Terms of Service
We suggest you carefully read this document. Please completely review the information contained herein; usage of any of the services described herein constitutes your agreement and consent, allowing you to take advantage of the many benefits of online services.
This Agreement ("Agreement") governs the use of Ourcart Receipt Processing Platform services (the "Services").
Supply of Services
2.1. The supply of Services under this Agreement shall be made through OurCart’s cloud-based platform, and shall commence after integration between OurCart's systems and Client's systems has been completed. The parties shall cooperate in completing such integration as soon as practicable after the date of this Agreement.
2.2. OurCart warrants that Services will be provided in a competent and professional manner, consistent with generally accepted industry standards and consistent with the provisions herein. However, OurCart does not guarantee the provision of the Services if the Services are subject to improper use by Client or interference from external causes (including, but not limited to, services or modifications not performed by OurCart).
2.3. Client acknowledges and undertakes that Client shall be solely and fully responsible for any act or omission of Client and/or inadequacy of information of the materials provided by the Client in connection with the Services.
2.4. OurCart shall have the right, by written notice to Client effective immediately upon mailing (by fax or e- mail), to change the terms or specifications of the Services and/or to cease providing any of the Services, all due to (i) changes in the Services which are made at Client’s request or (ii) changes made by or imposed upon OurCart (for example, by any other third party) for any other reason. However, OurCart shall make its best efforts to provide Client with 7 days prior notice in any event of such change and/or cessation
2.5. Unless otherwise agreed between the parties, OurCart shall make its best efforts to post advance notice via emails at least 3 days in advance of any scheduled outage in the Services for scheduled maintenance or upgrade.
2.6. OurCart shall use its best efforts to replace the Services with new, enhanced or upgraded versions of the Services ("New Versions") as soon as such are available to OurCart. OurCart shall integrate New Versions without any additional charge, according to OurCart's sole discretion, and in accordance with this Agreement.
3. Representations and Warranties
3.1. Each party hereby represents and warrants that:
3.1.1. it has the power to execute, deliver and perform this Agreement, and this Agreement is duly authorized, and will not violate any provisions of law; and
3.1.2. to the best of its knowledge, there is no action, suit or proceeding at law or in equity now pending or threatened by or against or affecting it which would substantially impair its right to carry on its business as now conducted or adversely affect its financial condition or operations.
3.2. Client hereby represents and warrants to OurCart that it shall not use the Services in connection with any illegal or fraudulent business activities.
3.3. Client further undertakes and warrants that it shall not use, and shall not allow any use of, the Services outside any territory which may be agreed between the Parties.
3.4. OurCart represents and warrants that it has all intellectual property rights in OurCart's systems (the "System"), and that to the best of OurCart's knowledge, the System and Services does not infringe any third party copyright, trademark, trade secret and other intellectual property rights.
3.5. OurCart shall indemnify Client for any damage incurred by Client pursuant to a final judgment, by reason of a claim brought against Client insofar as such claim derives directly as a result of a third party claim that the System or Services infringes upon such third party's intellectual property rights, provided that Client: (i) gives OurCart the sole control of any such claim, suit or proceeding; (ii) notifies OurCart immediately in writing of the existence or threat of such claim, suit and proceeding; and (iii) gives OurCart all other relevant information, reasonably cooperates with OurCart, and assists OurCart in any way reasonably requested by OurCart.
4. Obligations of Client
Client undertakes to:
4.1. provide complete, accurate and timely information as required by OurCart to enter into this Agreement and/or provide the Services; and
4.2. observe all applicable laws, statutes, regulations, directions and codes, including without limitation, relevant data protection and privacy legislation.
4.3. Use the Services solely for itself (and not for any other operator and/or entity, including but not limited to, operators and/or entities affiliated to the Client), all subject to the provisions of this Agreement.
5. Intellectual Property
5.1. All copyright, trademark, trade secret and other intellectual property rights in the OurCart's systems shall remain at all times the sole and exclusive property of OurCart; Client shall have no right or interest in the OurCart's systems.
5.2. Client acknowledges and agrees that any and all intellectual property rights of all types or nature whatsoever, including, without limitation, patent, copyright, design rights, database rights, applications for any of the above, moral rights, know-how, trade secrets or any other intellectual or industrial property rights (and any licenses in connection with any of the same), whether or not registered or capable of registration, and whether subsisting in any specific country or countries or any other part of the world, in any computer programs, interfaces, platforms and links, whether in source code, object code or other form of software, which are used in order to provide the Services, shall belong exclusively to OurCart or to its licensors, as the case may be.
