Terms & Conditions
Welcome to CYFOX, an AI-based XDR solution that reduces the complexity of managing multiple cybersecurity systems by consolidating several solutions and security tools into a single platform as further explained at: https://cyfox.com/ (the “Service”).
The Service is developed and operated by CYFOX Technologies Ltd. (“CYFOX”), and may be provided directly to you by CYFOX or by other third parties, such as CYFOX partners (“Partner(s)”) or CYFOX distributers (“Distributer(s)”) that have entered into an agreement with CYFOX (collectively, the "Company", "we", "us" and "our").
Please carefully read the following terms and conditions, including our Data Processing Addendum (“DPA”), the Service Privacy Policy and any document referenced herein (the "Terms"). By accessing or using the Service in any way, or by registering as a user for the Service (in each case, a "Customer", "you"), you agree to be bound by these Terms and you signify that you have read and understood them. If you do not agree to these Terms, you may not use the Service in any way.
1. Definitions
1.1. “CYFOX Technology” means CYFOX's products, technology tools, product designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, trade secret, know-how, methodology, platforms, apps, application programming interface (“API”), and any other tools or programs used by or for CYFOX on its behalf with regard to its Service, and any related IP Rights related thereto throughout the world and also including any derivatives, improvements, translations, enhancements or extensions of or to the foregoing.
1.2. Customer’s Content means information: (a) that identifies or depicts the Service Users’ content that is controlled or monitored through the Service, (b) all data or information uploaded, transmitted, shared or generated by Users to the Service and that is being processed through the Service.
1.3. “Customer’s Data” means Customer’s Content and Output Data collectively.
1.4. “Delivery” means making the Service available to Customer via installation at Customer premises.
1.5. “Order Form” means the order form that Customer has accepted or signed (including, but not limited to, by way of Customer issuing a purchase order pursuant to the quote or proposal provided by Company), in each case specifying, among others, the Customer’s details, the duration of the provision of the Service to Customer, the Fees (as defined below) and payment terms applicable to these Terms, the usage metrics, parameters and capacity limitations for the Customer’s use of the Service, the integrations supported, timetables and rollout plan. Such Order Form is incorporated by reference to these Terms and constitutes an integral part of it.
1.6. “Output Data” means the various reports, alerts, analytics, content, documentation and other types of information and data that the Service may generate, provide or make available to Customer.
1.7. “Service Data” means (a) the data collected and processed in the course of providing the Service, about the use of the Service, including suspicious files, de-identified data, bandwidth utilization, (b) 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 Service, performance of the Service, its compatibility and interoperability, and (c) any personal data processed for the proper administration of the Service. Service Data expressly excludes Output Data.
1.8. “Support Services” means Service updates, maintenance, remote technical support for technical questions, problems and inquiries regarding the Service as agreed under the Order Form and the Service Level Agreement (“SLA”).
1.9. “Term” means the period of these Terms as specified in section 11 below.
1.10. “Users” means Customer’s employees, agents, contractors and others, who have been authorized or enabled by Customer to use the Service.
2. License & Services
2.1. SaaS. Subject to these Terms and applicable Order Form, including without limitation, Customer’s payment of the applicable fees hereunder, Customer may, during the applicable Term, access and use the Service flagged as “SaaS” in the Order Form, solely for internal use, within your organization (the “Purpose”), on a non-assignable, non-exclusive and non-transferrable basis, pursuant to the usage parameters, limits and metrics specified in the Order Form.
2.2. License. Subject to these Terms and applicable Order Form, including without limitation, Customer’s payment of the applicable fees hereunder, Company shall grant Customer, a limited, non-assignable, non-exclusive and non-transferrable and not sublicense-able right to install, access, use the Service flagged as “On-Prem” in the Order Form and Output Data during the applicable Term solely for the Purpose and for internal use only, pursuant to the usage parameters, limits and metrics specified in the Order Form.
2.3. Customer’s right to use the Service is expressly limited to the number of end users, workstations, servers or other such limitations as indicated by the Order Form. Only object code, machine-readable versions of the software are licensed or provided access to Customer hereunder, and Customer has no rights under these Terms to the source code versions of the software.
2.4. The Service’s license or rights of use shall become effective upon Delivery (or upon acceptance of these terms in case of SaaS) of the Service and shall remain in force unless terminated pursuant to Section 11 of these Terms. This right does not include permission to grant sub-licenses or otherwise transfer such rights.
