END USER LICENSE AGREEMENT (July 2019)
(“EULA”)
This EULA sets out the terms and conditions under which Razor Labs agrees to provide You a License to use the Software.
By using the Software, You agree to be bound by this EULA. If You do not agree to all the terms and conditions of this EULA, Razor Labs is unwilling to license the Software to You, and in such event, You are prohibited from using the Software and Razor Labs shall not be obliged to continue with the engagement with You.
1. DEFINITIONS
In addition to the definitions appearing elsewhere in the EULA, the following capitalized terms shall have the following meanings:
1.1. “Affiliate” means any entity in which You or Razor Labs (as the case may be) owns more than 50% of the issued stock or any entity that owns more than 50% of the issued stock of You or Razor Labs (as the case may be) – all whether directly or indirectly;
1.2. “Content” means all data and information provided by You or by anyone on Your behalf into the Software or using the Software, all except for data and information provided to You by Razor Labs;
1.3. “Documentation” means Razor Labs’s documentation applicable to the Software, including Razor Labs’s user guides, technical manuals and training materials;
1.4. “Intellectual Property Rights” means all right, title, and interest in and to the Software, including any and all intellectual, moral and/or industrial property and rights now or hereafter recognized under any applicable law or in equity anywhere in the world, whether registrable or unregistrable, issued or pending, registered or unregistered, including (i) all forms of patents and utility models; (ii) inventions, discoveries, (whether patentable or not); (iii) rights associated with works of authorship, including copyrights and mask works; (iv) trademarks and service marks, trade names, domain name registrations; (v) designs (whether registrable or not), design rights; (vi) database rights; (vii) trade secrets and know how; (viii) all rights to or in connection with confidential or proprietary information; and with respect to the intellectual property included in paragraphs (i) to and including (viii) above – any rights analogous to those mentioned herein; all derivative works and/or any improvements or modifications thereof; and any current or future applications, renewals, extensions, restorations, provisionals, continuations, continuations-in-part, divisions, reexaminations and reissues thereof; the right to apply to any of the above; any license rights with respect to the above received from third-parties; and all of the tangible embodiments thereof;
1.5. “Razor Labs” means Razor Labs Ltd.;
1.6. “Software” means Razor Labs software developed and customized to the Customer’s requirements including but not limited to, VisualMind AI, DataMind AI, InspectionMind AI including additional related or supplementary software modules as set forth in the Transaction Documents, and the Documentation; all including any updates, upgrades and/or other modifications thereto;
1.7. “Transaction Documents” means the applicable order form(s), contract(s), proposal(s) and/or any other documents approved by Razor Labs, detailing, inter alia, the quantities and other details of the license(s) granted to You, including their respective Licensing Model(s), Licensing Base(s) and Licensing User Type(s) and any other limitations (e.g. the number of periodic transactions processes, limited-functionality access to the Software etc.);
1.8. “You” (or “Your“) means the individual or legal entity licensing the Software under this EULA as set forth in the Transaction Documents.
2. LICENSE
2.1. License. The license granted to You by Razor Labs is subject to Your compliance with all the terms and conditions of this EULA and to payment by You of all applicable fees, and provides You a personal, non-exclusive, non-transferable, non-sublicensable, limited right to use of the Software, solely for Your or Your Affiliates’ internal business operations subject to the terms contained in the Transaction Documents (“License“).
2.2. Open Source and Additional Software Components. The Software may contain certain open source code or additional software components that may be subject to additional specific license terms. In accepting this EULA, you also agree to be bound by these license terms with respect to the aforementioned specific open source code or software components.
2.3. Authorized Use. Only those authorized by You may use the Software, subject to all of the following: (a) such use is solely on Your behalf; (b) such use shall be in compliance with all of the terms and conditions of this EULA; and (c) You shall be fully liable for any breach of this EULA.
2.4. Licensing Model(s), Base(s) and User Type(s).
(i) Perpetual Base: a License, which allows use of the Software perpetually.
