End User License Agreement Copy

End User License Agreement

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THESE TERMS AND CONDITIONS (the “Agreement”) CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND CLARIFRUIT, LTD. AND ITS AFFILIATES (“Company”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO BIND SUCH ENTITY TO THIS AGREEMENT. In any event, references herein to “Customer” means you or such entity, as the case may be (each, a “Party” and collectively, the “Parties”). Customer may use the Service (as defined below) subject to the terms below.
By clicking the “I Accept” button or by otherwise installing or using any part of the Service (as defined below), Customer acknowledges these terms and conditions and represents that it has fully read and understood, and agrees to be bound by, the following (the date of such occurrence being the “Effective Date”): (a) this Agreement; and (b) other supplemental terms and policies that this Agreement expressly incorporates by reference, and which are thereby made a part of this Agreement.

IF CUSTOMER DOES NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT, CUSTOMER MUST NEITHER CLICK “I ACCEPT” NOR INSTALL OR USE ANY PART OF THE SERVICE.

The language of this Agreement and all attachments or amendments to this Agreement, contract interpretations, notices and dispute resolutions is hereby expressly agreed to be the English language. By entering into the Agreement, Customer hereby irrevocably and unconditionally waives any law applicable to Customer requiring that the Agreement be localized to meet Customer’s language or requiring an original (non-electronic) signature or delivery or retention of non-electronic records.

Company and Customer acknowledge that, notwithstanding the Customer clicking the “I Accept” button, the terms and conditions of this Agreement shall not apply, and shall not bind either Company or Customer, if Company (or a Company affiliate) and Customer have entered into a separate, non-electronic license agreement for the Service.

The section and sub-section headings in this Agreement are for convenience of reading only and shall not be used or relied upon for interpretive purposes. This Agreement constitutes the entire agreement and understanding of the Parties relating to the subject matter hereof, superseding all prior or contemporaneous agreements, representations, promises and understandings, whether written, electronic, oral or otherwise. This Agreement may be amended by Company from time to time.

  1. Definitions.  The following capitalized terms have the meanings set forth below:
    1.1 “Feature” means any module, tool, functionality, or feature of the Service.
    1.2 “Subscription Scope” means any Service usage and/or limitations set forth in this Agreement and the service plan you choose.
    1.3 “Users” means an employee, contractor or consultant of Customer authorized to access and use the Service.
  2. Subscription.
    2.1 Access Right. Subject to the terms and conditions of this Agreement, Company hereby grants Customer a limited, worldwide, non-exclusive, non-sublicensable, non-transferable and revocable right to access the Company’s software-as-a-service system that identifies and analyzes fresh produce quality (“Service”) during the Subscription Term (as defined below), solely for Customer’s internal purposes (collectively, the “Subscription”), in accordance with the Subscription Scope. Unless otherwise indicated, the term “Subscription” also includes any appliance and any manual or documentation (“Documentation”) provided or made available to Customer in connection with the operation of the Service. Customer shall be solely responsible for providing all equipment, systems, assets, access, and ancillary goods and services needed to access and use the Service, for ensuring their compatibility with the Service.

    2.2 Account Setup. Each User will need to set up a user account on the Service’s web and/or mobile applications, and agree to the terms and conditions of such application(s) (“Account”). References herein to ‘Account’ shall be deemed to include all such user Accounts, as 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. Customer shall be responsible and liable for all activities of its unauthorized access or use of the Service must be immediately reported to the Company.

    2.3 Hosting. The Service is hosted by a third party hosting service provider selected by Company (“Hosting Provider”), and accordingly the availability and security of the Service shall be in accordance with the Hosting Provider’s then-current uptime commitments, as further described under Exhibit B attached hereto.

    2.4 Additional Purchases. Purchases of access to additional Features and/or purchases of additional access rights to the Service under the Subscription Scope (collectively, “Additional Purchases”), shall be made according to the pricing agreed between the Parties. If Additional Purchases take effect during a Subscription Term, the Fees and the term therefor will be prorated to be coterminous with said Subscription Term.

