BeeFree Agro LTD - Customer Agreement
MASTER SERVICES AGREEMENT
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This Master Services Agreement (the “Agreement”) is entered into as of the Effective Date by and between BeeFree Agro Ltd., an Israeli limited liability company (“BFA”) and the client listed in the cover page, service order or similar document (the “Client” and the “Cover” respectively). Each of BFA and Client shall be referred to hereunder as a “Party” and collectively the “Parties”. All capitalized terms used in this Agreement and not otherwise defined have the meaning set forth in the Cover.
WHEREAS, the Client owns and/or operates the Facility (the “Site”, or the “Sites”); and
WHEREAS, BFA is the owner of the Software, and is engaged in the development and operation of the Software, and the provision of the Services; and
WHEREAS, the Client desires to engage BFA, from time to time and at the Parties’ discretion, to render such Services to the Client as specified under this Agreement and applicable Covers which shall each be deemed part of this Agreement, and BFA is willing to render such services to the Client, all subject to such terms and conditions as set forth herein;
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereto hereby agree as follows:
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1. GENERAL; INTERPRETATION; DEFINITIONS
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1.1. The preamble paragraph and the recitals of this Agreement, together with all schedules and exhibits attached hereto form an integral part hereof.
1.2. Captions and section headings used in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.
1.3. Definitions. The following terms shall, for the purpose of this Agreement, be defined as follows:
1.3.1. “Content” means all materials data and information uploaded or otherwise provided by Client or by anyone on its behalf via the Platform.
1.3.2. “Documentation” means manuals, instructions and guidelines setting forth description of features,functionality, instructions and specifications for the Software, the Droned and/or the Services provided to Client by BFA.
1.3.3. “Drone(s)” means drones provided by the Client, in accordance with the requirements and specifications of BFA and approved in writing by BFA.
1.3.4. “Fees” means all amounts payable by Client for the Services in accordance with this Agreement, the Cover or as agreed by the Parties.
1.3.5. “Platform” means an online platform operated by BFA for the provision of the Services.
1.3.6. “Software” means the software referred to as “Joe”, to be installed by the Client via a designated app.
1.3.7. “Services” means the use of the Software and any other services detailed in the Cover.
1.3.8. “Subscription Period" means the period set forth in the Cover during which Client will provide the Services to Client.
1.3.9. “TOU” means the Terms of Use, as may be amended from time to time and are available at the BFA website.
1.3.10. “Transaction Documents” means the exhibits and annexes to this Agreement, the Cover, applicable quotes, service orders, and/or any other documents approved in writing by the Parties.
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2. LIMITED LICENSE
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2.1. License.
2.1.1. Subject to the terms and conditions of this Agreement and during the term thereof, BFA hereby grants Client a limited, non-exclusive, non-sublicensable and non-transferable license to embed and use the Software solely when embedded on the remote controlling the Drone solely as necessary to use the Services for the Purposes, internally for the Site, in accordance with this Agreement, the TOS and the Documentation.
2.1.2. Subject to the terms and conditions of this Agreement and during the term thereof, BFA hereby grants Client a limited, non-exclusive, non-sublicensable and non-transferable license to access the Platform solely as necessary to use the Services for the Purposes, internally for the Site, in accordance with this Agreement, the TOS and the Documentation.
2.2. License Terms. The Subscription Period, the type and number of users of the Software shall be as set forth in the Quote.
2.3. Terms of Use. Any use of the Software and/or the Platform shall be subject to the TOU. Notwithstanding the above, the TOU shall not derogate from any rights specifically granted to the Client under this Agreement.​
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3. CONDITIONS AND RESTRICTIONS OF USE​​
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Without derogating from any provision of the Agreement or the Transaction Documents, Client will not (and will not permit any user or third party to):
3.1. Copy, sell, loan, rent, lend, lease, sub-license, resell, distribute, or otherwise transfer the Software or the Platform to any third party, use the Software or the Platform for timesharing or service bureau purposes or in any manner not expressly allowed under the Agreement or the Transaction Documents;
3.2. Use the Software or the Platform in any manner that violates any applicable law or regulation, or promotes the violation of any applicable law or regulation.
3.3. Use the Software or the Platform in any manner outside the scope of the internal authorized use of the Client, including, without limitation, to showcase or demonstrate the Software or the Platform to any third party.
3.4. Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used in the the Software or Platform.
3.5. Interfere with, disrupt, alter, or modify the Software or the Platform, or create an undue burden on the Software or the Platform or the networks or services connected to the Software or the Platform.
3.6. Introduce unauthorized software or automated agents or scripts into the Platform so as to create multiple accounts, or generate automated searches, requests or queries.