(ii) Any License granted is defined based on one Licensing Model (as defined in Section 2.4.1 below), one Licensing Base (as defined in in Section 2.4.2 below) and one Licensing User Type (as defined in Section 2.4.3 below).
2.4.1. Licensing Model.
(i) On-Premises Model: a License in which the Software is hosted by You (either at Your facility or at the facility of Your third party hosting services provider).
(ii) SaaS Model (Software as a Service): a License in which the Software is located on a cloud service operated by Razor Labs.
2.4.2. Licensing Base.
(i) Subscription Base: a License, which allows use of the Software for a limited renewable term(s) with the License expiring at the end of such term if not renewed – after which You will be prohibited from using the Software.
2.4.3. Licensing User Type.
(i) Named User: a License that allows use of the Software only by a particular named individual, as designated by You through the Software’s tools (“Named User“). The quantity of Named Users using the Software cannot exceed the quantity of Named User Licenses as set forth in the Transaction Documents.
(ii) Concurrent User: A License, which allows use of the Software by a single user, regardless of the identity of such user (“Concurrent User“). Multiple Concurrent Users may share use of the Software, provided that the quantity of Concurrent Users using the Software simultaneously at any given time does not exceed the quantity of Concurrent User Licenses as set forth in the Transaction Documents.
3. LIMITATIONS
3.1. You will not, and will not allow any third party, to:
3.1.1. Unless explicitly authorized by Razor Labs to do so, or to the extent allowed under any applicable law – make any copies of the Software or any part thereof;
3.1.2. Except as and only to the extent any of the following restrictions are specifically prohibited by applicable law or to the extent as may be explicitly permitted by the licensing terms governing use of any open sourced components included with the Software – modify, adapt, translate, decrypt, decompile, disassemble or reverse engineer the Software, or in any other manner decode the Software or create derivative works based on the Software;
3.1.3. Sell, loan, rent, lend, lease, sub-license, resell, distribute, or otherwise transfer the Software to any third party or use the Software in any manner not expressly allowed under this EULA or the Transaction Documents;
3.1.4. Remove or alter any patent numbers, trade names, copyright notices, trademark notices, serial numbers, labels, tags or other identifying marks, symbols or legends included in and/or otherwise affixed to the Software;
3.1.5. Use the Software in any manner inconsistent with any applicable law;
3.1.6. Use the Software to conduct any illegal activity, solicit any illegal activity, or to engage in any other activity that infringes upon the rights of Razor Labs or any third party.
3.2. The user name and password used to access the Software shall be unique, may not be used by anyone except for the specific person to whom they were assigned, may not be shared with others and must be kept secured and confidential at all time.
4. CONTENT
4.1. You shall be solely responsible for all Content, including with respect to the accuracy, quantity, quality and legality of the Content. Razor Labs shall not be responsible for the Content in any manner. Razor Labs does not claim ownership over the Content.
4.2. Without derogating from the foregoing, by executing this EULA, you hereby grant to Razor Labs a worldwide, perpetual, non-exclusive, irrevocable royalty-free transferable license (with the right to sub-license) to use and process the Content for the purposes of analysing, and creating improvements, developments and changes to the Software and for other internal operational purposes, provided that Razor Labs shall not provide the specific iteration of the Software to any competitor of the Customer. You acknowledge that the Software is an AI-based software that employs machine-learning for improving its functionality and efficiency and you hereby agree that Content may be used for improving the functionality and the efficiency of the Software and that all ownership and title to such improvements to the Software conceived by the use and manipulation of the Content shall vest solely in Razor Labs.
4.3. Notwithstanding anything to the contrary express or implied, if at any time Razor Labs becomes aware that any Content (i) may be obscene, defamatory or fraudulent, violate any applicable law (ii) infringe any third party intellectual property rights or (iii) exposes Razor Labs to any civil, regulatory or criminal liability, Razor Labs shall be entitled to notify You accordingly, and You shall immediately remove such Content;
4.4. With respect to SaaS Model – Upon termination or expiration of this EULA, You will lose all access to the Content, provided however that (i) for a period of thirty (30) days from the effective date of termination of the License, Razor Labs will provide You, upon Your written request, with a reasonable opportunity to download Your Content (at Your cost and expense); (ii) Razor Labs reserves the right to permanently delete any Content at any time following said thirty (30) day period, and You hereby waive any rights and/or remedies with respect to such deletion of Content.
