Terms and Conditions

By accessing and using Oriient New Media’s Ltd. (hereinafter may be referred to as “Oriient” “we“, “us” or “our“) SDK and/or using our Services, you are indicating that you read the terms and conditions hereunder and that you agree to be bound by the terms and conditions hereunder, as updated from time to time.

Important Notice – make sure to carefully read this Terms and Conditions (the “Agreement“), which is a legally binding and an enforceable agreement between Oriient and you, a developer of software or applications (hereinafter referred to as “Client“, “you” or “your“).

You are further advised to take note of our End User Privacy Policy (available at: www.oriient.me/end-user-privacy-policy) (“End User Privacy Policy“), which is incorporated herein by reference and form an indivisible part of this Agreement. To the extent that there is a contradiction between our End User Privacy Policy and this Agreement, our End User Privacy Policy will prevail.

If you are entering into this Agreement on behalf of a legal entity, you represent and warrant that you are authorized to bind such legal entity to the terms and conditions of this Agreement, following which the terms used to describe you under this Agreement (such as “you” and/or “your”) shall be deemed to apply to the legal entity which you represent. If you are not authorized by the said legal entity to bind the said legal entity to the terms and conditions of this Agreement, you may not agree to the terms and conditions herein and you may not access our SDK and/or our Services. We recommend that you save a copy of this Agreement for your records.

You may not access our SDK and/or use our Services, if: (a) you are our direct competitor, except with our prior written consent; or (b) you accept this Agreement for purposes of analyzing and testing its availability, performance or functionality, or for any other competitive purposes.

BY CLICKING “SIGN UP” (OR SUCH OTHER SIMILAR LANGUAGE) AND/OR BY ACCESSING OUR SDK AND/OR USING OUR SERVICES, YOU ARE CONSENTING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND AGREE TO BE BOUND BY SUCH TERMS AND CONDITIONS, INCLUDING BUT WITHOUT LIMITATION, YOU CONFIRM THE COMPLETE CORRECTNESS AND APPROVAL OF THE REPRESENTATIONS AND WARRANTIES IN THE PARAGRAPH IMMEDIATELY ABOVE. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR TO ANY PART THEREIN AND/OR IF YOU ARE NOT ABLE TO FULLY CONFIRM THE WARRANTIES IN THE PARAGRAPH IMMEDIATELY ABOVE, YOU MAY NOT ACCESS OUR SDK AND/OR SERVICES AND YOU MAY NOT USE OUR SDK AND/OR SERVICES.

Oriient reserves the right to modify, discontinue or terminate the SDK and/or our Services or any part thereof, or to modify this Agreement at any time, without prior notice. Any update of this Agreement will be posted on our site at www.oriient.me/terms-and-conditions. In the event that the change to the Agreement shall be a material change, we may send you a notice of such change, but we are not obligated to do so. It is, however, your responsibility to review the Agreement from time-to-time to check for updates. By continuing your access and use of the SDK and/or our Services you are construed to have accepted and approved any change made to the Agreement immediately prior to such access and/or use. If you do not accept and/or approve any change to the Agreement at any time, you sole recourse would be to cease use of our SDK and/or our Services.

When you register to the use of our SDK and/or our Services we will provide you with a username and password, which will enable you to access your Account. In connection thereto, you agree: (a) to keep your password secure and confidential; (b) not to permit others to use your Account; (c) not to transfer or assign your Account’s password to a third party; (d) you are solely responsible for actions taken in your Account, and we will not be liable for any loss or damage arising from any unauthorized use of your Account or any other breach of security relating to the Account. On becoming aware of any unauthorized use and/or breach of your Account, you undertake to immediately and without delay notify us.

