Free Software. The Platform may include third party “open source” or “Free Software” components that are subject to third party terms and conditions (“Third Party Terms”). If there is a conflict between any Third Party Terms and these Terms, then the Third Party Terms shall prevail but solely in connection with the related third party component. The Company represents and warrants that it is in compliance with the notice and attribution aspects of the Third Party Terms. The license terms, copyright notices and available source code with respect to Third Party Terms can be found at https://botika.io/oss/.

Table of Contents

Last Updated: May 7, 2024

These Terms of Service, as amended from time to time, together with any other terms, agreements and policies referenced herein (which constitute an integral part hereof) (these “Terms”) constitute a legally binding agreement between Botika E.Y Ltd., a company incorporated under the laws of the State of Israel (the “Company”) and the customer executing or otherwise accepting the Order Form which refer to these Terms (respectively, the “Customer” and the “Order Form“). The Terms govern the manner in which the Customer and its end-users (each, a “User”) may integrate, use and access the Company’s cloud-based Platform (as defined below) in a subscription model. The Order Form may be completed and entered-into in various ways, including online form, through a third-party marketplace, in-product screen or an offline form delivered by Customer to the Company via email or any other electronic or physical delivery mechanism. Execution of the Order Form or use of the Platform by the Customer will conclusively indicate Customer’s acceptance of these Terms. If there is any conflict or inconsistency between these Terms and the Order Form, these Terms shall prevail unless the Order Form specifically states otherwise.

1. The Platform

1.1. The Platform.

The Platform is a photo generation platform that allows users to create fashion product photos using synthetic models generated by artificial intelligence, as described in www.botika.io, which is provided on a Software-as-a-Service subscription based model (the “Platform”). Customer may access and use the Platform and the Licensed Photos (as defined below) solely for Customer’s own fashion business, as permitted by and subject to these Terms.

1.2. Subscription Limitations.

The right to integrate, use and access the Platform, as set forth in Section ‎‎1.1 above and the Licensed Photos, is granted solely to the Customer, and is limited, non-transferable, non-exclusive, non-assignable and non-sub-licensable. The Platform may only be used by individuals who: (i) can form legally binding contracts under applicable law, and (ii) are authorized to use the Platform pursuant to a Customer’s procedures and policies (if any). 

1.3. Modification or Discontinuation of the Platform

The Company may change or update the Platform at any time, including the availability of any feature, content or database, and the Company may impose limitations or restrictions on certain features and services or on the access to the Platform (or any part thereof), without notice or liability unless the Company considers certain change to be material, in which case the Company will notify Customer by posting an announcement on the Company’s website, through the Platform or by email. Furthermore, the Company may offer alternative or additional features to certain Customers, that may not be offered to others.

2. Free Trial; Free Tier; Pre-Released Services

2.1. Free Tier and Trial Services

The Company may offer, from time to time, some of its services, for limited free use (“Free Tier”) and may offer all of its services on free trial versions (“Trial Service”). The respective terms of the Free Tier or the Trial Service and the limitations imposed on them shall be as set forth in an Order Form, as applicable. The Company reserves the right to modify, cancel and/or limit the Free Tier and/or Trial Service at any time and without liability.

2.2. Pre-Released Services.

The Company may offer, from time to time, certain services in an alpha or beta versions (the “Pre-Released Services”) and will use best endeavors to identify the Pre-Released Services as such. Pre-Released Services are services that are still under development, and as such they may be incomplete, may contain bugs, suffer disruptions and not operate as intended and designated.

2.3. Governing Terms of Free Tier, Trial Service and Pre-released Services.

The Free Tier, the Trial Service and the Pre-Released Services are governed by these Terms, provided that notwithstanding anything in these Terms or elsewhere to the contrary, in respect of the Free Tier, Trial Services and Pre-Released Services (i) Free Tier, Trial Services and Pre-Released Services are licensed hereunder on as “As-Is” “As Available” basis, with no warranties, express or implied, of any kind; and (ii) IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF COMPANY, ITS AFFILIATES OR ITS THIRD-PARTY SERVICE PROVIDERS, UNDER, OR OTHERWISE IN CONNECTION WITH, THESE TERMS AND/OR THE FREE TIER AND THE PRE-RELEASED SERVICES EXCEED US$50. The Company makes no promises that any Free Tier, Trial Service and/or Pre-Released Services will be made available to the Customer and/or generally available.

