Saywhatt Software Agreement

This agreement (the “Agreement”) made pursuant to an Order Form (as defined below) constitutes a binding contract between Saywhatt Online Ltd. (“Saywhatt”, "we", "us", "our"), whose registered address is at 40 Sderot Chen, Tel Aviv, 6416701, Israel, or authorized distributors and sales representatives operating on its behalf (“Representatives”) and the organization identified in the Order Form and anyone on its behalf (“Client”).

WHEREAS, Saywhatt develops and offers a software-as-a-service generative AI live chat system, a web and virtual sales/sales assistant for retail stores and brands (the “Service), in accordance with the Saywhatt Service Privacy Policy and Data Processing Addendum which are incorporated herein; and

WHEREAS, Client is interested in using the Service for its individual and commercial use;

NOW THEREFORE, in consideration of the mutual covenants hereinafter, by Client agreeing to a Subscription Form which references this Agreement, the Parties agree as follows:

1. Definitions

1.1 “Client’s Website” means Client’s online store, accessed or visited by End Users, in which the Service is set to be implemented, accessible or provided through to such End Users.

1.2 “End User” means consumers who would like to access or use the Service and make purchases on the Client’s Website.

1.3 “Feedback” means information or content concerning enhancements, changes, or additions to the Service or other Saywhatt’s offerings, that are requested, desired or suggested by the Client.

1.4 “Subscription Form” means the document that Client has accepted or signed including the proposal document that Client has received from Saywhatt and is referenced, specifying, among others, the Client’s details, the duration of the provision of the Service to Client, the fees and payment terms applicable to this Agreement, the usage metrics, parameters and capacity limitations for the Client’s use of the Service, the integrations supported, timetables and rollout plan.

1.5 “Output Data” means reports, information, and data that the Service generates, provides or makes available to Client and to End Users based on the Client’s User Content.

1.6 "Service Data” means non-personal meta-data and analytics about how the Client, its Users and its End-Users use the Service, the performance of the Service, and the Service’s compatibility and interoperability.

1.7 “Term” means the period of this Agreement as specified in Section ‎7 below.

1.8 “User” means authorized users of Client, such as employees, agents and anyone on Client’s behalf who is authorized to use the Service.

1.9 “User Content” means the data Client provides to Saywhatt directly or through the Service, such as data about items offered on Client’s Website, data about End Users, and content, such as prompts, links, text, recordings and other media provided to Saywhatt and the Service.

2. Access to Use the Service and the Output Data

2.1 Subject to the provisions of this Agreement, Saywhatt grants Client and its Users, a worldwide access to use the Service and Output Data, from the Start Date specified in the Subscription Form and throughout the Term, strictly for the Client’s individual and commercial use, pursuant to the usage parameters, capacity limits and other metrics specified in the Subscription Form.

2.2 During the Term, Client may request to change the usage parameters, capacity limits and other metrics applicable to its use of the Service by mutual written agreement (email being sufficient) with Saywhatt or its Representatives. Where such changes are agreed, they are incorporated by reference into the Subscription Form and apply pursuant to the conditions mutually agreed to, including with respect to the new fees agreed to in light of the change.

2.3 Client must ensure that it and its Users fully comply with this Agreement and the Terms. Client shall be liable to Saywhatt for all acts or omissions of those that use and deal with the Service on its behalf, as though Client had performed those acts or omissions.

2.4 The Client and Saywhatt shall adhere to any other terms and conditions agreed to in under the Subscription Form.

2.5 Client covenants that Client and its Users will use the Service only in compliance with all applicable laws and regulations, this Agreement and any reasonable use policies or instructions issued by Saywhatt, including complying with applicable privacy laws, maintaining privacy notices and lawfully processing personal data of End Users.

2.6 Client is responsible for maintaining the confidentiality of their Service login credentials. Client is solely responsible for any decision-making based on the Output Data, and for all consequences resulting therefrom.

3. Restrictions.

3.1 Client and its Users shall not:

3.1.1 Sublicense, transfer or assign the Service or any part thereof to any third party, with or without consideration;

3.1.2 allow any third parties to use the Service, other than Client’s Users;

3.1.3 remove, or in any manner alter, any product identification, proprietary, trademark, copyright or other notices contained in the Service;

3.1.4 knowingly interfere with, burden or disrupt the Service’s functionality;

3.1.5 work around any technical limitations of the Service, or use any tool to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Service;

3.1.6 breach the security of the Service, identify, probe or scan any security vulnerabilities in the Service other than such activities performed in mutual agreement with Saywhatt;

3.1.7 knowingly send any virus, worm, Trojan horse or other malicious or harmful code or attachment;

3.1.8 use robots, crawlers and similar applications to scrape, harvest, collect or compile content from or through the Service.

3.1.9 Decompile, disassemble, reverse engineer, or otherwise attempt to identify the underlying source code of the Service, unless these activities are your guaranteed and non-waivable rights under applicable law, in which case you shall first notify Saywhatt of the steps you wish to take;

3.1.10 Access and use the Service in order to develop, or create, or permit others to develop or create, a product or service competing with the Service.

3.2 Saywhatt has no obligation to monitor that Client’s use of the Services complies with this Agreement but may elect to do so. Saywhatt may suspend the provision of the Services to the Client upon notice and good-faith discussion with the Client if Saywhatt reasonably believes that the Client is in violation of the foregoing in a manner detrimental to Saywhatt or to the proper operation of the Service.

4. Intellectual Property

4.1 The Service is a proprietary offering of Saywhatt, protected under copyright laws and international copyright treaties, patent law, trade secret law and other intellectual property rights of general applicability. The Service is offered to Client for use and access only in accordance with the terms of this Agreement and is not sold or licensed in any other way.

4.2 Except for Client’s limited access to use the Service during the Term, this Agreement does not grant or assigns to Client, any other license, right, title, or interest in or to the Service, or the intellectual property rights associated with them. All rights, title and interest, including copyrights, patents, trademarks, trade names, trade secrets and other intellectual property rights, and any goodwill associated therewith, in and to the Service and Service Data (but not the User Content and Output Data), including computer code, graphic design, layout and the user interfaces of the Service, whether or not based on or resulting from Feedback, are and will remain at all times, owned by, or licensed, to Saywhatt.

4.3 Client, its Users or its End-Users own all right, title and interest in and to User Content and Output Data and warrant to have all required licenses and permissions to provide the User Content or generate the Output data through the Service. Subject to any applicable law the Client, its Users or its End-Users are the owners of all rights, title and interest thereto. Without derogating from the foregoing, by using the Service, Client, its Users and its End-Users grant Saywhatt and its third-party service providers a license to use the User Content and Output Data, strictly for the proper provision of the Service to the Client.

4.4 Client may provide Saywhatt or its Representatives with Feedback, including information pertaining to bugs, errors and malfunctions of the Service, performance of the Service, content and accuracy of the Service, the Service’s compatibility and interoperability, and information or content concerning enhancements, changes or additions to the Service that Client requests, desires or suggests. Client hereby assigns, without charge, all right, title and interest in and to the Feedback to Saywhatt, including the right to make commercial use thereof, for any purpose Saywhatt deems appropriate.

5. Confidentiality and Data

5.1 ”Confidential Information” shall mean any and all information disclosed by one party (”Disclosing Party”) to the other (”Receiving Party”) regarding past, present, or future marketing and business plans, customer lists, lists of prospective customers, technical, financial or other proprietary or confidential information of the Disclosing Party, formulae, concepts, discoveries, data, designs, ideas, inventions, methods, models, research plans, procedures, designs, formulations, processes, specifications and techniques, prototypes, samples, analyses, computer programs, trade secrets, data, methodologies, techniques, non-published patent applications and any other data or information, as well as improvements and know-how related thereto.

5.2 Each Party herein must hold any Confidential Information in confidence using the same degree of care, but in no case less than a reasonable degree of care, that it uses to prevent the unauthorized dissemination or publication of its own confidential information. Receiving Party may use this Confidential Information only for the purpose of performing its obligations under this Agreement.

5.3 The obligations set forth in this section shall not apply to information that: (i) is now or subsequently becomes generally available in the public domain through no fault or breach on Receiving Party's part; (ii) Receiving Party can demonstrate in its prior established records to have had rightfully in Receiving Party's possession prior to disclosure of the same by the Disclosing Party; (iii) Receiving Party can demonstrate by written records that it had rightfully obtained the same from a third party who has the right to transfer or disclose it, without default or breach of confidentiality obligations; (iv) Disclosing Party has agreed in this Agreement or provided its prior written approval for use or disclosure; or (v) Receiving Party are required to disclose pursuant to a binding order or request by court or other governmental authority, or a binding provision of applicable law, provided that, to the extent permissible, Receiving Party provide the Disclosing Party notice of the requested disclosure as soon as practicable, to allow the Disclosing Party, if it so chooses, to seek an appropriate protective or preventive order.

5.4 Client acknowledges and agrees that Saywhatt and its Representatives will handle and use (by itself or by using third-party service providers) the Service Data as follows:

5.4.1 To provide the Service to Client, conduct administrative and technical activities necessary to maintain and provide the Service and to improve and customize the Service;

5.4.2 To conduct analysis or generate metrics related to the Service;

5.4.3 To bill and collect fees, enforce this Agreement and take any action in any case of dispute, or legal proceeding of any kind involving Client with respect to this Agreement;

5.4.4 To prevent fraud, misappropriation, infringements, and other illegal activities and misuse of the Service;

5.4.5 To develop and improve the Service on Client behalf.

5.5 Saywhatt and its Representatives may identify Client and indicate that Client is a user of the Service on Saywhatt’s website and in other online or offline marketing materials and press releases. Client hereby grants Saywhatt a worldwide, non-exclusive, non-transferable, royalty-free and free of charge, license, to use Client’s name, logo, and website URL on its website and in other online or offline marketing materials relating to the Service.

6. Fees

6.1 In consideration of the Service, Client will pay Saywhatt the fees specified in the Subscription Form according to the payment schemes, payment terms and payment cycles specified therein and as set out below.

6.2 All Client’s payment obligations to Saywhatt are non-cancelable and non-refundable. Client is responsible for paying all fees applicable to its subscription to the Service, whether or not it actively used, accessed or otherwise benefited from the Service.

6.3 Failure to settle any overdue fees within twenty one (21) calendar days of the original due date will constitute a material breach of this Agreement and, without limiting any remedies available to Saywhatt, Saywhatt may, following written notice to the Client: (i) terminate these this Agreement; or (ii) suspend performance of or access to the Service, until payment is made current. Late payments shall bear interest at the rate of six percent (6%) per annum. Client will reimburse Saywhatt for legal costs and attorney fees Saywhatt incurs in the course of collecting Client’s overdue fees.

6.4 Unless stated differently in the Subscription Form, fees are exclusive of any sales tax, VAT, withholding tax or other governmental charges or transaction charges. Each party is solely responsible for reporting its payments and Commission as income to the relevant tax authorities and paying all taxes applicable, as required by the applicable tax laws. Each party will promptly complete and submit to the other party all tax forms, tax certificates or tax authorizations reasonably necessary, under the applicable tax laws, to enable the other party to properly determine its tax obligations related to the payments and fees.

7 Term and Termination

7.1 This Agreement will be in effect for 1 month, and will be automatically renewed for additional periods, unless a party notifies the other party in writing (email being sufficient) of its desire not to renew the Agreement prior to the end of the then-current term (the “Term”).

7.2 Either party may terminate this Agreement for convenience upon notice to the other party, provided that if Client terminates the Agreement for convenience, all payments obligations shall remain in force for the subscription month in which the agreement was terminated.

7.3 Either party may terminate this Agreement in the event of a breach of this Agreement by the other party, where the breach remains uncured for fifteen (15) days, following written notice thereof from the non-breaching party to the breaching party, but if a breach is of a nature that cannot be cured, then the non-breaching party may terminate the Agreement immediately upon notice to the other party.

7.4 Either party may terminate this Agreement if the other party becomes or is declared insolvent or bankrupt, is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which proceedings are not dismissed within thirty (30) days of their commencement, makes an assignment for the benefit of creditors, or takes or is subject to any such other comparable action in any relevant jurisdiction.

7.5 Following termination of this Agreement:

7.5.1 Saywhatt will terminate Clients’ account on and access to the Service;

7.5.2 Each party shall delete the other party’s Confidential Information

7.5.3 Client shall cease any and all use of the Service;

7.5.4. Saywhatt will bill the Client for all then-outstanding Service fees (if any);

7.6 Sections ‎4, ‎5, ‎6, ‎7.4, ‎8.3-‎8.4, ‎9-‎11 of this Agreement will survive termination or expiration of this Agreement.

8. Warranty and Limitation of Liability

8.1 Saywhatt will endeavor to have the Service operate properly. However, as a service that relies on software, infrastructure, servers, third-party networks and continuous internet connectivity outside the control of Saywhatt, Saywhatt cannot guarantee that the Service will operate in an uninterrupted or error-free manner, or that it will always be available, free from errors, omissions or malfunctions. If Saywhatt becomes aware of any failure or malfunction, it shall attempt to regain the Service’s availability as soon as practicable. In addition, the Client acknowledges that the Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Saywhatt or by third-party providers, or because of other causes beyond Saywhatt’s reasonable control. Saywhatt shall provide advance notice by e-mail of any scheduled Service disruption.

8.2 Furthermore, Client agrees that Artificial intelligence and machine learning are rapidly advancing fields. Due to the probabilistic nature of machine learning, there may be instances where the Output generated by our Services does not accurately represent real people, places, or facts. The Client acknowledges and agrees, and must make sure its Users and End Users acknowledge and agree as follows:

The Output Data may be inaccurate or incomplete, and that the Output Data is not the sole source of truth or factual information,

The Service is not a substitute for professional advice.

It is Client’s responsibility to assess the accuracy and suitability of the Output Data for Client’s specific use case, including conducting human review when necessary. Client and its End Users use of the Output Data is solely at Client or its End Users’ risk.

Client and its End Users must not use any Output Data about a person for decisions that could have legal or material consequences for them, such as those related to credit, education, employment, housing, insurance, legal matters, or medical issues.

Saywhatt Service may generate incomplete, incorrect, or offensive Output Data that does not reflect Saywhatt's views. References to third-party products or services within the Output Data do not imply endorsement or affiliation with Saywhatt.

Due to the nature of machine learning technology with AI-generated answers based on the User Content, the Output Data from the Service may not be unique. Other users of the Service may receive Output Data that is similar or identical to the Output Data you received.

8.3 Client’s sole remedy for the breach of this warranty is that Saywhatt, once notified of the breach by the Client, will repair or replace the impacted Service within a reasonable time, so that it substantially conform to the features, abilities and functions specified in the Service’s documentation provided to the Client by Saywhatt.

8.4 The above warranty does not apply to the extent that any error or interruption in the Service results from: incorrect operation or use of the Service by the Client including any failure to follow the policies or instructions issued by Saywhatt; use of any of the Service other than for the purposes for which it is intended; use of any Service with other software or services or on equipment with which it is incompatible per Saywhatt-provided documentation; any act by any third party (excluding service or technology providers of Saywhatt unless they experience general issues of reduced performance or availability across their customer-base), such as unavailability of services, hacking or the introduction of any virus or malicious code, which could not have been prevented by Saywhatt using reasonable and customary safeguards and precautions; modifications to the Service (other than that undertaken by Saywhatt or at its direction); or any breach of this Agreement by the Client.

8.5 THE SERVICE IS PROVIDED FOR USE AS-IS. EXCEPT AS EXPRESLY SET FORTH ABOVE, SAYWHATT DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE AND THE OUTPUT DATA, INCLUDING ANY WARRANTIES OF CLIENTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, CONTINUOUS UNINTERRUPTED USE, NON-INFRINGEMENT, AND TITLE.

8.6 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT IN THE EVENT OF WILLFUL MISCONDUCT, FRAUD, DEATH OR PERSONAL INJURY, THE CLIENT’S PAYMENT OBLIGATIONS PURSUANT TO SECTION ‎‎6, INFRINGEMENT OF A SAYWHATT’S INTELLECTUAL PROPERTY RIGHTS, OR ANY OTHER LOSSES OF SAYWHATT WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW, THE TOTAL AND AGGREGATE LIABILITY OF SAYWHATT (INCLUDING ITS DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, REPRESENTATIVES AND ANYONE ACTING ON ITS BEHALF), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY, FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT AND THE SERVICE, OR THE OUTPUT DATA, SHALL BE LIMITED TO THE FEES ACTUALLY PAID TO SAYWHATT FOR THE SERVICE IN THE PRECEDING ONE MONTH PRIOR TO THE EVENT PURPORTEDLY GIVING RISE TO THE CLAIM OCCURRED.

8.7 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT IN THE EVENT OF WILLFUL MISCONDUCT, FRAUD, DEATH OR PERSONAL INJURY, THE CLIENT’S PAYMENT OBLIGATIONS PURSUANT TO SECTION 6, INFRINGEMENT OF SAYWHATT’S INTELLECTUAL PROPERTY RIGHTS, OR ANY OTHER LOSSES OF SAYWHATT WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW, SAYWHATT SHALL NOT BE LIABLE FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OR OF RELATING TO THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILTY.

9. Indemnity

9.1 Saywhatt shall defend and indemnify Client and its respective directors, officers, employees, consultants, successors and assigns from and against any claim by a third party alleging that the provision of the Service as contemplated under this Agreement, infringes a third party’s patent, copyright, trade secret or other intellectual property rights. Notwithstanding the foregoing, Saywhatt shall have no liability or obligation with respect to any claim for infringement relating to: (1) Client’s use of the Service in combination with other products not provided or endorsed by Saywhatt; (2) modifications or alterations of the Service which are not performed by Saywhatt or with its permission; (3) a breach or alleged breach by Client of its representations, under the Agreement.

9.2 Client agrees to indemnify and hold harmless Saywhatt and its directors, officers, employees, Representatives and subcontractors from, and against, any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, arising from a breach of this agreement, Client or anyone on its behalf use of the Service, or for any claim by a third party alleging of any wrongdoing of Client or that the User Content infringes a third party’s patent, copyright, trade secret or other intellectual property rights.

9.3 The indemnified party shall promptly notify the indemnifying party in writing of any claim for which it seeks indemnification hereunder; provided that the failure to provide such notice shall not relieve the indemnifying party of its indemnification obligations hereunder except to the extent of any material prejudice directly resulting from such failure. The indemnifying party shall bear full responsibility for, and shall have the right to solely control, the defense (including any settlements) of any such claim; provided, however, that (a) the indemnifying party shall keep the indemnified party informed of, and consult with the indemnified party in connection with the progress of such litigation or settlement and (b) the indemnifying party shall not have any right, without the indemnified party’s written consent (which consent shall not be unreasonably withheld), to settle any such claim in a manner that does not unconditionally release the indemnified party. At the indemnifying party’s request, the indemnified party will provide reasonable cooperation with respect to any defense or settlement.

10. Governing Law and Dispute Resolution

10.1 This Agreement and Client’s use of the Service will be exclusively governed by and construed in accordance with the laws of the State of Israel. Any dispute relating to this Agreement, or the Client’s use of the Service shall be under the sole jurisdiction and venue of the competent courts located in the Tel Aviv district in Israel.

11. Miscellaneous

11.1 Assignment. Client may not assign this Agreement without obtaining Saywhatt’s prior written consent. Saywhatt may assign this Agreement in its entirety, including all right, duties, liabilities, performances and obligations herein, upon notice to the other party and without obtaining the other party’s further specific consent, to a third-party. By virtue of such assignment, the assignee assumes Saywhatt’s stead, including all right, duties, liabilities, performances and obligations hereunder, and assignor shall be released therefrom.

11.2 Relationship of the Parties. The relationship between the Parties hereto is strictly that of independent contractors, and neither Party is an agent, partner, joint venturer or employee of the other.

11.3 Complete Terms and Severability. This Agreement constitutes the entire and complete agreement between the Parties concerning the subject matter herein and supersede all prior oral or written statements, understandings, negotiations and representations with respect to the subject matter herein. If any provision of this Agreement is held invalid or unenforceable, that provision shall be construed in a manner consistent with the applicable law to reflect, as nearly as possible, the original intentions of the Parties, and the remaining provisions will remain in full force and effect. This Agreement may be modified or amended only in writing, signed by the duly authorized representatives of both Parties.

11.4 No Waiver. Neither Party will, by mere lapse of time, without giving express notice thereof, be deemed to have waived any breach, by the other Party, of any terms or provisions of this Agreement. The waiver, by either Party, of any such breach, will not be construed as a waiver of subsequent breaches or as a continuing waiver of such breach.

11.5 Changes to the Terms. We may amend the Terms from time to time. In such case, we will notify the Client in advance of the amended Terms via the Service. The Client continued use of the Service after the effective date of the amended Terms constitutes its consent to the amended Terms. The latest version of the Terms will be accessible through the Service. If you do not accept the amended Terms, these Terms will be terminated (see Section 7.4).