General Terms and Conditions of Sale of Livegg Ltd.
This document sets out the general terms and conditions (" these Terms "), pursuant to which Livegg sells and supplies to the Purchaser its Systems, Products and Services grants the License to the Purchaser for the Software. All offers for sale of Livegg Systems, Products and Services are subjected to these Terms and all sales of Livegg Systems, Products and Services are also subjected to these terms.
These Terms are valid as of December, 2018. Livegg reserves the right to make changes from time-to-time to these Terms without notification to the Purchaser by publishing updated Terms on its website ( www.livegg.com ) and by indicating the date that the amended Terms will be valid from.
In these Terms, the following capitalized terms shall have the meanings ascribed to them below:
"License" means the license to use the Software granted to the Purchaser under Section 7 below.
" License Fee " means the fee payable to Livegg in consideration for the License as quoted in the Offer.
"Livegg" means Livegg Ltd., an Israeli company.
"Products" means Trays and other parts that form part of the System and that may be added or removed from System.
"Offer" means the most recent written offer from Livegg to the Purchaser setting out the commercial terms for the System, Services, Products and License.
"PO" means purchase orders for the System and Services issued by the Purchaser. POs must meet the requirements set out in these Terms or they will be rejected.
"Platform" means a SaaS based platform operated and maintained by Livegg to which the System shall be connected, which will receive data from the System, analyze the data and transmit data to the System all via the internet.
"Purchaser" means the person or entity to whom the Offer is addressed and the person or entity appearing on the PO.
"Services" means certain services detailed in the Offer and provided in connection with the sale of the System, including installation at the Purchaser's premises, testing the System, training Purchaser personnel in the operation and maintenance of the System and connecting the System to the Platform ("Set-up Services"). Certain Services are optional (such as consulting services in connection with data received from the Systems) and must be specifically indicated on the POs.
"Software" means all software and firmware that is included in the System.
"System" means P roducts and Software combined into a system and connected to the Platform. Incubating poultry eggs are placed on Trays and the System is able to collect data in connection with each individual egg and send that data to the Platform for analysis and present the data to the Purchaser for the Purchaser's analysis.
"Trays" means the Livegg patented trays into which eggs may be placed and containing sensors that read the data for each individual egg.
Formation of Contracts
POs must be submitted in writing to Livegg by email to (email@example.com) or by facsimile to (+972 46375411). POs must clearly set out the name of the Purchaser, the place of delivery and indicate whether an entire System is being purchased or the PO is for separate Products. The PO must also reference the relevant Offer. Please note that Systems require a minimum number of Trays for the most reliable analysis and Livegg will recommend the minimum number of Trays appropriate for the Purchaser.
No PO shall be binding on Livegg until it has been formally accepted by Livegg. Livegg is not bound to accept any PO. POs shall only be considered as accepted by Livegg when Livegg has provided written notice of acceptance to the Purchaser. Written acceptance may be transmitted to the Purchaser by any standard means of electronic communication.
Upon formal acceptance of a PO as stated in Section 2.2, the PO, together with the applicable Offer and these Terms shall form an independent sale contract, pursuant to which Livegg shall sell and supply to the Purchaser the Systems, Services or Products ordered and the Purchaser shall pay for the Systems, Services or Products ordered (the "Sale Contract"). Except as set out in the PO, Offer and these Terms, no other terms shall apply to the Sale Contract, regardless of any other terms that may appear or be referenced in the PO or in any other document issued by either party. In issuing the PO, the Purchaser indicates its express agreement to waive any and all other terms regarding its purchase of Systems, Services and Products from Livegg and the Purchaser agrees that terms of sale shall not be determined by a "Battle of the Forms".
In the event of any conflict between any part of the PO, Offer and these Terms, the Offer shall prevail, followed by these Terms, followed by the PO.
Price and Payment Terms
Price for the Systems, Services or Products sold to the Purchaser under the applicable Sale Contract shall be as stated in the applicable Offer (the "Purchase Price"). Where applicable VAT shall be added to the Purchase Price.
Unless provided otherwise in the applicable Offer, the Purchaser shall pay the Purchase Price in full within 10 days of Livegg's acceptance of the applicable PO. Payment shall be made by wire transfer in readily available funds in the currency quoted in the Offer. If bank account details for transfer instructions are not contained in the Offer, then the Purchaser shall contact Livegg at (firstname.lastname@example.org) to obtain the relevant details.
