These Terms and Conditions (the “T&C”) and together with any Order Form, MSA, or related agreement (the “Order Form”) to which they are attached (together, the “Agreement”) govern the rights and obligations related to the use of the Datagen Platform (the “Platform”), any deliverable generated by Customer’s use of the Platform, and all other related products and offerings (together, the “Services”), by and between Datagen Technologies Ltd. (the “Company”) and any user of the Services, including their employees, representatives, agents, assignees, third-party subcontractors, and other beneficiaries of the Services (the “Customer”) .
In the case of conflict within the Agreement between the Order Form and the T&C, the Order Form shall govern. Any capitalized terms not defined herein shall have the meaning set forth in the Agreement.
PLEASE CAREFULLY REVIEW THESE T&Cs THAT GOVERN YOUR USE OF THE SERVICES, AS YOUR ACCESS TO THE SERVICES IS CONDITIONED UPON YOUR ACCEPTANCE OF THESE T&Cs AND YOUR AGREEMENT TO BE BOUND BY THEM. BY PURCHASING, USING, OR OTHERWISE ACCESSING ANY OF THE SERVICES YOU AGREE TO BE BOUND BY THE AGREEMENT.
1. Services and License
(A) Subject to Customer’s compliance with the T&C and any relevant Order Form, the Company shall provide the Customer: (i) access to, and the right to use, the Services via password-protected online access by the Customer and (ii) a non-exclusive, non-transferable, non-sublicensable license to use the Renders generated through the Services (the “License”).
(B) The Company may change or discontinue the Services or provide new, additional, or replacement Services. In any such case, the Customer will receive a written notification. In the event of a material change to the scope of the Services, the Customer may, within thirty (30) days of receipt of the notification of change, elect to terminate the Agreement by providing a written notice to the Company and will be entitled to a refund equivalent to the value of any unused DGU Hours purchased in advance, not including the value of those DGU Hours given as bonus in exchange for advance purchase. Unless the Customer provides written notice of its rejection within the said thirty (30) days, the new Services will promptly take effect and will be deemed as the Services for all intents and purposes under the Agreement.
2. Consideration and Payment Terms
(A) In consideration for the Services and for the License, the Customer shall abide its obligations under the Agreement and shall pay the Company the Fees set forth in the Order Form, as relevant, according to the payment terms set forth in the Order Form and herein.
(B) The Fees do not include taxes which shall be added as required by law, including VAT. The Customer shall bear any and all taxes in connection with any payments made to the Company pursuant to the Agreement. The Company shall be entitled to withhold any taxes as required by law. The Customer shall not be entitled to offset any payments due to the Company under the Agreement.
(C) If the Customer defaults in payment of any amount due to the Company, the Company shall provide a written notice to the Customer. If any invoice for the Fees remains unpaid for more than thirty (30) days following the date of such notice, then the Company may suspend further performance of the Services (including revoking the Customer’s access to the Services) until Customer pays any amount owed to the Company in full. Interest will accrue on amounts past due at the higher of: (i) the daily rate of “Bank Israel”; or (ii) the maximum permitted by applicable law. In any proceeding brought by the Company to collect amounts due, the Company will also receive its actual costs of collection, including reasonable attorneys’ fees.
3. Representations and Warranties of the Parties
(A) Each Party represents and warrants that it has the power and authority to execute the Agreement, to perform its obligations under the Agreement, and that neither the execution of the Agreement nor the performance of the obligations under it will violate any contract, agreement, court order, injunction, consent, decree or law to which such party is subject to or by which it is bound.
