These terms of service (“Terms”) form a legal agreement between the entity agreeing to these terms (“Customer” or “you”) and Meel and sets forth the terms and conditions governing Customer’s access to and use of the Services (as defined below). “Meel” means the Meel legal entity that has contracted with Customer as set forth in the applicable Service Order (as defined below). By entering into a service order order form quote proposal statement of work or similar ordering document for the provision and use of Services mutually agreed by Meel and the Customer that incorporates these Terms or Meel’s standard applicable terms of service by reference (the “Service Order”) or by using the Services Customer agrees to be bound by these Terms (together with the terms of the Service Order the “Agreement”). In the event of any conflict or inconsistency between these Terms and the terms and conditions of a Service Order executed by the parties the terms and conditions of the Service Order shall control.
Subject to payment of the Consideration (as defined below) and compliance with the Agreement Meel (i) agrees to make available to you and your Users (as defined below) during the Term of the Agreement the services offered by Meel and its affiliates to which you subscribed in the Service Order which may include as applicable Meel’s web and mobile based applications and the Meel API (collectively the “Services”) and (ii) grants to you and your Users a personal non-exclusive non-transferable license to use the Services and the software underlying the Services (the “Software”) under the terms and conditions set forth in the Agreement and any documentation made available to you by Meel (the “License”). The Services and License may be used only in the territory set forth in the Service Order. For the purpose of this Agreement “Users” shall mean the individuals authorized by Customer to use the Services such as Customer’s employees consultants contractors and agents and third parties with which Customer transacts business who have been supplied user identifications and passwords for that purpose.
Other than the rights expressly licensed hereunder no other rights or interests whatsoever in the Software and/or Services are transferred or granted to Customer or any affiliate thereof. Customer may not and may not permit or aid others to translate reverse engineer decompile disassemble update modify reproduce duplicate copy distribute or otherwise disseminate all or any part of the Software or extract or attempt to extract source code from the object code of the Software or create derivative works of the Software. Customer may not make any commercial use of the Services or the Software whether or not for consideration other than for Customer’s own internal business purposes.
Customer will be entitled to support in accordance with the applicable service level agreement terms (“SLA”) as purchased by Customer in the Service Order.
Depending on which Services are included in the Service Order one or more product-specific addenda which follow these Terms will apply and are incorporated herein.
In consideration for the Services described in the Service Order and the License granted hereunder Customer will pay to Meel the fees detailed in the Service Order (the “Consideration”). The fixed portion of the Consideration will be invoiced by Meel annually in advance and will be non-refundable and Services ordered under an applicable Service Order and their respective payment obligations are non-cancelable. The variable portion of the Consideration (e.g. communication charges overage fees and travel-related expenses) will be invoiced monthly in arrears. Payment is due within thirty (30) days of delivery of the applicable invoice. It is agreed that all past due amounts under this Agreement shall bear interest at the maximum rate permitted by law beginning with the date on which the applicable amount became due. Further if Customer is late on payment for the Services Meel may suspend the Services and/or terminate the Agreement for breach. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Meel in collecting any delinquent amounts. Following the Initial Term except as otherwise agreed in writing Meel may update the Consideration on an annual basis.
Meel’s prices and fees do not include payments to providers of third party services that are or may be integrated into the Services such as SMS service providers and credit card payment vendors (“Third Party Fees”). Customer will be solely responsible for payment of all Third Party Fees. In the event that Meel pays any Third Party Fees on Customer’s behalf Customer will promptly reimburse Meel in full within thirty (30) days of Meel providing Customer with reasonable proof of payment.
The initial term of this Agreement commences on the date set forth in the Service Order and shall continue in effect for the Initial Term set forth in the Service Order or unless terminated by a party in accordance with Section 3.2 below (the “Initial Term”). This Agreement shall thereafter automatically renew for successive periods of one year each (each an “Additional Term”) unless terminated by either party effective as of the end of the Initial Term or the applicable Additional Term with at least ninety (90) days prior written notice or in accordance with Section 3.2 below (the Initial Term together with each Additional Term the “Term”). If the Agreement is terminated for any reason other than Meel’s uncured material breach Customer will be responsible for the Consideration covering the remainder of the then-current term.
