NANOSCENT TERMS AND CONDITIONS
This Agreement (the “Terms”) applies to and governs the use of the NANOSCENT platform that provides scent metrics and indications (the “Service”, including all its constituent components).
The following key points of these Terms are brought for your convenience only. They do not substitute the full Terms.
1. Your relationship with us
These Terms are a binding agreement between the individual or entity identified during registration to the Service (“you” or “your”), and Nanoscent Ltd., an Israeli company (“we”, “us”, “our” or the “Company”).
In case of an entity, the individual signing-up to the Service for the entity confirms that they have the proper authority to legally bind the entity to these Terms. They also confirm they agree, on behalf of that entity, to be contractually bound by these Terms.
You must ensure that your employees, consultants and agents that you designate to use and deal with the Service for your benefit fully comply with these Terms. You are liable to us for all acts or omissions of those that use and deal with the Service for your benefit, as though you yourself had performed those acts or omissions.
2.1. “Dashboard” means the web-based interface through which you may access and use the functionality and features of the Service.
2.2. “Derived Data” means aggregated data and insights derived from Your Data, which do not identify you (or your entity) and cannot with reasonable means be attributed or traced back to Your Data.
2.3. “Deliverable” means any tangible or intangible Professional Services work product specified for delivery to you in an applicable SoW.
2.4. “Feedback” means information or content concerning enhancements, changes or additions to the Service that you request, desire or suggest.
2.5. “Fees” means the applicable service fees, as set forth in section 8.1.
2.6. “Output Data” means the various reports, alerts, notices, and other types of information and data that the Service may generate, provide or make available to you through the Dashboard.
2.7. “Professional Services” means the performance of the work by NanoScent as specified in an applicable SoW.
2.8. “Term” means the period of these Terms as specified in section 10 below.
2.9. “Sensors” means the physical edge devices that monitor scents and convert them into a digital signal.
2.10. “SoW” means the written document setting out the work plan for Professional Services, and which also includes a specification of the project plan for the provision of Professional Services, as well as purchase details, applicable rates of Professional Services and payment milestones, payment terms and other information relating to the performance of Professional Services and the Deliverables.
2.11. “Your Data” mean data from your connected Sensors that we collect, process or are exposed to in the course of providing the Service to you, as well as the Output Data and identifying information about you.
3. Interpretation. As used herein, the term “including”, means including, but not limited to, and without limitation, to the generality of the preceding phrase. All examples in the Agreement and all “i.e.” and “such as” notations, indicate an illustration, by way of example only, of the preceding phrase, without limiting its generality.
4. Usage. Subject to these Terms, the completion of your registration and your payment of the applicable Fees, you may, during the Term, access and use the Service (including the Dashboard and the Sensors you’ve purchased) and the Output Data, strictly for the purpose of evaluating the Service within you own business activities and only in use-cases and scenarios that have received our prior written authorization. You may only access and use the Service through the tools, features and functionalities that we expressly make available to you.
5. Registration and user account.
5.1. You must be registered in order to use the Service. In order to apply for registration, you must complete our online application form in which we will indicate the mandatory fields for completion. If you do not provide the required information in these fields, you will not be able to register. You must provide true, accurate and complete information.
5.2. Login to the Dashboard is authenticated with a password, which you should periodically change. You must maintain the confidentiality of your account login details.
6. Data and privacy.
6.1. You are solely and exclusively responsible: (i) for all actions you take in response to the Output Data; (ii) to thoroughly review the Output Data frequently, check for any alerts or warnings issued by the Service, address the findings specified in the Output Data and determine what actions are appropriate in light thereof; and (iii) to carry out such actions as you deem appropriate as a result of the Output Data.
6.2. You are prohibited from directly accessing the data from the Sensors.
6.3. We are not responsible or liable for your reliance upon, or use of, the Output Data, your actions in connection with the Output Data, or any consequences resulting therefrom.
