1. Definitions.

“Customer Data” means the data inputted by the Customer by using the Services and the output and results derived from use of the Services.  

“Documentation” means all written information made generally available by Vendor to its customers on the use of the Services, whether in hard copy or in any electronic or other media.

“Malicious Code” means software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system.

“Services” means the online services provided by Vendor to the Customer under this Agreement via any website and/or application designated as such in the Documentation or in this Agreement as more fully described in the Order, including any associated offline components.

“Software” means any software (including any utility, application program interface or tools) provided by Vendor to the Customer in connection with the Services, whether or not such software is locally installed on the Customer’s systems or accessed by the Customer online or by any remote means.

“Users” means employees, agents and independent contractors of the Customer who are authorized by the Customer to use the Services and for whom subscriptions to a Service has been purchased.

2. Services. 

1. a) Vendor hereby grants to the Customer a non-exclusive, non-transferable right to permit the Users to use the Services and the Software during the Term solely for Customer’s own internal use.

1. b) Customer acknowledges that Vendor engages Amazon Web Services and\or Heroku Cloud Application Platform, and may alternately engage other reputable providers of hosting services, for the Services, including the storage of Customer Data (“Hosting Services”). In addition Customer acknowledges that the Services and Software may include components used pursuant to licenses obtained by Vendor (“Third Party Licenses”). Notwithstanding anything to the contrary in this Agreement, Customer acknowledges and confirms: (i) that the Hosting Services and/or Third Party Licenses are provided pursuant to the general terms of use of such provider of Hosting Services and licensors, (ii) Vendor cannot make warranties for the Hosting Services and Third Party Licenses, (iii) Vendor is not obligated to impose the terms under this Agreement on a provider of Hosting Services or any licensor of Third Party Licenses, and (iv) Vendor shall have no liability whatsoever in respect of the Hosting Services, Third Party Licenses and their respective providers and licensors.

3. User Subscription. The Customer undertakes that the Services and the Software will be accessed by no more than the specified number of Users, as specified in the Order. Additional User subscriptions may be added during the Term at such pricing as shall be agreed between the parties in writing.  

4. Customer Data.  

1. a) Customer acknowledges that in order to allow Vendor to provide the Services, Customer shall be required to provide Vendor with the Customer Data. Vendor does not own any Customer Data that Customer will submit to Vendor or that Vendor may store in the course of providing the Services (as further detailed in Section 11 below).

1. b) Vendor will not (1) share, publish, post, sell or otherwise transfer the Customer Data to any third party, and (2) sell, rent or lease any personally identifiable information included therein to third parties, in each case without receiving Customer prior explicit consent, except in any of the following instances:

1. i) To operate the Services, including storing and processing Customer Data through third party hosting services;

1. ii) If Vendor believes that Customer has breached this Agreement, abused its rights to access or use the Services or performed any act or omission that Vendor believes to be violating any applicable law, rules, or regulations, Vendor may share Customer Data with law enforcement agencies and other competent authorities as well as with other third parties, as may be required;

iii) If Vendor is required by applicable law, rules or regulations to do so; 

1. iv) To utilize Customer Data to anonymously aggregate, publish or otherwise make known performance benchmarks or other data metrics about the use of the Services; or 

1. v) If Vendor organizes the operation of the Services within a different framework, or through another legal structure or entity, or if Vendor is acquired by, or merged with another entity, provided however, that those entities agree to be bound by the provisions of this Agreement, with respective changes taken into consideration;

1. c) Customer and its employees and contractors shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Vendor shall neither be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data nor will it be responsible to receive the approval, right or consent of any third party (including any person whose image or personal identifiable information is included in the Customer Data. Customer alone shall be responsible to obtain any such approval, right and consent. 

1. d) Vendor has no obligation to retain any Customer Data provided to Vendor, except as necessary for the provision of the Services and for a period not to exceed the retention period set forth in the Order, and if not set forth in the Order – for one (1) month. The aggregate amount of data storage at any time is limited to the amount specified in the Order, and if not set forth in the Order – [100]GB. Unless otherwise agreed between the parties in writing, such Customer Data may be permanently deleted or destroyed by Vendor upon expiration of the above retention period or upon the Customer Data exceeding the maximum amount, in each case without liability and without the need to give prior notice to Customer.

