Software as a Service End User License Agreement

This Software as a Service End User License Agreement (“Agreement”), is a legal agreement by and between testRTC Ltd., a company organized under the laws of Israel with principal offices at 84 Ben Zvi Str. Tel Aviv, Israel (“TestRTC” or “Company”), and you (“you” or “Customer”). This Agreement take effect when you click the “Sign Up/Accept” button (the “Effective Date”).

You must accept these terms and conditions in order to complete the registration process and start using the TestRTC proprietary service known as the “testRTC” and related services, as such are described in the Order Form (as defined below) (the “Service”) rendered by Company.

PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THE TERMS OF THIS AGREEMENT AND MAY NOT USE THE SERVICE.  BY CLICKING THE “SIGN UP/ACCEPT” BUTTON BELOW YOU (EITHER INDIVIDUALLY OR ON BEHALF OF THE ENTITY OR COMPANY THAT YOU DULY REPRESENT) ARE ACCEPTING AND AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.

1. License. Subject to the terms and conditions set forth herein (including, without limitation, full payment of the Fees (as defined below)), Company hereby grants you, and you accept, a personal, nonexclusive, non-transferable, non-assignable, non-sublicensable, fee bearing, fully revocable, limited license to access and make use of the Service under the limitations herein and the Order Form and for the duration set forth herein. The rights granted herein with respect to access to and use of the Service are solely for your internal business purposes, for the Term (as defined below) and subject to payment in full of the Fees and your compliance with the terms of this Agreement. An “Order Form” shall mean either (a) a document signed by both parties identifying the Service purchased by you and made available by Company pursuant to this Agreement or (b) your selection and acceptance of a specific pricing tier via the online purchasing process on the Service.
2. Title & Ownership. The Service (including, but not limited to, any underlying software and/or technology), including any revisions, corrections, modifications, derivatives, enhancements, updates and/or upgrades thereto and the related documentation and all right, title, interest in and to any of the foregoing and all intellectual property rights (including, without limitation, patents, copyrights, trade secrets, and trademarks) evidenced by or embodied in and/or attached/connected/related thereto (“Company IPR”), are and shall be owned exclusively by Company. This Agreement does not convey to you an interest in or to the Service, but only a limited right of use revocable in accordance with the terms hereof. The rights granted by this Agreement are limited to those expressly stated herein, and no additional rights or licenses are being granted by implication or otherwise. Any rights not expressly granted herein are reserved by Company and Company licensors. If you contact Company with feedback data (g., questions, comments, suggestions or the like) regarding the Service (collectively, “Feedback”), Company shall have a non-exclusive, royalty-free, fully paid up, worldwide, irrevocable, sublicensable perpetual license to freely use, have used, sell, modify, reproduce, transmit, license, sublicense (through multiple tiers of sublicensees), distribute (through multiple tiers of distributors), and otherwise commercialize the Feedback in any manner (without your approval and without further compensation to you).
3. Evaluation License. This Agreement shall commence upon the Effective Date and continue for a period of 7 days thereafter (the “Evaluation Term”). The license is valid for the Evaluation Term and is designed to allow you to use and evaluate the Service during such period for the purposes of testing and evaluation only. You acknowledge that during the Evaluation Term the Service on an “AS IS” basis. In the event that you wish to receive the Service also for the period specified in the Order Form, then, after the Evaluation Term, upon your written request, your Account (as defined below) will be configured as a paying account (per the options you selected in the Order Form), all subject to the terms and conditions of this Agreement. In the event that you determine not to extend the term of this Agreement beyond the Evaluation Period then this Agreement shall automatically and immediately terminate, your rights under this Agreement shall terminate, Company shall disable access to the Service, you shall immediately cease to make use of the Service, you shall immediately cease using and return all property in your possession belonging to Company, including any and all data relating to the Service and any Confidential Information and all copies thereof and/or shall erase/delete any such data and information held by you in electronic form and shall confirm such deletion to Company in writing. You may terminate this Agreement during the Evaluation Term by discontinuing your use of the Service and requesting from the Company that your Account be deleted. Company may terminate this Agreement immediately during such term if you violate any provision of this Agreement or for any other reason.
4. Account. In order to access and use the Service, an account will be created using the credentials provided to you by Company in connection with your use of the Service (the “Account”), to be accessed and/or used solely by your employees who are explicitly authorized by you to use the Service (each, a “Permitted User”). You hereby acknowledge and agree: (i) to keep, and ensure that the Permitted Users will keep the Account login details and passwords secured and confidential at all times, and otherwise comply with the terms of this Agreement; (ii) to remain solely responsible and liable for the activity that occurs in the Account and for any breach of this Agreement by a Permitted User; and (iii) to promptly notify Company in writing if you become aware of any unauthorized access or use of the Account or the Service.
5. Restrictions. Except as expressly authorized herein, you shall not: (A) copy, adapt, vary, enhance, or modify any portion of the Service, nor permit any person or entity to do so; (B) take any action designed to defeat the operation of any security measure incorporated in the Service and/or make use of the Service in a manner exceeding the usage limits set forth in the Order Form (and a user’s password may not be shared with any third party); (C) publish, distribute, sell, disclose, market, sublicense, rent, assign (by operation of law or otherwise), use for service bureau purposes, lease, display, provide, transfer or make available the Service, or any portion thereof, to any third party; (D) use the Service in any manner not authorized by this Agreement; (E) use, or encourage, promote, facilitate or instruct others to use, the Service for any illegal, harmful or offensive use; (F) allow any person or entity, other than you to access the Service; (G) use the Service without receiving the applicable  Customer’s Users’ (as defined below) prior explicit consent for the collection of personally identifiable information as required under any applicable law; (H) “unlock”, decompile, reverse engineer, disassemble or otherwise translate the Service or otherwise make any attempt to discover the source code of, modify, or create derivative works of the Service or any part thereof, nor permit any person or entity to do so;  and/or (I) alter, remove or destroy any copyright notice or other proprietary notices included in the Service. You hereby covenant and agree to: (i) Subject to the usage limits set forth in the Order Form, limit access to and use of the Service solely to your employees who require access in connection with your use of the Service, and (ii) take all reasonable precautions to prevent unauthorized or improper use or disclosure  or use of the Service, and you will indemnify, defend, and hold harmless Company and its affiliates and  their respective employees, shareholders, officers, directors, and agents (“Indemnified Parties”), from any and all demands, claims, losses, liabilities, damages, fees, fines, expenses and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) which result from any claim or allegation against any Indemnified Party arising from: (i) your use of the Service, (ii) a third party claim, suit or proceeding that use of the Customer Data within the scope of this Agreement infringes any privacy right of a third party, and/or (iii) your breach of any term of this Agreement.
6. Fees and Taxes. You shall pay the fees and other charges for the Service as set forth in the Order Form (the “Fees”). Unless otherwise set forth in the Order Form, the Fees shall be invoiced annually in advance and payment shall be due within thirty (30) days of the date of the invoice. If you exceed the usage limits set forth in the Order Form, you shall pay any invoice for excess usage. Unless otherwise specified in the Order Form, you will pay all amounts due under this Agreement in U.S. Dollars currency. All fees and other amounts paid by you under this Agreement are non-refundable. Any payments not made by the applicable due date shall accrue interest at the rate of one and one-half percent (1½%) per month until full payment thereof. All amounts payable will be made without setoff or counterclaim, and without any deduction or withholding. All fees and charges payable by you are exclusive of applicable taxes and duties, including, but not limited to, VAT and applicable sales tax. You will provide Company any information Company may reasonably request to determine whether it is obligated to collect VAT from you, including your VAT identification number. You shall pay to the relevant taxing authority and Company for any liability relating to such taxes, duties, and charges, other than taxes based upon your net income. If you are legally entitled to an exemption from any sales, use, or similar transaction tax, you are responsible for providing Company with legally-sufficient tax exemption certificates for each taxing jurisdiction. Company will apply the tax exemption certificates to charges occurring after the date Company receives the tax exemption certificates. If any deduction or withholding is required by law, you will notify Company in advance and in writing and will pay Company any additional amounts necessary to ensure that the net amount that Company receives, after any deduction and withholding, equals the amount Company would have received if no deduction or withholding had been required. Additionally, you will provide Company with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority. You retain the responsibility for settling all outstanding balances in a timely manner and maintaining updated billing information. To the extent that you make any payment through a third party interface or platform provided by and/or in and/or linked from the Service (such as, but not limited to, Zooz, Bluesnap, Paypal etc.), such payment and/or any use of such third party interface or platform shall be subject to the terms and conditions and privacy policy of and applicable to such third party interface or platform and not this Agreement or the Privacy Policy specified below. Company is not and will not be responsible or liable for such third party service/interface/platform or any acts or omissions such third party. We recommend you to carefully read the terms of use and privacy policy of such third party interface or platform. We reserve the right to discontinue or change any such third party interface or platform provided by and/or in and/or linked from the Service.
