CodiQ provides a unified platform for process manufacturing control & automation that simplifies the entire lifecycle, from development to on-going production, maintenance, and optimization.
“Customer” means any customer listed in the Order Form.
“Customer Content” means any specifications or other user content entered into the Solution, or otherwise provided to CodiQ, by the Customer or on its behalf.
“Deliverables” means certain deliverable PLC and HMI source code and/or scripts provided by the Studio Application.
“Manifestation” means the application of the Deliverables to a single location consisting of a single manufacturing facility and/or assembly line.
“Services” means the Solution and any ancillary services offered by CodiQ.
“Solution” means, collectively, the Studio Application and Runtime Application.
“Users” means any of Customer’s personnel or Customer’s affiliates’ personnel who are specifically authorized by Customer to access the Services.
- License to the Studio Application.
Subject to the Customer opting into the Studio Application services as part of the Order Form and subject to the Customer’s compliance with the terms and conditions of this Agreement, CodiQ hereby grants to the Customer a limited, non-exclusive, non-transferable, non-sublicensable license to use, access and permit Users on its behalf to use and access, the Studio Application for its own commercial purposes and on the conditions specified in the Order Form. All rights in the Studio Application not expressly granted hereunder are reserved to CodiQ (or its licensors).
- License to Deliverable Code.
CodiQ, through the Studio Application, may provide Customer with certain Deliverables, subject to the terms of section 2 herein.
Subject to the terms and conditions of this Agreement, CodiQ hereby grants to the Customer a fully paid, perpetual, non-exclusive, transferable, sublicensable license to use and modify the Deliverables for its own commercial purposes and on the conditions specified in the Order Form. All rights in the Deliverables not expressly granted hereunder are reserved to CodiQ.
Customer shall restrict use of the Deliverables, including by any User or third party on its behalf, to a single Manifestation and will not circumvent or attempt to override any of the usage rules or security mechanisms embedded within the Deliverables. Customer may not sublicense any rights in the Deliverables, provided that the foregoing will not prevent Customer from using any third party on its behalf in making use in the Deliverables solely for Customer’s own commercial purposes. It is clarified that, unless expressly allowed in the Order Form, Deliverables may only be used via the Runtime Application and subject to a license covering the same number (or more) of “Controlled Modules” represented in the Deliverables.
- License to the Runtime Application.
Subject to the Customer opting into the Runtime Application services as part of the Order Form and subject to the Customer’s compliance with the terms and conditions of this Agreement, CodiQ hereby grants to the Customer a limited, non-exclusive, non-transferable, non-sublicensable license to use, access and permit Users on its behalf to use and access, the Runtime Application for its own commercial purposes and on the conditions specified in the Order Form. All rights in the Runtime Application not expressly granted hereunder are reserved to CodiQ (or its licensors).
Please make sure that you select the scope of license for the Runtime Application appropriate for your needs including the correct number of Controlled Modules for your Deliverables!
Please note that any alterations or modifications to the Deliverables not expressly sanctioned in writing by CodiQ may prevent such Deliverables from interoperating with the Runtime Application, and any such alterations or modifications are done at Customer’s sole responsibility and Customer will have no claims against CodiQ in that respect.
- Support and Mainetnance.
Subject to the Customer opting into the support and maintenance services as part of the Order Form and subject to the Customer’s compliance with the terms and conditions of this Agreement, CodiQ will provide Customer with standard support services in accordance with CodiQ’s then current maintenance and support program which may be found here: www.codiq.io/support.
It is clarified that CodiQ shall not have responsibility for any error or degradation of Services, including with respect to issues of compatibility and unresolved bugs, stemming from Customer’s opting out of CodiQ’s Support and Maintenance Services.
- System Integrators,Resellers and Sublicenses
6.1. This section concerns any person or entity who purchases a license to the Solution and/or Deliverables for the purpose of sublicensing sameas a system integrator or as part of an original equipment manufacturer (OEM) product, and provided that such person or entity has been designated as such in an Order Form (a “Reseller”), as well as any person or entity who purchases such Deliverables or sublicenses from a Reseller (the “End User”). A Reseller shall be considered a Customer for the sake of the Agreement. End Users shall be considered as Customers with respect to the Deliverables and Runtime Application.
