1.1 “Customer” means a party that has purchased a license to use a Product from Ginger Gene.
1.2 “Documentation” means such user guides, installation instructions, release notes and/or training manuals concerning the Products, in printed or electronic format, and/or any other material furnished by Ginger Gene with the Products.
1.3 “Fees” means the fees charged by Ginger Gene to Customer for the right of using the Product and/or Maintenance Services.
1.4 “Maintenance Services" means the maintenance services specified in Exhibit A hereto, if purchased by Customer.
1.5 “Normal Business Hours" means Sunday through Thursday, excluding Israeli public holidays, 9:00 – 17:00 Israel time.
1.6 “Product(s)” means Ginger Gene’s Howtool™ platform software solution, and any demo thereof, and including bug fixes, new releases, updates, enhancements and/or back-up provided to Customer under Ginger Gene's Maintenance Services.
1.7 “Term" has the meaning set forth in Section 11.1.
2.0 GRANT OF LICENSE.
2.1 Grant. Subject to the terms and conditions of these Terms, including without limitation the payment of the Fees, Ginger Gene grants to Customer a non-exclusive, non-transferable, license for the Term to: (a) utilize the Products and Documentation solely for Customer's own internal operations; and (b) copy the material that belongs to the customer and is implemented by means of the Howtool™ platform for archival and backup purpose only; no other copies of the Products shall be made in whole or in part.
2.2 Scope of License.
The Products are licensed, not sold. These Terms only grant Customer some rights to use the Products. Ginger Gene reserves all other rights. Customer may use the Products only as expressly permitted in these Terms. In doing so, Customer must comply with any technical limitations in the Products that only allow Customer to use it in
certain ways. Customer may not: a) work around any technical limitations in the Products, (b) reverse engineer, decompile or disassemble the Products, except and only to the extent that applicable law expressly permits, despite this limitation, (c) make more copies of the Products than specified in these Terms or allowed by applicable law, despite this limitation, (d) publish the Products for others to copy, (e) use the Products in any way that is against the law, (f) rent, lease or lend the Products, or (g) use the Products for commercial software hosting services.
2.3 Restrictions. Except as set forth above, Customer may not directly or indirectly, alone or with any other party
(a) delete any copyright, trademark, restricted rights and other proprietary notices as originally provided with or on the Product and Documentation; (b) reproduce, distribute, transfer, publicly display, resell, lease, sublicense or loan the Products or Documentation to any other party; (c) make the Products or Documentation available to others in a service bureau arrangement, for any similar commercial time-sharing or third-party training use; or (d) transfer the Products or Documentation to any third party for outsourcing or any other purpose without the express prior written consent of Ginger Gene.
2.4 Reservation of Rights. All rights to the Products and Documentation not specifically granted herein are expressly reserved to Ginger Gene.
2.5 Audit and Enforcement Rights. Ginger Gene may, upon thirty (30) days’ advance notice and at its expense, conduct an annual audit, during Customer’s Normal Business Hours, of Customer’s use of the Products and Documentation to verify Customer’s compliance with these Terms. Customer agrees at all times to maintain records specifically identifying the Products and the computers on which the Product(s) are being used and to make such documentation available to Ginger Gene for inspection.
3.0 Maintenance Services
3.1 Description of Maintenance Services. Subject to the provisions of these Terms, including without limitation the payment of the Maintenance Services Fees, Ginger Gene shall provide Maintenance Services for the Products during the initial 12 (twelve) month period beginning on the Effective Date and any renewal thereof (“Maintenance Period”). The Maintenance Period shall be renewed automatically for additional 12 (twelve) month periods, unless either Party notifies the other in writing 60 (sixty) days prior to the end of the relevant Maintenance Period regarding its decision not to extend the Maintenance Period. Customer shall appoint 1 (one) Support Contact Designee. Ginger Gene will (a) use reasonable best efforts to promptly correct Product errors, (b) provide technical support and assistance during Normal Business Hours with respect to the Products, including a telephone support number, facsimile number and/or email address available solely to Customer’s Support Contact Designee, and (c) provide to Customer such bug fixes, new releases, updates, product extensions and enhancements as are generally provided to Ginger Gene’s customers who are entitled to receive Maintenance Services. Ginger Gene reserves the right to discontinue Maintenance Services on any Product twelve (12) months after the release of a new version or release of such Product. Customer may be responsible for the pass through cost of any additional third party software licenses required to run new releases.
