End User License Agreement (EULA)
This Software as a Service Agreement for evaluation use (the “Agreement”) is made between you (both the individual using the Service (defined below) described under this Agreement and/or otherwise using the Company’s platform for creating interactive on-screen ‘Walk-Thrus’, known by the name DataRails System, as described at www.DataRails.com (the “DataRails Platform”), and any legal entity on whose behalf such individual is acting) (hereinafter: “You” or “Your” or “Customer”) and DataRails Ltd. of 10 HaUmanin Street, Tel Aviv (“Company”).
PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE ACCEPTING, AND/OR BEFORE USING THE SERVICE, OR ANY PART THEREOF. THE DataRails PLATFORM IS COPYRIGHTED AND PROVIDED AS A SERVICE (NOT SOLD). TAKING ANY STEP TO USE AND/OR LOG-IN TO THEDataRails PLATFORM CONSTITUTES YOUR ASSENT TO AND ACCEPTANCE OF THIS AGREEMENT. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT. YOUR USE OF THE DataRails PLATFORM IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST IMMEDIATELY CEASE ALL USE OF THE SERVICE.
IF YOU HAVE PURCHASED RIGHTS TO USING THE SERVICE FOR COMMERCIAL PURPOSES, THEN THIS AGREEMENT DOES NOT APPLY TO YOU AND YOUR USE. YOUR USE OF THE SERVICE IS GOVERENED BY THE SAAS AGREEMENT – COMMERCIAL USE WHICH CAN BE PROVIDED TO YOU BY THE COMPANY.
In addition to capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings set forth opposite each one of them:
“Confidential Information” – means any proprietary information of either party (“Disclosing Party”) disclosed to the other party hereto (“Receiving Party”) including without limitation, information relating to either party’s products, technology, know-how, specifications, and concepts; as well as information of business and commercial nature, of either party, all in any form or medium whatsoever including in written, physical, digitalized, oral or visual form. “Confidential Information” does not include information that is: (a) public knowledge at the time of disclosure or thereafter becomes generally known other than through an act of negligence by the Receiving Party; (b) already known to the other Receiving Party prior to its receipt from the Disclosing Party, as evident by written records; (c) demonstrably independently developed at any time by the Receiving Party without use of the Confidential Information received hereunder; (d) rightfully obtained by the Receiving Party from other unrestricted sources, as evident by its written records; or (e) disclosed with the prior written permission of the Disclosing Party.
“Updates and New Version/s” – shall mean a modification to the DataRails Platform, which incorporates corrections of errors and/or which provides functional or performance improvements or enhancements. Updates and New Version are usually designated as a change in the version number to the right of the decimal point (from x.1 to x.2).
2.1 Under this Agreement you are given an evaluation subscription only for your own internal review purposes and solely for a Limited Evaluation Scope (as defined below), to access and use the DataRails Platform via DataRails.com or any other website specified by the Company (the “Service”)
2.2 Subject to the terms and conditions of this Agreement, the Company hereby grants to Customer a personal, non-exclusive, non-transferable right to access and use the Service in connection with Customer’s own domains.
2.3. Restrictions: Other than the rights expressly specified hereunder, no other rights or interest whatsoever in the DataRails Platform and/or the Service and/or any component thereof, are transferred or granted to Customer. Without limiting the foregoing, Customer may not: (i) use the DataRails Platform or the Service for purposes other than the purposes explicitly set forth hereunder; (ii) copy of duplicate the DataRails Platform; (iii) reverse engineer or de-compile, modify or revise, attempt to access the source code of the DataRails Platform or any part thereof, or create derivative works thereof; (iv) transfer in whole or in part the right to use the Service or any part thereof; or (v) commercially utilize the Service, or any part thereof.
2.4. Certain portions of software provided with the DataRails Platform (by way of example only- JQuery) may be subject to “open source” or “free software” licenses (“Third Party Code”). Such Third Party Software is not subject to the terms and conditions of this Agreement, but is licensed under the terms and conditions of the license that accompanies such Third Party Software.
