SOFTWARE AS A SERVICES (SAAS) AGREEMENT

IMPORTANT – PLEASE READ CAREFULLY THE TERMS OF THIS SOFTWARE AS A SERVICES (SAAS) AGREEMENT (“AGREEMENT”). BY CLICKING “I AGREE”, “ACCEPT” OR OTHER SIMILAR BUTTON OR BY INSTALLING, ACCESSING AND/OR USING SOURCE DEFENSE’ SERVICES, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU, OR THE COMPANY YOU REPRESENT, (“YOU” OR “CUSTOMER“) ARE ENTERING INTO A LEGAL AGREEMENT WITH SOURCE DEFENSE, (“COMPANY“), AND HAVE UNDERSTOOD AND AGREE TO COMPLY WITH, AND BE LEGALLY BOUND BY, THE TERMS AND CONDITIONS OF THIS AGREEMENT. DO NOT SELECT “I AGREE” OR INSTALL OR USE THE SOFTWARE OR SERVICES UNTIL YOU HAVE CAREFULLY READ, UNDERSTOOD AND AGREED TO THESE TERMS. FURTHERMORE, YOU HEREBY WAIVE ANY RIGHTS OR REQUIREMENTS UNDER ANY LAWS OR REGULATIONS IN ANY JURISDICTION WHICH REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW.

YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE OR SERVICES TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM THE SOFTWARE OR SERVICES.

YOU ARE ENTERING INTO THIS AGREEMENT WITH COMPANY’S FOLLOWING ENTITY, BASED ON YOUR LOCATION: (I) WITH SOURCE DEFENSE, INC., IF YOU ARE LOCATED IN THE AMERICAS; OR (II) WITH SOURCE DEFENSE LTD., IF YOU ARE LOCATED IN THE REST OF THE WORLD.

Agreed terms

Interpretation

In this Agreement, the following definitions shall have the following meanings:

“Data” means any data submitted to the Services by the Customer.

“Services” means an online cloud based software as a service (SaaS) for assessing, monitoring, reporting on and managing compliance with the websecurity requirements found under PCI DSS 4.0 (6.4.3 and 11.6.1), made available to Customer pursuant to the terms of this Agreement. The Company reserve the right to modify and/or limit the functionalities and/or scope of the Services and/or discontinue the provision of the Services at any given time, as shall be determined by the Company from time to time, at its sole discretion.

1. 1. The headings used in this Agreement are for convenience of reference only and shall not affect the interpretation or meaning of the terms and provisions of this Agreement.
   2. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

