THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERN YOUR USE OF GAZPACHO, INCLUDING ONLINE AND OFFLINE COMPONENTS (COLLECTIVELY, THE "SOFTWARE"). BY USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
As used herein: "Agreement" means these terms and conditions; "Content" means the audio and visual information, forms, documents, cartography, images, data and services contained or made available to you in the course of using the Software; "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; "Limits of Use" means the limitations on your use of the Software as stated at the time of purchase, including but not limited to maximum GAZPACHO website data storage, the maximum number of mobile devices supported by your GAZPACHO website, and the period of service that you have paid for; "NETALIZER" means Netalizer Ltd., an Israeli corporation, having its principal place of business at 20 Kibbutz Galuyot St., Tel Aviv, Israel; "Software" means the GAZPACHO websites and the GAZPACHO mobile client applications; "Technology" means all of Netalizerís proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, forms, data, cartography, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Netalizer in providing the Software and Content; "Your Data" means any data, forms, images, videos, audio files, information or material submitted or created by you in the course of using the Software.
License Grant & Restrictions
NETALIZER hereby grants you a non-exclusive, non-transferable, worldwide right to use the Software, solely for your own personal or internal business purposes, subject to the terms and conditions of this Agreement. Your use of the Software shall be within the Limits of Use purchased from Netalizer. All rights not expressly granted to you are reserved by Netalizer and its licensors. You may not use the Software if you are a direct competitor of Netalizer, except with Netalizerís prior written consent. In addition, you may not use the Software for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software or the Content in any way; (ii) modify or produce derivative works based upon the Software or the Content; (iii) create Internet "links" to the Software or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Software in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Software, or (c) copy any ideas, features, functions or graphics of the Software. You may use the Software only for your personal or internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or that violates third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Software or the data contained therein; or (v) attempt to
You are responsible for your use of the Software within the Limits of Use and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Software, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Netalizer immediately of any unauthorized use of the Software or any other known or suspected breach of security; (ii) report to Netalizer immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you; and (iii) not impersonate another user of the Software or provide false identity information to gain access to or use the Software. From time to time, Netalizer may automatically check the version of the Software installed on your mobile device(s) and computer(s) and, if applicable, provide automatic download and installation of updates to the Software. You are responsible for enabling such automatic checking, downloading and installation of updates.
NETALIZER makes no claim of ownership in Your Data. You, not NETALIZER, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use Your Data, and NETALIZER shall not be responsible or liable for your deletion, destruction, damage, loss or failure to store Your Data. In the event this Agreement expires or is terminated (other than by reason of your breach), NETALIZER will maintain Your Data online for 90 days and make it available to you for export to your own systems.
Intellectual Property Ownership
NETALIZER alone (and its licensors, where applicable) shall own all rights, title and interest, including all related Intellectual Property Rights, in and to the Technology, the Content and the Software and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you relating to the Software. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Software, the Content, the Technology or any Intellectual Property Rights owned by NETALIZER. The product names associated with the Software are trademarks of NETALIZER or third parties, and no right or license is granted to use them. Portions of the Software are licensed, in whole or in part, by third parties under the Apache License (http://www.apache.org). You are not permitted, directly or indirectly, to: (a) modify, translate, create derivative works of the Software; (b) reverse assemble, decompile, reverse engineer or otherwise attempt to derive source code or object code or the underlying ideas, algorithms, structure or organization of the Software; (c) reproduce or copy the Software in whole or in part, except as expressly permitted in writing by NETALIZER.
Term and Termination
The Term of this Agreement shall start with your use of the Software and shall expire as specified in the Limits of Use. In the event this Agreement expires or is terminated (other than by reason of your breach), NETALIZER will maintain Your Data online for 90 days and make it available to you for export to your own systems. You agree and acknowledge that NETALIZER has no obligation to retain Your Data, and may delete Your Data 30 days after expiration or termination. Any breach of your payment obligations or unauthorized use of Software or Content shall be deemed a material breach of this Agreement. GAZPACHO may terminate your use of the Software, at its sole discretion, if you breach or otherwise fail to comply with this Agreement. You agree and acknowledge that NETALIZER has no obligation to retain Your Data, and may delete Your Data, if you have breached this Agreement.
Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. NETALIZER represents and warrants that it will provide the Software in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Software will perform substantially in accordance with the online user guide documentation for the Software under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Software and that your billing information is correct.
You shall indemnify and hold NETALIZER, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of Your Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim against NETALIZER arising from the breach by you of this Agreement, provided in any such case that NETALIZER (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release NETALIZER of all liability and such settlement does not affect NETALIZER'S business or Software); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
Disclaimer of Warranties
NETALIZER AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SOFTWARE OR CONTENT. NETALIZER AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY DATA COLLECTED BY YOU THROUGH THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SOFTWARE OR THE SERVERS THAT SUPPORT THE SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SOFTWARE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY NETALIZER AND ITS LICENSORS. NETALIZER RESERVES THE RIGHT TO TEMPORARILY DISABLE OR PERMANENTLY DISCONTINUE ANY AND ALL FUNCTIONALITY OF THE SOFTWARE WITHOUT NOTICE AND WITH NO LIABILITY TO YOU.
Communication Costs and Delays
CERTAIN FUNCTIONALITY OF THE SOFTWARE REQUIRES MOBILE COMMUNICATIONS ACCESS, AND CARRIER RATES FOR PHONE, DATA AND TEXT MESSAGING MAY APPLY. THE SOFTWARE MAY BE SUBJECT TO LIMITATIONS, AVAILABILITY, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF MOBILE COMMUNICATIONS. NETALIZER IS NOT RESPONSIBLE FOR ANY DAMAGES RESULTING FROM SUCH PROBLEMS.
THE SOFTWARE MAY INCLUDE GLOBAL POSITIONING SYSTEM (GPS) DATA AND CARTOGRAPHIC DATA. YOU UNDERSTAND AND ACKNOWLEDGE THAT GPS LOCATION DATA MAY NOT BE ACCURATE, AND THAT THE CARTOGRAPHIC DATA MAY NOT BE ACCURATE OR COMPLETE OR UP-TO-DATE. THE SOFTWARE SHOULD NEVER BE USED FOR NAVIGATION.
Limitation of Liability
IN NO EVENT SHALL NETALIZER'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL NETALIZER AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SOFTWARE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SOFTWARE, OR FOR ANY CONTENT ASSOCIATED WITH THE SOFTWARE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, IN THE SOFTWARE OR CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
NETALIZER may give notice by means of a general notice through the Software, electronic mail to your e-mail address on record in NETALIZER'S account information, or by written communication sent by first class mail or pre-paid post to your address on record in NETALIZER'S account information. Such notice shall be deemed to have been given upon the expiration of 72 hours after mailing or posting (if sent by first class mail or pre-paid post) or 24 hours after sending (if sent by email). You may give notice to NETALIZER (such notice shall be deemed given when received by NETALIZER) at any time by a letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to NETALIZER at the following address: Netalizer Ltd.., 20 Kibbutz Galuyot St, Tel Aviv, Israel, Attention: Chief Operating Officer.
This Agreement may not be assigned by you without the prior written approval of NETALIZER but may be assigned without your consent by NETALIZER to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
This Agreement shall be governed by law of State of Israel, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Software shall be subject to the exclusive jurisdiction of the courts located in Tel Aviv, Israel. No text or information set forth on any other purchase order, preprinted form or document shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and NETALIZER as a result of this agreement or use of the Software. The failure of NETALIZER to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by NETALIZER in writing. This Agreement may be modified by NETALIZER from time to time at its sole discretion. The most current version of this Agreement may be found at http://gazpacho.netalizer.com/terms-of-use.html This Agreement comprises the entire agreement between you and GAZPACHO and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
Questions or Additional Information
If you have questions regarding this Agreement or wish to obtain additional information, please contact NETALIZER at the following address: Netalizer Ltd.., 20 Kibbutz Galuyot St, Tel Aviv, Israel, Attention: Chief Operating Officer.