YOUR USE OF AND ACCESS TO IONIX’S PLATFORM (AND ANY ASSOCIATED SOFTWARE AND WEBSITES) AND PRODUCTS AND SERVICES DESCRIBED ON YOUR ORDER FORM(S) OR THROUGH A CLICK-THROUGH AGREEMENT (COLLECTIVELY, THE “SERVICES”) PROVIDED BY IONIX.IO LTD. AND ITS AFFILIATES, INCLUDING IONIX INC. (COLLECTIVELY, THE “COMPANY”) IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS AND CONDITIONS, INCLUDING USE IN ACCORDANCE WITH THE CURRENT VERSION OF ANY SUPPORTING TECHNICAL DOCUMENTATION PROVIDED TO YOU BY THE COMPANY OR AVAILABLE ON THE COMPANY’S WEBSITES (“DOCUMENTATION”). PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING.
BY PURCHASING, USING, OR OTHERWISE ACCESSING ANY OF THE SERVICES YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS AND ALL ORDER FORMS AND POLICIES INCORPORATED HEREIN BY REFERENCE (THE “AGREEMENT”). THE SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS.
If you are an entity, organization, or company, the individual accepting this Agreement on your behalf represents and warrants that they have authority to bind you to this Agreement and you agree to be bound by this Agreement.
Company will provide the Services, and you may access and use the Services, in accordance with this Agreement. If you order the Services through an online registration page, purchase order, order form (whether directly from the Company or through an authorized reseller or distributor), or similar document bearing any other title (each an “Order Form”), the Order Form may contain additional terms and conditions and information regarding the Services you are ordering. For avoidance of doubt, these Terms and Conditions shall apply to and bind, mutandis mutatis, all customers receiving the Services pursuant to an agreement between such customer and an authorized reseller or distributor acting on behalf of the Company.
1. The Services
1.1 Subject to your compliance with your obligations under this Agreement, Company hereby grants you with a nonexclusive, non-transferable, non-sublicensable, revocable right during the subscription term of this Agreement solely for your internal business purposes and pursuant to the Documentation, including any restrictions designated on an applicable Order Form.
1.2 During the subscription term of this Agreement, the Company shall provide you with any technical support and maintenance services if specified on the Order Form (“Support Services“) according to the Company’s SLA (www.ionix.io/sla) The Support Services (in whole or in part) may be performed by Company certified third party service providers, and Company shall remain primarily responsible for such service providers’ performance of the Support Services. If you have purchased the Services through an authorized reseller or distributor of the Company, you shall receive support services from the Company or the reseller/distributor in accordance with the agreement between that particular reseller/distributor and the Company.
1.3 In order to access certain features of the Services, you may be required to register for an account, which, among other things, will allow you to add or remove Permitted Users, control and manage certain features of the Services, and perform other administrative functions with respect to your account. “Permitted Users” means your employees, consultants, contractors, and/or agents who are authorized by you to access and use the Services under the rights granted to you pursuant to this Agreement. When you register for an account, you will be asked to provide the Company with certain information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to the Company is accurate, complete, and not misleading and that you will keep it accurate and up to date at all times. If you choose, or are provided with, a username, password, or any other piece of information as part of the Company’s security procedures, you must treat such information as confidential, and you must not disclose it to any third party. You also acknowledge and agree not to provide any third party with access to the Services or portions thereof using your username, password, or other security information. If you believe that your account is no longer secure, then you must immediately notify the Company at [email protected]. By creating an account, you also consent to receive certain electronic communications from the Company. These communications may include notices about your account and are part of your relationship with the Company. You agree that any notices, agreements, disclosures or other communications that the Company sends to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing.
1.4 The Company may, directly or indirectly, suspend, terminate, or otherwise deny your, any Permitted User’s, or any other person’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) the Company receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires the Company to do so; or (b) the Company believes, in its good faith and reasonable discretion, that: (i) you or any Permitted User has failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) you or any Permitted User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section 1.4 does not limit any of the Company’s other rights or remedies, whether at law, in equity, or under this Agreement.
2. Evaluation Period
2.1 If you register for a free evaluation of the Services, the Company will make the Services or any part of it available to you and your Permitted Users on an evaluation basis free of charge (“Evaluation Services”) until the earlier of (i) the end of the applicable evaluation period, (ii) the start date of any subscription to the Services that you purchase pursuant to an Order Form, or (iii) any termination of the evaluation by the Company for any reason, or for no reason at all, by sending you a termination notice with immediate effect. For avoidance of doubt, your use of the Evaluation Services will be governed by these Terms and Conditions.
