BETA USE AGREEMENT
THIS BETA USE AGREEMENT (THE “AGREEMENT”) GOVERNS THE BETA USE OF IDENTICK’S PLATFORM (AS SUCH TERM IS DEFINED HEREUNDER).
BY REGISTERING ON OUR SITE TO USE THE PLATFORM OR OTHERWISE CONFIRMING YOUR CONSENT TO THESE TERMS, YOU EXPRESSLY ACKNOWLEDGE AND AGREE TO BE BOUND BY THIS AGREEMENT BETWEEN IDENTICK LTD. (“WE”, “US”, “OUR” OR “IDENTICK”), AND YOURSELF, AN INDIVIDUAL (EMPLOYEE OR OTHERWISE) DESIGNATED BY YOUR ORGANIZATION TO USE THE PLATFORM FOR OR ON BEHALF OF THE ORGANIZATION (THE “REPRESENTATIVE”, AND TOGETHER WITH THE ORGANIZATION, THE “USER”).
THE TERMS “YOU” AND “YOUR” WILL APPLY COLLECTIVELY TO SUCH ORGANIZATION AND SUCH REPRESENTATIVE, UNLESS OTHERWISE EVIDENT FROM THE CONTEXT.
BY REGISTERING ON OUR SITE TO USE THE PLATFORM YOU ALSO CONFIRM THAT:
- YOU HAVE THE PROPER AUTHORITY TO LEGALLY BIND THE ORGANIZATION TO THE AGREEMENT; AND
- YOU HAVE SECURED ALL NECESSARY AUTHORIZATIONS TO ENTER INTO THE AGREEMENT.
- “Script” means the Identick’s proprietary software code snippet to be installed on webpage(s) that the User lawfully own or control for the purpose of collecting the User Data and providing the Platform.
- “Bug Fix” means code in respect of the Platform, intended to correct, repair, remove or workaround an error, fault of malfunction in the Platform.
- “Fees” means the fees, charges and payments we separately agreed with you (if at all).
- “Marks” means trademarks, trade names, and logos, whether registered or not.
- “Platform” means Identick’s proprietary products and/or services as listed in Schedule A, along with any user documentation, and other supplemental materials, including but not limited to the Script.
- “Term” means the period of this Agreement as set out in Section 8
- “User Data” means the data we collect and process, or are exposed to in the course of providing the Platform, as further detailed in Section 4
- “Website” means the Organization’s website which is or will be configured to inter-operate with the Platform.
- The term “including”, means including, but not limited to, and without limitation, to the generality of the preceding phrase.
- Right to Use. During the Term, you may access and use the Platform, and copy, install and use the Script on the Website, solely for the Organization’s internal use and subject to the terms and conditions specified in this Agreement, on a non-exclusive, revocable, non-transferable, and non-sublicensable basis.
- User Data.
- As between the parties, the User owns and retains all right, title and interest in and to all data and information generated from the User’s uses of the Platform which data may include personal data of the User’s end-users.
- User acknowledges and agrees that User Data may be stored on external cloud servers operated and managed by global third party cloud service providers, as customary in the industry (i.e. Amazon, Azure etc.).
- User further acknowledges and agrees that User Data may be transferred or stored outside the country where User and/or its own end-users are located in order to provide the Platform.
- User must ensure that it is entitled to transfer the relevant data to Identick so that Identick may lawfully process the User Data in accordance with this Agreement for the provision of the Platform.
- You acknowledge and agree that we may use the User Data, among others, for the following purposes:
- To perform and enforce this Agreement, collect Fees, and conduct administrative activities necessary to maintain and provide the Platform to you;
- If we are required or reasonably believe we are required, by law, to share or disclose the User Data, provided that, to the extent legally permitted, we will give you prompt notice of the requirement prior to such disclosure; and
- Any other commercial purpose we deem appropriate (including research, development, testing, and enhancing the Platform and our products and services), provided that we do not use the User Data in any manner that would disclose to any third party, your identity as the origin of the User Data, other than as required by law.
- Subject to the foregoing, we will take precautions to maintain the confidentiality of the User Data, in a manner no less protective than we use to protect our own assets, but in no event less than reasonable care. We will not use or disclose the User Data except as described above, or otherwise subject to Your express, prior, written. Our personnel will access the User Data on a strict ‘need to know’ basis, subject to the terms herein.