3.2 Maintenance Services Renewals. Ginger Gene shall endeavor to invoice Customer annually at least forty-five (45) days prior to the expiration of the then current Maintenance Period, and Customer may accept such renewal Maintenance Services under these Terms by paying the invoice prior to the expiration of the current Maintenance Period. If Maintenance Services should terminate or expire, and Customer is in good standing under these Terms, Customer may reinstate Maintenance Services on payment of the cumulative standard Maintenance Services Fees
applicable for the period during which Maintenance Services lapsed, plus Maintenance Services Fees for the current Maintenance Services Period.
4.0 ORDER, DELIVERY AND ACCEPTANCE.
4.1 All orders for Products or Maintenance Services shall be deemed subject to these Terms. Customer understands and agrees that any additional terms and conditions of Customer's orders shall be void and of no effect. Upon acceptance of Customer’s order, Ginger Gene shall commence a Customer project by establishing an account for the Customer in order to implement the Customer’s material/content within the Product. In all instances, acceptance of, the Products shall be deemed to occur upon receipt and acceptance by Customer.
5.0 INVOICES, PAYMENT AND TAXES.
Ginger Gene shall issue an invoice to Customer for Product usage and Maintenance Services Fees plus applicable, sales, use, value-added or other taxes or levies, upon delivery of the Products to Customer. All such invoices shall be due and payable by Customer in full within thirty (30) days from the date of receipt of such invoice. If a certificate of exemption or similar document is required to exempt Customer from sales or use tax liability, Customer shall obtain and furnish to Ginger Gene evidence of such exemption with Customer’s order in a form satisfactory to Ginger Gene. Ginger Gene shall charge a late fee on past due amounts at the lesser of one and one-half percent (1.5%) per month or the maximum interest rate allowed by applicable law.
6.0 TITLE AND OWNERSHIP; PROPRIETARY NOTICES.
6.1 By Ginger Gene. Title to and ownership of all right, title and interest in and to the Products and Documentation, and all modifications thereto, will at all times be and remain with Ginger Gene or its licensors.
6.2 Proprietary Notices. Customer agrees to reproduce the copyright, trademark restricted rights and other proprietary notices contained on or in the Products and the Documentation as delivered to Customer on all copies of such Products and Documentation, and not to remove such notices.
7.1 In the event one or more of the Products are determined to, or are believed by Ginger Gene to, infringe the rights of a third party, Ginger Gene may, at its sole option and expense, elect to: (a) modify the Product(s) so that they are non‑infringing, (b) replace the Product(s) with non‑infringing Product(s) that are functionally equivalent or superior in performance, (c) obtain a license for Customer to continue to use the Product(s) as provided hereunder, or (d) if none of the foregoing can be achieved despite the reasonable efforts of Ginger Gene, terminate the license for the infringing Product(s), have Customer return or destroy such Product, and refund the license Fees paid by Customer for such Products, depreciated over a 60 month period on a straight-line basis beginning on the first anniversary of the Effective Date. For avoidance of doubt, Ginger Gene shall not be liable in any way for any claims of infringement of the content used by means of the Products.
7.2 Ginger Gene shall have no liability in connection with any claim of infringement based on the (a) use of other than the then-latest release of the Product, if such infringement could have been avoided by use of the latest release provided under the Maintenance Services, or (b) use of the Product in combination with other materials not provided by Ginger Gene where infringement would not have resulted but for such combination, or (c) modification of the Products by any party other than Ginger Gene where infringement would not have resulted but for such modification.
7.3 No Additional Liability. THIS SECTION STATES THE ENTIRE LIABILITY OF GINGER GENE WITH RESPECT TO INFRINGEMENT OF PATENTS, TRADE SECRETS, COPYRIGHTS AND OTHER INTELLECTUAL PROPERTY BY THE PRODUCTS, DOCUMENTATION, OR ANY OTHER MATERIALS SUPPLIED BY GINGER GENE OR USE THEREOF, AND GINGER GENE SHALL HAVE NO ADDITIONAL LIABILITY WITH RESPECT TO ANY ALLEGED OR PROVEN INFRINGEMENT.
8.0 WARRANTY AND LIMITATION OF WARRANTY.
8.1 Warranty for Products and Media. Ginger Gene warrants to Customer that for a period of ninety (90) days after delivery, when properly installed and used, (a) the Product is capable of operating in substantial conformance with the Documentation, and (b) the physical medium on which a Product is furnished by Ginger Gene shall be free of defects in materials and workmanship under normal use. If Customer reports a defect in the medium during such period, Ginger Gene will replace it at no charge.
8.2 Limitation of Warranty. The limited warranties set forth above shall not apply if the Product (a) is not used in accordance with the Documentation; (b) has been modified without Ginger Gene's express authorization; (c) fails to function due to a malfunction of Customer's equipment, including any third party equipment or server; or (d) fails to function because of third party products incorporated or integrated with or used in connection with the Products and not provided by Ginger Gene as part of a system or approved by Ginger Gene, or (e) for any other cause within the control of Customer.
8.3 Disclaimer of Liability. Except for the limited warranties provided above, all Products are provided on an “AS IS" basis. Ginger Gene does not warrant that the Products will meet Customer's requirements, that the operation of the Products will be uninterrupted and/or error‑free. Customer acknowledges and agrees that the Product(s) reflect the level of knowledge and expertise possessed by Ginger Gene at the time of the release of the Product(s). Customer acknowledges and agrees that new technology, software upgrades and routine maintenance, among other items, can create new and unknown security exposures. Moreover, computer “hackers” and other third parties continue to employ increasingly sophisticated techniques and tools, resulting in ever growing challenges to software programs. It is Customer’s sole responsibility to maintain the security of its software programs and data. The Product(s) do not constitute any representation or warranty by Ginger Gene about the security of Customer’s software programs or any content or data, including but not limited to, any representation that Customer’s software programs, content or data are safe from intrusions or any other security exposures. Ginger Gene makes no representations or warranties whatsoever in connection with any third-party services and/or servers (whether such third party services and/or servers were hired by Ginger Gene or the Customer), including but not limited to the availability thereof (including downtime), data loss or security issues that may arise in connection therewith. If a server is supplied by Ginger Gene, Ginger Gene's liability is subject to the limitations set forth herein. Furthermore, Ginger Gene makes no representations or warranties whatsoever in connection with any content that is used by Customer in relation to or by means of the Products. The Customer shall be solely responsible for approving the content that it uses by means of the Products, it shall be deemed to have approved any such content that it in fact uses by means of the Products, and Customer expressly waives any claims against Ginger Gene in connection with any such content. GINGER GENE MAKES NO ADDITIONAL WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY, AS TO ANY OTHER MATTER WHATSOEVER. IN PARTICULAR, ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND OF NON-INFRINGEMENT ARE HEREBY EXPRESSLY DISCLAIMED.
9.0 LIMITATION OF LIABILITY.
9.1 Limitations on Damages.
NEITHER CUSTOMER NOR GINGER GENE SHALL BE LIABLE OR OBLIGATED IN ANY MANNER FOR ANY EXEMPLARY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, LOSS OF DATA, LOST PROFITS, LOSS OF BUSINESS OPPORTUNITY, DAMAGE TO GOODWILL, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE AGGREGATE LIABILITY OF GINGER GENE UNDER OR FOR BREACH OF THESE TERMS FOR ANY CAUSE WHATSOEVER SHALL NOT EXCEED THE FEES PAID TO GINGER GENE FOR THE PRODUCTS.
9.2 Time Limits on Bringing an Action. No action may be brought by either Party under these Terms or otherwise more than twenty four (24) months after the earlier of the time when such Party was aware of or reasonably should have been aware of facts which put it on notice thereof.
10.0 CONFIDENTIAL INFORMATION.
10.1 “Confidential Information” means (a) the Products and Documentation in any embodiment, and any modifications, updates or enhancements thereto; (b) any other information, whether oral or written, relating to the Products received by Customer from Ginger Gene whether or not identified by Ginger Gene as proprietary or confidential; and (c) each Party’s proprietary technical, business, financial and/or marketing information relating to inventions, products, research and development, production, manufacturing or engineering processes, costs, profit or margin information, employee skills and salaries, finances, customers, or future business plans.
10.2 Restrictions on Disclosure. Each Party agrees not to disclose to any third party any item of the other Party’s Confidential Information without such other Party’s prior written consent. Each Party further agrees to take the same care with such items of Confidential Information as it does with its own Confidential Information, but in no event less than a reasonable degree of care. At a minimum, each Party agrees to limit access to the other Party’s Confidential Information to those employees or consultants having a need to know such information in order for that Party to exercise its rights or perform its obligations under these Terms, and then only after obtaining the written agreement of all such persons to maintain the confidentiality of such information.
10.3 Customer shall not disassemble, reverse engineer or decompile any Product.
10.4 Exclusions. Except with respect to Products and Documentation, a Party’s Confidential Information shall
not include information that: (i) is or becomes publicly available through no act or omission of the other Party; (ii) was in the other Party’s lawful possession prior to the disclosure without obligation of confidentiality; (iii) is lawfully and rightfully disclosed to the other Party by a third party without restriction on use or disclosure; or (iv) is independently developed by the other Party.
11.0 TERM AND TERMINATION; SURVIVAL.
11.1 Term. The term hereof will begin on the Effective Date and will continue unless terminated pursuant to this Section (the “Term“).
11.2 Termination. Either Party may terminate these Terms upon thirty (30) days written notice in the event of
a material breach of these Terms by the other party if the defaulting Party has not cured such breach within such thirty (30) day period. Upon termination of these Terms for any reason, all rights granted to Customer under these Terms shall immediately cease, and Customer shall immediately return to Ginger Gene, or at Ginger Gene’s
option, certify to the destruction of, all copies of Products and Documentation in Customer's possession. Similarly,
upon any such termination Ginger Gene shall promptly return to Customer, or at Customer’s option, certify to the destruction of, all proprietary or confidential information of Customer held by Ginger Gene.
11.3 Survival of Certain Provisions. The Parties’ rights and obligations contained in Sections 2.3 (“Restrictions"), 6.0 (“Title and Ownership; Proprietary Notices"), 7.0 (“Infringement”), 8.0 (“Warranty and Limitation of Warranty"), 9.0 (“Limitation of Liability"), 10.0 (“Confidential Information"), 11.0 (“Term and Termination; Survival”), and 13.0
(“General"), as well as any obligations to make payments of Fees accrued or due hereunder prior to termination, shall survive any termination hereof.
12.1 Customer agrees: (a) to allow Ginger Gene to list Customer as a current customer on its website, in press releases, etc.; (b) to allow Ginger Gene to issue a press release indicating that Customer has agreed to purchase Product licenses; (c) to allow Ginger Gene to use Customer as a reference for the Products, which may include telephone references and onsite prospective client visits, upon obtaining Customer’s prior consent and at times
that are convenient to Customer; and (d) to allow Ginger Gene to publish a case study that describes how the Products were used to solve customer’s business needs and provide value to Customer, subject to Customer’s prior review and approval.
13.0 GENERAL PROVISIONS.
13.1 Governing Law. Disputes arising out of or relating to these Terms shall be governed by and interpreted in accordance with the laws of the State of Israel, excluding its choice of laws rules. The courts of the Tel-Aviv/Jaffa district in Israel shall have exclusive jurisdiction with respect to any matters rising out of these Terms.
13.2 Headings and Wording.
Section and/or paragraph headings used in these Terms are for reference purposes only and shall not be used in the interpretation hereof. No provision of these Terms shall be construed against either Party as the drafter thereof.
13.3 Non-Assignability. Neither the rights nor obligations arising under these Terms are assignable, delegable
or transferable by Customer, and any attempt to take such action shall be void and without effect, except on the prior written approval of Ginger Gene, which approval Ginger Gene may in its sole discretion withhold. Notwithstanding the foregoing, either party may assign these Terms, in its entirety, to an entity which purchases all or substantially all of the assets of such party which pertain to these Terms, or acquires control of such assets by reason of a merger or acquisition, sale of assets, sale of stock, or otherwise provided that the assignee or acquiring party undertakes the obligations of the assignor or acquired party.
13.4 No Waiver. The failure of either Party to enforce at any time, or for any period of time, the provisions
of these Terms shall not be interpreted to be a waiver of such provisions or of the right of such Party to enforce each and every such provision.
13.5 Partial Invalidation. In the event that any provision of these Terms shall be held by law, or found by a
court or other tribunal of competent jurisdiction to be unenforceable as stated herein, such provision shall remain enforceable to the extent permitted by applicable law or the findings of the court or other tribunal of competent
jurisdiction, and the remaining portions hereof shall remain in full force and effect. In such event, Ginger Gene and Customer agree to negotiate in good faith a substitute enforceable provision that most nearly gives effect to Ginger Gene's and Customer’s intent.
13.6 Relationship of Parties.
The Parties hereto are independent contractors. Nothing contained herein or done in pursuance hereof shall constitute either Party the agent or partner of the other Party for any purpose or in any sense whatsoever, or create any form of joint enterprise whatsoever between the Parties.
13.7 Notices. All notices or demands hereunder shall be by certified or registered mail, return receipt
requested, at the address of the receiving Party specified above (or at such different addresses as may be designated by either Party by written notice to the other Party), and shall be deemed complete three (3) days after mailing. Notices to Ginger Gene shall be sent to the attention of: Chief Financial Officer.
13.8 Force Majeure. Neither Party shall be held responsible for any delay or failure in performance under these Terms to the extent such delay or failure is caused by fire, flood, strike, civil, governmental or military authority, act of God, inability to obtain delivery of parts, supplies, labor conditions, earthquakes or any other cause beyond its control and without the fault or negligence of the delayed or nonperforming Party.
13.9 Entire Agreement. These Terms constitutes the entire agreement between Ginger Gene and Customer with
respect to the subject matter hereof, and any and all written or oral agreements previously existing between Ginger Gene and Customer pertaining to such subject matter are expressly canceled.
13.10 Amendments. Ginger Gene may amend these Terms from time to time without any requirement to notify Customer thereof.