MATDESPATCH SOFTWARE TERMS OF SERVICE
Updated as of July 1st, 2017
THE TERMS AND CONDITIONS CONTAINED IN THESE TERMS OF SERVICE (THESE “TERMS”) GOVERN YOUR PURCHASE AND USE OF THE SERVICES (AS DEFINED BELOW) PURCHASED BY YOU OR OTHERWISE MADE AVAILABLE FOR YOUR USE BY MATDESPATCH DELIVERY TECHNOLOGIES LTD. AND ITS AFFILIATES (COLLECTIVELY, “MATDESPATCH”). PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SERVICES. BY CLICKING ON THE “ACCEPT” BUTTON AND/OR SUBSCRIBING FOR OR USING THE SERVICES, WHETHER FOR A FEE OR UNDER A FREE TRIAL, YOU ARE IRREVOCABLY CONSENTING TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, REFRAIN FROM USING THE SERVICES.
YOUR CONSENT TO BE BOUND BY THESE TERMS IS BOTH ON YOUR OWN BEHALF AND ON BEHALF OF ANY CORPORATE ENTITY THAT EMPLOYS YOU OR WHICH YOU REPRESENT, AND THE TERM “YOU” AS USED HEREIN WILL BE DEEMED TO REFER TO BOTH YOU AND YOUR EMPLOYER, JOINTLY AND SEVERALLY. IF YOU ARE AN EMPLOYEE, CONTRACTOR OR OTHERWISE USING OR SUBSCRIBING TO THE SERVICES BY OR ON BEHALF OF A CORPORATE ENTITY, ORGANIZATION OR ANY OTHER THIRD PARTY ENTITY, YOU REPRESENT AND WARRANT TO MATDESPATCH THAT: (A) YOU ARE OF THE AGE OF MAJORITY IN YOUR JURISDICTION; (B) YOU HAVE ALL REQUISITE CAPACITY, RIGHT, POWER AND AUTHORITY TO ACCEPT THIS LICENSE ON BEHALF OF SUCH ENTITY; AND (C) SUCH ENTITY SHALL BE IRREVOCABLY BOUND BY AND SHALL COMPLY WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. Use of Services. Subject to payment of any applicable fees and compliance with these Terms, MATDESPATCH agrees to make available to you, your End Users and Your Customers (as described below) all or some of the services offered by the websites and mobile applications offered by MATDESPATCH and its affiliates, to which you subscribed (the “Services”), during the term of these Terms.
2. Other Rights and Limitations. You may not, and may not permit or aid others to, translate, reverse engineer, decompile, disassemble, update, modify, reproduce, duplicate, copy, distribute or otherwise disseminate all or any part of the software underlying the Services (the “Software”), or extract or attempt to extract source code from the object code of the Software. You may not make any commercial use of the Services or the Software, whether or not for consideration, other than for your own internal business purposes.
3. Administrator Account. When you subscribe to the Services you will be required to create one administrator account that provides certain administrative functions made available by the Services. You may create additional administrator accounts, subject to payment of any applicable fees (the “Administrator Account”). The Administrator Account provides the functionality offered by the Services to track your mobile workforce and certain other administrative functions. When you create an Administrator Account you will be required to insert certain details such as your email address, user name, password, telephone number, home address and office address. Each such account is personal and is not transferable. By creating an account, you represent and warrant to MATDESPATCH that you have provided accurate, complete and updated account information. Failure to do so shall constitute a breach of these Terms which may result, inter alia, in immediate termination of these Terms and the Services. You are responsible for maintaining the confidentiality of your account, and user name and password, and you agree to accept responsibility for all activities that occur under your account.
