE PARTIES (THE “COMPANY” OR “CNVRG.IO“, AND THE “ ORDER FORM“, RESPECTIVELY). CNVRG.IO AND THE CUSTOMER SHALL BE REGARDED EACH AS A “PARTY”, AND COLLECTIVELY AS THE “PARTIES”.
PLEASE READ THIS EULA CAREFULLY BEFORE INSTALLING OR USING OUR “CNVRG.IO” PLATFORM. ANY INSTALLATION AND/OR USE OF THE “CNVRG.IO” PLATFORM WITH RESPECT TO THE NUMBER OF USERS AND WORKSTATIONS COVERED IN THE ORDER FORM, INCLUDING ANY RECEIPT OF SUPPORT SERVICES AND ANY SOFTWARE CODE THEREOF AND ANY UPDATES, UPGRADES OR NEW RELEASE THEREOF AND ANY DOCUMENTATION PERTAINING THERETO (COLLECTIVELY, THE “PLATFORM”, AS FURTHER DEFINED BELOW) ARE AND SHALL BE, SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS EULA, UNLESS THE CUSTOMER AND THE COMPANY HAVE EXECUTED A SEPARATE AGREEMENT IN WRITING, SIGNED BY BOTH THE CUSTOMER AND THE COMPANY WHICH EXPRESSLY SUPERSEDES THIS EULA.
BY (I) EXECUTING THE ORDER FORM AND PURCHASING A SUBSCRIPTION TO USE THE PLATFORM; OR (II) DOWNLOADING, INSTALLING, OPERATING OR OTHERWISE USING THE PLATFORM, THE CUSTOMER EXPRESSLY AND EXPLICITLY ACCEPTS THIS EULA AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS ON ITS AND ITS ORGANIZATION’S BEHALF. IF THE CUSTOMER DOES NOT AGREE TO THIS EULA OR IS NOT WILLING TO BE BOUND BY IT, CUSTOMER MAY NOT DOWNLOAD, INSTALL, OPERATE OR OTHERWISE USE THE PLATFORM AND CUSTOMER MUST PROMPTLY UNINSTALL THE PLATFORM, AND ANY PART THEREOF, FROM CUSTOMER’S SYSTEM.
THE FOLLOWING TERMS AND CONDITIONS GOVERN THE CUSTOMER’S USE OF THE PLATFORM:
- The Platform. The Company develops and is the proprietor or licensee of the Platform (including any developments, modifications, improvements, innovations, derivatives, corrections, updates, upgrades, changes, additions, features and/or improvements thereto), which shall be delivered, in object code form, to the Customer, by either physical or electronic means and installed by the Customer on an “on-premise” basis, namely on the Customer’s computer infrastructure or private cloud.
The term “Platform” includes any compilation of data, or visual display resulting from the operation of the Platform, and any associated materials, specifications and Documentation (as defined below).
- License Grant.
- Subject to the terms and conditions of this EULA and the Order Form, and payment of the applicable fees specified in the Order Form, the Company hereby grants Customer, and Customer accepts, a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable and revocable license to use, install and operate the Platform, during the Subscription Term (as such term is defined in the Order Form), solely in binary executable form and for the Customer’s internal business purposes and in the Customer’s facilities, pursuant to the specific use case, number of Named Users and Workstations defined in the Order Form, functionalities and limitations specified in the Order Form (if any) and in accordance with this EULA and the Documentation (as defined below).
The term “Workstation(s)” shall mean endpoint computing devices owned or controlled by the Customer (such as computers, workstations, and servers). The term “Named User(s)” shall mean the personnel who are authorized to use the Platform on behalf of the Customer, and who have opened an account to access the Platform.
- The Platform is licensed, not sold. Other than the rights expressly set forth in Section 2.1 above, no other right or interest whatsoever in or relating to the Platform is transferred or granted to the Customer.
- Without prejudice to any other remedy in law or in equity that the Company may have, in the event of any material breach by the Customer of any of the terms and conditions of this EULA and/or Order Form, the Company shall at any time and with immediate effect, without prior notice to the Customer, be entitled to terminate this EULA and the license(s) to the Customer for the use of the Platform.
- Maintenance and Support.
