This terms of service (the “Agreement”) is a legal agreement by and between Qubex.ai Ltd., an Israeli company having its principal place of business in 39 Hamasger, 6721409 Tel Aviv, Israel (the “Company”), and you, either as an individual, company or other legal entity (collectively, "you" or “Customer”), who purchased a Subscription to the Software via the Company Website (as such terms are defined below). Company and Customer shall also be referred to herein individually as a “Party”, and together as the “Parties”.
This Agreement governs your use of the Company's software program and platform, which is intended to improve the resilience and efficiency of the Customer’s cloud infrastructure, and is made available to you for on-prem installation and as an online SaaS based console (collectively, the “Software”, as further defined below).
BY PURCHASING A SUBSCRIPTION TO THE SOFTWARE OR OTHERWISE BY ACCESSING OR USING THE SOFTWARE, YOU (EITHER INDIVIDUALLY OR ON BEHALF OF THE ORGANIZATION THAT YOU DULY REPRESENT) ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND YOU HEREBY REPRESENT AND WARRANT THAT YOU HAVE THE POWER, AUTHORITY AND LEGAL RIGHT TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION (WHERE APPLICABLE). IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT MAKE ANY USE OF THE SOFTWARE.
1. License grant and restrictions.
- The Software. The Software is proprietary software provided to the Customer by the Company for on-prem installation, in binary executable form for the regular and standard purposes the Software was designed for, all in accordance with the terms set forth in this Agreement. The Software also includes a SaaS component whereby certain Customer’s Data is transmitted to the Company via the Software and certain services are provided to the Customer via a dedicated online console. The term "Software" includes the on-prem Software and its binary code, the SaaS services provided via the Software, and any compilation of data, or visual display resulting from the operation of the Software, and any associated materials, media, equipment, systems, specifications, API and Documentation (as such terms are defined below).
- Product Listing. The Customer may purchase a license to access and use the Software pursuant to this Agreement, through the Company’s website (the “Company Website”), in accordance with the product information available via the Software page on the Company Website from time to time (“Listing Page”), and subject to a subscription in accordance with the payment models specified in the Listing Page (“Subscription”). Any terms and conditions included in the Listing Page are hereby incorporated into this Agreement by reference and form an integral part thereof. In case of any conflict between the terms and conditions available in the Listing Page and this Agreement, this Agreement shall prevail, unless explicitly stated otherwise in the Listing Page.
- License. Subject to the terms and conditions of this Agreement, and the payment of the applicable Subscription fees set forth on the Listing Page (the “Fees"), the Company hereby grants Customer, and Customer accepts, a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable and revocable license to install, operate, access and use the Software, during the Term, solely in binary executable form (with respect to the on-prem component of the Software) and solely for the Customer's internal business purposes and in the Customer's systems, all in accordance with the terms contained in this Agreement and in the Listing Page and in accordance with the Software's Documentation (as defined below). All other rights in the Software are expressly reserved by the Company.
- Documentation. The Company may make available certain Documentation related to the use, installation, access, deployment or integration of any portion of the Software. “Documentation” means the Company's standard user documentation, whether in hard copy, or in any electronic form or other media (generally made available by the Company to its customers), describing the use, features and operation of the Software. Unless context otherwise requires, the term “Software” shall include the Documentation.
- Authorized Users. The Customer may not allow the use of and/or access to the Software by third parties or anyone other than (i) the Customer's employees whose duties require such access or use; and (ii) the Customer's authorized consultants and subcontractors (excluding any direct competitors of the Company) while such access will be permitted only at the Customer's facilities/premises and only where such use is required as part of their performance of services on the Customer's behalf. The Customer will ensure that its employees, consultants and subcontractors comply with the terms of this Agreement and shall bear full responsibility for any harm caused to the Company for breach of the terms of the license by Customer's employees, consultants and subcontractors.
- Updates. If the Company supplies to Customer any updates, upgrades or any new versions of the Software (“Updates”) according to its then current policies, it may include automatic updating or upgrading of the Software with advance notice to the Customer. The Customer hereby permit the Company to deliver these Updates and install
- updated or upgrade by the Customer, then the Customer will be required to download such Update. If Customer does not follow such request and update the Software to the most current version, then its operation may be impaired, and its functionalities may be affected. The conditions of this Agreement apply to any update, upgrade and additional component added to the Software originally provided to Customer.
- Maintenance and Support. During the Term, the Company shall provide to the Customer maintenance and support services as specified on the Website, subject to the fees described therein.
