1. We are a Company (also referred to as “AudITech”, “We“, “Our” and “Us“) duly incorporated, validly existing, and in good standing under the laws of the state of Israel. We have full corporate power and authority to enter into this Agreement and the documents to be delivered hereunder, to carry out our obligations hereunder, and consummate the transactions contemplated hereby.
2. We are not providing legal advice under this Agreement, You (also referred to as the “Customer“, “Your“) should obtain such advice from your attorneys. We have been engaged by You to provide consulting services only (the “Services“). Accordingly, We will not provide an audit or attest opinion or other form of assurance, and We will not verify or audit any information provided to Us.
3. You are responsible for all management functions and decisions relating to this Agreement, including assessing the adequacy of the scope of the Services in addressing is needs, for the results achieved from using any Services or deliverables and to designate a competent member from your management to oversee the Services while establishing and maintaining internal controls. We are expecting that You will provide accurate and complete information, and reasonable assistance, and will perform this Agreement on that basis. We will not provide an opinion or other form of assurance with respect to your compliance with SOX, related rules, or your procedures.
Ownership and Use
4. We are the exclusive owner and 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 its Software, including any improvements, updates, upgrades, error-corrections or other modifications thereof. Except for the rights expressly granted to You under section 19, this Agreement does not give You any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of AudITech , its technology, its Software and Services and/or any documentation ancillary thereof.
5. Without derogating from the generality of the above, We 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 or derived or result from, or relate to, directly or indirectly, any feedback (written or oral) that You voluntarily choose to provide Us regarding the Services and/or the experience while using the Services. You irrevocably assign to Us any rights that You may have or acquire in such ideas, inventions and/or improvements, and You irrevocably waives any right it has or may have in the future to receive any payment, royalty or other consideration (of any kind) with respect to such ideas, inventions and/or improvements.
When You use Our Services
6. We are providing these Services solely for your use and benefit, We disclaim any contractual or other responsibility to others based upon this Services or upon any deliverables or advice We provide. You will review the deliverables before you use and adopt them as your own.
7. Because We accept no liability to third parties with respect to the Services and deliverables, You hereby agree to indemnify and hold Us harmless from and against any and all third party claims, suits and actions, and all associated damages, settlements, losses, liabilities, costs, and expenses, including without limitation reasonable attorney’s fees, arising from or relating to the Services and/or deliverables under this Agreement, except to the extent finally determined to have resulted from the gross negligence or intentional misconduct of AudITech relating to such Services and/or deliverables.
When You use Our Software
You shall not: (a) attempt to copy, modify, duplicate, imitate, reproduce, create derivative works from, frame, mirror, or download, all or any portion of the Services in any form or by any means; and/or (b) attempt to 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, or otherwise dispose, commercially exploit, or otherwise make the Services available to any third party; and/or (d) access or use all or any part of the Services in order to build or create a product or service which is similar to, or which competes with, the Services; and/or (e) attempt to obtain, or assist third parties in obtaining unauthorized access to the Services; and/or (f) 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 (g) use or launch any data mining or any similar data gathering and extraction tools, in connection with the Services (including by using software, scripts or automated agents and bots); and/or (h) use the Services in any manner that damages, disables, overburdens, or impairs the Services, or AudITech’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; (i) use the Services in any manner that is unlawful or prohibited or in violation of this Agreement and/or any applicable law or regulation; and/or (j) permit any third party to do any of the foregoing.
9. You will own all tangible written material delivered to you under this Agreement, except as follows: We will own our working papers and preexisting materials and know-how and any general skills, know-how, processes, or other intellectual property (including a non-Customer specific version of any deliverables) which may have been discovered or created by Us including as a result of our provision of the Services. You will have a nonexclusive, non-transferable license to use such materials and know-how included in the deliverables for your own internal use as part of such deliverables.
10. All rights, title and proprietary interest (including, without limitation, copyright and other intellectual property ownership) and all rights to use and disclose any work product developed (by the Software and by the Services), created or improved by Us for You in carrying out the Services under this Agreement (the “Work Products”), shall be wholly owned by You. You shall be entitled to use the Work Product at your discretion, including transferring the Work Product to external consultant etc.
