SAAS Agreement

 

DropGecko (the "Company") and Clients (the “Client”) (each, a “Party”, and together, the “Parties”) do hereby agree and covenant with each other as follows:

Recitals

A.           The company is the owner of certain proprietary computer software known as DropGecko that include tools, content, and resources that enables to automate sales and marketing processes (the “Software”).

B.            Company provides and sells subscriptions to access and use the Software via https://app.DropGecko.com or a website notified to Client from time to time (the “Services”).

C.            Client desires to use the Services for Client’s internal business purposes, specifically, use by Client’s employees and/or personnel engaged by Client to provide it services (“Authorized Users”) to facilitate automation of sales and marketing processes, pursuant to the terms and conditions set forth herein.

D.           Company is willing to provide access to the Services for the Client’s internal business use pursuant to the terms and conditions set forth herein. 

NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the parties agree as follows:

1. Services

1.1          Company grants to Client and Client accepts from Company, a limited, non-exclusive, non-transferable right to access and use and permit the Authorized Users to access and use the Services solely for Client’s internal business use.

1.2          Client shall not, and shall not permit anyone to: (i) copy or republish the Services or Software, (ii) make the Services available to any person other than the Authorized Users, (iii) use or access the Services to provide service bureau, time-sharing or other computer hosting services to third parties, (iv) modify or create derivative works based on the Services or Documentation, (v) remove, modify, or obscure any copyright, trademark or other proprietary notices contained in the Software used to provide the Services or in the Documentation, (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the Services, or (vii) access the Service or use the Documentation in order to develop a similar product or competitive product. For the purposes of this Agreement, “Documentation” shall mean user guides, online help, release notes, training materials and other documentation provided or made available by Company to Client regarding the use or operation of the Services.

In the event that it suspects any breach of the requirements of this Section 1.2, including without limitation by Authorized Users, Company may suspend Client’s access to the Services without advanced notice, in addition to such other remedies as Company may have.

2. Client obligations

2.1          Client shall provide commercially reasonable information and assistance to Company to enable Company to deliver the Services, and shall further comply with instructions provided by Company to Client in connection with the provision of Services hereunder. Client acknowledges that the provision of the Services in the manner provided in this Agreement may depend upon the accuracy and timeliness of such information and assistance.  

2.2          Client shall take reasonable steps to prevent unauthorized access to the Service, including without limitation by protecting its passwords and other log-in information. Client shall notify Company immediately of any known or suspected unauthorized use of the Service or breach of its security and shall use best efforts to stop said breach.

2.3          Client shall comply with all applicable local, state, national and foreign laws in connection with its use of the Services, including those laws related to data privacy, international communications and the transition of technical and personal data. Client acknowledges that Company exercises no control over the content of the information transmitted by Client or the Approved Users through the Services.

2.4          Except as may be expressly permitted by applicable law, Client will not, and will not permit anyone else to: (i) Use the Service to defame, libel, disparage, threaten, harass, intimidate or abuse anyone or promote violence; (ii) Use the Service to distribute, or otherwise make available or transmit any software or other computer files that contain a virus, trojan horse, worm or other harmful or destructive component; (iii) Violate the contractual, intellectual property or other rights of any party; (iv) Promote or perpetrate any illegal activity, including non-authorized access to files, or non-authorized download or distribution of any files; (v) Publish, display, disclose, rent, lease, modify, copy, loan, distribute, or create derivative works based on the Software or any component thereof, whether for commercial or non-commercial purposes; (vi) Transfer any files that: contain child pornography, are false or misleading, Client shall not copy and/or transfer, infringe on intellectual property rights, violate any privacy rights, including data protection rights, infringe on or violate any applicable law or regulation.

Company reserves the right to investigate and/or remove, without warning, any materials from its servers or block access to the Services, when Company finds, at its sole discretion, or receive substantiated and valid complaints, that Client is using the Service in violation of the restrictions contained herein, or act in violation of applicable law or regulation. In addition, please note that Company reserves the right to disclose materials to the extent necessary: (i) in connection with legal proceedings instituted against Company and/or court order, (ii) to abide by any law, regulation or government request, (iii) to safeguard national security, defense, public security or public health and (iv) to enforce the terms of this Agreement.

 

3. Intellectual Property Rights

3.1          Client acknowledges that all right, title, and interest in an to the Services and the Software, together with its codes, derivative work, organization, structure, interfaces, any documentation, data, trade names, trademarks, or other related materials (collectively, the “Company IP”), is, and at all times shall remain, the sole and exclusive property of Company. The Company IP contains trade secrets and proprietary information owned by Company and is protected by applicable laws and treaties relating to intellectual property). Except the right to use the Services, as expressly provided herein, this Agreement does not grant to Client any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered) or any other rights or licenses with respect to the Services or the Software.

3.2          Client retains ownership and intellectual property rights in and to its Client Content. Except as expressly set forth herein, nothing in this Agreement shall be construed as transferring any rights, title or interests to such Client Content to Company or any third party. “Client Content” means all content of any postings, data or transmissions using the Services, or any other data and materials provided by Client to Company for use in connection with the Services, including Client applications, data files, and graphics.  

3.3          Company shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services and the Software any suggestions, enhancements requests, recommendations or other feedback (“Feedback”) provided by Client, including Authorized Users, relating to the operation of the Services. Company has not agreed to and does not agree to treat as confidential any Feedback Client or Authorized Users provide to Company, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Company’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Client or the Authorized User in question.

 

4. Billing and Payment

4.1          The provision of any Services is subject to Client’s payment in full of the applicable Service Fee, as set forth in Pricing.

4.2          Unless otherwise expressly stated herein, all payments hereunder are quoted and shall be paid in $US. Payments shall be made without any right of set-off or deduction and are irrevocable and (except as expressly set forth herein) nonrefundable. All invoices are prepaid.

4.3.        Company shall bill Client for applicable taxes as a separate line item on each invoice. All sales and use taxes, value added taxes (VAT), or similar charges, withholding or duties relating to Client’s purchase and use of the Services, shall be borne and paid by Client. Client shall not be liable for taxes based on Company’s net income, capital or corporate franchise.

 

 

5. Confidentiality

5.1.        “Confidential Information” means any information of a confidential and/or proprietary nature, whether in written, oral, graphic, electromagnetic, digital, or other form provided by one party (“Discloser”) to the other party (“Recipient”) or to which Recipient has been provided access, which relates to the business, technology, products, marketing and/or activities of the Discloser and its employees, subcontractors, consultants, agents, accountants and other professional advisers (collectively the ‘Representatives’). 

5.2.        During the term of this Agreement and for a period of 5 years thereafter (perpetually in the case of the Software and the Services), each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each party shall use at least the same degree of care, but not less than reasonable degree of care, it uses to prevent the disclosure of its own Confidential Information to prevent the disclosure of Confidential Information of the other party. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information. Either party may disclose Confidential Information of the other party on a need-to-know basis to Representatives who are subject to confidentiality undertakings at least as restrictive as those contained herein.

5.3         Confidential Information excludes information that: (a) is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the Recipient, (b) is known to the Recipient, without restriction, at the time of disclosure or becomes known to the Recipient, without restriction, from a source other than the Discloser not bound by confidentiality obligations to the Discloser, or (c) is independently developed by the Recipient without use of the Confidential Information as demonstrated by the written records of the Recipient. The Recipient may disclose Confidential Information of the other party to the extent such disclosure is required by law or order of a court or other government authority, provided that the Recipient shall use reasonable efforts to promptly notify the other party prior to such disclosure to enable the Discloser to seek a protective order or otherwise prevent or restrict such disclosure. Each party may disclose the existence of this Agreement and the relationships of the parties, but agrees that the specific terms of this Agreement will be treated as Confidential Information; provided however, that each party may disclose the term of this Agreement to those with a need to know and under duty of confidentiality such as accountants, lawyers, bankers, and investors.

5.4         Client agrees that breach of this Article 5 would cause Company irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Company will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

5.5          This Agreement does not transfer ownership of Confidential Information or grant a license thereto. The company will retain all right, title, and interest in and to all Confidential Information. Upon termination of this Agreement, Client shall return all copies of Confidential Information to Company or certify, in writing, the destruction thereof.

 

 

6. Term and Termination

6.1          This Agreement shall be effective as of the Effective Date and shall continue for an initial term of one (1) year (the “Initial Term”). Following the Initial Term, this Agreement shall automatically renew for successive one (1) year terms (each a “Renewal Term”, and together with the Initial Term, the “Term”), unless: (i) either party provides the other with thirty (30) days written notice prior to the end of any term of its intent not to renew, or (ii) this Agreement is terminated in accordance with remaining subsections 6.2-6.4 below.

6.2          Either party may terminate this Agreement with immediate effect if the other party materially breaches this Agreement and such breach remains uncured (to the extent that the breach can be cured) fifteen (15) days after having received written notice thereof.

6.3          In the event that either party becomes liquidated, dissolved, bankrupt or insolvent, whether voluntarily or involuntarily, or shall take any action to be so declared, the other party shall have the right to immediately terminate this Agreement.

6.4.        The company may terminate this Agreement for convenience upon providing Client thirty (30) days advance notice (email sufficient).

6.5          Upon termination of this Agreement, Client shall cease all use of the Service and delete, destroy, or return all copies of the Documentation in its possession or control. Company reserves the right to permanently delete any Client Content and Client agrees to waive any legal or equitable rights or remedies it may have against Company with respect to Client Content that is deleted in connection thereto. 

6.6          The respective rights and obligations of the parties hereunder, including under Sections 3 through 9, shall survive any termination of this Agreement or the expiration of the Term to the extent necessary to the intended preservation of such rights and obligations.

 

 

7. Warranty Disclaimer and Limitation of Liability

7.1          CLIENT ACKNOWLEDGES AND UNDERSTANDS THAT EXCEPT AS EXPRESSLY SET FORTH HEREIN: (I) THE SOFTWARE AND SERVICES ARE PROVIDED ON AN "AS IS" BASIS WITHOUT ANY WARRANTIES WHATSOEVER CONCERNING THE PERFORMANCE OF THE SERVICES; AND (II) ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, ACCURACY, RELIABILITY AND QUALITY OF THE SERVICE AND SOFTWARE ARE HEREBY EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND CLIENT HEREBY EXPRESSLY WAIVES ALL SUCH WARRANTIES. COMPANY DOES NOT WARRANT THAT THE SOFTWARE AND THE SERVICES WILL MEET CLIENT'S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. COMPANY WILL NOT BE LIABLE OR RESPONSIBLE FOR: (a) ANY TECHNICAL PROBLEMS OF THE INTERNET (INCLUDING WITHOUT LIMITATION SLOW INTERNET CONNECTIONS OR OUTAGES); AND/OR (b) ANY ISSUE THAT IS ATTRIBUTABLE TO CLIENT’S INTERNET OR DATA SERVICE PROVIDER.

7.2.        COMPANY ASSUMES NO LIABILITY FOR THE SOFTWARE AND SERVICES. COMPANY WILL NOT BE LIABLE FOR ANY DAMAGES OR INJURIES TO ANY PERSONS OR RESULTING FROM ANY CAUSE WHATSOEVER. CLIENT FURTHER ACKNOWLEDGE THAT IN NO EVENT WILL COMPANY BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF DATA, LOSS OF USE OR LOSS OF REVENUE OR PROFIT AND COMPANY FURTHER DISCLAIMS ANY AND ALL LIABILITY FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES), OR OTHER SIMILAR DAMAGES REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. NOTWITHSTANDING THE ABOVE, IF COMPANY IS FOUND TO BE LIABLE BY A FINAL JUDICIAL RULING, COMPANY'S LIABILITY TO CLIENT OR TO ANY THIRD PARTY IS LIMITED TO THE CONSIDERATION CLIENT ACTUALLY PAID TO COMPANY HEREUNDER DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

ACTION AGAINST COMPANY ARISING UNDER OR RELATING TO THIS AGREEMENT, REGARDLESS OF ITS FORM, MAY BE BROUGHT BY CLIENT OR ANY THIRD PARTY MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION HAS ACCRUED AND IN ANY EVENT NO LATER THAN TWELVE (12) MONTHS AFTER TERMINATION OF THE AGREEMENT. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND ARE FUNDAMENTAL ELEMENTS OF THE BARGAIN BETWEEN THE PARTIES.

 

8. Indemnification

Client shall defend, indemnify, and hold harmless Company and the Client Indemnified Parties (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Client's alleged or actual use of, misuse of, or failure to use the Service, including without limitation: (a) claims by Authorized Users or by Client's employees, as well as by Client’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Client Content; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Service through Client’s account, including without limitation by Client Content; and (d) claims that use of the Service through Client’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to Company’s negligence. Client’s obligations set forth in this Article 8 include retention and payment of attorneys and payment of court costs, as well as a settlement at Client’s expense and payment of judgments. The company will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Company Indemnified Parties” are Company’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)

 

 

9. Miscellaneous

a.            The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing contained in this Agreement, nor any action taken by any party to this Agreement, shall be deemed to constitute either party (or any of such party's employees, agents, or representatives) an employee, or legal representative of the other party, nor to create any joint venture, association, or syndication among or between the parties.

b.            Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

c.            In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

d.            This Agreement and any rights or obligations hereunder may not be transferred or assigned by Client without the prior written consent of Company but may be transferred or assigned by Company. Except as otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and permitted assigns, and the agreements and undertakings contained herein shall be deemed to be made by and be binding upon such heirs, executors, administrators, successors, legal representatives and permitted assigns.

e.            No change, modification, alteration or addition of or to any provision of this Agreement shall be binding unless in writing and executed by or on behalf of both Parties by a duly authorized representative.

f.             This Agreement constitutes the entire understanding between the Parties relating to the subject matter hereof and unless any representation or warranty made about this Agreement was made fraudulently and, save as may be expressly referred to or referenced herein, supersedes all prior representations, writings, negotiations or understandings with respect hereto.

g.            No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.

h.            The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.

i.             This Agreement shall be construed, controlled and governed by the laws of Israel, without regard to conflicts of law principles or provisions. The courts of Tel-Aviv, Israel have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement). This Clause is for the benefit of Company only. As a result, Company shall not be prevented from taking actions in any other courts in any jurisdiction where Client is domiciled, incorporated or holds assets.

j.             Client shall not and shall no permit any third party to: (a) access or use the Services in violation of any Israeli law or regulation; or (b) export any software provided by Company or otherwise remove it from Israel except in compliance with all applicable Israel laws and regulations. Without limiting the generality of the foregoing, Client shall not permit any third party to access or use the Service in, or export such software to, country in any manner prohibited by the Israeli applicable export laws, restrictions and regulations, which among others, prohibit export or diversion of certain products and technology to certain embargoed countries, as may be amended and/or updated from time to time ("Embargoed Countries"; as of the Effective Date of this Agreement, the Embargoed Countries include: Iran, Syria, Lebanon and Iraq) (collectively the "Export Laws").