Hedgewiz Terms of Service

PLEASE READ CAREFULLY:

THESE TERMS OF SERVICE (THE “AGREEMENT”) CONSTITUTE A BINDING AGREEMENT BETWEEN HEDGEWIZ PURE RISK MANAGEMENT SOLUTIONS LTD., A COMPANY INCORPORATED UNDER THE LAWS OF ISRAEL WITH COMPANY NO. 5152545-55 (“HEDGEWIZ”) AND YOU OR THE COMPANY, PARTNERSHIP, ASSOCIATION, GOVERNMENT AGENCY, OR OTHER ORGANIZATION IDENTIFIED IN THE PROPOSAL (THE “CUSTOMER”). EACH OF HEDGEWIZ AND THE CUSTOMER IS A “PARTY” AND COLLECTIVELY THE “PARTIES”.

BY EXECUTING THE PROPOSAL SUBMITTED TO YOU BY HEDGEWIZ (THE “PROPOSAL”), YOU AGREE TO BE BOUND BY THIS AGREEMENT. PLEASE REVIEW THIS AGREEMENT THOROUGHLY BEFORE ACCEPTING.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “CUSTOMER”, “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

 

1.          Definitions

The following capitalized terms shall have the following meanings whenever used in this Agreement.

Customer Data” means any data in electronic form that Customer or Users make available through the Service.

Payment Service Provider” means a third-party provider that receives payment instructions via the Platform.

Platform” means Hedgewiz’ proprietary online platform, providing payment optimization services, collection, conversion between currencies, cash management, currency risk management and real-time monitoring.

Professional Services” means certain customization services, technical services and support services provided by Hedgewiz under this Agreement, as described more fully in a Proposal.

Proposal” means an ordering document executed by the parties that specifies the scope of the Service and certain Professional Services purchased by Customer under this Agreement.  Each Proposal shall be subject solely to and incorporate by reference the terms of this Agreement.

Subscription Term” means the period during which Customer is authorized to use the Service as identified in the Proposal, unless earlier terminated as set forth in Section 12.2.

2.          Use of the Service

2.1       Service Description. This Agreement governs the use of the Platform and associated services which enable Customer to obtain various financial services and offerings from Payment Service Providers with whom Customer is connected through the Platform (the “Service“), as further detailed in the applicable Proposal, which is incorporated by reference to this Agreement. The Parties may enter into multiple Proposals under this Agreement. In the event of a conflict between any provision of this Agreement and a Proposal, the provision of the Proposal will prevail.

2.2       Right of Use and License. Subject to the terms of this Agreement, Hedgewiz grants Customer, during the Subscription Term, a world-wide, non-exclusive, non-assignable (except as specifically permitted in this Agreement), revocable and non-sublicensable right to access and use the Service for internal business purposes, and, where applicable, a license to use the Service’s applicable application programming interfaces (“APIs”), which for the purposes of this Agreement are an integral part of the Service, for the purpose of facilitating Customer’s use of the Service. Customer may not resell, rent, lease, transfer, lend, timeshare, assign, display or permit others to use the Service and the API except as explicitly provided under this Agreement. Customer may allow Customer’s employees, consultants, contractors or agents (“Users“) to access and use the Service, solely on Customer’s behalf, provided that: (i) Customer’s Users are aware and compliant with the terms and conditions for using the Service under this Agreement; and (ii) Customer’s Users are bound by a non-disclosure agreement that is no less restrictive than the confidentiality obligations under the terms of this Agreement.

2.3       Prohibited Uses. Customer may not, and shall not permit its Users or any third party to: (i) modify, copy, publicly display, reproduce, republish or create derivative works based on the Service, the API or the underlying software; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign (except as permitted in Section 13.2), or distribute the Service, or use the Service for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Service; (iii) decompile, disassemble, or otherwise reverse engineer the Service or the underlying software or otherwise attempt to obtain the source code of the Service; (iv) use the Service in a manner that interferes with the use of the Service by Hedgewiz or its other customers; (v) alter or remove any proprietary trademark or copyright markings incorporated in, marked on, or affixed to the Service; (vi) access the Service or the Platform in order to build a competitive product or service, or to copy any ideas, features, functions or graphics of the Service or the Platform; or (vii) access or use the Service: (a) to send or store infringing, obscene, threatening, or otherwise unlawful material, including material violative of third-party privacy rights; (b) in violation of applicable laws; or (c) to send, transmit or store material containing software viruses, worms, Trojan horses, time bombs, web bugs, spyware,or other harmful computer code, files, or scripts. In the event that Hedgewiz suspects any breach of the restrictions set forth in this Section 2.4, including without limitation by Users, Hedgewiz reserves the right to suspend access to the Service without advance notice, in addition to any other remedies Hedgewiz may have at law or equity.

