EFFECTIVE: SEPTEMBER 10, 2014
1.1. Your use of the CommuniTake Technologies Inc. (“CommuniTake” “us,” “we,” or “our”) website; www.communitake.com (together with the other websites we may own and control (the “Website”) and our Services (as defined in Section 2.1.10 below) is subject to our terms and conditions of use (the “Terms”) set out below. By using the Website, and the Service, whether in connection with a paid subscription to the Service, free access to the Service, or through a free trial of the Service, you are agreeing, and you are signifying your agreement, to be bound by the Terms. If you do not accept the Terms, you should not use the Website.
1.2. You are solely responsible for ensuring that use of the Website and our Services to store and transmit your data is compliant with all applicable laws and regulations. You also maintain all responsibility for determining whether the Website or our Services the information generated thereby is accurate or sufficient for your purposes.
2.1. When used in these Terms with the initial letters capitalized, in addition to terms defined elsewhere in these Terms, the following terms have the following meanings:
2.1.1. Account. All CommuniTake accounts or instances created by you, whether through your Contract or otherwise.
2.1.2. Agent. An individual authorized to use the Service through your Account as an agent and/or administrator as identified through a unique login.
2.1.3. API. The application programming interfaces developed and enabled by CommuniTake that permits you to access certain functionality provided by the Service, including without limitation, the CommuniTake API that enables the interaction with a CommuniTake instance automatically or on-demand and the CommuniTake application development API that enables the integration of a CommuniTake instance with other web applications.
2.1.4. Confidential Information. All information disclosed by you to CommuniTake or by CommuniTake to you which is in tangible form and labelled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these Terms; or (d) was or is independently developed by the receiving party without use of the disclosing party’s Confidential Information.
2.1.5. Contract. Any agreement that may have been executed between CommuniTake and you that relates to the Service provided by CommuniTake to you.
2.1.6. Documentation. Any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Service provided or made available by CommuniTake to You, Agents or End-Users through the Site or otherwise.
2.1.7. End-User: means any person or entity other than a subscriber or Agent with whom subscriber or its Agent interacts using the Service.
2.1.8. Form. Any CommuniTake generated service order form executed or approved by you with respect to your subscription to the Service, which may detail, among other things, the number of individuals or devices authorized to use the Service under your subscription to the Service and the Service Plan applicable to your subscription to the Service.
2.1.9. Other Services. Third party products, applications, services, software, products, networks, systems, directories, websites, databases and information which the Service links to, or which you may connect to or enable in conjunction with the Service, including, without limitation, certain Other Services which may be integrated directly into your CommuniTake Service.
2.1.10. Service. Any service provided by CommuniTake, including but not limited to the CommuniTake Total Care solution or its sub-components, the CommuniTake Enterprise Mobility solution or its sub-components, the Machine Care solution or its sub-components, the CommuniTake Intact solution or its sub-components, the CommuniTake InStore solution and any sub services / offerings that are derived from it as well as tools provided by CommuniTake, individually and collectively Software and APIs and any Documentation. Any new or modified features added to or augmenting the Service or updates or enhancements to the Service (“Updates”) are also subject to these Terms and we reserve the right to deploy Updates at any time.
2.1.11. Service Plan. The service plan and the functionality and services associated therewith (as detailed on the Website and in your Contract) for which you subscribe.
2.1.12. Software. Software provided by CommuniTake (either by download or access through the internet) that allows you to use any functionality in connection with the Service.
2.1.13. Subscription Term. The period during which you have agreed to subscribe to the Service in accordance with your Contract.
2.1.14. You. “You” may also include any Agent or End-User, as well as any company, organization or other legal entity (the “Entities”), authorized to use the Service through your Account. You are agreeing to these Terms on behalf of such individuals and Entities. You represent to CommuniTake that you have the authority to bind such Entity and its affiliates to these Terms. If you do not have such authority, or if you do not agree with these Terms, you must not accept these Terms and may not use the Service. You are responsible for compliance with the provisions of these Terms by Agents, End Users and Entities and for any and all activities that occur under your Account, as well as for all your data.