3.7. Use any method unauthorized by BFA (whether manual or automated) to extract or scrape data from the Software or the Platform or to obtain any information from the Software or the Platform using any method not approved in writing by BFA.
3.8. Remove or alter any patent numbers, trade names, copyright notices, trademark notices, serial numbers, labels, tags or other identifying marks, symbols or legends included in and/or otherwise affixed to the Software or the Platform.
3.9. Use the Software or the Platform to infirnge the rights of any third party.
3.10. Perform or publish any benchmark tests or analyses relating to the Software, the Platform Services.
3.11. Purchase, access, or use the Software or the Platform for the purpose of building or improving a competitive product or service, or for any other directly competitive purpose.
3.12. Circumvent or attempt to circumvent any limitations that BFA imposes on accounts.
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4. LOGIN; ACCOUNT SECURITY; UNAUTHORIZED USE​
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4.1. Client shall ensure that the user name and password used to access the Software and/or the Platform shall be protected, may not be used by anyone except for the specific person to whom they were assigned, may not be shared with others and must be kept secured and confidential at all times.
4.2. Client shall only permit its authorized personnel to access the Software and/or the Platform and shall use all reasonable efforts and implement strict procedures to protect the login information of its authorized personnel and prevent any unauthorized access to the Software and/or the Platform.
4.3. Client will promptly notify BFA if Client becomes aware of any actual or suspected unauthorized use of or access to the Software and/or the Platform.
4.4. Client shall be responsible and liable for any unauthorized use of the Software and/or the Platform.
4.5. Client agrees that in the event of a breach of the Agreement, BFA shall have the right to block or otherwise prevent access to the Platform, without derogating from any rights and/or remedies available to BFA under equity or at law.
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5. SERVICES​
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5.1. Software Activation and Deactivation Services. The Services include the complete activation or deactivation of the Software linked to the Drones. BFA, inter alia, will perform an initial system setup, based on Client’s land size, Herd size, topography and other specific needs as shall be required. As part of the use of the Software, the Client may create a login access and password, to perform the complete configuration of the Software on the remote controlling the Drones.
5.2. Drones Activation and Deactivation Services. BFA will carry out the aforementioned installation and uninstallation remotely.
5.3. Training. If and to the extent applicable, BFA may provide Client with training services for the use of the Software, the training shall be conducted remotely or otherwise, at BFA’s sole discretion. In such case, additional fees may apply, as shall be agreed in writing by the Parties.
5.4. Technical Support to the Software. During the Term, BFA will provide specialized technical support, in consideration of and subject to the technical support fees (if applicable) set forth under the Cover, as indicated in Attachment I attached hereto, except in cases of use not in accordance with the terms of this Agreement or the Transaction Documents, BFA’s instructions, any other misuse of the Software or the Platform. The Client shall bear the maintenance cost, including parts and accessories, displacement and replacement, technical hours, manpower, and lodging if required.
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6. USE OF DRONES​
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The use of the Drones shall be the sole responsibility of the Client and the Client will be responsible for the correct use, maintenance and custody of the Drones and their proper use, in accordance with any applicable law, DJI orders, and any instructions of BFA.
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7. FEES & PAYMENT TERMS​
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7.1. Fees. Client will timely pay BFA all Fees. Except as otherwise specifically stated in the Agreement all Fees are non-cancellable and non-refundable (including any Fees paid in relation to unused Services or unused part of a Subscription Period).
7.2. Payment Terms. Payment terms of the Fees are in accordance with the Cover, or if not set forth in the Cover, until the 10th day of the month on which the Software is licensed or the Services are rendered. All payments of Fees shall be made by direct bank transfer into the bank account listed in the Cover or into a different bank account, as may be informed by BFA in writing from time to time. Client may not withhold payment of any amount due to BFA by reason of any right of set-off or counterclaim which the Client may have or allege to have or for any reason whatsoever.
7.3. Overdue Payments. All past due payments, except to the extent reasonably disputed, will accrue interest of 1.0% per month (or if such rate is limited under applicable law, up to the highest rate allowed under applicable law).
7.4. Taxes. Unless otherwise stated, the Fees do not include any taxes, levies or duties of any nature, including value-added, sales, use, or withholding taxes, or similar government fees or taxes assessable in any jurisdiction except for taxes assessable against BFA based on its income, property, or employees (collectively, “Taxes”). To the extent VAT, sales tax or any similar tac is applicable, it shall be added to any payment set forth in the Cover and be borne by the Client. Client is responsible for paying any Taxes associated with Client’s purchases under the TOS.
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8. CONTENT​
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8.1. Client shall be solely responsible for all Content, including with respect to the accuracy, quantity, quality and legality of the Content. BFA shall not be responsible for the Content in any manner.
