COIN-DASH LTD. AND/OR ANY OF ITS AFFILIATES (COLLECTIVELY “COMPANY”) IS WILLING TO LICENSE THE SOFTWARE AND THE SERVICE (AS DEFINED BELOW) TO YOU ONLY UPON YOUR ACCEPTENCE OF ALL OF THE TERMS CONTAINED IN THIS LICENSE AND SERVICE AGREEMENT (THE “AGREEMENT”).
THIS AGREEMENT GOVERNS YOUR USE OF THE SOFTWARE AND THE SERVICE, AND CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN COMPANY AND YOU.
PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE CLICKING ON THE “ACCEPT” BUTTON, IN WHICH CASE YOU WILL BE BOUND BY THIS AGREEMENT. BY CLICKING THE “ACCEPT” BUTTON YOU ALSO WAIVE ANY RIGHTS OR REQUIREMENTS UNDER ANY LAWS OR REGULATIONS IN ANY JURISDICTION WHICH REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW.
PLEASE BE AWARE THAT DOWNLOAD AND/OR INSTALLATION OF THE SOFTWARE AND/OR THE SERVICE, AS WELL AS USE OF THE SOFTWARE AND/OR THE SERVICE, CONSTITUTES ACKNOWLEDGEMENT AND ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND YOUR AGREEMENT TO BE BOUND THEREBY. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DO NOT ACCEPT” BUTTON.
WHEREAS, the Company have developed certain Service (as defined below) which it makes available to customers, on a subscription basis;
WHEREAS, you (the “Customer”) wish to use the Service for your internal business operations and the Company agrees to provide the Service, all subject to the terms and conditions of this Agreement and as further described herein;
WHEREAS, the Company is the owner of the Software (as defined below);
WHEREAS, Customer desires to obtain a license from the Company to use the Software, and the Company is willing to grant Customer such rights and license for the Software, all subject to the terms and conditions set forth herein;
NOW, THEREFORE, the parties hereby agree as follows:
For purposes of this Agreement and its appendixes, the following capitalized terms shall have the following meaning:
1.1 “Documentation” means the user’s guides and technical manuals of the Software, and all other written and or electronic materials relating thereto, provided by the Company to Customer under this Agreement.
1.2 “Intellectual Property Rights” means all intangible legal rights, titles and interests evidenced by or embodied in all: (i) inventions (regardless of patentability and whether or not reduced to practice), improvements thereto, and patents, patent applications, and patent disclosures, together with all reassurances, continuations, continuations in part, revisions, extensions and reexaminations thereof; (ii) trademarks, service marks, trade dress, logos, trade names and corporate names, together with translations, adaptations, derivations, and combinations thereof, including goodwill associated therewith, and applications, registrations, and renewals in connection therewith; (iii) any work of authorship, regardless of copyrightability, copyrightable works, copyrights and applications, registrations, and renewals in connection therewith; (iv) mask works and applications, registrations and renewals in connection therewith; (v) trade secrets and Confidential Information; and (vi) other proprietary rights and any other similar rights, in each case on a worldwide basis, and copies and tangible embodiments thereof, in whatever form or medium.
1.3 “Maintenance Period” means the period following the Effective Date.
1.4 “Maintenance Services” means the maintenance and support services, as more fully described in Appendix A attached hereto.
1.5 “New Release” means a new version of the Software that includes or adds new functionality or adds substantially new features to the Software, including any major enhancements, as designated by a progressing of the version number left of the decimal point following the version initially delivered hereunder.
1.6 “Non-Personal Usage Information” shall mean information regarding the use of the Software which does not enable identification of an individual user.
1.7 “Personally Identifying Information” means, information which is identifiable to individual user, including inter alia, name, e-mail address, phone number etc.
1.6 “Service(s)” shall mean: (a) Company’s proprietary remote signer called KeyVault, an online cloud based software as a service (SaaS) which is assigned duties directly from the Software and grants a user management access to an individualized remote signing environment in which validator keys are securely stored and signing requests are properly managed, made available to Customer pursuant to the terms of this Agreement (together with the Software, the “Program”); and (b) any and all maintenance services performed from time to time by the Company in connection therewith; and (c) any and all support services as may be provided by the Company to Customer pursuant to this Agreement; and (d) other related services in connection therewith, as now offered and/or may be offered in the future.
