Terms & Conditions
VERY IMPORTANT! PLEASE READ CAREFULLY!
This Software License and Revenue Sharing Agreement (this "Agreement") is a legal contract by and between Mimoona Ltd., an Israeli company located at 163 Ibn Gabirol, Tel Aviv, Israel, ("Mimoona"), and you (an individual, a business entity, or a non-profit entity) ("Licensee") governing the use of the software described below.
BY CLICKING THE “I ACCEPT” BUTTON, OR BY DOWNLOADING, INSTALLING, OR
OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE.
Whereas Mimoona is the developer and owner of software that allows a website to deploy a crowd-funding platform, and/or a single crowdfunding campaign, and/or a standalone crowdfunding platform and of all future development and adjustments to such software and of all future development and adjustments to such software (the "Software"); and whereas the Software can be embedded in websites for use by project owners and project entities ("Fundraiser(s)") who wish to raise funds for a particular project from backers and supporters ("Contributor(s)"); and
Whereas Licensee wishes to license the Software from Mimoona for the purpose of embedding and deploying the Software on its website or as a standalone crowdfunding platform ("Site") for use by Fundraisers and Contributors.
Now therefore, for good and valuable consideration, the sufficiency and adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1.1. License Grant.
a. Subject to the terms and conditions of this Agreement, during the term of this Agreement, Mimoona hereby grants to Licensee, and Licensee hereby accepts from Mimoona, a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable, worldwide, license to use, embed, incorporate, and display (collectively, "Use") the Software, in object code form only, on the Site for use by Fundraisers and Contributors. Neither this Agreement nor the Use of the Software by Licensee, shall grant to Licensee or any third party any interest, right or access in, under or to the source code of the Software.
b. All rights which are not expressly granted herein are reserved by Mimoona. Licensee may not make any use of the Software or the Services in whole or in part in any manner not expressly permitted by this Agreement. The right and license granted herein for Use of the Software or Services is limited to the specific Use in the manner set forth herein. Licensee may not use the Software or Services for or on behalf of any third parties, unless Licensee has first obtained written consent from Mimoona.
1.2. Delivery. Licensee shall take delivery of the Software by installing it on its Site, via the method provided by Mimoona including via Wix app store
1.3. Restrictions on Use. Except as expressly specified in this Agreement, Licensee will not: (a) use, copy, create derivative works of or modify the Software or any part thereof; (b) transfer, sublicense, lease, lend, rent or otherwise distribute the Software to any other person or entity; or (c) use the Software in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement. Licensee agrees not to disassemble, decompile, attempt to derive the source code of, or otherwise reverse engineer the Software or any part thereof, in whole or in part, or permit or authorize any other person or entity to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition, or remove, alter, or conceal, in whole or in part, any copyright, trademark or other proprietary rights notices that are contained on or within the Software.
1.4. Related Services. Mimoona may, at its sole discretion, provide additional services to Licensee for the purpose of enhancing Use of the Software ("Services"). Mimoona may charge advanced fees for such Services in addition to the Revenue Share set forth in Section 4 below.
1.5 Mimoona Discretion.
a. Mimoona retains the exclusive right in its sole discretion to: (i) determine which features, services, products, software or other tools will be available for Licensee’s use via the Software; and (ii) add, change or remove any content, materials and/or functionality made available in the Software at any time for any reason. For example, Mimoona may change the settings and/or appearance of any part of the Software or the Services or any elements thereof, without prior notice to Licensee or Mimoona may provide any updates, new versions, new releases and upgrades to the Software or the Services or any other elements thereof.
b. Licensee is required to comply with all terms applicable to use of third party services. At all times during the term of this Agreement, Mimoona reserves the right to take any action, in its sole discretion, with respect to the means used by Licensee to deploy and/or use the Software or the Services, and in the event Mimoona disapproves of such deployment and/or use, Mimoona shall have the right, without notice, to suspend Licensee’s access to the Software or the Services until such time that Licensee implements adequate remedial modifications as reasonably required and determined by Mimoona.
