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Cellxpert License Agreement

This Affiliate Software Agreement (the “Agreement”) covers the usage of our system with our clients.

WHEREAS, CELLXPERT has developed an Affiliate system software (the “Software”), and represents that it is the sole and exclusive owner of, and has all the rights, title and interest in, it; and

WHEREAS, Client has requested CELLXPERT to modify the Software in certain specified respects so as to reflect Client’s particular manner of conducting business; and

WHEREAS, the Parties desire that CELLXPERT will provide Client with the Software as specified herein, subject to the terms and conditions hereof.

NOW, THEREFORE, in consideration of the foregoing, and in reliance on the mutual agreements contained herein, the Parties agree as follows:

The Preamble, the Appendixes and the Data Processing Addendum of this Agreement constitute an integral part of the Agreement. The license Agreement and the Addendum are to be viewed and interpreted as a whole, and Client understands to unequivocally submit to them. The Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.

 

  1. The License
    1. CELLXPERT grants Client a limited non-sub licensable, non-exclusive, revocable, non-transferable right and license to use its Software, according to the terms and conditions set forth in this Agreement. All other rights and licenses not specifically granted to Client herein are reserved exclusively to CELLXPERT.
    2. Under the System Usage License, the Client shall have limited access to the System under the Client’s label. More specifications of the System Usage License are described below, in this agreement.
    3. It should be emphasized that the relationship between the Parties is that of licensor/licensee only and nothing contained in this Agreement shall be construed to constitute any arrangement as a partnership, joint venture, employment or agent of the other. Neither Party shall have the authority to make any statements, representations or commitments of any kind, or take any action which shall be binding on the other Party, except as may be expressly Provided for herein or authorized in writing by CELLEXPERT.
  2. General
    1. Client’s will use CELLXPERT’s Software for the purpose of integrating the media performance records and commercial transaction data of his website (the “Website”) and will allow compensation plan management for the website with external affiliates.
    2. Client will be responsible for all aspects of affiliate management using CELLXPERT’s software.
    3. Client will indemnify CELLXPERT for any claim made against it as a result of Client’s misconduct while using the Software. For the avoidance of doubt, this also includes the actions of Client’s affiliates.
  3. Restrictions and Conditions of Use
    1. Client may not connect to or use the Software in any way that is not expressly permitted by this Agreement.
    2. Client may not: (a) remove any proprietary notices from the software provided by CELLXPERT ; (b) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the software; (c) sell, assign, rent, lease, act as a service bureau, or grant rights in the software, including, without limitation, through sublicense, to any other person or entity without the prior written consent of CELLXPERT; or (d) make any false, misleading or deceptive statement or representation regarding CELLXPERT, and/or the software.
    3. Without limiting the foregoing, you agree that you will not: (i) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks, upon the CELLXPERT software (or any servers, systems or networks connected to CELLXPERTs’ software or otherwise attempt to obstruct, disrupt or interfere with the operation of CELLXPERTs’ software or any other person’s or entity’s use of the software (or any servers, systems or networks connected to the software); (ii) attempt to gain unauthorized access to the software, accounts registered to other users, or any servers, systems or networks connected to the software (iii) use the software for any commercial purpose or the benefit of any third party, or charge any person, or receive any compensation for, the use of the software, unless specifically authorized to do so pursuant to the features of the software or in a separate written agreement with CELLXPERT; (iv) use the software to (A) develop, generate, transmit or store information that is defamatory, harmful, abusive, obscene or hateful; or (B) perform any unsolicited commercial communication not permitted by applicable law; or (v) engage in any activity that (A) constitutes harassment or a violation of privacy or threatens other people or groups of people; (B) is harmful to children in any manner; (C) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (D) violates any applicable law, ordinance, rule, regulation or treaty.
    4. Client obligates to remove all violating material, if any, immediately from the system, once a request is made by CELLXPERT. CELLXPERT reserves the right to remove any infringing material or link to a service if required by law or following a decision by a court or any other regulatory entity.
    5. Client will not (a) obtain or attempt to obtain any information from the software, including without limitation email addresses or phone numbers of other account holders or other software data; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the software, whether through the use of a network analyzer, packet sniffer or other devices; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the software.
    6. Client acknowledge and agree that it is solely responsible for (and that CELLXPERT has no responsibility or liability to Client or to any third party for) any breach of Clients’ obligations, under this Agreement and for the consequences (including any loss or damage which CELLXPERT may suffer) of any such breach.
  4. Term and Termination of the Engagement
    1. The Agreement term is as agreed in the IO, starting once the “End of Integration Mode Message” is sent by CELLXPERT, announcing the beginning of the “commercial use” of the software, (“The Initial Term”).
    2. “End of Integration Mode Message” for this clause means: A message from CELLXPERT to Client, announcing the beginning of the commercial use of the software.
    3. “Commercial Use” for this clause means: The moment where the Software is used to track commercial traffic (Including but not limited to: Affiliate traffic, internal media campaigns etc).
