HomeMy WebLinkAboutC19-087 SecureWorksDocuSign Envelope ID: DED30508-7851-4552-8DB6-0615419D1FD4
END USER LICENSE AGREEMENT
BY SIGNING THIS END USER LICENSE
AGREEMENT ("AGREEMENT"), YOU
REPRESENT AND WARRANT THAT YOU
HAVE AUTHORITY TO BIND THE INDIVIDUAL
OR ENTITY IDENTIFIED ON THE SIGNATURE
PAGE HERETO. THE EFFECTIVE DATE OF
THIS AGREEMENT IS THE EARLIER OF THE
DATE YOU SIGN THIS AGREEMENT OR THE
DATE YOU DELIVER AN EXECUTED SERVICE
ORDER FOR SERVICES (THE "EFFECTIVE
DATE").
This Agreement constitutes a legally binding
agreement between the individual or entity identified
on the Service Order that is not the Reseller (as
defined in Section 1.1) (also referred to as "You" or
"Customer") and SecureWorks, Inc., a Georgia
corporation ("SecureWorks"). By signing, You
agree to be bound by this Agreement. BY SIGNING,
YOU INDICATE THAT YOU HAVE READ,
UNDERSTAND AND ACCEPT ALL OF THE
TERMS AND CONDITIONS OF THIS
AGREEMENT. PLEASE RETAIN A COPY OF
THIS AGREEMENT FOR YOUR RECORDS.
THIS AGREEMENT SUPERSEDES ANY
CONFLICTING TERMS AND ANY
CONFLICTING OR ADDITIONAL TERMS
SHALL BE NULL AND VOID AND OF NO
FORCE AND EFFECT.
1. Services; Equipment.
1.1 Managed Security
Services. During the term of this Agreement and
subject to the terms and conditions herein,
SecureWorks agrees to provide managed security
services ("MSS Services") purchased by Customer
through the reseller of SecureWorks Products
identified on the Service Order ("Reseller") in
accordance with the terms of this Section 1.1. The
MSS Services shall be specified in one or more
service order(s), purchase order or other similar
ordering document or method ("Service Order(s)")
executed by Customer and Reseller. A detailed
description of the MSS Services purchased is
provided in the service description and service level
agreement ("SLA") for such MSS Services attached
to each Service Order and incorporated therein by
reference.
1.2 Equipment SecureWorks
will provide certain equipment as necessary for
Customer to receive the MSS Services
("Equipment"). Upon the earlier of the termination
or expiration of this Agreement and/or the applicable
Service Order, Customer will return all Equipment to
SecureWorks and shall erase, destroy and cease use
of all Software (as defined in Section 2.1) located on
any Customer equipment. If Customer does not
return Equipment, Customer will be responsible for
the then -current replacement costs of such
Equipment.
2. MSS Services Software; License; Restrictions.
2.1 License to Software,
Documentation and Products. SecureWorks will
provide Customer with: (i) user IDs, tokens, and
passwords, (ii) access and use of the software (in
object code format only) (the "Software"), (iii)
digital signatures, and (iv) access and use of the
SecureWorks customer online portal (details and
login details of which shall be provided by
SecureWorks to the Customer) (the "Portal"), in
each case as necessary for Customer to receive the
MSS Services. SecureWorks will also provide
Customer with the applicable written directions
and/or policies relating to the MSS Services, which
may be in paper or electronic format (the
"Documentation", and collectively with the Portal,
MSS Services, Equipment and Software, the
"Products"), or a combination thereof, as necessary
for Customer to receive the MSS Services and access
the Portal. Subject to the terms and conditions of this
Agreement (including, without limitation, the
restrictions set forth in Section 2.2 below),
SecureWorks grants to Customer a limited, non-
transferable, non-sublicensable, royalty -free and non-
exclusive license to access and use, and for
Customer's Affiliate(s) to access and use, during the
term of the MSS Services only, the Products
delivered to Customer.
