SaaS Agreement

SaaS Agreement

This Agreement (the “Agreement”),  is between Cyber Advisory Excellence LTD, a company registered under the laws of the State of Israel (“Cyber A.E”), and the Customer. Each of Cyber A.E and the Customer is hereinafter referred to as a “Party” and, together, as the “Parties”.

WHEREAS, Cyber A.E has developed a Cyber Insurance e-learning program aimed at educating users on the main terms and issues in the cyber insurance practice (the “Service”); and

WHEREAS Customer is interested in purchasing a license to use the Service internally within Customer’s organization for the education of Customer’s employees (the “Purpose”);

NOW THEREFORE, in consideration of the mutual covenants hereinafter, the Parties agree as follows:

 

  1. Definitions

     

    1. Customer’s Personal Data means personal data of the users of the Service on behalf of Customer.
    2. Output Data” means the various reports, alerts, analytics, recommendations, notices, and other types of information and data that the Service may generate, provide or make available to Customer.
    3. Service Data” means the data collected and processed in the course of providing the Service, about the use of the Service, including de-identified data, bandwidth utilization, and statistical or aggregated information about Customer’s use of the Service and all pertinent information at Customer’s disposal concerning bugs, errors and malfunctions in the Software, performance of the Software, its compatibility and interoperability.
    4. Customer’s Data means Customer’s Personal Data and Service Data collectively.
    5. Term” means the period of this Agreement as specified in section 11 below.
  2. The Service

     

Cyber A.E has developed a Cyber Insurance learning program aimed at providing users better understanding of the principle terms and issues in the cyber insurance practice.

The Service is comprised of 8 chapters with content about the cyber industry. Customer may request to revise such content or to include chapters on specific topics; Cyber A.E will do so provided that such revisions and/or additional content are acceptable to Cyber A.E at its sole and exclusive discretion. Cyber A.E’s refusal to revise or include certain content in the Service will not constitute a breach of this Agreement. Cyber A.E may charge additional fees for such revisions and/or additional content; if Cyber A.E decides to do so, it will notify Customer of such fees in advance. Customer shall be able to track its users’ activity on the Service. When a user finishes the learning program successfully as per Cyber A.E’s standards, it shall receive a certificate for successfully passing the Cyber Insurance Academy. The certificate will be valid for one (1) year from the date of completion of the program; thereafter, Customer will be able to renew its uses’ certificates for a one (1) year period at a time, subject to purchasing (and for the users’ completion of) the applicable advanced learning program, which includes additional content and updates relating to cyber insurance, and paying the applicable renewal fee.

  1. License to Use the Service

     

    1. Subject to the provisions of Sections 4 below and solely for the Purpose, Cyber A.E grants Customer a limited, non-transferable, non-assignable, non-exclusive, and non-sublicense-able right to use the Service during the Term for internal use only (the “License”).
    2. Customer’s License includes the number of users specified in the Price Quote. Each user can only be used by one (1) individual and for a term of one (1) year only from the date the user has been set-up in the Platform for the Customer.
    3. Customer must ensure that its employees, consultants and agents that it designates to use and deal with the Service fully comply with this Agreement, as well as agree and comply with the Service’s Terms of Use (Appendix B), as may be updated from time to time. Customer shall be liable to Cyber A.E for all acts or omissions of those that use and deal with the Service on its behalf, as though Customer had performed those acts or omissions.
  2. Use Restriction

     

Customer and all of its employees, agents, independent contractors or consultants shall not:

  1. sublicense, transfer and/or assign the Service or any part thereof to any third party, with or without consideration;
  2. render any services to third parties using the Service;
  3. remove, or in any manner alter, any product identification, proprietary, trademark, copyright or other notices contained in the Service;
  4. allow any third parties to use the Service;
  5. interfere with, burden or disrupt the Service’s functionality;
  6. make any copies of the Service, its content or any portions thereof.
  7. display content from the Service in any way; including by any software, feature, gadget or communication protocol which may alter the content or its design;
  8. download content from the Service for any purpose, unless explicitly stated by Cyber A.E that such action is permitted;
  9. work around any technical limitations of the Service;
  10. breach the security of the Service, identify, probe or scan any security vulnerabilities in the Service;
  11. use any tool to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Service;
  12. send any virus, worm, Trojan horse or other malicious or harmful code or attachment;
  13. use robots, crawlers and similar applications to scrape, harvest, collect or compile content from or through the Service.
  14. enhance, supplement, modify, adapt, decompile, disseminate, disassemble, recreate, generate, reverse assemble, reverse compile, reverse engineer, or otherwise attempt to identify the underlying source code of the Service; or
  15. use the Service in order to develop, or create, or permit others to develop or create, a product or service similar or competitive to the Service.

