GENERAL
TERMS AND CONDITIONS
1.
THE
SERVICES
1.1.
Subject
to Customer’s compliance with and satisfaction of the Conditions Precedent set
forth in Annex A, Cellebrite shall use its best
efforts to provide the Services to Customer. The Services may include the
following:
1.1.1.
Unlocking and
extraction - Cellebrite shall make its best efforts to reveal the user lock
passcode and extract the data from certain Device(s).
1.1.2.
Cryptocurrency
review – Cellebrite shall review and process the data extracted from a certain
Device, using Cellebrite’s tools, in order to discover artifacts indicating of usage
of Cryptocurrency (exchange apps, Mnemonic Seed, Crypto addresses,
Public/private crypto keys, etc.) and shall compose a report setting forth its
findings.
1.1.3.
Investigative
Report – Cellebrite review and process the data extracted from a certain Device,
using Cellebrite’s tools, in order to locate specific content as requested by
the Customer, the search finding shall be presented in an investigation report generated
by Cellebrite.
1.2.
Prior to
delivering any Device(s) to Cellebrite labs or requesting Cellebrite personnel
to perform the Service on the
Device(s) at Customer’s premises,
Customer shall submit to Cellebrite a fully completed copy of the ‘Device Data’ form, a copy of which is
attached hereto as Annex B. After Cellebrite receives the fully
completed ‘Device Data’ form, Cellebrite shall notify Customer in writing of whether it agrees to
perform the Services on the Device(s) specified in the ‘Device Data’ form. Only after Cellebrite provides its
written acceptance of the Services with respect to each Device specified in the ‘Device Data’ form, Customer
shall deliver
any relevant Device to Cellebrite labs or request Cellebrite personnel to
perform the Service on the
Device(s) at Customer’s premises, as
applicable.
1.3.
Cellebrite
shall provide to Customer the Services as set out in the Services Agreement to which these General Terms and
Conditions are attached (together
the “Agreement”). Cellebrite may provide the Services through one or
more Affiliates. For the purposes of the Agreement, an “Affiliate” of a Party
means any entity, whether incorporated or not, that Controls, is Controlled by,
or is under common Control with such Party. “Control” means the ability,
whether directly or indirectly, to direct the affairs of another by means of
ownership, contract or otherwise. Cellebrite may subcontract the performance of
any of its obligations under the Agreement without the prior written consent of
Customer.
2.1.
These
General Terms and Conditions shall apply to the Services including with respect
to any Device accepted and received by Cellebrite from Customer.
2.2.
This
Agreement may not be varied, unless varied by an agreement made in writing and
executed by duly authorised representatives of the Parties.
2.3.
Customer
agrees not to engage in any deceptive, misleading, illegal or unethical
practices that may be detrimental to Cellebrite or to any of Cellebrite’s
products or services, including but not limited to the Services, and agrees to
comply with all applicable laws, rules and regulations (including, without
limitation, data protection, privacy, computer misuse, telecommunications
interception, intellectual property, and import and export compliance laws and
regulations) while using the Services.
3.1.
Unless
otherwise agreed in writing, Customer shall pay all amounts invoiced by
Cellebrite under the Agreement, including the Fees, within thirty (30) days
following receipt of a valid invoice issued by Cellebrite and in accordance
with the Payment Terms set forth in the Service Agreement.
3.3.
In the event
that Cellebrite is unable to
complete the Service for specific Device(s)
and the Service a specific
Device(s) within three (3) business days due
to a lack of time, Customer shall have the right to have Cellebrite transport the
Device to Cellebrite’s premises or to
Cellebrite’s designated laboratory to complete the Services on the applicable
Device. Once the Service is completed, Cellebrite shall ship the Device(s) back
to Customer, at Customer’s expense (in accordance with DAP Incoterms 2010). It
is hereby clarified that in the event that Cellebrite provides Customer with a
Completion Notice under which Cellebrite fails to achieve a Successful
Completion in respect of a specific Device, Customer shall not have the right to have Cellebrite transport
the Device to Cellebrite’s premises or to
Cellebrite’s designated laboratory.
3.4.
Subject to
Section ý3.2 above, Cellebrite
shall be entitled to impose or
pass on and Customer shall reimburse Cellebrite for any and all expenses directly resulting from the performance of its
obligations under the Agreement provided however that Customer has approved
such expenses in advance unless
Section 3.5 below applies.
3.7.
If Cellebrite
provides Customer with a Completion Notice that confirms Cellebrite’s failure to achieve a Successful Completion, Customer shall
have the right to reuse the applicable Voucher on another Device during the
Term applicable to such Voucher.
3.8.