6.2. Notwithstanding any other provision in these Terms, a Reseller may sublicense rights it has received to the Deliverables and/or the Runtime Application license per sections 3 – 4 above to a single End User subject to the End User’s acceptance of these Terms.
6.3. Any Reseller will keep accurate records of the particulars of any resale of the Services and Deliverables as well as the name, address and other contact information of each purchasers to whom the Deliverables and Services are sublicensed. A Reseller will make such records available to CodiQ promptly upon its reasonable request. The section shall survive termination of this Agreement for any reason for a period of 3 years.
6.4. CodiQ shall have the right to periodically review Reseller’s compliance with the provisions of this Agreement: (i) at any time, via remote connection, if possible; or (ii) otherwise, upon reasonable notice. Reseller will cooperate fully with CodiQ and its authorized agents in any such audit. CodiQ and its authorized agents will comply with reasonable security regulations while on Reseller’s premises.
6.5. Reseller will promptly indemnify, hold harmless and, at the option of CodiQ, defend CodiQ (and its affiliates, employees, officers, directors, partners and agents) from and against any and all third party allegations asserted in any claim, action, lawsuit, investigation or proceeding (including reasonable legal fees), whether actual or alleged, arising out of or related in any way to (a) Reseller’s licensing of the Deliverables not in compliance with the terms and/or by providing warranties or undertakings exceeding those explicitly set out herein or in any separate documentation provided by CodiQ; (b) failure to maintain and operate the Deliverables only in accordance with CodiQ’s labeling, instructions for use, and operating manual and notices relative to the Deliverables, which CodiQ’s has or may in the future provided to Reseller and/or End User, (c) any alterations or modifications to the Deliverables. Reseller may participate in the defense of any such claim with counsel of its own choice. The provisions of section 13.3 shall apply with respect to this section as well.
6.6. If you are an End User receiving Deliverables and/or a sublicense to the Runtime Application from a Reseller, you acknowledge and agree that (i) you have accepted and are bound by these Termswhich shall apply, mutatis mutandis, to the specific sublicenses acquired by you; (ii) CodiQ’s only obligations with regard to the Services are as set forth in these Terms; and (iii) you will have no claim with respect to CodiQ for any cause concerning the Deliverables and will direct any claim for any defect in the Deliverables solely to the Reseller. The provisions of this section 6 shall prevail over any other provision herein with respect to Resellers and End Users.
- Fees and Payment
In consideration for the Services and rights granted herein, Customer shall pay CodiQ the amounts as listed in the Order Form (the “Fees”). Except to the extent set forth otherwise in the Order Form, amounts due hereunder do not include VAT and other taxes, and Customer shall make payment in respect of such taxes in addition to other amounts due hereunder. Late payments shall bear interest at the rate of 12% per annum. Except to the extent expressly stated otherwise, all amounts in this Agreement are stated and payable in United States Dollars.
It is hereby clarified that CodiQ may increase Fees by up to 3% once per calendar year, and such increase shall apply to any ongoing Order Forms, provided that Customer receives a prior written notice of such increase of at least 30 days prior to such increase taking effect.
- Restrictions and Obligations
Except as set forth expressly herein, Customer shall not, and shall not allow any User or third party to: (a) rent, lease, modify, copy, loan, transfer, sublicense, distribute or create derivative works of the Services; (b) disassemble, reverse engineer, attempt to find the underlying code of, or decompile the Services; (c) circumvent any security mechanisms of the Services; or (d) remove or obscure any copyright or other notices from the Services; (e) use the Solution and/or the Services to “stalk” or otherwise harass another person or collect or store unauthorised personal data in relation to any individual; (f) use the Services to transmit or distribute any unsolicited or unauthorised advertising, marketing or promotional material or other form of solicitation (spam); (g) transmit or distribute any virus and/or other code that has contaminating or destructive elements; and/or (h) otherwise engage in any unlawful activity; and/or (i) attempt to override or circumvent any of the usage rules embedded into the Solution. To the extent any of the restrictions set forth in this section are not enforceable under applicable law, Customer will inform CodiQ in writing in each instance prior to engaging in the activities set forth above.
