CYOLO SECURITY LTD. END USER LICENSE AGREEMENT
This End User License Agreement (“Agreement”) permits Customer (as defined in the Order Form) to purchase a Subscription to Products and related Services from an authorized distributor, MSSP or reseller (“Partner“) of Cyolo Security Ltd. (“Cyolo“) pursuant to Cyolo’s Partner’s Order Forms referencing this Agreement and set forth the terms and conditions under which those Products and Services will be delivered. This Agreement shall govern Customer’s initial purchase as well as any future purchases made by Customer pursuant to an Order Form which reference this Agreement. This Agreement includes any and all attachments and Order Forms executed by the Customer and Cyolo’s Partner.
1. ORDERING SUBSCRIPTIONS
- Order Forms. Customer may purchase Product Subscriptions of Services from Cyolo's Partner by issuing an order form which references this Agreement (each, an “Order Form”). No Order Form shall be binding until accepted in writing by Cyolo's Partner. Customer's order details will be as stated in a purchase order placed with Cyolo by Cyolo's Partner on Customer's behalf, and Cyolo's Partner is responsible for the accuracy of any such purchase order as communicated to Cyolo.
- “Subscription” means the right of Customer to receive or access the applicable Product, and to receive end user technical support and maintenance for the Products (“Support“) during the Subscription Term.
- “Product” means the applicable products as specified on the Order Form and the relevant Client Plug-in and Add-On Software as specified on the Order Form. The term “Product” shall also include any Documentation for the Products provided to Customer under this Agreement.
- “Client Plug-in” means any client or device side application or plug-in which Cyolo makes generally publicly available without charge for interacting the Product. The term “Client Plug-in” shall also include any Documentation for the Client Plug-in and any Updates of the same Client Plug-in product provided to Customer (or the Customer’s users of the Products, “Users“) under this Agreement.
- “Documentation” means the documentation generally made available to Customer by Cyolo that accompanies the Product.
- “Updates” means generally commercially released code corrections, patches, updates, new releases, modifications or enhancements to the Product. Updates do not include separate or different products marketed by Cyolo under a different name even if such products are compatible with the Product.
- “Add-On Software” means software licensed by Customer pursuant to this Agreement and identified as Add-On Software on the applicable Order Form. Add-On Software licenses are purchased on a Subscription basis, subject to the terms of this Agreement.
- “Service” means the applicable Support (as defined below) or other services specified on the applicable Order Form.
- Subscription Term and Renewals. Unless otherwise provided by the applicable Order Form, the term of each Subscription shall be twelve (12) months commencing on the Subscription Start Date specified of the applicable Order Form (“Subscription Term”). Unless terminated earlier in accordance with Section 6, each Subscription Term will automatically renew upon expiration of the initial Subscription Term for additional successive one (1) year terms unless either party gives the other prior written notice of cancellation at least thirty (30) days prior to expiration of the then-current Subscription Term. The rates for any Subscription Term renewals shall be as mutually agreed upon between Cyolo's Partner and the Customer.
2. PRODUCTS
- Access to Products. During the Subscription Term, Customer may access and use the Products solely for its own benefit and in accordance with the terms and conditions of this Agreement, the Documentation and any additional scope of use restrictions designated on the applicable Order Form. The Product may only be directly used by the number of Users purchased by Customer who are (i) employees of Customer or (ii) any entity under the control of Customer where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity ("Affiliate"), or any third party employed by Customer to perform services on behalf of Customer ("Contractor") (in accordance with this Section 2). Use of and access to Products is permitted only by the number and types of Users specified on the applicable Order Form. Customer shall be responsible for any and all actions taken using Customer’s (including Users’) accounts and any applicable user IDs, passwords or other authentication credentials provided by Cyolo, and Customer shall immediately notify Cyolo's Partner if any User who has access to a user ID, password or other authentication credentials, is no longer permitted to access and use the Products on behalf of Customer.
- Access to Products. During the Subscription Term, Customer may access and use the Products solely for its own benefit and in accordance with the terms and conditions of this Agreement, the Documentation and any additional scope of use restrictions designated on the applicable Order Form. The Product may only be directly used by the number of Users purchased by Customer who are (i) employees of Customer or (ii) any entity under the control of Customer where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity ("Affiliate"), or any third party employed by Customer to perform services on behalf of Customer ("Contractor") (in accordance with this Section 2). Use of and access to Products is permitted only by the number and types of Users specified on the applicable Order Form. Customer shall be responsible for any and all actions taken using Customer’s (including Users’) accounts and any applicable user IDs, passwords or other authentication credentials provided by Cyolo, and Customer shall immediately notify Cyolo's Partner if any User who has access to a user ID, password or other authentication credentials, is no longer permitted to access and use the Products on behalf of Customer.
- Contractors and Affiliates. Customer may permit its independent Contractors who are not competitors of Cyolo and its Affiliates to serve as Users, provided: (i) Customer remains responsible for compliance by each such Contractor or Affiliate with all of the terms and conditions of this Agreement; and (ii) any such use of Products by such Contractor or Affiliate is for the sole benefit of Customer. Use of the Products by Affiliates, Contractors and Customer in the aggregate must be within the restrictions on the applicable Order Form, including the maximum permitted number of Users.
- General Restrictions. Customer shall not (and shall not allow any third party to): (a) rent, lease, copy, provide access to, demonstrate, or sublicense any Product to a third party; (b) use any Product, or incorporate any Product into, any product or service provided to a third party, (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to any Product, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Cyolo), (d) modify any Product or any Documentation, or create any derivative product from any of the foregoing, (e) remove or obscure any proprietary or other notices contained in any Product (including any reports or data printed from Products), (f) publicly disseminate any information regarding the performance of Products, or (g) make any representations, warranties or other commitments on Cyolo’s behalf, whether to Users or any other person or entity, concerning the Products or Services, including, without limitation, their functionality, performance, security or other features.
- Client Plug-in. In order to access the Product on certain computers and mobile devices, Users may be required to download and install a Client Plug-In. Certain Client Plug-Ins may be made available by Cyolo to Customer for direct distribution to Users and others for certain devices may only be available for download through third-party app stores. Subject to the terms and conditions of this Agreement, Cyolo hereby grants Customer a limited, revocable, non-sublicensable right during the applicable Subscription Term to distribute to its Users the most current version of the Client Plug-In provided to Customer for distribution to Users.
3. CUSTOMER DATA AND TRACKING
- General. Customer shall ensure that Customer’s use of the Products and any business information or other data of any type of the Customer and other information inputted into the Products ("Customer Data"), is at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international laws, rules, regulations and conventions, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal data. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Cyolo that Customer has sufficient rights in the Customer Data to grant the rights granted to Cyolo in this Section 3 and that the Customer Data does not infringe or misappropriate the rights of any third party.
- Rights in Customer Data. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Cyolo. Subject to the terms of this Agreement, Customer hereby grants to Cyolo a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, distribute, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Products and Services to Customer.
- Acceptable Use. Customer acknowledges and agrees that Cyolo and its suppliers have no control over any Customer Data and are not and will not be responsible or liable for any Customer Data.
- Reporting and Tracking
(a) Tracking. Customer acknowledges that certain features of the Products enable Customer to track the activity of a User who accesses or performs activities in connection with a Customer document, including without limitation the placement of time stamps, collection of IP addresses and geographic locations, and the tracking of users’ actions taken in connection with the Customer document. Customer is solely responsible for ensuring that its use of these features of the Products is permitted and is otherwise in compliance with all applicable privacy laws, rules and regulations, and for obtaining any required consents from the relevant Users.
(b) Reporting. During the Subscription Term, Customer agrees that Cyolo may create reports from time to time for the purposes of providing 1) Usage support data, and 2) User license/true up data. To create such reports, Cyolo may run a mutually approved upon reporting script, or create other report formats, that summarize usage data such as the number of discrete users of the product and such other additional information that may be required for support. Unless otherwise agreed in writing, the mutually approved script and or reporting will only include aggregated data and will not include or disclose any Customer Data.
- Indemnification by Customer. Customer shall indemnify, defend and hold harmless Cyolo and its suppliers from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to: (a) any Customer Data, (b) any action taken (or not taken) by Customer or any user based upon use of a Product, (c) any service or product offered by Customer in connection with or related to a Product, or (d) use of any Customer Trademarks (as defined below). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim from Cyolo (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; provided however, that Cyolo may participate in such proceedings at its own expense; and (iii) all reasonable necessary cooperation of Cyolo at Customer’s expense. Customer shall not enter into any settlement without Cyolo’s prior consent if the settlement requires Cyolo to admit any liability or make any payment which is not reimbursed by Customer.
4. OWNERSHIP
- Cyolo Technology. This is a subscription agreement for use of Products and not an agreement for sale. Customer acknowledges that it is obtaining only a limited right to the Products and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Cyolo or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Products, Services, Documentation, Services' deliverables, and any and all related and underlying technology and documentation and any modifications or derivative works thereof (collectively, the “Cyolo Technology”). Further, Customer acknowledges that the Product is offered as an online, hosted solution, and that Customer has no right to obtain a copy of the Cyolo Technology used to provide such service.
- Feedback. Customer may from time to time submit comments, information, questions, data, ideas, descriptions of processes, or other information to Cyolo or to Cyolo's Partner (“Feedback”). Cyolo may in connection with the Products or any of its products or services use, copy, disclose, license and distribute any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise.
- Customer Trademarks. The features of the Products may permit Customer to include Customer’s trademark(s) and logo(s) (collectively, “Customer Trademarks”) in the Products as accessed by Users. In such event, Customer hereby grants Cyolo a non-exclusive, sublicensable, worldwide license during the term of this Agreement to use, display and distribute the Customer Trademarks in connection with Customer’s use of the Products. As between Customer and Cyolo, Customer retains ownership of the Customer Trademarks and all use thereof will inure solely for the benefit of Customer.
5. FEES AND PAYMENT
- Fees and Payment. Cyolo's Partner will invoice the Customer for the fees set forth on the applicable Order From, as agreed between the Customer and Cyolo's Partner, and Customer shall pay the fees within the agreed period as set forth on such Order Form or as agreed between the Customer and Cyolo's Partner.
- True-Up. If any of the monthly reports demonstrate that the cumulative number of unique individual users accessing the Product exceeds the number of Users licensed by Customer by a number greater than or equal to five percent (5%), then Cyolo's Partner shall invoice Customer for the additional Users (at Cyolo’s Partner's then current User rates) for a Subscription Term to begin in the month during which the User commenced using the Product and expiring at the next annual anniversary. For purposes of clarification, if the monthly reports demonstrate that certain of Customer’s Users had previously discontinued using the Software for at least 90 days (e.g. their email address is no longer in the system), then Customer may assign these previously assigned licenses to another Users at no additional charge.
6. TERM AND TERMINATION
- Term. This Agreement is effective as of the Effective Date (as defined in the initial Order Form) and expires on the date of expiration or termination of all Subscription Terms or Order Forms.
- Suspension of Service. If Cyolo does not receive the corresponding payment from Cyolo's Partner, in addition to any of its other rights or remedies, Cyolo reserves the right to suspend Customer’s access to the applicable Products (and any related Services) without liability to Customer until such amounts are paid in full.
- Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice (provided however, that Customer will not file any such notice until after the expiration of the fifteen (15) day Dispute resolution period specified in Section 12; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter).
- Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to Products (including any and all related Cyolo Technology) and delete (or, at Cyolo’s or Cyolo's Partner request, return) any and all copies of the Documentation, and any other Cyolo Confidential Information in its possession. Customer acknowledges that following termination it shall have no further access to any Customer Data input into the Products, and that Cyolo may delete any Customer Data as may have been stored by Cyolo at any time. Except as otherwise expressly stated in this Agreement, termination of this Agreement is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
- Survival. The following Sections shall survive any expiration or termination of this Agreement: 2 (General Restrictions), 2 (Client Plug-in) (last sentence only), 3 (General), 3 (Acceptable Use), 3 (Reporting and Tracking), 3 (Indemnification by Customer), 4 (Ownership), 5 (Fees and Payment), 6 (Term and Termination), 7 (Warranty Disclaimer), 8 (Update Disclaimer), 9 (Limitation of Remedies and Damages), 10 (Indemnification), 11 (Confidential Information), and 12 (General Terms).
7. LIMITED WARRANTY AND DISCLAIMER
- Limited Warranty. Cyolo warrants that, for Customer’s benefit only, during the Subscription Term (the “Warranty Period”) and on condition that Customer has complied with its obligations under Section 8 (with respect to Updates), the Products will operate in substantial conformity with the applicable Documentation. Cyolo's sole liability (and Customer’s sole and exclusive remedy) for any breach of the foregoing warranty shall be, at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the reported non-conformity, or if Cyolo determines such remedies to be impracticable within a reasonable period of time, Cyolo will allow Customer to terminate the Subscription for the affected Product. The limited warranty set forth in this Section shall not apply: (i) unless Customer makes a claim within the Warranty Period, (ii) if the error was caused by misuse, unauthorized modifications or third party hardware, software or services used by Customer, or (iii) to use provided on a no-charge or evaluation basis.
- Warranty Disclaimer EXCEPT FOR THE LIMITED WARRANTY IN THIS SECTION 7, ALL PRODUCTS AND SERVICES ARE PROVIDED “AS IS”. CYOLO DOES NOT WARRANT THAT CUSTOMER’S USE OF THE PRODUCTS OR SERVICES WILL BE SECURE, UNINTERRUPTED, ERROR-FREE, OR THAT THE PRODUCTS WILL SUCCESSFULLY INTEROPERATE WITH ANY PRODUCT, SERVICE OR TECHNOLOGY USED BY CUSTOMER IN CONNECTION WITH THE PRODUCTS. CUSTOMER ACKNOWLEDGES THAT ALL SECURITY SOLUTIONS HAVE INHERENT LIMITATIONS AND THAT CYOLO WILL NOT BE LIABLE FOR ANY FAILURE OF SECURITY OR ENCRYPTION MEASURES OR FOR ANY UNAUTHORIZED INTERCEPTION, ACCESS, RECEIPT OR USE OF ANY CUSTOMER DATA. CYOLO SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, DATA LOSS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF CYOLO. NEITHER CYOLO NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR RELATING TO THE CAPABILITY OF THE PRODUCTS TO SECURE CUSTOMER DATA, OR OTHERWISE RELATING TO THE PRODUCTS, SERVICES OR CUSTOMER DATA. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MINIMUM WARRANTY PERIOD REQUIRED.
8. SUPPORT
- Generally. During the applicable Subscription Term, Cyolo's Partner shall provide Support to Users in accordance with the Support terms agreed upon between Customer and Cyolo's Partner, and if necessary, Cyolo's representatives will be involved.
- Customer Obligations. Customer will provide all information and access to Customer resources as Cyolo or Cyolo's Partner reasonably requires to provide technical support, including Customer personnel, access to the Products and access to any system or device running the Client Plug-Ins. Cyolo and Cyolo's Partner shall be excused from any non-performance of their obligations hereunder to the extent any such non-performance is attributable to Customer’s failure to perform its obligations.
- Software Updates
(a) Updates to the Product. On a regular basis, Cyolo releases Updates to the Product. Cyolo or Cyolo’s Partner will notify Customer (Customer to provide a contact person) when such Updates become generally available for installation by Cyolo.
