Last Revised: July 21, 2018
You must accept these terms and conditions, (the “Terms“) in order to use Aiola Ltd.’s (“Aiola” or the “Company”) AI software which a platform for connecting business managers to advanced systems and analytics and a set of predefined such systems and analytics, including all revisions, corrections, modifications, enhancements, improvements, updates and upgrades thereto (the “Software”).
PLEASE NOTE: UNLESS YOU (OR YOUR ORGANIZATION) AND THE COMPANY HAVE EXECUTED A SEPARATE AGREEMENT IN WRITING WHICH EXPRESSLY SUPERSEDES THESE TERMS, YOUR USE OF THE SOFTWARE IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH HEREIN.
Subject to the terms and conditions stipulated herein and the payment of all fees set forth in the Purchase Order (the “Fees”), the Company hereby grants you, and you hereby accept, a limited, non-exclusive, non-sublicensable, non-transferable and fully revocable license to install, operate, use the Software solely for your organization’s internal business purposes, and in accordance with the Software’s documentation (the “Purpose”). The Software will be installed and used in accordance with (a) the terms contained herein, (b) the applicable Software’s documentation, and (c) the use limitations (if any) specified in the Purchase Order. The term of the license will be based on an annual subscription basis. Other than the license granted under this section, all other rights in the Software are expressly reserved by the Company.
- Updates; Support.
Company shall make available to you any updated version of the Software or documentation, if and when Company makes them generally available for no additional charge to its other customers. It is your responsibility to install said version upon their receipt from the Company. The Company shall not be responsible for any damages or losses of any kind caused due to your failure to install updated versions of the Software. Following the Warranty Period (as such term is defined below), support requests may be forwarded to the Company at firstname.lastname@example.org.
- Authorized Users
You may not allow the use of and/or access to the Software by third parties or anyone other than the your (i) employees whose duties require such access or use; and (ii) authorized consultants and subcontractors (excluding any direct competitors of the Company), while such access will be permitted only at your facilities/premises and only where such use is required as part of their performance of services on your behalf. You ensure that any of the foregoing users comply with terms that are no less restrictive than the terms of these Terms. You shall bear full responsibility for any harm caused to the Company due to the breach of the terms of these Terms by your authorized users.
- Use Restrictions
There are certain conducts which are strictly prohibited when using the Software. Please read the following restrictions carefully. Failure to comply with any of the provisions set forth herein may result (at Aiola’s sole discretion) in the termination of these Terms and may also expose you to civil and/or criminal liability.
Unless otherwise explicitly permitted under these Terms or in writing by Aiola, you may not (and you may not permit anyone to): (i) use, modify, incorporate into or with other software, or create a derivative work of any part of the Software; (ii) sell, resell, license (or sub-license), lease, assign, transfer, pledge, or share your rights under these Terms with any third party; (iii) copy, distribute, publish or reproduce copies of the Software; (iv) use or permit the Software to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise; (v) disclose, publish or otherwise make publicly available the results of any benchmarking of the Software, or use such results for your own competing software development activities; (vi) disassemble, decompile, reverse engineer, revise or enhance the Software or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Software, except to the extent otherwise permitted under applicable law in the jurisdiction of use; (vii) remove or otherwise alter any of the Company’s trademarks, logos, copyrights or other proprietary notices or indicia, if any, fixed or attached to the Software; (viii) ship, transfer or export the Software into any country, or make available for use the Software in any manner which is in violation of applicable export control laws, restrictions or regulations; (ix) disclose, provide or otherwise make available trade secrets contained within the Software, in any form to any third party; and/or (x) use the Software in violation of applicable laws, or in a manner that infringes third party rights (including without limitation, intellectual property or privacy rights).
- Special provisions relating to Third Party Components
The Software may use or include third party software, files and components that are subject to open source and third party license terms, which require notification thereof to licensees (“Third Party Components”). Your right to use such Third Party Components is subject to any applicable acknowledgements and license terms accompanying such Third Party Components. If there is a conflict between the licensing terms of such Third Party Components and these Terms, the licensing terms of the Third Party Components shall prevail in connection with the related Third Party Components. You hereby acknowledge that such Third Party Components are provided on an “AS IS” basis without any warranty of any kind and shall be subject to any and all limitations and conditions required by their third party licensors. For the avoidance of doubt, the Software (except for the Third Party Components contained therein) is not deemed as an “open source” or “publicly available” software. A list of Third Party Components that their licenses require certain notification is available in the Software or in its documentation and may be updated from time to time. With respect to licenses of Third Party Components that require the provision of the open source code of such Components, the Company will provide Customer and any third party, during a period set forth by each such license, for a charge of no more than Company’s cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, on a medium customarily used for software interchange. For that purpose, you should contact the Company at: email@example.com.
