Software End User License Agreement (“EULA”)
IMPORTANT – READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS (TOGETHER WITH ALL EXHIBITS, THE “AGREEMENT”, OR “EULA”). BEFORE INSTALLING THE SOFTWARE. BY CLICKING THE “I AGREE” BUTTON OR USING OR INSTALLING THE SOFTWARE, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, CLICK THE “CANCEL” BUTTON AND THE INSTALLATION PROCESS WILL NOT BEGIN, OR DO NOT USE OR INSTALL THE SOFTWARE. DO NOT SELECT “I AGREE” OR INSTALL OR USE THE SOFTWARE UNTIL YOU HAVE CAREFULLY READ, UNDERSTOOD, AND AGREED TO THESE TERMS. FURTHERMORE, YOU HEREBY 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.
THESE TERMS CONSTITUTE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU, THE COMPANY ON WHOSE BEHALF YOU ARE INSTALLING THE SOFTWARE OR USING THE SOFTWARE, AND THE COMPANY USING OR LICENSING THE SOFTWARE (COLLECTIVELY, “LICENSEE”, “YOU” OR “YOUR”) AND CONTACIT LTD. AND/OR ITS AFFILIATES (“COMPANY”), WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION RELATING TO THE SUBJECT MATTER OF THESE TERMS.
YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM THE SOFTWARE.
"Company App" means the app which can be used in connection with the Software.
“Documentation” shall mean the user’s guides and technical manuals that may be delivered by Company to Licensee together with the Software.
“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 reissuances, 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 (including droit morale) 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.
“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.
“Software” means all or any portion of the Company software product which are part of the employee management platform, related documentation, user manuals, and Updates, and all other written and or electronic materials relating thereto, if provided by Company to Licensee in connection therewith.
“Subsidiary” shall mean a corporation, company or other entity fifty percent (50%) or more of whose control or outstanding voting shares or securities are directly owned or controlled by Company.
“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 at no additional cost by Company to its customers generally.
“Order Form" means a purchase order executed and delivered by Licensee to Company which incorporates the payments and fees and is an inseparable part of these EULA.
License Grant. Subject to these EULA and upon receipt of applicable payment detailed in the Order Form , Company grants to Licensee and Licensee accepts from Company, for the license term specified in the Order Form (the “License Term”) a limited, revocable, non-exclusive, non-transferable, non-sublicensable, non-assignable, internal license specifically for the number of users stated in the Order Form, ("Licensed Users") and limited to 500 MB storage to: (i) download, install and use the Software on a device that Licensee owns or controls; and (ii) access and use the Software for internal use purposes only according to the limitation of use set forth in this Section and in the EULA (“License”).
Third Party Software.
Portions of the Software may include third party software that are subject to third party terms and conditions, including third party open source software (“Third Party Terms”). A list of any third party software and related Third Party Terms is available at http://www.ubeya.com/privacy/third-party. If there is a conflict between any Third Party Terms and the Terms herein, then the Third Party Terms shall prevail but solely in connection with the related third party software. Notwithstanding anything in the Terms to the contrary, Company makes no warranty or indemnity hereunder with respect to any third party software and Licensee shall be fully and solely liable for abiding according to such Third Party Terms and indemnifying Company for any such claims against Company in relation to breach of such Third Party Terms by Licensee or on its behalf
License Restrictions. Other than the rights explicitly granted in this EULA, Licensee shall have no other rights, express or implied, in the Software. The Software should be installed and/or used explicitly in accordance with the Documentation and the instructions of Company. Except as expressly and unambiguously permitted by this EULA, Licensee may not, nor permit anyone else to, directly or indirectly: (a) copy or modify any Software source code, either alone or in conjunction with any other product or program; (b) exceed the scope of license set forth in Section 2; (c) reverse decompile or reverse assemble all or any portion of the Software; (d) distribute, disclose, market, rent, lease, lend, sublicense, or transfer to any third party the Software or use the Software in any timeshare, hosting or service bureau arrangement; (e) export the Software in violation of any applicable laws or regulations; (f) remove any identification, including copyright, trademark, patent or other notices, contained in or on the Software or Documentation; (g) use the Company name, logo or trademarks without prior written consent from Company; (h) use the Software in any application or situation where any failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage; (i) use concurrently by more than the allowed Licensed Users, or use in a local area network or other network without separate authorization by Company, and in any case make use of the Software beyond the storage limitation of 500 MB , and (j) represent that it possesses any proprietary interest in the Software. Any right not explicitly granted to Licensee is reserved to Company.