Prohibited Uses. Except as specifically permitted herein, without the prior written consent of the Company, the Customer must not, and shall not allow anyone of its behalf, or any other third party to, directly or indirectly: (i) use, modify, change, incorporate into or with other software, or create a derivative work of any part of the Software; (ii) sell, resell, license (or sub-license), lease, assign, transfer, pledge, rent or share Customer’s rights under this Agreement with or to anyone else; (iii) copy, distribute, publish or reproduce the Software (or any part thereof) for the benefit of third parties; (iv) use or permit the Software to be use to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express authorization of the Company; (v) disclose, publish or otherwise make publicly available the results of any benchmarking of the Software, or use such results for Customer own competing software development activities; (vi) modify, disassemble, decompile, reverse engineer, revise or enhance the Software or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Software, except to the extent otherwise permitted under applicable law, in the jurisdiction of use, notwithstanding this prohibition; (vii) remove or otherwise alter any of the Company's trademarks, logos, copyrights, notices or other proprietary notices or indicia, if any, fixed or attached to the Software as delivered to the Customer; (viii) ship, transfer or export the Software into any country, or make available or use the Software in any manner which is in violation of applicable export control laws, restrictions or regulations (ix) use the Software in a manner that would violate applicable data privacy laws or for any other unlawful purpose; (x) disclose, provide or otherwise make available trade secrets contained within the Software and related Documentation in any form to any third party without the prior written consent of the Company; (xi) use the Software for any purpose other than for the purpose for which the Software is designated for or other than in compliance with the terms of this Agreement; (xii) circumvent, disable or otherwise interfere with security-related features of the Software or features that enforce limitations on the use of the Software; (xiii) use any automated means to access the Software; (xiv) integrate the Software (or any part thereof) into Customer's hardware or systems other than as instructed by the Company; (xv) access, store, distribute, or transmit during the course of its use of the Software 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 unlawful, threatening, obscene or infringing material; and/or (xvi) use the Software in any other unlawful manner.
- Lawful Use. The Customer hereby declares and agrees that it shall only use the Software in a manner that complies with all applicable laws in the jurisdiction in which the Customer uses the Software, including, but not limited to, applicable restrictions concerning the protection of privacy and intellectual property including copyrights and any other intellectual property rights. The Software should be installed in accordance with the instructions of the Company and in accordance with the instructions set forth in the Documentation.
- Customer Data. The operation of the Software requires the Company to monitor, analyze and process certain data from the Customer’s systems (the “Customer’s Data”), in order to provide the services offered via the Software. As between the Customer and the Company, the intellectual property rights and all other rights, title and interest of any nature in and to the Customer Data are and shall remain the exclusive property of Customer. The Company shall be considered granted a revocable, non-exclusive, sub-licensable (solely to Company’s affiliates and service providers, to the extent necessary for the Company to perform its obligations hereunder), royalty-free and fully paid-up license to use the Customer's Data for the purpose of operating the Software. Except as set forth herein, nothing in this Agreement shall be construed as transferring any rights, title or interests in the Customer's Data to Company or any third party. It is hereby clarified that the Software is not intended for the processing of personal data (as such term, or its equivalents, are defined under applicable privacy and data protection laws). If the Company becomes aware that the Customer’s Data includes any personal data, it may suspend the Customer's use of the Software upon notice to the Customer.
- Anonymous Information. The Company may collect, use and publish Anonymous Information, and disclose it to its third-party service providers, in order to provide, improve and publicize the Company's programs and services, for R&D purposes and for any other legitimate business purpose. “Anonymous Information” means non-identifiable information which is derived from the use of the Software and/or Customer Data (e.g., aggregated and analytics information that does not identify an individual person or the Customer). The Company is and shall remain the sole owner of the Anonymous Information.
- Export Controls. Customer acknowledges that the Software may be subject to international laws governing the export of software to which the Software is subject (including without limitation, Israeli export control laws). The Customer agrees to comply with all such applicable laws. Fees and Payment Terms. Customer shall pay all applicable Subscription fees specified in the Listing Page (the
- Fees”). Any additional Subscription terms included in the Listing Page are hereby incorporated by reference into this Agreement. Unless otherwise specified in the Listing Page, Customer will pay all amounts due under this Agreement in U.S. Dollars. All amounts invoiced hereunder are due and payable within thirty (30) days of the date of the invoice, unless otherwise set forth in the Listing Page. 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. During any Renewal Term, the Company may change the Fees, provided that the Company provides, at least thirty (30) days prior written notice before such changes are to have effect.
- Free Trial. We may, at our sole discretion, offer a free-trial Subscription to the Software (“Free-Trial”), in accordance with the terms and conditions specified in the Listing Page. Please note that the features made available to Customers under the Free-Trial model, may be limited. The Free-Trial period will be stipulated on the Listing Page, or otherwise agreed with you in writing. We may impose, at any time and at our sole discretion, restrictions on the use of Software under the Free-Trial model, including without limitation, limitation on the availability of to certain features, limitations on the period of the Free-Trial period and so forth. Furthermore, we reserve the right to cease the provision of Free-Trials, at any time and at our sole discretion, including with respect to existing Free-Trial users, and to provide the Platform solely on a payment-based model. Notwithstanding anything to the contrary in this Agreement, during the Free-Trial period the Software is provided on an “as is” and “as available” basis without any warranty whatsoever and the Company will have no warranty, indemnity, maintenance and support or other obligations or liabilities with respect to the Free-Trial.
