CUSTOMER LICENSE AGREEMENT

This Agreement (the “Agreement”) applies to and governs the use of SensePay- a proprietary solution developed by SensePass to facilitate payment to businesses via payment applications, e-wallets and other financial services (the “Service”).

These terms below are a binding agreement between the individual or entity identified during registration to the Service (“Customer”) and SensePass Ltd. and any of its affiliates (“SensePass”, “we”, “us”, “our”).

In case of an entity, the individual signing-up to the Service for the entity confirms that they have the proper authority to legally bind the entity to this Agreement. They also confirm they agree, on behalf of that entity, to be contractually bound by this Agreement.

If you do not agree to the terms of this Agreement, you may not access or use the Service in any way.

Each of SensePass and the Customer is hereinafter referred to as a “Party” and, together, as the “Parties”.

1. The Service- SensePay

SensePass has developed a proprietary solution comprised of software and/or hardware, which enable Customer to accept, manage and monitor payments from its clients via mobile payments applications, e-wallets and other financial services. The Service includes: (1) the Terminal Component Software- which allows Customer to connect with a mobile payment application or e-wallet; (2) the BackOffice Software- which enables Customer to manage and monitor the payment transactions which are processed through the SensePay service; and (3) Hardware- any hardware devices that SensePass makes available to the Customer during the term of the Agreement for the operation of the Service.

2. License Grant

Subject to the terms of this Agreement, the Customer’s payment of the applicable Fees and the scope of license set forth below, SensePass hereby grants Customer a limited, non-exclusive, non-transferable, and non-sublicense-able license, to use the Service during the Term.

3. License restrictions and limitations

Except as expressly provided herein, you may not, and may not allow others to:

• use, or provide to third parties, the Service or any part thereof including by reselling, licensing, renting, leasing, transferring, lending, timesharing, assigning or redistributing the Service or any part thereof;
• reverse engineer, decompile, or disassemble the Service, or any part thereof;
• modify, adapt, translate or revise the Service, or any part thereof, or otherwise use parts, portions or elements of the Service, or create derivative works based on the Service, or any part thereof, except as expressly allowed by the SensePass;
• breach any security or licensing mechanism of the Service or any part thereof, or identify or attempt to identify any security vulnerabilities therein;
• work around or circumvent any technical limitations in the Service or any part thereof;
• use any tool or other means to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Service or any part thereof;
• interfere with, circumvent, manipulate, impair or disrupt the operation, or the functionality of the Service;
• use the Service in order to develop, or create, or permit others to develop or create, a similar or competitive product or Service;
• Use the Service for any activity that constitutes, or encourages conduct that would constitute, a criminal offense, give rise to civil liability or otherwise violate any applicable law.

 

4. Customer obligations
   • Assistance. Customer shall grant to SensePass an access to Customer’s premises, products and equipment, and any necessary information as may be necessary or appropriate for SensePass to perform its obligations under this Agreement. To the extent that Customer fails to provide the foregoing, SensePass shall be excused from the performance of its obligations hereunder, insofar as such performance is frustrated by the Customer’s failure to so provide the foregoing.
   • Output Data. Customer assumes sole and exclusive responsibility: (i) for all acts or omissions, that the Customer or others on its behalf engage in, in response to the Output Data; (ii) to thoroughly review the Output Data frequently, check for any alerts or warnings issued by the Software, address the findings specified in the Output Data and determine what actions are appropriate in light thereof; and (iii) to carry out such actions as the Customer deems appropriate as a result of the Output Data. SensePass has no responsibility or liability, regarding Customer’s reliance upon, or use of, the Output Data, Customer’s actions or omissions in connection with the Output Data, or any consequences resulting therefrom.

 

“Output Data”- shall mean any and all reports, alerts, notices and other types of information and data that the Service may generate.

• Compliance with this Agreement. Customer must ensure that the individuals that it designates to use the Service for the benefit of the Customer (the Customer or its employees and anyone else operating on its behalf, hereinafter: “Users”), fully comply with the terms of this Agreement. The Customer will be liable to the SensePass for all acts or omissions of its Users in connection with the Service, as though the Customer itself had performed those acts or omissions.
• Compliance with laws. Customer undertakes that its use of the Service at all time, shall comply with all applicable laws, rules and regulations, including export control laws, and data protection laws. Customer may not use the Service for any activity that constitutes, or encourages conduct that would constitute, a criminal offense, give rise to civil liability or otherwise violate any applicable law.

