MASTER SERVICE AGREEMENT
[Last updated: 15 May, 2023]
The Agreement forms a legally binding and enforceable agreement between Wib Security Ltd. (“Wib”) and customer, a legal entity or an individual entering this Agreement on behalf of and under the authorization of the legal entity (“Customer”).
If the Customer using the Services is an employee, contractor, partner or otherwise, the Customer represents that it has the authority to sign, accept and to bind such entity to the terms and conditions of this Agreement. If the Customer does not have such authority the Customer shall not enter this Agreement.
If the Customer is entering this Agreement on its own behalf, for its own personal use, the Customer undertakes that it is at least 18 years old, otherwise, please don’t register or use the Services. Wib may, in its sole discretion, refuse to offer access to or use of the Services from any person or entity, and change its eligibility criteria at any time.
The “Effective Date” of this Agreement is the date of executions and signing of an Ordering Documentation by the parties. This Agreement will govern as the current and any future Ordering Documentation executed between the parties, as applicable.
The Customer and Wib shall each be referred to as “party” and collectively as “parties”.
1.1. “Affiliates” means any entity which is controlled by, controls or is in common control with one of the parties.
1.2. “Authorized User” means Customer’s employees, Affiliates, consultants, contractors, and agents who are selected and authorized by the Customer to access and use the Wib Platform and the Services.
1.3. “Acceptable use Policy” means Wib acceptable use policy.
1.4. “Confidential Information” means all nonpublic information, in whatever form disclosed, provided by or on behalf of either party (“Disclosing Party”) to the other party (“Receiving Party”), that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, can reasonably be understood to be confidential. Customer Data will be deemed Confidential Information of Customer without any marking or further designation. Wib Platform and the terms and conditions of this Agreement will be deemed Confidential Information of Wib without any marking or further designation. The Confidential Information shall not include information which (a) is at the time of disclosure or subsequently becomes generally available to the public, other than as a result of a breach of the Agreement by the Receiving Party; (b) was previously in the possession of the Receiving Party prior to its disclosure hereunder; (c) is independently developed by the Receiving Party without reliance on, use of or reference to the Confidential Information and without any breach of the terms of the Agreement; (d) was lawfully received by the Receiving Party from a third party having rights to disclose, and under no confidentiality obligations with respect to, such Confidential Information. Notwithstanding anything in this Agreement, a Receiving Party and its representatives may disclose Confidential Information of a Disclosing Party without liability under this Agreement to the extent such Confidential Information is compelled or required to be disclosed by law, regulation, or judicial or legal process, and to the extent requested by a regulator of Receiving Party or any of its Representatives. A Receiving Party compelled shall to the extent legally permissible provide a Disclosing Party with prompt notice of such compelled disclosure.
1.5. “Customer Account” means the dashboard in which the Customer can upload the Customer Data, review the results, and is able to manage the Services and Authorized Users and access and use all features of the Platform.
1.6. “Customer Data” means all raw data, information, code, and other content of any type and in any format uploaded by the Customer or Authorized Users to the Platform for the purpose of receiving the Service.
1.7. “Documentations” means a set of digital or printed technical user manuals, notes, instruction, summary and any other supporting documentation provided by Wib to the Customer from time to time.
1.8. “Intellectual Property” means all worldwide intellectual property rights available under applicable laws including without limitation rights with respect to patents, copyrights, moral rights, trademarks, trade secrets, know-how, etc.
1.9. “Installation” or “Installation Services” means the implementation and integration of the Software on the Customer on-premise environment.
1.10. “Ordering Documentation” means an order form, statement of work (“SOW”), incorporated by reference into, and governed by, the Agreement.
1.11. “Training” or “Training Services” means, online training sessions and written instructions, as applicable and as agreed in the Ordering Documentation certain Training Services, delivered by Wib instructors as a record online training course. If Wib agrees to provide Customer with Training Services, as set forth in the Ordering Documentation, it will be provided by qualified training personnels.
1.12. “Third-Party Materials” means open-source software programs that are made available by third parties under their respective open-source licenses.
1.13. “Usage Data” means usage and operations data, analytics, statistics, metadata that Wib collects regarding Customer’s use of the Services.
1.14. “Support Services” means the various support services provided by Wib to maintain the Service availability, including correction of errors, updates and patches as detailed below. Support Service do not include the Training Services.
