Version 1.0
Last Updated: November 26, 2020
These Software Terms and Conditions (the "Terms") apply to, and govern, the mutually signed ordering document (such as a Sales Order, Proposal, or Quote) to which they are attached, hyperlinked, or otherwise incorporated (the "Order"). These Terms are hereby incorporated by reference into, and made a part of, such Order. These Terms and the Order are collectively referred to as this "Agreement". To the extent of any conflict or inconsistency between a provision in these Terms and a provision in the Order, the former shall prevail, unless the Order specifically states otherwise.
The Agreement constitutes a binding agreement between Vdoo Connected Trust Ltd. (or the other Vdoo entity specified in the Order, if applicable) ("Company") and the customer specified in the Order ("Customer"). An individual entering into this Agreement on behalf of the Customer, represents that he/she has the right, authority and capacity to act on behalf of the Customer and to bind the Customer to this Agreement. Company and Customer shall hereinafter be referred to individually as a “Party” and collectively as “Parties”.
1. Background. Company is the owner, developer and provider of the software solution specified in the Order (the “Platform”). The Company wishes to grant Customer, and Customer wishes to receive a license to install, access and/or use (as applicable) the Platform in accordance with the terms and conditions specified in Exhibit A attached hereto ("Licensing Terms”) and the Order. Unless otherwise indicated, the term “Platform” also includes the Agents and any Documentation (as such terms are defined in Exhibit A).
2. Fees. The services and the license granted under the Agreement are conditioned on Customer's payment of the applicable fees and other charges specified in the Order (the "Fees"). Unless otherwise specified in the Order: (i) Customer will pay all amounts due under the Agreement in U.S. Dollars; (ii) all Fees are invoiced in advance, and are due and payable within thirty (30) days of the date of the invoice; and (iii) all payments and payment obligations hereunder are non-refundable, non-cancellable, and without right of setoff. Any amount not paid when required to be paid hereunder shall accrue interest on a daily basis until paid in full at the lesser of: (a) the rate of one and a half percent (1.5%) per month; or (b) the highest amount permitted by applicable law. All amounts payable under the Agreement are exclusive of all sales, use, value-added, withholding, and other direct or indirect taxes, charges, levies and duties. If any taxes are required to be withheld, then the amounts due to Company shall be increased by the amount necessary so that Company receives, free from liability for any withholding, an amount equal to the amount it would have received had Customer not made any such withholding.
3. Services
3.1 Support and Maintenance. Subject to payment of the Fees, Company (and/or its Affiliates) will provide Platform support and maintenance services to Customer according to the service level agreement specified in the Order (the "Support Services" and “SLA”, respectively).
3.2 Professional Services. Any Professional Services mutually agreed to between the Parties shall be set out in sequential Statements of Work referencing the Order, which, once mutually signed, will be deemed attached to this Agreement (each, a "SOW"). Professional Services shall be charged in accordance with the applicable SOW. Each SOW is hereby deemed incorporated into this Agreement by reference. To the extent of any conflict between the main body of this Agreement and a SOW, the former shall prevail, unless and to the extent that the SOW expressly states otherwise. "Professional Services" means Platform-related installation, deployment, configuration, customization, integration, training, or other professional services.
3.3 General. Support Services, Professional Services, and/or other services under this Agreement (collectively, "Services") will be performed by Company and/or its Affiliates, and are provided to Customer only. With Customer's prior written approval (not to be unreasonably withheld, conditioned, or delayed) Company may subcontract Services (in whole or in part) to a third party contractor, and Company shall remain primarily responsible for such contractor's performance of the Services.
4. Term and Termination.
4.1 Term of Agreement. This Agreement commences on the date the Order is signed by both Parties, unless the Order itself specifies a different start or effective date (the "Effective Date") and, unless terminated in accordance herewith, shall continue for the duration of the License Term (defined below) (the "Term").
