MASTER SERVICES AGREEMENT

THESE SEVICES TERMS AND CONDITIONS (the “Agreement”) CONSTITUTE A BINDING AGREEMENT BETWEEN THE PENTERA ENTITY (“Company”) AND THE CUSTOMER ENTITY (“Customer”), EACH AS SPECIFIED IN THE ORDER FORM WHICH ONCE ACCEPTED BY COMPANY, IS HEREBY INCORPORATED INTO, AND MADE A PART OF, THIS AGREEMENT BY REFERENCE.  Company and Customer may be collectively referred to herein as the “Parties”, and each individually as a “Party”.

By using the Services, you have accepted this Agreement. Company may modify this Agreement from time to time without notice; you should check back often so you are aware of your current rights and responsibilities. Your continued use of the Services after changes to the Agreement have been published constitutes your binding acceptance of the updated Agreement.

If Customer has an existing agreement in effect with Company for the Services (an “Existing Agreement“), then the Parties agree that the Order Form shall be governed by, and deemed incorporated into and made a part of, the Existing Agreement (and not this Agreement), in which case, the following terms and conditions shall not apply

1. DEFINITIONS

The following capitalized terms have the meanings set forth below:

“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” means the possession, directly or indirectly, of the power to direct, or cause the direction of, the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.

“Authorized Contact” means any individual identified in an Ordering Document, or otherwise designated in writing by Customer, as authorized to submit or approve Service Requests, provide instructions, and authorize the performance of Services under the applicable Ordering Document.

“Background IPR” means any Intellectual Property Rights and/or Confidential Information owned by (or license to) a Party before the Effective Date or is created by a Party after the Effective Date independently of this Agreement.

“Channel Partner” means a Company authorized distributor, reseller, or other channel partners for the Product.

“Consumption Record” means Company’s records of Credits purchased, Credits consumed, Services performed, Service Requests, dates of performance, Deliverables delivered, and remaining Credit balance under an applicable Ordering Document.

“Credits” means prepaid or committed service credits, units, hours, points or other consumption units purchased by Customer under an Ordering Document for use toward Eligible Services during the applicable Service Term, as specified in such Ordering Document.

“Credits-Based Services” means Services purchased under an Ordering Document on a recurring, subscription, annual commitment or credit-based basis, under which Customer purchases a predefined number or value of Credits for consumption during the applicable Service Term.

“Deliverables” means the reports, materials, findings, summaries, recommendations or other deliverables expressly identified as deliverables in an applicable Ordering Document or Service Request.

“Eligible Services” means the Services, service packages, activities or Deliverables against which Credits may be applied, as specified in the applicable Ordering Document or Company’s then-current services catalog or rate card, as applicable.

“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, software, designs, utility models, branding, technical data, databases, know-how, mask works, specifications, algorithms, and other intellectual property or technology in any form and embodied in any media, 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.

“One-Time Services” means Services purchased on a non-recurring, short-term, project-based or usage-based basis, as specified in the applicable Ordering Document.

“Order Form” means an Ordering Document used to order Services, including Credit-Based Services or One-Time Services.

“Ordering Document” means any order form, statement of work, quote, subscription order or other written ordering document, whether executed directly between the Parties or indirectly between Company and a Channel Partner, pursuant to which Customer obtains Services. An Ordering Document may set forth, as applicable, the ordered Services, service model, SKUs, Credits, Eligible Services, Service Term, Deliverables, milestones, timelines, Fees, billing terms, consumption rules, and other commercial or operational terms. Each Ordering Document is incorporated by reference into, and is subject to, this Agreement. In the event of any conflict or inconsistency between this Agreement and an Ordering Document, this Agreement shall prevail, except that the Ordering Document shall prevail solely with respect to the Services ordered, Credits, Eligible Services, Service Term, Deliverables, timelines, Fees, billing schedule, and other commercial terms expressly set forth therein.

“Service Request” means a written request, work authorization, email confirmation, ticket, scoping confirmation or other written instruction or approval, submitted or approved by Customer under an applicable Ordering Document, authorizing Company to perform a specific service activity within the scope of such Ordering Document.

