Services Agreement 2018-01-14T17:35:08+00:00

SERVICES AGREEMENT

THIS SERVICES AGREEMENT (the “Agreement“) constitute a binding agreement between you and MoovingON Ltd, regarding NOC services provided by us to you, and is an integral part of the Statement of Work (hereinafter: the “SOW“) signed between you and us, unless otherwise was agreed in writing.

In this Agreement, “We” or “Us” or “Company” shall mean MoovingON Ltd., an Israeli Company, CN# 514747740. We refer to “You” as Company’s customer who signed with the Company a statement of work / business offer/ quote (all shall be referred as “SOW“). Each of the parties to this Agreement may be referred to herein as a “Party” and together as the “Parties“.

  1. THE ENGAGEMENT; THE SERVICES
    1. We shall provide to You, as an independent contractor, NOC services and shall deliver to You such deliverables (the “Services” and the “Deliverables”), all in accordance with the terms and conditions of, and by the times set forth in the SOW and incorporated herein by reference.
    2. We hereby declare that we have the experience, talent, expertise and knowledge required in order to perform the Services.
    3. We will provide all equipment, tools, know-how and other resources necessary to perform the Services, at our sole cost and expense.
    4. We shall utilize the highest professional skill, diligence, ethics and care to ensure that all Services are performed to your full satisfaction and to provide the expertise required in connection with the Services.
    5. We may not employ or engage sub-contractors to assist us without receiving your prior written consent.
    6. We represent and warrant that:
      1. We have full legal power and authority to carry on our business and to enter into this Agreement and perform all of our obligations hereunder.
      2. in performance of our obligations under this Agreement, We shall comply with all applicable laws, ordinances, rules, regulations, orders, licenses, permits and other governmental requirements.
      3. in performance of the Services, We shall adhere to the terms and conditions of the SOW; and shall ensure that the Deliverables satisfy the terms and conditions of the SOW. It’s clarified that regarding any contradiction between the SOW and this Agreement – the terms of the SOW prevail.
      4. All Deliverables and any Work Product (as defined below) in connection with this Agreement shall be free and clear of any liens or other rights of any third party and will be compliant with the terms of this Agreement.
    7. No-Conflict. We shall avoid any conflict of interests with You. In the event that We becomes aware of any potential conflicts of interest, We shall disclose such conflict to You immediately.
  2. COMPENSATION
    1. Consideration. In consideration for the Services, You shall pay Us the amounts set forth in the SOW (the “Consideration”), in accordance with the milestones and payment terms set forth in the SOW.
    2. If not otherwise set forth in the SOW, payment is made within 30 days of invoice.
    3. Taxes. We shall bear any and all taxes and levies in connection with any payments made to Us pursuant to this Agreement, other than VAT which, if applicable, shall be added to any payment against a tax invoice. In the event that pursuant to any law or regulation, tax is required to be withheld at source from any payment made to Us, You shall withhold said tax at the rate set forth in the certification issued by the appropriate taxing authority and provided to You by Us, or in the absence of such certification, at the rate determined by said law or regulation.
    4. The payments which will be explicitly set forth in the Payment Milestones (as defined in the SOW) shall constitute the full and final consideration for the Services and We shall not be entitled to any additional consideration, of any form, including, without limitation, expense reimbursement, unless otherwise was agreed between the Parties in in writing.
  3. RELATIONSHIP OF THE PARTIES
    1. It is a principle term of this Agreement, agreed to and understood by the Parties hereof, that We shall provide the Services to You as, and only as, an independent contractor. No employer-employee relationship is created between You and Our personnel.
    2. We undertake to indemnify You, for any damages, costs or expenses incurred by the You with respect to any claim regarding an employee-employer relationship between You and our personnel, as it would be ruled in Israeli Court.
    3. We are not authorized to obligate You in any way or create any commitments on your behalf, except to the extent explicitly authorized by You in writing.
  4. TERM AND TERMINATION
    1. This Agreement shall govern the relationship between the Parties commencing as of the effective date stated on the SOW and until terminated pursuant to Section 4.2 below.
    2. The Services may be provided to you based on annual plan or monthly plan, as agreed on the SOW. In the event your packed is based on a monthly plan, You acknowledge that You may terminate this Agreement, at any time, by providing Us with Sixty (60) days prior written notice which shall come into effect at the end of the calendar month, which the notice was sent during it. In the event your package is based on an annual plan, You acknowledge that the term of this Agreement shall be for 12 months period, starting the effective date stated on the SOW. You also acknowledge that on the annual plan, the term of this Agreement shall be automatically renewed by the end of each 12 months period, unless You sent US a prior written notice 60 days before the end of each 12 months period.
    3. We shall have no right for a lien on any of your assets, equipment or any other material in his possession (including, without limitation, any Deliverables, Work Product and Customer IP and Confidential Information, as defined below). We shall return to the You all of your equipment, which is under our possession no later than the day of termination of this Agreement.