5.3. Client confirms and acknowledges that the Services employ OurCart’s proprietary technology and OurCart’s accumulated knowhow and experience. While the results of the Services are intended for Client’s use and analysis, Client hereby undertakes that it shall not use the data accumulated from the use of the Services to develop an alternative receipt identification process, tool or software.
5.4 Client hereby grants OurCart a royalty-free license to present Client’s logo on OurCart’s website and other promotional material or documentation. Client may revoke said license by written notice to OurCart, in which case OurCart will remove Client’s logo within 7 business days of receiving such notice.
6. Data Storage and License.
6.1. Data resulting from the provision of the Services (the "Data") will be saved at the expense and responsibility of the Client on a separate dedicated server (hereinafter: "Database Server"). The Database Server will be devoted to the storing of the Data.
6.2. Client shall be responsible for maintaining necessary approvals for keeping, storing and securing the Data, as required by law, including under the Protection of Privacy Law - 1981, the EU General Data Protection Regulation (GDPR) (EU) 2016/679 or other applicable privacy laws, and for all permissions for managing the database that contains the Data.
6.3. The Client shall be responsible for backing up the Data.
6.4. Subject to the provisions of this Agreement, the Client hereby grants to OurCart a non-exclusive, non- transferable license to use the Data, whether or not stored on the Database Server, and perform analysis and processing of such data, for the advancement and improvement of OurCart’s services, provided however that OurCart shall divulge any personally identifiable information or use the Data in a manner that competes with the Client or is otherwise knowingly harmful to the Client’s business.
7. Support and Maintenance
OurCart will provide such services and maintenance operations, including technical support, as may be agreed between the Parties in a separate agreement.
8. Indemnity and Limitation of Liability
8.1. Client shall indemnify OurCart, its assigns, agents, employees and officers (jointly and severally: “Indemnitee”) for any damage incurred by Indemnitee, by reason of a claim brought against or penalty or fine imposed on Indemnitee insofar as such claim, penalty or fine derives directly as a result of Client’s acts or omissions, breach of this Agreement, willful default or fraud by Client or its customers, assignees, agents, employees, officers or directors, provided that OurCart: (i) gives Client the sole control of any such claim, suit or proceeding; (ii) notifies Client immediately in writing of the existence or threat of such claim, suit and proceeding; and (iii) gives Client all other relevant information, reasonably cooperates with Client and assists Client, at Client’s expense, in any way reasonably requested by Client.
8.2. Client acknowledges the electronic nature of the Services to be supplied hereunder and the inherent risk that communications by electronic means may not reach their intended destination or may do so much later than intended for reasons outside OurCart’s control. Notwithstanding the foregoing, OurCart will use reasonable, recognized and industry security standards to ensure the Services are completed in a secure manner, which includes but is not limited to receiving, transmitting, and analyzing receipts.
8.3. Since OurCart does not control the reception or routing via Internet of the information provided by Client, the configuration of Client's equipment or reliability of its connection, OurCart shall not be liable for any claims, losses, damages, costs or expenses, including attorneys’ fees, caused, directly or indirectly, by any breakdown or failure of any transmission or communication system or computer facility so long as the breakdown or failure is due to technology not belonging to OurCart.
8.4. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, OURCART HEREBY SPECIFICALLY AND EXPLICITLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY TYPE OR NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION (1) OF SUITABILITY, COMPLETENESS, TIMELINESS, RELIABILITY OR ACCURACY OF ANY PRICING INFORMATION OR THE SERVICES; (2) AS TO THE AVAILABILITY OF THE ELECTRONIC INTERFACE OR THE SERVICES AVAILABLE THEREFROM; (3) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, TITLE OR NON INFRINGEMENT; OR (4) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS IN ANY SOFTWARE USED IN CONNECTION WITH THE SUPPLY OF SERVICES HEREUNDER.
