[vc_row][vc_column][vc_column_text]PRESENSO TERMS AND CONDITIONS
These Terms and Conditions (this “Agreement”), is by and between Presenso Ltd., a company incorporated under the laws of Israel (“Presenso” or “us”, “our”, “we”) and the customer indicated (the “Company”) on the quotation to which this Agreement is attached (the “Quotation”).
BACKGROUND: Presenso provides cloud-based software for the monitoring and management of industrial systems (the “Solution”). This Agreement governs Company’s access and use of the Solution.
1. Solution. Subject to the terms and conditions hereof, Company may use the Solution on a non-exclusive basis for Company’s own internal commercial needs. Company shall not use the Solution to provide similar services to any third party. Presenso shall provide Company, pursuant to the terms and conditions hereof with cloud access to the Solution, and Company shall not be entitled to any source or executable code in respect thereof. Company shall comply with any use or access restrictions in the Quotation, such as limitations on the number of users allowed to access and use the Solution.
2. Restrictions. Except as set forth expressly herein, Company shall not, and shall not permit any third party, to (a) reverse engineer or attempt to find the underlying code of, the Solution; (b) modify the Solution, or insert any code or product, or manipulate the Solution or the data collected by the Solution in any way; (c) circumvent any security or access control measures of the Solution or (d) distribute, sublicense or transfer the Solution to third parties. To the extent any of the restrictions set forth in this Section are not enforceable under applicable law, Company shall inform Presenso in writing in each instance prior to engaging in the activities set forth above.
3. System Data. The Solution collects certain data regarding Company’s software and systems (“System Data”). System Data will be stored on Presenso’s servers. Company represents and warrants that it has the right to monitor the systems which use the Solution and have such data transferred to Presenso in order to receive services through the Solution. Presenso will employ industry-standard security measures to ensure that System Data is not disclosed to third parties. All such System Data shall be deemed the Confidential Information (as defined herein) of Company subject to the non-disclosure and non-use provisions of this Agreement, provided however that Presenso may use System Data in order to improve its technology and algorithms, and to create marketing data that does not identify Company. Presenso may use affiliates or independent contractors to store or process such data as long as such affiliates and independent contractors are subject to confidentiality obligations substantially similar to those set forth herein.
4. Intellectual Property. As between the parties, Presenso shall have all right, title and interest in the Solution, and all software that provides the Solution. If Company provides Presenso with any feedback regarding the Solution, Presenso and its affiliates may use all such feedback without restriction and shall not be subject to any non-disclosure or non-use obligations in respect of such feedback. Nothing in this Agreement shall be interpreted to provide Company any rights in the Solution except the limited right to receive service through the Solution subject to the terms and conditions hereof.
5. Payment. Company shall make payment to Presenso pursuant to the terms and conditions of the Quotation. Unless otherwise set forth in the Quotation, Company must add applicable taxes (including VAT) and other government charges to such amounts as required by law. All amounts payable hereunder are nonrefundable and exclusive of all applicable taxes and government charges, and Company shall make payment to Presenso without deduction for and free and clear of any such amounts. Amounts are due and payable within 30 days of the end of the applicable calendar month. Late payments shall bear interest at the rate of 18% per annum.
6. Confidentiality. Either party (the “Disclosing Party”) may disclose to the other party (the “Receiving Party”) certain confidential information regarding the technology and business of the Disclosing Party (“Confidential Information”). The Receiving Party agrees to keep confidential and not disclose or use any Confidential Information except for purposes of providing or receiving the Solution, exercising its rights hereunder, or in furtherance of the relationship of the parties hereunder. Confidential Information shall not include information that the Receiving Party can show (a) was already lawfully known to or independently developed by the Receiving Party without access to or use of Confidential Information, as shown by contemporary documentary evidence, (b) was received from any third party without restrictions, (c) is publicly and generally available, free of confidentiality restrictions; or (d) is required to be disclosed by law, provided that the Receiving Party provides the Disclosing Party with prompt notice of such requirement and cooperates in order to minimize such requirement. The Receiving Party shall restrict disclosure of Confidential Information of the Disclosing Party to those of its employees and independent contractors with a reasonable need to know such information for the purposes of this Agreement and which are bound by written non-disclosure and non-use obligations no less restrictive than those set out herein. The terms and existence of this Agreement shall be deemed the Confidential Information of Presenso. Company will not disclose any information regarding the results of any benchmarking, testing or evaluation of the Solution to any third party without the prior written consent of Presenso.
7. Analytics. The Solution shall provide Company with information, reports and analytics in respect of the System Data, including graphical charts, presentations and dashboards (all of the foregoing, the “Analytics”). Company may copy and use the Analytics for any internal purpose, and such Analytics shall be deemed the confidential information of Company subject to all non-disclosure and non-use obligations set forth in this Agreement. Presenso makes no warranty that the Analytics provided shall be useful to Company’s business. Company is solely responsible for any action Company may take based on the Analytics, and in making any decision Company should take into account the possibility that information provided by the Analytics may not correctly reflect current or future trends.
8. Service Levels, Support. Presenso does not guarantee the Solution will be operable at all times or during any down time (a) caused by outages to any public Internet backbones, networks or servers, (b) caused by any failures of Company’s software, equipment, systems or local access services, (c) for previously scheduled maintenance or (d) relating to events beyond Presenso’s control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Company, Presenso or its servers are located. Company may contact Presenso with regard to support for the Solution.
9. Warranties; Disclaimer. Presenso warrants that the Solution shall perform materially in accordance with applicable specifications and that, to the best of its knowledge, the use of the Solution by Company in compliance with this Agreement shall not infringe the intellectual property rights of any third party. Subject to the foregoing, Company accepts the Solution and Analytics “as is”. Presenso makes no warranties or representations regarding the Solution and Analytics and disclaims all implied and statutory warranties, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose or non-infringement. No other document or oral statements made by Presenso or its representatives shall be deemed to provide any warranty or representation unless expressly set forth herein. Any actions taken by Company based on the Analytics are at Company’s sole risk. Company understands that Presenso is not a data storage service. Company must make backups of any data provided to Presenso, and Presenso shall have no liability for any lost or corrupted data.
11.1 Presenso Indemnification. Presenso shall defend, indemnify and hold harmless Company (and its affiliates, officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys’ legal fees) which Company may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party that the Solution infringes the intellectual property rights of a third party. Notwithstanding the foregoing, Presenso shall have no responsibility or liability for any claim to the extent resulting from or arising out of the System Data or the use of the Solution not in compliance with this Agreement or applicable law. If the Solution shall be the subject of an infringement claim, or Presenso reasonably believes that the Solution shall be the subject of an infringement claim, Presenso may terminate this Agreement with written notice.
11.2 Company Indemnification. Company shall defend and indemnify Presenso (and its affiliates, officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and attorneys’ fees) which Presenso may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party arising from the use of the Solution or provision to Presenso of any data or information not in compliance with applicable law.
11.3 Procedure. The obligations of either party to provide indemnification under this Agreement will be contingent upon the indemnified party (i) providing the indemnifying party with prompt written notice of any claim for which indemnification is sought, (ii) cooperating fully with the indemnifying party (at the indemnifying party’s expense), and (iii) allowing the indemnifying party to control the defense and settlement of such claim, provided that no settlement may be entered into without the consent of the indemnified party if such settlement would require any action on the part of the indemnified party other than to cease using any allegedly infringing or illegal content or services. Subject to the foregoing, an indemnified party will at all times have the option to participate in any matter or litigation through counsel of its own selection at its own expense.
11. LIMITATION OF LIABILITY. IN NO EVENT SHALL PRESENSO (OR ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR CONSULTANTS) HAVE ANY LIABILITY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATING TO THE SERVICES OR THE ARRANGEMENTS CONTEMPLATED HEREIN, INCLUDING IN RESPECT OF LOST PROFITS, LOST BUSINESS OPPORTUNITIES OR LOST DATA. IN NO EVENT SHALL THE LIABILITY OF PRESENSO (OR ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR CONSULTANTS) FOR THE PROVISION OF THE SERVICES OR UNDER ANY PROVISION OF THIS AGREEMENT EXCEED THE AMOUNT OF PAYMENT RECEIVED BY PRESENSO FROM COMPANY IN THE 12 MONTHS PRECEDING THE APPLICABLE CLAIM.
12. Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and shall continue for the term indicated in the Quotation. Presenso may terminate this Agreement with written notice if it has reason to believe that Company is in breach of any provision of this Agreement. Upon any termination or expiration of this Agreement, Presenso will cease providing all services pursuant to the Solution. Sections 3-14 of this Agreement shall survive any termination thereof.
13. Publicity. Presenso may disclose that Company is using the Solution, including by displaying Company’s name and logo in Presenso’s website and other marketing materials.
14. Miscellaneous. This Agreement together with its exhibits and the Quotation and any non-disclosure agreements between the parties represents the entire agreement between the parties regarding the subject matter hereof and supersedes any and all other agreements between the parties, whether written or oral, regarding the subject matter hereof. In the event of any conflict between the terms of this Agreement and either the Quotation or any non-disclosure agreement, the terms of this Agreement shall govern unless set forth expressly otherwise in the Quotation or such non-disclosure agreement. This Agreement may not be modified or amended except in a writing executed by both parties. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A waiver of any default hereunder or of any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. Presenso may provide Company with notices required hereunder by contacting Company at any email address Company provided, including in its registration information. Presenso may assign its rights or obligations pursuant to this Agreement. Company agrees not to assign any rights under this Agreement; any attempted assignment shall be null and void. If any part of this Agreement shall be invalid or unenforceable, such part shall be interpreted to give the maximum force possible to such terms as possible under applicable law, and such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of this Agreement which shall remain in full force and effect. This Agreement shall be governed by the laws of the State of Israel, and the competent courts in the State of Israel shall have exclusive jurisdiction to hear any disputes arising hereunder. Notwithstanding the foregoing, either party may seek an injunction or other equitable relief in any court of competent jurisdiction.[/vc_column_text][/vc_column][/vc_row]