(B) Customer further represents, warrants, and acknowledges (as applicable) that: (1) It shall use the Services and the Renders in accordance with the provisions of the Agreement and any guidelines provided by the Company, from time to time; (2) Certain portions of the Services may be provided by third-party licensors, and the Company’s ability to provide such portion of the Services is subject to the willingness of such licensors to continue to contract with it; (3) The Services are provided “AS IS” and may be modified, supplemented, or removed from time to time, at the Company’s sole discretion; (4) The Services shall not be free from defects, errors and bugs and therefore, and subject to the other provisions of the Agreement, the Company gives no warranty or representation that the Services or the Renders will be wholly free from defects, errors and bugs; (5) The Services shall not be entirely free from security vulnerabilities and therefore, subject to the other provisions of the Agreement, the Company gives no warranty or representation that the Services will be entirely secure; (6) It will comply with all applicable laws, rules and regulations applicable to the performance of the contemplated activities under the Agreement and the use of the Services and the Renders, in any applicable country; (7) It will obtain and keep current all governmental permits, certificates and licenses necessary for the use of the Services and the Renders, and any other contemplated activities made available through the Services and the Renders; (8) It will, upon the Company’s request, provide evidence reasonably satisfactory to the Company of its compliance with this Section 3; and (9) The terms and limitations of the Agreement, including the warranty and liability limitations and exclusions as set forth below in Section 6, are fair and reasonable in light of the amounts to be paid by the Customer and the nature of the Services.
4. Title, Rights and Feedback
(A) All title, rights, and interest, including intellectual property rights (including all copyrights, patents, trade secret rights, trademarks and know-how), in and to the Services and the Renders, and all associated materials, whether said rights are registered or unregistered, shall remain at all times the Company’s sole and exclusive property. Except as specifically set forth herein, no right, license, or interest to the Services or to the Renders, or to any of the Company’s intellectual property, is granted to the Customer under the Agreement, and the Customer agrees that it shall assert no such right, license, or interest with respect to the Services or the Renders, or such intellectual property.
(B) The Customer has the right to use the Renders under the License only to train computer vision algorithms, including for internal projects or commercial use. The Customer must not, and must not allow or aid any third party to: (1) Sub-license its right to access and use the Services or the Renders (or any part thereof), including, but not limited to, by republishing, open-sourcing, reselling, transferring, assigning, leasing, pledging or in any way sharing, its right to access and use the Services or the Renders (or any part thereof), as applicable.; (2) Permit any unauthorized person to access or use the Services or the Renders; (3) Use the Services or the Renders to provide services to third parties; (4) Copy, or make any alteration to, or access the software code of the Services or damage, interfere with, or disrupt the integrity, performance or use of the Services; (5) Use the Services or the Renders in any way that is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity; (6) Copy, alter or reproduce the software or the documentation which accompanies the Services or create derivative works thereto; (7) Develop any other product containing any of the concepts or ideas contained in the Services; (8) modify, alter, reverse engineer, revise, enhance, decompile or disassemble the Services, incorporate them into any other software, or attempt to create the source code or underlying ideas or algorithms from the object code of the Services; (9) Remove or otherwise alter any of the Company’s trademarks, logos, copyrights, notices or other proprietary notices or indications, if any, fixed or attached to the Services; or (10) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Services for any purpose.
(C) The Customer may, from time to time, provide Feedback (as defined below) to the Company. The Customer agrees that all Feedback will be given voluntarily. Feedback, even if designated as confidential by the Customer, shall not create any confidentiality obligation for the Company. Furthermore, the Company shall be free to use, disclose, reproduce, license or otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise. “Feedback” means comments for improvements or modifications or other feedback which the Customer may from time to time provide to the Company with respect to the Services.
5. Term and Termination
(A) The term of the Agreement commences on the Effective Date and continues indefinitely, as provided in the Order Form, unless otherwise terminated by either party.
(B) The Customer may terminate this Agreement at any time, with written notice, but will not be entitled to a refund for any purchases already made, except pursuant to Section 1(B). The Company may, without prejudice to the other rights or remedies available to it, immediately terminate the Agreement if the Customer: (1) Breaches any provision under the Agreement or fails to perform its obligations thereunder, and such breach or failure continues for a period of ten (10) days following the receipt of a written notice to this effect; (2) Institutes or suffers the institution against it of bankruptcy, reorganization, liquidation, receivership, insolvency or similar proceedings; or (3) Becomes generally unable to pay its debts as they become due.
