Terms And Conditions

1.     GENERAL

1.1.   These T&C constitutes a legally binding agreement between SeismicAI LTD. (the “Company”) and End-User, with respect to any usage of the Products.

1.2.   These T&C should be read together with the terms of the End-User Contract, and shall serve as an addition to such terms.

1.3.   By entering into an End-User Contract and using the Products, End-User accepts these T&C in full and agrees to be bound by the provisions of these T&C. If End-User does not agree to all of the terms in these T&C, then such End-User should not use or immediately cease using the Products.

2.     LICENSE; LIMITED RIGHT TO USE

2.1.   Company hereby grants End-User, and End-User hereby accepts, a limited, revocable, non-transferable, non-licensable and non-exclusive right and license to use the Products for its own internal needs, all during the Term and in accordance with these T&C and the End-User Contract.

2.2.   End-User acknowledges that Company will retain title to the Products. Other than the limited rights to use set forth in Section 2.1 above, no other right or interest whatsoever is hereby transferred or granted to End-User with respect to the Products, and any other use of the Products is strictly prohibited. For clarity, the Products are not for sale, they are not and will not be sold under these T&C and\or the End-User Contract, and nothing herein or in the End-User Contract is intended to or shall be considered as a transfer of any proprietary right related to the Products.

2.3.   Company reserves the right to change, modify or discontinue the distribution of any Products at any time. Company shall provide new versions or upgrades of the Products as they are released from time to time (including, without limitation, any enhancements that alter the functionality of the Products or new functions added thereto), all of which may be developed, if at all, in Company’s sole discretion.

3.     RESTRICTIONS AND END–USER‘S OBLIGATIONS

3.1.   Any use of the Products is permitted solely subject to and in accordance with the provisions of these T&C, the End-User Contract and the Documentation.

3.2.   Company shall provide and install (directly or through a third-party) the relevant Products in End-User’s facilities within a reasonable agreed timeframe, provided that End-User has notified Company in writing and ensured that its facilities are available, suitable and equipped to receive the Products. The installation of the Products by Company shall not include configurations or integration of the Products with End-User’s internal systems, devices, infrastructures, information, etc.

3.3.   End-User shall bear full responsibility, at its own cost and expenses, for ensuring that at all times during the Term, an appropriate and suitable environment and infrastructure, as required for the installation and proper operation of the Products (including in accordance with Company’s instructions and Documentation), will be available and operated in its facilities.

3.4.   End-User shall obtain and maintain, at its own cost and expenses, any equipment, hardware, software or ancillary services required to access and use the Products, and for any fees, taxes and other costs.

3.5.   End-User hereby undertakes that: (i) it shall ensure the safekeeping of the Products and protect the Products installed in its facilities from any harm, damage, improper use, loss and\or theft, and shall be liable towards Company upon the occurrence of any of the above, however arising and\or resulting; and (ii) utilize the Products for their intended purpose only, with due care and in accordance with Company’s instructions and Documentation. Nothing in these T&C shall restrict or constrain Company from performing any action necessary to mitigate any loss, damage etc. which it may suffer or incur due to any of the aforementioned circumstances.

3.6.   If any damage or impairment is caused to the Products, or any part thereof, resulting from any act or omission of End-User or anyone acting on its behalf (including any third party), End-User shall promptly notify Company in writing and adhere to Company’s instructions for the repair or replacement of the Products, at End-User’s expense.

3.7.   Any required ancillary or additional equipment (whether required by any applicable regulation, contract, or other stipulation or standard) shall be procured directly by End-User and shall not be provided by Company (e.g., anti-corrosion box, backup battery, water protection cover, etc.).

3.8.   End-User shall comply with any applicable laws, and is responsible for obtaining and maintaining any required license, approval, permit etc. for any access and use of the Products.

3.9.   End-user shall fully cooperate with Company and provide Company with any and all assistance in order to execute these T&C and the End-User Contract, and shall be responsible for ensuring that End-User’s employees and contractors (i) co-operate with Company’s efforts and assist Company to perform its obligation hereunder; (ii) comply with all applicable safety laws, permits, authorizations and regulations; (iii) take care for the safety of all persons entitled to be on End-User’s sites and facilities; (iv) keep End-User’s sites and facilities clear of unnecessary obstruction so as to avoid danger to these persons and other objects.