Late payments by more than 10 days shall entitle Livegg to charge interest on the amount in default. Livegg will first send a written reminder to the Purchaser and if payment is still not made within the next 5 days, then interest will be charged at the rate of LIBOR plus 3% for every day of the delay, provided that if the relevant laws of the country to which the Systems, Services or Products are being delivered allow for a greater maximum interest rate for default payments, then the maximum rate shall apply.
Sale and Delivery of Products
Livegg hereby agrees to sell to the Purchaser the System, Services or Products ordered under the PO. Sale and delivery of Systems includes Set-Up Services.
Unless provided otherwise in the Offer, terms of delivery for Products shall be [ex works] under Incoterms 2010. Following receipt of payment, Livegg shall notify the Purchaser in writing  days prior to delivery at which point the Products shall be ready for collection. Notification shall include a copy of the invoice and packing list. Products shall be packaged in a manner suitable for air and land transport, unless the PO states that Products should be packaged for sea transport. The Purchaser should arrange collection not later than 15 days from the delivery date. If Products have not been collected beyond a reasonable time following delivery, Livegg shall be entitled to charge the Purchaser storage fees at commercial rates.
The Purchaser shall have 20 days from collection of the Products to inform Livegg of any non-conformances with a PO such as too few or too many Products included in the delivery or that wrong Products were delivered or that Products are defective. If the Purchaser does not notify Livegg of any non-conformances within the 20 day period, the Products shall thereafter be deemed to have been accepted.
Livegg shall make good on any non-conformances as soon as reasonably possible, as follows:
In the case of too few Products delivered, Livegg shall deliver the balance of the Products in accordance with Section 4 above.
In the case of too many Products delivered, Livegg shall arrange collection of the extra Products from the Purchaser at Livegg's expense.
In the case of defective Products, Livegg shall repair or replace the defective Products as soon as reasonably possible, provided that if Livegg requires, the Purchaser shall first enable Livegg to examine the Products and confirm the defects are factory defects and not damage caused after delivery. Where Set-Up Services are set to be provided, then the examination may be made as part of those Services. If the defective Products must be shipped back to Livegg, then the Purchaser shall cover the costs and if Livegg confirms that the Products were defective from the factory, then Livegg will reimburse the costs to the Purchaser.
Set-Up Services shall be provided by personnel of Livegg physically attending the Purchaser's premises. All other Services shall be provided by remote over the Platform or by telephone (where required) unless the nature of the Services also requires physical attendance at the Purchaser's facilities.
For Set-Up Services and any other Services to be provided at the Purchaser's facilities, the Purchaser shall contact Livegg at (email@example.com) following Livegg's acceptance of the PO in order to coordinate date and times for provision of the Services and to arrange selection of appropriate personnel of the Purchaser that will receive the Services. Set-Up Services may only be provided once all Products have been delivered to the premises where the System will be installed. The Purchaser shall ensure that all personnel chosen to supervise or receive Services are suitably qualified and have the relevant skills.
In order for Livegg to provide the Set-Up Services and to properly install the System, the Purchaser must ensure that its relevant premises have all electronic, technical and communications features set out in the Offer. If Set-Up Services cannot be completed due to any non-adherence by the Purchaser with the instructions provided in the Offer or in any follow-up document, then Livegg will provide the Purchaser with a written report setting out the deficiencies. When the Purchaser notifies Livegg that it has rectified the deficiencies, the parties will coordinate a resumption of the Set-Up Services, provided that the Purchaser shall first reimburse Livegg for all additional costs incurred as a result of postponing the Set-Up Services.
Except for Set-Up Services, where possible all other Services shall be provided remotely by email or by telephone where required.
Livegg shall provide all Services to a professionally acceptable standard and in a timely manner.
Subject to the terms and conditions contained herein and subject to the payment of the License Fee as set forth in Section 7.3 below, Livegg hereby grants to the Purchaser a non-exclusive, revocable, non-transferable, non-sublicensable, royalty free right and license (the "License") to use all Software that is part of the System (consisting solely of Products and Software supplied by Livegg) solely for the purpose of operating the System and for the System to be connected to and communicate with the Platform, all in the manner consistent with the intended end-use of the System ("Licensed Uses").
