THESE GENERAL TERMS (“AGREEMENT”) CONSTITUTE BINDING TERMS BETWEEN X-TRODES LTD (“COMPANY”) AND THE PARTY EXECUTING THE CORRESPONDING ORDER FORM (AS DEFINED BELOW) (“USER”).
THIS AGREEMENT GOVERNS USER’S USE OF COMPANY’S PROPRIETARY: (A) AMPLIFIER AND ELECTRODES/SENSORS (“HARDWARE”); (B) APPLICATION PROGRAMMING INTERFACE (API) INSTALLED ON CUSTOMER’S SERVER (“SOFTWARE”); AND (C) CLOUD BASED PLATFORM, (“PLATFORM”), (THE HARDWARE, SOFTWARE AND PLATFORM, TOGETHER WITH ANY ASSOCIATED DOCUMENTATION PROVIDED BY COMPANY WITH RESPECT TO THE FOREGOING, COLLECTIVELY, THE “SYSTEM”).
BY CLICKING “I AGREE”, “ACCEPT” OR OTHER SIMILAR BUTTON OR BY INSTALLING, ACCESSING AND/OR USING THE SYSTEM, USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT IT HAS UNDERSTOOD AND AGREES TO COMPLY WITH, AND BE LEGALLY BOUND BY, THE TERMS AND CONDITIONS OF THIS AGREEMENT. USER SHOULD NOT SELECT “I AGREE” OR INSTALL OR USE THE SYSTEM (OR PARTS THEREOF) UNTIL IT HAS CAREFULLY READ, UNDERSTOOD AND AGREED TO THE TERMS HEREUNDER. USER HEREBY WAIVES ANY RIGHTS OR REQUIREMENTS UNDER ANY LAWS OR REGULATIONS IN ANY JURISDICTION, WHICH REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW.
Subject to the terms and conditions of this Agreement, during the Term (as defined below), Company hereby grants User, a limited, non-exclusive, non-sublicensable, non-transferable license to use and access the System, solely for internal data research purposes, or as otherwise agreed between the Parties in writing, in the quotation signed between the Parties (“Order Form”). The terms of the Order Form shall prevail over this Agreement to the extent of any inconsistencies. User may only use the Software, Hardware and Platform in accordance with the documentation provided by Company (“Documentation“), the Order Form and applicable laws and regulations. Risk of loss of, and damage to, the Hardware, shall pass to User upon delivery. Company shall retain title to the System. Notwithstanding the foregoing, if the Order Form states expressly that User is purchasing the Hardware, title will pass to User when User has paid the Fees (as set forth in the Order Form) in full.
In order to use the System, User may have to create an account (“Account”). When creating an Account, User must provide accurate and complete information. User shall remain solely responsible and liable for the activity that occurs in the Account and ensure that the Account password and login information remain secure at all times. Any breach of security or unauthorized use of its Account must be notified to Company immediately.
As between the Parties, User is, and shall be, the exclusive owner of all User Content and Data Results, where: (a) “User Content” means any content that User submits, uploads or transmits through the System, or otherwise provides or makes available to Company via the System; and (b) “Data Results” means any results or outputs generated by the System using the User Content. User shall ensure that no User Content contains or links to any Personally Identifiable Information (as defined below) and that User does not transfer or grant Company access to any Personally Identifiable Information though its use of the System. User represents, warrants and covenants that: (a) the User Content (and the provision of such to Company) does not and will not violate and/or misappropriate any law or third party right (including, without limitation, privacy or intellectual property rights); and (b) User has obtained and will maintain all required consents and licenses and permissions necessary to provide, make available or otherwise expose the User Content to Company, its affiliates, and the hosting provider and to obtain the Data Results. “Personally Identifiable Information” means any personal information that can be used to identify an individual, as defined (or defined in a similar term) under the relevant privacy law.
Restrictions. User must not, and shall not allow any third party to directly or indirectly: (a) circumvent, disable or otherwise interfere with features that enforce limitations on use of the System; (b) allow any unauthorized third party to use the System, its User Account, and/or the Data Results; (c) sell, rent, lease, assign, transfer, pledge, rent, license, sub-license or share its rights under this Agreement with any third party (including but not limited to offering the System as part of timesharing, outsourcing or service bureau environment); (d) copy, modify, reverse engineer, decompile, disassemble, decrypt, extract, make derivative works of, attempt to derive, make available or distribute, publicly perform, or display any part of the System or the Data Results (including by incorporation into its products), or otherwise attempt to discover the source code of, the System or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms); (e) use the System and/or the Data Results to develop any service or product that is the same as (or substantially similar to) or that is intended to compete with the System; (f) interfere or attempt to interfere with the integrity or proper working of the System; (g) disclose the results of any testing or benchmarking of the System to any third party; (h) remove or alter any trademarks or other proprietary right notices displayed on or in the System (i) circumvent, disable or otherwise interfere with security-related features of the System or features that enforce use limitations (j) store or transmit any malicious code (i.e., software viruses, Trojan horses, worms, robots, malware, spyware 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 other unlawful material in connection with the System (k) use any “open source” or “copyleft software” in a manner that would require Company to disclose the source code of any element of the System to any third party (l) use or access the System and/or Data Results for commercial purposes (other than with Company’s prior written approval); (m) use or access the System and/or Data Results in order to validate methods, procedures, software and/or commercial or non-commercial technologies relating to sleep diagnosis and monitoring, sleep biomarkers, monitoring neonatal, muscle rehabilitation, arrhythmia or stress test; (n) use or access the System in order to perform a comparison with any other systems or products (including, without limitation, in the context of regulatory processes); (o) allow, commence or be involved in, a legal action challenging the use of the System or any of Company’s proprietary components, with regard to patents and/or other intellectual property rights resulting from its use of the System and/or the Data Results; and/or (p)export, make available or use the System in breach of applicable laws and/or this Agreement. Company may immediately terminate its access to the System and/or this Agreement if it violates (or if Company has reason to believe that it has violated) the restrictions set out in this Section.
