Rubyk OT
Terms of Use
Updated: 27 July, 2023
These Terms of use (the "Terms" or "Terms of Use") govern the access and use of the Rubyk OT Product (the "Product"). The Product provides protection layer to physical assets connected to communication networks by isolating and defending the physical asset from cyber security attacks, as well as defending the communication networks from cyber security attacks made using the physical asset.
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The Product is comprised of the Rubyk OT device (the "Rubyk OT Device") and of the Rubyk software embedded therein (the "Software").
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These Terms of Use Shall apply to any entity purchasing and/or using the Product. By executing a purchase order, quotation and/or any other commercial agreement for the purchase of the Product and/or by using the Product and/or by clicking the "I Agree" (or similar) button referring to these Terms of Use, you signify that you are entering into a binding agreement with us and agree to be bound by these Terms of Use.
We reserve the right, at our discretion, to change and/or update these Terms at any time. Such change will be effective seven (7) days after posting the revised Terms on our Website, and your continued use of the Product thereafter means that you accept those changes and/or updates.
IF YOU DO NOT AGREE TO (OR CANNOT COMPLY WITH) THE TERMS HEREOF AND/OR OUR PRIVACY POLICY, THEN YOU ARE NOT PERMITTED TO USE THE PRODUCT AND/OR ANY PART THEREOF.
1. Definitions
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1.1 "RUBYCOMM" or "Company" or "we" or "us" means RUBYCOMM LTD, an Israeli company (Registration Number 516563897), with its business address at Millennium House (12th Floor), Hatidhar Street 2, Ra'anana 4366504, Israel.
1.2 "User" or "you" or "Licensee" means the legal entity and/or individual using and/or given the right to use the Product in accordance with this Agreement.
1.3 "Product Purchaser" means the entity that has purchased the Product from RUBYCOMM. The Product Purchaser may use the Product by itself and for its internal business purposes. To the extent permitted under the Commercial Agreement, the Product Purchaser may also make the Product available for use by its customers and/or sell the Products to its customers. In the event that the Product Purchaser uses the Product by itself, it shall be deemed as a "User" and/or "Licensee" of the Product. It is clarified that any reference in these Terms of Use to the terms "User" and/or "Licensee" and/or "you" shall apply also to any customer of the Product Purchaser that has purchased the Product from the Product Purchaser and/or was granted with the right to use the Product (to the extent permitted under the Commercial Agreement).
1.4 "Agreement" means these Terms of Use and/or any other terms and conditions incorporated herein by reference and/or any order form, purchase order, approved quotation and/or any other commercial agreement, if any, executed by the Product Purchaser and/or entered between the Product Purchaser and RUBYCOMM (the "Commercial Agreement"). The Commercial Agreement (if any), these Terms of Use, the Privacy Policy and any other legal notices published by RUBYCOMM in connection with the Product shall constitute the complete and exclusive statement of the agreement between you and RUBYCOMM.
1.5 "Engagement Data" means all data and/or information of the Product Purchaser and/or its employees and/or personnel, provided to RUBYCOMM by the Product Purchaser and used for engagement with the Product Purchaser such as technical support contact, billing information and contact information.
1.6 "RubyComm Website" means any website that is the property of RUBYCOMM, including but not limited to everything hosted under the domains listed at www.rubycomm.com.
1.7 "Product" means the solution offered by RUBYCOMM that includes the Rubyk-OT Device and the Software. For the avoidance of any doubt, it is clarified that the Product is not tailored to the specifications of the Product Purchaser and/or any User nor customized through modification and is intended for mass distribution.
1.8 "Privacy Policy" means the RUBYCOMM Privacy Policy available at www.rubycomm.com/legal as updated from time to time.
1.9 "Personal Data" means any information relating to an identified or identifiable natural person.
1.10 "Software" means the software embedded in the Product, including but not limited to any upgrades, updates, revisions, new versions or releases of the Software.
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1.11 "Terms of Purchase" means the RUBYCOMM Terms of Purchase available at www.rubycomm.com/legal which may be updated from time to time.
