This Subscription Agreement (together with any Exhibits attached hereto, this “Agreement”) is made by and between Opster Ltd. a company incorporated under the laws of the State of Israel, having offices at Ben-Avigdor 10, Tel-Aviv IL 6721834(“Opster”); and Customer as identified in the Order Form to which this Agreement is attached.
Whereas, Opster has developed, and owns or obtained the required license to all rights and title to its proprietary software solution (“Solution”), which is aimed at identifying and predicting root causes of Elasticsearch problems, suggesting improvements and solutions of the findings thereof (“Suggestions”) and Opster offers technical assistance in implementing Suggestions-based remediations (“Production Support Services”) and additional services (the Solution, Suggestions, Production Support Services assistance, and any other services made available to Customer hereunder, together with any related documentation, respectively the “Services”), as further set forth in the applicable order form to which this Agreement is attached (the “Order Form”), and
Whereas, Customer desires to receive from Opster the rights to use the Services, exclusively upon the terms and subject to the conditions as set forth in this Agreement and the applicable Order Form.
Now Therefore, the Parties intending to be legally bound, hereby agree as follows:
“Affiliate” means any entity which controls, is controlled by or is under common control with either of the parties, whether by ownership or management. Any entity shall be deemed to “control” another entity if it owns directly or indirectly more than 50% of the outstanding voting securities or capital of other entity or other comparable equity with respect to an entity other than a company.
“Documentation” means the instructions, user guides, manuals and release notes provided by Opster, at any time, in printed and/or electronic form, that describe the installation, operation, use or technical specifications of the Solution.
“Solution” means the Solution (as defined above) and all Updates and Upgrades thereto (to the extent made available to Customer hereunder), for which Customer has purchased a subscription as set forth in the Order Form(s).
“Solution Agent” means a component of the Solution which is installed on Customer’s systems and networks in order to allow the Solution to analyze and process Customer Data in the scope of the Services.
“Updates” means any unspecified updates, service patches, or releases made to the Solution from time to time which may enhance or improve existing features, or functions, modules, and technology which are generally made available by Opster to its Customers at no additional costs. These Updates may contain, among other things, error corrections, bug-fixes, enhancements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Solution.
“Upgrades” any new version of the Solution, service patches, or releases thereof which involve the addition of new features and/or new capabilities beyond the existing scope of the features and/or capabilities of the Solution.
“User” means Customer’s individual employees, agents, contractors, consultants, suppliers or other individuals who are authorized under the applicable Order Form to use the Services pursuant to the terms and conditions of this Agreement.
2. RIGHTS TO USE; RESTRICTIONS ON USE
2.1 The type and scope of the subscription for the use of the Services (“Subscription”) are determined in the Order Form and shall include the contemplated period of the Subscription (the “Subscription Period”). If Customer wishes to extend the Subscription Period or increase its scope, purchase of additional Subscription Periods and capacity is required.
2.2 Subject to payment of the Subscription fees pursuant to the applicable Order Form, the activation, installation and use of the Services shall be enabled, locally or remotely, on the Customer’s networks, on prem or via cloud implementation, as set forth in the Order Form.
2.3 Subject to payment of Subscription fees pursuant to the applicable Order Form, Opster hereby grants Customer a limited, revocable, nonexclusive, non-transferable and non-assignable right during the Subscription Period, to use the Services as made available by Opster in accordance with Subscription capacity set forth in the applicable Order Form, for the purpose of managing its own use of Elasticsearch software, solely on Customer’s internal network and/or premises (including as applicable on Customer’s cloud and hosting accounts) and solely for the duration of the Subscription Period, all in accordance with the terms and conditions set forth hereof and in the Order Form.
2.4 Opster may make Documentation available to Customer for Customer’s internal use of the Services during the Subscription Period. Customer may print or copy the Documentation as needed for such own internal use provided that all copyright notices are included therein and no changes or derivatives are made thereto. The Documentation shall be considered as Opster’s Confidential Information (as further defined). Unless the Documentation is separately referred to herein, all references in this Agreement to the Solution and/or Services shall include the Documentation.
2.5 Additional Rights and Restrictions.
This Agreement only gives Customer limited rights to use the Services as explicitly set forth hereunder and Opster reserves all other rights. The Customer may use the Services only as expressly permitted herein except if otherwise required under applicable law.
