Cyxtera End User License Agreement for AppGate SDP Software (Government)
Updated: 8 February 2019
This Cyxtera End User License Agreement for AppGate SDP Software (Government) (this “EULA”) governs Cyxtera's provision and use of AppGate SDP Software, Hardware, Hosted Services, Professional Services, and Support, as the same may be described in an Order Form.
USE OF ANY CYXTERA PRODUCTS, OR ANY OF THEIR COMPONENTS, IS EXPRESSLY SUBJECT TO AND GOVERNED BY THIS EULA. IF YOU DO NOT AGREE WITH ANY OF THE TERMS OF THIS EULA, YOURSOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE CYXTERA PRODUCTS.
By using any Cyxtera products, or any of their components, you consent to receiving communications from Cyxtera electronically, and you acknowledge and agree that all agreements, notices, disclosures and other communications that Cyxtera provides to you electronically satisfy any legal requirement that such communications be in writing.
- Definitions. Capitalized terms used and not otherwise defined in this EULA have the following meanings: 1.1. “Agreement” means this EULA, together with any applicable Order Form.
1.2. “Authorized User” means the Licensee employees or agents who may be authorized to use the Products. 1.3. “Cyxtera” means the Cyxtera entity identified on the Order Form. In case the Order Form does not specify, then Cyxtera means Cyxtera Federal Group, Inc., a Delaware corporation with a principal place of business at 2333 Ponce De Leon Boulevard, Suite 900, Coral Gables, Florida, USA.
1.4. “Deliverables” means the tangible results or output that Cyxtera delivers to Licensee in connection with the provision of Professional Services pursuant to a SOW. Deliverables does not include Technical Elements that may be embedded in or delivered with Deliverables.
1.5. “Documentation” means the then-current user manuals, training materials and technical manuals relating to the Products provided or made available to Licensee pursuant to this Agreement.
1.6. “Effective Date” is the earliest of: (a) the date specified as the “Effective Date” in the Order Form, (b) the License Start Date, or (c) Delivery of the applicable Products.
1.7. “Hardware” means the hardware specified on an Order Form and purchased by Licensee with the Software.
1.8. “Hosted Services” means the system whereby Cyxtera Software is made available for access on servers owned or controlled by Cyxtera and accessed by Licensee via the Internet as a service.
1.9. “License Start Date” is the date specified in the Order Form for when the Term starts. If no specific License Start date is specified, then the License Start Date will be the Effective Date.
1.10. “Licensee” is the entity identified on an Order Form as a purchaser of Cyxtera Products. 1.11. “Order Form” means all written order forms or other ordering documentations entered into by Cyxtera and Licensee, referencing this EULA and specifying the license type, pricing, license term, delivery and other specific terms and conditions applicable to the Products purchased thereunder. Order Form may include, as applicable, a SOW or a “quote” that is signed by the Licensee.
1.12. “Products” means, as applicable, Software, Hardware, Hosted Services, Professional Services, and Support.
1.13. “Professional Services” means services provided by Cyxtera pursuant to this Agreement other than Support and services incidental to the Hosted Services. Professional Services may be specified in an Order Form or SOW referencing this EULA.
1.14. “Software” means the AppGate SDP software, as the same may be specified in an applicable Order Form.
1.15. “SOW” means a Statement of Work entered into by the Parties that references this EULA.
1.16 “Support” means the maintenance and support services specified in the Support Terms.
1.17. “Support Terms” means Cyxtera's current maintenance and support terms which are attached hereto as Exhibit A.
1.18. “Technical Elements” means such tools, templates, know-how, data, modules, components, designs, utilities, subsets, objects, program listings, models, methodologies, programs, systems, analysis frameworks, leading practices, or specifications (including, without limitation, “Cyxtera Business Models”) that are used by Cyxtera while performing Services. For the avoidance of doubt, Technical Elements includes refinements, changes, enhancements or modifications to Technical Elements made as a result of performing Services for Licensee.
2. License Grant
2.1. Cyxtera hereby grants to Licensee, and Licensee hereby accepts from Cyxtera, the nonexclusive, nontransferable, non-sublicensable right during the Term to install, display, operate and use the Products for Licensee's internal business purposes.
2.2. The license type(s) for the Products will be designated on the applicable Order Form. If the Order Form does not specify license types, the following rules apply:
(a) All Products are licensed for Licensee’s internal business use only.
(b) Authorized Users are limited to a reasonable number, consistent with this Agreement. Authorized Users may be limited to a set number of registered or named users.
(c) Term licenses are for 1 year only.
2.3. Licensee will ensure that all Authorized Users and any others provided access to the Products abide by the terms of this Agreement. Licensee will be and remain fully responsible for the actions or omissions of such users with respect to the Products. Cyxtera may deploy the Products with license key or other technology that prohibits use of the Products beyond the applicable license term or license parameters.
2.4. Except as expressly provided in this Agreement, Licensee will not: (a) make any copies, modifications or derivative works of the Products, (b) remove, alter, obscure or fail to reproduce in any way any proprietary notices of Cyxtera and its suppliers (including copyright and trademark notices) on any of the Products, (c) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Software or Hosted Services or (d) directly or indirectly distribute, disclose, sub-license, market, rent, outsource, use on a service bureau basis, lease or transfer to any third party the Products. Except as expressly provided in this Section 2, Licensee is granted no rights or licenses whatsoever in or to the Products or any other Cyxtera products, intellectual, proprietary or personal rights. All rights and licenses not expressly granted in this Agreement are reserved by Cyxtera.
