1. DEFINITIONS

1.1.    In this Agreement, unless the context otherwise requires or expressly stated otherwise: singular terms include the plural and vice versa; the use of any gender shall be applicable to both genders; the words “include” and “including” will not be construed as terms of limitation; the words “day”, “month” and “year” mean respectively, calendar day, calendar month and calendar year. References to any legislation or regulations include references to any amendments or re-enactments thereof from time to time.

1.2. When used in this Agreement, the capitalized terms below have the following meanings:

“Agreement” means this agreement and all Exhibits attached hereto.

“API” means an application programming interference and any accompanying or related documentation, source code, executable applications and other materials made available by Engini. API shall include any existing, future, updated or otherwise modified version(s) thereof furnished by Engini (at its sole discretion) to Partner.

“API Key” means a key code issued by Engini to Partner when purchasing an API License, enabling users to access the API via the Product licensed under such API License.

“API License” has the meaning specified in Section ‎2.1 below.

“Business Day” means Sunday through Thursday, except for official public holidays in Israel.

“Confidential Information” means, information in whatever form disclosed, provided by or on behalf of either Party or any of its affiliates (“Disclosing Party“) to the other Party or any of its affiliates (“Receiving Party“), or to which the Receiving Party otherwise gains access, in the course of or incidental to the performance of this Agreement, to the extent not excluded by the provisions of Section ‎‎13 below.

“End User(s)” means an actual customer in the Territory who has valid licenses from Engini to use the Software.

“Documentation” means the documentation, which is provided by Engini with the Software, which may include, without limitation, user guides, installation instructions and training materials, but excluding source code.

“Intellectual Property” means all intellectual, moral, industrial and/or proprietary property and rights now or hereafter recognized under any applicable law or in equity anywhere in the world, whether issued or pending, registered or unregistered, including, but not limited to (i) all forms of patents and utility models; (ii) inventions, discoveries, (whether patentable or not); (iii) rights associated with works of authorship, including but not limited to copyrights and mask works; (iv) trademarks and service marks, trade names, domain name registration; (v) designs (whether or not capable of registration), design rights; (vi) database rights; (vii) trade secrets and know how; (viii) all rights to confidential or proprietary information; and with respect to the intellectual property included in paragraphs (i) to and including (viii) above – any rights analogous to those mentioned herein; all derivative works thereof; and any current or future applications, renewals, extensions, provisionals, continuations, continuations-in-part, divisions, re-exams and reissues thereof; the right to apply to any of the above; and all of the tangible embodiments thereof.

“Intellectual Property Rights” means all rights, title, and interest in and to any Intellectual Property.

“Product(s)” means any third party information system or software which is not Engini software or any of it’s components.

“Software” means Engini software, including additional related or supplementary
software modules as set forth in the Transaction Documents, and the Documentation; all including
any updates, upgrades and/or other modifications thereto;

“Term” means the Initial Term and any Renewed Term, as defined in Section 14.1 below.

“Territory” means Globally.

“Trademarks” means collectively the trademarks, service marks, trade names, service names and other logos of Engini.

“Credentials” – Upon registration for a User Account, you will provide Engini with a user ID and password to access your account. You are responsible for maintaining the confidentiality of your password and for all of your activities and those of any third party that occur through your account, whether or not authorized by you. You agree to immediately notify Engini of any suspected or actual unauthorized use of your User Account. You agree that Engini will not under any circumstances be liable for any cost, loss, damages or expenses arising out of a failure by you to maintain the security of your password.

2. GRANT OF LICENSE

2.1.    Subject to the terms of this Agreement and payment by Partner of all relevant payments in accordance with Section 7 below, Engini shall grant Partner during the Term a revocable, limited, non-exclusive, non-transferable, non-assignable, license (without right of sublicense) to use and access certain API Keys, solely for Partner’s own internal business operations and only within the Territory, for the number of users and transactions and with respect to the Software modules and applications, all as shall be configured by Engini in the relevant API Key (“API License“).

