Siemplify Services Agreement

Last Modified: February 23, 2022

This Siemplify Services Agreement (the “Agreement”) is entered into by Siemplify and the entity or person agreeing to these terms (“Customer”). “Siemplify” means either Cyarx, Inc., Cyarx Technologies Uk Ltd. and/or Cyarx Technologies Ltd., as applicable. This Agreement is effective as of the date Customer clicks to accept the Agreement or otherwise agrees to the Agreement by using the Services or Software (the “Effective Date”).

If you are accepting on behalf of Customer, you represent and warrant that: (i) you have full legal authority to bind Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement. If you do not have the legal authority to bind Customer, please do not click to accept. This Agreement governs Customer’s access to and use of the Services.

If you signed an offline variant of this Agreement for use of the Services and/or Software under the same Account, the terms below do not apply to you, and your offline terms govern your use of the Services and/or Software.

  1. 1. The Services

    1. 1.1     Services. Siemplify will provide the Services specified in an Order Form in accordance with the Agreement, including the SLAs, and Customer and its End Users may use the Services in accordance with the Agreement.

      1.2     Account. Siemplify will provide Customer the ability to access the Account. Customer is responsible for (a) maintaining the confidentiality and security of the Account and associated passwords and (b) any use of the Account.

      1.3     Ceasing Services Use. Customer may stop using the Services at any time.
  2. 2. Customer Obligations

    1. 2.1    Consents. Customer is responsible for any consents and notices required to permit (a) Customer’s use and receipt of the Services and (b) Siemplify’s accessing, storing, and processing of data provided by Customer (including Customer Data, if applicable) under the Agreement.

      2.2    Compliance. Customer will (a) ensure that Customer and its End Users’ use of the Services complies with the Agreement, (b) use commercially reasonable efforts to prevent and terminate any unauthorized access or use of the Services, and (c) promptly notify Siemplify of any unauthorized use of, or access to, the Services of which Customer becomes aware.

      2.3    Use Restrictions. Customer will not, and will not allow End Users to, (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any of the source code of the Services (except to the extent such restriction is expressly prohibited by applicable law); (b) sell, resell, sublicense, transfer, or distribute the Services; or (c) access or use the Services (i) for High Risk Activities; (ii) in a manner intended to avoid incurring Fees; (iii) for materials or activities that are subject to the International Traffic in Arms Regulations (ITAR) maintained by the United States Department of State; (iv) in a manner that breaches, or causes the breach of, Export Control Laws; or (v) to transmit, store, or process health information subject to United States HIPAA regulations. Customer may only use the Services to access and use Customer Data to detect and prevent cyber threats in support of Customer’s internal security for Customer’s internal benefit or for the benefit of its managed service provider users. Customer will not allow anyone other than its managed service provider and/or internal security team to use the Services.

      2.4    Cooperation. To facilitate Siemplify’s performance of its obligations under the Agreement and the proper provision of the Services, Customer and its End Users will work in close cooperation with Siemplify to provide and share Performance Information at its disposal. If Customer licensed Software, Customer shall facilitate Siemplify’s remote access to the Software deployed at Customer’s site or premises for the purpose of Siemplify obtaining Performance Information. If customer uses the Services, Customer will allow Siemplify to access Customer’s account for the purpose of Siemplify obtaining Performance Information. To the extent that Customer fails to provide the foregoing, Siemplify shall be excused from the performance of its obligations hereunder, insofar as such performance is frustrated by Customer’s failure to so provide the foregoing.

      2.5    Output Data. Customer assumes sole and exclusive responsibility: (i) for all acts or omissions, that Customers or others on its behalf engage in, in response to the Output Data; (ii) to thoroughly review the Output Data frequently, check for any alerts or warnings issued by the Software or Services, address the findings specified in the Output Data and determine what actions are appropriate in light thereof; and (iii) to carry out such actions as Customer deems appropriate as a result of the Output Data. Siemplify has no responsibility or liability, regarding the Customer’s reliance upon, or use of, the Output Data, Customer's actions or omissions in connection with the Output Data, or any consequences resulting therefrom.

      2.6    Related Systems. Customer acknowledges that given the nature of the Services and/or Software, the use, operation and performance of the Services and/or Software relies on the availability and proper configuration of the Related Systems. Customer acknowledges and agrees that in order to use the Services and/or Software, Customer has to acquire and properly manage and configure such Related Systems, at its own responsibility, cost and expense.
  3. 3. Data Privacy and Security

    1. 3.1    Protection of Customer Data. Siemplify will only access or use Customer Data to provide the Services and Siemplify Technical Support Services ordered by Customer and will not use it for any other Siemplify products, services, or advertising. Siemplify has implemented and will maintain administrative, physical, and technical safeguards to protect Customer Data, as further described in the Data Processing and Security Terms.

      3.2    Data Processing and Security Terms. The Data Processing and Security Terms are incorporated by reference into this Agreement.
  4. 4. Payment Terms

    1. 4.1    Orders via Reseller. If Customer orders the Services from Reseller, then: (a) fees for the Services will be set between Customer and Reseller, and any payments will be made directly to Reseller under the Reseller Agreement, (b) the remaining provisions in this Section 4 (Payment Terms) will not apply to the Services, and (c) Siemplify may share Customer Confidential Information with Reseller as a Delegate subject to Section 10 (Confidentiality) of this Agreement.

