Please carefully read the following terms and conditions set forth below (the “SaaS Terms) before using the Platform, Fixel’s website (https://fixel.ai) (together with its subdomains, consents, marks, features, functionalities and services, the “Site”) and any and all services that are furnished by Fixel AI Inc. (together with its subsidiary Fixel Israel Ltd. and/or any of their affiliates, “Fixel”) to you (“You” or “Licensee”) in connection therewith (the “Services”), so that you are aware of your legal rights and obligations with respect to the Services.

By using the Services, you expressly acknowledge and agree that you are entering into a legal agreement with Fixel and have understood and agree to comply with, and be legally bound by, these SaaS Terms (collectively with any exhibit attached hereto and any supplementary document, the “Agreement”).

  1. Scope of Services. Fixel hereby grants, and Licensee hereby accepts, a worldwide, non-exclusive, non-transferable, revocable, limited, non-sub-licensable and non-assignable right to access the Fixel’s AI-based platform which provides audience segmentation tool for advertisers inside their ad platforms (“Platform”), during the Term (as defined below) (the “License”). The term “Platform” shall include the services provided by means of the Platform, and any documentation, updates, upgrades, modifications and/or improvements thereof all to the extent provided by Fixel hereunder. Licensee acknowledges that Fixel may update/upgrade the Platform from time to time, at its sole discretion. Licensee shall restrict access to the Platform solely to its authorized users and shall use all reasonable endeavors to prevent any unauthorized access or use thereof, and, in the event of any such unauthorized access or use, promptly notify Fixel.
  1. Reservation of Rights; Restrictions. All intellectual property rights in and to the Platform and Fixel’s Services and any part thereof, including all software, databases and other aspects and technologies related to the Platform and the Services and any and all derivatives, changes and improvements thereof are and shall remain exclusively owned by Fixel and/or its licensors. Except as expressly stated herein, this Agreement does not grant Licensee any rights to the Platform or Services. Licensee shall not, and shall not allow any third party to (i) copy, alter, merge, modify, adapt, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform or Services in any form or media or by any means (ii) attempt to decompile, or reverse engineer or discover the source code of the Platform; (iii) sell, share, sub-license, lease, assign, transfer the rights granted herein with any third party (including without limitation Licensee’s affiliates and subsidiaries); (iv) use the Platform to provide third parties with managed services or any other services; (v) access all or any part of the Platform in order to build a product or service which competes with the Services; (vi) make statements or representations concerning Fixel, its business, the Platform its use and/or fitness for a particular purpose; (vii) represent that it possesses any proprietary interest in the Platform or contents Fixel’s rights with respect to the Platform or Services. Licensee further undertakes not to take any actions that (a) would disable the Platform or impair in any way its operation; or (b) would prevent or interfere with Fixel’s or any of its user’s access to or use of the Platform or Services. For avoidance of doubt, the Platform constitutes a trade secret of Fixel and Licensee shall keep any and all non-public information with respect to the Platform under strict confidence.
  1. Licensee Data. As between the parties, Licensee owns and retains all right, title and interest in and to all data and information derived from Licensee’s uses of the Platform which data may include personal data of Licensees’ users (“Licensee Data”). Licensee hereby grants Fixel a license to Licensee Data hereunder including a license to store, record, transmit, maintain, and display Licensee Data only to the extent necessary for providing the Services. For the avoidance of doubt, Fixel (i) does not collect or hold any PII (Personally Identifiable Information), and (ii) manages all Licensee Data in its possession in accordance with the Fixel Privacy Policy (available at https://fixel.ai/privacypolicy). Licensee acknowledges and agrees that Licensee Data may be stored on external cloud servers operated and managed by global third party cloud service providers, as customary in the industry (i.e. Amazon, Azure etc.). Licensee further acknowledges and agrees that Licensee Data may be transferred or stored outside the country where Licensee and/or the authorized users are located in order to carry out the Services. Licensee shall maintain back up for Licensee Data and shall ensure that it is entitled to transfer the relevant data to Fixel so that Fixel may lawfully use and transfer the Licensee Data in accordance with this Agreement. Fixel shall be entitled to delete and destroy all copies of data once the Agreement is terminated with or without cause. Licensee represents and warrants to Fixel that (i) it has the right to use the Licensee Data and permit Fixel to use it for all purposes in connection with this Agreement; (ii) all Licensee Data has been and will be legally acquired in accordance with all applicable data protection laws and privacy standards; (iii) it shall not knowingly use the Platform in manner that is unlawful or infringes a third party’s intellectual property rights or privacy rights. Licensee acknowledges that it shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Licensee Data. Licensee Data shall constitute confidential information of Licensee and shall be used by Fixel in accordance with these SaaS Terms, provided however, that any information which: (i) is now or subsequently becomes generally available in the public domain through no fault of Fixel, (ii) was obtained from third party without restriction; and/or (ii) is independently developed by Fixel, shall not be considered confidential information of Licensee.  Notwithstanding anything in this Section 3 to the contrary, Fixel may, at its sole discretion, subject the provision of the Services to the execution of a Data Processing Agreement between the Parties (“DPA”) which shall govern the processing of personal data (as such terms are defined in Regulation (EU) 2016/679 of the European Parliament (GDPR)). In the event of a conflict between these SaaS Terms and the DPA, the order of precedence shall be as follows: (1) the GDPR and any other applicable regulation regarding the processing of personal data; (2) DPA; (3) the SaaS Terms.
  1. Support and Documentation. Fixel shall provide documentation of the Platform at https://docs.fixel.ai or such other location as shall be made known to Licensee. The Platform is provided as a service (SaaS), solely with such support and maintenance plan as may be commercially agreed between Licensee and Fixel (e.g. in a valid and binding service agreement, work order etc.), and Licensee waives any demand that Fixel provide any support or maintenance services in connection with the Platform beyond those commercially agreed and paid for by the Licensee.
  1. Limited Warranty. Licensee acknowledges that the Services may be based on information, data, requirements and content that are provided by Licensee. Fixel represents that the Platform shall substantially perform in accordance with its functional specifications (subject to any updates/upgrades of the Platform to the extent implemented by Fixel). Fixel does not warrant, however, that use of the Platform will be uninterrupted or that the operation of the Platform will be error-free or secure. Fixel shall make reasonable efforts to repair any errors in the Platform within the scope of its standard support and maintenance of the Platform. LICENSEE ASSUMES SOLE RESPONSIBILITY FOR CONCLUSIONS AND DECISIONS MADE BY LICENSEE IN RELIANCE UPON ANY OUTPUT RESULTING FROM USE OF THE PLATFORM. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION ABOVE, THE PLATFORM IS PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL FIXEL BE RESPONSIBLE FOR ANY FACTORS AFFECTING PERFORMANCE OF THE PLATFORM OR SERVICES, WHICH ARE BEYOND ITS REASONABLE CONTROL INCLUDING, BUT NOT LIMITED TO, INTERRUPTION OF SERVICE DUE TO INTERNET CONNECTIVITY, THIRD PARTY SERVICE PROVIDERS AND THE LIKE.
  1. Professional Services. At Licensee’s written request and subject to a mutually agreed statement of work (“SOW”), Fixel may provide professional services to Licensee with respect to the Platform (“Professional Services”). In such event, Licensee shall first furnish Fixel with a written request detailing the nature of the required services and Fixel may, at its discretion, provide such Professional Services either directly and/or through a third party designated by Fixel. Fixel shall provide Licensee with a cost estimate, and subject to the Licensee’s approval of such cost estimate, the parties shall agree on an SOW which shall include the substance and timeframe of the Professional Services (i.e. specifications, milestones, costs and other specific terms). For the removal of doubt, it is hereby clarified that Fixel is under no obligation to render Professional Services to Licensee.
  1. Fees. The compensation for all Services (the “Fees”) shall be as set forth in the applicable Subscription Program elected by the Licensee on the Site (“Subscription Program”) and will remain in effect for the Term, unless otherwise agreed by the parties in a separate written agreement. The Subscription Programs offered by Fixel from time to time may be monthly (with automatic renewal), annual discounted, or otherwise. Payment shall be due within thirty (30) days of receipt of Fixel’s invoice. All payments shall be made in U.S. Dollars by wire transfer to an account designated by Fixel, or by any other means of payment we determine from time to time. Licensee is solely responsible for payment of any taxes resulting from the acceptance of the License or from the possession and use of the Platform (including, without limitation, sales or use taxes, VAT, employee-related taxes, intangible taxes, property taxes etc.). If any such taxes are required to be withheld, Licensee shall pay an amount to Fixel such that the net amount payable to Fixel after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement. Any payment or part thereof that is not paid when due shall bear interest at the rate of 1.5% per month (but no more than the maximum rate allowed by applicable law) and shall constitute sufficient cause for Fixel to immediately suspend performance, block Licensee’s access to the Services and terminate this Agreement.
  1. Indemnification. Licensee shall defend at its expense, indemnify and hold Fixel harmless from and against any and all finally awarded damages, expenses and liabilities incurred by Fixel and/or any affiliate thereof in connection with any and all third party claims, demands, or actions arising out of Licensee’s unauthorized use of the Platform, violation of applicable laws, including data processing regulations and/or arising out of Licensee’s Data and/or Fixel’s use thereof as permitted herein; provided that such claim did not result from Fixel’s wilful misconduct. As a condition to the indemnity set forth above, the indemnified party shall provide the indemnifying party prompt notice of any such claim made against it and grant the indemnifying party sole control of the defense in such claim.
  1. Use of Licensee’s Marks and Publication. Licensee hereby agrees that Fixel may use Licensee’s name and logo, subject to Licensee’s use policy as provided to Fixel, solely for marketing purposes and include Licensee’s name and logo in Fixel’s customers list published on Fixel’s website at https://fixel.ai , as well as in any relevant marketing material. Licensee grants the right to Fixel to publish a press release, if it will choose to, pending approval of wording by the Licensee. Licensee reserves the right to retract the rights given to Fixel under this section by written notification.
  1. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, LOSS OF USE, LOSS OF OR DAMAGE TO DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, ARISING FROM AND/OR RELATED TO THIS AGREEMENT, EVEN IF SUCH PARTY IS ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL FIXEL’S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE FEES PAID BY LICENSEE HEREUNDER DURING THE SIX (6) MONTHS PRECEDING THE EVENT.
  1. Term; Termination. The term for the Agreement shall be for as long as the Licensee subscribes to the applicable Subscription Program, or as otherwise agreed in writing by the Parties, unless earlier terminated in accordance with the termination provisions set forth herein (“Term”). Either party may terminate this Agreement at any time by giving written notice to the other party if: (i) the other party breaches a material provision of this Agreement and fails to cure the breach within thirty (30) days after being notified thereof or immediately if the breach is not capable of cure; (ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party; or any petition by or on behalf of such party is filed under any bankruptcy or similar laws. Notwithstanding any of the foregoing to the contrary, Fixel, in its sole discretion has the right to immediately terminate this Agreement, revoke the License and block Licensee’s access to the Services, with or without cause, if it has reason to suspect Licensee’s infringement of Sections 2 or 3; Upon termination of this Agreement for any reason whatsoever, Licensee will immediately pay all fees due and cease access and use of the Services and the Platform. Sections 2, 3, 7, 10, and 12 shall survive any termination of this Agreement.
  1. Miscellaneous
    1. Remedies. Without derogating from any other remedies available under law or in equity, Licensee acknowledges that violation of Fixel’s intellectual property (including breach of Section 2 herein) may cause irreparable harm and significant injury to Fixel that may be difficult to ascertain, and Fixel will have the right to seek and obtain immediate injunctive relief to enforce such rights without the necessity of proving actual damages and without the necessity of posting bond or making any undertaking in connection therewith.
    2. Assignment. This Agreement may not be assigned by Licensee without the prior written consent of Fixel. Fixel may assign this Agreement at its discretion.
    3. Governing Law. This Agreement shall be governed and construed under the laws of Israel. Any dispute between the parties will be submitted to the competent courts situated in Tel-Aviv.
    4. Entire Agreement. The parties agree that this Agreement is the complete and exclusive statement of the agreement between the parties, which supersedes all prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement.
    5. Waiver. Any waiver of any right or default hereunder shall be effective only if made in writing and in the instance given and shall not operate as or imply a waiver of any similar right or default on any subsequent occasion.
    6. Notices. All notices and other communications given or made pursuant hereto shall be in writing and shall be delivered to the addresses/fax/email as provided to the other party.