TERMS & CONDITIONS
This Agreement is between you and Poindevster Inc. (“Poindevster”). It specifies the terms and conditions governing your use of the Software. Please read this Agreement carefully. By clicking the acceptance button at the bottom of this Agreement, or by installing the Software, you accept, without limitations or qualifications, all of the terms and conditions of this Agreement. If You do not agree to (or cannot comply with) all of the terms and conditions of this Agreement, You may not install, ACCESS or otherwise USE the SOFTWARE.
“Agreement ” means these Terms and Conditions, and includes and incorporates the order form (“Order Form”) for the Software.
“Documentation ” means the version of documentation provided to you (to the extent actually provided) by Poindevster with the Software, together with any Updates thereto that Poindevster may provide you, or otherwise makes available to you, from time to time, in Poindevster’s sole discretion.
“Software ” means the software named “Veamly” (as may be amended from time to time), whether provided to you, or otherwise made available to, by Poindevster or any other person, and any derivative work thereof, with any associated and/or incorporated materials provided therein or therewith, as the case may be, including, without limitation, the Documentation (printed materials, and “online“ or electronic documentation), software modules, tools, executable files, add-ons, stencils, templates, filters, tutorials, help and other files that comprise or accompany the Software, together with all Updates thereto, to the extent that such Updates have been made available by Poindevster, from time to time, in its sole discretion.
“Support Arrangement ” means a separate arrangement entered into between you and Poindevster pursuant to which you may receive Support Services.
“Update ” means any new enhancement, upgrade, or extension to the Software that Poindevster makes generally available, in the normal course of business and in its sole discretion, to all or part of those customers of Poindevster for which Poindevster has resolved to grant licenses similar to the license granted hereunder and under similar terms.
The Software is protected by patent and copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Notwithstanding anything else to the contrary in this Agreement, you hereby acknowledge that the Software and any intellectual property and/or confidential information embedded in or otherwise provided as part of the Software is being licensed under the terms provided herein, and not sold, and no right, except to the limited license provided herein, is granted to you with respect to the Software and/or any of the aforementioned intellectual property and/or confidential information related to the Software.
3. LICENSE GRANT
Subject to your compliance, in full and to the satisfaction of Poindevster, with all of the terms and conditions of this Agreement, Poindevster hereby grants you a non-exclusive, non-sublicensable, personal, non-transferable, revocable and limited right and license to install the Software and use the Software during the term of the Agreement solely in accordance with the applicable Documentation and the features embedded within the Software. The Software may be utilized only for your personal usage, as provided herein. Poindevster will notify you in advance of the applicable fees (“Fees”) and payment terms for the license, and your right to continue using the Software shall be subject to the payment of such fees. If your use of the Software exceeds the service capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), you shall be billed for such usage and you agree to pay the additional fees in the manner provided herein. Poindevster reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial service term or then current renewal term, upon thirty (30) days prior notice to you (which may be sent by email). If you believe that Poindevster has billed you incorrectly, you must contact Poindevster no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Poindevster’s customer support department.
4. OWNERSHIP OF THE SOFTWARE
The foregoing provisions of Section 3 provide you a limited license to use the Software. Poindevster retains an exclusive ownership of any and all rights, title and interests in and to the Software and/or any intellectual property and/or confidential information embedded in the Software and/or related, directly or indirectly, to the Software and to any other proprietary materials that may be provided to you by Poindevster. You hereby acknowledge and agree that any and all rights, title and interests, including, without limitation, all copyrights, trademarks, trade names, logos and service marks, trade secrets, know-how, patents, designs and algorithms, utility models, and all improvements thereto, and any other intellectual property incorporated in and/or otherwise related to the Software, including but not limited to any images, photographs, animations, video, audio, music, text, and “applets”, and any copies of the Software and any other form of derivative work thereof is and will be owned solely by Poindevster. You shall own all right, title and interest in and to your data. All rights not specifically granted to you under this Agreement are hereby explicitly reserved by Poindevster.
5. RESTRICTIONS AND RESPONSIBILITIES
5.1. GENERAL RESTRICTIONS
Except for the scope of use permitted in accordance with the terms of this Agreement and the Documentation, copying of the Software or any portion and/or component thereof, including Software that has been modified or incorporated into or with other software, is expressly forbidden. In case of any permitted copy of the Software, you must reproduce and include any copyright notice, patent notice, product identification, and any other notice that appears on or in the Software, or on any media containing the Software (to the extent applicable). You will not (and will not allow any third party to) (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover, by any means whatsoever, any source code or underlying ideas or algorithms of the Software; (ii) remove any product identification, copyright, reference for patent or other notices; (iii) provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use the Software for the benefit of third parties; (iv) except as specified in the applicable Documentation, modify, incorporate into or with other software or create a derivative work of any part of the Software; or (v) use the Software after the termination of this Agreement.
5.2. EXPORT RESTRICTIONS
Furthermore, you may not remove or export from the United States or allow the export or re-export of the Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
5.3. CUSTOMER RESPONSIBILITIES
You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Software, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). You shall also be responsible for maintaining the security of the Equipment, your account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your account or the Equipment with or without your knowledge or consent.
6. SUPPORT SERVICES
Poindevster may offer you, in its sole discretion, its Support Services. Such Support Services shall be provided to you in accordance with the terms of the Support Arrangement. Any supplemental software provided to you as part of the Support Services shall be considered part of the Software and subject to the terms and conditions of this Agreement. With respect to technical information that you provide to Poindevster as part of the Support Services or otherwise, Poindevster may use such information for its business purposes, including for product support and development, and you hereby give Poindevster a non-exclusive, perpetual, royalty free and worldwide license to make any use it desires in connection with such information.
7. COMPLIANCE WITH LAWS
You represent, covenant, and warrant that you will use the Software only in compliance with Poindevster’s standard published policies then in effect and all applicable laws and regulations. You hereby agree to indemnify and hold harmless Poindevster against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from your use of the Software. Although Poindevster has no obligation to monitor your use of the Software, it may do so and may prohibit any use of the Software it believes may be (or alleged to be) in violation of the foregoing.
Subject to earlier termination as provided below, this Agreement is for the initial service term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless you request termination at least thirty (30) days prior to the end of the then-current term. You may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if Poindevster materially breaches any of the terms or conditions of this Agreement. You will pay in full for the Software up to and including the last day on which the Software services are provided.
Poindevster reserves the right to terminate this Agreement at any time, and cancel or suspend the license to use the Software at any time, with or without cause, upon notice by Poindevster to you. Upon such termination, you must immediately cease all use of the Software and other information and/or materials provided by Poindevster and delete and destroy all copies of the Software and such other information and/or materials (whether or not modified or incorporated with or into other software) and so certify to Poindevster of your compliance with the above, to the following address: https://www.veamly.com/privacy. Except for the license granted hereunder, as described in Section 3 of this Agreement, the terms of this Agreement shall survive the termination or expiration thereof. You acknowledge that termination is not Poindevster’s exclusive remedy, and all other remedies will be available to Poindevster whether or not this Agreement is terminated or expired.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SOFTWARE AND ALL INFORMATION AND/OR MATERIALS PROVIDED BY POINDEVSTER ARE PROVIDED “AS IS” AND POINDEVSTER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESSED, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE ACCURACY, COMPLETENESS OR PERFORMANCE OF THE SOFTWARE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, INCLUDING NONINFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. POINDEVSTER DOES NOT WARRANT THAT THE SOFTWARE WILL BE FREE FROM DEFECTS, OR THAT YOUR USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. POINDEVSTER IS NOT RESPONSIBLE AND HAS NO LIABILITY FOR ANY HARDWARE, SOFTWARE, OR OTHER ITEM OR SERVICE PROVIDED BY IT OR BY ANY OTHER PERSON. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE, INCLUDING AS TO THE QUALITY AND/OR ACCURACY OF THE SOFTWARE, REMAINS WITH YOU. YOU HEREBY ACKNOWLEDGE THAT POINDEVSTER DOES NOT WARRANT OR GUARANTY THE SECURITY OF THE SOFTWARE OR OF COMMUNICATIONS MADE USING THE SOFTWARE, AND YOU ASSUME ALL RISKS ASSOCIATED WITH THE SAME. YOU FURTHER ACKNOWLEDGE THAT THE SOFTWARE MAY, IN ORDER TO PERFORM ITS FUNCTION, MODIFY THE CONFIGURATION OF THE COMPUTER SOFTWARE AND DEVICES INSTALLED ON YOUR COMPUTER/SERVER.
10. LIMITATION OF LIABILITY
TO NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, POINDEVSTER AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND POINDEVSTER’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO POINDEVSTER FOR THE SERVICES UNDER THIS AGREEMENT IN THE 6 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT POINDEVSTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Except as expressly allowed in this Agreement, you will not disclose information and/or materials disclosed to you by Poindevster, including any technology, idea, algorithm, documentation or other information related to the Software. This obligation of confidentiality shall extend for a period of five (5) years after termination or expiration of this Agreement. However, you may disclose the existence of this Agreement and that you are an existing customer of Poindevster. You further agree to treat as confidential and not to disclose to any third party any information related to an alleged defect, bug or malfunction of the Software or the related technology associated with the Software. You acknowledge that unauthorized disclosure or use of such information will diminish the value of the proprietary interests that are the subject of this Agreement and might cause irreparable harm to Poindevster. If you breach any of your obligations hereunder, in addition to any other right or remedy that it may be available to it, Poindevster will have the right to seek and obtain an immediate injunctive relief to enforce obligations under this Section without the necessity of proving actual damages and without the necessity of posting bond or making any undertaking in connection therewith.
12. COLLECTION AND USE OF CUSTOMER DATA
Poindevster is committed to protecting the privacy of its users. This clause has been drafted in order to inform you about how Poindevster manages, collects, stores and uses the information you provide it in connection with your use of the Software.
12.2. NATURE OF INFORMATION COLLECTED & PURPOSE
Notwithstanding anything to the contrary, Poindevster may collect certain information regarding your use of the Software. Such information may be of both personal and non-personal nature. The Software tracks and reports to Poindevster certain data regarding your use of the Software. Any collection or use of said information will be anonymous and aggregate and in a form that does not personally identify you. This anonymous, statistical or aggregated information will only be used (during and after the term of this Agreement) to improve Poindevster’s products and services and for further internal, commercial and statistical purposes. Poindevster may also use such anonymous, statistical or aggregated information for such purposes, in a form that does not personally identify you, by posting, disseminating, transmitting or otherwise communicating or making available such information to other users of the Software, to Poindevster’s service providers, partners and any other third party.
However, if non-personal information is collected for an activity that also requires personal information, Poindevster may combine your non-personal information with your personal information in an attempt to provide you with a better user experience, to improve the value and quality of the Software and to analyze how the Software is being used.
Other than as provided herein, Poindevster does not rent, sell, share, or trade your personal information with third parties, and will not make use of your information for any purpose, other than the purposes indicated above. However, Poindevster may share your information in the following circumstances:
12.2.1. Within Poindevster, and, to the extent applicable, with its affiliates;
12.2.2. With business partners, service vendors, authorized third-party agents or contractors in order to provide a requested service or transaction, including intelligence and analytics services and hosting services. If applicable, Poindevster shall provide these third parties with only the minimum amount of information necessary to complete/provide the requested service or transaction;
12.2.3. In order to comply with the law or a legal process (such as responding to subpoenas or court orders) and to exercise Poindevster’s legal rights or defend against legal claims;
12.2.4. In order to investigate, prevent, or take action regarding illegal activities.
12.2.5. To a third party as part of a sale of the assets of Poindevster, a subsidiary, or division, or as the result of a change in control of Poindevster or one of its affiliates, or in preparation for any of these events.
By installing and using the Software, you expressly consent and agree to collection and use of such information by Poindevster, as described above, and waive any and all claims you may have in this respect. In addition, you hereby acknowledge that the information may be stored and processed by Poindevster and/or its agents at servers around the world, and you hereby give your consent to Poindevster to transfer your abovementioned information to be stored and processed in such servers around the world, including in Israel, Europe and U.S.A.
12.4. CONTACT POINDEVSTER
If you would like to contact Poindevster regarding any matter covered under this Agreement, please contact Poindevster at email@example.com.
You may not assign or transfer the license granted hereunder or any other right or obligation you may have under this Agreement without the prior written consent of Poindevster. Any attempt to do so in violation of the foregoing shall be void. 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 while most nearly adhering to the intent expressed herein. No failure to exercise, and no delay in exercising, on the part of Poindevster, any privilege, any power or any right hereunder will operate as a waiver thereof or constitute the basis for any form of estoppels. Except as provided below, any waivers or amendments to this Agreement shall be effective only if made in writing signed by a representative of Poindevster that is authorized to bind Poindevster. Poindevster may amend this Agreement or any portion thereof in its sole discretion, and you will have reasonable notice thereof, including, without limitation by posting an amended version of this Agreement on its website, in such case, Poindevster shall indicate the date in which this Agreement was last modified, and you shall have the sole responsibility to review such amended version of Agreement. The amended terms and conditions of the Agreement shall bind you as of their effective date or their publication, the later thereof. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of, the State of Delaware, without regard to conflicts of laws provisions thereof and without giving effect to the United Nations Convention on Contracts for the International Sale of Goods. You hereby agree to the exclusive jurisdiction of the courts located in Delaware, for all disputes relating to or arising out of this Agreement, including issues relating to the Software. Unless provided otherwise by a different agreement between the parties, you and Poindevster agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement, the supply of the Software and use thereof in particular. YOU acknowledge and agree that the warranty disclaimers and liability and remedy limitations in this Agreement are a material part of, and by your acceptance are also deemed as bargained in respect of, this Agreement and that You and POINDEVSTER have taken them into account in determining the benefits of, and other reasons to ENTER into, this Agreement.