3. Ownership of Products
3.1. Cyxtera and its licensors are, and at all times will remain, the sole and exclusive owners of all right, title and interest, throughout the world (including all intellectual proprietary rights), in and to all Products, and any modifications, derivative works or copies thereof, whether made by or on behalf of Cyxtera or Licensee. Licensee receives or otherwise obtains no right, title or interest of any kind in the Products under this Agreement, other than the limited license rights expressly set forth in Section 2. Except for Hardware, Licensee obtains only a limited license right to the Products and, notwithstanding of any use of the words “Purchase”, “sale” or like terms in connection with this Agreement, no ownership rights are conveyed to Licensee under this Agreement.
3.2. If Licensee provides any comments, criticisms, or other feedback relating to the Products to Cyxtera (collectively, “Feedback”), such Feedback will be deemed non-confidential and non-proprietary information for purposes of this Agreement. Cyxtera will have no obligation to Licensee or any third party with respect to such Feedback, and will be free to use and exploit such Feedback in any form or manner and for any purpose and without payment of any consideration.
4. Delivery and Installation
4.1. Delivery of Products (“Delivery”) is complete on the earliest date that: (a) the Products are made available to Licensee for use, (b) the Products are used by Licensee, or (c) physical delivery of the Products to Licensee, when applicable.
4.2. Unless otherwise specified in an Order Form, Cyxtera has no responsibility for installation or instruction on use of the Products.
5. Cyxtera Support
5.1. Cyxtera will provide Support for the Products as set forth on an Order Form and in accordance with the Support Terms.
5.2. Cyxtera has no obligation to provide Support except as specified in an Order Form. Unless otherwise specified in an Order Form, all Hosted Services include Support at no additional charge during the applicable Term.
6. Service Level Agreement (SLA)
6.1. For Hosted Services only, and unless otherwise agreed in an Order Form, Cyxtera provides a Service Level Agreement as set out in Exhibit B.
7.1. Cyxtera is not the manufacturer of the Hardware. Any support provided in connection with the Hardware is provided as a convenience only, and Cyxtera will pass through applicable warranties from the Hardware manufacturers, as such manufacturers may permit. In no event will any such warranty survive more than 1 year from Delivery.
8. Professional Services
8.1. If specified and agreed to in an Order Form or SOW, Cyxtera may provide certain Professional Services to Licensee. In the absence of a specific, separate written agreement governing such Professional Services in the Order Form or SOW, the terms set out in this Section 8 will apply. After execution of an Order Form or SOW for Professional Services, any change in the scope or fees for the same must be agreed upon in writing by the parties.
8.2. The fee for the Professional Services is as set forth in the Order Form or SOW. In addition, if set forth on the Order Form or SOW, Licensee is responsible for all travel and living expenses (“Expenses”) incurred by Cyxtera’s applicable employees, agents and contractors (collectively, “Cyxtera Personnel”) while traveling to and from Licensee facilities to perform Professional Services. Unless otherwise agreed in the Order Form or SOW, Fees for Professional Services and reasonable Expenses will be billed monthly, or after the conclusion of the Professional Services.
8.3. Upon Licensee’s request, Cyxtera Personnel may perform Professional Services at Licensee’s facilities. In all such cases, Cyxtera will seek to minimize disruptions in the continuity and identity of Cyxtera Personnel assigned to work with Licensee. In addition, upon Licensee’s request and for reasonable cause, Cyxtera will remove any Cyxtera Personnel from Licensee’s premises. While performing Professional Services at non-Cyxtera locations as directed by Licensee, Cyxtera Personnel will comply with Licensee’s applicable codes of conduct and procedures (including policies regarding occupational health and safety requirements, building access, and physical and information security) which are provided in writing in advance by Licensee. In addition, Cyxtera will cooperate, as reasonably requested by Licensee, with Licensee’s other contractors or suppliers in providing services related to Professional Services.
8.4. Licensee must use reasonable efforts to: (a) provide Cyxtera Personnel with such information, cooperation and support as may reasonably be required for Cyxtera to provide the Professional Services, (b) permit Cyxtera Personnel to access such of Licensee’s systems, networks, premises and property as is necessary to perform the Professional Services, and ensure that Cyxtera is granted sufficient authorization to use any third party systems, programs, or networks necessary to provide the Professional Services, (c) ensure that all necessary consents, authorizations and licenses have been obtained so that Cyxtera’s provision of the Professional Services does not breach any statutory or regulatory provisions (of whatever jurisdiction) relating to the use of and access to personal data, and (d) ensure the health and safety of Cyxtera Personnel engaged in providing the Professional Services at Licensee’s premises.