Any use of the Software by the Purchaser that is not a Licensed Use is expressly prohibited. Without derogating from the generality of the foregoing, the following actions are expressly forbidden:
allowing any other party to have access to or use the Software;
copying the Software or any part of the Software;
using the Software with any trays, parts, components that are not Products purchased by Livegg or the use thereof is otherwise expressly permitted by Livegg;
reverse engineering or breaking down the Software into any component part;
making any changes to the Software; and
combining the Software with any other software unless expressly authorized by Livegg.
The License is subject to a License Fee as quoted in the Offer. The first License Fee shall be payable together with payment of the Purchase Price for the Products as detailed in Section 3. Unless the Offer provides otherwise, the License Fee shall be payable within 10 days of the start of each month by a standing order that the Purchaser shall set up with its bank. Invoice receipts will be issued following receipt of payment.
Livegg shall be entitled to update the License Fee once every calendar year.
If the Purchaser defaults on a License Fee payment by more than 15 days, Livegg shall be entitled to suspend provision of all Services via the Platform until such time as the License Fee is paid. If the License Fee remains unpaid for the next 15 days, Livegg shall be entitled to terminate the License by prior written notice to the Purchaser, but the License Fee shall remain due and owing in full to Livegg.
Late payments of License Fee shall entitle Livegg to charge interest as per Section 3.3. above.
If the Purchaser determines that any withholding tax must be deducted from payment of License Fees or any part of the Purchase Price, then the Purchaser shall first notify Livegg in writing and provide Livegg with any documents required by Livegg under applicable tax rules and regulations to submit to the Israeli Tax Authorities in order to avoid double taxation on the same payment. The Purchaser shall not deduct the withholding tax until Livegg has confirmed that it has received any required prior approvals from the Israeli Tax Authorities. If relief from double taxation is not available for any reason, then the applicable Purchase Price and License Fees shall be deemed to be increased so that the amounts that Livegg receive from the Purchaser after deduction of withholding tax shall be the same amounts that Livegg would have received had no withholding tax been applicable.
The License shall be valid for individual terms of 12 months each. Each time a term expires, a new term shall automatically commence unless either Party provides written notice to the other Party not later than 30 days prior to the end of a term that they no longer wish to renew the License. In such circumstance, the License shall terminate upon the expiration of the then applicable term. Livegg shall also be entitled to terminate the License if the Purchaser is in breach of any of the terms of the License or of any of these Terms and following the provision of written notice of the termination to the Purchaser in which the breach is detailed, the Purchaser fails to cure the breach within 10 days, following which the License shall be automatically terminated. Following termination of the License, the Software may no longer be used by the Purchaser and the Platform shall cease to communicate with the System and no further Services shall be provided in connection with the System.
Notwithstanding the foregoing, Livegg reserves the right at any time to modify, enhance, alter, adapt or replace the Software with any other Software that it owns or is permitted to use for such purposes, in each case provided that the overall purpose of the Software (sending data regarding poultry eggs in incubation to the Platform and analyzing the data) is not materially altered. Furthermore, Livegg reserves the right at any time to terminate all Licenses and to halt all communications between the Platform and the System. Such termination shall be effected by providing at least 60 days prior written notice to the Purchaser. If the License is terminated under this Section 7.9, then Livegg shall refund to the Purchaser a prorated portion of the License Fee if it is paid less regularly than on a monthly basis (e.g. quarterly, annually, etc.), equal to the portion of the payment period remaining following termination taking effect and such refund shall be the only amount payable by Livegg arising from such termination and the Purchaser shall not have any other claims of any kind against Livegg arising from the early termination.