5. Customer Responsibilities.

1. a) Customer shall designate a contact person to be the primary interface with Vendor. The initial contact person is listed in the Order. Customer may replace the contact person by written notice to Vendor. The contact person shall initiate all requests for support (if applicable). The contact person must be trained, qualified and authorized to communicate all necessary information, perform diagnostic testing under the direction of the Vendor service representative and be present at the location during the performance of any support services if required (if any are offered by Vendor).

1. b) Customer shall not: (i) access, store, distribute, or transmit during the course of its use of the Services any Malicious Code or unlawful, threatening, obscene or infringing material; (ii) make the Services available to anyone other than the Users; (iii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human perceivable form all or any part of the Software; (iv) access the Services in order to build a product or service which competes with the Services; and (v) attempt to obtain, or assist third parties in obtaining, access to the Services other than as provided for in this Agreement. 

1. c) The Customer shall use all reasonable efforts to prevent any unauthorized access to, or use of, the Services, and shall notify Vendor of any such access or use. 

1. d) The Customer shall ensure that the Users comply with the terms of this Agreement and shall be solely responsible for any breach of this Agreement by any User.

6. Vendor Responsibilities.

Vendor shall, during the Term and subject to the terms of this Agreement, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement. 

7. Term and Termination. 

1. a) This Agreement shall, unless otherwise terminated in accordance with this Agreement, have a term set forth in the Order (“Term“). 

1. b) A party may terminate this Agreement for cause (i) if the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach, or (ii) if the other party becomes the subject of an order, resolution, petition or any other proceeding relating to insolvency, liquidation, arrangement with creditors or the appointment of a receiver or administrator or any analogous proceedings in any jurisdiction. In the event Vendor terminates this Agreement for cause under this Section 7(b), Customer shall not be entitled to any refund of the fees paid by it hereunder. 

1. c) Vendor may terminate this Agreement at any time, for convenience, by providing Customer with a 30-day prior written notice, provided that in such case Vendor shall provide Customer with a refund of a pro-rata amount of the fees paid by Customer with respect to the Term, as proportionate to the period remaining from the date of termination to the end of the Term.

1. d) Upon termination of this Agreement: (i) all licenses granted under this Agreement shall immediately terminate; (ii) the Customer shall delete any component of the Software installed on any of its devices (if any); and (iii) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced. Among others, the provisions of Sections 4, 5(b), 7 and 10 – 15 shall survive the expiration or termination of this Agreement for any reason.  

8. Pricing.  The Customer shall pay the fees listed in the Order. 

9. Payment and Taxes.  Vendor shall invoice the Customer on the Effective Date. The invoice shall be paid within thirty (30) days of date of invoice, without any deduction, withholding or set-off; and payment shall be sent to the address specified by Vendor. Vendor shall not be obligated to perform any of the Services purchased herein prior to the actual payment of the fees. Any delay in the payment of the invoice shall be result in a late charge of 1.5% per month on the unpaid balance or the maximum rate allowed by law, whichever is less. If Vendor has not received payment within 30 days after the due date, Vendor may, without prejudice to any other rights and remedies, disable the Customer’s account and access to all or party of the Services and Vendor shall be under no obligation to provide any Services until such amounts are paid in full. Unless otherwise stated, the fees do not include taxes, such as value-added tax, sales tax or withholding tax. 

10. Proprietary Rights. 

1. a) All rights, title and interest in the intellectual property rights (including all copyrights, patents, trademarks and trade secrets) in the Services and the Software, including the methods by which the Services are performed and the processes that make up the Services and the Software belong solely and exclusively to Vendor. Any improvement, change, addition, update and repair that will be developed or implemented in the Services, whether by the Vendor or by the Customer or anyone on its behalf, together or separately, including due to the use under this Agreement, due the use of the Services and/or due to receiving feedback from the Customer, the coaches or any other person on their behalf (“Developments”), will belong solely and exclusively to Vendor, and the Customer will have no claim or claim in connection with the Developments, including and demand for any monetary consideration for the Developments. Except as expressly stated in this Agreement, Customer is not granted any rights in any of the above. Subject to above, Customer owns all rights, title and interest in and to all of the Customer Data.

1. b) The trademarks, service marks and logos used and displayed on the Services and/or Software are registered and unregistered trademarks and service marks of Vendor, its affiliates and others. All other registered and unregistered trademarks used on the Services and/or Software are the property of their respective owners. Except as provided herein, Customer is not granted, expressly or by implication, estoppel or otherwise, any license or right to use any Vendor’s trademark, service mark or logo used or displayed on the Services and/or Software without the prior express written permission of Vendor. When used with Vendor’s permission, all trademarks must be identified as trademarks of Vendor using the appropriate symbol (e .g., ™ or ®) at the first occurrence in the text of any published printed or electronic communications.

11. Confidentiality; Privacy and Security. 
12. a) Each party (the “Receiving Party“) may have access to Confidential Information of the other party (the “Disclosing Party“). For the purpose of this Agreement “Confidential Information” means nonpublic information of the Disclosing Party that is designated as confidential or that, given the nature of the information, should reasonably be understood to be confidential, including, in the case of the Customer, any Customer Data. Confidential Information shall not include any information that: (i) is or becomes public knowledge without breach of this Agreement; (ii) was known to the Receiving Party at the date in which it was disclosed; (iii)  is received from a third party without any breach of an obligation to the Disclosing Party; or (iv) was independently developed by the Receiving Party.  The Receiving Party may not share Confidential Information with third parties unless such disclosure is to the Receiving Party’s employees, agents, officers and subcontractors on a need-to-know basis and so long as such person has agreed in writing to treat such Confidential Information under terms at least as restrictive as those in this Agreement. Each party agrees to use the same degree of care that it uses to protect the confidentiality of its own confidential information, but in any event not less than commercially reasonable standard of care to maintain confidentiality. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is required to be disclosed by law, including if it is required to be disclosed by an order of a court or a regulatory or administrative body. In such case, to the extent it is legally permitted to do so, the Receiving Party will give notice to the Disclosing Party before disclosing such Confidential Information. It is agreed that this Agreement and the terms and conditions thereof shall be Confidential Information of Vendor.

1. b) Vendor and third parties on its behalf implement information security tools and procedures to secure the Customer Data. These tools include protection such as encryption for communication and user authentication to prevent unauthorized user access or other malicious activities. In addition, Vendor limits access to its databases, keeping a clear separation between the off-line servers where Customer Data is analyzed, and the on-line, on-demand servers where processed impact analysis results are stored. While such tools and procedures reduce the risk of security breaches, they do not provide absolute security, and Vendor cannot guarantee that the Services will be immune from any unlawful interceptions or unauthorized access.

1. c) Vendor stores and processes the Customer Data through a third party hosting service in the USA, Europe, Australia and other places. Customer shall notify Vendor in advance where it would like Vendor to store and process the Customer Data.  If Customer is located in the European Economic Area, or in any other jurisdiction that regulates the transfer of personal information outside that jurisdiction, then Customer hereby grants Vendor its explicit and unambiguous consent to transfer any personal information contained in the Customer Data to the USA or Europe, for the purposes described in the Privacy Policy (as defined below).

1. d) In addition, information submitted by Customer when accessing the Services shall at all times be subject to Vendor’s [Privacy & Security Policy] which Vendor reserves the right to modify in its discretion from time to time.
2. Indemnity.

The Customer shall defend and indemnify Vendor, its officers, directors and employees against any claim (i) resulting from the breach of this Agreement by Customer or anyone on its behalf; or (ii) relating to the Customer Data, including any claim that the Customer Data or the Customer’s use of the Services infringes or misappropriates a third party’s patent, copyright, trade secret or other intellectual property rights or violates any applicable law.

