This End User License Agreement (the “Agreement”) is made between you (both the individual using the License (defined below) granted under this Agreement and/or otherwise using the specific for SalesForce version of the Company’s platform for creating interactive on-screen ‘Walk-Thrus’, known by the name WalkMe for SalesForce, described at www.walkme.com( the “Software”) , and any legal entity on whose behalf such individual is acting) (hereinafter: “You” or “Your” or “Licensee”) and WalkMe Ltd. of 10HaUmanin Street, Tel Aviv (“Company”).
PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE ACCEPTING, AND/OR BEFORE USING THE SOFTWARE, OR ANY PART THEREOF. THE SOFTWARE IS COPYRIGHTED AND LICENSED (NOT SOLD). TAKING ANY STEP TO USE AND/OR LOG-IN TO THE SOFTWARE CONSTITUTES YOUR ASSENT TO AND ACCEPTANCE OF THIS AGREEMENT. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT. YOUR USE OF THE SOFTWARE IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST IMMEDIATELY CEASE ALL USE OF THE SOFTWARE.
(1) ALL USE OF THE SOFTWARE SHALL BE SUBJECT TO THE SPECIFICATIONS, FEES, FEATURES, SCOPE, DURATION AND SUCH ADDITIONAL TERMS AND CONDITIONS, WHICH ARE SPECIFIED UNDER THE CORRESPONDING COMPANY LTD ORDER FORM & AGREEMENT(“COMMERCIAL AGREEMENT”) WHICH YOU HAVE EXECUTED, SIGNED OR OTHERWISE AUTHORIZED IN CONJUNCTION WITH THE PURCHASE OF THE RIGHT TO USE SOFTWARE. THE TERMS AND CONDITIONS OF THE COMMERCIAL AGREEMENT ARE HEREBY INCORPORATED BY REFERENCE INTO THIS AGREEMENT, AND ANY REFERENCE TO “AGREEMENT” SHALL ALSO REFER TO THE COMMERCIAL AGREEMENT.
(2) IF YOU ARE USING THE SOFTWARE FOR EVALUATION PURPOSES, THEN THIS AGREEMENT DOES NOT APPLY TO YOU AND YOUR USE. YOUR USE OF THE SOFTWARE IS GOVERENED BY THE EVALUATION END USER LICENSE AGREEMENT WHICH CAN BE FOUND AT www.walkme.com.
In addition to capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings set forth opposite each one of them:
“Confidential Information” – means any proprietary information of either party (“Disclosing Party”) disclosed to the other party hereto (“Receiving Party”) including without limitation, information relating to either party’s products, technology, know-how, specifications, and concepts; as well as information of business and commercial nature, of either party,all in any form or medium whatsoever including in written, physical, digitalized, oral or visual form. “Confidential Information” does not include information that is: (a) public knowledge at the time of disclosure or thereafter becomes generally known other than through an act of negligence by the Receiving Party; (b) already known to the other Receiving Party prior to its receipt from the Disclosing Party, as evident by written records; (c) demonstrably independently developed at any time by the Receiving Party without use of the Confidential Information received hereunder; (d) rightfully obtained by the Receiving Party from other unrestricted sources, as evident by its written records; or (e) disclosed with the prior written permission of the Disclosing Party.
“Updates and New Version/s” – shall mean a modification to the Software, which incorporates corrections of errors and/or which provides functional or performance improvements or enhancements. Updates and New Version are usually designated as a change in the version number to the right of the decimal point (from x.1 to x.2).
2. Grant of License
2.1. Scope of License: Subject to the timely payment of applicable fees specified under the Commercial Agreement, and subject to the terms and conditions of this Agreement, Company hereby grants to Licensee, a non-exclusive, non-transferable, license, without right to sub-licenseto, for the term specified under the Commercial Agreement to use the Software internally in connection with Licensee’s own domains in the scope and manner specified under the Commercial Agreement, and subject to the payment of the corresponding consideration specified under the Commercial Agreement.
2.2. Restrictions: Other than the rights expressly licensed hereunder to Licensee, no other rights or interest whatsoever in the Software and/or any component thereof, are transferred or granted to Licensee. Without limiting the foregoing, Licensee may not: (i) use the Software for purposes other than the purposes explicitly set forth hereunder; (ii) reverse engineer or de-compile, modify or revise the Software or any part thereof, or create derivative works thereof; (iii) sub-license or resale the Software or any part thereof.
2.3. Certain portions of software provided with the Software (by way of example only- JQuery) may be subject to “open source” or “free software” licenses (“Third Party Code”). Such Third Party Software is not subject to the terms and conditions of this Agreement, but is licensed under the terms and conditions of the license that accompanies such Third Party Software. The Software should also always be used in strict accordance with any and all relevant (to the extent relevant) SalesForce agreements, terms and conditions.
3.1. During the a period of the first 12 months following the Effective Date, and during any 12 months period thereafter during the term of this Agreement, provided that the Licensee pays the applicable annual support and maintenance fees specified under the Commercial Agreement, the Company shall provide support for the Software as in the scope and manner specified under the Commercial Agreement. (“Support Services”).
3.2. The Support Services do not include providing services in the event the Software, or any part or component thereof: (i) has been subject to misuse, negligence, accident or improper installation, use or maintenance by anyone other than Company, or; (ii) has been modified or repaired by anyone other than Company; or (iii) has been used in a manner for which it was not intended, or not in compliance with its specifications; (iv) has been installed on, in attachment to or incorporated in products or environment other than as expressly set forth under this Agreement (including all exhibits thereto) or as otherwise expressly approved in writing by the Company; (v) has been damaged by any factor beyond Company’s reasonable control such as, but not limited to, power failure, electric power surges, or unsuitable third party components and the interaction of the Software therewith.
In consideration for the rights and services granted and/or to be provided underthis Agreement, Licensee shall pay to Company the fees specified under the Commercial Agreementin accordance with the payment and other terms specified thereunder.
5. Proprietary Rights. Except with respect to Third Party Code (as defined above), Company owns and shall retain all rights, including all intellectual property rights, in and to the Software, and any and all adaptations, modifications, enhancements, or improvements thereto made by any party, and in and to Company’s Confidential Information.To remove any doubt, any content developed by Licensee using the Software will be the property of the Licensee.
6. Indemnification Disclaimer of Warranty; Limitation of Liability.
6.1. Indemnification. Company shall defend, indemnify and hold harmless Licensee, from and against any and all damage, cost and expenses (including reasonable attorneys’ fees) finally awarded by a competent court, which incurred as a result of any claim, suit or proceeding brought against any of them based on a claim that the Software infringes upon intellectual property rights; provided that Licensee has notified Company promptly in writing of such claim, and gave the Company the authority, information, and assistance (at Company’s expense) to control and handle the claim or the defense of any such suit, proceeding or settlement. The above indemnification shall be the sole remedy to which Licensee shall be entitled in connection with the foregoing.
The foregoing in Section 6.1 shall not apply to the extent that the infringement arises: (i)from the use of the Software (or any component thereof) in a manner for which it was not intended or not authorized under this Agreement, or (ii) not in compliance with the documentation and specifications thereof, or (iii) where the infringement results from the combination of the Software with other Software of components, where the Company Solutions standing alone, would not have infringed third party’s rights, or (iv) where the Software was modified not by Company.
6.2. Limitation of Liability. OTHER IN EVENTS OF WILFUL MISCONDUCT,IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL,OR PUNITIVE OF ANY NATURE OR KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST REVENURES OR LOSS OF GOODWILL, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AGGREGATE FEES ACTUALLY PAID TO COMPANY HEREUNDER DURING THE 12 MONTHS PERIOD PRECEEDING THE RESPECTIVE APPLICABLE CLAIM.
Disclaimer of Warranty. LICENSEE ACKNOWLEDGE THAT, THE SOFTWARE AND ANY RELATED MATERIALS (IF ANY) PROVIDED TO LICENSEE UNDER OR IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS. THE ENTIRE RISK ARISING OUT OF USE OR USE AND PERFORMANCE OF SOFTWARE AND ANY SUCH RELATED MATERIALS IS BORNE BY LICENSEE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE SOFTWARE AND ANY RELATED MATERIALS, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. OTHER IN EVENTS OF WILFUL MISCONDUCT IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL,OR PUNITIVE OF ANY NATURE OR KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST REVENURES OR LOSS OF GOODWILL, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AGGREGATE FEES ACTUALLY PAID TO COMPANY HEREUNDER DURING THE 12 MONTHS PERIOD PRECEEDING THE RESPECTIVE APPLICABLE CLAIM.
7.1. Each Receiving Party, shall maintain confidential and not, without the Disclosing Partyprior consent, disclose to any third party any Confidential Information except to its own personnel, agents and officers having a legitimate need-to-know such Confidential Information for the purposes of this Agreement and who are bound by confidentiality obligations at least as protecting to Confidential Information as the terms of this Agreement, and the Receiving Party shall use Confidential Information only if and as required for the purpose of this Agreement.
7.2. The Receiving Party shall take all reasonably precautions necessary and appropriate to guard the confidentiality of the Confidential Information.
7.3. This Provisions of this Section7 shall survive the termination of this Agreement for any reason for a period of 3 (three) years thereafter.
8. Term and Termination
8.1. This Agreement shall come into force upon its execution and remain in force for the period specified under the Commercial Agreement, unless sooner terminated pursuant to the terms of this Agreement.
8.2. In case of a material breach of this Agreement by either Party not remedied within thirty (30) days from the other Party’s notice thereof, or in case either Party should become bankrupt or insolvent and such event had not been challenged within sixty (60) days of filing, the other Party shall have the right to terminate this Agreement with immediate effect.
8.3. Termination for Convinience.
(a) Licensee may terminate this Agreement at its discretion as follows:
(1) If the Commercial Agreement between Licensee and the Company is made and renewable on ANNUAL BASIS then: (i) the Licensee my upon prior written notice to the Company, no less than 60 days prior to the expiration of each applicable annual period notify the Company that it does not wish the Agreement to renew for an additional annual period, in which event the Agreement shall terminate and not renew at the end of the then in progress annual period; (ii) the Licensee may otherwise at any time following the initial 12 months period of the coming into force of the Comemrcial Agreement, terminate this Agreement upon 30 days prior written notice to the Company.
(2) If the Commercial Agreement between Licensee and the Company is made and renewable on a monthly basis (i.e. monthly payments) then the Licensee may oat any time terminate this Agreement upon 30 days prior written notice to the Company.
8.4. Effects of Termination: In any event of termination of this Agreement:
(a) All licenses and rights granted hereunder shall immediately expire and any and all use and/or exploitation by Licensee and/or on its behalf of the Software, and any part thereof, shall immediately cease and expire.
(b) Provisions contained in this Agreement, that are expressed or by their sense and context are intended to survive the termination of this Agreement shall so survive the termination, including without limitation Sections 5, 6.2, 7-10.
10.1. Any notice required or permitted to be given by either Party under this Agreement shall be in writing and may be delivered by courier, sent by registered letter, telefacsimile or electronic mail. When the notice is sent by telefacsimile or electronic mail, the sender shall confirm the notice by also sending the notice by courier or registered letter.
10.2. Neither Party may assign this Agreement in whole or in part without the prior written consent of the other Party. Such consent shall not be unreasonably withheld. Notwithstanding the above, such consent shall not be required, in connection with any merger, consolidation, reorganization or restructuring, or the sale of substantially all of a Party’s assets as long as such successor or assignee of this Agreement agrees in writing to be bound by this Agreement.
10.3. This Agreement shall be governed by and construed in accordance with the laws of Israel.