PLATFORM TERMS OF SERVICE

Last Updated: October 15, 2018

 

  1. DEFINITIONS
    1. 1.1."Authorized Agent(s)" means anyone authorized by you or invited by you to make use of the Platform.
    2. 1.2.Customer” is the entity that you represent in agreeing to the Platform Terms, as such entity is identified in any applicable order form or insertion order.
    3. 1.3.Data Protection Laws” means, as applicable, any and/or all applicable domestic and foreign laws, rules, directives and regulations, on any local, provincial, state or deferral or national level, pertaining to data privacy, data security and/or the protection of Personal Data, including the Data Protection Directive 95/46/EC and the Privacy and Electronic Communications Directive 2002/58/EC (and respective local implementing laws) concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), including any amendments or replacements to them, including the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.

 

  1. ACCEPTANCE
    1. 2.1.These Platform Terms of Service (the “Platform Terms”) describe your rights and responsibilities when using our proprietary cloud-based Software-as-a-Service digital marketing tools and platform (the “Platform”).
    2. 2.2.If you are a Customer (defined above), or if you are being invited to the Platform by a Customer as an Authorized Agent (defined above), these Platform Terms govern your access and use of our Platform.
    3. 2.3.These Platform Terms (or, if applicable, your written agreement with us) and any order form(s) together form a binding “Platform Terms” between Customer and us. “We”, “our” and “us” refers to Gefen Technologies Ltd.
    4. 2.4.If you sign an Order Form, purchase subscription(s), invite Authorized Agents to the Platform, or use or allow use of the Platform, you acknowledge your understanding and agree to abide by the Platform Terms.

 

  1. DATA PROTECTION
    1. 3.1.Please review our Privacy Policy for more information about our privacy practices that apply to personal data we collect, use and share in relation to the performance of our obligations herein and in connection with your use of the Platform.
    2. 3.2. To the extent that Customer Data contains any personal data (as this term is defined under applicable Data Protection Laws), then the parties shall be subject to the Data Protection Exhibit, available here: [provide link].

 

  1. CUSTOMERS AND AUTHORIZED AGENTS REPRESENTATIONS
    1. 4.1.Customer Data. Customer and/or Authorized Agent may submit content or information to the Platform, such as messages or files (“Customer Data”), and Customer may exclusively provide us with instructions on what to do with it. Customer will (a) inform Authorized Agents of all Customer policies and practices that are relevant to their use of the Platform and of any settings that may impact the processing of Customer Data; and (b) ensure the collection, transfer and processing of Customer Data under the Platform Terms is lawful. Customer is solely responsible for the collection and submission of the Customer Data.
    2. 4.2.Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well the accounts of your Authorized Agents. We will not be responsible for any damages, losses or liability to Customer, Authorized Agents, or anyone else, if such information is not kept confidential by Customer or its Authorized Agents, or if such information is correctly provided by an unauthorized third party logging into and accessing the Platform.
    3. 4.3.If we believe that there is a violation of the Platform Terms that can simply be remedied by Customer’s removal of certain Customer Data, we will, in most cases, ask Customer to take direct action rather than intervene. However, we may directly step in and take what we determine to be appropriate action, if Customer does not take appropriate action, or if we believe there is a credible risk of harm to us, the Platform, Authorized Agents, or any third parties.
    4. 4.4.Use of the Platform. Customer must comply with the Platform Terms and ensure that its Authorized Agents comply with the Platform Terms. We may review conduct for compliance purposes, but we have no obligation to do so. We aren't responsible for the content of any Customer Data or the way Customer or its Authorized Agents choose to use the Platform to store or process any Customer Data. The Platform is not intended for and should not be used by anyone under the age of 18. Customer must ensure that all Authorized Agents are over 18 years old. Customer is solely responsible for providing high speed internet service for itself and its Authorized Agents to access and use the Platform.

 

  1. USE RESTRICTIONS
    1. 5.1.The Platform may not be used in any way which is illegal, harmful or that may be reasonably considered by us as infringing the rights of any third parties (including privacy rights).
    2. 5.2.You agree not to exploit the Platform in any unauthorized way whatsoever, including but not limited to, trespass or burdening network capacity. You further agree not to use our Platform in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and you acknowledge and agree that we are not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using the Platform. Scraping of any information contained in the Platform, including any third-party information accessible via the Platform, is strictly prohibited.
    3. 5.3.You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Platform, any updates, or any part thereof.
    4. 5.4.You agree that your use of the Platform shall comply with our Acceptable Use Policy.

 

  1. LICENSE
    1. 6.1.We grant to Customer a non-sub-licensable, non-transferable, non-exclusive, limited license for Customer and its Authorized Agents to use the Platform in accordance with the Platform Terms and any applicable insertion order or order form. All rights not expressly granted by this license are hereby retained.

