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Software Subscription Agreement (Hosted)

PLEASE READ THIS SOFTWARE SUBSCRIPTION AGREEMENT (HOSTED) (the “AGREEMENT”) CAREFULLY BEFORE USING THE SECLORE PRODUCTS THAT YOU OBTAINED FROM SECLORE OR AN AUTHORIZED RESELLER. THE TERMS AND CONDITIONS OF THIS AGREEMENT GOVERN YOUR USE OF THE SECLORE PRODUCTS UNLESS YOU AND SECLORE HAVE EXECUTED A SEPARATE AGREEMENT GOVERNING YOUR USE OF THE SECLORE PRODUCTS. BY CLICKING THE “I ACCEPT” BUTTON, YOU REPRESENT AND WARRANT TO SECLORE THAT YOU ARE AUTHORIZED BY YOUR COMPANY TO ENTER INTO THIS AGREEMENT. BY USING THE SECLORE PRODUCTS, YOU, ON BEHALF OF YOURSELF AND YOUR COMPANY, AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SECLORE PRODUCTS.

This Agreement is entered into by and between Seclore and you, on behalf of yourself and your company (collectively, “Customer”); each a “Party” and collectively the “Parties.”

Now, therefore, in consideration of the mutual covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

  1. DEFINITIONS
    1. Affiliate means any corporation or other business entity, now or hereafter existing, that controls, or is controlled by, or is under common control with a Party, and “Control” means ownership, directly or indirectly of 50% or more of the voting interest of the Party.
    2. Authorized Reseller means any of Seclore’s authorized resellers or other business partners.
    3. File Data means the information stored by Seclore as part of the Services, which provides for digital rights management of Files and is limited to (i) full name of Users and External Users; (ii) e-mail ID of Users and External Users; (iii) user ID of Users and External Users; (iv) IP Address of Users and External Users, (v) machine details of Users and External Users; (vi) activity date of Users and External Users (vii) password of External Users, (viii) File ID, and (ix) File Name, File permissions, encryption keys and activity logs of the Users and External users (which documents the Files accessed by a user and/or External User and actions performed by said user and/or External User on each File).
    4. Confidential Information means all non-public information disclosed by a Party to the other Party which: (i) is marked as “Confidential” or with a comparable legend if disclosed in written, graphic, machine readable or other tangible form, or (ii) is designated “Confidential” or comparable language at the time of disclosure and summarized in writing to the receiving Party within 10 calendar days after such disclosure. Confidential Information further includes without limitation, the Services and the terms and conditions of this Agreement. Confidential Information does not include information which: (a) is now generally known or available or which, hereafter through no act or failure to act on the part of recipient, becomes generally known or available; (b) is rightfully known to recipient at the time of receiving such information; (c) is furnished to recipient by a third Party without restriction on disclosure; or (d) is independently developed by recipient without having relied on the Confidential Information of the disclosing Party.
    5. Customer Application means an online application that Customer (or a third party acting on Customer’s behalf) creates and which interoperates with the Services and/or Software (if applicable) through its published Application Programming Interface (API).
    6. Customer Data means all electronic data or information which is stored in Files that are created by a User and where access to and control of such Files is managed by the Services.
    7. Effective Date means the date on which Customer accepts the terms of this Agreement.
    8. External User means an individual with whom a User intends to share protected files.
    9. Documentation means the files integrated into the Software under the “Help” menu delivered as part of the
      Software download package.
    10. File means any document, including without limitation e-mail, protected using the Services.
    11. Intellectual Property Rights means any intellectual property rights, including patents, utility models, rights in designs, copyrights, moral rights, topography rights, database rights, trademarks, service marks, trade secrets, and rights of confidence, in all cases whether or not registered or registerable in any country, and including the right to apply for the same and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these anywhere in the world from time to time.
    12. Malicious Code means viruses, worms, time bombs, trojan horses and other harmful or malicious code, files, scripts, agents or programs.
    13. Order Form means a Customer document(or, if Customer is purchasing the Services through an Authorised Reseller, such Authorised Reseller’s purchase order) which has been accepted by Seclore in writing (which may be via e-mail), and which identifies the subscription term, Services and/or Software, or, if applicable, NREs(as defined below), to be provided hereunder.
    14. Seclore means (i) Seclore Inc., if Customer has purchased Services in United States; (ii) Seclore Technology Private Limited, if Customer purchased the Services in India; (iii) Seclore Technologies FZ LLC, if Customer purchased Services in United Arab Emirates (UAE); (iv) Seclore GmbH, if Customer has purchased Services in Germany; and (v) Seclore Technology Private Limited, if Customer purchased Services in any other country other than United States, India, UAE or Germany.
    15. Seclore Agent means the software application used by Users and External Users to protect and share Files, as applicable, and which may be downloaded as a desktop or mobile application from Apple App Store or Google Play Store. Seclore Agent is licensed under the terms of a click-wrap agreement that requires acceptance prior to use.
    16. Services means the products and services that are ordered by Customer under an Order Form and made available by Seclore online via a customer login link. Services exclude Third Party Applications (as defined in Section 4 (Third Party Providers) below).
    17. Software means certain software programs, in binary-code version, including any updates thereto, that are delivered to Customer hereunder. Each Order Form sets forth the software components that Seclore has licensed to Customer under said Order Form.
    18. Support Services means Seclore’s standard support services and Service Level Agreements (SLAs) for the Services, which are detailed in Exhibit A hereto.
    19. User means one named individual authorized by Customer to use the Services and/or Software (if applicable) for the subscription term set out on the applicable Order Form, and who has been given a unique user identification by Customer. Under no circumstance may a User subscription be shared among or used by different individuals. Notwithstanding the foregoing, Customer may transfer a User subscription to another user, provided, that the current User no longer has an on-going need to use the Services.
    20. User Guide means the online user guide for the Services, as updated from time to time.
  1. SERVICES
