Terms
BlueCircle AI End-User License Agreement
THIS END USER LICENSE AGREEMENT BETWEEN YOU (“CUSTOMER”) AND BLUECIRCLE AI LTD (“BLUECIRCLE”) TOGETHER WITH ITS CORRESPONDING SALES ORDER(S) (COLLECTIVELY REFERRED TO AS THE “AGREEMENT”) GOVERN YOUR USE OF THE SOLUTION (AS DEFINED BELOW). PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE USING, ACCESSING AND/OR ONBOARDING THE SOLUTION OR ANY SOFTWARE OR SERVICE WHICH CONSTITUTE A PART OF THE SOLUTION, AND INDICATE YOUR ACCEPTANCE BY CHOOSING “I ACCEPT”, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY ALL THE TERMS OF THIS LICENSE AGREEMENT. IF YOU CHOOSE NOT TO ACCEPT, AT YOUR DISCRETION, YOU MAY NOT USE, ACCESS OR ONBOARD ANY PART OF THE SOLUTION. YOU MAY PRINT AND KEEP A COPY OF THIS AGREEMENT.
BACKGROUND: BlueCircle provides an AI-based cloud platform for the purpose of optimizing production profitability for food & beverage companies and growers by incorporating real-time AI forecast and supply chain optimization (the “Solution”). This Agreement governs Customer’s access and use of the Solution
and any proprietary technology of BlueCircle incorporated therein.
NOW, THEREFORE, the parties hereby agree as follows:
1. Solution. Subject to the terms and conditions of this Agreement, BlueCircle shall provide Customer with access to the Solution on a non-exclusive basis. Customer may use the Solution on a non-exclusive basis solely for its own commercial purposes. Customer shall not be entitled to any other software (including any other executable or source code) or services from BlueCircle. No licenses or rights are granted herein by estoppel or by implication. Customer represents that it has all necessary authority to enter into this Agreement and that the execution of this Agreement and the receipt of the Solution will not conflict with any legal, regulatory or contractual obligations of Customer.
2. Restrictions. Except as set forth expressly herein, Customer shall not, and shall not permit any third party, to (a) reverse engineer or attempt to find the underlying code of, the Solution, (b) modify the Solution, (c) sublicense, sell, distribute or provide the Solution to any third party; provided that the Customer shall be entitled to freely sublicense, distribute and/or provide the Solution to its Affiliates, or (d) bypass any security measure or access control measure of the Solution. To the extent any of the restrictions set forth in this Section are not enforceable under applicable law, Customer shall inform BlueCircle in writing in each instance prior to engaging in the activities set forth above. An “Affiliate” of Customer is any entity that is
controlled by, controls or is under common control with Customer, where “control” means the holding of more than 50% of the voting share capital, whether directly or indirectly.
3. Term. The term of this Agreement (“Term”) shall commence on the Effective Date and shall continue in effect for the period set forth in the applicable Sales Order (the “Initial Term”). Following the Initial Term, this Agreement shall automatically renew for subsequent periods of
– Confidential –
16 | Page
one year each (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless one of the parties provides written notice of its intent not to renew at least 90 (ninety) days prior to the Initial Term or applicable Renewal Term, as applicable. Either party may terminate this Agreement upon written notice if the other party shall materially breach this Agreement and not cure such breach within 30 days of receipt of written notice thereof from the non-breaching Party.
Upon any termination of this Agreement, Customer shall cease all use of the Solution.
Sections 2
– 12 of this Agreement shall survive any termination or expiration thereof. Neither party shall have liability for the termination of this Agreement in accordance with its terms.
4. Payment. In consideration of the Solution, Customer shall make payment to BlueCircle as set forth in the applicable Sales Order, and under such payment terms and time frames as set forth in the applicable Sales Order. Except to the extent set forth otherwise in applicable Sales Order, amounts due hereunder do not include VAT and other taxes, and Customer shall make payment in respect of such taxes in addition to other amounts due hereunder. Customer shall make payment to BlueCircle without withholding of any taxes or other government charges. Late payments shall bear interest at the rate of the lower of 18% per annum, or the highest late payment interest allowed under applicable law.
5. Intellectual Property. BlueCircle (or its licensors) has and shall retain all right, title and interest in the Solution, including all enhancements, derivatives, improvements and modifications thereof (“BlueCircle Property”). If Customer provides BlueCircle with any feedback regarding the BlueCircle Property, whether such feedback is provided at BlueCircle’s request or at Customer’s initiative, BlueCircle may use all such feedback freely and without restriction and shall not be subject to any non-disclosure or non-use obligations in respect of such feedback.
6. Data; Privacy. To provide the Solution, including the BlueCircle live dashboard and associated analytics, BlueCircle integrates data provided by Customer, including geographic, meteorological and historical data concerning Customer’s supply chain listed in Exhibit A (“Customer Data”). BlueCircle supplements Customer Data with certain proprietary, open source and third party data. BlueCircle analyzes all Customer Data using the Solution in order to generate prediction and
optimization reports for Customer, at the request of the Customer. Customer at all times retains sole ownership of all Customer Data. To maintain the confidentiality, security and integrity of Customer Data, BlueCircle complies with all relevant laws and regulations governing data privacy and data protection, and implements the technical, physical, administrative and organizational security measures set forth in Exhibit A. BlueCircle may disclose Customer Data to the
extent required by applicable law or to cooperate with a law enforcement investigation. BlueCircle makes continuous efforts to improve the Solution, and predictive and optimization reports provided to Customer, through analysis of the results provided by the Solution.
