Terms and Conditions
These Terms and Conditions (“Terms”) shall apply to customer’s (“Customer”) use of Data Science Consulting Group Ltd. Ltd. (“DSG”) proprietary Platform and Services (as such terms are defined below) either identified in one or more price proposals signed by the parties (each an “Proposal”). These Terms and all executed Proposals (collectively referred to as the “Agreement”) represent the parties’ entire understanding regarding the Platform and Services and shall govern over any different or additional terms of any order document and no terms included in any such document shall apply to the Services unless such different terms are stated specifically in a mutually signed Proposal.
Upon the earlier of, Customer executing a Proposal or checking “I accept” where applicable and/or upon its access and/or use of the Platform (as defined below), Customer acknowledges that it has read this Agreement, understands them, and agrees to be bound by them. If Customer does not agree to any of the terms below, DSG may be unwilling to grant Customer access to the Platform. If Customer is unwilling to accept all of the terms of this Agreement, it should not check the “I accept” checkbox where applicable and it should exit the Platform.
DSG may update or modify this Agreement and the Platform from time to time. Customer’s continued access and/or use of the Platform following such changes or modifications shall be deemed to be its acceptance of the revised Agreement and/or Platform.
This Agreement governs Customer’s access and use of DSG’s Platform (as defined below) and the provision of the assessment services identified in the Order Form (“Assessment Services”), to the extent applicable. The Platform and the Assessment Services shall collectively be referred to as “Services”.
Capitalized terms used in this Agreement and not otherwise defined herein shall have the respective meanings set forth below.
“Affiliate” means, with respect to any corporate entity, any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such corporate entity. For the purposes of this definition, “control” means the direct or indirect ownership of equal, or more than 50 percent of the outstanding shares or other voting rights entitled to vote for the election of directors.
“Business Day” (whether such phrase is capitalized or not) means any day, other than Friday, Saturday, or any other day on which the banks in Israel are open for business.
“Confidential Information” means all data, specifications, training materials, and other know-how related to the design, use, implementation, performance, manufacture, distribution, or sale of any Platform, as well as all other information and data provided by either party to the other party hereunder in written or other tangible medium and marked as confidential, or if disclosed orally or displayed, identified as confidential prior to or at the time of disclosure, or any information that may reasonably be perceived as confidential, in each case except any portion thereof that: (a) is rightfully known to the receiving party before receipt thereof under this Agreement as evidenced by the receiving Party’s written records; (b) is properly and lawfully disclosed to the receiving Party by a third person who has the legal right to make such disclosure; or (c) is or becomes generally lawfully known in the trade through no fault of the receiving Party.
“Intellectual Property” means intellectual property or proprietary rights of any description including Patent Rights, trademarks, service marks, and registrations thereof and applications therefor, copyrights and copyright registrations and applications, mask works and registrations thereof, know-how, trade secrets, inventions, discoveries, ideas, technology, data, information, processes, drawings, designs, licenses, computer programs and software, and technical information (including information embodied in material specifications, processing instructions, equipment specifications, product specifications, confidential data, electronic files, research notebooks, invention disclosures, research and development reports and the like related thereto), and all amendments, modifications, enhancements, derivatives, and improvements to any of the foregoing.
“DSG Trademarks” means all trademarks, other marks, and trade dress used by DSG to identify the Platform, any other product or service of DSG, or the business identity of DSG.
“Patent Rights” means all patents, patent applications (including any provisionals, continuations, divisionals, continuations-in-part, extensions, renewals, reissues, revivals, and reexaminations, any national phase PCT applications, any PCT international applications, and all foreign counterparts) and rights to file patent applications, any reissues or extensions thereof and any foreign counterparts, divisions, continuations, or continuation-in-part of any applications or substitutes therefor.
“Platform” means the assessAI SAAS platform.
“Work Product” means a report in PDF file format setting forth the results, suggestions, conclusions and recommended tasks provided as part of the Services by DSG in the Platform.
