MetalBear Cloud Terms of Service/EULA

Last updated: September , 2023

Welcome to MetalBear Cloud!

This cloud solution lets you register, login, manage and pay for your mirrored for Teams subscription and operator license that is provided as part of it.

Please read the following Terms and Conditions ("Terms" and together with the Privacy Policy, the "Agreement") carefully before using our site available at: https://app.metalbear.co/ (the "Site"), certain cloud-based services and using the mirrord operator software, provided on our platform (together with the Site the "Platform").

By accessing and/or by using the Platform, you acknowledge and agree that you, on your own behalf as an individual, and on behalf of your employer, third party or another legal entity (collectively "you" or "your" or "Customer"), are entering a legal agreement with MetalBear, Inc. and MetalBear Tech Ltd., as applicable ("MetalBear", "us", "we" or "our"), and have understood and agree to comply with, and be legally bound by this Agreement. 

IF YOU DO NOT ACCEPT THE TERMS, YOU MUST NOT CLICK "I AGREE/I ACCEPT/SIGN UP" (OR THE SIMILAR BUTTON OR CHECKBOX), AND YOU ARE NOT AUTHORIZED TO ACCESS OR USE ANY PART OF THE SERVICE.

The Platform is only intended for individuals aged eighteen (18) years or older. If you are under eighteen (18) years please do not use the Platform. If you are entering into this Agreement on behalf of your employer or other legal entity, you represent and warrant that you have full authority to act on behalf of the employer or other legal entity and bind such employer or other legal entity to this Agreement. If you do not agree to comply with and be bound by this Agreement or do not have authority to bind your employer or other legal entity, please do not accept these Terms and immediately refrain from accessing and/or using the Platform. You hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law.

For clarity, this Agreement shall not derogate from any applicable website terms and conditions from which you may download and/or use.

1. Definitions

The following capitalized terms have the meanings set forth below:

1.1. "Content" means any text, documents, descriptions, interactions, data, information, video clips, logos, icons, software, links, reports, files, images, graphics, or other content.

1.2. "Intellectual Property Rights" means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, whether registered or unregistered, and whether vested, contingent, or future) in and to inventions, discoveries, works of authorship, designs, software, technical information, databases, know-how, mask works, methods, technology, and other intellectual property, and includes but is not limited to patents, copyrights and similar authorship rights, moral (and similar personal) rights, mask work rights, data and database rights, trade secret rights and similar rights in confidential information and other non-public information, design rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as: (i) all applications, registrations, renewals, reexaminations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) all goodwill associated with the foregoing.

1.3. "Subscription Term" means the duration of Subscription as specified in your Order which may be a monthly or annual duration and if not specified, the duration specified in this Agreement.

1.4.  "Order" means as the case may be: (a) the offline sales order form (in) to which this Agreement is attached or incorporated, and which is executed by both parties; or (b) the MetalBear online sales web form accepted by you. References herein to the "Agreement" shall be deemed to include the Order.

1.5. "MetalBear Content" means any Content appearing on or in, or otherwise provided or made available via, the Platform.

1.6. "Sensitive Data" means any (i) categories of data enumerated in Article 9(1) of the European Union's General Data Protection Regulation (Regulation 2016/679, aka the GDPR) or any successor law; (ii) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards ("PCI DSS"); (iii) Nonpublic Personal Information (NPI) (as defined by the Gramm-Leach-Bliley Act and its implementing rules and regulations) or Personal Health Information (PHI) data (as defined by the Health Insurance Portability and Accountability Act and its implementing rules and regulations); or (iv) any data similar to the foregoing that is protected under foreign or domestic laws.

1.7 "Software" means the mirrored operator software and any software product(s) for which you have been granted, or purchased a license to download or subscription pursuant to your Order and related documentation, and features, as well as any fixes, updates or upgrades thereto. 

2. The Service.  MetalBear, offers a cloud based service to manage, and pay for a downloadable seat-based self-hosted Software (each a "Service"). The Services under this Agreement may be provided by MetalBear and/or any of MetalBear's affiliates. MetalBear may offer additional services and/or products which are subject to the other agreements, (each an "Other Agreement"). For clarity, the service shall not be used for permanent or "production" hosting. MetalBear shall provide a first level response within 72 hours for any support request on the Platform made by you.

3. Subscription. Subject to the terms and conditions of this Agreement, during the respective Subscription Period MetalBear grants you a limited, worldwide, fully revocable, non-exclusive, non-sublicensable, non-assignable, non-transferable right to download and use, as applicable, solely for your personal or internal institutional use for testing, developing and demo purposes (collectively: the "Subscription"). You are solely responsible for providing all equipment, systems, assets, access, and ancillary goods and services needed to download, access and use the Service, for ensuring their compatibility with the Service.

4. Account. In order to access the Service, you may be required to set up an account by submitting the information requested in the applicable online form or interface which will be made available to you via the Platform, such as, your full name, email address, company name and company Platform address ("Account"). In addition, in certain contexts, you may need to request to use a Service by following the applicable online instructions to receive a certain License Key to be able to download and use the Software. When creating the Account, or submitting information online, you must provide accurate and complete information. You agree not to create an Account for anyone else or use the Account of another. As between MetalBear and you, you alone shall be responsible and liable for maintaining the confidentiality and security of the Account credentials, as well as for all activities that occur under or in such Account. You must notify MetalBear immediately of any breach of security or unauthorized use of your Account. If you wish to delete your Account you may send an email request to MetalBear at <[email protected]>.  

5. Privacy. You agree that Personal Information (as defined in MetalBear's Privacy Policy available at https://metalbear.co/legal/privacy-policy/ (the "Privacy Policy") collected by MetalBear in connection with the foregoing, shall be processed in accordance with the then-current Privacy Policy, which is hereby incorporated into this Agreement by reference.

6. Restrictions. You shall not, directly or indirectly, publish, host or upload (or allow any third party to publish, host or upload) any illegal content to the Service and/or Software. At no point shall you make any unlawful use with the Service and/or Software, violate any applicable law or infringe any third party right. You agree not to, and shall not permit any third party to do any of the following (in whole or in part subject to the below): (a) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Service and/or Software to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (b) publicly perform, display or communicate the Service and/or Software, or otherwise use the Service and/or Software for several organizations/projects under one subscription; (c) disassemble, reverse engineer, decompile, decrypt, or attempt to derive the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Service and/or Software; (d) copy, frame" or "mirror", modify, alter, adapt, arrange, translate, improve, or create derivative works of the Service and/or Software and/or Platform or any part thereof or use the Service and/or Software and/or Platform to develop any service or product that is the same as (or substantially similar to) them; (e) circumvent, disable or otherwise interfere with security-related features of the Service and/or Software and/or Platform or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Service and/or Software and/or Platform; (f) remove, alter or obscure any proprietary notice or identification, including copyright, trademark, patent or other notices, contained in or displayed on or via the Service and/or Software and/or Platform; (g) use any communications systems provided by the Service and/or Software and/or Platform to send unauthorized and/or unsolicited commercial communications; (h) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Service and/or Software and/or Platform; (i) employ any hardware, software, device, or technique, or (j) take any action that imposes or may impose (as determined in MetalBear's reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Service and/or Software and/or Platform, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure (k) use MetalBear's name, logo or trademarks without our prior written consent; and/or (l) use the Service and/or Software and/or Platform to violate any applicable laws, rules or regulations, or for any unlawful, harmful, irresponsible, or inappropriate purpose, or in any manner that breaches this Agreement. You represent and warrant that your use of the Service and/or Software and/or Platform complies with all applicable laws and regulations (including, without limitation privacy, marketing and spam laws) and that you have obtained all required approvals, consents, permissions, licenses necessary in order to use the Service and/or Software and/or Platform. At no point shall you transmit content or use the Service for purposes related to gambling and pornography. For clarity and avoidance of doubt, as part of using the mirrord operator software, you may be granted limited features to modify the mirrord operator Software and publish certain patches (the "Modifications"). All such Modifications may only be used, copied modified, displayed, distributed, or otherwise exploited with a valid MetalBear cloud Subscription for the correct number of user seats and in accordance to those Terms.

7. Fees

7.1. The Services provided hereunder are currently for free, however, MetalBear may in the future charge a fee for certain features and/or Users. You will not be charged for any such uses of the Services unless you first agree to such charges, but please be aware that any failure to pay applicable charges may result in you not having access to some or all of the Services.

7.2 Trial period/Free subscription. MetalBear may, at its sole discretion, offer a free trial subscription to use the Service for evaluation purposes during the applicable trial period specified in the Order and/or within the Platform ("Trial/Free Period") prior to charging the fees. You acknowledges and agree that MetalBear may at any time cancel your access to the Service and/or revoke your licenses, including those related to the Software. Unless otherwise agreed between the parties, no fees are due for use of the Service during the Trial/Free Period. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, DURING THE TRIAL/FREE PERIOD THE SERVICE AND/OR THE SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTY WHASOEVER, AND TO THE MAXIMUM PERMITTED BY LAW, METALBEAR AND ITS AFFILIATES WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS OR LIABILITIES, WITH RESPECT TO TRIAL/FREE PERIOD. FOR GREATER CLARITY, DURING THE TRIAL/FREE PERIOD METALBEAR SHALL NOT BE LIABLE FOR HEREUNDER FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL OR EXEMPLARY DAMAGES OR LOSSES WHATSOEVER; NOR FOR DAMAGES OR LOSSES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, OR DAMAGES ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE AND/OR SOFTWARE. In the event of any inconsistencies between the terms of this Section 9 and other provisions of these Terms, the terms specified in this Section 9 shall prevail with respect to the Trial/Free Period. MetalBear has the right to terminate a Trial/Free Period at any time and for any reason.

7.3 Service Fees and Other Fees. Customer shall pay MetalBear the Service fees specified in the Order (the "Service fees"). Customer shall pay MetalBear whatever other fees or charges are specified in the Order ("Other fees", and together with the Subscription Fees, the "fees").

7.4 General. Unless expressly stated otherwise in the Order: (a) all fees are stated, and are to be paid, in U.S. Dollars; (b) all payments under this Agreement are non-refundable, and are without any right of set-off or cancellation; (c) all fees are payable, and shall be invoiced, in advance, and shall be paid within thirty (30) days of receipt of invoice; and (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of the rate of one and a half percent (1.5%) per month and the highest amount permitted by applicable law.

7.5 Suspension. MetalBear reserves the right to temporarily suspend provision of Service: (a) if Customer is seven (7) days or more overdue on a payment; (c) if MetalBear deems such suspension necessary as a result of Customer’s breach under Section ‎6 (Restrictions); (c) if MetalBear reasonably determines suspension is necessary to avoid material harm to MetalBear or its other customers, including if the Service's cloud infrastructure is experiencing denial of service attacks or other attacks or disruptions outside of MetalBear’s control, or (d) as required by law or at the request of governmental entities.

7.6 Taxes. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon MetalBear's net income. In the event that Customer is required by any law applicable to it to withhold or deduct taxes for any payment under this Agreement, then the amounts due to MetalBear shall be increased by the amount necessary so that MetalBear receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction. Any terms or conditions (whether printed, hyperlinked, or otherwise) in a purchase order or related correspondence, which purport to modify or supplement this Agreement (or the corresponding Order), shall be void and of no effect.

8. Confidentiality.

Each party may have access to certain non-public information and materials of the other party, in any form or media, including without limitation trade secrets and other information related to the products, software, technology, data, know-how, or business of the other party, and any other information that a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive (the "Confidential Information"). Each party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other party's Confidential Information from disclosure to a third party. The receiving party’s obligations under this Section ‎9, with respect to any Confidential Information of the disclosing party, shall not apply to and/or shall terminate if such information: (a) was already lawfully known to the receiving party at the time of disclosure by the disclosing party; (b) was disclosed to the receiving party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the receiving party has become, generally available to the public; or (d) was independently developed by the receiving party without access to, use of, or reliance on, the disclosing party’s Confidential Information. Neither party shall use or disclose the Confidential Information of the other party except for performance of its obligations under this Agreement ("Permitted Use"). The receiving party shall only permit access to the disclosing party's Confidential Information to its respective employees, consultants, affiliates, agents and subcontractors having a need to know such information in connection with the Permitted Use, who either (i) have signed a non-disclosure agreement with the receiving party containing terms at least as restrictive as those contained herein or (ii) are otherwise bound by a duty of confidentiality to the receiving party at least as restrictive as the terms set forth herein; in any event, the receiving party shall remain liable for any acts or omissions of such persons. The receiving party will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that it promptly notifies the disclosing party in writing of such required disclosure to enable disclosing party to seek a protective order or otherwise prevent or restrict such disclosure and cooperates reasonably with disclosing party in connection therewith. All right, title and interest in and to Confidential Information is and shall remain the sole and exclusive property of the disclosing party.

9. Ownership

9.1. MetalBear Materials. The Service is licensed to you and not sold to you under these Terms. MetalBear (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, the Software and Service, including any software, graphics, photos, sounds, videos, interactive features, trademarks, service marks and logos contained therein; (b) MetalBear Content; (c) MetalBear's Confidential Information; (d) any Feedback (as defined below) and Modifications; (e) any anonymous information, data, reporting, suggestions, analyses, and/or intelligence, which is derived from the use of the solution (i.e., metadata, aggregated, statistics and/or analytics information security findings or discoveries, etc.) which is not personally identifiable information (collectively, "Analytics Information"); and (f) any improvements, derivative works, and/or modifications of/to any of the foregoing, regardless of inventorship or authorship.

You shall make, and hereby irrevocably make, all assignments and/or waivers necessary or reasonably requested by MetalBear to ensure and/or provide MetalBear (and/or its designee(s)) the ownership rights set forth in this Section.

10. Feedback. If MetalBear receives any feedback (e.g., questions, comments, suggestions or the like) regarding the Platform, Service and/or Software (collectively, "Feedback"), all rights, including Intellectual Property Rights in such Feedback and/or Modifications shall belong exclusively to MetalBear (and/or its licensors (as applicable)) and that such shall be considered MetalBear's Confidential Information. You hereby irrevocably, fully and unconditionally transfer and assign to MetalBear all Intellectual Property Rights and remaining rights you have in such Feedback and/or Modifications, without any further step or payment being necessary, and waive any and all moral rights you may have in respect thereto, and the right to assert or take legal action in connection with such rights. It is further understood that use of Feedback and/or Modifications, if any, may be made by MetalBear at its sole discretion, and that MetalBear in no way shall be obliged to make use of any kind of the Feedback and/or Modifications or part thereof.

11. Third Party Components. The Service and/or Software, may use or include third party open source software, APIs, files, libraries or components that may be distributed to you and are subject to third party open source license terms. If there is a conflict between any open source license and these Terms, then the open source license terms shall prevail but solely in connection with the related third party open source software. To the maximum extent permitted by law, MetalBear makes no warranty or indemnity hereunder with respect to any third party open source software.

13. Mutual Warranties. Disclaimers.

13.1. Mutual Warranties. Each party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law.

13.2 EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU ACKNOWLEDGE THAT THE PLATFORM, SERVICE, SOFTWARE THE METALBEAR CONTENT, AND ANY OTHER GOODS AND/OR SERVICE PROVIDED OR MADE AVAILABLE BY METALBEAR HEREUNDER OR RELATED THERETO (COLLECTIVELY, THE "METALBEAR MATERIALS") ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE, OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR REGARDING SECURITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET POSSESSION, NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT, RELIABILITY, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY METALBEAR, ITS SUPPLIERS, AND LICENSORS.  

