This Agreement (the "Agreement") is made and entered into as of ______, 201_, by and between Loom Systems Ltd. ("Loom") and _________ (the "Customer").
Whereas,Loom is the proprietary owner of certain software and know-how that has the ability to conduct searches of vast quantities of data in order to detect and highlight anomalies (collectively, the "Software"); and
Whereas,Customer is interested in receiving from Loom the right to use the Software and Loom has agreed to grant Customer such right, all in accordance with and subject to the terms and conditions set forth in this Agreement;
Now, therefore, based on the mutual promises and conditions contained in this Agreement, Loom and Customer agree as follows:
1. The Software and any other material (whether written or oral), products, deliverables and/or services provided by Loom under this Agreement (collectively, the "Loom Service") is provided to Customer subject to the terms of this Agreement. This Agreement forms a legally binding contract between Customer and Loom in relation to Customer's use of the Loom Service.
2. Customer may not use the Loom Service and may not accept the Agreement if Customer is a person barred from receiving the Loom Service under the laws of the State of Israel or other countries including the country in which Customer is a resident or from which Customer uses the Loom Service.
3. If Customer is agreeing to be bound by this Agreement on behalf of Customer's employer or other entity, Customer represents and warrants that Customer has full legal authority to bind Customer's employer or such entity to this Agreement. If Customer does not have the requisite authority, Customer may not accept the Agreement or use the Loom Service on behalf of Customer's employer or other entity.
2. Grant of Rights.
1. Subject to Customer’s compliance with the terms and conditions of this Agreement, Loom grants to Customer a limited right to access and use the Loom Service during the term of this Agreement, solely for Customer's internal use. Use of Loom Service for any other purpose shall require Loom's prior written consent and shall be subject to such terms (including pricing) to be separately agreed.
2. Customer acknowledges that the Loom Service includes components which are subject to the terms and conditions of certain “open source” software licenses. To the extent applicable, Loom will identify open source software included in the Loom Service in or through the Loom Service itself.
3.If Customer designates any of its customers as authorized users of Loom Services, Customer will be responsible for their use of the Loom Services. Accordingly, Customer must enter into valid, binding agreements with its customers that require them to comply with the applicable terms of this Agreement, including any conditions or restrictions with respect to use of, or access to, the Loom Services. For the avoidance of doubt, Customer's customers are not parties to, or third party beneficiaries under, this Agreement.
5.Loom shall make commercially reasonable efforts to ensure that the Loom Service will be accessible and functional on a continuous basis, with the exception of scheduled maintenance periods. The foregoing notwithstanding, Customer acknowledges and agrees that the Loom Service may be inaccessible or inoperable at any time and for any reason, due to a “Force Majeure” (as defined below) event. If Loom Service becomes inaccessible or is not fully functional, other than due to scheduled maintenance or "Force Majeure", Loom shall make reasonable commercial efforts to have qualified personnel respond and endeavor to remedy such unavailability or failure of functionality.
3. Customer Data
1. Customer will be solely responsible for uploading any data for the use of the Loom Services (any such data uploaded by Customer and/or by Customer's employees shall be referred to herein as “Customer Data”), and for such purpose Loom may provide Customer with certain tools for use in uploading Customer Data. In addition, Customer is solely responsible for providing any and all third party software and licenses needed for the use of the Loom Services. Loom shall deliver the applicable login instructions to the email address specified by Customer.
2. Loom has no obligation to monitor any content uploaded to the Loom Service. Nonetheless, if Loom deems such action necessary, Loom may: (i) remove Customer Data from the Loom Service; or (ii) suspend Customer's access to the Loom Services. Loom will make reasonable commercial efforts to alert Customer of the aforementioned action and give Customer a reasonable opportunity to cure Customer's breach, however if Loom determines in its sole discretion that Customer's actions endanger the operation of the Loom Service or of other users of Loom, Loom may suspend Customer access immediately without notice. Customer will continue to be charged for the Loom Service during any suspension period. Loom has no liability to Customer for removing or deleting Customer Data from or suspending Customer's access to any Loom Service as described in this Section 3.2.
3.Loom may remove or delete Customer Data within a reasonable period of time after the termination of this Agreement.
4. Customer Representations
Customer shall ensure that Customer's use of Loom Service is at all times compliant with Loom Acceptable use policy which may be found at Loom's website, as shall be updated from time-to-time, and all applicable laws and regulations. Customer represents and warrants to Loom that Customer possesses all rights required to lawfully provide Customer Data to Loom and allow Loom to provide the Loom Service in connection therewith, and further warrants and represents that the Customer Data and the display, access to and/or use of Customer Data does not infringe upon, misappropriate, or otherwise violate any intellectual property, proprietary, privacy or other rights of any third parties. Without derogating from any of Loom's rights and remedies under this Agreement and/or under law, Loom will be entitled, at its sole discretion, to immediately discontinue the Loom Service or any part thereof in the event of any alleged infringement, misappropriation or violation of any rights of any third parties in connection with Customer Data. Loom assumes no responsibility or liability for Customer Data, and Customer shall be solely responsible for Customer Data and the consequences of using, disclosing, storing, or transmitting it.