4.5. You shall indemnify, defend, and hold harmless Razor Labs and its respective directors, officers, employees and agents, from and against any loss, damage, cost, expense or liability, resulting from or arising out of any third party claim based on a claim that any Content infringes upon the Intellectual Property Rights of a third party and/or is otherwise unlawful and/or contrary to any contractual obligation made by You towards such third-party with respect to the Content.
5. WARRANTIES
5.1. The Software is provided and licensed by Razor Labs on an “as-is” basis. To the fullest extent permitted by applicable law, Razor Labs expressly disclaims all warranties and conditions of any kind or nature, whether written or oral, express or implied, including with respect to the merchantability, fitness for a particular purpose or use, title, performance, security, or non-infringement of third party rights. In addition, Razor Labs expressly disclaims any implied warranty with respect to liability for compliance with applicable law applicable to You, which shall be Your sole responsibility.
5.2. Without derogating from the generality of Section 6.1 above, Razor Labs does not represent or warrant that (i) the operation of the Software will be accurate, uninterrupted, faultless and/or error-free; (ii) the Software will operate on equipment and/or system other than those explicitly specified by Razor Labs; (iii) the Software or any equipment or system on which the Software is used will be free of vulnerability to intrusion or attack; and/or (iv) disruptions and/or impairments in the use of Content and/or other data will not occur.
6. LIMITATION OF LIABILITY
6.1. To the maximum extent permitted by applicable law, in no event shall Razor Labs, and its directors, officers, employees, agents and licensors, be liable for (i) any special, indirect, incidental, consequential, exemplary and/or punitive damages, (ii) any loss of and/or damage to Content and/or other data, loss of business, loss of revenues, loss of profits, loss of goodwill or loss of use, (iii) any damages resulting from use of the Software not in compliance with this EULA and/or (iv) any third party claims against You; arising out of or in any way related to this EULA.
6.2. Without derogating from the above, Razor Labs’s maximum cumulative liability in connection with this EULA will be limited to the total amount of License fees paid by You for the Software during the twelve (12) months period preceding the date on which the event giving rise to liability occurred. This limitation of liability for Software is cumulative and not per incident.
6.3. No action may be brought against Razor Labs arising from or in connection with this EULA later than one (1) year from the date during which the grounds for such claim were established or the relevant facts became known to You, provided that the reasons due to which the grounds for such claim were not known after they had been established was not due to any circumstances under Your control and that You could not have prevented them by exercising due caution.
7. OWNERSHIP
7.1. All Intellectual Property Rights are and shall remain the sole and exclusive property of Razor Labs. You are granted no title or ownership rights in or to the Software.
7.2. Without derogating from the above, Razor Labs reserves all proprietary rights in and to all designs, engineering details and other data pertaining to the Software. The Software contains trade secrets of Razor Labs, including the source code version and the specific design of the Software. All rights not expressly granted to You in this EULA are retained by Razor Labs.
7.3. You shall promptly notify Razor Labs in writing of any infringement or other violation of Razor Labs’s Intellectual Property Rights to which You become aware. You shall reasonably cooperate with Razor Labs, at Razor Labs’s expense, in the defense and protection of such Intellectual Property Rights.
7.4. In case of SaaS Licensing Model You grant Razor Labs a worldwide, royalty-free, transferable, sublicensable license to use, modify, reproduce and distribute the Content only as reasonably required to provide the SaaS services.
8. CESSATION OF USE
You acknowledge and agree that if you breach the terms of this EULA or infringe Razor Labs’ rights, Razor Labs shall have the right to block or otherwise prevent access to the Software and/or remove the Software, without derogating from any rights and/or remedies available to Razor Labs under agreement or at law.