1.9 “Software” means Blox Live, the Company’s open-source, fully non-custodial staking platform for Ethereum 2.0, which can be downloaded from the Company’s website (“Website”) or from GitHub, including Documentation and any Updates and Upgrades thereto (to the extent delivered). The access to, and the use of, the Website and the Program shall be subject also to the Terms and Conditions which can be found at https://www.bloxstaking.com/terms-of-use/ and which are incorporated herein by reference.
1.10 “Software Agents” means Customer’s computers in which the Software shall be installed.
1.11 “Updates” means, with respect to any element of the Software, a new version of such element that includes bug fixes and minor enhancements to the Software, as designated by a progressing of the version number right of the decimal point following the version initially delivered hereunder, and which is made available by the Company to its customers generally.
1.12 “Upgrades” means software releases that contain enhancements to the functionality or performance of any part of the Software that is generally made available by the Company to its customers.
2. THE COMPANY DOES NOT AND SHALL NOT SELL OR TRANSFER TITLE IN THE SERVICE AND/OR THE SOFTWARE, OR ANY PART THEREOF, TO CUSTOMER. Subject to the terms of the GPL License (as defined below), the Services and/or the Software and/or any copies thereof, including without limitation any derivative works made (regardless of whether such derivative works were made and/or developed pursuant to the request and/or specifications of Customer, and irrespective of any support and/or assistance Company may, will or had received from Customer, or any third party on its behalf, with respect thereto), as well as any Updates and Upgrades thereto, if provided to Customer pursuant to this Agreement, shall remain Company’s sole and exclusive property. Subject to the terms of the GPL License, all Intellectual Property Rights evidenced by or embodied in and/or attached/connected/related to the Services and/or the Software, or part thereof are and shall be owned solely and exclusively by the Company. Nothing in this Agreement shall constitute a waiver of Company’s Intellectual Property Rights under any law, or be in any way construed or interpreted as such. It is further agreed that to the extent Customer provides Company suggestions, comments or feedback (whether orally or in writing) with respect to the Software and/or the Services (the “Feedback”), Customer acknowledges that any and all rights, including Intellectual Property Rights in such Feedback shall belong exclusively to Company and that such shall be considered Company’s Confidential Information and Customer hereby irrevocably transfers and assigns to Company all Intellectual Property Rights in such Feedback and waives any and all moral rights that Customer may have in respect thereto. It is further understood that use of Feedback, if any, may be made by Company at its sole discretion, and that Company in no way shall be obliged to make use of any kind of the Feedback or part thereof.
3. WITHOUT DEROGATING FROM THE AFORESAID, THE PROGRAM IS FREE SOFTWARE: YOU CAN REDISTRIBUTE IT AND/OR MODIFY IT UNDER THE TERMS OF THE GNU GENERAL PUBLIC LICENSE AS PUBLISHED BY THE FREE SOFTWARE FOUNDATION, EITHER VERSION 3 OF THE LICENSE, OR (AT YOUR OPTION) ANY LATER VERSION.
4. THE PROGRAM IS DISTRIBUTED IN THE HOPE THAT IT WILL BE USEFUL, BUT WITHOUT ANY WARRANTY; WITHOUT EVEN THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND SUBJECT TO THE GNU GENERAL PUBLIC LICENSE FOR MORE DETAILS (“GPL LICENSE”).
5.License Grant. Subject to the terms and conditions of this Agreement and the GPL License, Company grants to Customer and Customer accepts from Company a non-exclusive, irrevocable, non-transferable, non-sub licensable and limited license, during the Term (as defined below), to use the Software and the Service for Customer’s internal use purposes (together, the “License”). The rights provided under Section 2 are granted to Customer only, and shall not be considered granted to any subsidiary or affiliate of the Customer.
6. Registration to the Software and the Service. In order to use the Program, Customer must complete a registration process. The registration process may require Customer to provide information regarding (but not limited to) itself, including first and last name, e-mail address, Customer’s location and/or other information. By completing the registration, Customer represents and warrants that all information it submits is accurate, completed and truthful and that it agrees to update and maintain the accuracy of such information. After completing the registration process, Customer will receive a “Passphrase” consisting of 24 words, which will be encrypted in the Software Agent. Then, Customer will be required to enter a password. Company does not store Customer’s private keys, Passphrase or passwords on its servers. Customer must safeguard and not disclose its Passphrase and password and must supervise the use of the Program.
