END-USER LICENSE AGREEMENT

SQREAM TECHNOLOGIES LTD. (“SQREAM”) IS WILLING TO LICENSE THE SOFTWARE (AS DEFINED BELOW) TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS END-USER LICENSE AGREEMENT (THE “AGREEMENT“). 

PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE CLICKING ON THE “ACCEPT” BUTTON, IN WHICH CASE YOU WILL BE BOUND BY THIS AGREEMENT. BY CLICKING THE “ACCEPT” BUTTON YOU ALSO WAIVE ANY RIGHTS OR REQUIREMENTS UNDER ANY LAWS OR REGULATIONS IN ANY JURISDICTION WHICH REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW. 

PLEASE BE AWARE THAT DOWNLOAD AND/OR INSTALLATION OF THE SOFTWARE, AS WELL AS USE OF THE SOFTWARE OR PAYMENT OF THE APPLICABLE LICENSE FEE BY YOU, CONSTITUTES ACKNOWLEDGEMENT AND ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND YOUR AGREEMENT TO BE BOUND THEREBY. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DO NOT ACCEPT” BUTTON.

The terms and conditions of this agreement, are entered into as of the date hereof (“Effective Date“), by and between SQream and you (“You” or the “Customer”).

Agreement

In consideration of the foregoing and the mutual promises contained in this Agreement, the adequacy of which consideration is hereby acknowledged, the parties agree as follows:

Definitions.

“Customer Facility” means the location at which the Customer’s Servers are located and the Software shall be installed.

“Order” means any written purchase order delivered by Customer and accepted in writing by SQream. All Orders shall be subject to the terms and conditions of this Agreement. Any provisions included in either party’s form of purchase order, acknowledgment or other business forms will not apply to any Order notwithstanding the other party’s acknowledgment or acceptance of such form. In any conflict or contradiction between the terms of this Agreement and any Order, the terms of this Agreement shall prevail.

“Server/s” means the server unit/s, regardless of platform or operating environment, on which Customer will install and use the Software.

“Services” mean any professional services (including, without limitation, maintenance and support services) regarding the Software, that may be provided from time to time by SQream to Customer in accordance with the terms of this Agreement. 

“Software” means the software identified in Exhibit A attached hereto, including without limitation, any (i) application programming interfaces included in the Software or generated by the Software, which define or provide the external programming requirements or code necessary to interface between the Software and other networks, software, code or operating systems; (ii) documentation and other materials related to the Software and provided to Customer (iii) know-how, inventions, algorithms, procedures, techniques, technologies and solutions, reflected or embedded in the Software; and (iv) improvements, derivative products, updates, upgrades, error-corrections, specifications, customizations or other modifications of the Software, and any work products thereof.  

Licenses.

Grant of License. Subject to Customer’s compliance with the terms and conditions of this Agreement, including without limitation the payment of the applicable License Fee (in accordance with Section 6 below), SQream hereby grants to Customer, during the license period as set forth under the applicable Order, a non-exclusive, non-transferable, non-sublicensable, revocable and limited license to install and use the Software on such number of Servers, and as to such data base size, as set forth in the Order, at the Customer’s Facility, for its personal and internal use only.   

Restrictions. Customer shall not: (i) use the Software at or from any facility other than Customer Facility; (ii) rent, lease, loan, sale, transfer, assign, sub-license, distribute, publicly display, disseminate or otherwise dispose the Software (or any part thereof) to any third party; (iii) copy, duplicate or reproduce the Software or any part thereof; (iv) modify, alter, improve, adapt, make derivative works of the Software (or any part thereof), rearrange, remove from it, add to or insert it or any elements; (v) merge or combine the Software, or any part thereof, with other productions or elements; (vi) disassemble, decompile, or reverse engineer any portion of the Software, or otherwise attempt to discover any source code therefrom; (vii) remove or alter any proprietary notices associated with the Software; or (viii) authorize any third party to do any of the foregoing.

All rights not expressly granted in this Section ‎2 are hereby reserved.  

Services. Customer will provide all cooperation and assistance reasonably requested by SQream to perform the Services.

Maintenance and Support. Services of maintenance and support, during the Term of this Agreement, in accordance with the standard services level agreement of SQream. The applicable License Fee shall include such services of maintenance and support. 

Other Services. During the Term of this Agreement, SQream may provide to Customer with additional Services (other than maintenance and support) as shall be mutually agreed upon by the parties in writing, subject to the payment by Customer of any applicable fees. 

Ownership.  SQream owns and shall retain at all times all right, title and interest, including without limitation all patents, copyrights, trade secrets, trademarks, and other intellectual property and proprietary rights, in and to the Software (or any part thereof). 

Customer shall verify that any SQream’s trademark and/or any other caption identifying the Software with SQream shall be visible and transparent at all times. Customer shall not misrepresent ownership of the software in any way.