CLIENT ASSUMES ALL LIABILITY FOR ITS USE OF THE SERVICES AND OURCART ASSUMES NO LIABILITY FOR CLIENT’S FAILURE TO PERFORM IN ACCORDANCE WITH THIS AGREEMENT OR ANY RESULTS CAUSED BY ACTS, OMISSIONS OR NEGLIGENCE OF CLIENT, A SUBCONTRACTOR OR AN AGENT OF CLIENT OR AN EMPLOYEE OF ANY OF THEM, NOR SHALL OURCART HAVE ANY LIABILITY FOR CLAIMS OF THIRD PARTIES DUE TO CLIENT’S FAILURE TO PERFORM IN ACCORDANCE WITH THIS AGREEMENT OR ANY RESULTS CAUSE BY ITS ACTS, OMISSIONS OR NEGLIGENCE, INCLUDING, BUT NOT LIMITED TO, CLAIMS OF CUSTOMERS OR OTHER THIRD PARTIES ARISING OUT OF OR RESULTING FROM, OR IN CONNECTION WITH, CLIENT’S PRODUCTS AND SERVICES, PROGRAMS, PROMOTIONS, ADVERTISING, INFRINGEMENT OR ANY CLAIM FOR LIBEL OR SLANDER OR FOR VIOLATION OF COPYRIGHT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHTS.
THE SOLE AND EXCLUSIVE LIABILITY UNDER THIS AGREEMENT BY EITHER PARTY OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES OR AGENTS AND THE OTHER PARTY’S SOLE REMEDY UNDER THIS AGREEMENT, EXCEPT FOR ITS FRAUDULENT BEHAVIOR OR WILLFUL MISCONDUCT OR AS SET FORTH UNDER SECTION 9 HEREOF, SHALL BE FOR DIRECT DAMAGES CAUSED AS A DIRECT RESULT OF A BREACH OF THIS AGREEMENT AND WILL NOT EXCEED, IN ANY EVENT, AGGREGATELY FOR THE DURATION OF THIS AGREEMENT, THE FEES PAYABLE HEREUNDER FOR THE SIX MONTH PERIOD PRECEDING THE BREACH.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE IN CONTRACT, TORT (INCLUDING FOR NEGLIGENCE) OR UNDER ANY OTHER LEGAL THEORY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGE OR LOSS OF ANY KIND, INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS, PROFITS, REVENUE, CONTRACTS OR ANTICIPATED SAVINGS, EVEN IF SUCH DAMAGES OR LOSSES ARE FORESEEABLE OR IF THE PARTY HAS BEEN ADVISED OF THEIR POSSIBILITY.
9. Term and Termination
9.1. This Agreement shall come into force upon the date hereof and shall remain in full force and effect for a period of 12 months thereafter (the "Initial Term"). Following the Initial Term this Agreement shall automatically renew for additional periods of 12 months each.
9.2. Without derogating from the above, any party to this Agreement may terminate this Agreement at the end of the Initial Term and at the end of each year of its term thereafter, by thirty (30) days prior written notice to the other party. Without derogating from the aforesaid, OurCart may terminate this Agreement, by written notice to Client, effective immediately upon mailing (by fax and e-mail), at any time, should the Client materially breach this Agreement. It is hereby clarified that any delay by Client in payment of Fees pursuant to this Agreement of no longer than 7 days shall not be considered material breach of this Agreement provided Client remedied such failure within said 7 days of delay.
9.3. Upon any termination of this Agreement, all provisions regarding indemnification, warranty, liability and limits thereon, and confidentiality and/or protection of proprietary rights and trade secrets, and any provisions which expressly or by their nature are required to survive such termination in order to achieve their purpose, shall so survive until it shall no longer be necessary for them to survive in order to achieve their purpose. Termination of this Agreement shall not relieve Client of its obligation to pay Fees accrued or owing, nor affect any legal rights or obligations of either party which may have arisen under this Agreement prior to or at the date of termination.
9.4. It is hereby clarified that if Client ceases using the Services and/or wishes to terminate the Agreement prior to termination of the term of this Agreement other than pursuant to the provisions of this Agreement, Client shall be liable for all fees and other payments charged upon Client under this Agreement until the termination of the term of this Agreement. In addition, It is hereby clarified that in the event that this Agreement is terminated, for any reason whatsoever (except for termination for material breach), before its term as described in Section 9.1 hereinabove, then Client shall be liable for all fees and other payments charged upon Client under this Agreement until the end of such term.
Each party undertakes to the other to treat as confidential and not to use or exploit any information supplied or made available by the other party under this Agreement which is designated as confidential by it or which is by its nature clearly confidential (“Confidential Information”) provided that this section shall not extend to any information which was rightfully in the possession of the other party prior to the commencement of the Services or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause). Neither party shall divulge any Confidential Information to any person except to their own employees, sub-contractors or agents and then only to those employees, sub-contractors or agents who need to know the same and who are bound to such party by similar confidentiality obligations.
Without derogating from the generality of the above, the parties shall keep in strict confidence all details of this Agreement, including but not limited to business details such as Fees etc.
11. Personal Data Privacy Obligations
11.1. OurCart has no intention to use, receive, collect, process or store customers’ end data; provided however, that OurCart may access customer data in connection with performing the Services. OurCart may have access to end customers’ data which may include Personal Data as defined by the EU General Data Protection Regulation (GDPR) (EU) 2016/679 or any other privacy laws.
11.3. To the extent that Client makes available to Ourcart, or Ourcart otherwise accesses, any information relating to an identified or identifiable natural person (“Personal Data”) relating to Client's employees, customers, end users or other individuals in connection with this Agreement (collectively, “Client's Personal Data”), Ourcart represents and warrants that: (i) Ourcart will not disclose or otherwise process Client’s Personal Data except upon Client’s instructions in writing; and (ii) Ourcart will notify Client in writing and obtain Client’s consent before sharing any of Client’s Personal Data with any government authorities or other third parties.
11.4. Ourcart shall notify Client immediately in writing in the event that: (i) any Client’s Personal Data is disclosed by Ourcart (including its Affiliates, agents, subcontractors, independent contractors, or consultants), in violation of this Agreement or applicable laws or legislation pertaining to privacy or data security, (ii) Ourcart (including its Affiliates, agents, subcontractors, independent contractors, or consultants) discovers, is notified of, or suspects that unauthorized access, acquisition, disclosure or use of Client’s Personal Data may have occurred.
11.5. Notwithstanding the foregoing, Ourcart shall be entitled and permitted to use data and information obtained during provision of the Services, including Client’s Personal Data, for internal purposes and for improvement and further development of its services and products, or provide it to third parties, on an aggregate and anonymous basis, for market research purposes, provided that such
use does not involve disclosure of Client’s Personal Data to any third party in violation of Section 11.1 above.
12.1. Client acknowledges that OurCart is an independent contractor and not an employee or an agent of the Client.
12.2. Client shall not bind or attempt to bind OurCart, or represent that OurCart is bound, to any agreement, commitment or understanding without OurCart’s express written consent given in advance, and any attempt to do so shall be null and void.
12.3. The parties’ relationship to each other in all matters relating to the performance of this Agreement is that of independent entities. Nothing contained herein will place the parties in the relationship of partners, participants in a joint venture, contractor-subcontractor, or employer-employee and, except as set forth herein, neither party will have any right to obligate or bind the other in any manner whatsoever nor represent to a third party that it has any right to enter in to any binding obligation on the other’s behalf.
13. Transfer of Rights
Without derogating from any right or obligation of any party to this Agreement, OurCart has the right to transfer its rights and obligations under this Agreement so long as the party receiving the rights and obligations agrees in writing to be bound by the terms and conditions of this Agreement. Any assignment or transfer of this Agreement made in contravention of the terms hereof shall be null and void.
14. Third Party Services
OurCart reserves the right to use third party service providers that will assist OurCart to provide the Services to Client. OurCart agrees to notify Client of such third parties.
15. Miscellaneous Provisions
15.1. If performance by OurCart of any service or obligation under this Agreement is prevented, restricted, delayed or interfered with by reason of, inter alia, labor disputes, strikes, acts of God, fire, floods, lightning, earthquakes, severe weather, utility or communication failures, failures of any relevant bank or network, computer associated outages or delay in receiving electronic data, war, civil commotion, or any law, order or regulation, etc. having legal effect, then OurCart shall be excused from its performance hereunder to the extent of the prevention, restriction, delay or interference.
15.2. The parties shall irrevocably submit to the exclusive jurisdiction of the Courts of Tel-Aviv Yaffo, Israel, for the purposes of hearing and determining any dispute arising out of this Agreement.
15.3. This Agreement and all matters arising from it and any dispute resolutions referred to above shall be governed by and construed in accordance with the laws of the state of Israel notwithstanding the conflict of law provisions and other mandatory legal provisions.