On October 13, 2015, Zipory Ltd. (d/b/a “Keeprz”) was acquired by Conduit Ltd. (d/b/a/ “Como”). Please note that as of said date, the following CLM Solution General Terms will apply to your use of the CLM Solution.

 

CLM SOLUTION GENERAL TERMS

These CLM Solution General Terms apply on your usage of the CLM (Customer Loyalty Management) Solution as available via the Como Premium service or otherwise (the “Terms”). These Terms are an also incorporated into the agreement entered between you (“you”) and Conduit Ltd. and/or its Affiliates (doing business under the brand name “Keeprz” or “Como”) (hereinafter: “Como”) or between you and one of Como’s authorized business partners (“Partner”) (the “Business Agreement” or “Partner Agreement”, as the case may be); regarding your access and use of the CLM Solution; and constitute an integral part thereof.

PLEASE READ CAREFULLY THE TERMS BEFORE USING THE CLM SOLUTION. COMO PRIVACY POLICY AVAILABLE AT: http://www.como.com/privacy-policy/ IS ALSO INCORPORATED HEREIN BY REFERENCE AND IS A PART OF THESE TERMS. By joining the CLM Solution, accessing or using it, or provide access to it to your customers and/or employees and/or any third party, you hereby agree and accept to these Terms. You must accept these Terms prior to downloading or otherwise using the CLM Solution or providing it to your customers. During registration, you may choose a username and password with which you shall be able to access your account at the CLM Solution (the "Account") and use the CLM Solution in accordance with your authorizations. You will keep your login details in confident and not share them with or transfer them to any third party.

IF YOU DO NOT ACCEPT THESE TERMS IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE CLM SOLUTION OR PROVIDE ACCESS TO IT TO YOUR CUSTOMERS. IF YOU ARE AN INDIVIDUAL WHO CONSENT TO THESE TERMS ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT BUSINESS TO THESE TERMS AND YOUR CONSENT TO THESE TERMS WILL BE TREATED AS THE CONSENT OF THE BUSINESS. IN THAT EVENT, "BUSINESS”, PARTNER”, "YOU" OR "YOUR" WILL REFER AND APPLY TO THAT BUSINESS. YOU ALSO CONSENT TO THE USE OF: (A) ELECTRONIC MEANS TO CONSENT TO AND COMPLETE THESE TERMS AND TO PROVIDE YOU WITH ANY NOTICES GIVEN PURSUANT TO THESE TERMS; AND (B) ELECTRONIC RECORDS TO STORE INFORMATION RELATED TO THESE TERMS AND YOUR USE OF THE CLM SOLUTION. FROM TIME TO TIME WE MAY CHANGE THESE TERMS. WE WILL MAKE REASONABLE COMMERCIAL EFFORTS TO NOTIFY YOU OF ANY UPDATES TO THESE TERMS BY MAKING SUCH UPDATES AVAILABLE ON OUR WEBSITE. NOTWITHSTANDING THE FOREGOING, YOUR CONTINUED USE OF THE CLM SOLUTION OR PROVISION OF THE CLM SOLUTION TO YOUR CUSTOMERS WILL BE DEEMED ACCEPTANCE TO AMENDED OR UPDATED TERMS. COMO RECOMMENDS THAT YOU PRINT OUT OR SAVE A LOCAL COPY OF THESE TERMS FOR YOUR RECORDS TOGETHER WITH THE BUSINESS AGREEMENT OR PARTNER AGREEMENT, AS APPLICABLE TO YOU.

1.      DEFINITIONS

The following capitalized terms shall have the following meanings:

1.1.     Affiliates” means any and all entities which, directly or indirectly, Control, being Controlled by or under common Control with Como.

1.2.     App Stores” means any application stores or marketplaces of mobile applications, including Apple’s iTunes store, Google Play, the Amazon App Store, Facebook App Center or their equivalent.

1.3.     Business" means any business or chain of businesses that is engaged with Como (directly or via Partner, as the case may be) for the purpose of (i) using the CLM Solution; (ii) customize, distribute, make available and administer such business or chain of businesses’ engagement with its customers via the CLM Solution, including a Mobile App.

1.4.     "CLM Solution" means Como’s proprietary customer loyalty management solution computer software platform and customized mobile/web/software applications in connection with loyalty schemes, rewards programs and general business management, that enable businesses to engage with their customers and third parties, manage the business transactions, engagement and communication with its customers, display, share, promote and distribute content, services and products to/with its customers and business partners across all platforms and all mobile devices (as may be modified by Como from time to time at its sole discretion), and any customization, improvement and/or derivative work made by you and any update or upgrade thereto by Como; and any other products and services provided by Como therein or in connection thereto.

1.5.     Confidential Information means any proprietary, confidential and/or trade secret information of disclosing party and/or others possessed by disclosing party, whether furnished before or after the Effective Date or your consent to these Terms, regardless of the manner in which it is furnished. Such information includes without limitation, the following: (a) any information, artwork, designs, ideas, concepts, know-how, data, products, services, processes, techniques, drawings, programs, code, inventions, computer program, formulae or test data, work in progress, engineering, manufacturing, marketing, financial, sales, suppliers, customers, investors and/or business information, whether in oral, written, graphic, or electronic form; and/or (b) any document, diagram, drawing, computer program and/or code or other communication; and/or (c) the terms and conditions of your Business Agreement or Partner Agreement (as applicable to you). Any information disclosed by the disclosing party whether it is conspicuously marked “confidential”, is known or if it should have been reasonably known by the receiving party to be confidential in nature shall be considered as Confidential Information. For purposes of these Terms, Confidential Information shall not include any information that: (a) is, or subsequently becomes, publicly available without receiving party's breach of any obligation owed to disclosing party; (b) became known to receiving party prior to disclosing party's disclosure of such information to receiving party; (c) became known to receiving party from a source other than disclosing party by means other than by a breach of an obligation of confidentiality owed to disclosing party; or (d) is independently developed by receiving party without the use of any of disclosing party’s Confidential Information. If a particular portion or aspect of the Confidential Information becomes subject to any of the foregoing exceptions, all other portions or aspects of such information shall remain subject to all of the provisions of these Terms.

1.6.     "Content" means data, information, graphics, links, web pages, signs, images, software and code, files, texts, photos, audio or video, sounds, visual works, musical works, works of authorship, and components.

1.7.     "Content Sharing Services" means the service, software and features made available by Como via the CLM Solution which enables you (and/or Partner on your behalf, as the case may be) and certain Content providers to access, distribute and share their Content with third parties and End Users as well as select and use third party Content shared by others.

1.8.     Control or Controllingmeans as defined in Article 1 of the Israeli Securities Law, 5728-1968.

1.9.     "Documentation" means any written document and/or manual and/or technical guide and/or publication, relating to the CLM Solution.

1.10.   Effective Date” means the earlier of: (i) the Effective Date as defined in your Business Agreement or Partner Agreement (as applicable to you) with Como; (ii) the date you have provided your consent to these Terms; and (iii) the date you commenced using, promoting or distributing the CLM Solution.

1.11.   "End User" means an individual user that is registered as a user of the CLM Solution and/or to Business’ customer membership club via the Business’ Mobile App or otherwise and/or uses the CLM Solution in any way.

1.12.   "End User Content" means any Content, information or other materials which any End User posted, uploaded, linked or otherwise submitted to or via the CLM Solution and any other data collected in connection with such End User use of the CLM Solution.

1.13.   "End User Privacy Policy" means the default privacy policy provided by Como that governs the collection, use and disclosure of information by Como as a result of an End User's usage of the CLM Solution, including the Mobile App, and/or the services therein, as may be updated by Como from time to time.

1.14.   "Export Control Laws" means any U.S. export laws and regulations including export or re-export directly or indirectly of technology, including to countries embargoed by the U.S.

1.15.   "Fraudulent Activity" means any of the following activities: (a) disassemble, decompile, attempt to derive the source code of the CLM Solution or a Mobile App or any part thereof, in whole or in part, or permit or authorize any other person or entity to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition; (b) fictitious installation and/or download of a Mobile App; (c) installing or uninstalling any program (including, without limitation, a Mobile App) on an End User’s mobile device, without the End User’s consent or any other similar practices; (d) automated, deceptive, fraudulent, encouraged or other invalid searches in any web search feature, or searches for any purpose other than organic retrieval of information and web browsing in good faith; (e) automated and/or fraudulent clicks on: ads, sponsored links, sponsored search results, Mobile App components, or such clicks for purposes other than retrieval of information in good faith; (f) initiating or using a promotion in connection with a Mobile App which violates any applicable law or regulation, or an existing agreement between you and Como or which is not consistent with industry standards and good practices; (g) reverse engineer, bypassing, circumventing or manipulating the CLM Solution and/or any Mobile App; (h) hacking to a Mobile App and/or the CLM Solution or any part thereof, or using a Mobile App or the CLM Solution in order to hack into public or private infrastructure or equipment; or (i) using in connection with a Mobile App and/or the CLM Solution any material that contains software viruses or any other computer code, files or programs designed to interrupt, hijack, destroy or limit the functionality of any computer software, hardware, network or telecommunications equipment.