7. Restrictions on the use of the Service and the Software.
7.1 Without derogating from and in addition to the terms of the GPL License, the Customer shall not: (a) attempt to copy, modify, duplicate, imitate, reproduce, create derivative works from, frame, mirror, or download, all or any portion of the Program (or any part thereof) in any form or media or by any means, all not in accordance with the GPL License; and/or (b) sell, rent, lease, transfer, assign, distribute, transmit, display, publish, disclose, or otherwise dispose, or otherwise make the Program (or any part thereof) available to any third party, all not in accordance with the GPL License; and/or (c) and/or attempt to obtain, or assist third parties in obtaining, unauthorized access to the Program (or any part thereof); and/or (d) abuse the Program (or any part thereof) in any way and/or use the Program (or any part thereof) for advertising or solicitation to buy or sell any products and/or for creating, sharing and sending unsolicited commercial messages, bulk email, “junk mail”, “spam” or chain letters; and/or (e) create or send any viruses, worms or trojan horses, flood or mail bombs, or engaging in denial of service attacks while using the Program (or any part thereof); and/or (f) use or launch any automated system, including without limitation, any “robots”, “spiders”, or “offline readers”, that accesses the Program (or any part thereof) in a manner that sends to the servers, cloud or other platform on which the Program (or any part thereof) operates, more request messages in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser; and/or (g) use or launch any data mining or any similar data gathering and extraction tools, in connection with the Program or any part thereof (including by using software, scripts or automated agents and bots); and/or (h) use the Program (or any part thereof) in any manner that damages, disables, overburdens, or impairs the Program (or any part thereof), or Company’s systems or servers, or the cloud or other platform on which the Program (or any part thereof) operates, and/or otherwise interferes with any other party’s use and enjoyment of the Program (or any part thereof), and/or (i) access the Program (or any part thereof) by any means other than through the interface that is provided by the Company for accessing and use of the Program (or any part thereof); and/or (j) use the Program (or any part thereof) in any manner that is unlawful or prohibited or in violation of this Agreement and/or any applicable law or regulation; and/or (k) place the Program (or any part thereof) onto a server other than the designated server or otherwise, unless explicitly approved otherwise in writing by Company; and/or (l) make the Program (or any part thereof) accessible to other users or the public not in accordance with the GPL License; and/or (m) remove, alter or obscure any proprietary notice or identification, including copyright, trademark, patent or other notices, contained in or displayed on or via the Program (or any part thereof); and/or (n) represent that it possesses any proprietary interest in the Program (or any part thereof) not in accordance with this Agreement and the GPL License; and/or; and/or (o) permit any third party to do any of the foregoing.
7.2 Customer shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Program and, in the event of any such unauthorized access or use, it shall promptly notify Company.
8.1 The Company undertakes to use commercially reasonable endeavors to make the Service available within the time frame set forth in Appendix A, and further undertakes that the Service will be provided with reasonable commercial skill and care.
8.2 The undertaking in Section 11.111.1 above shall not apply to the extent that any non-conformance is caused by use of the Service in contrary to the Company’s instructions and Documentation and/or in any way other than in strict compliance with this Agreement. Subject to the foregoing, if the Service does not conform to the undertaking in Section 11.1, Company will, at its expense, use all reasonable commercial endeavors to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy, and Company’s sole liability, for any breach of the undertaking set out in Section 11.1. Notwithstanding the foregoing and in addition to any disclaimers set forth in this Agreement, Company: (a) does not warrant that the Program will operate error free or without interruption or bugs; nor that the Program will meet the Customer’s requirements or expectations; and (b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and Customer acknowledges that the Program may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
9.1 Without derogating from any other obligation of the Customer pursuant to this Agreement, the Customer undertakes to: (a) provide Company with all necessary cooperation in relation to this Agreement and in order to render the Service and to use the Program; (b) comply with all applicable laws and regulations with respect to its activities under this Agreement and its use of the Program; (c) carry out all other Customer’s responsibilities set out in this Agreement in a timely and efficient manner; (d) to the extent required, obtain and maintain all necessary licenses, consents, and permissions necessary for Company to perform its obligations under this Agreement; (e) ensure that its network and systems comply with the relevant specifications provided by Company from time to time; and (f) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Company’s data centers, Company’s servers, third party’s external servers, cloud or other platform on which the Program operates (as shall be instructed by Company from time to time), and be solely liable for problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
10. Third Party Software. Customer acknowledges and agrees that any third party software that may be provided with the Program and/or is offered by Company to be downloaded directly by Customer (“Third Party Software”) is provided under the terms of the license attached/linked thereto or, if no such license is attached, such Third Party Software is provided for free and on “AS IS” basis. the Company is not liable for any losses or damages which may occur resulting from the use of any Third Party Software. The Company does not possess any proprietary interest in such Third Party Software.