Grant of Rights; Prohibited Use

1. 1. Subject to the terms of this Agreement and with any applicable law, the Company hereby grants to the Customer, during the Term (as defined below), solely for the Customer’s internal business operations, a limited, non-perpetual, non-exclusive, non-transferable right to access and use the Services. 
   2. Notwithstanding the aforesaid, Company hereby grants to the Customer a limited right to share and transfer the report and/or output and/or analytics and/or recommendations and/or notices and/or insights and/or conclusion and/or other types of information and data that the Services may generate through its use (collectively, the “Report“) solely to Customer’s customer, who owns the URL for which such Report refers to (“Customer’s End User“). 
   3. The Customer represents and warrants to the Company that: (i) it has fully right and authority to use the Services on its Customer’s End User’s URL and that the Customer’s End User has expressly agreed to the use of the Services and hereinafter provided by the Company; (ii) it has fully right and authority to provide the Company with any Data and/or information of the Customer’s End User, as required by the Services. 
   4. The Report shall be provided and/or transferred to the Customer’s End User, subject to Customer’s full compliance with the following provisions: (i) the Report will be transferred “as-is” with no changes, modification and/or additions to the format in which such Report is provided and/or generated by the Services, including any logo and name of the Company as shown on the Report format; (ii) any communication of Customer with any Customer’s End User, shall specifically name the Company as the provider and generator of the Services and any Report thereof and Customer shall make no misleading representations in that respect; (iii) the use of the Report by the Customer shall be restricted and limited to the purposes strictly defined by the Customer’s End User, in accordance with the engagement between the Customer and the Customer’s End User; (iv) in no event will the Customer and/ the Customer’s End User, use the Report for any use except for  any use except for assessing, monitoring, reporting on and managing compliance with the websecurity requirements found under PCI DSS 4.0 (6.4.3 and 11.6.1) 
   5. The Customer shall not and shall not attempt to: (a) copy, modify, duplicate, imitate, reproduce, create derivative works from, frame, mirror, or download, all or any portion of the Services in any form or media or by any means; and/or (b) decompile, disassemble, reverse engineer or otherwise attempt to discover any source code from all or any part of the Services; and/or (c) sell, rent, lease, transfer, assign, distribute, transmit, display, publish, disclose, abuse the Services in any way or otherwise dispose, commercially exploit, or otherwise make the Services available to any third party; and/or (d) obtain, or assist third parties in obtaining, unauthorized access to the Services; and/or (e) create or send any viruses, worms or Trojan horses, flood or mail bombs, or engaging in denial of service attacks while using the Services; and/or (f) use or launch any automated system that access the Services in a manner, including without limitation, any “robots”, “spiders”, or “offline readers”; and/or (g) use the Services in any manner that damages, disables, overburdens or impairs the Services, or Company’s systems or servers, or the cloud or other platform on which the Services operate, and/or otherwise interferes with any other party’s use and enjoyment of the Services; and/or (h) make available through the Services, any Data not in compliance with Section 4.2 below; and/or (i) use the Services in any manner that is prohibited or in violation of this Agreement and/or any applicable law or regulation; and/or (j) allow or cause any third party to do any of the foregoing.  
   6. Customer shall have the exclusive responsibility and liability for any claim and/or demands by the Customer’s End User with respect to the Services and/or the Data and/or any derivates thereof. The Customer shall remain fully responsible and liable to the Company for any breach of the provisions of this Agreement by the Customer’s End User. 
   7. The Company reserves the right, at its sole discretion without any liability to the Customer, to disable, suspend or terminate the Customer’s access to the Services, in its sole discretion.
   8. The Customer shall use all endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, shall promptly notify the Company thereof. 
   9. The rights provided under this Section ‎2 are granted to the Customer only, and shall not be considered granted to any subsidiary, affiliate or holding company of the Customer.

Services

1. 1. The Company shall use commercially reasonable endeavours to make the Services available to the Customer.
   2. This Agreement shall not prevent the Company from entering into similar agreements with third parties, or from independently developing, using, selling, licensing or provide any rights with respect to services, products and/or documentation which are similar to those provided under this Agreement.
   3. Customer acknowledge and agree that Company may, from time to time, send you offers for new products and features, announcements, marketing materials and promotional offers via email. You may opt-out of such communication by contacting Company’s customer service.

Data

1. 1. As between the Parties, the Customer shall own all rights, title and interest, in and to all of the Data. Customer hereby represents that it shall have, the right to use, distribute and/or otherwise provide the Company with the Data, through the Services. Customer shall have the exclusive responsibility and liability for the Data, provided to Company. 
   2. The Customer represents and warrants that the Data provided to Company, while using the Services, will not violate any applicable law, regulation or agreement. 
   3. Customer grants to Company, and Company accepts from Customer, a worldwide, non-exclusive, royalty-free license to access, store, copy, display, use and transmit the Data, for the benefit of Customer and/or the provisions of the Services to Customer.

Third party providers

1. 1. The Customer acknowledges that the Company uses third party cloud infrastructure services in order to provide the Services. The Customer acknowledge and agrees that the Company is not and shall not be responsible for the availability, performance or security of any such external third party services or resources, and it shall not be held liable for any loss or damage (including loss of data and/or loss of profits), which may be incurred by the Customer, as a result of the lack of availability of, the interruptions or errors in the performance of, and any other problem in those external third party services or resources, or as a result of the lack of availability of, the interruptions or errors in the performance of, and any other problem in the Services provided through such external third party services or resources.
   2. The Company may utilize, include or otherwise make available in the Services third-party software and libraries that are subject to open source and/or third-party license terms (“Open Source Software”). Customer hereby acknowledge and agree that its right to use such Open Source Software in connection with the Services is subject to and governed by the terms and conditions of the open source or third-party license applicable to such Open Source Softwareincluding, without limitation, any applicable acknowledgements, license terms and disclaimers contained in such license. In the event of a conflict between the terms of this Agreement and the terms of such open source or Open Source Software licenses, the terms of the Open Source Software licenses shall control with regard to Customer’s use of the relevant Open Source Software. Other than the applicable Open Source Software, in no event, shall the Services or components thereof be deemed to be “open source” or “publicly available” software. 

