END USER LICENSE AGREEMENT
- When you browse or visit our website, available at: aporia.com (“Website”);
- When you use the Aporia software, services and/or cloud services (collectively, the “Services“).
- When you subscribe to our distribution list(s) / newsletter(s) / blog(s);
- When you contact us (e.g. customer support, need help, submit a request for a product demo, sumbit a request to access our free community plan);
- When you attend a marketing event and provide us with your personal data;
- When you exchange business cards with us;
- When we use the personal data of our customers (e.g. contact details) ;
- When we use the personal data of our resellers, distributors, agents and/or finders (e.g. contact details);
- When we use the personal data of our service providers (e.g. contact details); and
- When you interact with us on our social media profiles (e.g., Facebook, Instagram, Twitter, LinkedIn).
Table of contents:
1 What Information We Collect, Why We Collect It, And How It Is Used
2 How We Protect And Retain Your Information
3 How We Share Your Personal Data
4 Your Privacy Rights.
5 Use By Children
0 Interaction With Third Party Products
7 Cookies And Other Tracking Technologies8 Analytic Tools
9 Your Choices
10 California Privacy Rights
11 Our California Do Not Track Notice
12 How to contact us
- WHAT INFORMATION WE COLLECT, WHY WE COLLECT IT, AND HOW IT IS USED
When you browse, or visit, our Website, we may collect data about you through Cookies, analytic tools and log files. We collect this data in order to analyze trends, administer the Website, track users’ movement around the Website, and gather demographic information. We use anonymous identifiers in order for us to present you with customized information, and in order to track users. We also use Amplitude and Logrocket to maintain and improve the Website and our products. We do not combine the information collected through the use of Amplitude and Logrocket with personally identifiable information. We may share this information with third party platforms, such as Amplitude and Logrocket.
When you subscribe to our Services via our Website, you will provide us with your full name and email address. We collect this information to send you a link in which will enable you to access our services. We may share this information with third party platforms, such as Amplitude and Logrocket.
When you use our Services, you make available to us, or provide us with access to, certain data about you, such data may include certain Personal Information, such as your full name, email address and any other Personal Information you decide to share with us while using the Services. We collect and use this information solely as necessary in order to provide you with the Services, all in accordance to, and as specified in our End User License Agreement. We may share this information with third party platforms, such as Amplitude and Logrocket. Please note that if you provide certain payment information in order to pay for our Services, such as, full name, email address, credit card or other payment details, such information will be provided directly to our third party vendor providing payment processing services, will be used by such vendor solely in order to process your payment and we will have not access to said information.
When you subscribe to our newsletter via our Website, you will provide us with your full name and email address. We collect this information to send you our newsletter and send you marketing communications. We may share this information with third party platforms, such as Amplitude and Logrocket.
When you contact us (e.g. customer support, need help, submit a request), you will provide us with the following information: Full name, email address, country, and any messages or other information you wish to share with us. We use this information to answer your questions and to provide support (e.g. to solve problems, bugs or issues). We may share this information with third party platforms, such as Amplitude and Logrocket. We also use your name and e-mail details that you provide us with in order to send you marketing communications.
When you request a product demo or access to our community plan, you will provide us with the following information: Full name, email address, company name and any other Personal Information you decide to share with us. We use this information to provide you with a product demo or give you access to our free community plan (as the case may be). We may share this information with third party platforms, such as Amplitude and Logrocket.
Finally, please note that some of the abovementioned personal data will be used for detecting, taking steps to prevent, and prosecution of fraud or other illegal activity, to identify and repair errors, to conduct audits, and for security purposes. Personal Data may also be used to comply with applicable laws, with investigations performed by the relevant authorities, law enforcement purposes, and/or to exercise or defend legal claims. In certain cases, we may or will anonymize or de-identify your personal data. “Anonymous Information” means information which does not enable identification of an individual user, such as aggregated information about the use of our services. We may use Anonymous Information and/or disclose it to third parties without restrictions (for example, in order to improve our services and enhance your experience with them).
- HOW WE PROTECT AND RETAIN YOUR INFORMATION
- Security. We have implemented appropriate technical, organizational and security measures designed to protect your personal data. However, please note that we cannot guarantee that the information will not be compromised as a result of unauthorized penetration to our servers. As the security of information depends in part on the security of the computer, device or network you use to communicate with us and the security you use to protect your user IDs and passwords, please make sure to take appropriate measures to protect this information.
