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END–USER LICENSE AGREEMENT
IMPORTANT - PLEASE READ THIS DOCUMENT CAREFULLY: THIS END–USER LICENSE AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN IDIVIDUAL OR AN ENTITY) AND NOVO IDEA SOFTWARE LIMITED ("NOVIDEA") FOR USE OF NOVIDEA’S ONLINE SOFTWARE SOLUTIONS AND/OR ANY OTHER NOVIDEA SERVICE AVAILABLE VIA THE WEBSITE (COLLECTIVLY: THE “SERVICE”). BY AND UPON CLICKING THE "I ACCEPT" BUTTON AND/OR INSTALING, DOWNLOADING, COPYING OR USING THE SOFTWARE AND/OR ANY COMPONENT OF THE NOVIDEA SYSTEM FOR ANY PURPOSE, YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF ANY LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THE AGREEMENT, IN WHICH CASE THE TERMS "YOU" OR "YOUR" HEREIN SHALL REFER TO SUCH ENTITY. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THE AGREEMENT, YOU MAY NOT USE THE SERVICE AND/OR INSTALL ANY COMPONENT OF THE NOVIDEA SYSTEM.
1. Definitions. The following terms shall have the meaning prescribed therewith:
1.1. "Account" means your account at Salesforce.com.
1.2. "Business Day" means an official working day at the country where the official registered office of a Party is located.
1.3. "Business Hours" means 09:00 – 17:00 EDT;
1.4. “Confidential Information” means information regarding the business, proprietary technology, products, or services, existing or under development, of the disclosing Party or of its licensors, suppliers or business partners, including, without limitation, data, know-how, algorithms, drawings, communication protocols, programs, software, specifications, modifications, applications, designs and trade secrets, technical, marketing, financial, employee and planning information, provided that such information is in writing or other tangible form and is clearly marked as “proprietary” or “confidential” when disclosed to receiving Party, or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary by the disclosing Party, or if such information is not in tangible form, that such information is identified as “proprietary” or “confidential” when disclosed and summarized in a written document which is marked “proprietary” or “confidential” and is delivered to the receiving Party within 30 (thirty) days after date of disclosure. Notwithstanding the above, Confidential Information does not include: any information that is or through no fault of the receiving Party has become, generally available to the public and/or was disclosed to the receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions;
1.5. “Documentation” means any manual and/or technical guide and/or publication, relating to the Service;
1.6. "Effective Date" means the date upon which you clicked the "I accept" button and/or installed, downloaded, copied or used the Service, the Software or NOVIDEA System and/or any component thereof for any purpose;
1.7. “License Term(s)” means the time period(s) during which Users paying subscription fees may use the Service;
1.8. “NOVIDEA System” means any of NOVIDEA’s proprietary data, designs, interfaces, techniques, processes, know-how, algorithms, Software, technologies, products, hardware, equipment, and any other tangible and intangible material involved in provision of the Service;
1.9. "Party" or "Parties" means Novidea or you or both, as the case may be.
1.10. "Software" means the object code version of the validly licensed software applications distributed by NOVIDEA, including all related documentation, materials and items provided pursuant to the Agreement and any modified versions, updates, upgrades, additions and copies thereof, unless provided under a separate written agreement;
1.11. “User(s)” means any individual authorized by you to use the Service;
1.12. "User(s) Data" means any data, information (including without limitation personally identifiable information), content, templates, forms, or material provided, made available, or submitted by you to the Service and/or retrieved by the Service from your Account;
1.13. “Website” means http://www.novideasoft.com or any other website designated by NOVIDEA.
2. License. Subject to the terms and conditions of this Agreement, NOVIDEA hereby grants to you a non-exclusive, non-sub licensable, non-transferable, subscription bearing license to access and use the Service by such number of User(s) subscribed and paid for by you, on computers within your internal network, on licensed platforms and configurations, in accordance with the Documentation and solely for your internal business purposes of creating reports and/or other output available and permitted by the Service. To avoid any doubt, all rights not expressly granted under this Agreement are reserved by NOVIDEA and its licensors. Please be advised that the Service is powered by Salesforce.com and in order to obtain the Service you must be a subscriber to Salesforce.com.