  3. Support Services and Professional Services.
    3.1 Company shall provide support and maintenance services in accordance with Company’s then-current Service Level Agreement attached hereto as Exhibit A (“SLA”). The support and maintenance services may be performed by Company and/or Company’s certified third party providers. Company shall be responsible for such service providers’ performance of the support and maintenance services.
  4. Fees.
    4.1 Fees. Customer shall pay Company the Subscription fees specified on the website according to the plan chose by Customer (the “Fees”). It is hereby agreed that that if this Agreement is terminated, the termination of your payment obligations will take effect in the month after the month during which the termination notice was given. If you choose to end this Agreement, no refund shall be provided.

    4.2 In order for the Customer to be able to use the Service, during the registration process, you will be required to provide credit card details in order to pay for the Services through a payment service provider on our part (hereinafter: the “Payment Details” and the “Payment Service Provider”) and will be subject to the service agreement and Privacy Policy of the Payment Service Provider. You confirm and authorize the Company and its Payment Service Provider to use your Payment Details for collection of the Fees in accordance with the terms of this Agreement. The payment will be in monthly installments. The Company reserves the right to adjust or update the amount of the Fees, at its sole discretion. In such a case, we will inform you of such an update by sending a notice on the matter of the future change to your email address.

    4.3 Suspension. Company reserves right to temporarily suspend provision of Service: (a) if Customer is seven (7) days or more overdue on an undisputed payment; (b) if Company deems such suspension necessary as a result of Customer’s material breach of Section ‎5 (Subscription Restrictions); (c) if Company reasonably determines suspension is necessary to avoid material harm to Company or its other customers, including if the Service’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.

    4.4 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 Company’s net. In the event that Customer is required by any law applicable to it to withhold or deduct taxes for any payment under this Agreement, then the amounts due to Company shall be increased by the amount necessary so that Company receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction.

  5. Subscription Restrictions. As a condition to the Subscription, and except as expressly permitted otherwise under this Agreement, Customer shall not do (or permit or encourage to be done) any of the following license restrictions (in whole or in part): (a) copy, “frame” or “mirror” the Service; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Service to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Service; (d) modify, alter, adapt, arrange, or translate the Service; (e) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Service; (f) remove, alter, or conceal any proprietary rights notices displayed on or in the Service; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Service; (h) make a derivative work of the Service, or use it to develop any service or 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 Service; (j) employ any hardware, software, device, or technique, or (k) take any action that imposes or may impose (as determined in Company’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. When using the Clarifruit API the customer (l) will not exceed 50 API invocations per day, with a rate not higher than 1 invocation per second and a total of up to 1000 inspections per API call. Customer is limited to exporting inspections in a date range going back up to 12 months from API invocation time. Within that range, each export query may request a maximum period of 3 months. Monthly inspections can be exported up to 5 times.
  6. Intellectual Property Rights.
    6.1 As between the Parties, Company is, and shall be, the sole and exclusive owner of all intellectual property rights in and to: (a) the Service and all related software and intellectual property therein; and (b) any and all improvements, derivative works, and/or modifications of/to the foregoing, regardless of inventorship or authorship. Customer shall make, and hereby irrevocably makes, all assignments necessary or reasonably requested by Company to ensure and/or provide Company the ownership rights set forth in this paragraph. Nothing herein constitutes a waiver of Company’s intellectual property rights under any law.

    6.2 If Company receives any feedback (which may consist of questions, comments, suggestions or the like) regarding any of the Service and/or any other services provided herein (collectively, “Feedback”), all rights, including intellectual property rights in such Feedback shall belong exclusively to Company and such shall be considered Company’s Confidential Information. Customer hereby irrevocably and unconditionally transfers and assigns to Company all intellectual property rights it has in such Feedback and waives any and all moral rights that Customer may have in respect thereto. It is further understood that use of Feedback, if any, may be made by Company at its sole discretion, and that Company in no way shall be obliged to make use of the Feedback.

    6.3 Any anonymous information, which is derived from the use of the Services (i.e., metadata, aggregated and/or analytics information and/or intelligence relating to the operation, support, and/or Customer’s use, of the Service) which is not identifiable information and which does not specifically identify Customer or any User (“Analytics Information”) may be freely used by Company without any restriction for providing and improving the Service, and for development and statistical purposes.

    6.4 While using the Services, certain data, such as personal data or other data, will be made available and/or accessible to Company by Service (the “Customer Data”). Customer hereby grants Company and its affiliates a worldwide, non-exclusive, non-assignable (except as provided herein), non-sublicensable (except to Company’s subcontractors, if applicable), non-transferable right and license, to access and use the Customer Data, including without limitation for Company’s provision of the Services and related services hereunder. As the exclusive owner of the Customer Data, Customer represents, warrants and covenants that Customer has received and/or obtained any and all required consents or permits and has acted in compliance with any and all applicable privacy laws, including, without limitation, to allow Company to receive, transfer and/or use the Customer Data solely in order to perform the Service. Company may however be required to disclose the Customer Data: (a) to satisfy any applicable law, regulation, legal process, subpoena or governmental request; or (b) to collect, store, transfer, and/or process the Customer Data through Company’s affiliates, subsidiaries, third party service providers and vendors as reasonable necessary to provide the Services. Company’s collection and processing of any personal data included as part of the Customer Data shall be governed by Company privacy policy, available at: https://www.clarifruit.com/privacy-policy/.

  7. Third Party Components. The Service uses certain third party open source software, files, libraries or components that are subject to third party open source license terms. A list of such components shall be made available upon request, and may be updated from time to time by Company. Company makes no warranty or indemnity hereunder with respect to any third party open source software.
  8. Confidentiality. Each Party may have access to certain non-public information and materials of the other Party, in any form or media, including without limitation trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, and any other information that a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party’s Confidential Information from disclosure to a third party. The receiving Party’s obligations under this Section ‎‎8, with respect to any Confidential Information of the disclosing Party, shall not apply to and/or shall terminate if such information: (a) was already lawfully known to the receiving Party at the time of disclosure by the disclosing Party; (b) was disclosed to the receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the receiving Party has become, generally available to the public; or (d) was independently developed by the receiving Party without access to, use of, or reliance on, the disclosing Party’s Confidential Information. Neither Party shall use or disclose the Confidential Information of the other Party except for performance of its obligations under this Agreement (“Permitted Use”). The receiving Party shall only permit access to the disclosing Party’s Confidential Information to its respective employees, consultants, affiliates, agents and subcontractors having a need to know such information in connection with the Permitted Use, who either (i) have signed a non-disclosure agreement with the receiving Party containing terms at least as restrictive as those contained herein; or (ii) are otherwise bound by a duty of confidentiality to the receiving Party at least as restrictive as the terms set forth herein; in any event, the receiving Party shall remain liable for any acts or omissions of such persons. The receiving Party will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that it promptly notifies the disclosing Party in writing of such required disclosure to enable disclosing party to seek a protective order or otherwise prevent or restrict such disclosure and cooperates reasonably with disclosing Party in connection therewith. All right, title and interest in and to Confidential Information is and shall remain the sole and exclusive property of the disclosing Party.
  9. Representations, Warranties and Disclaimers.
    9.1 Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law.

    9.2 Company warrants that, when using the Service in accordance with this Agreement, the Service shall substantially perform in conformance with its Documentation. As Customer’s sole and exclusive remedy and Company’s sole liability for breach of this warranty, Company shall use commercially reasonable efforts to repair the Service. The warranty set forth herein shall not apply if the failure of the Service results from or is otherwise attributable to: (i) repair, maintenance or modification of the Service by persons other than Company or its authorized contractors; (ii) accident, negligence, abuse or misuse of the Service; (iii) use of the Service other than in accordance with the Documentation; or (iv) the combination of the Service with equipment or software not authorized or provided by Company.

    9.3 OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND ANY RESULTS OR OUTPUTS RESULTING THEREFROM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. COMPANY DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING ANY CONTENT, INFORMATION, OR RESULTS THAT CUSTOMER OBTAIN THROUGH THE SERVICE. CUSTOMER’S USE OF AND RELIANCE UPON THE SERVICE CONTENT AND ITS DATA AND ANY MARKETPLACE MATERIALS IS ENTIRELY AT CUSTOMER SOLE DISCRETION AND RISK, AND COMPANY SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER TO CUSTOMER IN CONNECTION WITH ANY OF THE FOREGOING. COMPANY WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO PUBLIC NETWORKS OR CUSTOMER’S HOSTING PROVIDER.

  10. LIMITATION OF LIABILITY.
    WITHOUT DEROGATING FROM COMPANY’S INDEMNIFICATION OBLIGATION UNDER SECTION ‎‎‎11 AND EXCEPT FOR ANY DAMAGES RESULTING FROM EITHER PARTY’S WILLFUL MISCONDUCT OR CUSTOMER’S MISAPPROPRIATION OF COMPANY’S INTELLECTUAL PROPERTY; (I) NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, REPUTATION, PROFITS, DATA, OR DATA USE, OR THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES; (II) EITHER PARTY’S MAXIMUM LIABILITY FOR ANY AND ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID OR PAYABLE TO COMPANY BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. FOR CLARITY, THE LIMITATIONS IN THIS SECTION DO NOT APPLY TO PAYMENTS DUE TO COMPANY UNDER THIS AGREEMENT (INCLUDING ITS EXHIBITS).
  11. Indemnification.
    11.1 Company agrees to defend, at its expense, any third party action or suit brought against Customer alleging that the Service, when used as permitted under this Agreement, infringes intellectual property rights of a third party (“IP Infringement Claim”); and Company will pay any damages finally awarded by court against Customer that are attributable to any such IP Infringement Claim, provided that (i) Customer promptly notifies Company in writing of such claim; and (ii) Customer grants Company the sole authority to handle the defense or settlement of any such claim and provides Company with all reasonable information and assistance in connection therewith, at Company’s expense. Company will not be bound by any settlement that Customer enters into without Company’s prior written consent.
    11.2 If the Service becomes, or in Company’s opinion is likely to become, the subject of an IP Infringement Claim, then Company may, at its sole discretion: (a) procure for Customer the right to continue using the Service; (b) replace or modify the Service to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot be accomplished despite Company’s reasonable efforts, then Company may terminate this Agreement upon written notice to Customer, and Customer shall be entitled to receive a pro-rated refund of any prepaid Fees based on the remaining period of the corresponding Subscription Term(s).

    11.3 Notwithstanding the foregoing, Company shall have no responsibility for IP Infringement Claims resulting from or based on: (i) Company’s compliance with Customer’s instructions or specification; or (ii) modification, combination or use of the Services without Company’s authorization or approval, or with equipment, devices or software not supplied or authorized by Company

    11.4 This Section ‎‎11states Company’s entire liability, and Customer’s exclusive remedy, for any IP Infringement Claim.

  12. Term and Termination. 
    12.1 Term. This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue in full force and effect until terminated (the “Subscription Term”).

    12.2 Termination for Convenience. Each Party may terminate this Agreement at any time by providing the other Party with a prior written notice.

    12.3 Termination for Breach. Each Party may terminate this Agreement immediately upon written notice to the other Party if the other Party commits a material breach under this Agreement and, if curable, fails to cure that breach within fifteen (15) days after receipt of written notice specifying the material breach (except that for payment defaults, such cure period will be seven (7) days.

    12.4 Termination for Bankruptcy. Each 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: (a) a receiver is appointed for the other Party or its property, which appointment is not dismissed within sixty (60) days; (b) the other Party makes a general assignment for the benefit of its creditors; (c) 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 (d) the other Party is liquidating, dissolving or ceasing normal business operations.

    Effect of Termination; Survival. Upon termination of this Agreement for any reason: (a) the Subscription shall automatically terminate, (b) Customer shall cease all access and use of the Service, and (c) Customer shall (as directed) permanently erase and/or return all Confidential Information of Company in Customer’s possession or control. Following termination, all outstanding Fees and other charges that accrued as of termination, which become immediately due and payable, and if necessary Company shall issue a final invoice therefor. It is hereby agreed that that if this Agreement is terminated, the termination of your payment obligations will take effect in the month after the month during which the termination notice was given. If you choose to end this Agreement, no refund shall be provided.  The provisions of this Agreement that, by their nature and content, must survive the termination of this Agreement in order to achieve the fundamental purposes of this Agreement (including limitation of liability) shall so survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.

  13. Miscellaneous. This Agreement, and any exhibits attached or referred hereto, represents the entire agreement between the Parties concerning the subject matter hereof, replaces all prior and contemporaneous oral or written understandings and statements, and may be amended only by a written agreement executed by both Parties. Any terms and conditions printed, or linked to, within any Customer’s purchase order which are in addition to and/or inconsistent with the terms and conditions of this Agreement, shall be of no effect. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach shall not be deemed a waiver by that Party as to subsequent enforcement or actions in the event of future breaches. Any waiver granted hereunder must be in writing. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect and such provision shall be reformed only to the extent necessary to make it enforceable. Any use of the Service by an agency, department, or other entity of the United States government shall be governed solely by the terms of this Agreement. Company may use the trademarks, service marks, trade names, service names, logos or other brand designations of Customer in any promotional material or other public announcement or disclosure to state that Customer is a customer of Company. Except as stated otherwise herein, this Agreement is for the sole benefit of the Parties hereto and nothing herein, express or implied, shall give, or be construed to give, any rights hereunder to any other person. Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, this Agreement may be assigned upon written notice by either Party in connection with a merger, consolidation, sale of all of the equity interests of such Party, or a sale of all or substantially all of the assets of the Party to which this Agreement relates. Without derogating from and subject to the abovementioned, this Agreement will bind and benefit each Party and its respective successors and assigns. This Agreement shall be governed by and construed under the laws of the State of Israel, without reference to principles and laws relating to the conflict of laws. The competent courts of the city of Tel Aviv-Jaffa shall have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement. Notwithstanding the foregoing, each Party may seek equitable relief in any court of competent jurisdiction in order to protect its proprietary rights. Each Party irrevocably waives its right to trial of any issue by jury. This Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party. Company will not be liable for any delay or failure to provide the Service resulting from circumstances or causes beyond the reasonable control of Company including, but not limited to on account of strikes, shortages, riots, insurrection, fires, flood, storms, explosions, acts of God, war, government or quasi-governmental authorities actions, riot, acts of terrorism, earthquakes, explosions, power outages, pandemic or epidemic (or similar regional health crisis), or any other cause that is beyond the reasonable control of Company. Notices to either Party shall be deemed given (a) four (4) business days after being mailed by airmail, postage prepaid, (b) the same business day, if dispatched by facsimile or electronic mail before 13:00 hour (Israel time) and sender receives acknowledgment of receipt, or (c) the next business day, if dispatched by facsimile or electronic mail after the hour 13:00 (Israel time) and sender receives acknowledgment of receipt. This Agreement may be executed in electronic counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same agreement.

Last Updated: May 2024

EXHIBIT A

SERVICE LEVEL AGREEMENT

This Exhibit describes the performance standards and service levels to be achieved by Company in providing the Service:

  1. Definitions.  Except as provided in this Exhibit, capitalized terms shall have the meanings set forth in the body of the Agreement. The following terms, when used in this Exhibit, shall have the following meanings:
    (A) “Available” means the Service shall: (i) be available for access and use over the Internet by the Customer; and (ii) provide the functionality required under the Agreement.
    (B) “Host” shall be Amazon Web Services (“AWS”). 
    (C) “Critical Hours” means 8:00 a.m. to 5:00 p.m. Central European Time, Monday through Friday.
    (D) “Server” shall mean the server(s) on which the Service will be hosted.
  2. General Hosting Obligations.  In addition to the other obligations set forth in the Agreement and this Exhibit, Company shall do the following, each Company’s cost and expense:
    A. Operate the Service on a Server owned and maintained by Company or the Host. 
    B. Allow access to the Service over the Internet and provide secure and confidential storage of all information transmitted to and from the Service.
  3. Change of Host.  In the event that during the Subscription Term, Company desires to transition to a new Host, Company shall provide the Customer with at least sixty (60) days prior written notice of the transition.  Company shall reasonably cooperate with the Customer in evaluating the security and performance of the proposed new Host.
  4. SaaS Service Monitoring & Management.  Company will perform continuous monitoring and management of the Service to optimize availability of Service.  Included within the scope of this section is the proactive monitoring of the Server and all service components of Company’s firewall for trouble, and the expedient restoration of components when failures occur within the time period set forth in this Exhibit. 
  5. Backups.  Company shall provide for both the regular back-up of standard file systems relating to the Server and Service, and the timely restoral of such data on request by the Customer due to a site failure.  In particular, Company shall perform daily full back-ups.
  6. Service Levels.
    A. Availability During Critical Hours.  The Service shall be Available at least 99 % of the time during Critical Hours each month of the Subscription Term, excluding periods of scheduled outage as permitted under Section 7. 
    B. Availability During Non-Critical Hours.  The Service shall be Available at least 97% of the time during non-Critical Hours each month of the Subscription Term, excluding periods of scheduled outage as permitted under Section 7. 
    C. Response.  The following response requirements apply to the Service.

Table 1. Below defines standard priority classifications that the Customer shall use to classify each problem reported to Company.  Response Time describes the window in which Company shall communicate an explanation of the nature of the problem to the Customer.  Company shall make best efforts to resolve issues within a reasonable resolution timeframes.

If Company reasonably disagrees with the classification assigned to a problem by the Customer, Company may escalate the disagreement to the appropriate Customer personnel for resolution.

Table 1.   Standard Priority Classifications:

PRIORITY DESCRIPTION OF PROBLEM RESPONSE TIME
Critical
All or a material part of the Service are down, making system unusable or inaccessible; no work around available;
4 working hours
High
Part of the Service are down causing serious delayed response or limited system use and work around is unavailable;
12 hours
Medium
Service continue functioning (may be as a result of implementing a work around) though operational impact is being encountered;
1 business day
Normal
Minor defect not impacting general usability of the Service, data integrity or response time of the Service.
2 business days

7. Service Outages.  
(A) Scheduled.  Company shall notify the Customer of scheduled outages at least twenty-four (24) hours in advance, and such outages shall last no longer than one hour and shall be scheduled outside of the critical hours.  Company may request extensions of scheduled down time above one (1) hour, and such approval by Customer may not be unreasonably withheld or delayed.  
(B) Unscheduled.  Unscheduled outages are caused by loss of connectivity to the Internet, or by failure of the Company service.  In cases where a destination is not available, or unacceptable service is reported, Company will attempt to determine the source of the problem and report its findings to Customer. 
(C) Corrective Action.  Immediately upon notice of un-Availability, Company personnel shall:

    • Confirm (or disconfirm) the outage by a direct check of the facility; 
    • If confirmed, take such action as may restore the service in one hour or less, or, if determined to be a telecommunications company problem, notify Customer of such and suggest to open a trouble ticket with their telecommunications company carrier;
    • Notify the person designated by Customer by telephone or email according to predefined procedures that an outage has occurred, providing such details as may be available, including the trouble ticket number if appropriate and time of outage; 
    • Work the problems until resolution, escalating to management or to engineering as required;
    • Promptly notify Customer of final resolution, along with any pertinent findings or action taken. 

EXHIBIT B

Information Security Standards

The following terms apply to the Service and SaaS Environment.

  1. Data Center & Network Security
    (A) Data Centers
    • Infrastructure.  Clarifruit maintains geographically distributed data centers owned and managed by the Host, storing all production data in physically secure data centers. Data center electrical power systems are designed to be fully redundant and maintainable without impact to operations, 24 hours a day, and 7 days a week. The following described the activities takes by AWS to secure and control the data centers: https://aws.amazon.com/compliance/data-center/controls/
    • Server Operating Systems. Amazon Linux servers customized for Clarifruit’s environment.  The Plaform’s Data is stored using Clarifruit proprietary methods and includes several distinct servers with enough CPU, RAM and hard disk capacity to suffice for proper operation of its role in the platform infrastructure. 
    • Businesses Continuity. Clarifruit shall maintain or cause to be maintained disaster avoidance procedures designed to ensure that interruption to the Service during any disaster is minimized and/or that Service may be restored promptly after such event; in each case throughout the term of this Agreement.

(B) Networks & Transmission
Data Transmission.  Data centers are typically connected via high-speed private links to provide secure and fast data transfer between data centers. Clarifruit transfers all Company Data via standard Internet protocols. 

2. Access Controls.

    • Infrastructure Security Personnel. Clarifruit shall implement and maintain technical and organizational safeguards against accidental, unlawful or unauthorized access to or use, destruction, loss, alteration, disclosure, transfer, commingling or processing of Company’s Confidential Information and Data that ensure a level of security appropriate to the risks presented by the processing of such Confidential Information and the nature of such Confidential Information, consistent with best industry practice.  Clarifruit shall implement and maintain a security policy for its personnel, and require security training as part of the training package for Clarifruit personnel.  Clarifruit’s infrastructure security personnel are responsible for the ongoing monitoring of Clarifruit’s security infrastructure, the review of the Clarifruit Service, and for responding to security incidents. 
    • Access Control and Privilege Management. Administrators and End Users must authenticate themselves via a central authentication system in order to use the Clarifruit Service.  Each application checks credentials in order to allow the display of data to an authorized End User or authorized Administrator.  Clarifruit shall take all reasonable measures to secure and defend all computers, software, databases, electronic systems (including database management systems) and networks used by or for Clarifruit to provide the Service hereunder (“Clarifruit Systems”) against others who may seek, without authorization, to disrupt, damage, modify, access or otherwise use Clarifruit Logic Systems or the information found therein.  Clarifruit shall immediately report to Company any breach of security or unauthorized access to Company’s Confidential Information through the Clarifruit Systems that Clarifruit detects or becomes aware of.
    • Internal Data Access Processes and Policies – Access Policy. Clarifruit employs a standard access management system, based on AWS best practices, to control personnel access to Clarifruit production servers, and only provides access to a limited number of authorized personnel.

3. Data Storage, Isolation & Authentication.  Clarifruit stores the Company’s Data in a multi-tenant environment on AWS-managed servers. Clarifruit logically isolates data on a per Company account basis, and each Company account will be given control over specific data sharing policies. Clarifruit logically separates data from different Companies from each other, and data for an authenticated as well as authorized End User of one company will not be displayed to another Company (unless the former End User or Administrator allows the data to be shared). A central authentication system is used across all Clarifruit Services to increase uniform security of data.

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