7. Customer Data and Analytics Information. The provision of the Service hereunder requires Company to monitor traffic transmitted by your networks and may require you to provide, upload, transmit, or make accessible to Company certain data, including without limitation, personally identifiable information transmitted by your networks (collectively, the “Customer Data”), as further detailed in Company’s Service Privacy Policy, which can be found at https://testrtc.com/privacy/. You agree that Company will collect, monitor, store and use the Customer Data, on your behalf, in order to provide the Services. You control access to the Customer Data and have full administrative control over such data, including by your right to view or modify it. As between Company and you, the intellectual property rights and all other rights, title and interest of any nature in and to the Customer Data, which may be stored on Company’s database, are and shall remain your and your licensors exclusive property. Company shall be considered granted an irrevocable, non-exclusive, assignable, sub-licensable, worldwide, royalty-free, fully paid up license to use, in accordance with any applicable privacy laws, the Customer Data in order to provide the Services. Except as set forth herein, nothing in this Agreement shall be construed as transferring any rights, title or interests in the Customer Data to Company or any third party. Company may collect, disclose, publish and use in any other manner anonymous information which derives from the use of the Service (e., non-identifiable information, aggregated and analytics information) (“Analytics Information“)), in order to provide and improve Company’s programs and services and for any legitimate business purpose. Company is and shall remain the sole owner of the Analytics Information. You represent that: (i) you will use the Service in compliance with any applicable laws, rules, regulations, and directives, including, without limitation, privacy protection laws; and (ii) you have and will have the full right, authority, permissions, approvals and consents from the applicable data subjects (including those whom use your organizational devices/computers) (the “Customer’s Users”) to permit Company to access, use, monitor, process, analyze, display and/or store the Customer’s Data in order to provide the Services. You are, at all times, solely responsible for obtaining and maintaining all Customer’s Users’ consents, if applicable, and all other legally necessary consents or permissions required to disclose, process, use, retrieve, transmit and view Customer Data. You assume the responsibility for receiving the Customer’s Users’ requests to delete or modify their personal information and handle such requests, and to notify Company of any such requests. You shall remain solely responsible and liable for, and release Company from, any and all liability arising from, the collection of such Customer Data by Company, Company’s use of the Customer Data as permitted herein. You further acknowledge that you are solely responsible for the backup of your Customer Data.
8. Warranty Disclaimer. ANY USE BY YOU OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE IS PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED, AND/OR STATUTORY, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, SATISFACTORY QUALITY, SECURITY, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, AVAILABILITY, TIMELINESS, CORRECTNESS, RELIABILITY, RESULTS, IN RESPECT OF THE SERVICE, CONTENT, AND WORK PRODUCT THEREOF AND COMPANY SHALL NOT BE LIABLE FOR THE FOREGOING. COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICE WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE SERVICE WILL OPERATE ERROR FREE, WITHOUT DELAY AND/OR IN AN UNINTERRUPTED AND/OR TIMELY FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE SERVICE WILL BE CORRECTED, AND/OR THAT THE SERVICE IS COMPATIBLE WITH ANY PARTICULAR PLATFORM AND/OR SECURED FROM UNAUTHORIZED ACCESS. COMPANY IS NOT OBLIGATED TO PROVIDE ANY UPDATES TO THE SERVICE. NO COMPANY DEALER, DISTRIBUTOR, RESELLER, AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED WARRANTIES.
9. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, DAMAGES FOR LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF USE, LOSS OF, DAMAGE TO, OR CORRUPTION OF, DATA, OR LOSS OF BUSINESS INFORMATION, ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES OR LIABILITIES HAVE BEEN COMMUNICATED TO COMPANY AND REGARDLESS OF WHETHER COMPANY HAS OR GAINS KNOWLEDGE OF THE EXISTENCE OF SUCH DAMAGES OR LIABILITIES. COMPANY’S CUMULATIVE, AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT,  WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID BY YOU TO COMPANY HEREUNDER DURING THE THREE (3) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
10. You acknowledge that any information, in whatever form, tangible or intangible, including information in oral, visual or computer database form, relating to the Service and/or the Company and/or contained within the Service and/or otherwise disclosed by Company in connection with this Agreement (including the terms and conditions of this Agreement and the Feedback) is confidential information of the Company (the “Confidential Information”). You shall refrain from using or exploiting any and all of the Confidential Information for any purposes or activities other than for the performance of this Agreement. You shall (i) hold the Confidential Information in strict confidence and protect the Confidential Information to the same extent and by the same means it uses to protect the confidentiality of its own proprietary or confidential information that it does not wish to disclose, but in no event less than reasonable means, and (ii) refrain from disclosing or facilitate disclosure of the Confidential Information to anyone, without Company’s prior written consent, except those of its employees and/or subcontractors with a need to know such information for the purposes of the performance of this Agreement whom are bound by confidentiality obligations no less restrictive than those set forth herein. In any event, you shall be responsible for any breach thereof by any of its said employees and/or subcontractors. You will promptly report to Company any suspected or actual unauthorized use or disclosure of the Confidential Information that it becomes aware of and provide reasonable assistance to Company in the investigation and prosecution of any such unauthorized use or disclosure. Notwithstanding anything to the contrary herein, the rights and obligations set forth in this Section, may be enforced by legal action seeking injunctive relief without posting a bond.   
11. Changes to Service. Company may change the Services’ layout and design and the availability of the content and functions included therein or may change the form, features or nature of the Service, from time to time, without giving you any prior notice. You hereby agree and acknowledge that Company is not responsible for any errors or malfunctions that may occur in connection with the performance of such changes.
12. Reference Customer. You agree that Company may identify you as a user of the Service and use your trademark and/or logo (i) in sales presentations, promotional/marketing materials, and press releases, and on Company’s website, and (ii) in order to develop a brief customer profile for use by Company on Company’s website for promotional purposes.
13. Third Party Components. The Service is based on software developed and owned by Company and/or its licensors, and may use or include third party software, files and components that are subject to open source and third party license terms (“Third Party Components”). Your right to use such Third Party Components as part of, or in connection with, the Service is subject to any applicable acknowledgements and license terms attached to such Third Party Components, contained therein or related thereto. If there is a conflict between the licensing terms of such Third Party Components and this Agreement, the licensing terms of the Third Party Components shall prevail in connection with the related Third Party Components. This Agreement does not apply to any Third Party Components accompanying or contained in the Service and Company disclaims all liability related thereto. You acknowledge that Company is not the author, owner or licensor of any Third Party Components, and that Company makes no warranties or representations, express or implied, as to the quality, capabilities, operations, performance or suitability of Third Party Components. Such Third Party Components are provided on an “AS IS” basis without any warranty of any kind and shall be subject to any and all limitations and conditions required by such third parties. Under no circumstances shall the Service or any portion thereof (except for the Third Party Components contained therein) be deemed to be “open source”, “free software”, or “publicly available” software.
14. Term and Termination. This Agreement shall commence on the Effective Date and shall continue for the Evaluation Term, and to the extent that you wish to continue to receive the Service after the Evaluation Term, shall continue for as long as you pay the Fees, unless terminated earlier in accordance with this Section 14 (the “Term”). Either party may terminate this Agreement upon written notice if the other party fails to cure a material breach within fifteen (15) days’ of notice thereof. Company may terminate this Agreement if you fail to make payment when due of any amount and you fail to cure such default within ten (10) days of issuance of notice thereof. At any time, you may terminate this Agreement for convenience upon a prior written notice of 30 days. In the event of such termination for convenience by you, any fees paid to Company shall be non-refundable. Without derogating from the above, either party may immediately terminate this Agreement if any assignment is made by the other party for the benefit of creditors, or if the other party is the subject of an involuntary state or federal bankruptcy, insolvency, or similar proceeding that is not dismissed within sixty (60) days of filing , or if the other party files for voluntary bankruptcy, insolvency, or similar proceeding, or if the other party ceases its business operations or becomes unable to pay its debts when due, or enters into an agreement with its creditors providing for the extension or composition of debt. Upon termination or expiration of this Agreement for any reason: (i) the license granted to you in this Agreement shall expire, access to the Service shall be disabled by Company, and you shall discontinue all further use of the Service; (ii) you shall pay forthwith all amounts due and owing under this Agreement for the remainder of the applicable term, and, notwithstanding anything to the contrary herein, you shall not be entitled to a refund of any amounts paid hereunder, (iii) Company shall immediately return  and /or permanently delete (as instructed by you) and certify to you, within fourteen (14) business days, that it has done so, all Customer Data provided by you pursuant to this Agreement, provided that Company will retain any anonymous and non-identifiable information which derives from the provision of the Service, and (iv) you shall immediately cease using and return all property in its possession belonging to Company, including any and all data relating to the Service and any Confidential Information and all copies thereof and/or shall erase/delete any such data and information held by it in electronic form and shall confirm such deletion to Company in writing. Sections 2, 3 (solely with regard to the provisions relating to the consequences of termination), and 5-15 shall survive any termination or expiration of this Agreement. Upon termination or expiration of this Agreement, you will lose all access to any Customer Data that Company may be storing in order to make the Service available to you. You shall be responsible to download the Customer Data prior to termination of this Agreemen Termination of this Agreement shall not limit Company from pursuing any other remedies available to it under the applicable law.
15. Governing Law & Jurisdiction. Miscellaneous. This Agreement shall be construed and governed in accordance with the laws of the State of Israel (without regard to its principles of conflicts of law), and the competent courts in the city of Tel Aviv, Israel shall have exclusive jurisdiction and venue to adjudicate any conflict or dispute arising out of or relating to this Agreement. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be interpreted so as to reasonably effect the intention of the parties. You shall not assign this Agreement or any right whether by operation of law or otherwise or delegate any performance. For the purpose of the immediately preceding sentence, assignment shall be deemed to include (i) a sale or transfer of all or substantial part of your assets to any person; (ii) you being merged or consolidated with any other person; and/or (iii) a change of control of Customer. Any assignment attempted to be made in violation of this Agreement shall be null and void. With the exception of payment obligations, neither party shall be liable to the other party for any delay or failure in performance, to the extent such delay or failure is due to causes beyond its reasonable control. This Agreement, including all attachments and exhibits (including the Order Form and the Privacy Policy), constitutes the entire agreement between the parties, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof. Except if explicitly otherwise set forth in an attachment or exhibit, in the event of any conflict between the main agreement and any attachments and exhibits thereto, the former shall prevail. This Agreement may be modified, amended, or supplemented, only in writing and signed by the duly authorized representatives of both parties. Unless stated otherwise in a written agreement between you and Company, Company may at its discretion, at any time, change the Fees under any payment conditions as it deems fit, subject to sixty (60) days prior notice either by email and/or a prominent notice on the Service. If Company will unilaterally change the Fees and you decide to stop using the Service, your license shall be automatically terminated with immediate effect and without any requirement from Company to provide a notice or a remedy period. By continuing to use the Service, following such modifications, you agree to be bound by such modifications. Any additional or conflicting terms of your purchase order or any other form employed by you are rejected by Company. Any notices permitted or required under this Agreement shall be in writing, and shall be deemed given when delivered (a) in person, (b) by overnight courier, upon written confirmation of receipt, (c) by certified or registered mail, with proof of delivery, or (d) by facsimile or e-mail, when receipt is electronically confirmed. Notices shall be sent to the address set forth herein.

BY CLICKING THE “SIGN UP/ACCEPT” BUTTON, YOU ACKNOWLEDGE THAT (A) YOU HAVE READ AND REVIEWED THIS AGREEMENT IN ITS ENTIRETY, (B) YOU AGREE TO BE BOUND BY THIS AGREEMENT, (C) THE INDIVIDUAL SO CLICKING HAS THE POWER, AUTHORITY AND LEGAL RIGHT TO ENTER INTO THIS AGREEMENT ON BEHALF OF HIS/HER ORGANIZATION AND ITS AFFILIATES, AND (D) BY SO CLICKING, THIS AGREEMENT CONSTITUTES BINDING AND ENFORCEABLE OBLIGATIONS ON YOUR BEHALF.

Last update: 1 June 2016