Terms of Use

These Terms of Use shall apply to customer’s use (the “Customer”) of Tagado’s proprietary Software-as-a-Service platform (“Platform”) either identified in one or more ordering documents (which documents maybe be in electronic or digital format) signed and/or accepted digitally by the parties (each an “Order”) or, if there is no Order executed by the Customer then upon its access and/or use of the Platform. Customer’s execution of an Order referencing these Terms of Use and/or access or use of the Platform shall be deemed Customer’s agreement to these Terms of Use. These Terms of Use and all Orders (collectively referred to as the “Agreement”) represent the parties’ entire understanding regarding the Platform and shall govern over any different or additional terms of any purchase order and no terms included in any such purchase order shall apply to the Platform unless such different terms are stated specifically in a mutually signed Order.

1. The Platform

Subject to Customer’s compliance with the terms and conditions of the Agreement and payment of all applicable fees, Tagado shall provide Customer with the right to access and use the Platform, during the term of this Agreement, for the purpose of organizing customers’ feedback data and generating actionable insights from different public sources and the Customer’s internal sources (for example, CRM systems).

2. Account Information

1. During the process of creating an account in order to access the Platform (“Account”), Customer may be required to provide certain information including the selection of a password and/or SSO (the “Login Information”). The rules set forth in Section 2.2 below govern the security of Customer’s Account and Login Information. For the purposes of this Agreement, references to Account and Login Information shall include any account and account information, including usernames, passwords or security questions, whether or not created for the purpose of using the Platform, that are used to access the Platform.
2. Customer will not (and will not authorize or permit, any third party to): (i) allow any third party to access and use the Platform; (ii) allow Customer to share his or her access credentials with any third party; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform; (iv) modify, adapt, or translate the Platform; (v) make any copies of the Platform;

(vi) resell, distribute, or sublicense the Platform or use any of the foregoing for the benefit of anyone other than Customer unless expressly provided for in the applicable Order; (vii) remove or modify any proprietary markings or restrictive legends placed on the Platform; (viii) use the Platform in violation of any applicable law, or in order to build a competitive product or service; (ix) circumvent any processes, procedures, or technologies that Tagado has put in place to safeguard the Platform.

Any personal information Customer provides when creating or updating the Account, which may include Customer’s name, e-mail address, picture and any such other information, will be held, used and processed in accordance with Tagado’s Data Processing Agreement attached hereto as Annex A, which constitutes an integral part of this Agreement. Customer agrees that it will supply accurate and complete information to Tagado, and that it will update that information promptly after it changes. Customer represents and warrants that it has full right and authority to provide Tagado with the foregoing information, including, without limitation, any third party’s consent (to the extent required under any applicable law).

3. Platform Availability

1. Tagado shall make commercially reasonable efforts to ensure that the Platform will be accessible and functional on a continuous basis, twenty-four (24) hours per day, seven (7) days per week, with the exception of scheduled maintenance periods. The foregoing notwithstanding, Customer acknowledges and agrees that the Platform may be inaccessible or inoperable at any time and for any reason, including without limitation due to equipment malfunctions, unscheduled maintenance or repairs, or causes that are beyond Tagado’s reasonable control or not reasonably foreseeable by Tagado, including without limitation interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures.

If the Platform becomes inaccessible or is not functional, other than due to scheduled maintenance, Tagado shall have qualified personnel respond and endeavor to remedy such unavailability or failure of functionality as soon as reasonably possible.

Security Measures. Tagado uses, maintains and continuously updates a variety of security technologies and procedures in accordance with industry standards to help protect unauthorized access to or use of the Platform; including without limitations protection against unauthorized, unlawful or accidental processing, destruction, loss, alteration, damage, disclosure of, or access to the Confidential Information, and for the confidentiality, privacy and integrity of the Confidential Information. Tagado strongly encourage Customer, where available and appropriate, to take measures to protect its data, content, software applications or services, including without limitation using encryption technology to protect from unauthorized access, and to routinely archive as appropriate. In using the Platform, each party agrees to promptly notify the other party if it learns of a security breach related to the Platform.
Tagado may make changes or updates to the Platform (such as infrastructure, security, technical configurations, features, etc.) during the term of the Agreement, including to reflect changes in technology, industry practices and patterns of system use. The terms of the Agreement will apply to any such changes and/or updates that Tagado may make available to Customer. If, in Tagado’s reasonable judgment, any such modification to the Platform materially reduces its functionality, Tagado will endeavor to inform Customer via the e-mail address associated with Customer’s Account no less than fourteen (14) days prior to such change. Customer’s continued access and/or use of the Platform following such changes or modifications shall be deemed to be Customers acceptance of the revised Platform.

