KAHOLO LTD. GENERAL TERMS & CONDITIONS
These General Terms & Conditions (“Terms”) govern the provision by Kaholo Ltd. (the “Company”), of its SAAS and on-premises software products and services to its customers, and are agreed to by the customer (the “Customer” or “You”), and together with the Company, the “Parties”) and the Company.
PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING THE PRODUCT (AS DEFINED BELOW). BY CLICKING THE “I ACCEPT” BUTTON OR USING THE PRODUCT YOU ARE INDICATING THAT YOU HAVE READ THESE TERMS, UNDERSTOOD THEM, AND THAT YOU AGREE TO BE LEGALLY BOUND BY THEM. IF YOU DO NOT AGREE TO ANY OF THESE TERMS OR ARE NOT AUTHORIZED TO BIND THE ENTITY ON BEHALF OF WHICH YOU ARE ACTING, DO NOT ACCESS OR USE THE PRODUCT. WITHOUT LIMITING THE FOREGOING, ACCESSING OR USING ANY PORTION OF THE PRODUCT INDICATES THAT YOU ACCEPT THESE TERMS AND, TO THE EXTENT YOU ENTER INTO THESE TERMS ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU ARE AUTHORIZED TO BIND SUCH LEGAL ENTITY.
Company may change these Terms from time to time, and such change will become effective upon the date on which it is posted on Company’s website or via the Products or Services (as defined below). You are responsible for checking Company’s website regularly for such changes. By continuing to access or use the Products or Services You agree to be bound by the revised Terms.
1.1. “Agreement” means collectively these Terms, support services terms (if applicable to Customer), and any additional terms in the Company’s website at the time of purchase or installation of the Product, or otherwise communicated to Customer by the Company.
1.2. “Authorized User” means any individual authorized by the Customer to access, install and use the Product, where applicable, including Customer’s employees, consultants, etc.
1.3. “Confidential Information” means the Product, the Services and any non-public information of Company provided or made available to Customer.
1.4. “Documentation” means Company’s documentation relating to the operation and use of the Product, including technical program documentation, user manuals, operating instructions and release notes, as made generally available or provided to Customer, and as updated from time to time by Company.
1.5. “Product” means the proprietary software platform in object code form which the Company makes available to Customers on: www.kaholo.io, in the format of a software as a service or as downloadable software for installation on the Customer’s system, as applicable.
1.6. “Purchase Order” means a written instrument for the purchase of license to use the Products or Services from Company, executed by both Customer and Company’s authorized representative. Any Purchase Order shall incorporate by reference this Agreement.
1.7. “Services” means any services provided by the Company to its Customers in connection with the Product pursuant to a Purchase Order, which may be subject to additional payments, as specified in the Company’s website.
2.1. Evaluation License. For any Product designated by or on behalf of the Company as provided under an evaluation license, the following terms apply: Subject to Customer’s compliance with the terms and conditions of this Agreement, the Company grants to the Customer a revocable, non-exclusive, non-transferable and non-sublicenseable right, only during the evaluation period (as shall be determined by the Company at its sole discretion), commencing upon Customer’s download or receipt of the Product, to use the Product in accordance with the Documentation provided by the Company, for the sole purpose of the Customer’s internal evaluation of the Product in order to determine whether the Customer wishes to purchase a commercial license to the Product.
2.2. Enterprise License. For any Product designated by or on behalf of the Company as provided under an enterprise license, the following terms apply: Subject to full compliance of the Customer with the terms of the Agreement, including payment of all associated fees, the Company grants Customer a limited, non-exclusive, non-transferable, non-sub-licensable, right to access and use (if the Customer has purchased the Product as a SaaS solution) or to download, install and use one (1) copy of the Product (if Customer has purchased the Product as an on-prem solution) the Product and Services, solely for Customer’s internal business purposes in accordance with the Documentation. If the Product is licensed for use on a limited number of servers and/or users, the Customer may use the Product only on up to number of servers and/or users for which the Customer has paid fees. If the Product is licensed for a limited period, the Customer may use the Product only during the applicable period (the “License”).
3. SUPPORT SERVICES.
3.1. As part of the Services, the Company may provide support services to its Customers, which are subject to additional fees, as specified on the Company’s website from time to time, and in accordance with the terms and fees specified therein and in an applicable Purchase Order.
3.2. During the term of the License, Costumer is required to download updates to the Product, where applicable, when and as the Company publishes them on its website.
3.3. Customer acknowledges that failure to install any updates to the Product when due may result in loss of data, information or materials, in the Product not operating properly, in the occurrence of bugs and malfunctions and other errors and risks, and confirms that the Company shall not be liable in any way for damages or costs arising from failure to install any updates to the Product when due.
