1. TERMS AND CONDITIONS
These Standard Terms and Conditions (“T&C’s”) and any attachments are the sole agreement between Zuk Motion Systems and Components Ltd. (“Zuk”) and Seller with respect to the goods (“Goods”) and /or services (“Services”) specified herein. No other documents, including Seller’s proposals, invoices, quotations or acknowledgements become part of this Order unless approved in writing by Zuk.
2. FINANCIAL TERMS
2.1 Taxes. Zuk shall pay or reimburse Supplier for Value Added Tax. Zuk shall not pay or reimburse Supplier for any taxes which are statutorily imposed on Supplier including but not limited to, taxes imposed on Supplier’s income. If Zuk is required by law to make any deduction or to withhold from any sum payable hereunder, then the sum payable by Zuk upon which the deduction is based shall be paid to Supplier net of such legally required deduction or withholding.
2.2 Invoice Submission. No invoice can be dated prior to the date Products and/or Services are delivered to Zuk or a Customer, unless the SOW or other exhibit to the Agreement sets forth acceptance criteria, in which case no invoice can be dated prior to acceptance by Zuk. Supplier agrees to invoice Zuk within the period set forth in Zuk’s Supplier account form (the “Account Form”) after it has the right to invoice under the terms of the Agreement. In no event may Supplier submit invoices, or any corrections thereof, later than one hundred fifty (150) days after the date which an invoice may first be submitted and such timely submission is a pre-condition to any Zuk payment obligation. Each invoice will be submitted to the address set forth in the Purchase Order or as otherwise instructed by Zuk when electronic invoicing applies.
2.3 Payment Terms. Zuk will initiate payment in the period agreed in the Account Form after the end of the month that it received a valid invoice in conformance with these T&C’s. Payment will be in New Israeli Shekels (NIS) currency unless otherwise stated. Payment will not constitute acceptance of Products and/or Services or impair Zuk’s right to inspect. Acceptance shall be when Zuk deems the Products and/or Services to meet its specified criteria (“Acceptance”). Zuk, at its option, and without prior notice to Supplier, shall have the right to setoff or deduct from any Supplier’s invoice, any credits, refunds or claims of any kind due to Zuk.
2.4 Invoice Requirements. Regardless of the method used to transmit an invoice to Zuk, a conforming invoice minimally includes: (i) Supplier’s name and invoice date, (ii) the specific Purchase Order number if applicable, (iii) description price, and quantity of the Products and/or Services actually delivered or rendered, (iv) credits (if applicable), (v) name contact details, and (vi) other substantiating documentation or information as may reasonably be required by Zuk from time to time. Supplier agrees to separately identify on the invoice the taxable and non-taxable purchases, the types of tax, the applicable tax rate, the amount of tax charged and the taxing authorities.
2.5 Changes. Upon notice to Supplier, Zuk may change any requirement in a SOW relating to undelivered Services or Deliverables. If such change affects the price or schedule, the Supplier will promptly advise Zuk of any changes that it deems necessary, the parties will promptly negotiate an equitable charge and amend the SOW. Zuk will have no obligation to Supplier for any unauthorized changes to a SOW.
3. RIGHTS GRANTED – SUPPLIER SOFTWARE
3.1 Ownership. Supplier hereby reserves all rights to the Supplier Software, and any copyrights, patents, or trademarks, embodied therein or used in connection therewith, except for the rights expressly granted herein. Neither party is granted any ownership in or license to the trademarks, marks or trade names of the other party.
3.2 Internal Use License Grant. Supplier hereby grants to Zuk an irrevocable, fully paid up, non-exclusive, royalty free, worldwide perpetual license to use, modify, reproduce, and disclose the Supplier Software solely for Internal Use.
3.3 Trade Use License Grant. Supplier hereby grants to Zuk, a non-exclusive, license to display and distribute the Supplier Software to Customers worldwide for such Customer’s use. In addition, Supplier hereby grants to Zuk, and Zuk’s third party service providers, the right to use the Supplier Software distributed by Zuk and licensed by a Customer when providing Outsourcing Services, consulting, integration, support or other services to such Customer, including installation or integration of the Supplier Software with software or hardware products at Zuk’s, Customer’s or a third party service provider’s location, or when providing an integrated solution to such Customer.
3.4 Transfer Obligations Applicable to Trade Use License Grants. Zuk’s sole responsibility with respect to the distribution rights granted herein shall be to distribute the Supplier Software in the form supplied by Supplier which may be either of the following:
(a) Shrink-wrap or Click-wrap License Agreements. Supplier acknowledges it has sole responsibility for including a shrinkwrap or click-wrap software license agreement with the Supplier Software. Supplier’s current form of shrink-wrap or click¬wrap software license shall be provided as an attachment to the Software Addendum. Zuk shall have no responsibility or liability with respect to the sufficiency of, or enforcement of, Supplier’s shrink-wrap or click-wrap software license agreement or Support and Maintenance agreement with the Customer. Supplier will notify Zuk promptly of any changes to its shrink-wrap or click-wrap software license terms and provide a copy thereof to Zuk. However, Supplier retains sole responsibility for including such updated license terms with the Supplier Software.
