TREE AMS TERMS OF USE
This Tree AMS Terms of Use Agreement (“Agreement“), consists of the terms and conditions which governs your, the undersigned (“you” or “user“), access to and use of Tree AMS Networks Ltd.’s (“Tree AMS“) Solutions (defined below). This instrument constitutes a binding agreement between you and Tree AMS. It is important that you read the following terms and conditions. By using the Solutions (in whole or in part) in any way or manner, you agree to abide by, and that you are bound, by this Agreement. If you do not agree to this Agreement, you should immediately avoid the use of the Solutions and return them to Tree AMS.
1. Definitions
1.1. “Intellectual Property Rights” shall mean any and all worldwide, whether registered or not (a) patents, patent applications and patent rights; (b) rights associated with works of authorship, including copyrights, copyrights applications, copyrights restrictions, mask work rights, mask work applications and mask work registrations; (c) rights relating to the protection of trade secrets and confidential information; (d) trademarks, trade names, service marks, logos, trade dress, goodwill and domains (“Trademarks“); (e) rights analogous to those set forth herein and any other proprietary rights relating to intangible property; and (f) divisions, continuations, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.
1.2. “Service” shall mean (i) the Tree AMS proprietary software as a service (SaaS), based on Tree AMS’s software, listed in Schedule A, (ii) any software that is delivered to you by Tree AMS or its distributors or is provided with the Hardware; (iii) all revisions, corrections, modifications, enhancements, improvements and/or updates and upgrades to the foregoing, (iii) all related documentation included in the package and/or placed on Tree AMS’s World Wide Web site.
1.3. “Solutions” shall mean the Service.
2. Ownership. Notwithstanding any other provision to the contrary, all Confidential Information, Trademarks, Feedback (defined below) and the Solutions, including without limitation all Service and all improvements, enhancements and derivatives thereof and all Intellectual Property Rights thereto (“Tree AMS IPR“) are exclusively owned by Tree AMS and/or its licensors. This Agreement does not convey to user any right, title or interest in the Tree AMS IPR, other than the revocable and limited license to use the Service as set forth in Section 4 below (provided user paid all applicable fees in full).
3. Confidential Information. The Solutions contain valuable trade secrets of Tree AMS and any disclosure or unauthorized use thereof will cause irreparable harm and loss to Tree AMS. User expressly undertakes to retain in confidence and to require its employees to retain in confidence all information and know-how in respect of the Solutions and/or that are transferred to, or discovered by user (“Confidential Information”). User expressly undertakes to (i) limit dissemination of the Confidential Information solely to its employees who have a need to know and who are bound by obligations and restrictions as to confidentiality and Intellectual Property Rights no less restrictive on said employees and no less protective of Tree AMS IPR and Confidential Information than the terms hereof; (ii) not disclose the Confidential Information to any third party; and (iii) not use the Confidential Information for any purpose other than as explicitly permitted herein.
4. Grant of Rights. Subject to the terms and conditions of this Agreement (including payment of all applicable license fees) and for so long as user complies in full with all such terms and conditions, Tree AMS grants user, and user accepts a limited, non-exclusive, personal, fee-bearing, non-transferable, non-sublicensable right to use the Service during the term set forth in Schedule 1, solely in object code form, for personal use only by user and as part of the Solution. The license shall be granted until terminated pursuant to this Agreement.
5. User Obligations and Limitations on Use.
5.1. User shall not (i) copy, reproduce, sell, license (or sub-license), lease, loan, assign, transfer, or pledge the Solutions or any part thereof, or otherwise permit any third party to do any of the foregoing; (ii) modify, disassemble, decompile, reverse engineer, revise or enhance or create any derivative works or otherwise merge or utilize all or any part of the Solutions with or into any third party materials or components or attempt to access or discover the Service’s source code; (iii) place the Service onto a server so that it is accessible via a public network or use the Service for timesharing or Service Bureau purposes; (iv) ship, transfer, or export the Solution or any component thereof or use the Solution in any manner, prohibited by law, including without limitation to, sell, distribute, export or download Solutions: (a) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Lebanon or Syria, (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, (c) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. or Israeli government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval, or (d) otherwise in violation of any export or import restrictions, laws or regulations of the U.S. or Israel or any foreign agency or authority. User agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list; (v) contest Tree AMS’s Intellectual Property Rights to the Tree AMS IPR; (vi) remove or add any labels, notices or logos to the Solutions, (vii) perform any act or be responsible to any omission that is illegal or in Tree AMS’s discretion jeopardizes, destabilizes. interrupts or encumbers the Solutions or their servers and/or has a detrimental impact on Tree AMS and/or Tree AMS IPR; (vii) transmit or upload any spam, viruses, spyware or other harmful, infringing, illegal, disruptive or destructive content, messages or files; (ix) access any Solution and/or its servers through or use with the Solutions any unauthorized means, services or tools, including, without limitation, any data mining, robots, or similar automated means or data gathering and extraction tools, including, without limitation, in order to extract for re-utilization of any parts of the Solutions; or (xi) cause or permit any third party to do any of the foregoing.
