HARMONY IoT End-User Agreement
Updated on April 23, 2020
This End-User Agreement (this "EUA") is a binding agreement between you (the single user individual or entity signed below) and [O.I.J. Orchestra Group Ltd.] (together with its affiliates, the "Company") regarding the use of the Software (as defined herein). By installing and/or using all or any portion of the Software and/or the Product, you accept all the terms and conditions of this EUA.
THE COMPANY PERMITS YOU TO USE THE SOFTWARE ONLY IN ACCORDANCE WITH AND SUBJECT TO YOUR FULL AGREEMENT AND COMPLIANCE WITH THE TERMS OF THIS EUA. THE USE OF THE SOFTWARE IS SUBJECT SOLELY TO THE TERMS OF THIS EUA (AS MAY BE AMENDED FROM TIME TO TIME BY PROVIDING YOU A WRITTEN NOTICE) AND THE PROVISIONS OF THIS EUA SHALL PREVAIL ANY CONTRADICTING PROVISION, NOTWITHSTANDING ANYTHING TO THE CONTRARY UNDER ANY DOCUMENT EXCHANGED OR SIGNED BETWEEN YOU AND THE COMPANY. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS EUA, DO NOT INSTALL OR USE THE SOFTWARE. INSTEAD, PROMPTLY CONTACT THE RESELLER FOR INSTRUCTIONS ON RETURNING THE PRODUCT IN ACCORDANCE WITH THE RETURN POLICIES. ANY USE OF THE PRODUCT AND THE SOFTWARE WILL CONSTITUTE YOUR AGREEMENT TO THIS EUA.
The term "Software" in this EUA shall refer to the software components embedded within any the Company product purchased by you from the reseller, including, any upgrades, modified versions, updates, and additions thereof if any (collectively, the "Updates").
The term "Product" in this EUA shall refer to the Company's product purchased by you in which the Software in embedded.
1.Grant of Right to Use. Subject to your full compliance with the terms of this EUA, By subscribing to the service the Company grants you a limited, personal, non-exclusive, non-transferable, non-sub-licensable, single user license to use the Software embedded in the Product. Without derogating the generality of the aforementioned, the Software may be used solely for your internal business purposes and you may not make any commercial use of the Software, nor grant any third party any right to use the Software, whether or not for consideration.
2.No Ownership. You have no ownership rights, interest, title or other proprietary rights in the Software. Rather, you have a right to use the Software pursuant to the terms of this EUA. Ownership of the Software and all other rights, title and interests of the Software, including all copyrights, trade secrets, and other intellectual property rights, shall remain at all times solely with the Company and this EUA does not convey to you any interest in or to the Software, except for a limited right of use as set forth herein, revocable and/or terminable in accordance with the terms of this EUA.
3.Confidentiality. You acknowledge that the Software contains confidential and proprietary information and trade secrets of the Company and agree that any unauthorized disclosure, use, or copying of the Software may cause the Company serious financial loss. Accordingly, you shall treat the Software as confidential and arrange proper and secure storage of said Software in the same manner as you own confidential material of like nature.
4.Copyrights. The Software contains material that is protected by applicable copyright and trade secret laws and by international treaty provisions. All copyright or any other proprietary notices placed on or contained within the Software shall be maintained, and you may not alter, remove, modify, or suppress any such proprietary notice of the Company. You will also ensure that all such proprietary notices and confidentiality legends appear on all copies of the Software.
5.Data Privacy. the Company does not collect through the Software any direct personal data relating to you or other natural persons. Should any of your personal data is uploaded, stored, maintained, and/or shared by using the Software, you are solely responsible for ensuring that your use of the Software is in accordance with applicable privacy laws, and you give the Company authorization to use your personal data for the operation of the Software. For further information on how the Company protects and uses personal data it might collect, see the Company's Privacy Notice located at https://www.orchestra.group/iot-privacy-policy.
6.Updates. The Company, at its discretion, may provide Updates to the Software. All Updates are provided to you on an exchange basis. You agree that by using any Update you voluntarily terminate your right to use any previous version of the Software.
