Master Services Agreement

Updated June 26, 2019

This Master Services Agreement (“Agreement”) contains the terms and conditions that govern your use of the Services (as further defined herein) and is a binding contract between you, or the company, entity or organization you represent (collectively “You” or “Your”), and FogLogic Inc., a Delaware corporation (“FogLogic”). You and FogLogic may hereinafter be referred to singularly as a “party” or collectively as the “parties.”

You accept this agreement by executing an order form that references this agreement or by using the services. Once accepted, you are bound by the terms of this agreement to the fullest extent of the law. If you do not agree to be bound by this agreement, you must not access or use the services or download or install any related software.

If you are entering into this agreement on behalf of a company or other legal entity, you warrant that 1) you have the authority to do so and 2) “you” will refer to the company or entity bound by this agreement.

If you have executed a separate master saas agreement or other agreement that explicitly supersedes this agreement for access to and use of the services, the terms of that other agreement shall control.

1. DEFINITIONS

1.1 “Agreement” means this Master Services Agreement, the Order Form, and any other addenda, amendments or additional writings which reference, and state that said writings are incorporated into or governed by, this Master Services Agreement.

1.2 “Data Security Policy” means FogLogic’s written policies and procedures regarding data processing, data storage and data transmission which conform with local laws and regulations.

1.3 “Documentation” means the implementation and user documentation, in any form, provided by FogLogic to You regarding the implementation of, access to or use of the Services.

1.4 “Professional Services” means implementation services rendered by FogLogic which provide You or Your Users access to the Services or training, consulting or advisory services related to You and Your Users using the Services.

1.5 “Order Form” means FogLogic’s separate order form, which details the specifics of Your purchase of or subscription to the Services including pricing and payment information, number of users, and other pertinent information related to Your use of the Services.

1.6 “Services” means the cloud-based systems monitoring and analytics software services, including any application programming interfaces, that are provided to You by FogLogic.

1.7 “Software” means any software, downloadable or otherwise, provided to You for installation on Your owned or rented Equipment, for the implementation or use of the Services.

1.8 “Support” means standard maintenance of, upgrade of and routine improvements to the Services or Software in addition to technical support to You or Your Users.

1.9 “Your Data” or “Data” means all data or information transmitted or stored by You or FogLogic related to Your use of the Services.

1.10 “Your User(s)” or “User(s)” means a person authorized by You to use the Services, Software, Documentation and for whom You have paid the required purchase, subscription or use fees.

1.11 “Equipment” means any equipment and ancillary services You need in order to install the Software or to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like.

Other defined terms set forth herein may be defined in the Order Form or other documents comprising the Agreement.

2. SERVICES, LIMITED SOFTWARE LICENSE, SUPPORT AND AVAILABILITY

2.1 FogLogic will use commercially reasonable efforts to provide You with access to and use of the Services in accordance with the terms and conditions set forth herein and in one or more applicable Order Forms.

2.2 FogLogic grants You a worldwide, non-transferrable, non-sublicensable and non-exclusive right for the Term of this Agreement to use the Software solely in connection with the Services. If Software is not distributed to You under the terms of this Agreement, as set forth in an Order Form, then no license is granted.

2.3 Unless otherwise stated in an Order Form, FogLogic will provide you with Support that shall include:

  • Automatic updates or technical support by electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Pacific Time, with the exclusion of federal holidays (“Support Hours”).
  • Email initiation of helpdesk tickets during Support Hours by emailing support@foglogic.com – FogLogic will use commercially reasonable efforts to respond within one (1) business day.

2.4 The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance. If You request maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance.

3. RESTRICTIONS AND RESPONSIBILITIES

3.1 You agree that You will only use the Services in compliance with all applicable laws and FogLogic’s policies. You are responsible for the proper use of each User you authorize to use the Services, Software or Documentation. You hereby agree to indemnify and hold harmless FogLogic against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Your use of Services. Although FogLogic has no obligation to monitor Your use of the Services, FogLogic may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

3.2 If You receive Software under this Agreement, You agree:

a. You will not, directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any Software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by FogLogic or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party (unless You are an approved FogLogic partner according to FogLogic’s Partner Policy and Partnership Agreement); or remove any proprietary notices or labels;

b. You will not copy, sell, lease, assign, distribute or transfer in any manner or form, in whole or in part, the Software;

c. You will not use the Services or any Software to develop or distribute any software product or service that competes in the marketplace with the Software or Services.

3.3 You may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

3.4 You shall be responsible for ensuring that only Your Users access or use the Services, Software Documentation.

3.5 You shall be responsible for obtaining and maintaining any Equipment necessary to use the Services. You shall also be responsible for maintaining the security of the Equipment, Your account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Your account or the Equipment with or without Your knowledge or consent.

4. CONFIDENTIALITY; PROPRIETARY RIGHTS; DATA SECURITY; AND DATA RETENTION

4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of FogLogic includes non-public information regarding features, functionality and performance of the Services. Your Proprietary Information includes non-public data provided by You to FogLogic to enable the provision of the Services, or, “Your Data”. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

4.2 You shall own all right, title and interest in and to Your Data. FogLogic shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Professional Services or Support, and (c) all intellectual property rights related to any of the foregoing.

4.3 Notwithstanding anything to the contrary, FogLogic shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Your Data and data derived therefrom), and FogLogic will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services or Software and for other development, diagnostic and corrective purposes in connection with the Services and other FogLogic offerings, and (ii) disclose such data solely in the aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

4.4 FogLogic shall provide the Services in accordance with its Data Security Policy and Privacy Policy. See, https://foglogic.com/privacy-policy/ .

4.5 FogLogic shall retain or store all Your Data in accordance with the online data and log retention, and data and log archival, periods agreed to by the parties as set forth in an Order Form (each, a “Data Retention Period”). After any Data Retention Period, FogLogic will destroy or delete the applicable portion of Your Data.

5. PAYMENT OF FEES

5.1 You will pay FogLogic the then applicable fees described in an Order Form for the Services and Professional Services in accordance with the terms therein (the “Fees”). If Your use of the Services exceeds the Services ordered as set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), You shall be billed for such usage and You agree to pay the additional fees in the manner provided herein. FogLogic reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to You (which may be sent by email). If You believe that FogLogic has billed You incorrectly, You must contact FogLogic no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to FogLogic’s support department.

5.2 Full payment for invoices issued by FogLogic must be received by FogLogic on the earlier of thirty (30) days after the date of the invoice or the payment due date on the applicable Order Form. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Your use and access to the Services. You shall be responsible for all taxes associated with Services other than U.S. taxes based on FogLogic’s net income.

6. TERM AND TERMINATION

6.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

6.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. You will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, FogLogic will make all Your Data available to You for electronic retrieval for a period of thirty (30) days. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, indemnity and limitations of liability.

7. WARRANTY AND DISCLAIMER

FogLogic shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by FogLogic or by third-party providers, or because of other causes beyond FogLogic’s reasonable control, but FogLogic shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled disruption of the Services. However, FogLogic does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND FOGLOGIC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

8. INDEMNITY

FogLogic shall hold You harmless from liability to third parties resulting from infringement by the Services of any United States patent or any copyright or misappropriation of any trade secret, provided FogLogic is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; FogLogic will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by FogLogic, (ii) made in whole or in part in accordance with Your specifications, (iii) that are modified after delivery by FogLogic, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where You continue allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Your use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be, or are believed by FogLogic to be infringing, FogLogic may, at its option and expense (a) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for You a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Your rights hereunder and provide You a refund of any prepaid, unused fees for the Services.

9. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, FOGLOGIC AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND FOGLOGIC’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY YOU TO FOGLOGIC FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT FOGLOGIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. MISCELLANEOUS

10.1 Severability of Provisions. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

10.2 Assignments. This Agreement is not assignable, transferable or sublicensable by You except with FogLogic’s prior written consent. FogLogic may transfer and assign any of its rights and obligations under this Agreement without consent.

10.3 Complete Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.

10.4 Relationship of the Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and You do not have any authority of any kind to bind FogLogic in any respect whatsoever.

10.5 Attorneys’ Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.

10.6 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

10.7 Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. The parties agree that any action to interpret or enforce this Agreement shall be brought in the courts located in Santa Clara County in the State of California.

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