    1. Provision of Services. Seclore shall make Services available to Customer pursuant to this Agreement and the applicable Order Form during each subscription term. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Seclore regarding future functionality or features. Exhibit A attached hereto, sets forth, inter alia, Support Services provided by Seclore in connection with the Services.
    2. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the applicable subscription term, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing User subscriptions. If during a subscription term, Customer is found to have more Users than Customer has purchased subscriptions for, Customer shall immediately pay applicable fees for such additional Users (it shall be deemed that such unreported Users have had access during the full subscription term).
    3. Seclore Responsibilities.
      1. Support Services. During the subscription term, Seclore shall provide Customer with Support Services in accordance with the Support Services plan purchased by Customer, as specified on the applicable Order Form. If the Support Services plan is not identified on the applicable Order Form, Customer shall receive the Standard Support Services. For the purpose of this Agreement, Standard Support Services means the standard Support Services provided by Seclore and identified in Exhibit A, (Summary of Support Services by Plan Type (Service Window)).
      2. Uptime commitment and Service Credits.
        1. Uptime Percentage. Seclore shall use commercially reasonable efforts to maintain an “Uptime Percentage” of at least 99.5%. Subject to the exceptions noted below, Uptime Percentage will be calculated by subtracting from 100%, the percentage of 1-minute periods during any calendar quarter (i.e., 3 calendar months) in which the Services are Unavailable. “Unavailable” or “Unavailability” means that in any 1-minute period, Customer is unable to access and/or protect Files. The Uptime Percentage shall be measured by Seclore in accordance with standard industry practices.
        2. Exclusions from Uptime Percentage. Notwithstanding anything to the contrary in this Agreement, or elsewhere, any Unavailability issues resulting from or connected to any of the following events will be excluded from the calculation of Uptime Percentage:
          1. any downtime during a planned maintenance window, or resulting from changes to Services requested by Customer,
          2. any unavailability caused by circumstances beyond Seclore’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving Seclore employees), Internet service provider and/or hosting service provider failures or delays, or denial of service attacks,
          3. Customer’s act or omissions including, but not limited to, failure of Customer’s Internet connectivity, Third Party Applications, or any network that is not owned or managed by Seclore.
        3. Service Credits. If Seclore does not meet the Uptime Percentage with respect to any particular calendar quarter, then as Customer’s sole and exclusive remedy for a breach of Section 2(c)(ii), Seclore will provide to Customer a service credit pursuant to the table below (“Service Credit”). Service Credits for each quarter can be claimed against the future payments.
    4. Customer Responsibilities. Customer shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Customer Data and of the means by which it acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services and/or Software (if applicable), and notify Seclore promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide (and where applicable, use Software in accordance with the Documentation), applicable laws and government regulations. Customer shall not (a) make the Services and/or Software (if applicable) available to anyone other than Users, (b) sell, resell, lend, rent, lease, distribute or otherwise transfer usage rights in the Services and/or Software (if applicable), (c) use the Services and/or Software (if applicable) to transmit infringing, libellous, or otherwise unlawful or tortious material, or to transmit material in violation of third-party privacy rights, (d) use the Services and/or Software (if applicable) to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services and/or Software (if applicable), (f) attempt to gain unauthorized access to the Services and/or Software(if applicable) or their related systems or network, or (g) perform any activities including, but not limited to, reverse engineering, load testing, vulnerability testing, etc., that can potentially disrupt the Services and/or Software (if applicable), without prior written consent from Seclore.
    5. Non-recurring Engineering. Seclore shall provide one-time, non-recurring (professional) engineering services specified in each statement of work (“NRE”). Customer agrees to provide reasonable cooperation for the NRE, including, without limitation, (i) performing the tasks Customer is responsible for performing in a timely manner, (ii) providing Seclore with the information it needs to perform in a timely manner, and (iii) as reasonably needed, providing access to Customer’s premises, services, and third-party software used in connection with the same. Except for Customer Confidential Information, Seclore will own all other right, title and interest in and to all NRE work product and related deliverables, including, without limitation, all intellectual property rights therein. In the event performance of Non-Recurring Services requires travel to Customer’s premises, upon mutual prior written agreement, Customer shall reimburse Seclore for reasonable documented travel (i.e., coach class) and related expenses. While on site at Customer’s facilities, Seclore will comply with Customer’s policies of which Seclore has been made aware in writing.
  1. SOFTWARE LICENSE
    1. License Rights. Subject to the terms and conditions of this Agreement, Seclore grants to Customer during the subscription term, a world-wide, non-exclusive and non-transferable license, without right of sublicense:
      (i) to permit the number of Users set forth on the applicable Order Form to use Software, if any, as identified on the applicable Order Form, (ii) to copy install and use quantity and type of Software, if any, as identified on the applicable Order Form, and (iii) where Customer has purchased an SDK (Software Development Kit) license, to copy, install and use the SDK solely for purposes of integrating Customer’s software application with the Software.
  1. THIRD PARTY PROVIDERS
    1. Acquisition of Third-Party Products and Services. From time to time, Seclore may recommend products or services for Customer to purchase or license from a third party outside of this Agreement (“Third Party Applications”). Acquisition by Customer of any Third-Party Applications, and any exchange of data between Customer and any Third-Party Application provider, is solely between Customer and the applicable Third- Party Application provider. Seclore does not warrant or support third party products or services, including without limitation, Third Party Applications, whether or not they are designated by Seclore as “approved”, ‘compatible” or otherwise. Subject to Section 4.c (Integration with Third Party Applications) below, no purchase of third-party products or services is required to use the Services except a supported computing device, operating system, web browser and Internet connection.