1.16.   "Intellectual Property Right(s)" means: (i) all inventions, whether patentable or not, all improvements thereto and derivatives thereof, and all patents and patent applications; (ii) all registered and unregistered trademarks, service marks, trade names, trade dress, logos and registrations and applications for registration thereof; (iii) all copyrights in copyrightable works, all other rights of authorship, including without limitation moral rights, and all applications and registrations in connection therewith; (iv) all trade secrets and confidential business and technical information (including, but not limited to, research and development, know-how, proprietary knowledge, financial and marketing information, business plans, formulas, technology, engineering, production and other designs, drawings, engineering notebooks, industrial models, software and specifications); (v) all rights in databases and data compilations, whether or not copyrightable; and (vi) all copies and tangible embodiments of any or all of the foregoing (in whatever form, including electronic media).

1.17.   Location(s) or “Branch(es)” means a physical store location of a Business from which it sells its goods and services.

1.18.   "Marks" mean trademarks, service marks, trade names, trade dress and associated logos, in each case, whether or not registered.

1.19.   "Mobile App(s)" means any customized software/mobile application generated and/or administered by you (or Partner, as the case may be) via your use of the CLM Solution in compliance with these Terms, for use on mobile phone device, tablet, television and/or any other current or future telecommunication device, platform or media.

1.20.   "Prohibited Activity" means: (a) any activity or use of Content that (i) encourages conduct that would be considered a criminal offense or could give rise to civil liability, or violates any applicable law, regulation or order of any court or tribunal including, but not limited to, collecting, using or disclosing personal information from any individuals in violation of applicable law, including without limitation personal information of minors in violation of applicable privacy law, including, without limitation, the Children's Online Privacy Protection Act of 1998, regulation and/or industry best practices; (ii) violates, misappropriates, or infringes any third party (including, without limitation, End Users) Intellectual Property Rights, rights of privacy and publicity, or other proprietary or legal rights; (iii) materially interferes or disrupts web navigation or browsing and/or re-directs End User’s queries to any other server than Como servers; (iv) involves rewards programs or actual monetary exchanges, without Como's express written approval ; or (v) modifications to other mobile applications (and/or Content on such mobile applications) used by End Users and controlled by third parties without the End Users' consent; (b) usage which adversely affects public or private infrastructure or equipment; (c) installation or un-installation of a Mobile App that is generated without an accurate and conspicuous disclosure and without informed consent or any other similar practices; (d) Fraudulent Activity; (e) use, endorsement, and/or promotion of Content which: (i) is, promotes presents, or advocates pornographic, obscene, excessively profane, racist, ethnically offensive, crude humor, frighten or horror themes or images, threatening, infringing, violent, libelous, gambling-related, or discriminatory activity, promotes illegal drugs or arms trafficking, violates Export Control Laws, creates a risk to a person's safety or health, compromises national security or interferes with an investigation by law enforcement officials, or is misleading or deceptive material or is any type of malware; (ii) promotes, advocates or facilitates terrorism, terrorist-related activities or violence; (iii) contains any Nazi symbols or references; or (iv) contains excessive or inappropriate advertisements or Content as determined by Como in its sole discretion; (f) using a Mobile App or the CLM Solution to offer, distribute or promote any mobile application that is substantially similar to the Mobile App; (g) redirecting traffic or replacing web pages or any other pages available in a Mobile App to web pages or other pages which promote Content or products which may adversely affect the use of the Mobile App and/or violates any of the prohibitions contained herein; or (h) violating Como’s Third Party Guidelines available at: http://www.como.com/guidelines/ which are incorporated herein by reference or (h) any attempt to bypass any Subscription Plan in order to avoid payment and/or get a reduced rate.

1.21.    Subscription Plan(s)” means certain services provided by Como (or Partner, as the case may be) which includes: (i) administrative and promotional tools and/or features available when using CLM Solution; (ii) services and features which are included in the respective plan; and (iii) the payment payable by you to Como (or Partner, as the case may be) for your chosen Subscription Plan. Specifications of each such plan may be detailed in your Business Agreement or Partner Agreement (as applicable to you). Any Subscription Plan and/or any specifications, features and/or services provided therein may be updated and/or changed from time to time by Como or cancelled in its entirely without any compensation and/or reimbursement to you for such change or cancellation.

1.22.   "Third Party Content" or "TPC" means any third party Content and/or technology and/or modules and/or services that is offered, distributed or promoted in or from the CLM Solution.

1.23.   "Updates" means bug fixes, error corrections, patches, revisions, new versions or new releases.

1.24.   "Your Materials" means any Content (excluding End User Content), goods and/or services provided/offered by you (or by Partner on your behalf), in connection with the CLM Solution, including the Mobile App, including that which you (or Partner, as the case may be) added to any part of the CLM Solution, including to the Mobile App, including Updates.

2.      GRANT OF LICENSE

2.1.     Your License. Como hereby grants you a limited, non-exclusive, non-assignable, non-transferable, non-sub-licensable right and license, during the Term to (a) use the software, tools, features and services that are provided as part of the CLM Solution, including the Mobile App, solely for your own business purposes and as a customer membership club CLM Solution and only in accordance with your chosen Subscription Plan; and (b) to market, distribute and provide the CLM Solution, including the Mobile App, to your customers as a customer membership club CLM Solution and/or as otherwise pre-approved in writing by Como (collectively, the “Your License”).

2.2.     Como License. You hereby grant Como and its Affiliates a worldwide, royalty free, non-exclusive, sub-licensable right and license to: (a) use, reproduce, modify, crewel, catch, distribute, perform, transmit, display and access the Business IP (as defined below), solely for the purposes of making the Business IP available via the CLM Solution and the Mobile App and implementing any changes or Updates to the CLM Solution, including the Mobile App, as set forth herein; (b) distribute, promote, place and display the CLM Solution, including the Mobile App, via any medium; (c) access and query the Business IP ,as available via the CLM Solution, in order to provide you with business data, analysis and/or confirm your compliance with these Terms; and (d) remove any Business IP from the CLM Solution, including from the Mobile App, in case of breach of these Terms by you, and/or to implement any changes or Updates to the CLM Solution, including the Mobile App (collectively, “Como License”).

2.3.     Use of Marks License. Each Party grants to the other party a limited, worldwide, non-sub-licensable (except as permitted in these Terms), non-exclusive right and license to use the other Party’s Marks solely to engage in marketing and/or promotional activities or any other activities which were permitted in writing by either Party. Any use by one Party of a Mark of the other Party must be in accordance with applicable law and with respect to Como, in accordance with its Trademark Policy. Each Party acknowledges and agrees that any and all goodwill and other proprietary rights that are created by or that result from such Party’s use of a Mark of the other Party as permitted hereunder will inure solely to the benefit of the other Party. Notwithstanding the foregoing, such right and license is expressly limited to your (or Partner, on your behalf) use solely as necessary for your performance hereunder and is subject to further limitations which Como may set forth at its sole discretion from time to time, for example, prohibiting specific uses by you (or Partner, on your behalf) of such right and license even if it could be deemed necessary for your (or Partner, on your behalf) performance hereunder.

2.4.     No Implied License. Except as expressly provided herein, nothing in the Partner Agreement or Business Agreement (as applicable to you), including in these Terms, will be construed to confer any ownership interest, license or other rights upon you by implication, estoppel or otherwise as to any technology, intellectual property rights or products of Como or any third party. The Partner Agreement or Business Agreement (as applicable to you), including in these Terms, shall not be construed as a sale of any rights in the CLM Solution or Documentation, and all references in the Partner Agreement or Business Agreement (as applicable to you), including in these Terms, or other agreements between the Parties with respect to the license of the CLM Solution or references of alike in effect, shall mean only the license and right to use the CLM Solution and such Documentation subject to the terms and conditions of the Partner Agreement or Business Agreement (as applicable to you), including in these Terms.

2.5.     The CLM Solution may use or include open source software (“OSS”), including those detailed in this notice file https://www.keeprz.com/credits_and_notices.php. To the extent so stipulated by the license that governs each OSS ("OSS License"), each such OSS is subject to its respective OSS License, not these Terms. If, and to the extent, an OSS License requires that these Terms effectively impose, or incorporate by reference, certain disclaimers, provisions, prohibitions or restrictions, then such disclaimers, provisions, prohibitions or restrictions shall be deemed to be imposed, or incorporated by reference into these Terms, as required, and shall supersede any conflicting provision of these Terms, solely with respect to the corresponding OSS which is governed by such OSS License. If, and to the extent, an OSS License requires that the source code of the OSS it governs be made available, Como hereby grants a written offer, valid for the period prescribed in such OSS License, to obtain a copy of the source code of the OSS, from Como. To take up this offer, contact Como at support@como.com.