    4. Sections 3, 4, 5, 6 and 7 will survive the termination or expiration of this Agreement.
  5. PROPRIETARY RIGHTS
    1. Work Product. We agree that all work product supplied to You and/or produced by Us pursuant to this Agreement, in written or electronic form, including, without limitation, the Deliverables, all notes, test programs, documentation and all hard copy or electronic material developed, obtained and produced in connection with the Services, and including any of your specific customizations or deliverables (collectively, “Work Product”), shall be fully owned by You. You, upon discovery and/or creation by the Us shall own all patents, copyrights, trade secret, Moral Rights (as defined below) and other rights including, without limitation, any other intellectual property right, in the Work Product, including without limitation, the exclusive right to use, modify, update, manufacture, sell or license the Work Product and any part or derivative thereof. We: (a) shall not retain any proprietary or other rights in the Work Product; (b) shall transfer all Work Product to You; and (c) shall not be entitled to make any use whatsoever of Work Product other than for the purpose of performing its obligations under this Agreement, without your express prior written consent. Without limiting any of the foregoing, upon your first request, We shall transfer to You all Work Product.
      Without derogating from the above, it’s clarified that We retains all our previous knowledge, know how, and any IP rights it has before the execution of this Agreement, and We DO NOT assign any of it to You as a result of this Agreement. In addition, our systems, designs and format materials used to produce the Work Product are our sole property, and You shall only own and will have the right to use the Work Product provided by us.
    2. Your Material. We acknowledge that all written or electronic or oral information, documents, descriptions, designs, data or other material it may be provided by You or have access to in the course of performance of Services under this Agreement are owned by or otherwise proprietary of You or your third party licensors. We acknowledge and agree that this Agreement does not grant any right, title or interest in and to any patents, copyrights, trade secrets, trademarks or other property rights or rights of ownership in such material or any of your confidential or proprietary information in whatever form (“Customer IP”), and acknowledges that such Customer IP is intellectual property belonging to You or your licensors.
    3. Assignment of Work Product. Subject to the terms of Section 5.1 above, and regarding the Work Product only, We hereby irrevocably and unconditionally assigns to You, your successors and assigns, ownership of all rights, including without limitation, (i) patents, patent applications, and patent rights, including any and all continuations or extensions thereof; (ii) copyrights, copyright applications, and Moral Rights; (iii) rights relating to the protection of trade secrets and confidential information; and (iv) all rights to sue for any infringement of any of the foregoing rights and the right to all income, royalties, damages and payments with respect to any of the foregoing rights, all – in each and every item of Work Product, insofar as We may be deemed to retain any such right, by operation of law, in the Work Product. We also hereby forever waives and agrees never to assert any and all Moral Rights We may have in or with respect to any Work Product, even after termination of this Agreement. “Moral Rights” means any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any similar right, existing under the law of any country in the world, or under any treaty. From time to time upon your request, We shall confirm such assignment and perform, during and after the term of this Agreement, all acts deemed reasonably necessary or desirable by You to permit and assist it, at your expense, in obtaining, maintaining, defending and enforcing the Work Product in any and all countries. You, your successors and assigns, shall have the right to obtain and hold in its or their own name(s) all copyright registrations and other evidence of rights that may be available for items of Work Product.
      You acknowledge that the Work Product shall be delivered in a form of Excel Sheet and are subjects to the terms of Microsoft service agreement.
    4. Non-Infringement. We undertake that the components of the Work Product, will not contain any preexisting work subject to the copyright or other proprietary right of any third party (including, without limitation, any “creative commons”, “open source” or “free software”), or any modification, adaptation or use of such work which, inter alia, (i) if prepared without authorization of the owner of the copyright or other proprietary right in such preexisting work, would constitute an infringement of such copyright or other proprietary right, (ii) will require You to publish or provide access or any of your other rights to, source code, proprietary information, technology or intellectual property, or (iii) restrict your ability to distribute, use, or in any way exploit your products anywhere in the world. Without limiting the foregoing, in performing the Services under this Agreement, We agree to make best efforts to avoid development of any items that infringe intellectual property or the rights of any third party. Furthermore, without derogating from the aforementioned, if any third-party work or pre-existing work will be incorporated into any Work Product, with or without your prior written consent, We undertake that You shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with rights to sub-license through multiple tiers of sub-licensees) to make, have made, modify, use and sell such work for whatever use. In the event that We use any third-party work or pre-existing work which use is allowed pursuant to the terms hereof, including, without limitation, third party work which is in the public domain, the We shall provide You with a full detailed list of such works and shall fully responsible and liable that You will be in compliance in all respects with the terms of use of any and all licenses which govern the use of such works. NEVERTHELESS, IT’S CLARIFIED THAT WE DON’T PROVIDE ANY LICENSE TO USE ANY OF MICROSOFT / GOOGLE / THIRD PARTIES’ PRODUCTS, AND SUCH USE SHALL BE ON YOUR OWN EXPENSE, EVEN IF THE WORK PRODUCT IS GIVEN IN THE FORM OF ONE OF MICROSOFT PRODUCTS AND/OR GOOGLE PRODUCTS AND/OR OTHER THIRD PARTIES’ PRODUCTS.