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1.12 "Intellectual Property Rights" means any and all the intangible legal rights, titles and interest including, but without limitation: (i) any and all patents (whether in the form of utility patents or design patents), patent application (whether pending or not), and patent disclosures, together with all re-issuances, continuations, continuations-in-part, revisions, extensions and reexaminations thereof; (ii) all trademarks, service marks, logos, trade names and corporate names, together with all translations, adaptations, derivations and combinations thereof and all applications, registrations and renewals in connection therewith; (iii) all copyrightable works, copyrights, which have been, or which may be, registered in the future (including moral rights) and all applications, registrations and renewals in connection therewith; (iv) all trade secrets and Confidential Information (as defined below); (v) all other proprietary rights, industrial rights, commercial rights and any other similar rights, all of the above on a worldwide basis.
2. Your Responsibilities
2.1 In order to be able to use the Product, you should obtain all the applicable or required utilities, software, devices and equipment at your sole risk and expense, including, if applicable, an Internet connection, any equipment necessary for the Internet connection, and, if applicable, any third-party software necessary for using the Product, including, but not limited to, browser software that supports a data security protocol compatible with the protocol used by RUBYCOMM. You acknowledge that the Product requires a permanent Internet connection in order to work. In addition, the Product Purchaser should provide RUBYCOMM with a valid email address and other accurate information as requested and required to ensure the functionality of the Product.
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2.2 The Product Purchaser and/or the User are responsible for: (i) compliance with applicable laws and government regulations with respect to the use of the Product; (ii) configuring and using the Product; and (iii) if applicable, the confidentiality of the username and passwords that the Product Purchaser and/or its Users have established in connection with the Product.
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2.3 To the extent that the Commercial Agreement provides that the Product Purchaser may sell the Product and/or make it available to its customers, then the Product Purchaser undertakes that the agreements to be entered between the Product Purchaser and such customers in relation to the Product shall be consistent with this Agreement and shall apply all the provisions of this Agreement referring to restriction of use, warranty, limitation of liability, intellectual property rights and confidentiality. It is further agreed that the Company shall not have any contractual relationships with and/or any liability and/or responsibility to any third party that shall make any use of the Product and/or purchase the Product from the Product Purchaser.
3. Product Delivery and Access to the Product
3.1 The Product Purchaser is responsible for providing RUBYCOMM with a valid physical address for the delivery of the Rubyk OT Device and a valid email address to confirm physical deliveries.
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3.2 The Product Purchaser is responsible for providing RUBYCOMM with a valid e-mail address that shall be used by RUBYCOMM for sending updates and/or notices regarding the Product including, but not limited to, notices with respect to version updates. Any details necessary to enable the Product Purchaser and/or the Users to download Software updates and/or use the Product shall be delivered by RUBYCOMM to the Product Purchaser via email to the email address provided by the Product Purchaser.
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3.3 The Product Purchaser and its Users are solely responsible for the accuracy and completeness of any information provided to RUBYCOMM and any action taken using the Product.
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3.4 For those deliveries under this Agreement that will be electronic, you must have an Internet connection in order to receive any deliveries including but not limited to Software updates and/or upgrades.
4. Personal Data
4.1 In connection with your use of the Product, RUBYCOMM will process the information set out in section 4.2 below, for the following purposes:
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4.1.1. To provide the Product Purchaser with Software updates and/or upgrades;
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4.1.2. For our internal evidence and to protect our rights and interests;
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4.1.3. To promote and market our products and services to the Product Purchaser;
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4.1.4. To fulfill the legal duties stipulated by accounting, taxation and other laws, if applicable.
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The Product Purchaser may object to the processing of the Engagement Data for the purposes specified in section 4.1.3 at any time. More detailed information about Personal Data processing for the above-mentioned purposes and about your rights can be found in the Privacy Policy at www.rubycomm.com/legal.
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4.2 For the above purposes, RUBYCOMM may process and/or collect solely the Engagement Data. Such data may include the following: the Product Purchaser main point of contact information including first name, last name, email address, phone number, company name, country, other contact and identification details, information regarding your subscription and payments and any other technical information required for the functionality of the Product.
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4.3 In the framework of this Agreement, RUBYCOMM shall not access and/or collect and/or process any Personal Data of the Product Purchaser and/or the Users and/or any other person.
