SAAS LICENSE AGREEMENT
THIS SAAS LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL CONTRACT BETWEEN YOU (“YOU” OR
“CUSTOMER”) AND GHOSTWRITE LTD. (“COMPANY”) (EACH, AS A “PARTY” AND COLLECTIVELY, AS THE
“PARTIES”). BY CLICKING “I AGREE”, “ACCEPT” OR OTHER SIMILAR BUTTON OR BY INSTALLING,
ACCESSING AND/OR USING THE PLATFORM OR ITS RELATED SERVICES PROVIDED THEREUNDER, YOU
ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AS OF THE DATE OF ITS
ACCEPTANCE BY YOU (THE “EFFECTIVE DATE”).
BY AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, YOU ALSO REPRESENT THAT YOU: (I)
HAVE THE AUTHORITY TO ACT ON BEHALF OF AND BIND YOUR COMPANY OR OTHER LEGAL ENTITY TO
THESE TERMS; (II) ARE BINDING YOUR COMPANY OR OTHER LEGAL ENTITY TO THESE TERMS, IN WHICH
CASE THE TERMS “CUSTOMER” AND “YOU” IN THIS PARAGRAPH REFER TO SUCH ENTITY; AND (III) WAIVE
ANY RIGHTS OR REQUIREMENTS UNDER ANY LAWS OR REGULATIONS IN ANY JURISDICTION WHICH
REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-
ELECTRONIC RECORDS, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW.
IF YOU DO NOT WISH TO BE BOUND BY THE TERMS OF THIS AGREEMENT OR DO NOT HAVE THE
AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY OR OTHER LEGAL ENTITY
DO NOT ACCEPT THIS AGREEMENT AND DO NOT ACCESS AND/OR USE THE PLATFORM OR ITS RELATED
SERVICES.
- License. Subject to the terms and conditions of
this Agreement, Company hereby grants Customer a
limited, worldwide, non-exclusive, non-sublicensable,
non-transferable and revocable right and license to
remotely access (i.e. on a SaaS basis) and/or use the
Company’s proprietary software application content
writing and blog managing tool (the “Platform”) during
the Term (as defined below), solely for Customer’s
internal use purposes. Unless otherwise indicated, the
term “Platform” also includes any appliance and any
manual or documentation (“Documentation”) provided
or made available to Customer in connection with the
operation of the Platform. Customer may only use the
Platform in accordance with the Documentation, the
Subscription Order (as defined below) and applicable
laws and regulations. Customer shall be solely
responsible for providing all equipment, systems,
assets, access, and ancillary goods and services
needed to access and use the Platform, for ensuring
their compatibility with the Platform. For purposes
hereof, a “Subscription Order” shall mean an
electronic form published by Company on its website at
ghostwrites.ai and agreed to by Customer by clicking
and/or execution, as applicable, for the provision of the
applicable license granted under this Agreement. - Services
2.1 The Platform may be accessed solely by
Customer’s employees who are explicitly authorized
by Customer to access and use the Platform (each,
a “User”). Customer shall immediately report any
unauthorized access or use of the Platform to
Company. In order to access the Platform,
Customer and/or its Users may be required to set
up an administrative account with Company
(“Account”). Customer will ensure that the Users
comply with this Agreement at all times; and shall
be fully responsible and liable for any breach of this
Agreement by a User. Customer shall be further
responsible and liable for all activities of its
Permitted Users and all activities that occur under
or in its Account. Customer will require that all
Users keep their user ID and password information
strictly confidential. Unauthorized access or use of
the Platform must be immediately reported to the
Company.
2.2 During the Term, Company shall provide support
and maintenance services in accordance with the
standard service levels provided to its general
customers.
2.3 The Platform, any services detailed in the
Subscription Order, and the support and
maintenance services shall be referred to as the
“Services”.
