SOFTWARE LICENSE AGREEMENT
This Software License Agreement (“Agreement”) is entered into by and between Pairzon Ltd., a company registered in the State of Israel, with a place of business at 114 Yigal Alon st, Tel Aviv Israel (“Pairzon”) and the entity signing the Order Form (“Customer”).
WHEREAS Pairzon is the owner of certain proprietary technology defined herein as the “Technology”; and WHEREAS Customer desires to receive a right to access and use the Technology in order to utilize it; and WHEREAS Pairzon is willing to grant Customer such rights under the terms and conditions set forth herein.
NOW, THEREFORE, the parties hereby agree as follows:
1. LICENSE
1.1 Subject to the terms and conditions of this Agreement, including, without limitation, Customer’s payment of the fees set forth herein, Pairzon hereby grants Customer a non-exclusive, non-transferable and limited right throughout the applicable term, to access the Technology in order to use it. Such access and use shall limited only within the scope of access and use as explicitly set forth in this Agreement. Customer may exercise the rights granted herein only through its employees and contractors, and only for its internal benefit.
2. SUPPORT SERVICES
2.1 During the applicable term, Pairzon will provide Customer with certain maintenance and support services as described in the service level agreement available at https://pairzon.com/sla/ (“Service Level Agreement” or “SLA”), hereby incorporated as an integral part of this Agreement.
2.2 Pairzon will provide initial training for Customer’s relevant employees to effectively use the Technology. The duration and content of said initial training will be mutually agreed by the parties. The training will be conducted through on-line teleconferencing.
3. INTELLECTUAL PROPERTY RIGHTS & RESTRICTIONS
3.1 All Intellectual Property Rights in the Technology and any part thereof, including any and all derivatives, changes and improvements thereof lie exclusively with Pairzon (or its licensors, in the event of third-party software). Customer shall use the Technology expressly as permitted herein and shall not (i) attempt to infiltrate or hack the Technology, or any part thereof for any purpose nor shall it reverse-engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Technology; (ii) represent that it possess any proprietary interest in the Technology; (iii) not directly or indirectly, take any action to contest Pairzon’s Intellectual Property Rights or infringe them in any way; (iv) except as specifically permitted hereunder, use the name, trademarks, trade-names, and logos of Pairzon; (v) use the Technology to provide third parties with managed services or any other services whether or not in return for remuneration of any kind; (vi) remove, alter, or obscure any copyright, trademarks, trade names, logos, and other proprietary rights notices of Pairzon or third-parties contained on or within the Technology; (vii) distribute, copy, manufacture, rent, lease, adapt, lend, trade-in, translate or otherwise make available to any third party, stand-alone copies of the Technology or any part thereof; (viii) transfer, use or export the Technology in violation of any applicable laws or regulations of any government or governmental agency; (ix) modify or create derivative works of the Technology or any part thereof; and (x) use any portion of the Technology to create a software product that is the same or substantially similar to the Technology or any part thereof. Nothing in this Agreement shall constitute a waiver of Pairzon’s Intellectual Property Rights under any law, or be in any way construed or interpreted as such. No rights or licenses are granted except as expressly set forth herein
3.2 “Intellectual Property Rights” means all intangible legal rights, titles and interests evidenced by or embodied in all: (i) inventions (regardless of patentability and whether or not reduced to practice), improvements thereto, and patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations in part, revisions, extensions, and reexaminations thereof; (ii) trademarks, service marks, trade dress, logos, trade names, and corporate names, together with translations, adaptations, derivations, and combinations thereof, including goodwill associated therewith, and applications, registrations, and renewals in connection therewith; (iii) any work of authorship, regardless of copyright ability, copyrightable works, copyrights (including moral rights) and applications, registrations, and renewals in connection therewith; (iv) trade secrets and Confidential Information; and (vi) all rights associated with the foregoing and all other proprietary rights and any other similar rights, in each case on a worldwide basis, and copies and tangible embodiments thereof, in whatever form or medium.
3.3 Customer Content shall be provided by Customer. Customer will at all times retain all rights, title, and interests in and to all Customer content. Customer Content means information, data (including Personal Data as that term is defined in the Data Processing Addendum (as defined below)) and other material, in any format, provided by Customer or Customer’s Users that reside in, or run on or through, the Technology.