“Service Term” means the period during which Customer may receive Services or consume Credits under an applicable Ordering Document, as specified therein.

2. SERVICES

• General. Company shall provide the Services described in the applicable Ordering Document solely for Customer’s benefit. Services may be purchased and performed as Credit-Based Services, One-Time Services, or such other service arrangement as may be expressly set forth in the applicable Ordering Document. Customer shall cooperate with Company, and shall make available to Company all relevant systems, assets, resources, information, personnel, credentials, environments and approvals, as well as perform its respective tasks, roles and responsibilities allocated to it under the applicable Ordering Document or Service Request. Customer acknowledges that Company’s performance depends on such cooperation, and Company shall not be liable for delays or failures caused by Customer’s non-performance, delay, inaccurate instructions, insufficient permissions, or failure to provide required access, information or approvals. Unless otherwise specified in the applicable Ordering Document, Services shall be performed remotely. If Company agrees to physical attendance at Customer’s premises or other locations, such attendance shall be charged at Company’s then-current rates, and Company shall be entitled to reimbursement for reasonable travel and lodging expenses. The Services are strictly limited to the scope, restrictions and duration expressly set forth in the applicable Ordering Document and any applicable Service Request.
• Ordering Documents; Service Models. Customer may order Services through one or more Ordering Documents. Each Ordering Document shall identify the Services ordered and may identify the applicable service model, including: (a) Credit-Based Services; (b) One-Time Services; or (c) any other service model agreed in writing by Company. For Credit-Based Services, a single annual Ordering Document may govern Customer’s purchase and consumption of Credits during the applicable Service Term. Customer will not be required to execute a separate Ordering Document for each individual Service Request or use of Credits during such Service Term, provided that such Service Request is within the scope, restrictions, Credit balance and Service Term of the applicable Ordering Document. A new Ordering Document or written amendment will be required for any purchase of additional Credits, renewal or extension of the Service Term, or material expansion of scope.
• Credit-Based Services; Credit Consumption. Where an Ordering Document specifies Credit-Based Services, Customer will purchase the number or value of Credits set forth in such Ordering Document. Credits may be applied only to Eligible Services during the applicable Service Term. Credits will be deducted based on the Services performed, Deliverables delivered, resources allocated, or other consumption rules set forth in the applicable Ordering Document or, if not specified, Company’s then-current credit consumption methodology. Company may track Credit consumption using its then-current systems, tools and processes. Company’s Consumption Records shall be deemed accurate and controlling absent manifest error. Upon Customer’s reasonable request, Company will provide available summary consumption information for the applicable Ordering Document. Credits have no cash value and, unless expressly stated otherwise in the applicable Ordering Document, are non-refundable, non-transferable, may not be exchanged for other services or products, may not be carried over to any renewal or future term, and will expire automatically at the end of the applicable Service Term. Company has no obligation to perform Services or accept Service Requests in excess of the purchased Credits or outside the applicable scope.
• Service Requests; Work Authorization. During the applicable Service Term, Customer may request performance of Eligible Services by submitting a Service Request to Company. Service Requests may be submitted and approved by email, ticket, mutually agreed work plan, or other written confirmation. Each Service Request should specify, to the extent applicable, the requested Services, target systems or environments, permitted activities, timing or testing window, restrictions, contacts, prerequisites, and Deliverables. Company may rely on any Service Request or other instruction submitted or approved by an Authorized Contact as Customer’s authorization for Company to perform the requested Services. Each accepted Service Request will be deemed part of the applicable Ordering Document solely for purposes of scope, authorization and Credit consumption, and will not require a separate Ordering Document, provided that it is within the then-current scope, restrictions, Credit balance and Service Term of the applicable Ordering Document. Company may decline, pause or request clarification with respect to any Service Request that Company reasonably determines is outside scope, insufficiently authorized, non-compliant with applicable law, inconsistent with the applicable Ordering Document, or likely to create undue operational, security, legal or business risk.
• Changes; Additional Credits; Rescheduling. Any modification to the scope, specifications, Deliverables, Credits, Eligible Services, Fees, timelines, Service Term or other terms of an Ordering Document must be made in writing and signed or otherwise expressly accepted by authorized representatives of the Parties. Routine Service Requests that are within the existing scope, restrictions, Credit balance and Service Term of an applicable Ordering Document shall not constitute a Change Request and shall not require a new Ordering Document. If a requested change requires additional Credits, additional Fees, revised timelines, or other changes to the applicable Ordering Document, Company will provide proposed pricing, timelines and applicable terms. Such change will become valid and enforceable only upon the Parties’ execution or written acceptance of a change order, amendment or new Ordering Document. Unless otherwise specified in an Ordering Document, the Services shall commence within twelve (12) months following the effective date of the applicable Ordering Document; provided that Customer may request to reschedule the commencement date once, to a date within such twelve (12)-month period, at no additional charge, upon providing at least thirty (30) days’ prior written notice. Any additional rescheduling shall be subject to Company’s availability and may be subject to additional Fees.
• Project Completion. Unless otherwise provided in the applicable Ordering Document, a Project, Service Request or other discrete service activity shall be deemed completed upon Company’s delivery of the applicable final Deliverable, completion of the applicable Services, or consumption of the applicable Credits, as applicable. For Credit-Based Services that are not tied to a discrete Deliverable, the applicable Services shall be deemed completed upon Company’s performance of the relevant service activity under the applicable Service Request.
• Access Rights. Customer hereby grants Company, its Affiliates, and approved subcontractors a worldwide, non-exclusive, non-sublicensable except to Company’s Affiliates and approved subcontractors, non-transferable, royalty-free right to access, use, test, scan, assess, interact with Customer’s systems, networks, applications, environments, users, roles, credentials, configurations, data, and other materials or information provided or made available by Customer, solely as necessary to perform the Services under this Agreement, the applicable Ordering Document, and any applicable Service Request. Customer acknowledges and agrees that Company may rely on each Ordering Document, Service Request, instruction, approval, credential, configuration, scope definition, and other material provided or approved by Customer as valid authorization to perform the Services described therein.
• Customer Representations and Warranties.

