NEURALEGION LTD SOFTWARE SERVICE AGREEMENT
THESE TERMS AND CONDITIONS (the “Agreement”) CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND NEURALEGION LTD. (“NeuraLegion”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO BIND SUCH ENTITY TO THIS AGREEMENT. In any event, references herein to “Customer” means you or such entity (as the case may be).
YOU MUST READ THIS AGREEMENT CAREFULLY, AND BY ACCESSING OR USING THE WEBSITE, YOU CONFIRM THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY:
(A) THE TERMS AND CONDITIONS OF THIS AGREEMENT IN THEIR ENTIRETY; AND
(B) ANY SUPPLEMENTAL TERMS OR POLICIES IN THIS AGREEMENT WHICH ARE STATED TO BE INCORPORATED INTO THIS AGREEMENT.
IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE WEBSITE.
The language of this Agreement and all attachments or amendments to this Agreement, contract interpretations, notices and dispute resolutions is hereby expressly agreed to be the English language. By entering into the Agreement, Customer hereby irrevocably and unconditionally waives any law applicable to Customer requiring that the Agreement be localized to meet Customer’s language or requiring an original (non-electronic) signature or delivery or retention of non-electronic records.
NeuraLegion and Customer acknowledge that, the terms and conditions of this Agreement shall not apply, and shall not bind either NeuraLegion or Customer, if NeuraLegion and Customer have entered into a separate, non-electronic license agreement for the Software.
By placing a purchase order with NeuraLegion, Customer agrees that the terms and conditions of this Agreement shall apply to and govern that purchase order. Except with respect to product, services and pricing applicable to a purchase order, additional or conflicting terms in any purchase order shall have no force or effect on either party, unless that purchase order is signed in hardcopy form by each party or the terms are exchanged between the parties and attached to Customer’s purchase order, and then those terms shall apply to the parties solely for that purchase order. Except as otherwise specified herein, any additional or conflicting terms contained in any other document (including, without limitation, any pre-printed, additional or conflicting terms on any Customer purchase order, or acknowledgement from either party) shall be null, void and of no effect on either party.
Notwithstanding the foregoing, this Agreement may be amended by NeuraLegion from time to time.
This Agreement contains a range of capitalized terms, some of which are defined in this Section, and some of which are defined elsewhere.
“Approved User” means any person authorized as a representative of the Authorized Customer, who: (a) is identified through the Authentication Process; and, in addition (b) is authorized by Customer to use and access the AIAST Platform and the Services, and have been supplied user identifications and passwords by the Customer.
“Authentication Process” means an offline and/or online authentication process conducted in order to verify the identity of the Customer and any Approved User acting on its behalf. Authentication Processes are established by NeuraLegion and may be updated or otherwise amended by it from time to time in its sole discretion.
“Authorized Customer” means an End-User customer that successfully completes the Authentication Process to be conducted by or on behalf of NeuraLegion; and, in addition is duly registered as a user of the Service through the AIAST Platform.
“Confidential Information” of a party means all information, data, performance and tests results, evaluations, specifications, trade secrets, software (in object code and machine-readable form or source code), documentation and any other proprietary information of the such party. For clarity, the AIAST Platform, the Software and the Documentation shall be deemed Confidential Information of NeuraLegion, and the Customer Data and any Reports shall be deemed Confidential Information of Customer.
“Customer Data” means, collectively, the systems, software, applications, data, or any other information and/or tools stored in electronic form by Customer in the Environment.
“Documentation” means any instruction manuals and online help files regarding the use of the Services through the AIAST Platform.
“End-User” means a customer who acquires Services for its internal use (rather than distribution, resale or use of Software to provide a service to third parties). For clarity, “internal use” does not include timesharing or the provision of internet services to third parties.
“AIAST Platform” means all the components, services and sub-services (including but not limited to: software, programs, code, templates, and data supplied by NeuraLegion) which are offered through the website located at the following URL: www.NeuraLegion.com, and any other location, as may be amended by NeuraLegion from time to time, to End-Users and are required to enable the functionality and performance of the Service.
