PLEASE READ THESE TERMS AND CONDITIONS OF BSELLER LTD. AND EQUIP (THE “COMPANY”) VERY CAREFULLY
BSELLER IS A HOLDING COMPANY THAT OWNS THE EQIP BRAND AND PERFORM ITS SERVICES AS AN OFFICIAL, TRAINED PARTNER, RESELLER AND SERVICE PROVIDER OF LEADING GLOBAL TECH BRANDS.
THE TERMS AND CONDITIONS OF SALE OF SOFTWARE AND/OR SERVICE PROJECTS ARE LIMITED TO THOSE CONTAINED HEREIN. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM DELIVERED BY YOU (“CUSTOMER”) ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN.
BY ACCEPTING DELIVERY OF THE SERVICES OR BY ENGAGING THE COMPANY AFFILIATE IDENTIFED ON THE INVOICE, STATEMENT OF WORK OR OTHER COMPANY DOCUMENTATION (“VENDOR”) TO PERFORM OR PROVIDE ANY SERVICES, CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS UNLESS CUSTOMER AND COMPANY HAVE SIGNED A SEPARATE AGREEMENT, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN. IN ANY EVENT VENDORS TERMS AND CONDITIIONS, AS SHALL BE AMENDED FROM TIME TO TIME REGARDING THE SPECIFIC SERVICES PURCHASED BY CUSTOMER SHALL APPLY TO CUSTOMER AND SHALL PREVAIL IN CASE OF CONTRADICTION.
ANY GENERAL DESCRIPTION OF THE TYPES OF SERVICES AND RESULTS THEREOF POSTED ON ANY VENDOR WEBSITE OR MOBILE APPLICATION DO NOT CONSTITUTE PART OF THE AGREEMENT BETWEEN COMPANY AND CUSTOMER.
Important Information About These Terms and Conditions
These Terms and Conditions constitute a binding contract between Customer and Company and are referred to herein as either “Terms and Conditions” or this “Agreement”. Customer accepts these Terms and Conditions by making a purchase from or placing an order with Company for Vendor services or directly with any Vendor Website or Mobile Application (each, a “Site”) or engaging Vendor to perform or provide any Services (as this and all capitalized terms are defined herein). These Terms and Conditions are subject to change without prior notice, except that the Terms and Conditions posted on a Site at the time Customer places an order or signs a Statement of Work will govern the order in question, unless otherwise agreed in writing by Company and Customer.
Customer consents to receiving electronic records, which may be provided via a Web browser or e-mail application connected to the Internet; individual consumers may withdraw consent to receiving electronic records or have the record provided in non-electronic form by contacting Company. In addition, Internet connectivity requires access services from an Internet access provider. Contact your local access provider for details. Electronic signatures (or copies of signatures sent via electronic means) are the equivalent of written and signed documents.
Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions or any purchase order or invoice, or any document in electronic or written form that is signed and delivered by each of the parties for the performance of Services other than Third Party Services (each, a “Statement of Work”). This Terms and Conditions contains the entire understanding of the parties with respect to the matters contained herein and supersedes and replaces in its entirety any and all prior communications and contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the parties with respect to the subject matter hereof.
Governing Law
THESE TERMS AND CONDITIONS, ANY STATEMENTS OF WORK, THE SERVICES HEREUNDER AND ANY SALE OF PRODUCTS HEREUNDER WILL BE GOVERNED BY THE LAWS OF ISEARL, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN THE TEL-AVIV-JAFFA DISTRICT, ISRAEL, AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. Except in the case of nonpayment, neither party may institute any action in any form arising out of these Terms and Conditions more than one (1) year after the cause of action has arisen. The rights and remedies provided Company under these Terms and Conditions are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available at law or in equity.
Services
Customers may order services (collectively, “Services”) from or through Company from time to time. Certain Services may be provided by third parties and are sold by Company as distributor or sales agent (“Third Party Services”).