5. Non-Competition

During the Term and for a period of three (3) years following termination of this Agreement, Customer shall not, directly or indirectly through its contractors and/or affiliates, without the prior written consent of SensePass, (i) compete or assist others to compete with SensePass by  developing, manufacturing, distributing or commercializing software and/or hardware competing with the Service; (ii) enter into any agreements and/or receive or perform any services for developing, manufacturing, distributing or commercializing software and/or hardware competing with the Service, including, but not limited to, developing such software or manufacturing such hardware independently or through others, for any purpose.

6. Fees
   • In consideration of the rights granted to Customer under this Agreement, Customer will pay all applicable Fees, in accordance with the levels, schemes, amounts and payment terms set forth in this Agreement or as otherwise separately conveyed to you in writing by SensePass.
   • All Fees are quoted in US Dollars, unless expressly stated otherwise.
   • All Fees payable pursuant to this Agreement are exclusive of taxes or other governmental charges, wire fees, or transaction charges. Customer is responsible for the payment of all such applicable taxes or charges and will remit grossed-up payments, to include all such taxes, fees and transaction charges. In the event that SensePass is legally obligated to collect or deduct taxes, they are entitled to fully invoice Customer for the corresponding tax. As soon as possible following a request by SensePass, Customer will provide the taxation documentation necessary for processing the Fees.
   • All Fees paid under this Agreement are non-refundable. Customer is responsible for paying all applicable Fees, whether or not it has actively used the Service.
   • Without derogating from any other rights and remedies available to SensePass under the applicable law, Fees overdue for more than seven (7) days will accrue interest at the rate of one-half of one percent (0.5%) per month or part thereof, compounded monthly on the linked capital or at the highest rate permitted by law, whichever is lower, from the due date until the date of actual payment. Customer agrees to reimburse SensePass or the Affiliate (as applicable) for all legal costs and attorney fees SensePass or the Affiliate (as applicable) incurs in the course of collecting overdue Fees.
   • Failure to settle any overdue fee within thirty (30) calendar days of its original due date will constitute a material breach of the Agreement. If you fail to settle overdue subscription Fees within thirty (30) calendar days of their original due date, we may suspend the provision of the Service to you until you settle the overdue Fees.
   • Customer may not withhold or set-off any payment from any Fees due to SensePass.
7. Intellectual property & Feedback.
   • Intellectual property. The Service is licensed, not sold, to you. Except for the limited license and rights granted to Customer pursuant to section ‎2 above, this Agreement does not grant or assign to Customer, any other license, right, title, or interest in or to the Service or any part thereof. 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 any part thereof, including computer code, graphic design, layout and the user interfaces of the Service are and will remain at all times, owned by SensePass or its licensors.
   • Use of Customer Trademarks. SensePass may identify Customer as a customer and indicate Customer as a user of the Service on its website and in other online or offline marketing materials and press releases. Customer hereby grants SensePass a worldwide, non-exclusive, non-transferable, royalty-free and free of charge, license, to use Customer’s name, logo, and website URL on its website and in other online or offline marketing materials relating to the Service.
   • Feedback. Customer hereby grant SensePass a perpetual, irrevocable, worldwide, free of charge, sublicensable and transferable license to use, copy, reproduce and exploit any Feedback (as defined below) that Customer or its Users communicate to SensePass during the Term in any way and every way, without compensation by SensePass, without any obligation of SensePass to report on such use of Feedback, and without any other restriction. Feedback will not be considered your confidential information.

“Feedback” refers to any suggestion or idea for any of SensePass’ products or services, including without limitation all intellectual property rights in any such suggestion or idea.