In Addition, in any event that the Customer desires to use any other third party software, which is not a Third Party Software, in conjunction with the Program in any way whatsoever, Customer shall inform Company in writing prior to any such intended use.
11.Open Source Licenses. The Program includes certain open source code software and materials (as shall be listed in the Documentation of the Software) (“Open Source Software”) that are subject to their respective open source licenses (“Open Source Licenses”). Such Open Source Licenses contain list of conditions with respect to warranty, copyright policy and other provisions. By executing this Agreement, Customer undertakes to strictly comply with the terms and conditions of the Open Source Licenses, as may be amended from time to time. In order to comply with the Open Source Licenses, Customer shall read the respective licenses or notices. In the event of any inconsistencies or conflicting provisions between the provisions of the Open Source Licenses and the provisions of this Agreement, the provisions of the Open Source Licenses shall prevail. Without derogating from the generality of the foregoing, it is clarified that any Open Source Software is provided on an “AS IS” basis, without indemnity or warranty of any kind, whether express or implied. For clarity, the representations and warranties set forth in Section 22-25 hereunder shall not apply to any Open Source Software.
In Addition, and without derogating from the aforesaid, Customer shall not use any open source software which is not an Open Source Software in conjunction with the Program in any way whatsoever, unless such use is explicitly approved in writing by Company.
12. Third Party Providers. Customer acknowledges that in order to access and/or use the Program, Customer shall maintain third party cloud infrastructure services account of Customer’s choice. The Customer acknowledges and agrees that the Company is not and shall not be responsible for the availability, performance or security of any such external third party services or resources, and it shall not be held liable for any loss or damage (including loss of data and/or loss of profits), which may be incurred by the Customer, as a result of the lack of availability of, the interruptions or errors in the performance of, and any other problem in those external third party services or resources, or as a result of the lack of availability of, the interruptions or errors in the performance of, and any other problem in the Service provided through such external third party services or resources.
13. Customer acknowledges and agrees that Company may collect Non Personal Usage Information of the Customer and/or Customer’s users in order to ensure the quality of the Software and/or the Service and also to continuously improve the performance of the Software and/or the Service as described below.
14. The Company may collect, including by using third parties’ web analytics services, aggregated Non Personal Usage Information about the time, type and manner of use of the Service and/or the Software (including suspicious files and other related information and data). This Information may include inter alia information regarding the IP Address and Geo-IP parameters, non-personal usage statistics (e.g. time of usages, number of clicks on each link etc.), crash reports and other information regarding the use of the Service and/or the Software. The Company may use such information for the purpose of detecting, and improving the Service and/or the Software, to understand how Customer’s users use the Service and/or the Software, to analyze retention, to ensure that the Service and/or the Software are up to date and provide automatic updates, and to improve the Service and/or the Software and enhance the experience of the Customer.
15. The Company shall treat all collected information at all times as Confidential Information and shall not use it for any other purpose other than as described above.
16. COMPANY WILL NOT COLLECT ANY PERSONALLY IDENTIFYING INFORMATION, EXCEPT WHEN SUCH INFORMATION IS VOLUNTARY PROVIDED BY CUSTOMER IN THE COURSE OF ITS USE OF THE SOFTWARE AND/OR THE SERVICE.