- The intellectual property rights and all other rights, title and interest of any nature in and to the System and the Analytics Information, and any algorithms, methods and techniques created based on the System and/or the Analytics Information, as well as any related content, documentation and services provided or made available by Company hereunder, including all modifications, upgrades, customizations and derivative works (whether or not permitted under this Agreement) thereof, and any feedback, suggestions, or ideas for or about the System, are and shall remain the exclusive property of Company and its licensors. Except as expressly set forth herein, nothing in this Agreement shall be construed as transferring any rights, title or interests to User or any third party. Company and its licensors reserve any and all rights not expressly granted in this Agreement.
- Any Data Results shall be owned by User. Notwithstanding the foregoing, intellectual property rights in and to the System derived as a result of or in conjunction with the Data Results shall be the sole property of Company.
- Company may use the User Content and Data Results, that have been anonymized, in order to allow Company to improve its algorithms and learning sets and/or for statistical purposes. Any anonymous information, which is derived from the use of the System, User Content and/or Data Results (i.e., metadata, aggregated and/or analytics information and/or intelligence relating to the operation, support, and/or use of the System) which is not personally identifiable information (“Analytics Information”) may be used by Company for providing the System and its related services, for development, improving the System and/or for statistical purposes. Such Analytics Information is Company’s exclusive property.
User agrees to pay Company the System-related fees and other charges as stated in the Order Form (the “Fees“). Certain System features and functionalities may be subject to additional Fees, pricing for which may be specified within the System interface or the relevant Order Unless otherwise stated in the Order Form, all Fees are quoted exclusive of applicable taxes, which shall be paid by User.
If Company believes that User or anyone on its behalf is using the System in a manner that may cause harm to Company or any third party then Company may, without derogating from Company’s right to terminate this Agreement for any breach hereof, suspend User’s access to its Account and use of the System until such time as Company believes the threat of harm, or actual harm, has passed.
- Term and Termination: Unless agreed otherwise in an Order Form, this Agreement is effective until terminated by either User or Company (the “Term”). Company reserves the right, at any time, to: (i) discontinue or modify any aspect of the System; and/or (ii) terminate this Agreement and User’s use of the System with or without cause, and shall not be liable to you or any third party for any of the foregoing. If User objects to any term or condition of this Agreement or any subsequent modifications thereto, or becomes dissatisfied with the System in any way, its only recourse is to immediately discontinue use of the System.
- Effect of Termination: Upon termination in accordance with the provisions of this Agreement, User shall (i) immediately discontinue all access and use of the System and shall promptly, but in any event within three (3) days, permanently delete or destroy all copies of the System in its possession or control, including but not limited to returning all Hardware to Company unless User has fully purchased the Hardware; and (ii) pay any outstanding amounts owed to Company under an Order (if any). For the avoidance of doubt, User shall not be entitled to any refunds or reimbursements of any amount(s) paid by User in connection with this Agreement, regardless of the cause of termination.
- Survival: This Section 8.3 and Sections 4 (Restrictions), 5 (Title), 6 (Payments, to the extent any amounts due hereunder remain payable), 2 (Effect of Termination), 9 (Warranty Disclaimer), 10 (Limitation of Liability), 11 (Confidential Information; Privacy), and 12 (Indemnification), and 13 (Independent Contractors) through 16 (General) shall survive termination of this Agreement.
- EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SYSTEM AND THE DATA RESULTS ARE PROVIDED ON AN “AS IS” BASIS, AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. COMPANY WILL NOT BE LIABLE OR RESPONSIBLE FOR: (A) ANY FAILURE TO DETECT CONTENT; (B) ANY TECHNICAL PROBLEMS OF THE INTERNET (INCLUDING WITHOUT LIMITATION SLOW INTERNET CONNECTIONS OR OUTAGES); AND/OR (C) ANY ISSUE THAT IS ATTRIBUTABLE TO USER’S SOFTWARE OR ITS INTERNET OR DATA SERVICE PROVIDER.
- The System is not intended to, and will not, operate as a data storage or archiving product or service, and User agrees not to rely on the System for the storage of any User Content whatsoever. User is solely responsible and liable for the maintenance and backup of all User Content.
