Terms of Service – September 2022
Last Revised: September 21, 2022
These terms of service (“Terms”) form a legal agreement between the entity agreeing to these terms (“Customer” or “you”) and Bringg, and sets forth the terms and conditions governing Customer’s access to and use of the Services (as defined below). “Bringg” means the Bringg legal entity that has contracted with Customer as set forth in the applicable Service Order (as defined below). By entering into a service order, order form, quote, proposal, statement of work or similar ordering document for the provision and use of Services, mutually agreed by Bringg and the Customer, that incorporates these Terms or Bringg’s standard applicable terms of service by reference (the “Service Order”), or by using the Services, Customer agrees to be bound by these Terms (together with the terms of the Service Order, the “Agreement”). In the event of any conflict or inconsistency between these Terms and the terms and conditions of a Service Order executed by the parties, the terms and conditions of the Service Order shall control.
- Use of Services. Subject to payment of the Consideration (as defined below) and compliance with the Agreement, Bringg (i) agrees to make available to you, your Users (as defined below), your Mobile Personnel (as defined below) and End Customers (as defined below), during the term of the Agreement, the services offered by Bringg and its affiliates to which you subscribed in the Service Order, which may include, as applicable, Bringg’s web and mobile based applications, the Bringg API, and the Bringg on Salesforce® offering (collectively, the “Services”), and (ii) grants to you, your Users, your Mobile Personnel and End Customers a personal, non-exclusive, non-transferable license to use the Services and the software underlying the Services (the “Software”), under the terms and conditions set forth in the Agreement and any documentation made available to you by Bringg (the “License”). The Services and License may be used only in the territory set forth in the Service Order. For the purpose of this Agreement, “Users” shall mean the Admins, the Dispatchers and any other individuals authorized by Customer to use the Services, such as Customer’s employees, consultants, contractors and agents, and third parties with which Customer transacts business, who have been supplied user identifications and passwords for that purpose.
- Other Rights and Limitations. Other than the rights expressly licensed hereunder, no other rights or interests whatsoever in the Software and/or Services are transferred or granted to Customer or any affiliate thereof. Customer may not, and may not permit or aid others to, translate, reverse engineer, decompile, disassemble, update, modify, reproduce, duplicate, copy, distribute or otherwise disseminate all or any part of the Software, or extract or attempt to extract source code from the object code of the Software or create derivative works of the Software. Customer may not make any commercial use of the Services or the Software, whether or not for consideration, other than for Customer’s own internal business purposes.
- Administrator Account. When Customer subscribes to the Services, Customer will be required to create one or more administrator accounts (each an “Administrator Account”) that allows the administrators of the Services (the “Admins”) to determine certain administrative functions made available by the Services, such as the ability to track Customer’s mobile workforce and the choice of the dispatchers (such as store users) (the “Dispatchers”) who will be granted limited access to the Services to carry out certain activities, as determined by the Admins. When Customer creates an Administrator Account, Customer will be required to insert certain details of its Admins and Dispatchers (where applicable), such as business email address, user name, password, telephone number, mobile telephone number, and office address. Bringg may notify the Admins and the Dispatchers (where applicable) of any operational issues encountered in connection with the use of the Services through email or SMS communications. Customer represents and warrants to Bringg that it shall obtain all rights and/or receive all consents, as may be required under applicable law from the Admins and Dispatchers (where applicable) for Bringg to send the aforesaid SMS or email communications. Each such account is personal and is not transferable. By creating an account, Customer represents and warrants to Bringg that Customer has provided accurate, complete and updated account information. Customer is responsible for maintaining the confidentiality of Customer’s account, and user name and password, and Customer agrees to accept responsibility for all activities that occur under Customer’s account.
