General Terms and Conditions of Services
1. Definitions
a. In these General terms and conditions ("Terms and Conditions"):
i. The "Background IP" shall mean intellectual property rights including patents, copyrights, designs and trade secrets, owned by Penguin (or licensed to it) as of the date of this Agreement or which may be developed by Penguin during the term hereof, and the subject matter of which lies beyond the scope of the Deliverables and without reliance on or use of Client's Confidential Information (other than any information retained by a person’s memory that had access to the Confidential Information, including ideas, concepts, know-how, or techniques contained therein).
ii. The "Client" shall mean the person, firm, company or other organization who or which has ordered Services from Penguin;
iii. The "Deliverables" shall mean the deliverables prepared for and furnished to the Client by Penguin in connection with the Services;
iv. "Penguin" shall mean Penguin Strategies Ltd., a private company incorporated in the state of Israel under the company number 515005254, which registered address is at 14 Ha’haroshet St. Raanana, Israel;
v. The "Services" shall mean all advice given and services performed by Penguin to the Client under an SOW;
vi. The "SOW" shall mean the statement of work for the provision of Services entered between Penguin and the Client and which refers to these Terms and Conditions;
2. SERVICES AND DELIVERABLES.
a. The scope of the Services and Deliverables shall be as determined in the SOW.
b. In order to be able to complete the Services within the agreed timeframe and budget and to fulfill its responsibilities on a timely basis, Penguin will rely on the Client’s timely cooperation, including the Client’s making available relevant data and performing any tasks or responsibilities assigned to the Client.
c. The Services shall not be deemed investment, legal, tax, accounting or other regulated advice. Penguin does not supplant the Client’s management or other decision-making bodies and does not guarantee results. The Client remains solely responsible for its decisions, actions, use of the Deliverables and compliance with applicable laws, rules and regulations.
d. Other than the express warranties stated in these Terms and Conditions, Penguin gives no other guarantees or warranties with respect to the Deliverables.
3. CONSIDERATION.
a. The Client shall pay Penguin the consideration for the Services which is set forth in the SOW (the "Consideration").
b. Unless otherwise agreed in writing, payment in full of the Consideration shall be made to Penguin in the currency invoiced, no later than thirty (30) days from the date of invoice. In the event of late payment, Penguin reserves the right:
i. to suspend and/or cancel any of its outstanding obligations; and
ii. to charge late payment interest on the unpaid amount accruing monthly on such amount as of the date it should have been paid until the date it was actually paid, at the rate charged by Bank Leumi Le'Israel Ltd. for overdrawn accounts at such time.
c. In case it is determined under an SOW that a specific amount of hours of Services shall be provided to the Client (“Hours Bundle”), then the following additional terms shall apply:
i. The Client shall pay Penguin the full amount of Consideration for the entire Hours Bundle, even if (a) the Client has not utilized the entire amount of hours available to it under such Hours Bundle; and/or (b) the SOW was terminated by the Client prior to its agreed term.
ii. In the event of termination by the Client of the SOW prior to its agreed term, the Client shall be entitled to receive from Penguin any amount of hours of Services from the Hours Bundle which were not yet utilized prior to the date of termination. Penguin shall only be obligated to provide such Services until the expiration of the three months period following the date of the SOW’s termination and these Terms and Conditions shall continue to apply to such provision of Services.
4. CONFIDENTIALITY.
a. Each of Penguin and the Client will keep confidential any confidential information furnished by the other party in connection with the Services (“Confidential Information”). The receiving party will disclose Confidential Information of the other party only to its employees, agents and contractors who have a need to know and are bound to keep it confidential and will use such Confidential Information only for purposes of performing its obligations under the SOW. Confidential Information shall not include information that is or becomes publicly available, already known to receiving party, independently acquired or developed by the receiving party or legally required to be disclosed. The receiving party will reasonably cooperate with the disclosing party, at its expense, in responding to any legally required disclosure.
b. At the disclosing party's election and notification to the receiving party, the receiving party shall promptly return or destroy any Confidential Information of the other party in its possession or control when the same is no longer necessary for the engagement under the SOW, provided that it may retain such Confidential Information only as required by applicable law, regulation or for archival purposes. Any Confidential Information so retained, shall at all times remain subject to the terms and conditions of these Terms and Conditions, including with respect to confidentiality and non-disclosure.
c. The Client hereby confirms under its own responsibility that no personal data (i.e. information that relates to an identified or identifiable individual) will be provided to Penguin in the course of the Services or processed by Penguin on behalf of the Client as part of the Services provision.