“Report(s)” means the reports generated by the AIAST Platform through the use of the Services by the Customer and/or by the NeuraLegion support team.
“Scan” means a single activation of Service vulnerability detection engine through the AIAST Platform under the restriction of a Session.
“Service Unit” means provision of Services for a period of Time Unit in a manner that allows the End-User to make unlimited number of Service Activations of the Services in the specific Environment established by the relevant End-User for such purpose and/or Production environment, as applicable.
“Service(s)” means the on-demand AIAST service operated by NeuraLegion and/or the Customer through the AIAST Platform, as may be amended by NeuraLegion from time to time; as well as any Documentation in such NeuraLegion Platform. Service(s) include, but are not limited to, conduct of Scan(s) during Session(s), generation of Report(s), etc.
“Software” means NeuraLegion AIAST technology software operated by it through the AIAST Platform, which is a machine learning-powered software Application Security Testing (AST) tool for virtual and physical applications.
“Time Unit” means the AIAST platform pre-defined subscription time frame outlined in the applicable purchase order, in which the End-User will use the Services in accordance with the allowed number of concurrent Scans.
All references in this Agreement to the “purchase” or “sale” of Services shall mean, with respect to all parts of such Services, the acquiring or granting, respectively, of a license to use such parts, and to exercise any other rights pertaining to such parts, which are expressly set forth herein
2. THE SERVICES
2.1. License to Customer. Subject to the terms and conditions of this Agreement (including, without limitation the completion of the initial Authentication Process and to the payment of fees to NeuraLegion pursuant to Section 4 below), NeuraLegion hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license, for Approved Users to access, display and use the Services solely for Customer’s internal business purposes, all solely during and in connection with Services purchased by Customer from and after the Effective Date and until conclusion of the Term. With respect to the Documentation, Customer may make a reasonable number of copies of the Documentation applicable to the Services solely as reasonably needed for its internal business use in accordance with the express use rights specified herein. Customer acknowledges and agrees that the use rights provided hereunder do not grant any rights not explicitly expressed. All other such rights and interests in NeuraLegion Intellectual Property (including any derivatives thereto) are expressly reserved, owned by and remain vested in NeuraLegion and its third party vendors, and except for the limited use rights granted hereunder. Customer shall not assert any right, title, or interest in or to any NeuraLegion Intellectual Property, or portion thereof. Without limiting the foregoing, Customer acknowledges and agrees that no rights or any other interests are provided to you with respect to: (i) the Services beyond those rights specified in this Agreement or any applicable purchase order, (ii) rights to provide access to or use of the Services to any other party, including, without limitation, any uses in the nature of a service bureau or application services provider, (iii) rights to obtain possession of copies of any component of the Services or any software used to provide or perform the Services, or (iv) representations, warranties or other third party beneficiary rights from any NeuraLegion third party vendor.
2.2. License Restrictions. Except as expressly permitted in this Agreement, Customer agrees that it will not itself, or through any parent, subsidiary, affiliate, agent or other third party, directly or indirectly: (i) sell, lease, license or sublicense the Services (including the Software and/or AIAST Platform and/or Documentation) to any third party, or disclose, otherwise, make available to, or permit use of such Services by any third party; (ii) decompile, disassemble, reverse engineer, or work around any technical limitations in the Services and/or the Software and/or the AIAST Platform, in whole or in part; (iii) use, copy, reproduce, write or develop any derivative software or any other software program or product based upon all or any part of the Services and/or Software and/or the AIAST Platform and/or Documentation or any NeuraLegion Confidential Information; (iv) use the Services and/or the Software and/or the AIAST Platform and/or Documentation in any manner directly or indirectly related to or in connection with the operation or management of any business for the benefit of third parties, including without limitation a timeshare, facilities management, outsourcing, service bureau, testing facility, or data processing services; (v) copy, display, distribute, or otherwise use any Report in any manner or for any purpose not expressly authorized by this Agreement, or create derivative works of or otherwise adapt, modify, or translate any Report; (vi) extract content from any Report in order to repurpose or resell its content; (vii) alter, remove, obscure, erase, deface, or hide from view any copyright, trademark, or other proprietary rights notice contained in any Report; (viii) permit unauthorized use of the Services or unauthorized access to the AIAST Platform; or (ix) access the AIAST Platform or use the Services and/or Documentation to build a competitive product or service, or copy any features, functions or graphics thereof.
2.3. Support: During the Term and subject to full payment by Customer of the fees set forth in the applicable purchase order, NeuraLegion shall provide those support services shall be in accordance with the terms that will be agreed between NeuraLegion and Customer in the applicable purchase order.
2.4. Customer Responsibilities. Customer shall: (i) use the Services solely for the use identified in this Agreement, only in accordance with this Agreement and the Documentation, and applicable federal, state, and local laws and regulations, including, without limitation, all laws and regulations respecting data privacy, international communications, foreign corrupt practices, the transfer of intellectual property, and the export and import of data and software. Among others (and without limiting the generality of the aforesaid) Customer shall not use the Services to perform any unlawful activity including (without limitation) any computer crime, breach of privacy, or illegal access to or use of systems, software, applications, or any other data or tools; (ii) not interfere or disrupt the integrity or performance of the Services; and (iii) not attempt to gain unauthorized access to the Services and/or the AIAST Platform or their related systems or networks, and shall prevent unauthorized access to or use of the same, maintain the confidentiality of any passwords and account information required to access the Services and the AIAST Platform, not allow others to use the Services after Customer logged in, whether intentionally or otherwise, revoke access for those who are no longer Approved Users for any reason, and notify NeuraLegion promptly upon knowledge of any threatened or actual unauthorized access or use. WITHOUT DEROGATION FROM THE PROVISIONS OF SECTION 8 BELOW, CUSTOMER ACKNOWLEDGES AND AGREES THAT NEURALEGION IS NOT AND SHALL NOT BE LIABLE FOR ANY DAMAGES RESULTING FROM ANY OTHER PARTIES’ USE OF OR ACCESS TO CUSTOMER’S SERVICES ENVIRONMENT, REGARDLESS OF WHETHER SUCH PARTIES USE OR ACCESS IS WITH OR WITHOUT CUSTOMER’S KNOWLEDGE OR CONSENT.
2.5. Professional and Support Services. NeuraLegion is obligated to provide Customer support services through online contact forms. If Customer has not ordered support services coverage, and at any time wishes to reinstate such coverage, Customer will pay NeuraLegion in full for the lapsed time in accordance with the terms of this Agreement based on pre-agreed fees.
2.6. Initial Authentication Process. Customer will be entitled to use the Services only after the Authentication Process was completed to NeuraLegion’s full satisfaction and Customer was designated by NeuraLegion as an Authorized Customer. NeuraLegion may re-conduct any portion of the Authentication Process from time to time during the Term (as defined below). To the extent that at any time during the Term the Authentication Process is not completed to NeuraLegion full satisfaction, in its sole discretion, NeuraLegion shall be entitled to immediately terminate the Agreement without any costs, expense or liability to NeuraLegion.
3. RESERVATION OF RIGHTS
3.1. Upon due notice to customers, NeuraLegion may, in its sole discretion, change, limit, or discontinue any aspect, content, tool, or feature that is a part of the Services. NeuraLegion reserves the right, to restrict the use of the Services as well as suspend or revoke Customer’s rights to use the Services if Customer’s use of the Services violates this Agreement or applicable law.
4. FEES, PAYMENT AND TAXES
4.1. Service Fees. The prices for the Services shall be set forth on NeuraLegion’s price list. The price list in effect on the date of this Agreement is set forth in the applicable purchase order. NeuraLegion reserves the right to change the price list upon fifteen (15) days written notice, provided that NeuraLegion shall not change the prices charged from Customer during an initial period of twelve (12) months following the Effective Date. Unless otherwise stated in the applicable purchase order, Service fees will be quoted and payable in U.S. dollars. All Service fees are non-cancellable.