8.2. Upon termination or expiration of this Agreement, Client will lose all access to the Content and BFA reserves the right to permanently delete any Content upon the termination of the Agreement and Client hereby waives any calims or contentions with respect to such deletion of Content.
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9. RESPONSIBILITIES​
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9.1. BFA will perform the activities required to the licensing of the Software, as well as for provision of the Services, but will not be responsible for any discontinuity arising from Acts of God or force majeure event, failures of network or, also, by the use not in accordance with the instructions or misuse of the Software and/or Drones by the Client. BFA does not warrant that (i) the Software and/or Drones will operate together with other systems, hardware, software or data; (ii) the Software and/or Drones operation will be uninterrupted or error-free; and (iii) all errors, problems and failures of the Software and/or Drones, which arise from misuse or sole fault of the Client, will be corrected.
9.2. To the maximum extent permitted by law, BFA will not offer guarantees and conditions beyond those expressly identified herein.
9.3. The Parties recognize and accept that the prices set forth in this Agreement do not take into consideration the entire risks involved in the business, the risk allocation between the Parties and the several commercial variables that may impact in any way whatsoever the obligations set forth herein. Therefore, the Parties expressly agree that the full liability of BFA and of its affiliated companies to the indemnity obligations of Client as a result of any direct actions caused solely by BFA due to gross negligence act that created damages or liabilities arising here from and from the Services hereto or related to the Software that will be limited to the direct damages effectively incurred by the Client and, in no case, shall exceed the amount paid by the Client in the scope hereof during the three (3) months prior to the occurrence of the said damage. The Parties recognize that the limitation of liability set forth in this clause is a critical element of this Agreement and that, in the absence of such limitation, the prices and other terms and conditions agreed to by the Parties would be materially different.
9.4. EXCEPT IN CASES OF GROSS NEGLIGENCE AND/OR WILLFUL MISCONDUCT, NEITHER PARTY WILL BE RESPONSIBLE FOR ANY INDIRECT LOSSES AND DAMAGES, OF ANY NATURE WHATSOEVER, INCLUDING RETAINED EARNINGS ARISING THEREFROM, COMPLAINTS FROM THIRD PARTIES, LOSSES OR DAMAGES OF RECORDS OR DATA, COST FOR THE SUPPLY OF SUBSTITUTE HERDS IN CASE OF DAMAGES RESULTED FROM USE OF THE SOFTWARE, SERVICES OR ALTERNATIVE TECHNOLOGY, COST WITH STOPPAGES OR ANY FACT BEYOND THEIR REASONABLE CONTROL, EVEN IF SUCH PARTY IS AWARE OF THE POSSIBILITY OF THOSE DAMAGES.
9.5. Conditions of Indemnity. The Party claiming a right of indemnification or defense under this Agreement shall provide the indemnifying Party with a prompt written notice (in all events within thirty (30) days) of any such claim, including a copy thereof, served upon it, and shall cooperate fully with the indemnifying Party and its legal representatives in the investigation of any matter regarding the subject of indemnification. The indemnifying Party shall have sole control over the defense and settlement of any such complaint or claims for which indemnification or defense is sought, including the sole right to select defense counsel and to direct the defense or settlement of any such claim or suit; provided that the indemnifying Party shall not enter into any non-monetary settlement without the prior written consent of the indemnified Party, subject to that such consent shall not be unreasonably withheld or delayed. In the event a claim or action is or may be asserted, the indemnifying Party shall allow the indemnified Party the right to select and to obtain representation by separate legal counsel. If the indemnified Party exercises such right, all costs, expenses and risks incurred by the indemnified Party for such separate counsel and shall not be borne by the indemnifying Party.
9.6. Either Party will not be held liable for problems, errors or damages caused by the concurrent use of other software that has not been licensed or developed by such Party and any third party.
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10. TERM AND TERMINATION​
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10.1. Term. This Agreement shall be effective as of the initial date of the Subscription Period as set forth in the Cover or an applicable order form and shall continue until the earlier of: (a) the lapse of the Subscription Period (unless extended by an applicable service order); or (b) the termination of the Agreement in accordance with its terms (the “Term”).
10.2. Termination for Convenience. Each Party may terminate this Agreement in accordance with the terms set forth for such termination in the Cover (if applicable).
10.3. Termination for Cause. Each Party may terminate this Agreement and any applicable Subscription Period for cause upon written notice:
10.3.1. 30 days following a written notice to the other Party of a material breach of the Agreement (including a failure to timely pay Fees) and such breach remains uncured at the end of such 30 day period;
10.3.2. if the other Party ceases its business operations or becomes the subject of a petition in bankruptcy or any other proceeding relating to winding up, insolvency, receivership, administration, liquidation, examinership, assignment for the benefit of creditors, or other similar process.