Customer represents and warrants that:

• it is authorized to grant Company the Access Rights set forth in Section 2.7 and in any applicable Ordering Document or Service Request, and has all necessary consents, authorizations, rights and permits necessary for Company’s provision of the Services;
• all environments, hardware, software, systems, networks, applications, accounts, users, devices and data made available in connection with the Services are owned or controlled by Customer or otherwise subject to Customer’s lawful authority, and Company is entitled to rely, without independent verification or investigation, on all instructions, information, scope definitions, Service Requests, credentials, configurations, approvals and materials provided or made available by Customer for purposes of performing the Services;
• it shall comply with all applicable laws relating to the systems and information necessary for the Company to perform the Services and obligations under this Agreement and/or any applicable Ordering Document, including data protection and privacy laws and regulations;
• the Services may include simulated or actual security testing activities, including without limitation penetration testing, exploitation attempts, privilege escalation, lateral movement, credential testing, configuration review, scanning, validation, assessment, and other offensive security techniques, whether described in an Ordering Document or Service Request, and Customer assumes all risks associated with the performance of the Services within the agreed scope and environment;
• it shall indemnify, defend, and hold harmless Company, its Affiliates, and their respective officers, directors, employees, contractors, subcontractors, and agents from and against any and all claims, demands, actions, proceedings, damages, losses, liabilities, fines, penalties, costs, and expenses, including reasonable attorneys’ fees, arising out of or relating to: (a) any allegation that Company lacked proper authorization to perform the Services or to access, test, scan, assess, interact with, or analyze any system, application, network, environment, account, user, device or data, including pursuant to any Ordering Document or Service Request, or Customer’s failure to obtain required third-party consents or approvals; (b) Customer’s breach of applicable laws or regulations, including without limitation data protection and privacy laws; or (c) Customer data, systems, environments, credentials, instructions, Service Requests, approvals, configurations, or materials, including any claim arising from the content, legality, ownership, authority, or use of such data, systems, environments, credentials, instructions, Service Requests, approvals, configurations, or materials.