2. Licensee Obligations.
a. Licensee shall be solely responsible for any failure as a Fundraisers or Contributors to comply with the obligations taken by him with connection to use of the Software towards Contributors and hereby release Mimoona from any liability in that respect as Mimoona is software provider.
b. Licensee may not use the Software or the Services for any other purpose other than that for which Mimmona makes it available. Prohibited activity includes, but is not limited to:
i. criminal or tortious activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, copyright infringement, patent infringement, or theft of trade secrets;
ii. systematic retrieval of data or other content from the Software or the Services or the Site to create or compile, directly or indirectly, a collection, compilation, database or directory without written permission from Mimoona;
iii. making any unauthorized use of the Software and/or Services, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses;
iv. disguising the origin of any information or inquiry transmitted through use of the Software and/or Services or using tools which anonymize Licensee’s internet protocol address (e.g. anonymous proxy) to use the Software or access the Services;
v. engaging in unlawful multi-level marketing (such as a pyramid scheme);
vi. tricking, defrauding or misleading Mimoona or others, especially in any attempt to learn sensitive account information such as passwords;
vii. making improper use of Mimoona’s support services or submitting false reports of abuse or misconduct;
viii. interfering with, disrupting, or creating an undue burden on the Software or Services;
[ix. attempting to impersonate another user or person or using the username of another user;
x. using any information obtained via the Software or Services in order to harass, abuse, or harm another person;
xi. using the Software or Services as part of any effort to compete with Mimoona or to provide services as a service bureau;
xii. deciphering, decompiling, disassembling or reverse engineering any of the software comprising or in any way making up a part of the Software or Services;
xiii. attempting to bypass any measures of the Software or Services designed to prevent or restrict access to the Software or Services, or any portion the Software or Services thereof;
xiv. harassing, annoying, intimidating or threatening any Mimoona employees or agents engaged in providing any portion of the Services to Licensee;
xv. uploading or transmitting (or attempt to upload or to transmit) viruses, Trojan horses or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text) that interferes with any party's uninterrupted use and enjoyment of the Software or Services or modifies, impairs, disrupts, alters or interferes with the use, features, functions, operation or maintenance of the Software or Services;
xvi. engaging in cheating or any other activity deemed by Mimoona to be in conflict with the spirit or intent of the Software or Services;
xvii. disparaging, tarnishing, or otherwise harming, in Mimoona’s opinion, Mimoona and/or the Software or Services; and
xviii. using the Software or Services in a manner inconsistent with any and all applicable laws and regulations.
3. User Data.
As between Mimoona and Licensee, all data and information on the Site relating to Fundraisers, Contributors, and their respective projects and financing activities ("User Data"), shall be owned by Licensee. Without derogating from any other data rights set out in this Agreement, it is agreed that Mimoona may also use User Data for its own statistical and analytical purposes, and Licensee shall grant Mimoona access thereto accordingly. Mimoona nay share crowdfunding campaigns between different Licensees, subject to approval of the Licensee. Licensee is responsible for the protection and legal use of the User Data.
4. Revenue Share and Payment Terms.
4.1. Single campaign Page: A Licensee who uses the Softwre in order to implement a single campaign page, as opposed to fully featured crowdfunding platform, shall be able to upload a campaign with no charge. Mimoona will be entitled to 5% of the funds raised in the single campaign page, which shall be deducted automatically from the funds raised, in campaigns which the fund seeker must meet the goal amount in order to get the funds ("All or Nothing") and 10% of the fund raised in a campaign in which the fund seeker will get the funds even if he will not meet the goal amount ("Flexible"). Payment processing fees shall be deducted as agreed with the payment processing company between the Licensee and the payment processing company.
4.2. Multiple Campaign platform:
Licensee will be charged with accordance to the plan he chose while registered. The pricing plans are as published on www.mimoona.com/pricing, and subject to a change from time to time with prior notice on the website. Mimoona will not change the pricing of existing Licensee retroactively with respect to the pricing plan Licensee is currently under .Mimoona shall deduct its share of the funds raised on the Platform and the fixed fee in accordance to the pricing plan each month and will transfer to Licensee its share from the commission the Licensee set up, each month. Licensee can change the pricing plan, and such change shall effect Mimoona's share only with respect to the commission in projects which have been submitted the following month. Such change shall be valid as of the following month since to notice to Mimoona.
4.3 Refunds. All payments received by Mimoona as a result of Licensee’s use of the Software (whether directly or indirectly) are non-refundable.
4.4. All fees do not include payment processing fees as charged by the payment processor.
5. Term and Termination.
5.1. This Agreement shall remain in full force and effect while Licensee uses the Software and/or Services.
5.2 Either party may terminate this Agreement immediately (by providing a notice thereof to the other party) if the other party breaches this Agreement.
5.3. Without limitation, using the Site and/or Software for illegal or restricted purposes shall be considered material breaches.
5.4. Following termination (except in the case of an illegal use of the Site or Software, in which case termination of all illegal Fundraiser campaigns shall be immediate), Mimoona may, but not under the obligation, allow Fundraiser campaigns to continue to their original end dates (with no extensions allowed), but shall not allow Licensee to launch any new Fundraiser campaigns using the Software.
5.5. If this Agreement is terminated as permitted herein due to Licensee's breach, then Licensee has no right to use the Software.
5.6. WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, MIMOONA RESERVES THE RIGHT TO, IN MIMOONA’S SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SOFTWARE AND THE SERVICES, TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR REGULATION, AND MIMOONA MAY TERMINATE LICENSEE’S USE OF THE SOFTWARE AND/OR SERVICES AT ANY TIME, WITHOUT WARNING, IN MIMOONA’S SOLE DISCRETION.
5.7. Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
5.8. LICENSEE UNDERSTANDS THAT CERTAIN STATES ALLOW LICENSEE TO CANCEL THIS AGREEMENT, WITHOUT ANY PENALTY OR OBLIGATION, AT ANY TIME PRIOR TO MIDNIGHT OF MIMOONA’S THIRD BUSINESS DAY FOLLOWING THE DATE OF THIS AGREEMENT, EXCLUDING SUNDAYS AND HOLIDAYS. TO CANCEL, CALL A MIMOONA REPRESENTATIVE DURING NORMAL BUSINESS HOURS. THIS SECTION APPLIES ONLY TO INDIVIDUALS RESIDING IN STATES WITH SUCH LAWS.
6.1.Mimoona. The intellectual property and proprietary rights of any nature in the Software, and any development work and/or adjustment performed for Licensee, whether or not Licensee paid for such adjustment or development, including, without limitation, API's, new features and all other derivatives of the Software's source code (collectively, “Mimoona IP”), are and shall remain the exclusive property of Mimoona. Except as expressly set forth herein, nothing in this Agreement shall be construed as transferring any such rights to Licensee or any third party. Unless otherwise agreed by Mimoona in writing, Licensee shall use the phrase "Powered by Mimoona" in at least 8-point type on the page(s) of the Site in which the Software is embedded. At no time shall Licensee or any third party have access to the source code of the Software. Mimoona IP, to the extent its use is permitted hereunder, is provided to Licensee “AS IS” for Licensee’s information and personal use only and may not be used, copied, reproduced, aggregated, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Mimoona reserves all rights not expressly granted to Licensee in and to the Mimoona IP. Licensee agrees not to circumvent, disable or otherwise interfere with security related features of the Mimoona IP or features that prevent or restrict use or copying of any Mimoona IP or enforce limitations on use of the Mimoona IP.
6.2. Licensee. The intellectual property and proprietary rights of any nature in the Site (but not including any Software embedded therein and any development work performed on for Licensee) are and shall remain the exclusive property of Licensee and/or its licensors. Nothing in this Agreement shall be construed as transferring any such rights to Mimoona or any third party. However, Mimoona shall be able to disclose that the Site is a customer of Mimoona (as provided herein) on Mimoona's websites and in other marketing materials.
7. Updates and Upgrades. Mimoona may, but in no way under any obligation, provide to Licensee all Updates and Upgrades, including any related Documentation, as they become generally released by Mimoona. The price for said Updates and Upgrades, and related Documentation, is included within the Revenue Share. All references herein to the Software shall included Updates and Upgrades. "Updates" means a new generally-available release of the Software that typically includes fixes and minor new features or enhancements. "Upgrades" means a new generally-available release of the Software that typically includes significant new features and/or enhancements. At Mimoona's sole discretion, some Upgrades will only be available upon Licensee's payment of a fee in addition to the Revenue Share described in Section 5.
8. Support Services. Mimoona shall provide Licensee the Software maintenance and support services set forth in Schedule A, attached hereto ("Support Services"). Licensee shall be solely responsible for providing maintenance and support services directly to its Customers. Mimoona makes no guarantees regarding the performance or fairness of any third party involved in processing the funds raised for each project, and the Support Services shall not apply to such third parties services.
