Matrix – CloudZone – AWS Agreement (January 2018 – March 2020)

Matrix – CloudZone – AWS Agreement (January 2018 – March 2020)

Matrix (Cloudzone) – AWS Access and Services Agreement – January 2014-March 2018

This Matrix – Cloudzone – AWS Agreement (this “Agreement“), is an Agreement between Matrix I.T. Integration and Infrastructures Ltd. (“Matrix,” “we,” “us,” or “our”) and you or the entity you represent (“you“, “Customer”). Please see Section 1 for definitions of certain capitalized terms used in this Agreement. This Agreement governs your access to and license the use of AWS’ Platform, Ancillary Support and Services (all as defined herein). If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to the terms and conditions of this Agreement, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not or cannot agree to the terms and conditions of this Agreement, you must not accept this Agreement (by clicking the “cancel” or “no” or “close window” button or otherwise indicate refusal) and you may not use the License or the Services.

Whereas:

  1. Matrix is authorized by AWS, to provide access and AWS Terms to the use of the AWS Platform, Services and Ancillary Support, all as defined hereinafter;
    B. Customer wishes to receive from Matrix and Matrix wishes to provide Customer with
    AWS Terms, Services and Ancillary Support, all as defined hereinafter
    C. the Parties wish to delineate their legal relationship in accordance with the terms and conditions set out hereinafter in this Agreement.

It is therefore declared, agreed and stipulated between the Parties as follows:

  1. Preamble, Exhibits and Definitions
  2. The preamble to this Agreement and its exhibits constitute an integral part of the Agreement itself.
    b. The headings used in and subdivision of this Agreement are intended for convenience only and shall have no relevance for the purpose of its interpretation.
    c. In this Agreement, the following expressions shall have the meanings appearing next to them, unless the context in which they are used implies otherwise or it is expressly stated otherwise anywhere in the Agreement.
    AWS– AWS Web Services LLC.
    The Platform– AWS’ Platform.
    AWS Terms – AWS’ “AWS Customer License Terms”, as revised from time to time, the current version of which is Agreement located at: https://s3.AWSaws.com/Reseller-Program-Legal-Documents/AWS+Reseller+Customer+License+Terms.pdf.
    AWS Documents –AWS Terms and any documents mentioned or referred to within the AWS Terms and/or therein.
    The Authorization– The authorization to access the Platform, use the cloud computing infrastructures and receive the Services, all in accordance with the terms of this Agreement and AWS Documents, as may change from time to time pursuant reasonable prior written notice to Customer.
    The Services – The Services supplied to Customer by AWS within the Platform, in accordance with the AWS Documents. It is clarified that the Services are limited to those expressly described in AWS Documents
    Ancillary Support – accompanying AWS Business Support services, supplied to Customer by Matrix and supported by AWS.|
    Customer Account – The account/s held in Customer’s name on the Platform, in accordance with this Agreement.
    d. The exhibits to this Agreement:
    Exhibit A″ – Non Disclosure Agreement.
    Exhibit B″ – Managed Services Agreement (optional)
  3. Grant
  4. Matrix hereby grants to Customer and Customer receives from Matrix, AWS standard, non-exclusive and non-transferable Authorization to access and use the Platform and to receive the Services through Customer Account and Ancillary Support, in return for the consideration and upon the terms specified in this Agreement and its exhibits.
    b. The Authorization, Services and Ancillary Support are being granted solely in accordance with AWS Documents and shall not entitle Customer and/or its users (“End-Users“): (1) to adapt, alter, disrupt, amend or to create by any other method derivative works from any application included in the Platform and/or the Services (unless expressly stated otherwise in relation to a specific application); (2) without Matrix’ and/or AWS’ prior written consent or legal obligation to do so, to copy, alter, create a derivative version of, reverse engineer, compile or to try in some other way to extract the source code of any application included in the Platform and/or the Services or any part thereof and/or to authorize others to do so; (3) to try and disable or bypass security mechanisms or to use the Services in order to create malicious activity, or to upload a malicious process or content; (4) to sell AWS Documents or grant a sublicense.
    c. All licenses and authorizations granted by this Agreement shall be conditional upon compliance with its terms and shall be revoked automatically if Customer fails to honor them. It is hereby clarified that AWS Customer is not being granted any intellectual property right of any kind in any of AWS’ right, service and/or product.
    d. The Services and/or Ancillary Support are based on their availability on the Internet and do not include repairing malfunctions caused by the online activities of Customer and/or anyone acting on its behalf and/or Customer’s direct access to the Platform.
    e. The content and features of the Services, the security and privacy arrangements, the acceptable use policy and the other conditions shall be as specified in AWS Documents, including Services level Agreements, general conditions, acceptable use policy, and the other Platform conditions.
    f. Provided it honors its obligations and undertakings, the AWS Terms shall entitle Customer to have access to the Platform and to receive the Services through it.
    g. Customer shall bear sole responsibility for the content, belonging to itself or a third party, which shall pass through its Customer Account.
  5. The Parties’ Declarations and Undertakings
  6. Matrix hereby declares and undertakes that it has the authority and is entitled to grant the rights granted under this Agreement and to provide the Ancillary Support to Customer in accordance with the terms set out in AWS Documents and this Agreement and that it holds all the permits and rights required (in so far as required) to do so, that no legal or other obstacle exists to prevent it from entering into this Agreement, and that to the best of its knowledge it is not infringing a right of any third party by doing so.
    b. By signing this Agreement, Customer agrees and declares that the AWS Terms and its receipt of the Services and/or Ancillary Support shall be subject to the terms of AWS Documents, as revised from time to time, which shall constitute a separate Agreement between Customer and AWS, including the License at its applicable version
    c. Customer further declares and undertakes: (1) That it is aware and agrees that its signature on and/or implementation of this Agreement does not entitle it to any right in the Services and/or the Platform and/or the copyright in them and/or in patents, copyrights or other intellectual property rights entailed in or connected with the Services and/or the Platform, should any exist, and/or in the goodwill associated with the name AWS and that the only right which it shall acquire, provided it honors all its obligations under this Agreement, will be the non-exclusive and non-transferable right to receive the License, the Services and/or Ancillary Support upon the terms set out in this Agreement. Customer is likewise aware and agrees that the entering into and/or implementation of this Agreement shall not prevent Matrix from selling, leasing or granting to any third party an additional License to use the Service; (2) That no legal or other obstacle exists to prevent it from entering into and implementing this Agreement.
  7. Changes

Customer agrees and declares that it is aware that changes may be made from time to time in AWS’ sole discretion:

  • To AWS content of the Services and/or Ancillary Support (including its termination)
  • To the Platform interfaces
  • To the AWS Service level Agreements
  • To AWS Documents.
  1. Limitation of Liability
  2. The AWS Terms, Services and Ancillary Support are being provided to Customer “as is” and no express, implied or other representation or guarantee has been given with respect to them, including as to the absence of disruptions, errors or damaging components, or that any content, including Customer’s content or that of a third party, shall be protected or shall not be lost or damaged in any other way. This liability replaces, subject to law, any liability or other express or implied conditions, including, but without prejudice to the generality of the foregoing, any implied liability or terms regarding negotiability, satisfactory quality, suitability for a specific purpose, non-infringement, enjoyment or liability resulting from a commercial practice.
    b. Having regard to its nature, Customer is aware that the Services and Ancillary Support may be subject to interruptions and/or disruptions and/or various technical malfunctions, including faults in software, hardware, communication channels, or physical infrastructure, including interruptions/disruptions. It is hereby clarified and agreed between the Parties that Matrix and/or AWS shall not bear any responsibility towards Customer with respect to losses and that Matrix’ and/or AWS’ liability under this Agreement shall be limited to repairing faults caused by incomplete performance of the Services and/or provision of a substandard Service.
    c. Matrix and/or AWS shall not be held liable for any direct, indirect, incidental, special, consequential and/or exemplary damages including damages for (a) loss of profits, cost of procurement of substitute goods or services, goodwill, use, or data; (b) any unanticipated or unscheduled downtime, malfunction or interruption to the all or part of the Services; or (c) any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of Customer content or other data including any damage, fault, deletion, loss of information of any kind, loss of profit, goodwill, use or data, cost of replacement products, delay in the transmission or receipt of information, misdirection of information or disruption, including where caused to the Platform and its systems while providing the Services in accordance with the Agreement and Customer shall have no claim and/or demand against Matrix and/or AWS in this regard. In any case, Matrix and/or AWS’ total cumulative liability under this Agreement, for all causes of action, whether alleged to be attributed to a breach of this Agreement, tort or otherwise, shall in no event exceed the total consideration payable by Customer to Matrix for the 12 calendar months preceding the date on which it occurred, shall be subject to a final judgment by a court of competent jurisdiction and the following provisions: (i) Customer promptly notifies Matrix in writing of the claim; (ii) Matrix shall have the sole control of the defense and all related settlement negotiations; and (iii) Customer provides Matrix with the reasonable assistance and information.
    d. Customer shall bear sole and absolute responsibility for all direct use by Customer or for use by any third party of Customer Account, as well as its content and all possible aspects thereof, including development, substance, operation, maintenance, technical operation, compliance with legal requirements, compatibility with the Platform’s policy, third party claims pertaining thereto, treatment and processing of information sent to Customer, protection and backup, utilization of Customer’s designs by users and support for Customer’s users, in so far as it was provided as a result of a break-in, unauthorized access and/or act of sabotage which penetrated the Platform’s defense system.
    e. Should Customer have reason to believe that an unauthorized third party is using its account, or if the details of Customer Account had been lost or stolen, it may ask Matrix to close that account.
  3. Indemnification by Customer

Customer undertakes to defend, indemnify and hold harmless Matrix and/or AWS and/or and each of our respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) Customer’s or any End-Users’ use of the Platform or the Services (including use by Customer’s employees and personnel); (b) Third party’s materials and/or Customer’s materials or the combination of Customer’s materials with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights or the use, development, design, production, advertising or marketing of Customer’s materials; and/or (c) a dispute between Customer and any End-User.

  1. Service Fee, Credit and Payment Terms
  2. In consideration for the Authorization, AWS Terms and Services, Customer shall pay Matrix fees for the on-demand usage and upfront charges of the Services in accordance with AWS pricing available at: http://aws.amazon.com/pricing.
    b. In consideration for the Ancillary Support, Customer shall pay Matrix in accordance with AWS Business Support Pricing available at: https://aws.amazon.com/premiumsupport/pricing/.
    c. Customer shall provide Matrix with Customer’s credit card number as an assurance of payment. Customer’s credit line granted by Matrix is subject, at any time, to Matrix’ certification following Customer’s provision of financial information to Matrix and Matrix is entitled, at any time, before payment or even after a partial payment, modify or cancel Customer’s credit line or its terms. After Matrix review of Customer financial condition and overall credit worthiness, Matrix may, at its discretion, extend credit to Customer upon Customer’s provision of any applicable security in an amount, form, and with an entity acceptable to Matrix. Monthly interest of 1.5% (or the highest rate permitted by law) shall be charged on any sum in arrears.
    d. Remittance Address: Matrix I.T. Integration and Infrastructures Ltd., 12 Amal St, 1st Floor, Rosh Ha’Ayin, 4809245.
    e. Customer shall pay all taxes, duties and levies of any governmental authority, including, but not limited to any excise or VAT tax, exclusive of taxes on Matrix’ net income, or shall provide a certificate of exemption acceptable to the appropriate taxing authority and as required by AWS at: https://aws.amazon.com/tax-help.

All payments in respect of this Section 7 shall be made within 30 days from date of invoice to Customer.

  1. AWS Account credentials
  2. If Customer has an existing Customer Account(s), which is intended to be used in connection with this Agreement, Customer undertakes to provide Matrix as well with complete Customer Account credentials (“AWS Credentials”), promptly upon execution of this Agreement. It is hereby clarified that Customer shall retain ownership of the AWS Credentials. The AWS Credentials will be returned to Customer upon the expiration or other termination of this Agreement, irrespective of the reasons for termination and provided Customer has paid Matrix in full for all due fees to the actual termination date.
    b. In the event Customer does not provide Matrix with the AWS Credentials, Matrix shall not be responsible for delivering any Services and/or Ancillary Support which require Matrix’ custody of the AWS Credentials, as same may be revised from time to time by AWS.
    c. Customer further acknowledges that if the AWS Credentials are not provided to Matrix, Customer will continue to have access to the AWS billing portal found at aws.AWS.com (the “AWS Billing Portal”). For the record, it is clarified that following consolidation of accounts with Matrix, the AWS Billing Portal will include rates, which are not relevant to Customer (reflecting the average use of a particular service). Matrix will not provide support for any billing issues related to Customer’s AWS Billing Portal.
    d. For the avoidance of doubt, Customer shall be charged in accordance with Matrix’ billing rates, which will be equal to prevailing AWS retail rates.
  3. Temporary Suspension

In case of suspension by AWS in accordance with AWS documents, Customer shall remain liable to AWS for: (1) All charges which had accumulated prior to the suspension; (2) All charges for any Services and/or access which Customer continued to receive, including data storage fees, commissions and charges which had been completed after the date on which the suspension took effect; (3) Customer shall not be entitled to credits from AWS in accordance with AWS’ policy; (4) Customer’s content shall not be deleted as a result of the suspension (unless stated otherwise in this Agreement); (5) AWS shall have the right to suspend Customer’s or any of End-Users’ access to or use of the Services, in addition to its right to terminate the agreement between AWS and Customer.

  1. Force majeure

Matrix and/or AWS shall not bear any responsibility for a delay or non-performance of any obligation under this Agreement which was attributable to circumstances beyond its reasonable control, including, inter alia, act of God, fire, natural disasters, floods, earthquake, storms or other elements of nature, embargoes, riots, disturbances, electrical or power outage, riots, industrial disputes or other disturbances, utilities or telecommunications failures, blockages, government action or orders, acts of terrorism or war.

  1. Confidentiality and publicity

Without derogating from AWS Documents (and with respect to Matrix, to the extent within Matrix control), neither party shall, without the other Party’s prior written consent, disclose, provide or make available any Confidential Information in any form to any person or entity or make use of such information, except to the extent necessary to enable the Parties to exercise their rights under this Agreement, all as provided in Exhibit A. Customer may only use information belonging to Matrix and/or AWS which was passed on to it within the framework of this Agreement in order to utilize AWS Terms, Services, Ancillary Support Services and/or Managed Services in accordance with this Agreement and its Exhibits. Each Party shall take all reasonable precautions to prevent the disclosure, distribution or unauthorized use of the information of the other, and at least those, which it would have taken in order to protect its own confidential information of a similar nature.

  1. Additional Services

Customer shall have an option to obtain from Matrix, with respect to this Agreement:

  1. Consulting services and Matrix will provide the Customer with Consulting Services pursuant to the terms and conditions of this Agreement (“Consulting Services”). In consideration for the performance of the Consulting Services, Customer shall pay to Matrix 90$ per hour + VAT, or as otherwise agreed between the Parties from time to time in writing (“Consulting Fees”), against Matrix hours breakdown report.
    b. Matrix will provide the Customer with DBA Services pursuant to the terms and conditions of this Agreement. In consideration for the performance of the DBA Services, Customer shall pay to Matrix 110$ per hour + VAT, or as otherwise agreed between the Parties from time to time in writing, against Matrix hours breakdown report.
    c. Managed services according the terms and conditions of Exhibit B attached hereto (“Managed Services”). In return for the performance of Managed Services, Customer shall pay to Matrix the Managed Services Fees set forth in Exhibit B.
  2. Term and Termination
  3. This Agreement shall come into force upon being signed by both parties and shall remain in force until terminated by one of the Parties as stated in section 13.c. below.
    b. Termination for reasons of convenience: Customer may terminate this Agreement for any reason by giving notice. In such case, Customer may retain Customer Account directly with AWS or, at Customer’s discretion, close Customer Account for the Services by following the applicable procedure on the Platform. Matrix may terminate this Agreement for any reason after giving 30 days prior notice.
    c. Termination as a result of breach: (1) Each party may terminate this Agreement by giving reasonable prior notice to the other if the other breached the Agreement and failed to remedy the breach within he notice period; (2) Matrix shall be entitled to terminate the Agreement by immediate notice : (i) In any case of delay of payment, Matrix may cancel the Agreement, provided that Customer had not paid Matrix the outstanding amount within 10 days of receiving Matrix’ written demand for it to do so. It is clarified that account access will remain with the matrix until full payment by Customer.; (ii) In the circumstances described in section 6 above; (iii) Upon termination of AWS’ contract with third Parties providing any part of the Services; (ivi) Where in the opinion of Matrix and/or AWS through Matrix, provision of the Services would create a significant economic or technological burden or security risk for Matrix and/or AWS; (v) According to law or the demand of a government body; (vi) Where in AWS’ opinion provision of the Services to Customer or its user is not practicable or illegal;
    d. Upon termination, Customer may retain Customer Account directly with AWS or, at Customer’s discretion, close Customer Account for the Services: (1) Customer’s rights under this Agreement shall end immediately except as set forth herein; (2) Customer shall continue to receive the Services, after the redemption of any accumulated Services Fee, until the date on which the Agreement shall actually end; (3) Upon being asked to do so (and to the extent Customer Account is not retained directly with AWS), Customer shall destroy all AWS content in his possession immediately; (4) All provisions of the Agreement which by their nature normally remain in force after termination of a contract, such as confidentiality, etc., shall continue to apply.
  4. General
  5. Customer shall only be entitled to assign its rights and obligations under this Agreement with Matrix’ prior written approval.
    b. This Agreement and its exhibits constitute the entire understanding between the Parties and replace any prior or simultaneous verbal or written communication, representation or Agreement between the Parties concerning the subject matter of this Agreement.
    c. This Agreement does not create any rights in favor of any third party.
    d. The Parties shall act as independent contractors in all matters concerning the implementation of this Agreement, no employer-employee relationship shall exist between the workers of one party and the other party and neither party to the Agreement shall undertake or give any approval and/or consent on behalf of the other without its prior written consent.
    e. A failure by one party to exercise any of its rights under this Agreement shall not constitute or be deemed to be a waiver or concession in relation to those rights.
    f. Should an expression or provision in this Agreement be held to be unlawful or unenforceable by a court of competent jurisdiction, this shall not prejudice the validity of the remaining provisions of this Agreement, and the parties agree to substitute for such unlawful or unenforceable provision a lawful and enforceable provision which most closely approximates the intent and effect of the unlawful or unenforceable provision.
    g. Each party shall pay its own costs in relation to this Agreement.
    h. This Agreement has been drawn up and shall be interpreted in accordance with the laws of the State of Israel. The courts in Tel Aviv-Jaffa shall have exclusive jurisdiction in any matter concerning or resulting from the subject matter of this Agreement.
    i. Notices shall be given by personal delivery, registered international mail, an overnight courier service that obtains a receipt to evidence delivery, or by e-mail. A notice sent by E-mail shall be regarded as having been received by the addressee only after receipt of an (non-automatic) E-mail confirmation by return confirming that the notice had been received (provided that such confirmation of receipt of the e-mail must occur within two (2) business days of receipt of the originating e-mail).
    j. This Agreement may be executed in one or more counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same instrument. This Agreement may be executed by signed e-mail (using a .pdf or other scanned version).

EXHIBIT A

(TO THE MATRIX (CLOUDZONE) – AWS AGREEMENT)

NON-DISCLOSURE AGREEMENT (“NDA”)

This Exhibit A – Non Disclosure Agreement (this “NDA”), (the “Effective Date”) is made by and between Matrix I.T. Integration and Infrastructures Ltd. (“Matrix,” “we,” “us,” or “our”) and you or the entity you represent (“you“, “Customer”). Please see Section 1 for definitions of certain capitalized terms used in this NDA. This NDA governs your access to and license the use of AWS’ Platform, Ancillary Support and Services (all as defined herein). If you are entering into this NDA on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to the terms and conditions of this NDA, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not or cannot agree to the terms and conditions of this NDA, you must not accept this NDA (by clicking the “cancel” or “no” or “close window” button or otherwise indicate refusal) and you may not use the License or the Services.

Matrix and Customer shall be referred to herein, each separately, as a “Party” and jointly as “Parties”.

This NDA consists an integral part of the “Matrix-Cloudzone-AWS Agreement” (the “Main Agreement”), reads together with the Main Agreement. All capitalized terms not otherwise defined herein shall have the meaning ascribed to same in the Agreement To the extent there is a contradiction between this NDA and the Main Agreement, this NDA will prevail. The stipulations of the Main Agreement not modified by the Agreement remain unchanged.

WHEREAS, each of the Parties owns, possesses or has developed certain technical and business information relating to the technology, business, products and product plans of such Party, its affiliates and/or of third parties; and in connection with and for the purpose the Main Agreement, each of the Parties (the “Discloser“) is willing to disclose to, and the other Party (the “Recipient“) may otherwise have access to and acquire, Confidential Information (as defined below).

NOW, THEREFORE, the Parties hereby agree as follows:

  1. Definition. “Confidential Information” shall mean any information and data, which by nature obviously is proprietary or confidential or which is designated by means of appropriate text to be of a proprietary or confidential nature, whether in oral, written, graphic, machine-readable form or in any other form, whether or not designated by Discloser as proprietary and/or confidential, disclosed and/or made available by Discloser to Recipient or otherwise acquired by Recipient as a result of or in connection with this NDA and/or the Parties’ discussions (whether prior to the execution hereof or thereafter).

Confidential Information shall include, without limitation, proprietary, business, financial, technical, clinical, development, experimental, formula, design, specifications, product (actual or planned and any derivatives thereof), marketing, sales, strategy, prices, customers, operating, employees, performance, cost, know-how, research, technique and process information, records and results, trade secrets, patents, patent applications, copyrights, improvements and inventions (whether patentable or not) and other works of authorship, and all record bearing media containing or disclosing such information and techniques. When appropriate, the term “Confidential Information” shall also include samples, models and prototypes, or parts thereof. The Parties’ discussions and the terms thereof shall be further deemed Confidential Information hereunder.

The confidentiality obligations of this NDA shall not apply to any information that the Recipient can able to prove by documents or other competent evidence: (a) is already or becomes in the public domain through no fault of Recipient or a breach of this NDA; (b) was, as between the Parties, lawfully in Recipient’s possession prior to receipt from Discloser; (c) is received by Recipient independently from a third party free to lawfully disclose such information to Recipient, or (d) is independently developed by Recipient without use of Confidential Information. Confidential Information shall not be deemed to be in the public domain merely because any part of the Confidential Information is embodied in general disclosure or because individual features, components or combinations thereof are now or become known to the public.

A disclosure by Recipient of Confidential Information in response to a valid order by a court or other governmental body, or as otherwise required by law, and to such extent necessary, shall not be considered to be a breach of this NDA, provided, however, that Recipient shall provide Discloser, subject to applicable law, with prompt prior written notice thereof to enable Discloser to seek a protective order or otherwise prevent or contest such disclosure.

Disclosure of the contents and the existence of this NDA by a party in connection with a due diligence inquiry and subject to confidentiality undertakings shall not be considered to be a breach of this NDA.

  1. Restrictions. Without derogating from AWS Documents (and to the extent within Matrix control), all Confidential Information delivered, made available or otherwise acquired pursuant to this NDA (a) shall not be copied, duplicated, distributed, disseminated or made available in any way or form by Recipient (or so allowed, aided or enabled by Recipient); (b) shall be maintained in confidence and in a place and manner that ensures such confidentially (which in any event shall be not less than customary industry standards), and may only be disclosed to those employees of Recipient who have a need to know and who have executed an obligation of confidentiality and restriction of use similar to the terms hereof; and (c) shall not be used or exploited by Recipient, directly or indirectly, for any purpose, except for the purpose of e the Main Agreement and any act related thereto.
  2. Duration. Recipient’s obligations hereunder with respect to each item of Confidential Information shall be perpetual, until such time as the Confidential Information shall have become public domain through no fault of Recipient.
  3. Term. This NDA shall be effective as of the date stated above and shall terminate when the Main Agreement is terminated provided, however that the provisions of Section 3 above and Sections 5-8 below shall survive the termination or expiration of this NDA.
  4. Return of Materials. Promptly following the earlier of (i) termination or expiration of this NDA; and (ii) within seven (7) days following a written request by the Discloser at any time, Recipient will deliver to Discloser all Confidential Information and all documents or media containing any such Confidential Information and any and all copies or extracts thereof (or shall have such documentation and/or media destroyed and shall so confirm in writing, at Discloser’s sole discretion).
  5. Mutual Disclaimers; No Proprietary Rights. The Parties shall have no obligation to enter into any further agreement with each other. Nothing herein shall be deemed to create any principal/agent, employee-employer, joint venture or other business relationship between the Parties. It is understood and agreed that Confidential Information is provided “AS IS”. No warranties, express or implied, of any kind are given by Discloser with respect to Confidential Information provided hereunder. The Parties also understand that all Confidential Information shall remain the sole property of Discloser (or its respective owner(s)), and that no patent, copyright, trademark or other proprietary right or license is granted by this NDA. Recipient understands that nothing herein requires the disclosure of any Confidential Information, which shall be disclosed, if at all, solely at the option of the Discloser.
  6. Injunctive and Other Relief; No Derogation of Rights. Since a breach by Recipient of any of the promises or agreements contained herein may result in irreparable and continuing damage to Discloser for which there may be no adequate remedy at law, Discloser may be entitled to seek injunctive relief and/or a decree for specific performance, and such other relief as may be proper (including monetary damages if appropriate) in any competent court. Nothing in this NDA shall be construed as derogating from any right or remedy that the Discloser may be entitled to under applicable law.
  7. General. This NDA shall bind and inure to the benefit of the Parties and their successors and assigns. Neither Party may transfer or assign any rights or obligations under this NDA without the prior written consent of the other Party, except to a successor in interest who is not a competitor of the other Party. This NDA represents the entire understanding and agreement between the Parties with respect to the confidentiality obligations relating to the subject matter hereof and supersedes all prior communications, agreements and understandings relating to the subject matter hereof. In the event that any of the provisions of this NDA shall be held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this NDA shall otherwise remain in full force and effect. No modification or amendment of this NDA will be valid unless executed by both Parties. The observance of any term hereof may be waived (either prospectively or retroactively and either generally or in a particular instance) only with the written consent of the Party against such waiver is sought and to such extent set forth therein; no failure or delay in enforcing any right will be deemed a waiver. Subject to the provisions of Section 7 above, the laws of the State of Israel shall govern this NDA, and the competent courts of the Tel Aviv-Jaffa district shall have exclusive jurisdiction in any matter arising out of or relating to this NDA.