Last Updated: March 2023
THIS SOFTWARE SUBSCRIPTION AND SERVICES AGREEMENT (“AGREEMENT“) CONSTITUTES A BINDING CONTRACT BETWEEN IKIDO TECH LTD. (“IKIDO“) AND YOU (“CUSTOMER” OR “YOU“) THAT ENTER(ED) INTO THE ORDER FORM (DEFINED BELOW).
An “Order Form” means as the case may be: (a) an offline order form (in)to which this Agreement is attached or incorporated, and which is executed by both parties (“Offline Form“); or (b) an iKido online order form, which is submitted by Customer (“Online Form“). References herein to the “Agreement” shall be deemed to include the Order Form, except with respect to the Free Tier Version for which there is no Order Form. Notwithstanding anything to the contrary, references to “Order Form”, shall not apply to you if you are using the free tier version of the Software (“Free Tier Version“).
BY ENTERING INTO THIS AGREEMENT, WHETHER BY CLICKING “I ACCEPT”, “I APPROVE” OR A SIMILAR INDICATION OF CONSENT TO THIS AGREEMENT, SIGNING AN ORDER FORM THAT INCORPORATES OR LINKS OR REFERS TO THIS AGREEMENT, OR BY OTHERWISE ACCESSING OR USING THE SOFTWARE (DEFINED BELOW), CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THE FOLLOWING (THE DATE OF SUCH OCCURRENCE BEING THE “Effective Date“):
For the avoidance of doubt:
iKido reserves the right to make changes to this Agreement at any time by sharing the changed version on our website. Such changes will be effective ten (10) days after such posting, and Customer’s continued use of the Software thereafter shall constitute Customer’s acceptance of such changes. In such cases, we will also update the “Last Updated” date and “Version” number set forth above. Please check the above webpage regularly for any changes to this these terms and conditions.
“Affiliate” means, with respect to either party, any person, organization or entity controlling, controlled by, or under common control with, such party, where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, organization or entity, whether through the ownership of voting securities or by contract or otherwise.
“Authorized User” means an employee of Customer (or any other entity, as may be specified in the Order Form) that the Customer authorizes to access and use the Software.
“Documentation” means the Software’s user guide that iKido provides or makes available to Customer.
“Feature” means any module, tool, functionality, or feature of the Software.
“Intellectual Property” means any and all inventions, invention disclosures, discoveries, improvements, works of authorship, technical information, data, databases, know-how, show-how, designs, ideas, drawings, logos, utility models, topography and semiconductor mask works, specifications, formulas, methods, techniques, processes, software (including object code, source code, APIs, and non-literal aspects), algorithms, architecture, records, documentation, and other similar intellectual property or technology, in any format and media, anywhere in the world.
“Intellectual Property Rights” means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, and whether registered or unregistered) in and to Intellectual Property, including without limitation patents, copyrights and similar authorship rights, moral (and similar personal) rights, mask work rights, data and database rights, trade secret rights and similar rights in confidential information and other non-public information, design rights, industrial property rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as: (i) all applications, registrations, renewals, reexaminations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) all goodwill associated with the foregoing.
“Law” means any federal, state, foreign, regional or local statute, regulation, ordinance, or rule of any jurisdiction.
“Line” means a specific electronic machine, equipment or any component of the former which the Customer enters into the Software for the purpose of comparing prices and optimizing the procurement process.
“New Versions” means new releases and new versions of the Software, as typically represented by the number to the left of the decimal point (e.g. Version X.0)
“Software” means iKido’s software-as-a-service (SaaS) solution for material management optimization of electronics products and any related hosted or cloud service (as may be applicable). For the avoidance of doubt, references in this Agreement to “Software” shall, unless the context clearly requires otherwise, be deemed to include the Documentation and any Updates and New Versions that iKido provides to Customer hereunder.
“Updates” means modifications, revisions, or enhancements (such as a bug fix or patch) to the Software (excluding New Versions), as typically represented by the number to the right of the decimal point (e.g. Version 1.X).
Paid Subscription. Subject to the terms and conditions of this Agreement, iKido grants Customer a limited, non-exclusive, non-assignable, non-sublicensable license and right, during the Paid Subscription Term (defined below), to permit its Authorized Users to access and use the Software solely for Customer’s internal, end-use business purposes and specifically, for the purpose of material management optimization of electronics products (the “Paid Subscription“). Customer shall remain primarily responsible and liable for the Authorized Users’ acts and omissions under this Agreement.
The Paid Subscription shall be subject to whatever other volume (such as limitations on the number of Lines), location, timing, Feature, or similar limitations or conditions which are specified in the Order Form. For avoidance of doubt, any use of the Software which exceeds the aforementioned limitations or conditions may be subject to additional Fees (defined below).