5. Grant of Rights
5.1 The Product is intended for corporations and for individuals who are at least 18 years old. Any use of the Product by anyone under the age of 18 is expressly prohibited. By using the Product you warrant that you are either a corporation or over the age of 18 or possess the appropriate legal parental or guardian consent to enter into this Agreement and comply therewith.
5.2 If you use the Product for proof of concept, trial, evaluation or other similar purpose ("Evaluations"), you may do so for 30 days only, unless the Company issues an extension. The Company reserves the right to terminate Evaluations at any time. Upon expiration or termination of an Evaluation, you shall cease using the Product provided for the Evaluation and must return any Evaluation hardware to the Company in the same condition as when first received, except for reasonable wear and tear.
5.3 Subject to all of the terms of this Agreement and/or the Commercial Agreement, and to the payment of all fees payable hereunder and/or under the Commercial Agreement, RUBYCOMM hereby grants to the Licensee a perpetual, personal, non-exclusive, non-sub-licensable, non-transferable limited right and license to use the Product solely for your internal business use and for no other purpose whatsoever, and strictly in accordance and compliance with this Agreement and any applicable law ("License"). Notwithstanding, to the extent the Commercial Agreement provides that the Product Purchaser may sell the Product and/or make it available to its customers, then the Product Purchaser may allow its customers to use the Product pursuant to the terms hereof.
Unless otherwise agreed in the Commercial Agreement, the consideration payable by the Product Purchaser includes Software updates and/or upgrades as well as limited support and hardware warranty solely for the first 12-months' period commencing on the delivery date of the Product to the Product Purchaser (the "Initial Term"). Following the expiration of the Initial Term, the provision of Software updates and/or upgrades and/or support services and/or hardware warranty to the Product Purchaser shall be subject to the payment of license fees by the Product Purchaser to the Company (such license fees shall be determined by the Company under its sole discretion). The Company shall not be obligated to provide, following the expiration of the Initial Term, Software updates and/or upgrades and/or support services and/or hardware warranty to the Product Purchaser if the Product Purchaser shall not pay such license fees.
5.4 If you contact RUBYCOMM with feedback, comments, ideas, suggestions or the like regarding the Product (collectively, the "Feedback Data"), you agree that all such Feedback Data shall be deemed to be non-confidential, and RUBYCOMM shall have an exclusive, royalty-free, license-fee free, worldwide, perpetual license to incorporate into the Product any such Feedback Data and/or use the same for any purpose.
6. Restrictions
6.1 Except as expressly permitted herein and/or in the Commercial Agreement, you shall not (and not permit any third party) to: (i) copy, modify, improve, incorporate into or with other software, or create derivative works of the Product, or any part thereof; (ii) decompile, disassemble, decrypt, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Product, or any portion thereof; (iii) alter, remove or obscure any product identification, name, mark, logo, tradename, trademark, service mark, copyright, patent or other proprietary notices or markings, legends, symbols, or labels contained in or displayed on or via the Product; (iv) sell, lease, lend, sublicense, provide or otherwise distribute or transfer the Product, or any portion thereof, unless the Commercial Agreement permits otherwise; (v) disable, circumvent or otherwise interfere with the Product's security-related features or technical restrictions; (vi) use the name, logo or trademarks of RUBYCOMM without receiving its prior written consent; (vii) use the Product for any commercial purpose or for the benefit of a third party or in any manner not permitted herein, unless the Commercial Agreement permits otherwise, (viii) invade the privacy rights of any Product user or third party; (ix) use the Product, or allow the transfer, transmission, export, or re-export of the Product or portion thereof, in violation of any applicable export control laws or regulations; and/or (x) use the Product to violate any applicable laws, rules or regulations, for any illegal or unauthorized purpose or in any manner that breaches the terms hereof. The Licensee undertakes that it shall comply with all applicable laws and regulations, including any applicable data protection laws and regulations, governing its use of the Product.
6.2 Without derogating from the generality of the foregoing, the Licensee agrees and undertakes that it shall not use the Product for the purpose of uploading and/or downloading and/or sending and/or sharing any content that is false, misleading, insulting, harassing, that violates and/or invades the privacy or negatively impact the reputation or Intellectual Property Rights of any third party. In this vein, the Licensee agrees not to use the Product for the purpose of uploading, downloading and/or sending and/or sharing pornographic content, content that involves the invasion of privacy, content designed to persuade or encourage participation in illegal and/or criminal activity such as gambling, acts of violence, discrimination or racism, or content that could cause harm to public sentiment. The Licensee further agrees not to use the Product for any illegal activities. The Licensee agrees to fully comply with all applicable export laws and regulations to ensure that neither the Product nor any data transmitted through it are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
6.3 The Licensee shall indemnify the Company from and against any damage, loss and/or expense that may be caused to the Company as a result of any breach of the License by the Licensee.
7. Third Party Software and/or Hardware
7.1 The Product may include components and/or programs belonging to third parties, and certain provisions of this Agreement may relate to such licensors’ rights in and to such components and/or programs. Such provisions are made expressly for the benefit of these licensors and, to the extent permitted by applicable law, are enforceable by such licensors in addition to the Company. The Company hereby represents that it has obtained and will keep in effect for the term of this Agreement, all necessary rights belonging to the software and/or hardware provided by third parties pursuant to the terms of this Agreement. To the extent required by third party licenses, the Company has and/or shall include the applicable notices and disclaimers relating to such third party programs on the Software and/or in the Documentation (as defined below) provided with such Software (to the extent that such third party programs are included in the Software).
7.2 The Product may use or include third party software and/or hardware that is subject to open source and third party license terms ("Open Source Software"). These Open Source Software license terms are consistent with the License granted hereunder and may contain additional rights benefiting you. The Company represents and warrants that the Product, when used in conformance with this Agreement, does not include Open Source Software that restricts your ability to use the Product nor requires you to disclose, license or make available at no charge any material proprietary source code that embodies any of your Intellectual Property Rights. Under no circumstances shall the Product or any portion thereof (except for the Open Source Software contained therein) be deemed to be "open source" or "publicly available" software.
8. Updates and Upgrades
RUBYCOMM may revise or update the Software from time to time. Such updates and revisions may be supplied to the Product Purchaser according to RUBYCOMM's then-current policies and subject to the provisions of section 5.3 above. RUBYCOMM is not under any obligation to supply such updates and revisions. The terms of this Agreement will govern any such updates and revisions provided by RUBYCOMM that replace or supplement the original Product, unless these are accompanied by a separate license agreement which will prevail, and all references herein to the Product shall include such updates and revisions.
9. Ownership
9.1 RUBYCOMM and/or its affiliates, suppliers and licensors own and retain all right, title and interest, in and to: (i) the Product and the applicable related user documentation (the "Documentation"), including all copies, components, upgrades, modifications, enhancements and derivative works thereof and including all Intellectual Property Rights embodied therein or related thereto; (ii) all of the service marks, trademarks, trade names or any other designations associated with the Product; and (iii) all copyrights, patent rights, trade secret rights and other proprietary rights relating to the Product and the Documentation. The Licensee acknowledges and agrees that it shall have no rights with respect to any of the foregoing other than the rights expressly set forth in this Agreement. The Licensee further acknowledges and agrees that the Software is being licensed hereunder and not sold. All rights not expressly granted to the Licensee hereunder are reserved by RUBYCOMM and its licensors.
9.2 Without derogating from the generality of the foregoing, it is agreed that RUBYCOMM and its licensors retain and shall own all the rights, title and interests, including without limitation, all Intellectual Property Rights, in and to the Product and/or any part thereof, whether these are registered or unregistered, evidenced by or embodied in and/or attached/connected/related in and to the Product and/or any part thereof and/or any derivatives thereof, and/or improvements to, even if suggestions made by the Licensee are incorporated therein.
10. Maintenance and Support
You acknowledge and agree that RUBYCOMM is not obliged to provide you with any maintenance and/or support services with respect to the Product. Notwithstanding, in the event that RUBYCOMM shall agree, in writing, to provide you with maintenance and/or support services, such services shall be provided pursuant to the terms of RUBYCOMM's standard service level agreement as amended and/or updated from time to time.
