M.S.A.O SERVICE AGREEMENT
This Service Agreement (the/this "Agreement") is made and entered into by and between MSAO Technologies Ltd, An Israel Based Company, ("MSAO", "we", "us", or "our") and you, the Merchant ('Merchant", "you", or "your") and shall become effective as of the date on which you agree to be bound by all the terms and conditions of this Agreement by your clicking on the "Agree" button on the terms of Service page , by clicking "Agree" on an independent portal while uploading the MSAO software application, or by clicking "Agree", "Accept", or any other similar acknowledgement on a MSAO hosted portal. MSAO and Merchant will also be referred to herein as a "party", individually and as the "parties", collectively.
WHEREAS, MSAO, developed and owns a proprietary process/platform (the "Process") via which merchants may advertise their respective products and services on Facebook and Instagram websites or applications and on Google search engine, as well as other social media platforms, together the ("Platforms"); and
WHEREAS, MSAO, is a provider of such service under various web portals ("Portal") to the portal’s users (“end users”)
WHEREAS, the Process entails certain services developed, owned, and proprietary to MSAO, which services are described more fully below;
WHEREAS, you desire to license from MSAO and use the Process and, thus, the Services in accordance with this Agreement;
WHEREAS, MSAO Agreement. Desires to provide you with a license to use the Process andthe Services in accordance with this
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. The Recitals hereof are deemed to be part of the terms and conditions of this Agreement.
2. MSAO's Process and Services; Merchant License; MSAO's Ownership of Process and Services
a. Process and Services. MASO has developed and owns a proprietary software analytic program that creates, manages and optimizes different advertising campaigns ("campaigns") in a fully automated and autonomic manner. Merchants enter all the relevant information required in the portal. Information is received by the process and advertising campaigns are created accordingly on the selected platforms. Campaigns are managed and optimized by the process that also provides the ability to watch analytic reports displaying information form the campaigns created.
In order to provide this service, MSAO has an agreement with the platforms, separate from this Agreement, allowing merchants to enjoy the services via the MSAO's Process.
In light of foregoing, this Agreement will use the term "Process" when referring to both the Services and the Process. Furthermore, reference to the "Process" shall mean the entire Process and any part thereof, even if "and any part thereof" is not expressly stated in any given context herein.
MSAO reserves the right to update or modify or discontinue all or any part of the Process at any time without any advance notice to you. MSAO will notify you as provided for herein of any such update, modification, or discontinuance within a reasonable time of the given occurrence.
You agree that you are fully responsible for uploading any updates or modifications of any part of the Process in order to access any such updates or modifications.
In the event that at any time in the future, MSAO makes its Process available via one or more social media websites in addition to the platforms , and this Agreement is still in full force and effect with you, then you shall be able to license and use the Process via said other social media website(s); and all the terms and conditions of this Agreement shall apply with regard to the Process being available and your licensing and using the Process via said other social media website(s).
b. Ownership. The Process is licensed and not sold. MSAO reserves all rights not expressly granted to you in this Agreement. The Process is, or may be, protected by patent, copyright, trademark, trade secret and other intellectual property laws. MSAO owns the title, copyright and other worldwide Intellectual Property Rights (as defined below) in the Process and all copies of the Process. This Agreement does not grant you any rights to MSAO's trademarks or service marks.
For the purposes of this Agreement, "Intellectual Property Rights" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefor and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
You may choose to or we may invite you to submit comments or ideas about the Process, including without limitation about how to improve the Process ("Ideas"). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited, and without restriction, that it will not place MSAO under any fiduciary or other obligation, and that we are free to use the Idea without any compensation to you for such Idea, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. MSAO is free to decide not to use the Idea. You further acknowledge that, by acceptance of your submission, MSAO does not waive any rights to use similar or related ideas previously known to MSAO, or developed by its employees, or obtained from sources other than you.
c. Merchant License. All that you acquire under this Agreement with regard to the Process is a personal, limited, non-exclusive, revocable, non-transferrable, and non-assignable license, without the right to sub-license, to use the Process in accordance with this Agreement for as long as this Agreement remains in full force and effect with you.
You may not, nor may you permit any third party to do any of the following: (i) access or monitor any material or information on any MSAO system using any manual process or robot, spider, scraper, or other automated means unless you have separately executed a written agreement with MSAO that expressly grants you an exception to this prohibition; (ii) copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way the Process or any part thereof or any other material or information, if any, from MSAO; (iii) permit any third party to use and benefit from the Process or any part thereof via a rental, lease, timesharing, service bureau or other arrangement; (iv) transfer or assign any rights granted to you under this Agreement; (v) violate the restrictions in any robot exclusion headers on the Process or any other MSAO service or product, if any applicable hereunder; (vi) work around, bypass, or circumvent any of the technical limitations of the Process, use any tool to enable features or functionalities that are otherwise disabled in the Process, or decompile, disassemble or otherwise reverse engineer the Process, except to the extent that such restriction is expressly prohibited by law; (vi) perform or attempt to perform any actions that would interfere with the proper working of the Process, prevent access to or use of the Process by our other clients, or impose an unreasonable or disproportionately large load on our infrastructure; or (vii) otherwise use the Process except as expressly allowed under this Agreement.
3. Requirements on Merchant's Part; Restricted Use of the Process
In order to begin using the Process, in addition to your agreeing to be bound by all the terms and conditions of this Agreement by your clicking on the "Agree" button on MSAO's Website, or by clicking "Agree" on an independent portal while uploading the MSAO software application, you must contemporaneously provide to MSAO your email address and telephone number and a physical address, if one. You are responsible for keeping such contact information current at all times.
You shall not resell or try to resell the Process or any part thereof to any third party. If you do so try to make any such resale, this Agreement shall be deemed automatically terminated immediately without the need for any notice to be given to you.
Additionally, you agree not to advertise or try to advertise or engage in or try to engage in, as the case may be, (1) any illegal activity or goods or services, (2) any internet/mail order/telephone order pharmacies or pharmacy referral services (where fulfillment of medication is performed with an internet or telephone consultation, absent a physical visit with a physician including re-importation of pharmaceuticals from foreign countries), (3) any gambling or related products or services; (4) any adult entertainment oriented products or services; including, without limitation any escort services; (5) any firearms, firearm parts or hardware, and ammunition or any other weapons and other devices designed to cause physical injury (6) any drugs or any drug paraphernalia, (7) any hate or harmful products or services; or (8) any activity involving moral turpitude.
If you advertise or try to advertise any of the products or services listed in the immediately preceding paragraph or engage in or try to engage in any of the activity set forth in the immediately preceding paragraph, this Agreement shall be deemed automatically terminated immediately without the need for any notice to be given to you. Furthermore, if any such termination is a result of your unlawful/illegal action or failure to act, you hereby give MSAO express permission to share such information with appropriate law enforcement authorities.
You further agree to abide by the platforms policies and any other social media's respective policies, if applicable, with regard to your use of the Process via the platforms and any other social media, if applicable.
4. Pricing and Fees; Refunds
All payment, Fees and Refunds will be done via the portal and according to the portals terms and conditions. It is clarified that MSAO is and will not liable for any issues involving pricing, fees and payments that were charged / paid or any refunds related issue. By approving these terms of service, you acknowledge that: (i) all related aspects in this section are being handled solely by the portal and according to the portals terms and condition and (ii) that you will not have any claim against MSAO relating any financial issue, even if not mentioned explicitly in this section.
As noted in Section 2, above, MSAO reserves the right to discontinue any part or all of the Process at any time without any advance notice to you. MSAO will notify you as provided for herein of any such discontinuance within a reasonable time of the given occurrence.
If MSAO should discontinue the entire Process, this Agreement shall be deemed automatically terminated immediately; in such cases, as mentioned above, if any refund is due it will be handled solely by the portal and MSAO will not be a side to such case
If MSAO should discontinue one or more parts of the Process, such discontinuance shall not adversely affect the continued effectiveness of this Agreement; and you agree that you shall not receive any refund whatsoever with regard to any such partial discontinuance.
5. Term and Termination;
a. Term. This Agreement shall become effective as of the date on which you agree to be bound by all the terms and conditions of this Agreement by your clicking on the "Agree" button on MSAO's Website, or click "Agree" on an independent portal while uploading the MSAO software application. This Agreement shall continue in full force and effect unless and until it is terminated as set forth in this Section 5 or as expressly stated elsewhere in this Agreement.
b. Termination. In addition to and without limiting any other termination rights set forth elsewhere in this Agreement, you may terminate this Agreement immediately by written notice upon the occurrence of any of the following events:
(i) If MSAO ceases to do business, or otherwise terminates its business operations; or,
(ii) If MSAO becomes insolvent or seeks protection under any bankruptcy, receivership, insolvency or comparable proceeding, or if any such proceeding is instituted against such party.
In addition to and without limiting any other termination rights set forth elsewhere in this Agreement, MSAO may terminate this Agreement immediately by written notice upon the occurrence of any of the following events:
(i) If you cease to do business, or otherwise terminates its business operations; or,
(ii) If you become insolvent or seek protection under any bankruptcy, receivership, insolvency or comparable proceeding, or if any such proceeding is instituted against such party; or
(iii) if the you breach any material provision of the Agreement (including, without limitation, Merchant's breach of its obligation to pay the License Fee or the Administrative Fee, or any other monies, if any, due to MSAO under this Agreement) and fails to fully cure such breach within 10 days of written notice describing such breach or as soon thereafter as commercially practicable if, given the nature of the default, such default cannot be cured within 10 days. Default by Merchant of its obligation to pay the required fees hereunder shall be deemed curable within 10 days of notice of such default from MSAO.
In addition to and without limiting the termination rights set forth directly above this paragraph or any other termination rights set forth elsewhere in this Agreement, either party may terminate this Agreement upon 30 days' advance notice to the other party.
Upon termination of this Agreement under this Section 5 or under other termination provisions of this Agreement, MSAO shall immediately terminate Merchant's access to the Process.
MSAO shall not be liable to you or any third party for termination or suspension of your access to the Process or for deletion of your information from MSAO's Process.
Except as expressly stated in Section 4 regarding MSAO's complete discontinuance of the Process (meaning MSAO will no longer provide the Process at all), we will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Process or any part thereof, or in connection with any termination or suspension of the Process or any part thereof. Any termination of this Agreement does not relieve you of any obligations to pay any fees accrued prior to the termination and any other amounts, if any, owed by you to us as provided in this Agreement.
The termination rights set forth in this Section 5 and elsewhere in this Agreement are in addition to any other remedies available to either party at law or in equity.
6. Customer Service and Technical Support
Any inquiry, technical support or any other issues that could arise from the process will be addressed solely to the Portal's customer support and will be handled according to their terms of service and service letter agreement.
7. Your Privacy
8. Privacy of Others; Confidentiality and Non-Disclosure
In the performance of this Agreement, each party hereto may obtain, have access to, or develop certain information, which is considered by such party to be proprietary and confidential, which is not generally known other than by such party, and which provides commercial advantage to such party and which information includes, without limitation, information about a party's business operations or financial condition and a party's Trade Secrets (defined below) (collectively, the "Confidential Information"). With regard to the exchange of or access to Confidential Information hereunder, MSAO and Merchant each shall be a "receiving party" and a "disclosing party", depending upon whether MSAO or Merchant owns the particular Confidential Information.
Third Party Information. Each party understands that the other party has received or may receive and in the future will receive or may receive from third parties confidential or proprietary information ("Third Party Information") subject to a duty on each party as the recipient of Third Party Information to maintain the confidentiality of such information and to use it only for certain limited purposes. During the term of this Agreement and thereafter, the receiving party will hold Third Party Information in the strictest confidence and will not disclose any third Party Information to anyone, except as expressly set forth below in this Section 8.
"Trade Secrets" means information, without regard to form, including, but not limited to, technical or non-technical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which is not commonly known by or available to the public and which information:
(i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other individuals or entities who can obtain economic value from its disclosure or use; and
(ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality.
"Confidential Information" shall not include any information:
- that was in the public domain prior to the date of this Agreement or subsequently came into the public domain through no act or omission or fault of the receiving party, or that was in the public domain at the time of disclosure to the receiving party;
- that was lawfully disclosed to the receiving party by a third party having the independent right to disclose such information and, at the time of such disclosure, such third party was not known by the receiving party to be under any obligation of confidence to the disclosing party;
- that was already known to the receiving party prior to and at the time of disclosure to the receiving party by the disclosing party or by a third party on behalf of and at the direction of the disclosing party, as evidenced by written documents in the receiving party's possession at the time of disclosure;
- that is subject to a requirement by or under the law, as such situation is described more fully later in this Section 10, which description, among other things, sets forth the process for such disclosure by the party being so compelled to make such disclosure; and
- that is independently developed by employees, consultants, agents, affiliates, or the like of the receiving party without any reliance upon or reference to the disclosing party's Confidential Information, which by definition herein includes Confidential Information and Trade Secrets, as such terms are defined herein.
Each party hereto shall bear the burden of showing that any of the foregoing exclusions applies to any information or materials of such party.
Neither party hereto shall, without the disclosing party's prior written permission, use for any purposes, unless it is in connection with this Agreement, or reveal or make available to any individual or entity any Confidential Information of a disclosing party or any Third Party Information, unless such use or disclosure is legally required to be disclosed, provided that the party subject to such requirement promptly provides, if allowed by law, written notification to the party owning such Confidential Information or to the owner of any such Third Party Information of such requirement so that such owner may obtain a protective order, seek any other appropriate remedy available at law or in equity, and/or waive compliance with this confidentiality provision specifically and solely with regard to the subject of this paragraph, meaning that any such waiver will be limited to and apply only with regard to the subject of this paragraph. In the event that such protective order or other remedy is not obtained, and/or regardless of whether or not the owner of the Confidential Information or Third Party Information waives compliance with this confidentiality provision, the party who is subject to such legal disclosure requirement, agrees to disclose only that portion of the information of the owner of the subject Confidential Information or Third Party Information which the party subject to such requirement of disclosure is advised by written opinion of counsel is legally required to be disclosed and agrees to exercise best efforts to obtain assurances that confidential treatment will be accorded such information.
Each party hereto shall limit access to the Confidential Information of the other party hereto and shall limit access to Third Party Information to the receiving party's employees, officers, directors, agents, affiliates, joint ventures, independent contractors, representatives, and advisors (collectively the "Representatives") to whom disclosure is necessary for the performance of this Agreement and who have been informed of and agree to be bound by the obligations of confidentiality and non-disclosure set forth in this Section 8. Notwithstanding any given Representative's agreement to be bound by this Section 8 the parties hereto agree to be responsible for any breach by their respective Representatives of the confidentiality and non-disclosure obligations.
Neither party hereto shall disclose the terms of this Agreement or business, financial, technical, pricing or other information about the other party hereto that the other party hereto has made known is or would be understood by a reasonable business individual or entity to be of a confidential nature.
The parties hereto acknowledge and agree that remedies at law for any actual or threatened breach by a party hereto of the terms, conditions, and/or covenants contained in this Section 8 would be inadequate and that the complaining party shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this Section 8 in addition to all other appropriate remedies available to the complaining party at law or in equity.
The parties hereto agree that neither of them (other than as explicitly provided herein) will, at any time during the term of this Agreement or after the termination of this Agreement, use, reveal or divulge any Trade Secrets concerning the other party hereto for as long as such information qualifies as Trade Secrets. Further, the parties hereto agree that, for a period of three (3) years from the Effective Date of this Agreement, and other than as explicitly provided herein, neither party hereto will use, reveal or divulge any Confidential Information (which does not constitute a Trade Secret under applicable law) concerning the other party hereto.
The receiving party's obligations with regard to Third Party Information shall commence upon the receiving party's initial receipt of the Third Party Information and shall extend with regard to all Third Party Information until two (2) years after the disclosing party's confidentiality duties regarding a particular item of Third Party Information expire. Thereafter, the receiving party's obligations hereunder shall survive and continue in effect with respect to any Third Party Information that is a Trade Secret or is otherwise protected for a longer period of time under applicable law. The receiving party shall be responsible for contacting disclosing party's corporate counsel to determine whether a particular item of Third Party Information is still protected under a confidentiality or non-disclosure agreement to which disclosing party is a party.
9. Disclosures and Notices
You agree that MSAO can provide disclosures and notices required by law and other information about or related to this Agreement, including, without limitation, any notice of default by you with regard to this Agreement or any notice of termination of this Agreement, to you electronically by posting it on our website, or by emailing it to you at the email address you provided contemporaneously with your clicking on "Agree" to the terms and conditions of this Agreement. You also agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies. Such disclosures and notices are considered received by you within 24 hours of the time posted to our website, or within 24 hours of the time emailed to you unless we receive notice that the email was not delivered.
In connection with the process rendered to you by MASO you may upload photos, logos, text, products, and other materials or information ("Seller Content"). You agree that you will not upload Seller Content to the process unless you have created that content yourself, or you have permission from the copyright owner to do so and that it’s according to the terms and conditions requirement of the platform that you chose to advertise on.
For any Seller Content that you upload to the process, you grant us and our subsidiaries, affiliates, and successors a worldwide, non-exclusive, royalty-free, fully-paid, transferable, and sub-licensable right to use, reproduce, modify, adapt, publish, prepare derivative works of, distribute, publicly perform, and publicly display that Seller Content throughout the world in any media in order to provide and promote the Services and MSAO's business. You retain all rights in your Seller Content, subject to the rights granted to MSAO in this Agreement. You may modify or remove your Seller Content via your MSAO Account or by terminating your MSAO Account.
You agree not to upload or otherwise post, transmit, distribute, or disseminate through the Services any material that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory; (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (c) breaches any duty toward or rights of any person or entity, including rights of publicity, privacy or trademark; (d) contains corrupted data or any other harmful, disruptive, or destructive files; (e) advertises products or services competitive with MSAO's or its partners' products and services, as determined by MSAO in its sole discretion; or (f) in MSAO's sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Services, or which may expose MSAO, its affiliates, its customers, or Buyers to harm or liability of any nature.
Although MSAO has no obligation to screen, edit, or monitor any Seller Content, MSAO reserves the right, and has absolute discretion, to remove, screen, edit, or disable any Seller Content at any time and for any reason without notice. You understand that by using the Services, you may be exposed to Seller Content that is offensive, indecent, or objectionable. We take no responsibility and assume no liability for any Seller Content, including any loss or damage to any of your Seller Content.
If you choose not to upload any content you hereby providing your full consent and agree that the process will automatically retrieve (i) seller content that was already published by you from the relevant platform account, if applicable, or alternatively (ii) seller content from a source that that provides usage of such content free of charge and without any limitations.
11. Copyrights and intellectual property Infringement
MSAO respects Copyrights and Intellectual Property Rights of others and asks you to do the same. It is hereby clarified that MSAO will not be liable for any claim from a third party on such infringements. You are herby acknowledge that such liability will be solely bared by you and that you will indemnify MSAO on any such claim according to the indemnification clause in this agreement.
We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
You will indemnify, defend, and hold us and our officers, directors, employees, shareholders, affiliates, subsidiaries, suppliers, agents, successors and assigns harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys' fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of our policies or the platforms policies or any other social media's respective policies, if applicable; (b) your wrongful or improper use of the Process; (c) any sales made by you via the Process (including without limitation the accuracy of any information that you provide or any claim or dispute arising out of products or services offered or sold by you); (d) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (e) your violation of any law, rule or regulation of the state of Israel; (f) any other party's access and/or use of the Process with your unique name, password or other appropriate security code.
14. Representation and Warranties
You represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you are eligible to register and use the Process and have the right, power, and ability to enter into and perform under this Agreement; (c) the name identified by you with regard to your licensing and using the Process is your name or your business name, if one, under which you sell products and/or services; (d) you and all sales by you will comply with all laws, rules, and regulations applicable to you and/or your business, including any applicable tax laws and regulations; (e) you will not use the Process, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Process; (f) your use of the Process will be in compliance with this Agreement; and (g) your entering into this Agreement does not violate any other agreements under which you are obligated or create any conflict of interest for you.
15. No Warranties
THE PROCESSIS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE PROCESS IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PROCESS IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MSAO, ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, SUPPLIERS, AFFILIATES, SUBSIDIARIES, AGENTS, REPRESETATIVES, SUCCESSORS, OR ASSIGNS, OR VIATHE PROCESS WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, MSAO, ITS SUPPLIERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, SUBSIDIARIES, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS (AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, SUPPLIERS, REPRESENTATIVES, SUBSIDIARIES, AFFILIATES, SUCCESSORS, AND ASSIGNS) DO NOT WARRANT THAT THE PROCESS IS ACCURATE, RELIABLE OR CORRECT; THAT THE PROCESS WILL MEET YOUR REQUIREMENTS OR DESIRES OR EXPECTATIONS; THAT THE PROCESS WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE PROCESS IS OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS AT ANY GIVEN TIME. ANY CONTENT OR DATA DOWNLOADED OR OTHERWISE OBTAINED, IF ANY, VIA THE USE OF THE PROCESS IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM ANY SUCH DOWNLOAD.
MSAO, ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, SUPPLIERS, AFFILIATES, SUBSIDIARIES, AGENTS, REPRESETATIVES, SUCCESSORS AND ASSIGNS DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY VIA THE PROCESS OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND MSAO, ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, SUPPLIERS, AFFILIATES, SUBSIDIARIES, AGENTS, REPRESETATIVES,SUCCESSORS AND ASSIGNS WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
16. Limitations of Liability and Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MSAO, ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, SUBSIDIARIES, AGENTS, REPRESENTATIVES, SUPPLIERS, SUCCESSORS, OR ASSIGNS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE PROCESS. UNDER NO CIRCUMSTANCES WILL MSAO, ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, SUBSIDIARIES, AGENTS, REPRESENTATIVES, SUPPLIERS, SUCCESSORS, OR ASSIGNS BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE PROCESS OR YOUR INFORMATION PROVIDED TO MSAO IN CONNECTION WITH THIS AGREEMENT OR MADE AVAILABLE VIA TH E PROCESS ON FACEBOOK OR OTHER SOCIAL MEDIA WEBSITES, IF ANY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MSAO, ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, SUBSIDIARIES, SUPPLIERS, AGENTS, REPRESENTATIVES, SUCCESSORS, AND ASSIGNS ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF THE PROCESS; (II) PERSONAL INJURY OR DEATH OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE PROCESS; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE PROCESS; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE PROCESS BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR DATA OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR DATA POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE PROCESS; AND/OR (VII) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL MSAO, ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, SUBSIDIARIES, SUPPLIERS, AGENTS, REPRESENTATIVES, SUCCESSORS, OR ASSIGNS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE PROCESS DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF MSAO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
17. Third Party Products
All third party hardware and other products included or sold with the Process, if any, are provided solely according to the warranty and other terms specified by the given manufacturer, who is solely responsible for service and support for its product and services. For service, support, or warranty assistance, you should contact the given manufacturer directly. MSAO, ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, SUBSIDIARIES, AGENTS, REPRESETATIVES, SUCCESSORS, AND ASSIGNS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD PARTY PRODUCTS, AND EXPRESSLY DISCLAIM ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL MSAO, ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, SUBSIDIARIES, AGENTS, REPRESETATIVES, SUCCESSORS, OR ASSIGNS BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR COVER DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THIRD PARTY PRODUCTS OR ANY AMOUNT IN EXCESS OF THE AMOUNT PAID BY YOU FOR THE PRODUCT THAT GIVES RISE TO ANY CLAIM.
If a dispute of any kind arises, we want to understand and address your concerns quickly and to your satisfaction. Please contact MSAO via the portal's support with any dispute. If we cannot resolve your concerns, we agree to an informal and inexpensive dispute resolution process requiring individual arbitration.
19. Binding Individual Arbitration
You and MSAO agree to arbitrate all disputes. Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. ANY ARBITRATION UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED, AND YOU ARE WAIVING YOUR RIGHTS TO PARTICIPATE IN A CLASS ACTION AGAINST MSAO. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be class arbitration). All Disputes shall be resolved finally and exclusively by binding individual arbitration with a single arbitrator that will be selected by the Israeli Institute of Commercial Arbitration.
20. Governing Law and jurisdiction
This Agreement and any dispute will be governed by the Israeli law as applied to agreements entered into and to be performed entirely within Israel with the jurisdiction of the relevant court in the district of Tel Aviv.
21. Limitation on Time to Initiate a Dispute
Unless otherwise required by law, an action or proceeding by you relating to any dispute must commence within one year after the cause of action accrues.
22. Right to Amend
We have the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Process with notice that we in our sole discretion deem to be reasonable in the circumstances, including such notice on our website or any other website maintained or owned by us for the purposes of providing the Process or other services, if any, under this Agreement. Any use of the Process after our publication of any such changes shall constitute your acceptance of this Agreement as modified. However, any dispute that arose before the modification shall be governed by the Agreement (including the binding individual arbitration clause) that was in place when the dispute arose.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned and transferred by MSAO without restriction.
24. Third Party Services and Links to Other Web Sites
25. Other Provisions
a. This Agreement, including all exhibits hereto, contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, between the parties hereto with respect to the subject matter hereof.
b. In the event of a conflict between this Agreement and any other MSAO agreement or policy, this Agreement shall prevail on the subject matter of this Agreement.
c. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. If any such invalid or unenforceable provision cannot be so changed as aforesaid, then, such provision shall be deemed stricken herefrom, with the remainder to this Agreement remaining in full force and effect.
d. Headings and numbering are included for convenience only, and shall not be considered in interpreting this Agreement.
e. The Agreement does not limit any rights that MSAO may have under trade secret, copyright, patent, or other laws.
f. MSAO's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
g. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
h. MSAO is not responsible for its failure to fulfill any of its obligations pursuant to this Agreement due to any cause beyond its reasonable control.
In addition to any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement, the following sections of this Agreement survive and remain in effect in accordance with their terms upon the termination of this Agreement: 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 , and 27.
27. Certain Definitions
"Dispute" or "dispute" means any claim, controversy, or dispute (whether involving contract, tort, equitable, statutory, or any other legal theory) between you and MSAO including but not limited to any claims relating in any way to this Agreement (including its breach, termination, or interpretation), any other aspect of our relationship, and any use of the Process or MSAO's other services, if any. "Dispute" or "dispute" also includes any claims that arose before this Agreement and that may arise after termination of this Agreement.
"MSAO" means MSAO, its officers, directors, employees, shareholders, affiliates, subsidiaries, suppliers, agents, successors, and assigns.
This definition section is not exhaustive. Other terms are defined elsewhere in this Agreement.
28. Force major
neither party shall be liable for any failure to perform its obligations hereunder where and such failure results from any cause beyond such party’s reasonable control, including without limitation: if one or several third parties change their offerings or terms or no longer offer their services to you or to MSAO at reasonable terms; denial of service attacks; acts of God; acts of war; acts of terrorism; labor disruptions; and any laws, orders, rules, regulations, acts, or restraints of any government or governmental body or authority, civil or military y, including the orders and judgments of courts.
MSAO may contain links to third-party websites. MSAO is not responsible for the information practices or the content of such third-party websites. We encourage you to review the privacy policies of third-party websites to understand their information practices.
Automatic information, such as computer sign-on data, browser type, browser language, statistics on page views, traffic to and from our user interfaces and ad data is stored within the MSAO system. Like many websites, we use identifiers such as "cookies" and Web beacons to obtain this automatic information.
MSAO protects online individually identifiable information as follows:
MSAO will not sell, trade or disclose to third parties any individually identifiable information derived from the registration for or use of a MSAO online service without the consent of the customer (except as required by subpoena, search warrant or other legal process or in the case of imminent physical harm to the customer or others). When MSAO uses other agents, contractors or companies to perform services on its behalf, MSAO will endeavor to reasonably ensure that the company protects your individually identifiable information consistent with this policy. If MSAO includes your name and any other individually identifiable information in a directory that MSAO creates from information we receive as an online service provider, the company will give you the opportunity to have your information excluded from that directory. Business directories that MSAO creates may, however, contain similar information obtained from other sources.
MSAO will collect and use individually identifiable information for billing purposes, to anticipate and resolve problems with your service, or to create and inform you of products and services that better meet your needs. This means that MSAO may use your individually identifiable information to market new services to you that we think will be of interest to you, but we will not disclose your individually identifiable information to third parties who want to market products to you without your prior consent.
A customer may choose not to receive direct marketing communications from MSAO or its affiliates or customers in connection with MSAO online services. Upon such choice, MSAO (a) will not contact that customer directly with marketing messages about MSAO online services, and (b) will not use individually identifiable information obtained from that customer's registration for use of an online service to contact that customer with marketing messages about any MSAO products or services. A customer may choose not to receive such messages by e-mail, by mail or by telephone.
Individually identifiable information that a visitor volunteers at one of the MSAO Web sites or the portal to order MSAO services, or the services of MSAO affiliates, other than online services, will be protected just as if the information had been provided under more traditional ways of ordering that service.
MSAO may use third party service providers to provide certain services to you and we may share personal information with such service providers. We require any company with which we may share personal information to protect that data in a manner consistent with this policy and to limit the use of such personal information to the performance of services for MSAO.
MSAO servers automatically gather information about which sites customers visit on the Internet and which pages are visited within a MSAO Web site. The company does not use that information except in the aggregate.
We do not store the following information in the regular course of our business: credit card information and billing addresses.
As part of your registration on our Website to use the Products or Services, our Website, you agree that you may receive certain administrative communications from us, such as administrative announcements and customer service messages regarding Products or Services and products during the period that we provide Products or Services to you. You may not opt out of receiving such administrative communications.
MSAO has implemented technology and security features that meet or exceed industry standards, and has adopted strict policy guidelines to safeguard the privacy of your individually identifiable information from unauthorized access or improper use, and we will continue to enhance our security procedures as new technology becomes available.
The company will not read or disclose to third parties private e-mail communications that are transmitted using MSAO services except as required to operate the service or as otherwise authorized by law.
MSAO may use individually identifiable information to investigate and help prevent potentially unlawful activity or activity that threatens the network or otherwise violates the customer agreement for that service.
MSAO honors requests from customers for account information, such as name, address, or billing information, and will correct any such information that is inaccurate. Customers may verify that appropriate corrections have been made.
ADDITIONAL PRIVACY PROTECTIONS FOR CHILDREN USING THE INTERNET
MSAO joins the industry in recognizing that children, including young teens, may not be in a position to make informed choices about personal information requested online.
Accordingly, MSAO does not target children or teenagers (younger than 18) for collection of information online. MSAO does not solicit or collect individually identifiable information targeted at children and teenagers under 18 and does not allow anyone else to do so on a MSAO Web site. In addition, on all of its online services and MSAO Web sites, MSAO will encourage children to seek the consent of their parents before providing any information about themselves or their households to anyone on the Internet.
Finally, MSAO encourages parents to take an active role to protect the privacy and security of their children and to prevent the inappropriate use of information about their children. MSAO supports the development of technologies that help parents control the collection and use of personal information from children who use online services in their households.