Statistical Information

The Company may compile statistical information related to the performance of the Services and may use and/or make such information publicly available. The Company retains all intellectual property rights in and to such information.

Customer’s Undertakings

Without derogating from any other obligation of the Customer pursuant to this Agreement, the Customer undertakes to: (a) provide the Company with all necessary cooperation in relation to this Agreement and in order for the Company to render the Services to Customer; and (b) comply with all applicable laws and regulations with respect to its activities under this Agreement and its use of the Services; and (c) carry out all of its other responsibilities set out in this Agreement in a timely and efficient manner; and (d) to the extent required, obtain and maintain all necessary licences, consents, and permissions necessary for the Company to perform its obligations under this Agreement; and (e) ensure that its network and systems comply with the relevant specifications provided by the Company from time to time; and (f) be solely responsible for procuring and maintaining its network connections and telecommunications links connecting between the Customer’s systems and the Company’s data centres, Company’s servers, third party’s external servers, cloud or other platform on which the Services operate (as shall be instructed by the Company from time to time), and be solely liable for problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to such Customer’s network connections or telecommunications links or otherwise caused by the internet. 

Charges and payment

The access and use of the Services is currently free of charge and therefore, without derogating from the disclaimers set forth in this Agreement, will be made upon your sole and exclusive responsibility and liability, and entirely at Customer’s own risk and Company shall not have any liability for the use of the Services or provide any warranty of any kind whatsoever regarding the Services. Company reserves the right, at any time in its sole discretion, to decide that the use of the Services, or any part thereof, shall be subject to the payment of any fees. Company shall notify Customer of the implementation of any payment as aforesaid, and upon such notification such implementation shall be binding and Customer shall be obligated to pay such payment unless it cease using the Services.

Proprietary rights

1. 1. The Company shall retain all right, title and interest, including without limitation all patents, copyrights, trade secrets, trademarks, and other intellectual property and proprietary rights, in and to the Services and/or the Report and/or the Company’s technology, including without limitations, any improvements, updates, upgrades, error-corrections or other modifications thereof, and any work products thereof. Except for the rights expressly granted to the Customer under Section ‎2.1 above, this Agreement does not grant the Customer any rights to or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Company, its technology, its products and services (including the Services) and/or any documentation ancillary thereof. 
   2. Without derogating from the generality of the above, the Company shall be the sole and exclusive owner of all rights in connection with any and all ideas, inventions and/or improvements (whether patentable or not) conceived, derived, result from or relate to, directly or indirectly, any feedback (written or oral) that the Customer voluntarily provide to the Company in connection with the Services and/or the Customer’s experience while using the Services. The Customer irrevocably assigns to the Company any rights that the Customer may have or acquire in such ideas, inventions and/or improvements, and it irrevocably waives any right it has or may have in the future to receive any payment, royalties or other consideration (of any kind) with respect to such ideas, inventions and/or improvements. 
   3. This Section 9 shall survive any termination or expiration of this Agreement.  

Confidentiality

1. 1. Each party may be provided with, given access to, or exposed to, Confidential Information of the other party in connection with this Agreement. “Confidential Information” shall mean any information and data of a proprietary or confidential nature, whether in oral, written, graphic, machine-readable form, or in any other form, including but not limited to proprietary, technical, development, marketing, sales, price, operating, performance, cost, know-how, business and process information, methods, procedures, data, computer programming techniques and computer code, any information regarding suppliers, licensors, licensees, partners, affiliates, customers, potential customers or others, and all records bearing media containing or disclosing such information and techniques, which is disclosed by one party to the other party pursuant to this Agreement or to which the other party is exposed or given access in connection with this Agreement, whether or not marked as “Confidential” or similar marking. Without derogating from the generality of the foregoing, Confidential Information of the Company shall also include the details of the Services, the results of any performance tests of the Services and any work products of the Services; Confidential Information of the Customer shall also include the Data. 
   2. Confidential Information shall not include any information that: (a) is or becomes publicly known other than through any act and/or omission of the receiving party; (b) was in the receiving party’s lawful possession before the disclosure, as evidenced by applicable documentary; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (d) is independently developed by the receiving party, as evidenced by applicable documentary; or (e) is required to be disclosed by any final judicial or administrative order or decree or pursuant to any applicable law.
   3. Each party shall hold the other party’s Confidential Information in strict confidence, shall not disclose or make such Confidential Information available to any third party, and shall not use such Confidential Information for any purpose other than for performing its obligations under this Agreement.
   4. Each party shall be entitled to disclose the other party’s Confidential Information to its officers, directors, employees and consultants (the “Representatives“), on a need to know basis, provided that such Representatives are bound by confidentiality obligations of at least scope of this Agreement, and provided further that such party shall be responsible for and liable to any breach or violation of the this Agreement by such Representatives.
   5. This Section 11 shall survive any termination or expiration of this Agreement.

Export

1. 1. Export laws and regulations of the United States and Israel and any other relevant local export laws and regulations apply to the Services. The Customer acknowledges and agrees that such export laws govern Customer’s use of the Services, and the Customer agrees to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). The Customer agrees that no data, information, programs and/or materials resulting from the Services (or work products thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws, including without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology. 

Indemnity

1. 1. The Customer shall defend, indemnify and hold harmless the Company or anyone on its behalf against any and all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs, legal expenses and reasonable legal fees) arising out of, or in connection with, this Agreement and/or the use of the Services by the Customer or by anyone on its behalf (including without limitation the Customer’s End User).
   2. This Section 12 shall survive any termination or expiration of this Agreement.

Limitation of liability

1. 1. Notwithstanding anything to the contrary herein: (a) in no event shall the Company be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise, for any loss of profits, loss of business, depletion of goodwill and/or similar losses, loss or corruption of data or information, pure economic loss, or for any special, indirect, punitive, incidental, consequential, exemplary or other similar loss, costs, damages, charges or expenses, arising out of or in any way related to the use of, misuse, inability to use, or the reliance upon, the Services and/or otherwise in connection with this; and (b) in no event shall the Company’s total aggregate liability, in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising out of or in any way related to the use of, misuse, inability to use, or the reliance upon, the Services and/or otherwise in connection with this Agreement, exceed 1$.
   2. This Section ‎13 shall survive any termination or expiration of this Agreement.

Disclaimers 

1. 1. EXCEPT AS OTHERWISE EXPRESSLY SPECIFIED UNDER THIS AGREEMENT, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND WHATSOEVER. ALL EXPRESS, IMPLIED AND/OR STATUTORY WARRANTIES IN CONNECTION WITH THE SERVICE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES REGARDING SECURITY, SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, ACCURACY AND PERFORMANCE OF THE SERVICES, ARE ALL EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE COMPANY (OR ANYONE ON ITS BEHALF) IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY, IF NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.
   2. The Customer assumes the sole responsibility for results obtained from the use of the Services and for conclusions drawn from such use. The Company shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Company by the Customer in connection with the Services (including without limitation, Data), or any actions taken by the Company at the Customer’s direction.
   3. Notwithstanding anything to the contrary herein, the Company will not be held liable for any delay or failure in performance or non-availability of the Services resulting, directly or indirectly, from acts of nature, forces, events, omissions, accidents or causes beyond its reasonable control, including, but not limited to, electrical power failures, strikes, lock-outs or other industrial disputes, labour disputes, acts of God, pandemic or wars.This Section ‎15 shall survive any termination or expiration of this Agreement.

Term and termination

1. 1. This Agreement shall commence upon clicking the “accept” or “agree” or similar approval of this Agreement by You, and shall continue until terminated by the Company by written notice. (the “Term“). 
   2. Notwithstanding the foregoing and without prejudice to any other rights or remedies to which the parties may be entitled under this Agreement and/or any applicable law, the Company may immediately terminate this Agreement or suspend Customer’s access to the Services, without liability to the Customer if: (a) the other party commits a material breach of any of the terms of this Agreement; and/or (b) if the other party (i) becomes insolvent, (ii) makes an assignment for the benefit of creditors, (iii) files or has filed against it a petition in bankruptcy or seeking reorganization, (iv) has a receiver appointed, or (v) institutes any proceedings for liquidation or winding up.
   3. Upon termination or expiration of this Agreement for any reason whatsoever: (a) all rights granted to the Customer under this Agreement shall immediately terminate; (b) the Customer shall immediately cease any use of the Services; (c) each party shall return and make no further use of any Confidential Information (and all copies thereof) belonging to the other party; and (d) the Company shall destroy any of the Data in its possession (if any). For the avoidance of doubt, any provision expressly stated to survive or implicitly surviving termination or expiration shall not be affected or prejudiced by such termination or expiration.

Governing Law & Jurisdiction

1. 1. If you are located in the Americas, this Agreement shall be governed by the laws of the State of New York, without regard to its conflict or choice of laws principles. The Parties agree that any and all disputes concerning this Agreement shall be brought in the federal and state courts of the state of New York having jurisdiction thereof and irrevocably waive any and all claims and defenses either might otherwise have in any such action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar claim or defense.
   2. If you are located in the rest of the world (excluding the Americans), this Agreement shall be construed and enforced in all respects in accordance with the laws of Israel, without reference to principles of conflict or choice of law. The courts located in the Tel-Aviv District of the State of Israel shall have exclusive jurisdiction over any dispute or matter in connection with this Agreement.
   3. The parties specifically disclaim applicability of the 1980 UN Convention on Contracts for the International Sale of Goods or any laws based on the Uniform Computer Information Transactions Act (UCITA).

Miscellaneous

1. 1. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes any previous arrangement, understanding or agreement between the parties, written or oral, relating to the subject matter hereof.
   2. No modification to this Agreement, nor any waiver of any rights, will be effective unless assented to in writing and signed by both parties. 
   3. Neither party’s waiver of any breach or default of any provision of this Agreement shall not constitute a waiver of other provisions or any other right hereunder, or a waiver of any subsequent breach or default.
   4. Unless expressly provided otherwise herein, rights arising under this Agreement are cumulative and do not exclude rights available by law.
   5. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions (or the remainder of the provision) shall remain in full force and effect.
   6. This Agreement does not confer any rights on any third person or party.
   7. During the term of this Agreement, Company may use Customer’s name and logo to identify Customer as a customer of Company or user of the Services, on Company’s web site, marketing materials or otherwise.
   8. The parties expressly agree that they are independent contractors. Nothing in this Agreement is intended to or shall be interpreted to create a partnership or a joint venture between the parties or authorize either party to act as agent for the other.
   9. The Customer shall not, without the prior written consent of the Company, assign, transfer, or sub-contract this Agreement and/or any of its rights or obligations under this Agreement, and any unauthorized assignment shall be null and void. The Company may, at any time, assign, transfer or sub-contract any of its rights or obligations under this Agreement. 
   10. Any required or permitted notices hereunder must be given in writing at the address of each party set forth below, or to such other address as either party may substitute by written notice to the other party in the manner contemplated herein, by one of the following methods: hand delivery; registered, express, or certified mail (return receipt requested), postage prepaid; or nationally-recognized private express courier. Notices will be deemed given within 5 days from the delivery date if sent by mail, or within 1 day from the delivery date if send by a courier or delivered by hand.

CUSTOMER EXPRESSLY ACKNOWLEDGES THAT CUSTOMER HAS READ THE TERMS OF THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY SIGNING THIS AGREEMENT, OR CLICKING “I AGREE”, “ACCEPT” OR SIMILAR BUTTON, AND/OR CONTINUING TO DOWNLOAD, INSTALL, ACCESS OR USE THE SERVICES (AS APPLICABLE), CUSTOMER EXPRESSLY CONSENTS TO BE BOUND BY THE TERMS OF THIS AGREEMENT.