CELLEBRITE PREMIUM UNLIMITED PACKAGE
GENERAL TERMS AND CONDITIONS
1. Definitions
1.1. In these Cellebrite Premium Unlimited Package General Terms and Conditions (the “GTC”):
1.1.1. “Action” shall mean each one specific forensic capability which includes, but is not limited to, successfully revealing the passcode of certain supported mobile devices (as shall be updated from time to time at Cellebrite’s sole discretion) and/or extraction of data from that certain supported mobile device while using Cellebrite Premium;
1.1.2. “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;
1.1.3. “Agreement” shall mean the Cellebrite Premium Unlimited Package Agreement to which these GTC apply together with these GTC or, in the absence of such agreement, a Quote together with these GTC;
1.1.4.
“CAS
Services” shall mean the usage of Cellebrite’s best efforts to reveal
the user lock passcode and/or extraction of data stored on a Device;
1.1.5.
“Cellebrite”
shall mean Cellebrite DI Ltd. or its Affiliates;
1.1.6. “Completion Notice” shall mean the notice provided by Cellebrite to the Licensee confirming either satisfaction or failure (as applicable) to achieve a Successful Completion with respect to one (1) Device;
1.1.7.
“Device” shall mean a supported
electronic device, including mobile phones or tablets, computer systems,
programs, applications, servers, telecommunications or electronic
communications systems;
1.1.8.
“Instance
of Service” shall mean the performance of CAS Services on one (1) Device
provided by the Licensee;
1.1.9. “Licensee” shall mean the contracting party which engaged with Cellebrite under the Agreement;
1.1.10.
“Person”
shall mean and include an individual, a partnership, a joint venture, a
corporation, a limited liability company, a limited liability partnership, a trust,
an incorporated organization and a governmental or regulatory authority;
1.1.11. “Product” shall mean the Cellebrite Premium product and Cellebrite’s proprietary Software embedded therein as identified in the Agreement and to be supplied under the Agreement between Cellebrite and Licensee;
1.1.12.
“Quote”
shall mean a Quote attached to the Agreement;
1.1.13.
“Quoted
Price” shall mean all prices set forth in the Quote;
1.1.14.
“Restricted
Territories” shall mean any of those jurisdictions or territories that are
(i) the subject or target of sanctions or terrorist-supporting territory,
including, without limitation, Iran, Syria, Lebanon, Palestinian territories,
North Korea, Sudan and the Crimea region, or (ii) a regulated territory in
which Licensee does not have the licences, permits, authorisations and
approvals that are required by all applicable laws issued by the relevant
regulatory authority to carry out Licensee’s business activity using the
Product and/or the Software;
1.1.15.
“Successful
Completion” shall mean the achievement of successful decoding of the
passcode of each Device provided by the Licensee.
1.2. In these GTC, unless the context otherwise requires: (i) words expressed in the singular number shall include the plural and vice versa, (ii) words expressed in the masculine shall include the feminine and neutral gender and vice versa; (iii) references to Sections are references to sections of these GTC; and (iv) reference to “day” or “days” are to business days, which shall be any day, other than a Saturday or Sunday or a day on which banks located in the United States shall be authorized or required by law to close.
2. Product License
2.1. Notwithstanding anything to the contrary agreed in a Quote, Cellebrite Premium is licensed to Licensee under a non-exclusive, worldwide, royalty free, non-transferrable, limited license.
2.2. Any license granted by Cellebrite to Licensee to use any Software, including such Software that is embedded in the Product shall be subject to the terms and conditions of the then current end user license agreement found at: http://legal.cellebrite.com/End-User-License-Agreement.html (“EULA”) and which may be attached to the Product. In the event of any conflict between these GTC and the EULA, the EULA shall take precedence over these GTC in all matters related to the Software.
2.3.
Any
and all Actions purchased during any License Term shall remain valid during the
then-current License Term (as such term is defined in the EULA). Unused Actions
are non-refundable and not renewable.
2.4.
The
Parties hereby acknowledge and agree that iOS Actions and Android Actions are
not interchangeable. In the event that during the License Term the Licensee
consummated all purchased Android Actions, the iOS Actions cannot be exchanged
for additional Android Actions, and vice versa.
2.5.
Licensee acknowledges that Cellebrite does not guarantee that each Action is successful in
revealing the Devices’ passcode using the Product.
3.
