THIS SAAS AGREEMENT (this “Agreement“), is by and between (collectively the “Parties“):
MoovingON Ltd. CN# 514747740 (“Company” or “MoovingON”); and
The Customer identified in the Business Offer (BO) (as defined below) (“Customer”);
WHEREAS MoovingON owns all the rights, including Intellectual Property Rights, in the Software (as hereunder defined); and
WHEREAS Customer wishes to use to Software according to the license granted hereunder; and
WHEREAS The Parties have executed the Business Offer (BO), which is an integral part of this Agreement;
THEREFORE, in consideration of the covenants, representations and warranties set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:
- “XiteiT“, “Software” means XiteIT software “CloudOps” platform which provides solution for cloud operation team to manage production issues and work process from one platform using Web application.
- “Authorized Users” means individuals who are directly accessing the Services via an online sign-up process, or individual users authorized by Customer to use the Services and who Customer have supplied user identifications and passwords to. Authorized Users may include Customer’s employees, consultants, contractors, agents, or Customer’s other designees, but shall not include any employee or agent of any Company’s competitor. Number of Authorizes Users is defined in the BO.
- “Business Offer” or “BO” is the executed statement of work / business offer/ quote, which includes, among others, provisions regarding the Software description, the price, duration of the engagement, notice period etc. The BO is incorporated to this Agreement by reference and is an integral part of this Agreement.
- “Effective Date” means as determined under the BO.
SOFTWARE AS A SERVICE
- XiteiT is offered as a Service (SaaS) and therefore accessible through Customer’s internet browser on computers. In this Agreement, the “Services” shall include the use of the Software as a service regarding any devices it’s been used on. No software installation is required on Customer servers and/or desktop computers. The Services shall be used by the Customer through its Authorizes Users (as defined below).
- The purpose of this Agreement (hereafter referred to as the “Agreement“) is to set forth and define an arrangement under which Company will provide the Services for the benefit of the Customer. The details of the Services are provided in the Software description section detailed in the BO.
GRANT OF LICENSE, USE OF SERVICES AND SUPPORT
- Rights Granted to Customer. Subject to the terms and conditions of this Agreement, the Company agrees to grant to Customer a non-exclusive, non-transferable, non-sublicensable right to use the Services for Customer’s internal business purposes.
- System modifications, changes and additions.
- The Company shall have the right at any time and from time to time, at its sole discretion, and upon prior 30 days’ notice to Customer, to make substitutions and modifications to the System.
- In addition, the Company has the right to add features to existing application and/or software in accordance with Customer’s requests, with or without cost, at Company’s discretion.
- Support. The Company shall provide technical support services to Customer during the term of this Agreement. All Maintenance and Support Services will be provided via in accordance with the provisions of “XiteIT SLA” document (https://www.xiteit.com/SLA)
CUSTOMER REPRESENTATIONS AND OBLIGATIONS
Without derogating from Customer’s obligations, warranties and representations under this Agreement Customer hereby undertakes as follows:
- Customer has the right and power to enter into this Agreement and has the ability and experience to carry out the obligations assumed by it under this Agreement.
- Customer acknowledges and aware that the Services requires access to high speed internet. Customer is obligated to provide such access for the purpose of using the Services (Wireless or wired).
- Customer undertakes not to (i) sell, license (or sub-license), lease, assign, transfer, pledge, or share the Software and/or the Services or any part of it with/to any third party; (ii) copy, modify, translate, reverse engineer, decompile, disassemble, make any attempt to discover the source code of any part of the Software and/or the Services or create derivative works thereof; (iii) transmit or upload any viruses, spyware or other harmful, infringing, illegal, disruptive or destructive content, messages or files to any part of the Software and/or the Services; (iv); attempt to interfere with, hack into or decipher any transmissions to or from the servers for the Software and/or the Services.
PRICING AND LICENSE FEES.
- Customer shall pay to the Company license fees in accordance with the provisions of the BO.
- All payments to The Company under this Agreement shall be made in currency that shall be decided between the parties in writing (NIS /USD/EUR), by wire transfer to The Company’s account designated in writing by The Company from time to time during the term of this Agreement.
- Customer shall not be entitled to withhold or delay any payment due to Company hereunder, and shall not set off or deduct therefrom any amounts whatsoever.
- Taxes. Customer shall pay or shall reimburse Company for all sales taxes and other taxes, however characterized by the taxing authority, based upon the license fees or other charges under this Agreement or otherwise incurred on account of Customer’s use of the Services, except for any taxes based upon Company’s net income or gross receipts or for any franchise or excise taxes owed by Company. If Customer is a tax-exempt organization, then, upon Company’s receipt of proof of such status, then Company shall not charge Customer for any taxes from which Customer is exempt.
- Pricing Changes. Customers will receive notice of changes in pricing at least 45 days before each anniversary of the Effective Date.
- In the event of late payment, Company may assess interest on overdue payments at the rate of one and one half percent (1.5%) per month, or the maximum lesser rate allowed by law, from the due date for payment until payment is received by Company (whether before or after judgment), accruing on a daily basis and compounding monthly, without thereby derogating from other rights and remedies afforded to Company under this Agreement and/or under any applicable law.
- Notwithstanding the provisions of Section 7.3 below, Customer’s failure to pay, for any reason, undisputed amounts within thirty (30) days from the due date for payment, shall constitute a material breach of this Agreement by Customer, entitling Company (after giving 30 days written notice to Customer to amend the said breach in which he failed to do so) to forthwith terminate this Agreement, and without thereby derogating from other rights and remedies afforded to The Company under this Agreement and/or under any applicable law.
- Ownership of Proprietary Rights. The Software and the Services, including without limitation any underlying data, software, platforms, algorithms, technology, application and website design, any information, services, texts, feedback, files, sound, music, videos, various applications, social graphs, organization, structure, specifications, features and any modifications, enhancements and derivatives thereof and all Intellectual Property Rights related thereto are the property of the Company and/or its respective affiliates which retains all right, title and interest in connection therewith. All other proprietary rights are detailed on XiteiT Term of Use document (https://www.xiteit.com/tou).
- It is agreed that modifications and/or changes and/or developments to the Software and/or Services developed by the Company at Customer’s request (for any purpose) shall be owned by the Company only. For avoidance of doubt, it is agreed that Customer hereby assigns to Company, all rights, title and interest (including, without limitation, all patent rights, design rights, copyrights and trade secrets) in any modifications or improvements to the Software and/or the Services which Customer may propose or make during the Term.
- Customer Material. The Company acknowledges that all written or electronic or oral information, documents, descriptions, designs, data or other material , which Customer (or anyone of its behalf) will upload to XiteiT or gathered by XiteiT in the course of the performance of Services to the Customer (“Customer Data“) are owned by or otherwise proprietary to Customer or its third party licensors. The Company acknowledges and agrees that this Agreement does not grant any right, title or interest in and to any patents, copyrights, trade secrets, trademarks or other property rights or rights of ownership in such material or any confidential or proprietary information of Customer in whatever form (“Customer IP”), and acknowledges that such Customer IP is intellectual property belonging to Customer or its licensors (as applicable).
TERM AND TERMINATION
- The term of this Agreement shall be as detailed in the BO or until terminated according to the provisions set forth in section 7.2 below (“Term”).
- Termination for Cause. Either party may terminate this Agreement for Cause, effective immediately, upon written notice, under the following circumstances:
- If the other party (i) assigns this Agreement in contradiction with the terms of this Agreement or (ii) neglects or fails to perform or absorb any of its obligations hereunder, and such failure is not cured within 30 (Thirty) days after written notice thereof.
- If either party should: (i) admit in writing its inability to pay its debts generally as they become due; (ii) make a general assignment for the benefit of creditors; (iii) institute proceedings to be adjudicated a voluntary bankrupt or consent to the filing of a petition of bankruptcy against it; (iv) be adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; or (v) have a decree entered against it by a court of competent jurisdiction appointing a receiver, liquidator, trustee or assignee in bankruptcy or insolvency covering all or substantially all of such party’s property or providing for the liquidation of such party’s property or business affairs, then the other party may terminate this Agreement.
- Obligations Upon Termination. Upon termination of this Agreement: (i) provided that Customer has paid all amounts owed to Company hereunder, Company shall, upon written request received within 30 days of termination, provide to Customer access rights to the Services for a period of 24 hours for the limited purpose of exporting Customer’s Data; (ii) Company shall immediately terminate access to Company Services by Customer; and (iii) Customer shall immediately pay Company any amounts payable or accrued but not yet payable to Company, including any deferred payments or payments originally to be made over time.
- Warranty Obligation. The Company warrants solely to Customer that the Services will be free from material defects in materials and workmanship, when given normal, proper and intended usage, and will perform in accordance with the Company’s documentation provided on the training process.
- Limited Warranty. THE COMPANY WARRANTS THAT ON THE DATE OF DELIVERY TO CUSTOMER, THE SERVICES WHEN USED PROPERLY, WILL PROVIDE THE FUNCTIONS AND FACILITIES DESCRIBED IN THE SERVICES AND THE DOCUMENTATION ISSUED BY THE COMPANY.
- Disclaimer. EXCEPT FOR THE WARRANTIES STATED IN THIS SECTION 7 THE SERVICES, ARE PROVIDED “AS IS” WITHOUT ADDITIONAL WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. THE COMPANY DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF USE, OF THE PROGRAMS IN TERMS OF CORRECTNESS, ACCURACY, COMPLETENESS, RELIABILITY, CURRENTNESS, OR OTHERWISE.
- THE COMPANY MAKES NO OTHER WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF COMPANY, AND EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S LIMITATION OF LIABILITY UNDER THIS SECTION SHALL NOT APPLY TO ACTS OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
- THE COMPANY’S AGGREGATE LIABILITY UNDER ANY CLAIMS ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE AVARAGE MONTHLY FEES (ONE MONTH) PAID BY CUSTOMER TO THE COMPANY UNDER THIS AGREEMENT.
LIMITATION OF LIABILITY
- The Company is not responsible for any problems or technical malfunction of any internet network, computer online software, servers or providers, computer equipment, or software due to technical problems or traffic congestion on the internet or on the Services, including any injury or damage to users or to any person’s computer or mobile device related to or resulting in connection with the Services.
- Customer acknowledges that the use of the Services is done on Customer’s own risk for its internal business only. Any actions taken due to such Services’ outcomes is under Customer sole responsibility. The Company shall not be liable regarding any forbidden and / or reckless and / or malice use of the Services and/or the Software, which may cause damage (direct, indirect, incidental, special etc.) to Customer and / or Customer Authorized Users (as defined on XiteiT Term of Use document (https://www.xiteit.com/tou)) and/ or devices / equipment and /or sites, other than the warranties the Company provided under this Agreement and the applicable Law.
- The Company’s Indemnity. Except as provided below, the Company shall indemnify, defend, and hold Customer harmless from and against all claims, suits, demands, actions and proceedings, judgments, penalties, damages, settlements, costs and expenses (including reasonable legal fees and costs), losses or liabilities (“Damages”) arising out of a claim that the Software and / or the Services (or any part of it) infringe any patent, copyright, trade secret, service mark or trademark of a third party.
- Customer Indemnification. Customer shall defend, indemnify, and hold harmless the Company, its affiliates, directors, officers, employees, and agents from Damages, which are in connection with or arising out of a claim (i) alleging that the Customer Content or your use of the Services infringes or violates the intellectual property rights, privacy rights, or other rights of a third party or violates applicable law; (ii) relating to, or arising from, Customer Content, or Customer breach of Section 2.2 or Section 2.4 of XiteiT Term of Use document (https://www.xiteit.com/tou); or (iii) relating to, or arising from, Third-Party Services, as this term defined on XiteiT Term of Use document (https://www.xiteit.com/tou).
- The Company and Customer may disclose to each other certain Confidential Information (defined below). The Company and Customer agree that the Confidential Information is the sole and exclusive property of the disclosing party and that the disclosing party owns all world-wide rights therein under patent, copyright, trade secret, confidential information, or other proprietary rights. the Company and Customer shall hold in confidence and will not, directly or indirectly, use, reproduce, distribute, reverse engineer, decompile, transfer, or disclose the Confidential Information or any portion thereof.
- The Company and Customer’s obligations with regard to the Confidential Information shall survive the termination of this agreement, until become generally available to the public other than as a result of an unauthorized disclosure. As used herein, “Confidential Information” shall include, without limitation, all trade secrets, data, formulae, processes, procedures, methods, documentation, information, records, drawings, designs, specifications, test results, evaluations, know how, materials related to tests, business, customers, assets, products, processes, nature and activity between the Parties, or prospects related to the You, any and all Customer IP, and any and all Work Product. The term “Confidential Information” shall not include information that is or becomes part of the public domain through no act or fault of us.
SECURITY AND DATA PROTECTION
- Company undertakes to keep Customer’s information secured and private. Therefore, Company shall: (i) protect the security and integrity of Customer’s Confidential Information and Customer Data using and maintaining adequate administrative, technical and physical safeguards consistent with industry standards and all applicable laws to protect against anticipated threats or hazards to, or the unauthorized access, disclosure or use of, Customer Data or Confidential Information; (ii) comply with the information security standards and requirements set forth under the Israeli Law and (iii) implement, maintain and update commercially reasonable and current security measures, procedures, policies, controls and practices, which shall test and prevent unauthorized access to Company’s system as well as Customer Data stored on Company’s system (if applicable).
- It’s clarified that as part of providing Customer the Services, Company does not intend to process any personal data, as it’s defined under the Israeli Law and/or the EU General Data Protection Regulation (Regulation 2016/679) (“GDPR”) (hereinafter: “Personal Data“). However, to the extent that Company, for any reason, process such Personal Data, Company shall do so on Customer’s behalf, solely for the purpose of providing Customer with the Services and according to Customer’s instructions and under the applicable law. In the event where Company will not be reasonably able to comply with amendment(s) to the applicable privacy law without incurring material additional costs, Company shall: (i) immediately inform Customer in writing, and will provide full details of the requirements that it cannot comply with, as well as the reasoning for such noncompliance; and (ii) cease all processing of the affected data (other than securely storing those data) until revised instructions are received.
- The parties will use their best efforts to resolve any dispute arising out of or relating to this Agreement through good faith negotiations, to be carried out during thirty (30) days for one party’s notice to the other regarding such dispute. The parties shall not make any claims for remedies based on an alleged breach of a party’s obligations, assert any right to terminate, provide notice of termination, or commence any other dispute resolution process, without first endeavoring to resolve the matter through good faith negotiations as set out above.
- Any claim, whether based on contract, tort or other legal theory (including, but not limited to, any claim of fraud or misrepresentation), arising out or relating to this Agreement or any Order, including its validity, enforceability, interpretation, performance, breach or termination, not resolved by good faith negotiations as specified above, shall be resolved exclusively and finally by binding arbitration to be carried out by an agreed arbitrator in accordance with the substantive law governing this Agreement (as set forth in Section 11.4 below).
- Such arbitration shall be conducted in Tel Aviv Israel, in the Hebrew language, by a sole agreed arbitrator.
- All proceedings, pleadings, discovery (oral and written), decisions, orders, awards and judgments resulting from the arbitration hereunder shall be confidential.
- Publicity. Without derogating from the provisions of Section 11 above, the parties agree to use the name of each other and trade names or trademarks in any marketing materials and publicity releases.
- Entire Agreement. This Agreement together with the BO and the related Exhibits referred to herein set forth the entire and complete agreement between the parties hereto relating to the subject matter hereof and supersedes any prior written or oral agreement or understandings between the parties with respect to the subject matter hereof. This Agreement may be amended only by a writing signed by the parties hereto.
- Assignment. Neither party may assign or otherwise transfer this any of its rights or obligations under this Agreement without the prior written consent of the other party, except that either party may, without having to obtain the other party’s consent, assign or otherwise transfer its rights and obligations under this Agreement to (i) a subsidiary or parent of such party, or (ii) a third party that acquires all or substantially all of such party’s assets, whether via merger or otherwise.
- Independent Contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership or other joint relationship between Customer and the Company. Neither party shall have the ability to incur any obligation on behalf of the other party.
- Governing Law. This Agreement and its validity, construction and performance shall be governed in all respects by the laws of the State of Israel without regard to its rules governing conflict of laws. The parties hereby irrevocably submit to the exclusive jurisdiction of the competent courts of Tel Aviv, Israel.
- Notices. All notices or other communications permitted or required to be given pursuant to this Agreement shall be in writing and shall be deemed duly given, if delivered personally, at the time of delivery to the registered office of the addressee or, if sent by certified mail to such address, within 3 business days after the posting thereof or, if given by facsimile (including acceptance confirmation), at the time of dispatch thereof.
Last Update: June-18-2020