3.10.    If Company’s performance of any of its obligations under these T&C and the End-User Contract in respect of the Products, including the installation of any hardware or software at End-User’s facilities, is prevented or delayed by any act or omission of the End-User or failure by End-User to perform any relevant obligation (“End-User Default”), then any such delay shall result in an automatic extension of the delivery schedule set forth in the End-User Contract equal to the length of such delay, and, in addition: (i) Company shall, without limiting its other rights or remedies, have the right to suspend performance of the Products until End-User remedies the End-User Default, and to rely on the End-User Default to relieve it from the performance of any of its obligations to the extent the End-User Default prevents or delays Company’s performance of any of its obligations; (ii) Company shall not be liable for any costs or losses sustained or incurred by End-User arising directly or indirectly from End-User’s failure or delay to perform any of its obligations; and (iii) End-User shall reimburse Company upon written demand for any costs or losses sustained or incurred by Company arising directly or indirectly from the End-User Default.

3.11.    Without derogation from any other provision set forth herein and any remedy available to Company under any agreement or applicable law, End-User agrees to defend, indemnify and hold harmless Company, its affiliates, officers, directors, employees, agents and Partners from and against any and all third party claims and all liabilities, assessments, losses, costs or damages resulting from or arising out of: (i) End-User Default (ii) End-User infringement or violation of any intellectual property or other rights of any third party; and (iii) any other breach of these T&C and\or the End-User Contract.

4.     PRICE AND PAYMENTS

4.1.      The price and payment terms for the Products shall be set forth in the End-User Contract. End-User will pay Partner the amounts specified in the End-User Contract, in accordance with the payment plan set out therein (“Charges”), and, in the absence of a specified payment plan, all Charges will be payable in full by End-User within thirty (30) calendar days from the date of the invoice submission, in cleared funds to a bank account nominated in writing by Partner or Company.

4.2.      Unless otherwise stated in the End-User Contract, all amounts payable by End-User are exclusive of amounts in respect of value-added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the End-User Contract, End-User shall, upon receipt of a valid VAT invoice from Partner or Company, pay Partner or Company such additional amounts in respect of VAT as are chargeable on the supply of the Products or other goods and services at the same time as payment is due for the supply of such goods and services.

4.3.      End-User shall pay and bear all taxes, duties, customs, charges and other assessments of any kind imposed or asserted by any governmental authority.

4.4.      End-User shall pay all amounts due under the End-User Contract in full without any set-off, counterclaim, deduction or withholding except as required by applicable law. Partner and Company may, without limiting its other rights or remedies, set off any amount owing to each of them by End-User against any amount payable by Partner and Company to End-User.

4.5.      Any delay in payment of any Charges payable by End-User under these T&C and under the End-User Contract, shall be considered a material breach of these T&C and the End-User Contract.

5.     INTELLECTUAL PROPERTY

5.1.      Company warrants, and End-User acknowledge and confirm, that all rights, title and interest, including any Intellectual Property Rights, Confidential Information and Company Data, related to, associated with or derived from the Products, and all other related modifications, upgrades, improvements, updates and additions thereto, are and shall remain at all times the sole, complete and exclusive property of Company.

5.2.      End-User hereby undertake that it will not, and will not permit or assist or authorize third parties to: (i) take any action intended to circumvent or disable the operation of any security feature or measure of the Products; (ii) copy, reproduce, modify, alter, edit, manipulate, revise, translate, examine, adapt, enhance, extend, decompile, disassemble, reverse engineer or otherwise attempt to derive the source code, structure, algorithms, technology or ideas underlying the Products or any part thereof, by any means whatsoever; (iii) modify, or create derivative works of the Products or any part thereof; (iv) disclose, display, publish, distribute, sublicense, sell, transfer or make available any of the Products or any portion thereof; (v) insert or import, by act or omission, any viruses, trojan horse, worm, or any other computer programs designed to interrupt, destroy, or limit the functionality and\or otherwise attempts to interfere with the proper performance of the Products or any part thereof, including any system, software, hardware or telecommunications equipment; (vi) use, incorporate or embody the Products or any part thereof for general application development purposes or as a component of any other system or devices; (vii) sale, lease or license any Products or any part thereof, or make any other use thereof, except as explicitly permitted by these T&C; (viii) acts in a manner that is damaging to Company’s reputation; and\or (ix) violates or infringes any Intellectual Property Rights, these T&C, the End-User Contract or any applicable laws.

