End User License Agreement
PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE INSTALLING AND\OR USING THE ClariFruit APPLICATION ("SOFTWARE"), AND INDICATE YOUR ACCEPTANCE BY CHOOSING "I ACCEPT". THE SOFTWARE IS COPYRIGHTED AND LICENSED (NOT SOLD). BY CHOOSING “I ACCEPT”, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY ALL THE TERMS OF THIS LICENSE AGREEMENT. THIS LICENSE AGREEMENT IS BETWEEN YOU AND ClariFruit LTD. ("ClariFruit") ONLY. IF YOU DO NOT AGREE TO THIS AGREEMENT DO NOT DOWNLOAD AND/OR INSTALL THE SOFTWARE, AND IF YOU HAVE ALREADY INSTALLED IT PLEASE REMOVE IT FROM YOUR DEVICE AND DO NOT USE IT IN ANY MANNER WHATSOEVER.
License Grant. Subject to the terms herein, ClariFruit hereby grants you a limited, non-exclusive, non-transferable, non sub-licensable, revocable right to install the Software on mobile device that you own or control, and use it in order to measure and track certain parameters of your agricultural products and receive certain information in aggregate or statistical form, all as further detailed in the Clarifruit’s platform can automatically identify, collect, and analyze real-time data about fresh produce's external and internal attributes. documentation available on its website (the foregoing actions enabled by means of the Software shall be herein referred to as "Service"). You shall be solely responsible to ensure that the Software is securely installed and used. The term "Software" shall include all revisions, improvements, new releases and/or updates and related documentation all to the extent provided by Clarifruit platform can automatically identify, collect, and analyze real-time data about fresh produce's external and internal attributes. under this Agreement.
Intellectual Property Rights & Restrictions. Clarifruit platform can automatically identify, collect, and analyze real-time data about fresh produce's external and internal attributes. DOES NOT AND SHALL NOT BE DEEMED TO HAVE SOLD OR TRANSFERRED TITLE IN THE SOFTWARE TO YOU. The Software and the documentation shall remain Clarifruit property. All intellectual property rights evidenced by or embodied in or related to the Software, and to any customizations, enhancements or derivatives thereof, or connected to or arising out of the Service, are and shall be owned solely by Clarifruit. Clarifruit reserves all rights not expressly granted hereunder, and nothing in this Agreement constitutes a waiver of Clarifruit Intellectual Property Rights under any law. Without limiting the generality of the foregoing, you agree and undertake not to, and not to let any third party: (i) sell, lease, sublicense or distribute the Software, or any part thereof, or otherwise transfer the Software; (ii) reverse engineer, decompile, disassemble, or otherwise reduce to human-perceivable form the Software’s source code; (iii) modify, revise, enhance, or alter the Software; (iv) copy or allow copies of the Software to be made except for backup or archival purposes and only throughout the term hereof; (v) place the Software onto a server accessible for use by any third party; (vi) represent that you possess any proprietary interest in the Software; (vii) use the Software in any illegal manner or for unlawful purposes; (viii) directly or indirectly, take any action to contest Clarifruit intellectual property rights or infringe them in any way; (ix) except as specifically permitted hereunder, use the name, trademarks, trade-names, and logos of Clarifruit.
Hardware Device. Use of the Clarifruit Service requires the use a specialized hardware ("Hardware Device"). Such Hardware Device may be purchased separately from a licensed vendor or it may be provided by Clarifruit as a reseller of such hardware. In case the Hardware Device was acquired through Clarifruit, you acknowledge and confirm that Clarifruit has provided you the Hardware Device solely as a reseller and Clarifruit makes no representation, and shall not have any responsibility or liability of any kind with respect to such Hardware Device, and Clarifruit hereby expressly disclaims any and all responsibility, liability or warranty of any kind with respect to the Hardware Device. Any terms and conditions including product warranty that are applicable to the Hardware Device and its usage shall be in accordance with the Hardware Device manufacturer's agreement and shall be governed by the relationship between you and the Hardware Devices manufacturer.
4.1. For purpose of this Agreement, the term "Content" includes, without limitation, parameters, measurements or samples derived from agricultural products, information, data, text, photos and graphics, in static or interactive feature, submitted to, provided by, or otherwise made available to Clarifruit or to you through the Service. The Service enables you to submit or add certain Content, including, without limitation certain personal information and information with regard to agricultural products (each, a "User Submission").
