This service agreement (the "Agreement") is made and entered into as of date indicated in the attached order form (the "Effective Date" and "Order Form" respectively), by and between Unicko, the owner of the Service, as further described below ("Provider"), and the entity or individual whose details are indicted in the Order Form ("Customer"). The Provider and Customer each will be referred as the "Party" and collectively the "Parties".
- Provider has developed online tools for virtualizing teaching and other education related activities, including online group and personal classes, one-on-one meetings, work group studying, webinar presentations and demonstrations (The "Service").
- Agreement Term. Unless this Agreement is terminated earlier in accordance with the terms set forth on Section 11, the term of this agreement ("Term") will be as stated in the Order Form. The agreement will be renewed automatically for an additional term of a renewal term ("Renewal Term") each time.
- Service Hosting. The Service is installed and maintained on computer cloud services ("Hosting Service Provider"). Provider may replace the Hosting Service Provider, in whole or in part, with the services of another Hosting Service Provider, any time, and at Provider's sole discretion.
- Email Service Provider. Provider is using Email Service Provider, to enable Customer to send emails by using the Service ("Email Service Provider"). Provider may replace the Email Service Provider, with the services of another Email Service Provider, any time, and at Provider's sole discretion.
Maintenance and Availability. Provider will use commercially reasonable efforts to make the Service available 24 hours a day, seven days a week, except for -
- System downtime for planned maintenance to the Service. Provider will make efforts to schedule the maintenance work outside of working hours.
- Unscheduled maintenance performed as required. If the maintenance is likely to cause disruptions to the functionality of the Service or to Customer's ability to access and use the Service, then Provider will notify Customer of such maintenance, within a reasonable time before it takes place.
- Planned and unscheduled maintenance to the service hosting by the Hosting Service Provider, to the e-mail services by the Email Service Provider and to the text messages service by Text Messaging Service Provider.
- Customer Service. Provider will provide a support representative that will be available by email or phone or online chat to Customer's system administrator, on Sunday through Thursday at 9AM until 6PM (UTC/GMT + 2 hours). Customer may receive after hours support until midnight, if there is a critical error that prevents access to the system ('system down').
- Information Security. Provider and Provider's hosting services implement information security systems, applications and procedures to secure data on Provider's system, to minimize the risks of theft, damage, loss of information, or unauthorized access or use of information. These measures provide sound industry standard security. However, Provider cannot guarantee that the Service will be immune from any wrongdoings, malfunctions, unlawful interceptions or access, or other kinds of abuse and misuse.
- Service Upgrades and Modifications. From time to time, Provider may upgrade and perform additional modifications to the Service, provided that such upgrades and modifications will not materially affect the functionality of the Service. Upgrades that will include additional tools or features may be subject to additional payment.
- Service Requirements. Service usage and system requirements are as displayed in Provider's website and amended from time to time.
- Users Access Management. Provider will provide Customer a management interface. Customer will have full discretion to create, edit and delete Service users (Authorized Users), grant user permissions to each user, manage the log-in passwords, including frequency of password change, and more.
Rules of Conduct when Using the Service
- Customer may not use or have others use the Service, to provide the Service to third parties.
- When using the Service, Customer agrees to: (i) abide by all applicable local and international laws, regulations and rules; (ii) take full account for all acts or omissions associated with Authorized Users' access and use of the Service; (iii) comply with any instructions and technical specifications provided by Provider; (iv) avoid any alteration of modification of any Software computer code; (v) refrain from interfering with, circumventing, manipulating, or disrupting the operation, or the functionality of the Service.
- Customer may not use the e-mail services that Provider provides to send Software viruses, Trojan Horses, Worms, Vandals, Spyware and any other Malicious Applications, Unsolicited commercial communications, unless permitted under the applicable laws, chain letters, or pyramid schemes.
- In consideration for the right to use the Service, Customer will pay a non-refundable fee in the amount and payment terms stated in the Order Form.
- A delay in Customer's timely payment of any and all fees will constitute a material breach of the Agreement and will bear both full linkage differentials according to the rate of the increase in the Israel Consumer Price Index and interest at a monthly rate of one percent (1%), cumulative month on the linked capital – all, without derogating from any other rights and remedies available to Provider under the applicable law.
- Provider represents and warrants that it is an independent contractor and that Customer is not responsible to collect or withhold any taxes, including income tax withholding and social security contributions, for Provider.
Representations and Warranties
Mutual Representations and Warranties. Each Party represent and warrant that:
- It is a duly incorporated corporation, validly existing, and in good standing under the laws of its state of incorporation. This representation applies to Customers that are incorporated entities;
- It has all requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement; This representation applies to Customers that are incorporated entities;
- This Agreement, when executed and delivered, will be a valid, binding and enforceable obligation in accordance with its terms;
- The execution, delivery, and performance of this Agreement has been duly authorized and this Agreement constitutes the legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganizations, moratoriums, and similar laws affecting creditors' rights generally and by general equitable principles;
- It will comply with all laws and regulations applicable to the performance of its obligations under this Agreement and will obtain all applicable permits and licenses required in connection with its obligations under this Agreement;
- Representations and Warranties by Provider. Provider represents and warrants that: (i) Provider has the experience and is capable of efficiently providing the Service; (ii) Provider will perform its duties under this agreement in a competent and professional manner; (iii) Provider will make its best efforts to provide the Service in a timely manner and uninterrupted. However, the availability and functionality of the Service depend on various factors and elements, including software, hardware and communication networks, partially provided by third parties. These factors are not fault free. Provider does not warrant or guarantee that the Service or any other Services will operate without disruption, errors or interruptions, or that it will be accessible, or available at all times, or immune from unauthorized access or error free; (iv) the Service will conform to its specifications, provided that Customer uses the Service under the Customer Service Requirements indicated in Provider's website and with Provider's instructions. In the event that Service does not perform in accordance with such specifications Provider will, at its expense make necessary bug-fixing and modifications to correct such performance failure.
- Except for the warranties explicitly granted in this agreement the Service is provided "As Is" and "As Available".
- Limitation of Liability. In no event, except for willful misconduct, will Provider be liable to Customer, and any other person on its behalf, or to any third party for any damages whatsoever or other financial liability (including without limitation, consequential, incidental, indirect, punitive, loss of business profits, business interruption, loss of data or other business information, or other pecuniary loss) arising out of the use of or inability to use the Service, even if Provider has been advised of the possibility of such damages.
- Mutual Representations and Warranties. Each Party represent and warrant that:
- The Service. All rights, title and interest, including copyrights, trademarks, trade names, service marks, trade secrets and other intellectual property rights, and any goodwill associated therewith, in and to the Service, including computer code, graphic design, lay-out and the user interfaces of the Service, and including any changes, additions or modifications made by Provider pursuant to comments or requests by Customer, are owned by, or licensed to Provider.
- Customer Data. Customer’s Data will be and remain the sole and exclusive property of Customer. Customer provides Provider a right to collect information about Customer's Service activity, (such as log-ins and log-outs, the duration of Service sessions, viewed web-pages, or specific content on web-pages), activity measures (such as the extent of the microphone use and the scope of sent chat messages and uploaded content), to study and analyze the functionality of the Service and Customer's activities, to provide support, to measure Service activity for pricing purposes, to conduct surveys and send questionnaires, to maintain the Service, to enhance the Service and provide additional tools, features and services, and to continue developing the Service.
- No Other Rights. Except as expressly set forth herein, no other permission is granted by either Party to the other with respect to Confidential Information, the Service, or Customer Data. Nothing in this Agreement will be construed to grant to either Party any ownership or other interest, in the Confidential Information, Services, or Customer Data, except as explicitly provided in this Agreement.
- The provisions of this Section will survive the termination of this Agreement.
- Customer may not reproduce, or have reproduced, the Service, in whole or in part, or the Service's functionality, capabilities, structure or design, or any information related to the Service, directly or indirectly without a prior explicit written permission of Provider.
- Customer will not access or use the Service to develop or have developed any product, software or service that competes or may compete, in whole or in part, directly or indirectly, with the Service during the Term and two years (24 months) thereafter.
- A breach of this clause will constitute a material breach of the Agreement.
Non-Disclosure of Confidential Information
- Customer will maintain strict confidentiality of the payment details, any information regarding the Service functionality, capabilities, structure and design, and any business practices of Provider, and will not disclose them, or have them disclosed, directly or indirectly to any third party without a prior written permission of Provider.
- Provider will maintain strict confidentiality of Customer Data that is not publicly available and any business practices of Customer, and will not disclose them, or have them disclosed, directly or indirectly to any third party without a prior written permission of Customer.
- This clause will survive the termination of the Agreement.
- Termination for Convenience. At any time during the Renewal Term, each Party may terminate the Agreement by sending the other Party a termination notice, at least 30 days prior to the end of the Renewal Term. In such case, the Agreement will be terminated at the end of the Renewal Term.
- Termination for Cause. If either Party materially breaches any of its duties or obligations hereunder, and such breach is not cured, or the breaching Party is not diligently pursuing a cure to the non breaching Party’s sole satisfaction, within thirty (30) calendar days after written notice of the breach, then the non breaching Party may terminate this Agreement.
- Payments Upon Termination. Upon the expiration or termination of this Agreement for any reason, Customer will pay Provider all outstanding amounts payable hereunder.
- Return or Destruction of Customer Data. Upon expiration or earlier termination of this Agreement Provider may, at its discretion delete or otherwise destroy Customer Data in the possession of Provider or provide Customer reasonable support, at Customer's expense to migrate Customer Data to a third party system. Notwithstanding, Provider may document and archive copies of Customer Data for archival and other legitimate purposes, under the applicable law. This Section will survive the termination of this Agreement.
- Non-exclusivity. Nothing herein will be deemed to preclude Provider from providing the Service to any other person.
- Subcontractors. Provider may use subcontractors to perform Provider's duties, or any part thereof under this Agreement. However, Provider’s right to subcontract the Service does not relieve Provider from any of its duties or obligations toward Customer under this Agreement. Subcontractors are listed on the list available at www.unicko.com/subcontractors (which may be updated by Provider from time to time).
- Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Israel, without giving effect to any choice of law or conflict of law rules or provisions, of the State of Israel or of any other jurisdiction, which would result in the application of the laws of a jurisdiction other than the State of Israel. Customer hereby consents and submits to the sole and exclusive jurisdiction and forum of the courts in Tel-Aviv and Central districts of Israel.
- Dispute Resolution. In any dispute or disagreement between the Parties about any provision of this Agreement, or the performance of either Party hereunder, Customer and Provider Managers will meet, either physically, or online, and make good-faith effort to resolve the dispute amicably. In the course of these non-judicial dispute resolution procedures, documents used to resolve the dispute will be limited to essential, non-privileged information. All requests will be made in good faith and be reasonable in light of the economics and time efficiencies intended by the dispute resolution procedures. The Representatives may mutually agree to appoint a neutral advisor to facilitate negotiations and, if requested by both Parties, to render non-binding opinions. No formal proceedings for the judicial resolution of any dispute may be commenced until sixty (60) calendar days following initiation of negotiations under this Section or for such shorter period as the Parties may mutually agree to in writing. Either Party may then seek whatever remedy is available in law or in equity. The provisions of this Section will not apply to any dispute relating to the Parties’ obligations of non-disclosure and confidentiality as further described herein.
- Force Majeure. Neither Party will be liable for delays or any failure to perform the Service or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed Party.
- Advertising and Publicity. Provider may refer to Customer, including by using Customer's name, marks, brands and logos in its website, in news releases and in other publications.
- Relationship Between the Parties. The Agreement does not create in any way a partnership, joint venture, employment relationship, franchise, agency or any other similar relationship between the Parties. Nothing in the Agreement shall be interpreted or construed as creating or establishing any such relationship.
- The Agreement Takes Precedence. The Agreement takes precedence over all documents, forms and policies incorporated thereto, unless specifically indicated in such documents that a certain provision is determined notwithstanding any of the provisions of the Agreement.
- No Waiver. Failure of a Party to demand performance of any provision of the Agreement will not constitute a waiver of any right under the Agreement.
- Interpretation. The Section headings are included for convenience only and take no part in the interpretation, or construing of the Agreement.
- Severability. If any provision of the Agreement is held to be illegal, invalid, or unenforceable by a competent court, then the provision shall be performed and enforced to the maximum extent permitted by law, and the remaining provisions of the Agreement will continue to remain in full force and effect.
- Notices. All notices or other communications that are given pursuant to this Agreement, must be in writing, must be sent by certified or registered mail with postage prepaid, return receipt requested, by facsimile, or by hand delivery. Such communications will be deemed given and received upon dispatch, if sent by facsimile, or upon delivery if hand delivered; or within five (5) days of mailing, if sent by certified or registered mail, and must be addressed to the Parties as stated in the Order Form, or to such other addresses as the Parties may designate.
- Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same Agreement. The Parties agree that a facsimile or digital signature may substitute for and have the same legal effect as the original signature.