End User License Agreement
IMPORTANT – READ CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE (THE “SOFTWARE”).
This End-User License Agreement “Agreement“) is a binding legal agreement between you (“Licensee“) and Smart-X Software Solutions Ltd. (the “Company” or “Smart-X”) which sets forth the terms and conditions under which the Licensee is entitled to download, install and use the Software that has been developed and is owned by Smart-X .
BY INSTALLING, DOWNLOADING, COPYING OR USING THE SOFTWARE, THE LICENSEE DECLARES THAT HE CAREFULLY READ AND UNDERSTOOD AND ACCEPTED THE TERMS OF THIS AGREEMENT AND AGREES TO BE LEGALLY BOUND BY ITS TERMS, INCLUDING THOSE INCORPORATED BY REFERENCE HERETO. IF THE LICENSEE DOES NOT AGREE TO THESE TERMS, HE SHALL REFRAIN FROM INSTALLING, COPYING, DOWNLOADNG OR USING THE SOFTWARE.
IF YOU ARE INSTALLING THIS SOFTWARE ON BEHALF OF A USER, YOU WARRANT AND REPRESENT THAT YOU ARE AUTHORIZED TO ACT ON BEHALF OF THE USER AND TO ACCEPT AND BIND THE USER TO THE TERMS OF THIS AGREEMENT AND ANY OTHER TERMS INCORPORATED BY REFERENCE HERETO.
1.1. “We” , “Us” ,”Smart-X” , “Our” or the “Company” refer to Smart-X Software Solutions Ltd. an Israeli limited liability company, having its main place of business at 18 Abba Hillel Silver Street, P.O.Box 61022, Lod, Israel, 7116002.
1.2. “Licensee” refers to the business entity and/or individual person consenting to, and entering into, this Agreement.
1.3. “Software” refers to the software, in object code format, provided to the Licensee together with this Agreement, including the Main Console, The Monitor Service, Agents and ControlUp Backend Servers,in addition to but not limited to (i) third party`s software incorporated therein; (ii) related explanatory written materials (“Documentation“); and (iii), any patches, updates, modified versions, additions, service packs and upgrades, if any, which may be provided by the Company from time to time (“Updates & Upgrades“).
1.4. “License Program” refers to a certain combination, marked and chosen by the Licensee in the Registration Form.
1.5. “Support Services” refers to those support services detailed in the support statement available at the following URL http://decontrolup.wpengine.com/support/support-statement/
1.6. “Annual License Fee” refers to the respective amounts that should be paid to Smart-X for the use of the Software for a period of one year in accordance with the relevant License Program.
1.7. “Monthly License Fee” refers to the respective amounts that should be paid to Smart-X per each month in which the Licensee uses the Software in accordance with the relevant License Program.
1.8. “Main Console” refers to the IT Management system, known as “Smart-X ControlUp” in the edition stipulated in the License Program the Licensee subscribed for, that is installed on the Licensee’s Server.
1.9. “Monitor Service” refers to an IT monitor element known as “ControlUp Monitor” that is installed on one or more of the Licensee’s Servers and can run 24/7.
1.10. “Agent” refers to any piece of software code Smart-X provides the Licensee (deployed from the installation package installed with the Main Console or from Smart-X website), that is installed on all, selected, or none, of the Licensee’s End Points.
1.11. “ControlUp Backend Servers” refers to software, database scripts and configuration elements providing backend services to the Main Console and the Monitor Service.
1.12. “Our Servers” refers to severs belonging to Smart-X and/or third party providing Hosting service for ControlUp Backend Servers used by Smart-X.
1.13. “End Point” refers to each hardware or virtualized based station monitored by the Main Console or the Monitor Service under the terms of this Agreement, including, but not limited to, personal computers, laptops, terminal services, VDI, servers, screens etc.
1.14. “Host” refers to virtualized infrastructure elements which can run multiple End Points and Servers and are monitored by the Main Console and or the Monitor Service under the terms of this Agreement, including, but not limited to vSphere, XenServer and Hyper-V based hosts.
1.16. “Server” refers to a single component of hardware enabling the installation of the Main Console and or The Monitor Service on its storage device and the operation thereof.
