ACCADIA Terms of Use

IMPORTANT INFORMATION - PLEASE READ THIS ACCADIA Terms of Use ("AGREEMENT") CAREFULLY BEFORE OPENING YOUR ACCOUNT AND/OR BEFORE USING, DOWNLOADING OR INSTALLING THE SOFTWARE (DEFINED BELOW). THIS AGREEMENT CONSISTS OF THE TERMS AND CONDITIONS WHICH GOVERN YOUR ("you" or "User"), ACCESS TO AND USE OF ACCADIA SOFTWARE TECHNOLOGIES LTD.'S ("Accadia") SOFTWARE AND CONSTITUTES A BINDING AGREEMENT BETWEEN YOU AND ACCADIA. BY CREATING AN ACCOUNT WITH ACCADIA AND/OR USING THE SOFTWARE (IN WHOLE OR IN PART) IN ANY WAY OR MANNER, YOU AGREE THAT YOU ARE BOUND BY THIS AGREEMENT.

IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU SHOULD NOT OPEN AN ACCOUNT WITH ACCADIA AND IMMEDIATELY AVOID THE USE OF THE SOFTWARE AND RETURN IT TO ACCADIA. 

Accadia reserves the right at any time to unilaterally modify the Agreement and to impose new or additional terms or conditions on your use of the Software. In the event of material modifications or additions to the Agreement, Accadia and/or an Accadia distributor shall notify you via email or by means of a prominent notice on Accadia's website. BY CONTINUING TO USE THE SOFTWARE OR ANY PART THEREOF FOLLOWING SUCH MODIFICATIONS, YOU AGREE TO BE BOUND BY SUCH MODIFICATIONS. 

1.    Definitions. 1.1.        "Intellectual Property Rights" shall mean any and all worldwide, whether registered or not (a) patents, patent applications and patent rights; (b) rights associated with works of authorship, including copyrights, copyrights applications, copyrights restrictions, mask work rights, mask work applications and mask work registrations; (c) rights relating to the protection of trade secrets and confidential information; (d) trademarks, trade names, service marks, logos, trade dress, goodwill and domains; (e) rights analogous to those set forth herein and any other proprietary rights relating to intangible property; and (f) divisions, continuations, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.
1.2.        “Software” shall mean (i) the Accadia proprietary software listed in your invoice; (ii) all revisions, corrections, modifications, enhancements, improvements and/or updates and upgrades to the foregoing provided by Accadia or on its behalf, and (iii) all related documentation provided by Accadia or on its behalf and/or placed on Accadia’s website.

2.    Grant of Rights. Subject to the terms and conditions of this Agreement (including payment of all applicable fees) and for so long as user complies in full with all such terms and conditions, Accadia grants user, and user accepts a limited, non-exclusive, personal, fee-bearing, non-transferable, non-sublicensable right to use the Software during the term of your subscription, solely in object code form, for personal use only by user.   

3.    Ownership. Notwithstanding any other provision to the contrary, all Confidential Information, Trademarks, Feedback (defined below), the Software, and all improvements, enhancements and derivatives thereof and all Intellectual Property Rights thereto ("Accadia IPR") are exclusively owned by Accadia and/or its licensors. This Agreement does not convey to user any right, title or interest in the Accadia IPR, other than the revocable and limited right to use the Software as set forth in Section 2 above (provided user paid all applicable fees in full).

4.    Confidential Information. The Software contains valuable trade secrets of Accadia and any disclosure or unauthorized use thereof will cause irreparable harm and loss to Accadia. User expressly undertakes to retain in confidence and to require its employees to retain in confidence all information and know-how in respect of the Software and/or that are transferred to, or discovered by user (“Confidential Information”).  User expressly undertakes to (i) limit dissemination of the Confidential Information solely to its employees who have a need to know and who are bound by obligations and restrictions as to confidentiality and Intellectual Property Rights no less restrictive on said employees and no less protective of Accadia IPR and Confidential Information than the terms hereof; (ii) not disclose the Confidential Information to any third party; and (iii) not use the Confidential Information for any purpose other than as explicitly permitted herein. 

5.    User Obligations; Limitations on Use; Representations and Warranties.
5.1.        User shall not (i) copy, reproduce, sell, license (or sub-license), lease, loan, assign, transfer, or pledge the Software or any part thereof, or otherwise permit any third party to do any of the foregoing; (ii) modify, disassemble, decompile, reverse engineer, revise or enhance or create any derivative works or otherwise merge or utilize all or any part of the Software with or into any third party materials or components or attempt to access or discover the Software' source code; (iii) place the Software onto a server so that it is accessible via a public network or use the Software for Service Bureau purposes; (iv) ship, transfer, or export the Software or any component thereof or use the Software in any manner, prohibited by law, including without limitation to, sell, distribute, export or download Software: (a) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Lebanon or Syria, (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, (c) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. or Israeli government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval, or (d) otherwise in violation of any export or import restrictions, laws or regulations of the U.S. or Israel or any foreign agency or authority.  User agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list; (v) contest Accadia's Intellectual Property Rights to the Accadia IPR; (vi) remove or add any labels, notices or logos to the Software, (vii) perform any act or be responsible to any omission that is illegal or in Accadia's discretion jeopardizes, destabilizes, interrupts or encumbers the Software and/or has a detrimental impact on Accadia and/or Accadia IPR; (viii) utilize the Software including without limitation any related point of presence, servers and network, in any way which will result in the violation or circumvention of any applicable laws or regulations including, without limitation, those enforcing censorship, privacy, government authority restrictions or other; (ix) build permanent databases or otherwise create permanent copies of content received from Accadia through the Software; (x) display or distribute any data or information pertaining to a graded gemstone that (a) is inconsistent with any content accessed by you through the Software pertaining to that graded gemstone, or (b) is otherwise inaccurate, false, or misleading in any manner; or (xi) cause or permit any third party to do any of the foregoing.
5.2.        User is solely responsible for acquiring and maintaining all of the hardware, software and services necessary to access and make use of the Software, including without limitation paying all fees and other costs related to internet access, server or cloud account subscription and maintenance and the User Content (as defined below in Section 5.3 below). User shall use the Software in a proper environment as set forth in the Software documentation and in compliance with the applicable operating instructions and all applicable laws and regulations and for no purpose other than as specifically authorized in the Software documentation, including without limitation, circumvention of government censorship, laws or regulations.
5.3.        User hereby warrants and represents that: (i) it has all the required rights, licenses, permits and authorizations to use all of the content and data used by it or on its behalf with the Software and to promote and sell all products in connection thereto ("User Content"); (ii) the User content (a) does not and will not infringe upon or misappropriate any third party right, including without limitation any Intellectual Property Rights and the right to privacy, (b) complies and shall at all times comply with all applicable laws and regulations, including without limitation consumer protection laws, (c) does not include or refer to conflict diamonds and all diamonds sold or marketed by User are conflict free; (d) is true, complete and accurate. Accadia provides the Software as a tool and does not provide any information processing, consulting or transaction related services; all information or transactions processed through the Software are processed by User and User shall be solely responsible to comply with all applicable laws and required registrations and consents in respect thereof. 

6.    Payments. You shall pay Accadia all applicable fees for the Software and services related thereto as set forth on Accadia's website and in accordance with the payment terms therein.  Any amount not paid when due shall bear a late payment charge, until paid, in an amount equal to 1.5% per month or, if lower, the maximum rate allowed by law.  In addition, you shall reimburse Accadia for all reasonable costs (including legal fees and expenses) in collecting unpaid amounts owed under this Agreement.  You will be responsible for all applicable sales, use and excise taxes and like charges imposed with respect to the Software, your use thereof or any services provided by Accadia, except for taxes based on the net income of Accadia. In the event that pursuant to any law or regulation, tax is required to be withheld at source from any payment made to Accadia, user shall, if Accadia does not provide a tax exemption certificate, withhold said tax at the rate set forth in the certificate issued by the appropriate taxing authority and provided to user by Accadia, or in the absence of such certification, at the rate determined by said law or regulation.