- Taxes. The amounts to be paid by Customer to the Company do not include any taxes. Customer will pay Company any applicable value added, sales or use taxes or like taxes Customer owes because Customer entered this Agreement and which the law allows the Company to collect from Customer. If Customer provides the Company with a valid exemption certificate, the Company will not collect taxes covered by that certificate. The Company is not liable for any taxes that Customer is legally obligated to pay, including but not limited to net income or gross receipts taxes, franchise taxes, and property taxes (“Customer Taxes”) which relate to the sale of goods and services under this Agreement. Customer agrees to indemnify and hold the Company harmless from Customer Taxes and any claims, costs (including reasonable attorneys’ fees) and liabilities that relate to such taxes. If the law requires Customer to withhold taxes from payments made by Customer to the Company, Customer may withhold such taxes and pay them to the appropriate taxing authority, provided that Customer promptly delivers to the Company an official receipt or other document necessary to allow the Company to claim a U.S. Foreign Tax Credit. Customer will ensure that it minimizes any taxes withheld to the extent allowed by law.
- Title & Ownership. The Software and the related Documentation are licensed and not sold. The Company and its licensors are and shall retain all right, interest and ownership in and to the Software and the related Documentation, including without limitation in and to any and all intellectual property rights (including, without limitation, copyrights, trade secrets, trademarks and patents) evidenced by or embodied in and/or attached/connected/related to the Software and/or the related Documentation. This Agreement does not convey to the Customer an interest in or to the Software and/or the related Documentation, but only a limited revocable right to use the Software and/or the related Documentation in accordance with the terms of this Agreement. Nothing in this Agreement constitutes a waiver of the Company’s intellectual property rights under any law. If the Customer contact the Company with feedback data (e.g., questions, comments, suggestions or the like) regarding the Software (collectively, “Feedback”), such Feedback shall be deemed non-confidential, and the Company shall have a non-exclusive, worldwide royalty-free and perpetual license to use or incorporate such Feedback into the Software and/or other current or future products or services of the Company (without Customer’s approval and without further compensation to the Customer).
- Confidentiality. 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) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, whether written or oral, and any such other information that, regardless of the manner in which it is furnished and given the totality of the circumstances, a reasonable person or entity 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 unauthorized use, access or disclosure. Neither Party shall use or disclose the Confidential Information of the other Party except as expressly permitted under this Agreement or by applicable law. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party. For the avoidance of doubt, the Documentation shall be considered as Confidential Information hereunder.
Third Party Software. The Software is based on software which is developed and owned by the Company and/or its licensors. The Software may use or include third party software, files and components that are subject to open source and third party license terms ("Third Party Components"). The Customer’s right to use such Third Party Components as part of, or in connection with the Software is subject to any applicable acknowledgements and license terms accompanying such Third Party Components contained therein or related thereto. If there is a conflict between the licensing terms of such Third Party Components and this Agreement, the licensing terms of the Third Party Components shall prevail in connection with the related Third Party Components. Such Third Party Components are provided on an
“AS IS” basis without any warranty of any kind and shall be subject to any and all limitations and conditions required by such third parties. The Customer hereby agree to such terms associated with the Third Party Components. Under no circumstances shall the Software or any portion thereof (except for the Third Party Components contained therein) be deemed "open source" or "publicly available" software. A list of said Third Party Components is available in the Software or its Documentation.