- PLATFORM LICENSE
2.1. Subject to Customer’s compliance with these Terms, including the timely payment of all applicable License and Services Fee (as defined below), DSG hereby grants to Customer an irrevocable, non-exclusive, non-transferable, non-assignable, worldwide license to use the Platform during the Term (as defined below) (the “License”). The License granted hereunder shall not limit DSG’s ability to grant similar or other licenses in respect of the Platform or sell the Platform directly or indirectly.
2.2. Notwithstanding the foregoing, Customer acknowledges and agrees that the Platform may be inaccessible or inoperable at any time and for any reason, including without limitation due to equipment malfunctions, unscheduled maintenance or repairs, or causes that are beyond DSG’s reasonable control or not reasonably foreseeable by DSG, including without limitation interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures.
2.3. DSG shall make commercially reasonable efforts to ensure that the Customer’s access to the Platform, to the extent applicable, will be accessible and functional on a continuous basis. Notwithstanding the above, the Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by DSG or by third-party providers, or because of other causes beyond DSG’s reasonable control, but DSG shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
2.4. Customer is solely responsible for providing equipment, infrastructure, servers and all third-party software and licenses required for its use of the Platform. Customer is responsible for all fees charged by third parties related to its access and use of the Platform (e.g., charges by internet service providers). Customer hereby represents and warrants that it has or will obtain prior to using the Platform any authorizations and consents required in order to use the Platform.
2.5. Customer shall not, and shall not authorize or permit any other third party: (i) to allow anyone other than Customer to access or use the Platform and/or Services; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform; (iv) modify, adapt, or translate the Platform; (v) make any copies of the Platform; (vi) resell, distribute, or sublicense the Platform or use any of the foregoing for the benefit of anyone other than Customer unless expressly provided for in the applicable Proposal; (vii) save, store, or archive any portion of the Platform (including, without limitation, any data contained therein) outside the Platform other than those outputs generated through the intended functionality of the Platform; (viii) remove or modify any proprietary markings or restrictive legends placed on the Platform; (ix) use the Platform and/or Services in violation of any applicable law, or in order to build a competitive product or service; (x) introduce, post, or upload to the Platform any harmful code; or (xi) circumvent any processes, procedures, or technologies that DSG has put in place to safeguard the Platform. Upon DSG’s request, Customer will use commercially reasonable efforts to assist DSG in preventing and enforcing these restrictions.
- ASSESSMENT SERVICES
3.1. To the extent Customer orders the Assessment Services, DSG shall make commercially reasonable efforts to provide the Assessment Services, which may include, but is not limited to, compliance expert consultation and gap analysis, in accordance with the applicable Order Form. Upon completion of the Assessment Services, DSG will provide Customer with relevant findings and recommendations in the form of a Work Product. In the event Customer does not choose to receive the Assessment Services in the applicable Order Form, DSG shall provide Customer with instructions and/or relevant training for use and maintenance of the Platform in order to maintain the Assessment Services independently.
3.2. The Customer will give DSG a specific point of contact that is available and willing to help, as such thing is required to fully operate the Platform and the Services (“Point of Contact”).
3.3. Customer is responsible for providing DSG with access to all essential information, such as records, documentation, sources, platforms and tools as well as access to the Customer’s systems and any additional information that DSG may request for the purpose of performing the Services. The Customer shall make his personnel, including the Point of Contact, fully available to supply any information requested by DSG’s team. The Point of Contact shall be in charge of supplying such information.
- LICENSE FOR EVALUATION
4.1. Company may provide Customer with a limited free license to the Platform for evaluation purposes, subject to the periods and other provisions as provided in the applicable Order Form. It is being clarified that Company may, for such periods and in such scope as it determines in its sole discretion, decide to add or remove certain functionalities and features which Customer may or may not otherwise be entitled to under the Order Form (“Additional Features”). Company may at any time remove, limit and/or change the Additional Features at its sole and absolute discretion without any liability to Company.