4.2 Renewal. Unless specified otherwise in the Order, upon expiration of the initial License term specified in the Order (the "Initial License Term"), the License shall automatically renew for successive renewal terms of equal length (each a "Renewal License Term", and together with the Initial License Term, the "License Term"), unless either Party notifies the other Party in writing that it chooses not to renew ("Non-Renewal Notice"). The Non-Renewal Notice must be given at least sixty (60) days prior to the end of the then-current License Term.
4.3 Termination. This Agreement may be terminated as follows:
(a) In accordance with any termination rights specified in the Order;
(b) Either Party may terminate this Agreement for cause upon written notice if the other Party commits a material breach under the this Agreement, and fails to cure such breach within forty-five (45) days after receiving written notice from the other Party alleging the breach (except that for payment breaches, the cure period shall be fourteen (14) days; an
(c) Either Party may terminate this Agreement upon written notice to the other Party upon the occurrence of any of the following events in respect of such other Party: (i) a receiver is appointed for the other Party or its property, which appointment is not dismissed within sixty (60) days; (ii) the other Party makes a general assignment for the benefit of its creditors; (iii) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (iv) the other Party is liquidating, dissolving or ceasing normal business operations.
4.4Consequences of Termination. Upon termination of this Agreement:
(a) the License shall automatically terminate;
(b) Customer shall cease all access and use of the Platform thereunder (and the Hosted Service, if any, will cease);
(c) Customer shall (as directed) uninstall, permanently erase, and/or return all copies of the Platform and other Confidential Information of Company in Customer's possession or control (and furnish to Company a signed writing by an officer, certifying such uninstallation and erasure);
(d) Customer shall cease all further distribution of the Integrated Systems hereunder (except for continuing support obligations under customer agreements which have been executed prior to such termination); provided, however, that Customer shall be entitled to sell its then-current inventory of Integrated Systems for a period of thirty (30) days following termination (and all proceeds from such sales shall be applied to satisfy any outstanding payment obligations hereunder), and in respect of any such inventory not sold as aforesaid, Customer shall uninstall all Agents from such units, and as directed permanently erase and/or return to Company such Agent copies (and furnish to Company a signed writing by an officer, certifying such uninstallation and erasure) and Customer shall discontinue any further use and access thereof; and
(e) all Fees that accrued as of the effective date of termination shall become accelerated and due within thirty (30) days.
4.5Survival. Sections 5 (Customer Data), 6 (Intellectual Property Rights), and 8 (Disclaimers) through 13 (Miscellaneous) shall survive termination of this Agreement, as shall any right, obligation or provision that is expressly stated to so survive or that ought by its nature to survive. Termination shall not affect any rights, remedies, liabilities and obligations that accrued as of the effective date of termination.
5. Customer Data.
5.1 General. As between the Parties, Customer is, and shall be, the sole and exclusive owner of all data, information, software, and other content inputted, imported, transmitted, or uploaded to the Platform by or on behalf of Customer ("Customer Data"). Customer shall remain solely responsible and liable for the Customer Data and expressly releases Company from any and all liability arising from Company's use of the Customer Data in order for Company to perform under this Agreement. Customer acknowledges that: (i) the Platform does not operate as an archive or file storage service and Company does not store all of the Customer Data; and (ii) Customer is solely responsible for the backup of Customer Data.
5.2 No Sensitive Data. Customer shall not provide or make available to Company, its Affiliates, or the Hosting Provider (or otherwise expose them to) any Customer Data that includes or links to Sensitive Data. "Sensitive Data" means any (i) categories of data enumerated in Article 9(1) of the European Union's General Data Protection Regulation (Regulation 2016/679, aka the GDPR) or any successor law; (ii) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards ("PCI DSS"); (iii) Nonpublic Personal Information (NPI) (as defined by the Gramm-Leach-Bliley Act and its implementing rules and regulations) or Personal Health Information (PHI) data (as defined by the Health Insurance Portability and Accountability Act and its implementing rules and regulations); or (iv) any data similar to the foregoing that is protected under foreign or domestic laws.