4. Superuser Account. If subscribed for, and subject to payment of any applicable fee, you may create an additional account that provides certain administrative functions with respect to more than one Administrator Account (the “Superuser Account”). Such Superuser Account provides the functionality offered by the Services to track mobile workforce under more than one Administrator Account and certain other administrative functions. When you create a Superuser Account you will be required to insert certain details such as your email address, user name, password, telephone number, home address and office address. Each Superuser Account is personal and is not transferable. By creating a Superuser Account, you represent and warrant to MATDESPATCH that you have provided accurate, complete and updated account information. Failure to do so shall constitute a breach of these Terms which may result, inter alia, in immediate termination of these Terms and the Services. You are responsible for maintaining the confidentiality of your Superuser Account and of any Administrator Account accessible via your Superuser Account, and you agree to accept responsibility for all activities that occur under your Superuser Account.
5. End Users. Subject to payment of any applicable fees, the Services enable you to add members of your mobile workforce to the Services (each, an “End User”). When adding an End User to the Services, you must provide his or her telephone number, following which a link will be sent to such End User by SMS or other communication means chosen by MATDESPATCH through which the End User will be able to download the MATDESPATCH mobile application to his or her mobile device. You represent and warrant to MATDESPATCH that you have received all consents required under applicable law from your End Users for MATDESPATCH to send an SMS as aforesaid to your End Users. Installation of the MATDESPATCH mobile application on an End User’s mobile device is subject to the End User agreeing to comply with the terms and conditions and/or end-user agreement embedded in the MATDESPATCH application and permitting MATDESPATCH access to the location functionality of the End User’s mobile device. You will be fully responsible for compliance by your End Users with such terms and conditions and/or end-user agreement. MATDESPATCH will have access to information regarding the End Users’ location whenever the MATDESPATCH application is running on their respective mobile device and may store such information or a portion thereof. Each End User is responsible for the availability and cost of an internet connection for his or her mobile device that he or she uses to access the Services. The Services will not be available for or in respect of an End User whose mobile device is not connected to the internet for whatever reason.
6. Your Customers. Subject to payment of any applicable fees, the Services may enable you to add your customers to the Services (“Your Customers”). When adding one of Your Customers to the Services, you must provide his or her telephone number, following which a link will be sent to Your Customer by SMS or other communication means chosen by MATDESPATCH through which Your Customer will be able to download a MATDESPATCH mobile application to his or her mobile device and/or will be provided with a link to a webpage that will enable Your Customer to track the arrival of your personnel to Your Customer’s location. You represent and warrant to MATDESPATCH that you have received all consents required under applicable law from Your Customers for MATDESPATCH to send an SMS as aforesaid to Your Customers. Installation of the MATDESPATCH mobile application on a mobile device by Your Customer is subject to Your Customer agreeing to comply with the terms and conditions and/or end-user agreement embedded in such application, which shall be provided by you and shall be reasonably acceptable to MATDESPATCH, and permitting MATDESPATCH access to the location functionality of Your Customer’s mobile device. You will be fully responsible for compliance by Your Customers with such terms and conditions and/or end-user agreement. MATDESPATCH will have access to information regarding Your Customers’ location whenever the MATDESPATCH application is running on their respective mobile device or through a MATDESPATCH webpage and may store such information or a portion thereof. Each of Your Customers is responsible for the availability and cost of an internet connection for his or her mobile device that he or she uses to access the Services. The Services will not be available for or in respect of Your Customers whose mobile device is not connected to the internet for whatever reason.
7. Your Services. In the event that the Services allow for you to offer any products or services through the Services (“Your Services”), you shall be solely and exclusively liable for the performance of Your Services and MATDESPATCH will have no liability or obligations of any nature towards you, Your Customers or to any other person or entity with respect to Your Services. You must include a provision in your agreements with Your Customers to that effect, which shall be reasonably acceptable to MATDESPATCH.
