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    DATUMATE TERMS AND CONDITIONS OF SERVICE

    IMPORTANT, READ CAREFULLY:  THE USE OF AND ACCESS TO THE DATUBIM PLATFORM (AND ANY ASSOCIATED SOFTWARE) AND PRODUCTS AND SERVICES DESCRIBED ON CUSTOMER’S ORDER FORM(S) (THE “ORDER FORM” AND COLLECTIVELY, THE “SERVICES”) PROVIDED BY DATUMATE LTD. AND ITS AFFILIATES (“DATUMATE” OR “COMPANY”) IS CONDITIONED UPON  COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS AND CONDITIONS, INCLUDING USE IN ACCORDANCE WITH THE CURRENT VERSION OF ANY SUPPORTING TECHNICAL DOCUMENTATION PROVIDED BY DATUMATE OR AVAILABLE ON DATUMATE’S WEBSITE (HTTPS://WWW.DATUMATE.COM/).

    THESE TERMS AND CONDITIONS AND ALL ORDER FORMS AND POLICIES INCORPORATED HEREIN BY REFERENCE (THE ”TERMS” OR THE “AGREEMENT”) SHALL CONSTITUTE A BINDING AGREEMENT BETWEEN DATUMATE  AND YOURSELF, A CUSTOMER WHICH HAS LICENSED ANY SERVICES FROM DATUMATE, OR FROM THE DATUMATE’S RESELLERS OR DISTRIBUTORS (“CUSTOMER“). BY PURCHASING, USING, OR OTHERWISE ACCESSING ANY OF THE SERVICES, CUSTOMER EXPRESSLY AGREES TO BE BOUND BY THESE TERMS. THE SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS. DATUMATE AND CUSTOMER SHALL ALSO BE REFERRED EACH AS A “PARTY” OR THE “PARTIES” AS APPLICABLE.

    Customer hereby agrees to abide, and acknowledges that it is bound, by these Terms, by either of the following: (i) by executing a written order for the Services to be issued by Customer to Datumate, from time to time under and subject to these Terms, in a form provided by Datumate, setting forth the Services ordered by Customer and the applicable fees thereof and any additional terms, all subject to Datumate’s acceptance (“Order Form“) or (ii) by using any of the Services in any form and manner. The earliest date of the foregoing shall be deemed as the “Effective Date”.

    These Terms together with all Order Forms represent the Parties’ entire understanding regarding the Customer’s use of any Services. Unless explicitly stated otherwise in an applicable Order Form properly executed by both Parties, In the event of a conflict or discrepancy between these Terms and an Order Form, the terms of this Agreement shall prevail.