In the case of Third Party Services, Customer shall consider the third party to be the contracting party and the third party shall be the party responsible for providing the services and warranties related thereto to the Customer and Customer will look solely to the third party for any loss, claims or damages arising from or related to the provision of such Third Party Services. Customer and Customer’s Affiliates (defined below) hereby release Company and Company’s Affiliates (defined below) from any and all claims arising from or relating to the purchase or provision of any such Third Parties Services. Any amounts, including, but not limited to, taxes, associated with Third Party Services which may be collected by Company will be collected solely in the capacity as an independent sales agent. “Affiliate” means, with respect to a party, an entity that controls, is controlled by, or is under common control with such party.
Where Services are ordered in a Statement of Work, each Statement of Work hereby incorporates these Terms and Conditions and constitutes a separate agreement with respect to the Services performed. Company, or any of its Affiliates on behalf of Company, may execute a Statement of Work. In the event of an addition to or a conflict between any term or condition of the Statement of Work and these Terms and Conditions, these Terms and Conditions will control, except as expressly amended in the applicable Statement of Work by specific reference to these Terms and Conditions. Each such amendment will be applicable only with respect to such Statement of Work and not to future Statements of Work. Changes to the scope of the Services described in a Statement of Work will be made only in a writing executed by authorized representatives of both parties. Company will have no obligation to commence work in connection with any such change, unless and until the change is agreed upon in that writing executed by both parties. All such changes to the scope of the Services will be governed by these Terms and Conditions and the applicable Statement of Work. Each Statement of Work may be signed in separate counterparts each of which shall be deemed an original and all of which together will be deemed to be one original.
Cooperation
In addition to any specific Customer duties set forth in any applicable Statement of Work, Customer agrees to cooperate with Company and/or Vendor (as applicable) in connection with performance of the Services by providing: (i) timely responses to Company/Vendor’s inquiries and requests for approvals and authorizations, (ii) access to any information or materials reasonably requested by Company/Vendor which are necessary or useful as determined by Company/Vendor in connection with providing the Services, including, but not limited to, physical and computer access to Customer’s computer systems, and (iii) all Required Consents necessary for Company/Vendor to provide the Services. “Required Consents” means consents or approvals required to give Company/Vendor , their Affiliates, and its and their subcontractors the right or license to access, use and modify all data and third party products. Customer acknowledges and agrees that the Services are dependent upon the completeness and accuracy of information provided by Customer and the knowledge and cooperation of the agents, employees or subcontractors (“Personnel”) engaged or appointed by Customer who are selected by Customer to work with Company/Vendor .
Company will follow all reasonable Customer security rules and procedures, as communicated in writing by Customer to Company from time to time.
Access
Company/Vendor may perform the Services remotely, or such other locations as it deem appropriate. Customer will also provide Company/Vendor access to Customer’s staff and any other Customer resources (and when the Services are provided at another location designated by Customer, the staff and resources at such location) that Company/Vendor determines are useful or necessary for it to provide the Services. When the Services are provided on Customer’s premises or at another location designated by Customer, Customer agrees to maintain adequate insurance coverage to protect Company/Vendor and Customer’s premises and to indemnify and hold Company/Vendor and its Affiliates, and its and their agents and employees harmless from any loss, cost, damage or expense (including, but not limited to, attorneys’ fees and expenses) arising out of any product liability, death, personal injury or property damage or destruction occurring at such location in connection with the performance of the Services, other than solely as a result of Company’s willful misconduct.
Payment
Orders are not binding upon Company until accepted by Company. Customer agrees to pay the total purchase price for the Services. Terms of payment are within Company’s sole discretion. Invoices are due and payable within the time period specified on the invoice, measured from the date of invoice, subject to continuing credit approval by Company. Company, or any of its Affiliates on behalf of Company may issue an invoice to Customer. Company may invoice Customer for all of the Services described in a Statement of Work or any portion thereof. Customer agrees to pay interest on all past-due sums at the lower of one and one-half percent (1.5%) per month or the highest rate allowed by law. Customer will pay for, and will indemnify and hold Company and its Affiliates harmless from, any applicable sales, use, transaction, excise or similar taxes and any federal, state or local fees or charges (including, but not limited to, environmental or similar fees), imposed on, in respect of or otherwise associated with any Statement of Work or the Services. Customer must claim any exemption from such taxes, fees or charges at the time of purchase and provide Company with the necessary supporting documentation. In the event of a payment default, Customer will be responsible for all of Company’s costs of collection, including, but not limited to, court costs, filing fees and attorneys’ fees. In addition, if payments are not received as described above, Company reserves the right to suspend Services until payment is received. Except as otherwise specified on an applicable Statement of Work, Customer will reimburse Company for all reasonable out-of-pocket expenses incurred by Company in connection with the performance of the Services.
To ensure uninterrupted service, all subscriptions to the Services are renewed automatically. Customer hereby authorize Company to charge subscription fees for the renewal period to the payment method on file. All subscriptions are renewed at the subscription level(s) and fees in effect at the time the then-current subscription term ends. Customer may cancel the subscription at any time by following the termination instructions below.
Upon registering for Services Costumer will be required to designate a valid payment method. Customer hereby authorize Company to charge to Customer designated account all fees relating to the Services, and Customer agrees to pay all such fees in accordance with the applicable payment method terms and conditions. The payment shall be made on an annual or monthly basis, depend on the Services and payment path the Customer chose, and shall be paid by the Customer credit card to be inserted upon registration. Any other payment method will be agreed on a personal basis, at the Company’s sole discretion.
Customer access to or use of the Services shall be contingent upon the payment of all applicable fees related to Services at the time.
In case the Company agreed to accept payment via bank transfer, all bank commissions are Customer’s responsibility to handle. Customer is required to mark “OUR” while sending funds with the banking system, Note, any bank commissions that will apply to Company will remain as open balance and may delay the Services ordered until balance is cleared.
Warranties
Customer understands that Company is not the owner of the software purchased by Customer hereunder (the “Software”) and the only warranties offered are those of the owner and provider of the Software, not Company or its Affiliates. In purchasing the Software, Customer is relying on the Software owner’s specifications only and is not relying on any statements, specifications, photographs or other illustrations representing the Software that may be provided by Company or its Affiliates. COMPANY AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO SOFTWARE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NONINFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY SOFTWARE PROVDER’S WARRANTY. Customer expressly waives any claim that it may have against Company or its Affiliates based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights (each a “Claim”) with respect to any Software and also waives any right to indemnification from Company or its Affiliates against any such Claim made against Customer by a third party. Customer acknowledges that no employee of Company or its Affiliates is authorized to make any representation or warranty on behalf of Company or any of its Affiliates that is not in these Terms and Conditions.
Company makes no warranties to the Customer and the Customer hereby acknowledges that Company makes no warranties in regard to the applicability of all laws and regulations affecting, without limitation the sale, use and labelling of the Software which are in force within the Customer’s territory.
Customer further acknowledges and agrees that Company makes no representations, warranties or assurances that the Software is designed for or suitable for use in any high risk environment, including but not limited to aircraft or automobile safety devices or navigation, life support systems or medical devices, nuclear facilities, or weapon systems, and Customer agrees to indemnify Company in connection with any such use of the Software.
