General Terms Of Service

These Customer Terms of Service govern the use of the Tonkean's Services (as defined below), which are the property of Tonkean, Inc. ("Tonkean"). The Purchase Order submitted to Tonkean (the "PO"), whether by a purchase order document countersigned by Tonkean or using Tonkean's online subscription, will specify the Customer's identity and details ("Customer"), the quantities selected, the services selected (the "Services"), Tonkean's fees and charges (the "Fees"), the term of the agreement between the parties (the "Term") and other details of the Customer's order. The PO, these General Terms of Service (the "General Terms"), Tonkean's Privacy Policy available at https://tonkean.com/privacy/ and the User Terms of Use available at https://tonkean.com/user-terms/ will constitute the complete agreement between Tonkean and the Customer (the "Agreement"). Execution of the PO or use of the Platform by the Customer will conclusively indicate Customer's acceptance of the Agreement. If there is any conflict or inconsistency between these General Terms and the PO, these General Terms shall prevail unless the PO specifically states otherwise.

  1. The Platform

Tonkean's Platform is a business management platform, which enables real time and automated data monitoring and analysis, and communication within organizations and team members (respectively, the "Users" and the "Platform"). The Platform is mainly comprised of a server (provided via a cloud-based SaaS model), a business management dashboard tool, an A.I. Bot and messaging user applications, as well as additional tools and features as may be further detailed in the PO. Customer is responsible for all uses, acts or omissions of Users who belong to the Customer's organization, or which are related or affiliated with the Customer.

  1. Authorized Representative

You are accepting these General Terms on behalf of the Customer, which is your employer or another entity you are affiliated with, and therefore you represent and warrant that: (i) you have full legal authority to bind the Customer to these General Terms, and to specify the Customer's administrator(s) who will have the rights to access all accounts under the Customer's domain ("Administrator", as further detailed in the User Terms of Use); (ii) you have read and understood this Agreement; and (iii) you agree, on behalf of the Customer, to this Agreement. If you don't have the legal authority to bind the Customer, please do not accept these General Terms (or, if applicable, do not sign this Agreement), and such Customer may not use the Service.

  1. Intellectual Property and License

Tonkean retains all right, title, and interest in and to the Platform and Services (including all related intellectual property rights). Subject to the Customer's compliance with the Agreement, and during the Term, Tonkean hereby grants Customer a limited, non-transferable, non-exclusive, non-assignable, non-sub-licensable, personal license to use the Platform for internal, non-commercial uses, provided that Customer will not alter or modify any part of the Platform or Services. The Platform may not be downloaded, accessed, used or installed on or for a number of Users exceeding the number of licenses granted as set forth in the PO. Except as expressly provided herein, no other rights or licenses, expressed or implied, are granted to Customer by Tonkean with respect to the Platform, including any proprietary information, patent, copyright, trademark, trade secret, or other intellectual property right, whether registered or not. Without limiting the foregoing, Customer may not, and may not permit or aid others to: (i) use the Platform or Services for any purpose other than the purpose explicitly set forth herein; (ii) copy, alter, translate or reproduce the Platform or Services; (iii) publish, sell, distribute, assign, pledge or transfer (by any means), display, sublicense, rent, lease or otherwise share the rights granted under this Agreement; (iv) reverse engineer, de-compile, modify, revise or disassemble the Platform or Services or any part thereof, emulate or create derivative works thereof, or extract source code from the object code of the Platform, or access the Platform or Services in order to build a competing product or service; (v) use the Platform or Services in any manner that is illegal or not authorized by this Agreement; or (vi) grant access to the Platform or Services to third parties or attempt to do so or purport to be entitled to do so.

All right, title and interest in the Platform and Services and any materials provided by Tonkean to the Customer, and any development or derivative thereof, including without limitation, all copyrights, trade secrets, and other intellectual property rights pertaining thereto shall remain vested in Tonkean and its licensors and this Agreement does not convey to Customer any interest in or to the Platform or Services, except for a limited right of use as set forth herein, terminable in accordance with the terms of the Agreement.