9. CONFIDENTIALITY
9.1. A party to this EULA that received any information under this EULA (“Receiving Party“) agrees to hold in confidence any information, in whatever form disclosed, provided by or on behalf of either party (“Disclosing Party“) to it or to which the it otherwise gains access, in the course of or incidental to the performance of this EULA (“Confidential Information“), subject to the exceptions of Section 10.4 below and subject to the terms of this EULA. Without derogating from the generality of the above, the Software shall be deemed as Confidential Information of Razor Labs.
9.2. The Receiving Party agrees to refrain from using, copying, distributing, disseminating or otherwise disclosing such Confidential Information to anyone. Notwithstanding the above, the Receiving Party shall be authorized to disclose the Confidential Information to its employees and representatives (“Related Parties“), if and to the extent that that such Related Parties have a legitimate business need to have access to and knowledge of the Confidential Information and provided that: (i) the Receiving Party shall remain liable for any breach by its Related Parties thereof; and (ii) the Confidential Information is limited to such extent necessary.
9.3. All Confidential Information shall be and remain the property of the Disclosing Party. Disclosure of the Disclosing Party’s Confidential Information to the Receiving Party shall not be construed as granting the Receiving Party any right, title, or license, whether express or implied, with respect to the Confidential Information or to its related Intellectual Property or products (including improvements, modifications and/or derivatives related to the Confidential Information), other than the right to use the Confidential Information in accordance with the provisions of this EULA.
9.4. The confidentiality obligations of the Receiving Party regarding the Disclosing Party’s Confidential Information shall not apply to Confidential Information which: (a) is generally available to the public in reasonably integrated form without fault on the part of the Receiving Party; (b) is lawfully obtained from a source other than the Disclosing Party, which source is free of any obligation to keep the same confidential; (c) is previously known to the Receiving Party without an obligation to be kept confidential, as can be substantiated by written and dated records; (d) was independently developed by the Receiving Party, without use of the Disclosing Party’s Confidential Information, as can be substantiated by written and dated records; (e) is expressly released in writing from such obligations by the Disclosing Party; or (f) is required to be disclosed pursuant to applicable law or request by a governmental or other entity authorized by law to make such request, including any stock exchange or securities agency or authority; provided, however, that the Receiving Party so required to disclose shall first notify the Disclosing Party (to the extent not prohibited from doing so) in order to enable it to seek relief from such requirement, and disclose only that portion of the Confidential Information which is required to be disclosed as stated in this subsection (f) above.
9.5. All copies of Confidential Information, regardless of form, shall, at the discretion of the Disclosing Party, either be destroyed or returned to the Disclosing Party, promptly upon the earlier of: (i) Disclosing Party’s written request, or (ii) expiration or termination for any reason of this EULA. The Receiving Party shall confirm such destruction or return in writing to the Disclosing Party. The provisions of this Section 9.5 shall not apply to any Confidential Information with respect to which the Receiving Party may be subject to a legal obligation to maintain copies of for a certain period of time (at the end of which the Receiving Party shall promptly destroy or delete any such copies).
10. TERM AND TERMINATION
10.1. This EULA term commences on the date of Your first use of the Software, and shall thereafter continue to be in full force and effect until termination or expiration of the applicable License.
10.2. This EULA may be terminated by either party on written notice, if any of the other party becomes insolvent, ceases to do business as a going concern, makes an assignment, composition or arrangement for the benefit of its creditors, or admits in writing its inability to pay debts, or if proceedings are instituted by or against it in bankruptcy under applicable insolvency laws, or for receivership, administration, winding-up or dissolution or an analogous event to any of the foregoing occurs under any applicable law, all (i) except in the course of a solvent reorganization, restructuring or mergers; and (ii) provided such proceedings are not dismissed within sixty (60) days from the initiation thereof.
