Matics SAAS Agreement
Last update: November 28, 2018
Standard Terms of Service
These Standard Terms of
Service constitute the terms and conditions, which allow the use of Company's
products, following a signed Quotation Offer (the "Quotation")
between Matics Manufacturing Analytics LTD., CN# 512873399 (“Company”) and the
Customer (as defined in the Quotation). As detailed in the Quotation, these
Standard Terms of Service, along with the signed Quotation and the Privacy
Policy (which can be found at matics.live/privacy-policy), constitute the entire
agreement between the Company and Customer (the "Agreement").
1. Grant of License, use of the Services and Support
1.1. Rights Granted to Customer. Subject to the terms and conditions of this Agreement, the Company agrees to grant to Customer, during the Term only, a non-exclusive, non-transferable, non-sublicensable right to use the Services, through its employees and/or independent contractors (“Permitted Users”) for Customer's internal business purposes. Customer may access the company's services through downloading the Company's software (the "Software") to its own devices (whether such devices were purchased from the Company or from other third parties) (the "Devices"). For avoidance of doubt the Software is part of the Services.
1.2. Services modifications, changes and additions. The Company shall have the right at any time and from time to time, at its sole discretion, and upon prior 30 days' written notice to Customer, to make substitutions and modifications to the Services so long as such substitution(s) and/or modification(s) do not adversely affect Customer’s use of the Services.
1.3. Support. The Company shall provide technical support services (the “Maintenance and Support Services”) to Customer during the Term of this Agreement in accordance with the terms of Company's SLA, which can be found at matics.live/sla. All Maintenance and Support Services will be provided via email (firstname.lastname@example.org). Initial response shall be within 24 hours; regular resolution within 7 days.
2. Representations and obligations
2.1. BY CUSTOMER. Without derogating from Customer's obligations, warranties and representations under this Agreement Customer hereby states and undertakes as follows:
2.1.1. Customer has the right and power to enter into this Agreement.
2.1.2. Customer acknowledges and is aware that the Services requires the following equipment: (a) access to high speed internet through a dedicated internet connection or Customer's network; (b) PC with common web-browser/ Android Tablet / IOS / Android Mobile phone with internet connectivity to run the applications provided as part of the Services; (c) Optional – Customer front end-equipment installation, for example router, sensors PLC etc.
2.1.3. Customer undertakes to use the Services solely for the internal business purposes and subject to the payment of the fees, agreed between Customer and Company under the Quotation. Except as specifically permitted herein, Customer agrees not to (i) sell, license (or sub-license), lease, assign, transfer, pledge, or share Customer's account and/or any of Customer rights under this Agreement with/to any third party; (ii) transfer, distribute, scrap, copy all or any part of the Services and/or the Company's proprietary rights (as referred under section 3 below) and/or use the Services as a service bureau; (iii) refer to the Services by use of framing and/or deep-linking; (iv) make use of the Services in any jurisdiction where same are illegal or which would subject the Company or its affiliates to any registration requirement within such jurisdiction or country; (v) use, or encourage, promote, facilitate or instruct others to use the Services for any illegal, harmful or offensive use; (vi) transmit or upload any viruses, spyware or other harmful, infringing, illegal, disruptive or destructive content, messages or files; (vii) access the Services through or use with the Services any unauthorized means, services or tools including without limitation any data mining, robots, or similar automated means or data gathering and extraction tools, including without limitation in order to extract for re-utilization of any parts of this Services; (viii) distribute, publish, send, or facilitate the sending of any advertisements, spam, inappropriate, inaccurate, misleading, fraudulent, libelous, defamatory, offensive, threatening, abusive or otherwise illegal content or content which infringes intellectual property rights of third parties or their right for privacy; (ix) copy, modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), make any attempt to discover the source code of the Services and/or any other software available on the Services or create derivative works thereof; (x) create false personas, multiple identities, multiple user accounts, set up an account on behalf of someone other than Customer; (xi) attempt to interfere with, hack into or decipher any transmissions to or from the servers for the Service. Customer is solely responsible for obtaining, paying for, repairing and maintaining all the equipment, software, hardware and services required for getting access to and using the Services.
