By executing the Magma Devs Order Form the Customer agrees to be bound by the following Terms and Conditions (“Terms& Conditions”):

1. Definitions.

1.1. Affiliate shall mean and include any entity or association controlled by, controlling or under common control of a party hereto. For purposes of this definition, the term “control” shall mean the power to manage or direct the affairs of the person or entity in question, whether by ownership of voting securities, by contract or otherwise.

1.2. Authorized User shall mean any employee, contractor, representative, or other person acting on Customer’s behalf who is authorized by Customer to use the Software and who has been supplied with access to the Software by either Customer or Magma Devs, at Customer’s written request.

1.3. Intellectual Property Right. shall mean any and all worldwide, whether registered or not (a) patents, patent applications and patent rights; (b) rights associated with works of authorship, including copyrights, copyrights applications, copyrights restrictions, mask work rights, mask work applications and mask work registrations; (c) rights relating to the protection of trade secrets and confidential information; (d) trademarks, trade names, Software marks, logos, trade dress, goodwill and domains (“Trademarks”); (e) rights analogous to those set forth herein and any other proprietary rights relating to intangible property; and (f) divisions, continuations, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.

1.4. “Software” shall mean (i) the Magma Devs proprietary software, known as the Magma Devs Smart Router, (ii) any software that is delivered to Customer by Magma Devs; (iii) all revisions, corrections, modifications, enhancements, improvements and/or updates and upgrades to the foregoing, and (iv) all related documentation included in the package and/or placed on Magma Devs’s World Wide Web site. “Development Services” shall mean all set-up, installation, customization and development services provided by Magma Devs to Customer. “Support Services” are as defined below in Section 8, and together with the Development Services shall be referred to collectively as the “Services”.

2. License and Services. Subject to these Terms & Conditions (including payment of all applicable Software fees and Services fees) and during the License Term (as defined below), Magma Devs shall license the Software to Customer to be used by Customer’s and its Affiliates’ users solely for internal use of Customer or such Affiliate (as the case may be) during the License Term (as defined below), with no rights to resell the Software. For this purpose, Magma Devs will customize and install the Software an enable Customer to access and use the Software .  

3. Updates and Improvements. The terms of these Terms & Conditions apply to the Services, the Software,  as well as to Software updates, and upgrades subsequently provided by Magma Devs to Customer. Magma Devs may update the functionality, user interface, usability and other user documentation, training and educational information of, and relating to the Software from time to time in its sole discretion and in accordance with these Terms& Conditions as part of its ongoing mission to improve the Software and customers’ use of the Software.

4. Order Form. The order form to which these Terms & Conditions is attached shall be binding on the parties, once fully signed (the “Order Form”). The Order Form is non-cancellable,  and shall be subject to the terms and conditions of, these Terms & Conditions. For any Order Form submitted by or on behalf of Customer’s Affiliate, the term “Customer” shall refer to Customer and such Affiliate(s). 

5. Customer Obligations and Limitations.

5.1. Customer will designate a specific person or persons authorized by Customer to manage and support the Software, including the creation of usernames and passwords for Authorized Users. Customer is solely responsible for maintaining the status of its Authorized Users. Customer and its Authorized Users will maintain the confidentiality of all usernames, passwords, access, and information related to the Software and use thereof under their control. Except to the extent caused by Magma Devs’s breach of these Terms & Conditions, including its obligations under Section ‎10 (Confidential Information), Magma Devs is not responsible for unauthorized access to the Software. Customer will contact Magma Devs promptly if (i) if Software access information is lost, stolen, or disclosed to an unauthorized person; (ii) Customer reasonably believes that the Software has been compromised, including any unauthorized access, use, or disclosure of Software access information; or (iii) any other breach of security in relation to its passwords, usernames, access information, or Magma Devs’s Software that may have occurred or is reasonably likely to occur.

5.2. Customer shall not (i) copy, reproduce, sell, license (or sub-license), assign, or transfer the Software or any part thereof, or otherwise permit any third party to do any of the foregoing; (ii) modify, disassemble, decompile, reverse engineer, revise or enhance or create any derivative works or otherwise merge or utilize all or any part of the Software with or into any third party materials or components or attempt to access or discover the Software’s source code; (iii) place the Software onto a server so that it is accessible via a public network or use the Software for timesharing or Software Bureau purposes; (iv) ship, transfer, or export the Software or any component thereof or use the Software in any manner, prohibited by law, including without limitation to, sell, distribute, export or download Software: (a) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Lebanon or Syria, (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, (c) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. or Israeli government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval, or (d) otherwise in violation of any export or import restrictions, laws or regulations of the U.S. or Israel or any foreign agency or authority.  Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list; (v) contest Magma Devs's Intellectual Property Rights to the Magma Devs IPR; (vii) perform any act or be responsible to any omission that is illegal or in Magma Devs's discretion jeopardizes, destabilizes, interrupts or encumbers the Software or their servers and/or has a detrimental impact on Magma Devs and/or Magma Devs IPR; (viii) transmit or upload via the Software any spam, viruses, spyware or other harmful, infringing, illegal, disruptive or destructive content, messages or files; (ix) access the Software and/or its servers through or use with the Software any unauthorized means, services or tools, including, without limitation, any data mining, robots, or similar automated means or data gathering and extraction tools, including, without limitation, in order to extract for re-utilization of any parts of the Software; (x) use the Software for any purpose other than as permitted by these Terms & Conditions; (xi) knowingly utilize the Software including without limitation any related point of presence, servers and network, in any way which will result in the violation or circumvention of any applicable laws or regulations including, without limitation, those enforcing censorship, privacy, government authority restrictions or other; (xii) directly or indirectly conduct any penetration testing (including to users' systems, network and/or servers) through or using the Software and/or their respective connectivity or networks; (xiii) use the Software in a manner that does not comply with any restrictions and limitations set forth in Customer’s Order Form (including number of sites, users, and bandwidth volume, and device limitations set forth therein); or (xiv) cause or permit any third party to do any of the foregoing.

5.3. Customer is solely responsible for acquiring and maintaining all of the hardware, ancillary software and services necessary to access and make use of the Software, including without limitation paying all fees and other costs related to infrastructure requirements (e.g. internet access, electricity, etc.). Customer shall use the Software in compliance with the applicable operating instructions and all applicable laws and regulations.

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6.Ownership. The Software and all of Magma Devs’ Confidential Information, Trademarks, Feedback (as defined below), including without limitation all improvements, enhancements and derivatives thereof and all Intellectual Property Rights thereto (“Magma Devs IPR”) are exclusively owned by Magma Devs and/or its licensors. These Terms & Conditions do not convey to the Customer any right, title or interest in the Magma Devs IPR. Customer’s existing Intellectual Property Rights to its Confidential Information, Trademarks and services and products shall remain the exclusive property of Customer (“Customer IP”). To the extent any Customer IP is necessary for Magma Devs to provide the Software, Customer hereby grants a license to use its Customer IP to Magma Devs for the sole and limited purpose of carrying out the Software for Customer.

7. License Term, Fee, Payment & Taxes.

7.1. License Term. Magma Devs hereby grants a non-exclusive, non-transferable, non-sublicensable license to use the Software for its internal purposes  under these Terms & Conditions, for a period which  shall commence as of the start date set forth in the applicable Order Form and shall continue for the length of time referenced in the applicable Order Form (not to be less than one year) unless earlier terminated in accordance with the terms of these Terms & Conditions  (the “License Term”). At least 30 days prior to the end of the then-current License Term the parties shall discuss in good faith the terms of extending the License Term, including applicable fees for such extended term. 

7.2. Fees and Payment. All fees payable are due 30 days from the end of the current month of the invoice date (net +30) unless otherwise specified in an Order Form. Unless otherwise set forth herein, all fees are non-refundable. Any amount not paid when due shall bear a late payment charge, until paid, in an amount equal to 0.75% per month or, if lower, the maximum rate allowed by law; provided however that such interest shall only begin to accrue following notice by Magma Devs to Customer that Customer is in default of payment and Customer did not cure the default within 14 business days of said notice. 

7.3. Taxes. Customer will be responsible for all applicable sales, use and excise taxes and like charges imposed with respect to the Magma Devs Service, Customer’s use thereof or any services provided by Magma Devs, except for taxes based on the net income of Magma Devs.

8. Feedback. Feedback from Customer regarding the Software and Services, their use or any suggested improvements, enhancements or derivatives (“Feedback”) is welcomed by Magma Devs. Customer is not required to provide Feedback, however, to the extent that it does so, such Feedback shall not constitute Customer's Confidential Information and Customer acknowledges that Magma Devs may use such Feedback in any manner Magma Devs sees fit, without payment of royalty or any other consideration. 

9. Confidential Information. The Software contains valuable trade secrets of Magma Devs and any disclosure or unauthorized use thereof will cause irreparable harm and loss to Magma Devs. The parties will comply with the obligations set forth in the non-disclosure agreement signed between the parties and attached hereto as Exhibit  C (“NDA”) which is hereby incorporated into these Terms & Conditions and  shall apply for the entire duration of the License Term mutatis mutandis ; and if no such NDA exists the following shall apply: each party expressly undertakes to retain in confidence and to require its employees to retain in confidence all information and know-how in respect of the Software and/or that are transferred to one party by the other, or discovered by one party through the other (“Confidential Information”).  Each party expressly undertakes to (i) limit dissemination of the Confidential Information solely to its employees who have a need to know and who are bound by obligations and restrictions as to confidentiality and Intellectual Property Rights no less restrictive on said employees and no less protective of Magma Devs IPR and a party’s Confidential Information than the terms hereof; (ii) not disclose the Confidential Information to any third party; and (iii) not use the Confidential Information for any purpose other than as explicitly permitted herein.  

10. Termination. Customer may terminate these Terms & Conditions by 30 days prior written notice to Magma Devs if Magma Devs is in material breach of these Terms & Conditions and fails to cure the breach within the said notice period, in which case Customer will be entitled to receive a pro-rata refund of all pre-paid fees attributable to any period post termination, if any. Magma Devs may terminate this Agreement by notice to Customer: (i) by 14 days prior written notice to Customer in any of the following events: (a)  Customer’s failure to comply with  any of its obligations hereunder; (b) failure by Customer to pay any of the applicable fees; or (c) violation of any of the limitations set forth in Section ‎5 above; or (ii) immediately and without notice  if Customer attempts to transfer or assign any of its rights, liabilities or obligations under these Terms & Conditions contrary to the provisions of these Terms & Conditions.

11. Effects of Termination. Upon termination or expiration of this Terms & Conditions pursuant to Section 11: Customer shall immediately pay Magma Devs all fees and payments, regardless of the due date of payment, pro-rated to the period up through termination. Customer shall cease use of the Software and immediately return to Magma Devs all Magma Devs Confidential Information and Magma Devs IPR in any media and shall erase all copies of the Service, and Magma Devs shall immediately return to Customer all Customer Confidential Information. Notwithstanding the termination or expiration of these Terms & Conditions, Sections ‎6, ‎10, ‎13, ‎15, and 16 shall survive and remain in effect in perpetuity.

12. Limitations of Liability. NEITHER PARTY SHALL BE  LIABLE UNDER ANY LEGAL THEORY WHETHER CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL, CONSEQUENTIAL,  SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, LOSS OF DATA INCLUDING ARISING OUT OF THE USE OF OR INABILITY TO USE THE  SOFTWARE OR OTHER PECUNIARY LOSS) ARISING OUT OF SERVICES PROVIDED HEREUNDER AND/OR THE USE OF OR INABILITY TO USE THE SOFTWARE OR ANY PART THEREOF EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

EXCEPT FOR LIABILITIES ARISING FROM ANY BREACH OF CONFDIENTIALITY OBLIGATIONS OR RESULTING FROM INTENTIONAL MISCONDUCT OR FRAUD, MAGMA DEVS’S LIABILITY ARISING IN CONNECTION HEREWITH SHALL NOT EXCEED AN AMOUNT EQUAL TO THE AGGREGATE SUBSCRIPTION FEES PAID BY CUSTOMER TO MAGMA DEVS FOR THE SOFTWARE DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.

