PLEASE READ THE TERMS AND CONDITIONS OF THIS SUBSCRIPTION AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE CLICKING ON THE “ACCEPT” BUTTON AND/OR USING THE SERVICES (AS DEFINED BELOW), IN WHICH CASE YOU, AND IN CASE YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH COMPANY OR OTHER LEGAL ENTITY (“CUSTOMER”), WILL BE BOUND BY THIS AGREEMENT BY AND BETWEEN THE CUSTOMER AND DIALERO, INC. (“COMPANY”). PLEASE BE AWARE THAT ANY USE OF 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 THIS AGREEMENT, PLEASE DO NOT CLICK ON THE “ACCEPT” BUTTON AND/OR USE THE SERVICES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE POWER AND AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT IS EFFECTIVE WHEN YOU CLICK “I ACCEPT” BELOW OR BEGIN USING THE SERVICES, THE EARLIER (“EFFECTIVE DATE”).##1. General##This Agreement governs the Customer’s use of Company's software as a service (SaaS) native Salesforce cloud based solution designed to enable voice connectivity (the “Solution”), all maintenance services of the Solution the Company may offer from time to time, any support provided pursuant to this Agreement, and other related services the Company may offer from time to time (collectively, the “Services”), which subject to the conditions of this Agreement, will be available to the Customer on a subscription basis. ##2. Grant of Rights; Prohibited Use##2.1. Subject to the terms of this Agreement, Company hereby grants to Customer, during the Term (as defined below), solely for the Customer's internal business operations and for non-commercial purpose, a limited, non-commercial, non-perpetual, non-exclusive, non-transferable right to access and use the Services for the number of designated users subscribed for in the subscription registration. If Customer wishes to add additional Users to its account on the Services (“Additional Use”), Customer should contact Company, and Company shall make the Service available for the Additional Use on the terms and conditions set forth in this Agreement. With respect to Additional Use, the term of any additional Users’ access to the Service will be coterminous with the remaining term of Customer’s access to such services. Customer will be responsible for any additional fees for any usage of the Services exceeding the authorized number of Users. ##2.2. Without derogating from Section 2.1, the Customer shall not: (a) attempt to copy, modify, duplicate, imitate, reproduce, create derivative works from, or download, all or any portion of the Services; and/or (b) attempt to decompile, reverse engineer or otherwise attempt to discover any source code from, all or any part of the Services; and/or (c) sell, rent, lease, transfer or otherwise commercially exploit the Services or make the Services available to any third party; and/or (d) attempt to obtain unauthorized access to the Services; and/or (e) use the Services for advertising or solicitation to buy or sell any products and/or for creating, sharing or disseminating unsolicited messages or notices; and/or (f) use the Services in order to create or disseminate any viruses, worms, trojan horses or other malicious software; and/or (g) use or launch any data mining or any similar data gathering and extraction tools, in connection with the Services; and/or (h) use the Services in any manner that damages, disables, overburdens, or impairs the Services, or Company's systems or servers, or the cloud or other platform on which the Services operates, and/or otherwise interferes with any other party's use and enjoyment of the Services, and/or (i) access the Services by any means other than through the interface that is provided by Company for accessing and use of the Services; and/or (j) permit or assist any third party to do any of the foregoing. Customer shall promptly notify Company of any breach of this Agreement of which it becomes aware. ##3. Registration to Service##Customer acknowledges that certain functionalities of the Services require registration in order to be able to enjoy such functionalities. Company reserves the right to change which functionalities require registration. The registration process may require Customer to provide information regarding (but not limited to) its first and last name, its e-mail address, its phone number and/or other information. By performing the registration, Customer represents and warrants that all registration information it submits is accurate and truthful and that it agrees to update and maintain the accuracy of such information. ##4. Customer Data##4.1. Customer represents and warrants that it has the adequate rights for the submission of all data and content submitted by it through the Services, including without limitation any identifying or non-identifying information related to the Customer or third parties (“Customer Data”) and for any use made of such Customer Data through the Services. Customer shall have the exclusive responsibility and liability for the Customer Data and any acts or omissions in respect thereof through the Services, including without limitation, for the legality, reliability, authenticity, integrity, accuracy, and completeness of the Customer Data. ##4.2. Customer acknowledges that the Company does not control or monitor, is not responsible for, and makes no representations or warranties, express, implied or otherwise in respect of, the Customer Data that any user of the Services makes available through the Services. Company reserves the right to remove any Customer Data which it deems to be in violation with any of the terms set forth herein, at Company's sole discretion.