“Affiliate” means any entity directly or indirectly controlling, controlled by or under common control with another entity.
“Control” means the power to direct the management and policies of an entity, through ownership of voting securities, by contract, or otherwise.
“Customer” or “You” means the person accepting these Terms, either for itself or on behalf of a legal entity.
“Designated Asset” means a site, vehicle, battery or any other asset used, where units of the Products will be installed and/or which behavior and systems will be tracked or monitored through the use of the Product.
“Documentation” means operating manuals, user guides and other technical literature supplied with the Products to aid the use of the Products by the Customer.
“Product” means the object code version of GALOOLI’s proprietary tracking, remote management and analytics software (hosted and firmware) and hardware products identified in the Service Order, and any new releases, updates or versions thereof made available pursuant to GALOOLI’s support or under any warranty obligation.
“Service Order” means the quote/order entered by Customer and GALOOLI for the license of the Product and related services incorporated herein by reference.
2. Acceptance of Terms
- By accessing and/or using the Product, by using any service GALOOLI may provide and/or make available from time to time, by executing a Service Order, You confirm that You have read, understood and agreed to be bound by, and comply with, these Terms. If you are accessing and/or using the Product on behalf of a legal entity which is the Customer, You agree to these Terms on behalf of such legal entity, and you represent that you have the authority to bind such legal entity to these Terms.
- GALOOLI may change these terms at any time by posting the revised version of these Terms, which revised terms shall be effective upon such posting. Your continued use of the Product shall be considered your acceptance of the revised Terms. If You do not agree to be bound by the revised Terms, please cease using the Product.
3. License Grant
- Subject to Customer’s compliance with all terms and conditions of these Terms, and subject to Customer’s full and timely payment of all fixed and recurring fees specified in the Service Order, GALOOLI grants the Customer a limited, revocable, non-transferable, non-exclusive license (with no right to sublicense) to use the Product for Customer’s internal business purposes during the term set out in the Service Order. GALOOLI and its licensors reserve all rights not expressly granted to Customer in these Terms. Customer’s use of the Product is limited to quantities, geographical territory(ies), number of Designated Assets, and any other parameters set out in the Service Order (“Usage Parameters”). The license for each item of hardware in the Product is contingent upon Customer purchasing and maintaining a valid license to the software (hosted and firmware) of the Product.
- Customer shall not (a) transfer, sublicense, sub-distribute, lease, assign, lend, resell, rent or otherwise redistribute the Product or any part thereof to any third party; (b) copy or translate the user manual, training materials or any other Documentation included with the Product; (c) make copies of the Product (other than for back-up purposes, provided that the copy contains all of the original Product’s proprietary notices and that it is used only for back-up purposes); (d) modify or alter the Product, including but not limited to, modify the Product to make it operate on non-compatible hardware; (e) reverse engineer, disassemble, decompile, decode, or in any manner extract any source code from the Product or create derivative works based on the Product; (f) remove, alter, obscure or cause not to be displayed, any trademarks, copyright notices, legends, proprietary restrictions, product identification, or start-up messages appearing on the face of or contained in the Product, or (g) use the Products in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms or in violation of any applicable law, (h) circumvent any controls or security measures of the Product or any part thereof. It is hereby emphasized that GALOOLI’S hardware and firmware warranty shall not apply in any event Customer uses sensors that were not provided by GALOOLI, or were not expressly authorized by GALOOLI for use with the Product.
4. Pricing & Payment
Pricing and payment terms shall be set forth under a Service Order. Without derogating from the foregoing, it is hereby clarified that, unless otherwise expressly specified under a Service Order , prices are exclusive of, and shall be paid free and clear of, any reduction or withholding for, or on account of, any and all taxes (including VAT), duties, levies, shipping costs, insurance costs and other associated costs or charges. In the event that Customer shall be required by applicable law to deduct any taxes from any payment to GALOOLI, then the sum payable shall be increased as necessary so that after making all required deductions, GALOOLI receives an amount equal to the sum it would have received had no such deductions been made. All bank charges shall be borne by the paying party.
5. Term and Termination
- The term of these Terms commences upon the earlier of (i) the date on which Customer accepts these Terms; (ii) by Customer executing the Service Order, or (iii) by accessing and/or using the Product and shall continue until the earliest of the following: (i) the lapse of the license period set forth in the Service Order, (ii) fourteen (14) days after GALOOLI gives Customer written notice of Customer’s breach of any provision of these Terms (other than Customer’s breach of Sections 3, 6 or 15, which breach shall result in immediate termination) unless Customer has cured such breach during such fourteen (14) days’ period; (iii) immediately if Customer files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or a petition for the opening of insolvency proceedings or similar proceedings if filed against the Customer. The foregoing term shall be referred here in below as “the Term”.
