Hunters SaaS License Agreement
This Agreement (the “Agreement”) is entered into on the date of last signature below, by and between Cyber Hunters Ltd./Inc.[please choose the appropriate entity], an Israeli company with principal place of business at 94th Yigal Alon St. Tel Aviv-Yafo, Israel 6789156 (“Company”) and [enter customer legal entity] a [_______] corporation with principal place of business at [__________________] (the “Customer”) (each, a “Party” and collectively, the “Parties”).
1. License and Services
Subject to the terms and conditions of this Agreement, Company hereby grants Customer a limited, non-exclusive, non-sublicensable, non-transferable and revocable license to remotely access and use, for internal purposes only, during the Term of this Agreement and the term of the applicable Order (as defined below), the Company’s proprietary cyber-security software, which is provided via cloud service, on a Software as a Service (SaaS) basis, including any and all improvements, corrections, updates, new releases and new versions (whether or not created as part of the Services (as defined below)) and any related documentation (“Solution”) as set forth in the order attached hereto as Exhibit A (“Initial Order”). To the extent any professional services are required for and requested by the Customer now or in the future, such services will be included in the Initial Order or described in an additional order(s) to be entered into, in writing, between the Parties (the “Services” and the “Additional Order(s)”, respectively). The Initial Order and any additional Order(s) shall be referred to, collectively as the “Order”. To the extent there is a conflict between the terms of an applicable Order and the terms of this Agreement, this Agreement shall control unless a Section of the applicable Order expressly states that it is intended to modify the terms of this Agreement.
Support and maintenance services are provided according to the Service Level Agreement attached hereto as Exhibit B (“SLA”).
In consideration for the Solution and the Services (if applicable), Customer shall pay to the Company for the Services the fees set forth in the applicable Order(s) (the “Compensation”). Unless otherwise specified in the applicable Order(s), all payments due under this Agreement shall be made in US$ and against an invoice issued in accordance with applicable law. Unless other payment terms are set out in the applicable Order(s), Company will submit invoices on an annual\monthly basis for all fees, charges and expenses under this Agreement, which are due and payable thirty (30) days from the invoice date. The Compensation calculation is based upon the use limitations set forth in the applicable Order, in the event that Customer exceed such use limitations in 3 consecutive months during the then current Term (the Initial Term or a Renewal Term), Company will notify Customer of such excess use, and the Customer will required to decide either (i) to decrees the excess use such that it will comply with the use limitations of the applicable Order for the remainder of the then current Term; or (ii) to upgrade the license such that the actual use will be in accordance with the upgraded license (the Compensation will be adjusted accordingly).
Customer shall reimburse Company for all reasonable and documented travel, per diem living, and other out-of-pocket expenses incurred in connection herewith.
All sums payable under this Agreement are exclusive of VAT, withholding tax and all other taxes, duties, levies, imports and like matters imposed by any governmental authority (collectively, “Taxes”) which, if applicable, shall be paid by the Customer at the rate and in the manner prescribed by law. The Customer shall hold the Company harmless for all Taxes which are levied or imposed under this Agreement. If applicable law requires the Customer to withhold any taxes levied on payments to be made pursuant to this Agreement (the “Withholding Tax”), the prices set out in this Agreement shall be adjusted to compensate for such Withholding Tax. Upon request, the Customer shall provide to the Company a certificate evidencing payment of any such taxes as indicated above. Any amounts payable by Customer hereunder which remain unpaid after the due date shall be subject to the payment of interest in an amount equal to one and one-half percent (1.5%) per month (or the highest amount permitted by law, if less), accruing from the due date until the amounts due and payable hereunder are paid to the Company in full.
4. Customer Account
The Solution may only be used through a Customer account (“Account”). Such Account may be accessed solely by Customer’s representatives who are explicitly authorized by Customer to use the Solution (“Permitted Users”). Permitted Users must provide accurate and complete information. Customer will ensure that the Permitted Users keep the Account login details secure at all times and comply with the terms and conditions of this Agreement; and will be fully responsible for any breach of this Agreement by a Permitted User. Unauthorized access or use of the Account or the Solution must be immediately reported to the Company.
5. Prohibited Uses
Except as specifically permitted herein, without the prior written consent of the Company, Customer must not, and shall not allow any Permitted User or any third party to, directly or indirectly: (i) copy, modify, create derivative works of or distribute any part of the Solution (including by incorporation into its products); (ii) sell, license (or sub-license), lease, assign, transfer, pledge, or share Customer’s rights under this Agreement with any third party; (iii) use any “open source” or “copyleft software” in a manner that would require the Company to disclose the source code of the Solution to any third party; (iv) disclose the results of any testing or benchmarking of the Solution to any third party; (v) disassemble, decompile, reverse engineer or attempt to discover the Solution’s source code or underlying algorithms; (vi) use the Solution in a manner that violates or infringes any rights of any third party, including but not limited to, privacy rights, publicity rights or intellectual property rights; (vii) remove or alter any trademarks or other proprietary notices related to the Solution; (viii) circumvent, disable or otherwise interfere with security-related features of the Solution or features that enforce use limitations; (ix) export, make available or use the Solution in any manner prohibited by applicable laws (including without limitation export control laws); and/or (x) transmit any malicious code (i.e., software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable or shut down a computer system or any component of such computer system) or other unlawful material in connection with the Solution.
6. Third Party Components
The Solution may use or include third party software, files, libraries or components that are subject to third party open source license terms. A list of such components will be provided on demand and may be updated from time to time. Requests in connection with the foregoing may be forwarded to: email@example.com
7. Mutual Warranties
Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law.