- Trial. Company allows each Customer a seven
(7) day free trial subscription to the Platform, starting at
the day the Platform is available for use and ending
seven (7) days later (“Trial Period”).
NOTWITHSTANDING ANYTHING TO THE
CONTRARY IN THIS AGREEMENT, DURING THE
TRIAL PERIOD THE PLATFORM, IS PROVIDED ON
AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT
ANY WARRANTY WHASOEVER AND COMPANY
WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT,
OR OTHER OBLIGATIONS OR LIABILITIES WITH
RESPECT TO THE TRIAL PERIOD. FOR GREATER
CLARITY, COMPANY SHALL NOT BE LIABLE FOR
HEREUNDER FOR ANY DIRECT, INDIRECT,
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL OR
EXEMPLARY DAMAGES OR LOSSES
WHATSOEVER; NOR FOR DAMAGES OR LOSSES
FOR LOST PROFITS, BUSINESS INTERRUPTION,
LOSS OF BUSINESS INFORMATION, LOSS OF
GOODWILL, OR DAMAGES ARISING OUT OF THE
USE OF, OR INABILITY TO USE, THE PLATFORM. In
the event of any inconsistencies between the terms of
this Section 3 and other provisions of this Agreement,
the terms specified in this Section 3 shall prevail with
respect to the Trial Period. - Subscription Fees. The Services are
conditioned on Customer’s payment in full of the
applicable fees as set forth in the Subscription Order.
Company reserves the right to change its subscription
fees and Customer shall be informed of such changes
via an email and/or a notification on the Platform prior to
such changes. All fees and other amounts paid
hereunder are non-refundable and, all amounts payable
under this Agreement are exclusive of all sales, use,
value-added, withholding, and other direct or indirect
taxes, charges, levies, duties and/or governmental
charges, except for taxes based upon Company’ net
income. - Prohibited Uses. Except as specifically
permitted herein, without the prior written consent of
Company, Customer must not, and shall not allow any
User or any third party to, directly or indirectly: (i) copy,
modify, create derivative works of, make available or
distribute, publically perform, or display any part of the
Platform (including by incorporation into its products), or
use the Platform to develop any service or product that
is the same as (or substantially similar to) it; (ii) sell,
license, lease, assign, transfer, pledge, rent, sublicense,
or share Customer’s rights under this Agreement with
any third party (including but not limited to offering the
Platform as part of a time-sharing, outsourcing or
service bureau environment); (iii) use any “open source”
or “copyleft software” in a manner that would require
Company to disclose the source code of the Platform to
any third party; (iv) disclose the results of any testing or
benchmarking of the Platform to any third party; (v)
disassemble, decompile, decrypt, reverse engineer,
extract, or otherwise attempt to discover the Platform’s
source code or non-literal aspects (such as the
underlying structure, sequence, organization, file
formats, non-public APIs, ideas, or algorithms); (vi)
remove or alter any trademarks or other proprietary right
notices displayed on or in the Platform; (vii) circumvent,
disable or otherwise interfere with security-related
features of the Platform or features that enforce use
limitations; (viii) export, make available or use the
Platform in any manner prohibited by applicable laws;
and/or (ix) store or transmit any malicious code (i.e.,
software viruses, Trojan horses, worms, robots,
malware, spyware 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) or other unlawful material in connection with the
Platform.
- Personal Data.
To the extent that Customer needs a data processing
agreement, Customer shall request Company to provide
it with Company’s Data Processing Agreement (“DPA”)
and shall return such DPA signed to Company as
described therein. - Mutual Warranties. Each Party represents and
warrants that it is duly organized, validly existing and in
good standing under the laws of its jurisdiction of
incorporation or organization; and that the execution
and performance of this Agreement will not conflict with
other agreements to which it is bound or violate
applicable law. - Intellectual Property Rights.