3. Registration to the Platform

3.1. Account Registration

In order to use the Platform, each User shall register and create an account (the “Account”). The Company reserves the right to refuse a User’s registration or to block User’s access to the Platform, at the Company’s discretion.

3.2. Account Information

As part of the registration process, Users may be required to provide the Company with certain personal information (including, name, phone number, organizational or personal e-mail address, etc.) and to select a password. Customer is responsible that each User shall provide the Company with accurate, complete, and updated registration information. Customer shall notify the Company immediately of any breach of security or unauthorized use of an Account. Customer is solely responsible and liable for the activity that occurs in the Accounts and for the use of the Platform by its Users and for any losses, damages, liability and expenses incurred by the Company or a third party, due to any unauthorized use of the Account by either Customer or any other User or third party on his/her behalf.

4. Customer Data

4.1. License to Customer Data.

While using the Platform, certain data may be uploaded or transferred to the Platform to be processed by the Platform on the Customer’s behalf (the “Customer Data“). Customer Data may include data, information, files, documents, designs, graphics, photographs, images, illustrations and any other content that is uploaded or submitted, transmitted or otherwise made available, to or through the Platform by any User, to be processed by the Platform on Customer’s behalf (the “User Content”). As between the Customer and the Company, all rights in the Customer Data shall remain with Customer. Users must follow the Customer’s policies, guidelines and procedures concerning any use or transfer of Customer Data via the Platform. Customer hereby grants the Company and its Sub-processors (as defined below) an irrevocable, perpetual, non-exclusive, worldwide, royalty-free, fully paid, sub-licensable right and license to access, use, process, modify, copy, download, store, distribute and display the Customer Data, for the purpose of developing, maintaining, marketing and providing the Platform and as required to resolve technical and security problems or otherwise as permitted by these Terms or in writing by Customer. 

4.2. Customer Representations.

Customer represents and warrants that (i) Customer owns or has all the necessary licenses, rights, consents, approvals and permissions to grant the Company the aforementioned right and license and to authorize the Company and its Sub-processors access, use, process, copy, download, store, distribute and display the Customer Data, without infringing or violating any copyrights, privacy rights, publicity rights, trademarks or any other contractual, intellectual property or proprietary of any third party; (ii) any Customer Data and any use thereof do not and shall not violate any applicable laws, including those related to data privacy or data transfer and export or any policies and terms governing such Customer Data; and (iii) no sensitive data that is protected under special legislation and requires unique treatment (such as protected health information or credit, debit or other payment card data) will be transferred to the Platform.

4.3. Restrictions.

Users may not, and may not permit or aid others to upload, display, post, send, incorporate and/or contribute any User Content that: (i) infringes, violates, misuses or otherwise interferes with any copyright, patent, trademark, trade secret or other right of any third party; (ii) is defamatory, abusive, harassing, threatening, racist, or constitutes an invasion of a right of privacy of another person, or is otherwise offensive, violent, vulgar, obscene, pornographic, contains nudity, or otherwise harms or can reasonably be expected to harm any person or entity; (iii) is illegal or encourages or advocates illegal activity; (iv) posts or transmits any communication or solicitation designed or intended to obtain password, account, or private information from any third party; (v) contains viruses, trojan horses, worms, or any other computer programs designed to interrupt, destroy, or limit the functionality of the Platform or any system, computer software, hardware or telecommunications equipment; (vi) creates a false identity or impersonates another person; (vii) “stalks” or otherwise harasses another or is antisocial, disruptive, or destructive, including “flaming”, “spamming”, “flooding” and “trolling” as such terms are commonly understood and used on the internet; (viii) violates any applicable local, state, national or international law or regulation; or (ix) includes any personal information of others, including, without limitation, their names, addresses, email addresses or telephone numbers, unless Customer has permission from such persons to do so. Customer is solely responsible for any violation of the aforementioned by the Users and for any damage or loss to any other third party resulting therefrom. Except as otherwise is set forth herein, the Company shall not be obligated to maintain or backup any User Content or the Licensed Photos, and it may remove any User Content or the Licensed Photos from the Platform at any time, at its sole discretion. 

