Sift Terms & Conditions

1. SERVICES AND SUPPORT

• 1.1 Sift-Hosted Deployment. This Section 1.1 and 1.2 shall apply if Customer has purchased a subscription for a Company-hosted deployment of the Sift Platform in the corresponding Master Service Agreement and Order Form. Subject to the terms of this Agreement, Company hereby grants Customer a non-exclusive, nontransferable, non-sublicensable right to access and use the Sift Platform during the Term. Company will use commercially reasonable efforts to provide Customer the Sift Platform in accordance with the Service Level Terms attached hereto as Exhibit A. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate. Customer is responsible for securing all access credentials provided to Customer for the Services.
• 1.2 GovCloud-Hosted Deployment. If Customer elects to use GovCloud or an equivalent restricted environment, Customer represents and warrants that (a) it is a U.S. Person as defined under 22 C.F.R. § 120.62 and (b) all individuals or entities accessing or interacting with GovCloud services are U.S. Persons as defined under 22 C.F.R. § 120.62. Customer is responsible for ensuring compliance with all relevant U.S. laws and regulations governing the use of GovCloud. To support compliance with these requirements, Company may, as required by applicable law or regulatory obligations, request reasonable documentation or attestations from Customer confirming adherence to this obligation. Any such request will be made in good faith and in a manner designed to minimize operational impact.
• 1.3 Private Cloud Deployment. This Section 1.3 shall apply if Customer has purchased a subscription for a deployed version the Sift Platform (the “Deployed Software”) to be used as a private-cloud deployment in the corresponding Order Form. Subject to the terms of this Agreement, Company hereby grants Customer non-exclusive, nontransferable, non-sublicensable license to (a) copy and install the Deployed Software on Customer’s cloud environment or servers (“Customer Cloud”); and (b) use such Deployed Software in accordance with this Agreement and the Documentation. Customer will be solely responsible for (i) ensuring that the Deployed Software is compatible with the Customer Cloud and (ii) maintaining the availability, integrity, and security of the Customer Cloud.
• 1.4 On-Premise Deployment.  This Section 1.4 shall apply if Customer has purchased a subscription for Deployed Software to be used as an on-premise deployment in the corresponding Order Form.  Subject to the terms of this Agreement, Company hereby grants Customer non-exclusive, nontransferable, non-sublicensable license to (a) copy and install the Deployed Software on Customer’s physical, on-premise environment or server (“On-Premise Deployment”); (b) the number of On-Premis Deployments is mutually agreed upon in the above Order Form; and (c) use such Deployed Software in accordance with this Agreement and the Documentation. Customer will be solely responsible for (i) ensuring that the Deployed Software is compatible with the On-Premise Deployment, and (ii) maintaining the availability, integrity, security, and compliance with any relevant government regulations of the infrastructure used to host and operate the Deployed Software.
• 1.5 Technical Support. Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit A.

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2. RESTRICTIONS AND RESPONSIBILITIES

• 2.1 Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services, including any application programming interfaces made available by Company (“APIs”) and the Deployed Software (collectively, “Software”); (b) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); (c) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (d) use or access the Services to develop a product or service that is competitive with Company’s products or services, or engage in competitive analysis or benchmarking; (e) submit or transmit to the Services any viruses, Trojan horses, spyware, worms, time bombs, or any other malicious software; (f) attempt to probe, scan or test the vulnerability of the Services, breach the security or authentication measures of the Services without proper authorization or willfully render any part of the Services unusable; (g) remove any proprietary notices or labels from the Services; (h) engage in activities that disrupt, degrade, or interfere with the availability, integrity, or performance of the Services (including exceeding any rate limits, usage restrictions or other similar abusive behavior); or (i) otherwise use the Services in violation of applicable law or outside the scope permitted hereunder, in the applicable Order Form.
• 2.2 Customer acknowledges that the Services may be subject to export control and sanctions laws, including without limitation the U.S. Export Administration Regulations (“EAR”) administered by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”), International Traffic in Arms Regulations (“ITAR”) maintained by the U.S. Department of State and economic sanctions administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), and other similar laws and regulations (collectively, “Export Laws”). Customer agrees to comply with all Export Laws applicable to Customer’s use of the Services. Customer represents and warrants that it is not (i) located, organized, or resident in a country or territory that is subject to a U.S. trade embargo (currently, Cuba, Iran, North Korea, Syria, and the Crimea, so-called Donetsk People’s Republic, and so-called Luhansk People’s Republic regions of Ukraine); or (ii) identified on any applicable sanctions or restricted party list, including the Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, and Sectoral Sanctions Identifications List, administered by OFAC, and the Entity List, Denied Persons List, or Unverified List, administered by BIS; or (iii) more than 50% owned or controlled by, or acting on behalf of, any person or entity described in (i) or (ii). Customer agrees that it will not export, re-export, or otherwise transfer the Services, or use the Services to disclose, transfer, download, export or re-export, directly or indirectly, any Customer Data, to any country, entity, or other party that is ineligible to receive such items under the Export Laws, or otherwise take any action in connection with the Services that causes Company to be in violation of Export Laws. Customer acknowledges that the Services may not be available in all jurisdictions and that Customer is solely responsible for complying with the Export Laws in its use of the Services.  As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
• 2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect and all applicable laws and regulations.  Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
• 2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
• 2.5 Company’s reserves the right to monitor Customer’s use of the Services, and Company may suspend Customer’s access to the Services: (i) if required to do so by law; (ii) to prevent a security risk or other credible risk of harm or liability to Company, the Services, or any third party; or (iii) for repeated or material violations of the restrictions in Section 2.1 or 2.2.  Company will use reasonable efforts to notify Customer of any suspension and give Customer the opportunity to resolve the issue prior to suspension.

