Deskfirst Service Agreement

This Deskfirst service agreement (the “Agreement”) made pursuant to an Order Form (as defined below) constitutes a binding contract between Deskfirst Inc. and its subsidiaries (“Deskfirst”, "we", "us" or "our") and the entity identified in the Order Form (“Customer”).

This Agreement applies solely to customers that have purchased the Deskfirst services pursuant to a Deskfirst-issued Order Form that has been accepted and executed by both parties, thereby qualifying such customer as an Enterprise User as defined in the Terms of Service. This Agreement does not apply to, and does not govern, any purchases, subscriptions, or use of the Deskfirst services that are not made pursuant to an executed Order Form, including purchases completed solely through self-service sign-up flows, online checkout pages, or Stripe checkout, without a corresponding Deskfirst-issued and executed Order Form. Such purchases are governed exclusively by Deskfirst’s Terms of Service or other applicable click-through terms.

(Deskfirst and Customer will each be referred to as a “Party” and both collectively, the “Parties”).

WHEREAS  Deskfirst offers a software-as-a-service (SaaS) platform that provides shared digital workspaces for business collaboration (the “Service); and

WHEREAS  Customer wishes to use the Service within the Customer’s organization and with potential prospects.

NOW THEREFORE, in consideration of the mutual covenants hereinafter, by Customer agreeing to an Order Form which references this Agreement, the Parties agree as follows:

1. Definitions

Unless otherwise expressly stated herein, the terms defined in this Section, or parenthetically defined elsewhere, shall have the same meaning throughout this Agreement, and any and all Order Forms, attachments and amendments hereto.

1.1. “Deskfirst Technology” means Deskfirst’s products, technology tools, product designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, trade secret, know-how, methodology, platforms, apps, application programming interface (“API”), and any other tools or programs used by or for Deskfirst on its behalf with regard to its Service, and any related IP Rights related thereto throughout the world and also including any derivatives, improvements, translations, enhancements or extensions of or to the foregoing. Deskfirst Technology excludes Customer Data.

1.2. "Customer Data” means all data or information uploaded, transmitted, shared or generated by Customer, its Users and its Invitees through use of the Service.

1.3. “Effective Date” as set forth in the applicable Order Form.

1.4. "Feedback” means information or content concerning enhancements, changes, or additions to the Service or other Deskfirst offerings, that are requested, desired or suggested by the Customer or its Users.

1.5. "Invitee" means a prospect who has been granted access to shared workspace by Customer.

1.6. "IP Rights” or “Intellectual Property Rights” means all intellectual property rights comprising or relating to patent, trademarks, tradenames, internet domain names, whether or not trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, website and URLs; works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, data, data files, and databases and other specifications and documentation; trade secrets; and all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the laws of any jurisdiction throughout in any part of the world.

1.7. “Order Form” means the order form that Customer has accepted or signed (including, but not limited to, by way of Customer issuing a purchase order pursuant to the quote or proposal provided by Deskfirst), in each case specifying, among others, the Customer’s details, the duration of the provision of the Service to Customer, the fees and payment terms applicable to this Agreement, the usage metrics, parameters and capacity limitations for the Customer’s use of the Service, the integrations supported, timetables and rollout plan. Such Order Form is available online and incorporated by reference to this Agreement, as further detailed in Section 4.1 hereto, and constitutes an integral part of it.

1.8. “Output Data” means the various reports, analytics, and other types of information and data that the Service may generate, provide or make available to Customer, and is included in “Customer Data”.

1.9. “Professional Services” means services provided by Deskfirst to the Customer such as Service, consulting, implementation, training, integration or other professional services regarding the Service, that are provided to Customer pursuant to an Order Form.

1.10. "Service Data” means meta-data and analytics about how the Customer uses the Service, the performance of the Service when use by the Customer, and the Service’s compatibility and interoperability. Service Data explicitly excludes the Customer Data.

1.11. “Subscription Term” means the time period, during which Deskfirst agrees to provide to Customer, and Customer is permitted to use, the Service as specified in an Order Form.

1.12. “Users” means Customer’s employees, agents, contractors and others, who have been authorized or enabled, directly or indirectly, by Customer to use the Service.

2. Usage Rights

2.1. Subject to this Agreement and each applicable Order Form, including, without limitation, Customer’s payment of the subscription fees, Customer may, during the applicable Subscription Term, access and use the Service made available by Deskfirst to Customer within the Customer’s organization and with potential prospects.

