These Unisave Terms of Service (the “Agreement”) are an addendum to “Profisea’s Terms of Service” (the “AWS Resale Terms”) executed between Profisea Ltd. (“Profisea” or “Company”) and the individual or entity identified in any relevant purchase order/quotation which references the AWS Resale Terms (the “Customer’’ and the “Quotation“, respectively). The Company and the Customer shall each be referred to as a “Party” and together as the “Parties”.
1.1. This Agreement serve as an addendum to the AWS Resale Terms and is intended to supplement the AWS Resale Terms, when the Customer purchases Amazon Web Services (AWS) products and services (collectively, “AWS Services”) from Profisea (an authorized reseller of AWS) and the Quotation expressly states that the Fees under the AWS Resale Terms are based on Profisea’s Unisave service (“Unisave” or the “Service”, as further defined below).
1.2. Where this Agreement is in effect (as stated above), the provisions of this Agreement shall supersede any provisions of the AWS Resale Terms and the AWS Resale Terms shall be interpreted in accordance with this Agreement, mutatis mutandis. Otherwise, all of the terms, covenants, conditions and stipulations contained in this Agreement shall remain unchanged and continue to apply with full force and effect.
1.3. Terms not defined herein shall have the meaning set forth in the AWS Resale Terms.
1.4. The Customer may be required to use the Uniskai online platform (“Uniskai”), resold by Profisea under the AWS Resale Terms, in order to use the Service, and such use of the Uniskai shall be subject to the Uniskai Terms.
1.5. By accessing or using Unisave, the Customer acknowledges that it has read and understood the following terms and conditions of this Agreement and agrees to be bound by them and to comply with all applicable laws and regulations regarding its use of Unisave. This Agreement constitutes a binding and enforceable legal contract between Profisea and the Customer. Any act or omission performed by individuals on behalf of the Customer, in connection with the Customer’s use of Unisave, shall obligate their organization.
2.1. Unisave is intended to allow Customers to reduce costs associated with their use of AWS products and services purchased from Profisea (collectively, “AWS Services”), by dynamically (using machine learning) applying a mix of applicable commitment plans for the eligible AWS Services on the basis of the Customer’s actual use of the AWS Services and the Customer’s usage patterns. Unisave provides savings of applicable AWS 1-year commitments discount rates for all eligable Cloud Compute workloads while continuously managing the coverage by UniSave engine.
2.2. The Service shall be provided in accordance with the Service description, and the capabilities and limitations specified in the following link: Uniskai Help Center (profisealabs.com)(the “Specifications”) and in the Quotation. Profisea may change the Specifications at its sole discretion, at any time, with no notice provided to Customer.
2.3. The types of AWS Services supported by Unisave are detailed in the Specifications and Unisave shall not apply to any AWS Services which are not explicitly supported, as specified in the Specifications. Profisea does not guarantee that the Service will support all AWS Services (including all machine types) or that any AWS Services will be supported by the Service throughout the term of the engagement between the Customer and Profisea.
2.4. The Service shall include the tracking and analyzing of Customer’s AWS Services consumption and dynamically optimize the Customer Fees for its AWS cloud computing usage, through a mix of applicable commitment plans managed and owned by Profisea, with the aim of reducing the Fees, all in accordance with the Specifications.
2.5. The AWS costs saved by use of Unisave shall be divided between Profisea and the Customer, in accordance with the split set forth in the Quotation, and shall be applied in the form of a reduction of Fees in the invoice issued to the Customer.
2.6. The Customer agrees and acknowledges that any AWS products and services and any commitment to AWS Services purchased independently by the Customer (i.e., not by order to Profisea), shall not be covered by the Service and may affect the results of the Service, and Profisea disclaims any liability as a result thereof. The Customer agrees and acknowledges that it must immediately (and within no more than five (5) days following such purchase) notify Profisea of any independently purchased commitments. The Customer shall fully indemnify Profisea for any costs and damages incurred by Profisea as a result of such independent purchase of such AWS products and services and/or commitments, and shall pay any costs and expenses incurred by Profisea as a result of Customer’s failure to provide the aforementioned notice on time, and Profisea may invoice the Customer for the foregoing.
