1. LICENSE GRANT / PURCHASE ORDERS
During the Term (as defined in Section 2.1) and subject to the terms and conditions of this Agreement (as defined below), Cynet shall provide to Customer (as defined in the applicable Purchase Order) a limited, non-exclusive, non-transferable license to use and access (i) the Cynet 360 solution (the “Services”) for Customer applications, hardware, firmware, computer systems (virtual or standalone), data, user accounts, network environment (the “Systems”) (as that term is defined in Section 3.1) set forth in a Purchase Order, (ii) any online information, product descriptions, technical specifications, manuals and materials made available to the Customer, relating to the use of the Services (the “Documentation”), or (iii) any training materials and handouts provided to Customer, including, but not limited to, documents, data, drawings, models, code, applications and reports, and associated software and materials, including any modifications or improvements thereof, that may include third party materials licensed to Cynet (the “Materials”), each as described in an applicable Purchase Order. For the purposes of this Agreement, a “Purchase Order” shall be a duly executed quote with corresponding purchase order, statement of work, order form or Purchase Order, etc. A Purchase Order is an integral part of this Agreement. The license grant in this Section 1 for the Materials is provided solely for Customer’s internal use to further expand and improve the knowledge base of its employees who have a need to know such information, and expressly prohibits use of the Materials for production or commercial purposes.
Unless otherwise specified in the Purchase Order, the terms of this General Terms of Contract for Services will govern the Purchase Order (together herein referred to as the “Agreement”). This Agreement shall take precedence over any other agreements, contracts or general terms that Customer may have entered into with Cynet.
2. TERM AND TERMINATION
2.1 Term. This Agreement shall commence upon the Effective Date and shall continue for one (1) year, or such longer period of time as set forth in such Purchase Order (the “Initial Term”). Unless otherwise specified in the Purchase Order, this Agreement shall automatically renew for additional, successive one (1) year terms unless either party notifies the other party in writing of its intent not to renew the Agreement at least thirty (30) days prior to the end of the then current term. The Initial Term and each renewal pursuant to this Section 2.1 shall together be referred to herein as the “Term”.
2.2 Termination. Either party may terminate this Agreement immediately if the other party fails to cure a material breach within thirty (30) days after receipt of written notice thereof.
2.3 Effect of Termination. Following the termination or non-renewal of this Agreement, Cynet will cease providing the Services and will ensure that all data from the Customer is deleted from the system. Upon termination or non-renewal, Customer shall pay all undisputed charges within thirty days of Customer’s receipt of invoice.
The Cynet SOC commits to use reasonable commercial efforts to provide to the Customer the following:
· The Cynet SOC will be operational 24/7/365 days a year.
· Cynet SOC staff will monitor for alerts from the Customer’s Cynet 360 installation. SOC staff will contact the Customer’s points of contact via approved communication channels, based on the Alert Severity Matrix below.
· Cynet SOC staff will be available to the Customer to provide recommended remediation steps for the detected threat
· The SOC response will be via email and a call to the Customer contact as follows:
Within 2 hours
Within 4 hours
Within 6 hours
Within 12 hours
· Provide Cynet with points of contact in the event of a threat detection
· Reasonable availability of customer representatives when the SOC has detected a security incident
3.3 Exclusions. Cynet shall not be responsible for any failure or deficiency of Services availability to the extent caused by or associated with: (i) a Force Majeure Event (as defined in Section 11.8); (ii) regularly scheduled or emergency maintenance and upgrades (including, but not limited to the system upgrades described in Section 3.2 above); (iii) any causes attributable to Customer or its contractors, (iv) software or hardware not provided or controlled by Cynet; and (v) outages elsewhere on the Internet, including but not limited to interruptions at any Customer or third party data center or internet service provider that hinder Customer’s access to the Services.
4. PROPRIETARY RIGHTS
4.2 Restrictions. Customer shall not: (a) copy or otherwise reproduce, whether in whole or in part, the Services (or software associated therewith), Documentation, Training or Training Materials; (b) modify or create any derivative work of the Services (or software associated therewith), Documentation, Training or Training Materials; (c) sell, rent, loan, license, sublicense, distribute, assign or otherwise transfer the Services (or software associated therewith), Documentation, Training or Training Materials; (d) cause or permit the disassembly, decompilation or reverse engineering of the Services (or software associated therewith), Documentation, Training or Training Materials or otherwise attempt to gain access to the source code of the Services (or software associated therewith); or (e) cause or permit any third party to do any of the foregoing.
4.3 Reservation of Rights. Each party reserves all rights not expressly granted in this Agreement and no licenses are granted by either party to the other party under this Agreement except as expressly stated in this paragraph, whether by implication, estoppel or otherwise. Cynet or its licensors own and retain all right, title and interest (including all intellectual property rights) in and to the Services, Documentation, and associated software, including any modifications or improvements thereof. Subject to the terms of the Agreement, Customer shall own all right, title and interest to all data reports that contain the results of the monitoring and discovery performed by the Services (the “Reports”).
5. CUSTOMER RESPONSIBILITIES. Customer acknowledges and agrees that (i) it is Customer’s sole responsibility (at its discretion) to update and maintain the Systems, including without limitation, fixing any security vulnerability revealed by the Services and Reports, (ii) the Reports and Services are not guaranteed by Cynet to identify and/or contain any and/or all vulnerabilities, incidents, issues of concern, indicators of compromise, malware, risk to confidentiality of information, Advanced Persistent Threats, or activity and (iii) it is Customer’s sole responsibility to test, vet and confirm that any remedial measures contained in the Reports are appropriate for Customer’s purposes. Customer further acknowledges and agrees that Customer’s use of the Services does not render or guarantee that the Systems will be invulnerable or free from unauthorized access, use, or disclosure of information. Customer further acknowledges and agrees that Customer’s use of the Services starts on the Effective Date and the Customer is responsible for providing all configuration data (host names, user accounts, etc.) needed to perform the Services. Failure to provide configuration data does not release Customer from any responsibility in the Agreement. Customer acknowledges and agrees that Customer’s and its users’ use of the Services may be dependent upon access to telecommunications and Internet services. Customer shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required for its access and use of the Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Cynet shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
6. PAYMENT TERMS. Cynet will invoice the Customer for the fees set forth in an applicable Purchase Order immediately following the effective date of such Purchase Order and Customer shall pay the fees as set forth on such Purchase Order within thirty days of Customer’s receipt of invoice.
7. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR ANY LOST OPPORTUNITY, DATA OR PROFITS, OR THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF THIS AGREEMENT, OR ANY EXHIBIT, PURCHASE ORDER, SCHEDULE OR ADDENDUM THERETO, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR OTHER TORT), WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY HEREUNDER FOR ANY CAUSE OF ACTION OR THEORY OF LIABILITY EXCEED THE AMOUNTS PAID BY CUSTOMER TO CYNET HEREUNDER DURING THE PRECEDING TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. THESE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN AND SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.
8.1 Definition of Confidential Information. By virtue of this Agreement, the parties may have access to each other’s Confidential Information. The party disclosing Confidential Information (as defined below) hereunder is referred to herein as the “Disclosing Party”. The party receiving such Confidential Information is referred to herein as the “Receiving Party”. “Confidential Information,” as used in this Agreement, means any written, machine-reproducible and/or visual materials that are clearly labeled as proprietary, confidential, or with words of similar meaning, and all information that is orally or visually disclosed, if not expressly designated, if it is identified as proprietary or confidential at the time of its disclosure or in a writing provided to the receiving party within thirty (30) days after disclosure. Confidential Information does not include information that: (a) is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public; (b) was acquired by the receiving party before receiving such information from the disclosing party and without restriction as to use or disclosure; (c) is hereafter rightfully furnished to the receiving party by a third party, without restriction as to use or disclosure; or (d) is information which the receiving party can document was independently developed by the receiving party without use of the disclosing party’s Confidential Information.