8.1 The Platform is not for sale and is Company’s sole
property. All right, title, and interest, including any
intellectual property rights evidenced by or
embodied in, attached, connected, and/or related to
the Platform (and any and all improvements,
customizations, modifications and derivative works
thereof) and any other products or services
provided by Company, are and shall remain owned
solely by Company or its licensors. This Agreement
does not convey to Customer any interest in or to
the Platform other than a limited right to use the
Platform in accordance herewith. Nothing herein
constitutes a waiver of Company’s intellectual
property rights under any law. Without derogating
from the above, the Customer owns the results
received by it from Company through its use of the
Platform.
8.2 If Company receives any feedback (which may
consist of questions, comments, suggestions or the
like) regarding the Platform (collectively,
“Feedback”), all rights, including intellectual
property rights in such Feedback shall belong
exclusively to Company. Customer hereby
irrevocably and unconditionally transfers and
assigns to Company all intellectual property rights it
has in such Feedback and waives any and all moral
rights that Customer may have in respect thereto. It
is further understood that use of Feedback, if any,
may be made by Company at its sole discretion,
and that Company in no way shall be obliged to
make use of the Feedback.
8.3 Any anonymous information, which is derived from
the use of the Platform (i.e., metadata, aggregated
and/or analytics information and/or intelligence
relating to the operation, support, and/or
Customer’s use, of the Platform) which is not
personally identifiable information (“Analytics
Information”) may be used by Company for
providing the Platform and its related services, for
development, improving the Platform and/or for
statistical purposes. Such Analytics Information is
Company’s exclusive property.
8.4 As between the Parties, Customer is, and shall be,
the sole and exclusive owner of all data and
information inputted or uploaded to the Service by
or on behalf of Customer or otherwise integrated
with the Platform via an API, or data belonging to
Customer’s applications within the environment in
which the Platform is made available to Company
including by way of Company scraping or crawling
through Customer’s website (“Customer Data”).
Customer represents and warrants that: (i)
Customer owns or has obtained the consents and
rights related to the Customer Data, and Customer
has the right to provide Company the license
granted herein to obtain and use such Customer
Data in accordance with this Agreement; and (ii) the
Customer Data does not infringe or violate any
patents, copyrights, trademarks or other intellectual
property, proprietary or privacy or publicity rights of
any third party. Customer hereby grants Company
and its affiliates a worldwide, non-exclusive, right
and license, to access and use the Customer Data,
in order to perform its obligations hereunder,
including without limitation for Company’s provision
of the Platform and/or related services hereunder.
- Third Party Components. The Platform may
use or include third party open source software, files,
libraries or components that may be distributed to
Customer and are subject to third party open source
license terms, which can be provided upon request. If
there is a conflict between any open source license and
this Agreement, then the open source license terms
shall prevail but solely in connection with the related
third party open source software. Company makes no
warranty or indemnity hereunder with respect to any
third party open source software. - Confidentiality. Each Party may have access
to certain non-public information of the other Party, in
any form or media, including without limitation trade
secrets and other information related to the products,
software, technology, data, know-how, or business of
the other Party, and any other information that a
reasonable person 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. The receiving party’s obligations under this
Section 10, with respect to any Confidential Information
of the disclosing party, shall not apply to and/or shall
terminate if such information: (a) was already lawfully
known to the receiving party at the time of disclosure by
the disclosing party; (b) was disclosed to the receiving
party by a third party who had the right to make such
disclosure without any confidentiality restrictions; (c) is,
or through no fault of the receiving party has become,
generally available to the public; or (d) was
independently developed by the receiving party without
access to, use of, or reliance on, the disclosing party’s
Confidential Information. Neither Party shall use or
disclose the Confidential Information of the other Party
except for performance of its obligations under this
Agreement (“Permitted Use”). The receiving party shall
only permit access to the disclosing party’s Confidential
Information to its respective employees, consultants,
affiliates, agents and subcontractors having a need to
know such information in connection with the Permitted
Use, who either (i) have signed a non-disclosure
agreement with the receiving party containing terms at
least as restrictive as those contained herein; or (ii) are
otherwise bound by a duty of confidentiality to the
receiving party at least as restrictive as the terms set
forth herein; in any event, the receiving party shall
remain liable for any acts or omissions of such persons.
