Gurucul Subscription License and Services Agreement

THIS GURUCUL SUBSCRIPTION LICENSE AND SERVICES AGREEMENT (“Agreement”) is entered into between Gurucul Solutions, LLC (“Gurucul”) and the customer identified on the order form that incorporates this Agreement by reference (the “Order Form”) (such customer, the “Customer”), and is effective as of the effective date of such Order Form (the “Effective Date”).

THIS AGREEMENT GOVERNS CUSTOMER’S USE AND ACCESS TO THE GURUCUL LICENSED PRODUCTS (DEFINED BELOW), WHETHER PURCHASED DIRECTLY FROM GURUCUL OR THROUGH AN AUTHORIZED RESELLER. By accessing, downloading, installing, or using the Gurucul Licensed Products, (a) Customer acknowledges that it has read and understands this Agreement and agrees to be legally bound by its terms on behalf of the company, organization, government entity, or other legal entity for which it is acting (for example, as an employee or official), or, if there is no such entity, on behalf of itself as an individual; and (b) Customer represents and warrants that it has the authority to act on behalf of and bind such entity (if any) to the terms of this Agreement.

Without limiting the foregoing, Customer (and its entity, if applicable) acknowledges that by submitting an Order Form for Gurucul Licensed Products, it has agreed to be bound by the terms of this Agreement.

1. DEFINITIONS

1.1  “Affiliate” means an entity that controls, is controlled by, or is under common control of a party to this Agreement, where control means ownership of more than fifty percent (50%) of the voting interest of such entity or party (but only for so long as such control exists).

1.2 “Agent Software” means any Gurucul software, used to collect data and submit for use with the applicable Licensed Products.

1.3 “Authorized Users” means Customer’s employees, consultants and third-party contractors accessing the Licensed Products on Customer’s behalf pursuant to the terms of this Agreement.

1.4 “Cloud Service” means access to Gurucul’s proprietary software-as-a-service risk analytics applications granted to Customer pursuant to an Order Form.

1.5  “Confidential Information” means any information disclosed, directly or indirectly, by one party (“Disclosing Party”) to the other (“Receiving Party”) pursuant to this Agreement that: (a) is designated as “confidential” or in some other manner to indicate its confidential nature, or (b) a person exercising reasonable business judgment would understand to be confidential based on the circumstances of its disclosure or the nature of the information itself. Notwithstanding anything to the contrary, the Licensed Products and Documentation are deemed to be Gurucul’s Confidential Information and Submitted Data is deemed to be Customer’s Confidential Information.

1.6 “CPI” means Consumer Price Index as measured by the US Bureau of Labor Statistics from the end term date and the previous 12 months.

1.7 “Data Ingest” means any data sent to and processed by the Licensed Products pursuant to the Usage Metrics and capacity limits set out in an Order Form.

1.8 “Data Rehydration” means the transfer of Submitted Data from cold storage to warm or hot storage (as applicable) pursuant to an Order Form.

1.9 “Data Transfer” means the transfer of Submitted Data from Gurucul back to Customer as set forth in an Order Form.

1.10 “Documentation” means Gurucul published documents relating to the operation and use of the Licensed Products consisting of the then-current online manuals and help guides made available to Customer within the Licensed Products or via the Gurucul website at support.gurucul.com.

1.11 “Licensed Products” means the Cloud Service, On-Premises Software, or Agent Software identified in the Order Form together with all Updates.

1.12 “Monitored Entity” means a person, device, service account or other identifying characteristic, as mutually agreed, to be monitored by the Licensed Products pursuant to the Usage Metrics set out in an Order Form. 

1.13 “On-Premises Software” means Gurucul’s proprietary software that is licensed for use on Customer devices (including virtual appliances) deployed on Customer’s premises as set forth in this Agreement and the Documentation.

1.14 “Order Form” means a mutually agreed and executed ordering document referencing this Agreement and setting forth the Licensed Products and/or Services to be provided to Customer as well as the applicable Fees, Subscription Term, Order Form Effective Date, and quantities related to such Licensed Products. Each Order Form will be governed by this Agreement and is incorporated herein by this reference.

1.15 “Order Form Effective Date” means the effective date of each Order Form, as set forth on the applicable Order Form (and if nothing is stated, shall be the last date executed between the parties of such Order Form.

1.16.   “Overage Rate” means the agreed rate at which Customer will pay Gurucul for Usage Overage.

1.17 “Professional Services” means any installation, configuration, Data Transfer, Data Rehydration, consulting, training and similar services provided by Gurucul related to the Licensed Products as identified in an Order Form.  

1.18 “Reseller” means a third party authorized by Gurucul to promote and resell the Licensed Products and Services.

1.19 “Services” means the Support Services, and/or Professional Services as applicable to be provided under this Agreement or Order Form.

1.20 “Submitted Data” means electronic content, data, and information submitted by or for Customer to the Cloud Service. Submitted Data does not include generic usage information reflecting the access or use of the Cloud Service by or on behalf of Customer or an Authorized User, including information on user visits, sessions, impressions, click through or click stream data as well as aggregated statistical or other analysis, information or data based on or derived from any of the foregoing (“Usage Data”).