- During the relevant Subscription Term and in consideration for the full payment of the Subscription Fees (as defined in the Order Form) by the Customer and other restriction set forth in the Order Form (if any), the Company will provide the Customer with (a) support and maintenance services in accordance with the Company’s SLA, attached as Exhibit A hereto, (the “SLA“); and (b) upgrades, modifications or new releases of the Platform. Where the Customer is provided with such upgrades, modifications or new releases, Customer shall take the required measures to ensure that the any part of the Platform is up to date. The Company will not be liable for any damages, errors or malfunctions which result from Customer’s failure to install or implement such upgrades, modifications or new releases.
- Customer may acquire certain services from the Company, as may be offered by it and requested by Customer from time to time, including professional services and training (“Professional Services“), which shall be subject to the terms of this EULA and to additional terms and payment of additional fees, as stipulated in the Order Form. The Company will use commercially reasonable efforts to provide Customer the Professional Services, during the term of this EULA.
- Except as expressly provided by the Order Form, this EULA and the SLA, or as agreed in writing between the Parties, the Company has no obligation to provide.
- Documentation. The Company may make available certain Documentation related to the use, installation, access, deployment or integration of any portion of the Platform. “Documentation” means the Company’s standard user documentation, whether in hard copy, or in any electronic form or other media (generally made available by the Company to its customers), describing the use, features and operation of the Platform. Unless context otherwise requires, the term “Platform” shall include the Documentation.
- Subscription and Consideration.
- The consideration for the license granted hereunder, will be in accordance with the Subscription Fees and payment model specified in the Order Form.
- Unless otherwise stated in the Order Form: (i) the Subscription Fees are billed in advance every thirty (30) days, starting at the Subscription Start Date specified in the Order Form; (ii) Any Subscription Term will renew automatically for successive renewal periods, unless the Customers gives the Company written notice of cancellation, at least sixty (60) days prior to the commencement of the following renewal period, or unless terminated by either Party in accordance with the provisions of this EULA.
- To the extent applicable, if the Customer’s payment information as provided under the Order Form becomes invalid, the Customer’s use of the Platform may be suspended until valid payment information is provided.
- Company reserves the right to modify the Subscription Fees at any time and at its sole discretion. Such pricing changes will NOT affect your already paid-up Subscription Term. Existing Accounts shall receive an email notification of price changes at least 90 days before such change takes place. The price change must be accepted by you via a reply email before the price change is scheduled to be applied. If no written notification of acceptance is received, your account shall be suspended for 30 days (the Customer’s access to the Platform will be stopped). At the end of such 30 days, this EULA will automatically terminate.
- Unless otherwise expressly stated herein, all payments hereunder are quoted and shall be paid in United States Dollars. Payment shall be made without any right or set-off or deduction and are irrevocable and nonrefundable. All invoices are payable within thirty (30) days of the date of the invoice. Any amount not paid when required to be paid hereunder shall accrue interest on a daily basis until paid in full at the lesser of: (i) the rate of one and a half percent (1.5%) per month; or (ii) the highest amount permitted by applicable law.
- All amounts payable under this EULA are exclusive of sales, use, value-added, withholding, and other taxes and duties. Customer will pay all taxes and duties assessed in connection with this EULA by any authority, except for taxes payable on Company’s net income. If any such tax or duty has to be withheld or deducted from any payment under this EULA, Customer shall gross-up the payment under this EULA by such amount as shall ensure that after such withholding or deduction Company shall have received an amount equal to the payment otherwise required.
- Authorized Users. The Customer may not allow the use of and/or access to the Platform by third parties or anyone other than Named Users, which may include only: (i) the Customer’s employees; and (ii) the Customer’s authorized consultants and subcontractors, while such access will be permitted only at the Customer’s facilities/premises. The Customer will ensure that (i) its use of the Platform does not exceed the authorized number of Workstations and Named Users as specified in the Order Form; and (ii) its employees, consultants and subcontractors comply with the applicable terms of this EULA. The Customer shall bear full responsibility for any harm caused to the Company for breach of the terms of this EULA by Customer’s Named Users or other employees, consultants and subcontractors.
