This End User License Agreement, along with applicable Exhibits (collectively referred to as the “Agreement”), as well as the purchase order entered into between you (the “Licensee“) and ThetaRay Ltd. (the “PO“) to which this Agreement is appended (“Effective Date”), is made as of the date of the PO by and between ThetaRay Ltd., a Company with its principal place of business at 8 Ha’nagar St., Hod-Hasharon, Israel (“ThetaRay”), and Licensee and shall govern Licensee’s use of the proprietary software products specified in the PO (the “Software”). By accepting this Agreement, or by installing or using the Software, you agree to this Agreement. If you are entering into this Agreement on behalf of a company or another legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement, in which case the term “Licensee” will refer to such entity and its affiliates.
If the legal entity that you represent does not agree with this Agreement, you must not accept this Agreement or install or copy or access or use the Software, and promptly return the Software to the party from whom you acquired them.
- Definitions. The following definitions shall have the following meanings throughout the Agreement:
1.1 “Intellectual Property Rights” means all intangible legal rights, titles and interests including without limitation: all inventions, patents, patent applications, trademarks, service marks, trade dress, logos, trade names, and corporate names, domain names, any work of authorship, copyrights, trade secrets, Confidential Information, and all other proprietary rights in whatever form or medium, in each case on a worldwide basis; together with all revisions, extensions, reexaminations translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith.
1.2 “Territory” means as set forth in the PO.
- Grant of Software License. Subject to the terms and conditions of this Agreement, including payment of fees specified in the PO, ThetaRay grants Licensee a nonexclusive, limited, non-transferable, non-sublicensable and revocable license, in the Territory and during the Term, to (i) utilize the Software on Licensee’s server solely for internal use within Licensee’s facilities, subject to the limitations of the license; and (ii) to make one (1) copy of the Software for archival and backup purpose (the “License“). Licensee has no right to receive, use or examine any source code or design documentation relating to the Software.
- Title; Intellectual Property Rights. THETARAY DOES NOT AND SHALL NOT BE DEEMED TO HAVE SOLD OR TRANSFERRED TITLE IN ANY SOFTWARE TO LICENSEE. The Software and the documentation shall remain ThetaRay’s property. All Intellectual Property Rights evidenced by or embodied in or related to the Software, and to any customizations, modifications, enhancements or derivatives thereof, are and shall be owned solely by ThetaRay. ThetaRay reserves all rights not expressly granted hereunder, and nothing in this Agreement constitutes a waiver of ThetaRay’s Intellectual Property Rights under any law.
- Restrictions on Use. Except for any license explicitly granted in this Agreement, Licensee shall have no other rights, express or implied, in the Software, and shall not, without ThetaRay’s prior written consent: (i) modify, decompile, create or derive or attempt to create or derive, by reverse engineering or otherwise, the source code from the object code supplied hereunder, nor shall it permit any third party to do so; (ii) copy the Software, except as expressly permitted; (iii) resell, lease, sublicense or distribute the Software to any person; (iv) use the Software to provide third parties with managed services or provide remote access to the Software to any person; (v) represent that Licensee possess any proprietary interest in the Software; (vi) not directly or indirectly, take any action to contest ThetaRay’s intellectual property rights or infringe them in any way. Upon breach of the above restrictions, any license granted to Licensee shall be deemed to be immediately and automatically revoked and waived by Licensee.
- Disclaimer. THE SOFTWARE IS PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. THETARAY DOES NOT WARRANT THAT THE SOFTWARE, OR ANY SERVICES, WILL BE DELIVERED OR PERFORM ERROR-FREE OR WITHOUT INTERRUPTION TO LICENSEE. WITHOUT LIMITING THE FOREGOING THETARAY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE AND DISCLAIMS ALL WARRANTIES AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF OTHERS.
- Limitation of Liability. IN NO EVENT SHALL THETARAY’S LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT, EXCEED THE AMOUNT PAID TO THETARAY BY LICENSEE DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM. WITHOUT DEROGATING FROM THE ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OR FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE. THESE LIMITATIONS SHALL APPLY WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- Term and Termination. The term of this Agreement is as set forth in the PO. Either party may terminate this Agreement (i) by giving written notice to the other party if the other party breaches a material provision of this Agreement and fails to cure the breach within 30 days after being given written notice thereof; or (ii) if the other party becomes the subject matter of any voluntary or involuntary petition pursuant to applicable bankruptcy or insolvency laws, or request for receivership, liquidation, or composition for the benefit of creditors and such petition, request or proceeding is not dismissed with sixty (60) days of filing. Upon termination of this Agreement for any reason: (a) all outstanding fees shall be accelerated and become due and payable by the effective date of terminations; (b) the Licenses shall expire; (c) Licensee shall return to ThetaRay or erase or otherwise destroy all copies of the Software in Licensee’s possession, including such that are fixed or resident in the memory or hard disks of Licensee’s computers, as well as all copies of the documentation; (d) at ThetaRay’s request, Licensee shall certify in writing to ThetaRay that all copies and partial copies of the Software have been either returned to ThetaRay or otherwise erased or destroyed and deleted from any computer, libraries or storage devices and are no longer and will not in the future be used by Licensee.
General Terms. This Agreement is governed by and construed in accordance with the State of Israel, without regard to the principles of conflict of laws. Any and all disputes and controversies arising out of or in connection with the Agreement shall be brought exclusively before the competent courts of Tel-Aviv, Israel. In the event of any termination of this Agreement, Sections 3-8 hereof shall survive such termination and continue in effect. Should any provision of this Agreement be held to be invalid, that provision shall be replaced with a valid provision implementing the intent of the parties at the time of the signing of this Agreement. Except for Licensee’s obligation to pay amounts due, neither party hereto shall be liable for any loss, damage, or penalty resulting from such party’s failure to perform its obligations hereunder when such failure is due to flood, earthquake, fire, acts of God, military insurrection, acts of terrorism, civil riot, or labor strikes. This Agreement constitutes the entire agreement between ThetaRay and Licensee and supersedes any previous agreements or representations, either oral or written. Licensee acknowledges that it has not relied upon any representations or warranties other than those expressly contained in this Agreement. This Agreement may be amended, terminated, or altered only by an instrument in writing signed by both parties. A party may not transfer, assign or novate its rights or obligations under this Agreement to any third party without the prior written approval of the other party, and any such purported assignment shall be null and void, except for an assignment and novation to an affiliated company or to a successor of all assets of a party via a merger or acquisition of substantially all assets of the applicable party. All notices given under this Agreement shall be in writing and shall be deemed to have been duly given: when delivered, if delivered by messenger during normal business hours of the recipient; when sent, if transmitted by facsimile transmission (receipt confirmed and with a confirmation copy sent by post) during normal business hours of the recipient; or on the third Business Day following posting, if posted by international air mail.