2.2.    Partner shall not represent itself as Engini’s representative and/or agent. Partner shall not make any representations or give any warranties with respect to Engini and/or with respect to the Software, to any third parties, nor make use of any Intellectual Property of Engini, without Engini’s prior written consent.

2.3.    Partner shall take steps to ensure that any API Keys issues to it will not be used, by Partner, End Users or by any other party, for any application other than the Product for which Engini issued the API Key.

2.4.    In the event of unauthorized use of an API Key by a third party which is not an End User, or a person related to an End User and whose use of the Software is not covered by a valid license issued by Engini to an End User, Engini reserves the right to revoke the relevant API Key and API License of End Users that have purchased the Product. In this event, Partner shall be solely and exclusively responsible for any damages incurred by End Users due to such unauthorized use or the subsequent revocation of the API Key and API License.

2.5.    In order to be granted with the relevant API License for Partner’s use and needs, Partner shall submit to Engini an order (“Order“), via email to the following email addresses partners@engini.io . The Order shall include all relevant details, including (but not limited to) the following: Client Name, Client email, Client phone, chosen subscription and amount of workflows.
OR – Soon it will be possible to send unique referral link to your potential clients so they can sign-up to Engini and be linked to your Referral account.

Any Order which omits any of the above-mentioned details shall be deemed as void. Each Order shall be deemed to incorporate the terms and conditions of this Agreement.

 

2.6.    Engini shall be entitled to accept or reject any Order at its sole discretion, for any reason (or no reason).

3. RESTRICTIONS

3.1.    Partner shall not modify, adapt, translate, decompile, disassemble, or reverse engineer the API or any other software component received from Engini, or in any other manner decode or create derivative works of same, except to the extent specifically allowed under this Agreement or any applicable law.

3.2.    Partner shall not make copies of the API, except as reasonably required under this Agreement or to the extent allowed under any applicable law. Any such copies must include a reproduction of all copyright, trademarks or other proprietary notices appearing in or on the original copy of the API.

3.3.    Partner shall not use, or allow any third party (including End Users) to use, the API in any manner that may be obscene, defamatory or fraudulent, violate any law or regulation or infringe any third party Intellectual Property Rights (“Prohibited Use“). If Engini becomes aware of such Prohibited Use by Partner or any of its End Users, Engini may revoke Partner’s API License, without derogating from any other rights Engini may have or any remedies available to it.

3.4.    Partner shall not provide, loan, rent, lease, sub-license, resell or distribute the Software (or any part thereof) to any third party, use any of the same for a commercial timesharing, service bureau, or outsourcing arrangement, or to otherwise utilize the same in any manner not expressly allowed under this Agreement. Partner shall notify Engini promptly and in writing, if it becomes aware of any unauthorized third party access to, or use of, the API or the Software.

 

3.5.    Partner shall not remove or alter any patent numbers, trade names, trademarks, notices, serial numbers, labels, tags or other identifying marks, symbols or legends affixed to any the API or the Software.

4. Our security and data privacy practices

(a) Data Privacy: Engini’s Privacy Policy is located at https://Engini.ai/privacy/, which is hereby incorporated into and made a part of these Terms of Service by this reference.

(b) Data Processing Addendum: If you are a paying subscriber to the Service, to the extent that Engini processes any Personal Information (as defined in the DPA) contained in User Content that is subject to the Data Protection Legislation (as defined in the DPA), on your behalf, in the provision of the Service, which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms.

(c) Standard Contractual Clauses: To the extent that Engini processes any personal data subject to the European Union General Data Protection Regulations (“GDPR”) and you are the data exporter, your agreeing to these Terms of Service shall be treated as signing the Standard Contractual Clauses and their Appendices attached to the DPA for purposes of any transfer of personal data subject to GDPR in connection with the Service.

(c) Security: We implement and maintain physical, technical and administrative security measures designed to protect the Service and User Content from unauthorized access, destruction, use, modification or disclosure at a level not materially less protective than as described in the Security at Engini page.

(d) Engini Extended Team: We may leverage our employees, those of our corporate affiliates and our contractors (the “Engini Extended Team”) in exercising our rights and performing our obligations under these Terms of Service. Engini Extended Team does not include any Third Party Services (defined below in Section 6) or their employees or contractors. We will be responsible for the Engini Extended Team’s compliance with our obligations under these Terms of Service.

4. TRADEMARKS

4.1.    Partner shall be entitled to use the Trademarks only if expressly permitted to do so in advance and in writing by Engini, and solely to identify the Software or the API for the purposes of this Agreement.

4.2.    In any event, all permitted uses of the Trademarks shall be deemed to be done under a non-exclusive, non-transferable, and non-sublicensable limited license granted by Engini to Partner to use such Trademarks and Partner shall not acquire any right, title, or interest therein.

4.3.    Partner shall not adopt, use or register any names or symbols that are identical, or confusingly similar, to the Trademarks.

4.4.    All uses of the Trademarks shall inure to the benefit of Engini. Partner hereby acknowledges that Engini is the sole and exclusive owner of its Trademarks and that the Trademarks are a valuable asset of Engini – the misuse of which will cause Engini great harm. Partner undertakes not to challenge the validity and enforceability of the Trademarks and to refrain from any actions which may undermine the validity and enforceability of the Trademarks.

4.5.    Partner shall not, directly or indirectly, at any time and in any jurisdiction, (i) use any of the Trademarks for any other purpose except as expressly permitted by Engini, (ii) attempt to misappropriate, circumvent or violate any of Engini’s Intellectual Property, or other interests in the API or the Software, (iii) dilute, damage or endanger the distinctiveness of a Trademark of Engini or depreciate the value attached thereto, nor (iv) modify, translate, or prepare derivative works based on the Trademarks.

 

4.6.    Partner grants to Engini a non-exclusive, worldwide, royalty-free license, during the Term, to use and publish Partner’s name, Product name(s), trademarks, service marks, trade names, service name and associated logos, whether registered or not, including for the purpose of publishing the cooperation with Partner performed in pursuant to this Agreement. Notwithstanding anything to the contrary, Engini shall be entitled to advertise or publish the terms of its cooperation with Partner pursuant to this Agreement, on its website or elsewhere without any prior notice, at its sole discretion.

5. PARTNER’S OBLIGATIONS

5.1.    Partner shall have full responsibility and liability:

(a)    for the Products, including, but not limited to, the development, maintenance, support, and installation of the Products, and to any malfunctions or errors in the Products – including (but not limited to) the interface between the Products and the API or the Software.

(b)    for any malfunction, error or nonconformity caused to the Software or the API by Partner, the Products or End User’s use of the Product.

5.2.    Partner agrees and undertakes to:

(a)    receive its End Users’ explicit consent to Engini’s EULA, as may be amended from time to time.

 

(b)    obtain all the required licenses and paying all the required royalties with respect to the Products.

6. TRAININGS

6.1.    Partner shall ensure that, prior to using the API or providing End Users with the Software or Products, Partner’s employees possess the requisite knowledge and.

6.2.    Engini shall offer to provide Partner with Trainings, at the time scheduled in advance between the Parties.

6.3.    Partner shall bear its own costs for travel and lodging as well as any other expenses incurred in connection with such Training.

 

6.4.    For avoidance of doubt, providing such Training shall not impose any liability or responsibility on Engini for Partner’s usage of the Software or API, with respect to the Products or otherwise.

7. COMMISSION AND PAYMENT TERMS

7.1.   Subject to the terms and conditions of this Agreement and Partner’s compliance with the provisions of this Agreement, in consideration for a successful referral or sale of an Engini license by the Partner that resulted in a purchase of an Engini license, the Company shall pay the Partner Commission, based on the Partner Ranking System and provided all conditions are met (a “Qualified Purchase”).

7.2.   Partner Ranking System

7.2.1.   Affiliate

• • • Eligibility: An Affiliate is a partner who refers a lead to Engini. Only the first partner to refer the lead to Engini will be recognized as the lead’s specific Affiliate, and only if the customer purchases an Engini license.
    • Commision: The Affiliate receives a 10% commission for every paid license the referred customer purchases.
    • Duration: This commission is valid for a period of 24 months from the initial sale date, as long as the customer remains a paying customer.