    1. USE OF THE SERVICES
      • Datumate will make the Services available to Customer pursuant to this Agreement and the applicable Order Form and then-current version of any supporting technical documentation provided to Customer by Datumate or available on Datumate’s website (“Documentation”) and subject to payment in full of all applicable Fees (as defined in Section ‎3 below). Datumate hereby grants to Customer a limited, non-exclusive, non-transferable, worldwide right during the subscription term to access and use the Services solely for Customer’s internal business purposes and pursuant to the Documentation, including any restrictions designated on an applicable Order Form. All rights in the Services not expressly granted hereunder are reserved to Datumate (or its licensors as between Datumate and such licensors).
      • Affiliate Access and Use.“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
      • Access Through Customer.Customer may, at its option, provide access and use rights to the Services to one or more Customer Affiliates, subject to all terms in this Agreement. If Customer provides such access and use rights, Customer will be wholly responsible for the acts and omissions of the Customer Affiliate. No Customer Affiliate shall have the right to take any legal action against Datumate under this Agreement or any Order Form hereunder who has not entered into a direct Order Form with Datumate under Section ‎4 (Separate Affiliate Ordering) below.
      • Separate Affiliate Ordering.Subject to the parties executing a mutually agreed upon Order Form, Customer Affiliates may license the Services, by executing an Order Form that references this Agreement directly with Datumate, which will establish a new and separate agreement between the Customer Affiliate and Datumate.
      • Authorized Users. Customer shall be allowed to enable access to the Services only to Customer’s personnel or Customer’s affiliates’ personnel who are specifically authorized by Customer to access the Services. Customer may provide users with user IDs and passwords to access and use the Services up to the maximum number specified by Datumate in the applicable Order Form (“Authorized Users”). Customer hereby acknowledges and agrees that the user IDs and passwords are for each user’s personal use and shall not be transferred, any such transfer shall be strictly prohibited and may subject Customer to additional fees. Customer shall not allow or facilitate the use of any user ID or password by multiple users. Services shall not be used by any other individual other than the Authorized User unless it has been reassigned in its entirety to another individual Authorized User (in which case the prior Authorized User shall no longer have any right to access or use the Services). Customer shall use commercially reasonable efforts to ensure that each Authorized User shall keep a secured password for his or her use of the Services.
      • Customer Responsibilities.Customer will (a) be responsible for Authorized Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data (as defined in Section ‎2 herein), the means by which Customer acquired Customer Data, and Customer’s use of Customer Data with the Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Datumate promptly of any such unauthorized access or use, (d) use Services only in accordance with this Agreement, Documentation, Order Forms and applicable laws and (e) comply with terms of service of any third-party applications with which Customer elects to use with the Services. Any use of the Services in breach of the foregoing by Customer or Authorized Users that in Datumate’s judgment threatens the security, integrity or availability of the Services, may result in Datumate’s immediate suspension of the Services, however Datumate will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
      • Use Restrictions.  Customer shall not and shall cause all Authorized Users not to: (i) except as may be expressly permitted by these Terms, permit any third party to access or use of any of the Services or use the same on behalf of any third party (which includes operating any form of facility on behalf of any third party or operating a software bureau or similar service); (ii) modify, adapt, edit, alter, translate, or otherwise change in any manner the content of any of the Services; (iii) create derivative works from any of the Services; (iv) copy (other than one back-up copy to be kept indefinitely pursuant to these Terms), distribute, publicly display, transmit, sell, rent, lease, sublicense, loan (or grant