11. We reserve the right, at our sole discretion without any liability to You, to disable, suspend or terminate your access to the Services, in the event of any breach by You or anyone on your behalf, of the terms of this Agreement.
12. You shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use, You shall promptly notify Us.
13. During this Agreement, the Parties shall comply with the applicable data protection legislation in relation to any personal data shared under this Agreement, the Parties will be subject to the terms specified in the “Data Protection Addendum” attached hereto.
14. All data relating to You accumulated by Us during the use of the Services shall belong exclusively to You (the “Your Data”). You hereby grant Us a limited, non-exclusive, non-transferable license to collect and use Your Data. Upon termination of the Services, We will terminate the collection and use of the data.
15. Without derogating from the above, You hereby acknowledge and agree that We may obtain and aggregate technical and other data about your use of the Services, excluding any personally identifiable concerning to You (“Aggregated Anonymous Data”), and We may use the Aggregated Anonymous Data to analyze, improve and operate the Services and otherwise for any business purposes, during and after the term of this Agreement.
16. We may retain the data in conformity with applicable laws to comply with our legal requirements or protect our legal interests, prevent fraud, resolve disputes, troubleshoot problems, assist with any investigations, and take other actions otherwise permitted by law. Beyond this retention period authorized by the applicable laws, the data will be deleted in accordance with our procedures.
17. You hereby waive any claim against Us in respect of the storage and management of the data, notably any claim with respect of data protection as applicable under the relevant law.
Software License Agreement
18. You shall cooperate with Us as per any reasonable request in order to allow the provision of the Services and the use of the Software, including the following:
18.1. To provide the needed integration to your systems and information;
18.2. To provide feedback on Our Services and Software;
18.3. To store your data which is related to the use of the Software in a dedicated storage and provide Us an access to such folder.
19. Subject to the terms of this Agreement, We hereby grant You, during the Term, solely for your internal business operations and for non-commercial purpose, and strictly in accordance with the terms and conditions of this Agreement and with any applicable law, a limited, non-commercial, non-perpetual, non-exclusive, non-transferable license to access and use the Services for the Term specified under this Agreement (the “License”).
Service Level Agreement
20. In addition to the above-mentioned License, We hereby agree to provide continuous technical support and maintenance support to You to maintain the good functioning of the Software. We hereby undertake that the Services will be provided with reasonable commercial skill and care for as long as this Agreement is in force.
21. Service schedule. Uptime: at list 85%.
22. Response time: up to 72 hours from contacting Us.
23. Any deadline that is affected by any of your default or factors beyond our reasonable control shall be extended by an amount of time equal to the length of such failure plus an additional period, if reasonably necessary, to compensate for such default or factors.
24. Support service. We shall provide support services with the goal of ensuring the continued provision of the services and the continued operation of the Software in accordance with the documentation and specifications and free of problems.
25. Exclusions. Unless otherwise authorized in writing by Us, We will not be required to correct any malfunctions caused by:
25.1. Features or services excluded from the Agreement;
25.2. Any non-conformance caused by accident, neglect, misuse, alteration, modification, or enhancement of the Software, including your failure and/or third party to follow our written installation, operation, or maintenance instructions and specifications given to the You by Us and by causes not reasonably under our control ;
25.3. The failure to provide an installation environment recommended for the Software;
25.4. Use of the Software for other than the specific purpose for which the Software is intended;
25.5. Your equipment, software or other technology and/or third-party equipment, software or other technology (other than third party equipment within our direct control);
25.6. Computer virus that has spread via your network or by unlawful ‘hacking’;
25.7. Factors outside of our reasonable control, including any force majeure event or internet access or related problems. “Force majeure” shall mean any causes beyond our reasonable control such as acts of God, acts of other parties, acts of civil or military authorities, fires, strikes, floods, wars, riots and other causes of a similar nature.
25.8. Our suspension and termination of your right to use the Services in accordance with the Agreement;
26. Mal Function. For each of your request for our support, You shall provide Us with a description (“Problem Report”) of the problem encountered and, where possible, will include a description of how to repeat the condition which brought about the problem. You will provide such diagnostic information as is available. A Problem Report shall include a suggested priority level which shall be mutually determined by the Parties.
27. We reserve the right to change or update our Software. We will provide notice, regarding such changes on our website (“Release Note”). During the use of the Services, the Customer should periodically check the website.
28. Extra Charges. Any additional engineering hour or any adjustment, that is not part of the Agreement, will bear extra charge of 200 USD per hour.
29. Communication. The communication between the Parties will be performed throw our system. You may contact our support center at email@example.com and/or at firstname.lastname@example.org.
Limitation of Liability
30. Except to the extent finally determined to have resulted from our gross negligence or intentional misconduct, our liability to pay damages for any losses incurred by the You as a result of a breach of this Agreement, negligence or other tort committed by Us, regardless of the theory of liability asserted, is limited to no more than the total amount of fees paid to Us under this Agreement for the Services rendered during the last full year (12 months) before such losses incurred. In addition, We will not be liable in any event for lost profits or any consequential, indirect, punitive, exemplary, or special damages. Also, We shall have no liability to You arising from or relating to any third-party hardware, software, information or materials selected or supplied by You.
31. Non-Disclosure agreement. During this Agreement, the Parties shall be subject to duty of confidentiality according to the terms specified in the “Non-Disclosure Agreement” attached hereto.
32. Commercially reasonable efforts. We shall not be responsible for any delay, cost increase or other consequences due to your failure to perform any of our obligations under this Agreement or otherwise due to factors beyond our reasonable control. We will use commercially reasonable efforts to mitigate such costs or expenses.
33. Legal proceedings. You accept and acknowledge that any legal proceedings arising from or in connection with the Services must be commenced within one year from the date You become aware or ought reasonably to have become aware of the facts which give rise to our alleged liability and in any event no later than seven years after any such cause of action accrued.
34. Non- Solicitation. Except as may be otherwise agreed in writing, during the Term of this agreement and for twelve (12) months thereafter, neither party shall solicit for employment or as an independent contractor any person employed then or within the preceding twelve (12) months by the other or any related party of the other, if such person was involved, directly or indirectly, in the performance of this Agreement. This provision shall not apply to prohibit the hiring of any person who was solicited solely through a general newspaper advertisement or other general solicitation that did not target such person directly.
35. Publications. We are hereby granted permission to include You (including your name and logo) as our customer, in any publication (including in our website, presentations, publications etc.), provided that at any time following the termination of the Agreement, You may require Us to cease the use in our name and logo.
36. Force Majeure. Neither party shall be liable for failures to perform any of its obligations hereunder due to causes beyond its reasonable control in the event of force majeure.
37. Obligations after termination. If We stop providing the Services or any part thereof, for any reason, during the Term, the Agreement will be terminated, and We will have no more obligations according to this Agreement, provided that We shall finalize the provision of the Service to You with respect to the audit of the then current audit year (of the Customer), and provided further that We shall notify You in writing as soon as possible about the date in which it stops providing the Services.
38. Governing law. This Agreement and any dispute relating to the Services will be governed by and construed, interpreted and enforced in accordance with the laws of Israel, without giving effect to any provisions relating to conflict of laws that would require the laws of another jurisdiction to apply. Any legal dispute related to this Agreement will be subject to the jurisdiction of the relevant courts in the Tel Aviv district. You agree and accept not to take legal action in relation to this Agreement (or any modification hereof or addition hereto) against any of our partners, managers, directors, team members, employees or affiliates personally.
39. Notices. All written notices or other written communications required under this Agreement shall be deemed properly given when provided to the Parties entitled thereto by personal delivery, by electronic mail, or by mail sent registered or certified mail, to the Parties (or to such address of a party designated in writing by such party to the others).