- Mobile Personnel. The Services enable Customer to add members of Customer’s mobile workforce to the Services (each, a “Mobile Personnel”). When adding Mobile Personnel to the Services, Customer must provide Mobile Personnel’s telephone number, following which a link will be sent to such Mobile Personnel by SMS, email or other communication means through which the Mobile Personnel will be able to download the Bringg mobile application to his or her mobile device. Customer represents and warrants to Bringg that it shall obtain all rights and/or receive all consents, as may be required under applicable law from the Mobile Personnel for Bringg to send an SMS, email or other communication means as aforesaid to the Mobile Personnel. Installation of the Bringg mobile application on a Mobile Personnel’s mobile device is subject to the Mobile Personnel agreeing to comply with the terms and conditions and/or end-user agreement embedded in the Bringg application and permitting Bringg access to the location functionality of the Mobile Personnel’s mobile device. Customer will be fully responsible for compliance by Customer’s Mobile Personnel with such terms and conditions and/or end-user agreement. Bringg will have access to information regarding the Mobile Personnel’s location whenever the Bringg application is running on their respective mobile device and may store such information or a portion thereof. Each Mobile Personnel is responsible for the availability and cost of an internet connection for his or her mobile device that he or she uses to access the Services. The Services will not be available for or in respect of a Mobile Personnel whose mobile device is not connected to the internet for whatever reason.
- Customer shall have the right to integrate third party delivery services (each, an “External Carrier”) with the Services, subject to Bringg’s written approval of each such External Carrier, and, as applicable, further subject to each such External Carrier and entering into or having entered into, an integration agreement with Bringg in a form and substance reasonably satisfactory to Bringg. When External Carrier delivery personnel are fulfilling their services to Customer, such delivery personnel will be considered Mobile Personnel and the provisions of this Agreement applicable to Mobile Personnel shall apply to such delivery personnel, mutatis mutandis. Where Customer elects to receive the services from an External Carrier through a commercial contract that Bringg has executed with such External Carrier (“OneTouch Program”), such services will be subject to supplemental OneTouch terms and conditions available at https://www.bringg.com/onetouchsupplement/, as may be updated from time to time. External Carriers’ services under the OneTouch Program may be subject to Customer agreeing to External Carriers’ end user terms and conditions, made available to Customer by Bringg.
- Customer instructs Bringg to provide Customer Data (as defined below) to each of its External Carriers and/or partners (e.g., providers of shipping and fulfillment APIs) in connection with Bringg’s provision of the Services. Bringg will not be responsible for any act or omission of the External Carrier and/or the performance or functionality of any External Carrier services or software. Bringg agrees to use commercially reasonable efforts to integrate with such External Carriers; provided, however, that Customer acknowledges that certain aspects of integration activities are outside of Bringg’s control and agrees that a failure by Bringg to integrate with such External Carriers despite Bringg’s commercially reasonable efforts shall not constitute a breach of the Agreement by Bringg. External Carrier integrations may require additional fees and will be quoted upon request.
- End Customers. The Services may enable Customer to add Customer’s customers to the Services (“End Customers”). When adding one of End Customers to the Services, Customer must provide his or her mobile telephone number and/or email address, following which a link will be sent to the End Customer by SMS, email or other communication means through which the End Customer will be able to access a webpage to track the arrival of Customer’s personnel to the End Customer’s location. Customer represents and warrants to Bringg that it shall obtain all rights and/or receive all consents, as may be required under applicable law from the End Customers for Bringg to send an SMS, email or other communication means as aforesaid to the End Customers. Bringg may have access to information regarding the End Customers’ location through the Bringg webpage and may store such information or a portion thereof. Each of the End Customers is responsible for the availability and cost of an internet connection for his or her mobile device that he or she uses to access the Services. The Services will not be available for or in respect of End Customers whose mobile device is not connected to the internet for whatever reason.
- Support Customer will be entitled to support in accordance with the applicable service level agreement terms (“SLA”), as purchased by Customer in the Service Order. Bringg’s SLA offerings, as in effect from time to time, are currently available at http://bringg.com/sla.