4.4. Liability.

Other than Company’s data protection obligations expressly set forth in Section ‎‎6 herein, Company assume no responsibility or liability for Customer Data or User Content, and Customer shall be solely responsible and liable for Customer Data and User Content and the consequences of using, disclosing, storing, or transmitting it. It is hereby clarified that Company shall not monitor and/or moderate the Customer Data or the User Content.

5. Intellectual Property and Right to Use

5.1. Company Intellectual Property.

All right, title and interest in the Platform and in the photos generated by the Platform for Customer (the “Licensed Photos”), including without limitation, any content, materials, software, know-how, data files, documentation, code, SDK, API, designs (including the “look and feel” of the Platform and any part thereof), graphics, text, media, photographs, images, illustrations, sketches, methodologies, artwork, names, logos, copyrightable materials, specifications, methods, procedures, information, interactive features, interface, GUI and trade secrets, trademarks and services marks (excluding Customer Data), any and all related or underlying technology and any updates, new versions, modifications, improvements, developments or derivatives thereof, belongs to the Company and its licensors and these Terms do not convey to Customer or the Users any interest in or to the Platform and the Licensed Photos, except for a limited right of use as set forth herein, terminable in accordance with these Terms. 

5.2. License Licensed Photos

Company hereby grants the Customer a non-exclusive, limited, worldwide license to display each Licensed Photo until the later of (i) the lapse of two (2) years commencing as of the date such License Photo was generated, or (ii) termination of these Terms (i.e., the Customer has no active Subscription to the Platform), and solely in connection with the Customer’s own fashion business. 

5.3. Prohibited Use.

Customer and its Users may not, and may not permit or aid others to: (i) use the Platform for any purpose other than the purpose explicitly set forth herein; (ii) copy, modify, alter, translate, emulate, create derivative works based on, or reproduce the Platform; (iii) give, publish, sell, distribute, assign, pledge or transfer (by any means), sublicense, rent, lease or otherwise share the rights granted under these Terms to any third party, including, but not limited to Customer’s affiliates, or use the Platform in any service bureau arrangement; (iv) reverse engineer, de-compile, decrypt, revise or disassemble the Platform or any part thereof, or extract source code from the object code of the Platform, or access or use the Platform in order to build or assist in building a competing product or service or for benchmarking purposes; (v) bypass any measures the Company may use to prevent or restrict access to the Platform, and/or take any action intended to circumvent or disable the operation of any security feature or measure of the Platform; (vi) access the Platform or Company’s systems via any means other than through the interface provided by the Company, or via automated means, including by crawling, scraping, caching or otherwise; (vii) use the Platform in any manner that is illegal or not authorized by these Terms; (viii) take any action that imposes or may impose (as determined by the Company in its sole discretion) an unreasonable or disproportionately large load on the Company’s (or the Company’s service providers’) infrastructure; (ix) interfere or attempt to interfere with the integrity or proper working of the Platform; (x) remove, deface, obscure, or alter Company’s or any third party’s identification, attribution or copyright notices, trademarks, or other proprietary rights affixed to or provided as part of the Platform; (xi) provide any unauthorized third party access to the Platform or the Licensed Photos; or (xii) use the Platform to send unsolicited or unauthorized communications or for any harmful or inappropriate purpose. Customer will be solely and fully liable for any losses, damages, liabilities and expenses incurred by Company or a third party due to any unauthorized use of the Platform by the Customer or by any of its Users or third party on behalf of the Customer.

5.4. Feedback

Customer may provide the Company suggestions, comments or other feedback regarding the Platform (the “Feedback”), and such Feedback shall become the Company’s sole property without any restrictions. The Company may use any Feedback at its sole discretion, free from any right of the Customer or any third party and without any obligation towards Customer. Customer explicitly and irrevocably waives any and all claims relating to any rights in or to Feedback. Customer shall not provide the Company with any Feedback which infringes any third party’s right. 

5.5. Reporting of Intellectual Property Infringements.

The Company does not permit copyright infringing activities and infringement of intellectual property rights via the Platform. To file a copyright infringement notification, please send a written communication to [email protected] and the Company will follow with additional instructions.

5.6. Reporting of Intellectual Property Infringements.

In the event that the Company believes that the Platform, or any part thereof, may infringe intellectual property rights of third parties, then the Company may, in its sole discretion: (i) obtain (at no additional cost to Customer) the right to continue to use the Platform; (ii) replace or modify the allegedly infringing part of the Platform so that it becomes non-infringing while giving substantially equivalent performance; or (iii) if the Company determines that the foregoing remedies are not reasonably available, then the Company may require that use of the (allegedly) infringing Platform (or part thereof) shall cease and in such an event Customer shall receive a prorated refund of any Fees paid for the unused portion of the Subscription Term (or the respective part thereof). THIS SECTIONS ‎5.6 STATE THE COMPANY’S SOLE AND ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY, FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION BY THE COMPANY AND/OR THE PLATFORM AND UNDERLYING TECHNOLOGY.

6. Privacy; Data Protection; AI; Anonymous Information

6.1. Privacy Policy.

Customer acknowledges and agrees that the use of the Platform by the Customer and the Users is governed by the Company’s Privacy Policy available at https://botika.io/privacy-policy/ (“Privacy Policy”) and the Data Processing Addendum available at: https://botika.io/dpa (the “DPA”). The Privacy Policy and the DPA shall constitute an integral part of these Terms. 

6.2. Artificial Intelligence.

Customer acknowledges that the Platform is provided by using artificial intelligence tools. While efforts have been made to ensure the quality and reliability of the Platform, there may be limitations, inaccuracies, or biases present, which are beyond the reasonable control of the Company.

6.3. Anonymous Information.

The Company may collect, monitor and freely use Anonymous Information (as defined below), inter alia to provide, develop, maintain, improve, demonstrate and market the Platform. “Anonymous Information” means information about the use of the Platform which does not enable identification of an individual, such as aggregated data, metadata, and analytic information.

7. Third Party Software and Services

7.1. Sub-processors.

 Customer acknowledges that the Platform is hosted and made available by certain sub-processors of the Company (the “Sub-processors“). The Company may remove, add or replace its Sub-processors from time to time, at its sole discretion.

7.2. Free Software.

The Platform may include third party “open source” or “Free Software” components that are subject to third party terms and conditions (“Third Party Terms”). If there is a conflict between any Third Party Terms and these Terms, then the Third Party Terms shall prevail but solely in connection with the related third party component. The Company represents and warrants that it is in compliance with the notice and attribution aspects of the Third Party Terms. The license terms, copyright notices and available source code with respect to Third Party Terms can be found at https://botika.io/oss.

7.3. Other Products and Services.

The Platform may integrate with and contain contain links to other third party services and may enable Customer and its Users to access, engage and procure certain services and products provided by third parties (the “Third Party Services”). Customer acknowledges and agrees that regardless of the manner in which such Third Party Services may be presented or offered to Customer, Company does not endorse any such Third Party Services, or shall be in any way responsible or liable with respect to any such Third Party Services. BY ACCESSING AND/OR USING THE THIRD PARTY SERVICES, CUSTOMER ACKNOWLEDGES THAT ITS ACCESS AND USE OF THE THIRD PARTY SERVICES ARE AT ITS SOLE DISCRETION AND RISK, AND CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING SUCH THIRD PARTY SERVICES ARE COMPLIANCE WITH CUSTOMER’S REQUIREMENTS AND ANY APPLICABLE LAW OR REGULATION. COMPANY BEARS NO RESPONSIBILITY AND/OR LIABILITY FOR ANY LINKS OR THIRD-PARTY SERVICES, INCLUDING WITHOUT LIMITATION, SUCH THIRD-PARTY SERVICES’ OPERABILITY OR INTEROPERABILITY WITH THE PLATFORM OR THE COMPANY’S SERVICES, SECURITY, ACCURACY, RELIABILITY, DATA PROTECTION AND PROCESSING PRACTICES AND THE QUALITY OF ITS OFFERINGS, AS WELL AS ANY ACTS OR OMISSIONS BY THIRD PARTIES. 

8. Subscription; Payments

8.1. Subscription Term and Fees.

The Platform is provided on a subscription basis for the term specified in the Order Form (the “Subscription” and the “Subscription Term”). During the Subscription Term Customer shall pay the Company the applicable fees set forth in the Order Form (the “Fees”). Unless expressly indicated otherwise, Fees are stated in US dollars. Customer hereby authorizes the Company, either directly or through the Company’s payment processing services, to charge the Fees via Customer’s selected payment method, upon the due date. The Company reserves the right to change the Fees at any time, upon notice to Customer, provided that any increase shall only become effective upon the end of the then-applicable Subscription Term. 

8.2. Subscription Auto-Renewal.

In order to ensure that Customer will not experience any interruption or loss of services, Customer’s Subscription shall automatically renew by default, unless canceled at least 30 days prior to its expiration, for a renewal period equal in time to the original Subscription Term (excluding any renewal period) at the then applicable Fees. Upon any Subscription auto-renewal, any credits to generate Licensed Photos that remain unused immediately prior to such Subscription Term expiration, shall be forfeited and  and such credits shall not be carried-forward to the renewed Subscription.

8.3. Taxes.

The Fees are exclusive of any and all taxes (including without limitation, value added tax, sales tax, use tax, excise, goods and services tax, etc.), levies, or duties, which may be imposed in respect of these Terms (the “Taxes”), except for Israeli income tax imposed on the Company. If Customer is located in a jurisdiction which requires Customer to deduct or withhold Taxes or other amounts from any amounts due to the Company, Customer shall promptly notify the Company, in writing, and the Company shall make reasonable efforts to avoid any such Tax withholding, provided, however, that in any case, Customer shall bear the sole responsibility and liability to pay such Tax and such Tax shall be “grossed up” and added on top of the Fees payable by Customer.

8.4. Payment Terms.

The Fees set forth in each Order Form are final. Customer shall pay each invoice in accordance with the payment terms set forth in the Order Form. Unless otherwise set forth in the Order Form, the Fees shall be paid in full for the applicable Subscription Term in advance, upon receipt of an invoice. All Fees are non-cancelable and non-refundable, unless otherwise required by mandatory law. Delinquent payments may bear compounded interest as of the payment due date and until paid in full,  at a rate equal to the lower of: (i) one and half percent (1.5%) per month, or (ii) the highest rate permitted by law. The aforesaid shall not derogate from any other right or remedy which the Company may be entitled to. Customer will be responsible for all reasonable expenses (including reasonable attorneys’ fees) incurred by the Company in collecting any payment. The Platform shall be made available to Customer for the applicable Subscription Term only following receipt by the Company of the Fees and any other amounts due by Customer. Payment in installments shall not imply that the Customer may terminate the Subscription during the Subscription Term prior to the payment of any installment.

8.5. Credit Card.

Credit card details may be needed to complete an order, and the Platform will be available to Customer following successful completion of payment. Customer will be notified accordingly. Customer authorizes the Company to continue to charge its credit card or any replacement card upon the beginning of each billing period for the agreed amount of such period, but failure to charge Customer’s card does not derogate from Customer’s payment obligation.

8.6. Credit Card.

Customer hereby authorizes the Company, either directly or through third party’s payment processing service, to charge the Fees via Customer’s selected payment method. Payments processed by a third party are in such third party’s exclusive responsibility and are subject to such third party’s terms and conditions. Customer agrees that such third party’s terms and conditions shall apply to its payment of the Fees. THE COMPANY WILL NOT BE LIABLE FOR THE ACTIONS OR OMISSIONS OF ANY THIRD-PARTY PAYMENT PROCESSOR. Customer hereby authorizes third-party payment processor to provide data and information to the Company. The Company may remove, add or replace any of its payment processing services from time to time or process payments itself, at its sole discretion.

9. Termination

9.1. Termination for Cause.

A breach of obligations by either party hereto which is not cured within 10 days from receiving notice thereof, shall entitle the non-breaching party to immediately terminate these Terms. Notwithstanding, if a party files for petition or action for relief under any bankruptcy, reorganization, insolvency or moratorium law or any other law for the relief of, or relating to, debtors, now or hereafter in effect, or makes any assignment for the benefit of creditors or takes or becomes subject to any action in furtherance of any of the foregoing, the other party will be entitled to terminate these Terms immediately.

9.2. Termination or Suspension by Company.

Company may terminate or suspend Customer’s use of and access to the Platform (or any part thereof) immediately, without prior notice or liability, in each of the following events: (i) the Company believes, in its sole discretion, that Customer or any third party, is using the Platform in a manner that may impose a security risk, may cause harm to the Company or any third party, and/or may create any liability to the Company or any third party; (ii) if the Company believes, in its sole discretion, that Customer or any third party, is using the Platform in breach of these Terms or applicable laws; or (iii) if the Company is unable to charge the Fees through Customer’s approved payment means or if any payment is or is likely to become, overdue. The aforementioned rights are in addition to any rights and remedies that may be available to the Company in accordance with these Terms and/or under any applicable law.

9.3. Termination by Customer.

Customer may terminate its Subscription to the Platform by cancelling its Subscription, whereby termination will take effect at the end of the then-current Subscription Term and shall not derogate from Customer’s obligation to pay the applicable Fees for the Subscription Term. 

9.4. Effect of Termination.

Unless expressly indicated otherwise in these Terms, the termination or expiration of these Terms shall not relieve Customer from its obligation to pay due Fees. Upon termination or expiration of these Terms, Customer’s Subscription and all rights granted to Customer and the Users hereunder shall terminate, and Customer shall cease to have access to the Platform, including to any Licensed Photos and any Customer Data. Customer is solely responsible for exporting all available Customer Data prior to such termination or expiration, and following termination or expiration, the Company may delete the Customer Data without retaining any copy thereof. In addition, Customer shall delete any Licensed Photos provided by the Company and used by the Customer, and shall return or destroy, at Company’s choice, Company’s Confidential Information (as defined below) then in Customer’s possession and Customer shall have no claim against the Company in this regard.

9.5. Survival.

All the provisions of these Terms which by their nature should survive termination (including, without limitation, confidentiality, ownership and intellectual property, warranty disclaimers, indemnification obligations and limitations of liability) shall remain in full force and effect following termination thereof, for any reason whatsoever. Termination of these Terms shall not relieve Customer from any obligation arising or accruing prior to such termination or limit any liability which Customer otherwise may have to the Company.

9. Confidentiality

10.1. Confidential Information.

For purposes of these Terms, the term “Confidential Information” shall mean any and all non-public business, product, technology and marketing data and information, whether written, oral or in any other medium disclosed or otherwise provided by either party (the “Disclosing Party”) to the other party (the “Receiving Party”), that is either identified as such or should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall not include any information which the Receiving Party can prove: (a) is publicly available at the time of disclosure or subsequently becomes publicly available through no act or omission of the Receiving Party in breach of these Terms; (b) is already known to the Receiving Party at the time of disclosure; (c) is disclosed to the Receiving Party free from confidentiality obligations by a third party who is not, to the knowledge of the Receiving Party, in breach of an obligation of confidentiality or; (d) was or is independently developed by the Receiving Party without use of or reliance upon the Confidential Information.

10.2. Confidentiality Obligations.

Receiving Party undertakes and warrants that: (i) it shall hold the Confidential Information of Disclosing Party in confidence and shall take all reasonable steps to safeguard and protect the Confidential Information including, without limitation, those steps that it takes to protect its own Confidential Information of a similar nature; (ii) it shall not disclose or otherwise provide any Confidential Information to any third party without the prior written consent of the Disclosing Party, except to those of its employees who have a need to know such Confidential Information for the purpose of fulfilling these Terms and provided that such employees are bound by written confidentiality obligations which are at least as restrictive as those contained herein; (iii) it shall not copy or use the Confidential Information for any purpose except to the extent required to perform its obligations, or exercise its rights, hereunder, whilst maintaining the Disclosing Party’s interests; and (iv) if the Receiving Party is requested or legally compelled to disclose any Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, the Receiving Party shall make best efforts to provide the Disclosing Party prompt notice thereof, and, at the request and expense of the Disclosing Party, uses reasonable efforts to limit such disclosure to the extent requested. Receiving party’s obligations with respect to Confidential Information shall expire seven (7) years from the date of termination or expiration of the last Subscription Term, unless under applicable law a longer period of protection applies.

10.3. Right to Disclose.

Company reserves the right to access, read, preserve, and disclose any information that it obtains in connection with the Platform as the Company reasonably believes necessary to: (i) satisfy any applicable law, regulation, legal process, subpoena or governmental request, (ii) enforce these Terms, including to investigate potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to Customer’s support requests, and/or (v) protect the rights, property or safety of the Company, its users or the public. 