If any sum
due and payable by the Customer hereunder is not paid on or before the due date
in accordance with the provisions of this Section ý2ý3 and in
accordance with the terms of payment set forth in the Service Agreement (“Unpaid
Amount”), the Unpaid Amount shall bear interest at the rate of 1.5% per month
from the due date (or such lesser amount as is the maximum rate
permitted under applicable law) until the date of full and final payment (as well after as before decree or
judgment) of the Unpaid Amount (including
any accrued interest).
3.9.
All amounts
payable under the Agreement are exclusive of, and Customer is responsible for
payment of, all taxes, charges and duties applicable to such amounts, including
without limitation any sales, use, value added, customs, excise, withholding
and similar taxes and duties imposed by any government entity (“Taxes”),
excluding Taxes based on Cellebrite’s net income. If Cellebrite is obligated to
collect Taxes, then the appropriate amount will be added to the applicable
invoice. If Customer is required to withhold or deduct any Tax from any payment
due hereunder, Customer will increase the sum payable to Cellebrite such that
Cellebrite receives an amount equal to the sum it would have received had Customer
made no withholding or deduction.
4.1.
In the event
that the Services are performed by Cellebrite at Cellebrite’s premises or to
Cellebrite’s designated laboratory, as shall be instructed by Cellebrite, the
Devices shall be delivered Ex Works (in accordance with Incoterms 2010) on the
delivery date agreed with Cellebrite during normal business hours to the
delivery address as shall be instructed by Cellebrite (“Delivery Address”).
4.2.
Customer
shall (i) issue advance shipment notices/dispatch notes to Cellebrite; (ii)
accompany all deliveries with a list all of the Devices (including unique
identification numbers) and such other information as reasonably requested by Cellebrite.
4.3.
After the
delivery of a Completion Notice to Customer with respect to each Device
provided to Cellebrite, Customer shall provide Cellebrite a written request to
ship the Devices under the Completion Notice back to Customer. According and
subject to Cellebrite’s receipt of such notice from Customer, Cellebrite will
ship such Devices Ex Works (in accordance with Incoterms 2010) to the Delivery
Address, at Customer’s expense.
4.4.
Customer shall
ensure that all packaging contains clearly identifiable and proper markings
consistent with Cellebrite’s instructions and all applicable laws and is secure
and tamper proof to ensure that the contents reach the delivery address in
undamaged condition.
5.1.
Each
Party warrants, represents and undertakes that:
5.1.1.
it
has and shall continue to have full ability, capacity and authority required by
law or otherwise to enter into and to perform its obligations under the Agreement
in a reliable and professional manner;
5.1.2.
the
Agreement is executed by a duly authorised representative of that Party;
5.1.3.
there
are at the Effective Date no actions, suits or proceedings or regulatory
investigations pending or, to that Party's knowledge, threatened against or
affecting that Party before any court or administrative body or arbitration
tribunal that might adversely affect the ability of that Party to meet and
carry out its obligations under the Agreement; and
5.1.4.
once
duly executed the Agreement will constitute its legal, valid and binding
obligations.
5.2.
Cellebrite
warrants, represents and undertakes that its performance of its obligations in
accordance with the terms of the Agreement and the provision of the Services
will not breach any agreement by which it is bound.
5.3.
Cellebrite
warrants, represents and undertakes that it has the professional skills
required to fulfil its obligations under the Agreement.
5.4.1.
Customer
and the Devices provided to Cellebrite under this Agreement are in full
compliance with the Conditions Precedent set forth in Annex A;
5.4.2.
it
has obtained, prior to the consummation of this Agreement, all approvals,
permits, licences, consents, authorisations, permissions, notices,
registrations, certifications, rulings, orders, judgements and other
authorisations from any applicable data subject, employee, employee
representative body, regulatory authority, or third party entity or person
necessary for the retention and performance of the Services (“Permissions”);
5.4.3.
the
execution, delivery and performance of this Agreement have been duly authorised
by all necessary corporate actions;
5.4.4.
neither
the execution and delivery of this Agreement, nor compliance by it with the
terms and provisions hereof and thereof, will conflict with, or result in a
breach of any judgment, order, writ, decree, statute, rule, regulation or
restriction;
5.4.5.
its
performance of its obligations in accordance with the terms of the Agreement
will not breach any agreement by which it is bound, or violate or infringe any
law or any copyrights;
5.4.6.
it
shall use reasonable endeavours to provide such information and assistance which
is reasonably required to fulfil Cellebrite's obligations under the Agreement;
5.4.8.
all
information provided by it to Cellebrite during the Term (as defined below)
shall be complete and accurate in all material respects, and that it is
entitled to provide the information to Cellebrite for its use as contemplated
under the Agreement;
5.4.9.
it
shall fulfil all of its obligations under the Agreement and shall cooperate
with Cellebrite in all matters relating to the Agreement; and
5.5.