- Prohibited Uses. Except as specifically permitted herein, without the prior written consent of the Company, Customer must not, and shall not allow anyone on its behalf, or any other third party to, directly or indirectly: (i) modify, incorporate into or with other software, or create a derivative work of any part of the Platform; (ii) sell, license (or sub-license), lease, assign, transfer, pledge, or share Customer’s rights under this EULA with or to anyone else; (iii) copy, distribute or reproduce the Platform for the benefit of third parties; (iv) disclose the results of any testing or benchmarking of the Platform to any third party, use such results for Customer’s own competing software development activities or use the Platform in order to build or support, and/or assist a third party in building or supporting, products or services which are competitive to Company’s business; (v) disassemble, decompile, reverse engineer, revise or enhance the Platform or attempt to discover the Platform’s source code or its underlying ideas or algorithms; (vi) use the Platform in a manner that violates or infringes rights of any third party, including but not limited to, right of privacy, proprietary rights or intellectual property rights, including without limitation copyright, trademarks, designs, patents and trade secrets; (vii) remove or otherwise modify any of the Company’s trademarks, logos, copyrights, notices or other proprietary notices or indicia, if any, fixed, incorporated, included or attached to the Platform nor copy the Documentation or any written materials accompanying the Platform; (ix) use the Platform for purposes other than for the regular and standard purposes as described in the Documentation or other than in compliance with the terms of this EULA; (x) host, outsource, display, or commercially exploit the Platform; (xi) circumvent, interfere with or remove any device metering mechanism which is part of the Platform, or assist any third party to do so; (xii) circumvent, disable or otherwise interfere with security-related features of the Platform or features that enforce limitations on its use; (xiii) use any automated means to access the Platform; (xiv) violate or abuse password protections governing access to the Platform; (xvii) allow any third party other than those stipulated under Section 7 above to use the Platform; (xviii) interfere or attempt to interfere with the integrity or proper working of the Platform; (xix) access, store, distribute, or transmit any malicious code (i.e., software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system), or unlawful, threatening, obscene or infringing material; and/or (xx) use the Platform in any other unlawful manner or in any manner not expressly authorized by this EULA or the Order Form.
- Lawful Use. The Customer hereby declared and agreed that it shall only use the Platform in a manner that complies with all applicable laws in the jurisdiction in which Customer uses the Platform, including, but not limited to, applicable restrictions concerning the protection of privacy and intellectual property including copyrights and any other intellectual property rights.
- Customer Account. In order to use the Platform, Customer’s Named Users must create an account by supplying a few personal details, including: username, email address and password. In order to protect the security of the Named Users’ personal information and Customer’s data available via the Platform to the greatest extent possible, the Customer and the Named Users must safeguard and not disclose their account log-in details and must supervise the use of such account. The Customer is solely and fully responsible for maintaining the confidentiality of the passwords and any activity that occurs within its Named Users’ accounts and for safeguarding its Named Users’ username and password.
- Affiliates. If the Customer purchases the right to use the Platform by its Affiliate (as defined below), the Customer shall: (i) provide each such Affiliate with a copy of this EULA and the Order Form; (ii) ensure that each such Affiliate complies with the terms and conditions therein and of the Order Form; and (iii) be responsible for any breach of this EULA and conditions by any such Affiliate. For purposes of this EULA, “Affiliate” means any entity that Controls, is Controlled by, or is under common Control with you, where “Control” means ownership, directly or indirectly, of 50% or more of the voting interest.
- Remote Access.
- Customers may receive certain remote support services, as detailed under Section 3 above, by providing the Company with remote access to their computer networks and Workstations where the Platform is installed (“Remote Support Services“). By providing the Company with such remote access, the Customer understands that it provides the Company and the Company’s technical support personnel with full access to and control of the applicable networks and Workstations, as well as the content stored therein. The Company will then be able to transfer files without additional authorization from the Customer and the Customer accepts responsibility for any changes made to the networks and/or applicable Workstations’ content or system settings. By accepting this EULA, the Customer acknowledges that remote access may in some cases result in data loss and/or software corruption, therefore it is the Customer’s responsibility to backup any data on the applicable networks and/or Workstations before accepting remote support services from the Company.