2.2. Customer’s right to use the Service is expressly limited to the number Users or other such limitations as indicated by the Order Form.

2.3. Customer covenants that Customer and its Users will use the Service only in compliance with all applicable laws and regulations, this Agreement and any reasonable use policies or instructions issued by Deskfirst in writing.

2.4. Customer shall be permitted to designate the Users of the Service, provided that such usage is in accordance with this Agreement. Customer must ensure that Users fully comply with this Agreement. Customer shall be liable to Deskfirst for all acts or omissions of its Users that use and deal with the Service on its behalf, as though Customer had performed those acts or omissions. Customer shall not authorize access to or permit use of the Service by persons other than its Users or Invitees. Deskfirst may suspend and/or terminate any User’s or Invitees’ access to the Service in the event Deskfirst reasonably believes that such User or Invitee has violated any provision of this Agreement or Deskfirst Terms of Service, which shall apply to such Invitees’ use of the Service..

2.5. During the Subscription Term, Customer may change the usage parameters, capacity limits and other metrics applicable to its use of the Service by mutual written agreement (email being sufficient) with Deskfirst. Where such changes are agreed, they are incorporated by reference into the Order Form and apply pursuant to the conditions mutually agreed to, including with respect to the new fees agreed to in light of the change.

2.6. The Customer and Deskfirst shall adhere to any other terms and conditions agreed to under the Order Form.

2.7. Customer and its Users are responsible for maintaining the confidentiality of their Service login credentials.

2.8. Customer agrees that artificial intelligence and machine learning are rapidly advancing fields. Due to the probabilistic nature of machine learning, there may be instances where the Output Data generated by Deskfirst Services does not accurately represent real people, places, or facts. Customers acknowledge and agree as follows:

2.8.1.  The Output Data may be inaccurate or incomplete, and the Output Data is not the sole source of truth or factual information.

2.8.2.  The Service is not a substitute for professional advice.

2.8.3.  It is Customer’s responsibility to assess the accuracy and suitability of the Output Data for Customer’s specific use case, including conducting human review when necessary. Customer's use of the Output Data is solely at its own risk.

2.8.4.  Customer must not use any Output Data about a person for decisions that could have legal or material consequences for such person, such as those related to credit, education, employment, housing, insurance, legal matters, or medical issues.  Customer may not use the Output data to categorize individuals based on their biometric data to deduce or infer sensitive attributes such as their race, political opinions, religious beliefs, or sexual orientation

2.8.5.  Deskfirst Service may generate incomplete, incorrect, or offensive Output Data that does not reflect Deskfirst views. References to third-party products or services within the Service do not imply endorsement of or affiliation with Deskfirst.

2.8.6.  Due to the nature of machine learning technology with AI-generated answers based on the Customer Data, the Output Data from the Service may not be unique. Other users of the Service may receive Output Data that is similar or identical to the Output Data received by Customer.

3. Service Restrictions

3.1. Customer and its Users shall not:

3.1.1.  distribute, rent, lease, sublicense, transfer or assign the Service or any part thereof to any third party, other than allowing Invitees to enter a shared workspace.

3.1.2.  allow any third parties to use the Service, other than allowing Invitees to enter a shared workspace .

3.1.3.  remove, or in any manner alter, any product identification, proprietary, trademark, copyright or other notices contained in the Service.

3.1.4.  knowingly interfere with, burden or disrupt the Service’s functionality.

3.1.5.  work around any technical limitations of the Service or use any tool to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Service.

3.1.6.  breach the security of the Service, identify, probe, or scan any security vulnerabilities in the Service other than such activities performed in mutual agreement with Deskfirst.

3.1.7.  knowingly transmit any virus, worm, Trojan horse or other malicious or harmful code or attachment.

3.1.8.  use robots, crawlers and similar applications to scrape, harvest, collect or compile content from or through the Service.

3.1.9.  Decompile, disassemble, reverse engineer, or otherwise attempt to identify the source code trade secrets, or know-how in or underlying the Service or Deskfirst Technology; or

3.1.10.  Access and use the Service in order to develop, or create, or permit others to develop or create, a product or service competing with the Service.