- FEES AND PAYMENT TERMS
5.1. In consideration of the grant of the License and the Services, the Customer shall pay DSG such amounts as detailed under the Proposal (the “License and Services Fee”). All payments of the License and Services Fee shall be made in United States Dollars. The License and Services Fee shall be paid regardless of actual use of the Services and shall be non-refundable. DSG shall not be under obligation to refund any License and Services Fee or make any credits for early termination, partial, or no use of the Platform and/or Services.
5.2. Value added tax and other taxes and duties applicable to the License and Services Fee under applicable law shall be added to the License and Services Fee.
5.3. Unless otherwise provided for in the applicable Proposal, the License and Services Fee shall be due and payable to DSG within seven (7) days of the execution of the Proposal.
5.4. Other than the License and Services Fee, the Customer shall not pay DSG any other consideration, remuneration or reimbursement, whether in cash or in kind, with respect to the License, the Platform or the use thereof, unless otherwise indicated under the Proposal and/or agreed between the Parties in writing.
5.5. All payments by Customer that are not paid on or before the date such payments are due under this Agreement shall bear interest of one percent (1%) per month. Interest shall accrue beginning on the first day following the due date for payment and shall be compounded quarterly.
- DATA PROTECTION AND PRIVACY
6.1. Customer acknowledges that the provision of the Services may require DSG to process data that identifies a natural person or can make a natural person identifiable (“Personal Information”) on behalf of Customer. Customer represents that it has all the necessary rights to enable DSG to process the Personal Information on its behalf including, without limitation, when required, any third party’s consent, or to the extent required under any applicable data protection and privacy laws that a legal basis supports the lawfulness of the processing. DSG represents that it will only use such Personal Information processed by it when providing the Services to Customer for the purposes set forth by Customer and shall not use the Personal Information for any other purposes. To the extent Customer is legally required that a data processing agreement shall govern the processing activities conducted by DSG, DSG’s Data Processing Addendum, available at: https://dsg.ai/data-processing-addendum/ shall apply.
- TERM AND TERMINATION
7.1. Term. This Agreement shall be as set in the Proposal, unless otherwise terminated in accordance with the following provisions (the “Initial Term”). Thereafter the Agreement will automatically renew for additional one (1) year periods (each a “Renewal Term” and together with the Initial Term, the “Term”), unless either Party provides written notice to the other Party of its intent not to renew at least thirty (30) days in advance of the expiration of the then-current Term.
7.2. Either party may terminate this Agreement at any time upon 30 days written notice to the other party in the event that the other party shall have breached any of its obligations, representations, or warranties hereunder and shall not have cured such breach within 30 days following the date on which the breaching party has received notice with respect thereto. Such notice shall specify in reasonable detail the nature of the applicable breach.
7.3. DSG may suspend the provision of the Services and/or Customer’s access to the Platform upon prior written notice to Customer if Customer is in breach of this Agreement and/or any payment obligation thereunder.
7.4. Upon termination of this Agreement: (i) DSG will stop providing the Services, and Customer will stop all access to and use of the Platform; (ii) if DSG has terminated this Agreement, Customer will promptly pay all unpaid License and Services Fees and applicable taxes due through the end of the Term; and (iii) upon written request, each party will either return to the disclosing Party (or, at such disclosing Party’s written instruction, destroy and provide such disclosing Party with written certification of the destruction of) all documents, computer files, and other materials containing any of such disclosing Party’s Confidential Information that are in the receiving Party’s possession or control.
- INTELLECTUAL PROPERTY
8.1. DSG Ownership. All right, title and interest to all deliverables, inventions, developments, improvements, mask works, trade secrets, modifications, discoveries, concepts, ideas, techniques, methods, know-how, designs, proprietary information and any work product resulting from the Platform, and all interest therein, whether or not patentable or otherwise protectable, and all intellectual property rights associated therewith, which are invented, made, developed, discovered, conceived or created, in whole or in part by DSG, independently, or jointly with others vests upon their creation solely and exclusively with the Customer and such deliverables will be a work-made-for-hire by DSG (all of the above, the “Work Product”). It is hereby clarified that all rights in any specifications, data and know-how provided or communicated by DSG in the framework of and/or in connection with the Platform are and shall remain vested with and in the sole ownership of DSG.