11. Fees and Payment
In consideration for the purchase of the Product and for the License, the Product Purchaser shall pay the Company the consideration specified in the Commercial Agreement and/or otherwise agreed upon between the Product Purchaser and the Company prior to the purchase of the Product by the Product Purchaser (the "Consideration"). The Product Purchaser shall pay the Consideration to the Company pursuant to the payment terms specified in the Commercial Agreement and/or otherwise agreed between the Product Purchaser and the Company. Any payments more than thirty (30) days overdue will accrue interest at the highest rate permissible by applicable law. All amounts payable by the Product Purchaser are exclusive of any local or foreign sales, uses, property, excise, import, service, freight or other taxes, fees, duties, customs or other amounts (unless otherwise specified in the Commercial Agreement), however designated, now or hereafter levied, including value added, import and withholding taxes which are levied or based upon such charges or upon this Agreement ("Taxes"). The Product Purchaser will be responsible for all Taxes. If the Product Purchaser is required by law to deduct or withhold any Taxes from any amount payable hereunder, then the amount payable hereunder shall be increased so that after making all required deductions and/or withholdings, the Company receives a net amount equal to the amount it would have received had no such deductions or withholdings been made. The payment of the Consideration shall also be subject to the Terms of Purchase.
12. Termination
This Agreement and all Licenses granted hereunder will terminate at the end of the fourteen (14) days period following delivery by the Company of a notice of any breach of this Agreement by the Product Purchaser and/or Users, including a breach relating to non-payment of the Consideration, provided that any such breach remains uncured at the end of such notice period. Upon termination, or if the License ceases to be effective, the Product Purchaser and its Users shall immediately cease all use of the Product and so certify in writing to the Company and immediately pay all amounts due to the Company hereunder. Except as otherwise expressly provided herein, the terms of Sections 2, 4, 5, 6, 9, 11, 13, 14, 15, 16 and 17 shall survive termination of this Agreement. Termination is not an exclusive remedy and all other remedies available under applicable law or in equity will be available to the Company whether or not termination occurs.
13. Indemnification
The Company shall hold the Licensee harmless from liability to third parties resulting from infringement by the Product of any third party Intellectual Property Rights, provided that the Company is promptly notified of any and all threats, claims and/or proceedings related thereto and given reasonable assistance by the Licensee and the opportunity to assume sole control over defense and settlement; the Company will not be responsible for any settlement it does not approve in writing and in advance. If the Product becomes or in the Company’s opinion is likely to become the subject of an infringement claim, the Company may, at its option and expense, either: (a) procure for the Licensee the right to continue using the Product, (b) replace or modify the Product so that it becomes non-infringing, or (c) terminate this Agreement and provide the Product Purchaser with a pro-rata refund of the unamortized portion of the Consideration paid to the Company by the Product Purchaser based on a 36 (thirty six) months straight-line depreciation, such depreciation to commence on the date on which the Product is delivered to the Product Purchaser, in which event neither party shall have any right and/or claim against the other with respect to such termination. The foregoing obligations do not apply with respect to the Product or portions or components thereof: (i) not supplied by the Company; (ii) made in whole or in part in accordance to the Product Purchaser’s specifications; (iii) that are modified after delivery by the Company; (iv) combined with other products, processes or materials where the alleged infringement relates to such combination; (v) where the Product Purchaser and/or its Users continue allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where the Licensee’s use of the Product is not strictly in accordance with this Agreement or with the Documentation. The Product Purchaser and/or its Users will indemnify the Company for all liabilities, losses, damages, settlements, attorneys’ fees and expenses related to the use of the Product by the Product Purchaser and/or its Users in breach of this Agreement and/or in violation of any law and/or third party rights.
14. Disclaimers
14.1 The Company warrants to the Licensee, that during the Initial Term, the Product will operate substantially in accordance with its intended use. The Product or any part thereof which has been subject to abuse, misuse, accident, alteration, modification, neglect, unauthorized repair or unauthorized installation are not covered by such warranty. Any liability of the Company and its suppliers and licensors with respect to the Product or the performance thereof under any warranty, negligence, strict liability or other theory will be limited exclusively to replacement or correction, or, if replacement or correction is inadequate as a remedy or, in the Company’s opinion, impractical, to provide the Licensee with a pro-rata refund of the unamortized portion of the Consideration paid to the Company by the Product Purchaser for such Product based on a 36 (thirty six) months straight-line depreciation, such depreciation to commence on the date on which the Product is delivered to the Product Purchaser.
