(Software As A Service Subscription)
These Terms and Conditions (Software As A Service Subscription) (the “Agreement” ) are between insoundz Ltd., an Israeli private company number 514974203 (“insoundz”) and you – (i) either the legal entity or the individual identified by the details specified on the Final Quote (as defined below) (the “Organization”) or (ii) an individual (employee or otherwise) who is explicitly authorized by Organization to use the Software, for or on behalf of the Organization and for whom subscriptions to a Product have been purchased (“User” or “End User”). The terms “you” and “your” will collectively apply to such Organization and User.
By executing the Final Quote or otherwise using the PRODUCT, YOU acknowledge that you have read this Agreement, that YOU understand it, and that YOU agree to be bound by the terms herein. If YOU do not agree to any of the terms of this Agreement, you MAY NOT use the PRODUCT IN ANY MANNER WHATSOEVER.
As used in this Agreement, the following terms will have the meanings set forth below:
“Documentation” means all explanatory materials and any documentation related to the Product, including, without limitation, any description of the Product, its specification, description of properties, control or interface in which the Product is used, a manual of the Product or any description of the correct use of the Product.
“Effective Date”means the first day of the Subscription Period, as defined in the Final Quote.
“Fees”means the fees, charges and payments set forth in the Final Quote.
“Final Quotemeans the duly executed online or hardcopy proposal form, specifying the Organization’s details and identifying the particular Software to which an access and use subscription, a “POC” trial or an evaluation, is sought, and related Fees.
“Product” means the Software.
“Software” means: (i) insoundz’s cloud based audio enhancer API solution software accessed by the Organization online, as well as any improvements, modifications, enhancements, bug fixes, updates, upgrades and future versions thereto if and to the extent insoundz makes available to you; and (ii) any other content of disks, CD-ROM, DVD medium, email reports and all their attachments, if any, related to this Agreement; and (iii) the Documentation. Any reference to the term “Software” includes the Software as a whole and each of its components (or any part thereof)
“Support Services”means the maintenance and support services regarding the Product, as provided by insoundz during the term of the Subscription Period, in exchange for the applicable Fees, as detailed in the section below titled “Support Services”.
“Third Party License”means a license agreement governing a particular Third Party Code.
“Third Party Code” means software programs, firmware and middleware licensed by third parties, and not insoundz.
“Subscription Period” means the period commencing on the Effective Date and ending (i) at its expiration (as defined in the Final Quote); or (ii) upon termination of this Agreement, whichever is earlier.
2.1 This Section 2 applies only if and to the extent that the Final Quote expressly indicates that you have procured a subscription to the Software.
2.2 The Software will be available to Organization online or by any remote means on a Software-as-a-Service basis.
2.3 Subject to the terms and conditions of this Agreement, upon the Organization’s payment of the Organization’s full payment of all applicable Fees specified in the final quote, insoundz grants you a limited, non-transferable, non-exclusive, non-assignable, revocable right to access and use the Software as of the Effective Date, strictly internally within the Organization.
2.4 The Software Subscription shall allow use of the Software, through no more than the number of User subscriptions and number of minutes of use per month (as the case may be) as specified in the Final Quote ( “Yearly Files Quota” ). No other use of the Software not specified in this Agreement, including use by any other employees, agents, contractors, consultants, representatives, personnel or other parties or individuals of or on behalf of the Organization or its affiliates or subsidiaries, shall be permitted.
3.1 This Section 3 applies in lieu of the above sections “SOFTWARE SUBSCRIPTION” only if and to the extent the Final Quote or other written confirmation from insoundz expressly indicates that you are provided with a POC trial or evaluation access to the Software.
3.2 Subject to the terms and conditions of this Agreement, you may use the Software, without charge, strictly for your Organization’s internal use, for non-commercial proof-of-concept evaluation purposes only and for up to the limited period from the Effective Date expressly agreed to in writing by insoundz and as applicable to the agreed tier (the “Trial Period”). Your right to use the Software as provided in this Section is non-transferable, non-exclusive, non-assignable and revocable.
3.3 Upon the elapse of the Trial Period, the Software Subscription will automatically commence in accordance with the applicable tier agreed upon in the Final Quote, in which case the Section “SOFTWARE SUBSCRIPTION”, will then enter into force in lieu of this Section.
4.1 Though insoundz uses efforts to ensure the availability of the access to its Support Services, as well as the proper operation of the Product, you acknowledge and agree that there may be times when the Support Service will not be available or when the Product will not operate properly. It is therefore agreed that insoundz shall not be liable for any unavailability of the Support Service, or for the improper operation of the Product, and you hereby waive any claims regarding such eventualities.
