Terms of Service
Terms of Service
REACHWARE, INC. TERMS OF SERVICE
Effective as of Mar 3, 2023
REACHWARE SOFTWARE LTD. AND/OR ITS AFFILIATES (“REACHWARE”) IS WILLING TO GRANT ACCESS TO THE SAAS PRODUCTS TO YOU AS THE COMPANY OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE SAAS PRODUCTS (REFERENCED BELOW AS “CUSTOMER”) ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT (AS DEFINED BELOW). BY ENTERING INTO THIS AGREEMENT ON BEHALF OF THE CUSTOMER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT. CUSTOMER AND REACHWARE MAY EACH ALSO BE REFERRED TO AS A “PARTY” AND TOGETHER, THE “PARTIES”.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SAAS PRODUCTS. THIS SAAS TERMS OF SERVICE (“AGREEMENT”) CONSTITUTES A LEGAL AND ENFORCEABLE CONTRACT BETWEEN THE CUSTOMER AND REACHWARE. BY INDICATING CONSENT ELECTRONICALLY, OR ACCESSING OR OTHERWISE USING THE SAAS PRODUCTS, THE CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF THE CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, DO NOT INDICATE CONSENT ELECTRONICALLY AND MAKE NO FURTHER USE OF THE SAAS PRODUCTS.
1. Access and Use
1.1. Access and Use.
Subject to payment of all applicable fees set forth in the Order or payment in accordance with an Indirect Order through a Channel Partner (as appropriate) and the terms and conditions of this Agreement, REACHWARE grants Customer, during the Subscription Term, a non-exclusive, non-transferable right to access and use (and permit Authorized Users to access and use) the SaaS Products and applicable Documentation solely for Customer’s and its Affiliates’ internal business purposes in accordance with the Documentation and in the quantity specified in the applicable Order. REACHWARE may update the SaaS Products from time to time in its sole discretion but shall not remove a primary function of the SaaS Products without providing prior notice to Customer.
1.2. Access and Use Restrictions.
Customer shall not (directly or indirectly): (a) copy or reproduce the SaaS Products or the Documentation except as permitted under this Agreement; (b) exceed the subscribed quantities, users or other entitlement measures of the SaaS Products as set forth in the applicable Order; (c) remove or destroy any copyright, trademark or other proprietary marking or legends placed on or contained in the SaaS Products, Documentation or REACHWARE Intellectual Property; (d) assign, sell, resell, sublicense, rent, lease, time-share, distribute or otherwise transfer the rights granted to Customer under this Agreement to any third party except as expressly set forth herein; (e) modify, reverse engineer or disassemble the SaaS Products; (f) except to the limited extent applicable laws specifically prohibit such restriction, decompile, attempt to derive the source code or underlying ideas or algorithms of any part of the SaaS Products, attempt to recreate the SaaS Products or use the SaaS Products for any competitive or benchmark purposes; (g) create, translate or otherwise prepare derivative works based upon the SaaS Products, Documentation or REACHWARE Intellectual Property; (h) interfere with or disrupt the integrity or performance of the SaaS Products; (i) attempt to gain unauthorized access to the SaaS Products or its related systems or networks, or perform unauthorized penetrating testing on the SaaS Products; (j) use the SaaS Products in a manner that infringes on the Intellectual Property rights, publicity rights, or privacy rights of any third party, or to store or transfer defamatory, trade libelous or otherwise unlawful data; or (k) except as otherwise agreed by the Parties in the applicable BAA, store in or process with the SaaS Products any personal health data, credit card data, personal financial data or other such sensitive regulated data not required by the Documentation, or any Customer Data that is subject to the International Traffic in Arms Regulations maintained by the United States Department of State. Fees for the SaaS Products are based on the use of the SaaS Products in a manner consistent with the Documentation. If Customer uses the SaaS products in a manner that is outside or in violation of the Documentation, then Customer will cooperate with REACHWARE to address any applicable burden on the SaaS Products or pay an additional mutually agreed upon fee.