any third party access to or use of) or otherwise exploit any of the Services to any purpose other than the purpose explicitly authorized hereunder; (v) create Internet “links” to any of the Services or “frame” or “mirror” any of the Services on any other server or wireless or Internet-based device. Except to the extent explicitly permitted by Datumate hereunder or under an Order Form; (vi) attempt to discover or gain access to the source code for the software underlying any of the Services or reverse engineer, decode, modify, decrypt, extract, disassemble or decompile such software (including without limitation in order to (a) build a competitive product or service; (b) build a product using similar ideas, features, functions or graphics of any of the Services; or (c) copy any ideas, features, functions or graphics of any of the Services); (vii) employ any hardware, software, device or technique to pool connections or reduce the number of devices or users that directly access or use any of the Services (sometimes referred to as ‘virtualization’, ‘multiplexing’ or ‘pooling’) in order to circumvent any restrictions on the scope of authorized use hereunder; (viii) obscure, amend or remove any copyright notice, trademark or other proprietary marking on, or visible during the operation or use of any of the Services or underlying software; (ix) attempt to gain unauthorized access to or interfere with the proper working of any of the Services or an underlying software and, in particular, must not attempt to circumvent security, license control or other protection mechanisms, or tamper with, hack into or otherwise disrupt any of the Services or an underlying software or any associated website, computer system, server, router or any other internet-connected device; (x) provide false identity information to gain access to or use any of the Services; (xi) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Customer Data transmitted through any of the Services; or (xii) use any of the Services to: (a) upload, store, post, transmit, distribute, link to or otherwise make available, or advertise or promote any content that infringes any Intellectual Property Rights or data protection, privacy or other rights of any other person, is defamatory or in breach of any contractual duty or any obligation of confidence, is obscene, sexually explicit, threatening, abusive, harassing, inciteful of violence or hatred, blasphemous, discriminatory (on any ground), liable to cause anxiety, alarm or embarrassment, knowingly false or misleading, or that does not comply with all applicable laws and regulations or is otherwise objectionable or prohibited as set out in any acceptable use policy published online through Datumate’s Website, as updated by Datumate from time to time (“Prohibited Content“); (b) impersonate any person or entity or otherwise misrepresent the Customer’s relationship with any person or entity; (c) engage in any fraudulent activity or further any fraudulent purpose; (d) provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the government of Israel or the United Stated as a foreign terrorist organization; (e) transmit or distribute any unsolicited or unauthorized advertising, marketing or promotional material or other form of solicitation (spam); (f) transmit or distribute any virus and/or other code that has contaminating or destructive elements; (g) otherwise engage in any unlawful activity; or (8) attempt to override or circumvent any of the usage rules embedded into any of the Services.
      • Datumate uses commercially reasonable efforts to maintain the highest service availability. However, Datumate cannot guarantee that the Services will operate in an uninterrupted or error-free manner. Datumate performs service maintenance and uses commercially reasonable efforts to schedule system downtime during off-peak hours and to avoid service interruptions and delays. Datumate will use commercially reasonable efforts to notify Customer in advance of any scheduled downtime.
      • Evaluation Services. Datumate may offer the Services to Customer on an evaluation basis (“Evaluation Services”) until the earlier of (i) the end of the applicable evaluation period as determined between the Parties, (ii) the start date of any subscription to the Services that Customer licenses pursuant to an Order Form, or (iii) any termination of the evaluation by Datumate for any reason, or for no reason at all, by sending Customer a termination notice with immediate effect. THE EVALUATION SERVICES ARE PROVIDED “AS IS” FOR LIMITED EVALUATION PURPOSES ONLY.

