(the “Agreement”) governs your (“Customer”) use of Minerva Labs Ltd.’s (the “Company”) platform and services, including any software code, algorithms, utility, application software interfaces, tools, reports, analytics capabilities and related documentation (collectively, the “Platform” or “Service(s)”). The particular Service package(s) that were ordered by the Customer are specified in the applicable order (the “Purchase Order“). The Company and the Customer shall each be regarded as a “Party”, and collectively as the “Parties”.
By (a) online acceptance of this Agreement; (b) purchasing a Platform subscription and/or any Service package under a Purchase Order; and/or (c) accessing or using the Services, the Customer acknowledges and agrees that s/he has read and understood this Agreement, agrees to be bound by its provisions, and to comply with all applicable laws and regulations regarding the use of the Services. The earlier of (a)-(c) shall be deemed the “Effective Date” of this Agreement. IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT ACCESS OR USE THE PLATFORM/SERVICES IN ANY MANNER.
The following terms and conditions govern the Customer’s use of the Services under this Agreement:
1. Platform License Grant.
1.1. License. The Company hereby grants to Customer, and Customer hereby accepts, a limited, personal, non-exclusive, non-sublicensable, non-transferable and revocable license to access and use the Platform and its Services during the Term (as defined below), solely for Customer’s internal business purposes, all in accordance with and subject to the terms set forth in this Agreement. Access to the Platform will be granted by remote means on a Software-as-a-Service (SaaS) basis.
1.2. Updates. The terms and conditions of this Agreement apply to any update, upgrade, new version and/or additional features that may be released by the Company during the Term (subject to payment of additional fees, as applicable). If the foregoing includes a separate agreement, its terms and conditions will apply in addition to those of this Agreement, unless their agreement explicitly provides that its terms and conditions prevail over this Agreement.
1.3. Documentation. Company may make available certain Documentation (which shall be considered part of the Company’s Confidential Information (as defined below)) to Customer to be used by Customer for its internal business purposes and solely in connection with Customer’s use of the Platform during the Term. “Documentation” means Company’s standard user documentation, whether in hard copy, or in any electronic form or other media, describing the use, features and operation of the Platform.
1.4. Unless context otherwise requires, the term “Platform” shall include any API, updates, upgrades or new versions and the Documentation.
This Online SaaS Agreement
2. Maintenance and Support. The Company will provide to Customer support and maintenances services with respect to the Platform, in accordance with the standard service levels provided to its general customers (the “SLA” see the full SLA at https://minerva-labs.com/minerva-service-level-agreement ).
3. Fees; Payment Terms.
3.1. The consideration payable for the Platform and the Services shall be set forth in the Purchase Order. Unless otherwise specified in the Purchase Order, (i) Customer will pay all amounts due under this Agreement in U.S. Dollars currency; (ii) set-up fees (if any) and annual subscription fees will be paid in advance, no later than thirty (30) days following the Effective Date or each renewal date of the Agreement, as applicable; and (iii) all other amounts invoiced hereunder are due and payable within thirty (30) days of the date of the invoice.
3.2. Upon each renewal of this Agreement, the Company may change the fees payable in the upcoming Renewal Term, by providing Customer a written notice thereof at least thirty (30) days prior to renewal date. The Customer’s decision to renew the Term (in accordance with Section 17.1) shall indicate the Customer’s consent to the adjusted fees.
3.3. All fees and other amounts paid by the Customer to the Company under this Agreement are non-refundable (with the exception of Customer’s termination during the Trial Period, per Section 17.2 below). Any amount not paid when due 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. All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other direct or indirect taxes, charges, levies and duties. All taxes, withholdings and duties of any kind payable with respect to Customer’s use of the Platform and Services under this Agreement, other than taxes based on Company’s net income, shall be borne and paid by Customer.