1. The following capitalized terms shall have the following meaning:

  1. Software” means all the following developed by Oriient: (a) Oriient’s indoor positioning software, the SDK including software implementations of algorithms, models, and methodologies, whether in source code, object code or other form, including libraries, subroutines and other components thereof; (b) computerized databases and other computerized compilations and collections of data or information, including all data and information included in such databases, compilations or collections; (c) web pages, dashboards, screens, user interfaces, command structures, report formats, templates, menus, buttons and icons; (d) descriptions, flow charts, architectures, development tools, and other materials used to design, plan, organize and develop any of the foregoing; and (e) all documentation, including development, diagnostic, support, user and training documentation related to any of the foregoing.
  2. Delivered Data” means an image, a map or a floorplan of a physical location from which the Service is accessed (each a “Location”), a 3D model of the Location and any related metadata, which Client transmits to the Oriient in connection with the use of the Service, other than Personal Data.
  3. Device Data” means (i) a mobile device specific identifier of a mobile device such as, but not limited to, UDID, iOS IDFA, and Android Advertising ID; (ii) a mobile device model information; and (iii) data about end users’ use of the Service; and (iii) location data.
  4. Collected Data” means the data, metadata, and other content that is first collected or generated by the Service. The Collected Data include, but is not limited to, sensor data collected by or generated in the Service, Device Data, data and metadata submitted to the Service and/or collected by the Software and location data generated by or in the Service but shall not include any data that constitute Personal Data.
  5. Claims” means claims, suits, demands and actions brought or tendered for defense or indemnification.
  6. Confidential Information” means non-public information of Oriient, regardless of the manner in which it is furnished, and which given the totality of the circumstances, a reasonable person or entity does or should have reason to believe is proprietary, confidential, or competitively sensitive, including, without limitation, business procedures, technology and any related documentation, client list, developments, business partners or other information disclosed by Oriient to you, either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment. Confidential Information shall not include information which you can demonstrate that: (a) was known to you or was in your possession at the time of disclosure without any confidentiality obligation; and/or (b) becomes publicly known and made generally available after disclosure by Oriient through no wrongful action or inaction on your part or any party acting on your behalf.
  7. Client’s Product” means mobile or other application software that is developed by, or licensed to a client, and which integrates the Software for purposes of using the Service.
  8. Intellectual Property Rights” – means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law and any and all other proprietary rights, as well as any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.
  9. Losses” means damages, losses, costs, and liabilities, including reasonable attorney and professional fees, arising from a Claim.
  10. Personal Data” means data relating to an identified or identifiable natural person and as otherwise defined under applicable laws.
  11. Prohibited Activity” means use of SDK and/or the Service in any activity that is or that encourages conduct that is or may be deemed as: (a) a criminal offense or could give rise to civil liability, or violates any applicable law, regulation or order of any court or tribunal; (b) adversely affecting public or private infrastructure or equipment; (c) infringing upon any third party right including without limitation, intellectual property rights, privacy rights or moral rights; and (d) using, endorsing or promoting content which may be reasonably deemed as adult content, vulgar, sexually explicit, obscene, profane, racist, offensive, harassing, threatening, infringing, excessively violent, libelous, gambling-related, or discriminatory activity, promotes illegal drugs or arms trafficking, counterfeiting money, violates export control laws, misleading or deceptive material, or is any type of malware or spyware.
  12. Services” means Oriient’s cloud based indoor positioning Services, which Oriient provides from its cloud-based servers to its clients.
  13. SDK” means the Software development kit licensed by Oriient to you for the purpose of providing the access to the Services, as embedded by you in Client’s Product.
  14. Users” mean the Client’s end users.
  15. Account” means a personal account designated to you in order to utilize and manage the Services that we offer under this Agreement, which includes, inter alia, your Client’s Product details and its performance, analytics, metadata and any other information or features that we may add, in our sole discretion.

2.  Our Responsibilities

Subject to the terms and conditions herein, we will make our SDK and/or our Services available to you, as listed in the Agreement hereunder. We use industry standard data security measures to maintain the security and confidentiality of the data and information that is part of your Account, but we do not and cannot guarantee that storage of any data relating to you, your Client’s Product and/or your Users, will be secured at all times, and we will not be responsible for any unauthorized access to or alteration to your and/or any other person’s data or information from or in connection with your Client’s Product and/or your Account.

3.  License Terms

  1. During the Term (as defined below), Oriient grants you a limited, revocable, non-exclusive, non-assignable, non-transferable, non-sub-licensable license solely for the limited purpose of enabling you to access the Service in your use of our SDK, as the applicable case may be, and in accordance with the our SDK implementation guidelines, provided by Oriient from time to time.
  2. During the Term, Oriient grants you a limited, non-exclusive, royalty-free license to use and display our trademarks, Services marks and logos (collectively, “Marks“), within your Client’s Product and strictly in accordance with the obligations and rights hereunder. All goodwill arising out of your use of any of the Marks shall inure solely to the benefit of Oriient.
  3. During the Term you hereby grant Oriient a non-exclusive, worldwide, perpetual, irrevocable right and license to: (i) access, collect, use, copy, assemble, compile, analyze, modify, transform, receive, transmit, and create derivative works of the Delivered Data; and (ii) use the Delivered Data for purposes of optimization, statistical analysis, and Services improvement carried out by us. You are responsible for and warrant that you have the right to deliver the Delivered Data to Oriient and to grant Oriient the rights provided hereunder.
  4. As between the parties: (a) Oriient retains all right, title and interest in and to the Software and Marks made available through your Client’s Product, including all Intellectual Property Rights therein and including in and to the Collected Data, which shall be used in accordance our End User Privacy Policy, as may be amended from time to time; and (b) you retain all right, title and interest in and to your Client’s Product, including all Intellectual Property Rights therein.
  5. The licenses granted under this Agreement are specifically set forth herein; there are no other express and/or implied rights. All rights not expressly granted to a party in this Agreement are reserved by the other party. Without limiting the generality of the foregoing, you acknowledge that the Software, and any part thereof, is commercially valuable and proprietary to Oriient, and you undertakes not to: (a) reverse engineer, decompile, disassemble, or otherwise reduce to human-perceivable form the Software’s source code, or part thereof; (b) modify, revise, enhance, or alter the Software; and (b) copy or allow copies of the Software to be made.

4.  Your Representations; Warranties and Obligations

  1. You represent and warrant, that: (a) you are duly and fully authorized to be bound by this Agreement and that all corporate authorizations and/or consents required in order to enter this Agreement, if any, have been duly obtained; (b) the execution and delivery of this Agreement, and your performance of your obligations hereunder, will not constitute a breach or default of or otherwise violate any agreement to which you are a party or any of your affiliates are a party or violate any rights of any third parties arising therefrom; (c) you will not make any representations, warranties and/or guarantees with respect to the Software and Service and/or about us and/or on our behalf, nor will you bind us to any agreement, without our explicit and prior written approval; (d) you shall not use the SDK and/or Service for any Prohibited and/or Fraudulent Activity; and (e) Client’s Product is wholly owned by you and/or is validly and lawfully licensed to you, and does not infringe or violate any right of any person, including Intellectual Property rights. You hereby confirm that you have read and understood our End User Privacy Policy, and that nothing therein is contrary to your privacy policy.
  2. You represent and warrant that you: (a) are of a legal age according to the laws, rules and/or regulations applicable to you and of the country in which you reside or from which you access the Oriient SDK as set forth herein, and in any event are not under the age of 13; (c) are not currently restricted from using the SDK as set forth herein, or not otherwise prohibited from having an account with us; and (d) will only provide us with accurate information in connection with your use of the SDK as set forth herein.
  3. To the extent required by applicable law and/or industry best practices, you will include terms of service and privacy policy (“Client Terms“) within your Client’s Product that accurately and adequately describes your practices with respect to the functionality of your Client’s Product and how your (or any third party on your behalf) accesses, collects, uses, stores, and disclose the Collected Data, and you shall obtain all consents necessary from Users approving such accesses, collection, use, storage and disclosure, in full compliance with applicable law and/or industry best practice, and as and when required by such applicable law and/or custom industry best practice. You acknowledge and agrees that: (a) you are solely responsible for the compliance with your Client Terms; (b) your Client Terms will comply with all applicable laws, regulations and industry best practices in all countries where Users can access your Client’s Product, including without limitation, any applicable data protections laws and regulations; (c) you will not make any representations, warranties and agreements on behalf of Oriient in your Client Terms; and (d) your Client Terms are an agreement between you and the Users, and Oriient is not a party to that agreement. Furthermore, we will not be responsible for, nor have any liability with respect to: (i) any of your Client Terms; (ii) any agreement between your and a User or a User’s breach of your Client Terms; (iii) your failure to obtain valid Users’ consent to your Client Terms; or (iv) your failure to comply with the terms and conditions of your Client Terms.
  4. Your Client’s Software is not a mobile application or other online service directed to children, as defined under the Children’s Online Privacy Protection Act (“COPPA”), and (ii) you will not transmit any “Personal Information” (as defined under COPPA) about or relating to an individual under the age of 13 to the Service.
  5. You will not use or otherwise transport, export or re-export (directly or indirectly) the SDK and/or our Service into any country forbidden to receive the SDK and/or our Service by any U.S. or other jurisdictions’ export or technology laws or regulations or otherwise violate such laws or regulations, as may be amended from time to time. In particular, you represent and warrant that you will not use or otherwise transport, export or re-export the SDK and/or our Service to a country that is subject to a U.S. Government embargo or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce denied person’s list or entity list. You also represent and warrant that you are not located in any such country or on any such list.
  6. You acknowledge and agree to: (i) comply with any technical restrictions in the Service that allows you to use the Service only in certain ways; and (ii) we may collect and use comments, feedback, suggestions, and other information provided by you, if any, related to the Service and/or the Software and that we may use this information to improve and develop the Service and/or the Software; and (iii) we have no obligation to monitor, supervise or review your Client’s Product and/or the practices deployed by you, and Oriient is not and will not be responsible for any content appearing or otherwise distributed on, at or in association with your Client’s Product.

