IMPORTANT – READ CAREFULY THE FOLLOWING AGREEMENT BEFORE USING THE SERVICE (AS DEFINED BELOW). BY SELECTING THE “I AGREE” BUTTON BELOW, OR BY USING THE SERVICE, YOU (DEFINED IN THIS AGREEMENT AS THE “CUSTOMER”) AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, THEN DO NOT CLICK “I AGREE” OR USE THE SERVICE. Furthermore, you hereby waive any rights or requirements under any law or regulation in any jurisdiction which requires an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law. If you are entering into this Agreement on behalf of a company or another legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement, in which case the term “You” will refer to such entity and its affiliates. If the legal entity that you represent does not agree with this Agreement, you must not accept this Agreement or use the Services (as defined below).
The following terms and conditions (the “Agreement”) stipulate the terms and conditions of your access and use Lokali Ltd.’s (DBA “FSA”) proprietary financial analytics services accessible on a Software as a Software basis (the “Services”). The Services are provided solely for your own use. Your use of the Services is expressly conditioned on your compliance and consent with this Agreement. By accessing or using the Services, you are indicating that you agree to be bound by this Agreement. FSA reserves the right to modify or discontinue the Services or any feature or functionality thereof at any time without notice.
Definitions. The following definitions shall have the following meanings throughout the Agreement:
“Documentation” means FSA’s technical documentation related to the Services as provided to the Customer from time to time.
“Intellectual Property Rights” means all intangible legal rights, titles and interests including without limitation, all inventions, patents, patent applications, trademarks, service marks, trade dress, logos, trade names, domain names, any work of authorship, copyrights, trade secrets, Confidential Information, and all other proprietary rights in whatever form or medium, in each case on a worldwide basis; together with all revisions, extensions, reexaminations translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith.
“Specifications” means the material technical functions, features, and operating environment of the Services.
License. You will provide FSA with data as required for the performance of the Services by FSA. After receipt of the data and its analytics, FSA shall grant to Customer, subject to the terms and conditions of this Agreement, a revocable, non-exclusive, non-sublicensable, non-transferable and limited right throughout the applicable subscription period, to use and access the Services solely for Customer’s internal business use. In the framework of the Services, FSA will share documents with you, and any use of such documents will be in accordance with the permissions associated with such documents as defined by FSA.
Content
License to FSA. Customer hereby grants FSA a limited, non-exclusive license to use, copy and reproduce any materials and data provided by Customer (the “Content”) solely to the extent required to provide the Customer the Services. Customer acknowledges and agrees that FSA will not be liable for any Content and any use thereof, including, without limitation, for any errors or omissions, or for any infringement of third party’s rights, loss or damage of any kind incurred as a result of the use or display of any Content. The Content is and shall remain Customer’s property and shall be used at Customer’s sole and absolute responsibility. The Services are not intended to be used as storage, backup or archiving services. Customer has the continuing obligation to keep the Content accurate and up to date. It is the Customer’s responsibility to back up the Content and the Customer is responsible for any lost or unrecoverable Content. FSA does not screen Content and is not responsible for any use of the Content.
Warranties and Covenants. Customer hereby warrants, represents and covenants that: (i) the copying, uploading and use of the Content does not infringe upon any third party’s rights, including intellectual property rights and privacy rights; (ii) it has fully complied with any third-party licenses, permits and authorizations required in connection with the Content; (iii) the Content does not contain any viruses, worms, Trojan horses or other harmful or destructive code or content; (iv) the Content is not obscene, libelous, offensive, vulgar, pornographic, profane, or otherwise inappropriate as determined by FSA at its sole discretion; and (v) the Content is not illegal or encourage illegal activity.
Restrictions. Customer shall (i) not attempt to infiltrate, hack, modify, reverse engineer, decompile, or disassemble the Platform, or any part thereof for any purpose and shall not attempt to create or derive the source code from the object code provided hereunder, nor shall it permit any third party to do so; (ii) not represent that it possess any proprietary interest in the Services; (iii) not directly or indirectly, take any action to contest FSA’s Intellectual Property Rights or infringe them in any way; (iv) not resell, lease, sublicense or distribute the Services to any person; and (v) except as expressly permitted or contemplated in this Agreement, not use the Services to provide third parties with managed services or provide remote access to the Services to any person.