    2. Third Party Applications and Customer Data. If Customer installs or enables Third Party Applications for use with the Services, Customer acknowledges that Seclore may allow providers of those Third-Party Applications to access Customer Data and File Data, as required for the interoperation and support of such Third-Party Applications with the Services. Seclore shall not be responsible for any disclosure, modification or deletion of Customer Data and File Data resulting from any such access by Third Party Application providers.
    3. Integration with Third Party Applications. The Services may contain features designed to interoperate with Third Party Applications. To use such features, Customer may be required to obtain access to such Third- Party Applications from their providers. If the provider of any such Third-Party Application ceases to make the Third-Party Application available for interoperation with the corresponding Service features on reasonable terms, Seclore may cease providing such Service features without entitling Customer to any refund, credit, or other compensation.
  1. FEES AND PAYMENT
    1. Unless Customer has purchased Services through an Authorized Reseller (in which case Customer shall pay applicable fees to such Authorised Reseller pursuant to a separate agreement between Customer and such Authorized Reseller) Customer hereby acknowledges and agrees as follows:
      1. Fees. Customer shall pay fees as specified in any Order Form, future Order Forms and as otherwise expressly agreed in writing, signed by both parties. Except as otherwise specified herein; (i) fees are based on Services purchased and not actual usage; (ii) payment obligations are non-cancellable, and fees paid are non-refundable; and (iii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on annual subscription terms that begin on the subscription start date and renew on each yearly anniversary thereof; therefore, fees for User subscriptions added in the middle of the subscription term will be pro- rated to be co-terminus with the current subscription term.
      2. Invoicing and Payment. Fees will be invoiced in advance. Unless otherwise stated in an Order Form, fees shall be paid to Seclore (i) for subscriptions, within 30 days from date of the Order Form and each anniversary of the same, and (b) for NRE, 50% within 30 days from date of the Order Form and 50% upon completion of the same (“Payment Date”). Customer is responsible for providing complete and accurate billing and contact information to Seclore and notifying Seclore of any changes to such information.
      3. Overdue Charges. If any amounts invoiced hereunder are not received by Seclore by the Payment Date, then a service charge of 1.0% per month or the highest lawful interest rate, whichever is lower, shall be applied to all amounts which are not paid when due under this Agreement, accruing from the due date.
      4. Taxes. Unless otherwise provided or as required by the applicable jurisdiction, fees do not include taxes, and Customer is responsible for paying all taxes associated with its purchases hereunder, excluding any taxes based on Seclore’s net income or property.
    2. Suspension of Services. If any fees owing by Customer under this Agreement, to Seclore or an Authorized Reseller (in the event the Services are purchased via an Authorized Reseller), are 30 days or more overdue, Seclore may, without limiting its other rights and remedies, suspend Services until such amounts are paid in full, provided Seclore has given Customer at least 10 days’ prior written notice (which may be via e-mail) that its account is overdue. For avoidance of doubt, suspension of Services shall not release Customer of its payment obligations hereunder.
  1. PROPRIETARY RIGHTS; AFFILIATES
    1. Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, Seclore reserves all rights, title and interest in and to the Services and/or Software, including all related Intellectual Property Rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
    2. Restrictions. Customer shall not, directly or indirectly, (i) provide the Services and/or Software(if applicable) on a timesharing, service bureau, hosted, service provider or other similar basis; (ii) remove or alter any copyright, trademark or proprietary notice in or on the Services and/or Software (if applicable); (iii) access or study the Services and/or Software (if applicable) in order to (a) build a competitive product or services, or (b) copy any features, functions or graphics of the Services and/or Software(if applicable); (iv) modify, translate or create any derivative works based on the Services and/or Software(if applicable); (v) disclose, publish or otherwise make publicly available any benchmark, performance or comparison tests that Customer runs (or has run) on the Services and/or Software(if applicable); (vi) reverse engineer, decompile, disassemble, or otherwise attempt to reconstruct the source code of the Services and/or Software(if applicable); (vii) copy, frame or mirror any part or content of the Services and/or Software (if applicable), other than copying or framing on Customer’s own intranets or otherwise for its own internal business purposes.
    3. Ownership of Inventions, Suggestions. All works of authorship, inventions, discoveries, improvements, methods, processes, formulas, designs, techniques, and information conceived, discovered, developed or otherwise made by Seclore, solely or in collaboration with Customer, its Affiliates, and/or any third parties relating in any way to the Services and/or Software(if applicable), shall be the sole and exclusive property of Seclore. Customer hereby grants Seclore an irrevocable, royalty-free, unlimited, transferable, worldwide right and license to use, copy, modify, distribute, and make derivative works from any ideas, feedback, suggestions, enhancements, and/or recommendations provided by Customer or its Affiliates relating to the Services and/or Software(if applicable), provided Seclore does not disclose Customer Confidential Information, or personally identifiable information or personal data of Users and that Customer is not identified by Seclore as the provider of any feedback. Any suggestions or feedback are provided “As Is” without any warranty.
    4. Affiliates. Where, in accordance with the terms of the Order Form, Seclore extends Services to Customer’s Affiliate(s), said Affiliate(s) shall have the same usage rights as are granted to Customer, but only during such time as any such entity is an Affiliate of Customer. Customer shall be liable for the acts and omissions of its Affiliates. Any breach of this Agreement by an Affiliate of Customer shall entitle Seclore to terminate this Agreement in accordance with the terms of Section 11(c) (Termination Rights) as if Customer were the party in breach. Any termination of this Agreement shall be effective in respect to Customer and all its Affiliates.
