HYPERCORE AGREEMENT

 

This Agreement (the “Agreement”) is a legal agreement by and between Hypercore Financial Technologies Ltd., a company incorporated under the laws of the State of Israel having its principal place of business at (the “Company”) and you ("you" or the "Customer") (each, as a “Party”, and collectively as the “Parties”).

 

The Company owns a cloud-based loan origination and management platform for lenders (including any utility, application program interface or tools related thereto), which is provided to you through a SaaS model (collectively, the “Software”).

 

This Agreement governs the use of the Software. This Agreement takes effect when you click the "Accept" button presented at the bottom of this Agreement, or otherwise actively accept the terms of this Agreement during your registration process (the "Effective Date"). Your acceptance signifies that you have read, understood, and agree to be bound by the terms of this Agreement. To the extent you agree to this Agreement on behalf of another legal entity (e.g. your organization), you hereby represent that you have the authority to bind such entity to the terms of this Agreement and acknowledge that this Agreement shall be enforceable towards such entity.

 

Your registration to use the Software shall be made on the signup screen (the “Sign-up Screen”).

 

The following terms apply to the use of the Company’s Software:

 

  1. License.

    1. License. Subject to the terms and conditions of this Agreement, Company hereby grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable right and license to access and use the Software during the term specified in the Sign-up Screen (the “Term”) for the purposes prescribed in the Sign-up Screen (i.e. evaluation purposes or commercial use), strictly in accordance with the terms of this Agreement. The services or features that will be made available to you as a user of the Software shall be as set forth in the Sign-up Screen.

    2. Restrictions on Use. Except as expressly permitted by this Agreement, Customer shall not, nor shall it permit anyone else to, directly or indirectly (i) copy, reverse engineer, decompile or disassemble the Software or any part of it or otherwise attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Software; (ii) modify, convert, alter, change, manipulate, divide, part or revise the Software, or any part thereof; (iii) delete or in any manner remove or alter Company’s trade names, copyrights, trademarks, service marks, logos, domain names and other distinctive brand features and notices, fixed, incorporated, included or attached to the Software; (iv) export the Software in violation of export administration regulations of the United States or any other country; (v) use the Software for any purpose other than for the purpose prescribed in the Sign-up Screen; (vi) circumvent, disable or otherwise interfere with security-related features of the Software or features that enforce limitations on use of the Software; (vii) use the Software in any other unlawful manner or in any manner not expressly authorized under this Agreement; (viii) assign, sublicense, resell, transfer, distribute, pledge, loan, lease, market, rent or use the Software in any service bureau arrangement, facility management or third party training, or otherwise share Company’s rights under this Agreement to any third party; and (ix) transfer or otherwise make available to the Company any Personal Data (as defined below) in breach of its representations hereunder. This Agreement (and the license provided under this Section 1.2) shall automatically terminate upon the occurrence of any of the events set forth in this Section 1.2 or if the Company discovers that you are attempting to perform any of the foregoing.

    3. Warranty Disclaimer. UNLESS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. COMPANY DOES NOT WARRANT THAT THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE SOFTWARE’S OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. COMPANY ASSUMES NO LIABILITY FOR THE CONSEQUENCES OF THE CUSTOMER’S USE OF THE SOFTWARE. COMPANY DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING ANY CONTENT, REPORTS, INFORMATION, OR THE RESULTS THAT CUSTOMER OBTAINS THROUGH THE USE OF THE SOFTWARE (COLLECTIVELY, “REPORTS”), OR THAT THE REPORTS ARE ACCURATE AND/OR COMPLETE.

    4. Limitation of Liability. COMPANY, ITS LICENSORS AND AFFILIATES SHALL NOT BE LIABLE WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, TO CUSTOMER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR INDIRECT LOSS OR DAMAGES OF ANY KIND (INCLUDING FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF PROFITS, ETC.) SUFFERED BY ANY PERSON, ARISING FROM, RELATED WITH, AND/OR CONNECTED TO, ANY USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE COMPANY'S MAXIMUM LIABILITY HEREUNDER (WHETHER IN TORT, CONTRACT OR ANY OTHER FORM OF LIABILITY) FOR DAMAGES OR LOSS, HOWSOEVER ARISING OR CAUSED, WHETHER OR NOT ARISING FROM ITS NEGLIGENCE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO THE COMPANY BY THE CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. INASMUCH AS SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OR LIMITATIONS AS SET FORTH HEREIN, THE FULL EXTENT OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY.

  2. Payment. In consideration for the license and services to be rendered by the Company to the Customer during the Term, the Customer shall pay the Company the fees set out in the Sign-up Screen, in accordance with the payment terms specified therein. Upon expiration of the applicable Term, the Customer may renew its Software license for additional periods in accordance with the rates that will be specified in the then-current Sign-up Screen.

  3. Confidential Information. Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, whether written or oral, and any other information that a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party's Confidential Information from disclosure to a third party. Neither Party shall use or disclose the Confidential Information of the other Party except as expressly permitted under this Agreement or by applicable law. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party.