10.3.3. Transfer or assignment by Client of the rights and obligations under this Agreement without the previous written consent of BFA, or lack of updating of the registration data, as necessary in order to permit prompt location and identification.
10.4. In the event of termination of this Agreement, the Client shall pay all amounts due to BFA up to the date of termination.
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11. CONFIDENTIALITY​
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11.1. Parties, by themselves or through their affiliates, representatives, contractors or successors, bind themselves to keep the most absolute secrecy of the data and information to which they may have access as a result of this Agreement, during the Term and for 5 (five) years after its expiry or termination of this Agreement. The non-compliance with the provisions of this clause may result in the termination of this Agreement and will subject the infringing party to the applicable penalties and indemnities.
11.2. The confidential information includes all information on the Software, changes and derivatives, their documentation, as well as any other information that may be referred to as such by BFA.
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12. INTELLECTUAL PROPERTY RIGHTS​
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12.1. “Intellectual Property Rights” shall mean all rights in any country or jurisdiction in patents, inventions, trade secrets and other rights in know-how, copyrights (including any extensions or renewals), rights affording equivalent protection to copyright, data, rights in databases, registered designs, design rights, industrial designs and utility models, trademarks, trade names, business names, trade dress, logos, domain names, goodwill, software, algorithms, graphics, designs, source code, object code, mask works, work-products, concepts objectified in a certain form, and any and all other intellectual property or similar rights whether registered or unregistered anywhere in the world, including any derivatives, enhancements and/or improvements thereof, and all registrations or applications to register any of the foregoing items.
12.2. The Client acknowledges and agrees that the Intellectual Property Rights in the Software and Software’s source code and/or otherwise created and/or reduced or may be reduced to practice by BFA under this Agreement, including any derivatives (and including for avoidance of doubt any and all data and statistics derived or created by the use of the Software by Client), are and shall remain the property of BFA and nothing in this Agreement shall assign or otherwise transfer any such Intellectual Property Rights to Client or to any other party. For the avoidance of doubt all images captured, processed and/or transformed by the Software shall be owned by BFA. The aforementioned shall be following an anonymization.
12.3. The Client hereby grants BFA a perpetual, irrevocable, worldwide, royalty-free licence to use, reproduce, modify, distribute, and sublicense any data uploaded to the Software and/or the Platform for any purpose as long as such data is anonymized.
12.4. Either Party’s right, title and interest in and to all data, and Intellectual Property Rights owned or controlled by either Party prior to the execution of this Agreement shall remain exclusively with the relevant Party. Client hereby grants to BFA a non-exclusive right and license during the continuance in force of this Agreement to use the Client Intellectual Property Rights for the sole purpose of allowing BFA to comply with its obligations under this Agreement.
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13. Miscellaneous​
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13.1. Either Party is and shall remain an independent contractor. This Agreement shall not be construed to create an association, partnership or joint venture, relation of principal and agent or of employer and employee between the Parties. Neither Party shall be considered nor hold itself out to be, an agent, employee or partner of the other Party for any purpose.
13.2. No delay, omission or failure by either Party to exercise any of its rights or remedies hereunder shall be deemed to be a waiver thereof or an acquiescence in the event giving rise to such right or remedy, but every such right and remedy may be exercised from time to time and as often as may be deemed expedient by the Party exercising such right or remedy.
13.3. This Agreement shall not be amended, modified or changed except by an agreement in writing, signed by both Parties, that expressly refers to this Agreement and expressly amends or supersedes this Agreement.
13.4. This Agreement sets forth the entire agreement between the Parties and supersedes all prior agreements, arrangements and understandings, oral or written, between the Parties on the subject matter hereof.
13.5. The conditions for the Software license and provision of services are limited to those set forth in this Agreement, BFA not undertaking responsibility for any additional information or promises made by their representatives or dealers, which are not expressly provided in this Agreement.
13.6. The signature below is considered as valid for the purposes of this Agreement, even that it is not the signature of the Client, the subscriber being automatically considered as the representative of the Client, with legitimate consent to execute this Agreement, regardless of any power of attorney or other formality.
13.7. This Agreement, will be governed by and construed in accordance with the laws of of the state of Israel, excluding its conflict of laws principles. The jurisdiction for any dispute arising out of or in connection with this Agreement, will be the competent courts in the Tel-Aviv district solely. Prior to initiating litigation, the Parties will make a good faith attempt to resolve their dispute through direct negotiation.
13.8. Counterparts; Facsimile. This Agreement may be executed in any number of counterparts, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument. Execution copies may be delivered by a party by facsimile or via electronic mail (including in PDF format) and such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) the same with the same force and effect as if such facsimile or electronic mail signature page were an original thereof.​