8. Confidentiality & Privacy
   1. Customer acknowledges that all technical and non-technical information and materials regarding the Service, its functionality, capabilities, structure, design and all other details related thereto, as well the details of this engagement and its performance, all constitute proprietary confidential information of SensePass. Customer will treat all such information as confidential in a manner no less protective than it uses to protect its own similar assets, but in no event less than reasonable care. Customer will not disclose such Confidential Information, or have them disclosed, directly or indirectly to any third party without SensePass’ prior written consent, unless Customer is required, or reasonably believe that it is required, by law, to share or disclose SensePass’ confidential information. in which case, to the extent legally permitted, Customer will give SensePass prompt notice of the requirement prior to such disclosure.
   2. SensePass will take precautions to maintain the confidentiality of Customer’s confidential information it is exposed to during the provision of the Service to Customer in a manner no less protective than SensePass uses to protect its own assets, but in no event less than reasonable care.
   3. We respect your privacy. SensePass Services shall be done only under and in accordance with SensePass privacy policy (“Privacy Policy”) which is incorporated herein by reference. By accepting these terms you acknowledge that you have read and consent to our Privacy Policy.
9. Hardware
   • Unless otherwise expressly stated in this Agreement or as otherwise separately conveyed to Customer in writing by SensePass, then notwithstanding Customer’s possession or physical control of the Hardware, the exclusive ownership of all Hardware provided to Customer under this Agreement, is and will remain at all times, with SensePass or its licensors. Customer may not sell, dispose of, rent, or transfer any Hardware or otherwise grant any rights therein to any third party.
   • Upon the termination or expiration of the Agreement, Customer must return the Hardware back to SensePass.
   • The risk of physical damage to or loss of the Hardware shifts to Customer upon the Hardware being handed over to the Customer’s possession. The Customer must maintain the Hardware at its premises, in a location adequately protected against unauthorized access, break-in, theft, physical hazards and harmful environmental conditions. Customer must use and handle the Hardware carefully and strictly in accordance with the instructions conveyed by SensePass. The Customer may not deal with the Hardware in any manner which is not expressly permitted by SensePass, including dismantling it, tampering with it, or conducting any repair, alteration, adaptation, addition thereto or derogation therefrom.
   • Customer hereby expressly waives any right of lien, or similar withholding rights, in or to the Hardware. The foregoing sentence will not apply if the Parties expressly agree in writing that the ownership in the Hardware is transferred to the Customer.
   • SensePass’ support and maintenance service will apply to and cover malfunctions in, or damage to, the Hardware. Any needed or requested repair and replacement of the Hardware, is subject to the terms and conditions of the Service pursuant to the SLA attached to this Agreement as Exhibit A.
10. Term and termination
    • This Agreement commences on the date it is signed by both Parties and shall continue indefinitely unless terminated in accordance with the provisions below.
    • Either Party may terminate this Agreement upon a thirty (30) days prior written notice to the other Party.
    • Upon termination of this Agreement for any reason whatsoever, Customer must: (a) cease any and all use of the Service and cause all other Users of Customer to cease any and all use of the Service; (b) permanently uninstall the Service from all computers and other devices in its possession or control; (c) permanently delete all other copies of the Service in its possession or control; and (d) return all Hardware to SensePass. Customer shall provide SensePass with written confirmation of its fulfilment of these obligations.
    • Notwithstanding the above, SensePass may terminate this Agreement immediately at any time in the event of a material breach of this Agreement by Customer. SensePass’ right to such termination will be, in addition to, and not in lieu of, any equitable or other remedies available to SensePass. Upon such termination, section 10.3 shall apply.
    • Any provision of this Agreement, that by its nature ought to survive the termination of this Agreement, including sections 5-9, 10.3, 11-15, ‎will so survive and continue to bind in full force and effect following such termination.
11. Support and Maintenance
    • SensePass will use reasonable efforts to have the Service operate properly. However, as a Service that relies on third party networks, systems, infrastructure, hardware and other software, SensePass does not guarantee that the Service will operate in an uninterrupted or error-free manner, or that it will always be available, free from errors or omissions, malfunctions, bugs or failures, including, but not limited to, hardware failures, software failures and communication failures. If SensePass receives notice of any failure or malfunction, or if SensePass identifies them by itself, SensePass will endeavor to regain the Service’s full functionality as soon as practicable, pursuant to the provisions of this section. However, such incidents will not be considered a breach of this Agreement.
    • Customer acknowledges that SensePass may, upon coordination with the Customer, suspend the operation of the Service, for periodic maintenance purposes.
    • During the Term, and subject to the terms and conditions of this Agreement, SensePass, either directly or with the assistance of other third parties, will provide technical support for questions, problems and inquiries regarding the Service, pursuant to the SLA attached to this Agreement as Exhibit A.
    • During the Service Subscription Period, and subject to the terms and conditions of this Agreement, SensePass either directly or with the assistance or other third parties, will provide Customer with such updates to the Service (which may add to, improve or enhance features and capabilities of the then-current version of the Service), to the extent that we issue such updates on ‘general release’ to all customers. SensePass, at its sole discretion, will determine the frequency and scope of such updates.
12. Disclaimers

THE SERVICE PROVIDED “AS IS”. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SENSEPASS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SERVICE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, USAGE OF TRADE, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, EXPECTED RESULT, QUALITY, TITLE, PERFORMANCE, SECURITY OR COMPATIBILITY. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICE, WHETHER MADE BY SENSEPASS, A REPRESENTATIVE OR OTHERWISE, WHICH IS NOT EXPRESSLY PROVIDED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY SENSEPASS FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF SENSEPASS WHATSOEVER.