  1. CONFIDENTIALITY
    1. Obligation. Seclore and Customer agree that for a period of 5 years after last receipt of the other Party’s Confidential Information, it will (i) use the other Party’s Confidential Information only in connection with fulfilling its rights and obligations under this Agreement and (ii) hold the other Party’s Confidential Information in strict confidence and exercise due care with respect to its handling and protection, consistent with its own policies concerning protection of its own Confidential Information of like importance but in no instance with less than reasonable care, such due care shall include without limitation, ensuring its employees, professional advisors and contractors are legally bound by confidentially obligations that are consistent with the terms and conditions of this Agreement and no less protective of each Party’s Intellectual Property Rights as set forth herein, before allowing such parties to have access to the Confidential Information of the other Party.
    2. Exceptions to Obligation. Notwithstanding Section 7(a) (Obligation), either Party may disclose Confidential Information to the extent required by law, provided the other Party uses commercially reasonable efforts to give the Party owning the Confidential Information sufficient notice of such required disclosure to allow the Party owning the Confidential Information reasonable opportunity to object to and to take legal action to prevent such disclosure.
  1. WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
    1. General Warranties. Each Party warrants that it has the legal power and authority to enter into and perform under this Agreement.
    2. Seclore Warranties. Seclore warrants for the sole benefit of Customer that (i) the Services shall perform materially in accordance with the User Guide; (ii) to the extent customer has received Software pursuant an Order Form, such Software shall perform materially in accordance with Documentation, (iii) subject to Section 4(c) (Integration with Third Party Applications), functionality of the Services will not be materially decreased during a subscription term, and (iii) it will not transmit Malicious Code to Customer, provided it is not a breach of this warranty, if Customer or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. For breach of a warranty set forth in Section 8(b), as Customer’s exclusive remedy and Seclore’s sole liability, Seclore shall correct non-confirming Services and/or Software(if applicable) at no additional charge to Customer, by providing Support Services as set forth in Exhibit A. In the event Seclore is unable to correct such deficiencies within 180 days by way of providing Support Services, Customer may, as its sole and exclusive remedy for a breach of warranty set forth in Section this 8(b), terminate this Agreement in accordance with Section 11(c)(Termination Rights) and if applicable, obtain refund in accordance with Section 11(d)(Refund or Payment upon Termination). To receive the foregoing remedy, Customer must promptly, and in any event no later than 5 business days of discovering a breach, provide written notification of such breach to Seclore (a “Breach Notification”). Each Breach Notification shall contain a description in sufficient detail to allow Seclore to reproduce the Breach and any further information reasonably requested by Seclore. The warranty set forth in this Section 8(b) shall apply only if (i) Customer is using latest version of the Services, and/or Software(if applicable), and Users and/or External Users are using the latest version of the Seclore Agent; and (ii) the Services have been utilized in accordance with the User Guide (or, in the case of Software, in accordance with the Documentation), this Agreement and applicable law.
    3. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8(b) (SECLORE WARRANTIES), SECLORE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL BE ERROR-FREE OR RUN FREE FROM INTERRUPTION AND THE SOFTWARE LICENSED HEREUNDER IS LICENSED “AS IS” WITHOUT WARRANTY OF ANY KIND. SECLORE MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
  1. MUTUAL INDEMNIFICATION
    1. Indemnification by Seclore. In the event of a suit against Customer for use of the Services and/or, if applicable, Software in accordance with the terms and conditions of this Agreement, based upon a claim that the Services and/or Software (if applicable) infringes any valid patent, trademark or copyright, or causes a misappropriation of any trade secret and subject to the limitations set forth in Section 10 (Limitation of Liability), Seclore shall defend and indemnify Customer and pay costs and damages finally awarded in any such suit or agreed in any settlement provided that, Seclore is promptly notified in writing of such claim and provided, further, that as a condition precedent to its indemnification obligation Seclore shall have the exclusive right to control such defence or settlement, and Customer shall provide reasonable assistance (at Seclore’s expense) in the defence of same. Customer may retain counsel, at its expense, to participate in the defence and settlement of any such claim. In no event shall Customer settle any claim, lawsuit or proceeding or make any admission of liability without Seclore’s prior written approval. The foregoing indemnity obligation shall not extend to any claims of infringement arising out of or related to (i) combination, operation or use of the Services and/or Software (if applicable) with any other products or services not supplied by Seclore including without limit Customer Applications, Third Party Applications, where such combination, operation or use is the cause of such infringement; (ii) modification of the Services and/or Software (if applicable) that was not made by Seclore, or was undertaken at the request of, or direction of, the Customer; (iii) Customer’s use of the Services and/or Software (if applicable) in a manner that does not comply with this Agreement, or is not authorized by Seclore; (iv) any claims for damages arising after Seclore’s notice to Customer that Customer should cease use of the Services and/or Software (if applicable); or (v) failure of Customer to use upgraded or modified Services and/or Software (if applicable) provided by Seclore to avoid infringement.
    2. Obligation to Correct Services. Upon notice of an alleged infringement of the Services and/or Software (if applicable) or if in Seclore’s reasonable opinion such a claim is likely, Seclore shall, at its sole option, obtain for Customer the right to continue use of the Services and/or Software (if applicable), substitute the Services and/or Software (if applicable) with similar operating capabilities, or modify the Services and/or Software (if applicable) so they are no longer infringing. In the event the foregoing options are not commercially practicable Seclore shall terminate Customer’s User subscriptions for such Services and/or Software (if applicable) upon 15 days’ written notice and refund to Customer the unused portion of any prepaid fees for the Services and/or Software (if applicable) or the affected part thereof.