2.2 THE EVALUATION SERVICES ARE PROVIDED “AS IS” FOR LIMITED EVALUATION AND TESTING PURPOSES ONLY, AND THE COMPANY DOES NOT WARRANT THAT THE EVALUATION SERVICES WILL OPERATE WITHOUT ERROR OR INTERRUPTION. COMPANY SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE, QUALITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE.
3. Term and Termination
3.1 This Agreement shall be effective beginning when you (a) accept this agreement, (b) register for an account, or (c) access or otherwise use the Services, in each such case whichever occurs first, and ending when terminated as described in this Section 3. The initial subscription term for the Services will be as set forth and agreed upon by the parties in an applicable Order Form.
3.2 If either party: (a) materially breaches this Agreement, or (b) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; in each case, the non-breaching Party may terminate this Agreement upon provision of written notice to the other Party, provided that the breaching Party has failed to cure such breach within thirty (30) days following its receipt of such notice.
3.3 At the end of the initial subscription term, all Company subscriptions purchased by you pursuant to an Order Form (including any additional subscriptions added to your account) will renew automatically for an additional subscription term, as stated in the order form, unless you or the Company notifies the other in writing, at least 30 days prior to the end of the then-current subscription term, that it chooses not to renew (the initial subscription term, along with any renewal subscription terms, are referred to as the “subscription term”).
3.4 Upon expiration or termination of the Agreement for any reason, (i) you shall immediately cease use of the Services and all rights granted under the Agreement shall terminate; (ii) you shall remit in full all payments due to Company under the applicable Order Form; and (iii) the following provisions shall survive the expiration or termination of this Agreement: 3.4, 4, 5, 6, 7, 8, 9 and 10; and (vi) all other performance obligations of both Parties under this Agreement shall cease.
4. Restrictions and Responsibilities
4.1 You assume full responsibility for your and your Permitted Users’ access to and use of the Services in accordance with this Agreement and with applicable laws.
4.2 You will not, and you will ensure that your Permitted Users will not: (i) resell, transfer, or grant others permission to use the Services or pledge, lease, rent, or share your rights under this Agreement (including without limitation to any of your affiliates); (ii) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services; (iii) modify, translate, adapt, update, reproduce, create derivative works of, duplicate, or copy all or any part of the Services; (iv) make any of the Services available to anyone other than your employees and consultants acting on your behalf or use any Services for the benefit of anyone other than you; (vi) use the Services in any way that damages, destroys, disrupts, disables, impairs, restricts, inhibits, or otherwise impedes or harms in any manner the Services, the information technology infrastructure used by or on behalf of the Company in performing the Services, or the Company’s provision of Services to any third party; (vii) access or attempt to access any of the Company’s systems, programs or data that are not made available for public use, or attempt to bypass any registration processes through the Services or any of the Services’ security and traffic management devices; (viii) attempt to decompile, disassemble, re-engineer or reverse engineer the Services or otherwise create or attempt to create or permit, allow, or assist others to extract source code of the Services; (ix) access or use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other right of the Company or any third party or that violates any applicable law, Company policies, or the operational or security mechanisms of the Services; (x) input, upload, transmit, or otherwise provide to or through the Services, any virus, worm, malware, or other malicious computer code; or (xi) permit any third party to do any of the above.
4.3 The Services may include or incorporate third-party products, materials, information, or intellectual property (“Third-Party Components”). Third-Party Components are owned by third parties and not by the Company and may be provided to you under terms and conditions that are in addition to and/or different from those contained herein. The Company will not be liable for any termination, breach of terms, or suspension of Services resulting from your or your Permitted Users’ use of any Third-Party Components. Although the Services are provided to you subject to this Agreement, nothing in this Agreement prevents, restricts, or is intended to prevent or restrict, you from obtaining Third-Party Components under the applicable third-party licenses or limiting your use of Third-Party Components under those third-party licenses.
4.4 You may not access or use the Services if you are a direct competitor of the Company, or for monitoring the Services’ availability, performance, functionality, or for any other benchmarking or competitive purposes.
5. Proprietary Rights; Privacy
5.1 For purposes of this Agreement, “Customer Data” means electronic data and information (including data sets, compilations, or aggregations of the foregoing) submitted by you or on your behalf to the Services. As between you and the Company, you shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to the Company. You hereby grant to the Company a non-exclusive, worldwide, limited term, royalty-free right to access, use, copy, process, store, transmit, distribute, perform, transform, and display the Customer Data and derivatives thereof in connection with providing the Services and to comply with applicable laws.
5.2 In addition, the Company may, during and after the subscription term, process aggregated and anonymous general platform usage data and extracts of Customer Data on an anonymized basis for the Company’s legitimate business purposes, including for testing, development, controls, operation and enhancement of the Services (“Usage Data”). For clarity, nothing in this Section 5.2 gives the Company the right to publicly identify you or any individual user as the source of such Usage Data. You hereby unconditionally and irrevocably assign to the Company all of your right, title, and interest in and to the Usage Data, including all intellectual property rights relating thereto.
5.3 The Services are protected by copyrights, trademarks, service marks, patents or other proprietary rights, as a collective work or compilation, pursuant to laws and international conventions. Except for your Customer Data, all right, title, and interest in and to the Services and derivatives thereof, in each case, including all intellectual property rights therein, are retained by the Company. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any intellectual property rights in or relating to, the Services or Third-Party Components, whether expressly, by implication, estoppel, or otherwise.
5.4 In the event you or your Permitted Users provide Company with any suggestions, comments or other feedback (“Feedback”) relating to the Services, the Company may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise, provided you shall not be identified in connection with any such Feedback without your consent at your sole discretion.
6. Subscription Fees
6.1 In consideration for the right to use the Services under the terms herein, you will pay subscription fees in the amount and subject to the payment terms set forth in your Order Form. Unless otherwise agreed in writing by the parties, the price on the Order Form will apply to any additional subscriptions you purchase during the subscription term. You agree that in the event the Company is unable to collect the subscription fees owed to the Company for the Services, the Company may take any other steps it deems necessary to collect such fees from you and that you will be responsible for all costs and expenses incurred by the Company in connection with such collection activity, including collection fees, court costs, and attorneys’ fees. Except to the extent otherwise expressly stated in this Agreement or in an Order Form, all obligations to pay subscription fees are non-cancelable and all payments are non-refundable. 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 the Company regarding future functionality or features.
6.2 Your subscription fees are exclusive of taxes, levies, duties or similar governmental assessments of any kind (excluding taxes based on the Company’s income, property and employees). You will be responsible for paying all such taxes.
6.3 The Company reserves the right to modify the subscription fees for the Services, effective upon commencement of the next renewal subscription term of the relevant Order Form(s), by notifying you of such change in writing at least 30 days before the end of the then-current subscription term and the relevant Order Form(s) will be deemed amended accordingly. You will receive standard updates to the Services that are made generally available by the Company during the subscription term specified in the Order Form. However, the Company reserves the right to offer additional functionality or premium feature improvements for an additional cost.
7. Confidential Information
7.1 Each party acknowledges that it may have access to certain confidential information of the other party (“Confidential Information”). Confidential Information will include all information in any form that under the circumstances of its disclosure, should reasonably be considered confidential, including but not limited to trade secrets. Each party agrees that it will not use Confidential Information of the other party in any way, except as expressly required for the purposes of this Agreement, nor will it disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary on a need-to-know basis) any of the other party’s Confidential Information and it will take reasonable precautions to protect the confidentiality of such information.
7.2 Without limiting the generality of the above, Company’s Confidential Information shall also include (a) the terms and conditions of any Order Form executed directly with the Company, and (b) the Services and all intellectual property embodied therein and all Intellectual Property rights relating thereto, and your Confidential Information will include all Customer Data.
8.Disclaimer of Warranties; Limitation of Liability
8.1 COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, THE INABILITY TO USE OR OPERATE, OR THE RESULTS OF THE USE OR OPERATION OF THE SERVICES (OR ANY PART THEREOF). THE SERVICES (AND ANY PART THEREOF), INCLUDING WITHOUT LIMITATION ANY CONTENT, DATA, MATERIALS, REPORTS AND ANY INFORMATION RELATED THERETO, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY REPRESENTATIONS OR WARRANTIES AS TO THE USABILITY, ACCURACY, QUALITY, AVAILABILITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, SECURITY OR EFFECTIVENESS OF ANY CONTENT, DATA, RESULTS, OR OTHER INFORMATION OBTAINED OR GENERATED BY COMPANY AND/OR CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES.
8.2 IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS, LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY SERVICES (WHETHER IN CONTRACT, EQUITY, NEGLIGENCE, TORT OR OTHERWISE) EXCEED THE AGGREGATE FEES PAID BY YOU TO COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH THE APPLICABLE CAUSE OF ACTION ARISES.
8.3 UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFIT OR LOSS RESULTING FROM BUSINESS INTERRUPTION OR LOSS OF DATA, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. COMPANY WILL NOT BE LIABLE FOR ANY DELAY, LOSS OR DAMAGE ATTRIBUTABLE TO ANY SERVICE, PRODUCT OR ACTION OF ANY PERSON OTHER THAN COMPANY AND ITS EMPLOYEES.
9.1 Company shall (a) defend you from and against any claim by a third party alleging that the technology underlying the Services, when used as authorized under this Agreement, infringes or misappropriates such third party’s trademark, United States patent, copyright, or trade secret, and (b) in relation to such claim, indemnify and hold you harmless from any damages and costs finally awarded or agreed to in settlement by the Company (including reasonable attorneys’ fees). The foregoing limitation does not apply to the extent that the alleged infringement or misappropriation arises from: (i) Third-Party Components; (ii) Customer Data; (iii) access to or use of the Services in combination with any hardware, system, software, network, or other materials or service not provided by the Company; (iv) modification of the Services other than by or on behalf of the Company; (v) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to you by or on behalf of the Company; (vi) allegation of facts that, if true, would constitute your breach of any of your representations, warranties, covenants, or obligations under this Agreement; (vii) the gross negligence or willful misconduct of you, any of your Permitted Users or any third party acting on your behalf. If any of the Services are, or in the Company’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party intellectual property right, or if your or any Permitted User’s use of the Services is enjoined or threatened to be enjoined, the Company may, at its sole discretion and expense: (a) procure the right for you to continue to use the Services; (b) replace or modify the Services, in whole or in part, to make the Services non-infringing; or (c) terminate the Agreement and refund you any prepaid subscription fees for Services that have not been provided under the applicable Order Form on a pro-rated basis.
9.2 You shall (a) defend the Company from and against any claim by a third party arising from (i) your or your Permitted Users’ use of the Services or Third-Party Components in an unlawful manner or in violation of this Agreement, the Documentation, or Order Form, or (ii) any Customer Data or your use of Customer Data with the Services, and (b) in relation to such claim, indemnify and hold the Company harmless from any damages and costs finally awarded or agreed to in settlement by you (including reasonable attorneys’ fees).
9.3 As a condition to such indemnification each of you and the Company must provide the other with written notice of such claim. Neither the Company nor you will enter into any settlement or compromise of any such claim without the indemnifying party`s prior written consent. The indemnifying party will assume the exclusive defense and control of any matter subject to indemnification. In all events, each of the Company and you will cooperate with the other in the defense of any claim, at the indemnifying party’s expense.
10.2 Modifications and Waivers. All modifications to or waivers of any term of this Agreement must be in a writing signed by you and the Company and expressly reference this Agreement. No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term, and any failure to assert any right under the Agreement will not constitute a waiver.
10.3 Relationship of the Parties. Nothing in this Agreement shall in any way be construed to constitute either Party as an agent, partner, joint-venturer, employee or representative of the other Party, and both Parties shall remain independent contractors.
10.4 Publicity. The Company may issue a press release, case study, or general marketing communications concerning its involvement with you, including mentioning you as a client on its website and using your logo for such purpose. you agree to provide a reasonable level of cooperation and assistance in connection with development and publication of a case study related to your use of the Service.
10.5 Force Majeure. Each party to this Agreement will be excused for delays in performing or from its failure to perform hereunder (other than payment delays) to the extent that the delays or failures result from causes beyond the reasonable control of such Party; provided that, in order to be excused from delay or failure to perform, such party must act diligently to remedy the cause of the delay or failure.
10.6 Assignment. This Agreement will be binding upon Company’s or your successors or assigns. However, neither this Agreement nor any of your rights, privileges, duties or obligations under this Agreement may be assigned, sublicensed, sold, or otherwise transferred or encumbered by you without the prior written consent of Company, which shall not be unreasonably withheld or delayed.
10.7 Governing Law. If you are residing within the United States, This Agreement shall be governed by the laws of the State of Delaware and all disputes arising out of this Agreement shall be subject to, and each party hereby consents to, the sole and exclusive jurisdiction of the competent courts located in Delaware. If you are residing outside the United States, this Agreement shall be governed by the laws of the State of Israel and all disputes arising out of this Agreement shall be subject to, and each party hereby consents to, the sole and exclusive jurisdiction of the competent courts located in Tel Aviv, Israel. Any principles of conflict of laws provisions shall not apply hereto. The United Nations Convention for the International Sale of Goods shall not apply. Notwithstanding the foregoing, Company may seek injunctive or other equitable relief in any jurisdiction to protect its intellectual property rights.
10.8 Waiver of Breach. No waiver by either Party of any breach of this Agreement will constitute a waiver of any other breach of the same or other provisions of this Agreement. No waiver by either Party will be effective unless made in writing and signed by an authorized representative of that Party.
10.9 Severability. If any provision in this Agreement is invalid or unenforceable in any circumstance, its application in any other circumstances and the remaining provisions of this Agreement will not be affected thereby.
10.10 No Third-Party Beneficiaries. Each Party intends that this Agreement will not benefit or create any right or cause of action in or on behalf of, any person or entity other than you and the Company.
10.11 Headings; Interpretation. The Section headings in this Agreement are for identification purposes only and will not affect the interpretation of this Agreement. Unless business days are specified, all references to “days” means calendar days.