CAREFULLY READ THIS ENTERPRISE AGREEMENT (“AGREEMENT”) BEFORE CLICKING THE “ACCEPT” BUTTON. THE AFFIRMATIVE ACT OF CLICKING ACCEPT, USING THE PRODUCT(S) OR EXECUTING AN ORDER WITH EXABEAM, INC. (“EXABEAM”) OR ITS AUTHORIZED PARTNER MEANS YOU ACCEPT THE PRODUCT(S), AND YOU AGREE TO BE BOUND BY THIS AGREEMENT AS OF THAT DATE (“EFFECTIVE DATE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF ANOTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS (“CUSTOMER”). IF YOU AS CUSTOMER DO NOT HAVE SUCH AUTHORITY OR DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND CUSTOMER MAY NOT USE THE PRODUCT(S).
CUSTOMER MAY HAVE A WRITTEN AND SIGNED CONTRACT WITH EXABEAM THAT SUPPLEMENTS OR SUPERSEDES ALL OR PORTIONS OF THIS AGREEMENT. IF NO SUCH AGREEMENT EXISTS, THEN THE PARTIES AGREE THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PROPOSALS AND ALL PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF.
IF CUSTOMER IS EVALUATING THE PRODUCT(S) FOR COMMERCIAL USE, THEN THE TERMS OF THE EXABEAM PILOT AGREEMENT (HTTP://WWW.EXABEAM.COM/PILOT-AGREEMENT/) MUST BE REVIEWED BEFORE USE OF THE PRODUCT(S). IF THE PILOT AGREEMENT IS APPLICABLE TO CUSTOMER’S USE, THEN BETWEEN THE PILOT AGREEMENT AND AGREEMENT, THE PILOT AGREEMENT CONTROLS.
1.1 “Confidential Information” means any and all information related to a party’s business (including software, source code and specifications, trade secrets, technical information, business forecasts and strategies, personnel information and proprietary information of third parties provided to the other party in confidence) that is labeled or identified as “confidential” or “proprietary”; and if disclosed orally or otherwise in intangible form, is confirmed as such in writing within thirty (30) days of such disclosure; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary. Without limiting the foregoing, all software and Documentation shall be deemed the “Confidential Information” of EXABEAM.
1.2. “Configuration Support” means the training for use of the Product and/or support specific to configuring the Product to operate in CUSTOMER’S environment.
1.3 “Documentation” means EXABEAM’s published user and administration manuals and other documentation for the Product furnished to CUSTOMER.
1.4 “Order” means a purchase order issued by CUSTOMER or similar document that has been accepted by EXABEAM, or an EXABEAM channel partner on EXABEAM’s behalf, for ordering Product and/or Support Services and obligating CUSTOMER for the associated fees.
1.5 “Product” means the proprietary hardware and/or software set forth in an Order as delivered by EXABEAM, which includes Updates and Upgrades.
1.6 “Subscription” means the provision of software Product licenses, Documentation and Support Services for the term purchased by CUSTOMER for the Subscription Fee as described in an Order.
1.7 “Subscription Fee” shall mean the annual fee for Subscription specified in an Order.
1.8 “Support Services” means the provision of Technical Support and Configuration Support.
1.9 “Technical Support” means the services for Error correction and delivery of Updates and Upgrades as set forth in Schedule A (as such terms are defined therein).
2. RIGHTS AND RESTRICTIONS
2.1 LICENSE. Subject to the terms and conditions of this Agreement, EXABEAM hereby grants to CUSTOMER a non-exclusive, nontransferable (except as set forth in Section 9.4) license to perform and display the software Product, in object code form only, subject to the Subscription Term, usage metrics and limitations set forth in the applicable Order.
2.2 RESTRICTIONS. CUSTOMER agrees not to: (1) modify, disassemble, reverse engineer, adapt, alter, translate, or create derivative works from the Product; (2) merge the software Product with any other software; (3) distribute, sublicense, lease, rent, loan, or otherwise transfer the Product to any third party; (4) use the Product other than as described in the Documentation; (5) use the software Product on or with any system for which it was not intended (pre-installed software Product shall remain in hardware Product); or (6) use the Product in any time-sharing, outsourcing, service bureau, hosting, application service provider or managed service provider environment. CUSTOMER shall not remove, alter, or obscure in any way the proprietary rights notices of EXABEAM or its suppliers contained on or within the Product or Documentation.
2.3 OWNERSHIP. As between CUSTOMER and EXABEAM, except for the license expressly granted to CUSTOMER in Section 2.1, EXABEAM and its licensors retain all right, title and interest in and to the software Product. There are no implied licenses, and all rights not expressly granted hereunder are reserved to EXABEAM and its licensors.
3. DELIVERY; SUBSCRIPTION; SUPPORT SERVICES
3.1 DELIVERY. All Products will be shipped FOB Origin. Delivery of the software Product occurs when the software Product is made available for download.