- Identick may enter into a Data Processing Agreement with the User (“DPA”) which shall more particularly address the processing of personal data.
- Feedback and Confidentiality
- It is understood that during the Term, User may, at its sole discretion, provide Identick with suggestions and/or comments with respect to the Platform (“Feedback”). Any rights in or to such Feedback shall vest in Identick and Identick shall be entitled to (but shall not be obliged to) make use of any kind whatsoever of the Feedback or part thereof, at its sole discretion and at no charge to User.
- The User represents and warrants that it has obtained all permissions and consents, as may be necessary under any agreement or applicable law or, in order to allow us to use the Feedback in the manners specified above.
- You will not be entitled to any remuneration from us, for our use of the Feedback.
- The User acknowledges that all technical and non-technical information and materials regarding the Platform, its functionality, capabilities, structure, design and all other details related thereto, as well the details of this engagement and its performance, all constitute proprietary confidential information of Identick. You will treat all such information as confidential in a manner no less protective than you use to protect your own similar assets, but in no event less than reasonable care. The User will not disclose such Confidential Information, or have them disclosed, directly or indirectly to any third party without our prior written consent. Subsection 4.5.2 above will apply, mutatis mutandis, to the User, if the User is required, or reasonably believe that it is required, by law, to share or disclose our confidential information.
- In consideration for the rights granted to you under this Agreement, you will pay us, all applicable Fees (if any apply), in accordance with the schemes, amounts, periods and payment terms separately agreed with you in writing. All Fees are quoted in US Dollars, unless expressly stated otherwise.
- Payment shall be effected by wire transfer to our bank account, according to the details we convey to you or by any other means of payment we determine from time to time.
- All amounts payable to Identick, pursuant to this Agreement, are exclusive of any excise, sales tax, VAT, withholding tax or other governmental charges or transaction charges. The User is responsible for the payment of all such applicable taxes or charges and will remit grossed-up payments, to Identick, to include all such taxes and transaction charges, except for any taxes based solely on Identick’s net income.
- All Fees paid by the User are non-refundable. The User is responsible for paying all applicable Fees, whether or not it has actively used the Platform.
- Without derogating from any other rights and remedies available to us under the applicable law, overdue fees will accrue interest at the rate of three-quarters of one percent (0.75%) per month or part thereof, cumulative monthly on the linked capital from the due date until the date of actual payment. The User agrees to reimburse us for all legal costs and attorney fees we incur in the course of collecting its overdue fees.
- Failure to settle any overdue fee within thirty (30) calendar days of its original due date will constitute a material breach of the Agreement.
- You may not use, or have others use, or provide to third parties, the Platform, the Script, or any part thereof including by reselling, licensing, renting, leasing, transferring, lending, timesharing, assigning or redistributing the Software or any part thereof.
- You may not modify, make derivative works of, disassemble, de-compile or reverse engineer any part of the Platform.
- You may not use the Platform in order to develop, or create, or permit others to develop or create, a similar or competitive product or software.
- You may not perform or attempt to perform any of the following: (i) breaching the security of the Platform, or identifying any security vulnerabilities thereof; (ii) interfering with, circumventing, manipulating, impairing or disrupting the operation, or the functionality of the Platform; (iii) working around or circumventing any technical limitations in the Platform; or (iv) using any tool to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Platform.
- YOU MAY NOT USE THE SOFTWARE FOR ANY ACTIVITY THAT CONSTITUTES, OR ENCOURAGES CONDUCT THAT WOULD CONSTITUTE, A CRIMINAL OFFENSE, GIVE RISE TO CIVIL LIABILITY OR OTHERWISE VIOLATE ANY APPLICABLE LAW.
- Term and Termination.
- This Agreement shall be in effect starting from the registration to the Platform by the User and shall continue in perpetuity unless terminated in accordance with the terms of this Section 8.
- Either party may terminate this Agreement: (a) upon a 30 days’ prior written notice to the other party for any reason and at any time: (b) immediately upon written notice to the other party, if the other party materially breaches this Agreement; or (c) if the terminating party is required to do so by law.