4. Consideration

1. In consideration for the right to access and use the Platform under this Agreement, Customer shall pay Tagado the subscription fees upon such terms and dates stated in the Order.
2. Customer may add additional accounts to monitor and/or additional number of sources to Customer’s account by requesting such increase from Tagado and paying the applicable additional subscription fees.
3. Payment; Payment Currency. All payments to Tagado will be made in U.S. dollars. Such amounts shall be paid by check or wire transfer to Tagado’s account in accordance with written instructions provided by Tagado and detailed in an Order.
4. All fees payable under the Agreement are non-refundable, net amounts and are payable in full, without any deduction of any kind including for taxes and/or duties. In addition, no amounts shall be set off by Customer for any reason whatsoever. Customer will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes) associated with the Agreement or its use of the Platform, except for taxes based on Tagado’s net income.
5. Late Payments. Any payments by Customer that are not paid on or before the date such payments are due under the Agreement shall bear interest of one percent (1%) per month. Interest shall accrue beginning on the first day following the due date for payment and shall be compounded quarterly. Tagado may use a third party to collect past due amounts. Customer shall be required to pay for all reasonable costs Tagado incurs in order to collect any past due amounts. These costs may include reasonable attorneys’ fees and other legal fees and costs.

5. Term and Termination

1. 1. The Agreement shall commence as of the date set forth in the Order and, unless earlier terminated as set forth below, shall remain in effect through the end of the term stated in the Order (“Term”).
  2. Either party may terminate this Agreement prior to the end of the Term (i) for no reason, with prior written notice of at least 60 days to the other party, (ii) if the other party breaches any material term or condition of the Agreement, and such breach is not remedied within thirty (30) days after receiving written notice thereof. Notwithstanding the foregoing, Tagado may immediately, by written notice to Customer, suspend or

terminate the Agreement if Customer fails to make any timely payment of fees owed or in case of breach and/or failure to comply with any of the provisions of Sections 1 (“The Platform”), 6 (“Intellectual Property Ownership”), or 7 (“Confidentiality”), and (iii) either party shall have the right to immediately terminate the Agreement, upon written notice, if either party is declared insolvent, bankrupt, or discontinues its business, or has a receiver appointed for its business, or in case of any other event having a similar effect.

Effects of Termination. Upon termination of the Agreement, (i) Customer shall cease to use the Platform;

(ii) each party shall cease to use and shall either destroy or return to the discloser any Confidential Information of the other party in its possession; (ii) if Tagado has terminated this Agreement, Customer will promptly pay all unpaid fees and applicable taxes due through the end of the term; and (iii) if Customer has terminated this Agreement, Tagado will promptly refund Customer a portion of any pre-paid fees pro-rated to the effective date of termination.

Survival. Termination of the Agreement shall not affect any provision of the Agreement which is expressly or by implication intended to come into force or continue in force on or after the termination.

6. Intellectual Property Ownership

1. The Platform, including but not limited to all materials, any computer software (in object code and source code form), data or information employed by Tagado pursuant to the Agreement, and any know-how, methodologies, equipment, or processes used by Tagado to provide the Platform, including without limitation all patent, copyright, trade secret and any other proprietary rights therein and any other deliverables provided by it hereunder, are and shall remain the sole and exclusive property of Tagado.
2. Nothing in this Agreement gives Customer a right to use any of Tagado’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.
3. Customer may elect to provide Tagado with feedback concerning the functionality and performance of the Platform, from time to time, as reasonably requested by Tagado, including, without limitation identifying potential errors, enhancements and improvements. Any feedback, suggestions, ideas or other inputs that Customer provides Tagado in connection with the Platform may be freely used by Tagado to improve or enhance Tagado’s products and services and, accordingly, all rights to such improvements and/or enhancements, howsoever arising, including as a result of any ideas, inputs or information provided by Customer as aforesaid, shall vest solely with Tagado.
4. Customer’s use of the Platform is limited to that specifically and explicitly permitted in this Agreement. Customer shall not and shall not permit any third party to: (a) engage in, cause, or permit the reverse engineering, disassembly, decompilation or any similar manipulation or attempt to discover the source code or underlying ideas or algorithms of the Platform or any part thereof; (b) bypass, alter, or tamper with any security or lockout features of the Platform; (c) create any derivative work or translation of the Platform; or

(d) provide, lease, rent, lend, license, assign, delegate, or otherwise transfer or use or allow others to transfer or use the Platform for the benefit of any third party.

