End User License Agreement
This End User License Agreement (“EULA”) constitutes a valid and binding agreement between Onebeat Integration Ltd., an Israeli corporation, whose address is 7 Menachem Begin., Ramat Gan, Israel (“Onebeat”) and the customer installing or using the Software (as defined below) (“End User”) effective as of the date of the installation of the Software (the “Effective Date”).
By using the Software, End User is agreeing to be bound by the terms of this EULA. If End User does not agree to these terms, he must promptly cease all further installation or use of the Software.
- LICENSE GRANT. Subject to the terms and conditions of this EULA, Onebeat hereby grants to the End User, a non-exclusive, non-sublicensable right and license to use the on-premises version of Onebeat’ application software product (“License” and the “Software” respectively) for internal purposes only. The End User will be entitled to use the Software under the License in accordance with the Software specifications and documentation supplied by Onebeat (the “Documentation”).
- RESTRICTIONS ON USE. Except as otherwise expressly provided in this EULA, End User shall not (and shall not permit any third party to): (a) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any external commercial use of, use on a timeshare or service bureau, or use in an application service provider or managed service provider environment, or otherwise generate income from the Software; (b) copy the Software onto any public or distributed network, except for an internal and End User cloud computing environment (such as Amazon Cloud); (c) cause the decompiling, disassembly, or reverse engineering of any portion of the Software, or attempt to discover any source code or other operational mechanisms of the Software (except where such restriction is expressly prohibited by law without the possibility of waiver, and then only upon prior written notice to Onebeat); (d) modify, adapt, translate or create derivative works based on all or any part of the Software; (e) modify any proprietary rights notices that appear in the Software or components thereof; (f) use any Software in violation of any applicable laws and regulations (including any export laws, restrictions, national security controls and regulations) or outside of the license scope set forth in Section 1.1; or (g) use the Software to (1) store, download or transmit infringing, libelous, or otherwise unlawful or tortious material, or malicious code or malware, or (2)interfere with or disrupt the integrity or performance of third party systems, or the Software or data contained therein, or (3) attempt to gain unauthorized access to the Software or Onebeat’ systems or networks. End User shall not export or re-export, directly or indirectly, any Software or technical data or any copy, portions or direct product thereof (i) in violation of any applicable laws and regulations, (ii) to any country for which any government, or any agency thereof, at the time of export requires an export license or other governmental approval, including Cuba, Libya, North Korea, Iran, Iraq, Syria, Crimea, the Donetsk People’s Republic [DNR], and the Luhansk People’s Republic [LNR] or Rwanda, without first obtaining such license or approval.
- UNAUTHORIZED USE. End User shall notify Onebeat promptly of any unauthorized use of any password or account or any other known or suspected breach of security or misuse of the Software. End User is responsible for use of the Software by any and all employees, contractors, or other users that it allows to access the Software.
- SCOPE AND RESTRICTIONS. “Confidential Information” means all information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that is designated in writing or identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. The terms of this EULA, the Software, any technical or other Documentation relating to the Software, logins, passwords and other access codes and any and all information regarding Onebeat’ business, products and services are the Confidential Information of Onebeat. The Receiving Party will: (i) not use the Disclosing Party’s Confidential Information for any purpose outside of this EULA; (ii) not disclose such Confidential Information to any person or entity, other than its affiliates, employees, consultants, agents and professional advisers who have a “need to know” for the Receiving Party to exercise its rights or perform its obligations hereunder, provided that such employees, consultants, and agents are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section 2; and (iii) use reasonable measures to protect the confidentiality of such Confidential Information. If the Receiving Party is required by applicable law or court order to make any disclosure of such Confidential Information, it will first give written notice of such requirement to the Disclosing Party, and, to the extent within its control, permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the Disclosing Party in seeking to obtain such protection. Further, this Section 2 will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt without any restriction on its disclosure; (ii) is or has become public knowledge or publicly available through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
- EQUITABLE RELIEF. The Receiving Party acknowledges that unauthorized disclosure of the Disclosing Party’s Confidential Information could cause substantial harm to the Disclosing Party for which damages alone might not be a sufficient remedy and, therefore, that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law or equity.
Onebeat and its suppliers own and shall retain all proprietary rights, including all copyright, patent, trade secret, trademark and all other intellectual property rights, in and to the Software and the results of any Services. End User acknowledges that the rights granted under this EULA do not provide End User with title to or ownership of the Software. Certain “free” or “open source” based software (the “FOSS Software”) and third party software included with the Software (the “Third Party Software”) is provided with the Software but is not considered part of the Software hereunder. With respect to Third Party Software included with the Software, such Third Party Software suppliers are third party beneficiaries of this EULA. End User’s use of such FOSS Software is subject to the terms of the licenses set forth on such webpage.
TERM AND TERMINATION.
- This EULA shall remain in full force and effect unless and until terminated. This EULA will terminate immediately, automatically and without notice if End User fails to comply with any provision of this EULA.
- Upon expiration or termination of this EULA for any reason all rights granted to End User shall terminate and End User shall destroy any copies of the Software and Documentation within End User’s possession and control. All fees that have accrued as of such expiration or termination, and Sections 1.2, 1.3, 2, 3, 4, 5 and 6 through 8, will survive any expiration or termination hereof.