8.1.1. Notwithstanding anything to the contrary, DSG shall own and retain all rights, title and interest in all DSG’s Intellectual Property, including without limitation, the Platform and the Services, and shall have the sole right, at its option and expense, to file, prosecute and maintain any Intellectual Property right in respect of the aforementioned. To the extent in connection with the provision of the Services or the delivery or production of the Work Product, any intellectual property is created which may be of use to, incorporated into or otherwise desirable for DSG’s Intellectual Property, all rights in such intellectual property including without limitation in any specifications, data and know-how are and shall remain vested with and in the sole ownership of DSG.
8.1.2. DSG shall own and retain all rights, title and interest in all of DSG’s Intellectual Property, including without limitation, the Platform and Services, and shall have the sole right, at its option and expense, to file, prosecute and maintain any Intellectual Property right in respect of the aforementioned.
8.1.3. Customer may provide DSG with feedback concerning the functionality and performance of the Services and Platform, from time to time, as reasonably requested by DSG, including, without limitation identifying potential errors, enhancements, and improvements. Any feedback, suggestions, ideas, or other inputs that Customer provides DSG in connection with the Services may be freely used by DSG to improve or enhance its products and, accordingly, all rights to such improvements and/or enhancements, howsoever arising, including as a result of any ideas, inputs or information provided by Customer as aforesaid, shall vest solely with DSG.
9.1. Confidentiality. Each DSG and Customer acknowledges that in order to satisfy their respective obligations under this Agreement, it will be necessary for the parties to exchange certain Confidential Information. In consideration of the mutual benefits to be derived from the exchange of Confidential Information, DSG and Customer agree as follows:
9.1.1. Confidential Information of a disclosing party shall be treated and safeguarded hereunder by the receiving party for a period of 5 years as of the date of termination hereof and with the same degree of care with which it treats its own Confidential Information. Such receiving party will not use Confidential Information for any purposes other than for the performance of its undertakings hereunder. The receiving party warrants that it applies reasonable safeguard against the unauthorized disclosure and use of Confidential Information.
9.1.2. The receiving party agrees to limit access to the Confidential Information to such employees and consultants of the receiving party who reasonably require such access in connection with the transactions contemplated by this Agreement. To the extent practicable, in the event that the receiving party is required to disclose any Confidential Information pursuant to any law, regulation, or judicial or administrative directive, the receiving party shall promptly notify the disclosing party in order to allow the disclosing party a reasonable period of time to obtain protective or confidential treatment of the Confidential Information before it is disclosed.
9.1.3. The provisions of this Section 9 shall survive any expiration or termination of this Agreement.
- REPRESENTATIONS AND WARRANTIES
10.1. Mutual Representations and Warranties. Each Party hereby represents and warrants that:
10.1.1. It is a duly and validly organized and existing corporation or individual (as applicable) in good standing under the laws of the state of Israel.
10.1.2. The performance of this Agreement and the consummation of the transactions contemplated herein will not result in any breach, conflict, or violation of any terms or provisions of, or constitute a default under, its incorporation documents to the extent applicable, or any material agreement or instrument to which it is a party, by which it is bound, or to which any of its property is subject.
10.1.3. All requisite corporate action has been taken for the due authorization, execution, delivery, and performance of this Agreement by it, and this Agreement constitutes a legally binding obligation, enforceable against such party, in accordance with its terms, except insofar as enforceability may be limited by bankruptcy, insolvency, reorganization, or similar laws affecting the rights of creditors generally.
10.1.4. It is not a party to any litigation relating to, or that could reasonably be expected to adversely affect, its ability to perform its obligations under this Agreement.