##4.3. By using the Services, Customer gives its consent to Company, and grants Company with a worldwide, royalty-free, and non-exclusive license, to collect such Customer Data, store such Customer Data in the Company's servers or third party's external servers which are utilized for the provision of the Services, and to use and/or duplicate such Customer Data as required in order to provide it with the Services. The Company shall also be entitled to compile statistical information related to the performance or use of the Services, and may freely use, including without limitation make such information publicly available, provided that such information does not incorporate any Customer Data. ##5. Third Party Providers##5.1. Customer acknowledges that the Company utilizes the services and infrastructure of third party vendors, such as Salesforce.com amongst others, in order to provide the Services (“Third Party Services”), and that the continuing availability and access to the Services is dependent on the continuing availability to Company of applicable components and interfaces of the Third Party Services. Third Party Services may be utilized, amongst others, for storage of Customer Data on external servers of the providers of such Third Party Services. Customer understands that Company has no control over the providers of Third Party Services and shall not be required to enforce the compliance of such Third Party Services providers with the terms of this Agreement. Once Customer Data is transmitted outside of the Third Party Service and into the Service, any provider of Third Party Services shall no longer be responsible for the privacy, security or integrity of such Customer Data outside the Third Party Services. ##5.2. Without derogating from the terms of this Agreement, Customer acknowledges and agrees that its right to make use of such Third Party Services as part of its use of the Services is subject to and governed by the applicable terms and conditions of such Third Party Services. Other than the applicable open source components utilized in the Services, in no event, shall the Services (or any part thereof) be deemed to be “open source” software. ##6. Charges and Payment##6.1. Use of any of, or certain portions of, the Services may be subject to payment of certain fees in an amount, covering periods of usage and a number of Users, as shall be made known to Customers by Company in the registration process or by any other means chosen by the Company (“Services Fees”). Without derogating from other provisions hereof, paid portions of the Services shall only be available, and rights granted hereunder in respect thereof shall only be granted, for periods and for the number of Users in respect of which the Customer has paid the applicable Services Fees (for avoidance of doubt, denial of use of the Services due to non-payment of Services Fees during any period shall not relieve Customer of its obligations to pay Services Fees for which it has contracted). ##6.2. Payment in respect of the Initial Subscription Term shall be due prior to the commencement of the Initial Subscription Term. Payment in respect of any Renewal Period shall be due within 7 days of the commencement of such Renewal Period. Interest shall accrue on any due amounts at a monthly rate equal to the higher of 1% or the highest rate permitted by law, commencing on the due date of such amount and continuing until such amount and all interest thereon is fully paid.##6.3. All amounts and fees due under this Agreement: (a) shall be payable in United States Dollars; (b) are non-cancellable and non-refundable; and (c) are exclusive of any sales, value added and other similar taxes, which shall be added to the Service Fees in the appropriate rate and borne by Customer. ##6.4. The Company at its sole discretion shall be entitled to change the Service Fees from time to time. New rates shall apply to any Renewal Period, commencing following the date of the provision of a notice with respect to such new rates to the Customer.##6.5. Company may make a free trial version of paid portions of the Services for periods of time specified by the Company (the “Trial Period”). In the event Customer has registered for a trial use of the Service, Customer may access the Service for the trial period.##7. Proprietary rights##7.1. Company retains all right, title and interest, including without limitation all patents, copyrights, trade secrets, trademarks, and any other intellectual property (whether registered or unregistered) in and to the Services and/or the technology underlying the Services, including any improvements, updates, upgrades, error-corrections or other modifications thereto, and any derivative work based thereon, regardless of their creator. Except for the rights expressly granted to Customer hereunder, this Agreement does not grant Customer any rights to, or in, company’s intellectual property (including without limitation any portion of the Services and/or any documentation ancillary thereof).##7.2. Without derogating from the above, the Company shall be the sole and exclusive owner of all rights to any and all feedback provided by Customers or their Users, and any ideas, inventions and/or improvements (whether protectable by any intellectual property protection or not) conceived or derived or resulting from such Feedback or embodied therein (“Feedback”). Customer irrevocably assigns to the Company any rights that Customer may have in such Feedback, and to the extent such rights may not be assigned, Customer provides Company a royalty free, perpetual, worldwide, exclusive license to use such Feedback for any purpose, including commercial purposes. ##7.3. Subject to the above, the parties agree that all data and information collected by the Company (including the Customer Data) and output generated through, or produced by the Services, including any data, information, reports, notes, records, charts, statistics, conclusions, analyses, lists and recommendations, relating to Customer or its Users (collectively, the “Output”), shall be the sole and exclusive property of Customer and Company shall not have any right in connection therewith or any rights to use such Output. Company shall allow Customers to download all app custom objects data applicable to them in Microsoft Excel form during the Term. ##8. Confidentiality ##8.1. Each party may be provided with, given access to, or exposed to, Confidential Information of the other party in connection with this Agreement. “Confidential Information” shall mean any information and data of a proprietary or confidential nature, whether in oral, written, graphic, machine-readable form, or in any other form, including but not limited to proprietary, technical, development, marketing, sales, price, operating, performance, cost, know-how, business and process information, methods, procedures, data, computer programming techniques and computer code, any information regarding suppliers, licensors, licensees, partners, affiliates, customers, potential customers or others, and all record bearing media containing or disclosing such information and techniques, which is disclosed or made available by one party to the other party pursuant to this Agreement or to which the other party is exposed or given access in connection with this Agreement, whether or not marked as “Confidential”. Without derogating from the generality of the foregoing, Confidential Information of the Company shall include also the details of the Services, and the results of any performance tests of the Services and any work products of the Services, and Confidential Information of the Customer shall include also the Customer Data. ##8.2. Confidential Information shall however not include any information that: (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) was in the receiving party's lawful possession before the disclosure, as evidenced by applicable documentary evidence; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.##8.3. Each party shall hold the other party's Confidential Information in strict confidence, shall not disclose or make such Confidential Information available to any third party other than as specified in the below section, and shall not use such Confidential Information for any purpose other than for performing its obligations under this Agreement. Notwithstanding the above, either party may disclose Confidential Information of the other party if compelled to do so by a court or authority of competent jurisdiction, provided it provides the other party reasonable notice of such disclosure and opportunity, to the extent legally permitted, to attain a protective order or other remedy. ##8.4. Each party shall be entitled to disclose the other party's Confidential Information only to its officers, directors, employees and consultants (“Representatives”), on a need to know basis, provided that such Representatives are bound by confidentiality obligations of at least scope of this Agreement, and provided further that such party shall be responsible for and liable to any breach or violation of the this Agreement by such Representatives.##9. Company's Obligations ##The Company undertakes to (a) comply with all applicable laws and regulations with respect to its activities under this Agreement; (b) use commercially reasonable endeavours to make the Services available within the time frame set forth under Exhibit A hereto; and (c) provide the Services in a thorough and professional manner, consistent with industry standards (collectively, the “Services Warranty”); In the event of a non-conformance of the Services to the Services Warranty, Company will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly, 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 non-compliance with the Services Warranty.##10. Customer's obligations##Without derogating from any other obligation of the Customer pursuant to this Agreement, the Customer undertakes to: (a) provide the Company with all necessary cooperation in relation to this Agreement and in order to allow the Company to render the Services; and (b) comply with Service’s technical documentation and all applicable laws and regulations with respect to its activities under this Agreement and its use of the Services; and (c) to the extent required, obtain and maintain all necessary licences, consents, and permissions necessary for the Company to perform its obligations under this Agreement; and (d) keep its passwords for the Services secure and confidential; and (e) be responsible for Customer Data and all activity in its account and/or of any of its Users in the Service.