7. Confidentiality. Either party (a “Disclosing Party”) may disclose to the other party (a “Receiving Party”) certain confidential information regarding its technology and business (“Confidential Information”). All such Confidential Information shall be subject to the non-disclosure and
non-use obligations agreed between the parties in the Mutual Non-Disclosure Agreement (the “NDA”). To the extent the NDA would terminate or expire prior to the termination or expiration of this Agreement, the term of the NDA shall be automatically extended as may be necessary to cover all Confidential Information disclosed in the course of the relationship set forth hereunder and the NDA will be terminated automatically on the termination or expiration date of this Agreement.
– Confidential –
17 | Page
8. Warranties; Disclaimer. Each party warrants that it has full corporate power and authority to execute this Agreement and to perform its obligations hereunder; and all corporate action necessary for the authorization, execution, delivery and performance of this Agreement by it have been taken. Customer also warrants that it is authorized to provide BlueCircle with access to the Customer Data for purposes of receiving the Solution. BlueCircle represents and warrants that the Solution shall comply agreed specifications in all material respects and that, to its best knowledge, the Solution does not infringe the intellectual property rights of any third party.
SUBJECT TO THE FOREGOING, THE SOLUTION IS PROVIDED “AS IS”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BLUECIRCLE DISCLAIMS ALL IMPLIED AND STATUTORY
WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
Indemnification.
8.1 BlueCircle Indemnification Obligations. BlueCircle shall defend, indemnify and hold Customer (and its affiliates, officers, directors and employees) (each, a “Customer Indemnitee”) harmless from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys’ legal fees) which a Customer Indemnitee may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party against a Customer Indemnitee arising from (i) any claims that the Solution infringes the intellectual property rights of a third party (“IP Infringement Issue”); (ii) the provision by BlueCircle of the Solution not in compliance with applicable law; and (iii) the provision by BlueCircle of the Solution not in compliance with the agreed specifications. BlueCircle shall not have any liability to the extent any claim is the result of Customer’s actions, omissions or breach of this Agreement.
If the Solution shall be the subject of an indemnifiable claim based on an IP Infringement Issue, or BlueCircle reasonably believes that the Solution shall be the subject of an indemnifiable claim based on an IP Infringement Issue, BlueCircle may terminate this Agreement with written notice if modification of the Solution to be non-infringing or compliant with applicable law is not reasonably practical.
8.2 Customer Indemnification Obligations. Customer shall defend and indemnify BlueCircle (and its affiliates, officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys’ fees) which BlueCircle may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party arising from the provision by Customer of any data not in compliance with applicable law. Customer shall not have any liability to the extent any claim is the result of BlueCircle actions, omissions or breach of this Agreement.
8.3 Procedure. The obligations of either party to provide indemnification under this Agreement will be contingent upon the indemnified party (i) providing the indemnifying party with prompt written notice of any claim for which indemnification is sought, (ii) cooperating fully with the indemnifying party (at the indemnifying party’s expense), and (iii) allowing the indemnifying party to control the defense and settlement of such claim, provided that no settlement may be entered into without the consent of the indemnified party if such settlement would require any action on the part of the indemnified party other than to cease using any allegedly infringing or illegal content or services.
Subject to the foregoing, an indemnified party will at all times have the option to participate in any matter or litigation through counsel of its own election at its own expense.
– Confidential –
18 | Page
9. Limitation of Liability. In no event shall either BlueCircle or Customer (or their directors, officers, affiliates, agents or employees) have any liability for any consequential, indirect, special or punitive damages, arising out of or relating to this Agreement, and (with respect to BlueCircle) the BlueCircle Solution. The entire liability of either BlueCircle or Customer (or their directors, officers, affiliates, agents or employees) hereunder shall not exceed the total amount Customer has actually paid or had to pay to BlueCircle in respect of the Solution in the 12 months prior to the applicable claim. Notwithstanding anything else herein to the contrary, BlueCircle shall have unlimited liability with respect to its indemnification obligations hereunder with respect to any IP Infringement Issue.
10. Publicity. Subject to Customer’s consent, BlueCircle may disclose that Customer is using the Solution, including by displaying Customer’s name and logo on BlueCircle’s website and other marketing materials.
11. Miscellaneous. This Agreement together with its Exhibits constitute the entire agreement between the parties regarding the subject matter hereof and supersedes any and all other agreements between the parties regarding the subject matter hereof. Except as expressly set forth herein, this Agreement may not be modified or amended except in a writing executed by both parties. If any part of this Agreement shall be invalid or unenforceable, such part shall be interpreted to
give the maximum force possible to such terms as possible under applicable law, and such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of this Agreement. In the event of a conflict or inconsistency between this Agreement and a Sales Order, the terms of this Agreement shall govern (except to the extent expressly set forth otherwise on the applicable Sales Order). Either Customer or BlueCircle may assign all of its rights or obligations under this Agreement to an affiliated company or to a purchaser of all or substantially all of the applicable assignor’s assets or share capital, or to any company succeeding to all of the applicable assignor’s business, provided that the applicable assignor provides the other party with
written notice of such assignment. Subject to the foregoing, neither party may assign any of its rights or obligations hereunder without the prior written consent of the other party (not to be unreasonably withheld). Assignments in violation of the foregoing shall be void. This Agreement shall be governed by the laws of the State of Israel, and the competent courts in the city of Tel Aviv shall have exclusive jurisdiction to hear any disputes arising hereunder. Notwithstanding the foregoing, either party may seek an injunction or other equitable relief in any court of competent jurisdiction in order to prevent a breach or threatened breach of this Agreement.
LICENSEE ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD THIS LICENSE AGREEMENT AND AGREES TO BE BOUND BY ALL OF THE TERMS