4.2 An Organization account will be created in connection with Organization’s use of the Product (the “Account”), to be accessed and/or used solely by employees, agents and independent contractors of the Organization who are explicitly authorized by Organization to use the Software and for whom subscriptions to a Product have been purchased. Organization acknowledges and agrees: (i) to keep, and ensure that its Users keep all Account login details and passwords secure at all times; and (ii) to promptly notify insoundz in writing if Organization becomes aware of any unauthorized access or use of Organization’s Account or the Software. Organization shall ensure that its Users comply with the terms of this Agreement and shall be solely responsible for any breach of this Agreement by a User.
4.3 Restrictions on Use. Organization shall only access the Software via insoundz’s designated WebApp or API and in connection with your Account. You must not, and shall not allow any User or any other third party to: (i) circumvent, disable or otherwise interfere with security-related features of the Software or features that enforce limitations on use of the Software; (ii) violate or abuse password protections governing access to the Software; (iii) allow any third party to use the Software except as permitted herein; (iv) sell, rent, lease, license or timeshare the Software or use it in any service bureau arrangement; (v) copy, modify, reverse engineer, decompile, disassemble or derive, or attempt to derive, the source code of, the Software or any components thereof; (vi) use the Software to develop a competing service or product; (vii) use any automated means to access the Software; (viii) interfere or attempt to interfere with the integrity or proper working of the Software; (ix) access, store, distribute, or transmit during the course of its use of the Software any Malicious Code or unlawful, threatening, obscene or infringing material; (x) use the Software in a manner that would violate applicable data privacy laws or for any other unlawful purpose; (xi) allow any third party other than the subscribed Users specified in the Final Quote to use the Software and/or (as the case may be) violate the Yearly Files Quota; or (xii) use the Software in any other unlawful manner or in breach of this Agreement. For the purposes of this Agreement, “Malicious Code” means software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system. Your breach of this Section 4.3 shall be deemed a material breach of this Agreement.
4.4 You may not use the Product in whole or in part for any purpose except as expressly provided under this Agreement. Any unauthorized use of the Product without insoundz’s prior written consent is expressly prohibited.
5.1 In the course this engagement, insoundz will process personal information about individuals as such may be contained in the data transmitted through email, web downloads, and website uploads. Such processing activities shall be conducted in accordance with Data Processing Addendum. An up-to-date version of which is available on the insoundz website https://insoundz.com/privacy-policy/.
5.2 You further agree that insoundz and its affiliates may use such information in an anonymized form for its internal purposes, including for the purpose of improving and enhancing insoundz’s products and services. Except as provided below, insoundz will not disclose such information in any manner other than in aggregate or anonymous form, which does not identify individuals.
5.3 To the extent requested by insoundz, you further agree to provide insoundz with reports detailing any bugs, error, defects and faults in the Product, as well as any other information relating to any problem or issue with respect to the Product and any other services provided to you by insoundz, all in the form and substance sufficient to meet insoundz’s requirements. insoundz may use such information to perform analysis (including statistical analysis) in order to make decisions on various issues, including the improvement and enhancement of insoundz’s products and services, including without limitation the Product.
5.4 In cases of zero-day detections, insoundz may contact you and update you of attacks prevented on your systems prior to such detection.
5.5 insoundz agrees to implement reasonable security measures, but no less than industry standard security procedures, to protect your data throughout the term of the Subscription Period.
insoundz has made efforts to design and develop the Product using specifications by pertinent authorities regarding these types of products. However, you acknowledge and agree that insoundz will not be responsible for any failure of the Product to protect your data, or filter or store files, or for the deletion, corruption, or loss of any data or files sanitized using the Product.
Intellectual Property Rights
7.1 You have been granted with an access right to use the Software and it has not been sold to you under the terms herein nor does it convey to you an interest in or to the Product, but only a limited access right of use (as the case may be) revocable in accordance with the terms herein.
7.2 You hereby acknowledge that, except as expressly provided otherwise in this Agreement, the Product is the exclusive property of insoundz and its licensors and that all right, title and interest, including all Intellectual Property Rights (such as copyright, patents, trade secrets and trademarks) in and to the Product are and will at all times remain with insoundz and its licensors. The Product is protected under copyright laws and international treaties.