5.  Term And Termination

  1. This Agreement will commence on the first date on which you accept it, and will continue perpetually unless it is terminated as set forth herein (the “Term“). This Agreement may be terminated in accordance with any of the following provisions:
    1. Either party may terminate this Agreement upon a seven (7) day prior written notice, for any reason and without liability.
    2. We may terminate this Agreement immediately, if you: (i) breach any of your obligations, representations and/or warranties herein contained and do not cure such breach within 10 days of receipt written notice thereof, or (ii) become insolvent or make any assignment for the benefit of creditors, or have any petition under bankruptcy, insolvency or administration law filed against it, which petition is not dismissed within thirty (30) days of such filing, or have a trustee, administrator or receiver appointed for a material portion of its business or assets. If you become subject to any of the foregoing events you will immediately provide us with written notification thereof. We may immediately block your access to your Account, temporarily or permanently, suspend your Account or terminate this Agreement, in addition to any other remedies that may be available to us under this Agreement, if you engage in any acts prohibited by this Agreement.
  2. Upon the termination of this Agreement, for any reason: (a) all your rights and licenses granted herein shall terminate immediately; (b) your right to use SDK and/or the Service thereto and/or any part thereof, will terminate and, if integrated within Client’s Product, you must promptly remove and delete the SDK and/or the Software from the Client’s Product and systems and destroy all copies of the SDK, as applicable; (c) your access to the your Account will be blocked; (d) you shall promptly return our Confidential Information, or destroy and certify the destruction of all of our Confidential Information. We will not be liable to you or any person for the termination of this Agreement or termination of your access to your Account and we will have no obligation to maintain any information stored in our data centers related to you and/or to your Account, or to forward any information to you or any person following the effective date of termination of this Agreement. Following the termination of this Agreement or suspension of your Account, any information which is related to your Account may no longer be accessed by you.
  3. Anything to the contrary notwithstanding, the following sections shall survive the expiration or termination of this Agreement for any reason: 1, 6.2, 6.3, 8, 9 and 10.

6.  Our Warranties and Liability

  1. The SDK and/or the Service provided to you by Oriient under this Agreement and/or in connection thereto are provided on an “AS-IS” basis. Except as expressly provided in this Agreement and to the fullest extent allowable by applicable laws, rules and/or regulations, Oriient makes no other warranty of any kind, express, implied, statutory or otherwise, including without limitation, warranties of merchantability, fitness for a particular use or non-infringement or those arising in the course of or connected to the performance hereunder, and Oriient disclaims any such warranties. Furthermore, Oriient does not represent or warrant that: (a) the SDK and/or the Service provided to you by Oriient under this Agreement and/or in connection thereto or any part therein, will be uninterrupted, error free or that any errors will be corrected; or (b) the SDK and/or the Service provided to you by Oriient under this Agreement and/or in connection thereto is and will remain free of viruses, worms, or any other harmful components or program limitations or non-infringement (c) you will profit or derive any economic benefit from your use of the SDK and/or the Service provided to you by Oriient under this Agreement and/or in connection thereto. Some states or jurisdictions do not allow the exclusion of certain warranties, so some of the above exclusions may not apply.
  2. IN NO EVENT WILL ORIIENT AND/OR ITS SUBSIDIARIES, SHAREHOLDERS, DIRECTORS, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS AND PERMITTED ASSIGNEES (COLLECTIVELY, THE “ORIIENT GROUP“) BE LIABLE TO YOU OR ANY THIRD PARTY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS OR REVENUES AND ANY DAMAGES FOR THE USE OR INABILITY TO USE OUR SDK AND/OR THE SERVICE WE PROVIDE YOU UNDER THIS AGREEMENT AND/OR IN CONNECTION THERETO, OR ANY PART THEREOF, LOST DATA, LOST PROFITS, LOSS OF GOODWILL, LOST REVENUE, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE ORIIENT SDK, OR ANY PART THEREIN UNDER ANY THEORY OF LIABILITY, INCLUDING FOR CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT THE ORIIENT GROUP WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN.
  3. IN NO EVENT SHALL THE ORIIENT GROUP’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED ONE THOUSAND U.S. DOLLARS (US$1,000). THE USE OF THE ORIIENT SDK AND/OR ANY SERVICE OFFERED BY ORIIENT UNDER THIS AGREEMENT AND/OR IN CONNECTION THERETO OR ANY PART THEREOF IS ENTIRELY AT YOUR OWN RISK, AND ORIIENT SHALL HAVE NO LIABILITY RELATING TO SUCH USE.