 

7.3.   Partner referred the Referred Customer through any authorized communication hereunder containing a Tracking Mechanism.

7.4.   Terms of Payment. Subject to the terms and conditions of this Agreement, non-disputable Affiliate Fees shall be paid in United States dollars or in the currency in which the Qualified Purchase was made, at the Company’s sole discretion, within 45 days after the end of the quarter. in which such net sales were received by the company, through bank transfer or any other method chosen by the company. Payment of the partner fee will be made against an invoice that is not in dispute and was issued legally. An invoice that does not match the quarterly report will not be paid by the company until corrected by the partner so that it matches the quarterly report. The partner is responsible for providing the company with complete and accurate details as required in order to transfer the partner’s commissions, and he will bear the sole responsibility for any delay in payment resulting from failure to provide the company with such details in a lawful and timely manner. 

7.5.   Fraud Traffic. In the event that the Company reasonably suspects any Fraudulent Activity by Partner, the Company may delay any payment hereunder to Partner, to verify the relevant transactions and in the event that Company determines, at its reasonable discretion, that any Partner Fees arising out from a Fraudulent Activity, it shall recalculate and/or deduct the Partner Fees accordingly and in its sole discretion, and the Company shall further have the right, in addition to any other right or remedy available to it under this Agreement or applicable law, to render the Designated Links and Tracking Mechanism assigned to such Partner, inoperative, and immediately block Partner’s access to the Program, with no compensation to Partner.

7.6.   Taxes and Costs. The Partner Fees to which the Partner may be entitled hereunder shall be inclusive of all taxes (including value added tax, service tax, sales tax, where applicable), levies and/or other mandatory deductions (which may be deducted at source by the Company). Partner is solely responsible for the payment of all taxes, costs and expenses applicable to, and/or arising from, the conduct of its business and any of its rights and obligations hereunder, including, without limitations, any transfer fees, marketing and promotion fees or any other costs relating to Partner’s performance of its obligations hereunder. In the event that the Company is required to withhold any tax from any payment made to Partner hereunder, in accordance with applicable law, Partner hereby authorizes Company to make such tax withholding, as Company deems fit, at its discretion, to comply with applicable law.

7.7.   Offset. If any excess payment has been made to the Partner, the Company reserves the right to adjust or offset the excess amount against any subsequent fees payable to Partner hereunder. In the event that Partner owes any amount to the Company, either hereunder or under any other agreement or obligation, Company may deduct and offset such amount from any payment to which Partner is entitled hereunder.

8. REPRESENTATIONS AND WARRANTIES

8.1.    Each Party hereby represents, warrants and covenants that:

(a)    It has all requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement;

(b)    it has taken all necessary corporate action on its part required to authorize the execution and delivery of the Agreement and the performance of its obligations hereunder;

(c)     This Agreement is a valid and legally binding obligation thereon, enforceable against it in accordance with its terms;

(d)    Nothing contained in this Agreement or the performance thereof shall place the relevant Party in breach or default of any obligation or other agreement, law or regulation by which it is bound or to which it is subject, or requires the consent of any person or entity, and;

(e)    in performing this Agreement, each Party shall comply with all the applicable provisions of the laws and regulations of the country or countries relevant to each Party’s performance hereunder.

8.2.    In addition to and without derogating from the provisions of Section 8.1 above, Partner hereby represents, warrants and covenants that it holds, and will hold during the Term, all licenses and authorizations that may be necessary under applicable law or agreement or otherwise, for the performance of its obligations hereunder;

8.3.    THE API AND THE SOFTWARE ARE PROVIDED BY ENGINI ON AN “AS-IS” BASIS. ENGINI MAKES NO WARRANTIES OF ANY KIND OR NATURE, WHETHER WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION), IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, WITH RESPECT TO THE API AND THE SOFTWARE.