    3. Indemnification by Customer. Customer shall defend Seclore against any claim, demand, suit or proceeding made or brought against Seclore by a third party alleging that the Customer Data, or Customer’s use of the Services and/or Software (if applicable) in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Seclore”), and shall indemnify Seclore for any damages, attorney fees and costs finally awarded against Seclore as a result of, or for any amounts paid by Seclore under a court-approved settlement of, a Claim Against Seclore; provided that Seclore (a) promptly gives Customer written notice of the Claim Against Seclore, (b) gives Customer sole control of the defence and settlement of the Claim Against Seclore, and (c) provides to Customer all reasonable assistance, at Customer’s expense.
    4. Exclusive Remedy. This Section 9 (Mutual Indemnification) states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of claim described in this Section.
  1. LIMITATION OF LIABILITY.
    1. Limitation on All Damages. IN NO EVENT SHALL SECLORE’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE FEES PAID FOR USE OF THE SERVICES IN THE 12 MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE DISPUTE.
    2. Disclaimer of Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ANY LOST PROFITS, REVENUE, OR DATA, INTERRUPTION OF BUSINESS OR FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS FOR THE SERVICES AND/OR SOFTWARE (IF APPLICABLE).
  1. TERM AND TERMINATION
    1. Term of Agreement. This Agreement commences on the Effective Date and continues in force until terminated in accordance with this Section 11.
    2. Term of User Subscriptions. User subscriptions commence on the start date specified in the applicable Order Form and unless otherwise specified therein, shall continue for a period of 1 year. If the start date is not identified in applicable Order Form, User subscription term shall be 1 year, commencing on the applicable Order Form date. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either Party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The expiration or termination for any reason of any individual Order Form shall not result in a termination of this Agreement but shall result only in termination of the applicable Order Form. The provisions of this Agreement relating to the effects of termination shall apply to each Order Form as an independent contract.
    3. Termination Rights. If either Party is in default of any material provision of this Agreement and such default is not corrected within 30 days of receipt of written notice, the other Party shall have the right to terminate this Agreement by providing written notice to the Party in breach. Either Party shall have the right to immediately terminate this Agreement in writing if the other Party (a) voluntarily or involuntarily becomes the subject of a petition in bankruptcy or of any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors which is not dismissed within 120 days or (b) admits in writing its inability to pay its debts as they become due.
    4. Refund or Payment upon Termination. Upon any termination by Customer pursuant to Section 11(c), Seclore shall refund to Customer the unused portion of any pre-paid fees covering the remainder of the subscription term of all Order Forms after the effective date of termination. Upon any termination for cause by Seclore, Customer shall pay any unpaid fees covering the remainder of the subscription term of all Order Forms after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Seclore for the period prior to the effective date of termination.
    5. Effect of termination; Surviving Provisions. Customer shall take appropriate steps to un-protect Files prior to termination of the subscription term as the Services will not function thereafter. Upon termination of the Agreement as a whole or upon the written request of a Party, each Party shall, at the disclosing Party’s option, immediately return or destroy the other Party’s Confidential Information received hereunder in its possession or under its control. Customer’s obligation to make payment of any unpaid fees and the terms of Sections 5 (Fees and Payment), 6 (Proprietary Rights; Affiliates), 7 (Confidentiality), 9 (Mutual Indemnification), 10 (Limitation of Liability), 11(d) (Refund or Payment upon Termination), 11(e) (Effect of termination; Surviving Provisions), 12 (Data Storage, Usage and Destruction) and 13 (General Provisions) shall survive any termination or expiration of this Agreement.
  1. DATA STORAGE, USAGE AND DESTRUCTION
    1. Seclore collects File Data as Users and External Users use Services and/or Software (if applicable). Such File Data is used in accordance with Seclore’ Privacy Policy.
    2. File Data is retained during the relevant subscription term. Upon expiry of the subscription term, Seclore will hold the File Data for a period of 3 months (the “Holding Period”). Thereafter, such File Data will be destroyed by Seclore within 30 days of expiry of the Holding Period, or upon Customer’s explicit written request (whichever is earlier).
    3. In the event of any litigation, the destruction policy set forth in 12(b) above may be suspended for specific persons or documents related to such litigation. This will be explicitly informed to the concerned persons.
  1. GENERAL PROVISIONS
    1. Notice to Customers based in the United States.
      1. U.S. Export Compliance. If the Customer has purchased Services and/or Software (if applicable), in United States, Customer acknowledges that the Services and/or Software (if applicable), are subject to U.S. export control laws, including U.S. Export Administration Act and its associated regulations. Customer agrees to comply with all laws and regulations of the United States to assure that neither the Services and/or Software (if applicable), nor any direct products thereof are: (A) exported directly or indirectly, in violation of such laws, either to any countries that are subject to U.S. export restrictions or to any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. Government; or (B) intended to be used for any purpose prohibited by U.S. export laws, including, without limitation, nuclear, chemical, or biological weapons proliferation Each Party represents that it is not named on any U.S. government denied party list. Customer shall not permit Users to access or useServices and/or Software (if applicable), in a U.S.-embargoed country (currently Crimea – region of Ukraine) Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
      2. Federal Government End Use Provisions. If the Customer has purchased Services and/or Software (if applicable) in United States, Customer acknowledges that the Services and/or Software (if applicable), consists of “commercial computer software” and “commercial computer software documentation” as such terms are defined in the Code of Federal Regulations. No Government procurement regulations or contract clauses or provisions shall be deemed a part of any transaction between the Parties unless its inclusion is required by law, or mutually agreed in writing by the Parties in connection with a specific transaction. Use, duplication, reproduction, release, modification, disclosure or transfer of the Services and/or Software (if applicable) is restricted in accordance with the terms of this Agreement.