(C) Upon termination of the Agreement, all Renders and data related thereto may be deleted from Company’s storage, and Customer bears sole responsibility for downloading the Renders prior to the termination of the Agreement.
(D) Upon termination or expiration of the Agreement, for any reason whatsoever, all Sections which by their nature are intended to survive termination or expiration of the Agreement, including but not limited to the provisions of Sections 2, 4, 5, 6, 8, and 9 to these T&Cs, shall remain in full force and effect.
6. Disclaimer of Warranties and Limitation of Liability
(A) THE COMPANY SHALL NOT HAVE ANY LIABILITY TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, CLAIMS, OR COSTS (INCLUDING ATTORNEYS’ FEES) OR LOSS OF GOODWILL, LOSS OF PROFITS, OR LOSS OF DATA, REGARDING THE AGREEMENT OR RESULTING FROM OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE OR PERFORMANCE OR NONPERFORMANCE OF THE SERVICES AND THE RENDERS OR OTHER DELIVERABLES HEREUNDER, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY UNCURED BREACH BY THE COMPANY OF ITS OBLIGATIONS UNDER THE AGREEMENT, IS TERMINATION OF THE AGREEMENT BY WRITTEN NOTICE TO THE COMPANY. THE COMPANY’S MAXIMUM LIABILITY TO THE CUSTOMER SHALL BE THE AMOUNTS ACTUALLY PAID TO THE COMPANY BY THE CUSTOMER UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CUSTOMER’S CAUSE OF ACTION.
(B) THE SERVICES, THE LICENSE AND THE DELIVERABLES HEREUNDER ARE PROVIDED TO THE CUSTOMER “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY. THE COMPANY DOES NOT WARRANT THAT THE SERVICES AND THE RENDERS, OR ANY OTHER DELIVERABLES PROVIDED HEREUNDER, WILL BE UNINTERRUPTED OR ERROR-FREE AND THE COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE COMPANY MAKES NO REPRESENTATION OR WARRANTIES, EXPRESSED OR IMPLIED, AS TO THE QUALITY, ACCURACY, COMPLETENESS, CONDITION, OR SUITABILITY OF ANY OF THE SERVICES OR RENDERS OR OTHER DELIVERABLES PROVIDED HEREUNDER (INCLUDING, WITHOUT LIMITATION, THE DGUS).
(C) The Company will have no obligation to the Customer to the extent that any damages, claim, or costs arise from: (a) any modification to the Services or deliverables made by anyone other than the Company; (b) modifications made by the Company at the Customer’s request; (c) use of the Services or the Renders other than as specified in the Agreement or in the applicable documentation; (d) use of prior versions of the Services; or (e) use of the Services or the Renders in combination with third-party software, hardware or data.
7. Customer Data
In order to provide the Services, the Customer may need to provide the Company with certain data and information. The Customer hereby grants the Company, during the Term, a non-exclusive license to copy, reproduce, store, process, edit and translate all data, works and materials uploaded to or stored on the Service or another Company platform by the Customer; transmitted by the Service or generated by the Service as a result of the use of the Service by the Customer (the “Customer Data”), to the extent reasonably required for the performance of the Company’s obligations and the exercise of the Company’s rights under the Agreement. The Customer also grants to the Company the right to sub-license these rights. Customer is solely responsible for ensuring it has all necessary rights to share such Customer Data with the Company in accordance with applicable laws, rules, regulations and privacy policies, for use in connection with the Services and shall confirm the same in writing if requested by the Company from time to time. The Customer warrants to the Company that the Customer Data will not infringe the intellectual property rights, privacy rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
During the performance of the Agreement, the Customer and the Company may have access to certain of the other party’s Confidential Information (as defined below). Each of the Customer and the Company agrees as follows: (a) to use Confidential Information of the other party only for the purposes of providing or accessing the Services and Renders, as applicable; (b) that it will hold in confidence and protect such Confidential Information from any unauthorized disclosure; (c) that it will not create any unauthorized derivative works from the other party’s Confidential Information; and (d) to restrict access to the other party’s Confidential Information to only those of its personnel, agents, and/or consultants who have a need to have access, and who have agreed in writing to treat such Confidential Information in accordance with the terms of the Agreement. Each of the Customer and the Company agrees that no transfer of ownership of Confidential Information is effected under the Agreement.