5.3.      These T&C and\or the End-User Contract do not and will not convey to End-User any right or interest in or to the Products or any related Intellectual Property Rights, Confidential Information and Company’s Data, except as expressly stipulated under these T&C.

5.4.      End-User will not make or permit the alteration or removal of any tags, labels, or other identifying marks placed by Company on the Products.

5.5.      End-User shall promptly inform Company of any event which may result in the infringement or violation of any Intellectual Property Rights as a result of any use of the Products.

5.6.      The Products may contain or use or may be provided to End-User with software and materials that are subject to open source licenses (“Open Source Software”). Information with respect to such Open Source Software is provided under the relevant Open Source Software licenses. Each Open Source Software is provided to End-User under the terms of the applicable Open Source Software license, and End-User acknowledges and agrees that it is and will be bound by the provision of such license. Nothing in this Section, including any use of an Open Source Software with respect to the Products, shall be deemed as a derogation from the proprietary nature of the Products or from any right of Company in and to the Products.

6.     CONFIDENTIALITY

6.1.      End-User hereby undertakes, with respect to Company’s Confidential Information, that at all times, it: (i) shall treat and maintain such Confidential Information as confidential and hold it in strict confidence; (ii) shall not disclose such Confidential Information to any third party (other than to its authorised representatives on a need-to-know basis and for the provision of these T&C and the End-User Contract) without the prior written consent of Company; and (iii) shall not use the Confidential Information for any purpose other than as expressly stated in these T&C and the End-User Contract.

6.2.      End-User shall promptly notify Company upon discovery of any loss or unauthorized disclosure or unauthorized use of Company’s Confidential Information and\or any other breach of these T&C and\or the End-User Contract, and will cooperate with Company to assist Company regain possession of its Confidential Information and prevent its further unauthorized use.

6.3.      Upon Company’s written request or upon termination or expiration of the End-User Contract, End-User shall return to Company or destroy, at Company’s sole discretion, all of Company’s Confidential Information, including all records and copies thereof, and shall so certify to Company in writing.

7.     TERM & TERMINATION

7.1.      These T&C shall remain in full force and effect during the term of the End-User Contract (“Term”).

7.2.      Without prejudice to any rights or remedies under the End-User Contract, Company may terminate these T&C, at any time, for any reason or for no reason, at its sole discretion, by providing thirty (30) days prior written notice to End-User (“Notice Period”). During the Notice Period, the parties shall continue to discharge and perform their respective obligations under these T&C and the End-User Contract, unless otherwise agreed between them in writing.

7.3.      Without derogating from Section 7.2 above, Company may terminate these T&C upon the occurrence of any of the following events:

7.3.1.    A material breach of these T&C and\or the End-User Contract made by End-User or anyone acting on its behalf, which is not cured or rectified (if remediable, at Company’s reasonable discretion) within ten (10) days following the receipt of a written notice regarding such breach;

7.3.2.    in the event that a Force Majeure Event continues for more than sixty (60) days;

7.3.3.    A receiver or administrator is appointed over the whole or a material part of the undertakings or assets of End-User, or if End-User becomes insolvent or makes any special arrangements or assignment for the benefit of its creditors, or is the subject of a voluntary or involuntary filing under the insolvency or bankruptcy laws.

7.4.      Upon Company’s written request or upon termination or expiration of the End-User Contract, whichever is earlier, End-User shall return to Company all of the Products and any equipment or devices installed at End-User facilities or otherwise provided to End-User. Without derogating from the above, End-User shall provide Company with access to End-User’s facilities and shall reasonably assist Company in collecting the Products and such additional equipment or devices. The Products and such  additional equipment or devices shall be returned in good condition, free from any damage or alterations. Failure to maintain the Products in good condition may result in the forfeit of any security deposit provided by End-User under the End-User Contract and\or additional charges for damages.

8.    PERFORMANCE GUARANTEE

8.1.      Company may, at its sole discretion, offer End-User the opportunity to purchase a Performance Guarantee Policy, subject to the separate and binding terms and conditions stipulated therein. To the extent such policy has not been purchased by End-User, Company shall provide the End-User only with the warranty coverage as stipulated under Section 9 herein.