3. Additional Users. Only upon NOVIDEA’s acceptance of new order submitted by you, the Service shall be made available to additional Users on the terms and conditions set forth herein and in the accepted new order and for the duration of the preexisting (initial or renewal) subscription term. You will be responsible for payment of any applicable additional subscription fees in full as of the month in which your new order is accepted by NOVIDEA.
4. License Limitations. You may not, under any circumstances (1) license, sublicense, sell, resell, use the Service for the benefit of any third party and/or commercially exploit, transfer, assign or make the Service, NOVIDEA System or any related content available to any third party:, unless NOVIDEA has authorized such use or act in advance and in writing; (2) modify, port, adapt, make derivative works based upon the Service or any related content, reverse engineer, decompile disassemble or otherwise attempt to discover the source code of any Service's and/or NOVIDEA System's component; (4) use or access the Service for benchmarking or competitive purposes; or (5) attempt in any way to misuse the License, including, without limitation by unbundling without explicitly being permitted to by NOVIDEA, components of the Service and/or the NOVIDEA System; or create Internet “links” to the Service or “frame” or “mirror” any related content thereof on any other server and/or wireless and/or Internet-based device; or interfere in any manner with the Service and/or NOVIDEA System.
5. Intellectual Property Rights. NOVIDEA and/or its licensors fully own all right,
title and interest in and to the Service and/or the NOVIDEA System and/or NOVIDEA Technology and/or any related content and/or component thereof, including all related patents, registered designs, trademarks and service marks (whether registered or otherwise), copyright, moral rights, database rights, design rights and other intellectual property rights, including those rights subsisting (in any part of the world) in inventions, drawings, performances, Software, semiconductor topographies, improvements, discussions, business names, goodwill and the style of presentation of goods or services and in the applications for the protection thereof throughout the world, and any information provided by you or any other party in connection with the Service including, but not limited to, enhancement requests, recommendations, ideas, suggestions. All names and logos associated with the Service are trademarks of NOVIDEA or third parties.
6. User(s) Data.
6.1. You are solely responsible for User(s) Data, its integrity, accuracy, quality, reliability, compliance with legal requirements, and for any intellectual property ownership or right to use it. Without prejudice to the above, you will not make available to the Service or NOVIDEA System, in any way, whether by posting, transmitting or any other way any User(s) Data that: (a) infringes or violates any rights, law or regulation, including, but not limited to, such that relate to privacy, publicity or intellectual property; or (b) contains any viruses or programming routines intended to damage, stealthily intercept or expropriate any system, data or personal information. NOVIDEA is under no obligation to review User(s) Data for accuracy or potential liability and does not own User(s) Data.
6.2. You retain all right, title and interest in and to the User(s) Data. Without prejudice to the aforesaid, you grant to NOVIDEA all necessary permits, authorizations, licenses and rights for NOVIDEA to provide the Service to you or as required by any applicable law, regulation, treaty or contract. You will be solely responsible for providing all User(s) Data required for the proper operation of the Service. NOVIDEA will not knowingly use or access any User(s) Data except as necessary to provide the Service and/or as otherwise authorized by you and/or as required by any authorized governmental agency.
7.1. Each Party (the "Receiving Party") will: (1) protect Confidential Information of the other Party (the "Disclosing Party") from any unauthorized use, access, or disclosure, in the same manner it protects its own confidential or proprietary information of a similar nature and with no less than reasonable care; (2) keep in strict confidentiality any and all Confidential Information of the Disclosing Party; (3) not use any Confidential Information of the Disclosing Party for any purpose other than for the execution of this Agreement; and (4) disclose the Confidential Information of the Disclosing Party only to its employees or contractors who are subject to a confidentiality obligation no less restrictive than the confidentiality duty provided in this section.
7.2. Without derogating from the aforesaid, notwithstanding, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party only to the extent that such disclosure is (1) approved in advance and writing by the Disclosing Party; (2) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (3) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing, and at the Disclosing Party’s request and expense, cooperates with the Disclosing Party in any lawful action to contest or limit the scope of such required disclosure.
7.3. Upon expiration or termination of this Agreement for any reason, the Receiving Party shall promptly return and hand over to the Disclosing Party all Confidential Information of the Disclosing Party and not retain any copies (whether on magnetic media or otherwise) of such Confidential Information. For avoidance of any doubt all copies of such Confidential Information shall be permanently erased by the Receiving Party that will certify in writing that it has fully complied with its obligations under this Section 7.3.