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3. CONFIDENTIALITY; PROPRIETARY RIGHTS

• 3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service.  Proprietary Information of Customer includes electronic data and information provided by Customer to Company to enable the provision of the Services, including any Regulated Data as defined in any Order Form or attached exhibit, if any (“Customer Data”). Unless expressly indicated in an Order Form or an attached exhibit thereto, Customer represents and warrants that it shall not include any Regulated Data in Customer Data or otherwise provide to Company any Regulated Data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
• 3.2 Customer shall own all right, title and interest in and to the Customer Data.  Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services or support, and (c) all intellectual property rights related to any of the foregoing.
• 3.3 Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, Customer Data and data derived therefrom), and  Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, including (without limitation) to train Company’s models and algorithms, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.  Further, Company shall have the right to use Customer’s name in a factual manner for marketing or promotional purposes on Company’s website and in other communication with existing or potential Company customers.  No rights or licenses are granted except as expressly set forth herein.

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4. PAYMENT OF FEES

• 4.1 Customer will pay Company the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”).  If Customer’s use of the Services  requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein.  Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email).  If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to Company’s customer support department.
• 4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after Customer’s receipt of such invoice.  Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.

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5. TERM AND TERMINATION

• 5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
• 5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice by Company in the case of Customer’s nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement.  Customer will pay in full for the Services for the remainder of the full Term notwithstanding any early termination hereof. Upon any termination and upon Customer’s request, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days at the Customer’s expense, but thereafter Company may, but is not obligated to, delete stored Customer Data.  All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations and proprietary rights’ terms, warranty disclaimers, and limitations of liability.

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6. WARRANTY AND DISCLAIMER

• Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

7. INDEMNITY

• 7.1 Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing.  The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement (clauses (i) through (vi), “Excluded Liabilities”).  If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.  THIS SECTION 7.1 STATES COMPANY’S SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY NATURE RELATED TO INFRINGEMENT, MISAPPROPRIATION, OR OTHER VIOLATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
• 7.2 Customer shall hold Customer harmless from liability to third parties resulting from (i) the Excluded Liabilities; or (ii) Customer’s breach of obligations, representations, and warranties relating to Regulated Data as described in the relevant Order Form or attached exhibit, provided Customer is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement.

8. LIMITATION OF LIABILITY

• NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY OR BREACH OF RESTRICTIONS AND RESPONSIBILITIES IN SECTION 2.1-2.2, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.

9. MISCELLANEOUS

• If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement.  Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void.  Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.

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EXHIBIT A

Service Level Terms

“Management Console” means the hosted portion of the Services accessible through an internet browser.

“Services Availability” is defined as the Customer’s ability to access the Management Console.

“Maintenance Window” means Sunday between 9AM US Pacific Time and 5PM US Pacific Time.

“Planned Downtime” means downtime during a Maintenance Window or planned downtime outside a Maintenance Window which shall not exceed 6 hours a month.

1. Services Availability: Company shall make commercially reasonable efforts to ensure that the service is available and operational at least 99.5% Services Availability over any calendar month, excluding Planned Downtime, downtime during the Maintenance Window, and the Exclusions listed in Section 2 of this Exhibit A. Customer shall notify Company of outages in the Services and such unavailability shall be tracked from the time Customer provides such notice. Any Services upgrades requested by Customer shall not be counted against the monthly Planned Downtime.
2. Exclusions: These Service Level Terms shall not apply to any downtime caused by factors outside of the Company’s reasonable control, including but not limited to: (a) acts or omissions of Customer or any third party, (b) any force majeure event, (c) any interruption or outage of Internet or telecommunications services, or (d) any scheduled maintenance or upgrades to the service.
3. Service Credits: If Company fails to meet the Services Availability during any calendar month, then Customer may request, in writing, within 30 days of Company’s failure to meet the Services Availability, to impose a Service Credit (as set forth in the table below) against the applicable month subscription fees for the applicable Services (excluding fees for any additional services or products), as follows:

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• Rate of Availability
  • Service Credit Percentage
• 99.49%-98.01%
  • 5% credit for current month

• 95.01%-98.0%
  • 10% credit for current month
• 95.0% or less
  • 20% credit for current month

4. Extreme Outage Credit: If Company experiences a continuous outage in a calendar month of the following duration windows (“Extreme Outage”), then Customer may request, in writing, within 30 days of such Extreme Outage an Extreme Outage Credit (as set forth in the table below) against the applicable month subscription fees for the applicable Services (excluding fees for any additional services or products).

• Extreme Outage Duration (per month)
  • Extreme Outage Credit Percentage
• 60 minutes to 24 hours (1440 minutes)
  • 25% credit for current month
• 24 hours to 72 hours
  • 100% credit for current month
• more than 72 hours
  • 100% credit for current month and 50% credit for the following month

For the avoidance of doubt, any unclaimed Extreme Outage Credit shall expire within 30 days of the Extreme Outage event.

For the avoidance of doubt, Service Credits, Extreme Outage Credits, and the sums thereof may not exceed 100% in any given month.

5. Customer Support and Response Times:  Customer support for the Services can be reached at support@siftstack.com and is available from 9:00 a.m. PST to 5:00 p.m. PST Monday-Friday, excluding federal holidays, for all support requests, and 24 hours, 7 days per week for Critical Priority requests. Company has structured a response plan to address such requests in an efficient and timely manner, addressing the most critical issues first.  Cases will be opened upon receipt of request or identification of issue, and incidents will be routed and addressed according to the following: When Customer reports a new incident to Company, Company and Customer, using reasonable judgment, will label it according to one of the following severity levels, and Company will process the incident according to its severity level and in the order that the incident was reported.