Open Source. Certain items of software included with the Software are subject to “open source” or “free software” licenses (“Open Source Software”). Such Open Source Software are listed in Exhibit B attached hereto. Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this Agreement. Instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. 

Fees and payments.  

License Fee.  In consideration for the license granted hereunder and the services of maintenance and support, and as a condition to any use of the Software, Customer will pay to SQream the applicable license fee under either Section ‎6.1.1 or Section ‎6.1.2 below, according to the payment model (i.e. an annual subscription basis or a monthly pay-as-you-go basis) agreed between SQream and Customer and set forth in the applicable Order (in each case, the “License Fee”).

6.1.1 Annual Subscription Basis – to the extent that SQream and Customer agree that Customer will make payments of the License Fee hereunder on an annual subscription basis, as will be set forth in the applicable Order, Customer will pay SQream in advance the annual license fee set forth in the applicable Order, as a condition to any use of the Software.

6.1.12 Monthly Pay-As-You-Go Basis – to the extent that SQream and Customer agree that Customer will make payments of the License Fee hereunder on a monthly pay-as-you-go basis, as will be set forth in the applicable Order, Customer will pay SQream, on a monthly basis, a license fee calculated based on the actual amount of usage of the Software by the Customer (“Monthly Usage Amount”), multiplied by the price per TB set forth in the applicable Order, as a condition to any use of the Software. 

The actual Monthly Usage Amount of Customer in each calendar month will be determined based on the data extracted from the Software with respect to such calendar month. Thus, the Customer hereby undertakes to provide SQream, on a monthly basis and as a condition for the usage of the Software in accordance with this Agreement, with an access to Customer’s servers on which the Software is installed, in order to extract from the Software the relevant data in order to determine the actual Monthly Usage Amount (the “Monthly Usage Check”). Following each Monthly Usage Check, SQream shall invoice Customer for the applicable License Fee due for the applicable Monthly Usage Amount so determined.

Fees for Other Services (other than maintenance and support). In consideration for other Services to be provided by SQream hereunder (other than maintenance and support Services), Customer will pay to SQream the fees set forth in the applicable Order. Unless expressly otherwise agreed by the parties in writing, fees for such other Services provided by SQream shall be invoiced and payable in advance.         

Taxes.  All fees payable under this Agreement are net amounts, exclusive of any sales, value added and other similar taxes. Customer shall exclusively bear all federal, state, or local excise, sales, use, withholding, value-added, or other taxes or duties (except for taxes based on SQream’s net income) arising out of this Agreement.

Except where expressly specified otherwise, all fees payable under this Agreement are non-cancellable and non-refundable. 

Confidentiality.

Customer acknowledges that, in connection with the performance of this Agreement, it may receive or be exposed to certain confidential or proprietary technical and business information and materials of SQream, including, without limitation, information relating to SQream’s products, services, technology, know-how, specifications, designs, formulations, software, equipment, developments and/or working methods, documentation and proprietary technical, financial and business data, and information relating to current, planned or proposed products, business plans, business opportunities, finances, research and development, personnel, contractual and marketing information and relationships, marketing and business plans and forecasts, sales, customers (“Confidential Information”).

Customer shall: (i) hold and maintain in strict confidence all Confidential Information; and (ii) not use any Confidential Information except as permitted by this Agreement or as may be necessary to perform its obligations under this Agreement. Customer will use at least the same degree of care to protect the Confidential Information as it uses to protect its own Confidential Information of like importance, and in no event less than reasonable care. Customer may provide Confidential Information only to those employees who have a need to know for the purposes of using the Software in accordance with this Agreement, and who are bound by a written non-disclosure agreement of at least equal scope to this Agreement. Customer shall not disclose the Confidential Information to any third party, including third party contractors, without written prior authorization from SQream. 

Notwithstanding the foregoing, Confidential Information will not include any information that:  (i) is or becomes generally known or is or becomes part of the public domain through no fault of Customer; (ii) SQream authorizes in writing that shall not be deemed Confidential Information; (iii) is rightfully received by Customer from a third party without restriction on disclosure and without breach of this Agreement; or (iv) is known to Customer on the Effective Date from a source other than SQream that is not subject to the confidentiality obligation to SQream.

Disclaimers; Sole Remedy.  

Disclaimer.  SQREAM PROVIDES THE SOFTWARE “AS IS”, WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. SQREAM DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES REGARDING SUITABILITY FOR USE WITH THIRD PARTY PRODUCTS OR PERFORMANCE OF THE SOFTWARE, ARE ALL EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW.  SQREAM DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE WITHOUT INTERRUPTION OR ERROR FREE.  THE FOREGOING DISCLAIMERS WILL APPLY EVEN IF ANY WARRANTY PROVIDED UNDER THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.

Limitation on Liability. IN NO EVENT WILL SQREAM BE LIABLE FOR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE OR FOR ANY ERROR OR DEFECT IN THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM A CLAIM BASED UPON CONTRACT, TORT OR OTHERWISE, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.  IN NO EVENT WILL SQREAM’S LIABILITY TO CUSTOMER IN ANY ACTION RELATING TO OR ARISING FROM THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID HEREUNDER TO SQREAM WITHIN THE ONE-YEAR PERIOD PRECEDING THE EVENT LEADING TO LIABILITY.  THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. 

Term and Termination.

Term.  This Agreement will commence on the Effective Date and will continue unless terminated as provided in this Section ‎10 (the “Term“); provided for the avoidance of doubt, that the termination or expiration of this Agreement will not affect any Orders entered with the Customer prior to the termination or expiration of this Agreement (“Existing Orders”). Such Existing Orders shall remain in effect until the lapse of their respective license periods (including during any renewal periods thereof), and the terms of this Agreement shall continue to apply for so long as such Existing Orders are in effect in accordance with their respective license periods (including during any renewal period thereof).  

Termination.  Subject to the provisions set forth under section ‎6.4, Customer may terminate this Agreement for convenience upon 30 days written notice to SQream. Without derogating from any other remedy that SQream may be entitled to under any applicable law, SQream may immediately terminate this Agreement and the license granted hereunder and/or to immediately repossess the Software, all without any liability towards Customer, if Customer breaches this Agreement, including but not limited by failing to pay any fees hereunder when due, and fails to cure such breach within 7 days’ written notice.    

Effect of Termination.  Upon any termination or expiration of this Agreement, the rights and licenses granted to Customer under this Agreement will automatically terminate and all outstanding fees will immediately become due and payable.  Upon such termination, Customer shall immediately cease using the Software, and promptly erase it from its computers and certify in writing to SQream that the Software and all related materials (including any Confidential Information) have been destroyed and are no longer in use. The provisions of Sections 2, 4, 5, 6, 7, 8, 9, 10.3, 11 and 12 will survive any termination or expiration of this Agreement.

Compliance with Export Control Laws. Customer acknowledges that Software is subject to the export control laws and regulations of Israel and the United States and agrees to abide by those laws and regulations as such may change from time to time.

Miscellaneous.

Entire Agreement. This Agreement is the entire and exclusive agreement of the parties with respect to the subject matter hereof, supersedes all prior written or oral understandings relating thereto, and shall survive the expiration or termination of any other agreement between the parties. This Agreement may not be modified except by a written instrument signed by a duly authorized representative of each party hereto.

In the event of invalidity of any provision of this Agreement, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement, and further agree to substitute for such invalid provision a valid provision that most closely approximates the intent and effect of the invalid provision. Any failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof.

Authorization; Compliance with Laws.  The parties represent and warrant that each party has all requisite corporate power and authority to enter into this Agreement and perform its obligations hereunder. Each party will comply with all laws and regulations applicable to its activities under this Agreement. 

Independent Contractors. The parties expressly agree that they are independent contractors and do not intend for this Agreement to be interpreted as an agency, joint venture or partnership relationship between the parties. Neither party’s waiver of the breach of any provision shall constitute a waiver of the provision in that or any other instance.

Assignment. Customer may not assign this Agreement, in whole or in part, without SQream’s prior written consent.  SQream shall be entitled to assign it obligations under this Agreement at any time upon prior notice to Customer, provided that Customer’s rights under this Agreement shall not be prejudiced.

Publicity. SQream may use Customer’s logo to identify Customer as a customer of SQream in SQream’s promotional materials and website.

Feedback. It is clarified that SQream shall be the sole and exclusive owner of all rights in connection with any and all ideas, inventions and/or improvements (whether patentable or not) conceived or derived or result from, or relate to, directly or indirectly, any feedback, insight or input (written or oral) provided by Customer to SQream regarding the Software and/or its experience while using the Software.  

Equitable Relief.  Each party acknowledges that a breach by the other party of Sections ‎2, 4 or 6 of this Agreement would cause the non-breaching party irreparable harm, for which the award of damages would not be adequate compensation.  Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and either party may obtain an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.  

Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the state of Israel, Israel, excluding any conflict of laws provisions, and the competent courts of Tel Aviv – Jaffa shall have exclusive jurisdiction over all matters arising under or relating to this Agreement.

Notices.  Any notice required or permitted to be sent under this Agreement shall be (i) in writing and shall be personally delivered or sent by certified mail, return receipt requested, postage prepaid, to the addresses set forth above or to such other address as provided in writing, and shall be deemed to have been received upon the earlier of actual receipt or 5 days after deposit in the mail; or (ii) sent by facsimile or email and deemed to have been received on the date of the facsimile or email confirmation if a copy of the notice is sent by certified mail (and postmarked on the date of facsimile transmission) in accordance with subsection (i) above.