End user agreement for WebLOAD Professional
RADVIEW SOFTWARE, LTD.
READ CAREFULLY BEFORE USING THE SOFTWARE PRODUCT. THIS IS A LEGAL AGREEMENT BETWEEN YOU (WHETHER AN INDIVIDUAL OR A FORMAL LEGAL ENTITY) ("CUSTOMER") AND RADVIEW SOFTWARE LTD. ("RADVIEW"). BY PRESSING THE "YES" BUTTON, CUSTOMER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. IN THE EVENT THAT YOU ENTER INTO A SIGNED SOFTWARE LICENSE AND MAINTENANCE AGREEMENT WITH RADVIEW FOR THE SOFTWARE PRODUCT, THE SIGNED SOFTWARE LICENSE AND MAINTENANCE AGREEMENT SHALL SUPERSEDE THIS AGREEMENT.
ARTICLE 1.0. DEFINITIONS.
The terms listed below mean the following throughout this Agreement:
1.1.Confidential Information: Sensitive or proprietary information pertaining to a party’s principal business or product offering(s) which such party has marked confidential or has otherwise informed the other party of its confidential nature, has not publicly released and which is not otherwise publicly available.
1.2.CPU: The central processing unit upon which the Software Product is installed.
1.3.Documentation: The documentation for the Software Product supplied by RADVIEW to assist Users(s) in the use of the Software Product.
1.4.Effective Date: The date on which a fully enabled version of the Software Product is made available to CUSTOMER.
1.5.Enhancement: A modification, improvement, bug fix, or upgrade of the Software Product commercially released by RADVIEW, which do not significantly increase the functionality of the Software Product, including but not limited to any corrections released by RADVIEW for the purpose of providing a correction of an error, additions, and modifications, as the context may require, but excluding New Features.
1.6.License: The non-exclusive, non-transferable right granted by RADVIEW to CUSTOMER permitting the use of the Software Product and Documentation, all upon and subject to the terms and conditions of this Agreement.
1.7.License Fee: A fee payable by CUSTOMER to RADVIEW for the License of the Software Product.
1.8.License File: A file run during the installation of the Software Product defining the scope and duration of the License granted hereunder (including, among other things, the number of authorized CPUs, Users, Probing Client, Virtual Clients and the License term).
1.9.Maintenance Fee: An annual fee payable by CUSTOMER to RADVIEW for the Software Product.
1.10.Maintenance Period: The twelve (12) month period commencing on the Effective Date and each subsequent twelve (12) consecutive month period thereafter during the term of this Agreement.
1.11New Features: Any and all added software that contains additional features leading to a significant or noticeable increase in functionality of the Software Product and/or to adjustment of the Software Product to new industry protocols and the alike.
1.11.Probing Client: A single artificial client entity that simulates a single real client accessing the web application that is being tested.
1.12.Proprietary Right: A patent, copyright, trademark, trade secret, or other proprietary or intellectual property right.
1.13.Software Product: The executable code version of the single, specific RADVIEW computer software product being furnished and licensed to CUSTOMER pursuant to this Agreement.
1.14.User: An authorized employee of CUSTOMER or a temporary employee, consultant or agent working for CUSTOMER and on behalf of CUSTOMER for whom the CUSTOMER has paid the applicable License fee to use the Software Product as set forth in this License.
1.15.Virtual Clients: Multiple artificial client entities that simulate multiple real clients accessing the web application that is being tested.
ARTICLE 2.0. LICENSE PROVISIONS.
2.1. Grant of License.
2.1.1. Upon and subject to the terms and conditions of this Agreement, RADVIEW hereby grants to CUSTOMER the License to use the Software Product and Documentation, solely for CUSTOMER’s business operation.
2.1.2.The License for the Software Product shall commence on the Effective Date and shall continue in effect thereafter for the period specified in the License File unless and until the License for the Software Product or this Agreement is terminated in accordance with the terms and conditions of this Agreement.
2.1.3.At CUSTOMER’s request, and subject to CUSTOMER being in compliance with its obligations under this Agreement and payment of the additional License Fee and Maintenance Fee therefor, RADVIEW agrees to increase the maximum number of Virtual Clients and/or the maximum number of Probing Clients and/or the maximum number of WebLoad Workstations. In such event, CUSTOMER shall, within thirty (30) days of its receipt of an invoice from RADVIEW, pay (a) RADVIEW’s additional License Fee for such increase, plus (b) a portion of the annual Maintenance Fee for such increase, prorated according to the remaining portion of the then-current Maintenance Period. There is no limitation on the size of the increase in the maximum number of Virtual Clients or maximum number of Probing Clients or maximum number of WebLoad Workstations that CUSTOMER may request; provided, that RADVIEW’s then-current price list covers increases requested.
2.2. Conditions of Use.
2.2.1.CUSTOMER may not copy the Software Product except for (a) such copies or portions thereof as may be generated as part of the normal operation of the Software Product and (b) archival copies of the Software Product as may be reasonably necessary to support CUSTOMER’s use thereof under this Agreement and (c) for disaster recovery purposes. CUSTOMER may make copies of the Documentation as CUSTOMER reasonably determines to be necessary to support CUSTOMER’s User(s). CUSTOMER may not otherwise copy or reproduce any of the Documentation. CUSTOMER agrees to reproduce and incorporate all Proprietary Rights notices of RADVIEW and its licensors in each such copy of the Software Product and Documentation, and all such copies, shall be the property of RADVIEW and subject to the terms and conditions of this Agreement.
2.2.2.At RADVIEW’s request, CUSTOMER shall provide RADVIEW with a list of all copies and locations of the Software Product and Documentation and RADVIEW may from time to time, upon written notification to CUSTOMER, perform an audit of the CUSTOMER’s use of the Software Product and Documentation and CUSTOMER’s compliance with the provisions of this Agreement. Any such audit shall be made during CUSTOMER’s normal business hours. RADVIEW shall notify CUSTOMER, in writing, ten (10) business days prior to such audit. Such audit shall not unreasonably interfere with CUSTOMER’s business operations and CUSTOMER agrees to cooperate with RADVIEW in any such audit.
2.2.3.CUSTOMER shall not modify, disassemble, reverse compile, or otherwise reverse engineer the Software Product. CUSTOMER shall not translate or make derivative works of the Software Product or Documentation.
2.2.4.The Software Product shall be used only to evaluate the performance of Web applications running on servers that are located on CUSTOMER’s premises and are owned and operated by CUSTOMER. By way of example and not limitation, the use of the Software Product on a “service bureau” basis or otherwise to provide services on behalf of or for the benefit of CUSTOMER’s customers or any other third parties on either a fee or gratis basis is prohibited.
2.2.5.Each copy of the Software Product Licensed hereunder may be installed on a single CPU only. In the event CUSTOMER wishes to transfer or to install a copy of the Software Product on another CPU, CUSTOMER will be required either to uninstall the copy from the first CPU or pay the required License fees for each additional copy of the Software Product installed on additional CPUs.
2.2.6.CUSTOMER shall only use, on a concurrent basis, the number of Virtual Clients for which CUSTOMER has paid the applicable License Fee, and which shall be tracked in the License File during the use and operation of the Software. CUSTOMER shall also use the WebLoad Workstation software only on the number of workstations for which CUSTOMER has paid the applicable License Fee.
2.2.7.THE SOFTWARE PRODUCT IS NOT DESIGNED OR INTENDED FOR USE IN ONLINE CONTROL OF AIRCRAFT, AIR TRAFFIC, AIRCRAFT NAVIGATION OR AIRCRAFT COMMUNICATIONS, OR IN THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF ANY NUCLEAR FACILITY. CUSTOMER SHALL NOT USE OR REDISTRIBUTE THE SOFTWARE PRODUCT FOR SUCH PURPOSES.
2.3. License and Maintenance Fees.
2.3.1.In consideration of the License for the Software Product granted by RADVIEW under this Agreement, CUSTOMER agrees to pay the License Fee to RADVIEW within thirty (30) days of the Effective Date.
2.3.2.The Maintenance Fee for the initial Maintenance Period shall be the applicable amount set forth in the applicable purchase order, which amount shall be payable within thirty (30) days of the Effective Date. The Maintenance Fee for each subsequent Maintenance Period is subject to increase. RADVIEW shall notify CUSTOMER of any increase in the Maintenance Fee at least sixty (60) days prior to the end of the then current Maintenance Period. The Maintenance Fee for each such subsequent Maintenance Period shall be payable on the later of (a) the commencement date of such Maintenance Period, or (b) the thirtieth (30th) day following CUSTOMER’s receipt of RADVIEW’s invoice for such Maintenance Fee.
2.3.3.In the event CUSTOMER resumes its subscription for Maintenance Services (as defined below) after having previously refused or discontinued its subscription for Maintenance Services, CUSTOMER shall be required to pay (i) the Maintenance Fee for the period for which CUSTOMER had refused or discontinued its subscription for Maintenance Services, (ii) a 50% surcharge on the Maintenance Fee for the period CUSTOMER had refused or discontinued its subscription of Maintenance Services to cover RADVIEW’s costs of upgrading CUSTOMER to the current release of the Software Product, and (iii) the Maintenance Fee for the new Maintenance Period. All of the foregoing Maintenance Fees shall be at the RADVIEW’s then current list price.
2.3.4.Except as otherwise specifically set forth in this Agreement, ALL LICENSE FEES AND MAINTENANCE FEES ARE NON-REFUNDABLE.
ARTICLE 3.0. MAINTENANCE PROVISIONS.
3.1. Maintenance Services.
3.1.1.Subject to the Maintenance Conditions (as defined in Appendix A) and subject to CUSTOMER paying the Maintenance Fee, RADVIEW agrees to provide CUSTOMER with the maintenance services provided in Appendix A attached hereto (the “Maintenance Services”) for the Software Product.
3.1.2.Each Enhancement of the Software Product delivered by RADVIEW to CUSTOMER under this Agreement shall be considered to be part of the Software Product for purposes of this Agreement, and, likewise, each update of the Software Product Documentation delivered by RADVIEW to CUSTOMER shall be considered to be part of such Documentation for purposes of this Agreement. RADVIEW and CUSTOMER agree that each party’s rights, restrictions, and obligations under this Agreement with respect to the Software Product and Documentation shall also extend and apply to all Enhancements and updates thereof.
ARTICLE 4.0. PROPRIETARY RIGHTS; CONFIDENTIALITY.
4.1. CUSTOMER shall not have any right, title, or interest in the Software Product, or Documentation, nor in any Proprietary Rights related thereto, except for CUSTOMER’s right to use the Software Product and Documentation in accordance with this Agreement. RADVIEW reserves all rights not expressly granted by it to CUSTOMER under this Agreement.
4.2. CUSTOMER agrees not to sell, transfer, publish, disclose, display, copy (except as provided in Section 2.2.1), or otherwise make available to any third party the Software Product or Documentation.
4.3. CUSTOMER agrees to (a) secure and protect all copies of the Software Product and Documentation in a manner consistent with CUSTOMER’s obligations under this Agreement, and (b) take appropriate action by instruction or agreement with CUSTOMER’s employees, temporary employees, consultants, or other third parties who are permitted access to the Software Product(s) or Documentation in order to satisfy CUSTOMER’s obligations hereunder.
4.4.Each party also agrees not to use Confidential Information of the other party except to the extent required to implement, maintain, and support the Software Product for CUSTOMER’s use under this Agreement. Notwithstanding the foregoing, a party may disclose Confidential Information of the other party to those employees and contractors of the first party who have a need to know such Confidential Information in order to implement, maintain, and support the Software Product for CUSTOMER’s use under this Agreement; provided, that such disclosure and use is made subject to the same restrictions as are set forth herein.
4.5.Either party may publicly disclose the existence of this Agreement, but neither party shall disclose details of the Agreement, nor quote the other party, without written consent from the other party.
4.6.The Software Product may contain software developed by Sun Microsystems Inc., World Wide Web Consortium, RSA Data Security Inc., Consensus Development Corporation, Global Majic Software Inc., Microsoft Corporation, Software FX, Inc., Fairpoint Technologies, Inc. and Stingray Software Inc., among others (hereinafter, “the Licensors”). CUSTOMER acknowledges that the Licensors are third party beneficiaries under this License Agreement.
ARTICLE 5.0. CUSTOMER’S RESPONSIBILITIES.
5.1. Unless otherwise set forth in an addendum to this Agreement, CUSTOMER is responsible for (a) any interfacing between the Software Product and all other software and database(s) used by CUSTOMER, and (b) installing, managing, and operating the Software Product.
5.2. Any sales, use, or other taxes (excluding only any tax based on RADVIEW’s net income), assessments, or other governmental fees or charges arising from any payments made or to be made by CUSTOMER to RADVIEW under this Agreement or any Addendum hereto, or from the implementation, licensing, or use of the Software Product or Documentation, or from any Maintenance Services or other services provided by RADVIEW to CUSTOMER, or otherwise related to or arising out of this Agreement, are the responsibility of and shall be paid by CUSTOMER or, if RADVIEW is required to pay the same, shall be reimbursed by CUSTOMER to RADVIEW.
5.3. CUSTOMER shall comply with all export and import laws, rules, and regulations related to CUSTOMER’s implementation, license, and/or use of any Software Product(s) or Documentation. CUSTOMER shall be responsible for and shall pay (or reimburse RADVIEW for) all export and import duties, fees, and other governmental charges, however designated, associated with CUSTOMER’s implementation, license, or use of the Software Product, or Documentation outside the United States.
5.4. All training, implementation, consulting, and other services provided by RADVIEW to CUSTOMER (excepting only Maintenance Services provided under Article 3.0), including reasonable travel expenses, will be billed separately by RADVIEW to CUSTOMER at RADVIEW’s then-current standard rates for the services so provided.
5.5. All amounts payable by CUSTOMER to RADVIEW under this Agreement shall, except to the extent that different payment terms therefor are set forth in this Agreement, be payable in full within thirty (30) days of CUSTOMER’s receipt of an invoice therefor from RADVIEW.
ARTICLE 6.0. LIMITED WARRANTY; LIMITATION OF WARRANTIES.
6.1. RADVIEW hereby grants to CUSTOMER a sixty (60) day Product Warranty, as defined below, commencing on the Effective Date and continuing for sixty (60) consecutive days. RADVIEW warrants that the Software Product will perform in accordance with its Documentation in all material respects (the “Product Warranty”).
6.2. CUSTOMER’s sole and exclusive remedy for any breach of the Product Warranty shall be to have RADVIEW use commercially reasonable efforts to (i) modify the Software Product to correct the defect giving rise to such breach, or (ii) provide CUSTOMER with another method of achieving the desired effect within a reasonable period, not to exceed an additional sixty (60) days from RADVIEW’s receipt of written notification of such defect from CUSTOMER (“Cure Period”).
6.3. If within said Cure Period, RADVIEW is unable to (i) modify the defective Software Product in such a way as to correct said defect, or (ii) provide CUSTOMER with another method of achieving the desired effect, CUSTOMER shall be entitled to terminate the License of the Software Product by giving written notice thereof to RADVIEW within ten (10) days following the end of the Cure Period. In such event, CUSTOMER shall be entitled to a refund of any License Fee paid to CUSTOMER for the Software Product, together with any unused, prepaid Maintenance Fee paid by CUSTOMER to RADVIEW for the Software Product.
6.4. EXCEPT FOR THE PRODUCT WARRANTY AND THE RIGHTS WARRANTY SET FORTH IN SECTION 7.1, RADVIEW MAKES AND CUSTOMER RECEIVES FROM RADVIEW NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WITH RESPECT TO THE SOFTWARE PRODUCT, DOCUMENTATION, MAINTENANCE SERVICES, THIRD PARTY SOFTWARE OR OTHER SERVICES. RADVIEW SPECIFICALLY DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
ARTICLE 7.0. INFRINGEMENT CLAIMS.
7.1. RADVIEW warrants to CUSTOMER that RADVIEW has all such rights as are necessary for RADVIEW to license the Software Product to CUSTOMER in the manner set forth in this Agreement (the “Rights Warranty”).
7.2. CUSTOMER agrees to notify RADVIEW promptly in writing of any threatened or pending judicial action brought against CUSTOMER alleging that CUSTOMER’s use of the Software Product infringes a valid United States patent or copyright or constitutes misuse or misappropriation of any United States trade secret (“Infringement Claim”). If CUSTOMER is otherwise in compliance with its obligations under this Agreement
RADVIEW shall indemnify and defend such action at its own expense and will pay (a) the legal fees of counsel engaged by RADVIEW to defend CUSTOMER, (b) any costs and damages awarded against CUSTOMER in such action, and (c) any amount agreed to be paid by RADVIEW in settlement of such action. RADVIEW’s foregoing obligations are subject to and conditioned upon RADVIEW having the sole control of the defense of such action, all negotiations, and its settlement, and CUSTOMER cooperating fully with RADVIEW in such defense.