3.4. This Agreement does not obligate the Company to provide any updates or upgrades of any kind to the Product. Notwithstanding the foregoing, any updates that You may receive become part of the Product and the Terms apply to them (unless this Agreement is superseded by a succeeding agreement accompanying such update or modified version of the Product).
4. FEES & TAXES.
4.1. Customer’s use of the Product and Services is subject to the full and timely payment of any and all associated fees identified on the applicable Purchase Order or, in the absence thereof, on Company’s website, as applicable to the Product the Service selected by Customer (the “Fees”). Customer shall be responsible for all taxes associated with this Agreement.
4.2. If Customer’s use of the Products or Services exceeds the capacity set forth on the Purchase Order or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such excess usage and Customer agrees to immediately pay the additional fees in the manner provided herein, and at the price set forth in the Purchase Order. All payments shall be made in U.S. dollars unless otherwise agreed by Company in writing. All payments are final and non-refundable.
4.3. Full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice payable in full. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees, and may result in suspension or termination of the Agreement.
4.4. At reasonable times and upon reasonable prior notice, Company may audit the business records of Customer to ensure compliance with the terms of this Agreement. Company will bear all costs of audits unless an audit shows non-compliance by Customer, in which case Customer will bear all reasonable expenses incurred by Company to perform the audit and shall immediately rectify such non-compliance to the full satisfaction of the Company, at its discretion.
5. CUSTOMER’S OBLIGATIONS.
5.1. Customer acknowledges that use, download and installation, as applicable, of the Product and Services are dependent upon internet connectivity, and agrees that it will be fully and solely responsible for procuring and maintaining its network accounts and connections to the internet. The Company does not provide internet connectivity services and shall not be liable for any and all problems, conditions, delays, delivery failures as well as all other losses or damages arising from or relating to Customer’s network connections and accounts.
5.2. Customer shall be fully and solely responsible for any acts and omissions by its Authorized Users in connection with the Agreement and the use and download and installation, as applicable, of the Product and Services.
5.3. Customer is solely responsible for the security and proper creation, use and termination of all Authorized Users’ user names, passwords and other security devices used in connection with the Product and the Services and shall take all necessary steps to ensure that Authorized Users’ user names and passwords are kept confidential and secure, that access authorizations are not shared between Authorized Users or made available to unauthorized persons. The Company reserves the right to require Customer, at the Company’s sole discretion, to change any access authorization, passwords or other security measures used by Customer in connection with the Product and Services, and Customer shall promptly comply with any such requirement.
6. CUSTOMER’S DATA.
6.1. The Customer will only upload, share, use, or otherwise make available to third parties and/or to the Company, on or through the Product or Services, via the Product or otherwise, information, data, code, software components or any other content (collectively, “Customer Content”) that Customer has the right and authority to share and use in connection with the Product or Services, and for which it has any and all necessary authorizations to disclose to third parties and/or to the Company, and grant to the Company the licenses and rights as set forth herein. By uploading, sharing or otherwise providing Customer Content to the Company, via the Product or otherwise, the Customer hereby grants to the Company a worldwide, limited, royalty-free, non-exclusive, sub-licensable license to use, reproduce, modify, adapt, publicly display, and transmit the Customer Content, solely for the purpose of performing its obligations under the Agreement. In addition, where applicable, the Company may collect aggregated or de-identified Customer log files or any workflow and automation pipelines created by Customer when using the Product, for the purpose of operating, providing, maintaining, protecting, managing, customizing, analyzing and improving Company’s Product and Services. Any and all such log files are owned exclusively by the Company.
6.2. Customer shall indemnify and hold the Company harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees) arising out of or in connection with: (i) any breach by Customer or its Authorized Users of any term of the Agreement; (ii) any third Party’s claim that the Customer Content infringes such third party’s rights, including intellectual property rights.
6.3. The Company may, but is not obligated to, review Customer Content disclosed to the Company, via the Product or otherwise and generally monitor all use of the Product and Services, and to remove or choose not to make available on or through the Services any Customer Content in its sole discretion. The Company may remove Customer Content that is illegal or infringes on the rights of a third party.