- The Customer agrees and acknowledges that, to the extent that the during the provision of Remote Support Services the Company and/or the Company’s technical support personnel will receive access to personal data (as such term is defined under applicable privacy laws, hereinafter: “Customer’s Personal Data“) or will otherwise be required to process personal data, for any reason, Customer hereby instructs Company (and authorizes Company to instruct its sub-processors) to: (i) process Customer’s Personal Data as reasonably necessary for the provision of the Remote Support Services and any other personal data processing performed hereunder; and (ii) transfer such Customer’s Personal Data to jurisdictions other than those of the Customer’s operations (including, where applicable, outside the EEA) in accordance with applicable law. Company undertakes with respect to Customer’s Personal Data to: (i) take appropriate technical and organizational measures to ensure a level of security appropriate to the processing of Customer’s Personal Data; (ii) ensure that all individuals who engage in the processing of Customer’s Personal Data on its behalf are subject to confidentiality undertakings; (iii) assist Customer in exercising data subjects’ rights under applicable law; (iv) inform Customer without undue delay of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored or otherwise processed by the Company on behalf of the Customer; and (iv) either delete, anonymize or return all Customer’s Personal Data to Customer upon termination of the Subscription Term. Customer hereby authorizes Company to appoint further sub-processors, as necessary for the personal data processing activities under this EULA. Customer warrants and undertakes that Customer’s Personal Data shall be collected, processed and transferred to the Company in accordance with applicable laws.
- Ownership of the Platform. The Platform is not for sale and is and shall remain Company’s sole property. All right, title, and interest, including any Intellectual Property Rights (as defined below) evidenced by or embodied in, attached, connected, and/or related to the Platform and any and all derivative works thereof are and shall remain owned solely by Company or its licensors. Nothing herein constitutes a waiver of the Company’s Intellectual Property Rights under any law. “Intellectual Property Rights” means: (i) patents and patent applications throughout the world, including all reissues, divisions, continuations, continuations-in-part, extensions, renewals, and re-examinations of any of the foregoing, all whether or not registered or capable of being registered; (ii) common law and statutory trade secrets and all other confidential or proprietary or useful information that has independent value, and all know-how, in each case whether or not reduced to a writing or other tangible form; (iii) all copyrights, whether arising under statutory or common law, whether registered or not; (iv) all trademarks, trade names, corporate names, company names, trade styles, service marks, certification marks, collective marks, logos, and other source of business identifiers, whether registered or not; (v) moral rights in those jurisdictions where such rights are recognized; (vi) any rights in source code, object code, mask works, databases, algorithms, formulae and processes; and (vii) all other intellectual property and proprietary rights, and all rights corresponding to the foregoing throughout the world.
- Work Products. The Company shall remain at all times the sole and exclusive owner of any and all right, title and interest in and to the work product, materials, discoveries, inventions, designs, finding, discoveries, inventions, improvements, know-how, information, drawings, reports, developments, procedures, other software developments and any modification and enhancement of the foregoing, including any Intellectual Property Rights, arising out of or associated therewith (all whether or not patentable or registerable), that result from, or are suggested, created, developed, conceived, reduced to practice, discovered, invented or made by the Company or any of its personnel (whether solely or jointly with others) during the Term in connection with and/or which result from any Professional Services (“Work Product(s)”).
- Feedback. If Customer contacts Company with feedback data (e.g., questions, comments, suggestions or the like) regarding the Platform (collectively, “Feedback”), such Feedback shall be deemed to be non-confidential, and the Company shall have a non-exclusive, royalty-free, worldwide, perpetual license to use or incorporate any such Feedback into the Platform and/or any of its current or future products or services (without the Customer’s approval and without further consideration).
- Protection of Rights. The Customer agrees to promptly notify the Company in the event that the Customer becomes aware of any infringement of the Company’s Intellectual Property Rights (as defined below) in the Platform. The Company shall exclusively have the right, in its sole discretion, to prosecute lawsuits against any party for infringement of the rights of the Company in the Platform. The Customer agrees to fully cooperate with the Company, at the latter’s expense, in the prosecution of any such suit.
- As between the parties, all Customer’s data (including Customer’s Personal Data) used by the Customer in the context of or uploaded by the Customer to the Platform, and all intellectual property rights therein shall be solely owned by Customer.
- The Company may collect, disclose, publish and use any anonymous and non-identifiable information, such as performance metrics, derived from the use of the Platform, in order to provide and improve Company’s programs and services, including the performance of the Platform, and for any other legitimate business purposes. The Company shall remain the exclusive owner of such information.
