END USER LICENSE AGREEMENT
By signing this agreement and/or accepting this agreement, and/or installing and/or using the software of Mythrealio Ltd. (“Company”) including plugin, system files, tools, related documentation and any Updates thereof that may be provided or made available by Company (“Software”), the counterparty set forth below (such counterparty shall be referred to as “You”) hereby acknowledge that You have read, understood and agreed to all terms and conditions set forth in this agreement (“Agreement”). The signee of this term represents that is has the adequate legal capacity to agree to the terms of this Agreement on Your behalf and accordingly the signee acceptance creates a legally enforceable obligation of You. Your agreement to these terms also binds Your employees who have been authorized by it to use or to whom You otherwise make available the Software, in accordance with this Agreement (“Authorized Users”). You shall ensure that all your Authorized Users comply with the terms of this Agreement and you shall be liable for any breach thereof by any of your Authorized Users.
- General Restrictions. Except as expressly permitted hereunder, You may not, nor permit anyone else to, directly or indirectly to: (i) distribute, rent, lease, market, sublicense, resell or otherwise transfer the Software and/or Result Data, commercially or otherwise or any manner use the same for commercial or production purposes (ii) copy, modify, translate, or create derivative works of the Software and/or Result Data or any portion thereof either alone or in conjunction with any other product or program, (iii) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, techniques, or algorithms in Software and/or Result Data, (iv) remove any identification, including copyright, trademark, patent or other notices, contained in or on the Software; or make use of such without the prior written consent of Company. ANY RIGHT NOT EXPLICITLY GRANTED TO YOU IS RESERVED TO COMPANY OR ITS LICENSORS.
- Additional Restrictions. In no event You shall be entitled to create and use the Software and the Result Data for any application which is, or any parts thereof are, either (i) copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless You are the owner of such rights; (ii) involve any activity that interferes with, disrupts, damages, or accesses in an unauthorized manner the servers, networks, systems or other properties or services of any person including Company, (iii) would commit or facilitate the commission of a crime, or other tortious, unlawful, or illegal act, or encourages conduct that would be considered illegal or a criminal offense, gives rise to civil liability, or otherwise violates any law, (iv) otherwise malicious or fraudulent, or (v) violates these Terms.
- Updates. Company has no obligation to make available to You any updates, upgrades, modifications, enhancements, supplements and new releases or versions of or to the Software (“Updates”), unless otherwise agreed by You and the Company in writing. However, if Updates are made available to You by Company, (i) You must update the Software accordingly to the latest Update available, (ii) the terms of this Agreement will govern such Updates, unless otherwise has been expressly provided. You agree that if You have not updated the Software more than to 5 versions of Updates available backwards, the Company reserves the right to (i) disable You and the Players from using the Software, (ii) withhold payments the Company is entitled to, (iii) provide no support to any ticket or request made by the You. You agree that the form and nature of the Software may change without prior notice and that future versions of the Software may be incompatible with current.
- Third-Party Software. The Company may utilize, include or otherwise make available to You, in the Software, third-party software’s which are subject to open source and/or third-party license terms (“Third-Party Software”). The right to use Third-Party Software in connection with the Software is subject to and governed by the terms and conditions of the license and/or terms applicable to such Third-Party Software.
- Confidentiality. You acknowledge that You may learn Confidential Information of Company in connection with this Agreement. You agree not to use or disclose such Confidential Information to others without the prior written consent of Company and/or as expressly authorized under a separate NDA that may be executed between us, and to hold such Confidential Information in strict confidence using at least the same degree of care You use to protect Your own Confidential Information of like nature and importance, but no less than a reasonable degree of care. Only Your Authorized Users who have a “need to know” solely with respect to the Purpose may be given access to Company’s Confidential Information, and you are liable for any unauthorized use or disclosure by any of them. You shall immediately notify Company if you discover or suspect any unauthorized use or disclosure of any Confidential Information and shall cooperate with Company to remedy same. “Confidential Information” means this Agreement, any version of the Software and all Updates, Result Data, technology, know-how, algorithms, testing procedures, software, structure, interfaces, specifications, documentation, reports, analysis, benchmarks, performance results, and other information learned or accessed by You pursuant to this Agreement and the Software. Confidential Information does not include information that was demonstrated (i) has become a part of the public domain without any improper action or inaction; (ii) was in Your rightful possession without any obligation of confidentiality to any parties; (iii) was rightfully disclosed to You by a third party without restriction on disclosure; and (iv) to the extent required by law or court order, provided that You shall make reasonable efforts to give Company prior notice of such requirement and shall cooperate with any attempts to obtain a protective order or similar treatment.
- Ownership. Neither party shall have, and nothing herein shall construe to provide, any proprietary or other rights or title whatsoever (including any intellectual property rights) with respect to the other party’s products or technology, which is and shall remain under the exclusive ownership of such party, unless otherwise expressly agreed to by the parties in writing. Without derogating from the aforesaid, Company and/or its licensors, shall exclusively own any and all rights, title and interest, including without limitation any intellectual property rights (including without limitation, patents, copyrights, trademarks, trade names, trade secrets and any other intellectual property rights, as well as any goodwill associated therewith), in and to the Software, Result Data and/or any part thereof and any Updates thereof, including any modification, derivation, updates, upgrades and enhancement thereof, and any related Confidential Information and subject to the aforesaid You shall be strictly licensed to use the Software solely for the Purposes.