“Customer Data” means any data, file attachments, text, images, reports, personal information, or any other content of Customer, that is uploaded, submitted, transmitted or otherwise made available, to or through the Platform by Customer or any of its users or in any way accessed by Tagado, including but not limited to information regarding Customer’s use of the Platform, such as information on which tools and/or services in the Platform are being used and how they are being used, connection time to Tagado’s server, etc. Customer retains all right, title, interest and control, in and to the Customer Data, including all intellectual property rights, and nothing in this Agreement shall have the effect of transferring or assigning any such rights from the Customer. Customer hereby grants to Tagado an irrevocable, non-exclusive, worldwide, fully paid, royalty free license to use any Customer Data in general, aggregated, non-personally identifiable form, during and after the term of this Agreement, for the purpose of improving and further developing Tagado’s products and technology and for statistical purposes. Notwithstanding,

the use of any of our on-line services, shall be subject to Tagado’s Privacy Policy, located at Tagado’s website, as shall be updated from time-to-time.

Upon termination or expiration of this Agreement, Tagado will retain the applicable Customer Data for a period of three (3) years, unless a longer retention period is required under applicable law (the “Retention Period”) during which time Customer shall continue to have access to the Platform to retrieve such Customer Data. After the Retention Period, Tagado reserves the right, but not the obligation, to permanently delete the Customer Data and all copies thereof. After the Retention Period, Tagado makes no representations or warranties as to the preservation or integrity of Customer Data, and Customer hereby agrees that Tagado shall have no obligation to retain Customer Data after such Retention Period, unless otherwise prohibited by law.

7. Confidentiality

1. The parties acknowledges that the other has and is expected to have access to information that relates to the other party’s, its business, assets, financial condition, affairs, activities, plans and projections, customers, suppliers, partners, and other third parties with whom said party agreed or agrees, from time to time, to hold information of such party in confidence (the “Confidential Information”). Confidential Information shall include, without limitation, the Platform and any know-how disclosed by Tagado, trade secrets and other proprietary information and personally identifiable Customer Data. The restriction herein shall not apply to the extent that such information is in the public domain or hereafter falls into the public domain through no fault of either party. Each party agrees not to use said Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. Each party shall protect the secrecy of and avoid disclosure and unauthorized use of the other party’s Confidential Information to the same degree that it takes to protect its own confidential information and in no event less than reasonable care. Each party may disclose, distribute, or disseminate the other party’s Confidential Information to any of its officers, directors, members, managers, partners, employees, contractors, or agents (its “Representatives”), provided that the party reasonably believes that its Representatives have a need to know, and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. If any party is legally compelled to disclose any of the other party’s Confidential Information, such party will provide the other party prompt prior written notice of such requirement so that it may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or the disclosing party waives compliance with the provisions of this Section, the receiving party may furnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be disclosed and will use commercially reasonable efforts to ensure that confidential treatment will be afforded such disclosed portion of the Confidential Information.
2. In the event that a receiving party or its Representatives engage in, or threaten to engage in, any act which violates Section 7.1, the disclosing party will be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders or preliminary or permanent injunctions) and specific enforcement of the terms of Section 7.1. The disclosing party will not be required to post a bond or other security in connection with the granting of any such relief.

8. Representation and Warranty Disclaimers

1. 1. Each party represents and warrants to the other party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (ii) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such party and have been duly authorized by all necessary corporate action on the part of such party, and constitute a valid and binding agreement of such party; and (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder.
  2. In addition to the representations and warranties set forth in Section 8.1, Tagado represents and warrants to Customer that (i) the professional services, if any, will be performed in a professional and workmanlike manner; (ii) to Tagado’s best knowledge, the Platform does not infringe, misappropriate, or otherwise violate any United States patents, copyrights, or trade secrets; and (iii) Tagado will comply with all applicable laws in performing Tagado’s obligations hereunder.
  3. In addition to the representations and warranties set forth in Section 8.1, Customer represents and warrants to Tagado that: (i) the Customer Data contains no harmful code; (ii) Customer has the right to provide Tagado with the Customer Data in accordance with this Agreement; and (iii) Customer’s use of the Platform, including, without limitation, the submission and processing of the Customer Data, complies with all applicable laws.
  4. to the maximum extent permitted by applicable law, the platform and any information provided under the agreement are provided “as is” and Tagado hereby disclaims all warranties and conditions, either express, implied or statutory, including without limitation, any (if any) implied warranties or conditions of merchantability, fitness for a particular purpose, or that the platform will perform error-free or uninterrupted or with

RESPECT TO THE FUNCTIONALITY AND PERFORMANCE OF THE PLATFORM OR USE OF RESULTS OBTAINED THEREOF.

Tagado makes no representations about the quantity, sufficiency or quality of data that it provides. Tagado does not guarantee that the information provided by the platform is accurate or complete, or the results to be achieved from such information, including any specific conversion rates.