- Company provides a limited warranty and hereby warrants that, subject to full payment of the Fees, the System shall be free from material defects in materials and workmanship for the duration of one year from delivery by or on behalf of Company (the “Warranty Period“). Company’s sole obligation under this warranty is to replace or, at Company’s option, to repair, free of charge, materially defective parts during the Warranty Period. For sake of clarity, this warranty does not include Hardware, batteries or SD cards, and will not be granted in the event that the System or any component thereof is: (i) subject to misuse, negligence, accident or improper installation, use or maintenance by anyone other than Company; (ii) modified, repaired or altered by anyone other than Company; (iii) used in a manner for which it was not intended, or not in compliance with its specifications and/or Documentation; (iv) damaged by any factor beyond Company’s reasonable control; or (v) if the System was used in conjunction with anything other than the Hardware and Software.
- EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY LOSS OF INCOME, PROFITS, GOODWILL OR REPUTATION OR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT ARISE UNDER THIS AGREEMENT OR THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SYSTEM, AND/OR THE DATA RESULTS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW COMPANY’S TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES AND LOSSES UNDER THIS AGREEMENT, OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SYSTEM, AND/OR THE DATA RESULTS, SHALL NOT, UNDER ANY CIRCUMSTANCE, EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY USER TO COMPANY UNDER THIS AGREEMENT WITHIN THE TWELVE (12) MONTHS PRECEDING THE DATE OF BRINGING A CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
- 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 (“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 disclosure to a third party. 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 is and shall remain the sole and exclusive property of the disclosing Party. The terms of this Agreement are Confidential Information of Company.
- Information of the disclosing Party shall not be considered as Confidential Information if it: (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, use of, or reliance on, the disclosing Party’s Confidential Information. Neither Party shall use or disclose the Confidential Information of the other Party except for performance of its obligations under this Agreement (“Permitted Use”).
- The receiving Party shall only permit access to the disclosing Party’s Confidential Information to its respective employees, consultants, affiliates, agents and subcontractors having a need to know such information in connection with the Permitted Use, who either (i) have signed a non-disclosure agreement with the receiving Party containing terms at least as restrictive as those contained herein or (ii) are otherwise bound by a duty of confidentiality to the receiving Party at least as restrictive as the terms set forth herein; in any event, the receiving Party shall remain liable for any acts or omissions of such persons. The receiving Party will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that it promptly notifies the disclosing Party in writing of such required disclosure to enable disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure and cooperates reasonably with disclosing party in connection therewith. All right, title and interest in and to Confidential Information is and shall remain the sole and exclusive property of the disclosing Party.
- For the avoidance of doubt, User shall not provide Company with any Personally Identifiable Information.
User hereby agrees to defend, indemnify and hold Company harmless against any damages awarded against Company by a court of competent jurisdiction, or paid in settlement, in connection with a third-party claim, suit or proceeding arising from or related to: (i) breach of any of User’s obligations, representations or warranties hereunder; or (ii) User’s gross negligence or willful misconduct.
The parties are independent contractors. Nothing in this Agreement shall create a partnership, joint venture, agency, or employment relationship between the parties. Neither Party may make, or undertake, any commitments or obligations on behalf of the other.
This Agreement and any rights or obligations hereunder: (i) may not be transferred or assigned by User without the prior written consent of Company which may not be unreasonably withhold; but (ii) may be transferred or assigned by Company. Subject to the foregoing conditions, this Agreement shall be binding upon and inure to the benefit of each Party and its respective assigns. Any prohibited assignment shall be null and void.
This Agreement shall be governed by the laws of the State of Israel, without regard to its conflict of laws’ provisions. All disputes arising out of this Agreement shall be subject to, and each Party hereby consents to, the sole and exclusive jurisdiction of the competent courts located in Tel Aviv-Yaffo, Israel. Notwithstanding the foregoing, each Party may seek equitable relief in any court of competent jurisdiction in order to protect its proprietary rights.
The headings used in this Agreement are for convenience only and shall in no case be considered in construing this Agreement. Any capitalized but undefined term in any duly executed Order Form shall have the meaning given to it in this Agreement. In the case of an inconsistency or contradiction between this Agreement and any Order Form, the Order Form shall prevail. Without derogating from the applicable Order Form, this Agreement comprises the entire agreement between the parties regarding the subject matter hereof and supersedes and merges all prior understandings, oral and written, between the Parties relating to the subject matter of this Agreement. Company reserves the right to modify this Agreement at any time by sending User a notification and/or publishing the revised Agreement on the System or the Company’s website. Such change will be effective ten (10) days following the foregoing notification thereof, and User’s continued use of the System thereafter means that it accepts those changes. If any part of this Agreement is held by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such provision shall then be enforceable and enforced. No failure or delay in exercising any right hereunder by either Party shall operate as a waiver thereof, nor will any partial exercise of any right hereunder preclude further exercise.
USER AGREES THAT ANY CAUSE OF ACTION THAT IT MAY HAVE ARISING OUT OF OR RELATED TO THE SYSTEM MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.