(b) Customer Executed License Agreements. If Supplier requires Customer to sign an end user license agreement, such end user license agreement shall be executed by and between Customer and Supplier. Supplier is responsible for ensuring that end user license agreements are signed and in place prior to Supplier’s delivery of the Supplier Software to Zuk or Customer. Supplier will notify Zuk in writing when the end user license agreement for a Customer has been executed and the Supplier Software is ready to ship. Supplier is responsible for conducting, on a timely basis, any and all negotiations on the terms of Supplier’s end user license agreement directly with Customer. Zuk will direct comments or questions regarding the end user license agreement to Supplier. Supplier’s current end user license agreement will be provided as an attachment to the Software Addendum.
3.5 Trade Use License Grant for Outsourcing Services. Supplier hereby grants to Zuk, and Zuk’s third party service providers a perpetual worldwide, non-exclusive, irrevocable, license, to install, operate, and use the Supplier Software in providing Outsourcing Services to Customers, from Zuk or its third party service provider’s data center(s) or at the Customer’s designated location(s). The foregoing shall be permissible regardless of any conflicting provision(s) in the end user license agreement which provide otherwise.
3.6 Additional Outsourcing Services Terms.
(a) Password Provision. When providing Supplier Software that contains a password, license key or similar device that would prevent Zuk from exercising its rights pursuant to the Agreement, Supplier will provide Zuk with a master password, license key or a similar device that would allow Zuk’s continued use of the Supplier Software pursuant to the terms and conditions of the Agreement
(b) License Assignment to Customer. At no additional charge to Zuk or its Customer, Zuk may, at its sole discretion, assign the Supplier Software license(s) to the Customer during, or upon termination of, Zuk’s provision of Outsourcing Services to the Customer.
3.7 No Third-Party License Obligations. Supplier will identify in the Software Addendum any Open Source or freeware contained in each Supplier Software and the corresponding third-party licenses for purposes of Zuk internal review. To the extent any third party materials are contained in a Supplier Software, Supplier agrees that each such Supplier Software will comply with the third party licenses and that Zuk’s distribution of such Supplier Software, as provided by Supplier, will not be in conflict with any third party license requirements and will satisfy all conditions on use, modification or distribution of such third party materials without the need for any additional, unanticipated action or license fees on Zuk’s part.
3.8 Notification Rights. Supplier will promptly inform Zuk in writing each time Supplier engages an investment banker to begin a process to, or otherwise begins on its own behalf a process to, solicit offers to enter into a sale of all or substantially all of the Supplier’s assets or equity (including by way of merger) (each such offer, an “Acquisition Offer”), and Zuk will have the right to participate in any such process on substantially the same terms as those potential acquirers who are solicited as part of such process. Additionally, if Supplier receives an unsolicited Acquisition Offer in writing (which Acquisition Offer need not by its terms be binding), Supplier will provide prompt written notice to Zuk of the material terms of such Acquisition Offer. Supplier shall then in good faith consider any Acquisition Offer submitted by Zuk to Supplier in writing within seven (7) days of the written notice provided by Supplier (it being understood that Supplier may, in its discretion, proceed with any such Acquisition Offer, or no Acquisition Offer at all). Notwithstanding any conflicting provision of the Agreement, any and all obligations under this section shall terminate and be of no further force and effect on such date as the Agreement expires or is otherwise terminated as provided herein.
3.9 Restrictions. Zuk agrees that it will not disassemble, decompile or otherwise convert the Supplier Software object code to human readable form. Zuk agrees that it will not intentionally remove any copyright notices, proprietary markings, trademarks or trade names from the Supplier Software or documentation. Although the Supplier Software source code may contain confidential and trade secret information of Supplier, the Supplier Software in object code format and related documentation are deemed non-confidential and Zuk is not under any obligation to restrict access to or use of the Supplier Software or related documentation, except as otherwise provided in this Section.
3.10 Back-Up, Archive, Failover and Transfer. Zuk may, at no additional charge, transfer the Supplier Software to substitute, back¬up or replacement computer systems, provided that Zuk removes any such Supplier Software from the computer system in which the Supplier Software was previously installed. Zuk may, at no additional charge make copies or adaptations of the Supplier Software for archival and back-up purposes. Zuk shall have the right, at no additional charge, to maintain a failover copy of any Supplier Software on one or more redundant computer systems. Such failover Supplier Software shall be available to immediately initiate a process or application in the event that the primary computer system fails for any reason. The foregoing shall be permissible regardless of any conflicting provision(s) in the end user license agreement which provide otherwise.
3.11 Support and Maintenance. The Agreement and the licenses provided are not contingent upon Zuk’s entry into a Support and Maintenance relationship with Supplier. In the event that Zuk elects to receive Support and Maintenance, Supplier shall provide such Support and Maintenance as set forth in the Software Addendum. Unless otherwise agreed to in writing, all Support and Maintenance for the Supplier Software used or distributed by Zuk will be Supplier’s responsibility.
4. CONFIDENTIAL INFORMATION
4.1 Confidential Information. “Confidential Information” means any information or data disclosed that (i) is marked at the time of disclosure as proprietary or confidential, (ii) is concerning or related to Zuk’s or Customer’s products (including the discovery, invention, research, improvement, plans, roadmaps, development, manufacture, or sale thereof), processes, or general business operations (including sales costs, profits, pricing methods, organization, and employee lists), and any information obtained through access to any Zuk Information Systems, Zuk or Customer technical data, Zuk or Customer’s customers, the Agreement, any and all pricing information whether or not in the Agreement, (iii) is or concerns any Customer provided information; or (iv) if orally disclosed, is identified at the time of disclosure as proprietary or confidential and/or is described as such in a written summary delivered to the receiving party within thirty (30) days of disclosure.