3.2. Deskfirst has no obligation to monitor that Customer’s use of the Service complies with this Agreement but may elect to do so. Deskfirst may suspend the provision of the Service to the Customer upon notice and good-faith discussion with the Customer, if Deskfirst reasonably believes that the Customer is in violation of the foregoing in a manner detrimental to Deskfirst or to the proper operation of the Service.

3.3. CUSTOMER MAY NOT USE THE SERVICE FOR ANY ACTIVITY THAT CONSTITUTES, OR ENCOURAGES CONDUCT THAT WOULD CONSTITUTE, A CRIMINAL OFFENSE, GIVE RISE TO CIVIL LIABILITY OR OTHERWISE VIOLATE ANY APPLICABLE LAW.

4. Subscription Plans, Fees

4.1. The Service is offered via paid subscription plans (each a “Subscription Plan” or “Subscription”). Subscription Plans can be purchased online directly from the Deskfirst Service through an online Order Form (as it may be presented by a Third-Party Payment Processor, as defined below) or via a separately negotiated and mutually agreed order form, offered by Deskfirst at its sole. Each Order Form will include the name of the Subscription Plan, number of licenses ordered, and the term of the Subscription (the “Subscription Term”).

4.2. The minimum number of licenses in an Order Form is one, which will be assigned to the Customer.

4.3. Customer agrees to pay Deskfirst all applicable fees and taxes for the Subscription in accordance with the Order Form (the “Subscription Fees”). Subscription Fees are stated in US dollars, unless stated otherwise. Deskfirst may change the Subscription Fees at any time. Any changes made to the Subscription Fees, will apply to your next Subscription Term upon renewal of your subscription, and we will notify the Customer about such changes prior to your Subscription renewal.

4.4. Unless stated differently in the Order Form, Deskfirst will automatically charge the subscription fees to the Customer selected payment method at the beginning of each subscription term. Customer shall add to all fees due herein any Taxes.

4.5. Failure to pay Subscription Fees may result in the suspension or cancelation of the Subscription Plan. Deskfirst may, at its sole discretion, attempt to collect unpaid Subscription Fees at a later time, either directly or through a third-party collection agency, to the extent permitted by applicable law.

4.6. Customer agrees to pay the Subscription Fees through the payment method selected from one of the payment methods offered for the use of the Subscription Plan. By providing Deskfirst with payment information for a payment method and by signing up for a Subscription Plan, Customer confirms that its payment method will be charged for the applicable Subscription Fees, either directly by us or through our Third-Party Payment Processor (as described below) or our affiliates. Customer is responsible for any commission or surcharges introduced by Customer’s selected payment method. Customer may update its payment method through its billing portal in its Deskfirst account.

4.7. Deskfirst uses third-party services that are integrated into the Service for the purpose of processing credit, debit card, and other payment transactions, such as Stripe (“Third-Party Payment Processor”). Any payments processed through a Third-Party Payment Processor are subject to the applicable terms and conditions of the Third-Party Payment Processor, which can be found through a link provided in the Order Form of the Subscription Plan. By using the Third-Party Payment Processor, Customer agrees to be bound by the applicable terms and conditions of such Third-Party Payment Processor. All payments and transactions pertaining to the Subscription Plan will be processed by the Third-Party Payment Processor.

4.8. Customer is responsible for all transactions (one-time, recurring, and refunds) processed through the Service by the Third-Party Payment Processor. Deskfirst shall not be liable for any loss or damage resulting from any wrong or invalid transactions processed for you by the Third-Party Payment Processor.

4.9. Sales tax and other taxes may apply to the Subscription Plan. Customer is responsible for all applicable taxes. Where taxes apply, we will charge the tax when required by applicable law.

4.10. Subscription Updates – during a Subscription Term, a User may update its Subscription Plan by either; i) purchasing additional licenses; ii) reducing the number of licenses (but not less than one); iii) changing (but not cancelling) the Subscription Term (for example, from a monthly to a yearly Subscription Term). Upon such Subscription update, the User Subscription Term may restart and the User will be charged the pro-rated applicable amount of Subscription Fees based on the remaining time left in the previous Subscription Term, at our then-current rates (unless indicated otherwise in an Order Form).

4.11. The Subscription Fees are non-cancelable and non-refundable. Deskfirst will not refund or provide credits for any unused period within the Subscription Term. Customer is solely responsible for paying all Subscription Fees for the Subscription Plan that Customer subscribed for.

