TERMS AND CONDITIONS
Terms and conditions
Thank you for your interest in obtaining access to the software and software-related products and services of Centraleyes Ltd. (“Company”). These terms and conditions govern the access and use of certain of Company’s software programs and applications (each, a “Platform”) by you and the company that you represent (collectively, “Customer”). These terms are in addition to those set forth on the sales quotation, order, or other purchasing documents under which Customer purchased the right to access and use the Platform (collectively, an “Order”). By accepting these terms, either by (i) clicking a box indicating Customer acceptance, (ii) executing or otherwise accepting an Order that references and incorporates these terms, or (iii) accessing or using the Platform, Customer agrees to the terms and conditions contained herein (such terms and conditions, together the terms and conditions of any Order, the “Agreement”).
1.SUBSCRIPTION; SAAS SERVICES, SUPPORT
1.1 Subject to the terms and conditions herein, Company hereby grants Customer a non-exclusive, non-transferable, revocable (as provided herein) subscription to access and use the Platform. Company reserves the right to change features of the Platform, provided that any such changes will not materially degrade the functionality of the Platform. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services, including reasonable technical support services, in accordance with the Support Services and Service Level Terms as can be found at https://www.centraleyes.com/support-services-and-service-level/. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account (the “Administrator”). The Administrator may create additional user names and passwords for use by any of the Customer’s employees, representatives or vendors, provided that: (i) each person obtaining a user name will be obligated to execute the Company’s standard End User Service Agreement (“EUSA”) which can be found at https://www.centraleyes.com/end-user-subscription-agreement/; and (ii) all user names created in connection to the Administrator’s account will be subject to this Agreement and Customer will retain full liability therefor in accordance with the provisions hereof.
2.RESTRICTIONS AND RESPONSIBILITIES
1.1 Customer will not, directly or indirectly, nor allow any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Platform or the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company in writing or authorized within the Services); transfer, assign, export, sublicense or otherwise use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
1.2 Customer represents, covenants, and warrants that Customer will use the Platform and the Services only in compliance with Company’s standard published policies and instructions then in effect, and Customer shall ensure that the use of the SaaS Platform by Customer does not violate any applicable law, rule, or regulations including any export controls relating to the SaaS Platform and other goods and services. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services other than as instructed by the Company. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so to monitor and verify compliance with this Agreement, and may prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing.
1.3 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer is solely responsible for the selection and design of Customer’s business controls and information technology systems and the implementation of those controls and systems within Customer’s organization, including as it relates to the access and use of the Platform, the Services and the security of the Equipment and Customer Data (as defined below), including but not limited to administrative and user passwords (for all uses of Customer account) and files transmitted in connection with Customer’s use of the Platform and Services (these controls also include any procedures necessary to safeguard the integrity and security of Customer Data from access by unauthorized personnel).
3.CONFIDENTIALITY; PROPRIETARY RIGHTS
1.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service, as well as Software relating to the Platform. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services or otherwise input onto the Platform (“Customer Data”, which may include personally identifiable information, including but not limited to usernames, passwords and contact information). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third party any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. The provisions of this Section 3.1 will survive termination of this Agreement indefinitely.
1.2 Customer acknowledges that ownership of and title in and to all intellectual property rights, including patent, trademark, service mark, copyright, and trade secret rights, in and to the Platform and the Services including any related customizations and/or derivatives thereof, including any program or other application that is designed to integrate, customize and be used with or in combination with the Platform, whether developed independently by Company or jointly with Customer or by Customer (collectively “Company IP”), are and shall remain exclusively with Company and/or its affiliates, as the case may be. Unless otherwise set forth in this Agreement, the applicable Order Form or SOW, Customer does not acquire any interest, right, or title in or to any work product associated with the Services or the Platform. Customer agrees to assign and hereby assigns all of its right, title and interest in and to any Company IP to Company or any of its subsidiaries/affiliates (as determined in Company’s discretion) and further agrees to perform and have performed all acts, and sign all documents in order to enable Company or any of its designees to perfect its ownership interest in and to the Company IP. For the avoidance of doubt, Company IP shall include: (a) the Services and Software, all improvements, enhancements or modifications thereto (even if such may result from any suggestions or feedback received from Customer), (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
1.3 Customer hereby confirms that it owns all rights in and to Customer Data, or otherwise has (and will continue to have) all power, title, licenses, consents and authority, in and to the Customer Data, as necessary to legally transfer and/or provide access to such data to Company and that each of its employees, agents or representatives that are provided a user name is authorized to input Customer Data into the Platform. Customer hereby acknowledges that Company and/or its affiliates, employees, service providers and agents will have access to and may process, import, copy, use or license the Customer Data for the purpose of providing the Services or in any manner necessary in the context of Customer’s use of the Platform. Customer further acknowledges that the Customer Data may be transferred to third parties (which may be located in a different country than Customer or Company) for the purposes of facilitating, providing, developing, enhancing, analyzing, hosting, maintaining or servicing the Platform or the Services. Notwithstanding, Company will remove any Customer Data from its internal systems within 21 days of Customer’s written request, unless such data has been anonymized or is otherwise not traceable to Customer.
1.4 Customer shall retain ownership of all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data which is created for and provided to Customer as part of the Services.
1.5 Notwithstanding anything to the contrary in the foregoing, Company shall have the right (and to the extent necessary, Customer hereby grants Company non-exclusive, royalty free, worldwide license without restriction) to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Platform and the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified or anonymized form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
During the Term, Company shall have the right and Customer hereby grants Company a revocable, non-transferable, royalty-free license to use and display Customer’s logos and trade names for marketing and promotional purposes in connection with Company’s website and marketing materials.