4. Account. An account will be created in connection with Customer’s use of the Platform and Services (the “Account”), to be accessed and/or used solely by Customer’s employees or service providers who are explicitly authorized by Customer to use the Platform (each, a “Permitted User”). Customer hereby acknowledges and agrees: (i) to keep, and ensure that the Permitted Users keep the Account login details and passwords secured at all times, and otherwise comply with the terms of this Agreement; (ii) to remain solely responsible and liable for the activity that occurs in the Account and for any breach of this Agreement by a Permitted User; and (iii) to promptly notify Company in writing if Customer becomes aware of any unauthorized access or use of the Account or the Platform.
5. Prohibited Uses. Customer and/or its Permitted Users may only access the Platform via the Account. Except as expressly permitted herein, without the prior written consent of Company, Customer must not, and shall not allow any Permitted User or any other third party to, directly or indirectly: (i) modify, incorporate into or with other software, or create a derivative work of any part of the Platform; (ii) sell, license (or sub-license), lease, assign, transfer, pledge, or share Customer’s rights under this Agreement with or to anyone else; (iii) copy, distribute or reproduce the Platform for the benefit of third parties; (iv) disclose the results of any testing or benchmarking of the Platform to any third party, or use such results for Customer’s own competing software development activities or use the Platform in order to build or support, and/or assist a third party in building or supporting, products or services which are competitive to Company’s business; (v) modify, disassemble, decompile, reverse engineer, revise or enhance the Platform or attempt to discover the Platform’s source code or the underlying ideas or algorithms of the Platform. For the avoidance of doubt, such restriction shall also apply to any on-prem agent; (vi) use the Platform in a manner that violates or infringes any rights of any third party, including but not limited to, right of privacy, proprietary rights or intellectual property rights of any third parties including without limitation copyright, trademarks, designs, patents and trade secrets; (vii) remove or otherwise modify any of the Company’s trademarks, logos, copyrights, notices or other proprietary notices or indicia, if any, fixed, incorporated, included or attached to the Platform nor copy any local agent, the Documentation or any written materials accompanying the Platform; (ix) use the Platform for any purpose other than for the purpose for which the Platform is designated for or other than in compliance with the terms of this Agreement; (x) circumvent, disable or otherwise interfere with security-related features of the Platform or features that enforce limitations on the use of the Platform; (xi) use any automated means to access the Platform; (xii) use the Platform without receiving all applicable consents for the collection and processing of personally identifiable information as required under any applicable law; (xiii) integrate the Platform (or any part thereof) into Customer’s hardware or systems other than as instructed by the Company; (xviii) ship, transfer, or export the Platform into any country, or make available or use the Platform in any manner, prohibited by applicable laws (including without limitation export control laws, as applicable); (xiv) violate or abuse log-in and/or password protections governing access to the Platform; (xv) allow any third party other than the Permitted Users to use the Platform; (xvi) access, store, distribute, or transmit during the course of its use of the Platform 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 unlawful, threatening, obscene or infringing material; and/or (xvii) use the Platform in any other unlawful manner.
6. Minimum Purchases/Inspections. Certain minimum usage requirements (such as the number of inspections/tests) may be specified in the Purchase Order. Customer acknowledges that the fees set forth in the Purchase Order were determined on the assumption that the Customer meets the minimum usage requirements during the Initial Term.
7. Customer Data; Analytics Information.
7.1. Customer Data. The operation of the Platform and the provision of the Services require the Company to monitor, analyze and process data from the Customer’s systems (the “Customer Data”).
7.2. Processing of Customer Data. Customer shall upload to the Platform the Customer Data, as to allow the Company to provide the Services. The Customer Data must not include personally identifiable information. The Customer agrees that the Company will collect, monitor, store, analyze, process and use the Customer Data, on the Customer’s behalf, in order to provide the Services. As between Company and Customer, the Intellectual Property Rights (as such term is defined below) and all other right, title and interest of any nature in and to the Customer Data, which may be stored on the Company’s database, are and shall remain the exclusive property of Customer and its licensors. The Company shall be considered granted a non-revocable, non-exclusive, assignable, sub-licensable, royalty-free and fully paid up license to use the Customer Data, in order to provide the Services. For the avoidance of doubt, the Company shall not be responsible for any failure or delay that is attributable to Customer’s late delivery of the Customer Data. Except as set forth herein, nothing in this Agreement shall be construed as transferring any right, title or interests in the Customer Data to the Company or any third party.
