Onebeat Ltd. End User License Agreement

Exhibit A: Terms of Use and Licensing

PLEASE READ THE TERMS AND CONDITIONS OF THIS EULA CAREFULLY BEFORE PROCEEDING WITH INSTALLATION OR USE OF THE ONEBEAT’S PRODUCT. 

• Definitions.

“Confidential Information” of a party means and includes all non-public information regarding the other Party which has been obtained before and after the execution of this Agreement whether in oral, written or in other form. The term “Confidential Information” includes in particular business, economic, financial, technical, commercial and personal data as well as names, addresses, lists and/or any other data of employees and of affiliates, business partners, customers, distributors, agents and contract dealers etc. of Licensee and Onebeat.

“Documentation” means the user manuals, training materials, and operating materials, if any, Onebeat provides to Licensee under this Agreement.

“Implementation Fees” means the fees Licensee must pay to Onebeat, as specified in the applicable Order Form, for the Implementation Services related to the setup and configuration of Onebeat’s cloud-based services.

“Implementation Services” means the services that the Licensee may elect to receive from Onebeat, as described in Section 5, related to the setup, configuration, and onboarding of Onebeat’s cloud-based services.

“Installation Site” means the business premises owned or leased and operated solely by the Licensee, as described in the Onebeat Order Form, where Licensee’s personnel may access and use Onebeat’s cloud-based services.

“Intellectual Property Rights” means any trade secrets, patents, copyrights, trademarks, know-how, moral rights and similar rights of any type under the laws of any governmental authority, domestic or foreign, including all applications and registrations relating to any of the foregoing.

“Order Form” means any Onebeat Order Form, which is subject to the terms and conditions of this Agreement.

“Services Provider” means a third party which is trained, certified, and expressly authorized by Onebeat to perform Implementation Services, and which Onebeat may designate to perform the Implementation Services ordered by Client.

“Software” means the software application(s) provided by Onebeat that Licensee subscribes to under this Agreement pursuant to an Order Form, including all updates and upgrades made available by Onebeat during the subscription term.

“Software Support” means the software support, that Licensee receives from Onebeat as part of this Agreement

“Software Support Plan” means the then-current software support plan, subject to payment of License Fees, that Onebeat makes generally available to its customers and offers to Licensee hereunder. 

 “Upgrades” means new versions of the Software that contain major enhancements or significant new functionality, as determined in Onebeat’s reasonable discretion.

• License Grant.

• License Grant. Subject to timely payment by Licensee of the License Fees, Onebeat hereby grants to Licensee a nonexclusive, non-transferable license, without rights to sublicense, to: (i) access and use the Software via the internet for Licensee’s internal business purposes; (ii) allow Licensee employees and contractors to use the Documentation and Software through the Licensee’s authorized access credentials for internal business purposes; and (iii) reproduce the Documentation solely as necessary to support the use by Licensee of the Software.

• Restrictions. Licensee shall not cause or permit reverse engineering, disassembly, de-compilation, or make any attempt to discover the source code of the Software. Licensee will not alter or impair any acknowledgment of copyright or other intellectual property rights of Onebeat that may appear in the Software and Documentation. Licensee shall not (i) further distribute, assign or resell the Software, (ii) rent, lease or loan the Software or (iii) use the Software for commercial time-sharing or service bureau use.

• Ownership. Subject to Section 2.1, Onebeat retains all right, title, and interest under its Intellectual Property Rights to the Software and the Documentation.Licensee retains ownership of its data hosted on Onebeat’s cloud platform. 

• Support. Licensee will receive Software Support and Upgrades under Onebeat’s the-current Software Support Plan, upon payment to Onebeat of the License Fees.

• Implementation Services. Onebeat will provide, or have provided by a Services Provider, Implementation Services to Licensee, subject to receipt by Onebeat of all Implementation Fees and other fees set forth in the applicable Order Form. In addition, Licensee agrees that Onebeat may authorize or assign performance of the Implementation Services to an Onebeat authorized Services Provider.

• Warranty. Onebeat warrants to Licensee that the Software as initially delivered hereunder and Upgrades thereto, in unaltered form, will perform substantially in accordance with the related Documentation during the term of this agreement, according to Onebeat’s SLA.

This limited warranty does not cover loss or damage for any: (i) modification or repair of the Software by Licensee or any third party other than Onebeat; (ii) failure or incompatibility of the Software with computer hardware or other software not supplied by Onebeat; or (iii) accident, neglect, failure of electric power, storage or use in improper or adverse environmental conditions, misuse, negligence, catastrophe, operator error, or causes other than ordinary and intended commercial use. If Licensee notifies Onebeat of the material nonconformance of the Software with the Documentation and if Onebeat confirms such nonconformance, Onebeat’s entire liability and Licensee’s sole and exclusive remedy shall be, at Onebeat’s option, to: (i) correct or provide a bug fix, error correction, or work around for documented reproducible nonconformance; (ii) replace the Software; or (iii) terminate this Agreement and refund the fees paid by Licensee for the Software. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6, ONEBEAT DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, SOFTWARE SUPPORT AND ANY IMPLEMENTATION SERVICES PROVIDED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

• Indemnification.

