IMPORTANT – READ CAREFULLY THE FOLLOWING AGREEMENT BEFORE USING THE SERVICES (AS DEFINED BELOW). BY SELECTING THE “I AGREE” BUTTON BELOW, OR BY USING THE SERVICES, YOU (DEFINED IN THIS AGREEMENT AS THE “CUSTOMER”) AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, THEN DO NOT CLICK “I AGREE” OR USE THE SERVICES.
Furthermore, you hereby waive any rights or requirements under any law or regulation in any jurisdiction which requires an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.
The following terms and conditions (the “Agreement”) stipulate the terms and conditions of your access and use of the online platform provided on a SaaS (Software as a Service) basis and other services (“Service”) provided to you by Epistema Ltd. (“Epistema”). The Service is provided solely for your own use. Your use of the Service is expressly conditioned on your compliance and consent to this Agreement. By accessing or using the Service, you are indicating that you agree to be bound by this Agreement.
1. Service. Subject to the terms of this Agreement, Epistema shall provide Customer the limited, non-exclusive, revocable, non-sublicensable, non-transferable right to access and use the Service for internal use only.
2. Intellectual Property Rights & Restrictions. All intellectual property rights in the Service and any part thereof and any and all derivatives, changes and improvements thereof (the “Epistema Technology”) lie exclusively with Epistema. Customer shall (i) not attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Epistema Technology, or derive or attempt to create or derive, by reverse engineering or otherwise, the source code from any object code supplied hereunder, nor shall it permit any third party to do so; (ii) not resell, lease, sublicense or distribute the Epistema Technology to any person; (iii) not represent that it possess any proprietary interest in the Epistema Technology; (iv) not use the name, trademarks, trade-names, and logos of Epistema; (vi) not sub-license its right to access and use the Service or otherwise provide remote access to the Service to any third party; and (vii) not permit any unauthorized person to access or use the Service.
3. Customer Materials
1. License to Epistema. Customer hereby grants Epistema a limited, non-exclusive license to use, copy and reproduce any materials used or uploaded by Customer when using the Service (“Customer Materials”) solely to the extent required to perform the Service. Customer acknowledges and agrees that Epistema will not be liable for any Customer Materials and any use thereof, including, without limitation, for any errors or omissions, or for any infringement of third party’s rights, loss or damage of any kind incurred as a result of the use or display of any Customer Materials.
2. Ownership. Customer Materials is and shall remain Customer’s property and shall be used at Customer’s sole and absolute responsibility. The Service is not intended to be used as storage, backup or archiving services. It is the Customer’s responsibility to back up the Customer Materials and the Customer is responsible for any lost or unrecoverable Customer Materials. Epistema does not screen Customer Materials and is not responsible for any use of the Customer Materials. All intellectual property rights in the Customer’s Materials provided to Epistema by Customer lie exclusively with Customer.
3. Warranties and Covenants. Customer hereby warrants and represents that: (i) the copying, uploading and use of the Customer Materials does not infringe upon any third party’s proprietary rights, including intellectual property rights; (ii) the Customer has fully complied with any third-party licenses, permits and authorizations required in connection with such Customer Materials; (iii) the Customer Materials do not contain any viruses, worms, Trojan horses or other harmful or destructive code or content; and (iv) the Customer Materials are not obscene or libelous, and do not violate the right of privacy or publicity of any third party and are not otherwise illegal.
4. Confidentiality. During the term hereof, each party may have access to certain non-public proprietary, confidential or trade secret information or data of the other party, whether furnished before or after the Effective Date, and regardless of the manner in which it is furnished, which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (together, the “Confidential Information”). Confidential Information shall exclude any information that (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of receiving party; (ii) the receiving party can demonstrate in its records to have had rightfully in its possession prior to disclosure of the Confidential Information by the disclosing party; (iii) receiving party rightfully obtains from a third party who has the right to transfer or disclose it, without default or breach of this Agreement; (iv) the receiving party can demonstrate in its records to have independently developed, without breach of this Agreement or any use of or reference to the Confidential Information. The receiving party agrees: (a) not to disclose the disclosing party’s Confidential Information to any third parties other than to its, directors, officers, employees, advisors or consultants (collectively, the “Representatives”) on a strict “need to know” basis only and provided that such Representatives are bound by written agreements to comply with the confidentiality obligations as protective as those contained herein; (b) not to use or reproduce any of the disclosing party’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; (c) to keep the disclosing party’s Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care. Notwithstanding the foregoing, if receiving party is required by legal process or any applicable law, rule or regulation, to disclose any of disclosing party’s Confidential Information, then prior to such disclosure, receiving party will give prompt written notice to disclosing party so that it may seek a protective order or other appropriate relief.