- Disclaimers. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS. THE COMPANY DOES NOT WARRANT THAT THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE SOFTWARE'S OPERATION WILL BE SECURE, UNINTERRUPTED, ERROR-FREE, FREE OF VIRUSES, BUGS, WORMS, OTHER HARMFUL COMPONENTS OR OTHER PROGRAM LIMITATIONS. TO THE EXTENT ALLOWED BY LAW, THE COMPANY EXPRESSLY DISCLAIMS ALL EXPRESS WARRANTIES, ALL IMPLIED WARRANTIES, AND ALL CONDITIONS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITION OF MERCHANTABILITY, NON-INTERFERENCE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. THE COMPANY SHALL NOT BE RESPONSIBLE FOR ANY OF THE CUSTOMER'S DATA WHICH WAS UPLOADED TO THE SOFTWARE. IN ADDITION, THE COMPANY WILL NOT BE RESPONSIBLE FOR ANY DAMAGES SUFFERED BY THE CUSTOMER AND/OR ANY OTHER PERSON, ARISING FROM, OR RELATED TO THE USE OF SUCH CUSTOMER'S DATA.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW (A) THE COMPANY OR ITS SUPPLIERS AND/OR LICENSORS SHALL NOT BE LIABLE WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO, ANY LOSS OR DAMAGE TO BUSINESS EARNINGS, LOST PROFITS OR GOODWILL AND LOST OR DAMAGED DATA OR DOCUMENTATION), SUFFERED BY ANY PERSON, INCLUDING THOSE ARISING FROM, AND/OR RELATED WITH AND/OR CONNECTED TO THE INSTALLATION OF THE SOFTWARE AND/OR ANY USE OF OR INABILITY TO USE THE SOFTWARE, THE RESULTS AND CONSEQUENCES OF USE OF THE SOFTWARE, EVEN IF THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN NO EVENT SHALL THE COMPANY'S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT FROM ALL CLAIMS OR CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE TOTAL PAYMENTS ACTUALLY MADE TO THE COMPANY FOR THE SOFTWARE, IF ANY, DURING THE TWELVE (12) MONTH PERIOD PRIOR TO ANY SUCH CLAIM OR CAUSE OF ACTION AROSE. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
- Indemnification. The Customer agrees to defend, indemnify and hold harmless the Company, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney's fees) arising from: (i) Customer unauthorized use of the Software; (ii) Customer violation of any term of this Agreement; and/or (iii) a third party claim, suit or proceeding that use of the Customer Data within the scope of this Agreement infringes any right of a third party.
- Term and Termination. Term. This Agreement is effective upon downloading, installing, operating, or otherwise using the Software, shall continue for the Free-Trial period specified in the Listing Page (to the extent offered by the Company) ("Trial Period") and shall thereafter automatically continue for an initial term of one (1) year (the “Initial Term”). Following the Initial Term, this Agreement shall automatically renew at the then-applicable Fees, as applicable, as such prices appear in the Listing Page, for successive one (1) year terms (each a “Renewal Term”, and together with the Triad Period and the Initial Term, the “Term”), unless: (i) the Company or Customer provides the other with ninety (90) days written notice prior to the end of any term of its intent not to renew, or (ii) this Agreement is terminated in accordance with Section 12.2 below. If Customer continues to use the Software past any renewal date, then Customer shall be deemed to have renewed the Agreement for the following term at the rates applicable for said new term.
- Termination. Material Breach. Either party may terminate this Agreement with immediate effect if the other party materially breaches this Agreement and such breach remains uncured (to the extent that the breach can be cured) fifteen (15) days after having received written notice thereof.
- Distress Event. In the event that either party becomes liquidated, dissolved, bankrupt or insolvent, whether voluntarily or involuntarily, or shall take any action to be so declared, the other party shall have the right to immediately terminate this Agreement.
- Effect of Termination. Upon termination of this Agreement: (i) the license granted to the Customer in this Agreement shall expire and the Customer, upon termination, shall immediately discontinue all further use of the Software; (ii) the Customer shall promptly remove the Software from all hard drives, networks and other all copies of the Software in Customer possession or under its control; and (iii) any sums paid by the Customer until the date of termination are non-refundable, and Customer shall not be relieved of its duty to discharge in full all due sums owed by the Customer to Company under this Agreement until the date of termination or expiration hereof, which sums shall become immediately due and payable on the date of termination or expiration of the Agreement.
- 12.3. Survival. 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.
- Miscellaneous. This Agreement represents the complete agreement concerning the subject matter hereof and may be amended only by a written agreement executed by both Parties. In any event of conflict between the terms of this Agreement and any other agreement with the Company relating to the Software, the terms of this Agreement shall prevail. This Agreement shall be construed and governed under the laws of the State of Israel (without reference to principles and laws relating to the conflict of laws) and the competent courts of the Tel-Aviv-Jaffa District, Israel shall have exclusive jurisdiction in any conflict or dispute arising out of this Agreement. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. 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. The Customer may not assign its rights or obligations under this Agreement without the prior written consent of the Company. The Company may assign or transfer its rights and/or obligations under this Agreement without restriction or notification. 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 Software resulting from circumstances or causes beyond the reasonable control of the Company (i.e., force majeure events). This Agreement may be executed in electronic counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same agreement.
BY PURCHASING A SUBSCRIPTION AND/OR ACCESSING AND/OR USING OF THE SOFTWARE, YOU ACKNOWLEDGE THAT (A) YOU HAVE READ AND REVIEWED THIS AGREEMENT IN ITS ENTIRETY, (B) YOU AGREE TO BE BOUND BY THIS AGREEMENT, (C) YOU HAVE AUTHORITY AND LEGAL RIGHT TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION, AND (D) THIS AGREEMENT CONSTITUTES BINDING AND ENFORCEABLE OBLIGATIONS ON YOUR BEHALF