The Customer agrees that it will not, and will not permit others to: (i) use the Services for any purpose or at any location, network, or deployment, other than on Customer’s internal network and as expressly permitted hereunder and under the applicable Order Form; (ii) use the Services or output of the Services for provision of services which are competitive with the Services, offer for sale, lease, license or otherwise, commercialize, transfer, distribute or otherwise dispose of the Services; (iii) except as expressly permitted hereunder, modify, translate, emulate, convert to another programming language, reverse engineer, decompile, debug, reproduce in any form or disassemble, make derivatives works of all or any part of the Services, or derive source code, techniques, algorithms or processes from the Services, nor attempt to do any of the foregoing; and (iv) use the Services, or the results of its assessment of the Services for its own competing development activities or otherwise disclose such results and conclusions to any third parties; (v) test the Services or use the Services in connection with any benchmark tests or any other tests or comparisons of which the results are to be published in any form or media; (vi) disclose or attempt to disclose the Services or its sources to any third party by any means of dissemination; (vii) represent that Customer possess any proprietary interest in the Services; (viii) directly or indirectly, take any action to contest Opster’s intellectual property rights in or in connection to the Services or related services or infringe them in any way;
2.6 Marks and Use of Opster’s Name. This Agreement does not grant Customer any rights to Opster’s trademarks or service marks. The Customer will not remove or modify any Services markings or any notice of Opster’s proprietary rights.
2.7 Software Minimum Requirements. Customer acknowledges and agrees that the proper use of the Services may require one or more compatible hardware, internet access, and certain software as further described in the applicable Order Form and/or Documentation provided by Opster.
2.8 Transfer to a Third Party. The rights granted to Customer in this Agreement may not be assigned or transferred by Customer to a third party, without Opster’s prior written consent. Opster may assign or transfer (i) its rights to receive money under this Agreement and any applicable Order Form to any third party without limitation subject only to prompt written notice to Customer, and (ii) any and all other rights and obligations and undertakings hereunder to any Opster Affiliate or in connection with a sale or transfer of all or substantially all of Opster’s assets, stock or business by sale, merger, consolidation, or similar transaction. Any purported assignment or transfer in violation of this section shall be void.
3.1 Customer shall pay the amount of Subscription and Services fees due to Opster as set forth in the Order Form added with any applicable VAT or sales taxes as the case may be. For the avoidance of doubt, unless mentioned directly in the order form all Fees and are exclusive of VAT, Sales tax or similar charges which will be added to the invoice and paid by the Customer. Payment shall be due in accordance with the payment schedule set forth in the Order Form. Unless otherwise set forth in the applicable Order Form payments shall be made in United States Dollars by wire transfer to an Opster designated bank account (as notified to the Customer in writing). All fees, Order Forms and Subscriptions, shall be non-cancellable and the sums paid non-refundable except in the case of termination of this Agreement by Customer for breach by Opster (pursuant to the terms of this Agreement) in which case Customer shall be entitled to a refund of prepaid fees for Services not rendered due to such termination on a prorated basis from the termination date.
3.2 Unless otherwise specifically stated in the Order Form, any discounts provided will apply only to the specific term they were granted. Customer is responsible for payment of any taxes and/or duties resulting from the payment to Opster hereunder. If any taxes are required to be withheld at source and remitted to the authorized tax authority, Customer shall pay an amount to Opster such that the net amount payable to Opster after withholding of taxes shall equal the amount that would have been payable under this Agreement if such withholding was not applied.
4. SUPPORT AND MAINTENANCE; PROFESSIONAL SERVICES.
4.1 Unless otherwise indicated in the applicable Order Form subject to payment of applicable service fees, Opster shall provide standard support and maintenance services (“Support Services“) in accordance with the Service Level Agreement attached hereto as Exhibit A (the “SLA”). Opster shall also provide the Production Support Services,Professional Consulting Services and/or Onboarding Services (as such terms are defined in the SLA or in the applicable Order Form), where such services are purchased under the applicable Order Form (the “Professional Consulting Services” and the “Onboarding Services” are hereby collectively referred to as “Professional Services”). If Customer desires to receive enhanced support services that exceed the Support Services, such enhanced support services shall be governed by a separate Enhanced Support Services Agreement to be agreed upon in writing between the parties hereto. The Services, Support Services and/or Professional Services may require Customer to grant Opster remote or local access to Customer’s network and systems in order to allow Opster to provide such Services, Support Services and/or Professional Services, subject to the Customer’s security policies. Granting access to Opster to Customer’s network and/or systems for the purpose of receiving the Services, Support Services and Professional Services is in Customer’s control and sole discretion; Customer acknowledges that Opster shall not be liable for failure to provide Services, Support Services and Professional Services if Customer chooses not to grant Opster such access.