- Consideration. In consideration for the Services described in the Service Order and the License granted hereunder, Customer will pay to Bringg the fees detailed in the Service Order (the “Consideration”). The fixed portion of the Consideration will be invoiced by Bringg annually in advance, and will be non-refundable, and Services ordered under an applicable Service Order and their respective payment obligations are non-cancelable. The variable portion of the Consideration (e.g., communication charges, overage fees and travel-related expenses) will be invoiced monthly in arrears. Payment is due within thirty (30) days of delivery of the applicable invoice. It is agreed that all past due amounts under this Agreement shall bear interest at the maximum rate permitted by law, beginning with the date on which the applicable amount became due. Further, if Customer is late on payment for the Services, Bringg may suspend the Services and/or terminate the Agreement for breach. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Bringg in collecting any delinquent amounts. Following the Initial Term, except as otherwise agreed in writing, Bringg may update the Consideration on an annual basis.
- Third Party Fees. Bringg’s prices and fees do not include payments to providers of third party services that are or may be integrated into the Services, such as SMS service providers and credit card payment vendors (“Third Party Fees”). Customer will be solely responsible for payment of all Third Party Fees. In the event that Bringg pays any Third Party Fees on Customer’s behalf, Customer will promptly reimburse Bringg in full within thirty (30) days of Bringg providing Customer with reasonable proof of payment.
- Taxes. All payments under this Agreement are of net income. Customer shall bear all value added, state, local, withholding, and other taxes or other charges applicable to the Services and support (but not any taxes based upon Bringg’s gross revenues or net income such as corporate income taxes). Customer will pay any such taxes or charges no later than within thirty (30) days after Customer’s receipt of proper bills or statements from Bringg or the taxing authorities.
- Term. The initial term of this Agreement commences on the date set forth in the Service Order and shall continue in effect for the Initial Term set forth in the Service Order, or unless terminated by a party in accordance with Section 3.2 below (the “Initial Term”). This Agreement shall thereafter automatically renew for successive periods of one year each (each, an “Additional Term”) unless terminated by either party effective as of the end of the Initial Term or the applicable Additional Term with at least ninety (90) days prior written notice or in accordance with Section 3.2 below (the Initial Term together with each Additional Term, the “Term”). If the Agreement is terminated for any reason other than Bringg’s uncured material breach, Customer will be responsible for the Consideration covering the remainder of the then-current term.
- Termination for Cause. Notwithstanding the foregoing, either party may terminate this Agreement forthwith by providing written notice to the other party:
- in case of material breach of the other party that has not been cured within fifteen (15) days following a written notice thereof from the non-breaching party.
- upon giving written notice to the other party in the event the other party should become insolvent, or upon the filing by or against the other party of a petition in bankruptcy or reorganization, or upon the filing of a request for the appointment of a trustee, liquidator or receiver for such party, or upon an assignment for the benefit of creditors by such party, or such similar action, should said event continue for a period of thirty (30) days.
- Effects of Termination. Upon termination of this Agreement for any reason, the License granted hereunder shall terminate automatically and Bringg shall cease to provide all Services. Termination of this Agreement shall not release Customer of its requirement to pay any Consideration it was required to pay prior to termination of this Agreement and all such Consideration shall become immediately due and payable.
- Survival. Termination shall not relieve either party of those obligations which would survive termination, including without limitation Section 2 (CONSIDERATION), this Section 3.4 (SURVIVAL), Section 4 (CONFIDENTIALITY; PROPRIETARY RIGHTS; PRIVACY) and Section 5.5 (LIMITATION OF LIABILITY).
CONFIDENTIALITY; PROPRIETARY RIGHTS; PRIVACY
- Confidentiality. Neither party (the “Recipient”) shall disclose to third parties nor use for any purpose other than for the proper provision or use (as the case may be) of the Services any Confidential Information received from the other party (the “Discloser”) in whatever form under this Agreement or in connection with the Services without the prior written permission of Discloser. “Confidential Information” shall mean all data and information, not made available to the general public, oral or written, that relates to Discloser’s past, present, or future research, development or business activities, information relating to services, developments, inventions, processes, plans, financial information, customer and supplier lists, forecasts, and projections and the terms and conditions of this Agreement and the Services pricing. Recipient shall limit access to Confidential Information to those of its personnel for whom such access is reasonably necessary for the proper use or provision (as the case may be) of the Services under this Agreement. Such personnel shall be bound by written confidentiality obligations not less restrictive than those provided for herein. Recipient shall be responsible for any breach of this Agreement by any of its personnel. Recipient shall protect the Confidential Information with the same degree of care, but no less than a reasonable degree of care, to prevent unauthorized disclosure or use of Confidential Information, as Recipient exercises in protecting its own proprietary information. The aforementioned limitations shall not apply to Confidential Information which the Recipient can demonstrate: (i) was in its possession or known by it prior to receipt from Discloser; or (ii) is or becomes generally available to the public without breach of the confidentiality obligations herein contained; or (iii) was disclosed by a third party without breach of any obligation of confidentiality; or (iv) was independently developed without use of any Confidential Information of the Discloser; or (v) is disclosed pursuant to administrative or judicial action, provided that Recipient gives Discloser prompt notice thereof so that Discloser may seek a protective order or other appropriate remedy. If only a portion of the Confidential Information falls under any of the above alternatives, then only that portion of the Confidential Information shall be excluded from the use and disclosure restrictions of this Agreement.
