|“The Agreement” or “Agreement”||The Order Form, together with these Terms and Condition, the AUP, the SLA (in case SLA was signed as part of the Order Form) and any other document that was specifically declared as part of the Agreement|
|“AUP”||The “Acceptable User Policy” document according to Purepeak’s website: www.purepeak.com, including any amendment to the AUP from time to time|
|“Customer”||Any person or entity that receives any Service from PurePeak, or signed an Order Form|
|“Order Form”||The order form signed between PurePeak and the Customer|
|“SLA”||Service level agreement, if such an agreement was signed as part of the Order Form|
|“Terms and Conditions”||This “Terms and Conditions” document, including any amendment to the “Terms and Conditions” from time to time|
|“The Services”||Any service provided to the Customer by PurePeak (directly or indirectly), including PurePeak’s networks, systems, web sites, software and any other products or services|
|“Users”||Customer, Customer’s affiliates, users or any other party that access PurePeak’s services through or in connection with the Customer or its services (directly or indirectly)|
2. General Terms
2.1. The following terms and conditions shall apply to any Service provided by PurePeak to the Customer.
2.2. In any case of contradiction between the Terms and Conditions and the Order Form, the Order Form shall prevail.
2.3. The Terms and Conditions takes effect at the date in which the Customer signs an Order Form or start to receive the Services (according to the earliest).
2.4. The Customer will adhere at all times to all laws, rules, and regulations applicable to the Customer’s services or activities.
2.5. The Customer will adhere at all times to the Order Form, these Terms and Conditions, the AUP and any other terms of the Agreement.
3. Customer services
3.1. The Customer is responsible for all activities that occur under the Customer’s name or in connection with its services (regardless of whether the activities are undertaken by the Customer or any third party.
3.2. PurePeak is only an intermediary for the transmission of the Customer’s services and/or content. PurePeak play a passive role as a conduit of content.
3.3. PurePeak is unable to exercise any editorial or other control over any content and PurePeak neither initiate the transmission of content, select the receivers of content, nor monitor, select or modify content, and;
4. Customer’s Responsibilities
4.1. Customer is solely responsible for the development, content, operation, maintenance, and use of Customer’s content, including but not limited to:
4.1.1. Compliance of Customer’s content with any law or regulation; and
4.1.2. Compliance of Customer’s content and/or services with the AUP; and
4.1.3. Any claims relating directly or indirectly to Customer’s content or Services; and
4.1.4. Properly handling and processing notices claiming that the Customer’s content violate any third party’s rights.
4.2. The Customer is responsible for properly configuring and using the Services and taking required steps to maintain appropriate security, protection and backup of Customer’s content.
4.3. The Customer is responsible for Customer’s clients’ use. Customer will ensure that all its clients comply with all laws and regulations and with the relevant Customer’s obligations under the Agreement. In case that the Customer becomes aware of any violation of any law or regulation or any obligations under this Agreement by any of its clients, Customer will immediately terminate such client’s access to Customer’s services.
5. PurePeak’s Services
5.1. The Services are provided “AS IS”. PurePeak and/or its affiliates, managers, employees etc. makes no representations or warranties, whether express, implied, statutory or otherwise regarding the Services’ quality and/or fitness for a particular purpose and/or data security etc. 5.2. PurePeak and its affiliates expressly disclaim any responsibility in relation to the Services and/or the data.
6. Limitation of Liability
In addition to section 5.1. above and without derogating from section 5 generality:
6.1. In no circumstances shall PurePeak, its managers, employees, Affiliates, subcontractors or agents be liable for any direct, indirect, incidental, special, consequential or exemplary damages (including damages for loss of profit).
6.2. In addition and without derogating from the generality of 6.1, neither PurePeak, nor its managers, employees, Affiliates, subcontractors or agents be responsible for any compensation, reimbursement, or damage arising in connection with:
6.2.1. Customer’s inability to use the Services (for any reason including suspension or termination of the Services by PurePeak);
6.2.2. Third party’s claim;
6.2.3. Any unauthorized access to, alteration of, or deletion, destruction, damage, loss or failure to Customer’s services or date;
6.2.4. Any damage in connection with any loss of data or services’ failure;
6.2.5. Indirect, consequential, reliance, or special losses, damages or lost revenues, lost savings, lost business opportunity or lost profits
of any kind.
6.3. In any case and without derogating from sections 6.1 and 6.2, PurePeak’s and its affiliates aggregate liability under the Agreement shall be limited to the liability sum mentioned in the SLA (“Liability Sum”), if such was signed as part of the Order Form. In case that the Order Form did not include an SLA, PurePeak’s maximum aggregate liability to the Customer shall be $5,000 US.
7. Fees and Payment
7.1. PurePeak may bill the Customer more frequently than the payment dates agreed upon in the Order Form if PurePeak suspects that Customer’s account is fraudulent or at risk of non-payment.
7.2. All amounts payable by the Customer under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding.
7.3. PurePeak shall have the right, inter alia, to setoff or withholding any sums or lien any Customer’s asset or equipment against any sum due to PurePeak under the Agreement.
7.4. Customer shall bare all fees, taxes and other payments required under any law or regulation in addition to the Service’s prices specified in the Order Form. PurePeak is entitled to pay any such fee, tax or payment and charge the Customer with such sums.
7.5. Customer will provide PurePeak any information PurePeak request to determine whether PurePeak is obligated to collect any tax, fee or payment from the Customer.
8. Suspension of the Services
8.1. PurePeak may suspend the Customer’s right to access or use any portion or all of the Services immediately upon notice to the Customer in the following cases:
8.1.1. Actual or a suspected violation of any law or regulation; or
8.1.2. Actual or a suspected violation of the AUP; or
8.1.3. Breach of any other condition of The Agreement that was not amended within 30 days from PurePeak’s notice regarding
such breach; or
8.1.4. Customer’s services poses any security risk to PurePeak or any third party;
8.1.5. Customer ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition
of Customer’s assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
8.2. In any case of suspension:
8.2.1. Customer remains responsible for all fees and charges Customer have incurred through the date of suspension;
8.2.2. Customer remains responsible for any applicable fees and charges for any Service not suspended, as well as applicable data storage
fees and charges, and fees and charges for in-process tasks completed after the date of suspension;
8.2.3. Customer will not be entitled to any rights regarding the Service, including but not only the SLA, during the suspension; and
8.3. PurePeak’s right to suspend Services shall not be exhaustive. PurePeak reserves any right or remedy and may execute them in addition or instead of its right to suspend the Services.
9.1. PurePeak may terminate the Agreement due to any default or breach of the Agreement by the Customer, upon 30 days advance notice to the other party, unless the Customer has cured the default or breach, to PurePeak’s satisfaction, within the 30 day notice period.
9.2. In addition, PurePeak may also terminate the Agreement, the Services or any part thereof, immediately upon notice to the Customer in the following cases:
9.2.1. Actual or a suspected violation of any law or regulation; or
9.2.2. Actual or a suspected violation of the AUP; or
9.2.3. In case of any act or omission by the Customer or Customer’s affiliates results in a suspension described in Section 8; and
9.2.4. In case PurePeak was required to do so by any authority or any third party or in order to comply with the law or requests of
9.2.5. If PurePeak believes that providing the Services could create an economic or technical burden, security risk or any other material
potential damage for PurePeaks;
9.2.6. In case that PurePeak determine that the use of the Service by the Customer or its affiliates has become impractical or unfeasible
for any legal or regulatory reason.
9.3. PurePeak’s right to terminate the Agreement is in addition to any other right or remedy. PurePeak may also, inter alia, terminate some Services or take any action to stop the misuse of the services or violation of the Agreement as it deems appropriate. These measures may include, for example, blocking access to particular services, content, systems or resources, or suspending or terminating connection to Customer, or terminating the Agreement and/or any part of it.
9.4. Upon termination of the Agreement:
9.4.1. All Customer’s rights under this Agreement immediately terminate;
9.4.2. Customer remains responsible for all fees and charges Customer have incurred through the date of termination, including fees and
charges for in-process tasks completed after the date of termination.
10. Propriety Rights
10.1. PurePeak grant the Customer a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to use the Services solely in accordance with this Agreement.
10.2. Neither Customer nor its affiliates may use the Service in any manner or for any purpose other than as expressly permitted by this Agreement. Neither Customer nor any of its affiliates may, or may attempt to:
10.2.1. Modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Service;
10.2.2. Reverse engineer, disassemble, or decompile the Service or apply any other process or procedure to derive the source code of any
software included in the Service;
10.2.3. Access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas;
10.2.4. Resell or sublicense the Service. All licenses granted to the Customer under this Agreement are conditional on Customer’s continued
compliance this Agreement, and will immediately and automatically terminate if the Customer do not comply with any this
11.1. Customer will defend, indemnify, and hold harmless PurePeak, its affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning:
11.1.1. Customer or any of the Customer’s affiliates’ use of the Service;
11.1.2. Breach of the Agreement or violation of applicable law by Customer or its affiliates;
11.1.3. Customer’s services and/or content or the combination of Customer’s services and/or content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Customer’s services and/or content or by the use, development, design, production, advertising or marketing of Customer’s services and/or content;
11.1.4. A dispute between the Customer and any third party.
11.2. If PurePeak or its affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, Customer will also reimburse PurePeak and/or its affiliates for attorneys’ fees, as well as PurePeak’s employees and contractors time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates.
11.3. Indemnification procedure:
In case that any demand or claim is asserted or any civil, criminal, administrative or investigative action or proceeding (any such demand, claim, action or proceeding,: “Claim”) is threatened or commenced against PurePeak:
11.3.1. PurePeak will promptly notify the Customer thereof. PurePeak’s failure to promptly notify the Customer will only affect Customer’s obligations to the extent that PurePeak’s failure materially prejudiced Customer’s ability to defend the claim.
11.3.2. If the Customer acknowledges in writing an indemnification obligation under this Section, it will be entitled to elect, within thirty (30) days after its receipt of such notice, to assume sole control over the investigation and defense of such Claim at its own cost, risk and expense.
11.3.3. In case that the Customer assumed sole responsibility according to section 11.3.2 above, the Customer shall be entitled to enter into a settlement of a Claim subject to PurePeak’s consent (such consent shall not be unreasonable withheld).
11.3.4. If the Customer does not elect to assume sole control of the defense of such Claim, PurePeak will have the right to defend such Claim in such reasonable manner as it may deem appropriate, at the cost, risk and expense of the Customer. Customer agrees to provide reasonable cooperation and assistance to PurePeak in such case, including but not limited to providing access to relevant information and employees.
12. Modifications to the Agreement
12.1. PurePeak may modify the Agreement (including the AUP or the Terms of Service) at any time by posting a revised version on PurePeak’s website (www.purepeak.com). The modified terms will become effective upon posting.
12.2. By continuing to use the Service after the effective date of any modifications to this Agreement, Customer agrees to be bound by the modified terms. It is Customer’s responsibility to check PurePeak’s web site regularly for modifications to this Agreement.
13.1. Customer will not disclose any PurePeak’s confidential information during the term of the Agreement or at any time during the 5 year period following the end of the Agreement term. Customer will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of PurePeak’s confidential information, including, at a minimum, those measures Customer take to protect its own confidential information of a similar nature. Customer will not issue any press release or make any other public communication with respect to the Agreement or Customer’s use of the Service unless Customer received prior written consent from PurePeak.
13.2. PurePeak and its affiliates will not be liable for any delay or failure to perform any obligation under the Agreement where the delay or failure results from any cause beyond its reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
13.3. PurePeak and the Customer are independent contractors. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.
13.4. These Terms and Conditions do not create any third party beneficiary rights in any individual or entity that is not a party to the Agreement.
13.5. PurePeak may provide any notice to the Customer under the Agreement by sending a message to the email address that was provided by the Customer in the Order Form. Customer will be deemed to have received any email sent to such email address when PurePeak send the email, whether or not Customer actually receives the email.
13.6. Customer will not assign the Agreement or any part thereof, or delegate or sublicense any of the Customer’s rights under the Agreement, without PurePeak’s prior written consent. Any assignment or transfer in violation of this section will be void.
13.7. The failure by PurePeak to enforce any provision of the Agreement will not constitute a present or future waiver of such provision nor limit PurePeaks right to enforce such provision at a later time. All waivers by PurePeak must be in writing to be effective.
13.8. If any portion of the Agreement is held to be invalid or unenforceable, the remaining portions of the Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from the Agreement but the rest of the Agreement will remain in full force and effect.
13.9. The Agreement is governed by the Laws of Israel. The parties expressly exclude application of the provisions of the Vienna Convention on the International Sale of Goods.
13.10. Any dispute in connection with the Services and/or this Agreement which the parties are unable to amicably resolve shall be settled by the competent courts of Tel Aviv Israel (sole jurisdiction).