7.4. Without derogating from the aforesaid, you may distribute copies of the Documentation only to User(s) in connection with use of the Service in accordance with the terms and conditions of this Agreement, and provided that such copies contain the same copyright and other proprietary notices that appear on and in the Documentation.
8. Support. NOVIDEA will provide you commercially reasonable technical assistance ("Support") for commercially reasonable number of events of a reproducible non-conformity in the Service causing the basic functions of the Service not to operate in substantial conformance with the applicable Documentation. The Support shall be provided during Business Hours, subject to prompt execution of all your obligations under this Agreement, and receipt by NOVIDEA of an applicable support call via email to email@example.com or telephone +1 857 254 8397. NOVIDEA is under no obligation to Support Beta unpaid versions of the Services, and such Support, if at all, shall be provided at its sole discretion. You are solely responsible for providing, at your own expense, all network access to the Service, including, without limitation, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use the Service.
9. Subscription Fees and Renewal. Subscription fees to be paid by you to NOVIDEA for the Service are described in the associated NOVIDEA’s quote or invoice. Fees for the Service in case of renewal will be in accordance with the fees in effect at time of renewal, as determined by NOVIDEA at its sole discretion and notified to you at least 30 days prior to expiry of the License Term or any renewal thereof, times by the then-current number of total User(s) Licenses. Other services will be charged on an as-quoted basis. NOVIDEA’s fees are exclusive of all taxes, levies, or duties imposed by any authority, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on NOVIDEA’s income. All amounts are quoted in and must be paid in USD.
10. Billing and Payment. You are responsible to provide NOVIDEA with complete and accurate billing and contact information, and to promptly notify NOVIDEA in the event of any change thereof. NOVIDEA will issue an invoice to you on or shortly after you have confirmed your wish to continue using the Service following expiry of the trial period and on or before the expiration date for renewal periods. All amounts specified in the invoice are due within 30 days of your receipt of such invoice. Payment obligations are non-cancelable without any exception and all amounts paid are nonrefundable. NOVIDEA may invoice you for additional applicable fees for any Additional User(s) added to the service or allowed to use it without being paid for by you. We urge you to contact us in writing within 30 days of receiving an invoice if you are in the opinion that it is incorrect. Overdue amounts shall bear interest in a rate of 1.5% per month but no more than the maximum permitted by law, plus all expenses of collection. If you or NOVIDEA initiates termination of this Agreement, you will be obligated to pay the balance due on your account. NOVIDEA reserves the right to impose a reconnection fee in the event the Service is suspended.
11. 60-Day Free Trial. NOVIDEA offers a 60-day no-cost trial of its Service with no further obligation. At the end of your 60-day free trial, you must pay NOVIDEA the applicable subscription fees to continue use of the Service. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Please be advised that any User(s) Data or other data you enter into the Service during your trial period, including without limitation, any customizations made to any component of the Service will not be saved and be permanently lost, unless you purchase a subscription to the Service (provided it is at least of the same level – e.g. not a downgrade Service) or export such data, prior to expiry of the trial.
12. Term. This Agreement commences on the Effective Date and will terminate upon expiration of the trial period, unless you shall subscribe for the Service upon termination of the trial period and in such event this Agreement will remain in effect for a period of 12 (twelve) months thereafter (“Initial Term”), unless terminated earlier by either party pursuant to this Agreement. Thereafter this Agreement will automatically renew for additional one (1) year periods (each a “Renewal Term”), unless terminated earlier by either Party pursuant to this Agreement or unless either Party gives notice of non-renewal to the other Party by no later than 30 days before the end of the Initial Term or the then-current Renewal Term. Notwithstanding the aforesaid, NOVIDEA reserves the right to terminate any trial period, at any time without notice. The Initial Term together with any and all Renewal Terms is collectively referred to as the “Term.”
13. Termination due to Material Breach. Notwithstanding any other provision herein, either Party may terminate this Agreement by delivering a written termination notice to the other Party (“Default Notice”), if the other Party materially breaches this Agreement and has not cured such breach within thirty (30) days following its receipt of the Default Notice.
14. Effect of Termination. Upon termination of this Agreement for any reason: (1) any amounts owed to NOVIDEA under this Agreement will become immediately due and payable; (2) each Party will return to the other all property of the other Party in its possession or control, and (c) NOVIDEA will remove all User(s) Data from the NOVIDEA System and all your access to or use of the Service will be immediately suspended. The rights and duties of the Parties under Sections 4, 5, 6, 7, 10, 14, 16, 17, 18 and 19 will survive the termination or expiration of this Agreement.