- Proprietary Rights. Customer acknowledges and agrees that the Services and the Software are proprietary products of Bringg and its licensors, protected under patents, copyright laws and international treaties. Customer further acknowledges and agrees that all right, title and interest in and to the Services and the Software, including associated intellectual property rights and all improvements, modifications, revisions, derivative works, NRE, customization and integration work product, customer feedback, suggestions and white-label branded applications, are and shall remain the sole and exclusive property of Bringg and its licensors. This Agreement and the rights granted hereunder do not convey to Customer any interest in or to the Software. Customer shall not remove or alter any copyright notice, trademark or other proprietary or restrictive notice or legend affixed to, embedded, contained or included in the Software or Services or any material provided by Bringg.
- Use Restrictions. The following restrictions apply to Customer’s use of the Services. Failure to comply with such restrictions will constitute a breach of this Agreement: (a) Customer may not create a browser, frame, border environment or GUI around the Services application or website; (b) Customer may not actually or seek to interfere with or disrupt the operation of the Services; (c) Customer may not actually or seek to interfere with or violate other users’ rights to privacy and other rights, or harvest or collect data and information about users without their express consent, whether manually or with the use of any robot, spider, crawler, site search or retrieval application, or other automatic device or process to access the Services applications, websites, servers or databases and/or retrieve index and/or data-mine information; (d) Customer may not actually or seek to impersonate any person or entity or provide false or misleading personal information; (e) Customer may not transmit or otherwise make available through or in connection with the Services any virus, “worm”, “Trojan Horse”, “time bomb”, “web bug”, spyware, or any other computer code, file, application or program that is malicious by nature or defective, and may, or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; (f) Customer may not use the Services for any illegal, unlawful or unauthorized purposes; (g) Customer may not access any Service in order to build a competitive product or service; (h) if the Services include content from Google Maps, including map and terrain data, photographic imagery, and traffic data, Customer may use such content only in accordance with the Google Maps APIs Master Terms – Premium Plan as in effect from time to time, currently located at https://enterprise.google.com/maps/terms/amer/premium-maps-terms.html; and (i) if the Services include the Twilio SMS messaging service, Customer shall comply with the Twilio’s Messaging Policy at https://www.twilio.com/legal/messaging-policy; the Twilio Service and Country Specific Requirements at https://www.twilio.com/legal/service-country-specific-terms#country-specific-requirements; and the Twilio’s Acceptable Use Policy at https://www.twilio.com/legal/aup.
- Communications. Customer hereby acknowledges and agrees that Bringg may use the contact details Customer provides to Bringg, for the purpose of informing Customer regarding Services performance, new products, offers, services and features which may interest Customer, and to send to Customer other promotional material, transmitted to the e-mail addresses Customer has provided to Bringg in the registration process or otherwise in connection with the Services. Customer may withdraw its consent by sending a written notice to Bringg by e-mail to the following address: firstname.lastname@example.org, or alternatively following the instructions for removing the applicable e-mail address from the mailing list which are available in the e-mail transmitted to Customer. Customer represents and warrants that the foregoing consent is applicable to all Customer personnel e-mail accounts that may be provided to Bringg as aforesaid.
