1.1 The Parties hereby agreed the details, terms and conditions of the License for the Software (including Software Release Upgrades, Software Updates, Maintanence Releases, Versions, New Software, Modifications) to be granted by Cellact to the Company as herein defined.
1.2 These License Terms form a part of the Agreement and Purchase Order between Cellact and the Company for the Software and any additions and upgrades thereof.
1.3 The provisions of these License Terms may be supplemented or amended only by a written agreement between Cellact and the Company (including by the terms of the Agreement). Each such written agreement modifies these License Terms only to the extent express written provisions depart from the terms and conditions specified herein. All other terms and conditions shall apply as set forth herein.
2. Terms & definitions used herein shall have the following meaning:
2.1 Modifications means bug fixes, maintenance releases, new versions, major releases or other updates of the Software that Cellact makes commercially available to any of Cellact’s customers.
2.2 Software Release Upgrade means the issue of Software and any superseding issue which adds new features or substantially enhances the existing Software, which shall be implemented into the Software by Cellact. Software Release Upgrade may also correct defects.
2.3 Software Updates mean corrections of the Software based on Cellact’s and users’ fault reports and which Cellact issues as Software Updates. Software Updates do not represent an upgrade to enhancement of existing Software specifications. Software Updates will be automatically implemented into the Software by Cellact. Cellact will test, prior to delivery, all Software Updates according to the appropriate system test plan.
2.4 User shall mean an employee or representative of the Company who is allowed to have access to and to exercise the functions of the Software.
2.5 Other terms & definitions used herein shall have the meaning ascribed to them in the Agreement and Annexes thereto.
3. License and Delivering of the Software
3.1 Cellact grants to the Company a perpetual, non-exclusive, non- transferable, revocable license to use the Software in accordance with the terms of the Agreement, Documentation and this Annex.
3.2 Using of the Software by the Company in order to provide Users with access to the Software shall mean access or otherwise as explicitly agreed herein and in the Agreement and such other activity necessary to use the Software according to its intended purpose.
3.3 The Licenses do not extend any rights to the Company in respect of the source code of the Software. The Company hereby reserves any and all rights not granted to the Company under the Agreement.
3.4 Cellact represents, warrants and undertakes that the Software is:
a. free from any Virus at the time when it is delivered to the Customer
b. Documented in English
c. complete, accurate, suitable and sufficient to enable licensed users to make use of the facilities and functions of the Software;
3.5 the Company may make a reasonable number of back-up copies of each user-loadable program and any related update or revision in order to replace an authorized existing copy that does not perform in conformance with the Specification and/or Functional Specification of the Software.
3.6 Title to the Software (except for the 3rd parities SW) and all patents, copyrights, design rights, trade secrets and other proprietary rights in or related to the Software are and will remain the exclusive property of Cellact, whether or not specifically recognized or perfected under the laws of the country where the Software is used and/or located.
3.7 The Customer will not take any action that jeopardizes such proprietary rights or acquire any right in the Software(s), except the limited use rights specified in this Annex.
3.8 The Customer acknowledges and agrees that this Annex and the Agreement do not transfer to it any title in the Software or any Intellectual Property Rights associated therewith.
3.9 License Fee include all payments for the right to use Software Updates, Maintanence Releases, Versions, Modifications, New Software, any additional new features and/or functionalities issued by Cellact and/or its Affiliates during term of Agreement.
3.10 Cellact represents and warrants that it is a beneficial owner of the License Fees to be paid by the Customer for the License under the Agreement and this Annex.
3.11 The costs of all Software Release Upgrades, Software Updates, Maintanence Releases, Versions, New Software, Modifications shall be covered by the Licenses Fees for the term of the License.
3.12 The Software License fee shall be paid by the Company to ___________ within the period of time agreed by them
4. End-Users and Other Third Parties.
It is the Company responsibility to obtain consent from its end-users to gather any information necessary to facilitate its services, and the Company agree to fully abide by all applicable laws when gathering such information, including, but not limited to, laws pertaining to financial and personally identifiable data. The Company understand that Cellact does not have a relationship, legal or otherwise, with its end-users or other third-parties related to the software, and Cellact is not responsible for the Company relationship with these end-users or other third parties. Cellact do not provide customer support to the Company end-users, and Cellact will not be involved in any dispute the Company have with its end-users or other third parties. The Compay also agree that its will require its end-users to accept and comply with all applicable laws and regulations, and the Company will not knowingly enable its end-users to violate such laws and regulations.
5. Compliance with The Law
the Company and any End Usre of the software agree that they are subject to, and will comply with, all applicable laws, regulations, and third party rights, including, but not limited to, those relating to the import or export of data or software, privacy, and local laws. The company and any End Usre of the software further agree that they will not use Cellact Services to encourage or promote illegal activity or violation of third party rights and that they are bound by, and will not violate, any other terms of service with Hover or its affiliates.
6. Indemnification, No Warranty, and Exclusion of Liability
6.1 The Company shall defend, indemnify, and hold Cellact harmless from any third party claim, suit, demand, loss, liability, damage, action, or proceeding and any related liabilities, damages, settlements, penalties, fines, costs or expenses (including all attorney’s fees and litigation costs) that result from: (i) The Company or its End Users violation of any of the Terms; (ii) The Company or its End Users use or misuse of Cellact Services / Software; (iii) The Company or its End Users misconduct (whether willful, negligent, reckless, or otherwise); (iv) The Company or its End Users actual or alleged violation of any third party rights, applicable laws, regulations or rules, including but not limited to those relating to intellectual property; and/or (v) any disputes or issues The Company have with any end users, to include mobile money providers, including but not limited to PII, products, or services.
6.2 Disclaimer of Warranties. ALL LICENSED SOFTWARE, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS AND SERVICES PROVIDED BY CELLACT ARE PROVIDED “AS IS”. CELLACT HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
6.3 Exclusion of Liability. IN NO EVENT CELLACT WE BE LIABLE TO THE COMPANY OR ITS END USERS OR ANY OTHER THIRD PARTY UNDER OR IN CONNECTION WITH THE TERMS OR SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY (i) INCREASTED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS, (ii) LOSS OF GOODWILL OR REPUTATION, (iii) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY LICENSED SOFTWARE, (iv) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (v) COST OF REPLACEMNT GOODS OR SERVICES, OR (vi) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER CELLACT WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORSEEABLE, AND NOTHWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. THIS LIMITATION OF LIABILITY SECTION SHALL APPLY TO FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU FURTHER AGREE TO LIMIT ANY ADDITIONAL LIABILITY NOT DISCLAIMED IN THESE TERMS.
7.1 Governing Law & Submission to Jurisdiction. The Terms are governed by and construed in accordance with the internal laws of the State of Israel without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of Israel. Any legal suit, action or proceeding arising out of the Terms will be instituted in the courts of Israel, and each Party irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding.
7.2 Severability. Should any part of the Terms be deemed unenforceable by any competent body for any reason, that part shall be severed from the Terms, and the balance of the Terms shall remain enforceable and in effect.
7.3 Force Majeure. Cellact is not responsible for any loses or damages arising from suspension of the Services due to extraordinary events or circumstances beyond its control.
7.3.1 No Waiver. Any failure of Cellact to enforce any part of the Terms will not constitute a waiver of such part of the Terms.
7.4 Assignment. The Terms are not assignable, transferable or sub-licensable by the Company except with Cellact’s prior written consent.
7.5 No Agency. Nothing in the Terms shall be construed to establish a partnership, joint venture, or other agency relationship between Cellact and the Company or its end users, to include mobile money providers.