- Retention of your personal data. In addition to the retention periods mentioned above, in some circumstances we may store your personal data for longer periods of time, for example (i) where we are required to do so in accordance with legal, regulatory, tax or accounting requirements, or (ii) for us to have an accurate record of your dealings with us in the event of any complaints or challenges, or (iii) if we reasonably believe there is a prospect of litigation relating to your personal data or dealings.
- HOW WE SHARE YOUR PERSONAL DATA
We share your personal data as follows:
- With our hosting providers;
- With our service providers ;
- With our staff and other entities within our group.
We may also share your personal data as follows:
- To the extent necessary, with regulators, courts or competent authorities, to comply with applicable laws, regulations and rules (including, without limitation, federal, state or local laws), and requests of law enforcement, regulatory and other governmental agencies or if required to do so by court order;
- If, in the future, we sell or transfer, or we consider selling or transferring, some or all of our business, shares or assets to a third party, we will disclose your personal data to such third party (whether actual or potential) in connection with the foregoing events;
- In the event that we are acquired by, or merged with, a third party entity, or in the event of bankruptcy or a comparable event, we reserve the right to transfer, disclose or assign your personal data in connection with the foregoing events; and/or
- Where you have provided your consent to us sharing or transferring your personal data (e.g., where you provide us with marketing consents or opt-in to optional additional services or functionality).
- YOUR PRIVACY
You may have certain rights under applicable privacy laws, such as accessing, correcting and deleting Personal Data, objecting to processing of Personal Data, withdrawing of consent to processing Personal Data. To the extent such privacy laws apply to you, we will respect your rights and comply with such laws.
You can exercise your rights by contacting us at firstname.lastname@example.org. Subject to legal and other permissible considerations, we will make every reasonable effort to honor your request promptly in accordance with applicable law or inform you if we require further information in order to fulfil your request. When processing your request, we may ask you for additional information to confirm or verify your identity and for security purposes, before processing and/or honoring your request. In the event that your request would adversely affect the rights and freedoms of others (for example, would impact the duty of confidentiality we owe to others) or if we are legally entitled to deal with your request in a different way than initial requested, we will address your request to the maximum extent possible, all in accordance with applicable law.
- USE BY CHILDREN
We do not offer our products or services for use by children and, therefore, we do not knowingly collect personal data from, and/or about children under the age of eighteen (18). If you are under the age of eighteen (18), do not provide any personal data to us without involvement of a parent or a guardian. In the event that we become aware that you provide personal data in violation of applicable privacy laws, we reserve the right to delete it. If you believe that we might have any such information, please contact us at email@example.com.
- INTERACTION WITH THIRD PARTY PRODUCTS
We enable you to interact with third party websites, mobile software applications and products or services that are not owned or controlled by us (each a “Third Party Service”). We are not responsible for the privacy practices or the content of such Third Party Services. Please be aware that Third Party Services can collect Personal Data from you. Accordingly, we encourage you to read the terms and conditions and privacy policies of each Third Party Service.
Our Website utilizes “cookies”, anonymous identifiers and other tracking technologies in order for us to provide our Website and present you with information that is customized for you. A “cookie” is a small text file that may be used, for example, to collect information about activity on the Website, such as type of browser, Internet Service Provider (ISP), date/time stamp, referring/exit pages, clicked pages and any other information your browser may send to us. We use such information to analyze trend, administer the Website, track users’ movement around the Website, and gather demographic information. Certain cookies and other technologies may serve to recall Personal Information, such as an IP address, previously indicated by a user. Most browsers allow you to control cookies, including whether or not to accept them and how to remove them. You may set most browsers to notify you if you receive a cookie, or you may choose to block cookies with your browser.
- ANALYTIC TOOLS
The Website uses various analytic tools, such as:
We reserve the right to remove or add new analytic tools.
- Your Choices
California Civil Code Section 1798.83 permits our customers who are California residents to request certain information regarding our disclosure of Personal Information to third parties for their direct marketing purposes. To make such a request, please send an email to firstname.lastname@example.org. Please note that we are only required to respond to one request per customer each year.
We do not track consumers over time and across third party websites and therefore do not respond to Do Not Track signals. We do not allow third parties to collect personally identifiable information about an individual consumer’s online activities over time and across different websites when a consumer uses the Website.
- How to contact us
If you have any questions, concerns or complaints regarding our compliance with this notice and the data protection laws, or if you wish to exercise your rights, we encourage you to first contact us at email@example.com.
Subject to the terms and conditions of this Agreement, Company hereby grants Customer a limited, non-exclusive, non-sublicensable, non-transferable and revocable license to install, remotely access (i.e. on a SaaS basis) and/or use (as the case may be) Aporia software (the “Software”) during the Term (as defined below), solely for Customer’s internal purposes. Unless otherwise indicated, the term “Software” also includes any appliance and any documentation (“Documentation”) provided to Customer in connection with the operation of the Software. Customer may only use the Software in accordance with the Documentation, subject to the use limitations indicated in the Order and applicable laws. “Order” means any online order form issued by the Company and agreed to by Customer for the provision of the applicable license and services granted under this Agreement.
2.1. In addition to the above-mentioned license, Company will provide support and maintenance services in accordance with Company’s Service Level Agreement which made available to you, upon request by the Company (“SLA”). The Software, the services detailed in the Order and the services provided under the SLA shall be referred as the “Services”). Company’s obligations hereunder are based on and subject to the Customer: (i) complying with the terms and conditions of the Agreement,; (ii) complying with Company’s instructions, if any, for performing any corrective action; (iii) maintaining the connectivity (with acceptable bandwidth) of the Customer’s Internet, as well as creating and maintaining firewall definitions and opening required ports that permit access to the Service; and (iv) Customer agrees to receive from Company communications via e-mail, telephone, and other formats.
2.2. If Customer has purchased the license granted under Section 1 directly from Company this Section 2.2 shall apply with respect to such Customer. In the event Customer wishes to receive any additional services from Company which are not included in the SLA (“Professional Services”) Customer shall request same from Company in writing, and, subject to the Company’ agreement in its sole discretion to provide such Professional Services, such Professional Services shall be set out in sequential Statements of Work (that reference a corresponding price quotation to which it relates) to this Agreement negotiated and executed by both Parties (each, a “SOW”). Professional Services shall be charged in accordance with the fees and payment terms specified within the applicable SOW. Each SOW is hereby deemed incorporated into this Agreement by reference. To the extent of any conflict between the main body of this Agreement and a respective SOW, the former shall prevail, unless and to the extent that the SOW expressly states otherwise.
3. TRIAL PERIOD
Company may, at its sole discretion, offer a free trial subscription to the Software, on which the Account was provisioned and ending at the date determined specified in the Order (“Trial Period”). Unless otherwise agreed between the Parties, no fees are due from Customer for use of the Software during the Trial Period. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DURING THE TRIAL PERIOD THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY WHASOEVER AND COMPANY WILL HAVE NO WARRANTY, INDEMNITYOR OTHER OBLIGATIONS OR LIABILITIES WITH RESPECT TO THE TRIAL PERIOD. FOR GREATER CLARITY, COMPANY SHALL NOT BE LIABLE FOR HEREUNDER FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL OR EXEMPLARY DAMAGES OR LOSSES WHATSOEVER; NOR FOR DAMAGES OR LOSSES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, OR DAMAGES ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE. In the event of any inconsistencies between the terms of this Section 3 and other provisions of this Agreement, the terms specified in this Section 3 shall prevail with respect to the Trial Period.
4. SUBSCRIPTION FEES
If Customer has purchased the license granted under Section 1 and the Services directly from Company this Section 4 shall apply. The Services are conditioned on Customer’s payment in full of the applicable fees set forth in the Order. Following the Initial Term, Company reserves the right to change its fees at any time, and Customer shall be informed of such changes via email prior to such changes (“Notification”). Should Customer does not agree to the price changes, Customer sole remedy is to contact Company directly and to request to terminate its use of the Services prior to the effective date of the price changes as shall be detailed in the Notification. Unless otherwise specified in the Order: (i) Customer will pay all amounts due under this Agreement in U.S. Dollars currency, (ii) all amounts invoiced hereunder are due and payable within thirty (30) days of the date of the invoice, and (iii) all fees and other amounts paid hereunder are non-refundable. Any amount not paid when required to be paid hereunder shall accrue interest on a daily basis until paid in full at the lesser of: (i) the rate of one and a half percent (1.5%) per month; or (ii) the highest amount permitted by applicable law. All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other direct or indirect taxes, charges, levies and duties.
