Terms and conditions

1.   Terms of Agreement

This General Terms and Conditions forms part of the accepted purchase order of services from Topicx Customer Experience Systems Ltd. (the “Purchase Order” or “Agreement”) and consist an integral part of the Purchase Order, set forth the terms and conditions according to which Topicx Customer Experience SystemsLtd. (the “Company”) provide the services specified in the Purchase Order to you, the client who executed the Purchase Order (the “Client”), effective for the Term (as defined below). This Agreement between the Client and the Company, shall become effective on the date specified in the Purchase Order (the “Effective Date”).

2.   Amendments to the Purchase Order

The Parties may amend the Purchase Order from time to time by executing an addendum thereof or a new Purchase Order.

3.   Use of Client Marks

Client hereby grants to Company a nonexclusive, non-transferable, effective for the Term of this Agreement, royalty-free, fully paid up, worldwide license right touse Clients’ marks and/or trademarks, for the limited purpose of providing the services under this Agreement. Client shall be fully responsible for any of its trade-marks used for the purpose of this Agreement including any claims of infringement of any third party’s trade-marks.

4.   Subscription, Price and Payment

Your Purchase Order is a subscription to one of the subscription plans specified in the Purchase Order, that you have chosen in the Purchase Order. Your subscription will automatically renew on a regular (i.e. monthly) basis that automatically renews until you cancel. Your subscription and the rights and privileges provided to you according to the Purchase Order is personal and non-transferable.

Company's fees for the services are as set forth in the Purchase Order. Any additional fees as may be added will be in accordance to updated Purchase Order in writing. All fees are exclusive of all applicable federal, state, municipal and other government taxes (such as sales, use, withholding and similar taxes) and similar charges, for which the Client shall be solely responsible.

All fees shall be due and payable according to the Purchase Order. If any payments due to Company are not paid in accordance with this Agreement, Company shall not provide the services according to the Purchase Order, and may terminate the Agreement immediately.

Client may pay for the service only with credit card payments (e.g. Visa, MasterCard, American Express, or other available providers) which the Company approved that are available to use. Company will charge your credit card on a monthly basis.  

When Client provides a payment method to the Company, Client is granting its express consent and is expressly authorizing the Company (and/or Company’s designated payment processor) to automatically charge Client each month for its subscription according to the Purchase Order. If Client provides a payment method and Company’s charge results in an overdraft, chargeback or other fee from Client’s bank, Client alone is responsible for that fee.

The Client must provide and at all times must maintain accurate, complete, and current billing information, including but not limited to billing address, credit card number, and credit card expiration date. If Client fails to disclose any such information, Client agrees that the Company may continue charging the Client for any use of the services unless the Client has terminated its subscription as set forth herein.  If the Client becomes aware of a potential breach of security to its billing information (such as credit card loss or theft), Client must notify the Company immediately.

5.   Representation and Warranties

The Services is provided "AS-IS" and Client acknowledges it has reviewed the services which are the subject matter of this Agreement, found it suitable for its needs and consents to their functionality. Company does not warrant that use of the services and/or any part thereof will be error-free or uninterrupted. Provided, however, that the services shall conform to the requirements in this Agreement. Company is not responsible for the availability and/or functionality of any feature in the services that is a third-party feature and/or feature provided and/or executed through the services that Company integrated into the services.

Company is not responsible for any software installed or used by the Client and/or the customers of the Client on any device, including “WhatsApp” and/or “Facebook Messenger” applications and or any other third party messaging application that is integrated with the services.

It is hereby clarified that any use of such third-party messaging applications by the Client and/or the customers of the Client, are subject to those applications terms of use and their privacy policy.  

COMPANY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY MAKES NO WARRANTY AS TO THIRD PARTY SERVICES OR THIRD PARTY MATERIALS.