Intellectual Property Rights. All Intellectual Property Rights in the Services and any part thereof, including without limitation, any documents which are provided as part of the Services (such as google sheets, google data studio/BigQuery and other google cloud work products), and any and all derivatives, changes and improvements thereof lie exclusively with FSA. FSA does not and shall not be deemed to have sold or transferred title in the Services or any part thereof to Customer. FSA reserves all rights not expressly granted hereunder, and nothing in this Agreement constitutes a waiver of FSA’s Intellectual Property Rights under any law.
Confidentiality. Each party may have access to certain non-public proprietary, confidential information or data of the other party, regardless of the manner in which it is furnished, which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (together, the “Confidential Information”). Confidential Information shall exclude any information that (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of receiving party; (ii) the receiving party can demonstrate in its records to have had rightfully in its possession prior to disclosure of the Confidential Information by the disclosing party; (iii) receiving party rightfully obtains from a third party who has the right to transfer or disclose it, without default or breach of this Agreement; or (iv) the receiving party can demonstrate in its records to have independently developed, without breach of this Agreement or any use of or reference to the Confidential Information. The receiving party agrees: (a) not to disclose the disclosing party’s Confidential Information to any third parties other than to its, directors, officers, employees, advisors or consultants (collectively, the “Representatives”) on a strict “need to know” basis only and provided that such Representatives are bound by written agreements to comply with confidentiality obligations as protective as those contained herein; (b) not to use or reproduce any of the disclosing party’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; and (c) to keep the disclosing party’s Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care. Notwithstanding the foregoing, if receiving party is required by legal process or any applicable law, rule or regulation, to disclose any of disclosing party’s Confidential Information, then prior to such disclosure, receiving party will give prompt written notice to disclosing party so that it may seek a protective order or other appropriate relief.
Mutual Warranties. Each party represents and warrants that (i) this Agreement constitutes a legal, valid and binding obligation of such party, enforceable against it in accordance with the terms of this Agreement, and (ii) its execution and delivery of the Agreement will not violate any applicable law, rule or regulation.
FSA Warranties. FSA warrants that the Services shall materially conform to the Specifications. FSA’s sole liability and Customer’s exclusive remedy for any breach of this warranty shall be to use reasonable commercial efforts to remedy any failure of the Services to materially conform to the Specifications, provided that (i) Customer is not otherwise in breach of this Agreement, and (ii) Customer has reported in writing to FSA the claimed failure promptly upon discovery. The express warranty and obligations specified in this Section shall not apply if the Services or any part thereof (a) were altered, modified, or adjusted in any manner by Customer or a third party not under FSA’s control, without FSA’s prior written consent, or (b) were not used, operated or maintained in accordance with this Agreement or the Documentation, or (c) fail to function due to a malfunction of Customer’s hardware, software or connectivity.
Disclaimer of Warranties. EXCEPT FOR THE WARRANTIES PROVIDED UNDER THIS AGREEMENT FSA PROVIDES THE ACCESS AND USAGE OF THE SERVICES TO CUSTOMER, ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, FSA DOES NOT WARRANT THAT THE SERVICES WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION. THE SERVICES ARE NOT INTENDED TO BE USED AS STORAGE, BACKUP OR ARCHIVING SERVICES. IT IS THE CUSTOMER’S RESPONSIBILITY TO BACK UP ITS DATA AND THE CUSTOMER IS RESPONSIBLE FOR ANY LOST OR UNRECOVERABLE DATA.
Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR FSA’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, FSA’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO FSA DURING THE 12 MONTHS PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
Indemnification
Indemnification by Customer. Customer shall defend, indemnify and hold harmless FSA and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys’ fees, arising out of or in any way connected with the allegation that the Content violates any third party right, including without limitation any intellectual property right, confidentiality, or privacy rights.
Indemnification by FSA. FSA shall defend, indemnify and hold harmless Customer and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against any claims, losses, costs, damages, fees or expenses (including reasonable legal fees and expenses) to the extent resulting from any claims, actions, suits or proceedings brought by a third party alleging that the Services infringe intellectual property rights of such third party (an “IP Claim”). If the Services become, or in FSA’s opinion is likely to become, the subject of an IP Claim, then FSA may, at its sole option and expense (a) procure for the Customer the right to continue using the Services; (b) replace or modify the Services to avoid the IP Claim; or (c) if options (a) and (b) cannot accomplished despite FSA’s reasonable efforts, then FSA may discontinue providing the Services and refund the fees for the unused portion of the subscription term. Notwithstanding the foregoing, FSA shall have no responsibility for an IP Claim resulting from or based on: (i) modifications to the Services made by a party other than FSA or its designee; (ii) combination or use of the Services with equipment, devices or software not supplied or authorized by FSA or not in accordance with the FSA’s instructions. THE FOREGOING TERMS STATE FSA’S SOLE AND EXCLUSIVE LIABILITY AND THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT.
