ESL’s Mandatory Fields (“MF”) – End User License Agreement
[V.1 April 2023]
This EULA is between you (“you” or “Customer”) and E.S.L Ltd. (“Publisher”) and governs your use of the MF, whether procured directly from Publisher or through monday’s Marketplace, or any additional or alternate marketplace that Publisher may place in the MF (“Marketplace”).
By agreeing to this Agreement, you represent and warrant that you have the authority to accept this Agreement, and you also agree to be bound by its terms.
This Agreement applies to all Orders entered into under this Agreement.
|Both parties acknowledge that any Marketplace operator that the MF may be placed in, is not a party to this Agreement, nor in anyway responsible for the MF or for the parties’ actions or obligations under this Agreement.|
This Agreement is in English only. Any translation of this Agreement into another language is for conveyance only and without legal effect.
- License grant. MF is licensed and not sold. Subject to Customer’s compliance with this Agreement, Publisher grants Customer for limited duration as set below in section 1 (b) a nonexclusive, personal, nontransferable, and limited license to use the MF solely for Customer’s own use and business purposes.
- Duration of licenses. License is granted on a subscription basis (minimum period of 12 months unless specified otherwise in the Order Form) and it will expire at the end of the applicable subscription period set forth in the Order, unless renewed or previously terminated as set in section IX below.
- End Users. Customer will control access to and use of the MF by End Users and is responsible for any use of the MF that does not comply with this Agreement.
- Affiliates. Customer may order MF for use by its Affiliates. If it does, the licenses granted to Customer under this Agreement will apply to such Affiliates, but Customer will have the sole right to enforce this Agreement against Publisher. Customer will remain responsible for all obligations under this Agreement and for its Affiliates’ compliance with this Agreement and any applicable Order(s).
- Reservation of Rights. Publisher reserves all rights not expressly granted in this Agreement. MF is protected by copyright and other intellectual property laws and international treaties. No rights will be granted or implied by waiver or estoppel. Rights to access or use MF on a device do not give Customer any right to implement Publisher’s intellectual property in the device itself or in any other software or devices.
- Restrictions. Without derogating from any other provision of this EULA, Customer may not:
(1) copy, modify, reverse engineer, decompile, or disassemble the MF, or attempt to do so;
(2) install or use any third-party software or technology in any way that would subject Publisher’s intellectual property or technology to any other license terms;
(3) work around any technical limitations in the MF or restrictions in Documentation;
(4) separate and run parts of the MF on more than one device;
(5) use the MF for any unlawful purpose;
(6) transfer, distribute, sublicense, rent, lease, or lend the MF, in whole or in part, or use them to offer service bureau or hosting services to a third party.
- Verifying compliance. At Publisher’s expense, Publisher may verify Customer’s and its Affiliates’ compliance with this Agreement at any time upon 30 days’ notice. To do so, Publisher may engage an independent auditor (under nondisclosure obligations) or ask Customer to complete a self-audit process. Customer must promptly provide any information and documents that Publisher or the auditor reasonably requests related to the verification and access to systems running the MF. If verification or self-audit reveals any unlicensed use, Customer must, within 30 days, order sufficient licenses to cover the period of its unlicensed use. Without limiting Publisher’s other remedies, if unlicensed use is 5% or more of Customer’s total use of the MF, Customer must reimburse Publisher for its costs incurred in verification and acquire sufficient licenses to cover its unlicensed use at 125% of the then-current Customer price. All information and reports related to the verification process will be Confidential Information and used solely to verify compliance.
- Feedback. Any Feedback is given voluntarily, and the provider grants to the recipient, without charge, a non-exclusive license under provider’s owned or controlled intellectual property rights to make, use, modify, distribute, and commercialize the Feedback as part of any of recipient’s products and services, in whole or in part and without regard to whether such Feedback is marked or otherwise designated by the provider as confidential.
|Except as expressly stated in this Agreement, the MF is provided as is. Publisher does not warrant that the MF will operate uninterrupted or that it will be free from any bugs or errors.To the maximum extent permitted by law, Publisher disclaims any and all other warranties (express, implied or statutory, or otherwise) including of merchantability or fitness for a particular purpose, whether arising by a course of dealing, usage or trade practice, or course of performance.|
II Intellectual Property
- Intellectual Property Rights in the MF. All Intellectual Property Rights in the MF, and each part thereof are and shall remain in the exclusive ownership of Publisher.