18. In order to become a validator and participate in Ethereum 2.0 staking, Customer may be required to lock-up number of ETHs in the network (the “Locked-Up ETHs” or “Lock-Up Eth”). In addition, in order to access and use the Software and/or the Service, Customer may be required to “burn” CDT tokens in a number indicated within the Program (the “Fees”). Customer may also have the option to transfer the Fees in the form of ETH to a smart contract converting the ETH to CDT using a third-party service. The burning of the CDT, and thus completing the transfer of the Fees, shall be done by transferring the tokens to an inaccessible wallet using a smart contract. Customer acknowledges and agrees that the burned Fees will not be refundable in any case, while the Locked-Up ETHs shall be accessible and transferable or inaccessible and untransferable based only on the Ethereum Blockchain policies, which the Company cannot change or influence and therefore is not liable for.
19. Except for the aforesaid, Customer is not required to pay any additional consideration for the use of the Software and/or the Service. However, the Company reserves the right to subject all or parts of the Software and/or the Services offered to additional payment of certain fees in the future.
20. Customer acknowledges that Company (i) does not control the Ethereum 2.0 blockchain; (ii) does not hold, nor have any access to, Customer’s digital wallets and/or to the Locked-Up ETHs as described above, and that such ETHs are transferred directly from Customer’s digital wallet to the Ethereum 2.0 blockchain deposit smart contract; and (iii) is a fully non-custodial solution in which the Customer’s private keys are not accessible by the Company.
21. Without derogating from the aforesaid, Customer hereby represents and warrants that (i) the Fees burnt and the Locked-Up ETHs are not originated in any illegal activity, including corruption or organized crime or that may relate to the financing of terrorism, and (ii) Customer, nor any family member of the Customer (and it Customer is an entity, any of Customer shareholders and/or directors), holds nor has ever held a senior public position in any country.
22. EXCEPT AS SET FORTH HEREIN, THE SOFTWARE AND THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE, AS WELL AS ANY WARRANTIES REGARDING SECURITY, SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, ACCURACY AND PERFORMANCE OF THE SOFTWARE AND/OR THE SERVICE, ARE ALL EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE COMPANY (OR ANYONE ON ITS BEHALF) IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY IF NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.
23. THE COMPANY DOES NOT WARRANT THAT (i) THE SOFTWARE AND/OR THE SERVICE WILL OPERATE ERROR-FREE; AND/OR (ii) COMPANY WILL CORRECT ANY ERROR IN THE SOFTWARE AND/OR IN THE SERVICE; AND/OR (iii) THE SOFTWARE AND/OR THE SERVICE WILL.
24. WITHOUT DEROGATING FROM THE AFORESAID, THE SOFTWARE AND/OR THE SERVICES MAY PROVIDE CUSTOMER WITH ASSUMPTIONS ONLY REGARDING THE AMOUNTS OF REWARDS CUSTOMER MAY EARN DIRECTLY FROM THE BLOCKCHAIN FOR CORRECTLY PERFORMING ITS ASSIGNED DUTIES DURING THE STAKING PROCESS. SUCH ASSUMPTIONS ARE PROVIDED WITHOUT ANY WARRANTY WHATSOEVER AND COMPANY SHALL NOT HAVE ANY LIABILITY, AND CUSTOMER HEREBY WAIVES ANY CLAIM AGAINST THE COMPANY, WITH RESPECT TO SUCH ASSUMPTIONS.
25. Applicable law may not allow the exclusion of certain warranties, so to that extent such exclusions may not apply.
26. UNDER NO CIRCUMSTANCES SHALL COMPANY AND/OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF DATA, REVENUE, BUSINESS OR REPUTATION, THAT ARISES UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT RESULTS FROM THE USE OF, OR THE INABILITY TO USE, THE SOFTWARE AND/OR THE SERVICE.
COMPANY’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL DAMAGES AND LOSSES THAT ARISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT RESULT FROM CUSTOMER’S USE OF OR INABILITY TO USE THE SOFTWARE AND/OR THE SERVICE, SHALL NOT IN ANY CIRCUMSTANCE EXCEED THE TOTAL AMOUNTS, IF ANY, ACTUALLY PAID BY CUSTOMER TO COMPANY FOR USING THE SOFTWARE AND/OR THE SERVICE WITHIN THE NINE (9) MONTHS PRECEDING THE DATE OF BRINGING A CLAIM, OR US$100, WHICHEVER IS LOWER.
THE FOREGOING LIMITATIONS AND EXCLUSIONS IN THIS SECTION 29 SHALL APPLY: (i) EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY DAMAGES OR LOSSES; (ii) EVEN IF ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE; AND (iii) REGARDLESS OF THE BASIS OR THEORY OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, COMPANY WILL NOT BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE OR NON-AVAILABILITY OF THE SOFTWARE AND/OR THE SERVICE RESULTING, DIRECTLY OR INDIRECTLY, FROM ACTS OF NATURE, FORCES, EVENTS, OMISSIONS, ACCIDENTS OR CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, BUT NOT LIMITED TO, INTERNET FAILURE, NETWORK OR COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURE, ELECTRICAL POWER FAILURES, STRIKES, LOCK-OUTS OR OTHER INDUSTRIAL DISPUTES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, PANDEMIC, FLOODS, STORMS, EXPLOSIONS, BREAKDOWN OF PLANT OR MACHINERY, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS OR ORDERS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS.
27. Confidential Information. Each party (the “Disclosing Party”) may from time to time during the Term, disclose to the other party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including technical, marketing, financial, employees, planning and other confidential or proprietary information (“Confidential Information”). Without derogating from the aforesaid, any information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party, will be considered Confidential Information of the Disclosing Party. For clarity, any information related to the Software and/or the Service shall be deemed as Company’s Confidential Information.
28. Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder; and in any event the Receiving Party shall assume full responsibility for any breach of this Agreement caused by any such employees or contractors. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
29. Exceptions. The Receiving Party’s obligations with respect to any Confidential Information of the Disclosing Party shall not apply to information that the Receiving Party can document that: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is required by law or by the order or a court of similar judicial or administrative body; provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
30. Term. This Agreement shall commence on the date the Customer starts using the Software and/or the Services, the earlier of, and shall remain in effect until terminated in accordance herewith (the “Term“).
31. Termination for Breach. Either party may terminate this Agreement at any time by giving written notice to the other party if the other party is in breach or default of any material provision of this Agreement, and the breaching party fails to cure the breach or default, within 14 days after being given written notice, specifying details of the breach or default and requiring the same to be remedied, provided however that in case of breach by Customer of Section 7, Company may terminate this Agreement with immediate effect, and/or disable, suspend or terminate Customer’s access to the Program, without any liability to the Customer.
32. Termination Due to Insolvency. Either party may terminate this Agreement immediately, in the event the other party: (i) is judged bankrupt or insolvent; (ii) makes a general assignment for the benefit of its creditors; (iii) a trustee or receiver is appointed for such party or for any of its property; or (iv) any petition by or on behalf of such party is filed under any bankruptcy or similar laws, and such appointment or petition are not removed within 60 days.
33. Effect of Termination. Upon the termination of this Agreement pursuant to Sections 34 or 35 above, Customer will: (i) immediately cease use of the Software and the Service; (ii) uninstalled or otherwise destroy all copies of the Software in its possession, which are fixed or resident in the memory or hard disks of its Software Agents; (iii) return to Company any and all Confidential Information then in its possession; and (iv) certify in writing to Company that all copies and partial copies of the Software and related Documentation have been either returned to Company or otherwise erased or destroyed and deleted from any Software Agents, including computer libraries or storage devices and are no longer in use by Customer. Sections 2-4, 18-29, 33 and 35-44 shall survive the termination of this Agreement.
