Last Updated On: September 11, 2023
1. Contents of Agreement; Interpretation
(a) Terms in the singular form will also include the plural, and vice versa, where the context so requires. Headings of sections, exhibits and appendixes, are for convenience only and shall not affect their interpretation. Unless otherwise indicated, references to a “Section” shall be to a Section of this Agreement. Unless the context otherwise requires, any reference to the “Falkor Solution” herein shall include our website.
(b) In the event of any conflict between any of the exhibits and the terms and conditions of this Agreement, the terms and conditions of this Agreement shall take precedence and prevail over the terms and conditions of the applicable exhibit unless expressly stated otherwise herein.
2. Falkor Solution and Access
2.1. Falkor Solution.Falkor will make the Falkor Solution available to You pursuant to this Agreement and the applicable Purchase Order, in accordance with the applicable Onboarding Process document. We will use commercially reasonable efforts to make the Falkor Solution available 24 hours a day, 7 days a week, except (a) during planned downtime (of which We will give advance notice); and (b) due to circumstances beyond its reasonable control (“Force Majeure Events”).2.2. Hardware.Unless specifically stated otherwise in the applicable Proposal, PO and/or Onboarding Process document, Customer shall be solely responsible for assuring that the device You intend to use in order to access and use the Services shall fully meet all technical criteria required. In the event that Falkor is not the supplier of the equipment You use for accessing and/or using the Services, Falkor makes no warranty or guarantee that the Services will work without interruption or prevention on all types of devices and/or platforms.2.3. Internet Connection.The internet connection required to use the Service, and any associated charges (e.g. mobile data expenses) incurred by Your use of the Services are Your exclusive responsibility and made solely at Your expense. Any and all payments charged by third parties in connection with Your access to the Services, are Your exclusive responsibility, made solely at Your expense and are subject to the agreements between You and such relevant third parties.
3.1. Subject to all of the terms of this Agreement, Falkor hereby grants you a non-exclusive, personal, non-transferable, non-assignable, not sub-licensable, limited and revocable right to use the Falkor Solution, and any updates, if and as shall be provided by Falkor from time to time, for Your internal business purposes only in accordance with the terms of this Agreement and subject to the limitations of use set forth herein (the “License”). You may not sub-license, redistribute, enable or allow others to use or access the Falkor Solution in any way. There are no, nor will there be, any implied licenses.3.2. Falkor shall provide to You the necessary username, identification number, password or other method used to verify an individual’s identity to access and use the Falkor Solution (“Access Credentials”), to enable Your authorized access and use of the Falkor Solution under this Agreement. You will not share Your Access Credentials with any third-party and will be responsible and liable for the acts or omissions of any person who accesses the Falkor Solution via such account. You must promptly notify Falkor if you discover or otherwise suspect any security breaches related to such account.
4. Intellectual Property Rights
The Falkor Solution is proprietary and copyrighted. Falkor shall own all intellectual property rights in the Falkor Solution and in any modifications, enhancements, updates, upgrades, new versions, additions, revisions, alterations or amendments of the Falkor Solution. The Falkor Solution is not sold to You and Falkor reserves all rights not expressly granted under this Agreement. You acknowledge and agree that the Falkor Solution, and any related know-how, methodologies, equipment, processes, updates, upgrades, modifications, enhancements and derivative works and, including without limitation all patent, copyright, trade secret, trademarks, trade names, service marks and other proprietary rights therein (“Proprietary Rights”), are and shall remain the sole and exclusive property of Falkor. You have, and shall have, no right, title or interest in and to the Falkor Solution with respect to Proprietary Rights, other than the rights expressly set forth in Section 3 (“License”). For avoidance of any doubt it is hereby clarified and agreed that this Agreement does not and will not transfer or grant any title in the Falkor Solution. If the Falkor Solution or any portion thereof are modified, merged, incorporated or combined into any software, hardware, or data, or are converted or translated into another format, they shall continue to be subject to the provisions of this Agreement and Falkor shall fully retain their ownership. You hereby undertake not to assert, contest or dispute the validity of, or contest Falkor’s ownership of any patents, copyright, trademarks, trade names, whether registered or not, or any other registration thereof, or other proprietary right of Falkor pertaining to the Falkor Solution. This Section shall survive termination of this Agreement.