4.2 By submitting any User Submission on or through the Service, you (a) represent and warrant that you own or have all necessary rights and permissions to use and authorize Clarifruit to use all intellectual property rights in and to any User Submission, and to enable inclusion and use thereof in connection with the Service; (b) represent and warrant that your User Submission does not infringe or violate the rights of any third party, including, without limitation, any copyright, trademark, patent, or other intellectual property or proprietary right; (c) grant Clarifruit a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully-paid, license, to internally use, edit, modify, reproduce, prepare derivative works based upon, and otherwise internally exploit the User Submission, in connection with the Service, the Software and their operation, maintenance or improvement and/or Clarifruit business, and to the extent permitted by applicable law, you hereby waive any "moral rights" in such User Submission; (d) you acknowledge and agree that Clarifruit may, for any purpose, use, edit, modify, reproduce, prepare derivative works based upon and otherwise exploit any User Submission which is processed to aggregated or statistical form such that the ensuing data does not relate specifically to you or to your business or products ("General Data") and that Clarifruit may distribute, display, perform, or transfer any General Data to any third party, including in connection with marketing of the Service and including Clarifruit business partners.
Consideration. You shall pay Clarifruit a non-refundable fee in accordance with the relevant terms and conditions as set in the Software or as otherwise agreed between you and Clarifruit (the "Fee"). All amounts payable under this Agreement are exclusive of any taxes (including, without limitations, sales tax, VAT, and similar taxes to the extent applicable).
Your Warranties. You hereby warrant, represent and covenant that: (i) you have all legal rights and privileges required in order to enter into this Agreement and perform your obligations hereunder; and (ii) you will comply at all times during the term of this Agreement with the terms of this Agreement and with all applicable laws in your performance hereunder.
Indemnity. You shall indemnify, defend, and hold harmless Clarifruit, and the operating systems' provider (Apple, Google) and their directors, officers, and employees from and against all claims, costs, damages, losses and expenses, including reasonable attorneys’ fees and other legal expenses, arising out of or related to (i) breach of your obligations and warranties under this Agreement, or (ii) a third-party claim that your User Submissions or your use of the Service infringes any intellectual property right. Clarifruit shall provide you with a written notice of any such claim made against it and shall grant you sole control of the defense of any such claim, suit or proceeding.
Pre-Release Beta Version. You acknowledge that the Service is a prototype version and is not at the level of performance and compatibility of a final, generally available service offering. The Service thus may be substantially modified prior to commercial release. Clarifruit reserves the right, without prior notice, to discontinue or modify the Service, its price, specifications, capabilities, functions, commercial release dates, or general availability.
10.1. Disclaimer of Warranties. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT, Clarifruit PROVIDES THE SOFTWARE AND THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, ACCURACY AND NONINFRINGMENT. Clarifruit DOES NOT WARRANT THAT THE SOFTWARE OR THE SERVICE WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION. Clarifruit SHALL IN NO WAY BE LIABLE TO YOU IN THE EVENT OF SYSTEMS OR COMMUNICATIONS ERRORS, BUGS OR VIRUSES RELATING TO THE SOFTWARE OR SERVICE OR DAMAGE TO ANY DEVICE, INCLUDING THE HARDWARE DEVICE, OR YOUR ABILITY TO USE IT. Clarifruit FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE OR THE SERVICE WILL ALWAYS BE ACCESSIBLE, TIMELY, SECURE, COMPLETE OR WILL OPERATE WITHOUT LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE SERVICE OR THE SOFTWARE. YOU ACKNOWLEDGE THAT THE SERVICE REQUIRES CELLULAR AND INTERNET CONNECTION IN ORDER TO OPERATE PROPERLY. Clarifruit DOES NOT WARRANT ANY SUCH CONNECTION OR TRANSMISSION AND EXPRESSLY DISCLAIMS ALL ERRORS OR FAULTS WHICH ARISE FROM LACK OF COMMUNICATION FOR ANY REASON. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE OR THE SERVICE REMAINS WITH YOU. IT IS CLARIFIED THAT THE OPERATING SYSTEM'S PROVIDER (APPLE OR GOOGLE AS APPLICABLE) IS NOT RESPONSIBLE FOR THE SOFTWARE OR THE SERVICE AND DISCLAIMS ALL WARRANTIES OF ANY KIND.