Account. In order to use the Software, You need to create or use an account (an “Account”). This Account will enables Licensee to fully utilize the Software’s features such as for the recruitment, employment and management of employees and will also enable the usage the App in connection with the Software. The Account enables Licensee to add relevant information regarding its business in specific applicable databases. Third parties that have received permission from the Licensee to connect onto its databases in the Account ("Licensees App Users"), will be able to download the App via the available mobile app stores http://www.ubeya.com/m/i/ and connect to Licensee's databased available in Licensee's Account, which have been added and are managed solely by Licensee. Licensee is solely liable for any information added into the Account including all databases and can later remove, add or update as needed any information in the databases, including deleting access allowance to specific Licensee App Users. Opening an Account requires Licensee to provide accurate and complete information l. Licensee is solely responsible for the activity that occurs in the Account, and must keep its Account password secure. Licensee must notify Company immediately of any unauthorized use of its Account.
Use of App by Licensee App Users. When logged-into an Account, the Software enables you to publish a recruitment request for employees for a single or multiple events ("Recruitment Process"). The Software then interface with the App in order to match specific event with Licensees App Users requesting employment/recruitment and offering their services for such events. The Software further enables you to appeal or reject certain requests and offers. Usage of the App will be according to the App Term of Use. http://www.ubeya.com/privacy/app-terms. For the avoidance of doubt it is made clear that all information accessed through the App and/or the Account, including any mistakes or inability to reply to recruitment requests, anything relating to such recruitment and/or event or not being chosen to a certain recruitment shall be at the sole liability of Licensee.
Title & Ownership. COMPANY DOES NOT SELL OR TRANSFER TITLE IN THE SOFTWARE, OR ANY PART THEREOF, TO LICENSEE. 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 Licensee, and irrespective of any support and/or assistance Company may, will or had received from Licensee, or any third party on its behalf, with respect thereto), as well as any Updates thereto, if provided to Licensee pursuant to the EULA, shall remain Company’s sole and exclusive property. All Intellectual Property Rights evidenced by or embodied in and/or attached/connected/related to the Software, or part thereof, are and shall be owned solely and exclusively by 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.
Maintenance Services. Company shall provide Licensee with Updates if and as such Updates shall be generally made available by Company to its other licensees from time to time. Notwithstanding the above, Licensee shall promptly notify Company, in person, in writing or by electronic mail of any reproducible error (“Error”) detected in the Software and provide Company with sufficient details to diagnose and reproduce such Error. Company shall make reasonable commercial efforts to either correct such Error or provide a patch or work-around for such an Error as reasonably possible. Company may keep Licensee advised of any New Releases of the Software, or part thereof, if and as such New Releases are made available by Company, and Company shall, upon Licensee’s request, offer such New Releases for additional consideration, as shall be determined between the parties at the time. It is hereby understood that Company’s providence of the above Maintenance Services is contingent upon Licensee’s proper use of the Software for which it was intended, and shall not apply to damage caused by abuse, misuse, alteration, neglect, or unauthorized repair or installation, or by the use or attempted use of Software other than that supplied and supported by Company and strictly in accordance with the Documentation and instruction of Company, or in the event that the Software is altered, modified or adjusted in any manner by any third party other than Company or Error was caused due to use of Software with other Software or in a manner not intended for.
Fees & Payment.
License Fees. Licensee shall pay the amount of license fees due to Company as set forth in the Order Form, including monthly retainer fee. If not stated otherwise in the Order Form, Payment shall be due within thirty (30) days of receipt of Company’s invoice. Any payment or part of a payment that is not paid by Licensee to Company when due shall bear interest at the rate of 1.5% per month (but in no event more than the maximum rate allowed by applicable law), and shall constitute sufficient cause for Company to immediately suspend its performance hereunder and terminate the License. All payments shall be made in the currency stated in the Order Form in the payment form detailed therein, or by wire transfer to an account designated by Company if not stated otherwise in the Order Form.
Maintenance Fees. Company has the right to add Maintenance Fees in the future upon written notification to Licensee or in the Order Form.
Recruitment Fees. Company has the right to add Recruitment Fees in the future upon written notification to Licensee or in the Order Form.
