Perception Point Free End User License Agreement
BY SIGNING THIS AGREEMENT, OR CLICKING “I AGREE”, “ACCEPT” OR OTHER SIMILAR BUTTON, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU, ON BEHALF OF YOURSELF OR YOUR ORGANIZATION, (“YOU” OR “CUSTOMER” OR “LICENSEE”) ARE ENTERING INTO A LEGAL AGREEMENT WITH PERCEPTION POINT LTD. OR PERCEPTION POINT INC, (AS MAY BE APPLICABLE, “PERCEPTION POINT” or “COMPANY”) (YOU AND COMPANY EACH, A “PARTY” AND COLLECTIVELY, THE “PARTIES”), AND HAVE UNDERSTOOD AND AGREE TO COMPLY WITH, AND BE LEGALLY BOUND BY, THE TERMS AND CONDITIONS OF THIS AGREEMENT (THE DATE OF SUCH OCCURRENCE BEING THE “EFFECTIVE DATE”). TO THE EXTENT THAT YOU AGREE TO THIS AGREEMENT BY CLICKING “I AGREE”, “ACCEPT” OR OTHER SIMILAR BUTTON, YOU HEREBY WAIVE ANY APPLICABLE RIGHTS TO REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NONELECTRONIC RECORDS, TO THE EXTENT NOT PROHIBITED UNDER APPLICABLE LAW.
If you have purchased the license granted hereunder from a partner, reseller or distributor authorized by the Company (“Partner”), to the extent there is any conflict between this Agreement and the agreement entered between you and the respective Partner, including any purchase order (“Partner Order Form”), then, as between you and Company, this Agreement shall prevail. Any rights granted to you in such Partner Order Form which are not contained in this Agreement, apply only in connection with such Partner. In that case, you must seek redress or realization or enforcement of such rights solely with such Partner and not the Company.
- License. Subject to and in accordance with all the terms and conditions of this Agreement, Perception Point hereby grants to Customer a limited, worldwide, non-assignable, non-exclusive, nontransferable, non-sublicensable right to use the Solution internally solely for Customer’s use, during the Term (as defined below) (the “License”). Perception Point may limit the number of Permitted Users (as defined below) at its sole discretion. The Solution will be deemed activated when Customer’s Account (as defined below) is provisioned to the Customer.
- Limitations on Use. Customer shall not and shall not allow any User or any third party to, directly or indirectly: (i) take any action to contest Perception Point’s Intellectual Property Rights or infringe them in any way including , but not limitted to removi orng altering any trademarks or other proprietary notices related to the Solution; (ii) access or use the Solution through any unauthorized means, services or tools, including, without limitation, any data mining, robots, or similar automated means or data gathering and extraction tools, including, without limitation, in order to extract for re-utilization of any parts of the Solution; (iii) penetrate or circumvent or attempt to penetrate or circumvent any technical restrictions or limitations included in the Solution or its servers; or (iv) use or register any trademarks, trade names, domain names or symbols similar to Perception Point’s registered trademarks and logos (v) copy, modify, create derivative works of or distribute any part of the Solution; (vi) sell, license (or sub-license), lease, assign, transfer, pledge, or share Customer’s rights under this Agreement with any third party; (vii) use any “open source” or “copyleft software” in a manner that would require the Company to disclose the source code of the Solution to any third party; (viii) disclose the results of any testing or benchmarking of the Solution to any third party; (ix) disassemble, decompile, reverse engineer or attempt to discover the Solution’s source code or underlying algorithms; (x) use the Solution in a manner that violates or infringes any rights of any third party, including but not limited to, privacy rights, publicity rights or intellectual property rights;; (xi) export, make available or use the Solution in any manner prohibited by applicable laws (including without limitation export control laws); (xii) 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 cmputer system or any component of such computer system) or other unlawful material in connection with the Solution; and/or (xiii) take any action that imposes an unreasonable or disproportionately large load on Company’s infrastructure
- Customer Account. The Solution may only be used through a Customer account (the “Account”). Such Account may be accessed solely by those explicitly authorized by Customer to access and use the Solution (each, a “Permitted User”). Customer will, or otherwise will ensure that the Permitted Users keep the Account login details secure at all times and comply with the terms of this Agreement; and will be fully responsible for any breach of this Agreement by a Permitted User. Unauthorized access or use of the Account or the Solution must be immediately reported to the Company.