10.3. Any incompliance by You with this EULA and any failure by You to pay, for any reason, the applicable fees for a License granted within thirty (30) days from the due date for payment, shall entitle Razor Labs to forthwith terminate this EULA and/or suspend Your right to use the Software (at Razor Labs’ sole discretion), without thereby derogating from other rights and/or remedies afforded to Razor Labs under any agreement or at law.
10.4. You may terminate a License granted on Subscription Base by written notice to Razor Labs to that effect, in which event the effective date of termination shall be the end of the following calendar quarter, unless a specific d was provided in the Transaction Documents – in which case the termination shall become effective at the end of the said commitment period.
10.5. Upon expiration or termination for any reason of this License, You shall destroy all copies of the Software in Your possession or control, and shall certify to Razor Labs in writing that You have satisfied such obligation.
11. GOVERNING LAW AND DISPUTE RESOLUTION
11.1. Any dispute arising out of or in connection with this EULA, including with respect to the interpretation, performance, breach or termination thereof (“Dispute“) shall be governed, controlled, and interpreted exclusively by and under the laws of the State of Israel, without regard to the conflicts of law provisions thereof.
11.2. The parties hereby expressly and irrevocably submit to the exclusive jurisdiction of the competent courts in Tel-Aviv, Israel, in connection with any Dispute. Each party expressly and irrevocably waives any right that it may have to object to an action being brought in those Israeli courts, to claim that the action has been brought in an inconvenient forum, or to claim that those courts do not have jurisdiction.
12. MISCELLANEOUS
12.1. General Provisions. (i) The headings of the Sections in this EULA are for reference only and shall not be considered in the interpretation hereof; (ii) the word “including” is not intended to be exclusive and means “including without limitation”; (iii) this EULA contains the complete agreement with respect to the subject matter hereof and supersedes any prior understandings, agreements or representations regarding such subject matter; (iv) in the event that any provision of this EULA is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, that provision shall be construed, limited, modified or deleted, to the extent necessary to eliminate any invalidity, illegality or unenforceability, and the remaining provisions of this EULA remain in full force and effect; (v) no waiver of any right under this EULA shall be effective unless in writing and signed by a duly authorized representative of the party to be bound; no waiver of any past or present right arising from any breach or failure to perform shall be deemed to be a waiver of any future right arising under this EULA; (vi) nothing contained in this EULA shall be construed as creating a partnership, joint venture, agency or other similar relationship between Razor Labs and You, nor as granting either party the right, power, or authority (express or implied) to bind or otherwise create any duty or obligation for the other; (vii) there shall be no employer-employee relationship between the parties.
12.2. Notices. Termination notices shall be delivered by registered post to the registered office address of Razor Labs or Your (as the case may be) with delivery confirmation, and shall be deemed to have been delivered to the other party after such confirmation has been received. Any other notices may be delivered by electronic mail (e-mail), and shall be deemed to have been delivered upon receipt unless received not in a business day, in which case such notice shall be deemed to have been made to the other party on the next business day following receipt. E-mail addresses: If to Razor Labs – office@razor-labs.com; if to You – as provided to Razor Labs. Neither the expiration nor termination of this EULA shall terminate the obligations and rights of the parties pursuant to provisions of the EULA which by their terms are intended to survive or be perpetual or irrevocable. Such provisions shall survive the expiration or termination of this EULA.
12.3. Assignment. (i) You may not assign, subcontract and/or otherwise transfer any of its rights and/or obligations under this EULA, either in whole or in part, to any third party without the prior written consent of Razor Labs, and any purported assignment, subcontracting or transfer without Razor Labs’s prior written consent shall be null and void; (ii) Razor Labs may assign, subcontract and/or otherwise transfer any of its rights and/or obligations under this EULA, either in whole or in part, to any third party at Razor Labs’s sole discretion and without Your consent.
12.4. Amendment. Razor Labs reserves the right to update this EULA from time to time, by sending You a notice on the amendment of this EULA.
12.5. No Third Party Rights. This EULA does not create any obligation of a party to any third parties, nor shall it be deemed to create any rights or causes of action on behalf of any third parties.