YOU ACKNOWLEDGE AND REPRESENT THAT YOU SHALL BE SOLELY RESPONSIBLE FOR ANY USE OR RELIANCE ON ANY SERVICE'S OUTPUT INCLUDING ANY CONTENT RESULTING FROM USE OF THE SERVICE. YOU FURTHER ACKNOWLEDGE THAT THE SERVICE IS NOT MEANT AND SHALL NOT BE CONSTRUED AS PROVIDING ANY ADVICE OR RECOMMENDATION OF ANY KIND. YOU ALONE ARE SOLELY RESPONSIBLE FOR DETERMINING WHETHER ANY DATA, OR ANY OTHER PRODUCT OR SERVICE, IS APPROPRIATE OR SUITABLE FOR YOU.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Clarifruit, ITS OFFICERS, DIRECTORS OR EMPLOYEES, BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT Clarifruit HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT DEROGATING FROM THE FOREGOING, Clarifruit MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF, OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID BY YOU TO Clarifruit DURING THE SIX (6) MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES.
Third Party Software. The Software may contain software provided by third parties, and such third party’s software shall be subject to the terms set forth in the agreements pertaining to such software. In the event such agreements are not available, such third party’s software is provided on an “as is” and “as available” basis, without any warranty of any kind, and the provisions of this Agreement shall apply to all such third party software providers and third party software as if they were Clarifruit and the Service, respectively.
Term and Termination. This Agreement is valid as of the date you purchased the license and shall remain in effect until the end date as set in the Purchase Order. Without prejudice to any other rights, this Agreement and your right to use the Software and the Service automatically terminates if you fail to comply with any provision of this Agreement. Clarifruit may terminate this Agreement at any time with or without prior notice. You may terminate this license at any time by stopping your use thereof and un-installing the Software. Upon termination of this Agreement the license granted to you in this Agreement shall expire and you shall cease using the Software and remove it from your devices.
General. This Agreement constitutes the entire agreement between the parties and may not be modified except by a written agreement signed by Clarifruit. If a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of the Agreement shall continue in full force and effect. You may not assign this Agreement without Clarifruit prior written approval. Clarifruit shall be entitled to assign this Agreement at its discretion. No waiver of any breach shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. Clarifruit contact information to which you may direct questions, complaints or claims with respect to the Software is as follows: www.clarifruit.com / firstname.lastname@example.org / +972-54-5660850. This Agreement shall be governed by and construed in accordance with the laws of Israel and only the competent courts in Tel Aviv, Israel shall have jurisdiction over any dispute arising from this Agreement. Sections 2, 4.2, 7, 10-12 and 14 shall survive the termination of this Agreement.
I HAVE READ AND UNDERSTOOD THIS LICENSE AGREEMENT AND AGREE TO BE BOUND BY ALL OF THE TERMS.
ADDENDUM FOR ITUNES STORE LICENSES
Notwithstanding anything to the contrary set forth in this Agreement, if you obtained a license to the Software through the use of Apple’s iTunes Store, the following additional terms and conditions shall apply:
1. Acknowledgement. Both parties acknowledge that this Agreement is concluded between you and Clarifruit only, and not with Apple Inc. (“Apple”), and Clarifruit, not Apple, is solely responsible for the Software and the content thereof.
2. Scope of License. Subject to your compliance with the terms and conditions of this Agreement, Clarifruit grants you a non-transferable license to use the Software on any iPhone or iPod touch that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.
3. Maintenance and Support. Both parties acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Software.
4. Warranty. You agree that Clarifruit shall be solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed in this Agreement. In the event of any failure of the Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Clarifruit, to the extent applicable under this Agreement.
5. Product Claims. Both parties acknowledge that Clarifruit, not Apple, is responsible for addressing any claims made by you or any third party relating to the Software or your possession and/or use of the Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
6. Intellectual Property Rights. Both parties acknowledge that, in the event of any third party claim that the Software or your possession and use of the Software infringes that third party’s intellectual property rights, Clarifruit, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
7. Legal Compliance. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
9. Third Party Beneficiary. Both parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against you as a third party beneficiary thereof.