The Fees and payment terms for the license and the Company’s Software-related services (if explicitly stated in the Purchase Order) are set forth in in the Purchase Order. Unless otherwise specified in the Purchase Order, (i) you will pay all amounts due under these Terms in United States Dollars, and (ii) all amounts invoiced hereunder are due and payable within thirty (30) days of the date of the invoice. All amounts payable under these Terms are exclusive of sales, use, value-added, withholding, and other taxes and duties. You shall pay all taxes and duties assessed in connection with these Terms by any authority, except for taxes payable on the Company’s net income. If any such tax or duty has to be withheld or deducted from any payment under these Terms, you shall gross-up the payment under these Terms by such amount to ensure that after such withholding or deduction the Company shall receive an amount equal to the payment otherwise required.
Your use of the Software will not require the accessing, monitoring, analyzing, hosting or processing of personally identifiable information (“PII”) by the Company. Where a possibility arises in which the Company may have access to PII, the parties shall sign an applicable data protection addendum, which shall be prepared by the Company and supplemented to these Terms.
- Intellectual Property Rights
The Software is licensed and not sold. The Company and its licensors are and shall retain all right, interest and ownership in and to the Software, including without limitation in and to any and all intellectual property rights (including, without limitation, copyrights, patents, trade secrets, trademarks, etc.) evidenced by or embodied in and/or attached, connected and/or related to the Software. These Terms does not convey to you an interest in or to the Software but only a limited revocable license to use the Software in accordance with the terms of this these Terms. Nothing in these Terms constitutes a waiver of the Company’s intellectual property rights under any law.
Any additional content (system integrations and data analytics, for example) that is developed internally by a customer is the intellectual property of its developer and the company (Aiola) doesn’t have any claims on it. The developer can choose to share the content, allowing others to use it as part of the system with no royalties or fees. (until we set up a market place for content in the future).
To the extent you provide any feedbacks, comments or suggestions regarding the Software to the Company (“Feedback”), the Company shall have a non-exclusive, royalty-free, fully paid up, worldwide, perpetual and irrevocable license to incorporate the Feedback into the Software and/or other current or future products, technologies or services and use same for any purpose all without further compensation to you and without your approval. You agree that all such Feedback shall be deemed to be non-confidential.
Further, you warrant that your Feedback is not subject to any license terms that would purport to require the Company to comply with any additional obligations with respect to any Company’s current or future products, technologies or services that incorporate any Feedback.
The Company may collect, disclose, publish and use in any other manner any anonymous and non-identifiable information (i.e. information that does not allow for the identification of an individual person) which is derived from the use of the Software, in order to provide and improve the Software and Software-related services (if any), and for any other legitimate business purposes. The Company shall remain the exclusive owner of any such information. You may opt-out from such collection at any time by contacting us at: firstname.lastname@example.org.
- Trademarks and Trade names
The Company’s marks and logos and all other proprietary identifiers used by the Company in connection with the Software (“Company Trademarks”) are all trademarks and/or trade names of the Company, whether or not registered. All other trademarks, service marks, trade names and logos which may appear on the Software belong to their respective owners (“Third Party Marks”). No right, license, or interest to the Company Trademarks and the Third Party Marks is granted hereunder, and you agree that no such right, license, or interest may be asserted by you with respect thereto and therefore you will avoid using any of those marks, except as permitted herein.
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 other information that a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (the “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 these Terms or by applicable law. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing party. To the extent that the parties executed a non-disclosure agreement (“NDA”), the provisions of the NDA shall apply to any disclosure of Confidential Information made hereunder and the parties shall continue to comply with the provisions of the NDA. To the extent that the NDA expires prior to the termination of these Terms, the parties agree that the term of the NDA (and the non-disclosure obligations thereunder) shall be automatically extended to the term of these Terms and shall survive thereafter in accordance with its terms. In the event of any inconsistency between the terms of the NDA and the terms hereof, these Terms shall prevail.