4.2 Unless otherwise expressly indicated in the Order Form, the Support Services and/or Enhanced Support Services do not include any Professional Services or otherwise any services that are not expressly set forth in the SLA. Any purchase by Customer of Professional Services, must be expressly and separately ordered under a mutually agreed upon Order Form which may also include a statement of work (where required).
5 WARRANTY; DISCLAIMERS
5.1 Limited Product Warranty. Opster warrants, for Customer’s benefit alone, that the Services as provided by Opster, if operated as directed and in accordance with the Documentation and herewith, shall be free from material defects in design and construction, and shall operate substantially in accordance with the express functional specifications in the Documentation (the “Specifications”). The aforementioned notwithstanding, Opster shall have no liability under this agreement, and no warranty shall apply with respect to events, malfunctions and damages arising from Customer’s third party vendors’ activity or services or otherwise from any use and/or implementation of the suggestions either by customer or by anyone acting on its behalf (including any manual or automatic action by opster when authorized by Customer to do so including by a prompt and consent user flow).
5.2 Opster warrants that it has the requisite authority to execute, deliver, and perform its obligations under this Agreement and that doing so will not violate any pre existing contracts or agreements. Opster undertakes that the use of the Services will not result in significant service interruptions or degradation of Customer’s systems.
5.3 Disclaimers. IT IS AGREED AND ACKNOWLEDGED THAT (I) THE SERVICES INCLUDE A COMPLEX COMPUTER SOFTWARE THE PERFORMANCE OF WILL VARY INTER-ALIA DEPENDING ON THE CUSTOMER’S HARDWARE PLATFORM, SOFTWARE INTERACTIONS, NETWORK, THE CONFIGURATION OF THE SOLUTION AND OTHER FACTORS WHICH ARE NOT CONTROLLED BY OPSTER AND THAT EXCEPT FOR THE EXPRESS WARRANTIES STATED ABOVE, THE SERVICES ARE NEITHER FAULT TOLERANT NOR FREE FROM ERRORS, CONFLICTS OR INTERRUPTIONS AND OPSTER DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE SERVICES WILL OPERATE ERROR-FREE, THAT CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED, THAT IT WILL BE COMPATIBLE WITH ALL OF CUSTOMER’S EQUIPMENT OR SOFTWARE CONFIGURATIONS OR THAT OPSTER WILL CORRECT ALL ERRORS IN THE SERVICES; AND (II) THE SERVICES THE SERVICES AND ANY RESULTING ACTIONS TAKEN BY OPSTER ARE PROVIDED SOLELY AS A DECISION-SUPPORT TOOL, WHICH MUST BE VALIDATED BY CUSTOMER PRIOR TO IMPLEMENTATION OF ANY SUGGESTIONS OR OTHER RESULTS OF THE SERVICES AND THAT EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED ABOVE, USE AND/OR IMPLEMENTATION OF THE SUGGESTIONS EITHER BY CUSTOMER OR BY ANYONE ACTING ON ITS BEHALF (INCLUDING ANY MANUAL OR AUTOMATIC ACTION BY OPSTER WHEN AUTHORIZED BY CUSTOMER TO DO SO INCLUDING BY A PROMPT AND CONSENT USER FLOW) OR OTHERWISE CUSTOMER’S CONSUMPTION OF THE SERVICES IS PERFORMED AT CUSTOMER’S RISK.
EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 5.1 ABOVE THE SERVICES AND THE DOCUMENTATION ARE PROVIDED “AS IS”, AND OPSTER EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY CONCERNING USE, PERFORMANCE, ACCURACY, FITNESS FOR PURPOSE, OR RESULTS OF THE SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, OPSTER SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR PROBLEMS OR DAMAGES CAUSED BY MODIFICATIONS OR CUSTOMIZATIONS TO THE SERVICES MADE WITHOUT OPSTER’S WRITTEN APPROVAL.