5.3 Disclosure by Company. Customer acknowledges and agrees that the Company may be required to disclose Customer Data: (a) to satisfy any applicable law, regulation, legal process, subpoena or governmental request; or (b) to collect, hold and/or manage the Customer Data through Company's authorized third party service providers (including without limitation the Hosting Provider) as reasonable for business purposes, which may be located in a country that does not have the same data protection laws as the data subject's jurisdiction.
6. Intellectual Property Rights. Company (and/or its licensors, as applicable) is, and shall be, the sole and exclusive owner of all right, title and interest (including without limitation all Intellectual Property Rights) in and to: (a) the Platform; (b) its Confidential Information; (c) any anonymous or non-Customer-identifying information, data, analyses, and/or intelligence relating to the operation, support, and/or Customer’s use, of the Platform (such as metadata, aggregated data, and analytics) (collectively, "Output"); (d) any feedback (e.g., questions, ideas, comments, suggestions or the like) of or about the Platform; and (e) any and all improvements, derivative works, and/or modifications of/to any of the foregoing, regardless of inventorship or authorship. Customer shall make, and hereby irrevocably makes, all assignments necessary or reasonably requested by Company to ensure and/or provide Company (and/or its designee(s)) the ownership rights set forth in this Section (Intellectual Property Rights). Company shall be entitled, from time to time, to modify and replace the features and functionalities (but not material features or functionalities, unless it improves the material feature or functionality) and user interface of the Platform. "Intellectual Property Rights" means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, whether registered or unregistered, and whether vested, contingent, or future) in and to inventions, discoveries, works of authorship, designs, software, technical information, databases, know-how, mask works, methods, technology, and other intellectual property, and includes but is not limited to patents, copyrights and similar authorship rights, moral (and similar personal) rights, mask work rights, data and database rights, trade secret rights and similar rights in confidential information and other non-public information, design rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as: (i) all applications, registrations, renewals, reexaminations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) all goodwill associated with the foregoing.
7. Warranties.
7.1 Mutual. Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law.
7.2 Performance Warranty. Company warrants to Customer that, during the Warranty Period (defined below), the Platform will, under normal authorized use, in all material respects perform the functions described in the Documentation (the "Warranty"). The Warranty shall not apply if the failure of the Platform results from or is otherwise attributable to: (i) repair, maintenance or modification of the Platform by persons other than the Company or its authorized contractors; (ii) accident, negligence, abuse or misuse of the Platform; (iii) use of the Platform other than in accordance with the Platform's Documentation; (iv) Customer's failure to implement software updates provided by the Company specifically to avoid such failure; or (v) the combination of the Platform with equipment or software not authorized or provided by the Company. In the event of any Warranty breach, and provided Customer has notified Company in writing of the breach promptly after discovery thereof, Company shall first determine whether the breach can be resolved via Support Services, and Customer shall fully cooperate with Company in making such determination. If Company determines that such Support Services cannot resolve the breach, Company shall (at its sole option, and at no additional charge) use commercially reasonable efforts to provide a workaround, bug fix or patch, and Customer shall fully cooperate with Company in such efforts. For the avoidance of doubt, any workaround, bug fix, or patch shall not re-commence the Warranty Period, and are warranted for the remainder of the Warranty Period as then in effect. In the event Company is unable to provide a workaround, bug fix or patch within thirty (30) business days of receipt of the Warranty breach notice, then Customer shall be entitled (within fifteen (15) days) to terminate this Agreement upon written notice to Company and receive a pro-rated refund of any prepaid and unutilized License Fees hereunder based on the remaining period of the Term. The foregoing represents Company's sole liability, and Customer's sole remedy, for any Warranty breach or other breach under this Section (Performance Warranty). The "Warranty Period" shall be ninety (90) days commencing upon the earlier of the date of installation of the Platform or use of the Platform in a production environment.