10.2. DSG Representations and Warranties.
10.2.1. THE PLATFORM AND SERVICES ARE PROVIDED “AS IS”. CUSTOMER DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS RELATING TO THE PLATFORM AND SERVICES, WHETHER EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, OR FROM A COURSE OF DEALING INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATION, WARRANTY, OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO INFORMATION OR ADVICE GIVEN BY DSG OR ITS AGENTS, EMPLOYEES, OR REPRESENTATIVES, WHETHER ORAL OR WRITTEN, SHALL CREATE ANY REPRESENTATION OR WARRANTY. NONE OF THE SERVICES WILL CONSTITUTE ANY LEGAL OPINION OR ADVICE. THE SERVICE PROVIDED HEREUNDER SHALL NOT BE USED FOR THE PURPOSE OF TESTING COMPLIANCE WITH THE LAWS OR REGULATIONS OF ANY JURISDICTION.
10.2.2. DSG has sufficient right, title, and interest in and to the Platform, Services and in and any associated Patent Rights.
10.2.3. DSG is not aware of any claims, whether threatened or asserted, with regard to DSG’s Intellectual Property or against DSG in connection with DSG’s Intellectual Property.
10.3. Customer Representations and Warranties.
10.3.1. Customer shall reasonably refrain from any actions or conduct that may compromise the validity of DSG’s Intellectual Property.
10.3.2. Customer shall immediately notify DSG of any event in which: (i) it received notice from a third party alleging that DSG;s Intellectual Property or Customer’s use thereof infringes that third party’s intellectual property; or (ii) it becomes aware of a third party infringing DSG’s Intellectual Property. In such cases Customer shall fully cooperate with DSG and share any relevant information it may have in this respect with DSG.
10.4. No Warranties. except as otherwise expressly set forth in this Agreement, the Parties make no representations and extend no warranties of any kind, either express or implied, including any representations or warranties as to merchantability or fitness for a particular purpose.
10.5. Limitation of Liability. DSG and Customer each agree that no Party shall be liable to any other party for any special, consequential, exemplary, or incidental damages (including lost or anticipated revenues or profits relating to the same), arising from any claim relating to this Agreement whether such claim is based on contract, tort (including negligence), or otherwise, even if an authorized representative of such party is advised of the possibility or likelihood of same. The maximum aggregate liability of either Party in respect of all claims arising in connection with this agreement and the transactions contemplated hereby, shall be limited to the aggregate amounts paid by Customer for the Platform during the 12-month period preceding the cause of action.
10.6. Customer understands, acknowledges and agrees that (i) DSG does not provide legal advice or services; (ii) none of the Services will be deemed, construed as, or constitute legal advice; and (iii) DSG is ultimately responsible for retaining its own legal counsel to provide legal advice. Furthermore, the Work Product provided by Customer in connection with the Services will not be deemed to be legal opinions, and may not and should not be relied upon as proof, evidence or any guarantee or assurance as to Customer’s legal or regulatory compliance.
10.7. Customer understands, acknowledges and agrees that DSG’s Services, and the implementation of any suggestions or advice contained in any Work Product, or imparted in the delivery of the Services generally, do not amount to any form of guarantee or assurance on the part of DSG as to the absolute compliance of Customer with any law.
10.8. Under no circumstances, will DSG be considered or held liable for any delay, non-performance and/or non-delivery of any Services, or part thereof, due to insufficient access rights to Customer’s systems.
- GENERAL PROVISIONS
11.1. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Israel, without giving effect to its rules regarding conflicts of laws.
11.2. Venue. The Parties hereby irrevocably submit to the exclusive jurisdiction of the competent courts in Tel-Aviv, Israel and irrevocably waive any claims aimed at disputing the power and authority of such courts to adjudicate any disputes that may arise between the Parties under or in connection with this Agreement. Notwithstanding the aforementioned, each Party may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of this Agreement, if such breach may result in irreparable harm or damage to such Party.
11.3. Waiver. Except as otherwise expressly set forth herein, no provision of or right under this Agreement shall be deemed to have been waived by any act or acquiescence on the part of a party, its agents, or employees, except by an instrument in writing signed by an authorized officer of each party. No waiver by either Party of any breach of this Agreement by the other Party shall be effective as to any other breach, whether of the same term or condition or any other term or condition and whether occurring before or after the date of such waiver.