3.      USAGE OF THE CLM SOLUTION; MOBILE APP CUSTOMIZATION

3.1.     You agree to provide accurate, current and complete information during registration process to the CLM Solution (or engagement with the Partner, as the case may be) and to keep such information up-to-date. You are responsible for safeguarding and maintaining the confidentiality of your username, password and corresponding Account information. You agree that you are entirely and solely responsible for any and all activities or actions that occur under your Account, whether or not you have authorized such activities or actions. You agree to notify Como (and/or Partner, as the case may be) in writing of any unauthorized and/or fraudulent use of your Account and/or, Mobile App(s).

3.2.     Como (and/or Partner, as the case may be) will have no responsibility or liability for any content, materials, discounts, rewards, or other deals made available through the CLM Solution, including the Mobile App, by you (or Partner, as the case may be).

3.3.     Como retain the exclusive right in its sole discretion to: (a) determine which features, services, Subscription Plans, products, software or other tools will be available to you via the CLM Solution, including via any Mobile App; (b) customize, modify and update the CLM Solution from time to time; (c) remove any Content and/or Your Materials, or any part thereof, from the CLM Solution and/or Mobile App which violates these Terms or require you (or Partner, as the case may be) to do so; and (d) add, change or remove, at any time, any Content, materials and/or functionality made available in the CLM Solution, including in any Mobile App, for any reason and without notice. For example, Como may change the settings and/or appearance of any part of the CLM Solution, including any Mobile App, or any elements thereof, without prior notice, or Como may provide any Updates and upgrades to the CLM Solution, including to the Mobile App, or any other elements thereof. Notwithstanding the foregoing, Como will do its reasonable commercial efforts that Your Materials will not be modified, except for the format and/or visualization of Your Materials as provided in the CLM Solution, including in the Mobile App, that may be changed as a result of the technical removal or addition of a functionality or element of a CLM Solution from a Mobile App.

3.4.     Como may enable you to use and offer various loyalty schemas and reward programs to End Users via the CLM Solution including the Mobile App or otherwise. Creating and/or providing such loyalty schemas and reward programs are subject to these Terms and the End User Terms of Use which are incorporated herein by reference and are binding to you.

3.5.     Reports. The CLM Solution provides you with access to online reports and analysis regarding the usage of End Users of the CLM Solution, including the Mobile App, and information about your End Users from other sources (e.g. point of sale, social networks, service providers) if available to you. Notwithstanding the foregoing, Como (and/or Partner, as the case may be) will not be liable for any unavailability or inaccuracy, temporary or otherwise, of any reports, data or information provided via the CLM Solution, including the Mobile App.

4.      PUBLICATION OF MOBILE APPS

4.1.     Publication. You hereby undertake and agree that when submitting the Mobile App to the App Stores, you will comply with the terms and conditions of the App Store, including with respect to opening a developer account, submission process, updating the Mobile App files and content or any other terms and conditions thereof.

4.2.     Como’s App Publication Assistance Services. In order to use Como’s App Publication Assistance Services and submit an app to the App Store under your own developer account at such store, you will be required to enter into separate agreement with each of the App Store(s) and thereby create a developer account. Once such account is activated, you will be able to use Como’s (or Partner’s, as the case may be) App Publication Assistance Services.

4.3.     General Permission to act on your behalf. By using the CLM Solution, you hereby grant us (and/or Partner, as the case may be) a right and license to act on your behalf in connection with such use. for example: In the event that you choose to use Como’s (or Partner’s, as the case may be) App Publication Assistance Service to open the developer account at the App Store(s), under your (or Partner’s, as the case may be) name, you hereby grant Como (or Partner, as the case may be) a right and license to open such developer account at the App Store(s) on your behalf.

4.4.     Developer Account. In the event that developer account(s) has been created under your name in the App Store in order to make your Mobile App available to the public, you hereby acknowledge and agree that Como (or Partner, as the case may be) and you will be joint owners of such account(s).

4.5.     You further agree to provide Como (or Partner, as the case may be) such developer account login details with each applicable App Store (the “Dev Account Details”). During the Term and the Wind-down Period, Como may keep the Dev Account Details and will use commercially reasonable efforts to safeguard the Dev Account Details. By providing Como (or Partner, as the case may be) with the Dev Account Details, you hereby authorize and grant Como (or Partner, as the case may be) a right and license to (i) submit your Mobile App, under your (or Partner’s, as the case may be) name and on your behalf, to the App Store of your (or Partner’s, as the case may be) choice, including without limitation, filling out forms and applications under your (or Partner’s, as the case may be) name and on your behalf, as required by the relevant App Store in connection with the Mobile App publication process, including forms or questionnaires for the Mobile App’s content rating; based on your undertakings and representations under these Terms (ii) upgrade or update your Mobile App resource files, to the extent such upgrade or update is applicable and/or requested by you (or the Partner, as the case may be) on your behalf and/or the relevant App Store or as otherwise permitted by these Terms, and (iii) remove the Mobile App from the App Store. You represent and warrant that: (a) you will provide Como (or Partner, as the case may be) with accurate Dev Account Details and any additional information reasonably requested by Como (or Partner, as the case may be) for the purpose of performing the actions permitted under this Section; (b) you are aware that your Mobile App content rating may be determined by the relevant Apple Store based on the information shared by Como (or Partner, as the case may be) with the respective App Store and your (or Partner, as the case may be) presentations with respect to Prohibited Activity.

4.6.     Following publication, you (or the Partner, as the case may be) will be solely responsible to update the information shared by Como (or the Partner, as the case may be) with Google Play and Apple Store (and/or other mobile applications stores) to accurately depict or present its Mobile App Content. Such update shall not release you (or Partner, as the case may be) from your (or Partner’s, as the case may be) undertakings or representations under these Terms. Following publication, we could also update the information shared by you (or us or the Partner on your behalf, as the case may be) with Google Play and Apple Store (and/or other mobile applications stores) to accurately depict or present its Mobile App Content. Such update shall not release you (or Partner, as the case may be) from your (or Partner’s, as the case may be) undertakings or representations under these Terms.  

4.7.     Como (or the Partner, as the case may be) may, on a case by case basis, review the Mobile App(s) and correspondence with prior to publication to the respective App Store or thereafter in the event of rejection, filling out forms and applications on your behalf, as required by the relevant App Store(s) in connection with the Mobile App publication process. You hereby authorize Como also to act on your behalf with respect to any dispute or rejection of any App Store. For avoidance of doubt, following publication of the Mobile App via the App Store(s), you will remain responsible for Your Materials in the Mobile App on the App Store(s).

4.8.     Como (and/or the Partner, as the case may be) makes no representations or warranties of any kind, whether express, implied, statutory or otherwise, with respect to, nor takes any responsibility for, (a) the acceptance of a Mobile App by any App Store(s); and (b) your (or the Partner’s, as the case may be) compliance or non-compliance with the respective App Stores terms of use, standards or guidelines.

4.9.     App Store Payment. You acknowledge and agree that notwithstanding the App Publication Assistance Services provided by Como (or the Partner, as the case may be) hereunder, each App Store may charge a payment for opening a developer account with such App Store or any other payments determined by the App Store. Such payment will be paid by the owner of such developer account directly to such App Store or as otherwise permitted by each App Store.

5.      PAYMENTS

(If you have a valid engagement with Partner for your use of the CLM Solution: in case of a conflict between the payment terms of this Section and your payment terms with the respective Partner, your payment terms with the respective Partner shall prevail).

5.1.     Terms of Payment. In consideration for the license hereunder, you will pay Como (or Partner, as the case may be) the applicable payment under your chosen Subscription Plan. Certain Subscription Plans may entail recurring billing; others may be subject to onetime payment. You acknowledge and agree that V.A.T and/or sales tax and/or excise tax will be added to all payment hereunder if and as required by the applicable tax law in your jurisdiction.  

5.2.     Payment under your chosen Subscription Plan may be amended from time to time at Como’s sole discretion by 30 days’ prior written notice. Certain dedicated modules or modules which are dependent on external third party providers (e.g. SMS text messages, push notifications based on location; point of sale integration) that may be provided to you as part of the CLM Solution, may be modules which incur an additional and separate payment for which you will be liable for. Incorporation of such modules into the CLM Solution shall be subject to your prior approval (e.g. email approval, approval via the CLM Solution).

5.3.     Replacement or Termination of Subscription Plan. Subject to Como’s (or Partner, as the case may be) prior written approval, you may replace your chosen Subscription Plan with another Subscription Plan during the term of your Business Agreement or Partner Agreement (as applicable to you). Any replacement of Subscription Plan will enter into effect in the next billing cycle. Without derogating from the aforementioned, no refunds will be available to you in case of replacement, cancellation or termination of a Subscription Plan.

5.4.     All payments thereunder will be made to Como in accordance with your Business Agreement or Partner Agreement (as applicable to you).

