Software as a Service Agreement
This agreement (the “Agreement”) constitutes a binding contract between you (“Customer“) and Revealense Ltd. (“Revealense”, “we“, “us“, “our“), whose registered address is at 24 Hamagshimim Street, Petah Tikva, Israel 4934833.
WHEREAS, Revealense develops and offers a software-as-a-service cloud-based deep tech solution for assessment of individuals’ neurofeedback based on video footage, bio-feedback reactions and emotion-feedback reactions (the
“Service); and
WHEREAS, Customer is engaged with [PARTNER NAME] (“Revealense Partner“), who provides Customer with
Assessment Tool(s); and
WHEREAS, Customer is interested in using the Service and receiving Output Data regarding its End Users through the Assessment Tool(s), for Customer’s internal organizational purposes.
NOW THEREFORE, in consideration of the mutual covenants hereinafter, the Parties agree as follows:
1.1. “Assessment Tools” means the tests, exams, questionnaires, or other forms of assessment operated by Customer or Revealense Partner, that the End User is requested by Customer to take in order to assess their neurofeedback.
1.2. “Authorized Users” means those employees, consultants and others that Customer designates and authorizes to use and deal with the Service.
1.3. “End Users” means the individuals whom the neurofeedback Customer wishes to assess using the Service, through Assessment Tools.
1.4. “Input” means the End Users’ written or oral statements and physical reactions as captured by the Service, through Assessment Tools.
1.5. “Legal Responsibilities” means: (a) in the case of Revealense, provision of its Services and handling of Personal Data in compliance with applicable laws and the provisions herein; and (b) in the case of Customer, use of the Service, the Output Data, and the Personal Data (whether by itself or through its Authorized Users) for Customer’s purposes, any decision-making based on the Output Data, and all consequences resulting therefrom, in compliance with applicable laws and the provisions herein. Without derogating from the foregoing, to the extent necessary or required under the laws applicable to the Customer, the Customer shall be solely responsible for obtaining End Users’ consent to processing of their Personal data, as stipulated in Section 7.3 below.
1.6. “Output Data” means the assessment reports and other related data regarding End Users that the Service generates based on the Input.
1.7. “Service Data” means meta-data and analytics about how the Customer uses the Service, the performance of the Service when use by the Customer, the Service’s compatibility and interoperability, and the analysis of the End Users’ Input.
1.8. “Term” means the period of this Agreement , which shall be the period of the engagement between the Revealense Partner and Customer as determined by them.
2.1. Subject to the provisions of this Agreement, Revealense grants Customer and its Authorized Users, worldwide access to use the Service and Output Data, from the date of Customer’s subscription to the Service and throughout the Term, strictly for the Customer’s internal business operations, pursuant to this Agreement and in accordance with the Revealense Partner’s terms of service.
2.2. Customer must ensure that Authorized Users fully comply with this Agreement. Customer shall be liable to Revealense for all acts or omissions of those that use and deal with the Service on its behalf, as though Customer had performed those acts or omissions.
2.3. Customer covenants that Customer and its Authorized Users will use the Service only in compliance with all applicable laws and regulations, this Agreement and any reasonable use policies or instructions issued by Revealense.
3.1. Customer and its Authorized Users shall not, and shall not allow others to:
3.1.1. Sublicense, transfer or assign the Service or any part thereof to any third party, with or without consideration;
3.1.2. knowingly interfere with, burden or disrupt the Service’s functionality;
3.1.3. work around any technical limitations of the Service, or use any tool to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Service;
3.1.4. breach the security of the Service, identify, probe or scan any security vulnerabilities in the Service other than such activities performed in mutual agreement with Revealense;
3.1.5. knowingly send any virus, worm, Trojan horse or other malicious or harmful code or attachment;
3.1.6. use robots, crawlers and similar applications to scrape, harvest, collect or compile content from or through the Service.