5.4 Exclusive Remedies. For any partial of complete unavailability of the Services in breach of the warranties contained in Section 5.1, Customer’s exclusive remedy, and Opster’s entire and sole liability under this Agreement, shall be to comply and perform in accordance with the Support Services; provided that (i) Customer has fully paid all applicable fees, (ii) Customer is not otherwise in breach of this Agreement, and (iii) Customer has reported in writing to Opster the claimed failure as soon as reasonably possible from discovery. Opster will have no obligation or liability under this Section 5 if the Services have been: (i) altered, modified, or serviced other than by Opster; (ii) improperly installed or used in a manner other than as specified in the Documentation; or (iii) if Customer violated the Subscription restrictions set forth under section 2.5 hereto.
6 Intellectual Property; Confidential Information
6.1 Intellectual Property. No rights other than the license rights expressly granted hereunder, shall pass to the Customer and nothing in this Agreement constitutes a waiver of Opster’s intellectual property rights under any law. Customer acknowledges and agrees that as between Customer and Opster, the Services and the Documentation, including any corrections, modifications, enhancements, derivatives works, Updated, and/or Upgrades thereto, are and shall at all times remain Opster’s exclusive property protected under copyright laws, patent law, and/or other laws and international treaties protecting intellectual property rights and trade secrets. Customer will not knowingly do anything to impair Opster’s proprietary rights in the Services or seek to acquire or register any rights in Opster’s proprietary marks, copyrights or information. In the event Customer provide Opster with suggestions, comments or other feedback relating to the Services (collectively “Feedback”), whether such Feedback is provided or generated (as applicable) prior to, on or after the Effective Date of the applicable Order Form, such Feedback shall become property of Opster and/or its Affiliates.
6.2 All Customer proprietary data processed and/or analysed by the Solution (the “Customer Data”), is and shall at all times remain the property of Customer. Unless specifically authorized in this Agreement or in writing by the Customer, and then only to the extent so authorized, Opster shall not use the Customer Data in any manner whatsoever. Customer Data shall not include any personal and/or identifying information of Customer’s Users.
6.3 Customer hereby authorizes Opster and grants Opster (i) a limited, non-exclusive and royalty-free right, for the Term only, to access Customer network and to access process and use Customer Data on Customer’s behalf, for the sole purpose of providing the Services as contemplated hereunder, and (ii) a limited, non-revocable, perpetual, non-transferable, non-sub-licensable, non-exclusive, royalty-free right to use, any depersonalized anonymous or statistical data, which does not identify Customer or any of its Users, which is derived or deduced by Opster from Customer’s use of the Services pursuant hereto, for Opster’s research, development and internal uses.
6.4 Confidential Information. Prior to or during the Term, the parties hereto may, directly or indirectly, disclose to each other, or have access to, certain Confidential Information (as defined below) of the other party, whether in writing, oral form or in any other manner. For the purposes of this Agreement, “Confidential Information” means any and all information, data and know-how of a private, non-public or confidential nature, in whatever form, that relates to the business, financial condition, technology and/or products of the disclosing party, its Affiliates, customers, suppliers, or potential customers or suppliers, provided or disclosed to the receiving party or which becomes known to the receiving party, or is viewed by the receiving party during a visit to the disclosing party’s facilities, whether or not marked or otherwise designated as “confidential”, “proprietary” or with any other legend indicating its proprietary nature. By way of illustration and not limitation, Confidential Information of Opster includes all forms and types of financial, business, scientific, technical, or engineering information and know-how, including but not limited to in relation to the Solution and/or Services including the terms of any Order Form. Confidential Information of Customer includes but is not limited to all Customer Data. “Confidential Information” shall not include information or any matter that the receiving party can demonstrate by written and dated evidence: (a) was already known to the receiving party from a source other than the disclosing party prior to disclosure; (b) was independently developed by the receiving party without use of, or reference to, the Confidential Information; (c) has become a part of the public knowledge, through no fault of, or breach of this Agreement by the receiving party; (d) was lawfully received by the receiving party from another person or entity having no confidentiality obligation to the disclosing party or its Affiliates; or (e) is explicitly approved in writing by the disclosing party for release by the receiving party. The receiving party shall treat all Confidential Information of the disclosing party as strictly confidential, and except as expressly contemplated hereunder it shall: (a) not, directly or indirectly use or otherwise exploit Confidential Information for any other purpose other than for performing hereunder; (b) refrain, either by itself or through any third party, from analyzing or attempting to analyze the Confidential Information or any part of it, including by