This Subscription Agreement is a legal agreement (this “Agreement”) between Secret Double Octopus Ltd. or its affiliates (the “Company”, “We”, “Us” or “Our”), on the one hand, and the Customer (as defined below) on the other hand, which governs the Customer’s access and use of the Service (as defined below). By accepting this Agreement, either by clicking a box indicating Your acceptance, and/or by purchasing the Products from the Company or from a Reseller (including the approval of Company’s or Reseller’s price proposal for the Products which references this Agreement), and/or by accessing and/or using and/or otherwise exploiting the Products, you hereby agree to be bound by the terms herein. Each of the Company and Customer may be referred to herein as a “Party” and collectively, the “Parties”.
You represent and warrant that You have the right and authority to enter into this Agreement. If You are entering into this Agreement on behalf of a Customer, You represent that You have the authority to bind such Customer, and its affiliates, to the extent applicable, to the terms and conditions of this Agreement, in which case the terms “You” or “Your” shall refer to such Customer and its affiliates, to the extent applicable.
Definitions and Interpretation
- The headings in this Agreement are for convenience only and shall not affect their interpretation.
- In this Agreement, unless the context otherwise requires, the following terms shall have the meanings ascribed to them below:
- “Content” means certain information which may include personal information regarding Customers and subscribers (such as general details of the Customer, usernames, email address, phone number etc.) for the purpose of providing and improving the Products;
- “Customer” means the business, legal entity or other organization that purchased the Products either directly from Company or through a Reseller, and is using the Products subject to and in accordance with the terms of this Agreement;
- “Customer Data” means any data, information, content or material that You (and/or your Users) submit and/or otherwise upload to the Service in the course of using the Service;
- “Documentation” means any documentation provided in connection with the Service, including specifications, paperwork, diagnostic, users, training, and other information related to the use of the Service.
- “Reseller” means an entity that is authorized by the Company to resell and license access to the Products to Customer. Reseller definition shall include any other services providers who are authorized by the Company (or by the reseller) to resell, license and manage access to the Products.
- “Service” means either the web-hosted, cloud-based or mobile applications provided by Company that are identified on an Approved Order Form or otherwise made available to Customer.
- “Software” means Company’s programs identified on an Approved Order Form or otherwise downloaded or installed by Customer, including without limitation mobile applications, computer software and any related features.
- “Products” means the Company’s Software and Service.
- “Approved Order Form” means any purchase order or quote signed by either the Company or the Reseller and the Customer, for the purchase of subscription to the Company’s Service and Software.
- “Subscription Term” means the period set forth in the applicable Approved Order Form, together with any subsequent renewal periods, unless terminated in accordance with the provisions of this Agreement.
- “User(s)” means individuals provisioned and authorized by Customer to access and use the Service in connection with Customer’s use of the Company’s products.
- Any reference to a day or days refers to business days – that is any day, which is not a weekend, public, or bank holiday in Israel.
- It is hereby clarified that the Products are purchased from a Reseller – the Reseller is the only point of contact with respect to every aspect relating to the purchase of the Products and their performance. Any connection with respect to Approved Order Form, including, without limitation, to consideration and payment terms, availability, changes, scope of SLA and/or any other matter will be solely referred to and executed by the Reseller. In such case, Company shall be considered as a contracting party to the Approved Order Form, and the Approved Order Form shall be considered as an agreement for the benefit of the Company.
Right to Use the Service
Subject to Customer’s full compliance with the provisions under this Agreement, or any purchase order form, the Company hereby grants You:
- a right to install, access and use the Software, in machine-readable form, solely for Your own internal business purposes (and not for resale, further distribution, or for providing outsourcing or service bureau services), during the Subscription Term. All rights not expressly granted to You under this Agreement are reserved by the Company. Upon expiration or termination of the Subscription Term, all rights granted to Customer (and/or any of its Users) herein shall immediately terminate and expire.