Cellebrite Performance of Services
4. Consideration
4.1. Unless otherwise agreed in writing, the Quoted Price shall be paid in full by Licensee to the account(s) indicated by Cellebrite. The Quoted Price, or any part thereof, is non-refundable. All payments shall be made in US currency or other currency mutually agreed by the Parties. The payment is considered made at the date when the amounts effectively reach Cellebrite’s bank account.
4.2.
The
Quoted Price does not include transportation, insurance, federal, state, local,
excise, value-added, use, sales, property (ad valorem), and similar taxes or
duties now in force or hereafter enacted which all shall be paid by Licensee.
Licensee shall pay all taxes, fees, or charges of any nature whatsoever imposed
by any governmental authority on, or measured by the transaction between
Licensee and Cellebrite, in addition to the Quoted Price or invoiced. In the
event Cellebrite is required to collect the foregoing, Licensee will pay such
amounts promptly unless it has provided Cellebrite with a satisfactory valid
tax exemption certificate authorized by the appropriate taxing authority.
4.3. Licensee shall reimburse Cellebrite for
all pre-approved expenses directly resulting from the performance of its
obligations under these GTC. Notwithstanding
anything to the contrary, the Licensee acknowledges that there are instances
where expenses, by the nature of the work to which they relate, must be
incurred by Cellebrite before Licensee consent can be obtained in accordance
with this Section 4.3. Licensee shall reimburse Cellebrite for any and all expenses
reasonably incurred by Cellebrite without Licensee consent where obtaining such
consent would be impracticable.
4.4.
Terms of Payment and Default Interest. Payment of the Quoted Price shall be made
without any right of set-off or deduction. All payments are due in accordance
with the payment terms set forth in the Quote; provided, however, that in
the event Cellebrite has approved in writing any credit terms, Licensee shall
pay the invoiced amount in strict compliance with the payment terms specified
in the Quote. An interest charge of one and one-half percent (1.5%) per month
on all amounts will be attached to any payments which are not paid on time accruing
on a daily basis and compounding monthly from the date such amounts were due.
In the event Licensee delays shipments other than as authorized by Cellebrite,
Cellebrite may invoice Licensee when Cellebrite is prepared to ship the
Product.
5.
Title, Delivery
and Risk
5.1. The title of the Product (including the Software embedded therein) shall remain vested with Cellebrite at all times and shall not pass to Licensee. Licensee shall not do nor permit to be done any of the following without Cellebrite's prior written consent: (i) sell, transfer, lease, sublease, assign, or otherwise dispose of the Product or any interest therein, (ii) part with possession or control of the Product, or (iii) pledge, hypothecate, mortgage, grant a security interest in or otherwise encumber the Product.
5.2. Delivery obligations of Cellebrite (including the delivery location and time period) shall be as set forth in the Quote. The Product shall be free from any pledge, lien, charge, hypothecation, encumbrance or other security interest upon its delivery to Licensee.
5.3. If the CAS Services are to be 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) at Licensee’s risk, cost and expense, on the delivery date agreed with Cellebrite during normal business hours to the delivery address as shall be instructed by Cellebrite. In addition, the Licensee shall perform the following:
7.1. The Products shall be subject to the terms of warranty set forth in Appendix I to these GTC (Warranty).
8. Representations and Warranties
8.1. Each Party warrants, represents and
undertakes that: (i) 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;(ii)
there are 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.
8.2. Licensee warrants, represents and undertakes that: (i) Licensee is in full compliance with the Prerequisites under the Agreement; (ii) 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 use of the Product by Licensee or performance of an Instance of Services (“Permissions”); (iii) the execution, delivery and performance of this Agreement have been duly authorised by all necessary corporate actions;(iv) 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; (v) 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; (vi) it shall use reasonable endeavours to provide such information and assistance which is reasonably required to fulfil Cellebrite’s obligations under the Agreement; (vii) it has the right to be in possession of, access, interact with and otherwise use, all devices, equipment, programmes, data and media (including any telecommunications systems) that are being used in connection with the Product or the Instances of Service and that the use of the Product or any Instance of Service, including any instructions given to Cellebrite in connection with the same, is made in compliance with all data protection and criminal laws and other applicable laws; and (viii) all information provided by it to Cellebrite during the term of the Agreement 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.
8.3. Where necessary for, or incidental to, any servicing by Cellebrite of the Product or Cellebrite’s performance of any Instance of Service, Licensee authorises Cellebrite to:
8.3.1. access all Devices and all programmes, data and media contained on them;
8.3.2. obtain and retain personal data on the Devices and programmes, data and media contained on them;
8.3.3. access and intercept communications on the devices and programmes, data and media contained on them; and
8.3.4. 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.