- Undertakings. Each Party undertakes to comply with all applicable laws and regulations (including with limitation the applicable data privacy laws and regulations), including any registration requirements, and obtain all applicable licenses, permits, authorizations, approvals, and consents (including without limitation from a Party’s employees) required under any applicable laws for Perception Point to provide and for Customer to use the Solution in accordance therewith.
- Warranties and Representations.
Each Party warrants and represents to the other Party that it has the full corporate power and authority required to enter into this Agreement and to carry out its undertakings and obligations hereunder.
CUSTOMER WARRANTS AND REPRESENTS THAT IT OWNS OR HAS OBTAINED THE NECESSARY RIGHTS, PERMISSIONS AND/OR WAIVERS, TO INSTALL AND/OR USE THE SOLUTION ON DEVICES ON WHICH THE SOLUTION IS OR WILL BE INSTALLED AND IN ORDER TO MONITOR AND INSPECT OF THE DEVICES. LICENSEE IS RESPONSIBLE FOR PROVIDING A VALID AND UPDATED WINDOWS LICENSE FOR EACH WINDOWS DEVICE USING THE SOLUTION. LICENSEE SHALL COMPLY WITH ALL LAWS, RULES AND REGULATIONS APPLICABLE TO THE PERFORMANCE OF THE CONTEMPLATED ACTIVITIES PURSUANT TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION: (A) ANY APPLICABLE ANTI-CORRUPTION AND NON-BRIBERY LAWS AND REGULATIONS, AND (B) ANY APPLICABLE EXPORT CONTROL LAWS. “DEVICE” MEANS ANY COMMUNICATING DEVICE (E.G., DESKTOP, MOBILE OR OTHER COMPUTERS, SERVERS, CELLULAR PHONES, TABLETS, ETC.).
- Service Levels and Support. During the Term, Perception Point shall provide Customer with support services and service levels in accordance with its Service Level and Support Policy.
Perception Point or its licensors (as applicable) owns all right, title, and interest in and /or related to the Solution, including without limitation any and all data, computer code, user interface, design and structure, and all modifications, enhancements derivatives and improvements thereof regardless of whether the improvements, updates, upgrades, modifications and/or additional parts were made and/or developed pursuant to the request and/or specifications of the Customers or Customers’ assistance and as well as all Intellectual Property Rights related thereto (“Perception Point IPR”).
If Company receives any feedback (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 Company and that such shall be considered Company’s Confidential Information and Licensee hereby irrevocably and unconditionally transfers and assigns to Company all intellectual property rights it has in such Feedback and waives any and all moral rights that Licensee may have in respect thereto. It is further understood that use of Feedback, if any, may be made by Company at its sole discretion and that Company in no way shall be obliged to make use of any kind of the Feedback or part thereof.
Customer acknowledges that, except for the limited License to the Solution set forth in Section 2 above, Customer did not and shall not acquire any rights in any part of the Perception Point IPR. Without prejudice to the terms herein, Customer owns all data which it provides or which Perception Point receives from Customer which is processed by or through the Solution, including, but not limited to all traffic sent or received by Customer, backup files, and other electronic files processed by the Solution as part of the services provided by Perception Point (“Customer Data”).
Customer shall have sole responsibility for the reliability, integrity, accuracy and quality of the Customer Data. Customer hereby grants Company a royalty-free, fully-paid, irrevocable, non-exclusive license to use, process, display, copy and store the Customer Data in order to (i) provide the Solution and its related services to Customer; and (ii) administer and make improvements to the Solution. Customer acknowledges that the Solution does not operate as an archive or file storage service. Customer is solely responsible for the backup of Customer Data and Customer alone can implement back up plans and safeguards appropriate for its requirements.
To the extent that the provision of the Customer Data requires under the applicable law a data processing agreement (“DPA”), Customer hereby accepts and agrees to the terms of the DPA available at: https://perception-point.io/data-protection-agreement/ as may be updated from time to time. Customer shall, as and to the extent required by law, ensure that all users to whom it provides access to the Solution, all required consent in accordance with the applicable laws to the provision to and processing by Perception Point of their data as set forth herein.
Notwithstanding the foregoing, any anonymous information which is derived from the use of the Solution (i.e., metadata, aggregated and/or analytics information) which is not personally identifiable information (“Analytics Information”) may be used for providing the Service, for research and development, and/or for statistical purposes. Such Analytics Information shall be the Company’s exclusive property.
Third Party Components. The Solution may include (i) certain open source code software and materials (“Open Source Software”) that are distributed to Licensee which and which are subject to their respective open source licenses (“Open Source Licenses”) (ii) certain third party’s software which are not subject to Open Source Licenses (“Third Party Software”). Where applicable, the list of such Open Source Software and their respective Open Source Licenses are available within the Solution’s notice file (“Notice File”), as may be amended from time to time by Company, at its sole discretion. The Notice File may be further provided to Licensee upon request. Such Notice File may also include certain notices and/or a list of conditions with regard to certain Third Party Software (“Third Party Terms”). In the event of any inconsistencies or conflicting provisions between the provisions of the Open Source Licenses and the provisions of this Agreement, the provisions of the Open Source Licenses shall prevail only with regard to such Open Source Software. In the event of any inconsistencies or conflicting provisions between the provisions of Third Party Terms and the provisions of this Agreement, the provisions of the Third Party Terms shall prevail.
The free trial is free of charge (“Trial Period”). Email scanning is not capped at a certain number of scans; The scanning for other cloud collaboration channels provided that scanning will be stopped after one (1) malicious file detection per month or a maximum of five hundred (500) file scans per day. The license granted hereunder is currently for free, however, Company may in the future charge a fee for certain features and/or uses. You will not be charged for any such uses of the Solution unless you first agree to such charges, but please be aware that any failure to pay applicable charges may result in you not having access to some or all of the Solution.
Except as expressly provided in this Agreement, each party shall bear its own expenses incurred in the course of its performance of this Agreement.
Confidential Information and Privacy.
All data and information related to each Party, its affiliates and its shareholders, employees, directors and agents, and/or to its business, products and services are confidential information of the disclosing Party (“Confidential Information”). Except for Customer Data, which shall remain confidential at all times, “Confidential Information” does not include information: (i) that is or becomes part of the public domain through no act or omission of the receiving Party; (ii) that is lawfully received by the receiving Party from a third party without restriction and without breach of this Agreement or any other agreement, or (iii) that the receiving Party lawfully had in its possession prior to the date of this Agreement. The receiving Party agrees to protect the Confidential Information at least as protective as those taken to protect its own confidential information, but in no event less than in accordance with good industry practices. The receiving Party shall keep confidential and not disclose, disseminate, allow access to or use any Confidential Information except as required for exercising its rights or fulfilling its obligations herein. Either Party shall restrict disclosure of Confidential Information to those of its employees and consultants (“Representatives”) with a reasonable need to know such information and which are bound by written confidentiality obligations no less restrictive than those set out herein and provided that the receiving Patry be liable for any breach of confidentiality of its Representatives. Without derogating from the foregoing, either Party may disclose this Agreement in connection with a merger, sale or issuance of all or substantially all of the shares or assets of such Party. The receiving Party will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order or a court of similar judicial or administrative body, provided that it notifies the disclosing Party of such required disclosure to enable disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party.
Indemnification; Limitation of Liability.
Perception Point shall indemnify and hold Customer and its Affiliates and their respective stockholders, directors and officers, harmless against any and all claims, damages, losses, expenses and costs, finally awarded in judgment or settlement and arising out of a third party allegation that the Solution infringes its intellectual property rights. Perception Point’s indemnification obligation shall be subject to provision of prompt written notice of the claim to Perception Point, rendering full control over the defense and settlement of the claim to Perception Point and that Customer shall provide reasonable assistance in the defense to Perception Point.
UNDER NO CIRCUMSTANCES WILL PERCEPTION POINT AND ITS AFFILIATES, AND ITS AND THEIR SHAREHOLDERS, DIRECTORS, AGENTS, EMPLOYEES, LICENSORS OR SUPPLIERS BE LIABLE UNDER ANY CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT AND/OR THE SOLUTION EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS;
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR UNDER THE APPLICABLE LAW, DURING THE TRIAL PERIOD THE SOLUTION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY WHATSOEVER OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND COMPANY MAKES NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS OR LIABILITIES WITH RESPECT TO THE TRIAL PERIOD. PERCEPTION POINT, ITS SUPPLIERS AND ITS LICENSORS MAKE NO WARRANTY THAT USE OF THE SOLUTION OR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR DEFECT-FREE, AVAILABLE AT ALL TIMES, OR COMPATIBLE WITH THE END USER’S ENVIRONMENT OR SOFTWARE CONFIGURATIONS; OR THAT ERRORS/BUGS ARE REPRODUCIBLE OR THAT ERRORS/BUGS ARE REPAIRABLE; OR WITH RESPECT TO THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON COMPANY’S WEBSITE. COMPANY HEREBY SPECIFICALLY DISCLAIMS, ON BEHALF OF ITSELF AND ITS SUPPLIERS, AND LICENSORS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. FOR GREATER CLARITY, COMPANY SHALL NOT BE LIABLE FOR HEREUNDER FOR ANY DAMAGES INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL OR EXEMPLARY DAMAGES OR LOSSES WHATSOEVER; NOR FOR DAMAGES OR LOSSES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, OR DAMAGES ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOLUTION. In the event of any inconsistencies between the terms of this Section 12.3 and other provisions of this Agreement, the terms specified in this Section 12.3 shall prevail with respect to the Trial Period
Term and Termination.
Unless earlier terminated pursuant to Section 13.2 below, the term of the Agreement shall be for three (3) months, starting from the date the solution is activated or a different period as may be determined by Perception Point (the “Term“).
Perception Point may terminate this Agreement for convenience upon a fourteen (14) days written notice. Either Party may terminate this Agreement in accordance with the following terms: (i) upon breach by the other Party of any of its obligations herein and the breaching Party’s failure to cure the breach within fourteen (14) days, or, in the event of a materials breach, failure to cure the breach within seven (7) days, of written notice from the other Party, to the extent any such breach is curable; (ii) by delivering written notice to the other Party upon the occurrence of any of the following events: (a) a receiver is appointed for either Party or its property; (b) either Party makes a general assignment for the benefit of its creditors; (c) either Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within thirty (30) days; or (d) either Party is liquidated or dissolved or has undertaken any measures to commence such liquidation or dissolution.
Upon expiration or termination of this Agreement for any reason: (i) all of Customer’s rights and licenses hereunder shall immediately terminate and Customer shall immediately cease using the Solution; (ii) the receiving Party shall promptly erase/delete or return to the disclosing Party (at the disclosing Party’s election), all of disclosing Party’s confidential information, held or controlled by the receiving Party, in any form or media, and, with respect to Perception Point, Perception Point IPR held or controlled by Customer. The following Sections shall survive termination/expiration hereof: 2, 4, 5, 7-9, 11, 12, 13.3, 14-15, and any outstanding payment obligations accrued (in accordance with the terms of this Agreement) prior to expiration or termination hereof.
Waiver;. Failure of a Party to insist upon the performance by the other Party of any term hereof shall not be deemed a waiver of the rights of the first-mentioned Party with respect thereto. All waivers must be in writing.
Notices. All notices and other communications required or desired to be `communicated by one Party to the other shall be in writing and shall be deemed delivered immediately when sent by fax or e-mail (with automatic confirmation of receipt), or delivered by hand or ten (10) days after mailing by registered mail to the respective addresses set forth at the head of the Agreement. Provided, however, that any notice of change of address shall be effective only upon receipt.
Assignment. Customer shall not assign or transfer any of its rights or obligations hereunder, whether by contract or by operation of law. Perception Point may assign and transfer any rights and obligations under this Agreement at its sole discretion, provided that Perception Point shall notify Customer of such assignment and that such assignment shall not derogate from any of Customer’s rights hereunder.
Relationship of the Parties. The relationship established between Perception Point and Customer by this Agreement is solely that of independent contractors. Customer is not the agent or legal representative of Perception Point nor is Perception Point the agent or legal representative of Customer, and no employee of Customer shall be considered to be an employee of Perception Point for any purposes whatsoever and no employee of Perception Point shall be considered to be an employee of Customer for any purposes whatsoever. Except as set forth under this Agreement, neither Party shall be liable for any expenses incurred by the other Party which arise out of or in connection with the Agreement.
Entire Agreement; Modification. This Agreement, including the Exhibits hereto, sets forth the entire agreement and understanding between the parties hereto with respect to the subject matter hereof, and supersedes all prior discussions, agreements, representations and understandings between them. This Agreement shall not be modified except by a written instrument signed by both parties.
Governing Law and Jurisdiction. This Agreement and any action related thereto shall be governed, controlled, interpreted and defined by and under the laws of the State of Israel/ without regard to the conflict of law provisions thereof. The exclusive jurisdiction and venue of any action with respect to the subject matter of this Agreement shall be the competent courts of Tel-Aviv, Israel and each of the parties hereto submits itself to the exclusive jurisdiction and venue of such courts for the purpose of any such action. The United Nations Convention for the International Sale of Goods is expressly excluded from this Agreement.
Remedies. Notwithstanding Section 14.6 Without prejudice to section 12.3 above, each Party acknowledges that in the event of a breach or threatened breach of any provision of this Agreement by the other Party, such Party could suffer significant and irreparable harm that could not be satisfactorily compensated in monetary terms, and that the remedies at law available to such Party may otherwise be inadequate and such Party shall be entitled, in addition to any other remedies to which it may be entitled to under law or in equity, to the immediate ex parte issuance of equitable relief, including without limitation injunctive relief, in any jurisdiction worldwide.
Severability. Any provision of this Agreement prohibited by, or unenforceable under, the applicable law shall be ineffective and shall be replaced by an enforceable provision to the same or the nearest possible equivalent effect. Notwithstanding the foregoing, the other provisions hereof shall continue in effect.
Force Majeure. Neither Party shall be liable to the other for delays or failures in performance resulting from unforeseeable causes and which are beyond the reasonable control of that Party, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, or riots.
No Third Party Beneficiaries. No provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity other than Customer (and its employees) and Perception Point any rights, remedies or other benefits under or by reason of this Agreement.
Definitions. For purposes of this Agreement and all Exhibits thereto, the following capitalized terms shall have the following meaning:
“Intellectual Property Rights” means all worldwide, whether registered or not (a) patents, patent applications, and patent rights; (b) rights associated with works of authorship, including copyrights, copyright applications, copyright restrictions, mask work rights, mask work applications and mask work registrations; (c) trademarks, trade names, service marks, logos, domain names, goodwill, and trade dress; (d) trade secrets and confidential information; (e) rights analogous to those set forth herein and any other proprietary rights relating to intangible property; and (f) divisions, continuations, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.
“Solution” means any of Perception Point’s Advanced Collaboration and Communication Cyber Security solutions, including maintenance and support services, and all updates and upgrades, from time to time, that are generally made available by Perception Point for all of its Customers.
“Affiliate” means, with respect to a Party, a person or entity that controls, is controlled by or is under common control with, such Party.
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