The receiving party will be allowed to disclose
Confidential Information to the extent that such
disclosure is required by law or by the order of a court
or similar judicial or administrative body, provided that it
promptly notifies the disclosing Party in writing of such
required disclosure to enable disclosing party to seek a
protective order or otherwise prevent or restrict such
disclosure and cooperates reasonably with disclosing
party in connection therewith. All right, title and interest
in and to Confidential Information is and shall remain
the sole and exclusive property of the disclosing Party.
- LIMITED WARRANTIES.
11.1 Without derogating from the above, Company
cannot be held responsible or liable for any output
that is generated through use of the Platform.
Company’s sole warranty is that the Platform works
as advertised. As Customer’s sole and exclusive
remedy and Company’s sole liability for breach of
this warranty, Company shall use commercially
reasonable efforts to repair the Platform. The
warranty set forth herein shall not apply if the failure
of the Platform results from or is otherwise
attributable to: (i) repair, maintenance or
modification of the Platform by persons other than
Company or its authorized contractors; (ii) accident,
negligence, abuse or misuse of the Platform; (iii)
use of the Platform other than in accordance with
the Documentation; or (iv) the combination of the
Platform with equipment or software not authorized
or provided by Company. OTHER THAN AS
EXPLICITLY STATED IN THIS AGREEMENT, TO
THE EXTENT PERMITTED BY APPLICABLE LAW,
THE PLATFORM, ITS RELATED SERVICES AND
THE RESULTS (AS DEFINED BELOW) ARE
PROVIDED ON AN “AS IS” AND “AS AVAILABLE”
BASIS. COMPANY DOES NOT WARRANT THAT
THE PLATFORM, ITS RELATED SERVICES AND
THE RESULTS PRODUCED: (i) WILL MEET
CUSTOMER’S REQUIREMENTS, (ii) WILL
OPERATE ERROR-FREE, OR (iii) WILL BE ABLE
PROVIDE EXPECTED, ACCURATE OR FULL
RESULTS. EXCEPT FROM THE WARRNATIES
SET FORTH IN THIS AGREEMENT, THE
COMPANY EXPRESSLY DISCLAIMS ALL
IMPLIED WARRANTIES, INCLUDING
MERCHANTABILITY, SATISFACTORY QUALITY
TITLE, NON- INFRINGEMENT, NON-
INTERFERENCE, FITNESS FOR A PARTICULAR
PURPOSE. COMPANY WILL NOT BE LIABLE
FOR DELAYS, INTERRUPTIONS, SERVICE
FAILURES OR OTHER PROBLEMS INHERENT IN
USE OF THE INTERNET AND ELECTRONIC
COMMUNICATIONS OR FOR ISSUES RELATED
TO PUBLIC NETWORKS OR CUSTOMER’S
HOSTING SERVICES.
11.2 COMPANY DOES NOT OFFER A
WARRANTY OR MAKE ANY REPRESENTATION
REGARDING ANY CONTENT, RESULTS,
INFORMATION, OR SOLUTIONS THAT
CUSTOMER OBTAINS THROUGH USE OF THE
PLATFORM AND ITS RELATED SERVICES
(COLLECTIVELY, THE “RESULTS”), OR THAT
THE RESULTS ARE COMPLETE OR ERROR-
FREE. CUSTOMER’S USE OF AND RELIANCE
UPON THE RESULTS IS ENTIRELY AT
CUSTOMER’S SOLE DISCRETION AND RISK,
AND COMPANY SHALL HAVE NO
RESPONSIBILITY OR LIABILITY WHATSOEVER
TO CUSTOMER IN CONNECTION WITH ANY OF
THE FOREGOING.
