This DevOps Services Agreement (the “Agreement”) apply to the engagement between Profisea Ltd. (“Service Provider”) and the individual or entity identified in any relevant purchase order/quotation referencing this Agreement (the “Customer” and the “Quotation”, respectively). The terms of the Quotation are hereby incorporated by reference and form an integral part of this Agreement. The Company and the Customer shall each be referred to as a “Party” and together as the “Parties”.
1. Definitions
1.1. “Customer Intellectual Property” means any Intellectual Property Rights (as defined below) which are provided by the Customer to the Service Provider or otherwise made accessible by the Customer to the Service Provider for the purpose of providing the Services.
1.2. “Deliverables” means (A) the work product, materials, designs, improvements, information, drawings, reports, developments, technology, specifications, works of authorship, documents, documentation, models, software and scripts, and any modification and enhancement of the foregoing, including any and all Intellectual Property Rights in, arising out of or associated therewith (all whether or not patentable or registerable), that result from, or are suggested, created, developed, conceived, reduced to practice, discovered, invented or made by the Service Provider and which (1) result from the Services, or (2) are made or conceived using Customer’s funds, facilities, equipment, materials, Confidential Information (as such term is defined below), personnel, or other resources; and (B) Service Provider Intellectual Property, including Generic Materials.
1.3. “Intellectual Property Rights” means any and all intellectual property rights, including without limitation (i) patents and patent applications, including all reissues, renewals, extensions, continuations, divisionals, and continuations-in-part thereof; (ii) copyrights, copyright registrations and applications therefore and all other rights corresponding thereto throughout the world; (iii) mask works, mask work registrations and applications therefore, and any equivalent or similar rights in semiconductor masks, layouts, architectures or topology; (iv) industrial designs throughout the world, including all rights associated with trademarks, service marks, trade names, trade dress, domain names, logos and similar rights, and the goodwill associated therewith,; (v) all rights in databases and data collections throughout the world; (vi) any similar, corresponding or equivalent rights to any of the foregoing anywhere in the world, whether registered or unregistered, including without limitation, the right to seek remedies against infringements thereof and rights of protection of an interest therein under the laws of all jurisdictions.
1.4. “Services” means those services detailed in the Quotation.
1.5. “Service Provider Intellectual Property” means (1) any materials, discoveries, inventions, designs, finding, discoveries, inventions, methodologies, improvements, know-how, information, drawings, reports, developments, procedures, processes, technology, devices, specifications, works of authorship, documents, documentation, models, software (including source and object code), and any modification and enhancement of the foregoing, including any and all Intellectual Property Rights in, arising out of or associated therewith (all whether or not patentable or registerable), made, conceived, developed, reduced to practice, learned, or coming into the control of the Service Provider, either alone or jointly with others (a) prior to the execution of this Agreement; or (b) during the Term but outside the scope of the Services; and (2) Generic Materials.
1.6. “Generic Materials” means any general, reusable, or generic components, scripts, libraries, technologies, know-how, ideas or tools, which do not include any Confidential Information (as defined below), and all Intellectual Property Rights related thereto, including such that are made, conceived, developed, reduced to practice, learned, or coming into the control of the Service Provider in connection with the Services.
1.7. “Term” shall have the meaning ascribed to it in Section 7.
1.8. “Third Party Materials” means any Intellectual Property which is not the sole property of the Service Provider or Customer, including third party open source software.
2. Scope of this Agreement; the Services
2.1 The Service Provider shall provide to the Customer those services detailed in the Quotation and in any additional Quotations mutually executed by the Parties in writing from time to time during the Term which explicitly references this Agreement, all of which are incorporated herein by reference and form an integral part hereof. Provision of the Services is subject to any limitations and conditions set forth in the Quotation. Any change in the scope of Services, requires the execution on an additional Quotation.
2.2 Where explicitly stated in the Quotation that a specific individual shall personally provide the Services to the Customer on behalf of the Service Provider (the “DevOps Engineer”), the Service Provider may, permanently or temporarily and at its sole discretion, replace such DevOps Engineer with another individual possessing substantially equivalent qualifications. In the event that the Customer rejects a proposed DevOps Engineer for reasonable and justifiable grounds, the Service Provider shall use commercially reasonable efforts to accommodate such request; however, the Service Provider does not guarantee that a replacement will always be possible. Unless otherwise mutually agreed upon in writing by the Service Provider and the Customer, a full-time position (monthly retainer) for a DevOps Engineer shall consist of five (5) working days per week, with each day comprising eight (8) hours, exclusive of sick days, holidays, and mutually coordinated annual leave days. Any part-time position shall be construed proportionally to such full-time schedule.
2.3 The Customer acknowledges that the timely and proper performance of the Services depends on the Customer’s prompt cooperation, including but not limited to providing Customer Intellectual Property, access to relevant computer systems, hardware equipment, source code, cloud accounts and other necessary information, and Customer’s licensing of the chosen third-party tools. The Service Provider shall not be liable for any delay or failure to perform the Services resulting from the Customer’s failure to meet these obligations. In the event of such delays, any affected deadlines shall be automatically extended by a period equal to the length of the delay, without penalty to the Service Provider. The Service Provider shall promptly notify the Customer of any anticipated delays resulting from the Customer’s lack of cooperation, and the Parties shall work in good faith to resolve any such issues.
3. Consideration
3.1. In consideration for the provision of the Services, the Customer shall pay the Service Provider the fees set forth in the applicable Quotation (the “Fees”). All Fees paid hereunder by the Customer are non-refundable. In case the Services are provided in a “hourly” model, the Fees will be calculated based on the actual hours performed by the Services Provider; in case the Services are provided on a “fixed” model (e.g., monthly retainer, fixed project) the Fees will be paid comprised of the full fixed amounts specified therein.
3.2. Unless otherwise specified in the applicable Quotation, the Fees shall be paid within thirty (30) days following the date of the applicable invoice. All payments shall be made via wire transfer to the Service Provider’s designated bank account. The Service Provider reserves the right to suspend or terminate any and all Services until payment is received for past due invoices. Any payment made after the due date under the terms and conditions of this Agreement shall bear interest at the monthly rate of one and one-half percent (1.5%) commencing on the day after the payment was due. Such interest shall continue to accrue until payment is made in full, at a rate equal to the highest interest rate permitted by applicable law at such time.
3.3. The Fees are exclusive of all sales, use, value-added, withholding, and other direct or indirect taxes, charges, levies, and duties. All taxes, withholdings, and duties of any kind payable hereunder, other than taxes based on Service Provider’s net income, shall be borne and paid by the Customer.
3.4. The Customer agrees to reimburse the Service Provider for all pre-approved, documented out-of-pocket expenses incurred by the Service Provider in connection with the performance of the Services.
4. Representations and Warranties
4.1. The Service Provider represents and warrants: (i) the execution and delivery of this Agreement and the fulfillment of its terms will not constitute a default under or breach of any agreement to which the Service Provider is a party or by which it is bound; (ii) the Services will be performed in a professional, diligent, careful, and workmanlike manner; and (iii) the Deliverables do not infringe upon any third-party Intellectual Property Rights, provided that the Service Provider shall have no responsibility for any breach of this warranty resulting from or based on: (a) Confidential Information or Customer Intellectual Property; (b) instructions received from the Customer; (c) modifications to the Deliverables made by any party other than the Service Provider; (d) the Customer’s failure to use updated or modified versions or patches provided by the Service Provider specifically to avoid such infringement; or (e) the combination or use of the Deliverable with equipment, devices or software not supplied by the Service Provider.
4.2. The Customer represents and warrants: (i) the execution and delivery of this Agreement and the fulfillment of its terms will not constitute a default under or breach of or any agreement to which the Customer is a party or by which it is bound; (ii) it will provide the Service Provider with timely access to any necessary systems, networks, and resources required for the provision of Services; and (iii) it owns or has the necessary rights, licenses, and permissions to grant the Service Provider the right to use the Customer Intellectual Property for the provision of Services, and the Customer Intellectual Property do not infringe upon any third-party Intellectual Property Rights.
5. Intellectual Property Rights
5.1. As between the Parties, the Customer is, and shall remain at all times, the sole owner of the Customer Intellectual Property. The Customer hereby grants to the Service Provider a limited, non-exclusive, royalty free, non-sublicensable and non-transferable right and license to use the Customer Intellectual Property for the purpose of performing the Services.
5.2. Subject to the Customer’s payment of all Fees due hereunder, the Customer shall be the sole owner of Deliverables (excluding any Third-Party Materials, Service Provider Intellectual Party and Generic Materials, which may be embedded therein) and the Service Provider hereby irrevocably and unconditionally assigns and agrees to assign in the future, to the Customer, without any additional consideration, all rights including without limitation Intellectual Property Rights with respect to any and all Deliverables (excluding any Third-Party Materials, Service Provider Intellectual Party and Generic Materials, which may be embedded therein). The Service Provider also hereby waives and agrees never to assert any and all moral rights which the Service Provider may have with respect to any Deliverable.
5.3. The Service Provider may, in its discretion, embed or incorporate into the Deliverables certain Third Party Materials owned or licensed by third parties, including but not limited to open source software, subject to the terms and conditions set forth herein. The Service Provider hereby represents and warrants that: (a) it shall obtain and maintain all necessary licenses, permissions, and authorizations required for the use, incorporation, and distribution of any Third Party Materials within the Deliverables; and (b) its use and incorporation of Third Party Materials shall comply with all applicable license terms and conditions governing such Third Party Materials. The Service Provider warrants and covenants that the incorporation of Third Party Materials, into the Deliverables shall not subject the Customer’s Intellectual Property to any open source or similar license terms that would require the Customer to disclose, distribute, or license its proprietary software or related intellectual property to third parties, or otherwise limit or restrict the Customer’s rights to use, modify, distribute, or otherwise exploit its own intellectual property in any manner. Use by the Customer of Third Party Materials is subject to their respective terms and conditions.
5.4. Subject to the full payment of all Fees due hereunder, the Service Provider hereby grants Customer a non-exclusive and perpetual right to use and modify the Service Provider Intellectual Property embedded into the Deliverables, solely in connection with Customer’s exploitation of the relevant Deliverable (however not on a stand-alone basis).
5.5. As between the Parties, all right, title and interest in all such Third-Party Materials and/or Service Provider Intellectual Property, including Generic Materials, are and shall remain the sole property of the Service Provider and/or its licensors.
5.6. If Customer contacts Service Provider with feedback data (e.g., questions, comments, suggestions or the like) regarding the Services and/or the Deliverables (collectively, “Feedback”), the Service Provider and its affiliates shall have a non-exclusive, royalty-free, worldwide, perpetual license to use or incorporate such Feedback into the any Service Provider’s or its affiliates’ current or future products or services, without the Customer’s approval and without further compensation to the Customer, and the Customer irrevocably waives on behalf of its personnel any moral rights they may have with respect to such Feedback.
6. Confidential Information
6.1 For the purposes of this Agreement, “Confidential Information” refers to any non-public and proprietary information, data and materials, disclosed by the Customer to the Service Provider hereunder that is marked or identified as confidential or that reasonably should be understood to be confidential given the nature of the information, excluding: (i) information already known to the Service Provider prior to disclosure by the Customer; (ii) information independently developed by the Service Provider without use of or reference to the Confidential Information; (iii) information rightfully obtained by the Service Provider from a third party without breach of any confidentiality obligation; (iv) information that is required to be disclosed by law, regulation, court order, or government authority; (v) information that is or becomes publicly available without breach of this Section 6 by the Service Provider; and (vi) Feedback.
6.2 The Service Provider agrees not to make any use or disclosure of the Confidential Information, except for the purpose of its performance of this Agreement or as required under applicable law. The Service Provider agrees to take reasonable measures to protect the confidentiality and integrity of the Confidential Information and to inform the Customer without undue delay upon any unauthorized use of the Confidential Information it becomes aware of. The obligations of confidentiality shall remain in effect during the term of the applicable Quotation and for a period of five (5) years thereafter, unless otherwise agreed in writing by the Parties.
6.3 The Service Provider may use in its business activities any ideas, concepts and know-how learned in the course of performing the Services, as well as those ideas, concepts and know-how contained in the Confidential Information which, without further reference to any materials that are written, stored in electronic or physical form or are otherwise fixed, are unintentionally retained in the unaided memories of Service Provider’s personnel who have had authorized access to the Customer’s Confidential Information under this Agreement. A person’s memory will be considered to be unaided if the person has not intentionally memorized the Confidential Information for the purpose of retaining and subsequently using or disclosing it.
7. Term and Termination
7.1 This Agreement shall come into effect on the Effective Date and shall remain in full force and effect until: (a) it is terminated by either Party in accordance with Section 7; or (b) all Quotations have expired or have been terminated, and there are no Quotations in effect (the “Term”).
7.2 Each Quotation shall commence on the effective date set forth therein and shall remain in full force and effect until the expiration of the relevant period or the completion of the relevant project, as specified therein, unless terminated earlier by a Party in accordance with its termination rights explicitly granted under this Section 7 and/or under the Quotation (if any), which are cumulative. Unless explicitly stated otherwise in the Quotation, each Quotation with a specified period shall automatically renew for consecutive periods equal to the initial period set forth therein (if any) unless either Party provides the other Party with written notice of non-renewal at least thirty (30) days prior to the expiration of the initial term or any subsequent renewal term of the Quotation.
7.3 Each Party may terminate this Agreement or any Quotation immediately, upon of the occurrence of any of the following events: (i) any material breach of this Agreement by the other Party which has not been cured following fourteen (14) days from having written notice thereof (and seven (7) days in case of non-payment by the Customer); or (ii) the other Party becomes liquidated, dissolved, bankrupt or insolvent, whether voluntarily or involuntarily, or shall take any action to be so declared.
7.4 The Service Provider may terminate this Agreement and/or any Quotation by providing thirty (30) days’ prior written notice to the Customer. However, in the event that the Service Provider provides Services through a dedicated DevOps Engineer and he/she resigns, becomes ill, incapacitated, or otherwise unavailable, and the Service Provider, after reasonable efforts, fails to secure a suitable replacement, the Service Provider may provide less than thirty (30) days’ notice. Upon any termination pursuant to this Section 7.4, the Service Provider shall provide a pro rata refund of any prepaid fees for Services not rendered. This termination shall be without penalty or additional liability to the Service Provider.
7.5 Upon the termination or expiration of any Quotation, all Fees owed to Customer for Services provided prior to such termination of expiration shall be immediately due and paid to the Service Provider (where necessary, calculated on a pro rata basis), except where the Quotation is terminated by the Service Provider pursuant to Section 7.3, in which event the Customer shall immediately pay all Fees payable to Customer under such Quotation regardless of whether the Services have been consumed in full.
7.6 Upon termination of this Agreement: (i) all existing Quotations shall automatically terminate, unless mutually agreed otherwise by the Parties in writing; and (ii) the provisions of this Agreement which by their nature intend to survive such termination, shall survive termination for any reason.
8. Limitation of Liability; Disclaimers.
8.1 EXCEPT AS EXPLICITLY PROVIDED HEREUNDER, THE SERVICES AND THE DELIVERABLES ARE PROVIDED ON AN “AS-IS” BASIS AND THE SERVICE PROVIDER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THIS AGREEMENT AND/OR SERVICES AND/OR THE DELIVERABLES AND HEREBY DISCLAIMS, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, WITH RESPECT THERETO, TO THE FULLEST EXTENT PERMITTED BY LAW.
8.2 WITHOUT DEROGATING FROM THE FOREGOING, AND TO THE EXTENT PERMITTED BY LAW, SERVICE PROVIDER DISCLAIMS ALL LIABILITIES (INCLUDING DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES) WITH RESPECT TO THIRD PARTY MATERIALS, AND ALL SUCH THIRD PARTY MATERIALS ARE SUBJECT TO THEIR RESPECTIVE LICENSE TERMS AND ARE PROVIDED BY SERVICE PROVIDER ON AN “AS IS BASIS”, AND SERVICE PROVIDER HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND OTHER TERMS AND CONDITIONS WITH REGARD TO SUCH THIRD PARTY MATERIALS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ALL WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
8.3 TO THE MAXIMUM EXTENT PERMITTED BY LAW, SERVICE PROVIDER WILL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND INCURRED BY CUSTOMER OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF THE SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.4 IN ANY CASE, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, THE SERVICE PROVIDER’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY FOR ALL DAMAGES OR LOSSES WHATSOEVER ARISING HEREUNDER OR IN CONNECTION WITH THE SERVICES AND/OR ANY DELIVERABLE PROVIDED HEREUNDER OR CUSTOMER’S USE OR INABILITY TO USE THE PROGRAM, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THE APPLICABLE QUOTATION DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. INASMUCH AS SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OR LIMITATIONS AS SET FORTH HEREIN, THE FULL EXTENT OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY.
9. Parties Relationship. Nothing in this Agreement shall be construed to create an employer-employee relationship between the Customer and the Service Provider, nor shall it establish any agency, joint venture, or partnership between the Parties. Each party acknowledges and agrees that they are independent contractors and shall act solely as such in performing their respective obligations under this Agreement. Neither Party shall have authority to bind the other Party or incur any obligations on behalf of the other Party without prior written consent of such Party.
10. Force Majeure. Neither Party shall be responsible for any delay (whether material or not) in performance or failure to perform or comply with the terms of this Agreement due to any occurrence commonly known as force majeure, including, without limitation, acts of God, any governmental body (de jure or de facto) or public enemy, riots, embargoes, strikes, epidemics or other concerted acts of workmen (of either party’s or others), casualties or accidents, deliveries or transportation and shortages of cars, fuel, power, labor or materials, or any other causes beyond control, which prevent or hinder the ability to perform the Parties’ obligations hereunder.
11. General
11.1 Entire Agreement; Modifications. This Agreement and the Quotations contains the entire agreement between the Parties concerning the Services to be rendered hereunder. This Agreement (together with the Quotations) cancels, terminates and supersedes any agreement, formal or informal, oral or written heretofore entered into between the Parties pertaining to the subject matter or any of them prior to this Agreement. This Agreement may not be modified except by an instrument in writing executed by both Parties. In the event of any conflict between the terms of this Agreement and a Quotation, the terms of the Agreement shall prevail unless the Quotation explicitly states otherwise.
11.2 No Waiver. The failure of each Party to enforce at any time or for any period any right or provision hereof in accordance with its terms, shall not be construed as a waiver of such right or provision, and such Party shall be entitled to enforce such right or provision as it shall see fit.
11.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Israel, without giving effect to the rules respecting conflict-of-law. The competent courts located in the city of Tel-Aviv-Jaffa shall have exclusive jurisdiction over any dispute arising in connection with this Agreement.
11.4 Non-Solicitation. During the Term hereof and for a period of twelve (12) months thereafter, Customer shall not directly or indirectly employ, solicit or entice away or endeavor to solicit or entice away any person employed or engaged by the Service Provider any time during the twelve (12) months immediately prior the termination of this Agreement with a view to inducing that person to leave such engagement and to act for Customer or another employer in the same or a similar capacity.
11.5 Severability. If and to the extent that any provision or any part thereof is illegal, void, or unenforceable for any reason, then such provision or part thereof shall be deemed to be limited or eliminated to the minimum extent necessary and the remaining provisions contained herein shall remain in full force and effect.
11.6 Assignment. The Company may assign this Agreement or any of its rights or obligations hereunder, in whole or in part, to any third party, including but not limited to any of its affiliates, subsidiaries, or successors, without the prior consent of the Customer. The Customer shall not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of the Company. Any attempted assignment or transfer in violation of this provision shall be null and void.
11.7 Notices. All notices, requests, consents and other communications required or permitted under this Agreement shall be in writing and shall be deemed effective when mailed by registered or certified mail, postage prepaid, by air courier or by e-mail. A notice shall be effective (i) three (3) days after being delivered by hand or courier service, (ii) five (5) days after being sent by registered mail, or (iii) in the case of a notice given by email on the next business day after delivery if delivered by confirmed email.
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