5.5.     Unless agreed otherwise by the Parties, all payments hereunder will be made in USD (or local currency, if such option was made available to you), and will be made without deduction or withholding, including without limitation, all taxes, levies, or duties, except as required by law. Late payments shall bear interest at the higher of rate of 12% per annum or the maximum amounts permitted under applicable law. Transactions made over the weekend may be charged on the first following business day. Without derogating from any other right or remedy in accordance with any applicable law, Como shall have the right to suspend or deactivate the CLM Solution, including any Mobile App, or immediately terminate the Partner Agreement or Business Agreement (as applicable to you), including these Terms, without notice in case of more than 14 days’ delay of any payment. [we are not responsible for any loss]

5.6.     You acknowledge and agree that you will bear and be responsible for all applicable taxes, duties and other governmental charges imposed on you with respect to your usage of the CLM Solution and/or your rights and obligations under the Business Agreement or Partner Agreement (as applicable to you), including these Terms.

5.7.     Set-Off. You may not set-off any amount which is due to you from Como from any amount payable by you to Como (if any). You hereby acknowledge and agree that Como will have the right to set-off any and all amounts due to it under the Business Agreement or Partner Agreement (as applicable to you), including these Terms, from any amount payable by Como to you (if any).

5.8.     Expense Reimbursement. You undertake to pay Como for any and all costs and expenses paid or ought to be paid by Como (or Partner, as the case may be) to third parties in connection with the provision of CLM Solution to you. Such expenses may include payments for elements, external services or components provided by third parties which are attached to, combined or integrated with CLM Solution (for example: SMS text messages, geographical push notifications, integration to point of sale, visual QR codes and printed materials). Incorporation of such expenses shall be subject to your prior approval (e.g. email approval, approval via the CLM Solution).

6.      YOUR UNDERTAKINGS

6.1.     You will not attempt to interfere with or disrupt the CLM Solution or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the CLM Solution for your own use as permitted herein). Except as expressly specified in your Partner Agreement or Business Agreement (as applicable to you), including in these Terms, you will not: (a) engage in any Fraudulent Activity or allow others to do so; (b) copy, create derivative works of or modify the CLM Solution or any part thereof; (c) transfer, sublicense, lease, lend or otherwise distribute the CLM Solution, including any Mobile App, to any other person or entity; (d) use the CLM Solution to provide similar services to third parties; (e) otherwise use the CLM Solution, including any Mobile App, except as expressly permitted by these Terms; or (f) conduct your business in a way that reflect poorly on Como and/or the CLM Solution.

6.2.     You represent and warrant that: (i) Your Materials do not contain, distribute or promote any Prohibited Activity or any Content that may be regarded as Prohibited Activity; (ii) you are, and shall remain at all times, solely responsible for the functionality, accuracy, reliability, integrity, quality or validity of all Your Materials.; (iii) You shall not, nor shall you allow any other person or entity to: (a) use, add, create, distribute, promote or use the CLM Solution, including the Mobile App, by any means that constitute a Prohibited Activity; and (b) use in connection with the CLM Solution, including with the Mobile App, any Content generated by any other person or entity which is engaged in any Prohibited Activity. In the event that Prohibited Activity pertaining to the CLM Solution, including to any Mobile App, is detected, you shall immediately remove and resolve such Prohibited Activity.

6.3.     You represent and warrant that you will, at all times: (a) not use the CLM Solution, including the Mobile App, in any manner that may harm the privacy rights of End Users or other third parties, (b) not collect, transmit, copy, use or commercialize in any manner any End User personally identifiable information other than as permitted by the End User Privacy Policy, (c) not collect or attempt to collect, transmit, copy, use or commercialize in any manner any sensitive information in regard of End User(s) (such as: sexual life, racial or ethnic origin, physical or mental health or condition) unless the Applicable Laws (as defined below) applicable to your End Users permit such collection which shall be governed by Como End User Privacy Policy, (d) comply with the End User Privacy Policy and End User Terms of Use and all applicable privacy laws, rules and regulations with respect to your use of End User Data; (e) comply with all applicable anti-spam laws and regulations relating to any communication between you and End Users. For example, in the event you send an SMS message and/or commercial e-mail to an End User without obtaining his/her prior consent or in the event you re-include an End User in a commercial SMS/e-mail list after he/she had unsubscribed from receiving future SMS messages and/or commercial e-mails from you, you will be solely responsible and liable for such incompliance; and (f) not modify, change, remove or circumvent the End User Privacy Policy or any of its terms or remove or circumvent the availability of the End User Privacy Policy.

6.4.     You may forward to Como certain information, including personal data, collected by you in regard of End Users, prior or after the Effective Date (the “Shared Information”) provided that (i) you have obtained the explicit written (including via digital means) consent of such End Users for the collection of the Shared Information and sharing it with Como (or with Como alike) before any collection and sharing was made; and (ii) all information has been collected in accordance with any applicable laws, regulations, third parties policies or industry standards.

6.5.     Without derogating from the rights of Como under its End User Privacy Policy, you hereby represent and warrant that (i) you are the person or entity which collect and process the Shared Information as "data controller"; (ii) Como may process and/or use the  Shared Information in accordance with its  End User Privacy Policy, as may be amended by Como from time to time.

6.6.     If you chose to connect the POS (Point of Sale system; “POS”) operated in your business (or your customer business, as the case may be) to the CLM Solution, via API or otherwise (as will be requested by Como), you hereby acknowledge and agree that the POS will share with Como and Como will collect information about business transactions made in your business, including in regard of items, time of purchase and the clients and/or End Users (“POS Data”). You hereby agree not to interfere, interrupt or modify the POS Data in any way. Como shall have no liability in regard of (i) the POS Data, including its accuracy and its delivering to Como; or (ii) the operation or performance of the POS.

6.7.      Without limiting any other terms of these Terms, you acknowledge and agree that, at any time during the Term, and the Wind-down Period, Como (or the Partner, as the case may be) has the right, at each of them sole discretion (without notice) to: (a) remove Prohibited Activity and/or Fraudulent Activity from the CLM Solution, including from any Mobile App or any Content which constitutes a Prohibited Activity and/or Fraudulent Activity; (b) take any action needed to prevent or correct Prohibited Activity; (c) assist any governmental agency or other applicable legal authorities with respect to any Prohibited Activity that was detected in or made available via the CLM Solution and/or any Mobile App; and/or (d) report any Prohibited Activity to any governmental agency or other applicable legal authority with respect to any Prohibited Activity.

6.8.     You will not to use CLM Solution, including any Mobile App, to offer, display, distribute, transmit, route, provide connections to or store any Content or any other material that infringes copyrighted works or otherwise violates or promotes the violation of the Intellectual Property Rights of any third party. Como has adopted and implemented a policy that provides for the termination in appropriate circumstances of the accounts of users who repeatedly infringe or are believed to be or are charged with repeatedly infringing the rights of copyright holders. Como Copyright Policy is available at: http://www.como.com/copyright-policy/. In compliance with the safe harbor provision(s) of the Digital Millennium Copyright Act of 1998 ("DMCA"), Como reserves the right to take down any and all Content posted via use of the CLM Solution, including any Mobile App, at any time, in its sole discretion. Without limiting other provisions herein, you agree to assist Como with any such activities.

6.9.     You agree that: (a) your activities will not be inconsistent with these Terms; (b) you will make no representations, warranties or agreements on behalf of Como in your own privacy policy or anywhere else; and (c) Como will not be responsible for, nor have any liability with respect to: (i) any agreement between you and an End User or an End User's breach of your privacy policy; (ii) any agreement between you and any Business or Partner (as the case may be), or breach by a certain Business or Partner (as the case may be) of your privacy policy; (iii) your  failure to provide any privacy policy and/or to obtain valid consent to your privacy policy or to other practices that require consent from End Users (or Business, as the case may be); or (iv) your failure to comply with the terms and conditions of your own privacy policy.

6.10.   You will be at all times responsible for all distribution channels and methods of your Mobile App(s). Como (and/or the Partner, as the case may be) will have the right to remove any Mobile App from the App Stores and/or CLM Solution and/or Facebook which, in Como’s (and/or the Partner, as the case may be) sole discretion, was distributed in violation of any applicable law and industry best practices and/or these Terms. You bear sole and exclusive responsibility for ensuring the accuracy, adequacy, completeness, authenticity, validity, and legality of all Your Materials (including prices and descriptions of products and services it offers to End Users). You will not ask or cause End User(s) to provide any information (via the Mobile App “Forms” page or otherwise) which is or may be subject to specific rules and/or regulations (e.g. medical records, financial information) without first confirming with Como (or the Partner, as the case may be) that it is compliant with such rules and/or regulations. Notwithstanding the foregoing, if such information is provided by End User(s), you will notify Como (and Partner, as the case may be) immediate to remove such info from the Mobile App.