8. Support. By purchasing a subscription to the Services, you will be entitled to the standard support offered by MATDESPATCH. You may also be entitled to purchase an upgraded support package, if offered by MATDESPATCH. MATDESPATCH will strive to make the Services available 24 hours a day, 7 days a week, other than downtime for scheduled maintenance or critical bug fixes. MATDESPATCH will strive to give you advance notice of any impending downtime 48 hours in advance or, if not possible, as much advance notice as possible, and will strive to perform scheduled maintenance during non-peak hours based on US Eastern Coast time. MATDESPATCH cannot and will not be responsible or liable in any manner for any downtime or disruptions or difficulties in accessing the Services that are caused or initiated by its hosting provider or by any other third party, including internet service providers, internet network providers, cellular networks or GPS networks. MATDESPATCH’s support will be provided to you only and not to your End Users or Your Customers. You are responsible for providing support to your End Users and Your Customers. MATDESPATCH’s support does not relate to any of Your Services.
9. Orders and Fees. You may purchase subscriptions to Services and support by submitting an order via the MATDESPATCH website. All orders are subject to acceptance by MATDESPATCH. The applicable fees for Services and support shall be as stipulated in the price list published by MATDESPATCH on its website from time to time. MATDESPATCH reserves the right to amend the price list from time to time in its sole discretion, in which case any further purchase of additional Services or support, adding End Users or renewal of Services or support shall be subject to the price list in effect at the time of additional purchase or renewal.
10. Third Party Fees. MATDESPATCH’s prices and fees do not include payments to providers of third party services that are or may be integrated into the Services, such as SMS service providers and credit card payment vendors (“Third Party Fees”). You will be solely responsible for payment of all Third Party Fees. In the event that MATDESPATCH pays any Third Party Fees on your behalf, you will promptly reimburse MATDESPATCH in full within 14 days of MATDESPATCH providing you with reasonable proof of payment.
11. Taxes. All payments under these Terms are of net income. You shall bear all value added, state, local, withholding, and other taxes or other charges applicable to the Services and support (but not any taxes based upon MATDESPATCH’s gross revenues or net income such as corporate income taxes). You will pay any such taxes or charges no later than within thirty (30) days after your receipt of proper bills or statements from MATDESPATCH or the taxing authorities.
12. Invoicing and Payment. When registering for the Services, you will provide MATDESPATCH with valid and updated credit card information. By providing such information and using the Services, you authorize MATDESPATCH to charge such credit card for all Services and support purchased by you from time to time including all automatic renewal periods. Such charges shall be made for each period in advance and MATDESPATCH will provide you with an invoice and payment confirmation by email to the email address provided by you when registering for the Services or any updated email address provided by you in your account. You are responsible for providing complete and accurate billing and contact information to MATDESPATCH and notifying MATDESPATCH in writing of any changes to such information. If any charge is not processed or is rejected, MATDESPATCH may immediately discontinue your, your End Users’ and Your Customers’ access to the Services. It is agreed that all past due amounts under these Terms shall bear interest at the maximum rate permitted by law, beginning with the date on which the applicable amount became due. No refunds will be provided unless required under applicable law or explicitly set forth in these Terms.
13. Confidential Information. You shall not disclose to third parties nor use for any purpose other than for the proper use of the Services any Confidential Information received from MATDESPATCH in whatever form under these Terms or in connection with the Services without the prior written permission of MATDESPATCH. “Confidential Information” shall mean all data and information, not made available to the general public, oral or written, that relates to MATDESPATCH’s past, present, or future research, development or business activities, information relating to services, developments, inventions, processes, plans, financial information, customer and supplier lists, forecasts, and projections. You shall limit access to Confidential Information to those of your personnel for whom such access is reasonably necessary for the proper use of the Services under these Terms. Such personnel shall be bound by written confidentiality obligations not less restrictive than those provided for herein. You shall be responsible for any breach of these Terms by any of your personnel. You shall protect the Confidential Information with the same degree of care, but no less than a reasonable degree of care, to prevent unauthorized disclosure or use of Confidential Information, as you exercise in protecting your own proprietary information. The aforementioned limitations shall not apply to Confidential Information which the you can demonstrate: (i) was in your possession prior to disclosure hereunder provided that, immediately upon disclosure, you have brought this fact to the attention of MATDESPATCH; or (ii) was in the public domain at the time of disclosure or later became part of the public domain without breach of the confidentiality obligations herein contained; or (iii) was disclosed by a third party without breach of any obligation of confidentiality; or (iv) is disclosed pursuant to administrative or judicial action, provided that you shall use your best efforts to maintain the confidentiality of the Confidential Information. If only a portion of the Confidential Information falls under any of the above alternatives, then only that portion of the Confidential Information shall be excluded from the use and disclosure restrictions of these Terms.