    2. Publicity. Within 30 days of the Effective Date and at Seclore’s election, the Parties shall issue a joint press release regarding Customer’s use of the Services and/or Software (if applicable). In addition, either Party may include the other’s name and logo in customer or vendor lists on such Party’s website and marketing collateral. Customer also agrees to: (a) serve as a reference or host onsite reference visits; (b) collaborate on press releases announcing or promoting the relationship; and (c) collaborate on case studies or other marketing collateral.
    3. Compliance with Laws. The Services and/or Software (if applicable) are subject to export control laws. Customer agrees to comply fully with all export and import laws and regulations of the jurisdiction in which it resides (“Export Laws”) to ensure that neither the Services and/or Software (if applicable), nor any direct products thereof are: (a) exported directly or indirectly, in violation of Export Laws, either to any country that is subject to export restrictions, or to any end user who has been prohibited from participating in export transactions by any government agency, or (b) intended to be used for any purpose prohibited by Export Laws, including without limitation, nuclear, chemical or biological weapons proliferation.
    4. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
    5. Notices. Any notices required under this Agreement shall be given in writing, shall reference this Agreement, and shall be deemed to have been delivered and given: (a) when delivered personally; (b) 3 business days after having been sent by registered or certified mail, return receipt requested; or (c) 1 business day after deposit with a commercial overnight courier, with written verification of Notices to Seclore shall be sent to the address listed on the Seclore’s website (Seclore’s website is currently located at www.seclore.com) and shall be addressed to the “Legal Department”. Notices to Customer shall be sent to the address provided in Order Form, and where applicable to the e-mail ID provided by Customer.
    6. Force Majeure. Except for any payments due hereunder, neither Party shall be responsible for delay or failure in performance caused by any government act, law, regulation, order or decree, by communication line or power failures beyond its reasonable control, or by pandemics, fire, flood or other natural disasters or by other causes beyond its reasonable control, nor shall any such delay or failure be considered to be a breach of this Agreement.
    7. Amendment, Waiver. No modification, termination, extension, renewal or waiver of any provision of this Agreement shall be binding upon a Party unless made in writing and signed by the Party for whom enforcement is sought. Except as set forth herein, no modification of this Agreement or of any term or condition hereof shall result due to either Party’s acknowledgment or acceptance of the other Party’s forms (e.g., purchase orders, acknowledgment forms, etc.) containing different or additional terms and conditions unless expressly and specifically accepted by both Parties by means of a writing which references this Section. Upon acceptance of an order by Seclore (which may be by e-mail), the order shall become a non-cancellable Order Form. The Order Form shall constitute an amendment to this Agreement, provided, that the Order Form is in accordance with the terms and conditions of this Agreement. Notwithstanding the foregoing, the only operative terms in an Order Form shall be: (i) the identification of the Services, (ii) the subscription term, and the number of Users, (iii) the Affiliates that will be using the Services, if any, and (iii) a calculation of the Fees due therefor. A waiver on one occasion shall not be construed as a waiver of any right on any future occasion. No delay or omission by a Party in exercising any of its rights hereunder shall operate as a waiver of such rights.
    8. Data Aggregation. Customer acknowledges and agrees that the Services transmit anonymous, aggregated data regarding usage to Seclore, solely for audit purposes and improving usage of the Services.
    9. Provision Severability. In the event that it is determined by a court of competent jurisdiction that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the Parties, while the remainder of this Agreement shall remain in full force and effect and bind the Parties according to its terms. To the extent any provision cannot be enforced in accordance with the stated intentions of the Parties, such terms and conditions shall be deemed not to be a part of this Agreement.
    10. Assignment. This Agreement is not assignable or delegable by Customer (including, without limitation, by merger, operation of law, or through the transfer of all or substantially all of the equity, assets, or business of Customer), in whole or in part, without the prior written consent of Seclore. This Section shall not be construed as limiting Seclore’s right to use subcontractors and its Affiliates to carry out any of its obligations under this Agreement, provided that Seclore shall remain liable for any such services provided by a subcontractor or Affiliate. Any assignment not in conformity with this section shall be null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
    11. Governing Law; Jurisdiction
      1. United States. If Customer purchased the Services in United States, California state law governs the interpretation of this Agreement excluding its conflict of laws principles. The state and federal courts located in San Francisco County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each Party hereby consents to the exclusive jurisdiction of such courts.
      2. India. If Customer purchased the Services in India, Indian law governs the interpretation of this Agreement. The courts located in Mumbai, India shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each Party hereby consents to the exclusive jurisdiction of such courts.
      3. United Arab Emirates. If Customer purchased the Services in the United Arab Emirates, laws of the Emirate of Dubai and the federal laws of United Arab Emirates governs the interpretation of this Agreement. The parties hereby submit to the exclusive jurisdiction of the courts of Dubai.
      4. Outside United States, India and United Arab Emirates. . If Customer purchased Services in any other country other than the those listed in (i)-(iii) above, the laws of England and Wales shall apply, without reference to its conflicts of law provisions. Courts located at London shall have exclusive jurisdiction over any dispute arising out of this agreement.
      The applicability of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded from this Agreement.
    12. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
Exhibit A
Seclore Rights Management Support Services and SLAs

Seclore will provide Support Services in accordance with the following terms and conditions.

  1. SCOPE OF SUPPORT SERVICES – The Support Services provided by Seclore will include:
Hosted Scope
  1. B. SUMMARY OF SUPPORT SERVICES BY PLAN TYPE (SERVICE WINDOW)
On Premise ExhibitA A

* Business hours are defined as 9:00 AM to 5:00 PM in the hosting region (i.,e. local time in Mumbai, India and/or North Virginia, USA , as applicable), excluding local holidays and weekends. These times may vary in countries with multiple time zones.

** Designated Support Contacts: Designated Support contacts are named persons in Customer’s organization who are authorized to submit tickets to Seclore Support and to work directly with Seclore’s support team. Only Designated Support Contacts (as defined in Section E below) may submit tickets as well as receive status information with respect to Support Services.

  1. UPGRADES
    1. Seclore will maintain the Seclore cloud environment and keep it upgraded with latest product releases. There will be a monthly maintenance window every second Saturday of the month where Services availability maybe limited or temporarily disrupted.
    2. Customer will ensure that Software, if applicable and Seclore Agents are installed and maintained by Users and over-the-air upgrades will be pushed automatically through the Seclore Portal as an when new releases are available.
  1. END-USER SUPPORT
    1. Support Levels
      On Premise ExhibitA B
    2. Customer’s local IT helpdesk (“Helpdesk”) shall be responsible for providing Level 1 Support to Users. Training videos and knowledge bank to provide Level 1 Support will be available on Seclore Portal at seclore.com. The following terms outline Customer’s Helpdesk responsibilities:
      1. The Helpdesk will troubleshoot the incident and attempt to provide a resolution to the user.
      2. In the event the Helpdesk is unable to provide a resolution, a Designated Support Contact shall raise a ticket to Seclore’s support team by using any of the following options:
        1. Email, by sending an email to support@seclore.com. Every email will be converted into a ticket and an acknowledgment with the ticket number will be sent to the Designated Support Contact; or
        2. Chat, by initiating a chat with Seclore support engineers using the live chat option in the Seclore Support portal at (https://support.seclore.com); or
        3. c. Log a ticket, by visiting Seclore’s support portal, (https://support.seclore.com)
      3. In order for Seclore’s support team to resolve the incident, the Helpdesk will document the incident and provide the following details to Seclore’s support team:
        1. an accurate and complete description of the incident, and
        2. prioritization of the incident according to Service Priority Definitions set forth in Table A below.
        3. The Helpdesk shall ensure that it captures enough information to allow Seclore to reliably reproduce the error which is the basis for the incident.
  1. DESIGNATED SUPPORT CONTACTS
    1. Customer shall identify Designated Support Contact(s) and provide Seclore with the following details of such Designated Support Contact(s):
      1. Name
      2. Designation
      3. Email ID
      4. Contact Number
    2. Unless otherwise requested by Customer in writing, Seclore will only communicate with Customer’s Designated Support Contacts with respect to the resolution of support incidents. The Designated Support Contact(s) shall be responsible for providing additional information or remote sessions, as requested by Seclore, to enable Seclore’s support term to troubleshoot the incident.
    3. The number of Designated Support Contacts that the Customer may appoint is dependent on the level of Support Services the Customer has elected. A Designated Support Contact may be changed upon reasonable written notice to Seclore.
  1. SERVICE LEVEL COMMITMENTS Seclore will respond to tickets based on the Service Priority as defined by Seclore in accordance with Table A below and respond to Customer in accordance with Table B below. Escalation is from the Helpdesk to Seclore’s 2nd level support team.

