Skycure Assessment Tool License Agreement

BY EXERCISING ANY RIGHTS PROVIDED BELOW OR BY OTHERWISE USING OR OTHERWISE ACCESSING THE ASSESSMENT TOOL, THE SKYCURE CLOUD OR THE SKYCURE TECHNOLOGIES (EACH AS DEFINED BELOW), THIS ENTITY, INDIVIDUAL OR ORGANIZATION (“CUSTOMER”) CONSENTS TO BE BOUND THIS SKYCURE ASSESSMENT TOOL LICENSE AGREEMENT (THIS “AGREEMENT”), WHICH SHALL GOVERN THE RELATIONSHIP BETWEEN CUSTOMER AND SKYCURE, INC., A DELAWARE CORPORATION, WITH OFFICES AT 445 SHERMAN AVE., STE.230, PALO ALTO, CA 94306 (“SKYCURE US”) OR, IF CUSTOMER IS LOCATED WITHIN ISRAEL OR IF EXPRESSLY DESIGNATED IN A SKYCURE PROPOSAL, BETWEEN CUSTOMER AND SKYCURE LTD., AN ISRAELI COMPANY OF 30 KALISCHER ST., TEL AVIV, ISRAEL (“SKYCURE LIMITED”). (SKYCURE LIMITED AND SKYCURE US ARE COLLECTIVELY REFERRED TO AS “SKYCURE”). 

  1. Skycure is engaged in development and provision of cybersecurity solutions for mobile devices and has proprietary rights in a certain software assessment tool (the “Assessment Tool“) that shows security gaps in mobile devices and demonstrates an unauthorized penetration to such devices using such security gaps. The Assessment Tool is made available through a Skycure web-cloud offering (the “Skycure Cloud“).
  2. Assessment Tool. Subject to the terms of this Agreement, Skycure grants Customer a personal, nonexclusive, nontransferable and non-assignable license to access and use the Assessment Tool through the Skycure Cloud using access credentials provided by Skycure solely for Customer’s internal evaluation purposes, including during a demonstration authorized by Skycure (a “Demonstration”).
    1. Skycure reserves and shall have all rights, title and interest in the Assessment Tool and the Skycure Cloud and any related systems and technologies (collectively, the “Skycure Technologies”) and any intellectual property rights related to them, including all related unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world and any goodwill associated therewith (collectively, the “Intellectual Property Rights“) in and to the Skycure Technologies and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Skycure Technologies.
    2. Skycure may collect and analyze data and other information related to the use and performance of the Skycure Technologies and Skycure may (i) use such information and data to improve and enhance the Skycure Technologies and for other development, diagnostic and corrective purposes; and (ii) disclose such data and information in accordance with its privacy policy provided such use and disclosure are consistent with the practices disclosed in Skycure’s Privacy Policy located here: http://www.skycure.com/privacy-policy/and the Supplemental Assessment Tool Disclosure located here: http://www.skycure.com/skycure-assessment-tool-privacy-policy/. Customer expressly consents to the practices disclosed therein.
  3. Customer Obligations. During Demonstrations, Customer may need to access and use Skycure Technologies from multiple devices in Customer’s network. Customer represents and warrants that Customer has the authority to use and access these devices to access Skycure Technologies.
    1. Customer (i) acknowledges that the Skycure Technologies may include or may install on devices computer viruses, worms, Trojan horses, cancelbots, or other harmful code (“Illicit Code”) as the very nature of the Assessment Tool is to expose security gaps that allow third parties to install such Ilicit Code on Customer’s mobile devices; (ii) acknowledges that Skycure shall have no liability for the consequences of any Illicit Code or any use of the Skycure Technologies; and (iii) represents and warrants that Customer has the full right and authority to install or use the Skycure Technologies or any Illicit Code on any devices presented or provided by Customer.
    2. Customer shall not, and shall not authorize any third party to: (i) sublicense, use or duplicate the Skycure Technologies, or any portion thereof, except as expressly authorized in this Agreement; (ii) use the Skycure Technologies by, or for the benefit of any third party; (iii) modify, translate, or prepare derivative works based upon the Skycure Technologies; (iv) reverse-compile or decompile, disassemble or otherwise reverse engineer the Skycure Technologies, except to the extent expressly required to be permitted by applicable law; (v) rent, lease, loan, sell, transfer, or distribute the Skycure Technologies, or any copy or portion thereof, to any other person or entity; (vi) alter, remove, or obscure any copyright, trademark, or other proprietary notices or confidentiality legend on or in the Skycure Technologies; (vii) use the Skycure Technologies to store or transmit fraudulent, infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or other rights; (viii) release, publish, and/or otherwise use or make available to any third party the results of any performance or functional evaluation of the Skycure Technologies without the prior written approval of Skycure; and/or (ix) use the Skycure Technologies to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs. Except for the license expressly granted by Skycure to Customer under this Agreement, Skycure reserves all right, title and interests in and to the Skycure Technologies and any derivative works derived therefrom, and all intellectual property rights therein.
    3. Customer shall (i) use commercially reasonable efforts to prevent unauthorized access to or use of Skycure Technologies and notify Skycure promptly of any such unauthorized access or use; (ii) use Skycure Technologies only in accordance with any user guides for the applicable Skycure Technology and applicable laws and government regulations; (iii) use the Skycure Technologies during a Demonstration and solely in accordance with instructions from any Skycure representative, including closing browser tabs or windows or clearing browser history; (iv) obtain the express written or electronic consent of every owner and user of a device with respect to which Customer uses the Assessment Tool; and (v) if a Demonstration requires the use of functionalities that capture or records data, voice or video recordings from a device, site or location, perform the Demonstration in an isolated location or environment and only after obtaining all necessary consents and permissions from all relevant persons regarding their rights associated with the use the Assessment Tool.
  4. Indemnification. Customer shall indemnify Skycure and hold it harmless against any liability, loss, damage or claim resulting from any breach by Customer of this Agreement or from the installation and use of the Assessment Tool.
  5. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY. THE SKYCURE TECHNOLOGIES ARE PROVIDED “AS-IS, WITH ALL FAULTS” AND NEITHER SKYCURE NOR ITS LICENSORS MAKE ANY WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE SKYCURE TECHNOLOGIES OR ANY MATERIALS OR SERVICES OR THEIR USE. SKYCURE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SKYCURE DOES NOT GUARANTEE OR WARRANT THAT SKYCURE TECHNOLOGIES WILL BE FREE OF DEFECTS, RUN ERROR-FREE OR UNINTERRUPTED, MEET CUSTOMER’S REQUIREMENTS OR THAT ANY REPORTS GENERATED BY THE SKYCURE TECHNOLOGIES WILL BE ACCURATE. CUSTOMER AGREES THAT IT WILL USE THE ASSESSMENT TOOL AT ITS OWN DISCRETION AND RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES THAT ARISE FROM SUCH USE. IN NO EVENT WILL SKYCURE BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF SKYCURE AND ITS LICENSORS UNDER THIS AGREEMENT SHALL NOT EXCEED $100. THE DISCLAIMERS AND LIMITATIONS IN THIS SECTION 5 WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
  6. Term and Termination. This Agreement will terminate upon the earlier of (a) ten (10) days after the date of this Agreement; (b) immediately following the Demonstration; or (c) immediately upon notice by either party. Upon any expiration or termination of this Agreement: (i) all licenses and rights granted by Skycure to Customer hereunder shall terminate; and (ii) Customer will cease all use of the Skycure Technologies; and (iii) Customer shall immediately return to Skycure the Assessment Tool, all duplicates, and any Skycure proprietary or confidential information. The provisions of Sections 2, 3, 4, 5, 6 and 7 shall survive and remain effective after the effective date of termination or expiration of this Agreement.
  7. Miscellaneous. This Agreement along with the Privacy Policy and the Supplemental Assessment Tool Disclosure and all other documents incorporated by reference to the Agreement, constitute the entire agreement between Customer and Skycure, and it supersedes any prior proposal, representation, or understanding between the parties. Neither this Agreement, nor any rights, licenses nor any obligations hereunder, may be assigned by Customer without the prior written consent of Skycure. Any attempted assignment in violation of this Agreement shall be void and without effect. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all Skycure Software and Skycure Services and accompanying documentation provided by Skycure are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by these terms and shall be prohibited except to the extent expressly permitted by these terms. Skycure may freely assign this Agreement and its rights and obligations herein. If the Skycure entity contracting with Customer is Skycure US, then this Agreement shall be exclusively governed by the laws of the State of California, without regard to the choice of law provisions, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Skycure Services shall be subject to the exclusive jurisdiction of the competent State and Federal courts in San Francisco, California. Otherwise, his Agreement shall be exclusively governed by the laws of the State of Israel, without regard to the choice of law provisions thereof, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the courts of Tel-Aviv Yaffo or the Central District. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision, with all other provisions remaining in full force and effect. The failure of Skycure to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Skycure in writing. The section headings in the Agreement are included for convenience only and shall take no part in the interpretation, or construing of the Agreement. “Including”, whether capitalized or not, means without limitation.
  8. Modification. Skycure reserves the right to modify the terms and conditions of this Agreement effective immediately upon their initial posting on Skycure’s website, or as required by applicable law or regulation. Customer may terminate this Agreement upon notice to Skycure after being notified of such changes.

Last updated: June 7, 2017