WARRANTY DISCLAIMER. ALL SOFTWARE, DOCUMENTATION, MAINTENANCE AND SUPPORT AND SERVICES ARE PROVIDED “AS IS” AND Onebeat AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT THERETO, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR THE CONTINUOUS, UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR SECURE ACCESS TO OR OPERATION OF THE SOFTWARE. Onebeat EXPRESSLY DISCLAIMS ANY WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION OR DATA ACCESSED OR USED IN CONNECTION WITH THE SOFTWARE, DOCUMENTATION, MAINTENANCE AND SUPPORT, OR SERVICES. Onebeat is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet, and End User acknowledges that the Software and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities. The Software is not fault-tolerant and is not designed or intended for use in hazardous environments (each, a “High Risk Use”). Onebeat expressly disclaims any express or implied warranty or representation of fitness for High Risk Use. Onebeat shall not be liable to End User for any loss, damage or harm suffered by End User that is directly or indirectly caused by End User’s unauthorized use of the Software.
LIMITATION OF LIABILITY.
- THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, OR OF ANY OTHER TYPE, WHETHER EXPRESS OR IMPLIED, AND TO ANY REMEDY AGAINST Onebeat AND/OR ITS LICENSORS, WHETHER IN CONTRACT, TORT, DELICT, QUASI-DELICT OR OTHERWISE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES SO SOME OF THE PRECEDING EXCLUSIONS MAY NOT APPLY.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL Onebeat BE LIABLE TO DISTRIBUTOR, THE CUSTOMERS OR TO ANY THIRD PARTY PURSUANT TO THIS EULA OR IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED HEREIN, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF USE, PROFITS, BUSINESS, INCOME, GOODWILL OR OTHER COMMERCIAL LOSS, EVEN IF Onebeat HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT TO THE EXTENT THAT SUCH LIABILITY MAY NOT LAWFULLY BE EXCLUDED.
- NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, UNDER NO EVENT SHALL Onebeat’s MAXIMUM CUMULATIVE LIABILITY IN CONNECTION WITH THIS EULA AND/OR THE PRODUCTS EXCEED HALF OF THE AGGREGATE AMOUNT ACTUALLY PAID BY DISTRIBUTOR TO Onebeat HEREUNDER IN THE 3 (THREE) MONTHS PERIOD IMMEDIATELY PRECEDING THE LAST DATE OF EVENTS GIVING RISE TO SUCH LIABILITY. WITHOUT DEROGATING FROM THE AFORESAID, ANY LIABILITY CAUSED BY OR RESULTING FROM ANY DEFECT IN THE PRODUCTS SOLD HEREUNDER SHALL BE LIMITED AS PROVIDED IN THE PROVISIONS OF THE WARRANTY AND BE GOVERNED THEREBY.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL Onebeat AND/OR ITS LICENSORS BE LIABLE FOR THE LOSS OF APPLICATION AND/OR DATABASE AVAILABILITY, APPLICATION AND/OR DATABASE PERFORMANCE DEGRADATION OF ANY KIND AND LACK OF CONTINUED SOFTWARE OPERATION. Onebeat AND/OR ITS LICENSORS MAKE NO WARRANTY WITH RESPECT TO THE ACCURACY, CORRECTNESS, TIMELINESS, PERFORMANCE, AVAILABILITY OR SUITABILITY OF ANY SERVICE OR INFORMATION PROVIDED BY ANY SERVER, AND TAKE NO RESPONSIBILITY THEREFORE.
The limits above will not apply to the extent prohibited by applicable law.
Except for payment obligations, neither party hereto will be liable for defaults or delays due to acts of God, or the public enemy, acts or demands of any government or governmental agency, fires, earthquakes, floods, accidents, or other unforeseeable causes beyond its reasonable control and not due to its fault or negligence.
- This EULA shall be governed by and construed under the laws of the state of Israel as applicable therein without reference to conflict of laws principles.
- Failure by Onebeat to exercise any of its rights under, or to enforce any provision of, this EULA will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this EULA is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this EULA will remain in full force and effect.
- This EULA and its exhibits, together with any statements of work incorporating this EULA, if applicable, represent the entire agreement between the parties and supersede any previous or contemporaneous oral or written agreements or communications regarding the subject matter of this EULA.
- This EULA shall control over additional or different terms of any purchase order, confirmation, invoice, statement of work or similar document, even if accepted in writing by both parties, and waivers and amendments to this EULA shall be effective only if made by non-pre-printed agreements clearly understood by both parties to be an amendment or waiver to this EULA.
- For purposes of this EULA, “including” means “including without limitation.”
- The rights and remedies of the parties hereunder will be deemed cumulative and not exclusive of any other right or remedy conferred by this EULA or by law or equity.
- No joint venture, partnership, employment, or agency relationship exists between Onebeat and the End User as a result of this EULA or use of the Software.
- Onebeat reserves the right to perform its obligations from locations and/or through use of affiliates and subcontractors, worldwide, provided that Onebeat will be responsible for such parties.
- End User may not assign this EULA without the prior written approval of Onebeat and any purported assignment in violation of this section shall be void, except for an assignment to End User’s affiliates; Onebeat may assign, transfer or subcontract this EULA in whole or in part. Upon any assignment of this EULA by End User that is approved by Onebeat, any licenses that contain an “unlimited” aspect will, with respect to End User or the successor entity, as applicable, be capped at the number of authorized Software units in use immediately prior to such assignment.
- End User agrees that Onebeat may refer to End User by its trade name and logo, and may briefly describe End User’s business, in Onebeat’ marketing materials and website, subject to End User’s prior written consent.
- Onebeat may give notice to End User by electronic mail to End User’s email address on record in End User’s account information, or by written communication sent by first class mail or pre-paid post to End User’s address on record in End User’s account information. End User may give notice to Onebeat at any time by any letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Onebeat at the following address or such other address as may be notified to End User from time to time: Onebeat Integration Ltd.,7 Menachem Begin St., Ramat Gan, Israel, Attn: email@example.com. Notice under this EULA shall be deemed given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.