Terms of Service

 

These Terms are hereby incorporated by reference into, and made a part of the Order (defined below). These Terms and the Order are collectively referred to as this “Agreement”. The Agreement constitutes a binding agreement between Ermetic Ltd. (or the other Ermetic entity specified in the Order, if applicable) (“Ermetic”) and the customer specified in the Order (“Customer”), and governs, inter alia, Customer’s access to, and use of, the Platform and receipt of Services (each as defined below). Ermetic and Customer may be collectively referred to herein as the “Parties”, and each individually as a “Party”. To the extent of any conflict or inconsistency between a provision in these Terms and a provision in the Order, the former shall prevail (unless the Order specifically states otherwise). This Agreement commences on the date the Order is executed (the “Effective Date”).

 

1.  SUBSCRIPTION TERMS

1.1  Subscription. Subject to the terms and conditions of this Agreement, Ermetic grants Customer a limited, worldwide, non-exclusive, non-transferable, non-sublicensable right and license to remotely access (i.e. on a SaaS basis) and/or use Ermetic’s cloud security platform (“Platform”) in object code form, during the corresponding Subscription Term (as defined below), solely for Customer’s internal business purposes (the “Subscription”). The Subscription shall be limited to the quantity of data and compute resources (“Resources”) as set forth in a valid order executed by the Parties (the “Order”). Unless otherwise indicated, the term “Platform” also includes all revisions, improvements and/or updates and any appliance, user manuals and documentation provided to Customer in connection with the operation of the Platform (“Documentation”).

1.2  Services. Support and maintenance services are provided according to Ermetic’s Service Level Agreement made available on Ermetic’s website at https://ermetic.com/support-and-maintenance-enterprise-sla/ (“SLA”). The Platform, SLA and any related services provided to Customer and detailed in an Order shall be referred to as the “Services”.

1.3. Additional Purchases. In the event Customer wishes, and Ermetic agrees in writing, to purchase additional Resources (“Additional Resources”), the Additional Resources shall be coterminous in time with the Subscription Term, and the initial Subscription Fees for the Additional Resources shall be pro-rated accordingly and invoiced to the Customer.

1.4. Excess Usage. Ermetic shall, on a monthly basis, review Customer’s average total usage of Resources and whether such usage exceeds the scope set forth in the Order (“Usage Review”). If a Usage Review reveals a rolling 3-month average usage that exceeds 10% the consumption level of the scope specified in the Order, the Subscription Fees will be increased in accordance with the price per Resource specified in the corresponding Order, and Ermetic will invoice Customer for the incremental Subscription Fees on a pro rata basis for the remainder of the Subscription Term.

1.5  Permitted Users. The Platform may be accessed solely by Customer’s employees or service providers who are explicitly authorized by Customer to use the Platform (each, a “Permitted User”). Customer will ensure that the Permitted Users comply with the terms of this Agreement at all times; and shall be fully responsible for any breach of this Agreement by a Permitted User. Unauthorized access or use of the Platform must be immediately reported to Ermetic.

1.6  Prohibited Uses. Except as specifically permitted herein, without the prior written consent of Ermetic, Customer must not, and shall not allow any Permitted User or any third party to, directly or indirectly: (i) copy, modify, create derivative works of or distribute any part of the Platform (including by incorporation into its products); (ii) sell, license (or sub-license), lease, assign, transfer, pledge, or share Customer’s rights under this Agreement with any third party; (iii) use any “open source” or “copyleft software” in a manner that would require Ermetic to disclose the source code of the Platform to any third party; (iv) disclose the results of any testing or benchmarking of the Platform to any third party; (v) disassemble, decompile, reverse engineer or attempt to discover the Platform’s source code or underlying algorithms; (vi) use the Platform in a manner that violates or infringes any rights of any third party; (vii) remove or alter any trademarks or other proprietary notices related to the Platform; (viii) circumvent, disable or otherwise interfere with security-related features of the Platform or features that enforce use limitations; (ix) export, make available or use the Platform in any manner prohibited by applicable laws (including without limitation export control laws); and/or (x) transmit any malicious code (i.e., software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system) or other unlawful material in connection with the Platform.