##11. Warranty##11.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ASIDE FROM THE SERVICES WARRANTY THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND WHATSOEVER. ALL EXPRESS, IMPLIED AND/OR STATUTORY WARRANTIES IN CONNECTION WITH THE SERVICES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES REGARDING SECURITY, SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, ACCURACY AND PERFORMANCE OF THE SERVICES, 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. FOR AVOIDANCE OF DOUBT THE COMPANY MAKES NO WARRANTIES WHATSOEVER FOR ANY THIRD PARTY SERVICES AND/OR THIRD PARTY SOFTWARE.##11.2. For avoidance of doubt, and notwithstanding anything herein to the contrary, the Company does not warrant that the Services will operate error free or without interruption or bugs, 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 Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities. Additionally, notwithstanding anything herein to the contrary, the Company does not warrant that the Services will meet the Customer's requirements or expectations, that any results shall be obtained from the use of the Services, that any output of the Services shall be correct, or error free, and any use or reliance upon the Services shall be at the Customer’s sole risk. ##12. Limitation of Liability##12.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT: (A) IN NO EVENT SHALL THE COMPANY BE LIABLE, WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, OR OTHERWISE, FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, DEPLETION OF GOODWILL, CORRUPTION OF DATA OR INFORMATION, ECONOMIC LOSS, OR FOR ANY SPECIAL, INDIRECT PUNITIVE, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER SIMILAR LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES, ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT AND/OR THE SERVICES; AND (B) IN NO EVENT SHALL THE COMPANY'S TOTAL LIABILITY, IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT AND/OR THE SERVICES: (I) FOR EACH CLAIM, EXCEED THE TOTAL SERVICES FEES PAID BY CUSTOMER FOR THE SERVICES DURING THE 3 MONTHS PERIOD PRECEDING THE DATE ON WHICH THE CLAIM LEADING TO LIABILITY AROSE, AND (II) FOR ALL CLAIMS IN THE AGGREGATE EXCEED THE TOTAL SERVICES FEES PAID BY CUSTOMER FOR THE SERVICES HERUNDER. ##12.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AND WITHOUT DEROGATING FROM THE GENERALITY OF THE ABOVE, COMPANY SHALL HAVE NO LIABILITY WHATSOEVER IN CONNECTION WITH (A) ANY THIRD PARTY SERVICES, INCLUDING WITHOUT LIMITATION THE USE BY PROVIDERS OF THIRD PARTY SERVICES OF CUSTOMER DATA. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY IS NOT AND SHALL NOT BE RESPONSIBLE FOR THE AVAILABILITY, PERFORMANCE OR SECURITY OF ANY SUCH EXTERNAL THIRD PARTY SERVICES 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/OR ANY OTHER PROBLEM IN THIRD PARTY SERVICES; AND/OR (B) ANY DELAY OR FAILURE IN PERFORMANCE OR NON-AVAILABILITY OF THE SERVICES RESULTING FROM CAUSES BEYOND THE COMPANY’S REASONABLE CONTROL, INCLUDING, BUT NOT LIMITED TO, INTERNET FAILURE, NETWORK OR COMPUTER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, OR ACTS OF PROVIDERS OF THIRD PARTY SERVICES.##13. Term and termination##13.1. This Agreement shall commence on the Effective Date and shall continue for the initial subscription term subscribed for in the registration process (“Initial Subscription Term”) or terminate following the free trial term, as applicable. Following the Initial Subscription period, this Agreement shall be automatically and without any further action renewed for additional successive periods of either 12 months (in respect of an annual subscription) or 1 month (in respect of a monthly subscription) each, unless (a) Customer has unsubscribed from the Services or provided written notice of Termination to the Company prior to the end of the then current Initial Subscription Term or any other successive period (each a “Renewal Period”, and together with the Initial Subscription Term – the “Term”) in which case the Agreement shall Terminate immediately upon un-subscription or receipt of termination notice by the Company (as applicable), or (b) Customer has provided a written notice of non-renewal to the Company (in which case the Agreement shall terminate at the end of the then current Initial Subscription Term or Renewal Period in which it was received), or (c) the Agreement is terminated as specified below. For avoidance of doubt, the Company’s entitlement to receive Services Fees in respect of an entire Renewal Period shall exist upon its commencement, regardless of whether the Agreement was terminated prior to its conclusion or not. ##13.2. Customer shall not be entitled to any refunds of fees paid following a termination by Customer of this Agreement, and all fee due in respect of any Term for which Customer is subscribed shall remain due regardless of when a notice of termination was provided. ##13.3. Additionally, notwithstanding the foregoing, Company reserves the right, in its sole discretion, to terminate the Agreement or suspend Customer’s access to the Services or any portion thereof and at any time with or without notice (i) for convenience or inability of Company to continue providing the Services for an extended period of time, in which case Company may refund Customer the Services Fees paid by Customer in advance for Services not yet provided on a pro-rated