4. PAIRZON’S REPRESENTATIONS AND WARRANTIES
Pairzon hereby represents and warrants to Customer as follows:
4.1 It is the sole and exclusive owner of the intellectual property rights and/or has been granted the required licenses for the lawful use of the Technology and that to the best of its knowledge, there is no legal and/or contractual and/or any other restriction, which precludes it from providing Customer with the right to use the Technology as set forth in this Agreement.
4.2 that the Technology shall materially conform to the functional specifications in Exhibit A, which is hereby incorporated as an integral part of this Agreement. Pairzon’s sole liability and Customer’s exclusive remedy for any breach of this warranty shall be to use reasonable commercial efforts to remedy any failure of the Technology to materially conform to Exhibit A in accordance with the terms of the SLA, provided that (i) Customer is not otherwise in breach of this Agreement, and (ii) Customer has reported in writing to Pairzon the claimed failure promptly upon discovery.
5. DISCLAIMER OF WARRANTY
EXCEPT FOR THE WARRANTIES PROVIDED IN THIS AGREEMENT, PAIRZON PROVIDES THE USAGE OF THE TECHNOLOGY TO CUSTOMER AND ANY SUPPORT SERVICES ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE OR ACCURACY. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, PAIRZON DOES NOT WARRANT THAT THE TECHNOLOGY OR ANY SERVICES RELATED THERETO WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION.
6. CUSTOMER’S REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
Customer hereby represents and warrants to Pairzon as follows:
6.1 It has no knowledge of any legal and/or contractual and/or other restriction to prevent it from licensing or using the Technology.
6.2 It is and will continue to comply with all applicable legal requirements regarding to: (i) the required disclosure to its customers in connection with the generation of digital receipts and/or invoices by Pairzon and their delivery to Customer’s customers through Pairzon; (ii) the Customer’s current and future use of the data collected by it from its customers via use of the Technology and in accordance with the terms of this Agreement and the Customer’s instructions as they may be provided to Pairzon from time to time.
6.3 It complies with all the required data protection measures to ensure that Customer’s computing systems and its interface with the Technology are secured. Customer shall be solely responsible for any damages caused to Pairzon and/or to any of the Customer’s customers, in the event that any third party will gain access to the information collected in Customer’s systems through the use of the Technology and a result of such exposure.
6.4 To comply with the provisions of all applicable laws and regulations, including (without limitation) those regarding privacy, data protection and the distribution of advertisements to recipients whose information Customer received from the Service Provider.
6.5 Without derogating from the generality of the above, to obtain all required permissions and authorizations for the transfer of its customers’ personal data and other data to Pairzon and for Pairzon’s use of said data, as required by and in accordance with the provisions of this Agreement and any and all applicable privacy and data protection laws.
6.6 Not to insert nor permit the insertion or introduction of any Malicious Code (as defined below) into the Technology. Customer will take all commercially reasonable actions and precautions to prevent the introduction and proliferation of Malicious Code into the Technology. “Malicious Code” means (i) any code, program, or sub-program which causes damage or maliciously interferes with the operation of a computer software containing the code, program or sub-program, or halts, disables, or interferes with the operation of the Technology, or (ii) any device, method, or token that permits any person to circumvent without authorization the normal security of the Technology.
6.8 Without derogating from any other provision of this Agreement, it shall fully comply with and adhere to the technical specifications set forth in Exhibit B, hereby incorporated as an integral part of this Agreement.
6.9 The party signing this Agreement on its behalf is an authorized signatory, authorized to commit on behalf of and bind the Customer with her or his signature.
7. THIRD-PARTY LICENSES
The Technology includes certain third-party software and materials (“Third-Party Software”) that are subject to their respective third-party licenses and the title to which remains with the applicable third-party (“Third-Party Licenses”). By executing this Agreement, Customer undertakes to comply with the terms and condition of the Third-Party Licenses, as may be amended from time to time. In the event of any inconsistencies or conflicting provisions between the provisions of the Third-Party Licenses and the provisions of this Agreement, the provisions of the Third-Party Licenses shall prevail but solely in connection with the related Third-Party Software. Without derogating from the generality of the foregoing, it is clarified that any Third-Party Software is provided on an “AS IS” basis, without indemnity or warranty of any kind, whether express or implied.