2.1.15. Your Data. All electronic data, text, messages or other materials submitted to the Service by you in connection with your use of the Service.
3. CommuniTake Account.
3.1. Your CommuniTake Account (the “Account”) whether in accordance with your Contract or otherwise, includes Agents and Entities permitted access under the Account. Access to and use of the Service is restricted to these Agents and Entities who will be identified by a unique username and password (“Login”) which may only be used by them and may not be disclosed to any third party.
3.2. The information you provide us regarding your Account, will be true, current and accurate information. You will update CommuniTake without any delay in order to maintain accurate and current information.
3.3. You agree to notify CommuniTake immediately if you become aware of any security breach in relation to your account.
3.4. You agree to be solely responsible for all activities with respect to your Account and password. CommuniTake will not be responsible for any damage that may occur if you fail to comply with these requirements.
3.5. If CommuniTake suspects you are violating our Terms, CommuniTake will have the exclusive right, without prior notice to you, to change your name, password and delete your information from our Service as well as deny you access to our Service.
4. Data Privacy and Security; Confidentiality.
4.2. Except as otherwise expressly permitted pursuant to these Terms, each of us may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under these Terms and shall disclose such Confidential Information solely to those of our respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information.
5. License and Site Access.
5.1. During the Subscription Term and subject to your compliance with these Terms, CommuniTake grants you a limited license to access and make personal use of the CommuniTake Service consistent with the Service Plan you subscribe to.
5.2. Without limiting the foregoing, your right to access and use the API is also subject to the restrictions and policies implemented by CommuniTake from time to time with respect to the API as set forth in the Documentation or otherwise communicated to you in writing.
5.3. You are not granted any right and/or license, or ownership including any applications, software, codes, scripts, productions, source codes, photographs, graphics, images, illustrations, written content, logos, trade-marks, design copyright, trade mark and other intellectual property rights to any content, other than as explicitly set forth in these Terms. All such materials are the property of us or our partners and are protected by our copyrights or trademarks or those of our partners.
5.4. You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, in furtherance of your internal business purposes as expressly permitted by these Terms; (b) use the Service to process data on behalf of any third party; (c) modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (d) falsely imply any sponsorship or association with CommuniTake, (e) use the Service in any unlawful manner, including but not limited to violation of any person’s privacy rights; (f) use the Service to send unsolicited or unauthorized junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (h) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service; (j) use the Service to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libellous, obscene, or discriminatory; (k) use the Service to store or transmit any protected health information; (l) use the Service to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); or (m) try to use, or use the Service in violation of these Terms.
6. Intellectual Property Rights.
Each of us shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to you to use the Service under these Terms do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service as expressly herein, all rights, title and interest in and to the Service and all hardware, software and other components of or used to provide the Service, including all related intellectual property rights, will remain with and belong exclusively to CommuniTake. CommuniTake shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from you. CommuniTake®, and CommuniTake’s other product and service names, and logos used or displayed on the Service are registered or unregistered trademarks of CommuniTake (collectively, “Marks”), and you may only use such Marks to identify you as a subscriber; provided you do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent CommuniTake, its services or products.
7. Billing, plan modifications and payments.
7.1. Unless otherwise indicated in your Contract or Documentation and subject to Section 7.2, all charges associated with your access to and use of the Service (“Subscription Charges”) are due in full upon commencement of your Subscription Term. If you fail to pay your Subscription Charges or charges for other services within five (5) business days of our notice to you that payment is due or delinquent, or if you do not update payment information upon our request, in addition to our other remedies, we may suspend or terminate your access to and use of the Service.
7.2. If you choose to upgrade your Service Plan or increase the number of authorized Agents or End Users during Your Subscription Term (“Subscription Upgrade”), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of your then current Subscription Term, charged to your Account and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, your Subscription Charges will reflect any such Subscription Upgrades.