2.4       Modifications to the Service. Hedgewiz may, either partially or in its entirety modify, adapt or change the Service, or any of its features, user interface and design, the extent and availability of the content of the Service and any other aspect related thereto, through updates and upgrades, provided that Hedgewiz will not materially decrease the overall functionality of the Service. Failures incidental to Service modifications may occur and Hedgewiz will not be held responsible for modification related failures, provided that Hedgewiz will make commercially reasonable efforts to reinstate the full operability of the Service.

3.          Access

Accounts and Users. Hedgewiz shall provide Customer with login credentials to access the Service. The Customer will receive login credentials for such number of Users as specified in the applicable Proposal. Each User must have their own login, and Customer and its Users shall not share passwords or other login credentials with more than one person, or with any third party. If Customer requires additional User accounts the Parties shall execute an additional Proposal for such additional Users as promptly as practicable. Customer shall take reasonable steps to prevent unauthorized access to the Service, including without limitation by protecting its passwords and other log-in information. Customer shall notify Hedgewiz if (1) any of its User is no longer authorized to use the Service so that Hedgewiz can cancel their credentials, and (2) any User believes their credentials may have been compromised. Customer assumes full responsibility for the use of its login credentials and all acts and omissions of Customer’s Users related to their use of the Service. Customer shall notify Hedgewiz promptly of any known or suspected unauthorized use of the Service. 

4.          Subscription Fees and Payment

4.1       Customer will pay to Hedgewiz the subscription fees specified in all Proposals executed by the Parties. Except as otherwise specified herein, or in a Proposal, payment obligations are non-cancelable and subscription fees paid are non-refundable. Fees for the Service are based on the Service purchased and not actual usage. Customer agrees that its purchase of the Service or Professional Services is not contingent upon the delivery of any future functionality or features.

4.2       Unless otherwise stated in a Proposal, all invoiced fees and charges under this Agreement will be invoiced in advance and are due net thirty (30) days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Hedgewiz and notifying Hedgewiz of any changes to such information.

4.3       Unless otherwise stated in a Proposal, all Service Fees are exclusive of any foreign or domestic sales taxes, withholding taxes, use taxes and any other taxes and charges of any kind imposed by any federal, state, local or foreign governmental entity, and Customer is solely responsible for the payment thereof. Unpaid due amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, and all payment collection expenses, including without limitation reasonable attorney’s fees.

4.4       If Customer’s account is thirty (30) days or more overdue (except for charges then under reasonable and good faith dispute), then Hedgewiz may, without limiting its other rights and remedies, following five (5) days written notice and an opportunity to cure, suspend Customer’s access to the Hedgewiz Service until such amounts are paid in full.  Written notice may be provided via email.

5.          Proprietary Rights

5.1       Reservation of Rights. Except for the limited rights expressly granted to Customer hereunder, Hedgewiz reserves all rights, title, and interest in and to the Service, the Platform, the underlying software and any and all improvements, modifications and updates thereto, including without limitation all related intellectual property rights inherent therein. Where Customer purchases Professional Services hereunder, Hedgewiz grants to Customer a non-sublicensable, non-exclusive license to use any materials provided by Hedgewiz as a result of the Professional Services (the “Hedgewiz Materials”) solely in conjunction with Customer’s authorized use of the Service and in accordance with this Agreement. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement. 

5.2       Feedback. Customer will, and hereby does, grant to Hedgewiz a non-exclusive, royalty-free, fully paid up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its Users relating to the features, functionality or operation of the Service, the Professional Services or the Platform (“Feedback”). Feedback does not include Customer Data.  Notwithstanding anything to the contrary, Feedback shall not create any confidentiality obligation for Hedgewiz.

6.          Customer Data and Privacy

6.1    Customer Data. Except for the limited rights expressly granted to Hedgewiz hereunder, Customer retains all rights, title and interest in and to all Customer Data, including without limitation all related intellectual property rights inherent therein. Customer is solely responsible for the accuracy, quality, legality, reliability, and appropriateness of all Customer Data. Customer hereby warrants and represents that it will provide all appropriate notices, obtain all appropriate informed consents, comply at all times with all applicable privacy and data protection laws and regulations (including Regulation (EU) 2016/679  (“GDPR”)) and industry guidelines to which Customer is subject, for allowing Hedgewiz to use, process, and transfer any personal data contained in the Customer Data in accordance with this Agreement on Customer’s behalf (including, without limitation, the provision of such data to Hedgewiz and the transfer of such data by Hedgewiz to Payment Service Providers, including transfers outside of the European Economic Area). Customer grants Hedgewiz a nonexclusive, worldwide, royalty-free right to reproduce, display, adapt, modify, transmit, distribute and otherwise use the Customer Data (a) to maintain, provide, and improve the Service and the Professional Services under this Agreement; (b) to prevent or address technical or security issues and resolve support requests; and (c) as otherwise required by applicable law. No rights to the Customer Data are granted to Hedgewiz hereunder other than as expressly set forth in this Agreement.

6.2       Anonymized Platform Data.  Hedgewiz may collect, use and store data concerning the usage and operation of the Platform, the Service and the Professional Services to improve its service offerings provided that such data is anonymized and does not include information that identifies or provides a reasonable basis to identify a company or an individual.  For clarity, Platform data shall not incorporate any Customer Data.

6.3       Customer hereby acknowledges and agrees that Hedgewiz is acting as a data processor and will use any personal data contained in Customer Data only in accordance with Customer’s instructions and to perform the Service and the Professional Services and deliver any associated services under this Agreement. Hedgewiz will implement appropriate technical and organizational measures to protect personal data contained in Customer Data against unauthorized or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. Hedgewiz collects, stores and uses personal details of Customer’s Users and contact persons in accordance with Hedgewiz’s privacy notice which is located at https://hedgewiz.co.uk/privacy-policy/.

To the extent that the Customer Data includes personal data that is subject to the GDPR, the Parties shall execute Hedgewiz’ Data Processing Agreement (“DPA”), available at https://hedgewiz.co.uk/dpa/.

6.4       Payment Service Providers. The Service is designed to connect the Customer with Payment Service Providers. For this purpose, Customer and its Users grant Hedgewiz permission to allow the Payment Service Provider to access to the Customer Data solely as required for the Payment Service Provider to perform the requested payment operations. The Payment Service Provider will be acting as a data processor (as such term is defined under the GDPR) on the Customer’s behalf and in accordance with the respective agreement in place between the Customer and the Payment Service Provider. Hedgewiz is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by any Payment Service Provider and expressly disclaims all liability for any acts or omissions of the Payment Service Provider.

7.          Confidentiality

7.1       Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of Hedgewiz includes the Service and the Platform, and the terms and conditions of this Agreement and all Proposals (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without knowledge of any breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party

7.2       Protection of Confidential Information. As between the Parties, each Party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither Party will disclose the terms of this Agreement or any Proposal to any third party other than its affiliates, legal counsel and accountants without the other Party’s prior written consent, provided that a Party that makes any such disclosure to its affiliate, legal counsel or accountants will remain responsible for such affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section.

7.3       Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

8.          Warranties, Disclaimers

8.1       Mutual Warranties. Each Party represents and warrants that (i) it has the power and authority to enter into and fully perform this Agreement; and (ii) the performance by such party of its obligations and duties hereunder will not violate any agreement to which such Party is bound. 

8.2       Hedgewiz Warranties.  Hedgewiz warrants that it will perform the Professional Services in a good and workmanlike manner. In the event of a breach of this warranty, Hedgewiz will promptly re-perform the applicable part of the Professional Services and if Hedgewiz is unable to provide the Professional Services as warranted within a commercially reasonable time following receipt of written notice of breach, Customer shall be entitled to terminate the applicable part of the Proposal and recover the fees paid for the nonconforming Professional Services.

8.3       Customer Warranties. Customer represents and warrants that Customer is not a competitor of Hedgewiz and will not use the Service to engage in or permit others to engage in competition with Hedgewiz.