8. CONFIDENTIALITY
The parties undertake to maintain confidentiality in accordance with the Non-Disclosure Agreement previously signed between the parties, except as specified and set forth in Section 12.3 herein.
9. FEES
9.1 Customer shall pay Pairzon the fees as set forth in the Order Form.
9.2 Customer is solely responsible for payment of any taxes (including, without limitation, sales or use taxes, Value Added Taxes, employee-related taxes, intangible taxes, and property taxes, and only excluding taxes related to Pairzon’s income) resulting from using the Technology. To the extent that Pairzon shall be required to pay any such taxes then such taxes shall be billed to and paid by Customer. If any such taxes are required to be withheld, Customer shall pay an amount to Pairzon such that the net amount payable to Pairzon after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement
10. TERM AND TERMINATION
10.1 Subject to earlier termination as provided below, this Agreement shall be in force and effect during the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least sixty (60) days prior to the end of the then-current term.
10.2 Notwithstanding the provisions of Section 10.1 above and without derogating from any right or remedy hereunder and/or any applicable law, each party may terminate this Agreement with an immediate effect, upon the occurrence of any of the following events:
(i) the other party has breached a material term of this Agreement and such breach has not been cured within a period of fourteen (14) days;
(ii) an appointment of a liquidator, trustee or receiver with respect to all or materially all the assets of the other party, or if a petition for the appointment of any of the above was submitted and has not been cancelled within sixty (60) days;
(iii) a filing of a petition for creditors arrangement by the other party or in connection with such party, which has not been cancelled within sixty (60) days;
(iv) the other party was declared insolvent or is in the process of a liquidation or initiated a voluntary liquidation proceeding.
As promptly as possible after becoming aware of the occurrence of any of the events stated in sub-Sections 10.c (i)-(iv) above, the party wishing to terminate the Agreement will provide the other party with a written notice notifying the other party thereof.
10.3 Notwithstanding the above, Customer may terminate the Agreement without cause within ten (10) days of the Effective Date, by providing Pairzon with a written notice thereof. For avoidance of doubt, once ten (10) days as of the Effective Date have passed, neither party may terminate this Agreement for reasons other than those set forth in Section 10.2 above.
10.4 It is hereby agreed that upon termination of this Agreement, for any reason whatsoever, Customer shall pay Pairzon the consideration it is entitled to up to the date of termination.
10.5 Upon termination of this Agreement for any reason, Customer will immediately cease use of the Technology, and both parties shall promptly return any of the other party’s Confidential Information that they may then have in their possession.
10.6 In the event this Agreement is terminated by Customer due to Pairzon’s material breach, then Pairzon shall refund to Customer a pro-rata portion of the prepaid but unused fees applicable to the portion of the Term remaining after the termination date.
11. LIABILITY AND INDEMNIFICATION
11.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS, EITHER IN CONTRACT, TORT OR OTHERWISE, UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING A PARTY’S PERFORMANCE OR NON-PERFORMANCE HEREUNDER, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAD BEEN DISCLOSED TO THE OTHER PARTY IN ADVANCE OR COULD HAVE BEEN REASONABLY FORSEEN B YTHE OTHER PARTY.
11.2 SUBJECT TO SECTION 11.3 BELOW, IN NO EVENT SHALL EITHER PARTY’S LIABILITY FOR DIRECT DAMAGES UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT, EXCEED THE AMOUNT OF FEES ACTUALLY PAID OR PAYABLE TO PAIRZON BY CUSTOMER UNDER THIS AGREEMENT IN THE 12 MONTHS PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
11.3 Notwithstanding Section 11.2 above and anything to the contrary, the liability cap set forth in Section 11.2 will not apply to: (i) Customer’s infringement or misappropriation of Pairzon’s intellectual property rights, (ii) breach of applicable privacy laws, or (iii) willful misconduct or gross negligence of a party or anyone on its behalf.