8.5. Each Order Form or SOW may specify the Deliverables to be provided by Cyxtera. Deliverables made for Licensee as part of the engagement will become the property of Licensee at the moment such item is fixed in a tangible medium, and all rights, title and interest therein will vest in Licensee and will be deemed to be a “work made for hire” (as defined in the Copyright Act of 1976). As between Cyxtera and Licensee, Cyxtera retains all rights to the Technical Elements, provided, however, Cyxtera hereby grants to Licensee a perpetual, worldwide, nontransferable, non-exclusive, royalty-free, fully paid-up license to use, copy, modify and prepare derivative works of the Technical Elements provided to Licensee in connection with Professional Services for the limited purpose of Licensee being able to use the Deliverables for its internal purposes in connection with the related Products.
9. Fees and Payment
9.1. Following execution of an Order Form or SOW, Cyxtera may issue an invoice to Licensee that incorporates by reference the accepted Order Form and reflects the Fees to be paid by Licensee. Licensee must pay to Cyxtera the license fees (“License Fees,” which may be for Software or Hosted Services), hardware fees (“Hardware Fees”), fees for Professional Services (“PS Fees”), and Support fees (the “Support Fees”, and, together with the License Fees, Hardware Fees, and PS Fees, the “Fees”) set forth on the applicable Order Form to the address designated on the invoice. Licensee must pay all Fees in accordance with the terms of the Order Form and in each instance within 30 days following Cyxtera's invoice date. All payment obligations to pay Fees hereunder are non-cancellable, non-refundable and non-contingent. Licensee may not set off any amounts owing to Licensee against any payments owing to Cyxtera.
9.2. Excluding taxes based on Cyxtera's net income, Licensee is liable and responsible for paying all applicable taxes, and all duties and customs fees relating to Licensee's receipt or use of the Products, whether or not Cyxtera invoices Licensee for such taxes, duties or customs fees, unless Licensee timely provides Cyxtera with a valid tax exemption or direct pay certificate showing Licensee is exempt from such payments. If Cyxtera is required to pay any such taxes, duties or customs fees, Licensee will reimburse Cyxtera for such amounts in accordance with Section 9.1, and Licensee will indemnify, defend and hold harmless Cyxtera for any such taxes, duties and customs fees and any related costs, interest and penalties paid or payable by Cyxtera with respect thereto.
10. Term and Termination
10.1. Unless otherwise set forth on an Order Form, the term of this Agreement commences on the Effective Date and continues for 1 year after the License Start Date (the “Term”). Any renewals or extensions must be agreed in writing by the parties.
10.2. Licensee may terminate this Agreement if Cyxtera materially breaches this Agreement and fails to correct the material breach within 30 days (or such additional cure period as the non-breaching party may authorize in writing) following receipt of written notice from Licensee.
10.3. Upon termination of this Agreement for any reason: (a) all payment obligations to Cyxtera will become immediately due and owing, (b) Licensee must immediately cease using the Software and Hosted Services and return all Documentation to Cyxtera, and (c) Licensee must also return to Cyxtera or destroy all copies of Cyxtera's Confidential Information in every form. Licensee must certify in writing to Cyxtera that it has performed the foregoing obligations. Sections 3, 7, 8, 10.3, 11, 12, 13, 14, 15, and 16 will survive any termination of this Agreement in accordance with their respective terms. In the event of any termination hereunder, Licensee will not be entitled to any refund of any payments made by Licensee.
11. Representations and Warranties
11.1. Each party represents and warrants to the other party that: (a) it has all necessary right, power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution and delivery of this Agreement, and the performance of its obligations hereunder, do not conflict with and will not result in a breach of any other agreement to which it is a party or by which its assets are bound, and (c) this Agreement constitutes the legally valid and binding obligation of such party enforceable against it in accordance with its terms, except as such enforcement may be limited by applicable law.
11.2. Cyxtera further represents and warrants to Licensee that the Software will function substantially in accordance with the Documentation for 30 days from delivery to Licensee when used in accordance the Documentation and terms of this Agreement. Cyxtera's obligation, and Licensee's remedy, for a breach of the warranty contained in this Section 11.2 will be for Cyxtera, in its sole discretion, to: (a) repair or replace the Software so that it substantially conforms to the Documentation, or (b) in the event Cyxtera is unable to repair or replace the Software after exercising commercially reasonable efforts to do so, provide Licensee with a pro-rata refund of the fees paid to Cyxtera for the Software that did not substantially conform to the Documentation.
11.3. The warranty in Section 11.2 will not apply: (a) if the Products are not used in accordance with the Documentation and the terms of this Agreement, (b) if any nonconformance is caused in whole or in part by a modification to, or combination of, the Products by any party other than Cyxtera, (c) if any nonconformance is caused in whole or in part by Licensee's failure to use any new or corrected version of the Software made available by Cyxtera, and (d) to the Hardware, if applicable.
11.4. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 11, PRODUCTS ARE PROVIDED “AS IS” AND CYXTERA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH RESPECT TO PRODUCTS OR ANY OTHER PRODUCTS OR SERVICES PROVIDED PURSUANT TO OR IN CONNECTION WITH THIS AGREEMENT. CYXTERA EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL WARRANTIES ARISING FROM CONDUCT, COURSE OF DEALING OR CUSTOM OF TRADE, AND ALL WARRANTIES OF TITLE AND NON-INFRINGEMENT. THIS CLAUSE DOES NOT LIMIT OR DISCLAIM ANY OF THE WARRANTIES SPECIFIED UNDER FAR 52.212-4(o) AND FOR THIS AGREEMENT, THE “PARTICULAR PURPOSE” FOR THE PRODUCTS IS AS DEFINED IN THE PRODUCT DESCRIPTION PROVIDED BY CYXTERA. CYXTERA DOES NOT WARRANT THAT PRODUCTS ARE OR WILL BE ERROR-FREE OR THAT THE USE OR OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR THAT ALL ERRORS OR ISSUES WITH PRODUCTS CAN OR WILL BE CORRECTED.
12.1. Each party will retain in confidence all non-public information and know-how disclosed pursuant to this Agreement, whether oral or in writing, that is either designated as proprietary or confidential or, by the nature of the circumstances surrounding disclosure, should in good faith be treated as proprietary or confidential, including, but not limited to, the terms of this Agreement (“Confidential Information”), using at least the same standard of care used by it to protect its own confidential information, but in no event less than a reasonable standard of care. The receiving party will use the Confidential Information and copy it only to the extent required to accomplish the intent of this Agreement, and disclosure will be restricted to those individuals who have a need to know and have been made aware of and consent in writing to be bound by similar restrictions as those contained herein. For purposes of clarity, Cyxtera Confidential Information will include the Products and the Documentation.
12.2. The parties' obligations of non-disclosure under this Agreement will not apply to Confidential Information which the receiving party can demonstrate: (a) is or becomes a matter of public knowledge through no fault of the receiving party, (b) was rightfully in the receiving party's possession prior to disclosure by the disclosing party, (c) subsequent to disclosure, is rightfully obtained by the receiving party from a third party in lawful possession of such Confidential Information, or (d) is independently developed by the receiving party without reference to Confidential Information. Furthermore, the receiving party will be allowed to disclose Confidential Information of the disclosing party if that party is required by law or court order to disclose such Confidential Information, provided that, to the extent permitted by applicable law, the party disclosing any Confidential Information pursuant to a legal duty provides advance written notice of such disclosure to the party whose Confidential Information may be disclosed.
13.1. Subject to applicable law, Cyxtera will indemnify Licensee against claims, demands, suits or actions (each, a “Claim”) brought against Licensee by any third party alleging that Licensee's use of the Products in accordance with the terms of this Agreement constitutes a direct infringement or misappropriation of such third party's patent claims, copyright or trade secret rights, and Cyxtera will pay damages finally awarded against Licensee with respect to such Claims.
13.2. Cyxtera's obligations set forth in Section 13.1 will not apply if the alleged infringement or misappropriation results, in whole or in part, from: (a) modifications made to the Products by anyone other than Cyxtera, (b) use of the Products other than in accordance with the Documentation and the terms of this Agreement, (c) Licensee's failure to use any new or corrected version of the Products made available by Cyxtera, (d) any Third Party Components, (e) any Licensee content or other specific materials that Licensee uses or uploads into the Products, (f) use of the Products in combination with any third party hardware, software, database or materials, or (g) Licensee's negligence or willful misconduct.
13.3. In the event of a Claim under this Section 13, Cyxtera will have the option at its expense to: (a) procure for Licensee the right to continue to use the Software that is the subject matter of the Claim, (b) replace or modify the Software that is the subject matter of the Claim to make them non-infringing, or (c) if the foregoing remedies are not commercially practical, seek to suspend or terminate access to the infringing Software. In case of such suspension or termination, Cyxtera will provide a pro rata refund of any prepaid Fees with respect to usage of Products so suspended or terminated.
13.4. Licensee must promptly notify Cyxtera of a Claim after Licensee becomes aware thereof, and Cyxtera will have the sole right to control the defense or settlement of the Claim. Cyxtera will have no obligation to indemnify Licensee for any amounts paid in settlement of any Claim if such settlement is affected without Cyxtera’s prior consent. Licensee's failure to deliver prompt notice to Cyxtera after Cyxtera becomes aware of such matter will relieve Cyxtera of any liability to Licensee under this Section 13. Licensee will cooperate fully with Cyxtera and its legal representatives in the investigation of any potential Claim.
13.5. This Section 13 states Cyxtera's sole obligation, and Licensee's sole and exclusive remedy, with respect to any intellectual property infringement arising from, or related to, Licensee’s use of the Products.
14. Limitation on Liability
14.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY TO THIS AGREEMENT OR ANY OF ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES BE LIABLE TO THE OTHER PARTY HEREUNDER OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL OR BUSINESS PROFITS, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR COMPUTER FAILURE, DELAY OR MALFUNCTION), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.
14.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CYXTERA'S TOTAL AGGREGATE LIABILITY TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY AND ALL CLAIMS AND DAMAGES ARISING FROM OR OUT OF THIS AGREEMENT (WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) WILL IN NO EVENT EXCEED THE FEES PAID BY LICENSEE TO CYXTERA DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH DAMAGES.
Subject to the Licensee’s security requirements, during the Term and for a period of 2 years thereafter, Cyxtera may audit Licensee's facilities, records and use of the Products to determine Licensee's compliance with the terms and conditions of this Agreement. Such audits will occur during regular business hours, upon reasonable notice, consistent with Licensee’s applicable security measures and must be conducted in a manner designed to limit disruption to Licensee's business. In the event an audit reveals that Licensee has underpaid any fees or charges owing to Cyxtera, or that Licensee is using the Products in an unauthorized manner, Cyxtera must submit a claim for any uncompensated use.
16.1. Governing Law. This Agreement will be interpreted and construed in accordance with the federal laws of the United States, without regard to conflict of law principles, but excluding (a) the Uniform Computer Information Transactions Act, and (b) the United Nations Convention on Contracts for the Sale of Goods. Nothing contained in this Section 16.1 will prevent either party from seeking injunctive relief from any court of competent jurisdiction.
16.2. Force Majeure. Neither party will be liable for any loss, damage or delay resulting from any event beyond such party's reasonable control, and delivery and performance dates will be extended to the extent of any delays resulting from any such event. Each party will promptly notify the other upon becoming aware that any such event has occurred and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement.
16.3. Complete Agreement. This Agreement is the complete and exclusive statement of the agreement between Licensee and Cyxtera relating to the use of the Products. Any purchase order or other document issued by Licensee in connection with Licensee’s purchase of the Products (a “Purchase Order”) will be placed pursuant to, and subject to, this Agreement. No terms contained in a Purchase Order issued in connection with a purchase of Products will be binding on Cyxtera.
16.4. Separate Signed Agreements. Notwithstanding Section 16.3, if Licensee has entered into a separate, written agreement signed by Cyxtera for use of the Products, the terms and conditions of such other agreement will prevail over any conflicting terms or conditions in this Agreement.
16.5. Assignment. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Licensee, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Cyxtera in its sole discretion in each and every instance. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. Any assignment in violation of the foregoing will be null and void.
16.6. Independent Contractors. Nothing in this Agreement may be construed to create an agency, joint venture, partnership or other form of business association between the parties. Neither party has the right or authority to make any contract, representation or binding promise of any nature on behalf of the other party, and neither party may hold itself out as having such right or authority.
16.7. Commercial Items. The Products and Professional Services are “commercial items” as that term is defined at FAR 2.101. If Licensee is a US Federal Government (Government) Executive Agency (as defined in FAR 2.101), Cyxtera provides the Products, including any related documentation, technical data, and/or professional services in accordance with the following: (a) if acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (“DoD”), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and software customarily provided to the public as defined in this Agreement; or (b) if acquired by or on behalf of any Executive Agency within the DoD, the Licensee acquires, in accordance with DFARS 227.7202‐3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Agreement. In addition, DFARS 252.227‐7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative Agency or Federal Judicial Agency shall obtain only those rights in technical data and software customarily provided to the public as set forth in this Agreement. If any Federal Executive Agency, Federal Legislative Agency, or Federal Judicial Agency has a need for rights not conveyed under the terms described in this Section, it must negotiate with Cyxtera to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement to be effective. The terms of this Section regarding U.S. Government Rights are in lieu of, and supersede, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this Agreement. All other use is prohibited.
16.8. Restricted Rights. The Products are classified as “Commercial Computer Products” and “Commercial Computer Documentation” developed at private expense, contain confidential information and trade secrets of Cyxtera and its licensors, and are subject to “Restricted Rights” as that term is defined in the Federal Acquisition Regulations. Contractor/Manufacturer is: Cyxtera Federal Group, Inc., 2333 Ponce De Leon Boulevard, Suite 900, Coral Gables, Florida 33134 Attention: Legal Counsel.
16.9. No Waiver. The failure on the part of either party to exercise any right or remedy hereunder will not operate as further waiver of such right or remedy in the future or any other right or remedy.
16.10. Headings. The headings in this Agreement are for purposes of reference only and are not intended to affect the meaning or interpretation of this Agreement.
16.11. Severability. In the event that any provision of this Agreement is held invalid or unenforceable in any circumstances by a court of competent jurisdiction, the remainder of this Agreement, and the application of such provision in any other circumstances, will not be affected thereby.
16.12. Counterparts. Order Forms may be executed in one or more counterparts, including facsimile, PDF, and other electronic copies, each of which will be deemed to be an original instrument and all of which together with this EULA will constitute a single agreement.
16.13. Notices. All official notices (including any notices regarding breach, termination, renewal, etc.) required or permitted hereunder must be in writing and must be delivered personally or sent by certified, registered mail or next day express mail or courier, postage prepaid. Any such notice will be deemed given: (a) when so delivered personally, (b) the day after, when sent by next day express mail or courier, or (c) 3 days after, when sent by certified or registered mail, to the address set forth on the applicable Order Form.
16.14. No Third-Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties hereto, and no other person or entity will be a direct or indirect beneficiary of, or will have any direct or indirect cause of action or claim in connection with, this Agreement.
16.15. Regulatory Matters. The Products are subject to the export control laws of various countries, including without limit the laws of the United States. Licensee may not submit the Products to any government agency for licensing consideration or other regulatory approval without the prior written consent of Cyxtera, and will not export the Products to countries, persons or entities prohibited by such laws. Licensee will also be responsible for complying with all applicable governmental regulations of the country where Licensee is registered, and any foreign countries with respect to the use of the Products by Licensee or its Authorized Users.