8.4.    ENGINI EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY WITH RESPECT TO LIABILITY FOR COMPLIANCE WITH LAWS, REGULATIONS, OR OTHER OFFICIAL GOVERNMENT RELEASES APPLICABLE TO PARTNER OR END USER, WHICH SHALL BE THE SOLE RESPONSIBILITY OF PARTNER  OR END USER.

 

8.5.    ENGINI DOES NOT REPRESENT OR WARRANT THAT THE OPERATION OF THE API OR SOFTWARE WILL BE ACCURATE, UNINTERRUPTED OR ERROR-FREE OR THAT THE API OR SOFTWARE WILL OPERATE ON COMPUTERS OTHER THAN THOSE SPECIFIED BY ENGINI.

9. NO EXCLUSIVITY

9.1.    This Agreement does not in any manner establish an exclusive arrangement between the Parties hereto, nor shall it otherwise restrict Engini in its activities, including the entering into similar and/or competing arrangements with other parties.

 

9.2.    Without derogating from the above, Partner shall, during the Term, promptly advise Engini, in writing, of any potential or actual conflict, with Engini’s interests hereunder.

10. RESERVED RIGHTS

10.1.    Partner hereby acknowledges and agrees that all right, title, and interest in and to, Engini’s Intellectual Property, including, but not limited to, the Software and API, are and shall remain the sole and exclusive property of Engini. Partner is granted no title or ownership rights in or to the Software, the API, or to Engini’s Intellectual Property, nor any license thereto except as expressly provided in this Agreement. All rights not expressly granted to Partner in this Agreement are retained by Engini.

Without derogating from the above, Engini reserves all proprietary rights in and to (i) all designs, engineering details and other data pertaining to the Software and API (including, but not limited to, the source code thereof), (ii) all original works, computer programs, discoveries, inventions, patents, know-how, and techniques arising out of, and/or (iii) any and all products or services developed as a result of, the Software and/or API.

10.2.    Partner hereby acknowledges that the Software and the API contain trade secrets of Engini, including, without limitation, the source code version and the specific design of the Software and the API.

10.3.    Partner shall promptly notify Engini in writing of any infringement or other violation of Engini’s Intellectual Property Rights to which Partner becomes aware.

 

10.4.    Partner shall be the sole and exclusive owner of all right, title, and interest in and to Products (to the extent that they do not incorporate the API or any other component received from Engini) and all Intellectual Property related thereto.

11. INDEMNIFICATION

Partner will indemnify and hold harmless Engini, its affiliates, and their respective directors, officers, employees and agents, from and against any loss, damage, cost, expanse (including attorney and legal fees) or liability, resulting from or arising from: (i) Partner’s breach of any of its obligations, undertakings, warranties or representations under this Agreement, Engini’s EULA or any applicable law; (ii) any claim of any third party based upon Partner misrepresenting its authority or upon Partner making any representation or commitment of behalf of Engini not expressly authorized by Engini hereunder in writing prior to making the same; (iii) any claim of any third party with respect to the Products, including its usage, maintenance, malfunction and performance; (iv) any claim that the Products, its usage, sale or distribution infringe or violate any intellectual proprietary rights, or other proprietary rights, of any third party. The above shall not derogate from any other rights and/or remedies afforded to Engini under this Agreement and/or under any applicable law.

12. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL ENGINI BE LIABLE TO PARTNER AND/OR TO ANY THIRD PARTY FOR ANY DAMAGE WHATSOEVER INCURRED IN CONNECTION WITH, AND/OR ARISING OUT OF, THIS AGREEMENT, THE PERFORMANCE OR NON-PERFORMANCE THEREOF, THE PRODUCTS (INCLUDING ITS USAGE, DISTRABRTION, ETC.), ANY USE OF THE SOFTWARE OR API BY PARTNER AND/OR END USERS.  IN ADITION, IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES RESULTING FROM LOSS OF REVENUES OR LOSS OF PROFITS, EVEN IF ENGINISUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

13. CONFIDENTIALITY

13.1.  The Receiving Party agrees to hold in confidence the Confidential Information of the Disclosing Party, and to refrain from copying, distributing, disseminating or otherwise disclosing such Confidential Information to anyone, other than to those of its employees, if and to the extent that such employees have a need to know such Confidential Information for the purpose of Receiving Party’s performance of this Agreement, and provided that such employees are bound by written agreement to abide by all the obligations concerning such Confidential Information contained in this Agreement.