8.2 Use of Confidential Information. Neither party shall disclose any of the other party’s Confidential Information to any third party or use such Confidential Information for any purpose other than to (i) perform its obligations or exercise its rights under this Agreement; or (ii) as otherwise required by law. Each party shall use the same measures to protect the Confidential Information of the other party as it uses with respect to its own confidential information of like importance, but in no event shall it use less than reasonable care, including, instructing its employees, vendors, agents, consultants and independent contractors of the foregoing and requiring them to be bound by appropriate confidentiality agreements. If a party is required to disclose by law the Confidential Information of the other party, the Disclosing Party shall provide the other party with prompt notice of such request(s) so that it may seek an appropriate protective order and/or waive compliance with the provisions of this Agreement. Cynet reserves the right to disclose the terms and conditions of this Agreement, provided the recipient agrees to maintain the confidentiality of the information disclosed at a standard not less than required herein, (a) to accountants, banks and financing sources and their advisors for the purpose of securing financing; and (b) in connection with an actual or proposed merger or acquisition or similar transaction. Upon termination or expiration of this Agreement the receiving party will promptly return to the disclosing party or destroy, at the disclosing party’s option, all tangible items containing or consisting of the disclosing party’s Confidential Information, if return or destruction is feasible. If return or destruction of the disclosing party’s Confidential Information is not feasible, the receiving party’s obligation to continue to maintain the confidentiality of the Confidential Information continues for as long as the receiving party has the Confidential Information. Notwithstanding the foregoing, the parties’ obligation to continue to maintain the confidentiality of the Confidential Information does not terminate or expire.
9. LIMITED WARRANTIES.
9.1 Conformance with Documentation. Cynet warrants that the Services will substantially conform in all material respects in accordance with the Documentation. Customer will provide prompt written notice of any non-conformity and provide Cynet a reasonable opportunity, not to exceed thirty (30) days, to remedy such non-conformity. Cynet may modify the Documentation in its sole discretion, provided the functionality or security threshold of the Services will not be materially degraded during the Term.
9.2 Service Availability. Cynet warrants that the Services will meet the requirements set forth in Section 3.1.
9.3 No Viruses. Cynet warrants that the Services do not contain any computer code that is intended to (i) disrupt, disable, harm, or otherwise impede in any manner, the operation of Customer’s software, firmware, hardware, computer systems or network (sometimes referred to as “viruses” or “worms”), (ii) permit unauthorized access to Customer’s network and computer systems (sometimes referred to as “traps”, “access codes” or “trap door” devices), or any other similar harmful, malicious or hidden procedures, routines or mechanisms which could cause such programs to cease functioning or to damage or corrupt data, storage media, programs, equipment or communications, or otherwise interfere with Customer’s operations.
9.4 Warranty Disclaimer. EXCEPT AS PROVIDED IN THIS SECTION 9, CYNET PROVIDES THE SERVICES “AS IS” AND MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, TRAINING, REPORTS, DOCUMENTATION, TRAINING MATERIALS OR ANY OTHER RELATED DATA, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF AVAILABILITY, ACCURACY, RELIABILITY, USEFULNESS, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE AND ANY CONDITION OR WARRANTY ARISING FROM COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY. THE FACT THAT AN ORGANIZATION OR WEBSITE IS REFERRED TO IN THE TRAINING OR TRAINING MATERIALS AS A CITATION AND/OR AS A POTENTIAL SOURCE FOR FURTHER INFORMATION DOES NOT MEAN THAT CYNET ENDORSES THE INFORMATION SUCH ORGANIZATION OR WEBSITE MAY PROVIDE OR THE RECOMMENDATIONS IT MAY MAKE.
10. INTELLECTUAL PROPERTY INDEMNIFICATION
10.1 Subject to the terms of this Section 10, Cynet shall, at its sole cost and expense, defend (or at its sole option settle), indemnify and hold harmless Customer and the directors, officers, employees and agents of the foregoing (“Customer Indemnitees”) from and against any third party claim that the Services, when used in accordance with this Agreement, infringe any United States patent, copyright or trademark of a third party (a “Claim”).
10.2 Cynet’s obligations of indemnification shall be subject to the following: (a) Customer shall notify Cynet of any such Claim promptly after it obtains knowledge of such Claim, (b) Customer shall provide Cynet with reasonable assistance, information, and cooperation in defending the lawsuit or proceeding, at Cynet’s sole cost and expense, (c) Customer shall give Cynet full control and sole authority over the defense and settlement of such Claim, provided settlement fully releases the Customer Indemnitees and is solely for monetary damages and does not admit any liability on behalf of the Customer. Notwithstanding the following, Customer may join in defense and settlement discussions directly or through counsel of Customer’s choice at Customer’s own cost and expense.
10.3 Following notice of a Claim or upon any facts which in Cynet’s sole opinion are likely to give rise to such Claim, Cynet shall in its sole discretion and at its sole option elect to (a) procure for Customer the right to continue to use the Services, at no additional cost to Customer or Customer Indemnitees, (b) replace the Services so that it becomes non-infringing but functionally equivalent, (c) modify the Services to avoid the alleged infringement but in a manner so that it remains functionally equivalent, or (d) terminate this Agreement and provide a refund to Customer of all amounts prepaid by Customer to Cynet for Services that have not yet been provided.
10.4 Notwithstanding anything contrary contained herein, Cynet shall have no obligation to indemnify, defend or hold harmless the Customer hereunder to the extent a Claim is caused by or results from: (a) Customer’s combination or use of the Services with software, services or products developed by Customer or other third parties, unless specifically contemplated by this Agreement, (b) modification of the Services by anyone other than Cynet or its agents without Cynet’s express approval, (c) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (d) Customer’s use of the Services in a manner not contemplated by this Agreement, the Documentation or the Training Materials, or (e) Customer’s negligence, recklessness or intentional misconduct or its failure to abide by all laws, rules, regulations or orders applicable to the Services.
11.1 Entire Agreement. This Agreement constitutes the entire understanding and agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations and understandings between the parties regarding the subject matter hereof, including any terms contained in any purchase order or invoice issued by either party in connection with any transaction covered by this Agreement are null and void. Where there is a conflict between a Purchase Order and this Agreement, the terms contained in a Purchase Order will take precedence relating to the matter for which there was a conflict. All headings herein are not to be considered in the construction or interpretation of any provision of this Agreement.
11.2 Amendment and Waiver. Any term or provision of this Agreement may be amended in writing by both parties to this Agreement. The observance of any term of this Agreement may be waived only by a writing signed by both parties.
11.3 Severability. If any provision of this Agreement is found to be invalid or unenforceable, such provision shall be severed from the Agreement and the remainder of this Agreement shall be interpreted so as best to reasonably affect the intent of the parties hereto.
11.4 Independent Contractors. The parties are independent contractors, and neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
11.5 Governing Law. This Agreement shall be governed by the laws of the State of Israel, without reference to its conflict of laws principles. The parties consent to exclusive jurisdiction and venue in and for Tel Aviv, Israel.
11.6 Injunctive Relief. Each party reserves the right to seek injunctive relief due to the other party’s actual or threatened breach of this Agreement.
11.7 Force Majeure. Neither party shall be responsible for any non-performance or delay (except for delay in payment) attributable in whole or in part to any cause beyond its reasonable control (a “Force Majeure Event”), including but not limited to acts of God, government actions including changes in applicable law, war, civil disturbance, sabotage, terrorist acts, failure or delay in provision of services by subcontractors or the other party’s fault or negligence.
11.8 Assignment. Neither party may assign this Agreement without the prior written consent of the other party, except that either party may assign this Agreement to any successor to substantially all of its business or assets to which this Agreement relates, upon written notice to the other party, provided that in such case the other party may terminate this Agreement within thirty (30) days of receipt of the notice of assignment. This Agreement shall inure to the benefit of and be binding on the respective successors and assigns of the parties.
11.9 Notice. Any notice required under this Agreement shall be in writing and shall be delivered by hand or by overnight express mail to the contact name and address set forth on a Purchase Order, or as otherwise described in this Agreement.
11.10 Survival. The following provisions shall survive the termination or expiration of this Agreement: Sections 4.2, 4.3, 6, 7, 8, 9, 10 and 11.
11.11 Counterparts and Electronic Signatures. This Agreement and any Purchase Orders may be executed in one or more counterparts, each of which shall constitute one and the same instrument. For the purpose of executing this Agreement and all Purchase Orders under this Agreement, the parties hereto agree that .pdf signatures sent via email shall serve as original signatures.