WARRANTY; INDEMNIFICATION; LIMITATION OF LIABILITY
- Limited Warranty. Bringg warrants that: (a) the Services will perform in accordance with the Services documentation made available to Customer from time to time in all material respects, unless the failure was caused by any of the circumstances listed in Section 6.3 below or by combination of the Services with any other goods or services or by use not in accordance with Bringg’s documentation; and (b) support services will be provided in accordance with the applicable SLA offering purchased by the Customer (the “Warranty”). With respect to mobile applications, the Warranty extends only to use with iOS and Android versions that are officially supported by Apple and Google, respectively, and is subject to the user of such application having installed all updates made available by Bringg via the applicable application store. In the event of a breach of the Warranty that has not been remedied by Bringg within thirty (30) days of Customer’s written notice to Bringg of a breach of the Warranty and Bringg’s written confirmation that a Warranty breach has occurred, Customer’s sole remedy shall be to terminate this Agreement in accordance with Section 3 above and to receive a refund of amounts paid by Customer for use of the Services for the period following the effective date of termination, less a reasonable processing fee.
- Warranty Disclaimer. OTHER THAN THE EXPRESS WARRANTIES SET FORTH IN SECTION 5.1 ABOVE, THE SERVICES, SOFTWARE AND SUPPORT ARE MADE AVAILABLE “AS IS” AND WITHOUT ANY OTHER WARRANTY OR CONDITION WHATSOEVER, EXPRESS OR IMPLIED. BRINGG DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY AND NON-INFRINGEMENT. BRINGG DOES NOT WARRANT THAT THE USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE AND IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR ANY OTHER LOSS OR DAMAGE RESULTING FROM THE TRANSFER OF DATA OVER COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, AND CUSTOMER ACKNOWLEDGES THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.
- Indemnification by Bringg. Bringg agrees to indemnify Customer from any third party claims of infringement by the Software or Services of such third parties’ intellectual property rights, and to pay all direct costs, settlements, or judgments finally awarded; provided, however, that (1) Customer shall have given Bringg a prompt written notice of the relevant claim, suit, demand, notice or action alleging such infringement; (2) Customer shall reasonably cooperate with Bringg in the defense and settlement thereof; and (3) Bringg shall have sole control of the defense of such claim, suit, demand, or action and the settlement or compromise thereof. The foregoing shall not apply to the extent that the infringement arises: (i) from the use of the Services or Software in a manner for which they were not intended, (ii) from the use of the Services or Software not in compliance with the documentation or instructions provided by Bringg, (iii) where the infringement results from the alteration or modification of the Services or Software, or the combination of the Services or Software with a third party’s systems, services or applications, where the unaltered or unmodified Services or Software, or the Services or Software standing alone, as applicable, would not have infringed upon third party’s rights, or (iv) from a failure of Customer’s Mobile Personnel to download and install any software update distributed by Bringg for their mobile device applications. In the event that an injunction is obtained against the Customer’s and/or Customer’s Mobile Personnel’s and/or End Customers’ and/or Users’ use of the Services arising from a suit, claim or proceeding, or if Bringg anticipates that there is a likelihood of a claim of infringement, or determines that the following steps will assist in defending or settling a claim, suit, demand or action, Bringg may, at its option and expense, either (a) procure for Customer, its Users, the Mobile Personnel and the End Customers the right to continue using the Services; or (b) replace or modify the Services so that use thereof no longer infringes upon such intellectual property rights, so long as the utility or performance of the Services is not materially adversely affected by such replacement or modification; or (c) where (a) or (b) are not practicable, to terminate this Agreement. If Bringg chooses to replace or modify the Services in accordance with subsection (b) above, Customer will and will cause Customer’s Mobile Personnel to update all applicable Bringg mobile device applications. THIS SECTION 5.3 SETS FORTH CUSTOMER’S AND ITS MOBILE PERSONNEL’S, END CUSTOMERS’ AND USERS’ EXCLUSIVE AND ENTIRE REMEDY AGAINST BRINGG WITH RESPECT TO ANY ACTION, SUIT, DEMAND OR CLAIM FOR AN ALLEGED INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES OR SOFTWARE OR ANY COMPONENT THEREOF.