7.3 You hereby further acknowledge that any related content, Documentation and services provided or made available by insoundz hereunder, including all modifications, upgrades, customizations and derivative works (whether or not permitted under this Agreement) thereof, are and shall remain the exclusive property of insoundz and its licensors. insoundz and its licensors reserve any and all rights not expressly granted in this Agreement.
“Intellectual Property Rights” means: (i) patents and patent applications throughout the world, including all reissues, divisions, continuations, continuations-in-part, extensions, renewals, and re-examinations of any of the foregoing; (ii) common law and statutory trade secrets and all other confidential or proprietary or useful information that has independent value, and all know-how, in each case whether or not reduced to a writing or other tangible form; (iii) all copyrights, whether arising under statutory or common law, whether registered or not; (iv) all trademarks, trade names, corporate names, company names, trade styles, service marks, certification marks, collective marks, logos, and other source of business identifiers, whether registered or not; (v) moral rights in those jurisdictions where such rights are recognized; and (vi) all other intellectual property and proprietary rights, and all rights corresponding to the foregoing throughout the world.
7.4 You shall not remove, alter, cover, or distort any copyright, trademark, or other proprietary rights notices placed by insoundz in or on the Product. You may not use any of insoundz’s trademarks, service marks, product names or trade names without insoundz’s express written consent.
7.5 Any feedback provided by you to insoundz regarding the Product, its use or any suggested improvements, enhancements or derivatives ( “Feedback” ) is welcome by insoundz. Organization is not required to provide Feedback, however, to the extent that it does so, such Feedback shall be solely owned by insoundz, and shall not, under any circumstance constitute Organization’s Confidential Information (as defined below). Organization acknowledges that insoundz may use such Feedback in any manner insoundz sees fit, without payment of royalty or any other consideration.
Confidentiality
7.6 Each party may have access to certain non-public and/or proprietary information of the other party, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other party, whether written or oral, and any such other information that, regardless of the manner in which it is furnished and given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information” ). Each party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other party’s Confidential Information from disclosure to a third party. Neither party shall use or disclose the Confidential Information of the other party except as expressly permitted under this Agreement or by applicable law. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing party. The terms of this Agreement are deemed insoundz’s Confidential Information, however, Organization may disclose the terms herein to its advisers, subject to a confidentiality undertaking similar to the above.
7.7 You shall notify insoundz immediately if you become aware of a third party who has gained access to any confidential information of insoundz or to your login details.
9.1 The Product may contain or use Third Party Code, including those detailed in the “Open Source – Notice of Acknowledgments” https://insoundz.com/open-source-list/. To the extent so stipulated by the Third Party License that governs each Third Party Code, each such Third Party Code is directly licensed to you from its respective licensors, not sublicensed from insoundz, and is subject to its respective Third Party License, not to this Agreement. If, and to the extent, a Third Party License requires that this Agreement effectively impose, or incorporate by reference, certain disclaimers, provisions, prohibitions or restrictions, then such disclaimers, provisions, prohibitions or restrictions shall be deemed to be imposed, or incorporated by reference into this Agreement, as required, and shall supersede any conflicting provision of this Agreement, solely with respect to the corresponding Third Party Code which is governed by such Third Party License.
9.2 insoundz is not, and shall not be, liable to you, for any errors, malfunctions or bugs in any Third Party Code, or any consequences resulting therefrom. Your sole and exclusive remedy for any such errors, malfunctions or bugs, is insoundz’s performance of Support Services, if and to the extent you are entitled to receive them pursuant to the terms of this Agreement.
9.3 If, and to the extent, a Third Party License requires that the source code of its corresponding Third Party Code be made available to you, and such source code was not delivered to you with the Product, then insoundz hereby extends a written offer, valid for the period prescribed in such Third Party License, to obtain a copy of the source code of the corresponding Third Party Code, from insoundz. To take up this offer, please contact support@insoundz.com.
10.1 During the Subscription Period, you are entitled to receive technical support for the most up-to-date version of the Software only in the language of the country where the Software was obtained, and subject to the terms herein. Throughout the term of the Subscription Period you shall have the right to use the following services, subject to the terms herein:
a) Support and Maintenance. insoundz will provide industry standard support and maintenances services following Organization’s written notice to insoundz that the Product is failing to comply with the Documentation.
b) Updates. Updates shall include each new version or change of the Software, which insoundz may release on its servers (the “Update”). insoundz will determine, in its discretion, the frequency and scope of Updates.
c) Exclusions. insoundz shall not be obligated to provide any Support Services if you have failed to pay the applicable Fee, or if insoundz has reason to believe that a reported error: (i) results from any unauthorized interference with the Software, its source code, or by the use of incorrect parameters or settings of the Software; (ii) has occurred by the fault of unauthorized servicing staff, or by the use of the Software in non-compliance with the Documentation; (iii) has already been resolved through the issuance of the Update; or (iv) is otherwise excluded from support in this Agreement.
d) Support Changes. You acknowledge and agree that insoundz may, at any time, in its sole discretion and without prior notice, modify, discontinue or terminate the support services, and establish revised practices and policies concerning the use of the Product or the Support Services.
e) Product Changes. insoundz may change the Product layout and design and the availability of the content and functions included therein or may change the form, features or nature of the Product, from time to time, without giving the Organization any prior notice. Organization hereby agrees and acknowledges insoundz is not responsible for any errors or malfunctions that may occur in connection with the performance of such changes.
f) Servers. Organization acknowledges and agrees that insoundz may provide the Product from any server/datacenter forming part of its services anywhere in the world and may, at any time, transfer the provision of the Product from one server to another.
11.1 This Agreement shall commence on the Effective Date and shall terminate upon the end of the Subscription Period, unless terminated earlier pursuant to the provisions of this Section, the “Proof of Concept / Evaluation Trial” Section or the “Support Services” Section.
11.2 If the Subscription Period has ended, you may only resume it by paying insoundz the Fees retroactively applicable from the end of the Subscription Period, and up through the forthcoming Subscription Period. In such case, this Agreement shall survive and continue to bind you in full force and effect. This paragraph does not apply in the event of a POC or evaluation trial as provided in the “Proof of Concept/Evaluation Trial” Section.
11.3 Either party may terminate this Agreement upon a thirty (30) day, prior written notice of a material breach to the other party, if the other party fails to cure such material breach, within the prior notice period.
11.4 In addition, if insoundz believes that you are using the Software in a manner that may cause harm to insoundz or any third party, then insoundz may, without derogating from insoundz’s right to terminate this Agreement for any breach hereof, suspend your access to and use of the Software until such time as insoundz believes the threat of harm, or actual harm, has passed.
11.5 Upon any termination or expiration of this Agreement: (a) unless as expressly provided otherwise above, any and all rights and licenses granted to you under this Agreement shall terminate and you shall cease all use of the Product and the Support Services and immediately return to insoundz all Confidential Information in any media; and (b) insoundz shall be entitled, in its own discretion, to purge your account information.
11.6 Termination of this Agreement does not entitle you to any refund of any of the fees you paid and does not relieve you of any payment obligations. Termination of this Agreement by insoundz will be in addition to, and not in lieu of, any equitable or other remedies available to insoundz.
11.7 The following sections of this Agreement will survive any termination or expiration of this Agreement: Proprietary Rights and Confidentiality (Section 7), Third Party Code (Section 9), Indemnity (Section 12), Warranties and Liability Limitations (Section 13), General (Section 14).
To the maximum extent permitted by law, you agree to indemnify, defend and hold harmless, insoundz and its directors, officers, employees, agents, advisors, consultants, subcontractors and assignees, at your own expense and immediately after receiving a written notice thereof, from and against any damages, loss, costs and expenses, including attorney’s fees and legal expenses, resulting from any third party plea, claim, allegation or demand, arising from, or in connection with your use of the Product or the Support Service or your breach of this Agreement.