- Unless the Parties have executed a separate written agreement, which grants the User a right to continue using the Platform after the Term, then upon termination of this Agreement for any reason whatsoever, the User will: (a) immediately pay all fees due (if any are due); (b) cease any and all use of the Platform and cause all other users of the Organization to cease any and all use of the Platform; (c) permanently uninstall the Script from all computers and other devices in its possession or control; and (d) permanently delete all other copies of the Script and the Platform in its possession or control and promptly return all originals copies, reproductions and summaries of Confidential Information and Confidential Materials within ten (10) days following termination of this Agreement.
- Termination of this Agreement by us will be, in addition to, and not in lieu of, any equitable or other remedies available to us.
- Sections 5, 8, 11, 13, 14 and 15 of this Agreement will survive any termination or expiration of this Agreement.
- Software quality, security and availability.
- We will use reasonable efforts to have the Platform operate properly. However, as a Platform in its beta phase, that relies on third party networks, infrastructure, hardware and software, we do not guarantee that the Platform will operate in an uninterrupted or error-free manner, or that it will always be available, free from errors or omissions, malfunctions, bugs or failures, including, but not limited to, hardware failures, software failures and communication failures. If we receive notice of any failure or malfunction, or if we identify them by ourselves, we will endeavor to regain the Platform ‘s full availability as soon as practicable. However, such incidents will not be considered a breach of this Agreement.
- You acknowledge that we may, upon coordination with you, suspend the operation of the Platform, for periodic maintenance purposes (“Downtime”).
- Support and Maintenance.
- During the Term, we will provide you technical support for questions, problems and inquiries regarding the Platform, during our business days and hours. We will endeavor to respond to support requests as soon as we can, and provide a reasonable resolution to your question, problem or inquiry.
- We will endeavor to provide you with Bug Fixes for Platform errors, bugs or malfunctions that you report, as soon as practicable, provided we are able to reproduce the error, bug or malfunction in question and considering, among others, the severity of the errors found or reported, and the magnitude of their effect. You agree to cooperate, and work closely with us to reproduce errors, bugs or malfunctions, including conducting diagnostic or troubleshooting activities, as we reasonably request.
- We cannot, and do not, guarantee any particular response or resolution time for the foregoing support and maintenance.
- Intellectual Property.
- All rights, title and interest, including copyrights, trademarks, trade names, trade secrets and other intellectual property rights, and any goodwill associated therewith, in and to the Platform or any part thereof, including the Script, computer code, graphic design, layout and the user interfaces of the Platform, and all derivatives, improvements and variations thereof, are and will remain at all times, owned by, or licensed, to us. Other than what is expressly granted by this Agreement, this Agreement does not grant you any other rights to patents, copyrights, trademarks (whether registered or unregistered), trade names, trade secrets, domain names or any other rights, functions, licenses, or content with respect to, or in connection with, the Platform.
- The Platform may use or include open source software components (“OSS”). To the extent so stipulated by the license that governs each OSS (“OSS License”), each such OSS is subject to its respective OSS License, not this Agreement, and is licensed to you directly by its respective licensor, not sublicensed by us. If, and to the extent, an OSS License requires that this Agreement effectively impose, or incorporate by reference, certain disclaimers, provisions, prohibitions or restrictions, then such disclaimers, provisions, prohibitions or restrictions shall be deemed to be imposed, or incorporated by reference into this Agreement, as required, and shall supersede any conflicting provision of this Agreement, solely with respect to the corresponding OSS which is governed by such OSS License
- You grant us permission to use your Marks on our website and in our marketing materials and marketing communications, to indicate that you are or were our customer.
- Disclaimer of Warranty. THE PLATFORM IS PROVIDED TO YOU “AS IS” AND “WITH ALL FAULTS”. WE DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, COMPATIBILITY, PERFORMANCE, SECURITY, ACCURACY, OR COMPLETENESS OR CORRECTNESS OF THE USER DATA. YOU AGREE AND ACKNOWLEDGE THAT THE USE OF THE PLATFORM IS ENTIRELY, OR AT THE MAXIMUM PERMITTED BY THE APPLICABLE LAW, AT YOUR OWN RISK. WITHOUT LIMITING THE FOREGOING, WE SPECIFICALLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES THAT THE PLATFORM OR THE USER DATA WILL MEET THE YOUR REQUIREMENTS OR FULFILL ANY OF YOUR NEEDS. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING STATEMENTS REGARDING CAPACITY OR SUITABILITY FOR USE OR PERFORMANCE OF THE PLATFORM, WHETHER MADE BY OUR EMPLOYEES OR OTHERWISE, SHALL BE DEEMED TO BE A WARRANTY BY US FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF IDENTICK WHATSOEVER.