- Indemnification by Customer. Without derogating from any applicable law, Customer agrees to indemnify and hold harmless Bringg and its employees, officers, directors and agents, from and against all losses, claims, expenses, costs, liabilities and demands resulting from or in connection with (a) Customer’s and/or its Mobile Personnel’s, End Customers’ or Users’ use or alleged use of the Services that is not in accordance with this Agreement, any applicable agreements with Customer’s Mobile Personnel and the End Customers or Users, and Bringg’s documentation and instructions, (b) breach or alleged breach by Customer and/or its Mobile Personnel and/or End Customers and/or Users of any law, rule or regulation, (c) a claim or allegation that Customer Data, or any program code or applications created by or for Customer, infringes or misappropriates the intellectual property rights of a third party; and (d) failure by Customer to obtain the Privacy Consents or the consent of any Mobile Personnel, End Customer or User to receive any SMS, email or other messages as part of the Services.
- Limitation of Liability. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, BRINGG’S CUMULATIVE LIABILITY TO CUSTOMER, CUSTOMER’S MOBILE PERSONNEL, END CUSTOMERS, USERS, AND ANY THIRD PARTY FOR ANY LOSS, COST OR DAMAGE RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR USE OF THE SERVICES AND/OR SOFTWARE AND/OR MOBILE APPLICATIONS AND/OR SUPPORT SHALL NOT EXCEED THE TOTAL CONSIDERATION ACTUALLY PAID BY CUSTOMER HEREUNDER DURING THE ONE-YEAR PERIOD PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE ALLEGED LIABILITY. IN NO EVENT SHALL BRINGG BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOST DATA OR LOST PROFITS, EVEN IF BRINGG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Mobile Personnel Compensation. Customer acknowledges and agrees that the data available via the Services is not intended for determining compensation due to any Mobile Personnel or any third party, and Bringg shall have no liability with respect to any such use.
- Third Party Products and Services. The Services may incorporate or rely on third party products and/or services, including without limitation, maps, SMS and other messaging services, information regarding traffic and road conditions, driving directions, payments and the GPS and internet functionality in Mobile Personnel’s and the End Customers’ mobile devices. Bringg makes no representations regarding, and disclaims any responsibility or liability for, the accuracy, reliability or availability of such third party products and/or services and any information provided by the Services in reliance thereon.
- Allocation of Risks. The limited warranties, warranty disclaimers, exclusive remedies and limited liability provisions set forth herein are fundamental elements of this Agreement and the Services provided hereunder, and allocate risk under this Agreement between Customer and Bringg in light of the fees charged by Bringg for provision of the Services and support.
- Third Party Software. The Services and Software may use or include third party software, files and components that are subject to open source and/or third party license terms (“Third Party Components”). Customer’s right to use such Third Party Components as part of, or in connection with, the Services and Software is subject to any applicable acknowledgements and license terms accompanying such Third Party Components, contained therein or related thereto. If there is a conflict between the licensing terms of such Third Party Components and this Agreement, the licensing terms of the Third Party Components shall prevail in connection with the related Third Party Components. Such Third Party Components are provided on an “AS IS” basis without any warranty of any kind and shall be subject to any and all limitations and conditions required by such third parties. Under no circumstances shall the Services or Software or any portion thereof (except for the Third Party Components contained therein) be deemed to be “open source” or “publicly available” software.
- Publicity. Each party may use the other party’s name, trademarks, logos, etc. in its publicity and marketing materials, including in the list of customers or partners on its website, and in case studies regarding use of the Services. In addition, promptly following the execution of the Service Order, upon Bringg’s request, the parties will issue a joint press release regarding their commercial cooperation.
- Export Control. The Software and Services and all related technical information, documents and materials are subject to export controls under United States and Israeli law. Customer will (i) comply strictly with all legal requirements established under these controls, and (ii) cooperate fully with Bringg in any official or unofficial audit or inspection that relates to these controls, and (iii) not export or re-export the Software or Services without the appropriate applicable governmental licenses or approvals.
