1. Definitions

The following capitalized terms have the meanings set forth below:

“Affiliate” with respect to any entity, means any other entity controlling, controlled by or under common control with such entity, where “control” means direct or indirect ownership or voting control of fifty percent (50%) or more of the equity or voting securities of the entity in question or having the power, by commitment or otherwise, to elect a majority of the Board of Directors (or similar governing body) of the entity in question.

“Customer Data” means electronic data and content submitted to the Service by Customer and/or Users in connection with their use of the Service, excluding Analytics Information (as defined below).

“Documentation” means any manual or documentation provided or made available to the Customer in connection with the operation of the Service.

“Feature” means any module, tool, functionality or feature of the Service.

“Order Form” means a written or electronic order form, to/in which this Agreement is attached or incorporated, and which is agreed by the Parties. The Order Form shall include the commercial terms, including the Subscription Scope, agreed between the Parties.

“Service” means the AI Feedback analysis platform provided by the Company to the Customer, on the basis of Software as a Service (SaaS) subscription. The term “Service” also includes the Documentation.

“Subscription Scope” means any Service usage and/or limitations set forth in the applicable Order Form or Partner Order Form (if purchased via Partner).

“Subscription Term” means the Service subscription period specified in the Order Form or the Partner Order Form, as the case may be.

“Users” means an employee of Customer authorized to access and use the Service on behalf of the Customer.

2. Subscription

Order

Customer may place an order for Services directly with Company via an Order Form. Each Order Form is hereby incorporated into this Agreement by reference and shall be deemed to be a stand-alone agreement that incorporates by reference the terms of this Agreement. To the extent of any conflict between the main body of this Agreement and an Order Form, this Agreement shall prevail, unless and to the extent that the Order Form expressly states otherwise. If Customer has purchased the license granted hereunder from a reseller, distributor or other channel partner authorized by Company (“Partner”), and any conflict exists between this Agreement and the agreement entered into between Customer and the Partner, including any purchase order thereunder (“Partner Order Form”), then, as between Customer and Company, this Agreement shall prevail. Any rights granted to Customer in such Partner Order Form which are not expressly contained in this Agreement shall apply only as between Customer and such Partner under the Partner Order Form, and not under this Agreement and Company shall have no obligation, liability or warranty with regards to such undertakings.

Access Right

Subject to the terms and conditions of this Agreement, Company hereby grants Customer a limited, worldwide, non-exclusive, non-sublicensable, non-transferable and revocable right to remotely access (i.e. on a SaaS basis) and/or use (as the case may be), the applicable Service during the Subscription Term, solely for Customer’s internal business purposes (collectively, the “Subscription”). Customer may use the Service subject to the Subscription Scope, other usage limitations or restrictions specified in this Agreement and applicable laws and regulations. The Customer shall be solely responsible for providing all equipment, systems, assets, access and ancillary goods and services needed to access and use the Service, for ensuring their compatibility with the Service.

Additional Purchases

Purchases of access to additional Features and/or additional volume under the Subscription Scope (collectively, “Additional Purchases”) shall be documented by a mutually signed written addendum to the Order Form or by executing a new Order Form, in each case according to the pricing agreed between the Parties. If Customer makes any Additional Purchases during a Subscription Term, the Subscription Fees (as defined below) and the Service term therefore will be prorated to be coterminous with the Subscription Term.

Account Setup

In order to access the Service, Customer is required to set up an administrative account with Company, by submitting the information requested in the applicable Service interface or by other means as agreed upon by the Parties (“Account”), and each User may need to set up a user account (each, a “User Account”, and references herein to the “Account” shall be deemed to include all such User Accounts if applicable). Customer warrants that all information submitted during the registration process is, and will thereafter remain, complete and accurate. Customer shall be responsible and liable for all activities that occur under or in the Account. Customer will require that all Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Customer shall be fully responsible and liable for any breach of this Agreement by a User. Any unauthorized access to or use of the Service must be immediately reported to the Company.

Hosting

The Service is hosted by a third party hosting services provider selected by Company (currently Google Cloud Platform) (“Hosting Provider”), and accordingly the availability of the Service shall be in accordance with the Hosting Provider’s then-current uptime commitments.

