End-User Licence Agreement
Last Update: July 4, 2017
This Agreement (the "Agreement") is made and entered into as of 2017, by and between Fast Applications Ltd. ("Fast") and site and web application user of freightools.com, including of Freightools Systems (system.freightools.com), (the "Customer")
WHEREAS, Fast is the proprietary owner of certain software and know-how that has the ability to manage and evaluate processes related to the global supply chain and social networking activities related to the supply chain (collectively, the "Software"); and
WHEREAS, Customer is interested in receiving from Fast the right to use the Software and Fast 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, Fast and Customer agree as follows:
1.1. The Software and any other material (whether written or oral), products, deliverables and/or services provided by Fast under this Agreement (collectively, the "Fast Service") is provided to Customer subject to the terms of this Agreement. This Agreement forms a legally binding contract between Customer and Fast in relation to Customer's use of the Fast Service.
1.2. Customer may not use the Fast Service and may not accept the Agreement if Customer is a person barred from receiving the Fast 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 Fast Service.
1.3. 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 Fast Service on behalf of Customer's employer or other entity.
2. GRANT OF RIGHTS.
2.1. Subject to Customer’s compliance with the terms and conditions of this Agreement, Fast grants to Customer a limited right to access and use the Fast Service during the term of this Agreement, solely for Customer's internal use. Use of Fast Service for any other purpose shall require Fast's prior written consent and shall be subject to such terms (including pricing) to be separately agreed.
2.2. Customer acknowledges that the Fast Service includes components which are subject to the terms and conditions of certain “open source” software licenses. To the extent applicable, Fast will identify open source software included in the Fast Service in or through the Fast Service itself.
2.3. If Customer designates any of its customers as authorized users of Fast Services, Customer will be responsible for their use of the Fast 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 Fast Services. For the avoidance of doubt, Customer's customers are not parties to, or third party beneficiaries under, this Agreement.
2.5. Fast shall make commercially reasonable efforts to ensure that the Fast 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 Fast Service may be inaccessible or inoperable at any time and for any reason, due to a “Force Majeure” (as defined below) event. If Fast Service becomes inaccessible or is not fully functional, other than due to scheduled maintenance or "Force Majeure", Fast shall make reasonable commercial efforts to have qualified personnel respond and endeavor to remedy such unavailability or failure of functionality.
3. CUSTOMER DATA
3.1. Customer will be solely responsible for uploading any data for the use of the Fast 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 Fast 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 Fast Services. Fast shall deliver the applicable login instructions to the email address specified by Customer.
3.2. Fast has no obligation to monitor any content uploaded to the Fast Service. Nonetheless, if Fast deems such action necessary, Fast may: (i) remove Customer Data from the Fast Service; or (ii) suspend Customer's access to the Fast Services. Fast 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 Fast determines in its sole discretion that Customer's actions endanger the operation of the Fast Service or of other users of Fast, Fast may suspend Customer access immediately without notice. Customer will continue to be charged for the Fast Service during any suspension period. Fast has no liability to Customer for removing or deleting Customer Data from or suspending Customer's access to any Fast Service as described in this Section 3.2.
3.3. Fast 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 Fast Service is at all times compliant with Fast Acceptable Use Policy, as shall be updated from time-to-time, and all applicable laws and regulations. Customer represents and warrants to Fast that Customer possesses all rights required to lawfully provide Customer Data to Fast and allow Fast to provide the Fast 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 Fast's rights and remedies under this Agreement and/or under law, Fast will be entitled, at its sole discretion, to immediately discontinue the Fast 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. Fast 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.
5.1. 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 Fast pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by Fast to provide the Fast 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 Fast.
5.2. 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 Fast 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 Fast Services.
5.3. 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 Fast 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 Fast, or jointly with others, in connection to the Fast Service and/or any other confidential or proprietary information of Fast or which was provided by Fast to Customer, shall be the sole and exclusive property of Fast (collectively, "IP Rights").
6. RESTRICTIONS ON USE.
Restrictions on Use. Customer’s use of the Fast 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 Fast Service;
(ii) provide, lease, rent, lend, sub-license, assign, delegate, or otherwise transfer or use or allow others to transfer or use the Fast Service for the benefit of any third party; and
(iii) modify, enhance or otherwise change the Fast Service without Fast’s prior written consent.
Customer acknowledges and agrees that the Fast Service was developed at considerable time and expense by Fast and contains valuable trade secrets and confidential information of Fast. 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 Fast Service and any know-how disclosed by Fast, 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 Fast 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 Fast'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 Fast. No license or other rights to Confidential Information is granted or implied hereby to have been granted to Customer.
8. TERM AND TERMINATION.
8.1. The rights granted under this Agreement shall be in effect from the date Customer first accesses the Fast Service and shall remain in effect until Customer ceases to use the Fast Service in accordance with the terms of Section 8.2 below, unless earlier terminated in accordance with the terms herein.
8.2. 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 Fast Service and deleting the Account.
8.3. Fast may terminate this Agreement immediately upon written notice to Customer if Customer has materially breached this Agreement.
8.4. Effects of Termination. Upon expiration or termination of this Agreement, Customer agrees to destroy all copies of the Fast 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.
8.5. 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 Fast arising from Customer’s breach of this Agreement or any agreement relating to the Fast Service.
CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT FAST IS NOT PROVIDING ANY WARRANTY OR GUARANTEE WITH RESPECT TO THE FAST SERVICE AND THAT THE USE OF THE FAST 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 FAST SERVICE AND ANY INFORMATION PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND FAST 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, NONINFRINGEMENT, QUIET ENJOYMENT OR THAT THE FAST SERVICE WILL PERFORM ERROR-FREE OR UNINTERRUPTED.
10.1. Fast 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 Fast will not have any direct or indirect liability or obligation to any of Customer's customers.
10.2. Fast strives to keep Fast Service secure, but cannot guarantee that it will always be successful at doing so, given the nature of the Internet. Accordingly Fast 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 Fast 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 Fast personnel. Without derogating from the foregoing and from any other term of this Agreement, in no event shall Fast be liable for anything in connection with Customer Data, until Customer Data has actually been received by Fast and stored in Fast's servers.
10.3. IN NO EVENT SHALL FAST 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 FAST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, UNDER NO CIRCUMSTANCES WILL FAST’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 THE TOTAL AMOUNT PAYED BY THE CUSTOMER IN THAT CALENDAR PERIOD.
To the maximum extent permitted by law, Customer agrees to defend, indemnify and hold harmless Fast, 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 Fast 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.
12.1. 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, Fast shall retain the right to institute proceedings, including interlocutory and/or injunctive relief, in any other territory.
12.2. Fast 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 Fast (such consent may be withheld or conditioned at Fast's sole discretion) and any assignment without Fast's prior written consent shall be null and void and of no effect. Fast 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.
12.3. 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.
12.4. 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.
12.5. 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 Fast in exercising any power or right hereunder, and no forbearance or indulgence of Fast granted to the Customer, shall in any way restrict or diminish the full rights and powers of Fast under this Agreement, or operate as a waiver of any breach of any of the terms or conditions of this Agreement.
12.6. Fast 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 Fast's reasonable control ("Force Majeure"). The performance of such Fast's obligations shall be suspended during the period of Force Majeure and Fast shall be granted an extension of time for performance equal to the period of the delay.
12.7. 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 Fast shall be addressed to Fast 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 Fast is not accurate or up to date, notice shall be deemed sufficiently delivered on the date it was sent.