This Software As A Service Agreement was signed and entered on the 1 day of August, 2023 (the“Effective Date”), between Intune Communication Ltd., an Israeli Limited Liability Corporation from 5 Kinneret St. (“Hear.ai”) and the Customer whose details appear in the registration form (the“Customer”).
WHEREAS Hear.ai is the owner and operator of the Hear.ai Software as a Service platform, which services which allow the Customer to receive business intelligence from chats, calls or communications (the “Platform”); and
WHEREAS Customer wishes to receive access to the Platform and to purchase support services
during the term of this Agreement; and
WHEREAS Hear.ai wishes to provision access to the Platform to the Customer;
IT WAS AGREED THAT:
1. “Confidential Information” means any and all information, including but not limited to documentation, scientific, designs, software and software code, prototypes, product descriptions, technical or business information, ideas, discoveries, inventions, specifications, formulas, processes, programs, plans, drawings, models, network configuration and rights-of-way, requirements, standards, financial and non-financial data, marketing, trade secrets, know-how, customer lists, prices, as well as any and all intellectual and industrial property rights contained therein and/or in relation thereto; provided however, that Confidential Information may be disclosed if it (i) is or becomes lawfully in the public domain other than through a breach of any non disclosure agreement or any a confidentiality obligation, (ii) was definitely known to either party prior to the disclosure, as evidenced by its business records, (iii) is independently developed by or for the party without reference to or use of Confidential Information, (iv) is lawfully obtained by any party from a third party without violation of a confidentiality obligation, (v) Any Party agrees in writing that it may be disclosed by The Other, or (vi) is required or compelled by law to be disclosed, provided that the Party gives reasonable prior written notice to the Discloser to allow it to seek protective or other court orders.
2. “Customer Data” shall mean any data, information, files, or methods relating to the
Customer which are stored or passed through Hear.ai’s services.
3. “Platform” as defined in the preamble.
4. “Server” shall mean the Hear.ai’s Server running the Platform.
2. Provision of Web-Based Access.
Commencing on the Effective Date, Hear.ai shall provision and host on behalf of the Customer the Platform. The access to the Platform shall be provided via secure web channels and using the credentials that shall be supplied by or to Hear.ai by or from the Customer via the following method:
1. Limited Access. The Customer shall ensure that only its employees or subcontractors under specific and direct confidentiality obligations access the Platform and obtain a copy of the credentials.
2. Right to Store Customer Data. During the term of this Agreement, Hear.ai hereby provides the Customer with the right to store the Customer Data on the Platform all according to the stipulations of this Agreement.
3. Security. The Customer shall take all steps to secure the access of its employees, staff and subcontractors to the Platform and shall notify Hear.ai in any case where the confidentiality, integrity or authenticity of such credentials was compromised.
4. Bona Fide Use. Hear.ai operates a strict acceptable use policy, which a violation of may cause termination of the Customer account. The policy limits: (a) the use of the services to a reasonable level; (b) a limit on using the service with harmful content, such as content infringing on the rights of third parties or the law (c) use of the services to compete with Hear.ai; (d) reselling or relicensing the service to others; (e) use of the services to commit a crime; (f) use of the services to access unauthorized material; and (g) use of the services in an unauthorized manner; (i) use by number of users that exceed the permitted users. The Customer shall adhere to this policy at all times.
5. Further Restrictions. The Customer shall not: (i) copy, distribute or modify any part of the service without Hear.ai’s prior written authorization; (ii) use, modify, create derivative works of, transfer (by sale, resale, license, sublicense, download or otherwise), reproduce, distribute, display or disclose a part of the services, except as expressly authorized herein; (iii) disrupt servers or networks connected to the service; (iv) use or launch any automated system (including without limitation, "robots" and"spiders") to access the service; and/or (v) circumvent, disable or otherwise interfere with security-related features of the service or features that prevent or restrict use or access to the services.
3. Payment: Payment shall be made according to the rates specified by Hear.ai at the applicable dates, including the payment terms, interest rate, late fees and other relevant matters detailed in the fee schedule and payment terms.
4. Service Levels and Availability. Hear.ai shall make best efforts to achieve a service level which is equal to 99.0%, calculated on a monthly-basis. Meaning, that in each monthly cycle, Hear.ai shall make best efforts to ensure that there are no more than 223 minutes of downtime. Where downtime shall not include scheduled maintenance downtimes, network errors not relating to Hear.ai’s fault, infrastructure errors or other errors outside Hear.ai’s reasonable control.
1. Customers shall report any downtime or error in the services directly via Hear.ai’s ticketing system.
2. A critical error, which means a total unavailability of the Platform shall be reported 24/7, via email.
3. Hear.ai shall commence the repair of a critical error promptly, and no later than one business day after reporting it.
4. All other, non-critical, errors shall be reported via the ticketing system and shall be taken care of during regular business hours, according to Hear.ai’s discretion.
5. Updates and Upgrades. Hear.ai may provision updates and upgrades to the Platform. An update is a minor change that includes no visible material changes to the specifications; an upgrade is a major change that includes changes in the interface, functionality or design of the services. All updates may be applied immediately.
6. Backups. Hear.ai shall backup the contents of the Platform and the Customer Data, on one (1) archival backup that is made once every 7 days. This backup shall be kept for 30 days each time. At any point where the Customer wishes to restore a backup, it may do so by opening a ticket request. In such a case, the Customer shall assume all liability and responsibility for any material that was destroyed, deleted or run over upon such restoration. Customer also acknowledges that the backup is not for archival purposes and is only meant to be used in case of a malfunction to restore operational purposes. The Customer may create their own backups using the services.
7. Intellectual Property Rights. Hear.ai hereby represents and warrants that it holds all title, intellectual property rights, copyrights, trademarks and trade secrets in the Platform. Hear.ai is, and shall remain, the owner of all intellectual property rights in the services, the Platform and all the rights relating to them, including copyrights, trademarks, trade names, designs, patents and other intellectual property rights. Nothing in this Agreement shall convey title, ownership or
any right apart from the limited usage rights. The Customer shall be the owner of any Customer Data stored on the Platform. As the Platform generates source code materials to be implemented by the Customer in various forms, including API calls and requests, and for multiple users of the system, which may be similar in their nature and include verbatim copies of existing libraries or scripts developed by Hear.ai, All intellectual property rights in the output of the platform which shall be provided to the Customer’s under the MIT License.
8. Privacy and Data Protection. In any case where the Customer wishes that Hear.ai shall process, retain, store or otherwise receive access to Personal Data, as defined, then Hear.ai shall execute all required Data Protection Addenda as defined in the GDPR. As for Personal Data relating to the Customer and its employees using the Platform, the Privacy Policy shall apply and anything relating to the Customer’s end-users, customers or other persons shall be governed by The Data Processing Agreement.
9. Cooperation with Legal Authorities. Hear.ai’s policy is to cooperate with the requests made by competent legal authorities. Meaning, that in any case where a judicial order, a valid warrant or an authorized request from a governmental authority arises, then Hear.ai may be required to cooperate with such request and to allow this authority access to either the Platform or the backups, or to trace, circumvent or copy the activities performed. Hear.ai may provide the Customer with the details of such cooperation only after-the-fact if it is prohibited from disclosing such a request.
16. Liability. THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES AND THE PARTIES HEREBY DISCLAIM ANY OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE AND/OR USE. IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOSS OF BUSINESS PROFITS, OR BUSINESS INTERRUPTION, WHETHER OR NOT THE PARTY OTHERWISE CLAIMING SUCH DAMAGES HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN ADDITION, THE TOTAL LIABILITY OF EITHER PARTY TO THE OTHER RESULTING FROM THE PERFORMANCE OF SERVICES UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES ACTUALLY PAID BY CUSTOMER TO Hear.ai FOR THE SERVICES GIVING RISE TO THE CLAIM(S) DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM(S). THE LIMITATION OF LIABILITY SET FORTH HEREIN SHALL NOT APPLY TO CLAIMS CONCERNING CONFIDENTIALITY OR INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS SET FORTH IN THIS AGREEMENT.
17. Indemnification.
1. Each party shall indemnify and hold the other party and its officers, directors, employees, agents, successors and assigns harmless from and against all loss, liability, costs (including reasonable attorney’s fees), charges, claims or damages against any third party claim, loss, damages or liability which result from (i) the willful or negligent act of commission or omission of a party, its agents or employees, arising out of or taking place in the course of the performance of this Agreement; or (ii) any material breach of this Agreement.
2. In case any action, proceeding or claim shall be brought against one of the Parties hereto (an “Indemnified Party”) based upon any of the above claims and in respect of which indemnity may be sought against the other Party hereto (the “Indemnifying Party”) such Indemnified Party shall promptly notify the Indemnifying Party in writing.
3. The failure by an Indemnified Party to notify the Indemnifying Party of such a claim shall not relieve the Indemnifying Party of responsibility under this Section, except to the extent such failure adversely prejudices the ability of the Indemnifying Party to defend such claim. The Indemnifying Party at its expense, with counsel of its own choice, shall defend against, negotiate, settle or otherwise deal with any such claim, provided that the Indemnifying Party shall not enter into any settlement or compromise of any claim which could lead to liability or create any financial or other obligation on the part of the Indemnified Party without the Indemnified Party's prior written consent. The Indemnified Party may participate in the defense of any claim with counsel of its own choice and at its own expense.
4. The parties agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such claims. In the event that the Indemnifying Party does not undertake the defense, compromise or settlement of any claim, the Indemnified Party shall have the right to control the defense or settlement of such claim with counsel of its choosing.
18. CONFIDENTIALITY.
1. During the Term of this Agreement, each party may learn Confidential Information and parties may convey Confidential Information to each other.
2. Each Party shall use the Confidential Information disclosed by the other Party, including without limitation any information acquired by the Party from the other Party's employees or inspection of Party's property, solely for the providing or receiving the services under this Agreement.
3. Upon the expiration or termination of this Agreement and receipt of a Party’s written request, the other Party, at its option, shall promptly either (a) return to the Party all tangible forms of Confidential Information in its possession, including any and all copies and/or derivatives of Confidential Information made by either Party or their employees as well as any writings, drawings, specifications, manuals or other printed or electronically stored material based on or derived from Confidential Information, or (b) destroy Confidential Information in its possession and deliver to the Party a certification that such destruction has occurred; provided however, that other Party may retain a copy of any information, including Confidential Information that the other Party reasonably believes is required to comply with applicable laws or regulations or to effectuate the Purposes of this Agreement.
4. The Parties agree that any violation or threat of violation hereof could result in irreparable harm to the other Party for which damages would be an inadequate remedy. Therefore, in addition to its rights and remedies otherwise available by applicable law, both Parties shall be entitled to equitable relief as a court may deem proper, including injunctions, to prevent any unauthorized use, disclosure or any other breach hereof.
5. Each Party shall adhere to all applicable export laws and regulations and shall not export or re-export or otherwise transmit, directly or indirectly, any Confidential Information, or the direct product of Confidential Information, except with the applicable government export approvals or export permits.
19. TERMINATION.
1. This Agreement is for an indefinite term. Either party may terminate this Agreement without cause upon thirty (30) days prior written notice to the other party.
2. Either party may terminate this Agreement for breach of a material term or condition upon thirty (30) days’ prior written notice to the other party, provided however, that the breaching party shall have such thirty (30) days to cure the breach. If at the end of the thirty (30) day notice period, the breaching party has not cured the breach to the reasonable satisfaction of the non-breaching party, then the non-breaching party may proceed with immediately terminating the Agreement upon expiration of the thirty (30) day notice period.
3. Either party may immediately terminate this Agreement in its entirety by giving the other party written notice if the other party files in any court or agency pursuant to any statute or regulation of any state or country, a petition in bankruptcy or insolvency or for reorganization or for an arrangement or for the appointment of a receiver or trustee of
the other party or of its assets, or if the other party proposes a written agreement of composition or extension of its debts, or if the other party is served with an involuntary petition against it, filed in any insolvency proceeding, and such petition will not be dismissed within sixty (60) days after the filing thereof, or if the other party proposes or
is a party to any dissolution or liquidation, or if the other party makes an assignment for the benefit of creditors.
4. Upon termination, Customer shall immediately pay Hear.ai all outstanding payments,
and Hear.ai shall destroy all Customer Data.
20. General.
1. This Agreement shall be governed by the laws of the State of Israel, without giving effect to the principles of choice of law thereof. Any dispute arising from this Agreement shall be exclusively brought to the Tel-Aviv courts.
2. If any provision or part of any provision of this Agreement or the application thereof to any set of facts is held invalid or unenforceable by a court of competent jurisdiction, such holding shall not affect the enforceability of any other provisions or parts thereof or the application thereof to any other set of facts, and all other provisions and parts
thereof shall continue in full force and effect.
3. All notices or other communications between the parties which shall or may be given pursuant to this Agreement shall be deemed to have been sufficiently given when delivered by personal service or sent by registered mail, express delivery service or facsimile, to the contact information detailed in the signature page to this Agreement.
4. This Agreement shall not be assigned, in whole or in part, by any party hereto without the prior written consent of the other party hereto. This Agreement may be amended or modified only by a written instrument executed by authorized representatives of the parties hereto. No failure or delay by either party hereunder in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege hereunder. This Agreement may be executed in counterparts all of which taken together shall be deemed to constitute one and the same original.
