IMPORTANT – READ CAREFULLY: BY DOWNLOADING, INSTALLING, AND/OR USING THE CONTENT (DEFINED BELOW), YOU (DEFINED BELOW) AGREE AND ACCEPT TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT (DEFINED BELOW), INCLUDING THOSE ADDITIONAL TERMS AND CONDITIONS AND POLICIES REFERRED TO HERE AND/OR AVAILABLE BY HYPERLINK. THESE TERMS FORM A LEGALLY BINDING CONTRACT BETWEEN CUSTOMER AND PROVIDER (AS DEFINED BELOW) IN RELATION TO YOUR USE OF THE CONTENT, AND MAY BE UPDATED BY PROVIDER AT ANY TIME AT ITS SOLE DISCRETION. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE CONTENT, AND YOU MUST DELETE OR RETURN THE UNUSED CONTENT.
This Terms and Conditions (the “Agreement”) is hereby entered into and agreed upon by you, either an individual or an entity (“You” or “Customer”) and ThriveDX SaaS Ltd., Company Number 515067486, having its address in Derech Menachem Begin 121, Tel Aviv, Israel and its affiliates (“Provider”). Customer and Provider together, the “Parties” and each, a “Party”.
1.1 “Content” means training materials, videos, software and other Intellectual Property created or licensed by the Provider and provided to the Customer under this Agreement;
“Customer Data” means all data, works and materials generated as a result of the use of the Content by the Customer;
“Documentation” means the documentation for the Services produced by the Provider and delivered or made available by the Provider to the Customer;
“Effective Date” means the date set forth in the Quote;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the Party affected, including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Maintenance Services” means the general maintenance of the hosted Services;
“Permitted Purpose” means use of the Services by the Customer and its authorized personnel for e-Learning in accordance with the Agreement.
“Personal Data” has the meaning given to it in the Data Protection Act 1998;
“Schedule” means any schedule attached to the main body of this Agreement;
“Services” means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;
“Term” means the term of this Agreement, commencing in accordance with Clause 2.1
2.1 This Agreement shall commence as of the date set forth in the Quote and shall remain in effect through the end of the term stated in the Quote (“Term”).
3.1 The Provider shall create Content and provide it to the Customer in an appropriate form promptly following the Effective Date.
3.2 The Provider hereby grants to the Customer a license to use the Content for the Permitted Purpose, during the Term.
3.3 Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the license granted by the Provider to the Customer under Clause 3.2 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Content;
(b) the Customer must not permit any unauthorized person to access or use the Content;
(c) the Customer must not use the Content to provide services to third parties;
(d) the Customer must not republish or redistribute any Content or material provided by the Provider, except to the extent permitted on their own systems under this Agreement
3.4 The Provider may suspend the provision of the Content if any amount due to be paid by the Customer to the Provider under this Agreement or the Quote is overdue, and the Provider has given to the Customer at least 30 days written notice, following the amount becoming overdue, of its intention to suspend providing Content on this basis.
4. Maintenance Services
4.1 Since Provider’s SCORM packages will run on the Customer’s Learning Management System (LMS) and therefore considered as self-hosted by the Customer, Provider cannot guarantee the service availability of the hosting provider, specifically the third party LMS on which Provider’s SCORM Content is installed. However, the functioning of the SCORM Content itself within the Customer’s LMS is within the reasonable control of Provider. To confirm that the SCORM Content functions properly, Provider shall provide adequate testing of the SCORM Content prior to installation, and after the deployment, of the Content on the Customer’s LMS.
4.2 The Provider shall provide the Maintenance Services to the Customer during the Term.
5. No assignment of Intellectual Property Rights
5.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
6.1 “Confidential Information” means any nonpublic or proprietary information, in tangible or intangible form, that a party to this Agreement (“Disclosing Party”) discloses to the party that receives such information (“Receiving Party”). Confidential Information includes the Content, Documentation, any know-how, trade secrets and any other Intellectual Property or proprietary rights or information thereto. Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available without Receiving Party’s breach of any obligation owed to Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s disclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source other than Disclosing Party other than by the breach of an obligation of confidentiality; (iv) is independently developed by Receiving Party without reference to or use of the Confidential Information; or (v) required to be disclosed by a court or governmental authority or by applicable law or regulation, provided however, that (a) the Receiving Party notifies the Disclosing Party of such disclosure, to the extent not limited by law; and (b) to the extent possible, provides the discloser with the opportunity to oppose the disclosure or obtain a protective order.
It is hereby agreed that, without limiting the foregoing, all Intellectual Property in and to the Content, and any and all Documentation, user guides and manuals, and other data and materials related to the foregoing or made available by Provider to Customer pursuant to this Agreement, are considered as Confidential Information of Provider.
6.2 Protection. Receiving Party may use Confidential Information of Disclosing Party; (a) to exercise its rights and perform its obligations under this Agreement; or (b) in connection with the parties’ ongoing business relationship. Receiving Party will not use any Confidential Information of Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of Disclosing Party only to the employees or contractors of Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than Receiving Party’s duty hereunder. Receiving Party will protect Confidential Information from unauthorized use, access, or disclosure in the same manner as Receiving Party protects its own confidential or proprietary information of a similar nature but with no less than reasonable care. The Parties will each be responsible for any breach of this Agreement by their consultants or agents and each Party agrees to take all reasonable measures to restrain its consultants or agents from disclosure or improper use of the other Party’s Confidential Information. Confidential Information shall remain at all times the property of the Disclosing Party. No rights to use, license or otherwise exploit the Confidential Information are granted to the Receiving Party or its agents, by implication or otherwise.
6.3. Data Rights. You agree that Provider will collect and track technical and related information about the use of the Content, which may include internet protocol address, hardware identifying information, operating system, application software, peripheral hardware, and software usage statistics, to assist with the operation and function of the Content, the provision of updates, support, invoicing.
7. Data protection
7.1 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement, and that the processing of that Personal Data by the Provider for the Permitted Purpose in accordance with this Agreement will not breach any applicable data protection or data privacy laws (including the Data Protection Act 1998).
7.2 To the extent that the Provider processes Personal Data disclosed by the Customer, the Provider warrants that it has in place appropriate security measures (both technical and organizational) against unlawful or unauthorized processing of that Personal Data and against loss or corruption of that Personal Data.
8.1 The Provider warrants to the Customer that:
(a) the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
(b) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider’s rights and the fulfilment of the Provider’s obligations under this Agreement;
(c) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement;
8.2 The Provider warrants to the Customer that the hosted Services, when used by the Customer in accordance with this Agreement, will not breach any laws, statutes or regulations applicable including under United States law.
8.3 The Provider warrants to the Customer that the Content, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
8.4 If the Provider reasonably determines, or any third party alleges, that the Content infringes any person’s Intellectual Property Rights, the Provider must, at its own cost and expense:
(a) modify the Content in such a way that they no longer infringe the relevant Intellectual Property Rights; or
(b) procure for the Customer the rights to use the Content in accordance with this Agreement;
8.5 The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
8.6 All of the Parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
9. Acknowledgements and warranty limitations
9.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives
no warranty or representation that the Content will be wholly free from defects, errors and bugs.
9.2 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Content or the use of the Content by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
You will indemnify Provider for, and hold it harmless from, any claims, proceedings, suits, demands, liability, costs and expenses, including legal expenses and attorneys’ fees arising from or in connection with, and defend and settle at its own expense, any action or other proceeding brought against Provider or anyone on its behalf, to the extent that such action or proceeding is based on: (i) any breach by You or anyone on Your behalf of this Agreement; (ii) any negligent or willful misconduct; (iii) breach of confidentiality obligations; iv) violation or infringement of Intellectual Property; v) You making representations or warranties regarding Provider’s Content; and (vi) any violation of any applicable law or regulation. You will pay any and all costs, damages, and expenses (including but not limited to attorneys’ fees) awarded against Provider in any such action or proceeding.
11. Limitation of Liability
11.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PROVIDER, ITS DIRECTORS, OFFICERS, AGENTS, SUPPLIERS AND LICENSORS, BE LIABLE TO YOU (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) (I) FOR MORE THAN THE AMOUNT OF LICENSE FEES THAT YOU HAVE PAID TO COMPANY IN THE PRECEDING (12) TWELVE MONTHS FOR THE APPLICABLE SOFTWARE;(II) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE,OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOSS OF USE OF THE SERVICE OFFERING, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS, OR OTHER ECONOMIC DAMAGE , ARISING OUT OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, EVEN IF LUCY SECURITY OR A DEALER AUTHORIZED BY LUCY SECURITY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (III) IF YOU, OR ANYONE ON YOUR BEHALF HAVE MODIFIED, CHANGED OR ALTERED ANY PART OF THE SOFTWARE AND/OR THE CONTENT.
11.2 Neither Party shall be liable to the other Party in respect of any losses arising out of a Force Majeure Event.
12. Force Majeure Event
12.1 If a Force Majeure Event gives rise to a failure or delay in either Party performing any obligation under this Agreement other than any obligation to make a payment, that obligation will be suspended for the duration of the Force Majeure Event.
12.2 A Party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that Party performing any obligation under this Agreement, must:
(a) promptly notify the other Party; and
(b) inform the other Party of the period for which it is estimated that such failure or delay will continue.
12.3 A Party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
13.1 Either Party may terminate this Agreement or the relevant Quote and/or Purchase Order immediately by giving written notice of termination to the other Party if the other Party commits a material breach of this Agreement.
13.2 Either Party may terminate this Agreement or the relevant Quote and/or Purchase Order immediately by giving written notice of termination to the other Party if:
(a) the other Party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up, other than for the purpose of a solvent company reorganization where the resulting entity will assume all the obligations of the other party under this Agreement.
14. Effects of Termination
14.1 Upon the termination of this Agreement or the relevant Quote and/or Purchase Order, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 6, 7, 10, 11, 14, 17 and 18.
14.2 Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement or the relevant Quote and/or Purchase Order shall not affect the accrued rights of either Party.
15.1 Any notice from one Party to the other Party under this Agreement must be given by one of the following methods (using the relevant contact details set out in the Quote):
(a) delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery;
(b) sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting; or
(c) sent by email, in which case the notice shall be deemed to be received once a confirmation is received
providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
For avoidance of doubt, “Business Day” means any weekday other than Christian holidays, and “Business Hours” means the hours of 09:00 to 17:00 CET on a Business Day;
16.1 The Provider must NOT subcontract any of its obligations under this Agreement without the prior written consent of the Customer.
17.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the Party not in breach.
17.2 If any provision of this Agreement and/or Quote and/or Purchase Order is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the Parties, in which case the entirety of the relevant provision will be deemed to be deleted).
17.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the Parties.
17.4 Neither Party may without the prior written consent of the other Party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
17.5 This Agreement is made for the benefit of the Parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the Parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
17.6 This Agreement shall constitute the entire agreement between the Parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the Parties in respect of that subject matter.
17.7 This Agreement shall be governed by and construed in accordance with laws of Israel.
17.8 The courts of Tel Aviv, Israel shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
18.1 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
18.2 The Clause headings do not affect the interpretation of this Agreement.
18.3 In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
If you are looking to connect with someone from our team on-site, please leave your contact information here and we will connect with you directly during the conference.