- Third Parties Works. Portions of the MF may include third party open-source software works. List of third parties works (and their applicable license in case they are subject to an open-source license) can be found at the Documentation. If case of a conflict between any applicable Open-source License and this Agreement the provisions of the open-source license will prevail in connection with the third party’s work.
III Pricing and payments
The License granted to Customer is subject to payments of all amounts due to Publisher (excluding free subscription as set in the Order Form). Pricing and payments will be as set in the Order Form.
- Confidential Information. “Confidential Information” is non-public information that is designated “confidential” or that a reasonable person should understand is confidential, including, but not limited to, Customer Data, the terms of this Agreement, and Customer’s account authentication means. Confidential Information does not include information that: (1) becomes publicly available without a breach of a confidentiality obligation; (2) the receiving party received lawfully from another source without a confidentiality obligation; (3) is independently developed; or (4) is a comment or suggestion volunteered about the other party’s business, products or services.
- Protection of Confidential Information. Each party will take reasonable steps to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship. Neither party will disclose Confidential Information to third parties, except to its Representatives, and then only on a need-to-know basis under nondisclosure obligations at least as protective as this Agreement. Each party remains responsible for the use of Confidential Information by its Representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify the other party.
- Disclosure required by law. A party may disclose the other’s Confidential Information if required by law, but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order or other remedy.
- Duration of Confidentiality obligation. Confidentiality obligations apply for a period of five years from the end of the License term after a party receives the Confidential Information.
VI Maintenance and Support Services and SLA
Fee subscription Customers are not entitled to maintenance and support. Publisher may provide maintenance and support at its sole discretion to free subscription Customers. During the license term Publisher shall provide Customer (excluding free subscription Customers) maintenance and support services. Such service level agreement will be initial response to service call within 2 Business Days, provided that such service calls were in accordance with Publisher’s technical instructions for service call as detailed on Publisher’s web site. Maintenance services include bug fixes (provided that the MF wasn’t: altered or modified without Publishers prior express permission, integrated or used other than authorized by Publisher, or as specified in the Agreement or the Documentation) and Publisher shall use reasonable efforts during normal business hours to fix bugs in the MF.
IV Representation and warranties
Publisher represents and warrants that:
- it has full rights and authority to enter into, perform under, and grant the rights in, this Agreement;
- its performance will not violate any agreement or obligation between it and any third party;
- the MF will substantially conform to the Documentation;
- the MF will not:
(1) to the best of Publisher’s knowledge, infringe or violate any third party patent, copyright, trademark, trade secret, or other proprietary right; or
(2) contain viruses or other malicious code that will degrade or infect any products, services, software, or Customer’s network or systems, and
- Publisher complies with applicable law, including Data Protection Laws and Anti-Corruption Laws, and will provide training to its employees regarding Anti-Corruption Laws and Data Protection.
Customer represents and warrants that:
(1) it has complied and will comply with all applicable government procurement laws and regulations if and to the extent applicable;
(2) it is authorized to enter into this Agreement;
(3) to comply with all laws applicable to its use of the MF, and to use the MF for any unlawful use or purpose.
VII Defense of third-party claims
- By Customer. Customer will defend Publisher and its Affiliates from and against any and all third party claims, actions, suits, proceedings arising from or related to Customer’s or any of its end user’s violation of this Agreement (a “Claims Against Publisher”), and will indemnify Publisher and its Affiliates for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Publisher or its Affiliates in connection with or as a result of, and for amounts paid by Publisher or its Affiliates under a settlement Customer approves of in connection with a Claim Against Publisher. Publisher must provide Customer with prompt written notice of any Claims Against Publishers and allow Customer the right to assume the exclusive defense and control of the claim, and cooperate with any reasonable requests assisting Customer’s defense and settlement of such matter.
- By Publisher. Publisher will defend Customer from and against any and all third party claims, actions, suits, proceedings, and demands alleging that the use of the MF as permitted under this Agreement infringes or misappropriates a third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Customer in connection with or as a result of, and for amounts paid by Customer under a settlement Publisher approve of in connection with a Claim Against Customer; provided, however, that the Publisher has no liability if a Claim Against Customer arises from:(1) Customer Data or non-Publisher products, including third-party software; and (2) any modification, combination or development of the MF that is not performed or authorized in writing by Publisher, including in the use of any application programming interface (API). Customer must provide Publisher with prompt written notice of any Claim Against Customer and allow Publisher the right to assume the exclusive defense and control and cooperate with any reasonable requests assisting Publisher’s defense and settlement of such matter. This section states Publisher sole liability with respect to, and Customer’s exclusive remedy against Publisher for, any Claim Against Customer.