5.1. By using the Falkor Solution You agree to maintain the copyright notice and any other notices and not to reproduce any trademark or other proprietary notices that appear on the Falkor Solution, on any copies and any media. You further agree not to (and not to allow or enable any third party to): (i) directly or indirectly modify, change, translate, decompile, disassemble, reverse compile or reverse engineer, make error correction or attempt to discover any source code or underlying ideas or algorithms of the Falkor Solution or make any attachments to the Falkor Solution or any portion thereof, (ii) modify, copy or create derivative works based on the Falkor Solution (including, without limitation, subject the Falkor Solution, in whole or in part, to any open source licensing terms in any way), (iii) provide, sell, give, rent, lease, lend, loan, disclose, publish, assign, sublicense, market, distribute, transfer, grant or convey other rights whatsoever in the Falkor Solution to any third party, (iv) use the Falkor Solution in violation of any applicable laws or regulations (including, without limitation, privacy and data protection laws and regulations), or allow the transfer, transmission, export, or re-export of the Falkor Solution or any portion thereof, (v) process data or information for, or on behalf of, any third party using or having any manner of access to the Falkor Solution, (vi) develop passwords other than such keys provided by Falkor or attempt to defeat such provided keys or determine how they are developed, (vii) use the Falkor Solution to create or develop or attempt to create or develop any software or product which competes or may compete with the Falkor Solution, (viii) remove or circumvent any protection or other restrictive technology mechanism of the Falkor Solution, (ix) use the Falkor Solution for purposes of providing a service bureau, including without limitation, providing third-party hosting, or third-party application integration or application service provider-type services, or any similar services, (x) disclose any part of the Falkor Solution including but not limited to the results, characteristics and capabilities of the Software’s performance benchmarks to any third party without Falkor’s express prior written consent, (xi) expose or make available to any third party (and in particular, to any vendor, supplier, other service provider or anyone on such party’s behalf), any part of the user interface of the Falkor Solution, or give access to the Falkor Solution to any such party, or (xii) otherwise use the Falkor Solution for any purpose other than those stipulated in this Agreement or in any manner not expressly authorized by this Agreement.
5.2. You agree to fully comply with applicable laws related to export controls imposed by any country, including without limitation EU export controls on dual-use items established according to Council Regulation 428/2009, the U.S. Export Administration Regulations (“EAR”), and any other applicable laws and regulations related to export control. Additionally, if You are an Entity, You warrant and represent that the Entity is not: (a) incorporated under the laws of a country or territory that is the target of country-wide or territory-wide Sanctions (as defined below); and (b) the subject of, or directly or indirectly Owned or Controlled, individually or in the aggregate by any person(s) or entity(ies) that is the subject of, any sanctions, embargoes or restrictive measures administered, enacted, or enforced by the United States, the European Union, any European Union Member State, the United Nations, the United Kingdom, Israel or any other governmental or regulatory authority in any jurisdiction (collectively, “Sanctions”). For the purpose of this section, “Owning or Controlling” an entity means: (i) holding (directly or indirectly) more than 50% of the ownership rights or voting rights in the entity; (ii) having a right (directly or indirectly) to appoint or remove a majority of the board of directors of the entity; (iii) in case that the entity is a partnership, acting as the general partner of the entity, or having the right (directly or indirectly) to appoint or remove the general partner; or (iv) otherwise having the right to exercise dominant influence over the entity. If You are an individual, you warrant and represent that you are not the subject of Sanctions. You undertake to immediately notify Falkor upon any of the representations and warranties under this section becoming inaccurate or untrue, and Falkor shall be entitled to terminate or suspend the performance under this Agreement with immediate effect.