7. RESTRICTIONS. Except for the rights granted in Section 2 herein, no other rights in or to the Product or Services, express or implied, are granted to the Customer. Without limiting the foregoing, Customer will not, and will not assist others to: (a) transfer any of its rights to use, loan or resell the Product or the Services to a third party (including Customer’s affiliates); (b) sell, rent, sub-license, lease or share the Product or the Services; (c) permit any person who is not an Authorized User to use, install or access the Product or the Service; (d) copy, extract, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Product or the Service, in any form or media or by any means; or attempt to compile, disassemble, reverse engineer or otherwise reduce to human-readable form all or any part of the Product; (e) access all or any part of the Product or Service in order to build a product or service which competes with any services or products of the Company; (f) use the Product or Services other than for the permitted purpose specified in the Agreement or in violation of the Documentation; (g) otherwise attempt, directly or indirectly, to disrupt the Product or Services, servers or networks connected to them, deny service to, hack, crack, or otherwise interfere with the Product or Services and their underlying software, or other technology, code, algorithm or other proprietary information of the Company in any manner, or disobey any requirements, procedures, policies, or regulations of networks connected to the Product and Services and/or interfere with the automatic process of downloading and/or installing any mandatory updates or upgrades to the Product or Services; (h) attempt to circumvent or overcome any technological protection measures intended to restrict access or download any portion of the Product or Services, technology or any software thereto; (i) create a database by systematically downloading and storing all or any content from the Product or Services; (j) use the Product or Services for any illegal, immoral or unauthorized purpose, to encourage criminal behavior or conduct that would constitute a criminal offense under any law, or in a manner that could give rise to civil liability or other lawsuit, including but not limited to, using the Product or Services to download content in violation of copyright, for distribution or development of any malware, take any action relating to piracy on the web, etc.; (i) use any automated means or interface to access download or install the Product or Services or extract other customers’ information; (k) transmit or otherwise make available in connection with the Product or Services any computer code, file, or program including any virus, worm, Trojan Horse, spyware, or any other, that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; (l) probe, scan, or test the vulnerability of the Products or Services; (m) use the Product or Services to mine bitcoin or other digital currencies; and (n) use the Product or Services in a manner that violates any applicable law, ordinance, regulation or administrative order, or infringes any third party’s rights. In case of any actual or suspected violation of the restrictions set forth under this Section 7, Company may immediately suspend or terminate Customer’s access to the Products or Services without obligation towards Customer, notwithstanding anything else to the contrary.
8. OWNERSHIP & CONFIDENTIALITY.
8.1. The Company retains sole and exclusive ownership of all rights, interests and title in the Product and the Services, their modifications, enhancements, upgrades, updates and improvements, their code and any underlying intellectual property rights and know-how associated therewith or with any part thereto, including without limitation any and all trademarks, trade names, copyrights, patents and other intellectual property rights used or embodied in or in connection therewith, whether patentable or not, and whether registrable or not. Nothing in the Agreement shall restrict the Company in any manner from using, developing, marketing, licensing, or otherwise disposing of the Product and Services or concepts, software or code embodied therein anywhere in the world; nor shall anything herein be construed to grant to Customer any rights in or to any present or future products of the Company, whether or not similar to the Product, except for the license or as otherwise expressly provided herein.
8.2. Confidential Information. Customer shall protect all Confidential Information from unauthorized dissemination and use with the same degree of care that it uses to protect its own information of similar nature. Customer shall not use any Confidential Information for purposes other than those expressly licensed under this Agreement. Customer shall not disclose the Confidential Information to third parties without the prior written consent of the Company. Customer acknowledges that Confidential Information is unique and valuable to the Company and that the unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to the Company, for which monetary damages alone would not be an adequate remedy. Accordingly, Customer agrees that in the event of a breach or threatened breach of this Section, the Company will be entitled to seek specific performance and injunctive or other equitable relief as a remedy for such breach or anticipated breach in any court of competent jurisdiction, without the necessity of posting a bond. Any such relief shall be in addition to, and not in lieu of any other remedies available to the Company, including but not limited to monetary damages..
9. TERM & TERMINATION.
9.1. The term of the Agreement will commence on the date in which Customer accepts these Terms and shall continue until the earlier of: (i) expiration of the subscription which may be subject to automatic renewal, in accordance with the Company’s policies; or (ii) termination of the Agreement in accordance with the provisions herein.
9.2. The Company may terminate the Agreement, Customer’s access to the Product or Services, and the license granted to Customer herein immediately, in the event: (i) Customer or any Authorized User breached the Agreement, and; (ii) Customer ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within forty five (45) days. In addition, the Company may terminate this Agreement for any reason or no reason, by providing the Customer with seven (7) days prior written notice.
9.3. Effect of Termination. In case of termination or expiration: (i) the rights granted to the Customer herein will immediately terminate, including immediate termination of the License; (ii) all Fees owed by Customer to the Company will be immediately due; (iii) Customer’s access authorizations to the Product and Services will be immediately blocked; and (iv) the Customer will immediately return to the Company or destroy all Confidential Information of the Company in the Customer’s possession, including any copies thereof in any media and format whatsoever, and will so certify to the Company. The terms of Sections 5-12 will survive any termination or expiration of this Agreement.
9.4. Upon any termination or expiration of this Agreement, Customer shall immediately cease operating the Product and all of its components and destroy, uninstall and erase, where applicable, all copies of the Product and all of its components, including without limitation on all systems and all types of media and in computer memory.