1.21 “Subscription” means Customer’s right, for the Subscription Term, to possess, use and/or access the applicable Licensed Products.

1.22 “Subscription Term” means the period during which Customer is entitled to the Licensed Products as set forth in the applicable Order Form.  The Subscription Term will include the initial term set forth in an Order Form (the “Initial Term”) as well as any Renewal Period in accordance with Section 5.2.

1.23 “Support Services” means Gurucul’s then-current standard support services terms attached hereto as Exhibit A.  Gurucul shall not make any changes to the Support Services terms during the Subscription Term that materially reduce the overall level of the Support Services provided.

1.24 “Updates” means all updates and enhancements that Gurucul generally makes available at no additional charge to its customers of the version of the Licensed Products purchased hereunder who are current in payment of applicable Fees (defined below).

1.25 “Usage Metrics” means the metrics used to determine Customer’s access and use of the Licensed Products, including but not limited to, the number and description of Monitored Entities, types/numbers of Authorized Users, Data Ingest, Data Rehydration, or other mutually agreed criteria as set out in an Order Form.

1.26     “Usage Overage” means when Customer’s average monthly use for the preceding month of the Subscription Services exceeds the Usage Metric procured for that month.  

2. ACCESS AND USE OF THE LICENSED PRODUCTS; PROFESSIONAL SERVICES

• Access and Use of Licensed Products. Subject to Customer’s compliance with the terms of this Agreement and timely payment of all applicable Fees, during the Subscription Term Gurucul will:

(A) For Cloud Service Subscriptions.  Make the Cloud Service available to Customer pursuant to an Order Form for Customer’s internal business use at the Usage Metrics purchased by Customer in accordance with the Support Services documented in Exhibit A – Service Level Agreement.

(B) For On-Premises Software Subscriptions.   Customer may install and use the On-Premises Software on Customer provided hardware or virtual environments (“Asset(s)“) in accordance with applicable configuration parameters as set forth in the Documentation pursuant to the Usage Metrics and other terms of the Order Form.  Customer may make a reasonable number of copies of the On-Premises Software and Documentation solely for back-up or disaster recovery purposes on back-up Assets using the same operating system.  Such back-up copies may only be used to perform disaster recovery testing, or if the Asset(s) where the On-Premises Software is installed becomes inoperative.

(C) Provide Customer with Support Services at the level purchased by Customer;

(D) Protect Submitted Data in accordance with Section 7; and

(E) Provide Customer with Professional Services purchased by Customer (if any).

• Authorized Users. Only Authorized Users are permitted to access and use the Licensed Products. Customer is solely responsible for: (a) approving and maintaining access, identifying and authenticating Authorized Users and controlling against unauthorized access by Authorized Users including use or access that is inconsistent with the Usage Metrics purchased pursuant to an Order Form; (b) maintaining the confidentiality of usernames, passwords and account information (as applicable); (c) all activities that occur under its Authorized Users’ usernames, passwords or accounts as a result of Authorized Users’ access to the Licensed Products; and (d) ensuring Authorized Users’ abide by all applicable local, state, national and foreign laws applicable to Customer’s use of the Licensed Products.  Customer will notify Gurucul immediately of any unauthorized use of, or access to, the Licensed Products, and will use reasonable efforts to promptly stop any unauthorized access to or use of the Licensed Products.
• Restrictions. Customer may not directly or indirectly and may not authorize any third party to: (a) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, structure, ideas, algorithms, or associated know-how of, the Licensed Products, Documentation, or reconstruct, or discover, any hidden or non-public elements of the Licensed Products (except to the extent expressly permitted by applicable law notwithstanding this restriction); (b) translate, adapt, create derivative works from or modify the Licensed Products, Documentation, or any portion of any of the foregoing; (c) use the Licensed Products in any manner for the purpose of developing, distributing or making accessible products or services that compete with any or all of the Services; (d) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Licensed Products or any rights thereto; (e) use the Licensed Products, or sell or distribute any content or other portion thereof, for the benefit of, or allow access to the Licensed Products (or any content or other portion thereof) by, any third persons except as permitted under this Agreement; (f) transmit unlawful, infringing, harmful data or code either to or from the Licensed Products; (g) alter or remove any trademarks or proprietary notices contained in or on the Licensed Products or Documentation; (h) circumvent or otherwise interfere with any authentication or security measures of the Licensed Product, or otherwise interfere with or disrupt the integrity or performance thereof; or (i) otherwise use the Licensed Product and/or Services except as expressly permitted in this Agreement.
• Professional Services.  Gurucul will perform Professional Services as described in the Order Form, which identify additional terms or other deliverables for such Professional Services.  Customer agrees to provide Gurucul timely access to any Customer materials reasonably needed by Gurucul to perform Professional Services.  Subject to any limits as may be set forth in an Order Form, or as otherwise mutually agreed in writing by the parties, Customer will reimburse Gurucul’s reasonable travel and expenses incurred in providing Professional Services.  Except as otherwise set forth in the Order Form, any Professional Services ordered but not used within twelve (12) months of the date of the Order Form shall be cancelled, and no refund or credit shall be due to Customer.

3. FEES; PAYMENT; RECORD KEEPING

• Direct Purchases from Gurucul. Customer will pay Gurucul (as applicable), all fees of the type and amount and in accordance with the payment schedule set forth in the applicable Order Form (“Fees”). All Fees are non-cancellable, non-refundable except as otherwise set forth in this Agreement.
• Payment Terms. Unless otherwise set forth in the applicable Order Form, all Fees are due in advance for the term of the Agreement, and all invoices for Fees are due and payable in United States dollars within thirty (30) days from the invoice date, without deduction or setoff.  Interest accrues from the due date at the higher of 1.5% per month or the highest rate allowed by law. Customer is responsible for providing complete and accurate billing and contact information to Gurucul and notifying Gurucul of any changes to such information.
• Purchases Through a Reseller.  For any Licensed Products and/or Services purchased by Customer through a Reseller, the pricing and payment terms are between Customer and Reseller and all Fees and payments will be made directly to Reseller (“Reseller Terms“).  If a Reseller is entitled to terminate or suspend any Licensed Products and/or Services pursuant to the Reseller Terms and notifies Gurucul of such, Gurucul may suspend or terminate any Licensed Products and/or Services and Gurucul shall not be liable to Customer or to any third party for any liabilities, claims, or expenses arising from or relating to such suspension or termination in accordance with this Section 3. The Customer may elect to (a) designate a new authorized reseller, or (b) purchase directly from Gurucul at any time. In either case, Gurucul shall continue to provide all applicable services and maintenance to Customer in accordance with the terms of this Agreement for the remainder of the contract term.
• Taxes. Customer is responsible for all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of this Agreement other than taxes based on Gurucul’s net income or employment. Customer agrees to pay all such taxes directly to the applicable taxing authorities, or, if at any time Gurucul is required by law to collect such taxes from Customer, Customer will pay them directly to Gurucul within thirty (30) days after Gurucul issues an invoice. If Customer is legally entitled to an exemption, Customer shall provide a legally sufficient tax exemption certificate, and Gurucul shall not charge Customer any taxes from which it is exempt. If any deduction or withholding is required by law, Customer shall notify Gurucul and shall pay Gurucul any additional amounts necessary to ensure that the net amount that Gurucul receives, after any deduction and withholding, equals the amount Gurucul would have received if no deduction or withholding had been required.
• Record Keeping. Customer will maintain accurate and complete records as reasonably necessary to verify its compliance with this Agreement and upon Gurucul’s reasonable request, provide Gurucul with copies of such records.  Customer is entitled to use the Licensed Products according to the Usage Metrics of the applicable Order Form as further described in the Documentation.
• Overages.  Customer acknowledges that Gurucul may monitor Customer’s use of the Licensed Products for the purpose of verifying compliance with this Agreement.  Customer agrees when Usage Overage occurs, Gurucul will invoice Customer and Customer will pay such Usage Overage at Overage Rate in accordance with terms set forth in the order form. Except as otherwise specified in the Order Form, the Overage Rate will be set at 1.5 times the pricing set forth in the Order Form.
• Purchase Orders. Customer may issue a purchase order to facilitate payment under this Agreement however no additional or inconsistent terms of any such purchase order, or other form provided by Customer, will modify or supplement this Agreement, regardless of any failure of Gurucul to object to such terms and any such additional or inconsistent terms in the purchase order shall be null and void.

4. PROPRIETARY RIGHTS

• Ownership Rights. As between Gurucul and Customer, all rights, title and interest in and to all intellectual property rights in the Licensed Products and/or Services and Gurucul’s Confidential Information are and will remain owned exclusively by Gurucul and its licensors. Ownership in all derivatives, modifications, new functionalities, enhancements and customization related to the Licensed Products and/or Services created by Gurucul or by or for Customer will immediately vest in Gurucul upon creation. Unless otherwise specified in the applicable Order Form, all deliverables provided in the performance of Professional Services are owned by Gurucul and will be made available as part of the Licensed Products provided under this Agreement.  Nothing in this Agreement will preclude or restrict Gurucul from usingor exploiting any concepts, ideas, techniques, or know-how of or related to the Licensed Products and/or Services.  Other than as expressly set forth in this Agreement, no license, or other rights in or to the Licensed Products and/or Services or other Gurucul intellectual property rights are granted to Customer, and all such rights are expressly reserved to Gurucul and its licensors.
• Submitted Data. As between Customer and Gurucul, Submitted Data and Customer Confidential Information are and will remain owned exclusively by Customer. Customer hereby grants Gurucul the right to use, transmit, store, disclose, and otherwise process Submitted Data (subject to Section 7 ) for the sole purpose of providing the Cloud Services and as otherwise set forth in this Agreement.  Customer has and will retain sole responsibility for the accuracy, quality, integrity, legality, completeness, and appropriateness of the Submitted Data.
• Usage Data. Customer agrees that Gurucul may collect, use, and otherwise process Usage Data for its own internal industry analysis, benchmarking, analytics, marketing, and other internal business purposes (such as research and development). Gurucul will only disclose Usage Data if such Usage Data is in aggregate form and does not identify Customer, its Authorized Users, Submitted Data, or any third parties utilizing the Cloud Services.
• Feedback. To the extent that Customer provides any recommendations, suggestions, proposals, ideas, improvements, or other feedback regarding the Licensed Products or Documentation (“Feedback”), Customer hereby grants Gurucul an irrevocable perpetual license to use and further develop such Feedback without any restrictions or attribution.