15. Suspension. In the event of your breach of this Agreement (inclusive of your failure to pay any undisputed amount payable under this Agreement within 14 days of its due date), NOVIDEA shall have the right to suspend or terminate your access to and use of the Service until you cure such breach, without derogating from any other right and/or remedy of NOVIDEA under this Agreement and/or any applicable law.
16. Representations and Warranties.
16.1 Each Party represents and warrants that it has the full legal power and authority to enter into this Agreement.
16.3. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NOVIDEA AND/OR ITS SUPLIERS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT, AND THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” AND “AS-AVAILABLE” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY NOVIDEA AND/OR ITS SUPLIERS.
17.1. AS YOUR EXCLUSIVE REMEDY AGAINST NOVIDEA OR ANY OF ITS LICENSORS OR SUPPLIERS FOR ANY THIRD PARTY’S INFRINGEMENT CLAIM, NOVIDEA WILL DEFENED YOU AT ITS OWN EXPENSE AND HOLD YOU HARMLESS FROM AND AGAINST ANY AND ALL THIRD PARTY’S ACTION BASED ON THE CLAIM THAT THE SERVICE, AS PROVIDED, INFRINGES A UNITED STATES PATENT, COPYRIGHT OR TRADEMARK ONLY, PROVIDED THAT YOU WILL (1) PROMPTLY GIVE NOVIDEA: (a) A WRITTEN NOITCE OF SUCH CLAIM; (b) SOLE CONTROL OF THE DEFENSE AND SETTLEMENT OF SUCH CLAIM; (c) ALL AVAILIBLE INFORMATION AND ASSISTANCE; (2) NOT ADMIT TO ANY FACT OR ALLEGATION WITHOUT OBTAINING NOVIDEA'S PRIOR WRITEN CONSENT. WITHOUT DEROGATING THE AFORESAID, NOVIDEA MAY, AT ITS DISCRETION AND EXPENSE, AND AS YOUR SOLE REMEDY UNDER THIS AGREEMENT: (1) PROCURE YOUR RIGHT TO CONTINUE USING THE SERVICE; (2) REPALCE OR REMOVE THE INFRINGING COMPONENT FROM THE SERVICE WHILE MAINTAINING COMPARABLE FUNCTIONALITY OF THE SERVICE; (3) IMMEDIATELY TERMINATE THIS AGREEMENT AND REFUND ANY AMOUNT PRE-PAID ON ACCOUNT OF THE REMAINDER TERM OF THIS AGREEMENT. NOTWITHSATNDING THE AFORESAID NOVIDEA WILL NOT BE RESPONSIBLE FOR ANY INFRINGMENT THAT ARISES OUT OF YOUR BREACH OF THIS AGREEMENT OR USE OF THE SERVICE AFTER IT HAS BEEN MODIFIED BY YOU AND/OR A THIRD PARTY AND/OR COMBINED WITH ANOTHER COMPONENT WITHOUT NOVIDEA’S PRIOR WRITTEN CONSENT OR USE OF THE SERVICE IN A MANNER THAT INFRINGES THIRD PARTIES RIGHTS, INCLUDING, BUT NOT LIMITED TO, IN FORMS, SOFTWARE, ETC.
17.2. YOU SHALL INDEMNIFY AND HOLD HARMLESS NOVIDEA AND/OR ITS LICENSORS AND/OR SUPPLIERS AND/OR AFFILIATES AND/OR SUBSIDIERIES AND/OR PARENT CORPORATIONS AND/OR SHAREHOLDERS AND/OR ANYONE ACTING ON THEIR BEHALF, FROM AND AGAINST ANY AND ALL COSTS, DAMAGES, LOSSES AND EXPENSES (INCLUDING LEGAL COSTS) THAT OCCUR IN CONNECTION WITH (I) ANY BREACH OF YOUR REPRESENTATIONS AND WARRENTIES; (II) NOVIDEA'S ACCESS TO, HANDLING OF, AND USE OF USER'S DATA OR YOUR CONFIDENTIAL INFORMATION; (III) NOVIDEA'S ACCESS TO YOUR ACCOUNT. NOTWITHSTANDING THE AFORESAID, INDEMNIFICATION IN CONNECTION WITH THIRD PART’S CLAIMS ARE SUBJECT TO NOVIDEA GIVING YOU: (1) A WRITTEN NOITCE OF SUCH CLAIM; (2) SOLE CONTROL OF THE DEFENSE AND SETTLEMENT OF SUCH CLAIM; (3) ALL AVAILIBLE INFORMATION AND ASSISTANCE.