5. PERMITTED USERS
The Software may be accessed solely by Customer’s employees or service providers who are explicitly authorized by Customer to use the Software . Each Customer will ensure that the Permitted Users comply with the terms of this Agreement at all times; and shall be fully responsible for any breach of this Agreement by a Permitted User. Unauthorized access or use of the Software must be immediately reported to the Company.
6. PROHIBITED USERS
Except as specifically permitted herein, without the prior written consent of the Company, Customer must not, and shall not allow any Permitted User or any third party to, directly or indirectly: (i) copy, modify, create derivative works of or distribute any part of the Software (including by incorporation into its products); (ii) sell, license (or sub-license), lease, assign, transfer, pledge, or share Customer’s rights under this Agreement with any third party; (iii) use any “open source” or “copyleft software” in a manner that would require the Company to disclose the source code of the Software to any third party; (iv) disclose the results of any testing or benchmarking of the Software to any third party; (v) disassemble, decompile, reverse engineer or attempt to discover the Software’s source code or underlying algorithms; (vi) use the Software in a manner that violates or infringes any rights of any third party, including but not limited to, privacy rights, publicity rights or intellectual property rights; (vii) remove or alter any trademarks or other proprietary notices related to the Software; (viii) circumvent, disable or otherwise interfere with security-related features of the Software or features that enforce use limitations; (ix) export, make available or use the Software in any manner prohibited by applicable laws (including without limitation export control laws); and/or (x) transmit any malicious code (i.e., software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system) or other unlawful material in connection with the Software.
7. COOKIES AND OTHER TRACKING TECHNOLOGIES
Our Website utilizes “cookies”, anonymous identifiers and other tracking technologies in order for us to provide our Website and present you with information that is customized for you. A “cookie” is a small text file that may be used, for example, to collect information about activity on the Website, such as type of browser, Internet Service Provider (ISP), date/time stamp, referring/exit pages, clicked pages and any other information your browser may send to us. We use such information to analyze trend, administer the Website, track users’ movement around the Website, and gather demographic information. Certain cookies and other technologies may serve to recall Personal Information, such as an IP address, previously indicated by a user. Most browsers allow you to control cookies, including whether or not to accept them and how to remove them. You may set most browsers to notify you if you receive a cookie, or you may choose to block cookies with your browser..
8. SPERSONAL DATA AND ANALYTICS INFORMATION
8.1 While using the Services and/or the Software, certain data, such as personal data or other data, will be made available and/or accessible to Company or the Services (the “Customer Data”). As the exclusive owner of the Customer Data, Customer represents, warrants and covenants that to the extent the Customer Data includes any personally identifiable information, Customer has received and/or obtained any and all required consents or permits and has acted in compliance with any and all applicable privacy laws, including, without limitation privacy laws and data protection laws and regulations (including, without limitation, the EU General Data Protection Regulation (“GDPR”), as to allow Company to receive, transfer and use the Customer Data solely in order to perform our Services in accordance with this Agreement (including, without limitation, the provision of such data to Company (or access thereto) and the transfer of such data by Company to its affiliates, subsidiaries and subcontractors, including transfers outside of the European Economic Area), for the provision of the Services and the performance of this Agreement. Company may however be required to disclose the Customer Data: (a) to satisfy any applicable law, regulation, legal process, subpoena or governmental request; or (b) to collect, store, transfer, and/or process the Customer Data through Company’s affiliates, subsidiaries, third party service providers and vendors as reasonable necessary to provide the Services.
8.2 To the extent that Customer needs a data processing agreement, the Customer shall request the Company to provide it with the Company’s Data Processing Agreement (“DPA”) and shall return it signed to Company as described therein.
8.3 In the event Customer 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, Customer shall be solely and fully responsible and liable for any such breach, violation, infringement and/or processing of personal data without a DPA by Company (including, without limitation, its 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, Customer shall defend, hold harmless and indemnify Company (including, without limitation, its 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.
8.4 Notwithstanding the foregoing, any anonymous information, which is derived from the use of the Software and Services (i.e., metadata, aggregated, statistics and/or analytics information) which is not personally identifiable information (“Analytics Information”) may be used for providing the Service and/or Software, for development and/or improvement, and/or for statistical purposes (internally or externally). Notwithstanding anything to the contrary, the Analytics Information is our exclusive property
Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law.
10. INTELECTUAL PROPERTY RIGHTS
The Software is not for sale and is the Company’s sole property. All right, title, and interest, including any intellectual property rights evidenced by or embodied in, attached, connected, and/or related to the Software (and any and all improvements and derivative works thereof) and any other products, deliverables or services provided by Company; are and shall remain owned solely by Company or its licensors. This Agreement does not convey to Customer any interest in or to the Software other than a limited right to use the Software in accordance with Section 1. Nothing herein constitutes a waiver of the Company’s intellectual property rights under any law.
If Company receives any feedback (e.g., questions, comments, suggestions or the like) regarding any of the Services (collectively, “Feedback”), all rights, including intellectual property rights in such Feedback shall belong exclusively to Company and that such shall be considered Company’s Confidential Information and Customer hereby irrevocably and unconditionally transfers and assigns to Company all intellectual property rights it has in such Feedback and waives any and all moral rights that Customer may have in respect thereto. It is further understood that use of Feedback, if any, may be made by Company at its sole discretion, and that Company in no way shall be obliged to make use of any kind of the Feedback or part thereof.
11. THIRD PARTY RIGHTS
The Software may use or include third party open source software, files, libraries or components that may be distributed to Customer and are subject to third party open source license terms. A list of such components will be provided upon request and may be updated from time to time by the Company. If there is a conflict between any open source license and the terms of this Agreement, then the open source license terms shall prevail but solely in connection with the related third party open source software. Company makes no warranty or indemnity hereunder with respect to any third party open source software.
Customer hereby acknowledges and agrees that Company may use the Customer’s name and logo to identify Customer as a customer of Company or user of the Software, in connection with its marketing activities, within its website or marketing materials or otherwise.
Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including without limitation trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, and any other information that a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party’s Confidential Information from disclosure to a third party. The receiving party’s obligations under this Section, with respect to any Confidential Information of the disclosing party, shall not apply to and/or shall terminate if 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. Neither Party shall use or disclose the Confidential Information of the other Party except for performance of its obligations under this Agreement (“Permitted Use”). The receiving party shall only permit access to the disclosing party’s Confidential Information to its respective employees, consultants, affiliates, agents and subcontractors having a need to know such information in connection with the Permitted Use, who either (i) have signed a non-disclosure agreement with the receiving party containing terms at least as restrictive as those contained herein or (ii) are otherwise bound by a duty of confidentiality to the receiving party at least as restrictive as the terms set forth herein. The receiving party will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order or a court of similar judicial or administrative body, provided that it notifies the disclosing Party of such required disclosure to enable disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party.
14. LIMITED WARRANTIES.
The warranties in this Section 13 do not apply during the Trial Period. The Company represents and warrants that, under normal authorized use, the Software shall substantially perform in conformance with its Documentation. As the Customer’s sole and exclusive remedy and the Company’s sole liability for breach of this warranty, the Company shall use commercially reasonable efforts to repair the Software in accordance with the SLA. The warranty set forth shall not apply if the failure of the Software results from or is otherwise attributable to: (i) repair, maintenance or modification of the Software by persons other than the Company or its authorized contractors; (ii) accident, negligence, abuse or misuse of the Software; (iii) use of the Software other than in accordance with the Software’s Documentation; (iv) Customer’s failure to implement software updates provided by the Company specifically to avoid such failure; (v) the combination of the Software with equipment or software not authorized or provided by the Company. In addition to the exceptions specified in this Agreement or SLA, Customer acknowledges Company shall not be liable for any inaccuracy in the Service’s output and/or delay and/or unavailability of the Services, caused due to (a) failure of Customer’s Internet access or any public telecommunications network, shortage of adequate power or transportation facilities, (b) any incompatibility between the Customer’s systems and the Software appliance and/or (c) maintenance within the Customer’s systems affecting the operation of the Software. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE, ANY REPORTS OR OTHER OUTPUT WHICH MAY BE PROVIDED TO CUSTOMER HEREUNDER AND SERVICES (INCLUDING PROFESSIONAL SERVICES) ARE PROVIDED ON AN “AS IS” BASIS. THE COMPANY DOES NOT WARRANT THAT: (i) THE SOFTWARE, THE AND/OR THE SERVICES (INCLUDING ANY RESULTS THEREOF) WILL MEET CUSTOMER’S REQUIREMENTS, OR (ii) THE SOFTWARE WILL OPERATE ERROR-FREE. EXCEPT AS SET FORTH IN SECTION 8 AND THIS SECTION 13, THE COMPANY EXPRESSLY DISCLAIMS ALL EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, TITLE, NON- INFRINGEMENT, NON-INTERFERENCE, FITNESS FOR A PARTICULAR PURPOSE.