2.1.4. Submitted Materials. Customer shall have sole responsibility and liability for Submitted Materials. The Company shall not be liable for any and all parts of the Submitted Materials and shall be entitled, under its sole discretion, to remove or edit any of the Submitted Materials at the Company's sole discretion and without notice or explanation. Nothing in this Agreement obligates the Company to display Customer submitted materials or to use it at all or in a certain manner. Customer may not include privately identifiable information in its Submitted Materials.
126.96.36.199. Customer represents and warrant to the Company that its Submitted Materials: (i) comply with and will comply with all applicable laws, rules, regulations and this Agreement and will not infringe the rights of any third party, including any intellectual property rights and the right to privacy, (ii) do not contain any threatening, offensive, racist, hateful, violent, sexually explicit, obscene, libelous, defamatory or otherwise inappropriate or any commercial content, (iii) are free from any restrictions, third party rights, payment obligations and/or royalties (including without limitation to any collecting societies).
188.8.131.52. "Submitted Materials" shall mean any and all material, text, feedbacks. content, measurements, videos, photographs and information or other data provided and/or uploaded by Customer to the Services.
2.1.5. Customer Account. Customer solely responsible for any actions performed in the Services under its user name and password. Keeping Customer's password safe is Customer's sole responsibility. If Customer has any reasons to suspect that its (or anyone on Customer's behalf) password was discovered by any third party or that there was an unauthorized access to Customer account, Customer will immediately notify the Company and modify Customer's login information. The Services are intended for use by users at least eighteen (18) years old. Customer hereby declares that Customer (and/or anyone on Customer's behalf) are eighteen (18) years old or older and undertake to monitor Customer's account to ensure that no minor under that age has access to the Services.
2.1.6. Third-Party Products and Services. Customer is aware that the use of the Services is done through Customer's Devices. Customer acknowledges that the Company is not liable, in any form, for the Devices, their use, functionality and any other aspect, and the use of the Devices is subject to the third parties' terms and condition accompanied such Devices. Any and all liability and/or warranties regarding the purchase and use of the Devices is granted by the relevant manufacturer only.
In addition, Customer acknowledges that the Services may enable or assist Customer to access, interact with, and/or purchase Third-Party Services. Such access to the Third-Party Services will be done at Customer's own risk. Any use of Third-Party Services is governed solely by the terms and conditions of such Third-Party Services (and Customer shall comply with all such terms and conditions), and any contract entered into, or any transaction completed via any Third-Party Services, is between Customer and the relevant third party, and not the Company. The Company makes no representation and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third-Party Services or any transactions completed, and any contract entered into by Customer with any such third party.
“Third-Party Services” means products, services, applications, or websites made available by third parties through the Services or purchased in order to obtain the Services (i.e., companies or people who are not the Company).
2.2. BY COMPANY. Company represents and warrants that (i) the Services will perform materially as described in this Agreement; (ii) the Services will not infringe, misappropriate or otherwise violate any intellectual property or other right of any third party; (iii) it will perform all Services in a timely, professional, and workmanlike manner with a level of care, skill, practice and judgment consistent with generally recognized industry standards and practices for similar services, using personnel with requisite skill, experience and qualifications, and will devote adequate resources to meet its obligations under this Agreement; (iv) its performance of any services or other obligations under this Agreement do not or at any time will not conflict with or violate any applicable law, including any law relating to data privacy, data security or personal information; and (v) it has the right and power to enter into this Agreement and has the ability and experience to carry out the obligations assumed by it under this Agreement.
3. Proprietary rights
3.1. Ownership of Proprietary Rights. The Services, including without limitation any underlying data, software, platforms, algorithms, technology, application and website design, any information, services, texts, feedback, files, sound, music, videos, various applications, social graphs, organization, structure, specifications, features and any modifications, enhancements and derivatives thereof and all Intellectual Property Rights related thereto are the property of the Company and/or its respective affiliates which retains all right, title and interest in connection therewith. For purposes of clarity, Company makes no claim with respect to any data, content, photographs, videos or other materials uploaded to the Services by Customer or any of Customer’s Permitted Users. Customer shall retain ownership of all right, title and interest in and to any and all Confidential Information or other data submitted by or for Customer (and/or its Permitted Users) or collected or processed by or for Customer (and/or its Permitted Users) using the Services. No rights are granted to Company other than as expressly set forth herein. Nothing herein shall derogate from or cause to be transferred to Company any property interest in content that is uploaded by Customer or Customer’s Permitted Users into the Services.