- Third Party Components. The Platform may use or include third party software, files and components that are subject to open source and third-party license terms (“Third-Party Components“). The Customer’s right to use such Third-Party Components as part of, or in connection with, the Platform is subject to any applicable acknowledgements and license terms accompanying such Third-Party Components, contained therein or related thereto. If there is a conflict between the licensing terms of such Third-Party Components and this EULA, the licensing terms of the Third-Party Components shall prevail in connection with the related Third-Party Components. Such Third-Party Components are provided on an “AS IS” basis without any warranty of any kind and shall be subject to any and all limitations and conditions required by such third parties. Under no circumstances shall the Platform (except for the Third- Party Components contained therein) be deemed to be “open source” or “publicly available” software. For any questions or requests related to Third Party Components, please contact us at email@example.com.
- Confidentiality. Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, whether written or oral, and any such other information that, regardless of the manner in which it is furnished and given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party’s Confidential Information from disclosure to a third party. Neither Party shall use or disclose the Confidential Information of the other Party except as expressly permitted under THIS EULA or by applicable law. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party. For the avoidance of doubt, the Documentation shall be considered as Confidential Information hereunder.
- Changes to the Platform. The Company may change the Platform’s layout, form and design and the availability of certain content, functions or features from time to time without notice; provided, however, that the Company will notify the Customer of any material changes to the Platform which are likely to affect its ability to use the Platform.
- Reference Customer. The Customer agrees that the Company may identify it as a user of the Platform and use your trademark and/or logo (i) in sales presentations, promotional/marketing materials, and press releases, and (ii) in order to develop a brief customer profile for use by the Company on its website and other promotional channels for promotional purposes.
- WARRANTIES, LIABILITY AND INDEMNIFICATION
- Each Party represents and warrants that (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and (b) the execution and performance of this EULA will not conflict with or violate any provision of any applicable law.
- The Company represents and warrants that: (i) it has and will have all rights, titles, licenses, intellectual property, permissions and approvals necessary in connection with license(s) granted hereunder; and (ii) the Platform licensed hereunder, nor the provision or utilization thereof as contemplated under this EULA, do or will infringe, violate, trespass or in any manner contravene or breach or constitute the unauthorized use or misappropriation of any Intellectual Property Rights of any third party. ;
- THE CUSTOMER ACKNOWLEDGES, ACCEPTS AND AGREES THAT NO SOFTWARE IS ERROR-FREE AND THAT THE CUSTOMER IS ADVISED TO BACK UP THE COMPUTERS/DEVICES/WORKSTATIONS ON WHICH THE PLATFORM IS INSTALLED WITH THE FREQUENCY AND RELIABILITY SUITABLE FOR IT.
- WARRANTY DISCLAIMER. OTHER THAN AS EXPLICITLY STATED IN THIS EULA, TO THE EXTENT PERMITTED BY APPLICABLE LAW, (A) THE PLATFORM AND/OR ANY WORK PRODUCT IS PROVIDED ON AN “AS IS” BASIS. COMPANY DOES NOT WARRANT THAT THE PLATFORM AND/OR ANY WORK PRODUCT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE PLATFORM’S AND/OR ANY WORK PRODUCT’S OPERATION WILL BE SECURED AT ALL TIMES, UNINTERRUPTED, ERROR-FREE, FREE OF VIRUSES, BUGS, WORMS, OTHER HARMFUL COMPONENTS OR OTHER PLATFORM LIMITATIONS; (B) COMPANY HEREBY DISCLAIMS ALL EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, NON-INTERFERENCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY AND RELIABILITY OF THE RESULTS AND OTHER DATA PRODUCED BY USE OF THE PLATFORM AND/OR ANY WORK PRODUCT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
- LIMITATION OF LIABILITY. THE COMPANY AND ITS LICENSORS AND AFFILIATES SHALL NOT BE LIABLE WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO, ANY LOSS OR DAMAGE TO BUSINESS EARNINGS, LOST PROFITS OR GOODWILL AND LOST OR DAMAGED DATA OR DOCUMENTATION), SUFFERED BY ANY PERSON, INCLUDING THOSE ARISING FROM, AND/OR RELATED TO, ANY USE OF OR INABILITY TO USE THE PLATFORM AND/OR ANY WORK PRODUCT, THE RESULTS AND CONSEQUENCES OF USE OF THE PLATFORM AND/OR ANY WORK PRODUCT AND THE ACCURACY OF SUCH RESULTS AND THEIR RELIABILITY, EVEN IF ANY PERSON OR PARTY HERETO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- IN ANY CASE, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, IF THE COMPANY, ITS LICENSORS AND/OR AFFILIATES, ARE FOUND TO BE LIABLE BY A FINAL JUDICIAL RULING THEN THEIR LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY FOR ALL DAMAGES OR LOSSES WHATSOEVER ARISING HEREUNDER OR IN CONNECTION WITH THE CUSTOMER’S USE OR INABILITY TO USE THE PLATFORM AND/OR ANY WORK PRODUCT, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE HIGHER OF USD$25,000 OR THE SUM ACTUALLY PAID TO THE COMPANY UNDER THIS EULA, DURING THE TWELVE (12) MONTHS’ PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE.