• Acceptance. Unless an Ordering Document expressly provides otherwise, this Section 2.9 applies only to Deliverables expressly identified in an Ordering Document or Service Request. Services that do not include a Deliverable shall be deemed accepted upon performance. Customer shall have seven (7) days following delivery of any Deliverable to provide written notice of rejection, specifying in reasonable detail any material non-conformity with the applicable Ordering Document or Service Request. If Customer fails to provide such notice within the acceptance period, the Deliverable shall be deemed accepted. Company’s sole obligation, and Customer’s sole remedy, with respect to any non-conforming Deliverable shall be for Company to use commercially reasonable efforts to correct the identified non-conformity. Rejection of a Deliverable shall not affect acceptance of other Services or Deliverables, Customer’s payment obligations, or Credit consumption, except to the extent directly attributable to the rejected non-conforming Deliverable. For the avoidance of doubt, Customer shall not, and shall not permit any third party to, modify, alter, adapt, or amend any Deliverable provided by Company.

3. PAYMENT

• Fees. Customer shall pay Company the fees, charges, Credit commitments and other amounts set forth in the applicable Ordering Document (the “Fees”), in accordance with the payment terms specified therein.
• Billing for Credit-Based Services. Unless expressly stated otherwise in the applicable Ordering Document, Fees for Credit-Based Services are annual, prepaid, non-cancellable and non-refundable, and will be invoiced in accordance with the billing schedule set forth in the applicable Ordering Document or, if no billing schedule is specified, upon the effective date of the applicable Ordering Document. Customer’s obligation to pay Fees for Credit-Based Services is not dependent on Customer’s actual consumption of Credits, and unused Credits will expire at the end of the applicable Service Term without refund, credit, set-off or carry-over. If an Ordering Document sets forth a committed annual Credit amount but permits installment, milestone-based or incremental invoicing, Customer shall remain committed to pay the full committed amount unless the Ordering Document expressly states otherwise. If an Ordering Document expressly states that Fees are payable solely based on actual delivery, actual consumption, or completed milestones, such Fees shall be invoiced and payable in accordance with that Ordering Document.
• Billing for One-Time Services. Unless expressly stated otherwise in the applicable Ordering Document, Fees for One-Time Services shall be invoiced incrementally based on actual Services delivered, completed milestones, Credits or units consumed, or such other billing mechanism as may be set forth in the applicable Ordering Document. If no billing schedule is specified, Company may invoice One-Time Services upon completion of the applicable Services, delivery of the applicable Deliverable, or monthly in arrears for Services performed during the prior month.
• Additional Credits; Overages. Company has no obligation to perform Services, accept Service Requests, or provide Deliverables in excess of the Credits, Fees, scope, restrictions, or Service Term set forth in the applicable Ordering Document. Customer may purchase additional Credits or additional Services only through a new Ordering Document or a written amendment or change order accepted by Company. Company may suspend or decline performance of any Service Request that exceeds the remaining Credits or applicable scope until the Parties execute or accept the applicable Ordering Document, amendment or change order.
• General. Unless expressly stated otherwise in the applicable Ordering Document: (a) all Fees are stated, and are to be paid, in US Dollars; (b) all Fees are payable and shall be paid within thirty (30) days from the date of receipt of a valid invoice by Company; (c) all payments and payment obligations under this Agreement are non-refundable, non-cancellable, and are without any right of set-off or cancellation; 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 or the highest amount permitted by applicable law.
• 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 Company’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 Company shall be increased by the amount necessary so that Company 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.

4. IP OWNERSHIP

• • Background IPR. Each Party (and/or its licensors, as applicable) is and shall be the exclusive owner of all right, title, and interest (including without limitation all Intellectual Property Rights) in and to: (a) its Background IPR; (b) any improvements, derivatives, enhancements, and/or modifications (regardless of inventorship or authorship) of or to its Background IP developed in connection with the Services; and (c) any ideas, suggestions, or other feedback for or about its Background IPR provided by or on behalf of the other Party. Any rights not expressly granted herein are hereby reserved. For clarity, Company’s Background IPR includes Company’s service catalogues, pricing and rate cards, credit consumption methodologies, methodologies, frameworks, playbooks, templates, tools, scripts, know-how, processes, and systems used to provide, price, track, manage or improve the Services.
  • Deliverables. Upon full payment of all applicable Fees, all right, title, and interest in and to the Deliverables shall vest in Customer. Notwithstanding the foregoing, Company retains all rights, title, and interest in and to its Background IPR, including any tools, scripts, methodologies, and know-how used in connection with the Services.
  • Usage Data. Company may collect, use, and retain de-identified, anonymized, and aggregated information derived from the performance and use of the Services (“Usage Data”) for purposes of research, analytics, service improvement, and security insights, including the application of AI features to analyze such Usage Data in connection with the Services, provided that such information does not identify Customer or any individual. For the avoidance of doubt, Usage Data shall not be used to develop, train, retrain, fine-tune, or otherwise improve any AI or machine learning models.

5. CONFIDENTIALITY

   Each Party (the “Recipient“) may have access to certain non-public or proprietary information and materials of the other Party (the “Discloser“), whether in tangible or intangible form (“Confidential Information“). 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) is 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 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 any Ordering Document, and any non-public pricing, discounts, rate cards, service catalogues, credit consumption methodologies, Consumption Records, consumption reports, or similar commercial or operational information provided by Company, are Company’s Confidential Information, and Customer shall not disclose such Confidential Information to any third party without Company’s prior express written consent.

6. DATA PROTECTION AND PRIVACY

   To the extent the Services require Company to access, process, or store any personal data or confidential information of Customer, Company shall do so solely for the purpose of performing the Services in accordance with this Agreement, the applicable Ordering Document, and any applicable Service Request, and in compliance with all applicable data protection and privacy laws. Company shall implement appropriate technical and organizational measures to protect such data against unauthorized access, use, or disclosure.

7. DISCLAIMER

• EXCEPT AS MAY BE EXPRESSLY STATED OTHERWISE IN THIS AGREEMENT, THE COMPANY’S SERVICES, DELIVERABLES, AND ANY RELATED MATERIALS PROVIDED OR MADE AVAILABLE BY COMPANY OR ITS AFFILIATES HEREUNDER ARE PROVIDED AND MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL DEFECTS, 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 COMPANY AND ITS SUPPLIERS AND LICENSORS.
• COMPANY DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION: (A) REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, TIMELINESS, COMPLETENESS, OR QUALITY OF THE SERVICES AND/OR THE DELIVERABLES; (B) THAT THE CUSTOMER’S USE OF THE SERVICES AND/OR THE DELIVERABLES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; OR (C) REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY LAWS, REGULATIONS, OR OTHER GOVERNMENT OR INDUSTRY RULES OR STANDARDS. COMPANY SHALL 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. CUSTOMER ACKNOWLEDGES THAT ANY FINDINGS, INSIGHTS, PRIORITIZATION, REMEDIATION GUIDANCE, SCORES, OR RECOMMENDATIONS GENERATED THROUGH THE SERVICES ARE PROVIDED FOR INFORMATIONAL AND ADVISORY PURPOSES ONLY. COMPANY DOES NOT PROVIDE OPERATIONAL, BUSINESS, COMPLIANCE, OR RISK MANAGEMENT DECISIONS, AND CUSTOMER REMAINS SOLELY RESPONSIBLE FOR ALL DECISIONS, ACTIONS, AND OMISSIONS TAKEN IN RELIANCE ON THE SERVICES OR ANY DELIVERABLE THEREOF.

8. LIMITATION OF LIABILITY

• EXCEPT FOR: (I) A PARTY’S BREACH OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (II) GROSS NEGLIGENCE AND/OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EACH PARTY, ITS AFFILIATES, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF DATA, DATA CORRUPTION OR RECOVERY, INTERRUPTION OR INABILITY TO USE SYSTEMS OR PLATFORMS, BREACH OF DATA OR SYSTEM SECURITY, LOSS OF GOODWILL OR REPUTATION, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
• NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR ANY ORDERING DOCUMENT TO THE CONTRARY, COMPANY’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT FOR ANY AND ALL CLAIMS RELATING TO ITS SERVICES, DELIVERABLES OR ANY OTHER MATTERS INVOLVING OR OTHERWISE CONTEMPLATED BY THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CAUSES OF ACTION ARISING OUT OF OR BASED UPON CONTRACT, TORT, WARRANTY, NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER (OR, IF APPLICABLE, BY CHANNEL PARTNER) TO COMPANY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE APPLICABLE CLAIM.
• 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. TERM AND TERMINATION

• Term. This Agreement commences on the Effective Date and shall remain in effect until terminated in accordance with the provisions set forth herein. Each Ordering Document shall remain in effect for the Service Term specified therein, unless earlier terminated in accordance with this Agreement or such Ordering Document.
• Termination for Breach. Each Party may terminate this Agreement immediately upon written notice to the other Party if such other Party commits a material breach under this Agreement and, if curable, fails to cure that breach within thirty (30) days after receipt of written notice specifying the material breach (except that for payment defaults, such cure period will be seven (7) days).
• Termination for Insolvency. Each Party may terminate this Agreement immediately upon written notice if the other Party becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, or becomes subject to any proceeding under any bankruptcy or insolvency law, whether domestic or foreign, or has wound up or liquidated, voluntary or otherwise.
• Effect of Termination; Survival. Termination shall not affect any rights or obligations that accrued as of the effective date of termination. Any provision of this Agreement that ought by its nature to survive termination, shall survive, including without limitation Sections ‎‎4 (IP Ownership) through ‎‎10 (Miscellaneous). If this Agreement or any Ordering Document is terminated or expires for any reason whatsoever, Customer shall pay Company all amounts due for Services performed, Credits purchased, Credits consumed, Deliverables delivered, Service Requests accepted, and Fees otherwise accrued through the effective date of termination or expiration, in accordance with invoices issued or to be issued by Company.
• Expiration of Ordering Documents; Unused Credits. Upon expiration of an Ordering Document, Company shall have no obligation to perform additional Services, accept additional Service Requests, or provide additional Deliverables under such Ordering Document. For short-term or One-Time Services, Customer must enter into a new Ordering Document or renewal to continue receiving Services after the applicable Service Term ends. Unless expressly stated otherwise in the applicable Ordering Document, or unless termination results from Company’s uncured material breach, expiration or termination of an Ordering Document shall not entitle Customer to any refund, credit, set-off, extension, or carry-over of unused Credits.

10. MISCELLANEOUS

• Entire Agreement and Amendments. This Agreement, together with any Ordering Documents and annexes, 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. In entering into this Agreement or any Ordering Document, neither Party is relying on any representation or statement not expressly specified in this Agreement or such Ordering Document. Any terms or conditions, whether printed, hyperlinked, or otherwise, in any purchase order or other standardized business form, which purport to supersede, modify or supplement this Agreement or any Ordering Document, shall be void and of no effect, except solely for commercial details expressly accepted by Company in an Ordering Document. This Agreement may only be amended by a written instrument duly signed by each Party. An Ordering Document may only be amended in accordance with Section 2.5. The section and subsection headings used in this Agreement are for convenience only. This Agreement and any Ordering Document may be executed in counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
• Assignment. This Agreement may not be assigned, in whole or in part, by either Party without the prior express written consent of the other Party; except, however, that each Party may, upon written notice to the other, assign this Agreement in whole to: (A) its Affiliate; or (B) a successor in connection with a merger, consolidation, or acquisition of all or substantially all of the assigning Party’s assets or business relating to this Agreement. Any prohibited assignment will be null and void. Subject to the provisions of this Section (Assignment), this Agreement binds and benefits each Party and its respective successors and assigns.
• Subcontracting. Company may subcontract its performance hereunder to its Affiliates, provided: (a) such Affiliates agree to be bound by the provisions of this Agreement; and (b) Company shall remain primarily responsible and liable for its Affiliates’ compliance as if it were the acts or omissions of Company.
• Company Contracting Entity and Governing Law. The Pentera entity entering into the Agreement shall be the entity stated in the Order Form.  The law that will govern the Agreement and that will apply in the event of any dispute or lawsuit arising out of or in connection with the Agreement, including any question regarding its existence, validity or termination, and the competent courts that have exclusive jurisdiction over any such dispute or lawsuit, depends on the Company entity stated in the Order Form, as follows:

The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. NO JURY TRIALS. EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO TRIAL OF ANY ISSUE BY JURY. EXCEPT TO SEEK EQUITABLE RELIEF, OR TO OTHERWISE PROTECT OR ENFORCE A PARTY’S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS, NO ACTION, REGARDLESS OF FORM, UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE DATE ON WHICH THE CORRESPONDING LIABILITY AROSE.

• 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) the Parties agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction 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.
• Publicity. Customer agrees that Company may refer to Customer as a customer of Company, including by displaying Customer’s name and logo on Company’s website and in its promotional materials.
• No Reliance. The Services and any related representations and warranties are solely for the benefit of the Customer. Nothing herein expressed or implied shall give or be construed to give to any person, other than the parties hereto, any legal or equitable rights hereunder. Company assumes no liability to any third party because of any reliance on the representations, warranties and agreements of Customer with such third party based on this Agreement.
• Waiver and Remedies. No failure or delay on the part of the Company 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 Company, 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 the Company 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.
• Force Majeure. Company shall not have any liability, or otherwise be deemed in breach, for any performance (excluding payment obligations) under this Agreement that is prevented, hindered, or delayed by reason of an event of Force Majeure (defined below). Company shall be excused from such performance to the extent that, and for so long as, performance is prevented, interrupted, or delayed by the Force Majeure. If and when performance is resumed, all dates specified under this Agreement shall be automatically adjusted to reflect the period of such prevention, interruption, or delay by reason of such 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, or failure of (or delay in) delivery by Company’s suppliers or carriers; (c) invasion, war (declared or undeclared), terrorism, riot, insurrection, 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 Company.
• Relationship. The relationship of the Parties is solely that of independent contractors, and nothing in this Agreement shall be construed to create a relationship of employer and employee, principal and agent, joint venture, partnership, franchise, association, or otherwise between the Parties. Neither Party shall have any right, power or authority to do (or purport to have the right, power or authority to do) any of the following: (i) undertake, incur, or assume any obligation, liability or commitment on behalf of the other Party; or (ii) make or offer any promises, representations, warranties, or guarantees about the Work Product or the other Party.
• Notices. Except as may be specified otherwise in this Agreement, all notices, consents, or other communications provided for in connection with this Agreement shall be in writing, and shall be deemed given upon: (a) personal delivery; (b) the second business day after mailing via registered or certified mail with postage prepaid and return receipt requested; (c) upon delivery confirmation by nationally recognized overnight delivery service (“Courier“); (d) the first business day after sending by email.
• Expenses. Except as expressly stated otherwise in this Agreement, each Party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, and performance of this Agreement.
• Export Compliance. Customer represents and warrants that: (a) it is not a resident of (or will use the Services, Deliverables, Company Background IPR, or related documentation in) a country that the U.S. government has embargoed for use of the Services, Deliverables, Company Background IPR, or related documentation, nor is an entity named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) its country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address provided to Company. Customer shall not transfer, export, re-export, import, re-import or divert the Background IP of the Company in violation of any Export Control Laws (defined below). “Export Control Laws” means all applicable export and re-export control Laws applicable to a Party and/or its Affiliates (such as those of the State of Israel), as well as the United States’ Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.