4. Service Fees
4.1. Customer shall pay to the Company the Service Fees in accordance with the terms of the Quotation signed between the Company and the Customer.
4.2. In the event of late undisputed payment, Company may assess interest on overdue payments at the rate of one and one half percent (1.5%) per month, or the maximum lesser rate allowed by law, from the due date for payment until payment is received by Company (whether before or after judgment), accruing on a daily basis and compounding monthly, without thereby derogating from other rights and remedies afforded to Company under this Agreement and/or under any applicable law.
5. Term and Termination
5.1. The Term of this Agreement is detailed in the Quotation.
5.2. Termination for Cause. In addition to section 4 of the Quotation, either party may terminate this Agreement for cause, effective immediately, upon written notice, if either party should: (1) breach the provisions of sections 2.1.3 and/or 9; (2) admit in writing its inability to pay its debts generally as they become due; (3) make a general assignment for the benefit of creditors; (4) institute proceedings to be adjudicated a voluntary bankrupt or consent to the filing of a petition of bankruptcy against it; (5) be adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; or (6) have a decree entered against it by a court of competent jurisdiction appointing a receiver, liquidator, trustee or assignee in bankruptcy or insolvency covering all or substantially all of such party’s property or providing for the liquidation of such party’s property or business affairs, then the other party may terminate this Agreement.
5.3. Effect of Termination. Upon expiration or termination of this Agreement, by any reason whatsoever, Company may terminate this Agreement and/or suspend Customer's right to access or use any portion or all of the Services immediately at Company's sole discretion and without notice. Upon termination Customer shall immediately cease using the Services and the following Sections shall survive: 3, 7-9.
6. Data collection
6.1. The Parties agree that the information collected through the Services and/or the Services regarding the Customer's business belongs to Customer. However, during the Term only, Company may collect, use and publish Anonymous Information (as defined below), and disclose it to third parties, for improvement, publishing, optimizing and marketing of the Services. "Anonymous Information" means information concerning the use of the Services which does not allow identification of an individual, such as aggregated information and analysis on the patterns of use of the Services. Company is the owner of all the Anonymous Information collected or received using the Services, all in accordance with the terms of this Agreement.
6.2. In order to protect all data gathered through the Services (including, without limitation, the Customer Data), Company provides appropriate digital security measures consistent with industry standards, applicable by law. It's clarified that the data collected is stored on a suitable cloud storage by a third party cloud storage provider and subject to the terms and use of such digital storage, its availability and responsibilities.
6.3. Notwithstanding Section 6.2 above, Customer is the sole responsible for the security of any information stored on its own digital storage and shall take appropriate measures to maintain a commercially reasonable level of security to protect all data collected thought the Services and stored on it Devices and/or other devices used by Customer.
6.4. Data Security Breaches. Company shall use reasonable efforts to prevent any actual or suspected (a) unauthorized access or misuse of the Customer Data and/or Customer Confidential Information; or (b) acts or omissions that threaten the security, confidentiality, or integrity of Customer Data and/or Customer Confidential Information.
7.1. Warranty Obligation. The Company represents and warrants solely to Customer that the Services will be free from material defects in materials and workmanship, when given normal, proper and intended usage.
7.2. Limited Warranty. THE COMPANY WARRANTS THAT THE SERVICES WHEN USED AS DIRECTED BY COMPANY OR AS OTHERWISE CONTEMPLATED IN THIS AGREEMENT, WILL PROVIDE THE FUNCTIONS AND FACILITIES DESCRIBED IN THE SERVICES AND THE DOCUMENTATION ISSUED BY THE COMPANY TO CUSTOMER OR AS OTHERWISE CONTEMPLATED UNDER THIS AGREEMENT.
7.3. Company is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, or software due to technical problems or traffic congestion on the internet or on the Services and/or Site, including any injury or damage to users or to any person's computer or mobile device related to or resulting in connection with the use of the Services.
7.4. Customer acknowledges that he/she shall use the Services on its own risk. Company shall not be liable regarding any forbidden and / or reckless and / or malice use of the Services, which may cause damage (direct, indirect, incidental, special etc.) to Customer and / or anyone of Customer's behalf and/ or devices, other than the warranties Company must provide to Customer in accordance with the applicable Law.
Disclaimer. EXCEPT FOR THE WARRANTIES STATED IN THIS SECTION 7 THE SERVICES, ARE PROVIDED “AS IS” WITHOUT ADDITIONAL WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. THE COMPANY DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF USE, OF THE PROGRAMS IN TERMS OF CORRECTNESS, ACCURACY, COMPLETENESS, OR RELIABILITY, CURRENTNESS, OR OTHERWISE.
THE COMPANY MAKES NO OTHER WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF COMPANY, AND EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S LIMITATION OF LIABILITY UNDER THIS SECTION SHALL NOT APPLY TO ACTS OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS, EACH PARTY'S AGGREGATE LIABILITY UNDER ANY CLAIMS ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE AVERAGE SERVICES FESS PAID BY CUSTOMER TO THE COMPANY DURING 2 MONTHS PERIOD UNDER THIS AGREEMENT.
8.1. The Company shall indemnify, defend, and hold Customer harmless from and against all claims, suits, demands, actions and proceedings, judgments, penalties, damages, settlements, costs and expenses (including reasonable legal fees and costs), losses or liabilities (“Damages”) arising out of a claim that the Services (or any part of it) infringes any patent, copyright, trade secret, service mark or trademark of a third party.
9. CONFIDENTIAL INFORMATION
9.1. The Company and Customer may disclose to each other certain Confidential Information (defined below). The Company and Customer agree that the Confidential Information is the sole and exclusive property of the disclosing party and that the disclosing party owns all world-wide rights therein under patent, copyright, trade secret, confidential information, or other proprietary rights. The Company and Customer shall hold in confidence and will not, directly or indirectly, use, reproduce, distribute, reverse engineer, decompile, transfer, or disclose the Confidential Information or any portion thereof.
9.2. The Company and Customer’s obligations with regard to the Confidential Information shall survive the termination of this agreement. As used herein, “Confidential Information” means information, that the receiving party knew or should have reasonably known was the confidential information of the disclosing party, including, without limitation, the Services, know how, source codes, Software, the Customer Data, all data created or produced by any of the Services and/or Services used by Customer, its Permitted Users, personnel data, research, algorithms, manuals and all other materials or information disclosed by the disclosing party or its Permitted Users to the receiving party.
9.3. Confidential Information does not include (a) any information that is already known by receiving party without any obligation of confidence prior to its disclosure, (b) any information that is or become available to the general public without any wrongful act of the receiving party, or (c) is rightfully received from a third party without restriction on disclosure and without breach of this Agreement.
9.4. The receiving party shall: (a) not disclose Confidential Information to any third party, without the disclosing party’s prior written consent, except as may be required by law; (b) use Confidential Information solely as permitted hereunder; and (c) will use at least commercially reasonable efforts to protect Confidential Information from unauthorized access, disclosure and use. In the event the receiving party is required by law to disclose certain Confidential Information to a third party, the receiving party shall give the disclosing party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure.
9.5. This Section 9 shall survive the termination or expiration of this Agreement.
10. MISCELLANEOUS PROVISIONS
10.1. Publicity. During the term of this Agreement, the Company may refer to Customer in any marketing or promotional materials as a customer of Company and may issue a press release acknowledging the existence of this Agreement.
10.2. Entire Agreement. This Agreement together with the Quotation and its appendixes referred to herein set forth the entire and complete agreement between the parties hereto relating to the subject matter hereof and supersedes any prior written or oral agreement or understandings between the parties with respect to the subject matter hereof. This Agreement may be amended only by a writing signed by the parties hereto.
10.3. Assignment. Neither party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party (unless it's assigned to a fully owned subsidiary or parent company), which shall not be unreasonably withheld.
10.4. Independent Contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership or other joint relationship between Customer and the Company. Neither party shall have the ability to incur any obligation on behalf of the other party.
Law. This Agreement and its validity,
construction and performance shall be governed in all respects by the laws of
the State of Israel, without regard to its rules governing conflict of laws.
The parties hereby irrevocably submit to the exclusive jurisdiction of the
competent courts of Tel Aviv, Israel.
This section 10.5 shall survive the termination or expiration of this