- Additional Conditions for Defense of third-party claims. Notwithstanding anything contained in the above subsections (a) and (b), (1) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (2) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld or delayed), if:(A) the third party asserting the claim is a government agency; (B) the settlement arguably involves the making of admissions by the indemnified parties; (C) the settlement does not include a full release of liability for the indemnified parties; or (D) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.
VIII Limitation of liability
In no event will either party be liable for indirect, incidental, special, punitive, or consequential damages, or loss of use, loss of profits, or interruption of business, however caused or on any theory of liability. Each party’s maximum, aggregate liability to the other under this Agreement is limited to direct damages finally awarded in an amount not to exceed the amounts Customer actually paid to Publisher during 12 months period prior to the incident giving rise to a claim against Publisher, subject to the following:
- Free Service and distributable code. For Service provided free of charge Publisher’s liability is limited to direct damages finally awarded up to $150USD.
- Exceptions. No limitation will apply to liability arising out of either party’s: (1) defense obligations; or (2) violation of the other party’s intellectual property rights.
IX Term and termination
- Term. This Agreement is effective until the end of the of subscription period as set in the Order Form unless terminated by a party, as described below.
- Termination without cause. Either party may terminate this Agreement or any Order without cause by providing the other party 60 days prior written notice, provided that termination without cause by Customer will not affect subscription periods (excluding free subscription) – that will continue for the duration of the subscription period(s), and Publisher will not provide refunds or credits if the Agreement or an Order is terminated without cause.
- Termination for cause. Without limiting other remedies it may have, either party may terminate this Agreement if (i) the other party materially breaches the Agreement or an Order, and fails to cure the breach within 30 days after receipt of notice of the breach; or (ii) the other party becomes Insolvent. Upon such termination, the following will apply:
(1) Any license granted under this Agreement will terminate immediately.
(2) All amounts due under any unpaid Order will become due and payable immediately.
(3) If Publisher is in breach, Customer will receive all amounts paid in advance for unused consumption for any usage period after the termination date.
- Suspension. Publisher may suspend use of the MF without terminating this Agreement during any period of non-payment or material breach by Customer. Publisher will give Customer reasonable notice before suspending the MF.
- Survival. The terms of this Agreement, including the applicable Order, that are likely to require performance, or have application to events that may occur, after the termination or expiration of this Agreement or any Order, will survive termination or expiration, including all indemnity obligations and procedures.
- Entire Agreement. This Agreement is the parties’ entire agreement, and it merges and supersedes all prior and contemporaneous communications, whether written or oral, regarding the subject matter covered in this Agreement. Each party represents and declare that he has entered this Agreement in reliance on anything not contained or incorporated in it. If there is a conflict between any parts of this Agreement, the following order of precedence will apply:
(2) this Agreement;
(3) Service Level Agreement (SLA); and
- Independent contractors. The parties are independent contractors. Customer and Publisher each may develop products independently without using the other’s Confidential Information.
- Agreement not exclusive. Customer is free to enter into agreements to license, use, and promote the services or products of others.
- Assignment. Either party may assign this Agreement without the consent of the other party in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets. Publisher may assign this Agreement to an Affiliate, but it must notify Customer in writing of the assignment. Any other proposed assignment of this Agreement must be approved by the non-assigning party in writing. Any attempted assignment without required approval will be void.
- Severability. If any part of this Agreement is held to be unenforceable, the rest of the Agreement will remain in full force and effect.
- Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party.
- No third-party beneficiaries. This Agreement does not create any third-party beneficiary rights.
- Notices. Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to Publisher must be sent to the address stated in the Order. Notices to Customer will be sent to the individual at the address Customer identifies on its account as its contact for notices. Publisher may send notices and other information to Customer by email or other electronic form.
- Applicable law. This Agreement including any related matters shall be exclusively governed by, and construed in accordance with, the laws of the State of Israel, without giving effect to conflicts of laws principles and competent courts in Tel Aviv district will have exclusive jurisdiction on any of the foregoing.