      4.2    Invoicing and Payment. Siemplify will invoice Customer for the Fees. Siemplify’s measurement tools will be used to determine Customer’s usage of the Services. Each invoice will include data in sufficient detail to allow Customer to validate the Services purchased and associated Fees. Customer will pay Siemplify all invoiced amounts by the Payment Due Date. All payments are due in the currency described in the invoice. Wire transfer payments must include the bank information described in the invoice. Unless otherwise provided in the Agreement or required by law, Fees for Services are nonrefundable. Customer hereby consents to receiving invoices from and agrees to pay Fees to Google, LLC or its Affiliates. should Siemplify provide notice in writing that it desires Customer to make any payments due under this Agreement to Google.

      4.3    Taxes. Siemplify will itemize any invoiced Taxes. Customer will pay invoiced Taxes unless Customer provides a valid tax exemption certificate. Customer may withhold Taxes if Customer provides a valid receipt evidencing the taxes withheld.

      4.4    Invoice Disputes. Customer must submit any invoice disputes to Siemplify before the Payment Due Date. If the parties determine that Fees were incorrectly invoiced, then Siemplify will issue a credit equal to the agreed amount.

      4.5    Overdue Payments.

            (a)   If Customer’s payment is overdue, then Siemplify may (i) charge interest on overdue amounts at 1.5% per month (or the highest rate permitted by law, if less) from the Payment Due Date until paid in full, and (ii) Suspend the Services if Customer’s payment is overdue for more than 14 days after the Payment Due Date. Siemplify will notify Customer at least 7 days before such suspension.

            (b)   Customer will reimburse Siemplify for all reasonable expenses (including attorneys’ fees) incurred by Siemplify in collecting overdue payments except where such payments are due to Siemplify’s billing inaccuracies.

      4.6    Purchase Orders. If Customer requires a purchase order number on its invoice, Customer will provide a purchase order number in the Order Form. If Customer does not provide a purchase order number, then (a) Siemplify will invoice Customer without a purchase order number, and (b) Customer will pay invoices without a purchase order number referenced. Any terms on a purchase order are void.

      4.7    Credit Limit. Customer’s use of Services may not exceed its aggregate credit limit as determined by Siemplify in its reasonable discretion (and made available if requested), and Siemplify will not be obligated to provide services to Customer in excess of such credit limit. Siemplify may revise Customer’s credit limit in its reasonable discretion. Siemplify will provide notice seven days prior to reducing Customer’s credit limit, and will provide the rationale for such reduction. If Siemplify determines that Customer is at risk of non-payment, then Siemplify may (a) increase invoice frequency, (b) require prepayments, (c) reduce payment terms, (d) request financial statements, (e) require financial guarantees such as deposits or bank guarantees, or (f) apply a credit order hold.
  5. 5. Intellectual Property

    1. 5.1    Intellectual Property Rights. Except as expressly described in the Agreement, the Agreement does not grant either party any rights, implied or otherwise, to the other’s content or Intellectual Property. As between the parties, Customer retains all Intellectual Property Rights in Customer Data and Siemplify and its Affiliates retain all Intellectual Property Rights in the Services and Software.

      5.2    Feedback. At its option, Customer may provide feedback and suggestions about the Services to Siemplify (“Feedback”). If Customer provides Feedback, then Siemplify and its Affiliates may use that Feedback without restriction and without obligation to Customer.
  6. 6. Updates to the Services and Terms

    1. 6.1    Changes to Services.

            (a)   Limitations on Changes. Siemplify may update the Services, provided the updates do not result in a material reduction of the functionality, performance, availability, or security of the Services.

            (b)   Discontinuance. Siemplify will notify Customer at least 12 months before discontinuing any Service (or associated material functionality) unless Siemplify replaces such discontinued Service or functionality with a materially similar Service or functionality.

            (c)   Support. Siemplify will continue to provide product and security updates, and Siemplify Technical Support Services, until the conclusion of the applicable notice period under subsection (b) (Discontinuance).

            (d)   Backwards Incompatible Changes. Siemplify will notify Customer at least 12 months before significantly modifying a Customer-facing Siemplify API in a backwards-incompatible manner.

      6.2    Changes to Terms. Siemplify may update the URL Terms, provided the updates do not (a) result in a material reduction of the security of the Services, (b) expand the scope of or remove any restrictions on Siemplify’s processing of Customer Data as described in the Data Processing and Security Terms, or (c) have a material adverse impact on Customer’s rights under the URL Terms. Siemplify will notify Customer of any material updates to URL Terms.

      6.3    Permitted Changes. Sections 6.1 (Changes to Services) and 6.2 (Changes to Terms) do not limit Siemplify’s ability to make changes required to comply with applicable law or address a material security risk, or that are applicable to new or pre-general availability Services, offerings, or functionality.
  7. 7. Temporary Suspension

    1. 7.1    Services Suspension. Siemplify may Suspend Services if (a) necessary to comply with law or protect the Services or Siemplify’s infrastructure supporting the Services or (b) Customer or any End User’s use of the Services does not comply with the AUP, and it is not cured following notice from Siemplify.