4.PAYMENT OF FEES
1.1 Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement or any SOW), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Subscription Term or then‑current Renewal Term (if any), upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 30 days after the closing date on the first billing statement in which the error or problem appeared, in order to request an adjustment or credit. Inquiries should be directed to Company’s customer support department. Company will evaluate the request and provide Customer with a prompt response.
1.2 Company will issue an invoice for each payment, and full payment for each invoice issued must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is greater, plus all expenses of collection (which may include attorneys’ fees) and may result in immediate termination of the Service. Customer shall be responsible for all taxes associated with Services other than taxes based on Company’s net income.
5.TERM AND TERMINATION
1.1 Subject to earlier termination as provided below, this Agreement is for the Initial Subscription Term and for any Renewal Term as specified in the Order Form or as otherwise agreed between the Parties in writing (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
1.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ advance written notice (or with 14 days’ advance written notice by the Company in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Except in cases of a material breach by Company, Customer will pay in full for the Services up to and including the last day of the then-current Term. The Parties agree that this is a fair allocation of risk in light of the fees and charges specified in the applicable Order Form. Upon any termination, (i) Customer will immediately cease all use of the Platform; and (ii) Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter, subject to Section 3.5, Company may, but is not obligated to, delete stored Customer Data (unless Customer specifically requests the deletion of stored Customer Data through which Customer remains identifiable). All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, proprietary rights, warranty disclaimers, and limitations of liability.
1.3 Notwithstanding anything to the contrary in this Agreement, except for Customer’s obligations to pay amounts due under this Agreement, neither Party will be deemed to be in default of any provision of this Agreement for any delay, error, failure, or interruption of performance due to any act of God, terrorism, war, insurrection, riot, boycott, strike, or other labor or civil disturbance, government ordered moratorium, interruption of power, communications or internet services, epidemic, pandemic, act of any other person not under the control of such Party, or other similar cause. The Party subject to any of the foregoing events shall give the other Party reasonable written notification of any resulting material or indefinite delay.
6.WARRANTY AND DISCLAIMER
1.1 Company warrants that to its knowledge, the Platform does not infringe on any intellectual property rights of third parties and that, for a period of 180 calendar days after access is provided to the Platform (the “Warranty Period”), the Platform will perform substantially in accordance with the specifications set forth in the then-current documentation (the “Platform Warranty”). In the event of a non-conformance of the Platform occurring and reported to Company within the Warranty Period, Company will, at its election, as the exclusive remedy for any breach of the Platform Warranty, either (i) correct such error in accordance with the processes and procedures set forth in Schedule B; or (ii) refund the Customer all Subscription Fees or Renewal Fees paid to Company within the previous 12 months. NOTWITHSTANDING, THE PLATFORM WARRANTY EXCLUDES, AND COMPANY SHALL HAVE NO OBLIGATION TO REMEDY, ANY PLATFORM DEFECTS CAUSED OR MATERIALLY CONTRIBUTED TO BY: (i) ALTERATION, REPAIR OR MODIFICATION OF THE PLATFORM BY ANY PERSON OR ENTITY OTHER THAN COMPANY WITHOUT COMPANY’S PRIOR WRITTEN CONSENT; (ii) CUSTOMER’S IMPROPER STORAGE, MISHANDLING, ABUSE, OR MISUSE OF THE PLATFORM; (iii) CUSTOMER’S USE OF THE PLATFORM WITH EQUIPMENT OTHER THAN ANY HARDWARE SPECIFIED BY COMPANY; AND/OR (iv) DAMAGE BY FIRE, EXPLOSION, POWER FAILURE, OR ANY OTHER ACT OF GOD OR NATURE, AND ANY SUCH REPAIRS WILL BE SUBJECT TO COMPANY’S PROFESSIONAL SERVICE FEES AT ITS THEN-CURRENT HOURLY RATES.
1.2 Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted, VIRUS FREE or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
1.3 The Platform and Services do not replace the need for the Customer purchasing and installing its own cyber protection and cyber technology; rather it is an advisory service providing suggestions on how to manage cyber risk, allowing Customer to understand certain cyber risks and vulnerabilities. Company is not responsible for incorrect cyber stature scoring which may result from incorrect, corrupt or false data or from an administrator’s incorrect use of, override and/or assignment of the questionnaires.
Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement of such claim; Company will not be responsible for any settlement it does not approve in writing in advance. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company; (ii) made in whole or in part in accordance with Customer specifications; (iii) that are modified after delivery by Company; (iv) combined with other products, processes or materials where the alleged infringement relates to such combination; (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (except as provided in subsections (i) through (vi) above): (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality; (b) obtain for Customer a license to continue using the Service; or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a prorated refund of any prepaid, unused Subscription Fees. This Section 7 sets forth the exclusive remedy of Customer with respect to any claims of infringement or misappropriation.
8.LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, INDEMNITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA, DATA SECURITY BREACHES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR PROFIT OR LOSS OF PRIVACY; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS INCLUDING CLAIMS ASSOCIATED WITH ANY EUSA EXECUTED IN RELATION TO THIS AGREEMENT, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Each Party acknowledges and agrees that the warranty disclaimers and liability and remedy limitations in this Agreement and any EUSA are material, bargained for provisions of this Agreement and any EUSA, and that fees and consideration payable hereunder reflects these disclaimers and limitations.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. 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, communications and other understandings relating to the subject matter of this Agreement. All waivers, amendments and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; or upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Israel without regard to its conflict of laws provisions, as though this Agreement was entered into and was to be entirely performed within the State of Israel and all claims or disputes shall be heard in the appropriate courts in the borough of Tel Aviv, Israel. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HEREBY WAIVES ITS RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR CLAIM ARISING OUT OF THIS AGREEMENT. This Agreement may be executed in counterparts (including via scanned .pdf), each of which shall be deemed an original, but all of which together shall be deemed to be one and the same instrument.