ACUMEN LABS LTD. (“ACUMEN”) WELCOMES YOU (“CUSTOMER”)TO OUR PLATFORM available at www.acumen.io (the "Site"). THE FOLLOWING TERMS AND CONDITIONS AND ANY ORDER FORM ISSUED FROM TIME TO TIME BETWEEN THE PARTIES(THE "ORDER FORM"), TO WHICH THESE TERMS ARE INCORPORATED BY REFERENCE (COLLECTIVELY, THE "TERMS") STIPULATE THE TERMS AND CONDITIONS OF YOUR USE OF THE PLATFORM. THE PLATFORM IS PROVIDED SOLELY FOR YOUR BUSINESS' OWN USE. BY ACCESSING OR USING OUR PLATFORM, YOU AGREE TO THESE TERMS. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR ANOTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY ANDITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERM "YOU" OR"CUSTOMER" WILL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE LEGAL ENTITY THAT YOU REPRESENT DOES NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THESE TERMS OR USE THE PLATFORM.
1.1. Customer must register and establish an account on the Service in order to use the Service (the "Account"). By registering an Account, Customer represents that it is entitled to disclose the information provided in such registration, without breach by you of any obligations or violation of any rights of third parties. Subject to the terms and conditions of these Terms, Acumen shall provide Customer with services as specified in the Order Form ("Services") through its proprietary technology as hosted on a third party cloud service (the "Platform").
1.2. Only you and your authorized Users may access and use the Products. Some Products may allow you to designate different types of Users, in which case pricing and functionality may vary according to the type of User ("Users"). All use of the Products by you and your Users must be within the authorized scope of use set forth in these Terms and the applicable Order Form, which may include limits on the number and or types of Users or licenses, limits on storage capacity or the amount of authorized Users who are being tracked via the SCM Data (as defined below) as a feature of the Products (each, a "Contributors"), or other restrictions on the scope of use. You are responsible for all Users’ compliance with these Terms and any applicable Order Form. You acknowledge that the Services are on-line, subscription-based products and that Acumen may make changes to the Services from time to time, provided that such changes do not materially diminish the functionality of the Services.
1.3. You must not misuse the Services. Except as otherwise expressly permitted in these Terms, you may not, and you shall be responsible for ensuring that your Users do not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Products to a third party, (b) use the Products for the benefit of any third party, (c) incorporate any Products into a product or service provided to third parties, (d) interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit the scope of use, (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products, except as permitted by law or by a written agreement signed by us, (f) remove or obscure any proprietary government mandated labels or other notices contained or in any Product, or (g) publicly disseminate information regarding the performance of the Products on any website, blog or social media platform. Any use of the Products in breach of these Terms, the Order Form or the Product documentation, that in Acumen’s reasonable judgment threatens the security, integrity or availability of the Services or of its intellectual property rights associated with, arising out of or integral to the Products , may result in immediate suspension of Customer’s access to the Services.
1.4. If the User is a U.S. government or state agency, these restrictions specifically include the limitations and restrictions as set forth or declared by specific reference to the applicable regulations specified under the Federal Acquisition Regulations (FARs) or Defense Acquisition Regulations (DFARs) standardized clauses, FAR 52, DFAR 252. or its “flow-down equivalent” under the FAR or DFAR as it relates to “restricted rights” regarding software, software documentation and technical data use and disclosure as more particularly specified in DFAR252.227-7017.
1.5. You agree to notify Acumen immediately if you become aware of any unauthorized use of the Products. You shall ensure that all Users keep their user IDs and passwords for the Products strictly confidential and not share such information with any unauthorized persons. You are responsible for any and all actions taken through use of your accounts and passwords.
1.6. You acknowledge that certain software components of the Product may be covered by open source licenses promulgated by the Open Source Initiative or by the Free Software Foundation (“Open Source Component”). If such open source license prohibits any of the restrictions in this Agreement, such restrictions will not apply to such Open Source Component.