9. Marketing Activities.
a. Either party may make public announcements and undertake marketing regarding the fact that Licensee intends to use, or is using, the Software. Any such announcement or marketing by one party about the other party must: (i) reflect favorably on the other party and be consistent with the way in which the other party presents itself and its products; and (ii) not misrepresent the other party or present it (or its products) in a negative manner. Each party shall discontinue any marketing involving the other party upon the other party's request.
b. In addition to, and not as a limitation of the above, Licensee agrees that Mimoona may: (a) feature Licensee’s use and implementation of the Software and Services in Mimoona’s marketing outlets and/or collateral, including without limitation newsletters, case studies, email or advertisement campaigns and web pages; (b) identify Licensee as a user of the Software and Services on Mimoona’s websites, client lists, press releases, and in other marketing; and (c) publish a brief description and/or case study highlighting Licensee’s deployment and use of the Software and Services. Unless otherwise agreed by parties, Licensee shall not be entitled to any compensation as a result of any Mimoona promotion. If Licensee does not want Mimoona to exercise the rights described in this paragraph, then Licensee must notify Mimoona in writing. Upon receiving any such notice, Mimoona shall implement a process to cease the exercise of such rights that began prior to such notice within a time frame that is commercially reasonable under the particular circumstances of such use.
10. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SOFTWARE IS PROVIDED TO LICENSEE "AS IS," WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION, WARRANTIES OF ANY THIRD PARTY SERVICES SUCH AS THE PAYMENT PROCESSOR. LICENSOR DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WHILE WE MAKE REASONABLE EFFORTS TO ENSURE THAT THE SOFTWARE WILL FUNCTION AS CLAIMED, MIMOONA DOES NOT GUARANTEE THAT THE SITE WILL BE FREE OF BUGS, SECURITY BREACHES, VIRUS ATTACKS AND THE LIKE, OR THAT IT WILL ALWAYS BE AVAILABLE
11. Representations and Warranties.
a. Mimoona represents and warrants to Licensee that:
(i) It has, or has obtained, the right to grant the License to Licensee, and the execution and performance of this Agreement will not: (i) constitute a default under or conflict with any agreement or other instrument to which it is a party or by which it is bound; and (ii) do not require any third party consent.
(ii) It shall perform any services hereunder in a professional and workmanlike manner.
(iii) The Software is not known by Mimoona to: (i) infringe or violate any intellectual property or any other right of any third party; or (ii) violate any industry standards or applicable law.
(iv) The Software is not known to Mimoona to contain any program routine, device, or other undisclosed feature, including, without limitation, a time bomb, virus, software lock, drop dead device, malicious logic, worm or Trojan horse, that is designed to delete, disable, deactivate, interfere with, or otherwise harm Licensee or Fundraisers or that is intended to provide access or produce modifications not authorized by Licensee.
b. Licensee represents and warrants to Mimoona that:
i. all registration information submitted by Licensee is truthful and accurate;
ii. Licensee will maintain the accuracy of such information;
iii. Licensee’s use of the Software and/or Services does not violate any applicable law or regulation;
iv. the content on the Site (“Site Content”) does not contain any viruses, worms, Trojan horses, malicious code or other harmful or destructive content, or links to any spyware sites, phishing sites, etc.;
v. Site Content is not obscene, lewd, lascivious, filthy, violent, harassing or otherwise objectionable (as determined by Mimoona), libelous or slanderous, does not ridicule, mock, disparage, intimidate or abuse anyone, does not advocate the violent overthrow of the government of the United States, does not incite, encourage or threaten physical harm against another, does not violate any applicable law, regulation, or rule, and does not violate the privacy or publicity rights of any third party;
vi. Site Content does not contain material that solicits personal information from anyone under 18 or exploit people under the age of 18 in a sexual or violent manner, and does not violate any federal or state law concerning child pornography or otherwise intended to protect the health or wellbeing of minors;
vii. Site Content does not include any offensive comments that are connected to race, national origin, gender, sexual preference or physical handicap;
viii. Site Content and Licensee’s use of the Software and Services will at all times be in strict compliance with all laws and regulations, including, without limitation, laws regulating marketing, advertising, security, and privacy;
ix. Site Content does not amount to trolling, or the making of controversial statements for the sole purpose of generating responses by others;
x. Site Content does not constitute, contain, install or attempt to install or promote spyware, malware or other computer code, whether on Mimoona’s or others’ computers or equipment, designed to enable Licensee or others to gather information about or monitor the online or other activities of another party;
xi. Site Content does not inundate the Mimoona with communications or other traffic suggesting no serious intent to use the Software or Services for their stated purpose; and
xii. Site Content does not otherwise violate, or link to material that violates, any provision of this Agreement or any applicable law or regulation.
