[by SPIKKO Telecom Ltd. ("Company" or "Mobile2CRM")]
GENERAL TERMS AND CONDITIONS
THESE GENERAL TERMS AND CONDITIONS (“AGREEMENT”) FORM AN INTEGRAL PART OF THE PURCHASE ORDER AND IT APPLIES TO THE SERVICES PURCHASED BY YOU ("SERVICES") UNDER SUCH PURCHASE ORDER.
- Definitions. The following terms shall have the respective meanings set forth below:
1.1. Intellectual Property Rights means any and all patents, copyrights, trade marks, designs, trade secrets, know-how, trade secrets and any other intellectual property rights, whether registered or not, contained in or relating to the Platform.
1.2. Platform means Mobile2CRM’s cloud-based platform that allows for recording, storing and analyzing voice, video and text communications.
1.3. Purchase Order means a binding official document (paper or digital) indicating the agreed types, quantities, and prices for the Services purchased by You from Mobile2CRM.
1.4. Site means Mobile2CRM’s website at www.Mobile2crm.com.
1.5. User Account means the account with the User ID and Password that You create for Your use of the Platform.
1.6. User ID means to an identification code You selected, which in combination with the Password, gives access to Your User Account.
1.7. You means the end user of the Platform, also used in the form “Your” where applicable.
- License. Subject to the full payment of the applicable fees when due as set out in the Purchase Order and for the period specified in such Purchase Order, Mobile2CRM hereby grants You a limited, personal, non-commercial, non-exclusive, non-sublicensable, non-assignable license to access the Platform for such number of users set out in the Purchase Order for the purpose of obtaining the Services and in accordance with the Purchase Order and these Terms and Conditions.
- License Restrictions. You shall not: (i) use the Platform not in accordance with these Terms and Conditions and/or the Purchase Order; (ii) sell, license, lease, assign, transfer, sub-license, pledge or share your rights under these Terms and Conditions and/or the Purchase Order with/to any third party; (iii) engage, yourself or through the assistance of any third party, directly or indirectly, in the research, development, manufacturing, of any product which is or may constitute a Competitive Product or derivative work of the Platform (or any part thereof); and (iv) represent that you possess any proprietary interest in the Platform; (v) directly or indirectly, take any action to contest Mobile2CRM’s Intellectual Property Rights or infringe them in any way. In this Agreement, “Competitive Product” shall mean any product, system, device, component or software program which competes with the Platform (or any of its functions and/or software components) and/or which imitates and/or can serve as a substitute thereof.
- Intellectual Property Rights. You acknowledge and agree that any and all Intellectual Property Rights to or arising from the Platform are and shall remain the exclusive property of Mobile2CRM and/or its licensors. Nothing in this Agreement intends to transfer any such Intellectual Property Rights to, or to vest any such Intellectual Property Rights in, You. You are only entitled to the limited use of the Intellectual Property Rights granted to You under these Terms and Conditions and/or the Purchase Order. You will not take any action to jeopardise, limit or interfere with the Intellectual Property Rights. You acknowledge and agree that any unauthorised use of the Intellectual Property Rights is a violation of these Terms and Conditions and/or the Purchase Order as well as a violation of any applicable intellectual property laws, including without limitation, copyright laws and trademark laws. You acknowledge and understand that all title and Intellectual Property Rights in and to any third party content that is not contained in the Platform, but may be accessed through use of the Platform, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties (“Third Party Content“).
- Infringement User Content. You must not use any Third Party Content without first obtaining the permission of the owner of the intellectual property rights in such content. If Mobile2CRM receives any notification that any Third Party Content or any User Materials that you post or use are inappropriate, infringes any rights of any third party, or if Mobile2CRM wishes to remove any third party content or user materials posted by you for any reason whatsoever, Mobile2CRM reserves the right to automatically remove any such content for any reason immediately or within such other timescales as may be decided from time to time by Mobile2CRM in its sole discretion. The content shall be taken down without any admission as to liability and without prejudice to any rights, remedies or defenses, all of which are expressly reserved. You acknowledge and agree that Mobile2CRM is under no obligation to put back such content at any time.
- Platform and Website
6.1. Your use of the Platform and the Website shall be subject to the following provisions: (i) You will not copy or distribute any part of thereof in any medium or form without Mobile2CRM’s prior written authorization; (ii) You will not alter or modify any part of thereof; and (iii) You will otherwise comply with the terms and conditions of these Terms and Conditions.
6.2. Use of the Platform and access to certain features provided in the Website might be subject to the creation of an account by You (the “Client Account“). You confirm and represent that the Client Account is to be used for Your benefit only, and to the extent applicable, you further represent that You are a representative of an organization authorized to sign and bind such organization in these Terms and Conditions and receive the Services. Mobile2CRM shall not be responsible for any unauthorized activity relating to a Client Account. You must keep Your Client Account passwords personal and secure. You must notify Mobile2CRM as soon as possible of any suspected breach of security or unauthorized use of Your Client Account. Mobile2CRM will not be liable for any losses caused to You by any unauthorized use of Your Client Account, however You will be liable for any loss caused to Mobile2CRM or others due to such unauthorized use.
6.3. You agree not to knowingly use or launch any automated system, including without limitation, “robots”, “spiders,” “offline readers” etc., that access the Website and/or the Platform in a manner that sends more request messages to Mobile2CRM’s servers in a given period of time than a human can reasonably produce in the same period by using a convention on-line web browser.
6.4. These Terms and Conditions apply to all Website and Platform users, unless agreed otherwise in writing by Mobile2CRM.
7.2. You hereby grant Mobile2CRM permission to collect and store information about You solely for the performance of the Service (the “Data“). The Data may include e-mail address, names, expertise in specific topics, information with respect to Your contacts and related to them, users You respect, favorite writers and etc., identifiable information. Mobile2CRM Data may also include demographic information, which is not unique to You or Your contacts, such as ZIP code, age and gender. [Please confirm\erase as applicable]
7.4. Mobile2CRM shall make reasonable business efforts to provide You with the Services but makes no guarantee for the accuracy or the uninterrupted use of the Services and shall not be held accountable for damages or claims based on such cased, all provided that but for such Mobile2CRM or any one on its behalf act or omission the claim would have been avoided.
- Electronic Communications. When You visit or use the Platform, Website or send e-mails to Mobile2CRM, You are communicating with us electronically. You hereby consent to receive electronic communications, including updates regarding the Website, its activities, publications, general notices and advertisements. Mobile2CRM will communicate with You by e-mail or by posting notices on the Platform or the Website and You hereby agree that all agreements, notices, disclosures and other communications that Mobile2CRM provides electronically satisfy any legal requirement that such communications be in writing.
- GDPR Compliance. You agree to comply with all applicable Data Protection Legislation including the General Data Protection Regulation (EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation relating to data protection and privacy, as amended or updated from time to time, as well as any successor legislation to the GDPR.
10.1. During the term of this Agreement, each party (the “Disclosing Party”) may disclose certain Confidential Information to the other party (the “Receiving Party”). “Confidential Information” includes information, in whatever form, including without limitation: technical information such as computer programs, characterization, formulae, algorithms, process, performance, interface information, including commands, format, syntax and semantics, defects, bugs, business information, including future product information, basic concepts, marketing and sales information, sales volume, financial, pricing and accounting information. Confidential Information does not include any information which, as the Receiving Party can demonstrate by written records: (i) was already known to Receiving Party free of any obligation to keep it confidential at the time of its disclosure by the Disclosing Party; (ii) is or becomes publicly known through no wrongful act of Receiving Party; (iii) is rightfully received from a third party having no confidentiality obligation with respect to such information; or (iv) was acknowledged in writing by the Disclosing Party to be non-confidential prior to any disclosure thereof.
10.2. The Receiving Party shall refrain from using or exploiting any and all Confidential Information for any purposes or activities other than those specifically authorized in this Agreement. Except as otherwise specifically permitted herein or pursuant to written permission of the Disclosing Party: (i) The Receiving Party represents and warrants that it will hold Confidential Information in strict confidence and protect the Confidential Information with no less than the same extent and by the same means it uses to protect the confidentiality of its own proprietary or confidential information that it does not wish to disclose; (ii) The Receiving Party shall not disclose or facilitate disclosure of Confidential Information of the Disclosing Party to anyone except its employees and its Associated Companies who need to know such information for the purposes set forth in this Agreement and to the extent they need to know, and provided all such employees and its Associated Companies comply with obligations similar to the obligations hereunder with respect to the Confidential Information; and (iii) The Receiving Party shall return all Confidential Information made available hereunder, including copies thereof, shall be returned to the Disclosing Party or shall certify that such information has been destroyed, at the request of the Disclosing Party and/or upon expiration or termination of this Agreement, whichever is earlier.
10.3. If the Receiving Party discloses, loses or is unable to account for any Confidential Information of the Disclosing Party, the Receiving Party promptly will (a) notify the Disclosing Party upon becoming aware thereof, and (b) take such actions as may be necessary or reasonably requested by the Disclosing Party to minimize the impact of such situation.
10.4. A material breach of this Section 10 by either party (the “Breaching Party”) would cause the other party (the “Non-Breaching Party”) an irreparable harm for which the Non-Breaching Party has no adequate remedies at law. Accordingly, the Non-Breaching Party will be entitled to seek specific performance or immediate injunctive relief for any such breach, in addition to any other remedies available to the Non-Breaching Party according to any applicable law and according to this Agreement.
10.5. Under certain circumstances, Mobile2CRM may be required to disclose your Personal Data if required to do so by law or in response to valid requests by public authorities (e.g. a court or a government agency).
10.6. Mobile2CRM may disclose your Personal Data in good faith provided that such action is necessary to comply with legal obligations, legal liability reasons (i) to comply with a legal obligation; (ii) to protect and defend the rights or property of Mobile2CRM; (iii) to prevent or investigate possible wrong doing in connection with the Product; (iv) to protect the personal safety of users of the Product or the public; (v) for legal liability reasons.
- Warranty Disclaimers.
11.1. THE PLATFORM IS PROVIDED AND MADE AVAILABLE TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, QUIET POSSESSION, TITLE, QUALITY OF THE PLATFORM, NON-INFRINGEMENT, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY MOBILE2CRM AND ITS LICENSORS AND AFFILIATES.
11.2. YOU acknowledge that the Platform is inherently complex and its functioning is depended on third party providers such as electricity, internet infrastructure, internet suppliers, Mobile operators and the like. You further AGREE THAT MOBILE2CRM WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CONSEQUENCES TO YOU OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS OF THE INTERNET, SLOW CONNECTIONS, TRAFFIC CONGESTION, OVERLOAD OF OUR OR OTHER SERVERS, LOSS OF RECORDING FOR ANY REASON, OR the inability to locate a recording or a call FOR ANY REASON.
11.3. IN ADDITION, NEITHER MOBILE2CRM NOR ITS LICENSORS OR AFFILIATES MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION: (A) REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, AVAILABILITY, TIMELINESS, ACCURACY, OR COMPLETENESS OF THE PLATFORM; (B) THAT YOUR USE OF, OR RELIANCE UPON, THE PLATFORM WILL MEET YOUR REQUIRMENTS OR EXPECTATIONS; (C) THAT THE PLATFORM WILL BE UNINTERRUPTED, SECURE, ERROR-FREE OR VIRUS-FREE, OR THAT DEFECTS IN THE PLATFORM WILL BE CORRECTED; (C) THAT THE PLATFORM WILL BE UNINTERRUPTED, SECURE, ERROR-FREE OR VIRUS-FREE, OR THAT DEFECTS IN THE PLATFORM WILL BE CORRECTED; OR (D) REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY GOVERNMENT REGULATIONS OR STANDARDS.
- Limitation of Liability.
12.1. IN NO EVENT SHALL MOBILE2CRM OR ANY OF OUR LICENSORS OR SUPPLIERS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR:
12.1.1. ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;
12.1.2. ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS;
12.1.3. ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL; AND/OR
12.1.4. THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
12.2. THE AGGREGATE LIABILITY OF MOBILE2CRM UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE LOWER OF: (A) FIVE U.S. DOLLARS (US $5), AND (B) THE AMOUNTS ACTUALLY PAID BY YOU (IF ANY) TO MOBILE2CRM DURING TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU BRING YOUR CLAIM.
12.3. THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF MOBILE2CRM HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, INCLUDING WITHOUT LIMITATION NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY, OR OTHER CONTRACT OR TORT LIABILITY.
- Indemnification of Mobile2CRM.
You agree to indemnify, defend and hold Mobile2CRM, its affiliates, employees, officers, directors and subcontractors harmless from and against any and all liabilities and costs, including reasonable attorneys’ fees incurred by said parties, in connection with or arising out of Your (a) violation or breach of any term of these Terms and Conditions and/or the Purchase Order or any applicable law or regulation, whether or not referenced herein, or (b) violation of any rights, including the intellectual property rights of any third party, or (c) use or misuse of the Mobile2CRM Platform, or (d) communication spread by means of the Mobile2CRM Platform.
14.1. Term. This Agreement will be effective for as long as the Purchase Order is in effect and for as long as you are permitted to use the Services.
14.2. Termination by Mobile2CRM. Without limiting other remedies available to Mobile2CRM according to this Agreement or any applicable law, Mobile2CRM may limit, suspend, or terminate this license and Your use of the Platform, and/or delete Your User Account and/or User ID, with immediate effect, if Mobile2CRM suspects that You are in breach of these Terms and Conditions and/or the Purchase Order, creating problems, possible legal liabilities, infringing any third party’s intellectual property rights, engaging in fraudulent, immoral or illegal activities, or for other similar reasons. Mobile2CRM shall effect such termination by providing notice to You to the email address You have provided, and/or by preventing Your access to the respective User Account. Furthermore, we reserve the right to cancel User Accounts that have been inactive for more than one (1) year.
14.3. Consequences of Termination. Upon termination of this Agreement, You (a) acknowledge and agree that all licenses and rights to use the Platform shall terminate, and (b) will cease any and all use of the Platform, and (c) will remove the Platform from all hard drives, networks and other storage media and destroy all copies of the Platform in Your possession or under Your control.
14.4. No liability. Mobile2CRM will not be liable in respect to any damage or alleged damage caused by termination, expiration or suspension of this Agreement.
15.1. Assignment. Your rights pursuant to these Terms and Conditions and the Purchase Order may not be assigned by You, without the express written consent of Mobile2CRM.
15.2. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Israel without giving effect to any conflict of laws provisions. Any legal proceedings arising out of or relating to this Agreement will be subject to the jurisdiction of the courts of Tel Aviv.
15.3. Amendment. Mobile2CRM may modify these Terms and Conditions by posting the amended version on the Site.
15.4. Severability. Any clause, provision, or portion of this Agreement found or ruled invalid, void, illegal or otherwise unenforceable under any law or by any court, arbitrator, or other proceeding, shall be amended to the extent required to render it valid, legal and enforceable, or deleted if no such amendment is feasible, and such amendment or deletion shall not effect the enforceability of the other provisions hereof.
15.5 Entire Agreement. The parties agree that these Terms and Conditions and the Purchase Order are the complete and exclusive statement of the agreement between the parties, which supersede all prior agreements, oral or written, and all other communications between the parties relating to your use of the Platform.