Company warrants that the Services will be performed in a good and workmanlike manner. Customer’s sole and exclusive remedy and Company’s entire liability with respect to this warranty will be, at the sole option of Company, to either (a) use its reasonable commercial efforts to reperform or cause to be reperformed any Services not in substantial compliance with this warranty or (b) refund amounts paid by Customer related to the portion of the Services not in substantial compliance; provided, in each case, Customer notifies Company in writing within five (5) business days after performance of the applicable Services. EXCEPT AS SET FORTH HEREIN OR IN ANY STATEMENT OF WORK THAT EXPRESSLY AMENDS COMPANY’S WARRANTY, AND SUBJECT TO APPLICABLE LAW, COMPANY MAKES NO OTHER, AND EXPRESSLY DISCLAIMS ALL OTHER, REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DURABILITY, TITLE, ACCURACY OR NON-INFRINGEMENT) ARISING OUT OF OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY RELATING TO THIRD PARTY SERVICES, ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN PERFORMING SERVICES AND ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIVE OF COMPANY OR OF ITS AFFILIATES IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF COMPANY OR ANY OF ITS AFFILIATES THAT IS NOT IN THESE TERMS AND CONDITIONS OR IN A STATEMENT OF WORK EXPRESSLY AMENDING COMPANY’S WARRANTY.
Unless otherwise agreed upon Company and Customer in writing, Customer shall be solely responsible for daily back-up and other protection of its data and software against loss, damage or corruption. Customer shall be solely responsible for reconstructing data (including but not limited to data located on disk files and memories) and software that may be lost, damaged or corrupted during the performance of Services. COMPANY, ITS AFFILIATES, AND ITS AND THEIR SUPPLIERS, SUBCONTRACTORS AND AGENTS ARE HEREBY RELEASED AND SHALL CONTINUE TO BE RELEASED FROM ALL LIABILITY IN CONNECTION WITH THE LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE, AND CUSTOMER ASSUMES ALL RISK OF LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE IN ANY WAY RELATED TO OR RESULTING FROM THE SERVICES.
Company will not be responsible for and no liability shall result to Company or any of its Affiliates or Vendor for any delays in delivery or in performance which result from any circumstances beyond it’s reasonable control, including, but not limited to, Software unavailability, carrier delays, delays due to fire, severe weather conditions, failure of power, labor problems, acts of war, terrorism, embargo, acts of God or acts or laws of any government or agency.
Pricing Information; Availability Disclaimer
Company reserves the right to make adjustments to pricing, Software and Service offerings for reasons including, but not limited to, changing market conditions, Software discontinuation, supplier price changes and errors in advertisements. All orders are subject to Software availability and the availability of Personnel to perform the Services. Therefore, Company cannot guarantee that it will be able to fulfill Customer’s orders. If Services are being performed on a time and materials basis, any estimates provided by Company are for planning purposes only.
Credits
Any credit issued by Company to Customer for any reason must be used within two (2) years from the date that the credit was issued and may only be used for future purchases of Software and/or Services. Any credit or portion thereof not used within the two (2) year period will automatically expire.
Limitation of Liability
UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL COMPANY, ITS AFFILIATES , ITS VENDORS OR ITS OR THEIR SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY COMPANY ITS AFFILIATES BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE PRODUCTS OR SERVICES; OR (D) ANY UNAVAILABILITY OF THE PRODUCT FOR USE OR ANY LOST, DAMAGED OR CORRUPTED DATA OR SOFTWARE. IN THE EVENT OF ANY LIABILITY INCURRED BY COMPANY OR ANY OF ITS AFFILIATES, THE ENTIRE LIABILITY OF COMPANY AND ITS AFFILIATES FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM OR THE SPECIFIC SERVICES GIVING RISE TO THE CLAIM; OR (B) $50,000.00.