Each party and/or its Affiliates (the “Recipient“) may have access to certain non-public or proprietary information and materials of the other party and/or its Affiliates (the “Discloser“), whether in tangible or intangible form (“Confidential Information“). Confidential Information shall not include information and material which: (a) at the time of disclosure by Discloser to Recipient hereunder, was in the public domain; (b) after disclosure by Discloser to Recipient hereunder, becomes part of the public domain through no fault of the Recipient; (c) was rightfully in the Recipient’s possession at the time of disclosure by the Discloser hereunder, and which is not subject to prior continuing obligations of confidentiality; (d) is rightfully disclosed to the Recipient by a third party having the lawful right to do so; or (e) independently developed by the Recipient without use of, or reliance upon, Confidential Information received from the Discloser. The Recipient shall not disclose the Discloser’s Confidential Information to any third party, except to its employees, advisers, agents and investors, subject to substantially similar written confidentiality undertakings. Recipient shall take commercially reasonable measures, at a level at least as protective as those taken to protect its own Confidential Information of like nature, to protect the Discloser’s Confidential Information within its possession or control, from disclosure to a third party. The Recipient shall use the Discloser’s Confidential Information solely for the purposes of performing under this Agreement. In the event that Recipient is required to disclose Confidential Information of the Discloser pursuant to any Law, regulation, or governmental or judicial order, the Recipient will (a) promptly notify Discloser in writing of such Law, regulation or order, (b) reasonably cooperate with Discloser in opposing such disclosure, (c) only disclose to the extent required by such Law, regulation or order (as the case may be). Upon termination of this Agreement, or otherwise upon reasonable written request by the Discloser, the Recipient shall promptly return to Discloser its Confidential Information (or if embodied electronically, permanently erase it, and if requested, certify such erasure in a signed writing).
Notwithstanding anything in this Agreement to the contrary, Customer shall not disclose any of the Order Form’s pricing or payment terms to any third party, without iKido’s prior express written consent.
This section 7 (Audit) shall only apply to the Paid Subscription. Customer shall maintain in the ordinary course of business appropriate records in connection with this Agreement throughout the Term (defined below) of this Agreement and for at least two (2) years thereafter. Customer agrees that iKido may audit (both on-premise and remotely) such records to determine Customer’s compliance with this Agreement and its payment obligations. Any such audit shall be at iKido’s expense, require reasonable written notice, and be performed during Customer’s normal business hours. If an audit reveals underpayments of fees due pursuant to this Agreement, then Customer shall immediately pay iKido such underpayments, as well as reimburse iKido for the expense incurred by iKido in performing the audit.
As a condition to such defense and indemnification, Customer agrees: (A) to provide iKido with prompt written notice of the Infringement Claim; (B) to cede to iKido full control of the defense and settlement of the Infringement Claim (except that any non-monetary obligation imposed on Customer under a settlement shall require Customer’s prior written consent, not to be unreasonably withheld, conditioned or delayed); (C) to provide iKido with all information and assistance reasonably requested by iKido; and (D) not to admit any liability under (or otherwise compromise) the Infringement Claim. Any participation by Customer in the defense of the Infringement Claim shall be at Customer’s own cost and expense.
iKido will have no liability under this Section (Indemnification) to the extent that the Infringement Claim is based on or results from: (i) a modification to the Software not made by iKido; (ii) the combination of the Software with any third party product or service; and/or (iii) any Customer instructions or specifications.
Should the Software (in whole or in part) become, or in iKido’s opinion be likely to become, the subject of an Infringement Claim, then Customer permits iKido, at iKido’s option and expense, to either: (x) obtain for Customer the right to continue using the Software (or part thereof); or (y) replace or modify the Software (or part thereof) so that it’s use hereunder becomes non-infringing; provided, however, that if (x) and (y) are not, in iKido’s opinion, commercially feasible, iKido may terminate this Agreement upon written notice to Customer, and Customer shall be entitled to receive a pro-rated refund of any pre-paid Subscription Fees hereunder based on the remaining period of the Paid Subscription Term.
This Section (Indemnification) represents iKido’s sole liability, and Customer’s sole remedy, for Infringement Claims.
Upon termination of this Agreement: (a) the Paid Subscription and/or Free Tier License will automatically terminate and be deemed revoked, and Customer must immediately cease all access to and use of the Software, and permanently uninstall all copies of the Software; and (b) Customer shall promptly pay any unpaid amounts that are outstanding as of termination (as applicable). Sections 5 (Ownership) through 7 (Audit), and Sections 9 (Limitation of Liability) through14 (Miscellaneous), shall survive termination of this Agreement, as shall any right, obligation or provision that is expressly stated to so survive or that ought by its nature to survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.
This Agreement (including its validity) shall be governed by, and construed in accordance with, the laws of the State of Israel, without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed.
Any claim, dispute or controversy under, or otherwise in connection with, this Agreement (a “Dispute“) shall be subject to the exclusive jurisdiction and venue of the courts located in Tel Aviv-Jaffa, Israel. Customer hereby irrevocably and unconditionally submits to the personal jurisdiction of such courts and waives any jurisdictional, improper venue, inconvenient forum, or other objections to such jurisdiction and venue. Notwithstanding the foregoing, iKido reserves the right to seek equitable relief in any court worldwide of competent jurisdiction. Furthermore, the parties hereby irrevocably and unconditionally waive the right to litigate such Disputes in court before a jury.