Terms and Conditions
These Terms and Conditions shall apply to Customer’s use of Exceed’s customer interaction management software solution enabling personalized and automated interactions with customers and potential customers (the “Contacts”) (the “Service“, which shall also include all updates, upgrades, improvements, bug fixes, and other modifications made in connection therewith) on such terms detailed in one or more ordering documents signed by the parties, including any exhibits thereto (each, an “Order Form”). Customer’s execution of an Order Form referencing these Terms and Conditions shall be deemed Customer’s agreement to these Terms and Conditions. These Terms and Conditions and all Order Forms (together, the “Agreement“) represent the parties’ entire understanding regarding the Service and shall govern over any different or additional terms of any purchase order and no terms included in any such purchase order shall apply to the Services. In the event of a conflict between these Terms and Conditions and an Order Form, the terms of the Order Form shall prevail. All capitalized terms not defined herein shall have the meanings attributed to such terms in the Order.
- The Service
- Subject to Customer’s compliance with these Terms and Conditions and payment of all applicable fees, Exceed will grant to Customer the right, during the term set forth in the Order Form, to use the Service on Customer’s account(s) detailed in the Order Form (the “Account“). Use of the Service for any other purpose shall require Exceed’s prior written consent and shall be subject to such terms (including pricing) to be separately agreed.
- Exceed may make modifications, additions and upgrades to the Service, as it deems necessary. The terms of these Terms and Conditions will apply to any updates that Exceed may make available to the Customer.
- Exceed shall grant Customer a limited, revocable, non-exclusive and non-transferable license to use the Service during the term of this Agreement on the Account for the purposes stated herein.
- Exceed shall make commercially reasonable efforts to ensure that the Service will be accessible and functional on a continuous basis, with the exception of scheduled maintenance periods. The foregoing notwithstanding, Customer acknowledges and agrees that the Service may be inaccessible or inoperable at any time and for any reason, including without limitation due to equipment malfunctions, unscheduled maintenance or repairs, or causes that are beyond Exceed’s reasonable control or not reasonably foreseeable by Exceed, including without limitation interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures.
- In using the Service, Customer will adhere to all applicable laws, rules and regulations, including those regarding the transmission and distribution of information or material over the Internet, including without limitations, those applicable to privacy, spam, etc., and will otherwise adhere to generally accepted standards of Internet usage.
- Customer acknowledges that since certain functions of the Service are dependent on the integration with third party’s platforms and/or services (including, without limitation various electronic mail platforms), Exceed shall not be responsible in any way for any interruption in the performance of Service which occurs as a result of: (i) any change or modification made in such third party’s platform/product and/or technical problem caused to such third party’s web based platform/product; or (ii) the impediment of access to such third party’s web based platform/product by Exceed.
- Data and Contact Information
- Customer shall provide Exceed all (i) message templates, including without limitation, questions to Contacts and answers to Contacts’ questions and guidelines for transfer of conversation to an actual salesperson on behalf of Customer (“Data”); and (ii) necessary information with respect to the Contacts (the “Contact Information”). The Data and the Contact Information will be saved on Exceed’s servers and will be used by Exceed in order to provide the Customer with the Services.
- It is Customer’s sole responsibility to ensure that (i) it has all necessary rights and legal bases to process the Contact’s personal Data, including but not limited to having obtained all necessary Consents (as defined below) from each of the Contacts to provide Exceed the Contact Information, to allow Exceed to contact the Contacts on behalf of the Customer and to use the Contact Information in the provision of the Service; and (ii) the Contact Information does not infringe or violate any intellectual property and does not contain any protected information which Customer may not disclose in accordance with any applicable law, rule or regulation.
For the purpose if this Agreement, the term “Consent(s)” shall mean a clear affirmative action and unambiguous indication, separate from other terms and conditions, provided by the Contacts to Customer to the fact that they agree to provide the Customer and/or Exceed with the Contact Information (including the categories of data the Customer wishes to process) and that they agree to the process of Personal Information by Exceed in accordance with the terms contained in this Agreement (including indicating Exceed identity as preforming process on behalf of the Customer), which will include their right to withdraw their Consent and the manner in which they will be able to exercise this right. It is hereby clarified that such Consent shall be in compliance with all applicable laws. The Customer shall fully indemnify, defend, and hold harmless Exceed and its subsidiaries, affiliates, shareholders, agents and suppliers, and their respective officers, directors, shareholders and personnel, from and against any claims, suits, hearings, actions, damages, liabilities, fines, penalties, costs, losses, judgments or expenses (including reasonable attorneys’ fees) arising out of or relating to any breach of the provisions of this Section 2.2.
Notwithstanding, in case of an “unsubscribed” request by a Contact (rather than withdraw of Consent), the Customer shall notify Exceed without further delay after the receipt of such request and in case possible will take actions to make the identifiable information, stored with respect to such Contact, anonymized.
- Customer shall be solely responsible for the completeness and accuracy of the Data and Contact Information provided to Exceed and Exceed has no obligation to review the Data or the Contact Information.