 

2.  PAYMENT

2.1  If Customer has purchased the Services directly from Ermetic this Section ‎‎2 shall apply.

2.2  Subscription Fees. Customer shall pay Ermetic the Subscription fees specified in the Order (the “Subscription Fees“).

2.3 General. Unless expressly stated otherwise in the Order: (a) all Subscription Fees are stated, and are to be paid, in US Dollars; (b) all payments under this Agreement are non-refundable, and are without any right of set-off or cancellation; (c) all Subscription 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.

2.4  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 Ermetic’s net income. Customer must provide a valid tax exemption certificate if claiming a tax exemption. 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 Ermetic shall be increased by the amount necessary so that Ermetic receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received if Customer not made any such withholding or deduction.

 

3.  PURCHASES VIA CHANNEL PARTNERS

If Customer is purchasing the Subscription and/or any Services through a partner, reseller or distributor authorized by Ermetic (a “Channel Partner”), then:

(a)  the “Order” shall be the order issued by the Channel Partner to Ermetic, agreed in writing by
Ermetic (the “Ermetic-Channel Partner Order”), and the “Subscription Scope” shall be determined with reference to the Ermetic-Channel Partner Order, and Ermetic shall have no responsibility or liability for any discrepancy between the Subscription Scope under such Ermetic-Channel Partner Order on the one hand, and the order issued by Customer to Channel Partner (the “Customer-Channel Partner Order”) on the other hand;

(b)  instead of paying Ermetic, Customer will pay the applicable amounts to the Channel Partner, as agreed between Customer and the Channel Partner;

(c)  Ermetic may suspend or terminate the Subscription and/or the Services if Ermetic does not receive payment from the Channel Partner, as a result of Customer not paying the corresponding amount to the Channel Partner;

(d)  if Customer is entitled to a refund under the terms and conditions of this Agreement, then, unless Ermetic specifies otherwise, Ermetic will refund any applicable fees to the Channel Partner (and under no circumstances shall Ermetic be required to refund more than it received from the Channel Partner), and the Channel Partner alone will be responsible for refunding the appropriate amounts to Customer; and

(e)  the Channel Partner is not authorized to make any promises or commitments on Ermetic’s behalf, and Ermetic is not bound by any obligations to Customer other than as set forth in this Agreement.

 

4.  OWNERSHIP

4.1  Ermetic Materials. Ermetic (and/or its licensors, 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 intellectual property (such as content appearing therein); (b) any feedback, suggestions, or ideas for or about the Platform (collectively, “Feedback“); and (c) any and all improvements, derivative works, and/or modifications of/to any of the foregoing.

4.2  Customer Data. Through Ermetic’s provision of the Services, Ermetic may have access to certain data or information submitted or uploaded to, or transmitted through, the Platform, or otherwise provided or made available to Ermetic, by or on behalf of Customer (“Customer Data”). As between the Parties, Customer is, and shall be, the sole and exclusive owner of the Customer Data. Customer represents that to the extent the Customer Data includes any personally identifiable information, Customer has provided all appropriate notices, received the required consents or permits and/or have any and all ongoing legal bases, and has acted in compliance with applicable privacy laws and regulations, as to allow Ermetic to use the Customer Data solely in order to perform the Services. Ermetic may however be required to disclose the Customer Data: (a) to satisfy any applicable law, regulation, legal process, subpoena or governmental request; or (b) to collect, hold and/or manage the Customer Data through Ermetic’s authorized third party service providers as reasonable for the applicable business purposes. To the extent Customer requires a data processing addendum, the Parties shall comply with Ermetic’s data processing addendum.