     

    1. PROPRIETARY RIGHTS AND INTELLECTUAL PROPERTY
      • Reservation of Rights. Subject to the limited rights expressly granted hereunder, Datumate and its Affiliates and licensors reserve all of their right, title and interest in and to the Services, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
      • Customer Data; License by Customer to Datumate.“Customer Data” means electronic data and information (including data sets, compilations, or aggregations of the foregoing) submitted by or for Customer to the Services or collected and processed by or for Customer using the Services and excluding Aggregated Data. Customer grants Datumate a non-exclusive, worldwide, limited term, royalty-free right to host, use, copy, transmit and display Customer Data as appropriate for Datumate to provide and ensure proper operation of the Services in accordance with this Agreement and in accordance with Datumate’s privacy policy available on Datumate’s Website, as may be updated from time to time, including to provide insights, recommendations and value analysis to optimize Customer’s use of the Services. Subject to the limited licenses granted herein, Datumate acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data. The foregoing license will automatically terminate upon termination of this Agreement.
      • Company Data; Intellectual Property Rights.“Intellectual Property Rights” shall mean unpatented inventions, patent applications, patents, patentable rights, copyright, design rights, utility models, trademarks (whether or not any of the above are registered), trade names, rights in domain names, service marks, mask work rights, rights in inventions, rights in data, database rights, rights in know-how, and other trade secret rights and confidential information, including the goodwill connected with the use of and symbolized by the foregoing, and any and all other intellectual and industrial property, derivatives thereof, and similar or analogous rights existing under the laws of any country and all pending applications for and right to apply for or register the same (present, future and contingent, and including all renewals, extensions, revivals and all accrued rights of action and retain damages, costs and attorneys’ fees).

    “Company Data” shall mean all data, information and material owned by Datumate or licensed to Datumate or any of its affiliates and comprised within the Services, but excluding Customer Data;

    The Services, all underlying software and Company Data, are copyrighted, trade secrets and confidential information of Datumate or its licensors and are protected by applicable copyright laws. Datumate and/or its licensors maintain exclusive title to all Intellectual Property Rights in The Services, all underlying software, Company Data and all copies thereof, including any and all modifications, improvements, derivatives and/or enhancements to any and all of the foregoing, and all specifications, designs, programs and utilities provided by Datumate hereunder. Further, Datumate is the exclusive owner of any and all Datumate’s brands, trademarks and logos. Except as expressly permitted hereunder, Customer may not use any of Datumate’s Intellectual Property Rights without Datumate’s prior written consent. Nothing hereunder shall cause the ownership of any Intellectual Property Rights belonging to one Party to be transferred to the other and in no event shall the rights granted hereunder be construed as granting Customer expressly or by implication, estoppel or otherwise, a right or license to any of Datumate’s Intellectual Property Rights other than as expressly granted herein. Customer shall promptly bring to the attention of Datumate any improper or wrongful use of any Intellectual Property Rights of Datumate which comes to the Customer’s attention. Customer shall reasonably assist Datumate (at Datumate’s expense subject to the terms herein) in taking all steps to defend Datumate’s Intellectual Property Rights.

    • Anonymized Aggregated Information. “”Aggregated Data” means data and information related to Customer’s use of the Services that is used by Datumate in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.

    Notwithstanding anything to the contrary in these Terms, Customer acknowledges that in order to provide the Services, Datumate may monitor Customer’s use of the Services and collect and compile Aggregated Data. As between Provider and Customer, all right, title, and interest in Aggregated Data, and all intellectual property rights therein, belong to and are retained solely by Datumate. Customer acknowledges that Datumate may compile Aggregated Data based on Customer Data input into the Services. Customer agrees that Datumate may (i) make Aggregated Data publicly available in compliance with applicable law, and (ii) use Aggregated Data to the extent and in the manner permitted under applicable law; provided that such Aggregated Data do not identify Customer or Customer’s Confidential Information

    • Feedback. Datumate may, at its discretion and for any purpose, freely use, modify, and incorporate into the Services any feedback, comments, or suggestions Customer or Authorized Users (other than Customer Data), provided to Datumate (if any), without any additional obligation to Customer or Authorized Users.
    • Survival. The provisions of this Section shall survive the termination or expiration of this Agreement.

     

    1. SUBSCRIPTIONS; TERM; FEES AND PAYMENT
      • Unless otherwise provided in the applicable Order Form or Documentation, the Services are purchased as subscriptions for the term stated in the applicable Order Form. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Datumate regarding future functionality or features.
      • Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
      • Term of Subscriptions.The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional one-year periods unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Datumate’s applicable list price in effect at the time of the applicable renewal. The base calculation of charges for the Services shall increase with effect from the start of each renewal term by 5%. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing. any other price changes or adjustments will be as set out in the Order Form.
      • Fees and Payment. In consideration for the rights granted herein, commencing on the Effective Date, Customer shall pay Datumate the fees listed in the applicable Order Form (the “Fees”). All fees are as set forth on the Order Form and shall be paid by Customer within 30 days of the effective date of the Order Form, unless otherwise specified on such Order Form. Payment obligations are non-cancelable, and fees are non-refundable.
      • Taxes. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties. Customer shall pay all Fees in U.S. Dollars or in such other currency as agreed to under the applicable Order Form.
      • Late Payments; Suspension of Services. If Datumate has not received payment by the applicable due date detailed under an Order Form, and without prejudice to any other rights and remedies of Datumate under these Terms or any applicable law, Datumate may, without liability to the Customer, suspend access, including by disabling the Customer’s Account, to all or part of any of the Services and Datumate shall be under no obligation to provide any or all of the Services while such invoice(s) concerned remain unpaid. All late payments shall incur interest from the day on which such Fees were due until their actual payment, at the higher rate of (i) 5% per month, or (ii) the maximum legal rate permissible under applicable law.
    2. CONFIDENTIAL INFORMATION
      • Each party hereto acknowledges that the Confidential Information of the disclosing party constitutes valuable confidential and proprietary information. Each party will (i) hold the Confidential Information of the other party in confidence, (ii) not disclose to any other person or use such Confidential Information or any part thereof, except in connection with the limited purpose of performing its obligations pursuant to the terms of this Agreement and except if compelled to do so under applicable law and has delivered a written notice to that effect to the disclosing party and taken all reasonable steps to avoid the disclosure of such Confidential Information, and (iii) use at least the same degree of care with respect to the other party’s Confidential Information as it uses to avoid the unauthorized use, disclosure or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care. Each party will disclose the other party’s Confidential Information, to the extent such disclosure is permitted under the terms of this Agreement, to its employees and agents on a “need to know” basis; provided in each case that such employees and agents are bound by confidentiality obligations similar to those in this Agreement.

