License Agreement

IKIDO SOFTWARE SUBSCRIPTION AND SERVICES AGREEMENT

Version 1.1

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“):

THIS AGREEMENT, AND
OTHER SUPPLEMENTAL TERMS AND POLICIES REFERENCED HEREIN, WHICH ARE STATED TO BE INCORPORATED INTO, AND MADE A PART OF, THIS AGREEMENT BY REFERENCE.

For the avoidance of doubt:

You or the individual who submitted the Order Form represents that he/she has the authority to act on behalf of the Customer, and to bind the Customer to this Agreement; and
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.

1. DEFINITIONS

“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).

2. SUBSCRIPTION RIGHTS AND RESTRICTIONS

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).
Free Tier Version. If you are using the Free Tier Version, subject to the terms and conditions of this Agreement, iKido grants you a limited, non-exclusive, non-assignable, non-sublicensable license and right, during the Free Tier Version Term (defined below), to access and use the Software solely for your internal, end-use business purposes and specifically, for the purpose of material management optimization of electronics products (“Free Tier License“).
Restrictions. Use of the Software must be in accordance with the Documentation. As a condition to the Paid Subscription and/or Free Tier License, Customer shall not do (or permit or encourage to be done) any of the following (in whole or in part): (a) copy, “frame” or “mirror” the Software; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Software to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Software; (d) modify, alter, adapt, arrange, or translate the Software; (e) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Software; (f) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Software; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Software; (h) make a derivative work of the Software, or use it to develop any service or product that is the same as (or substantially similar to) it; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Software; (j) employ any hardware, software, device, or technique to pool connections or reduce the number of nodes, devices or users that directly access or use the Software (sometimes referred to as ‘virtualisation’, ‘multiplexing’ or ‘pooling’) in order to circumvent any limitations or conditions on the scope of the Paid Subscription and/or Free Tier License; (k) forge or manipulate identifiers in order to disguise the origin of any data or content inputted or uploaded to, or transmitted through, the Software by Customer; or (l) take any action that imposes or may impose (as determined in iKido’s reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Software, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure.
Reservation of Rights. For the avoidance of doubt, the Software (including any copies thereof) is only licensed hereunder, and no title in or to the Software (or such copies) passes to Customer. Any rights not expressly granted herein are hereby reserved by iKido and its licensors, and, except for the rights explicitly granted under the Paid Subscription and/or Free Tier License, Customer is granted no other right or license to the Software, whether by implied license, estoppel, exhaustion, operation of law, or otherwise.
Delivery. The Software will be delivered electronically. Unless specified otherwise in the Order Form, the Software shall be deemed accepted upon delivery.
Hosting and Availability. The Software will be made available to Customer via iKido’s website https://app.ikido.tech/#/login (the “Website“) or portal, or by other means, as instructed by iKido. The hosting of the Platform (and related processing) will be provided by a third party cloud hosting provider selected by iKido (“Hosting Provider“), and accordingly the availability of the Software shall be in accordance with the then-current uptime commitments that the Hosting Provider gives to iKido. The Order Form may specify any restrictions as to which third parties may be a Hosting Provider. iKido shall notify Customer in writing if, and when, iKido engages a new Hosting Provider under this Agreement. In the event iKido decides to host the Software internally on iKido’s own servers under this Agreement, then, at the written request of Customer, the parties agree to negotiate in good faith an addendum to this Agreement to address Software uptime availability.

3. SUPPORT

Support. “Support” means iKido’s standard technical support, provided through the Internet and through the following email address support@ikido.tech, in the use of the Software, and any corrections, updates or upgrades to the Software made available to Customer by iKido during the Subscription Term and, if applicable, according to the then-current terms detailed in the support webpage on the Website. Customer shall be responsible to verify the support terms periodically. Notwithstanding anything to the contrary, if you are using the Free Tier Version, iKido may provide Support at its sole discretion but is under no obligation to do so.