- LIMITATION OF LIABILITY. WITHOUT
DEROGATING FROM COMPANY’S
INDEMNIFICATION OBLIGATION UNDER SECTION
13 AND EXCEPT FOR ANY DAMAGES RESULTING
FROM: (i) ANY BREACH OF EITHER PARTY’S
CONFIDENTIALITY OBLIGATIONS HEREIN, (ii)
WILLFUL MISCONDUCT, AND/OR (iii) CUSTOMER’S
MISAPPROPRIATION OR OTHERWISE VIOLATION
OF COMPANY’S INTELLECTUAL PROPERTY
RIGHTS (INCLUDING MISUSE OF THE LICENSE BY
CUSTOMER), NEITHER PARTY SHALL BE LIABLE
FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR
ANY LOSS OF REVENUE, REPUTATION, PROFITS,
DATA, OR DATA USE, OR THE COST OF
PROCURING ANY SUBSTITUTE GOODS OR
SERVICES. COMPANY’S MAXIMUM LIABILITY FOR
ANY DAMAGES ARISING OUT OF OR RELATED TO
THIS AGREEMENT, WHETHER IN CONTRACT OR
TORT, OR OTHERWISE, SHALL IN NO EVENT
EXCEED, IN THE AGGREGATE, THE TOTAL
AMOUNTS ACTUALLY PAID OR PAYABLE TO
COMPANY BY CUSTOMER IN THE TWELVE (12)
MONTH PERIOD IMMEDIATELY PRECEDING THE
EVENT GIVING RISE TO SUCH CLAIM. THIS
LIMITATION OF LIABILITY IS CUMULATIVE AND NOT
PER INCIDENT. FOR CLARITY, THE LIMITATIONS IN
THIS SECTION DO NOT APPLY TO PAYMENTS DUE
TO COMPANY UNDER THIS AGREEMENT. - Indemnification.
13.1 Company agrees to defend, at its expense, any
third party action or suit brought against Customer
alleging that the Platform, when used as permitted
under this Agreement, infringes intellectual property
rights of a third party (“IP Infringement Claim”);
and Company will pay any damages awarded by
court against Customer that are attributable to any
such IP Infringement Claim, provided that (i)
Customer promptly notifies Company in writing of
such claim; and (ii) Customer grants Company the
sole authority to handle the defense or settlement
of any such claim and provides Company with all
reasonable information and assistance in
connection therewith, at Company’s expense.
Company will not be bound by any settlement that
Customer enters into without Company’s prior
written consent.
13.2 If the Platform becomes, or in Company’s
opinion is likely to become, the subject of an IP
Infringement Claim, then Company may, at its sole
discretion: (a) procure for Customer the right to
continue using the Platform; (b) replace or modify
the Platform to avoid the IP Infringement Claim; or
(c) if options (a) and (b) cannot be accomplished
despite Company’s reasonable efforts, then
Company may terminate this Agreement and
Company shall also provide a refund for any
amount pre-paid by Customer for such returned
Platform for the remaining unused period of the
license.
13.3 Notwithstanding the foregoing, Company shall
have no responsibility for IP Infringement Claims
resulting from or based on: (i) modifications to the
Platform made by a party other than Company or its
designee; (ii) Customer’s failure to implement
software updates provided by Company specifically
to avoid infringement; or (iii) combination or use of
the Platform with equipment, devices or software
not supplied by Company.
13.4 This Section 13 states Company’s entire
liability, and Customer’s exclusive remedy, for any
IP Infringement Claim.
- Suspension, Term and Termination.
14.1 If Company reasonably believes that Customer
is using the Platform in a manner that may cause
harm to Company or any third party then Company
may, without derogating from Company’s right to
terminate this Agreement for any breach hereof,
suspend Customer’s access to and use of the
Platform until such time as Company believes the
threat of harm, or actual harm, has passed.
14.2 This Agreement shall enter into force and effect
on the Effective Date. Following the Trial Period,
and unless otherwise terminated, this Agreement
shall remain in full force and effect for a term of
twelve (12) months (“Initial Term”) following which,
the Agreement shall automatically renew, unless
otherwise terminated, for additional twelve (12)
month periods (each a “Renewal Term” and,
together with the Initial Term, the “Term”).
14.3 Customer may terminate this Agreement, (i) at
any time during the Initial Term or, (ii) with thirty
(30) advance notice at any other time, by way of
providing Company with written notice of its wish to
terminate. Upon termination or expiration of this
Agreement: (i) Platform license granted to
Customer under this Agreement shall expire, and
Customer shall discontinue any further use and
access thereof; (ii) Customer shall immediately
delete and dispose of all copies of the
Documentation in Customer’s or any of its
representatives’ possession or control; and (iii)
Company may delete all customer data uploaded
on the Platform without affecting any of Company’s
rights to the Analytics Information.
14.4 The provisions of this Agreement that, by their
nature and content, must survive the termination of
this Agreement in order to achieve the fundamental
purposes of this Agreement (including limitation of
liability) shall so survive. - Miscellaneous. This Agreement, including any
Subscription Orders and exhibits attached or referred
hereto, represents the entire agreement between the
Parties concerning the subject matter hereof, replaces
all prior and contemporaneous oral or written
understandings and statements, and may be amended
only by a written agreement executed by both Parties.
In the event of any inconsistencies between this
Agreement and the terms of any duly executed
Subscription Order signed by the Company, the terms
of the Subscription Order shall prevail. 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 shall not be deemed a waiver by that Party as to
subsequent enforcement or actions in the event of
future breaches. Any waiver granted hereunder must be
in writing. If any provision of this Agreement is held by a
court of competent jurisdiction to be illegal, invalid or
unenforceable, the remaining provisions of this
Agreement shall remain in full force and effect and such
provision shall be reformed only to the extent necessary
to make it enforceable. Any use of the Platform by a
government agency, department, or organization shall
be governed solely by the terms of this Agreement.
Neither Party may assign its rights or obligations under
this Agreement without the prior written consent of the
other Party, which consent may not be unreasonably
withheld or delayed. Notwithstanding the foregoing, this
Agreement may be assigned by either Party in
connection with a merger, consolidation, sale of all of
the equity interests of such Party, or a sale of all or
substantially all of the assets of the Party to which this
Agreement relates. Without derogating from and subject
to the abovementioned, this Agreement will bind and
benefit each Party and its respective successors and
assigns. This Agreement shall be governed by and
construed under the laws of the State of Israel, without
reference to principles and laws relating to the conflict of
laws. The competent courts of the Tel Aviv shall have
the exclusive jurisdiction with respect to any dispute and
action arising under or in relation to this Agreement.
Notwithstanding the foregoing, each Party may seek
equitable relief in any court of competent jurisdiction in
order to protect its proprietary rights. Each Party
irrevocably waives its right to trial of any issue by jury.
This Agreement does not, and shall not be construed to
create any relationship, partnership, joint venture,
employer-employee, agency, or franchisor-franchisee
relationship between the Parties. Neither Party has any
authority to enter into agreements of any kind on behalf
of the other Party. Company will not be liable for any
delay or failure to provide the Services resulting from
circumstances or causes beyond the reasonable control
of Company including, but not limited to on account of
strikes, shortages, riots, insurrection, fires, flood,
storms, explosions, acts of God, war, government or
quasi-governmental authorities actions, riot, acts of
terrorism, earthquakes, explosions, power outages,
pandemic or epidemic (or similar regional health crisis),
or any other cause that is beyond the reasonable
control of Company. This Agreement may be executed
in electronic counterparts, each of which counterpart,
when so executed and delivered, shall be deemed to be
an original and all of which counterparts, taken together,
shall constitute but one and the same agreement.