Any such improper use of the Service will result in irreparable harm to Cyber A.E for which monetary damages would be inadequate.

 

  1. Intellectual Property

     

    • The Service is a proprietary offering of Cyber A.E, protected under copyright laws and international copyright treaties, patent law, trade secret law and other intellectual property rights of general applicability. The Service is licensed to Customer for use and access only in accordance with the terms of this Agreement and is not sold or licensed in any other way.
    • Except for Customer’s limited access to use the Service according to this Agreement, this Agreement does not grant or assigns to Customer, any license, right, title, or interest in or to the Service, Service Data, output Data and Feedbacks or the intellectual property rights associated with it. All rights, title and interest, including copyrights, patents, trademarks, trade names, trade secrets and other intellectual property rights, and any goodwill associated therewith, in and to the Service or any part thereof, including computer code, graphic design, layout and the user interfaces of the Service, whether or not based on or resulting from Feedback, are and will remain at all times, owned by, or licensed, to Cyber A.E.
    • Subject to your written consent, and notwithstanding anything to the contrary herein, Cyber A.E may identify Customer as a customer and indicate Customer as a user of the Service on its website and in other online or offline marketing materials and press releases. Customer hereby grants Cyber A.E a worldwide, non-exclusive, non-transferable, royalty-free and free of charge, license, to use Customer’s name, logo, and website URL on its website and in other online or offline marketing materials relating to the Service. Cyber A.E will use this content strictly in accordance with any usage guidelines sent by Customer in advance.
  2. Confidentiality

     

    • ”Confidential Information” shall mean any and all information disclosed by one party (”Disclosing Party”) to the other (”Receiving Party”) regarding past, present, or future marketing and business plans, customer lists, lists of prospective customers, technical, financial or other proprietary or confidential information of the Disclosing Party, formulae, concepts, discoveries, data, designs, ideas, inventions, methods, models, research plans, procedures, designs, formulations, processes, specifications and techniques, prototypes, samples, analyses, computer programs, trade secrets, data, methodologies, techniques, non-published patent applications and any other data or information, as well as improvements and know-how related thereto.
    • Each Party herein must hold any Confidential Information in confidence using the same degree of care, but in no case less than a reasonable degree of care, that it uses to prevent the unauthorized dissemination or publication of its own confidential information. Receiving Party may use this Confidential Information only for the purpose of performing its obligations under this Agreement.
    • The obligations set forth in this section shall not apply to information that: (i) is now or subsequently becomes generally available in the public domain through no fault or breach on Receiving Party’s part; (ii) Receiving Party can demonstrate in its prior established records to have had rightfully in Receiving Party’s possession prior to disclosure of the same by the Disclosing Party; (iii) Receiving Party can demonstrate by written records that it had rightfully obtained the same from a third party who has the right to transfer or disclose it, without default or breach of confidentiality obligations; (iv) Disclosing Party has provided its prior written approval for disclosure; or (v) Receiving Party are required to disclose pursuant to a binding order or request by court or other governmental authority, or a binding provision of applicable law, provided that, to the extent permissible, Receiving Party provide the Disclosing Party notice of the requested disclosure as soon as practicable, to allow the Disclosing Party, if it so chooses, to seek an appropriate protective or preventive order.
  3. Feedback

     

    • Customer may provide Cyber A.E with information about the Service’s use experience, including information pertaining to bugs, errors and malfunctions of the Service, performance of the Service, the Service’s compatibility and interoperability, and information or content concerning enhancements, changes or additions to the Service that Customer requests, desires or suggests (collectively, the “Feedback”). Customer hereby assigns all right, title and interest in and to the Feedback to Cyber A.E, including the right to make commercial use thereof, for any purpose Cyber A.E deems appropriate.
  4. Data and Privacy

     

    1. Customer states that it has obtained, and will maintain valid throughout the Term, any and all authorizations, permissions and informed consents, including those of individuals about whom the Service may process personal data or personally identifiable information, as may be necessary under the law (including, the data protection laws and regulations), to allow Cyber A.E to lawfully collect, handle, retain, process and use such data in the manners and for the purposes of this engagement.. Customer shall defend, indemnify and hold harmless Cyber A.E and its directors, officers, employees, and vendors, upon Cyber A.E’s request and at Customer’s expense, from, and against, any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, arising from Customer’s breach of the foregoing statement.
    2. Customer permits Cyber A.E to use metadata and de-identified data generated in connection with the use of the Service, including data and bandwidth utilization and statistical or aggregated information (collectively, the “Metrics”), for any purpose Cyber A.E deems appropriate.
    3. Customer acknowledges and agrees that Cyber A.E may collect and process Customers’ Personal Data for the provision of the Service and in accordance with Cyber A.E’s privacy policy (Appendix C) which is hereby incorporated by reference to this Agreement. Cyber A.E shall be an independent controller of Customer’s Personal Data and shall process such personal data in accordance with its position as a controller of such personal data under applicable law.
    4. Customer further acknowledges and agrees that Cyber A.E will handle and use (by itself or by using trusted third-party service providers such as cloud service providers) the Customer’s Service Data and Feedback as follows:
      1. To provide the Service to Customer, conduct administrative and technical activities necessary to maintain and provide the Service and to improve and customize the Service;
      2. To conduct analysis or generate metrics related to the Service;
      3. For commercial and marketing purposes, publication of case studies and white papers (only in a form not identifying the Customer or its users);
      4. To bill and collect fees, enforce this Agreement and take any action in any case of dispute, or legal proceeding of any kind involving Customer with respect to the Service;
      5. To prevent fraud, misappropriation, infringements, and other illegal activities and misuse of the Service;
      6. To develop new products and services, for research and testing and for any other purpose.Customer will not be entitled to any remuneration from Cyber A.E for all such uses.
    5. Cyber A.E may disclose or share Customer’s Service Data, if required, or if it reasonably believes that it is required, by law, pursuant to a subpoena, order, or decree, issued by a competent judicial or administrative authority, provided that, to the extent legally permitted, Cyber A.E will endeavor to give Customer prompt notice of the requirement prior to such disclosure, to allow Customer, at Customer’s cost and expense, to intervene and protect its interests in the data.
    6. Subject to the foregoing, Cyber A.E will take precautions to maintain the confidentiality of Customer’s Service Data, in a manner no less protective than it uses to protect its own similar assets, but in no event less than reasonable care. Cyber A.E will not use or disclose Customer’s Service Data except as described above or otherwise subject to Customer’s express, prior, written permission. Cyber A.E’s personnel, staff, advisors and consultants will access Customer’s Service Data on a strict ‘need to know’ basis, subject to this Agreement.
    7. The Service does not provide, and is not intended as, data back-up service. Cyber A.E may delete Customer’s Data from the Service upon termination of this Agreement. Customer is responsible for maintaining back-up copies of its Data.
    8. Cyber A.E may store and process any Customer’s Data outside of the European Economic Area and outside Customer’s home country. Such transfer of Customer’s Personal Data will be performed in accordance with the applicable privacy laws.
    9. Customer will not be entitled to receive any remuneration from Cyber A.E for any use, utilization, publication or examination of Metrics and Feedback, provided that in the event of publications, the data published does not identify Customer specifically.

     

  5. Technical Support

     

    During the Term, Cyber A.E, either directly or with the assistance of third parties, will endeavor to provide Customer technical support for technical questions, problems and inquiries regarding the Service, during Cyber A.E’s business days and hours, and pursuant to its then-applicable support scheme, hours and channels. Cyber A.E will attempt to respond to Customer’s technical questions, problems and inquiries as soon as practicably possible. However, Cyber A.E makes no warranties to the successful or satisfactory resolution of the question, problem or inquiry; and may decline to provide such support for matters that it deems, in its sole discretion, to require unreasonable time, effort, costs or expenses. For the purpose of the provision of technical support for Customer’s technical questions, problems and inquiries, Customer will cooperate, and work closely with Cyber A.E, to reproduce malfunctions, including conducting diagnostic or troubleshooting activities, as Cyber A.E reasonably requests.

     

  1. Consideration

     

In consideration for the License, Customer will pay Cyber A.E the fees specified in the Price Quote sent (the “Consideration”) according to the payment scheme specified therein. The Consideration is non-refundable.

The Consideration is exclusive of any excise, sales tax, VAT, withholding tax or other governmental charges or transaction charges. Customer shall bear all such taxes and charges, excluding taxes based solely on Cyber A.E’s net income, by grossing-up the Consideration accordingly.

 

  1. Term and Termination

     

    1. This agreement will be in effect for one (1) year following its effective date, unless renewed by the Parties (the “Term”).
    2. Notwithstanding the above, either party may terminate this agreement:
      1. In the event of a breach of this Agreement by the other party, where the breach remains uncured for thirty (30) days following written notice thereof from the non-breaching party to the breaching party, but if a breach is of a nature that cannot be cured, then the non-breaching party may terminate the Agreement immediately upon notice to the other party;
      2. If the terminating party is required to do so by law;
      3. If the other party becomes or is declared insolvent or bankrupt, is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which proceedings are not dismissed within sixty (60) days of their commencement, makes an assignment for the benefit of creditors, or takes or is subject to any such other comparable action in any relevant jurisdiction.
    3. Immediately upon termination of this Agreement:
      1. Cyber A.E may terminate Customers’ account on the Service and delete the Customer’s Data (if stored) in its systems;
      2. Customer shall cease any and all use of the Service;
      3. Cyber A.E will charge Customer for all then-outstanding Fees (if any);
    4. Sections in this Agreement that by their purpose of nature should survive termination of this Agreement, will so survive.

 

  1. No Warranty and Limitation on Liability

     

    1. Cyber A.E will endeavor to have the Service operate properly. However, as a service that relies on back-end software, infrastructure, servers, third-party networks and continuous internet connectivity, it cannot not guarantee that the Service will operate in an uninterrupted or error-free manner, or that it will always be available, free from errors, omissions or malfunctions.
    2. If Cyber A.E becomes aware of any failure or malfunction, it shall attempt to regain the Service’s availability as soon as practicable. However, such incidents will not be considered a breach of this Agreement.
    3. THE SERVICE IS PROVIDED “AS IS”. CYBER A.E HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, THE CUSTOMER’S DATA AND THE OUTPUT DATA, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, NON-INFRINGEMENT, TITLE, SECURITY, COMPATIBILITY OR PERFORMANCE.
    4. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT IN THE EVENT OF INTENTIONAL MISCONDUCT OR BREACH OF CYBER A.E’S CONFIDENTIALITY OBLIGATIONS, CYBER A.E, INCLUDING ITS EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON ITS BEHALF, WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, STATUTORY OR PUNITIVE DAMAGES, LOSSES (INCLUDING LOSS OF PROFIT, LOSS OF BUSINESS OR BUSINESS OPPORTUNITIES AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT, CONTRACT, OR IN ANY OTHER FORM OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), ARISING FROM, OR IN CONNECTION, WITH THIS AGREEMENT, ANY USE OF, OR THE INABILITY TO USE THE SERVICE, THE CUSTOMER’S DATA OR THE OUTPUT DATA, ANY RELIANCE UPON THE OUTPUT DATA OR ANY ERROR, INCOMPLETENESS, INCORRECTNESS OR INACCURACY OF THE SERVICE OR THE OUTPUT DATA.
    5. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT IN THE EVENT OF INTENTIONAL MISCONDUCT, OR BREACH OF CONFIDENTIALITY OBLIGATIONS, THE TOTAL AND AGGREGATE LIABILITY OF CYBER A.E (INCLUDING ITS RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON ITS BEHALF), FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICE OR THE OUTPUT DATA, SHALL BE LIMITED TO THE FEES PAYABLE TO CYBER A.E FOR THE SERVICES IN THE PRECEDING 12 MONTHS PRIOR TO THE EVENT PURPORTEDLY GIVING RISE TO THE CLAIM OCCURRED.
  2. Indemnification