6. Customer Data
6.1. Falkor shall not disclose Your Customer Data (as defined below) to any third parties except if:
(i) it is compelled by law;
(ii) it has been disclosed to a limited number of employees or contractors of Falkor or any of its affiliates as required to operate, develop or improve the services or to perform its obligation hereunder; or
(iii) it has been agreed upon by the parties in writing. The term “Customer Data” means information, data, and other content concerning the activities of an end-user in one of Your platforms and is captured in connection with or as part of the Falkor Solution.
6.2. Notwithstanding the aforementioned, Falkor may process certain Customer Data which has been anonymized and processed as aggregated data in connection with the following purposes: (i) to improve Falkor’s customer service experience and present content from the Falkor Solution in an effective manner; (ii) to properly administer the Falkor Solution and facilitate internal operations, including troubleshooting, data analysis, testing, research, statistical and survey purposes; and (iii) as part of Falkor’s constant efforts to keep the Falkor Solution safe and secure.
6.3. Transfer of Data.
(a) Subject to the terms and conditions of this Agreement, You may Export certain data (including specific Customer Data) from the Falkor Solution. You acknowledge and agree that You shall be responsible for ensuring that any such Exported data is sent to destinations authorized by You.
(b) “Export” shall mean store, duplicate, record, or reproduce information in any physical or electronic form, including by writing it down by hand, printing copies, taking screenshots, taking photographs, copying to removable media, or any other method of extracting, storing, or reproducing.
(c) You shall have the sole and complete liability to any data that has been Exported from the Falkor Solution, and Falkor shall not be liable to any such data that has been Exported from the Falkor Solution.
(d) You shall be solely and exclusively responsible to take all the necessary measures for determining the proper legal basis for using the Falkor Solution, including, if deemed necessary, obtaining any consent that You are legally obliged to obtain from Your End-Users and any other third parties.
6.4. The Information Generated through the Falkor Solution.
(a) You agree to comply with all the regulatory and applicable laws with respect to the use of the Falkor Solution (including, without limitation, privacy and data protection laws and regulations), including with respect to the gathering of information through the Falkor Solution (including with respect to the type of information that would be gathered and with respect to obtaining any required consent from any applicable End User and/or third party for such gathering and use), and Falkor shall not bear any liability and/or responsibility in such respect.
(b) You shall be solely responsible for all information generated using the Falkor Solution, including with respect to its accuracy, quantity, quality and legality. Neither Falkor nor any third party on its behalf shall be responsible for such information in any manner.
6.5. Third-party services.
(a) The Falkor Solution may enable access to third-party services, including third-party plug-ins, websites, applications, or APIs (“the “Third Party Services”).
(c) You acknowledge and agree that Falkor is not responsible for any Third Party Service, and shall have no liability or responsibility whatsoever to you or any third party regarding any access to and/or use of any Third Party Service or any content therein, and/or the non-compliance of such Third Party Services with applicable laws and regulations (including, without limitation, privacy and data protection laws and regulations).
7. Updates; Limitations
7.1. At any point in time, some of the functionality available within the Falkor Solution may be changed, updated, enhanced or removed with the intention of improving the overall value created for users of the product and You acknowledge that these changes may be made.
7.2. Falkor provides a range of product features and has been built and tested to work with the most common types of databases. There may be some elements of an individual databases that cannot be ingested successfully to Falkor’s database. You are recommended to review a detailed product overview document for more information and clarification of the product features available with Your subscription to the Falkor Solution.
8. Term and Termination
8.2. Notwithstanding the above, either party may terminate this Agreement immediately via mail or email notice if the other party:
(i) materially breaches the terms of the this Agreement which has not been remedied within 7 days as of a receipt of a notice with respect thereto;
(ii) subject to applicable law, upon liquidation, commencement of dissolution proceedings, disposal of assets, failure or inability of the other party to continue its business activities, assignment for the benefit of its creditors, or upon becoming the subject of a voluntary or involuntary bankruptcy or similar proceeding.
8.3. Without derogating from the above, Falkor may terminate this Agreement immediately if:
(i) You make an unauthorized use of the Falkor Solution, or of any part, portion or module thereof, in breach of Section 3 (“License”), Section 4 (“Intellectual Property Rights”), Section 5 (“Restrictions”), or of Section 11 (“Confidentiality”); or
(ii) You attempt to or in fact transfer or assign any of Your rights, liabilities or obligations under this Agreement contrary to the provisions of this Agreement;
(iii) You fail to pay any amount when due hereunder, and such failure continues more than seven days after Falkor's delivery of written notice thereof;
(iv) the provision of the Falkor Solution to You is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason. Upon termination as set forth above, all of Your rights under this Agreement shall immediately terminate, and each party shall promptly deliver to the other or destroy, as applicable, all copies of Confidential Information and the Falkor Solution.
8.4. Except as otherwise expressly provided herein, the terms of Sections 4 (“Intellectual Property Rights”), 5 (“Restrictions”), 6 (“Customer Data”), 7 (“Updates; Limitations”), and any provision which by its nature survives the termination of this Agreement, shall survive termination of this Agreement.
9.1. Indemnification by Falkor.
(a) Falkor shall indemnify, defend, and hold harmless Customer, its affiliates, and their respective shareholders, directors, officers, employees and contractors from and against any and all Losses (as defined below) incurred by Customer arising from any third-party claim, suit, action, or proceeding alleging (i) that the Falkor Solution, or any use thereof in accordance with this Agreement, infringes or misappropriates such third-party's intellectual property rights; or (ii) materially breach of this Agreement by Falkor, provided that (1) Customer promptly gives written notice of any claim to Falkor; (2) at Falkor’s expense, Customer provides any assistance which Falkor may reasonably request for the defense of the claim; and (3) Falkor has the right to control of the defense or settlement of the claim. “Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance companies.
(b) Notwithstanding Subsection (a) above, Falkor shall have no responsibility or liability for any claim to the extent resulting from or arising out of (i) the use of the Falkor Solution or Services not in compliance with this Agreement or applicable law, (ii) the combination of the Falkor Solution with any third-party solution or services not provided by Falkor, (iii) the modification of Falkor Solution or any part thereof by any party other than Falkor, (iv) failure to use corrections or enhancements made available by Falkor as a cure, (v) errors caused due to malfunction of the operating environment, or causes external to the Falkor Solution, (vi) use of a version of the Falkor Solution that is older than the latest release, (vii) the correction of errors and/or corrupted or lost data solely as a result of Customer’s or its authorized users’ negligence or inappropriate use of the Falkor Solution. The indemnification rights granted to Customer hereunder with respect to third party claims shall be Customer' sole remedy, and Customer will not be entitled to any other remedy.
9.2. Indemnification by Customer.
Customer agrees to indemnify and hold harmless Falkor (and its affiliates, officers, directors and employees) from and against any and all Losses incurred by Falkor in connection with any third-party claim, suit, action, or proceeding arising from: (i) Customer Data, including any processing of Customer Data by or on behalf of Falkor in accordance with this Agreement; (ii) allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants, or obligations under this Agreement; (iii) negligence or more culpable act or omission (including recklessness or wilful misconduct) by Customer, any authorized user, or any third party on behalf of Customer or any authorized user, in connection with this Agreement; (iv) Customer Data that has been Exported from the Falkor Solution; or (v) any damage caused to a third party due to the use of Third Party Services by the Customer, or (vi) any use or distribution of the Falkor Solution in violation of this Agreement or applicable law or regulations.
10. Limited Warranty, Disclaimer and Limitation of Liability
10.1. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND THE APPLICABLE PURCHASE ORDER, YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE FALKOR SOLUTION IS PROVIDED ON AN “AS IS” BASIS. NO EXPRESS OR IMPLIED WARRANTY IS MADE WITH RESPECT TO THE FALKOR SOLUTION, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IN PARTICULAR FALKOR DOES NOT WARRANT THAT THE FALKOR SOLUTION SHALL OPERATE ERROR-FREE.
10.2. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL INCIDENTAL DAMAGES OR LOSSES INCLUDING, WITHOUT LIMITATIONS, ANY LOSS OF REVENUES AND/OR INCOME (INCLUDING INSURANCE PREMIUMS); ANY LOSS OF PROFIT; ANY LOSS OF DATA OR FILES AND COSTS OF RESTORING LOST OR CORRUPT DATA OR FILES; LOSS OF GOODWILL OR REPUTATION; LOSS OF BUSINESS OR COMMERCIAL OPPORTUNITIES OR ANY LOSS OF ANTICIPATED SAVINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3. WITHOUT DEROGATING FROM ANY OF THE ABOVE, EITHER PARTY MAXIMUM AGGREGATED LIABILITY UNDER THIS AGREEMENT IS LIMITED TO DIRECT DAMAGES ONLY AND SHALL NOT, IN ANY EVENT, EXCEED THE AMOUNT WHICH IS THE FEE PAID BY YOU TO FALKOR DURING THE PRECEDING 12 MONTHS UNDER THE APPLICABLE PURCHASE ORDER.
11.1. From time to time during the Term, either party (the “Disclosing Party”) may disclose or make available to the other party (the “Receiving Party”) information about its business affairs, products, confidential intellectual property, trade secrets, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is:
(a) in the public domain; (b) known to the Receiving Party at the time of disclosure; (c) rightfully obtained by the Receiving Party on a non-confidential basis from a third-party was not under any obligation restricting transmittal of such information; or (d) independently developed by the Receiving Party.
11.2. The Receiving Party shall not use the Disclosing Party's Confidential Information other than for exercising its rights and obligations under this Agreement, and shall not disclose the Disclosing Party's Confidential Information to any person or entity, except to the Receiving Party's employees who have a need to know the Confidential Information for the Receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party; or (ii) to establish a party's rights under this Agreement.
11.3. On the expiration or termination of the Agreement, the Receiving Party shall promptly return to the Disclosing Party all copies of the Disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed.
11.4. Each party's obligations of non-disclosure and usage restrictions with regard to Confidential Information are effective as of the Effective Date and will expire 7 years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
11.5. You expressly acknowledge that the Falkor Solution is confidential and proprietary to Falkor, and agree to maintain the Falkor Solution and information regarding its design and implementation as confidential information, using at a minimum the same degree of care, but not less than reasonable degree of care, as is used for its own trade secrets, and not to disclose it to any third party without Falkor’s prior, written, explicit authorization, as applicable, other than as explicitly provided herein. You will not use the Falkor Solution for any other purpose not expressly permitted by this Agreement.
11.6. You may not disclose the terms of this Agreement to any third party, except as required by law or by auditors.
11.7. You agree to be a reference client and to be mentioned as Falkor’s client, and to issue joint press release for choosing the Falkor Solution.
12.3. Exercise of Rights; Severability.No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
12.4. Assignment.Neither the Agreement nor the rights granted hereunder may be assigned by You without the prior, written consent of Falkor; any attempt to do so shall be null and void. Falkor may assign this Agreement in whole or in part, provided that Your rights and obligations hereunder shall not be derogated. This Agreement will be binding on any successor and assign of each party, including without limitation, a surviving entity in a merger or acquisition to which any of the parties hereto is a party.
12.5. Governing Law.This Agreement shall be governed by and construed in accordance with the laws of the State of Israel, without giving effect to any choice or conflict of law provision. The competent courts in Tel Aviv, Israel shall have sole and exclusive jurisdiction regarding any dispute or claim arising hereunder.