(b) Updates to Client Plug-In. From time-to-time, Cyolo will make Updates available for the Client Plug-In. Cyolo or Cyolo’s Partner will notify Customer (Customer to provide a contact person) when such Client Plug-In Updates become generally available by Cyolo.
(c) Update Disclaimer. A FAILURE BY USERS TO INSTALL CLIENT PLUG-IN UPDATES, MAY CAUSE THE SOFTWARE TO SUFFER DEGRADED FUNCTIONALITY, FAIL TO PERFORM IN ACCORDANCE WITH THE DOCUMENTATION, OR CEASE WORKING ALTOGETHER. CYOLO WILL NOT BE RESPONSIBLE FOR ANY SUCH RESULTING OR CONSEQUENTIAL EFFECTS, LOSSES OR DAMAGES AND SUCH EFFECTS WILL NOT CONSTITUTE BREACH OF THIS AGREEMENT OR GRANT CUSTOMER ANY RIGHT TO TERMINATE THIS AGREEMENT. There is no set schedule for the provision of Updates.
(d) Support and maintenance are provided for the current release of the Product and the immediately prior sequential release for a period of one (1) month from the date of the current release. Customer is responsible for ensuring that it: (a) enables Cyolo to provide Updates to the Products as set forth in this Section 8 (Updates to the Products); and (b) distributes Updates to the Client Plug-In to Users as set forth in this Section 8 (Client Plug-In Updates). CUSTOMER ACKNOWLEDGES THAT PLATFORMS RELATED TO THE CLIENT PLUG-IN ARE CONSTANTLY SUBJECT TO UPDATES BY THE MANUFACTURER AND CUSTOMER WILL BE OBLIGATED TO UPGRADE ITS DEVICES TO MAINTAIN COMPATIBILITY WITH THE CLIENT PLUG-IN AND SOFTWARE. CUSTOMER’S failure to permit Cyolo to install updates to the PRODUCTS OR FAILURE BY USERS to install client plug-in UPDATES MADE AVAILABLE BY CYOLO OR THROUGH AN APP STORE MAY CAUSE the Product TO suffer degraded functionality, fail to perform in accordance with the Documentation OR CEASE WORKING ALTOGETHER. Cyolo or Cyolo’s partner will not be responsible for any SUCH resulting or consequential effects, losses or damages and such effects will not constitute breach of this agreement or grant customer any right to terminate this agreement.
- Exclusions. Neither Cyolo nor Cyolo's Partner shall have support obligations or obligation or liability relating to Errors or other issues in connection with the Product arising from: (i) Customer’s equipment, software, network connections or other infrastructure; (ii) use of the Product by Customer in a manner not consistent with the Documentation; (iii) modifications to the Product by any party other than Cyolo; (iv) any other act or omission by Customer or its employees or agents; (v) third party acts, omissions or systems which impact the Product; or (vi) general Internet problems, force majeure, natural disasters, emergencies, acts of terror or war, or other factors outside of Cyolo’s control.
9. LIMITATION OF REMEDIES AND DAMAGES
NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST or INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, exemplary OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, Cyolo AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CYOLO’S PARTNER TO CYOLO DURING THE PRIOR TWELVE (12) MONTHS IN CONNECTION WITH THIS AGREEMENT.
THIS SECTION 9 SHALL NOT APPLY TO CUSTOMER WITH RESPECT TO ANY CLAIM ARISING UNDER THE SECTIONS TITLED “PRODUCTS,” “CLIENT PLUG-IN”, “CUSTOMER DATA AND TRACKING”, “CYOLO TECHNOLOGY”, “FEEDBACK” OR “CONFIDENTIAL INFORMATION”.
The parties agree that the limitations specified in this Section 9 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
10. INDEMNIFICATION
Subject to the terms of this Section 10, Cyolo shall defend Customer from and against any claim of infringement of a patent, copyright, or trademark issued in the United States that is asserted against Customer by a third party based upon Customer’s use of Products in accordance with the terms of this Agreement, provided that Cyolo shall have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for Cyolo to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of any Product is, or in Cyolo’s opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Cyolo may, in its sole discretion: (a) substitute substantially functionally similar products or services for the affected Product; (b) procure for Customer the right to continue using the affected Product; or if (a) and (b) are commercially impracticable, (c) terminate the license to use the affected Product, or if deemed necessary by Cyolo, terminate this Agreement, and refund to Customer the fees paid by Customer for the affected Product(s) for the portion of the Subscription Term which was paid by Customer but not rendered by Cyolo. The foregoing indemnification obligation of Cyolo shall not apply: (1) if a Product is modified by any party other than Cyolo, but solely to the extent the alleged infringement is caused by such modification; (2) if a Product is combined with other non-Cyolo products or processes not authorized by Cyolo, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Products; (4) to any unsupported release of the Products; or (5) any action arising as a result of Customer Data or any third party deliverables or components contained within Products.
THIS SECTION 10 SETS FORTH CYOLO’s AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
11. CONFIDENTIAL INFORMATION
Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Cyolo Technology provided by Cyolo or Cyolo’s Partner (or their agents), performance information relating to the Products, and the terms and conditions of this Agreement shall be deemed Confidential Information of Cyolo without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s non-disclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
12. GENERAL TERMS
- Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that Cyolo may assign this Agreement without Customer’s consent to an Affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void.
- Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
- Governing Law; Dispute Resolution. This Agreement shall be governed by the laws of Israel, without regard to conflicts of laws provisions thereof. The parties will use best efforts to settle promptly and amicably, by mutual discussion, any disputes, differences or claims (each a “Dispute”) related to this Agreement. If they are not able to successfully do so within fifteen (15) days of their initial discussion or correspondence regarding the Dispute, either party may file a claim in accordance with this Section. The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the of the competent courts located in in Tel-Aviv, Israel and both parties hereby submit to the personal jurisdiction of such courts.
- Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
- Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if sent by email, upon dispatch with receipt thereof confirmed in writing.
- Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that Products are on-line, subscription-based products, and that in order to provide improved customer experience Cyolo may make changes to Products, and Cyolo will update the Documentation accordingly.
- Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
- Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
- Aggregate Information. Cyolo may collect information regarding Customer’s (including Users’) use of the Products and Services and may use and disclose such information in aggregate or other anonymized form in connection with Cyolo’s support, development, marketing and other business activities; Cyolo will not associate any of such information with Customer.
- Subcontractors. Cyolo may use the services of subcontractors in connection with the performance of its obligations under this Agreement.
- Third-Party Code. The Products may contain or be provided with third-party software components that are subject to the terms and conditions of the applicable third party software licenses (“Third-Party Software”). Third-Party Software may include open source components. Third-Party Software may be identified in the Documentation, or Cyolo shall provide a list of the Third-Party Software for a particular version of the Software to Customer upon Customer’s written request. To the extent required by the license that accompanies the Third-Party Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Third-Party Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering. Customer agrees to comply with all applicable Third-Party Software terms and conditions.
- The trademark, service mark, trade dress, name, or other indicia of origin (“mark”) that is claimed to be infringed, including registration number.
- The jurisdiction or geographical area to which the mark applies.
- The name, post office address and telephone number of the owner of the mark identified above.
- The goods and/or services covered by or offered under the mark identified above.
- The date of first use of the mark by the owner identified above.
- The date of first use in interstate commerce of the mark by the owner identified above.
- A description of the manner in which the Complaining Party believes its mark is being infringed upon.
- Sufficient evidence that the owner of the mark that is claimed to be infringing is a Cofense customer, if applicable.
- The precise location of the infringing mark, including electronic mail address, etc.
- A statement that the Complaining Party has a good faith belief that use of the mark in the manner complained of is not authorized by the trademark owner, its agent, or the law; and
- A good faith certification, signed under penalty of perjury, stating that the Complaining Party is the owner, or is authorized to act on behalf of the owner, of the mark alleged to be infringed and that the information included in the notice is accurate.