- Limitation of Warranty; Disclaimer. The Software is available “as is” for the Purpose only, and accordingly, to the fullest extent permitted by law, Company makes no warranties whatsoever, express or implied, whether oral or written, and Company disclaims all implied warranties including any implied warranty of title, merchantability, or of fitness for a particular purpose as well as any warranties regarding error free operation, security, reliability, timeliness, accuracy, and performance of the Software.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY INCLUDING ITS EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON OUR BEHALF, WILL NOT BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE DAMAGES, LOSSES (INCLUDING LOSS OF PROFIT AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT, CONTRACT, OR IN ANY OTHER FORM OR THEORY OF LIABILITY, ARISING FROM, OR IN CONNECTION, WITH THIS AGREEMENT OR THE SOFTWARE. THE TOTAL AND AGGREGATE LIABILITY OF EITHER PARTY (AND ITS RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON THEIR BEHALF) TO THE OTHER PARTY FOR DIRECT DAMAGES ARISING OUT OF, OR RELATED TO, THIS AGREEMENT OR THE SOFTWARE SHALL BE LIMITED TO THE ROYALTIES PAYABLE TO THE COMPANY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT PURPORTEDLY GIVING RISE TO THE FIRST CLAIM MADE HEREUNDER (“LIABILITY CAP”). NOTWITHSTANDING THE ABOVE, THE LIMITATIONS OF THIS ENTIRE SECTION SHALL NOT APPLY IN THE EVENT OF INTENTIONAL MISCONDUCT, CONFIDENTIALITY OBLIGATIONS HEREUNDER, YOUR PAYMENT OBLIGATIONS FOR THE APPLICABLE ROYALTIES HEREUNDER, EITHER PARTY’S BREACH OF SECTION 7 (OWNERSHIP), OR YOUR BREACH OF SECTIONS 2-3 (RESTRICTIONS) SHALL NOT BE SUBJECT TO THE LIABILITY CAP.
- Termination; Effect of Termination. This Agreement and all rights granted under it by Company will automatically terminate without notice from Company if You or any Authorized Users fail to comply with any term(s) of this Agreement. Notwithstanding anything to the contrary hereunder, either party may terminate this Agreement, effective thirty (30) days after providing written notice to the other party, provided however that for as long as You are provided with the Software for trial without payment obligations (“Trial Period”) either party may terminate this Agreement upon written notice with immediate effect. Upon termination of this Agreement, all rights granted to You under this Agreement will immediately terminate and You shall cease any use of the Software and/or Result Data immediately and will erase and destroy all copies of Confidential Information (including Software and Result Data) in Your and Your Authorized Users possession or control. The Company is entitled to deactivate the Software and/or block the use of the Software by each Player upon such termination. The provisions of sections 6 to 12 shall survive any termination of this Agreement. Termination is without prejudice to all other remedies available to the Company by law or under this Agreement.
- Royalties. The Software is currently provided to You free of charge and royalty-free for a Trial Period which shall commence as of the date hereof and shall terminate in accordance with the provisions of section 9 above; however, in the event that in the future Company shall elect to terminate the Trial Period and/or shall elect to charge for the use of the Software and the Result Data, at Company’s sole discretion, (“Commercial Use”), Your usage, shall be subject to Your agreement to pay monthly royalties to the Company per each Monthly Active Player (as defined below) in an amount to be agreed by You and the Company (“Royalties”). “Monthly Active Player” shall mean a player which preform a Player Use, at least one time during the applicable month. The Royalties shall be paid by no later than 5 working days as of the beginning of each applicable month, for the preceding month. Royalties are exclusive of all taxes and applicable taxes, if any shall be added by You.
- Feedback. You may (but are not required to) provide to Company feedback, comments and suggestions for the modification, correction, improvement or enhancement of (a) the Software or (b) products or processes which work or interact with the Software (“Feedback”). You hereby grant to Company a non-exclusive, perpetual, paid-up, transferable, sub-licensable, worldwide license to use, disclose and exploit all intellectual property rights in such Feedback for any purpose.
- Miscellaneous. This Agreement is the entire and exclusive agreement between Company and You regarding the subject matter set forth herein, replaces and supersedes all prior negotiations, dealings, and agreements, whether oral or written, with respect thereof and may be amended only by a writing signed by authorized representatives of both parties. Nothing in this Agreement shall be construed as an obligation by either party to enter into a contract, subcontract, or other business relationship with the other party. This Agreement does not create any agency, partnership, or joint venture relationship between Company and You. This Agreement is governed by the law of the State of Israel. You may not assign this Agreement without the prior written consent of Company. Company shall have the right to assign its right or delegate its obligations or any part thereof under this Agreement without Your consent. Subject to the aforesaid, this Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.