3.2 SUBSCRIPTION. The term for Subscription shall begin on the date of an Order, if not otherwise specified in said Order or quote referenced by said Order, and continue for the length of time as specified in said Order (the “Initial Subscription Period”). If a term for the Initial Subscription Period is not set forth in the applicable Order, then the Initial Subscription Period shall be one (1) year. Thereafter, EXABEAM shall provide CUSTOMER written notice of a renewal prior to expiration, and the renewal of a Subscription shall only be for one (1) year at the end of the Initial Subscription Period and every annual anniversary thereof (each a “Renewal Subscription Period” and together with the Initial Subscription Period the “Subscription Term”).
3.3 SUPPORT SERVICES. CUSTOMER is responsible only for pre-approved travel and accommodation expenses of EXABEAM personnel providing Support Services. If CUSTOMER agrees to said pre-approved expenses, then CUSTOMER shall pay EXABEAM any nonrefundable associated travel charges for CUSTOMER’s cancellation of travel less than one (1) week prior to the agreed work start date.
3.3.1 TECHNICAL SUPPORT. EXABEAM agrees to provide Technical Support to CUSTOMER for the Subscription Term unless otherwise agreed to in an Order.
3.3.2 CONFIGURATION SUPPORT. Configuration Support shall be provided for terms and fees agreed to in an Order.
3.4 RESTRICTIONS. EXABEAM shall have no responsibility to provide Support Services for Product: (i) modified or altered by CUSTOMER or any third party if not at the express, written direction of EXABEAM; (ii) due to failure by computer hardware, equipment or software not provided by EXABEAM; (iii) due to accident, neglect, misuse or improper use; or (iv) that requires application management services.
4. FEES AND PAYMENTS
4.1 PAYMENT TERMS. In consideration of the Product and Support Services obligations provided to CUSTOMER, CUSTOMER shall pay all invoices issued for this Agreement as set forth in an accepted Order. If payment of any fee is overdue, EXABEAM may: (i) suspend licenses, provision of the Support Services and/or cancel the Subscription or Subscription renewal related to the overdue fee until such delinquency is corrected; and/or (ii) following repeated failed attempts by EXABEAM to collect such overdue fee, report CUSTOMER to credit reporting agencies with respect to such overdue fee.
4.2 CHANNEL. For payments to an EXABEAM channel partner, payment terms shall be as agreed to by CUSTOMER and said channel partner.
4.3 DIRECT. For payments to EXABEAM, the following shall apply: (1) fees shall be paid in U.S. dollars within thirty (30) days of CUSTOMER’s receipt of invoice if not otherwise stated in an Order; (2) one-time and Subscription Fee shall be invoiced and payable on the date an Order is accepted; (3) Renewal Subscription Periods shall be invoiced at least thirty (30) days, but no less than applicable payment terms, before the end of the then-current Subscription; (4) all amounts that are not paid to EXABEAM by CUSTOMER when due shall be subject to a late charge equal to one percent (1.0%) per month, or, if less, the maximum amount allowed by applicable law, calculated on the outstanding balance from the due date until the date of full payment; and (5) in the event that CUSTOMER requires EXABEAM to use CUSTOMER’S vendor management service in connection with the ordering, invoicing, and/or payment process and such vendor management service imposes a service charge upon EXABEAM for the use of the service, EXABEAM may invoice CUSTOMER a fee to offset the service charge(s) from CUSTOMER’s vendor management service. All Orders placed directly with EXABEAM shall be subject to EXABEAM’s written acceptance, and no Order shall be binding upon EXABEAM until the earlier of the date of EXABEAM’s written acceptance of such Order or the date of delivery of the applicable Product or Support Services included in such Order.
4.4 TAXES. For payments to EXABEAM, CUSTOMER shall be responsible for payment of all taxes (other than taxes based on EXABEAM’s income), fees, duties, and other governmental charges, and any related penalties and interest, arising from any payments due to EXABEAM under this Agreement or the delivery of the Product to, license of the software Product to, or performance of any Support Services for, CUSTOMER, but only if invoiced by EXABEAM. CUSTOMER shall make all payments to EXABEAM free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments to EXABEAM shall be CUSTOMER’s sole responsibility, and CUSTOMER shall provide EXABEAM with official receipts issued by the appropriate taxing authority, or such other documentary evidence that EXABEAM may reasonably request, to establish that such taxes have been paid.