8.2.      End-User acknowledges and agrees that Company may terminate the Performance Guarantee Policy, at its sole discretion, by providing End-User with prior written notification. End-User shall have no claim or cause of action against Company in relation thereto, except for the right to terminate the End-User Contract within thirty (30) days from Company’s aforementioned notice, having complied with all the provisions of the End-User Contract and these T&C.

9.    WARRANTY

9.1.      Company confirms that during the Term, and under normal use, the Products will substantially adhere to the technical specifications outlined in these T&C and the End-User Contract and will be free from material defects in design, material and workmanship, all subject to and in accordance with these T&C and the End-User Contract and to the extent within Company’s control and capability; and provided that: (i) End-User gives notice in writing within a reasonable time of discovery that certain or all of the Products do not comply with the Warranty set out in this Section 9.1; (ii) Company is provided with a reasonable opportunity and access to examining such Products; and (iii) End-User (if asked to do so by Company) returns such Products to Company.

9.2.      Upon receipt of a Product that materially fails to comply with the Warranty outlined in Section 9.1 due to any non-compliance attributable to the Company, Company shall, at its option and sole discretion, repair or replace such defective Product, to the extent that Company is provided with a reasonable opportunity and access to such Product, and the aforementioned repairment or replacement shall constitute the sole and exclusive remedy of End-User.

9.3.      End-User acknowledges and agrees that, to the greater extent permitted under applicable law, Company’s warranty under these T&C and the End-User Contract are exclusive, replace and supersedes any and all other warranties and liabilities available to End-User under any agreement and under any applicable law.

9.4.      Company’s warranty and liability shall not apply to any damage of any nature incurred by the Products, in whole or in part, due to any of the following: (i) End-User makes any further use of such defective Products after giving a notice in accordance with Section 9.1 above; (ii) the defect arises because End-User failed to follow Company’s Documentation or any other instructions as to the storage, installation, use or maintenance of the Products, or any non-compliance or utilization made by End-User not expressly stipulated under these T&C and the End-User Contract; (iii) the defect arises from any part that has been modified, altered or repaired by End-User or any third party, without Company’s prior written consent; (iv) the defect arises from willful damage, negligence, or abnormal working conditions, including an inadequate environment and facilities, improper storage and/or usage conditions and/or malfunctions and damage caused by any item or infrastructure other than the Products themselves; (v) any Force Majure Events; .

9.5.      EXCEPT FOR THE LIMITED WARRANTIES SET FORTH HEREIN, THE PRODUCTS ARE PROVIDED “AS IS” AND COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PRODUCTS AND ANY OTHER SERVICES AND MATERIALS PROVIDED TO END-USER UNDER THESE T&C AND THE END-USER CONTRACT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE PRODUCTS WILL MEET END-USER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, DEVICES, INFRASTRUCTURES OR SERVICES (EXCEPT AS EXPRESSLY SET FORTH IN THE DOCUMENTATION), OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE.

9.6.      End-User confirms that it has thoroughly examined the Products including all of their contents, compatibilities, data, operations and capabilities, having been provided with the necessary information to do so, and deems them fit and sufficient for its intended use and suitable to meet its requirements, and has therefore decided to proceed with their installation, implementation and integration at its facilities.

9.7.      End-User acknowledges and agrees that additional safeguards may be necessary to protect its facilities from earthquakes and ground shaking risks, and therefore shall not solely rely on the Products for such purposes.

10.  LIMITATION OF LIABILITY

10.1.   Products; Results and Use. End-User acknowledges and agrees that any use of the Products by End-User or any third party is at its sole risk, and that other than as explicitly set forth in these T&C, Company shall bear no liability in connection with the Products, whether express or implied, and  End-User shall be solely liable and responsible with respect to such use and the results thereof. End-User assumes sole and exclusive liability and responsibility for assessing the risks, advantages and consequences of using the Products and for all consequences resulting from such use.

10.2.   Indirect Damages. Without derogating from the above, to the greatest extent permitted by applicable laws, Company shall not be liable for any indirect, incidental, statutory, exemplary, special, punitive, exemplary or consequential damages or losses whatsoever (specifically including, but not limited to, damages for loss of business, loss of profits, revenue, loss of use, data, goodwill or for business interruption), whether arising from breach of contract, tort (including negligence), breach of statutory duty or otherwise, or arising out of or in connection with the use of or inability to use the Products, even if foreseeable or if such entity has been advised of the possibility of such losses or damages. Furthermore, Company shall not be liable for damages resulting from the automatic disabling of the Products upon termination or expiration of these T&C and the End-User Contract.