13.2. The Receiving Party undertakes not to use the Confidential Information of the Disclosing Party for any purposes other than for the purposes of performing this Agreement, and not to sell, grant, make available to, or otherwise allow the use of the Disclosing Party’s Confidential Information by any third party, directly or indirectly, except as expressly permitted herein.

13.3. The Receiving Party shall promptly notify the Disclosing Party in writing of any actual or suspected loss or unauthorized use, disclosure, or access of the Disclosing Party’s Confidential Information of which it becomes aware, and take all steps reasonably requested by the Disclosing Party to limit, stop, or otherwise prevent such loss or unauthorized use, disclosure, or access.

13.4.   All Confidential Information shall be and remain the property of the Disclosing Party. Disclosure of the Disclosing Party’s Confidential Information to the Receiving Party shall not be construed as granting the Receiving Party any right, title, or license, whether express or implied, with respect to the Confidential Information or to its related Intellectual Property or products (including, but not limited to, improvements, modifications and/or derivatives related to the Confidential Information), other than the right to use the Confidential Information (and the Intellectual Property associated with it) strictly in accordance with the provisions of this Agreement.

13.5.   Disclosing Party’s Confidential Information is provided on an “as is” basis, with no warranty of whatsoever kind. Without derogating from the above, Disclosing Party makes no warranties, whether express or implied, regarding the accuracy and/or completeness of the Confidential Information disclosed to Receiving Party hereunder.

13.6.   The confidentiality obligations in this Agreement shall not apply to Confidential Information which:

(a) is on the Effective Date, or thereafter becomes part of the public domain in reasonably integrated form without fault on the part of the Receiving Party;

(b) is lawfully obtained from a source other than the Disclosing Party, which source is free of any obligation to keep the same confidential;

(c) is previously known to the Receiving Party without an obligation to be kept confidential, as can be substantiated by written and dated records;

(d) was independently developed by the Receiving Party, without use of the Disclosing Party’s Confidential Information, as can be substantiated by written and dated records; or

(e) is expressly released in writing from such obligations by the Disclosing Party.

13.7.   Notwithstanding anything to the contrary herein express or implied, the Receiving Party may disclose Confidential Information of the Disclosing Party required to be disclosed pursuant to law, regulation, judicial or administrative order, or request by a governmental or other entity authorized by law to make such request; provided, however, that, to the extent possible, the Receiving Party so required to disclose shall first notify the Disclosing Party in writing to enable it to seek relief from such requirement and render reasonable assistance requested by the Disclosing Party (at the Disclosing Party’s expense) in connection therewith, and, provided further, that the disclosure shall be limited to the extent expressly required.

13.8. The Receiving Party shall keep the Disclosing Party’s Confidential Information confidential and secure and shall use at least the same standard of care to protect the Disclosing Party’s Confidential Information as the Receiving Party employs for the protection of its own confidential and proprietary information of a similar nature, but in no event less than a reasonable standard of care. Without limiting the generality of the above, each Party shall ensure that its employees, who shall have access to the Confidential Information of the Disclosing Party, are bound by written agreement to abide by all the obligations concerning such Confidential Information contained in this
Agreement. The provisions of this Section 13 above shall not relieve the Receiving Party from its obligations hereunder, and any breach of this Agreement by Receiving Party’s employees (even if not employed by Receiving Party at the time the breach occurred), shall be deemed as a breach of this Agreement by Receiving Party.

13.9. Each Party acknowledges that its breach of this Section 13 may cause the other Party extensive and irreparable harm and damage, and agrees that the other Party shall be entitled to injunctive relief to prevent use or disclosure of its Confidential Information not authorized by this Agreement, in addition to any other remedy available to the other Party under applicable law.