4.2 Confidential Information Obligations. Supplier will protect, and will ensure its Personnel protect, Confidential Information to prevent the unauthorized use, dissemination, disclosure or publication of Confidential Information. Supplier may disclose Confidential Information only to those of its Personnel who have a need to know and who are under an obligation of confidentiality at least as restrictive as that contained herein. Each such recipient of Confidential Information will be advised of the Supplier’s obligations under the Agreement. Confidential Information received may be used only to fulfill the purposes of the Agreement. If the Supplier or any of its Affiliates is requested or required by subpoena, court order, or similar process or applicable governmental regulation to disclose any Confidential Information, the receiving party will provide Zuk with prompt notice of such request or obligation so that Zuk may seek an appropriate protective order or procedure if it elects to do so. Obligations regarding Confidential Information will survive termination of the Agreement and survive perpetually.
4.3 Exclusions. The foregoing confidentiality obligations will not apply to Confidential Information that: (i) is already known to Supplier prior to disclosure; (ii) is or becomes a matter of public knowledge through no fault or breach on the part of Supplier; (iii) is rightfully received without a duty of confidentiality from a third party who has the right to transfer or disclose it; (iv) is independently developed by Supplier without the use of any Zuk Confidential Information; (v) is disclosed under operation of law; or (vi) is disclosed by Supplier with the prior written approval of Zuk. The parties have the right to provide information, pertinent to tax filings, claims, reviews, and audits, to taxing authorities and advisors, without notification to or approval by, the other party.
4.4 Access to Information Systems. Access, if any, to Zuk’s or Customer’s Information Systems is granted solely to provide the Services and/or Deliverables and is limited to those specific Zuk or Customer Information Systems, access locations, time periods and personnel as are separately agreed to by Zuk and Supplier from time to time. Zuk or Customer may require Supplier’s employees, Subcontractors or agents to sign individual agreements prior to access to Zuk’s or Customer’s Information Systems. Access is subject to Zuk and/or Customer business control and information protection policies, standards and guidelines as may be modified from time to time. Supplier agrees to access Information Systems only from specific locations approved for access by Zuk. For access outside of Zuk or Customer premises, Zuk will designate the specific network connections to be used to access Information Systems.
5. LIABILITY; INDEMNIFICATION; BREACH
5.1 Indirect Damages. Except as set forth below, neither party will be liable to the other for any special, indirect, or consequential damages of the other (including loss of data, profits or revenue, cost of capital or downtime costs), or for any exemplary or punitive damages, arising out of any performance of these T&C’s, regardless of whether such damages are based in tort, warranty, contract or any other legal theory, even if advised of the possibility of such damages. Notwithstanding the foregoing, any purported limitation or waiver of liability shall not apply to Supplier’s obligation under the indemnification or confidential information sections or either party’s liability to the other for personal injury or death caused by or arising by or from that party’s negligence or fraud.
5.2 Indemnification. Supplier will defend, indemnify, protect and hold harmless Zuk and its Customers from and against any and all third party claims, losses, liens, demands, attorneys’ fees, damages, liabilities, costs, expenses, obligations, causes of action, or suits, (collectively “Claims”) to the extent that such Claims are caused by (i) any negligent act or omission or willful misconduct of Supplier or its Personnel; (ii) the breach of the Agreement by Supplier or their Personnel (iii) property loss, damage, personal injury or death, sustained by Supplier or by any of Supplier’s or its Personnel, or (iv) any Claim that Intellectual Property provided by Supplier under the Agreement infringes or misappropriates any third party Intellectual Property Right.
5.3 Injunction Remedies. If the use of any Supplier Software, Deliverables or any part thereof alone or in combination with other equipment, software, method or service is enjoined, Supplier shall, at its sole expense and option: (i) procure for Zuk and Customer the right to continue using the Supplier Software and/or Deliverables; (ii) replace the Supplier Software and/or Deliverables with a non-infringing version of equivalent function and performance; or (iii) modify the Supplier Software and/or Deliverables to be non-infringing without detracting from function or performance. If one of the foregoing remedies are not reasonably available, Supplier shall promptly refund to Zuk all fees paid for the enjoined Supplier Software and/or Deliverables, reimburse Zuk for any costs incurred by Zuk as a result of such injunction, in addition to any other available remedies.
5.4 Exclusions. Notwithstanding the foregoing, Supplier will have no responsibility for Claims arising from unauthorized modifications of the Supplier Software and/or Deliverables made by Zuk, or use of the Supplier Software and/or Deliverables in combination with any equipment, software or services not provided by Supplier or Zuk, provided such IP Claim would not have arisen but for such modification or combination, provided such combination is not reasonably inferable from the nature of the Supplier Software and/or Deliverables, any SOW to the Agreement, any Software Addendum, or Supplier’s specifications, written designs or documentation.
5.5 Notice. Zuk will give Supplier prompt notice of any Claim. If Supplier assumes defense of such Claim without reservation of rights, Zuk will provide Supplier the authority, information and reasonable assistance (at Supplier’s expense) necessary to defend. Should Supplier not diligently pursue resolution of such Claim or fails to provide Zuk with reasonable assurance that it will diligently pursue resolution, then Zuk may, without in any way limiting its other rights and remedies, defend the Claim and collect all costs of doing so from Supplier. Any settlement or compromise Supplier desires to enter into will be subject to Zuk’s prior approval. Zuk and any other indemnitee may, in its or their discretion, participate in the defense of such Claim.