2.7. The Quotation may include certain commitments for the purchase of AWS Services, and it is hereby clarified that Unisave shall not apply to such commitments.
2.8. Without derogating from any other remedy available to Profisea, if Profisea believes that the Customer has engaged or is engaging in any fraudulent or illegal activity, or otherwise abuses the Service or jeopardizes the Service, Profisea may suspend or terminate the Customer’s use of the Service, at its sole discretion.
2.9. Customer hereby grants to Profisea a limited, non-exclusive, perpetual, royalty-free license to access and use any information from the AWS Account which may be necessary to provide the Service.
2.10. Profisea may temporarily or permanently limit the scope and/or quantities of workloads affected by the Service, at any time and at its sole discretion.
2.11. Any discount on the Fees due for AWS Services as a result of the Service, shall be calculated on a monthly basis.
3.1. THE OPERATION OF THE SERVICE IS DEPENDENT ON INTEGRATION WITH THE AWS ACCOUNT, AND PROFISEA CANNOT GUARANTEE THAT SUCH INTEGRATION WILL BE ERROR FREE AND THAT ANY INFORMATION DERIVED FROM OR SENT TO THE AWS ACCOUNT AND/OR ANY ACTION TAKEN BY THE USER IN CONNECTION WITH THE AWS ACCOUNT WILL BE ACCURATE OR ERROR FREE. PROFISEA DOES NOT ASSUME ANY RESPONSIBILITY OR LIABILITY FOR ANY LOSS AND/OR DAMAGES INCURRED AS A RESULT OF AWS’ ACTS OR OMISSIONS, OR THE INTEGRATION WITH THE AWS ACCOUNT, OR IN CONNECTION WITH ANY DECISION MADE OR ACTION TAKEN OR NOT TAKEN IN RELIANCE ON THE SERVICE. PROFISEA TAKES NO RESPONSIBILITY AND ASSUMES NO LIABILITY FOR THE AWS ACCOUNT. ANY INTEGRATION WITH THE AWS ACCOUNT IS ENTIRELY AT CUSTOMER’S OWN RISK.
3.2. TO THE FULLEST EXTENT LEGALLY PERMISSIBLE, AND OTHER THAN EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED ON AN “AS IS” BASIS, AND PROFISEA, INCLUDING ITS VENDORS, OFFICERS, SHAREHOLDERS, SUB-CONTRACTORS, DIRECTORS, EMPLOYEES, AFFILIATES, SUBSIDIARIES, LICENSORS, AGENTS, SUPPLIERS (COLLECTIVELY, “PROFISEA’S REPRESENTATIVES”), DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THIS AGREEMENT AND/OR THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR NON-INFRINGEMENT, AVAILABILITY, THE QUALITY OF THE SERVICE OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE.
3.3. PROFISEA DOES NOT GUARANTEE ANY SAVINGS, OR ANY SCOPE OF SAVINGS, OF FEES OR OTHER COSTS AS A RESULT OF USE OF THE SERVICE, AND THE CUSTOMER ACKNOWLEDGES THAT ANY SAVINGS OBTAINED THROUGH USE OF THE SERVICE, DOES NOT IMPLY OR GUARANTEE ANY FUTURE SAVINGS.
4.1. The Service, the Company’s proprietary assets and any and all intellectual property rights pertaining thereto, including, but not limited to, inventions, patents and patent applications, trademarks, trade names, service marks, copyrightable materials, domain names and trademarks, whether or not registered or capable of being registered (collectively, “Intellectual Property”), are owned by and/or licensed to the Company and are protected by applicable patent, copyright and other intellectual property laws and international conventions and treaties. All rights not expressly granted hereunder are reserved by the Company and its licensors. This Agreement does not convey to Customer an interest in or to the Company’s Intellectual Property but only a limited revocable right of use in accordance with this Agreement. Nothing in this Agreement constitutes a waiver of the Company’s Intellectual Property under any law.