5. Warranties. Each party represents and warrants that (i) this Agreement constitutes a legal, valid and binding obligation of it, enforceable against it in accordance with the terms of this Agreement, and (ii) its execution and delivery of this Agreement and its performance hereunder will not violate any applicable law, rule or regulation.
6. Disclaimer of Warranties. EPISTEMA PROVIDES THE USAGE OF THE SERVICE TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE OR ACCURACY. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, EPISTEMA DOES NOT WARRANT THAT THE SERVICE OR ANY SERVICES RELATED THERETO WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION.
7. Limitation of Liability. EPISTEMA’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE SHALL NOT EXCEED THE PRICE PAID BY CUSTOMER FOR SUCH SERVICE. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EPISTEMA BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT EPISTEMA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Consideration; Tax. To the extent the parties agreed on fees for access and use of the Service in an order, subscription or any other type of agreement (collectively an “Order”), the following will apply: Customer shall pay Epistema the fees set forth in the Order (the ” Fee”). All payments shall be due and payable in advance. The Fee shall be paid by wire transfer in accordance with the instructions of Epistema against a valid tax invoice within 30 days from the invoice date. Epistema may suspend or discontinue Customer’s access to the Service in the case of failure to pay the Fee on the date due. All payments under this Agreement are non-refundable. All amounts payable to Epistema are exclusive of all taxes, levies or similar governmental charges, however designated, except for taxes based on the net income of Epistema. If under applicable law taxes are required to be withheld, Customer shall pay Epistema an amount such that the net amount after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement
9. Term; Termination. Unless otherwise agreed in writing by the parties, this Agreement will commence on the date in which the Customer commences use of the Service or is granted the right to access the Service and shall remain in effect until terminated in accordance with the terms of this Agreement. Each party may terminate this Agreement at any time by giving the other party with 30 days prior written notice, unless the parties agreed on a set term in an Order, in which case Epistema will not have the right to terminate the Agreement prior to the end of the term agreed in an Order. In addition, each party may terminate this Agreement by giving written notice to the other party if: (i) the other party breaches a material provision of this Agreement and fails to cure the breach within seven days after being given written notice thereof; (ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party; or any petition by or on behalf of such party is filed under any bankruptcy or similar laws. Upon termination or expiration of this Agreement for any reason whatsoever, Customer will immediately cease use of the Service. Sections 2, 4, 6, 7, 9 and 10 shall survive any expiration or termination of this Agreement.
10. Publicity. If Customer subscribes to the Service, Customer agrees that Epistema may disclose the fact that Customer is a client of Epistema. While this Agreement is in effect, the Customer grants Epistema the right to reference Customer’s company name and logo in marketing materials and on Epistema’s web site until Customer’s use of the Service is discontinued.
11. Miscellaneous. This Agreement sets forth the entire understanding between the parties with respect to the subject matter herein, and supersedes all prior and contemporaneous written agreements and discussions concerning the subject matter of this Agreement. The failure of either party to enforce at any time the provisions of this Agreement shall not be interpreted to be a waiver of such provisions or of the right of such party to enforce each and every such provision. This Agreement is governed by and construed in accordance with the laws of the State of Israel, without regard to the principles of conflict of laws. Any and all disputes and controversies arising out of or in connection with the Agreement shall be brought exclusively before the competent courts of the Tel Aviv District, Israel. If any provision of this Agreement is determined to be void or unenforceable by a court of competent jurisdiction, such clause shall be interpreted as necessary to give maximum force to the provisions thereof, and the validity and enforceability of the remainder of this Agreement shall not be affected. All notices given under this Agreement shall be in writing and shall be deemed to have been duly given: when delivered, if delivered by messenger during normal business hours of the recipient; when sent, if transmitted by facsimile transmission during normal business hours of the recipient; or on the third business day following posting, if posted by international air mail. Customer may not transfer or assign its rights or obligations under this Agreement to any third party. Any purported assignment contrary to this section shall be void.