The following Advanced Services (the “Services”) Terms and Conditions (“ASTC”) are entered into by and between the parties listed, and as of the date stated on the Statement of Work (“SOW”) references these ASTC. These ASTC set forth the terms and conditions pursuant to which Clarity Ltd. or one or more of its affiliated entities (“Claroty”) will provide the Services to the customer (the “Customer”) in accordance with the SOW.
Unless terminated as provided herein, these ASTC commence on and shall continue through the term as set forth on each SOW (the “Term”).
Customer engages Claroty to provide the Services set forth in the SOW executed by both parties. Each SOW shall be incorporated into and shall form a part of these ASTC. In the event of a conflict between the provisions of these ASTC and a SOW, the relevant provisions of the SOW shall prevail.
These ASTC govern only the provision of the Services. Any hardware, software, and/or subscription services, including maintenance and support to be provided by Claroty to Customer shall be governed by a separate and applicable agreement.
Fees and Expenses.
In consideration of the Services, Customer will pay Claroty (or Claroty’s authorized reseller), in U.S. dollars (unless otherwise quoted in a different currency in the SOW), the fees set forth in each SOW. All fees are non-refundable.
Claroty’s fees shall be exclusive of all taxes and duties of any kind (including sales, excise or use tax, taxes in lieu thereof, or any other taxes or surcharges which may apply and any interest and penalties) which shall be borne and paid by the Customer. If any such tax or duty has to be withheld or deducted from any payment under this proposal, Customer shall gross-up the payment under this proposal by such amount to ensure that after such withholding or deduction, Claroty shall receive a net amount equal to the full amount of the relevant price had payment not been subject to tax withholding.
If Claroty has the legal obligation to pay or collect taxes for which Customer is responsible under this Section 3, the appropriate amount shall be invoiced to and paid by the Customer unless Customer provides Claroty with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer agrees to reimburse Claroty for its reasonable out-of-pocket expenses and costs, including travel and lodging incurred in connection with providing the Services under any SOW (“Expenses”).
If Customer issues a purchase order directly to Claroty, Claroty will invoice Customer for Services the fees set forth in the SOW and all Expenses at actual cost. Customer shall pay invoices within thirty (30) days of the date of invoice. Any late payment will be subject to any costs of collection (including reasonable legal fees) and bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less. Without derogating from any other rights and remedies that Claroty may have, in the event that Customer’s payments are past due, Claroty may cease providing the applicable Services until such time as Customer’s account is paid in full.
Each party (“Receiving Party”) agrees to keep confidential all technical, product, business, financial, and other information regarding the business and software of the other party (“Disclosing Party”), its affiliates, customers, employees, investors, contractors, vendors, and suppliers (the “Confidential Information”). For clarity, ‘Confidential Information’ does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party. Receiving Party shall at all times protect and safeguard the Confidential Information and agrees not to disclose, give, transmit, or otherwise convey any Confidential Information, in whole or in part, to any third-party. Receiving Party shall not, by authorized or unauthorized access, review, reverse engineer, disassemble, or decompile any Confidential Information. Except as provided hereunder, Receiving Party agrees that it will not use any Confidential Information for its own purpose or for the benefit of any third-party and shall honor the copyrights and other intellectual property rights of the Disclosing Party and will not copy, duplicate, or in any manner reproduce any such copyrighted materials. Upon request of Disclosing Party or upon termination of these ASTC, the Receiving Party shall promptly deliver to the Disclosing Party any and all documents, notes, or other physical embodiments of or reflecting the Confidential Information (including copies thereof) that are in its possession or control.
If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. Notwithstanding the foregoing, Customer acknowledges and agrees that Claroty will, as part of its provision of the Services to Customer, collect, store and use information obtained from Customer, including, but not limited to, information about Customer’s users and customers (“Information”) for the purposes of (i) providing the Services to Customer and (ii) analyzing and improving Claroty’s products and services. Customer represents and warrants that Customer has all rights and permissions necessary to grant Claroty access to such Information.
If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 5, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
Customer shall solely own all right, title and interest in and to its Confidential Information. Claroty shall solely own all worldwide right, title and interest in and to its Confidential Information and the Deliverables.
All Deliverables produced by Claroty under these ASTC will not be considered to be works made for hire and will be exclusively owned by Claroty and no ownership rights thereto will accrue in any manner to Customer, and Customer hereby agrees, upon written request from Claroty, to assign any rights of Customer in such Deliverables to Claroty. However, Claroty hereby grants to Customer, at no additional charge, a worldwide, non-exclusive, non-transferable, non-sublicensable license to use any Deliverables delivered as part of the Services. Except as otherwise expressly provided herein, nothing in these Services Terms will be deemed to grant, directly or by implication, estoppel or otherwise, any right or license with respect to any technology or other intellectual property rights of Claroty. Claroty reserves all rights, title and interest in and to the Deliverables, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth.
Notwithstanding any other provision of these ASTC: (i) nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, libraries, know-how, techniques and expertise (“Tools”) used by Claroty to develop the Deliverables, (ii) nothing herein shall preclude Claroty from using in any manner or for any purpose it deems necessary, the know- how, techniques, or procedures acquired or used by Claroty in the performance of Services hereunder, and (iii) “Deliverables” shall not include the Tools. To the extent necessary to use the Deliverables, Tools that are delivered with or as part of the Deliverables, are licensed, not assigned, to Customer, on the same terms as the Deliverables. For the purposes of these ASTC, “Deliverables” shall mean (i) any configurations, reports, and/or written documentation generated for Customer in connection with the performance of the Services; and (ii) as further shall be described in each applicable SOW.
Warranty and Disclaimer.
Claroty warrants that the Services shall be performed in a workmanlike and professional manner. EXCEPT AS OTHERWISE STATED IN THIS SECTION 7, CLAROTY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. CLAROTY HEREBY SPECIFICALLY DISCLAIMS, ON BEHALF OF ITSELF AND ITS SUPPLIERS, ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Limitations of Liability.
CLAROTY’S (AND CLAROTY AFFILIATES, LICENSORS AND AGENTS) LIABILITY ARISING OUT OR RELATED TO THE ASTC WILL NOT EXCEED, IN THE AGGREGATE, THE FEE ACTUALLY PAID TO CLAROTY FOR THE SERVICES UNDER A SOW THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM.
IN NO EVENT WILL CLAROTY (OR CLAROTY AFFILIATES, LICENSORS OR AGENTS) BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES OR ANY LOSS OF REVENUE, GOODWILL, PROFITS, DATA OR DATA USE ARISING OUT OR RELATED TO THESE ASTC. THE LIABILITIES LIMITED BY THIS SECTION 8 APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE; (iii) EVEN IF CLAROTY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE, (iv) ATTORNEYS FEES AND COSTS, AND (v) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THIS SECTION 8, CLAROTY’S (AND CLAROTY AFFILIATES, LICENSORS AND AGENTS) LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
Either party may terminate these ASTC upon sixty (60) days advance written notice to the other party; provided, if there is a SOW for which the parties have obligations that extend beyond such termination date, the terms of these ASTC shall continue to apply until all obligations have been satisfied or until terminated in accordance with section 9(b).
Either party may terminate these ASTC or any SOW hereunder immediately upon written notice (i) if the other party fails to perform its material obligations under these ASTC or any SOW and such failure is not cured within thirty (30) days of written notice of the breach from the non-breaching party; or (ii) in the event the other party breaches any of its obligations of confidentiality as set forth in Section 5. In addition, Claroty may terminate these ASTC or any SOW hereunder in the event Customer is more than thirty (30) days past due in its payments to Claroty.
In addition to any payment obligations due by the Customer to Claroty, the following sections shall survive termination of these ASTC for any or no reason: Sections 3, 4, 5, 6, 7, 8, 9 and 10.
The parties are independent contractors under these ASTC and nothing in these ASTC authorizes a party to act as an agent of the other or bind the other to any transaction or ASTC.
These ASTC will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign or transfer these ASTC in whole or in part by operation of law or otherwise, without the other party’s prior written consent. Any attempt to transfer or assign these ASTC without such written consent will be null and void. Notwithstanding the foregoing, either party may assign these ASTC without consent to the acquiring or surviving entity in a merger or acquisition in which such party is the acquired entity (whether by merger, reorganization, acquisition or sale of stock) or to the purchaser of all or substantially all of such party’s assets.
All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered mail (return receipt requested); or (iii) two (2) days after it is sent if by overnight delivery by a major commercial delivery service. Either party may, by notice, specify or change an address to which notices and communications shall thereafter be sent.
Neither party will be liable to the other for any delay or failure to perform any obligation under these ASTC (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the date in which these ASTC are entered into and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.
These ASTC will be interpreted and construed in accordance with the laws of England and Wales, without regard to conflict of law principles. The parties hereby consent to the exclusive jurisdiction and venue of the courts located in London, England for resolution of any disputes arising out or relating to these ASTC.
In the event any provision of these ASTC shall be determined to be invalid or unenforceable under law, all other provisions of these ASTC shall continue in full force and effect.
These ASTC, together with any SOW executed hereunder, contains the entire ASTC of the parties with respect to the subject matter of these ASTC and supersedes all previous communications, representations, understandings and ASTC, either oral or written between the parties with respect to said subject matter. Any additional or inconsistent terms on any purchase order, invoice, or any form of communication shall be null and void.
These ASTC and any SOW may be modified or waived only in a written instrument signed by both parties.
A waiver of any breach under these ASTC shall not constitute a waiver or any other breach or future breaches.