If Licensee has purchased the license granted hereunder from a partner, reseller or distributor authorized by Granulate (“Partner”), to the extent there is any conflict between this Agreement and the agreement entered between Licensee and the respective Partner, including any purchase order (“Partner Order Form”), then, as between Licensee and Granulate, this Agreement shall prevail. Any rights granted to Licensee in such Partner Order Form which are not contained in this Agreement, apply only in connection with such Partner. In that case, Licensee must seek redress or realization or enforcement of such rights solely with such Partner and not Granulate.

1. AGREEMENT; GRANT OF LIMITED LICENSE

Subject to the terms and conditions of the Agreement and subject to payment to Granulate or the respective Partner (as the case my be), Granulate grants Licensee during the Term (defined below), a limited, non-exclusive, non-transferable, non-sub licensable and revocable right to either, as the case may be, install, use, and/or remotely access (i.e., on a SaaS basis, installed on Licensee’s premises or both, all as specified in the applicable Order or Partner Order) to Granulate’s proprietary software and all revisions, improvements and/or updates and related documentation and user manuals to the extent provided by Granulate under this Agreement (the “Software Product”), as more particularly described in the Order or Partner Order Form (as the case maybe), in object code form, for Licensee’s internal use purposes only

 (collectively, the “License”). Licensee may only use the Software Product subject to the use limitations indicated in the written or electronic order form issued by Granulate and agreed to by Licensee for the provision of the applicable license and services granted under this Agreement  (“Order”) or Partner Order Form (if purchased via Partner) and applicable laws.

The Software Product may use or include open source software, files, libraries or components that may be distributed to Licensee and are subject to third party open source license terms. A list of such open source components is available at [          ] and may be updated from time to time by Granulate and/or can be available upon request. If there is a conflict between any open source license and the terms of this Agreement, then the open source license terms shall prevail but solely in connection with the related third party open source software. To the maximum extent permitted by law, Granulate makes no warranty or indemnity hereunder with respect to any third party open source software.

2. UPDATES

Licensee shall use, promptly following Granulate delivering or making them available, any updates, new versions and/or releases (“Updates”) to the Software Product provided or made available by Granulate to Licensee.  Granulate’s warranties and obligations with respect to the Software Product shall only apply with respect to the latest version of the Software Product (as modified by any Updates) provided or made available by Granulate to Licensee and Granulate shall have no obligation to provide support or maintenance with respect to any prior versions following thirty (30) days after the Update is provided or made available to Licensee.  

3. RESTRICTED USE

Licensee shall not, directly or indirectly (i) copy, distribute, modify, incorporate or use in any other works, translate, transfer, sell, sublicense, reverse engineer (except to the limited extent applicable statutory law expressly prohibits reverse engineering restrictions), decompile, disassemble revise or enhance the Software Product or attempt to discover or derive the Software Product’s source code, or create derivative works based on the  Software Product; (ii) use or access the Software Product other than as expressly permitted  in Section 1 above; (iii) place the Software Product onto a server so that it is accessible via a public network; (iv) develop any concept, material or product containing any of the concepts and ideas contained in the Software Product; (v) work around any technical limitations in the Software Product, (vi) disclose, distribute, transfer or market the Software Product to third parties; (vii) remove or modify any proprietary notices, labels or marks on or in any copy of the Software Product; (viii) distribute, sell, sublicense, rent, lease or use the Software Product (or any portion thereof) for time sharing, hosting, service provider or other computer services to third parties or otherwise make the functionality of the Software Product available to third parties, and/or (ix) publish or make available in any manner, other than to Granulate, any reviews, opinions or impressions about, or experiences (including, without limitation, benchmarks and performance tests) with respect to the Software Product, or any features of the Software Product, including, by way of illustration and not limitation, by publicizing them in blogs or posting screenshots on the internet.

5. TITLE AND OWNERSHIP

The Software Product is a valuable trade secret of Granulate and any disclosure or unauthorized use thereof will cause irreparable harm and loss to Granulate. The Software Product and/or any copies thereof, including without limitation any derivative works made (regardless of whether such derivative works were made and/or developed pursuant to the request and/or specifications of Licensee, and irrespective of any support and/or assistance Granulate may, will or had received from Licensee, or any third party on its behalf, with respect thereto), as well as any enhancements, improvements, corrections, modifications, alterations, revisions, extensions and updates thereto, shall remain Granulate’s sole and exclusive property. All right, title and interest (including all intellectual property rights) evidenced by or embodied in and/or attached/connected/related to the Software Product and any derivatives thereof and modifications thereto, are and shall be owned solely and exclusively by Granulate. Granulate reserves all right title and interest in the Software Product other than the limited License expressly granted to Licensee herein

If Licensee contacts Granulate with feedback data (whether orally or in writing) (e.g., questions, comments, feedback data, reports, suggestions or the like) regarding the Software Product (“Feedback”), such Feedback shall be deemed the exclusive property of Granulate and Licensee hereby irrevocably transfers and assigns to Granulate all intellectual property rights to the Feedback and waives any and all moral rights or economic rights that Licensee may have in respect thereto and Granulate may use and exploit such Feedback in any manner as Granulate sees fit, without any obligation and/or liability by Granulate, including without limitation payment of royalty or any other consideration to Licensee and/or any third party.

Any anonymous information which is derived from the use of the Software Product (i.e., metadata, aggregated and/or analytics information) which is not personally identifiable information (“Analytics Information”) may be used by Granulate for providing for research and development, and/or for statistical purposes. Such Analytics Information shall be Granulate’s exclusive property.

6. PAYMENTS

(a) Sections 6(b) and (c) shall not apply if Licensee is purchasing the License via a Partner, in which case Licensee shall be obligated to make payments directly to said Partner (and in which case Licensee’s payment obligations shall be governed by the terms and conditions of its agreement with said Partner). Notwithstanding the foregoing Granulate shall not be obligated to make available the License to Licensee, unless Granulate has received the applicable fees from Partner under the separate engagement between Granulate and Partner. For clarity, all other provisions hereunder shall continue to apply.

(b) Licensee shall pay the license fees to Granulate as set forth in the Order. Payment shall be due within thirty (30) days of receipt of Granulate’s invoice. Any payment or part of a payment that is not paid by Licensee to Granulate when due shall bear interest at the rate of 1% per month or any part thereof (but in no event more than the maximum rate allowed by applicable law), and shall constitute sufficient cause for Granulate to immediately suspend the License and Licensee’s rights to use or access the Software Product.  Granulate’s determination of the monthly usage as set forth in its usage statement shall be binding, absent fraud or manifest error.

(c) All payments shall be made free and clear of, and without reduction for, any withholding taxes; (any such taxes imposed on payments of fees to Granulate will be the Customer’s sole responsibility) in U.S. Dollars by wire transfer to an account designated by Granulate. All charges and fees set forth in the Order are exclusive of any applicable sales, usage, excise, value-added or other taxes, levies and duties, all of which shall be payable by Licensee (in addition to the fees set forth on the Order). All amounts payable hereunder shall be due and payable as specified herein and shall not be subject to any set-off or deduction. Licensee shall bear all costs (including reasonable legal fees), incurred by Granulate to collect any unpaid or delinquent amounts owing hereunder.

7. WARRANTY

Granulate represents to Licensee that It has all the applicable, licenses, permits, authorities and consents to perform its obligations under this Agreement.          

8. LIMITATION OF LIABILITY

THE SOFTWARE PRODUCT IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND EXCEPT FOR THAT SET FORTH ABOVE. GRANULATE DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON INFRINGEMENT, WITH RESPECT TO THE SOFTWARE PRODUCT, AND ANY RELATED MATERIALS, SOFTWARE AND/OR DOCUMENTATION. WITHOUT LIMITING THE FOREGOING, GRANULATE DOES NOT REPRESENT OR WARRANT THAT THE USE OF THE SOFTWARE PRODUCT WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ANY DEFECT, VIRUS AND/OR ERROR.  GRANULATE IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SOFTWARE PRODUCT THAT ARISE FROM LICENSEE’S, DATA, SYSTEMS, SERVERS OR INFRASTRUCTURE DATA, OR THOSE OF ANY THIRD-PARTY.

IN NO EVENT SHALL GRANULATE OR ITS LICENSORS, AFFILIATES, DISTRIBUTORS AND RESELLERS (EACH, A “RELATED PARTY”), BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY LOST PROFITS, LOSS OR CORRUPTOIN OF DATA, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR ANY CLAIM BY ANY OTHER PARTY, HOWEVER CAUSED, BASED ON ANY THEORY OF LIABILITY AND WHETHER OR NOT GRANULATE  OR ANY RELATED PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, RELATED TO, OR ARISING IN ANY WAY OUT OF, THIS AGREEMENT, THE SOFTWARE PRODUCT, OR LICENSEE’S OR LICENSEE’S EMPLOYEES’ USE OF THE SOFTWARE PRODUCT. IN ANY EVENT, GRANULATE’S (AND ANY RELATED PARTY) CUMULATIVE AND AGGREGATE LIABILITY UNDER, OR RELATED TO, THIS AGREEMENT AND/OR THE DPA (IF ANY), SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY LICENSEE TO GRANULATE UNDER THIS AGREEMENT FOR THE SERVICES, IF ANY, DURING THE TWELVE-MONTH (12) PERIOD PRIOR TO THE BRINGING OF ANY PARTICULAR CLAIM.

The exclusions and limitations of liability set forth in the immediately preceding paragraph shall not apply in respect of (i) liability in negligence causing personal injury or death, or (ii) any other liability which cannot by law be excluded or limited.

Licensee is and will remain solely responsible for its internal policy with respect to the use and access to the Software Product and will be liable for any such access and use. Without derogating from the above, Granulate will not be responsible or liable in any way in any case of unauthorized access or use of the Software Product by Licensee, Licensee’s personnel or any other third party using Licensee’s access to the Software Product (including in case of theft, embezzlement or similar cases).

9. CONFIDENTIALITY

Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including without limitation trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, and any other information that a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Each Party shall take measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party’s Confidential Information from disclosure to a third party. The receiving party’s obligations under this Section, with respect to any Confidential Information of the disclosing party, shall not apply to and/or shall terminate if such information: (a) was already lawfully known to the receiving party at the time of disclosure by the disclosing party; (b) was disclosed to the receiving party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the receiving party has become, generally available to the public; or (d) was independently developed by the receiving party without access to, or use of, the disclosing party’s Confidential Information. Neither Party shall use or disclose the Confidential Information of the other Party except for performance of its obligations under this Agreement (“Permitted Use”). The receiving party shall only permit access to the disclosing party’s Confidential Information to its respective employees, consultants, affiliates, agents and subcontractors having a need to know such information in connection with the Permitted Use, who either (i) have signed a non-disclosure agreement with the receiving party containing terms at least as restrictive as those contained herein or (ii) are otherwise bound by a duty of confidentiality to the receiving party at least as restrictive as the terms set forth herein. The receiving party will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order or a court of similar judicial or administrative body, provided that it notifies the disclosing Party of such required disclosure to enable disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party.

Each party understands and agrees that the confidentiality obligations pertaining to the Software Product shall survive any termination or expiration of this Agreement for an indefinite period after the termination or expiration of this Agreement.  Each party further agrees that any breach or threatened breach of this Section 9 by a party may cause irreparable injury to the other party or injury is not a sufficient remedy and accordingly each party shall be entitled to seek injunctive relief in the courts of any jurisdiction in additional to all legal remedies.

10. PRIVACY

 Licensee acknowledges and agrees that it will not share or input any personal data to the Software. Licensee is fully and solely responsible for its compliance under applicable privacy laws.  For the avoidance of doubt, the Parties agree that the other Party will process personal data for the business contact information of each Party’s staff which is required to perform and administer the commercial relationship between the Parties. Granulates privacy policy is available on our website at [           ] as may be amended from time to time.

11. TERM AND TERMINATION

This Agreement shall commence on the Effective Date (or such other date as set forth in the Order or Partner Order Form, as the case may be) and shall remain in force, unless sooner terminated in accordance herewith, for the term set forth in the Order or the Partner Order Form (“Term”). Granulate may terminate this Agreement at any time upon notice and in case Licensee paid for the License, Granulate or the respective Partner shall refund Licensee any amount pre-paid for the remaining duration of the License. In case Licensee purchased the license directly from the Granulate, following such initial Term specified in the Order, the Term shall automatically renew for subsequent periods equal to the stated term in the Order, unless a party gives written notice to the other not less than sixty (60) days prior to the expiration of the then Term. 

Each party shall have the right to terminate this Agreement upon immediate written notice to the other party in the event of such party’s material breach which (A) if capable of being cured, remains uncured within thirty (30) days’ written notice in relation thereto, provided that the cure period for a monetary or payment default shall be ten (10) days; and (B) if incapable of being cured, immediately upon written notice.

Upon termination or expiration of this Agreement, Licensee shall: (i) immediately cease use of the Software Product; (ii) return the Software Product, and all copies thereof, as well as its related documentation to Granulate; (iii) erase or otherwise destroy all copies of the Software Product in its possession, which are fixed or resident in the memory or hard disks of its devices; and (iv) return to Granulate any and all of Granulate Confidential Information then in its possession.  If this Agreement is terminated by Granulate for Licensee’s breach of the Agreement, Licensee shall remain liable for the shall remain liable for the fees that would have become due for the remainder of the Term, in addition to all fees outstanding at the date of termination.

The following provisions shall survive the expiration or termination of this Agreement: 5 (Title and Ownership), ‎6 (Payments) and 8 (Limitation of Liability), 9 (Confidentiality) and ‎12 (General).

12. GENERAL

Neither Party to this Agreement shall be held responsible for the performance of any obligations under this Agreement if such performance is hindered or prevented by any circumstances of force majeure, beyond the reasonable control of such Party (“Force Majeure Event”); provided, however the foregoing excuse Licensee from the payment of all amounts owing hereunder as and when due.

Licensee shall permit Granulate to use its name and logo to identify Licensee as a customer of Granulate, such as use on Granulate’s web site or other marketing materials. Any use shall be subject to Granulate complying with any reasonable guidelines that Licensee may deliver to Granulate from time-to-time regarding the use of its name and logo.

This Agreement will be governed by the laws of State of Israel, without giving effect to the principles of conflict of laws; and any claim under this Agreement shall be brought exclusively to the competent courts in state courts in Tel Aviv, Israel.

Licensee shall not assign this Agreement without the prior written consent of Granulate. Any prohibited assignment shall be null and void.

Granulate may assign this Agreement to third party in connection with an merger, acquisition, change of control, sale of all or substantially all of its assets or voting securities, or any similar transaction of Granulate.

No waiver of rights arising under this Agreement shall be effective unless in writing and signed by the Party against whom such waiver is sought to be enforced.  No failure or delay by either Party in exercising any right, power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy and/or prejudice any rights of such Party.

Nothing in this Agreement shall be construed to limit or delay either Granulate or Licensee’s ability to seek immediate relief at law or in equity for any breach by the other.

This Agreement sets forth the entire agreement and understandings between the parties hereto and supersedes any and all prior and contemporaneous, oral or written representations, communications, understandings, and agreements between the parties with respect to its subject matter. In the event of any conflict between the terms of the License Agreement and any terms set forth in the Order, the terms in the Order shall prevail.

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