4.2. Invoicing and Payment. Service fees are electronically invoiced. The terms of which are set forth in the applicable purchase order, Customer shall pay the applicable non-refundable subscription fee specified in the applicable purchase order (“Subscription Fee”) for the Software, at such times and for such periods as set forth therein. If not otherwise specified in the applicable purchase order, all fees shall be due and payable within 15 days of the date of invoice.
4.3. Overdue Payments. If any amounts invoiced are not received by NeuraLegion by the due date, then at NeuraLegion’s discretion, such charges may accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or NeuraLegion may condition future Services on other payment terms.
4.4. Suspension of Services. If any amounts invoiced are thirty (30) days or more overdue, NeuraLegion may, without limiting other rights and remedies, suspend the Customer’s access to the Services and the AIAST Platform until such amounts are paid in full.
4.5. Payment Disputes. If the applicable Service fees are under reasonable and good-faith dispute, and in NeuraLegion’s judgment Customer is diligently cooperating to resolve such dispute, NeuraLegion will not exercise its suspension rights under Section 4.3 or Section 4.4 above.
4.6. Taxes. Unless otherwise agreed in writing, NeuraLegion’s fees do not include any taxes, levies, duties or other similar government assessments of any nature, including but not limited to value added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with the Services under this Agreement. If NeuraLegion has the legal obligation to pay or collect any Taxes for which the Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by the Customer, unless the Customer provides NeuraLegion with a valid tax exemption certificate authorized by the appropriate taxing authority. NeuraLegion is solely responsible for taxes assessable against NeuraLegion based on its income, property and employees. Customer agrees to indemnify and reimburse NeuraLegion for any Customer Taxes required to be paid by NeuraLegion to any tax authorities, which were not previously collected from Customer.
5. IP RIGHTS
5.1. Trademarks and Tradenames. The names “NeuraLegion”, “AIAST”, “AIAST” and the NeuraLegion and AIAST logos and graphics that are trademarks of NeuraLegion, and may not be used by the Customer without the prior express written permission of NeuraLegion, in its sole discretion.
5.2. Reservation of NeuraLegion’s Rights. Subject to the limited access rights to the AIAST Platform expressly granted in this Agreement, NeuraLegion reserves all rights, title and interest in and to the Services, Software, AIAST Platform and/or Documentation, and any improvements thereto (including, without limitation, if made in connection with any additional services provided by NeuraLegion to Customer pursuant to Section 2.5 or otherwise), including all intellectual property rights, evidenced by or embodied in and/or attached, connected or otherwise related thereto. Intellectual property rights as used in this Agreement include, but are not limited to, copyright, patent, trademark, trade secret and all other proprietary rights, whether registered or unregistered. No rights are granted to the Customer other than those expressly set forth herein.
5.3. Customer’s Data. As between NeuraLegion and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data, and no rights are granted to NeuraLegion therein other than as needed for the provision of the Services.
5.4. Reports. Any Report(s) provided through the use of the Services hereunder are and will be owned exclusively by Customer.
5.5. Customer’s Recommendations. Any and all improvements to the Services, Software, AIAST Platform and/or Documentation based on recommendations, enhancements, requests or suggestions provided by or on behalf of the Customer, are and shall be owned solely by NeuraLegion. To the extent such rights may not be assigned to NeuraLegion under applicable law, NeuraLegion shall have a royalty-free, worldwide, transferable, irrevocable and perpetual license to use or incorporate into the Services, Software, AIAST Platform and/or Documentation such recommendations, enhancements, requests or suggestions.