5.2. User is solely responsible for acquiring and maintaining all of the hardware, software and services necessary to access and make use of the Solutions, including without limitation paying all fees and other costs related to internet access. User shall use the Solutions in a proper environment as set forth in the Solution documentation and in compliance with the applicable operating instructions and all applicable laws and regulations and for no purpose other than as specifically authorized in the Solution documentation..
6. Payments. You shall pay Tree AMS all applicable fees for the Solution as set forth in Schedule A. All fees are due net thirty (30) days from the date of invoice. Any amount not paid when due shall bear a late payment charge, until paid, in an amount equal to 1.5% per month or, if lower, the maximum rate allowed by law. In addition, you shall reimburse Tree AMS for all reasonable costs (including legal fees and expenses) in collecting unpaid amounts owed under this Agreement. You will be responsible for all applicable sales, use and excise taxes and like charges imposed with respect to the Tree AMS Solution, your use thereof or any services provided by Tree AMS, except for taxes based on the net income of Tree AMS.
7. Maintenance, Support and Professional Services. Other than to the extent specifically enumerated in a separate Maintenance Agreement between Tree AMS and you, if any, which Maintenance Agreement, if any, is hereby incorporated by reference into this Agreement, Tree AMS has no obligation to provide support, maintenance, upgrades, modifications, or new releases under this Agreement. If applicable and included in Schedule A, Tree AMS shall provide user with professional services as set forth in a separate professional services agreement signed by you and Tree AMS.
8. Feedback. User agrees that any feedback or ideas user provides to Tree AMS or distributors regarding any Solutions, their use or any suggested improvements, enhancements or derivatives (“Feedback“) thereto will be the exclusive property of Tree AMS and shall be deemed as Tree AMS IPR and Confidential Information. User shall not disclose or publish such Feedback or otherwise make any such information publicly available. To the extent all right, title and interest in and to all Intellectual Property Rights in the Feedback are not owned in their entirety by Tree AMS upon creation, user hereby irrevocably assigns all rights therein to Tree AMS and waives any and all rights therein including without limitation moral rights and/or rights to receive compensation and/or royalties.
9. Disclaimer of Warranty.
9.1. THE SOLUTIONS ARE PROVIDED “AS IS”, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TREE AMS DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, SECURITY AND NON-INFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOLUTION REMAINS WITH USER. TREE AMS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO ANY THIRD-PARTY HARDWARE PROVIDED TO YOU BY TREE AMS, AND YOU ACCEPT ALL RISKS WHICH MAY ARISE FROM YOUR USE OF ANY SUCH THIRD-PARTY HARDWARE.
9.1. TREE AMS DOES NOT WARRANT THAT THE SOLUTIONS WILL BE UNINTERRUPTED OR ERROR-FREE; OR THAT ERRORS/BUGS ARE REPRODUCIBLE OR THAT ERRORS/BUGS ARE REPAIRABLE AND DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOLUTIONS IN TERMS OF THEIR CORRECTNESS, USEFULNESS, ACCURACY, RELIABILITY, OR OTHERWISE. USER SHALL BE RESPONSIBLE FOR TAKING ALL PRECAUTIONS USER BELIEVES ARE NECESSARY OR ADVISABLE TO PROTECT USER AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY VIRTUE OF ANY USE OF OR RELIANCE UPON THE SOLUTIONS AND FOR VERIFYING ANY OUTPUT RESULTING FROM USE OF THE SOLUTIONS.
9.2. THE SOLUTION IS NOT DESIGNED FOR USE WITH CRITICAL OR LIFE SAVING INFRASTRUCTURES, SYSTEMS THAT CONTAIN OR PROTECT AGAINST DANGEROUS OR HAZARDOUS MATERIALS OR FORCES, NATIONAL SECURITY PURPOSES OR NUCLEAR, CHEMICAL, OR BIOLOGICAL WEAPONS.