Limited License
Company is the sole owner of all IP, work product, materials and other including but not limited to, all inventions, discoveries, methods, processes, formulae, ideas, concepts, techniques, know-how, data, designs, models, prototypes, works of authorship, computer programs, proprietary tools, methods of analysis and other information (whether or not capable of protection by patent, copyright, trade secret, confidentiality, or other proprietary rights) or discovered in the course of performance of this Agreement that are embodied in such work or materials (“Work Product”). Customer’s sole rights to the deliverables to be provided or created (individually or jointly) in connection with the Services, (“Deliverables”) will be, upon payment in full, a non-transferable, non-exclusive, royalty-free license to use such Deliverables solely for Customer’s internal use. Customer will have no ownership or other property rights thereto and Customer shall have no right to use any such Deliverables for any other purpose whatsoever. Customer acknowledges that Company may incorporate intellectual property created by third parties into the Deliverables (“Third Party Intellectual Property”). Customer agrees that its right to use the Deliverables containing Third Party Intellectual Property may be subject to the rights of third parties and limited by agreements with such third parties.
Confidential Information
Each party anticipates that it may be necessary to provide access to information of a confidential nature of such party, the Affiliates or a third party (hereinafter referred to as “Confidential Information”) to the other party in the performance of this Agreement and any Statement of Work. “Confidential Information” means any information or data in oral, electronic or written form which the receiving party knows or has reason to know is proprietary or confidential and which is disclosed by a party in connection with this Agreement or which the receiving party may have access to in connection with this Agreement, including but not limited to the terms and conditions of each Statement of Work. Confidential Information will not include information which: (a) becomes known to the public through no act of the receiving party; (b) was known to the receiving party, or becomes known to the receiving party from a third party having the right to disclose it and having no obligation of confidentiality to the disclosing party with respect to the applicable information; or (c) is independently developed by agents, employees or subcontractors of the receiving party who have not had access to such information. To the extent practicable, Confidential Information should be clearly identified or labeled as such by the disclosing party at the time of disclosure or as promptly thereafter as possible, however, failure to so identify or label such Confidential Information will not be evidence that such information is not confidential or protectable.
Each party agrees to hold the other party’s Confidential Information confidential for a period of three (3) years following the date of disclosure and to do so in a manner at least as protective as it holds its own Confidential Information of like kind but to use no less than a reasonable degree of care. Disclosures of the other party’s Confidential Information will be restricted (i) to those individuals who are participating in the performance of this Agreement or the applicable Statement of Work and need to know such Confidential Information for purposes of providing or receiving the Products or Services or otherwise in connection with this Agreement or the applicable Statement of Work, or (ii) to its business, legal and financial advisors, each on a confidential basis. Each party agrees not to use any Confidential Information of the other party for any purpose other than the business purposes contemplated by this Agreement and the applicable Statement of Work. Upon the written request of a party, the other party will either return or certify the destruction of the Confidential Information of the other party.
If a receiving party is required by law, rule or regulation, or requested in any judicial or administrative proceeding or by any governmental or regulatory authority, to disclose Confidential Information of the other party, the receiving party will give the disclosing party prompt notice of such request so that the disclosing party may seek an appropriate protective order or similar protective measure and will use reasonable efforts to obtain confidential treatment of the Confidential Information so disclosed.
Termination
Either party may terminate performance of a Service or a Statement of Work for cause if the other party fails to cure a material default in the time period specified herein. Any material default must be specifically identified in a written notice of termination. After written notice, the notified party will, subject to the provision of warranties herein, have thirty (30) days to remedy its performance except that it will only have ten (10) days to remedy any monetary default. Failure to remedy any material default within the applicable time period provided for herein will give cause for immediate termination, unless such default is incapable of being cured within the time period in which case the defaulting party will not be in breach (except for Customer’s payment obligations) if it used its reasonable efforts to cure the default. In the event of any termination of the Services or a Statement of Work, Customer will pay Company for all Services performed and expenses incurred up to and including the date of termination plus any termination fee if one is set forth in the applicable Statement of Work. In such event Customer will also pay Company for any out-of-pocket demobilization or other direct costs resulting from termination. Upon termination, all rights and obligations of the parties under this Agreement will automatically terminate except for any right of action occurring prior to termination, payment obligations and obligations that expressly or by implication are intended to survive termination (including, but not limited to, limitation of liability, indemnity, confidentiality, or licensing of Work Product and this survival provision).