Company agrees to defend, at its expense, any third party action or suit brought against the Customer alleging that the Software, when used as permitted under this Agreement and the Order, infringes intellectual property rights of a third party (“IP Infringement Claim”); and the Company will pay any damages awarded in a final judgment against the Customer that are attributable to any such claim, provided that (i) the Customer promptly notifies the Company in writing of such claim; and (ii) the Customer grants the Company the sole authority to handle the defense or settlement of any such claim and provides the Company with all reasonable information and assistance, at Company’s expense. The Company will not be bound by any settlement that the Customer enters into without the Company’s prior written consent.
If the Software becomes, or in the Company’s opinion is likely to become, the subject of an IP Infringement Claim, then the Company may, at its sole discretion: (a) procure for the Customer the right to continue using the Software; (b) replace or modify the Software to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot be accomplished despite the Company’s reasonable efforts, then the Company may terminate this Agreement and if purchased directly from the Company. Company shall also provide a refund for any amount pre-paid by Customer for such returned Software for the remaining unused period of the license.
Notwithstanding the foregoing, the Company shall have no responsibility for IP Infringement Claims resulting from or based on: (i) modifications to the Software made by a party other than the Company or its designee; (ii) the Customer’s failure to implement software updates provided by the Company specifically to avoid infringement; or (iii) combination or use of the Software with equipment, devices or software not supplied by the Company or not in accordance with the Documentation.
This Section states Company’s entire liability, and Customer’s exclusive remedy, for claims or alleged or actual infringement.
16. TERM & TERMINATION
This Agreement shall enter into force and effect on the Effective Date and shall remain in full force and effect for a period of one (1) year unless earlier terminated as set forth herein (the “Initial Term”). Following such Initial Term, the Agreement shall be automatically renewed at the then-applicable subscription fees for successive one (1) year terms unless terminated earlier as set forth herein and/or either Party provides the other Party with at least a sixty (60) days’ prior written notice of non-renewal (each a “Renewal Term” and together with the Initial Term, the “Term“). In case Customer was granted with a right to use the Software during the Trial Period according to Section 3, this Agreement shall enter into force and effect on the Effective Date and shall remain in full force and effect for the Trial Period (as may be extended solely by Company’s explicit prior written approval). Following the Trial Period this Agreement shall be automatically renewed for the applicable Initial Term specified in the Order unless Customer provides Company with at least ten (10) days prior written notice of non-renewal of the Agreement. Either Party may terminate this Agreement with immediate effect if the other Party materially breaches this Agreement and such breach remains uncured fifteen (15) days after having received written notice thereof. Upon termination or expiration of this Agreement: (i) Software license granted to Customer under this Agreement shall expire, and Customer shall discontinue any further use and access thereof; (ii) Customer shall immediately delete and dispose of all copies of the Documentation in Customer’s or any of its representatives’ possession or control; (iii) Company may delete all Customer Data without affecting any of the Company’s rights to the Analytics Information; and (iv) in case purchased directly from Company, any sums paid by Customer until the date of termination are non-refundable. The provisions of this Agreement that, by their nature and content, must survive the termination of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive. The termination of this Agreement shall not limit Company from pursuing any other remedies available to it under applicable law. If applicable, Customer shall be responsible to download its Customer Data prior to termination of this Agreement.
This Agreement, including the DPA, any Order(s) and any exhibits attached or referred hereto, represents the complete agreement concerning the subject matter hereof and may be amended only by a written agreement executed by both Parties. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. Any use of the Software by an agency, department, or other entity of the United States government shall be governed solely by the terms of this Agreement. Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, this Agreement may be assigned by either Party in connection with a merger, consolidation, sale of all of the equity interests of the Party, or a sale of all or substantially all of the assets of the Party to which this Agreement relates. This Agreement shall be governed by and construed under the laws of the State of Israel, without reference to principles and laws relating to the conflict of laws. The competent courts of the city of Tel Aviv-Jaffa shall have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement. This Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. The Company will not be liable for any delay or failure to provide the Services resulting from circumstances or causes beyond the reasonable control of the Company including, but not limited to on account of strikes, shortages, riots, insurrection, fires, flood, storms, explosions, acts of God, war, government or quasi-governmental authorities actions, acts of terrorism, earthquakes, power outages, pandemic or epidemic (or similar regional health crisis), or any other cause that is beyond the reasonable control of the Company.