1.15. “Service(s)” means a cybersecurity solution, whether on-premise or as a SaaS, providing the Customer with visibility of weaknesses and vulnerabilities found in Customer’s code, API or Customer’s production traffic. The Services may further include automatic security simulations, penetration tests, attack simulations, all as agreed by the parties through the Ordering Documentation. The Service include the Software.
1.16. “Software” means the object code form of the Wib proprietary software product(s) made available by Wib under this Agreement, whether on-premise or as a SaaS offering, and includes any accompanying components, files, modules, activation keys, Documentation, updates, and upgrades to licensed herein under the Agreement.
1.17. “System” means any application, computing or storage device, or network.
1.18. “Platform” means Wib’s web-based proprietary technology, or other infrastructure, utilized by Wib for the purpose of providing the Service.
2. SCOPE OF SERVICES
2.1. Subject to the terms herein, Wib hereby grants the Customer a limited, revocable, non-exclusive, non-transferable and non-sublicensable license to access and use the Platform and the Services, or to install and use the Software, as applicable, during the Term and solely for the purpose set forth herein.
2.2. Wib reserves the right to modify, change, update, enhance, improve, remove, replace, add or make any other changes to, or discontinue, or cease, temporarily or permanently any part or feature of the Platform and Services (such as infrastructure, security, technical configurations, etc.), provided however, that such modification will not result in a material reduction in the level of performance or availability of the applicable Services provided to the Customer for the term of the Ordering Documentation, unless Wib provides the Customer with appropriate notice.
2.3. The parties agree that Wib will provide the Installation Services and will help Customer in implementing the Services locally on Customer’s premises, unless otherwise set forth in the Ordering Documentation. Customer hereby represent and agree to provide Wib all necessary information, access (physical or remote), network connection, workspace, computing resources, and any other required access and materials as reasonably required by Wib in order to perform the Installation Services and its duties in a timely manner. The Installation Service shall be provided by skilled and professional personnel.
2.4. The Customer is required to accept all patches, bug fixes, updates, maintenance and service packs (collectively, “Patches”) necessary for the proper function and security of the Services, as such Patches are generally released by Wib from time to time. Notwithstanding the above, in the event of an on-premises solution, Customer shall grant Wib access to Customer’s environment in order to implement and install such Patches. The Customer shall provide Wib with all necessary cooperation, information and support that may reasonably be required by Wib for the performance of the maintenance and Installation Services, including, without limitation, access to suitably configured computers, software products and applicable passwords, at such times as Wib may request. Wib will not be responsible for any error or lack of availability caused due to Customer’s refuse to grant the access on a timely manner.
2.5. The Customer Account will be limited to the number of Authorized Uses, as agreed in the Ordering Documentation, except as otherwise agreed to in writing.
2.6. The Customer is responsible for all activities that occur under the Customer Account and agree to notify Wib promptly from becoming aware of any unauthorized use, misuse or security alert within the Customer Account. Wib is not responsible for any harm caused by Customer, or the Authorized Users, or individuals who were not authorized to have access to the Platform but who were able to gain access because usernames, passwords or accounts were disclosed.
3. ADDITIONAL SERVICES
3.1. Training Services are available through online sessions. The Training Service will be provided by Wib’s qualified personnel that will assist in coordinating, unless otherwise set forth in the Ordering Documentation. Wib retains all Intellectual Property rights and all other property rights related to the Training materials. In addition, Customer may separately purchase Professional Services as may be available by Wib, pursuant to applicable professional services terms and as set forth in the Ordering Documentation. Wib will own any intellectual property rights in anything provided or created by it in the performance of the Professional Services.
4. SUPPORT SERVICES
Wib will maintain a support team which have the skills, experience, knowledge and training required to provide Support Services. In order to provide the Support Services, Customer shall grant Wib with remote access to Customer’s network, and in the applicable cases, as determine by Wib support team, with Proper Physical Access to Customer’s premises. The Service shall be available 24/7 at 99.8% (“Availability”), however, Wib provides no guarantee that the Service will always be free of errors or interruptions. In case of an error, faults or interruptions affecting the Service the Customer shall notify Wib through: [email protected] (“Error Notice”). Upon receiving the Error Notice, Wib shall make all reasonable efforts to correct such error, according to industry best practice. For on-premise solution, the Support Services shall require remote access provided by the Customer and could be subject to additional costs.
