Thank you for choosing FOSSAware consulting services. These Terms of Service (“Terms”) constitutes a binding agreement (“Agreement”) between you and FOSSAware Ltd. (“FOSSAware” or “Consultant”). By signing an Order linked to these Terms you expressly acknowledge and/or agree to these Terms and Agreement. In addition, if you are entering into these Terms on behalf of a company or other legal entity, you hereby warrant that you have authority to bind such entity to these Terms, in which case the terms “you” or “Customer” shall refer to such entity. You hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law. If you don’t agree to these Terms or you do not have authority to enter into these Terms, you must not accept these Terms and may not sign a service Order with FOSSAware. We may amend these Terms at any time by posting an amended version which shall apply only to Orders signed under the amended Terms.
1. Services
1.1. Description of Services. FOSSAware will perform the business consulting and services specified in each properly signed service Order (“Order”). Each Order shall be incorporated to this Agreement by reference in accordance with the below terms and conditions (the “Services”). Each Order shall become effective only when signed by both parties (“Effective Date”). In case of any inconsistency or contradiction between the provisions of this Agreement and the provisions of an Order, such provisions of the Order shall prevail, but only as to the subject matter of such inconsistency and such Order. An Order may not be modified or amended except as mutually agreed in writing by the Parties.
1.2 Cooperation. Customer acknowledges that the successful and timely rendering of the Services will require the good faith cooperation of Customer shall fully cooperate with FOSSAware, including without limitation, by: (a) providing FOSSAware with all information as may be reasonably required by FOSSAware; and (b) making available to FOSSAware at least one employee, consultant or director of Customer, reasonably acceptable to FOSSAware, who shall have substantial relevant knowledge and experience to act as a Project Manager in connection with the rendering of the Services. The name of Customer’s Project Manager should be set forth in the applicable Order. All estimated dates specified in an Order shall be extended by delays caused by Customer, including without limitation, Customer’s submission of Change Requests which impact FOSSAware’s normal schedule.
2. Payment
2.1 Compensation. In consideration for the Services, Customer shall pay to FOSSAware fees based on the rates described in the applicable Order. FOSSAware shall invoice Customer according to the agreed upon timing in the applicable Order. All such invoiced amounts are due within thirty (30) days of the date of such invoice. Amounts that are not paid within thirty (30) days of the date of such invoice will incur a late fee of one and one-half percent (1.5%) per month or the maximum allowed by law, whichever is less. Customer shall pay any amounts incurred by FOSSAware in the collection of past-due amounts owed, including, but not limited to, reasonable attorneys’ fees and costs.
2.2 Customer shall be responsible to pay all taxes, however designated, that are levied or imposed by reason of the transactions contemplated by this Agreement, including without limitation all sales, use, transfer, privilege, excise and other taxes and duties, whether international, national, state or local, excluding, however, taxes based on FOSSAware’s net income.
3. Ownership; Grant of Licenses
3.1 Except as otherwise provided herein or in any applicable Order, the parties agree that all documents, designs, inventions, products, pricing, costs, future plans, business information, process information, technical information, customer lists, computer programs, computer systems, data, computer documentation, ideas, processes, techniques, know-how, knowledge and other proprietary and/or tangible materials authored or prepared by FOSSAware (and its employees, agents, consultants or subcontractors) for Customer as the Deliverables are the sole and exclusive property of Customer.
3.2 Customer acknowledges that FOSSAware provides business consulting services to other clients, and agrees, subject to FOSSAware’s confidentiality obligations hereunder, that nothing in this Agreement shall be deemed or construed to prevent FOSSAware from carrying on such business during the Term of this In particular, Customer agrees that as part of FOSSAware’s provision of the Services hereunder, FOSSAware may utilize proprietary works of authorship that have not been created specifically for Customer, including without limitation, software, methodologies, tools, specifications, drawings, sketches, models, samples, records and documentation, as well as copyrights, trademarks, service marks, ideas, concepts, know-how, techniques, knowledge or data, which have been originated, developed or purchased by FOSSAware or by third parties under contract to FOSSAware (all of the foregoing, collectively, “FOSSAware’s Information“), and FOSSAware’s Information and FOSSAware’s administrative communications, records, files and working papers relating to the Services are and shall remain the sole and exclusive property of FOSSAware.