7.    Feedback. User agrees that any feedback or ideas user provides to Accadia or its distributors regarding any Software, their use or any suggested improvements, enhancements or derivatives ("Feedback") thereto will be the exclusive property of Accadia and shall be deemed as Accadia IPR and Confidential Information. User shall not disclose or publish such Feedback or otherwise make any such information publicly available. To the extent all right, title and interest in and to all Intellectual Property Rights in the Feedback are not owned in their entirety by Accadia upon creation, user hereby irrevocably assigns all rights therein to Accadia and waives any and all rights therein including without limitation moral rights and/or rights to receive compensation and/or royalties.

8.    U.S. Government Rights. As defined in 48 C.F.R. §2.101, DFAR §252.227-7014(a)(1) and DFAR §252.227-7014(a)(5) or otherwise, all Software provided in connection with this Agreement are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.

9.    Privacy Policy. Accadia's privacy policy, which is available at http://accadiasoftware.com/PrivacyPolicy.html, provides details regarding Accadia's data processing activities.  

10. Disclaimer of Warranty.  
10.1.     THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ACCADIA DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, SECURITY AND NON-INFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH USER. USER SHALL HAVE SOLE RESPONSIBILITY AND LIABILITY TO THE USER CONTENT. USER HEREBY ACKNOWLEDGES THAT ACCADIA IS NOT DEEMED A PROCESSOR OF THE USER CONTENT AND MERELY PROVIDES USER WITH THE SOFTWARE AS A TOOL TO PROCESS THE USER CONTENT.
10.2.     ACCADIA DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE; OR THAT ERRORS/BUGS ARE REPRODUCIBLE OR THAT ERRORS/BUGS ARE REPAIRABLE AND DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF ITS CORRECTNESS, USEFULNESS, ACCURACY, RELIABILITY, OR OTHERWISE. USER SHALL BE RESPONSIBLE FOR TAKING ALL PRECAUTIONS USER BELIEVES ARE NECESSARY OR ADVISABLE TO PROTECT USER AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY VIRTUE OF ANY USE OF OR RELIANCE UPON THE SOFTWARE AND FOR VERIFYING ANY OUTPUT RESULTING FROM USE OF THE SOFTWARE. UPTIME AND AVAILABILITY SHALL BE SOLELY USER'S RESPONSIBILITY, ACCADIA DOES NOT HAVE ANY CONTROL OVER THE SERVER ON WHICH THE SOFTWARE WILL BE INSTALLED (WHETHER ON CLOUD OR ON PREMISE).
10.3.     Accadia is not a party to any marketing, promotion or sales activity or transaction between the User and any third party, including without limitation any customer or online store or marketplace. The Software is merely a tool, meant to be sued by User in order to interface with different third party marketing platforms. User has sole responsibility and liability for compliance with the applicable third party terms and conditions on such platforms, including without limitation in respect of advertising content, inventory, quality, customer services, refunds and cancellations and any other matter.

11. Indemnification. User shall indemnify, defend and hold Accadia and all of its affiliates and its and their owners, suppliers, licensors, directors and employees, harmless, against any and all claims, demands, costs, expenses, losses, liabilities or damages in connection with: (i) any breach of this Agreement; (ii) the User Content; (iii) any third party claim related to User's business.