Company represents and warrants to the Client that: (i) all services performed hereunder will be performed in a professional and workmanlike manner, with care, skill and diligence, and consistent with the applicable standards in Company’s profession or industry; and (ii) The services will be tested for, and do not contain, Harmful Code; “Harmful Code” means any computer code, programming instruction, or set of instructions (including without limitation, self-replicating and self-propagating programming instructions commonly called viruses and worms) that are constructed with the ability to damage, interfere with, or otherwise adversely affect computer programs, data files, or hardware, without the consent or intent of the computer user.

Errors and Waiver
Without derogating as of the above, as it is clarified above, and the Client acknowledges, that Company does not warrant that use of the services and/or any part thereof will be error-free or uninterrupted, errors may accrue especially with this kind of automatic and/or semi-automatic services. The Company shall do best efforts to prevent such errors/malfunctions, but it is clarified that the Company is unable to prevent this at any given time, and so, the Client hereby waives and hold harmless the Company from any claim and/or suit and/or demand against the Company and/or anyone on its behalf in connection with any type of damage caused to him and/or to anyone on his behalf and/or to any of his customers as a result of such errors/malfunctions.

6.   Limitation of Liability

Except for a party’s indemnification obligations, breach of the confidentiality, compliance with laws, and/or infringement of intellectual property rights provisions contained herein, in no event shall either party be liable for loss of profits, indirect, special, incidental, or consequential damages arising out of any breach of this Agreement or obligations under this Agreement. The monthly fee does not include any payment to third party vendors in respect to applications integrated with the services, as long as such are integrated. Except for a party’s indemnification obligations, breach of the confidentiality, compliance with laws (including privacy laws) and/or for infringement of intellectual property rights provisions contained herein, the liability of either Party under this Agreement shall in no event exceed the fees paid by Client for the services giving rise to the liability during the 3-month period immediately preceding the occurrence or act or omission giving rise to the claim.

Any of the scenarios and call routes with Clients’ customers, according to the applicable subscription chosen by the Client in the Purchase Order, shall be made available Client’s personal section on the Company’s website. The Client represents that unless Company failed to make amendments requested by customer to the scenarios and/or call routes it shall have no claim and/or suit and/or demand against the Company and/or any one Company’s behalf with respect to the aforesaid subject matter in this section.

8.   Indemnity

Each party will defend, indemnify and hold the other party harmless against any claims, liabilities, and damages (including, but not limited to, all reasonable costs, expenses and attorneys' fees) incurred by indemnified party arising out of or in connection with the indemnifying party’s: (i)  breach of this Agreement (including any confidentiality obligations); (ii) breach of any representation or warranty; (iii) failure to comply with any applicable law, rule, and regulation; and (iv) infringement of, or claim that the indemnifying party has infringed, any trade secret, patent, trademark, copyright or other proprietary interest of any third party.

It is hereby clarified, and the Client acknowledges and understands, that the Company is not and shall not be liable for any of the content offered through the services by the Client. It is in the sole responsibility of the Client and its customers, for reviewing and checking the each content, and any use of the services by them, and any action according to such content are at their own risk. The Client shall indemnify and hold harmless the Company and/or any on its behalf from any claim and/or suit and/or demand with respect to the aforesaid, including from any third parties (including Client’s customers).