  6. WARRANTY
    1. Warranty Obligation. We warrant solely to You that the Deliverables will be free from material defects in materials and workmanship, when given normal, proper and intended usage, and will perform in accordance to the guidelines set in the SOW, and will provide the functions described in the agreed SOW.
    2. Disclaimer.
      1. EXCEPT FOR THE WARRANTIES STATED IN THIS SECTION 6, THE DELIVERABLES ARE PROVIDED “AS IS” WITHOUT ADDITIONAL WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. WE DO NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF USE, OF THE DELIVERABLES IN TERMS OF CORRECTNESS, ACCURACY, COMPLETENESS, RELIABILITY, CURRENTNESS, OR OTHERWISE.
      2. WE MAKE NO OTHER WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
      3. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WE SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SYSTEM, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF COMPANY, AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S LIMITATION OF LIABILITY UNDER THIS SECTION SHALL NOT APPLY TO ACTS OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
      4. EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS, OUR AGGREGATE LIABILITY UNDER ANY CLAIMS ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE AVERAGE MONTHLY FEES PAID BY YOU TO US UNDER THIS AGREEMENT.
  7. CONFIDENTIALITY
    1. “Confidential Information” shall include, without limitation, all trade secrets, data, formulae, processes, procedures, methods, documentation, information, records, drawings, designs, specifications, test results, evaluations, know how, materials related to tests, business, customers, assets, products, processes, or prospects related to the You, any and all Customer IP, and any and all Work Product. The term “Confidential Information” shall not include information that is or becomes part of the public domain through no act or fault of Us.
    2. We shall hold all your Confidential Information in strict confidence and shall in any case protect such Confidential Information with no less diligence than that taken to protects our own confidential or proprietary information. During the term of this Agreement and at any time thereafter, We shall not use any Confidential Information except to perform our explicit obligations under this Agreement, and shall not disclose such Confidential Information in any way to any third party. We shall take all precautions to ensure that the secrecy of your Confidential Information is preserved to the highest industry standards. We will be responsible that our personnel and other persons obtaining access to the Confidential Information through Us will also act in strict compliance with the foregoing, and will be liable for their actions and omissions.
    3. Upon your request or the expiration or termination of this Agreement for any reason whatsoever, We shall deliver to You any and all Work Product together with all copies thereof, and any other material containing or disclosing any Customer IP or Confidential Information.
  8. MISCELLANEOUS
    1. No solicitation. During the Term and for a period of twelve (12) months thereafter You shall not: (i) directly or indirectly, solicit, , consultant or otherwise, any of our employee(s) or induce or attempt to induce any such employee to terminate or reduce the scope of its engagement with Us; and/or (ii) directly or indirectly, solicit or induce, or attempt to solicit or induce, any of our consultants, service providers, agents, distributors, customers or suppliers to terminate, reduce or modify the scope of such person’s engagement with Us.
    2. Entire Agreement: This Agreement together with the SOW constitute the entire agreement between the Parties hereto with respect to the subject matter hereof and supersedes all prior understandings of such Parties with regard thereto. This Agreement cannot be modified, supplemented or rescinded except by a written instrument signed by all of the Parties to this Agreement.
    3. Amendment; Waiver. This Agreement may not be amended and no term may be waived, except by the written agreement signed by both Parties. The failure of a Party to enforce in any one or more instances any of the terms and conditions of this Agreement shall not be construed as a waiver of future performance of any such term or condition.
    4. Assignment. Neither Party may assign, subcontract, delegate or otherwise transfer this Agreement or any part thereof, voluntarily or by operation of law, without the other Party prior written consent, and any such assignment or transfer without such consent shall be null and void and of no force or effect whatsoever.
    5. Severability: If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable under applicable law, then such provision shall be excluded from this Agreement and the remainder of this Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms; provided, however, that in such event this Agreement shall be interpreted so as to give effect, to the greatest extent consistent with and permitted by applicable law, to the meaning and intention of the excluded provision as determined by such court of competent jurisdiction.
    6. Governing Law: The laws of the state of Israel, without giving effect to conflict of law rules, shall govern the interpretation and enforcement of this Agreement. Any dispute arising under or in relation to this Agreement shall be exclusively resolved in the competent court of the Tel-Aviv District, Israel, and each of the Parties hereby submits irrevocably to the exclusive jurisdiction of such court.
    7. Third Parties: Nothing in this Agreement, express or implied, is intended to confer upon any person, other than the parties hereto and their successors and assigns, any rights or remedies under or by reason of this Agreement.
    8. Notices: All notices and other communications required or permitted hereunder to be given to a Party to this Agreement shall be in writing and shall be emailed or mailed by registered mail, postage prepaid, or otherwise delivered by hand or by messenger, addressed to such Party’s address as set forth in the SOW or at such other address as the Party shall have furnished to the other Party in writing in accordance with this provision. Any notice sent in accordance with this Section ‎7.7 shall be effective (i) if mailed, three (3) business days after mailing, (ii) if sent by messenger, upon delivery, and (iii) if sent via email, upon confirmation of receipt or (if transmitted and received on a non-business day) on the first business day following confirmation of receipt.