3.3 Except as otherwise provided herein or in any applicable Order, upon payment in full of all fees and other amounts due under this Agreement and provided that Customer is not in material breach of this Agreement, FOSSAware grants to Customer a perpetual, worldwide, non-exclusive, non-transferable license to use Deliverables solely for the purpose expressly set forth in any applicable Order, and FOSSAware’s Information incorporated into the Deliverables solely in connection with Customer’s use of the Deliverables. Except as otherwise provided herein or in any applicable Order, Customer shall not have the right to license, sublicense or otherwise transfer to any third party the right to use the Deliverables or FOSSAware’s Information without FOSSAware’s prior written consent.
3.4 Any and all data, information, reports, analysis, artwork, logos, graphics, video, text, and other materials, including without limitation, financial data supplied by Customer to FOSSAware in connection with this Agreement, if any, shall remain the sole and exclusive property of Customer (the “Customer Content“).
3.5 FOSSAware shall have the right to use Customer’s name and trademark in its advertising, customer lists and marketing materials, subject to Customer’s approval granted herein.
4. Confidentiality
4.1 A party disclosing Confidential Information shall herein be referred to as the “Disclosing Party,” and a party receiving Confidential Information hereunder shall herein be referred to as the “Receiving Party“.
4.2 “Confidential Information” shall mean, without limitation, (i) any idea, proposal, plan, information, procedure, technique, formula, technology or method of operation, any written or oral information of a proprietary nature, and any intellectual property owned or licensed by a Disclosing Party or relating to a Disclosing Party’s or any of its principals’ or affiliates’ business, projects, operations, finances, activities or affairs, whether of a technical nature or not (including trade secrets, know-how, processes, and other technical or business information), and any proposed change thereto; (ii) any other information disclosed by a Disclosing Party and designated by a Disclosing Party as confidential; and (iii) the Deliverables (until paid for by Customer as provided hereunder), FOSSAware’s Information and Customer By way of illustration, but not limitation, Confidential Information includes, without limitation, information regarding (i) all of the computer software and technologies, systems, structures, architectures, processes, formulae, compositions, improvements, devices, know-how, inventions, discoveries, concepts, ideas, designs, methods, and information and databases developed, acquired, owned, produced or practiced at any time by a Disclosing Party or any affiliate thereof, software programs and documentation licensed by third parties to a Disclosing Party, and any other similar information or material; (ii) customer lists, telemarketing lists, vendor lists, employee personnel information and policies and procedures; (iii) a Disclosing Party ‘s products and services; (iv) business or financial information directly or indirectly related to a Disclosing Party’s companies and investments; and (v) other processes and procedures employed by a Disclosing Party.
4.3 Non-Applicability. Notwithstanding Section 4.2, Confidential Information shall not apply to information which (i) has entered the public domain or is otherwise publicly available, except where such entry or availability is the result of the Receiving Party’s breach of this Agreement; (ii) prior to disclosure hereunder was already in the Receiving Party’s possession without restriction as evidenced by appropriate documentation; (iii) subsequent to disclosure hereunder is obtained by the receiving party on a non-confidential basis from a third party who has the right to disclose such information; or (iv) was developed by the receiving party without any use of any of the Confidential Information as evidenced by appropriate documentation.