Except with respect to Third Party Code (as defined above), Company owns and shall retain all rights, including all intellectual property rights, in and to the DataRails Platform, and any and all adaptations, modifications, enhancements, or improvements thereto made by any party, and in and to Company’s Confidential Information. To remove any doubt, any content developed by Customer using the Service will be the property of the Customer.
Disclaimer of Warranty; Limitation of Liability.
4.1. Limitation of Liability. OTHER IN EVENTS OF WILFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE OF ANY NATURE OR KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST REVENURES OR LOSS OF GOODWILL, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT OF 1$.
4.2. Disclaimer of Warranty. CUSTOMER ACKNOWLEDGE THAT, THE DataRails PLATFORM AND ANY RELATED MATERIALS (IF ANY) PROVIDED TO CUSTOMER UNDER OR IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS. THE ENTIRE RISK ARISING OUT OF USE OR USE AND PERFORMANCE OF THE DataRails PLATFORM AND ANY SUCH RELATED MATERIALS IS BORNE BY CUSTOMER. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE WLKME PLATFORM AND ANY RELATED MATERIALS, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. OTHER THAN IN EVENTS OF WILFUL MISCONDUCT, IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER OR ANY OTHER THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE OF ANY NATURE OR KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOSSES OR DAMAGES OF ANY KIND, LOST PROFITS, LOST REVENURES OR LOSS OF GOODWILL, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.1. Each Receiving Party, shall maintain confidential and not, without the Disclosing Party prior consent, disclose to any third party any Confidential Information except to its own personnel, agents and officers having a legitimate need-to-know such Confidential Information for the purposes of this Agreement and who are bound by confidentiality obligations at least as protecting to Confidential Information as the terms of this Agreement, and the Receiving Party shall use Confidential Information only if and as required for the purpose of this Agreement.
5.2. The Receiving Party shall take all reasonably precautions necessary and appropriate to guard the confidentiality of the Confidential Information.
5.3. This Provisions of this Section 5 shall survive the termination of this Agreement for any reason for a period of 3 (three) years thereafter.
Term and Termination
6.1. This Agreement commences upon your initial use of the Service and will continue until terminated pursuant to the terms of this Agreement.
6.2. Termination by COMPANY. COMPANY reserves the right to terminate this Agreement, the rights granted hereunder, and the availability and use of the Service at any time upon 14 days prior notice to be either sent personally and/or specifically to Customer or generally posted on COMPANY websites (in which event the COMPANY shall not be required to provide Customer with any personal or further notice of such termination).
6.3. In case of a material breach of this Agreement by either Party not remedied within thirty (30) days from the other Party’s notice thereof, or in case either Party should become bankrupt or insolvent and such event had not been challenged within sixty (60) days of filing, the other Party shall have the right to terminate this Agreement with immediate effect.
Commercial Use of Service
Should Customer be interested to use the DataRails Platform and/or the Service, and/or any part thereof and related materials, for purposes beyond the scope expressly authorized by this Agreement, then Customer must enter into a separate agreement with Company under terms to be agreed upon by the parties. Any use of the Service, beyond the scope expressly authorized by this Agreement without an appropriate authorization from Company is in violation of copyright and patent laws and other intellectual property laws.
8.1. Any notice required or permitted to be given by either Party under this Agreement shall be in writing and may be delivered by courier, sent by registered letter, telefacsimile or electronic mail. When the notice is sent by telefacsimile or electronic mail, the sender shall confirm the notice by also sending the notice by courier or registered letter.
8.2. Neither Party may assign this Agreement in whole or in part without the prior written consent of the other Party. Such consent shall not be unreasonably withheld. Notwithstanding the above, such consent shall not be required, in connection with any merger, consolidation, reorganization or restructuring, or the sale of substantially all of a Party’s assets as long as such successor or assignee of this Agreement agrees in writing to be bound by this Agreement.
8.3. This Agreement shall be governed by and construed in accordance with the laws of Israel.