9. Indemnification; Limitations of Liability

1. Tagado hereby agrees to indemnify, defend, and hold harmless Customer, from and against any and all claims, demands, liabilities, losses and damages (including, without limitation, reasonable legal fees and expenses) incurred by Customer as a result of any third party claim, arising out of or in connection with: (i) Tagado’s breach of its confidentiality obligations; or (ii) an allegation that the use of the Platform infringes or misappropriates any third party’s intellectual property rights. Tagado’s indemnification obligation under this Section shall not apply the extent that such claim is solely caused by Customer: (1) negligent or wrongful acts or omissions or (2) failure to comply with the terms of this Agreement and/or all applicable laws.
2. Customer hereby agrees to indemnify, defend, and hold harmless Tagado, its affiliates, employees, officers, directors, shareholders, agents, affiliates, contractors and representatives, and each of their respective successors and assigns (collectively: “Tagado Indemnitees”), from and against any and all claims, demands, liabilities, losses and damages (including, without limitation, reasonable legal fees and expenses), incurred by any Tagado Indemnitee as a result of any third party claim alleging that the use of Customer Data by Tagado in accordance with the terms of the Agreement, infringes or violates any confidentiality, security, privacy, data protection obligations or intellectual property rights of such third party. Customer’s indemnification obligation under this Section shall not apply the extent that such claim is solely caused by Tagado Indemnitees: (1) negligent or wrongful acts or omissions or (2) failure to comply with the terms of this Agreement and/or all applicable laws.
3. As a condition to a party’s indemnity obligation herein, the indemnified party shall (i) promptly notify the other party in writing of any such claim; (ii) give the other party the opportunity to assume sole control of the defense or settlement of such claim, action or proceeding and give the other party all necessary information and assistance (at the other party’s sole expense) in connection with such defense and settlement; and (iii) not settle any matter subject to indemnification without the prior written consent of the indemnifying party.
4. EXCEPT FOR BREACH OF THE INTELLECTUAL PROPERTY AND CONFIDENTIALITY UNDERTAKINGS DETAILED HEREIN, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOST PROFITS (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THE AGREEMENT, AS AMENDED BY THIS AGREEMENT.

TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT FOR GROSS NEGLIGENCE, WILFULL MISSCONDUCT OR FRAUD AND EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER DURING THE SIX (6) CONSECUTIVE MONTHS PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.

10. Miscellaneous

1. Governing Law and Jurisdiction. This Agreement is governed by the laws of Israel, without application of its principles of conflicts of law. The parties irrevocably consent to the exclusive jurisdiction of the competent courts in Tel Aviv, Israel, to adjudicate all disputes arising from or related to this Agreement to the exclusion of the jurisdiction of any other court.
2. Publicity. Tagado may identify Customer on Tagado’s website and other marketing materials as a user of the Platform, as well as reviews, testimonials and/or quotes provided by Customer with respect to its use of the Platform, all in a reasonable scope and customary manner for marketing purposes; any other use shall be subject to Customer’s prior written consent, which if given, may be revoked at any time.
3. Assignment. Neither party shall transfer, assign or pledge in any manner whatsoever any of its rights or obligations under this Agreement without the prior written consent of the other party, provided however, that a party may assign this Agreement in connection with a merger, acquisition, sale of all or substantially all of its assets or other such corporate reorganization.
4. Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against regulatory or public policy, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall in no way be affected, impaired or invalidated.
5. Entire Agreement. The terms and provisions contained herein and in an Order constitute the entire Agreement between the parties with respect to the subject matters hereof and shall supersede all previous communications, oral or written, between the parties hereto with respect to the subject matters hereof. No modification, amendment or correction to this Agreement shall be binding upon either of the parties hereto unless in writing and signed by the duly authorized representatives of both parties. The exchange of an executed Order by the Customer by electronic signature shall be sufficient to bind it to the Agreement and such Order.
6. Waiver. No waiver of any rights by any party hereto shall be construed as a waiver of the same or any other right at any prior or subsequent time. Furthermore, no waiver or delay on the part of a party in exercising any power or right hereunder, and no forbearance or indulgence of a party granted to the other party, shall in any way restrict or diminish the full rights and powers of that party under this Agreement, or operate as a waiver of any breach by a party of any of the terms or conditions of this Agreement.
7. Independent Contractor. No agency, partnership, joint venture or employment relationship is or shall be created by virtue of the Platform and/or the Agreement.
8. Notices. Any notice provided pursuant to the Agreement shall be in writing and shall be sent by registered mail, or e-mail with notice of receipt requested, or by hand delivery to the addresses of the parties as specified herein. Notices sent to Tagado shall be addressed to Tagado Ltd., 39 Montefiore St., Tel Aviv, Israel and to Customer’s address set forth in the Order, or to the address otherwise designated from time to time in writing by the parties. All notices will be deemed to have been delivered five (5) business days after being mailed (return receipt requested) if delivered by registered mail, or one (1) business day after delivered by hand or by e-mail (with confirmation of receipt).

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