- Warranties, Exclusions, Disclaimers.
Each party represents and warrants to the other party that (a) it has full corporate power and authority to execute, deliver and perform under these Terms; (b) these Terms, when executed by it, will constitute a valid and legally binding obligation of such party; and (c) the execution, delivery and performance by such party of these Terms will not constitute a breach of, or otherwise conflict with, any of its respective corporate documents or any other agreement, instrument or commitment to which it is subject or by which it is bound.
Subject to the limitations and conditions set forth herein, the Company represents and warrants that commencing from the date the Software is delivered to you and for a period of ninety (90) days thereafter (the “Warranty Period”), under normal authorized use, the Software shall perform in substantial conformance with its documentation. As your sole and exclusive remedy and the Company’s sole liability for breach of this warranty, the Company shall bring the Software into conformance during the Warranty Period.
The warranty set forth above shall not apply if the failure of the Software results from or is otherwise attributable to: (i) repair, maintenance or modification of the Software by persons other than the Company’s personnel or authorized third parties; (ii) accident, negligence, abnormal physical or electrical stress, abnormal environmental conditions, abuse or misuse of the Software; (iii) use of the Software other than in accordance with the Software’s manuals, specifications or documentation; (iv) the combination of the Software with equipment or software not authorized or provided by the Company or otherwise approved by the Company in the Software’s manuals, specifications or documentation; (v) your failure to install updated Software versions that were provided to you by the Company; or (vi) the Software being licensed for evaluation, testing or demonstration purposes.
OTHER THAN AS EXPLICITLY STATED UNDER THESE TERMS, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS. THE COMPANY DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE SECURE, UNINTERRUPTED, ERROR-FREE, FREE OF VIRUSES, BUGS, WORMS, OTHER HARMFUL COMPONENTS OR OTHER PROGRAM LIMITATIONS. TO THE EXTENT ALLOWED BY LAW, THE COMPANY EXPRESSLY DISCLAIMS ALL EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, NON-INTERFERENCE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY AND ANY WARRANTIES ARISING OUT OF THE COURSE OF DEALING OR USAGE OF TRADE.
- Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW (A) THE COMPANY, ITS AFFILIATES, SUPPLIERS AND/OR LICENSORS SHALL NOT BE LIABLE WHETHER UNDER CONTRACT, TORT OR ANY LIABILITY THEORY, TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO, ANY LOSS OR DAMAGE TO BUSINESS EARNINGS, LOST PROFITS OR GOODWILL AND LOST OR DAMAGED DATA OR DOCUMENTATION), SUFFERED BY ANY PERSON, ARISING FROM AND/OR RELATED TO THE SOFTWARE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN NO EVENT SHALL THE COMPANY’S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS, FROM ALL CLAIMS OR CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE TOTAL AMOUNTS ACTUALLY RECEIVED BY THE COMPANY UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD PRIOR TO ANY SUCH CLAIM OR CAUSE OF ACTION AROSE. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
The system may include forecasting and prediction models that are based on simple or state-of-the-art algorithms and methods. These forecasts and predictions are served as probability, only and can’t be used to make business decisions without considering their probabilities. These models are based on provided data by the customer and can result in false forecasts and predictions as data sources are biased or changing. The customer must take these inherent limitations of forecast and predictions models when using them in any business action.
Company acknowledges and agrees to defend and hold you harmless from and against all losses, damages, liabilities, claims, actions and all related expenses (including reasonable attorneys’ fees and expenses) in connection with any third party action or suit brought against you alleging that the Software licensed to you hereunder infringes intellectual property rights held by any third party (“IP Infringement Claim”), and the Company will pay any damages awarded in final judgment of a competent court against you that are attributable to any such claim, provided that (i) you promptly notify the Company in writing of such claim; and (ii) you shall grant the Company sole authority to handle the defense or settlement of any such claim, suit or proceeding and will provide the Company with all reasonable information and assistance, at Company’s expense. The Company will not be bound by any settlement that you enter into without the Company’s prior written consent. If the Software becomes, or in the Company’s opinion is likely to become, the subject of an IP Infringement Claim, then the Company may, at its sole discretion: (a) procure for you the right to continue using the Software; (b) replace or modify the Software to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot be accomplished despite of the Company’s reasonable efforts, the Company may accept return of the affected Software and provide a prorated refund to you based on the remaining subscription term. Notwithstanding the foregoing, the Company shall have no responsibility for any IP Infringement Claims resulting from or based on: (i) modifications to the Software made by a party other than the Company or its designee; (ii) your failure to use updated or modified Software version provided by the Company specifically to avoid infringement; or (iii) the combination or use of the Software with equipment, devices or software not supplied or authorized by the Company or not in accordance with the Company’s instructions and documentation. THE FOREGOING TERMS STATE THE COMPANY’S SOLE AND EXCLUSIVE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY IP INFRINGEMENT CLAIMS.