5. TERM, RENEWAL AND TERMINATION; SUSPENSION

• Term. This Agreement will commence on the Effective Date and unless terminated earlier in accordance with the terms of this Agreement, will continue until all Order Forms have expired or have been terminated.  The term of each Order Form for the Licensed Products is the Subscription Term.
• Renewals. Unless otherwise provided in the Order Form, after the Initial Term, Subscriptions will automatically renew for additional one (1) year periods (each a “Renewal Period”) on the same terms unless either party gives the other notice of non-renewal at least sixty (60) days prior to the end of the Initial Term or then-current Renewal Period.   Renewal terms may include an adjustment in Fees contained to higher of CPI or 9% whichever is higher. Gurucul will invoice Customer for such Fees in advance at the start of the Renewal Period.
• Suspension of Licensed Products or Services.
  • (A) Without Notice. Gurucul will have the right to disable, suspend or restrict Customer’s access or use of the Licensed Products without further notice: (1) in situations involving actual or reasonably suspected violations of applicable law; (2) if Customer’s use of the Licensed Products breaches or jeopardizes the security of the Licensed Products; or (3) if Gurucul reasonably determines that Customer has breached Section 2.5 (Restrictions).
  • (B) With Notice. If any amount owing by Customer is overdue or if Customer is in material breach of this Agreement, Gurucul may, without limiting its other rights and remedies, suspend access and use of Licensed Products until such amounts are paid in full or the breach has been cured, provided Gurucul has given Customer at least ten (10) days prior written notice of its intent to suspend the Licensed Products. If Customer disputes the amounts charged on any invoice, it must communicate those to Gurucul within seven (7) business days of the receipt of such invoice (and pay undisputed amounts). Gurucul shall not exercise its right to charge interest or suspend Licensed Products as set forth in this Section 5.3 if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
• Termination. Either party may terminate this Agreement or any Order Form by written notice if the other party is in material breach of this Agreement, where such material breach is not cured within thirty (30) days after written notice of such breach from the non-breaching party or with immediate effect where such material breach cannot be cured.  For the avoidance of doubt, Customer’s noncompliance with Section 3is deemed a material breach of this Agreement.  This Agreement may be terminated by either party with immediate effect upon the occurrence of a Bankruptcy Event regarding the other party.  “Bankruptcy Event” means the occurrence of any one or more of the following events in respect to a party: (a) it ceases to carry on its business; (b) a receiver or similar officer is appointed for its business, property, affairs or revenues and such proceedings continue for forty-five (45) days; (c) it becomes insolvent, admits in writing its inability to pay debts generally as they come due, is adjudicated bankrupt, or enters composition proceedings, makes an assignment for the benefit of its creditors or another arrangement of similar import; or (d) proceedings under bankruptcy or insolvency laws are commenced by or against it and are not dismissed or withdrawn within forty-five (45) days.
• Effect of Termination. Upon the expiration or termination of this Agreement for any reason: (a) all outstanding Order Forms and access to the Licensed Products will automatically terminate; (b) Gurucul will invoice Customer for the Professional Services satisfactorily performed; (c) all other outstanding payment obligations of Customer will become due and payable immediately, and (d) all Submitted Data will be deleted, unless Customer notifies Gurucul to maintain the Submitted Data within five (5) business days of termination or expiration of the Agreement.  Customer may purchase Professional Services to facilitate Data Transfer services in accordance with the rates and requirements as set forth in an Order Form.  After five (5) business days, Gurucul will delete all Submitted Data, except if Gurucul is required to retain a copy of such Submitted Data for legal purposes, provided that such copy remains subject to the confidentiality provisions of this Agreement.
• Survival. The Sections titled “Fees; Payment; Record Keeping,” “Proprietary Rights,” “Term and Termination; Suspension,” “Confidentiality,” “Limitation of Liability,” and “General Provisions” will survive the expiration or termination of this Agreement for any reason.

6. CONFIDENTIALITY

• Confidentiality Obligations. The Receiving Party agrees not to disclose the Disclosing Party’s Confidential Information, except to the Receiving Party’s employees, independent contractors, Affiliates, advisors, auditors, attorneys, service providers, and prospective investors or purchasers, who have a need to know the information, are informed of the confidential nature of the Confidential Information and who have agreed in writing or are otherwise legally bound to treat the Disclosing Party’s Confidential Information in a manner consistent with Receiving Party’s duties under this Agreement.  The Receiving Party will not use the Disclosing Party’s Confidential Information except (i) as necessary to perform the Receiving Party’s duties under this Agreement; or (ii) in any other manner that this Agreement expressly authorizes. The Receiving Party will protect the Disclosing Party’s Confidential Information using the same degree of care that it uses with respect to its own proprietary information, but in no event less than reasonable care.
• Compliance with Legal Duties. If Confidential Information must be disclosed to a third party by reason of legal, accounting or regulatory requirements beyond the reasonable control of the Receiving Party, Receiving Party will: (a) assert the confidential nature of the information in the action or proceeding; (b) disclose only that portion of the Confidential Information that is minimally required to comply with the request; (c) promptly notify the Disclosing Party of the order or request within, wherever possible, at least fifteen (15) business days in advance of the disclosure; and (d) permit the Disclosing Party (at its own expense) to seek an appropriate protective order or other confidentiality protections, cooperating with any reasonable requests relating to confidentiality from Gurucul in the process.
• Exceptions. The confidentiality obligations under this Section 6will not apply in the event that any information (a) is or becomes generally known and available to the public through no fault or breach of this Agreement by the Receiving Party; (b) was rightfully in the Receiving Party’s possession at the time of disclosure without restriction or use; (c) was lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) was independently developed by the Receiving Party without breach of its confidentiality obligations.
• Return of Confidential Information. Upon expiration or termination of this Agreement for any reason, the Receiving Party shall (a) immediately cease use of the Disclosing Party’s Confidential Information; and (b) if requested by Disclosing Party, either promptly destroy or return all Confidential Information of the Disclosing Party; provided, however, that the Receiving Party may retain a reasonable number of copies of the Confidential Information for the sole purpose of satisfying legal or regulatory requirements regarding record and data retention that the Receiving Party is obligated to comply with, enforcing this Agreement or archiving consistent with good business practices. For the avoidance of doubt, such copies remain subject to confidentiality and restricted use provisions of this Agreement.

7. DATA PROTECTION AND PRIVACY

• Protection of Submitted Data. Gurucul will maintain appropriate administrative, physical, and technical safeguards for protection of the security and integrity of Submitted Data (“Security Program”). The Security Program includes industry standard practices designed to protect Submitted Data from unauthorized access, acquisition, use, disclosure, or destruction. Gurucul may periodically review and update the Security Program, provided that any such update does not materially reduce the overall level of security provided to Customer as described herein.
• Responsibilities of Gurucul. Gurucul shall not (a) modify Submitted Data, (b) disclose Submitted Data except as compelled by law or as expressly permitted in writing by Customer, or (c) access Submitted Data except to provide the Licensed Products and prevent or address service or technical problems, or at Customer’s request in connection with Customer support matters.  Notwithstanding the foregoing, Gurucul reserves the right to access, alter, and/or remove Submitted Data if such Submitted Data violates this Agreement, or negatively impacts Gurucul’s Licensed Products or Gurucul’s ability to provide products or services to any other customer.
• Data Privacy. Submitted Data may contain Personal Data which may be subject to laws restricting collection, use, processing of Personal Data.  “Personal Data” means any information relating to an identified or identifiable natural person. Customer agrees to use reasonable efforts to minimize inclusion of Personal Data in its Submitted Data. To the extent Gurucul processes any Personal Data on behalf of Customer as part of the Submitted Data, Gurucul will process such Personal Data solely for the purpose of performing its obligations under this Agreement. To the extent required by GDPR or any other legislation applicable to the Personal Data processed by Gurucul under this Agreement, the parties agree to negotiate in good faith and execute any such supplemental documents pertaining to the processing of Personal Data as reasonably necessary for the provision of Licensed Products under this Agreement.

8. REPRESENTATIONS AND WARRANTIES 

• Warranties. Each party represents that it has validly entered into this Agreement and that it has the power and authority to do so. Gurucul warrants (as applicable) that:
• Licensed Products shall substantially conform to Documentation during the then-current Subscription Term pursuant to an Order Form;
• Gurucul will not materially decrease the functionality of the Licensed Products described in the Documentation during the then-current Subscription Term;
• Gurucul will use industry standard measures to prevent the Licensed Products from introducing viruses, Trojan horses, worms, spyware, or other such malicious code into the Licensed Products, and
• Gurucul will perform the Professional Services in a diligent and workmanlike manner.
• Customer’s exclusive remedy and Gurucul’s entire liability for a breach of the above warranties shall be the correction of the deficient Licensed Products and/or re-performance of the Professional Services within a reasonable time that caused the breach of warranty, or, if Gurucul cannot substantially correct the deficiency in a commercially reasonable manner, Customer may end the deficient Licensed Products and/or Professional Services and Gurucul will refund to Customer the Fees for the terminated Licensed Products and/or Processional Services that Customer pre-paid to Gurucul prorated for the period following the effective date of termination.
• Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1 OF THIS AGREEMENT, GURUCUL DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR OTHERWISE ARISING FROM A COURSE OF DEALING OR RELIANCE. GURUCUL DOES NOT WARRANT THAT THE LICENSED PRODUCTS AND/OR SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, THAT THE LICENSED PRODUCTS WILL BE COMPATIBLE WITH ANY PARTICULAR DEVICE, THAT ANY DATA PROVIDED BY OR THROUGH THE LICENSED PRODUCTS AND/OR SERVICE WILL BE ACCURATE, OR THAT ITS SECURITY MEASURES WILL BE SUFFICIENT TO PREVENT THIRD PARTY ACCESS TO DATA OR CUSTOMER’S NETWORK, SYSTEMS OR DEVICES.

9. INDEMNIFICATION

• Indemnification by Gurucul. Gurucul will defend and indemnify any claim brought against Customer by a third party to the extent such claim alleges that Customer’s use of the Licensed Products (as authorized in this Agreement) directly infringes a U.S. patent, any copyright, or misappropriates a trade secret (a “Claim”).  Gurucul will pay all damages (including reasonable attorney fees) finally awarded against Customer by a court of competent jurisdiction (or amounts agreed in a monetary settlement) in any such Claim.  If any such Claim is brought or threatened, or if Gurucul reasonably believes that a Licensed Products may become the subject of an infringement claim, Gurucul may, at its sole option and expense: (i) procure for Customer the right to continue to use the applicable Licensed Products; (ii) modify the Licensed Products to make it non-infringing; (iii) replace the affected aspect of the Licensed Products with non-infringing technology having substantially similar capabilities; or (iv) if Gurucul determines none of the foregoing is commercially practicable, terminate this Agreement and refund Customer any prepaid Fees related to the Licensed Products prorated for the remainder of the Subscription Term.  Notwithstanding the foregoing, Gurucul’s defense and indemnity obligations do not apply to (1) any modification of the Licensed Products made by anyone other than Gurucul; to the extent that the Licensed Products would not be infringing but for such modification, (2) any use of the Licensed Products in combination with software, products or services not provided by Gurucul; to the extent that the Licensed Products would not be infringing but for such combination, (3) any Third-Party Applications, or (4) Customer’s use of the Licensed Products not in compliance with the terms of this Agreement; to the extent the Licensed Products would not be infringing but for such non-compliance. THIS INDEMNITY STATES GURUCUL’S ENTIRE LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDY, FOR ANY THIRD-PARTY CLAIMS RELATING TO THE LICENSED PRODUCTS.
• Indemnification by Customer. Customer will defend and indemnify any claim brought against Gurucul by a third party to the extent such claim relates to the Submitted Data (if used by Gurucul in accordance with this Agreement). Customer will pay all damages (including reasonable attorney fees) finally awarded against Gurucul (or amounts agreed in a monetary settlement) with respect to such claim.  THIS INDEMNITY STATES CUSTOMER’S ENTIRE LIABILITY, AND GURUCUL’S EXCLUSIVE REMEDY, FOR ANY THIRD-PARTY CLAIMS RELATING TO THE SUBMITTED DATA.
• Procedure. The defense and indemnity obligations above are conditioned upon the indemnified party providing the indemnifying party with: (i) prompt written notice, (ii) sole control over the defense and settlement of, and (iii) all information and assistance reasonably requested by the indemnifying party in connection with the defense or settlement of, any claim.  The indemnified party may appear in connection with such claims, at its own expense, through counsel reasonably acceptable to the indemnifying party.

10. LIMITATION OF LIABILITY

• Exclusion of Damages. IN NO EVENT WILL GURUCUL OR Customer BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF PROFITS, SALES, OR BUSINESS, LOSS OF ANTICIPATED SAVINGS, LOSS OF USE OR CORRUPTION OF SOFTWARE, COSTS OF SUBSTITUTE GOODS OR SERVICES, DATA, INFORMATION, WORK STOPPAGE OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
• Limitation of Liability. GURUCUL’S OR CUSTOMER’S AGGREGATE CUMULATIVE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE LICENSED PRODUCTS PROVIDED HEREUNDER WILL NOT EXCEED THE APPLICABLE SUBSCRIPTION FEES PAID OR OWED TO GURUCUL FOR THE LICENSED PRODUCTS GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEEDING THE CLAIM.  THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT EXPAND THIS LIMIT. THE LIABILITY LIMITATIONS UNDER THIS SECTION 2WILL NOT APPLY TO: (1) CUSTOMER’S OBLIGATIONS TO PAY FEES DUE UNDER THIS AGREEMENT; (2) CUSTOMER’S MATERIAL BREACH OF SECTION 2.5 (RESTRICTIONS); (3) AMOUNTS FINALLY AWARDED PURSUANT TO EITHER PARTY’S INDEMNITY OBLIGATIONS UNDER SECTION 9; OR (4) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