way of disassembly, decompiling or reverse engineering any samples, prototypes, software or other tangible objects, in order to determine the composition, design or specifications thereof; (c) not modify, create derivative works based, or emulate the functionality of any samples, prototypes, software or other tangible objects constituting Confidential Information; (d) protect and safeguard the Confidential Information against any unauthorized use, disclosure, transfer or publication with at least the same degree of care as it uses for its own confidential or proprietary information, but in no event using less than a reasonable degree of care; (e) restrict disclosure of the Confidential Information to those directors, officers, employees, agents, consultants, contractors, or representatives of itself or of its Affiliates (“Representatives”) who clearly have a need-to-know such Confidential Information, and for no purpose other than for performing hereunder; (f) advise such Representatives of their obligations to comply with the terms and conditions of this Agreement, and receiving party shall be liable for any acts or omissions of its Representatives as if performed by the receiving Party; and (g) notify the disclosing party immediately upon discovery of any unauthorized use or disclosure of the Confidential Information and take reasonable steps to regain possession of the Confidential Information and prevent further unauthorized actions or other breach of this Agreement. In the event that the receiving party becomes legally compelled to disclose any of the Confidential Information, it will provide the disclosing party with prompt notice thereof so that the disclosing party may seek a protective order or other appropriate remedy against the disclosure, and in any event, will limit the disclosure to the greatest extent reasonably possible under the circumstances. The receiving party acknowledges that a breach of this Section will cause irreparable damage to disclosing party that cannot be calculated or that cannot be adequately compensated for by money damages and, accordingly, the disclosing party shall be entitled to seek injunctive relief under this Agreement, as well as such further relief as may be granted by a court of competent jurisdiction.
7. INTELLECTUAL PROPERTY INFRINGEMENT; INDEMNIFICATION
7.1 Infringement Indemnification. Opster shall defend, indemnify and hold Customer harmless at Opster’s sole cost and expense, for any claim, suit, expenses, damages, or proceeding brought against Customer which alleges that the Services, as delivered and used in accordance with the terms of this Agreement, infringe any third party patent, copyright or other intellectual property right (a “Claim”). Opster will pay the amount of any final judgment or settlement of such Claim awarded against Customer, provided that Customer gives Opster written notice promptly upon becoming aware of such Claim or threat of Claim, including full information and reasonable assistance and allows Opster to assume full control of the defense and settlement of such Claim, provided that Opster shall not enter into any settlement of a Claim which requires Customer to admit any wrongdoing or that otherwise does not relieve Customer of all liabilities directly associated with such Claim without Customer’s written consent, which consent shall not be unreasonably withheld.
7.2 Limitations on Indemnity Obligations. Opster shall have no liability for any claim of infringement based upon: (i) unauthorized modification of the Services by Customer; (ii) use by Customer of a superseded or altered release of the Services or Documentation if such infringement would have been avoided by the use of a current Update or Upgrade that Opster made available to Customer; (iii) the combination, operation or use by Customer of the Services furnished under this Agreement with software or hardware not furnished or approved for such combination, operation or use by Opster if the infringement would not have arisen but for such co-operation.
7.3 Remedies. Without in any way limiting Opster’s obligations to indemnify and defend Customer under Section 7.1,, in the event of a Claim, Opster may, at its option and expense, either: (i) obtain for Customer the right to continue to use the Services; (ii) replace the Services with a product with substantially equivalent functionality; or (iii) modify the Services so that it becomes non-infringing, while maintaining substantially equivalent functionality. If (i), (ii) or (iii) above are not commercially practical, then Opster may elect to give Customer a refund of prepaid fees on a prorated basis from the date the Services became unavailable for Customer’s use and shall be entitled to terminate this Agreement and any relevant Order Form.
8. LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WHATEVER THE LEGAL OR EQUITABLE BASIS FOR THE CLAIM, NEITHER PARTY, NOR ANY OF ITS AFFILIATES OR SUPPLIERS, WILL BE LIABLE FOR ANY INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA OR BUSINESS INFORMATION) ARISING IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, SUPPORT SERVICES, OR PROFESSIONAL SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. EITHER PARTY’S MAXIMUM AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE FEES PAID TO OPSTER IN THE TWELVE (12) MONTHS’ PERIOD PRECEDING THE APPLICABLE CLAIM PURSUANT TO THE RELEVANT ORDER FORMS. THE FOREGOING LIMITATIONS OF THIS SECTION 8 WILL NOT APPLY TO LIABILITY CAUSED BY EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6.4, LIABILTY FOR AN INDEMNIFIED CLAIM UNDER SECTION 7, EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR CUSTOMER’S BREACH OF ANY RESTRICTIONS, OBLIGATIONS AND REPRESENTATIONS UNDER SECTIONS 2.5, 2.6 AND 2.8HEREUNDER.
9. TERM AND TERMINATION. This Agreement shall enter into effect upon the Effective Date of the applicable Order Form, and unless terminated earlier in accordance with the terms hereof or any terms of termination expressly set forth and agreed upon between the Parties in an Order Form, it shall continue until the expiration of all Subscription Periods set forth in the applicable Order Forms executed between the parties hereunder (the “Term”). Either party may terminate this Agreement and any applicable Order Form if the other party breaches its terms and such breach is not cured within thirty (30) days of the terminating Party’s written notice of such breach. Sections 2.9, 6, 7, 8, 9, 10 and 12 will survive any termination or expiration of this Agreement and any Order Form.
10. RETURN OR DESTRUCTION OF SOLUTION AND DOCUMENTATION UPON TERMINATION OF SUBSCRIPTION. Upon termination or expiration of this Agreement and the applicable Order Form, Customer must immediately and in any event within thirty (30) days thereafter cease using the Services and the Solution, permanently delete and remove any and all Solution Agents from its systems and network and promptly return the Documentation and any copies thereof (in all forms, partial and complete, in and on all types of media and computer memory, and whether or not modified or merged into other materials) to Opster or certify in writing that it has been destroyed, save for such copies that Customer is required to retain for archiving purposes to comply with applicable regulatory requirements. and either party shall return to the other party and purge its systems from any Confidential Information of the other Party that it holds or has access to, and certify of the same in writing.
11. GOVERNING LAW. Depending on Customer’s place of incorporation this Agreement, its interpretation, and any claims and disputes related hereto, shall be governed by the following governing laws specified below, and any and all such claims and disputes shall be brought in, and you hereby consent to them being litigated in and decided exclusively by a court of competent jurisdiction located in the respective following locations:
a) If Customer is incorporated in the USA, the governing law shall be the laws of the state of New York and the exclusive jurisdiction shall be the city of New York;
b) If Customer is incorporated in Europe, the governing law shall be the laws of England and Wales and the exclusive jurisdiction shall be the city of London;
c) If Customer is incorporated in Israel or in any other territory not mentioned in a) or b) above, the governing law shall be the laws of the State of Israel and the exclusive jurisdiction shall be the city of Tel Aviv. The United Nations Convention of Contracts for the International Sale of Goods shall not apply to the Agreement. The provisions of this section shall not prevent either party from seeking immediate injunctive relief in any court of competent jurisdiction.
10.1 GENERAL. In the event any provision or part of this Agreement is held to be invalid or unenforceable by any court of competent jurisdiction, it shall be amended to the extent required to render it valid, legal and enforceable, or deleted if no such amendment is feasible, and such amendment or deletion shall not affect the enforceability of the other provisions hereof; No waiver of any breach of this Agreement will be a waiver of any other breach, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches; Opster shall remain responsible and liable as provided under this Agreement to Customer, even if it sub-contracted any obligations under this Agreement; This Agreement, including any referenced Order Forms and exhibits constitutes the entire agreement between the Parties hereto and supersedes all previous agreements or representations, written or oral, with respect to its subject matter. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party; Paragraph headings in this Agreement have been inserted merely for convenience and shall not affect the rights and obligations of the parties hereto or the meaning of the language in this Agreement; This Agreement may be executed in several counterparts, each of which shall together constitute one and the same instrument; The relationship of the Parties shall be governed by this Agreement. Nothing in this Agreement shall be deemed to constitute any party the partner of the other party, nor constitute any party the agent or legal representative of the other party. It is not the intention of the Parties to create, nor shall this Agreement be construed to create any commercial or other partnership. Neither of the Parties shall have any authority to act for or to assume any obligation or responsibility on behalf of the other party. Neither of the parties shall hold itself out as a partner of the other party; In any suit or proceeding between the parties hereto relating to this Agreement, the prevailing party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, and other professionals incurred in connection with the suit or proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment. This provision is intended to be severable from the other provisions of this Agreement and shall survive and not be merged into any such judgment; Any conflicting terms and conditions contained in either party‘s purchase order, in any proposal, quotation, delivery note, invoice, statement or any other such documents between the parties shall not have any effect, unless mutually agreed upon in writing and expressly stating to be preceding any conflicting terms of this Agreement.