• Indemnification. Onebeat will defend any action brought against Licensee by a third party to the extent it is based on a claim that the Software, Upgrades, or Documentation supplied by Onebeat hereunder, when used by Licensee as authorized under Section 2, infringes any third party Intellectual Property Rights. Onebeat will pay any award against Licensee, or settlement entered into on Licensee’s behalf, based on such infringement, only if: (i) Licensee notifies Onebeat promptly in writing of the claim; (ii) provides reasonable assistance in connection with the defense and/or settlement thereof, at Onebeat’s expense; and (iii) permits Onebeat to control the defense and/or settlement thereof. In the event of an infringement action against Onebeat with respect to the Software, or in the event Onebeat believes such a claim is likely, Onebeat shall be entitled at its option to (i) appropriately modify the Software, or substitute other Software which, in Onebeat’s opinion, does not infringe any third party Intellectual Property Rights; (ii) obtain a license with respect to the applicable third party Intellectual Property Rights; or (iii) if neither (i) nor (ii) is commercially practicable, terminate this Agreement and refund to Licensee the License Fees received by Onebeat. THE FOREGOING STATES LICENSEE’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS OF ANY KIND.

• Limitations. Onebeat will have no liability to Licensee under any provisions of this Section 7 to the extent that any infringement or claim thereof is based upon: (i) modifications to the Software or Documentation made by Licensee or a third party other than Onebeat or (ii) the use of other than the most current release of the Software, including Upgrades, or Documentation delivered by Onebeat to Licensee if such claim would have been prevented by the use of the most current release made available to Licensee by Onebeat. Notwithstanding anything contained in this Agreement, Section 7 states Onebeat’s entire liability for actual or alleged infringement of Intellectual Property Rights and Onebeat shall have no additional liability with respect to any alleged or proved infringement.

• Limitation of Liability. IN NO EVENT SHALL ONEBEAT OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES WHATSOEVER, WHETHER RELATED TO OR ARISING OUT OF THIS AGREEMENT, THE SOFTWARE, THE DOCUMENTATION, THE SOFTWARE SUPPORT, THE IMPLEMENTATION SERVICES OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, OR OTHER PECUNIARY LOSS, EVEN IF ONEBEAT HAS BEEN ADVISED OF OR KNOWS OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ONEBEAT’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS RELATING TO THIS AGREEMENT, THE SOFTWARE, THE DOCUMENTATION, OR ANY SOFTWARE SUPPORT OR IMPLEMENTATION SERVICES, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID BY LICENSEE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

• Term and Termination. The term of this Agreement will begin on the Effective Date and will continue unless earlier terminated pursuant to this Section 9. Either party may terminate this Agreement upon thirty (30) days written notice of a material breach of this Agreement if the breaching party has not cured such breach within such thirty (30) day period. Notwithstanding the foregoing, Onebeat shall have the right to immediately terminate this Agreement for any use by Licensee of the Software or Documentation outside the scope of Section 2. Further, either party may terminate this Agreement at its convenience and without cause upon 30 days’ advance written notice of termination to the other party. Upon termination of this Agreement, at Onebeat’s discretion: (i)Licensee shall immediately return to Onebeat, or certify the destruction of, all copies of the Software and Documentation in Licensee’s possession or under its control; or, (ii) Onebeat will discontinue the Licensee’s access to the Software. The license granted herein shall automatically terminate upon any termination of this Agreement and all rights granted therein shall expire, without a need for further notice of termination specifically related to the license. Notwithstanding the foregoing, the rights and obligations contained in Sections 1, 3, 6, 7, 8, 10, and 11, and all payment obligations incurred prior to the termination of this Agreement, shall survive any termination of this Agreement.Upon termination of this Agreement, Onebeat will delete all Licensee data within 60 days, unless otherwise requested by the Licensee in writing and approved by Onebeat.
  
  Confidentiality. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except as set forth herein, and shall use reasonable efforts not to disclose such Confidential Information to any third party. Without limiting the foregoing, each of the parties shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other party under this Agreement. Each party shall promptly notify the other party of any misuse or unauthorized disclosure of the other party’s Confidential Information. The foregoing restrictions will not apply to information that: (i) is known to the receiving party at the time it receives Confidential Information from the disclosing party; (ii) has become publicly known through no wrongful act of the receiving party; (iii) has been rightfully received by the receiving party from a third party authorized to make such communication without restriction; (iv) is generally furnished to third parties by the owner without a similar restriction of the receiving party’s right; (v) has been approved for release by written authorization of the disclosing party; or (vi) is required by law to be disclosed after written notification by the receiving party to the disclosing party and provided that no protective order or other similar mechanism to maintain confidentiality is implemented.

Notwithstanding anything to the contrary set forth herein, during and after the term of this agreement, Onebeat may use non- Licensee and non-personally identifiable data within the Software for purposes of enhancing the Software, aggregated statistical analysis, technical support and other business purposes.

• Miscellaneous.

• Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Onebeat will have the right to assign this Agreement with prior written notice to the Licensee. The Licensee may not assign any of its rights or obligations hereunder without the prior written consent of Onebeat, which shall not be unreasonably withheld.

• Notices. All notices permitted or required under this Agreement shall be in writing and shall be delivered in person, emailed with confirmation or mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified in this Agreement or such other address as either party may specify in writing. Such notice shall be deemed to have been given upon receipt.

• Non-Waiver. No term or provisions hereof shall be deemed waived, and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of a breach by the other, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach.

• Independent Contractor. The parties’ relationship shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed to make either party an agent, partner, representative or principal of the other for any purpose.

• General. This Agreement shall be governed by and construed under the laws of the Country of Israel, excluding its conflicts of law principles. The parties hereby consent to the exclusive jurisdiction and venue of the State courts of Israel. The parties exclude the application of the United Nations Convention on Contracts for the International Sale of Goods if otherwise applicable. If any provision of this Agreement is deemed invalid or unenforceable, it will not affect the validity of the other provisions of this Agreement.

• Jurisdiction and Dispute Resolution for Global Use.
  This Agreement will be governed by the laws of Israel. Any disputes will be resolved by binding arbitration or the courts located in Israel, unless both parties agree to an alternative dispute resolution mechanism.

• Third Party Integrations.

Onebeat provides per quotation integration support with third-party applications as per the agreed scope. Onebeat is not responsible for any issues arising from the third-party services or any disruptions caused by changes in third-party APIs.

• Entire Agreement; Amendment. This Agreement, including all Exhibits hereto constitutes the final, complete and entire agreement between the parties with respect to the subject matter hereof, and supersedes any previous proposals, negotiations, agreements, or arrangements, whether verbal or written, made between the parties with respect to such subject matter. This Agreement shall control over any additional or conflicting terms in any of Licensee’s purchase orders or other business forms. This Agreement may only be amended or modified by mutual agreement of authorized representatives of the parties in writing.

• Service Level Agreement (SLA) and Uptime Guarantee.
  Onebeat guarantees 99.9% uptime for cloud services. In case of failure to meet this guarantee, Licensee may be eligible for service credits, based on downtime.

• Data Security and Privacy complience.

Onebeat employs a zero-tolerance policy towards data security from any access aspects. Our holistic security approach means your organization remains compliant with demanding regulations, and the data is safe from both malicious and accidental breaches.Apart from tightly centrally managed computing systems, antiviruses, firewalls and intrusion prevention systems, Onebeat is also committed to engineering excellence with a focus on security. We follow OWASP Secure Software Development Life Cycle Project (S-SDLC) best practices like encryption and security measures to protect Licensee data. Any data breach will be promptly notified, and necessary actions will be taken to mitigate impact.

• Disaster Recovery and Backup.

Onebeat performs daily backups of Licensee data and has a disaster recovery plan to ensure service continuity. In the event of a disaster, services will be restored within 48 hours.

Exhibit B: Support Level Agreement

1. Scope of Support Services

Onebeat will provide the following support services:

• Technical Assistance: Assistance with technical issues and inquiries. 
• Issue Resolution: Resolution of reported issues according to the specified severity levels.

2. Response and Resolution Time

Response, resolution time, and support hours will be as follows:

Severity	ONEBEAT PRO – RESPONSE AND RESOLUTION TIME
	FMR (First Meaningful Response)	TTR (Time to Resolution)
1	20 minutes	Maximum effort – Goal: 2 hours
2	4 hours	Up to 7 working days
3	5 working days	Up to 15 working days
4	10 working days	TBD on a case-by-case basis

2.1 Definitions of Severity

• Severity 1: Critical system failure/inoperative – Refers to an issue for which there are no workarounds and the client cannot use the application.
• Severity 2: Major impact problem – Although the system is operational, certain critical functionalities are unavailable and there are no workarounds.
• Severity 3: Issue that does not impact operations and/or for which there is an acceptable workaround.
• Severity 4: Issue with almost no impact on operations.

3. Support Coverage

Support will be provided:

• 8 hours/day, 5 days/week

4. Incident Management

• Reporting: Incidents should be reported via email at support@onebeat.zendesk.com.
• Resolution Timeframes: As specified above based on the severity of the issue.

5. Customer Responsibilities

Customers are responsible for:

• Reporting issues promptly with all necessary details.
• Responding in a timely manner to queries from the support department.

6. Onebeat Responsibilities

Onebeat is responsible for:

• Providing timely and effective support in accordance with the SLAs.
• Communicating any service updates or issues promptly.

7. Review and Amendments

This SLA will be reviewed annually. Any changes must be agreed upon by both parties in writing.