Taxes. All prices payable by Licensee are exclusive of all taxes, including value added taxes and withholding taxes, where applicable. Licensee shall pay all taxes and duties (including applicable value added and/or withholding taxes at the prevailing rate on the date of invoice) associated with this EULA, excluding taxes on Company’s net income. If the Licensee is legally required to withhold any income or remittance tax from amounts payable to Company, then (a) the Licensee will promptly notify Company, (b) the amount payable will be automatically increased to the full extent required to offset such tax, so that the amount remitted to Company, net of all taxes, equals the amount stated in the invoice, and (c) the Licensee provide Company with the official receipt of payment of such taxes to the appropriate taxing authority. The Licensee will be responsible for payment of any withholding taxes and shall indemnify Company from and against any claim for unpaid withholding taxes, interest and penalties, which may be claimed by the applicable tax authorities relating to payment of such taxes.
Warranties. Company warrants that, to the best of its knowledge, it has the right to grant Licensee the license to use the Software. Company warrants that upon delivery, the Software shall substantially perform in accordance with the functional specifications in the product Documentation. Company does not warrant, however, that Licensee use of the Software will be uninterrupted or that the operation of the Software will be error-free or secure and is provided AS-IS, including with no compatibility or merchantability warranty. Company specifically states that Software is hosted on a third party servers and Company shall have no liability whatsoever for any interruption in the ability to make use of the Software or ability to access the Account, including any loss of databased from the Account or any other details saved therein. Licensee shall be fully and solely liable for backing up any information added into the Account or used with the Software. Company’s sole liability for any breach of this warranty shall be to use reasonable efforts, in Company’s sole discretion: (i) to replace or repair the defective Software; or (ii) to refund the price paid for the Software based on a pro rata straight line three (3) year depreciation basis. The foregoing warranties are contingent upon Licensee’s proper use of the Software, and shall not apply to damage caused by abuse, misuse, alteration, neglect, or unauthorized repair or installation, or by the use or attempted use of Software together with third party software or in any manner not intended for and strictly in accordance with the Documentation and instruction of Company. Only if Licensee informs Company of the defect in writing within ten (10) days of delivery, and provides evidence of the date the License was delivered, will Company be obligated to honor this warranty. Company will use reasonable commercial efforts to repair, replace or refund pursuant to the foregoing warranty. The foregoing constitutes Licensee’s sole and exclusive remedy for breach by Company of any warranties made under this Agreement.
Disclaimer of Warranty. THE WARRANTY SET FORTH ABOVE IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SOFTWARE, MAINTENANCE SERVICES OR ANY OTHER ITEMS PROVIDED HEREUNDER. COMPANY DOES NOT WARRANT THAT THE SOFTWARE OR ANY MAINTENANCE SERVICES, WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION OR THAT THE OPERATION OF THE SOFTWARE, INCLUDING ITS CONNECTION OR INTERACTION WITH THE APP, ARE WILL BE ERROR-FREE OR SECURE. COMPANY SPECIFICALLY STATES THAT SOFTWARE IS HOSTED ON A THIRD PARTY SERVERS AND COMPANY SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY INTERRUPTION IN THE ABILITY TO MAKE USE OF THE SOFTWARE OR ABILITY TO ACCESS THE ACCOUNT, INCLUDING ANY LOSS OF DATA FROM THE ACCOUNT OR ANY OTHER DETAILS SAVED THEREIN. LICENSEE SHALL BE FULLY AND SOLELY LIABLE FOR BACKING UP ANY INFORMATION ADDED INTO THE ACCOUNT OR USED WITH THE SOFTWARE. ALL THIRD PARTY RIGHTS AND LICENSES ARE PROVIDED “AS IS”.]IN ADDITION, EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE IS PROVIDED “AS IS,” AND COMPANY, ITS AFFILIATES AND SUBSIDIARIES, DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF COMPATIBILITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Without derogating from or excusing Licensee's obligations under this section, Company reserves the right (at Licensee's own expense), but are not under any obligation, to assume the exclusive defense and control of any matter which is subject to an indemnification by Licensee if Licensee shall choose not to defend or settle it. Licensee agrees not to settle any matter subject to an indemnification by Licensee without first obtaining Company's express approval.
Limitation of Liability.
IN NO EVENT WILL COMPANY BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER 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 COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL COMPANY'S LIABILITY UNDER, ARISING OUT OF OR RELATING TO THE EULA OR THE SOFTWARE (INCLUDING IN CORRELATION WITH THE APP), EXCEED THE AMOUNT PAID TO COMPANY DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT.
NOTWITHSTANDING THE ABOVE, IN NO EVENT WILL COMPANY BE LIABLE FOR ANY DAMAGES, LOSSES, OR ANY OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AS A RESULT OF OR RELATED TO: (I) THE RECRUITMENT OF EMPLOYEES, SERVICE PROVIDERS, CONSULTANTS OR PERSONNEL BY LICENSEE OR AS A RESULT OF ANY ASPECT OF EMPLOYEES, SERVICE PROVIDERS, CONSULTANTS OR PERSONNEL RECRUITMENT OR EMPLOYMENT BY LICENSEE INCLUDING ANY BUGS IN THIS PROCESS CAUSED OR RELATED TO THE SOFTWARE OR THE APP; (II) THE SOFTWARE, ITS USE OR INABILITY TO USE (WHETHER ALONE OR TOGETHER WITH THE APP) (OTHER THAN INFRINGEMENT OF INTELLECTUAL PROPERTY DETAILED IN SECTION 12 ABOVE) INCLUDING ANY DAMAGE THAT MAY BE CAUSED BY, DUE TO OR IN RELATION TO THE UNTIMED BOOKINGS, MISTAKES IN SALARIES, MISTAKES IN DATA INSERTED OR DAMAGES BY OR TO COMPANY OR BY OR TO THIRD PARTIES REGARDING SERVICES BOOKED USING THE SOFTWARE OR THE APP, INCLUDING DAMAGES CAUSED BY DATA, HOURS, SALARIES OR BOOKINGS OR INABILITY TO ENTER DATA, HOURS, SALARIES OR BOOK THROUGH THE SOFTWARE (INCLUDING IN RELATION TO THE APP), ANY CLAIMS OR DAMAGES BY OR TO LICENSEE OR THIRD PARTIES REGARDING SERVICES, INCLUDING BY LICENSEE APP USERS, PROVIDED OR TO BE PROVIDED USING THE SOFTWARE (INCLUDING IN CORRELATION WITH THE APP) OR ANY OTHER SERVICES RELATED THERETO; (III) LICENSEE’S APPEAL OR REJECT FOR CERTAIN REQUESTS AND OFFERS BY LICENSEE APP USERS AS PART OF THE RECRUITMENT PROCESS DESCRIBED IN SECTION 5 ABOVE.
WITHOUT DEROGATING FROM THE ABOVE, AND IN ORDER TO CLARIFY, LICENSEE SHALL BE SOLELY RESPONSIBLE AND LIABLE FOR THE RECRUITMENT AND/OR EMPLOYMENT OF THE EMPLOYEES SERVICE PROVIDERS, CONSULTANTS OR PERSONNEL AND ALL ACTIONS OR SERVICES PROVIDED OR NOT PROVIDED, BASED ON, IN RELATION TO OR WITH THE USE OF THE SOFTWARE (INCLUDING IN RELATION TO THE APP) AND ALL PAYMENTS OR RECRUITMENTS RELATED THERETO.
IF LICENSEE HAS A DISPUTE WITH ANY LICENSEE APP USER, LICENSEE AGREES THAT COMPANY IS NOT LIABLE FOR ANY CLAIMS OR DAMAGES ARISING OUT OF OR CONNECTED WITH SUCH A DISPUTE. COMPANY RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO MONITOR ANY SUCH DISPUTE.
THE PARTIES AGREE TO THE ALLOCATION OF LIABILITY RISK WHICH IS SET FORTH IN THIS SECTION.
Confidentiality. Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to the other party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including technical, marketing, financial, employee, planning, and other confidential or proprietary information (“Confidential Information”). The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by the EULA, 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 the Term and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. 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. The Receiving Party’s obligations under this Section 12 with respect to any Confidential Information of the Disclosing Party shall not apply to and/or shall terminate if and when the Receiving Party can document that such information: (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 (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under the EULA in connection with a legal proceeding; or (iii) 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. The obligations set forth in this Section shall survive termination of these EULA.
Term, Default and Termination.
Subject to full payment of the Licensee Fee set forth in the Purchase Order, this EULA and the License shall be effective for the term set forth in the Purchase Order ("Term"). At the end of the Term set forth in the Purchase Order, this EULA and the License shall automatically renew for one month periods, subject to full payment of Licensee Fee for such additional Term, as detailed in the Purchase Order, unless either Party provided notice to the other Party of its request to not have this EULA and the License renew for such additional term prior to its auto renewal or until terminated by either Party subject to Section 15.3 below.