- a revocable, non-exclusive, non-transferable, non-sub-licensable, worldwide, limited right to access and use the Service, solely for Your own internal business purposes (and not for resale, further distribution, or for providing outsourcing or service bureau services), during the Subscription Term. All rights not expressly granted to You under this Agreement are reserved by Company. Upon expiration or termination of the Subscription Term, all rights granted to Customer (and/or any of its Users) herein shall immediately terminate and expire.
Restrictions of Use
- You are restricted to do, and You will not do (nor will You allow any of Your Users and any other third party to do) any of the followings:
- License, sublicense, sell, resell, transfer, assign, distribute, copy, outsource, or otherwise commercially exploit or make available to any third party the Service, the Product or the Content in any way;
- Modify or make derivative works based upon the Products, or the Content;
- Create Internet “links” to the Service, “frame”, or “mirror” any Content on any other server or wireless or Internet-based device;
- Send via the Service “spam” or otherwise duplicative or unsolicited messages in violation of applicable laws;
- Send or store via or on the Service infringing, obscene, threatening, libelous, or otherwise unlawful material, including material harmful to children;
- Send or store via or on the Service material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
- Interfere with or disrupt the integrity or performance of the Service or the data contained therein;
- Work around any technical limitations in the Service, or decompile, disassemble or otherwise reverse engineer Products or the Service or make any attempt to ascertain, derive or obtain the source code for any software including without limitation the Software which is used to provide the Service;
- Use the Products to take any action that infringes on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; or violates any applicable law, statute, ordinance or regulation (including those regarding export control); or
- Attempt to gain or gain unauthorized access to the Service or its related systems or networks
- Company shall be entitled to monitor Customer’s compliance with the terms of this Agreement, including but not limited the Users accessing the Service.
- The General Terms and Conditions available at https://doubleoctopus.com/terms-of-use/ shall apply in connection with the Service and the Products and any use of the Products, and Customer undertakes to comply with such terms, including without limitation all restrictions specified thereunder. In addition, by using the Service, Customer also accepts SDO’s Data Processing Agreement (and together with the General Terms and Conditions, the “Additional Terms”), which governs the Processing of Personal Data (as both terms are defined in the DPA) on Customer’s behalf, where such Personal Data is subject to the General Data Protection Regulation 2016/679 (the “GDPR”). A copy of the DPA appears on our website (https://doubleoctopus.com/dpa/). The Additional Terms are intended to be complementary to this Agreement, however in the event of any contradiction between the provisions of such Additional Terms and this Agreement, the provisions of the Additional Terms shall prevail.
The Company may enhance, change, discontinue or deprecate any Service at its discretion. Any material change to the Products (or discontinuation of the Service) will be communicated to You by either the Company or the Reseller. Company may develop, implement, and maintain updates, enhancements, improvements, fixes or solutions to problems or bugs in the Service (which, for the avoidance of doubt, may or may not include new features or functionality).
Company will provide support for the Products and Service in accordance with its Master Support Policy, as may be updated from time to time, as found at https://doubleoctopus.com/legal/msp/ .
Customer’s Representations & Warranties
By accessing and/or using the Products, You hereby warrant and represent as follows:
- You have the legal power and authority to enter into this Agreement;
- You will maintain the confidentiality of any non-public authentication credentials associated with Your use of the Service (including, without limitations, the Customer Data). You shall prevent unauthorized use of the Service, and You shall not give or make available means of accessing the Service to any unauthorized individuals. To the extent You have any suspicion or becoming aware of any unauthorized, or probable unauthorized, use the Products, You should notify the Company or the Reseller, as applicable, immediately.
- You shall not falsely identify yourself nor provide any false information to gain access to the Service;
- The Customer Data was duly obtained by You, from legitimate and lawful sources. You further represent that you are authorized to grant the Company the right to access and use Customer Data, and You obtained any and all consents and/or authorizations as required according to applicable laws, from any data subject to whom Customer Data pertains (including the User), for the receipt, collection, processing, transfer, storage and use of such Customer Data by the Company (and/or any third party acting on its behalf), for the purposes set forth under this Agreement.