- Construction. If a court of competent jurisdiction finds any term of the Agreement unenforceable, the Agreement will be deemed modified as necessary to make it enforceable, and the rest of the Agreement will be fully enforced to effect the parties’ intent.
XI Force Majeure
Neither Party will be liable for failure or delay in performance of any of its obligations under or in connection with this Agreement arising out of any event or circumstance beyond that Party’s reasonable control, including without limitation an Act of God, fire, flood, pandemic, lightning, war, revolution, act of terrorism, riot, civil commotion, adverse weather condition, adverse traffic condition, strike, lock-out or other industrial action, and failure of supply of power, fuel, transport, equipment, raw materials, or other goods or services.
- This Agreement will be interpreted according to its plain meaning without presuming that it should favor either party.
- Lists of examples following “including”, “e.g.”, “for example”, or the like are interpreted to include “without limitation,” unless qualified by words such as “only” or “solely.”
- all internal references are to this Agreement and its parties;
- all monetary amounts are expressed and, if applicable, payable, in U.S. dollars;
- URLs are understood to also refer to successors, localizations, and information or resources linked from within websites at those URLs;
- a party’s choices under this Agreement are in its sole discretion, subject to any implied duty of good faith;
- the following terms have the following meanings:
(1) “days” means calendar days;
(2) “business days” means Sunday to Thursday excluding public holidays from 9:00 – 18:00 (IL time) ;
(3) “may” means that the applicable party has a right, but not a concomitant duty;
(4) a writing is “signed” when it has been hand-signed (i.e., with a pen) or signed via an electronic signature.
(5) “Affiliate” means any legal entity that controls, is controlled by, or is under common control with a party.
(6) “Anti-Corruption Laws” means all laws against fraud, bribery, corruption, inaccurate books and records, inadequate internal controls, money-laundering, and illegal software.
(7) “Control” means ownership of more than a 50% interest of voting securities in an entity or the power to direct the management and policies of an entity.
(8) “Customer Data” means all data that provided to Publisher by, or on behalf of, Customer and its Affiliates through use of the MF. Customer Data does not include Support Data.
(9) “Support Data” means all data, including all text, sound, video, image files, or software, that are provided to Publisher by or on behalf of Customer (or that Customer authorizes Publisher to obtain from the MF) through an engagement with Publisher to obtain technical support for the MF covered under this Agreement.
(10) “Documentation” means all user manuals, handbooks, training material, requirements, and other written or electronic materials Publisher makes available for, or that result from use of, the MF.
(11) “End User” means any person Customer permits to use the MF.
(12) “Feedback” means ideas, suggestions, comments, input, or know-how, in any form, that one party provides to the other in relation to recipient’s Confidential Information, products, or services. Feedback does not include sales forecasts, future release schedules, marketing plans, financial results, and high-level plans (e.g., feature lists) for future products.
(13) “Insolvent” means admitting in writing the inability to pay debts as they mature; making a general assignment for the benefit of creditors; suffering or permitting the appointment of a trustee or receiver for all or any of its (i.e., the non-terminating party’s) assets, unless such appointment is vacated or dismissed within 60 days from the date of appointment; filing (or having filed) any petition as a debtor under any provision of law relating to insolvency, unless such petition and all related proceedings are dismissed within 60 days of such filing; being adjudicated insolvent or bankrupt; having wound up or liquidated; or ceasing to carry on business.
(14) “Intellectual Property Rights” means all and any copyright, trade marks or names (registered or unregistered), trade mark applications, patents, patent applications, registered designs, registered design applications, design right, database right, right in or to an Internet domain name, semi-conductor topography right, know-how, secret processes, formulae, or any other form or analogous intellectual or industrial property right arising at any time anywhere in the world whether registered or not.
(15) “MF” means including Documentation and any and all modifications.
(16) “Order” or “Order Form” means an ordering document used to transact the MF at Publisher’s website (www.esl.com) or via a Marketplace.
(17) “Personal Data” means any information relating to an identified or identifiable natural person.
(18) “Representatives” means a party’s employees, Affiliates, contractors, advisors and consultants.
(19) “Use” means to copy, download, install, run, access, display, use or otherwise interact with.
- Other terms defined in other provisions or this Agreement will have same defined meaning in all other occurrences of such terms.
i. Section heading are provided for convenience only.