2.5. Upon Delivery (where applicable), Customer may make a reasonable number of copies of the Service’s software for back-up, archival, and disaster recovery purposes during the Subscription Term. The Service software must be de-installed and destroyed at the end of the Subscription Term.
2.6. Customer covenants that Customer and its Users will use the Service only in compliance with all applicable laws and regulations, these Terms and any policies or instructions issued by Company.
2.7. Customer shall be permitted to designate the Users of the Service, provided that such usage is in accordance with these Terms. Customer must ensure that its Users fully comply with these Terms. Customer shall be liable to Company 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. Customer shall not authorize access to or permit use of the Service by persons other than its Users. Company may, at any time and without any liability to Customer, suspend and/or terminate Customer or any User’s access to the Service in the event Company reasonably believes that the Customer or such User has violated any provision of these Terms.
2.8. During the Term, Customer may change the usage parameters, capacity limits and other metrics applicable to its use of the Service by mutual written agreement (email being sufficient) with Company. Where such changes are agreed, they are incorporated by reference into the Order Form and apply pursuant to the conditions mutually agreed to, including with respect to the new Fees agreed to in light of the change.
2.9. Customer and its Users are responsible for maintaining the confidentiality of their Service login credentials. Customer is solely responsible for any decision-making based on the Output Data, and for all consequences resulting therefrom.
3. Installation (only applicable to On-Prem)
3.1. Installation. Customer will provide Company with reasonable access to the installation site and will allocate sufficient personnel to assist with the installation and integration.
3.2. Customer Responsibility. Customer will assign a knowledgeable representative to act as project manager to provide information, answer questions and make decisions on behalf of Customer. Customer is responsible for installation of any local area network, host computer and telephone system connectivity required to support the Installation. Prior to Installation, Customer is responsible for providing a stable operating environment (network, host computer, servers, telephone system, etc.). In no event shall Company be liable for any failure or delay caused by events beyond its control, including, without limitation, the failure of Customer to furnish the necessary information required by Company to fulfill these Terms or a completed site preparation or failures or substitutions of Customer’s existing system.
3.3. Customer Representative. Customer will assign a representative for receiving Service alerts, if included as part of the Service. Customer is responsible for providing correct and contact information, updating it and maintaining it. In no event shall Company be liable for any failure or delay caused by events beyond its control, including, without limitation, the failure of Customer to maintain or provide the correct contact information required to fulfill this Agreement.
4. User Restrictions
4.1. Customer and its Users shall not:
4.1.1. distribute, rent, lease, sublicense, transfer and/or assign the Service, the access to or use thereof, or any part thereof to any third party, with or without consideration;
4.1.2. render any services to third parties using the Service;
4.1.3. remove, or in any manner alter, any product identification, proprietary, trademark, copyright or other notices in the Service;
4.1.4. allow any third parties to use the Service;
4.1.5. interfere with, burden or disrupt the Service’s functionality;
4.1.6. make any copies of the Service, its content or any portions thereof.
4.1.7. 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;
4.1.8. download content from the Service for any purpose, unless explicitly stated by Company that such action is permitted;
4.1.9. breach the security of the Service, identify, probe or scan any security vulnerabilities in the Service other than such activities performed in mutual agreement with Company;
4.1.10. work around any technical limitations of the Service, or use any tool to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Service;
4.1.11. send any virus, worm, Trojan horse or other malicious or harmful code or attachment;
4.1.12. use robots, crawlers and similar applications to scrape, harvest, collect or compile content from or through the Service.
4.1.13. 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
4.1.14. access and 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.
4.2. Any such improper use of the Service will result in irreparable harm to Company for which monetary damages would be inadequate.
4.3. Company has no obligation to monitor that Customer’s use of the Service complies with these Terms but may elect to do so. Company may suspend the provision of the Service to the Customer upon notice and good-faith discussion with the Customer, if Company reasonably believes that the Customer is in violation of the foregoing in a manner detrimental to Company or to the proper operation of the Service.
4.4. CUSTOMER MAY NOT USE THE SERVICE FOR ANY ACTIVITY THAT CONSTITUTES, OR ENCOURAGES CONDUCT THAT WOULD CONSTITUTE, A CRIMINAL OFFENSE, GIVE RISE TO CIVIL LIABILITY OR OTHERWISE VIOLATE ANY APPLICABLE LAW.