13.10. All copies of Confidential Information, regardless of form, shall, at the discretion of the Disclosing Party, either be destroyed or returned to the Disclosing Party (except for Confidential Information which the Receiving Party is required to keep, under law), promptly upon the earlier of: (i) Disclosing Party’s written request, or (ii) expiration or termination for any reason of this Agreement, and in any of such events shall not thereafter be retained in any form by the Receiving Party. The Receiving Party shall confirm such destruction or return in writing to the Disclosing Party.

 

13.11. Except as specified under Section 4.6 above, Neither Party shall disclose, advertise, or publish the terms and conditions of this Agreement (or any summary of any of the forgoing) to any third Party without the prior written consent of the otherParty, unless and to the extent required to do so by law or in order to establish or enforce such Party’s rights hereunder. Any press release, publication, advertisement or public disclosure regarding this Agreement is subject to both the prior review and the written approval of both Parties.

14. TERM AND TERMINATION

14.1.    Term. This Agreement will be effective as of the Effective Date, and, unless earlier terminated in accordance with the provisions of this Agreement, in accordance with section 1.3 (the “Term“). The Parties may mutually agree to extend this Agreement at the end of the Term.

14.2. Termination for Cause. Either Party may terminate this Agreement in the event the other Party materially breaches this Agreement by sending the other Party written notice of the alleged material breach and intention to terminate if the breach is not cured. If the breaching Party fails to cure such breach within fourteen (14) days of receipt of such notice, the other Party may, by written notice, terminate this Agreement.

Notwithstanding the provisions of the previous paragraph, in the event that Partner infringes, disputes, contests or otherwise challenges or attacks Engini’s rights in or to Engini’s Intellectual Property, the validity, enforceability or title of Engini’s Intellectual Property, a Trademark or of this Agreement, then such breach shall be deemed as a material breach of this Agreement, and, notwithstanding anything to the contrary contained in this Section 14.3, Engini may terminate this Agreement immediately – by sending Partner a written termination notice with immediate effect.

14.3. Termination in the Event of Bankruptcy. This Agreement may be terminated by either Party on written notice if the other Party shall become insolvent, cease doing business as a going concern, make an assignment, composition or arrangement for the benefit of its creditors, or admits in writing its inability to pay debts, or if proceedings are instituted by or against it in bankruptcy, under applicable insolvency laws, or for receivership, administration, winding-up or dissolution (otherwise than in the course of a solvent reorganization or restructuring approved by the other Party to this Agreement), provided such proceedings are not dismissed within sixty (60) days.

14.4.   Effect of Termination. Upon expiration or termination for any reason of this Agreement, the following will apply:

(a) Partner shall immediately –

(i) cease to sell or distribute in any way the Products;

(ii) cease to sell or distribute in any way the API, the API Key or any other components received from Engini;

(iii) cease to make use of Engini’s Intellectual Property, including, but not limited to, the Trademarks, and shall immediately sign all the necessary documents for cancellation and de-registration of the Trademark license as recorded in the Territory (if so recorded);

(iv) cease to use the Software and any API; and

(v) return to Engini any of its Confidential Information disclosed thereto in writing or in any other tangible form and any copies thereof

(b) Engini shall not be obligated to compensate Partner for the expiration or termination of this Agreement, including but not limited to, any costs, fees and expenses which Partner has incurred in connection with this Agreement and/or the conducting business pursuant thereto, and Partner hereby waives any and all rights to damages or any other remedies that it might otherwise have upon any expiration or termination of this Agreement; and

(c) Expiration or termination for any reason of this Agreement shall not derogate from rights and obligations accrued prior to the effective date of expiration or termination. For avoidance of doubt, termination or expiration of this Agreement for any reason, shall not affect Partner’s liability to make payments, to which Engini was entitled prior to such termination or expiration.

 

14.5.  Survival. The provisions of Sections 1, 3, 4, 8.3-8.5, 9, 10, 11-13, 14.6 and 15 through and including 17 hereto, shall survive the expiration or termination of this Agreement for any reason, together with such other provisions necessary to give effect to such provisions.

15. GOVERNING LAW AND JURISDICTION

15.1.    The validity, performance, construction and effect of this Agreement shall be governed by the laws of the State of Israel, without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.