- Upon expiration or termination of these Terms, for any reason whatsoever, Customer’s license to use the Product shall immediately expire. Upon such termination or expiration Customer shall immediately (i) cease all uses of the Product and Documentation, (ii) remove and return to GALOOLI all copies and instances of the Product and Documentation, (iii) at GALOOLI’s discretion return or destroy all Confidential Information in Customer’s possession or control, and (iv) certify in writing to GALOOLI that Customer has complied with all of the foregoing requirements.
- Termination of these Terms will not relieve Customer from its obligation to pay all fees that remain unpaid under the Service Order.
- Any provisions of these Terms providing for license restrictions, limitations on liability, indemnity, confidentiality, governing law and jurisdiction, the provisions which protect the proprietary rights of GALOOLI and those terms which by their nature were intended to survive any termination of these Terms shall remain in force after the termination of these Terms.
- In no way derogating from any other remedy available to GALOOLI hereunder or under applicable law, if payments are overdue by 30 days, Galooli shall be entitled (without incurring any liability to Customer therefor), to suspend the service and access to its software solutions until late payments are remitted.
6. Proprietary Rights
Other than the limited license to use the Products granted under Section 3, no other right, title or interest, of any kind or nature, in or to the Products, any GALOOLI hardware, software, technology and/or any other intellectual property rights of GALOOLI, and/or any part thereof, are transferred, conveyed and/or granted to Customer by virtue of these Terms or otherwise. All title, rights and interests, including without limitation, all intellectual property rights in and to the Products remain exclusively vested in, and be the sole and exclusive property of, GALOOLI or its licensors.
7. Product Warranty & Disclaimers
- Subject to any other limitations and exceptions set forth in these Terms (including without limitation under Section 3.2 above), GALOOLI warrants that when properly used for the purpose and in the manner authorized by these Terms the Product will perform substantially in accordance with its Documentation for a period of one (1) year from the date of its delivery to the Customer.
- Provided Customer notifies GALOOLI in writing within the foregoing warranty period of any nonconformance of the Product, which notice must be accompanied by a detailed description of the nonconformance, and provided that GALOOLI has been able to reproduce, analyze and validate such nonconformance, GALOOLI will, at its sole discretion (i) repair or replace the nonconforming component, or (ii) refund the fees paid by Customer for the specific nonconforming component pertaining to the period during which the component Product did not perform as warranted, in exchange for the return of such nonconforming component to GALOOLI. The foregoing is Customer’s sole and exclusive remedy with respect to any nonconformance, defect or errors in the Product.
- GALOOLI DOES NOT WARRANT THAT THE PRODUCT WILL MEET CUSTOMER’S BUSINESS REQUIREMENTS OR THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE. THE WARRANTY DOES NOT APPLY: (I) IF THE PRODUCT IS NOT USED IN ACCORDANCE WITH THE DOCUMENTATION; (II) IF THE NON-CONFORMANCE IS CAUSED BY ANY MODIFICATION OF THE PRODUCT OTHER THAN A MODIFICATION PROVIDED BY GALOOLI AS PART OF THE PRODUCT SUPPORT OR UNDER THIS WARRANTY, (III) IF THE NON-CONFORMANCE IS CAUSED BY ANY SOFTWARE, HARDWARE, SYSTEMS, FACILITIES OR EQUIPMENT NOT DISTRIBUTED BY GALOOLI; OR (III) ANY USE OF THE PRODUCT IN VIOLATION OF THESE TERMS, THE USAGE PARAMETERS OR THE SERVICE ORDER.
- EXCEPT FOR THE EXPRESS LIMITED WARRANTY STATED ABOVE THE PRODUCT IS PROVIDED “AS IS”. EXCEPT AS RESTRICTED BY LAW, GALOOLI DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCT AND ANY SERVICES FURNISHED IN CONNECTION WITH THESE TERMS, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY OR MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NONINFRINGEMENT.
GALOOLI shall provide technical assistance in order to pursue proper usage of the Product and ensure the most efficient methods to assist its customers, to be provided pursuant to GALOOLI’s support and technical services, as shall be from time to time. GALOOLI support team may be reached by either the GALOOLI ticketing system; or by email to firstname.lastname@example.org .
9. Third-Party Products and Services
The Product may contain links to and/or integrate with other third-party products and/or services, including without limitation SIM card and communication services. GALOOLI is not responsible for the content, functionality, or availability of any third party products and/or services. Customer acknowledges sole responsibility for and assumes all risk arising from its use of any third party products and/or services. GALOOLI provides these links and integrations “AS IS” without warranty of any kind.
