CYMBIO TERMS AND CONDITIONS
With these Terms and Conditions (the “Terms“), The Brand agrees to be bound by the following:
- The License
- Subject to the terms herein, the Company hereby grants to the Brand a limited, non-transferable, non-sub-licensable and non-exclusive license for the Term as defined below. (the “License“), to use its Wholesale Management Platform technology and Means of Technology (as defined below), which together enable the Brand to offer to its retailers, department stores, marketplaces and other partners or customers (the “Retailer(s)“) access to the Brand’s products (the “Product(s)“), for sale by the Retailers to their customers (collectively, the “Technology“). For purposes of these Terms, “Means of Technology” means the provision of access to the Technology via various means, such as API, EDI, FTP, files or other.
- All rights pertaining to the Technology and any related software and code, including, but not limited to, intellectual property or similar rights with respect thereto (including but not limited to patents, trademarks, copyrights, service marks, trade names, technology, know how, moral rights and trade secrets), belong exclusively to, and shall remain the sole property of, the Company. The Technology is not being sold to the Brand and the Brand is not granted any right or title in the Technology, other than as set forth.
- The Product Purchase Process
- The Brand shall grant permission for specific Products, to Retailer(s), through the Company’s Technology and according to the Brand’s preference. Retailer(s) shall have access to Products for sale to its customers.
- The Products shall be sold by the Retailer on its platform(s), and the Retailer shall be the merchant of record for the said sale. The purchase order for the Products will be transmitted directly to the Brand via the Technology, and the Brand shall directly supply the Products to the customers, billing, reports, tracking numbers, inventory updates will all be transmitted via the Technology.
- The Brand’s Representations and Warranties
- The Brand hereby represents and warrants that it will not: (i) copy, modify, make available, reverse engineer the Technology, (ii) use the Technology for any illegal, unlawful or unauthorized activities, or for any purpose other than purpose herein.
- The Brand represents and warrants that it owns all intellectual property rights with respect to the Product description and all data which appears on its platforms and websites, and that it is entitled to provide the Company with such information for the purpose of providing the Technology and its services.
- Term and Termination
- These Terms shall be in force and effect commencing on the signing date of the Proposal and shall remain in full force and effect unless terminated in accordance with the terms herein (the “Term“).
- Either party may terminate the engagement between the parties (including these Terms) for convenience upon a prior written notice of 90 days to the other party.
- If either party hereto commits a breach of these Terms or defaults in the performance of any obligation hereunder, and if such default or breach is not corrected within 21 days after the defaulting party has been notified of such breach by a written notice, then the non-defaulting party may, at its option, terminate the engagement between the parties (including these Terms), with an immediate effect.
- Upon the expiration or termination of these Terms, the License shall expire, and the Company shall be entitled to any Consideration due and unpaid at the date of termination. The provisions of Sections 1.2, 3, 4.4 and 5 shall survive the expiration or termination of these Terms.
- Date Protection
The Company here by declares that it is in the process of being GDPR and CCPA compliant and will finalize the process on or prior to March 30th 2020. The signatory parties agree to use, process and secure the personal data they might get as a result of the execution of this contract with their best efforts and according to security protocols.
- Confidentiality. Both The Brand and The Company undertakes to keep any information provided by the Company / The Brand to it and/or the Retailers, and any information relating to the Technology, sales and customers (the “Confidential Information“) in strict confidence and not to disclose it to any third party without the prior written consent of the Company or The Brand; provided, however, that the Brand / the Company may disclose such information to its employees and consultants having a need to know such information in order to carry out the provisions of these Terms. The Brand and Company warrants that any such employees and consultants to which Confidential Information is disclosed will be bound and will abide by terms no less onerous than those contained herein.
- Warranty. The Company does not warrant that the Technology and any services related thereto will be uninterrupted, error-free, or completely secure. The Company does not make, and hereby disclaims, any and all implied warranties, including implied warranties of merchantability, fitness for a particular purpose and non-infringement. The Technology and any services provided pursuant to the Proposal and these Terms is provided on an “as is”, “as available” basis.
- Limitation of Liability. In no event shall the Company be liable for any consequential, incidental, special, indirect or exemplary damages whatsoever, including lost profits, loss of business, loss of revenues, or any other type of damages, whether arising under tort, contract or law. The Company shall not be liable for any claim (of any kind whatsoever) deriving from the Brand’s breach of Section 3 above. The Company’s aggregate liability under the Proposal and these Terms shall be limited to the consideration actually received by the Company under the Proposal and these Terms during the 12 months period prior to the event under which the liability arose.
- Governing Law and Jurisdiction. These Terms shall be governed by, and construed in accordance with the laws of Israel. The parties irrevocably submit any claim or dispute arising out of or in relation to these Terms, to the exclusive jurisdiction of the courts of Tel Aviv-Jaffa, Israel.
- No Waiver. 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.
- Severability. Should any court of competent jurisdiction declare any term of these Terms void or unenforceable, such declaration shall have no effect on the remaining terms hereof.
- Notices. All notices and demands hereunder shall be in writing and shall be served by electronic mail.
- Assignment. These Terms and the rights and obligations hereunder are not transferable, or assignable, by either party without the prior written consent of the other party. However, the Company may assign its rights and obligations to a parent, affiliate or subsidiary company and, in the case of a merger or acquisition, to a successor company upon notice to the Brand.
- No Third-Party Beneficiary. These Terms shall not confer any rights or remedies upon any person other than the parties to these Terms and their respective successors and permitted assigns.
- Complete Agreement. These Terms constitute the full and entire understanding and agreement between the parties with regard to the subject matters hereof and thereof. Any other written or oral agreement relating to the subject matter hereof existing between the parties, is hereby expressly canceled.
Service Level Agreement
Target response time ranges depending on the priority of the case submitted. Below are details and definitions of case priorities and target response times:
- Critical/Business Down – These cases apply to a service so severely impacting Brand or Channel with no acceptable workaround that cannot reasonably continue business operations, features or reports not functioning causing possible data loss, data corruption, or significant financial impact. Brand or Channel reporting these cases should be readily available for additional follow up questions or troubleshooting. Target response time is 8 business hours.
- High – Platform is continuing but there is a serious impact on business operations. Brand or Channel reporting that the Platform is operational with one or more important features unavailable with no acceptable workaround. High priority requests can apply to time sensitive cases or cases that require significant investigation and need to be addressed quickly. Target response time is 12 business hours.
- Medium – Platform is continuing but there is a moderate impact on business operations. Brand or Channel is reporting that the Platform is operational with one or more important features unavailable but there is an acceptable workaround. Medium priority requests can apply to time sensitive cases or cases that require significant investigation and need to be addressed quickly. Target response time is 1 business day.
- Low – Software is operational with problems or errors which have little impact on system operations. There is no time limitation involved and the response will not impact immediate business operations. Low priorities can apply to enhancement requests, questions on best practice, request for more information on a specific feature, spelling or grammar errors, or comments on the software. Target response is 2 business days.