5. INTELLECTUAL PROPERTY.
a. Upon payment in full of the Consideration, the Client will own all intellectual property rights embodied in the Deliverables, save that Penguin retains ownership in all Background IP and in any concepts, know-how, ideas, techniques, methods, and models developed or enhanced by Penguin during the production of the Deliverables.
b. Penguin hereby grants the Client a non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free license, without a right of sublicense, to use and copy the Background IP solely as necessary to use the Deliverables in accordance with these Terms.
c. Where the Client supplies designs, content and other material to Penguin to enable it to produce the Deliverables, the Client warrants that such Deliverables' production will not infringe the intellectual property rights of any third party.
6. LIMITATION OF LIABILITY.
a. Subject to any limitations or exclusions imposed by mandatory applicable law, (i) Penguin’s total monetary obligation and liability, under any claim for any causes of action pursuant to the SOW, shall not exceed the sum of payments made by Client to Penguin during the twelve (12) months period preceding the alleged damages; and (ii) neither party will be liable for any indirect, consequential, incidental, punitive or special damage.
b.Penguin shall not be responsible or liable for monitoring any traffic to the Clients’ ads, websites, or content. Without derogating from the aforesaid, Penguin shall not monitor for or report on any fraudulent, invalid or artificial traffic and shall have no responsibility or liability in connection with any third-party actions, including, without limitation, any third party’s manipulative, malicious or fraudulent generation or inflation of impressions, leads or clicks (i.e. click fraud) or other improper actions that may affect the cost of running ads or which relate in any other way to the Client’s ads, websites or content.
c. Neither party shall be liable for its failure to perform any of its obligations hereunder during any period in which such performance is delayed or made impossible by force majeure, included but not limited to fire, flood, war, pandemic, epidemic, the intervention of any governmental authority, or any causes or contingencies beyond a party's reasonable control, provided that the party who cannot perform as a result of such force majeure notifies the other party of the delay and the reasons thereof.
7. MISCELLANEOUS.
a. These Terms and Conditions shall be incorporated into the SOW and shall apply to the exclusion of any conditions of the Client.
b. These Terms and Conditions, together with the SOW, constitute the entire agreement between the parties, and supersede all prior or contemporaneous oral or written understandings, negotiations, warranties, or agreements of any kind between the Client and Penguin on the subject matter of the SOW. In the case of a conflict between these Terms and Conditions and the SOW, the terms of the SOW shall take precedence and apply.
c. None of the rights or obligations of the Client under the SOW may be assigned or transferred in whole or in part without the prior written consent of Penguin.
d. Penguin may engage subcontractors to perform any part of its obligations under the SOW, without requiring the Client’s consent, provided that Penguin will remain liable for the performance of its subcontractors.
e. If any provision of these Terms and Conditions (or portion thereof) is held to be invalid, illegal or unenforceable, such provision (or portion thereof) shall be deemed severed from this Agreement, and the balance of this Agreement shall remain in full force and effect.
f. No waiver, alteration, addition or modification of these Terms and Conditions shall be valid unless made in writing and signed by both the Client and Penguin.
g. The SOW and these General Conditions shall be governed by and construed in accordance with the laws of the State of Israel without regard to conflicts of law principles.
h. Any disputes arising out of or in connection with the SOW shall be brought exclusively before the competent courts of Tel-Aviv Israel. Notwithstanding the foregoing sentence, Penguin, at its discretion, may opt to bring any such dispute before or file any claim at the competent courts of the country of the Client's residence under the laws applicable to that country.
i. All notices, requests, demands, and other communications to be given under the SOW will be in writing, will be delivered by hand or by email and will be deemed given on the date of delivery, subject to receipt of electronic confirmation that the notice was received by the other party (in case of email transmissions).
8. Non-Solicit/Non-Hire - While this Agreement is in effect and for twelve (12) months after the expiration or termination of the last agreement executed hereunder, the Client will not solicit for employment or hire—directly or through any third party—any person employed by or under contract with Penguin Strategies
9. Non-Compete - While this Agreement is in effect and for twelve (12) months after the expiration or termination of the last agreement executed hereunder, Client will not, directly or indirectly provide or offer to provide services to any Penguin Strategies customer which are related or competitive to the Services provided by Penguin Strategies under this Agreement or any Service Schedule.