7.Restrictions. Other than the rights expressly provided hereunder to you, no other rights or interests whatsoever in the Software are transferred or granted to you. Without limiting the foregoing, you undertake not to, and not to allow or aid to any third party, to: (i) use the Software for any purpose other than the purpose explicitly set forth hereunder, or other than in compliance with the terms of this EUA; (ii) publish, display, disclose, sell, distribute, rent, lease or donate the Software; (iii) copy (except as allowed under this EUA), alter or reproduced the Software or the documentation which accompanies the Software or create derivative works based on the Software or any part thereof; (iv) develop any other product containing any of the concepts or ideas contained in the Software; (v) modify, alter, reverse engineer, dissemble or decompile the Software or any part thereof, or incorporate the Software into any other software, or extract the Software form the Product within which it is embedded, or attempt to create the source code from the object code of the Software; or (vi) transmit the Software over any network or between any devices, although you may use the Software to make such transmissions of other materials. Please be aware that your use of the open source codes and third-party software embedded within the Company's product is subject to the terms of the licenses applicable thereto, details of which are available upon written request. THE USE OF THE SOFTWARE EXCEPT AS EXPRESSLY PERMITTED HEREUNDER IS EXPRESSLY PROHIBITED, AND CONSTITUTES AN ILLEGAL INFRINGEMENT OF COPYRIGHT AND OTHER RIGHTS OF THE COMPANY IN AND TO THE SOFTWARE AND A VIOLATION OF THIS EUA.
8.No Warranty. THE COMPANY GRANTS NO WARRANTY WITH RESPECT TO THE SOFTWARE, TO YOU OR TO ANY OTHER PERSON OR ENTITY, EITHER EXPRESS IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE COMPANY DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING, THE SOFTWARE IS PROVIDED "AS IS" AND WITH ALL FAULTS, AND THE COMPANY DOES NOT WARRANT AND REPRESENT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE.
9.Disclaimer of Damages. IN NO EVENT AND UNDER NO CIRCUMSTANCES, SHALL THE COMPANY BE LIABLE TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR LOSSES, COSTS, PENALTIES, ATTORNEYS FEES RESULTING FROM ANY EXPOSURE AND/OR LOSS OF DATA, FAILURE IN PROTECTING DATA, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOST PROFITS, SAVINGS, USE, OPPORTUNITY, TAXES AND PENALTY TAXES, OR REVENUES OF ANY KIND), WHETHER SUCH DAMAGES ARE SOUGHT IN CONTRACT, TORT OR UNDER ANY OTHER LEGAL THEORY (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND STRICT LIABILITY), EVEN IF YOU NOTIFIED IN ADVANCE OF SUCH POSSIBILITY. NOTWITHSTANDING ANYTHING IN THIS EUA TO THE CONTRARY, THE COMPANY'S AND ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES OR OTHER REPRESENTATIVES' SOLE, EXCLUSIVE AND MAXIMUM AGGREGATE LIABILITY SHALL IN NO EVENT EXCEED $100.
The limited warranty, limited liability and exclusive remedies provisions set forth herein are fundamental elements of this EUA, and you accept and confirm that the Company would not be able to provide the Software on an economic basis without such limitations.
10.Termination. Notwithstanding anything to the contrary herein, this EUA is effective until terminated pursuant to the provisions of this Section. You may terminate this EUA at any time by destroying or returning to the Company all copies of the Software in your possession or under your control and in any event providing written notice to the Company which would confirm that you have acted in accordance with the provisions hereof. the Company may terminate this EUA and the license granted hereunder, if the Company finds that you have violated the terms of this EUA, or in case of nonpayment of the applicable fees for the Software or the Product at the time due. Upon notification of termination, you agree to destroy or return to the Company all copies of the Software in your possession or under your control and to certify in writing, inter alia, that all known copies, including backup copies of the Software have been destroyed or returned. All provisions relating to proprietary rights and limitation of warranty and liability shall survive the termination of this EUA.
11.Governing Law. This EUA will exclusively be governed by and construed in accordance with the substantive laws in the State of Israel, without regard to its conflict of law rules. The respective courts of Tel-Aviv-Jaffa, shall have exclusive jurisdiction over all disputes arising from or relating to this EUA.
12.General Provisions. (i) you may not assign or transfer any rights or obligation in this EUA without the prior written consent of the Company. Any attempted assignment or transfer in violation of this Section will be deemed void. the Company expressly reserves the right to assign this EUA to an acquirer of or successor to substantially all of its business assets related to this EUA and/or to the Software; (ii) If any part of this EUA is found void and/or unenforceable, it will not affect the validity of the balance of this EUA, which shall remain valid and enforceable according to its terms (unless it renders the right contemplated hereby impracticable); (iii) Updates may be provided to you by the Company with additional and/or different terms; (iv) Any waiver, modification or amendment of any provision of this EUA shall be effective only if in writing and signed by the parties hereto; (v) No delay or omission by the Company in exercising any right under this EUA shall operate as a waiver of that or any other right; (vi) Nothing in this EUA, express or implied, shall create or confer upon any person or entity, other than the parties hereto or their respective successors and permitted assigns, any rights, remedies, obligations or liabilities, except as expressly provided herein.
IN WITNESS WHEREOF the end-user has signed this EUA as of the date first hereinabove set forth.