Notwithstanding the foregoing either party may terminate this Agreement forthwith by providing written notice to the other party:
Upon termination of this Agreement for any reason the License granted hereunder shall terminate automatically and Meel shall cease to provide all Services. Termination of this Agreement shall not release Customer of its requirement to pay any Consideration it was required to pay prior to termination of this Agreement and all such Consideration shall become immediately due and payable.
Termination shall not relieve either party of those obligations which would survive termination including without limitation Section 2 (CONSIDERATION) this Section 3.4 (SURVIVAL) Section 4 (CONFIDENTIALITY; PROPRIETARY RIGHTS; PRIVACY) and Section 5.5 (LIMITATION OF LIABILITY).
Neither party (the “Recipient”) shall disclose to third parties nor use for any purpose other than for the proper provision or use (as the case may be) of the Services any Confidential Information received from the other party (the “Discloser”) in whatever form under this Agreement or in connection with the Services without the prior written permission of Discloser. “Confidential Information” shall mean all data and information not made available to the general public oral or written that relates to Discloser’s past present or future research development or business activities information relating to services developments inventions processes plans financial information customer and supplier lists forecasts and projections and the terms and conditions of this Agreement and the Services pricing. Recipient shall limit access to Confidential Information to those of its personnel for whom such access is reasonably necessary for the proper use or provision (as the case may be) of the Services under this Agreement. Such personnel shall be bound by written confidentiality obligations not less restrictive than those provided for herein. Recipient shall be responsible for any breach of this Agreement by any of its personnel. Recipient shall protect the Confidential Information with the same degree of care but no less than a reasonable degree of care to prevent unauthorized disclosure or use of Confidential Information as Recipient exercises in protecting its own proprietary information. The aforementioned limitations shall not apply to Confidential Information which the Recipient can demonstrate: (i) was in its possession or known by it prior to receipt from Discloser; or (ii) is or becomes generally available to the public without breach of the confidentiality obligations herein contained; or (iii) was disclosed by a third party without breach of any obligation of confidentiality; or (iv) was independently developed without use of or reference to Discloser’s Confidential Information of the Discloser; or (v) is disclosed pursuant to administrative or judicial action, provided that Recipient gives Discloser prompt notice thereof so that Discloser may seek a protective order or other appropriate remedy. If only a portion of the Confidential Information falls under any of the above alternatives, then only that portion of the Confidential Information shall be excluded from the use and disclosure restrictions of this Agreement.
Customer acknowledges and agrees that the Services and the Software are proprietary products of Meel and its licensors, protected under patents, copyright laws and international treaties. Customer further acknowledges and agrees that all right, title and interest in and to the Services and the Software, including associated intellectual property rights and all improvements, modifications, revisions, derivative works, NRE, customization and integration work product, customer feedback, suggestions and white-label branded applications, are and shall remain the sole and exclusive property of Meel and its licensors. This Agreement and the rights granted hereunder do not convey to Customer any interest in or to the Software. Customer shall not remove or alter any copyright notice, trademark or other proprietary or restrictive notice or legend affixed to, embedded, contained or included in the Software or Services or any material provided by Meel.
As between the parties, Customer shall own the personally identifiable information of its Users, including, as applicable, its end user customers (“End Customers”) and members of its mobile workforce (“Mobile Personnel”) (collectively, the “Customer Data”). Meel accesses and uses Customer Data solely in order to provide the Services under this Agreement in accordance with Meel’s Privacy Policy. Customer is responsible for establishing the lawfulness of processing of Customer Data, including obtaining all rights and/or consents as may be required under applicable law from its Users, as necessary for Meel to be able to provide the Services hereunder (the “Privacy Consents”).
The following restrictions apply to Customer’s use of the Services. Failure to comply with such restrictions will constitute a breach of this Agreement: (a) Customer may not create a browser, frame, border environment or GUI around the Services application or website; (b) Customer may not actually or seek to interfere with or disrupt the operation of the Services; (c) Customer may not actually or seek to interfere with or violate other users’ rights to privacy and other rights, or harvest or collect data and information about users without their express consent, whether manually or with the use of any robot, spider, crawler, site search or retrieval application, or other automatic device or process to access the Services applications, websites, servers or databases and/or retrieve index and/or data-mine information; (d) Customer may not actually or seek to impersonate any person or entity or provide false or misleading personal information; (e) Customer may not transmit or otherwise make available through or in connection with the Services any virus, “worm”, “Trojan Horse”, “time bomb”, “web bug”, spyware, or any other computer code, file, application or program that is malicious by nature or defective, and may, or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; (f) Customer may not use the Services for any illegal, unlawful or unauthorized purposes; and (g) Customer may not access any Service in order to build a competitive product or service.
Customer hereby acknowledges that Meel may use the contact details of Customer’s own personnel that Customer provides to Meel, for the purpose of informing Customer regarding Services performance, new products, offers, services and features which may interest Customer. Customer may withdraw its consent by sending a written notice to Meel by email to the following address: support@Meel.com, or alternatively following the instructions for removing the applicable email address from the mailing list which are available in the email transmitted to Customer.
Meel warrants that: (a) the Services will perform in accordance with the Services documentation made available to Customer from time to time in all material respects, unless the failure was caused by any of the circumstances listed in Section 6.3 below or by combination of the Services with any other goods or services or by use not in accordance with Meel’s documentation; and (b) support services will be provided in accordance with the applicable SLA offering purchased by the Customer (the “Warranty”). In the event of a breach of the Warranty that has not been remedied by Meel within thirty (30) days of Customer’s written notice to Meel of a breach of the Warranty, Customer’s sole remedy shall be to terminate this Agreement in accordance with Section 3 above and to receive a refund of amounts paid by Customer for use of the Services for the period following the effective date of termination.
OTHER THAN THE EXPRESS WARRANTIES SET FORTH IN SECTION 5.1 ABOVE, THE SERVICES, SOFTWARE AND SUPPORT ARE MADE AVAILABLE “AS IS” AND WITHOUT ANY OTHER WARRANTY OR CONDITION WHATSOEVER, EXPRESS OR IMPLIED. MEEL DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY AND NON-INFRINGEMENT. MEEL DOES NOT WARRANT THAT THE USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE AND IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR ANY OTHER LOSS OR DAMAGE RESULTING FROM THE TRANSFER OF DATA OVER COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, AND CUSTOMER ACKNOWLEDGES THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.
Meel agrees to indemnify Customer from any third party claims of infringement by the Software or Services of such third parties’ intellectual property rights, and to pay all direct costs, settlements, or judgments finally awarded; provided, however, that (1) Customer shall have given Meel a prompt written notice of the relevant claim, suit, demand, notice or action alleging such infringement; (2) Customer shall reasonably cooperate with Meel in the defense and settlement thereof; and (3) Meel shall have sole control of the defense of such claim, suit, demand, or action and the settlement or compromise thereof. The foregoing shall not apply to the extent that the infringement arises: (i) from the use of the Services or Software in a manner for which they were not intended, (ii) from the use of the Services or Software not in compliance with the documentation or instructions provided by Meel, (iii) where the infringement results from the alteration or modification of the Services or Software, or the combination of the Services or Software with a third party’s systems, services or applications, where the unaltered or unmodified Services or Software, or the Services or Software standing alone, as applicable, would not have infringed upon third party’s rights, or (iv) from a failure of Customer’s Mobile Personnel to download and install any software update distributed by Meel for their mobile device applications. In the event that an injunction is obtained against the Customer’s and/or Customer’s Users’ use of the Services arising from a suit, claim or proceeding, or if Meel anticipates that there is a likelihood of a claim of infringement, or determines that the following steps will assist in defending or settling a claim, suit, demand or action, Meel may, at its option and expense, either (a) procure for Customer and its Users the right to continue using the Services; or (b) replace or modify the Services so that use thereof no longer infringes upon such intellectual property rights, so long as the utility or performance of the Services is not materially adversely affected by such replacement or modification; or (c) where (a) or (b) are not practicable, to terminate this Agreement. If Meel chooses to replace or modify the Services in accordance with subsection (b) above, Customer will and will cause Customer’s Mobile Personnel to update all applicable Meel mobile device applications. THIS SECTION 5.3 SETS FORTH CUSTOMER’S AND ITS USERS’ EXCLUSIVE AND ENTIRE REMEDY AGAINST MEEL WITH RESPECT TO ANY ACTION, SUIT, DEMAND OR CLAIM FOR AN ALLEGED INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES OR SOFTWARE OR ANY COMPONENT THEREOF.
Without derogating from any applicable law, Customer agrees to indemnify and hold harmless Meel and its employees, officers, directors and agents, from and against all losses, claims, expenses, costs, liabilities and demands resulting from or in connection with (a) Customer’s and/or its Users’ use or alleged use of the Services that is not in accordance with this Agreement, any applicable agreements with Customer’s Users, and Meel’s documentation and instructions, (b) breach or alleged breach by Customer and/or its Users of any law, rule or regulation, (c) a claim or allegation that Customer Data, or any program code or applications created by or for Customer, infringes or misappropriates the intellectual property rights of a third party; and (d) failure by Customer to obtain the Privacy Consents or the consent of any User to receive any SMS, email or other messages as part of the Services.
As a condition to the indemnified party’s right to indemnification under Section 5.1 or 5.2 above the indemnified party shall (i) promptly notify the indemnifying party in writing of the applicable claim (provided that any delay in providing such notice shall not relieve the indemnifying party of its indemnification obligations hereunder except to the extent it was prejudiced by such delay) (ii) permit the indemnifying party to assume control of the defense and settlement of such claim (provided that the indemnifying party shall not settle any claim without the indemnified party’s prior written consent which consent shall not be unreasonably withheld conditioned or delayed) and (iii) cooperate with the indemnifying party in connection therewith at the indemnifying party’s expense.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, MEEL’S CUMULATIVE LIABILITY TO CUSTOMER, CUSTOMER’S MOBILE PERSONNEL, END CUSTOMERS, OTHER USERS, AND ANY THIRD PARTY FOR ANY LOSS, COST OR DAMAGE RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR USE OF THE SERVICES AND/OR SOFTWARE AND/OR MOBILE APPLICATIONS AND/OR SUPPORT SHALL NOT EXCEED THE TOTAL CONSIDERATION ACTUALLY PAID BY CUSTOMER HEREUNDER DURING THE ONE-YEAR PERIOD PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE ALLEGED LIABILITY. IN NO EVENT SHALL MEEL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOST DATA OR LOST PROFITS, EVEN IF MEEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The Services may incorporate or rely on third party products and/or services, including without limitation, maps, SMS and other messaging services, information regarding traffic and road conditions, driving directions, payments and the GPS and internet functionality in Mobile Personnel’s and the End Customers’ mobile devices. Meel makes no representations regarding, and disclaims any responsibility or liability for, the accuracy, reliability or availability of such third party products and/or services and any information provided by the Services in reliance thereon.
The limited warranties, warranty disclaimers, exclusive remedies and limited liability provisions set forth herein are fundamental elements of this Agreement and the Services provided hereunder, and allocate risk under this Agreement between Customer and Meel in light of the fees charged by Meel for provision of the Services and support.
The Services and Software may use or include third party software, files and components that are subject to open source and/or third party license terms (“Third Party Components”). Customer’s right to use such Third Party Components as part of, or in connection with, the Services and Software is subject to any applicable acknowledgements and license terms accompanying such Third Party Components, contained therein or related thereto. If there is a conflict between the licensing terms of such Third Party Components and this Agreement, the licensing terms of the Third Party Components shall prevail in connection with the related Third Party Components. Such Third Party Components are provided on an “AS IS” basis without any warranty of any kind and shall be subject to any and all limitations and conditions required by such third parties. Under no circumstances shall the Services or Software or any portion thereof (except for the Third Party Components contained therein) be deemed to be “open source” or “publicly available” software.
Each party may use the other party’s name, trademarks, logos, etc. in its publicity and marketing materials, including in the list of customers or partners on its website, and in case studies regarding use of the Services. In addition, promptly following the execution of the Service Order, upon Meel’s request, the parties will issue a joint press release regarding their commercial cooperation.
The Software and Services and all related technical information, documents and materials are subject to export controls under United States and Israeli law. Customer will (i) comply strictly with all legal requirements established under these controls, and (ii) cooperate fully with Meel in any official or unofficial audit or inspection that relates to these controls, and (iii) not export or re-export the Software or Services without the appropriate applicable governmental licenses or approvals.
Except for payment obligations, neither party shall be liable for any costs or damages due to nonperformance under this Agreement, arising out of any cause or event not within the reasonable control of such party and without its fault or negligence, such as an act of God, act of war, labor disputes, reason of fire, floods, pandemic and epidemic, government restrictions, failure of the internet or any network used to access or provide the Services, failure of service attack, or inability to obtain necessary materials or services from suppliers if no equipment sources for such suppliers or services are readily available.
Customer may not assign, sublicense or make available to any other person or entity, this Agreement, or any rights or obligation hereunder, or the Services or any part thereof, in whole or in part without the prior written consent of Meel, and any attempt by Customer to so assign, sublicense or make available shall be deemed null and void. Meel may freely transfer and assign its rights and obligations hereunder to an affiliate or to a third party that acquires all or substantially all of the assets subject to this Agreement or securities of Meel or any entity into which Meel shall merge or any affiliate thereof.
This Agreement may only be modified or amended by a written instrument duly executed by each of the parties. Meel may add features or functionality or improve or change or modify the Services at any time at its sole discretion. Meel will not intentionally remove material features or functionality, other than beta or test features or functionality, during the Term.
Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof, which shall be interpreted so as to give maximum effect to the intention of the void or unenforceable term.
This Agreement, together with (i) Meel’s Privacy Policy if the Services include access to Meel’s application program interface, software development kit or other development tools (collectively, “APIs”), the terms and conditions presented when accessing such APIs, represent the entire agreement between the parties with respect to the subject matter hereof and supersede any prior proposal, representation, or understanding between the parties.
The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
Titles used in this Agreement are for purposes of convenience of reference only and shall not be considered in constructing this Agreement.
The terms and conditions set forth in this Meel Delivery Management Platform Addendum apply solely with respect to a subscription to the Services to the extent that they include the following products, including any substantially similar or successor products (as currently named or later renamed):
When Customer subscribes to the Services, Customer will be required to create one or more administrator accounts (each an “Administrator Account”) that allows the administrators of the Services (the “Admins”) to determine certain administrative functions made available by the Services, such as the ability to track Customer’s mobile workforce and the choice of the dispatchers (such as store users) (the “Dispatchers”) who will be granted limited access to the Services to carry out certain activities, as determined by the Admins. When Customer creates an Administrator Account, Customer will be required to insert certain details of its Admins and Dispatchers (where applicable), such as business email address, user name, password, telephone number, mobile telephone number, and office address. Meel may notify the Admins and the Dispatchers (where applicable) of any operational issues encountered in connection with the use of the Services through email or SMS communications. Customer represents and warrants to Meel that it shall obtain all rights and/or receive all consents, as may be required under applicable law from the Admins and Dispatchers (where applicable) for Meel to send the aforesaid SMS or email communications. Each such account is personal and is not transferable. By creating an account, Customer represents and warrants to Meel that Customer has provided accurate, complete and updated account information. Customer is responsible for maintaining the confidentiality of Customer’s account, and user name and password, and Customer agrees to accept responsibility for all activities that occur under Customer’s account.
If Customer permits any of its End Customers to use the Services (e.g., by making use of the customer experience functionality), Customer may provide his or her mobile telephone number and/or email address, following which a Notification will be sent to the End Customer through the app. which the End Customer will be able to access the app to track the arrival of Customer’s delivery personnel to the End Customer’s location. Customer represents and warrants to Meel that it shall obtain all rights and/or receive all consents, as may be required under applicable law from the End Customers for Meel to send an SMS, email or other communication means as aforesaid to the End Customers. Meel may have access to information regarding the End Customers’ location through the Meel webpage and may store such information or a portion thereof. Each of the End Customers is responsible for the availability and cost of an internet connection for his or her mobile device that he or she uses to access the Services. The Services will not be available for or in respect of End Customers whose mobile device is not connected to the internet for whatever reason.
If Customer permits any Mobile Personnel to use the Meel mobile application in connection with its use of the Services, Customer may provide Mobile Personnel’s telephone number, following which a link will be sent to such Mobile Personnel by SMS, email or other communication means through which the Mobile Personnel will be able to download the Meel mobile application to his or her mobile device. Customer represents and warrants to Meel that it shall obtain all rights and/or receive all consents, as may be required under applicable law from the Mobile Personnel for Meel to send an SMS, email or other communication means as aforesaid to the Mobile Personnel. Installation of the Meel mobile application on a Mobile Personnel’s mobile device is subject to the Mobile Personnel agreeing to comply with the terms and conditions and/or end-user agreement embedded in the Meel application and permitting Meel access to the location functionality of the Mobile Personnel’s mobile device. Customer will be fully responsible for compliance by Customer’s Mobile Personnel with such terms and conditions and/or end-user agreement. Meel will have access to information regarding the Mobile Personnel’s location whenever the Meel application is running on their respective mobile device and may store such information or a portion thereof. Each Mobile Personnel is responsible for the availability and cost of an internet connection for his or her mobile device that he or she uses to access the Services. The Services will not be available for or in respect of a Mobile Personnel whose mobile device is not connected to the internet for whatever reason. With respect to mobile applications, the Warranty set forth in the Agreement extends only to use with iOS and Android versions that are officially supported by Apple and Google, respectively, and is subject to the user of such application having installed all updates made available by Meel via the applicable application store.
Customer hereby grants to Meel the full right and license to use, process, transfer and store the Customer Data for purposes of providing the Services and as stated in the Privacy Policy. All other information and data relating to the provision, use and performance of the Services and related systems and technologies shall be owned by Meel, and, without limitation, Meel will be free, during and after the Term hereof, to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Meel offerings, and (ii) disclose such information and data solely in aggregate or other de-identified form in connection with its business. For the purpose of this Agreement, the parties’ rights and obligations with respect to the processing by Meel of Customer Data as part of the Services offered by Meel hereunder, shall be subject to the Data Processing Agreement made available to Customer.
If the Services include the Twilio SMS messaging service, Customer shall comply with the Twilio’s Messaging Policy at https://www.twilio.com/legal/messaging-policy; the Twilio Service and Country Specific Requirements at https://www.twilio.com/legal/service-country-specific-terms#country-specific-requirements; and the Twilio’s Acceptable Use Policy at https://www.twilio.com/legal/aup. If the Services include content from Google Maps, including map and terrain data, photographic imagery, and traffic data, Customer may use such content only in accordance with the Google Maps APIs Master Terms – Premium Plan as in effect from time to time, currently located at https://cloud.google.com/maps-platform/terms.
