TERMS AND CONDITIONS
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY REGISTERING TO OUR SERVICE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU“ OR “YOUR“ SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on December 1, 2017. It is effective between You and Us as of the date of You accept this Agreement.
“Affiliate“ means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control“ for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity
“Agreement“ means this Master Subscription Agreement.
“Beta Services“ means Our services that are selectively available to specific customers.
“Documentation” means Our online user guides, documentation, and help and training materials, as updated from time to time, accessible via help.iotm.mobi or login to the applicable Service.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs, data harvesters (not working through our official APIs) and trojan horses.
“Non-IoTM Solutions 3rd Party Technologies“ means 3rd party Web-based or offline software application incorporated into the Services by IoTM. For example: Qliktech’s data handling engine and visualization products.
“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates and/or resellers, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. In any event of conflict between the terms of this agreement and the terms stated in the Order Form, the terms stated in the Order Form shall prevail.
“Purchased Services“ means Services that You or Your Affiliate purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
“Services” means the products and services that are ordered by You under a free trial or an Order Form and made available online by Us, including associated offline components, as described in the Documentation. “Services” exclude Non-IoTM Solutions 3rd Party Technologies.
“User” means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
“We“, “Us“ or “Our“ means IoTM Solutions Ltd.
“You“ or “Your“ means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Your Data” means cellular connectivity related data that is collected from the Connectivity Service Provider’s Connected Device Platform (CDP) web service API, using CDP credentials that you supplied to Us through our web portal application or any other data supplied by You, or to which we gain access, with respect to the Services. Your Data is collected and processed by IoTM for the purpose of rendering the Services.
2. FREE TRIAL
If You register on our website for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s). Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA STORED BY THE SERVICES AND ANY ANALYTICS GENERATED BY THE SERVICE DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, BEFORE THE END OF THE TRIAL PERIOD.NOTWITHSTANDING SECTION 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
3. OUR RESPONSIBILITIES
3.1. Provision of Purchased Services. We will (a) make the Services available to You pursuant to this Agreement and the applicable Order Forms, (b) provide Our standard email support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give at least 8 hours electronic notice and which We shall schedule to the extent practicable during the weekend hours between 5:00 p.m. Friday and 3:00 a.m. Monday UTC), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, IT Hosting Provider failure or delay, Non-IoTM Solutions 3rd Party Technologies failure or delay, or denial of service attack.
3.2. Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 8.3 (Compelled Disclosure) below, or (c) as You expressly permit in writing. In the course of providing IoTM Services we will obtain data from registered data sources in read only mode without altering your data sources or SIM connection status in any way. In cases where we will offer write enabled editing functionality (e.g. modification of a SIM connection activation mode) we will ask for a specific online opt-in confirmation to perform this action and We will have no liability for any damages or harm You might incur due to the execution of the requested action.
We may use Your Data for the same purpose the Data was provided to Us and in connection with the reason for which it was provided, including in order to provide (i) You with access to the Services, (ii) respond to Your emails, submissions, questions, comments, requests, and complaints, (iii) provide You with customer service, technical assistance and support, subject to our sole consideration and internal policies, (iv) send You confirmations, updates, security alerts, support and administrative messages and otherwise facilitate Your use of, and Our administration and operation of, the Services; and (v) monitor and analyze usage and trends to improve and personalize the Services.
3.3 Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
3.4 Beta Services. From time to time, We may invite You to try Beta Services either for consideration or at no charge. You may accept or decline any such trial at Your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. We may discontinue Beta Services at any time at Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
4. USE OF SERVICES
4.1 Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Services are purchased as subscriptions, (b) You may add new subscriptions from time to time. Such new subscriptions shall require execution of a new Order Form for additional subscriptions.
4.2 Usage Limits. Services are subject to usage limits, including, for example, the quantities specified in Order Forms. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 6.2 (Invoicing and Payment).
4.3 Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, including the means by which you acquired access to Your Data, for example CDP credentials you received from your Connectivity Service Provider, and further warrant that You have obtained all third party consents (including Connectivity Service Provider or CDP vendor) required under applicable law with respect to the collection and use by Us of Your Data with respect to the Services, and have the full and unrestricted right and authority to grant Us permission to access Your Data and give Us the right to upload, post, incorporate and publish such content and information through the Services, all without infringing or violating any copyrights, privacy rights, publicity rights, trademarks or any other contractual, intellectual property or proprietary of any third party. You further warrant and undertake that You shall be solely responsible for any content and usage including any damage, liability, cost, expense or loss to Us or any other third party resulting therefrom, and that You shall assume all risk in connection therewith, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Us promptly of any such unauthorized access or use, (d) use Services only in accordance with the Documentation and applicable laws and government regulations, and (e) comply with terms of service of Non- IoTM Applications with which You use Services (f) comply with terms of Non-IoTM Solutions 3rd Party Technologies.
4.4 Usage Restrictions. You will not, and will not authorize any User or other third party to, (a) make any Service available to, or use any Service for the benefit of, anyone other than You or Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service , or include any Service in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) modify, adapt or revise the Services, or any part thereof, or otherwise use parts, portions or elements of the Services, or create derivative works or any enhancement or adaptations based on the Services, or any part thereof, or interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or its related systems or networks, (g) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (j) frame or mirror any part of any Service, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (k) access any Service in order to build a competitive product or service, or (l) reverse engineer any Service (to the extent such restriction is permitted by law).
4.6. Removal of Registered CDP account. If We are required by a licensor or any other third party, to remove, modify or amend any part of Your Data, or receive information that Your Data may violate applicable law or third-party rights, or we are required by an authorized entity to remove your registered CDP account credentials from the IoTM Services, We may so notify You and in such event You will promptly remove, amend or adapt such registered CDP account from the IoTM Service using the applicable management section in our web portal application; all subject and in accordance to applicable law. If You do not take required action in accordance with the above, We may delete, amend or modify any part of Your Data, and/or disable the applicable CDP account registration and/or Service until the potential violation is resolved. Notwithstanding anything to the contrary, We may grant any third party any right to review, amend, modify, remove or delete data as required by applicable law.
4.7 Connectivity Data. In the course of providing You with the Services contemplated in the Agreement, We collect, use, process and store Your Data from all registered CDP accounts that you registered to the Service. This may include, but is not limited to, provisioning, historic audit trail, Usage and invoicing data. You agree that We process Connectivity Data to create and compile anonymized, aggregated datasets and/or statistics about Quality of Service, Sales, Usage, Savings, Subscription Lifecycle, Activations, Deactivations, Net Activations, Subscriptions and end customer aging, and behavior patterns in order to: (a) Improve existing IoTM services (b) Provide you with IoTM Business Analytics, Business Rules Management and other services; (b) Enable anonymous ranking of IoTM industry Parameters; (c) Commercially use, disclose and transfer anonymous, non-personal identifiable, non-specific aggregated statistics and analysis to 3rd parties.
5. Non-IoTM Solutions PROVIDERS
5.1. Non-IoTM Solutions Applications and Your Data. If You install or enable a Non-IoTM Solutions Application for use with a Service, You grant Us permission to allow the provider of that Non-IoTM Solutions Application to access Your Data as required for the interoperation of that Non-IoTM Solutions Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by a Non-IoTM Solutions Application.
5.2. Integration with Non-IoTM Solutions Applications. The Services may contain features designed to interoperate with Non-IoTM Solutions Applications. To use such features, You may be required to obtain access to Non-IoTM Solutions Applications from their providers, and may be required to grant Us access to Your account(s) on the Non-IoTM Solutions Applications. If the provider of a Non-IoTM Solutions Application ceases to make the Non- IoTM Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing those Service features without entitling You to any refund, credit, or other compensation.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
6.1. Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services purchased and not actual usage, (ii) payment obligations are non- cancelable and fees paid are non-refundable.
6.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form as long as You do not terminate the use of the Purchased Service as set forth in Section 12.3 (Termination). Such charges shall be made in arrears, either monthly, quarterly, annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in arrears and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
6.3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with Section 13.2 (Manner of Giving Notice), before suspending services to You.
6.5. Payment Disputes. We will not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6.6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 6.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
6.7. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
7. PROPRIETARY RIGHTS AND LICENSES
7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors reserve and retain all of Our/their right, title and interest in and to the Services, including any and all technologies, tools, programs software, objective code, source code, applications, implementations, interfaces, features and functionalities used or included in the Services, as well as any inventions, developments or improvements associated or included therein, as may be from time to time, including all intellectual property rights related to, derived from or associated thereto. No rights are granted to You hereunder other than as expressly set forth herein.
7.2. License by Us to Use platforms provided by us with respect to the Services. We grant to You a worldwide, non-exclusive, non-assignable, non-sub-licensable, limited-term license, under Our applicable intellectual property rights and licenses, to use any platform or product provided by us with respect to the Services or acquired by You pursuant to Order Forms, subject to those Order Forms, this Agreement and the Documentation.