These Terms and Conditions are subject to the Consumer Protection Act, 1981 and the Consumer Protection (Transaction Cancellation) Regulations 2010.
Arbitration
Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including, but not limited to, statutory, common law, intentional tort and equitable claims) arising from or relating to the Software, the Services, the interpretation or application of these Terms and Conditions or any Statement of Work or the breach, termination or validity thereof, the relationships which result from these Terms and Conditions or any Statement of Work (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto), or Company’s or any of its Affiliates’ advertising or marketing (collectively, a “Claim”) WILL BE RESOLVED, UPON THE ELECTION OF ANY OF COMPANY, CUSTOMER OR THE THIRD PARTIES INVOLVED, EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. If arbitration is chosen, it will be conducted pursuant to the Rules of the ICC. If arbitration is chosen by any party with respect to a Claim, neither Company or Customer will have the right to litigate that Claim in court or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by agreement of the parties involved. Further, Customer will not have the right to participate as a representative or member of any class of claimants pertaining to any Claim. The arbitration will take place exclusively in Tel-Aviv, Israel. Any court having jurisdiction may enter judgment on the award rendered by the arbitrator(s). Each party involved will bear its own cost of any legal representation, discovery or research required to complete arbitration. The existence or results of any arbitration will be treated as confidential. Notwithstanding anything to the contrary contained herein, all matters pertaining to the collection of amounts due to Company arising out of the Products or Services will be exclusively litigated in court rather than through arbitration.
Data Protection
This Section shall apply to the extent Company performs any operation or set of operations, including collecting, recording, storing, retaining, using, disclosing or otherwise accessing, (collectively, “Process,” “Processed,” or “Processing”) on any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household in connection with the Services (“Personal Data“), including without limitation any information that qualifies as “personal information” under the EU General Date Protection Regulation (“GDPR”). Company shall only Process Personal Data in accordance with the instructions of Customer as detailed in the Agreement or the applicable SOW or PO and applicable data privacy law, including, if applicable, the GDPR (“Privacy Laws“). Notwithstanding the foregoing, to the extent expressly set forth in the Agreement, Company (1) shall have the right to retain, use or disclose de-identified or aggregated data derived from Personal Data (“Company Data”), provided that Company Data shall not include any Personal Data, and (2) if Company Processes any “personal information” as such term is defined in the GDPR in connection with the Services, Company shall have the right to Process such “personal information” for any purpose permitted by the GDPR. Where applicable law requires Company to Process Personal Data under terms other than those of the Agreement, Company shall promptly notify Customer of such legal requirement before Processing, unless applicable law prohibits such disclosure. Where required by applicable law, Company shall also notify Customer if Company determines any of Customer’s instructions infringes applicable Privacy Laws.
The Parties agree that Customer is responsible for obtaining any consents required by applicable Privacy Laws, as well as providing and ensuring the accuracy of any notices required to disclose Personal Data to Company , Company’s Affiliates, or any Company subcontractor providing Services for use in accordance with the Agreement. Furthermore, Customer warrants that all Personal Data provided to Company has been obtained, Processed, and provided to Company in accordance with all applicable laws and ensured that there are legitimate grounds for Processing any and all Personal Data by Company , Company’s Affiliates, or any Company subcontractor providing Services for use in accordance with the Agreement.
Company shall promptly notify Customer of any request, complaint, claim, or other communication received by Company or a subcontractor regarding its Processing of Personal Data. Company shall cooperate with and provide any necessary assistance to Customer in responding to any such inquiries, in so far as possible and taking into account the nature of Company’s Processing and the Personal Data available to Company. Company shall be obliged to provide such assistance only in so far that the Customer cannot respond to such request on its own. Notwithstanding anything to the contrary in the Agreement, Customer is obliged to reimburse Company for out of pocket expenses in connection with such requests. Such expenses will be invoiced to Customer in accordance with the Agreement.