4.4 Obligations of Confidentiality. Receiving Party agrees to hold all Confidential Information in strict confidence and shall not, without the express prior written permission of Disclosing Party: (i) disclose any Confidential Information to third parties or(ii) use the Confidential Information for any purpose other than to perform its obligations under this Agreement or for the purpose expressly set forth in the applicable Statement of Without limiting the generality of the foregoing, Receiving Party shall be permitted to disclose Confidential Information only to its officers, employees and consultants who have an absolute need to know such Confidential Information and who are informed of and agree to be bound by the confidentiality obligations set forth herein; provided that Receiving Party will be liable for breach by any such person or entity. Receiving Party shall not make any copies of the Confidential Information except as necessary for the performance of its obligations under this Agreement and for its officers, employees, consultants, attorneys and accountants with a need to know. Any copies which are made shall be identified as belonging to Disclosing Party and marked “confidential,” “proprietary” or with a similar legend. Receiving Party shall use commercially reasonable efforts to assist Disclosing Party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the foregoing, Receiving Party shall promptly advise Disclosing Party in the event that it learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Section 4, and shall cooperate in seeking injunctive relief against any such person.
4.5 Disclosure Required by Law. Notwithstanding anything to the contrary herein, each party may disclose the other party’s Confidential Information in order to comply with applicable law and/or an order from a court or other governmental body of competent jurisdiction and, in connection with compliance with such an order, provided that the Receiving Party may disclose only such information as is legally required, and provided further that the Receiving Party shall: (i) provide (to the extent legally permitted) reasonable notice to the Disclosing Party of such requirement; and (ii) cooperate with the Disclosing Party in protecting against any such disclosure and/or obtaining a protective Order narrowing the scope of the compelled disclosure and protecting its confidentiality at the Disclosing Party expense.
4.6 Except as otherwise provided herein, title or the right to possess Confidential Information as between the parties shall remain in Disclosing Party. Receiving Party shall not gain any interest or rights in or to the Confidential Information by virtue of its being disclosed to Receiving Party.
4.7 Return of Confidential Unless the Receiving Party has a license to use the Confidential Information pursuant to Section 3, upon any termination of this Agreement, or at any time upon Disclosing Party’s request, Receiving Party shall promptly, at Disclosing Party’s option, either return or destroy all (or, if Disclosing Party so requests, any part) of the Confidential Information previously disclosed, and all copies thereof, and Receiving Party shall certify in writing as to its compliance with the foregoing.
4.8 Injunctive The parties agree that, in the event of any breach of any provision hereof, the non-breaching party may not have an adequate remedy in money or damages. The parties therefore agree that, in such event, the non-breaching party shall be entitled to seek injunctive relief against such breach in any court of competent jurisdiction. Such injunctive relief will, in no way, limit the non-breaching party’s right to obtain other remedies available under applicable law.
5. Warranties
5.1 Warranties of FOSSAware represents and warrants that: (a) the Services will be performed in a commercially reasonable manner in accordance with the standards generally prevailing in the industry; (b) it has all necessary rights and authority to execute and deliver this Agreement and perform its obligations hereunder; and (c) neither this Agreement nor FOSSAware’s performance of its obligations hereunder will place FOSSAware in breach of any other contract or obligation and will not violate the rights of any third party.
5.2 Warranties of Customer represents and warrants that (a) it has all necessary rights and authority to execute and deliver this Agreement and perform its obligations hereunder; (b) neither this Agreement nor Customer’s performance of its obligations hereunder will place Customer in breach of any other contract or obligation and will not violate the rights of any third party; (c) the Customer Content is, to Customer’s knowledge, accurate, valid and true in all material respects as of the date it is provided to FOSSAware; and (d) Customer will not use the Deliverables in any manner which is in violation of any law or regulation.
