1. Acceptance. Welcome to Octopai Ltd.!! (the “Company” or “Octopai”, “we”, “our” or “us”). The following terms and conditions (the “Terms”) govern your access to, and use of our website: www.octopai.com (together with content and services set forth in such site, together, the “Website”); and (b) subject to download, your access to, and use of Octopai’s Service, software-as-a-services BI platform and any related code, documentation, features, and services, as well as any fixes, updates or upgrades in connection therewith (collectively, the “Solution”). Please read these Terms carefully as they set out the legal rights and obligations between you and the Company with respect to the subject matter hereof. In these Terms, references to the “Service” shall include both the Site and the Solution.
By accessing or using any part of the Services, you acknowledge that you have reviewed, and you agree to be bound by, these Terms and Octopai’s Privacy Policy (the “Privacy Policy”). Furthermore, if you are acting on behalf of an entity (for example, if you are an employee or an agency), you represent that you are authorized to act on behalf of, and bind to these Terms, such entity. If you do not agree to these Terms, you may not access or use any part of the Service.
2. Website. The Website is intended for informational purposes only, except if indicated otherwise thereunder. We make the Solution available to our customers (each, a “Customer“). The Solution processes and unifies data collected by the Customer (the “Data“). It is the Customer, and not Company that decides and instructs, in its discretion, what Data will be collected and made available to and via the Solution, and Company only processes Data in accordance with such decisions and instructions. The Solution then analyzes and converts such Data into usable business data, by producing reports for our Customers (“Report(s)“). Company has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, Company will not and cannot censor or edit the content of any third-party website. By using the Website, you expressly relieve Company from any and all liability arising from your use of any third-party website.
3. Modification. Company reserves the right, at its own discretion, to modify these Terms at any time. Such modification(s) will be effective ten (10) days following posting of the modified Terms on the Website (the modified Terms will not be posted on or via the Solution), and your use of any part of the Services thereafter means that you accept those modifications. We therefore encourage you to check the Site regularly to see the most current Terms.
4. Account. In order to access and use the Solution, to receive access for a demo of the Solution and/or to contact us for additional information, you must create an account (“Account“) by going through the registration process. You must complete the registration process by providing us with information that is (and you must ensure it remains) current, complete and accurate (such as your name, email address, telephone number, address) and you will then be required to create a password for the Account. If you are an entity, your respective employees and agents may be required to create separate Accounts. You are solely responsible for (a) protecting your Account username and password; and (b) any and all activities that occur under or through your Account. You must notify us immediately upon becoming aware of, or suspecting, any security breach or unauthorized access to your Account. If you allow a third party to access your Account on your behalf, you are responsible for ensuring that such third party has consented to, and abides by, these Terms. The Company may from time to time log in to your Account in order to provide support, maintenance, improvement, business, and/or security-related services, and you consent to such access.
5. Cancellation. If you wish to cancel your Account, you may use the tools provided to cancel it or contact us here. Please be aware, however, that once your Account has been cancelled (i) you will not have access to and use of the Solution and any data or information stored in your Account; and (ii) you may still be subject to these Terms, such as, but not limited to, your payment obligations hereunder. Furthermore you acknowledge and agree that when you create an Account, you are the “controller” and Company is the “processor” (as such terms are defined in the Directive 95/46/EC of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data (the “Directive“)) of any personal data provided, generated, transmitted or displayed via the Solution. You must comply with all applicable data protection legislation (including the Directive) and Company’s Privacy Policy.
6. License and Restrictions.
6.1 Non-exclusive license to the Website. Company hereby grants you a limited, non-exclusive, non-sublicensable, non-transferable, revocable license to access and use the Website and the Solution, provided that you comply with these Terms and the same restrictions and conditions set forth (with respect to the Solution) in Section 6.2 subparagraphs (i)-(viii) below. You are aware and agree that the Company is entitled, at its sole discretion, to restrict and/or block your use of the Website and Solution provided therein, in the event that your use of the Website and/or Solution do not comply with the provisions the License and/or any of these Terms.