6.11.   You acknowledge and agree that in addition to compliance with these Terms and all Como policies incorporated herein, use of any e-commerce platforms and payment services providers in connection with a Mobile App or CLM Solution, as well as any distribution of a Mobile App on or from any third party platforms and/or services, (collectively, the “Third Party Services”) shall be subject to the respective terms and conditions prescribed by the Third Party Services, to which you may be legally bound by virtue of your engagement with such Third Party Services (by way of example only, such Third Party Services may include Apple Store; Google Play, Amazon, Shopify and PayPal). Como (and/or Partner, as the case may be) is not responsible for any Third Party Services or use thereof. By opting to integrate Third Party Services in the Mobile App, you expressly consent and authorizes Como (and/or Partner, as the case may be) to interface with such Third Party Services through your (or Partner’s, as the case may be) account therein. Unless you receive Como’s prior written approval, you will not permit or authorize a third party to alter or modify any Mobile App.

6.12.   Without derogating from the generality of the foregoing, if you engage in offerings, dealings or transactions with End Users, you must comply with all applicable consumer protection laws.

6.13.   You assume the full responsibility and risks of engaging in any e-commerce offerings, dealings, transactions and interactions with End Users and/or using, offering and/or providing End Users with any rewards and/or benefits via the CLM Solution, including via the Mobile App. Any and all communications and interactions between you and End Users or Third Party Services, all e-commerce and other kinds of dealings and transactions conducted in connection with the CLM Solution, including the Mobile App, and any failure by you to provide your End Users with any reward or benefit in connection with the CLM Solution, including the Mobile App, and all legal or other consequences resulting from the above, are strictly between you and the End User or Third Party Services. Como is not a party to those communications, interactions, offerings, dealings and transactions and assumes not responsibility for such.

7.      CUSTOMER LOYALTY FEATURES.

By using the CLM Solution, including by choosing to add, use or implement certain services, reward programs and/or loyalty features to the CLM Solution, including the Mobile App, such as point accumulation plans, scratch card, punch card, coupons, gift card, cash back, pre-paid card, “buy with budget” or their equivalent (collectively hereinafter “Loyalty Features”), you hereby undertake to comply with (i) the End User Terms of Use, which are enforceable against you by End User(s) or by Como on behalf of End Users’ or on its own behalf; and (ii) any and all applicable law and regulations requirements (including without limitation:  local, federal or state laws or regulations applicable to End-Users) that governs your use and/or your End Users use of the CLM Solution, including the Mobile App(s), including without limitation, consumer protection, privacy, defamation, mass email, spam, gambling/gaming, export control, unfair competition and false advertising (together: “Applicable Laws”).

Your (or Partner’s on your behalf) usage of the CLM Solution may be innovative, dynamic and/or creative due to its variety of options and capabilities. HOWEVER, YOU MUST NOT USE THE CLM SOLUTION IN ANY MANNER WHICH MAY INFRINGE ANY APPLICABLE LAWS.

COMO IS AND WILL NOT BE RESPONSIBLE FOR AND DOES NOT WARRANT END USERS USING ANY SERVICES AND/OR LOYALTY FEATURES, OR INCREASING SALES BY USING IT. COMO IS AND WILL NOT BE RESPONSIBLE FOR AND DOES NOT WARRANT THE ACCURACY, COMPLETENESS, TIMELINESS, ADEQUACY, LEGALITY OR APPROPRIATENESS OF ANY SERVICE AND/OR LOYALTY FEATURE. You assume the full and sole responsibility and risks of exercising, implementing and/or using the CLM Solution, including the Mobile App and any features and/or services available therein and/or relying on them. Any and all communications between you (or Partner on your behalf) and End user, any offerings made by you (or Partner on your behalf), transactions conducted in connection with Loyalty Features, and all legal, financial or other consequences resulting from the above and/or any dispute between you and any End User arises in connection with any Loyalty Feature, are strictly between you and the End User and Como is and will not be a party to those communications, offerings, dealings, transactions and/or disputes.

The expiration and/or termination of the Business Agreement or Partner Agreement (as the case may be) will not derogate from your obligations to honor, fulfil or provide any remaining budget/credit, gift card, reward or otherwise any benefit which was offered by you (or Partner on your behalf) to any End User, via the CLM Solution, including the Mobile App.

8.      PROMOTION AND MARKETING

8.1.     You (and/or Partner on your behalf, as the case may be) will not issue any press release or any other marketing materials regarding these Terms without Como’s prior written approval. You may advertise and promote the Mobile App(s) from your website and may, in addition, advertise and promote the Mobile App(s) from your other online or offline properties ("Your Promotion"), provided, however that you will not use Como’s Marks in any End User’s account that you may have on a third-party platform or service. Your Promotion from your website shall include a link to the Mobile App(s) download page. In the event that a Mobile App does not automatically include the notice "Powered by Como" or the Como Mark (collectively, the "Como Notice"), in a prominent and visible format via a web page, in connection with Your Promotion, you (and/or Partner on your behalf, as the case may be) will include a link to www.como.com in Your Promotion. As an example, you may satisfy the requirements of this Section by using the following wording: "[Mobile App name] Powered by Como”.

8.2.     You (or Partner on your behalf) will neither remove nor conceal any Como’s Mark and/or Como Notice appearing on the CLM Solution, including any Mobile App, nor from any Documentation provided by Como. You (or Partner on your behalf) will not add any other Mark to the same without Como's prior written consent.

8.3.     You agree that Como (and/or Partner, as the case may be) may: (a) feature a Mobile App in different marketing outlets and/or collateral, including without limitation newsletters, case studies, email or advertisement campaigns, web pages and press release; (b) identify you as a user of the CLM Solution on Como’s websites, client lists, press releases, and in other marketing; and (c) publish a brief description and/or case study highlighting your deployment of a Mobile App or any part thereof and/or your use of the CLM Solution (each a "Como Promotion"). In the event that you wish to be excluded from a specific Como Promotion, you shall notify Como (and Partner, as the case may be) in writing. Unless otherwise agreed by Parties, you will not be entitled to any compensation as a result of any Como Promotion.

9.      OWNERSHIP OF IP AND PROPRIETARY RIGHTS

9.1.     Common ownership. It is hereby agreed that both you (and Partner, as the case may be) and Como will retain all right, title and interest in and to the respective Mobile App subject to the following sub-sections (9.2-9.9).

9.2.     Except as expressly granted in these Terms, as between you (and/or Partner, as the case may be) and Como: (i) Como retains all right, title and interest in and to the CLM Solution (excluding TPC), the Como Marks and any and all marketing, promotional materials and Documentation provided by Como hereunder, and any customization and/or derivatives thereof (whether developed by you or by Como), including any Intellectual Property Rights therein (collectively: “Como’s IP”); and (ii) all use of the Como’s IP shall inure to the benefit of Como and you will not: (y) contest, or assist others to contest, Como’s rights or interests in and to the Como IP or the validity of Como’s rights in and to the Como’s IP and all applications, registrations or other legally recognized interests therein, or (z) seek to register, record, obtain or attempt to pursue any Intellectual Property Rights or other proprietary rights or protections in or to said Como’s IP. All rights in the Como’s IP which are not expressly granted herein are reserved by Como. You will retain and reproduce any copyright, disclaimers and other proprietary notices in full and as they appear in or on the CLM Solution and Mobile App.

9.3.     Except as expressly granted in these Terms, as between you (and/or the Partner, as the case may be), and Como, you retain all right, title and interest in and to Your Materials, Content and Marks that were made available via the CLM Solution, including via the Mobile App (except for End Users’ Content), and any derivatives thereof, including any Intellectual Property Rights therein (collectively: “Business IP”). As between Como (and Partner, as the case may be) and you, all use of the Business IP shall inure to your benefit and Como (and/or Partner, as the case may be) shall not: (y) contest, or assist others to contest, your rights and/or interests in and to the Business IP or the validity of your rights (as applicable) in and to the Business IP and all applications, registrations or other legally recognized interests therein, or (z) seek to register, record, obtain or attempt to pursue any Intellectual Property Rights or other proprietary rights or protections in or to said Business IP.  

9.4.     You will not assert any Intellectual Property Rights with respect to the CLM Solution or any element, derivation, adaptation, variation or name thereof. Except as permitted by these Terms or by the terms and condition of a certain Subscription Plan, a Mobile App shall not include and/or be promoted using any Intellectual Property Right of Como or its authorized third-party licensors, unless and to the extent that Como adds its own button, logo or any other branded element to a Mobile App or unless otherwise provided in these Terms.

9.5.     You will not remove, obscure or alter any notices of Intellectual Property Rights or disclaimers appearing in or on any Content provided by Como, whether available via the CLM Solution, a Mobile App or otherwise.

9.6.     Como encourages all its Businesses and Partners to customize the Como Platform, upload, post, publish or make available Your Materials on the CLM Solution, including the Mobile App and to develop, conceive, categorize and/or implement new functionality, schemes, features, sections, business models, ideas or inventions within the CLM Solution and/or Mobile App (collectively, “Additional Inventions”). When doing so, you grant Como an irrevocable, perpetual, non-exclusive, royalty-free, transferable, assignable, sub-licensable and worldwide license, to use, reproduce, distribute, transmit, make derivative works of, display, copy, make available to the public and perform that Your Inventions, whether through the Internet, any software and/or mobile application and/or device or otherwise, in any media formats and through any media channels known today and developed in the future (“Como License to Additional Inventions”). Subject to the above mentioned, you retain all right, title and interest in and to the Additional Inventions, including any Intellectual Property Rights pertaining thereto. Nevertheless, it is hereby acknowledged and agreed that any application or registration of any of Additional Inventions (e.g. patent, copyright or trademark application or registration, or other application or registration of intellectual property rights) will be subject to Como License to Additional Inventions, and you will not undermine Como’s rights under the Como License to Additional Inventions herein in any manner.

9.7.     You agree that Como may remove at any time Your Materials, or any part thereof, or Features it has uploaded to the CLM Solution including the Mobile App in its sole discretion, in accordance with these Terms.

9.8.     The logos of Third Party Services are the proprietary trademarks their respective third party owners.

9.9.     Subject to Section 16.5 below and for avoidance of any doubt, upon expiration of the Wind-down Period, Como will remain the sole owner of the Como IP and you will remain the sole owner of Business IP and any common ownership of both Parties, Como and you, in the Mobile App will be cancelled and void.

9.10.   End User Data. End User’s may provide personal and non-personal information during their use of the CLM Solution, including the Mobile App, including certain data regarding their activities at Business’s premises (e.g. information received via integration of the CLM Solution with third parties such as POS and social networks) (collectively, the "End User Data"). The End User Data is collected and shared in accordance with the End User Privacy Policy.

10.    CONFIDENTIALITY

10.1.   During the term of your Business Agreement or Partner Agreement (as applicable to you), we (the “Disclosing Party”) may have disclosed or may disclose to you (the “Receiving Party”) certain Confidential Information. Receiving Party (a) a) will keep all Confidential Information in strict confidentiality and will not disclose the Confidential Information to any third party unless specifically permitted under these Terms; (b) will use the Confidential Information solely for its performance hereunder and under the Business Agreement or Partner Agreement (as applicable to it); (c) is authorized to disclose Confidential Information to any such employees of receiving party, and solely with respect to Como, also to any of its shareholders, directors  consultant and Affiliates, who are actively and directly participating in the performance by Como hereunder and/or under the Business Agreement or Partner Agreement (as applicable to you) or who otherwise need to know for such purpose, and whom the Receiving Party shall first inform of and require to adhere to these Terms (d) will use at least the same degree of care to safeguard the Disclosing Party’s Confidential Information that it uses to protect its own Confidential Information, and in any event not less than a reasonable degree of care; (e) will make copies of materials embodying Confidential Information only as needed for the performance hereunder and/or Business Agreement or Partner Agreement (as applicable to you), all of which will include any existing markings indicating that they are the Confidential Information of Disclosing Party, or will have markings supplied by Disclosing Party; (f) will immediately upon becoming aware of a breach of its security that reasonably may have resulted in unauthorized access to the Disclosing Party's Confidential Information, notify Disclosing Party and shall cooperate fully with Disclosing Party’s investigation of and response to the incident; and (f) will not, without the prior written consent of the Disclosing Party, disclose to any person any of the terms or conditions of these Term and/or the Business or Partner Agreement, as applicable.

10.2.   Disclosing Party will not be liable for disclosure of Confidential Information if made in response to a valid order of a Court or authorized agency of government; provided that (to the extent permitted by law) the Receiving Party provides the Disclosing Party with written notice promptly upon the Receiving Party's knowledge or receipt of notification of the order, so that such party, if appropriate, may seek relief in the form of a protective order, an agreement to maintain the confidentiality by the body who demanded the disclosure or initiate any other steps to limit or avoid disclosure. In the event that such protective order or other relief is not obtained, receiving party will disclose only that portion of the disclosing party’s Confidential Information that its counsel advises that it is legally required to disclose, and at the Disclosing Party’s cost and expense, will work with disclosing party to minimize the extent and effects of such disclosure.

10.3.   At any time during the term of your Business Agreement or Partner Agreement (as applicable to you), upon the written request of the Disclosing Party, Receiving Party shall promptly either: (i) return to the Disclosing Party all Confidential Information furnished to the Receiving Party by the Disclosing Party, without retaining any copies thereof or (ii) destroy all Confidential Information furnished to the Receiving Party by the Disclosing Party, including any writing or recordings whatsoever prepared by the Receiving Party or its representatives based upon the Disclosing Party's Confidential Information, and receiving party will furnish to Disclosing Party a certificate signed by an authorized officer of Receiving Party supervising such destruction and attesting under penalty of perjury that Confidential Information has been permanently destroyed, except to the extent a party is advised by counsel that such destruction is prohibited by law. Notwithstanding the foregoing, neither the Receiving Party nor any of its representatives shall be obligated to return or destroy Confidential Information that has been electronically archived by any such party in accordance with its automated security and/or disaster recovery procedures  and made in the ordinary course of business; provided further that any Confidential Information so shall remain subject to the confidentiality provisions contained herein for so long as it is retained by the Receiving Party, irrespective of these Term and/or Business Agreement or Partner Agreement (as applicable).  

10.4.   The duty to protect Confidential Information shall expire three (3) years from the date of termination of your Business Agreement or Partner Agreement (as applicable to you).

10.5.   You will not issue any public announcement pertaining to these Terms, your Business Agreement or Partner Agreement (as applicable to you) without Como’s prior written approval.

11.    REPRESENTATIONS AND WARRANTIES

11.1.   Either Party represents and warrants that: (a) it has all requisite power and authority to execute and enter into the Business Agreement or Partner Agreement (as applicable to you), including to agree to these Terms and perform its obligations therein and hereunder and that it is a valid and binding agreement by such Party; and (b) the execution and delivery of the Business Agreement or Partner Agreement (as applicable to you), including these Terms, and the performance under it, will not constitute a breach or default of or otherwise violate any agreement to which either one is a party to or violate any right of any third parties arising therefrom;  

11.2.   You represent and warrant that: (a) you are in legal age to form a binding agreement with Como (and/or Partner, as the case may be), (b) you are neither barred nor otherwise legally prohibited from using the CLM Solution under the laws of the country in which you reside or from which you access or uses the CLM Solution, (c) any and all activities it undertakes in connection with these Terms shall be performed in compliance with all applicable laws, rules and regulations, including, without limitation, data privacy laws, rule and regulations, (d) Your Materials are and will be wholly owned or validly and legally licensed for use as contemplated by these Terms during the Term and the Wind-down Period or are in the public domain and do not and will not, at any time during the Term and the Wind-down Period, infringe or violate any Intellectual Property Rights or any other rights of any person or entity, (e) as between you and Como, you are solely responsible for Your Materials, the descriptions and prices of all products or services that the you offer to End Users via the Mobile App, the End User Content and any Content or technology embedded in a Mobile App by you or otherwise made available via a Mobile App by you; (f) you will comply with these Terms and Como Privacy Policy, as shall be amended from time to time by Como; (i) you will not bind Como to any agreement or obligation or give any representation, warranty or guarantee with respect to Como, except for those that are specifically authorized by Como in advance and in writing; and (j) you will only use the CLM Solution for purposes and in the manner expressly permitted by these Terms and in accordance with all applicable laws and regulations.

11.3.   Como represent and warrant that the CLM Solution shall operate materially in accordance with its applicable specifications and applicable law.

11.4.   Como does not make any representation with respect to so-called “open source” or free software that may be included in the Como Platform. Como hereby disclaims any and all liability to you or any third party related to any open source software that may be accompanying the Como Platform.

12.    NO WARRANTY.

12.1.   THE CLM SOLUTION, INCLUDING ANY MOBILE APP, IS PROVIDED BY COMO (AND/OR PARTNER, AS THE CASE MAY BE) "AS IS". EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND TO THE FULLEST EXTENT ALLOWABLE BY LAW, COMO (AND/OR PARTNER, AS THE CASE MAY BE) MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF BUSINESSABILITY, FITNESS FOR A PARTICULAR USE OR NON-INFRINGEMENT, OR THOSE ARISING IN THE COURSE OF OR CONNECTED TO THE PERFORMANCE HEREUNDER, AND DISCLAIMS SUCH WARRANTIES. IN ADDITION, COMO (AND/OR PARTNER, AS THE CASE MAY BE) DOES NOT REPRESENT OR WARRANT THAT: (I) THE CLM SOLUTION, INCLUDING THE MOBILE APP, OR ANY OF ITS PRODUCTS, SERVICES OR SOFTWARE WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED; (II) THE OPERATION OF THE CLM SOLUTION, INCLUDING THE MOBILE APP, OR ANY OF ITS PRODUCTS, SERVICES OR SOFTWARE WILL BE UNINTERRUPTED; (III) DISTRIBUTION OF THE CLM SOLUTION, INCLUDING MOBILE APP, WILL BE COMPATIBLE WITH OR PERMITTED FOR USE WITH ANY THIRD PARTY SERVICES, INCLUDING WITHOUT LIMITATION ANY THIRD PARTY DISTRIBUTION CHANNEL OR APP STORE; (IV) YOU (OR YOUR END USERS OR CUSTOMERS, AS THE CASE MAY BE) WILL PROFIT OR DERIVE ANY ECONOMIC BENEFIT FROM YOUR USE OF THE CLM SOLUTION, INCLUDING THE MOBILE APP; OR (V) ANY CONTENT WILL BE MADE AVAILABLE VIA THE , INCLUDING THE MOBILE APP, OR OTHERWISE. ANY RELIANCE ON THE COMO CLM SOLUTION, INCLUDING THE MOBILE APP, OR RELATED DOCUMENTATION AND SERVICES IS AT YOUR OWN RISK, AND COMO (AND/OR PARTNER, AS THE CASE MAY BE)  DO NOT AND WILL NOT BE LIABLE FOR THE COMO CLM SOLUTION, INCLUDING THE MOBILE APP, OR RELATED DOCUMENTATION AND SERVICES, INCLUDING WITHOUT LIMITATION ANY MISTAKES OR INACCURACIES IN MERCHNT’S LOYALTY SCHEME OR REWARD PROGRAMS CREATED OR MADE AVAILABLE THROUGH THE COMO CLM SOLUTION, INCLUDING THE MOBILE APP, AND ITS OBLIGATION TO TAKE ACTION TO MEND MALFUNCTIONS AS SPECIFIED IN THESE TERMS. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

