DATARAILS BUSINESS AGREEMENT
In addition to the terms defined above and in this Agreement, the following terms shall have the following meaning, unless the context otherwise requires:
1.1. “Authorized User” means a specific employee of the Licensee who and is permitted by Licensee to access and use the Software.
1.2. “Documentation” means the user’s guides and technical manuals of the Software, and all other written and or electronic materials relating thereto, provided by DataRails and/or Partner to Licensee under this Agreement.
1.3. “Licensee Data” means the information and data added by Licensee in its use of the Software.
1.4. “Maximum Number of Authorized Users” means the maximum number of Authorized User licenses Licensee has acquired as designated in the applicable Order Form.
1.5. “Services” means the services to be provided by or on behalf of DataRails to Licensee pursuant to the Order Form.
1.6. “Software” means the object code version of DataRails’s solution as further detailed in the Order Form, including Documentation, updates and upgrades thereof (to the extent delivered).
1.7. “Order Form” means a document duly executed by the parties or the Partner Order describing the Software and the Services (if any) to be provided by the DataRails and the fees to be paid by Licensee with respect thereto each of which shall form part of this Agreement. Each Order Form under this Agreement shall be governed by and construed in accordance with the terms of this Agreement unless explicitly noted otherwise in the Order Form.
2. The License
2.1. Subscription to the Software. Subject to Licensee’s compliance with the terms and conditions of this Agreement, during the Term (as defined below), DataRails hereby grants Licensee the right to access and use the Software, solely for Licensee’s internal use purposes, provided that the Software may be accessible only to the specific named Authorized User(s) designated by Licensee which in no event exceed the Maximum Number of Authorized Users (“License”).
Licensee acknowledges that, as of the Effective Date, the Software requires a web browser version that supports one of the following: Internet Explorer 11 and above, Google Chrome or Firefox. Licensee is solely responsible for upgrading to the then-current minimum web browser requirements that DataRails defines from time to time. DataRails shall notify Licensee of the then-current web browser requirements.
2.2. Reservation of Rights; Use Restrictions. Other than the rights expressly specified hereunder, no other rights or interest whatsoever in the Services and/or any component thereof, are transferred or granted to Customer. Without limiting the foregoing, Customer may not: (i) use the Services for purposes other than the purposes explicitly set forth hereunder; (ii) copy of duplicate any element of our Services; (iii) reverse engineer or de-compile, modify or revise, attempt to access the source code of any part of our Services, or create derivative works thereof; (iv) transfer in whole or in part the right to use the Services or any part thereof; or (v) commercially utilize the Services, or any part thereof.
2.3. Certain portions of software provided with the Services may be subject to “open source” or “free software” licenses (“Third Party Code”). Such Third Party Software is not subject to our Terms, but is licensed under the terms and conditions of the license that accompanies such Third Party Software.
2.4.You acknowledge and agree that DataRails has the right, at any time and for any reason, to redesign or modify the organization, structure, specifications, “look and feel,” navigation, features and other elements of the Services or any part thereof.
2.5. Changes in Number/Identity of the Authorized Users. In order to access and use the Software, each respective Authorized User will be required to login using a user name and password (“Login Details”). Licensee must not allow anyone other than the respective Authorized User to access and use the Authorized User’s Login Details and shall ensure that the Authorized Users shall comply with the above restriction. Licensee acknowledges and agrees: (i) to keep, and ensure that each Authorized User keeps, all Login Details secure at all times; (ii) that it remains solely responsible and liable for the activity that occurs on or in connection with the use of Login Details; (iii) that the Login Details for each Authorized User may only be used by that Authorized User, and that multiple people may not share the same Login Details; and (iv) to promptly notify DataRails in writing if Licensee becomes aware of any unauthorized access or use of Login Details or the Software. Licensee can elect to increase the Maximum Number of Authorized Users via written request, and DataRails shall increase Authorized Users and adjust the prospective License fees accordingly.
Subject to prior written notification to DataRails, each such Authorized User license may be reassigned from time to time to new Authorized Users who are replacing former Authorized Users who have terminated employment or otherwise changed job status and no longer need to use the Software under this Agreement. Each new Authorized User will be required to immediately change the former Authorized User’s Login Details and will be subject to the same restrictions as the former Authorized User.
2.6. Documentation. DataRails and/or Partner may make available Documentation to Licensee for Licensee to use for Licensee’s internal business purposes and solely in connection with Licensee’s use of the Software during the Term of this Agreement. Licensee may print or copy the Documentation as needed for its own internal business purposes provided that all copyright notices are included therein. The Documentation shall be considered the Confidential Information of DataRails. Unless the Documentation is separately referred to herein, all references in this Agreement to the Software shall include the Documentation.