12. Limitation of Liability. IN NO EVENT SHALL ACCADIA OR ITS AFFILIATES, LICENSORS, SUPPLIERS, REPRESENTATIVES OR DISTRIBUTORS OR ITS AND THEIR SHAREHOLDERS, MANAGERS, DIRECTORS, OFFICERS, AFFILIATES AND EMPLOYEES ("ACCADIA AFFILIATE") BE LIABLE TO YOU OR ANY THIRD PARTY, UNDER ANY LEGAL THEORY WHETHER CONTRACT, TORT OR OTHERWISE, FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL, CONSEQUENTIAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, LOSS OF USER CONTENT INCLUDING ARISING OUT OF THE USE OF OR INABILITY TO USE THE  SOFTWARE OR OTHER PECUNIARY LOSS) ARISING OUT OF THE SOFTWARE AND/OR SERVICES PROVIDED HEREUNDER AND/OR THE USE OF OR INABILITY TO USE THE SOFTWARE OR ANY PART THEREOF EVEN IF ACCADIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT DESPITE THE AFOREMENTIONED LIMITATION OF LIABILITY ANY COMPETENT AUTHORITY WILL FIND ACCADIA OR ANY ACCADIA AFFILIATE LIABLE, ACCADIA'S AND/OR ACCADIA AFFILIATE'S AGGREGATE LIABILITY SHALL NOT EXCEED AN AMOUNT EQUAL TO THE AGGREGATE FEES PAID BY YOU TO ACCADIA FOR THE RIGHT TO USE THE SOFTWARE DURING THE SIX (6) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.

13. Term and Termination.
13.1.     The term of this Agreement shall commence on the date you open an account with Accadia for use of the Software, as recorded on Accadia's systems, and unless otherwise terminated hereunder, shall remain in full force and effect for the initial period set forth in your subscription plan with Accadia  (the "Initial Term"). On expiration of the Initial Term, the Agreement will automatically renew for additional periods (as set forth in your subscription plan) (each, a “Renewal Term”) unless either Party notifies the other in writing at least sixty (60) days prior to the end of the Initial Term or then-current Renewal Term, as the case may be, of its intent to terminate this Agreement upon the expiration of the Initial Term or then-current Renewal Term, as applicable (the Initial Term and any subsequent Renewal Term, collectively, the "Term").
13.2.     Accadia may terminate this Agreement by notice to you: (i) upon your failure to comply with  any of your obligations hereunder; (ii) immediately and without notice in the following events: (a) if user attempts to transfer or assign any of its rights, liabilities or obligations under this Agreement contrary to the provisions of this Agreement; (b) failure by user to pay any of the applicable fees; or (c) violation of any of the limitations set forth in Section 5.1 above.  Upon termination or expiration of this Agreement: (i) user shall immediately pay Accadia all fees and payments, regardless of the due date of payment, and (ii) the right granted to you in this Agreement shall expire and you shall cease use of the Software and immediately return to Accadia all Confidential Information and Accadia IPR in any media and shall erase all copies of the Software. Notwithstanding the termination or expiration of this Agreement, Sections 1, 3-7, 9-12, 13.2, 14 and 15 shall survive and remain in effect in perpetuity. 

14. Governing Law & Jurisdiction. This Agreement is governed by the laws of the State of Israel without regard to conflict of law provisions thereof.  The competent courts of Tel-Aviv, Israel shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement and both parties hereby irrevocably submit to the exclusive jurisdiction of those courts. Notwithstanding the foregoing, Accadia may seek any equitable relief (including an injunctive relief) in any jurisdiction worldwide. The United Nations Convention for the International Sale of Goods is expressly excluded from this Agreement.

15. General. (i) The Agreement and its Schedules are the entire agreement between you and Accadia in respect of the subject matter herein and this Agreement shall not be modified except as provided herein; (ii) Accadia may assign this Agreement, in whole or in part, in its sole discretion. You may not assign or otherwise transfer this Agreement or any of your rights and obligations under this Agreement to any third party without the prior written consent of Accadia. Any unauthorized assignment will be void and of no force or effect; (iii) unless otherwise expressly provided, no provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity other than you and Accadia, its affiliates and successors or assignees any rights, remedies or other benefits under or by reason of the Agreement; (iv) no failure or delay on the part of Accadia or its distributor hereto in exercising any right, power or remedy shall operate as a waiver thereof, any waiver granted by Accadia and/or a distributor hereunder must be explicit and in writing and shall be valid only in the specific instance in which given.

Last updated on: February 26, 2019