13. Limitation of liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND OTHER THAN DAMAGES RESULTING FROM BREACH OF SENSEPASS’ CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, SENSEPASS AND ITS EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON THEIR BEHALF, WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, STATUTORY OR PUNITIVE DAMAGES, LOSSES (INCLUDING LOSS OF PROFIT AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT, NEGLIGENCE, CONTRACT, OR IN ANY OTHER FORM OR THEORY OF LIABILITY, ARISING FROM, OR IN CONNECTION, WITH THIS AGREEMENT OR THE SERVICE, EVEN IF SENSEPASS IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, LOSS, COSTS, EXPENSES OR PAYMENTS. WITHOUT DEROGATING FROM THE AFORESAID, IN NO EVENT WILL SENSEPASS’S CUMULATIVE LIABILITY HEREUNDER EXCEED THE AMOUNT THE CUSTOMER HAS PAID TO SENSEPASS IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE DAMAGE.

14. Indemnification
    • Customer agrees to indemnify and hold harmless SensePass and its directors, officers, employees, and subcontractors, upon SensePass’ request and at Customer’s expense, from, and against, any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, arising from any third-party complaint, claim, plea, or demand in connection with Customer’s breach of any provision or representation in this Agreement.
    • If SensePass seeks indemnification from Customer, it shall provide Customer with (i) prompt written notice of any indemnifiable claim; (ii) all reasonable assistance and cooperation in the defense of such indemnifiable claim and any related settlement negotiations, at Customer’s expense; and (iii) exclusive control over the defense or settlement of such indemnifiable claim, provided, however, that SensePass may settle or reach compromise on any such claim without Customer’s consent, if and to the extent such settlement or compromise does not impose any liability (monetary, criminal or otherwise) on Customer. SensePass shall have the right to participate, at its own expense, in the defense (and related settlement negotiations) of any indemnifiable claim with counsel of its selection.
15. Audit

During the Term of this Agreement and for a period of two (2) years after termination of this Agreement, SensePass may conduct an audit to ensure Customer’s compliance with its obligations under this Agreement, upon a ten (10) days prior written notice to Customer, during Customer’s normal business hours, and no more than once per year. Customer shall cooperate with such audit and will provide SensePass all reasonably required information necessary in connection with such audit and with Customer’s use of the Service.

16. Governing law and Jurisdiction

Regardless of Customer’s jurisdiction of incorporation, the jurisdiction where Customer engages in business or where Customer or its Users access or use the Service from, this Agreement and Customer’s and Users’ use of the Service will be exclusively governed by and construed in accordance with the laws of the State of New York excluding any otherwise applicable rules of conflict of laws. Any dispute, controversy or claim which may arise out of or in connection with this Agreement or the Service, shall be submitted to the sole and exclusive jurisdiction of the Courts located in the Southern District of the State of New York Subject to the following sentence, Customer and SensePass, each hereby expressly consent to the exclusive personal jurisdiction and venue of such courts, and waive any objections related thereto including objections on the grounds of improper venue, lack of personal jurisdiction or forum non conveniens. Notwithstanding the foregoing SensePass may: (a) lodge a claim against the Customer pursuant to the indemnity clause above, in any court adjudicating a third party claim against SensePass; and ; and (b) seek interim or preliminary relief in any court with competent jurisdiction.

17. Miscellaneous
    • Customer may not assign or delegate this Agreement or any of its rights, performance or obligations hereunder, without SensePass’ prior written consent. Any purported assignment without SensePass’ prior written consent is void.
    • The relationship between Customer and SensePass is strictly that of independent contractors, and neither party is an agent, partner, joint venturer or employee of the other.
    • This Agreement constitutes the entire and complete agreement between Customer and SensePass concerning the subject matter herein. This Agreement supersedes 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 intent of the parties, and the remaining provisions will remain in full force and effect. Neither Party shall be liable for breach of this Agreement by act or omission if such act or omission is explicitly required by law.
    • This Agreement may be subsequently modified or amended by SensePass from time to time, at its sole discretion. SensePass may, but is not obligated to, send notice to Customer of such amendments. Amendments will take effect 7 days after their initial posting on SensePass’ website, unless such amendments are required in order to comply with legal requirements, in which case, the amendments will become effective immediately upon their initial posting, or as legally required. The latest version of this Agreement will always be accessible on SensePass’ website. Customer’s continued use of the Service after the effective date of the amended Agreement constitutes Customer’s consent to the amended Agreement.
    • A Party shall not, 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, as long as it informed the breaching Party of its alleged breach within the limitations time frame for such breach under the relevant statute. The waiver of any breach by a Party, will not be construed as a waiver of subsequent breaches or as a continuing waiver of such breach.

