License Terms and Conditions
These following terms of license (“Terms and Conditions”) are the legal binding agreement between Visual Factories Ltd. or one of its affiliates, (“VF”) and the respective licensee who purchased the license to use Product (as defined below) under the Proposal (as defined below). Upon execution of the Proposal, you (“you”, “Your”, “Licensee”) agree to these terms and conditions governing the use of the License and the services offered therewith. VF encourages you to read the Terms and Conditions fully and carefully.
1. DEFINITIONS
1.1. “Proposal” means that certain proposal for the license and use of the Product executed by the parties;
1.2. “Infrastructure” means the Licensee’s hardware and software infrastructure which completely adhere to the specifications set forth in the Proposal;
1.3. “Intellectual Property Rights” means all intangible legal rights, titles and interests, including without limitation, all inventions, patents (whether patentable or un-patentable and whether or not reduced to practice), patent applications, trademarks, service marks, trade dress, logos, trade names, and corporate names, domain names, any work of authorship (regardless of copyright ability), copyrights (including moral rights), trade secrets, Confidential Information (as such term is defined below), and all other proprietary rights in whatever form or medium, in each case on a worldwide basis;
1.4. “Product” means VF’s proprietary system, as further set forth in Schedule 1.4 attached hereto, together with accompanying documentation related thereto in addition to software components (“Software”).
2. LICENSE AND INTELLECTUAL PROPERTY RIGHTS
2.1. License. Licensee is granted a fully revocable, non-exclusive, nontransferable, non-assignable, non-sub-licensable, limited to the terms herein, limited license to use the machine readable, object code form only of the Product for Licensee’s internal business purposes in accordance with the VF specifications provided therewith, to install and use the Product solely on the designated equipment at Licensee’s premises and solely for Licensee’s use (“License”).
2.2. Licensee’s Limitations. Other than as explicitly stated in the Proposal, Licensee shall not itself or with the assistance of others and/or shall not allow a third party to: (i) attempt to obtain, receive, review, or otherwise use or have access to the source codes of the Product’s Software (or any part thereof) by decompilation, disassembly or other means; attempt to revise, modify or enhance the Product, or any part thereof, or enable any third party to do the same; (ii) copy, modify or merge the Product, or any part thereof; (iii) sell, license, lease, assign, transfer, pledge, or share the License with/to any third party; (iv) directly or 2 of 12 indirectly, take any action to contest VF’s Intellectual Property Rights or infringe them in any way; and (v) use the name, trademarks, trade-names, and logos of VF in any manner whatsoever.
2.3. Reserved Rights. All rights with respect to the Product, or part thereof, not specifically granted to Licensee hereunder are reserved by VF. All Intellectual Property Rights evidenced by or embodied in or attached, connected and/or related to the Product, and any part thereof, including any and all new versions and/or revisions thereof, and derivative works or inventions relating thereto, are and shall remain in sole ownership of VF, its successors and assigns.
2.4. Third Party Software. If the Product or any part thereof, contains any software provided by any third parties, the Terms and Conditions shall apply to all such third party software as if such software was VF’s.
3. DELIVERY, INSTALLATION AND MAINTENANCE
3.1. Hardware. To the extent agreed that the Licensee requires the Product to include any hardware components, the cost of such hardware shall be borne by the Licensee. Licensee may purchase the hardware directly from the supplier thereof, and to the extent the hardware is purchased from VF, the hardware is purchased “as is” with no warranty whatsoever other than the warranty provided by the manufacture thereof, and VF shall bear no liability with respect to the hardware.
3.2. Infrastructure. It shall be Licensee’s sole responsibility, at its’ owns cost and expense, to acquire the Infrastructure components necessary for the seamless installation and operation of the Product at the Licensee premises.
3.3. Installation. Licensee shall be responsible for installing the Product at the Licensee’s premises and to ensure that the infrastructure is compatible to the requirements as set forth in the Proposal, including the Infrastructure components with respect to the collection of the required data from the Product.
3.4. Maintenance. VF itself and/or through third parties, shall make available and provide the Licensee, timely, professional and adequate Support as set forth in Schedule 3.4 attached hereto (the “Maintenance Services”).