Customer acknowledges that Company is reliant on Customer for instruction as to the extent to which Company is entitled to use and Process Personal Data, and that Company is not liable for any claim brought by a data subject to the extent that such claim arises from the Customer’s instructions.
Upon request, Company shall provide reasonable cooperation and assistance to Customer with its obligations under applicable Privacy Laws, in so far as possible in connection with the Services, taking into account the nature of Company ‘s Processing and the Personal Data available to Company . Company shall be obliged to provide such assistance only in so far that Customer’s obligations cannot be met by Customer through other means. Notwithstanding anything to the contrary in the Agreement, Customer is obliged to reimburse Company for out of pocket expenses in connection with such assistance. Such expenses will be invoiced to Customer in accordance with the Agreement.
To the extent that Personal Data includes information about individuals who are located in the European Economic Area (“EEA“) and/or Switzerland, and Company stores or otherwise obtains access to such Personal Data outside of the EEA and/or Switzerland, Company agrees it has implemented appropriate measures to address the cross-border transfer of Personal Data.
Company shall implement and maintain an information security program that includes appropriate technical and procedural safeguards to protect Personal Data, taking into account the nature of Company’s Processing and the Personal Data available to Company. To the extent required by applicable Privacy Laws, upon request, Company shall make available to Customer information reasonably necessary to demonstrate compliance with this obligation.
The parties agree that Company may subcontract its obligations to subcontractors as necessary to perform the Services under the Agreement. Company shall remain responsible for subcontractors’ performance under the Agreement, and shall enter into an agreement with subcontractors that impose materially the same obligations as set forth in this Section. Company also agrees that any subcontractors who have access to Personal Data are bound to Process Personal Data in accordance with Company’s instructions and are subject to obligations to maintain confidentiality.
Notwithstanding any provisions in the Agreement to the contrary, Company shall promptly notify Customer in the event Company discovers or is notified of a known breach of security leading to unauthorized disclosure of or access to Personal Data as a result of its Processing of Personal Data (“Security Breach“). Company shall reasonably cooperate in the investigation of the Security Breach. Company made reasonable technical and organizational measures designed to secure the information from accidental loss and from unauthorized access, use, alteration or disclosure. However, Company cannot guarantee that unauthorized third parties will never be able to overcome those measures or use the information for improper purposes.
The parties agree that to the extent required by applicable Privacy Laws, and upon thirty (30) days written notice to Company, and no more than once per calendar year, Customer may request reasonable access to Company’s facilities, systems, and supporting documentation used to provide the Services, to the extent necessary to assess Company’s compliance with its obligations under this Section. Such assessments shall be subject to Company’s security and confidentiality policies, and shall be conducted in a manner that minimizes any disruption of Company’s performance of services and other normal operations. Such expenses will be invoiced to Customer in accordance with the Agreement.
Notwithstanding any other provision of the Agreement to the contrary, upon termination of the Agreement or otherwise at Customer’s written request, Company shall, at the choice of Customer, either return or delete Personal Data from its systems unless required by law, rule or regulation, or requested in any judicial or administrative proceeding or by any governmental or regulatory authority.
Customer shall reimburse Company and its managers, officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Reimbursed Party”) against any and all losses costs, or expenses of whatever kind, including professional fees and attorney’s fees, that are incurred by any Reimbursed Party for any investigation or any preparation for any investigation by any governmental or regulatory authority arising out of Customer’s violation of any Privacy Laws in connection with this Agreement.
Anti-Corruption, Export and Sanctions Compliance.