7.  Software Updates

These Terms will govern any upgrades, updates, supplements and add-on components (if any) to the Software that Oriient may provide to you or make available to you after the date you obtain your initial copy of the Software (collectively, the “Updates“), unless we provide other terms along with such Updates. After upgrading, you may no longer use the older version of the Software unless agreed to otherwise in writing between you and the Oriient. You acknowledge and agree that we may automatically check the version of the Software and/or its components that you are utilizing and may provide Updates to the Software.

8.  Indemnification

You shall defend, indemnify and hold harmless the Oriient Group from and against any and all Claims threatened, asserted or filed, brought or made by any person against the Oriient Group arising from: (a) your use of the Oriient SDK and/or the Service provided to you by Oriient per this Agreement and/or in connection thereto, including for any Losses, whether direct, indirect, special or consequential, that may be caused to any person as a result thereof; (b) your breach or alleged breach of any warranty, representation or obligation made by you under this Agreement; (c) your violation of any person’s rights, including Users’ right of privacy; and (d) Users’ use of your Client’s Product. You shall promptly notify us of any Claim. You shall have full control and sole authority over the defense and settlement of a Claim; provided, however; that any settlement will be subject to our prior approval and provided further that you shall not assume the control of the defense of a Claim to the extent that we determine that (i) a Claim relates to our technology and/or Software, (ii) any relief other than monetary damages is sought against us, or (iii) there may be a conflict of interest between you and us in the conduct of the defense of a Claim, and in each such event the costs of defense will be considered “Claims” as defined above. The Oriient Group may join in the defense of a Claim with counsel of its choice at its own expense.

9.  Confidentiality

During the Term and thereafter, you agree that you shall not disclose or use the Confidential Information without Oriient’s prior written consent. You agrees to take reasonable steps, at least substantially equivalent to the steps you take to protect your own Confidential Information, during the Term and for a period of seven (7) years thereafter to prevent the disclosure of the Confidential Information other than to your employees, who must have access to such Confidential Information to perform your obligations or exercise your rights hereunder.

10.  Miscellaneous

This Agreement will be governed by the laws of the State of Israel, without regard to conflict of law provisions. The parties both agree to submit to exclusive jurisdiction in the State of Israel and the exclusive venue in the courts of Tel Aviv-Jaffa, Israel. The prevailing party in any action arising out of this Agreement shall be entitled to an award of its reasonable costs and attorneys’ fees.

The parties are independent contractors, and nothing in this Agreement will be construed to create a partnership, joint venture, agency or other relationship between the parties.

No failure or forbearance by a party to enforce any of its rights under this Agreement or insist upon performance of the other party’s obligations under this Agreement will be deemed a waiver of such rights or obligations to any extent, and no waiver by either party of any default or breach of the Agreement will constitute a waiver of any other or subsequent default or breach.

This Agreement may be amended, modified or superseded, only by a written instrument signed by the parties hereto.

The headings herein and in the Agreement are for the convenience of reference only and have no legal effect.

If any provision in this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable.

Client may not assign or transfer its rights or obligations under this Agreement without the prior written consent of Oriient. Oriient may assign the Agreement or any rights or obligations under the Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or change of control or ownership.

All notices required or permitted under this Agreement shall be in English and in writing. Notices shall be delivered as follows: (a) to us – by e-mail, registered or certified mail (postage prepaid) or by overnight courier service, at the address set forth on the Oriient internet site, and (b) to you by e-mail to address associated with your Account. A notice shall be deemed given (i) upon receipt when delivered personally, (ii) upon verification of receipt via e-mail, (iii) within one (1) business day of being sent by overnight courier, or (iv) within three (3) business days of being sent by registered or certified mail. For purposes of the foregoing, you agree that we may rely upon the e-mail address you provided as part of your Account and that we will not be responsible for delays in the delivery of e-mails which delays are not associated with your mail server.

 

If you have any questions (or comments) concerning the Agreement, please contact us at: info@oriient.me.

Last modified: July 16, 2018

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