4. PAYMENT
4.1. In consideration for the License granted hereunder, including all Maintenance Services, the Licensee shall pay a monthly fee, per machine, subject to the execution of a minimum order for twelve (12) months from VF, as set forth in the proposal (the “License Fee” and the “Minimum Order”, respectively).
4.2. Payment Terms. The Licensee shall pay the License Fee for the 3 of 12 Minimum Order (i.e., for the 12 months period) within 30 days from the Effective Date. Thereafter, in case of renewal of this Agreement, the Licensee shall pay the License Fee for the Minimum Order within 30 days from the commencement of any Additional Terms (as defined below).
4.3. Taxes. VF’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Licensee is responsible for paying all Taxes associated with its payments hereunder. If VF has the legal obligation to pay or collect Taxes for which Licensee is responsible, VF will invoice Licensee and Licensee will pay such amount unless it provides VF with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.4. Payment. Payment due to VF in consideration of the License shall be made by wire transfer to VF’s account (the details of which shall be provided by VF in writing from time to time). Wire transfer costs shall be borne by Licensee.
5. Data Security and Personal Data
5.1. In the event that the Licensee informs VF in writing that the General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27.4.2016, the “GDPR”) applies to it, the provisions of Schedule 5.1 shall apply and are hereby deemed incorporated herein as an integral part hereof.
5.2. Licensee hereby confirms that to the extent the GDPR applies to it, Licensee is the sole “controller” (as defined in the GDPR) with respect to the Product, its use thereof the services granted under this Agreement, and any processing (as such term is defined in the GDPR) of the Personal Data (as defined below).
5.3. Licensee hereby warrants to VF that it has obtained the consent of all persons whose personal data (as defined in the GDPR) is [uploaded / entered] by Licensee to the [Product/Software] (the “Personal Data”).
5.4. VF’s Data Security Policy is attached hereto as Schedule 5.4 (the “Data Security Policy”), and may be amended by VF from time to time. VF shall use its best commercial efforts to ensure that the Data Security Policy shall be upheld at all times during the Term (as defined below). VF may make any change to its Data Security Policy, provided it informs the Licensee in writing of any material change thereto at least 30 days prior to such change entering into effect.
5.5. VF hereby confirms that the Product supports the requirements described in Schedule 5.5 with respect to Personal Data. 4 of 12
5.6. All information and data uploaded by or on behalf of the Licensee to the Product, and/or generated using the Software (including any information contained in the reports received by the Licensee) (“Licensee Data”), are the sole property of the Licensee. Notwithstanding the aforesaid, VF retains the right to use Licensee Date in the form of anonymous, aggregate statistics for analysis, AI, product improvements and other uses, all subject to VF maintaining the Licensee Data only in forms that do not reveal Licensee or its employees identity and do not reveal Licensee confidential information.
6. CONFIDENTIAL INFORMATION
6.1. Confidential Information. “Confidential Information” shall mean, without limitation, any data or information of VF, not made available to the general public, oral, written or electronic, or learnt by VAR, and including without limitation, past, present, and future research, development, inventions, processes, plans, business activities and business plans, financial and/or legal and/or contractual information (including the Terms and Conditions), customer list and price list, information relating to developments, customer and supplier lists, forecasts, and projections, as well as the Product related documentation and any modifications, enhancements and derivative works thereof.
6.2. Undertakings. Licensee will take appropriate steps to protect such Confidential Information from unauthorized disclosure, that it will not disclose such Confidential Information to any third party other than those of its employees on a “need to know” basis, who are bound by confidentiality obligations no less restrictive than those set forth herein, and that it will not use any Confidential Information (other than as authorized herein) without the prior written consent of VF. Licensee’s obligations with respect to Confidential Information shall continue until such information becomes publicly known (other than due to breach of the Terms and Conditions Licensee). Licensee hereby acknowledges that unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to VF that may be difficult to ascertain. Accordingly, Licensee agrees that VF, in addition to any other right or remedy that it may have available to it at law or in equity, will have the right to seek immediate injunctive relief to enforce obligations under the Terms and Conditions without the necessity of proving actual damages.