7.3. License by You to Host Your Data and Applications. You grant Us and Our Affiliates a worldwide, limited- term license to obtain, host, synchronize, analyze, copy, transmit, display and otherwise use Your Data, any Non-IoTM Solutions Applications and program code created by or for You, as necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data or any Non-IoTM Solutions Application or program code.
7.4 Ownership of the Results of the Services. Subject to the payment of the applicable fees agreed in the Order Form, all right, title, and interest in and to any results of the Services (such as the processes data) and any intellectual property rights thereto shall be owned solely and exclusively by You. Notwithstanding the foregoing, We shall be entitled to use, at Our sole discretion, any such results for any purpose, on an anonymous basis.
7.4 Feedbacks. If You send Us feedbacks or suggestions regarding the Services, You acknowledge that We may use them at Our sole discretion, without any obligation to compensate You in any manner for such feedbacks or suggestions.
8.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing or in any other form, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the information with respect to the Services; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party, as can be proven by written records.
8.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care), and undertakes (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 8.2.
8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
9.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2. Our Warranties. We warrant that (a) this Agreement, the Order Forms and the Documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Purchased Services during a subscription term, (c) the Purchased Services will perform materially in accordance with the applicable Documentation, (d) subject to Section 5.2 (Integration with Non-IoTM Solutions Applications) and any of the terms hereof, We will not materially decrease the functionality of the Purchased Services during a subscription term, and (e) the Purchased Services will not introduce Malicious Code into Your systems. For any breach of an above warranty, Your exclusive remedies are those described in Sections 12.3 (Termination) and 12.4 (Refund or Payment upon Termination).
9.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. WE DISCLAIM ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
10.1. Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of a Purchased Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, or a final judgment, provided that You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Service so that it no longer infringes or misappropriates, without breaching Our warranties under Section 9.2 (Our Warranties), (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Non-IoTM Solutions 3rd Party Technologies or Your breach of this Agreement.
10.2. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of any Service in breach of this Agreement, infringes or misappropriates such third party’s rights, including intellectual property or privacy rights, or violates applicable law (a “Claim Against Us”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, or a final judgment, provided that We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
10.3. Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.
11. LIMITATION OF LIABILITY
11.1 Limitation of Liability. OUR LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
11.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL WE HAVE ANY LIABILITY TO THE YOU FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
12. TERM AND TERMINATION
12.1 Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
12.2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term, unless We have given You written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
12.3. Termination. Subject to any specific commitments stated in the IoTM service Order Form, Each party may terminate the Service or this agreement for no cause at any time upon 30 days written notice. We may terminate this Agreement for cause (i) upon 10 days written notice to You of a material breach if such breach remains uncured at the expiration of such period, or (ii) if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, and such procedure is not cancelled within 30 days.
12.4. Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 12.3 (Termination), Subject to any specific commitments stated in the IoTM Services Order Form, We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 12.3, You will pay any unpaid fees according to the Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.5. Your Data Deletion. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, we will have no obligation to maintain or provide Your Data, and will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control as provided in the Documentation, unless legally prohibited.
12.6. Surviving Provisions. The Sections titled “Fees and Payment for Purchase Services,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Notices, Governing Law and Jurisdiction,” and “General Provisions” will survive any termination or expiration of this Agreement.
13. NOTICES, GOVERNING LAW AND JURISDICTION
13.1. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery with delivery confirmation,(ii) the third business day after mailing, (iii) the next business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
13.2. Agreement to Governing Law and Jurisdiction. This Agreement and its performance shall be governed by the laws of the State of Israel. The Parties hereto submit the exclusive jurisdiction to the courts of Tel-Aviv-Jaffa. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
13.3. No Agency. For the avoidance of doubt, We are entering into this Agreement as principal and not as agent for any other company. Subject to any permitted Assignment under Section 14.4, the obligations owed by Us under this Agreement shall be owed to You solely by Us and the obligations owed by You under this Agreement shall be owed solely to Us.
14. GENERAL PROVISIONS
14.1 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
14.2. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.3. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.4. Third-Party Beneficiaries. Our Non-IoTM Solutions 3rd Party Technologies licensors shall have the benefit of Our rights and protections hereunder with respect to the applicable Non-IoTM Solutions 3rd Party Technologies. There are no other third-party beneficiaries under this Agreement.
14.5. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
14.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.