7.3. No refunds or credits for Subscription Charges or other fees or payments will be provided to you if you elect to downgrade your Service Plan. Downgrading your Service Plan may cause loss of content, features, or capacity of the Service as available to you under your Account, and CommuniTake does not accept any liability for such loss. CommuniTake reserves the right to contact you about special pricing if you maintain an exceptionally high number of End Users, an unusually high monthly ticket ratio per agent, an unusually high level of open tickets, an exceptionally high number of devices, an exceptionally high number of collaborative support instances, an exceptionally high number of auto-repair instances, an exceptionally high number of dropped calls, an exceptionally high number of repair notifications or other excessive stress on the Service.
7.4. Unless otherwise stated, our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against CommuniTake based on its income. We will invoice you for such Taxes if we believe we have a legal obligation to do so and you agree to pay such Taxes if so invoiced.
7.5. If you pay by credit card, the Service provides an ability for the account owner to change credit card information (e.g. upon card renewal). The Account owner will receive a receipt upon each receipt of payment by CommuniTake, or they may obtain a receipt from within the Service to track subscription status.
8. Third party links and services.
8.1. Our Websites and Services may include hyperlinks to other websites that are not owned or controlled by CommuniTake. We have no control over, and are not responsible for these links nor their content policies, or websites. You acknowledge and agree that CommuniTake does not endorse these external websites or the material available from such websites or resources. You acknowledge and agree that CommuniTake is not liable for any loss or damages whatsoever caused by these websites. We recommend you read the terms and conditions of other websites that you access. If you decide to enable, access or use Other Services, be advised that your access and use of such Other Services is governed solely by the terms and conditions of such Other Services, and we do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Other Services, including, without limitation, their content or the manner in which they handle data (including your data) or any interaction between you and the provider of such Other Services. You irrevocably waive any claim against CommuniTake with respect to such Other Services. CommuniTake is not liable for any damage or loss caused or alleged to be caused by or in connection with your enablement, access or use of any such Other Services, or your reliance on the privacy practices, data security processes or other policies of such Other Services. You may be required to register for or log into such Other Services on their respective websites. By enabling any Other Services, you are expressly permitting CommuniTake to disclose your Login as well as your data as necessary to facilitate the use or enablement of such Other Service.
9. Cancellation termination and suspension of Account.
9.1. Either you or CommuniTake may elect to terminate your Account and subscription to the Service as of the end of your then current Subscription Term by providing notice, in accordance with these Terms, on or prior to the date thirty (30) days preceding the end of such Subscription Term. Unless your Account and subscription to the Service is so terminated, your subscription to the Service will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in any Form, the Subscription Charges applicable to your subscription to the Service for any such subsequent Subscription Term shall be our standard Subscription Charges for the Service Plan to which you have subscribed as of the time such subsequent Subscription Term commences.
9.2. No refunds or credits for Subscription Charges or other fees or payments will be provided to you if you elect to terminate your subscription to the Service or cancel your Account prior to the end of your then effective Subscription Term. Following the termination or cancellation of your subscription to the Service and/or Account, we reserve the right to delete all your data in the normal course of operation. Your data cannot be recovered once your Account is cancelled.
9.3. If you terminate your subscription to the Service or cancel your Account prior to the end of your then effective Subscription Term or we effect such termination or cancellation pursuant to Section 9.1 or 9.5, in addition to other amounts you may owe CommuniTake, you must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term. This amount will not be payable by you in the event you terminate your subscription to the Service or cancel your Account as a result of a material breach of these Terms by CommuniTake, provided that you provide advance notice of such breach to CommuniTake and afford CommuniTake not less than thirty (30) days to reasonably cure such breach.
9.4. CommuniTake reserves the right, in CommuniTake’s reasonable discretion, to temporarily suspend your access to and use of the Service: (a) during planned downtime for upgrades and maintenance to the Service (of which CommuniTake will use commercially reasonable efforts to notify you in advance both through our forum page and a notice to your Account owner and agents) (“Planned Downtime”); (b) during any unavailability caused by circumstances beyond our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond our reasonable control (including, without limitation, inability to access the internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks. We will use commercially reasonable efforts to schedule Planned Downtime for weekends (Central European Time) and other off-peak hours.