6. TERMINATION
6.1 Termination for Cause. Either party may terminate any SOW and/or Purchase Order(s) hereunder by written notice to the other if either party breaches (i) any provision of such SOW and/or Purchase Order(s), or (ii) any provision of the Agreement with respect to such SOW and/or Purchase Order(s) and in either case such breach is not cured within thirty (30) days or a lesser time if based on requirements of a Prime Agreement, after written notice thereof is received by the breaching party. Zuk can terminate the Agreement if Supplier is the subject of a merger or an acquisition or if Supplier assigns the Agreement to a third party without prior written agreement of Zuk.
6.2 Termination without Cause. Zuk reserves the right to terminate the Agreement or any SOW and/or Purchase Order(s) in whole or in part, without liability at any time, without cause, upon fourteen (14) days prior written notice to Supplier.
6.3 Effect of Termination. Upon termination of any SOW and/or Purchase Order(s), Supplier will immediately provide Zuk with all work in progress or completed prior to the termination date. As Zuk’s sole obligation to Supplier resulting from such termination, Zuk will pay Supplier an equitable amount as determined by Zuk for the partially completed work in progress and the agreed to price for the completed Services and/or Deliverables provided and accepted prior to the date of termination and the cost of any non-cancelable materials. Termination of the Agreement will occur without prejudice to any rights or legal proceedings available to the parties.
6.4 Effect of Termination – Supplier Software. Notwithstanding any termination or expiration of the Agreement, Zuk shall have the right to continue to use the Supplier Software subject to rights granted herein and to support existing Customer and all licenses granted to Zuk or Customers for use of the Supplier Software shall survive subject to the rights granted herein. Supplier will continue to provide Support and Maintenance to Zuk under the terms of the Agreement, so that Zuk may continue to support all existing Customers after termination or expiration of the Agreement.
6.5 Return of Materials. Upon termination of the Agreement or completion of Supplier’s performance under an SOW, whichever occurs first, Supplier shall promptly return to Zuk all materials and or tools provided by Zuk or Customer under the Agreement and all written Confidential Information provided by Zuk or Customer to Supplier.
7. SOW PROJECT TERMS
7.1 Inspections. Supplier will secure and pay for all licenses, permits and inspections necessary for completion of the Services.
7.2 Supplier Certifications and Training. Supplier certifies that Personnel are trained appropriately to perform the Services and, possess the necessary certifications and/or licenses to deliver the Services.
7.3 Performance to Schedule. Time is of the essence with respect to all Services and/or Deliverables hereunder.
7.4 Supplier Materials and Resources. Unless supplied by Zuk, the Customer, or other named third party, it is required that Supplier possess all necessary and appropriate written materials, software, equipment, tools, drawings or schematics, or any other material resources necessary to deliver the Services set forth in the SOW. Zuk will not provide any material resources or facilities, unless specifically identified in the SOW.
7.5 Hazardous Materials. If provision of Services involves the use, handling, maintaining, removal, transport, or other such actions related to hazardous materials, the Supplier will be responsible for such actions. Supplier must manage any and all hazardous materials in a safe and workmanlike manner, consistent with accepted industry standards and practices and, in accordance with any and all applicable local laws, codes, or regulations. Supplier will be responsible for the provision, maintaining, and currency of, any permits or licenses required and related to hazardous materials. Supplier shall conform to the requirements of EU RoHS (Restriction of Hazardous Substances) Directive, including without limitation, the 2015 amendment (Commission Delegated Directive (EU) 2015/863) which includes the following four additional materials, along with the maximum allowed amounts by weight in homogeneous materials: (i) Bis(2-ethylhexyl) phthalate (DEHP) (0,1 %) (CAS# 117-81-7), (ii) Butyl benzyl phthalate (BBP) (0,1 %) (CAS# 85-68-7); (iii) Dibutyl phthalate (DBP) (0,1 %) (CAS# 84-74-2), and (iv) Diisobutyl phthalate (DIBP) (0,1 %) (CAS# 84-69-5).
7.6 Personnel. All Personnel shall be subject to the direction, supervision, and control of Supplier. Supplier will be fully responsible for the acts and safety of Personnel while rendering Services to or for Zuk, its officers and employees. Supplier shall enforce strict discipline and good order among its Personnel and shall ensure that all Personnel comply with all applicable provisions of the Agreement. Supplier shall not employ Personnel unfit or unskilled in the work assigned to them. For the avoidance of doubt, Personnel are not employees of Zuk. Supplier shall provide for and be responsible to pay the compensation of its Personnel, allocations and shall pay all taxes, contributions, and benefits (such as, but not limited to, workers’ compensation benefits) which an employer is required to pay relating to the employment of employees under the Applicable Law, collective agreements, expansion decree, contractual obligations of Supplier under this Agreement, and any other agreement including employment agreement with Personnel and Supplier or its Subcontractor. Without derogating from the aforesaid generalities, the Supplier shall pay for Personnel pension pay, severance pay, vacation, sick pay, convalescence pay, National Insurance contributions, Keren-Hishtalmut (if agreed by the parties), travel fee, overtime fee, advance notice payment etc., and will affect all the payments due from it, including deductions, fully and in a timely manner including without limitation income tax, national insurance pay as well as health tax, meals and other benefit value. Zuk shall not be liable to Supplier or to its Personnel for Supplier’s failure to perform its compensation, benefit, or tax obligations. Supplier shall indemnify, defend and hold Zuk harmless from and against all such taxes, contributions and benefits and will comply with all associated governmental regulations, including the filing of all necessary reports and returns. In addition, Supplier hereby undertakes to indemnify and compensate Zuk for any expense, loss, damage and detriment incurred by it, including in consequence of any demand and/or claim of any of Personnel on the cause of employer-employee relations or in connection therewith.