8.4. Licensee acknowledges
that any Instance of Services performed by Cellebrite is made on a premise of
‘best effort’ and that Cellebrite does not guarantee that any Instance of Service will be successful in
revealing a Device’s passcode.
8.5.2. Licensee’s Acceptable Use Policy;
8.5.3. Licensee’s “Bring Your Own Device” Policy; and
8.6.2. immediately notify Cellebrite if, Licensee becomes aware that any of
Licensee’s employees, agents, subcontractors or consultants have reported any
activities that form part of the services provided by Cellebrite under this
Agreement directly to any law enforcement authority.
9. Intellectual Property
9.1. Any and all intellectual property rights relating to the Product and/or to the Software embedded therein, including without limitation, all patents, trademarks, algorithms, binary codes, business methods, computer programs, copyrights, databases, know-how, logos, concepts, techniques, processes, methods, models, commercial secrets and any other intellectual property rights, including any new developments or derivative works of such intellectual property, whether registered or not, are and shall remain the sole and exclusive property of Cellebrite.
9.2. If and to the extent that Cellebrite engages in any servicing of the Product and the provision of the CAS Services to the Licensee which shall involve the processing personal data, the Parties shall adhere to Appendix II.
10. Confidentiality
10.1. Each Party agrees (i) subject to disclosure required by law, regulation or the requirement of a competent authority, to keep the other Party’s Confidential Information in strict confidence, with such at least the same level of care as it uses for its own confidential information, but at least reasonable care; (ii) not to disclose the other Party’s Confidential Information, in whole or in part, to any Person or entity, unless requested to do so by the other Party, and (iii) keep in a safe place, and safeguard all Confidential Information exposed to or materials received from the other Party, and return them immediately upon its first demand, and delete or erase any Confidential Information which could not be returned (including any software backups) immediately following first demand, and provide the other Party with a written evidence of such action.
10.2. 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.
For
the purpose of these GTC, ”Confidential Information” shall
mean any technical, business or other information related to such Party’s actual
or planned business, including but not limited to, know-how, inventions, data,
drawings, designs, diagrams, software programs and their sources, processes,
methods, formulae, prototypes and models, all whether or not marked as
confidential and whether or not covered by patents, patent applications,
copyrights or other proprietary rights protection, and Trade Secrets (as
defined below), agreements, documents, names of potential suppliers or
customers, proposed business deals, reports, plans, market studies, surveys and
projections, and any other information which is confidential or proprietary in
nature.
“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.
11.1. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY:
11.1.1. FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE;
11.1.2. FOR ANY LOSS CAUSED BY FRAUD, DISHONESTY, OR DECEIT (INCLUDING FRAUDULENT PRE-CONTRACTUAL MISREPRESENTATIONS MADE BY ONE PARTY TO THE OTHER);
11.1.3. THAT MAY NOT OTHERWISE BE LIMITED OR EXCLUDED BY LAW.
11.4. SUBJECT TO SECTIONS 11.1, 11.2, 11.3AND 11.5OF THESE GTC, CELLEBRITE’S ENTIRE LIABILITY TO LICENSEE FOR ANY DAMAGES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE SHALL BE LIMITED TO THE TOTAL AMOUNT PAID BY LICENSEE TO CELLEBRITE DURING THE TWELVE (12) MONTH PERIOD THAT IMMEDIATELY PRECEDED THE EVENT THAT GAVE RISE TO THE APPLICABLE CLAIM.
11.5. THE LIMITATION OF LIABILITY
CONTAINED IN THIS SECTION 11 SHALL NOT APPLY TO (I) LICENSEE’S PAYMENT OBLIGATIONS TO
CELLEBRITE HEREUNDER; (II) EACH PARTY’S CONFIDENTIALITY OBLIGATIONS; (III)
LICENSEE’S VIOLATION OF CELLEBRITE’S INTELLECTUAL PROPERTY RIGHTS; AND (IV)
LICENSEE’S INDEMNITY OBLIGATIONS.
12. Licensee Indemnity
12.1.
Licensee
will, at its own expense: (i) indemnify and hold Cellebrite and its affiliates,
officers and directors harmless from any claim (whether brought by a third
party or an employee, consultant or agent of Licensee’s) arising from any use
of the Product or Software in a manner other than as authorized under these
GTC, the applicable Quote, the Prerequisites under the Agreement or under
any law or arising from any steps taken by Cellebrite to provide an Instance of
Services (or any deliverables) pursuant to an instruction from Licensee; (ii)
reimburse on demand Cellebrite for any expenses, costs and liabilities
(including reasonable attorney fees) incurred relating to such claim; and (iii)
pay on demand all settlements, damages and costs assessed against Cellebrite
and attributable to such claim.
13.1. Subject to the terms of the Agreement and any ancillary documents thereto, each Party is responsible to the other Party for damages it may cause to the other Party by its willful acts and for its failure to fully or duly perform the conditions hereof.
13.2. Licensee will not, directly or indirectly, use, resell, deliver, transfer, lend, or otherwise make available the Product and/or the Software to any of Cellebrite’s competitors.
13.3. Licensee will not directly or indirectly use the Product and/or the Software, or otherwise resell, deliver, transfer, lend, contribute or otherwise make available the Product and/or Software to any party, person or entity in connection with any terrorist activity or activity or business in any of the Restricted Territories in violation of sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Department of State (including, without limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security Council (“UNSC”), the European Union, Her Majesty’s Treasury or other relevant economic sanctions authority.
13.4. Cellebrite may modify the list of Restricted Territories in its sole discretion. Cellebrite will notify Licensee of any such modifications.
13.5. Both Parties shall comply with Cellebrite’s Business Conduct Policy available at http://legal.cellebrite.com/intl/Business_Conduct_Policy.htm. If a Party breaches the Business Conduct Policy, the non-breaching Party may terminate this Agreement by giving ten (10) days’ prior written notice to the breaching Party.
14.1. Licensee is obligated to comply with the law applicable in connection with the business relationship with Cellebrite.
14.2. Licensee represents warrants and
covenants that it shall not engage in any deceptive, misleading, illegal
or unethical practices that may be detrimental to Cellebrite or to any of
Cellebrite’s products, including but not limited to the Product or the Software
and shall only use the Products or Software in compliance with all
applicable laws and regulations (including, without limitation, data
protection, privacy, computer misuse, telecommunications interception,
intellectual property, and import and export compliance laws and regulations or
the applicable foreign equivalents).
14.3. Licensee and its subsidiaries and Affiliates will not (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, and; (iv) violate any applicable anticorruption regulations and, if applicable, not to violate the US Foreign Corrupt Practices Act (FCPA) and the UK Bribery Act or any other applicable antibribery or anti-corruption law. Licensee further represents, covenants and warrants that it has, and shall cause each of its subsidiaries and/or Affiliates to, maintain systems of internal controls (including, but not limited to, accounting systems, purchasing systems and billing systems) to ensure compliance with the FCPA, the U.K. Bribery Act, or any other applicable anti-bribery or anti-corruption law.
14.4. Upon Cellebrite's request, Licensee will confirm in writing that it complies with this Section 14 and is not aware of any breaches of the obligations under this Section. If Cellebrite reasonably suspects that Licensee is not complying with this Section 14 then, after notifying Licensee regarding the reasonable suspicion, Cellebrite may demand that Licensee, in accordance with applicable law, permit and participate in - at its own expense - auditing, inspection, certification or screening to verify Licensee’s compliance with this Section 14. Any such inspection can be executed by Cellebrite or its third party representative.
14.5. In the event Licensee is in contact with a Government Official concerning Cellebrite, discussing or negotiating, or Licensee engages a third party to do so, Licensee 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.
14.6. Cellebrite may immediately terminate this Agreement and any applicable Purchase Orders if Licensee violates its obligations under this Section. Nothing contained in this Section 14 shall limit any additional rights or remedies available to Cellebrite.
14.7. Licensee 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 14 by Licensee.
14.8. Licensee will pass on the provision of this Section 14 to its affiliates and bind its affiliates accordingly and verify the compliance of its subsidiaries or affiliates with the provisions of this Section 14.
16. Force Majeure
16.2. A Party seeking the protection of Section 16.1 shall provide written notice to the other Party within five (5) days of the beginning of the Force Majeure event.
17. Commercial Software
17.1. The Product, Software, CAS Services, and Documentation were developed exclusively at private expense and qualify as “commercial items” consisting of “commercial computer software” and “computer software documentation”, respectively, as such terms are defined and used at FAR (48 C.F.R.) 2.101. Use, duplication or disclosure of the Software by the U.S. Government are subject to restrictions set forth in this Agreement, in accordance with FAR 12.212 or DFARS 227.7202-4, as applicable.
18. Miscellaneous
18.2. No Waiver. No course of dealing or failure of either Party to strictly enforce any term, right or condition of these GTC or the terms of the applicable Quote shall be construed as a waiver of such term, right or condition.
i.
Governing
Law. The
construction, validity and performance of these GTC, the Agreement and the
applicable Quote, and any non-contractual obligations arising from or connected
with the same, and any disputes or claims
arising hereunder are governed by the laws of and subject to the exclusive jurisdiction
of the country of incorporation of the Cellebrite entity which issued the
Quote, without giving effect to any choice of law rules or principles.
Notwithstanding anything to the contrary, in the event that of sales made in
the United States of America to a Licensee that is not a Federal Government of the United States of
America (or an agency thereof), the construction, validity and
performance of these GTC, the Agreement and the applicable Quote, and any
non-contractual obligations arising from or connected with the same, and any disputes or claims arising hereunder are governed
by the laws of the State of New York and subject to the exclusive jurisdiction
of the federal or state courts in New York, without giving effect to any
conflict of Law rules or principles. Notwithstanding anything to the contrary,
in the event that of sales made in the United States of America to a Licensee
that is a Federal Government of the United States of America (or an agency thereof), the
construction, validity and performance of these GTC, the Agreement and the
applicable Quote, and any non-contractual obligations arising from or connected
with the same, and any disputes or claims
arising hereunder are governed by Federal Government contracting Law, without giving effect to any
choice of Law rules that would result in the application of any Law of any
other jurisdiction. Notwithstanding anything
to the contrary, in the event that the selling entity is Cellebrite GmbH, the construction, validity and
performance of these GTC, the Agreement and the applicable Quote, and any
non-contractual obligations arising from or connected with the same, and any disputes or claims arising hereunder are governed
by and construed in accordance with the law of England and Wales and the
Parties hereby submit to the exclusive jurisdiction of the English courts and,
without giving effect to any conflict of Law rules or principles. The United
Nations Convention on Contracts for the International Sale of Goods (except
that sales or licenses in the United States of America shall not exclude the
application of General Obligations Law 5-1401), and the Uniform Computer
Information Transactions Act do not apply to this Agreement. Cellebrite may, at
its sole discretion, initiate any dispute or claim against Buyer, including for
injunctive relief, in any jurisdiction permitted by applicable Law.
18.3. In any event, the United Nations Convention for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. The competent courts in New York shall have the exclusive jurisdiction in any dispute arising from these GTC or the applicable quote or the Agreement, including disputes relating to non-contractual obligations. The Parties agree not to bring any claim regarding such a dispute in any other court, and to waive unconditionally any objection to the laying of venue in such forum, including any claim of inconvenient forum.
18.4. Publicity. Licensee entitles Cellebrite to list Licensee as one of Cellebrite’s customers. For the avoidance of doubt, the terms of these GTC and the terms of the applicable Quote shall be considered as Cellebrite’s Confidential Information. Licensee shall not communicate in any form with the media or make any disclosure, publication, press release or any other announcements on any matter concerning these GTC and/or Cellebrite and/or the Product and/or the Software without the prior written consent of Cellebrite.
18.5. Headings. The headings used in these GTC and the Quote are for reference purposes only and shall not be deemed to in any way affect the interpretation of any term or provision hereof. Licensee shall not communicate in any form with the media or make any disclosure, publication, press release or any other announcements on any matter concerning these GTC and/or Cellebrite and/or the Product and/or the Software without the prior written consent of Cellebrite.
18.6. Language. Except where the context otherwise requires, the terms “including” and “includes” shall mean “including without limitation” and “includes without limitation”, respectively. If any term hereof shall be held to be invalid or unenforceable for any reason, then the meaning of such term shall be construed so as to render it enforceable to the extent feasible. If no feasible interpretation would save such term hereof, it shall be severed herefrom, but without in any way affecting the remainder of such term or any other term contained herein, unless such severance effects such a material change as to render the terms of these GTC unreasonable.
18.7. Termination. Either Party hereto may terminate the Agreement: (i) for its convenience by giving the other thirty (30) days’ prior written notice; (ii) by giving the other Party a written notice to be immediately effective in case the other causes a material or continuous breach hereof (“continuous” meaning two or more occurrences of the same breach). All of Licensee’s obligations undertaken hereinabove and hereunder, mutatis mutandis, shall survive the expiration or termination of the Agreement. The Parties acknowledge and agree that termination of this Agreement will not entitle Licensee to any deduction of the Quoted Price or any refund of any prepaid fees, including any part of the Quoted Price. Upon termination of the Agreement, for any reason, Licensee shall allow Cellebrite to access its premises for the purposes of de-installation and transfer of the Product.
18.8. Third Party Rights. A person who is not a party to the Agreement, these GTC and the Quotes shall not acquire any rights under them or be entitled to benefit from any of their terms.
18.9. Counterparts. This Agreement may be executed in any number of counterparts, including using digital signatures or exchange of scanned copies of signed pages (e.g., in PDF format), each of which shall be deemed an original but all of such together shall constitute one and the same instrument.
18.10. Relationship. The Parties intend to create an independent contractor relationship and nothing contained in this Agreement shall be construed to make either the Licensee or Cellebrite partners, joint ventures, principals, representatives, agents or employees of the other. Neither Party shall have any right, power, or authority, express or implied, to bind the other.
*
* *
Appendix I
Warranty
Cellebrite warrants to Licensee
that for a period of sixty (60) days after the date of shipment, the Software
embedded in the Product will perform substantially in conformity with its
Documentation. As Licensee’s sole and exclusive remedy, Cellebrite will,
at its sole expense, and as its sole obligation, promptly repair or replace any
Software that fails to meet this limited warranty. Subject to the EULA, Software shall be provided with an
initial twelve (12) months licence which may be renewed by Licensee for
additional terms against payment of the applicable subscription fees to
Cellebrite (the “Software License Period”). During the Software License
Period Cellebrite shall provide Licensee with periodical Software Updates (as
defined below), at Cellebrite’s sole and absolute discretion.
“Update” means an
update to the Software that is provided by Cellebrite and that may incorporate
(i) corrections of any substantial defects; (ii) fixes of any minor bugs; (iii)
at the sole discretion of Cellebrite, allowing additional compatibility of the
Software with cellular phones provided by third parties; and/or (iv) at the
sole discretion of Cellebrite, minor enhancements to the Software, as the case
may be; provided, however, that Updates shall not include Software upgrades.
B. Exclusions:
Notwithstanding anything
to the contrary in these GTC, the warranties herein do not apply to, and
Cellebrite makes no warranties with respect to any failure of the Software to
conform with its Documentation (“Defect”) during the Software License
Period if the Defect is caused by: (a) Licensee’s misuse, damage, or
unauthorized modification of the Products or Software; (b) Licensee’s
combination of the Products or Software with other products or software, other
than as authorized in writing by Cellebrite; (c) placement of the Products or
Software in an operating environment contrary to specific written instructions
and training materials provided by Cellebrite to Licensee; (d) Licensee’s
intentional or negligent actions or omissions, including physical damage, fire,
loss or theft of a Product; (e) cosmetic damage to the outside of a Product,
including ordinary wear and tear, cracks or scratches; (f) maintenance of the
Products or Software in a manner that is contrary to written instructions provided
by Cellebrite to Licensee; (g) a product or service not provided, authorized or
approved by Cellebrite for use with the Products or Software; (h) any repair
services not authorized or approved by Cellebrite; (i) any design,
documentation, materials, test data or diagnostics supplied by Licensee that
have not been authorized or approved by Cellebrite; (j) usage of any test
Products, experimental products, prototypes or Products from risk lots (each of
which is provided “AS IS” to the maximum extent permissible by law); (k) any
third party original equipment manufacturer’s restrictions on individual phones
or models of phones that prevent the phones or models of phones from working
with the Products or Software; (l) any damage to a third party device alleged
to or actually caused by or as a result of use of a Product or Software with a
device; (m) any Products that have had their serial numbers or month and year
of manufacture or shipment removed, defected or altered; (n) any interactions
or other effects relating to or arising out of the installation of copies of
the Software beyond the number of copies authorized by an agreement between
Cellebrite and Licensee; (o) use of Products or Software incorporated into a
system, other than as authorized by Cellebrite; or (p) any Products or Software
that has been resold or otherwise transferred to a third party by Licensee. In
addition, notwithstanding anything to the contrary in these GTC, the warranties
herein do not apply to, and Cellebrite makes no warranties with respect to
computer or other platform on which the Software is installed or otherwise
embedded.
C. Warranty
Limitations:
EXCEPT AS STATED IN THIS
WARRANTY, CELLEBRITE, ITS SUBSIDIARIES AND AFFILIATES, SUBCONTRACTORS AND
SUPPLIERS EXCLUDE ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, AND
SPECIFICALLY DISCLAIM ANY WARRANTY AND/OR CONDITION THAT THE PRODUCTS WILL BE
OF SATISFACTORY QUALITY OR FIT FOR A PARTICULAR PURPOSE. TO THE MAXIMUM
EXTENT PERMITTED BY LAW, LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR FAILURE OF AN
ITEM TO CONFORM WITH ITS SPECIFICATIONS SHALL BE CELLEBRITE’S OBLIGATION (i) TO
REPAIR OR (ii) TO REPLACE OR, (iii) IF NEITHER (i) NOR (ii) IS COMMERCIALLY
FEASIBLE, TO CREDIT OR REFUND (AT CELLEBRITE’S OPTION) SUCH ITEM AS SET FORTH
ABOVE. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS
WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.
D. Repaired
or Replaced Products:
Before returning a
Product for service, Cellebrite recommends that Licensee back up any data
contained in such a Product.
Appendix II – Data Processing Addendum
1. Licensee commissions, authorizes and
requests that Cellebrite provide Licensee the CAS Services, which involves
Processing Personal Data (as these capitalized terms are defined and used in
the General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679, in
Directive 2016/680 on the processing of personal data by authorities for the
purposes of the prevention, investigation, detection or prosecution of criminal
offences, and in national laws supplementing the GDPR or transposing and
implementing that directive (all collectively referred to as “Data Protection
Law”)).
2. When performing the CAS Services,
Cellebrite is acting as a Processor or a sub-processor on behalf of Licensee
and Licensee and Cellebrite are each responsible for complying with the Data
Protection Law applicable to them in their roles as Controller and
Processor/sub-processor, respectively (as these terms are defined and used in
Data Protection Law).
3. With respect to those activities of
Cellebrite as a Processor, Cellebrite will Process the Personal Data, only on Licensee’s
behalf, for as long as Licensee instructs Cellebrite to do so, only as set
forth in this Addendum and shall not Process the Personal Data for any purpose
other than the purpose set forth in the next section.
4. The subject matter and purposes of the
Processing activities are the unlocking of end-user digital devices (e.g.,
mobile phones), decoding data from digital devices and extracting data from
digital devices, collecting end user data from cloud services, and performing
analysis and analytics on such end user data – all as the case may be pursuant
to the Agreement and Licensee’s instructions. The Personal Data Processed may
include, without limitation:
a. Data
and meta data from end-user digital devices; End user data and meta data from
cloud services
b. Names,
titles and contact information of Licensee’s employees
5. The Data Subjects, as defined in the
Data Protection Law, about whom Personal Data is Processed are data subjects
with respect to which Licensee uses Cellebrite’s Products and Services and Licensee’s
employees.
6. With respect to those activities of
Cellebrite as a Processor, Cellebrite will Process the Personal Data only on
documented instructions from Licensee, unless Cellebrite is otherwise required
to do so by law to which it is subject (and in such a case, Cellebrite shall
inform Licensee of that legal requirement before processing, unless that law
prohibits such information on important grounds of public interest).
7. Licensee may only use the services to
process Personal Data pursuant to a recognized and applicable lawful basis
under Data Protection Law. Licensee is solely responsible for determining the
lawfulness of the data processing instructions it provides to Cellebrite and
shall provide Cellebrite only instructions that are lawful under Data
Protection Law.
8. Cellebrite will make available to Licensee
all information in its disposal directly relevant to Licensee and the services
performed and necessary to demonstrate compliance with the obligations under
Data Protection Law, shall maintain all records required by Data Protection
Law, and shall make them available to Licensee upon request.
9. Licensee acknowledges and agrees that
Cellebrite uses the following sub-processors to Process Personal Data relating
to names, titles and contact information of Licensee’s employees: Microsoft
Corporation, Amazon Web Services, Inc., Signiant Inc., Salesforce.com, and
Oracle.
10. Licensee authorizes Cellebrite to engage
other sub-processors for carrying out specific processing activities of the CAS
Services, provided that Cellebrite informs Licensee at least 21 days in advance
of any new or substitute sub-processor, in which case Licensee shall have the
right to object, on reasoned grounds, to that new or replaced sub-processor. If
Licensee so objects, Cellebrite may not engage that new or substitute
sub-processor for the purpose of Processing Personal Data in the provision of
the Platform and may terminate the Agreement with Licensee for convenience,
without liability to Licensee for such premature termination.
11. Licensee instructs Cellebrite and its
sub-processors to Process the Personal Data only in member states of the
European Economic Area, in territories and territorial sectors recognized under
an adequacy decision pursuant to Data Protection (e.g., Israel; U.S. companies
certified to Privacy Shield), or in territories in which the recipient is bound
by adequate safeguards recognized by the European Commission as pursuant to
Data Protection Law (e.g. Model Clauses).
12. Cellebrite will procure that the
sub-processors Process the Personal Data in a manner consistent with
Cellebrite’s obligations under this Appendix II and Data Protection Law, with
such obligations imposed on that sub-processor by way of law or contract, in
particular providing sufficient guarantees to implement appropriate technical
and organizational measures in such a manner that the processing will meet the
requirements of Data Protection Law.
13. In Processing Personal Data, Cellebrite
will implement appropriate technical and organizational measures to protect the
Personal Data against accidental or unlawful destruction or accidental loss,
alteration, unauthorized disclosure or access in accordance with Article 32 of
the GDPR and Cellebrite’s IT Security Policy which Licensee can request a copy
of from Cellebrite. Cellebrite will ensure that its staff authorized to Process
the Personal Data have committed themselves to confidentiality or are under an
appropriate statutory obligation of confidentiality.
14. Cellebrite shall allow for and contribute
to audits, including carrying out inspections on Cellebrite's business premises
conducted by Licensee or another auditor mandated by Licensee during normal
business hours and subject to a prior notice to Cellebrite of at least 30 days
as well as appropriate confidentiality undertakings by Licensee covering such
inspections in order to establish Cellebrite's compliance with this Appendix II
and the provisions of the applicable Data Protection Law as regards the
Personal Data that Cellebrite processes on behalf of Licensee. If such audits
entail material costs or expenses to Cellebrite, the Parties shall first come
to agreement on Licensee reimbursing Cellebrite for such costs and expenses.
15. Cellebrite shall assist Licensee by any
appropriate means available to it and applicable to its provision of the CAS
Services, to ensure compliance with the provisions of Data Protection Law on
the data subject's rights.
16. Subject to sections 17 and 18 below,
Cellebrite will delete the Personal Data it has Processed on Licensee's behalf
under this Addendum from its own and its sub-processor’s systems in due course
following the date of cessation of the provision of the CAS Services involving
the Processing of Personal Data. Upon Licensee’s request, Cellebrite will
furnish written confirmation that the Personal Data has been deleted pursuant
to this section.
17. Subject to section 18 below, Licensee
may, by written notice to Cellebrite, require Cellebrite to (a) return to Licensee
any Personal Data in Cellebrite's possession or control; or (b) delete the
Personal Data it has Processed on Licensee's behalf.
18. Notwithstanding the foregoing, Cellebrite
may retain the Personal Data to the extent required by applicable laws and only
to the extent and for such period as required by applicable laws, provided that
Cellebrite shall ensure the confidentiality of all such Personal Data and shall
ensure that such Personal Data is only Processed as necessary for the purposes
specified in the applicable laws requiring its storage and for no other
purpose.
19. Cellebrite shall without undue delay
notify Licensee of any ‘Personal Data Breach’ (as this term is defined and used
in Data Protection Law) that it becomes aware of regarding Personal Data of
Data Subjects that Cellebrite Processes. Cellebrite will use commercial efforts
to mitigate the breach and prevent its recurrence. Licensee and Cellebrite will
cooperate in good-faith on issuing any statements or notices regarding such
breaches, to authorities and Data Subjects.
20. Cellebrite will assist Licensee with the
eventual preparation of data privacy impact assessments and prior consultation
as appropriate, provided, however, that if such assistance entails material
costs or expenses to Cellebrite, the Parties shall first come to agreement on Licensee
reimbursing Cellebrite for such costs and expenses.
21. Cellebrite will provide Licensee prompt
notice of any request it receives from authorities to produce or disclose
Personal Data it has Processed on Licensee’s behalf, so that Licensee may
contest or attempt to limit the scope of production or disclosure request.
22. All notices required or contemplated
under this Appendix II to be sent by Cellebrite will be sent either by
electronic mail to Licensee to the email address that Cellebrite has on file
for Licensee’s main contact person.