By clicking on the “Start Free” button, or otherwise accessing or using the Platform (as defined below), you agree to the terms of this Agreement. If you do not agree to the terms, do not click the “Start Free” button, or otherwise access or use the Platform.
This Agreement constitutes a binding agreement between Polar Security Ltd., an IBM Company ("Polar Security") and the customer specified in the trial sign up("Customer") which, inter alia, sets forth the terms and conditions under which the Customer is entitled to use the Platform (as defined below). An individual entering into this Agreement on behalf of the Customer, represents that he/she has the right, authority and capacity to act on behalf of the Customer and to bind the Customer to this Agreement. Polar Security and Customer may be collectively referred to herein as the "Parties", and each individually as a "Party".
1. SUBSCRIPTION
Subject to the terms and conditions of this Agreement, Polar Security grants Customer a limited, personal, non-exclusive, non-transferable, non-sublicensable right, during the Trial Period (defined below), to remotely access and use the Polar Security's software-as-a-service (SaaS) and its on-prem extensions (“On-prem Components”) (together the "Platform"), solely for Customer's internal purposes of evaluating its functionality and technology(collectively, the "Subscription").
Unless otherwise indicated, the term "Subscription" also includes any appliance and any manual or documentation ("Documentation") provided or made available to Customer in connection with the operation of the Platform. Customer may use the Platform subject to the use limitations specified in this Agreement, the respective Proposal and applicable laws and regulations.
Unless otherwise specified in writing, the trial subscription is offered for 45 days. ("Trial Period"). On or before the expiration of the Trial Period, Customer will need to submit an order for any continued use. Polar Security may withdraw or terminate trial Subscription at any time. Polar Security may at any time suspend, revoke, limit or refuse participation in or use of the trial Subscription.
2. ACCOUNT
In order to access the Platform, Customer must set up an administrative account with the Polar Security, by submitting the information requested in the applicable Platform interface ("Account"). Each of Customer's employees who are authorized by Customer to use the Platform ("User") may need to set up a user account (each, a "User Account", and references herein to the
"Account" shall be deemed to include all such User Accounts if applicable). Customer warrants that all information submitted during the registration process is, and will thereafter remain, complete and accurate. Customer shall be responsible and liable for all activities that occur under or in such Account. Customer will require that all Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Customer shall be fully responsible and liable for any breach of this Agreement by a User. Unauthorized access or use of the Platform must be immediately reported to the Polar Security.
3. USAGE RESTRICTIONS
As a condition to (and except as expressly permitted by) the Subscription, Customer shall not do (or permit or encourage to be done) any of the following Subscription restrictions (in whole or in part): (a) copy, manufacture, "frame" or "mirror" the Platform; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Platform to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Platform; (d) modify, adapt, translate, or create a derivative work of the Platform; (e) decompile, disassemble, decrypt, reverse engineer, or extract or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) or internal composition of, the Platform; (f) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Platform; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Platform; (h) use the Platform to develop any service or product that is the same as (or substantially similar to), or otherwise competitive with, the Platform; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Platform; (j) employ any hardware, software, device, or technique to pool connections or reduce the number of servers/machines, Users, vendors, or endpoints that directly access or use the Platform (sometimes referred to as 'virtualization', 'multiplexing' or 'pooling'); or (k) take any action that imposes or may impose (as determined in Polar Security's reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Platform or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure; (l) undertake any activity or host Customer Data that is (i) unlawful, fraudulent, harmful, malicious, obscene, or offensive; (ii) threatens or violates the rights of others; (iii) disrupts or gains (or intends to disrupt or gain) unauthorized access to data, services, networks, or computing environments within or external to Polar Security; (iv) send unsolicited, abusive or deceptive message of any type; or (v) distribute any form of malware; (m) use the Subscription if failure or interruption of the Subscription could lead to death, serious bodily injury, or property or environmental damage.
4. SUPPORT SERVICES
The Trial Subscription is not entitled to receive any support services. Polar Security may choose to provide support services at its own discretion.
5. ACCESS TO ON-PREM COMPONENTS
Polar Security has the right to remotely access the On-Prem Components at all reasonable times for the purposes of updates, installation, inspection, maintenance, repair, relocation, debugging and removal ("Installation and Maintenance"). Polar Security may access On-prem Components upon coordination and Customer’s prior approval, for the purpose of providing Installation and Maintenance.
6. LOGS AND METRICS
Customer acknowledges and understands that Polar Security may monitor Customer’s general use of the Platform, including, but not limited to, metrics and logs, for the purpose of improving Polar Security's Platform and services. For the avoidance of doubt, Polar Security will not collect or share any personal information, or any other data not related to Polar Security Platform usage.
7. OWNERSHIP
7.1. Platform. Polar Security (and/or its licensors and suppliers, as applicable) is, and shall be, the sole and exclusive owner of all right, title and interest (including without limitation all intellectual property rights) in and to: (a) the Platform, and all related software and intellectual property; and (b) any and all improvements, derivative works, and/or modifications of/to the foregoing, regardless of inventorship or authorship. Customer shall make, and hereby irrevocably makes, all assignments and/or waivers necessary or reasonably requested by Polar Security to ensure and/or provide Polar Security (and/or its designee(s)) the ownership rights set forth in this paragraph. Polar Security shall be entitled, from time to time, to modify and replace the Features (but not material functionalities, unless it improves the material functionality) and user interface of the Service. Nothing herein constitutes a waiver of Polar Security’s intellectual property rights under any law.
7.2. Feedback. If Polar Security receives any feedback, suggestions, or ideas for or about the Platform (collectively, "Feedback") all rights, including intellectual property rights in such Feedback shall belong exclusively to Polar Security and such shall be considered Polar Security's Confidential Information. Customer hereby irrevocably and unconditionally transfers and assigns to Polar Security all intellectual property rights it has in such Feedback and waives any and all moral rights that Customer may have in respect thereto. It is further understood that use of Feedback, if any, may be made by Polar Security at its sole discretion, and that Polar Security in no way shall be obliged to make use of the Feedback.
7.3. Analytics Information. Any non-Customer-identifying information, data, reporting, suggestions, analyses, and/or intelligence relating to the operation, support, and/or Customer’s use, of the Platform (such as metadata, aggregated data, analytics, security findings or discoveries, etc.) (collectively, "Analytics Information") may be used by the Polar Security for providing the Platform, for development, and for statistical purposes. Such Analytics Information is Polar Security's exclusive property.
7.4. Customer Data.
7.4.1. As between the Parties, Customer is, and shall be, the sole and exclusive owner of all data and information inputted or uploaded to the Platform by or on behalf of Customer or otherwise integrated with the Platform via an API, or data belonging to Customer's applications within the environment in which the Platform is made available (the "Customer Data"). Customer hereby grants Polar Security and its affiliates a worldwide, non-exclusive, non-assignable (except as provided herein), non-sublicensable (except to Polar Security's subcontractors, if applicable), non-transferable right and license, to access and use the Customer Data, including without limitation for Polar Security's provision of the Platform to Customer and as further described in this section.
7.4.2. Customer represents, warrants and covenants that to the extent the Customer Data includes any personally identifiable information, Customer has received and/or obtained any and all required consents or permits and has acted in compliance with any and all applicable privacy laws in order to allow the Polar Security to receive, transfer and use the Customer Data solely for Polar Security's provision of the Platform and related services hereunder. If any Customer Data could be subject to governmental regulation or may require security measures beyond those specified by Polar Security for the Platform, Customer will not provide, allow access to, or input the Customer Data for processing in the Platform unless Polar Security has first agreed in writing to implement additional security and other measures.
7.4.3. Polar Security will not use or disclose the results arising from Customer’s use of the Platform that are unique to Customer Data or that otherwise identify Customer. Polar Security may however use Customer Data and other information that result from Customer Data in the following ways:
(i) As part of the Platform for the purpose of managing and improving the Platform provided that any data subject to applicable privacy regulations will be rendered into a form that no longer constitutes personal data. This usage right will survive the termination or expiration of the Agreement.
(ii) Polar Security may be required to disclose the Customer Data: (a) to satisfy any applicable law, regulation, legal process, subpoena or governmental request; or (b) to collect, store, transfer, and/or process the Customer Data through Polar Security's affiliates, subsidiaries, third party service providers and vendors as reasonable necessary to provide the Platform.
8. THIRD PARTY COMPONENTS
The Platform may use or include third party open source software, files, libraries or components that may be distributed to Customer and are subject to third party open source license terms. A list of such components, as may be updated from time to time by Polar Security, will be provided to Customer upon request. If there is a conflict between any open source license and the terms of this Agreement, then the open source license terms shall prevail but solely in connection with the related third party open source software. Polar Security makes no warranty or indemnity hereunder with respect to any third party open source software.
The Platform application layer (in whole or in part) and Customer Data are hosted by AWS and not managed by Polar Security. The Platform infrastructure, certain aspects of the Platform, and related services, including: data center, servers, storage and network; application and data backup; perimeter security and threat detection; and APIs for application deployment, monitoring and operation (collectively, the "Third Party Cloud Services") are hosted and managed by AWS. Accordingly, notwithstanding anything in this Agreement:
a. If AWS withdraws or terminates its services or Polar Security's or Customer's access to such services, Polar Security may terminate the Platform immediately upon the effective date of such termination by AWS by providing notice of termination to Customer.
b. Polar Security makes no warranties or conditions, express or implied, regarding the Third-Party Cloud Services or to the Platform to the extent dependent on the Third-Party Cloud Services. The foregoing disclaimer does not apply to or limit compensation that may be payable under the SLA.
c. The IBM Data Security and Privacy Principles (DSP) and Data Processing Addendum (DPA) do not apply to the Third Party Cloud Services or to the Cloud Service solely to the extent dependent on or under the control of the Third-Party Cloud Services or AWS. With respect to such Third Party Cloud Services and the Cloud Service to the extent dependent on or under the control of the Third Party Cloud Services or AWS, the data protection and technical and operational security measures for the Cloud Service will be no less than those described in the AWS Customer Agreement and its referenced attachments available here: https://aws.amazon.com/agreement/.
9. DATA PROTECTION
Polar Security will treat Customer Data as confidential by only disclosing to Polar Security employees and contractors to the extent necessary to provide the Platform. Polar Security will protect Customer Data in accordance to the Data Security Principles (DSP) at https://www.polar.security/legal/dsp. Customer is responsible for assessing the suitability of the Platform for the Customer Data and Customer’s intended use. Customer acknowledges that the use of the Platform meets Customer’s requirements and processing instructions required to comply with applicable laws.
10. DATA PROCESSING
Polar Security’s Data Processing Agreement (DPA) is found at https://www.polar.security/legal/dpa. The DPA will specify how Polar Security will process personal data in Customer Data. The DPA applies to personal data contained in Customer Data, if and to the extent: (i) the European General Data Protection Regulation (EU/2016/679); or (ii) other data protection laws identified at https://www.polar.security/legal/dpl apply.
Upon request by either party, Polar Security, Customer or affiliates of either, will enter into additional agreements as required by law in the prescribed form for the protection of regulated personal data included in Customer Data. The parties agree (and will ensure that their respective affiliates agree) that such additional agreements will be subject to the terms of this Agreement.
11. DISCLAIMER OF WARRANTIES
A TRIAL SUBSCRIPTION IS PROVIDED AS-IS, WITH NO WARRANTIES OF ANY KIND, INCLUDING i) NO WARRANTY FOR UNINTERRUPTED OR ERROR-FREE OPERATION; or ii) NO OTHER ARRANTIES SUCH AS IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
12. LIMITATION OF LIABILITY.
Polar Security’s entire liability for all claims related to the Agreement will not exceed the amount of any actual direct damages incurred by Customer up to U.S. $1,000 (or equivalent of local currency).
POLAR SECURITY WILL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT OR ECONOMIC CONSEQUENTIAL DAMAGES, OR LOST PROFITS, BUSINESS, VALUE, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
13 MISCELLANEOUS
13.1. Assignment. Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, this Agreement may be assigned by Polar Security in connection with a merger, consolidation, sale of all of the equity interests of Polar Security, or a sale of all or substantially all of the assets of the Polar Security to which this Agreement relates. Customer acknowledges that Polar Security has been acquired by International Business Machines (“IBM) and consents to future assignment to IBM. Without derogating from and subject to the abovementioned, this Agreement will bind and benefit each Party and its respective successors and assigns.
13.2. Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Israel without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed.
Any claim, dispute or controversy between the Parties will be subject to the exclusive jurisdiction and venue of the courts located in Tel Aviv, Israel and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, each Party may seek equitable relief in any court of competent jurisdiction.
13.3. Compliance with Laws. Each party is responsible for complying with (a) laws and regulation applicable to its business and Customer Data; and (b) import, export and economic sanction laws and regulations, including the including the defense trade control regime of the United States of America and any applicable jurisdictions that prohibit or restrict the import, export, re-export, or transfer of products, technology, services or data, directly or indirectly, to or for certain countries, end uses or end users. Polar Security will not serve as Customer’s exporter or importer, except as require by data protection laws, for Customer Data or use the Platform from a country outside Customer’s business address.
13.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect and such provision shall be reformed only to the extent necessary to make it enforceable.
13.5. No Waiver. 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 shall not be deemed a waiver by that Party as to subsequent enforcement or actions in the event of future breaches. Any waiver granted hereunder must be in writing.
13.6. No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement (such as Polar Security's Affiliates), there shall be no third-party beneficiaries of or under this Agreement.
13.7. Relationship. This Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party.
13.8. Force Majeure. Polar Security will not be liable for any delay or failure to provide the Platform resulting from circumstances or causes beyond the reasonable control of Polar Security including, but not limited to on account of strikes, shortages, riots, insurrection, fires, flood, storms, explosions, acts of God, war, government or quasi-governmental authorities actions, riot, acts of terrorism, earthquakes, explosions, power outages, pandemic or epidemic (or similar regional health crisis), or any other cause that is beyond the reasonable control of Polar Security.
13.9. Cause of Action. Neither party will bring a legal action arising out of or related to the Agreement more than two years after the cause of action arose.
13.10. Notices. Except as may be specified otherwise in this Agreement, all notices, consents, or other communications provided for in connection with this Agreement shall be in writing, and shall be deemed given upon: (a) personal delivery; (b) the second business day after mailing via registered or certified mail with postage prepaid and return receipt requested; (c) upon delivery confirmation by nationally recognized overnight delivery service ("Courier"); (d) the second business day after sending confirmed by facsimile; (e) the first business day after sending by email.