14. Proprietary Rights. You acknowledge and agree that the Services and the Software are proprietary products of MATDESPATCH and its licensors, protected under patents, copyright laws and international treaties. You further acknowledge and agree that all right, title and interest in and to the Services and the Software, including associated intellectual property rights and all improvements, modifications, revisions, derivative works, NRE, customization and integration work product, customer feedback, suggestions and white-label branded applications, are and shall remain the sole and exclusive property of MATDESPATCH and its licensors. These Terms and the rights granted hereunder do not convey to you any interest in or to the Software. You shall not remove or alter any copyright notice, trademark or other proprietary or restrictive notice or legend affixed to, embedded, contained or included in the Software or Services or any material provided by MATDESPATCH. In the event that you have requested from MATDESPATCH, and MATDESPATCH has agreed to make available to you, a white-label branded application for Your Customers and/or End Users with your branding, you hereby grant to MATDESPATCH a perpetual, worldwide, royalty-free license to use your trademarks, trade dress, logos, display, etc. (“Your Trademarks”) for use and display in connection with such white-label branded application.
15. Modification of Services. MATDESPATCH may add features or functionality or improve or change or modify the Services at any time at its sole discretion. MATDESPATCH will not intentionally remove material features or functionality, other than beta or test features or functionality, during a term for which you have paid for Services that include such features or functionality.
17. Data Security. MATDESPATCH will maintain security procedures and practices to store in a secure fashion and protect all personally identifiable information regarding you and/or End Users and/or Your Customers (“PII”) that is collected by MATDESPATCH and stored in a database owned or controlled by MATDESPATCH (the “Database”), against accidental or unlawful destruction or loss, unauthorized disclosure or access. Such security procedures and practices shall be implemented in accordance with all applicable data protection laws, shall be appropriate to the nature of the information collected and shall be aligned with industry standard practices for the management, transport, and storage of PII. Without limiting the foregoing, MATDESPATCH will ensure that the following systems/procedures are in place: (a) the Database will be located in a secure data storage facility, with key code or alternate user access controls; (b) the Database shall be protected by an effective network security, to control both inbound and outbound data transport, including proper monitoring of MATDESPATCH network components to detect unauthorized access; and (c) all PII transmitted to or from the Database will be transmitted using industry standard cryptography and security protocols (for example, SSL/TLS, IPSEC, SSH, etc.) to safeguard data in transit. MATDESPATCH shall provide you with written notice upon discovery or notification of any actual or suspected unauthorized use of or access to you and/or End Users’ and/or Your Customers’ PII contained in the Database (each, a “Security Breach”) as promptly as practicable and in any event within seventy-two (72) hours (or earlier if required by applicable law) from the time such Security Breach becomes known to MATDESPATCH, and shall investigate and take all reasonable steps to identify, prevent and mitigate the effects of any Security Breach. MATDESPATCH shall as promptly as reasonable: (a) provide to you a description of the incident involving a Security Breach, including identifying the portions of your, End Users’ or Your Customers’ PII accessed and the identity of any effected individuals in the Database; and (b) conduct any reasonable recovery necessary to remediate the impact of the Security Breach.