9.   Restrictions

Client agrees not to submit to the services, any material that is illegal, misleading, defamatory, indecent or obscene, threatening, infringing of any third party proprietary rights, invasive of personal privacy, or otherwise illegal (collectively, “Objectionable Matter”). Client will indemnify and hold Company harmless in respect of any claims and damages (including, but not limited to, all reasonable costs, expenses and attorneys' fees incurred thereby) incurred by Company arising out of or in connection with any Objectionable Material submitted to the services. Company reserves the right to remove any data, information or material provided or submitted to Company in the course of utilizing the services (“Submitted Data”) that constitutes Objectionable Matter or violates any Company rules regarding appropriate use or violates the Terms of Use, but is not obligated to do so. Client agrees and undertakes not to: (i) act in a manner which might be perceived as damaging to Company’s reputation and goodwill or which may bring Company into disrepute or harm; (ii) upload to the services or otherwise use it to design, develop, distribute and/or otherwise transmit or execute, any virus, worm, Trojan Horse, time bomb, web bug, spyware, malware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; (iii) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the services or Company’s systems or networks connected to the services, or otherwise interfere with or disrupt the operation of the services and/or any part thereof, or the servers or networks that host them or make them available, or disobey any requirements, procedures, policies, or regulations of such servers or networks and/or exceeds the service’s design limitations as set forth in the Terms of Use; (iv) use any of the services in connection with any form of spam, unsolicited mail, fraud, scam, phishing, “chain letters”, “pyramid schemes” or similar conduct; (v) sell, license, or exploit for any commercial purposes any use of or access to the services, except as expressly permitted by these Agreement; or (vi) violate, attempt to violate, or otherwise fail to comply with any of these terms of the Agreement or any laws or requirements applicable to the use of the Platform.

10.   User Data

To the extent Client and/or any of Client’s customers provides any data and/or personal data and/or content and/or other materials in connection with the services (“User Data”), it is hereby agreed that Company shall have no rights in connection with such User Data, except as expressly permitted in this Agreement and the Terms of Use. Company shall be entitled to use User Data solely during the Term of this Agreement, for the purpose of performing its obligations under this Agreement and in accordance to the Terms of Use. Client is responsible for ensuring that the Client and its customers shall grant Company a nonexclusive, non-transferable, effective for the Term of this Agreement, royalty-free, fully paid up, worldwide license right to use User Data for the purpose of providing the services, and for the purpose of creating the Topicx Processed Data (the “License”). Any User Data shall be considered as Confidential Information.

The License is granted to the Company for an indefinite term and it shall survive the termination of the Agreement between the Parties, provided that no personal information will be disclosed and that the anonymity of the information stored in User Data will remain confidential.

11.   Topicx Processed Data

The Company processed the User Data for the purpose of creating statistical metadata for Company’s internal purposes (‘Topicx Processed Data”). The Topicx Processed Data is created after the Company permanently and completely removed personal identifiers from the User Data so that the Topicx Processed Data can no longer be associated with an individual. Company shall be the sole owner of the Topicx Processed Data and shall have all rights in connection with such Topicx Processed Data.

12.   Intellectual Property

This Agreement grants no ownership rights to Client or any other party, including any customer of the Client, ownership of the services and/or any part therein, and all patents, copyrights, trademarks, designs and any other intellectual property rights, whether registered or not, and all related know-how therein, are not transferred by this Agreement, and shall remain the sole property of the Company and/or its suppliers/licensors at all times. Client agrees not to reverse engineer the services or any part thereof. Client will not use or access the services to: (i) build a competitive product and/or service and/or software (ii) make or have made a product using similar ideas, features, functions or graphics of the services, (iii) make derivative works based upon the services, or (iv) copy any features, functions or graphics of the Services. Client will not “frame” or “mirror” the services. The use, resale or exploitation of the services, except as expressly permitted in this Agreement, is prohibited. The Company name, the Company logo, and the product names associated with the services, are trademarks of Company or of third parties, and may not be used without Company’s prior written consent.

13.   Confidential Information

The services embodies logic, design and coding methodology that constitute valuable confidential information that is proprietary to Company. All User Data will be held as confidential by Company and will not, without the prior written consent of Client, be disclosed or be used for any purposes other than the performance of this Agreement, and according to the Terms of Use. Each party will safeguard the confidentiality of the other party’s confidential information using the same standard of care that it uses for its own confidential materials, and at a minimum, a commercially reasonable standard. The foregoing obligations do not apply to data that: (i) is or becomes, through no act or failure to act on the part of the disclosing party, generally known or available; (ii) is known by the receiving party at the time of receiving such information as evidenced by its written records; (iii) is hereafter furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure; or (iv) is the subject of a written permission to disclose provided by the disclosing party.