12.2.   Como is not responsible for and does not provide any warranty with respect to any Content (including, without limitation, Content which is part of a Mobile App, TPC, End User Content or Your Materials) or any third-party sites that can be linked through the CLM Solution, including from the Mobile App. Further, Como does not guarantee that any Content (including, without limitation, TPC, End User Content or Your Materials) will be made available through a Mobile App, the CLM Solution, continuously or at all. Como does not have any obligation to monitor the End User Content or Your Materials that are uploaded, posted, submitted or otherwise transmitted using the CLM Solution, including the Mobile App or otherwise, for any purpose and, as a result, is not responsible for the accuracy, completeness, appropriateness, legality or applicability of the End User Content, Your Materials or anything said, depicted or written by you or End Users, including, without limitation, any information obtained by using the CLM Solution, including the Mobile App. Como does not endorse any End User Content or Your Materials or any opinion, recommendation or advice expressed therein and Business agrees to waive, and hereby does waive, any legal or equitable rights or remedies you have or may have against Como with respect thereto. WHILE COMO IS UNDER NO OBLIGATION TO DO SO, WITHOUT LIMITING ANY OTHER TERMS OF THESE TERMS, COMO RESERVES THE RIGHT TO REMOVE AND PERMANENTLY DELETE ANY CONTENT FROM ANY APPLICATION(S) OR MOBILE APP(S) WITHOUT NOTICE IN THE EVENT SUCH CONTENT IS PROVIDED IN VIOLATION OF THESE TERMS.

13.    INDEMNIFICATION

13.1.   You (the "Indemnifying Party") shall defend, hold harmless, and indemnify Como and/or its directors, officers, employees, agents, successors and permitted assignees and/or its Affiliates and/or its directors, officers, employees, agents, successors and permitted assignees (collectively "Indemnified Party"), from and against any and all claims, damages, losses, suits, actions, demands, proceedings, expenses and/or liabilities of any kind, (including but not limited to reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification) threatened, asserted or filed (collectively, "Claims") brought or made by any third party against the Indemnified Party arising out of: (a) a breach or alleged breach of any warranty, representation or obligation made by the Indemnifying Party under these Terms; (b) any use by Indemnifying Party, or any one on its behalf, of the CLM Solution and/or a Mobile App in any manner inconsistent with or in breach of these Terms; (c) violation of End User’s privacy rights by Indemnifying Party; or (d) Indemnifying Party failure to satisfy any of its obligations pursuant to any loyalty scheme and/or reward plan offered by it to End Users.

13.2.   The Indemnified Party shall: (a) promptly notify the Indemnifying Party of such Claim; provided that a failure to give such prompt notice shall not excuse or diminish the Indemnifying Party’s obligations under this Section, (b) provide the Indemnifying Party, at the cost of the Indemnifying Party, with reasonable information, assistance and cooperation in defending the lawsuit or Claim, and (c) give the Indemnifying Party full control and sole authority over the defense and settlement of such Claim; provided, however, that any settlement will be subject to the Indemnified Party’s prior approval and provided further that Indemnified Party shall not be required to allow Indemnifying Party to assume the control of the defense of a Claim to the extent that Indemnified Party determines that (i) such claim relates to the Como Platform or any part thereof, (ii) any relief other than monetary damages is sought against Indemnified Party, (iii) there may be a conflict of interest between the Indemnifying Party and Indemnified Party in the conduct of the defense, or (iv) settlement of, or an adverse judgment with respect to, such Claim could reasonably be expected to establish a precedential custom or practice materially adverse to the continuing business interests of Indemnified Party, and in such events the costs of defense will be considered "Claims" as defined above. The Indemnified Party may join in the defense of such Claim with counsel of its choice at its own expense.

14.    INFRINGEMENT CLAIMS

If in Como’s sole discretion, the CLM Solution is or is likely to become, subject of an infringement Claim, then Como may, at its expense, either: (a) procure the right to continue distributing and using the CLM Solution; (b) replace or modify the CLM Solution so that it becomes non-infringing; or (c) terminate these Terms and the Business Agreement or Partner Agreement (as applicable to you). Notwithstanding the foregoing, Como shall have no obligation for any Claim of infringement arising from: (1) any combination of the CLM Solution with programs, equipment or hardware not supplied or approved in writing by Como, where such infringement would not have occurred but for such combination; (2) the adaptation or modification of the CLM Solution by Partner, where such infringement would not have occurred but for such adaptation or modification; or (3) the use of a the CLM Solution in a manner for which it was not designed or intended or which is not permitted hereunder, where such infringement would not have occurred but for such use. THIS SECTION STATES THE ENTIRE LIABILITY OF COMO’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.

15.    LIMITATION OF LIABILITY

IN NO EVENT WILL COMO, ITS LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS, LOSS OF GOODWILL, LOST REVENUE, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE CONFIGURATION, INSTALLATION, DISTRIBUTION, DISPLAY OR USE OF OR INABILITY TO USE THE CLM SOLUTION, INCLUDING THE  MOBILE APP, UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT COMO OR ITS THIRD PARTY LICENSORS WERE OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. IN NO EVENT SHALL COMO’S AND/OR ITS THIRD PARTY LICENSORS’ AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THESE TERMS, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE REVENUES GENERATED FROM YOU DURING A TWELVE (12) MONTHS PERIOD PRECEDING THE CLAIM IN THE APPLICABLE TERRITORY AND BUSINESS SEGMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.

IN CASE YOU CHOSE TO USE PARTNER’S SERVICES FOR ENGAGEMENT WITH THE CLM SOLUTION; ANY CLAIM YOU MIGHT HAVE WITH REGARD TO THE CLM SOLUTION SHALL BE ADDRESSED ONLY TO PARTNER.

16.    TERM AND TERMINATION

The Business Agreement or Partner Agreement (as applicable to you), including these Terms, shall commence on the Effective Date, and shall continue in force thereafter, until terminated or expired as provided herein (the "Term"):

16.1.   Termination for Convenience. Either Party may terminate the Business Agreement or Partner Agreement (as applicable to you), including these Terms, at any time for any reason and without liability by thirty (30) days prior written notice of to the other Party for such termination.

16.2.   The Business Agreement or Partner Agreement (as may be applicable to you), including these Terms, will automatically and immediately expire or terminate: (i) at such time that you stop paying Como (or Partner, as the case may be) the payments under your chosen Subscription Plan; or (iii) upon the elapse of thirty (30) days as of the date in which you close your Account.

16.3.   Without derogating from any provision herein, if the CLM Solution is provided to you through your engagement with a Partner, these Terms may be terminated by Como upon termination or expiration of its agreement with the respective Partner, without any liability of Como to you.

16.4.   Immediate Termination. Como may immediately suspend and/or deactivate the Account, the CLM Solution, including the functionality of certain Mobile App(s) or any service thereof, or terminate these Terms and the Business Agreement or Partner Agreement (as applicable to you), in any one of the following instances: (a) if you materially breached any obligation, representation and/or warranty contained in the Business Agreement or Partner Agreement (as may be applicable to you), including these Terms; (b) if you breached any obligation, representation and/or warranty contained in the Business Agreement or Partner Agreement (as may be applicable to you), including these Terms and failed to cure such breach within fourteen (14) days after receiving written notice thereof from Como (or Partner, as the case may be); (c) if you breached any material obligation, representation and/or warranty contained in the Business Agreement or Partner Agreement (as may be applicable to you), including these Terms and failed to cure such breach within two (2) days after receiving written notice thereof from Como (or Partner, as the case may be); (d) if you engaged in any action that, in Como’s sole discretion, reflects poorly on Como and/or the CLM Solution or otherwise disparages or devalues Como’s reputation or goodwill; (e) if Como is required to suspend or deactivate certain service in accordance with any applicable law or due to a court or governmental order; (f) if you become insolvent or makes any assignment for the benefit of creditors or similar transfer evidencing insolvency, or suffers or permits the commencement of any form of insolvency, administration or receivership proceeding, or has any petition under bankruptcy, insolvency or administration law filed against it, which petition is not dismissed within thirty (30) days of such filing, or has a trustee, administrator or receiver appointed for a material portion of its business or assets. If you become subject to any of the events described in this clause (f) it shall immediately notify Como in writing; (g) in case of a Change of Control in your company; or (h) if Como reasonably determines that it is commercially impractical for Como to continue supporting the CLM Solution, or any part thereof, including the Mobile App, under these Terms and/or the Business Agreement or Partner Agreement (as applicable to you) as a result of legal, business or technical considerations.

16.5.   Effect of Termination. Upon the termination or expiration of the Business Agreement or Partner Agreement (as may be applicable to you), including these Terms, for any reason: (a) all rights and licenses granted hereunder by either Party shall cease immediately, except for: (i) Como License, which shall remain in full force and effect until the earlier of ("Wind-down Period"): (1) you (or Partner on your behalf, as the case may be) remove the Mobile App from all App Stores or (2) Como (or Partner, as the case may be) removes the Mobile App(s) from all App Stores; and (ii) Como License to Additional Inventions under Section 9.6 above; (b) you shall promptly return to Como (and/or Partner, as the case may be), or destroy and certify the destruction of, all of Como’s Confidential Information, in accordance with Section 10 and return to Como (and/or Partner, as the case may be) all marketing and promotional materials provided to you by Como (or Partner, as the case may be); (c) you shall immediately cease distributing the Mobile App; (d) Como shall have the exclusive right to modify the CLM Solution, including Mobile App, or any part thereof, or remove any Mobile App from the CLM Solution and/or disable any Mobile App, or any part thereof; and (e) Como (and/or Partner, as the case may be) shall have the right to remove or transfer ownership of a Mobile App in the App Store, if distributed under Partner’s developer account in such App Store. Como will not be liable to you or to any third party for termination of the Business Agreement or Partner Agreement (as applicable to you), the termination of your access to the CLM Solution, including the Mobile App, the transfer of your Mobile App to another developer account in the App Stores and any loss of data and/or revenue that might result from all of the aforementioned. UPON ANY TERMINATION OR SUSPENSION, YOUR MATERIALS, DATA OR INFORMATION WHICH IS RELATED TO THE ACCOUNT MAY NO LONGER BE ACCESSED BY YOU. Furthermore, Como (and/or Partner, as the case may be) will have no obligation to maintain any information stored in its data centers related to the Account or to forward any information to you or any third party.

16.6.   The following Sections: 9, 10, 12, 13, 15, 16.5, this Section 16.6, 17.8-17.11 and 17.13, as well as other provisions of these Terms that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of these Terms, shall survive any termination or expiration of the Business Agreement or Partner Agreement (as applicable to you).

17.    MISCELLANEOUS

17.1.   Additional Terms. Certain elements of the CLM Solution or other services or programs offered by Como may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions (the "Additional Terms") in order to use or access them. If there is a conflict between the terms of these Terms and the Additional Terms, the Additional Terms will take precedence.

17.2.   Nothing in the Business Agreement or Partner Agreement (as may be applicable to you), including these Terms, shall be construed as preventing or otherwise limiting Como from entering into similar agreements with any third party and/or receiving similar or different services from any third party.

17.3.   To enter to the Business Agreement or Partner Agreement (as may be applicable to you), including to these Terms, and any Subscription Plan and/or receive App Publication Assistance Services, you must be at least 18 years old or the legal age of majority in the jurisdiction in which you reside.

17.4.   All rights which are not expressly granted herein are reserved by Como. You may not make any use of the CLM Solution in whole or in part in any manner not expressly permitted by these Terms and/or the Business Agreement or Partner Agreement (as may be applicable to you).

17.5.   The Business Agreement or Partner Agreement (as may be applicable to you), together with these Terms, constitute the entire agreement between the Parties with respect to the subject matter hereof. The Business Agreement or Partner Agreement (as may be applicable to you), together with these Terms, supersede any other prior or collateral agreements with respect to the subject matter hereof, whether oral or written.

17.6.   Neither the Business Agreement or Partner Agreement (as may be applicable to you), nor these Terms nor any right, obligation or interest herein, may be assigned or delegated by you without the prior written consent of Como. Any attempted unauthorized assignment or delegation shall be null and void. You will notify Como in writing immediately following a sale of all or substantially all your business’ assets; any merger, consolidation or acquisition of your business with, by or into another corporation, entity or person; or any change in the ownership of more than fifty percent (50%) of the voting capital stock of your business or its Controlling entity (collectively, “Change of Control”). Como may assign the Business Agreement or Partner Agreement (as may be applicable to you), including these Terms, or any rights or delegate any obligations of Como under the Business Agreement or Partner Agreement (as may be applicable to you), including hereunder, without your consent. Como will be released of all rights or liabilities under the Business Agreement or Partner Agreement (as may be applicable to you), including under these Terms, upon consummation of such assignment, transfer or delegations.

17.7.   These Terms, together with the Business Agreement or Partner Agreement (as may be applicable to you), shall be binding on and inure to the benefit of each of the Parties and their respective successors and assignees. The Business Agreement or Partner Agreement (as may be applicable to you), including these Terms, are not made for the benefit of any third party who is not a party hereto, and only the parties hereto or their respective successors and permitted assigns will acquire or have any benefit, right, remedy or claim under or by reason of the Business Agreement or Partner Agreement (as may be applicable to you), including these Terms. You will not use the Business Agreement or Partner Agreement (as may be applicable to you), including these Terms, to enforce any contractual relationship or provision on each other and/or on Como. Como will not be a party to any dispute between you arising out of and/or in connection with the Business Agreement or Partner Agreement (as may be applicable to you), including these Terms.

17.8.   The Business Agreement or Partner Agreement (as may be applicable to you), including theses Terms, will be governed by and construed under the laws of Israel, excluding its conflict of law rules and principles. Each Party agrees to submit to the personal and exclusive jurisdiction of the courts of Tel-Aviv, Israel. The parties specifically exclude from application to the Business Agreement or Partner Agreement (as may be applicable to you), including theses Terms, the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. Notwithstanding the foregoing, Como may lodge a claim against you pursuant to the indemnification clauses above, in any court adjudicating a third party claim against Como, in which case the law that governs the third party claim against Como shall also govern Como’s indemnification claim against you.

17.9.   Neither Party shall be liable under the Business Agreement or Partner Agreement (as may be applicable to you), including hereunder, by reason of any failure or delay in the performance of its obligations on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, Internet outages, acts of God, war, governmental action, or any other cause that is beyond the reasonable control of such party.

17.10. If any provision of the Business Agreement or Partner Agreement (as may be applicable to you), including these Terms, is held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of the Business Agreement or Partner Agreement (as may be applicable to you), including these Terms, and the invalid or unenforceable provisions shall be replaced by a mutually acceptable provision, which being valid, legal and enforceable comes closest to the original intentions of the parties hereto and has like economic effect.

17.11. The failure to require performance of any provision of the Business Agreement or Partner Agreement (as may be applicable to you), including these Terms, shall not affect a party’s right to require performance at any time thereafter; nor shall waiver of a breach of any provision constitute a waiver of the provision itself.

17.12. The Parties hereto are and shall remain independent contractors, and nothing herein shall be deemed to create any agency, partnership or joint-venture relationship between the parties. Neither party shall be deemed to be an employee or legal representative of the other, nor shall either party have any right or authority to create any obligation on behalf of the other party.

17.13. All notices required or permitted under the Business Agreement or Partner Agreement (as the case may be), including theses Terms, shall be in English and in writing and shall be delivered (a) to Como by facsimile, e-mail or other electronic means, by registered or certified mail (postage prepaid) or by overnight courier service, at the address: 2 Ilan Ramon Street, Ness-Ziona Israel (Attn: Conduit Ltd. (d/b/a “Como”) or at such other address as Como shall have furnished to you in writing and also to email: legal@como.com. Any notice to Partner or Business shall be delivered to Partner’s or Business’s address set forth in the Business Agreement or Partner Agreement (as the case may be) or to any other address of Partner or Business as furnished by it in writing. A notice shall be deemed given (i) upon receipt when delivered personally, (ii) upon verification of receipt via facsimile or e-mail, (iii) within one (1) business day of being sent by overnight courier, or (iv) within three (3) business days of being sent by registered or certified mail, and (b) to you - to the e-mail address provided by you in connection with your Account, the Business Agreement or Partner Agreement (as the case may be). For purposes of the foregoing, Como shall be permitted to rely upon the e-mail address provided by you to Como as provided above and shall not be responsible for delays in the delivery of e-mails which delays are not associated with Como’s mail server.

 

Last Update Date: April 24, 2016