6.2 License to Solution. Subject to your registration to the Website as set forth above and your compliance with these Terms, during the corresponding subscription period Company hereby grants you a limited, revocable, non-exclusive, non-sublicensable, and non-transferable (a) right to remotely access and use the Solution to view and download such reports derived in connection therewith made available on your Account; and (b) license to copy, use, install and embed the Solution’s code (the “Tracking Code“, which is part of the Solution) solely as necessary for you to use the Solution; all subject to these Terms. (The right and license granted under subparagraphs (a) and (b) shall be referred to collectively as, the “License“.)
7. Conditions to the License. As a condition to the License you agree not to (and shall not allow any third party to):
7.1 Copy, distribute, broadcast, rent, lease, lend, use for timesharing or service-bureau services, export, modify, adapt, translate, enhance, customize, or otherwise create derivative works of, the Solution or any part thereof;
7.2 Reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of, the Solution or any part thereof, except as expressly permitted by the law in effect in the jurisdiction in which you are located;
7.3 Remove or distort any proprietary notices, labels or legends on or in the Solution;
7.4 Use any automated means to access or use the Solution, nor circumvent or disable any security or technological features of the Solution;
7.5 Use, send, upload, post, transmit or introduce any device, code, routine or other item (including without limitation bots, viruses, worms, and Trojan horses) that interferes (or attempts to interfere) with the operation or integrity of the Solution, nor any content that is unlawful, infringing, defamatory, deceptive, obscene fraudulent, harassing, pornographic, or abusive;
7.6 Use the Solution to design or develop any competing product or service that competes with the Solution, nor use the Solution for any unlawful or fraudulent purpose, to breach these Terms, or infringe or misappropriate any third party intellectual property, privacy, or publicity right;
7.7 Take any action that imposes or may impose, as determined in Company’s sole discretion, a disproportionately large load of incoming requests on the Solution infrastructure;
7.8 Violate or abuse password protections governing access to the Solution.
8. License to Data. You hereby grant Octopai a royalty-free, fully-paid, non-exclusive, and worldwide right to access, log, retain and use all data and information pertaining to your Account, as well as all other data and content you may provide us, to: (a) administer and make improvements to the Solution, as well as carry out related tasks; (b) provide you with reports and other functions related to the Solution; (c) collect and analyze Anonymous Information (as defined in our Privacy Policy) and compile statistics, metrics, insights, and general trend data about the Solution for, amongst other things, Company’s marketing and promotional purposes.
9. Payment. Your access to and use of the Solution (including your Account) is subject to your up-front and timely payment in full of all subscription fees, taxes and similar charges set forth in the then-current order form that you have entered into with Company for your use of the Solution, which order form shall also contain the applicable payment terms and conditions (the “Order Form“). We may permit you to create an Account on a limited free-trial basis, but such free trial is subject to the conditions, restrictions and obligations that we impose. Company reserves the right in its absolute discretion to modify, cancel and/or limit the free trial at any time. For the avoidance of doubt, these Terms are still binding on you during a free trial.
10.1 Intellectual Property Rights.
10.1 All intellectual rights not expressly granted under these Terms are hereby reserved by Company and/or its licensors, as applicable. Furthermore, the rights granted by Company to you under these Terms shall terminate immediately upon the earlier of the termination of these Terms (as described in Section 16 below) or your breach of any provision of these Terms.
10.2 Solution. All rights, title and interest in and to the Solution, including all reproductions, corrections, modifications, customizations, enhancements and improvements thereof, as well as all related patent rights, copyrights, trade secrets, trademarks, service marks, and goodwill, are and shall remain the sole and exclusive property of Company and/or its licensors, as applicable.