7.7 Subcontractors. Supplier will not subcontract any Services and/or Deliverables to other persons or entities without the prior written approval of Zuk.
8. WARRANTIES
8.1 Intellectual Property Warranty. Supplier warrants that: (i) it has full power and authority to provide the Services to Zuk and to grant Zuk the rights granted herein, including the right to use, display and distribute each Supplier Software to the extent set forth in the Agreement; (ii) each Service, Supplier Software, and accompanying documents and/or Deliverables (if any) are free of any and all restrictions, settlements, judgments or adverse claims; (iii) it owns or has obtained valid licenses of all Intellectual Property Rights, consents or permissions in relation to all third party information or materials to enable it to perform its obligations under the Agreement and that there is no copyright, patent, or trade secret or other proprietary right of a third party that would be infringed or misappropriated by Zuk’s or Customer’s use of the Services, Supplier Software and/or any other intellectual property provided under the Agreement, (iv) Supplier has obtained all necessary licenses for Zuk and Zuk’s Customers to any third party materials (including without limitation, all Open Source and freeware licenses) included in each Supplier Software.
8.2 Services Warranty. Supplier warrants that (i) all Services will be performed by Supplier in a timely and professional manner, consistent with the standard of skill and care exercised by the best professionals within Supplier’s industry on projects of comparable scope and complexity, in a similar location, and in conformance with the requirements of the Agreement and in compliance with all laws, rules and regulations applicable to the performance of its obligations under the Agreement; (ii) Supplier is sufficiently experienced, properly qualified, registered, licensed, equipped, organized, and financed to perform its Services in compliance with the terms of the Agreement; (iii) it is under no obligation or restriction, nor will it assume any such obligation or restriction, which would in any way interfere with or be inconsistent with, or present a conflict of interest concerning, the provision of Services under the Agreement; (iv) the Services and/or Deliverables will be fit for the purpose specified in the Agreement; and (v) All materials and equipment supplied to Zuk, if any, and any associated workmanship, will be free from errors, faults, and defects and in conformance with the requirements of the Agreement for a period of twelve (12) months following completion of all Services. If any longer warranty is specified for any materials, equipment or workmanship under any plans or specifications, or under any subcontract, or in connection with any manufactured unit that is installed, the longer warranty period will govern. Supplier will ensure that all materials and equipment that carry a manufacturer’s warranty are registered with the manufacturer in Zuk’s name, as further provided in the Agreement.
8.3 Supplier Software Warranty. Supplier warrants that: (i) no Supplier Software will contain hidden files, viruses, “time bombs” or any code or function that operates to alter, damage or erase data or computer programs without control of the person operating the computing equipment on which the Supplier Software resides; (ii) the Supplier Software shall operate in conformance with the Supplier Software specifications and user documentation for a period of six months following acceptance of the Supplier Software by Zuk and receipt of any new version of the Supplier Software by Zuk.
8.4 Disclaimer. Except as expressly set out in these T&C’s, Supplier excludes any and all implied warranties, including, but not limited to, any implied warranty of satisfactory quality or fitness for a particular purpose to the extent permitted by law.
8.5 Remedy for Breach.
(a) In the event of a breach of Section 8.1 (Intellectual Property Warranty) Supplier shall be obligated to the requirements of Section 5.3 (Injunction Remedies).
(b) In the event of a breach of Section 8.2 (Services Warranty), Zuk may elect, at Zuk’s option (i) to exercise its rights under Section 6 (Termination), and/or (ii) to allow Supplier to immediately re-perform and/or replace any and all portions of the Services and/or Deliverables which Zuk or Customer find to be defective or non-conforming without charge to Zuk or Customer and/or (iii) agree a reduction in price in relation to the non-conforming Service and/or Deliverable.
(c) In the event of a breach of Section 8.3 (Supplier Software Warranty), Zuk may elect to exercise its rights under Section 6 (Termination) or allow Supplier to remedy any nonconformance with the Supplier Software warranty within ten (10) days following notification from Zuk. If Supplier is unable to remedy such nonconformance, Supplier agrees that Zuk may return the Supplier Software and Supplier shall promptly refund any monies paid for such Supplier Software in addition to any other remedies available to Zuk.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Retained Rights. Each Party will retain all right, title, and interest in and to its own Pre-Existing IP irrespective of any disclosure of such Pre-Existing IP to the other party, subject to any licenses granted herein.
9.2 Pre-Existing IP.
(a) Supplier will not use any Supplier or third-party Pre-Existing IP in connection with the Agreement unless Supplier has the right to use it for Zuk’s or Customer’s benefit. If Supplier is not the owner of such Pre-Existing IP, Supplier will obtain from the owner any rights as are necessary to enable Supplier to comply with the Agreement and for Zuk to comply with its agreement with its Customer.
(b) Supplier grants Zuk a non-exclusive, royalty-free, fully paid-up, worldwide, perpetual and irrevocable, transferable license in Supplier and third party Pre-Existing IP, to the extent such Pre-Existing IP is incorporated into a Deliverable, with the license including the right to make, have made, sell, offer for sale, use, represent, execute, reproduce, make copies, modify, improve, optimize, adapt, display, communicate, distribute, make other versions of and disclose all items it will supply or make available to Zuk and to sublicense others to do these things. Supplier represents and warrants that Supplier owns or holds all consents, authorizations, and rights that may be needed for Supplier to grant (or procure the grant of) in whatever country or region or under any legal system the license and rights of sub-section. Supplier represents warrants and undertakes that it shall not sue or seek to initiate any action against Zuk, or the Zuk group of companies under Supplier’s Intellectual Property Rights or similar proprietary rights anywhere in the world.
(c) Supplier will not incorporate any materials from a third party, including Open Source or freeware, into any Deliverable unless (i) Supplier clearly identifies the specific elements of the Deliverable to contain third party materials in the SOW, (ii) Supplier identifies the corresponding third party licenses and any restrictions on use thereof in the SOW, (iii) approval is given by Zuk as evidenced by a signed SOW (or other written and fully executed agreement) and (iv) in the case of Open Source materials, approval by Zuk shall include approval in accordance with Zuk’s Open Source review processes. Supplier represents and warrants that Supplier has complied and shall continue to comply with all third-party licenses (including all Open Source licenses) associated with any software components that will be included in the Deliverables or any other materials supplied by Supplier. Supplier shall indemnify Zuk against any losses and liability incurred by Zuk and Zuk’s Customers due to failure of Supplier to meet any of the requirements in any of the third-party licenses.
9.3 Ownership of Deliverables. Subject to Supplier and third-party rights in Pre-Existing IP, all Deliverables and all Intellectual Property Rights pertaining thereto will belong to Zuk, and Supplier hereby assigns such rights to Zuk. Supplier agrees that Zuk will own all patents, inventor’s certificates, utility models or other rights, copyrights or trade secrets covering the Deliverables and will have full rights to use the Deliverables without claim on the part of Supplier for additional compensation and without challenge, opposition or interference by Supplier. Supplier also waives any right of droit moral or any similar right with respect to the Deliverables and undertakes to sign up its employees and consultant of such a waiver. Supplier will sign any necessary documents and will otherwise assist Zuk, at Zuk’s expense, in securing, maintaining and defending copyrights or other rights to protect the Deliverables in any country. Supplier, its agents, employees, and Subcontractors will deliver the Deliverables to Zuk upon the earlier of the expiration/termination of the Agreement or Zuk’s request.
9.4 No Rights to Zuk Intellectual Property. Except for the limited license to use materials provided by Zuk as may be necessary in order for Supplier to perform Services under the Agreement, Supplier is granted no right, title, or interest in any Zuk Intellectual Property.
9.5 Irrevocable Undertaking. Supplier’s grant of rights and assignment of the ownership in Intellectual Property Rights in the Agreement is irrevocable and without right of termination or rescission by Supplier and any party on its behalf and shall not be affected by the termination or expiration of the Agreement.
10. INSURANCE
During performance of the SOW, Supplier will maintain in full force and effect, at Supplier’s expense, Workers’ Compensation insurance as required by any Applicable Law or regulation, having jurisdiction over Supplier’s employees. If Workers’ Compensation is through a Social Scheme, Supplier agrees to be in full compliance with such laws thereof. Supplier will maintain Employer’s Liability insurance in amounts not less than the local currency equivalent of $1,000,000 each accident for bodily injury by accident and $1,000,000 each employee for bodily injury by disease. Where permitted by law, such policies will contain a waiver of the insurer’s subrogation rights against Zuk, its Affiliates, officers, directors and employees. In addition, Supplier will maintain, at its expense, Comprehensive General Liability insurance. Such policy or policies limits shall be $1,000,000 per occurrence (combined single limit) or $1,000,000 each occurrence, $1,000,000 aggregate for products and completed operations, and $2,000,000 general aggregate). Supplier will maintain Automobile Liability Insurance to include coverage for liability, arising out of owned, hired and non-owned autos. The limit of liability shall not be less than $1,000,000 combined single limit for each accident. Each Comprehensive General Liability and Automobile Liability policy shall name Zuk, its Subsidiaries, officers, directors, and employees as additional insureds. It is agreed the insurance afforded such additional insureds shall apply as primary insurance and that any other insurance carried by Zuk shall be excess only and shall not contribute with this insurance. All policies shall provide that the coverage hereunder shall not be cancelled without at least thirty (30) days prior written notice to Zuk. If “claims made” policies are provided, Supplier shall maintain such policies, including unimpaired aggregate limits at the above stated minimums, for at least three years after the expiration of the Term. Upon demand by Zuk, Supplier shall promptly supply Zuk with certificates of insurance of such policies. In no event will the coverage or limits of any insurance maintained by Supplier under the Agreement, or the lack or unavailability of any other insurance, limit or diminish in any way Supplier’s obligations or liability to Zuk hereunder.
11. GENERAL PROVISIONS
11.1 Security Requirements. Supplier Personnel must at all times adhere to the Site security and safety requirements of Zuk and/or the Customer. Such requirements will be communicated by or provided to the Supplier by Zuk or will be specified in the SOW.
11.2 Compliance with Applicable Law. Supplier warrants that it will comply with all Applicable Law in its performance under the Agreement. Zuk will not be responsible for monitoring Supplier’s nor Subcontractor’s compliance with any Applicable Laws. Zuk and Supplier will comply with all applicable export, import and trade-related laws and regulations of the United States and other nations. Zuk advises Supplier that Zuk is subject to the Israel Anti-Bribery laws, US Foreign Corrupt Practices Act, the UK Bribery Act, as well as other global anti-corruption laws. Supplier agrees that it will not take any action which could cause Zuk to be in violation of any anti-corruption law or regulation. If Supplier becomes aware of any such violation, it will immediately notify Zuk.
11.3 Independent Contractors. Supplier will act solely as an independent contractor. Nothing contained herein will be construed to create the relationship of principal and agent, employer and employee, partners or joint venturers. In the event that the relationship between Zuk and Supplier and/or Supplier’s employees and contractors shall be claimed, regarded or determined by any third party, including any governmental and/or judicial and/or tax authority and/or the Personnel at any time hereafter as an employer-employee relationship, Supplier shall reimburse hold harmless and indemnify Zuk for any expense and/or payment incurred by Zuk or demanded of Zuk in consequence of the raising of such claim or demand and/or as a result of such determination, immediately upon Zuk’s first demand. Zuk shall be entitled to offset against any amount due to Supplier under any agreement between the parties the amounts to be paid to Zuk according to this clause.
11.4 Assignment. Notwithstanding anything to the contrary in the Agreement, neither party may, directly or indirectly, in whole or in part, neither by operation of law or otherwise, assign or transfer this Agreement or delegate any of its obligations under this agreement without the other party’s written consent. Any attempted assignment, transfer or delegation without such prior written consent will be void and unenforceable. Notwithstanding the foregoing, Zuk, or its permitted successive assignees or transferees, may assign or transfer this Agreement or delegate any rights or obligations hereunder without consent: (1) to any entity controlled by, or under common control with, Zuk, or its permitted successive assignees or transferees; or (2) in connection with a merger, reorganization, transfer, sale of all or some assets or product lines, or change of control or ownership of Zuk, or its permitted successive assignees or transferees. Without limiting the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
11.5 Non-Restrictive Relationship. Nothing in the Agreement shall be construed so as to preclude Zuk from independently developing or acquiring similar products or services that may perform the same or similar functions as the Services and/or Deliverables.
11.6 Notices. All notices required under the Agreement will be in writing and will be sent to the address of the recipient specified in the SOW. Any such notice may be delivered by hand, by overnight courier or by first class pre-paid letter, and will be deemed to have been received: (i) if delivered by hand – at the time of delivery; (ii) if delivered by overnight courier – 24 hours after the date of delivery to courier with evidence of delivery from the courier; (iii) if delivered by first class mail – three (3) business days after the date of mailing.
11.7 Publicity. Supplier shall not publicize or disclose the terms or existence of the Agreement, nor shall Supplier use the name(s), trademark(s), or tradename(s) of Zuk or its Affiliates, except as follows: (i) With the prior written consent of Zuk; or ii) as may be necessary for Supplier to perform its obligations under the Agreement; or iii) as may otherwise be required by law. Zuk may impose, as a condition of its consent, any restrictions which Zuk deems appropriate, in its sole discretion. Supplier shall provide 10 days written notice to Zuk prior to disclosure under subsections (ii) or (iii) above.
11.8 Waiver. Neither party’s failure to exercise or delay in exercising any of its rights under the Agreement shall constitute or be deemed to constitute a waiver, forfeiture, or modification of such rights. Waiver of a breach of the Agreement shall not be deemed a waiver of any future breach. Any waiver must be in writing and signed by each party’s representative.
11.9 Severability. If any term or provision of the Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of the Agreement shall not be affected. In such event, the parties will negotiate a valid, enforceable substitute provision that most nearly effects the parties’ original intent in entering into the Agreement or provide an equitable adjustment in the event no such provision can be added.
11.10 Surviving Provisions. The following sections shall survive the termination or expiration of the Agreement: Section 3 (Rights Granted – Supplier Software), Section 4 (Confidential Information), Section 5 (Liability), Section 5 (Indemnification-Breach), Section 6 (Termination), Section 8 (Warranties), Section 9 (Intellectual Property Rights), Section 10 (Insurance), Section 11 (General Provisions), any provision that by its language or context implies its survival, and all licenses granted to Zuk for Deliverables.
11.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements and representations whether oral or written. No supplement, modification or amendment of the Agreement will be binding unless in a writing which states that it is an amendment of the Agreement, and which is signed by an authorized representative of each party who is authorized to amend the Agreement. For purposes of the Agreement, a “writing” shall specifically exclude any click-wrap, shrink-wrap or similar terms which accompany the Supplier Software.
11.12 Audit. Zuk reserves the right to audit, inspect, and make copies or extracts of Supplier’s records and processes associated with Supplier’s performance under this Agreement including without limitation payments made by Supplier to/for Personnel, at any time with twenty-four hours prior notice to Supplier. Any audit or inspection will occur during Supplier’s normal business hours. Zuk’s right to audit, inspect, and make copies or extracts of Supplier’s records and processes shall continue for a period of five years following the termination or expiration of this Agreement. Without derogation the above, at the end of every year, Supplier shall submit, at Zuk’s request (i) an accountant authorization representing that Supplier’s employees working at Zuk were paid their salaries, and that the Supplier allocated the necessary funds required under the law and under this Agreement and Pension funds and (ii) a report from relevant insurance companies and pension funds representing that Supplier has allocated all necessary funds under section 11.13 (b) above and/or as otherwise prescribed by law. If an audit reveals a discrepancy of 3% percent or more during the audited period, then Supplier shall also reimburse Zuk for all costs of the audit, including without limitation and in addition to the costs of any third-party auditors engaged by Zuk.
11.13 Choice of Law. These T&C’s are governed by the laws of the State of Israel without giving effect to any choice of law rules, provided however, if Supplier is not situated in Israel, then the T&C will be governed by the laws of England and Wales. Supplier and Zuk expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement.
11.14 Jurisdiction. Any dispute arising from the interpretation and execution of the Agreement that parties cannot amicably settle are submitted to the exclusive jurisdiction of: (i) if these T&C’s are governed by the law of Israel, then the competent court of law of Tel Aviv, Israel, and (ii) if these T&C’s are governed by the laws of England and Wales, then competent court of law of London, England, including in each case, the cases of extraordinary, interlocutory, interim and emergency proceedings.
12. DEFINITIONS
12.1 “$” means United States dollars.
12.2 “Applicable Law” means all laws, statutes, ordinances, judgments, decrees, injunctions, regulations, permits and legally binding requirements of all national and local governmental authorities applicable to either party’s performance under the Agreement.
12.3 “Customer” means an Zuk customer to which Zuk has agreed to provide goods or services.
12.4 “Deliverables” means the tangible items to be provided by Supplier to Zuk or Customer(s) in satisfaction of Supplier’s obligations to Zuk pursuant to a SOW.
12.5 “Information Systems” means information systems including, but not limited to, net-services, computers, computer systems, communication systems and other information systems; and means of access to such systems including, but not limited to, passwords, tokens, keys, logon scripts or other authentication information.
12.6 “Intellectual Property Rights” or “Intellectual Property” means (without limitation) present and future patents, trademarks, registered designs (including any applications for the foregoing and related rights including rights of inventions) copyrights, unregistered design rights, database rights (including rights of extraction), rights in semiconductor topographies and all rights or forms of protection offered by intellectual property law of a similar nature or having equivalent or similar effect to any of them which may subsist anywhere in the world, such as service marks, mask works, design models, and utility models.
12.7 “Internal Use” means use on a worldwide basis by Zuk for internal information processing services and computing needs.
12.8 “Supplier Software” means Supplier’s software program(s), in object code only, listed and described in a Software Addendum, in all available versions, platforms, languages, and all associated documentation, bug fixes, updates, upgrades or new versions thereof provided, or required to be provided by the Agreement, to Zuk by Supplier.
12.9 “Open Source” means any software having license terms that require, as a condition of use, modification, or distribution of the software that such software or other software combined or distributed with such software be (i) disclosed or distributed in source code form, (ii) licensed for the purpose of making derivative works, or (iii) redistributable at no charge.
12.10 “Outsourcing Services” means a service whereby Zuk (i) assumes the responsibility for day-to-day operations and management of all or a portion of a Customer’s data processing operations; or (ii) performs facility management, systems integration or similar services; or (iii) hosts and delivers, or otherwise provisions, the Supplier Software to the Customer; or (iv) Zuk provides access to or use of the Supplier Software as a service; or (v) provides business process outsourcing services to the Customer; all regardless of whether the Supplier Software is located at the Customer’s site or a third party location or Zuk facility, is licensed by the Customer or by Zuk, and whether used on Customer, Zuk or third party owned equipment.
12.11 “Personnel” means workers employed or contracted by Supplier or its Subcontractors for the provision of Services and/or Deliverables to Zuk hereunder.
12.12 “Pre-Existing IP” means any Intellectual Property that has been conceived or developed by either party or any third party before Supplier renders any services under the Agreement or that is conceived or developed at any time wholly independently of the Deliverables.
12.13 “Product” means hardware and/or Supplier Software provided or to be provided by Supplier pursuant to the Agreement.
12.14 “Purchase Order” means a written (electronic, hardcopy or fax) PO issued by Zuk to Supplier referencing the Agreement.
12.15 “Services” means the services provided, or contracted to be provided, by Supplier as defined in an including any Deliverables or Support and Maintenance for Supplier Software as defined in a Software Addendum.
12.16 “Site” means any Zuk, third party, or Customer location where Services are to be provided.
12.17 “Software Addendum” means an attachment to the Agreement that describes the Supplier Software and Support and Maintenance (if required).
12.18 “SOW” means a document signed by Zuk and Supplier that describes the Services and/or Deliverables to be provided by Supplier to Zuk and related business terms.
12.19 “Subcontractor” means any and all third parties that have direct contracts with Supplier or with any other subcontractor to perform a portion of the Services under the Agreement.
12.20 “Support and Maintenance” means the support and maintenance terms for the Supplier Software that Supplier is required to provide as specified in the Software Addendum.
12.21 “Trade Use” means resale by Zuk to Customers, use by Zuk on behalf of Customers, use by Customers, and any related use by contractors performing services to Zuk or on its behalf to Customers.