      7.2    Limitations on Services Suspensions. If Siemplify Suspends Services under Section 7.1 (Services Suspension), then (a) Siemplify will provide Customer notice of the cause for Suspension without undue delay, to the extent legally permitted, and (b) the Suspension will be to the minimum extent and for the shortest duration required to resolve the cause for Suspension.
  8. 8. Technical Support

    1. Siemplify will provide Siemplify Technical Support Services to Customer during the Order Term in accordance with the Siemplify Technical Support Services Guidelines.
  9. 9. Software

    1. 9.1    Provision of Software. Siemplify may make Software available to Customer, including third-party software. Customer’s use of any Software is subject to the applicable provisions in this Agreement and/or Order Form.

      9.2    Ceasing Software Use. If the Agreement or the Order Form terminates or expires, then Customer will stop using the Software.

      9.3    Installation of the Software. Customer may procure professional services and Siemplify will endeavor to perform such professional services in accordance with the deployment scheme indicated in the Order Form.

      9.4    Open Source Software. The Software may use or include open source software components (“OSS”). To the extent so stipulated by the license that governs each OSS ("OSS License"), each such OSS is subject to its respective OSS License, not this Agreement, and is licensed to Customer directly by its respective licensor, not sublicensed by Siemplify. If, and to the extent, an OSS License requires that this Agreement effectively impose, or incorporate by reference, certain disclaimers, provisions, prohibitions or restrictions, then such disclaimers, provisions, prohibitions or restrictions shall be deemed to be imposed, or incorporated by reference into this Agreement, as required, and shall supersede any conflicting provision of this Agreement, solely with respect to the corresponding OSS which is governed by such OSS License.
  10. 10. Confidentiality

    1. 10.1    Use and Disclosure of Confidential Information. The Recipient will only use the Disclosing Party’s Confidential Information to exercise its rights and fulfill its obligations under the Agreement, and will use reasonable care to protect against the disclosure of the Disclosing Party’s Confidential Information. Notwithstanding any other provision in the Agreement, the Recipient may disclose the Disclosing Party’s Confidential Information (a) to its Delegates who have a need to know and who are bound by confidentiality obligations at least as protective as those in this Section 10 (Confidentiality); (b) with the Disclosing Party’s written consent; or (c) subject to Section 10.2 (Legal Process), as strictly necessary to comply with Legal Process.

      10.2    Legal Process. If the Recipient receives Legal Process for the Disclosing Party’s Confidential Information, the Recipient will: (a) promptly notify the Disclosing Party prior to such disclosure unless the Recipient is legally prohibited from doing so; (b) attempt to redirect the third party to request it from the Disclosing Party directly; (c) comply with the Disclosing Party’s reasonable requests to oppose disclosure of its Confidential Information; and (d) use commercially reasonable efforts to object to, or limit or modify, any Legal Process that the Recipient reasonably determines is overbroad, disproportionate, incompatible with applicable law, or otherwise unlawful. To facilitate the request in (b), the Recipient may provide the Disclosing Party’s basic contact information to the third party.
  11. 11. Marketing and Publicity

    1. Customer may state publicly that it is a Siemplify customer and display Siemplify Brand Features in accordance with the Trademark Guidelines. Siemplify may use Customer's name and Brand Features in online or offline promotional materials of the Services. Each party may use the other party’s Brand Features only as permitted in the Agreement. Any use of a party’s Brand Features will inure to the benefit of the party holding Intellectual Property Rights to those Brand Features.
  12. 12. Representations and Warranties

    1. Each party represents and warrants that it (a) has full power and authority to enter into the Agreement and (b) will comply with all laws and regulations applicable to its provision, receipt, or use of the Services, as applicable.
  13. 13. Disclaimer

    1. Except as expressly provided for in the Agreement, to the fullest extent permitted by applicable law, Siemplify and its Affiliates (a) do not make any warranties of any kind, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular use, noninfringement, or error-free or uninterrupted use of the Services or Software and (b) makes no representation about content or information accessible through the Services.
  14. 14. Indemnification

    1. 14.1    Siemplify Indemnification Obligations. Siemplify will defend Customer and its Covered Affiliates (“Customer Indemnified Parties”), and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from an allegation that the use of Siemplify Indemnified Materials used in accordance with the Agreement infringe the third party’s Intellectual Property Rights.

      14.2    Customer Indemnification Obligations. Customer will defend Siemplify and its Affiliates providing the Services and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from (a) any Customer Indemnified Materials or (b) Customer’s or an End User’s use of the Services in breach of the AUP or the Use Restrictions.

      14.3    Indemnification Exclusions. Sections 14.1 (Siemplify Indemnification Obligations) and 14.2 (Customer Indemnification Obligations) will not apply to the extent the underlying allegation arises from (a) the indemnified party’s breach of the Agreement or (b) a combination of the Siemplify Indemnified Materials or Customer Indemnified Materials (as applicable) with materials not provided by the indemnifying party under the Agreement, unless the combination is required by the Agreement.

      14.4    Indemnification Conditions. Sections 14.1 (Siemplify Indemnification Obligations) and 14.2 (Customer Indemnification Obligations) are conditioned on the following:

            (a)   The indemnified party must promptly notify the indemnifying party in writing of any allegation(s) that preceded the Third-Party Legal Proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s) and Third-Party Legal Proceeding. If breach of this Section 14.4(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party’s obligations under Section 14.1 (Siemplify Indemnification Obligations) or 14.2 (Customer Indemnification Obligations) (as applicable) will be reduced in proportion to the prejudice.

            (b)   The indemnified party must tender sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.

      14.5    Remedies.

            (a)   If Siemplify reasonably believes the Services might infringe a third party’s Intellectual Property Rights, then Siemplify may, at its sole option and expense, (i) procure the right for Customer to continue using the Services, (ii) modify the Services to make them non-infringing without materially reducing their functionality, or (iii) replace the Services with a non-infringing, functionally equivalent alternative.

            (b)   If Siemplify does not believe the remedies in Section 14.5(a) are commercially reasonable, then Siemplify may Suspend or terminate the impacted Services.

      14.6    Sole Rights and Obligations. Without affecting either party’s termination or Suspension rights, this Section 14 (Indemnification) states the parties’ sole and exclusive remedy under the Agreement for any third-party allegations of Intellectual Property Rights infringement covered by this Section 14 (Indemnification).
  15. 15. Liability

    1. 15.1    Limited Liabilities.

            (a)   To the extent permitted by applicable law and subject to Section 15.2 (Unlimited Liabilities), neither party will have any Liability arising out of or relating to the Agreement for any
               (i)indirect, consequential, special, incidental, or punitive damages or
               (ii)lost revenues, profits, savings, or goodwill.

            (b)   Each party’s total aggregate Liability for damages arising out of or relating to the Agreement is limited to the Fees Customer paid under the Agreement during the 12 month period before the event giving rise to Liability.

      15.2    Unlimited Liabilities. Nothing in the Agreement excludes or limits either party’s Liability for:

            (a)    death, personal injury, or tangible personal property damage resulting from its negligence or the negligence of its employees or agents;

            (b)    its fraud or fraudulent misrepresentation;

            (c)    its obligations under Section 14 (Indemnification);

            (d)    its infringement of the other party’s Intellectual Property Rights;

            (e)    its payment obligations under the Agreement; or

            (f)    matters for which liability cannot be excluded or limited under applicable law.
  16. 16. Term and Termination

    1. 16.1    Agreement Term. The Agreement is effective from the Effective Date until it is terminated in accordance with its terms (the “Term”). Unless otherwise agreed in an Order Form, at the end of the Order Term, the Services will automatically renew for an additional Order Term of 12 months, unless either party provides the other party with notice of non-renewal at least 30 days prior to the end of the then-current Order Term. Siemplify may update the Price for an Order Term by providing notice at least 60 days prior to the start of that Order Term. Any updates to the price pursuant to the preceding sentence will apply to all following Order Terms unless otherwise updated by Siemplify under the preceding sentence.

      16.2    Termination for Convenience. Subject to any financial commitments in an Order Form or addendum to the Agreement, Customer may terminate the Agreement or an Order Form for convenience with 30 days’ prior written notice to Siemplify.

      16.3    Termination for Breach. Either party may terminate the Agreement if the other party (a) is in material breach of this Agreement and fails to cure that breach within 30 days after receipt of written notice, (b) ceases its business operations, or (c) becomes subject to insolvency proceedings and such proceedings are not dismissed within 90 days.

      16.4    Effects of Termination. If the Agreement terminates, then all Order Forms also terminate. If the Agreement terminates or expires, then all rights and access to the Services under the Agreement will terminate (including access to Customer Data, if applicable), unless otherwise described in the Agreement. If an Order Form terminates or expires, then after that Order Form’s termination or expiration effective date, (a) all rights and access to the Services under that Order Form will terminate (including access to Customer Data, if applicable), unless otherwise described in the Agreement, and (b) Siemplify will send Customer a final invoice (if applicable) for payment obligations under that Order Form. Termination or expiration of one Order Form will not affect other Order Forms.

      16.5    Survival. The following Sections will survive expiration or termination of the Agreement: Section 4 (Payment Terms), Section 5 (Intellectual Property), Section 10 (Confidentiality), Section 13 (Disclaimer), Section 14 (Indemnification), Section 15 (Liability), Section 16 (Term and Termination), Section 17 (Miscellaneous), Section 18 (Definitions).
  17. 17. Miscellaneous

    1. 17.1    Notices. Under the Agreement, notices to Customer must be sent to the Notification Email Address and notices to Siemplify must be sent to siemplify-gtm@google.com. Notice will be treated as received when the email is sent. Customer is responsible for keeping its Notification Email Address current throughout the Term.

      17.2    Emails. The parties may use emails to satisfy written approval and consent requirements under the Agreement.

      17.3    Assignment. Neither party may assign the Agreement without the written consent of the other, except to an Affiliate where (a) the assignee has agreed in writing to be bound by the terms of the Agreement, (b) the assigning party has notified the other party of the assignment, and (c) if Customer is the assigning party, the assignee is established in the same country as Customer. Any other attempt to assign is void.

      17.4    Change of Control. If a party experiences a change of Control other than an internal restructuring or reorganization, then (a) that party will give written notice to the other party within 30 days after the change of Control and (b) the other party may immediately terminate the Agreement any time within 30 days after it receives that written notice.

      17.5    Force Majeure. Neither party will be liable for failure or delay in performance of its obligations to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, terrorism, riots, or war.

      17.6    Subcontracting. Siemplify may subcontract obligations under the Agreement but will remain liable to Customer for any subcontracted obligations.

      17.7    No Agency. The Agreement does not create any agency, partnership, or joint venture between the parties.

      17.8    No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under the Agreement.

      17.9    Severability. If any part of the Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.

      17.10    No Third-Party Beneficiaries. The Agreement does not confer any rights or benefits to any third party unless it expressly states that it does.

      17.11    Equitable Relief. Nothing in the Agreement will limit either party’s ability to seek equitable relief.

      17.12    Governing Law.

            (a)    For U.S. City, County, and State Government Entities. If Customer is a U.S. city, county, or state government entity, then the Agreement will be silent regarding governing law and venue.

            (b)    For U.S. Federal Government Entities. If Customer is a U.S. federal government entity, then the following applies: ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES OF AMERICA, EXCLUDING ITS CONFLICT OF LAWS RULES. SOLELY TO THE EXTENT PERMITTED BY FEDERAL LAW, (I) THE LAWS OF THE STATE OF CALIFORNIA (EXCLUDING CALIFORNIA'S CONFLICT OF LAWS RULES) WILL APPLY IN THE ABSENCE OF APPLICABLE FEDERAL LAW; AND (II) FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN SANTA CLARA COUNTY, CALIFORNIA.

            (c)    For All Other Entities. If Customer is any entity not stated in Section 17.12(a) or (b) then the following applies: ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING THAT STATE'S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA, USA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.

      17.13    Amendments. Except as specifically described otherwise in the Agreement, any amendment to the Agreement must be in writing, expressly state that it is amending the Agreement, and be signed by both parties.

      17.14    Independent Development. Nothing in the Agreement will be construed to limit or restrict either party from independently developing, providing, or acquiring any materials, services, products, programs, or technology that are similar to the subject of the Agreement, provided that the party does not breach its obligations under the Agreement in doing so.

      17.15    Entire Agreement. The Agreement states all terms agreed between the parties, and supersedes any prior or contemporaneous agreements between the parties relating to the subject matter of the Agreement. In entering into the Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently), except those expressly described in the Agreement. The URL Terms are incorporated by reference into the Agreement.

      17.16    Conflicting Terms. If there is a conflict among the documents that make up the Agreement, then the documents will control in the following order (of decreasing precedence): the applicable Order Form, the Data Processing and Security Terms, this Agreement, and the other URL Terms.

      17.17    Conflicting Languages. If the Agreement is translated into any other language, and there is a discrepancy between the English text and the translated text, the English text will control.

      17.18    Counterparts. The parties may execute the Agreement in counterparts, including facsimile, PDF, and other electronic copies, which taken together will constitute one instrument.

      17.19    Electronic Signatures. The parties consent to electronic signatures.

      17.20    Headers. Headings and captions used in the Agreement are for reference purposes only and will not have any effect on the interpretation of the Agreement.
  18. 18. Definitions

    1. “Account” means the account that Siemplify assigns to Customer to access the Services.

      “Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.

      “AUP” means the then-current acceptable use policy for the Services described at https://chronicle.security/legal/acceptable-use-policy where references to “Chronicle” are deemed to be references to Siemplify

      “Brand Features” means each party’s trade names, trademarks, logos, domain names, and other distinctive brand features.

      “Siemplify API” means any application programming interface provided by Siemplify as part of the Services.

      “Siemplify Indemnified Materials” means the Services and Siemplify’s Brand Features.

      “Siemplify Technical Support Services” or “Siemplify TSS” means the then-current technical support service provided by Siemplify to Customer under the Siemplify Technical Support Services Guidelines.

      “Siemplify Technical Support Services Guidelines” means the then-current Siemplify support package tier procured by Customer under the applicable Order Form. t

      “Confidential Information” means information that one party or its Affiliate (“Disclosing Party”) discloses to the other party (“Recipient”) under the Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. Customer Data is Customer’s Confidential Information. Confidential Information does not include information that is independently developed by the Recipient, is shared with the Recipient by a third party without confidentiality obligations, or is or becomes public through no fault of the Recipient.

      “Control” means control of greater than 50% of the voting rights or equity interests of a party.

      “Covered Affiliate” ​​means an Affiliate using the Services under Customer’s Account.

      “Customer Data” means data provided to Siemplify by Customer or End Users through the Services under the Account, and data that Customer or End Users derive from that data through their use of the Services.

      “Customer Indemnified Materials” means Customer Data and Customer Brand Features.

      “Data Processing and Security Terms” means the terms stated at www.siemplify.co/dpst/

      “Delegates” means the Recipient’s employees, Affiliates, agents, or professional advisors.

      “End User” or “Customer End User” means an individual that Customer permits to use the Services. For clarity, End Users may include employees of Customer Affiliates and other authorized third parties.

      “Export Control Laws” means all applicable export and re-export control laws and regulations, including (a) the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, (b) trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, and (c) the International Traffic in Arms Regulations (“ITAR”) maintained by the U.S. Department of State.

      “Fees” means the product of the amount of Services used or ordered by Customer multiplied by the Prices, plus any applicable Taxes.

      “High Risk Activities” means activities where the use or failure of the Services would reasonably be expected to result in death, serious personal injury, or severe environmental or property damage (such as the creation or operation of weaponry).

      “HIPAA” means the Health Insurance Portability and Accountability Act of 1996 as it may be amended from time to time, and any regulations issued under it.

      “including” means including but not limited to.

      “Indemnified Liabilities” means any (a) settlement amounts approved by the indemnifying party, and (b) damages and costs finally awarded against the indemnified party by a court of competent jurisdiction.

      “Intellectual Property” or “IP” means anything protectable by an Intellectual Property Right.

      “Intellectual Property Right(s)” means all patent rights, copyrights, trademark rights, rights in trade secrets (if any), design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (registered or unregistered) throughout the world.

      “Legal Process” means an information disclosure request made under law, governmental regulation, court order, subpoena, warrant, or other valid legal authority, legal procedure, or similar process.

      “Liability” means any liability, whether under contract, tort (including negligence), or otherwise, regardless of whether foreseeable or contemplated by the parties.

      “Notification Email Address” means any of the following: the email address designated by Customer; the email address provided by Customer to Reseller, if applicable; the email address provided by Customer when accepting this Agreement; or the email address for Customer’s primary contact.

      “Order Form” means a quote issued by Siemplify to Customer specifying the Services Siemplify will provide to Customer under this Agreement, including Professional Services, if any. If Customer orders the Services from Reseller, the Order Form means the document(s) exchanged between the Reseller and Siemplify specifying the Services Siemplify will provide to Customer under this Agreement.

      “Output Data” means the reports, alerts, notices and other types of information and data that the Services and/or Software may generate.

      “Order Term” means the period of time starting on the Services Start Date for the Services and continuing for the period indicated on the Order Form unless terminated in accordance with the Agreement.

      “Payment Due Date” means 30 days from the invoice date.

      “Performance Information” means the Output Data and any information about Customer’s use of the Services and/or Software, including Services and/or Software’s performance, compatibility, interoperability, bugs, errors and malfunctions, in connection with Customer’s use of the Services and/or Software, the architecture and layout of the Related Systems and the Services and/or Software’s functions and processes as carried out with respect to the Related Systems.

      “Prices” means the prices for the Services or Software described in an Order Form or amendment to this Agreement.

      “Related Systems” means Customer’s IT systems that are directly or indirectly connected with or monitored by the Services and/or Software.

      “Reseller” means, if applicable, the authorized non-Affiliate third party reseller that sells the Services to Customer.

      “Reseller Agreement” means the separate agreement between Customer and Reseller regarding the Services. The Reseller Agreement is independent of and outside the scope of this Agreement.

      “Services” means the then-current Siemplify’s cloud-based Security, Orchestration, Automation and Response platform], excluding any Third-Party Offerings.

      “Services Start Date” means either the start date described in the Order Form or, in the absence of any such date, the date Siemplify makes the Services available to Customer.

      “SLA” means the then-current service level agreements provided separately to the Customer.

      “Software” means any downloadable tools, software development kits, or other such computer software provided by Siemplify for use in connection with the Services, and any updates Siemplify may make to such Software from time to time, excluding any Third-Party Offerings.

      “Suspend” or “Suspension” means disabling or limiting access to or use of the Services or components of the Services.

      “Taxes” means all government-imposed taxes, except for taxes based on Siemplify’s net income, net worth, asset value, property value, or employment.

      “Third-Party Legal Proceeding” means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).

      “Third-Party Offerings” means third-party services, software, products, and other offerings that are not incorporated into the Services or Software.

      “Trademark Guidelines” means Siemplify’s Brand Terms and Conditions described at https://www.google.com/permissions/trademark/brand-terms.html where references to “Google” are deemed to be references to Siemplify) and the Guidelines for Third Party Use of Siemplify Brand Features which will be provided upon request.

      “URL” means a uniform resource locator address to a site on the internet.

      “URL Terms” means the AUP,, Data Processing and Security Terms, Siemplify Technical Support Services Guidelines, and SLA.

      “Use Restrictions” means the restrictions in Section 2.3 (Use Restrictions).
  19. 19. Regional Terms

    1. Customer agrees to the following modifications to the Agreement if Customer orders Services from the applicable region as described below:

      If Customer’s billing address is in the Asia Pacific Region A new Section 16.6 is added:

      16.6 Termination Waiver. The parties agree that for the effectiveness of the termination clauses under the Agreement, to waive any provisions, procedures and operation of any applicable law to the extent that a court order is required for termination of the Agreement.
      If Customer’s billing address is in the Asia Pacific Region (excluding India) Section 4.3 (Taxes) is replaced as follows:

      4.3 Taxes. Siemplify will itemize any invoiced Taxes. If Taxes must be withheld from any payment to Siemplify, then Customer will increase the payment to Siemplify so that the net amount received by Siemplify is equal to the amount invoiced, without reduction for Taxes.

      The definition of "Taxes" under Section 18 (Definitions) is replaced as follows:

      "Taxes" means all government-imposed taxes, as per the applicable law associated with the rendering and performance of the Services, including but not limited to any duties, customs duties, and any direct or indirect taxes, including any related penalties or interest, except for taxes based on Siemplify profit.
      If Customer’s billing address is in the Asia Pacific Region or the Latin America Region (excluding Brazil) Section 17.12 is replaced as follows:

      17.12 Governing Law; Arbitration.

      (a) ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED SIEMPLIFY PRODUCTS OR SERVICES (INCLUDING ANY DISPUTE REGARDING THE INTERPRETATION OR PERFORMANCE OF THE AGREEMENT) ("Dispute") WILL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, USA, EXCLUDING CALIFORNIA'S CONFLICTS OF LAWS RULES.

      (b) The parties will try in good faith to settle any Dispute within 30 days after the Dispute arises. If the Dispute is not resolved within 30 days, it must be resolved by arbitration by the American Arbitration Association’s International Centre for Dispute Resolution in accordance with its Expedited Commercial Rules in force as of the date of this Agreement ("Rules").

      (c) The parties will mutually select one arbitrator. The arbitration will be conducted in English in Santa Clara County, California, USA.

      (d) Either party may apply to any competent court for injunctive relief necessary to protect its rights pending resolution of the arbitration. The arbitrator may order equitable or injunctive relief consistent with the remedies and limitations in the Agreement.

      (e) Subject to the confidentiality requirements in Subsection (g), either party may petition any competent court to issue any order necessary to protect that party's rights or property; this petition will not be considered a violation or waiver of this governing law and arbitration section and will not affect the arbitrator’s powers, including the power to review the judicial decision. The parties stipulate that the courts of Santa Clara County, California, USA, are competent to grant any order under this Subsection 17.12 (e).

      (f) The arbitral award will be final and binding on the parties and its execution may be presented in any competent court, including any court with jurisdiction over either party or any of its property.

      (g) Any arbitration proceeding conducted in accordance with this Section 17.12 (Governing Law; Arbitration) will be considered Confidential Information under Section 10 (Confidential Information), including: (i) the existence of, (ii) any information disclosed during, and (iii) any oral communications or documents related to the arbitration proceedings. In addition to the disclosure rights under Section 10 (Confidential Information), the parties may disclose the information described in this Subsection 17.12 (g) to a competent court as may be necessary to file any order under Subsection 17.12 (e) or execute any arbitral decision, but the parties must request that those judicial proceedings be conducted in camera (in private).

      (h) The parties will pay the arbitrator’s fees, the arbitrator's appointed experts' fees and expenses, and the arbitration center's administrative expenses in accordance with the Rules. In its final decision, the arbitrator will determine the non-prevailing party's obligation to reimburse the amount paid in advance by the prevailing party for these fees.

      (i) Each party will bear its own lawyers’ and experts’ fees and expenses, regardless of the arbitrator’s final decision regarding the Dispute.
      If Customer’s billing address is in Europe, the Middle East or Africa Section 4.3 (Taxes) is replaced as follows:

      4.3 Taxes. Siemplify will itemize any invoiced Taxes. Customer will pay invoiced amounts without any deduction or withholding.

      The definition of "Taxes" under Section 18 (Definitions) is replaced as follows:

      “Taxes” means any duties, customs fees, or taxes (other than taxes on Siemplify’s net income), including indirect taxes such as goods and services tax and value-added tax, associated with the purchase of the Services, and any related penalties or interest
  20. 20. Exhibit A

    1.  Professional Services This Professional Services Schedule applies to implementation and advisory services described in this Professional Services Schedule and the applicable Order Form (“Professional Services”). Terms defined in the Agreement apply to this Professional Services Schedule.



      1.   Professional Services.

      1.1  Provision of Professional Services. Siemplify will provide Professional Services, including Deliverables, to Customer, subject to Customer fulfilling its obligations under Section 2.1 (Cooperation).

      1.2  Personnel. Siemplify will determine which Personnel will perform the Professional Services. If Customer requests a change of Personnel and provides a reasonable and legal basis for such request, then Siemplify will use commercially reasonable efforts to replace the assigned Personnel with alternative Personnel.

      1.3  Compliance with Customer’s Onsite Policies and Procedures. Siemplify Personnel performing Professional Services at Customer’s facilities will comply with Customer’s reasonable onsite policies and procedures made known to Siemplify in writing in advance.

      2.    Customer Obligations.

      2.1  Cooperation. Customer will provide reasonable and timely cooperation in connection with Siemplify’s provision of the Professional Services. Siemplify will not be liable for a delay caused by Customer’s failure to provide Siemplify with the information, materials, consents, or access to Customer facilities, networks, or systems required for Siemplify to perform the Professional Services. If Siemplify informs Customer of such failure and Customer does not cure the failure within 30 days, then (a) Siemplify may terminate any incomplete Professional Services and (b) in addition to Fees in Section 6(b) (Effect on Payment), Customer will pay actual costs incurred by Siemplify for the canceled Professional Services.

      2.2  No Personal Data. Customer acknowledges that Siemplify does not need to process Personal Data to perform the Professional Services. Customer will not provide Siemplify with access to Personal Data unless the parties have agreed in a separate agreement on the scope of work and any terms applicable to Siemplify’s processing of such Personal Data.

      3.    Intellectual Property.

      3.1  Background IP. Customer owns all rights, title, and interest in Customer’s Background IP. Siemplify owns all rights, title, and interest in Siemplify’s Background IP. Customer grants Siemplify a license to use Customer’s Background IP to perform the Professional Services (with a right to sublicense to Siemplify Affiliates and subcontractors). Except for the license rights under Sections 3.2 (Siemplify Technology) and 3.3 (Deliverables), neither party will acquire any right, title, or interest in the other party’s Background IP under this Professional Services Schedule.