10.3 Website. The content on the Website, including without limitation, the text, documents, descriptions, products, software, graphics, photos, sounds, videos, interactive features, and services (collectively, the “Site Content“) and the trademarks, service marks and logos contained therein (the “Site Marks“), are and shall remain the sole and exclusive property of Company and/or its licensors, as applicable; and may be protected by applicable copyright or other intellectual property laws and treaties. “Octopai“, and any Company’s logo and trademarks and any other marks are Site Marks of Company. All other trademarks, service marks, and logos used on the Service are the trademarks, service marks, or logos of their respective owners. We reserve all rights not expressly granted in and to the Service and the Site Content.
10.4 Data and Reports. All rights, title and interest in and to the data and reports generated and linked to your Account are and shall remain your sole and exclusive property.
11. Confidentiality. Both Company and you may have access to certain non-public and/or proprietary information of the other, in any form or media, including without limitation trade secrets, technical data, technology, know-how, software codes and designs, price lists, and developments (“Confidential Information“). For clarity, it is agreed that the Solution (in whole and in part) is Confidential Information of Company. Each party shall take measures at least as protective, but in no event less than a reasonable standard, as those taken to protect its own Confidential Information, to safeguard the Confidential Information of the other party from unauthorized disclosure or use. You may only use our Confidential Information to the extent explicitly granted under these Terms (if any), and you may only disclose our Confidential Information to your employees who have a need to know such Confidential Information and who are subject to a written confidentiality undertakings at least as protective of our Confidential Information as set forth herein. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the party disclosing it hereunder. In the event you are required by law, regulation, judicial order or other administrative or legal requirement to disclose our Confidential Information, you agree to notify us immediately in writing. Upon termination of these Terms (as described in Section 16 below), each party shall promptly return or destroy all Confidential Information of the other party and, upon request, certify same in writing.
12. Links and Advertisements. The Service may: (a) contain links to third party websites that are not owned or controlled by Company; and (b) display advertisements not operated or endorsed by Company. You acknowledge that we assume no responsibility over the items in subparts (a) and (b) (including the privacy, and other, practices of the third parties that operate or control them) and you agree that Company and any party acting on its behalf shall not be liable under any circumstances for any loss, damage or injury that results directly or indirectly therefrom. Your use or reliance upon such websites and advertisements is at your sole risk and we encourage you to review the applicable privacy policies and terms of use.
13. Third Party Software. The Solution may contain third party, including open source, software (“Third Party Software“) that may be subject to third party terms and conditions (“Third Party Terms“).Company will provide a list of any Third Party Software and related Third Party Terms within the Solution, and you agree to comply with such Third Party Terms. To the extent of any conflict between any Third Party Terms and these Terms, the former shall prevail solely in connection with the Third Party Software to which it relates. Notwithstanding anything in these Terms to the contrary, Company does not make any representation, warranty or indemnity with respect to any Third Party Software.
14. Compliance with Laws. You agree to comply with all applicable international, national, state, regional and local laws and regulations in accessing and/or using the Service (or any part thereof) and in performing your obligations and exercising your rights under these Terms, including without limitation laws relating to privacy, data protection, and exports.
15. Representations and Warranties. You hereby represent and warrant that (a) you possess and shall maintain all rights, licenses and consents required to license the Data and the User Material on the terms described above, and that such licenses do not infringe or misappropriate the intellectual property, privacy, and/or publicity rights of any third party; (b) you own or have the necessary rights and permissions to use and access the Solution including the right to install such Solution; and (c) you possess and shall maintain all governmental and administrative licenses, permits and approvals necessary to use the Solution and to perform your obligations and exercise your rights under these Terms.
16. Termination and Survival.
16.1 By Company. You acknowledge and agree that Company may at any time, for any reason, and without notice to you: (a) discontinue or modify any aspect of the Service; and/or (b) suspend or terminate your, or general, access to the Service (or any part thereof), and in such an event Company shall not be liable to you or any third party for any loss, damage, or injury resulting or arising therefrom. Either of the foregoing acts shall constitute our termination of the Terms and any Account you may have shall become cancelled upon such termination.
16.2 By You. If you object to any term or condition of these Terms, or becomes dissatisfied with the Service in any way, your only recourse and sole remedy is: (a) in the event you have an Account, cancel the Account (“Account Cancellation”) and immediately cease using the Service; and (b) in the event you are a Website user, immediately cease using the Website. Either of the foregoing acts will constitute your termination of the Terms. You agree, however, that any Account Cancellation shall not derogate from any payment obligations you may have towards Company under these Terms.
16.3 Access to Data. Upon termination of the Terms, You will lose all access to any Data and Reports that Company may be storing in order to make available the Solution to You. It is Your responsibility to access your Data and Reports prior to termination of this Terms. Notwithstanding the foregoing, for a period of thirty (30) days from the effective date of termination of the Terms, Company will provide users, upon user’s written request, with a reasonable opportunity to access the Data and Reports. Company reserves the right to permanently delete any Data and Reports that may be contained in an Account at any time following said thirty (30) day period, and you waive any legal or equitable rights or remedies you may have against Company with respect to Data and Reports that are deleted in connection thereto.
16.4 Survival. Sections 8, 9, 10, 11, 16, 17, 18 and 19 shall survive any termination of these Terms.
17. Disclaimer of Warranties.
17.1 This section applies whether or not access to or use of the Service (or any part thereof) is for payment. You assume all responsibility for the selection of the Service to achieve your intended results. Applicable law may not allow the exclusion of certain warranties, so to that extent such exclusions may not apply.
17.2 THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND YOU ACKNOWLEDGE THAT THERE ARE NO REPRESENTATIONS, WARRANTIES OR CLAIMS OF ANY KIND MADE BY COMPANY WITH RESPECT TO THE SERVICE, THE DATA AND THE REPORTS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE, OR OTHERWISE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE.
17.3 COMPANY DOES NOT WARRANT THAT THE SERVICE WILL OPERATE UNINTERRUPTED, ERROR FREE, ACCORDING TO YOUR NEEDS, OR THAT DEFECTS WILL BE CORRECTED. COMPANY DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION OR CLAIM REGARDING ANY CONTENT, MATERIALS, INFORMATION, OR RESULTS THAT YOU OBTAIN THROUGH THE SERVICE. YOUR USE OF, AND RELIANCE UPON, THE WEBSITE, SERVICE, DATA, AND/OR REPORTS IS ENTIRELY AT YOUR SOLE DISCRETION AND RISK, AND COMPANY SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER TO YOU IN CONNECTION WITH ANY OF THE FOREGOING.
17.4 YOU AGREE THAT COMPANY WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CONSEQUENCES TO YOU OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS OF THE INTERNET, SLOW CONNECTIONS, SYSTEM FAILURE, OUTAGES, TRAFFIC CONGESTION, OVERLOAD OF OUR OR OTHER SERVERS, OR OTHER EVENTS BEYOND COMPANY’S CONTROL (SUCH AS STRIKES, RIOTS, FIRES, FLOODS, WAR, TERRORISM, GOVERNMENTAL ACTIONS, LABOR CONDITIONS, AND NATURAL DISASTERS).
18. Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION IN THESE TERMS, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:
18.1 COMPANY WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND, NOR FOR YOUR, OR ANY THIRD PARTY’S, LOSS OF PROFITS, REVENUES, BUSINESS OPPORTUNITY, OR DATA, ARISING OUT OF THESE TERMS OR IN CONNECTION WITH THE USE OF, OR INABILITY TO USE, THE SERVICE (OR ANY PART THEREOF), WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY, BREACH OF STATUTORY DUTY, OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
18.2 COMPANY’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY LOSS AND/OR DAMAGES UNDER THESE TERMS OR IN CONNECTION WITH THE USE, OR INABILITY TO USE, THE SERVICE (OR ANY PART THEREOF), SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU TO COMPANY HEREUNDER IN THE SIX (6) MONTHS PRIOR TO BRINGING SUCH CLAIM.
19. Indemnification. You agree to defend and hold harmless Company, its directors, officers, employees, agents and partners (each, an “Indemnified Party“) from and against any and all third-party claims, demands, actions and/or proceedings based upon, among others, or arising out of: (i) any of your use of the Service (or any part thereof); (ii) your breach of any of these Terms; (iii) your User Material; (iv) your violation of applicable laws, rules or regulations in connection with the Service; (v) your violation of a third party right (including privacy rights); and/or (vi) your breach of any representations and/or warranties made by you under these Terms; (each, a “Claim”), and you agree to indemnify and pay the Indemnified Party for any and all damages, obligations, losses, liabilities, penalties, fines, costs and expenses (including but not limited to reasonable attorneys’ fees) incurred by the Indemnified Party in connection with the Claim, or in the settlement or avoidance of the Claim. Company will notify you of any Claim subject to the foregoing obligation. The Indemnified Party shall cooperate in any defense and settlement and may participate in such defense at its own expense. You agree not to enter into any settlement of any Claim without Company’s prior written consent, which shall not be unreasonably withheld.
20. U.S. Government Rights. If the use of the Solution is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-2 (for Department of Defense acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-Department of Defense acquisitions), the Government’s rights in the Solution, including its rights to use, modify, reproduce, release, perform, display or disclose the Solution (or any part thereof), will be subject in all respects to the commercial license rights and restrictions provided under these Terms.
21. Assignment. You will not assign these Terms, delegate any duty or assign any right hereunder without the prior express written consent of Company. Any such attempted assignment or delegation that does not comply with the foregoing shall be null and void. Company may assign or transfer these Terms, delegate any duty and/or assign any right hereunder to any third party. These Terms will be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.
22. General.
22.1 Entire Agreement. These Terms, together with any annexes, schedules and/or exhibits, constitutes the entire agreement between you and Company with respect to the subject matter hereunder, and supersedes any prior or contemporaneous agreements or understandings between you and Company. These Terms may be amended only in a writing signed by each party’s authorized signatories.
22.2 Relationship. The relationship between you and Company is solely that of independent contractors. Nothing in these Terms shall be construed to create a partnership, joint venture, employment or agency relationship.
22.3 Governing Law. These Terms shall be governed by, and construed in accordance with, the laws of the State of Israel, without regard to its conflict of laws rules and provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to, and is expressly excluded from, these Terms.
22.4 Jurisdiction and Venue. You agree that any action, proceeding, controversy or claim (each, a “Dispute“) under or arising out of these Terms, between you and Company, shall be brought and resolved only in the courts located in Tel Aviv-Jaffa, Israel, and you hereby irrevocably submit to the personal jurisdiction and venue of such courts with respect to a Dispute. Notwithstanding the foregoing, equitable relief may be sought in any court of competent jurisdiction.
22.5 Equitable Relief. You acknowledge that a breach, threatened breach, and/or intended breach by you of certain provisions under these Terms will result in irreparable injury and harm to Company for which there will be no adequate remedy at law, and that Company shall be entitled to appropriate equitable relief (including, without limitation, preliminary and permanent injunctions) in any court of competent jurisdiction.
22.6 Severability. In the event any provision of these Terms is ruled to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired, and a valid, legal and enforceable provision of similar intent and economic impact shall be substituted therefor.
22.7 Headings. Section headings used in these Terms are inserted for convenience only and shall not be used in the interpretation of these Terms.
22.8 Waiver. No failure or delay on the part of Company in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. Any waiver granted hereunder must be in writing and shall be valid only in the specific instance in which given.
23. Contact Information:
OCTOPAI B.I. LTD.
C.R.#: 515187078
23 Hamelacha Street,
Rosh Haayin 4809239, Israel
Email address: amnond@octopai.com
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