13.3. TO THE MAXIMUM EXTENT PERMITTED BY LAW, METALBEAR DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION: (A) REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, TIMELINESS, COMPLETENESS, ACCURACY OR QUALITY OF METALBEAR MATERIALS, THE SERVICE OR THE PLATFORM; (B) THAT YOUR USE OF METALBEAR MATERIALS, THE SERVICE OR THE PLATFORM WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; (C) REGARDING THE OPERATION OF ANY NETWORKS, THE PASSING OR TRANSMISSION OF DATA VIA ANY NETWORKS OR CLOUD; OR (D) REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY LAWS, REGULATIONS, OR OTHER GOVERNMENT OR INDUSTRY RULES OR STANDARDS. WE DO NOT WARRANT THAT THE CONTENT AVAILABLE ON, OR GENERATED BY, THE SOFTWARE, PLATFORM OR THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE AND/OR THAT THE SERVICE OR THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL CODE. WE RESERVE THE RIGHT TO MAKE CHANGES IN OR TO THE METALBEAR CONTENT, THE PLATFORM, SOFTWARE AND/OR THE SERVICE, SOFTWARE OR ANY PART THEREOF, WITHOUT GIVING YOU ANY NOTICE PRIOR TO OR AFTER MAKING SUCH CHANGES. METALBEAR WILL NOT BE LIABLE OR OBLIGATED IN RESPECT OF DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO PUBLIC NETWORKS OR HOSTING PROVIDERS.

13.4. YOU HEREBY ACKONWLEDGE THAT THE SERVICE AND SOFTWARE ARE INTENDED TO ASSIST YOU, YOU ARE ADVISED NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE SERVICE AND/OR SOFTWARE. USE OF THE SERVICE, SOFTWARE AND ANY OUTCOMES OF SUCH USE IS ENTIRELY AT YOUR OWN RISK. YOU AGREE THAT WE WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES TO YOU OR ANY THIRD PARTY THAT MAY RESULT FROM YOUR USE OF THE SERVICE AND SOFTWARE AND/OR FOR ANY TECHNICAL PROBLEMS INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET (SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS.

14. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE FULLEST EXTENT PERMISSIBLE BY LAW, IN NO EVENT SHALL METALBEAR, ITS AFFILIATES, OR ANY LICENSOR OR SUPPLIER OF METALBEAR, BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THESE TERMS, FOR: (A) ANY CONSEQUENTIAL, INDIRECT, DIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES; (B) ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF ANTICIPATED SAVINGS, OR WASTED EXPENDITURE; (C) ANY LOSS OF, OR DAMAGE OR INTERRUPTION TO, DATA, NETWORKS, INFORMATION SYSTEMS, REPUTATION, OR GOODWILL; AND/OR (D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICE. TO THE MAXIMUM EXTENT PERMITED BY LAW, THE COMBINED AGGREGATE LIABILITY OF METALBEAR AND ITS AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THESE TERMS, THE PLATFORM, SOFTWARE AND THE SERVICE SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID (IF ANY) BY YOU TO METALBEAR UNDER THESE TERMS IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY. THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF METALBEAR HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THESE TERMS FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION,OR OTHERWISE.

15. Indemnification. To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless MetalBear and its affiliates, and our respective officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including but not limited to attorney's fees) arising from: (i) your use of, or inability to use, the Platform, Software and/or Service (ii) your violation of these Terms; (iii) your violation of any third party right, including without limitation any copyright, property, license or privacy right;

Without derogating from or excusing your obligations under this section, MetalBear reserves the right (at your own expense), but are not under any obligation, to assume the exclusive defense and control of any matter which is subject to an indemnification by you if you choose not to defend or settle it. You agree not to settle any matter subject to an indemnification by you without first obtaining our express approval. MetalBear agrees to defend, indemnify and hold harmless Customer, and its affiliates, and our respective officers, directors, employees and agents, from and against any third party action or suit brought against Customer alleging that the Services, when used as permitted under this Agreement, infringes intellectual property rights of a third party ("IP Infringement Claim"); and MetalBear will pay any damages awarded by court against Customer that are attributable to any such IP Infringement Claim, provided that (i) Customer promptly notifies MetalBear in writing of such claim; and (ii) Customer grants MetalBear the sole authority to handle the defense or settlement of any such claim and provides MetalBear with all reasonable information and assistance in connection therewith, at MetalBear's expense. MetalBear will not be bound by any settlement that Customer enters into without MetalBear's prior written consent.

16. Updates. MetalBear may from time to time and in its discretion provide updates or upgrades to the Platform, software and/or Service (each a "Revision"), but are not under any obligation to do so. Such Revisions will be supplied according to our then-current policies, which may include automatic updating or upgrading without any additional notice to you. You consent to any such automatic updating or upgrading of the Service. All references herein to the Service shall include Revisions. These Terms shall govern any Revisions that replace or supplement the original Service and/or Software unless the Revision is accompanied by a separate license agreement, which will govern the Revision.

17. Term and Termination.  The term of these Terms shall be for the term specified in the applicable Order. Each party may terminate this Agreement immediately upon written notice to the other party if the other party commits a material breach under this Agreement and, if curable, fails to cure that breach within sixty (60) days after receipt of written notice specifying the material breach (except that for payment defaults, such cure period will be seven (7) days). Each party may terminate this Agreement upon written notice to the other party upon the occurrence of any of the following events in respect of such other party: (a) a receiver is appointed for the other party or its property, which appointment is not dismissed within sixty (60) days; (b) the other party makes a general assignment for the benefit of its creditors; (c) the other party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within sixty (60) days; or (d) the other party is liquidating, dissolving or ceasing normal business operations. MetalBear shall not be liable to you or any third party for termination of the Platform, Service, Software or any part thereof. Without derogating from your obligation to pay the applicable fees, if you object to any term or condition of these Terms, or any subsequent modifications thereto, or become dissatisfied with the Platform and/or Service and/or Software in any way, your only recourse is to immediately discontinue your use of the Platform and/or Service and/or Software. Upon termination of these Terms, you shall cease all use of the Platform, Software and Service.

18. Effect of Termination. Upon termination of these Terms, you will lose all access to the Service and/or to the Software, and to any data that we may be storing on your behalf. We reserve the right to permanently delete from our (or our third party service provider's) servers any data that may be contained in your Account at any time following said thirty (30) day period. We do not accept any liability for any termination of the Service or data that is deleted in connection thereto. Sections 1 (Definitions), 6 (Restrictions), 9 (Confidentiality), 10 (Ownership), 14 (Disclaimers), 15 (Limitation of Liability), 16 (Indemnification), 19 (Effect of Termination), 22 (Governing Law and Disputes) and 23 (General), shall survive termination of these Terms.

19. Assignment. The Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you but may be assigned by MetalBear without restriction.Any prohibited assignment shall be null and void. 

20. Modifications. We reserve the right, at our discretion, to change these Terms at any time. Such change will be effective ten (10) days following our sending a notice thereof to you or posting the revised Terms on the Platform, and your continued use of the Service thereafter means that you accept those changes.

21. Governing Law and Disputes. These Terms shall be governed by the laws of the State of Israel, without reference to its conflict of laws rules. The exclusive jurisdiction and venue for all disputes hereunder shall be the courts located in Tel Aviv-Yaffo, and each party hereby irrevocably consents to the jurisdiction of such courts. Notwithstanding the foregoing, MetalBear reserves the right to seek injunctive relief in any court of competent jurisdiction.