4.12. If the Customer, acting in good-faith, disputes any portion of a fee that Deskfirst invoiced, the Customer shall remit to Deskfirst full payment of the undisputed portion in accordance with the provisions of this Section ‎4, and provide Deskfirst, on or a before the original due date of the disputed fee, a written and reasoned notification of the disputed portion of the fee (laying down, in reasonably sufficient detail, the grounds for the dispute), to the extent such information is available at that time as soon as reasonable practicable.

4.13. Failure to settle any overdue fee (not disputed in good faith pursuant to the foregoing) within twenty one (21) calendar days of its original due date will constitute a material breach of this Agreement and, without limiting any remedies available to Deskfirst, Deskfirst may, following written notice to the Customer: (i) terminate this Agreement; or (ii) suspend performance of or access to the Service, until payment is made current. Late payments shall bear interest at the rate of six percent (6%) per annum. Customer will reimburse Deskfirst for legal costs and attorney fees Deskfirst incurs in the course of collecting Customer’s overdue fees.

5. Intellectual Property

5.1. All rights, title and interest in the Service and all Deskfirst Technology, including any and all IP Rights related thereto, are the sole property of Deskfirst. All rights in and to the Service or Deskfirst Technology not expressly granted to Customer in this Agreement are hereby reserved by Deskfirst. Customer owns all right, title and interest in and to Customer Data.

5.2. Customer acknowledges and agrees solely in connection with Deskfirst’s provision of the Service, Deskfirst is hereby granted a limited, revocable, nonexclusive, internal, and royalty-free license, solely during the Subscription Term to access, host and maintain Customer Data for the strict limited purposes of delivering the Service to Customer and supporting Customer’s use of the Service as described herein.

5.3. The Service is offered to Customer for use and access only in accordance with the terms of this Agreement and is not sold or licensed in any other way.

5.4. Except for Customer’s limited access to use the Service during the Subscription Term, this Agreement does not grant or assigns to Customer, any other license, right, title, or interest in or to the Service or Deskfirst Technology, or the Intellectual Property rights associated with them. All rights, title and interest, including copyrights, patents, trademarks, trade names, trade secrets and other intellectual property rights, and any goodwill associated therewith, in and to the Service and Service Data (but not the Customer Data), including computer code, graphic design, layout and the user interfaces of the Service, whether or not based on or resulting from Feedback, are and will remain at all times, owned by, or licensed, to Deskfirst.

5.5. Customer may provide Deskfirst with Feedback, including information pertaining to bugs, errors and malfunctions of the Service, performance of the Service, content and accuracy of the Service, the Service’s compatibility and interoperability, and information or content concerning enhancements, changes or additions to the Service that Customer requests, desires or suggests. Customer hereby assigns, without charge, all right, title and interest in and to the Feedback to Deskfirst, including the right to make commercial use thereof, for any purpose Deskfirst deems appropriate.

6. Confidentiality and Data Protection

6.1. ”Confidential Information” shall mean any and all information disclosed by one party (”Disclosing Party”) to the other (”Receiving Party”) regarding past, present, or future marketing and business plans, customer lists, lists of prospective customers, technical, financial or other proprietary or confidential information of the Disclosing Party, formulae, concepts, discoveries, data, designs, ideas, inventions, methods, models, research plans, procedures, designs, formulations, processes, specifications and techniques, prototypes, samples, analyses, computer programs, trade secrets, data, methodologies, techniques, non-published patent applications and any other data or information, as well as improvements and know-how related thereto. Customer Data is Customer’s Confidential Information. If an Invitee does not register to the Service, its details will remain Customer Confidential Information. If the Invitee chose to register to the Service, it will separately be Deskfirst Confidential Information

6.2. Each party will, and will cause each of its personnel and agents to: (a) not disclose the other party’s Confidential Information to any third party, (b) not use the other party’s Confidential Information for any purpose other than to perform its obligations or exercise its rights under this Agreement, and (c) protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. Notwithstanding this Section, each party shall be able to disclose Confidential Information of the other party to its personnel and agents (including, without limitation, Users) who have a need to know for the Receiving Party to perform its obligations or exercise its rights under this Agreement, provided such personnel or agents have been previously advised of the confidential nature of the information and have written obligations of confidentiality to the Receiving Party.