      3.2  Siemplify Technology. Siemplify owns all rights, title, and interest in Siemplify Technology. To the extent Siemplify Technology is incorporated into Deliverables, Siemplify grants Customer a limited, worldwide, non-exclusive, perpetual, non-transferable license (with the right to sublicense to Affiliates) to use the Siemplify Technology in connection with the Deliverables for Customer’s internal business purposes. This Professional Services Schedule does not grant Customer any right to use materials, products, or services that are made available to Siemplify customers under a separate agreement, license, or Professional Services Schedule.

      3.3  Deliverables. Siemplify grants Customer a limited, worldwide, non-exclusive, perpetual, fully-paid, non-transferable license (with the right to sublicense to Affiliates) to use, reproduce, and modify the Deliverables for Customer’s internal business purposes.

      4.    Warranties and Remedies.

      4.1  Professional Services Warranty. Siemplify will perform the Professional Services in a professional and workmanlike manner, in accordance with practices used by other service providers performing services similar to the Professional Services. Siemplify will use Personnel with requisite skills, experience, and qualifications to perform the Professional Services.

      4.2  Remedies. Siemplify’s entire liability and Customer’s sole remedy for Siemplify’s failure to provide Professional Services that conform with Section 4.1 (Professional Services Warranty) will be for Siemplify to, at its option, (a) use commercially reasonable efforts to re-perform the Professional Services or (b) terminate the the applicable Order Form and refund any applicable Fees received for the nonconforming Professional Services. Any claim that Siemplify has breached the warranty as described in Section 4.1 (Professional Services Warranty) must be made within 30 days after Siemplify has performed the Professional Services.

      5.    Indemnification.

      5.1  Indemnification Exclusions. Agreement Sections 14.1 (Siemplify Indemnification Obligations) and 14.2 (Customer Indemnification Obligations) will not apply to the extent the underlying allegation arises from (a) modifications to the Siemplify Indemnified Materials or Customer Indemnified Materials (as applicable) by anyone other than the indemnifying party or (b) compliance with the indemnified party’s instructions, design, or request for customized features.

      5.2  Infringement Remedies. The remedies described in Agreement Section 14.5 (Remedies) also apply to Deliverables.

      6.    Effects of Termination. If this Professional Services Schedule or a Order Form under this Professional Services Schedule expires or terminates, then:

      (a)   Effect on Professional Services. The rights under the Agreement granted by one party to the other regarding the Professional Services will cease immediately except as described in this Section 6 (Effects of Termination), and Siemplify will stop work on the Professional Services.

      (b)   Effect on Payment. Customer will pay for (i) Professional Services, including work-in-progress, performed before the effective date of termination or expiration and (ii) any remaining non-cancellable Fees. Siemplify will send Customer a final invoice for payment obligations under the Order Form.

      (c)   Survival. The following Sections of this Schedule will survive expiration or termination of this Professional Services Schedule: 3 (Intellectual Property), 5 (Indemnification), 6 (Effects of Termination), and 9 (Additional Definitions).

      7.    Insurance. During the term of the Agreement, each party will maintain, at its own expense, appropriate insurance coverage applicable to performance of the party’s respective obligations under the Agreement, including general commercial liability, workers’ compensation, automobile liability, and professional liability.

      8.    Termination of Previous Agreements. If Siemplify and Customer have previously entered into an agreement for Siemplify to perform similar Professional Services (including a Professional Services Agreement), then that agreement will terminate on the date of the last party’s signature effectuating the Agreement, and the Agreement will govern the provision and use of the Professional Services going forward.

      9.    Additional Definitions.

      Background IP” means all Intellectual Property Rights owned or licensed by a party (a) before the effective date of the applicable Order Form or (b) independent of the Professional Services.

      Customer Indemnified Materials” means (a) Customer Background IP and any other information, materials, or technology provided to Siemplify by Customer in connection with the Professional Services (in each case, excluding any open source software) and (b) Customer’s Brand Features. Customer Indemnified Materials do not include Siemplify Technology or Deliverables.

      Deliverables” means work product created specifically for a Customer by Siemplify’s Personnel as part of the Professional Services and specified as Deliverables in the applicable Order Form.

      Siemplify Indemnified Materials” means (a) Deliverables and Siemplify Technology (in each case, excluding any open source software) or (b) Siemplify’s Brand Features. Siemplify Indemnified Materials do not include Customer Background IP.

      Siemplify Technology” means (a) Siemplify Background IP; (b) all Intellectual Property and know-how applicable to Siemplify products and services; and (c) tools, code, algorithms, modules, materials, documentation, reports, and technology developed in connection with the Professional Services that have general application to Siemplify’s other customers, including derivatives of and improvements to Siemplify’s Background IP. Siemplify Technology does not include Customer Background IP or Customer Confidential Information.

      Notification Email Address” means the email address(es) designated by Customer.

      Personal Data” means personal data that (a) has the meaning given to it in (i) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (“EU GDPR”) or (ii) the EU GDPR as amended and incorporated into UK law under the UK European Union (Withdrawal) Act 2018, if in force (“UK GDPR”), as applicable; and (b) would cause Google to be subject to the EU GDPR or the UK GDPR (as applicable) as a data processor for Customer.

      Personnel” means a party’s and its Affiliates’ respective directors, officers, employees, agents, and subcontractors.