13. Disclaimer of Warranties. THE SERVICES AND THE SOFTWARE ARE PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS IN RELATION TO THE SERVICE OR THE SOFTWARE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY VENDOR (INCLUDING ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS OR ASSIGNEES) AND ITS LICENSORS. WITHOUT DEROGATING FROM THE AFORESAID, VENDOR AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES, OR THE SOFTWARE. VENDOR (INCLUDING ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS OR ASSIGNEES) AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES OR THE SOFTWARE WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICES AND THE SOFTWARE AND/OR THEIR QUALITY WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY CONTENT RESULTING FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (D) ERRORS OR DEFECTS WILL BE CORRECTED, OR (E) THE SERVICES, THE SOFTWARE OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF MALICIOUS CODE OR OTHER HARMFUL COMPONENTS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. VENDOR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. IT IS EXPLICITLY ACKNOWLEDGED AND CONFIRMED THAT VENDOR MAKES NO WARRANT OF ANY KIND AND ACCEPTS NO LIABILITY WITH RESPECT TO THE HOSTING SERVICES AND THE THIRD PARTY LICENSES.
14. Limitation of Liability. In no event shall Vendor’s aggregate liability arising out of or related to this Agreement, whether in contract, tort or under any other theory of liability, exceed the total amount payable by the Customer in the 12 months preceding the event that gave rise to the claim. To the maximum extent permitted by law, in no event shall Vendor be liable for indirect, punitive, special, or consequential damages or for loss of profits or savings, loss of goodwill or loss or corruption of data, whether or not such party has been advised of the possibility of such damages. 
15. General.
16. a) Assignment.  The Customer may not assign its rights and obligations under this Agreement without the prior written consent of Vendor. Vendor may freely assign its rights and obligations under this Agreement.
17. b) Waiver. The failure or delay of either party to insist in any one or more instances upon performance of any of the terms, covenants or conditions of this Agreement or to exercise any right, power or privilege under this Agreement, shall not operate or be construed as a relinquishing of future performance under this Agreement or as a waiver of any of the same or similar rights, powers or privileges in the future, and the obligation of the other party with respect to such future rights or performance shall continue in full force and effect as if such failure or delay never occurred.

1. c) Notices. All notices and correspondence under this Agreement shall be in writing and shall be delivered by personal service, email, express courier, or certified mail, return receipt requested, to the addresses set forth in the Order, or at such different address as may be designated by such party by written notice to the other party from time to time.  All notices shall be deemed received and effective upon receipt if delivered personally or sent by express courier or email, and seven (7) days after mailing if sent by certified mail.
2. D) Severability. If any provision of this Agreement is determined by a court to be, or becomes, invalid, unenforceable or illegal, such provision shall be (a) modified to be made valid, enforceable and legal in such a manner as to best effectuate the manifest intent of the parties on the date hereof, or (b) deemed eliminated where such modification is not practicable; and the remainder of this Agreement shall remain in effect in accordance with its terms as modified by such modification or deletion.

1. e) Headings. Paragraph headings used in this Agreement are for reference purposes only and shall not be interpreted to limit or affect in any way the meaning of the language contained in such paragraphs.
2. f) Governing Law and Jurisdiction. This Agreement is governed by and construed in accordance with the laws of the State of Israel, without reference to the choice or conflict of law rules.  The Parties hereby irrevocably consent to the exclusive jurisdiction of the competent courts in Tel Aviv, Israel, over any action, suit or proceeding arising hereunder.

The Customer further waives any personal service of any and all process upon it and consents that all such service of process may be made by certified mail, return receipt requested, addressed to the Customer at the address set forth in the Order or at such other address as hereinafter designated by the Customer; and service so made shall be conclusively considered made and complete five (5) business days after the same has been mailed.  

1. g)  Force Majeure.  Neither party shall be liable to the other party for any delay which is due to fire, flood, lockout, transportation delay, war, acts of God, governmental rule or order, strikes or other labor difficulties, or other causes beyond its reasonable control. However, in such event, both parties shall resume performance promptly after the cause of such delay has been removed.
2. h) Independent Contractors. The parties are independent contractors and neither party is an agent of the other party. This Agreement does not create a partnership, franchise, joint venture or employment relationship between the parties. 

1. i) No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights. 

1. j) Entire Agreement. These Terms and the Order, constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all previous oral and written proposals, negotiations, representations, commitments and other communications between the parties. Vendor reserves the right to modify these Terms or its policies relating to the Services and/or Software or the functionality thereof. Changes will take effect 7 days after Vendor has notified Customer thereof unless such amendments are made in order to comply with legal requirements, in which cases the amendments will become effective immediately upon their initial posting, or as required. It is agreed that in the event any such changes materially affect Customer’s ability to use and/or benefit from the Services, Customer shall be entitled to terminate this Agreement with a 30 days’ notice (to be given within 7 days of the date Customer became aware of the changes).

Last Updated: March 26, 2022