6.3. The obligations set forth in this section shall not apply to information that: (i) is now or subsequently becomes generally available in the public domain through no fault or breach on Receiving Party's part; (ii) Receiving Party can demonstrate in its prior established records to have had rightfully in Receiving Party's possession prior to disclosure of the same by the Disclosing Party; (iii) Receiving Party can demonstrate by written records that it had rightfully obtained the same from a third party who has the right to transfer or disclose it, without default or breach of confidentiality obligations; (iv) Disclosing Party has provided its prior written approval for disclosure; or (v) Receiving Party are required to disclose pursuant to a binding order or request by court or other governmental authority, or a binding provision of applicable law, provided that, to the extent permissible, Receiving Party provide the Disclosing Party notice of the requested disclosure as soon as practicable, to allow the Disclosing Party, if it so chooses, to seek an appropriate protective or preventive order.

6.4. Data Protection. Under the scope of this Agreement, the Service provided by Deskfirst involve processing of individuals’ personal data, which shall be governed by applicable data protection laws and the Data Processing Addendum, available at: https://www.deskfirst.com/legal/data-processing-addendum.

7. Professional Services

7.1. To the extent mutually agreed upon in the applicable Order Form, during the Subscription Term, Deskfirst, either directly or with the assistance of third parties, may provide Customer with Professional Services.

8. Term and Termination

8.1. Unless otherwise specified in the applicable Order Form, this Agreement commences upon the Effective Date and will continue for a period of twelve (12) months thereafter. The Agreement automatically renews at the end of each Subscription Term, unless each party notifies the other party on the Agreement termination before the Subscription renews. The Subscription shall be renewed for a Subscription Term equal in length and price to the original Subscription Term, unless Deskfirst provides the Customer with a prior written notice of any changes Deskfirst makes to the Subscription, subject to applicable tax changes and excluding any discount or other promotional offers Deskfirst may offer.

8.2. Termination for Cause. Either party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party, provided such breach remains uncured following thirty (30) days following receipt of the notice thereof, but if a breach is of a nature that cannot be cured, then the non-breaching party may terminate the Agreement immediately upon notice to the other party; or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, which proceedings are not dismissed within sixty (60) days of their commencement or assignment for the benefit of creditors

8.3. Effect of Termination. Upon the effective date of termination or expiration of this Agreement: (i) Deskfirst will immediately cease providing the Service to Customer; and (ii) any and all undisputed payment obligations of Customer for Service provided through the date of termination will immediately become due. Within thirty (30) calendar days of termination or expiration of this Agreement, or at the Disclosing Party’s request, each Party will return or securely destroy all Confidential Information of the other Party (as the other Party may elect) in its possession or control (including all copies thereof, in any media). In addition, each Party shall purge its computer systems and database of the other Party’s Confidential Information. Notwithstanding the foregoing return and destroy obligations, a Party (a) may retain copies of the other Party’s Confidential Information in order to comply with any applicable legal or accounting record keeping requirements; and (b) shall not be required to return or destroy any electronic backups of the other Party’s Confidential Information made in the normal course of business, provided the such Party continues to comply with all of the confidentiality and security obligations in this Agreement with respect to such information.

8.4. Subscription Plan Cancellation – Customer may cancel its Subscription Plan at any time. Upon cancelation of a Subscription Plan, the Subscription Auto-Renewal will be cancelled, and Customer Subscription Plan will remain available to it until the end of the then-current Subscription Term.

8.5. Termination of Subscription Plan - Upon termination of the Subscription Plan, Customer access and permissions to all workspaces will be restricted and then permanently deleted. Deskfirst may give Customer, at our sole discretion, restricted access to the workspaces, for a period of time (usually up to 30 days) after the termination time (the “Grace Period”).  During the Grace Period, Customer will have limited access to the workspaces of its account, as long as Customer did not breach the Agreement. Following the Grace Period, all Customer Data will be permanently deleted.

8.6. Deskfirst shall not have any liability either to the Customer, nor to any User or Invitee, in connection to the Termination of Subscription Plan. Unless expressly indicated herein otherwise, the termination shall not relieve Customer from its obligation to pay due Subscription Fees.

8.7. Surviving Provisions. Sections ‎4-6, ‎8.3, 9-12 of this Agreement will survive termination or expiration of this Agreement.