1.17. “ControlUp User Account” refers to each issuance of a unique username and password enabling authenticated access to the Main Console.
1.18. “User/s” refers to the Licensee and any individual on its behalf that is assigned with a ControlUp User Account.
1.19. “Concurrent Sessions” refers to the number of sessions currently established on all of the Licensee’s End Points. The total amount of sessions is determined by the sum of user sessions and system (services) sessions. On Terminal Servers each user session is counted as a single session plus two sessions for the server itself. A workstation constitutes one session, whenever a user is logged to the work station. Any other server of any kind whatsoever (DC, Exchange, SQL, File Servers, etc.) constitutes 5 Concurrent Sessions, even if the no users are currently logged on to the Server.
1.20. “Registration Form” refers to the form the Licensee filled during the registration process stipulating the License Program the Licensee chose, and additional details.
1.21. “Offline Activation File” refers to a file which will be received and uploaded by the Licensee to its Server, which includes, inter alia, the details of the Licensee’s License Program as was approved by Smart-X, and additional details. The file allows the Main Console to operate without connecting to Our Servers
1.22. “Standalone Mode” refers to an operation of the Main Console in which the ControlUp configuration data and statistics are stored solely within the Licensee’s Local Area Network and are never sent to Our Servers.
1.23. “Enterprise Mode” refers to an operation of the Main Console and the Monitor Service in which certain login, configuration, performance metrics, IT events and licensing information are exchanged between ControlUp Backend Servers reside on Our Servers and the Main Console and The Monitor Service securely communicates and exchanges information with ControlUp Backend Servers.
1.24. “Private Cloud Mode” refers to an operation of the Main Console and the Monitor Service in which certain login configuration, performance metrics, IT events and licensing information are exchanged between ControlUp Backend Servers reside within the Licensee’ Network and the Main Console and The Monitor Service securely communicates and exchanges information with ControlUp Backend Servers. ControlUp configuration data and statistics are stored solely within the Licensee’s Network and are never sent to Our Servers.
2. Grant of License
Smart-X grants the Licensee, upon full compliance of the terms and conditions set forth in this Agreement and any other terms incorporated by reference, a limited, non- exclusive, non- transferable license to:
(a) Download, install and use a copy of the Software on one or more PC’s or Servers within the Licensee’s IT network;
(b) Download, install and use a certain amount of Agents on a certain amount of End Points within the Licensee’s organization up to the amount the Licensee subscribed and paid for, as indicated in its License Program. The Agents may be installed by the Licensee solely on End Points and/ or Servers located at the Licensee’s principal place of business and may not be transferred outside such premises; and
(c) Assign certain amount of ControlUp User Accounts up to the amount the Licensee subscribed and paid for, as reflected in the License Program.
For the avoidance of any doubt, it is hereby declared and agreed that the Software is merely licensed to the Licensee, but not sold.
Any documentation that accompanies the Software is licensed for internal, non-commercial or reference purposes only.
3. Reservation of Rights and Ownership
3.1. Smart-X reserves all rights not expressly granted to the Licensee in this Agreement.
3.2. The Software is protected by copyright and other intellectual property laws, regulations and treaties.
3.3. Smart-X owns all rights, including, without limitation, intellectual property rights, title and interest in and relating to the Software.
3.4. The Licensee hereby declares that he is not nor shall he be entitled to any rights whatsoever, including, without limitation, intellectual property rights, in or arising from the Software.
4. Intellectual Property Rights
4.1. The Software, in whole or in part, as well as any extracts or output that the Licensee produce when using the Software (collectively, “the Protected Material“), are and shall continue to be owned exclusively by Smart-X, including, but not limited, to its structure, organization and code which constitute valuable trade secrets of Smart-X. The Protected Material is also protected by local Copyright Law and International Treaties’ provisions. The Licensee shall not receive in any manner whatsoever, under any circumstances whatsoever, any source code of or relating to any software included in the Protected Material. It shall also be emphasized that this Agreement does not grant the Licensee a license in any source code.
