Terms and Conditions

WITNESSETH

WHEREAS, Weissbeerger is engaged in the research, development, and manufacturing of self-pouring of alcohol systems and of alcohol consuming monitoring systems; and

WHEREAS, Customer is engaged, inter alia, in selling and serving of alcohol beverages to end-customers; and

WHEREAS, Customer wishes to monitor the alcohol consuming level of the end-customers and for the foregoing purpose, Customer wishes to receive from Weissbeerger the Services (as defined hereunder); and

WHEREAS, Weissbeerger agrees to provide the Services to the Customer under the terms and subject to the conditions set forth herein;

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereby agree as follows:

Provision of Services

  1. Systems. Following the payment by the Customer of the Installation Fees as set forth in Section 3.1.1 hereunder, Weissbeerger shall (i) provide the Customers with the applicable software and hardware required for the installation and use of the systems set forth in Annex A (the “Equipment” and the “Systems”, respectively)and (ii) during the Term (as defined below) and subject to the provisions set forth herein, provide the Customer with the Reports (as defined hereunder) (together, the “Services”).
  2. Information Flow. Following the complete installation [by the Customer] of the System, which installation shall be completed only with Weissbeerger’s confirmation to that effect, the System shall become operative and shall commence transmitting consumption data to a CLOUD owned, used and managed by Weissbeerger.
  3. Reports. Weissbeerger shall provide the Customer with monthly reports which shall include the consumption data in accordance with the specifications set forth in Annex B (“Reports”).
  4. Equipment. Without derogating from any provision herein, the Parties agree that Weissbeerger shall provide the Customer with the Equipment subject to the following conditions:
    1. Liquidated Damages. Customer shall exercise best efforts to ensure that the Equipment is to be strictly preserved and highly maintained, and undertakes to immediately notify Weissbeerger upon any malfunction, breakdown, damage, loss, theft or other occurrences of the same nature with respect to the Equipment (in this Section‎ 2.1.1, “Damage”). Without derogating from the aforementioned or from any remedy to which Weissbeerger is entitled to under this Agreement or applicable law, given the Equipment’s high value, in the event of Damage, including which resulted from inappropriate use or keeping, regardless of whether such Damage occurred due to malice intention or negligence, other than reasonable wear and tear, the Customer undertakes to pay Weissbeerger liquidated damages in the amount of [350$ which both parties hereby agree as fair and reasonable, immediately upon Weissbeerger’s first request.
    2. Equipment Ownership. Equipment provided to the Customer by Weissbeerger in connection with the Systems and/or pursuant to this Agreement, is and shall remain the sole and exclusive property of Weissbeerger.
  5. Report’s Data Ownership. All data accumulated by Weissbeerger while providing the Services, regardless of whether such data has been provided to the Customer, are and shall remain the sole and exclusive property of Weissbeerger (“Data”). Without derogating from the foregoing, Customer acknowledges that Weissbeerger shall have any right to use, or otherwise utilize the Data, provided however, that Weissbeerger shall remove any Customer’s identification information from the Data prior to any such use and/or utilization not for the purposes of this Agreement. Customer hereby irrevocably and unconditionally and forever waives any right, claim or demand he may have against Weissbeerger with respect to the foregoing use of the Data.
  6. Consideration. In consideration for the provision of the Services, Weissbeerger shall be entitled to receive from the Customer the following payments:
    1. Installation Fees for the provision by Weissbeerger of the Systems and for the installation of the Systems/ the installation completion approval in the amount of $100 (“Installation Fees”).
    2. Service Fees for the provision by Weissberger of the Reports in the amount calculated in the website according to the client request(“Service Fees”).
  7. Payment Terms.
    1. Upon the execution of this Agreement Weissbeerger shall issue a valid tax invoice to the Customer in the amount of the Installation Fees. Payment by the Customer of the Installation Fees shall be made by wire transfer to Weissbeerger’s PayPal account which details are set forth in Annex C attached hereto (“PayPal Account”) immediately following Customer’s receipt of such invoice and in any event not later than [7] days thereafter.
    2. At the beginning of each calendar month, Weissbeerger shall issue a valid tax invoice to the Customer in the amount of the Service fees (“Monthly Invoice”). Payment by Customer shall be made by wire transfer to the PayPal Account following Customer’s receipt of the Monthly Invoice by the Customer and in any event not later than [7] days from the date of the Monthly Invoice was sent to the Customer.
  8. Each Party represents and warrants that:
    1. it has the full right, power and authority to enter into and fully perform its obligations pursuant to this Agreement in accordance with its terms;
    2. the execution, delivery and performance of this Agreement will not knowingly breach rights granted by such Party to any third party or breach the provisions of any agreement to which it is a party or breach any applicable law or regulation.
  9. Notwithstanding anything to the contrary herein, Weissbeerger shall own all right, title and interest (including all intellectual property rights) to any information disclosed derived from the System and to any product, design, work-product, consultation or graphics created by Weissbeerger.
  10. It is hereby being expressly clarified that all intellectual property rights relating to the Systems, including without limitations, all patents, trademarks, computer programs, copyrights, databases, know-how, logos, concepts, techniques, processes, methods, commercial secrets and any other intellectual property rights, including any new developments or derivative works of such intellectual property, whether registered or not, are and shall remain the sole and exclusive property of Weissbeerger. The Customer or any person acting on its behalf shall not contest the above, shall not dispute or assist any third party to dispute the validity thereof, shall not object or otherwise challenge Weissbeerger’s intellectual property rights and shall not take any step which may adversely affect Weissbeerger’s rights and title in the Systems.
  11. This Agreement shall be in effect from the Effective Date and until termination thereof in accordance with the terms set forth in this Section 6 (the “Term”).
  12. This Agreement may be terminated with immediate effect by either Party if the other Party: (a) commits a material breach of this Agreement and does not rectify same within fourteen (14) days from the date of receipt of a written notice from the other Party to do so; (b) voluntarily petitions for relief under or otherwise seeks the benefit of any bankruptcy, reorganization, arrangement or insolvency law; (c) makes an assignment for the benefit of its creditors; (d) had entered against it an order for relief under applicable bankruptcy law; (e) is declared insolvent or bankrupt by a court having jurisdiction; (f) allows a receiver or trustee of its general business to be appointed; or (g) ceased its business operations for any reason whatsoever.
  13. Notwithstanding the foregoing, Weissbeerger shall have the right to terminate this Agreement, at any time and for any reason whatsoever, upon seven (7) days prior written notice to that effect.
  14. It is hereby agreed that upon termination of this Agreement, the Customer shall promptly deliver to Weissbeerger, at Weissbeerger’s instructions, all Equipment within seven (7) days from the date of such termination (for any reason whatsoever), and assure that the Equipment is returned in the same shape, manner and in same working level as it was during the installation, [except for normal wear and tear].
  15. Notwithstanding the foregoing, Sections 5 (Intellectual Property), 7 (Limitation of Liability), 8 (Confidentiality) and 10 (Miscellaneous) shall survive termination of the Agreement.
  16. The Parties shall indemnify and hold the other Party harmless from any and all liabilities, damages, losses and expenses, arising out of such Party’s failure to comply with its obligations under this Agreement.
  17. Notwithstanding the above, under no circumstances shall Weissbeerger, its officers or employees be liable to the Customer or any other third party under any cause of action (whether in contract, tort or otherwise) for any indirect, incidental, special, consequential, punitive, or exemplary damages under any legal theory whatsoever arising out of or relating to this Agreement, including but not limited to, damages for loss of profits, business expenses, damage caused to Customer’s business equipment and/or inventory, or other damages, even if Weissbeerger has been advised of the possibility of such damages and regardless of whether or not the damages were reasonably foreseeable, and the Customer shall hold Weissbeerger harmless in all such respects.
  18. Notwithstanding anything to the contrary in this Agreement, Weissbeerger’s total aggregate liability in respect of any and all claims arising out of or in connection with this Agreement (whether in contract, tort or otherwise) shall in no circumstances exceed fifty percent of the total revenues received by Weissbeerger during the immediately preceding twelve (12) months period pursuant to this agreement.
  19. Customer acknowledge that during the Term of this Agreement or otherwise, there may be disclosed to him certain Confidential Information (as defined below) of Weissbeerger. The Customer shall keep in strict confidence any Confidential Information and shall: (a) not use such Confidential Information for any purpose other than for the performance of this Agreement, (b) not disclose such Confidential Information, in whole or in part, to any person or entity, unless requested to do so by Weissbeerger, and (c) keep in a safe place, and safeguard all Confidential Information exposed to or materials received from Weissbeerger, and return them immediately upon its first demand, and delete or erase any Confidential Information which could not be returned immediately following first demand, and provide Weissbeerger with a written evidence of such action.
  20. “Confidential Information” shall mean any technical, business or other information related to Weissbeerger's actual or planned business, including but not limited to, know-how, data, equipment, software programs and their sources, processes, methods, prototypes and models, all whether or not marked as confidential and whether or not covered by patents, patent applications, copyrights or other proprietary rights protection, and any other information which is confidential or proprietary in nature.]
  21. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Israel, without regard to the conflict of law provisions thereof. The exclusive jurisdiction in any matter relating to this Agreement shall be of the competent courts in Tel-Aviv-Jaffa, Israel.
  22. Entire Agreement; Amendment; Headings. This Agreement, including all exhibits hereto sets forth the entire agreement between the Parties (including the Certified Trainer) on the subject hereof and supersedes any previous understanding on the subject matter hereof. No amendment shall be effective except by written agreement signed by the Parties. The headings of the Sections in this Agreement are inserted for convenience only, and shall not be referred to in its interpretation.
  23. Assignment; Severability; No Waiver. The Customer shall not transfer or assign, whether in whole or in part, its rights and obligations under this Agreement, without the prior written consent of Weissbeerger. If any provision or any part thereof contained in this Agreement is, for any reason, held to be invalid or unenforceable in any respect under the laws of any jurisdiction where enforcement is sought, such invalidity or unenforceability will not affect any other provision of this Agreement and this Agreement will be construed as if such invalid or unenforceable provision or part thereof had not been contained therein. No delay or failure to exercise any right, power, or remedy accruing to either Party upon breach or default under this Agreement shall be deemed a waiver of any prior or subsequent breach or default of this Agreement, nor affect the validity of any provision of this Agreement.
  24. Relationship. The Parties shall act at all times under this Agreement as independent Parties. This Agreement shall not create an agency, partnership, joint venture or employer/employee relationship between the Parties. Nothing under this Agreement shall be deemed to authorize the Customer to act for, represent, or bind Weissbeerger in any way whatsoever.
  25. Notices. All notices to be given to a Party to this Agreement shall be in writing and shall be faxed or mailed by registered or certified mail, postage prepaid, or otherwise delivered by hand or by messenger, addressed to such Party's address as set forth in the preamble hereof, or to such other address with respect to a Party as such Party shall notify the other Party in writing. Notice submitted in the above manner shall be considered as delivered within 72 hours of its dispatch.
  26. Counterparts. This Agreement may be executed in any number of identical counterparts, all of which shall be deemed to be one and the same instrument.

Arbitration

Any controversy, dispute or claim between the Parties with respect to this Agreement, shall be resolved exclusively and finally by confidential binding arbitration in accordance with the following procedures: (1)  the arbitration shall be conducted in Tel Aviv, Israel, or such other location as the Parties mutually agree, (2) the arbitration proceedings will be conducted in accordance with, and pursuant to, the Israeli Arbitration Law – 1968 (the “Arbitration Law”), (3) there will be a single neutral arbitrator (“Arbitrator”) who, in the event that the Parties are unable to agree upon a mutually-acceptable arbitrator within ten (10) days after either Party shall have requested such arbitration, will be selected by the Chairman of the Chamber of Commerce in the Tel Aviv, (4) the Parties shall share equally all fees and expenses of the Arbitrator, (5) the Arbitrator shall render an award and written opinion explaining the award, the decisions and award of the Arbitrator shall be final and binding upon the Parties and the Parties hereby waive to the fullest extent permitted by law any rights to appeal or to review such award by any court or tribunal, and (6) the Arbitrator shall be bound by substantive law, but shall not be bound by the rules of evidence and the rules of civil procedures applied by Israeli courts.

IN WITNESS WHEREOF, the Parties have set forth their signatures on this Agreement as of the date first appearing above.