9. Warranties, Disclaimers & Limitation of Liability

9.1. Mutual Representations and Warranties. Each party represents and warrants that it has full right, power, and authority to agree to this Agreement and to perform its obligations and duties under the Agreement, and that the performance of such obligations and duties does not and will not conflict with or result in a breach of any other agreement of such party or any judgment, order, or decree by which such party is bound. Each party shall use the Service only for lawful purposes and in accordance with this Agreement. Each party will comply with all applicable laws and regulations in its performance and use under this Agreement and, in the event of a failure to comply by a party, the other party will have the right to suspend performance hereunder or terminate this Agreement.

9.2. Customer Representations and Warranties. Customer represents and warrants that: (a) its use of the Service, including any Customer Data provided by Customer for use with the Service or handling by Deskfirst, will: (i) comply with any applicable law or regulation, (ii) not cause a breach of any agreement with or rights of any third party and (iii) not unreasonably interfere with use of services offered by Deskfirst to third parties; and (b) it shall use the Service strictly in accordance with this Agreement and other written instructions (e.g., product documentation, release notes, mutually agreed to SOWs, etc.) provided by Deskfirst. In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Deskfirst will have the right to suspend any of the Service to prevent harm to Deskfirst or its business. If practicable, Deskfirst will provide notice and opportunity to cure. Once cured, at Deskfirst’s reasonable discretion, Deskfirst will use reasonable efforts to promptly restore the Service.

9.3. Deskfirst Representations and Warranties. Deskfirst represents and warrants that: its provision of the Service, excluding any Customer Data provided by Customer, will: (i) comply with any applicable law or regulation, (ii) not cause a breach of any agreement with or rights of any third party and (iii) the Service operate properly and securely during the Term, in accordance with industry leading solution, such as SOC 2 Type 2 and the SLA attached hereto as Exhibit A and Deskfirst Trust Center - https://trust.deskfirst.com. However, as a service that relies on software, infrastructure, servers, third-party networks and continuous internet connectivity outside the control of Deskfirst, Deskfirst cannot guarantee that the Service will operate in an uninterrupted or error-free manner, or that it will always be available, free from errors, omissions or malfunctions. If Deskfirst becomes aware of any failure or malfunction, it shall attempt to regain the Service’s availability as soon as practicable. In addition, the Customer acknowledges that the Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Deskfirst or by third-party providers, or because of other causes beyond Deskfirst’s reasonable control. Deskfirst shall provide an advanced notice by e-mail of any scheduled Service disruption.

9.4. Deskfirst warrants that during the Subscription Term, the Service will substantially conform to the features, abilities and functions specified in the Service’s documentation provided to the Customer by Deskfirst. Customer’s remedy for the breach of this warranty is that Deskfirst, once notified of the breach by the Customer, will use reasonable endeavors to repair or replace the impacted Service, so that it substantially conforms to the features, abilities and functions specified in the Service’s documentation provided to the Customer by Deskfirst. The foregoing warranty does not apply to the extent that any error or interruption in the Service results from: incorrect operation or use of the Service by the Customer or its Users including any failure to follow the policies or instructions issued by Deskfirst; use of any of the Service other than for the purposes for which it is intended; use of any Service with other software or services or on equipment with which it is incompatible per Deskfirst-provided documentation; any act by any third party (excluding service or technology providers of Deskfirst unless they experience general issues of reduced performance or availability across their customer-base), such as unavailability of services, hacking or the introduction of any virus or malicious code, which could not have been prevented by Deskfirst using reasonable and customary safeguards and precautions; modification of Service (other than that undertaken by Deskfirst or at its direction); or any breach of this Agreement by the Customer or its Users.

9.5. Deskfirst shall have no liability for data or data input, output, accuracy, and suitability, which shall be deemed under Customer's exclusive control.