3. SUBMITTED INFORMATION AND MATERIALS
3.1. You hereby undertake to meet and be responsible for the following in connection with any and all material and information (including reviews) provided by you or on your behalf (hereinafter “Submitted Information and Materials”):
3.1.1. Submitted Information and Materials must not contain information or materials which are inappropriate, inaccurate, misleading, fraudulent or otherwise illegal.
3.1.2. The Submitted Information and Materials must not contain, feature or promote any content, products, services, or other information that may be illegal to sell or promote under any applicable law, or that may be perceived as unlawful, inflammatory, offensive, or otherwise inconsistent with the spirit of DataRails and/or its affiliates’ services.
3.2. You shall be responsible and liable for Submitted Information and Materials, and defend, hold harmless and indemnify DataRails and its affiliates from and against any damages which may result from the submission, display and/or use of any such Submitted Information and Materials.
3.3. While DataRails shall not be liable for any and all parts of the Submitted Information and Materials, DataRails shall be entitled to remove or edit any of the Submitted Information and Materials which DataRails believes to be inaccurate or inappropriate.
4. Title & Ownership
4.1.You acknowledge and agree that DataRails is the exclusive owner (including, without limitation, to any and all intellectual property or proprietary rights) of the Services, the Documentation and any underlying technology and software that may be created in connection with the use of or registration to the Services.
4.3.Feedback. It is further agreed that to the extent Licensee provides DataRails and/or the Partner suggestions, comments or feedback (whether orally or in writing) with respect to the Software (the “Feedback”), Licensee acknowledges that any and all rights, including intellectual property rights in such Feedback shall belong exclusively to DataRails and that such shall be considered DataRails’ Confidential Information and Licensee hereby irrevocably transfers and assigns to DataRails all intellectual property rights in such Feedback and waives any and all moral rights that Licensee may have in respect thereto. It is further understood that use of Feedback, if any, may be made by DataRails at its sole discretion, and that DataRails in no way shall be obliged to make use of any kind of the Feedback or part thereof.
6.1.Warranties. DataRails warrants that, to the best of its knowledge, it has the right to grant Licensee the License. DataRails’ sole liability for any breach of this warranty or any other warranty under this Agreement shall be, at DataRails’ sole discretion: (i) to replace or repair the Software or the applicable portion thereof; or (ii) to terminate this Agreement provided that, DataRails will reimburse to Licensee any amount pre-paid by Licensee for the remaining unused period of the License. The foregoing warranties are contingent upon Licensee’s proper use of the Software, and shall not apply to damage caused by abuse, misuse, alteration, neglect, or unauthorized repair or installation, or by the use or attempted use of software other than that supplied and supported by DataRails. The foregoing constitutes Licensee’s sole and exclusive remedy for breach by DataRails of any warranties made under this Agreement.
6.2.Disclaimer. THE DOCUMENTATION AND CONTENT OF THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESSED OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, DATARAILS DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
DATARAILS DOES NOT WARRANT THAT THE DOCUMENTATION AND CONTENT DISPLAYED IN THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THEY ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS AND/OR THAT DATARAILS WILL CORRECT ANY ERRORS IN THE SOFTWARE.
DATARAILS DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR CONTENT IN THE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU ARE RESPONSIBLE FOR TAKING ALL PRECAUTIONS YOU BELIEVE NECESSARY OR ADVISABLE TO PROTECT YOU AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY VIRTUE OF YOUR USE OF OR RELIANCE UPON THE WEB SITE AND/OR ANY OF THE SOFTWARE.
DATARAILS DOES NOT PROVIDE A WARRANTY AGAINST, AND LICENSEE AGREES THAT DATARAILS SHALL NOT BE HELD RESPONSIBLE FOR, ANY CONSEQUENCES TO LICENSEE OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET (SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS.
LICENSEE’S USE OF AND RELIANCE UPON THE SOFTWARE IS AT LICENSEE’S SOLE DISCRETION AND RISK, AND DATARAILS SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER TO LICENSEE IN CONNECTION WITH ANY OF THE FOREGOING.