7.3 Customer Warranties. Customer represents and warrants that: (a) no processing of Customer Data (including without limitation any scanning of Product firmware by the Platform) under this Agreement (whether by Company, its Affiliates, or the Hosting Provider) will conflict with or violate any law, regulation, governmental or industry rule or standard, proprietary right, privacy right, or contractual obligation; (b) no Customer Data shall include or disclose the source code of any Product firmware, or the source code of any other software whose Intellectual Property Rights are not owned by Customer); (c) it has obtained and will maintain all required consents and licenses, and will maintain all ongoing legal bases (if applicable), necessary to provide, make available, and otherwise expose Customer Data to Company, its Affiliates, and the Hosting Provider; and (d) it shall comply with any law, regulation, or contractual obligation requiring the reporting or disclosure of security findings or discoveries (such as CVEs, zero-days, and similar vulnerabilities) generated hereunder. If, as a result of or in connection with any breach by Customer under this Section (Customer Warranties), Company or its Affiliates (including without limitation their respective personnel) suffer(s) or incur(s) any loss, liability, damage, fine, penalty, cost and/or expense (including legal costs and expenses, such as reasonable attorneys' fees) (collectively, "Losses"), Customer shall indemnify and hold harmless Company and such Affiliates (and such personnel) for such Losses; and furthermore, to the extent there is a claim, action, or proceeding made or brought against Company or the Affiliate (or their personnel) in connection with such Losses, Customer shall, at the written request of Company, defend the claim, action, or proceeding at Customer's cost and expense.
8.DISCLAIMERS.
EXCEPT FOR THE WARRANTY AND AS MAY BE EXPRESSLY STATED OTHERWISE IN THIS AGREEMENT, THE PLATFORM, SERVICES, OUTPUT, AS WELL AS ANY OTHER GOODS AND SERVICES PROVIDED OR MADE AVAILABLE BY COMPANY OR ITS AFFILIATES HEREUNDER (COLLECTIVELY, THE "COMPANY MATERIALS") ARE PROVIDED AND MADE AVAILABLE ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL DEFECTS, AND CUSTOMER'S ACCESS AND USE OF THE COMPANY MATERIALS IS AT CUSTOMER'S SOLE RISK. ANY AND ALL EXPRESS, IMPLIED AND STATUTORY CONDITIONS AND WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION, NON-INFRINGEMENT, OR QUALITY OF SERVICE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE) ARE HEREBY DISCLAIMED BY COMPANY AND ITS LICENSORS.
COMPANY DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION: (A) REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, TIMELINESS, COMPLETENESS, OR QUALITY OF COMPANY MATERIALS; (B) THAT CUSTOMER'S USE OF COMPANY MATERIALS WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; (C) REGARDING THE OPERATION OF ANY CELLULAR NETWORKS, THE PASSING OR TRANSMISSION OF DATA VIA ANY NETWORKS OR THE CLOUD, OR ANY OTHER CELLULAR OR DATA CONNECTIVITY PROBLEMS; OR (D) REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY LAWS, REGULATIONS, OR OTHER GOVERNMENT OR INDUSTRY RULES OR STANDARDS. COMPANY WILL NOT BE LIABLE OR OBLIGATED IN RESPECT OF DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO HOSTING PROVIDERS OR PUBLIC NETWORKS.
9.Confidentiality. Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including without limitation trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, and any other information that a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). The Documentation shall be considered as Confidential Information hereunder. Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party's Confidential Information from disclosure to a third party. The receiving Party’s obligations under this Section, with respect to any Confidential Information of the disclosing Party, shall not apply to and/or shall terminate if such information: (a) was already lawfully known to the receiving Party (without confidentiality obligation) at the time of disclosure by the disclosing Party; (b) was disclosed to the receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the receiving Party has become, generally available to the public; or (d) was independently developed by the receiving party without access to, or use of, the disclosing Party’s Confidential Information. Neither Party shall use or disclose the Confidential Information of the other Party except for performance under this Agreement (“Permitted Use”). The receiving Party shall only permit access to the disclosing Party's Confidential Information to its respective employees, consultants, affiliates, agents and subcontractors having a need to know such information in connection with the Permitted Use, who either (i) have signed a non-disclosure agreement with the receiving Party containing terms at least as restrictive as those contained herein or (ii) are otherwise bound by a duty of confidentiality to the receiving Party at least as restrictive as the terms set forth herein. The receiving Party will be allowed to disclose Confidential Information to the extent that such disclosure is required by law, regulation, or by the order or a court of similar judicial or administrative body, provided that it notifies the disclosing Party of such required disclosure to enable disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.
Notwithstanding the above, in respect of reports generated hereunder by the Platform's scanning of Product firmware ("Reports"), Customer shall not disclose or otherwise make available such Reports (in whole or in part) to any third party, without the prior express written consent of Company.
10. Indemnification. In the event a third party makes or institutes any claim, action, or proceeding against Customer alleging that Customer's exercise of the License in accordance with this Agreement infringes such third party's copyright or patent (an "Infringement Claim"), Company shall: (a) at its own expense, defend Customer against the Infringement Claim; and (b) indemnify and hold harmless Customer for any amount finally awarded against or imposed upon Customer (or otherwise agreed in settlement) under the Infringement Claim.
As a condition to the above, Customer agrees: (A) to provide Company with prompt written notice of the Infringement Claim; (B) to cede to Company full control of the defense and settlement of the Infringement Claim (except that any non-monetary obligation imposed on Customer under a settlement shall require Customer's prior written consent, not to be unreasonably withheld, conditioned or delayed); (C) to provide Company with all information and assistance reasonably requested by Company; and (D) not to admit any liability under (or otherwise compromise the defense of) the Infringement Claim. Any participation by Customer in the defense of the Infringement Claim shall be at Customer's own cost and expense.
Company will have no liability under this Section (Indemnification) to the extent that the Infringement Claim is based on or results from: (i) a modification to the Platform not made by Company; (ii) the combination of the Platform with any third party product or service; and/or (iii) any Customer instructions or specifications.
Should the Platform (in whole or in part) become, or in Company's opinion be likely to become, the subject of an Infringement Claim, then Customer permits Company, at Company's option and expense, to either: (x) obtain for Customer the right to continue using the Platform (or part thereof); or (y) replace or modify the Platform (or part thereof) so that it's use hereunder becomes non-infringing; provided, however, that if (x) and (y) are not, in Company's opinion, commercially feasible, Company may terminate this Agreement upon written notice to Customer, and Customer shall be entitled to receive a pro-rated refund of any prepaid and unutilized License Fees under this Agreement based on the remainder of the License Term.
This Section (Indemnification) represents Company's sole liability, and Customer's sole remedy, for any Infringement Claim, or other claims of actual or alleged infringement. Company's combined aggregate liability under this Section (Indemnification) shall not exceed three (3) times the amounts actually paid by Customer to Company under this Agreement.
11.LIMITATION OF LIABILITY.
11.1EXCEPT FOR BREACHES OF CONFIDENTIALITY UNDER SECTION 10 (CONFIDENTIALITY), A BREACH OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS (SUCH AS A BREACH OF THE LICENSE), IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, OR LICENSORS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR: (A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES; (B) ANY LOSS OF PROFITS, BUSINESS, OPPORTUNITY, REVENUE, CONTRACTS, ANTICIPATED SAVINGS, OR WASTED EXPENDITURE; (C) ANY LOSS OF, OR DAMAGE TO, DATA, INFORMATION SYSTEMS, REPUTATION, OR GOODWILL; AND/OR (D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
11.2THE COMBINED AGGREGATE LIABILITY OF COMPANY AND ALL COMPANY AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.
11.3 THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION, OR OTHERWISE.
12. Miscellaneous.
12.1 Entire Agreement and Amendments. This Agreement (and its Exhibits) represents the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the Parties with respect to such subject matter. Any terms or conditions (whether printed, hyperlinked, or otherwise referenced) in a Customer-issued purchase order or similar correspondence, which purport to modify, supplement, or supersede this Agreement, shall be void and of no effect. In entering into this Agreement, neither Party is relying on any representation or statement not expressly specified in this Agreement. This Agreement may only be amended by a written instrument duly signed by each Party. The section and subsection headings used in this Agreement are for convenience only. This Agreement may be executed in counterparts each of which will be considered an original, but all of which together will constitute one and the same instrument.
12.2 Assignment. This Agreement may not be assigned, in whole or in part, by either Party without the prior express written consent of the other Party; except, however, that either Party may, upon written notice, assign this Agreement in whole to: (A) an Affiliate; or (B) a successor in connection with a merger, consolidation, or acquisition of all or substantially all of the assigning Party's assets or business relating to this Agreement. Any prohibited assignment will be null and void. Subject to the provisions of this Section (Assignment), this Agreement will bind and benefit each Party and its respective successors and assigns. Furthermore, any Company obligation hereunder may be performed (in whole or in part), and any Company right (including invoice and payment rights) or remedy may be exercised (in whole or in part), by an Affiliate of Company. "Affiliate" means, with respect to either Party, any person, organization or entity controlling, controlled by or under common control with, such Party. For purposes of this definition only, “control” of another person, organization or entity will mean the possession, directly or indirectly, of the power to direct or cause the direction of the activities, management or policies of such person, organization or entity, whether through the ownership of voting securities, by contract or otherwise. Without limiting the foregoing, “control” will be deemed to exist when a person, organization or entity (i) owns more than fifty percent (50%) of the outstanding voting stock or other ownership interest of the other organization or entity, or (ii) possesses, directly or indirectly the power to elect or appoint more than fifty percent (50%) of the members of the governing body of the other organization or entity.
12.3 Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Israel, without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed. Any claim, dispute or controversy between the Parties will be subject to the exclusive jurisdiction and venue of the courts located in Tel Aviv, Israel, and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, each Party may seek equitable relief in any court of competent jurisdiction. EXCEPT TO SEEK EQUITABLE RELIEF, PAYMENT OF FEES, OR TO OTHERWISE PROTECT OR ENFORCE A PARTY'S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS, NO ACTION, REGARDLESS OF FORM, UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE DATE ON WHICH THE CORRESPONDING LIABILITY AROSE. Any claims or damages that Customer may have against Company shall only be enforceable against Company, and not any other entity or Company's officers, directors, representatives, or agents.
12.4 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) the Parties hereto agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such illegality, invalidity or unenforceability), and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
12.5 Waiver and Remedies. No failure or delay on the part of either Party in exercising any right or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof, or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing, duly signed by the waiving Party, and will be valid only in the specific instance in which given. Except as may be expressly provided otherwise in this Agreement, no right or remedy conferred upon or reserved by either Party under this Agreement is intended to be, or will be deemed, exclusive of any other right or remedy under this Agreement, at law, or in equity, but will be cumulative of such other rights and remedies.
12.6 Relationship. The relationship of the Parties is solely that of independent contractors, neither Party nor its employees are the servants, agents, or employees of the other, and no exclusivities arise out of this Agreement. Nothing in this Agreement shall be construed to create a relationship of employer and employee, principal and agent, joint venture, partnership, association, or otherwise between the Parties. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party and neither Party will create or attempt to create any obligation, express or implied, on behalf of the other Party.
12.7 Force Majeure. If any performance (excluding payment obligations) under this Agreement by either party is prevented, hindered, or delayed by reason of an event of Force Majeure (defined below), the party so affected shall be excused from such performance to the extent that, and for so long as, performance is prevented, interrupted, or delayed thereby, provided that such party so affected shall promptly notify the other party of the occurrence of such event. If and when performance is resumed, all dates specified in this Agreement and/or in any purchase orders accepted pursuant to this Agreement shall be automatically adjusted to reflect the period of such prevention, interruption, or delay by reason of such event of Force Majeure. For purposes of this Agreement, an event of Force Majeure shall be defined as: (a) fire, flood, earthquake, explosion, pandemic or epidemic (or similar regional health crisis), or act of God; (b) strikes, lockouts, picketing, concerted labor action, work stoppages, other labor or industrial disturbances, or shortages of materials or equipment, not the fault of either party; (c) invasion, war (declared or undeclared), terrorism, riot, or civil commotion; (d) an act of governmental or quasi-governmental authorities; (e) failure of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, shortage of adequate power or transportation facilities; and/or (f) any matter beyond the reasonable control of the affected party. Notwithstanding the foregoing, Customer shall not be entitled to use, or rely on, this Section (Force Majeure) in connection with any Customer breach of the License and/or Company's Intellectual Property Rights.
12.8 Notices. All notices or other communications provided for in connection with this Agreement shall be in writing and shall be given in person, by courier, by facsimile, email, or by registered or certified mail, postage prepaid, addressed as set forth above. All notices and other communications delivered in person or by courier service shall be deemed to have been given as of one business day after sending thereof, those given by facsimile transmission with confirmation or receipt shall be deemed to have been given as of the date of transmission thereof (provided that such date is a business day in the country of receipt and if not, the next business day), and all notices and other communications sent by registered mail shall be deemed given three (3) days after posting. Notices sent by email shall be deemed received upon receipt of such email.
12.9 Government Users. The Platform is "commercial computer software" and the Documentation is "commercial computer software documentation," pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. If Customer is an agency, department, employee or other entity of the United States Government, and/or if licenses to the Platform (as part of an Integrated System) are to be granted by Customer to such persons or entities, then access to and use of the Platform shall be subject solely to the terms and conditions of this Agreement.
12.10 Legal Compliance. Customer shall be solely responsible and liable for complying with any law, regulation, or contractual obligation requiring the reporting or disclosure of security findings or discoveries (such as CVEs, zero-days, and similar vulnerabilities) generated hereunder (it being agreed, however, that nothing in this Agreement shall be construed as prohibiting or restricting Company or its Affiliate from doing such reporting or making such disclosures to the applicable governmental authority, industry body, or third party manufacturer). Customer shall be solely responsible for obtaining all required authorizations and licenses from applicable government authorities under Export Control Laws (defined below), in connection with Customer's use and authorized distribution of the Platform. Customer represents and warrants that: (a) it is not a resident of (and will not access or use the Platform in) a country that the U.S. government has embargoed for use of the Platform, nor is an entity named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) its country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address specified above. Customer shall not transfer, export, re-export, import, re-import or divert the Platform in violation of any Export Control Laws, and shall not transfer, export, re-export, import, re-import or divert any the Platform to Lebanon, Syria, Iran, Iraq, Sudan, Yemen, Cuba, or North Korea (or other countries specifically designated in writing by Company from time to time). In the event of a breach under this Section (Export Compliance), Customer agrees to indemnify and hold harmless Company and all its Affiliates (and their respective directors, officers, and employees) for any fines and/or penalties imposed upon Company or its Affiliate (or such persons) as a result of such breach. "Export Control Laws" means all applicable export and re-export control Laws applicable to Customer and/or Company or its Affiliates (such as those of the State of Israel), as well as the United States' Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.
EXHIBIT A
Licensing Terms
1.License. Subject to the terms and conditions of this Agreement, Company hereby grants Customer, during the Term, a limited, non-exclusive, non-sublicensable, worldwide, non-transferable, and revocable license to do the following (collectively, the "License").
(a) install the Management Module in Customer's environment (unless purchased as a Hosted Service), and access and use such Management Module on an internal end-use basis;
(b) if applicable under the Order, install such number of Agents (as authorized by the Order) on such number of Products (of the applicable Product Line), to thereby create the resulting Integrated Systems; and
(c) if applicable under the Order, promote, market, and distribute (whether directly or indirectly via channel partners) the Agents as part of the Integrated Systems, and permit end-use purchasers of the Integrated Systems to execute the Agent in accordance with the terms and conditions set forth in a txt file to be place in the same library folder as the Agent.
For the avoidance of doubt: (i) the License is subject to the License Scope, and Customer shall not use any technical or other means within, or external to, the Platform to exceed or circumvent the License Scope; and (ii) the Platform (including any copies thereof, such as the Agents) are only licensed (and not sold) hereunder. Any rights not expressly granted herein are hereby reserved by Company and its licensors, and, except for the License, Customer is granted no other right or license to the Platform, whether by implied license, estoppel, exhaustion, operation of law, or otherwise. Delivery of the Platform (except for the Hosted Service, if applicable) shall be by electronic download that will be made available promptly following the Effective Date (or according to any other schedule specified in the Order). The Platform shall be deemed accepted upon delivery.
2. Customer Account. The Platform may only be used through a Customer account (the “Account”). Such Account may be accessed solely by Customer's employees who are explicitly authorized by Customer to use the Platform (each, a “Permitted User”). Customer will ensure that the Permitted Users keep the Account login details secure. Unauthorized access or use of the Account or the Platform must be immediately reported to the Company in writing.
3. Hosting. If the Hosted Service is purchased, the hosting and all related processing will be provided by a third party hosting provider selected by Company ("Hosting Provider"), and accordingly the availability of the Hosted Service shall be in accordance with the Hosting Provider's then-current uptime commitments. Company shall notify Customer in writing if, and when, Company engages a new Hosting Provider pursuant to this Agreement. In the event Company decides to host the Management Module internally on Company's own servers under this Agreement, then, at the written request of Customer, the Parties agree to negotiate in good faith an addendum to this Agreement to address Hosted Service uptime availability.
4. License Restrictions. As a condition to (and except as expressly permitted by) the License, Customer shall not do (or permit or encourage to be done) any of the following License restrictions, in whole or in part: (a) copy, "frame" or "mirror" the Platform or Hosted Service; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Platform or Hosted Service to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Platform or Hosted Service; (d) modify, alter, adapt, arrange, or translate the Platform or Hosted Service; (e) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Platform or Hosted Service; (f) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Platform or Hosted Service; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Platform or Hosted Service; (h) make a derivative work of the Platform or Hosted Service, or use them to develop any service or product that is the same as (or substantially similar to) either of them; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Platform or Hosted Service; (j) employ any hardware, software, device, or technique to pool connections or reduce the number of Products, Agents, devices or users that directly access or use the Platform or Hosted Service (sometimes referred to as 'virtualisation', 'multiplexing' or 'pooling') in order to exceed or circumvent the License Scope; (k) forge or manipulate identifiers in order to disguise the origin of any data or content inputted or uploaded to, or transmitted through, the Platform or Hosted Service by Customer; (l) take any action that imposes or may impose (as determined in Company's reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Platform or Hosted Service, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure; or (m) test the Platform or use the Platform in connection with any benchmark tests, evaluation, or any other tests of which the results are designated or likely to be published in any form or media, or otherwise made available to the public, without Company's prior express written approval.
5. Verification Features. Customer hereby acknowledges and agrees that the Platform may contain a number of methods to verify and support Platform use. These methods may include technological features that monitor Platform use, prevent unauthorized use, and provide Platform deployment verification. For the avoidance of doubt, these methods will not include access to sensitive proprietary assets of the Customer.
6. Product Lines. For the avoidance of doubt, and without limitation, any of the following changes to a Product shall constitute a new or additional Product Line (thereby excluding it from an existing Product Line and this Agreement), and shall require a new Order: (a) a change to the Product's operating system; (b) a decrease in the Product's storage memory; and/or (c) a new firmware in the Product.
7. Definitions. The following capitalized terms shall have the following meanings:
"Agent" means the runtime agent generated by the Platform's ERA™ runtime agent module.
"Documentation" means the user manual and similar user documentation provided by Company in conjunction with the Platform.
"Hosted Service" means the provision of the Management Module as a cloud service or otherwise via web access.
"Integrated System" means a Product that has an Agent installed on it.
"License Scope" means any Platform usage and/or consumption limitations and parameters (for example, as to volume of users, volume of Agent licenses and Products, Product Line(s), location, features, duration) set forth in the Order.
"Management Module" means the user interface dashboard module of the Platform.
"Products" means those Customer-owned hardware devices belonging to the applicable Product Line(s) covered by the Order.
"Product Line" means a group of hardware devices from the same family, and which share the same hardware and firmware versions.
[End of Exhibit A]
Last Updated: November 26, 2020
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