8.4       Warranty Disclaimer. Hedgewiz does not warrant that the Service will operate in an uninterrupted or error-free manner. Except for any warranty specifically granted herein, the Service and the Professional Services are provided “as-is” and “as-available”. To the maximum extent permitted by law, Hedgewiz, its affiliates and its third-party service providers expressly disclaim any and all warranties, conditions, representations and guarantees with respect to the Service and the Professional Services, whether express or implied, arising by law, custom, prior oral or written statements, or otherwise, including, without limitation, any warranty of merchantability, accuracy, completeness correctness, fitness for a particular purpose or non-infringement. Without limiting the generality of the foregoing, Hedgewiz does not represent or warrant that the Service (a) will perform without interruption or error, or (b) is secure from hacking or other unauthorized intrusion.  No representation or other affirmation of fact, including, without limitation, statements regarding capacity or suitability for use or performance of Service, whether made by Hedgewiz’s personnel or otherwise, which is not contained in this Agreement, will be deemed to be a warranty by Hedgewiz for any purpose, or give rise to any liability of Hedgewiz.

8.5       No Liability for Payment Service Providers. Hedgewiz does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party, including a Payment Service Provider, through the Service or any hyperlinked website or service, and Hedgewiz will not be a party to or in any way monitor any transaction between Customer and Payment Service Provider. Hedgewiz has no liability whatsoever for any failure, errors, faulty results, damage, downtime, or system outage, that are caused by the Customer, a User or a Payment Service Provider, including, without limitation, as a result of incorrect hardware or software settings, or incorrect data or commands used or entered while using the Service, or caused by any act or omission of the Customer, a User or a Payment Service Provider.

9.          Indemnification

9.1       Indemnification by Hedgewiz. Subject to Section 9.3, Hedgewiz shall defend Customer from and against any and all third-party claims, suits, actions, or proceedings (“Third Party Claims”) made or brought against Customer by a third party alleging that the Service infringes a patent, copyright, trademark or other intellectual property right of such third party or misappropriates such third party’s trade secrets.  Further, Hedgewiz shall indemnify and hold Customer harmless against all damages, costs and reasonable attorneys’ fees (“Losses”) awarded against Customer by a court of competent jurisdiction, or agreed to in a written settlement agreement signed by Hedgewiz, in connection with such Third Party Claims.  Hedgewiz shall have no indemnification obligation for infringement claims arising from (i) the combination of the Service with any services, hardware, data or business processes not provided by Hedgewiz, (ii) modifications to the Service by Customer or its agents, or (iii) for use of the Service by Customer other than in accordance with this Agreement.

In addition to Hedgewiz’s indemnity obligations, if a Third Party Claim is made or appears possible, Hedgewiz may, at Hedgewiz’s sole discretion and expense, (a) modify or replace the Service or component or part thereof, to make it non-infringing, (b) obtain the right for Customer to continue use of the Service, or (c) if determines neither of the foregoing alternatives are commercially reasonable, Hedgewiz may terminate this Agreement and refund to Customer all prepaid, unused fees for the Service applicable to the remaining portion of the Subscription Term following the effective date of termination. This Section 9.1 states Hedgewiz’ entire liability and Customer’s exclusive remedy for any claim of intellectual property infringement.

9.2       Indemnification by Customer.  Subject to Section 9.3, Customer shall defend Hedgewiz, at Customer’s expense, from and against any Third Party Claims made or brought against Hedgewiz alleging that the Customer Data, or Customer’s use of the Service in violation of this Agreement, infringes or otherwise violates a third party’s property, privacy or other rights, or violates any applicable law.  Further, Customer shall indemnify and hold Hedgewiz harmless against all Losses awarded against Hedgewiz by a court of competent jurisdiction, or agreed to in a written settlement agreement signed by Customer, in connection with such Third Party Claims.

9.3       Procedure. The foregoing obligations of the indemnifying party are conditioned upon the Party seeking indemnification (a) promptly providing notice to the indemnifying party concerning the existence of an indemnifiable claim, and (b) promptly providing all information and assistance reasonably requested by the indemnifying party in defending the claim, and (c) giving the indemnifying party sole control and authority of the defense and settlement of any indemnifiable claim (provided, however, that any settlement requiring the party seeking indemnification to admit liability or make any financial payment shall require such party’s prior written consent, not to be unreasonably withheld or delayed). 