9.6. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT IN THE EVENT OF A PARTY’S INTENTIONAL MISCONDUCT, GROSS NEGLIGENCE, BREACH OF INTELLECTUAL PROPERTY RIGHTS, DATA DECURITY BREACH OR CONFIDENTIALITY BREACH, EACH PARTY, INCLUDING ITS EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON ITS BEHALF, WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, STATUTORY OR PUNITIVE DAMAGES, LOSSES (INCLUDING LOSS OF PROFIT, LOSS OF BUSINESS OR BUSINESS OPPORTUNITIES AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT, CONTRACT, OR IN ANY OTHER FORM OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), ARISING FROM, OR IN CONNECTION, WITH THE AGREEMENT, ANY USE OF, OR THE INABILITY TO USE THE SERVICE, OR THE OUTPUT DATA, ANY RELIANCE UPON THE OUTPUT DATA, OR ANY ERROR, INCOMPLETENESS, INCORRECTNESS OR INACCURACY OF THE SERVICE, OR THE OUTPUT DATA. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT IN THE EVENT OF A PARTY’S INTENTIONAL MISCONDUCT, GROSS NEGLIGENCE, A BREACH OF INTELLECTUAL PROPERTY RIGHTS, DATA SECURITY BREACH OR CONFIDENTIALITY BREACH,  THE TOTAL AND AGGREGATE LIABILITY OF DESKFIRST AND ITS EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON ITS BEHALF, FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICE,  OR THE OUTPUT DATA, SHALL BE LIMITED TO THE FEES ACTUALLY PAID IN THE TWELVE MONTHS PRECEDING. IN THE EVENT OF A DESKFIRST’S BREACH OF INTELLECTUAL PROPERTY RIGHTS, DATA SECURITY BREACH OR CONFIDENTIALITY BREACH, THE TOTAL AND AGGREGATE LIABILITY OF DESKFIRST FOR ALL DAMAGES ARISING OUT OF OR RELATED TO IT’S BREACH OF INTELLECTUAL PROPERTY RIGHTS, DATA SECURITY BREACH OR CONFIDENTIALITY BREACH, SHALL BE LIMITED UP TO THE ACTUAL PAID DESKFIRST’S INSURANCE COVERAGE.

10. Indemnification

10.1. Indemnification. Each party shall defend, indemnify and hold harmless the other party and its directors, officers, employees, and subcontractors (collectively “Party’s Indemnitee”), upon the other Party’s request, from, and against, any damages, liabilities, loss, costs, expenses and payments, including, but not limited to, reasonable attorney’s fees and legal expenses, arising out of any third party claim, suit, action, arbitration or proceeding brought against the Party’s Indemnitee, relating to: (a) a breach of any of its representations, warranties, covenants or obligations hereunder; (b) infringement or misappropriation of any Intellectual Property rights; (c) any gross negligence or willful misconduct.

10.2. The indemnified party shall promptly notify the indemnifying party in writing of any claim for which it seeks indemnification hereunder, provided that the failure to provide such notice shall not relieve the indemnifying party of its indemnification obligations hereunder except to the extent of any material prejudice directly resulting from such failure. The indemnifying party shall bear full responsibility for, and shall have the right to solely control, the defense (including any settlements) of any such claim; provided, however, that (a) the indemnifying party shall keep the indemnified party informed of, and consult with the indemnified party in connection with the progress of such litigation or settlement and (b) the indemnifying party shall not have any right, without the indemnified party’s written consent (which consent shall not be unreasonably withheld), to settle any such claim in a manner that does not unconditionally release the indemnified party. At the indemnifying party’s request, the indemnified party will provide reasonable cooperation with respect to any defense or settlement.

11. Governing Law; Dispute Resolution & Venue

11.1. This Agreement and Customer’s use of the Service will be exclusively governed by and construed in accordance with the laws of the State of Israel, without giving effect to conflicts of law principles thereof.

11.2. The Parties will use reasonable efforts to resolve any dispute arising out of this Agreement through discussion between the appropriate personnel from each Party. If Parties are unable to resolve the dispute, either Party may escalate the dispute to its executives. If an executive level meeting fails to resolve the dispute within thirty (30) days after escalation, either Party may seek any available legal relief. This provision will not affect either Party’s right to seek injunctive or other provisional relief at any time.

11.3. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, which the Parties cannot amicably resolve pursuant to the foregoing, shall be exclusively referred to the courts located in Tel Aviv, Israel.

12. Miscellaneous

12.1. Assignment. To the greatest extent permissible by law, either Party may assign this Agreement, including all rights, duties, liabilities, performances and obligations herein, upon notice to the other Party, to a third-party, upon a merger, acquisition, change of control or the sale of all or substantially all of its equity or assets.

12.2. Relationship of the Parties. The relationship between the Parties hereto is strictly that of independent contractors, and neither Party is an agent, partner, joint ventures or employee of the other.