- Customer hereby grants Exceed a license to use the Data and the Contact Information for the provision of the Service during the term of this Agreement. The Data and the Contact Information shall be held and used in accordance with the privacy policies available at https://exceed.ai/customer-clients which constitute an integral part of this Agreement.
- To the extent that Customer is addressing its services to data subjects who, at the time of processing, are in the European Union (“EU”), the Parties agree that Exceed will process Data and Contact Information only on behalf of and on the instructions of Customer, in accordance with the Exceed Data Processing Addendum found at: https://exceed.ai/dpa which is incorporated into this Agreement by reference.
- Customer will pay Exceed the applicable subscription fees for the Service in accordance with the terms of the Order Form (“Fees“). The Fee shall be paid regardless of actual use of the Service and shall be non-refundable.
- All prices and fees indicated in the Order Form are net and exclusive of any taxes (including without limitation any Value Added Tax or other sales tax), customs, tariffs or other charges or fees, except taxes arising from Exceed’s income, all of which will be added to such prices and fees and borne exclusively by Customer.
- Unless stated otherwise in the Order Form, at beginning of each calendar month or year, as applicable, Exceed shall issue Customer an invoice with respect to the monthly fee due for such calendar month, or the annual fee for such calendar year, as applicable, and Customer shall pay such fee within the timeframe stated in the Order Form. Except as otherwise specified in this Agreement, all payments to Exceed will be made in U.S. dollars. Such amounts shall be paid by check, credit card or wire transfer to Exceed’s account in accordance with written instructions provided by Exceed from time-to-time.
- Any payments by Customer that are not paid on or before the date such payments are due under this Agreement shall bear interest of one percent (1%) per month. Interest shall accrue beginning on the first day following the due date for payment and shall be compounded quarterly.
- Term and Termination
- The rights granted under this Agreement shall be in effect from the date stated in the Order Form and shall remain in effect for the term stated in the Order Form (“Initial Term“) unless earlier terminated as set out below. The Initial Term shall be automatically renewed for additional terms of one month each (each a “Renewal Term“), unless a Party provides the other Party with a thirty (30) days written notice prior to the expiration of the Initial Term or any Renewal Term of that Party’s desire not to renew this Agreement.
- Either Party may terminate this Agreement if the other Party breaches any material term or condition of this Agreement and such breach is not remedied within fourteen (14) days after receiving written notice thereof. Notwithstanding the foregoing, Exceed may immediately, by written notice to Customer, suspend or terminate this Agreement and the Services provided hereunder if Customer fails to make any timely payment of fees owed to Exceed, or in case of breach of any of Customer’s representations and warranties under this Agreement.
- Either Party shall have the right to immediately terminate this Agreement, upon written notice, in the event the other Party files a petition in bankruptcy or is adjudicated as bankrupt or insolvent, or makes an assignment for the benefit of creditors, or an arrangement pursuant to any bankruptcy law, or discontinues its business or has a receiver appointed for its business and such receiver is not discharged within ninety (90) days.
- Should this Agreement expire or be terminated for any reason, Exceed will not be liable to Customer because of such expiration or termination for compensation, reimbursement or damages on account of the loss of prospective profits, anticipated sales, goodwill or on account of any expenditures, investments or commitments in connection with Customer’s business, or for any other reason whatsoever flowing from such termination or expiration.
- Upon termination or expiration of this Agreement, Customer shall cease to use the Service. In addition to the aforementioned, the Customer shall, within seven (7) days following such termination or expiration, pay Exceed any outstanding fees owed to Exceed hereunder.
- Termination of this Agreement under this Section 4 shall be in addition to, and not a waiver of, any remedy at law or in equity available to Exceed arising from Customer’s breach of this Agreement or any agreement relating to the Service.
- Termination of this Agreement shall not affect any provision of this Agreement which is expressly or by implication intended to come into force or continue in force on or after the termination.
- Intellectual Property Rights
- The Services, including but not limited to all materials, any computer software (in object code and source code form), data or information employed by Exceed pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by Exceed to provide the Service, including without limitation all patent, copyright, trade secret and any other proprietary rights therein, are and shall remain the sole and exclusive property of Exceed.
- Further, it is hereby agreed that any and all inventions, developments, source codes, improvements, mask works, trade secrets, modifications, discoveries, concepts, ideas and/or designs, including any derivative works (regardless of whether such derivative works were made pursuant to the request and/or specifications of the Customer, and irrespective of any support and/or assistance Exceed may receive, will receive or has received from the Customer, or any third party), modifications and any proprietary information, including, without limitation, any insights which may be provided by the Customer pursuant to Customer’s use of the Service, whether or not patentable or otherwise protectable, and all intellectual property rights associated therewith, which are invented, made, developed, discovered, conceived or created, in whole or in part, independently by Exceed, or jointly with others (including the Customer), in connection to the Service and/or any other confidential or proprietary information of Exceed or which was provided by Exceed to Customer, shall be the sole and exclusive property of Exceed.