34. The Company shall defend or settle at its expense any action, claim or proceeding, brought against Customer to the extent based upon a third party claim that the Software and/or the Service, when used as permitted under this Agreement, infringes any third party’s patent, copyrights or trade secret (“Claim”) and Company agrees to pay Customer all liabilities, damages, costs, and expenses actually incurred by Customer, including without limitation reasonable attorney fees finally awarded against Customer or paid in a settlement approved in advance by Company, and arising out of such Claim. Company’s indemnity obligation shall not extend to claims based on: (i) an unauthorized modification or use of the Software and/or the Service made by any third party other than Company, where the Software and/or Service, without such modification or unauthorized use, would not be infringing; (ii) the combination of non-infringing items with any items not supplied by Company, where the Software and/or the Service, without such combination, would not be infringing; (iii) the use by Customer of any version which is not the latest available version of the Software that was delivered to Customer; or (iv) any infringements of any open source component within the Software and/or the Service. As a condition to the defense set forth above, Customer shall give Company prompt notice of any such claim made against it, and grant Company sole control of the defense of any such claim, suit or proceeding, including appeals, negotiations and any settlement or compromise thereof. If the Software and/or the Service or part thereof becomes, or in Company’s opinion may become, subject to any claim of infringement of any duly issued patent or copyright or asserted trade secret right and its use is thereby enjoined, Company’s sole liability shall be, at Company’s option, to either: (a) procure for Customer the right to continue using the Software and/or the Service; or (b) replace or modify the Software and/or the Service, so that it is non-infringing. This Section states Company’s entire liability, and Customer’s exclusive remedy, for claims or alleged or actual infringement.
35. Representations of the Parties. Each party hereby represents and warrants that it has the right, power and authority to enter into this Agreement and to execute its undertakings hereunder. Company also warrants it owns or has the necessary rights and permissions to grant Customer with the rights and License hereunder.
36. Governing Law. This Agreement shall be governed by the laws of the State of Israel, without reference to its conflict of laws rules. The parties agree that exclusive jurisdiction for any dispute arising out of or relating to this Agreement lies within the State of Israel courts located in Tel Aviv, Israel.
37. Independent Contractor. The parties expressly agree that they are independent contractors. Nothing in this Agreement is intended to or shall be interpreted to create a partnership or a joint venture between the parties or authorize either party to act as agent for the other.
38. Waiver. No waiver of rights arising under this Agreement shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No failure or delay by either party in exercising any right, power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy and/or prejudice any rights of such party.
39. No Third-Party Beneficiaries. This Agreement is intended solely for the benefit of the parties. In no event will any third party have any rights in relation to this Agreement or any right to enforce the terms hereof.
40. Force Majeure. Company is excused for any delays, losses or damages due to causes beyond its control, including, without limitation, fire, explosion, power irregularities or surges, acts of God, earthquakes, rains, floods, lightning, labor unrest, strikes, strife, pandemic or any other cause that was not reasonably foreseeable on the date of signing of this Agreement.
41. Subcontracting and Assignment. Customer shall not assign and/or subcontract any of its rights and obligations under this Agreement, except with Company’s prior written consent. Company may assign any of its rights and/or obligations hereunder at Company’s sole discretion in case of a merger or an acquisition of Company’s shares or in case of a sale of all or substantially assets of the Company to which this Agreement pertains.
42. Severability. If any provision under this Agreement is determined by a court to be unenforceable, that provision will be deemed to be modified to the extent necessary to allow it to be enforced to the extent permitted by law, or if it cannot be modified, the provision will be severed and deleted, and the remainder of the Agreement will continue in effect.
43. Notices. All notices to be provided under this Agreement, shall be in writing and must be delivered, by the means identified below, to: (a) for notices to Customer – the address of the Customer as provided in the registration to the Software and/or the Service (if any); and (b) for notices to Company- 30 Ha’Arba’a, Tel Aviv 6473926. Any such notice, document or communication shall be deemed to have been given and received by the addressee for the purposes of this Agreement: (a) if left at the recipient’s address, on the date of delivery; or (b) if sent by registered mail, three (3) business days after the date of dispatch; or (c) when sent, if transmitted by e-mail.
44.Entire Agreement. The parties have read this Agreement, and agree to be bound by its terms, and further agree that it constitutes the complete and entire agreement of the parties and supersedes all previous communications between them, oral or written, relating to the subject matter hereof. No representations or statements of any kind made by either party that are not expressly stated herein shall be binding on such party.
1.1 The Maintenance Services shall include remote diagnosis of problems or performance deficiencies of the Software and/or the Service (including bugs, errors and defaults) and the provision of appropriate solutions to the problems or performance deficiencies of the Software and/or the Service. It is expressly agreed and acknowledged that in order for it to be able to maintain the functionality of the Software and/or the Service, Company shall be entitled, at its sole discretion, to perform remote installations and/or updates to the Software and/or the Service at its sole discretion.