5. Fee
Where applicable, In consideration for the Customer’s access or license to use the Service, Customer will pay the fees specified in the Order Form (“Fee(s)”) according to the payment terms specified therein. The Fees are non-refundable. The Fees are exclusive of any excise, sales tax, VAT, withholding tax or other governmental charges or transaction charges. Customer shall bear all such taxes and charges.
6. Intellectual Property
6.1. All rights, title and interest in the Service and all CYFOX Technology, including any and all IP Rights related thereto, are the sole property of CYFOX. The Service is a proprietary offering of CYFOX, protected under copyright laws and international copyright treaties, patent law, trade secret law and other intellectual property rights of general applicability. The Service is offered or licensed to the Customer for use and access only in accordance with the terms of these Terms and is not sold or licensed in any other way. All rights in and to the Service or CYFOX Technology not expressly granted to Customer in these Terms are hereby reserved by CYFOX.
6.2. Except for Customer’s limited license to access and use the Service and the Output Data according to these Terms, these Terms does not grant or assign to Customer, any other license, right, title, or interest in or to the Service or CYFOX Technology, or the intellectual property rights associated with them. 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 Service Data, are and will remain at all times, owned by, or licensed, to CYFOX.
6.3. Customer acknowledges and agrees solely in connection with CYFOX's provision of the Service, Company is hereby granted a limited, revocable, nonexclusive, internal, and royalty-free license, solely during the Term to access Customer Data for the strict limited purposes of supporting Customer’s use of the Service as described herein.
6.4. Customer owns all right, title and interest in Output Data. Customer grants Company and its third-party service providers a license to use Customer Data strictly for the proper support of the Service to the Customer.
6.5. WE DO NOT CLAIM OWNERSHIP OVER CUSTOMER’S DATA. WHEN YOUR USE OF THE SERVICE INVOLVES CUSTOMER’S DATA, YOU REPRESENT AND WARRANT TO US THAT YOU ARE LAWFULLY PERMITTED TO HAVE US PROCESS THE CUSTOMER’S DATA FOR THE SUPPORT OF THE SERVICE TO YOU.
6.6. Customer may provide Company with Service Data about the Service’s experience of use, including information pertaining to bugs, errors, suspicious files 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. Customer hereby assigns all right, title and interest in and to the Service Data to CYFOX, including the right to make commercial use thereof, for any purpose CYFOX deems appropriate. The Customer is not entitled to any remuneration for the foregoing assignment or CYFOX’s use of the Service Data.
6.7. The Service uses or includes open source software components listed within the Service’s documentation[PC1] (“OSS”). To the extent so stipulated by the license that governs each OSS ("OSS License"), each such OSS is subject to its respective OSS License, not these Terms, and is licensed to you directly by its respective licensor, not sublicensed by us. If, and to the extent, an OSS License requires that these Terms effectively impose, or incorporate by reference, certain disclaimers, provisions, prohibitions or restrictions, then such disclaimers, provisions, prohibitions or restrictions shall be deemed to be imposed, or incorporated by reference into these Terms, as required, and shall supersede any conflicting provision of these Terms, solely with respect to the corresponding OSS which is governed by such OSS License
6.8. Customer may provide Company with Feedback, including information pertaining to bugs, errors and malfunctions of the Service, performance of the Service, content and accuracy 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. Customer hereby assigns, without charge, all right, title and interest in and to the Feedback to Company, including the right to make commercial use thereof, for any purpose Company deems appropriate.
7. Confidentiality
7.1. ”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, formulas, 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.
7.2. Each party will, and will cause each of its personnel and agents to: (a) not disclose the other party’s Confidential Information to any third party, (b) not use the other party’s Confidential Information for any purpose other than to perform its obligations or exercise its rights under these Terms, and (c) protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. Notwithstanding this Section, each party shall be able to disclose Confidential Information of the other party to its personnel and agents (including, without limitation, Users) who have a need to know for the Receiving Party to perform its obligations or exercise its rights under these Terms, provided such personnel or agents have been previously advised of the confidential nature of the information and have written obligations of confidentiality to the Receiving Party.
7.3. 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 from a third party who has the right to transfer or disclose said information, 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 shall 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.
8. Data and Privacy
8.1. Under the scope of these Terms, the Service provided by Company may involve processing of individuals’ personal data, which shall be governed by applicable data protection laws, the Service Privacy Policy and the Data Processing Addendum
8.2. Customer permits CYFOX to create and use metadata and de-identified data generated from Processed Customer’s Data, including data and bandwidth utilization and statistical or aggregated information (collectively, the “Metrics”), for any purpose CYFOX deems appropriate.
