Terms of Service
THESE TERMS & CONDITIONS, INCLUDING THE EXHIBITS REFERENCED HEREIN (COLLECTIVELY THE “AGREEMENT”), CONSTITUTE THE BINDING AGREEMENT BY AND BETWEEN REDEFINE SOFTWARE LTD. AND ITS AFFILIATES AND SUBSIDIARIES (“REDEFINE”) AND THE ENTITY EXECUTING THE CORRESPONDING PURCHASE ORDER (“CUSTOMER”) (EACH, A “PARTY” AND COLLECTIVELY, THE “PARTIES”). BY CLICKING “I ACCEPT”, SIGNING THE APPLICABLE PURCHASE ORDER FORM OR OTHERWISE USING THE SOLUTION, CUSTOMER ACKNOWLEDGES AND AGREES TO THE TERMS OF THIS AGREEMENT, WHICH ACCEPTANCE DATE SHALL BE DEEMED THE EFFECTIVE DATE OF THIS AGREEMENT.
1.1 Services. Subject to the terms and conditions of this Agreement (including without limitation compliance with any payment obligations) and during the subscription term set forth in the applicable Purchase Order, Redefine shall grant Customer a limited, revocable, non-exclusive, non-assignable, non-transferable, right to access and use the Solution for Customer's own internal purposes only. Further to the right of access granted under this Section 2.1 above, Redefine shall provide Customer with the application required in order to access and use the Solution. Customer is solely responsible for all actions performed under Customer's credentials and Customer shall be responsible to keep its credentials safe. If Customer has any reasons to suspect that Customer's credentials were discovered by any third party or that there was an unauthorized access to Customer's account, Customer will immediately notify Redefine.
1.2. Maintenance and Support. Maintenance and support shall be provided in accordance with the Redefine’s standard maintenance and support policy as published on its website or provided to Customer, and amended from time to time (“Support Services”). Order of Support Services may be done in a separate Purchase Order and subject to the agreed fees for such services set forth therein.
2. Use Restrictions. The Solution shall be accessed and used in accordance with its intended purpose. Except as expressly and unambiguously permitted by this Agreement, without Redefine's prior written consent, the Customer may not, nor permit anyone else to, directly or indirectly: (i) grant access under its credentials or transfer Customer's rights under this Agreement to a third party, (ii) copy, reproduce, create a derivative work or modify any part of the Solution, including by means of incorporating them into or with any other product or program, (iii) disclose, publish or otherwise make publicly available the results of any benchmarking of the Solution, or use such results for competing software development activities; (iv) use or permit the Solution to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, (v) attempt to decipher, decompile, disassemble, reverse engineer or reverse compile all or any portion of the Solution (vi) use or launch any automated system (including without limitation, “robots”, “scrapers” and “spiders”) to access the Solution, including without limitation in order to extract for re-utilization of any parts of the Solution, or perform any act that destabilizes, interrupts or encumbers the Solution or its servers or use automatic means that enable sending more request messages to the servers of the Solution, in a given period of time, than is reasonable in that time period, (vii) use or encourage, promote, facilitate or instruct others to use the Solution for any unlawful, harmful, irresponsible, prohibited by this Agreement, or inappropriate purpose; and/or (viii) sell, license (or sub-license), lease, assign, transfer, pledge, or share Customer’s credentials with or to any third party. Any right not explicitly granted to Customer under this Agreement is reserved to Redefine or its licensors. The Customer agrees to access the Solution in a manner that complies with all applicable laws in the jurisdiction in which Customer accesses the Solution, including, but not limited to, applicable restrictions concerning copyright and other Intellectual Property Rights and with Redefine’s license metrics and work environment conditions. Redefine does not provide back-up, archive or recovery services. Customer is solely responsible for maintaining adequate backups, recovery and archive in respect of any data in connection with Customer’s use of the Solution.
3. Third Party Components. The Solution may include third party components that are subject to open source and/or pass-through commercial licenses and/or notices (such third party programs, “Third Party Components” and “Third Party Terms and Notices”, respectively). Some of the Third Party Terms and Notices may be made available to Customer in the Solution, its Documentation or via a supplementary list provided by Redefine. Any covenants, representations, warranties, indemnities and other commitments with respect to the Solution in this Agreement are made by Redefine and not by any authors, licensors, or suppliers of, or contributors to, such Third Party Components. Any use of Third Party Components is subject solely to the rights and obligations under the applicable Third Party Terms and Notices. Notwithstanding anything in this Agreement to the contrary, Redefine does not make any representation, warranty, guarantee, or condition, and does not undertake any liability or obligation, with respect to any Third Party Components.
4. Consideration and Fees
4.1. Service Fees. In consideration for the Services, Customer will pay the fees stated in the applicable Purchase Order according to the payment terms stated therein (“Fees”). Notwithstanding the foregoing, Company shall be entitled to use internal tools to track Customer’s consumption rates exceeding those minimum consumption metrics (the “Base Subscription”) set forth under the Purchase Order, and charge Customer additional fees to account for any access of instances from its Base Subscription as shall be calculated on pro-rated basis and applied on the subsequent invoice.
Unless otherwise specified in the Purchase Order, all payments are due thirty (30) days from receipt of each invoice and are non-refundable and non-cancellable (NC/NR). Any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of: (a) the rate of one and a half percent (1.5%) per month; and (b) the highest amount permitted by applicable law.
4.2. Taxes. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, and other taxes, duties or governmental charges, except for taxes based upon Redefine's net income. In the event that Customer is required by applicable law to withhold or deduct taxes imposed upon Customer for any payment under this Agreement, then the amounts due to Redefine will be increased by the amount necessary so that Redefine receives and retains, free from liability for any deduction or withholding, an amount equal to the sum it would have received had Customer not made any such withholding or deduction.
- Confidentiality. Customer may have access to certain non-public or proprietary information or materials of Redefine whether in tangible or intangible form (“Confidential Information”). Without derogating from the foregoing, the Solution and terms of the Purchase Order shall be deemed as Confidential Information. Customer shall use the Confidential Information solely for the purpose of performing its obligations and/or exercising its rights under this Agreement and Customer shall not disclose or make available the Confidential Information to any third party, except to its employees that have a need to know such information and that are bound by obligations at least as protective as provided herein. Customer shall take measures at a level at least as protective as those taken to protect its own confidential information of like nature (but in no event less than a reasonable level) to protect the Confidential Information. Customer will promptly notify Redefine in writing in the event of any actual or suspected unauthorized use or disclosure of any Confidential Information.
- Ownership. Redefine is, and shall remain, the sole and exclusive owner of all Intellectual Property Rights in and to the Solution and all its copies (as well as any modifications, improvements or derivatives thereto), the Support Services provided as per Section 2.2 above, and any other products or services provided by Redefine (hereinafter, “Redefine IPR”). Redefine reserves all rights not expressly granted herein and except for the limited rights granted pursuant to this Agreement, Customer is granted no other right or license in or to any Redefine IPR. Customer undertakes not to contest Redefine’s ownership in the Redefine IPR.
- Disclaimer. THE SOLUTION AND ANY SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR QUALITY OF SERVICE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE) ARE HEREBY DISCLAIMED. REDEFINE DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, COMPLETENESS, OR QUALITY OF THE SOLUTION, OR THAT USE OF THE SOLUTION WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE OR THAT ERRORS/BUGS ARE REPRODUCIBLE OR THAT ERRORS/BUGS ARE REPAIRABLE.
- LIMITATION OF LIABILITY
IN NO EVENT WILL REDEFINE, ANY OF ITS AFFILIATES, PARTNERS, DISTRIBUTORS OR ANY OF THEIR LICENSORS AND SUPPLIERS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, THE SOLUTION OR OTHERWISE WHETHER UNDER CONTRACT, TORT OR OTHERWISE, TO YOU OR ANY THIRD PARTY FOR: (A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES; (B) ANY LOSS OF PROFITS, BUSINESS, ANTICIPATED SAVINGS, OR DATA AND/OR DAMAGE TO OR LOSS OF DATA, SECURITY BREACH OR REPUTATION DAMAGE OR HARM TO GOODWILL; AND/OR (C) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
THE COMBINED CUMULATIVE LIABILITY OF REDEFINE AND ITS AFFILIATES, PARTNERS AND ANY OF THEIR LICENSORS AND SUPPLIERS UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, THE SOLUTION OR OTHERWISE, WILL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO REDEFINE UNDER THE APPLICABLE PURCHASE ORDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. REDEFINE’S SOLE AND EXCLUSIVE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN RESPECT OF ANY MAINTENANCE OR SUPPORT ISSUE SHALL BE LIMITED TO RE-PERFORMANCE AND PROVISION OF SUPPORT SERVICES.
THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND: (A) EVEN IF A PARTY OR AN AFFILIATE, DISTRIBITOR OR SUPPLIER OF REDEFINE HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (B) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (C) REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY).
9.1. Indemnification Obligation. Redefine will defend, indemnify and hold harmless Customer against any third party demand, claim, suit, or action alleging that Customer's use of the Solution in accordance with this Agreement infringes such third party’s Intellectual Property Rights (an “Infringement Claim”), and Redefine will pay any amounts finally awarded by a competent court against Customer (or otherwise agreed in settlement) under such Infringement Claim. Redefine will have no obligation or liability under this Section 10.1 to the extent that the Infringement Claim is based upon or results from: (a) the combination or use of the Solution with any third party products or services if the claim would not have occurred if not for such combination or use; (b) any modification to the Solution not made by Redefine; (c) Customer’s failure to comply with the written instructions of Redefine and/or with the terms of this Agreement or the Documentation; (d) where Customer continues the alleged infringing activity after being notified thereof; (e) use or retention of a copy of the Solution not in its most current version provided by Redefine; and/or (f) Redefine’s compliance with any Customer instructions or requirements.
9.2. Remediation. Should the Solution (in whole or in part) become, or in Redefine’s opinion be likely to become, the subject of any Infringement Claim, then Customer permits Redefine, at Redefine’s option, either to: (a) obtain for Customer the right to continue using the Solution (or part thereof); or (b) replace or modify the Solution (or part thereof) so that it becomes non-infringing; provided, however, that if, in Redefine’s opinion, the remedies in clauses (a) and (b) above are not commercially feasible, Redefine may terminate this Agreement immediately upon written notice to Customer and provide Customer with a pro-rata refund of any prepaid (but unutilized) Fees based on the remaining subscription term.
9.3. Procedure. Customer’s obligation and liability under this Section 10 is subject to the conditions that: (a) Customer has promptly notified Redefine in writing of the Infringement Claim (as used in this subsection, “Claim”), provided that a delay or failure to provide such notice will not relieve the Redefine of its obligation or liability under this Section 10, except to the extent that such delay or failure materially prejudices its ability to defend the claim; (b) Customer shall reasonably cooperates with the Redefine and permits the Redefine to assume sole control of the defense of the Claim and all negotiations for any settlement thereof, provided that Redefine will not be required to cede control of any claim it may have to the extent that it impacts any Redefine Intellectual Property Right or goodwill, and the Customer will not enter into any settlement of a Claim without the Redefine’s prior express written consent, not to be unreasonably withheld, conditioned or delayed; and (c) the Customer refrains from admitting any liability or otherwise compromising the defense of the Claim (in whole or in part), without the prior express written consent of the Redefine.
9.4. Entire Liability. This Section 10 states Redefine’s sole and exclusive obligation and liability, and Customer’s sole remedy, with respect to any Infringement Claim.
10. Term and Termination
10.1. Term. This Agreement commences as of the Effective Date and will continue in full force and effect for the subscription term provided in the Purchase Order (the “Initial Term”) and shall automatically renew for additional successive one (1) year periods (each, a “Renewal Term” and collectively with the Initial Term, the “Term”), unless either party provides a notice of non-renewal no less than thirty (30) days prior to the consummation of the Initial Term or Renewal term, as applicable, or as otherwise earlier terminated in accordance with this Section 11.2 of this Agreement. Redefine reserves the right to update its pricing from time to time, provided however that price updates shall apply with respect to the next Renewal Term and shall not affect the then-in effect subscription term.
10.2. Termination. Each party may terminate this Agreement immediately upon written notice to the other party: (a) if the other party commits a material breach under this Agreement and, if curable, fails to cure that breach within thirty (30) days after receipt of written notice specifying the material breach (except that for payment defaults, such cure period will be seven days); and/or (b) if the other party is declared bankrupt by a judicial decision, or, in the event an involuntary bankruptcy action is filed against such other party, it has not taken, within sixty (60) days from service of such action to such party, any possible action under applicable law for such filed action to be dismissed.
10.3. Effect of Termination; Survival. Upon expiration or termination of this Agreement: (a) the Customer’s right to access the Solution will automatically terminate and Customer shall cease using or otherwise accessing the Solution, disconnect any access of the API to the Service, and uninstall and permanently erase (or, if requested by Redefine, permit Redefine to uninstall and permanently erase) all copies of the Solution from the Customer's systems (if any); (b) Customer will pay all outstanding Fees; and (c) Customer shall, at Redefine’s election, erase or return to Redefine all Redefine Confidential Information in its possession or under its control. Sections 1, 5.2, 6-10, 11.3 and 12 will survive the expiration or termination of this Agreement.
11.1. Modifications. Redefine reserves the right, at its discretion, to change this Agreement at any time. Such change will be effective ten (10) days following sending a notice thereof to Customer or posting the revised Agreement on the Redefine website, and Customer’s continued use of the Solution thereafter means that Customer accept those changes.
11.2. Entire Agreement. This Agreement, all Purchase Orders and any exhibits attached thereto represent the entire agreement of the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the parties with respect to such subject matter. Any terms and conditions printed, or linked to, within the Purchase Order, which are in addition to or otherwise inconsistent with the terms and conditions of this Agreement, shall be of no effect, unless explicitly stated otherwise with reference to this Agreement.
11.3. Name and Logo. Redefine may use Customer’s name and logo on its website and in its promotional materials to state that Customer is a customer of Redefine and a Solution user.
11.4. Assignment. Customer may not assign its rights or obligations under this Agreement without the prior written consent of Redefine. Redefine may assign or transfer its rights and/or obligations under this Agreement without restriction or notification.
11.5. Governing Law; Jurisdiction. This Agreement shall be construed and governed in accordance with the laws of the State of Israel and the competent courts of Tel Aviv-Jaffa, Israel shall have the exclusive jurisdiction on all matters arising under this Agreement. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
11.6. Aggregate Data. Notwithstanding anything to the contrary, Redefine may use, retain, exploit and transfer to third parties aggregate usage, threat or vulnerability identification and analytics data for any purpose and without any restrictions or payment obligations, provided that such information cannot be traced-back to Customer by the transferee.
11.7. Relationship. The parties are solely independent contractors. Nothing in this Agreement shall create a partnership, joint venture, agency, or employment relationship between the parties. Neither party may make, or undertake, any commitments or obligations on behalf of the other.
11.8. Severability. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
11.9. Notices. Any notice hereunder will be in writing to the notice address set forth in the Purchase Order and will be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered mail (return receipt requested); (iii) upon written approval of receipt by the receiving party if sent by email. Either party may, by like notice, specify or change an address to which notices and communications shall thereafter be sent.
11.10. Force Majeure. Except for payment obligations, neither party will be liable for failure or delay in performance of any of its obligations under or in connection with this Agreement arising out of any event or circumstance beyond that party’s reasonable control, including without limitation an Act of God, fire, flood, lightning, war, revolution, act of terrorism, riot, civil commotion, adverse weather condition, adverse traffic condition, strike, lock-out, pandemic or other industrial action, and failure of supply of power, fuel, transport, equipment, raw materials, or other goods or services.
11.11. Waiver. Any waiver granted hereunder must be in writing, duly signed by the waiving Party, and will be valid only in the specific instance in which given.
12. Definitions. All capitalized terms used herein shall have the meanings set forth below:
12.1. “Intellectual Property Rights” shall mean any (i) patents and patent applications throughout the world, including all reissues, divisions, continuations, continuations-in-part, extensions, renewals, and re-examinations of any of the foregoing, all whether or not registered or capable of being registered; (ii) common law and statutory trade secrets and all other confidential or proprietary or useful information that has independent value, and all know-how, in each case whether or not reduced to a writing or other tangible form; (iii) all copyrights, whether arising under statutory or common law, whether registered or not; (iv) all trademarks, trade names, corporate names, company names, trade styles, service marks, certification marks, collective marks, logos, and other source of business identifiers, whether registered or not; (v) moral rights in those jurisdictions where such rights are recognized; (vi) any rights in source code, object code, mask works, databases, algorithms, formulae and processes; and/or (vii) all other intellectual property and proprietary rights, and all rights corresponding to the foregoing throughout the world.
12.2. “Purchase Order” means any written or electronic purchase order executed between the parties, identifying the subscription term, fees, payment terms, and any additional terms and conditions described therein.
12.3. “Services” shall mean the grant of right to access the Solution pursuant to Section 2.1 and the provision of Support Services.
12.4. “Solution” means Redefine’s proprietary software solution known as “Test Optimization Platform” that provides insights with respect to the selection and application of automated testing methods for software products.