1.3. Login Access to the SaaS Products.
The customer is solely responsible for ensuring: (i) that only appropriate Authorized Users have access to the SaaS Products, (ii) that such Authorized Users have been trained in the proper use of the SaaS Products, and (iii) proper usage of passwords, tokens, and access procedures with respect to logging into the SaaS Products. REACHWARE reserves the right to refuse registration of, or to cancel, login IDs that it reasonably believes to violate the terms and conditions set forth in this Agreement, in which case REACHWARE will promptly inform Customer in writing of such refusal or cancellation. In addition to the rights set forth in this Agreement, REACHWARE may suspend Customer's access and use of the SaaS Products if there is an unusual and material spike or increase in Customer’s use of the SaaS Products and REACHWARE reasonably suspects or knows that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the SaaS Products. REACHWARE will provide notice prior to such suspension if permitted by applicable law or unless REACHWARE reasonably believes that providing such notice poses a risk to the security of the SaaS Products. REACHWARE will promptly reinstate the Customer’s access and use once the issue has been resolved.
1.4. Trial Services.
If Customer is using a free trial, a proof of concept version of the SaaS Products, a beta version of the SaaS Products, or using the SaaS Products on any other free-of-charge basis as specified in an Order including any related support services to the extent provided by REACHWARE in its sole discretion (collectively, “Trial Services”), REACHWARE makes such Trial Services available to Customer until the earlier of (i) the end of the free trial or proof of concept period or beta testing period as communicated by REACHWARE or specified in an Order; (ii) the start date of any purchased version of such SaaS Products; or (iii) written notice of termination from REACHWARE (“Trial Services Period”). REACHWARE grants Customer, during the Trial Services Period, a non-exclusive, non-transferable 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. The customer is authorized to use Trial Services only for evaluation and not for any business or productive purposes unless otherwise authorized by REACHWARE 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: (a) has purchased a subscription to the same SaaS Products as covered by the Trial Services; or (b) exports such data or configurations before the end of the 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 SaaS Products, and the Customer should review the SaaS Products features and functions before making a purchase. REACHWARE will be under no obligation to provide the Customer with any support services with respect to the Trial Services. Notwithstanding anything to the contrary, REACHWARE provides the Trial Services “as is” and “as available” without any warranties or representations of any kind. To the extent permitted by law, REACHWARE disclaims all implied warranties and representations, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, and non-infringement. The customer assumes all risks and all costs associated with its use of the Trial Services. The customer’s sole and exclusive remedy in case of any dissatisfaction or REACHWARE’s breach of the Agreement with respect to such Trial Services is the termination of the Trial Services. Any obligations on behalf of REACHWARE to indemnify, defend, or hold harmless under this Agreement are not applicable to Customers using Trial Services
1.5. Third-Party Materials.
The SaaS Products include Third-Party Materials, the use of which is subject to their respective OSS Licenses as indicated in the Documentation. REACHWARE warrants that the inclusion of such Third-Party Materials in the SaaS Products will not prevent Customer from exercising the license rights provided to Customer herein in respect of the SaaS Products or limit Customer’s ability to use the SaaS Products in accordance with the Documentation. Nothing herein shall derogate from mandatory rights Customer may have under any OSS Licenses, if any. Customers may obtain a copy of the source code for certain Third-Party Materials by following the instructions set forth in the Documentation.
1.7. Support.
As part of its provision of the SaaS Products, REACHWARE shall make available technical support to the Customer in accordance with the Support Services terms applicable to the SaaS Products. Upon notification from REACHWARE, Customer shall promptly update any Agents on Customer systems that interact with the SaaS Products. Customer acknowledges and agrees that its failure to timely install such an update in may result in disruptions to or failures of the SaaS Products, security risks, or suspension of Customer’s access to the SaaS Products, without any liability on the part of REACHWARE to Customer. As used herein, “Agents” means REACHWARE’s proprietary software, systems, and locally installed software agents and connectors that interact with the SaaS Products as may be provided by REACHWARE in connection with the SaaS Products.
1.8. Mobile Applications.
With regard to SaaS Products that require the use of mobile applications by an Authorized User, the Customer shall ensure that all Authorized Users promptly download and install all available updates for the mobile applications. Customer further acknowledges and agrees that the SaaS Products may not properly operate should any Authorized User fail to do so, and that REACHWARE is not liable for any damages caused by a failure to update mobile applications accordingly.