7.3. In the event that a final injunction is obtained against CUSTOMER’s use of the Software Product by reason of an Infringement Claim, RADVIEW shall (or, at any time prior thereto, RADVIEW at its option may), at its own expense, either (a) procure for CUSTOMER the right to continue to use the infringing Software Product, or (b) replace or modify the infringing Software Product to make its use non-infringing while being capable of performing the same function. Notwithstanding the foregoing, if RADVIEW, in its sole discretion, determines that neither of said options is reasonably available to it, RADVIEW, at its option, may terminate the License of the infringing Software Product, in which event RADVIEW shall refund to CUSTOMER (i) a pro rata portion, if any, of the License Fee paid by CUSTOMER for the infringing Software Product, which pro rata portion shall be a fraction, the numerator of which shall be equal to the number of months, if any, remaining from the date the termination becomes effective until the occurrence of the fifth (5th) anniversary of the Effective Date, and the denominator of which shall be equal to sixty (60), and (ii) a pro rata portion of any prepaid Maintenance Fees for the infringing Software Product, which pro rata portion shall be based on the remaining term of the then-current Maintenance Period.
7.4. RADVIEW shall have no obligation to CUSTOMER with respect to any Infringement Claim to the extent that such Infringement Claim is based on (a) CUSTOMER’s use of any non-current version of the Software Product, defined as the most recent release and the release just prior to the most recent release, to the extent that CUSTOMER’s liability for such Infringement Claim would have been avoided by the use of a more recent version of the Software Product which had been provided by RADVIEW to CUSTOMER, or (b) the combination, operation, or use of the Software Product with software or equipment which was not provided by RADVIEW, to the extent that CUSTOMER’s liability for such Infringement Claim would have been avoided in the absence of such combination, operation, or use.
7.5. Except as otherwise specifically set forth in this Article, RADVIEW shall have no liability to CUSTOMER with respect to any breach of the Rights Warranty or any alleged or actual infringement, misuse, misappropriation, or other violation of a third party’s Proprietary Rights related to the Software Product, or any part thereof or CUSTOMER’s use thereof.
ARTICLE 8.0. LIMITATION OF LIABILITY.
8.1. Neither party shall be liable to the other for any delay or failure to perform any of such party’s obligations under this Agreement if such delay or failure arises from any cause or causes beyond the reasonable control of such party.
8.2. EXCEPT AS SPECIFICALLY DESCRIBED BELOW, CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES AND RADVIEW'S ENTIRE LIABILITY FOR ANY BREACH OF THIS AGREEMENT BY RADVIEW ARE AS SET FORTH IN ARTICLES 6.0 AND 7.0 HEREOF. THE FOREGOING IS NOT HOWEVER INTENDED TO LIMIT THE LIABILITY OF EITHER PARTY ARISING AS A RESULT OF THE NEGLIGENT ACTS OF EMPLOYEES OF SUCH PARTY WHICH ARE UNRELATED TO THE USE OR PERFORMANCE OF THE SOFTWARE PRODUCT, AND WHICH RESULT IN PERSONAL INJURY OR PROPERTY DAMAGE.
8.3.NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY'S RIGHTS, REMEDIES OR LIABILITY SHALL BE LIMITED HEREUNDER IN ANY MANNER AS TO ANY BREACH OF THIS AGREEMENT WITH RESPECT TO ANY INTELLECTUAL PROPERTY, PROPRIETARY RIGHTS OR CONFIDENTIAL INFORMATION OF THE OTHER PARTY OR AS TO ANY MISAPPROPRIATION, INTENTIONAL OR OTHERWISE, THEREOF.
8.4EXCEPTING ONLY AS SPECIFICALLY PROVIDED IN THE IMMEDIATELY PRECEDING PARAGRAPH, IN NO EVENT SHALL RADVIEW BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE LOSSES OR DAMAGES (INCLUDING LOSSES OR DAMAGES FOR ANY LOST REVENUES, PROFITS, OR DATA), EVEN IF IT HAS BEEN ADVISED OR MADE AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES AND REGARDLESS OF WHETHER THE CLAIM IS BASED ON PERFORMANCE OR NON-PERFORMANCE OF ANY SOFTWARE PRODUCT, BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORT, STRICT LIABILITY, OR OTHER THEORY OF LIABILITY.
ARTICLE 9.0. TERMINATION.
9.1. RADVIEW, at its option, shall be entitled to suspend or terminate, in part or whole, this Agreement upon the occurrence of any material breach or default by CUSTOMER of any of CUSTOMER’s obligations under this Agreement. If CUSTOMER’s breach or default is of a nature which may be cured by CUSTOMER, then RADVIEW may exercise its right to terminate this Agreement only if such breach or default continues uncured for a period of thirty (30) days following CUSTOMER’s receipt of written notice of such breach or default.
9.2. CUSTOMER agrees that, in the event of any termination of the Agreement CUSTOMER shall, within fifteen (15) days from the date CUSTOMER receives written notification of such termination, purge all copies of the Software Product and Documentation from all computers and storage media on which CUSTOMER has maintained them, destroy all copies of the Software Product and Documentation provided to or made by CUSTOMER under this Agreement, and promptly certify in writing to RADVIEW that the same have been purged and destroyed.
9.3. Termination of this Agreement shall not relieve either party of any payment or other obligation under this Agreement which was to have been performed by such party prior to the termination. All provisions of this Agreement which by their nature are intended to survive the termination of this Agreement (including the provisions of Article 1.0 and Articles 4.0 through 11.0) shall survive such termination.
ARTICLE 10.0. U.S. GOVERNMENT RESTRICTED RIGHTS.
The Software Product is "Restricted Computer Software." Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013 (OCT 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14, as applicable, and as amended. The Contractor/Manufacturer is RadView Software LTD., 14 Hamelacha Street, Park Afek, Rosh Haayin 48091, Israel. RADVIEW can be contacted at email@example.com, Israeli number: +972-3-9157060 or at its US toll free number: 1-888-RADVIEW.
ARTICLE 11.0. GENERAL PROVISIONS.
11.1. This Agreement, including the Appendices hereto, constitutes the entire agreement between RADVIEW and CUSTOMER with respect to the subject matter hereof and supersedes any and all prior agreements, statements, purchase orders, covenants, understandings, representations, warranties, and undertakings, whether written or oral, between them regarding such matters.
11.2. This Agreement may not be amended, in whole or in part, except by an instrument in writing signed by both RADVIEW and CUSTOMER.
11.3. This Agreement shall be binding upon and for the benefit of RADVIEW and CUSTOMER and their respective legal representatives, successors, and assigns; provided, that CUSTOMER shall not be entitled to assign, sublicense, delegate, or otherwise transfer any of CUSTOMER’s rights or obligations under this Agreement without RADVIEW’s prior written consent (which consent shall not be unreasonably withheld or delayed), except in the event of an assignment to a third party who purchases all or substantially all of CUSTOMER’s assets and who agrees to be bound by the provisions of this Agreement.
11.4. This Agreement shall be governed by and construed in accordance with the laws of the State of Israel. Each party hereby expressly consents to the exclusive jurisdiction of the competent courts in Tel-Aviv-Jaffa for any claim or action arising from this Agreement, including its enforcement, breach or interpretation..
11.5. In the event of any litigation between the parties concerning performance or non-performance of either party’s obligations under this Agreement, the prevailing party shall be entitled to be reimbursed by the other party for the costs and expenses (including, but not limited to, reasonable attorneys’ fees) incurred or paid by the prevailing party in such litigation
11.6. Any demand, notice, consent, or other communication required by this Agreement to be given in writing shall be given either (a) by being hand-delivered to the receiving party, or (b) by being deposited in the mail (registered or certified) or delivered to a recognized private express common carrier, postage or freight prepaid, addressed to the receiving party. Either party may change its address by giving written notice to the other party of the changed address.
11.7. No waiver by either party of any breach or default by the other party of any of its obligations under this Agreement shall be deemed to be a waiver of any other breach or default of the same or any other nature.