Suspension

Company reserves the right to temporarily suspend provision of the Service: (a) if Customer is 7 days or more overdue on a payment; (b) if Company deems such suspension necessary as a result of Customer’s breach under Section ‎5 (Subscription Restrictions); (c) if Company reasonably determines suspension is necessary to avoid material harm to Company or its other customers, including if the Service’s cloud infrastructure is experiencing denial of service attacks or other attacks or disruptions outside of Company’s control; or (d) as required by law or at the request of governmental entities.

3. Support Services, Trial and Professional Services

Support Services

Company will provide Customer with reasonable assistance, support, consulting and training services for the Service via telephone or email, to answer any questions or concerns relating to the Service. The support services may be performed by Company and/or Company’s certified third party providers. Company shall be responsible for such service providers’ performance of the support services.

Updates

Customer acknowledges and agrees that Company may from time to time, during the Subscription Term, develop bug fixes and/or patches (“Updates”), which may either: (i) remotely and automatically update and maintain the Service components; or (ii) require manual installation by Company (via wireless connection or on premises visit), and in such case, Customer agrees to facilitate such installation in accordance with Company’s instructions, and Company shall have no responsibility, obligation or liability of any kind whatsoever in respect of versions of the Service that are not updated in accordance with the foregoing.

Professional Services

In the event Customer wishes to receive any additional services from Company, such as installation, deployment, configuration, customization, integration, training or other professional services (“Professional Services”), Customer shall request same from Company in writing, and, if Company, in its sole discretion, agrees to perform such Professional Services, such Professional Services shall be set out in sequential Statements of Work to this Agreement, as shall be negotiated and executed by both Parties (each, an “SOW”). The Company will charge for Professional Services in accordance with the fees and payment terms specified in the applicable SOW. Each SOW is hereby deemed incorporated into this Agreement by reference. To the extent of any conflict between the main body of this Agreement and an SOW, the former shall prevail, unless and to the extent that the SOW expressly states otherwise.

Trial

The Company may offer a free, no-obligations trial period of the Service, for the period specified under the relevant Order Form (“Trial Period”). Customer acknowledges and agrees that this Agreement is applicable and binding upon Customer during the Trial Period and that Company: (a) does not make any commitments in connection with the Service during the Trial Period, and any of the representations, warranties or other obligations of the Company hereunder (including, without limitation, any indemnification obligations of Company under this Agreement) shall not apply; and (b) may send Customer, subject to Customer opting out, communications and other notices about the Service to Customer’s email address. The Company reserves the right to modify, cancel and/or limit the Trial Period offer at any time. Unless a Party provides the other Party with a written notice of termination for convenience at least 7 days prior to the expiration of the Trial Period, subject to payment of the Subscription Fees, the Agreement shall automatically continue in full effect and the Subscription Term (as defined in the Order Form) shall automatically commence upon the expiration of the Trial Period.

4. Subscription Fees

Subscription Fees

Customer shall pay Company the Subscription fees specified in the respective Order Form (“Subscription Fees”).

General

Unless expressly stated otherwise in the Order Form: (a) all Subscription Fees are stated, and are to be paid, in U.S. Dollars; (b) all payments under this Agreement are non-refundable, and are without any right of set-off or cancellation; (c) all Subscription Fees are payable, and shall be invoiced, in advance, and shall be paid within 30 days of receipt of invoice; and (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of the rate of 1.5% per month and the highest amount permitted by applicable law. The Company may update the fees once every calendar year upon providing written notice thereof to the Customer.

Taxes

Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon Company’s net income. In the event that Customer is required by any law applicable to it to withhold or deduct taxes for any payment under this Agreement, then the amounts due to Company shall be increased by the amount necessary so that Company receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction. If an Order Form (or Order Form number) is required by the Customer in order for an invoice to be paid, then Customer shall promptly provide such Order Form (or number) to Company.

Partner Payment

If Customer purchased the Subscription via a Partner, the Subscription is subject to the full payment of the applicable fees as set forth in the Partner Order Form between Customer and the respective Partner. All payments shall be made directly to the Partner, as agreed between Customer and Partner. If Customer is entitled to a refund under the terms and conditions of this Agreement, then, unless Company specifies otherwise, Company will refund any applicable fees to the Partner, and the Partner alone will be responsible for refunding the appropriate amounts to Customer.