12.3. Complete Terms and Severability. This Agreement constitutes the entire and complete agreement between the Parties concerning the subject matter herein and supersede all prior oral or written statements, understandings, negotiations and representations with respect to the subject matter herein. If any provision of this Agreement is held invalid or unenforceable, that provision shall be construed in a manner consistent with the applicable law to reflect, as nearly as possible, the original intentions of the Parties, and the remaining provisions will remain in full force and effect. This Agreement may be modified or amended only in writing, signed by the duly authorized representatives of both Parties.

12.4. No Waiver. Neither Party will, by mere lapse of time, without giving express notice thereof, be deemed to have waived any breach, by the other Party, of any terms or provisions of this Agreement. The waiver, by either Party, of any such breach, will not be construed as a waiver of subsequent breaches or as a continuing waiver of such breach.

12.5. Open Source. The Service includes certain open source code software and materials (as shall be listed in the documentation and updated from time to time that are subject to their respective open source licenses and not to this Agreement. Such open source licenses contain lists of conditions with respect to warranty, copyright policy and other provisions. If, and to the extent, any of the foregoing open source code licenses require that the source code of their corresponding open source code software and materials be made available to you, and such source code was not delivered to you, then Deskfirst hereby extends a written offer, valid for the period prescribed in such respective open source code licenses, to obtain a copy of the source code of the corresponding open source code software, from us. To take up this offer, contact us at [email protected].

Exhibit A – Service Level Agreement

Deskfirst will endeavor, using commercially reasonable efforts, to quickly respond to Service support requests and reported Service errors, technical problems, payment disputes, operational questions, or defects, bugs or malfunctions (each, an “Inquiry”), and provide a solution to Customer Inquiry, as set forth in this SLA.

Deskfirst’s handling and resolution of Inquiries is subject to the following procedure and scheme:

1. Inquiries shall be submitted to Deskfirst’s helpdesk by e-mail [email protected] or through Deskfirst’s Help Center at https://help.deskfirst.com.
2. When Deskfirst receives notice of an Inquiry from you, along with all pertinent information at Customer’s disposal, regarding the Inquiry, Deskfirst will record the time of when the notification was received during Deskfirst business hours (the “Opening Time”) starting 10:00 am Monday - Friday. If an inquiry is received by Deskfirst outside its business hours, the Opening Time will be recorded as 9:00 am on Deskfirst’s next business day.
3. Upon receiving an Inquiry, Deskfirst, using its reasonable judgment, will classify the Inquiry’s severity level as Critical, High, Medium or Low, in accordance with the following guidelines:
   
   1. Critical – Complete failure of the Product where you indicate that your operational systems are disrupted as a result
   2. High – Faults in most of the primary functionalities of the Service;
   3. Medium – Features of the Service are partially malfunctioning;
   4. Low – Minor error or malfunction in the Service.
4. Within twenty-four (24) hours of the Opening Time, Deskfirst will respond with its written acknowledgement to you that the Inquiry was received, will indicate Deskfirst’s classification of the Inquiry’s severity level and confirm that Deskfirst began its work on Resolving the Inquiry.
5. “Resolution”, “Resolve” and “Resolving” is Deskfirst’s provision of a resolution for the Inquiry, and “Work Around” is Deskfirst’s provision of a productive workaround for the inquiry.
6. This SLA is contingent upon Customer’s provision of broadband remote access to Customer premise through the Deskfirst 's designated support center. Any delays caused by Customer’s failure to provide the necessary access or information, or by any third party acting on Customer’s behalf, will not be counted towards the resolution or work around timeframe. Additionally, once a Workaround is implemented, restoring service functionality, the severity level of the case will be adjusted accordingly
7. This SLA covers only support-related services. Professional Services are not included and will be billed separately.

Deskfirst will endeavor, using commercially reasonable efforts, to resolve Inquiries as set forth below. Times are clocked in relation to the Opening Time, as recorded in Deskfirst logs.

Critical:

Work around time after Opening Time: 48 hours

Resolution Time after Opening Time: 14 Days

High:

Work around time after Opening Time: 72 hours

Resolution Time after Opening Time: 30 Days

Medium:

Work around time after Opening Time: 72 hours

Resolution Time after Opening Time: 30 Days

Low:

Work around time after Opening Time: N/A

Resolution Time after Opening Time: In the next scheduled version release of the Product.