16.16. Dispute Resolution. In the event of a dispute between the parties, the Federal Government end user referred to as Licensee in this Agreement agrees that Cyxtera shall have standing and direct privity of contract to bring a claim directly against the Licensee in a court of competent jurisdiction or an agency board of contract appeals. The parties agree that this Agreement is subject to 41 U.S.C. Chapter 71, Contract Disputes. Failure of the parties to this Agreement to reach resolution on any dispute or request for equitable adjustment, claim, appeal or action arising under or relating to this Agreement shall be a dispute to be resolved in accordance with the clause at FAR 52.233-1, Disputes, which is incorporated herein by reference.
17. Cyxtera Contact
For any questions about this EULA, contact Cyxtera as follows:
Cyxtera Federal Group, Inc.
2333 Ponce De Leon Boulevard, Suite 900
Coral Gables, Florida 33134 USA
Attention: Legal Department
[END OF EULA TEXT – EXHIBIT A FOLLOWS]
Cyxtera Support Terms
Updated: 8 February 2019
IMPORTANT NOTICE: THESE SUPPORT TERMS (THESE “TERMS”) APPLY TO THE LICENSED USE OF CYXTERA PRODUCTS (AS DEFINED BELOW) UPON PURCHASE OF SUPPORT (AS DEFINED BELOW). THE EULA (AS DEFINED BELOW) GOVERNS ANY USE OF THE PRODUCTS; ANY CAPITALIZED TERMS NOT DEFINED IN THESE TERMS WILL HAVE THE MEANINGS ASCRIBED TO THEM IN THE EULA.
1. Overview. These Terms describe the policies under which Cyxtera provides maintenance and technical support services (“Support”) for its proprietary software services and products (“Software”) and related hardware (“Hardware,” and together with Software, “Products”) to its customers (each, a “Licensee”).
Support Availability (during contracted support hours)
Based on Support purchased
Production Down Incident
Response in 4 Business Hours or less
High Severity Incident
Response in 8 Business Hours or less
Medium Severity Incident
Response in 2 Business Days or less
Low Severity Incident
Response in 3 Business Days or less
Online Support Portal
Maintenance Releases, Minor Releases and Major Releases.
NOTE: “Business Hours” and “Business Days” are measured based on the applicable Support Hours set out in the following table.
Cyxtera Support Contacts and Hours
M-F, 8:00am - 5:00pm Eastern US (excluding US bank holidays)
AppGate SDP Support: 24x7x365 phone support for Production Down or High Severity Incidents only
+1-888-533-6365 Note: for Support outside standard Support Hours, Customer must open a case via the support portal and call dedicated support number
Europe, Middle East, and Africa (EMEA)
M-F, 08:00 - 17:00 CET (excluding Swedish national holidays) AppGate SDP Support Only: 24x7x365 phone support for Production Down or High Severity Incidents only
Support is provided for the Software pursuant to the separate license agreement under which Licensee has purchased Support (the “EULA,” including any applicable Order Forms) and is subject to the terms and conditions of that EULA and the terms of these Support Terms. Support is provided for the term specified herein, or for the period otherwise specified in the EULA.
2.1. “Cyxtera” means the Cyxtera entity identified on the Order Form. In case the Order Form does not specify, then Cyxtera means Cyxtera Federal Group, Inc., a Delaware corporation with a principal place of business at 2333 Ponce De Leon Boulevard, Suite 900, Coral Gables, Florida 33134.
2.2. “Customer Technical Personnel” means a qualified individual, knowledgeable in Licensee’s systems and business and who has been trained in use of the Products by basic product training (self-study or instructor-led). Each Customer Technical Personnel must have a login for the support portal using his or her valid company domain email address.
2.3. “Documentation” means the user guide, help information or other documentation generally provided by Cyxtera to Licensees.
2.4 “Evaluation Versions” means any Products provided on a no-charge or evaluation basis.
2.5. “Incident” means each individual issue with the Products reported to Cyxtera.
2.6. “Previous Version” means upon a commercially available release of the Products (“New Version”), any previously released version(s) of the Products will be deemed a Previous Version. Licensee may replace the Previous Version (including all installed copies) with the New Version. Licensee may not use the New Version of the Products and the Previous Version of the Products at the same time in a Production Environment.
2.7. “Production Environment” is the Licensee’s production instance of the Products.
2.8. “Update” means error corrections, patches, or modifications to the Products made generally available by Cyxtera at no additional fee (other than shipping charges if applicable) to its customers contracted to receive applicable Support during the Support Term. Updates may include “Maintenance Releases,” “Minor Releases,” or “Major Releases.”
3. Scope of Support
3.1. In General
Support consists of the following: (a) web-based submissions of Incidents submitted by up to the number of designated Customer Technical Personnel specified in these Support Terms, (b) Updates of the Products, (c) access to an online secure site that contains license keys and latest product downloads, and (d) the provision of guidance and troubleshooting to Licensee in connection with questions and issues arising from the following Licensee activities with respect to the Products of the following nature:
(a) Installation and Downloads: Support for installation includes providing guidance and troubleshooting in connection with Licensee’s downloading and installing of the Software.
(b) Basic Configuration Issues: Support for configuration includes troubleshooting Licensee’s configuration settings for existing installations on Supported Platforms (as defined below) to ensure proper operation and connectivity.
(c) Usage Issues: Cyxtera qualified personnel will answer Licensee’s "how to" questions related to standard Products usage.
(d) New Version Issue: Support for issues regarding replacing a Previous Version with a New Version of the Products.
3.2. SLA for Hosted Services
For Hosted Services only, and unless otherwise agreed in an Order Form, Cyxtera provides a Service Level Agreement (SLA) as set out in Exhibit B to the EULA.
3.3. Efforts to Correct the Products
Cyxtera will make commercially reasonable efforts to correct bugs or other errors in the Products. Cyxtera is not required to correct every bug, error, or problem with the Products reported to Cyxtera.
Except for AppGate SDP Support issues, reported issues will only be progressed during normal working hours (unless otherwise agreed in an Order Form).
3.4. Support Exclusions
The following are excluded from Cyxtera’s Support obligations: (a) Products that are used on or in conjunction with hardware or software other than as specified in the applicable Documentation, (b) altered or modified Products, unless altered or modified by Cyxtera, (c) defects in the Products due to accident, hardware malfunction, abuse or improper use, (d) defects in the Products which have been corrected in a New Version of the Products made available to Licensee, (e) any version of the Products for which Support have been discontinued by Cyxtera, (f) Evaluation Versions of the Products or other Products provided at no charge, (g) training, customization, integration and any issues arising from non-standard usage of the Products, and (h) any on-site services or remote access services (unless Cyxtera requests remote access to assist Cyxtera in understanding an issue). In all cases, Cyxtera only provides Support in connection with Products purchased from Cyxtera or an authorized reseller.
Cyxtera has no obligation to accept calls or messages from, or otherwise interact with, personnel other than the designated Customer Technical Personnel.
3.5. Product Versions Covered
Cyxtera will provide Support only for the Products as specified in an Order Form. Cyxtera’s Support obligations do not cover third-party hardware, operating systems, networks, or software.
3.6. Platforms Supported
Cyxtera supports use of the Products only on the platforms specified in the Product technical specification supplied by Cyxtera with the Products (the “Supported Platforms”).
4. Submitting Incidents
4.1. Who May Submit Incidents
Licensee must designate authorized Customer Technical Personnel at time of Purchase (at least one), unless otherwise specified, who will be the person registering the license. That individual may submit change requests to the list of authorized Customer Technical Personnel in writing through the channel(s) specified for the plan selected. Unless specified in an Order Form, Licensee may have no more than 5 Customer Technical Personnel at once. Licensee may substitute Customer Technical Personnel in its discretion.
4.2. How to Submit Incidents
To ensure the fastest response to an Incident, Customer Technical Personnel should use the Support Portal located at http://support.cryptzone.com. The Support Portal provides access to Cyxtera’s self-help knowledge base, download services as well as viewing and creation of new support cases.
Requests can also be logged by sending email to firstname.lastname@example.org. AppGate SDP Support Licensees can also contact Cyxtera via the support hotline after opening an electronic ticket request.
Once an incident has been submitted, the ‘initial response’ is defined as the period in which initial investigations into the problem are made and resolution details or a plan of action are defined. Response time is deemed to commence from when the Cyxtera Helpdesk has been notified of any issue within normal working hours or from the commencement of normal working hours following receipt of an issue.
4.3. Escalation of Incidents
If Licensee requests escalation of an existing Incident, the Customer Technical Personnel should:
• Call the Support Phone number on the Cyxtera website,
• State that this is an escalation of an existing Incident and provide the case number and support agent responsible if possible, and
• Provide Licensee name and contact details.
In the unlikely event that the Support team does not respond, the Customer Technical Personnel should get in touch with the dedicated Customer Account Manager to assist with the escalation. If a Licensee needs to escalate an ongoing incident, the Customer Technical Personnel should email email@example.com well as the Account Manager with a clear subject: Escalation.
The escalation response expectations are:
• During Business Hours: Response within 2 hours of the acknowledged escalation request, and
• After Business Hours: For Production Down escalations, an initial response should be expected within 4 elapsed hours of the acknowledged escalation request. For all other severity levels and questions, 1 business day of the acknowledged escalation request.
5. Support Response and Incident Resolution
5.1. Cyxtera Incident Response
For each Incident reported by Licensee in accordance with these procedures, Cyxtera will:
(a) Confirm receipt of the reported Incident within the acknowledgement time specified in these Support Terms.
(b) Set a Severity Level for the Incident in accordance with the terms below.
(c) Use commercially reasonable efforts to respond to the Incident within the time specified in these Support Terms.
(d) Analyze the Incident and, as applicable, verify the existence of the problem(s) resulting in the Incident, which may include requesting that Licensee provide additional information, logs, and re-execution of commands to help identify the root cause and dependencies of the reported issue.
(e) Give Licensee direction and assistance in resolving the Incident.
(f) Keep a record of ongoing communications with Licensee.
(g) Use commercially reasonable efforts to resolve the Incident in accordance with the target response times set forth in these Support Terms.
(h) Upon request of Licensee, discuss Severity Level and ongoing communication time frame.
Cyxtera may modify the Incident settings.
6. Severity Levels
Cyxtera will prioritize Incidents according to the following criteria:
(a) “Production Down” cases are the highest priority and receive first attention. In such cases, the Products are either completely inoperable or inaccessible to all of Licensee’s users.
(b) “High Severity” cases indicate an issue has severely impacted the performance of the Product’s intended use and is causing a material and adverse impact to the majority of Licensee’s users.
(c) “Medium Severity” cases reflect an issue that has an impact on the performance or functionality of the Products as documented but it is impacting the minority of the Licensee’s users.
(d) “Low Severity” cases reflect an issue that has a minimal impact on the performance or functionality of the Products or is a recommendation for future development or product improvement.
7. Resolution and Closure of Incidents
Incidents will be closed in the following manner:
(a) For solvable issues, depending on the nature of the issue, the resolution may take the form of an explanation, recommendation, usage instructions, workaround instructions, or advising Licensee of an available software fix.
(b) In the event that custom or unsupported plug-ins or modules are used, Cyxtera may ask, in the course of attempting to resolve the issue, that the Licensee remove any unsupported plug-ins or modules. If the problem disappears upon removal of an unsupported plug-in or module, then Cyxtera may consider the issue to be resolved. Supported plug-ins or modules are defined as those listed and defined as supported in in the Cyxtera Documentation.
(c) For issues outside of scope of Support, Cyxtera may also close issues by identifying the Incident as outside the scope of the Support or arising from a version, platform, or usage case which is excluded from these Support Terms.
(d) Cyxtera may close a case if the Customer Technical Personnel has not responded to two attempts or more made by Cyxtera to collect additional information required to solve the incident.
(e) Licensee may request Incidents be re-opened. At Cyxtera’s sole discretion, Incidents will be reopened for further investigation if the Incident is deemed to be solvable.
[END OF EXHIBIT A TEXT – EXHIBIT B FOLLOWS]
EXHIBIT B TO CYXTERA EULA Service Level Agreement (Hosted Services Only) For Hosted Services only, and unless otherwise agreed in an Order Form, Cyxtera provides a Service Level Agreement as follows: 1. Service Level Agreement 1.1. Subject to the terms of this Exhibit B, the Hosted Services will be available 99% of the Scheduled Uptime Minutes, measured on a monthly basis (the “SLA Commitment”). If Cyxtera fails to meet the SLA Commitment, Licensee will be eligible for a credit (an “SLA Credit”) calculated as set out below. 1.2. Cyxtera will issue SLA Credits to Licensee, as applicable, as follows: (a) Within 60 days of the end of the applicable month, Licensee must note the SLA failure and request a credit in writing (email suffices), providing appropriate supporting information. (b) Cyxtera will confirm the SLA failure and issue SLA Credits based on the actual Availability Percentage and the credit table set out below. 1.3. All SLA Credits are based upon a monthly calculation of Availability Percentage applied to applicable Amount Subject to Service Level Credits. (a) SLA Credit Formulation and Table:
Availability Percentage = Scheduled Uptime Minutes - Unscheduled Outage Minutes / Scheduled Uptime Minutes
SLA Credit Percentage
98% to <99%
1.4. SLA Definitions: (a) “Amount Subject to Service Level Credits” means the monthly amount due (or the calculated pro rata equivalent) for the month subject to the SLA Commitment. (b) “Availability Percentage” means that percentage of time, measured monthly, calculated in accordance with the formula set out above. (c) “Normal Business Hours” means M-F 5:00am – 5:00pm Eastern US time (excluding US bank holidays). (d) “Scheduled Uptime Minutes” means the total minutes during Normal Business Hours in the applicable month. (e) “Unscheduled Outage Minutes” means minutes during Normal Business Hours during which Cyxtera does not meet the SLA Commitment for reasons other than scheduled maintenance or due to a Force Majeure event. 1.5. General Rules with respect to the SLA Commitment: (a) Hosted Services will be deemed available unless:
(i) a User gets an error response to an attempt to access the Hosted Services during two or more consecutive 90-second intervals, or (ii) data stored in the Hosted Services becomes inaccessible.
(b) Cyxtera will use best efforts to complete all scheduled maintenance outside of Normal Business Hours. Scheduled maintenance during Normal Business Hours must be (a) limited to no more than 15 minutes per incident, and no more than 2 incidents per month, and (b) upon no less than 3 days’ advance written notice to Licensee. If scheduled maintenance does not meet these criteria, the applicable time will be counted as Unscheduled Outage Minutes. (c) Emergency maintenance can occur when jointly agreed to by Licensee and Cyxtera. Cyxtera will provide maximum practical notice for such maintenance. Licensee’s agreement to such request may not be unreasonably withheld. (d) Cyxtera will not be liable to Licensee, or provide any SLA Credits for any failure to meet the SLA Commitment to the extent that such failure is attributable to the following: (a) acts, omissions or errors of Licensee or a third party, (b) breaches of the Agreement by Licensee, (c) failure of Licensee’s or a User’s software, hardware, systems or connections, or (d) Force Majeure.
[END OF EULA – EXHIBIT B TEXT]