7.3. Anonymous Non-identifiable Analytics. The Company may collect, disclose, publish and use in any other manner anonymous information which is derived from the use of the Platform and Services and/or the Customer Data (i.e., non-identifiable information, aggregated and analytics information that does not identify an individual person) (collectively, “Analytics Information“), in order to provide and improve the Company’s Platform and Services, for R&D purposes and for any other legitimate business purpose. The Company is and shall remain the sole owner of the Analytics Information.
8. Customer Warranties. Customer represents and warrants that: (i) it will use the Platform and Services in compliance with any applicable laws, including without limitation privacy protection laws; (ii) it obtained all approvals, consents, authorizations, permits or licenses required for the use, monitoring, processing, analyzing, storing and transferring of the Customer Data by the Company (or on its behalf) for the purpose of providing the Services; (iii) it obtained all applicable governmental permits or certifications which may be required for the use of the Customer Data by the Company for the purpose of providing the Services; and (iv) it will not transfer or make available to the Company any personally identifiable information.
9. Mutual Warranties. Each Party represents and warrants (a) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and (b) that the execution and performance of this Agreement will not conflict with any obligations it has towards third parties, or violate any provision of any applicable law.
Without prejudice to the Company’s rights under other Sections of this Agreement:
10.1. The Platform. The Platform is not for sale and is and shall remain 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 Platform and/or the Services and any and all derivative works, improvements, enhancements, updated and upgrades thereof or thereto are and shall remain owned solely by the Company or its licensors. This Agreement does not convey to Customer any interest in or to the Platform but only, as aforesaid, a limited revocable right to use the Platform, in accordance with the terms of this Agreement, and nothing herein constitutes a waiver of the Company’s Intellectual Property Rights under any law. “Intellectual Property Rights” means: (i) patents and patent applications throughout the world, including all reissues, divisions, continuations, continuations-in-part, extensions, renewals, and re-examinations of any of the foregoing, all whether or not registered or capable of being registered; (ii) common law and statutory trade secrets and all other confidential or proprietary or useful information that has independent value, and all know-how, in each case whether or not reduced to a writing or other tangible form; (iii) all copyrights, whether arising under statutory or common law, whether registered or not; (iv) all trademarks, trade names, corporate names, company names, trade styles, service marks, certification marks, collective marks, logos, and other source of business identifiers, whether registered or not; (v) moral rights in those jurisdictions where such rights are recognized; (vi) any rights in source code, object code, mask works, databases, algorithms, formulae and processes; and (vii) all other intellectual property and proprietary rights, and all rights corresponding to the foregoing throughout the world.
10.2. Feedback. If Customer contacts Company with feedback data (e.g., questions, comments, suggestions or the like) regarding the Services and/or Platform (collectively, “Feedback”), such Feedback shall be deemed non-confidential, and the Company shall have a non-exclusive, royalty-free, worldwide, perpetual license to use or incorporate such Feedback into the Platform and/or other current or future products or services of the Company (without the Customer’s approval and without further compensation to the Customer).
11. Confidentiality. Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, whether written or oral, and any other information that a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). 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. Neither Party shall use or disclose the Confidential Information of the other Party except as expressly permitted under this Agreement or by applicable law. For the avoidance of doubt, a recipient Party may disclose the other Party’s Confidential Information to its officers, employees, services providers or advisors solely on a “need to know” basis, and provided that they are bound by similar nondisclosure obligations as those of this Agreement. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of its disclosing Party.
12. Reference Customer. Customer agrees that Company may identify Customer as a user of the Platform and/or the Services and use Customer’s trademark and/or logo (i) in sales presentations, promotional/marketing materials, and press releases, and (ii) in order to develop a brief customer profile for use by Company on Company’s website or social media accounts for promotional purposes.
13. LIMITED WARRANTIES.
13.1. The Company represents and warrants that, under normal authorized use, the Platform 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 repair the Platform in accordance with the SLA. The foregoing warranties shall not apply if the failure of the Platform results from or is otherwise attributable to: (i) repair, maintenance or modification of the Platform by persons other than the Company or its authorized agent; (ii) accident, negligence, abuse or misuse of the Platform; (iii) use of the Platform other than in accordance with the Documentation and/or the Company’s instructions; (iv) the combination of the Platform with equipment or software not authorized or provided by the Company or otherwise approved by the Company in the Documentation; (v) any downtime, defect or error caused by or attributable to any third party software, technology or system that is beyond the control of the Company, and/or (vi) during any evaluation or testing period.
13.2. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM (INCLUDING ANY REPORTS GENERATED IN OR VIA THE PLATFORM) AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS. IN ADDITION TO OTHER DISCLAIMERS CONTAINED IN THIS AGREEMENT, THE COMPANY DOES NOT WARRANT THAT THE PLATFORM (INCLUDING THE REPORTS) AND/OR THE SERVICES WILL INREASE THE CUSTOMER’S REVENUES OR MEET CUSTOMER’S REQUIREMENTS, THAT THE PLATFORM’S OPERATION AND THE SERVICES WILL BE SECURED AT ALL TIMES, UNINTERRUPTED, ERROR-FREE, FALSE-POSITIVES FREE, FREE OF VIRUSES, BUGS, WORMS, OTHER HARMFUL COMPONENTS OR OTHER SOFTWARE LIMITATIONS. WITHOUT DEROGATING FROM THE FOREGOING, COMPANY SHALL NOT BE RESPONSIBLE FOR CUSTOMER’S DETERMINATION WHETHER TO ACT ON THE BASIS OF ANY REPORTS AND FOR ANY OUTCOMES OF SUCH DECISION.
13.3. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY EXPRESSLY DISCLAIMS ALL EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INTERFERENCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.13.4. COMPANY SHALL NOT BE RESPONSIBLE FOR UNAUTHORIZED ACCESS TO OR ALTERATIONS OF THE CUSTOMER DATA, TO THE EXTENT THAT SUCH ACCESS OR ALTERATION IS NOT DUE TO COMPANY’S WILLFUL MISCONDUCT.
14. LIMITATION OF LIABILITY.
14.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY, ITS LICENSORS, SUPPLIERS, AFFILIATES, DISTRIBUTORS AND RESELLERS SHALL NOT BE LIABLE WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OR DAMAGE, INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO, ANY LOSS OR DAMAGE TO BUSINESS EARNINGS, LOST PROFITS OR GOODWILL AND LOST OR DAMAGED DATA OR DOCUMENTATION), SUFFERED BY ANY PERSON, ARISING FROM, RELATED TO, AND/OR CONNECTED TO, ANY USE OF OR INABILITY TO USE THE PLATFORM (INCLUDING APPLICABLE INSTALLATIONS, IF ANY) AND/OR THE REPORTS AND/OR THE SERVICES, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14.2. IN ANY CASE, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, THE COMPANY’S, ITS LICENSORS’, SUPPLIERS’, AFFILIATES’ DISTRIBUTORS’ AND/OR RESELLERS’ TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES OR LOSSES WHATSOEVER ARISING HEREUNDER OR IN CONNECTION WITH THE CUSTOMER’S USE OR INABILITY TO USE THE PLATFORM AND/OR THE REPORTS AND/OR THE SERVICES SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO COMPANY UNDER THE APPLICABLE PURCHASE ORDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. INASMUCH AS SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OR LIMITATIONS AS SET FORTH HEREIN, THE FULL EXTENT OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY.
15. Company’s Indemnification.
15.1. Company acknowledges and agrees to defend, at its expense, any third party action or suit brought against the Customer alleging that the Platform infringes intellectual property rights held by any third party (“IP Infringement Claim“), and the Company will pay any damages awarded in final judgment against the Customer that are attributable to any such claim, suit or proceeding; provided that (i) the Customer notifies the Company promptly in writing of such claim; and (ii) the Customer grants the Company authority to handle the defense or settlement of any such claim, suit or proceeding and provides the Company with all reasonable information and assistance, at Company’s expense. The Company will not be bound by any settlement that the Customer enters into without the Company’s prior written consent.
