Terms and conditions of services
Terms and conditions of services
Datumate Terms and Conditions of Service
Please read these Terms and Conditions of Service (“TOS” or “Terms” or “Agreement”) before using or accessing in any form or manner any of the services or any of the products available through or in connection with the website operated by Datumate Ltd. (the “Company”) (https://www.datumate.com/) (the “Company’s Website”) or have been otherwise made available.
These Terms shall constitute a binding agreement between the Company and its affiliates and yourself, a customer which has purchased any Products and Services from the Company, or from the Company’s resellers or distributors (“Customer“). Company and Customer shall also be referred each as a “Party” or the “Parties” as applicable.
The “Products and Services” shall mean the products and services to be provided by Company to Customer hereunder on a ‘Software-as-a-Service’ basis, as well as other related serviced as may be agreed from time to time.
Customer hereby agrees to abide, and acknowledges that it is bound, by these Terms, by either of the following: (i) executing a written order for the Services to be issued by Customer to Company, from time to time under and subject to these Terms, in a form provided by Company, setting forth the Products and Services ordered by Customer and the applicable fees therefor and other commercial terms, all subject to Company’s acceptance (“Purchase Order“) or (ii) using any of the Products and Services in any form and manner. The earliest date of the foregoing, shall be deemed as the “Effective Date”.
These Terms together with all Purchase Orders represent the Parties’ entire understanding regarding the Customer’s use of any Products and Services. In the event of a conflict or discrepancy between these Terms and a Purchase Order, other than prices, quantities and delivery schedule, the terms of this Agreement shall control and prevail.
A. Use of the Products and Services
1. Grant of a Limited Right of Use. Subject to full payment of the applicable Fees (as defined in Section 10 below) and subject to the other provisions of these Terms and Customer’s compliance therewith, Company hereby grants the Customer a limited, non-exclusive and non-transferable right, during the Subscription Term, to access, the Products and Services chosen by Customer under the applicable Purchase Order, for its internal business purposes, and to permit Authorized Users to use such Products and Services, subject to these Terms. All rights in the Products and Services not expressly granted hereunder are reserved to the Company (or its licensors as between Company and such licensors).
2. Scope of the Service. Company shall make commercially reasonable efforts to render and provide the Products and Services agreed in the Purchase Order, all in accordance with these Terms. The access and use rights granted to Customer hereunder are limited to the Products and Services chosen by Customer under the applicable Purchase Order and to retrieval of such Products and Services by Authorized Users only. Customer shall have no right pursuant to this Agreement to distribute any of the Products and Services, in whole or in part.
3. Authorized Users. Customer shall be allowed to enable access to the Products and Services only to Customer’s personnel or Customer’s affiliates’ personnel who are specifically authorized by Customer to access the Products and Services, and up to the maximum number approved by the Company in the applicable purchase Order (“Authorized Users”). With respect to Authorized Users, Customer undertakes that: (i) it will not allow or suffer that a user subscription purchased by Customer entitles a specific Authorized User to access and use the Products and Services in accordance with these Terms, to 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 Products and Services; (ii) each Authorized User shall keep a secured password for his or her use of the Products and Services; and (iii) Customer shall not knowingly allow an Authorized User to breach any terms of these Terms or of any use or service policy of Company, each as updated by Company from time to time, provided such terms and policy are shown to the Authorized User through the Company’s Website.
4. Restrictions. The 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 Products and 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, abridge, translate, or otherwise change in any manner the content of any of the Products and Services, nor shall Customer create derivative works from any of the Products and Services; (iii) 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 Products and Services to any purpose other than the purpose explicitly authorized hereunder; (iv) create Internet “links” to any of the Products and Services or “frame” or “mirror” any of the Products and Services on any other server or wireless or Internet-based device. Except to the extent explicitly permitted by Company hereunder or under a Purchase Order; (v) attempt to discover or gain access to the source code for the software underlying any of the Products and Services or reverse engineer, decode, modify, decrypt, extract, disassemble or decompile such software (including without limitation in order to (1) build a competitive product or service; (2) build a product using similar ideas, features, functions or graphics of any of the Products and Services; or (3) copy any ideas, features, functions or graphics of any of the Products and Services); (vi) 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 Products and Services (sometimes referred to as ‘virtualization’, ‘multiplexing’ or ‘pooling’) in order to circumvent any restrictions on the scope of authorized use hereunder; (vii) obscure, amend or remove any copyright notice, trademark or other proprietary marking on, or visible during the operation or use of any of the Products and Services or underlying software; (viii) attempt to gain unauthorized access to or interfere with the proper working of any of the Products and 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 Products and Services or an underlying software or any associated website, computer system, server, router or any other internet-connected device; (ix) provide false identity information to gain access to or use any of the Products and Services; (x) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Customer Data transmitted through any of the Products and Services; or (xi) use any of the Products and Services to: (1) 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 the Company’s Website, as updated by Company from time to time (“Prohibited Content“); (2) impersonate any person or entity or otherwise misrepresent the Customer’s relationship with any person or entity; (3) engage in any fraudulent activity or further any fraudulent purpose; (4) 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; (5) transmit or distribute any unsolicited or unauthorized advertising, marketing or promotional material or other form of solicitation (spam); (6) transmit or distribute any virus and/or other code that has contaminating or destructive elements; (7) otherwise engage in any unlawful activity; or (8) attempt to override or circumvent any of the usage rules embedded into any of the Products and Services.
B. Fees and Payment
6. Fees. In consideration for the rights granted herein, commencing on the Effective Date, Customer shall regularly pay Company during the Subscription Term, the fees listed in the applicable Purchase Order (the “Fees”).
7. 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 a Purchase Order. All amounts invoiced hereunder are due and payable within thirty (30) days of the date of the invoice, unless otherwise set forth in the Purchase Order.
8. Late Payments. If Company has not received payment by the applicable due date detailed under a Purchase Order, and without prejudice to any other rights and remedies of Company under these Terms or any applicable law, Company may, without liability to the Customer: (i) suspend access, including by disabling the Customer’s Account, to all or part of any of the Products and Services and Company shall be under no obligation to provide any or all of the Products and 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 Israeli law.
C. Representations and Warranties
9. Reciprocal Representations. Each of Company and Customer represents and warrants (a) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization or if Customer is a person, Customer declares he/she is over the age of 18 (eighteen); and (b) that the execution and performance of these Terms will not conflict with or violate any provision of any applicable law or an existing binding agreement, order issued by any governmental authority or regulation.
10. Company Warranties. Company warrants that the Products and Services shall, under normal operating conditions, substantially conform to the functionality described in the specification set out on the relevant product pages on the Company’s Website, as may be updated by Company from time to time.
11. Customer Representations. Customer represents and warrants that the Customer owns, or has all required rights to, the Customer Data (as defined under Section 2below) and is fully allowed to transmit the Customer Data to the Company through the Products for the provision of the Services and to grant Company 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 Company from, any and all liability arising from, the Company’s use of the Customer Data as permitted under these Terms. Customer acknowledges that the Products and Services do not operate as an archive or file storage service and Company does not store Customer Data provided, and therefore Customer is solely responsible for the backup of its Customer Data.
D. Intellectual Property
12. Definitions. Under these Terms, the following shall have the meaning ascribed to them:
12. 1 “Company Content” shall mean all data, information and material owned by Company or licensed to Company or any of its affiliates and comprised within the Products and Services, but excluding Customer Data;
12.2 “Customer Data” shall mean any and all data, information and material input or uploaded to the Products or transmitted through the Services by the Customer and/or any Authorized User;
12.3 “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).
13. Company Intellectual Property Rights. The Products, Services, all underlying software and Company Content, are copyrighted, trade secrets and confidential information of Company or its licensors and are protected by applicable copyright laws. Company and/or its licensors maintain exclusive title to all Intellectual Property Rights in The Products, Services, all underlying software, Company Content 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 Company hereunder. Further, Company is the exclusive owner of any and all Company’s brands, trademarks and logos. Except as expressly permitted hereunder, Customer may not use any of Company’s Intellectual Property Rights without Company’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 Company Intellectual Property Rights other than as expressly granted herein. The Customer shall promptly bring to the attention of Company any improper or wrongful use of any Intellectual Property Rights of Company which comes to the Customer’s attention. The Customer shall reasonably assist Company (at Company’s expense subject to the terms herein) in taking all steps to defend Company’s Intellectual Property Rights.
15. Customer acknowledges that in order to provide the Services, Company may transform Customer Data to anonymized aggregated information. All anonymized aggregated information shall not be considered as Customer Data and all rights to this data shall vest with Company, provided that Company may not use such anonymized aggregated data in a manner that links any person or the Customer to such anonymized aggregated information without Customer’s prior written approval.
16. Feedback. Company may, at its discretion and for any purpose, freely use, modify, and incorporate into the Products and Services any feedback, comments, or suggestions Customer or Authorized Users (other than Customer Data), provided to Company (if any), without any additional obligation to Customer or Authorized Users.
17. The provisions of this Section shall survive the termination or expiration of this Agreement.
18. Company Infringement Indemnity.
18.1 Company shall indemnify, defend and hold the Customer harmless from and against damages finally awarded against the Customer by a court of competent jurisdiction and/or amounts paid by the Customer further to a final settlement approved by Company in writing, as a result of any claim by a third party that the Products and Services infringe the Intellectual Property Rights of any third party (“Infringement Claim”), subject to the terms herein. Notwithstanding the foregoing, in no event will Company have any obligation or liability under this Section 1arising from: (i) use of any Products and Services in a modified form or in combination with materials not furnished by Company or not in accordance with these Terms; (ii) any Customer Data; and (iv) provisions of Services pursuant to Customer’s instruction.
18.2 If the Customer’s access or use, in accordance with these Terms, of the Products and Services is, or in Company’s reasonable opinion is likely to become, the subject of an Infringement Claim for which Company is obliged to indemnify the Customer pursuant to these Terms, then Company shall, at its sole option, and at its expense, make reasonable efforts, as soon as reasonably possible to: (i) procure for the Customer the continuing right to access and use of the Products and Services (as applicable), in accordance these Terms, without infringement; or (ii) replace or modify the Products and Services (as applicable) with software and/or services of substantially equivalent specification so as to avoid the infringement; (iii) refund the actual pro-rata amount paid by Customer to Company for services not actually rendered due to such infringement.
18.3 Company’s obligations under this Section 18 are its sole and exclusive liability and Customer’s sole and exclusive remedies, with respect to any Infringement Claim.
19. Customer Infringement Indemnity. The Customer shall indemnify, defend and hold Company harmless from and against any and all losses or damages (including legal fees) that Company incurs or suffers however arising as a result of or in connection with: (i) any Customer Data or Company’s receipt, possession and/or use thereof, (ii) any claim by a third party, including any Authorized User, as a result of the Customer’s illegal or unauthorized use of the Products or Services or not in accordance with these Terms.
20. Indemnity Proceedings. Wherever a Party hereto is entitled to indemnity pursuant to this Section E from the other Party (“Indemnified Party” and “Indemnifying Party“, respectively), such indemnity shall be conditional upon the Indemnified Party: (i) promptly notifying the Indemnifying Party in writing of any claim in respect of which it is entitled to indemnity hereunder; (ii) not admitting any liability or agreeing to any settlement or compromise of a claim without the prior written consent of the Indemnifying Party; (iii) providing the Indemnifying Party all reasonable information and assistance to settle or defend the claim; and (iv) granting the Indemnifying Party sole authority and control of the defense or settlement of the claim; provided that the Indemnified Part shall have the right to participate in the defense of such claim with counsel of its choice, at its own expense.
F. Limitation Of Liability; Disclaimer of Warranties
21. TO THE EXTENT PERMITTED BY APPLICABLE LAW, OTHER THAN AS EXPLICITLY STATED UNDER THIS AGREEMENT, THE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS. COMPANY DOES NOT WARRANT THAT THE PRODUCTS AND/OR THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE PRODUCTS AND SERVICES OPERATION WILL BE SECURED AT ALL TIMES, UNINTERRUPTED, ERROR-FREE, FREE OF VIRUSES, BUGS, WORMS, OTHER HARMFUL COMPONENTS OR OTHER PRODUCTS AND SERVICES LIMITATIONS. TO THE EXTENT ALLOWED BY APPLICABLE LAW, EXCEPT FOR WARRANTIES EXPLICITLY PROVIDED UNDER THESE TERMS, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY OF THE PRODUCTS AND/OR THE SERVICES, RELIABILITY, SYSTEM INTEGRATION, NON-INTERFERENCE, AND/OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT OFFER ANY WARRANTY OR MAKES ANY REPRESENTATION REGARDING ANY CONTENT, REPORTS, INFORMATION, OR RESULTS THAT CUSTOMER OBTAINS THROUGH USE OF THE PRODUCTS AND SERVICES (COLLECTIVELY, “REPORTS”), OR THAT THE REPORTS ARE COMPLETE OR ERROR FREE. COMPANY 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 COMPANY’S WILFUL MISCONDUCT OR GROSS NEGLIGENCE.
22. NEITHER COMPANY, 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 PRODUCTS AND/OR 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 COMPANY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED, IN THE AGGREGATE, THE LESSER OF: (I) THE TOTAL AMOUNTS ACTUALLY PAID TO COMPANY UNDER THE APPLICABLE PURCHASE ORDER IN THE TWELVE (12) MONTHS PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, OR (II) $100,000. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN THE COMPANY’S AGGREGATE LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.
G. Changes to Products and Service
23. Company may from time to time change the layout, design, form, features or nature of any of the Products and Services or the availability of the content and functions included therein. Customer hereby agrees and acknowledges that Company shall not be liable for any errors or malfunctions that may occur in connection with the performance of such changes.
H. Term and Termination
24. Term. This Agreement shall become effective on the Effective Date and unless terminated earlier in accordance herewith, shall continue for a period of 12 months thereafter (“Initial Term”). The Initial Term shall be automatically renewed for additional periods of 12 months (the “Renewed Term(s)”, and together with the Initial Term, the “Subscription Term”), unless either Party notifies the other in writing, at least 30 (thirty) days prior to the end of the Initial Term or any Renewed Term, of its decision not to renew this Agreement as aforesaid .
25. Termination. Without derogating from any other provision herein, these Terms may be terminated by either Party: (i) if the other Party commits a material breach of any provision of these Terms or a Purchase Order and fails to remedy such breach within fifteen (15) days of receiving written notice thereof by the non-breaching Party; or (ii) if a receiver is appointed over any assets of the other Party or if the other Party makes any arrangement with its creditors or becomes subject to an administration order or goes into liquidation or anything equivalent to the foregoing under any jurisdiction or ceases to carry on business. In addition, Company may, without liability, terminate these Terms and any Purchase Order with an immediate effect, or alternatively, suspend access to and use of the Products and Services, by giving the Customer written notice, in the event of: (i) late payment, as described in Section 8 above; or (ii) breach by Customer or an Authorized User of any provision of Section A above, or (iii) if Company reasonably believes that Customer is using the Products and Services in a manner that may cause harm to Company or any third party. Any suspension by Company of access to and use of the Products and Services pursuant to this Section 25 shall not excuse Customer from its obligation to make payments under these Terms and any Purchase Order related thereto. In addition, Company may terminate any engagement with the Customer upon 60 (sixty) days prior written notice unless agreed otherwise under a Purchase Order.
26. Effect of Termination. Upon expiry or termination of these Terms for any reason whatsoever: (i) the Customer and all Authorized Users shall immediately cease to access, and discontinue all use of, the Products and Services and all rights granted to Customer and all Authorized Users herein shall expire; (ii) all pending amounts to Company 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.
I. Data Security
27. Data Security. The Parties shall comply with all applicable laws and regulations pertaining to data security and privacy. Company shall use reasonable measures to protect Customer Data, which shall however be at least compliant with ISO 27001:2013 and Soc2. Customer warrants that such data shall have been obtained and shall be provided or made available to Company 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 Company to provide the Service and perform its obligations hereunder.
J. Governing Law and Jurisdiction
29. 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. Notwithstanding the aforementioned, a Party will be entitled, in addition to any other rights available under this Agreement or at law or in equity, to apply for immediate injunctive relief in order to protect its Intellectual Property Rights, in any jurisdiction it deems fit and without any requirement to prove damages.
30. Any notices or communications under these Terms to Customer will be addressed to the electronic addresses specified in the Purchase Order, as may be updated from time to time, and will be deemed delivered immediately upon sending in the case of electronic mail and three days after mailing in the case of standard written mail. Either Party’s failure to exercise or enforce any right or provision of these Terms or a Purchase Order will not constitute a waiver of such right or provision. If any provision of these Terms or a Purchase Order is found by a court of competent jurisdiction to be invalid, the Parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and agree that the other provisions of these Terms or a Purchase Order remain in full force and effect. Neither party will be liable to the other for any delay or failure in performance under these Terms or a Purchase Order (other than failure to pay any amounts due) resulting directly or indirectly from acts of nature or causes beyond its reasonable control (Force Major). On performance of these Terms and any Purchase Order Company and Customer are acting as independent contractors. No Party is an agent of the other Party. This Agreement does not establish a joint venture, partnership, agency or employment relationship. No Party has any right or authority to create any obligation, representation, or responsibility on behalf of the other Parties. No third party is a beneficiary of this Agreement. Customer shall not sub-license or assign, sub-contract, or delegate any or all of its rights or its obligations under this Agreement without the prior written consent of the Company. Company may assign, sub-contract, or delegate any of its rights or its obligations under this Agreement, as long as the rights of Customer under this Agreement shall not be materially prejudiced.