 

15.2.    Any dispute arising out or relating to this Agreement (including, but not limited to, the validity, enforceability, interpretation, performance, breach or termination thereof), shall be referred to the competent courts in Tel Aviv, Israel, which shall have exclusive jurisdiction with respect to any such disputes. Both Parties hereby submit to the exclusive jurisdiction of the aforementioned courts.

16. NOTICES / LANGUAGE

16.1.    All notices required or permitted under this Agreement, shall be in writing, will reference this Agreement and will be deemed delivered upon actual delivery by a courier service to the other Party, with written verification of receipt. All communications will be sent to the Parties’ respective addresses set forth in the heading of this Agreement. Such notice or other communications shall be deemed to have been given on the date confirmed as the actual date of delivery by the courier service if sent by such service.

 

16.2.    All correspondence, notices and technical documentation exchanged between the Parties under and/or in accordance with this Agreement, and any software, shall be provided in the English language only, unless otherwise agreed by the Parties in writing.

17. MISCELLANEOUS

17.1.    Headings. The headings of the Sections in this Agreement are for reference only and shall not be considered in the interpretation hereof. All references in this Agreement to Sections and Exhibits shall, unless otherwise provided, refer to Sections and Exhibits attached hereto.

17.2.    Entire Agreement. This Agreement, together with all Exhibits (as defined below), contains the complete agreement between the Parties and supersedes any prior understandings, agreements or representations by or among the Parties, which relate to the subject matter of this Agreement.

The exhibits, annexes, appendices and schedules attached to this Agreement (collectively, the “Exhibits“), form an integral part hereof and are expressly incorporated herein by this reference.

In the event of any inconsistency or contradiction between the provisions of this Agreement and the provisions of an Exhibit, the provisions of this Agreement will prevail with respect to the subject matter of such inconsistency or discrepancy.

17.3.    Amendment. This agreement shall not be amended without the express prior written consent of both Parties hereto. Any amendment affected in accordance with this Section shall be binding upon all Parties hereto.

17.4.    Severability. In the event that any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, that provision shall be construed, limited, modified or deleted, to the extent necessary to eliminate any invalidity or unenforceability, and the remaining provisions of this Agreement remain in full force and effect.

17.5.    Waiver. No waiver of any right under this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party to be bound. No waiver of any past or present right arising from any breach or failure to perform shall be deemed to be a waiver of any future right arising under this Agreement.

17.6.    No Partnership. Nothing contained in this Agreement shall be construed as creating a partnership, joint venture, agency or other similar relationship between the Parties hereto, nor as granting either Party the right, power, or authority (express or implied) to bind or otherwise create any duty or obligation for the other. There shall be no employer-employee relationship between the Parties’ employees.

17.7.    Assignment. Partner shall not assign, subcontract or otherwise transfer any of its rights and/or obligations under this Agreement to any third party without the prior written consent of Engini, and any purported assignment or transfer without the other Party’s prior written consent shall be null and void.

Engini may assign, subcontract or otherwise transfer any of its rights and/or obligations under this Agreement to any third party at its own discretion and without the consent of Partner.

Subject to the above, this Agreement shall be binding upon, and shall inure to the benefit of, the Parties hereto and their respective successors and permitted assigns.

17.8.  Force Majeure. A Party hereto shall not be liable for any delay, loss and/or damage resulting from causes beyond the control thereof, including, but not limited to, acts of God, acts of a public enemy, acts of any governmental or quasi-governmental agency or any of their political subdivisions, fire, flood, epidemics, explosion, power or telecommunications irregularities, quarantine restrictions; strikes or other labor unrest, earthquakes, civil commotion or revolutions, war, terrorist attack, freight embargoes, or unusually severe weather conditions.

17.9.  Remedies. All remedies, either under this Agreement or by law otherwise affording to any Party, shall be cumulative and not alternative.

17.10. No Third-Party Beneficiaries. This Agreement does not create any obligation of a Party to any third parties, nor shall it be deemed to create any rights or causes of action on behalf of any third parties.

17.11.  Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all Parties had signed the same document.