5. Retention of Title/IP Rights.
1. All materials, including but not limited to any computer software (in object code and source code form, but with the exception of Customer Data), data or information employed by Loom pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by Loom to provide the Loom Service, including without limitation all patent, copyright, trade secret and any other proprietary rights therein, are and shall remain the sole and exclusive property of Loom.
2. Customer Data, including without limitation all patent, copyright, trade secret and any other proprietary rights therein, is and shall remain Customer's sole and exclusive property. Customer hereby grants Loom a non-exclusive, worldwide, perpetual, irrevocable, royalty-free and fully sublicensable right (including any moral rights) and license to install, store, host, display, collect, use, copy, store, transmit, modify, create derivative works of and otherwise use Customer Data as necessary for performance of the Loom Services.
3.Further, it is hereby agreed that any and all inventions, developments, source codes, improvements, mask works, trade secrets, modifications, discoveries, concepts, ideas and/or designs, including any derivative works (irrespective of any support and/or assistance Loom may receive, will receive or has received from any third party), modifications and any proprietary information, which are invented, made, developed, discovered, conceived or created, in whole or in part, independently by Loom, or jointly with others, in connection to the Loom Service and/or any other confidential or proprietary information of Loom or which was provided by Loom to Customer, shall be the sole and exclusive property of Loom (collectively, "IP Rights").
6. Restrictions on Use.
Restrictions on Use. Customer’s use of the Loom Service is limited to that specifically and explicitly permitted in this Agreement. Customer will not, and will not allow, permit or assist any third party: (i) to reverse engineer, decompose, disassemble, re-engineer, or attempt to discover any source code or underlying ideas or algorithms of the Loom Service; (ii) provide, lease, rent, lend, sub-license, assign, delegate, or otherwise transfer or use or allow others to transfer or use the Loom Service for the benefit of any third party; and (iii) modify, enhance or otherwise change the Loom Service without Loom’s prior written consent.
Customer acknowledges and agrees that the Loom Service was developed at considerable time and expense by Loom and contains valuable trade secrets and confidential information of Loom. Accordingly, Customer agrees to maintain the confidentiality of any proprietary information received by Customer during, or prior to entering into, this Agreement, including, without limitation, the Loom Service and any know-how disclosed by Loom, trade secrets and other proprietary information, that Customer knows or should know is confidential or proprietary based on the circumstances surrounding the disclosure, including, without limitation, non-public technical and business information and all other information obtained during the use of the Loom Service as permitted hereunder (the "Confidential Information"). The restrictions herein shall not apply to the extent that such information is in the public domain or hereafter falls into the public domain through no fault of Customer. Customer agrees not to use said Confidential Information for any purpose except as necessary to fulfill Customer's obligations and exercise Customer's rights under this Agreement. Customer shall protect the secrecy of and avoid disclosure and unauthorized use of Loom's Confidential Information to the same degree that Customer takes to protect Customer's own confidential information and in no event less than reasonable care. All Confidential Information and any derivatives thereof are and shall remain the exclusive property of Loom. No license or other rights to Confidential Information is granted or implied hereby to have been granted to Customer.
8. Term and Termination.
1. The rights granted under this Agreement shall be in effect from the date Customer first accesses the Loom Service and shall remain in effect until Customer ceases to use the Loom Service in accordance with the terms of Section 8.2 below, unless earlier terminated in accordance with the terms herein.
2. Either party may terminate this Agreement at any time upon written notice to the other party. If Customer wants to terminate this Agreement, Customer may terminate it by ceasing to use the Loom Service and deleting the Account.
3. Loom may terminate this Agreement immediately upon written notice to Customer if Customer has materially breached this Agreement.
4. Effects of Termination. Upon expiration or termination of this Agreement, Customer agrees to destroy all copies of the Loom Service within Customer's possession, custody or control of Customer, Customer's authorized users and Customer's organization. Upon termination all rights and obligations pursuant to this Agreement including the licenses shall immediately terminate, except for any provisions of this Agreement that are intended by their nature to survive termination, including, without limitation, Sections 4 ("Customer Representations"), 5 (“Retention of Title/IP Rights”), 6 (“Restriction on Use”), 7 (“Confidentiality”), 8 (“Term and Termination”), 9 (“Warranties”), 10 (“Liability”), 11 ("Indemnification") and 12 ("Miscellaneous") hereunder, which shall survive the expiration or termination of this Agreement.
No Waiver. Termination of this Agreement under this Section 8 shall be in addition to, and not a waiver of, any remedy at law or in equity available to Loom arising from Customer’s breach of this Agreement or any agreement relating to the Loom Service.
customer expressly acknowledges and agrees that loom is not providing any warranty or guarantee with respect to the Loom Service and that the use of the Loom Service is at customer’s sole risk and that the entire risk as to title, non-infringement, quiet enjoyment, satisfactory quality, performance and accuracy is with customer.
accordingly, to the maximum extent permitted by applicable law, the Loom Service and any information provided under this agreement are provided “as is” and loom and its affiliates hereby disclaim all warranties and conditions, either express, implied or statutory, including without limitation, any (if any) implied warranties or conditions of merchantability, fitness for a particular purpose, lack of viruses, title, non-infringement, quiet enjoyment or that the Loom Service will perform error-free or uninterrupted.