DATARAILS DISCLAIMS ANY WARRANTIES OR REPRESENTATIONS PROVIDED OR MADE TO LICENSEE BY THE PARTNER. SUCH WARRANTIES AND REPRESENTATONS ARE THE SOLE RESPONSIBILITY OF THE PARTNER.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
7. Limitation of Liability
IN NO EVENT SHALL DATARAILS’ AGGREGATE LIABILITY FOR ANY AND ALL DAMAGES AND LOSSES THAT ARISE UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING ORDER FORM), OR THAT RESULT FROM LICENSEE’S USE OF OR INABILITY TO USE THE SOFTWARE, EXCEED THE AMOUNT PAID BY LICENSEE TO DATARAILS OR A PARTNER HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT.
UNDER NO CIRCUMSTANCES WHATSOEVER WILL DATARAILS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY OTHER ENTITY FOR ANY DIRECT, COMPENSATORY, INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOST DATA OR OTHER INTANGIBLE), SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES THAT RESULT FROM OR RELATE IN ANY MANNER WHATSOEVER TO YOUR USE OF THE WEB SITE, OR RELIANCE ON ANY OF THE SOFTWARE OR TO ANY ERRORS, INACCURACIES, OMISSIONS, DEFECTS, SECURITY BREACHES, OR ANY OTHER FAILURE TO PERFORM BY DATARAILS.
YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES.
DATARAILS SHALL NOT BE LIABLE FOR ANY DAMAGE TO YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES, OR DOWNLOADING MATERIAL, IMAGES, DATA, TEXT, VIDEO, OR AUDIO FILES, REGARDLESS OF THE CAUSE, WHICH YOU DO AT YOUR OWN RISK.
8.1. Confidential Information. Each party (the “Disclosing Party”) may from time to time during the Term, disclose to the other party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including technical, marketing, financial, employee, planning and other confidential or proprietary information (“Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend. The Disclosing Party will identify all Confidential Information disclosed orally as confidential at the time of disclosure. Regardless of whether so marked or identified, however, any information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party, will be considered Confidential Information of the Disclosing Party. For clarity, any information related to the Software shall be deemed as DataRails’ Confidential Information.
8.2. Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder; and in any event the Receiving Party shall assume full responsibility for any breach of this Agreement caused by any such employees or contractors. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
8.3. Exceptions. The Receiving Party’s obligations under this Section 0 with respect to any Confidential Information of the Disclosing Party shall not apply to and/or shall terminate if and when the Receiving Party can document that 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. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order or a court of similar judicial or administrative body; provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
9. Term and Termination
9.1. Term. This Agreement shall commence on the Effective Date and shall remain in force for a period of twelve (12) months (“Initial Term”). Following the Initial Term, this Agreement shall automatically be renewed for successive twelve (12) months term (each a “Renewal Term”), unless either party provide the other party with a written notice to terminate the Agreement at least 30 days prior to the expiration of the applicable Renewal Term (The “Initial Term” and all Renewal Terms shall collectively be referred to as the “Term”).
9.2. Termination for Cause. This Agreement and/or any applicable Order Form may be terminated by either party, for material breach of this Agreement or Order Form by the other party, by written notice to the party in breach effective upon receipt of such notice, provided however that the terminating party has granted a 15 day period to cure such breach and that the party in breach has not cured such breach within such period of time. The termination of this Agreement by either party shall not prevent either party from claiming damages for any breach.
9.3. Consequences. Upon termination, Licensee shall: (i) promptly pay to the DataRails any monies due and owing to DataRails in relation to this Agreement (ii) immediately cease use of the Software; (iii) return the Software and all copies thereof, as well as it related Documentation to DataRails; (iv) erase or otherwise destroy all copies of the Software in its possession, which are fixed or resident in the memory or hard disks of its devices; and (v) return to the DataRails any and all of the DataRails’ Confidential Information then in its possession. Upon termination, the DataRails shall return to Licensee any and all of Licensee’s Confidential Information then in its possession.
9.4. Survival. The following provisions shall survive the end, expiration, cancellation, or termination of this Agreement: 1 (Definitions), 4 (Title &Ownership), 6 (Warranties), 7 (Limitation of Liability), 0 (Confidentiality), 9 (Term and Termination), 1010 ( Indemnification) and 13 (Miscellaneous).
10.1. DataRails shall, at its expense, defend and hold Licensee harmless from and against any action, claim, suit or proceeding (“Claim”) and shall indemnify Licensee for all costs, liabilities, damages and reasonable attorney’s fees finally awarded against Licensee by a court of competent jurisdiction or paid by Licensee in settlement of such Claim, solely to the extent such Claim arises from a third party claim alleging that the Software, when used as permitted by DataRails and in conformity with the Documentation, infringes such third party’s copyrights or trade secrets, provided such amounts awarded must actually be paid and any settlement of any such Claim has been agreed to by DataRails.
DataRails’ indemnity obligation shall not extend to Claim based on: (i) an unauthorized modification or use of the Software made by any third party other than DataRails, where the Software, without such modification or unauthorized use, would not be infringing; (ii) the combination of non- infringing items with any items not supplied by DataRails, where the Software, without such combination, would not be infringing; (iii) the use by Licensee of any version which is not the latest available version of the Software; or (iv) an infringement by any Third Party Data and Components.
10.2. As a condition to the defense set forth above, Licensee shall give DataRails prompt notice of any such Claim made against it, and grant DataRails sole control of the defense of any such Claim, suit or proceeding, including appeals, negotiations and any settlement or compromise thereof. If the Software or part thereof becomes, or in DataRails’ opinion may become, subject to any claim of infringement of any duly issued patent or copyright or asserted trade secret right and its use is thereby enjoined, DataRails’ sole liability shall be, at DataRails’ option, to either: (a) procure for Licensee the right to continue using the Software; (b) replace or modify the Software, so that it is non-infringing; or (c) DataRails may terminate this Agreement and will reimburse to Licensee any amount pre-paid by Licensee for the remaining unused period of the License, upon the return or destruction (and certification of destruction) of the Software. This Section states DataRails’ entire liability, and Licensee’s exclusive remedy, for claims or alleged or actual infringement and shall be subject to the limitation of liability as set forth in Section 7.
11. Government Use.
If Licensee is part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software may be restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Software is a “commercial item”, “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR Part 12.212, and DFARS Part 227.7202 and 252.7014(a) and their successors. In accordance with such provisions, any use of the Software by the Government shall be governed solely by the terms of this Agreement.
12. Export Laws.
Licensee agrees to comply fully with all U.S., Israeli, and all applicable export laws and regulations to ensure that neither the Software nor any technical data related thereto are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. For clarity, and without derogating from Section 9 (Term and Termination) above, in case of any change of any applicable law, policy or regulation, which might affect DataRails’s business, DataRails will have the right to terminate this Agreement and the license granted hereunder and the Licensee shall have no claims regarding such termination.
13.1. Governing Law. This Agreement shall be governed by the laws of the State of Israel, without reference to its conflict of laws rules. The parties agree that exclusive jurisdiction for any dispute arising out of or relating to this Agreement lies within the competent courts of Tel Aviv, Israel.
13.2. Waiver. No waiver of rights arising under this Agreement shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No failure or delay by either party in exercising any right, power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy and/or prejudice any rights of such party.
13.3. Notices. Legal notices given by the parties to one another in connection with this Agreement shall be provided by writing, prepaid mail, email, receipted courier service, or hand delivery to the party to be notified.
13.4. No Third-Party Beneficiaries. This Agreement is intended solely for the benefit of the parties. In no event will any third party have any rights in relation to this Agreement or any right to enforce the terms hereof.
13.5. Force Majeure. DataRails is excused for any delays, losses or damages due to causes beyond its control, including, without limitation, fire, explosion, power irregularities or surges, acts of God, earthquakes, rains, floods, lightning, labor unrest, strikes, strife or any other cause that was not reasonably foreseeable on the date of signing of this Agreement.
13.6. Subcontracting and Assignment. Licensee shall not assign and/or subcontract any of its rights and obligations under this Agreement, except with DataRails’s prior written consent. DataRails may assign any of its rights and/or obligations hereunder at DataRails’s sole discretion provided that such DataRails’s assignee agrees to be subject to the terms of this Agreement.
13.7. Public Mention of this Agreement. Subject to Licensee’s prior permission, DataRails may disclose that Licensee is a licensee of the Software in DataRails’ advertising, website, marketing materials, press, promotion and similar public disclosures.
13.8. Severability. If any provision under this Agreement is determined by a court to be unenforceable, that provision will be deemed to be modified to the extent necessary to allow it to be enforced to the extent permitted by law, or if it cannot be modified, the provision will be severed and deleted, and the remainder of the Agreement will continue in effect.
13.9. Entire Agreement. The parties have read this Agreement, and agree to be bound by its terms, and further agree that it constitutes the complete and entire agreement of the parties and supersedes all previous communications between them, oral or written, relating to the subject matter hereof. No representations or statements of any kind made by either party that are not expressly stated herein shall be binding on such party. Facsimile signatures and/or by signed e-mail (using a .pdf or other scanned version) shall be sufficient for purposes of executing this Agreement. This Agreement may be executed in counterparts