13. Disclaimer of Warranty.  MAGMA DEVS DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. MAGMA DEVS MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, REGARDING ANY THIRD-PARTY SERVICES, PRODUCTS, OR ACTIVITIES, OR ANY SERVICES, PRODUCTS, OR ACTIVITIES OF CUSTOMER OR CUSTOMER’S END USERS OR CLIENTS. MAGMA DEVS SHALL NOT BE LIABLE FOR, AND HEREBY DISCLAIMS ANY AND ALL LIABILITY ARISING FROM OR RELATED TO: (A) ANY THIRD-PARTY SERVICES OR ACTIVITIES, INCLUDING ANY RPC NODES OR OTHER THIRD-PARTY INFRASTRUCTURE, WHETHER OR NOT THE SOFTWARE DIRECTS CUSTOMER TO SUCH THIRD PARTIES; AND (B) ANY SERVICES, PRODUCTS, OR ACTIVITIES OF CUSTOMER OR CUSTOMER’S END USERS OR CLIENTS. ALL SUCH MATTERS ARE THE SOLE RESPONSIBILITY OF CUSTOMER AND/OR SUCH THIRD PARTIES. CUSTOMER IS SOLELY RESPONSIBLE FOR TAKING ANY PRECAUTIONS CUSTOMER DEEMS NECESSARY OR ADVISABLE TO PROTECT AGAINST ANY CLAIM, DAMAGE, LOSS, OR HAZARD THAT MAY ARISE FROM CUSTOMER’S OR ITS END USERS’ INTERACTIONS OR TRANSACTIONS WITH ANY THIRD PARTY.

14. Logo & Name. Magma Devs may use Customer's name and logo for Magma Devs’s marketing purposes, provided that you give your prior consent. Customer agrees that Magma Devs may send newsletters, updates, and marketing material to Customer, unless Customer expressly notifies Magma Devs that it does not wish to receive such marketing materials or unless Customer opts out from receiving any electronic mail, notices or newsletters. 

15. Governing Law & Jurisdiction. These Terms & Conditions is governed by the laws of the State of Delaware without regard to conflict of laws provisions thereof.  The competent courts in the State of Delaware shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Terms & Conditions and both parties hereby irrevocably submit to the exclusive jurisdiction of those courts.

16. General. (i) These Terms& Conditions and the Order Form, and the Exhibits hereto are the entire agreement between Customer and Magma Devs in respect of the subject matter herein and this Terms& Conditions shall not be modified except as provided herein. (ii) These Terms & Conditions may only be amended by written agreement of the parties. (iii) Neither party may assign or otherwise transfer these Terms & Conditions or any of their respective rights and obligations under these Terms & Conditions to any third party without the prior written consent of the other party, provided however that Magma Devs may assign this agreement in the scope of a change of control, or sale of all of its assets or substantially all assets of Magma Devs to an acquirer, as long as such acquirer or surviving entity undertakes to uphold all of Magma Devs obligations hereunder. Any unauthorized assignment will be void and of no force or effect. (iv) Unless otherwise expressly provided, no provisions of these Terms & Conditions are intended or shall be construed to confer upon or give to any person or entity other than Customer and Magma Devs, its affiliates and successors or assignees any rights, remedies or other benefits under or by reason of these Terms & Conditions. (v) No failure or delay on the part of a party hereto in exercising any right, power or remedy shall operate as a waiver thereof, any waiver granted by such party must be explicit and in writing and shall be valid only in the specific instance in which given. (vi)  The terms of these Terms & Conditions and the Magma Devs generated Order Form shall apply to all orders, and any additional or inconsistent terms appearing on purchase orders generated by Customer, if applicable, are not incorporated into these Terms & Conditions and are not otherwise binding on Magma Devs. 

17. Force Majeure. Neither party shall be liable for any delay or failure to perform its obligations under this Agreement if such delay or failure results from any event beyond its reasonable control, including but not limited to acts of God, natural disasters, war, terrorism, labor disputes, government actions, or failures of utilities or communications (each, a “Force Majeure Event”). Any delay caused by a Force Majeure Event shall not constitute a breach of this Agreement. The affected party shall use its best efforts to mitigate the impact of the Force Majeure Event and to find a reasonable workaround or alternative means of performance as soon as practicable.