  4. Ownership; Customer Data. 

    1. Company owns and/or has all the rights and licenses, and shall retain all such right, title and interest, including all intellectual property rights related thereto (including all updates, upgrades, modifications, and developments thereof embodied therein), evidenced by and/or embodied in and/or attached and/or connected and/or related to the Software and any and all derivative works thereof. Any intellectual property developed in connection with this Agreement, including without limitation any test or evaluation results obtained, is and shall remain owned solely by the Company or its licensors. This Agreement does not convey to the Customer any interest in or to the Software but only, as abovementioned, a limited revocable license to use the Software during the Term for the purpose(s) prescribed in the Sign-up Screen, in accordance with the terms of this Agreement. Nothing in this Agreement constitutes a waiver of the Company’s intellectual property rights under any law. If the Customer contacts the Company with feedback data (e.g., questions, comments, suggestions or the like) regarding the Software (collectively, “Feedback”), such Feedback shall be deemed to be non-confidential, and the Company shall have a non-exclusive, royalty-free, worldwide, perpetual license to use or incorporate into the Company’s products (including, without limitation, the Software) any such Feedback. The Software may generate certain non-identifiable, aggregated and analytics information related to its operation and use which does not include any Personal Data of the Customer or of other users (the "Anonymous Data"). Such Anonymous Data may include information related to scripts, test data, and search terms. Customer acknowledge that the Company may collect, process, disclose, publish and use in any other manner such Anonymous Data in order to provide and improve the Company's products and services and for any other legitimate business purposes. The Company is and shall remain the exclusive owner of the Anonymous Data.

    2. In order to provide the Software and its functionality, the Company is required to process, access and use the data voluntarily provided by the Customer. Such Customer’s data may include personally identifiable information or other data protected under applicable privacy laws (the "Personal Data"). Therefore, Customer hereby represents and warrants that (i) it has obtained all applicable permits, authorizations and/or consents as to allow the processing of the Personal Data by the Company in accordance with this Section 4.2, (ii) it will comply with all applicable laws, rules, regulations, directives and guidelines regarding the collection, use and disclosure of Personal Data including, without limitation any obligations applicable to data controllers, (iii) it remains fully responsible and liable towards its data subject and applicable supervisory authorities.

  5. Effect of Termination.

    1. This Agreement may either (i) expire at the end of the applicable Term (unless it is renewed or extended by the Customer on the then-current Sign-up Screen), or (ii) be terminated earlier by the Company due to a breach of Section 1.2.

    2. Upon termination or expiration of this Agreement: (i) the license granted to you under this Agreement shall expire, and you shall discontinue all further use of the Software; (ii) the Company may retain any Anonymous Data, (iii) the Company shall make the Customer’s data available to the Customer for download or migration purposes during a period of 30 days (or as otherwise agreed in good faith between the Parties), and each recipient shall return all copies of the Confidential Information of the disclosing Party to the disclosing Party, or delete them at the request of the disclosing Party (unless retention is required by applicable law, and only to the minimum extent required), and (iv) any sums paid by you until the effective date of termination or expiration are non-refundable, and you shall not be relieved of your duty to discharge in full all due sums owed by you to the Company under this Agreement until the date of termination or expiration hereof, which sums shall become immediately due and payable on the date of termination or expiration the Agreement. The provisions of this Agreement that, by their nature and content, must survive the termination of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive. Termination of this Agreement shall not limit the Company from pursuing any other remedies available to it under the applicable law.

  6. Relationship of the Parties. The relationship of Company and Customer established by this Agreement is of licensor and licensee. Nothing in this Agreement shall be deem the Parties as principal and agent, employer and employee, franchisor and franchisee, partners, joint ventures, co-owners, or otherwise as participants in a joint undertaking.

  7. Assignment. This Agreement may not be assigned by Customer without the prior written consent of the Company. Any such unauthorized assignment shall be void ab initio.

  8. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Israel, without giving effect to the rules regarding conflict of law. The Parties consent to the exclusive jurisdiction of the courts of Tel-Aviv, with respect to any disputes arising out of or relating to this Agreement. Notwithstanding the foregoing, either Party may seek injunctive or other equitable relief in any jurisdiction in order to protect its intellectual property rights.

  9. Severability; No Waiver. If any provision or provisions of this Agreement are determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof will not in any way be affected or impaired thereby. No waiver, alteration or modification of the provisions of this Agreement will be valid unless made in writing.

  10. Entire Agreement. This Agreement constitutes the complete, final and exclusive statement of the agreement between Company and Customer, which supersedes all proposals, oral or written, and all other communications between the Parties relating to the subject matter hereof. This Agreement may not be assigned, sub-licensed, or otherwise transferred by Customer without Company’s prior written consent.

 

BY ACCEPTING THE TERMS OF THIS AGREEMENT, YOU ACKNOWLEDGE THAT (A) YOU HAVE READ AND REVIEWED THIS AGREEMENT IN ITS ENTIRETY, (B) YOU AGREE TO BE BOUND BY THIS AGREEMENT, (C) THE INDIVIDUAL ACCEPTING THESE TERMS HAS THE POWER, AUTHORITY AND LEGAL RIGHT TO ENTER INTO THIS AGREEMENT ON BEHALF OF HIS/HER ORGANIZATION, AND (D) AS OF THE EFFECTIVE DATE, THIS AGREEMENT CONSTITUTES BINDING AND ENFOCEABLE OBLIGATIONS ON YOUR BEHALF.