1.8. Acumen implements industry standard security procedures to help protect SCM Data from security attacks. However, Customer acknowledges that use of the Services necessarily involves transmission of SCM Data over networks that are not owned, operated or controlled by Acumen, and Acumen is not responsible for any SCM Data lost, altered, intercepted or stored across such networks. Acumen cannot guarantee that its security procedures will be error-free, that transmissions of SCM Data will always be secure or that unauthorized third parties will never be able to defeat Acumen security measures or those of Acumen’s third-party hosting providers. Customer is solely responsible for maintaining the security of its network and computer systems. Acumen assumes no responsibility or liability for backing up SCM Data as the primary source.
1.9. Customer shall ensure that its use and its Users’ use of the Products does not exceed the permitted scope of use set forth in the Order Form and these Terms including the number of Contributors being tracked. Upon Acumen’s written request Customer shall provide to Acumen reasonable assistance and access to relevant documentation to verify Customer’s compliance. If Acumen determines that Customer has exceeded its permitted scope of use, Acumen will notify Customer of its determination and may require Customer to immediately discontinue the un permitted use or terminate Customer’s access to the Service and use of the Products. Acumen may invoice Customer for additional User licenses or subscriptions or number of Contributors commensurate with Customer’s actual past use and Customer shall pay Acumen’s invoice on receipt. Acumen and Customer may mutually agree to amend the Order Form to reflect Customer’s actual use on a going forward basis.
1.10. During the Term, Acumen shall provide support and maintenance as part of the Services at no additional charge.
In consideration for the Services, Customer shall pay Acumen the fees set forth in the Order Form (the “Fees”). Fees shall be payable on a monthly or yearly basis. Fees shall be due within 30 days of the date of the invoice issued by Acumen in accordance herewith. Payment of Fees may, at Acumen's discretion, be made via the credit card provided by the Customer through the Account, as may be updated by the Customer from time to time, or by wire transfer to the account designated by Acumen from time to time. The Fees are exclusive of any applicable taxes.
3.1. All intellectual property rights in the Platform, Services and any part thereof ,including any and all derivatives, changes and improvements thereof lie exclusively with Acumen. Customer shall (i) not attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Platform, Service or any part thereof for any purpose; (ii) not represent that it possesses any proprietary interest in the Platform, Service, or any part or derivative thereof; (iii) not directly or indirectly, take any action to contest Acumen's intellectual property rights or infringe them in any way; (iv) except as specifically permitted in writing by Acumen, not use the name, trademarks, trade-names, and logos of Acumen; (v) except as specifically permitted herein, not copy any part or content of the Platform other than for Customer’s own internal business purposes; (vi) not copy any features, functions or graphics of the Platform or use it to build a competitive product or service; and (vii) not remove the copyright, trademark and other proprietary notices contained on or in Acumen's Platform, products or Services.
3.2. Customer hereby grants to Acumen a non-exclusive, royalty-free, time limited, worldwide license to use all data provided to Acumen in connection with these Terms, to permit Acumen to perform the Services to Customer as set forth in these Terms, all subject to Acumen’s compliance with applicable law and privacy regulations.
4.1. For the purposes hereof, "Confidential Information" means any proprietary or trade secret information disclosed by one party to the other which can be reasonably understood under the circumstances to be confidential, but excluding any information that: (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of receiving party; (ii) the receiving party can demonstrate in its records to have had rightfully in its possession prior to disclosure of the Confidential Information by the disclosing party; (iii) the receiving party rightfully obtains from a third party who has the right to transfer or disclose it, without default or breach of these Terms; (iv) the receiving party can demonstrate in its records to have independently developed, without breach of these Terms and/or any use of or reference to the Confidential Information.
4.2. The receiving party agrees (i) not to disclose the disclosing party’s Confidential Information to any third parties other than to its directors, employees, advisors, or consultants (collectively, its “Representatives”) on a “need to know” basis and provided that such Representatives are bound by confidentiality obligations not less restrictive than those contained herein;(ii) not to use or reproduce any of the disclosing party’s Confidential Information for any purposes except to carry out its rights and responsibilities under these Terms; (iii) to keep the disclosing party’s Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care. Notwithstanding the foregoing, if the receiving party is required by legal process or applicable law, rule, or regulation to disclose any of the disclosing party’s Confidential Information, then prior to such disclosure, if legally allowed, receiving party will give prompt notice to the disclosing party so that it may seek a protective order or other appropriate relief. The confidentiality obligations hereunder shall expire three years from the date of termination or expiration of these Terms and shall supersede any previous confidentiality undertakings between the parties.
Acumen may process personal data as necessary to perform the Services, in accordance with the terms of the Data Processing Addendum which may be appended to the Order From, to the extent applicable.
6.1. ACUMEN PROVIDES THE PLATFORM AND SERVICES TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT WARRANTIES OR REPRESENTATION OF ANY KIND, AND ACUMEN EXPRESSLY DISCLAIMS ALL WARRANTIES - STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF PROVIDERABILITY, NON INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY. ACUMEN FURTHER DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE PLATFORM OR ANY RELATED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
6.2. Customer acknowledges that while Acumen has the required expertise to generate quality content, the quality and accuracy of recommendations by the Platform may depend on the accuracy and completeness of the information provided in connection with each journey.
6.3. EXCEPT FOR WILLFUL MISCONDUCT OR FRAUD, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, ACUMEN’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THESE TERMS SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO ACUMEN DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA (INCLUDING END-USER INFORMATION), COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT ACUMEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.1. Subject to this Section 7, these Terms will remain in full force and effect while you use the Platform or Services or for any other period of time as set forth on any Order Form (the "Term"). We may (a) suspend your rights to use the Platform and/or Services (including your Account) or (b) terminate these Terms, at any time for any reason at our sole discretion, including for any use of the Site or Services in violation of these Terms.
7.2. Upon termination of these Terms, your Account and right to access and use the Site and Services will terminate immediately. You understand that any termination of your Account may involve deletion of your Content associated therewith from our Site, Services, and live databases. Acumen will not have any liability whatsoever to you for any termination of these Terms, including for termination of your Account or deletion of Your Content. All terms and provisions of these Terms, which by their nature are intended to survive any termination or expiration of these Terms, will so survive
All notices or other communications hereunder shall be in writing and given in person, by registered mail, by an overnight courier service which obtains a receipt to evidence delivery, or by facsimile or email transmission with written confirmation of receipt, addressed to the address set forth on the signature page or to such other address as any party hereto may designate to the other in accordance with the aforesaid procedure. All notices and other communications delivered in person or by courier service shall be deemed to have been given upon delivery, those given by facsimile or email transmission shall be deemed given on the business day following transmission, and those sent by registered mail shall be deemed given three calendar days after posting.
Acumen may, with Customer’s prior approval, issue publicity or general marketing communications concerning its involvement with the Customer. In addition, Acumen may use Customer’s logo in publications of Acumen’s customers.
These Terms constitutes the entire agreement between Acumen and Customer and supersedes any previous agreements or representations, either oral or written, with respect to the subject matter of these Terms. All amendments will be made only in writing. Customer shall not transfer or assign its rights or obligations under these Terms to any third party. Any purported assignment contrary to this section shall be void. Acumen may assign its rights and obligations under these Terms upon a prior written notice to Customer. If any part of these Terms is declared invalid or unenforceable for any reason, such part shall be deemed modified to the extent necessary to make it valid and operative and in a manner most closely representing the intention of the parties, or if it cannot be so modified, then eliminated, and such elimination shall not affect the validity of any remaining portion, which shall remain in force and effect. Any failure by a party to insist upon or enforce performance by the other of any of the provisions of these Terms or to exercise any rights or remedies under these Terms or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance. These Terms is governed by the laws of the State of Israel, without regards to its conflict of laws principles, and any dispute arising from these Terms shall be brought exclusively before the courts of Tel Aviv, Israel.