6.3. Publications. Licensee hereby agrees that VF mention Licensee in publications related to VF and/or the Product, as a customer of its Products.
7. WARRANTIES AND LIABILITY
7.1. LIMITED WARRANTY. VF warrants that during the term of this Agreement, the Product shall substantially conform to its written specifications (effective upon installation, subject to updated 5 of 12 provided by VF), subject however to all limitations provided herein (the “Warranty”). VF makes no warranty that the Product software shall be free from bugs, however in the event that any bugs are detected, VF shall provide the respective Maintenance Services in accordance with the terms set forth in the Proposal. The parties acknowledge that the Product is inherently complex and may not be completely free of errors. Licensee understands and agrees that no data transmission over the Internet or information storage technology can be guaranteed to be completely secure, and VF expressly disclaims any warranties, express or implied, to that effect. Other than the Limited Warranty.
VF MAKES NO WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE PRODUCT. VF DISCLAIMS AND EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE INFORMATION PROVIDED UNDER THE PROPOSAL SHALL BE READ AS A GENERAL STATEMENT AND NOT AS A REPRESENTATION AND/OR WARRANTY OF ANY KIND BY VF. VF SHALL NOT BE LIABLE TO LICENSEE, OR ANY THIRD PARTIES FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGE OR INJURY TO BUSINESS EARNINGS, LOST PROFITS OR GOODWILL AND PERSONAL INJURY, SUFFERED BY ANY PERSON ARISING FROM AND/OR RELATED AND/OR CONNECTED TO THIS AGREEMENT OR TO THE PRODUCT, EVEN IF VF IS ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. VF DOES NOT, AND CANNOT, CONTROL THE FLOW OF DATA TO OR FROM LICENSEE’S INTERNET HOSTS AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS CAUSED BY THESE THIRD PARTIES CAN PRODUCE SITUATIONS DURING WHICH LICENSEE’S CONNECTION TO THE INTERNET (OR PORTIONS THEREOF) MAY BE IMPAIRED OR DISRUPTED. VF DOES NOT GUARANTEE THAT SUCH DISRUPTIONS OR IMPAIRMENTS WILL NOT OCCUR. ACCORDINGLY, VF DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
7.2. Exclusions. Without derogating from the generality of the aforesaid, Licensee acknowledges that VF shall have no liability whatsoever and its Warranties with respect to the Product shall be void in one or more of the following: (i) the misuse, improper use, alteration, or damage of the Product, or any part thereof, including the failure to use the Product in accordance with VF’s then current published environmental conditions (including, without limitation, specified electric power and/or supplies); (ii) the combination or merging of the Product, or any part thereof, with any hardware or software not supplied or specifically identified as compatible by VF; (iii) natural disasters, including fire, smoke, water, earthquakes or lightening; (iv) electrical power fluctuations or failures; or (v) malfunctions of the Customer’s Infrastructure and/or hardware equipment; or (vi) any malfunctions in connection to the 6 of 12 installation of the Infrastructure and any data generated as a result therewith; or (vii) any malfunctions of the Product generated as a result of poor internet connection and/or no internet connection at the Customer’s site.
7.3. Maximum Liability Amount. If VF is found liable for damages of any kind (including liability for negligence) related to the product and/or these Terms and Conditions, VF’s total aggregate liability for such damages will be limited to the remedies specified in these Terms and Conditions and/or the applicable purchase order executed by the Licensee (“PO”) and shall not exceed the amount of fees paid by Licensee to VF during the six (6) months preceding the event giving rise to the liability.
8. TERM AND TERMINATION
8.1. Term. The License shall come into force as of the acceptance and signing of the Proposal by Licensee and shall continue for a period of twelve (12) months (the “Initial Term”). The Initial Term may be extended by a written consent of both Parties for additional terms, each for a twelve (12) month period each (the “Additional Terms”). The Initial Term together with the Additional Terms shall be jointly referred to in this Agreement as the “Term”.