6.1. Each party (“Recipient”) acknowledges that the Confidential Information of the other party (“Disclosing Party”) constitutes valuable information and Recipient agrees that it shall use Confidential Information of the Disclosing Party solely in accordance with the provisions of this Agreement and in connection with use of the Services hereunder, and will not disclose, or permit to be disclosed, the same, directly or indirectly, to any third party without Disclosing Party’s prior written consent. Recipient agrees to use its best efforts to protect the Confidential Information of the Disclosing Party from unauthorized use and disclosure.
6.2. Recipient acknowledges that, in the course of its performance of this Agreement, it may be disclosed or otherwise obtain access to certain information that Disclosing Party deems proprietary and confidential. Without derogating from any other provision of this Agreement, Recipient agrees to make reasonable commercial efforts to treat all such information as proprietary and confidential information of Disclosing Party, and will not disclose the same, directly or indirectly, to any third party without Disclosing Party’s prior written consent.
6.3. The confidentiality information in this Section 6 above shall not apply to any information that is: (a) publicly available, (b) already in Recipient’s possession and not subject to a confidentiality obligation, (c) obtained by Recipient from third parties without restrictions on disclosure, (d) independently developed by Recipient without reference to Disclosing Party’s information, or (e) required to be disclosed by order of a court or other governmental entity, provided Recipient will give Disclosing Party prompt notice of any such legal or governmental demand (to the extent permissible under the law) and reasonably cooperate with Disclosing Party in any effort to seek a protective order or otherwise to contest such required access, at Disclosing Party’s expense.
7. DATA MANAGEMENT
7.1. Customer Responsibility. Customer is solely responsible for the Customer Data. NeuraLegion is not responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which NeuraLegion acquired any Customer Data.
7.2. NeuraLegion Access. NeuraLegion will not access the Customer Environment other than and to the extent needed for the provisions of the Services and the conduct of its undertakings pursuant to this Agreement. Specifically, the Customer Data shall not be copied by NeuraLegion, provided that Reports may refer to certain systems, software, applications, data, tools, or any other information contained in the Customer Environment. Customer agrees that NeuraLegion may collect and use technical and statistical information gathered as part of the Services (which, for clarity, will never include personal identified data), which will be owned by NeuraLegion and may be used by it to conduct the Services (including for the purpose of producing Reports), to provide customized services to Customer (as may be separately agreed), to provide the Software’s machine learning capabilities and in order to improve its Services, Software, AIAST Platform and/or Documentation.
7.3. Legal Requirements. NeuraLegion will not give any third party access to Customer Data. Notwithstanding the foregoing, NeuraLegion may provide access to Customer’s Data if required by applicable law or regulation or governmental authority.
7.4. Privacy. Without derogating from, and subject to the provisions of Section 8, Customer is not permitted to include any nonpublic personal information, any personally identifiable information and/or any other data that is subject to any privacy laws, rules, regulations or other in the Customer Data. The inclusion of such data and information in the Customer Data is a material breach of this Agreement, at the sole risk of Customer.
8. WARRANTIES; LIMITATION OF LIABILITY
8.1. THE AIAST PLATFORM AND ALL SERVICES, DOCUMENTATION AND/OR REPORTS PROVIDED BY NEURALEGION ARE FURNISHED BY NEURALEGION AND ACCEPTED BY CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OF ANY KIND. ACCORDINGLY, TO THE EXTENT PERMITTED BY LAW, NEURALEGION MAKES NO WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF QUALITY, ACCURACY, TIMELINESS, SUITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, COMPLETENESS, TITLE, NON INFRINGMENT, UNINTERRUPTED PERFORMANCE, COMPATIBILITY, INTEGRATION, ETC. IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S USE (OR INABILITY TO USE) OF THE AIAST PLATFORM, THE SERVICES, THE DOCUMENTATION AND/OR ANY REPORT, ALL OF WHICH ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY NEURALEGION.
WITHOUT LIMITATION OF THE FOREGOING:
(A) CUSTOMER UNDERSTAND THAT ASSESSING COMPUTER SECURITY IS HIGHLY COMPLEX AND CHANGEABLE, AND NEURALEGION MAKES NO WARRANTY THAT THE SERVICES AND/OR ANY REPORT WILL FIND EVERY VULNERABILITY IN CUSTOMER’S ENVIRONMENT, OR THAT ANY SOLUTIONS SUGGESTED OR ADVICE PROVIDED BY NEURALEGION WILL BE COMPLETE OR ERROR-FREE;
(B) NEURALEGION MAKES NO WARRANTY THAT THE PLATFORM AND ALL SERVICES, DOCUMENTATION AND/OR REPORTS WILL ALWAYS BE AVAILABLE, THAT THEY WILL BE ERROR FREE, SECURE OR UNINTERRUPTED, THAT THEY ARE FREE FROM VIRUSES OR HARMFUL COMPONENTS OR THAT THEY WILL MEET CUSTOMER’S REQUIREMENTS;
(C) NEURALEGION MAKES NO WARRANTY AS TO THE ACCURACY, RELIABILITY, COMPLETENESS, OR CONTENTS OF ANY CONTENT AND INFORMATION FOUND ON THE AIAST PLATFORM AND/OR GENERATED AS A RESULT OF THE USE OF THE SERVICES (INCLUDING, WITHOUT LIMITATION, IN ANY REPORT AND/OR DOCUMENTATION); AND
(D) NEURALEGION SHALL NOT BE LIABLE FOR ANY DAMAGES TO THE CUSTOMER DATA OR OTHER SYSTEMS, SOFTWARE, APPLICATIONS, TOOLS, EQUIPMENT, DATA, OR ANY OTHER INFORMATION SUFFERED AS A RESULT OF USING (OR INABILITY TO USE) THE SERVICES, AND IT IS THE SOLE RESPONSIBILITY OF CUSTOMER TO HAVE ADEQUATE PROTECTION AND BACKUP OF SUCH CUSTOMER DATA OR OTHER SYSTEMS, SOFTWARE, APPLICATIONS, TOOLS, EQUIPMENT, DATA, OR ANY OTHER INFORMATION; AND CUSTOMER (OR ANYONE ON ITS BEHALF) WILL NOT MAKE ANY CLAIM AGAINST NEURALEGION FOR LOST DATA, RE-RUN TIME, INACCURATE OUTPUT, WORK DELAYS, OR LOST PROFITS RESULTING FROM THE USE OF (OR INABILITY TO USE) THE AIAST PLATFORM AND ALL SERVICES, DOCUMENTATION AND/OR REPORTS PROVIDED BY NEURALEGION.
EXCEPT AS OTHERWISE STATED IN SECTION 8.2 BELOW, CUSTOMER SHALL BEAR THE ENTIRE RISK AS TO THE USE (OR INABILITY TO USE) OF THE AIAST PLATFORM AND ALL SERVICES, DOCUMENTATION AND/OR REPORTS.
8.2. Limitation of Liability.
(A) NEURALEGION LIABILITY UNDER THIS AGREEMENT IS LIMITED TO THE CUSTOMER ONLY, AND NEURALEGION SHALL NOT BE RESPONSIBLE HEREUNDER TO ANY THIRD PARTY.
(B) IN NO EVENT WILL NEURALEGION BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS, EVEN IF NEURALEGION IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
(C) NEURALEGION’S LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (IF ANY) WILL NOT EXCEED THE PURCHASE PRICE OF THE SERVICE FEE(S) ACTUALLY PAID IN THE AGGREGATE BY THE CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
(D) THE FOREGOING DIRECT DAMAGES LIMITATION LIABILITY CAP DOES NOT APPLY TO A CLAIM BY CUSTOMER TO THE EXTENT IT IS: (I) BASED ON WILLFUL MISCONDUCT BY NEURALEGION; OR (II) BASED ON A CLAIM BY A THIRD PARTY INVOLVING AN INTELLECTUAL PROPERTY RIGHT INFRINGEMENT UNDER THE INDEMNIFICATION OBLIGATIONS OF SECTION 10. If applicable law limits the application of the provisions of this Section 8.2, NeuraLegion’s liability will be limited to the maximum extent permissible.