8.3. Customer acknowledges and agrees that Company may handle and use (by itself or by using trusted third-party service providers, the Customer’s Service Data and Output Data as follows:
8.3.1. To provide the Service to Customer, conduct administrative and technical activities necessary to maintain and provide the Service;
8.3.2. To bill and collect Fees, enforce these Terms and take any action in any case of dispute, or legal proceeding of any kind involving Customer with respect to the Service;
8.3.3. To prevent fraud, misappropriation, infringements, and other illegal activities and misuse of the Service;
Customer will not be entitled to any remuneration for all such uses.
8.5. The Service does not provide, and is not intended as, data back-up service. Customer is responsible for maintaining back-up copies of its Data.
9. Technical Support
To the extent mutually agreed upon in the applicable Order Form, during the Term, Company, either directly or with the assistance of other third parties, will endeavor to provide Customer technical support for technical questions, problems and inquiries regarding the Service, during its business days and hours, and pursuant to its then-applicable support scheme, hours and channels, as may be further detailed in the Service Level Agreement (“SLA”) Company will attempt to respond to Customer’s technical questions, problems and inquiries as soon as practicably possible. However, Company makes no warranties to any specific response-time or 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 Company, to reproduce malfunctions, including conducting diagnostic or troubleshooting activities, as Company reasonably requests. Customer agrees to cooperate and perform such requested modifications.
10. Term and Termination
10.1. These Terms will be in effect for the period specified in the Order Form, and shall renew in accordance with the renewal terms and cycles specified in the Order Form (the “Term”), if not otherwise terminated earlier pursuant to this Section 11 or if a Party has given a notice of non-renewal at least thirty (30) days prior to the end of the period.
10.2. Notwithstanding the above, either Party may terminate these Terms:
10.2.1. In the event of a material breach of these Terms 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 Terms immediately upon notice to the other Party;
10.2.2. If the terminating party is required to do so by law;
10.2.3. 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.
10.3. Immediately upon termination of these Terms:
10.3.1. CYFOX may terminate Customers’ account on the Service and delete the Customer’s Data (if stored) from its systems;
10.3.2. Customer shall cease any and all use of the Service;
10.3.3. Customer will be charged for all then-outstanding Fees (if any). In the event of termination due to a material breach by Customer, Customer shall be required to pay the Fees due for the full Term of these Terms;
10.4. Sections in these Terms that by their purpose of nature should survive termination of these Terms, will so survive.
11. Warranties, Disclaimers & Limitation of Liability
11.1. Each party represents and warrants that it has full right, power, and authority to agree to these Terms and to perform its obligations and duties under the Terms, and that the performance of such obligations and duties does not and will not conflict with or result in a breach of any other agreement of such party or any judgment, order, or decree by which such party is bound. Each party shall use the Service only for lawful purposes and in accordance with these Terms. Each party will comply with all applicable laws and regulations in its performance and use under these Terms and, in the event of a failure to comply by a party, the other party will have the right to suspend performance hereunder or terminate these Terms.
11.2. Customer represents and warrants that: (a) its use of the Service, including any Customer Content provided by Customer for use with the Service or handling by Company, will: (i) comply with any applicable law or regulation, (ii) not cause a breach of any agreement with or rights of any third party and (iii) not unreasonably interfere with use of services offered to third parties; and (b) it shall use the Service strictly in accordance with these Terms and other written instructions (e.g., product documentation, release notes, etc.) provided by Company. In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Company will have the right to suspend immediately any of the Service to prevent harm to Company or its business. If practicable, Company will provide notice and opportunity to cure. Once cured, in Company’s reasonable discretion, Company will use reasonable efforts to promptly restore the Service.
11.3. Company will endeavor to have the Service operate properly during the Term. However, as the Service may rely on software, infrastructure, servers, and networks outside of its control, it cannot 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.
11.4. If Company 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 these Terms.In addition, where applicable, the Customer acknowledges that the Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control. Company shall provide an advanced notice by e-mail of any scheduled Service disruption.
11.5. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 12, ALL CYFOX PRODUCTS AND SERVICES PROVIDED HEREUNDER ARE PROVIDED SOLELY ON AN “AS IS” BASIS. COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, IN CONNECTION WITH THESE TERMS OR THE SERVICE. COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
11.6. CUSTOMER SHALL BEAR THE SOLE AND EXCLUSIVE RESPONSIBILITY FOR COMPLYING WITH ANY APPLICABLE LAWS REGARDING ITS USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY LAWS AND REGULATIONS REGARDING THE PROTECTION OF INTELLECTUAL PROPERTY WITH REGARD TO THE CUSTOMER CONTENT OR ITS USERS UPLOAD TO AND PROVIDE TO THE SERVICE, OR PERSONAL INFORMATION PROCESSED VIA OR IN CONNECTION WITH THE SERVICE. COMPANY TAKES NO RESPONSIBILITY FOR ANY CLAIM WHICH MAY ARISE OUT OF OR IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICE OR ANY CONTENT USED OR UPLOADED TO THE SERVICE IN VIOLATION OF ANY APPLICABLE LAW.
11.7. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT IN THE EVENT OF INTENTIONAL MISCONDUCT OR BREACH OF COMPANY’S CONFIDENTIALITY OBLIGATIONS, COMPANY, 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 THESE TERMS, ANY USE OF, OR THE INABILITY TO USE THE SERVICE OR THE OUTPUT DATA, ANY RELIANCE UPON THE OUTPUT DATA OR ANY ERROR, INCOMPLETENESS, INCORRECTNESS OR INACCURACY OF THE SERVICE OR THE OUTPUT DATA.
11.8. 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 COMPANY (INCLUDING ITS RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON ITS BEHALF), FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS, THE SERVICE OR THE CUSTOMER'S DATA, SHALL BE LIMITED TO THE FEES PAYABLE TO COMPANY FOR THE SERVICES IN THE PRECEDING 12 MONTHS PRIOR TO THE EVENT PURPORTEDLY GIVING RISE TO THE CLAIM OCCURRED.
12. Indemnification
12.1. Customer shall defend, indemnify and hold harmless Company and its directors, officers, employees, subcontractors (“Company Indemnitee”), upon Company’s request and at Customer’s expense, from, and against, any damages, liabilities, loss, costs, expenses and payments, including, but not limited to, reasonable attorney’s fees and legal expenses, arising from any third-party complaint, claim, suit, action, arbitration, or proceeding brought against a brought against a Company Indemnitee relating to: (a) a breach or alleged breach by Customer of any of its representations, warranties, covenants or obligations hereunder; (b) infringement or misappropriation of any Intellectual Property rights by Customer; (c) any negligence or willful misconduct of Customer or its Users or other representatives; or (d) any claims in connection with the Customer Data.
12.2. If Company 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 Company 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. Company 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.
13. Governing Law and Jurisdiction
13.1. Regardless of Customer’s jurisdiction of incorporation, the jurisdiction where it engages in business, or access the Service from, these Terms 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 these Terms or the Service, shall be submitted to the sole and exclusive jurisdiction of the competent court in the Tel Aviv district in Israel. Subject to Section 14.2 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.
13.2. Notwithstanding the foregoing, Company may also lodge a claim against Customer: (a) pursuant to the indemnity clause above, in any court adjudicating a third party claim against Company; and (b) for interim, emergency or injunctive relief in any other court having general jurisdiction over Customer.
13.3. The Parties will use reasonable efforts to resolve any dispute arising out of these Terms through discussion between the appropriate personnel from each Party. If Parties are unable to resolve the dispute, either Party may escalate the dispute to its executives. If an executive level meeting fails to resolve the dispute within thirty (30) days after escalation, either Party may seek any available legal relief. This provision will not affect either Party’s right to seek injunctive or other provisional relief at any time.
14. Miscellaneous
14.1. Assignment. Customer may not assign these Terms without obtaining Company’s prior written consent. Any purported assignment without Company’s prior written consent is void. To the greatest extent permissible by law, Company 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 a third-party, upon a merger, acquisition, change of control or the sale of all or substantially all of Company’s equity or assets. By virtue of such assignment, the assignee assumes Company’s stead, including all right, duties, liabilities, performances and obligations hereunder, and Company shall be released therefrom.
14.2. 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.
14.3. Subcontracting. Company may subcontract or delegate the performance of its obligations under these Terms, 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 these Terms.
14.4. Complete Terms and Severability. These Terms 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 these Terms 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. These Terms may be modified or amended only in writing, signed by the duly authorized representatives of both Parties.
14.5. 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. Either Party waiver of such breach, will not be construed as a waiver of subsequent breaches or as a continuing waiver of such breach.