5. BETA AND TRIAL SERVICES
Wib reserves the right to offer free trials, proof-of-concept version or a beta version of new features (“Trial Services“). Wib will be under no obligation to provide Customer any support services with respect to the Trial Services, support services may or may not be included, subject to Wib’s sole discretion. Wib makes such Trial Services available to Customer until the end of the free trial or proof of concept period or beta testing period as communicated in writing by Wib, or until a written notice of termination from Wib. Wib grants Customer, during the Trial Services period, a non-exclusive, nontransferable right to access and use the Trial Services for Customer’s internal evaluation purposes in accordance with the Documentation and subject to the access and use restrictions set forth in this Agreement. Customer is authorized to use Trial Services only for evaluation and not for any business or productive purposes, unless otherwise authorized by Wib in writing. Any data Customer enters into the Trial Services and any configurations made to the Trial Services by or for Customer during the term of such Trial Services will be permanently lost unless Customer exports such data or configurations before the end of such free period. There is no guarantee that features or functions of the Trial Services will be available, or if available will be the same, in the general release version of the Service, and Customer should review the features and functions before making a purchase. Notwithstanding anything to the contrary, Wib provides the Trial Services “as is” and “as available” without any warranties or representations of any kind. To the extent permitted by law, Wib disclaims all implied warranties and representations, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose and non-infringement. Customer assumes all risks and all costs associated with its use of the Trial Services. Customer’s sole and exclusive remedy in case of any dissatisfaction or Wib’s breach of the Agreement with respect to such Trial Services is termination of the Trial Services. Any obligations on behalf of Wib to indemnify, defend, or hold harmless under this Agreement are not applicable to Customers using Trial Services.
6. RESTRICTION OF USE
6.1. The Customer shall not, and shall not allow others, including the Authorized Users, directly or indirectly, to: (i) interfere, attempt to interfere with, compromise Platform’s and Service’s integrity or security or decipher any transmissions to or from the servers and codes running the Platform; (ii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform or Service in whole or in part; (iii) run, transfer or upload , viruses, worms, malicious code or other software agents through the use of the Service; (iv) bypass the measures Wib may use to prevent or restrict access to the Platform; (v) use the Platform and Service not in compliance with the Acceptable Use Policy.
6.2. In addition to the above, the following restrictions shall apply to Customer’s that install the Software: the Software is licensed, not sold, the Customer may not use the Software for any purpose beyond the scope of the licenses granted in this Agreement, and all other rights are reserved by Wib. Without limiting the generality of the foregoing, and without limiting the requirements under Section 6.1. above, and except as expressly permitted in this Agreement, the Customer will not and will not permit any third party to: (a) authorize or permit access to or use of the Software; (b) assign, sublicense, distribute, sell, lease, rent, novate or otherwise transfer or convey the Software, or Documentation; (c) disclose the software license key to the Software to any third party; (d) use the Software in violation of any applicable law or regulation or to support or facilitate any illegal activity (e) modify, adapt or create any derivative works of the Software (or any component thereof) or the Documentation; (f) employ or authorize a competitor of Wib to use or view the Software or Documentation; (g) perform any “mirroring” or “framing” of any part of the Software, or create internet links to the Software which include log-in information, user names, passwords, and/or secure cookies; or (h) use the Software for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication.
6.3. Failure to comply with the obligations set forth herein, may result, at Wib’s sole discretion, in the suspension of the Customer’s access to the Service, without derogating from any other remedy Wib may be entitled to under the Agreement or applicable law.
7. REPRESENTATIONS AND WARRANTIES
7.1. Each party hereby represents and warrants that: (i) it has the full legal authority to be engaged by and perform its obligations under the Agreement; and (ii) nothing contained in the Agreement nor the performance thereof shall place such party in breach or default of any obligation or other agreement, law or regulation by which it is bound or to which it is subject, or requires the consent of any person or entity.
7.2. Customer hereby represents and warrants that: (i) it will ensure that all its Authorized Users comply with the terms of the Agreement and with the appropriate security measures all subject to the Documentation, and will immediately suspend an Authorized User’s access to the Platform as soon as it becomes aware of such Authorized User’s violation of the Agreement and Documentation; (ii) it will comply with any instructions concerning the access to and use of the Platform that Wib may provide from time to time; (iii) it will use the Platform, Service and Software (as applicable) in compliance with the relevant documentation provided by Wib; (iv) the Customer shall secure the Customer Systems, including by backing up the Customer Data, taking into account the sensitivity (if applicable) of the Customer Data processed through the Platform; and (v) Customer shall configure the Services in an appropriate manner taking into account the aforesaid in section (iv) above.