“Confidential Information” is information about the business, operations, technology, or users of a party or its affiliates, whether written, oral, or electronic, that is either non-public, confidential, or otherwise proprietary in nature or by law.
9. General Provisions
(A) Relationship of the parties. The Company is an independent contractor and nothing in the Agreement will be construed to make either the Company and the Customer partners, joint ventures, principals, agents or employees of the other. No officer, director, employee, agent, affiliate or contractor employed by the Company to perform work on Customer’s behalf under the Agreement will be deemed to be an employee, agent or contractor of the Customer. Neither party will have any right, power or authority, express or implied, to bind or make representations on behalf of the other.
(B) Assignment. The Company may assign and/or transfer and/or subrogate its rights under the Agreement, provided that the Customer’s rights under the Agreement shall not be infringed. The Customer shall not assign its rights and obligations under the Agreement without the Company’s prior written consent.
(C) Notices. All notices and demands hereunder shall be in writing and shall be served by personal service, electronic mail, or by mail, to the address of the receiving party set forth in the Agreement (or such different address as may be designated by such party by written notice to the other party). The notice will have been given (a) when delivered by hand, (b) on the next business day, if delivered by a recognized overnight courier or sent by electronic mail, or (c) on the third business day if mailed (by certified or registered mail, return receipt requested).
(D) Entire Agreement. The recitals and exhibits hereto, and the applicable Order Form, constitute an integral part of the Agreement. The Agreement constitutes the entire agreement between the parties relating to the Services and to the Renders and the matters herein, and supersedes all prior written or oral understandings, agreements or representations by or between the parties with respect to these subjects. Any modification or waiver of the Agreement is effective only if it is in writing, signed by an authorized representative of each of the Customer and the Company.
(E) Waiver. No delay or failure by a party in exercising any right, power or privilege under the Agreement or any other instruments given in connection with or pursuant to the Agreement will impair any such right, power or privilege or be construed as a waiver of or acquiescence to any default. No single or partial exercise of any right, power or privilege will preclude the further exercise of that right, power or privilege or the exercise of any other right, power, or privilege.
(F) Force Majeure. The Company shall not be liable for any failure to perform its obligations hereunder due to a cause beyond its reasonable control, including without limitation, strike, labor or civil unrest or dispute, embargo, blockage, work stoppage, lockdown, protest, war, terrorism, or acts of God such as fires, floods, electrical storms, pandemic, and natural catastrophes (each a “Force Majeure”). In the event of a Force Majeure, the performance of the Company’s obligations shall be suspended during the period of existence of such Force Majeure as well as the period required thereafter to resume the performance of the obligation.
(G) Counterparts. The Agreement may be executed in any number of counterparts, each of which shall be deemed an original and enforceable against the parties actually executing such counterpart and all of which together shall constitute one and the same instrument.
(H) Severability. If any provision of the Agreement is held invalid, void, or unenforceable to any extent, that provision will be enforced to the greatest extent permitted by law and the remainder of the Agreement and application of such provision to other persons or circumstances will not be affected.
(I) No Third-Party Beneficiary. Nothing in the Agreement, expressed or implied, shall confer on any person other than the parties hereto, or their respective permitted successors or assigns, any rights, benefits, remedies, obligations or liabilities under or by reason of the Agreement or the transactions contemplated herein.
(J) Governing Law; Place of Jurisdiction. The Agreement shall be governed by and construed in accordance with the laws of the State of Israel, without giving effect to any conflict of laws provisions thereof. The parties hereby submit to the exclusive jurisdiction of the competent courts located in Tel Aviv, Israel over any dispute or matter which arises under or in connection with the Agreement.
Last updated: January 26, 2023
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