Last Updated: August 31, 2023
These SUBSCRIPTION TERMS AND CONDITIONS and the CUSTOMER ORDER FORM (collectively, the “Agreement”) are by and between the OTORIO entity specified in the Customer Order Form (“OTORIO”) and the Customer specified in the Customer Order Form (“Customer” or “You”). PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING THE “ACCEPT” BUTTON, SIGNING THE CUSTOMER ORDER FORM, OR ACCESSING AND/OR USING THE OTORIO PLATFORM AND/OR OTORIO SERVICES, YOU AGREE TO COMPLY WITH AND BE LEGALLY BOUND BY THE AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT ACCESS OR USE THE OTORIO PLATFORM OR OTORIO SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE CUSTOMER HEREBY WAIVES ANY RIGHT TO REQUIRE AN ORIGINAL (NON-ELECTRONIC) COPY OF THIS AGREEMENT.
1.1. License Grant. Subject to the terms of this Agreement and Customer’s payment of the applicable Fees (set out in the Customer Order Form), during the Term (defined below):
1.1.1. End User Customer. OTORIO grants Customer a limited, non-exclusive, non-assignable, revocable, non-sublicensable and non-transferable license to use OTORIO’s software and/or Hardware (defined below( (if any) as specified in the Order Form (collectively “OTORIO Platform”), solely for internal purposes, in accordance with the documentation provided by OTORIO and the terms of this Agreement.
1.1.2. SpOT Assessment. If the Customer is a SpOT Assessor (as specified in the Customer Order Form), in addition to the license granted in section 1.1.1 (‘End User Customer’) above, OTORIO grants Customer a limited, non-exclusive, non-assignable, revocable, non-sublicensable and non-transferable license to use the OTORIO Platform for assessment services and extract assessment reports generated by the OTORIO Platform, which Customer is entitled to provide to its end customers, all subject to the terms and in accordance with this Agreement (“Assessment Reports”).
1.2. License Restrictions. Unless otherwise explicitly permitted herein, without the prior written consent of OTORIO, Customer must not, directly or indirectly (nor permit any third-party, including, without limitation, any Permitted User (as defined below)) to: (a) resell, license (or sub-license), lease, assign, transfer or pledge Customer’s rights under this Agreement to any third party; (b) copy, modify, adapt, create derivative works, or remove any proprietary notices or copyright restrictions from the OTORIO Platform or from any supporting documentation; (c) use any “open source” or “copyleft software” in a manner that would require OTORIO to disclose the source code of the OTORIO Platform to any third party; (c) disclose the results of any testing or benchmarking of the OTORIO Platform to any third party; (d) disassemble, decompile, reverse engineer or attempt to discover the OTORIO Platform’s source code or underlying algorithms; (e) use the OTORIO Platform in a manner that violates or infringes any third-party rights (including, without limitation, intellectual property rights); (f) circumvent, disable or otherwise interfere with security-related features of the OTORIO Platform or features that enforce use limitations; (g) export, make available, access or use the OTORIO Platform in any manner prohibited by applicable laws (including without limitation export control laws); (h) use the OTORIO Platform and OTORIO Services (defined below) for any reason other than for Customer’s internal purposes; (i) transmit any malicious code (i.e., software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system) or other unlawful material in connection with the OTORIO Platform. Customer shall indemnify, hold harmless, and at OTORIO’s request, defend, OTORIO, from all losses, fees, and damages suffered by OTORIO arising from Customer’s breach of this Section 1.2 (‘License Restrictions’).
2. OTORIO SERVICES.
Subject to the Customer’s payment of the applicable Fees (as set out in the Customer Order Form), OTORIO may provide professional services as detailed in the Order Form as “OTORIO Services”. OTORIO Services may include (without limitation) the delivery of the OTORIO Platform, cybersecurity services to identify security vulnerabilities on one or more systems and/or internet perimeter devices owned or operated by Customer (including third-party hardware and software, utilized or proposed to be utilized by Customer). The OTORIO Services may be provided at the customer location or remotely, at OTORIO’s sole discretion. OTORIO shall perform the OTORIO Services using reasonable skill and care that would be expected of a service provider providing such services in the same or similar circumstances.
3. SPOT ASSESSMENTS
Where Customer is a SpOT Assessor (as indicated on the Customer Order Form) and uses the OTORIO Platform to perform assessments as part of its service bundle to its own end customers:
3.1. No White-Labelling. All Assessment Reports generated or produced as a result of the Customer’s use of the OTORIO Platform, shall not be provided to Customer’s end customers without OTORIO’s original proprietary rights notices and logo, unless otherwise expressly agreed by OTORIO in writing. Accordingly, Customer shall ensure that the OTORIO logo and the phrase “Powered by OTORIO” is placed predominantly on the front page of each report produced and provided to customers. In connection therewith, You will at all times abide by OTORIO’s trademark usage guidelines as in effect from time to time.
3.2. Provision of Information. Upon OTORIO’s request, Customer shall provide OTORIO with: (a) full details of its end customers who have benefitted from the OTORIO Platform and the Assessment Reports generated by the OTORIO Platform; and/or (b) copies of the Assessment Reports.
3.3. Restrictions. Customer shall ensure that it imposes restrictions on its end customers not to use, disseminate or otherwise exploit all Assessment Reports in any way to infringe or misappropriate third party rights and/or applicable law. Customer shall indemnify, hold harmless, and at OTORIO’s request, defend, OTORIO, from all losses, fees, and damages suffered by OTORIO arising from breach of this Section 3.3;
4. PERMITTED USERS
During the Term (defined below), Customer may allow its employees, “Permitted Users”) who are explicitly internally authorized by Customer to use the OTORIO Platform and OTORIO Services solely for the purposes of this Agreement. Each Permitted User shall be bound by the terms and conditions in writing at least as restrictive as those contained in this Agreement. Customer shall remain responsible and liable for the actions and omissions of its Permitted Users and Customer shall immediately report to OTORIO any unauthorized access or use of the OTORIO Platform.
5. MAINTENANCE AND SUPPORT
With respect to the OTORIO Platform, subject to the Customer’s payment of all applicable Fees (as set out in the Customer Order Form), OTORIO shall provide the maintenance and support to Customer as set forth in the Service Level Agreement page on our website (“SLA”). OTORIO is not under any obligation to provide maintenance or support during any trial or free of charge periods or during any period in which the Customer is has failed to pay and Fees hereunder (or where payment by Customer any Fees is delayed.
If OTORIO provides any hardware as specified in the Customer Order Form (for example, Edge Devices) under this Agreement (“Hardware”), all Hardware shall be subject to OTORIO’s Hardware-as-a-Service (HaaS) Subscription Terms and Conditions page on our website (“Hardware Terms”).
7. INTELLECTUAL PROPERTY
7.1. Title and Ownership. The OTORIO Platform, as well as any enhancements, improvements, corrections, modifications, alterations, revisions, extensions, and updates thereto (collectively, “Improvements”) and all OTORIO Services, documentation relating to the foregoing, Feedback (defined below) and Analytic Data (defined below) are not for sale and shall remain OTORIO’s exclusive property. As between the parties, all right, title and interest (including, without limitation, all intellectual property rights) in and to each of the foregoing, are and shall be at all times, owned exclusively by OTORIO. This Agreement does not convey to Customer any interest in or to the OTORIO Platform or OTORIO Services, other than the limited license expressly granted in Section 1.1 ('License Grant') above. Nothing herein constitutes a waiver of OTORIO’s intellectual property rights under any law. OTORIO reserves all rights not expressly granted hereunder.
7.2. Feedback. If Customer or any Permitted User contacts OTORIO with any feedback (whether orally or in writing) (e.g., questions, comments, feedback data, reports, suggestions, or the like) regarding the OTORIO Platform, OTORIO Services, OTORIO Hardware or any other products or services of OTORIO (collectively, “Feedback”), such Feedback shall be deemed the exclusive property of OTORIO. Customer hereby (and shall ensure that each Permitted User) irrevocably and unconditionally transfers and assigns to OTORIO all intellectual property rights and associated rights in and to the Feedback and waives any and all rights (including, without limitation, moral rights) that Customer (and/or each Permitted User) may have with respect thereto. All improvements to the OTORIO Platform and/or OTORIO Services (or any other products or services) made by OTORIO or on its behalf, based on the Feedback, shall be owned exclusively by OTORIO. The use of any Feedback (if any) may be made by OTORIO at its sole discretion, and OTORIO is not obliged to make use of any Feedback.
8. THIRD PARTY COMPONENTS
The OTORIO Platform may use third-party open-source software, files, libraries, or components that may be distributed to Customer and are subject to third-party open-source license terms. If there is a conflict between any open-source license and the terms of this Agreement, then the open-source license terms shall prevail but solely in connection with the related third-party open-source software. OTORIO makes no warranty or indemnity and shall have no liability hereunder with respect to any third-party open-source software.
9. TERM; ACTIVATION AND TERMINATION
9.1. Term. This Agreement shall commence on the Effective Date (as set forth in the Customer Order Form) and shall continue in force and effect for the duration of the Initial Term (as set out in the Customer Order Form), unless terminated earlier in accordance with this Agreement. Following the Initial Term, this Agreement shall automatically renew at the then-applicable subscription fees for successive periods as the Initial Term, unless either Party provides the other Party with at least a sixty (60) days’ prior written notice of non-renewal from the expiration date of the Initial Term or Renewal Term, as applicable (each a “Renewal Term” and, together with the Initial Term, the “Term”).
9.2. Continued Use. If You continue to access and/or use the OTORIO Platform anytime following the expiration of the Term, the terms and conditions of this Agreement shall continue to apply, except OTORIO shall have no liability to you with respect of such use.
9.3. Acceptance. Acceptance of the OTORIO Platform and OTORIO Services (as applicable) shall be on the Effective Date.
9.4. Termination for Cause. Either Party may terminate this Agreement with immediate effect if the other Party materially breaches this Agreement and such breach remains uncured fifteen (15) days after having received written notice thereof. Notwithstanding anything to the contrary, any unauthorized access or use of the OTORIO Platform and/or OTORIO Services (including without limitation a breach of Section 1.2 (‘License Restrictions’) above) shall result in automatic and immediate termination of this Agreement, upon OTORIO’s notice to Customer. In addition, OTORIO may suspend the use of OTORIO Platform or OTORIO Services while investigating a suspected material breach of this Agreement or breach of applicable law, and for as long as any fees or payments are owed to OTORIO.
9.5. Termination for Insolvency. Either Party may terminate this Agreement immediately upon notice in case of: (i) the institution by or against the other Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of the other Party’s debts, (ii) the other Party’s making an assignment for the benefit of creditors, or (iii) the other Party’s dissolution or ceasing to do business; provided, however, that Customer shall not be entitled to terminate this Agreement or any subscription for as long as OTORIO abides by its undertakings hereunder.
9.6. Effect of Termination. Upon expiration or termination, Customer shall (and shall ensure that all Permitted Users): (a) immediately cease access and use of the OTORIO Platform and OTORIO Services; (b) return or destroy (upon OTORIO’s request) any and all Hardware and documentation to OTORIO that have been provided under this Agreement; (c) erase, destroy and/or permanently delete all copies of the OTORIO Platform in its possession, which are fixed or resident in the memory or hard disks of its devices; and (iv) return to OTORIO, destroy or permanently delete (upon OTORIO’s instructions) any and all of OTORIO’s Confidential Information.
9.7. Survival. This Section 9.6 (‘Survival’) and the following provisions shall survive the expiration or termination of this Agreement: 1.2 (‘License Restrictions’), 7 (‘Intellectual Property’), 8 (‘Third Party Components’), 9.5 (‘Effect of Termination’), 10 (‘Fees’), 11 (‘Indemnification’), 12 (‘Warranties and Limitation of Liability’), 13 (‘Confidentiality’), 14 (‘Privacy and Analytic Data’), and 15 (‘General’).
Unless otherwise specified in the Customer Order Form: (a) all payments of Fees with respect to the OTORIO Platform shall be invoiced and paid annually in advance; (b) all payments for OTORIO Services hereunder, shall be invoiced and paid in advance; (c) Customer will pay all amounts due under this Agreement in U.S. Dollars; (d) all amounts invoiced hereunder are due and payable within thirty (30) days of the date of the invoice (but in advance prior to receipt of access to the OTORIO Platform or OTORIO Services) in full, without set-off, recoupment, deduction or withholding of any kind; and (e) all fees and other amounts paid hereunder are non-refundable. Any amount not paid when required to be paid hereunder shall accrue interest on a daily basis until paid in full at the lesser of: (i) the rate of one and a half percent (1.5%) per month; or (ii) the highest amount permitted by applicable law. All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other direct or indirect taxes, charges, levies, duties and/or governmental charges, except for taxes based upon OTORIO’s net income. For the purposes of revenue recognition by OTORIO, value shall be calculated from the Activation Date (as set out in the Customer Order Form).
11.1. Indemnification by OTORIO. OTORIO shall pay all costs, liabilities, damages and other amounts finally awarded by court against You, arising from a third-party claim that Your use of the OTORIO Platform, in accordance with this Agreement and within the permitted scope of the license provided hereunder, directly infringes any US or EU patent or trademark issued as of the date of the Customer Order Form or any copyright or trade secret, provided that (i) You promptly notify OTORIO of any and all threats, claims or proceedings potentially implicating the indemnity obligations set forth in this Section 10.1 (’Indemnification by OTORIO’) and prior to taking any action which could adversely impact the defense; and (ii) OTORIO is given reasonable assistance and the opportunity to assume sole control over the defense of the claims and/or allegations for which indemnity is sought under this Section 10.1 (’Indemnification by OTORIO’) as well as sole control over all negotiations for a settlement or compromise of such claims. OTORIO shall not be responsible for any settlement that is not approved in writing in advance by OTORIO and/or for any allegation of trade-secret misappropriation, other than one based on an allegedly wrongful act of misappropriation by an OTORIO employee. If the OTORIO Platform is, or in OTORIO’s opinion is likely to become, the subject of a claim, suit, or proceedings of intellectual property infringement, OTORIO may in its sole discretion: (i) procure, at no cost to You, the right to continue using such Product; (ii) replace or modify the OTORIO Platform, at no additional cost to Customer, to make it non-infringing (even if that modification materially impacts the value or utility of the OTORIO Platform), or (iii) terminate the license for the infringing OTORIO Platform and grant a refund credit thereon as depreciated on a basis of the shorter of: (a) 36 months; or (b) the Initial Term. The foregoing indemnity obligation by OTORIO does not apply with respect to the OTORIO Platform (or portions or components thereof): (i) not provided by OTORIO, (ii) made in whole or in part in accordance with Customer specifications, (iii) which are modified by anyone other than OTORIO, if the alleged infringement relates to such modification, (iv) combined with other products, services, processes or materials where the alleged infringement relates to such combination, (v) where OTORIO could not be held liable for inducing or contributing to infringement of Your asserted claims; (vi) with respect to which a claim or allegation of infringement was first made prior to the date of the applicable Customer Order Form; or (viii) where You continue allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement. In addition, OTORIO shall have no indemnity obligation for legal fees, costs or expenses You incurred prior to the time You provide OTORIO both (a) notice of the claim and (b) materials from which OTORIO could reasonably determine that indemnity is owed. You will indemnify OTORIO and its officers, directors, agents and employees from all damages, settlements, attorneys’ fees and expenses related to a claim of infringement or misappropriation excluded from OTORIO’s indemnity obligation by this Section 11.1 (’Indemnification by OTORIO’).
THE FOREGOING PROVISIONS STATE OTORIO’S ENTIRE LIABILITY AND OBLIGATIONS WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS AND ARE IN LIEU OF ANY WARRANTIES OF NONINFRINGEMENT.
11.2. Indemnification by Customer. Customer shall defend, indemnify and hold harmless OTORIO its vendors, officers, directors, employees, affiliates, subsidiaries, licensors, agents and suppliers from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney’s fees) arising from: (i) Customer’s unauthorized use of the OTORIO Platform and/or OTORIO Services; (ii) Customer’s violation of any applicable laws, regulations or third party rights, including, without limitation, any intellectual property rights or privacy rights, in connection with Customer’s use of the OTORIO Platform and/or OTORIO Services; and (iii) Customer’s breach of any term of this Agreement.
12. WARRANTIES AND LIMITATION OF LIABILITY
12.1. Mutual Warranties. 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. Without derogating from the above, Customer further represents and warrants that it has obtained all permissions, approvals and permits for OTORIO to perform the OTORIO Services.
12.2. No Warranty. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE OTORIO PLATFORM AND THE OTORIO SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. OTORIO DOES NOT WARRANT THAT: (i) THE OTORIO PLATFORM AND/OR OTORIO SERVICES WILL MEET CUSTOMER'S REQUIREMENTS, OR (ii) THE OTORIO PLATFORM WILL OPERATE ERROR-FREE. THE OTORIO SERVICES AND ANY RESULTS, ASSESSMENT REPORTS OR OTHER DELIVERABLES RESULTING THEREFROM ARE PROVIDED SOLELY TO CUSTOMER, AND OTORIO SHALL HAVE NO LIABILITY TOWARDS ANY THIRD PARTY FOR ANY RELIANCE THEREON. OTORIO EXPRESSLY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH RESPECT TO EACH OF THE FOREGOING. OTORIO 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 SERVICES. OTORIO DOES NOT WARRANT THAT THE RESULTS OF ANY OTORIO SERVICES WILL IDENTIFY ALL SECURITY ISSUES AND CORRECTLY MEASURE THE OVERALL SECURITY POSTURE AND QUALITY OF THE CUSTOMER’S SYSTEMS. RECEIPT OF THE OTORIO SERVICES DOES NOT MEAN THAT THE CUSTOMER’S SYSTEMS ARE SECURE FROM EVERY FORM OF ATTACK.
12.3. Hardware Warranty. OTORIO’S warranty for Hardware is set out in our Hardware Terms.
12.4. Limitation of Liability. EXCEPT FOR EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, EITHER PARTY’S GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) 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; AND (B) OTORIO’S TOTAL AGGREGATE LIABILITY WITH RESPECT TO THE OTORIO PLATFORM, OTORIO SERVICES OR OTHERWISE ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED THE TOTAL FEES ACTUALLY PAID OR PAYABLE TO OTORIO 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.
Each Party may have access to certain non-public information 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, customers 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”). The OTORIO Platform, OTORIO Services, all associated documentation and all information relating to OTORIO’s business, customers and technology shall remain OTORIO’s Confidential Information at all times. 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 13 (‘Confidentiality’), with respect to any Confidential Information of the disclosing Party, shall not apply to 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, or use of, 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 (“Representatives”) 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. The receiving Party shall remain responsible and liable for any unauthorized disclosure or use of Confidential Information by its Representatives. The receiving Party will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order or a court of similar judicial or administrative body, provided that it notifies the disclosing Party of such required disclosure to enable disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party.
14. PRIVACY AND ANALYTIC DATA
14.2. Analytic Data. OTORIO may process or have access to analytic data (that does not personally identify Customer or Permitted Users), derived from the use of the OTORIO Platform and/or OTORIO Services in order to deliver, enhance, improve, customize, support, and/or analyze the OTORIO Platform and OTORIO Services (“Analytic Data”).
15.1. Publicity. OTORIO may reference and use Customer’s name and trademarks in OTORIO’s marketing and promotional materials and website for the purpose of identifying Customer as OTORIO’s customer. Otherwise, and except as expressly provided herein, neither Party may use the trade names, trademarks, service marks, or logos of the other Party without express written consent.
15.2. Governing Law and Venue. 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. Subject to Section 15.7 (‘Injunctive Relief’), the competent courts in Tel-Aviv, Israel shall have exclusive jurisdiction with respect to any dispute or action arising out of or in relation to this Agreement.
15.3. Assignment. Customer shall not assign this Agreement or any of its rights or obligations hereunder without OTORIO’s prior written consent. Any prohibited assignment shall be null and void. OTORIO may assign this Agreement and any of its rights or obligations hereunder in whole and in part at its sole discretion.
15.4. Amendments. OTORIO may make changes to these Subscription Terms and Conditions at any time by posting the changed version at www.otorio.com/subscription-tandc. The changes will be effective ten (10) days after such posting, and Customer’s continued use of the OTORIO Platform and/or OTORIO Services thereafter shall constitute Customer’s acceptance of such changes. OTORIO will also update the “Last Updated” date and “Version” number set forth above. Please check the above webpage regularly for any changes to these Subscription Terms and Conditions.
15.5. No Waiver. No waiver of rights arising under this Agreement shall be effective unless in writing and signed by the Party against whom such waiver is sought to be enforced. No failure or delay by either Party in exercising any right, power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy and/or prejudice any rights of such Party.
15.6. Independent Contractors. The Parties are independent contractors and 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.
15.7. Injunctive Relief. Nothing in this Agreement shall be construed to limit or delay either Party’s ability to seek immediate relief at law or in equity for any breach by the other in any competent court worldwide.
15.8. Severability. If any provision under this Agreement is determined by a court to be unenforceable, that provision will be deemed to be modified to the extent necessary to allow it to be enforced to the extent permitted by law, or if it cannot be modified, the provision will be severed and deleted, and the remainder of the Agreement will continue in effect.
15.9. Entire Agreement. This Agreement constitutes the complete and entire agreement of the Parties and supersedes all previous communications between them, oral or written, relating to the subject matter hereof.
15.10. Conflict. In the event of a conflict between the terms of the Customer Order Form, the Subscription Terms and Conditions, the Hardware Terms, and the SLA, the order of precedence shall be as follows: (1) the Customer Order Form; and (2) Subscription Terms and Conditions; (3) Hardware Terms and (4) SLA.
15.11. Force Majeure. OTORIO will not be liable for any delay or failure to provide the OTORIO Services, Hardware or otherwise resulting from circumstances or causes beyond OTORIO’s reasonable control including, but not limited to, on account of strikes, labor grievances, shortages, riots, insurrection, civil unrest, fires, flood, storms, explosions, acts of God, war, government or quasi-governmental authorities’ actions, acts of terrorism, earthquakes, power outages, pandemic or epidemic (or similar regional health crisis), or any other cause that is beyond OTORIO’s reasonable control.
15.12. Export. You acknowledge that the OTORIO Platform is subject to international and local country laws governing import, export, distribution and use. The OTORIO Platform is subject to export control laws of the State of Israel and/or may be subject to additional export control laws applicable to You or in Your jurisdiction, including, without limitation, the United States or the European Union. You agree that You will not ship, transfer, or export the OTORIO Platform into any country, or make available or use the OTORIO Platform or OTORIO Services in any manner, prohibited by law. You understand and acknowledge that upon entry of the OTORIO Platform into the United States, it becomes subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, which prohibit export or diversion of certain products and technology to certain countries. Any and all of Your obligations with respect to the OTORIO Platform shall be subject in all respects to such United States laws and regulations as shall from time to time govern the license and delivery of technology and products abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation, and the Export Administration Regulations (“EAR”) issued by the Department of Commerce, International Trade Administration, and Bureau of Export Administration. You warrant that You will comply in all respects with the export and re-export restrictions applicable to the OTORIO Platform and will otherwise comply with the EAR or other United States or European Union laws and regulations in effect from time to time. You warrant and agree that You are not: (i) located in, under the control of, or a national or resident of Cuba, North Korea, Iran, Syria, Lebanon, Sudan the Crimea, the Luhansk People’s Republic (LNR), or the Donetsk People’s Republic (DNR) regions of Ukraine, or any other country or region to which the United States, the European Union and/or Israel have prohibited export transactions, or (ii) on the U.S Treasury Department list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. You further undertake not to make use of the OTORIO Platform or OTORIO Services in connection with the development, production or storage, of any nuclear, chemical or biological weapons, or missile technology, without our prior written consent and all requisite regulatory approvals and licenses.