DATAFLINT APP
TERMS OF SERVICE
These Terms of Service (“Terms”) govern access to, and use of the analysis and observability software application made available by DataFlint Ltd., an Israeli company (“Company” or “we” or “us”), via its website or otherwise (the “App”).
By creating an Account (defined below), clicking “accept” (or any similar button or mechanism indicating acceptance of these Terms), or otherwise accessing or using the App, you acknowledge that you have read and understood these Terms and agree to be bound by them.
In these Terms, “you” means the individual accessing or using the App and, where applicable, the organization on whose behalf such individual is acting (the “Customer”), and where you are accepting these Terms on behalf of a Customer, you represent and warrant that you have full legal authority to bind such Customer, which shall be deemed the Customer for purposes of these Terms, and such individual shall be deemed an authorized representative of the Customer with any act or omission attributable to the Customer.
For purposes of these Terms, each of Company and Customer will be referred to as a “Party” and together as the “Parties”.
1. Account
In order to use the App, you will need to create an account (“Account”) and follow any instructions we provide you via email or in the App. You agree not to create an Account for anyone else or use the account of another without their permission. You may only create one Account. When creating your Account, you must provide accurate and complete information. You are solely responsible for the activity that occurs in your Account, and you must keep your Account password secure. You must notify Company immediately of any breach of security or unauthorized use of your Account. As between you and Company, you are solely responsible and liable for the activity that occurs in connection with your Account. If you wish to delete your Account, you may send an email request to Company at support@dataflint.io. Company reserves the right, it in its sole discretion to reject any request to open an Account and/or to terminate any Account at any time.
2. Use and Access Right for Evaluation Purposes
Subject to the terms and conditions of these Terms, Company hereby grants Customer a limited, revocable, non-exclusive, non-assignable, non-sublicensable and non-transferable right to remotely access and use the App solely for Customer’s own internal evaluation purposes (and not for any commercial or production use) for a one-time no charge evaluation of certain features of Company’s Solution via the App. As used herein “Solution” means Company’s proprietary big data analysis and observability software platform (including all related software, services, interfaces and functionality) that can generate actionable reports and alerts to improve compute and storage performance.
3. Data Handling
3.1. In order to use the App, Customer may be required to provide or make available to Company certain performance and execution metadata related to its compute and storage infrastructure and activity. Customer acknowledges that Company will process and retain such information in accordance with its Privacy Policy which you have accepted as a condition to creating an Account and using the App. The Privacy Policy is incorporated herein by reference. Other than the details provided in creating an account, Customer is not required to share any personal information (“PII”) via the App. In order to avoid the sharing of any other PII, Customer understands that it must delete the PII before sending it to the Company via the App.
4. Restrictions on Use
Customer shall not, directly or indirectly: (i) give, sell, rent, lease, timeshare, sublicense, disclose, publish, assign, market, transfer or distribute the App or Solution or any portion thereof to any third party, including, but not limited to Customer’s affiliates, or use the App or Solution in any service bureau arrangement; (ii) circumvent, disable or otherwise interfere with security-related features of the App or Solution or features that prevent or restrict use or copying of any content or that enforce limitations on use of the App or Solution; (iii) reverse engineer, decompile or disassemble the App or Solution or any components thereof (except to the limited extent applicable statutory law expressly prohibits reverse engineering restrictions); (iv) copy, modify, translate, patch, alter, change or create any derivative works of the App or Solution, or any part thereof; (v) use any robot, spider, scraper, or other automated means to access the App or Solution for any purpose; (vi) take any action that imposes or may impose (at Company’s sole discretion) an unreasonable or disproportionately large load on the Company infrastructure; (vii) interfere or attempt to interfere with the integrity or proper working of the App or Solution, or any related activities; (viii) remove, deface, obscure or alter Company’s or any third party’s copyright notices, trademarks or other proprietary rights affixed to or provided as part of the App or Solution, or use or display logos of the App or Solution differing from Company’s own without Company’s prior written approval; (ix) use the App or Solution to develop a competing service or product; (x) use the App or Solution in any unlawful manner or in breach of these Terms; or (xi) publish or make available in any manner, other than to Company (or with Company’s prior written approval), any reviews of, opinions or impressions about, or experiences (including, without limitation, benchmarks and performance tests) with the App or Solution or any functions or features thereof.
5. Ownership
5.1. Title and full exclusive ownership rights in, of, and to the App and Solution (and all parts thereof, including any related documentation and any results or other output provided by it, and all reproductions, corrections, modifications, enhancements, improvements, releases, updates and upgrades, and all related patent rights, copyrights, trade secrets, trademarks, service marks, related goodwill, and know-including data related to Customer’s usage thereof, and Company’s other intellectual property, and any rights therein not explicitly granted to Customer hereunder, are reserved to and shall remain solely and exclusively proprietary to Company (or its third party licensors). Except as expressly provided herein, nothing herein shall be deemed as granting either Party any rights and/or licenses in and/or to the other Party’s intellectual property rights.
5.2. If Customer provides any suggestions, comments or other feedback to Company regarding the App or Solution (“Feedback”) including, but not limited to ideas or suggestions for new features, functionality, techniques or business methods, Customer hereby grants to Company a worldwide, royalty free, irrevocable, fully transferable, and sublicensable right and license to use, adopt and exploit such Feedback in any other manner and for any purpose as Company sees fit (including to disclose, reproduce, license or otherwise distribute such Feedback) without obligation or restriction of any kind and without payment of royalty or other compensation or any attribution to Customer or any third party.
6. Open-Source Components
Certain elements and/or features of the App or Solution may contain open-source software. Such open-source components are protected under copyright law and are licensed under specific license terms. Please see the license.txt file included in the App or Solution and available for Customer upon request for the applicable license terms of the open-source components. For clarity, any such open-source software is provided “AS IS” without any warranty of any kind, and subject to the open-source license terms attached to such open-source software.
7. Confidentiality
7.1. Each Party may have access to certain non-public information of the other Party, in any form or media, including without limitation trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, and any other information that a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive (“Confidential Information”).
7.2. Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party’s Confidential Information from disclosure to a third party. The receiving Party’s obligations under this Section, with respect to any Confidential Information of the disclosing Party, shall not apply if such information: (a) was already lawfully known to the receiving Party at the time of disclosure by the disclosing Party; (b) was disclosed to the receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the receiving Party has become, generally available to the public; or (d) was independently developed by the receiving Party without access to, use of, or reliance on, the disclosing Party’s Confidential Information.
7.3. Neither Party shall use or disclose the Confidential Information of the other Party except for the performance of its obligations and enforcement of its rights under these Terms (“Permitted Use”). The receiving Party shall only permit access to the disclosing Party’s Confidential Information to its respective employees and consultants having a need to know such information in connection with the Permitted Use, who either (i) have signed a non-disclosure agreement with the receiving Party containing terms at least as restrictive as those contained herein; or (ii) are otherwise bound by a duty of confidentiality to the receiving Party at least as restrictive as the terms set forth herein; in any event, the receiving Party shall remain liable for any acts and/or omissions of its employees and consultants. The receiving Party will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body; provided that it promptly notifies the disclosing Party in writing of such required disclosure to enable disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure and cooperates reasonably with disclosing Party in connection therewith.
7.4. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party. Upon the termination or expiration of these Terms, or at the earlier request of the disclosing Party, the receiving Party shall return to disclosing Party all Confidential Information of disclosing party (and all copies thereof) in its possession or control.
8. Disclaimers; Limitation of Liability
8.1. DISCLAIMERS. THE APP, THE SOLUTION AND ANY OTHER INFORMATION PROVIDED OR MADE AVAILABLE BY COMPANY TO CUSTOMER IS PROVIDED AND MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF, MERCHANTABILITY AND FITNESS FOR INTENDED OR PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE APP OR SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE. COMPANY DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING ANY CONTENT, INFORMATION, RECOMMENDATIONS, ALERTS, OR RESULTS THAT CUSTOMER MAY OBTAIN THROUGH THE APP OR SOLUTION.
8.2. EXCLUSION AND CAP OF DAMAGES. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE DAMAGES (INCLUDING ANY LOST BUSINESS PROFITS OR ANY LOSS, CORRUPTION, DAMAGE OR DESTRUCTION OF DATA) ARISING IN CONNECTION WITH THESE TERMS AND/OR OTHERWISE IN CONNECTION CUSTOMER’S USE OR ACCESS OF THE APP OR SOLUTION, WHETHER SUCH LIABILITY IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE. THIS EXCLUSION SHALL APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THESE TERMS AND/OR OTHERWISE IN CONNECTION CUSOMTER’S USE OR ACESS OF THE APP OR SOLUTION, WHETHER SUCH LIABILITY IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF USD $250.
8.3. THE EXCLUSIONS AND CAPS ON DAMAGES SET FORTH IN SECTION 8.2 SHALL NOT APPLY TO LIABILITY ARISING FROM (A) A BREACH BY A CUSTOMER OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER; (B) THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY; OR (C) A BREACH BY CUSTOMER OF SECTION 4 (Restrictions on Use).
9. Term and Termination
9.1. These Terms shall become effective upon your acceptance thereof as provided for above and shall expire upon the deletion or termination of Customer’s Account.
9.2. Company may terminate Customer’s Account and your access and/or use of the App and Solution at any time and for any reason.
9.3. The provisions of Sections 3-8, and 10, as well as any other provision of these Terms that contemplate performance or observance subsequent to termination of these Terms will survive termination of these Terms and continue in full force and effect for the period set forth therein, or if no period is set forth therein, indefinitely.
10. General
10.1. These Terms may only be amended by written agreement signed by both Parties.
10.2. No waiver of any provision of these Terms will be valid unless in a writing signed by an authorized representative of the waiving Party that specifies the waived provision. A waiver of one provision hereof will not constitute a waiver of any other provision.
10.3. No failure or delay by either Party in exercising any right, power or remedy under these Terms shall operate as a waiver of any such right, power or remedy and/or prejudice any rights of such Party.
10.4. Neither Party may assign or transfer these Terms or any rights or obligations hereunder without the prior written consent of the other Party, except that consent shall not be required in connection with a merger transaction, change of control, sale of all or substantially all of assets, or any similar transaction of Company, or assignment to an affiliate of Company.
10.5. These Terms constitutes the sole agreement of the Parties with respect to the subject matter hereof.
10.6. The validity, interpretation, construction and performance of these Terms shall be governed by the laws of the State of Israel, without giving effect to the principles of conflict of laws. Any dispute arising under or in relation to these Terms shall be resolved exclusively in the courts of the Tel Aviv District, Israel, and each of the Parties hereby irrevocably submits to the exclusive jurisdiction of such court, except that Company may seek injunctive relief in any court of competent jurisdiction. The Parties exclude the application of the United Nations Convention on Contracts for the International Sale of Goods (1980).
10.7. All notices under these Terms must be in writing and may be delivered by email to Customer at the email address provided upon creation of the Account or by posting within the App. All notices to Company shall be sent to: legal@dataflint.io.