11. GENERAL PROVISIONS

• Publicity.  Subject to Customer’s consent, Gurucul may list Customer’s name in a representative list of clients on Gurucul’s website, press releases and marketing collateral, in accordance with any written trademark policies that Customer provides Gurucul. Subject to Customer’s consent, Gurucul may issue a press release announcing selection of Gurucul by Customer. Gurucul may display Customer logo on Gurucul’s website and marketing collateral for purposes of identifying Customer as a client of Gurucul’s.
• Governing Law & Dispute Resolution. This Agreement will be governed by and construed under the laws of the State of California without reference to conflict of laws principles.  The provisions of the United Nations Convention of Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Acts will not apply to this Agreement in any manner whatsoever. The parties will be subject to the exclusive jurisdiction of the state and federal courts located in Los Angeles County, California, and the parties agree and consent to the exclusive jurisdiction and venue of such courts.
• Notices. Any required notice will be given in writing by customary means with receipt confirmed at the address of each party set forth above, or to such other address as either party may substitute by written notice to the other. Notices will be deemed to have been given at the time of actual delivery in person, one (1) day after delivery to an overnight courier service, or three (3) days after deposit via certified mail.  Gurucul may also provide operational notices through the Licensed Products.
• Force Majeure. Neither party will be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in its performance under this Agreement (except for payment of Fees) due to any cause beyond its reasonable control, including without limitation: elements of nature or acts of God, war, riots, civil disorders, rebellions, revolutions, acts or threats of terrorism, strikes, labor disputes, failure of utilities or telecommunications, or other causes beyond the reasonable control of the affected party  (each a “Force Majeure Event”). The party suffering a Force Majeure Event shall use reasonable efforts to mitigate against the effects of such Force Majeure Event.
• Assignment. Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party, which shall not be unreasonably withheld. Any attempted assignment in violation of this provision shall be void. Notwithstanding the foregoing, either party may assign this Agreement without the other party’s consent: (a) to an Affiliate in connection with a corporate reorganization; or (b) to a successor entity in the event of a merger, acquisition, or sale of all or substantially all of its business or assets, provided that the assignee is not a direct competitor of the non-assigning party. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
• S. Government Rights. If Customer is a branch agency or instrumentality of the United States Government, the following provision applies: the Licensed Products and Documentation comprise of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and are provided to the Government (a) for acquisition by or on behalf of civilian agencies, consistent with the policy in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies in 48 C.F.R. 227.7202-1 and 22.7202-3.
• Export Control. Each party shall comply with all applicable export/sanctions laws and regulations in connection with providing and using the Licensed Products. Without limiting the foregoing, (i) each party represents that it is not listed on any list of entities or individuals who are restricted from receiving U.S. services or U.S. items (including but not limited to the list of Specially Designated Nationals) nor is it owned or controlled by any such listed entity; and (ii) Customer shall not, and shall ensure that Authorized User or Suppliers do not, violate any export control/sanctions prohibition, regulation, or other restriction or cause any such violation to occur.
• Counterparts.  This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.  Counterparts to this Agreement transmitted by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as a signed original.
• Entire Agreement. This Agreement (together with any Order Forms and linked terms) contains the entire agreement of the parties concerning the subject matter of this Agreement and supersedes all prior communications, representations, agreements and understandings, either oral or written between the parties with respect to said subject matter. This Agreement may only be amended or waived by a writing signed by both parties.
• Modifications.  Gurucul may modify the terms of this Agreement (including any terms or policies referenced herein, as applicable) from time to time, with notice to Customer as set forth in Section 11.3 (Notices) or by posting the updated and/or modified Agreement on Gurucul’s website at gurucul.com. Customer can review the most current version of the Agreement at any time by visiting the website. The revised Agreement will become effective on (a) the date set forth in the notice or (b) the effective date of the posted change (above), whichever is later. If Customer (or any Authorized User) accesses or uses the Licensed Products after the effective date, such use will constitute Customer’s acceptance of any revised terms and conditions.
• Miscellaneous.  This Agreement will not create any agency, employment relationship, partnership or other form of joint enterprise between the parties. If a provision of this Agreement is unenforceable or invalid, the provision will be revised so as to best accomplish the objectives of the parties.  This Agreement is in the English language only, which language will be controlling in all respects, and all versions of this Agreement in any other language will be for accommodation only and will not be binding on the parties to this Agreement. Waiver of any term of this Agreement or forbearance to enforce any term by either party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement.  Any provision found to be unlawful, unenforceable or void shall be severed from the remainder of this Agreement, and the remainder of this Agreement will continue in full force and effect without said provision. There are no third-party beneficiaries to this Agreement, and Customer acknowledges that Gurucul will have no obligations or liability whatsoever to any third parties with which Customer does business.

EXHIBIT A

SERVICE LEVEL AGREEMENT

This Gurucul Service Level Agreement for the applicable Licensed Products are issued under and forms part of the Gurucul Subscription License and Services Agreement (“Agreement“). Capitalized terms not defined herein shall have the meaning set forth in the Agreement.

Gurucul Service will be available 98% of the time as measured by Gurucul over each calendar month of the Subscription Term and subject to exclusions set forth under the exclusions section.

Definitions

• Covered Services: Gurucul Cloud Services which includes Gurucul SaaS, Gurucul SIEM, UEBA and Identity Analytics Services
• Maximum Available Minutes: the number of minutes that a given Gurucul cloud service is enabled for a Customer during an Applicable Period.
• Downtime: means with respect to the Covered Service: The Customer is not able to access the user interface.
• Downtime Period: means with respect to the Covered Service: five consecutive minutes of Downtime. Intermittent Downtime for a period of less than five minutes will not be counted towards any Downtime Period. Downtime as part of Scheduled Maintenance will not be counted towards any Downtime Period.
• Availability Percentage: for a given service calculated as Maximum Available Minutes less Downtime Period divided by Maximum Available Minutes multiplied by 100.

1. Production Solution Monthly Availability

2. Maximum Service Credit

The aggregate maximum number of Service Credits to be issued by Gurucul to a Customer for any and all Downtime Periods that occur in a single annual billing cycle will not exceed 7% of the amount due by Customer for the applicable Covered Service for the applicable annual cycle. Financial Credits will be made in the form of monetary credit applied to future use of the Covered Service. 

3. Exclusions

A Customer will not be entitled to a service credit if it is in breach of its Agreement, including payment obligations. The service level commitment does not apply to any downtime, suspension or termination of the Services that results from:

• Account suspension or termination due to Customer’s breach of the Agreement.
• Routine scheduled maintenance
• Unscheduled, emergency maintenance or an emergency caused by factors outside Gurucul’s reasonable control, including force majeure events such as acts of God, acts of government, flood, fire, earthquake, civil unrest, acts of terror, Customer Content, Third Party Content or Internet Service Provider failures or delays.
• A Customer’s equipment, software or other technology, or third-party equipment, software or technology (other than those which are under Gurucul’s control).
• Failures resulting from software or technology for which Gurucul is not responsible under the Agreement.
• Customers’ ability or inability to operate the G-Router and data collector software is addressed by Gurucul support services. For purposes of the Service Level Commitment, the G-Router and data collector software is excluded from the calculation of the availability of the Gurucul SIEM and cloud services.

No Service Level Commitment is provided for free, proof-of-concept, trial services

4. SERVICE CREDIT CLAIMS

To receive a service credit, a Customer must file a claim for such credit within fifteen (15) days following the end of the calendar month in which the Service Level Commitment was not met for an applicable Gurucul Cloud Service, by contacting Gurucul at support@gurucul.com with a complete description of the downtime, how the Customer was adversely affected, and for how long. Gurucul reserves the right to deny the service credit if the Customer does not qualify.

The service credit remedy set forth in this Service Level Schedule is the Customer’s sole and exclusive remedy for the unavailability of any applicable Gurucul Cloud Service.

5. SUPPORT

Authorized Users can log support requests of all severity levels through Gurucul Support Portal located at (support.gurucul.com) or emailing support@gurucul.com with relevant details including severity level of the request 24 hours per day, 7 days per week and 365 days per year.

6. Customer responsibilities

Notwithstanding anything to the contrary herein, Customer agrees to:  (a) ensure that its environment complies with all applicable Gurucul Documentation as to system specifications; (b) follow Gurucul’s procedures, including those specified herein, when contacting Gurucul Support; (c) provide Gurucul reasonable access to all necessary information, systems, and personnel to resolve any issues or other errors in the Licensed Products; (d) promptly implement all Updates to the Licensed Products provided by Gurucul under this Agreement, and (e) use reasonable efforts to internally resolve any Support questions prior to contacting Gurucul Support.

Gurucul’s has adopted a Shared Responsibility Model for its SaaS environment and SaaS Controls. Gurucul uses a Cloud Services provider to provide compute, storage, data and networking services as well as the infrastructure necessary to support these services across the globe. Gurucul in turn provides an application, Gurucul Security Analytics and Operations platform (REVEAL) on top of its Cloud Services Provider(s) services to its customers. This document defines the responsibilities of each party in terms of security, compliance, and operational management.

Shared Responsibility Model

Customer owns the data and identities. Customer is responsible for protecting the security of their data and identities, on-premises resources, and the cloud components they control. Customer is also responsible for supporting, managing and maintaining all software and hardware not provided by Gurucul.

Gurucul is responsible for providing and managing the application, services, and the environment they run in. There is a shared responsibility for Network Access Controls where Gurucul will enable network access to the application using explicit network access based on documented customer requirements. Customers are responsible for and will be provided access to review these rules at their request.

This shared responsibility model helps clarify the roles of both the Customer and Gurucul. By understanding and agreeing on these responsibilities, both parties can work together to maintain a secure environment, protect sensitive data, and ensure compliance with relevant regulations. Regular reviews and updates to the model may be necessary to adapt to new security threats and changes in technology.