8.2. Termination for Breach. VF may immediately terminate the License and the provision of maintenance and support to the Licensee, at any time by giving written notice to the Licensee in the event of breach or default of any provision herein, and the Licensee fails to cure the breach or default within thirty (30) days after being given written notice specifying details of the breach or default and requiring the same to be remedied and in the event of a delay in payment by Licensee in excess of fifteen (15) days and failure to cure such breach within seven (7) days.
8.3. Consequence of Expiration or Termination. Upon the expiration or termination of the License all Licenses granted hereunder shall cease to exist and Licensee shall: (i) promptly return to VF all tangible property representing VF’s Confidential Information and all copies thereof and/or Intellectual Property and delete or destroy all intangible copies of such items, and confirm such actions in writing to VF; (ii) cease any use of the Product; and (iii) uninstall the Product at Licensee’s premises;. It is hereby clarified that the Software shall automatically cease to operate upon termination of this Agreement and the Licensee shall no longer have access to any Licensee Data which is not stored by Licensee in its own servers.
8.4. Survival. Notwithstanding any termination of this Agreement Sections: 1, 2.2, 2.4, 5.2, 5.3, 5.6, 6, 8.3 and 9.2 shall survive and continue to be in effect in accordance with their terms. 7 of 12
9. GENERAL PROVISIONS
9.1. Amendments, Conflicts. No provision in the Proposal and/or the PO (unless otherwise specifically stated therein) will supersede the Terms and Conditions and the Terms and Conditions will prevail in case of discrepancy.
9.2. Governing Law and Jurisdiction. The Terms and Conditions, Proposal and/or PO shall be construed and governed exclusively in accordance with the laws of the State of Israel, excluding its conflict of law provisions, and only the courts in Tel Aviv, Israel shall have jurisdiction in any conflict or dispute arising hereof. 8 of 12
SCHEDULE 1.4 – PRODUCT: The VF Product – incorporates Industrial Internet of Things (IIoT) infrastructure with cloud based analytics platform and Gamification UX.
VF main applications:
1. Automated data capturing infrastructure
2. Performance analysis of time usages, P/N’s and work orders
3. Real-time global management view of machines’ performance
4. Real-time operator interface
5. Configurable automatic alerts
6. Automatic in-mail snapshot of last 24 hours
7. Automatic daily productivity and OEE PDF reports
8. Automatic monthly continuous improvement PDF report
9. Analysis web site for custom reports generation
9 of 12
SCHEDULE 3.4 – MAINTENANCE SERVICES
1. Scope. Subject to receipt of the License Fee, VF shall provide Licensee the following services:
- Remote control assistance via VPN or Team Viewer access to all system components
- Proper function verification to all system services and processes
- Version updates for maintenance and improvement purposes
- Answering operational and training questions on system usage
- Backup for system applications and databases
- Remote support in the event that Licensee cannot solve such errors pursuant to investing best efforts and if Licensee advises VF via e-mail of the exact nature of the problem within [24 hours] of its occurrence.
- Remote Access. To enable VF to provide Licensee with the most adequate Remote Support and as a condition thereto, VF uses a remote maintenance operation, which enables VF to view the Product, as well as the Customer infrastructure, files and logs and to extract the necessary information to provide the maintenance services (“Remote Access Services”). VF cannot guarantee that no breach whatsoever of security shall occur. The Remote Access Services provide VF similar troubleshooting capabilities to an on-site visit of VF’s personnel, with the major advantage of an immediate and prompt reply by a variety of VF experts. Licensee shall provide VF with remote access to the Product and Infrastructure, files and logs to enable VF to provide such Remote Access Services. Licensee understands and agrees that in the event that such remote access is denied or unavailable, VF cannot commit to the time frames pertaining to Error response and solution as set forth hereunder, or to the provision of any services set forth herein. The Remote Access Services do not include traveling to the production sites and proper function of the computers, hardware elements and the communication system between them at the production sites.
2. Updates and New Releases. During the term of the License Agreement, VF will provide Licensee with Updates free of charge. Any new release, when generally made available by VF, will be offered by VF to Licensee subject to an additional charge. The determination whether a new release, modification, revision, improvement and/or change in or to the Product should be classified as a “new release” or “update” will be made by VF at its sole and exclusive discretion.
3. Response Time and Error Correction. VF shall exercise all commercially reasonable efforts to respond initially to all queries made by Licensee as set forth below:
| Error Type | First Response Time |
| Critical Error (defined according to customary market values) | Within four (4) hours during the Service Time |
| Non-Critical Error | Within two (2) working days |
Licensee shall advise VF of all errors via e-mail and/or telephone. Only Critical Errors may be advised by phone.
4. On Site Support. In the event that remote support fails, despite its best efforts to do so, to resolve a critical or non-critical error and Licensee’s personnel have made all reasonable efforts based on instructions from VF’s engineers to resolve such problems, VF shall dispatch an engineer to the site, provided that Licensee shall reimburse VF for all reasonable expenses. Actual time of arrival at the Licensee site will be subject to air transportation availability. At all times, VF’s engineer must be accompanied on site by Licensee project supervisor or engineer.
5. Service Time
VF Support center working hours: Monday to Friday 3:00 am – 5:00 pm US EST Hours.
* After working hours support will be given to urgent cases only. 10 of 12
SCHEDULE 5.1 – GDPR INCORPORATED PROVISIONS
1) All Capitalized terms shall have the meaning ascribed to them in the Agreement; all other terms used in this Schedule shall have the meaning ascribed to them under the GDPR.
2) The type of Personal Data collected in the Software and the categories of data subjects are as follows:
(a) Account information such as: Name, Family name, Position in the company, e-mail address, phone number, login password.
(b) – Communications such as: e-mail correspondence, phone calls and web meeting recordings.
(c) Application information such as operational performance and usage statistics.
3)
(a) VF shall process the Personal Data only on documented instructions from the Licensee, including with regard to transfers of Personal Data to a third country or an international organization, unless required to do so by applicable law to which VF is subject; in such a case, VF shall inform the Licensee of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
(b) VF shall ensure that its employees who are authorized to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(c) VF shall take all measures required by processor pursuant to Article 32 of the GDPR.
(d) [VF shall follow the terms of Article 28 (2) and (4) of the GDPR with respect to engaging another processor. Licensee hereby explicitly grants VF the authorization to use another processor at VF discretion.
(e) Taking into account the nature of the processing, VF shall assist the Licensee by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Licensee’s
obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III of the GDPR [“rights of data subject”].
(f) VF shall assist the Licensee in ensuring compliance with the Licensee obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of processing and the information available to VF.
(g) If so requested by Licensee, VF shall delete all the Personal Data of Licensee after the termination of the Agreement, including existing copies, unless applicable law requires storage of the Personal Data. 11 of 12
SCHEDULE 5.4 – DATA SECURITY POLICY
1. Cloud Servers. The Company uses the servers of Microsoft Azure for the use of the software (the “Cloud Servers”). Accordingly, the Microsoft Azure data security policy shall apply. VF assumes no responsibility and/or liability with respect to the Cloud Servers and the use thereof in connection with the Product,
including with respect to the data security applications thereof.
2. Company’s Data Security. The Company’s applicable security measures are as follows:
(1) No information uploaded by the Licensee to the Software (the “Licensee Information”) is downloaded by the Company to any server, other than the Cloud Servers.
(2) The Company’s employees who have access to the Licensee Information in the Cloud Servers are: Company’s CEO, COO, VP R&D, CTO, VP Customer Success, and members of the support and maintenance teams. Selected developers also have limited access, under the supervision of the Company CTO and COO.
3. Data transferred from the VF Gateway installed in the Licensee’s LAN to the Cloud Servers, is encrypted in accordance with [https] security protocol.
4. VF Identity Server that supports the VF platform, is GDPR complaint. 12 of 12
SCHEDULE 5.45.5 – PERSONAL DATA
The Product enables the Licensee to perform all the following, with respect to Personal Data:
1. Create a report detailing all Personal Data which exists in the Software for any specific person.
2. Change any Personal Data contained in the Software.
3. Delete the Personal Data of any given person from the software.
4. Suspend the processing of Personal Data of any given person.
5. Create a copy of the Personal Data of any given person in an electronically useable format, which enables to
transfer such Personal Data to another party in an electronically useable format.