14.2 EXCEPT FOR THE FOREGOING, TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, THE PRODUCT IS PROVIDED "AS IS", "WITH ALL FAULTS" AND "AS AVAILABLE" AND YOU BEAR ALL RISK OF USING IT. RUBYCOMM, IT'S AFFILIATES AND ITS LICENSORS DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, IN RELATION TO THE PRODUCT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. WE DO NOT WARRANT THAT: (I) THE PRODUCT WILL BE FREE FROM DEFECTS, VIRUSES, HACKS OR OTHER HARMFUL CODE; (II) YOUR USE OF THE PRODUCT WILL BE UNINTERRUPTED, SECURE, TIMELY OR ERROR-FREE; (III) YOUR DATA AND/OR CONTENT SHALL BE SECURED; (IV) WE WILL CORRECT ANY ERRORS OR DEFECTS IN THE PRODUCT; (V) THE PRODUCT WILL BE INTEROPERABLE OR COMPATIBLE WITH YOUR DEVICES, OTHER SOFTWARE, HARDWARE, OR ANY EQUIPMENT, AND WE ARE NOT RESPONSIBLE FOR ANY LOSSES SUFFERED RESULTING FROM INTEROPERABILITY OR COMPATIBILITY PROBLEMS; AND/OR (VI) MEET YOUR REQUIREMENTS. WE ARE NOT RESPONSIBLE, AND HAVE NO LIABILITY FOR ANY HARDWARE, SOFTWARE, OR OTHER ITEM OR SERVICE PROVIDED BY ANY PERSON OR ENTITY OTHER THAN RUBYCOMM. EXCEPT FOR ANY WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE PRODUCT OR AS TO THE SATISFACTORY QUALITY, PERFORMANCE, AND ACCURACY OF SUCH USE REMAINS WITH YOU.
14.3 WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING, YOU ACKNOWLEDGE THAT WE DO NOT WARRANT OR GUARANTEE THE SECURITY OF THE PRODUCT OR OF COMMUNICATIONS MADE USING THE PRODUCT, AND YOU ASSUME ALL RISKS ASSOCIATED WITH THE SAME.
14.4 YOU ACKNOWLEDGE AND AGREE THAT WE ARE NOT RESPONSIBLE FOR ANY CONSEQUENCES TO YOU OR OTHER PERSONS OR ENTITIES THAT MAY RESULT FROM ANY MALFUNCTIONS AND/OR ERRORS IN THE PRODUCT AND/OR ANY TECHNICAL PROBLEMS (INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION, OVERLOAD OF SERVERS, DELAYS OR INTERRUPTIONS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS.
14.5 YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGE THAT MAY BE CAUSED TO YOU AS A RESULT OF SECURITY BREACH IN THE PRODUCT, INCLUDING IN THE EVENT THAT THIRD PARTIES SHALL UNLAWFULLY ACCESS YOUR CONTENT AND/OR DATA AND/OR COMPUTER AND/OR ANY OTHER DEVICES CONNECTED TO THE PRODUCT WHILE YOU ARE USING THE PRODUCT.
14.6 YOU FURTHER ACKNOWLEDGE THAT THE PRODUCT DOES NOT PROTECT YOU OR YOUR EQUIPMENT FROM ALL POTENTIAL RISKS WITHIN WIRELESS AND/OR NON-WIRELESS NETWORKS.
15. Limitation of Liability
15.1 TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, IN NO EVENT WILL WE BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, NEGLIGENCE, OR STRICT LIABILITY) FOR DEATH, PERSONAL INJURY OR ANY SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, DIRECT, INDIRECT, OR CONSEQUENTIAL LOSSES OR DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES TO OR LOSSES OF PROFITS, DATA, GOODWILL, REPUTATION OR BUSINESS INFORMATION, BUSINESS INTERRUPTION, CORRUPTION, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR DAMAGES TO PROPERTY OR COMPUTER, OR OTHER DEVICE FAILURE OR MALFUNCTION), ARISING HEREUNDER OR FROM YOUR USE OR INABILITY TO USE THE PRODUCT, HOWEVER CAUSED, EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15.2 IN ANY CASE, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, OUR TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES OR LOSSES WHATSOEVER ARISING HEREUNDER OR IN CONNECTION WITH YOUR USE OR INABILITY TO USE THE PRODUCT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU, IF ANY, TO US FOR THE PURCHASE OF THE PRODUCT OR $US300, WHICHEVER IS GREATER.
