IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU SHOULD NOT OPEN AN ACCOUNT WITH CATO AND IMMEDIATELY AVOID THE USE OF THE SOLUTIONS AND RETURN THEM TO CATO.
Cato reserves the right at any time to unilaterally modify the Agreement and to impose new or additional terms or conditions on your use of the Solution. In the event of material modifications or additions to the Agreement, Cato and/or a Cato distributor shall notify you via email or by means of a prominent notice on Cato’s website. BY CONTINUING TO USE THE SOLUTION OR ANY PART THEREOF FOLLOWING SUCH MODIFICATIONS, YOU AGREE TO BE BOUND BY SUCH MODIFICATIONS.
1.1. “Cato” shall mean (i) Cato Networks Inc. in the event that you are a US User; (ii) Cato Networks (Singapore) Pte. Ltd. in the event that you are a Singaporean User; otherwise -(iii) Cato Networks Ltd..
1.2. “Hardware” shall mean all hardware equipment provided to you by Cato and/or its approved distributors pursuant to this Agreement, if any, listed in the Cato Account Plan.
1.3. “Intellectual Property Rights” shall mean any and all worldwide, whether registered or not (a) patents, patent applications and patent rights; (b) rights associated with works of authorship, including copyrights, copyrights applications, copyrights restrictions, mask work rights, mask work applications and mask work registrations; (c) rights relating to the protection of trade secrets and confidential information; (d) trademarks, trade names, service marks, logos, trade dress, goodwill and domains (“Trademarks“); (e) rights analogous to those set forth herein and any other proprietary rights relating to intangible property; and (f) divisions, continuations, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.
1.4. “Cato Account Plan” shall mean your account subscription plan as designated by Cato, and hereby incorporated and made an integral part of this Agreement.
1.5. “Services” shall mean (i) the Cato proprietary software as a service (Saas), based on Cato’s software, listed in Cato Account Plan, (ii) any Service that is delivered to you by Cato or its distributors or is provided with the Hardware; (iii) all revisions, corrections, modifications, enhancements, improvements and/or updates and upgrades to the foregoing, and (iv) all related documentation included in the package and/or placed on Cato’s World Wide Web site.
1.6. “Solutions” shall mean the Service and Hardware.
1.7. “US User” shall mean a user that is an entity incorporated in the United States or a United States citizen/resident.
1.8. “Singaporean User” shall mean a user that is an entity incorporated in the Singapore or a citizen/resident of the Singapore.
2. Title to Hardware. Title and risk of loss and damage to the Hardware shall transfer to you upon delivery DDP (Cato’s designated point of delivery) Incoterms 2010 (“Point of Delivery“). Upon termination (by expiration or otherwise) of the Agreement, title to the Hardware shall automatically transfer back to Cato (free and clear of any liens or encumbrances) and you shall at your sole cost and expense (including, without limitation, expenses of de-installation, storage, transportation and in transit insurance) and in accordance with any other instructions of Cato, promptly return the Hardware to Cato in the same operating order, repair, condition and appearance as when received, except for normal depreciation and wear and tear at the Point of Delivery or at such other address as directed by Cato. Without derogating from your obligation to return the Hardware as described above, if you fail to return the Hardware within seven (7) days of the termination and/or expiration of the Agreement, you shall pay Cato the subscription fees for the applicable Solution at Cato’s rates until the Hardware is returned to Cato.
3. Ownership. Notwithstanding any other provision to the contrary, all Confidential Information, Trademarks, Feedback (defined below) and the Solutions, including without limitation all Service and Hardware and all improvements, enhancements and derivatives thereof and all Intellectual Property Rights thereto (“Cato IPR“) are exclusively owned by Cato and/or its licensors. This Agreement does not convey to user any right, title or interest in the Cato IPR, other than the revocable and limited license to use the Service as set forth in Section 4 below (provided user paid all applicable fees in full).
4. Confidential Information. The Solutions contain valuable trade secrets of Cato and any disclosure or unauthorized use thereof will cause irreparable harm and loss to Cato. User expressly undertakes to retain in confidence and to require its employees to retain in confidence all information and know-how in respect of the Solutions and/or that are transferred to, or discovered by user (“Confidential Information”). User expressly undertakes to (i) limit dissemination of the Confidential Information solely to its employees who have a need to know and who are bound by obligations and restrictions as to confidentiality and Intellectual Property Rights no less restrictive on said employees and no less protective of Cato IPR and Confidential Information than the terms hereof; (ii) not disclose the Confidential Information to any third party; and (iii) not use the Confidential Information for any purpose other than as explicitly permitted herein.
5. Grant of Rights. Subject to the terms and conditions of this Agreement (including payment of all applicable license fees) and for so long as user complies in full with all such terms and conditions, Cato grants user, and user accepts a limited, non-exclusive, personal, fee-bearing, non-transferable, non-sublicensable right to use the Service during the term set forth in the Cato Account Plan, solely in object code form, for personal use only by user and as part of the Solution. The license shall be granted until terminated pursuant to this Agreement.
6. User Obligations and Limitations on Use.
6.1. User shall not (i) copy, reproduce, sell, license (or sub-license), lease, loan, assign, transfer, or pledge the Solutions or any part thereof, or otherwise permit any third party to do any of the foregoing; (ii) modify, disassemble, decompile, reverse engineer, revise or enhance or create any derivative works or otherwise merge or utilize all or any part of the Solutions with or into any third party materials or components or attempt to access or discover the Service’s source code; (iii) place the Service onto a server so that it is accessible via a public network or use the Service for timesharing or Service Bureau purposes; (iv) ship, transfer, or export the Solution or any component thereof or use the Solution in any manner, prohibited by law, including without limitation to, sell, distribute, export or download Solutions: (a) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Lebanon or Syria, (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, (c) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. or Israeli government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval, or (d) otherwise in violation of any export or import restrictions, laws or regulations of the U.S. or Israel or any foreign agency or authority. User agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list; (v) contest Cato’s Intellectual Property Rights to the Cato IPR; (vi) use the Service that is installed on or embedded or included in any Hardware on any server or hardware other than the Hardware as delivered by Cato or its distributor; (vii) remove or add any labels, notices or logos to the Solutions, (viii) perform any act or be responsible to any omission that is illegal or in Cato’s discretion jeopardizes, destabilizes. interrupts or encumbers the Solutions or their servers and/or has a detrimental impact on Cato and/or Cato IPR; (ix) transmit or upload any spam, viruses, spyware or other harmful, infringing, illegal, disruptive or destructive content, messages or files; (x) access any Solution and/or its servers through or use with the Solutions any unauthorized means, services or tools, including, without limitation, any data mining, robots, or similar automated means or data gathering and extraction tools, including, without limitation, in order to extract for re-utilization of any parts of the Solutions; or (xi) cause or permit any third party to do any of the foregoing.
6.2. User is solely responsible for acquiring and maintaining all of the hardware, software and services necessary to access and make use of the Solutions, including without limitation paying all fees and other costs related to internet access. User shall use the Solutions in a proper environment as set forth in the Solution documentation and in compliance with the applicable operating instructions and all applicable laws and regulations and for no purpose other than as specifically authorized in the Solution documentation.
6.3. Cato may require you to enable and permit you and/or Cato (and/or its third party contractors) to decrypt, monitor, process, decompile, reproduce, record and store (“Processing“) network traffic including traffic data and URL(s), IP address(es) used in connection therewith (“Traffic“) to support the Services. You hereby warrant that: (i) you own or have all sufficient rights in and to the Traffic (ii) you have obtained all applicable rights, consents, permits and licenses required for Processing.
7. Payments. You shall pay Cato all applicable fees for the Solution as set forth in the Cato Account Plan. All fees are due net thirty (30) days from the date of invoice. Any amount not paid when due shall bear a late payment charge, until paid, in an amount equal to 1.5% per month or, if lower, the maximum rate allowed by law. In addition, you shall reimburse Cato for all reasonable costs (including legal fees and expenses) in collecting unpaid amounts owed under this Agreement. You will be responsible for all applicable sales, use and excise taxes and like charges imposed with respect to the Cato Solution, your use thereof or any services provided by Cato, except for taxes based on the net income of Cato.
8. SLA. Subject to user’s compliance with the terms of this Agreement (including payment in full of all applicable fees), Cato shall make reasonable efforts to provide the Services at the levels set forth in the Schedule A attached hereto (“SLA“).
9. Feedback. User agrees that any feedback or ideas user provides to Cato or distributors regarding any Solutions, their use or any suggested improvements, enhancements or derivatives (“Feedback“) thereto will be the exclusive property of Cato and shall be deemed as Cato IPR and Confidential Information. User shall not disclose or publish such Feedback or otherwise make any such information publicly available. To the extent all right, title and interest in and to all Intellectual Property Rights in the Feedback are not owned in their entirety by Cato upon creation, user hereby irrevocably assigns all rights therein to Cato and waives any and all rights therein including without limitation moral rights and/or rights to receive compensation and/or royalties.
10. U.S. Government Rights. As defined in 48 C.F.R. §2.101, DFAR §252.227-7014(a)(1) and DFAR §252.227-7014(a)(5) or otherwise, all Solutions provided in connection with this Agreement are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
12. Disclaimer of Warranty.
12.1. THE SOLUTIONS ARE PROVIDED “AS IS”, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CATO DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, SECURITY AND NON-INFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOLUTION REMAINS WITH USER. CATO EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO ANY THIRD-PARTY HARDWARE PROVIDED TO YOU BY CATO, AND YOU ACCEPT ALL RISKS WHICH MAY ARISE FROM YOUR USE OF ANY SUCH THIRD-PARTY HARDWARE.
12.2. CATO DOES NOT WARRANT THAT THE SOLUTIONS WILL BE UNINTERRUPTED OR ERROR-FREE; OR THAT ERRORS/BUGS ARE REPRODUCIBLE OR THAT ERRORS/BUGS ARE REPAIRABLE AND DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOLUTIONS IN TERMS OF THEIR CORRECTNESS, USEFULNESS, ACCURACY, RELIABILITY, OR OTHERWISE. USER SHALL BE RESPONSIBLE FOR TAKING ALL PRECAUTIONS USER BELIEVES ARE NECESSARY OR ADVISABLE TO PROTECT USER AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY VIRTUE OF ANY USE OF OR RELIANCE UPON THE SOLUTIONS AND FOR VERIFYING ANY OUTPUT RESULTING FROM USE OF THE SOLUTIONS. User specifically acknowledges that the Service may include password protection, anti-copying subroutines or other security measures designed to monitor the usage of the Service for license management purposes.
12.3. THE SOLUTION IS NOT DESIGNED FOR USE WITH CRITICAL OR LIFE SAVING INFRASTRUCTURES, SYSTEMS THAT CONTAIN OR PROTECT AGAINST DANGEROUS OR HAZARDOUS MATERIALS OR FORCES, NATIONAL SECURITY PURPOSES OR NUCLEAR, CHEMICAL, OR BIOLOGICAL WEAPONS.
13. Limitation of Liability. IN NO EVENT SHALL CATO OR ITS AFFILIATES, LICENSORS, SUPPLIERS, REPRESENTATIVES OR DISTRIBUTORS OR THEIR SHAREHOLDERS, MANAGERS, DIRECTORS, OFFICERS, AFFILIATES AND EMPLOYEES (“CATO AFFILIATE“) RESPECTIVELY BE LIABLE TO YOU OR ANY THIRD PARTY, UNDER ANY LEGAL THEORY WHETHER CONTRACT, TORT OR OTHERWISE, FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL, CONSEQUENTIAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, LOSS OF DATA INCLUDING ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOLUTION OR OTHER PECUNIARY LOSS) ARISING OUT OF SERVICES PROVIDED HEREUNDER AND/OR THE USE OF OR INABILITY TO USE THE SOLUTIONS OR ANY PART THEREOF EVEN IF CATO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CATO SHALL HAVE NO LIABILITY FOR ANY WARRANTY, INSTALLATION SERVICES, OR USE OF THE SOLUTION. IN THE EVENT THAT DESPITE THE AFOREMENTIONED LIMITATION OF LIABILITY ANY COMPETENT AUTHORITY WILL FIND CATO OR ANY CATO AFFILIATE LIABLE, CATO’S AND/OR ANY CATO AFFILIATE’S AGGREGATE LIABILITY SHALL NOT EXCEED AN AMOUNT EQUAL TO THE AGGREGATE LICENSE FEES PAID BY YOU TO CATO FOR THE SOLUTION DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
14. Indemnification. You agree to defend, indemnify and hold harmless Cato and anyone on its behalf, including but not limited to, all of its shareholders, managers, directors, officers, affiliates and employees, against any losses, expenses, costs, claims, damages (including reasonable attorney fees, expert fees and other reasonable costs of litigation) arising from, incurred as a result of, or in any manner related to your use of the Solutions and/or breach of this Agreement.
15. Termination. Cato may terminate this Agreement by notice to you: (i) upon your failure to comply with any of your obligations hereunder; (ii) immediately and without notice in the following events: (a) if user attempts to transfer or assign any of its rights, liabilities or obligations under this Agreement contrary to the provisions of this Agreement; (b) failure by user to pay any of the applicable fees; or (c) violation of any of the limitations set forth in Section 6.1 above. Upon termination or expiration of this Agreement: (i) user shall immediately pay Cato all fees and payments, regardless of the due date of payment, and (ii) the license granted to you in this Agreement shall expire, title to the Hardware shall automatically transfer to Cato and you shall cease use of the Solutions and immediately return to Cato all Hardware, Confidential Information and Cato IPR in any media and shall erase all copies of the Service. Notwithstanding the termination or expiration of this Agreement, Sections 1-4, 6, 7, 9-17 shall survive and remain in effect in perpetuity.
16. Governing Law & Jurisdiction. Section 16.1 shall apply in respect of US Users, otherwise Section 16.2 shall apply:
16.1. This Agreement is governed by the laws of the State of Delaware without regard to conflict of laws provisions thereof. The courts of the State of Delaware shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement and both parties hereby irrevocably submit to the exclusive jurisdiction of those courts.
16.2. This Agreement is governed by the laws of the State of Israel without regard to conflict of laws provisions thereof. The courts of Tel Aviv, Israel shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement and both parties hereby irrevocably submit to the exclusive jurisdiction of those courts.
17. General. (i) The Agreement and the Cato Account Plan are the entire agreement between you and Cato in respect of the subject matter herein and this Agreement shall not be modified except as provided herein; (ii) Cato may assign this Agreement, in whole or in part, in its sole discretion. You may not assign or otherwise transfer this Agreement or any of your rights and obligations under this Agreement to any third party without the prior written consent of Cato. Any unauthorized assignment will be void and of no force or effect; (iii) unless otherwise expressly provided, no provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity other than you and Cato, its affiliates and successors or assignees any rights, remedies or other benefits under or by reason of the Agreement; (iv) no failure or delay on the part of Cato or its distributor hereto in exercising any right, power or remedy shall operate as a waiver thereof, any waiver granted by Cato and/or a distributor hereunder must be explicit and in writing and shall be valid only in the specific instance in which given.
Schedule A –SLA
This Schedule A (“SLA”) is an integral part of the Agreement to which it is attached and subject to the terms, conditions, disclaimers and limitations (including limitation of liability) set forth therein. Defined terms shall have the meaning ascribed to them in the Agreement, unless defined otherwise herein. The SLA shall apply to the Services for the user’s applicable office-headquarters/branch-office/on-premise-datacenter/off-premise-datacenter permitted and authorized by Cato (“USER“). The SLA provides certain remedies in the event that the USER experiences Downtime (as defined below) as a result of failure of Cato infrastructure. The overall Service Availability (as defined below) metric is 99.999%, measured by Cato on a monthly basis, as set forth herein (“SLA Metric“).
For the purpose of this SLA, the terms in bold are defined as follows:
Available or Availability
When the USER whose account is active and enabled has reasonable access to the Service provided by Cato, subject to the exclusions defined in Downtime Minutes below.
Total Monthly Minutes
The number of days in the month multiplied by 1,440 minutes per day.
The time period during which the Service may not be Available each month so that Cato can perform routine maintenance to maximize performance, on an as needed basis.
The total number of minutes that the USER cannot access the Service. The calculation of Downtime Minutes excludes time that the USER is unable to access the Services due to any of the following:
(a) Maintenance Time
(b) USER’s own Internet service provider
(c) Force majeure event
(d) Any systemic Internet failures
(e) Any failure in the USER’s own hardware, software or Network connection
(f) USER’s bandwidth restrictions
(g) USER’s acts or omissions
(h) Anything outside of the direct control of Cato
(i) USER’s failure to comply with USER Responsibilities set forth below.
The Cato network inside of Cato border routers.
The Services are provided in a multi-tenant architecture where seats of a USER’s domain may be extended across numerous servers. USER may obtain remedy only for affected seats residing on the server experiencing Downtime exceeding the SLA Metrics.
Cato will make reasonable efforts to communicate the date and time that Cato intends to make the Services unavailable via the front page of the support web site at least forty-eight (48) hours in advance (or longer if practical). No notice shall be required for routine Maintenance Time conducted on Sundays 4PM UTC for approximately four hours; or in the event of emergency. The USER understands and agrees that there may be instances where Cato needs to interrupt the Services without notice in order to protect the integrity of the Services due to security issues, virus attacks, spam issues or other unforeseen circumstances. Below are the Maintenance Windows and their definitions:
These change controls happen immediately with little notification ahead of time; however,
we will post the information to our website soon after or during the change.
These change controls are when we detect an item in the environment that we need to
take action on, to avoid emergency change controls in the future. These change controls, if possible, will usually occur in low peak hours with peak being defined by our network metrics.
These are change control’s being done to:
– Support on-going product and operational projects to ensure optimal performance
– Deploy non-critical service packs or patches.
– Periodic redundancy testing.
Where possible planned maintenance will be posted 5-days prior; however, certain
circumstances may preclude Cato from doing so, such as an external vendor issuing a change control to Cato, e.g. the power company alerting Cato to perform power testing 48 hours ahead of time.
The required configurations USER must have to access the Services include:
– Internet connection with adequate bandwidth
– Internet Browser
Web-based Administration Interface
The Service includes an interface that constitutes the Web-based Administration Interface provided to all USERs enabled with Services, therefore the USERs can manage their own account and Services. The USER should use discretion when granting internal administrative privileges to the Web-based Administration Interface. Cato is not responsible for Downtime related to negligence in the Web-based Administration Interface and is unable to provide credits due to negligence in the Web-based Administration Interface. An example of negligence is Service unavailability caused by reaching quota limits. Another negligence example is Services disabled/deleted in error. Please note that the SLA does not include any back up or recovery services.
Term of SLA
This SLA shall only become applicable to the Services upon completion of the “stabilization period,” i.e. ninety (90) days from the provisioning of the Services.
Cato uses a proprietary system to measure whether the Services are Available and the USER agrees that said Cato system will be the sole basis for resolution of any dispute that may arise between the USER and Cato regarding this SLA.
Availability is calculated based on the following formula:
A = (T – M – D) / (T – M) x 100%
A = Availability
T = Total Monthly Minutes
M = Maintenance Time
D = Downtime
|Availability||SLA Credit Amount of applicable Service Monthly Fee for Affected Seats|
|> 97.9% but < 99.999%||5%|
|> 96.9% but < 97.9%||7%|
REMEDY AND PROCEDURE
The USER’s sole remedy and the procedure for obtaining the USER’s remedy in the event that Cato fails to meet the Service level metrics set forth above are as follows:
To qualify for remedy:
(a) There must be a support ticket documenting the event within 24 hours of the service interruption
(b) USER account must be in good standing with all invoices paid and up to date
The USER must notify Cato in writing within five (5) business days by opening a support ticket and providing the following details:
(a) Subject of email must be: “Claim Notice – <account-name>” (USER’s account name as registered with Cato must be listed in place of ‘<account-name>’)
(b) List the type of Service that was affected
(c) List the date the Downtime Minutes occurred
(d) List USERs (office-headquarters/branch-office/on-premise-datacenter/off-premise-datacenter) affected by Downtime Minutes
(e) List an estimate of the amount of actual Downtime Minutes
(f) Ticket number of the documented event
The information provided in the Claim Notice is subject to Cato’s confirmation, which Cato will endeavor to confirm within five (5) business days of receipt of the Claim Notice. If Cato cannot confirm the Downtime Minutes, then the USER and Cato agree to refer the matter to executives at each company for resolution.
If Cato confirms that Cato is not in compliance with the SLA Metrics, the USER will receive, as sole and exclusive remedy for any breach of the SLA/Services/Agreement, the SLA Credits Amount set forth in the table above, solely for the affected SLA Metric in respect of the Affected Seats for the affected month.
The SLA credit will be reflected in the Cato invoice to the USER in the Service’s annual renewal invoice following Cato’s confirmation of the Downtime Minutes. Please note that SLA credits can only be applied to accounts that are in good standing with all invoices paid and up to date.
The remedy set forth herein is subject to the disclaimers and limitation on liability set forth in the Agreement.