18. Limitation of Liability
18.1. EXCEPT AS PROVIDED IN SECTION 17 HEREIN ABOVE, IN NO EVENT WILL NOVIDEA BE LIABLE FOR ANY DAMAGES, COSTS AND/OR EXPENSE OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF AND/OR IN CONNECTION WITH THE SERVICE AND/OR THIS AGREEMENT.
18.2. IN NO EVENT WILL NOVIDEA HAVE LIABILITY TO YOU FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, OR THIS AGREEMENT.
18.3. IN NO EVENT WILL NOVIDEA’S AGGREGATE LIABILITY PURSUANT TO THIS AGREEMENT, EXCEED THE AMOUNTS PAID OR PAYABLE BY YOU UNDER THIS AGREEMENT FOR ONE FULL YEAR.
18.4. NO DELAY OR FALIURE IN PREFORMANCE BY EITHER PARTY WILL BE CONSTRUED AS A BREACH OF THIS AGREEMENT IF CAUSED BY EVENTS OR CIRCUMSTANCES BEYOND THAT PARTY’S REASONABLE CONTROL, INCLUDING WITHOUT LIMITATIONS, ACT OF GOD, GOVERNMENTAL ACTIONS, FLOOD, FIRE, EARTHQUAKES, CIVIL UNREST, TERRORISM, VANDALISM, STRIKES, AND TELECOMMUNICATIONS OR NETWORK FAILIURES OR DELAYS.
19.1. This Agreement together with any associated NOVIDEA’s quote and/or invoice, comprises the entire agreement between you and NOVIDEA, and supersedes all prior or contemporaneous negotiations, discussions and/or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
19.2. No text or information set forth on any other purchase order, preprinted form or document (other than an associated NOVIDEA’s quote or invoice, if applicable) will modify the terms and conditions of this Agreement.
19.3. If any provision of this Agreement is deemed invalid or unenforceable by any country and/or competent court or government agency having jurisdiction, that particular provision will be deemed modified to the extent necessary to make the provision valid and enforceable and the remaining provisions will remain in full force and effect.
19.4. This Agreement may not be assigned by you without the prior written approval of NOVIDEA, (such approval not to be unreasonably withheld) but may be assigned without your consent by NOVIDEA in connection with (1) any reorganization (including merger, consolidation, or similar transaction) involving (directly or indirectly) involving and/or a sale, lease, license, or other disposition of all substantially all of NOVIDEA’s assets.
19.5. This Agreement is binding on you as well as your employees, employers, contractors and agents, and on any successors and assignees.
19.6. The failure of a party to enforce any right or provision under this Agreement shall not constitute a waiver of that or any future right or provision unless acknowledged and agreed to by that party in writing.
19.7. The parties are independent contractors and this Agreement does not create any joint venture, partnership, employment, or agency relationship between you and NOVIDEA and/or its suppliers and/or affiliates and/or subsidiaries and/or parent corporations and/or anyone acting on their behalf.
19.8. This Agreement shall be governed by Israeli law without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement and/or the Service will be subject to the exclusive jurisdiction of the Israeli courts located in Tel Aviv.
19.9. All notices, required under this Agreement must be delivered in writing by courier, facsimile, or by certified or registered mail (postage prepaid and return receipt requested) to the other Party at its address set forth in this Agreement, and shall be deemed to have been served upon receipt or three (3) Business Days after the date of posting if sent by registered mail, whichever occurs earlier, or if delivered by hand on the date of delivery or if sent by facsimile one (1) Business Day after the date of transmission, provided no error message was received and that a confirmation copy of the transmission is sent to the recipient by registered post in the manner set out above. Failure to send a confirmation copy will invalidate the service of any facsimile transmission.
19.10. Any notice to NOVIDEA will be delivered to – P.O.B 1935 40 Haatzmaut st. Yahud 56000, Israel.