 

  1. OUR RESPONSIBILITIES
    1. 7.1.We will (a) make the Platform available to Customer and its Authorized Agents as described in the Platform Terms; and (b) not use or process Customer Data for any purpose without Customer’s prior written instructions; provided, however, that “prior written instructions” will be deemed to include use of the Platform by Authorized Agent and any processing related to such use or otherwise necessary for the performance of the Platform Terms.
    2. 7.2.For any breach of a warranty in this section, Customer’s exclusive remedies are those described in the sections titled “Termination for Cause” and “Effect of Termination”.
    3. 7.3.Protecting Customer Data. The protection of Customer Data is a top priority for us so we will maintain administrative, physical, and technical safeguards to protect such sta. Those safeguards will include measures for preventing unauthorized access, use, modification, deletion and disclosure of Customer Data by our personnel. Before sharing Customer Data with any of our third party service providers, we will contractually ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of Customer Data and preventing unauthorized access. Customer (not us) bears sole responsibility for adequate security, protection and backup of Customer Data when in Customer’s or its representatives’ or agents’ possession or control. We are not responsible for the Customer’s and/or Authorized Agents’ use of the Customer Data.

 

  1. OWNERSHIP AND PROPRIETARY RIGHTS
    1. 8.1.As between us on the one hand, and Customer and any Authorized Agents on the other hand, Customer or the Authorized Agents will own all Customer Data.
    2. 8.2.Subject to the terms and conditions of the Platform Terms, Customer and/or the Authorized Agents grants us a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Customer Data, only as reasonably necessary (a) to provide, maintain and update the Platform; (b) to prevent or address service, security, support or technical issues; (c) as required or permitted by law; and (d) as expressly permitted in writing by Customer and/or the Authorized Agent. Customer and/or the Authorized Agent represents and warrants that it has secured all rights in and to Customer Data as may be necessary to grant this license.
    3. 8.3.We own and will continue to own our Platform, including any content made available therein (excluding any Customer Data), including all related intellectual property rights, and including any modification, enhancement, adaptation, translation or other change of or addition to the Platform. You agree not to challenge our rights in or otherwise attempt to assert any rights in the Platform.

 

  1. DISCLAIMER OF WARRANTIES
    1. 9.1.Customer and the Authorized Agent represents and warrants that it has validly entered into the Platform Terms and has the legal power to do so. Customer further represents and warrants that it is responsible for the conduct of its Authorized Agents and their compliance with the terms of this Platform Terms and the Agent Terms.
    2. 9.2.EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE PLATFORM AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.

 

  1. LIMITATION OF LIABILITY
    1. 10.1.OTHER THAN IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE PLATFORM TERMS (WHETHER IN CONTACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT TERMS” SECTION ABOVE AND/OR UNDER ANY ORDER FORMS OR OTHER DOCUMENTS REFERENCED HEREIN.
    2. 10.2.IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN PLATFORM TERMS, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

 

  1. INDEMNIFICATION
    1. 11.1.Our Indemnification. We will defend Customer from and against any and all third party claims, actions, suits, proceedings, and demands alleging that the underlying technology of the Platform infringes or misappropriates a third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Customer in connection with or as a result of, and for amounts paid by Customer under a settlement we approve of in connection with, a Claim Against Customer; provided, however, that we will have no liability if a Claim Against Customer arises from any modification, combination or development of the Platform that is not performed by us, including in the use of any application programming interface (“API”). Customer must provide us with prompt written notice of any Claim Against Customer and allow us the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting our defense and settlement of such matter. This section states our sole liability with respect to, and Customer’s exclusive remedy against us, for any Claim Against Customer.

 

    1. 11.2.Customer's Indemnification of Us. Customer will defend us and our affiliates, subsidiaries and agents (collectively, "Our Indemnified Parties"), from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to Customer’s or any of its Authorized Agents' violation of the Platform Terms (a “Claim Against Us”), and will indemnify the Gefen Indemnified Parties for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Our Indemnified Parties in connection with or as a result of, and for amounts paid by Our Indemnified Parties under a settlement Customer approves of in connection with, a Claim Against Us. We must provide Customer with prompt written notice of any Claim Against Us and allow Customer the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting Customer’s defense and settlement of such matter. This section states your sole liability with respect to, and the Our Indemnified Parties' exclusive remedy against Customer for, any Claim Against Us.

 

    1. 11.3.Limitations on Indemnifications. Notwithstanding anything contained in the two preceding sections, (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (b) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if (i) the third party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified parties, (iii) the settlement does not include a full release of liability for the indemnified parties, or (iv) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.