10. LIMITED WARRANTY
10.1. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCT and SERVICe ARE PROVIDED “AS-IS” AND THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, WHETHER EXPRESSED OR IMPLIED, REGARDING THE PRODUCT AND SERVICES, INCLUDING WITHOUT LIMITATION, THAT THE PRODUCTS OR SERVICES SHALL OPERATE ERROR FREE OR UNINTERRUPTED, OR WITH RESPECT TO THE PRODUCTS AND SERVICES’ MERCHANTABILITY, TITLE OR FITNESS TO A PARTICULAR PURPOSE, NON-INFRINGEMENT, RESULTS, ACCURACY, COMPLETENESS, ACCESSIBILITY, COMPATIBILITY, SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, AND LACK OF VIRUSES, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND REGARDLESS OF ANY KNOWLEDGE OF CUSTOMER’S PARTICULAR NEEDS. TO THE FULL EXTENT PERMITTED BY LAW, COMPANY SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET OR ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS NOT CONTROLLED BY COMPANY. CUSTOMER ASSUMES ALL RISKS AND RESPONSIBILITIES FOR SELECTION OF THE PRODUCT TO ACHIEVE ITS INTENDED OR EXPECTED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE PRODUCT. Without derogating from the generality of the above, the Company shall not be liable for any damages arising from failure to download, install or run updates to the product when due.
10.2. FURTHERMORE, THE COMPANY ASSUMES NO RESPONSIBILITY OR LIABILITY FOR: (I) ANY UNAUTHORIZED ACCESS TO OR USE OF THE COMPANY SERVERS AND/OR ANY AND ALL CONTENT STORED THEREIN; (II) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; OR (III) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES THROUGH THE ACTIONS OF ANY THIRD PARTY .
11. LIMITATION OF LIABILITY
11.1. THE COMPANY SHALL NOT BE LIABLE FOR ANY LOSS OF USE, FAILURE OF SECURITY, LOST DATA, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE associated with the product or services.
11.2. NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT, EXCEPT WITH RESPECT TO FRAUD OR willful misconduct, THE COMPANY’S ENTIRE LIABILITY UNDER THE AGREEMENT SHALL NOT EXCEED THE LESSER OF THE (I) AMOUNT ACTUALLY PAID TO COMPANY UNDER THE AGREEMENT DURING A THREE (3) MONTHS PERIOD PRIOR TO THE CLAIM RAISING THE LIABILITY; OR (II) USD 500.
12. GENERAL TERMS.
12.1. Customer Marks. The Company may use and display Customer’s name, logo, trademarks, and service marks (the “Customer Marks”) on Company’s website, and identify Customer as a customer of the Company. As soon as reasonably practicable upon Customer’s written request, the Company will remove any such Customer Marks from its website.
12.3. Waiver. The waiver by either Party of any of its rights or claims under the Agreement must be in writing and will not be construed as a waiver of any subsequent right or claim. A Party’s performance of its obligations hereunder following a breach by the other Party shall not be construed as a waiver by the non-breaching Party of any rights or claims.
12.4. Assignment. The Customer may not assign the Agreement (or any part thereof) without the advance written consent of the Company, and any purported assignment in violation of this clause will be null and void and result in the automatic termination of this Agreement. Company may assign the Agreement (or any part thereof) without the advance written consent of the Customer.
12.5. Severability. If any provision of the Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that the Agreement shall otherwise remain in effect.
12.6. Third Party Beneficiary. These Terms are not intended to and shall not be construed to give any third party any interest or rights (including, without limitation, any third party beneficiary rights) with respect to or in connection with any agreement or provision contained hereunder or contemplated hereby, except as otherwise expressly provided for in these terms.
12.7. Export. You represent and warrant that You are not prohibited from receiving the Product under U.S. export laws; that it is not a national of a country subject to U.S. trade sanctions; that You will not use the Product in a location that is the subject of U.S. trade sanctions that would cover the Product; and that to Your knowledge You are not on the U.S. Department of Commerce’s table of deny orders or otherwise prohibited from obtaining goods of this sort from the United States.
12.8. Governing Law. The Agreement shall be governed by and construed in accordance with the laws of Israel, without regard to the conflicts of law provisions thereof. Any claim regarding the Agreement, the Product or the Services may be solely brought to the competent courts in Tel-Aviv, Israel.
12.9. Entire Agreement. The Agreement constitutes the entire understanding between the parties, and supersede all prior discussions, representations, understandings or agreements, whether oral or in writing, between the parties with respect to the subject matter of the Agreement. Any modification or amendment to the Agreement, including these Terms, must be in writing and signed by authorized representatives of both parties.