1. ACKNOWLEDGMENT AND ACCEPTANCE
1.1. Please read these Terms and Conditions of Service and End User License Agreement (“TOS” or “Terms”) before using or accessing in any form or any of the products, application and/or services available through or in connection with Qwak AI products, e.g. the integration management platform for machine learning models in production (the “Products and Services”). These Terms constitute a binding agreement between the user of Qwak AI (“You”) and Qwak AI (as detailed under the “Company” field in the Order Form (as defined below) to which these TOS are incorporated to) and its affiliates (“Qwak AI”) and by executing the Order Form or by using any of the Products and Services in any form and manner you agree to abide, and that you are bound, by these Terms.
1.2. If you are entering into these TOS on behalf of a company or other legal entity, you represent that you have the authority to bind such entity, its affiliates and users to this TOS. In that case, the terms “you” or “your” shall also refer to such entity, and its affiliates, as applicable. If you do not have such authority, or if you do not agree with this TOS, you may not use the Products and Services.
ANY AND ALL USE OF THE PRODUCTS AND SERVICES SHALL BE SUBJECT TO THE FEES, FEATURES, SCOPE, DURATION AND SUCH ADDITIONAL TERMS AND CONDITIONS, WHICH ARE SPECIFIED UNDER A CORRESPONDING ORDER FORM, STATEMENT OF WORK, INSERTION ORDER OR OTHER AGREEMENTS WITH THE COMPANY OR A CORRESPONDING COMPANY RESELLER/DISTRIBUTOR (“ORDER FORM”), ATTACHED, WHICH YOU HAVE EXECUTED, SIGNED OR OTHERWISE AUTHORIZED IN CONJUNCTION WITH THE PURCHASE OF THE RIGHT TO USE THE PRODUCTS AND SERVICES. THE TERMS AND CONDITIONS OF THE ORDER FORM ARE HEREBY INCORPORATED BY REFERENCE INTO THESE TERMS, AND ANY REFERENCE TO “AGREEMENT” SHALL ALSO REFER TO THE THESE TERMS AS WELL AS TO THE ORDER FORM.
2. THE SERVICE – GRANT OF RIGHTS; RIGHT TO MODIFICATION AND SHUT DOWN
2.1. Subject to the terms and conditions hereunder, including timely payment of all applicable fees, you are hereby granted with a non-exclusive, non-transferrable, right to use the Products and Services during the term specified under the applicable Order Form attached hereto as per the scope specified herein, for your own internal use.
2.2. Other than the rights expressly licensed hereunder to you, no other rights or interest whatsoever in any of the Products and Services and/or any component thereof, are transferred or granted. Without limiting the foregoing, you may not: (i) use the Products and Services or any part thereof, for purposes other than those explicitly set forth hereunder; (ii) reverse engineer or de-compile, modify or revise Products and Services, or any part thereof, or create derivative works thereof or extract any source code from any binary provided; (iii) sub-license, resell or re-offer the Products and Services, or any part thereof or use the Products and Services to offer services to any third parties; (iv) otherwise commercially utilize the Products and Services, or any part thereof except as expressly permitted under your written agreement with Qwak AI.
2.3. You acknowledge and agree that Qwak AI has the right, at any time and for any reason redesign or modify the organization, structure, specifications, “look and feel,” navigation, features and other elements of the Products and Services and/or any part thereof, provided that such do not result in the Products and Services being materially and adversely different than the Products and Services as first made available following the execution of this Agreement.
2.4 To the extent you provide Qwak AI certain data, software and/or information (“Customer Data”), You hereby grant Qwak AI a limited, non-exclusive, non-sublicensable, non-transferable and revocable license to use, process and store such Customer Data solely in order to provide the Products and Services hereunder. To avoid any doubt, Qwak AI is a mere processor of such Customer Data and does not own or control it.
2.5 You hereby agree that Qwak AI owns, controls and may collect, disclose, publish and use in any other manner any anonymous and non-identifiable information which is related to the use in Products and Services and derives from the use of the Products and Services (for example, anonymous and non-identifiable information which is part of the Customer Data, aggregated and analytics information about the use of the Products and Services, etc.), in order to provide and improve Company's Products and Services.
3. USE OF THE PRODUCTS AND SERVICES
You agree not to sell, license (or sub-license), lease, assign, transfer, pledge, or share your rights under these Terms with or to anyone else. You also agree that you will not use (and will not allow any third party or end user to use) the Products and Services for any of the following purposes:
(i) Any unlawful, invasive, infringing, defamatory or fraudulent purpose, including but not limited to, infringing right of privacy, proprietary rights or intellectual property rights of any third parties, including without limitation copyright, trademarks, designs, patents and trade secrets; (ii) To furnish any harmful code or illegal bulk emails (spam) or attachment with the Products and Services; (iii) To use the Products and Services in a way that has a detrimental effect upon Qwak AI, its users or the Products and Services, as determined by Qwak AI at its sole discretion; (iv) To use or attempt to use the Products and Services in breach of these Terms; (v) To transmit harassing, obscene, racist, malicious, abusive, libelous, illegal or deceptive messages or files; (vi) To commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortious act; (vii) To interfere with the use of the Products and Services by other users; (viii) To alter, tamper with or circumvent any aspect of the Products and Services; (ix) To test or reverse engineer any of the Products and Services in order to find limitations or vulnerabilities unless agreed in writing and in advance by Qwak AI. (x) To modify, incorporate into or with other software, or create a derivative work of any part of the Products and Services.
You also agree not to disclose the results of any testing or benchmarking of the Products and Services to any third party, or use such results for your own competing activities or use the Products and Services in order to build or support, and/or assist a third party in building or supporting, products or services which are competitive to Qwak AI’s business.
Moreover, You acknowledge and agree that you are responsible for your use (and the use of anyone on your behalf) of the Products and Services in accordance with these Terms and all applicable laws and regulations. You are fully responsible for the control of and/or access to your account, including limiting access to user names and passwords and you agree to take all reasonable precautions to protect your user name and password and access to your account. You agree that you will immediately notify Qwak AI in the event that you discover or believe that your account or user name or password has been accessed in any unauthorized way. Qwak AI shall not be liable to you or any third party for any failure by you to prevent unauthorized access to your account.
4. USER RESPONSIBILITY FOR CONTENT
4.1. The Products and Services cannot and should not be relied upon to detect all malicious or other harmful or problematic files or data, and you are responsible for all data and content that you post and/or access, even if it was monitored, debugged or otherwise processed (“Process”) by the Products and Services.
4.2. We urge you not to access or read any suspicious files and/or information even if those were Processed using a Qwak AI product. You understand that all information (such as data files, written text, computer software, code, music, audio files or other sounds, photographs, videos or other images, etc.) which you may Process, using the Products and Services are the sole responsibility of the person from which such content originated. All such information is referred to below as the “Content”. You understand that although you are using the Products and Services you may be exposed to Content that you may find harmful, unlawful, offensive, indecent or objectionable and that you use the Products and Services at your own risk.
4.3. You agree that you are solely responsible for (and that Qwak AI has no responsibility to you or to any third party for) any Content that you access, use, transmit or display while using the Products and Services and for any consequences that your actions may have (including any loss or damage which Qwak AI may suffer) by doing so.
4.4. You acknowledge that the Products and Services do not operate as an archive or file storage service and Qwak AI does not store all of your data provided during the Term, and therefore you are solely responsible for the backup of your data.
5. ACCURACY AND RETENTION OF INFORMATION; COMPLIANCE WITH LAWS
5.1. You agree that to your best knowledge, any information you give to Qwak AI will always be accurate, correct and up to date.
5.2. You agree to use the Products and Services only for purposes that are permitted by (a) the Terms and (b) any applicable law, regulation in the relevant jurisdictions.
In consideration for the rights and services granted under this Agreement, you shall pay to Qwak AI the fees specified under the Order Form in accordance with the payment and other terms specified thereunder.
Notices to you will be addressed via contact information provided by you unless you have notified Qwak AI of any changes.
Qwak AI agrees at its sole cost and expense to indemnify, defend and hold you harmless your officers, directors, employees, contractors and permitted successors and assigns from and against any and all third party claims, damages, costs, liabilities or expenses incurred (including reasonable attorneys’ fees), finally awarded against you in a settlement or by a court, to the extent arising from any claims, suits or proceedings brought by third parties alleging that the Products and/or Services infringe or misappropriate any patent, copyright, trademark, trade secret or other intellectual property rights of any third party.
The above duty to indemnify is contingent on you providing Qwak AI without delay with a notice of any such claim, allowing Qwak AI to control the defense and settlement of any such claim and reasonably cooperating (at Qwak AI's expense) with Qwak AI in connection with the foregoing.
Qwak AI shall have no duty to indemnify to the extent that the liability arises from: (i) modification to the Products and Services or any part thereof made not by Qwak AI; (ii) use of the Products and Services not in accordance with this Agreement and/or any documentation provided by Qwak AI; or (iii) where the liability arises from the combination of the Products and Services with other product, software or platform, where the Products and Services standing-alone would not have caused such liability.
You shall defend, indemnify, and hold harmless Qwak AI, its licensors, affiliates, distributors and resellers, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses costs and expenses (including reasonable attorney’s fees) arising out of or relating to any third party claim concerning your use of the Services and or Products in breach of these Terms or violation of applicable law by you or any of your end users. Qwak AI shall promptly provide You with a written notice regarding such claim, however, failure to provide such prompt notice shall not relieve You from your indemnification obligations, unless and to the extent such failure to notify prejudiced your ability to defend the claim.
8. DISCLAIMER OF WARRANTIES AND LIABILITIES
EXCEPT AS OTHERWISE EXPLICITLY AGREED HEREIN, THE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER THE TERMS, THE ORDER FORM, NOR ANY DOCUMENTATION FURNISHED UNDER THEM ARE INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE. YOU ACKNOWLEDGE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCTS AND SERVICES IS WITH YOU. SHOULD THE PRODUCTS AND SERVICES PROVE INADEQUATE IN ANY WAY, YOU AND NOT QWAK AI ASSUME THE ENTIRE COST OF ANY COSTS OR DAMAGES INCURRED BY YOU. QWAK AI DOES NOT WARRANT THAT YOU WILL HAVE UNINTERRUPTED OR ERROR-FREE USE OF THE PRODUCTS AND SERVICES, THAT ANY DATA SENT BY OR TO YOU WILL BE TRANSMITTED IN SECURE OR UNCORRUPTED FORM OR WITHIN A REASONABLE OR DEFINED PERIOD OF TIME, OR THAT THE PRODUCTS AND SERVICES WILL PREVENT FROM OCCURRING THAT WHICH THEY ARE DESIGNED TO PREVENT. YOU ACKNOWLEDGE THAT ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED, RECEIVED OR SUBMITTED THROUGH THE PRODUCTS AND SERVICES ARE AT YOUR SOLE RISK AND THAT QWAK AI WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY HARM OR DAMAGE TO YOU OR YOUR PROPERTY (INCLUDING ANY DATA, PERSONAL COMPUTER EQUIPMENT OR STORAGE MEDIA). QWAK AI IS NOT RESPONSIBLE FOR THE CONTENT OR INFORMATION WHICH ARE PROCESSED THROUGH QWAK AI’S PRODUCTS AND SERVICES.
9. EXPORT CONTROL COMPLIANCE WITH LAWS
The Products and Services delivered to you under this Agreement may be subject to U.S. export control laws and regulations and may also be subject to import and export laws of the jurisdiction in which it was obtained, if outside of the U.S. You shall abide by all applicable export control laws, rules and regulations applicable to the Products and Services. Without derogating from the generality of the foregoing, you agree that you will not export, re-export, or transfer the Products and Services, in whole or in part, to any country, person, or entity subject to U.S. export restrictions. To avoid any doubt, the use of the Products and Services, in whole or in part, in any country, not in accordance with U.S. or any other applicable jurisdiction export restrictions is not allowed. You specifically agree not to export, re-export, or transfer the Products and Services (i) to any country to which the U.S. has embargoed or restricted the export of goods or services, or to any national of any such country, wherever located, who intends to transmit or transport the products back to such country; (ii) to any person or entity who you know or have reason to know will utilize the Products and Services or portion thereof in the design, development, production or use of nuclear, chemical or biological materials, facilities, or weapons; or (iii) to any person or entity who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. You agree that you shall use the Products and Services solely in a manner that complies with all applicable laws in the jurisdictions in which you use the Products and Services, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.
10. LIMITATION OF LIABILITY
EXCEPT FOR A EITHER PARTY’S WILLFUL MISCONDUCT, GROSS NEGLAGENCE OR BREACH OF INTELLECTUAL PROPRTY RIGHTS, UNDER NO CIRCUMSTANCES WHATSOEVER WILL EITHER PARTY (NOR THEIR RESPECTIVE LICENSORS, AFFILIATES, DISTRIBUTORS, RESELLERS AND/OR REPRESENTATIVES), WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, BE RESPONSIBLE OR LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS AND LOST BUSINESS OPPORTUNITIES), SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES THAT RESULT FROM OR RELATE IN ANY MANNER WHATSOEVER TO THESE TERMS (INCLUDING TO AVOID ANY DOUBT ANY RELATED ORDER FORM AND/OR AGREEMENT).
EXCEPT FOR A EITHER PARTY’S WILLFUL MISCONDUCT, GROSS NEGLAGENCE, BREACH OF INTELLECTUAL PROPRTY RIGHTS OR INDEMNIFICATION OBLIGATIONS UNDER THESE TERMS, IN NO EVENT SHALL THE AGGREGATE TOTAL LIABILITY OF EITHER PARTY UNDER THESE TERMS (INCLUDING TO AVOID ANY DOUBT ANY RELATED ORDER FORM AND/OR AGREEMENT) EXCEED: THE AMOUNTS PAID BY YOU TO QWAK AI IN THE 12 MONTH PERIOD PRECEDING THE EVENT OF LIABILITY; THE LIMITATIONS IN THIS SECTION ARE COMPREHENSIVE AND THE EXAMPLES GIVEN ARE NOT EXHAUSTIVE. THE LIMITATIONS IN THIS SECTION ARE SEPARATE AND INDEPENDENT OF ANY OTHER LIMITATIONS IN THESE TERMS AND SHALL NOT FAIL IF SUCH OTHER LIMITATION OR REMEDY FAILS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY IN SUCH CASE.
Qwak acknowledges and agrees that you own and shall continue to own all Customers Data.
You acknowledge and agree that Qwak AI is the exclusive owner of, and shall retain all right, title, and interest in, the Qwak AI Products and Services and all the underlying software and technology, as well as all brands, trademarks and logos related to the foregoing, including, without limitation, any and all derivatives, enhancements, modifications and/or improvements thereto, and any and all Intellectual Property Rights or proprietary rights under any and all of the foregoing.
In addition, subject to your ownership rights in the Customer Data, Qwak AI owns and shall retain all rights, including any and all Intellectual Property Rights, in and to the data and information related to the Products (other than Customer Data) (“Usage Data”) (i) used, processed or generated be Qwak (excluding for the avoidance of any doubt, data that is generated by the Product and is not transferred to Qwak) or (ii) stored within Qwak’s servers and systems. For the avoidance of any doubt, Usage Data shall not include Customer Data or data aggregated only from Customer Data but may include data and insights regarding the use of the Product.
“Intellectual Property Rights" means all the following, worldwide: (a) copyrights, including moral rights, registrations and applications for registration thereof; (b) computer software programs, data and documentation; (c) patents, patent applications and all related continuations, divisional, reissue, design patents, applications and registrations thereof, certificates of inventions; (d) trademarks, trademark applications, domain names, trade secrets and Confidential Information (as defined below).
Unless a non-disclosure Agreement was executed between the Parties that governs performance of this Agreement, the following shall apply:
Each party will protect Confidential Information disclosed by the other party by (i) not disclosing it to third parties, (ii) preserving its confidentiality with the same level of care it applies to its own similar types of Confidential Information, and always by taking reasonable steps to preserve confidentiality, and (iii) using it only for the performance of this Agreement. A party will disclose the other party’s Confidential Information only to its employees and consultants who need to know such information to perform under this Agreement, and only after informing such recipients that the information must be protected as confidential and may be used only for the performance of this Agreement. A party is responsible for any disclosure or misuse of Confidential Information by its employees or consultants. A receiving party may, without breaching this Agreement, disclose Confidential Information disclosed by the other party to the extent required to comply with a court order or applicable law or regulation provided that if a receiving party becomes subject to such a requirement, it must notify the disclosing party as soon as possible and, in any case, before it makes the required disclosure (if such notice is allowed under applicable law) and it must cooperate with the disclosing party (if requested, and at the disclosing party’s expense) to seek a protective order or similar protection for its Confidential Information. The receiving party will disclose only such information as is legally required and will use commercially reasonable efforts to obtain confidential treatment for any Confidential Information that is so disclosed. Each party acknowledges that money damages may not adequately protect the disclosing party against actual or threatened breach of this Agreement and that such breach would result in irreparable harm to the disclosing party. Because of this, a disclosing party may pursue court orders to protect its Confidential Information without having to provide proof of actual damages.
“Confidential Information” means all non-public information or materials, including information and materials disclosed prior to the date of this Agreement, that are marked as confidential, orally described as confidential, or should reasonably be understood to be confidential, However, Confidential Information, that is not Personal Information (as such term is defined under applicable law), does not include anything that (i) was previously known to the receiving party without any confidentiality obligation, (ii) is or becomes publicly known through no wrongful act of the receiving party, (iii) was rightfully received from a third party without any confidentiality obligation to that third party, or (iv) was independently developed by the receiving party without using any Confidential Information.
13. PROFESSIONAL SERVICES
Professional services related to the Products and Services (e.g. installments services, maintenance, adaptation, training and other services designated as such in the applicable Order Form.) shall be provided if and to the extent agreed upon in the applicable Order Form. All professional services may be rendered whether by Qwak AI or by anyone on its behalf. The terms of the professional services shall be determined under the Order Form or under a separate Agreement.
Unless otherwise agreed in the applicable Order Form: (i) you acknowledge and agree that Qwak AI owns all right, title and interest in and to any documentation, training materials, designs, discoveries, inventions, know-how, techniques, fixes, patches, work-arounds, upgrades, service packs, customizations, modifications, enhancements or derivative works of the Products and Services provided by Qwak AI or anyone on its behalf (collectively, the “Work Product”). The Work Product is licensed to you under the terms of this Agreement, during the Term, on a nonexclusive, non transferable, non-sublicensable, worldwide, in the Territory basis., and you are granted no title or ownership rights in any Work Product, in whole or in part unless explicitly stated otherwise in the Order Form.
Unless otherwise agreed in writing all professional services shall be provided on Qwak AI’s normal working hours and at the location determined between the parties (and if not determined, all services may be provided off prem via phone and/or remote connection).
The terms of this Agreement, including in connection with limitation of warranties and liabilities shall apply on the services provided and any related Work Product.
14. FORCE MAJEURE
Neither party shall be deemed to be in breach of this Agreement or otherwise liable to the other party for any delay in performance or non-performance of any obligations under this Agreement to the extent that the delay or non-performance is due to Force Majeure provided that the relevant party has used reasonable endeavors to avoid and mitigate the effects of the Force Majeure and to carry out its obligations under this Agreement in any other way that is reasonably practical. "Force Majeure" means any cause preventing either party from performing all or any of its obligations which arise from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the party so prevented, including without limitation strikes, lockouts, other industrial disputes or other restraints or stoppages of labor of suppliers, acts of god, war, riot, civil commotion, terrorism, malicious damage, pandemic or extreme weather or environmental conditions.
Any notices or communications under these Terms to you will be addressed to the electronic address specified in the Order Form, as you may update such information from time to time, and will be deemed delivered immediately upon sending in the case of electronic mail and three days after mailing in the case of standard written mail. Notices to Qwak AI shall be addressed to Qwak AI, 94 Yigal Alon st. Tel-Aviv, Israel, or to such other address as Qwak AI may provide to you.
No Party may assign its rights or delegate its duties or obligations under this Agreement without the other Party’s prior written consent, not to be unreasonably withheld. Such consent shall not, however, be required, in connection with an assignment to a successor in interest, or in connection with any merger, consolidation, reorganization or restructuring, or the sale of substantially all of a Party’s assets.. Any assignment in breach of this Section 17 shall be void and null.
The Terms and the relationship between you and Qwak AI are governed by the laws of the State of Israel without regard to its conflict of law provisions. Any dispute or claim arising out of or in connection with the Terms will be submitted to the exclusive jurisdiction of the competent courts in the State of Israel. Qwak AI’s failure to exercise or enforce any right or provision of the Terms will not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and agree that the other provisions of the Terms remain in full force and effect. Neither party to the Terms will be liable to the other for any delay or failure in performance under the Terms resulting directly or indirectly from acts of nature or causes beyond its reasonable control. The Terms (including any Order Form and exhibits and schedules thereto) constitutes the entire agreement between the parties with respect to the Service and supersede all previous proposals, both oral and written, representations, writings, and all other communications between the parties.