Terms & Conditions
These Terms & Conditions ("T&Cs") are entered by and between Walnut Ltd. ("Walnut") and the customer identified on the price proposal referencing these T&Cs ("Customer" and "Proposal", respectively) as of the Effective Date set forth in the Proposal ("Effective Date"). These T&Cs, together with the Proposal (collectively, the "Agreement"), set forth the terms under which the Customer may use Walnut's platform for management of sales demos ("Platform") and the services provided thereon ("Services").
In the event of a conflict between the Proposal and these T&Cs, the provisions of the Proposal shall prevail to the extent of such conflict.
- Services. During the Term (as defined below) and subject to the terms and conditions hereof, Walnut shall provide Customer with a limited, revocable, non-exclusive, non-transferrable right to use the Platform and Services, solely for Customer's own internal business purposes.
- Customer may designate certain of its personnel ("Authorized Users") to have access to the Customer's account on the Platform. In order to access the Platform and Services, each Authorized User will be required to register an Authorized User account to be linked to the Customer's account. One of the Customer's Authorized Users shall be designated as an "administrator" and shall be able to add and remove Authorized Users and shall have access to certain features or Services that are not available to the Customer's other Authorized Users. Use of the Platform and Services by Authorized Users will be subject to Walnut's Terms of Service and Privacy Notice, as may available within the Platform from time to time.
- During the Term, Customer may register accounts for up to the total maximum number of Authorized Users set forth in the Proposal. To the extent that the Customer provides any personal data to Walnut as part of the process of registration of Authorized Users, Customer represents that (i) it has obtained all necessary consents required under applicable law to provide such personal data to Walnut and to allow Walnut to process and share such data for the provision of the Services, and (ii) it shall ensure that a record of such consents is maintained, all as required under applicable law.
- Customer undertakes to notify Walnut immediately in the case of any unauthorized use of an Authorized User's account or password. Customer shall be fully and solely responsible for the security of any computer system and/or mobile device used by any Authorized User and all activity on any Authorized User's account, even if such activities were not committed by the Authorized User. Walnut will not be liable for any losses or damage arising from unauthorized use of the Services, and Customer agrees to indemnify and hold Walnut harmless for any unauthorized, improper or illegal use of Authorized User accounts and any charges and taxes incurred, unless Customer has notified Walnut via e-mail that the relevant account has been compromised and has requested that access to it be blocked.
- Restrictions. Customer shall not and shall not allow any Authorized User or any third party to (attempt) to (a) decipher, decompile, disassemble, or reverse-engineer any of the software used to provide the Platform and/or Services; (b) circumvent, disable, or otherwise interfere with features of the Platform and/or Services related to security or access; (c) use any robot, spider, search or retrieval application, or any other manual or automatic device or process to retrieve, index, data-mine, or in any way reproduce or circumvent the navigational structure or presentation of the Platform and/or Services; (d) harvest, collect or mine information about users of the Platform and Services; or (e) use or access other user's account or password without permission. Except as expressly permitted herein, Customer may not and may not allow any third party to copy, modify, duplicate, distribute, display, perform, sublicense, republish, retransmit, reproduce, create derivative works of, transfer, sell, further develop, download, or otherwise use the Platform, Services or any content thereon or use the Platform, Services, or content thereon in any manner not permitted by this Agreement. Customer will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in the Platform or Services.
- Consideration. In consideration of the use of the Platform and the Services, Customer shall pay Walnut the applicable fees set forth in the Proposal ("Fees") in accordance with the payment terms set forth therein.
Representations and Warranties
- Mutual Representations. Each party hereto represents and warrants that (a) it is a company duly organized under applicable law, (b) it has the authority to enter into this Agreement; and (c) the execution and performance of this Agreement does not conflict with any contractual obligations it has to any third party or legal requirement.
- Walnut Representations. Walnut further represents and warrants that it will use commercially reasonable efforts to provide the Services faithfully, diligently, and with skill and ability in accordance with industry standard.
- Customer Representations. Customer further represents and warrants that (a) it shall at all times use the Platform and Services in compliance with applicable law; (b) it has all right, license and consent required under applicable law to provide Walnut with the Customer Materials (as defined below); and (c) any materials that it provides, including in the Customer Materials do not and will not infringe the intellectual property, privacy, publicity, moral, or any other rights of any third party and Walnut's use thereof in accordance with the terms of this Agreement does not and will not infringe upon any third party's right.
Intellectual Property Ownership.
- Walnut IP. Walnut and its licensors, as the case may be, own all rights, title, and interest in the Platform and Services and all software and technical innovations that provide them, as well as in all modifications, enhancements, and updates thereto and all worldwide intellectual property rights, and the trademarks, service marks, and logos contained therein, whether registered and unregistered ("Walnut IP"). Customer may not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in the Platform or other materials, if any. All trademarks are trademarks or registered trademarks of their respective owners. Nothing in this Agreement grants Customer any right to use any trademark, service mark, logo, or trade name of Walnut or any third party. Nothing in this Agreement shall be interpreted to provide Customer with any rights in the Walnut IP, the Platform or Services except the limited right to use the Platform and to receive the Services subject to the terms and conditions hereof. During the Term, Customer may provide Walnut with feedback regarding the Platform and Services, which Walnut may use in any manner it deems appropriate, including for commercial purposes and as part of improved and/or future Services. Walnut shall not be subject to any non-disclosure or non-use obligations in respect of such feedback.
- Customer IP. Any content created or provided by Customer through the Platform, including any demos created through the Platform, excluding the Walnut IP ("Customer Materials") shall be the sole property of the Customer.
- IP License. Customer hereby grants Walnut and its successors and assignees a perpetual, irrevocable, transferrable, worldwide, royalty-free, fully paid-up and non-exclusive license under any of Customer's intellectual property, moral or privacy rights to use, copy, distribute, display, modify and create derivative works of any Customer Materials for the provision of the Services and for improvement of the Services and the Platform, in accordance with the terms of this Agreement.
- Each party (each, a "Recipient") may have access to certain non-public or proprietary information of the other party (each, a "Disclosing Party") including any technical or non-technical information related to the other party's business and current, future and proposed products, services, and (prospective) customers in each case whether or not specifically designated as "confidential" or "proprietary" ("Confidential Information"). The terms of this Agreement and any feedback Customer may provide Walnut with regard to the Platform and/or Services shall be considered the Confidential Information of Walnut.
- Nondisclosure Obligations. Except as permitted herein, Recipient may not use, disseminate, or in any way disclose the Confidential Information except for purposes of providing or receiving the Services or in furtherance of the relationship of the parties hereunder. Recipient may use the Confidential Information solely for the purposes set out in this M Agreement OU. Recipient shall treat all Confidential Information with the same degree of care as it accords to its own Confidential Information but in any event with a high degree of care. Recipient shall disclose Confidential Information only to those of its employees or representatives who have a need to know the information in order for Recipient to perform its obligations under this Agreement and which are bound by non-disclosure and non-use obligations no less restrictive than those set out herein. Without derogating from the aforesaid, Recipient shall bear full responsibility for any harm caused to Disclosing Party by disclosure to its employees or representatives. The obligations set forth in this section shall survive termination of this Agreement for any reason.
- Exclusions. Recipient's obligations hereunder do not apply to any Confidential Information that Recipient can demonstrate by written records (a) was in the public domain at or subsequent to the time the Confidential Information and was received by Recipient through no act or omission of Recipient; (b) was rightfully in Recipient's possession free of any obligation of confidence at or subsequent to the time the Confidential Information was communicated to Recipient by Disclosing Party; or (c) was independently developed by Recipient without use of, or reference to, any Confidential Information. A disclosure of any Confidential Information by Recipient in response to a law, regulation, or governmental or judicial order ("Order") will not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, that Recipient, to the extent permitted by such Order (a) provides prompt prior written notice thereof to Disclosing Party of such Order; (b) reasonably cooperates with Disclosing Party in opposing such disclosure, (c) only discloses to extent required by such Order.
- Data Retention. Customer acknowledges and agrees that Walnut is not a data retention service. Customer must create backups of its data, and Walnut shall have no responsibility or liability in respect of any loss off or damage to any Customer data, including but not limited Customer Material.
- Walnut shall defend, indemnify and hold harmless Customer (and its officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys' legal fees) that Customer may suffer or incur in connection with any actual or threatened claim, demand, action or other proceeding by any third party arising from or relating to a claim that the Platform infringes any patent or copyright or misappropriates any trade secret, provided however, that Walnut shall have no responsibility or liability for any claim to the extent resulting from or arising out of (a) the use of the Platform not in compliance with this Agreement or applicable law; (b) the combination of the Platform with any services not provided by Walnut; (c) the modification of the Platform by any party other than Walnut; or (d) the use of any version of the Platform that is not the most up-to-date version.
- Customer shall defend, indemnify and hold harmless Walnut (and its officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys' legal fees) that Walnut may suffer or incur in connection with any actual or threatened claim, demand, action or other proceeding by any third party arising from or relating to (i) any breach of this Agreement by the Customer, its Authorized Users, or anyone on its behalf; (ii) use or misuse of the Platform and/or Services by the Customer or any of its Authorized Users; or (iii) infringement of a third party's intellectual property or other rights, including but not limited to materials included in the Customer Materials..
- Either party claiming indemnification under this Section 9 ("Indemnitee") shall: (i) provide the other party ("Indemnifying Party") with written notice of a claim promptly upon becoming aware thereof, (ii) allow Indemnifying Party to control the defense and settlement of the claim, provided that no settlement may be entered into without the consent of Indemnitee if such settlement would require any action on the part of Indemnitee and further provided that Indemnitee may engage its own counsel at its own expense; and (iii) reasonably cooperate with Indemnifying Party, at Indemnifying Party's expense, in the defense and settlement of the claim.
DISCLAIMER OF WARRANTY. THE PLATFORM AND SERVICES ARE PROVIDED ON AN "AS-IS" AND "AS AVAILABLE" BASIS. WALNUT EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS IN RESPECT OF THE PLATFORM AND SERVICES INCLUDING, WITHOUT LIMITATION, EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
LIMITATION OF LIABILITY. IN NO EVENT SHALL WALNUT OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONSULTANTS HAVE ANY LIABILITY FOR ANY CONSEQUENTIAL, INDIRECT, DIRECT, SPECIAL OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATING TO THE PLATFORM AND SERVICES OR THE ARRANGEMENTS CONTEMPLATED HEREIN, INCLUDING IN RESPECT OF LOST PROFITS, LOST BUSINESS OPPORTUNITIES, OR LOST DATA. WALNUT'S MAXIMUM CUMULATIVE LIABILITY UNDER THIS AGREEMENT AND/OR ANY CAUSE OF ACTION IS LIMITED TO FEES ACTUALLY RECEIVED BY WALNUT FROM THE CUSTOMER IN RESPECT OF THE TWELVE (12) MONTHS IMMEDITALY PRECEDING THE CLAIM OR CAUSE OF ACTION. AS SUCH, IF CUSTOMER HAS MADE NO PAYMENTS DURING THE TERM, WALNUT SHALL HAVE NO LIABILITY IN RESPECT THEREOF.
Term and Termination
- This Agreement will be in effect as of the Effective Date identified in the Proposal through the term identified therein ("Term") unless terminated by either party in accordance with the provision hereof.
- Notwithstanding the above, this MO Agreement U may be terminated as follows: (i) either party may terminate this Agreement by providing seven (7) days prior written notice to the other party, in the case of breach by the other party; (ii), either party may terminate this Agreement with immediate effect upon written notice to the other party, in the event the other party: (i) makes a general assignment for the benefit of its creditors; (ii) applies for, consents to, or acquiesces to the appointment of a receiver, trustee, custodian, or liquidator for its business or assets; (iii) files, or consents to or acquiesces in, a petition seeking relief or reorganization under any bankruptcy or insolvency laws.
- Upon the expiration or termination of this Agreement for any reason, Walnut shall terminate Customer's Authorized Users' accounts and, other than as set forth below, Customer's Authorized Users shall have no further access to the Platform or Services or content available thereon and all Authorized Users shall delete the Platform from any devices on which they have been installed.
- Sections 3 and 5-11, 12.3, 12.4, and 14 shall survive the expiration or termination of this Agreement for any reason.
- During the Term, Walnut may refer to Customer as a customer of Walnut, including by displaying Customer's name and logo on Walnut's website and other marketing materials.
- Force Majeure. Neither party will be liable for any default or delay in its performance of its obligations under this Agreement to the extent caused by, and only for the duration of, a natural disaster, act of God, act of war or terrorism, riot, third-party labor strike, pandemic or other similar occurrence beyond its reasonable control provided that the affected party make all reasonable efforts to comply with its obligations despite the occurrence. The party affected by any such occurrence shall, as soon as reasonably practicable, notify the other party of the occurrence and its expected duration and impact on such affected party’s performance. It is clarified that noncompliance with payment obligations may be delayed but will not be excused.
This Agreement sets forth the entire agreement between the parties regarding the subject matter hereof and supersedes all other agreements or understandings between the parties regarding such matters. No amendments or waivers shall be effective unless in writing and executed by both parties. Walnut may assign all of its rights and obligations under this Agreement to a purchaser of all or substantially all of Walnut's assets or share capital. Customer may not assign any rights or obligations under this Agreement to any third party and assignments in violation of the foregoing shall be void. Nothing in this Agreement creates any agency, employment, joint venture, or partnership relationship between the parties. This Agreement shall be governed by the laws of the State of Israel without regard to conflicts of law provisions thereof. The parties agree that the competent courts in Israel shall have exclusive jurisdiction regarding all disputes hereunder, and the parties expressly consent to such jurisdiction. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, such part shall be interpreted to give maximum effect to its terms as possible under applicable law, and the remainder of this Agreement shall remain in effect.