    “Confidential Information” means any proprietary information, trade secret and other information, which is disclosed by a party to the other party, whether tangible or intangible, including, but not limited to, the terms of this Agreement and information relating to the Services, technical and financial information and any improvements, enhancements, product specifications and plans, technical data, know-how, show-how, techniques, algorithms, routines, compositions, processes, formulas, methods, designs, design rules, drawings, flow charts, samples, inventions (whether reduced to practice or not), discoveries, concepts, ideas, past, current and planned research, development or experimental work, hardware, software (object code and source code), databases, systems, structures, architectures, current and planned distribution methods and processes, customer lists, current and anticipated customer requirements, price lists and market studies, provided that it is identified as confidential at the time of disclosure or should be reasonably known by the receiving party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Confidential Information does not include information which (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.

    1. REPRESENTATIONS AND WARRANTIES
      • Reciprocal Representations. Each of Datumate and Customer represents and warrants that: (a) it has the full corporate right, power and authority to enter into, and perform its obligations under, this Agreement; (b) the execution of this Agreement, and the performance of its obligations herein, does not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes its legal, valid and binding obligation..
      • Datumate Warranties. Datumate warrants that during an applicable subscription term (a) this Agreement, the Order Forms and the Documentation will accurately describe the applicable security measures for protection of the security, confidentiality and integrity of Customer Data, in all material respects, (b) Datumate will not materially decrease the overall security of the Services, (c) the Services will perform in accordance with the applicable Documentation, in all material respects, and (d) Datumate will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in termination and refund of payment provisions in Section ‎2.
      • Customer Representations. Customer represents and warrants that the Customer owns, or has all required rights to, the Customer Data (as defined under Section ‎‎3 below) and is fully allowed to transmit the Customer Data to Datumate for the provision of the Services and to grant Datumate all rights granted in relation to the Customer Data under these Terms. Customer shall remain solely responsible and liable for, and shall release and indemnify Datumate from, any and all liability arising from, the Datumate’s use of the Customer Data as permitted under these Terms. Customer acknowledges that the Services do not operate as an archive or file storage service and Datumate does not store Customer Data provided, and therefore Customer is solely responsible for the backup of its Customer Data.
      • EXCEPT AS EXPRESSLY PROVIDED ABOVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, DATUMATE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE ABOVE, DATUMATE MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO (I) THE SERVICES MEETING CUSTOMER’S REQUIREMENTS, OR BEING UNINTERRUPTED, CONTINUOUS, TIMELY, OR ERROR OR VIRUS FREE; (II) WHETHER CUSTOMER’S USE OF THE SERVICES OR CUSTOMER DATA WILL GENERATE ANY RESULTS OR CONSEQUENCES; OR (III) WHETHER CUSTOMER’S USE OF THE SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION. DATUMATE DOES NOT OFFER ANY WARRANTY OR MAKES ANY REPRESENTATION REGARDING ANY CONTENT, REPORTS, INFORMATION, OR RESULTS THAT CUSTOMER OBTAINS THROUGH USE OF THE SERVICES (COLLECTIVELY, “REPORTS”), OR THAT THE REPORTS ARE COMPLETE OR ERROR FREE. DATUMATE SHALL NOT BE RESPONSIBLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION TO THE CUSTOMER DATA TO THE EXTENT THAT SUCH ACCESS OR ALTERATION IS NOT DUE TO DATUMATE’S WILFUL MISCONDUCT OR GROSS NEGLIGENCE.
    2. INDEMNIFICATION
      • Datumate Indemnification. Datumate shall (a) defend Customer and its shareholders, directors, officers, employees, successors and assigns (collectively, the “Customer Indemnitees”) from and against any claim by a third party alleging that the technology underlying the Services, when used as authorized under this Agreement, directly infringes such third party’s copyright, U.S. patent, or trademark and (b) in relation to such claim, indemnify and hold harmless the Customer Indemnitees from any damages and costs finally awarded or agreed to in settlement by Datumate (including reasonable attorneys’ fees). If Customer’s use of the Services is, or in Datumate’s opinion is likely to be, enjoined due to the type of infringement specified above, if required by settlement, or if Datumate determines such actions are reasonably necessary to avoid material liability, Datumate may, in its sole discretion: (i) substitute substantially functionally similar products or services; (ii) procure for Customer the right to continue using the Services; or if (i) and (ii) are not commercially reasonable, (iii) terminate the Agreement and refund to Customer the fees paid by Customer for the portion of the subscription term which was paid by Customer but not rendered by Datumate. The foregoing indemnification obligation of Datumate shall not apply: (1) if the Services are modified by any party other than Datumate, but solely to the extent the alleged infringement is caused by such modification; (2) the Services are combined with other services or processes not authorized by Datumate, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Services; (4) to any action arising as a result of Customer Data or any third-party components contained within or operating with the Services; or (5) if Customer settles or makes any admissions with respect to a claim without Datumate’s prior written consent.
      • Sole Remedy. THIS SECTION ‎6 SETS FORTH CUSTOMER’S SOLE REMEDIES AND DATUMATE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
      • Customer Indemnification. Customer shall (a) defend Datumate and its shareholders, directors, officers, employees, successors and assigns (collectively, the “Datumate Indemnitees”) from and against any claim by a third party alleging that the Customer Data, or Customer’s use of the Services in breach of this Agreement infringes or misappropriates such third party’s intellectual property rights or violates applicable laws, and (b) in relation to such claim, indemnify and hold harmless the Datumate Indemnitees from any damages and costs finally awarded or agreed to in settlement by Customer (including reasonable attorneys’ fees).