An event of default shall be deemed to occur: (i) if Licensee breaches, or fails to perform, any provision of, or its obligations under Sections 4, 7 or 14; (ii) if either party fails to perform any other material obligation under these EULA and such failure remains uncured for more than thirty (30) days after receipt of written notice thereof; (iii) upon the institution of any proceedings by or against either party seeking relief, reorganization, or arrangement under any laws relating to insolvency, which proceedings are not dismissed within sixty (60) days; (iv) upon the assignment for the benefit of creditors, or the appointment of a receiver, liquidator, or trustee, for any of either party’s property or assets; or (v) upon the liquidation, dissolution, or winding up of either party’s business.
If an event of default occurs, the non-defaulting party, in addition to any other rights available to it under the law, may terminate this EULA and all licenses granted hereunder by written notice to the defaulting party. In any case of termination, Licensee shall not be entitled to receive repayment of any fees paid under this EULA or the Purchase Order, including of the pro rated part of any pre paid Licensee Fee for the remaining License Term, if any. Remedies shall be cumulative and there shall be no obligation to exercise a particular remedy.
Within fifteen (15) days after termination of these EULA, Licensee shall certify in writing to Company that, subject to Company sole consideration, all copies of the Software in any form, including partial copies within modified versions, have been destroyed or returned to Company.
Any sections of this Agreement that by their nature shall be deemed to survive termination of this Agreement, shall survive such termination including Section 7 (Title and Ownership), 10 and 11 (Warranty and Warranty Disclaimers), 12 (Indemnity), 14 (Confidentiality), 16 (Privacy), 17 (Limitation of Liability), and Section 19 (General) which shall survive termination of this Agreement.
Licensee’s End User Personal Data
Licensee hereby acknowledges and agrees that Company is acting as a data processor and will use any data, in particular personal data, supplied or disclosed to it by Licensee only in accordance with Licensee’s instructions and to provide the Software under this Agreement. Company will implement appropriate technical and organizational measures to protect the data provided by Licensee against unauthorized or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure.
Licensee hereby warrants and represents that it will provide all appropriate notices, obtain all appropriate informed consents, comply at all times with all applicable privacy and data protection laws and regulations (including the EU General Data Protection Regulation (“GDPR”)) and industry guidelines to which Licensee is subject, for allowing Company to use the data in accordance with this Agreement (including, without limitation, the provision of such data to Company, the transfer of such data by Company to its affiliates and subcontractors, including transfers outside of the European Economic Area).
To the extent that Licensee is subject to the GDPR, Licensee shall download the Company's Data Processing Agreement (“DPA”) available at https://www.ubeya.com/privacy/sw-dpa and return it signed to Company as described therein.
In the event Licensee fails to comply with any data protection or privacy law or regulation, the GDPR and/or any provision of the DPA, and/or fails to return an executed version of the DPA to Company, then: (a) to the maximum extent permitted by law, Licensee shall be fully liable for any such breach, violation, infringement and/or processing of personal data without a DPA by Company and Company's affiliates and subsidiaries (including, without limitation, their employees, officers, directors, subcontractors and agents); and (b) in the event of any claim of any kind related to any such breach, violation or infringement and/or any claim related to processing of personal data without a DPA, Licensee shall defend, hold harmless and indemnify Company and Company's affiliates and subsidiaries (including, without limitation, their 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.
Location Data. Certain features or functionality (“Features”) of the Software allow to collect or be dependent on data related to Licensee’s App User geographic location (“Location Data”). If Licensee wishes to use these Features, Licensee hereby represents and warrants that he provide appropriate notice and obtain the necessary consents (to the extent required)to provide or to make Licensee’s App User’s Location Data accessible to Company, on behalf of the Licensee.
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.
Independent Contractor. Licensor undertakes the furnishing of the License and performance of its obligations under this EULA as an independent contractor. There shall be no employer-employee relationship between Company’s employees and Licensee, and Licensee’s employees and Company.
Waiver. No waiver of rights arising under this EULA 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 these EULA shall operate as a waiver of any such right, power or remedy and/or prejudice any rights of such party.
Notices. Legal notices given by the parties to one another in connection with this EULA shall be provided by writing, prepaid mail, receipted courier service, or hand delivery to the party to be notified, at the address stated at the Order Form.
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.
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 or any other cause beyond its control.
Subcontracting and Assignment. Licensee shall not assign and/or subcontract any of its rights and obligations under this EULA, except with Company’s prior written consent. Company may assign or subcontract any of its rights and/or obligations hereunder at its sole discretion.
Severability. If any provision under this EULA 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 EULA will continue in effect.
Last updated: January, 2020.