4.2. To the extent Customer provides any feedbacks, comments or suggestions to Profisea (“Feedback”), Profisea shall have an exclusive, royalty-free, fully paid up, worldwide, perpetual and irrevocable license to incorporate the Feedback into any Profisea current or future products, technologies or services and use same for any purpose all without further compensation to the Customer and without Customer’s approval. Customer agrees that all such Feedback shall be deemed to be non-confidential.
5.1. PROFISEA SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, CONTRACT, NEGLIGENCE, TORT OR STRICT LIABILITY), INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL, PROFITS OR DATA AND BUSINESS INTERRUPTION, ARISING HEREUNDER, RESULTING FROM OR ARISING OUT OF THE SERVICE, CUSTOMER’S USE OR INABILITY TO USE THE SERVICE AND/OR THE FAILURE OF THE SERVICE TO PERFORM AS DESCRIBED OR EXPECTED; ALL REGARDLESS OF WHETHER PROFISEA (OR PROFISEA’S REPRESENTATIVES) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.2. IN ANY CASE, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, PROFISEA’S AND PROFISEA’S REPRESENTATIVES’ TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES OR LOSSES WHATSOEVER ARISING HEREUNDER OR IN CONNECTION WITH CUSTOMER’S USE OR INABILITY TO USE THE SERVICE SHALL BE LIMITED TO $US1000.00. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
6. Indemnification. Customer agrees to defend, indemnify and hold harmless Profisea, including Profisea Representatives from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney’s fees) arising from Customer’s violation of any provision of this Agreement. Without derogating from the foregoing, Profisea reserves the right to assume the exclusive defence and control of any matter which is subject to indemnification by Customer, which will not excuse Customer’s indemnity obligations hereunder and in which event Customer will fully cooperate with Profisea in asserting any available defence. Customer agrees not to settle any matter subject to an indemnification without first obtaining Profisea’s prior express written approval.
7. Fees. The Fees and payment terms which apply to this Agreement are set forth in the AWS Resale Terms.
8. Term and Termination. The term of this Agreement and the Parties’ rights to terminate this Agreement are set forth in the AWS Resale Terms. Without derogating from the foregoing, each Party may terminate this Agreement without cause, and without affecting the AWS Resale Terms, by 30 days’ prior written notice to the other Party. For the avoidance of doubt, any termination of expiration of the AWS Resale Terms, for any reason, shall automatically terminate this Agreement.
9. Changes to the Service. Profisea reserves the right to modify, correct, amend, enhance, improve, make any other changes to, or discontinue, temporarily or permanently the Service (or any part thereof, including but not limited to the Content) without notice, at any time. Customer agrees that Profisea shall not be liable to Customer or to any third party for any modification, suspension, or discontinuance of the Service.
10. Amendments to the Agreement. Profisea may, at its sole discretion, change this Agreement from time to time, by written notice to the Customer.
11. General. (a) This Agreement constitutes the entire terms and conditions between Customer and the Company relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements or understandings between Customer and the Company, (b) any claim relating to the Services or the use thereof will be governed by and interpreted in accordance with the laws of the State of Israel without reference to its conflict-of-laws principles and the United Nations Convention Relating to a Uniform Law on the International Sale of Goods may not be applied, (c) any dispute arising out of or related to the Service will be brought in, and Customer hereby consents to exclusive jurisdiction and venue in, the competent courts of the Tel Aviv-Jaffa, Israel. Customer agrees to waive all defences of lack of personal jurisdiction and forum non-convenience and agree that process may be served in a manner authorized by applicable law or court rule. Notwithstanding the foregoing, Profisea may seek injunctive relief in any court of competent jurisdiction, (d) this Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties hereto, (e) no waiver by either Party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof, (f) CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY CAUSE OF ACTION THAT IT MAY HAVE ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED, (g) if any provision hereof is adjudged by any court of competent jurisdiction to be unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect while most nearly adhering to the intent expressed herein, (h) Customer may not assign or transfer this Agreement (including all rights and obligations hereunder) without Profisea’a prior written consent and any attempt to do so in violation of the foregoing shall be void. Profisea may assign or transfer this Agreement without restriction or notification, and (i) the Parties agree that all correspondence relating to this Agreement shall be written in the English language.
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