10.       Limitation of Liability

10.1     To the maximum extent permitted by applicable law, Hedgewiz, including Hedgewiz’s employees, directors, shareholders, advisors, third party data providers or anyone acting on Hedgewiz’s behalf, will not be liable for any indirect, incidental, consequential, special or punitive damages, or any loss of profit, or expenses of any kind, arising from, or in connection with this Agreement and the Service, whether such liability is asserted on the basis of contract, tort or otherwise, and even if such damages are foreseeable and whether or not Hedgewiz has been advised of the possibility thereof. In no event shall Hedgewiz’ liability exceed the total amount paid to Hedgewiz by Customer hereunder during the twelve (12) months preceding the date the claim is brought.  

11.       Publicity

Either Party may reference the other Party’s name and logo in lists of customers or vendors, including on each other’s respective websites. All other uses of each other’s name and any publicity shall require the prior written approval and consent of the other Party, which shall not be unreasonably withheld.

12.       Term and Termination

12.1     This Agreement commences as of the Effective Date and will continue to be in effect for the term of the attached Proposal, or if multiple Proposals are in effect until the last termination date of the applicable Proposal.  Except as otherwise specified in the applicable Proposal, Subscription Terms shall automatically renew for successive one (1) month periods, unless either Party gives notice to the other Party of non-renewal at least thirty (30) days prior to the expiration of the then-current Subscription Term.  

12.2     Each Party may terminate the Agreement and the Proposals then in effect, if the other Party (i) breaches the Agreement and does not cure such breach within thirty (30) days after receiving a written notice of such breach; or (ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

12.3     Upon expiration or termination of this Agreement for any reason, the rights and licenses granted to Customer shall terminate immediately. Upon any termination by Customer pursuant to Section 11.2, Hedgewiz shall refund to Customer any prepaid, unused fees applicable to the remaining portion of the relevant Subscription Term following the effective date of termination. Upon any termination by Hedgewiz pursuant to Section 11.2, Customer shall pay any unpaid fees covering the remainder of the Subscription Term. In no event will any termination relieve Customer of its obligation to pay any fees accrued or payable to Hedgewiz during the period prior to the effective date of termination. The following provisions will survive termination or expiration of this Agreement: Sections 4 (Subscription Fees and Payments), 5 (Proprietary Rights), 7 (Confidentiality), 8 (Warranties; Disclaimers), 9 (Indemnification), 10 (Limitation of Liability), 12.3 (Effect of Termination) and 13 (General Provisions).

13.       General Provisions

13.1     Governing Law and Jurisdiction. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of Israel, without giving effect to its conflicts of law rules. The parties each consent to the personal and exclusive jurisdiction of the courts of Tel Aviv-Yafo, Israel.  In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees.

13.2     Assignment of Rights. Neither Party may assign this Agreement nor any of its rights or obligations hereunder without the prior written consent of the other Party (not to be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Proposals), without the consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.  Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties’ respective successors and assigns.

13.3     Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.

13.4     No Third-Party Beneficiaries. This Agreement is not intended to and will not be construed to give any third party any interest or rights, including, without limitation, third party beneficiary rights, with respect to or in connection with any provision under this Agreement.

13.5     No Waiver. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right or any other right. Other than as expressly stated herein, the remedies provided herein are in addition to, and exclusive of, any other remedies of a party at law or in equity.

13.6     Force Majeure. Hedgewiz’ failure to provide the Service as a result of conditions beyond Hedgewiz’ reasonable control, including without limitation wars, terror and state-sponsored attacks, strikes, fires, floods, governmental restrictions, power failures, or damage or destruction of any network facilities or servers, will not constitute a breach of this Agreement.

13.7     Entire Agreement and Severability. This Agreement constitutes the entire and complete agreement between Customer and Hedgewiz concerning any use of, or in connection with the Service. No terms issued by Customer or appearing on any other document provided by Customer including without limitation any invoice, order, purchase order or acknowledgment form will have any force or effect or otherwise be binding on the Parties. If any provision of this Agreement is held invalid or unenforceable, that provision must be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the Parties and the remaining provisions will remain in full force and effect. This Agreement may be amended only by a written instrument executed by duly authorized representatives of the Parties.

 

 

Updated as of January 2023