13.1 EXCEPT FOR THE LIMITED WARRANTY SET FORTH HEREIN, THE PRODUCT IS PROVIDED “AS IS”, “WITH ALL FAULTS”. TO THE MAXIMUM EXTENT PERMITTED BY LAW, INSOUNDZ DISCLAIMS ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OF THE PRODUCT, OR THE SUPPORT SERVICES, THE QUALITY OR ACCURACY OF THEIR PERFORMANCE, THEIR FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT. INSOUNDZ DOES NOT WARRANT THE FUNCTIONALITY OF THE PRODUCT WILL MEET ANY REQUIREMENTS, SPECIAL SPECIFICATIONS OR NEEDS YOU MAY HAVE OR THAT THE PRODUCT OR THE SUPPORT SERVICES WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES. ALSO, INSOUNDZ DOES NOT REPRESENT OR WARRANT THAT THE PRODUCT OR THE SUPPORT SERVICES WILL OPERATE PROPERLY WITH ANY OTHER SOFTWARE, HARDWARE, SYSTEM OR DATA; INSOUNDZ WILL NOT BE LIABLE OR RESPONSIBLE FOR: (A) ANY TECHNICAL PROBLEMS OF THE INTERNET (INCLUDING WITHOUT LIMITATION SLOW INTERNET CONNECTIONS OR OUTAGES); OR (B) ANY ISSUE THAT IS ATTRIBUTABLE TO ORGANIZATION’S HARDWARE OR SOFTWARE OR ORGANIZATION’S INTERNET OR DATA SERVICE PROVIDER. INSOUNDZ DOES NOT WARRANT OR REPRESENT THAT PRODUCT, THE SUPPORT SERVICES, INSOUNDZ’S SERVER OR ANY DATA OR FILES CONTAINED THEREIN ARE NOT HARMFUL. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING STATEMENTS REGARDING CAPACITY OR SUITABILITY FOR USE OR PERFORMANCE OF THE SOFTWARE, WHETHER MADE BY INSOUNDZ’S STAFF, DISTRIBUTORS OR OTHER THIRD PARTIES, SHALL BE DEEMED TO BE A WARRANTY BY US FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF INSOUNDZ WHATSOEVER.
13.2 NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE CUMULATIVE LIABILITY OF INSOUNDZ, AND ITS EMPLOYEES, DIRECTORS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON THEIR BEHALF, TO YOU OR ANY OTHER PARTY FOR ANY DIRECT DAMAGE RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PRODUCT OR THE SUPPORT SERVICES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY)) SHALL NOT EXCEED THE FEES YOU PAID TO INSOUNDZ (IF ANY) IN THE TWELVE MONTHS PRECEDING THE EVENT PURPORTEDLY GIVING RISE TO THE DAMAGE. IN NO EVENT SHALL INSOUNDZ, ITS EMPLOYEES, DIRECTORS, SHAREHOLDERS, ADVISORS, OR ANYONE ACTING ON ITS BEHALF BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL, SPECIAL, EXEMPLARY, PUNITIVE OR STATUTORY DAMAGES OR LOST PROFITS OR BUSINESS INFORMATION, EVEN IF INSOUNDZ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SOLE LIABILITY OF INSOUNDZ, ITS EMPLOYEES, DIRECTORS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON THEIR BEHALF, AND YOUR EXCLUSIVE REMEDY, FOR ANY CLAIMS REGARDING THE PRODUCT’S PERFORMANCE, AVAILABILITY, ERRORS OR MALFUNCTIONS, IS THE PERFORMANCE OF INSOUNDZ’S OBLIGATIONS OF SUPPORT SERVICES (TO THE EXTENT SUCH OBLIGATIONS APPLY PURSUANT TO THIS AGREEMENT).
13.3 INSOUNDZ SHALL HAVE NO LIABILITY FOR DAMAGES INCURRED OR SUMS PAID BY THE ORGANIZATION, DUE TO ANY FAULT OF THE ORGANIZATION OR ANY THIRD PARTY, OR BY ANY HARMFUL COMPONENTS (SUCH AS COMPUTER VIRUSES, WORMS, COMPUTER SABOTAGE, OR CYBER ATTACKS).
14.1 You may not assign this Agreement, in whole or in part, without the prior written consent of insoundz. Any purported assignment without insoundz’s prior written consent is void. insoundz may assign and delegate this Agreement in its entirety, including all right, duties, liabilities, performance and obligations herein, upon notice to you and without obtaining your consent, to a third-party. By virtue of such assignment, the assignee assumes insoundz’s stead, including all right, duties, liabilities, performance and obligations, and insoundz shall be irrevocably released from the same.
14.2 This Agreement shall be construed and governed in accordance with the laws of the State of Israel, regardless of its conflict of laws, rules, and the competent courts of Tel-Aviv shall have sole and exclusive jurisdiction over any dispute under this Agreement or otherwise related to the Product or the Support Services, provided that insoundz may apply to any other court as it deems fit in order to obtain emergency or injunctive relief. Notwithstanding the foregoing, insoundz may lodge a claim against you pursuant to the indemnity clause above, in any court adjudicating a third party claim against insoundz.
14.3 Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof. This Agreement represents the entire agreement between you and insoundz concerning the Product and the Support Services, and it supersedes any prior proposal, representation, or understanding between the parties. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
14.4 This Agreement may not be altered except by agreement in writing executed by an authorized representative of each party.
14.5 If you have any questions regarding this Agreement, please send inquiries via elecronic mail to: support@insoundz.com.