5.3 EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5, CONSULTANT EXPRESSLY DISCLAIMS AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5, ALL SERVICES AND DELIVERABLES ARE PROVIDED “AS ” CONSULTANT IS PROVIDING SERVICES TO ASSIST CUSTOMER. CUSTOMER IS RESPONSIBLE FOR REVIEWING THE DELIVERABLES TO ENSURE THEIR ACCURACY AND COMPLETENESS AND FOR THE RESULTS OBTAINED FROM ITS USE OF THE DELIVERABLES. WITH THE EXCEPTION OF CONSULTANT’S INDEMNIFICATION OBLIGATIONS FOR THIRD PARTY CLAIMS AS SET FORTH IN SECTION 6, CONSULTANT’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THIS WARRANTY IS CONSULTANT’S REPERFORMANCE OF THE SERVICES.
6. Indemnification
FOSSAware and Customer hereby each agree to indemnify, defend and hold each other (and each of their respective affiliates, subsidiaries, directors, managers, officers, employees, agents, shareholders and members) harmless from and against any and all actual or threatened claims, actions, damages, liabilities, costs and expenses, including without limitation reasonable attorney’s fees and expenses, arising out of or in connection with (i) the death or bodily injury of any person, to the extent that such death or bodily injury was caused by its own gross negligence or willful misconduct; (ii) the damage, loss or destruction of real or tangible personal property, to the extent that such damage, loss or destruction was caused by its own gross negligence or willful misconduct; and (iii) any damages incurred directly or by virtue of a claim made by a third party, in either case, arising out of a breach of its own representations, warranties, covenants or duties arising out of, or in connection with, this
7. Limitation of Liability
7.1 FOSSAWARE SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF USE, LOSS OF BUSINESS OR LOSS OF ANY FOSSAWARE LIABILITY TO CUSTOMER FOR ANY DAMAGES OF ANY KIND UNDER THIS AGREEMENT SHALL NOT EXCEED, IN AMOUNT, A SUM EQUIVALENT TO THE AMOUNTS PAYABLE BY CUSTOMER TO FOSSAWARE FOR ALL SERVICES FOR THE SIX MONTH PERIOD PRIOR TO ANY CLAIM. REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY DESCRIBED IN THIS AGREEMENT.
7.2 No action arising out of breach of this Agreement or transactions related to this Agreement may be brought by either party more than one (1) year after the cause of action accrued, regardless of the form of the action.
7.3 Both parties understand and agree that the limitations and exclusions set forth herein represent the parties’ agreement as to the allocation of risk between the parties in connection with FOSSAware’s obligations under this Agreement. The fees payable to FOSSAware hereunder reflect, and are set in reliance upon, the allocation of risk and the exclusions and limitations of liability set forth in this Agreement.
8. Term and Termination
8.1 Term. The term of this Agreement (the “Term”) shall commence upon the Effective Date and shall continue in full effect until terminated by the parties. This Agreement shall be terminable at will by either party upon one hundred sixty (60) day notice to the other, provided however, that the terms and conditions of this Agreement will continue to govern any outstanding Order’s despite such termination. The specific term and termination rights for Order’s shall be set forth in each Order.
The Agreement, and any or all outstanding Order’s may be terminated immediately by either party for “cause” upon an event of default. “Cause” is defined as (i) the failure of Customer to pay any amounts when due for Services that are undisputed (provided any disputes are reasonable and in good faith) or the failure to pay any amounts when due that Customer owes to FOSSAware under any other agreements, contracts, or other arrangements or otherwise, (ii) Any material failure by a party to comply with or to perform any material nonpayment provision or condition of a this Agreement and the continuance of such failure for a period of thirty (30) days after notice thereof to such party or the failure by Customer to comply with or to perform any material nonpayment provision under any other agreement or understanding between Customer and FOSSAware; or (iii) A party becomes insolvent, is unable to pay its debts when such debts become due, or is the subject of a petition in bankruptcy, whether voluntary or involuntary, or of any other proceeding under bankruptcy, insolvency or similar laws; or makes an assignment for the benefit of creditors; or is named in, or its property is subject to a suit for appointment of a receiver; or is dissolved or liquidated.
8.2 Rights Upon Termination. In the event that this Agreement or any Order are terminated by either party pursuant to this Section 8, Customer shall have no right to use or exploit in any manner, the Deliverables or FOSSAware’s Information related to such Order unless Customer has paid the full fees related thereto. In the event of any termination of this Agreement, FOSSAware and Customer shall promptly comply with Section 4.7 regarding return or destruction of Confidential Information.
9. Non-Solicitation of Employees
The parties shall not, during the Term and for a period of eighteen (18) months thereafter, directly or indirectly solicit, employ, offer to employ, or engage as a consultant, any employee, agent, consultant or subcontractor of the other party. The parties agree that, in the event of any breach of this Section 9, the non-breaching party will not have an adequate remedy in money or damages. The parties therefore agree that, in such event, the non-breaching party shall be entitled to obtain injunctive relief against such breach in any court of competent jurisdiction, without the necessity of posting a bond even if otherwise normally required. Such injunctive relief will in no way limit the non-breaching party’s right to obtain other remedies and damages available under applicable law.
10. Independent Contractor
FOSSAware (including any and all FOSSAware employees, agents, consultants or subcontractors), in performance of this Agreement, is acting as an independent contractor and not as an employee or agent of Customer. FOSSAware shall have exclusive control of the manner and means of performing its obligations under this Agreement. Each party shall be solely responsible for the supervision, daily direction and control of its employees and payment of their salaries (including withholding of appropriate payroll taxes), workers’ compensation, disability, health insurance and other benefits. Nothing in this Agreement shall be construed as making either party the agent of the other party, as granting to the other party the right to enter into any contract on behalf of the other party, or as establishing a partnership, franchise or joint venture between the parties. Under no circumstances shall the employees of one party be deemed to be employees of the other party for any purpose.
11. Force Majeure
Neither party shall be deemed in default or otherwise liable for any delay in or failure of its performance under this Agreement or any Order (other than payment obligations) by reason of any Act of God, war, fire, natural disaster, accident, riot, act of government, strike or labor dispute, or any other cause beyond the reasonable control of such party. Performance times shall be considered extended for a period of time equivalent to the time lost because of such delay.
12. Governing Law; Entire Agreement
This Agreement and each Order shall be governed by and construed in accordance with the laws of the State of Israel, without regard to its conflict of laws provisions. The exclusive jurisdiction and venue for all legal actions arising out of or related to this Agreement shall be in courts of competent subject matter jurisdiction located in the city of Tel Aviv-Jaffa, Israel, and the parties hereby consent to the jurisdiction of such courts. This Agreement, together with any Order executed pursuant hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, proposals, understandings and representations, written or oral, with respect to the subject matter hereof. Neither this Agreement nor any Order may be modified or amended except in a writing signed by duly authorized representatives of each party. To the extent there is such a conflict between the terms and conditions of an Order and the terms and conditions of this Agreement, the terms and conditions of this Agreement shall govern and control unless otherwise specified in the Statement of Work.
13. Severability
If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement, but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision and the rights and obligations of the Parties shall be construed and enforced accordingly. In addition, the parties hereby agree to cooperate to replace the invalid or unenforceable provision(s) with valid and enforceable provision(s) which will achieve the same result (to the maximum legal extent) as the provision(s) determined to be invalid or unenforceable.
14. Survival
In the event of any termination of this Agreement, the parties agree that Sections 2, 3, 4, 5, 6, 7, 9 12 and 13 shall survive such termination. In addition, certain terms in the Statement of Work shall also survive the termination of the Agreement if so specified therein. In addition, the parties agree that certain other terms and conditions may, by their nature, survive any termination of this Agreement.
15. Waiver
No waiver or forbearance by either party hereto of any rights hereunder in any particular instance shall act to preclude such party from exercising those rights in any other instance
16. Assignment
The parties shall not assign their rights, duties or obligations under this Agreement, in whole or in part, without the prior written consent of the other party.
17. Headings
The section and other headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
Date: December 1st 2020