18. Term and Termination. These Terms are effective upon your clicking the “ACCEPT” button, subscribing to the Services and/or using the Services, and shall continue until terminated. MATDESPATCH may terminate these Terms with immediate effect at any time upon the giving of written notice in case of any breach by you of these Terms or any other agreement between MATDESPATCH and you or your employees or users that has not been cured within 15 days following a written notice thereof from MATDESPATCH. You may terminate these Terms upon the giving of written notice at any time that is within 15 days of MATDESPATCH’s failure to remedy a confirmed Warranty breach within the remedy period stipulated in Section 21 below. In addition, MATDESPATCH may terminate these Terms or any part of the Services or support at the end of the period for which you last paid subscription fees for the applicable Services or support. Upon termination of these Terms for any reason, you, your End Users and Your Customers will no longer have any rights to use the Services and MATDESPATCH will discontinue all access. All provisions hereof that by their nature should survive termination of these Terms shall survive termination of these Terms.
19. Advertisements. MATDESPATCH may integrate commercials and advertisements, in the Services. All the information contained in such commercials and advertisements belong solely to MATDESPATCH or its advertisers and MATDESPATCH makes no warranties or representations as to such advertisements, whether or not MATDESPATCH has control over such advertisements.
20. Use Restrictions. The following restrictions apply to your use of the Services. Failure to comply with such restrictions will constitute a breach of these Terms: (a) you may not create a browser, frame, border environment or GUI around the Services application or website; (b) you may not actually or seek to interfere with or disrupt the operation of the Services; (c) you may not actually or seek to interfere with or violate other users’ rights to privacy and other rights, or harvest or collect data and information about users without their express consent, whether manually or with the use of any robot, spider, crawler, site search or retrieval application, or other automatic device or process to access the Services applications, websites, servers or databases and/or retrieve index and/or data-mine information; (d) you may not actually or seek to impersonate any person or entity or provide false or misleading personal information; (e) you may not transmit or otherwise make available through or in connection with the Services any virus, “worm”, “Trojan Horse”, “time bomb”, “web bug”, spyware, or any other computer code, file, application or program that is malicious by nature or defective, and may, or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; (f) you may not use the Services for any illegal, unlawful or unauthorized purposes; and (g) you may not access any Service in order to build a competitive product or service.
21. Limited Warranty. If you are paying a fee to use the Services, MATDESPATCH warrants that: (a) the Services will perform in accordance with the Services documentation made available to you from time to time in all material respects, unless the failure was caused by any of the circumstances listed in Section 8 above or Section 35 below or by Your Services or the combination of the Services with Your Services; and (b) support services will be provided with the same level of service as MATDESPATCH generally provides to its other customers (the “Warranty”). In the event of a breach of the Warranty that has not been remedied by MATDESPATCH within 30 days of your written notice to MATDESPATCH of a breach of the Warranty and MATDESPATCH’s written confirmation that a Warranty breach has occurred, your sole remedy shall be to terminate these Terms in accordance with Section 18 above and to receive a refund of amounts paid by you for use of the Services for the period following the effective date of termination, less a reasonable processing fee.
22. Warranty Disclaimer. OTHER THAN THE EXPRESS WARRANTIES SET FORTH IN SECTION 21 ABOVE, THE SERVICES, SOFTWARE AND SUPPORT ARE MADE AVAILABLE “AS IS” AND WITHOUT ANY OTHER WARRANTY OR CONDITION WHATSOEVER, EXPRESS OR IMPLIED. MATDESPATCH DOES NOT WARRANT THAT THE SERVICES, SOFTWARE AND SUPPORT SHALL BE ERROR-FREE, THAT THEY SHALL OPERATE UNINTERRUPTED OR THAT THEY SHALL MEET YOUR REQUIREMENTS OR ANY PERFORMANCE CRITERIA. MOREOVER MATDESPATCH DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY AND NON-INFRINGEMENT. Some States do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply.