(E) THE DISCLAIMERS OF WARRANTY AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT ARE FUNDAMENTAL TERMS OF THIS AGREEMENT, AND THE PARTIES WOULD NOT HAVE ENTERED INTO THIS CBT AGREEMENT WITHOUT THEIR INCLUSION.
8.3. No action arising out of any breach or claimed breach of this Agreement or transactions contemplated by this Agreement may be brought by either party more than one (1) year after the cause of action has accrued. For purposes of this Agreement, a cause of action will be deemed to have accrued when a party knew or reasonably should have known of the breach or claimed breach.
9. TERM AND TERMINATION
9.1. Term. This Agreement shall commence on the Effective Date and unless terminated earlier as provided below, will remain in full force and effect until the end of the first anniversary following the Effective Date (the “Initial Term”), after which it will automatically renew for successive terms of the same length as the Initial Term (each a “Renewal Term”), unless either Customer or NeuraLegion notifies the other of their intent not to renew at least thirty (30) business days prior to the upcoming Renewal Term, unless otherwise terminated pursuant to other provisions of this Agreement. All Renewal Terms are charged at NeuraLegion’s then-current rates unless otherwise agreed by the parties. The Initial Term and any Renewal Terms are together referred to herein as the “Term”.
9.2. Termination for Cause. Without derogation from the right of NeuraLegion to suspend or discontinue the availability of the AIAST Platform and/or the Services as set forth above, either NeuraLegion or Customer may terminate this Agreement for cause and without judicial resolution (i) upon fourteen (14) days written notice to the other party of a material breach, unless the other party cures such breach before the end of such fourteen (14) day period, or (ii) if the other party becomes the subject of a petition in bankruptcy, or any other proceeding related to insolvency, receivership, liquidation or assignment for the benefit of creditors.
9.3. Payment and Refund Upon Termination. Termination for any reason does not relieve the Customer of the obligation to pay any fees payable to NeuraLegion for the period prior to the effective date of termination and such unpaid fees shall be payable to NeuraLegion not later than seven (7) days following the effective date of termination. Upon termination due to NeuraLegion material breach of this Agreement under Section 9.2 above, NeuraLegion shall refund Customer any prepaid fees (if any) covering any Sessions not used by Customer or the remaining pro-rata subscription after the effective date of termination.
9.4. Effect of Termination. Termination of this Agreement shall not prevent either party from pursuing all available legal remedies. The parties’ rights and obligations under this Agreement that by their nature are intended to survive termination of this Agreement (including without limitation, the provisions of the last sentence of Section 2.5 as well as Sections 5, 6, 7.1, 7.4, 8, 9.4, 10 and 11 of this Agreement) shall do so. Upon the expiration or termination of this Agreement, Customer shall immediately cease using the Services. In addition, upon a Disclosing Party request, the Recipient shall certify to Disclosing Party within ten (10) days following its written request that Recipient has destroyed or has returned to Disclosing Party all copies of any Confidential Information of Disclosing Party held by Recipient.
10.1. By NeuraLegion. NeuraLegion shall defend, indemnify and hold harmless Customer from and against all claims, liability, and expenses, including reasonable attorneys’ fees, arising out of a claim brought by a third party claiming that the Services provided by NeuraLegion infringes the intellectual property of such third party (“Claim”) and will pay any final judgments awarded or settlements entered into, provided that Customer notifies NeuraLegion promptly in writing of the discovery of any such Claim, and gives NeuraLegion the authority to proceed as contemplated herein. NeuraLegion will have the exclusive right to control and defend any such Claim and make settlements thereof at its own discretion either in or outside of any court proceeding, and Customer may not settle or compromise such Claim, except with prior written consent of NeuraLegion. SECTION 8.2(D AND E) AND THIS SECTION 10.1 STATE NEURALEGION’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY VIOLATION OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES.