Warranty of Products
Trays and other Products purchased from Livegg are warranted for a period of 12 months from the date of delivery (the " Warranty Period ") to be free and clear of defects in design, material and workmanship. If the Purchaser notifies Livegg within the Warranty Period of defects in the Products that are not consistent with this express warranty, then Livegg will repair or replace the defective Products subject to the following:
the Purchaser notifies Livegg of the defect in writing within 10 days of its discovery providing sufficient information for Livegg to understand the nature of the defect;
the Purchaser shall comply as soon as possible with any request to return the defective Product to Livegg, the Product packaged suitably to avoid any further damage. All expenses shall be paid for by the Purchaser, but Livegg shall reimburse the Purchaser for reasonable expenses if Livegg confirms that it is bound to repair or replace the Product under the terms of this warranty;
the Purchaser shall allow Livegg representatives to visit the Purchaser's premises and to examine the Product and use of the System at the Purchaser's premises to determine cause of defects;
Livegg shall not be responsible for and shall not be required to replace any Products that:
have been damaged in transit following delivery (e.g. damaged at collection, during shipping, unloading, storage, etc.), unless the delivery term quoted in the applicable offer places risk on Livegg;
have been subjected to incorrect use, storage, mishandling;
have been subjected to unauthorized repair, modification, adaptation; and
have been used in conjunction with parts, products and software that is not approved by Livegg.
Except for the express warranty provided in Section 8.1, all other warranties in connection with the Products, including without limit implied warranties of merchantability and fitness for purpose and all other express or implied warranties of any kind are hereby denied and shall not apply to the Products. Except for the rights for Products under warranty under Section 8.1 to be repaired or replaced, the Purchaser shall have no other rights arising in connection with defective Products and by purchasing the Products the Purchaser hereby expressly and unconditionally waives all other rights.
Warranty of Software and Platform
Livegg warrants and guarantees that the Platform will be operational and will communicate with the System in the manner intended, except for when downtime is reasonably required for periodic maintenance, repairs and modifications.
Livegg shall correct errors in the Software that prevent the System or Platform from operating correctly (“ Bugs ”) within the times set forth below. The Purchaser shall report Bugs to Livegg in sufficient detail reasonably necessary for Livegg to understand the problems caused and to determine the most appropriate reparatory action. For Bugs that prevent the Purchaser from using the System at all (“ Critical Bugs ”), Livegg shall respond to the reports within the same Israeli business day, unless the report is received less than 2 hours before the end of the business day, in which case the response shall be as soon as possible in the next business day. For all other Bugs, the response time shall be within two full business days. Livegg shall exert commercially reasonable efforts to fix all Critical Bugs or provide suitable workarounds until a fix is possible, within 3 business days of receipt of a report from the Purchaser regarding the Critical Bugs. All other Bugs shall be fixed or a suitable workaround provided as soon as reasonably possible under the circumstances. Livegg shall maintain an email helpline during normal business hours in Israel for the purpose of enabling Purchaser to obtain technical assistance and to report Bugs.
For as long as the License is valid and has not been terminated, Livegg shall ensure that the System receives all updates and bug fixes to Software that are made generally available to all other customers of Livegg.
Except as stated above, Livegg makes no representations and warranties regarding the performance of the System and the achievement of any particular results. No promises or guarantees are made regarding the quality and development of eggs that are incubated using the System and by Purchasing the Products, System or Services and using the Software under License, the Purchaser hereby fully, finally and irrevocably waives any and all claims of any kind that the Purchaser may have against Livegg in connection with the Products, System, Services and Software, except for those rights expressly stated herein.
Limitation of Liability
IN NO CIRCUMSTANCES WILL LIVEGG BE LIABLE TO THE PURCHASER, OR ANY OF PURCHASER'S SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, DISTRIBUTORS, REPRESENTATIVES, CUSTOMERS OR ANY OTHER PARTY FOR ANY INDIRECT OR CONSEQUENTIAL CLAIMS OR DAMAGES ARISING FROM THESE TERMS, THE PRODUCTS, SYSTEM, SERVICES AND SOFTWARE INCLUDING WITHOUT LIMITATION, CLAIMS FOR DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, WHETHER OR NOT LIVEGG WAS ADVISED OF THE POSSIBILITY THEREOF .
In all circumstances, Livegg's maximum liability to the Purchaser arising from these Terms, the Products, Systems, Services and Software shall be the total amount that the Purchaser has paid to Livegg in Purchase Price and License Fee in the 12 month period in which the relevant claim has arisen, provided that the Purchaser has more than one claim arising in more than one 12 month period, then the maximum liability shall be the total amount that the Purchaser has paid to Livegg in Purchase Price and License Fee in the more recent 12 month period. The foregoing is subject to any lower limit of liability imposed in connection with any claim in any other provision under these Terms.
No claim may be made against Livegg where the facts giving rise to such claim arose more than 12 months prior to the claim being made.