 

  1. CONFIDENTIALITY
    1. 12.1.Definition. "Confidential Information" shall mean any non-public, proprietary, confidential and/or trade secret information of a Party hereof, whether furnished before or after the Effective Date (as set forth in the Insertion Order), and regardless of the manner in which it is furnished, and which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive, including, without limitation, business procedures, technology and any related documentation, client list, developments, business partners or other information disclosed by the Disclosing Party) to the other party (the "Receiving Party") either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment. Confidential Information shall not, however, include any information which: (i) was known to the Receiving Party or in its possession at the time of disclosure without any confidentiality obligation; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (iii) is independently developed by the Receiving Party without reliance on or use of the Confidential Information or any part thereof and the Receiving Party can show written proof of such independent development; (iv) required to be disclosed by applicable law, regulatory authority or a valid court order, provided that the Receiving Party shall provide the Disclosing Party with reasonable prior written notice of the required disclosure in order for the Disclosing Party to obtain a Protective Order and the disclosure shall be limited to the extent expressly required; (v) is approved for release by prior written authorization of the Disclosing Party; or (vi) the Receiving Party can demonstrate was disclosed by the Disclosing Party to a third party without any obligations of confidentiality. Confidential Information of Customer includes Customer Data.
    2. 12.2.Protection. Each party (“Disclosing Party”) may disclose Confidential Information to the other party (“Receiving Party”) in connection with the Platform Terms. The Receiving Party will (a) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contactors who need to know such information in connection with the Platform Terms; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Platform Terms. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in the Platform Terms.
    3. 12.3.The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the access or disclosure.

 

  1. TERM AND TERMINATION
    1. 13.1.Term. The Platform Terms remains effective until all subscriptions and/or licenses ordered under any applicable insertion order or order form entered into with the Customer have expired or been terminated or the Platform Terms itself terminates. Termination of the Platform Terms will terminate all subscriptions and all Order Forms.
    2. 13.2.Termination for Cause. We may terminate the Platform Terms on notice to the Customer and/or the Authorized Agent materially breaches the Platform Terms and such breach is not cured within thirty (30) days after we provided notice of the breach. Customer is responsible for its Authorized Agents, including for any breaches of this Platform Terms caused by its Authorized Agents. We may terminate the Platform Terms immediately on notice to Customer if we reasonably believe that the Platform is being used by Customer or its Authorized Agents in violation of applicable law.
    3. 13.3.Effect of Termination. Upon any termination for cause by us, Customer will pay any unpaid fees covering the remainder of the term of those subscriptions after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination.
    4. 13.4.Survival. The sections titled “Data Protection,” “Use Restrictions”, “Ownership and Proprietary Rights”, “Disclaimer of Warranties,” “Limitation of Liability,” “Indemnification,” “Confidentiality” and “Term and Termination,” as well as all of the provisions under the general heading “General Provisions,” will survive any termination or expiration of the Platform Terms.

 

  1. GENERAL PROVISIONS
    1. 14.1.Publicity. Customer grants us the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers, subject to Customer’s standard trademark usage guidelines as provided to us from time-to-time. Customer may send us an email to [enter email] stating that it does not wish to be used as a reference.
    2. 14.2.Feedback. If Customer sends us any feedback or suggestions regarding the Platform, there is a chance we will use it, so Customer grants us (for itself and all of its Authorized Agents and other Customer personnel) an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer, any Authorized Agent or other Customer personnel.
    3. 14.3.Force Majeure. Neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.

 

    1. 14.4.Relationship of the Parties; No Third Party Beneficiaries. The parties are independent contractors. The Platform Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third party beneficiaries to the Platform Terms.
    2. 14.5.Notices. Except as otherwise set forth herein, all notices under the Platform Terms will be by email, although we may instead choose to provide notice to Customer through the Platform. Notices to us will be sent to [enter email]. Notices will be deemed to have been duly given (a) the day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Platform.
    3. 14.6.Modifications. As our business evolves, we may change these Platform Terms and the other components of the Platform Terms (except any Order Forms). If we make a material change to the Platform Terms, we will provide Customer with reasonable notice prior to the change taking effect, either by emailing the email address associated with Customer’s account or by messaging Customer through the Platform. Customer can review the most current version of the Platform Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Platform Terms. The materially revised Platform Terms will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If Customer (or any Authorized Agent) accesses or uses the Platform after the effective date, that use will constitute Customer’s acceptance of any revised terms and conditions.
    4. 14.7.Waiver. No failure or delay by either party in exercising any right under the Platform Terms will constitute a waiver of that right. No waiver under the Platform Terms will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
    5. 14.8.Severability. The Platform Terms will be enforced to the fullest extent permitted under applicable law. If any provision of the Platform Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Platform Terms will remain in effect.
    6. 14.9.Assignment. Neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the Platform Terms in its entirety (including all Order Forms), without consent of the other party, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. A party’s sole remedy for any purported assignment by the other party in breach of this section will be, at the non-assigning party’s election, termination of the Platform Terms upon written notice to the assigning party. Subject to the foregoing, the Platform Terms will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
    7. 14.10.Choice of Law and Jurisdiction. By using the Platform, you consent that to the exclusive application of the laws of the Israel with respect to any dispute arising from or related to your use of the Platform, and the exclusive jurisdiction of the courts located in the city of Tel Aviv Yafo, Israel. You submit to the jurisdiction and venue of such courts and waive any objection based on inconvenient forum.
    8. 14.11.Entire Agreement. The Platform Terms, including any licensing agreements and all referenced pages and order forms, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, the Platform Terms supersedes the terms of any online agreement electronically accepted by Customer or any Authorized Agents. However, to the extent of any conflict or inconsistency between the provisions in these Platform Terms and the terms of any Order Form, the terms of such Order Form shall govern.