- Remedy. In the event that the Platform (and/or use thereof) is held by a court of competent jurisdiction to constitute an infringement, the Company shall, at its sole discretion, do one of the following: (i) procure for the Customer the right to continue use of the Platform, (ii) provide a modification to the Platform so that its use becomes non-infringing, (iii) replace the Platform with software that is substantially similar in functionality and performance or (iv) if none of the foregoing alternatives is reasonably available to the Company, the Company shall negotiate with the Customer another applicable remedy in good faith.
- Indemnity. The Customer agrees to defend, indemnify and hold harmless the Company, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney’s fees) arising from (i) the Customer’s breach of third party’s right (including Intellectual Property Rights) in connection with the Customer’s use of the Platform; and/or (ii) any unauthorized use of the Platform under this EULA, including, without limitation, any breach of the “Prohibited Uses” under Section 7 above.
- Term and Termination.
- Term. The term of this EULA commences on the Subscription Start Date stipulated in the Order Form and shall remain in force and effect during the Trial Period and Initial Term (as defined in the Order Form). Thereafter, this EULA shall be renewed automatically for successive Subscription Terms, unless the Customer gives written notice of cancellation to the Company at least three 30 days’ prior to the end of each Subscription Term, or unless terminated by either Party in accordance with the provisions of this Section (collectively, the “Term“).
- The Parties may terminate this EULA or a specific Order Form on the following grounds: (i) termination by mutual written consent; (ii) by either Party upon written notice to the other Party if the other Party commits a material breach of this Agreement and fails to cure or remedy such breach within thirty (30) days after receiving written notice of such breach; or (iii) either Party may terminate this EULA upon written notice to the other Party in the event that one or more of the following events occur(s): (a) appointment of a trustee or receiver for all or any part of the assets of the other Party; (b) insolvency or bankruptcy of the other Party; (c) a general assignment by the other Party for the benefit of creditor(s); or (d) dissolution or liquidation of the other Party.
- Upon expiration of the Subscription Term or termination of this EULA: (i) all licenses granted to Customer under this EULA shall expire, and Customer shall discontinue all further use of the Platform and delete any copies under its control; and (ii) all copies of the Documentation in the Customer’s possession will be deleted. The provisions of this EULA that, by their nature and content, must survive the termination of this EULA in order to achieve the fundamental purposes of this EULA shall so survive. Termination of this EULA shall not limit Company from pursuing any other remedies available to it under the applicable law.
- Miscellaneous. This EULA represents the complete agreement concerning the subject matter hereof and may be amended only by a written agreement executed by both Parties. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any provision of this EULA is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. The Customer may not assign its rights or obligations under this EULA without the prior written consent of the Company. Notwithstanding the foregoing, the Company may assign this EULA and the Order Form at its sole discretion. This EULA shall be governed by the laws of the State of Israel with respect to any disputes or claims howsoever arising under this EULA, including disputes regarding its existence, validity or termination or the consequences of its nullity. This EULA does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. Company will not liable for any delay or failure to perform hereunder resulting from circumstances or causes beyond the reasonable control of the Company (i.e., force majeure events). In case of a conflict between this EULA and other agreement executed between the Parties this EULA shall prevail. This EULA may be executed in electronic counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same agreement.
I HAVE READ AND UNDERSTOOD THIS EULA AND AGREE TO BE BOUND ON MY AND MY ORGANIZATION’S BEHALF BY ALL OF ITS TERMS AND CONDITIONS.