11.4 Pairzon shall indemnify, hold harmless and defend or settle at its expense, any action, claim or proceeding, brought against Customer and anyone on its behalf, to the extent based upon a claim that the Technology infringes any third party intellectual property right. Pairzon’s obligation to indemnify Customer shall be limited to the following: Pairzon agrees to pay Customer reasonable attorneys’ fees and expenses, incurred in investigation or defense of such claims, and all damages and liabilities finally awarded against Customer or paid in settlements and arising out of such third-party claims. Pairzon’s indemnity obligation shall not extend to claims based solely on (i) an unauthorized use of the Technology; (ii) the Customer’s use of the Technology after receipt of notice of alleged or actual infringement by Pairzon; and (iii) Customer’s sue of the Technology together with other products or software, where the use of the Technology alone would not consist infringement of a third-party’s intellectual property.
11.5 Customer shall indemnify, hold harmless and defend any action, claim or proceeding brought against Pairzon or anyone on its behalf, to the extent claim is based upon (a) Customer’s violation or breach of applicable law or Customer’s representations hereunder, (b) Customer’s infringement of third parties’ intellectual property, or (c) Customer’s infringement of any provisions of relating to data protection or consumer protection, including inter alia, as applicable, Privacy Protection Law, 5741-1981 and the regulations promulgated thereunder, including the provisions relating to direct mailing of advertising material, as well as the provisions of the California Consumer Privacy Act of 2018, California Privacy Rights Act of 2020, CAN- SPAM Act of 2003, Regulation (EU) 2016/679 (General Data Protection Regulation), etc., all as amended or replaced from time to time.
11.5 As a condition to the indemnification set forth above, indemnified party shall give indemnifying party prompt notice of any such claim made against it, and grant indemnifying party sole control of the defense of any such claim, suit or proceeding, including appeals, negotiations and any settlement or compromise thereof. Notwithstanding, the indemnifying party shall not settle or compromise any indemnifiable claim or consent to entry of judgment in respect thereof without the indemnified party’s written consent, which shall not be unreasonably withheld.
11.6 For the avoidance of any doubt, it is hereby clarified that indemnification for any third party’s claims will be due and payable on upon receipt of a final, un-appealable court order regarding such claim.
12. USE OF INFORMATION
12.1. Customer hereby grants Pairzon a world- wide, non-exclusive, royalty-free license during the applicable term, to collect, use, reproduce and distribute the Customer Content for the purposes set forth in Section 12.3 below. Pairzon will not be liable for any non-conformance of the Technology when such non-conformance is caused by Customer’s delay in or failure to provide the required Customer Content or an interface to it. Customer represents and warrants that it owns all right, title and interest in and to the Customer Content or has acquired the right to use it, and that it has the right to allow Pairzon to use the Customer Content as set forth in this Agreement.
12.2 Pairzon undertakes to manage the Customer Content collected as a result of the Technology’s use and/or as a consequence of the performance of this Agreement (the “Collected Information”), in accordance with provisions of this Agreement, Pairzon’s Privacy Policy available at https://pairzon.com/privacy-policy/ and the Data Processing Addendum available at https://pairzon.com/dpa (both hereby incorporated as an integral part of this Agreement), and undertakes to keep copies of the invoices or digital receipts generated by Customer for its customers for as long as legally required. Pairzon further undertakes that the Collected Information will be maintained in accordance with the provisions of applicable law. Customer will be entitled to access the Collected Information during the Term and/or for the Retention Period, whichever is longer.
12.3. Notwithstanding the foregoing, Pairzon shall be entitled to use the Collected Information, solely: (a) to comply with its obligations in accordance with the terms set forth herein, or; (b) to enable Customer to effectively use the Technology, or; (c) upon receipt of Customer’s prior written consent, or; (d) as long as the Collected Information is disseminated on an anonymous and aggregated basis (i.e.: the information will not contain any identifiers of Customer or any of its customers) and: (i) for statistical purposes, or (ii) for conducting market research, or (iii) to improve and upgrade the Technology and/or improve its effectiveness; provided, that; or (e) pursuant to a requirement or request of a governmental agency or pursuant to a court or administrative subpoena, order or other such legal process or as may be required by applicable law or regulation.
13.MISCELLANEOUS
13.1 The parties’ addresses are as specified in the preamble of this Agreement. Any notice sent to any of the parties by registered mail shall be deemed to have been duly accepted by the other party after 72 hours from its delivery or on the day of transmission if sent by e-mail or fax subject to receipt of an automatic electronic written confirmation of delivery.