4. PAYMENT

Fees. This Section 4.1 (Fees) shall not apply if you are using the Free Tier Version. Customer agrees to pay all fees stated in the Order Form (“Fees“), and in accordance with such Order Form’s payment terms. Customer authorizes iKido (either directly or through third parties) to request and collect payment (or otherwise charge, refund or take any other billing actions) from iKido’s payment provider or Customer’s designated banking account, and to make any inquiries iKido deems necessary to validate Customer’s designated payment account or financial information, in order to ensure prompt payment (including for the purpose of receiving updated payment details from Customer’s payment, credit card or banking account provider – such as, updated expiry date or card number as may be provided to iKido by Customer’s credit card company).
General. This Section 4.2 (General) shall not apply if you are using the Free Tier Version. Unless expressly stated otherwise in an Order Form: (a) all Fees are stated, and are to be paid, in US Dollars; (b) all Fees are payable in advance; (c) all payments under this Agreement are non-refundable, and are without any right of set-off or cancellation; and (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of the rate of one and a half percent (1.5%) per month and the highest amount permitted by applicable Law. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon iKido’s net income. In the event that Customer is required by any Law applicable to it to withhold or deduct taxes for any payment under this Agreement, then the amounts due to iKido shall be increased by the amount necessary so that iKido receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction.
Free Tier Version. This Section 4.3 (Free Tier Version) shall not apply if you are using the Paid Subscription. Your use of the Free Tier Version is currently free. iKido reserves the right to charge a fee for certain access or usage, at its sole discretion.
Upgrades. If you are currently using the Free Tier Version and decide to upgrade to the Paid Subscription, you may contact us at info@ikido.tech to submit your upgrade request. If you upgrade to the Paid Subscription, you will be required to pay the Fees hereunder in accordance with the applicable Order Form and your use of the Software shall be subject to this Agreement from the effective date of your Paid Subscription.

5. OWNERSHIP

Software. As between the parties, iKido is, and shall be, the sole and exclusive owner of all Intellectual Property Rights in and to: (a) the Software; and (b) any and all improvements, derivative works, modifications, and/or customizations of/to the Software, regardless of inventorship or authorship. Customer shall make, and hereby irrevocably makes, all assignments necessary or reasonably requested by iKido to ensure and/or provide iKido the ownership rights set forth in the preceding sentence.
Customer Data. As between the parties, Customer is, and shall be, the sole and exclusive owner of all data and information inputted or uploaded to the Software by or on behalf of Customer (“Customer Data“). Customer hereby grants iKido an irrevocable, perpetual, worldwide, royalty free and assignable license to store the Customer Data (remotely or via cloud) and use such Customer Data for the purpose of conducting the Services (the “License“). Customer hereby represents and warrants to iKido that it is the owner of, or otherwise possesses all requisite rights and licenses to grant iKido the License.
Feedback and Insights. In the event that Customer (or any person on Customer’s behalf) provides any suggestions or similar feedback regarding the Software or any part thereof (“Feedback“), and/or to the extent iKido develops de-identified information or data regarding Customer’s use of the Software or any other de-identified business actionable insights that can help improve iKido’s products, and which do not enable identification of the Customer’s identity (“Insights“), iKido shall be entitled, in perpetuity, to use and commercially exploit such Feedback and Insights without any obligation or restriction whatsoever. Customer hereby acknowledges that the Insights shall be used by iKido for the purpose of improving iKido’s products, and that any and all intellectual property rights (under any applicable statutory or common law) which are created or derived from the Insights and all rights, title and interest therein shall be owned exclusively by iKido.
Privacy. Each party shall comply with the EU General Data Protection Regulation (“GDPR“) or other privacy laws and regulations to the extent applicable to its activities under this Agreement (the “Privacy Laws“). Customer warrants that it will provide all appropriate notices to, and obtain all required consents from, data subjects pursuant to the GDPR or other applicable laws, to enable iKido to use and otherwise process the personal data of such data subjects in order for iKido to provide and operate the Software and to otherwise perform its obligations under this Agreement. Customer shall not provide iKido with any Customer Data that includes Payment Card Industry (“PCI“) data or Personal Health Information (“PHI“) data, or any other sensitive information as defined under the Privacy Laws, without iKido’s prior express written consent.

6. CONFIDENTIALITY

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.

7. AUDIT

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.

8. WARRANTY AND DISCLAIMERS

Warranty. This section 8.1 (Warranty) shall only apply to the Paid Subscription and not to the Free Tier Version, for which no warranties are made. If the Subscription Term is for one year or more, iKido warrants to Customer that, during the Warranty Period (defined below), the Software will in all material respects perform the functions described in the Documentation (the “Warranty“). The Warranty is subject to Software: (a) having been properly accessed and used in accordance with the Documentation; and (b) not having been modified by any person other than iKido. In the event of any Warranty breach, and provided Customer has notified iKido in writing of the breach promptly after discovery thereof, iKido shall first determine whether the breach can be resolved by iKido’s support staff, and Customer shall fully cooperate with iKido in making such determination. If iKido determines that it cannot resolve the breach, iKido shall (at its sole option, and at no additional charge) use commercially reasonable efforts to provide a workaround, bug fix or patch, and Customer shall fully cooperate with iKido in such efforts. For the avoidance of doubt, any workaround, bug fix, or patch shall not re-commence the Warranty Period, and are warranted for the remainder of the Warranty Period as then in effect. In the event iKido is unable to provide a workaround, bug fix or patch within thirty (30) business days of receipt of the Warranty breach notice, then, as iKido’s sole liability, and Customer’s sole remedy, Customer shall be entitled (within fifteen (15) days) to terminate the Agreement upon written notice to iKido and receive a pro-rated refund of any pre-paid but unutilized Subscription Fees hereunder based on the remaining period of the Term.
Warranty Period. This section 8.2 (Warranty Period) shall only apply to the Paid Subscription and not to the Free Tier Version, for which no warranties are made. Unless the Order Form specifies a different warranty period, the “Warranty Period” shall be thirty (30) days commencing upon the earlier of the date of acceptance of the Software or use of the Software in a production environment.
DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT: (A) THE SOFTWARE AND ALL OTHER INFORMATION AND MATERIALS PROVIDED BY IKIDO ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET POSSESSION, NON-INFRINGEMENT, TITLE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY IKIDO AND ITS LICENSORS; AND (B) IKIDO DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, COMPLETENESS, OR QUALITY OF THE SOFTWARE, THAT USE THEREOF WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, OR REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY GOVERNMENT REGULATIONS OR STANDARDS.