You agree to defend, indemnify and hold harmless the Company, its affiliates, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney’s fees) arising from: (i) your breach of third party rights in connection with using the Software; (ii) making accessible any PII to the Company; and/or (iii) your breach of these Terms.
- Term and Termination
Unless otherwise agreed in the Order, the terms are made effective on the date the Software is delivered to you, and it shall remain in full force and effect for a period of one (1) year thereafter (the “Initial Period”). Following the Initial Period, the Terms will be automatically renewed for additional one (1) year periods (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless a party notifies the other of its intention not to renew these Terms at least thirty (30) days prior to the date of expiration of the then-current Term.
A party may terminate these Terms for cause if it notifies the breaching party of a breach thereof and the breaching party fails to cure such breach within fifteen (15) days following such notice. In addition, either party may terminate these Terms for convenience, upon a thirty (30) days prior written notice. The provisions of this paragraph are in addition to non-renewal notice in accordance with the above.
Upon termination or expiration of the Terms: (i) any licenses granted to you under these Terms shall expire and you shall (and verify that each Authorized User shall) discontinue all further use of the Software; (ii) you shall promptly remove the Software from all hard drives, networks and other storage media and destroy all copies of the Software in your possession or under your control. Upon the Company’s request, you shall, within three (3) days, certify the destruction of all copies of the Software, documentation and related materials provided to you by the Company or on its behalf; and (iii) any sums paid by you until the date of termination are non-refundable, and you shall not be relieved of the your duty to discharge in full all due sums owed by you to the Company under these Terms, which sums shall become immediately due and payable on the date of termination. The provisions of these Terms that, by their nature and content, must survive the termination of these Terms in order to achieve the fundamental purposes of these Terms, shall so survive such termination.
- Reference Customer
You agree that Company may identify your organization as a user of the Software and use your organization’s trademark and/or logo (i), upon your permission, in sales presentations, promotional/marketing materials, and press releases, and (ii) in order to develop a brief customer profile for use by the Company on the Company’s website for promotional purposes.
(a) These Terms constitute the entire terms and conditions between you and the Company relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and the Company, (b) any claim relating to the Software or the use thereof will be governed by and interpreted in accordance with the laws of the State of Israel. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded, (c) any dispute arising out of or related to the Software will be brought in, and you hereby consent to exclusive jurisdiction and venue in, the competent courts of the Tel-Aviv-Jaffa District. You agree to waive all defenses of lack of personal jurisdiction and forum non-convenience and agree that process may be served in a manner authorized by applicable law or court rule. Notwithstanding the foregoing, the Company may seek injunctive relief in any court of competent jurisdiction, (d) these Terms do not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the parties hereto, (e) no waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof, (f) YOU ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED, (g) if any provision hereof is adjudged by any court of competent jurisdiction to be unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect while most nearly adhering to the intent expressed herein, (h) neither party may assign its rights or obligations under these Terms without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign these Terms without the consent of the other party in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to these Terms or similar transaction., (i) no amendment hereof will be binding unless in writing and signed by the Company, (j) neither party shall be liable for any failure to perform or delay in performance of any of its obligations under these Terms caused by circumstances beyond the reasonable control of a party, including without limitation act of God, government or local government, pandemic, war, fire, flood, earthquake or storm, acts of terrorism, explosion, civil commotion, bank strike or industrial dispute, and (k) the parties agree that all correspondence relating to these Terms shall be written in the English language.
- For information, questions or notification of errors, please contact:
If you have any questions (or comments) concerning the Terms, you are most welcome to send us an email to email@example.com.