Each party represents and warrants that it has full corporate power and authority to execute this Agreement and to perform its obligations hereunder; and that all corporate action necessary for the authorization, execution, delivery and performance of this Agreement by it have been taken. CodiQ represents and warrants that, to its knowledge, the Solution does not infringe the intellectual property rights of any third party. Customer represents and warrants that the Customer Content (a) does not infringe the intellectual property rights of any third party, (b) is not subject to any restrictions by third parties, (c) does not and shall not contain any defamatory, libelous, obscene or other harmful or offensive content; and (d) does not and shall not violate any applicable law or regulation.
- Intellectual Property.
Subject to the aforesaid licenses, CodiQ has all right, title and interest in and to the Solution and Services, including all enhancements, improvements and modifications thereof, and all right, title and interest in and to Deliverables, as well as all intellectual property rights in all of the foregoing (Collectively, the “CodiQ IP”). To the extent that the ownership of the CodiQ IP does not already vest with CodiQ, the Customer hereby assigns (and will assign) all right, title and interest in and to the CodiQ IP to CodiQ and waives (and will waive) all moral rights therein and thereto. Should the Customer and/or any User provide CodiQ with any feedback regarding the Solution, Services and/or Deliverables, CodiQ may use all such feedback without restriction and shall not be subject to any non-use obligations in respect of such feedback.
Customer and/or its licensors, as applicable, are the exclusive owners of Customer Content. Customer hereby grants to CodiQ a royalty free, non-exclusive license to use, access and permit personnel on its behalf to use and access, the Customer Content solely for the purpose of providing the Services.
Either party (“Disclosing Party”) may disclose to the other party (“Receiving Party”) certain confidential or proprietary information of the Disclosing Party (“Confidential Information”). The Receiving Party agrees to keep confidential and not disclose or use any Confidential Information except in order to comply with its obligations in the Agreement, and all subject to applicable law. Confidential Information shall not include information that the Receiving Party can show: (a) was already lawfully known to the Receiving Party, (b) was independently developed by the Receiving Party without access to or use of Confidential Information, (c) was received from any third party without restrictions, (d) is publicly and generally available, free of confidentiality restrictions, or (e) is required to be disclosed by court order or law, provided that the Receiving Party provides the Disclosing Party with prompt notice of such requirement and cooperates (at the expense of the Disclosing Party) in order to minimize such requirement, to the fullest extent permitted by such order or applicable law. The Receiving Party shall restrict disclosure of Confidential Information of the Disclosing Party to those of its employees and/or independent contractors and/or any third parties on its behalf, with a reasonable need to know such information for the purposes outlined herein. For the avoidance of doubt: the terms of this Agreement are the Confidential Information of both parties. The Customer Content is the Confidential Information of the Customer. The confidentiality obligations hereunder shall survive indefinitely following the termination or expiration of the Agreement for any reason. Following the termination or expiration of this Agreement, the Receiving Party shall, at Disclosing Party’s discretion, return or destroy any Confidential Information in its possession or control and provide the Disclosing Party written confirmation thereof; provided that: (i) one copy of any information may be maintained for audit and/or regulatory purposes in accordance with applicable law, and (ii) Receiving Party will not be required to destroy or return information that is contained on back-up media and other storage devices that are not readily accessible in the ordinary course of business. Such retained information shall continue to be subject to the foregoing obligations, for as long as such information is in Receiving Party’s possession or control. Confidential Information may be disclosed as part of, or during negotiations of, any merger, sale of company shares and/or assets or acquisition and provided that any recipients are subject to reasonable confidentiality undertakings no less stringent than those set out herein.