9.5. CommuniTake reserves the right to modify, suspend or terminate the Service (or any part thereof), your Account or your rights to access and use the Service, and remove, disable and discard any of your Data if we believe that you have violated these Terms; or (c) if we suspect or detect any Malicious Software connected to your Account or use of the Service by you. Unless legally prohibited from doing so, CommuniTake will use commercially reasonable efforts to contact you directly via email to notify you when taking any of the foregoing actions. CommuniTake shall not be liable to you or any other third party for any such modification, suspension or discontinuation of your rights to access and use the Service. Any suspected fraudulent, abusive, or illegal activity by you may be referred to law enforcement authorities at our sole discretion.
10. Disclaimer of Warranties.
10.1. THE SITE AND THE SERVICE, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND COMMUNITAKE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT COMMUNITAKE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM COMMUNITAKE OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
10.2. A high speed internet connection is required for proper transmission of the Service. You are responsible for procuring and maintaining the network connections that connect your network to the Service, including, but not limited to, “browser” software that supports protocols used by CommuniTake, including Secure Socket Layer (SSL) protocol or other protocols accepted by CommuniTake, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying you of any upgrades, fixes or enhancements to any such software or for any compromise of data, including your data, transmitted across computer networks, wireless networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by CommuniTake. We assume no responsibility for the reliability or performance of any connections as described in this section.
10.3. The product may include programs or code that are licensed under an Open Source Software (“OSS”) license model. OSS programs and code are subject to the terms, conditions and obligations of the applicable OSS license, and are SPECIFICALLY EXCLUDED FROM ALL WARRANTY AND SUPPORT OBLIGATIONS DESCRIBED ELSEWHERE IN THIS AGREEMENT.
11. Limitation of Liability.
11.1. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
11.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, COMMUNITAKE’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THESE TERMS OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OR EMPLOYMENT OF THE SERVICE, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 11.2 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF COMMUNITAKE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. COMMUNITAKE HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICE PROVIDED FOR IN THESE TERMS.
11.3. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE JURISDICTIONS, COMMUNITAKE’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
12. Indemnification. You will indemnify and hold CommuniTake harmless against any claim brought by a third party against CommuniTake arising from or related to use of the Service by you, Agents or End Users in breach of these Terms or matters which you have expressly agreed to be responsible pursuant to these Terms.
13.1. Assignment. You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of these Terms or your rights under these Terms or delegate performance of your duties under these Terms without CommuniTake’s prior consent, which consent will not be unreasonably withheld. We may, without your consent, assign our agreement with you to any affiliate or in connection with any merger or change of control of CommuniTake or the sale of all or substantially all of our assets provided that any such successor agrees to fulfil its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
13.2. Entire Agreement. These Terms, together with your Contract, constitute the entire agreement, and supersede any and all prior agreements between you and CommuniTake with regard to the subject matter hereof. We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. Your continued use of the Service following the effective date of any such amendment may be relied upon by CommuniTake as your consent to any such amendment. CommuniTake’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.
13.3. Severability. If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
13.4. Relationship of the Parties. The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
13.5. Survival. Sections 1, 2, 4, 6 and 10-14 shall survive any termination of our agreement with respect to your use of the Service. Termination of such agreement shall not limit your or CommuniTake’s liability for obligations accrued as of or prior to such termination or for any breach of these Terms.
13.6. Notice. All notices to be provided by CommuniTake to you under these Terms may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) to the contact mailing address provided by you in your Contract or on any Form; or (ii) electronic mail to the electronic mail address provided for your Account owner. You must give notice to us in writing by Courier or Israel Mail to the following address: CommuniTake Technologies, Inc., Attn: Legal Department, Yokneam Star Building, High-Tech Park, Yokneam Israel 2069205. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
13.7. Governing Law. These Terms shall be governed by the laws of Israel without regard to conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of the courts of Israel, for the purpose of resolving any dispute relating to the Terms or access to or use of the Service by you.