THIS SERVICES AGREEMENT (the “Agreement“) constitute a binding agreement between you and MoovingON Ltd, regarding NOC services provided by us to you, and is an integral part of the statement of work signed between you and us, unless otherwise was agreed in writing.
In this Agreement, “We” or “Us” or “Company” shall mean MoovingON Ltd., an Israeli Company, CN# 514747740. We refer to “You” or “Customer” as Company’s customer who signed with the Company and/or Company’s reseller, a statement of work / business offer/ quote (all shall be referred as “SOW“). Each of the parties to this Agreement may be referred to herein as a “Party” and together as the “Parties“.
WHEREAS The Service Provider has offered to provide the Company with the Services, as an independent contractor, and the Company wishes to receive such Services from the Services Provider; and
WHEREAS the Parties desire to regulate their engagement with respect to the Services, in accordance with the terms and conditions set forth herein.
NOW THEREFORE, the Parties agree as follows:
In this Agreement, the following capitalized terms shall have the meaning ascribe next to them:
- “Agreement” – this service agreement including all its exhibits.
- “NOC Services” – Professional services provided by Service Provider’s human resources to monitor and fix technical incidents.
- “SRE\DevOps services” – professional services provided by Service Provider’s human resources for general DevOps and SRE tasks.
- “moovingon.ai” – A cloud operation platform developed, owned, and managed by the Service Provider to provide part of the Services.
- “Deliverables” – the deliverables agreed upon in the SOW and any other documents produced by Service Provider (in any form) due to the performance of the Services, which include Company’s Data (as defined in Section 6.3 below).
- “Services” – NOC Services and/or SRE\DevOps services, as set forth in the SOW.
2. THE ENGAGEMENT; THE SERVICES
2.1. Service Provider shall provide the Company with the Services and shall deliver to the Company the Deliverables, all in accordance with the terms and conditions of, and by the times set forth in, the SOW.
2.2. Service Provider hereby declares that the Service Provider has the experience, talent, expertise and knowledge required in order to perform the Services.
2.3. Services Provider will provide all equipment, tools, know-how and other resources necessary to perform the Services, at the Service Provider’s sole cost and expense.
2.4. Service Provider shall utilize the highest professional skill, diligence, ethics and care to ensure that all Services are performed to the full satisfaction of the Company and to provide the expertise required in connection with the Services.
2.5. Service Provider may not employ or engage sub-contractors to assist him without receiving the Company’s prior written consent.
2.6. Service Provider represents and warrants that:
2.6.1. it has full legal power and authority to carry on its business and to enter into this Agreement and perform all of its obligations hereunder.
2.6.2. in performance of its obligations under this Agreement, Service Provider shall comply with all applicable laws, ordinances, rules, regulations, orders, licenses, permits and other governmental requirements.
2.6.3. in performance of the Services, Service Provider shall adhere to the terms and conditions of the SOW; and shall ensure that the Deliverables satisfy the terms and conditions of the SOW. It’s clarified that regarding any contradiction between the SOW and this Agreement – the terms of this Agreement prevail.
2.6.4. All Deliverables and any Work Product (as defined below) in connection with this Agreement shall be free and clear of any liens or other rights of any third party and will be compliant with the terms of this Agreement.
2.7. No-Conflict. Service Provider shall avoid any conflict of interests with the Company. In the event that the Service Provider becomes aware of any potential conflicts of interest, the Service Provider shall disclose such conflict to the Company immediately.
3.1. Consideration. In consideration for the Services, the Company shall pay the Service Provider the amounts set forth in the SOW (the “Consideration“), in accordance with the milestones and payment terms set forth in the SOW.
3.2. If not otherwise set forth in the SOW, payment is made within 30 days of invoice.
3.3. Taxes. Service Provider shall bear any and all taxes and levies in connection with any payments made to Service Provider pursuant to this Agreement, other than VAT which, if applicable, shall be added to any payment against a tax invoice. In the event that pursuant to any law or regulation, tax is required to be withheld at source from any payment made to Service Provider, the Company shall withhold said tax at the rate set forth in the certification issued by the appropriate taxing authority and provided to Company by Service Provider, or in the absence of such certification, at the rate determined by said law or regulation.
3.4. The payments which will be explicitly set forth in the Payment Milestones (as defined in the SOW) shall constitute the full and final consideration for the Services and Service Provider shall not be entitled to any additional consideration, of any form, including, without limitation, expense reimbursement, unless otherwise was agreed between the Parties in in writing.
RELATIONSHIP OF THE PARTIES
4.1. It is a principle term of this Agreement, agreed to and understood by the Parties hereof, that Service Provider shall provide the Services to the Company as, and only as, an independent contractor. No employer-employee relationship is created between the Company and Service Provider’s personnel.
4.2. Service Provider is not authorized to obligate the Company in any way or create any commitments of the Company, except to the extent explicitly authorized by the Company in writing.
TERM AND TERMINATION
5.1. This Agreement shall govern the relationship between the Parties commencing as of the Commencement Date stated in the SOW and shall govern the relationship between the Parties until terminated pursuant to Sections 5.2 and 5.3 below.