11.4. Independent Contractors. Each party represents that it is acting on its own behalf as an independent contractor and is not acting as an agent for or on behalf of any third party. This Agreement and the relations hereby established by and between DSG and Customer do not constitute a partnership, joint venture, franchise, agency, or contract of employment.
11.5. Assignment. Neither party may assign its rights or obligations hereunder without the prior written consent of the other; except that either party may assign its rights and obligations hereunder to: (a) its Affiliate; or (b) a purchaser of all or substantially all of its assets or business, without requiring the other party’s consent, subject to a prior notice to the other Party with respect to such purchase. It is understood that either Party may, to the extent not expressly prohibited in this Agreement, from time to time perform some or all of its obligations hereunder through one or more of its Affiliates.
11.6. Successors and Assigns. This Agreement shall bind and inure to the benefit of the Parties and their respective successors and permitted assigns.
11.7. Publicity. Except as is necessary for governmental notification purposes or to comply with applicable laws and regulations or to enforce their respective rights under this Agreement, and except as otherwise agreed to by the Parties in writing, the Parties shall (a) keep the material terms of this Agreement confidential and (b) agree upon the text and the exact timing of any public announcement relating to the transactions contemplated by this Agreement, to the extent relevant.
11.8. Further Assurances; Force Majeure. Each party covenants and agrees that, subsequent to the execution and delivery of this Agreement and without any additional consideration, it will execute and deliver any further legal instruments and perform any acts that are or may become reasonably necessary to effectuate the purposes of this Agreement. Any delay in the performance of any of the duties or obligations of either party shall not be considered a breach of this Agreement and the time required for performance shall be extended for a period equal to the period of such delay; provided that such delay has been caused by or is the result of any act of God, embargo, strike, fire, flood, act of war, epidemic, pandemic or other unforeseeable cause beyond the control and without the fault or negligence of the party so affected (“Force Majeure”), it being clarified that the foregoing shall not apply to any of the Parties’ payment obligation. The party so affected shall give prompt notice to the other party of such cause and shall take whatever reasonable steps are necessary to relieve the effect of such cause as rapidly as possible. In the event that such Force Majeure occurrence shall last for a period of more than 90 days, the non-effected Party shall have the right to terminate this Agreement by delivery of a 90 day prior written notice to the effected Party.
11.9. Notices, etc. All notices and other communications required or permitted hereunder to be given to a Party to this Agreement shall be in writing and shall be e-mailed (provided that written confirmation of receipt is provided), or mailed, postage prepaid, or otherwise delivered by hand or by courier service, addressed to such Party’s address as set forth in the Proposal or at such other address as the Party shall have furnished to each other Party in writing in accordance with this provision. Any notice sent in accordance with this Section shall be deemed received: (i) if delivered in person or by courier service, upon delivery, (ii) if sent by e-mail, on the Business Day following transmission with automatic delivery confirmation, (iii) if sent by registered mail (or air mail if the posting is international), within seven (7) days after posting, or (iv) earlier, upon actual receipt.
11.10. Severability. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other term or provision hereof. The Parties agree that they will negotiate in good faith or will permit a court to replace any provision hereof so held invalid, illegal, or unenforceable with a valid provision that is as similar as possible in substance to the invalid, illegal, or unenforceable provision.
11.11. Headings. Headings of the sections and subsections of this Agreement are for reference purposes only and shall not limit or affect the meaning or construction of the terms and conditions hereof.
11.12. Entire Agreement; Amendment. The terms and provisions contained in this Agreement constitute the entire understanding of the Parties with respect to the transactions and matters contemplated hereby and supersede all previous communications, representations, agreements, and understandings relating to the subject matter hereof. No agreement or understanding amending, supplementing, or extending this Agreement shall be binding upon either Party unless it is in writing and signed by the applicable Party.
11.13. Should Customer have any questions concerning this Agreement, or if Customer desires to contact DSG for any reason, please direct all correspondence to: firstname.lastname@example.org.