4.5 AUDIT. During the term of this Agreement and for a period of one (1) year thereafter: (1) CUSTOMER shall maintain complete and accurate written records of its Product use solely for EXABEAM confirming compliance with the usage metrics in the Order(s); and (2) EXABEAM shall have the right, no more than once per year, during normal business hours and upon at least thirty (30) days’ prior written notice, to inspect and audit said records to verify that CUSTOMER has paid the correct amounts owed under this Agreement and complied with the usage metrics and limitations in the applicable Order(s). In the course of conducting the audit, EXABEAM shall abide by CUSTOMER’s standard site access rules and regulations, and shall take steps to minimize any disruption to the normal conduct of CUSTOMER’s business. The audit shall be conducted at EXABEAM’s expense. If the audit reveals any amounts owed for any billing period, CUSTOMER shall promptly pay such amounts plus the applicable late fees.
5. TERM AND TERMINATION
5.1 TERM. This Agreement shall enter into effect upon the Effective Date and continue in full force and effect until terminated by either party as expressly permitted by this Agreement. A Subscription Term shall continue until expiration or termination as defined in an Order or as permitted by this Agreement.
5.2 TERMINATION. Either party has the right to terminate this Agreement immediately upon written notice if: (1) there are no active Subscriptions or Support Services; or (2) the other party breaches a material term of this Agreement (including the obligation to make payments when due) and fails to cure such breach within thirty (30) days after written notice of breach by the non-breaching party. Notwithstanding the foregoing, EXABEAM shall have the right to terminate this Agreement immediately upon written notice if CUSTOMER breaches Section 2.2 (Restrictions) or 2.3 (Ownership).
5.3 EFFECT OF TERMINATION. Upon the expiration or any termination of this Agreement, all licenses granted hereunder shall immediately terminate and the parties shall return or destroy all copies of the other party’s Confidential Information. Sections 1 (Definitions), 2.2 (Restrictions), 2.3 overdue fee, report CUSTOMER to credit reporting agencies with respect to such overdue fee. (Ownership), 4 (Fees and Payments), 5.3 (Effect of Termination), 6.1 (Hardware Warranty), 6.5 (Disclaimer), 8 (Limitation of Liability), 9 (General), and any payment obligations that accrued prior to termination of this Agreement shall survive any such termination.
6. REPRESENTATIONS AND WARRANTIES
6.1 HARDWARE WARRANTY. EXABEAM offers the limited hardware warranty of this Section for a period of: (1) three (3) years from CUSTOMER’s purchase of a hardware Product; and (2) one (1) year from CUSTOMER’s purchase of hardware components not pre-installed with purchase of the hardware Product (e.g. additional drives) (collectively, “Hardware”). EXABEAM warrants that the Hardware will be free from defects in workmanship. EXABEAM will repair or replace the Hardware, at EXABEAM’s option. This warranty is contingent upon: (a) proper use of the Hardware as set forth in the applicable Documentation; (b) use of the then-current Return Merchandise Authorization process as prescribed by EXABEAM; and (c) warranty claims must be reported to EXABEAM during the warranty period. The warranty shall not apply to any failure caused by: (i) neglect; misuse; fluctuations in electrical power beyond specifications; failure of air conditioning or humidity control; (ii) any equipment or software used with the Hardware that is not furnished by EXABEAM; or (iii) alteration or repair of the Hardware by anyone other than EXABEAM or as authorized in writing by EXABEAM.
6.2 SOFTWARE WARRANTY. EXABEAM warrants that the software Product, when used as permitted under this Agreement and in accordance with the Documentation, shall operate substantially as described in the Documentation. If the software Product fails to conform to the foregoing warranty, EXABEAM shall, as its sole obligation for breach of this warranty, correct any reproducible nonconformity in the software Product reported in writing to EXABEAM by CUSTOMER during the applicable Subscription.
6.3 SERVICES. EXABEAM represents it and EXABEAM’s contractors and agents have the necessary knowledge, skills, expertise and training to provide the Support Services, and shall carry out all Support Services in a diligent, prompt, and professional manner.
6.4 VIRUSES. The term “Virus” means any computer code designed to: (1) disrupt, disable, harm, or otherwise impede the licensed operation of a computer program or computer system; (2) provide unauthorized access to a computer program or computer system; or (3) damage or destroy any data files residing on a computer system. Prior to delivery, EXABEAM shall scan the software Product with a commercially-available antivirus program before delivery to protect against any Virus. If CUSTOMER demonstrates that the software Product as supplied by EXABEAM contains a Virus, then EXABEAM shall: (i) promptly provide CUSTOMER with such pertinent information as may be in EXABEAM’s possession about the infection of the software Product by the Virus to mitigate the detrimental effects of the Virus; and (ii) deliver a replacement of the software Product free of the identified Virus.
6.5 DISCLAIMER. EXCEPT TO THE EXTENT EXPRESSLY SET FORTH ABOVE IN THIS SECTION 6, EXABEAM EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES AND CONDITIONS WITH RESPECT TO THE PRODUCT AND ALL MATERIALS OR SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.1 INDEMNITY. EXABEAM shall:
7.1.1 Defend and hold harmless CUSTOMER from any third-party claim, suit, or proceeding alleging that the Product, unmodified and as originally delivered, when used as permitted under this Agreement and in accordance with the Documentation, and the licenses granted hereunder, infringes or misappropriates any third-party patent issued as of the Effective Date or copyright (a “Claim”); and
7.1.2 Indemnify CUSTOMER for all settlement amounts agreed to by the litigants or damages finally awarded or assessed by a court of competent jurisdiction for a Claim.
7.2 EXCLUSIONS. EXABEAM shall have no obligations under this section with respect to any Claims that arise from or relate to: (1) any modifications to the Product created by any party other than EXABEAM if not at the express direction of EXABEAM; (2) any combination of the Product with any third-party hardware, software, or other materials where such combination is the object of the Claim; or (3) the use of any version of the Product other than the latest version made available to CUSTOMER by EXABEAM.
7.3 MITIGATION. If any element of the Product has become, or if EXABEAM reasonably believes is about to become, the subject of a Claim, EXABEAM may, at its sole option: (1) obtain a license to permit CUSTOMER to use the Product in accordance with this Agreement; (2) modify the Product in a manner such that it is no longer infringing but maintains substantially the same functionality; or (3) terminate CUSTOMER’s right to use all or part of the Product in exchange for a refund of fees paid, less a prorated deduction to reflect past beneficial use calculated: (i) for the software Product as the remainder of any pre-paid Subscription; and (ii) for the hardware Product on a straight-line basis assuming a useful life of three (3) years.
7.4 PROCEDURES. CUSTOMER must: (1) promptly notify EXABEAM in writing of any Claim; (2) tender control of the defense and settlement of such Claim to EXABEAM, provided that EXABEAM may not enter into any settlement adversely affecting CUSTOMER’s interests without CUSTOMER’s prior written consent; and (3) reasonably cooperate with EXABEAM in such defense at EXABEAM’s expense. CUSTOMER shall have the right to participate in the defense at its own expense with counsel of its choice. The indemnity in this Section 7 states CUSTOMER’s sole and exclusive remedy, and EXABEAM’s entire liability, for infringement of third-party intellectual property rights arising from or related to this Agreement.
8. LIMITATION OF LIABILITY
8.1 DAMAGES. EXCEPT FOR ANY INFRINGEMENTS OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING ANY BREACH OF SECTIONS 2.2 OR 2.3), CUSTOMER’S PAYMENT OBLIGATIONS (SECTION 4), EXABEAM’S INDEMNIFICATION OBLIGATION (SECTION 7) OR BREACH OF CONFIDENTIALITY (SECTION 9.5), IN NO EVENT SHALL:
8.1.1 EITHER PARTY BE LIABLE FOR ANY LOST DATA, LOST PROFITS, SECURITY BREACH OR GOVERNMENTAL FINE, OR CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, ARISING FROM OR RELATING TO THIS AGREEMENT, EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
8.1.2 EITHER PARTY’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED A SUM EQUAL TO THE HIGHER OF EITHER: (1) THE TOTAL OF ALL FEES PAID BY CUSTOMER TO EXABEAM PURSUANT TO SECTION 4 (FEES AND PAYMENTS) DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT FIRST GIVING RISE TO LIABILITY; OR (2) ONE HUNDRED THOUSAND DOLLARS (U.S. $100,000). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM.
8.2 ACKNOWLEDGEMENT. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION 8 (LIMITATION OF LIABILITY): (1) REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY; AND (2) WILL APPLY EVEN IF ANY EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE DISCLAIMER OF WARRANTY AND LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT WILL APPLY ONLY TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AND NOTHING IN THIS AGREEMENT PURPORTS TO LIMIT EITHER PARTY’S LIABILITY IN A MANNER THAT WOULD BE UNENFORCEABLE OR VOID AS AGAINST PUBLIC POLICY IN THE APPLICABLE JURISDICTION.
9.1 PARTY RELATIONSHIP. The parties are and at all times shall be and remain licensor and licensee as to each other, and at no time shall either party be deemed to be the agent or employee of the other. No joint venture, partnership, agency, or other relationship shall be created or implied as a result of this Agreement. Furthermore, neither party shall have the authority to, and shall not purport to, enter into any contract or commitment on behalf of the other party.
9.2 GOVERNING LAW. This Agreement, and any and all actions arising from or in any manner affecting the interpretation of this Agreement, shall be governed by, and construed solely in accordance with, the laws of the State of California, without giving effect to any conflicts of laws principles that would require the application of the laws of a different jurisdiction. Except for the right of either party to apply to a court for a temporary restraining order, a preliminary injunction, or other equitable relief, the parties consent to the exclusive jurisdiction and venue of the federal and state courts located in Santa Clara County, California for any action permitted under this Section, challenge to this Section, or judgment upon the award entered. The United Nations Convention on Contracts for the International Sale of Goods and Uniform Computer Information Transactions Act (UCITA), or any similar federal laws or regulations enacted, to the extent allowed by law shall not apply to this Agreement.