23. Indemnification by MATDESPATCH. MATDESPATCH agrees to indemnify you from all direct costs, settlements, or judgments finally awarded against you resulting from any infringement by the Software or Services of third parties’ intellectual property rights or from a Security Breach; provided, however, that (1) you shall have given MATDESPATCH a prompt written notice of the relevant claim, suit, demand, notice or action alleging the grounds allegedly giving rise to such indemnification (the “Claim”); (2) you shall reasonably cooperate with MATDESPATCH in the defense and settlement thereof; (3) at MATDESPATCH’s election, MATDESPATCH shall have sole control of the defense, settlement and compromise of such Claim, and (4) you may not settle or agree to any compromise regarding the Claim without MATDESPATCH’s prior written consent. The foregoing shall not apply to the extent that the Claim arises: (i) from the use of the Services or Software in a manner for which they were not intended, or (ii) from the use of the Services or Software not in compliance with the documentation or instructions provided by MATDESPATCH, (iii) where the infringement results from the alteration or modification of the Services Software, or the combination of the Services or Software with Your Services or with a third party’s systems, services or applications, where the unaltered or unmodified Services or Software, or the Services or Software standing alone, as applicable, would not have infringed upon third party’s rights, (iv) from a failure of your End Users or Your Customers to download and install any software update distributed by MATDESPATCH for their mobile device applications, or (v) from any action, inaction or omission of any third party or any other event or circumstance outside of MATDESPATCH’s reasonable control. In the event that an injunction is obtained against the your and/or an End-User’s and/or Your Customer’s use of the Services arising from a suit, claim or proceeding, or if MATDESPATCH anticipates that there is a likelihood of a claim of infringement, or determines that the following steps will assist in defending or settling a claim, suit, demand or action, MATDESPATCH may, at its option and expense, either (a) procure for you, the End Users and Your Customers the right to continue using the Services; or (b) replace or modify the Services so that use thereof no longer infringes upon such intellectual property rights, so long as the utility or performance of the Services is not materially adversely affected by such replacement or modification; or (c) where (a) or (b) are not practicable, to terminate these Terms. If MATDESPATCH chooses to replace or modify the Services in accordance with subsection (b) above, you will and will cause your End Users and Your Customers to update all applicable MATDESPATCH mobile device applications. This Section 23 sets forth your and your End Users’ and Your Customers’ exclusive and entire remedy against MATDESPATCH with respect to any action, suit, demand or claim for an alleged infringement of intellectual property rights by the Services or Software or any component thereof.
24. Indemnification by You. Without derogating from any applicable law, you agree to indemnify and hold harmless MATDESPATCH and its employees, officers, directors and agents, from and against all losses, claims, expenses, costs, liabilities and demands resulting from or in connection with (a) your and/or your End Users’ and/or Your Customers’ use or alleged use of the Services that is not in accordance with these Terms, any applicable agreements with your End Users and Your Customers, and MATDESPATCH’s documentation and instructions, (b) breach or alleged breach by you and/or your End Users and/or Your Customers of any law, rule or regulation, (c) Your Services, and (d) Your Trademarks.
25. Limitation of Liability. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, MATDESPATCH’S CUMULATIVE LIABILITY TO YOU, YOUR END USERS, YOUR CUSTOMERS AND ANY THIRD PARTY FOR ANY LOSS, COST OR DAMAGE RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THESE TERMS AND/OR USE OF THE SERVICES AND/OR SOFTWARE AND/OR MOBILE APPLICATIONS AND/OR SUPPORT SHALL NOT EXCEED THE TOTAL FEES ACTUALLY PAID BY YOU HEREUNDER DURING THE ONE-YEAR PERIOD PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE ALLEGED LIABILITY. IN NO EVENT SHALL MATDESPATCH BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOST DATA OR LOST PROFITS, EVEN IF MATDESPATCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some States may not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply.
26. Third Party Products and Services. The Services may incorporate or rely on third party products and/or services, including without limitation, maps, SMS and other messaging services, information regarding traffic and road conditions, driving directions, and the GPS and internet functionality in End Users’ and Your Customers’ mobile devices. MATDESPATCH makes no representations regarding, and disclaims any responsibility or liability for, the accuracy, reliability or availability of such third party products and/or services and any information provided by the Services in reliance thereon.