      • Indemnification Procedures. The obligations of each indemnifying party are conditioned upon receiving from the party seeking indemnification: (i) prompt written notice of the claim (but in any event notice in sufficient time for the indemnifying party to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (except that the indemnifying party may not settle any claim unless it unconditionally releases indemnified party of all liability) of such claim; and (iii) all reasonable assistance of the indemnified party, at indemnifying party’s expense.
    3. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES
      • NEITHER DATUMATE, ITS LICENSORS, AFFILIATES, DISTRIBUTORS OR RESELLERS SHALL BE LIABLE WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, TO CUSTOMER OR ANY THIRD PARTY (INCLUDING THE CUSTOMER’S AUTHORIZED USERS) FOR ANY LOSS OR DAMAGE, INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (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, RELATED OR CONNECTED TO, ANY USE OF OR INABILITY TO USE THE THE SERVICES, EVEN IF A PARTY HAS BEEN ADVISED OF POSSIBILITY OF SUCH DAMAGES. OTHER THAN IN EVENTS OF WILFUL MISCONDUCT, IN NO EVENT SHALL DATUMATE’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED, IN THE AGGREGATE, THE LESSER OF: (I) THE TOTAL AMOUNTS ACTUALLY PAID TO DATUMATE UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTHS PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, OR (II) $10,000. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN DATUMATE’S AGGREGATE LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.
    4. DATA SECURITY
      • Data Security. The Parties shall comply with all applicable laws and regulations pertaining to data security and privacy. Datumate shall use commercially reasonable measures to protect Customer Data, which shall however be at least compliant with Soc2. Customer warrants that such data shall have been obtained and shall be provided or made available to Datumate in compliance with all applicable laws and regulations, including by obtaining all necessary consents (as applicable) from data subjects whose data is provided or made available giving consent, as may be necessary to permit Datumate to provide the Service and perform its obligations hereunder.
      • Data Maintenance and Backup Procedures. In the event of any loss or corruption of Customer Data, Datumate shall use its commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by Datumate. Datumate shall not be responsible for any loss or corruption of Customer Data caused by Customer or any third party.
    5. CHANGES TO SERVICE
      • Datumate may from time to time change the layout, design, form, features or nature of any of the Services or the availability of the content and functions included therein. Customer hereby agrees and acknowledges that Datumate shall not be liable for any errors or malfunctions that may occur in connection with the performance of such changes.
    6. TERMINATION
      • Either party may terminate this Agreement if the other party materially breaches its obligations hereunder, which default is incapable of cure or which, being capable of cure, has not been cured within 30 days after receipt of written notice from the non-defaulting party.
      • Refund or Payment upon Termination.If this Agreement is terminated by Customer in accordance with Section 9.1 above, Datumate will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Datumate in accordance with Section 9.1 above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to Datumate for the period prior to the effective date of termination.
      • Surviving Provisions. The sections titled “Evaluation Services,” “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Indemnification,” “Limitation of Remedies and Damages,” “Termination,” “Surviving Provisions” and “General” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as Datumate retains possession of Customer Data.
      • Effect of Termination. Upon expiry or termination of these Terms for any reason whatsoever: (i) Customer and all Authorized Users shall immediately cease to access, and discontinue all use of, the Services and all rights granted to Customer and all Authorized Users herein shall expire; (ii) all pending amounts to Datumate by the Customer shall become immediately due and payable; (iii) any accrued rights or liabilities which either Party may have by the effective termination date shall remain unaffected; and (iv) provisions contained in these Terms that are expressed or by their sense and context are intended to survive the termination or expiry of these Terms shall so survive such termination or expiry.
    7. INJUNCTIVE RELIEF
      • Customer acknowledges that any use of the Services contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Services, may cause irreparable injury to Datumate, its affiliates, suppliers and any other party authorized by Datumate to resell, distribute, or promote the Services (“Partners”), and, under such circumstances Datumate, its affiliates, suppliers and Partners will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
    8. GENERAL PROVISIONS
      • This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, Datumate will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
      • If any provision of this Agreement is adjudged by a court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
      • Governing Law; Jurisdiction and Venue. This Agreement and the relationship between the Parties shall be governed by the laws of the State of Israel without regard to its conflict of law provisions. Any dispute or claim arising out of or in connection with this Agreement will be submitted to the exclusive jurisdiction of the competent courts in Tel Aviv, Israel.
      • Customer grants Datumate the right to use its company name and logo as a reference for marketing or promotional purposes on Datumate’s website and in other public or private communications or disclosures with its existing or potential customers and investors, subject to Customer’s standard trademark usage guidelines as provided to Datumate from time to time. Customer may send an email to Datumate if it does not wish to be used for marketing or promotional purposes.
      • All notices shall be valid if sent by written communication (including email) to each of the Parties’ e-mail addresses or physical addresses provided in the Order Form, if sent by first class mail or pre-paid post, or to the most recent address provided by each Party to the other Party.
      • Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any order form or other business form employed by Customer, including any electronic invoicing portals and vendor registration processes, will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
      • Entire Agreement. This Agreement (including any applicable Order Form and any mutually agreed exhibits or attachments) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
      • Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
      • Third Party Beneficiaries. No third party is intended to be a beneficiary of this Agreement entitled to enforce its terms directly.
      • Independent Contractors.The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.