Indemnity and Insurance
It is hereby agreed and understood that the System and all Services (including consulting Services of any kind) are intended solely for the collection and analysis of data regarding the eggs during the incubation process and they are not intended to be used to verify the safety of eggs for consumption or any other use. Accordingly, the Purchaser shall ensure that it takes industry accepted means in order to test and verify eggs are safe for consumption or for any other intended purpose. Livegg shall accept no responsibility of any kind whatsoever for the consequences of the Purchaser selling, giving, providing, donating eggs that were incubated using the System to any party for any reason whatsoever and the Purchaser hereby agrees to fully indemnify and hold Livegg, its shareholders, directors, officers, employees, agents, distributors, consultants and other representatives harmless from and against any and all liability, damages, expenses or loss of any kind from any claims, actions, suits, judgments, proceedings, demands, recoveries or expenses, including, but not limited to, court costs and reasonable attorneys’ fees, arising out of, based on, or caused in connection with the Purchaser's eggs incubated in the System and the Purchaser's use of those eggs.
The Purchaser shall obtain and maintain in full force and effect for the period in which the License is valid and for any additional period during which the Purchaser may be held liable for any reason related to the Purchaser selling, giving, providing, donating eggs that were incubated using the System, whether by contract or by the laws of any jurisdiction in which the eggs are sold, provided or donated, general liability insurance and product liability insurance that is reasonable based upon industry standard terms, subject to worldwide territorial limits and jurisdiction and with limits of liability of not less than $2,000,000 per incident and in the aggregate and the Purchaser shall fully comply with all the terms of such policies. The limits of indemnity specified herein represent a minimum requirement and the Purchaser undertakes to assess the relevant exposure to liability and determine the limits of liability accordingly. It is further understood and agreed that the limits of indemnity specified herein shall not be deemed a limitation on Purchaser's indemnification liability under Section 11.1 above. Livegg shall be named as an additional insured under the Purchaser's policies and the insurance companies shall have waived any rights of subrogation against Livegg. The Purchaser shall provide Livegg with copies of the insurance policies, upon request and with certificates evidencing the policies remain valid and in full force and effect. Without derogating from Section 11.1 above, the Purchaser hereby expressly agrees that it shall not have any claims, demands or actions against Livegg or anyone on its behalf, concerning damage with respect to which it is entitled to receive indemnification under any of Purchaser's insurance policies; and Purchaser hereby waives, relieves and holds Livegg and anyone on its behalf harmless from and against any liability for such damage. The foregoing shall not apply for the benefit of any one who caused damage with malicious intent. All Purchaser's policies shall be renewed at least twenty (20) days prior to the respective expiration dates of existing policies. The insurance companies shall have agreed to notify Livegg in advance of cancelling any insurance policy.
Under no circumstances shall the Purchaser receive any rights in any of the intellectual property rights underlying the System, Products, Platform, Services and Software, except as expressly granted in the License. For the purposes hereof, "intellectual property rights" means all patents, patent applications, design rights, trademarks, trade names, domain names, confidential information, know how and trade secrets and any other similar intangible rights of any kind underlying the Systems, Products, Platform, Services and Software.
Section headings are for guidance purposes only and shall not be used in the interpretation of this Agreement.
No amendment to these Terms or to any other part of Sale Contracts shall be effective unless made in writing and signed by both Livegg and the Purchaser. No waiver of any rights shall be effective unless made in writing and signed by the Party making the waiver.
If any part of these Terms or any Sale Contract is held by a court of competent jurisdiction to be invalid or unenforceable for any reason, then such part shall be deemed removed therefrom as if not included from the start and the validity of the remaining provisions shall not be affected thereby. Where possible, the removed part shall be replaced with a new part that as closely as possible reflects the original intention of the parties without itself also becoming invalid.
These Terms and all Sale Contracts shall be governed and construed in accordance with the laws of the State of Israel without reference to its conflicts of laws provisions. The courts of Tel Aviv-Jaffa shall have sole and exclusive jurisdiction to determine any disputes arising in connection with these Terms or Sales Contracts.
Any notices to be provided under this Agreement shall be provided by email or facsimile, provided that confirmation of transmission can be obtained. Notices to Livegg shall be delivered to (email: firstname.lastname@example.org). Notices to the Purchaser shall be delivered to the contact details set out in its PO.