12.1. CodiQ Indemnification Obligations. CodiQ shall defend, indemnify and hold Customer harmless from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys’ legal fees) which Customer may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party against Customer arising from any claims that the Solution infringes the intellectual property rights of a third party. CodiQ shall not have any obligation or liability to the extent any claim is the result of (a) Customer’s actions, omissions or breach of this Agreement, and/or (b) the circumstances described in section 15.3 herein. If the Solution shall be the subject of an indemnifiable claim, or CodiQ reasonably believes that the Solution shall be the subject of an indemnifiable claim, CodiQ may terminate this Agreement with 90 days written notice if modification of the Solution to be non-infringing or compliant with applicable law is not reasonably practical.
12.2. Customer Indemnification Obligations. Customer shall indemnify, defend and hold harmless CodiQ and its respective employees, representatives and agents, from and against any third party claims and proceedings, and related loss, damage, liability and expense (including reasonable legal costs), arising out of or resulting from the infringement by Customer of a third party’s intellectual property, confidentiality or privacy rights relating to the information provided by it in connection with this Agreement, including the Customer Content.
12.3. Procedure. The obligations of either party to provide indemnification under this Agreement will be contingent upon the indemnified party (i) providing the indemnifying party with prompt written notice of any claim for which indemnification is sought, (ii) reasonably cooperating with the indemnifying party (at the indemnifying party’s expense), and (iii) allowing the indemnifying party to control the defense and settlement of such claim, provided that no settlement may be entered into without the consent of the indemnified party if such settlement would require any action on the part of the indemnified party other than to cease using any allegedly infringing or illegal content or services. Subject to the foregoing, an indemnified party will at all times have the option to participate in any matter or litigation through counsel of its own election at its own expense.
CODIQ EXPRESSLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES IN RESPECT OF THE SOLUTION, DELIVERABLES AND SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. CODIQ DOES NOT MAKE ANY WARRANTY IN RESPECT OF THE USE OF THE DELIVERABLES AND EXPRESSLY DISCLAIMS ALL RESPONSIBILITY ARISING FROM SUCH USE. CODIQ DOES NOT GUARANTEE THE SOLUTION WILL BE OPERABLE AT ALL TIMES OR DURING ANY DOWN TIME (1) CAUSED BY OUTAGES TO ANY PUBLIC INTERNET INFRASTRUCTURE, NETWORKS OR SERVERS, (2) CAUSED BY ANY FAILURES OF THIRD PARTY EQUIPMENT, SYSTEMS OR LOCAL ACCESS SOLUTION, OR (3) FOR PREVIOUSLY SCHEDULED MAINTENANCE.
- Limitation of Liability.
14.1. IN NO event SHALL EITHER PARTY (OR ITS DIRECTORS, OFFICERS, AFFILIATES, AGENTS OR EMPLOYEES) HAVE ANY LIABILITY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATING TO THE SERVICES AND/OR DELIVERABLES.
14.2. THE ENTIRE LIABILITY OF EITHER PARTY (OR ITS DIRECTORS, OFFICERS, AFFILIATES, AGENTS OR EMPLOYEES) UNDER THE AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT THE CUSTOMER HAS ACTUALLY PAID TO CODIQ IN RESPECT OF THE SERVICES IN THE 12 MONTHS PRIOR TO THE APPLICABLE CLAIM. THE FOREGOING LIMITATIONS SHALL NOT APPLY IN CASE OF FRAUD, MISCONDUCT, AN INTENTIONAL BREACH OF THE AGREEMENT, OR IN CONNECTION WITH THE PARTIES’ INDEMNIFICATION OBLIGATIONS.
14.3. CODIQ WILL HAVE NO LIABILITY, WHETHER FINANCIAL, LEGAL OR OTHERWISE, FOR DAMAGES OR LOSSES TO THE EXTENT SUCH DAMAGES OR LOSSES ARISE, IN WHOLE OR IN PART, OUT OF (I) THE DELIVERABLES; (II) THE COMBINATION, OPERATION OR USE OF THE SOLUTION, DELIVERABLES AND/OR SERVICES WITH ANY OTHER SOFTWARE, HARDWARE, APPLICATION OR PROCESS WHERE THE SOLUTION AND/OR SERVICES WOULD NOT BY THEMSELVES BE INFRINGING; (III) COMPLIANCE WITH DESIGNS, DATA, MATERIALS, INSTRUCTIONS OR SPECIFICATIONS PROVIDED BY CUSTOMER; (IV) USE OF THE SERVICES BY CUSTOMER AND/OR USERS IN VIOLATION OF THIS AGREEMENT; OR (V) THE USE OF THE CUSTOMER CONTENT.