22. General. This Agreement represents the complete agreement concerning the Service between you and MetalBear and supersede all prior agreements and representations related to the subject matter hereof. Section headings are provided for convenience only and have no substantive effect on construction. Except for your obligation to pay the fees, neither party shall be liable for any failure to perform due to causes beyond its reasonable control. MetalBear shall not be liable for any failure to perform due to circumstances or causes beyond its reasonable control 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 MetalBear. MetalBear may use your trademarks, service marks, trade names, service names, logos or other brand designations associated with you in any promotional material or other public announcement or disclosure to state that you are a customer of MetalBear. Nothing herein shall be construed to create any employment relationship, partnership, joint venture or agency relationship or to authorize any party to enter into any commitment or agreement binding on the other party. If any provision of this Agreement is held to be unenforceable, the Agreement shall be construed without such provision. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party's right to exercise such right or any other right in the future.  Notices to either party shall be deemed given (a) four (4) business days after being mailed by airmail, postage prepaid, (b) the same business day, if dispatched by facsimile or electronic mail before 13:00 hour (Israel time) and sender receives acknowledgment of receipt, or (c) the next business day, if dispatched by facsimile or electronic mail after the hour 13:00 (Israel time) and sender receives acknowledgment of receipt.

Exhibit A:

SUPPORT AND MAINTENANCE SERVICES

1. Support Level

1. Customer Support and Maintenance Services level is: Premium Support.

2. Updates and Upgrades

During the License Term, Company will make available to Customer such Updates and Upgrades that Company generally makes available to its other supported customers. For the avoidance of doubt, Updates and Upgrades expressly exclude new Software modules, which Company may make available at its sole discretion and will be subject to additional fees.

"Updates" means modifications or revisions to the Software (such as a bug fix or patch), as typically represented by the number to the right of the decimal point (e.g. Version 1.X).

"Upgrades" means new releases (each, a "Release") of the Software (such as the addition of new features or functionalities), as typically represented by the number to the left of the decimal point (e.g. Version X.0)

3. Technical Support

During Business Hours (set forth below), Company's helpdesk personnel shall receive Customer support requests via email or instant messages on Discord in connection with Errors (each, a "Support Request"). "Error" means any verifiable and reproducible failure of the Software to materially perform the functions described in the Software's documentation. Once Company has determined that the Support Request is covered by a valid support contract, Company will:

(A) respond to such Support Request based on the Severity Levels (as determined by Company) set out in the table below; and

(B) Company will use commercially reasonable efforts to get to Problem Resolution or to provide a workaround for the Error.

"Problem Resolution" means the use of commercially reasonable efforts to resolve the reported Error. These efforts may include (but are not limited to): configuration changes, patches that fix an issue, and reinstalling the Software.

In order to be addressed by Company, Errors must be verifiable and reproducible. Furthermore, in order for Company to address a Support Request, Customer must provide Company with all information, documentation, assistance and access as Company might reasonably require, including, without limitation:

• setup information,
• application knowledge,
• listing of any output,
• detailed steps required to enable Company to replicate the Error,
• exact wording of Error messages, and
• any other data that Company may reasonably request in order to reproduce operating conditions similar to those present when the Error occurred.

Each Error for which a Support Request is received by Company, shall receive a first level response within 72 hours, Company and Customer will handle the case during Business Hours to obtain a resolution if applicable.

4. Exclusions

The technical support described above will only be provided with respect to the then-current Release, and shall exclude Errors resulting from:

1. any modifications of the Software that have not been approved by Company in advance and in writing;
2. Customer's failure to implement in a reasonably timely manner any Update or Upgrade made available by Company (or its representative);
3. Customer's written instructions to Company, or installation or set up adjustments made solely by Customer;
4. Customer’s use of the Software in violation of the Agreement or of any applicable laws and/or regulations;
5. any fault in any Customer (or third party) equipment or programs used in conjunction with the Software; and/or
6. Customer’s negligence or willful misconduct.

5. Customer Responsibilities

Furthermore:

1. Customer agrees to receive from Company communications via e-mail, telephone, and other reasonable formats;

2. Customer's technical support contact shall cooperate with Company at all times during the provision of Support and Maintenance Services under this Schedule; and

3. Customer shall report to Company all material problems with the Software and shall implement any reasonable corrective procedures provided by Company reasonably promptly after receipt.