10.3.   Liability Cap. In the event that, notwithstanding the explicit agreement of the Parties as stated above, a competent court shall find Company liable to any direct or indirect damage towards End-User, subject to and in accordance with a final, non-appealable judgment, the Parties agree that Company’s total aggregate liability to End-User, howsoever arising, with respect to any and all direct or indirect damages to which Company will be liable under these T&C, the End-User Contract or arising out of or related to any utilization of the Products, shall be capped and in any event shall not exceed, in the aggregate, the amount equal to fifty percent (50%) of the consideration paid by End-User and received by Company, during the last twelve (12)  months period preceding the occurrence of such damage.

10.4.   Connections. All of the technical or technological connections, interfaces and configurations, established or made by End-User or any third party with respect to the Products (including any connectivity or integration with End-User’s internal systems, devices, infrastructures, information, etc.), including any action intended to be conducted through such elements, if any, are and shall remain the sole and exclusive responsibility and liability of End-User, and End-User shall have no claim or cause of action against Company in relation thereto.

10.5.   Third Party’s Services. Company shall not be liable for any service which has been performed by any service providers or any third parties, except for service providers appointed by Company to perform specific services under these T&C and the End-User Contract. Any dispute or claim made by End-User with respect to such services, shall be resolved solely between End-User and such service provider or third party, without any involvement or liability of Company.

10.6.   Insurance. End-User is advised to purchase and maintain, during the Term, adequate insurance coverage of a sufficient amount in order to mitigate any and all risks, loss, harm and damage related to the operation or to the failure of the operation of the Products, that may occur, however arising or resulting, as suitable for its activities and business. End-User shall be solely responsible for evaluating and determining what insurance is appropriate to cover damage, loss and liability specific to its operation.

11.  SUPPORT AND MAINTENANCE

Support and maintenance services may be provided by Company (including via its third party service providers) with respect to the Products, subject to and in accordance with the provisions of the End-User Contract.

12.  FORCE MAJEURE

12.1.   Company shall not be liable to End-User for any failure or delay in performing its duties or obligations under these T&C or the End-User Contract, including any proper or any performance of the Products, which arises due to a Force Majeure Event.

12.2.   Delays in delivery or in meeting completion dates due to Force Majeure Events will automatically be extended for a reasonable period.  Company and End-User shall use commercially reasonable efforts to overcome or minimise the effect of a Force Majeure Events, and to resume performance as soon as reasonably practicable.

13.  MISCELLANEOUS

13.1.   Company may update these T&C from time to time, with or without notice, and will provide its updated T&C to End-User. End-User’s continued use of the Products shall be subject to the then-current T&C in effect. If any modification is unacceptable by an End-User, then such End-User should immediately cease using the Products, and to the extent such End-User does not cease using the Products, he will be deemed to have accepted those modifications.

13.2.   These T&C shall also govern any future upgrades or updates or new releases provided by Company in connection with the Products, unless any such upgrades or updates are accompanied by a separate set of terms and conditions, in which case the terms of that upgraded or updated terms and conditions will govern.

13.3.   If any provision of these T&C is held by a competent court to be invalid or unenforceable under applicable laws, then such provision shall be excluded from these T&C and the remainder of these T&C shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.

13.4.   These T&C may be freely assigned by Company, at its sole discretion. End-User may not assign, transfer or delegate any of its rights or obligations under these T&C and\or the End-User Contract, without obtaining Company’s prior written approval.

13.5.   No delay or omission by Company in enforcing any right, power or remedy shall impair that right, power or remedy or be construed to be a waiver of it. A waiver by Company of any of its respective rights, powers or remedies or of any breach shall not be construed to be a waiver of any other right, remedy or power or any succeeding breach.

13.6.   These T&C shall be construed, controlled and governed by the laws of Italy, with the exception of its rules on conflicts of laws. Subject to the above, the competent courts of Italy shall have jurisdiction to settle any dispute arising out of or in connection with these T&C (including a dispute regarding the existence, validity or termination of these T&C).