5.  CONFIDENTIALITY

Each Party and/or its affiliates (the “Recipient“) may have access to certain non-public or proprietary information and materials of the other Party and/or its affiliates (the “Discloser“), whether in tangible or intangible form (“Confidential Information“). Confidential Information includes, without limitation: (a) any information related to Discloser’s business, such as cost data, pricing methodologies, price lists, business plans and opportunities, marketing plans, financial and accounting information, forecasts and valuations, market share data, sales volumes, discounts, and budgets; (b) information relating to actual or potential customers, suppliers, products and services; and (c) technical data, computer programs and software code (including firmware and source code), ideas, inventions, algorithms, know-how, analyses, specifications, processes, techniques, formulas, designs and drawings, architectures, and other technology and intellectual property. Customer acknowledges that the Platform embodies Confidential Information of Ermetic. Confidential Information shall not include information and material which: (a) at the time of disclosure by Discloser to Recipient hereunder, is in the public domain; (b) after disclosure by Discloser to Recipient hereunder, becomes part of the public domain through no fault of the Recipient; (c) was rightfully in the Recipient’s possession at the time of disclosure by the Discloser hereunder, and which is not subject to prior continuing obligations of confidentiality; (d) is rightfully disclosed to the Recipient by a third party having the lawful right to do so; or (e) independently developed by the Recipient without use of, or reliance upon, Confidential Information received from the Discloser. The Recipient shall not disclose or make available the Discloser’s Confidential Information to any third party (including without limitation by way of publishing), except to its employees, contractors, advisers, agents and investors, subject to substantially similar written confidentiality undertakings). Recipient shall take commercially reasonable measures, at a level at least as protective as those taken to protect its own Confidential Information of like nature (but in no event less than a reasonable level), to protect the Discloser’s Confidential Information within its possession or control, from disclosure to a third party. The Recipient shall use the Discloser’s Confidential Information solely for the purposes expressly permitted under this Agreement. In the event that Recipient is required to disclose Confidential Information of the Discloser pursuant to any law, regulation, or governmental or judicial order, the Recipient will (a) promptly notify Discloser in writing of such law, regulation or order, (b) reasonably cooperate with Discloser in opposing such disclosure, (c) only disclose to the extent required by such law, regulation or order (as the case may be). Upon termination or expiration of this Agreement, or otherwise upon written request by the Discloser, the Recipient shall promptly return to Discloser its Confidential Information (or if embodied electronically, permanently erase it), and certify compliance writing.

Notwithstanding anything in this Agreement to the contrary, the pricing and payment terms under the Order are confidential to Ermetic, and Customer shall not disclose such Confidential Information to any third party (except to its accountants, lawyers, and potential investors), without Ermetic’s prior express written consent.

 

6.  PERFORMANCE WARRANTY

Ermetic warrants to the Customer that the Platform shall operate substantially in accordance with the material functions and features set out in the applicable Documentation (the “Warranty“). The Customer’s sole and exclusive remedy and Ermetic’s sole liability for breach of this warranty, Ermetic shall use commercially reasonable efforts to repair the Platform and, if Ermetic cannot do so within a reasonable time, not to exceed 30 days, Customer may terminate this Agreement and receive a pro-rata refund of any amounts pre-paid by Customer for the remaining unused period of the Subscription Term. The warranty set forth shall not apply if the failure of the Platform results from or is otherwise attributable to: (i) repair, maintenance or modification of the Platform by persons other than Ermetic or its authorized contractors; (ii) accident, negligence, abuse or misuse of the Platform by Customer or its Permitted Users; (iii) use of the Platform other than in accordance with the Platform’s Documentation; and/or (iv) the combination of the Platform with equipment or software not authorized or provided by Ermetic. Ermetic shall not be liable for any inaccuracy in the Service’s output and/or delay and/or unavailability of the Services, caused due to (a) failure of Customer’s Internet access or any public telecommunications network, shortage of adequate power or transportation facilities, (b) any incompatibility between the Customer’s systems and the Platform appliance and/or (c) maintenance within the Customer’s systems affecting the operation of the Platform.

 

7.  DISCLAIMERS

EXCEPT AS OTHERWISE EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM, ITS RELATED SERVICES AND ANY OUTPUT RESULTED FROM THE USE OF THE PLATFORM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ALL EXPRESS, IMPLIED AND STATUTORY CONDITIONS AND WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION, NON-INFRINGEMENT, OR QUALITY OF SERVICE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE) ARE HEREBY DISCLAIMED BY ERMETIC AND ITS LICENSORS.

 

8. LIMITATION OF LIABILITY

8.1  EXCEPT FOR BREACHES OF CONFIDENTIALITY UNDER SECTION 5 (CONFIDENTIALITY), ERMETIC’S INDEMNIFICATION OBLIGATIONS UNDER SECTION ‎‎9, AND/OR LIABILITY ARISING FROM EITHER PARTY’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES.

8.2.  EXCEPT FOR BREACHES OF CONFIDENTIALITY UNDER SECTION ‎‎5 (CONFIDENTIALITY), ERMETIC’S INDEMNIFICATION OBLIGATIONS UNDER SECTION ‎‎9, AND/OR LIABILITY ARISING FROM EITHER PARTY’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT, THE COMBINED AGGREGATE LIABILITY OF EITHER PARTY, ITS AFFILIATES, OR LICENSORS UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO ERMETIC UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.

8.3  THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT 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.

 

9.  INDEMNIFICATION

9.1  Ermetic agrees to defend, at its expense, any third party action or suit brought against the Customer alleging that the Platform, when used as permitted under this Agreement, infringes intellectual property rights of a third party (“Infringement Claim”); and Ermetic will pay any damages awarded in a final judgment against the Customer that are attributable to any Infringement Claim, or that are otherwise agreed in a settlement with the prior written consent of Ermetic, provided that (i) the Customer promptly notifies Ermetic in writing of such claim; (ii) the Customer grants Ermetic the sole authority to handle the defense or settlement of any such claim and provides Ermetic with all reasonable information and assistance, at Ermetic’s expense; and (iii) Customer refrains from admitting any liability or otherwise compromising the defense in whole or in part, without the express prior written consent of Ermetic. Ermetic will not be bound by any settlement that the Customer enters into without Ermetic’s prior written consent.

9.2  Notwithstanding the foregoing, Ermetic will have no liability under this Section (Indemnification) to the extent that the Infringement Claim is based on or results from: (i) modifications to the Platform made by a party other than Ermetic; (ii) the Customer’s failure to implement software updates provided by Ermetic specifically to avoid infringement; or (iii) combination or use of the Platform with equipment, devices or software not supplied by Ermetic or not in accordance with the Documentation.

9.3  Should the Platform (in whole or in part) become, or in Ermetic’s opinion be likely to become, the subject of an Infringement Claim, then Customer permits Ermetic, at Ermetic ‘s option and expense, to either: (x) obtain for Customer the right to continue using the Platform (or part thereof); or (y) replace or modify the Platform (or part thereof) so that it’s use hereunder becomes non-infringing; provided, however, that if (x) and (y) are not, in Ermetic’s opinion, commercially feasible, Ermetic may terminate this Agreement upon written notice to Customer and Customer shall be entitled to receive a pro-rated refund of any prepaid Subscription Fees hereunder based remaining period of the then-current Subscription Term.

9.4  This Section represents Ermetic’s sole obligation and liability, and Customer’s sole remedy, for any Infringement Claim.

 

10.  TERM AND TERMINATION

10.1  Term. This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue in full force and effect for the duration of specified in the Order Form (“Initial Subscription Term“).

Upon expiration of the Initial Subscription Term, the Initial Subscription Term shall automatically renew for successive periods of equal length, unless terminated earlier as set forth herein and/or either Party provides the other Party with at least a sixty (60) ‘days’ prior written notice of non-renewal, and following the Initial Subscription Term of a Customer-Channel Partner Order Form, such Customer-Channel Partner Order Form shall be extended only if agreed to be extended between the Channel Partner and the Customer (each a “Renewal Subscription Term” (if applicable), and together with the Initial Subscription Term, the “Subscription Term”). The Subscription Fees will be automatically increased for each Renewal Subscription Term by the higher of: (i) five percent (5%) or (ii) the increase in the Consumer Price Index (CPI).

10.2  Termination for Breach. 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).

10.3  Termination for Bankruptcy. 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.

10.4  Effect of Termination; Survival. Upon termination of this Agreement for any reason: (a) the Subscription shall automatically terminate; (b) Customer shall cease all access and use of the Platform; and (c) Customer shall pay any outstanding Fees and other charges that accrued as of termination, which become immediately due and payable, and, if necessary Ermetic shall issue a final invoice therefor. Sections 4 (Ownership) through ‎‎11 (Miscellaneous) (but excluding ‎6 (Performance Warranty)) shall survive termination of this Agreement, as shall any right, obligation or provision that is expressly stated to so survive or that ought by its nature to survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.