Where
necessary for, or incidental to, the performance of the Services, Customer
authorises Cellebrite to:
5.5.1.
access
all Devices and all programmes, data and media contained on them;
5.5.2.
process
the data and media contained on the Devices, inter alia, by using Cellebrite’s
tools, technology and other means. The processing may include, collecting, analysing,
organising, and structuring the data or any part thereof;
5.5.3.
obtain
and retain personal data on the Devices or programmes, data and media contained
on them;
5.5.4.
access
and intercept communications on the Devices and programmes, data and media
contained on them; and
5.5.5.
use
technology or other means to circumvent measures designed to prevent
unauthorised access to Devices and all programmes, data and media contained on
them, including where such measures are designed to protect copyright works.
5.6.
Customer
shall provide to Cellebrite in a timely manner the following documents,
information, items, written evidence and materials in any form (whether owned
by Customer or third party) and ensure that they are accurate and complete in
all material respects:
5.6.1.
Customer’s
IT Policy;
5.6.2.
Customer’s Acceptable Use Policy;
5.6.3.
Customer’s “Bring Your Own Device” Policy; and
5.6.4.
evidence that Customer has obtained all Permissions required
to permit Cellebrite to perform the Services
5.7.
Customer
shall:
5.7.1.
implement
appropriate measures and policies to mitigate the risks of Customer's
employees, agents, subcontractors or consultants reporting any activities that
form part of Cellebrite's Services directly to any law enforcement authority;
and
5.7.2.
immediately
notify Cellebrite if, Customer becomes aware that any of Customer's employees,
agents, subcontractors or consultants have reported any activities that form
part of Cellebrite's Services directly to any law enforcement authority.
5.8.
The
warranties, terms and conditions stated in the Agreement are in lieu of all
other conditions, warranties, terms or representations concerning the subject
matter of the Agreement which might but for this Section ý5 have effect between Cellebrite and Customer or would otherwise be
implied or incorporated into the Agreement or any collateral contract whether
by statute, common law or otherwise, all of which are hereby excluded
(including, without limitation, the implied conditions, warranties or terms as
to satisfactory quality, fitness for purpose or as to the use of reasonable
skill and care).
5.9.
Customer acknowledges that unless otherwise
instructed, as part of the provision of the Services Cellebrite retains the
data extracted from the Device upon completion of the Services for a period of
three (3) months to support Customer.
5.10.
Customer acknowledges that the provision of the
Services, by Cellebrite is done on a premise of ‘best
effort’ and Cellebrite does not warrant or otherwise represent a guaranteed
success in achieving a Successful Completion (as such term is defined in the
Services Agreement) or any other objective as set by this Agreement. The
Parties agree that the Services are being performed solely for the purposes of accessing
the Device, extracting data from the Device and copying data from the Device. Customer
acknowledges that the provision of the Services by Cellebrite is done in good
faith and no act or omission of Cellebrite in performing the Services in
accordance with Customer's instructions shall be deemed to exceed Customer's
instructions or constitute a breach of contract, civil wrong or criminal
offence.
6.1.
Customer is obligated to comply with the law applicable in
connection with the business relationship with Cellebrite. Customer is obliged
to comply with Cellebrite’s then current business conduct policies.
6.2.
Customer commits itself not to (i) offer, promise or grant any
benefit to a public official for that person or a third party for the discharge of a
duty; (ii) offer, promise or grant an employee or an agent of a business for
competitive purposes a benefit for itself or a third party in a business
transaction as consideration for an unfair preference in the purchase of goods
or commercial services; (iii) demand, allow itself to be promised or to accept
a benefit for itself or another in a business transaction as consideration for
an unfair preference to another in the competitive purchase of goods or
commercial services; (iv) violate any applicable anticorruption regulations
and, if applicable, not to violate the US Foreign Corrupt Practices Act (FCPA)
and the UK Bribery Act.
6.3.
Upon
Cellebrite’s request, Customer confirms in writing that it adheres to the
obligations under this Section ý6 and that Customer is not aware of any breaches of
the obligations under this Section ý6. In the event of reasonable suspicion that the
obligations under this Section ý6 were not met, Cellebrite has the right, after
notifying Customer regarding the reasonable suspicion, to demand Customer in
accordance with applicable law to permit and participate - at its own expense -
auditing, inspection, certification or screening to verify compliance with the
obligations under this Section ý6. The proceedings referred to can be executed by
Cellebrite itself or a third party who is bound to secrecy and are exercised in
compliance with applicable laws.