11. Warranty and Disclaimer

11.1. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT (I) THE ACCESS TO AND USE OF THE PLATFORM OR OF THE LICENSED PHOTOS IS AT ITS SOLE RISK, (II)THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND RESULTS IS SOLELY WITH CUSTOMER, (III) THE OUTPUT GENERATED BY THE PLATFORM, INCLUDING WITHOUT LIMITATION, THE LICENSED PHOTOS, MAY BE RANDOM, AND SHOULD BE EVALUATED FOR ACCURACY AS APPROPRIATE FOR THE CUSTOMER’S USE CASE, INCLUDING BY EMPLOYING HUMAN REVIEW OF SUCH OUTPUT, AND (IV) DUE TO THE NATURE OF THE PLATFORM, THE LICENSED PHOTOS THE LICENSED PHOTOS MAY NOT BE UNIQUE, AND SIMILAR PHOTOS MAY BE GENERATED BY THE PLATFORM FOR OTHER CUSTOMERS OR USERS OF THE PLATFORM.

11.2 EXCEPT AS EXPLICITLY SET FORTH HEREIN, THE PLATFORM INCLUDING WITHOUT LIMITATION, THE LICENSED PHOTOS ARE SUPPLIED “AS IS”, AND WITHOUT WARRANTIES, GUARANTEES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, COMMON LAW OR OTHERWISE. COMPANY DOES NOT WARRANT THAT THE USE OF THE PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE OR WILL MEET CUSTOMER’S SPECIFIC REQUIREMENTS OR EXPECTATIONS. 

11.3. COMPANY MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, REGARDING THE PLATFORM AND THE LICENSED PHOTOS AND CUSTOMER’S USE THEREOF, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AVAILABILITY, SECURITY, COMPATIBILITY OR NON-INFRINGEMENT. WITHOUT DEROGATING FROM THE FOREGOING, COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR: (I) ANY ERRORS, MISTAKES, OR INACCURACIES OF THE PLATFORM AND THE LICENSED PHOTOS, (II) ANY UNAUTHORIZED ACCESS TO OR USE OF CUSTOMER’S SERVERS OR DEVICES AND ANY INFORMATION STORED THEREIN, (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION, LOSS OR LEAK OF DATA OR OTHER COMMUNICATIONS, AND/OR (IV) ANY DELAYS, DELIVERY FAILURES, OR ANY OTHER LOSS OR DAMAGE RESULTING FROM THE HOSTING, STORAGE OR TRANSFER OF SOFTWARE OR DATA OVER COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, AND THE PERFORMANCE OF ANY THIRD-PARTY COMMUNICATION, HOSTING OR STORAGE PROVIDER.

12. Limitations of Liability

NOTWITHSTANDING ANYTHING IN THESE TERMS OR ELSEWHERE TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:

12.1. IN NO EVENT SHALL COMPANY, ITS SHAREHOLDERS, DIRECTORS, OFFICERS, AFFILIATES, AGENTS, MEMBERS OR EMPLOYEES BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY: (I) SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR INDIRECT DAMAGES; (II) LOSS OF DATA, INFORMATION, GOODWILL, PROFITS, SAVINGS, OR PURE ECONOMIC LOSS; (III) THE FAILURE OF INDUSTRY STANDARD SECURITY MEASURES AND PROTECTIONS; AND/OR (IV) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES; REGARDLESS OF (A) WHETHER COMPANY ITS AFFILIATES OR THIRD-PARTY PROVIDERS, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE; OR (B) THE THEORY OR BASIS OF LIABILITY (SUCH AS, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT). 

12.2. CUSTOMER SPECIFICALLY AGREES THAT COMPANY IS NOT RESPONSIBLE OR LIABLE FOR ANY UNLAWFUL, EXPLICIT OR OTHERWISE OBJECTIONABLE CONDUCT OF ANY OTHER PARTY ON OR THROUGH THE PLATFORM, OR FOR ANY INFRINGEMENT OR VIOLATION OF CUSTOMER’S RIGHTS BY ANY OTHER PARTY, INCLUDING, WITHOUT LIMITATION, PRIVACY RIGHTS.

12.3. COMPANY’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY FOR ALL DIRECT CLAIMS, DAMAGES AND LOSSES (WHETHER IN CONTRACT, TORT OR OTHERWISE), IS LIMITED TO THE FEES PAID TO THE COMPANY FOR USE OF THE PLATFORM IN THE SIX (6) MONTHS PRECEDING THE CAUSE OF THE CLAIM.

13. Limitations of Liability

13.1. Indemnification.

Customer shall defend, indemnify, and hold harmless the Company and its affiliates, officers, directors, employees and agents from and against any and all claims, damages, obligations, liabilities, loss, reasonable expense or costs  incurred as a result of or in connection with (i) a third party claim, suit or proceeding that use of the Customer Data and any other content provided by Customer and/or the Users, or the use of the Platform by the Customer and/or the Users infringes any intellectual property rights or other rights of a third party; or (ii) misuse of the Platform by Customer, the Users or any third party using an Account. 

14. Miscellaneous

14.1. Amendments.

The Company reserves the right to change these Terms at any time by posting a new version at https://botika.io/terms-of-service/. In the event of a material change, Company shall notify the Customer by posting a notice in the Platform or in the Company’s website, or by sending the Customer an email. Any such modifications shall become effective immediately upon posting.

14.2. Export Control.

The Platform may be subject to Israeli, U.S. or foreign export controls, laws and regulations (the “Export Controls”), and Customer agrees and confirms that: (i) Customer is not located or uses, exports, re-exports or imports the Platform (or any portion thereof) in or to, any person, entity, organization, jurisdiction or otherwise, in violation of the Export Controls; (ii) Customer is solely responsible for complying with applicable Export Controls which may impose additional restrictions, prohibitions or requirements on the use of the Platform.

14.3. Customer’s Reference

Customer acknowledges and agrees that the Company has the right to use Customer’s name and logo to identify Customer as a customer of Company or user of the Platform, on the Company’s website, marketing materials or otherwise by public announcements, and that the Company may use any User Content in connection with the Platform’s marketing efforts on social media. Customer may revoke such right, at any time, by contacting Company at [email protected] The publication of any additional content related to the Customer’s use of the Platform (other than mere reference to the Customer as set forth above) shall require the Customer’s prior approval (which may not be unreasonably withheld or delayed). Customer agrees that the Company may publish a case study on the Customer’s use of the Platform, subject to the Customer’s approval of the content of the case study (which may not be unreasonably withheld or delayed).

14.4. Force Majeure.

Neither Company nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, interruption or failure of the Internet or any utility service, failures in third-party hosting services, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.

14.5. Governing Law; Jurisdiction.

These Terms and its performance shall be governed by the laws of the State of Israel, without regard to conflict of laws’ provisions that would result in the application of the laws of any other jurisdiction. The parties hereto submit the exclusive jurisdiction to the courts of Tel-Aviv-Jaffa.

14.6. Class Action Waiver.

WHERE PERMITTED UNDER APPLICABLE LAWS, CUSTOMER AND COMPANY AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both Customer and the Company agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.

14.7. Entire Agreement

These Terms (and the other terms, agreements and policies referenced herein) constitute the entire agreement between Customer and the Company with respect to Customer’s use of the Platform, and supersede all prior or contemporaneous understandings regarding such subject matter.

14.8. Assignment.

Company may assign at any time any of its rights and/or obligations hereunder to any third party without Customer’s consent. Customer may not assign any of its rights or delegate any obligations hereunder, in whole or in part without the prior written consent of Company, and any attempt by a Customer to do so shall be deemed null and void.

14.9. Relationship of the Parties; No Third Party Beneficiaries.

The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third party beneficiaries to these Terms.

14.10. Severability.

In the event that a court of competent jurisdiction finds any provision of these Terms to be illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect, and such provision shall be reformed only to the extent necessary to make it valid, enforceable and legal.

14.11. No Waiver.

The failure of the Company to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed by Company in writing.

For any questions or queries about these Terms or the Platform in general, please do not hesitate to contact the Company via e-mail [email protected] or postal mail (to the following address: 98 Derech Begin, Tel-Aviv, Israel, 6701301 ).