5.2. The Services may be provided to Company based on annual plan or monthly plan, as agreed in the SOW, and may be terminated in accordance with the terms set forth therein.
5.3. Termination for material breach. Notwithstanding the above, this Agreement may be terminated by either Party, with 14 days prior notice, due to a material breach of any provision of this Agreement or its exhibits.
5.4. Service Provider shall have no right for a lien on any of the Company’s assets, equipment or any other material in his possession (including, without limitation, any Deliverables, Work Product and Company IP and Confidential Information, as defined below). Notwithstanding, within 30 days after termination of the Agreement, Company shall be able to use Moovingon.ai for accessing the applicable Deliverables produced by Service Provider while performing the Services during the Term. By the end of such 30 days period – such Company’s Deliverables shall be deleted.
5.5. Sections 1, 4, 5, 6, 7, 8, 9 and 10 will survive the termination or expiration of this Agreement.
6.1. Proprietary Rights in the Deliverables. Service Provider agrees that the Deliverables shall be fully owned by the Company, including without limitation, the exclusive right to use, modify, update, manufacture, sell or license the Deliverables and any part or derivative thereof, provided that any such use of the Deliverables shall be for internal business use only.
6.2. Pre-Existing IPR. Notwithstanding, it’s clarified that MoovingON retains all rights in its previous knowledge, know how, and any IP rights it has before the execution of this Agreement, including (but not limited to) with respect to its software, systems, codes, platform (Moovingon.ai), designs and format materials used to produce the Deliverables (“MoovingON Pre-existing IP”). To the extent any MoovingON Pre-existing IP and/or Incorporated MoovingON Rights (as defined below) is incorporated in the Deliverables provided to the Company and subject to the receipt of full payment by MoovingON from the Company in accordance with the terms and conditions of this Agreement, MoovingON hereby grants the Company, for internal business use only, a worldwide, non-exclusive, perpetual, irrevocable, paid up, royalty-free, transferable, fully sub-licensable right and license to use, the MoovingON Pre-existing IP. Furthermore, it is agreed between the parties that Service Provider shall be freely entitled to treat and use such MoovingON Pre-existing IP and Incorporated MoovingON Rights as its sole and exclusive property and any such use shall not constitute a breach of this Agreement.
it is hereby clarified that all right, title and interest in and to any and all experience, knowledge, skills, professional methodologies, know-how and all existing intellectual property, inventions, data, works, discoveries, designs, technology and improvements (whether or not protectable by a patent or a copyright) created by the Service Provider during the performance of the Services hereunder and which are general development capabilities not specifically related to the business of the Company and don’t breach the provisions of Section 8 below and/or infringe any intellectual property rights of the Company, shall be the sole and exclusive property of the Service Provider (“Incorporated MoovingON Rights”). However, Service Provider hereby grants the Company, for internal business use only, a worldwide, non-exclusive, perpetual, irrevocable, paid up, royalty-free, transferable, fully sub-licensable right and license to use, the Incorporated MoovingON Rights as part of the Deliverables.
6.3. Company Material. The Service Provider acknowledges that all written or electronic or oral information, documents, descriptions, designs, data or other material it may be provided by the Company or have access to in the course of performance of Services (“Company Data“) under this Agreement are owned by or otherwise proprietary to Company or its third party licensors. The Service Provider acknowledges and agrees that this Agreement does not grant any right, title or interest in and to any patents, copyrights, trade secrets, trademarks or other property rights or rights of ownership in such material or any confidential or proprietary information of Company in whatever form (“Company IP”), and acknowledges that such Company IP is intellectual property belonging to Company or its licensors.
6.4. Non-Infringement. The Service Provider undertakes that, except as set forth in Section 6.2 above, the components of the Deliverables, will not contain any preexisting work subject to the copyright or other proprietary right of any third party.
7.1. Warranty Obligation. Service Provider warrants solely to Company that all Services performed hereunder will be completed in a competent and professional manner consistent with commonly accepted industry standards.
7.2.1. EXCEPT FOR THE WARRANTIES STATED IN THIS SECTION 7, SERVICE PROVIDER MAKES NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED.
7.2.2 SERVICE PROVIDER MAKES NO OTHER WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.2.3 EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SERVICE PROVIDER SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF COMPANY, AND EVEN IF SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SERVICE PROVIDER’S LIMITATION OF LIABILITY UNDER THIS SECTION SHALL NOT APPLY TO ACTS OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
7.2.4 EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS, SERVICE PROVIDER’S AGGREGATE LIABILITY UNDER ANY CLAIMS ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE AVERAGE MONTHLY FEES PAID BY COMPANY TO SERVICE PROVIDER UNDER THIS AGREEMENT.
8.1. “Confidential Information” shall include, without limitation, all trade secrets, software, services, data, formulae, processes, procedures, methods, documentation, information, records, drawings, designs, specifications, test results, evaluations, know how, materials related to tests, business, customers, assets, products, processes, or prospects related to the either Party, any and all either Party IP, and any and all Work Product. The term “Confidential Information” shall not include information that is or becomes part of the public domain through no act or fault of either Party.
8.2. Each Party shall hold all Confidential Information of the other Party in strict confidence and shall in any case protect such Confidential Information with no less diligence than that with which such Party protects its own confidential or proprietary information. During the term of this Agreement and at any time thereafter, each Party shall not use any Confidential Information except to perform its explicit obligations under this Agreement, and shall not disclose such Confidential Information in any way to any third party. Each Party shall take all precautions to ensure that the secrecy of the other Party’s Confidential Information is preserved to the highest industry standards. Each Party will be responsible that its personnel and other persons obtaining access to the Confidential Information through that Party will also act in strict compliance with the foregoing, and will be liable for their actions and omissions.
8.3. Upon the request of the Company or the expiration or termination of this Agreement for any reason whatsoever, Service Provider shall deliver to the Company any and all Work Product together with all copies thereof, and any other material containing or disclosing any Company IP or Confidential Information.
9. SECURITY AND DATA PROCESSING
9.1. Service Provider undertakes to keep Company’s information secured and private. Therefore, Service Provider shall: (i) protect the security and integrity of Company’s Confidential Information and Company Data using and maintaining adequate administrative, technical and physical safeguards consistent with industry standards and all applicable laws to protect against anticipated threats or hazards to, or the unauthorized access, disclosure or use of, Company Data or Confidential Information; (ii) comply with the information security standards and requirements set forth under the Israeli Law and (iii) implement, maintain and update commercially reasonable and current security measures, procedures, policies, controls and practices, which shall test and prevent unauthorized access to Service Provider’s system as well as Company Data stored on Service Provider’s system (if applicable).
9.2. It’s clarified that as part of providing Company the Services, Service Provider does not intend to process any personal data, as it’s defined under the Israeli Law and/or the EU General Data Protection Regulation (Regulation 2016/679) (“GDPR”) (hereinafter: “Personal Data“). However, to the extent that Service Provider, for any reason, process such Personal Data, Service Provider shall do so on Company’s behalf, solely for the purpose of providing Company with the Services and according to Company’s instructions and under the applicable law.
10.1 No solicitation. During the Term and for a period of twelve (12) months thereafter Company shall not: (i) directly or indirectly, solicit Service Provider’s consultant or otherwise, any of Service Provider’s employee(s) or induce or attempt to induce any such employee to terminate or reduce the scope of its engagement with Service Provider; and/or (ii) directly or indirectly, solicit or induce, or attempt to solicit or induce, any of Service Provider’s consultants, contractors, service providers, agents, distributors, customers or suppliers to terminate, reduce or modify the scope of such person’s engagement with Service Provider.
10.2. Entire Agreement: This Agreement together with the SOW constitute the entire agreement between the Parties hereto with respect to the subject matter hereof and supersedes all prior understandings of such Parties with regard thereto. This Agreement cannot be modified, supplemented or rescinded except by a written instrument signed by all of the Parties to this Agreement.
10.3. Amendment; Waiver. This Agreement may not be amended and no term may be waived, except by the written agreement signed by both Parties. The failure of a Party to enforce in any one or more instances any of the terms and conditions of this Agreement shall not be construed as a waiver of future performance of any such term or condition.
10.4. Assignment. Neither Party may assign, subcontract, delegate or otherwise transfer this Agreement or any part thereof, voluntarily or by operation of law, without the other Party’s prior written consent, and any such assignment or transfer without such consent shall be null and void and of no force or effect whatsoever. Notwithstanding, with respect to any merger, sale of assets, stock or other equity, or other transaction resulting in a change of control of a Party (or which causes the business of a Party to which this Agreement relates to be assumed or acquired by another party) and an assignment of this Agreement in the framework thereof will not require such consent of the other Party.
10.5. Severability: If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable under applicable law, then such provision shall be excluded from this Agreement and the remainder of this Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms; provided, however, that in such event this Agreement shall be interpreted so as to give effect, to the greatest extent consistent with and permitted by applicable law, to the meaning and intention of the excluded provision as determined by such court of competent jurisdiction.
10.6. Governing Law: The laws of the state of Israel, without giving effect to conflict of law rules, shall govern the interpretation and enforcement of this Agreement. Any dispute arising under or in relation to this Agreement shall be exclusively resolved in the competent court of the Tel-Aviv District, Israel, and each of the Parties hereby submits irrevocably to the exclusive jurisdiction of such court.
10.7. Third Parties: Nothing in this Agreement, express or implied, is intended to confer upon any person, other than the parties hereto and their successors and assigns, any rights or remedies under or by reason of this Agreement.
10.8. Notices: All notices and other communications required or permitted hereunder to be given to a Party to this Agreement shall be in writing and shall be emailed or mailed by registered mail, postage prepaid, or otherwise delivered by hand or by messenger, addressed to such Party’s address as set forth in the SOW or at such other address as the Party shall have furnished to the other Party in writing in accordance with this provision. Any notice sent in accordance with this Section 10.8 shall be effective (i) if mailed, three (3) business days after mailing, (ii) if sent by messenger, upon delivery, and (iii) if sent via email, upon confirmation of receipt or (if transmitted and received on a non-business day) on the first business day following confirmation of receipt.
Last Update: Nov-01-2022