2.2 Restrictions. Customer (i)
will use the Products for its internal security purposes
only, and (ii) will not, for itself, any Affiliate of
Customer or any third party: (a) sell, rent, license,
assign, distribute, or transfer any of the Products; (b)
decipher, decompile, disassemble, reconstruct,
translate, reverse engineer, or discover any source
code of the Software; (c) copy any Software or
Documentation, except that Customer may make a
reasonable number of copies of the Documentation
for its internal use (provided Customer reproduces on
such copies all proprietary notices of SecureWorks or
its suppliers); or (d) remove from any Software,
Documentation or Equipment any language or
designation indicating the confidential nature thereof
or the proprietary rights of SecureWorks or its
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suppliers. In addition, Customer will not, and will
not permit unaffiliated third parties to, (I) use the
Products on a time-sharing, outsourcing, service
bureau, hosting, application service provider or
managed service provider basis; (II) alter any aspect
of any Software or Equipment; or (III) assign,
transfer, license, distribute, or otherwise provide
access to any of the Products to any unaffiliated third
party or otherwise use any Product with or for the
benefit of any unaffiliated third party.
2.3 Affiliates. As used
herein, the term "Affiliate" with respect to a party
means any entity that, directly or indirectly, through
one or more intermediaries, controls, is controlled by
or is under common control with such party.
"Customer" shall include Customer's Affiliate(s) if:
(i) such Customer Affiliate(s) are approved by
SecureWorks to purchase MSS Services under this
Agreement by such Affiliate(s) executing a Service
Order for such MSS Services directly with
SecureWorks ("Signing Customer Affiliate(s)") or
by Customer executing a Service Order for such MSS
Services on such Affiliate(s)' behalf, (ii) such
Customer Affiliate(s) are receiving the benefit of the
MSS Services through Customer's purchase of the
MSS Services, or (iii) such Customer Affiliate(s)'
data is included, accessed or received by
SecureWorks in connection with the performance of
the MSS Services for Customer. With respect to
such Customer Affiliate(s), Customer hereby
represents and warrants that: (A) Customer has
obtained the necessary consent from each Customer
Affiliate for SecureWorks to access such Customer
Affiliate's networks and data in connection with
providing the MSS Services, and (B) each Customer
Affiliate agrees to, and is hereby legally bound by,
this Agreement as if it were a party hereto. The
parties acknowledge and agree that except for any
Signing Customer Affiliate(s), Customer Affiliate(s)
are not intended to be third party beneficiaries to this
Agreement and shall have no direct claim against
SecureWorks hereunder. Except for Signing
Customer Affiliate(s), Customer shall be fully liable
for any breach of the terms of this Agreement by its
Affiliate(s) receiving or having access to the MSS
Services hereunder.
In addition, in the event that a Customer Affiliate
with a location outside of the United States is
purchasing MSS Services under this Agreement
("Customer International Affiliate"), (i) such
Customer International Affiliate shall enter into a
Service Order directly with the SecureWorks local
Affiliate ("SecureWorks Local Affiliate") for such
MSS Services, and (ii) Customer shall execute a local
country addendum in the form required by
SecureWorks specifying any local country required
terms with respect to Customer's International
Affiliate. For the purposes of either party's
Affiliate(s) performing, receiving or purchasing MSS
Services hereunder, references to SecureWorks and
Customer herein shall be deemed references to such
party's respective Affiliate(s).
3. Customer Responsibilities.
3.1 Customer will provide
SecureWorks with the cooperation, access and
detailed information reasonably necessary for
SecureWorks to implement and deliver the MSS
Services, including (i) test time on Customer's
computer systems and networks sufficient for
SecureWorks to provide the MSS Services and (ii)
one employee who has substantial computer system
and network and project management experience
reasonably satisfactory to SecureWorks to act as
project manager and as a liaison between Customer
and SecureWorks. SecureWorks will be excused
from any failure to perform its obligations under this
Agreement to the extent such failure is caused by
Customer's delay or failure to perform its
responsibilities under this Agreement.
3.2 If and to the extent that
SecureWorks is providing managed or co -managed
MSS Services hereunder, the obligations of
SecureWorks to comply with the SLAB applicable to
the MSS Services are dependent on SecureWorks'
ability to connect directly to the Customer devices on
the Customer's network through an authenticated
server in SecureWorks' secure operations center. If
and to the extent that SecureWorks is required to
connect to Customer devices via Customer's VPN or
other indirect or nonstandard means, then to the
extent that SecureWorks is required to make adds,
moves, or changes to or otherwise access such
devices in connection with any incident response or
help desk request, SecureWorks (i) can make no
guarantees or give any assurances of compliance with
the SLAs with respect thereto and (ii) shall have no
responsibility or liability for any failure to perform or
delay in performing its obligations or meeting its
SLAs hereunder.
3.3 In providing the
vulnerability assessment service (if purchased by
Customer) (the "Vulnerability Assessment
Service"), SecureWorks will take all reasonable
precautions to minimize negative impact to
Customer's computer systems and network; however,
Customer acknowledges that performance of such
Vulnerability Assessment Service may temporarily
degrade operation of Customer's computer systems
and network. Customer hereby unconditionally and
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irrevocably releases and acquits SecureWorks and its
Affiliates from any and all claims, demands, actions,
proceedings, liabilities, obligations, losses, damages,
costs, and expenses in connection with any negative
impact or degradation to Customer's computer
systems or networks resulting from the Vulnerability
Assessment Service.
3.4 Customer acknowledges
that SecureWorks' performance and delivery of the
MSS Services are contingent upon: (A) Customer
providing safe and hazard -free access to its
personnel, facilities, equipment, hardware, network
and information, and (B) Customer's timely decision-
making, providing the requested information and
granting of approvals or permissions. Customer (i)
has obtained or shall promptly obtain and provide to
SecureWorks any required licenses, approvals or
consents necessary for SecureWorks' performance of
the MSS Services and (ii) shall perform such actions
and tasks, in each case, as may be reasonably
requested by SecureWorks to enable SecureWorks to
perform the MSS Services in accordance with this
Agreement (including, but not limited to, the
Customer responsibilities set forth in a Service
Order). SecureWorks will be excused from its failure
to perform its obligations under this Agreement to the
extent such failure is caused by Customer's delay in
performing or failure to perform its responsibilities
under this Agreement and/or the applicable Service
Order.
3.5 Customer is responsible
for providing timely, accurate and complete
information and reasonable assistance to
SecureWorks, and Customer acknowledges and
agrees that information developed by the MSS
Services or advice and recommendations of
SecureWorks in connection therewith may be
impacted by untimely, inaccurate or incomplete
information provided by Customer. Unless otherwise
agreed in writing, SecureWorks will not validate or
confirm any information or materials provided by
Customer.
3.6 Customer is responsible
for all management functions and decisions,
including establishing and maintaining Customer's
internal controls, evaluating and accepting the
adequacy of the MSS Services in addressing
Customer's needs and making decisions whether to
proceed with advice and recommendations of
SecureWorks.
3.7 If SecureWorks is
requested by Customer, or required by government
regulation, regulatory agency, subpoena, or other
legal process, to produce Customer Reports (as
defined in Section 5.3), documentation or
SecureWorks personnel for testimony or interview
with respect to the MSS Services, Customer will
reimburse SecureWorks' and its counsel's expenses
and professional time incurred in responding to such
a request.
4. Term and Termination
4.1 Term of Agreement. The
term of this Agreement shall commence on the
Effective Date and shall continue until all Service
Orders hereunder have expired or been terminated.
4.2 Term of Service
Orders s . The term for the applicable MSS
Services will be specified on each Service Order.
4.3 Effect of Termination.
Upon termination or expiration of this Agreement,
the license granted to Customer and its Affiliates
with respect to the Products will immediately
terminate.
5. Proprietary Rights.
5.1 Customer's Proprietary
Rights. Customer represents and warrants that it has
the necessary rights, power and authority to transmit
Customer Data (as defined below) to SecureWorks
under this Agreement, including with respect to all
federal, state, local and international laws, rules and
regulations (collectively, "Applicable Laws")
applicable to Customer Data. As between Customer
and SecureWorks, Customer will own all right, title
and interest in and to (i) (A) any data provided by
Customer and/or its Affiliate(s) to SecureWorks and
(B) Customer and/or its Affiliate(s)' data accessed or
used by SecureWorks or transmitted by Customer
and/or its Affiliate(s) to SecureWorks or
SecureWorks Equipment in connection with
SecureWorks' provision of the MSS Services,
including, but not limited to, Customer's and/or its
Affiliate(s)' data included in any written or printed
summaries, analyses or reports generated in
connection with the MSS Services (Customer and its
Affiliate(s)' data collectively, "Customer Data"), (ii)
all intellectual property, including patents,
copyrights, trademarks, trade secrets and other
proprietary rights and information (collectively,
"IP") of Customer that may be made available to
SecureWorks in the course of providing MSS
Services under this Agreement, and (iii) all
Confidential Information (as defined in Section 6) of
Customer or its Affiliates, including, but not limited
to, Customer Data, Customer Reports, and other
Customer files, documentation and related materials,
in each case under this clause (iii), obtained by
SecureWorks in connection with this Agreement.
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Customer grants to SecureWorks a limited, non-
exclusive license to use the Customer Data to
perform the Services. SecureWorks may use certain
information relating to identified or identifiable
individuals collected in connection with security
events to develop and enhance its products and
services during and after the term hereof. This
Agreement does not transfer or convey to
SecureWorks or any third party any right, title or
interest in or to the Customer Data or any associated
IP rights, but only a limited right of use as granted in
and revocable in accordance with this Agreement.
During the term of the MSS Services, Customer
grants to SecureWorks a limited, non-exclusive,
royalty -free license to use Customer Data to (i)
perform the MSS Services hereunder; and (ii)
perform research to enhance its MSS Services,
including: (1) monitoring the performance of the
MSS Services; and (2) optimizing the MSS Services
by improving performance, functionality and
usability; provided, however that SecureWorks'
obligations of confidentiality with respect to
Customer Data shall apply to SecureWorks' use of
Customer Data as set forth in this paragraph. This
Agreement does not transfer or convey to
SecureWorks or any third party any right, title or
interest in or to Customer Data or any associated IP
rights, but only a limited right of use as granted in
and revocable in accordance with this Agreement.
5.2 SecureWorks'
Proprietary Rights. As between Customer and
SecureWorks, SecureWorks will own all right, title
and interest in and to the Products and MSS Services.
This Agreement does not transfer or convey to
Customer, any of its Affiliates, or any third party, any
right, title or interest in or to the Products and MSS
Services or any associated IP rights, but only a
limited right of use as granted in and revocable in
accordance with this Agreement. SecureWorks will
retain ownership of all copies of the Documentation.
SecureWorks agrees to transfer to Customer, all right,
title and interest in and to any Equipment purchased
by Customer ("Customer Purchased Equipment"),
excluding any right, title or interest in and to the
Software and any other SecureWorks IP loaded onto
such Customer Purchased Equipment. In addition,
Customer agrees that SecureWorks is the owner of all
right, title and interest in all IP in any work,
including, but not limited to, all inventions, methods,
processes, and computer programs including any
source code or object code (and any enhancements
and modifications made to any of the foregoing),
contained within the MSS Services and/or Products,
developed by SecureWorks in connection with the
performance of the MSS Services hereunder and of
general applicability across SecureWorks' customer
base (collectively, the "Works"), and Customer
hereby assigns to SecureWorks all right, title and
interest in and to any IP that Customer may have in
and to such Works; provided, however, that such
Works shall not include Customer's Confidential
Information (as defined in Section 6), Customer Data,
or Customer Reports (as defined in Section 5.3).
Without limiting the foregoing, SecureWorks will
own all right, title and interest in and to all IP in any
advisory data, threat data, vulnerability data,
analyses, summaries, bulletins and information made
available to Customer in SecureWorks' provision of
its counter threat intelligence MSS Services (the "TI
Reports").
During the term of the MSS Services, SecureWorks
grants to Customer a limited, non -transferable, non-
sublicensable, royalty -free, non-exclusive license to
use such Works and TI Reports solely for Customer
to receive the MSS Services and for Customer's or its
Affiliate's internal security purposes only. Customer
acknowledges that any license to the Products, MSS
Services, Works and TI Reports immediately expires
upon the expiration or termination of any individual
Service Order and/or this Agreement.
At all times during the term of this Agreement and
thereafter, Customer covenants and agrees not to take
any action, either directly or indirectly, to: (i)
challenge, question, or attempt to invalidate any of
the ownership rights of SecureWorks described in
this Section 5.2; or (ii) assert any IP or other rights in
or to any of the Products, MSS Services, Works, orTI
Reports, , other than the limited licenses granted to
Customer under this Agreement.
5.3 Customer Reports.
Customer shall own all right, title and interest in and
to any written summaries, reports, analyses, and
findings or other information or documentation
prepared uniquely and exclusively for Customer in
connection with the MSS Services and as specified in
a Service Order (the "Customer Reports"). For
clarity, the Customer Reports do not include the TI
Reports, as set forth in Section 5.2 above. The
provision by Customer of any Customer Report, any
information therein or any other results or output of
the MSS Services to any unaffiliated third party shall
not entitle such unaffiliated third party to rely on the
Customer Report or the contents thereof in any
manner or for any purpose whatsoever, and
SecureWorks specifically disclaims all liability for
any damages whatsoever (whether foreseen or
unforeseen, direct, indirect, consequential, incidental,
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special, exemplary or punitive) to such unaffiliated
third party arising from or related to reliance by such
unaffiliated third party on any Customer Report or
any contents thereof.
6. Confidentiality.
In the performance of the MSS Services, Customer
and SecureWorks may have access to or be exposed
to proprietary or confidential information of the other
party, including, but not limited to software, product
plans, marketing and sales information, customer
lists, "know-how," and trade secrets, regardless of the
form or medium of such information, whether or not
such information constitutes a trade secret under
Applicable Law, and whether or not such information
is marked or identified as "proprietary",
"confidential" or similar designation at the time of
access or exposure (collectively, "Confidential
Information"). Each party may use and reproduce
the other party's Confidential Information in
connection with performing under this Agreement,
and not for any other purpose. Neither party may
disclose the other party's Confidential Information to
any third parties unless such disclosure is to
personnel of SecureWorks or Customer, including
employees, agents and subcontractors, on a "need -to -
know" basis in connection with its performance
obligations pursuant to this Agreement, so long as
such personnel have agreed to treat such Confidential
Information under terms at least as restrictive as
those herein. Each party agrees to take the necessary
precautions to maintain the confidentiality of the
other party's Confidential Information by using at
least the same degree of care as such party employs
with respect to its own Confidential Information of a
like -kind nature, but in no case less than a
commercially reasonable standard of care. The
foregoing restrictions shall not pertain to any
information which (A) was known by one party prior
to its receipt from the other or is or becomes public
knowledge without the fault of the recipient, (B) is
received by the recipient from a source other than a
party to this Agreement, (C) is independently
developed by a party without causing a breach of the
terms hereunder, or (D) a party is required to disclose
in response to an order by a court or governmental
agency, provided that advance notice of the
disclosure is provided to other party.
During the term of this Agreement and the MSS
Services, SecureWorks shall employ and maintain
reasonable and appropriate safeguards designed to:
(a) reasonably protect all Customer Data in
SecureWorks' possession from unauthorized use,
alteration, access or disclosure; (b) detect and prevent
against a Security Breach (as defined below); and (c)
help ensure that SecureWorks' employees and agents
are appropriately trained to maintain the
confidentiality and security of Customer Data in
SecureWorks' possession.
SecureWorks agrees to notify Customer reasonably
promptly upon becoming aware of a confirmed use or
disclosure of Customer Data or Customer
Confidential Information in SecureWorks' possession
or control in violation of this Agreement (a "Security
Breach").
This Section 6 shall survive for three (3) years
following any termination or expiration of this
Agreement; provided that with respect to any
Confidential Information remaining in the receiving
party's possession following any termination or
expiration of this Agreement, the obligations under
this Section 6 shall survive for as long as such
Confidential Information remains in such party's
possession.
7. Warranties; Limitation of Liability and
Consulting Services Disclaimer.
7.1 Warranties.
SECUREWORKS WARRANTS THAT: (I) ITS
PERSONNEL ARE ADEQUATELY TRAINED
AND COMPETENT TO PERFORM THE MSS
SERVICES AND (II) THE MSS SERVICES
SHALL BE PERFORMED IN A PROFESSIONAL
MANNER IN ACCORDANCE WITH THE
APPLICABLE SERVICE ORDER AND THIS
AGREEMENT. EXCEPT AS EXPRESSLY
STATED IN THIS SECTION 7.1, SECUREWORKS
MAKES NO EXPRESS OR IMPLIED
WARRANTIES WITH RESPECT TO ANY OF
THE PRODUCTS, CUSTOMER REPORTS OR
MSS SERVICES, INCLUDING BUT NOT
LIMITED TO, ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, PERFORMANCE,
SUITABILITY OR NON -INFRINGEMENT, OR
ANY WARRANTY RELATING TO THIRD -
PARTY PURCHASES. Customer understands that
SecureWorks' services do not constitute any
guarantee or assurance that security of Customer's
systems, networks and assets cannot be breached or
are not at risk.
7.2 Limitation of Liability
7.2.1 SECUREWORKS WILL NOT BE
LIABLE FOR ANY INCIDENTAL, INDIRECT,
PUNITIVE, SPECIAL, OR CONSEQUENTIAL
DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT,
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INCLUDING, WITHOUT LIMITATION, (i)
DAMAGES FOR LOST OPPORTUNITIES,
REVENUE, INCOME, PROFITS, OR SAVINGS,
AND (ii) DAMAGES FOR LOST OR
CORRUPTED DATA OR SOFTWARE, LOSS OF
USE OF SYSTEMS OR NETWORKS, OR THE
RECOVERY THEREOF, OR BUSINESS
INTERRUPTION OR DOWNTIME, IN EACH
CASE, EVEN IF SECUREWORKS HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
7.2.2 SECUREWORKS' AGGREGATE
LIABILITY (WHETHER IN CONTRACT, TORT
OR OTHERWISE) FOR ALL CLAIMS OF
LIABILITY ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT
SHALL NOT EXCEED THE AMOUNTS PAID BY
CUSTOMER FOR THE SPECIFIC MSS
SERVICE(S) GIVING RISE TO SUCH CLAIM
DURING THE PRIOR TWELVE (12) MONTH
PERIOD.
7.2.3 THE FOREGOING
LIMITATIONS, EXCLUSIONS AND
DISCLAIMERS SHALL APPLY, REGARDLESS
OF WHETHER THE CLAIM FOR SUCH
DAMAGES IS BASED IN CONTRACT,
WARRANTY, STRICT LIABILITY,
NEGLIGENCE, AND TORT OR OTHERWISE.
INSOFAR AS APPLICABLE LAW PROHIBITS
ANY LIMITATION, EXCLUSION OR
DISCLAIMER HEREIN, THE PARTIES AGREE
THAT SUCH LIMITATION, EXCLUSION OR
DISCLAIMER WILL BE AUTOMATICALLY
MODIFIED, BUT ONLY TO THE EXTENT SO AS
TO MAKE THE LIMITATION, EXCLUSION OR
DISCLAIMER PERMITTED TO THE FULLEST
EXTENT POSSIBLE UNDER SUCH LAW. THE
PARTIES AGREE THAT THE LIMITATIONS ON
LIABILITIES SET FORTH HEREIN ARE
AGREED ALLOCATIONS OF RISK
CONSTITUTING IN PART THE
CONSIDERATION FOR SECUREWORKS'
PROVISION OF MSS SERVICES AND/OR
PRODUCTS TO CUSTOMER, AND SUCH
LIMITATIONS WILL APPLY
NOTWITHSTANDING THE FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY AND EVEN IF A PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH
LIABILITIES.
8. Indemnification.
8.1 By Customer. To the
extent allowed by law Customer shall defend,
indemnify and hold harmless SecureWorks, its
Affiliates and subcontractors, and the directors,
officers, employees, contractors and agents of each of
the foregoing, from and against any and all claims,
demands, actions, proceedings, liabilities,
obligations, losses, damages, costs and expenses
(including, without limitation, reasonable attorney's
fees) (collectively, "Damages") resulting from or in
connection with any third -party claim, demand,
action, suit or proceeding: (i) alleging that the
Customer Data infringes, misappropriates, dilutes, or
violates the IP of any third -party or was improperly
provided to SecureWorks in violation of individual's
rights, Customer's privacy policies or Applicable
Laws; (ii) asserting that any action undertaken by
SecureWorks in connection with SecureWorks'
performance under this Agreement violates law or the
rights of a third party, including without limitation
claims or allegations related to the decryption,
analysis of, collection or transfer of data to
SecureWorks; (iii) arising or resulting from a breach
of any representation, warranty, covenant or
agreement made by Customer under this Agreement
or a Service Order; (iii) by Customer Affiliates (other
than Signing Customer Affiliate(s)) arising from or
relating to the Services; (iii) for personal injuries,
including death, or tangible property damage
resulting or arising from Customer's gross negligence
or willful misconduct; or (vi) relating to Customer's
violation or alleged violation of Applicable Laws,
including, without limitation, U.S. customs and
export control laws, rules, and regulations; or (vii)
arising from a third party's reliance on a Customer
Report, any information therein or any other results
or output of the Services.
8.2 By SecureWorks.
SecureWorks shall defend, indemnify, and hold
harmless Customer, its Affiliates, and the directors,
officers, employees, contractors and agents of each of
the foregoing, from any and all Damages resulting
from or in connection with any third -party claim,
demand, action, suit or proceeding alleging that the
Products as provided by SecureWorks infringe any
third -party IP rights enforceable in the country or
countries in which the Products are provided or
delivered by SecureWorks to Customer; provided,
however, that the foregoing indemnification
obligation of SecureWorks shall not apply to the
extent that such third -party claim, demand, action,
suit or proceeding arises from or relates to (i) any
services, equipment, software or documentation not
provided by SecureWorks, or (ii) modifications to the
Products made by or at the direction of Customer.
9. Export. Each party agrees to comply with all
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Applicable Laws in the course of performance of its
obligations under this Agreement. Customer
acknowledges that the Products provided under this
Agreement, which may include technology,
authentication and encryption, are subject to the
customs and export control laws, rules, and
regulations of the United States ("U.S."); may be
rendered or performed either in the U.S., in countries
outside the U.S., or outside of the borders of the
country in which Customer or its systems are located;
and may also be subject to the customs and export
laws and regulations of the country in which the
Products are rendered or received. Each party agrees
to abide by those laws and regulations applicable to
such party in the course of performance of its
obligations under this Agreement. Customer also
may be subject to import or re-export restrictions in
the event Customer transfers the Products from the
country of delivery and Customer is responsible for
complying with applicable restrictions.
SecureWorks' acceptance of any order for Products is
contingent upon the issuance of any applicable export
license required by the U.S. Government or any other
applicable national government. SecureWorks will
not be liable for delays or failure to deliver Products
resulting from Customer's failure to obtain such
license or to provide such certification.
10. OFAC Warranty. Customer warrants that
neither it, nor any of its Affiliates or such party's
agents are on any list maintained by the United States
Treasury Department's Office of Foreign Assets
Control of persons, entities, or prohibited or restricted
jurisdictions. Customer agrees that it will promptly
notify SecureWorks in writing if it becomes aware of
any changes to this warranty or if to Customer's
knowledge any change is threatened. In such event,
SecureWorks shall have the ability to immediately
terminate this Agreement without affording Customer
an opportunity to cure.
11. INTENTIONALLY LEFT BLANK
12. Additional Terms.
12.1 Independent Contractor
Relationship; Assignment; Subcontracting. The
parties are independent contractors. Neither party
will have any rights, power or authority to act or
create an obligation, express or implied, on behalf of
another party except as specified in this Agreement.
Neither party will use the other party's name (except
internal use only), trademark, logos, or trade name
without the prior written consent of the other party.
SecureWorks has the right to assign, subcontract or
delegate in whole or in part this Agreement, or any
rights, duties, obligations or liabilities under this
Agreement, by operation of law or otherwise,
provided that SecureWorks shall remain responsible
for the performance of the MSS Services under this
Agreement. Otherwise, neither party may assign this
Agreement without the permission of the other party,
which such permission shall not be unreasonably
withheld or delayed.
12.2 Entire Agreement;
Severability; Section Headings. This Agreement
and the Service Orders are the entire agreement
between SecureWorks and Customer with respect to
its subject matter and supersede all prior oral and
written understandings, agreements, communications,
and terms and conditions between the parties,
including without limitation any terms contained
within a purchase order issued by Customer in
connection with the MSS Services, including, but not
limited to, any security or privacy agreements
executed by the parties. If any provision of this
Agreement is void or unenforceable, the remainder of
this Agreement will remain in full force and effect.
Section headings are for reference only and shall not
affect the meaning or interpretation of this
Agreement.
12.3 Force Maieure.
SecureWorks shall not be liable to Customer for any
failure to perform any of its obligations under this
Agreement during any period in which such
performance is delayed by circumstances beyond its
reasonable control, including, but not limited to, fire,
flood, war, embargo, strike, riot or the intervention of
any governmental authority.
12.4 Governing Law, Forum
and Language.
12.4.1 THE PARTIES AGREE THAT
THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH
U.S. FEDERAL LAW AND THE INTERNAL
LAWS OF THE STATE OF COLORADO, U.S.,
WITHOUT REGARD TO ITS CONFLICTS OR
CHOICE OF LAW RULES OR PRINCIPLES. THE
PARTIES EXPRESSLY AGREE THAT THIS
AGREEMENT SHALL NOT BE GOVERENED BY
OR CONSTRUED IN ACCORDANCE WITH THE
U.N. CONVENTION ON CONTRACTS FOR THE
INTERNATIONAL SALE OF GOODS.
12.4.2 ANY CASE, CONTROVERSY
OR OTHER LEGAL PROCEEDING ARISING
BEWEEN THE PARTIES WITH RESPECT TO
THIS AGREEMENT SHALL ONLY BE
INSTITUTED IN THE COURTS OF THE STATE
OF COLORADO, U.S., OR, IF JURISDICTION
CAN BE ESTABLISHED, IN THE U.S. DISTRICT
COURT FOR THE DISTRICT OF COLORADO.
Classification: //Secureworks/Confidential - Limited External Distribution:
DocuSign Envelope ID: DED30508-7851-4552-8DB6-0615419D1FD4
EACH PARTY IRREVOCABLY SUBMITS TO
THE EXCLUSIVE JURISDICTION OF SUCH
COURTS IN ANY SUCH CASE, CONTROVERSY
OR OTHER LEGAL PROCEEDING, AND
WAIVES ANY OBJECTION TO THE LAYING OF
VENUE IN SUCH COURTS AND AGREES NOT
TO PLEAD THAT SUCH COURTS ARE AN
INCONVENIENT FORUM.
12.4.3 This Agreement will be interpreted
and construed in accordance with the English
language.
12.5 Survival. Sections 5. 1,
5.2, 6, 7.2, and 8-12 shall survive any expiration or
termination of this Agreement.
12.6 No Third Party
Beneficiaries. Unless expressly provided otherwise
herein, the parties do not intend, nor will any Section
hereof be interpreted, to create for any third party
beneficiary rights with respect to either of the parties.
SecureWorks, Inc.
Signature:ocusigned by:
F�(9�qBl
C 01'& (,6L1,St.
o -s o -s_
Name:
Victoria souse
Position:
Contract Manager
Date:
3/15/2019
Customer: Eagle County Government
Signature: lc
signed by:
5� vb�l
Name: 3eff shroll
Position:
County Manager
Date:
3/15/2019
Classification: //Secureworks/Confidential - Limited External Distribution:
DocuSign Envelope ID: DED30508-7851-4552-8DB6-0615419D1FD4
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Classification: //Secureworks/Confidential - Limited External Distribution:
