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+Sysdig, Inc. |85 Second Street, Suite 800, San Francisco, CA 94105 | 415- 872 - 9473 | http://www.sysdig.com
+LICENSE SUBSCRIPTION AGREEMENT
+(On-Premise)
+This License Subscription Agreement, including all exhibits, schedules, Statements of Work and Order Forms (as defined below) (collectively,
+the “Agreement”) are the terms under which Sysdig, Inc. (“Sysdig”) agrees to grant the customer (“Customer”) use of the Software and access
+to the Support Services and Services (as defined below). By indicating Customer’s acceptance of this Agreement, executing an Order Form
+that references this Agreement, or using the Software, Support Services and/or Services, Customer agrees to be bound by this Agreement. If
+you are entering into this Agreement on behalf of an entity, such as the company you work for, then you represent to Sysdig that you have the
+legal authority to bind the Customer to this Agreement. Sysdig and Customer are each a “Party” and collectively, the “Parties”, hereunder.
+
+1. DEFINITIONS
+"Affiliate" means with respect to a Party, any person or entity that
+controls, is controlled by, or is under common control with such
+Party, where "control" means ownership of fifty percent (50%) or
+more of the outstanding voting securities.
+
+“B2B Relationship Data” means any administrative, transactional
+or account related data or communications provided by or on behalf
+of Customer to Sysdig in connection with the creation, purchase,
+maintenance, or support of Customer’s account with Sysdig.
+"Contractor(s)" means any third-party provider, agents,
+outsourcers or contractors performing services on Customer's
+behalf.
+
+"Customer Data" means any data or other information which is
+provided by (or on behalf of) Customer directly or indirectly in
+connection with the Software, Services or Beta Releases, and shall
+not include Customer Personal Data or Service Analytics as defined
+hereunder.
+"Customer Personal Data" means any Customer Data which (i)
+qualifies as “Personal Data” “Personal Information” “Personally
+Identifiable Information” or any substantially similar term under
+applicable privacy laws and (ii) is processed by Sysdig on behalf of
+Customer in connection with the Agreement. For the avoidance of
+doubt, Customer Personal Data shall not include B2B Relationship
+Data or Service Analytics as defined hereunder.
+"Documentation" means the online help materials, including
+technical specifications, describing functionality of the Software
+provided by Sysdig on a publicly available website and updated
+from time to time.
+
+"Intellectual Property Rights" means all current and future
+worldwide intellectual property rights, including without limitation,
+all patents, copyrights, trademarks, service marks, trade names,
+domain name rights know-how and other trade secret rights, and all
+other intellectual property rights and similar forms of protection, and
+all applications and registrations for any of the foregoing.
+
+"License Entitlement" means the quantity of the license metrics
+pursuant to which the Software is licensed by Sysdig, as set forth in
+Order Form, which may include servers, agents, containers or hosts.
+
+"License Keys" means an alphanumeric code that enables use of
+the Software.
+
+“Open Source Software” means a program in which source code
+is made publicly and freely available for use and modification
+pursuant to certain license terms.
+
+"Order Form" means a document executed by and between Sysdig
+and Customer or electronically accepted by Customer that
+references this Agreement, purchase confirmation or any other
+
+document which details the Software and Services to be provided by
+Sysdig, the fees associated therewith, and any other transaction-
+specific terms and conditions.
+“Statement of Work” or “SOW” means a statement of work or
+other such executed document that references this Agreement,
+whereby Customer engages Sysdig to perform certain training,
+consulting, technical account management, professional, or similar
+services related thereto.
+"Services" means any of the training services, technical account
+management services, and/or consulting or other professional
+services, pursuant to one or more Order Forms and SOW(s), if
+applicable.
+"Software" means any current and future Sysdig branded software
+that is licensed for use on Customer’s premises or in Customer’s
+cloud, during the Subscription Term, including all Updates thereto.
+"Subscription Term" means the subscription period(s) specified in
+an Order Form during which Customer is licensed to use and deploy
+the Software, subject to the terms of this Agreement.
+"Support Services" means the maintenance and support services
+provided by Sysdig to Customer for the Software.
+"Support Services Subscription" means the level of Support
+Services purchased by Customer, as set forth in the Order Form.
+Sysdig's commitments for each Support Services Subscription are
+more fully described in the Support Services Policy, a current copy
+of which is set forth in Exhibit A.
+“Update” is a Software release that Sysdig makes generally
+available to all Sysdig customers, along with any corresponding
+changes to Documentation. An Update may be an error correction
+or bug fix; or it may be enhancement, new feature, or new
+functionality.
+LICENSE
+2.1. License Scope. Subject to the terms of this Agreement,
+Sysdig grants to Customer a limited, revocable, non-exclusive, non-
+transferable and non-sublicensable right and license to install and
+use, in object code form, solely for internal business purposes, the
+Software in accordance with the purchased License Entitlements as
+set forth in the Order Form. Customer may permit its Contractors
+and Affiliates to use and deploy the Software and Documentation
+solely on behalf of and for the benefit of Customer, provided that
+the Customer shall be liable for the compliance of all Contractors
+and Affiliates with this Agreement, Documentation, and the Order
+Form(s).
+2.2. Delivery and Acceptance. Promptly following
+execution of an Order Form and receipt of Customer's purchase
+order, if applicable, Sysdig shall make the Software available for
+Sysdig, Inc. |85 Second Street, Suite 800, San Francisco, CA 94105 | 415- 872 - 9473 | http://www.sysdig.com
+download or deliver License Keys, which enable the Customer to
+download the Software. The Software will be deemed to have been
+delivered to Customer upon provision of the License Key or making
+the Software available for download.
+
+2.3. Restrictions. Customer acknowledges that the Software
+and its structure, organization and source code constitute valuable
+trade secrets of Sysdig. Accordingly, except as otherwise expressly
+set forth in this Agreement, Customer may not and shall not permit
+any third party to: (a) translate, disclose, modify or create any
+derivative works based on the Software; (b) market, sell, license,
+sublicense, distribute, publish, display, reproduce, rent, lease, loan,
+assign or otherwise transfer to a third party the Software or
+Documentation or any copy thereof, in whole or in part; (c) except
+to the extent permitted by law, decompile, disassemble, reverse
+engineer, or otherwise attempt to derive source code from the
+Software, in whole or in part; (d) operate the Software on behalf of
+or for the benefit of any third party, including the operation of any
+service that is accessed by a third party, for third-party training,
+commercial time-sharing or service bureau use; (e) remove any
+product identification, proprietary copyright or other notices
+contained in the Software; (f) access or use the Software for the
+purpose of building a product or service in competition with the
+Software; and (g) circumvent or attempt to circumvent contractual
+usage restrictions.
+
+2.4. Open Source Software and Third-Party Software.
+Customer acknowledges and agrees that certain Open Source
+Software libraries, components and utilities, and other third-party
+software not owned or developed by Sysdig are embedded in the
+Software. The publicly available open source license terms
+governing the Open Source Software shall take precedence over this
+Agreement to the extent that the Agreement imposes greater
+restrictions on Customer. Customer hereby acknowledges that
+Sysdig disclaims and makes no representation or warranty with
+respect to the Open Source Software, or any portion thereof, and
+assumes no liability for any claim that may arise with respect to such
+Open Source Software or Customer's use or inability to use the
+same.
+
+2.5. License Entitlement Review. Customer shall monitor
+and ensure that use and deployment of the Software under this
+Agreement is consistent with the applicable License Entitlement, as
+set forth in the relevant Order Form. Sysdig, may, upon reasonable
+notice, review Customer’s records of Software usage to verify that
+Customer has: (a) used the Software solely in the manner authorized
+herein; (b) paid all applicable license fees; and (c) otherwise
+complied with the terms of this Agreement and Order Form(s). In
+general, Sysdig does not require physical access to Customer's
+premises, computing devices or systems in connection with any such
+review. If, as a result of the review, it is determined that Customer
+is utilizing more licenses than it is entitled under the License
+Entitlement as set forth in the Order Form, Customer will promptly
+pay directly to Sysdig all underpayments revealed by such review.
+2.6 Use of Services Deliverables. Subject to Customer’s
+payment of all fees due hereunder, Sysdig grants Customer a
+limited, non-exclusive, royalty-free, non-sublicensable, non-
+transferable license (except as specifically permitted in this
+Agreement), to use those elements of the Sysdig Technology (as
+defined below) embodied in the Services deliverables, if any, in
+
+Customer’s ordinary course of business, solely as so embodied.
+Sysdig reserves all other rights in and to the Sysdig Technology.
+2.7 Affiliates. The Parties agree that their respective Affiliates
+may also conduct business under this Agreement by entering into
+Order Forms, subject to this Agreement. Accordingly, where
+Affiliates of the Parties conduct business hereunder, references to
+Customer herein shall include any applicable Affiliate of Customer.
+SUPPORT SERVICES
+3.1. Sysdig will provide Customer with Support Services in
+accordance with the purchased Support Services Subscription, as set
+forth in the Order Form.
+3.2. Support Services will be delivered to Customer as set
+forth in this Agreement, provided that the Customer: notifies Sysdig
+of issues in accordance with the Support Services Policy; engages
+with Sysdig in good faith to resolve any issues with the Software by
+making necessary resources and information available to Sysdig;
+makes reasonable efforts to apply the solution recommended by
+Sysdig; and has deployed all of the major and minor releases of the
+Software issued by Sysdig that are no more than two releases back
+or six (6) months old from the date of their release. Customer shall
+be entitled to Updates to the extent Sysdig incorporates such
+Updates into the Software subject to the applicable Order Form
+during the Subscription Term.
+SOFTWARE PURCHASED THROUGH
+RESELLERS. The Parties agree that Customer may purchase
+through Resellers Software, Support Services and Services that are
+governed by this Agreement. Where Customer purchases through a
+Reseller, the Reseller will enter into an Order Form with Sysdig that
+shows Customer as the "ship to" party and Reseller as the "bill to"
+party, and Reseller and Customer will enter into a separate
+agreement setting forth the fees to be paid by Customer to Reseller,
+as well as any other terms or conditions that apply between them.
+Sysdig hereby agrees that, subject to receiving payment from the
+Reseller, Sysdig shall be responsible to Customer, pursuant to the
+terms and conditions of this Agreement, for providing the Software
+under any such Order Form. Customer hereby acknowledges that
+Sysdig will not be responsible for the obligations of any Reseller to
+Customer under such separate agreement, for the acts or omissions
+of Reseller, or for any third-party products or services furnished to
+Customer by any Reseller. For the avoidance of doubt, the Sections
+herein entitled “Payment” and “Taxes” will be of no effect where
+Customer purchases through a Reseller, as payment and taxes will
+be addressed in the agreement between Reseller and Customer.
+OWNERSHIP. The Software, Support Services,
+Services and Documentation, all copies and portions thereof, and all
+Intellectual Property Rights therein, including, but not limited to
+derivative works therefrom (“Sysdig Technology”), are and shall
+remain the sole and exclusive property of Sysdig notwithstanding
+any other provision in this Agreement. Customer is not authorized
+to use (and shall not permit any third party to use) the Sysdig
+Technology or any portion thereof except as expressly authorized
+by this Agreement.
+5.1. Service Analytics. Sysdig may process Service Analytics for
+internal business purposes in order to deliver, enhance, secure and
+support Sysdig products and services, including Software and
+Services. Customer may have the ability to configure the Software
+to limit the Service Analytics that are collected. Customer may
+Sysdig, Inc. |85 Second Street, Suite 800, San Francisco, CA 94105 | 415- 872 - 9473 | http://www.sysdig.com
+refer to the Documentation and/or Customer’s account
+representative for more information. “Service Analytics” means all
+information and data that the Software generates or otherwise
+obtain from Customer’s use of the foregoing, including but not
+limited to usage statistics, telemetry and analytics and similar
+information, collected by cookies, web beacons, and other similar
+applications. Sysdig may disclose the results of its analysis of the
+Service Analytics publicly or to third parties in connection with our
+marketing and promotion efforts, including but not limited to
+presentations, technical reports and whitepapers, provided that such
+results do not contain any personally identifiable information, or
+enable a third Party to determine the source of such information.
+
+PAYMENT; TAXES
+6.1. Fees and Payment. All fees are as set forth in the
+applicable Order Form and shall be paid by Customer within thirty
+(30) days from the date of the invoice, unless otherwise specified in
+the applicable Order Form. Except as expressly set forth in an Order
+Form: (a) payment obligations are non-cancelable and fees are non-
+refundable, unless specifically provided herein; and (b) Customer
+may not decrease the purchased number of subscription rights
+during the applicable Subscription Term. Where Customer
+designates use of a third-party payment processor network,
+Customer shall be responsible for payment of all fees and charges
+associated with use of such network (including registration,
+participation, and payment processing fees) and Sysdig may invoice
+for such fees together with the subscription fees or on separate
+invoice.
+
+6.2. Travel and Expenses. Customer will pay any
+reasonable and actual out-of-pocket expenses incurred in
+connection with the Services according to Sysdig’s Travel Policy,
+including, without limitation, transportation, lodging, and any
+incidentals associated with the Services provided to Customer such
+as airfare, hotel, and meals. Sysdig shall provide Customer invoices
+and receipts for such costs.
+
+6.3. Rescheduling Policy Applicable to Services. Sysdig
+and Customer will commence Services on a start date to be mutually
+agreed to between the Parties. Customer may reschedule Services
+by notifying Sysdig in writing (which can include by email) with
+fifteen (15) business days’ prior notice and Sysdig will make
+commercially reasonable efforts to reschedule. If performance of
+the Services is delayed due to Customer’s failure to provide
+required access, personnel availability or is otherwise canceled with
+less than fifteen (15) business days’ notice once ordered by
+Customer, Sysdig may charge Customer the then prevailing daily
+charge, plus reimbursement of all travel-related expenses (if
+applicable), for each day (up to a maximum of 15 days) for each
+person assigned by Sysdig to provide the Services. Sysdig strongly
+recommends scheduling the Services engagement in a single
+instance over a period of consecutive days. However, in no event
+shall Services be scheduled in fewer than in one full day increments,
+unless otherwise set forth in an SOW. No Services shall be
+scheduled in partial day increments.
+
+6.4. Effect of Nonpayment. If Customer's account fails
+into arrears and continues to remain unpaid for ten (10) days after
+Sysdig provides notice to Customer of its delinquency, Sysdig
+reserves the right to suspend or terminate this Agreement,
+Customer’s right and license to the Software and Customer’s access
+
+to the Support Services. In the case of termination, Customer shall
+uninstall all copies of the deployed Software immediately after the
+termination. Unpaid amounts may be subject to interest at the lesser
+of one and one-half percent (1.5%) per month or the maximum
+permitted by law, plus collection costs.
+6.5. Taxes. All fees stated on Order Form are exclusive of
+any taxes, levies, or duties ("Taxes"), and Customer will be
+responsible for payment of all such Taxes excluding taxes based
+solely on Sysdig income. Unless Customer provides Sysdig a valid
+state sales/use/excise tax exemption certificate, Customer will pay
+and be solely responsible for all Taxes. Sysdig may invoice Taxes
+in accordance with the applicable law together on one invoice or a
+separate invoice. Sysdig reserves the right to determine the Taxes
+for a transaction based on Customer's "bill to" or "ship to" address,
+or other information provided by Customer on the location of
+Customer's use of the Software. Customer will be responsible for
+any Taxes, penalties or interests that might apply based on Sysdig's
+failure to charge appropriate tax due to incomplete or incorrect
+location information provided by Customer. If Customer is required
+by any foreign governmental authority to deduct or withhold any
+portion of the amount invoiced for the delivery or use of the Service
+under this Agreement, Customer shall increase the sum paid to
+Sysdig by an amount necessary for the total payment to Sysdig
+equal to the amount originally invoiced.
+TERM AND TERMINATION
+7.1. Term. This Agreement commences on the Effective
+Date and unless earlier terminated pursuant to the terms of this
+Agreement, the Agreement will continue for so long as there is an
+Order Form in effect between the Parties.
+7.2. Termination for Cause. Either Party may terminate this
+Agreement (or any affected Order Form or Statement of Work) (a)
+upon the other Party’s material breach that remains uncured for
+thirty (30) days following notice of such breach, except that
+termination will take effect on notice in the event of a breach of
+Section 2.3 (“Restrictions”), Section 2.6 (“Use of Services
+Deliverables”) or 11 (“Confidential Information”); or (b)
+immediately in the event the other Party becomes the subject of a
+petition in bankruptcy or any other proceeding relating to
+insolvency, receivership, liquidation or assignment for the benefit
+of creditors (and not dismissed within sixty (60) days thereafter).
+7.3. Termination for Convenience. Either Party may
+terminate this Agreement, Order Form(s) or Statement of Work, for
+any reason or for no reason, by providing the other Party at least
+thirty (30) days’ prior written notice. However, in the event of a
+Customer termination for convenience, Customer shall not be
+entitled to any refund or relief from payment of any fees paid or
+payable under the Agreement, applicable Order Forms or Statement
+of Work.
+7.4. Effect of Termination. Upon early termination of this
+Agreement by Customer for Sysdig's uncured material breach
+pursuant to Section 7 .2 or by Sysdig pursuant to Section 7 .3,
+Customer is entitled to a prorated refund of prepaid fees relating to
+the Software applicable to the remaining period in the applicable
+Subscription Term. Upon expiration or termination of this
+Agreement by Sysdig for Customer’s uncured material breach
+pursuant to Section 7 .2 or by Customer pursuant to Section 7 .3, fees
+applicable to the duration of any applicable Subscription Term will
+Sysdig, Inc. |85 Second Street, Suite 800, San Francisco, CA 94105 | 415- 872 - 9473 | http://www.sysdig.com
+be immediately due and payable. Notwithstanding the terms and
+conditions of an Order Form, Sysdig reserves the right not to renew
+any Order Form. In addition, upon expiration or termination of this
+Agreement for any reason: (a) all rights granted to Customer under
+this Agreement, and Sysdig's obligation to provide Support
+Services, Services, the Software and Beta Releases will terminate;
+and (b) any payment obligations accrued pursuant to this
+Agreement, as well as the provisions of Section 2.5, 5, 6, 7. 4 , 9 , 11,
+and 12 of this Agreement will survive such expiration or
+termination. Within thirty (30) days after termination of this
+Agreement, the Recipient (as defined below) shall return or destroy
+(or in the case of electronic data, use commercially reasonable
+efforts to delete or render practicably inaccessible by Recipient) all
+Confidential Information and materials containing any Confidential
+Information of the Discloser (as defined below). Within thirty
+(30) days after termination of this Agreement, Customer shall return
+or destroy all copies of the Software and Beta Releases, and upon
+Sysdig request, provide written certification of compliance with
+such request.
+
+LIMITED WARRANTY
+8.1. Mutual Warranties. Each Party represents and
+warrants that it has the power and authority to enter into this
+Agreement.
+
+8.2. Limited Performance Warranty. Sysdig warrants to
+the Customer that the Software will, for a period of ninety (90) days
+following its initial delivery ("Warranty Period"), substantially
+conform to the applicable Documentation, provided that the
+Software: (a) has been properly installed and used at all times and
+in accordance with the applicable Documentation; and (b) has not
+been altered or modified by anyone other than Sysdig or its
+designee. Sysdig will, at its own expense correct any reproducible
+error in the Software reported to Sysdig by Customer in writing
+during the Warranty Period. If Sysdig determines that it is unable to
+correct the error, Sysdig will replace the Software in accordance
+with the Support Services Policy. This Section 8 .2 represents
+Customer's exclusive remedy, and Sysdig's entire liability, for any
+breach of the warranties set forth herein.
+
+8.3. Malicious Code. Sysdig warrants that Sysdig will not
+knowingly introduce, software viruses, worms, Trojan horses or
+other code, files, scripts, or agents intended to do harm.
+8.4. Warranty Disclaimer. EXCEPT FOR THE
+EXCLUSIVE WARRANTIES SET FORTH IN THIS SECTION 8,
+TO THE MAXIMUM EXTENT PERMITTED UNDER
+APPLICABLE LAW, THE SOFTWARE, DOCUMENTATION
+SERVICES AND SUPPORT SERVICES ARE PROVIDED “AS
+IS” WITHOUT WARRANTY OF ANY KIND, AND SYSDIG
+MAKES NO WARRANTIES, EXPRESS, IMPLIED,
+STATUTORY, OR OTHERWISE, WITH REGARDING OR
+RELATING TO THE SOFTWARE, DOCUMENTATION,
+SERVICES OR SUPPORT SERVICES. SYSDIG
+SPECIFICALLY AND EXPLICITLY DISCLAIMS ALL OTHER
+WARRANTIES, EXPRESS AND IMPLIED, INCLUDING
+WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
+MERCHANTABILITY, FITNESS FOR A PARTICULAR
+PURPOSE, NON-INFRINGEMENT, THOSE ARISING FROM A
+COURSE OF DEALING, COURSE OF PERFORMANCE,
+USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE
+HEREBY EXCLUDED TO THE FULLEST EXTENT
+
+PERMITTED BY LAW. FURTHER, SYSDIG DOES NOT
+WARRANT THAT THE SOFTWARE WILL BE ERROR FREE
+OR THAT THE USE OF THE SOFTWARE WILL BE
+UNINTERRUPTED. SYSDIG’S SOLE AND EXCLUSIVE
+LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE
+REMEDY IN RESPECT OF ANY MAINTENANCE OR
+SUPPORT ISSUE SHALL BE LIMITED TO THE PROVISION
+OF SUPPORT SERVICES.
+9. LIMITATION OF REMEDIES AND DAMAGES
+9.1. Liability Cap. EXCEPT WITH RESPECT TO: (A)
+SYSDIG’S OBLIGATIONS UNDER SECTION 10
+(“INDEMNIFICATION”) (FOR WHICH THE LIABILITY
+LIMITATION SHALL BE ONE MILLION DOLLARS
+($1,000,000) IN THE AGGREGATE); AND (B) CUSTOMER’S
+BREACH OF SECTION 2 (“LICENSE”) OR INFRINGEMENT
+OF SYSDIG’S INTELLECTUAL PROPERTY, IN NO EVENT
+SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY
+EXCEED THE AMOUNTS PAID BY AND/OR DUE FROM
+CUSTOMER FOR THE THEN-CURRENT ANNUAL
+SUBSCRIPTION TERM, UNDER THE APPLICABLE ORDER
+FORM(S) RELATING TO THE CLAIM.
+9.2. Consequential Damages. EXCEPT FOR
+CUSTOMER'S INFRINGEMENT OF SYSDIG’S
+INTELLECTUAL PROPERTY, IN NO EVENT SHALL EITHER
+PARTY, OR SYSDIG'S AFFILIATES OR ITS LICENSORS BE
+LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL,
+SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY
+DAMAGES, INCLUDING WITHOUT LIMITATION LOST
+PROFITS, LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS
+OF DATA, REVENUE, GOODWILL, PRODUCTION,
+ANTICIPATED SAVINGS, OR COSTS OF PROCUREMENT OF
+SUBSTITUTE GOODS OR SERVICES, IN CONNECTION
+WITH OR ARISING OUT OF THE PERFORMANCE OF OR
+FAILURE TO PERFORM THIS AGREEMENT, WHETHER
+ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS
+CONDUCT, INCLUDING NEGLIGENCE, EVEN OF A PARTY
+HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
+DAMAGES.
+9.3. Limitations Fair and Reasonable. EACH PARTY
+ACKNOWLEDGES THAT THE LIMITATIONS OF LIABILITY
+SET FORTH IN THIS SECTION 9 REFLECT THE
+ALLOCATION OF RISK BETWEEN THE PARTIES UNDER
+THIS AGREEMENT, AND THAT IN THE ABSENCE OF SUCH
+LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF
+THIS AGREEMENT WOULD BE SIGNIFICANTLY
+DIFFERENT.
+INDEMNIFICATION
+10.1. By Sysdig. Sysdig shall defend Customer from and
+against any claim by a third party alleging that the Software, when
+used as authorized under this Agreement, infringes any trademark
+or copyright of such third party, enforceable in the jurisdiction of
+Customer’s use of the Software, or misappropriates a trade secret
+(but only to the extent that such misappropriation is not a result of
+Customer’s actions) (“Infringement Claim”) and shall indemnify
+and hold harmless Customer from and against any damages and
+costs awarded against Customer by a court of competent
+jurisdiction or agreed in settlement by Sysdig (including reasonable
+attorneys’ fees) resulting from such Infringement Claim, provided
+Sysdig, Inc. |85 Second Street, Suite 800, San Francisco, CA 94105 | 415- 872 - 9473 | http://www.sysdig.com
+that Customer: (a) promptly provides Sysdig with a written notice
+of the Infringement Claim; (b) allows Sysdig sole control of the
+defense and settlement of the Infringement Claim; and (c)
+reasonably cooperated in response to Sysdig’s requests for
+assistance and information. The Customer may participate in the
+defense of the Infringement Claim, at the Customer’s sole expense
+(not subject to reimbursement). Customer will not, without Sysdig’s
+prior written consent, make any admission or prejudicial statement,
+settle, compromise or consent to the entry of any judgement with
+respect to any pending or threatened Infringement Claim.
+
+10.2. Exclusions. Sysdig shall have no obligation and assumes
+no liability under this Section 10 or otherwise with respect to any
+claim based on: (a) any modification of the software that is not
+performed by or on behalf of Sysdig, or was performed in
+compliance with customer's specifications; (b) the combination,
+operation or use of the software with any other products, services,
+or equipment not provided by Sysdig where there would be no
+infringement claim but for such combination; (c) use of the
+applicable software other than in accordance with the terms and
+conditions of this agreement and the documentation; (d) use of any
+older version of the software when use of a newer revision would
+have avoided the infringement claim; (e) any claim that relates to
+the Open Source Software, freeware and any derivatives or other
+adaptations thereof; or (f) any software provided on a no-charge,
+beta or evaluation basis. THIS SECTION 10 STATES
+CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND
+SYSDIG’S ENTIRE LIABILITY FOR ANY INFRINGEMENT
+CLAIMS OR ACTIONS.
+10.3. Remedies. If Customer’s use of the Software is (or in
+Sysdig’s opinion is likely to be) enjoined, if required by settlement
+or if Sysdig determines such actions are reasonably necessary to
+avoid material liability, Sysdig may, at its option: (i) procure for
+Customer the right to use the Software in accordance with this
+Agreement; (ii) replace or modify, the Software to make it non-
+infringing; or (iii) terminate Customer's right to use the Software
+and discontinue the related Support Services, and upon Customer's
+certification of deletion of the Software, refund prorated pre-paid
+fees for the remainder of the applicable Subscription Term for the
+Software.
+
+CONFIDENTIAL INFORMATION
+11.1. “Confidential Information” means information and/or
+materials provided by one party (“Discloser”) to the other party
+(“Recipient”) which is identified as confidential at the time of
+disclosure or should be reasonably known by the Receiving Party
+to be confidential or proprietary due to the nature of the information
+disclosed and the circumstances surrounding the disclosure. The
+following information shall be considered Confidential Information
+whether or not marked or identified as such: this Agreement, the
+Sysdig Technology, License Keys, pricing information, any Beta
+Releases, product roadmap or strategic marketing plans, non-public
+material relating to the Software. Except as expressly authorized
+herein, the Receiving Party shall (1) hold in confidence and not
+disclose any Confidential Information to third parties and (2) not
+use Confidential Information for any purpose other than fulfilling
+its obligations and exercising its rights under this Agreement. The
+Receiving Party may disclose Confidential Information to its
+employees, agents, contractors and other representatives having a
+legitimate need to know, provided that such representatives are
+
+bound to confidentiality obligations no less protective of the
+Disclosing Party than this Section 11 and that the Receiving Party
+remains responsible for compliance by any such representative with
+the terms of this Section 11. The Receiving Party’s confidentiality
+obligations shall not apply to information that the Receiving Party
+can document: (i) was rightfully in its possession or known to it
+prior to receipt of the Confidential Information; (ii) is or has become
+public knowledge through no fault of the Receiving Party; (iii) is
+rightfully obtained by the Receiving Party from a third party
+without breach of any confidentiality obligation; or (iv) is
+independently developed by employees of the Receiving Party who
+had no access to such information. The Receiving Party may make
+disclosures to the extent required by law or court order, provided
+the Receiving Party notifies the Disclosing Party in advance and
+cooperates in any effort to obtain confidential treatment. The
+Receiving Party acknowledges that disclosure of Confidential
+Information would cause substantial harm for which damages alone
+would not be a sufficient remedy, and therefore that upon any such
+disclosure by the Receiving Party the Disclosing Party shall be
+entitled to seek appropriate equitable relief in addition to whatever
+other remedies it might have at law.
+11.2 Customer Personal Data. Customer acknowledges that the
+Software and Services do not require Customer to input or otherwise
+transmit Customer Personal Data and Customer agrees not to input
+or otherwise transmit any Customer Personal Data to the Software
+and Services without Sysdig’s explicit consent or as otherwise set
+forth in the applicable Order Form or other written agreement
+between the Parties.
+3 Data Processing Agreement. Subject to Section 11.2, and
+so long as Customer has separately executed the same, the terms of
+the Sysdig Global Data Processing Agreement (“DPA”) are hereby
+incorporated by reference and shall apply to Sysdig’s processing of
+Customer Personal Data on behalf of Customer. Customer
+represents and warrants that it has obtained all necessary consents
+and permissions from data subjects for the submission and
+processing of Customer Personal Data.
+11.4 B2B Relationship Data; Service Analytics. For the
+avoidance of doubt and subject to the terms hereunder, Sysdig
+processes Service Analytics and B2B Relationship Data in its role
+as an independent controller and in accordance with applicable laws
+and Sysdig’s privacy policy.
+GENERAL TERMS
+12.1. Assignment. Neither Party may assign this Agreement,
+in whole or in part, without the prior written consent of the other
+Party, provided that no such consent will be required to assign this
+Agreement in its entirety to (i) an Affiliate that is able to satisfy the
+obligations of the assignor under this Agreement or (ii) a successor
+in interest in connection with a merger, acquisition or sale of all or
+substantially of the assigning Party’s assets, provided that the
+assignee has agreed to be bound by all of the terms of this
+Agreement and all fees owed to the other Party are paid in full. If
+Customer is acquired by, sells substantially all its asses to, or
+undergoes a change of control in a favor of, a direct competitor of
+Sysdig, then Sysdig may terminate this Agreement upon thirty (30)
+days prior written notice.
+12.2. Severability. If any provision of this Agreement shall be
+adjudged by any court of competent jurisdiction to be
+unenforceable or invalid, that provision shall be limited to the
+Sysdig, Inc. |85 Second Street, Suite 800, San Francisco, CA 94105 | 415- 872 - 9473 | http://www.sysdig.com
+minimum extent necessary so that this Agreement shall otherwise
+remain in effect.
+
+12.3. Governing Law; Jurisdiction and Venue. This
+Agreement will be governed by the Applicable Law described
+below as applicable (without regard to the conflicts of law
+provisions of any jurisdiction), and claims arising out of or in
+connection with this Agreement will be subject to binding
+arbitration in accordance with Section 12.4 to be located in the
+Arbitration Tribunal and Venue described below based on the
+Customer's country of residence, as provided in the following table:
+
+Customer ’s
+Residence
+Applicable Law Arbitration Tribunal
+and Venue
+Americas State of
+California, USA
+American Arbitration
+Association in San
+Francisco, California,
+USA
+Outside of
+the
+Americas
+England & Wales London Court of
+International Arbitration,
+London, England
+Each Party irrevocably submits to the personal jurisdiction and
+venue of and agrees to service of process issued or authorized by,
+any court in the Jurisdiction in any action or proceeding. Neither
+the United Nations Convention of Contracts for the International
+Sale of Goods nor the Uniform Computer Information Transactions
+Act will apply to this Agreement.
+
+12.4. Arbitration. Any and all disputes, claims or causes of
+action, in law or equity, including without limitation, claims arising
+out of or related to the Parties’ negotiations and inducements to
+enter into this Agreement, enforcement, breach, performance or
+interpretation of this Agreement will be submitted to mandatory,
+binding arbitration under the auspices of the Arbitration Tribunal
+applicable above, or its successors, under its then-current
+commercial arbitration rules and procedures. Both Parties
+acknowledge that by agreeing to arbitration, they waive the
+right to resolve any such dispute through a trial by jury or
+judge or administrative proceeding. Nothing in this Agreement
+is intended to prevent either Party from obtaining injunctive relief
+in any competent court to prevent irreparable harm pending the
+conclusion of any such arbitration. Each Party will bear its own
+expenses in the arbitration and will share equally the costs of the
+arbitration; provided, however, that the arbitrator(s) or any other
+court may, in its discretion, award reasonable costs and fees to the
+prevailing Party. This Agreement is subject to the operation of the
+1958 United Nations Convention on the Recognition and
+Enforcement of Foreign Arbitral Awards.
+
+12.5. Notice. Notices to a Party will be sent by first-class mail,
+overnight courier or prepaid post to the address for such Party as
+identified on the first page of this Agreement and will be deemed
+given seventy-two (72) hours after mailing or upon confirmed
+delivery or receipt, whichever is sooner. Customer will address
+notices to Sysdig Legal Department, with a copy to
+legalnotices@sysdig.com. Either Party may from time to time
+change its address for notices under this Section by giving the other
+Party at least thirty (30) days prior written notice of the change.
+
+12.6. Force Majeure. Neither Party will be in default or liable
+under this Agreement by reason of any failure in performance of
+this Agreement if such failure arises, directly or indirectly, out of
+causes reasonably beyond the reasonable control of such Party,
+including acts of God or of the public enemy, terrorism, political
+unrest, U.S. or foreign governmental acts in either a sovereign or
+contractual capacity, fire, flood, failure of third Party connections,
+epidemic, pandemic or virus, utilities or networks, earthquake,
+hostile attacks, restrictions, strikes, and/or freight embargoes.
+12.7. Amendments; Waivers. No supplement, modification,
+or amendment of this Agreement shall be binding, unless executed
+in writing by a duly authorized representative of each Party to this
+Agreement. No waiver will be implied from conduct or failure to
+enforce or exercise rights under this Agreement, nor will any waiver
+be effective unless in a writing signed by a duly authorized
+representative on behalf of the Party claimed to have waived. No
+provision of any purchase order or other business form employed
+by Customer will supersede the terms and conditions of this
+Agreement, and any such document relating to this Agreement shall
+be for administrative purposes only and shall have no legal effect.
+12.8. Entire Agreement; Interpretation. This Agreement
+is the complete and exclusive statement of the mutual
+understanding of the Parties and supersedes all previous written and
+oral agreements and communications relating to the subject matter
+of this Agreement. In this Agreement, headings are for
+convenience only and “including”, “e.g.”, and similar terms will be
+construed without limitation. In the event of a conflict between the
+terms of this Agreement and the terms of any Order Form, or
+Exhibit hereto, such conflict will be resolved in the following order,
+except to the extent expressly specified otherwise in the applicable
+Order Form or SOW: (a) this Agreement; (b) the Exhibits (c) Order
+Form and (d) Statement of Work. Any preprinted terms on any
+Customer ordering documents or terms referenced or linked therein
+will have no effect on the terms of this Agreement and are hereby
+rejected, including where such Customer ordering document is
+signed by Sysdig. The Support Service Policy may be updated from
+time to time upon reasonable notice to Customer to reflect process
+improvements or changing practices (but the modifications will not
+materially decrease Sysdig’s obligations).
+12.9. Feedback. Sysdig will be free to use, irrevocably, in
+perpetuity, for free and for any purpose, all suggestions, ideas
+and/or feedback relating to the Software, Support Services, Services
+or Beta Releases (collectively, “Feedback”) provided by Customer,
+its Affiliates and Contractors.
+12.10. Independent Contractors. The Parties to this
+Agreement are independent contractors. There is no relationship
+of partnership, joint venture, employment, franchise or agency
+created hereby between the Parties. Neither Party will have the
+power to bind the other or incur obligations on the other Party’s
+behalf without the other Party’s prior written consent.
+12.11 Beta Releases. From time to time, Sysdig may grant
+Customer access to “alpha”, “beta”, “technical preview” or other
+early-stage products (“Beta Releases”). Customer shall comply
+with all terms related to any Beta Releases as posted or otherwise
+made available to Customer. Sysdig may add or modify terms
+related to access or use of the Beta Release at any time. While
+Sysdig may provide assistance with Beta Releases in its discretion,
+Sysdig, Inc. |85 Second Street, Suite 800, San Francisco, CA 94105 | 415- 872 - 9473 | http://www.sysdig.com
+notwithstanding anything to the contrary in this Agreement,
+CUSTOMER AGREES THAT ANY BETA RELEASE IS
+PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS
+WITHOUT ANY WARRANTY, SUPPORT SERVICES,
+MAINTENANCE, STORAGE, OR SERVICE LEVEL
+OBLIGATIONS OF ANY KIND. CUSTOMER FURTHER
+ACKNOWLEDGES AND AGREES THAT BETA RELEASES
+MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND
+MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER
+PROBLEMS FOR WHICH SYSDIG WILL NOT BE
+RESPONSIBLE. Sysdig makes no promises that future versions of
+a Beta Release will be released. Customer’s use of the Beta Release
+will automatically terminate upon the release of a generally
+available version of the applicable Beta Release or upon notice of
+termination by Sysdig. Either Party may suspend or terminate
+access or use of any Beta Release at any time for any reason or no
+reason. Notwithstanding anything to the contrary in the
+Agreement, after suspension or termination of Customer’s access to
+or use of any Beta Release for any reason Customer will not have
+any further right to access or use the applicable Beta Release.
+Notwithstanding anything contained to the contrary in this
+Agreement, Sysdig and its licensors’ cumulative and aggregate
+liability arising out of or relating to the Beta Releases is limited to
+$1,000 USD.
+
+12.12 Export Control. In its use of the Software, Support
+Services, Services, and Beta Releases, Customer agrees to comply
+with all export and import laws and regulations of the United States
+and other applicable jurisdictions. Without limiting the foregoing,
+(i) Customer represents and warrants that it is not listed on any U.S.
+government list of prohibited or restricted parties or located in (or a
+national of) a country that is subject to a U.S. government embargo
+or that has been designated by the U.S. government as a “terrorist
+supporting” country, and (ii) Customer shall not (and shall not
+permit any of its users to) deploy or use the Software or Beta
+Releases in violation of any U.S. export embargo, prohibition or
+restriction.
+
+12.13 Government End-Users. Elements of the Software,
+Services, Support Services and Beta Releases are commercial
+computer software. If the user or licensee of the Software is an
+
+agency, department, or other entity of the United States
+Government, the use, duplication, reproduction, release,
+modification, disclosure, or transfer of the Software, or any related
+documentation of any kind, including technical data and manuals,
+is restricted by a license agreement or by the terms of this
+Agreement in accordance with Federal Acquisition Regulation
+12.212 for civilian purposes and Defense Federal Acquisition
+Regulation Supplement 227.7202 for military purposes. The
+Software, Support Services, Services and Beta Releases were
+developed fully at private expense. All other use is prohibited.
+12.14 References. Unless otherwise specified in the applicable
+Order Form, Sysdig may refer to Customer as one of Sysdig’s
+customers and use Customer’s logo as part of such reference,
+provided that Sysdig complies with any Customer trademark usage
+requirements provided by Customer. Upon reasonable request,
+Customer will serve as a reference account for Sysdig, provided,
+however, that Sysdig will provide Customer with reasonable notice
+and obtain Customer’s consent before scheduling any reference
+activity. Furthermore, if so specified in the applicable Order Form,
+Sysdig may either: (a) issue a press release announcing the
+relationship between Sysdig and Customer, or (b) submit a joint
+press release to Customer for Customer’s approval, such approval
+not to be unreasonably withheld or delayed.
+12.1 5 Counterparts. This Agreement may be executed in
+counterparts, which taken together shall form one binding legal
+instrument. The Parties hereby consent to the use of electronic
+signatures in connection with the execution of this Agreement, and
+further agree that electronic signatures to this Agreement shall be
+legally binding with the same force and effect as manually executed
+signatures.
+Sysdig, Inc. |85 Second Street, Suite 800, San Francisco, CA 94105 | 415- 872 - 9473 | http://www.sysdig.com
+SUPPORT SERVICES POLICY
+(On Prem)
+DEFINITIONS
+1.1 “Error” means a failure of the Software to conform to the specifications set forth in the Documentation, resulting in the
+inability to use, or material restriction in, the use of the Software.
+
+1.2 “Start Time” means the time at which Sysdig first becomes aware of an Error.
+SUPPORT SERVICES POLICY
+Sysdig will provide Support Services to Customer through the portal located at https://support.sysdig.com or through other customer support
+center contacts, set forth below (the “Customer Support Center”). Customer will receive Updates, other software modifications or additions,
+procedures, or routine or configuration changes that may solve, bypass or eliminate the practical adverse effect of the Error. Customer will
+designate a certain number of employees or agents that will interface with the Customer Support Center, and submit Errors, requests or support
+tickets (the “Technical Support Contacts”). Customer is permitted to name as many Technical Contacts as allowed pursuant to the purchased
+Support Service Subscription. Customer’s non-named Technical Contacts may contact the Customer Support Center only in case of an
+emergency or on an exception basis, and Sysdig will respond to such Error submission and cooperate with the non-named Technical Contact,
+subject to later verification and involvement of a named Technical Support Contact. Additional named Technical Support Contacts may be
+permitted upon mutual agreement of the Parties.
+
+SUPPORT SERVICES SUBSCRIPTION
+Pursuant to the purchased Support Services Subscription, set forth in the Order Form, Sysdig shall provide and Customer shall purchase and
+maintain Premium Support Services. Customer will have access to the Customer Support Center 24 hours per day, 7 days a week. Submitted
+Errors will be classified by severity as set forth in the table below. Customer may assign eight (8) Technical Support Contacts, which may
+contact the Customer Support Center through any of the Customer Support Center Contacts, as set forth below.
+
+CUSTOMER SUPPORT CENTER CONTACT
+Pursuant to the purchased Premium Support Services Subscription, Customer may contact the Customer Support Center as follows:
+a) Telephone:
+a. USA Toll Free: 1- 888 - 4 - SYSDIG (+1- 888 - 479 - 7344)
+b. USA Regular: +1- 415 - 855 - 4DIG (+1- 415 - 855 - 4344)
+c. UK Toll Free: +44- 808 - 168 - 9DIG (+44- 808 - 168 - 9344)
+d. UK Regular: +44- 20 - 8049 - 7800
+b) Email: Create support ticket via email to support@sysdig.com.
+c) Portal: https://support.sysdig.com and each Technical Support Contact must register with the Customer Support Center on the portal,
+prior to submitting a ticket.
+d) Language: Support Services will be provided in English language
+
+5. EXCLUDED SUPPORT SERVICES.
+Sysdig shall not be obligated to fix any Error or problem:
+a. where the Software is not used for its intended purpose;
+b. where the Software has been altered, damaged, modified or incorporated into other software in a manner not approved by Sysdig;
+c. where the Software is a release that is no longer supported by Sysdig;
+d. which is caused by Customer’s or a third party’s software or equipment or by Customer’s negligence, abuse, misapplication, or use
+of the Software other than as specified in the Documentation; or
+e. which would be resolved by the Customer using an Update or newer version of the Software, or by adding hardware.
+
+If Sysdig determines that it has no obligation to fix the reported incident for one of the reasons stated above, the Parties may enter into a separate
+agreement authorizing Sysdig to provide additional services at Sysdig’s then-current professional services rates plus expenses.
+
+END OF LIFE POLICY. Customer acknowledges that new features may be added to the Software based on market demand and
+technological innovation. Accordingly, as Sysdig develops enhanced versions of the Software, Sysdig may cease to maintain and support older
+versions of the Software. Sysdig will use commercially reasonable efforts to provide Support Services with respect to older versions of the
+Software. Sysdig shall have no obligation to support Software outside of Sysdig’s stated EOS/EOL policy for the applicable Software. Such
+EOS/EOL policies shall be made available to Customer either in the accompanying Documentation or upon request and are subject to update
+from time to time in Sysdig’s reasonable discretion.
+Sysdig, Inc. |85 Second Street, Suite 800, San Francisco, CA 94105 | 415- 872 - 9473 | http://www.sysdig.com
+7. ERROR RESPONSE SERVICE LEVELS
+Customer shall submit each ticket with a severity level designation based on the definitions in the table below. Severity response
+times do not vary, whether Customer contacts the Customer Support Center via phone, email or portal. Sysdig shall respond to such ticket in
+accordance with the severity designation and validate Customer’s severity level designation or notify Customer of a proposed change in the
+severity level designation with justification for the change. Sysdig will provide continuous efforts to resolve Severity 1 issues until a workaround
+or resolution can be provided or until the incident can be downgraded to a lower severity. Sysdig will use reasonable efforts to meet the target
+response times for the Errors stated in the table below.
+
+Severity 1
+(Critical)
+Description Premium Support
+Services
+Any Error in the Software causing the Software to be unusable,
+resulting in a critical impact on the operation of the Software
+and there is no workaround.
+Sysdig will promptly: (i) assign a specialist to correct the Error;
+(ii) provide ongoing communication on the status of an
+Update; and (iii) begin to provide a temporary
+workaround or fix.
+Response Times
+Within 30 minutes
+Severity 2
+(Serious)
+An Error in a Software where the Software will operate but its
+operation is severely restricted. No workaround is available,
+and performance may be degraded, or functions are limited.
+Sysdig will promptly: (i) assign a specialist to correct the Error;
+and (ii) provide additional escalated Support Services as
+determined necessary by Sysdig.
+Response Times
+Within 2 hours
+Severity 3
+(Moderate)
+An Error in the Software where the Software will operate with
+limitations that are not critical to the overall operation, such as
+a workaround forces user and or a systems operator to use a
+time-consuming procedure to operate the system; or removes
+a non-essential feature.
+Sysdig will triage the request and may include a resolution in
+the next Update.
+Response Time
+Within 4 hours
+Severity 4
+(Low)
+An Error in the Software where the Software can be used with
+only slight inconvenience. All Software feature requests fall
+into this severity level.
+Sysdig will triage the request and may include a resolution in
+the next Update.
+Response Time
+Next business day