- Force Majeure. Except for payment obligations, neither party shall be liable for any costs or damages due to nonperformance under this Agreement, arising out of any cause or event not within the reasonable control of such party and without its fault or negligence, such as an act of God, act of war, labor disputes, reason of fire, floods, pandemic and epidemic, government restrictions, failure of the internet or any network used to access or provide the Services, failure of service attack, or inability to obtain necessary materials or services from suppliers if no equipment sources for such suppliers or services are readily available.
- Governing Law and Jurisdiction. This Agreement shall be construed and governed in accordance with the laws of the State of Israel, regardless of its conflict of laws rules, and the competent courts of Tel Aviv-Jaffa shall have sole and exclusive jurisdiction over any dispute under this Agreement.
- Assignment. Customer may not assign, sublicense or make available to any other person or entity, this Agreement, or any rights or obligation hereunder, or the Services or any part thereof, in whole or in part without the prior written consent of Bringg, and any attempt by Customer to so assign, sublicense or make available shall be deemed null and void. Bringg may freely transfer and assign its rights and obligations hereunder to an affiliate or to a third party that acquires all or substantially all of the assets subject to this Agreement or securities of Bringg or any entity into which Bringg shall merge or any affiliate thereof.
- Modification or Amendment. This Agreement may only be modified or amended by a written instrument duly executed by each of the parties. Bringg may add features or functionality or improve or change or modify the Services at any time at its sole discretion. Bringg will not intentionally remove material features or functionality, other than beta or test features or functionality, during the Term.
- Notices. All notices to be sent by one party to the other under this Agreement or for any purpose relating to this Agreement will be sent to the following email address: to Bringg: email@example.com; to Customer: the primary billing email address set forth in the Service Order; or alternative addresses provided in writing by each party for the purpose of receiving legal notices. All notices delivered in accordance with this Section shall be deemed received one day after they are sent by email.
- Severability. Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof, which shall be interpreted so as to give maximum effect to the intention of the void or unenforceable term.
- No Waiver. 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 hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
- Title. Titles used in this Agreement are for purposes of convenience of reference only and shall not be considered in constructing this Agreement.
BRINGG ON SALESFORCE® ADDITIONAL TERMS
The following additional terms and conditions, set forth in this Section 7, apply solely with respect to the subscription to the Services when they interoperate with SFDC Products (as defined below) (“Bringg on SFDC” or, as used in this Section 7, “Services”):
- “SFDC” means salesforce.com.
- “SFDC Products” means the relevant SFDC products and/or services provided by SFDC and which interoperate with the relevant Services (as may be indicated in the Service Order) and which are governed by the SFDC Terms (as defined below).
- “User Subscriptions” means each subscription license purchased by Customer for the number of Users indicated in the applicable Service Order for such Users to access and use the Services in accordance with this Agreement.
- User Subscriptions. Where applicable to the respective SFDC Products identified in the respective Service Order and unless otherwise specified therein, (i) the Bringg on SFDC Services are purchased as User Subscriptions and may be accessed by no more than the specified number of Users as set out in the relevant Service Order, (ii) additional User Subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the then current subscription term in effect at the time the additional User Subscriptions are added, and (iii) the added User Subscriptions shall terminate on the same date as the pre-existing User Subscriptions. User Subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
- Customer Responsibilities. Customer shall (i) be responsible for Users’ compliance with this Agreement and ensure such Users shall keep a secure password for his/her use of the Services and change such password frequently and keep such password confidential, (ii) not authorize more Users to access and use the Services than the maximum number of User Subscriptions Customer has purchased from time to time; (iii) be solely responsible for ensuring that Customer has a SFDC administrator who is responsible for the maintenance and upkeep of Customer’s SDFC Products and/or Services; (v) shall not and shall procure that Users shall not make the Services available to anyone other than Users; and (iv) not sell, resell, rent or lease the Services.