- Customer agrees that Exceed may collect statistical and general information, including with respect to the Data and the Contact Information, but always in an aggregated and anonymized form that will not identify any individual about usage of the Service, and use such information analytical purposes and to improve its products and services. In addition, any feedback, suggestions, ideas or other inputs that Customer provides to Exceed in connection with the Service, may be freely used by Exceed to improve or enhance its products and services and, accordingly, all rights to such improvements and/or enhancements, howsoever arising, including as a result of any ideas, inputs or information provided by Customer as aforesaid, shall vest solely with Exceed.
- Restrictions on Use
Customer’s use of the Service is limited to that specifically and explicitly permitted in this Agreement. Customer will not, and will not allow, permit or assist any third party: (i) to attempt to discover any source code or underlying ideas or algorithms of the Service; (ii) copy, reverse engineer, modify, decompile or disassemble the Service; and (iii) provide, lease, rent, lend, license, assign, delegate, or otherwise transfer or use or allow others to transfer or use the Service for the benefit of any third party.
- Each party hereto (the “Receiving Party”) shall keep any confidential and proprietary information (the “Confidential Information”) of the other party (the “Disclosing Party”), in strict confidence, and shall prevent and protect the Confidential Information from unauthorized disclosure or use. The Receiving Party shall not disclose any or all of the Confidential Information of the Disclosing Party to anyone, except to Receiving Party’s employees who need to know such information under this Agreement. Receiving Party shall notify each employee to whom any such disclosure is made that such disclosure is made in confidence and shall be kept in confidence by such employee, and shall ensure that such employee shall be bound, prior to such disclosure, by a confidentiality undertaking with terms not less restrictive in comparison to the terms set forth in this Agreement.
- Information shall not be considered Confidential Information if such information: (i) was or hereafter becomes known to Receiving Party prior to the disclosure by Disclosing Party; or (ii) was at the time of disclosure to Receiving Party, or subsequently became generally available to the public through no act of Receiving Party; or (iii) was received by Receiving Party from a third party without restrictions as to disclosure; or (iv) was independently developed by Receiving Party without use of the Confidential Information of the Disclosing Party; or (v) required to be disclosed by a court or governmental authority or by applicable law or regulation, provided however, that (a) Receiving Party notifies Disclosing Party of such disclosure, to the extent not limited by law; and (b) to the extent possible, provides Disclosing Party with the opportunity to oppose the disclosure or obtain a protective order.
- Warranty Disclaimers
customer acknowledges that the service is being provided ‘as is’. Exceed expressly disclaims any and all warranties, whether express or implied, including without limitation any warranty or condition of merchantability, fitness or suitability for any particular purpose (even if on notice of such purpose), non-infringement, satisfactory quality, that any data stored with Exceed will be secure or otherwise not lost or damaged, or that the services will be uninterrupted or error free. Exceed does not provide any assurance with respect to the outcome of the use of the Service by the Customer and/or that Customer will achieve any results from use of the Service.
- Limitations of Liability
in no event shall Exceed, its affiliates, or anyone on its behalf be liable for any indirect, incidental, special, or consequential damages of any kind, including without limitation any loss of actual or anticipated revenue, customers, business, goodwill, savings, profits or lost data, in connection with this agreement and the service to be provided hereunder, regardless of the cause and whether arising in contract (including fundamental breach), tort (including negligence), or otherwise, even if Exceed has been advised of the possibility of such damages. notwithstanding anything to the contrary herein, in no event shall the total and aggregate liability of Exceed for any claim under any cause of action in connection with this agreement and the service to be provided hereunder exceed the fees paid to Exceed by customer under this agreement in the twelve (12) months preceding such claim.
- Exceed may identify Customer on Exceed’s page(s) and other marketing materials as a user of the Service.
- This Agreement shall be governed by, interpreted and enforced in accordance with the laws of the State of Israel, without regard to its conflict of law principles. All actions, suits or proceedings under or related to this Agreement shall be subject to the exclusive jurisdiction of the competent courts of Tel Aviv, Israel, to the exclusion of all other jurisdictions, however, Exceed shall retain the right to institute proceedings, including interlocutory and/or injunctive relief, in any other territory.
- All notices permitted or required hereunder shall be in writing and shall be sent by email, or personal delivery at the email address, or property address set out in the Order Form or at any other email address, or property address as either Party may specify. Any such notice will be deemed as being received on the date of transmission the e-mail, or personal delivery unless given outside normal business hours in which case such notice shall be deemed as being given on the next business day.
- This Agreement may not be assigned without the prior written consent of the other Party, except that Exceed may assign this Agreement in connection with a merger, acquisition, sale of all or substantially all of Exceed assets or other such corporate reorganization.
- The terms and provisions herein contained together with the Order Form constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all previous communications, oral or written, between the Parties hereto with respect to the subject matter hereof.
- If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
- This Agreement may only be amended by a written document executed by both Parties.
- Nothing contained in this Agreement shall be construed to constitute the Parties to be partners or joint ventures with or agents for one another. Neither Party shall have the authority to, nor shall either, obligated or bind the other in any manner whatsoever.