10.2. By Customer. Customer shall defend, indemnify and hold harmless NeuraLegion (and any of its parents, subsidiaries, affiliates, directors, officers, employees, agents, suppliers and licensors (and their respective directors, officers, employees, and agents)) from and against all claims, liability, and expenses, including reasonable attorneys’ fees and legal fees and costs, arising out of: (a) Customer Data; (b) Customer Taxes: (c) Customer’s use of the Services and/or access to the AIAST Platform in breach of any provision of this Agreement. NeuraLegion reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer and Customer agrees to cooperate as fully as reasonably required in the defense of any claim.
11.1. Governing Law. This Agreement is made in accordance with and shall be governed and construed under the laws of the State of Israel (without the conflict of laws rules). Customer agrees to submit to the jurisdiction of the state of Israel and hereby waives any objections to the jurisdiction and venue of such courts. The parties expressly waive the United Nations Convention for the International Sale of Goods.
11.2. Force Majeure. Except for Customer’s payment obligations hereunder, neither party shall be liable to the other party for any delay or failure to perform its obligations hereunder due to causes beyond its reasonable control (each a “Force Majeure”). Performance times shall be considered extended for a period of time equivalent to the time lost because of any such delay caused by a Force Majeure.
11.3. Non-Solicitation. During the term of this Agreement and for twelve (12) months after the termination or expiration of this Agreement for any reason, neither party shall, directly or indirectly solicit, or endeavor to entice away from the other party or otherwise interfere with the relationship of the other party with any employee or sub-contractor of that party.
11.4. Independent Contractors. NeuraLegion and Customer are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party shall be solely responsible for all of its employees and agents and its labor costs and expenses arising in connection with this Agreement.
11.5. Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
11.6. Severability. In the event that one or more of the provisions of this Agreement is found to be illegal or unenforceable under any valid controlling law, this Agreement shall not be rendered inoperative but the remaining provisions shall continue in full force and effect. In the event the legality of any provision is brought into question because of a decision by a court of competent jurisdiction, NeuraLegion, by written notice to Customer, may revise the provision in question or may delete the provision entirely so as to comply with the decision of said court.
11.7. Notices. All notices (including address change notices) will be in writing and, except as otherwise provided herein, will be deemed given when delivered personally or two days after they are sent by first class mail or prepaid express courier to the other party at its respective address as set forth in the applicable purchase order, or to any address provided by such party in writing for this purpose from time to time.
11.8. Headings. The article and section titles and headings in this Agreement are intended solely for convenience of reference and are not intended to explain, modify or place any construction or limitation upon any provision of this Agreement.
11.9. No Third Party Beneficiaries. Nothing in this Agreement is intended to, or shall, create any third-party beneficiaries, whether intended or incidental, and neither party shall make any representations to the contrary.
11.10. Assignment. This Agreement shall be binding upon Customer, its successors, legal representatives and assignees. Customer may not assign this Agreement (“Assignment”) without the prior written consent of NeuraLegion. The term “Assignment” includes the sale, disposition or other transfer of the legal rights under this Agreement, whether by operation of law or otherwise. NeuraLegion may assign this Agreement to any purchaser of all or substantially all of its shares or assets, or in the event of its merger, consolidation, change of control, spin-off, or similar transaction. In the event of Customer’s merger, or consolidation or change of control or spin-off or a similar transaction, NeuraLegion shall have the right to immediately terminate the Agreement.
11.11. Entire Agreement. This Agreement, as amended, constitutes the entire agreement between Customer and NeuraLegion and supersedes all previous and/or inconsistent agreements, negotiations, representations and promises, written and oral, regarding the subject matter (including, without limitation, any online terms and conditions). Except as expressly provided in this Agreement, no modification, course of conduct, amendment, supplement to or waiver of this Agreement or any provisions hereof shall be binding upon the parties unless made in writing and duly signed by both parties. At no time shall a failure or delay in enforcing any provisions, exercising any option or requiring performance, be construed to be a waiver.
11.12. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.