Indemnification Procedure. As a condition to the defense set forth above, the indemnified party shall (i) give the indemnifying party prompt notice of any such claim made against it, (ii) grant the indemnifying party sole control of the defense and settlement of any such claim; and (iii) provide the indemnifying party with all reasonable information and assistance, at the indemnifying party’s expense.
Fees. In consideration for the Services, during the Initial Term (as defined below) Customer shall pay FSA a monthly subscription fee in the amount of USD 15,000 (the “Fees“) and Customer authorizes FSA to charge Customer using the selected payment method/All payments shall be made within 30 days of the invoice receipt which will be issued by FSA. Amounts that are not paid in accordance with the terms stated in this Agreement will be subject to a late charge of 1.5% per month compounded monthly, until paid in full. FSA may suspend or discontinue Customer’s access to the Services in case of Customer’s failure to pay the Fees on the date due. All payments under this Agreement are non-refundable.
Tax. All amounts payable to FSA are exclusive of all taxes, levies or similar governmental charges, however designated, except for taxes based on the net income of FSA. If under applicable law taxes are required to be withheld, Customer shall pay FSA an amount such that the net amount after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement.
Term; Termination; Survival
Term; Termination. This Agreement will remain in effect for an initial period of 12 months from the date you accessed the Services (“Initial Term”). If Customer decides to terminate this Agreement, Customer shall be obligated to pay all amount due during the Initial Term. Following the Initial Term, this Agreement shall renew automatically renew for the same subscription period at the end of the then current subscription period. To cancel such automatic renewal Customer must unsubscribe at least 30 days prior to the end of the applicable subscription period, or as otherwise stated in the online description of the Services. FSA may suspend or terminate Customer’s access to the Services immediately if Customer does not comply with the terms of this Agreement.
Consequences of Termination. Upon termination or expiration of this Agreement for any reason whatsoever Customer shall, and shall ensure any and all of its users shall: (i) immediately cease use of the Services; and (ii) at FSA’s request, certify that it has complied with the terms of this Section 16.2.
Survival. Sections 6, 7, 10, 11, 12, 13, 16 and 17 shall survive any expiration or termination of this Agreement.
Miscellaneous. Except for payment obligations under this Agreement, neither party hereto shall be liable for any loss, damage, or penalty resulting from such party’s failure to perform its obligations hereunder when such failure is due to events beyond its reasonable control, such as, without limitation, flood, earthquake, fire, acts of God, epidemic, military insurrection, civil riot, or labor strikes. This Agreement sets forth the entire understanding between the parties with respect to the subject matter herein, and supersedes all prior and contemporaneous written agreements and discussions concerning the subject matter of this Agreement. FSA may change the terms of this Agreement from time to time, and such change will become effective upon the date FSA provided you the notice. By continuing to access or use the Services, Customer agrees to be bound by the revised Agreement. Customer agrees that FSA may disclose the fact that Customer is a client of FSA and grants FSA the right to reference Customer’s company name and logo in marketing materials until Customer’s use of the Services is discontinued. The failure of either party to enforce at any time the provisions of this Agreement shall not be interpreted to be a waiver of such provisions or of the right of such party to enforce each and every such provision. This Agreement is governed by and construed in accordance with the laws of the State of Israel, without regard to the principles of conflict of laws. Any disputes arising out of or in connection with the Agreement shall be brought exclusively before the competent courts of Tel Aviv, Israel. If any provision of this Agreement is determined to be void or unenforceable by a court of competent jurisdiction, such clause shall be interpreted as necessary to give maximum force to the provisions thereof, and the validity and enforceability of the remainder of this Agreement shall not be affected. All notices given under this Agreement shall be in writing and shall be deemed to have been duly given: when delivered, if delivered by messenger during normal business hours of the recipient; when sent, if transmitted by fax or email during normal business hours of the recipient; or on the third business day following posting, if posted by international air mail. Customer may not transfer or assign its rights or obligations under this Agreement to any third party. Any purported assignment contrary to this section shall be void.