10. Use & Security of Personal Data
- Customer acknowledges that the use by Customer of the Products may involve the processing by GALOOLI, on Customer’s behalf, of personal data of certain data subject, including, but not limited to, Customer’s clients, employees and service providers. Customer further acknowledges that for the purposes of the GDPR, GALOOLI is the processor and Customer is the controller with respect to such personal data. Customer agrees to comply with, abide by and adhere to the provisions of the [Data Processing Addendum] setting forth the roles and responsibilities of Customer and GALOOLI with respect to such processing. “GDPR” means the General Data Protection Regulation ((EU) 2016/679), as amended or re-enacted from time to time, and any successor legislation to the GDPR. The terms “controller”, “processor”, “data subject”, “personal data”, and “processing” shall have the meaning given in the GDPR.
11. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN CONTAINED, EXCEPT FOR LOSSES RESULTING FROM: (I) FRAUD OR FRAUDULENT MISREPRESENTATION OR (II) DEATH OR PERSONAL INJURY ARISING FROM GALOOLI’S GROSS NEGLIGENCE: (A) UNDER NO CIRCUMSTANCES AND REGARDLESS THE NATURE OF ANY CLAIM WILL GALOOLI OR ANY OF ITS AFFILIATES, EMPLOYEES, DIRECTORS, OR OFFICERS, BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, MORAL OR EXEMPLARY DAMAGES, AND/OR FOR LOSS OF PROFITS OR REVENUES, ANTICIPATED SAVINGS, INTERRUPTION OF BUSINESS, LOSS OR CORRUPTION OF DATA, LOSS OF OPPORTUNITIES OR ANY INDIRECT ECONOMIC LOSSES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND REGARDLESS OF WHETHER GALOOLI SHALL BE ADVISED, SHALL HAVE OTHER REASON TO KNOW, OR IN FACT SHALL KNOW OF THE POSSIBILITY OF THE FOREGOING; (B) UNDER NO CIRCUMSTANCES AND REGARDLESS THE NATURE OF ANY CLAIM WILL GALOOLI OR ANY OF ITS AFFILIATES, EMPLOYEES, DIRECTORS, OR OFFICERS TOTAL, AGGREGATE LIABILITY, IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHERWISE, ARISING BY REASON OF OR IN CONNECTION WITH THESE TERMS OR ANY USE OF THE PRODUCT EXCEED, FOR ALL EVENTS AND CAUSES OF ACTION TOGETHER, AN AMOUNT GREATER THAN THE LICENSE FEES PAID BY CUSTOMER TO GALOOLI FOR THE PRODUCT DIRECTLY CAUSING THE DAMAGES DURING THE 12 MONTHS PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Customer agrees to indemnify and hold GALOOLI and its Affiliates, employees, directors, and officers harmless from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from: (i) any violation by Customer of any provision in these Terms;,(ii) actions against GALOOLI by any third parties in connection with Customer’s acts or omissions hereunder, and (iii) any other claim in connection with Customer’s use of the Products.
Customer acknowledges that in connection with the use of the Product, it may have access to certain non-public information of substantial value concerning GALOOLI’s business operations and/or technology (“Confidential Information”), which value would be impaired if such Confidential Information were disclosed to third parties or used other than for purposes expressly authorized hereunder. Without limiting the foregoing, but for avoidance of doubt these Terms, and any performance, warranty and like information relating to the Product (by whomsoever generated or communicated) will be considered the Confidential Information of GALOOLI. Customer agrees (a) to maintain all Confidential Information, in whatever form disclosed, in strict confidence, (b) not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of GALOOLI, and (c) not to use the Confidential Information except as required in the performance of Customer’s obligations or the exercise of Customer’s rights hereunder. Upon the written request of GALOOLI or upon any termination or expiration of these Terms, for any reason whatsoever, Customer shall (a) immediately return to GALOOLI or destroy all copies and partial copies of the Confidential Information, whether maintained in tangible, electronic or other form (including permanently erasing any portions thereof from computers and systems) and (b) provide GALOOLI with written certification of Customer’s compliance with the terms of this section. Customer acknowledges that any breach of any of Customer’s obligations with respect GALOOLI’s Confidential Information may cause or threaten irreparable harm to GALOOLI. Customer agrees that in such event, GALOOLI shall be entitled to seek equitable relief in any court of competent jurisdiction without the necessity of posting bond and in addition to such other remedies as may be available to GALOOLI under law or in equity.