- Force Majeure.
CodiQ will not 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 occurrence beyond its reasonable control provided that CodiQ party makes all reasonable efforts to comply with its obligations despite the occurrence. CodiQ shall, as soon as reasonably practicable, notify the Customer of the occurrence of a Force Majeure event and its expected duration and impact on its performance under the Agreement.
- Term and Termination
The Agreement shall become effective upon the date listed in the Order Form and continue to be in effect for a period of 1 year thereafter (the “Initial Term”). The Agreement shall automatically renew for consecutive 1 year periods, unless terminated by either party with prior written notice of 30 days before the end of the Initial Term or any consecutive renewal periods. The Initial Term and any consecutive renewal period shall be collectively referred to as the “Term”. Except as otherwise set forth herein, each party may terminate this Agreement: (a) immediately in case of breach by the other party by written notice to the breaching party, provided such breach has not been cured within thirty (30) days of being notified thereof; or (b) 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, or (iii) files, consents to, or acquiesces in a petition seeking relief or reorganization under any bankruptcy or insolvency laws.
- Effects of Termination.
Upon termination of the Agreement for any reason Customer shall cease the use of the Solution and Services. Sections 3, 6.3 – 6.6, 8, 9, 11, 12, 13, 14, 16, 17, 18 and 19 will survive expiration or termination of this Agreement for any reason.
CodiQ shall have the right to include a reference to the Customer, its official name and logo on its website, marketing literature, labeling and in its promotional materials.
19.1. Notices. Any and all notices and communications hereunder shall be in writing and shall be deemed to have been duly given when delivered personally or by mail or courier or, with respect to Customer, to the email address of Customer provided to CodiQ, including without limitation, upon registration.
19.2. Relationship of Parties. CodiQ and the Customer, including any of its Users, are and intend to remain independent parties. Nothing contained in this Agreement shall be deemed or construed to create the relationship of principal and agent or of partnership or joint venture, and neither party shall hold itself out as an agent, legal representative, partner, subsidiary, joint venturer, servant or employee of the other.
19.3. Entire Agreement; Modification, Amendment, Waiver; Severability. The Agreement and its exhibits constitute the entire and sole agreement and understanding between the parties hereto with respect to the subject matter hereof and supersede any prior or contemporaneous understanding, agreements, representations or warranties, whether oral or written, with respect to the subject matter. No party shall be deemed to have waived compliance by any other party with any provision of the Agreement unless such waiver is in writing, and the failure of any party at any time to enforce any of the provisions of the Agreement shall in no way be construed as a waiver of such or any other provision and shall not affect the rights of any party thereafter to enforce such provisions in accordance with their terms. No waiver of any breach of any provision of the Agreement shall be deemed the waiver of any subsequent breach thereof or of any other provision of the Agreement. In the event that any provision of the Agreement is held invalid or unenforceable in any circumstances by a court of competent jurisdiction, such section shall be interpreted to give maximum effect to its terms as possible under law, and the remainder of the Agreement, and the application of such provision in any other circumstances, shall not be affected thereby.
19.4. Assignment; Successors. The Customer shall not assign any of its rights or obligations hereunder without the prior written consent of CodiQ, and any assignments in violation of the foregoing shall be void. CodiQ may assign its rights or obligations hereunder.
- Governing Law.
The Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Israel without regard to principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods is hereby disclaimed. Any action, suit or other proceeding arising under or relating to the Agreement shall be brought in a court of competent jurisdiction in the city of Tel-Aviv, and the parties hereby consent to the sole jurisdiction of such courts. Notwithstanding the foregoing, CodiQ may seek injunctive relief in any jurisdiction in order to enforce the Agreement.