Vanti’s Software Subscription Agreement

This Software Subscription Agreement (the “Agreement”) contains the terms and conditions upon which Vanti Analytics Ltd.(“Company”), provides to you (“Customer”) services as described below. Vanti and the Company shall be regarded each as a “Party”, and collectively as the “Parties”.

 

WHEREAS, Company is the owner, developer and provider of the Software (defined below); and

 

WHEREAS, Customer wishes to obtain, and Company is willing to grant, a right to use the Software on the terms and conditions in this Agreement; and

 

NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the sufficiency of which is hereby acknowledged, the Parties agree as follows:

 

  1. The following capitalized terms have the meanings set forth below:

 

Affiliate” means, with respect to either Party, any person, organization or entity controlling, controlled by or under common control with, such Party. For purposes of this definition only, “control” of another person, organization or entity will mean the possession, directly or indirectly, of the power to direct or cause the direction of the activities, management or policies of such person, organization or entity, whether through the ownership of voting securities, by contract or otherwise. Without limiting the foregoing, “control” will be deemed to exist when a person, organization or entity (i) owns more than fifty percent (50%) of the outstanding voting stock or other ownership interest of the other organization or entity, or (ii) possesses, directly or indirectly the power to elect or appoint more than fifty percent (50%) of the members of the governing body of the other organization or entity.

 

Customer Data” means any data or information inputted or uploaded to the Software by or on behalf of Customer, or otherwise integrated with the Software via an API, or data belonging to Customer’s applications within the environment in which the Software is accessed (such as, application ‘metadata’).

 

Deliverable” means any output of the Software based on the Customer’s Upload of Customer Data.

 

Effective Date” means the date on which the Customer electronically signed any proposal or offer issued by the Company

 

Feature” means any module, tool, functionality, or feature of the Software.

 

Intellectual Property Rights” means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, and whether registered or unregistered) in and to any technology, invention, work of authorship, software, database, data, know-how, software, design, and/or other intellectual property, and includes but is not limited to patents, copyrights and similar authorship rights, moral (and similar personal) rights, mask work rights, data and database rights, trade secret rights and similar rights in confidential information and other

non-public information, design rights, industrial property rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as: (i) all applications, registrations, renewals, reexaminations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) all goodwill associated with the foregoing.

 

Order Form” means the signed proposal form for the Software and any related services as attached hereto.

 

Professional Services” means installation, deployment, configuration, customization, integration, training, or other professional services.

 

Software” means Company’s data analytics web-based software service solution.

 

Subscription Scope” means any Software usage and/or consumption limitations and parameters (for example, as to volume of Users, quantity of Uploads and Deliverables per month, Features) set forth in the Order Form.

 

Subscription Term” means the Software subscription period specified in the Order Form.

 

Upload” means any upload of Customer Data to the Software used in the generation of a Deliverable.

 

Users” means an employee of Customer (or its Affiliates, as permitted hereunder) authorized to access and use the Software.

 

  1. SUBSCRIPTION

 

 

pre-agreed in the Order Form, if any). If Additional Purchases take effect during a Subscription

 

Term, the Subscription Fees and the term therefor will be prorated to be coterminous with said Subscription Term.

 

 

 

 

 

product that is the same as (or substantially similar to) it; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Software; (j) employ any hardware, software, device, or technique to pool connections or reduce the number of licenses, servers, nodes, or Users that directly access or use the Software (sometimes referred to as ‘virtualisation’, ‘multiplexing’ or ‘pooling’) in order to circumvent the Subscription Scope; (k) forge or manipulate identifiers in order to disguise the origin of any data or content inputted or uploaded to, or transmitted through, the Software by Customer; or (l) take any action that imposes or may impose (as determined in Company’ reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Software, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure.

 

 

  1. SUPPORT During the Subscription Term, and subject to Customer’s payment of the Fees, Company shall provide its then current, standard Software technical support and maintenance services (“Support Services“). The Support Services (in whole or in part) may be performed by Company, and/or Company-certified third party service providers, and Company shall remain primarily responsible for such service providers’ performance of the Support Services.

 

  1. PROFESSIONAL SERVICES. In the event Customer wishes to receive Professional Services, Customer shall request same from Company in writing, and, subject to Company’ agreement in its sole discretion to provide the Professional Services, such Professional Services shall be set out in sequential Professional Services Statements of Work (that reference a corresponding price quotation to which it relates) to this Agreement negotiated and executed by both Parties (each, a “Professional Services SOW“). Professional Services shall be charged in accordance with the applicable Professional Services SOW. Each Professional Services SOW is hereby deemed incorporated into this Agreement by To the extent of any conflict between the main body of this Agreement and a Professional Services SOW, the former shall prevail, unless and to the extent that the Professional Services SOW expressly states otherwise. The Professional Services will be performed by Company and/or its Affiliates. Company may subcontract Professional Services (in whole or in part) to a third party contractor, and Company shall remain primarily responsible for such contractor’s performance of the Professional Services.

 

  1. PAYMENT

 

 

 

non-refundable, and are without any right of set-off or cancellation; (c) all Fees are payable, and shall be invoiced on a quarterly basis, in advance, and shall be paid within seven (7) days of receipt of invoice; 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 and the highest amount permitted by applicable law.

 

(a) if Customer is seven (7) days or more overdue on a payment; (c) if Company deems such suspension necessary as a result of Customer’s breach under Section 2.6 (Restrictions); (c) if Company reasonably determines suspension is necessary to avoid material harm to Company, to its other customers, or to the Software, including if the Software’s cloud infrastructure is experiencing denial of service attacks or other attacks or disruptions outside of Company’s control, or (d) as required by law or at the request of governmental entities.

 

 

  1. OWNERSHIP

 

 

 

 

 

 

 

Customer shall make, and hereby irrevocably makes, all assignments and/or waivers necessary or reasonably requested by Company to ensure and/or provide Company (and/or its designee(s)) the ownership rights set forth in this paragraph. Company shall be entitled, from time to time, to modify and replace the Features (but not material functionalities, unless it improves the material functionality) and user interface of the Software.

 

 

  1. Each Party (the “Recipient“) may have access to certain non-public or proprietary information and materials of the other Party (the “Discloser“), whether in tangible or intangible form (“Confidential Information“). Confidential Information shall not include information and material which: (a) at the time of disclosure by Discloser to Recipient hereunder, is in the public domain; (b) after disclosure by Discloser to Recipient hereunder, becomes part of the public domain through no fault of the Recipient; (c) was rightfully in the Recipient’s possession at the time of disclosure by the Discloser hereunder, and which is not subject to prior continuing obligations of confidentiality; (d) is rightfully disclosed to the Recipient by a third party having the lawful right to do so; or (e) independently developed by the Recipient without use of, or reliance upon, Confidential Information received from the Discloser. The Recipient shall not disclose or make available the Discloser’s Confidential

 

Information to any third party (including without limitation by way of publishing), except to its employees, contractors, advisers, agents and investors, subject to substantially similar written confidentiality undertakings). Recipient shall take commercially reasonable measures, at a level at least as protective as those taken to protect its own Confidential Information of like nature (but in no event less than a reasonable level), to protect the Discloser’s Confidential Information within its possession or control, from disclosure to a third party. The Recipient shall use the Discloser’s Confidential Information solely for the purposes expressly permitted under this Agreement. In the event that Recipient is required to disclose Confidential Information of the Discloser pursuant to any Law, regulation, or governmental or judicial order, the Recipient will (a) promptly notify Discloser in writing of such Law, regulation or order, (b) reasonably cooperate with Discloser in opposing such disclosure, (c) only disclose to the extent required by such law, regulation or order (as the case may be). Upon termination of this Agreement, or otherwise upon written request by the Discloser, the Recipient shall promptly return to Discloser its Confidential Information (or if embodied electronically, permanently erase it), and certify compliance writing.

 

Notwithstanding anything in this Agreement to the contrary, the pricing and payment terms under the Order Form are confidential to Company, and Customer shall not disclose such Confidential Information to any third party (except its accountants and lawyers), without Company’ prior express written consent.

 

  1. THE SOFTWARE, SERVICES, OUTPUT, AS WELL AS ANY OTHER GOODS AND SERVICES PROVIDED OR MADE AVAILABLE BY COMPANY OR ITS AFFILIATES HEREUNDER (COLLECTIVELY, THE “COMPANY MATERIALS“) ARE PROVIDED AND MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL DEFECTS. ALL ACCESS TO, USE OF, AND RELIANCE UPON, COMPANY MATERIALS IS AT CUSTOMER’S SOLE RISK (AND ACCORDINGLY CUSTOMER AGREES NOT TO USE OR RELY UPON THE COMPANY MATERIALS AS A SUBSTITUTE FOR PROFESSIONAL ADVICE).

 

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 COMPANY AND ITS LICENSORS. COMPANY DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION: (A) REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, TIMELINESS, COMPLETENESS, OR QUALITY OF COMPANY MATERIALS; (B) THAT CUSTOMER’S USE OF COMPANY 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; OR (D) REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY LAWS, REGULATIONS, OR OTHER GOVERNMENT OR INDUSTRY RULES OR STANDARDS. COMPANY 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 PUBLIC NETWORKS OR HOSTING PROVIDERS. COMPANY, ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS ARE NOT INVESTMENT, RISK, TAX OR FINANCIAL ADVISORS, AND THE COMPANY MATERIALS ARE NOT INTENDED TO PROVIDE, AND SHOULD NOT BE CONSTRUED AS PROVIDING, ANY INVESTMENT, RISK, TAX OR OTHER FINANCIAL OR LEGAL ADVICE, OF ANY KIND.

 

  1. LIMITATION OF LIABILITY

 

 

 

 

 

 

 

 

  1. INDEMNIFICATION

 

(B) to cede to Company full control of the defense and settlement of the Infringement Claim (except that any non-monetary obligation imposed on Customer under a settlement shall require Customer’s prior written consent, not to be unreasonably withheld, conditioned or delayed); (C) to provide Company with all information and assistance reasonably requested by Company; and

(D) not to admit any liability under (or otherwise compromise the defense of) the Infringement Claim. Customer may participate in the defense of the Infringement Claim at Customer’s own cost and expense.

 

 

 

 

  1. TERM AND TERMINATION

 

(60) days prior to the expiration of the then-current Subscription Term.

 

 

 

 

  1. MISCELLANEOUS

 

 

 

obligation hereunder may be performed (in whole or in part), and any Company right (including invoice and payment rights) or remedy may be exercised (in whole or in part), by an Affiliate of Company.

 

 

 

 

 

 

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.

 

(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; (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. Notwithstanding the foregoing, Customer shall not be entitled to use, or rely on, this Section (Force Majeure) in connection with any Customer breach of the Subscription and/or Company’s Intellectual Property Rights. For the avoidance of doubt, any problems relating to hosting of the Software by a third party is beyond the reasonable control of Company.

 

 

 

export, re-export, import, re-import or divert the Software or such documentation in violation of any Export Control Laws (defined below), and shall not transfer, export, re-export, import,

re-import or divert any the Software or such documentation to Lebanon, Syria, Iran, Iraq, Sudan, Yemen, Cuba, or North Korea (or other countries specifically designated in writing by Company from time to time). In the event of a breach under this Section (Export Compliance), Customer agrees to indemnify and hold harmless Company and all Company Affiliates (and their respective directors, officers, and employees) for any fines and/or penalties imposed upon Company or a Company Affiliate (or such persons) as a result of such breach. “Export Control Laws” means all applicable export and re-export control Laws applicable to Customer and/or Company or its Affiliates (such as those of the State of Israel), 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.

 

IN WITNESS WHEREOF, Company and Customer have caused this Agreement to be executed by their respective duly authorized officers or representatives as of the Effective Date.