Nothing in these Terms shall limit or prevent GALOOLI from disclosing the nature and/or scope and/or terms of its engagement with Customer, if so required pursuant to applicable laws and/or any stock exchange rules or regulations.
14. SPECIFIC TERMS APPLICABLE TO GALOOLI'S "PAY AS YOU GO/RENT" PROGRAM
Notwithstanding anything on the contrary in these Terms, the following provisions shall apply to any and all “Pay as You Go/Rent” program users (the “Rent Customers“):
- GALOOLI provides Rent Customers with services only. GALOOLI does not sell and/or license to Customer any hardware , but provides hardware and/or equipment as part of its services hereunder. Any hardware and/or equipment provided by GALOOLI to a Rent Customer hereunder is and shall remain Galooli’s sole and exclusive property, and nothing herein shall be deemed as grant to a Rent Customer of any rights in and/or to the hardware/equipment, except for the right to use such hardware/equipment in the framework of the services hereunder and in accordance with these Terms.
- Section 7 (Product Warranty & Disclaimers) shall apply to all Rent Customers, except that the warrant period set forth in Section 7(a) shall not be limited to 1 year from date of delivery, but shall be in effect throughout the entire Term. Repair and/or replacement may be subject to additional fees, as shall be set forth in the Service Order.
- In any event that the Rent Customer ceases to use the services and/or terminates its engagement with Galooli prior to the expiry of any commitment period (as defined in the Service Order), the Rent Customer shall pay GALOOLI a one-time early termination fee, as indicated in the Service Order.
- In any event that the Rent Customer ceases to use the services for any reason, whether during and/or at the end of the commitment period (as defined in the Service Order) and/or any renewal period (if any), the Rent Customer shall promptly return to GALOOLI any and all hardware, equipment and/or units of the Products provided and/or made available to him by and/or on behalf of GALOOLI.
15. Governing Law and Jurisdiction
These Terms shall be governed and construed in accordance with the laws of the State of Israel, without giving effect to its conflict of law provisions, and the courts in Tel Aviv, Israel, shall have sole and exclusive jurisdiction over any conflict and/or dispute arising out of or in connection to these Terms. Notwithstanding the foregoing, GALOOLI reserves the right to take action, as a plaintiff, against Customer in any competent courts of the territory where Customer maintains a presence, in which case the law governing these Terms and the interpretation hereof shall be the laws of the specific country where GALOOLI has taken such action against Customer.
16. Compliance With Export Laws
Customer acknowledges that the Products may be subject to certain export laws of various countries, including, without limitation, the laws of the United States and the EU (“Export Laws”). Customer agrees not to export, re-export or import any Products to countries, persons or entities prohibited by any applicable Export Law.
These Terms together with any Service Order constitute the entire understanding between Customer and GALOOLI regarding the Product, and supersede all prior discussions, representations, understandings, or agreements (including any pre-existing nondisclosure agreement, except as to its surviving terms and with respect to information disclosed under that agreement), whether oral or in writing, between the parties with respect to the Product. Customer may not assign these Terms or any rights or obligations hereunder, by contract, operation of law, change of control, or in any other manner, without the prior written consent of GALOOLI. GALOOLI may freely assign its rights and/or obligations under these Terms to any third party. All assignments or attempted assignments in violation of this Section shall be null and void. Unless expressly agreed to in writing by GALOOLI, no terms in any Service Order or other document delivered by Customer shall be deemed to amend these Terms and any such additional or inconsistent terms shall be deemed unacceptable to and rejected by GALOOLI. If any provision of these Terms shall be held by a court of law of competent jurisdiction to be unenforceable, the remaining provisions shall remain in full force and effect and, to the extent allowed and practicable, the unenforceable provision shall be modified so as to be enforceable consistent with its original intent and economic effect. GALOOLI shall not be responsible, nor shall be deemed to have defaulted under or breached these Terms, for any failure to perform or delay in performing its obligations under these Terms due to any event or circumstance beyond GALOOLI’s reasonable control, such as war, hostilities, act of God, earthquake, flood, fire, or other natural disaster, strike or labor conditions, material shortage, epidemic, disease, government action, force majeure, or failure of utilities, transportation facilities, or communication or electronic systems. The headings and captions used in these Terms are for convenience only, and shall not affect the interpretation of the provisions of these Terms. References to “Sections” are to section of these Terms. Unless the context requires otherwise, words importing the singular include the plural and vice versa and words importing gender include all genders. Any phrase introduced by the word “including”, “include” or any similar expressions shall be construed as illustrative and the words following any such word shall not limit the sense of the words preceding such words.