 

IN WITNESS THEREOF, the parties have executed this Agreement as of the Effective Date.

 

 

 

 

 

Exhibit A

Service Level Agreement (“SLA”)

SensePass will respond to and handle support requests and reported errors, bugs or malfunctions as set forth in this SLA subject to the following procedure and scheme:

1. Response Time

Severity Classification	Response Time
Critical Errors: a full shut down of the Service so that it cannot be used at all.	Immediate and up to 2 hours from receiving notice of the malfunction from Customer. SensePass shall use constant efforts to create a temporary and/or final solution that will allow use of the Service.
Serious Errors: partial or full shut down of the Service as a whole or of certain functions of the Service that are material to the operation of the Service.	Up to 5 hours from receiving notice of the malfunction from Customer. SensePass shall use constant efforts to create a temporary and/or final solution that will allow use of the Service during SensePass’ normal support hours detailed in section 2 below.
Minor Errors: Any error that does not have significant effect on the functionality or use of the Service by Customer.	Up to 2 business days from receiving notice of the malfunction from Customer. In the event an update or maintenance work is required, such update or maintenance work will be performed during the next scheduled maintenance or update to be performed and/or distributed to all customers of the Service.

2. SensePass’ Support Hours

Monday- Friday, 9am-6pm, except for national holidays as per US calendar.

3. Error Reporting
   • Reporting of Errors: Any reproducible error or malfunction for which correction is required shall be reported in writing to SensePass.
   • Error Reports: Errors shall be reported by using investigation reports (“Reports“) as defined below. All Reports shall be sent to SensePass by electronic mail or by an issue report web interface (as will be suggested by SensePass). Each Report shall state one Error only and shall contain the following information: An error code for the general classification of the Error in one of the three classes set out below; A description of the commands and procedures that reveal the Error; A description of the product hardware and software environment; Specification of release and version of the product in question; A short description of the Error; Examples of input; The resulting output; The expected output; Any special circumstances surrounding the discovery of the Error or relevant data. Since some bugs are not easily reproducible, SensePass will accept preliminary error reports and provide support in debugging, in such cases.
   • Customer’s undertaking: Before a Report is sent to SensePass, Customer undertakes to verify that the Error is reproducible, and collect all information necessary in accordance with the above. Customer will allow SensePass’ support personnel immediate physical and remote access to the system, as needed.
   • SensePass’ undertaking: For each Report received, SensePass undertakes to:
     • Confirm receipt of the Report by electronic mail or by an issue report web interface (as will be suggested by SensePass).
     • Analyze the Report, verify the existence of the Errors and classify the severity level in accordance with section 1 above.
     • Connect to the system remotely (or physically if necessary and applicable) to analyze and perform actions to maintain and fix the problem in accordance with section 1 above.

4. Telephone Consultation

SensePass shall, during normal business hours detailed in section 2 above, supply consultation and advice to Customer, directly over the telephone or any other remote communication channel that SensePass may propose. Answers will be given to questions regarding the use of The Solution and its installation, configuration and documentation.

5. Provision of Updates
   • SensePass will advise Customer of all Updates, as early as reasonably practicable.
   • Copies of all Updates shall be provided by SensePass to Customer free of charge when applicable after commercial release of such Update.
6. Customer’s Responsibilities
   1. Assistance: Customer shall grant to SensePass such access to the Customer’s premises, products and equipment, or its merchant customers, as may be necessary or appropriate for SensePass to perform its obligations under this Support Agreement. Customer will further grant SensePass such access to information by Customer’s personnel and third party network and other suppliers of Customer as may be necessary to enable SensePass to perform its obligations under this Support Agreement. Customer will cooperate with SensePass towards resolving Errors, including without limitation by providing as much details as available about the Error, and taking all such reasonable measures requested by SensePass in order to detect and provide further information with respect to each error. Customer will grant SensePass local and remote VPN access and permissions to Customer’s products, PoS system and equipment as may be necessary or appropriate for SensePass to perform its obligations under this SLA.
   2. Acknowledgement: Customer acknowledges that compliance with its undertakings hereunder is essential to enable SensePass to provide the support and maintenance services in accordance with SensePass’ undertakings hereunder, including without limitation, for SensePass’ compliance with the schedules and time-frames set forth above.