7.3. Customer warrants that (i) it will not introduce into the Services any virus, worm, Trojan horse, time bomb, or other malicious or harmful code designed to affect the operation of the Cloud Services; and (ii) the use of the on-premise Software will not violate any applicable laws or regulations.
7.4. Wib hereby represents and warrants that: (i) it shall implement reasonable administrative, physical, and technical safeguards to protect the security of the Platform and Services and the Customer Data as set forth in the Security Addendum available in Annex II on the Data Processing Agreement. Wib will use industry standard measures designed to detect viruses, worms, Trojan horses or other unintended malicious or destructive code in the Services, Software and the Platform. While Customer is responsible to back up the Customer Data, Wib will, provide commercially reasonable assistance with a recovery effort; (ii) it owns or has the legal rights in the Software and Platform; and (iii) it will provide the Services in a timely and professional manner which will conform to and operate in accordance with the Documentation, the Ordering Documentation and industry standards. The foregoing warranties are void if the failure has resulted from negligence, error, or misuse of the Services or the Platform/Software (including use not in accordance with the Documentation) by Customer, the Authorized User or by anyone other than Wib staff.
7.5. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREUNDER, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES, THE PLATFORM, DELIVERABLES, FEATURES AND ANY RELATED DOCUMENTATION, SOFTWARE OR COMPONENT THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND. WIB DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, AND MAKES NO REPRESENTATION NOR IT EXTENDS ANY WARRANTY OF ANY KIND, WITH RESPECT TO THE SERVICES AND THE PLATFORM INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WIB ASSUMES NO RESPONSIBILITY OR LIABILITY FOR: (I) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE PLATFORM OR SERVICES; (II) THE OPERATION OF THE SERVICES OR SOFTWARE IN COMBINATION WITH THE CUSTOMER SYSTEM OR CLOUD SERVICE PROVIDERS, OR WITH ANY OTHER HARDWARE, SOFTWARE, OR DATA NOT PROVIDED BY WIB; (III) THE PERFORMANCE OF THE SERVICES IN A MANNER CONSISTENT WITH THE CUSTOMER REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS; (IV) ANY LOSS OF DATA OR CONTENT INCLUDING THIRD PARTY CONTENT; AND (V) THE RESULTS OF ANY USE OF THE SERVICES.
7.6. FOR ANY BREACH OF THE WARRANTIES PROVIDED BY WIB IN SECTION 7, THE CUSTOMER’S EXCLUSIVE REMEDY AND WIB’S ENTIRE LIABILITY WILL BE THE MATERIAL CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF THE ERROR CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, WIB WILL END THE DEFICIENT SERVICES AND REFUND THE CUSTOMER THE PORTION OF ANY PREPAID FEES PAID BY CUSTOMER TO WIB APPLICABLE TO THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.
7.7. Certain security features, including but not limited to, the API attack simulation and the penetration tests (“Security Features”) may cause damages or other commercial injury to Customer or other third party. Wib disclaims all warranties, either express or implied, and makes no representation nor does it extend any warranty of any kind, with respect to the Security Features, including without limitation warranties of merchantability or fitness. It is hereby clarified that Customer assumes all risks and all costs associated to its use of the Security Features, and Wib assumes no responsibility or liability for such damages.
8. PAYMENTS, FEES AND TAXES
8.1. Customized payment terms, fees and obligations are determined through the Ordering Documentation.
8.2. Unless otherwise set forth in the applicable Ordering Documentation, Customer will pay all fees under the Agreement in accordance with the following: (a) Wib Services fees are invoiced annually in advance; (b) the first invoice will coincide with the Effective Date of the Ordering Documentation; (c) payment will be due within thirty (30) days from the date of the invoice; and (d) all amounts will be denominated and payable in the currency specified in the Ordering Documentation. Any fees for the Installation Services and on-premise support services will be subject to the fees as determined in the applicable Ordering Documentation.
8.3. All payments and other amounts payable by Customer under the Agreement are exclusive of all taxes, including without limitation, sales, use, value-added, withholding or other taxes, customs, levies, or duties imposed by taxing authorities on transactions, and the Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Wib’s net income.
8.4. Late payments will accrue interest at the highest rate allowed under applicable laws but in no event more than one and one-half percent (1.5%) per month.
9. TERM, TERMINATION AND SUSPENSION
9.1. The Agreement will become effective on the Effective Date and will continue in full force and effect for the period set forth in the Ordering Documentation or otherwise until terminated by either party pursuant to this Section 9 (“Term”). The Agreement may be terminated (i) by either party on thirty (30) days’ prior written notice, solely if there are no effective Ordering Documentation (i.e., the term detailed in the applicable Order Documentation was completed); or (ii) the other party is in material breach of the Agreement and the breaching party fails to cure within 30-days following the receipt of a written notice.
9.2. Wib reserves the right to temporarily suspend any or all of the Services at any time: (i) immediately if Wib reasonably suspects that the Customer is in breach of this Agreement in a manner that may cause material harm to the Platform; (ii) or if Customer fails to pay undisputed fees after receiving notice of late payments.
9.3. Upon termination for any reason of the Agreement: (i) Customer shall cease access to or use the Platform or Software , the Services and delete the Account, [and uninstall the Software from its on-premise Systems]; (ii) each party will promptly return to the other party all Confidential Information of the other party in its possession or control, except as otherwise agreed by the parties or as required by applicable laws; and (iii) termination for any reason of the Agreement shall not derogate from rights and obligations accrued prior to the effective date of expiration or termination, and shall not relieve the Customer from its obligation to pay the applicable consideration that remains unpaid or limit either party from pursuing other available remedies.
9.4. The Customer acknowledges that it is responsible for exporting any Customer Data to which the Customer desires continued access after termination or expiration, and Wib shall have no liability for any failure of Customer to retrieve such Customer Data and no obligation to store or retain any such Customer Data beyond 60 days following termination or expiration of the Agreement, as applicable. Any Customer Data contained on the Platform will be deleted within 60 days of termination or expiration of the Agreement, as applicable.
9.5. All sections detailed herein which by their nature are intended to survive termination shall survive termination or expiration for any reason.
10. INTELLECTUAL PROPERTY
10.1. The Intellectual Property and all other rights, title and interest of any nature in and to the Platform, Software and the Services or any related documentation made available by or on behalf of Wib hereunder (including all Suggestions, modifications, enhancements, upgrades, customizations and derivative works thereof, but excluding the Customer Data and the deliverables) (“Wib’s Intellectual Property”) are and shall remain the exclusive property of Wib or its licensors. Except as expressly permitted in the Agreement, the Customer has no right in and to the Wib’s Intellectual Property and shall not use, adopt, modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance, exploit any of the Wib’s Intellectual Property or register any trade names or symbols that are identical, or confusingly similar, to any such trademarks or trade names used by Wib. The provisions of this section shall remain in full force and effect after termination or expiration of the Agreement for whatever reason. Nothing in this Agreement shall be construed as transferring any right, title, or interest to the Customer or any third party unless explicitly stated hereunder. Wib and its licensors reserve any and all rights not expressly granted in the Agreement. The provisions of this section shall remain in full force and effect after termination or expiration of the Agreement for whatever reason.
10.2. Notwithstanding the above, the Platform and Software may include Third-Party Materials, use of which is subject to their respective licenses. Wib warrants that the inclusion of such Third-Party Materials will not prevent Customer from exercising the license rights provided to Customer herein or limit Customer’s ability to use the Services in accordance with the Documentation.
10.3. Each of the Customer and Wib hereby acknowledges and agrees that all of Wib’s work generated in connection with the Services and Ordering Documentation, including but not limited to codes, ideas, algorithms, copyrights, trademarks, design patents, trade secret rights, moral rights, all contract and licensing rights, all other intellectual property, and all claims and causes of action with respect to any of the foregoing, whether now known or hereafter to become know, arising from the Services and Software, (collectively, “Work”), shall belong to Wib shall not be considered as a “work for hire”.
10.4. If the Customer chooses to provide Wib with suggested improvement, feedback, commentary, ideas, concept or other statements concerning the Service or Trial Service (“Suggestions“) the Customer hereby grant Wib a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable, assignable license to incorporate into the Services or otherwise use any Suggestions Wib receives from Customer solely to improve the Services, provided that such Suggestions are used in a manner that is not attributable to the Customer. The Customer also irrevocably waive in favor of Wib any moral rights which the Customer may have in such Suggestions pursuant to applicable copyright law. Wib acknowledges that any Suggestion is provided on an “as-is” basis with no warranties of any kind.
11.1. Except as set for the herein, and to the extent required under applicable law, the Receiving Party agrees to keep confidential and not disclose, use, copy, or distribute any Confidential Information to anyone, other than to those of its employees and contractors, if and to the extent that such employees and contractors have a need to know such Confidential Information for the purpose of the Receiving Party’s performance of the Agreement, and provided that such employees and contractors are bound to abide by all the obligations concerning such Confidential Information contained in the Agreement. The obligations outlined in this Section 11 shall survive the termination or expiration of the Agreement for a period of 3 years following the termination. All Confidential Information shall be and remain the property of the Disclosing Party. The disclosure of the Confidential Information shall not be construed as granting the Receiving Party any right, title, or license, whether expressly disclosed or implied, with respect to the Confidential Information or to its related Intellectual Property.
11.2. Each party acknowledges that its breach of this Section 11 may cause the other party extensive and irreparable harm and damage, and agrees that the other party shall be entitled to seek injunctive relief, without posting a bond, to prevent use or disclosure of its Confidential Information not authorized by this Agreement, in addition to any other remedy available to the other party under applicable law.
12. DATA PROTECTION
12.1. Wib does not monitor the Customer Data and has no knowledge or ability to know which data is available through the Customer Data. Therefore, the Customer shall be solely responsible to inform Wib in the event the Customer Data includes personal data, health data, or other data that requires additional agreements and safeguards. It is hereby clarified that Wib disclaim any and all responsibility for Customer Data accuracy or completeness, and the Customer shall bear full responsibility and liability for Customer Data.
12.2. In the even Customer Data included Personal Data, the DPA shall apply.
12.3. In the event the Customer Data includes health data protected by HIPAA the Customer shall ensure the parties execute a BAA.
12.5. Wib does not provide an archiving or hosting service; Wib expressly disclaims all other obligations with respect to storage of Customer Data. Customer shall be responsible to back up the Customer Data at all times.
13.1. Wib shall defend and indemnify Customer or its Affiliates and their officers, directors and employees against all third-party claims, suits and proceedings resulting from the violation, misappropriation, or infringement of such third party’s patent, copyright, trademark or trade secret caused by Customer’s use of the Platform or Services in accordance with this Agreement and the Documentation, and all directly related losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees). The above obligations to defend and indemnify will not apply in the event that a claim arises from or relates to: (i) use of the Service, Software or the Platform not in accordance with the Documentation and this Agreement; (ii) Customer’s use of the Service or the Platform in violation of applicable laws; (iii) any combination or use of the Service or the Platform with any computer, hardware, software, data or service not required by the Documentation; or (iv) Customer’s gross negligence or willful misconduct.
13.2. Customer shall defend and indemnify Wib or its Affiliates and their officers, directors and employees against any third-party claims, suits and proceedings (including those brought by a government entity), and all directly related losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) resulting from: (i) an alleged infringement or violation by the Customer Data of such third-party’s Intellectual Property right, or any other third party right; (ii) the use of the Customer Data violating applicable law or the DPA; (iii) gross negligence, willful misconduct or fraud; or (iv) misuse of the Services or as a result of Customer’s breach of the Agreement and the Documentation.
13.3. The obligations under this Section will only apply if the indemnified party: (i) promptly notifies the other party (“Indemnifying Party”), in writing, regarding the claim; (ii) permits the Indemnifying Party to control the defense and settlement of the claim; and (iii) reasonably cooperates with the Indemnifying Party (at the Indemnifying Party’s expense) in the defense and settlement of the claim. Notwithstanding the above, in no event will Indemnifying Party agree to any settlement of any claim that involves any negative commitment of the Indemnified Party, without its consent.
14. LIMITATION OF LIABILITY
14.1. This Agreement is not intended to and will not be construed as excluding or limiting any liability which cannot be limited or excluded by applicable law, including liability for (a) death or bodily injury caused by a party’s negligence; or (b) gross negligence, willful misconduct, or fraud.
14.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL HAVE ANY LIABILITY FOR: (A) INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL LOSS OR DAMAGES; (B) LOST PROFITS OR REVENUE; (C) LOSS OF GOODWILL; (D) LOSS OF DATA; OR (E) LOSS ARISING FROM INACCURATE OR UNEXPECTED RESULTS ARISING FROM THE USE OF THE SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING.
14.3. EXCEPT WITH RESPECT TO LIABILITY ARISING OUT OF: (I) WIB’S INDEMNIFICATION OBLIGATIONS FOR AN INTELLECTUAL INFRINGEMENT CLAIM; (II) CONFIDENTIALITY OBLIGATIONS; OR (III) CUSTOMER’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THE AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE (“GENERAL CAP”). THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE PAYMENT SECTION.
14.4. NOTWITHSTANDING THE ABOVE, IN SECTION 14.4, WIB’S AGGREGATE LIABILITY FOR ANY CLAIMS OR DAMAGES, ARISING OUT OF OR IN CONNECTION WITH WIB’S BREACH OF THE DATA PROTECTION AND SECURITY OBLIGATIONS SET FORTH IN THIS AGREEMENT AND THE DPA, WHERE SUCH BREACH RESULTS IN UNAUTHORIZED DISCLOSURE OF CUSTOMER DATA, SHALL BE LIMITED TO TWO (2) TIMES THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE (“SUPERCAP”).
14.5. NOTWITHSTANDING ANYTHING CONTAINED ABOVE, WIB SHALL HAVE NO LIABILITY RELATING TO TRIAL SERVICES OR ANY SERVICES PROVIDED FREE OF CHARGE.
15.1. Wib reserves the right to modify, correct, or amend the terms of the Agreement at any time in its sole discretion, Wib will provide the Customer with prior notice before such changes. The most current version of this MSA will be reflected under the “Last Updated” date that appears in the header of this Agreement.
15.2. Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (a) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (b) Customer will not (and will not permit any third parties to) access or use the Software or Service in violation of any U.S. export embargo, prohibition or restriction, and (c) Customer will not submit to the Software or Service any information that is controlled under the U.S. International Traffic in Arms Regulations.
15.3. This Agreement and any claim, controversy, or dispute arising under, related to, or otherwise in connection with this Agreement shall be interpreted, construed, and enforced in accordance with the laws of Israel, applied without giving effect to any conflicts of law principles. The Parties agree that any lawsuit that may be brought with respect to this Agreement shall be brought and tried exclusively in the competent courts located within Tel Aviv, Israel.
15.4. Each party is an independent contractor and as such will not have any authority to bind or commit the other. Nothing herein shall be deemed or construed to create a joint venture, fiduciary or agency relationship between the parties for any purpose.
15.5. The Agreement and the rights and obligations therein may not be assigned or transferred by either party without the prior written consent of the other party. However, Wib may assign the Agreement at any time by providing the Customer a written notice in connection with a merger, acquisition or sale of all or substantially all of its business or assets or to any affiliate or as part of a corporate reorganization.
15.6. All notices, requests, demands, waivers and other communications required or permitted hereunder must be in writing and shall be deemed to have been duly given (i) immediately if provided by electronic mail to [email protected] or to the Customer e-mail address as record in the Account or Ordering Documentation; or (ii) one day after delivery by receipted mail delivery. All correspondence, notices and technical documentation exchanged between the parties shall be provided in the English language only.
15.7. Wib shall not be liable for any delay or failure to perform its obligations according to the Agreement if and to the extent that such delay or failure to perform is caused or otherwise brought about by circumstances beyond Wib’s reasonable control, including strikes, lockouts, labor troubles, restrictive government or judicial orders or decrees, riots, insurrection, war, terrorism, Acts of God or inclement weather, which Wib is unable to prevent.
15.8. Should any or all of the provisions of the Agreement be determined to be invalid, unlawful, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired by such determination and will remain in full force and effect, and the provision affected will be construed to be enforceable to the maximum extent permissible by law.
15.9. A delay or omission by Wib to exercise any right under the Agreement shall not be construed to be a waiver of such right. All waivers by Wib must be in writing to be effective.
15.10. This Agreement constitute the entire agreement of the parties hereto with respect to the subject matter hereof and thereof, and supersede all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof.
15.11. In case of any conflict between the provisions of this Agreement and the provisions of an Ordering Documentation, the provisions of the Ordering Documentation shall prevail as to the subject matter of such conflict, unless specifically stated otherwise in the Agreement.