Licensor represents that it owns or has the right to use all proprietary rights in and to the Application, necessary to fulfill its obligations under the terms of this Agreement. Licensor further represents that the Application will contain no program or code which has been intentionally designed or created to: (a) allow unauthorized access to, or use of, the Application by any agent or employee of Licensor; or (b) cause the Application or other program or programs to malfunction. The above are the sole representations made by Licensor with respect to the Application. Licensor makes no further representations with respect to the Application, express or implied and such representations are expressly excluded to the fullest extent by applicable law.
Subject to the terms in this agreement and throughout the duration of this Agreement, Licensor grants you, and you accept from Licensor, a limited, non-exclusive, non-transferable, license, only during the Term (as defined below) to use the Application on your website located at the URL you specified during the registration process, by inserting the exact Code provided by the Licensor solely for your own business use in strict compliance with this Agreement (the “License”).
The functionality of the Application and/or the underlying technology, methods and algorithms may be updated and or modified from time to time at Licensor’s sole discretion. This Agreement will apply, with any changes required by such updates or modifications, to any future revisions and/or versions of the Application.
Your use is restricted to the use specifically authorized under this Agreement. Without derogating from the generality of the forgoing you may not: sublicense, sell, lease, rent or otherwise transfer the License, to any third party whether or not for consideration without Licensor’s prior consent; or make any change to the Code.
You further agree to provide the Application with full access to the content of your website and acknowledge that without such access the Application will not perform as intended.
You will not cause, nor permit either through your direct efforts or through any third party, the modification of the Code. You will not attempt to create or permit others to attempt to create, by utilization of the Code any part of the Application or copy the Code for any purpose other than for the utilizing the Application as instructed by the Licensor.
You specifically agree that each of the terms and conditions of this section are material and that failure to comply with these terms and conditions will constitute sufficient cause for Licensor to immediately terminate the License granted and cease providing you with the service and block your access to the Application. The presence of this section will not be relevant in determining the materiality of any other provision or breach by either party.
Fees and Taxes
The License is granted upon payment in full of the fees published on the Licensor’s website (the “Fees”). If any due Fees are not timely paid, the Licensor may immediately terminate the License granted, cease providing you with the service, and block your access to the Application.
The License is granted upon payment in full of the fees agreed in a written form with the Licensor (the “Fees”). If any due Fees are not timely paid, the Licensor may immediately terminate the License granted, cease providing you with the service, and block your access to the Application. Should there be an update to the Fees at the end of the agreed contract term, Licensor may notify you at least 14 days prior to the change, and unless you choose to terminate the service, the Fees charged would update accordingly.
The Application is proprietary to Licensor and title to the Application remains with Licensor . All applicable rights of any kind subsisting in or related to the Application, including but not limited to patents, copyrights, trademarks, trade secrets, moral rights, designs, logos, graphic layouts, and copyrights, both registered and unregistered, owned and/or otherwise used by Licensor, and all goodwill related to any other intellectual property right in and to the Application, or any modifications or derivative works, belong to and will remain with Licensor. You acknowledge that the License granted under this Agreement provides you only with a right of limited use under the terms and conditions of this Agreement.
Disclaimer of Warranty
LICENSOR MAKES, AND YOU RECEIVE, NO WARRANTY, EXPRESS OR IMPLIED, AND ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
Licensor does not warrant that the Application will meet your requirements or that it will operate in combination with other software or non-supported platforms/operating systems which may be selected for use by you, or that the operation of the Application will be uninterrupted or error-free, and you acknowledge that the Application may suffer from technical downtimes due to connectivity issues, hardware malfunctions or system upgrade procedures. Licensor does not warrant that the Application will achieve any specific results, recommend the users with any specific or accurate content, increase the number of page views on your website or increase time spent on your website or user conversion ratios. The Licensor does not warrant that the content of your website will be reindexed within certain time periods, and you hereby acknowledge that accordingly the Application may not direct users of your website to recently added content.
Limitation of Liability
You agree that the liability of Licensor, its officers and employees for damages arising from performance or nonperformance of the Application (whether arising out of contract, negligence, strict liability in tort, warranty or any other legal or equitable theory) will in no event exceed the Fees paid by you to the Licensor.
Licensor will not be liable for any damages suffered or incurred by you or any third party arising out of any faults, interruptions or delays in the Application and any inaccuracies, errors or omissions in the Application, Application server downtime or inaccuracies in content recommendations. Each party hereby acknowledges that it has not relied upon any warranty made by the other except as specifically set forth in this agreement.
LICENSOR WILL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO COST OF COVER, LOSS OF REVENUE OR PROFIT OR COMMERCIAL LOSS OR LOSS OF DATA (INCLUDING, WITHOUT LIMITATION THE MONETIZATION OF WEBSITE TRAFFIC AND LOSS OF LEADS AND PROSPECTS), OR DAMAGE TO OTHER SOFTWARE OR OTHER COMPUTERS OR COMPUTER MALFUNCTION OR DOWNTIME, IRRESPECTIVE OF THE THEORY UPON WHICH ANY CLAIM MAY BE BASED, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Licensor agrees to indemnify, defend and hold you harmless from and against any and all claims made by any third party, including costs in connection with the defense thereof, resulting from any alleged patent infringement, copyright infringement or misappropriation of trade secrets by your use of the Application in accordance with this Agreement; provided, however, that you: give Licensor written notice of any action or allegation of infringement within seven (7) days following receipt of notice by you; provide any assistance reasonably requested by Licensor at Licensor’s expense; and Licensor retains the right to control the defense of all such claims, lawsuits and other proceedings.
In the event that a final injunction is issued against the use of the Application by you for reason of infringement of a patent or copyright or misappropriation of a trade secret, or if, in Licensor’s opinion, the Application is likely to become the subject of a claim of infringement, Licensor may, at its sole discretion and expense and as the sole and exclusive remedy against it, either: procure for you the right to continue using the Application; replace or modify the Application so that it becomes non-infringing; or terminate this Agreement and provide a pro-rata refund of the Fees for any unused portion of the Term, if applicable.
Notwithstanding the above provisions, the indemnity set forth in this agreement will not apply to, and Licensor assumes no liability for, any claims of infringement made by any third party to the extent that such claim relates to: use of other than an unaltered release of the Code; the combination, operation or use of the Application with non-Licensor programs, data, methods or technology if such infringement would have been avoided without such combination, operation or use; the use of the Application in a manner other than the manner it was intended to be used according to the Licensor documentation; or modifications of the Code for you by a third party not contracted by Licensor.
You will indemnify and hold Licensor, its directors, officers, employees and assignees harmless from and against any and all reasonable liabilities, damages, awards, settlements, losses, claims and expenses, including reasonable legal fees and costs of investigation, due to any claim by a third party relating to or arising out your use of the Application not in accordance with the terms of this Agreement.
Term and Termination
This Agreement and the License granted hereunder will be effective as of the date on which Licensor has approved and accepted your use of the Application (the “Effective Date”) and will remain in effect until terminated as provided in this Agreement (the “Term”).
Licensor will have the right to terminate this Agreement and the License granted in this agreement upon the occurrence of any of the following events: in the event the you fail to comply with any of the terms and conditions of this Agreement and such default has not been cured within thirty (30) days after receiving written notice; in the event you: terminate or suspend your business; become insolvent or generally fail to pay, or admit in writing your inability to pay, your debts as they become due; become subject to any bankruptcy or insolvency proceeding; become insolvent or subject to direct control by a trustee, receiver or similar authority; or have wound up or liquidated, voluntarily or otherwise.
Licensor will have the right to terminate this Agreement as part of ceasing providing the Application and/or related services to all of its users, subject to publishing a notice on Licensor’s website at least 30-days in advance.
In addition, Licensor may terminate this Agreement pursuant to the provisions of this agreement which specifically provide Licensor with that right. In such event, Licensor will have the right to prevent your access to the Application.
You will have the right to terminate this Agreement in the event Licensor fails to comply with any of the terms and conditions of this Agreement and such default has not been cured within thirty (30) days after written notice.
Licensee has the right to terminate this Agreement by delivering a 30 days’ notice. If during the 30 days, another monthly payment is due, it would still be payable in full. Notwithstanding the above, if Licensee’s Agreement term, as defined in its ordering document, commits Licensee to a longer Agreement term, then Licensee would be bound by the Agreement term agreed therein. Should the licensee not terminate the Agreement at least 30 days prior to the end of the initial term, it would automatically renew for the same duration as originally ordered.
Without limiting any of the above provisions, or any other remedy Licensor is entitled to according to this Agreement or any applicable law, in the event termination is a result of the your failure to comply with any of your obligations under this Agreement, you will continue to be obligated for any payments due. Termination of the License will be in addition to and not in lieu of any equitable remedies available to Licensor.
Conversion Uplift Estimations
Estimations are based on probability – not certainty. Any estimation generated by BrightInfo is not in any way a commitment on behalf of BrightInfo, neither legally, nor otherwise.
This Agreement does not constitute, and will not be construed as constituting, a partnership or joint venture between the parties to this agreement, and the parties to this agreement act in the capacity of independent contractors. Neither party will have any right to obligate or bind the other party in any manner whatsoever.
This Agreement constitute the full and entire understanding and agreement between the parties with regard to the subject matters hereof.
This Agreement supersedes all prior course of dealings, proposals and negotiations between you and Licensor, including any information and offers published on the Licensor’s website, and no representations, communications, negotiations or statements not expressed in this agreement will be binding upon Licensor.
Any term of this Agreement may be amended, and the observance of any term of this Agreement may be waived (either prospectively or retroactively and either generally or in a particular instance) only with the written consent of the parties to this Agreement.
No delay or omission to exercise any right, power, or remedy accruing to any party upon any breach or default under this Agreement will be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, consent, or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of any provisions of this Agreement, must be in writing and will be effective only to the extent specifically set forth in such writing.
If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable under applicable law, then such provision will be excluded from this Agreement and the remainder of this Agreement will be interpreted as if such provision were so excluded and will be enforceable in accordance with its terms; provided, however, that in such event this Agreement will be interpreted so as to give effect, to the greatest extent permitted by and consistent with applicable law, to the meaning and intention of the excluded provision as determined by such court of competent jurisdiction.
The terms and provisions of this Agreement will be binding upon and inure to the benefit of the parties to this Agreement and to their respective heirs, successors, assigns and legal representatives, except that you will not assign, sub-license or otherwise transfer the Code or any user name and password or any rights, duties or obligations under this Agreement to any person or entity, in whole or in part.
Except as otherwise provided in this agreement, all notices, requests, waivers, and other communications made pursuant to this Agreement will be in writing and will be given by e-mail. All notices so mailed will be deemed received upon the date of receipt thereof and if receipt is not on a business day – on the first business day thereafter.
This Agreement will be governed by the substantive laws of the State of Israel without regard to principles of conflicts of law. The courts of Tel Aviv, Israel, will have the sole and exclusive jurisdiction over any dispute between the parties to this Agreement, and any claim by you against Licensor’s employees, ex-employees, officers, agents, or affiliates. Each of the parties hereby submits irrevocably to the jurisdiction of such venue.
The headings, titles and other captions in this Agreement are for convenience of reference only and will not be used in interpreting, construing or enforcing any of the provisions hereof.
Any words in this agreement used in the singular will denote the plural as the context so requires and, when used in this agreement in the plural, will denote the singular as the context so requires. Pronouns used in this agreement, whether masculine, feminine, or neuter, will be interpreted as the context so requires.
The language of all parts of this Agreement will in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any party. No presumptions or rules of interpretation based upon the identity of the party preparing or drafting the Agreement, or any part thereof, will be applicable or invoked.