Payment Providers

Payments to Company may be processed via certain online payment methods and service providers, such as PayPal and Stripe (“Online Payment Services”). Company may add or change the Online Payment Services at any time and at Company’s sole discretion. Online Payment Services enable Customer to send payments securely online using a credit card, debit card or bank account. Company does not control and are not affiliated with the providers of such Online Payment Services, as each is an independent contractor, neither is the agent or employee of the other, and neither is responsible in any way for the actions or performance (or lack thereof) of the other. The use of the Online Payment Services is at Customer’s sole discretion and liability. It is the Customer’s responsibility to abide by all the terms specified by the Online Payment Services’ providers in their terms of use and privacy policies. Company acknowledged that Company is fully assuming the risks of conducting any transactions via the Online Payment Services in connection with the Service.

5. Subscription Restrictions

As a condition to the Subscription, and except as expressly permitted otherwise under this Agreement, Customer shall not do (or permit or encourage to be done) any of the following Subscription restrictions (in whole or in part): (a) copy, “frame” or “mirror” the Service; (b) sell, assign, transfer, lease, rent, sublicense or otherwise distribute or make available the Service to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Service; (d) modify, alter, adapt, arrange or translate the Service; (e) decompile, disassemble, decrypt, reverse engineer, extract or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas or algorithms) of the Service; (f) remove, alter or conceal any proprietary rights notices displayed on or in the Service; (g) circumvent, disable or otherwise interfere with security-related, or technical features or protocols of the Service; (h) make a derivative work of the Service, or use it to develop any service or product that is the same as, competes with (or substantially similar to) it; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Service; and/or (j) take any action that imposes or may impose (as determined in Company’s reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Service, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure.

6. Personal Data

To the extent that the Customer needs a data processing agreement, Customer shall request Company at info@fragment.fit to provide it with Company’s data processing agreement and return it signed to the Company as described therein. Once a data processing agreement is signed by both Parties, it shall be deemed as an exhibit to this Agreement. The Company’s privacy policy is available at https://fragment.fit/privacy-policy/. Customer hereby represents, warrants and covenants that: (i) it shall comply with any and all applicable laws and regulations when making use of the Service; (ii) it is solely responsible for the legality, accuracy and quality of Customer Data, such as for ensuring that Customer’s collection, processing, storage and transmission Customer Data is compliant with all applicable laws and regulations, as well as any and all privacy policies, agreements or other obligations Customer may maintain or enter into with its customers; (iii) no processing of Customer Data under this Agreement will violate any law, regulation, proprietary right or privacy right; and (iv) Customer has obtained and will maintain all required rights, consents, and licenses, provided all applicable notices, and has and will maintain all ongoing legal bases under relevant privacy laws (if applicable), necessary to provide, make available, and otherwise expose Customer Data to Company.

7. Mutual Warranties

Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law.

8. Intellectual Property Rights

Service

As between the Parties, Company is, and shall be, the sole and exclusive owner of all intellectual property rights in and to: (a) the Service and all related software and intellectual property; and (b) any and all improvements, derivative works and/or modifications of/to the foregoing, regardless of inventorship or authorship. Customer shall make, and hereby irrevocably makes, all assignments necessary or reasonably requested by Company to ensure and/or provide Company the ownership rights set forth in this paragraph. The Company shall be entitled, from time to time, to modify and replace the Features (but not material functionality, unless it improves the material functionality) and user interface of the Service. Nothing herein constitutes a waiver of the Company’s intellectual property rights under any law.

Feedback

If Company receives any feedback (which may consist of questions, comments, suggestions or the like) regarding any of the Service (collectively, “Feedback”), all rights, including intellectual property rights in such Feedback shall belong exclusively to the Company and such shall be considered Company’s Confidential Information. The Customer hereby irrevocably and unconditionally transfers and assigns to the Company all intellectual property rights it has in such Feedback and waives any and all moral rights that Customer may have in respect thereto. It is further understood that use of Feedback, if any, may be made by the Company at its sole discretion, and that Company in no way shall be obliged to make use of the Feedback.

Analytic Information

Any anonymous information, derived from the use of the Service (i.e., metadata, aggregated and/or analytics information and/or intelligence relating to the operation, support and/or Customer’s use of the Service) which is not personally identifiable information and does not identify Customer (“Analytics Information”) may be used by Company to provide the Service, for compliance with applicable laws and for development, improvement of the Service and/or statistical purposes. Analytics Information is Company’s exclusive property.

Customer Data

Customer hereby grants Company and its Affiliates a worldwide, non-exclusive, non-assignable (except as provided herein), non-sublicensable (except to Company’s subcontractors, if applicable), non-transferable right and license, to access and use the Customer Data, including without limitation for Company’s provision of the Services and related services hereunder. As the exclusive owner of the Customer Data, Customer represents, warrants and covenants that Customer has received and/or obtained any and all required consents or permits and has acted in compliance with any and all applicable laws, including, without limitation privacy laws, as to allow Company to access, receive, transfer and use the Customer Data solely in order to perform the Service. Company may use or disclose the Customer Data: (a) to satisfy any applicable law, regulation, legal process, subpoena or governmental request; (b) for the purposes of Company’s product analytics; and/or (c) to collect, store, transfer and/or process the Customer Data through Company’s Affiliates, third party service providers and vendors, as reasonably necessary to provide the Service. The Company will maintain commercially reasonable administrative, technical and physical safeguards designed to protect the security, confidentiality and integrity of the Customer Data.

Third Party Components

The Service may use or include third party open source software, files, libraries or components, or other third party software (collectively, “Third Party SW”), that may be distributed to Customer and are subject to third party license terms. A list of any third party and related licenses will be provided by the Company upon written request. If there is a conflict between any Third Party SW license and the terms of this Agreement, then the Third Party SW license terms shall prevail, but solely in connection with the related Third Party SW. The Company makes no warranty or indemnity hereunder with respect to any Third Party SW.

9. Confidentiality

“Confidential Information” means any non-public information disclosed by or on behalf of one Party (“Discloser”) to the other Party (“Recipient”) pursuant to this Agreement, in any form or media, including without limitation trade secrets and other information related to the products, software, technology, data, know-how or business of the other Party, and any other information that a reasonable person should have reason to believe is proprietary, confidential or competitively sensitive. Without limiting the foregoing, the Service is Company’s Confidential Information. Confidential Information does not include any information which: (i) is or becomes generally known and available to the public through no act of the Recipient; (ii) was already in the Recipient’s possession without a duty of confidentiality owed to the Discloser at the time of the Discloser’s disclosure; (iii) is lawfully obtained by the Recipient from a third party who has the express right to make such disclosure; or (iv) is independently developed by the Recipient without breach of an obligation owed to the Discloser. The Recipient may use the Discloser’s Confidential Information solely to perform its obligations under this Agreement. The Recipient will use no less than reasonable efforts to protect the Discloser’s Confidential Information from unauthorized access, use or disclosure. Except as set forth in the immediately following sentence, the Recipient will not disclose the Discloser’s Confidential Information to any third party except to its employees, consultants, affiliates and contractors (“Representatives”) having a need to know such information to perform the obligations under this Agreement, who have signed a non-disclosure agreement with the Recipient containing terms at least as protective of the Discloser’s Confidential Information as those contained herein and in any event, Recipient shall remain responsible for the acts and/or omissions of its Representatives to the same extent as if such acts and/or omissions were performed by the Recipient. The Recipient may disclose the Discloser’s Confidential Information to the extent that such disclosure is required by law or by the order of a court of similar judicial or administrative body, provided that it notifies the Discloser of such required disclosure to enable Discloser to seek a protective order or otherwise to prevent or restrict such disclosure. All right, title and interest in and to Confidential Information are and will remain the sole and exclusive property of the Discloser. The Parties’ obligations with respect to Confidential Information shall expire 5 years from the date of termination or expiration of this Agreement, unless a longer period of protection applies under applicable law, either as trade secret information or otherwise.

10. Disclaimer of Warranties

The Company represents and warrants that, under normal, authorized use, the Service shall substantially perform in conformance with its Documentation. As Customer’s sole and exclusive remedy and Company’s sole liability for breach of this warranty, Company shall use commercially reasonable efforts to repair the Service. The warranty set forth herein shall not apply if the failure of the Service results from or is otherwise attributable to: (i) repair, maintenance or modification of the Service by persons other than Company or its authorized contractors; (ii) accident, negligence, abuse or misuse of the Service; (iii) use of the Service other than in accordance with the Documentation; (iv) if applicable, Customer’s failure to implement in a timely manner any update made available by Company; or (v) the combination of the Service with equipment or software not authorized or provided by Company. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND THE RESULTS THEREOF ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY DOES NOT WARRANT THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR OPERATE ERROR-FREE. EXCEPT AS SET FORTH IN SECTION ‎7 (MUTUAL WARRANTIES) AND THIS SECTION ‎11, COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, SATISFACTORY, QUALITY, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO PUBLIC NETWORKS OR CUSTOMER’S HOSTING SERVICES. THE COMPANY SHALL NOT BE RESPONSIBLE FOR ANY WARRANTIES AND REPRESENTATIONS MADE BY ANY PARTNER TO THE CUSTOMER.

11. Limitation of Liability

WITHOUT DEROGATING FROM COMPANY’S INDEMNIFICATION OBLIGATION UNDER SECTION ‎13 ‎‎AND EXCEPT FOR ANY DAMAGES RESULTING FROM EITHER PARTY’S WILLFUL MISCONDUCT AND/OR CUSTOMER’S MISAPPROPRIATION OR OTHERWISE VIOLATION OF COMPANY’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING VIOLATION OF THE SUBSCRIPTION RESTRICTIONS SPECIFIED UNDER SECTION 5 BY CUSTOMER): (I) NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, REPUTATION, PROFITS, DATA OR DATA USE, OR THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES; AND (II) EITHER PARTY’S MAXIMUM LIABILITY FOR ANY AND ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID OR PAYABLE TO COMPANY BY CUSTOMER IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. FOR CLARITY, THE LIMITATIONS IN THIS SECTION DO NOT APPLY TO PAYMENTS DUE TO COMPANY UNDER THIS AGREEMENT (INCLUDING ITS EXHIBITS).

12. Indemnification

Indemnity

Company agrees to defend, at its expense, any third party action or suit brought against Customer alleging that the Service, when used as permitted under this Agreement, infringes intellectual property rights of a third party (“IP Infringement Claim”); and Company will pay any damages finally awarded by a court of competent jurisdiction against Customer that are attributable to any such IP Infringement Claim, provided that Customer: (i) promptly notifies Company in writing of such claim; and (ii) grants Company the sole authority to handle the defense or settlement of any such claim and provides Company with all reasonable information and assistance in connection therewith, at Company’s expense. The Company will not be bound by any settlement that Customer enters into without the Company’s prior written consent.

IP Infringement Claim Remedies

If the Service becomes, or in Company’s opinion is likely to become, the subject of an IP Infringement Claim, then Company may, at its sole discretion: (a) procure for Customer the right to continue using the Service; (b) replace or modify the Service to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot be accomplished despite Company’s reasonable efforts, then Company may terminate the affected Order Form(s) upon written notice to Customer, and Customer shall be entitled to receive a pro-rated refund of any prepaid Subscription Fees under such Order Form(s) based on the remaining period of the corresponding Subscription Term(s).

Indemnity Restrictions

Notwithstanding the foregoing, Company shall have no responsibility for IP Infringement Claims resulting from or based on: (i) Company’s compliance with Customer’s instructions or specification; (ii) combination or use of the Service with equipment, devices or software not supplied by Company; (iii) any modification of the Service, or portions thereof made by or on behalf of Customer; or (iv) Customer’s failure to implement in a timely manner any Updates made available to Customer in order to avoid such infringement.

This Section ‎13 states the Company’s entire liability, and Customer’s exclusive remedy, for any IP Infringement Claim.

13. Term and Termination

Term

This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue in full force and effect for the duration of the Subscription Term (“Term”).

Termination for Breach

Each Party may terminate this Agreement and/or an Order Form(s) immediately upon written notice to the other Party if the other Party commits a material breach under this Agreement and, if curable, fails to cure that breach within 60 days after receipt of written notice specifying the material breach (except that for payment defaults, such cure period will be 7 days).

Termination for Bankruptcy

Each Party may terminate this Agreement and/or an Order Form(s) upon written notice to the other Party upon the occurrence of any of the following events in respect of such other Party: (a) a receiver is appointed for the other Party or its property, which appointment is not dismissed within 60 days; (b) the other Party makes a general assignment for the benefit of its creditors; (c) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within 60 days; or (d) the other Party is liquidating, dissolving or ceasing normal business operations.

Effect of Termination; Survival

Upon termination of this Agreement and/or of any respective Order Form for any reason: (a) the Subscription shall automatically terminate; (b) Customer shall cease all access and use of the applicable Service thereunder and shall, if applicable, remove the applicable Service from all hard drives, networks and other storage media and destroy all copies of the applicable Service in Customer’s possession or under Customer’s control, and to the extent requested by Company, provide a certification to that effect within 10 business days or, if required, permit the Company’s designated personnel to erase, remove or otherwise destroy the Service from the Customer’s systems and all copies thereof in its possession which are fixed or resident in the memory or hard disks of its devices; and (c) Customer shall (as directed) permanently erase and/or return all Confidential Information of Company in Customer’s possession or control. Following termination, all outstanding Subscription Fees and other charges that accrued as of termination, which become immediately due and payable, and if necessary, the Company shall issue a final invoice therefor. Provisions intended to survive the termination of this Agreement, including but not limited to 1, 4, 5, 8, 10, 11, 12, 13, 14.4 and 15 herein, shall so survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.

14. Miscellaneous

Entire Agreement; Amendments

This Agreement, including the data processing agreement (if applicable), and any exhibits attached or referred hereto, represents the entire agreement between the Parties concerning the subject matter hereof, replaces all prior and contemporaneous oral or written understandings and statements, and may be amended only by a written agreement executed by both Parties. Any terms and conditions (whether printed, linked to or otherwise), within any purchase order or related correspondence which that purport to modify or supplement the terms and conditions of this Agreement (or the corresponding Order Form), shall be void and of no effect. Notwithstanding anything to the contrary contained herein, Company may modify this Agreement at any time by posting a revised version at https://fragment.fit/terms-of-use, which modifications will become effective 10 days following the day in which they were reposted. Customer’s continued use of the Service thereafter means that Customer has accepted those changes.

No Waiver

The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach shall not be deemed a waiver by that Party as to subsequent enforcement or actions in the event of future breaches. Any waiver granted hereunder must be in writing.

Severity

If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect, and such provision shall be reformed only to the extent necessary to make it enforceable.

Government Use

Any use of the Service by an agency, department, or other entity of the United States government shall be governed solely by the terms of this Agreement.

Publicity

Customer hereby agrees that: (i) Company may use Customer’s name and logo to identify Customer as a customer of Company or user of the Service, on Company’s website, presentations, marketing materials or otherwise; and (ii) Customer, to the extent requested by Company, shall use commercially reasonable efforts to positively address communications it receives from Company’s potential customers. In addition, Customer will cooperate with Company to create a quote/case study that will be published on the Company website. Following the termination of this Agreement, Customer may request Company to remove such customer reference.

Assignment

Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, this Agreement may be assigned by either Party in connection with a merger, consolidation, sale of all of the equity interests of such Party, or a sale of all or substantially all of the assets of the Party to which this Agreement relates. Without derogating from and subject to the abovementioned, this Agreement will bind and benefit each Party and its respective successors and assigns.

Governing Law; Arbitration

This Agreement shall be governed by and construed in accordance with the laws of the State of Israel, without regard to principles of conflicts of law. The competent courts of Tel Aviv, Israel shall have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement. The Parties expressly waive any right to a jury trial regarding disputes related to this Agreement. Notwithstanding the foregoing, each Party may seek equitable relief in any court of competent jurisdiction in order to protect its proprietary rights.

No Agency; No Third Parties

This Agreement does not, and shall not be construed to, create any relationship, partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between the Parties. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party. Except as stated otherwise herein, this Agreement is for the sole benefit of the Parties hereto, and nothing herein, express or implied, shall give, or be construed to give, any rights hereunder to any other person.

Force Majeure

Company will not be liable for any delay or failure to provide the Service resulting from circumstances or causes beyond the reasonable control of Company, including, but not to on account of strikes, shortages, riots, insurrection, fires, flood, storms, explosions, acts of God, war, government or quasi-governmental authorities actions, riot, acts of terrorism, earthquakes, explosions, power outages, pandemic or epidemic (or similar regional health crisis), or any other cause that is beyond the reasonable control of Company.

Notices

Notices to either Party shall be deemed given: (a) 4 business days after being mailed by airmail, postage prepaid; (b) the same business day, if dispatched by facsimile or electronic mail before 13:00 hour (local time for the receiving Party) and sender receives acknowledgment of receipt; or (c) the next business day, if dispatched by facsimile or electronic mail after the hour 13:00 (local time for the receiving Party) and sender receives acknowledgment of receipt.