1. Loom shall have no obligation to monitor Customer Data for accuracy or completeness, all of which are the sole responsibility of Customer. Customer further acknowledges that Loom will not have any direct or indirect liability or obligation to any of Customer's customers.
2. Loom strives to keep Loom Service secure, but cannot guarantee that it will always be successful at doing so, given the nature of the Internet. Accordingly Loom will have no liability to Customer for any unauthorized access, copying or use of the Customer Data, or any resulting corruption, deletion, destruction or loss thereof; provided that Loom agrees that it will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data and those safeguards will include, but will not be limited to, measures for preventing unauthorized access, use, modification or disclosure of the Customer Data by Loom personnel. Without derogating from the foregoing and from any other term of this Agreement, in no event shall Loom be liable for anything in connection with Customer Data, until Customer Data has actually been received by Loom and stored in Loom's servers.
3. in no event shall loom or anyone on its behalf be liable for any indirect, consequential, incidental, special or punitive damages of any kind, including without limitation damages for loss of business or profits, business interruption, loss of business information or loss or damages to goodwill, in connection with this agreement regardless of the cause and whether arising in contract (including fundamental breach), tort (including negligence), or otherwise, even if loom has been advised of the possibility of such damages or loss. notwithstanding anything to the contrary herein, under no circumstances will loom’s total and aggregate liability to customer from all causes of action of any kind, including without limitation contract, tort, negligence, strict liability, breach of warranty, or otherwise, arising out of or related to this agreement, exceed the sum of us$ 100.
To the maximum extent permitted by law, Customer agrees to defend, indemnify and hold harmless Loom, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of or accruing from (a) Customer's use of the Loom Service, (b) any representations and warranties made by the Customer hereunder, being incorrect or misleading, and (c) any non-compliance by Customer with this Agreement.
1. This Agreement is governed by the laws of Israel, without application of its principles of conflicts of law. The Parties irrevocably consent to the exclusive jurisdiction of the competent courts in Tel Aviv, Israel, to adjudicate all disputes arising from or related to this Agreement to the exclusion of the jurisdiction of any other court; however, Loom shall retain the right to institute proceedings, including interlocutory and/or injunctive relief, in any other territory.
2. Loom may assign this Agreement without notice to Customer. Customer shall not assign this Agreement or Customer's rights hereunder without the prior written consent of Loom (such consent may be withheld or conditioned at Loom's sole discretion) and any assignment without Loom's prior written consent shall be null and void and of no effect. Loom may perform all obligations to be performed under this Agreement directly or may have some or all obligations performed by its affiliates, contractors or subcontractors.
3. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against regulatory or public policy, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall in no way be affected, impaired or invalidated.
4. The terms and provisions herein contained constitute the entire Agreement between the parties with respect to the subject matters hereof and shall supersede all previous communications, oral or written, between the parties hereto with respect to the subject matters hereof. No modification, amendment or correction to this Agreement shall be binding upon either of the parties hereto unless in writing and signed by the duly authorized representatives of both parties.
5. No waiver of any rights by any party hereto shall be construed as a waiver of the same or any other right at any prior or subsequent time. Furthermore, no waiver or delay on the part of Loom in exercising any power or right hereunder, and no forbearance or indulgence of Loom granted to the Customer, shall in any way restrict or diminish the full rights and powers of Loom under this Agreement, or operate as a waiver of any breach of any of the terms or conditions of this Agreement.
6. Loom shall not be liable for any delay in performing its obligations (except for payment obligations) hereunder if such delay is caused by factors beyond its control, including without limitation acts of God, war, riot, fire, explosion, flood, earthquake or technical or technological failure beyond such Loom's reasonable control ("Force Majeure"). The performance of such Loom's obligations shall be suspended during the period of Force Majeure and Loom shall be granted an extension of time for performance equal to the period of the delay.
7. All notices permitted or required hereunder shall be in writing and shall be sent by facsimile, or personal delivery at the facsimile number, or address as either party may specify. Notices sent to Loom shall be addressed to Loom Systems Ltd., 114 Igal Alon St., Tel Aviv, Israel and to Customer's address as provided by Customer, or to the address otherwise designated from time to time in writing by the parties. Any notices provided will be deemed as being received on the date of transmission of facsimile, e-mail, or personal delivery unless given outside normal business hours in which case such notice shall be deemed as being given on the next business day, provided that if any such notice fails to reach Customer because the information provided by Customer or on Customer's behalf to Loom is not accurate or up to date, notice shall be deemed sufficiently delivered on the date it was sent.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized and empowered officers or representatives, this ___ day of ____________, 201__.
Loom Systems Ltd.
|By: ___________||By: ___________|
|Title: __________||Title: __________|