1.2 The Maintenance Services shall be provided over an email or in the Company’s Discord Channel or by remote means that are currently used by Company’s technical team. Company will provide e-mail and Discord support during Business Hours (as defined below) on every business day other than Friday and Saturday or public holiday in Israel (“Business Days”).
1.3 Company will use its best efforts to cure all reported errors in the Software and/or the Service by utilizing the following three (3) severity levels to categorize reported problems:
1.3.1 SEVERITY 1 – CRITICAL BUSINESS IMPACT
The impact of the reported deficiency is such that Customer is unable to either use the Software and/or the Service or continue work using the Software and/or the Service in accordance with its specifications. Company will commence work on resolving the deficiency: (i) immediately if the deficiency is reported during the hours 10:00AM-6:00PM (Israel Time) on a Business Day (“Business Hours”), (ii) within 24 hours if the deficiency is reported during the hours 6:00AM-10:00AM (Israel Time) on a Business Day; (iii) within 24 hours during the hours 6:00PM-6:00AM (Israel Time) on a Business Day or at any other time on a day which is not a Business Day. Company will engage staff during Business Hours (as defined above) until an acceptable resolution is achieved.
1.3.2 SEVERITY 2 – SOME BUSINESS IMPACT
Important features of the Software and/or the Service are unavailable, but an alternative solution is available or non-essential features of the Software and/or the Service are unavailable with no alternative solution. Customer impact, regardless of product usage, is minimal loss of operational functionality or implementation resources. Company will commence work on resolving the deficiency at the beginning of the next Business Day of notification and will engage staff during Business Hours until an acceptable resolution is achieved.
1.3.3 SEVERITY 3 – MINIMAL BUSINESS IMPACT
Customer submits a Software/Service information request, Software/Service enhancement or documentation clarification which has no operational impact. The implementation or use of the Software and/or Service by Customer is continuing and there is no negative impact on productivity. Company will provide an initial response regarding the request within six (6) Business Days.
1.4 In addition to the aforesaid, during the Term, Company commits that the Software and the Service will be operational and available at least 95% of the time in any given month, subject to the limitations set forth herein (the “Uptime Guarantee”). It is hereby expressly agreed that the Uptime Guarantee shall exclude and shall not apply in the event of unavailability of the Software and/or the Service due to (i) scheduled maintenance, such scheduled maintenance to take place only between 10:00PM-6:00AM (Israel Time), unless Company provides a notice in advance stating otherwise; (ii) any failure related to the host; (iii) events of force majeure.
1.5 Pursuant to the aforesaid, the Uptime Guarantee shall allow a total amount of up to 7 hours per month, during which the Software and/or the Service is not available (“Excused Downtime”).
1.6 Downtime, specifically excluding any Excused Downtime, shall be calculated as of the time Company begins handling the malfunction and up until restoration of the Software and/or the Service availability.
1.7 In the event of a Total Crash-Down (as defined below), Company commits to have the Software and/or the Service and related systems under its control up and running within 7 days.
“Total Crash-Down” shall exist if the host cannot restore its servers hosting the Software and/or the Service, and new servers are required in order to re-launch the system (“New Servers”). The 7 days period shall begin when Company receives written notice, issued by the host, determining it has suffered a Total Crash-Down and Company has been provided with a full remote access to the New Servers. Following the recovery from a Total Crash-Down, Company shall issue a full report relating to such Total Crash-Down.
1.8 Company shall provide Customer, at Customer’s request and expense, at times to be agreed by the parties, with system experts, on an hourly basis, according to Company’s then current price list. Such services may include modifications, adaptation of enhancements, development of special functions, training, consulting, etc. (the “Additional Services”). For the avoidance of doubt, the parties expressly agree and acknowledge that none of the Services provided under this Appendix shall be considered as Additional Services.
2. Maintenance and Updates
During the Term, Company will provide Customer with all copyrighted patches, updates, releases and new versions of the Software and/or the Service as provided to other Customers of the Company, along with other generally available technical material, all pursuant to the License and Services Agreement.
Capitalized terms used but not defined herein shall have the meaning ascribed to them in the License and Service Agreement.