- You are aware that for the purpose of providing the Service, Customer Data may be transferred to, and/or otherwise be stored or hosted in data centers located with Amazon, Google or Microsoft (“Third Parties Data Centers”) (in case of European Customers, data centers of such providers located in Europe). You further warrant and represent that the all required consents have been obtained with respect to transfer of the Customer Data to the Company (including any usage and/or storage and/or hosting in third parties’ data centers) and that such actions will not violate and/or otherwise infringe any third party rights (including, intellectual property rights, the right for privacy etc.
Without derogating from any other Subscriber’s obligations and responsibilities hereunder, it is agreed that Customer is solely responsible for:
- All activity occurring under Your account/s and shall abide by all applicable local, national and foreign laws, treaties and regulations in connection with Your (and Your User’s) use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You are responsible for ensuring that Your Users comply with the provisions of this Agreement;
- Procuring and maintaining its network connections and telecommunications links from Your systems to the Third Parties Data Centers, and for all problems, conditions, delays, delivery failures and for all other loss or damage arising from or relating to Your network connections or telecommunications links or caused by the Internet, and not by any fault of the Company;
- Adequate protection and for maintaining appropriate security on Your systems and equipment used in connection with the Service;
- Acts and omissions of Your Users as if they were Customer’s acts and omissions;
- The accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data;
- Complying with all legal and/or contractual requirements and obligations, including applicable privacy laws and regulations and your agreements with third parties who generate and/or process the Customer Data, relating to the collection, use, processing and transfer of Customer Data.
Company’s Representations & Warranties
Company warrants and represents as follows:
- Company has the legal power and authority to enter into this Agreement.
- Company (including any third party’s acting on its behalf) shall use the Customer Data for the sole purpose of providing the Services.
- Subject to the terms set forth in this Agreement, and under normal and usual use, the Service will perform substantially in accordance with the Documentation.
Protection of Customer Data
The Company will implement and maintain industry standard technical and organizational security measures to protect the Customer Data and to preserve the security and confidentiality of the Customer Data. The security measures are subject to technical progress and development, and may be updated or modified from time to time. However, no data transmission over the Internet can be guaranteed to be 100% secure, and Company provides no assurances that such security measures will withstand attempts to evade security mechanisms or that there will be no cracks, disablements or other circumvention of such security measures.
- In consideration for the licenses and Services provided hereunder, Customer will pay Company (or the Reseller where applicable) the fees as set forth in each Order Form at the times set forth in the Order Form on the terms of payment specified thereunder. Any amounts due and not paid by Customer within 15 days of the date on which they are due will be charged default interest at a rate of 1% per month, or the maximum rate permitted by applicable law, whichever is higher.
- The fees and charges under this Agreement do not include any sales, use, excise, transaction or other similar taxes levied against or upon the licensing of Service or the furnishing or receipt of Services pursuant to this Agreement. If such taxes are applicable, they will be separately stated on the invoice to Customer, and Customer will pay them. Customer will have no obligation to pay any taxes or fees that are (a) based upon Company’s net or gross income or gross receipts; (b) franchise taxes or other taxes based on Company’s corporate existence or status; or (c) personal property taxes. If applicable law requires Customer to withhold (or deduct at source) any taxes levied on payments to be made to Company pursuant to this Agreement, the prices listed in the Order Form will be adjusted upwards to compensate Company for such withholding or deduction.
Intellectual Property Rights
- The Company does not own or claim any ownership in and to any of the Customer Data. However, when you upload Customer Data to the Service, You hereby grant Company an irrevocable, royalty-free, non-exclusive, unlimited license to host, use, copy and process the Customer Data (and transfer it to third parties, all as detailed above), as necessary to provide the Service.
- Further, You hereby grant Us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Products any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Service (the “Feedback”). We may utilize the information concerning Your use of the Service to improve Our Service.
- The Company alone (and its licensors, where applicable) shall own any and all rights, title and interest, including all related intellectual property rights, in and to the Company technology, the Content and the Service. This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Service, the Company’s technology and the intellectual property rights in such, which are owned by the Company. The Company name, the Company’s logo and the product names associated with the Service are trademarks of the Company or third parties, and no right or license is granted to use them.
Term and Termination
- This Agreement will enter into force on the Effective Date, and shall continue until termination of the Subscription Term, unless terminated earlier by the Company, as set forth herein.
- Either Party may terminate this Agreement for cause (i) upon 14 days written notice to the other Party of a breach, if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In addition, the Company shall terminate this Agreement, forthwith, with immediate effect, in the event that Your Subscription Term was terminated, for any reason, or – if it is required in order to comply with applicable law or request of regulatory authority.
- Any breach of Your obligations or unauthorized use of the Company technology or Service will be construed as a material breach of this Agreement.
- In any event of termination of this Agreement, You agree and acknowledge that the Company has no obligation to retain the Customer Data, and may delete such Customer Data, if You have materially breached this Agreement. All rights and licenses granted to you herein shall be terminated and You will make no further use of the Service.
- Effects of termination: Upon termination or expiry of this Agreement at any time and for any reason, the Company may destroy any Customer Data in its (and/or third party’s) possession. Upon termination or expiry of this Agreement at any time and for any reason, Your right to access or use the Service ceases, You will discontinue any and all use of the Service and the Company shall have no obligation to maintain or forward any of Your Customer Data. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to the Company prior to the effective date of termination.
- The provisions of this Agreement which expressly or by their nature are required to survive termination of this Agreement shall survive the expiration or termination of this Agreement for whatever reason.
- You shall indemnify and hold the Company, harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data by the Company and/or by any third party’s acting on its behalf infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from Your (and/or Your Users’) breach of this Agreement.
- Indemnification obligations under this Agreement are subject to a final ruling of a competent court, provided that: the offended party (the “Indemnitee”) forthwith notify the other party (the “Indemnifier”) on any such claim, transferred the handling of the defense procedure to the Indemnifier, assisted Indemnifier as reasonably requested, and did not compromise in any such claim without the Indemnifier consent.
Disclaimer of Warranties
- THE SERVICE, PRODUCTS AND ALL CONTENT ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY COMPANY AND ITS LICENSORS.
- TO THE MAXIMUM EXTENT APPLICABLE BY LAW, THE COMPANY AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT.
- WITHOUT DEROGATING FROM THE GENERALITY OF THE ABOVE, COMPANY AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE TIMELY, UNINTERRUPTED, ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (C) THE SERVICE’S OUTPUT WILL BE ACCURATE OR RELIABLE OR CORRECT; (D) THE SERVICE OR THE DATA CENTERS THAT MAKE THE SERVICE AVAILABLE, AND/OR WHERE THE CUSTOMER DATA IS SOTRED AND/OR HOSTED SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
- THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. THE COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
- Company shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store or host any Customer Data. Without derogating from any other remedy Company is entitled to under this Agreement and/or applicable law, Company reserves the right to withhold, remove and/or discard Customer Data, including, due to a request of a regulatory authority, to the extent is calls for terrorism, coup, violates any applicable law, advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind, and You shall not have any claim and/or demand and/or complain against the Company in this regard.
Limitation of Liability
- Each Party will be legally liable for bodily injury and damages to tangible property.
- Notwithstanding anything to the contrary in this Agreement or applicable law, in no event shall (i) the Company, its affiliates and/or its vendors, distributors and subcontractors, their respective employees, officers and directors and/or anyone acting on their behalf be liable towards the Customer and/or any other third party for any incidental, special, indirect, exemplary or consequential damages, including without limitation, loss of income, downtime costs, loss of profits, revenue, business or business interruption, loss of goodwill, loss of data and/or undertaking the restoration of data or cost of substitute services, or other economic loss, arising out of this Agreement and/or the Products, even if the Company, its affiliates, subcontractors suppliers and/or anyone acting on its behalf has been advised of the possibility of such damages; and (ii) the aggregate liability to You or any third party for direct damages arising out of or in connection with the Agreement or the Products, exceed the lesser of $200,000 or the total amount of fees actually paid by You to the Company or to the Reseller, as applicable, in the 12 months period prior to the incident giving rise to such claim. The foregoing limitation of liabilities will apply regardless of the form or theory of the claim or action and whether any claim for recovery is based on theories of contract, warranty, tort (including negligence and strict liability) or otherwise.
- The parties understand and agree that, to the extent permitted by local law, the foregoing exclusions and limitations of liability represent the parties’ agreement as to allocation of risk between them in connection with their respective obligations under this Agreement.
- The remedies specified in this Agreement are Customer’s sole and exclusive remedies.
- Force Majeure. Other than monetary obligations, a delay or failure in the performance of any duties or obligations of either Party will not be considered a breach of this Agreement if such delay or failure is due to a labor dispute, fire, earthquake, flood or any other event beyond the reasonable control of a party, provided that such Party notifies the other Party of such matter and uses reasonable efforts to resume performance as soon as possible.
Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA (if Customer is domiciled in North America) or Israel (if Customer is domiciled in any other jurisdiction) (without giving effect to any applicable conflict of law provisions) and the competent courts located in New York, NY USA (if Customer is domiciled in North America) or the courts located in Tel Aviv – Jaffa (if Customer is domiciled in any other jurisdiction), shall have exclusive jurisdiction over any matters arising under this Agreement.
- Customer acknowledges that the Service is commercially valuable and proprietary to the Company.
- Customer, its employees, Users and/or anyone acting on its behalf, will hold the Confidential Information in confidence and shall not, directly or indirectly, copy, disclose or otherwise transfer any of the Confidential Information (whether in written, oral, electronic or other form), which is obtained from the Company or otherwise prepared or discovered in the performance of this Agreement. As used herein, the term “Confidential Information” mean all information or data concerning or related to Company and/or the Service, processes, or general business operations, which, if not otherwise described above, is of such a nature that a reasonable person would understand it to be confidential or proprietary given the nature of the information and the circumstances of disclosure.
- The Company will hold in confidence and shall not, directly or indirectly, disclose any information submitted by You to the Service. For purposes of this Agreement, Customer Data shall be deemed Confidential Information. Notwithstanding the foregoing, Your Confidential information shall not include information that (a) was already known to the Company at the time of disclosure by You; (b) was or is obtained by The Company by a third party not known by the Company to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement; or (d) was or is independently developed by the Company or anyone on its behalf without use of Customer’s confidential information.
Customer agrees that the Company may display Customer’s name and logo on Company’s website, and as a part of a general list of customers for use and reference in corporate, promotional and marketing literature. Customer further authorizes the Company to refer to it prospective customers or analysts in order to verify the Customer’s status as Company’s customer.
- The Company reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute Your consent to such changes.
- Neither Party will assume or create any obligations or responsibilities express or implied, on behalf of or in the name of the other Party, or bind the other Party in any manner or thing whatsoever without such Party’s prior written consent. No agent, employee, representative or subcontractor of the Company will be or be deemed to be the employee, agent, representative or subcontractor of Customer.
- This Agreement constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning such subject matter.
- This Agreement may not be assigned by You without the prior written approval of the Company, but may be assigned without Your consent by the Company to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of You that results or would result in a direct competitor of the Company directly or indirectly owning or controlling 50% or more of you shall entitle the Company to terminate this Agreement for cause immediately upon written notice.
- The waiver of any default or breach of the Agreement shall not constitute a waiver of any other or subsequent default or breach.
- In the event any provision of the Agreement is held to be invalid, illegal or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement shall remain in full force and effect, but such provision shall be deemed modified to the extent necessary to render such term or provision enforceable, preserving to the fullest extent permissible the intent and agreements of the parties herein set forth.