THIS END-USER LICENSE AGREEMENT (INCLUDING ANY AMENDEMENT THERETO) (“Agreement”) is made by and between On Track Innovation Ltd. (including any of its subsidiaries, parents and affiliates, the “Company” or “OTI”), and you, the licensee (“Licensee”, “You” or “Your”), with both the Company and Licensee being sometimes referred to herein as a “Party” or collectively as the “Parties.”
IMPORTANT- READ CAREFULLY. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND THE COMPANY AND ENFORCEABLE AGAINST YOU. BY USING THE PRODUCT (AS DEFINED BELOW), YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT DO NOT USE THE PRODUCT OR
ANY PART THEREOF. THIS AGREEMENT CONSTITUTES THE ENTIRE UNDERSTANDING AND AGREEMENT OF THE PARTIES HERETO WITH RESPECT TO YOUR USE OR PURCHASE OF THE PRODUCT AND SUPERCEDES THE TERMS AND CONDITIONS OF ANY PREVIOUS AGREEMENT WITH RESPECT TO SUCH USE OR PURCHASE OF THE PRODUCT. OTI RETAINS
THE RIGHT TO MODIFY AND CHANGE THIS AGREEMENT, SUBJECT TO APPLICABLE LAW, AND YOUR CONTINUED USE OF THE PRODUCT SHALL BE CONSIDERED AS YOUR CONTINUED ACCEPTANCE OF THE TERMS OF THIS AGREEMENT, AS AMENDED.
- “Product” means all hardware, firmware, software (including, without limitation, PC tools, sample source code, documentation, web services and SIM & data services of the Company).
- “License” means the license granted to you in accordance with the terms and conditions of this Agreement, as further detailed in Section 3 below.
2. UPDATES TO THIS AGREEMENT
OTI reserves the right, at its sole discretion, to change, modify, add or remove portions of this Agreement from time to time, and at any time, by posting the amended Agreement on OTI’s website (available at: www.otiglobal.com). OTI will send you a notification via the email address provided by You whenever OTI updates this Agreement, as well as publish a notice regarding such updated Agreement on OTI’s website. Unless otherwise stated, all amended terms shall be effective immediately after they are initially posted. You will be deemed to have accepted any changes to the Agreement by continuing to use the Product.
3. GRANT OF LICENSE; OWNERSHIP
Subject to the terms and conditions of this Agreement, OTI hereby grants you a revocable, non-transferable, non-exclusive, non-sub licensable License, to use the Product. You agree not to modify, rent, lease, loan, sell, assign, distribute, reverse engineer, or create derivative works based on any element of the Product except as expressly authorized by OTI in writing. You acknowledge and agree that any intellectual property integrated in the Product, as well as any software, documentation, firmware, etc. (the “IP”), which You receive as part of this Agreement, is and shall remain perpetually proprietary property of the Company that may be protected under international patent, copyright, trademark and trade secret laws as well as international treaties. You further acknowledge and agree that all right, title, and interest in and to the IP are and shall remain the property of the Company.
The License shall be subject to the following restrictions:
- You will not abuse, hack, attack, interfere with, gain unauthorized access to, or disrupt the Product or do anything that is not specifically allowed under this Agreement.
- You will not change the Product, whether by bypassing its data communication flow as originally defined by OTI, or otherwise, unless receiving a prior written approval from OTI to do so.
- You will not access the Product in a way that could violate any applicable law, or in any manner not expressly authorized in writing by OTI under this Agreement or by the Product’s manual instructions.
- You will not use the Product to infringe on the intellectual property or privacy rights of others, to obtain personal information or surveillance of others without written authorization, or to otherwise violate any applicable law.
- HAZARDOUS APPLICATIONS. THE PRODUCT IS NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF A NUCLEAR FACILITY, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC
CONTROLS OR OTHER DEVICES OR SYSTEMS IN WHICH A MALFUNCTION OF THE PRODUCT WOULD RESULT IN FORSEEABLE RISK OF INJURY OR DEATH
TO THE OPERATOR OF THE PRODUCT OR TO OTHERS (“HAZARDOUS APPLICATIONS”). YOU ASSUME ANY AND ALL RISKS, INJURIES, LOSSES, CLAIMS AND ANY OTHER LIABILITIES ARISING OUT OF THE USE OF THE PRODUCT IN ANY HAZARDOUS APPLICATIONS.
5. LIMITATIONS OF THE PRODUCT
While we aim for the Product (including any notifications or other alerts provided by the Product) to be highly reliable and available, it is not intended to be reliable or available 100% of the time, and we do not guarantee that you will always receive notifications. The Product is subject to sporadic interruptions and failures for a variety of reasons beyond OTI’s control. You acknowledge these limitations and agree that OTI is not responsible for any damages or injury allegedly caused by the failure or delay of the Product to reflect current status or notifications. You further acknowledge that OTI does not guarantee that the Product will not be compromised or circumvented by third parties.
6. TERM & TERMINATION
This Agreement and the License are effective on the date you first use the Product and shall continue for as long as you use the Product or until this Agreement is terminated. OTI may terminate this Agreement at any time if you fail to comply with the terms of this Agreement or with any other document you have signed with OTI. Upon termination of this Agreement, the License
shall terminate and you must immediately stop using the Product.
7. UPDATES TO THE PRODUCT
You understand that the Product is an evolving one. OTI may require that you accept updates to the Product. The updates to the Product may add new or remove existing functionality. By using the Product, you consent to these updates and undertake to perform any update OTI may instruct to be
made. You may need to update third party software from time to time in order to receive the Product and use OTI’s software and hardware. It is hereby clarified that failure to update the Product may impair the Product’s functionality, and OTI shall have no responsibility and/or liability
with respect to any such functionality issues that result from failure to update the Product as required by OTI and OTI shall not be obligated to provide any support for the Product if such updates have not been made by You.
You agree to indemnify and hold OTI, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners (the “OTI Parties”) harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of
the Product, any violation by you of this Agreement or any other document you signed with OTI, or any breach of the representations, warranties, and covenants made by you herein. OTI reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are
required to indemnify OTI, and you agree to cooperate with OTI’s defense of these claims. OTI will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
You agree that the provisions in this paragraph will survive any termination of your use of the Product, this Agreement and the License.
9. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
- EXCEPT TO THE EXTENT SPECIFICALLY PROVIDED IN THIS AGREEMENT OR IN THE PRODUCT WARRANTY, USE OF THE PRODUCT IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD).
- YOU USE THE PRODUCTS AT YOUR OWN RISK, AND OTI IS NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS.
- NO ADVICE OR INFORMATION OBTAINED FROM OTI OTHER THAN THE DOCUMENTATION PROVIDED WITH THE PRODUCT SHALL CREATE ANY WARRANTY NOT STATED IN THIS AGREEMENT.
- THESE LIMITATIONS OF LIABILITY EXTEND TO ALL CLAIMS, WHETHER KNOWN OR UNKNOWN, EXCEPT AS PROVIDED IN THIS AGREEMENT.
- THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE PRODUCT, IS BORNE BY YOU. THIS PRODUCT IS NOT FAULT TOLERANT AND SHOULD NOT BE USED IN ANY ENVIRONMENT WHICH REQUIRES THIS. YOU HEREBY EXPRESSLY AGREE NOT TO USE OR RELY ON THE PRODUCT FOR ANY APPLICATIONS THAT MAY RESULT IN ANY DAMAGE IF FAILED OR ANY OTHER CRITICAL APPLICATIONS, OR FOR HANDLING SENSITIVE, PRIVATE, OR CONFIDENTIAL INFORMATION OF ANY SORT. THE SECURITY MECHANISMS IMPLEMENTED BY THE PRODUCT HAVE INHERENT LIMITATIONS, AND YOU MUST DETERMINE THAT THE PRODUCT SUFFICIENTLY MEET YOUR REQUIREMENTS.
OTI DOES NOT WARRANT OR GUARANTEE THAT THE FUNCTIONS PERFORMED BY THE PRODUCT WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
YOU HEREBY AGREE TO COMPLY WITH ALL RELEVANT EXPORT LAWS AND REGULATIONS, AND TO ENSURE THAT THE PRODUCT IS NOT EXPORTED IN VIOLATION OF SUCH APPLICABLE LAWS.
THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE PRODUCT IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
10. LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE PRODUCT UNDER ANY CAUSE OR
ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT OTI SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY
WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE PRODUCT. YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT OTI IS NOT AND SHALL NOT BE LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD OTI LIABLE, FOR ANY LOSS RELATING TO: UNFORESEEABLE CIRCUMSTANCES AND ACTS OF GOD; ANY VIOLATIONS BY LICENSEE OF ANY TERMS OF ANY DOCUMENTS SIGNED BY LICENSEE AND OTI, INCLUDING WITHOUT LIMITATION THIS AGREEMENT.
IN NO EVENT SHALL THE COMPANY BE LIABLE TO ANY OTHER THIRD PARTY FOR ANY LOSSES, COSTS OR DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES FOR LOST PROFITS, INTERRUPTION OF BUSINESS, LOSS OF TECHNOLOGY OR LOST DATA, HOWEVER ARISING, WHETHER UNDER THEORIES OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE,
EVEN IF THE COMAPNY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WITHOUT LIMITING THE FOREGOING, YOUR SOLE REMEDY FOR ANY LIABILITY OF OTI ONLY FOR DIRECT DAMAGES SHALL BE THE REPLACEMENT OF THE PRODUCT. IN THE EVENT SUCH REMEDY IS NOT FEASIBLE, OTI’S LIABILITY SHALL NOT EXCEED THE MONTHLY FEES ACTUALLY PAID BY YOU FOR THE PRODUCT AND OUR SERVICES, IN THE SIX (6) MONTHS PRECEEDING THE EVENT WHICH GAVE RISE TO SUCH LIABILITY. FOR AVOIDANCE OF DOUBT, IT IS HEREBY CLARIFIED THAT SUCH FEES SHALL NOT INCLUDE ANY PAYMENT MADE BY YOU TO ANY THIRD PARTY SERVICE PROVIDERS, INCLUDING ANY TECHNICIAN.
11. CONFIDENTIALITY OBLIGATIONS.
- General. “Confidential Information” means any and all confidential, technical, business or proprietary information disclosed to You by the Company, directly or indirectly, including, but not limited to, in the case of the Company, the Company’s Product, confidential information regarding the Company’s business strategies and practices, methodologies, trade secrets, know-how, pricing, technology, software, product plans, services, relationships with any third party, client lists, and confidential information regarding the Company’s employees, clients, vendors, consultants and affiliates.
- Use of Confidential Information. You shall treat as confidential in perpetuity all Confidential Information received from the Company, shall not use such Confidential Information except as expressly set forth herein or otherwise authorized in writing, shall implement reasonable procedures to prohibit the unauthorized use, disclosure, duplication, misuse or removal of the Company’s Confidential Information and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, You shall use at least the same procedures and degree of care which You use to prevent the disclosure of Your own confidential information of like importance to prevent the disclosure of Confidential Information disclosed to You by the Company under this Agreement, but in no event less than reasonable care. Except as expressly authorized in this Agreement, You shall not copy Confidential Information of the Company without the Company’s prior written
- Exclusions. Confidential Information shall not include, or shall cease to include, as applicable, Confidential Information that: (i) is or becomes generally available to the public through no improper action or inaction by You; (ii) or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that You provide prompt, advanced written notice thereof to enable the Company to seek a protective order or otherwise prevent such disclosure. In the event such a protective order is not obtained by the Company, You shall disclose only that portion of the Confidential Information which the Company’s legal counsel advises that it is legally required to
- Remedies. If You breach any of Your obligations with respect to confidentiality or unauthorized use or disclosure of Confidential Information hereunder, the Company is entitled to obtain, notwithstanding any language to the contrary in this Agreement, equitable relief to protect its interest including injunctive relief.
- Upon the Company’s written request and upon termination of this Agreement, You shall promptly destroy and/or remove, at the Company’s option, all copies of the Product.
- Privacy Statement. You acknowledge and agree that Your use of the Product is subject to privacy laws and treaties applicable to the jurisdiction in which such use is made. Your use of the Product and the securing for confidentiality purposes of data use, access, gathered or identified by the Product is solely Your responsibility. You shall be liable to the Company and any applicable third party for any and all of Your acts or omissions.
- This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof.
- Force Majeure. The Company shall not be liable under this Agreement by reason of any failure or delay in the performance of its obligations under this Agreement on account of strikes, shortages, riots, insurrections, fires, floods, storms, explosions, acts of nature, acts of terrorism, war, governmental action, labor conditions, earthquakes, material shortages or any other cause that is beyond the reasonable control of the Company.
- Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed by the laws of the State of New York, in the United States of America. Each of the parties hereby agree and irrevocably consent to personal jurisdiction and venue in any federal or state court within New York, NY, having subject matter jurisdiction, for the purposes of any action, suit or proceeding arising out of or relating to this Agreement; This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
- You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein without the express written consent of OTI. OTI may assign or transfer this Agreement at its sole discretion.
- If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms.
- Full Power. You warrant that You have full power to enter into and perform this Agreement, and the person signing this Agreement on Your behalf has been duly authorized and empowered to enter into this Agreement.
- Survival. The Parties agree that their respective rights, obligations and duties under which by their nature extend beyond the termination of this Agreement shall survive any termination or expiration of this Agreement.