Table A
Service Priority Definitions

On Premise ExhibitA TableA

Table B
Service Goals and levels by Plan

For the purpose of this Table B, response time shall be defined as the time elapsed between a ticket being raised by the Designated Support Contact and the assignment of a ticket number by Seclore’s support team.

Hosted ExhibitA TableB

* Subject to exclusions identified in Section 2(c)(ii)(b) of the Agreement.

  1. OUT OF SCOPE
    1. The following activities are outside the scope of Seclore Support Services:
      1. Maintenance and Support of the underlying infrastructure in the Customer’s environment or any third-party products or platform procured by the Customer on which any Seclore component is installed or integrated with.
      2. Resolution of issues arising due to problems in the Customer’s underlying infrastructure e.g., database issues, network connectivity issues, data loss due to lack of availability of backed-up data, patching operating systems, physical machines, and hardware failure of the servers on which Seclore is installed etc
      3. Issues arising due to incompatibility with third-party software which is not explicitly supported by Seclore will not be governed by the response timelines mentioned.
    2. The following activities are not part of Support Services unless explicitly agreed in the Order Form. Such activities will be initiated only as per availability of resources and may be subject to additional charges, such charges to be mutually agreed in writing between Customer and Seclore:
      1. Request for re-training and provision of custom documentation.
      2. Request for resolving issues that arise due to improper installation by the customer’s I.T team, failure to incorporate all upgrades, unauthorized/attempted modification, or alteration not performed by Seclore Support.
      3. Onsite Support.
      4. Migration of Customer tenant to a different hosting region supported by Seclore.
  1. SUNSET PROVISIONS
    1. As per Seclore’s standard Product Life Cycle Policy, all Seclore provided components that are more than 1 year old are automatically unsupported. This includes all Seclore Agents that are installed on end-user devices and also server-side components like the Policy Server, Enterprise Application connectors, APIs and SDKs. Please visit Seclore’s Product Life Cycle Policy for more information.
    2. Where the Services require a third-party product to operate (such as an operating system) or where the Services interoperates with a Third-party product (such as a Windows Office component) (collectively, “Third Party Products”) and the Third-Party Product vendor withdraws generally available support for such product, then Seclore shall no longer support such Third-Party Product.
  1. FAIR USAGE POLICY FOR CLOUD HOSTED Customer’s use of the Services is governed by the fair usage policy for the managed Seclore Rights Management infrastructure hosted by Seclore or its hosting service provider. Fair Usage Policy needs to be adhered to ensure that Seclore can provide the agreed service levels for instances hosted on a shared infrastructure. Please visit Seclore’s Fair Usage Policy for more information.