12. Limitation of Liability.
12.1. IN NO EVENT SHALL MIMOONA OR ITS SHAREHOLDERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR CHARACTER, INCLUDING LOST PROFIT DAMAGES ARISING FROM LICENSEE’S USE OF THE SOFTWARE OR SERVICES, EVEN IF MIMOONA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, MIMOONA’S LIABILITY TO LICENSEE FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID BY LICENSEE TO MIMOONA DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM IS BROUGHT
12.2. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO LICENSEE, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND LICENSEE MAY HAVE ADDITIONAL RIGHTS.
12.3. IF LICENSEE IS A CALIFORNIA RESIDENT, LICENSEE WAIVES CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
13. Site Management. Mimoona reserves the right but does not have the obligation to:
i. monitor the use of the Software and Services for violations of this Agreement;
ii. take appropriate legal action against anyone who, in Mimoona’s sole discretion, violates this Agreement, including without limitation, reporting such user to law enforcement authorities;
iii. in Mimoona’s sole discretion and without limitation, refuse, restrict access to or availability of, or disable (to the extent technologically feasible) any Licensee access or any portion thereof that may violate this Agreement or any policy of Mimoona; and
iv. otherwise manage the use of the Software and Services in a manner designed to protect the rights and property of Mimoona and others and to facilitate the proper functioning of the Software and Services.
15.1 To Agreement. Mimoona may modify this Agreement from time to time. Any and all changes to this Agreement will be posted on Mimoona’s websites and revisions will be indicated by date. Licensee agrees to be bound to any changes to this Agreement when Licensee uses the Software and/or Services after any such modification becomes effective. Mimoona may also, in its discretion, choose to alert Licensee of such modifications by means of an email to its most recently provided email address. It is therefore important that Licensee regularly reviews this Agreement and keep its contact information current to ensure it is informed of changes. Licensee agrees that it will periodically check Mimoona’s website for updates to this Agreement and will read the messages Mimoona sends it to inform Licensee of any changes. Modifications to this Agreement shall be effective after posting. Additionally, modifications made to this Agreement applicable to dispute resolution shall not apply to disputes arising prior to the effective date of the modification.
15.2 To Services. Mimoona reserves the right at any time to modify or discontinue, temporarily or permanently, the Software and/or the Services (or any part thereof) with or without notice. Licensee agrees that Mimoona shall not be liable to Licensee or to any third party for any modification, suspension or discontinuance of the Software and/or the Services.
16.1 Between Licensee and Fundraisers/Contributors. If there is a dispute between Licensee, on the one hand, and Fundraisers or Contributors (each a “Licensee User”) on the other hand, or between Licensee and any third party, Licensee understands and agrees that Mimoona is under no obligation to become involved. In the event that Licensee has a dispute with one or more Licensee Users, you hereby release Mimoona, its officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or the Software and/or Services.
16.2 With Mimoona. All questions of law, rights, and remedies regarding any act, event or occurrence undertaken pursuant or relating to the Software, Services or this Agreement shall be governed and construed exclusively by the law of the State of Israel, excluding its choice of law provisions. Any legal action of whatever nature by or against Mimoona arising out of or related in any respect to the Software, Services or this Agreement shall be brought solely in shall be governed by the laws of the State of Israel. All disputes arising out of this Agreement shall be subject to the sole and exclusive jurisdiction of the competent courts located in Tel Aviv-Yaffo, and each party irrevocably waives all objections to such venue; subject, however, to the right of Mimoona, at the Mimoona's sole discretion, to bring an action to seek injunctive relief to enforce this Agreement or to stop or prevent an infringement of proprietary or other third party rights (or any similar cause of action) in any applicable court in any jurisdiction where jurisdiction exists with regard to a user. Licensee hereby consents to (and waives any challenge or objection to) personal jurisdiction and venue in the above-referenced courts. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded from this Agreement. Additionally, application of the Uniform Computer Information Transaction Act (UCITA) is excluded from this Agreement. In no event shall any claim, action or proceeding by you related in any way to the Software, Services or this Agreement be instituted more than two (2) years after the cause of action arose.
17. Corrections. Occasionally there may be information on the Mimoona website or Services that contains typographical errors, inaccuracies or omissions that may relate to service descriptions, pricing, availability, and various other information. Mimoona reserves the right to correct any errors, inaccuracies or omissions and to change or update the information at any time, without prior notice.