- LIMITATION OF LIABILITY. EXCEPT FOR BREACH OF OUR CONFIDENTIALITY OBLIGATIONS, TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, WE, INCLUDING OUR EMPLOYEES, DIRECTORS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON OUR BEHALF, WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, STATUTORY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGE OR LOSS (INCLUDING LOSS OF PROFIT AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR IN ANY OTHER FORM OR THEORY OF LIABILITY, ARISING FROM, OR IN CONNECTION, WITH THIS AGREEMENT, INCLUDING ANY USE OF, OR THE INABILITY TO USE THE PLATFORM; ANY THIRD PARTY HARMFUL ACTS ADVERSELY IMPACTING YOURSYSTEMS; ANY DAMAGE TO OR LOSS OF DATA; ANY RELIANCE UPON THE USER DATA; ANY ERROR, INCOMPLETENESS, INCORRECTNESS OR INACCURACY OF THE USER DATA, OR INABILITY TO PROPERLY RECOVER DATA; OR ANY OTHER FAILURE, ERROR, OR BREAKDOWN IN THE FUNCTION OF THE SOFTWARE.
- You agree to indemnify, defend and hold harmless Identick and anyone acting on its behalf, at your own expense, from, and against, any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, resulting from any complaint, claim, or demand arising from or in connection with your breach of this Agreement.
- Governing Law and Jurisdiction. This Agreement, the Platform, and any claim, cause of action or dispute arising out of, or related thereto, will be governed solely by the laws of the State of Israel without giving effect to any conflict of law principles, which would result in the application of the laws of a jurisdiction other than the State of Israel. Any dispute, claim or controversy arising out of, connected with, or relating to this Agreement, the Software, or any use related thereto, will be under the sole and exclusive jurisdiction of the competent court in the Tel Aviv district of Israel.
- Assignment. You may not assign the Agreement without our prior written consent, which shall not be unreasonably withheld. Any purported assignment without our prior written consent is void. Notwithstanding the provisions of the Assignment of Obligations Law, we may assign this Agreement in its entirety, including all right, duties, liabilities and obligations herein, upon notice to the you and without obtaining your further specific consent, to a third-party, upon a merger, acquisition, change of control or the sale of all or substantially all of our equity or assets. By virtue of such assignment, the assignee assumes our stead, including all right, duties, liabilities and obligations.
- Complete Terms and Severability. This Agreement constitutes the entire and complete agreement between you and us concerning the subject matter herein. This Agreement supersedes all prior oral or written statements, understandings, negotiations and representations with respect to the subject matter herein. If any provision of this Agreement is held invalid or unenforceable, that provision shall be construed in a manner consistent with the applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining provisions will remain in full force and effect. This Agreement may be modified or amended only in writing, signed by the duly authorized representatives of both parties.
- No waiver. Neither party will, by mere lapse of time, without giving express notice thereof, be deemed to have waived any breach, by the other party, of any terms or provisions of this Agreement. The waiver, by either party, of any such breach, will not be construed as a waiver of subsequent breaches or as a continuing waiver of such breach.
- Visibility and insights:
Identick analyzes the web traffic for its customer’s website, to help understand the organizational identity of the visitors to the website. By analyzing the different traffic patterns, Identick helps its customers measure the impact of their marketing efforts and find new prospects.
Identick ‘s customers can consume this information using Identick’s email reports and Identick’s online dashboard.
- Dynamic content personalization:
Based on the visitor’s organization’s identity and the visitor’s activity, Identick’s solution displays personalized web content to create unique web viewing experiences.
Identick’s customers specify different target groups, for example, a list of companies. For each target group, the customer defines specific content tailored to that group. Identick then identifies the visitors in real time, and displays for each visitor the relevant tailored content based on the customer’s settings.