basis (for avoidance of doubt, no refund or credit will be provided due to temporary unavailability of the Services); or (ii) if Customer breaches or defaults under any material provision of this Agreement. ##13.4. Upon termination or expiration of this Agreement for any reason whatsoever: (a) all rights granted to Customer under this Agreement shall immediately terminate; (b) the Customer shall immediately cease any use of the Services; (c) all outstanding Services Fees will immediately become due and payable by Customer; and (d) each party shall return and make no further use of any Confidential Information (and all copies of them) belonging to the other party. ##13.5. Customer acknowledges that, notwithstanding anything herein to the contrary, following termination or expiration of the Agreement, the Output and Customer Data will no longer be available to Customer through the Services or otherwise made available to it by the Company. Unless instructed otherwise by Customer in writing to destroy all Output and Customer Data relating to a Customer, Company shall retain any Output and Customer Data of a Customer for at least 30 days following the termination or expiration of this Agreement, following which the Company shall be entitled to destroy any of the Customer Data and Output in its possession (if any). Notwithstanding the aforementioned, Customer acknowledges that un-instalment of the Services will lead to the immediate deletion of all Customer Data and Output. ##13.6. Termination or expiration shall not affect the Company’s rights to any Services Fees in respect of the Term prior to termination or expiration. Any provision that by its nature is intended to survive termination or expiration, including without limitation Sections 7, 8, 11, 12, 13 and 14 of this Agreement, shall not be affected or prejudiced by such termination or expiration. ##14. Miscellaneous##14.1. The headings used in this Agreement are for convenience of reference only and shall not affect the interpretation or meaning of the terms and provisions of this Agreement.##14.2. This Agreement constitutes the entire agreement between the parties regarding the use of the Services, and supersedes any previous arrangement, understanding or agreement between the parties, written or oral, relating thereto.##14.3. No modification to this Agreement, nor any waiver of any rights, will be effective unless made in writing and signed by the applicable party. ##14.4. Neither party’s waiver of any breach or default of any provision of this Agreement shall constitute a waiver of other provisions or any other right hereunder, or a waiver of any subsequent breach or default.##14.5. Unless expressly provided otherwise herein, all remedies hereunder are cumulative and do not exclude any other remedies available by law.##14.6. If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in full force and effect.##14.7. This Agreement does not confer any rights on any third party.##14.8. 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 authorise either party to act as agent for the other.##14.9. The Customer shall not, without the prior written consent of the Company, assign, transfer, or sub-contract this Agreement and/or any of its rights or obligations under this Agreement, and any unauthorized assignment shall be null and void. The Company may, at any time, freely assign, transferor sub-contract any of its rights or obligations under this Agreement.##14.10. Any disputes or claims arising out of or in connection with this Agreement and/or the Services, will be governed by, and construed in accordance with, the laws of the State of Israel, excluding its conflict of law principles. The parties irrevocably agree that the competent courts of the Tel Aviv-Jaffa District of Israel shall have exclusive jurisdiction to settle any disputes or claims arising out of or in connection with this Agreement and/or the Services (including non-contractual disputes or claims).##14.11. Any required or permitted notices hereunder must be given in writing (a) if to the Company, by E-mail to the following address: worq@dialero.com; and (b) if to Customer by E-mail to the e-mail address with which Customer registered for the Services. Notices will be deemed given within 1 Business Day from the delivery date if sent by E-mail, and within 5 Business Days from the delivery date if sent by other methods permitted herein.##14.12. Company may change the terms of this Agreement by posting new terms, such terms shall be effective in respect of each Customer immediately once posted, other than to the extent a change constitutes a material change to this Agreement, in which case it will apply to a Customer as of the following Renewal Period, and in the event the Initial Subscription Term has not yet began, as of the Initial Subscription Term.##Last updated: April 2nd, 2017######Exhibit A##The Company shall use commercially reasonable endeavours (a) to make the Services available 24 hours a day, seven days a week, except for planned maintenance carried out by the Company from time to time; and (b) to provide support for the Services by email at the following address worq@dialero.com or online during Normal Business Hours. “Normal Business Hours” means, 9.00 am to 6.00 pm, EST, on each Business Day (“Business Day” means, any day which is not a Saturday, Sunday or public holiday in the United States of America).