27. Critical Conditions. THE SOFTWARE AND SERVICES ARE NOT INTENDED OR LICENSED FOR AND MATDESPATCH SPECIFICALLY DISCLAIMS LIABILITY FOR USE OF THIS SOFTWARE OR SERVICES IN CRITICAL CONTROL, ON-LINE CONTROL EQUIPMENT, HAZARDOUS, HIGH RISK OR FAIL-SAFE ACTIVITY SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, EMERGENCY MEDICAL RESPONDERS, AIRCRAFT NAVIGATION, COMMUNICATION, OR CONTROL SYSTEMS, WEAPONS SYSTEMS, OR OTHER USES IN WHICH FAILURE OF THE SOFTWARE OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
28. Allocation of Risks. The limited warranties, warranty disclaimers, exclusive remedies and limited liability provisions set forth herein are fundamental elements of these Terms and the Services provided hereunder, and allocate risk under these Terms between you and MATDESPATCH in light of the fees charged by MATDESPATCH for provision of the Services and support.
29. Third Party Software. The Services and Software may use or include third party software, files and components that are subject to open source and/or third party license terms (“Third Party Components”). Your right to use such Third Party Components as part of, or in connection with, the Services and Software is subject to any applicable acknowledgements and license terms accompanying such Third Party Components, contained therein or related thereto. If there is a conflict between the licensing terms of such Third Party Components and these Terms, the licensing terms of the Third Party Components shall prevail in connection with the related Third Party Components. Such Third Party Components are provided on an “AS IS” basis without any warranty of any kind and shall be subject to any and all limitations and conditions required by such third parties. Under no circumstances shall the Services or Software or any portion thereof (except for the Third Party Components contained therein) be deemed to be “open source” or “publicly available” software. Certain Third Party Components’ licensing obligations and/or notices are provided for your informational purposes in connection with the Services at the following URL: __________________.
30. Governing Law and Jurisdiction. These Terms shall be construed and governed in accordance with the laws of the Malaysia, regardless of its conflict of laws rules, and the competent courts of Tel Aviv-Jaffa shall have sole and exclusive jurisdiction over any dispute under these Terms or otherwise related to the Services.
31. Notices. All notices to be sent to you by MATDESPATCH under these Terms or for any purpose relating to these Terms will be sent to the email address you provided when subscribing to the Services, and all notices delivered as aforesaid will be deemed received one day after they are sent.
32. Assignment. You may not assign, sublicense or make available to any other person or entity, these Terms, or any rights or obligation hereunder, or the Services or any part thereof, in whole or in part without the prior written consent of MATDESPATCH, and any attempt by you to so assign, sublicense or make available shall be deemed null and void. MATDESPATCH may freely transfer and assign its rights and obligations hereunder to an affiliate or to a third party that acquires all or substantially all of the assets subject to these Terms or securities of MATDESPATCH or any entity into which MATDESPATCH shall merge or any affiliate thereof.
33. Modification or Amendment. MATDESPATCH may modify or amend these Terms and/or the Services at any time, with or without notice to you by posting a copy of the modified or amended Terms on its website. You will be deemed to have agreed to any such modification or amendment by your decision to continue using the Services or purchase of any Services or support following the date in which the modified or amended Terms are posted to MATDESPATCH’s website.
34. Export Control. The Software and Services and all related technical information, documents and materials are subject to export controls under Malaysia law. You will (i) comply strictly with all legal requirements established under these controls, and (ii) cooperate fully with MATDESPATCH in any official or unofficial audit or inspection that relates to these controls, and (iii) not export or re-export the Software or Services without the appropriate Malaysia and/or other applicable governmental licenses or approvals.
35. Force Majeure. Neither party shall be liable for any costs or damages due to nonperformance under these Terms, arising out of any cause or event not within the reasonable control of such party and without its fault or negligence, such as an act of God, act of war, labor disputes, reason of fire, floods, failure of the internet or any network used to access or provide the Services, failure of service attack, or inability to obtain necessary materials or services from suppliers if no equipment sources for such suppliers or services are readily available.