Terms and Conditions for Professional Services
These Terms and Conditions for Professional Services (“Terms”) are the terms and conditions upon which CoreTigo Ltd. and its affiliates (collectively, “CoreTigo”) makes all sales of its Professional Services and any related industrial wireless devices (“Hardware”), its related software (“Software”), all related accessories and technical documentation and any and all ancillary products (collectively, the “Service”) and constitute an agreement between CoreTigo and the entity purchasing the Service (“Buyer”). CoreTigo expressly disclaims any other terms and conditions of sale and unless agreed otherwise in writing by both parties, these Terms shall constitute the final, complete and exclusive agreement of the parties with respect to all sales of the Service by CoreTigo to Buyer.
1. Services. CoreTigo will provide Buyer with certain services as identified in a PRD (Product/Solution Requirements Document) or SOW (Scope of Work) document version as defined and written in a Quote and Purchase Order accordingly (“Service”). Each party’s roles and responsibilities, effort and resources involved and other terms and conditions relevant to the Services are set forth in the PRD/SOW. Buyer hereby acknowledges that its obligations and responsibilities under the PRD/SOW are required in order to enable CoreTigo to provide the Service herein, and therefore Buyer hereby agrees and undertakes to fulfill the Buyer Responsibilities. CoreTigo will not be liable to Buyer in the event that the Service cannot be provided due to Buyer’s failure to complete the Buyer Responsibilities.
2. Grant of License. Subject to Buyer’s payment of the applicable Fees (as defined in the PRD/SOW and PO accordingly), and subject to the terms and conditions set forth here, during the Term, CoreTigo hereby grants to Buyer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use, in object code only, the CoreTigo software components included in the Service deliverables. Buyer may make reasonable required number of copies of the Software for backup or archival purposes only, provided that such copies must include all copyright or other proprietary notices contained in the original.
3. License Restrictions. Except as expressly permitted under Section 2, Buyer will have no right and will not, nor will it authorize or assist others to: (a) copy the Documentation except as reasonably required in connection with authorized uses of the CoreTigo Service; (b) use the CoreTigo Service in a standalone manner on a service bureau or time sharing basis, or distribute the CoreTigo Service for use in any manner; (c) distribute, copy, rent, lease, sublicense, assign, transmit, sell or otherwise transfer the CoreTigo Service or any of Buyer’s rights therein; (d) use CoreTigo’s name, logo or trademarks without prior written consent from CoreTigo other than in connection with the Service; (e) publish the results of any comparisons or other benchmarking activities that Buyer will conduct with the CoreTigo Service, either as a standalone or in connection with any other software or hardware, without the prior written consent of CoreTigo; (f) publish reviews of the CoreTigo Service without the prior written consent of CoreTigo; or (g) integrate the CoreTigo Service with any products other than the related Products to the Service without first obtaining CoreTigo’s prior written consent.
4. Proprietary Rights
4.1. Intellectual Property Rights. “Intellectual Property Rights” means all patents, patent rights, copyrights, mask work rights, moral rights, database rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights, as may now exist or hereafter come into existence, and all applications therefor and registrations, renewals and extensions thereof, and all inventions and improvements thereto, under the laws of any state, country, territory or other jurisdiction.
4.2. Ownership. The CoreTigo Service and/or any copies of its deliverables thereof, including without limitation any derivative works made, as well as any updates thereto, whether or not provided to Buyer pursuant to this Agreement, and all Intellectual Property Rights therein, shall remain the sole and exclusive property of CoreTigo (or its licensors). All Intellectual Property Rights in (including without limitation any Intellectual Property Rights evidenced by or embodied in and/or attached/connected/related to): (i) the CoreTigo Service, or part thereof, and (ii) all the parameters and framework of the content, reports, information or results that Buyer may obtain through the use of the CoreTigo Service (collectively, “Reports”) are and shall be owned solely and exclusively by CoreTigo. Unless Reports are separately referred to herein, all references in this Agreement to the CoreTigo Service shall include the Reports. Nothing in this Agreement shall constitute a waiver of CoreTigo’s Intellectual Property Rights under any law, or be in any way construed or interpreted as such. CoreTigo and its licensors reserve any and all rights not expressly granted. Buyer shall include in the OEM Product a notice that the OEM Products include software whose copyright is owned by, or licensed from, CoreTigo, and it will contain any and all confidential or proprietary notices or legends that appear on the CoreTigo Service, unless otherwise authorized in writing by CoreTigo.
5. Support Services and Professional Services
5.1. Support Services. CoreTigo will provide to Buyer support and maintenance services for the Services (“Support Services”) on an hourly based fee or a separate support & maintenance contract after acceptance of the Service has been received from Buyer to CoreTigo.
5.2. Professional Services. If Buyer desires any additional Professional Services with respect to the CoreTigo Service, such Professional Services shall be set forth and defined in one or more additional Statements of Work (“SOW”) or PRD, and subject to payment by Buyer of all fees associated with such Professional Services and agreed upon as part of an additional SOW/PRD.
6. Representations and Warranties
6.1. CoreTigo hereby represents and warrants that: (i) it has the requisite technical and professional knowledge, know-how, expertise, skills, talent and experience required in order to perform the Services in a professional and efficient manner; (ii) there are no restrictions, limitations, contractual obligations or statutory obligations or restrictions or any other factor whatsoever which prevents or restricts or is likely to prevent or restrict CoreTigo from fulfilling all its obligations under this Agreement and the performance of the Services; and (iii) the execution of this Agreement by CoreTigo and the performance of the obligations hereunder shall not constitute or result in a breach of any other obligation, contractual or otherwise, of CoreTigo.
6.2. Buyer hereby represents and warrants that: (i) there are no restrictions, limitations, contractual obligations or statutory obligations or restrictions or any other factor whatsoever which prevents or restricts or is likely to prevent or restrict Buyer from fulfilling all its obligations; and (ii) the execution by Buyer and the performance of the obligations hereunder shall not constitute or result in a breach of any other obligation, contractual or otherwise, of Buyer.
7. Limited Warranties
7.1. Hardware Warranty. CoreTigo warrants to Buyer that for a period of 2 years commencing on the date that the Service is delivered to Buyer, as evidenced by the original sales receipt (“Warranty Period”), subject to the terms and conditions of this Section 14, the hardware components of the Product will be free from defects in materials and workmanship and will substantially comply with the applicable specifications set out in the Documentation (“Hardware Warranty”).
7.2. Warranty Service. If Buyer notifies CoreTigo in writing within the Warranty Period, of a warranty claim, CoreTigo will repair or replace the defective hardware component(s) with new or refurbished part(s). Any repairs, fixes or replacement parts provided as part of the foregoing warranty service are warranted for the remainder of the applicable Warranty Period (as of the date on which Buyer has shipped the defective hardware components to CoreTigo), as then in effect.
7.3. Warranty Service Exclusions. Warranty services described above exclude, and CoreTigo shall have no responsibility hereunder to support, any and all of the following: (i) CoreTigo Products that have been altered, reconfigured or modified by Buyer or any third party other than CoreTigo’s authorized customer support personnel; or (ii) damage to the CoreTigo Product caused by Buyer’s negligence, abuse or use other than as specified in the Documentation or by natural disasters or other factors beyond the control of CoreTigo.
7.4. CoreTigo further warrants that: (a) It has the power and authority, and has taken all corporate action required, to enter into and fully perform this Agreement, and its entry into and performance of this Agreement do not and will not violate any agreement to which it is bound; (b) CoreTigo or its licensors are the sole owners of the software components of the Service deliverables and CoreTigo has the right to grant the licenses and rights to Buyer set forth in this Agreement; (c) the Software does not and will not contain any time-out, license key or other restrictive mechanisms of any kind other than as are under the sole control of Buyer; (d) the CoreTigo Service does not include or contain, and will not at any time knowingly include or contain, any virus, “Trojan horse” or other harmful code of any kind or nature whatsoever; and (e) CoreTigo will comply with all applicable laws, rules, regulations, and ordinances in its performance of this Agreement.
7.5. Warranty Disclaimer. EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, THE CORETIGO SERVICE IS PROVIDED “AS IS”. CORETIGO DOES NOT WARRANT THAT THE CORETIGO SERVICE WILL MEET BUYER’S REQUIREMENTS, THAT THE CORETIGO SERVICE DELIVERABLES WILL OPERATE IN THE COMBINATIONS WHICH BUYER MAY SELECT FOR USE, THAT THE OPERATION OF THE CORETIGO SERVICE DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERROR CONDITIONS WILL BE CORRECTED. ADDITIONALLY, CORETIGO DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO BUYER.
8.1. CoreTigo shall defend or settle any suit or proceeding brought against Buyer based on a third party claim that a Service sold hereunder constitutes an infringement of any existing United States patent, copyright or trade secret; provided that CoreTigo is notified promptly in writing and is given complete authority to control the defense, as well as assistance and information required for the defense. If any Service is, in the opinion of CoreTigo likely to, or does, become the subject of a claim for patent infringement, CoreTigo may, at its sole option, procure for Buyer the right to continue using the Service or modify it to become non-infringing. If CoreTigo is not reasonably able to modify or otherwise secure Buyer the right to continue using the Service, CoreTigo shall remove the Service and refund Buyer the amounts actually paid. CoreTigo shall not be liable for any infringement or claim based upon: (i) the combination or incorporation of the Service with other products (including the Combined Product) not supplied by CoreTigo, to the extent that the infringement results from such combination or incorporation of the Service; (ii) the modification by Buyer of the Service not contemplated by these Terms or authorized by CoreTigo; (iii) Buyer’s negligence or willful misconduct; (iv) any use by Buyer of a Service in violation of these Terms; or (v) Buyer’s use of a Service in connection with any Combined Product where there may be reasonable risk to human life or bodily injury. In all the above cases, and for claims by third parties related to use of the Service, or the violation of law or regulation in the marketing, sale or promotion of any Buyer Product and/or Combined Product, Buyer shall defend, indemnify and hold CoreTigo harmless from any damage, loss, liability and/or expenses (including reasonable attorneys’ fees).
9. Limitation of Liability
9.1. IN NO EVENT SHALL CORETIGO BE LIABLE TO BUYER FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES, LOST PROFITS, OR BE LIABLE TO ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER, EVEN IF CORETIGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2. CORETIGO’S AND BUYER´S ENTIRE LIABILITY UNDER THIS AGREEMENT FOR ANY DAMAGES FROM ANY CAUSE WHATSOEVER IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF FORM OR ACTION, WHETHER IN CONTRACT, NEGLIGENCE OR OTHERWISE, SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO ALL AMOUNTS ACTUALLY PAID BY BUYER TO CORETIGO PURSUANT TO THIS AGREEMENT WITHIN A 12 MONTH PERIOD PRIOR TO THE BRINGING OF ANY PARTICULAR CLAIM.
9.3. Termination for Cause. Either party may terminate this Service by giving the other party written notice of such termination upon the other party’s breach of any material term (subject to the breaching party’s right to cure within 30 (thirty) days after receipt of such notice, to the extent such breach is curable), the other party’s insolvency, making an assignment for the benefit of creditor, receivership, or the institution of any similar proceedings by or against the other party.
9.4. Effect of Termination. For the avoidance of doubt, termination of this Agreement for any reason shall not relieve either party from its obligation to pay the other any outstanding payments due and payable. Upon termination, CoreTigo shall discontinue all further Services and Buyer shall: (i) compensate CoreTigo within 30 (thirty) days of termination for all fees and expenses incurred by CoreTigo due as of the date of termination, but not yet paid; and (ii) reimburse CoreTigo any and all non-cancellable fees and expenses incurred as of the date of the termination.
10. Force Majeure. Neither party shall be liable to the other for any performance delay or failure to perform hereunder, due to any act, omission or condition beyond the reasonable control of the affected party (“Force Majeure Event”), provided the affected party gives prompt notice to the other and makes reasonable efforts to resume performance as soon as possible. The party not affected by such act, omission or condition may terminate this Service upon written notice if the other party remains unable to perform because of any circumstances described in this Section for a period of more than 60 days. It is hereby clarified that neither an occurrence of a Force Majeure Event or the termination in connection therewith shall relieve either party from its obligation to pay the other any outstanding payments.
11. Miscellaneous. These Terms shall constitute the final, complete and exclusive agreement of the parties with respect to all sales of Service by CoreTigo to Buyer and shall supersede all prior offers, negotiations, understandings and agreements. No additional or different terms or conditions, whether material or immaterial, shall become a part of any agreement unless expressly accepted in writing by an authorized officer of CoreTigo. These Terms are not assignable by Buyer. CoreTigo may assign these Terms at its discretion. These Terms are binding on the parties and their respective successors and permitted assigns. Any waiver by CoreTigo of one or more of these terms and conditions or any defaults hereunder shall not constitute a waiver of the remaining terms and conditions or of any future defaults hereunder. No failure or delay on the part of CoreTigo in exercising or enforcing any right hereunder shall operate as a waiver thereof or preclude any other exercise or enforcement of rights hereunder. Any provision of these Terms that is prohibited or unenforceable under applicable law shall be ineffective to the extent of such prohibition or unenforceability, without impairing or invalidating the remaining provisions of these. These Terms and all performance and disputes arising out of or related to goods in question, shall be governed by the laws of the State of Israel, without reference to conflict of laws principles. The parties hereby irrevocably agree to submit any claim arising out of or related to these terms and conditions to the competent courts of Tel-Aviv, Israel.