9. LIMITATION OF LIABILITY

EXCEPT FOR BREACHES OF CONFIDENTIALITY UNDER SECTION ‎6 (CONFIDENTIALITY), YOUR BREACH OF THE RESTRICTIONS SET OUT IN SECTION 2.3 (RESTRICTIONS), AND/OR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR:
1. ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;
2. ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS;
3. ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL; AND/OR
4. THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
THIS SECTION 9.2 SHALL ONLY APPLY IF YOU ARE USING THE PAID SUBSCRIPTION. IF YOU ARE USING THE PAID SUBSCRIPTION (AND NOT THE FREE TIER VERSION), THEN THE MAXIMUM COMBINED AGGREGATE LIABILITY OF IKIDO AND ALL IKIDO AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT OR WITH RESPECT TO CUSTOMER’S USE OF THE SOFTWARE, SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO IKIDO UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.
THIS SECTION 9.3 SHALL ONLY APPLY IF YOU ARE USING THE FREE TIER VERSION. IF YOU ARE USING THE FREE TIER VERSION, THEN IKIDO AND ALL IKIDO AFFILIATES SHALL HAVE NO LIABILITY TO YOU ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR WITH RESPECT TO YOUR USE OF THE SOFTWARE.
THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, INCLUDING WITHOUT LIMITATION BREACH OF WARRANTY, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY, OR OTHER CONTRACT, TORT OR STATUTORY LIABILITY.

10. INDEMNIFICATION

This Section (Indemnification) shall only apply to the Paid Subscription and not to the Free Tier Version: In the event a third party makes or institutes any claim, action, or proceeding against Customer alleging that Customer’s use of the Software in accordance with this Agreement infringes such third party’s copyright or patent (an “Infringement Claim“), iKido shall:

defend Customer against the Infringement Claim;
indemnify and hold harmless Customer for any amount finally awarded against or imposed upon Customer (or otherwise agreed in settlement) under the Infringement Claim; and
reimburse Customer for any out-of-pocket legal expenses (including reasonable attorney’s fees) that Customer reasonably incurs under the Infringement Claim.

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.

11. TERM AND TERMINATION

Paid Subscription Term. This Section 11.1 (Paid Subscription Term) applies only to the Paid Subscription and not to the Free Tier Version. This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue in full force and effect for the Paid Subscription term stated in the applicable Order Form (the “Initial Paid Subscription Term“), following which this Agreement shall automatically renew for successive periods of equal length (each, a “Renewal Paid Subscription Term“, and together with the Initial Paid Subscription Term, the “Paid Subscription Term“), unless either party notifies the other party of its intent not to renew the Agreement not less than fifteen (15) days prior to the expiration of the then-current Paid Subscription Term.
Free Tier Version Term. This Section 11.2 (Free Tier Version Term) applies only to the Free Tier Version and not to the Paid Subscription. This Agreement commences on the Effective Date is effective until terminated by iKido or you (“Free Tier Version Term“). iKido, in its sole discretion, has the right to terminate this Agreement and/or your access to the Software, or any part thereof, immediately at any time and with or without cause (including, without any limitation, for a breach of this Agreement). iKido shall not be liable to you or any third party for termination of the Software, or any part thereof. If you object to any term or condition of this Agreement, or any subsequent modifications thereto, or become dissatisfied with the Software in any way, your only recourse is to immediately discontinue use of the Software. You may terminate this Agreement by cancelling your account to the Software or by writing by sending an email to info@ikido.tech.
Termination for Breach. Each party may terminate this Agreement immediately upon written notice to the other party if the other party commits a material breach under this Agreement and, if curable, fails to cure that breach within thirty (30) days after receipt of written notice specifying the material breach (except that for payment defaults, such cure period will be seven days).
Termination for Bankruptcy. Each party may terminate this Agreement upon written notice to the other party upon the occurrence of any of the following events in respect of such other Party: (a) a receiver is appointed for the other party or its property, which appointment is not dismissed within sixty (60) days; (b) the other party makes a general assignment for the benefit of its creditors; (c) the other party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (d) the other party is liquidating, dissolving or ceasing normal business operations.

12. CONSEQUENCES OF TERMINATION; SURVIVAL

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.

13. GOVERNING LAW AND DISPUTE RESOLUTION

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.

14. MISCELLANEOUS

Entire Agreement. This Agreement represents the entire agreement between iKido and Customer with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral and/or written agreements, understandings and statements between Customer and iKido with respect to such subject matter. Customer acknowledges and agrees that in entering into this Agreement it has not relied on any statement or representation (whether negligently or innocently made) not expressly set out in this Agreement, such as statements and explanations in any FAQs, summaries or explanatory guides regarding this Agreement, or other marketing material on the iKido website. To the extent of any conflict or inconsistency between these terms and conditions on the one hand, and the Order Form on the other hand, the former shall prevail (unless the Order Form expressly overrides a provision herein). The language of this Agreement is expressly agreed to be the English language. By entering into the Agreement Customer hereby irrevocably waives, to the maximum extent legally permitted, any Law (defined below) applicable to Customer requiring that the Agreement be localized to meet Customer’s language (as well as any other localization requirements), or requiring an original (non-electronic) signature or delivery or retention of non-electronic records. The Section headings in this Agreement are for convenience of reading only, and shall not to be used or relied upon for interpretive purposes.
iKido Affiliates. At iKido’s sole discretion, any iKido obligation hereunder may be performed (in whole or in part), and any iKido right or remedy may be exercised (in whole or in part), by a iKido Affiliate. Without limiting the generality of the foregoing, iKido may assign its right to invoice and receive payments under this Agreement to an iKido Affiliate.
Assignment. iKido may assign this Agreement (or any of its rights and/or obligations hereunder) without Customer’s consent, and without notice or obligation to Customer. This Agreement is personal to Customer, and Customer shall not assign (or in any other way transfer) this Agreement (or any of its obligations or rights hereunder) without iKido’s express prior written consent. Any prohibited assignment shall be null and void.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such affected provision shall be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such invalidity, illegality, or unenforceability), and shall be substituted or reformed (in respect of such jurisdiction) with a valid, legal, and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
Remedies. Except as may be expressly stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies.
Waiver. No failure or delay on the part of any party in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by Customer, emails will be acceptable; for waivers by iKido, the writing must be duly signed by an authorized representative of iKido), and shall be valid only in the specific instance in which given.
Relationship. The relationship of the parties is solely that of independent contractors. Nothing in this Agreement shall be deemed to create any employment, fiduciary, joint venture, agency or other relationship between the parties.
Notices. Customer agrees that iKido may send Customer notices by email, via Customer’s Account, by regular mail, and/or via postings on or through the functionality of the Service. Except as stated otherwise in this Agreement or required by Law applicable to Customer, Customer agrees to send all notices to iKido, to support@ikido.tech.
No Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement (such as Kido Affiliates), there shall be no third-party beneficiaries of or under this Agreement.
U.S. Government Rights. The Service is “commercial computer software” and the Documentation is “commercial computer software documentation,” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. If Customer is an agency, department, employee or other entity of the United States Government, then Customer’s access to and use of the Service shall be subject solely to the terms and conditions of this Agreement.
Export Compliance. Customer represents and warrants (on behalf of itself and its Authorized Users, if applicable) that: (a) it is not a resident of (or will use the Service in) a country that the U.S. government has embargoed for use of the Service, nor is Customer named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) its country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address provided to us. In the event Customer breaches this Section (in whole or in part), or otherwise violates any Export Control Laws (defined below) in connection with the Service, Customer agrees to indemnify and hold harmless iKido and all iKido Affiliates (including ours and their respective directors, officers, and employees) for any fines and/or penalties imposed upon iKido or an iKido Affiliate (or such persons) as a result of such breach or violation. “Export Control Laws” means all applicable export and re-export control Laws applicable to Customer and/or iKido, as well as the United States’ Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.
Force Majeure. iKido shall not be responsible for any failure to perform any obligation or provide any service hereunder because of any (a) act of God, (b) war, riot or civil commotion, (c) governmental acts or directives, strikes, work stoppage, or equipment or facilities shortages, and/or (d) other similar cause beyond iKido’s reasonable control. For the avoidance of doubt, any problems relating to the hosting of the Service shall not be deemed within iKido’s reasonable control.
Third Party Charges. Customer’s use of the Software may require and utilize an internet connection or data access. To the extent that third party service provider or carrier charges for internet or data usage are applicable, Customer shall be solely responsible and liable for those charges.