All photos, texts, scripts, designs, graphics, logos, audios, videos, songs, interactive features, trademarks, service marks, trade names and other content ("Content") used, displayed, included, incorporated, uploaded, posted or published by Tonkean or other third parties, as part of the Platform or Services (other than User Content (as such term is defined below)), are the sole property of Tonkean and/or its licensors ("Tonkean’s Content"), subject to copyright and other intellectual property rights under applicable laws, and Customer may not use, download, distribute and/or copy them, in whole or in part, without the prior written permission of Tonkean or any relevant third party.

If Customer provides Tonkean with feedback or suggestions regarding the Platform, such feedback and suggestions shall become Tonkean's property and Tonkean may use them at its sole discretion, without any obligation to compensate or credit Customer in any manner.

  1. Third Party Materials

The Platform may contain software or other materials provided by third parties (including "open source" software) ("Third Party Materials"). The license terms, copyright notices and available source code with respect to Third Party Materials can be found at https://tonkean.com/terms/thirdParty/. Use of such Third Party Materials shall be governed by the license agreements specific to each such Third Party Material, provided, however, that in addition to any terms and conditions of any third party software license as set forth in the abovementioned webpage, and without derogating from such terms, the disclaimer of warranty and limitation of liability set forth herein shall apply to all software. If the Platform contains any software provided by third parties not noted in the abovementioned webpage, the restrictions contained in this Agreement shall apply to all such third party software providers and third party software as if they were Tonkean and the Platform, respectively. By using the Platform Customer agrees to the licenses that apply to any Third Party Materials.

  1. Customer's Obligations

Customer shall provide Tonkean with all reasonable cooperation in relation to this Agreement and each PO, and shall comply, and be responsible and liable for the Users' compliance, with the terms of the Agreement and all applicable laws and regulations. All Users shall further comply with the "End User Terms of Use", available at https://tonkean.com/user-terms/, as may be amended, supplemented or replaced from time to time by Tonkean.

Customer shall carry out all Customer's responsibilities set out in this Agreement or the PO in a timely and efficient manner. In the event of any delays by the Customer, Tonkean may adjust any agreed timetable or delivery schedule as reasonably necessary.

Customer is solely responsible for obtaining, maintaining and operating the User's devices (including, without limitation, smartphones, tablets and computers), and any related equipment, hardware, software, backup systems, security systems and measures or ancillary services (the "Customer's Infrastructure") necessary in order to access and use the Platform. Customer shall be solely responsible and liable for any fees charged by third parties in connection with the Customer's Infrastructure. Customer's Infrastructure shall, at minimum, meet the specifications set forth in the PO. Customer shall be solely responsible for procuring and maintaining its network connections and telecommunications links, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet. Tonkean shall have no responsibility or obligation in connection with the above. Without limiting the generality of the aforementioned, Tonkean is not responsible for any delays, delivery failures, or any other loss or damage resulting from the storage or transfer of data over communications networks and facilities, including the internet, and to the performance of any third-party communication or storage provider, and the Customer acknowledges that the Platform and/or Services may be subject to interruptions, limitations, delays and other risks associated with the use of such storage and communications facilities.

Customer is solely responsible for responding to any claims, requests and demands by the Users or any other third party related to the Customer. Tonkean will, to the extent allowed by law, promptly notify Customer of its receipt of a User or such related third party claim, request or demand and comply with Customer's reasonable requests regarding the handling to such claim, request or demand. Customer is responsible for all acts or omissions of Users which are related or affiliated with the Customer, including, without limitation, acts or omissions of Users which belong to the Customer's organization. Without derogating from Tonkean's rights under this Agreement and under applicable law, Customer shall indemnify and hold harmless Tonkean and its subsidiaries, affiliates, directors, officers, employees, agents, and personnel against any losses, liabilities, damages, and expenses to the extent arising out of or related to (i) Customer's (or Customer's Users') use or misuse of the Services; (ii) the use or misuse of contents of the Services by a third party even if using Customer's (or Customer's Users') password(s); (iii) claims of Users or any other third party related to the Customer, including without limitation, to the Customer's Users; or (iv) a breach by any User or any other third party related to the Customer of this Agreement or the End User Terms of Use.

  1. Tonkean's Obligations

Tonkean undertakes that the Platform and Services will be provided with reasonable skill and care.

This Agreement shall not prevent Tonkean from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

  1. User Content

While using the Platform, Users may upload, publish, display and transfer data, information, files, documents and other Content to Customer or other Users, as well as submitting and publishing profile photos ("User Content"). Tonkean is not directly involved in any communication between Users, and shall have no liability or responsibility with respect to any User Content. Customer shall be solely responsible and liable for any User Content that Users will publish, send, transfer or share via the Platform and for any damage or loss resulting therefrom and shall comply in all respects with any and all applicable laws, regulations and industry guidelines applicable to the processing of User Content. Tonkean shall have no right in the User content, except for the minimal rights required in order to facilitate the use of the Platform and shall not use the User Content for any other purpose.

Customer shall ensure that the Users are entitled to transfer the User Content, including, to the extent applicable, to Tonkean so that Tonkean may lawfully use, process and transfer the User Content.

Customer shall indemnify and hold harmless Tonkean or anyone on its behalf from any liability, cost, damage and expense (including reasonable legal fees) caused in connection with the User Content.

  1. Support and Updates

Tonkean may offer a Support & Maintenance Package ("SMP") for the Platform, as set forth in the PO and the Service Level Annex thereto, and subject to the terms thereof. Under the SMP, Customer is also eligible to receive access to the version of the Platform edition that Customer has licensed and all maintenance releases and updates for that edition that are released during the Term, to the extent released. Maintenance releases, updates and upgrades may or may not include additional features. Tonkean is not obligated to release any updates or upgrades of the Platform, at any time whatsoever.

If Tonkean, in its discretion, requests written verification of an error or malfunction discovered by Customer or requests supporting example files that exhibit a Platform problem, Customer shall promptly provide such verification or files, by e-mail, telecopy, or overnight mail, setting forth in reasonable detail the respects in which the Platform fails to perform. Customer shall use reasonable efforts to cooperate in diagnosis or study of errors. Tonkean may include error corrections in maintenance releases, updates, or any other releases of the Platform. Technical support only covers issues or questions resulting directly out of the operation of the Platform and Tonkean is in no way obligated to provide any generic consultation, assistance, or advice under any circumstances.

Updates to the Platform may require the updating of software not covered by this Agreement before access to the updated Platform is resumed. Updates of the operating system and application software not specifically covered by this Agreement are Customer's responsibility and will not be provided by Tonkean under this Agreement.

Tonkean shall be under no obligation to provide any technical support if, in Tonkean’s opinion, the Platform has failed due to the following conditions: (i) alterations, modifications or attempts to change the Platform by Customer or Users; (ii) causes external to the Platform, such as natural disasters, the failure or fluctuation of electrical power, or Customer's equipment failure.

  1. Service Level

Tonkean shall use all commercially reasonable endeavours to make the Platform available continuously, except for during: (i) planned maintenance carried out during the maintenance window as reasonably established by Tonkean from time to time, and, in case of any change to the established maintenance window, only after Tonkean has given the Customer written notice at least 3 business days in advance of such window; (ii) unscheduled maintenance, provided that Tonkean will use reasonable effort to give the Customer prior written notice as is reasonable under the circumstances; or (iii) maintenance which may be announced by third party suppliers, such as Microsoft Azure.

Tonkean may suspend the access to the Platform, in whole or in part, in any event of emergency or other security issue. Such events may include, without limitation, any unauthorized access to the Platform or use of the Platform or Services in violation of the End User Terms of Use. In the event of any loss or damage to User Content, Tonkean shall use reasonable endeavours to restore the lost or damaged User Content from the latest back-up of such User Content available to Tonkean, to the extent available. Tonkean shall not be responsible for any loss, destruction or alteration of User Content, however caused.

  1. Payments

In consideration for the Platform license and any Services which Tonkean may provide Customer and its Users, Customer shall pay to Tonkean the Fees set forth in the PO, in the currency set forth in the PO. In addition to such amounts, Customer shall pay Tonkean an amount equal to any applicable sales, use, property, value-added, or any other taxes, except income tax, resulting from any transaction contemplated hereunder. Customer shall pay each invoice according to the payment terms set forth in the PO. All orders are final. Unless as otherwise specified in the PO, credit card details are needed to complete an order, and the Service will be available to you following successful completion of billing. You will be notified accordingly. You authorize us to continue to charge your credit card or any replacement card upon the beginning of each billing period for the agreed amount of such period, but failure to charge your card does not limit your payment obligation. Billing for our payment programs is ongoing, until terminated by you at least 14 days before the next billing cycle. Upon such termination, the Services purchased will be available to you until the end of the current cycle. Amounts paid to us are not refundable, unless required by mandatory law. Customer's payment obligation is not subject to any lien, withholding or set off. If Tonkean has not received payment of any sums within twenty (20) days after the due date and does not receive payment within a further period of ten (10) days from the date of written notification of non-payment, then without prejudice to any other rights and remedies of Tonkean, Tonkean may suspend the access to the Platform, suspend any of the Services, and/or terminate this Agreement. Furthermore, if the Customer fails to make a payment when due of any sum payable under this Agreement, the liability of the Customer shall be increased to include interest on that sum from the date when such payment was due until the date of actual payment at a rate equal to 1.5% per month or the maximum interest rate allowed by applicable law, whichever is less, without derogating from any right or remedy of Tonkean under any applicable law.

After your subscription is cancelled, you will not be able to access the subscription features, or any content, data and information stored in your account.

Prices are subject to change with respect to new billing periods, provided that notice is given at least 30 days in advance. No refund or protection is given in case of price decrease or promotional offering. If a purchased Service becomes permanently unavailable during a billing period, you will be entitled to a pro-rata refund. In all other cases, claims for refund are excluded.

Payments may be processed by a third party in its exclusive responsibility. We will not be liable for the actions and omissions of such third party provider. Your use of payment processing services may be subject to terms and conditions posted within, adjacent to or linked to the payment process. You hereby authorize the payment processor to provide data and information to us. We are free to replace the payment processor service from time to time or process payments ourselves.

  1. Confidentiality

Each Party ("Receiving Party") shall keep confidential and shall not disclose to any third party any Confidential Information (as such term is defined below) which it has acquired from the other Party ("Disclosing Party") and shall only use such Confidential Information for purposes in connection with this Agreement. Such confidentiality obligation shall continue after the termination of the Agreement. It is hereby clarified that User Content shall not be deemed information acquired by Tonkean and Tonkean's obligation with respect to its security shall be in accordance with the section captioned "Security" below.

Customer acknowledges that the Platform contains confidential and proprietary information and trade secrets of Tonkean and agrees to keep the Platform and Services confidential. Customer further acknowledges that any unauthorized disclosure, use, or copying of the Platform or Services may cause Tonkean serious financial loss.

"Confidential Information" means any know-how, any trade or business secrets, any commercial, financial, business, technical or other confidential information of whatever nature relating to the business of a Party (whether written, oral or in electronic or other form) including this Agreement, which is clearly designated by a Party as being confidential (whether or not it is marked as confidential) or of clear confidential nature. Confidential Information shall not include information that: (i) is or becomes publicly known other than through any act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession before the disclosure; (iii) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; (iv) is independently developed by the Receiving Party without use of Confidential Information of the Disclosing Party, which independent development can be shown by written evidence; or (v) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

  1. Termination

The Agreement shall be in effect for as long as any PO is in effect and their termination whilst any PO is ongoing shall not take effect until the expiration date and/or termination of the last remaining current PO whereupon it shall automatically terminate.

Without prejudice to any other rights or remedies either Party may have, either Party shall be entitled to terminate this Agreement immediately without liability to the other Party if: (i) the other Party commits a material breach of any of the terms of the Agreement and fails to remedy that breach within 30 days of being notified in writing of the breach; (ii) the other Party files a petition for relief under the bankruptcy code or any other insolvency law or seeks to adjudicate it as bankrupt or insolvent, or seeks dissolution, winding up, liquidation, reorganization, arrangement, adjustment, or composition of it or its debts under any law relating to bankruptcy, insolvency, or reorganization or relief of debtors or fails to file an answer or other pleading denying the material allegations of any such proceeding filed against it; (iii) takes any corporate action to authorize or effect any of the foregoing actions; (iv) makes an assignment for the benefit of creditors; or (v) ceases to be solvent, ceases to conduct its business substantially as now conducted, or is enjoined, restrained, or in any way prevented by court order from conducting all or any material portion of its business affairs. In any of the above circumstances, Tonkean may also, at its discretion and without prejudice to any other rights or remedies or Tonkean, suspend the access to the Platform and/or suspend any of the Services.

Upon termination of this Agreement for any reason, (i) each Party will return or destroy, at the other Party’s option, any materials in its possession that contain Confidential Information belonging to the other Party; (ii) Customer shall immediately cease, and ensure all Users cease, all use of the Platform and all licences granted under this Agreement shall immediately terminate; and (iii) Customer shall pay Tonkean all amounts due prior to the effective date of termination.

  • Termination of the Agreement shall not prejudice or affect: (i) any right of action or remedy which shall have accrued during the Term; and (ii) any indemnification obligation and any obligation which, by its nature, is intended to survive the termination hereof.
  1. Security

Tonkean cares about the security of the Platform and the User Content, and therefore it uses technical and organizational measures designed to secure the User Content and other data, from accidental loss and from unauthorized access, use, alteration or disclosure. However, there is always risk involved in electronic transmission and storage of information and allowing access to electronic systems. As a result, Tonkean cannot fully ensure or warrant the absolute security and privacy of Customer's (or Customer's Users') User Content or personal information, and Customer and its Users acknowledge and agree to these reservations.

  1. User Privacy

Tonkean and Customer shall comply with Tonkean's Privacy Policy, available at: https://tonkean.com/privacy/. Without derogating from the aforementioned and from the terms of Tonkean's Privacy Policy, Customer shall ensure that its Users and any relevant third parties have been informed of, and have given their explicit consent to, such use, processing, and transfer as required by any and all laws, regulations and industry guidelines applicable to the processing of personal information, and shall comply with all other laws, regulatory requirements or codes or practice governing the use, storage or transmission of such personal information. Customer shall take organisational measures against unauthorized or unlawful processing of the personal information or its accidental loss, destruction or damage.

  1. Warranty and Disclaimer

Tonkean warrants that during the Term, and subject to the Customer's compliance with this Agreement, in the event that the Platform shall contain any material errors which will prevent the ordinary use of the Platform, and subject to the SMP terms set forth in the PO (to extent purchased), Tonkean shall make reasonable commercial efforts, either to repair or replace such erroneous Platform, for no additional cost (in its sole discretion). Tonkean is not obligated to fix errors that are immaterial. Immaterial errors are those that do not prevent the ordinary use of the Platform as determined by Tonkean in its sole discretion.

Tonkean does not warrant that the Platform will be error free or secure, that the use of the Platform will be uninterrupted or that it shall meet Customer's requirements or expectations, including with respect to any actions or outcomes of use of Tonkean's A.I. Bot. THE WARRANTIES IN THIS AGREEMENT WILL NOT APPLY IF THE PLATFORM IS MODIFIED IN ANY WAY, OR USED IN ANY WAY INCONSISTENT WITH THIS AGREEMENT. THIS SECTION STATES THE SOLE WARRANTY OF TONKEAN RELATING TO THE PLATFORM. This warranty shall not apply if the Platform is used on or in conjunction with hardware or software other than the unmodified version of hardware and Platform with which the Platform was designed to be used as described in the PO.

In case of a claim of a third party that normal use of the unmodified Platform by Customer violates or infringes intellectual party rights of such third party, Tonkean will, at its sole discretion, either (i) procure a license from such third party, (ii) modify the Platform to prevent infringement, or (iii) terminate this Agreement and issue to Customer a refund for any payments made by Customer in respect of the post-termination period. No other rights or remedies will accrue against Tonkean.

EXCEPT FOR THE WARRANTY SET FORTH ABOVE, CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE PLATFORM IS AT CUSTOMER'S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND RESULTS IS SOLELY WITH CUSTOMER. THE PLATFORM IS SUPPLIED "AS IS, AS AVAILABLE", AND WITHOUT WARRANTIES, GUARANTEES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, COMMON LAW OR OTHERWISE. TONKEAN DOES NOT WARRANT THAT THE USE OF THE PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE OR WILL MEET CUSTOMER'S SPECIFIC REQUIREMENTS OR EXPECTATIONS, OR THAT ANY INFORMATION OR ADVICE OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY OR IMPOSE ANY LIABILITY NOT EXPRESSLY STATED IN THESE GENERAL TERMS. TONKEAN MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, REGARDING THE PLATFORM, THE CONTENT AND THE USE THEREOF, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AVAILABILITY, SECURITY, COMPATIBILITY, NON-INFRINGEMENT OR COMPLETENESS OF RESPONSES, RESULTS AND LACK OF NEGLIGENCE.

  1. Limitation of Liability

The Service provides certain ideas, suggestions, analyses and other data, which are all provided for informational purposes only, and not as an advice. We accept no responsibility or liability in contract, tort, negligence, breach of statutory duty or otherwise for any inconvenience, loss, damage, costs or expenses whatsoever incurred or suffered by anyone as a result of any information contained in or provided by the Service (unless such liability may not be excluded or limited as a matter of law, and in such case, our liability will be limited to the maximum extent permitted by law).

IN NO EVENT SHALL TONKEAN, ITS SHAREHOLDERS, DIRECTORS, OFFICERS, AFFILIATES, AGENTS, MEMBERS OR EMPLOYEES BE LIABLE, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING LABOUR COSTS, LOSS OR CORRUPTION OF DATA OR INFORMATION, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF BUSINESS INFORMATION, PURE ECONOMIC LOSS, OR LOSS OF USE OR OTHER PECUNIARY LOSS, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, THE PLATFORM, THE SERVICES, OR CUSTOMER'S USE OF OR INABILITY TO USE THE PLATFORM OR SERVICES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY (WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, TORT, NEGLIGENCE, EQUITY, PRODUCT LIABILITY, OR OTHERWISE), AND REGARDLESS OF WHETHER TONKEAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE. YOU SPECIFICALLY AGREE THAT WE ARE NOT RESPONSIBLE OR LIABLE TO YOU OR ANYONE ELSE FOR ANY UNLAWFUL, EXPLICIT OR OTHERWISE OBJECTIONABLE CONDUCT OF ANY OTHER PARTY ON OR THROUGH THE SERVICE, OR FOR ANY INFRINGEMENT OR VIOLATION OF YOUR RIGHTS BY ANY OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, INTELLECTUAL PROPERTY RIGHTS, RIGHTS OF PUBLICITY, OR RIGHTS OF PRIVACY.

IN NO CASE SHALL THE AGGREGATE LIABILITY OF TONKEAN AND ITS SHAREHOLDERS, DIRECTORS, OFFICERS, AFFILIATES, AGENTS, MEMBERS AND EMPLOYEES UNDER THIS AGREEMENT OR ARISING OUT OF OR OTHERWISE RELATED TO CUSTOMER'S USE OF THE PLATFORM OR SERVICES EXCEED THE CONSIDERATION CUSTOMER ACTUALLY PAID TO TONKEAN FOR THE USE OF THE PLATFORM AND SERVICES IN THE THREE MONTHS PRECEDING THE CAUSE OF THE CLAIM.

WITHOUT DEROGATING FROM THE FOREGOING, TONKEAN ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF TONKEAN CONTENT, (II) ANY UNAUTHORIZED ACCESS TO OR USE OF CUSTOMER'S SERVERS OR DEVICES AND ANY INFORMATION STORED THEREIN, (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION, LOSS OR LEAK OF DATA OR OTHER COMMUNICATIONS (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, INCLUDING VIRUSES AND TROJAN HORSES WHICH MAY BE TRANSMITTED TO OR THROUGH THE PLATFORM THROUGH THE ACTIONS OF ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE PLATFORM.

  • Nothing in this Agreement is intended to exclude liability that cannot be excluded under applicable law (only to the extent such liability cannot be excluded).
  • You hereby represent and warrant to us, that any users of your services are and will be bound by a limitation of liability toward us at the same scope as provided herein.
  • If you are dissatisfied with any portion of the Service, or with any of these terms of use, your sole and exclusive remedy is to discontinue using the Service.
  1. Export Controls

Customer must comply with all applicable export control laws, rules and regulations of the government of the State of Israel, and the government of the country in which Customer installs or accesses the Platform, or which pertain and/or apply to the Platform. Customer agrees that that Platform will not be shipped, transferred, or exported into any country or used in any manner prohibited by law. Customer acknowledges that the Platform may contain cryptographic features and is subject to international and local country laws governing import, export, distribution and use of cryptography. In particular, but without limitation, the Platform may not be exported or re-exported (a) into any U.S. or Israel embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or any other restricted party lists of the United States or the State of Israel. By using the Platform, Customer represent and warrant that Customer is not located in any such country or on any such list.

  1. Publicity

The Customer agrees that Tonkean will be entitled to use the Customer’s name and logo for its marketing efforts.

  1. Force Majeure

Without derogating from any other provision limiting the responsibilities of a Party, neither Party ("Affected Party") shall have any liability to the other Party under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (excluding those involving the workforce of the Party seeking to rely on this clause), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm ("Force Majeure Event"), provided that the other Party is notified of such an event and its expected duration.

The Affected Party shall: (i) carry out its duties to the best level reasonably achievable in the circumstances of the Force Majeure Event; (ii) take all commercially reasonable steps to overcome and mitigate the effects of the Force Majeure Event as soon as reasonably practicable; and (iii) notify the other party when the Force Majeure Event has stopped.

If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than thirty (30) days the other Party may terminate this Agreement immediately on written notice to the Affected Party.

  1. Parties' Relationship; Third Parties

The Agreement does not, and shall not be construed, to create a joint venture, agency relationship, employment or partnership between the Parties and neither Party shall have the authority to bind the other in any way (including to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

The Agreement does not confer any rights on any person or party other than Tonkean and the Customer.

  1. General

Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, without regard to any conflicts of laws provisions therein, and any dispute arising out of or in connection with this Agreement is hereby submitted to the sole and exclusive jurisdiction of the competent courts in San Francisco County, California. Each Party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Agreement.

If a PO has been fully executed by Tonkean and Customer, then solely with respect to such PO and Customer, the Agreement may only be modified by a written document which has been signed by both parties. Otherwise, these General Terms may be modified by us at any time, with or without notice. No failure of a Party to exercise, and no delay by it in exercising, any right, power or remedy in connection with the Agreement will operate as a waiver of such right, power or remedy nor will any single or partial exercise of any right, power or remedy preclude any other or further exercise of such right, power or remedy or the exercise of any other rights, powers or remedies (whether provided by law or otherwise). No waiver of any breach of this Agreement shall be deemed to be a waiver of any subsequent breach.

If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force, and such provision shall be reformed only to the extent necessary to make it valid, enforceable and legal.

Customer may not assign this Agreement, and any rights or obligations hereunder, in whole or in part without the prior written consent of Tonkean, and any attempt by Customer to so assign this Agreement shall be deemed null and void. Tonkean expressly reserves the right to assign this Agreement to an acquirer of or successor to substantially all of its business assets related to this Agreement and/or to the Platform without Customer's consent and without providing the Customer any notice. The Customer shall not have any lien or set-off right against Tonkean, and the Customer hereby waives any such right.

There are no third-party beneficiaries to this Agreement.

  1. Notices

All notices, requests, demands, and other communications hereunder shall be in writing and delivered in person, by mail, by recognized courier service, or by facsimile to the intended recipient at its address specified in the PO. Either Party may from time to time change its address by giving the other Party notice of the change in accordance with this section. Any notice served personally shall be deemed to have been received on the day of service, any notice sent by registered mail shall be deemed to have been received five business days after being posted (eight – if sent internationally). Any notice sent by facsimile or email shall be deemed to have been received upon receipt of confirmation of receipt, unless sent outside recipient's normal business hours, in which case, it will be deemed received on the following business day.

Last Updated: August, 2017