Notwithstanding the foregoing, disclosure of data will not be precluded if such disclosure: (i) is in response to a valid order of a court or other governmental body; (ii) is otherwise required by law; or (iii) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary. The parties shall jointly release a press release or other public statement and/or announcement relating to their engagement in this Agreement.

Publicity
Neither party will issue any publicity or general marketing communications concerning this relationship without the prior written consent of the other Party; During the Term of this Agreement each Party may insert the other Party's name and logos on its websites subject to the other Party written consent.

14.   Privacy

The parties must, in the performance of this Agreement, comply with all applicable privacy laws (including those applicable to Client) in respect of all the Personal Information (as defined below).

By executing this Agreement, the Client agree to the Privacy Policy of the Company which can be found at the following address: www.topicx.il/privacy.

Also, Client acknowledges and represent that he is the sole owner of the database in which the Personal Information included, and that the Company is only a processor that shall process the Personal Information only for the purpose of this Agreement and for the Client for performing of the services according to this Agreement, and according to Client’s instructions and in accordance to the Data Processing Agreement which can be found at the following address: www.topicx.il/dpa, and to which the Client agree by excepting this Agreement.

Without derogating as of the aforesaid, Client must: (i) collect, use, disclose and otherwise process and deal with Personal Information in accordance with any applicable law, including the Israeli privacy laws and their regulations; (ii) not disclose Personal Information of its customers except: (a) to the extent necessary for the purpose of performing this Agreement; (b) as required by law (to the extent practicable); or (c) with the prior written consent of its customer; (iii) co-operate with reasonable requests or inquiries made by Company in relation to the Personal Information under or in connection with this Agreement; (iv) reasonably co-operate with the Company to resolve any complaint made against Company and/or Client under any applicable privacy law; and (v) take all reasonable steps to ensure the Personal Information is protected against unauthorized access, use, interference, modification, processing or disclosure.

Without limiting any other provision of this Agreement, Client represents and warrants that its security and privacy policies will at all times be compliant with the requirement and procedure under the applicable privacy laws.

In this clause: “Personal Information” means any personal identifiable information of an individual natural person, that Company shall receive from the Client according to this Agreement and shall process it for the Client, in the course of, or in connection with this Agreement.

15.   General

Neither Party shall be liable for its failure to perform or for delay in performance of such party’s obligations under this Agreement if such performance is prevented, hindered or delayed by reason of any cause beyond the reasonable control of such party, provided that the party shall use reasonable efforts to remove such causes of non-performance. This Agreement and the rights and duties hereunder shall not be assignable by either party hereto except that Company shall be entitled to assign this Agreement to a successor in the event of a merger or purchase of the control in Company's shares or substantially all of the assets of Company and Company shall be entitled to assign all its rights and obligations under this Agreement to a fully owned subsidiary of Company.  

Any notices hereunder shall be in writing and sent to the other party at its address set forth above, or email below, all of which may be changed upon written notice to the other party. Notices shall be deemed received five days after mailing by registered mail, or the next business day following delivery confirmation, or email, delivery receipt confirmed.

This Agreement and performance hereunder shall be governed by and construed in accordance with the laws of the State of Israel. Any action by either party against the other shall be brought exclusively in the applicable courts in Tel Aviv, Israel. Each party acknowledges that it has read, fully understands and agrees to be bound by this Agreement, and further agrees that it is the complete and exclusive statement of the agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to the subject matter of this Agreement. This Agreement may not be modified or altered except by a written instrument duly executed by both parties.  If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby. The failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any right hereunder. Any notice, request, instruction, or other document to be given hereunder by any party hereto to any other party hereto shall be in writing and delivered personally or sent by email, to the other party’s designated contact. Any notice that is delivered in the manner provided herein shall be deemed to have been duly given to the party to whom it is directed upon actual receipt by such party (or its agent for notices hereunder.