6.4.
In the event
Customer is in contact with a Government Official concerning Cellebrite,
discussing or negotiating, or Customer engages a third party to do so, Customer
is obligated (i) to inform Cellebrite in advance and in writing, clearly
defining the scope of the interaction, (ii) upon request, to provide Cellebrite
with a written record of each conversation or meeting with a Government
Official and (iii) to provide Cellebrite monthly a detailed expense report,
with all original supporting
documentation. A “Government Official” is any person performing duties on
behalf of a public authority, government agency or department, public
corporation or international organization.
6.6.
In connection
with any investigations, indictments, motions, hearings, trials, or any other
form of judicial proceedings, whether civil or criminal (collectively, “Judicial
Proceedings”), the Customer hereby accepts, acknowledges, and agrees to
the following terms and conditions:
6.6.1.
Cellebrite’s
sources and methods of performing the Services (the “Sources and Methods”)
are proprietary and confidential Trade Secrets (as defined in Section 11.2
below). As such, Customer shall forebear, refrain and desist from seeking
disclosure, testimony, or other publication for any purpose at any time related
to such Trade Secrets. In any event, Cellebrite shall refuse any request or
demand to provide any disclosure, testimony, or any other communications
concerning such Sources and Methods.
6.6.2.
As a matter
of policy, Cellebrite shall not consent to service of defectively issued or
served subpoenas or other legal process. Cellebrite shall only respond to
properly served legal process issued by courts of competent jurisdiction over
Cellebrite.
6.6.3.
In the event
that Cellebrite is properly served with a subpoena seeking testimony concerning
any Services, issued by a court of competent jurisdiction, then any testimony
by Cellebrite personnel shall be limited to chain of custody issues concerning
any Device on which Services have been provided and any Data extracted from any
Device in connection with such Services.
6.6.4.
The names,
addresses, telephone numbers, email addresses, social security numbers, and
other personal information of Cellebrite employees and former employees is
Confidential Information (as defined in Section 11.1 below) that will not be
disclosed by Cellebrite except by order of a court with competent jurisdiction
over Cellebrite.
6.6.5.
Customer
shall bear all costs and expenses relating to Cellebrite’s involvement in any
Judicial Proceedings, including travel, lodging, and related out of pocket
expenses. Customer shall further pay Cellebrite the then applicable day
service rates for the involvement by Cellebrite personnel in Judicial
Proceedings for each day that Cellebrite personnel are unable to work at
Cellebrite’s offices due to involvement in such Judicial Proceedings.
6.6.6.
The Customer
shall indemnify and hold harmless Cellebrite in connection with any document
demands, subpoenas, legal process, in connection with any Judicial Proceedings
by parties or their counsel, in relation to the Services provided by
Cellebrite, including reimbursement of all costs and expenses, including
reasonable attorneys’ fees.
6.7.
In the event
Customer, despite respective notification, violates obligations under this
Section ý6 and cannot prove that the respective violation has occurred without
fault or that adequate measures were taken to prevent respective violations
from being made, Cellebrite has the right to withdraw from or terminate the
Agreement. These termination rights also apply in the event of serious one-time
violations unless Customer is not at fault. In addition, existing contractual
and/or legal termination rights continue to exist independently and
unlimitedly.
6.8.
Customer
shall indemnify Cellebrite and Cellebrite’s employees from any liability
claims, demands, damages, losses, costs and expenses that result from a
culpable violation of this Section ý6 by Customer.
7.2.
Either
Party may terminate this Agreement for any reason at any time by furnishing the
other Party with a notice of termination thirty (30) days prior to such notice
of termination having effect.
7.3.
Notwithstanding
the Term of the Agreement, the Agreement may be terminated immediately by
either Party by giving written notice, where the other Party commits a material
breach of the Agreement which is not cured within five (5) days following the
notification of such breach.
7.4.
Cellebrite may terminate the Agreement with immediate effect in the event that Cellebrite reasonably determines that it can no
longer comply with the terms of the Agreement in accordance with the
requirement of any applicable law, rule and/or regulations.
7.5.
Unless
otherwise expressly provided herein, the termination of the Agreement for any
reason shall not give either Party the right to claim any compensation,
indemnity or reimbursement whatsoever from the other by reason of such
termination, but termination shall be without prejudice to any rights or
remedies available to, or any obligations or liabilities accrued to, either Party
at the effective date of termination.
7.6.
Notwithstanding
the aforementioned, upon any termination or expiry of the Agreement,
Sections ý2, ý3, ý4.6, ý5, ý6, ý7.4, ý9, ý10, ý11, ý12, ý13, and this
Section ý7.6 to the Agreement and any other Section or annex
which should reasonably survive termination of the Agreement shall continue to be in force and effect even
after termination or expiry of the
Agreement and shall be without prejudice to the rights of
either Party in respect of any antecedent breach of the Agreement.
7.7.1.
In the event
that the Customer purchased either (i) one (1) Voucher; (ii) five (5) Vouchers;
or (iii) ten (10) Vouchers, each Voucher shall remain in full force and effect
for a period of twelve (12) months from the date on which Cellebrite issued the
Voucher to the Customer.
7.7.2.
In the event
that the twenty-five (25) Vouchers, each Voucher shall remain in full force and
effect for a period of twenty-four (24) months from the date on which
Cellebrite issued the Voucher to the Customer.
7.7.3.
In the event
that the Customer purchased a bundled solution (a.k.a Premium Unlimited
Package) which includes (i) Cellebrite Advance Services; and (ii) Cellebrite
Premium, each Voucher shall remain in full force and effect during the
Cellebrite Premium License Term (as such term is defined under the Cellebrite
Premium Agreement).
7.8.
In the event
of termination of the Agreement and/or expiration of the Term of the Voucher all
Services shall be considered as completed by Cellebrite and the Customer shall
not be entitled to any refund and/or any other rights driving from such
Services.
8.
FORCE
MAJEURE
8.1.
No
Party hereto shall be liable for delays in performance caused by any extreme
circumstance or event beyond the said Party's reasonable control and which was
unforeseeable and unpreventable by said Party, and which interferes with the
performance of the Services or agreements related thereto (“Force Majeure”). For avoidance of any doubt, Force Majeure shall
include, but not be limited to, acts of God, war (whether declared or
undeclared), act of terrorism, strikes, fires, accidents, floods, civil
disturbance and natural disasters. Upon the ceasing or termination of Force
Majeure, the Parties hereto shall resume their responsibilities under the terms
of the Agreement within seven (7) days (or, if the same is not possible, within
reasonable period of time).
8.2.
The
Force Majeure exonerates of liability the Party which invokes it, to the extent
that this Party submits to the other Party a written notification within five
(5) days as of the occurrence of the Force Majeure.
9.1.
The Parties
hereby acknowledge that nothing herein shall constitute an employer – employee
relationship between them, during the Term or thereafter, and under no
circumstances shall Cellebrite or any of its group companies or others on its
behalf be or be deemed to be an employee of Customer.
9.2.
No
provision of the Agreement creates a partnership between the Parties or makes a
Party the agent of the other Party for any purpose.
9.3.
Customer has
no authority to bind or obligate Cellebrite by contract or otherwise, nor make
any representations or warranties, without Cellebrite’s prior written authorization.
9.4.
The
provisions of this Section ý9 shall survive
the termination of the Agreement.
10.2.
Customer
shall be the controller and Cellebrite shall be the processor in respect of any
personal data processed by Cellebrite on Customer’s behalf in performing its
obligations under this Agreement.
10.3.
Customer
acknowledges and agrees that the Personal Data may be transferred or stored
outside the EEA or the country where Customer is located in order to carry out
the Services and Cellebrite's other obligations under this Agreement.
10.4.
Customer
shall ensure that:
10.4.1.
Customer is
entitled to transfer the relevant personal data to Cellebrite so that
Cellebrite may lawfully use, process and transfer the personal data in
accordance with this Agreement on Customer's behalf; and
10.4.2.
the relevant
third parties have been informed of, and have given their consent to, such use,
processing, and transfer as required by all applicable data protection
legislation.
10.5.
Cellebrite
shall process the personal data only in accordance with the terms of this Agreement
and any lawful instructions reasonably given by Customer from time to time.
10.6.
Each Party shall
take appropriate technical and
organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss,
destruction or damage.
10.7.
Customer
shall have sole responsibility for the legality, reliability, integrity, accuracy
and quality of any data provided by Customer to Cellebrite, including on any
equipment or Devices which are provided to Cellebrite for the purposes of
performing the Services.
10.8.
In the event
of any loss or damage to any data provided to Cellebrite in connection with
this Agreement, Customer’s sole and exclusive remedy shall be for Cellebrite to
use reasonable commercial
endeavours to restore the lost or damaged
data from the latest back-up of such data maintained by Cellebrite in
accordance with Cellebrite's internal archiving procedure. Cellebrite shall not
be responsible for any loss, destruction, alteration or disclosure of data
caused by any third party (except those third parties sub-contracted by
Cellebrite to perform services related to data maintenance and back-up).
10.9.
Cellebrite
shall, in providing the Services, comply with its internal privacy and security
policies relating to the privacy and security of the data provided by Customer
in connection with this Agreement, as such documents may be amended from time
to time by Cellebrite in its sole discretion.
11.1.
Each Party
acknowledges that in the course of performing its duties hereunder, it may
receive or become aware of proprietary and confidential information, technical
data, technical or operational process, know-how, business plans, customer
lists (including any personally-identifiable data relating to Customers), and Trade
Secrets (as defined below) of the other Party and other information that the
receiving Party should reasonably believe to be confidential (“Confidential
Information”), and that the disclosure or unauthorized use of any such
Confidential Information may cause irreparable damage to the disclosing Party.
Each Party shall at all times maintain in the strictest confidence, and cause
its employees, consultants, sub-contractors, and any other person acting on its
behalf, to maintain in the strictest confidence, all such Confidential
Information, and shall not use, access, disclose, disseminate, process, store
or otherwise handle any Confidential Information of the disclosing Party, other
than as required for performance of its obligations, and exercise of its
rights, under the Agreement.
11.2.
Pursuant to
18 U.S.C. §1833(b), Customer shall not be held criminally or civilly liable
under any Federal or State trade secret law for the disclosure of Cellebrite’s
Trade Secrets (as defined below) only if such disclosure is made: (i) in
confidence to a Federal, State, or local government official or to an attorney,
solely for the purpose of reporting or investigating a suspected violation of
law; or (ii) in a complaint or other document filed in a lawsuit or other
proceeding, if such filing is made under seal. In court proceedings claiming
retaliation by Cellebrite for Customer’s reporting a suspected violation of
law, Customer may only disclose Cellebrite Trade Secrets to Customer’s legal
counsel and may only use the Trade Secret information, if Customer (i) files
documents containing Trade Secrets under seal; and (ii) Customer does not
otherwise disclose Cellebrite Trade Secrets, except pursuant to a court order.
“Trade Secret”
means all forms and types of financial, business, scientific, technical,
economic, or engineering information, including patterns, plans, compilations,
program devices, formulas, designs, prototypes, methods, techniques, processes,
procedures, programs, or codes, whether tangible or intangible, and whether or
how stored, compiled, or memorialized physically, electronically, graphically,
photographically, or in writing if: (a) Cellebrite has taken reasonable
measures to keep such information secret; and (b) the information derives
independent economic value, actual or potential, from not being generally known
to, and not being readily ascertainable through proper means by, another person
who can obtain economic value from the disclosure or use of the information.
11.3.
The Confidential
Information of a Party shall not include and this Section ý11 shall not
apply to data or information which: (i) was publicly available at the time it
was disclosed or becomes publicly available, except through the fault of the
receiving Party; (ii) was known to the receiving Party at the time of
disclosure without an obligation of confidentiality; (iii) was disclosed after
written approval of the disclosing Party; or (iv) becomes known to the
receiving Party from a source other than the disclosing Party without breach of
theAgreement by the receiving Party. Nothing in theAgreement
shall prevent the receiving Party from disclosing Confidential Information to
the extent the receiving Party is legally compelled to do so by any
governmental investigative or judicial agency pursuant to proceedings over
which such agency has jurisdiction; provided, however, that prior to any such
disclosure, the receiving Party shall, unless prohibited by law (a) assert the confidential
nature of the confidential information to the agency; (b) immediately notify
the disclosing Party in writing of the agency's order or request to disclose;
and (c) reasonably cooperate with the disclosing Party in protecting against
any such disclosure or obtaining a protective order narrowing the scope of the
compelled disclosure and protecting its confidentiality
11.4.
Each
Party shall immediately upon becoming aware of the same give notice to the
other of any unauthorised disclosure, misuse, theft or other loss of
Confidential Information of the other Party, whether inadvertent or otherwise.
11.5.
The provisions
of this Section ý10ý11 shall survive
the termination of the Agreement for any reason whatsoever.
11.6.
During the
Term, and for additional period of three (3) years thereafter Customer shall
not, directly or indirectly, (i) solicit, endeavor to entice away from Cellebrite
or otherwise interfere with the relationship of Cellebrite with any person or
organisation who is, or was within the three (3) years preceding the effective
date of termination of the Agreement, a customer, employee, consultant or office
holder of Cellebrite; or (ii) own an interest in, manage, operate, join,
control, or participate in or be connected with, as an officer, executive, partner,
stockholder, consultant, service provider or otherwise, any person or organisation
in an activity which directly competes with Cellebrite’s activities at the time
of the termination of the Agreement.
11.7.
Both Parties agree
to maintain the details of this Agreement, including without limitation the
Services provided hereunder, their respective terms and existence, as
confidential information. Unless as may be required by applicable law, any of
the Parties requiring to revel the existence of this Agreement or any detail or
term of it, including without limitations any information regarding the Services,
will obtain a prior and written consent from the other Party.
12.2.
Nothing
in the Agreement shall limit or exclude either Party’s liability:
12.2.1.
for
any losses, liabilities, fines, charges, damages, actions, costs and expenses,
professional fees (including legal fees actually incurred) and disbursements
and costs of investigation, litigation, settlement, judgment, interest and
penalties (“Loss”) to
the extent it is caused by fraud, dishonesty or deceit;
12.2.2.
for
death or personal injury caused by its (or its agents') negligence;
12.2.3.
that
may not otherwise be limited or excluded by law.
12.3.
Except
as set out in Sections ý12.1 and ý12.4, neither Party, nor any member of Customer group,
will be liable whether based on a claim in contract, tort (including
negligence), under an indemnity, breach of statutory duty or otherwise arising
out of, or in relation to, the Agreement, for:
12.3.1.
any
loss of profit;
12.3.2.
loss
of goodwill;
12.3.3.
loss
of further business;
12.3.4.
loss
or corruption of, any records, software, programs or other data or information;
or
12.3.5.
any
indirect or consequential Losses (including where such loss or damage is of the
type specified in Section ý12.3.
12.4.
The
limitations and exclusions of liability set out in Section ý12.3 will not apply in respect of the indemnities detailed
in Section ý12.6 and ý12.7 and the obligation of Customer to pay undisputed
charges which have already become due to Cellebrite in accordance with the
Agreement.
12.5.
Each
Party shall use its best effort to mitigate loss which, for the avoidance of
doubt, shall apply to any Losses within the scope of any indemnity under the Agreement.
12.7.1.
indemnify
and hold Cellebrite and its group companies, officers and directors harmless
from any claim (whether brought by a third party or an employee, consultant or
agent of Customer’s)
12.7.1.1.
arising
from any use of the Services, or any deliverable provided by Cellebrite as part
thereof, in a manner other than as authorised under the Agreement or under any
law;
12.7.1.2.
arising
from any steps taken by Cellebrite to provide the Services (or any
deliverables), pursuant to an instruction from Customer, which is contrary to
any applicable law;
12.7.1.3.
for
any breach by Customer of Section ý5.4.7 of the Agreement; or
12.7.1.4.
for any breach by Customer of Section ý10 of the Agreement;
12.7.2.
reimburse
on demand Cellebrite for any expenses, costs and liabilities (including
reasonable attorney fees) incurred relating to such claim; and
12.7.3.
pay
on demand all settlements, damages and costs assessed against Cellebrite and
attributable to such claim.
13.1.
Notwithstanding
any other provision of this Agreement, each Party shall retain responsibility
for its compliance with all applicable export control laws and economic
sanctions programs relating to its respective business, facilities and
provision of services to third parties. In performing their respective
obligations under this Agreement neither Party will be required to undertake
any activity that would violate any applicable laws or mandatory regulations,
including any applicable export control laws and economic sanctions programs.
13.3.
For
the avoidance of doubt, the terms of this Agreement shall be considered as
Cellebrite’s Confidential Information. Customer shall not communicate in any
form with the media or make any disclosure, publication, press release or any
other announcements on any matter concerning this Agreement and/or Cellebrite
and/or the Services without the prior written consent of Cellebrite.
13.4.
Except
where the context otherwise requires, the terms “including” and “includes”
shall mean “including without limitation” and “includes without limitation”,
respectively.
13.5.
Capitalised terms used under this Agreement shall have the meaning
ascribed to them in the Service Agreement, unless otherwise defined herein.
13.6.
Section
headings in this Agreement are intended solely for convenience, and will have
no meaning in or effect on the interpretation of the Agreement.
13.7.
Customer
will fully cooperate with any third party company that Cellebrite chooses to
engage during the term of this Agreement in any way necessary to enable proper
provision of the Services.
13.8.
This
Agreement, together with its appendices, contains all the terms agreed between
the Parties regarding the subject matter and supersedes and replaces any prior
agreement, understanding or arrangement between the Parties, whether oral or in
writing. No representation, undertaking or promise shall be taken to have been
given or be implied from anything said or written in negotiations between the Parties
prior to this Agreement except as expressly stated in this Agreement. Neither Party
shall have any remedy in respect of any untrue statement made by the other upon
which that Party relied in entering into this Agreement (unless such untrue
statement was made fraudulently). Without prejudice to the foregoing, the only
remedy available to a Party in respect of a breach of any representation which
is incorporated into this Agreement shall be for breach of contract.
13.9.
This
Agreement may be executed in any number of counterparts, each of which is an
original and all of which together evidence the same agreement.
13.10. This Agreement may not
be amended except by an agreement in writing expressed to vary this Agreement
signed by duly authorised representatives of the Parties.
13.11. Failure or neglect by
either Party to enforce at any time any of the provisions hereof shall not be
construed as nor shall be deemed to be a waiver of that Party’s rights
hereunder nor in any way affect the validity of the whole or any part of this
Agreement nor prejudice that Party’s right to take subsequent action. The
terms of this Agreement may only be waived by a document in writing which makes
reference to this Agreement and the Parties hereto.
13.12. This Agreement and/or
the rights and/or obligations rising from this Agreement may not be assigned
and/or pledged without the prior written authorisation of the other Party.
13.13. It is expressly
declared that no rights shall be conferred under this Agreement on any person
other than Customer and Cellebrite, and no person other than Customer and
Cellebrite shall have any right to enforce any term of this Agreement.
13.14. In the event any
provision of this Agreement is held to be invalid or unenforceable, the
remaining provisions of this Agreement will remain in full force and effect.
13.15. All notices shall be
given in writing, and will be deemed to have been delivered to the addressee
immediately on their delivery if delivered by hand or within 72 hours after
being sent by registered mail, as per the addresses set forth above or such
other address as a Party may hereafter give notice to the other Party.
13.16. The construction,
validity and performance of this Agreement and all non-contractual obligations
arising from or connected with this Agreement shall be governed exclusively by
the laws of the State of Israel.
13.17. Each Party irrevocably
agrees to submit to the exclusive jurisdiction of the courts
in Tel Aviv over any claim or matter arising under or in connection with this
Agreement.
Annex
A
Conditions Precedent
1.
General
The Parties acknowledge and agree to fulfil the conditions set forth in
this Annex A to the Agreement for the provision of Services by Cellebrite under
the Agreement (the “Conditions Precedent”).
Customer acknowledges that in the event that any of the Conditions
Precedent are not met, achieved or maintained throughout the Term of the
Agreement by Customer, Cellebrite will not be able to provide the Services to
Customer and shall be entitled to terminate the Agreement forthwith.
Customer further acknowledges that Cellebrite’s non-performance of the
Services which is due to a default of Customer to meet the Conditions Precedent
will not be deemed as breach of the Agreement and Customer will not be entitled
to any refund of payments made to Cellebrite and Cellebrite will be entitled to
charge any direct expenses it incurred in preparation and anticipation for the
service provision.
2.
Conditions
Precedent for Service performed at Cellebrite’s premises or to Cellebrite’s
designated laboratory.
2.1.
After
submitting the fully executed ‘Device Data’ form to Cellebrite and prior to
sending any Device(s) to Cellebrite, Customer is to receive a written
confirmation and consent from Cellebrite to sending the Devices. Cellebrite’s
approval or denial for sending the Device shall be based, among others, on
Cellebrite’s internal list of the then-current Service supported devices.
3.
Conditions
Precedent for Service performed at Customer premises
3.1.
After
submitting the fully executed ‘Device Data’ form to Cellebrite, Customer will work with Cellebrite’s designated person
to coordinate timeframe for arrival to perform the Service.
3.2.
Customer
shall provide written confirmation of Customer’s allocation of a designated
room (the “Designated Room”) to performance of the Services. Until
Successful Completion of the Services, the access to such Designated Room
should be restricted to Cellebrite’s personnel only.
3.3.
The
Designated Room is to be suitable for 1-2 people conveniently working and be
equipped with at least 4 power outlets.
3.4.
Cellebrite shall have the right to inspect the Designated Room
prior to the commencement of provision of the Services. In the event that
Cellebrite finds the Designated Room not suitable for the performance of the
Services, Customer shall either make the room suitable or designate a different
room.
3.5.
Customer shall
assure and approve in writing that the Designated Room is not videotaped and/or
monitored in any manner except for entry/exit monitoring which is allowed and
encouraged.
3.6.
Customer
shall provide written confirmation approving Cellebrite’s personnel to carry
into Customer’s premises and in the Designated Room, the required equipment in
a sealed packaging and assure that the equipment will not be inspected before,
during or after performance of the Services.
3.7.
Customer
shall obtain, at Customer’s expense, and provide to Cellebrite’s personnel any
documents, permit (including but not limited to visa), approvals or invitations
which are required by Customer or by the laws of the country in which Customer
and/or the Designated Room is located.