18. Disclaimers.LICENSEE AGREES THAT ITS USE OF THE SOFTWARE AND SERVICES WILL BE AT LICENSEE’S SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, MIMOONA, ITS OFFICERS, SHAREHOLDERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SOFTWARE AND SERVICES AND LICENSEE’S USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. MIMOONA DOES NOT WARRANTY ERROR-FREE OPERATION OF THE SOFTWARE OR SERVICES, CONTINUOUS AVAILABILITY OF THE SOFTWARE OR SERVICES, OR THAT ALL ERRORS OR PROBLEMS WILL BE CORRECTED. MIMOONA MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SOFTWARE OR THE OPERATION THEREOF OR THE SERVICES AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS OR IN THE OPERATION OF THE SOFTWARE OR SERVICES, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SOFTWARE AND/OR SERVICES, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SOFTWARE, THE MIMOONA WEBSITE OR SERVICES BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR OPERATION OF THE SOFTWARE OR SERVICES.
19. Relationship of Parties. The parties acknowledge that they are independent contractors and no other relationship, including partnership, joint venture, employment, franchise, or principal/agent is intended by this Agreement. Neither party shall have the right to bind or obligate the other.
20. Assignment. Neither party may assign its rights and obligations under this Agreement, except with the prior written consent of the other party which shall not be unreasonably withheld or delay. Notwithstanding the foregoing, either party may assign this Agreement in whole, without requiring the written consent of the other party, as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. In the event of a valid assignment, this Agreement will inure to the benefit of and be binding upon the permitted assigns. Any prohibited assignment shall be null and void.
21. General. The preamble to this Agreement constitutes an integral part hereof. All headings of the sections and subsections of this Agreement are intended for convenience of reference and shall not be used in interpreting this Agreement. The appendices attached hereto are incorporated in, and made a part of, this Agreement by this reference. All capitalized but undefined terms in an appendix to this Agreement shall be given the meaning set forth herein. This Agreement: (i) constitutes the entire agreement between the parties pertaining to the subject matter hereof, and supersedes any and all written or oral agreements with respect to such subject matter; (ii) shall be governed by the laws of the State of Israel, excluding its choice of law provisions. All disputes arising out of this Agreement shall be subject to the sole and exclusive jurisdiction of the competent courts located in Tel Aviv-Yaffo, and each party irrevocably waives all objections to such venue. The waiver of a breach of any term hereof shall in no way be construed as a waiver of any other term or breach hereof, and any such waiver that is granted thereunder must be in writing and shall be valid only in the specific instance in which given. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect. Mimoona may alter or revise the terms of this Agreement by giving Licensee thirty (30) days notice of the changes to be made. If Licensee does not agree to accept the changes, Licensee’s sole remedy shall be to discontinue Licensee’s use of the Software.
Mimoona will provide (i) second tier (“Tier 2”) support services, which support will include loading bug fixes for the Software, and ensuring its functionality and use, and (ii) third tier (“Tier 3”) backup technical support services only to the Licensee and not to Fundraisers or Contributors. These backup technical support services consist of error correction and telephone support during normal business hours concerning the installation and use of the Software.
The backup technical support services do not include on-site assistance, installation, training or support for third party products or services. The initial response time herein shall not apply in case of force major, in which Mimoona shall do its best efforts to response. For the purposes of this Agreement “force majeure” means any cause beyond the reasonable control of the parties including, without limitation, any of the following: (a) act of God; (b) war, insurrection, riot, civil disturbance, acts or attempted acts of terrorism; (c) fire, explosion, flood, storm; (d) theft or malicious damage, including denial-of-service (DoS) attacks; (e) strike, lock-out, or other industrial dispute (whether involving the workforce of the party so prevented or any other party), third party injunction; (f) national defense requirements, acts or regulations of national or local governments (including, without limitation, legislation or other regulation restricting, preventing or otherwise prohibiting the provision or availability of internet-based gaming); or public power shortages; malfunctions or failures in public telecommunication or IT services or breakdown of other public infrastructures
7. INCIDENT REPORTING AND RESOLUTION
Licensee shall report any and all problems (“Support Incident(s)”) directly to Mimoona, and Mimoona shall respond in accordance with the following severity levels:
|I||· The Software is not available||8 hour|
|II||· An inoperable production module||12 hours|
|III||· Other production performance related issues, typically a module feature working incorrectly||2 business day|
|IV||· Non-performance related incidents, including: general questions, requests for information, documentation questions, enhancement requests||4 business days|