With respect to this Agreement, Customer represent, warrant, and covenant that it:
- has not and will not violate, or cause any party to be in violation of, any applicable anti-bribery or anti-corruption law, anti-kickback laws, anti-money laundering and anti-terrorist financing laws, sanctions, embargoes, export controls, import controls, anti-fraud laws, or any other applicable law, regulation, or order (collectively, “Applicable ABC Laws”);
- has not and will not use or apply the Software and/or Services in violation of Applicable ABC Laws;
- has not and will not with a corrupt, improper, or illegal intention directly or indirectly (through third parties) pay, provide, promise, offer, authorize, solicit, or accept any money, gift, hospitality, entertainment, favor, financial advantage, or other thing of value to or from any individual, organization, political party, or entity whether in the public or private sector in any country in order to obtain, retain, or direct regulatory approvals, licenses, permits, business, contracts, investments, sales, tax or duty assessments, import or export clearances, foreign exchange clearances, or other advantages;
- shall cause all of your employees, officers, directors, agents, contractors, vendors, and partners (collectively, “Relevant Parties”) to comply with all of the terms contained in this Section;
- are not, and will ensure that your Relevant Parties and customers are not, (a) nationals, residents, agents or representatives of Iran, Cuba, North Korea, Syria, the Crimea Region of Ukraine, or any other region subject to comprehensive European Union and U.S. sanctions; (b) on the List of Specially Designated Nationals & Blocked Persons, the Sectoral Sanctions Identifications (SSI) List, or Foreign Sanctions Evaders List maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, or any other applicable list of sanctioned, embargoed, blocked, criminal, or debarred persons maintained by any U.S. or non-U.S. government, the European Union, Interpol, the United Nations, the World Bank, or any other public international organization (each such list, a “Sanctions List”); (c) an entity that is 50% or more owned, individually or in the aggregate, directly or indirectly, by, is controlled by (including without limitation by virtue of such person being a director or owning voting shares or interests), or acts, directly or indirectly, for or on behalf of, any person or entity on a Sanctions List; or (d) otherwise the target of any sanctions, suspensions, embargoes or debarment by the U.S. government or any other government or public international organization;
- shall secure all necessary export/sanctions licenses or authorizations to the extent applicable and necessary; and
- shall reasonably cooperate with the Company to (a) ensure compliance with sanctions, embargoes, and other Applicable ABC Laws and/or (b) review and remediate actual or potential violations of sanctions or other Applicable ABC Laws, including, but not limited to, suspending or terminating the supply of products or services to customers or other persons that appear on a Sanctions List or are otherwise the target of sanctions and other similar restrictions.
- Shall not be engage in immoral activity which exploits the vulnerability and/or weakness of others.
A violation of the foregoing representations, warranties, or covenants will constitute a material breach of this Agreement, and, in the event of such a violation, the Company may, at its sole option, terminate this Agreement for cause and without further liability or obligation on the part of the Company. Any such breach will entitle the Company to seek to be indemnified by you and/or obtain injunctive and other emergency or equitable relief, in addition to any other remedies which may be available under applicable laws.
Miscellaneous
Company may assign or subcontract all or any portion of its rights or obligations with respect to the sale of Products or the performance of Services or assign the right to receive payments, without Customer’s consent. Customer may not assign these Terms and Conditions, or any of its rights or obligations herein without the prior written consent of Company. Subject to the restrictions in assignment contained herein, these Terms and Conditions will be binding on and inure to the benefit of the parties hereto and their successors and assigns. No provision of these Terms and Conditions or any Statement of Work will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties. The relationship between Company and Customer is that of independent contractors and not that of employer/employee, partnership or joint venture. If any term or condition of these Terms and Conditions or a Statement of Work is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or thereof or the whole of these Terms and Conditions or the applicable Statement of Work. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights.
From time to time, the Company may update these Terms and Conditions. If the Company materially update any portion of these Terms and Conditions, the Company will notify Customer by posting a revised these Terms and Conditions through the mobile app or a notice on Company’s website before the date the update becomes effective. Company will also post the updated these Terms and Conditions in its original location marked with the new date. Changes will not be retroactive. If Customer object to any changes, Customer should not access or use the Site.