 

11.  MISCELLANEOUS

11.1  Entire Agreement and Amendments. This Agreement represents the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the Parties with respect to such subject matter. Without limiting the generality of the foregoing, this Agreement supersedes any terms or conditions (whether printed, hyperlinked, or otherwise) in any Customer’s purchase order or other standardized business forms, which purport to supersede, modify or supplement this Agreement. This Agreement may only be modified or supplemented by a written instrument duly signed by each Party. The section and subsection headings used in this Agreement are for convenience of reading only. This Agreement may be executed in any number of counterparts (including digitally, electronically scanned and e- mailed PDF copies, and any similarly signed and electronically or digitally transmitted copies) each of which will be considered an original, but all of which together will constitute one and the same instrument.

11.2  Assignment. This Agreement may not be assigned by either Party, in whole or in part, without the other Party’s prior express written consent; except that this Agreement may be assigned by either Party in connection with a merger, consolidation, sale of all of the equity interests of the Party, or a sale of all or substantially all of the assets of the Party to which this Agreement relates. Subject to the provisions of this Section (Assignment), this Agreement will bind and benefit each Party and its respective successors and assigns.

11.3  Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, USA 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 New York County, New York, USA 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.

11.4  Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such provision will be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such illegality, invalidity or unenforceability), and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.

11.5  Publicity. Customer hereby agrees that Ermetic may use Customer’s name and logo to identify Customer as a customer of Ermetic, on Ermetic’s web site, presentations, marketing materials or otherwise.

11.6  Waiver and Remedies. No failure or delay on the part of either Party in exercising any right or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof, or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing, duly signed by the waiving Party, and will be valid only in the specific instance in which given. Except as may be expressly provided otherwise in this Agreement, no right or remedy conferred upon or reserved by either Party under this Agreement is intended to be, or will be deemed, exclusive of any other right or remedy under this Agreement, at law, or in equity, but will be cumulative of such other rights and remedies.

11.7  Relationship. The relationship of the Parties is solely that of independent contractors, neither Party nor its employees are the servants, agents, or employees of the other, and no exclusivities arise out of this Agreement. Nothing in this Agreement shall be construed to create a relationship of employer and employee, principal and agent, joint venture, partnership, association, or otherwise between the Parties. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party and neither Party will create or attempt to create any obligation, express or implied, on behalf of the other Party.

11.8  Force Majeure. If any performance (excluding payment obligations) under this Agreement by either Party is prevented, hindered, or delayed by reason of an event of Force Majeure (defined below), the Party so affected shall be excused from such performance to the extent that, and for so long as, performance is prevented, interrupted, or delayed thereby, provided that such Party so affected shall promptly notify the other Party of the occurrence of such event. If and when performance is resumed, all dates specified in this Agreement shall be automatically adjusted to reflect the period of such prevention, interruption, or delay by reason of such event of Force Majeure. For purposes of this Agreement, an event of “Force Majeure” shall be defined as: (a) fire, flood, earthquake, explosion, pandemic or epidemic (or similar regional health crisis), or act of God; (b) strikes, lockouts, picketing, concerted labor action, work stoppages, other labor or industrial disturbances, or shortages of materials or equipment, not the fault of either Party; (c) invasion, war (declared or undeclared), terrorism, riot, or civil commotion; (d) an act of governmental or quasi-governmental authorities; (e) failure of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, shortage of adequate power or transportation facilities; and/or (f) any matter beyond the reasonable control of the affected Party. Notwithstanding the foregoing, Customer shall not be entitled to use, or rely on, this Section (Force Majeure) in connection with any Customer breach of Section 1.6 (Prohibited Uses) and/or Ermetic’s intellectual property rights. For the avoidance of doubt, any problems relating to hosting of the Platform by a third party is beyond the reasonable control of Ermetic.

11.9  Notices. All notices or other communications provided for in connection with this Agreement shall be in writing and shall be given in person, by courier, by facsimile, email, or by registered or certified mail, postage prepaid, addressed as set forth in the Order. All notices and other communications delivered in person or by courier service shall be deemed to have been given as of one business day after sending thereof, those given by facsimile transmission with confirmation or receipt shall be deemed to have been given as of the date of transmission thereof (provided that such date is a business day in the country of receipt and if not, the next business day), and all notices and other communications sent by registered mail shall be deemed given three (3) days after posting. Notices sent by email shall be deemed received upon receipt of such email.