8. Intellectual Property Rights
The Solution is not for sale and is the Company’s sole property. All right, title, and interest, including any intellectual property rights evidenced by or embodied in, attached, connected, and/or related to the Solution and any and all improvements and derivative works thereof are and shall remain owned solely by Company or its licensors. This Agreement does not convey to Customer any interest in or to the Solution other than a limited right to use the Solution in accordance with the terms and conditions of this Agreement. Nothing herein constitutes a waiver of the Company’s intellectual property rights under any law.
If Company receives any feedback (e.g., questions, comments, suggestions or the like) regarding the Solution (collectively, “Feedback”), all rights, including intellectual property rights in such Feedback shall belong exclusively to Company and that such shall be considered Company’s Confidential Information and Customer hereby irrevocably and unconditionally transfers and assigns to Company without all intellectual property rights it has in such Feedback and waives any and all rights that Customer may have in respect thereto. It is further understood that use of Feedback, if any, may be made by Company at its sole discretion, and that Company in no way shall be obliged to make use of any kind of the Feedback or part thereof.
9. Limited Warranties
The Company represents and warrants that, under normal authorized use, the Solution shall substantially perform in conformance with its documentation. As the Customer’s sole and exclusive remedy and the Company’s sole liability for breach of this warranty, the Company shall use commercially reasonable efforts repair the Solution in accordance with the SLA. The warranty set forth shall not apply if the failure of the Solution results from or is otherwise attributable to: (i) repair, maintenance or modification of the Solution by persons other than the Company or its authorized contractors; (ii) accident, negligence, abuse or misuse of the Solution; (iii) use of the Solution other than in accordance with the Solution’s documentation; (iv) Customer’s failure to implement software updates provided by the Company specifically to avoid such failure; or (v) the combination of the Solution with equipment or software not authorized or provided by the Company. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOLUTION AND THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND COMPANY EXPRESSLY DISCLAIMS ALL EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, FITNESS FOR A PARTICULAR PURPOSE.
10. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF DATA, REVENUE, BUSINESS OR REPUTATION, THAT ARISES UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT RESULTS FROM THE USE OF, OR THE INABILITY TO USE, THE SOLUTION EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, COMPANY’S TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES AND LOSSES THAT ARISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT RESULT FROM CUSTOMER USE OF OR INABILITY TO USE THE SOLUTION, SHALL NOT IN ANY CIRCUMSTANCE EXCEED THE TOTAL AMOUNTS, IF ANY, ACTUALLY PAID BY CUSTOMER TO COMPANY FOR USING THE SOLUTION AND OR THE SERVICES WITHIN THE 6 MONTHS PRECEDING THE DATE OF BRINGING A CLAIM.
Company agrees to defend, at its expense, any third party action or suit brought against Customer alleging that the Solution, when used as permitted under this Agreement, infringes copyrights or trade secrets of a third party (“IP Infringement Claim”); and Company will pay any damages awarded in a final judgment against the Customer that are attributable to any such claim, provided that (i) Customer promptly notifies Company in writing of such claim; (ii) Customer grants Company the sole authority to handle the defense or settlement of any such claim, and (iii) provides Company with all reasonable information and assistance. Company will not be bound by any settlement that Customer enters into without Company's prior written consent.
If the Solution becomes, or in Company's opinion is likely to become, the subject of an IP Infringement Claim, then Company may, at its sole discretion: (a) procure for Customer the right to continue using the Solution; (b) replace or modify the Solution to avoid the IP Infringement Claim; or (c) Company may terminate this Agreement upon written notice to Customer and Company will refund Customer any amount pre-paid by Customer for the remaining unused period of the license.
Notwithstanding the foregoing, Company shall have no responsibility for IP Infringement Claims resulting from or based on: (i) modifications to the Solution made by a party other than Company or its designee;; or (ii) combination or use of the Solution with equipment, devices or software not supplied or authorized by Company or not in accordance with the documentation.
This Section states Company's entire liability, and Customer's exclusive remedy, for claims or alleged or actual infringement.
Customer shall defend, indemnify and hold harmless Company, its affiliates, and its and their respective officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including but not limited to attorney’s fees) arising from Customer's violation of any third party right, including without limitation any copyright, property, or privacy right. Without derogating from or excusing Customer's obligations under this Section, Company reserve the right (at Customer's own expense), but is not under any obligation, to assume the exclusive defense and control of any matter which is subject to an indemnification by Customer if Customer chooses not to defend or settle it. Customer agree not to settle any matter subject to indemnification without first obtaining Company's express written approval.
12. Term and Termination
This Agreement shall commence on the Effective Date and shall continue for a period of [__] months thereafter (the “Initial Term”). Following the end of the Initial Term, the Agreement will automatically extend for one year periods (each, a “Renewal Term”) unless either Party provides the other Party with a written notice of non-renewal at least sixty (60) days prior the end of the then current Term. The Initial Term and any Renewal Term, shall be referred to, collectively, as the “Term”.
Notwithstanding the generality of the foregoing, each Party may terminate this Agreement immediately, in any of the circumstances set forth herein: (i) the other Party has breached any material provision hereof and has failed to remedy such breach within 30 days of the date of receipt of a written notice; or (ii) a receiver is appointed or applied for with respect to the other Party or its property or a petition in bankruptcy is filed by or against the other Party, or it makes an assignment for the benefit of creditors which has not been dismissed within 60 days.
In the event of termination for any reason, whether initiated by the Company or the Customer, all Orders shall terminate as well and the Customer shall pay the Company any and all sums owing to the Company, together with any costs and expenses to which the Customer is committed, as of the date of such termination.
This Section 12 and Sections 7 (Warranties), 8 (Intellectual Property Rights), 9 (Limited Warranties) 10 (Limitation of Liability), 11 (Indemnification), 13 (Confidentiality) and 14 (Miscellaneous) shall survive termination of this Agreement.
Neither Party (the “Receiving Party”) shall disclose to third parties, nor use for any purpose other than for the proper use or provision of the Solution and/or Services any Confidential Information received from the other Party (the “Disclosing Party”) in whatever form under this Agreement any information pertaining to the Services and/or Solution without the prior written permission of Disclosing Party. “Confidential Information” shall mean all data and information, not made available to the general public, oral or written, that relates to the Disclosing Party’s past, present, or future research, development or business activities, information relating to services, developments, inventions, processes, plans, financial information, customer and supplier lists, forecasts, and projections, and also includes the terms and conditions of this Agreement. Receiving Party shall limit access to Confidential Information to those of Receiving Party’s personnel for whom such access is reasonably necessary for the proper performance of this Agreement. Such personnel shall be bound by written confidentiality obligations not less restrictive than those provided for herein. Receiving Party shall be responsible for any breach of this Agreement by any of Receiving Party’s personnel. Receiving Party shall protect the Confidential Information with the same degree of care, but no less than a reasonable degree of care, to prevent unauthorized disclosure or use of Confidential Information, as Receiving Party exercise in protecting Receiving Party’s own proprietary information. The aforementioned limitations shall not apply to Confidential Information which the Receiving Party can demonstrate: (i) was in Receiving Party’s possession prior to disclosure hereunder, provided that, immediately upon disclosure, Receiving Party have brought this fact to the attention of the Disclosing Party; or (ii) was in the public domain at the time of disclosure or later became part of the public domain without breach of the confidentiality obligations herein contained; or (iii) was disclosed by a third party without breach of any obligation of confidentiality; or (iv) is disclosed pursuant to administrative or judicial action, provided that Receiving Party shall use its best efforts to maintain the confidentiality of the Confidential Information. If only a portion of the Confidential Information falls under any of the above alternatives, then only that portion of the Confidential Information shall be excluded from the use and disclosure restrictions of this Agreement.
This Agreement, including any exhibits attached or referred hereto, represents the complete agreement concerning the subject matter hereof and may be amended only by a written agreement executed by both Parties. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by Customer but may be assigned by Company without restriction or notification. This Agreement shall be governed by and construed under the laws of the State of Israel, without reference to principles and laws relating to the conflict of laws. Customer agree to submit to the personal and exclusive jurisdiction of the courts located in Tel Aviv, Israel, and waive any jurisdictional, venue, or inconvenient forum objections to such courts. This Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. The Company will not be liable for any delay or failure to provide the Solution or Services resulting from circumstances or causes beyond the reasonable control of the Company. This Agreement may be executed in electronic counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same agreement.
HUNTERS SERVICE LEVEL AGREEMENT (SLA)
Service Provider reserves the right to change the terms of this SLA by providing Company with at least thirty (30) days prior written notice.
During the term of the Agreement, Service Provider will use commercially reasonable efforts to make the Service available with a Monthly Uptime Percentage (defined below) of at least 99.5% during monthly billing cycle (the "Service Commitment").
The following definitions apply to this SLA:
- "Downtime" or "Downtime Incident" means the time in which Service Provider's Service is unavailable to the Company as measured and determined solely by Service Provider based on its systems Downtime Incidents shall exclude: (i) planned downtime incidents announced in-advance by Service Provider, including without limitation, for periodic upgrade and maintenance, cyber attacks on Service Provider's collectors (hardware or virtual) within the Company's infrastructure (ii) network disruption between Company’s network and the software outside of Service Provider's control; (iii) Downtime Incidents that are caused by the SLA Exclusions specified below, and/or (iv) any time where Service Provider is awaiting information from the Company or awaiting Company confirmation that the software has been restored.
- "Downtime Period” means the number of minutes in a calendar month during which Service Provider's Service is unavailable to the Company due to Downtime Incident(s).
- "Monthly Uptime Percentage” means the monthly uptime expressed as a percentage, calculated based on the total number of minutes in a calendar month, minus the Downtime Period, divided by the total number of minutes in a calendar month.
The SLA does not apply to any: (a) features or services excluded from the Agreement (as specified in the associated Documentation); or (b) Downtime Incidents that: (i) are explicitly excluded under this SLA; (ii) are caused by factors beyond Service Provider’s reasonable control (e.g. any force majeure event, Internet access or related problems beyond Service Provider's reasonable control etc.); (iii) resulted from accident, negligence, abnormal physical or electrical stress, abnormal environmental conditions, abuse or misuse of the Service Provider’s software; (v) resulted from use of the Service Provider’s software other than in accordance with its manuals, specifications or documentation or in violation of the Agreement; (vi) resulted from Company's equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within Service Provider’s direct control); and/or (vii) resulted from the combination of the Service Provider’s software with equipment or software not authorized or provided by Service Provider or otherwise approved by Service Provider in the software's manuals, specifications or documentation.
Service Level Objectives:
Service Provider offers Service Level Objectives for the initial response to Company support tickets based on the severity of the Company impact. The ticket priority is based on the business impact as described in the table below.
|Initial Response||1 Business Day|
|Contact Frequency||2 Business Days|
|Initial Response||2 Business Days|
|Contact Frequency||1 Week|
In order for the service level objective to be achieved, the requestor is required to contact Service Provider’s support via email at firstname.lastname@example.org or web access via support.hunters.ai. Service Provider may, at any time update (subject to 30 days' prior notice) the communication methods to be used in order to submit the issue to Service Provider’s support team and requestor must provide Service Provider with all information, documentation, assistance and access as Service Provider might reasonably require, including, without limitation:
- application knowledge,
- listing of any output,
- detailed steps required to enable Service Provider to replicate the problem, and
- exact wording of error messages.
The technical support described above will only be provided with respect to SaaS version which is under support, and Service Provider shall not be required to correct any error that in Service Provider’s reasonable discretion resulting from:
- Any modifications of the SaaS that have not been approved by Service Provider in writing;
- Company's instructions, or installation or set up adjustments;
- Use of the SaaS other than as permitted in the software license agreement;
- Any fault in any equipment or programs used in conjunction with the SaaS, or other causes beyond the control of Service Provider; and/or
- Company's negligence or willful misconduct.
Service Provider's obligations hereunder are subject to the following:
- Company agrees to receive from Service Provider communications via e-mail, telephone, and other formats;
- Company's technical support contact shall cooperate with Service Provider at all time during the provision of technical support and maintenance services hereunder; and
- Company shall report to Service Provider all problems with the SaaS and shall implement any corrective procedures provided by Service Provider reasonably promptly after receipt.
HUNTERS SAAS TERMS OF SERVICE
THESE HUNTERS SAAS TERMS OF SERVICE (“AGREEMENT”) ARE A LEGAL AGREEMENT BETWEEN YOU (“CUSTOMER” OR “YOU”) AND CYBER HUNTERS LTD. AND/OR ITS AFFILIATES (“HUNTERS” “WE,” OR “US”) AND GOVERN YOUR USE OF AND ACCESS TO THE SERVICE (AS DEFINED BELOW).
BY INDICATING CONSENT ELECTRONICALLY, USING OR ACCESSING THE SERVICE, OR EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT, YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT AS OF THAT DATE (“EFFECTIVE DATE”). IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICE. IF YOU ARE USING THE SERVICE FOR A BUSINESS OR ENTITY, YOU REPRESENT AND WARRANT THAT THE BUSINESS OR ENTITY ACCEPTS THIS AGREEMENT AND THAT YOU HAVE THE AUTHORITY TO BIND THE BUSINESS OR ENTITY TO THIS AGREEMENT. CUSTOMER AND HUNTERS MAY EACH ALSO BE REFERRED TO AS A “PARTY” AND TOGETHER, THE “PARTIES”.
“Affiliate” means an entity controlling, controlled by, or under common control with a Party, where control means the power to direct the management or affairs of an entity or owning over 50% of the voting equity securities or other equivalent voting interests of an entity.
“Authorized Users” means individuals authorized by Customer to access and use the Service for Customer’s and its Affiliates' internal use, subject to the terms of this Agreement.
“Confidential Information” means all non-public information disclosed to a Party or its Affiliates by the other Party or its Affiliates that is identified as confidential or should be reasonably known by the receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure, including without limitation, information relating to the disclosing Party’s customers, vendors, technology, trade secrets, prices, products, services, computer programs, and intellectual property.
“Customer Data” means all electronic data and content submitted to the Service by Customer and Authorized Users in connection with their use of the Service, excluding Statistical Usage Data (as defined herein).
“Documentation” means user guides and specifications for the Service as provided or made available by Hunters to its customers, excluding sales and marketing materials.
“Order” means a quote issued by Hunters to Customer (or to Partner for Customer, as the case may be) for the provision of the Service and/or Professional Services.
“Partner” means reseller or distributor that is authorized by Hunters to resell the Service and Professional Services.
“Professional Services” means consulting services ordered by Customer and provided by Hunters, including but not limited to, response to emerging threats, proactive threat-hunting and on-demand investigations.
“Service” means Hunters’ proprietary software-as-a-service products specified in the Order.
“Statistical Usage Data” means aggregated, anonymous information derived from the Customer’s use of the Service, including metadata and analytics information.
“Term” means the period commencing on the Effective Date and continuing for the length of time as specified in the Order, as the same may be renewed or extended in accordance with any subsequent Orders.
2. License Grant.
Subject to the terms of this Agreement and payment of all applicable fees, Hunters hereby grants Customer, during the Term, a non-exclusive, non-transferable (except in accordance with Section 18.3), non-sublicensable right to access and use the Service through its Authorized Users solely for Customer’s and its Affiliates’ internal business purposes in accordance with the Documentation and in the license quantity specified in the applicable Order.
3. Customer Account.
The Service may only be used by Customer’s Authorized Users through a dedicated Customer account allocated to Customer by Hunters (“Account”). Customer will cause its Authorized Users to (i) provide accurate and complete information during the initial Account setup process; (ii) keep their Account login details secure at all times; and (iii) comply with the terms of this Agreement. Customer shall remain fully responsible for any breach of this Agreement by any of its Authorized Users, and promptly notify Hunters of any unauthorized access or use of the Account.
4. License Restrictions.
Except as specifically permitted herein, Customer must not, and shall not allow any Authorized Users or any third party to, directly or indirectly: (a) copy, modify, create derivative works of or distribute any part of the Service (including by incorporate it into another product or service); (b) sell, license, sub-license, lease, assign, transfer, pledge, or share Customer’s rights under this Agreement with any third party; (c) disassemble, decompile, reverse engineer or attempt to discover the Service’s source code or underlying algorithms except to the extent expressly permitted by applicable law (and then only upon advance written notice to Hunters); (d) disclose the results of any testing or benchmarking of the Service to any third party or disseminate other information regarding the performance of the Service; (e) use the Service in a manner that violates or infringes any rights of any third party, including but not limited to, privacy, publicity or intellectual property rights; (f) remove or alter any trademarks or other proprietary notices related to the Service; (g) circumvent, disable or otherwise interfere with security-related features of the Service or features that enforce use limitations or perform unauthorized penetrating testing on the Service; (h) transmit any malicious code (i.e., software viruses, Trojan horses, worms, malware, etc.) or other unlawful material through the Service; (i) use the Service for the benefit of any third party; (j) use the Service for competitive analysis or to build competitive products; (k) store or process in the Service any personal health information, credit card data, personal financial data or other sensitive regulated data; or (l) exceed the subscribed quantities, users or other entitlement measures of the Service as set forth in the applicable Order.
5. Technical Support.
During the Term, Hunters shall provide technical support services to Customer in accordance with the Service Level Agreement attached hereto as Exhibit A (“SLA”).
6. Proof of Concept; Beta Versions/Features.
Hunters may make the Service or part thereof or beta versions/features of the Service available to Customer without charge for a limited period for Customer’s internal evaluation and non-production purposes (“Trial Service”). The Trial Service will be available to Customer until the earlier of: (i) the end of the period specified by Hunters; (ii) the commencement date of any purchased subscription of the Service; or (iii) notice of termination from Hunters. The Trial Service may have limited features, functions or other limitations as determined by Hunters. Customer acknowledges that any beta versions/features are still under development, may be inoperable or incomplete, and are likely to contain errors and bugs. Hunters does not guarantee that any beta version/feature will ever be made generally available. Notwithstanding anything to the contrary in this Agreement, and to the extent permitted by law: (i) Hunters provides the Trial Service “as is” and disclaims all express or implied warranties, representations and obligations with respect to the Trial Service, including any indemnity obligations; and (ii) Hunters’ maximum aggregate liability to Customer in connection with Customer’s use of the Trial Service will be US$1000. Upon termination or expiration of the Trial Service period, all Customer Data and configurations contained in the Service will become inaccessible. Hunters is not obligated to provide any technical support services for the Trial Service.
7. Try & Buy.
To the extent an applicable Order indicates that the Service, or part thereof, is provided under a “Try & Buy” plan (“Try & Buy Order”), Customer may use the Service as a Trial Service pursuant to Section 6, for a limited period of 60 days (“Try & Buy Period”). If Customer does not provide Hunters with a written termination notice prior to the end of the Try & Buy Period, the Customer: (i) confirms to acquire all licenses set forth in the Try & Buy Order (pursuant to the quantities and subscription period specified in the order); (ii) irrevocably undertakes to pay Hunters all applicable Fees indicated in Try & Buy Order regardless of whether the Customer issues a purchase order to Hunters; (iii) undertakes to use the licenses during the applicable paid subscription period in accordance with the terms of this Agreement. For the avoidance of doubt, the Try & Buy Period will not be considered part of the paid subscription period.
8. Orders and Payment.
This Agreement specifies the terms and conditions under which the Service and/or Professional Services will be provisioned by Hunters to Customer, whether ordered from Hunters directly by Customer or indirectly through a Partner. In case of direct Orders, Sections 8.2-8.5 will apply, and in case of indirect Orders, Section 8.6 will apply.
Customer shall pay all fees set forth in the applicable Order (“Fees”) without any deduction or set-off within thirty (30) days of the invoice date as issued by Hunters upon the Effective Date or renewal date, as applicable. Unless otherwise specified in the Order, all Fees are non-refundable and payable in advance, using the same currency as in the Order.
8.3 Late Payment.
Any Fees which remain unpaid after their applicable due date will be subject to a late payment charge in an amount equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate allowed by law, from the date the Fees were due until the date paid. Hunters will not exercise its right to charge for late payment if the applicable Fees are under reasonable and good faith dispute and Customer is cooperating diligently to resolve the issue.
Unless otherwise specified in the applicable Order or statement of work, Customer will reimburse Hunters for all pre-approved, reasonable expenses incurred by Hunters while performing Professional Services ordered by Customer. Such expenses shall be considered as Fees under this Agreement.
All Fees payable under this Agreement are exclusive of VAT, withholding tax, sales tax, and all other taxes, duties, levies, imports and like matters which, if applicable, shall be paid by the Customer, excluding taxes based on Hunters’ net income. If Customer is required by applicable law to withhold any taxes levied on the Fees, the Fees shall be adjusted to compensate for such withholding tax.
8.6 Purchase through a Partner.
For any Service purchased by Customer through a Partner, the pricing and payment terms are to be separately and independently agreed upon between Customer and Partner (“Partner Order”) and all payments will be made directly from Customer to Partner. In such case, Hunters grants Customer the license rights to the Service subject to Customer’s agreement to comply with the terms of the Partner Order and with the obligations set forth under this Agreement. If Customer is entitled to a refund under this Agreement, Hunters will refund any applicable Fees to the Partner, and the Partner will be solely responsible for refunding the appropriate amounts to Customer.
9. Intellectual Property Rights.
9.1 The Service.
Except for the license rights expressly granted by Hunters in this Agreement, all right, title, and interest in the Service and Professional Services, including all intellectual property rights therein and any derivative works thereof, are and shall remain owned solely by Hunters, its Affiliates or licensors.
9.2 Customer Data.
As between Hunters and Customer, Customer owns all right, title and interest in the Customer Data. Customer grants Hunters, its Affiliates and contractors, a worldwide, non-exclusive, royalty-free license to host, copy, transmit, display, and process the Customer Data during the Term as necessary to provide the Services to Customer pursuant to the terms of this Agreement. Subject to the license right granted herein, Hunters acquires no right, title or interest in the Customer Data. Customer shall be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired Customer Data.
9.3 Statistical Usage Data and Feedback.
Hunters may collect, retain, use and disclose Statistical Usage Data during and after the Term for its reasonable business purposes. If Customer or its Authorized Users provide any feedback or suggestions relating to the Service (“Feedback”), all rights, including intellectual property rights in such Feedback, shall belong exclusively to Hunters and shall not be considered as Customers’ Confidential Information. Hunters may use the Feedback at its sole discretion for any purpose without any obligation or compensation to Customer or any Authorized User.
10. Third-Party Components.
The Service may include third-party software, files, libraries or components that are subject to third-party open-source license terms (“Third-Party Software”). Notwithstanding the foregoing, if Customer uses the Service in accordance with this Agreement, with no distribution of software to third parties, then none of the Third-Party Software licenses impose any obligations on the Customer beyond what is stated in this Agreement.
Neither Party (the “Receiving Party”) shall disclose to third parties, nor use for any purpose other than for the proper use or provision of the Service any Confidential Information received from the other Party (the “Disclosing Party”) without the prior written permission of Disclosing Party. Receiving Party shall limit access to Confidential Information to those of Receiving Party’s and its Affiliates’ personnel for whom such access is reasonably necessary for the proper performance of this Agreement. Such personnel shall be bound by written confidentiality obligations not less restrictive than those provided for herein. Receiving Party shall be responsible for any breach of this Agreement by any of Receiving Party’s personnel. Receiving Party shall protect the Confidential Information with the same degree of care, but no less than a reasonable degree of care, to prevent unauthorized disclosure or use of Confidential Information, as Receiving Party exercises in protecting Receiving Party’s own proprietary information. The aforementioned limitations shall not apply to Confidential Information which the Receiving Party can demonstrate: (i) was in Receiving Party’s lawful possession prior to disclosure hereunder; (ii) was in the public domain at the time of disclosure or later became part of the public domain without breach of the confidentiality obligations herein contained; (iii) was disclosed by a third party without breach of any obligation of confidentiality; (iv) was independently developed by the Receiving Party without use of or reliance upon the Disclosing Party’s Confidential Information; or (v) is disclosed pursuant to administrative or judicial action, provided that Receiving Party shall limit such disclosure to only the information requested and give the Disclosing Party (to the extent legally permitted) prior written notice to allow it to seek a protective order or otherwise prevent or restrict the disclosure. The Parties acknowledge that a breach of this section may give rise to irreparable harm for which the Disclosing Party would not have an adequate remedy at law. Therefore, the Disclosing Party shall be entitled to seek injunctive relief as a remedy for any breach or threatened breach thereof, in addition to any other remedies available at law or in equity. This section supersedes any and all prior understandings and agreements between the Parties with respect to Confidential Information and is a complete and exclusive statement thereof.
Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law.
12.2 Service Warranty.
Hunters warrants that during the Term the Service shall substantially perform in conformance with the Documentation. In case Customer notifies Hunters in writing of any non-conformance with the foregoing warranty, Hunters will, at its sole expense, option and obligation, either: (a) use commercially reasonable efforts, at no charge to Customer, to repair, modify or replace the non-conforming Service, or, if Hunters is unable to correct the deficiencies (b) allow Customer to terminate the applicable Oder and, in such event, Hunters will provide Customer with a pro-rata refund of the unused pre-paid Fees for the period following the effective date of termination. The foregoing warranty shall not apply if the failure of the Service results from or is otherwise attributable to: (i) negligence, error, or misuse of the Service (including use not in accordance with the Documentation) by Customer, the Authorized User or by anyone acting on Customer’s behalf; or (ii) related to the use or implementation of third-party software or services not authorized or provided by Hunters.
12.3 Warranty Disclaimer.
OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HUNTERS EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS, IMPLIED OR STATUTORY. HUNTERS DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED.
13. Data Security and Privacy.
During the Term, Hunters will implement and maintain appropriate administrative, physical, and technical safeguards to protect the confidentiality, availability and integrity of Customer Data against unauthorized, unlawful or accidental disclosure, access, alteration or destruction. Hunters will not materially diminish the protections set forth in this section during the Term. The Parties shall comply with their respective obligations under any applicable data protection laws. To the extent Customer requires a Data Processing Agreement ("DPA") for its GDPR or CCPA compliance, Customer shall request Hunters to provide a copy of Hunter’s DPA, and Customer will email a signed copy of the DPA to email@example.com. Once executed by both Parties, the DPA will be incorporated by reference into this Agreement.
14.1 Indemnification by Hunters.
Hunter shall defend Customer from any third-party action, suit or proceeding brought against Customer alleging that the Service, when used as permitted under this Agreement, infringes any patent, copyright, or trademark or misappropriate any trade secret of that third party (“IP Infringement Claim”). Hunters will indemnify Customer for all damages and costs (including reasonable attorneys’ fees) awarded in a final judgment against the Customer that are attributable to any such claim or paid to a third party in accordance with a settlement agreement signed by Hunters. Notwithstanding the foregoing, Hunters shall have no responsibility for IP Infringement Claims resulting from or based on: (i) modifications to the Service made by a party other than Hunters or its authorized contractors; (ii) a combination of the Service with equipment, devices or software not supplied or authorized by Hunters, where the IP Infringement Claim would have been avoided but for such combination; (iii) use of the Service not in accordance with the Documentation, this Agreement or applicable laws; or (iv) Customer’s gross negligence or willful misconduct. If the Service becomes, or in Hunters' reasonable opinion is likely to become, the subject of an IP Infringement Claim, Hunters may, at its sole discretion: (a) procure for Customer the right to continue using the Service; (b) replace or modify the Service to avoid the IP Infringement Claim without causing a material adverse effect on the functionality provided by the infringing Service; or (c) terminate this Agreement with written notice to Customer and provide Customer with a pro-rata refund of the unused pre-paid Fees for the period following the effective date of termination.
14.2 Indemnification by Customer.
Customer shall defend Hunters and its Affiliates from any third-party action, suit or proceeding brought against Hunters alleging violation of any applicable laws or third party’s rights arising from or related to the Customer Data, including Customer’s provision of the Customer Data to Hunters. Customer will indemnify Hunters and its Affiliates for all damages and costs (including reasonable attorneys’ fees) awarded in a final judgment against them that are attributable to any such claim or paid to a third party in accordance with a settlement agreement signed by Customer.
14.3 Indemnity Process.
The Party seeking indemnification under this Section 14 (“Indemnified Party”) shall (i) promptly notify the other party (“Indemnifying Party”) of the claim for which the Indemnifying Party must indemnify as described above; (ii) grant the Indemnifying Party the sole authority and control for the defense or settlement of any such claim, provided that the Indemnifying Party will have no authority to enter into any settlement or admission of the indemnified Party’s wrongdoing on behalf of the indemnified Party without the indemnified Party’s prior written consent (not to be unreasonably withheld); and (iii) provide Indemnifying Party with reasonable information and assistance. This Section 14 states the sole liability of indemnifying Party and the exclusive remedy of indemnified Party with respect to the claims under this section.
15. Limitation of Liability.
15.1 CONSEQUENTIAL DAMAGES WAIVER.
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF REVENUE, BUSINESS OR REPUTATION, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SERVICE EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15.2 LIABILITY CAP.
OTHER THAN IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS OR CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER, IN ANY EVENT, EITHER PARTY’S TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES AND LOSSES THAT ARISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, SHALL NOT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY CUSTOMER TO HUNTERS UNDER THIS AGREEMENT WITHIN THE 12 MONTHS PRECEDING THE DATE OF INITIAL CLAIM.
15.3 NOTWITHSTANDING THE FOREGOING, THIS AGREEMENT DOES NOT EXCLUDE OR LIMIT LIABILITY THAT CAN NOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW, INCLUDING LIABILITY FOR (A) DEATH OR BODILY INJURY CAUSED BY A PARTY’S NEGLIGENCE, OR (B) GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD. THE PARTIES AGREE THAT THE WAIVERS AND LIMITATIONS SPECIFIED IN THIS SECTION 15 APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
16. Term, Termination and Suspension.
This Agreement shall be in effect during the Term unless terminated earlier by either Party as expressly permitted by this Agreement
Either Party may terminate this Agreement only if the other party: (a) fails to cure any material breach within thirty (30) days after receipt of written notice of the breach; or (ii) commences bankruptcy or dissolution proceedings, has a receiver appointed for a substantial part of its assets or ceases to operate in the ordinary course of business. Upon termination by Customer pursuant to this section, Hunters will provide Customer with a pro-rata refund of the unused pre-paid Fees for the period following the effective date of termination. Upon termination by Hunters pursuant to this section, all outstanding and future amounts due under the Agreement or Orders (as applicable) will become immediately due and payable. In no event will any termination relieve Customer of its obligation to pay any Fees payable to Hunters for the period prior to the effective date of termination.
16.3 Effect of Termination.
Upon expiration or termination of this Agreement for any reason: (i) all rights granted to Customer will immediately terminate; (ii) Customer will cease accessing or using the Service; and (iii) Hunters will have no obligation to maintain any Customer Data and may, thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in our possession or under our control. The Sections titled “Orders and Payment”, “Intellectual Property Rights”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Term, Termination, and Suspension” and “Miscellaneous” shall survive termination or expiration of this Agreement.
Hunters reserves the right to suspend Customer’s access to the Service if Hunters reasonably suspects that the use of the Service by Customer or its Authorized Users is in material breach of this Agreement, the Documentation or applicable Order, which, in Hunters’ reasonable judgment, threatens the security, integrity or availability of the Service. Hunters will use commercially reasonable efforts under the circumstances to provide Customer with prior notice and an opportunity to remedy such violation or threat, and will promptly reinstate Customer’s access to the Service once the issue has been resolved.
17. Professional Services.
Hunters and Customer may enter into statements of work that reflect the scope of Professional Services to be performed by Hunters subject to payment of applicable fees invoiced by Hunters upon the Effective Date or as otherwise agreed between the Parties. Hunters warrants that: (i) it is competent and possesses the necessary expertise to perform the Professional Services; and (ii) the Professional Services will be performed in a professional and workmanlike manner. Customer will provide reasonable support and information necessary to enable Hunters to perform the Professional Services.
18.1 Entire Agreement.
This Agreement, including any exhibits attached or referred hereto, represents the complete agreement concerning the subject matter hereof and supersedes all prior agreements and representations between the Parties regarding the subject matter hereof. Any terms and conditions contained in a purchase order issued by Customer will be of no force or effect. If there is any conflict between the terms of this Agreement and any fully executed Order, the terms of the Order shall control.
18.2 Waiver and Severability.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
This Agreement may not be assigned by either Party without the prior written consent of the other Party, however, either Party may assign this Agreement without consent to an Affiliate or pursuant to a merger, acquisition, or sale of all or substantially all of such Party’s assets, except in the event that the proposed assignee is a direct competitor of the other Party.
During the Term, Hunters may include Customer’s name and logo as a reference for marketing or promotional purposes on Hunters’ website and in other public or private communications and events, subject to Customer’s trademark usage guidelines as provided to Hunters.
18.5 Force Major.
Neither Party shall be liable to the other for any delay or failure to perform its obligations hereunder (except for a failure to pay Fees) due to circumstances beyond the Party’s reasonable control, including acts of God, acts of governments, pandemics, viruses, epidemics, computer-related attacks, hacking, acts of terror or service disruptions involving hardware, software, or power systems not within the Party’s possession or reasonable control.
18.6 Export Control.
The Customer agrees to comply with all applicable export control laws and regulations regarding its access and use of the Service, and will not permit any Authorized User to access or use the Service in a U.S. or Israel-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria, Lebanon, and the Crimea, Luhansk or Donetsk regions of Ukraine). Hunters and Customer each represents that it is not on any U.S. government denied-party list.
18.7 Governing Law and Jurisdiction.
Regardless of conflict of law principles, if Customer’s principal place of business is in the United States or Canada: (i) Hunters’ contracting entity will be Cyber Hunters, Inc., with offices in 275 Grove Street, Suite 2-400, Newton, MA 02466 United States; (ii) this Agreement will be governed by and construed under the laws of the Commonwealth of Massachusetts, United States; and (iii) the courts of Boston will have exclusive jurisdiction over any legal action, suit or proceeding arising out of or related to this Agreement. If Customer’s principal place of business is outside of the United States or Canada: (a) Hunters’ contracting entity will be Cyber Hunters Ltd., with offices in 82 Yigal Alon St., 12th Floor, Tel Aviv 6789124 Israel; (b) this Agreement will be governed by and construed under the laws of the State of Israel; and (c) the courts of Tel-Aviv, Israel will have exclusive jurisdiction over any legal action, suit or proceeding arising out of or related to this Agreement. To the extent not prohibited by applicable law, the Parties irrevocably waive any right to trial by jury in any legal proceeding arising out of or related to this Agreement.
18.8 Independent Contractors.
The Parties are independent contractors. This Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties.
Any notice under this Agreement must be given in writing. All notices to be provided by Hunters to Customer under this Agreement may be delivered (i) by nationally recognized overnight delivery service or by registered or certified mail, to the mailing address provided by Customer; or (ii) by electronic mail to the electronic mail address provided by Customer or its authorized Users. All notices to be provided by Customer to Hunters under this Agreement will be via electronic mail to firstname.lastname@example.org, with a physical copy sent to Hunters’ offices as indicated in this Agreement. All notices shall be deemed to have been given immediately upon delivery by electronic mail or by hand, or if otherwise delivered, within one day after being sent by overnight delivery or three days after being sent by registered or certified mail.
HUNTERS SERVICE LEVEL AGREEMENT (SLA)
(A) Technical Support Services
Subject to Customer’s compliance with the Agreement, Hunters will provide technical support services during the Term based on the support plan purchased by Customer in accordance with the descriptions set forth in the table below (“Support Services”):
The following definitions apply to this SLA:
|Initial Response||1 Business Day|
|Contact Frequency||2 Business Days|
|Initial Response||2 Business Days|
|Contact Frequency||1 Week|
Customer may submit support tickets to Hunters via email at email@example.com or by web access via support.hunters.ai. Hunters will make a reasonable determination of the severity level of each support ticket and may adjusted it at a later stage as the incident progresses.
Hunters shall not be required to provide any Support Services if the Customer’s support request is, at Hunters’ sole reasonable discretion, resulting from:
- Modifications or adjustments of the Service that have not been performed or approved by Hunters in writing;
- Compatibility problems between the Service and any other software, hardware, or other technology not provided or supported by Hunters;
- Use of the Service other than in accordance with the Documentation or in violation of the Agreement;
- Any fault in the equipment or programs used in conjunction with the Service, or other causes beyond Hunters’ control; or
- Customer’s negligence or willful misconduct.
In order to receive Support Services, Customer undertakes to:
- cooperate with Hunters as required;
- provide Hunters with all necessary information and resources (including, but not limited to, information to enable Hunters to replicate the problem); and
- promptly implement any corrective procedures, updates or workarounds provided by Hunters. Failure to timely implement the foregoing may result in disruptions to or failures of the Service, which Hunters will not be liable for.
(B) Service Level Commitment
During the Term, Hunters will use commercially reasonable efforts to make the Service available with a Monthly Uptime Percentage of at least 99.5% during a monthly billing cycle.
“Monthly Uptime Percentage” means 100% minus the percentage of Downtime period out of the total minutes in the relevant calendar month.
"Downtime" means the time in which Service is unavailable to the Customer, as measured and determined solely by Hunters. Downtime excludes incidents that are caused by or resulted from: (i) routine scheduled maintenance or reasonable emergency maintenance; (ii) factors beyond Hunters’ reasonable control (e.g. force majeure, Internet access); (iii) use of the Service other than in accordance with the Documentation or in violation of the Agreement; (iv) Customer’s or third-party’s equipment, software or other technology and/or third party equipment, software or other technology; or (v) any Service or related features identified as beta, or provided as part of a trial or proof of concept.
Hunters reserves the right to change the terms of this SLA Agreement from time to time by informing the Customer via email, in-application notifications or otherwise.
Last updated: November 2022