10. Limitation of Liability. IN NO EVENT SHALL TREE AMS OR ITS AFFILIATES OR DISTRIBUTORS OR THEIR SHAREHOLDERS, MANAGERS, DIRECTORS, OFFICERS, AFFILIATES AND EMPLOYEES RESPECTIVELY BE LIABLE TO YOU OR ANY THIRD PARTY, UNDER ANY LEGAL THEORY WHETHER CONTRACT, TORT OR OTHERWISE, FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL, CONSEQUENTIAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, LOSS OF DATA INCLUDING ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOLUTION OR OTHER PECUNIARY LOSS) ARISING OUT OF SERVICES PROVIDED HEREUNDER AND/OR THE USE OF OR INABILITY TO USE THE SOLUTIONS OR ANY PART THEREOF EVEN IF TREE AMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TREE AMS SHALL HAVE NO LIABILITY FOR ANY WARRANTY, INSTALLATION SERVICES, OR USE OF THE SOLUTION. IN THE EVENT THAT DESPITE THE AFOREMENTIONED LIMITATION OF LIABILITY ANY COMPETENT AUTHORITY WILL FIND TREE AMS LIABLE, TREE AMS’S AGGREGATE LIABILITY SHALL NOT EXCEED AN AMOUNT EQUAL TO THE AGGREGATE LICENSE FEES PAID BY YOU TO TREE AMS FOR THE SOLUTION DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
11. Indemnification. You agree to defend, indemnify and hold harmless Tree AMS and anyone on its behalf, including but not limited to, all of its shareholders, managers, directors, officers, affiliates and employees, against any losses, expenses, costs, claims, damages (including reasonable attorney fees, expert fees and other reasonable costs of litigation) arising from, incurred as a result of, or in any manner related to your use of the Solutions and/or breach of this Agreement.
12. Audits. Tree AMS shall have the right to audit user to verify user’s compliance with this Agreement. User shall cooperate with Tree AMS in connection therewith including but not limited to (a) user generating a license report upon request of Tree AMS, (b) on-site inspections and/or audits by Tree AMS or an auditor on its behalf, to monitor, inspect and audit user’s use of the Solutions, during regular business hours. User specifically acknowledges that the Service may include password protection, anti-copying subroutines or other security measures designed to monitor the usage of the Service for license management purposes.
13. Termination. Tree AMS may terminate this Agreement by notice to you: (i) upon your failure to comply with any of your obligations hereunder; (ii) immediately and without notice in the following events: (a) if user attempts to transfer or assign any of its rights, liabilities or obligations under this Agreement contrary to the provisions of this Agreement; (b) failure by user to pay any of the applicable fees; (c) violation of any of the limitations set forth in Section 6.1 above. Upon termination or expiration of this Agreement: (i) user shall immediately pay Tree AMS all fees and payments, regardless of the due date of payment, (ii) the license granted to you in this Agreement shall expire and you shall cease use of the Solutions and immediately return to Tree AMS all leased Hardware, Confidential Information and Tree AMS IPR in any media and shall erase all copies of the Service. Notwithstanding the termination or expiration of this Agreement, Sections 1-4, 6, 7, 9-17 shall survive and remain in effect in perpetuity.
14. Governing Law & Jurisdiction. This Agreement shall be governed by and construed under the laws of Singapore. The parties agree that any dispute that can’t be resolved by those involved shall be submitted to the senior management of each party for attempted resolution of the dispute. Senior management shall discuss the problem and negotiate in good faith in an effort to resolve the dispute without necessity of any formal proceeding relating thereto. If senior management, within thirty (30) days of their first communication has not resolved the dispute (the day after such period expires shall be deemed the “Arbitration Date”), the parties shall immediately thereafter submit the dispute to binding arbitration in accordance with the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”). . The seat of the arbitration shall be Singapore. The Tribunal shall consist of one (1) arbitrator. The language of the arbitration shall be the English language.
15. General. (i) The Agreement and its Schedule are the entire agreement between you and Tree AMS in respect of the subject matter herein and this Agreement shall not be modified except as provided herein; (ii) Tree AMS may assign this Agreement, in whole or in part, in its sole discretion. You may not assign or otherwise transfer this Agreement or any of your rights and obligations under this Agreement to any third party without the prior written consent of Tree AMS. Any unauthorized assignment will be void and of no force or effect; (iii) unless otherwise expressly provided, no provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity other than you and Tree AMS, its affiliates and successors or assignees any rights, remedies or other benefits under or by reason of the Agreement; (iv) no failure or delay on the part of Tree AMS or its distributor hereto in exercising any right, power or remedy shall operate as a waiver thereof, any waiver granted by Tree AMS and/or a distributor hereunder must be explicit and in writing and shall be valid only in the specific instance in which given.
User and Tree AMS certify by their undersigned authorized representatives that they have read this Agreement, have the full corporate right, power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby and agree to be bound by its terms and conditions.