3.1.7. Decompile, disassemble, reverse engineer, or otherwise attempt to identify the underlying source code of the Service, unless these activities are your guaranteed and non-waivable rights under applicable law, in which case you shall first notify Revealense of the steps you wish to take; or
3.1.8. Access and use the Service in order to develop or create a product or service competing with the Service.
3.2. Revealense has no obligation to monitor that Customer’s use of the Services complies with this Agreement but may elect to do so. Revealense may suspend the provision of the Services to the Customer, or temporarily or permanently block Customer’s account or access to the Services, if Revealense, in its sole discretion, reasonably believes that the Customer is in violation of the foregoing in a manner detrimental to Revealense or to the proper operation of the Service.
The fees owed by Customer will be determine by Revealense Partner, at the Revealense Partner’s sole discretion. Customer will not be required to pay any additional fees in consideration for the Service to Revealense.
5.1. The Service is a proprietary offering of Revealense, protected under copyright laws and international copyright treaties, patent law, trade secret law and other intellectual property rights of general applicability. The Service is offered to Customer for use and access only in accordance with the terms of this Agreement and is not sold or licensed in any other way.
5.2. Except for Customer’s limited access to use the Service during the Term, this Agreement does not grant or assigns to Customer, any other license, right, title, or interest in or to the Service, or the intellectual property rights associated with them. All rights, title and interest, including copyrights, patents, trademarks, trade names, trade secrets and other intellectual property rights, and any goodwill associated therewith, in and to the Service and Service Data (but not the Input and Output Data), including computer code, graphic design, layout and the user interfaces of the Service, are and will remain at all times, owned by, or licensed, to Revealense.
5.3. Customer owns all right, title and interest in and to the Assessment Tools, the Input and the Output Data. Customer grants Revealense and its third-party service providers a license to use the Input and Output
Data strictly for the Purposes (as defined in Section 7.1 below).
6.1. ”Confidential Information” shall mean any and all information disclosed by one party (”Disclosing Party”) to the other (”Receiving Party”) regarding past, present, or future marketing and business plans, customer lists, lists of prospective customers, technical, financial or other proprietary or confidential information of the Disclosing Party, formulae, concepts, discoveries, data, designs, ideas, inventions, methods, models, research plans, procedures, designs, formulations, processes, specifications and techniques, prototypes, samples, analyses, computer programs and software, trade secrets, data, methodologies, techniques, non-published patent applications and any other data or information, as well as improvements and knowhow related thereto. Input and Output Data are Customer’s Confidential Information. Service Data is Revealense’s Confidential Information.
6.2. Each Party herein must hold any Confidential Information in confidence using the same degree of care, but in no case less than a reasonable degree of care, that it uses to prevent the unauthorized dissemination or publication of its own confidential information. Receiving Party may use this Confidential Information only for the purpose of performing its obligations under this Agreement.
6.3. The obligations set forth in this section shall not apply to information that: (i) is now or subsequently becomes generally available in the public domain through no fault or breach on Receiving Party’s part; (ii) Receiving Party can demonstrate in its prior established records to have had rightfully in Receiving Party’s possession prior to disclosure of the same by the Disclosing Party; (iii) Receiving Party can demonstrate by written records that it had rightfully obtained the same from a third party who has the right to transfer or disclose it, without default or breach of confidentiality obligations; (iv) Disclosing Party has provided its prior written approval for disclosure; or (v) Receiving Party is required to disclose pursuant to a binding order or request by court or other governmental authority, or a binding provision of applicable law, provided that, to the extent permissible, Receiving Party provide the Disclosing Party notice of the requested disclosure as soon as practicable, to allow the Disclosing Party, if it so chooses, to seek an appropriate protective or preventive order.
6.4. Neither party shall, without the approval of the other party, make or have any press release or other public announcement concerning the Agreement or the transaction contemplated by this Agreement.
7.1. In the course of providing its Service, Revealense will process End Users’ Personal Data (as such term is defined in any applicable data protection laws, including without limitation the EU’s General Data Protection Regulation (GDPR) (2016/679/EC)), for the following purposes (collectively, the “Purposes”):
7.1.1. Providing Customer with the Output Data; and
7.1.2. Generating the Service Data and improving and enhancing its Service.
7.2. Revealense and the Customer shall comply with the Data Protection Addendum.
7.3. Customer bears the sole and exclusive liability for obtaining End Users’ informed and express consent to processing of their Personal Data for the Purposes, prior to collecting their Personal Data through the Service. In doing so, Customer shall:
7.3.1. Inform End Users, prior to engaging them in an Assessment Tool, that their Personal Data will be transferred to Revealense for the purpose of providing Customer with the Output Data;
7.3.2. Seek End Users’ separate consent (and record such consent), prior to them engaging with the Assessment Tools, to transfer their Personal Data to Revealense and process it for the purpose of improving and enhancing the Service. To obtain such consent, Customer shall present to End Users an unticked checkbox with the following text:
“I acknowledge that in the process of assessing my answers to the questionnaire/exam/test, [Customer name] utilizes the services of Revealense Ltd., a third-party neurofeedback assessment service. I hereby consent to the processing of my personal data by Revealense Ltd. for the purpose of improving and enhancing their service, in a manner that will not directly identify me”
An End User will be considered to have assented to the above when they check this checkbox prior to commencing their assessment process.
7.3.3. Customer shall be solely responsible for determining the terms and conditions for obtaining consent from End Users and the circumstances under which such consent is lawful, according to applicable laws. Customer shall only use End Users’ Personal Data under those circumstances.
7.4. Customer shall provide Revealense, without undue delay, with a copy of the records of End Users’ consent in a machine-readable format via ____. Customer shall be solely liable to provide Revealense, in a timely manner, with accurate and up-to-date consent records.
7.5. If an End User does not grant their consent for processing of their Personal Data for the Purposes, Customer shall be solely liable to provide that End User an alternative Assessment Tool that does not utilize or involve the Service.
8.1. Revealense will provide the Service in a manner that substantially conforms to the features, abilities and functions specified in the Service’s documentation provided to the Customer by Revealense. In addition, Revealense will endeavor to have the Service operate properly. However, as a service that relies on software, infrastructure, servers, third-party networks and continuous internet connectivity outside the control of the Revealense, Revealense cannot guarantee that the Service will operate in an uninterrupted or error-free manner, or that it will always be available, free from errors, omissions or malfunctions. If Revealense becomes aware of any failure or malfunction, it shall attempt to regain the Service’s availability as soon as practicable.
8.2. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Revealense or by third-party providers, or because of other causes beyond Revealense’s reasonable control. Revealense shall provide advance notice by e-mail of any scheduled Service disruption.
8.3. EXCEPT AS EXPRESLY SET FORTH ABOVE, REVEALENSE DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE AND THE OUTPUT DATA, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, CONTINUOUS UNITERRUPTED USE, NON-INFRINGEMENT, AND TITLE.
8.4. EACH PARTY SHALL BE LIABLE FOR COMPLYING WITH ITS LEGAL RESPONSIBILITIES.
8.5. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT IN THE EVENT OF WILLFUL MISCONDUCT, FRAUD, DEATH OR PERSONAL INJURY, BREACH OF CONFIDENTIALITY OBLIGATIONS, INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS BY THE OTHER PARTY, DAMAGES AND INDEMNITIES ARISING FROM A PARTY’S FAILURE TO COMPLY WITH ITS LEGAL RESPONSIBILITES, OR ANY OTHER LOSSES WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW, THE TOTAL AND AGGREGATE LIABILITY OF A PARTY (INCLUDING ITS RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON ITS BEHALF), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILTY, FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, SHALL NOT EXCEED OF THE FEES ACTUALLY PAID BY THE REVEALENSE PARTNER IN CONNECTION WITH THE SERVICE, IN THE THREE (3) MONTHS PRECEDING THE EVENT PURPORTEDLY GIVING RISE TO THE CLAIM.
8.6. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT IN THE EVENT OF WILLFUL MISCONDUCT, FRAUD, DEATH OR PERSONAL INJURY, BREACH OF CONFIDENTIALITY OBLIGATIONS,
INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS BY THE OTHER PARTY, DAMAGES AND INDEMNITIES ARISING FROM A PARTY’S FAILURE TO COMPLY WITH ITS LEGAL RESPONSIBILITES, OR ANY
OTHER LOSSES WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW, NEITHER PART SHALL
BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OR OF RELATING TO THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILTY.
9.1. Either Party (“Indemnifying Party“) shall defend and fully indemnify the other Party (“Indemnified Party“) and its respective directors, officers, employees, consultants, successors and assigns from and against any claim by a third party alleging that the Indemnifying Party has breached its Legal Responsibilities or any part thereof.
9.2. The Indemnified Party shall promptly notify the Indemnifying Party in writing of any claim for which it seeks indemnification hereunder; provided that the failure to provide such notice shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent of any material prejudice directly resulting from such failure. The Indemnifying Party shall bear full responsibility for, and shall have the right to solely control, the defense (including any settlements) of any such claim; provided, however, that (a) the Indemnifying Party shall keep the Indemnified Party informed of, and consult with the Indemnified Party in connection with the progress of such litigation or settlement and (b) the Indemnifying Party shall not have any right, without the Indemnified Party’s written consent (which consent shall not be unreasonably withheld), to settle any such claim in a manner that does not unconditionally release the Indemnified Party. At the Indemnifying Party’s request, the Indemnified Party will provide reasonable cooperation with respect to any defense or settlement.
10.1. This Agreement and Customer’s use of the Service will be exclusively governed by and construed in accordance with the laws of the State of Israel. Subject to Section 10.2 below, any dispute relating to this Agreement, or the Customer’s use of the Service shall be under the sole jurisdiction and venue of the competent courts located in the Tel Aviv district in Israel.
10.2. Notwithstanding the foregoing, a party may lodge a claim against the other party: (a) pursuant to the indemnity clause above, in any court adjudicating a third party claim against the other party; and (b) for interim, emergency or injunctive relief, in any other court having general jurisdiction over the other party.
11.1. Assignment. Except as set forth below, neither party shall assign this Agreement without obtaining the other’s prior written consent. Except as set forth below, any purported assignment without both parties’ prior written consent is void. Either party may assign this Agreement in its entirety, including all rights, duties, liabilities, performances and obligations herein, upon notice to the other party and without obtaining the other party’s further specific consent, to a third-party, upon a merger, acquisition, change of control or the sale of all or substantially all of the assigning party’s equity or assets. By virtue of such assignment, the assignee assumes the assignor’s stead, including all right, duties, liabilities, performances and obligations hereunder, and assignor shall be released therefrom.
11.2. Relationship of the Parties. The relationship between the Parties hereto is strictly that of independent contractors, and neither Party is an agent, partner, joint venturer or employee of the other.
11.3. Complete Terms and Severability. This Agreement constitutes the entire and complete agreement between the Parties concerning the subject matter herein and supersede all prior oral or written statements, understandings, negotiations and representations with respect to the subject matter herein. If any provision of this Agreement is held invalid or unenforceable, that provision shall be construed in a manner consistent with the applicable law to reflect, as nearly as possible, the original intentions of the Parties, and the remaining provisions will remain in full force and effect. This Agreement may be modified or amended only in writing, signed by the duly authorized representatives of both Parties.
11.4. No Waiver. Neither Party will, by mere lapse of time, without giving express notice thereof, be deemed to have waived any breach, by the other Party, of any terms or provisions of this Agreement. The waiver,
by either Party, of any such breach, will not be construed as a waiver of subsequent breaches or as a continuing waiver of such breach.