These Customer Terms and Conditions (the “Terms“) apply to, and govern:
- Access to, and use of, the Services (defined below); and
- Any Orders (defined below). Each Order shall be deemed incorporated into these Terms by reference.
These Terms are hereby incorporated by reference into, and made a part of, such Order. These Terms and the Order are collectively referred to as this “Agreement“. The Agreement constitutes a binding agreement between Sherloqdata Ltd. (or, if applicable, the other Sherloq entity specified in the Order) (“Sherloq“, “we“, “us“, or “our“) and the customer accessing the Service or otherwise specified in the Order (“Customer” “you“, or “your“). Sherloq and Customer may be collectively referred to herein as the “Parties“, and each individually as a “Party“.
An individual entering into this Agreement on behalf of the Customer, represents that he/she has the right, authority and capacity to act on behalf of the Customer and to bind the Customer to this Agreement.
“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” means the possession, directly or indirectly, of the power to direct, or cause the direction of, the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
“Content” means any text, data, information, reports, files, images, graphics, software code, or other content.
“Customer Content” means any Content submitted or uploaded to, or transmitted through, the Service, or otherwise provided or made available to Sherloq, by or on behalf of Customer.
“Order” means any order form, sales order, quote, or other ordering functionality for the purchase of Services, Professional Services and/or Evaluation Product, which is either:
(a) executed offline by the Parties; or
(b) submitted by you via the Site.
“Professional Services” means Service-related installation, deployment, configuration, customization, integration, training, or other professional services.
“Service” means our integrated development environment software-as-a-service, known as Sherloq, and associated application programming interfaces (APIs), software, tools, and Content that we make available to you in connection therewith. For the avoidance of doubt, the term Services shall include, without limitation, the Paid Sherloq Service (as defined below).
“Service Content” means any Content (excluding Customer Content) appearing on or in, or otherwise provided or made available via, the Service. Unless the context requires otherwise, references herein to the “Service” shall be deemed to include the Service Content.
“Site” means the website https://sherloqdata.io/, together with its subdomains.
“Support Services” means any Service-related technical support and maintenance services specified in the Order (and, if no such services are specified in an Order, then “Support Services” shall mean Sherloq’s standard technical support services made available via its website).
“Usage Statistics” means any non-Customer-identifying information, data, reporting, analyses, and/or intelligence of or about the operation of the Service, and/or your use of the Service (such as metadata, aggregated data, and analytics).
“User” means an employee or service provider of Customer (or its Affiliates) that Customer authorizes to access and use the Service on Customer’s behalf.
- PILOTS AND EVALUATION PRODUCTS
2.1 Pilots. If agreed in the Order, Customer may be entitled to conduct an evaluation, ‘proof-of-concept’, or pilot of the Service (an “Pilot“). A Pilot is limited to whatever duration, features, and functionalities Sherloq elects in its sole discretion (or that is otherwise specified in the Order), and, unless agreed otherwise in the Order, Sherloq reserves the right to add and remove any features and functionalities, as well as terminate a Pilot, at any time, with or without notice.
2.2 Evaluation Products. From time to time, Sherloq may permit Customer to try certain Service features or functionalities (whether new or existing) at no charge for a free trial or evaluation period (each, an “Evaluation Product“). Evaluation Products may be designated or identified as beta, pilot, evaluation, trial, or the like. Unless configured otherwise by Sherloq, or agreed otherwise (for example, in an Order), the default evaluation period for an Evaluation Product (the “Evaluation Period“) is thirty (30) days. However, Sherloq reserves the right to terminate an Evaluation Period at any time, with or without notice.
2.3 General. For the avoidance of doubt, the restrictions set forth in Section 3.3 (Usage Restrictions) shall also apply to Evaluation Products and Pilots. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, EVALUATION PRODUCTS AND PILOTS ARE PROVIDED FOR CUSTOMER’S INTERNAL EVALUATION ONLY (AND NOT FOR PRODUCTION USE), AND SHERLOQ SHALL HAVE NO OBLIGATION OR LIABILITY OF ANY KIND WHATSOEVER TOWARDS CUSTOMER FOR EVALUATION PRODUCTS OR PILOTS. TO THE EXTENT THAT APPLICABLE LAW DOES NOT PERMIT THE EXCLUSION OF SHERLOQ’S LIABILITY TO CUSTOMER FOR AN EVALUATION PRODUCT OR PILOT, SHERLOQ’S AGGREGATE LIABILITY TO CUSTOMER IN RESPECT OF AN EVALUATION PRODUCT AND/OR PILOT SHALL NOT EXCEED TEN US DOLLARS (USD$10).
- SUBSCRIPTION AND SERVICES
3.1 Setup and Account. Sherloq will provide whatever Service set-up services may be specified in the Order, and Customer shall fully cooperate with Sherloq in such efforts (such as by providing Sherloq with all information, access and other resources necessary therefor). Thereafter, in order to access the Service, Customer is required to set up an administrative account, by submitting the information requested in the applicable Service interface (“Account“), and each User may need to set up a user account (each, a “User Account“, and references herein to the “Account” shall be deemed to include all such User Accounts if applicable). Customer warrants that all information submitted during the registration process is, and will thereafter remain, complete and accurate. Customer shall be responsible and liable for all activities that occur under or in the Account. Customer will require that all Users keep user ID and password information strictly confidential and not share such information with any unauthorized person.
3.2 Subscription. Subject to the terms and conditions of this Agreement (including without limitation your payment of all applicable Fees (if any)), Sherloq grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right and license, during the Subscription Term (defined below), to internally access and use the Service for Customer’s end use (the “Subscription“).
For the avoidance of doubt: (x) the Subscription is subject to whatever usage or consumption limitations and parameters (for example, number of users, number of API calls, number of SQL queries, available features and functionalities, etc.) may be specified in the Order (the “Subscription Scope“), and you shall not use any technical or other means within, or external to, the Service to exceed or circumvent the Subscription Scope, and (y) the Service is only licensed or provided on a subscription basis (and is not sold) hereunder.
3.3 Usage Restrictions. As a condition to (and except as expressly permitted by) the Subscription, Customer shall not do (or permit or encourage to be done) any of the following Subscription restrictions (in whole or in part): (i) copy, create public Internet “links” to, “frame”, or “mirror” the Service; (ii) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Service or Service Content to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (iii) publicly perform, display or communicate the Service; (iv) modify, adapt, translate, or create a derivative work of the Service; (v) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code, non-literal aspects, or other underlying components (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Service; (vi) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Service; (vii) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Service; (viii) use the Service to develop any service or product that is the same as (or substantially similar to), or otherwise competitive with, the Service; (ix) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Service, or use any robot, spider, scraper, harvesting, or any other automated means to access the Service; (x) employ any hardware, software, device, or technique to pool connections or reduce the number of users, API Calls, or endpoints that directly access or use the Service (sometimes referred to as ‘virtualisation’, ‘multiplexing’ or ‘pooling’); (xi) forge or manipulate identifiers in order to disguise the origin of any Customer Content; (xii) take any action that imposes or may impose (as determined in Sherloq’s reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Service, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure; (xiii) use the Service in connection with any stress test, penetration test, or vulnerability scanning, or otherwise publish or disclose (without Sherloq’s prior express written approval) any of the results of such activities or other performance data of the Service; (xiv) use the Service to circumvent the security of another person’s network/information, develop malware, unauthorized surreptitious surveillance, data modification, data exfiltration, data ransom or data destruction; or (xv) use the Service to violate the law or any third party rights.
3.4 Delivery and Hosting. The Service is made available to you electronically via the cloud. Any software (or other goods) delivered to you, shall be deemed accepted upon delivery. The hosting of the Service (and related processing) may be provided by a third party cloud hosting provider selected by Sherloq (“Hosting Provider“).
3.5 Features and Functionalities. We may, from time to time, modify and replace the features and functionalities (but not material functionalities to which you are entitled under the Order, unless it improves the material functionality), as well as any user interface, of the Service. Some features and functionalities may in any event be restricted by geography or otherwise, in order for us to comply with applicable law or commitments to third parties. You acknowledge and agree that your purchase hereunder is not contingent on the delivery of any future functionality or feature, or dependent on any oral or written statements made by or on behalf of Sherloq regarding future functionalities or features.
3.6 Monitoring. You agree that we and our Affiliates may monitor any Service from our own systems to ensure quality, improve our products and services, and ensure compliance with this Agreement. You will not interfere with this monitoring and we may use any technical means to overcome such interference.
3.7 Support. Subject to Customer remaining current on payment of all Fees hereunder (if any), Sherloq and/or its Affiliate shall provide Customer with Support Services.
3.8 Paid Sherloq Services. Your access to and use of the Services may be provided by us free-of-charge. We may, however, at any time and without prior notice, start to charge for the Services or parts thereof (each, a “Paid Sherloq Service“). For example, we may start to charge for certain Services features or functionalities, or for technical support services. If we do so, then:
(a) You will not be charged for any use of the Services unless you first agree to such charges, but please be aware that any failure to pay applicable charges may result in you not having access to some or all of the Services;
(b) Paid Sherloq Services will not be available to you unless and until you pay the applicable fees and charges (collectively, “Fees“); and
(c) Section 5 (Payments) shall apply to your payments for Paid Sherloq Services.
3.9 Professional Services. Any Professional Services mutually agreed to between the Parties shall be set out in sequential Professional Services Statements of Work executed by the Parties and referencing this Agreement (each, a “Professional Services SOW“). Professional Services shall be charged in accordance with such Professional Services SOW. Each Professional Services SOW shall be deemed incorporated into this Agreement by reference. The Professional Services will be performed by Sherloq and/or its Affiliates.
4.1 Ownership and License. As between you and Sherloq, you are the exclusive owner of your Customer Content. You hereby grant to Sherloq and its Affiliates a worldwide, non-exclusive, royalty-free, paid-up, sublicensable (to our data subprocessors, Hosting Providers, as well as to our third party service providers engaged by us in the provision of Services), irrevocable right and license to copy, process, create derivative works of, modify, adapt, and otherwise use your Customer Content (in any media, now known or hereafter developed): (A) during the Term of this Agreement, for the purpose of performing under this Agreement (for example, using your datasets in order to train custom models); and/or (B) on a perpetual basis, for the purpose of generating Usage Statistics, as well as generally enhancing the Service (such as developing new features and functionalities).
4.2 Responsibility. You are, and shall always remain, solely responsible and liable for your Customer Content, including without limitation for its accuracy, legality, and quality, and for ensuring your Customer Content does not violate any applicable laws or third party rights. Without limiting the generality of the foregoing:
- (a) you will ensure that you only provide or make available Customer Content containing personal data or other personally identifiable information if strictly required for you to use the Service; and
- (b) you will ensure, and hereby represent and warrant, that: (A) no processing of Customer Content under this Agreement (whether by us, our Affiliates, or if applicable the Hosting Provider) will violate any law, proprietary right, or privacy right; (B) you have obtained and will maintain all required consents and licenses, and will maintain all ongoing legal bases under relevant privacy laws (if applicable), necessary to grant us the licenses herein, and to provide, make available, and otherwise expose Customer Content to us, our Affiliates, and the Hosting Provider (if applicable); (C) no Customer Content will be defamatory, pornographic, violent, harassing, hateful, or racially/ethnically offensive; and (D) no Customer Content shall include, or link to, any Sensitive Data. “Sensitive Data” means any (i) categories of data enumerated in Article 9(1) of the European Union’s General Data Protection Regulation (Regulation 2016/679, aka the GDPR) or any successor law; (ii) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS“); or (iii) any data similar to the foregoing that is protected under foreign or domestic laws.
4.3 Data Location. Customer Content may be hosted and processed by Sherloq and its respective third party service providers in Israel, the United States, the European Economic Area (EEA), the United Kingdom, and other locations around the world.
4.4 Data Storage. The Service is not intended to, and will not, operate as a data storage or archiving product or service, and you agree not to rely on the Service for the storage of any Customer Content whatsoever. Customer is solely responsible and liable for the maintenance and backup of all Customer Content.
This Section (Payments) applies to Paid Sherloq Services.
- Fees. The Fees you pay for a Paid Sherloq Service is according to the pricing displayed on the Site, Order or Services checkout page when you purchase the Paid Sherloq Service. Notwithstanding the preceding sentence, while we try and ensure that all prices on the Site, Order or Services are accurate, errors may occur. If we discover an error in the price of a Paid Sherloq Service you have purchased, we will inform you of this as soon as possible and give you the option of reconfirming your purchase at the correct price or cancelling it. If we are unable to contact you, we will treat the purchase as cancelled. If we cancel the purchase in such cases, and you have already paid for the Paid Sherloq Service, you will receive a refund or credit in the amount of the price you paid. Except as expressly stated otherwise in this Agreement, Fees are non-refundable, non-cancellable, and without right of setoff.
- Payment Terms. Unless expressly stated otherwise in the Order or these Terms: (a) all Fees are stated, and are to be paid, in US Dollars; (b) all Fees are shall be paid in advance at the commencement of each billing cycle (except for Fees for overages, which are charged in arrears); (c) all payments and payment obligations under this Agreement are non-refundable, and are without any right of set-off or cancellation; and (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of the rate of one and a half percent (1.5%) per month or the highest amount permitted by applicable Law. If we do not collect a credit card, debit card, or other payment method from you at the time of purchase (a “Payment Method“), we will invoice you for the Fees, and we shall be entitled to do so via email to the applicable Customer contact email address specified in the Order and/or via a functionality of the Service. If you believe that we have invoiced you incorrectly, you must contact us no later than ten (10) days after receiving the invoice in which the alleged error appeared; otherwise you shall be deemed to have waived all claims in connection with the applicable invoice and payment.
- Taxes. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon our net income. In the event that you are required by any applicable law to withhold or deduct taxes for any payment under this Agreement, then the amounts due to us shall be increased by the amount necessary so that we receive and retain, free from liability for any deduction or withholding, an amount equal to the amount it would have received had you not made any such withholding or deduction.
- Payment Processing. You represent and warrant that all payment and billing information provided is (and will remain) complete and accurate, and you have the right to use, and have obtained all necessary consents to enable, the necessary Payment Method, and make your purchase with such Payment Method. If applicable to the Payment Method, payment of Fees may be processed through a third-party payment processing service (which will receive and process your billing information), and additional terms may apply to such payments. You authorizes us (and/or our designee) to: (a) request and collect payment (and to otherwise take other billing actions, such as refunds) from you on a recurring basis; and (b) make any inquiries we deem necessary, from time to time, to validate your designated Payment Method or financial information, in order to ensure timely payment of Fees (including, but not limited to, for the purpose of receiving updated payment details from your payment, credit card, or banking account provider – such as, updated expiry date or card number). You acknowledge and agree that we are not responsible for how any third-party payment processor transmits, stores, uses, or shares your Payment Method information.
- Reporting. We may issue Subscription- and Fee-related reporting and billing notices via email to the applicable Customer contact email address specified in the Order or in the Services checkout page, as well as via a functionality of the Service.
- SHERLOQ OWNERSHIP
We (and/or our licensors and suppliers, as applicable) are, and shall be, the sole and exclusive owner of all right, title and interest (including without limitation all intellectual property rights) in and to: (a) the Service (and all underlying intellectual property); (b) the Service Content; (c) our Confidential Information; (d) the Sherloq Materials (as defined below); (e) any suggestions, ideas, corrections, enhancement requests, or other feedback for or about the Service (collectively, “Feedback“); (f) Usage Statistics; and (g) any improvements, derivative works, enhancements, and/or modifications of/to any of the foregoing, in each case regardless of inventorship or authorship. You shall procure the assignment (and hereby irrevocably assign) to us (and/or our designee(s)) the ownership rights set forth in this Section 6 (Sherloq Ownership), and undertake to do all things reasonably requested by us (including without limitation executing, filing, and delivering instruments of assignment and recordation), at our reasonable expense, to perfect such ownership rights.
- General. Either Party may disclose or otherwise make available certain confidential information (“Confidential Information“) under this Agreement and shall, in doing so, be referred to as the “Discloser” hereunder. The other Party when receiving Confidential Information shall be referred to as the “Recipient“. For the avoidance of doubt, disclosures by, to, or between the Parties’ respective Affiliates shall also be deemed Confidential Information and be subject to this Agreement.
- Exclusions. Confidential Information shall not include any information that: (a) is lawfully known by the Recipient at the time of disclosure, on a non-confidential basis; (b) is or becomes, through no fault of the Recipient, available to the general public; (c) is independently developed by the Recipient without use or reference to Confidential Information; or (d) is rightfully disclosed to Recipient on a non-confidential basis by a third party.
- Safeguarding. The Recipient shall not use the Confidential Information for any purpose, except to perform under this Agreement and/or as otherwise expressly permitted by this Agreement. To maintain the confidentiality of the Discloser’s Confidential Information, Recipient agrees to use the same degree of care it employs for the protection of its own Confidential Information (and in any event, a reasonable degree of care), and to procure that all such measures and safeguards are taken by its Representatives (defined below).
- Non-Disclosure. Recipient shall not disclose or make available any Confidential Information to any person other than to its Representatives (defined below) who have a strict need to know the Confidential Information for the purpose of Recipient performing its obligations under this Agreement, and who are bound to the Recipient by an agreement of confidentiality that contains substantially the same confidentiality obligations contained in this Agreement (or by comparable fiduciary or professional duties of confidentiality). Recipient shall remain primarily responsible and liable for its Representatives’ acts and omissions in respect of the Confidential Information, as fully as if they were the acts and omissions of Recipient itself. “Representatives” means Recipient’s and/or its Affiliates’ directors, officers, employees, professional advisors (including, without limitation, attorneys, financiers, and accountants), contractors, and agents.
- Compelled Disclosure. Recipient may disclose Confidential Information to the minimum extent required by a Legal Requirement; provided, however, that before Recipient does so disclose it shall, to the extent legally permitted, use reasonable endeavors to give the Discloser as much notice of such disclosure as possible, and reasonably assist Discloser in seeking a protective order or other appropriate remedy. “Legal Requirement” means (a) an order of any court of competent jurisdiction, any regulatory, judicial, governmental or similar body, or any taxation authority of competent jurisdiction, (b) the rules of any listing authority or stock exchange on which its shares or those of any of its Affiliates are listed or traded, and/or (c) the laws or regulations of any country to which its affairs or those of any of its Affiliates are subject.
- Return/Destruction of Confidential Information. Promptly following written request by Discloser at any time (including within a reasonable time following termination of this Agreement), Recipient shall, as reasonably directed, return, destroy, and/or permanently delete all Confidential Information in its possession or control, and shall thereafter, upon written request, have one of its officers certify in a signed writing compliance with the foregoing. Notwithstanding the foregoing, the Recipient may retain an archival copy of Confidential Information solely to the extent that: (a) such archival copy is contained in electronic files as part of the Recipient’s regular data backup or archiving procedures, and/or (b) such retention is required by any Legal Requirement; and in each of the foregoing cases under paragraphs (a) and (b), provided further that the Recipient shall refrain from accessing or using such Confidential Information, and shall treat such Confidential Information at all times in accordance with the provisions of this Agreement and shall refrain from any use thereof.
- TERM AND TERMINATION
- Term. This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue for the duration of the Subscription Term (the “Term“). “Effective Date” means the date the Order is executed by the Parties, unless the Order itself specifies a different start/effective date; provided, however, that if the date on which you first accessed or used the Services was prior to Order execution, then the Effective Date shall be deemed to be such earlier date.
- Renewals. Unless specified otherwise in the Order, upon expiration of the Subscription term specified in the Order (the “Initial Subscription Term“), the Order and Subscription shall automatically renew for successive renewal terms of equal length (each a “Renewal Subscription Term“, and together with the Initial Subscription Term, the “Subscription Term“), unless either Party notifies the other Party in writing that it chooses not to renew (“Non-Renewal Notice“). Unless the Order states otherwise, the Non-Renewal Notice must be given at least thirty (30) days prior to the end of the then-current Subscription Term. At the commencement of each Renewal Subscription Term, we shall be entitled to charge your Payment Method (or, if applicable, invoice you) for the applicable Fees therefor.
- Termination. This Agreement may be terminated as follows:
- (a) In accordance with any termination rights specified in the Order;
- (b) Either Party may terminate this Agreement for cause upon written notice if the other Party commits a material breach under this Agreement, and fails to cure such breach within thirty (30) days after receiving written notice from the other Party alleging the breach. The foregoing 30-day cure period shall: (i) not be required if the breach is not curable; and (ii) be reduced to ten (10) days if the material breach in question is your non-payment of any Fees;
- (c) Either Party may terminate this Agreement upon written notice to the other Party upon the occurrence of any of the following events in respect of such other Party: (i) a receiver is appointed for the other Party or its property, which appointment is not dismissed within sixty (60) days; (ii) the other Party makes a general assignment for the benefit of its creditors; (iii) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (iv) the other Party is liquidating, dissolving or ceasing normal business operations; and/or
- (d) We may terminate this Agreement for convenience upon thirty (30) days’ prior written notice to you. In case of such termination for convenience by us, you shall be entitled to receive a pro-rated refund of any pre-paid and unutilized Fees (if any) under this Agreement based on the remaining period of the then-current Subscription Term.
- Suspension. We reserves the right to temporarily suspend provision of the Service: (A) immediately if you are overdue on a payment; (B) if we deem such suspension necessary as a result of your breach of the Subscription (such as a breach under Section 3 (Usage Restrictions)) or your breach under Section 4 (Customer Content); (c) if we reasonably determine suspension is necessary to avoid material harm to us, to our other customers, or to the Service (for example, if the Service’s cloud infrastructure is experiencing denial of service attacks or other attacks or disruptions outside of our control); and/or (d) as required by applicable law or at the request of governmental entities.
- Effect of Termination; Survival. Upon termination of this Agreement for any reason: (A) the Subscription shall automatically terminate; (B) you shall cease all access and use of the Service; and (c) you shall pay any outstanding Fees and other charges that accrued as of termination, which shall become immediately due and payable, and, if necessary we shall be entitled to charge your Payment Method (or, if applicable, invoice you) therefor. You acknowledge that following termination you may no longer have any further access to any Customer Content, and that we may (but shall not be obligated to) delete any Customer Content as may have been stored by us at any time. Any right, obligation or provision that is expressly stated to survive or that ought by its nature to survive termination of this Agreement, shall survive (including without limitation Sections 6 (Sherloq Ownership) through 11 (Miscellaneous)). Termination shall not affect any rights and obligations accrued as of the effective date of termination.
- DISCLAIMER OF WARRANTIES
THE SERVICE, SERVICE CONTENT, AS WELL AS ANY OTHER GOODS AND SERVICES PROVIDED OR MADE AVAILABLE BY OR ON BEHALF OF THE SHERLOQ HEREUNDER (COLLECTIVELY, THE “SHERLOQ MATERIALS“) ARE PROVIDED AND MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL DEFECTS, AND ALL EXPRESS, IMPLIED AND STATUTORY CONDITIONS AND WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION, NON-INFRINGEMENT, OR QUALITY OF SERVICE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE) ARE HEREBY DISCLAIMED BY SHERLOQ AND ITS LICENSORS.
SHERLOQ DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION: (A) REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, TIMELINESS, COMPLETENESS, OR QUALITY OF SHERLOQ MATERIALS; (B) THAT CUSTOMER’S USE OF SHERLOQ MATERIALS WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; (C) REGARDING THE OPERATION OF ANY CELLULAR NETWORKS, THE PASSING OR TRANSMISSION OF DATA VIA ANY NETWORKS OR THE CLOUD, OR ANY OTHER CELLULAR OR DATA CONNECTIVITY PROBLEMS; (D) REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY LAWS, OR OTHER GOVERNMENT OR INDUSTRY RULES OR STANDARDS; OR (E) REGARDING THE INTER-OPERABILITY OF YOUR SYSTEMS OR RESOURCES WITH THE SERVICE. SHERLOQ WILL NOT BE LIABLE OR OBLIGATED IN RESPECT OF DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO HOSTING PROVIDERS OR PUBLIC NETWORKS.
- LIMITATION OF LIABILITY
- EXCEPT FOR CUSTOMER’S BREACH OF THE SUBSCRIPTION (INCLUDING WITHOUT LIMITATION A BREACH UNDER SECTION 3 (USAGE RESTRICTIONS)), AND/OR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR CUSTOMER’S CONTENT OR CUSTOMER’S VIOLATION OF APPLICABLE LAWS OR THIRD PARTY RIGHTS, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, OR LICENSORS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR: (A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES; (B) ANY LOSS OF PROFITS, BUSINESS, OPPORTUNITY, REVENUE, CONTRACTS, ANTICIPATED SAVINGS, OR WASTED EXPENDITURE; (C) ANY LOSS OF, OR DAMAGE OR INTERRUPTION TO, DATA, NETWORKS, INFORMATION SYSTEMS, REPUTATION, OR GOODWILL; AND/OR (D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
- THE AGGREGATE LIABILITY OF SHERLOQ UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO SHERLOQ UNDER THIS AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY (OR, IF NO FEES APPLY, ONE HUNDRED US DOLLARS (USD$100)).
- THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), STRICT LIABILITY, MISREPRESENTATION, RESTITUTION, OR OTHERWISE.
- By Sherloq. In the event a third party makes or institutes any claim, action, or proceeding against Customer alleging that Customer’s use of the Services in accordance with this Agreement infringes such third party’s valid copyright or patent (an “Infringement Claim”), Sherloq shall, as its sole liability and Customer’s sole remedy for the Infringement Claim:
- at its own expense, defend Customer against the Infringement Claim; and
- indemnify and hold harmless Customer for any amount finally awarded against or imposed upon Customer (or otherwise agreed in settlement) under the Infringement Claim.
- By Customer. In the event a third party makes or institutes any claim, action, or proceeding against Sherloq or its Affiliates (each a “Sherloq Indemnitee”), which arises from Customer’s Content or Customer’s breach of any provision of this Agreement (each a “Sherloq Claim”), Customer:
- at its own expense, defend Sherloq Indemnitee against the Sherloq Claim; and
- indemnify and hold harmless Sherloq Indemnitee for any amount finally awarded against or imposed upon Sherloq Indemnitee (or otherwise agreed in settlement) under the Sherloq Claim.
- Procedure. As a condition to the above indemnities, the Party seeking indemnification (“Indemnitee”) shall: (a) provide the indemnifying Party with prompt written notice of the Infringement Claim or Sherloq Claim, as the case may be (“Claim”); (B) cede to the indemnifying Party full control of the defense and settlement of the Claim (except that any non-monetary obligation imposed on the Indemnitee under a settlement shall require Indemnitee’s prior written consent, not to be unreasonably withheld, conditioned or delayed); (C) provide the indemnifying Party (at its expense) with all information and assistance reasonably requested by it; and (D) not to admit any liability under (or otherwise compromise) the Claim. Any participation by the Indemnitee in the defense of the Claim shall be at its own cost and expense.
- Entire Agreement. This Agreement (and its annexes, if any) represents the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the Parties with respect to such subject matter. In entering into this Agreement, neither Party is relying on any representation or statement not expressly specified in this Agreement. Without limiting the generality of the foregoing, this Agreement supersedes the following, each of which shall be deemed rejected, void and of no effect: (i) any shrink-wrap, click-wrap, or similar terms and conditions that accompany, or are included within, the Service, even if use of the Service requires an affirmative “acceptance” thereof (unless you are accepting these Terms as part of your initial access to the Service); and (ii) any terms or conditions (whether printed, hyperlinked, or otherwise) in any purchase order or other standardized business forms, which purport to supersede, modify, or supplement this Agreement. The section and subsection headings used in this Agreement are for convenience of reading only, and shall not be used or relief upon to interpret this Agreement. This Agreement may be executed in any number of counterparts (including digitally, electronically scanned and e-mailed PDF copies, and any similarly signed and electronically or digitally transmitted copies) each of which will be considered an original, but all of which together will constitute one and the same instrument.
- Amendment. This Agreement may only be modified or supplemented by a written instrument (referencing this Agreement) duly signed by each Party.
- Assignment. This Agreement may not be assigned by you, in whole or in part, without our prior express written consent. We may assign this Agreement, in whole or in part, without restriction or obligation. Furthermore, any of our obligations hereunder may be performed (in whole or in part), and any of our rights (including invoice and payment rights) or remedies hereunder may be exercised (in whole or in part), by our Affiliates. Any prohibited assignment will be null and void. Subject to the provisions of this Section (Assignment), this Agreement will bind and inure to the benefit of each Party and its respective successors and assigns. Sherloq may subcontract services (such as Support Services and Professional Services), in whole or in part, to a third party contractor, and Sherloq shall remain primarily responsible for such contractor’s performance of such services.
- Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Israel without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed. Any claim, dispute or controversy between the Parties will be subject to the exclusive jurisdiction and venue of the courts located in Tel Aviv, Israel and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, each Party may seek equitable relief in any court of competent jurisdiction. EXCEPT TO SEEK EQUITABLE RELIEF, PAYMENT OF FEES, OR TO OTHERWISE PROTECT OR ENFORCE A PARTY’S INTELLECTUAL PROPERTY RIGHTS, NO ACTION, REGARDLESS OF FORM, UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE DATE ON WHICH THE CORRESPONDING LIABILITY AROSE. Any claims or damages that you may have against us shall only be enforceable against us, and not any other entity or our officers, directors, representatives, employees, or agents.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such provision will be ineffective solely as to such jurisdiction, and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
- Publicity. We may use your name and logo on the Site and in our promotional materials to state that you are a customer of the Service. Moreover: (a) Customer agrees to provide a quote from one of Customer’s executives about the Service, for publication on the Site and marketing materials; and (b) Customer agrees to reasonably cooperate with Sherloq in the creation and promotion of a case-study to be published on Sherloq’s website and marketing materials. For the avoidance of doubt, use and publication of such quotes and case-study shall be at Sherloq’s sole discretion.
- Privacy. We may collect certain data and information about you in connection with your access and use of the Services, as well as your interaction with any third party providers.
- Waiver and Remedies. No failure or delay on the part of either Party in exercising any right or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof, or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing, duly signed by the waiving Party, and will be valid only in the specific instance in which given. Except as may be expressly provided otherwise in this Agreement, no right or remedy conferred upon or reserved by either Party under this Agreement is intended to be, or will be deemed, exclusive of any other right or remedy under this Agreement, at law, or in equity, but will be cumulative of such other rights and remedies.
- Third Party Software. The Service may include what is commonly referred to as ‘open source’ software. Under some of their respective license terms and conditions, Sherloq may be required to provide Customer with notice of the license terms and attribution to the third party, in which case Sherloq may provide Customer with such information (whether via the Service, via Sherloq’s website, or otherwise). Notwithstanding anything to the contrary herein, use of the open source software will be subject to the license terms and conditions applicable to such open source software, to the extent required by the applicable licensor (which terms and conditions shall not restrict the license rights granted to Customer hereunder). Sherloq will comply with any valid written request submitted by Customer to Sherloq for exercising any rights Customer may have under such license terms and conditions.
- Relationship. The relationship of the Parties is solely that of independent contractors, and nothing in this Agreement shall be construed to create a relationship of employer and employee, principal and agent, joint venture, franchise, fiduciary, partnership, association, or otherwise between the Parties. Except to the extent required by us in connection with the provision of the Service and/or the performance of our obligations hereunder, neither Party has any authority to enter into agreements of any kind on behalf of the other Party and neither Party will create or attempt to create any obligation, express or implied, on behalf of the other Party.
- Force Majeure. Neither Party shall have any liability for any performance (excluding payment obligations) under this Agreement that is prevented, hindered, or delayed by reason of an event of Force Majeure (defined below). The Party so affected shall be excused from such performance to the extent that, and for so long as, performance is prevented, interrupted, or delayed by the Force Majeure. If and when performance is resumed, all dates specified under this Agreement shall be automatically adjusted to reflect the period of such prevention, interruption, or delay by reason of such Force Majeure. For purposes of this Agreement, an event of “Force Majeure” shall be defined as: (a) fire, flood, earthquake, explosion, pandemic or epidemic (or similar regional health crisis), or act of God; (b) strikes, lockouts, picketing, concerted labor action, work stoppages, other labor or industrial disturbances, or shortages of materials or equipment, not the fault of either party; (c) invasion, war (declared or undeclared), terrorism, riot, or civil commotion; (d) an act of governmental or quasi-governmental authorities (including without limitation lockdowns); (e) failure of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, shortage of adequate power or transportation facilities; and/or (f) any matter beyond the reasonable control of the affected Party. For the avoidance of doubt, any problems relating to hosting of Service by a third party is beyond the reasonable control of Sherloq.
- Government Users. If Customer is a U.S. government entity, or this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that the Service constitutes “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212, DFARS 252.227-7014 and DFARS 227.7202. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Service shall be as provided in this Agreement. If a government agency needs additional rights, it must negotiate a mutually acceptable signed written addendum to this Agreement specifically granting those rights.
- Export Control. You must not use, transfer, export, re-export, import, or divert the Service in violation of any Export Control Laws, or otherwise to: (A) Lebanon, Syria, Iran, Iraq, Sudan, Yemen, Cuba, or North Korea (or other countries specifically designated in writing by us from time to time); (B) any U.S. embargoed countries; or (C) anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or any other restricted party lists. You represent and warrant that you are not located in any such country or on any such list. “Export Control Laws” means all applicable export and re-export control Laws applicable to you and/or Sherloq or its Affiliates, as well as the United States’ Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.
- Expense. Except as may be expressly stated otherwise in this Agreement, each Party shall pay its own costs and expenses incurred in connection with the performance of this Agreement (and any documents referred to in it).
- Customer Resources. You shall be solely responsible: (a) for providing all hardware, software, systems, assets, facilities, and ancillary goods and services needed for you to access and use the Service; and (b) for ensuring their compatibility with the Service. In the event we become legally or contractually required to modify or replace features or functionalities of the Service in order to ensure that it complies with the terms of service or privacy policies of various platforms, networks and/or websites, you shall be responsible for making all necessary changes to your hardware, software, systems, assets, and facilities in order to continue using the Service.
- Notices. The language of this Agreement is expressly agreed to be the English language. You hereby irrevocably waive, to the maximum extent legally permitted, any law applicable to you requiring that the Agreement be localized to meet your language (as well as any other localization requirements), or requiring an original (non-electronic) signature or delivery or retention of non-electronic records. We may be able (but are not obligated) to provide you with copies of this Agreement on written request; however, please be sure to print a copy of this Agreement for your own records. When you visit or submit information on the Site or send an email to us, you are communicating with us electronically. To the maximum extent permitted by law, You consent to receive communications from us electronically. Although we may choose to provide you notice under this Agreement by postal mail, we may also choose to provide notice by email (in which case the notice will be deemed given on the day after sending) and/or by posting notices on the Site and/or Services (in which case the notice will be deemed given when you access the Site or Services). In addition, you acknowledge and agree that when you click on any “SUBMIT”, “I AGREE”, “I ACCEPT”, or similar button, you are submitting a legally binding electronic signature. Pursuant to any applicable laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act“) or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SITE OR SERVICES OFFERED BY SHERLOQ.