16. Confidentiality
All information disclosed by either party (the "Disclosing Party") to the other party (the "Receiving Party") hereunder, whether in writing, orally or in any other form, which is not in the public domain (the "Confidential Information"), shall be held in absolute confidence, and the Receiving Party shall take all reasonable and necessary safeguards (affording the Confidential Information at least the same level of protection that it affords its own information of similar importance and in no event less than a reasonable degree of care) to prevent the disclosure of such Confidential Information to third parties. In addition, the Receiving Party will limit its disclosure of the Confidential Information to employees with a "need to know" and only in the context of such employees’ fulfillment of their duties under this Agreement. Notwithstanding, either party will be allowed to disclose Confidential Information of the other party to the extent that such disclosure is: (i) approved in writing by the other party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement; or (iii) required by law or by the order of a court or any administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
17. Miscellaneous
17.1 Entire Agreement. This Agreement, together with the Privacy Policy and any applicable Commercial Agreement, constitute the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
17.2 Construction. Section headings are provided solely for reference purposes and in no way define, limit, interpret or describe the scope or extent of such section or in any way affect this Agreement. When used in this Agreement, the term "including" means "including without limitation," unless expressly stated to the contrary.
17.3 Waivers or Amendments. Any waivers or amendments to this Agreement shall be effective only if made in writing and signed by both parties.
17.4 Exercise of Rights; Severability. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
17.5 Assignment. Neither the Agreement nor the Licenses granted hereunder are assignable or transferable by the Licensee without the prior written consent of the Company; any attempt to do so shall be void. The Company may assign this Agreement in whole or in part, provided that the Licensee's rights hereunder shall not be derogated.
17.6 Notices. Any notice, report, approval or consent required or permitted hereunder shall be in writing, delivered to such party’s address as set forth in the Commercial Agreement, or at such other address as a party may designate by a ten (10) days’ advance written notice to the other party. Notices shall be effective on the business day sent if delivered personally or via email, or four (4) business days after post-marking if sent by certified or registered mail.
17.7 Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Israel, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of Israel. The competent courts in Tel-Aviv-Jaffa, Israel shall have sole and exclusive jurisdiction regarding any dispute or claim arising hereunder.
17.8 Force Majeure. Neither party shall be liable for any failure or delay in performing its obligations under this Agreement, other than payment obligations, due to a Force Majeure Event (as defined below), provided that such party takes diligent action to perform its obligations as promptly as possible after the condition has abated. "Force Majeure Event" means any cause preventing either party from performing any or all of its obligations which arises from or is attributable to strikes, lock-outs or other industrial disputes, nuclear accident or acts of God, war or terrorist activity, riot, civil commotion, malicious damage, period of national mourning, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, drought, earthquake, storm, lightning, epidemic, unforeseen subsurface conditions, sabotage, explosions, and, where they are beyond the reasonable control of the party so prevented, any other acts, events, omissions or accidents.
17.9 Remedies. The parties’ rights and remedies under this Agreement are cumulative. The Licensee acknowledges that the Product contains valuable trade secrets and proprietary information of the Company, that any actual or threatened breach of the licenses granted herein will constitute immediate, irreparable harm to the Company for which monetary damages would be an inadequate remedy and that injunctive relief is an appropriate remedy for such breach.
17.10 Reservation of Rights. RUBYCOMM reserves the right at any time to cease the support of the Product and to alter prices, features, specifications, capabilities, functions, terms of use, release dates, general availability, or other characteristics of the Product.
17.11. Changes to this Agreement. We may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (for example, by contacting you at the email address you have provided to us, by posting on the RubyComm Website, or via the Product itself). If we modify this Agreement, the modified version of the Agreement will be effective from the date of change. In this case, if you object to the updated Agreement terms, as your exclusive remedy, you may terminate this Agreement. You may be required to click through the updated Agreement to show your acceptance.
For exceptions or modifications to this Agreement, please contact RUBYCOMM at info@rubycomm.com.