13.2 Pairzon may use Customer’s name and/or Customer’s logo, as applicable, in referring to Customer as its customer. Customer may, at any time, require Pairzon to discontinue the use of its name and Pairzon undertakes to promptly cease such use.
13.3 The parties hereby represent and agree that Pairzon is an independent contractor and nothing contained in this Agreement shall be construed to create or imply an employee-employer relationship, joint venture, partnership or agency or fiduciary relationship between the parties.
13.4 Neither party may assign or transfer any right or obligation under this Agreement without the other party’s written consent, provided, however, that either Party may transfer or assign this Agreement, or any rights or obligations hereunder, to a successor to its business by merger or acquisition without the consent of the other Party. Subject to the above, this Agreement shall be binding upon and inure to the benefit of the respective successors and assignees of both parties.
13.5 This Agreement includes and incorporates the above Order Form, as well as the attached Terms and Conditions and its Exhibits and any document specifically referenced and defined herein as an integral part of the Agreement. There shall be no force or effect to any different terms of any related purchase orders, documents or similar forms even if signed by the parties after the date hereof, except for contractual amendments which are specifically intended to supersede this Agreement and explicitly stipulate so.
13.6 This Agreement represents the entire agreement between the parties with respect to its subject matter and supersedes all prior communications, understandings, or agreements, whether oral or written. No modification of this Agreement shall be binding on the parties unless in writing and signed by an authorized representative of each party.
13.7 In the event that any covenant, condition or other provision contained in this Agreement is held to be invalid, void or illegal by any court of competent jurisdiction, the same, to the extent commercially reasonable, shall be deemed severable from the remainder thereof, and shall in no way affect, impair or invalidate any other covenant, condition or other provision therein contained.
13.8 This Agreement shall be governed exclusively by the laws of the State of Delaware, without regard to its conflict of laws provisions, and the competent courts in Delaware shall have exclusive jurisdiction over any claim arising out of, or in connection with, this Agreement.
13.9 Except for Customer’s obligation to pay fees due under this Agreement, 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 events beyond its control, including, without limitation, flood, earthquake, fire, disease, pandemic, epidemic, acts of God, military insurrection, civil riot, or labor strikes.
13.10 Terms which by nature survive termination or expiration shall survive any termination or expiration of this Agreement. Notwithstanding, the following Sections shall survive any termination or expiration of this Agreement: 3, 8, 10.5, 11, 13,3, 13,8 and 13.10. Termination shall not affect any rights and obligations accrued as of the effective date of termination.
13.11 Each party declares and agrees that in connection with the activities under this Agreement it has not performed, nor will it perform, any act which would constitute a violation of any applicable anti-Corruption or anti-Bribery laws or regulations.
13.12 Customer agrees to comply fully with all applicable export laws and regulations to ensure that neither the Technology nor any technical data related thereto are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
13.13 This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and enforceable against the party actually executing such counterpart, and all of which together shall constitute one and the same instrument. The exchange of an executed Agreement (in counterparts or otherwise) by facsimile or by electronic delivery in PDF format or similar format shall be sufficient to bind the parties to the terms and conditions of this Agreement as an original.
EXHIBIT A
Pairzon will provide Customer with the Technology, an AI Marketing platform, in compliance with the terms and conditions of the Agreement.
The Technology will enable Customer to:
- Audience creation according to the Customer’s marketing requirements;
- Generating comparison reports between advertising networks and media;
- Using machine learning to classify on-line’s users and creating similar audiences;
- Manage and share audiences among diverse accounts/platforms.
- Close the loop and provide accurate conversions for both in-store and online transactions.
- Generate targeted audiences for all social channels, ensuring precise marketing outreach.
- Create smart segmentations for all media channels, leveraging the insights derived from your data.
- Utilize predictive audiences to optimize ongoing digital campaigns, enhancing their effectiveness.
EXHIBIT B
TECHNICAL SPECIFICATIONS
In order to enable the proper use the Technology, as set forth in the Agreement, Customer undertakes towards Pairzon as follows:
- To provide Pairzon with access to its data or systems pursuant to the technical specifications provided by Pairzon, in order to enable the Technology’s interface with said data or systems;
- To ensure that Customer’s servers will have secured Internet communication;
- In the event the Technology is provided on-prem Provide Pairzon with the required hardware minimal requirements and access for installation.