4.2. The Licensee hereby declares and agrees that this Agreement does not entitle the Licensee to any intellectual property rights including, but not limited to, patents, copyrights, trade- secrets, trademarks or any other rights relating to the Software, its source code and the Protected Material.
4.3. The Licensee hereby declares and agrees to refrain from copying, modifying, adapting, translating or making derivative works based upon the Protected Material. The Licensee shall also refrain from reverse engineering, decompiling, disassembling or attempting in any other manner whatsoever to discover the source code of the Software.
4.4. “Smart-X” and “ControlUp” are trademarks owned by Smart-X. This Agreement does not grant the Licensee any rights (including, but not limited to, intellectual property rights), license, title or interest to these trademarks, and the Licensee agrees to refrain from claiming any such rights, license, title or interest with respect to these trademarks. The use of any of these trademarks without the prior written consent of Smart-X is strictly prohibited.
4.5. Any other trademarks, service marks, product names and company names or logos, directly or by reference, are the sole properties of their respective owners. Use of any of these marks, names and logos without the prior written consent of their owners is strictly prohibited.
5. The Licensee’s Responsibilities, Restrictions and Obligations
5.1. The Licensee shall be solely responsible:
5.1.1. For selecting qualified ControlUp Users to use the Main Console who are familiar with the information, calculations, and reports that serve as input and output of the End Points and the Main Console.
5.1.2. For any activities occurring during the use of the Software provided to the Licensee, whether such activity is made through one of the Licensee’s ControlUp User Accounts, even, without limitation, if such ControlUp User Account do not form part of the Licensee’s organization, and just provide services to the Licensee.
5.1.3. For using the Software for lawful purposes only. Accordingly, the Licensee shall not do anything that encourages conduct which would constitute a criminal offense or which encourages or might encourage “hacking” or “cracking,” or which might give rise to a civil liability or otherwise violate any applicable local or international laws or regulations.
5.1.4. For obtaining or providing, at the sole expense of the Licensee, all telephone, internet service and/or leased or dedicated access lines, telephone and computer equipment, including connection equipment and modems and any other hardware or software necessary to enable the operation of the Software. The Licensee declares and warrants that Smart-X shall not be held liable for any network-related problems that can be attributed to the operation of the Software. The Licensee also acknowledges that internet and network configuration changes might affect the Software’s performance and accessibility.
5.1.5 Note – the use of the Software might require one or more compatible devices, Internet access, and certain software, and obtaining updates or upgrades from time to time. Since the use of the Software involves hardware, software, and Internet access, the Licensee’s ability to use the Software might be affected by the performance of these components. The Licensee hereby declares and agrees that the compliance to such system requirements, which may be changed from time to time, shall be its sole responsibility.
5.2. The Licensee’s obligations under this Agreement include compliance with all applicable national and foreign laws, treaties and regulations relating to or arising from the Licensee’s use, and its Users’ use of the Software, including, without limitation, those related to the protection of intellectual property, data privacy, and the transmission of technical or personal data. Furthermore, the Licensee shall notify Smart-X immediately of any unauthorized known or suspected use of any ControlUp User Account and of any other known or suspected breach of security, and shall use reasonable efforts to immediately stop any known or suspected copying or distribution of content.
5.3. The following restrictions shall also apply to the Licensee’s use of the Software:
5.3.1. The Licensee shall refrain from accessing the Software in order to (a) create a competitive product or service; (b) create a product using similar ideas, features, functions or graphics of the Software; or (c) copy any ideas, features, functions or graphics of the Software.
5.3.2. The Licensee shall not be entitled to: (i) license, sublicense, sell, resell, transfer, assign, distribute or commercially exploit or make the Software available to any third party, in any manner whatsoever; or (ii) create Internet “links” to the Software or “frame” or “mirror” any content thereof on any other server, wireless or Internet-based device.
5.3.3. During the Licensee’s use of the Software, the Licensee shall not (i) send spam or otherwise distribute duplicative or unsolicited messages that violates any applicable laws; (ii) send or store infringing, obscene (including pornography, violence, terror, etc.), threatening, libelous, or otherwise unlawful or tortuous material, including, but not limited to, material harmful to children or violating privacy rights of a third party; (iii) send or store material containing viruses, worms, trojan horses or other harmful computer code, files, scripts, , or programs; (iv) attempt to gain unauthorized access to the Software or its related systems or networks; (vi) violate or cause Smart-X to violate any applicable law in any manner whatsoever; or (vii) use the Software for any other purpose than for your reasonable internal business purposes. Furthermore, the Licensee acknowledges that Smart-X assume no responsibility for monitoring the Licensee’s use of the Software for inappropriate content or conduct.
5.3.4. The Licensee shall not transfer any of its rights and obligations under this Agreement.
6. Warranties, Limitation Of Liability, Indemnification
6.1. THE SOFTWARE MAY CONTAIN ERRORS, BUGS AND OTHER PROBLEMS WHICH COULD CAUSE DAMAGES SUCH AS, BUT NOT LIMITED TO, SYSTEM CRASH OR FAILURE. THE COMPANY RESERVES THE RIGHT TO ALTER THE SOFTWARE AT ANY TIME ACCORDING TO ITS SOLE DISCRETION, AND ANY RELIANCE ON THE SOFTWARE OR ITS QUALITY OR PERFORMANCE SHALL BE AT THE LICENSEE’S SOLE RISK. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND ANY OTHER TERMS REFERENCED BY THIS AGREEMENT, THE SOFTWARE AND SUPPORT SERVICES (IF ANY) ARE PROVIDED TO YOU ON AN “AS-IS” BASIS WITH ALL FAULTS . SMART-X HEREBY DESCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WRRANTIES AND CONDITIONS OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR RILIABILITY OR AVAILABILITY, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK OF VIRUSES, AND OF LACK OF NEGLIGENCE ALL WITH REGARD TO THE SOFTWARE AND THE PROVISION OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE. ALSO, THERE IS NO WARRANTY OR CONDITION OF CORRESPONDENCE TO DESCRIPTION NO ORAL OR WRITTEN ADVICE OR INFORMATION PROVIDED BY SMART-X, OR ANYONE ON ITS BEHALF, INCLUDING, BUT NOT LIMITED TO, ITS OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, CONTRACTORS OR THE LIKE SHALL CREATE OR CONSTITUTE ANY FORM OF WARRANTY. ACCORDINGLY, THE LICENSEE AGREES THAT THE USE OF THE SOFTWARE IS AT ITS SOLE RISK, AND THAT NEITHER SMART-X NOR ANYONE ON ITS BEHALF, DO NOT AND CAN NOT WARRANT OR BE HELD LIABLE FOR THE PERFORMANCE OR RESULTS THE LICENSEE MAY OBTAIN BY USING THE SOFTWARE NOR THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR FREE OR MEET ANY REQUIREMENTS.
6.2. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SMART-X OR ANYONE ON ITS BEHALF BE HELD LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, CONFIDENTIAL OR OTHER INFORMATION OR OTHER INTANGIBLE LOSSES, FOR CORRUPTION OF DATA, FOR ANY COMPUTER FAILURE, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) (EVEN IF SMART-X HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SOFTWARE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SOFTWARE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA GENERATED IN CONECTION WITH THE SOFTWARE; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY GENERATED IN CONECTION WITH THE SOFTWARE; OR (v) ANY OTHER MATTER RELATING TO THE SOFTWARE.
6.3. NEITHER SMART-X NOR ANYONE ON ITS BEHALF INVOLVED IN CREATING, PRODUCING, MARKETING OR DISTRIBUTING THE SOFTWARE, SHALL BE HELD LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM USE OF OR INABILITY TO USE THE SOFTWARE DUE TO ANY CAUSE WHATSOEVER, INCLUDING ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO RECORDS OR THE SOFTWARE.
6.4. IN NO EVENT SHALL THE TOTAL LIABILITY OF SMART-X AND ANYONE ON ITS BEHALF FOR ALL DAMAGES, LOSSES, CLAIMS AND COSTS, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT PAID BY THE LICENSEE TO SMART-X DURING THE IMMEDIATELY PRECEDING PERIOD OF 1 YEAR.
6.5. We have put in place reasonable security measures and cloud-based backup system to help protect against the loss, misuse, and alteration of the information may be submitted by you in connection with the Software (“Information“). Smart-X also implements an advanced security method based on dynamic data and encoded session identifications, and Hosts the Software in a secure server environment that uses a firewall and other advanced technology to help prevent interference or access from outside intruders. These safeguards help prevent unauthorized access, and help to maintain data accuracy and appropriate use of the Software. However, despite such efforts, please note that no company, including Smart-X, can fully eliminate risks or guarantee the security of the Information; unauthorized entry or use, hardware or software failure, and other factors may compromise the security of the Information at any time, and we bear no liability for loss, use or disclosure of the Information arising in connection with the theft of your Information.
6.6. The Licensee shall be solely responsible for its actions when using the Software, and therefore, notwithstanding the above, the Licensee shall indemnify, defend, and hold Smart-X, and its directors, officers, employees and agents and their respective successors, heirs and assigns harmless (the “Smart-X Indemnities”), against any liability, damage, loss, or expense (including reasonable attorneys’ fees and expenses of litigation) incurred by or imposed upon any of the Smart-X Indemnities in connection with any claims, suits, actions, demands or judgments (“Claims”) arising out of any alleged liability (including, without limitation, actions in the form of tort, warranty or strict liability and regardless of whether such action has any factual basis) concerning any act or omission of You, and/or individuals assigned with an Administrator User Account all (a) in connection with the Software; or (b) which are in breach of any applicable law; or (c)which constitutes a breach of this Agreement; (d)which are in violation of any rights of any third party.
7. Confidentiality And Privacy
7.2. The Licensee hereby agrees that Smart-X may list the Licensee as a customer and reproduce the Licensee’s logo and registered trademark online or in printed materials solely to indicate that the Licensee is or was a licensee or user of the Software, unless and until the Licensee notifies Smart-X in writing of its refusal of such publicity.
7.3. The Software contains confidential information and trade secrets that Smart-X developed through the expenditure of a great deal of time and money (“Confidential Information”). The Licensee shall use the Confidential Information solely in accordance with this Agreement. This Agreement does not transfer to the Licensee in any manner whatsoever any rights including, without limitation, intellectual property rights in the Confidential Information and the Confidential Information shall remain the exclusive property of Smart-X. The Licensee shall maintain in strict confidence and refrain from using any information contained in the Software in any manner whatsoever, whether by himself or through others, and to refrain from transferring and/or publishing and/ or showing and/or disclosing the Information to any third party, whether directly or indirectly. In addition, the Licensee shall not allow any person, corporate or other third party to copy and/ or duplicate and/ or use the Information, in any manner whatsoever. Any information that is in the public domain would not constitute as confidential information.
7.4. The Licensee’s undertakings, as stated in this provision, are irrevocable and shall remain in full force and effect at all times, without limitation. The Licensee shall compensate Smart-X for all damages arising out of or resulting in any way from Licensee’s breach of any warranty as provided herein or otherwise provided by law.
8. Fees And Payments
8.1. Smart-X grants licenses regarding the ControlUp Software under several License Programs:
(1)A Free Licensing Program which is free and includes a limited amount of Concurrent Sessions
(2) Commercial Licensing Programs which are subject to the payment of fees in accordance with the configuration the Licensee subscribes for, as indicated in the License Program and maintained on Our Servers when operating in an Enterprise Mode and/or in the Offline Activation File when oprerating in a Standalone Mode or Private Cloud Mode.
8.2. In case the Licensee’s use of the Software is other then through a Free Licensing Program the following conditions shall apply:
8.2.1. The Licensee’s license to use the Software is subject, inter alia, to the full and accurate payment of fees, in their due date of the Annual or Monthly License Fee, as applicable. The Annual or Monthly License Fee shall be paid to Smart-X in advance for every year or month the Licensee subscribes for and shall be non-refundable even if the Licensee stops using the Software before the expiration of the Term for any reason whatsoever.
8.2.2. The Licensee shall provide Smart-X with complete and accurate billing and contact information. This information includes the Licensee’s legal company/organization name (if applicable), street address, telephone number, fax number (if applicable), e-mail address, and name of an authorized billing contact. In the event of a change of any of this information, the Licensee agrees to update the information within 30 days of any change. If the contact information the Licensee provides is false or fraudulent, Smart-X reserves, without derogating from any other rights and remedies entitled to it under applicable law, or this Agreement and any other terms incorporated by reference to this Agreement, to terminate this Agreement.
8.2.3. The Licensee shall be solely responsible for the payment of any taxes applicable by any law, resulting from the Licensee’s acceptance of this Agreement andor the Licensee’s use of the Software, exclusive of taxes based on Smart-X income. The Licensee agrees to hold Smart-X harmless from any claims and liabilities arising from the Licensee’s failure to report or pay such taxes.
8.2.4. In case of termination of this Agreement, for any cause whatsoever, the Licensee agrees that Smart-X shall be entitled to charge the Licensee’s credit card or any other means of payment provided by the Licensee to Smart-X, with regard to any unpaid fees, or other outstanding payment obligations of the Licensee toward Smart-X.
9. Term, Termination and Effect of Termination
9.1. This Agreement shall become effective as from the date the Licensee accepts the terms of this Agreement and shall maintain, unless otherwise agreed in this Agreement, in force as follows:
9.1.1. If the Licensee subscribes for a Free Licensing Program – for an unlimited period of time, and as long as the Licensee keeps using the Software according to the Free Licensing Program terms, subject to Smart-X’s right to terminate this Agreement, at any time, for any cause whatsoever by providing the Licensee with 30 (thirty) days prior written notice, or with immediate effect under section 9.4 below.
9.1.2. If the Licensee subscribes for a Commercial Licensing Program which is subject to the payment of fees – for a period of one (1) year or (1) month, as applicable (“Initial Term“). The term of the Agreement can be extended beyond the Initial Term for consecutive periods of one (1) year or month each (“Extended Term“) by paying Smart-X 30 days in advance the Annual / Monthly License Fee attributed to the Extended Term (each of the Initial Term and any Extended Term shall be referred to as the “Term“).
9.2. During each Term of this Agreement, Both the Licensee and Smart-X may terminate this Agreement, at any time, for any reason whatsoever (“Termination for Convenience“) by providing the other party – in the case of the Licensee with a 30 (thirty) days prior written notice, and in Smart-X’s case with a 60 (sixty) days prior written notice.
9.3. In case of Termination for Convenience made by Smart-X, the Licensee shall be entitled to receive, as a sole remedy, a refund equal to the proportional portion of the Annual License Fee already paid to Smart-X for the Term. In case of Termination for Convenience made by the Licensee, the Licensee shall not be entitled to any refund whatsoever.
9.4. Without derogating from Smart-X’s right to exercise Termination for Convenience as stated in sections 9.2 and 9.3 to this Agreement, Smart-X shall also be entitled to terminate this Agreement by a written notice with immediate effect in the following events (“Termination for Cause“):
9.4.1. A breach of any of the Licensee’s obligations under this Agreement and the breach has not been cured within 7 days from the date the Licensee received a written notice specifying such breach.
9.4.2. Current or future, governmental regulations prevent the continued delivery of Smart-X’s Services to the Licensee under this Agreement.
9.5. Upon termination of this Agreement, for any cause whatsoever, the following terms shall apply:
9.5.1. Any rights granted to the Licensee under this Agreement, shall terminate automatically and the Licensee shall not be entitled to receive any payment or refund of any fee paid by the Licensee (unless specifically expressed otherwise in this Agreement).
9.5.2. The Licensee shall remove and destroy any copies of the Software installed by it, and/or by anyone on its behalf.
10. Support & Maintenance
10.1. Smart-X DOES NOT offer support and/or maintenance services for free, unless and to the extent specifically indicated in the License Program, the Licensee subscribed for, and the Licensee may not assume or held Smart-X liable for any such undertaking. Notwithstanding the above, should Smart-X chooses to do so at its sole discretion, the Company shall be entitled to upgrade from time to time the Software to more advanced versions released, and if done so, Smart-X will not be under any obligation to retain any previous releases of the Software.
10.2. Smart-X may decide, however, from time to time, according to its sole discretion, provide Support Services to the Licensee , in whole, in part or in any other manner whatsoever, even if the Licensee subscribes for a Free Licensing Program. Smart-X shall also be entitled, according to its own discretion, to cease providing such Support Services without notice, and the Licensee shall not be eligible for any compensation for such cessation.
11.1. No Waiver. No delay or omission on the part of SMART-X in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a bar to or a waiver of any right on any future occasion.
11.2. Governing Law. This Agreement shall be governed, construed, interpreted and enforced according to the laws of the State of Israel. The parties hereby irrevocably subject themselves to the exclusive jurisdiction of the competent courts located in the district of Tel-Aviv, Israel in connection with any dispute relating to the Software, or this Agreement.
11.3. In the event that any provision of this Agreement or any provisions incorporated by reference to this Agreement shall be held by a competent court to be void, invalid, unenforceable or illegal the remaining provisions shall continue in full force and effect.
11.4. Notices. Any Notice to be given by the Licensee pursuant to this Agreement shall be sent to Smart-X via Registered Mail to the address stipulated in section 1.1 above, or via e-mail to the following E-mail address Support@smart-x.com, and shall be deemed to have been received by Smart-X- if sent via Registered Mail – 7 business days after the delivery of such notice, and if sent via e-mail – 2 business days after the Licensee confirms that it has been received by Smart-X. Any Notice to be given to the Licensee shall be made via Registered Mail or Email address, according to the addresses the Licensee fills in the Registration Form, and shall be deemed to have been received by the Licensee- if sent via Registered Mail – 7 business days after the delivery of such notice, and if sent via e-mail – 2 business days after such notice has been sent.
11.5. Entire Agreement. This Agreement, including any provisions incorporated by reference, constitutes the entire agreement with respect to the Software and to Smart-X’s provision of Services to the Licensee, and shall supersede all prior oral or written communications, understandings and representations with respect to the Software and to Smart-X’s provision of services to the Licensee. In the event that the terms of any of Smart-X’s policies or terms and conditions conflict with the terms of this Agreement, including any provisions incorporated by reference to this Agreement, the terms of this Agreement including any provisions incorporated by reference to this Agreement shall prevail.
11.6. Modifications. SMART-X may change, according to its sole discretion, the terms of this Agreement, from time to time, by posting a modified copy of the Agreement on Smart-X’s website, or by otherwise notifying the Licensee. The changes will be effective and binding as from the date that the notice will be posted; unless a different effective date is specified. Therefore, Smart-X recommends to enter, from time to time, to Smart-X’s website in order to review information concerning such modifications. THE LICENSEE’S CONTINUED USE OF THE SOFTWARE FOLLOWING DELIVERY AND/OR POSTING OF A NOTICE OF MODIFICATION SHALL BE DEEMED AS AN ACCEPTANCE OF SUCH MODIFICATION. IF ANY MODIFICATION SHALL BE UNACCEPTABLE TO THE LICENSEE, THE LICENSEE MUST TERMINATE THIS AGREEMENT IMMEDIATELY, AND NOTIFY SMART-X IMMEDIATELY SO THAT A TERMINATION OF THE LICENSEE’S LICENSE SHALL BE PROCESSED, AND SUCH TERMINATION IS THE LICENSEE’S ONLY RECOURSE.
11.7. Long term License. In case the Licensee holds a license which enables the use of the Software perpetually but the Licensee consistently refrained from subscribing for Support Services since the acquisition of such license, the Licensee shall be entitled to use the software in an Standalone Mode only and in its last version issued by Smart-X when the Licensee acquired such license, and subject to the terms and conditions of this Agreement, without being eligible for Support Services and/or Updates & Upgrades. If the Licensee wish to receive Support Services and/or Updates & Upgrades the Licensee will have to enter into one of the current License Programs, or to agree of any other special arrangement with Smart-X.
11.8. Assignment. The Licensee’s rights and obligations under this Agreement may not be assigned or transferred in any other way, by operation of law or otherwise without the prior written consent of Smart-X.
Last updated: December 2014.