LICENSE AND SUBSCRIPTION AGREEMENT
This License and Subscription Agreement (the "License") sets forth the terms and conditions on which the Licensee may use the Libra Products and Services. Registration for, or use of, the Libra Products and Services shall be deemed to be your agreement to abide by this Agreement including any materials available on the Libra website (www.BeyondXMLSolutions.com) incorporated by reference herein, including but not limited to Libra's Privacy and Security Policy which may be viewed at Security & Privacy.
1. General; Definitions
"Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without the breach of any obligation owed to the Disclosing Party.
"Intellectual Property Rights" means unpatented inventions, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, licenses and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
"License and Subscription Fee" means the fee payable under the Order Form for the provision of the Libra Services during the Term.
"Licensee or You" means the person or entity identified in the Order Form.
"Materials" means any printed materials and electronic documentation provided by Libra and pertaining to the Libra Services.
"Order Form" means the form evidencing the initial subscription for the Libra Services and any subsequent Order Forms submitted online or in written form, specifying, among other things, the number of subscriptions and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of the Order Form shall prevail).
"Term" means one of the following:
a) The period of a trial as specified in the Libra website (www.beyondxmlsolutions.com)
b) The Subscription period as specified in the Order Form
c) The Subscription period of any renewal
"Users" means the Licensee and its employees and consultants who are authorized to use the Libra Services.
2. Grant of Access; Restrictions
With respect to the Libra Services or any Intellectual Property Rights of Libra, You shall not: (i) sell, resell, transfer, assign, distribute or otherwise commercially exploit or make it available to any third party in any way (except that you may allow your Users to access the Libra Services in accordance with the terms of this Agreement); (ii) attempt to gain unauthorized access to the Libra Services or its related systems or networks; or (iii) reverse engineer, decompile, or disassemble the Libra Tools and/or Libra Technology, except as expressly permitted by applicable mandatory law which cannot be superseded.
3. Free trial
3.1. Libra product is available to you on a trial basis free of charge as stated in Libra's web site (www.beyondxmlsolutions.com)
3.2. Any information that was extracted by the Libra Services and any customizations made to or with the Libra Services by or for you during your free trial will be inaccessible to you after the expiration of the free trial term, unless you purchase a subscription to the Libra Services.
3.3. Notwithstanding anything to the contrary herein, the Libra Services during the free trial period are provided on an "AS-IS" basis without any warranty whatsoever. Libra may, but shall have no obligation, provide support services during the free trial period for your use of the Libra Services.
During the Term (as defined below), Users may access Libra's support as described on Libra's website.
5. Term and Termination
5.1. Upon the expiration of the Term, the Service will automatically extend for successive terms at Libra 's then-current fees. You may elect not to extend this Agreement, by notifying Libra in writing at least 30 days prior to the expiration of the Term. Libra reserves the right not to renew the Term of this Agreement, or upon the renewal of the Term, to modify the License and Subscription Fee. Notwithstanding the above, in the case of free trial, Libra reserves the right to terminate free trial period, at any time, for any reason and without notice.
5.2. Libra may immediately terminate this Agreement before the end of the Term if the Libra Services are no longer available for use to subscribers for any reason whatsoever, provided that in such case Libra shall provide you with a refund of a pro-rata amount of the License and Subscription Fee actually paid by you with respect to the then current billing period, as proportionate to the period remaining from the date of termination to the end of such billing period.
5.3. Libra may immediately terminate this Agreement before the end of the Term if you or any of the Users fail to comply with the terms and conditions of this Agreement.
5.4. Termination of this Agreement or an Order Form shall be without prejudice to the survival of provisions in this Agreement which by their nature survive termination.
6. Intellectual Property Rights
Libra alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights in and to the Libra Services, the Content and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Libra Services. The Libra name, Libra logo, and the product names associated with the Libra Services are trademarks of Libra or third parties, and no right or license is granted to use them.
7. Limited Warranty; Disclaimer of Warranties
188.8.131.52. Libra warrants that the Libra Services will perform substantially in accordance with the accompanying Materials during the Term. Your exclusive remedy for breach of this warranty shall be, at Libra's sole discretion, either: (a) termination of this Agreement and the license granted hereunder, and refund of the pro-rata amount of the License and Subscription Fee actually paid by you with respect to the then current billing period, as proportionate to the period remaining from the date of termination to the end of such billing period (if any), or (b) repair or replacement of the Libra Services that does not meet this limited warranty, at Libra's expense. You will receive the remedy elected by Libra without charge. This limited warranty is void if failure of the Libra Services has resulted from accident, abuse, misapplication, abnormal use or a virus, malware or similar intrusion by third party agents.
7.2. Other than the limited warranty set forth in section 7.1 above, the Libra Services and the Content are provided to you strictly on an "As Is" basis. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights in relation to the Libra Services or the Content, are hereby disclaimed to the maximum extent permitted by applicable law by Libra (including its affiliates, directors, officers, employees, agents, contractors, successors or assignees) and its licensors. Without derogating from the aforesaid and other than the limited warranty set forth in section 7.1 above, Libra and its licensors make no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Libra Services, or any content.
8. Internet Delays
The Libra Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Libra is not responsible for any delays, delivery failures, or other damage resulting from such problems.
9. Limitation of Liability
9.1. To the maximum extent permitted by applicable law, in no event shall Libra or anyone on its behalf be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits or confidential or other information, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the Libra Services, the provision of or failure to provide support services, or otherwise under or in connection with any provision of this Agreement, even in the event of the fault, tort (including negligence), strict liability, breach of contract or breach of warranty of Libra or any supplier, and even if Libra or any supplier has been advised of the possibility of such damages.
9.2. NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER, THE ENTIRE LIABILITY OF LIBRA AND ANYONE ON ITS BEHALF UNDER ANY PROVISION OF THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING (EXCEPT FOR ANY REMEDY OF REPAIR OR REPLACEMENT ELECTED BY LIBRA WITH RESPECT TO ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 7.1 ABOVE) SHALL BE LIMITED TO THE REFUND OF THE PRO-RATA PORTION OF THE LICENSE AND SUBSCRIPTION FEES, AS SET FORTH IN SECTION 7.1 ABOVE. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
10. Invoicing and Payment; Taxes
10.1. You will provide us with valid and updated credit card information or alternative billing information reasonably acceptable to Libra.
10.2. If you provide credit card information to Libra, you authorize Libra to charge such credit card for all License and Subscription Fees and other sums owed by you to Libra pursuant to this Agreement and the Order. Charges with respect to the License and Subscription Fees shall be made in advance, either annually or according to any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, we will invoice you in advance according to the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net Thirty (30) days from the invoice date.
10.3. Libra will automatically renew and issue an invoice to you for any applicable billing period, or as otherwise mutually agreed upon.
10.4. Unless otherwise stated in the Order, Libra fees (including the License and Subscription Fees) are exclusive of all taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction, excluding only taxes based solely on Libra's net income (collectively, "Taxes"). You are responsible for paying all Taxes associated with your purchases hereunder and under the Order Form.
11.1 Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (i) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
11.2 Libra shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Data. Libra shall not (i) modify your Data, (ii) disclose your Data except as compelled by law according to Section 11.3 below or as expressly permitted in writing by you, or (iii) access your Data except to provide the Libra Services or prevent or address service or technical problems, or at your request in connection with customer support matters.
11.3 The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prompt prior notice of such compelled disclosure to allow the Disclosing Party a reasonable opportunity to contest the disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil or criminal proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
12. Entire Agreement
This License and the Order constitute the entire agreement between You and Libra relating to the Libra Services and the Materials and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Libra Services or the Materials.
This Agreement shall be exclusively governed by the laws of the State Israel without regard to the choice or conflicts of law provisions thereof, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the courts of Israel. No text or information set forth on any other purchase order, pre-printed form or document (other than an Order Form, if applicable and where expressly stated that it amends or deviates from the terms of this Agreement) shall add to or vary the terms and conditions of this Agreement. This Agreement, together with any applicable Order Form, comprises the entire Agreement between the parties and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. The failure of Libra to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Libra in writing. This Agreement may not be assigned by you without the prior written approval of Libra and any assignment without such prior written consent shall be void.