9.3 LAWS AND REGULATIONS
9.3.1 COMPLIANCE. The parties shall comply with all provisions of any applicable laws, regulations, rules, or orders relating to the rights granted herein and to the testing, production, transport, export, re-export, packaging, labeling, distribution, sale or other use of the Product, Support Services or as otherwise applicable to a party’s activities hereunder. The parties shall obtain such written assurances regarding export and re-export as may be required. With respect to any export transaction under this Agreement, EXABEAM shall cooperate with CUSTOMER to affect compliance with all applicable export regulation.
9.3.2 GOVERNMENT RESTRICTIONS. The software is comprised of “commercial items”, “commercial computer software”, and “commercial computer software documentation” as such terms are defined in FAR 2.101 and DFARS 252.227-7014(a)(1). The software is provided to any federal, state or local government agency only subject to the terms and conditions of this Agreement and such additional terms as are agreed by the parties in a properly executed writing and that are consistent with (a) the policies set forth in 48 C.F.R. 12.212 (for civilian agencies); or (b) the policies set forth in 48 C.F.R. 227.7202-1 and 22.7202-3 (for units of the Department of Defense).
9.4 ASSIGNMENT. CUSTOMER may not assign this Agreement (whether expressly, by implication, or by operation of law), or delegate its performance under this Agreement (either in whole or in part), to any third party without obtaining EXABEAM’s prior written consent. Notwithstanding the foregoing, either party may assign this Agreement in whole together with all rights and obligations under this Agreement, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the non-assigning party. Any purported transfer, assignment, or delegation in violation of this section shall be null and void when attempted and of no force or effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the successors and permitted assigns of EXABEAM and CUSTOMER.
9.5.1 Each party agrees: (1) to hold the other party’s Confidential Information in strict confidence; (2) not to disclose such Confidential Information to any third parties, except as described below; and (3) not to use any Confidential Information except to perform its obligations and exercise its rights under this Agreement. Each party may disclose the other party’s Confidential Information to its employees, contractors, agents, and professional advisors with a bona fide need to know the specific information in question in connection, but only to the extent necessary for such party’s performance of obligations or exercise of rights or under this Agreement and only if all such persons (i) have been instructed that such Confidential Information is subject to the obligation of confidence set forth by this Agreement and (ii) are bound either by contract, employment policies, or fiduciary or professional ethical obligation to maintain such information in confidence.
9.5.2 The restrictions set forth in this section shall not apply to any Confidential Information that the receiving party can demonstrate (1) was known to it prior to its disclosure by the disclosing party; (2) is or becomes publicly known through no wrongful act of the receiving party; (3) has been rightfully received from a third party authorized to make such disclosure without restriction; (4) is independently developed by the receiving party; or (5) has been approved for release by the disclosing party’s prior written authorization.
9.5.3 If a party is ordered by a court, administrative agency, or other governmental body of competent jurisdiction to disclose Confidential Information, or if it is served with or otherwise becomes aware of a motion or similar request that such an order be issued, then such party will not be liable to the other party for disclosure of Confidential Information required by such order if such party complies with the following requirements: (i) if an already-issued order calls for immediate disclosure, then such party immediately shall move for or otherwise request a stay of such order to permit the other party to respond as set forth in this paragraph; (ii) such party immediately shall notify the other party of the motion or order by the most expeditious possible means; (iii) such party shall not oppose a motion or similar request by the other party for an order protecting the confidentiality of the Confidential Information, including not opposing a motion for leave to intervene by the other party; and (iv) such party shall exercise its best efforts to obtain reasonable assurance that confidential treatment will be accorded the Confidential Information so disclosed.
9.5.4 The parties agree that a breach of this section may cause immediate and irreparable harm for which monetary damages would be an inadequate remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the disclosing party shall be entitled to seek equitable relief, including injunctive relief, from any court having jurisdiction, to protect its rights and interests pursuant to this section.
9.6 EQUITABLE RELIEF. CUSTOMER acknowledges that EXABEAM would suffer immediate and irreparable harm for which monetary damages would be an inadequate remedy if CUSTOMER were to breach its obligations under Sections 2.2 (Restrictions) or 2.3 (Ownership). CUSTOMER therefore expressly agrees that EXABEAM shall be entitled to obtain equitable relief, including injunctive relief, from any court having jurisdiction, to protect rights and interests in connection with Section 2 of this Agreement or in connection with any license restriction contained herein. Such remedy shall be in addition to such other remedies as may be available at law or in equity.
9.7 NOTICES. All notices permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, national express courier with a tracking system, or by certified or registered mail, return receipt requested. Notice of Subscription renewal may be provided by e-mail. Notices shall be deemed given, respectively, on the date of personal delivery, five (5) days after deposit in the mail, or on the date of delivery. Notices shall be addressed to “Legal” and sent to the then-current headquarters address of the applicable party. Either party may amend its address for notice upon written notice to the other.
9.8 WAIVERS; AMENDMENT. No waiver of any terms or conditions of this Agreement shall be valid or binding on a party unless such party makes the waiver in hardcopy writing signed by an authorized representative of that party. The failure of one party to enforce any of the provisions of this Agreement, or the failure to require at any time the performance of the other party of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of a party to enforce each and every provision thereafter. This Agreement may not be altered, amended, modified, or otherwise changed in any way except by a hardcopy written instrument signed by the authorized representatives of each party.
9.9 SEVERABILITY. If any provision of this Agreement is found or held to be invalid or unenforceable by any tribunal of competent jurisdiction, then the meaning of such provision shall be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it shall be severed from the remainder of this Agreement, which shall remain in full force and effect.
9.1O FORCE MAJEURE. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of: (1) any provision of any present or future law or regulation that applies to the subject matter hereof; or (2) strikes, shortages, riots, insurrection, fires, flood, storms, explosions, acts of God, war, government action, acts of terrorism, earthquakes, power outages or any other cause that is beyond the reasonable control of such party.
9.11 CONSTRUCTION. The headings of sections of this Agreement are included solely for convenience of reference and are not to be used to interpret, construe, define, or describe the scope of any aspect of this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” Each party represents that it has had the opportunity to participate in the preparation of this Agreement, and any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in connection with the construction or interpretation of this Agreement. Unless otherwise expressly stated to the contrary herein, all remedies are cumulative, and the exercise of any express remedy by either party herein does not by itself waive such party’s right to exercise its other rights and remedies available at law or in equity.
9.12 COUNTERPARTS; AUTHORIZATION; ENTIRE AGREEMENT. This Agreement may be executed in counterparts. Each party represents that the person signing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement on behalf of such party. This Agreement shall take precedence over any conflicting or inconsistent terms and conditions accompanying any Order or similar document submitted by CUSTOMER to EXABEAM.
9.13.1 GENERAL. CUSTOMER grants EXABEAM the non-exclusive right to use CUSTOMER’s trade and service marks (“Marks”) in accordance with CUSTOMER’s trademark usage guidelines, which may include a requirement for prior approval as to usage, and EXABEAM acknowledges that CUSTOMER may, from time to time, revise these trademark usage guidelines. EXABEAM agrees to cooperate with CUSTOMER in facilitating CUSTOMER’s monitoring and control of the nature and quality of marketing materials and to supply CUSTOMER with specimens of use of the Marks upon request, and to comply with any instructions of CUSTOMER in relation to Mark use. Notwithstanding the foregoing, EXABEAM may, without prior approval of the CUSTOMER, include CUSTOMER’s name and/or Marks in EXABEAM customer lists or like materials.
9.13.2 OWNERSHIP. EXABEAM acknowledges the validity of the Marks and CUSTOMER’s ownership thereof. EXABEAM shall not challenge CUSTOMER’s rights in any Marks that EXABEAM uses. All goodwill and reputation which accrues to any Marks in the course of EXABEAM promotion and licensing of the Products shall automatically vest in CUSTOMER without any separate or additional consideration of any kind to EXABEAM.
1. DEFINITIONS. Unless otherwise defined herein, capitalized terms used in this Schedule shall have the same meaning as set forth in the Agreement.
1.1 “Business Day” means Monday through Friday, other than any Federal holiday observed by EXABEAM.
1.2 “Error” means any failure of the Product to operate in material conformance with the applicable Documentation with the Severity Levels as set forth herein.
1.3 “Incident Report” or “IR” means the submission made by CUSTOMER to EXABEAM for the reporting of an Error as further set forth in Section 3 to this Schedule A.
1.4 “Level One” Technical Support means: (1) providing general product information, assisting with installation and configuration; (2) resolving known issues documented in EXABEAM’s public knowledge database and Documentation; and (3) collecting all relevant technical problem identification information, and answering all CUSTOMER usage questions.
1.5 “Level Two” Technical Support means: (1) completing Error isolation, Error replication, and identifying defects in Product specifications; (2) completing lab simulation and interoperability testing; (3) documenting Errors; (4) defining action plans; and (5) analyzing logs and traces.
1.6 “Level Three” Technical Support means: (1) diagnosing complex issues that are not already known to EXABEAM; (2) correcting Errors; (3) maintaining software Products; and (4) providing support that requires knowledge of the source code via phone or internet.
1.7 “Previous Sequential Release” means, at a given time, the release of software Product that has been replaced by the then-current release of the same software Product (e.g. version 3.0 >> 4.0). Notwithstanding anything else, a Previous Sequential Release will be supported by EXABEAM only for a period of twelve (12) months after release of the then current release.
1.8 “Resolution” shall mean a correction of an Error that restores a Product to full operation in conformance with Documentation.
1.9 “Severity Level” means the four (4) levels of Error severity as set forth in Section 4 herein.
1.10 “Community Portal” means the support web interface that can be accessed at https://community.exabeam.com/login.
1.11 “Telephone Support” means technical support telephone assistance provided by EXABEAM Technical Account Manager to CUSTOMER’s technical support contact for submitting IRs and troubleshooting Errors. The contact number for Telephone Support is: 877.237.6070.
1.12 “Temporary Solution” shall mean a temporary correction of an Error in order to restore a Product or the part thereof into operation.
1.13 “Update” means a generally-available release of a software Product modification, which may be designated by means of a change in the digits to the right of the first decimal point in the software Product version number (e.g. version 3.0 >> 3.1 or 3.0.1 or 3.0.0 Patch 1). Updates include the following:
1.13.1 Product Updates, which may include Error corrections; and
1.13.2 Content Updates, which may include for example: (1) Advanced Analytics – new standard use cases, rules, models and parsers; (2) Incident Responder – new standard playbooks & integrations; and (3) Log Manager – new data source parsers, visualizations, dashboards and standard reports.
1.14 “Upgrade” means a generally available release of the software Product that incorporates feature or function enhancements, extensions that is designated by means of a change in the digits to the left of the first decimal point in the software Product version number (e.g. version 3.0 >> 4.0).
2. TECHNICAL SUPPORT TIERS. Technical Support shall be for the then current release of the software Product and the Previous Sequential Release. Technical Support shall include:
2.1 STANDARD. Standard Technical Support shall include:
2.1.1 Access to and delivery of EXABEAM Community Portal and Telephone Support will be 24 hours a day 7 days a week;
2.1.2 Updates and Upgrades as released by EXABEAM;
2.1.3 Unlimited number of IR submissions; and
2.1.4 Community Portal access for additional Error reporting and follow up of any IR.
2.2 PREMIUM. If not otherwise set forth in the applicable Order, then to obtain Premium Technical Support CUSTOMER must purchase and maintain Premium Technical Support for each software Product included in the applicable Subscription. Each purchase of Premium Technical Support shall include all the benefits of Standard Technical Support and the following:
2.2.1 One (1) named EXABEAM Technical Account Manager assigned to CUSTOMER.
2.2.2 Tuning and customization not to exceed the greater of the then-current limits set forth at the Community Portal or the following (values are annual caps for each year of Subscription):
(i) Advanced Analytics – Tuning for up to twelve (12) additional use cases;
(ii) Data Lake – Tuning for up to twenty (20) additional data sources, one hundred (100) collectors, thirty (30) visualizations, ten (10) databases, and ten (10) custom reports; and
(iii) Incident Responder – Up to twelve (12) custom playbooks and ten (10) custom integrations.
2.2.3 ESCALATION. For Severity Level 1 and 2 Errors, CUSTOMER may request that EXABEAM initiate an escalation of the IR resolution (“Escalation”) with the following procedures:
(i) STATUS UPDATES. EXABEAM shall establish a schedule of status updated communications with their CUSTOMER counterpart that shall ensure timely exchange of information.
(ii) MONITOR PHASE. EXABEAM shall monitor the CUSTOMER’s Product deployment to verify that the IR has been resolved. Both parties shall coordinate monitoring activities for clear determination that a Resolution has been provided by EXABEAM.
3. INCIDENT REPORT.
3.1 Each submission of an IR shall contain the following information:
3.1.1 CUSTOMER contact;
3.1.2 Product identification;
3.1.3 CUSTOMER assigned Severity Level;
3.1.4 Short description of the Error and its impact on the Product’s performance;
3.1.5 Description of the commands and procedures that reveal the Error; and
3.1.6 The following additional information as requested by EXABEAM in follow up:
(i) Description of the hardware and software environment;
(ii) Specification of the release version and software patches of the relevant Product (or part thereof);
(iii) Specific examples of input and/or output;
(iv) Frequency and special circumstances surrounding the discovery of the Error.
3.2 For each submission of a complete IR, EXABEAM shall:
3.2.1 Confirm its receipt of the IR by e-mail or phone within the time periods set forth in Section 4 to this Schedule A. The confirmation shall contain the assigned IR number to be used in the subsequent communication between the parties for the applicable IR.
3.2.2 Analyze the IR, and verify the existence of the Error.
3.2.3 Confirm the Severity Level. After initial verification of the Error’s existence, EXABEAM will either accept CUSTOMER Severity Level classification or examine the Error with CUSTOMER to determine appropriate Severity Level based on effect of the Error to the CUSTOMER.
3.2.4 If a Temporary Solution or Resolution is not immediately available, then EXABEAM shall promptly provide CUSTOMER with timeframes for delivery of a Temporary Solution or Resolution.
4. SEVERITY LEVELS. IRs for all Severity Level 1 and 2 Errors must be reported by Telephone Support or in the Community Portal. IRs for Severity Level 3 and 4 Errors may be reported by Telephone Support or in the Community Portal. EXABEAM will exercise commercially reasonable efforts to correct any Error submitted by CUSTOMER in an IR in accordance with the following Severity Level descriptions:
|SEVERITY LEVEL||DESCRIPTION||STANDARD RESPONSE TIME||PREMIUM RESPONSE TIME||RESOLUTION COMMITMENT|
|1||An Error causing a core business impact to CUSTOMER manifested in a Product in a production environment.||1 Business Day||1 hour||EXABEAM will commit Level Two/Three resources to resolve. Customer shall commit the full-time resources during the hours of coverage to resolve the Error.|
|2||An Error causing a non-core business impact to CUSTOMER due to a significant loss of service manifested in a Product in a production environment, which means that the Product functions, but a certain feature is disabled, gives incorrect results or does not conform to the Documentation.||2 Business Days||4 hours||EXABEAM will commit Level Two/Three resources to resolve. Customer shall commit the necessary resources during the hours of coverage to resolve the Error.|
|3||An Error causing a minor business impact to CUSTOMER due to a minor loss of service in a production environment.||4 Business Days||2 Business Days||EXABEAM will commit Level One (and Level Two/Three as determined by EXABEAM) resources to resolve.|
|4||An Error causing no, or insignificant, work impediment to CUSTOMER, which would include feature requests.||10 Business Days||5 Business Days||EXABEAM will commit Level One resources to resolve.|
5. CUSTOMER OBLIGATION. To enable identification and correction of Errors, CUSTOMER is required to provide commercially reasonable assistance to the EXABEAM Technical Account Manager until the Error is resolved. Required assistance may include, but is not limited to, the following: (1) logging into CUSTOMER’s systems for diagnosis of problems; (2) downloading and installing of Updates or Upgrades; (3) collecting and sending system logs/files from the Product to EXABEAM; (4) modification of Product configuration; (5) re-installation of existing Product; and (6) assistance with installation of, and participating in, tests for Resolutions.
6. HARDWARE SUPPORT. EXABEAM will promptly remedy hardware Product defects by repairing or replacing any defective hardware Product upon return to a fulfillment center utilizing EXABEAM’s then-current Return Merchandise Authorization (“RMA”) process. The RMA process can be initiated by request through Telephone Support or Community Portal. An EXABEAM Technical Account Manager will assist CUSTOMER with completing the RMA process. EXABEAM is not liable for any data loss for any RMA hardware Products. All repaired or replaced hardware Product is warranted to be free of defects for the longer of: (i) applicable manufacturer’s warranty; (ii) thirty (30) calendar days from the date of the hardware Product return delivery to CUSTOMER; (iii) one (1) year component warranty for any third party products purchased for the repair; or (iv) the remainder of the hardware Product’s warranty period from EXABEAM.
6.1 WARRANTY REPAIR. EXABEAM shall, at its option, promptly repair or replace the hardware Product upon receipt of the RMA hardware Product. If the RMA process is initiated by CUSTOMER within ninety (90) days of first receipt (the “DOA Period”), a new hardware Product will be shipped to CUSTOMER. All shipping, repair and replacement costs will be carried by EXABEAM for the warranty period.
6.2 OUT-OF-WARRANTY REPAIR. Repairable hardware Products that are out of warranty and returned to EXABEAM for repair will be promptly repaired upon receipt of the RMA hardware Product. Defective third party products (e.g. SSDs; fans) shall be replaced. CUSTOMER will be charged for repair and replacement cost and two (2) labor hours per out-of-warranty RMA at labor cost specified at the time the RMA is initiated.
6.3 ADVANCED REPLACEMENT HARDWARE. EXABEAM may, in its sole discretion, ship an advanced replacement hardware Product to CUSTOMER before receipt of the RMA hardware Product. However, if an advanced replacement has been delivered to CUSTOMER and the RMA hardware Product has not arrived at the fulfillment center within fifteen (15) business days of CUSTOMER initiating the RMA, then CUSTOMER may, at EXABEAM discretion, be charged for the full price of the advanced replacement hardware Product.
6.4 EXTERNAL INSPECTION. RMA hardware Products will be inspected for any external damage or missing parts. If found, the external damaged or missing part will be automatically replaced if CUSTOMER has not otherwise instructed EXABEAM in the RMA. The cost of repair or replacement will only be carried by EXABEAM for RMA during the warranty period.
6.5 NO FAULT FOUND. If RMA hardware Product works in conformance to the Documentation when tested by EXABEAM, then EXABEAM shall inform CUSTOMER that no fault was found, and CUSTOMER shall carry the shipping, stocking and handling costs as out of warranty.