2. Payment and Taxes
2.1. Payment Terms.
Customer shall pay all invoices within thirty (30) days of the date of invoice, without any deduction or set-off (except for any amount disputed promptly and in writing by Customer in good faith), and payment will be sent to the address specified by REACHWARE. Any amounts arising in relation to this Agreement not paid when due will be subject to a late charge of one and --- percent (--- %) per month on the unpaid balance or the maximum rate allowed by law, whichever is less. Without prejudice to Customer’s rights set out elsewhere in this Agreement, all SaaS Products fees are non-refundable and payable in advance. REACHWARE may invoice for purchases of SaaS Products upon delivery.
2.2. Taxes.
The fees and charges covered by this Agreement are exclusive of any Indirect Taxes imposed or levied, currently or in the future based on applicable legislation, on the SaaS Products. Unless otherwise agreed between the Parties, Customer will be liable for compliance with reporting and payment of such Indirect Taxes in its tax jurisdiction. REACHWARE shall include the Indirect Taxes on its invoice to Customers and remit such Indirect Taxes collected to the relevant authority if required by applicable law. REACHWARE will be responsible for direct taxes imposed on REACHWARE’s net income or gross receipts in its tax jurisdiction. Notwithstanding the foregoing, all payments made under this Agreement shall be in cleared funds, without any deduction or set-off, and free and clear of and without deduction from any Indirect Taxes or other withholdings of any nature.
2.3. Indirect Orders.
If Customer places an Indirect Order, then REACHWARE grants the rights described in this Agreement in consideration for and subject to (a) Customer’s agreement to comply with the pricing and payment terms of the Indirect Order, to be separately agreed between Customer and the applicable Channel Partner; and (b) Customer’s agreement to comply with its obligations set forth in this Agreement (including the restrictions on the use of the SaaS Products). Notwithstanding the foregoing, the final sales price or rate shall be freely and independently determined between the applicable Channel Partner and Customer. For the avoidance of doubt, in the case of such an Indirect Order, any indication in this Agreement of an agreement between Customer and REACHWARE for the price payable by Customer for such Indirect Order shall be null and void and not form a binding part of this Agreement and the provisions of this Agreement related to payment terms, pricing, and/or order procedures shall not apply.
3. Rights in Intellectual Property
3.1. Intellectual Property.
Except for the rights granted in this Agreement, all rights, title, and interest in and to the SaaS Products, Documentation, and REACHWARE Intellectual Property are hereby reserved by REACHWARE, its Affiliates, or licensors. Except as provided for herein, all rights, title, and interest in and to Customer Intellectual Property are hereby reserved by Customer, its Affiliates or licensors. Nothing in this Agreement shall transfer ownership of any Intellectual Property rights from one Party to the other.
3.2. Customer Data.
Customer owns all right, title and interest in all Customer Data. Nothing in this Agreement shall be construed to grant REACHWARE any rights in Customer Data beyond those expressly provided herein. Customer grants REACHWARE and its Affiliates the limited, non-exclusive, worldwide license to view and use the Customer Data solely for the purpose of providing the SaaS Products.
3.3. Usage Data and Suggestions.
REACHWARE shall be permitted to collect and use the Usage Data for its reasonable business purposes and for the Customer’s benefit. In the event REACHWARE wishes to disclose the Usage Data or any part thereof to third parties (either during the Subscription Term or thereafter), such data shall be deidentified and/or presented in the aggregate so that it will not identify Customer or its Authorized Users. The foregoing shall not limit in any way REACHWARE’s confidentiality obligations pursuant to section 4 below. To the extent that Customer provides REACHWARE with Suggestions, such Suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon REACHWARE pursuant to this Agreement, and may be implemented by REACHWARE in its sole discretion. The customer acknowledges that any REACHWARE products or materials incorporating any such Suggestions shall be the sole and exclusive property of REACHWARE.
4. Confidentiality
4.1. Confidential Information.
The Parties acknowledge that each may disclose certain valuable confidential and proprietary information to the other Party. The receiving Party may only use the disclosing Party’s Confidential Information to fulfill the purposes of this Agreement and in accordance with the terms of this Agreement. The receiving Party will protect the disclosing Party’s Confidential Information by using at least the same degree of care as the receiving Party uses to protect its own Confidential Information of a like nature (but no less than a reasonable degree of care) to prevent the unauthorized use, dissemination, disclosure or publication of such Confidential Information. Notwithstanding the foregoing, the receiving Party may disclose Confidential Information to its (and its Affiliates) employees, advisors, consultants, and agents on a need-to-know basis and provided that such party is bound by obligations of confidentiality substantially similar to those contained herein. This section 4 supersedes any and all prior or contemporaneous understandings and agreements, whether written or oral, between the Parties with respect to Confidential Information and is a complete and exclusive statement thereof. Additionally, the obligations set forth in section 5.4 and not this section 4 herein apply to Customer Data.
4.2. Exceptions.
Information will not be deemed Confidential Information if it: (i) is known to the receiving Party prior to receipt from the disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (ii) becomes known (independently of disclosure by the disclosing Party) to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving Party; or (iv) is independently developed by the receiving Party without the use of or reliance upon the disclosing Party’s Confidential Information, and the receiving Party can provide evidence to that effect. The receiving Party may disclose Confidential Information pursuant to the requirements of a court, governmental agency or by operation of law but shall (to the extent permissible by law) limit such disclosure to only the information requested and give the disclosing Party prior written notice sufficient to permit the disclosing Party to contest such disclosure.
4.3. Advertising and Publicity.
Neither Party shall make or permit to be made any public announcement concerning the existence, subject matter or terms of this Agreement or relationship between the Parties without the prior written consent of the other Party except as expressly permitted in this section. Customer grants REACHWARE and its Affiliates during the term of the Agreement the right to use Customer's trade names, logos, and symbols (“Customer Marks”) in its public promotional materials and communications for the sole purpose of identifying Customer as a REACHWARE customer. REACHWARE shall not modify the Customer Marks, or display the Customer Marks any larger or more prominent on its promotional materials than the names, logos, or symbols of other REACHWARE customers. The foregoing promotional materials and communications may be created, displayed, and reproduced without Customer’s review, provided that they are in compliance with this section and any Customer Marks usage guidelines provided by Customer to REACHWARE in writing.
5. Security and Processing of Personal Data
5.1. Customer Data Content.
As between REACHWARE and Customer, Customer is solely responsible for (i) the content, quality and accuracy of Customer Data as made available by Customer and by Authorized Users; (ii) providing notice to Authorized Users with regards to how Customer Data will be collected and used for the purpose of the SaaS Products; (iii) ensuring Customer has a valid legal basis for processing Customer Data and for sharing Customer Data with REACHWARE (to the extent applicable); and (iv) ensuring that the Customer Data as made available by Customer complies with applicable laws and regulations including Applicable Data Protection Laws.
5.2. Data Protection Laws.
The Parties shall comply with their respective obligations under the Applicable Data Protection Laws.
5.3. Security of Customer Data.
REACHWARE shall: (i) ensure that it has in place appropriate administrative, physical, and technical measures designed to protect the security and confidentiality of Customer Data against any accidental or illicit destruction, alteration, or unauthorized access or disclosure to third parties; (ii) have measures in place designed to protect the security and confidentiality of Customer Data; and (iii) access and use the Customer Data solely to perform its obligations in accordance with the terms of this Agreement, and as otherwise expressly permitted in this Agreement. REACHWARE shall not materially diminish its security controls with respect to Customer Data during a particular SaaS Products term.
6. Warranties
6.1. Limited SaaS Products Warranty.
During the applicable Subscription Term, REACHWARE warrants that (a) the SaaS Products will perform in substantial conformity with the Documentation; and (b) REACHWARE will use industry-standard measures designed to detect viruses, worms, Trojan horses or other unintended malicious or destructive code in the SaaS Products. The foregoing warranties are void if the failure of the SaaS Products has resulted from negligence, error, or misuse of the SaaS Products (including use not in accordance with the Documentation) by Customer, the Authorized User or by anyone other than REACHWARE. The customer shall be required to report any breach of warranty to REACHWARE within a period of thirty (30) days of the date on which the incident giving rise to the claim occurred. REACHWARE’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for breach of these warranties, will be for REACHWARE, at its expense, to use reasonable commercial efforts to correct such nonconformity within thirty (30) days of the date that notice of the breach was provided; and, if REACHWARE fails to correct the breach within the such cure period, Customer may terminate the affected Order and, in such event, REACHWARE shall provide Customer with a pro-rata refund of any unused pre-paid fees paid for the period following termination as calculated on a monthly basis for the affected SaaS Products. Without derogating from REACHWARE’s obligations under this Agreement, Customer warrants that it shall take and maintain appropriate steps within its control to protect the confidentiality, integrity, and security of its Confidential Information and Customer Data, including: (i) operating the SaaS Products in accordance with the Documentation and applicable law and; and (ii) dedicating reasonably adequate personnel and resources to implement and maintain the security controls set forth in the Documentation. The customer will be responsible for the acts and omissions of its Authorized Users.
6.2. Compliance with Law.
Each Party shall comply with all applicable, laws and regulations in connection with the performance of its obligations and the exercise of its rights under this Agreement.
6.3. Disclaimer.
Any and all warranties, expressed, incorporated, or implied, are limited to the extent and period mentioned in this Agreement. To the maximum extent allowed by applicable law, REACHWARE disclaims (and disclaims on behalf of its licensors and/or contributors to any Third-Party Materials) all other warranties, conditions and other terms, whether express or implied or incorporated into this Agreement by statute, common law or otherwise, including the implied conditions and warranties of merchantability and fitness for a particular purpose. REACHWARE will have no liability for delays, failures or losses are attributable or related in any way to the use or implementation of third-party software or services not provided by REACHWARE.
7. Indemnification
7.1. Infringement Indemnity.
REACHWARE shall defend and indemnify Customer and/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 SaaS Products in accordance with this Agreement and the Documentation, and all directly related losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees).
7.2. Customer Data and Use Indemnity.
Customer shall defend and indemnify REACHWARE and/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 patent, copyright, trademark, trade secret; or (ii) REACHWARE’s use of the Customer Data violating applicable law, provided that such use is in accordance with the terms of this Agreement and (where applicable) with the terms of the DPA.
7.3. Process.
Each Party’s defense and indemnification obligations herein will become effective upon, and are subject to: (a) the indemnified Party’s prompt notification to the indemnifying Party of any claims in writing; and (b) the indemnified Party providing the indemnifying Party with full and complete control, authority and information for the defense of the claim, provided that the indemnifying Party will have no authority to enter into any settlement or admission of the indemnified Party’s wrongdoing on behalf of the indemnified Party without the indemnified Party’s prior written consent (not to be unreasonably withheld). At the indemnifying Party’s request, the indemnified Party shall reasonably cooperate with the indemnifying Party in defending or settling any claim.
7.4. Exclusions.
The above REACHWARE obligations to defend and indemnify will not apply in the event that a claim arises from or relates to (a) the use of the SaaS Products not in accordance with the Documentation and this Agreement; (b) Customer’s use of the SaaS Products in violation of applicable laws; (c) any modification, alteration or conversion of the SaaS Products not created or approved in writing by REACHWARE; (d) any combination or use of the SaaS Products with any computer, hardware, software, data or service not required by the Documentation; (e) REACHWARE’s compliance with specifications, requirements or requests of Customer; or (f) Customer’s gross negligence or willful misconduct.
7.5. Remedies.
If the SaaS Products becomes, or REACHWARE reasonably determines that the SaaS Products is likely to become, subject to a claim of infringement for which REACHWARE must indemnify Customer as described above, REACHWARE may at its option and expense: (a) procure for Customer the right to continue to access and use the SaaS Products, (b) replace or modify the SaaS Products so that it becomes non-infringing without causing a material adverse effect on the functionality provided by the infringing SaaS Products, or (c) if neither of the foregoing options are available in a timely manner on commercially reasonable terms, terminate the affected Order and provide Customer with a pro-rata refund of any unused pre-paid fees paid for the period following termination as calculated on a monthly basis for the affected SaaS Product. This section titled “Indemnification” states the sole liability of REACHWARE and the exclusive remedy of Customer with respect to any indemnification claims arising out of or related to this Agreement.
8. Limitation of Liability
8.1. Maximum Liability.
Except for liability caused by REACHWARE’s intellectual property infringement indemnification obligations in section 7.1, Customer’s data infringement indemnity in section 7.2, or Customer’s payment obligations herein, in no event will either Party’s maximum aggregate liability arising out of or related to this Agreement, regardless of the cause of action and whether in contract, tort (including negligence), warranty, indemnity or any other legal theory, exceed the total amount paid or payable to REACHWARE under this Agreement during the twelve (12) month period preceding the date of the initial claim.
8.2. No Consequential Damages.
Neither Party will have any liability to the other Party for any loss of profits or revenues, loss of goodwill, or for any indirect, special, incidental, consequential, or punitive damages arising out of, or in connection with this Agreement, however, caused, whether in contract, tort (including negligence), warranty, indemnity or any other legal theory, and whether or not the Party has been advised of the possibility of such damages.
8.3. Construction.
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.
9. Assignment.
Neither Party may assign any of its rights or obligations under this Agreement without the other Party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign any and all of its rights and obligations under this Agreement to a successor in interest in the event of a merger or acquisition or to an Affiliate, upon written notice to the other Party.
10. Restricted Rights and Export Control
10.1. Export Control.
The exportation of the SaaS Products and Documentation, and all related technology and information thereof are subject to U.S. laws and regulations pertaining to export controls and trade and economic sanctions, including the U.S. Export Administration Act, Export Administration Regulations, the Export Control Reform Act, and the Office of Foreign Assets Control’s sanctions programs, the laws of the State of Israel, and the laws of any country or organization of nations within whose jurisdiction Customer (or its Authorized Users who may use or otherwise receive the SaaS Products as expressly authorized by this Agreement) operates or does business, as amended, and the rules and regulations promulgated from time to time thereunder. Specifically, Customer hereby undertakes not to export, re-export, access, or grant access to the SaaS Products and all related technology, information, materials, and any upgrades thereto to (a) any Prohibited Persons; (b) any country to which such export, re-export or access from is restricted or prohibited per the foregoing applicable laws; or (c) otherwise in violation of any applicable export or import restrictions, laws or regulations. The customer also certifies that it is not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person.
10.2. Commercial Computer Software.
If Customer is an agency or contractor of the United States Government, Customer acknowledges and agrees that: (i) the SaaS Products (including any software forming a part thereof) were developed entirely at private expense; (ii) the SaaS Products (including any software forming a part thereof) in all respects constitute proprietary data belonging solely to REACHWARE; (iii) the SaaS Products (including any software forming a part thereof) are not in the public domain; and (iv) the software forming a part of the SaaS Products is “Commercial Computer Software” as defined in subparagraph (a)(1) of DFARS section 252.227-7014 or FAR Part 12.212. Customer shall provide no rights in the Software (including any software forming a part thereof) to any U.S. Government agency or any other party except as expressly provided in this Agreement.
11. Professional Services.
Customers may separately purchase from REACHWARE professional services in relation to the SaaS Products as may be generally available by REACHWARE to its customers, pursuant to REACHWARE’s then-applicable professional services terms.
12. Term and Termination
12.1. Term.
This Agreement will be effective upon Customer’s first access of a SaaS Product and shall remain in force during the applicable Subscription Term of the SaaS Product or throughout Customer’s continued use of the SaaS Product, as applicable.
12.2. Termination.
Either Party may terminate this Agreement immediately upon notice to the other Party if the other Party: (i) materially breaches this Agreement and fails to remedy such breach within thirty (30) days after receiving written notice of the breach from the other Party; or (ii) commences bankruptcy or dissolution proceedings, has a receiver appointed for a substantial part of its assets or ceases to operate in the ordinary course of business. In addition, a Party may terminate this Agreement, an SOW, or an Order, in whole or in part, or cease provision of the SaaS Products if required to comply with applicable law or regulation, and such termination will not constitute a breach of this Agreement by the terminating Party. REACHWARE reserves the right to suspend Customer’s access to the applicable SaaS Products upon 30 days written notice to Customer if: (a) an invoice is more than sixty (60) days past due; or (b) if there is an uncured material breach of this Agreement. REACHWARE will promptly reinstate the Customer’s access and use of the SaaS Products/provision of the Professional Services once the issue has been resolved. Upon termination or expiration of the Agreement or an Order, (x) any accrued rights and obligations will survive; (y) all outstanding fees and other charges under the Agreement or Order (as applicable) will become immediately due and payable, and (z) Customer will have no further right to access or use the applicable SaaS Products or professional services. If Customer is converting its perpetual self-hosted software licenses to a SaaS Product, the applicable previously licensed perpetual self-hosted software licenses will be terminated, along with any associated support services, in accordance with the terms of the applicable Order.
12.3. Effects of Termination/Expiration.
Upon termination or expiration of an applicable Subscription Term, REACHWARE may immediately deactivate Customer’s account, and: (i) Customer will have no further right to access or use the SaaS Products, and (ii) each Party shall return or destroy any tangible Confidential Information of the other Party within its possession or control that is not contained on the SaaS Products promptly upon receiving a written request from the other Party. Any Customer Data contained on the SaaS Products will be deleted within sixty (60) days of termination/expiration of Customer’s Subscription Term. Customer acknowledges that it is responsible for exporting any Customer Data to which Customer desires continued access after termination/expiration, and REACHWARE 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 40 days following termination or expiration of the Customer’s Subscription Term. Any Customer Data contained on the SaaS Products will be deleted within 60 days of termination or expiration of Customer’s Subscription Term.
13. Miscellaneous
13.1. Independent Contractors.
Nothing in this Agreement will be construed to imply a joint venture, partnership or principal-agent relationship between REACHWARE and Customer, and neither Party will have the right, power or authority to obligate or bind the other in any manner whatsoever.
13.2. Notices.
All Notices will be in writing and will be deemed to have been duly given: (a) when delivered by hand; (b) three (3) days after being sent by registered or certified mail, return receipt requested and postage prepaid; (c) one (1) day after deposit with a nationally recognized overnight delivery or express courier service; or (d) when provided via email when the sender has received a delivery/read receipt. Notices for REACHWARE should be sent to the following addresses: (i) physical Notices to the address specified for REACHWARE in section 13.4 “Governing Law and Jurisdiction” and; (ii) electronic Notices to: [email protected] In the event that the Customer has any technical support-related queries, the contact information for support can be found at: https://reachware.io/contact-us.
13.3. Force Majeure.
With the exception of Customer’s payment obligations herein, neither Party will be liable to the other Party for any delay or failure to perform which is due to fire, pandemic, virus, epidemic, travel advisories as to health, security and/or terrorism, flood, lockout, transportation delay, war, acts of God, governmental rule or order, strikes or other labor difficulties, or other causes beyond its reasonable control. However, in such event, both Parties will resume performance promptly after the cause of such delay or failure has been removed.
13.4. Governing Law and Jurisdiction.
Each Party agrees to the applicable governing law below without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable Saudi Arabian Courts in Riyadh City with respect to any dispute, claim, action, suit, or proceeding (including non-contractual disputes or claims) arising out of or in connection with this Agreement, or its subject matter or formation. To the extent not prohibited by applicable law, each of the Parties hereby irrevocably waives any and all rights to trial by jury in any legal proceeding arising out of or related to this Agreement.
13.5. Entire Agreement, Execution, and Modification.
This Agreement supersedes all prior agreements and representations between the Parties regarding the subject matter of this Agreement. The terms and conditions contained in any Order issued by Customer will be of no force or effect, even if the Order is accepted by CyberArk. CyberArk may make changes to these Terms of Service from time to time. If CyberArk makes a material change to any of the foregoing, CyberArk will inform Customer by e-mail to the e-mail address(es) noted on the Order (or subsequently designated by Customer in writing as a contact for notifications from CyberArk), or through a banner or other prominent notice within the SaaS Products, or through the CyberArk support platform. If Customer does not agree to the change, Customer must so notify CyberArk by e-mail to [email protected] within thirty (30) days after CyberArk’s notice. If Customer so notifies CyberArk, then Customer will remain governed by the most recent terms of service applicable to Customer until the end of the then-current year of the Subscription Term and the updated terms shall apply upon the commencement of the subsequent Subscription Term.
13.6. Severability and Waiver.
This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Should any term or provision of this Agreement be declared void or unenforceable by any court of competent jurisdiction, the Parties intend that a substitute provision will be added to this Agreement that, to the greatest extent possible, achieves the intended commercial result of the original provision. The failure of either Party to enforce any rights granted to it hereunder or to take action against the other Party in the event of any breach hereunder will not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches