INCREDIBULID LICENSE AGREEMENT
By clicking the "Accept" or “OK” button, or installing, accessing and/or using the IncrediBuild software (the “Software”) you expressly acknowledge and agree that you are entering into a legal agreement with IncrediBuild Software Ltd.  ("Company", “we", "us" or "our"), and have understood and agree to comply with, and be legally bound by, the terms and conditions of this License Agreement ("Agreement"). You hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law.  If you do not agree to be bound by this Agreement please do not download, install, access or use the Software. You and the Company shall referred each as a “Party” and collectively, the “Parties”. This Agreement is entered between the Parties in connection with the license to the Software and/or related services that you have purchased from our authorized partners (“Marketplace”) and is also subject to the terms and conditions between you and the Marketplace (“Marketplace Terms”).

 
1.	License. Subject to the terms and conditions of this Agreement, Company hereby grants you a limited, non-exclusive, non-sublicensable, non-transferable and revocable license to download, install and/or access and use (as applicable) the Software. Unless otherwise indicated, the term “Software” also includes any documentation (“Documentation”) provided to you in connection with their operation. You may only use the Software in accordance with the Documentation, subject to the usage limitations indicated in the Marketplace Terms and applicable laws. The Marketplace Terms are, for the avoidance of doubt, in addition to, and without derogating from, any other use restrictions set forth herein.
2.	Marketplace Terms. All the terms and conditions specified in the Marketplace Terms between you and the Marketplace are binding and you acknowledge and agree to comply with them. You acknowledge and agree that the Marketplace Terms are concluded between Marketplace and you only, and not with Company. To the extent there is any conflict between this Agreement and the Marketplace Terms, this Agreement shall prevail. Any rights granted to you in such Marketplace Terms which are not contained in this Agreement, apply only in connection with the Marketplace and in that case, you must seek redress or realization or enforcement of such rights solely with the Marketplace and not us.
3.	Services. Support and maintenance services are provided according to our Service Level Agreement available at: [https://azure.microsoft.com/en-us/support/legal/sla/]. You hereby acknowledge that the Marketplace, and not us, are responsible for the availability of the Software.    
4.	Payment. The usage of the Software is conditioned on your payment of the applicable fees as set forth in the Marketplace Terms. You hereby agree to and hereby release and forever discharge the Company and its respective assigns from all claims, demands or  damages growing out of or in any way related to any fee or amount charged or overcharged by the Marketplace.
5.	Account.  The Software may only be used through an account (the “Account”). Such Account may be accessed solely by you or service providers who are explicitly authorized by you to use the Software (each, a “Permitted User”). You will ensure that the Permitted Users keep the Account login details secure at all times and comply with the terms of this Agreement; and will be fully responsible for any breach of this Agreement by a Permitted User. Unauthorized access or use of the Account or the Software must be immediately reported to the Company.
6.	 Prohibited Uses. Except as specifically permitted herein, without the prior written consent of the Company, you must not, and shall not allow any Permitted User or any third party to, directly or indirectly: (i) copy, modify, create derivative works of or distribute any part of the Software (including by incorporation into its products); (ii) sell, license (or sub-license), lease, assign, transfer, pledge, or share your rights under this Agreement with any third party; (iii) use any “open source” or “copyleft software” in a manner that would require the Company to disclose the source code of the Software to any third party; (iv) disclose the results of any testing or benchmarking of the Software to any third party; (v) disassemble, decompile, reverse engineer or attempt to discover the Software’s source code or underlying algorithms; (vi) use the Software in a manner that violates or infringes any rights of any third party, including but not limited to, privacy rights, publicity rights or intellectual property rights; (vii) remove or alter any trademarks or other proprietary notices related to the Software; (viii) circumvent, disable or otherwise interfere with security-related features of the Software or features that enforce use limitations; (ix)  export, make available or use the Software in any manner prohibited by applicable laws (including without limitation export control laws); and/or (x) transmit any malicious code (i.e., software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system) or other unlawful material in connection with our Software. 
7.	Data and Analytics Information. Upon registration to use the license to the Software, Company may request that you provide, inter alia, contact information, full name, organization name, phone number, valid email address. We use this information to provide you with the license file to the Software and contact you to provide you with important information, software updates, required product and service update notices and marketing promotions. We also reserve the right to use your name and logo to present you as a customer in our website and other social media advertising or marketing promotions we make from time to time. You hereby warrant and represent that you will (i) provide all appropriate notices, (ii) obtain all required informed consents and/or have any and all ongoing legal bases, and (iii) comply at all times with any and all applicable privacy and data protection laws and regulations (including, without limitation, the EU General Data Protection Regulation (“GDPR”)), for allowing Company to use and process the data in accordance with this Agreement (including, without limitation, the provision of such data to Company (or access thereto) and the transfer of such data by Company to its affiliates, subsidiaries and subcontractors, including transfers outside of the European Economic Area), for the provision of the services and the performance of this Agreement. We may however be required to disclose the data to satisfy any applicable law, regulation, legal process, subpoena or governmental request. Notwithstanding anything to the contrary, no limitation of liability will apply to breach of  this Section.  
8.	 Warranties. Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law. 
9.	Intellectual Property Rights. The Software is not for sale and is the Company’s sole property. All right, title, and interest, including any intellectual property rights evidenced by or embodied in, attached, connected, and/or related to the Software and any and all improvements and derivative works thereof are and shall remain owned solely by Company or its licensors. This Agreement does not convey to you any interest in or to the Software other than a limited right to use the Software in accordance with Section 1. Nothing herein constitutes a waiver of the Company’s intellectual property rights under any law.  
If Company receives any feedback  (e.g., questions, comments, suggestions or the like) regarding any of the Software (collectively, “Feedback”), all rights, including intellectual property rights in such Feedback shall belong exclusively to Company and that such shall be considered Company's Confidential Information and you hereby irrevocably and unconditionally transfers and assigns to Company without all intellectual property rights it has in such Feedback and waives any and all moral rights that you may have in respect thereto. It is further understood that use of Feedback, if any, may be made by Company at its sole discretion, and that Company in no way shall be obliged to make use of any kind of the Feedback or part thereof. 
Any anonymous information, which is derived from the use of the Software (i.e., metadata, aggregated and/or analytics information) which is not personally identifiable information (“Analytics Information”) may be used for providing the Software, for development, and/or for statistical purposes. Such Analytics Information is our exclusive property.
10.	Third Party Components. Portions of the Software include third party open source software that is subject to third party terms and conditions ("Third Party Terms"). A list of any third party open source software and related Third Party Terms is available at   https://incredibuild.atlassian.net/wiki/spaces/IUM/pages/477102132/List+of+Open+Sources  as may be updated from time to time. If there is a conflict between any Third Party Terms and the terms of this Agreement, then the Third Party Terms shall prevail but solely in connection with the related third party open source software. Notwithstanding anything in this Agreement to the contrary, Company makes no warranty or indemnity hereunder with respect to any open source software.
11.	 Confidentiality. Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including without limitation trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, and any other information that a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). The Documentation shall be considered as Confidential Information hereunder. Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party's Confidential Information from disclosure to a third party. The receiving party’s obligations under this Section, with respect to any Confidential Information of the disclosing party, shall not apply to and/or shall terminate if such information: (a) was already lawfully known to the receiving party at the time of disclosure by the disclosing party; (b) was disclosed to the receiving party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the receiving party has become, generally available to the public; or (d) was independently developed by the receiving party without access to, or use of, the disclosing party’s Confidential Information. Neither Party shall use or disclose the Confidential Information of the other Party except for performance of its obligations under this Agreement (“Permitted Use”). The receiving party shall only permit access to the disclosing party's Confidential Information to its respective employees, consultants, affiliates, agents and subcontractors having a need to know such information in connection with the Permitted Use, who either (i) have signed a non-disclosure agreement with the receiving party containing terms at least as restrictive as those contained herein or (ii) are otherwise bound by a duty of confidentiality to the receiving party at least as restrictive as the terms set forth herein. The receiving party will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order or a court of similar judicial or administrative body, provided that it notifies the disclosing Party of such required disclosure to enable disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party. 
12.	LIMITED WARRANTIES. The Company represents and warrants that, under normal authorized use, the Software shall substantially perform in conformance with its Documentation. As your sole and exclusive remedy and the Company's sole liability for breach of this warranty, the Company shall use commercially reasonable efforts repair the Software in accordance with the SLA. The warranty set forth shall not apply if the failure of the Software results from or is otherwise attributable to: (i) repair, maintenance or modification of the Software by persons other than the Company or its authorized contractors; (ii) accident, negligence, abuse or misuse of the Software; (iii) factors beyond Company's reasonable control (e.g. any force majeure event, Internet access or related problems beyond Company's reasonable control etc.); (iv) use of the Software other than in accordance with the Software's Documentation; (v) your failure to implement software updates provided by the Company specifically to avoid such failure; (vi) the combination of the Software with equipment or software not authorized or provided by the Company; or (vii) your equipment, software or other technology and/or third party (including the Marketplace's) equipment, software or other technology. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE, ANY REPORTS OR OTHER OUTPUT (THE “REPORTS”) AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS. THE COMPANY DOES NOT WARRANT THAT THE SOFTWARE, THE REPORTS AND/OR THE SERVICES WILL MEET YOUR REQUIREMENTS. EXCEPT AS SET FORTH IN SECTION 8 AND THIS SECTION 12, THE COMPANY EXPRESSLY DISCLAIMS ALL EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, TITLE, NON- INFRINGEMENT, NON-INTERFERENCE, FITNESS FOR A PARTICULAR PURPOSE.
13.	LIMITATION OF LIABILITY. EXCEPT FOR ANY DAMAGES RESULTING FROM ANY BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS HEREIN, AND/OR YOUR MISAPPROPRIATION OR OTHERWISE VIOLATION OF COMPANY'S INTELLECTUAL PROPERTY RIGHTS (INCLUDING MISUSE OF THE LICENSE BY YOU PURSUANT TO SECTION 1);   NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, REPUTATION,  OR PROFITS, DATA, OR DATA USE.
EXCEPT FOR THE COMPANY INDEMNIFICATION OBLIGATION UNDER SECTION ‎14, ANY DAMAGES RESULTING FROM ANY BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS HEREIN, AND/OR DAMAGES RESULTING FROM YOUR MISAPPROPRIATION OR OTHERWISE VIOLATION OF COMPANY'S INTELLECTUAL PROPERTY RIGHTS (INCLUDING MISUSE OF THE LICENSE BY YOU PURSUANT TO SECTION 1); EITHER PARTY’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO THE MARKETPLACE IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM SOLELY FOR THE USAGE OF THE SOFTWARE. "NOTWITHSTANDING THE ABOVE, COMPANY'S AGGREGATE LIABILITY FOR ANY DAMAGES RESULTED FROM ANY TECHNICAL ERROR IN THE SOFTWARE CAUSED BY THE COMPANY SHALL BE LIMITED TO THE AMOUNT PAID BY THE YOU TO THE MARKETPLACE FOR THE SPECIFIC SESSION IN WHICH SUCH ERROR OCCURRED. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. FOR CLARITY, THE LIMITATIONS IN THIS SECTION DO NOT APPLY TO PAYMENTS DUE TO COMPANY UNDER THIS AGREEMENT.
14.	Indemnification. Company acknowledges and agrees to defend, at its expense, any third party action or suit brought against your alleging that the Software, when used as permitted under this Agreement, infringes intellectual property rights of a third party (“IP Infringement Claim”); and the Company will pay any damages awarded in a final judgment against you that are attributable to any such claim, provided that (i) you promptly notifies the Company in writing of such claim; and (ii) you grant the Company the sole authority to handle the defense or settlement of any such claim and provides the Company with all reasonable information and assistance, at Company’s expense. The Company will not be bound by any settlement that you enter into without the Company's prior written consent. 
If the Software becomes, or in the Company's opinion is likely to become, the subject of an IP Infringement Claim, then the Company may, at its sole discretion: (a) procure for you the right to continue using the Software; (b) replace or modify the Software to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot be accomplished despite the Company's reasonable efforts, then the Company may terminate this Agreement. 
Notwithstanding the foregoing, the Company shall have no responsibility for IP Infringement Claims resulting from or based on: (i) modifications to the Software made by a party other than the Company or its designee; (ii) your failure to implement software updates provided by the Company specifically to avoid infringement; or (iii) combination or use of the Software with equipment, devices or software not supplied by the Company or not in accordance with the Documentation. 
This Section states Company's entire liability, and your exclusive remedy, for claims or alleged or actual infringement.
15.	Term and Termination. Unless terminated earlier in accordance with the terms of this Agreement, this Agreement and the license granted herein is effective for the duration of the term set forth in the Market Place Terms.  Either Party may terminate this Agreement with immediate effect if the other Party materially breaches this Agreement and such breach remains uncured fifteen (15) days after having received written notice thereof. Upon termination or expiration of this Agreement: (i) Software  license granted to you under this Agreement shall expire, and you shall discontinue any further use and access thereof; (ii) you shall immediately delete and dispose of all copies of the Documentation, if requested) in your or any of your representatives’ possession or control; and (iii)each party shall return to the other party or destroy any and all Confidential Information then in its possession . The provisions of this Agreement that, by their nature and content, must survive the termination of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive. If applicable, you shall be responsible to download your Customer Data prior to termination of this Agreement.  
16.	 Miscellaneous. This Agreement - including any exhibits referred hereto - represents the complete agreement concerning the subject matter hereof and may be amended only by a written agreement executed by both Parties. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. You may not assign your rights or obligations under this Agreement without the prior written consent of the Company. This Agreement shall be governed by and construed under the laws of the Israel, without reference to principles and laws relating to the conflict of laws. The competent courts of Israel shall have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement. This Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. The Company will not be liable for any delay or failure to provide the Services resulting from circumstances or causes beyond the reasonable control of the Company.
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