    4. The Agreement will be renewed automatically, on a monthly basis.
    5. Each of the parties may terminate the Agreement with 30 days prior written notice to the other party.
    6. Without derogating from clauses 4.1 and 4.2 above, This Agreement may be terminated by either Party with immediate effect by written notice, if one of the following events occur: (i) a Party breaches any term of this Agreement which, in the case of a breach capable of remedy, is not remedied by the breaching Party within 20 (twenty) days of a written notice from the other Party specifying the breach and requiring its remedy; or (ii) a Party is bankrupt or is wound up, dissolved or liquidated or has its existence terminated or has declared any such intent.
  5. Consideration- AS SET AND AGREED IN THE SIGNED IO.
  6. Support, Modification and Additional Development (SLA) 
    1. As long as this Agreement is in effect, CELLXPERT will provide support by email and telephone to a dedicated support representatives assigned by Client and whose details are provide in the signed IO.
    2. CELLXPERT will update Client’s with its support manager contact details; For avoidance of doubt: Client will be responsible to update the contact details of the Technical Support representative and the General Support representative, to whom only CELLXPERT will provide the support and maintenance services, as specified on this clause.
    3. CELLXPERT will make her best effort to give Client the best support and handle its queries, if any, according to the following time-table:
      1. Urgent Queries – regarding Malfunctions or critical issues – will be handled up to 24 (Twenty Four) hours by phone request.
      2. Other Queries – CELLXPERT will Provide Client’s with up to 5 (Five) hours per month of standard support, which includes guidance and minor feature development. Response time will be up to 4 (Four) business days from the date that CELLXPERT has received the query. Any additional hour above this amount of hours, will be billed according to the additional development hourly rate, at €150 (One Hundred and Fifty Euros) / Hour.
      3. Bug fixes and Critical issues – Will not be included towards Client’s
        5 (Five) hours of monthly support and CELLXPERT will not bill Client for them.
    4. QOS – CELLXPERT will make reasonable commercial efforts to ensure that the Software is running uninterrupted throughout the duration of this Agreement, excluding reasonable downtime periods required for maintenance, upgrades and security modifications as performed by CELLXPERT and its data center and hosting providers.
    5. CELLXPERT will notify Client prior to any scheduled maintenance, security or upgrade work performed by CELLXPERT or its network, hosting or storage providers.
  7. Collected Data –
    1. The data collected by the Software regarding the website will be the property and ownership of Client and CELLXPERT will use this data only in order to provide the Software or other products to Client.
  8. Privacy and Confidentiality-
    1. CELLXPERT uses commercially reasonable efforts to maintain the security, integrity and confidentiality of any and all confidential and/or proprietary information, whether in electronic form or otherwise, and to prevent the direct or indirect, loss, theft, unauthorized, unintended, or accidental access to and dissemination, duplication, distribution, or publication of such confidential and/or proprietary information.
    2. Regarding information sent by a Party of this Agreement to the other Party or exchanged between the Parties, including but not limited to any content, emails, correspondences, processes, practices, audits, products, ideas, trade secrets, developments, business and intellectual property rights, either in writing, orally or otherwise. Each Party shall:
      1. keep the contents of this Agreement confidential
      2. Keep the other Party’s Confidential Information confidential;
      3. Not use the other Party’s Confidential Information except for the purposes of executing this Agreement, without the prior written consent of the other Party; shall not disclose the other Party’s Confidential Information to any third party except to those of its employees, suppliers, contractors and advisors who need to know the information solely for the purposes of this Agreement and shall procure that each such third party is aware of and complies with these obligations as to confidentiality.
      4. Keep confidential all information (written or oral) concerning the business and affairs of the Parties that the receiving Party shall have obtained or received or be exposed to as a result of the discussions leading up to or the entering into or performance of the Agreement.  For the avoidance of doubt, confidential information includes but not limited to, pricing, integration structure, trade secrets and other intellectual property;
      5. not to disclose any of the disclosing Party’s confidential information or the nature of the disclosing Party’s business to any third party without obtaining the disclosing Party’s prior written consent; and
      6. Use the disclosing Party’s confidential information solely in connection with the provision of Services and not for the receiving Party’s own benefit or the benefit of any third party.
    3. The above provisions of this section shall not apply to any Confidential Information that the receiving Party can show (and to the relevant extent):
      1. Is in the public domain other than as a result of a breach of this Agreement or any other obligations of confidentiality;
      2. Is required to be disclosed under operation of  law, by court order or by any regulatory body of competent jurisdiction (but then only to the extent and for the purposes required); or
      3. Was developed independently of and without reference to any Confidential Information disclosed by the disclosing Party.
    4. Within ten (10) days after the termination or expiration of this Agreement, each Party shall return to the other all proprietary or Confidential Information of the other Party (and any copies thereof) in the party’s possession or, with the approval of the other Party, destroy all such proprietary or Confidential Information
    5. The above confidentiality obligation shall survive any termination of this Agreement for a period of 36 months.
  9. Intellectual Property Rights –
    1. Client declares that it has no intellectual property rights, of any sort, to the Software and the additional solutions provided to it by CELLXPERT.
    2. All materials, including, but not limited to, software, programs, source code and object code, comments to the source or object code, specifications, documents, abstracts and summaries thereof, developed by CELLXPERT in connection with the Software and the additional solutions provided to it, either individually or to the request or together with Client, shall vest solely and exclusively with CELLXPERT.
    3. Client shall NOT, and shall not provide or allow any third party to (a) decompile, disassemble, separate component parts, or in any way attempt to reverse engineer, reconstruct or discover any Source Code or algorithms of the Software by any means whatsoever; (b) modify or create any derivative works from the Software or any part thereof; (c) sell, sublicense, lease, rent, loan, assign, convey or otherwise transfer the Software or any component thereof not According to this Agreement;  (d) otherwise copy or use the Software for any purpose or in any manner not expressly permitted in this Agreement (e) develop any other software based on the functionalities or capabilities of the Software.
    4. Client shall NOT remove any product identification, trademark, copyright, confidentiality, proprietary or other notice contained on or within the software.
  10. Disclaimer Of Warranty – CELLXPERT MAKES NO WARRANTIES HEREUNDER, AND CELLXPERT EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING IT IS HEREBY EMPHASISED THAT THE SYSTEM OPERATES ON “AS-IS”, “AS-AVAILABLE” BASIS, AND MAY NOT (A) SATISFY ALL OF CLIENT’S REQUIREMENTS; (B) BE UNINTERRUPTED OR ERROR-FREE.
  11. Limitation of Liability –
    1. Nothing in this Agreement shall exclude or restrict liability for fraud, or death or personal injury resulting from negligence of Party or their servants, agents or employees. The Parties undertake that: (i) neither Party shall be liable to the other for any indirect, consequential or special damages or loss of profits or any other pure economic loss arising out of or in connection with this Agreement; and (ii) each Party’s liability to the other whether in contract, tort or otherwise (including negligence) shall be limited to a cumulative sum of €100,000 (One Hundred Thousand Euros) for all causes arising during the term of this Agreement.
    2. CELLXPERT SHALL HAVE NO LIABILITY WITH RESPECT TO THE SYSTEM OR ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE, FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF CELLXPERT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, CELLXPERT‘S LIABILITY UNDER THIS AGREEMENT FOR ANY REASON WILL BE LIMITED TO THE AMOUNTS PAID TO CELLXPERT UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO ANY CLAIM FOR DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS AND OTHER TORTS.
    3. Client agrees to indemnify, defend and hold harmless CELLXPERT and any of CELLXPERT‘s Related Entities and the directors, officers, employees, subcontractors and agents thereof (collectively, the “Indemnified Party“), with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon or arises out of: (a) Client‘ breach of any representation, warranty, obligation or covenant under this Agreement; (b) Client‘s Group’s gross negligence or willful misconduct;
  12. Dispute Resolution; Jurisdiction and Governing Law –
    1. This Agreement shall be governed by the laws of Israel and any disputes between the Parties arising under or in connection with this Agreement shall be resolved in the courts of Tel Aviv, Israel.
    2. The Parties will attempt to resolve dispute between them arising out of or in connection with this Agreement in good faith. If the Parties fail to resolve such dispute within 3(three) weeks, either Party may submit the dispute before a single arbitrator, chosen by the Head of the Tel Aviv district of the Israeli Bar association, whose ruling will be final and binding.
  13. General
    1. Notifications – Any notification under this Agreement shall be in writing and shall be deemed to have been duly given for all purposes (a) when received or 7 (seven) days after it is mailed by prepaid registered mail to the addresses as set on the Preamble of this agreement; (b) upon the transmittal thereof by facsimile or via email used between the parties; or (c) upon the manual delivery thereof, to such addresses listed above or other addresses of which notice as aforesaid is actually received.
    2. VAT –All figures in this agreement are exclusive of VAT, and will bear application of value added tax upon payment if required by law and according to the VAT rate set forth on the payment day.
    3. Amendments– This Agreement may be altered, amended or repealed only by writing signed by the Parties. Any written amendments or changes to this Agreement created by a separate document are automatically attached as an amendment.
    4. Assignment and transfer of rights – Neither Party shall have the right to assign, transfer, pledge or otherwise in any way, any of his obligations or rights under this Agreement to any third party without the express prior written consent of the other Party.
    5. Entire Agreement– This Agreement constitutes the whole and entire agreement between the Parties with respect to the subject matter of the Agreement. This Agreement replaces and supersedes all prior written and oral agreements by and among the Parties. Any new business between the Parties will require separate agreements, mutually negotiated and agreed to on a case-by-case basis.
    6. Benefit– This Agreement shall be binding and inure to the benefit of the Parties and the heirs, personal representatives, and permitted successors and assigns.
    7. Force Majeure – If performance by any Party of any Service or obligation under this Agreement is prevented, restricted, delayed or interfered with by reason of, inter alia, labor disputes, strikes, acts of God, fire, floods, lightning, earthquakes, severe weather, utility or communication failures, failures of any bank or network, computer associated outages or delay in receiving electronic data, war, civil commotion, or any law, order or regulation, etc. having legal effect, then that Party shall be excused from its performance hereunder to the extent of the prevention, restriction, delay or interference.
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