TERMS AND CONDITIONS

CyFortress TERMS AND CONDITIONS 

PLEASE READ THE FOLLOWING CAREFULLY BEFORE DOWNLOADING, INSTALLING AND/OR USING THE SERVICES (AS DEFINED BELOW). BY SIGNING THESE TERMS AND CONDITIONS (“TERMS“), OR CLICKING “I AGREE”, “I ACCEPT” OR OTHER SIMILAR BUTTON, OR BY INSTALLING, ACCESSING AND/OR USING THE SERVICES YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU (“YOU” OR “CUSTOMER”) ARE ENTERING INTO A LEGAL AGREEMENT WITH CyFortress LTD. (“CyFortress” or “WE”) (YOU AND CyFortress, EACH, A “PARTY” AND COLLECTIVELY, THE “PARTIES”), AND HAVE UNDERSTOOD AND AGREE TO COMPLY WITH, AND BE LEGALLY BOUND BY, THE TERMS INCLUDING THOSE INCORPORATED BY REFERENCE.

FURTHERMORE, BY ACCEPTING THE TERMS, YOU HEREBY WAIVE ANY APPLICABLE RIGHTS TO REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT NOT PROHIBITED UNDER APPLICABLE LAW.

IF YOU ARE NOT THE CUSTOMER AND YOU ARE INSTALLING, ACCESSING AND/OR USING THE SERVICES ON BEHALF OF THE CUSTOMER, YOU WARRANT AND REPRESENT THAT YOU ARE AUTHORIZED TO ACT ON BEHALF OF THE CUSTOMER AND TO ACCEPT (AND BIND THE CUSTOMER TO) THE TERMS.

THESE TERMS ARE HEREBY INCORPORATED INTO AND FORM PART OF YOUR SALES ORDER, IF ANY.

Definitions

1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.

1.2 “Agent” means any optional piece of software code We provide You (whether downloadable from CyFortress Servers and/or deployed from the installation package installed with the Services), and installed on all, selected, or none, of Customer’s End Points.

1.3 “Agreement” means these Terms together with the Privacy Policy and the Sales Order (to the extent such Sales Order that was executed by the Parties).

1.4 “API” means an application program (or programming) interface.

1.5  “CyFortress Data” means the data generated by the Services, including but not limited to, correlative and/or contextual data, and/or detections. For the avoidance of doubt CyFortress Data does not include Customer Data.

1.6 “CyFortress Competitor” means a person or entity in the business of developing, distributing, or commercializing Internet security products or services, substantially similar to or competitive with CyFortress’s products or services.

1.7 “CyFortress Servers” means servers belonging to CyFortress and/or third-party hosting service providers which CyFortress uses.

1.8 “Customer Contractor” means any individual or entity (other than a CyFortress Competitor) that: (i) has access or use of the Services under this Agreement solely on behalf of and for Customer’s Internal Use, and (ii) has an agreement to provide Customer (or its Affiliates) with the Services.

1.9 “Customer Contractor Services” means products, services or content developed or provided by Customer Contractors, including, but not limited to, third party applications complimentary to the Services, implementation services, managed services, training, technical support, or other consulting services related to, or in conjunction with the Services.

1.10 “Customer Data” means any data (other than CyFortress Data) that will be made available and/or accessible to CyFortress while the Services are provided to the Customer. In addition, such data shall also include the Reports.

1.11 “Documentation” means any, product descriptions, technical specifications, manuals, and materials relating to the use of the Services (as may be updated from time-to-time) which CyFortress may provide to the Customer (directly or via the Partner, as applicable) in its discretion.

1.12 “Effective Date” means the effective date as defined in the Sales Order or in the event no Sales Order was executed by the Parties, the date in which the Customer agreed to this Agreement as set forth herein.

1.13 “Endpoint” means any physical or virtual device, on which the Services will be available.

1.14 “Force Majeure Event” means circumstances or causes beyond the reasonable control of a Party, including, but not limited to on account of strikes, shortages, riots, insurrection, fires, flood, storms, explosions, acts of God, war, government or quasi-governmental authorities actions, acts of terrorism, earthquakes, power outages, pandemic or epidemic (or similar regional health crisis).

1.15 “Intellectual Property Rights” means all intellectual property rights including, without limitations, copyrights, trade-secrets, trademarks, tradenames, patents, know-how, and other proprietary rights whether or not registered, and wherever in the world.

1.16 “Internal Use” means access or use solely for Customer’s and its Affiliates (subject to the terms of this Agreement), own internal information security purposes, in either event, solely on Customer’s behalf and for Customer’s benefit. By way of example and not limitation, Internal Use does not include access or use: (i) for the benefit of any person or entity other than Customer or its Affiliates, or (ii) for the development of any product or service.

1.17 “Partner” means any of CyFortress’s approved distributor and/or reseller which is authorized by CyFortress to grant Customer with access to the Services.

1.18 “Partner’s Agreement” mean an agreement (including any exhibits thereto) by and between CyFortress and the Partner under which the Partner is authorized to grant Customer with access to the Services.

1.19 “Permitted Users” means any of Customer’s employees or Customer Contractors who are explicitly authorized by Customer to use the Services.

1.20 “Sales Order” means an order form submitted to or by the Customer or to the Partner (as applicable) for the provision of the applicable Services, which includes, inter alia, the Term (as defined below), number of Endpoints, pricing, payment terms and the like and which is duly executed by CyFortress and the Customer or the Partner (as applicable).

1.21 “Privacy Policy” means CyFortress’s privacy policy (as may be amended from time to time) which is currently available at https://www.CyFortress.com/privacy-policy/.

1.22“Reports” means data reports that contain the results of the monitoring and discovery performed by the Services in relation to Customer’s Endpoints.

1.23 “Server” means a hardware enabling the installation of the Services on its storage device and the operation therefrom.

1.24 “Services” means CyFortress’s services as set forth in the Sales Order and Support and Maintenance services.

1.25 “Support and Maintenance Services” means support and maintenance services which shall be provided by CyFortress (in case not provided by the Partner and subject to CyFortress’s prior written approval and provided further that CyFortress received all applicable fees in relation to the applicable Sales Order.) in accordance with CyFortress’s Service Level Agreement which will be made available to Customer (provided that the Customer directly executed the Sales Order), upon written request.

1.26 “Updates” means any patches, updates, modified versions, additions, service packs and upgrades, if any, which may be provided by CyFortress to Customer (directly or via the Partner) from time to time on as available basis.

1.27 “Website” means CyFortress’s website which is currently available at: www.CyFortress.com.

Access and Usage Rights

2.1 Subject to the terms and conditions of this Agreement, CyFortress hereby grants Customer (directly or via a Partner, as applicable) a limited, non-exclusive, non-sublicensable, non-transferable and revocable right to install (i.e., on a on prem basis) or remotely access (i.e., on a SaaS basis) and/or use (as the case may be) the Services during the Term, solely for Customer’s Internal Use. Customer may only use the Services in accordance with the Documentation, subject to the use limitations indicated in the Sales Order.

2.2 Customer hereby grants CyFortress during the Term, access to its CyFortress360 User Interface, solely for the purpose of investigate malicious behavior and/or any signs of an attack on Customer’s Endpoints which are protected by the Services. To the extent that Customer doesn’t wish to grant such right, Customer shall send an email request to soc@CyFortress.com, requesting to revoke such authorization.

Customer Contractors

3.1 To the extent the Customer uses Customer Contractors for the provision of the Services, Customer authorizes CyFortress to give Customer Contractors the rights and privileges to the Services necessary to enable and provide for Customer’s use and receipt of the Customer Contractor Services. If at any time Customer revokes this authorization, then Customer is responsible for taking the actions necessary to revoke such access and use. In the event Customer requires CyFortress’s assistance with such revocation or limitation, Customer must contact CyFortress Support with written notice of such revocation or limitation at support@CyFortress.com.

3.2 Customer Contractors are subject to the terms and conditions of this Agreement while they are using the Services on behalf of Customer and Customer remains responsible for their acts and omissions during such time. Any breach by a Customer Contractor of this Agreement shall be deemed as a breach by Customer.

Try and Buy, Early Adoption and Beta Program

4.1 If You are invited to and agree to participate in CyFortress’s Early Adoption Program or Beta Program, You acknowledge that Early Adoption or Beta versions of the Services are prerelease versions of the Services and as such may contain errors, bugs or other defects. Accordingly, your use and testing of the Early Adoption and/or Beta versions of the Services is subject to the disclaimers stated in Section 4.2 below. Additionally, your use of Early Adoption and/or Beta versions of the Services is subject to CyFortress’s sole discretion as to length and scope of use, updates and support of such Early Adoption or Beta versions of the Services and may be terminated by CyFortress at any time.

4.2 IN THE EVENT THAT A TRY AND BUY PERIOD (AS DEFINED IN THE SALES ORDER) IS INCLUDED IN THE SALES ORDER OR DURING EARLY ADOPTION OR BETA USE OF THE SERVICES, THEN NOTWITHSTANDING ANY PROVISION TO THE CONTRARY IN THIS AGREEMENT, CUSTOMER EXPRESSLY AGREES THAT THE SERVICES ARE OFFERED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, OR COURSE OF DEALING. YOU ASSUME ALL RISK AS TO THE RESULTS AND PERFORMANCE OF THE SERVICES AND ACKNOWLEDGES THAT THE USE OF THE SERVICES, TO THE EXTENT APPLICABLE, MUST BE MADE IN STRICT CONFORMANCE WITH CyFortress’S INSTRUCTIONS. WITHOUT DEROGATING FROM THE FOREGOING, IT IS UNDERSTOOD AND AGREED THAT CyFortress WILL NOT BE LIABLE FOR ANY NETWORK DOWNTIME, SERVICES DOWNTIME, AND/OR IDENTIFYING AREAS OF WEAKNESS IN THE SERVICES. FOR ALL EVALUATIONS (TRY AND BUY), OR EARLY ADOPTION OR BETA USE OF THE SERVICES, WE SHALL HAVE NO LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, OR LOSS OF REVENUE OR PROFIT, LOST OR DAMAGED DATA, LOSS OF PROGRAMS OR INFORMATION OR OTHER INTANGIBLE LOSS ARISING OUT OF THE USE OF OR THE INABILITY TO USE THE SERVICES, OR INFORMATION, OR ANY PERMANENT OR TEMPORARY CESSATION OF THE SERVICES OR ACCESS TO INFORMATION, OR THE DELETION OR CORRUPTION OF ANY CONTENT OR INFORMATION, OR THE FAILURE TO STORE ANY CONTENT OR INFORMATION OR OTHER COMMERCIAL OR ECONOMIC LOSS, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE), EVEN IF CyFortress HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THAT THEY ARE FORESEEABLE. CyFortress IS ALSO NOT RESPONSIBLE FOR CLAIMS BY ANY THIRD PARTY. WHILE THE SERVICES ARE PROVIDED FREE OF CHARGE FOR EVALUATION, EARLY ADOPTION OR BETA PURPOSES ONLY, CyFortress’S MAXIMUM AGGREGATE LIABILITY TO YOU SHALL NOT EXCEED US $100. IN JURISDICTIONS WHERE THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT ALLOWED THE LIABILITY OF CyFortress SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. THIS SECTION 4.2 SHALL SUPERCEDE ANY EXPRESS WARRANTIES OR COMMITMENTS CONTAINED HEREIN. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO THE PARTIES’ OBLIGATIONS UNDER SECTION 11 HEREIN.

4.3 In the event of any inconsistencies between the terms of this Section 4 and other provisions of this Agreement, the terms specified in this Section 4 shall prevail.

Customer’s Responsibilities

5.1 Customer acknowledges and agrees that (i) its Customer’s sole responsibility (at its discretion) to update and maintain the Services, including without limitation, fixing any security vulnerability revealed by the Services and/or the Reports, (ii) the Reports and Services are not guaranteed by CyFortress to identify and/or contain any and/or all vulnerabilities, incidents, issues of concern, indicators of compromise, malware, risk to confidentiality of information, advanced persistent threats, or activity and (iii) it is Customer’s sole responsibility to test, vet and confirm that any remedial measures contained in the Reports are appropriate for Customer’s purposes. Customer further acknowledges and agrees that Customer’s use of the Services does not render or guarantee that the Services will be invulnerable or free from unauthorized access, use, or disclosure of information.

5.2 Customer further acknowledges and agrees that Customer’s use of the Services starts on the Effective Date and the Customer is responsible for providing all configuration data (host names, user accounts, etc.) needed to perform the Services. Failure to provide configuration data does not release Customer from any responsibility in the Agreement. Customer acknowledges and agrees that Customer’s and its users’ use of the Services may be dependent upon access to telecommunications and Internet services.

5.3 Customer shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required for its access and use of the Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. CyFortress shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.

Fees, Payment terms and Affiliates

6.1 To the extent the Services are purchased by You directly from CyFortress (and not through a Partner), the Services are conditioned on Customer’s payment in full of the applicable fees set forth in the Sales Order (the “Fees”). You shall pay such Fees directly to CyFortress. If You purchased the Services from a Partner, You shall pay Partner in accordance with the terms of your purchase order with such Partner.

6.2 Customer will pay all amounts due under this Agreement in such currency and in such payment terms as set forth in the Sales Order.

6.3. CyFortress conducts regular scans to validate that the usage of CyFortress’s Services is no more than the volume that was purchased under the Sales Order. If a scan reveals that the usage is in excess, Customer hereby agrees and authorizes CyFortress to charge and invoice the Customer (or the Partner as applicable) for such usage and the volume of the respective Services under the Sales Order will be deemed to include such excess till the end of the Term.

6.4 All Sales Order are final and non-cancelable. All Fees and other amounts paid hereunder are non-refundable.

6.5 Any amount not paid when required to be paid hereunder shall accrue interest on a daily basis until paid in full at the lesser of: (i) the rate of one and a half percent (1.5%) per month; or (ii) the highest amount permitted by applicable law.

6.6. All amounts payable to CyFortress under this Agreement are exclusive of all sales, use, value-added, withholding, and other direct or indirect taxes, charges, levies and duties. In the event that payment is made directly to CyFortress all payments due under this Agreement will be made by the payment method stated in the Sales Order and Customer is responsible for paying all taxes associated with its purchases hereunder, excluding taxes based on CyFortress’s net income.

6.7 Any Affiliate issuing a Sales Order hereunder, or using or accessing any Services, or benefitting from the Customer’s use of the Services, will be bound by and comply with all terms and conditions of this Agreement. The Customer signing this Agreement will remain responsible for its Affiliates’ acts and omissions unless such Affiliates’ have entered into their own Agreements with CyFortress.

6.8 Only those transaction-specific terms stating the Services ordered, quantity, price, payment terms, Term, contact information (and for the avoidance of doubt, specifically excluding any pre-printed terms on a Customer or a Partner purchase order) will have any force or effect, unless a particular Sales Order is executed by CyFortress and returned to Customer (or the applicable Partner). If any such Sales Order is so executed, then only those specific terms on the face of such Sales Order that expressly identify those portions of this Agreement that are to be superseded will prevail over any conflicting terms herein but only with respect to those Services ordered on such Sales Order.

Data Use

7.1 We will handle your information and any Personal Identifiable Information (as defined in our Privacy Policy) made available to us as a controller (including CRM business data and/or any log-in details), in accordance with this Agreement and our Privacy Policy.

7.2 Customer hereby warrants and represents that it will (i) provide all appropriate notices, (ii) obtain all required informed consents and/or have any and all ongoing legal bases, including parental guardians, if applicable in light of the age of the data subjects, and (iii) comply at all times with any and all applicable privacy and data protection laws and regulations (including, without limitation, the EU General Data Protection Regulation (“GDPR”) and the California Consumer Privacy Act of 2018 (“CCPA“), in each case as required for allowing CyFortress to use and process the data in accordance with this Agreement (including, without limitation, the provision of such data to CyFortress (or access thereto) and the transfer of such data by CyFortress to its Affiliates and subcontractors, including transfers outside of the European Economic Area), for the provision of the Services and the performance of the Agreement.

7.3 To the extent that Customer needs a data processing agreement, Customer shall send an email request to privacy@CyFortress.com, requesting CyFortress’s Data Processing Agreement and return it signed to CyFortress as described therein.

7.4 Notwithstanding the foregoing, any anonymous information, which is derived from the use of the Services (i.e., metadata, aggregated, statistics and/or analytics information) which is not personally identifiable information (“Analytics Information”) may be used for providing the Services, for development and/or improvement, and/or for statistical purposes (internally or externally). It is hereby clarified, the Analytics Information is CyFortress’s exclusive property.

Representations

8.1 Each Party represents and warrants the following: (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) the execution and performance of this Agreement will not conflict with other agreements, commitments and licenses to which it is bound or violate applicable law; and (iii) it has full corporate power and authority to execute, deliver and perform its obligations under Agreement.

8.2 Conformity of the Services. We warrant that during the Term, the most recent release of the Services (“Current Release”) will substantially conform in all material respects with the description of the Services as provided in the Documentation (if provided). CyFortress’s sole obligation for material non-conformity with this warranty shall be, in CyFortress’s sole discretion, to use commercially reasonable efforts (i) to provide You with an error-correction or workaround which corrects the reported non-conformity; (ii) to replace the non-conforming portions of the Services with materially conforming items; or (iii) if CyFortress reasonably determines such remedies to be impracticable within a reasonable period of time, to terminate this Agreement and provide a refund for any amount pre-paid by Customer or by the Partner (as applicable) for such returned Services for the remaining unused period of the Services (on a pro rata basis) and such refund shall be the sole and exclusive remedy of the Customer.

8.3 The above warranty will not apply: (i) if the Services are not used in compliance with the Documentation or CyFortress’s instructions; (ii) if any unauthorized repair, maintenance or modifications are made to the Services by You or any third party; (iii) to use of early releases of the Services which are not the Current Release; (iv) to defects due to accident, negligence, abuse or improper use by You; (v) the combination of the Services with equipment or software not authorized or provided by CyFortress; (vi) to non-conformity arising from any inaccuracy in the code or other information provided or made available to CyFortress; (vii) in the event of any delay in providing the access to the Services by CyFortress caused by Customer and/or any of its third party service providers; or (viii) to use of the Services during the Try and Buy Period and/or during the Early Adoption Program or Beta Program.

8.4 In addition, CyFortress shall not be responsible for any failure or deficiency of Services availability to the extent caused by or associated with: (i) a Force Majeure Event; (ii) regularly scheduled or emergency maintenance and upgrades; (iii) any causes attributable to Customer and/or Partner and or Customer Contractor(s), (iv) software or hardware not provided or controlled by CyFortress; and (v) outages elsewhere on the Internet, including but not limited to interruptions at any Customer or third party data center or internet service provider that hinder Customer’s access to the Services.

Intellectual Property Rights

9.1 The Services are not for sale and are CyFortress’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 Services (and all improvements enhancements, corrections, modifications, alterations, revisions, extensions and updates and derivative works thereof) and any other products, deliverables or services provided by CyFortress; are and shall remain owned solely by CyFortress or its licensors. This Agreement does not convey to Customer any interest in or to the Services other than a limited right to use the Services in accordance with this Agreement. Nothing herein constitutes a waiver of CyFortress’s Intellectual Property Rights under any law. If CyFortress receives any feedback (whether orally or in writing)  (e.g., questions, comments, suggestions or the like) regarding any of the Services (collectively, “Feedback”), all rights, including Intellectual Property Rights in such Feedback shall belong exclusively to CyFortress and be considered CyFortress’s Confidential Information and Customer hereby irrevocably and unconditionally transfers and assigns to CyFortress all Intellectual Property Rights it has in such Feedback and waives (and vows never to assert) any and all moral rights that Customer may have in respect thereto. It is further understood that use of Feedback, if any, may be made by CyFortress at its sole discretion, and that CyFortress in no way shall be obligated to make use of any kind of the Feedback or part thereof.

9.2 Restrictions. Except as specifically permitted herein, without the prior written consent of CyFortress, Customer must not, and shall not allow any Permitted User and/or third party, to directly or indirectly: (i) copy, modify, create derivative works of or distribute any part of the Services (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 CyFortress to disclose the source code of the Services to any third party; (iv) disclose the results of any testing or benchmarking of the Services to any third party; (v) disassemble, decompile, reverse engineer or attempt to discover the Service’s source code or underlying algorithms; (vi) use the Services 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 Services; (viii) circumvent, disable or otherwise interfere with security-related features of the Services or features that enforce use limitations; (ix) export, make available or use the Services in any manner prohibited by applicable laws (including without limitation export control laws); (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 Services; (xi) employ or authorize a CyFortress Competitor to use or view the Service and/or the Documentation, or to provide management, hosting, or support for the Services; (xii) use any feature of CyFortress’s APIs for any purpose other than in the performance of, and in accordance with this Agreement; or (xii) cause, encourage or assist any third party to do any of the foregoing. Customer agrees to use the Services in accordance with laws, rules and regulations directly applicable to Customer. In the event Customer obtains knowledge that a third party is attempting to take any of the foregoing actions prohibited by this Section 9.2, Customer shall so notify CyFortress in writing immediately.

9.3 Reservation of Rights. Each Party reserves all rights not expressly granted in this Agreement, and no licenses are granted by one Party to the other Party under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement. As between the Parties, Customer reserves all right, title and interest in any of Customer Data.

9.4 Content. By using the Service, Customer agrees to and hereby grants and represents and warrants that it has the right to grant CyFortress a royalty-free, fully paid up, worldwide, limited and revocable license to use any content delivered to CyFortress by Customer through the Services (the “Content”) in connection with the operation and provision of the Service. Under no circumstances whatsoever will CyFortress be liable in any way for any Content and any use thereof in any way, including, without limitation, for any errors or omissions, or for any infringement of third party’s rights, loss or damage of any kind incurred as a result of the use or display of any Content transmitted, uploaded or otherwise made available in connection with the Service.

9.5 Open Source. Portions of the Services may include third party open-source software that are subject to third party terms and conditions (“Third-Party Terms”). The Third-Party Terms for such third-party software are available at this link. If there is a conflict between any Third-Party Terms and the terms of this Agreement, then the Third-Party Terms shall prevail but solely in connection with the related third-party open-source software. Notwithstanding anything in this Agreement to the contrary, CyFortress makes no warranty or indemnity hereunder with respect to any third-party open-source software.

Confidentiality

10.1 Each Party may have access to certain non-public information of the other Party, in any form or media (whether disclosed orally, in writing or in electronic form), including without limitation trade secrets and other information related to the products, software, technology, know-how, or business of the other Party, and any other information that a reasonable person should have reason to believe is competitively sensitive (the “Confidential Information”).

10.2 Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party’s Confidential Information from disclosure to a third party.

10.3 The receiving Party’s obligations under this Section, with respect to any Confidential Information of the disclosing Party, shall not apply to and/or shall terminate if such information: (a) was already lawfully known to the receiving Party at the time of disclosure by the disclosing Party; (b) was disclosed to the receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the receiving Party has become, generally available to the public; (d) was independently developed by the receiving Party without access to, or use of, the disclosing Party’s Confidential Information or (e) to the extent the disclosure of the Confidential Information is required by law or by the order of a court of similar judicial or administrative body, provided that (to the extent legally permitted) it promptly notifies the disclosing Party in writing of such required disclosure to enable disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure.

10.4 Neither Party shall use or disclose the Confidential Information of the other Party except for performance of its obligations under this Agreement (the “Permitted Use”).

10.5 The receiving Party shall only permit access to the disclosing Party’s Confidential Information to its respective officers, employees, consultants, Affiliates, agents and subcontractors (collectively “Representatives”) having a need to know such information in connection with the Permitted Use, who either (i) have signed a non-disclosure agreement with the receiving Party containing terms at least as restrictive as those contained herein or (ii) are otherwise bound by a duty of confidentiality to the receiving Party at least as restrictive as the terms set forth herein. Each Party shall be fully responsible for any breach of this Section 10 by any of its Representatives.

10.6 As between the Parties, All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party.

10.7 Upon disclosing Party’s written request, or upon expiry or termination of the Agreement, whichever is earlier, the receiving Party shall (at disclosing Party’s option) return all Confidential Information to the disclosing Party or destroy the Confidential Information and any copies or extracts thereof. However, receiving Party, its Affiliates and their Representatives may retain any Confidential Information that: (i) they are required to keep for compliance purposes under a document retention policy or as required by applicable law, professional standards, a court, or regulatory agency; or (ii) have been created electronically pursuant to automatic or ordinary course archiving, back-up, security, or disaster recovery systems or procedures; provided, however, that any such retained information shall remain subject to this Agreement.

Limited Warranties

11.1 OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, THE DOCUMENTATION AND ANY OUTPUT THEREOF (INCLUDING THE REPORTS) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND CUSTOMER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT CyFortress DOES NOT GUARANTEE OR WARRANT THAT IT WILL FIND, LOCATE, OR DISCOVER ALL OF CUSTOMER’S OR ITS AFFILIATES’ SYSTEM THREATS, VULNERABILITIES, MALWARE, AND MALICIOUS SOFTWARE, AND CUSTOMER AND ITS AFFILIATES WILL NOT HOLD CyFortress RESPONSIBLE THEREFOR. CyFortress DOES NOT WARRANT THAT: (I) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR (II) THE SERVICES WILL OPERATE ERROR-FREE. CyFortress EXPRESSLY DISCLAIMS ALL EXPRESS WARRANTIES AND ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING MERCHANTABILITY, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, OR FITNESS FOR A PARTICULAR PURPOSE. THE SERVICES ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION. THE SERVICES ARE NOT FOR USE IN THE OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES, COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, DIRECT OR INDIRECT LIFE-SUPPORT SYSTEMS, AIR TRAFFIC CONTROL, OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY, OR PROPERTY DAMAGE.

Limited Liability

TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR THEIR RESPECTIVE AFFILIATES BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, ANY LOSS OF, REPUTATION, DATA, OR DATA USE,  SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION SUCH DAMAGES FOR LOSS OF REVENUE, BUSINESS OR PROFITS, BUSINESS INTERRUPTION, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES REGARDLESS OF THE CAUSE AND WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. NOTWITHSTANDING ANYTHING TO CONTRARY, EACH OF THE PARTIES WILL BE RESPONSIBLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL INCLUDING DAMAGE FOR LOSS OF BUSINESS OR PROFITS CAUSED DUE TO A DAMAGE TO A PARTY’S REPUTATION WHICH WAS CAUSED BY AN ANY ACT AND/OR OMISSION OF THE OTHER PARTY. EXCEPT FOR DAMAGE TO REPUTATION HEREIN, CUSTOMER’S OBLIGATIONS TO PAY ANY APPLICABLE FEES UNDER THIS AGREEMENT AND ANY LIABILITY ARISING UNDER SECTIONS 9 (INTELLECTUAL PROPERTY RIGHTS) AND 13.2 (INDEMNIFICATION), UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL AND AGGREGATE LIABILITY FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING WITHOUT LIMITATION CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY, OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER (AND/OR THE PARTNER (AS APPLICABLE) TO CyFortress HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM.

Indemnification

13.1 CyFortress agrees to defend, at its expense, any third party action or suit brought against the Customer alleging that the Services, when used as permitted under this Agreement, infringes Intellectual Property Rights of a third party (“IP Infringement Claim”); and CyFortress will pay any damages awarded in a final judgment against the Customer that are attributable to any such claim. If the Services become, or in CyFortress’s opinion are likely to become, the subject of an IP Infringement Claim, then CyFortress may, at its sole discretion: (i) procure for the Customer the right to continue using the Services (or any part thereof); (ii) replace or modify the Services to avoid the IP Infringement Claim; or (iii) if options (i) and (i) cannot be accomplished despite CyFortress’s reasonable efforts, then CyFortress may immediately terminate this Agreement with a written notice to the Customer and/or the Partner (as applicable) and provide a refund for any amount pre-paid by Customer or by the Partner (as applicable) for such returned Services for the remaining unused period of the Services (on a pro rata basis) and such refund shall be the sole and exclusive remedy of the Customer.Notwithstanding the foregoing, CyFortress shall have no responsibility for IP Infringement Claims resulting from or based on: (i) use of the Services in a manner not authorized in writing by CyFortress; (ii) Customer’s failure to implement any update or enhancement to the Services that is provided by CyFortress at no additional charge; (iii) the combination of the Services with equipment, devices or software not supplied and/or authorized by CyFortress or not in accordance with CyFortress’s instructions and/or the Documentation and/or that was prohibited by this Agreement or where such combination was not otherwise reasonable given the intended use of the Services; (iv) the modification of the Services by anyone other than CyFortress or a third party acting on CyFortress’s behalf unless expressly authorized by CyFortress in writing, (v) any functionality or capability provided by CyFortress in accordance with the express written technical designs, specifications, or instructions provided by the Customer or by the Partner, and (v) third party services or products.Section 13.1 states CyFortress’s entire liability, and Customer’s exclusive remedy, for claims or alleged or actual infringement in relation to the Services.

13.2 Customer shall indemnify, defend, and hold harmless CyFortress, its directors, officers, employees and agents and their respective successors, heirs and assigns (the “CyFortress Indemnities“), against any liability, damage, loss, or expense (including reasonable attorneys’ fees and expenses of litigation) incurred by or imposed upon any of CyFortress Indemnities in connection with any claims, suits, actions, demands or judgments (“Claims“) arising out of any theory of liability (including without limitation actions in the form of tort, warranty, or strict liability and regardless of whether such action has any factual basis) concerning any act or omission by You, and/or anyone on Your behalf, which constitutes (i) a breach of this Agreement; or (ii) which are in violation of any rights of any third party.

13.3 For purposes of Sections 13.1 and 13.2, with respect to a third-party claim, the party seeking indemnification (the “Indemnified Party”) will promptly notify the party from which indemnification is requested (the “Indemnifying Party”) in writing of any indemnifiable claim. The Indemnified Party shall give the Indemnifying Party full information and assistance for the defense and settlement of such claim and at Indemnifying Party’s request shall give the Indemnifying Party full authority, for the defense and settlement of such claim. The Indemnifying Party shall not settle any claim indemnifiable by the Indemnifying Party without the Indemnified Party’s prior written consent if such settlement contains an admission of liability or fault attributable to the Indemnified Party or any equitable relief.

Suspension

CyFortress may immediately suspend Customer’s access to, or use of, the Services if: (i) CyFortress believes that there is a significant threat to the security, integrity, functionality, or availability of the Services or any content, data, or applications in the Services; (ii) Customer and/or its Permitted Users and/or Customer Contractors’ and/or Representatives’ and/or Affiliates’ are in breach of Section 9.2 (Restrictions); (iii) Customer and/or Partner (as applicable) fails to pay CyFortress the Fees that are due and (iv) if Partner is in breach of any provision of the Partner’s Agreement (if applicable); provided, however, that CyFortress will use commercially reasonable efforts under the circumstances to provide Customer with notice.

Term and Termination

15.1 This Agreement shall enter into force and effect on the Effective Date and shall remain in full force and effect for the period specified in the Sales Order, unless earlier terminated as set forth herein (the “Term”).

15.2 CyFortress shall be entitled to terminate this Agreement immediately upon written notice to the Customer, in the event that the Customer: (i) enters into liquidation or bankruptcy proceedings, whether voluntary or compulsory, makes a general arrangement with its creditors, or ceases to conduct its business in the ordinary course; or (ii) fails to fulfill any of its obligations or undertakings herein and does not rectify such failure within fourteen (14) days after receiving a written demand to do and (iii) if Partner is in breach of any provision of the Partner’s Agreement (if applicable) and does not rectify (if curable) such failure within fourteen (14) days after receiving a written demand to do. Notwithstanding anything to the contrary, the Customer shall be entitled to terminate this Agreement immediately upon written notice to CyFortress, in the event that CyFortress materially breached the terms of this Agreement (including the provision of the Services under this Agreement) and failed to cure such breach within sixty (60) after receiving a written notice from the Customer.

15.3 Upon termination or expiration of this Agreement: (i) Customer’s right to use the Services under this Agreement shall expire; (ii) Customer must promptly cease all use of Services and de-install all software components installed on Customer’s Endpoints; (iii) and Customer shall immediately delete and dispose of all copies of the Documentation in Customer’s or any of its Customer Contractors’ and/or Representatives’ and/or Affiliates’ possession or control.

15.4 If this Agreement is terminated by CyFortress, all Fees payable to CyFortress for the remainder of the then-current Term shall be immediately due and payable to CyFortress, and Customer shall promptly remit all such fees to CyFortress.

15.5 If this Agreement is terminated by Customer in accordance with Section 15.2 above, CyFortress shall promptly refund the pro-rata amount of any pre-paid Fees attributable to periods after the date of such termination.

15.6 The provisions of this Agreement that, by their nature and content, must survive the termination of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive.

Suspending Condition

These Terms including CyFortress’s obligations provide the Services (including any Support and Maintenance Services), including with regard to a specific end user of the Services, is conditioned and shall be subject to all applicable export control laws and regulations of the government of the State of Israel and/or US export laws and/or UK export laws (as applicable), as may be amended from time to time (the “Suspending Condition“).  If such applicable export control laws and regulation do not allow, whether now or at any point in the future, CyFortress’s sale and/or transfer of the Services, whether in general or specifically with regard to the Partner and/or any Customer any specific end-user, for any reason, these Terms (or any specific business opportunity or Sales Order, as applicable) shall be terminated and become null and void and the Customer and/or any end-user shall have no claim with respect to its termination.

Miscellaneous

17.1 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.

17.2 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.

17.3 Customer agrees that CyFortress may identify the Customer as user of its Services in its business deals; press releases; marketing materials (including but not limited to case studies); electronic, printed, and broadcast advertising; newsletters; mailings; tradeshows; other promotional materials; on the Website; or any other third-party website where CyFortress or its designated agents may promote the Services. Customer hereby grant CyFortress and its agents an irrevocable, perpetual, worldwide, non-exclusive, fully paid-up, royalty-free license (with right to sublicense) to use, reproduce, publish, and display Customer’s name, trademarks, service marks, designs, logos, and symbols in connection with such purpose.

17.4 Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, this Agreement may be assigned by either Party in connection with a merger, consolidation, sale of all of the equity interests of the Party, or a sale of all or substantially all of the assets of the Party to which this Agreement relates. This Agreement is binding upon and inures to the benefit of the Parties and their respective successors and assigns.