     

    1. Customer agrees to indemnify and hold harmless Cyber A.E and its directors, officers, employees, and subcontractors, upon Cyber A.E’s request and at Customer’s expense, from, and against, any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, arising from any third-party complaint, claim, plea, or demand in connection with Customer’s breach of any provision or representation in this Agreement.
    2. If Cyber A.E seeks indemnification from Customer, it shall provide Customer with (i) prompt written notice of any indemnifiable claim; (ii) all reasonable assistance and cooperation in the defense of such indemnifiable claim and any related settlement negotiations, at Customer’s expense; and (iii) exclusive control over the defense or settlement of such indemnifiable claim, provided, however, that Cyber A.E may settle or reach compromise on any such claim without Customer’s consent, if and to the extent such settlement or compromise does not impose any liability (monetary, criminal or otherwise) on Customer. Cyber A.E shall have the right to participate, at its own expense, in the defense (and related settlement negotiations) of any indemnifiable claim with counsel of its selection.

     

  3. Governing Law and Jurisdiction

     

    1. Regardless of Customer’s jurisdiction of incorporation, the jurisdiction where it engages in business, or access the Service from, this Agreement and Customer’s use of the Service will be exclusively governed by and construed in accordance with the laws of the State of Israel, excluding any otherwise applicable rules of conflict of laws, which would result in the application of the laws of a jurisdiction other than Israel. Any dispute, controversy or claim which may arise out of or in connection with this Agreement or the Service, shall be submitted to the sole and exclusive jurisdiction of the competent court in Tel Aviv district in Israel. Subject to Section 13.2 below, the Parties hereby expressly consent to the exclusive personal jurisdiction and venue of such courts, and waive any objections related thereto including objections on the grounds of improper venue, lack of personal jurisdiction or forum non conveniens.
    2. Notwithstanding the foregoing, Cyber A.E may also lodge a claim against Customer: (a) pursuant to the indemnity clause above, in any court adjudicating a third party claim against Cyber A.E; and (b) for interim, emergency or injunctive relief in any other court having general jurisdiction over Customer.

     

  4. Miscellaneous

     

    1. Assignment. Customer may not assign this Agreement without obtaining Cyber A.E’s prior written consent. Any purported assignment without Cyber A.E’s prior written consent is void. To the greatest extent permissible by law, Cyber A.E may assign these Terms in their entirety, including all right, duties, liabilities, performances and obligations herein, upon notice to Customer and without obtaining Customer’s further specific consent, to any third-party, upon a merger, acquisition, change of control or the sale of all or part of Cyber A.E’s equity or assets, or in the event of a change of control of the Service and/or its operation. By virtue of such assignment, the assignee assumes Cyber A.E’s stead, including all right, duties, liabilities, performances and obligations hereunder, and Cyber A.E shall be released therefrom.
    2. Relationship of the Parties. The relationship between the Parties hereto is strictly that of independent contractors, and neither Party is an agent, partner, joint venturer or employee of the other.
    3. Subcontracting. Cyber A.E may subcontract or delegate the performance of its obligations under this Agreement, or the provision of the Service (or any part thereof), to any third party of its choosing, provided however, that it remains liable to Customer for the performance of its obligations under this Agreement.
    4. Complete Terms and Severability. This Agreement constitutes the entire and complete agreement between the Parties concerning the subject matter herein and supersede all prior oral or written statements, understandings, negotiations and representations with respect to the subject matter herein. If any provision of this Agreement is held invalid or unenforceable, that provision shall be construed in a manner consistent with the applicable law to reflect, as nearly as possible, the original intentions of the Parties, and the remaining provisions will remain in full force and effect. This Agreement may be modified or amended only in writing, signed by the duly authorized representatives of both Parties.
    5. No Waiver. Neither Party will, by mere lapse of time, without giving express notice thereof, be deemed to have waived any breach, by the other Party, of any terms or provisions of these Terms. The waiver, by either Party, of any such breach, will not be construed as a waiver of subsequent breaches or as a continuing waiver of such breach.