6.4. You acknowledge and agree that we will process, handle and use (by ourselves or using trusted third party service providers such as cloud service providers) Your Data, Feedback and the Derived Data as follows:
6.4.1. We will use Your Data, the Derived Data and the Feedback to provide the Service to you, conduct administrative and technical activities necessary to maintain and provide the Service and to improve and customize the Service, including its underlying machine learning engine;
6.4.2. We will use Your Data, the Derived Data and the Feedback to bill and collect Fees, enforce these Terms and take any action in any case of dispute, or legal proceeding of any kind involving you with respect to the Service;
6.4.3. We will use Your Data, the Derived Data and the Feedback to prevent fraud, misappropriation, infringements, and other illegal activities and misuse of the Service;
6.4.4. We may use and share the Feedback and Derived Data in order to provide the Service to you and other customers, to enhance the Service, to develop new products and services, for research and testing and for any other purpose we determine. You will not be entitled to any remuneration from us, for our use of such Feedback and Derived Data;
6.4.5. If you give your explicit consent to contribute Your Data by uploading it to our crowdsourced data pool, we may then use and share Your Data, with other third parties, in order to develop insights, develop new products and services, for research and testing and for other research and development purposes. When you contribute Your Data in this manner, you will benefit from gaining access to the crowdsourced data pool that others have similarly contributed to.
6.4.6. If we are required, or reasonably believe we are required, by law, to share or disclose Your Data, or if such sharing or disclosure is required pursuant to a subpoena, order, or decree, issued by a competent judicial or administrative authority, provided that, to the extent legally permitted, we will endeavor to give your prompt notice of the requirement prior to such disclosure, to allow you, at your cost and expense, to intervene and protect its interests in Your Data.
6.5. The Service generally does not collect or process personally identifiable information, except for your contact information that we collect to manage our relationship with you. We will apply the measures required by applicable law to protect this personally identifiable information about you.
6.6. Subject to the foregoing, we will take precautions to maintain the confidentiality of Your Data, in a manner no less protective than we use to protect our own similar assets, but in no event less than reasonable care. We will not use or disclose Your Data except as described above or otherwise subject to your express, prior, written permission. Our personnel, staff, advisors and consultants will access Your Data on a strict ‘need to know’ basis, subject to the terms herein.
6.7. We may delete Your Data from the Service, upon termination of these Terms. You are responsible for maintaining back-up copies of Your Data. The Service does not provide, and is not intended as, data back-up service.
6.8. We may store and process Your Data outside of the European Economic Area and outside your home country.
6.9. To the extent that Your Data (other than Output Data) is subject to legal protection (such as trade secrets or privacy), then you are responsible to, and shall, establish and secure the legal basis necessary under applicable law, in order to allow us to lawfully collect, handle, retain, process and use the Your Data in the manners and for the purposes set forth in these Terms.
7. Sensors; Professional Services
7.1. Unless otherwise expressly stated in the Proposal, then notwithstanding your possession or physical control of the Sensors, the exclusive ownership of all intellectual property rights subsisting in the Sensors or their firmware or middleware, is and will remain at all times, with Nanoscent.
7.2. The risk of physical damage to or loss of the Sensors shifts to you upon the Sensor being handed over to your possession. You must use and handle the Sensor carefully and strictly in accordance with the instructions conveyed by us. You may not deal with the Sensor in any manner which is not expressly permitted by us, including dismantling it, tampering with it, or conducting any repair, alteration, adaptation, addition thereto or derogation therefrom.
7.3. The Organization acknowledges and agrees that the Service does not apply to or cover malfunctions in, or damage to, the Sensor and that we do not assume any obligation or responsibility regarding any repair or replacement of a Sensor.
7.4. With respect to those Professional Services of Nanoscent specified in an applicable SoW, Nanoscent a will make commercially reasonable efforts to –
7.4.1. Perform the respective Professional Services in a professional and workmanlike manner to your satisfaction and in accordance with the timetable specified in the applicable SoW;
7.4.2. Utilize, at all times, its professional judgment and discretion in the provision of the Professional Services;
7.4.3. Comply with the technical and subject-matter requirements set forth in applicable SoW;
7.4.4. Prepare, to completion, the Deliverables specified in the applicable SoW;
7.5. To facilitate our performance of the Professional Services you shall provide us such cooperation and information in accordance with the substance and timeline specified in the SoW and as reasonably requested by us, such as business information, operational support, workflow information, and technical requirements and data needed for us to properly perform the Professional Services.
7.6. You are entitled to use the Deliverables only internally, for you own business purposes.
8.1. In consideration of the provision to you of the Service and Sensors, as well as Professional Services (if applicable), you will pay us, as of your registration to the Service, the periodic subscription Fees, the one-time Fees and Professional Services Fees, in accordance with the packages, schemes, amounts and subscription cycle presented to you upon registration and in the SoW (if applicable).
8.2. Changes you make in your subscription package, scheme or amount will take effect in the subsequent subscription cycle.
8.3. All Fees are quoted in US Dollars, unless expressly stated otherwise. Fees are payable by the payments methods separately conveyed to you. By using one or more payment methods to pay the Fees, you represent and warrant that you are lawfully permitted to use the selected payment method in connection with the Service. We may require additional information from you before completing payment transactions.
8.4. You must keep the billing information you provided to us upon registration current, complete, and accurate, and notify us promptly in case of any change in your billing information.
8.5. We will charge you for the applicable subscription Fees at the beginning of each subscription cycle. By registering to the Service, you give your consent to purchasing a subscription to the Service, in accordance with the schemes, amounts and subscription cycle presented to you upon registration, and to being billed for the applicable Fees, in addition to any applicable taxes (such as sales tax, value added tax), and any surcharges or commissions charged by the payment processor or your selected payment method.
8.6. All your payment obligations are non-cancelable, and all amounts paid in connection with the Service are non-refundable. If you terminate your account and subscription, you are not entitled to any refund (pro-rata or otherwise), for any Fees you have paid for the terminated subscription during that subscription cycle. You are responsible for paying all Fees applicable to your subscription to the Service, whether or not you actively used, accessed or otherwise benefited from the Service.
8.7. Payment methods are processed and handled through relevant third party payment processors. Payment methods are therefore subject not only to these Terms, but also the terms and conditions of these third parties pursuant to your contractual relations with them. You acknowledge that the third parties processing any of the payment methods may charge you commission on their end of the transaction. We are not responsible for such commission, which is strictly within your contractual relations with the relevant payment processor.
8.8. Fee that we are unable to charge through the payment method you provided is deemed an overdue Fee. Failure to settle any overdue Fee within twenty (20) calendar days of its original due date will constitute a material breach of these Terms. Without derogating from any other rights and remedies available to us under applicable law, overdue Fees will accrue interest at the rate of three-quarters of one percent (0.75%) per month or part thereof, cumulative monthly on the linked capital from the due date until the date of actual payment. You will reimburse us for all legal costs and attorney fees we incur in the course of collecting your overdue Fees.
8.9. We may modify, adapt, improve, or enhance the Service, or any of its features, user interface, design or any other aspect related to it, without being obligated to provide you notice thereof. If we enhance the Service to include new or additional features or capabilities, we reserve the right to amend these Terms or the applicable Fees and obtain your consent to such amendments. If you do not agree to the amendments in their entirety, we reserve the right to terminate these Terms at the end of the subscription cycle pursuant to subsections 10.1 and 10.3 above.
9.1. Except as relevant law may otherwise require to be permitted, you may not modify, make derivative works of, disassemble, de-compile or reverse engineer any part of the Service or Deliverables, or otherwise attempt to discover its underlying code, structure, implementation or algorithms.
9.2. You may not use the Service or Deliverables in order to develop, or create, or permit others to develop or create, a product or service similar or competitive to the Service or Deliverables.
9.3. Except for Your Data, you may not offer the Service or Deliverables to third parties, including by reselling, licensing, renting, leasing, transferring, lending, timesharing, assigning or redistributing the Service or Deliverables or any part thereof.
9.4. You may not perform or attempt to perform any of the following in connection with the Service:
9.4.1. Breaching the security of the Service or Deliverables, identifying, probing or scanning any security vulnerabilities in the Service or Deliverables,
9.4.2. Accessing data not intended for you, or accessing an account you are not authorized to access;
9.4.3. Interfering with, circumventing, manipulating, overloading, impairing or disrupting the operation, or the functionality of the Service or Deliverables;
9.4.4. Working around any technical limitations in the Service or Deliverables;
9.4.5. Using any tool to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Service or Deliverables;
9.4.6. Collecting or processing information or data about the Service’s subscribers; or
9.4.7. Sending any virus, worm, Trojan horse or other malicious or harmful code or attachment.
9.4.8. Using robots, crawlers and similar applications to scrape, harvest, collect or compile content from or through the Service or Deliverables.
9.5. YOU MAY NOT USE THE SERVICE OR DELIVERABLES FOR ANY ACTIVITY THAT CONSTITUTES, OR ENCOURAGES CONDUCT THAT WOULD CONSTITUTE, A CRIMINAL OFFENSE, GIVE RISE TO CIVIL LIABILITY OR OTHERWISE VIOLATE ANY APPLICABLE LAW.
11. Term and Termination
10.1. These Terms commence when you apply to register to the Service, and terminate upon the termination, cancellation or expiration of your subscription to the Service.
10.2. Upon the end of each subscription cycle, your subscription will be automatically renewed for successive subscription cycles, unless you notify us, by email to firstname.lastname@example.org, at least 30 days before the end of the subscription cycle, that you wish to terminate your subscription. Your account and subscription will then be terminated upon the end of that subscription cycle.
10.3. In addition, we may terminate your account on, and subscription to, the Service, upon the end of any then-current subscription cycle, by proving you a prior notice of termination by email (to the email you provided upon registration) at least 30 days before the end of the subscription cycle.
10.4. In addition to the foregoing, either party may terminate these Terms:
10.4.1. In the event of a breach of these Terms by the other party, where the breach remains uncured for fifteen (15) days following written notice thereof from the non-breaching party to the breaching party, but if a breach is of a nature that cannot be cured, then the non-breaching party may terminate the terms immediately upon notice to the other party;
10.4.2. If the terminating party is required to do so by law;
10.4.3. If the other party becomes or is declared insolvent or bankrupt, is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which proceedings are not dismissed within sixty (60) days of their commencement, makes an assignment for the benefit of creditors, or takes or is subject to any such other comparable action in any relevant jurisdiction.
10.5. Immediately upon termination of these Terms:
10.5.1. We may terminate your account on the Service and delete Your Data stored in our systems;
10.5.2. You must cease any and all use of the Service and Deliverables;
10.5.3. We will charge you for all then-outstanding Fees (if any) incurred in your final subscription cycle;
10.6. Sections in these Terms that by their purpose of nature should survive termination of these Term, will so survive.
11. Service quality; Service modifications; Disclaimer of Warranty and Limitation of Liability
11.1. We will endeavor to have the Service and Deliverables operate properly. However, as a service that relies on back-end software, predictive algorithms and third party networks and continuous internet connectivity, we do not guarantee that the Service or Deliverables will operate in an uninterrupted or error-free manner, or that it will always be available, free from errors, omissions or malfunctions.
If we receive notice of any failure or malfunction, or if we become aware of them by ourselves, we will attempt to regain the Service’s or Deliverables’ availability as soon as practicable. However, such incidents will not be considered a breach of these Terms.
11.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT IN THE EVENT OF INTENTIONAL MISCONDUCT, BREACH OF CONFIDENTIALITY OBLIGATIONS, YOUR INDEMNITY OBLIGATIONS HEREIN OR INFRINGEMENT OF OUR INTELLECTUAL PROPERTY RIGHTS, NEITHER YOU OR THE COMPANY, INCLUDING THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON THEIR BEHALF, WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, STATUTORY OR PUNITIVE DAMAGES, LOSSES (INCLUDING LOSS OF PROFIT, LOSS OF BUSINESS OR BUSINESS OPPORTUNITIES AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT, CONTRACT, OR IN ANY OTHER FORM OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), ARISING FROM, OR IN CONNECTION, WITH THESE TERMS, ANY USE OF, OR THE INABILITY TO USE THE SERVICE, DELIVERABLES OR THE OUTPUT DATA, ANY RELIANCE UPON THE OUTPUT DATA OR ANY ERROR, INCOMPLETENESS, INCORRECTNESS OR INACCURACY OF THE SERVICE OR THE OUTPUT DATA.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT IN THE EVENT OF INTENTIONAL MISCONDUCT, BREACH OF CONFIDENTIALITY OBLIGATIONS, INFRINGEMENT OF OUR INTELLECTUAL PROPERTY RIGHTS, YOUR INDEMNITY OBLIGATIONS HEREIN OR LIABILITY ARISING FROM FAILURE TO PAY THE FEES DUE, THE TOTAL AND AGGREGATE LIABILITY EACH PARTY (INCLUDING THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON THEIR BEHALF), FOR DAMAGES ARISING OUR OF OR RELATED TO THESE TERMS, THE SERVICE, DELIVERABLES OR THE OUTPUT DATA, SHALL BE LIMITED TO TEN TIMES THE FEES PAYABLE TO US FOR THE SUBSCRIPTION CYCLE IN WHICH THE EVENT PURPORTEDLY GIVING RISE TO THE CLAIM OCCURRED.
11.3. ALTHOUGH WE USE SKILL AND EFFORTS TO DEVELOP THE SERVICE AND DELIVERABLES AND HAVE THE SERVICE AND DELIVERABLES PROVIDE ACCURATE, RELIABLE, EFFECTIVE AND ACTIONABLE OUTPUT DATA, WE DO NOT GUARANTEE, MAKE NO REPRESENTATION, AND PROVIDE NO WARRANTY ABOUT THE RELIABILITY, EFFECTIVENESS, ACCURACY OR COMPLETENESS OF THE SERVICE, DELIVERABLES OR OUTPUT DATA, THE EXPECTED BUSINESS OR CROP RESULTS, OUTCOME OR YIELDS OR ANY OTHER OPERATIONAL BENEFITS FROM UTILIZING THE SERVICE OR DELIVERABLES.
11.4. THE SERVICE AND DELIVERABLES ARE PROVIDED TO YOU “AS IS”. WE DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, DELIVERABLES AND THE OUTPUT DATA, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, NON-INFRINGEMENT, TITLE, SECURITY, COMPATIBILITY OR PERFORMANCE.
12. Support and maintenance
12.1. During the Term, we, either directly or with the assistance of third parties, will endeavor to provide you technical support for technical questions, problems and inquiries regarding the Service, during our business days and hours, and pursuant to the support hours and channels separately conveyed to you.
12.2. We will attempt to respond to your technical questions, problems and inquiries within a reasonable time. However, we –
12.2.1. May decline to provide such support for matters that we deem, at our sole discretion, to require unreasonable time, effort, costs or expenses;
12.2.2. Make no warranties to any specific response-time or to the successful or satisfactory resolution of the question, problem or inquiry.
12.3. For the purpose of our provision of technical support for your technical questions, problems and inquiries, you will cooperate, and work closely with us, to reproduce malfunctions, including conducting diagnostic or troubleshooting activities, as we reasonably request.
13. Intellectual Property.
13.1. The Service and the Deliverables are a proprietary offering of the Company, protected under copyright laws and international copyright treaties, patent law, trade secret law and other intellectual property rights of general applicability. The Service is made available for use and access and is not sold or licensed.
13.2. Except for your limited access to use the Service, Deliverables and the Output Data according to these Terms, these Terms do not grant you or assign to you, any license, right, title, or interest in or to the Service, Deliverables or the intellectual property rights associated with them. All rights, title and interest, including copyrights, patents, trademarks, trade names, trade secrets and other intellectual property rights, and any goodwill associated therewith, in and to the Service, Deliverables or any part thereof, including computer code, graphic design, layout and the user interfaces of the Service and Deliverables, whether or not based on or resulting from Feedback, but excluding Your Data, are and will remain at all times, owned by, or licensed, to us.
13.3. You may not develop, register, attempt to register or claim any intellectual property rights based on the Service, the Deliverables or the Sensors.
13.4. Unless you notify us otherwise in writing, we may identify you as a customer and indicate you as a customer and user of the Service, on our website and in other online or offline marketing materials and press releases.
14.1. You agree to indemnify and hold harmless us and our directors, officers, employees, and subcontractors, upon our request and at your own expense, from, and against, any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, arising from any third party complaint, claim, plea, or demand in connection with your breach of any provision or representation in these Terms.
14.2. If we seek indemnification from you, we will provide you with (i) prompt written notice of any indemnifiable claim; (ii) all reasonable assistance and cooperation in the defense of such indemnifiable claim and any related settlement negotiations, at your expense; and (iii) exclusive control over the defense or settlement of such indemnifiable claim, provided, however, that we may settle or reach compromise on any such claim without your consent, if and to the extent such settlement or compromise does not impose any liability (monetary, criminal or otherwise) on you. We will have the right to participate, our own expense, in the defense (and related settlement negotiations) of any indemnifiable claim with counsel of our own selection.
15. Governing Law and Venue.
15.1. Regardless of your jurisdiction of incorporation, the jurisdiction where you engage in business, where you access the Service from, these Terms and your use of the Service and Deliverables will be exclusively governed by and construed in accordance with the laws of the State of Israel, excluding any otherwise applicable rules of conflict of laws, which would result in the application of the laws of a jurisdiction other than Israel.
15.2. Any dispute, controversy or claim which may arise out of or in connection with these Terms or the Service, shall be submitted to the sole and exclusive jurisdiction of the competent courts in the Tel Aviv district in Israel. Subject to the following sentence, you and us, each hereby expressly consent to the exclusive personal jurisdiction and venue of such courts, and waive any objections related thereto including objections on the grounds of improper venue, lack of personal jurisdiction or forum non convenient.
15.3. Notwithstanding the foregoing, we may also lodge a claim against you: (a) pursuant to the indemnity clause above, in any court adjudicating a third party claim against us; and (b) for interim, emergency or injunctive relief in any other court having general jurisdiction over you.
16. Assignment. You may not assign these Terms without our prior written consent, which we shall not unreasonably withhold or deny. Any purported assignment without our prior written consent is void. To the greatest extent permissible by law, we may assign these Terms in their entirety, including all right, duties, liabilities, performances and obligations herein, upon notice to you and without obtaining your further specific consent, to a third-party, upon a merger, acquisition, change of control or the sale of all or substantially all of our equity or assets. By virtue of such assignment, the assignee assumes our stead, including all right, duties, liabilities, performances and obligations hereunder, and we are released therefrom.
17. Relationship of the parties. The relationship between the parties hereto is strictly that of independent contractors, and neither party is an agent, partner, joint venturer or employee of the other.
18. Subcontracting. We may subcontract or delegate the performance of our obligations under these Terms, or the provision of the Service (or any part thereof), to any third party of our choosing, provided however, that we remain liable to you for the performance of our obligations under these Terms. You acknowledge and agrees that the technical means by which we provide the Service is at our sole discretion.
19. Complete Terms and Severability. These Terms constitute the entire and complete agreement between you and us concerning the subject matter herein. These Terms supersede all prior oral or written statements, understandings, negotiations and representations with respect to the subject matter herein. If any provision of these Terms is held invalid or unenforceable, that provision shall be construed in a manner consistent with the applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining provisions will remain in full force and effect. These Terms may be modified or amended only in writing, signed by the duly authorized representatives of both parties.
20. No waiver. Neither party will, by mere lapse of time, without giving express notice thereof, be deemed to have waived any breach, by the other party, of any terms or provisions of these Terms. The waiver, by either party, of any such breach, will not be construed as a waiver of subsequent breaches or as a continuing waiver of such breach.