15.2. If the Platform becomes, or in the Company’s opinion is likely to become, the subject of an IP Infringement Claim, then the Company may, at its sole option and expense (a) procure for the Customer the right to continue using the Platform; (b) replace or modify the Platform to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot accomplished despite the Company’s reasonable efforts, then the Company may discontinue providing the Platform (and related Services) and provide the Customer a prorated refund based on the remainder of the applicable Platform subscription (license) term.
15.3. Notwithstanding the foregoing, the Company shall have no responsibility for any IP Infringement Claim resulting from or based on: (i) modifications to the Platform made by any party other than the Company or its designee; (ii) the Customer’s failure to use updated or modified versions or patches provided by the Company specifically to avoid such infringement; or (iii) the combination or use of the Platform with equipment, devices or software not supplied or authorized by the Company, or not in accordance with the Company’s instructions.
15.4. THE FOREGOING TERMS STATE THE COMPANY’S SOLE AND EXCLUSIVE LIABILITY AND THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.
16. Customer’s Indemnification. The Customer agrees to defend, indemnify and hold harmless the Company, its officers, directors, employees, agents and resellers, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney’s fees) arising from: (i) the Customer’s breach of its warranties, obligations and undertakings under this Agreement; and (ii) a third party claim, suit or proceeding alleging that the use of the Customer Data within the scope of this Agreement infringes, or may infringe, any intellectual property, publicity or privacy right of a third party.
17. Term and Termination.
17.1. This Agreement shall enter into force and effect on the Effective Date and shall remain in full force and effect for one (1) year (the “Initial Term”). Thereafter, this Agreement shall be renewed automatically for successive one (1) year terms (each, a “Renewal Term”), unless either Party provides to the other Party at least thirty (30) days prior written notice of its intent not to renew this Agreement. The Initial Term, together with any applicable Renewal Terms, shall be referred to herein as the “Term”.
17.2. Either Party may terminate this Agreement with immediate effect if the other Party materially breaches this Agreement and such breach remains uncured (to the extent that the breach can be cured) thirty (30) days after having received written notice thereof; except that the curing period for non-payment shall be ten (10) days following said notice.
17.3. In the event that either Party becomes liquidated, dissolved, bankrupt or insolvent, whether voluntarily or involuntarily, or shall take any action to be so declared, the other Party shall have the right to immediately terminate this Agreement.
17.4. Upon termination or expiration of this Agreement: (i) Company will cease from providing the Services hereunder, the licenses granted to Customer under this Agreement shall expire, and Customer shall discontinue all further use of the Platform; (ii) Customer shall immediately permanently delete all copies of the Documentation in Customer’s or any of its representatives’ possession or control; (iii) the receiving Party shall immediately return and/or permanently delete (as instructed by the disclosing Party) the Confidential Information, other than data that the recipient is required to retain by law, regulation or governmental order; and (iv) any sums paid by the Customer until the date of termination are non-refundable (with the exception of termination during the Trial Period), and Customer shall not be relieved of its duty to discharge in full all due sums owed by the Customer to Company under this Agreement until the date of termination or expiration hereof, which sums shall become immediately due and payable on the date of termination or expiration of the Agreement. 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. Termination of this Agreement shall not limit either Party from pursuing any other remedies available to it under applicable law.
18. Miscellaneous. This Agreement (including the Purchase Order and the SLA) represents the complete agreement concerning the subject matter hereof and may be amended only by a written agreement executed by both Parties. For the avoidance of doubt, any Customer purchase or order terms that may be attached to the Agreement by the Customer shall not apply and have no binding effect. 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. Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign this Agreement without the consent of the other in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to this Agreement or similar transaction. 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. The competent courts located in Tel-Aviv, Israel, shall have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement. 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. Company will not be liable for any delay or failure to provide the Services resulting from circumstances or causes beyond the reasonable control of the Company (i.e., force majeure events). 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 instrument.
I HAVE READ AND UNDERSTOOD THIS AGREEMENT AND AGREE TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS.