EOS CUSTOMER AGREEMENT
Last Updated: August 25, 2023
This Customer Agreement (“Agreement”) takes effect when you click an “I Accept” button or check box presented with these terms or, if earlier, when you use any of the Services (“Effective Date”) by and between the customer specified below (“Customer”, “you” or “your”) and esh OS LTD. (“EOS”, “we”, “us” or “our”).
You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. Please see Section 14 for definitions of certain capitalized terms used in this Agreement.
WHEREAS EOS is the owner of certain proprietary Services (as defined below), and WHEREAS Customer desires to receive a right to access and use the Services; and WHEREAS EOS agrees to provide to Customer access to use the Services in consideration for the Fee and in accordance with the terms and conditions set forth in this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. License; Restrictions
1.1 License. Subject to the terms of this Agreement, and for as long as the Customer and the End User (as applicable) are a Regulated Entity, EOS grants Customer a limited, revocable, non-exclusive, non-sublicensable, non-transferrable right to: (a) access and use the Services solely as part of its business purposes in accordance with this Agreement and the applicable order form entered into by the parties (b) allow End Users to access and use the Services subject to the terms set forth in this Agreement; and (c) copy and use the EOS Content solely for Customer’s permitted use of the Services.
1.2 License Restrictions. Neither Customer nor any End User may use the Service Offerings in any manner or for any purpose other than as expressly permitted by this Agreement. Neither Customer nor any End User may, or may attempt to (a) modify, alter, tamper with, repair, or otherwise create derivative works of any Content included in the Service Offerings (except to the extent Content included in the Service Offerings is provided to Customer under a separate license that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile the Service Offerings or apply any other process or procedure to derive the source code of any software included in the Service Offerings, (c) access or use the Service Offerings in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (d) resell or sublicense the Service Offerings. Customer may only use the EOS Marks in accordance with the Trademark Use Guidelines. Customer will not misrepresent the relationship between EOS and Customer (including by expressing or implying that EOS supports, sponsors, endorses, or contributes to Customer or Customer’s business endeavors).
1.3 Use of Customer Accounts. To access the Services, Customer must create one or more EOS Customer Accounts. Unless explicitly permitted by the applicable Technical Terms, Customer will only create one EOS Customer Account per email address. All EOS Customer Accounts will be covered by this Agreement.
1.4 Account Servicing. EOS is responsible for providing the Service Offerings and for all of EOS’s obligations under this Agreement with respect to EOS Customer Accounts
1.5 Third-Party Content. As part of the Service, certain Third-Party Content will be available to the Customer and End User. The Customer and End User shall not be obligated to engage with such third party provider. EOS shall not be responsible for any Third Party Content or any product or service provided by a third party provider.
1.6 Customer Affiliates. Any Customer Affiliate may use the Service Offerings under its own EOS Customer Account(s) under the terms of this Agreement by executing an addendum to this Agreement with EOS, as mutually agreed by EOS and the Customer Affiliate.
1.7 Subcontractors. If EOS uses Subcontractors, EOS will (a) disclose to Customer the identity of the Subcontractors; (b) impose contractual obligations upon its Subcontractors that are at least as protective of Customer Content as EOS’s obligations under this Agreement as appropriate based on the Subcontractor’s role and duties, including EOS’s obligations with respect to privacy and security described in Section 3, as applicable, and (c) be responsible towards Customer for any act or omission of its Subcontractors. The use of Subcontractors will not release EOS from any of its obligations under this Agreement.
2.1 EOS Security. EOS will implement reasonable and appropriate measures, as determined by EOS, for the EOS Network to help Customer secure Customer Content against accidental or unlawful loss, access or disclosure (the “Security Objectives”) in accordance with the EOS Security Standards. EOS may modify the EOS Security Standards from time to time, provided however, that EOS will continue to provide at least the same level of security as is described in the EOS Security Standards on the Effective Date. The Service Offerings enable Customer to retrieve, modify, or delete Customer Content as described in the Documentation. Once deleted as described in the Documentation, Customer Content shall be unreadable.
2.2 Data Privacy. Customer shall be entitled to select from the EOS regions the region, or regions, in which Customer Content will be stored. Customer consents that EOS shall be entitled to transfer and store such Customer Content to the EOS region(s) the Customer selected. EOS will not access or use Customer Content except as necessary to maintain or provide the Service Offerings, or as necessary to comply with any Applicable Law or a binding order of a governmental body. EOS will not (a) disclose Customer Content to any governmental entity or a third party, or (b) subject to Section 3.3, move Customer Content from the EOS regions selected by Customer, except as necessary to comply with any Applicable Laws or a binding order of a governmental body. Customer hereby agrees and acknowledges that EOS will only use Account Information in accordance with the Privacy Policy. For clarification, the terms of this Agreement and not the Privacy Policy apply to Customer Content.
2.3 Service Attributes. To provide billing and administration services, EOS may process Service Attributes in the EOS region(s) where Customer uses the Service Offerings and the EOS regions in other locations. To provide Customer with support services initiated by Customer and investigate fraud, abuse or violations of this Agreement, EOS may process Service Attributes where EOS maintains its support and investigation personnel.
2.4 Information Security Program. EOS will implement, whether by itself or by using qualified Subcontractors, and maintain an information and security program designed to provide at least the same level of protection as:
(a) System Organization Controls 1, Type 2 report ("SOC 1 Report") and System Organization Controls 2, Type 2 report (for availability/security and confidentiality) ("SOC 2 Report", together with the SOC 1 Report, the "SOC Reports"). For the avoidance of doubt, it will not constitute a breach of EOS's obligations pursuant to this Section if certain non-compliances are identified in any SOC Report (or their successor or alternatives), provided that EOS has taken appropriate steps, in its sole discretion, to remedy such non compliances;
(b) Certification under ISO 27001; and
(c) Its status as a Level 1 service provider under PCI DSS (together with the ISO 27001, the "Certifications") or, in each case, such alternative industry standard reports or certifications that are its successor or reasonable alternative (provided that they are at least as protective as the standards set out above) as determined by EOS (together, the "EOS Information Security Program").
Customer may, at no additional charge, directly access and download copies of SOC 1 Report, SOC 2 Report, ISO 27001 and PCI DSS certifications through the EOS Site. In the event that such are not available for any reason, Customer may request copies of EOS' security and compliance reports directly from EOS.
2.5 Audits of Technical and Organizational Measures. Upon Customer’s request, EOS will provide to Customer a copy of the SOC 1 Report or such alternative industry standard reports or certifications that are substantially equivalent as reasonably determined by EOS. Such SOC 1 Report shall deemed Confidential Information under this Agreement.
2.6 Penetration Testing. Customer has the right to conduct penetration testing in accordance with EOS’s Penetration Testing Policy. Requests will be made in the manner described by the Penetration Testing Policy, or in such other manner as shall be determined EOS.
2.7.1 To the extent required under Applicable Law, EOS will provide the Regulator, the Regulated Entity and the Auditor (each a “Requester”) with the right to audit EOS’s security management controls for the Services and the EOS Network (“Right of Access and Audit”), as required for compliance with Applicable Law. A request for a Right of Access and Audit shall be made solely through the EOS Site. The Customer shall bear the cost of any execution of the Right of Access and Audit under this Section.
2.7.2 The Requester will exercise the Right of Access and Audit and EOS will co-operate with the Requester in accordance with the following:
2.7.3 The Requester will provide EOS with reasonable advance Notice of its intent to exercise the Right of Access and Audit (taking into account the nature and scope of the request).
2.7.4 The Requester will exercise the Right of Access and Audit solely as required for compliance with Applicable Law.
2.7.5 Requester must verify that its personnel performing the audit shall have the required e skills and professional knowledge to perform the Right of Access and Audit appropriately.
2.7.6 If the Requester’s exercise of the Right of Access and Audit could, in EOS’s reasonable discretion, create a risk for another EOS Customer, EOS will propose the Requester an alternative to address the Right of Access and Audit which shall provide Requester a similar level of assurance, and Requester shall not unreasonably reject such alternative proposal.
2.7.7 The Right of Access and Audit will be subject to applicable EOS Policies, as may be updated by EOS from time to time. During an onsite visit to EOS premises, Requester will comply at all times with Applicable Laws and regulations. Requester shall use all reasonable efforts to comply with EOS's requests so as to minimize any disruption to EOS's business by such audit.
3.1 Confidential Information. During the Term, each party may have access to certain non-public proprietary, confidential or trade secret information or data of the other party, whether furnished before or after the Effective Date, and regardless of the manner in which it is furnished, which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (together, the "Confidential Information").
3.2 Confidentiality Obligations. The receiving party agrees: (a) not to disclose the disclosing party’s Confidential Information to any third parties other than to its, directors, officers, employees, advisors or consultants, and in the case of Customer, End Users which are Regulated Entities (collectively, the "Representatives") on a strict “need to know” basis only and provided that such Representatives are bound by written agreements to comply with the confidentiality obligations as protective as those contained herein; (b) not to use or reproduce any of the disclosing party’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; (c) to keep the disclosing party’s Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care. Notwithstanding the foregoing, if receiving party is required by legal process or any applicable law, rule or regulation, to disclose any of disclosing party’s Confidential Information, then prior to such disclosure, receiving party will give prompt written notice to disclosing party so that it may seek a protective order or other appropriate relief, unless the receiving party is prohibited from providing such notice pursuant to Applicable Law.
3.3 Disclosure to End Users. End Users which are Regulated Entities may directly access and download SOC Reports and Certifications via EOS Site (or an alternative method), and other Confidential Compliance Information of EOS (excluding SOC Reports, Certifications and any other information from, referring to or otherwise included in the EOS Information Security Program) and such may be disclosed by Customer to End Users which are Regulated Entities provided that such End User has agreed to hold such information in confidence pursuant to a binding non-disclosure agreement with EOS. Customer will promptly provide EOS with written Notice of any disclosures made by Customer under this Section 4.3. Notwithstanding the foregoing, audit findings under Section 3.7 which are made available to EOS under this Agreement may be disclosed by EOS, provided that (1) EOS does not include any reference to Customer, the Regulator and/or their agents in such disclosure, and (2) such disclosure is not prohibited by Applicable Law.
3.4 Confidential Agreement. The content of this Agreement will be treated as Confidential Information and will not be disclosed by either party, provided however, that the terms of this Agreement may be disclosed by Customer to a Regulator, if the Customer obtains confidential treatment or similar protections from the Regulator.
3.5 Exclusions. Confidential Information shall exclude any information that (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of receiving party; (ii) the receiving party can demonstrate in its records to have had rightfully in its possession prior to disclosure of the Confidential Information by the disclosing party; (iii) receiving party rightfully obtains from a third party who has the right to transfer or disclose it, without default or breach of this Agreement; (iv) the receiving party can demonstrate in its records to have independently developed, without breach of this Agreement or any use of or reference to the Confidential Information.
3.6 Consequences of Termination. Upon termination of this Agreement, or upon request of the disclosing party, receiving party shall permanently delete or return to disclosing party any information disclosed in any tangible form and all copies thereof (on whatever media such information may be stored) containing any of the Confidential Information. In such case, the receiving party will provide the disclosing party with a written confirmation confirming that all Confidential Information has been destroyed or otherwise deleted. The receiving party may fulfill its obligations under this sub-section by anonymizing the data, provided that after destroying or anonymizing such Confidential Information, it shall not include any personal information or be identifiable as data relating to any person or organization an such identifying cannot be reversed engineered or otherwise inferred from the anonymized data. To the extent that receiving party is legally required to maintain a copy of the Confidential Information, it may retain one copy, in confidence, in accordance with this Agreement. The parties' obligations with respect to Confidential Information that is not Customer Content shall expire five years from the date of termination or expiration of this Agreement, unless a longer period of protection applies under applicable law, either as trade secret information, personal information or otherwise. For avoidance of doubt, confidentiality obligations with respect to Customer Content shall not expire.
4. Customer Responsibilities
4.1 Customer Content. Customer is solely responsible for the development, operation, maintenance, and accuracy of Customer Content. Customer warrants that Customer Content will not violate any third party intellectual property rights, the Policies or any applicable law, including any privacy laws and such Customer Content shall not include any portion of content that is illegal, obscene, harmful, fraudulent, infringing or offensive. In addition, Customer warrants that Customer Content shall not include any content that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, or data, including viruses, Trojan horses, worms, or time bombs.
4.2 Prohibited Activities. Customer shall not use, directly or indirectly the Services or the EOS Site: (i) for any illegal activities, in a manner that violates the rights of others, or that may be harmful to others, or may reflect badly on EOS; (ii) for any activity that violates any applicable law; (iii) to probe, scan, or test the vulnerability of the Services or the EOS Site; or (iv) distribute, publish, send, or facilitate the sending of unsolicited mass e-mail or other messages, promotions, advertising, or solicitations (like “spam”), including commercial advertising and informational announcements. Customer acknowledges and agrees that if any breach or suspected breach of Sections 5.1 or 5.2 above occurs, EOS shall have the right to investigate such violations, remove, disable access to, or modify any content or resource that violates this Agreement, and report such incident to regulation to appropriate law enforcement officials, regulators, or other appropriate third parties, at EOS's discretion.
4.3 Customer’s Security and Redundancy. For all sensitive or otherwise valuable Customer Content EOS recommends that Customer shall use strong security and redundancy features. Customer is solely responsible for protecting Customer Content and properly configuring and using the Service Offerings in a manner that provides appropriate security and redundancy of its EOS Customer Accounts and Customer Content, as shall be communicated to the Customer.
4.4 Log-In Credentials and Account Keys. EOS log-in credentials and private keys generated by the Services are for Customer’s internal use only and Customer may not sell, transfer or sublicense them to any other entity or person, except that Customer may disclose its private key to its agents and subcontractors (including any of its Affiliates who are acting as an agent or subcontractor of Customer) performing work on behalf of Customer. Customer is responsible for all activities that occur under its EOS Customer Accounts, except to the extent caused by EOS’s breach of this Agreement.
4.5 End Users. If Customer uses the Services to provide services to, or otherwise interact with, End Users, then Customer, and not EOS, will have the relationships (e.g., via executed contracts between Customer and End Users or via online terms of service) with End Users. Customer is fully and exclusively responsible for End Users’ use of Customer Content and the Service Offerings. To the extent that Customer enables End Users to access the Services or Customer Content, Customer will ensure that all End Users comply with any applicable obligations of Customer under this Agreement and that any terms of any agreement of Customer with each End User are not inconsistent with this Agreement. Customer is responsible for providing customer service (if any) to End Users.
5.1 Service Offerings. EOS may change or discontinue any of the Service Offerings from time to time. Notwithstanding, for any EOS Customer Accounts in the level of “Developer Support Level” and above, EOS will provide at least 24 months prior Notice to Customer if EOS decides to discontinue a Service that it makes generally available to its customers and that Customer is using. EOS will not be obligated to provide Notice under this Section if the discontinuation is necessary to address an emergency or threat to the security or integrity of EOS, respond to claims, litigation, or loss of license rights related to third-party intellectual property rights, or comply with the law or requests of a government entity. Where EOS is excused from providing Notice under this Section, EOS will use commercially reasonable efforts to provide as much advance Notice to Customer as is reasonably practicable under the circumstances (which Customer acknowledges may be no prior notice).
5.2 Development. EOS, at the request of the Customer shall provide certain Developments as part of the Service. The parties will mutually agree to discuss the costs and specifications of such Development.
5.3 Service Level Agreements. EOS may change Service Level Agreements from time to time, provided however, that EOS will provide 12 months prior Notice to Customer before materially reducing any benefits offered to Customer under any Service Level Agreement(s).
6. Fees and Payment
6.1 Fees and Payment Terms. Unless otherwise stated on the EOS Site, EOS will issue an invoice to Customer at the end of each calendar month with respect to all applicable fees and charges related to the Service Offerings, as described on the EOS Site, during the month (the "Fee"). Customer will pay EOS all invoiced amounts within 30 days of the date of the invoice (other than Disputed Amounts).
6.2 Disputed Amounts. With respect to Disputed Amount, Customer will provide Notice to EOS, including the information relating to the dispute (including any supporting documentation), and the parties will meet within 30 days of the date of the Notice to resolve the dispute in good faith. Customer will pay, without any delay, any portion of the Fee which is not a Disputed Amount. If the parties fail to resolve the dispute in good faith within such 30 day period, EOS may, at its option, suspend (in full or in part) Customer’s or any End User’s right to access or use the Service Offerings until the dispute is resolved, provided that such suspension shall apply solely to account which are the subject matter of the Disputed Amount.
6.3 No Set Off. All amounts payable by Customer under this Agreement will be paid to EOS without any setoff and without deduction or withholding, provided that Disputed Amounts will be handled as set forth above.
6.4 Pricing. EOS may increase or add new fees and charges provided that such increase shall not exceed 5% for any existing Service by giving Customer at least 60 days’ prior Notice. EOS shall notify the Customer on Price increase which is above 5% or a material change in the pricing model in writing, one year in advance.
6.5 Late Payment. Amounts that are not paid in accordance with the terms stated in this Agreement will be subject to a late charge of 1.5% per month, compounded monthly, until paid in full, subject to a seven day grace period.
6.6 Taxes. All amounts payable to EOS are exclusive of all Taxes, levies or similar governmental charges, however designated, including penalties and interest imposed by any jurisdiction, except for taxes based on the net income of EOS. If under applicable law taxes are required to be withheld, Customer shall pay EOS an amount such that the net amount after withholding of Taxes shall equal the amount that would have been otherwise payable under this Agreement.
7. Temporary Limitation of Access and Use Rights. EOS may temporarily suspend (in full or in part, as set forth above) Customer’s or any End User’s right to access or use the Service Offerings upon Notice to Customer (which will be reasonable prior notice unless EOS reasonably believes immediate suspension is necessary) if EOS reasonably determines that Customer’s or an End User’s use of the Service Offerings poses a security risk or threat to the function of the Service Offerings, or poses a security or liability risk or threat to EOS, its Affiliates or any third party. EOS will only suspend Customer’s right to access or use the portions of the Service Offerings that caused the security or liability risk or threat. EOS will restore Customer’s access and use rights promptly after Customer has resolved the issue giving rise to the suspension. Customer shall remain liable for all Fees payable to EOS for such portions of the Service Offerings that shall continue to be used during the period of suspension (including Service Offerings that Customer does not have access to as a result of such suspension). Upon Customer’s prior written request, EOS will discuss with Customer the cause of the suspension. Notwithstanding the foregoing, EOS will not limit access or use rights of the Service Offering if, following Customer's receipt of notice from EOS, Customer resolves the issue giving rise to the suspension prior to the date on which EOS intended to suspend Customer's access or use rights.
8.1 Term. The Term will commence on the Effective Date and will remain in effect until terminated pursuant to this Agreement. Any Notice of termination of this Agreement must include a Termination Date, as applicable under this Section.
8.2 Termination for Convenience. Customer may terminate this Agreement for any reason by providing EOS Notice. EOS may terminate this Agreement for any reason by providing Customer at least two years’ Notice.
8.3 Termination due to Material Breach. Either Customer or EOS may terminate this Agreement for cause if the other is in material breach of this Agreement and the material breach remains uncured for a period of 30 days from receipt of Notice from the non-breaching party.
8.4 Termination by EOS. EOS may terminate this Agreement for cause (a) upon 90 days’ Notice to Customer if EOS has suspended the Service Offerings under Section 8 and Customer has not cured the breach within such 90 day period, or (b) upon 30 days Notice to Customer upon Customer's breach of an applicable law or requirements of governmental entities which is not cured within such 30 days period.
8.5 Effect of Termination. Upon the Termination Date:
8.5.1 All of Customer’s rights under this Agreement shall immediately terminate, except as set forth in Section 9.6 below;
8.5.2 Customer remains responsible for all Fees Customer has incurred until the Termination Date;
8.5.3 Customer will immediately return or, if instructed by EOS, destroy all EOS Confidential Information in Customer’s possession; and
8.5.4 Sections 4, 9.5, 9.6, 10, 11.2, 11.4, 12.3, 13 and 14 will survive the termination of this Agreement in accordance with their terms.
8.6 Post-Termination Support and Retrieval of Customer Content. EOS will comply with the obligations set out in this Section in order to support Customer in the orderly transfer of the Customer’s Content. Following the Termination Date, EOS will provide Customer with at least a 180 day period during which it will not take any action to remove Customer Content as a result of the termination from any EOS Customer Account that is open on the Termination Date. In addition, during such period, EOS will allow Customer to retrieve any remaining Customer Content from the Services, unless (i) prohibited by law or the order of a governmental or regulatory body or it could subject EOS or its Affiliates to liability, or (ii) Customer has not paid all amounts due under this Agreement, other than Disputed Amounts. For any use of the Services during such period, the terms of this Agreement will apply and Customer will pay the applicable fees at the rates under Section 6 (including, without limitation, applicable fees for storage). No later than the end of this 180 day period, Customer will close all EOS Customer Accounts.
9. Proprietary Rights
9.1 EOS Proprietary Rights. EOS or its licensors own all right, title, and interest in and to the Services, including all related intellectual property rights therein. Customer obtains no rights under this Agreement from EOS, its Affiliates, or their licensors to the Service Offerings, including without limitation any related intellectual property rights therein.
9.2 Customer Content. As between Customer and EOS, Customer (or Customer’s licensors) own all right, title, and interest in and to Customer Content. Except as provided in this Agreement, EOS obtains no rights under this Agreement from Customer (or Customer’s licensors) to Customer Content. Some EOS Content may be provided to Customer under a separate license, such as Apache License, Version 2.0, which will be identified to Customer. In any such case, such license will govern Customer’s use of that EOS Content.
9.3 Suggestions. If Customer elects to provide any Suggestions to EOS or its Affiliates, EOS and its Affiliates will be entitled to use the Suggestions without restriction.
10.1 EOS Indemnification. Subject to Section 13, EOS will defend Customer and its employees, officers, and directors against any finally awarded or settled third-party claim alleging that the Services infringe or misappropriate that third party’s intellectual property rights. Such indemnification shall be Customer's sole and exclusive remedy for any third-party claims of infringement or misappropriation of intellectual property rights.
10.2 Customer Indemnification. Customer will defend EOS, its Affiliates, and their respective employees, officers, and directors against any third-party claim where the basis to such claim is Customer's breach of any of its obligations under this Agreement.
10.3 Infringement. For any claim covered by Section 11.1, EOS will, at its discretion, either: (i) procure the rights to use that portion of the Services alleged to be infringing; (ii) replace the alleged infringing portion of the Services with a non-infringing alternative; (iii) modify the alleged infringing portion of the Services to make it non-infringing; or (iv) terminate the allegedly infringing portion of the Services or this Agreement.
10.4 Indemnification Process. The obligations under this Section 11 will apply only if the party seeking defense, payment or indemnity from other party: (a) gives that party prompt Notice of the claim; (b) gives the indemnifying party sole control over the defense and settlement of the claim; and (c) reasonably cooperates with the indemnifying party (at the indemnifying party’s expense) in the defense and settlement of the claim. In no event will EOS or Customer agree to any settlement of any claim that involves any commitment, other than a monetary settlement (for a consent shall not be required), without the written consent of the other party.
11. Warranties
11.1 EOS Warranties. EOS represents and warrants to Customer that the Services will perform substantially in accordance with the Specifications.
11.2 Mutual Warranties. Customer and EOS each represents and warrants to the other that (a) it has full power and authority to enter into and perform this Agreement, (b) the execution and delivery of this Agreement has been duly authorized, (c) it will comply with all Applicable Laws, rules, regulations and ordinances in the performance of this Agreement (and, in the case of Customer, the use of the Service Offerings), and (d) its performance hereunder does not breach any other agreement to which it is bound.
11.3 Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND EXCEPT TO THE EXTENT PROHIBITED BY LAW, EOS, ITS AFFILIATES AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SERVICE OFFERINGS OR THE THIRD-PARTY CONTENT, AND DISCLAIM ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (A) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (B) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (C) THAT THE SERVICE OFFERINGS OR THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE, OR FREE OF HARMFUL COMPONENTS, AND (D) THAT ANY CONTENT, INCLUDING CUSTOMER CONTENT OR THIRD-PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.
12. Limitations of Liability and insurance
12.1 EXCEPT FOR PAYMENT OBLIGATIONS ARISING UNDER FRAUD, OR WILLFUL MISCONDUCT IN PERFORMANCE OF A PARTY’S OBLIGATIONS UNDER THIS AGREEMENT, NEITHER EOS NOR CUSTOMER, NOR ANY OF THEIR AFFILIATES OR LICENSORS, WILL BE LIABLE TO THE OTHER UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR (A) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES,(B) LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, OR GOODWILL, OR (c) UNAVAILABILITY OF THE SERVICE OFFERINGS (THIS DOES NOT LIMIT ANY SERVICE CREDITS THAT MAY BE AVAILABLE UNDER SERVICE LEVEL AGREEMENTS).
12.2 THE AGGREGATE LIABILITY UNDER THIS AGREEMENT OF EOS AND ANY OF ITS RESPECTIVE AFFILIATES OR LICENSORS, WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO EOS UNDER THIS AGREEMENT FOR THE SERVICES DURING THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
12.3 EOS shall maintain throughout the term of this Agreement adequate and reasonable insurance cover with a reputable insurer in relation to EOS's risks under this Agreement.
13. Miscellaneous
13.1 Business Continuity. EOS shall have in place and maintain up-to-date business continuity procedures to ensure that in the event of a failure of, or disruption to, EOS's business processes EOS is able to continue to perform its obligations under this Agreement to normal performance levels within the shortest practicable time. To the extent required by Applicable Law, EOS will allow the Customer to receive a redacted copy of the business continuity procedure and a summary of the findings of drills conducted by EOS as part of the procedure.
13.2 Assignment. Neither Customer nor EOS may assign or otherwise transfer this Agreement or any of its rights and obligations under this Agreement without the prior written approval of the other; except that either Customer or EOS may assign or otherwise transfer this Agreement without the consent of the other (a) in connection with a merger, acquisition or sale of all or substantially all of its assets, or (b) to any Affiliate. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assigns and further provided that such transfer will not adversely affect the ability of the assigning party to fulfil its obligations under this Agreement.
13.3 Counterparts; Electronic Signature. This Agreement may be executed by electronic signature in a format approved by EOS, and in counterparts, each of which (including signature pages) will be deemed an original, but all of which together will constitute one and the same instrument.
13.4 Entire Agreement. This Agreement incorporates the Policies by reference and constitutes the entire agreement between Customer and EOS regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between Customer and EOS, whether written or verbal, regarding the subject matter of this Agreement. EOS will not be bound by any term, condition or other provision which is different from or in addition to the provisions of this Agreement including for example, any term, condition or other provision (a) submitted by Customer in any order, receipt, acceptance, confirmation, correspondence or other document, (b) related to any online registration, response to any Request for Bid, Request for Proposal, Request for Information, or other questionnaire, or (c) related to any invoicing process that Customer submits or requires EOS to complete. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will prevail, except that the Technical Terms will prevail over this document. No modification or amendment of any portion of this Agreement will be effective unless in writing and signed by the parties to this Agreement.
13.5 Equitable Relief. Each Party acknowledges that the failure to perform its duties under Sections 4 (Confidential Information) may cause the other party to suffer irreparable injury for which the injured Party will not have an adequate remedy available at law. Accordingly, the injured party may seek to obtain injunctive or other equitable relief to prevent or curtail any breach, threatened or actual, without posting a bond or security and without prejudice to any other rights as may be available under this Agreement or under applicable law.
13.6 Force Majeure. No party will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outage, utilities or telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, epidemic, acts or orders of government, acts of terrorism, or war, but excluding any payment for the Services.
13.7 Governing Law; Venue. The laws of the State of Israel, without reference to conflict of law rules, govern this Agreement and any dispute of any sort arising between the parties in connection with this Agreement. Any dispute arising in connection with this Agreement will be exclusively by the courts of the district of Tel Aviv City.
13.8 Trade Compliance. Each party will comply with any applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations. Customer is solely responsible for compliance with applicable laws related to the manner in which Customer chooses to use the Service Offerings, including (i) Customer’s transfer and processing of Customer Content, (ii) the provision of Customer Content to End Users, and (iii) use of the Service Offering and the Customer Content in the EOS region. Customer represents that Customer and its Affiliates, and the financial institutions used to pay EOS under this Agreement, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the U.S. Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list, and the U.S. Department of Commerce’s Entity List), the European Union or its member states, the Israeli Ministry of Defense lists, Israeli Anti Money Laundering and Terror Financing Authority lists, or the lists of any other applicable governmental authority.
13.9 Independent Contractors. EOS and Customer are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither Customer nor EOS, nor any of their respective Affiliates, is an agent of the other for any purpose or has the authority to bind the other.
13.10 Language. All formal communications and Notices made or given pursuant to this Agreement must be in the English language. If EOS provides a translation of this Agreement, such translation is provided for convenience purposes only, and the English version of this Agreement shall be binding.
13.11 Publicity. Except to the extent required by Applicable Law, neither Customer nor EOS will issue any press release or make any other public communication with respect to this Agreement or Customer’s use of the Service Offerings.
13.12 Notices. Notices under this Agreement shall be provided according to the details set forth in the preamble of this Agreement and can be made by: (i) email transmission; or (ii) by personal delivery, overnight courier or registered or certified mail. Notices provided by personal delivery will be effective immediately upon their receipt. Notices provided by email or by overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent. Notwithstanding, Notices pursuant to Section 3.7 shall be provided according to the terms therein.
13.13 No Third-Party Beneficiaries. This Agreement does not create any third-party beneficiary rights for any individual or entity that is not a party to this Agreement.
13.14 No Waivers. The failure by a party to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit such party’s right to enforce such provision at a later time. All waivers by a party must be provided in writing.
13.15 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to give effect to the intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
14. Definitions. Defined terms used in this Agreement shall have the meanings given below:
14.1 “Account Information” means information about Customer that Customer provides to EOS in the creation or administration of a EOS Customer Account. Account Information includes, without limitation, names, usernames, phone numbers, email addresses and billing information associated with a EOS Customer Account.
14.2 “Affiliate” means any entity that directly or indirectly controls, is controlled by or is under common control with a party.
14.3 “API” means an application program interface.
14.4 “Applicable Law” means the applicable laws and regulations administered by the Regulator in connection with Regulated Entity’s use of the Services.
14.5 “Auditor” means an auditor who (i) is engaged by the Regulator under Applicable Law, or is engaged by the Regulated Entity, in each case to audit the Regulated Entity’s use of the Services, and (ii) has a binding and enforceable non-disclosure agreement in place with EOS.
14.6 “Computer Virus” means a parasitic program or programming code written intentionally to enter a computer program or network without the user’s permission or knowledge, which damages or is intended to damage, modify, or disrupt the operation of software or hardware, including Trojan horses, worms, logic bombs, time bombs, back doors, trap doors, spyware, malware or other code or components within software which have no documented purpose in the operation of the software.
14.7 “Content” means software (including machine images), data, text, audio, video, or images.
14.8 “Customer Content” means Content that Customer or any End User transfers to EOS for processing, storage or hosting by the Services in connection with a EOS Customer Account and any computational results that Customer or any End User derives from the foregoing through its use of the Services. Customer Content includes Content that Customer or any End User stores using the Services. Customer Content does not include Account Information.
14.9 “Development” means an additional development to the Service, which EOS makes available to the Customer at Customer’s request, and for a consideration mutually agree by the parties.
14.10 “Disputed Amounts” means amounts disputed by Customer in a Notice provided to EOS in good faith.
14.11 “Documentation” means the user guides and admin guides (in each case exclusive of content referenced via hyperlink) for the Services located at the EOS Site, as such user guides and admin guides may be updated by EOS from time to time, and the Specifications.
14.12 “End User” means any individual or entity that is provided with access to the Service Offering, or any part thereof pursuant to an engagement with the Customer.
14.13 “EOS Content” means EOS's proprietary Content that EOS or any of its Affiliates make available to its customers in connection with the Services or on the EOS Site, in order to allow customers to access and use the Services, including APIs; WSDLs; sample code; software libraries; command line tools; proofs of concept, templates, and other related technology (including but not limited to any of the foregoing that are provided by any EOS personnel). EOS Content does not include the Services or Third-Party Content.
14.14 “EOS Customer Account” means any EOS account that (a) is listed on EOS, as updated from time to time, (b) is opened by Customer using a Customer-issued email address (with an email domain name that is owned by Customer), and (c) includes Customer’s full legal name in the “Company Name” field associated with the EOS account.
14.15 “EOS Marks” means any trademarks, service marks, service or trade names, logos, and other designations of EOS and its Affiliates.
14.16 “EOS Network” means EOS’s data center facilities, servers, networking equipment, storage media, and host software systems (e.g., virtual firewalls) that are within EOS’s control and are used by EOS to provide the Services.
14.17 “EOS Security Standards” means the security standards attached to this Agreement as Attachment B.
14.18 “EOS Site” means the site available at http://eos.esh.com (and any addition or successor locations as EOS shall notify the Client) be updated by EOS from time to time.
14.19 "Intellectual Property" or "Intellectual Property Rights" means all intellectual property rights including, but not limited to, patents, designs, trademarks, service marks, certification marks, trade names, copyrights, rights in computer software, source code, ,object code, design rights related and/ or neighboring rights, rights in get up or trade dress, rights to goodwill or to sue for passing off or unfair competition, database rights, moral rights know-how and inventions, trade secrets, software, text, data, logos, artwork, likeness, images, sounds, documents, information, knowledge and materials (including ay updates, modifications enhancements, translations or other changes), rights to use and protect confidential information, domain names, URLs, whether or not registered or capable of registration, unregistered or pending, related to the software and whether subsisting in any specific country or countries or any other part of the world and together with any renewals, continuations or extensions thereof, and any rights analogous to the foregoing.
14.20 “Losses” means any damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees).
14.21 “Policies” means the Privacy Policy and the Technical Terms.
14.22 “Privacy Policy” means the privacy policy located at the EOS Site, as may be updated by EOS from time to time.
14.23 “Regulated Entity” means the Customer or the Customer’s End User (if applicable) if and for as long such entity is regulated by or subject to the Regulator.
14.24 “Regulator” means a Central Bank or any financial regulator with binding authority to regulate Regulated Entity's financial services activities.
14.25 “Service Attributes” means Service usage data related to a EOS Customer Account, such as resource identifiers, metadata tags, security and access roles, rules, usage Policies, permissions, usage statistics and analytics.
14.26 “Services” means each of the services made available by EOS or its Affiliates for which Customer registers via the EOS Site (or by such other means made available by EOS), including those web services described in the Technical Terms. The Services do not include services provided by Third-Party Providers .
14.27 “Service Level Agreement” the service level agreements with respect to the Services available at the EOS Site, as may be updated by EOS from time to time.
14.28 “Service Offerings” means the Services, the EOS Content, the EOS Marks, and any other product or service provided by EOS under this Agreement.
14.29 "Specifications" means the material technical functions, features and operating environment of the Services.
14.30 “Subcontractor” means an unaffiliated third party to whom EOS has delegated a material portion of its obligations to provide the Services to Customer under this Agreement.
14.31 “Suggestions” means all suggested improvements to the Service Offerings that Customer provides to EOS.
14.32 “Taxes” means applicable taxes and duties, including, without limitation, VAT, GST, excise taxes, sales and transactions taxes, and gross receipts tax.
14.33 “Technical Terms” means the rights and restrictions for each particular Service as set forth at the EOS Site, and as may be updated by EOS from time to time.
14.34 “Term” means the term of this Agreement described in Section 9.1.
14.35 “Termination Date” means the effective date of termination provided in a Notice in accordance with Section 9.
14.36 “Third-Party Content” means any service, data, products or offering made available by a third party provider on the EOS Site.
14.37 “Trademark Use Guidelines” means the guidelines and trademark license located at the EOS Site, as may be updated by EOS from time to time.
Attachment A
EOS Security Standards
Capitalized terms not otherwise defined in this document have the meanings assigned to them in the Agreement.
1. Information Security Program. EOS will maintain an information security program (including the adoption and enforcement of internal policies and procedures) designed to (a) satisfy the Security Objectives, (b) identify reasonably foreseeable and internal risks to security and unauthorized access to the EOS Network, and (c) minimize security risks, including through risk assessment and regular testing. EOS will designate one or more employees to coordinate and be accountable for the information security program. The information security program will include the following measures:
1.1 Network Security. The EOS Network will be electronically accessible to employees, contractors and any other person as necessary to provide the Services. EOS will maintain access controls and policies to manage what access is allowed to the EOS Network from each network connection and user, including the use of firewalls or functionally equivalent technology and authentication controls. EOS will maintain corrective action and incident response plans to respond to potential security threats.
1.2 Physical Security.
1.2.1 Physical Access Controls. Physical components of the EOS Network are housed in nondescript facilities (the “Facilities”). Physical barrier controls are used to prevent unauthorized entrance to the Facilities both at the perimeter and at building access points. Passage through the physical barriers at the Facilities requires either electronic access control validation (e.g., card access systems, etc.) or validation by human security personnel (e.g., contract or in-house security guard service, receptionist, etc.). Employees and certain contractors are assigned photo-ID badges that must be worn while the employees and contractors are at any of the Facilities. Visitors and any other contractors are required to sign-in with designated personnel, must show appropriate identification, are assigned a visitor ID badge that must be worn while the visitor or contractor is at any of the Facilities, and are continually escorted by authorized employees or contractors while visiting the Facilities.
1.2.2 Limited Employee and Contractor Access. EOS provides access to the Facilities to those employees and contractors who have a legitimate business need for such access privileges. When an employee or contractor no longer has a business need for the access privileges assigned to him/her, the access privileges are promptly revoked, even if the employee or contractor continues to be an employee of EOS or its affiliates.
1.2.3 Physical Security Protections. All access points (other than main entry doors) are maintained in a secured (locked) state. Access points to the Facilities are monitored by video surveillance cameras designed to record all individuals accessing the Facilities. All physical access to the Facilities by employees and contractors is logged.
2. Continued Evaluation. EOS will conduct periodic reviews of the security of its EOS Network and adequacy of its information security program as measured against industry security standards and its policies and procedures. EOS will continually evaluate the security of its EOS Network and associated Services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.