- Compliance with Use Limitation. In respect of the Services, Customer shall permit Bringg to verify Customer’s use of the Services is in compliance with the use limitation as set forth in this Agreement and the applicable Service Order, including in order to establish the name and password of each User. Such verification may be conducted no more than once per year (unless a verification reveals any non-compliance), at Bringg’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with Customer’s normal conduct of business. If any such verifications reveal that any password has been provided to any individual who is not an authorized User, then without prejudice to Bringg’s other rights, Customer shall promptly disable such password and Bringg shall not issue any new passwords to any such individual. If any such verifications reveal that Customer has underpaid subscription Fees to Bringg, then without prejudice to Bringg’s other rights, Customer shall pay Bringg an amount equal to such underpayment as calculated in accordance with the prices set out in the then current price list and in accordance with the payment terms set out in this Agreement.
- SFDC Products. This Agreement is between Customer and Bringg. Customer warrants and confirms to Bringg that Customer has a separate valid direct agreement in place with SFDC for Customer’s access to and use of the SFDC Products in connection with the Services (“SFDC Terms”) and such SFDC Terms shall govern and apply to Customer’s use of such SFDC Products in connection with the Services.
- Customer Applications and Code. Customer, a third party acting on Customer’s behalf, or a User may create applications or program code which sits on top of the Services as permitted in the User Guide accessible via: https://zenkraft.com/docs. In such cases, Customer authorizes Bringg and Bringg’s service providers to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Bringg to provide the Services in accordance with this Agreement; provided that Bringg is not responsible or liable in anyway for any such applications or program code or their effect on Services or performance thereof. Subject to the above, Bringg acquires no right, title or interest from Customer or Customer’s licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.
- Customer Data on SFDC. Customer acknowledges and agrees that where SFDC is responsible for the hosting and/or processing of Customer Data, Bringg (i) does not have any responsibility or liability for Customer Data; and (ii) is not liable or responsible for the security and/or for any loss or destruction of any such Customer Data. Bringg is further not responsible for any disclosure, modification, destruction or deletion of Customer Data resulting from the SFDC Products or Customer’s use thereof or from any access by or Customer’s use of any third party products and/or services or in connection with any program code or applications created by or for Customer. Bringg reserves the right to remove (or require SFDC to remove in accordance with the SFDC Terms) any of Customer Data (or third party information) which Bringg reasonably believes breaches any laws or regulations or any third party’s rights or this Agreement and/or is deemed, in our reasonable opinion, to be inappropriate content.
- Warranty Exclusions. Bringg (a) does not warrant that the Services or any program code or applications created by or for Customer in connection with the Services will meet Customer’s requirements; or (b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from Customer’s access to and use of any program code or applications created by or for Customer, the Services through and/or in connection with SFDC Products.
- Additional Limitation of Liability. IN ADDITION TO THE EXCLUSIONS AND LIMITATIONS SET OUT IN THIS AGREEMENT, BRINGG SHALL HAVE NO LIABILITY: (A) FOR THE SFDC PRODUCTS, THIRD PARTY PRODUCTS AND SERVICES OR FOR ANY ACTS OR OMISSIONS OF SFDC OR THE PROVIDERS OF SUCH THIRD PARTY PRODUCTS AND SERVICES, INCLUDING WITHOUT LIMITATION WHERE SUCH ACTS OR OMISSIONS CAUSE A BREACH OF THIS AGREEMENT, OR (B) FOR ANY PROGRAM CODE OR APPLICATIONS CREATED FOR CUSTOMER OR BY CUSTOMER, (C) WHERE ANY FAILURE TO PROVIDE THE SERVICES IS CAUSED BY SFDC, SDFC PRODUCTS OR ANY THIRD PARTY PRODUCTS AND SERVICES OR PROVIDERS OF SUCH THIRD PARTY PRODUCTS AND SERVICES, OR (D) FOR ANY SHIPPING COSTS AND FEES INCURRED BY CUSTOMER, INCORRECTLY SENT SHIPMENTS, MISSING TRADE DOCUMENTS OR COMPLIANCE REQUIREMENTS, AND CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR ALL SHIPPING REQUIREMENTS AND HOW CUSTOMER SHIPS USING THE SERVICES.
- No Third-Party Beneficiaries. Except for SFDC as set forth in the SFDC Terms, there are no other third-party beneficiaries to this Agreement. No other person who is not a party to this Agreement shall have any right to enforce any term of this Agreement.