Terms & Conditions

1.1. SIEMBA shall make available to the Customer, the SIEMBA software identified in the Order, associated materials and other content for use by Customer for its internal purposes and subject to the scope limitations set forth in the Order (the “Service”) under the terms of the Master Software-as-a-Service (SaaS) Agreement.

1.2. Rights to the Service. Subject to the terms and conditions of this Agreement, SIEMBA hereby grants Customer a non-exclusive, non- transferable, worldwide right during the Term to access and use the Service solely for Customer’s own internal business purposes.

1.3. Updates. At no charge to the customer, SIEMBA shall install on its servers any software updates deemed reasonably necessary to address errors, bugs or other performance issues in the Service (collectively, “Updates”). Updates (if any) shall be subject to the same terms and conditions of the SaaS Agreement.

1.4. Restrictions and Conditions. Customer shall not, directly, indirectly or through its authorized users, employees and/or the services of independent contractors:

(a) attempt to sell, transfer, assign, rent, lend, lease, sublicense or otherwise provide third parties rights to the Service;

(b) "frame," "mirror,” copy or otherwise enable third parties to use the Service (or any component thereof) as a service bureau or other outsourced service;

(c) allow access to the Service by multiple individuals impersonating a single end user;

(d) use the Service in a manner that interferes with, degrades, or disrupts the integrity or performance of any SIEMBA technologies, services, systems or other offerings, including data transmission, storage and backup;

(e) use the Service for the purpose of developing a product or service that competes with the SIEMBA online products and services;

(f) circumvent or disable any security features or functionality associated with Service; or

(g) use the Service in any manner prohibited by law.

1.5. Intellectual Property Rights. Except as expressly provided in the SaaS Agreement or any predefined SOWs, neither Party grants any rights or licenses, express or implied, under any intellectual property rights to the other Party pursuant to this Agreement. The Parties own all its respective rights, title, and interests, including, without limitation, all intellectual property rights in and to all of its own work, ideas, inventions, discoveries, processes and improvements, computer programs, specifications, operating instructions, notes, and all other documentation created, conceived, or first reduced to practice by the Parties or its affiliates.

(a) No Assignment or Transfer. SIEMBA is not transferring or assigning to Customer or any other party any code, patent, copyright, trademark, or any other intellectual property rights, license, title, discovery, or improvement in the SIEMBA platform or any software pursuant to the Agreement, any predefined SOW, or in direct or indirect relation to performance of any service or provision of the deliverables, products, software, or otherwise. All platform related code, data, copyrights, registrations, reports, or any works of authorship developed during the term of the Agreement, or any predefined SOW, or any related documents or understandings, or in direct or indirect relation to performance of any Services or provision of any Deliverables, products or software, or otherwise will be the sole property of SIEMBA or its licensors.

(b) Third party and in-house components

1.6. Reservation of Rights. All rights not expressly granted to the Customer are reserved by SIEMBA, its suppliers and licensors.

1.7. Return of Hosted Data. If requested by the Customer within forty-five (45) days of the expiration or termination of this Agreement, SIEMBA shall make available to the Customer all Customer data stored within the Service at the time of expiration or termination. Forty-five (45) days after termination, SIEMBA shall have no further obligation to the Customer and may, at its option, permanently delete or destroy the Service and all information and materials contained therein.

1.8. Delivery of Service and Materials. The Service, and any updates or maintenance releases thereof, shall be made available only on a hosted basis, and will not be delivered in object code or physical media to the Customer. The Service, and any deliverables provided under this Agreement will be delivered only through an electronic transfer.

2.1. Fees and Payment Terms. In consideration of the rights granted herein, Customer shall pay SIEMBA the amounts specified in the Order located in Master SaaS Agreement, separately attached, and incorporated herein to the Agreement (“Fees”) set forth in the applicable Order. The customer agrees to pay a monthly subscription fee, which will be invoiced by SIEMBA according to terms in Master SaaS Agreement. The payments are due Net 15 via ACH. Fees for each Renewal Term shall thereafter be paid automatically by Direct Debit.                

(a) Fees are exclusive of any applicable sales, use, import or export taxes, duties, fees, value-added taxes, tariffs, or other amounts attributable to Customer’s execution of this Agreement or use of the Service (collectively, “Sales Taxes”). The customer shall be solely responsible for the payment of any Sales Taxes, included in the Invoices from SIEMBA. In the event SIEMBA is required to pay Sales Taxes on Customer’s behalf for any additional jurisdiction, Customer shall promptly reimburse SIEMBA for all amounts paid.

   
(b) All amounts shall be paid to SIEMBA promptly upon receipt of an undisputed invoice. An invoice shall be deemed undisputed if Customer fails to notify SIEMBA in writing of any disputed amounts within thirty (30) days of receiving such invoice.      

      
(c) Fees not paid when due shall be subject to a late fee equal to one- and one-half percent (1.5%) of the unpaid balance per month or the highest monthly rate permitted by applicable law, whichever is lower. SIEMBA further reserves (among other rights and remedies) the right to suspend access to the Service after sixty (60) days of nonpayment. Amounts payable to SIEMBA, including late fees, shall continue to accrue during any period of suspension and all amounts payable to SIEMBA, including late fees, must be paid as a condition precedent to reactivation. The reactivation precedent to all amounts payable to SIEMBA, including late fees, paid in full shall restore services in no longer than twelve (12) hours.

(d) Modification to the scope of this agreement shall be agreed upon by both parties. If the customer’s needs have changed due to an additional or removal of an application, SIEMBA will negotiate the change in service within thirty (30) days after notification. SIEMBA will notify the customer of cost change in service. The new cost will be integrated into the term length of the current contract term. The term lengths of the contract will not be modified with any additions to the scope of the agreement or service.  

(e) All prices and other payment terms are confidential information of SIEMBA and Customer agrees not to disclose such information to any third party throughout the Term and for three (3) years thereafter. 

(f) Except as otherwise specified in this Agreement, fees are based on services purchased and not actual usage, payment obligations are non- cancelable, fees paid are non-refundable, and the scope of the subscription cannot be decreased during the relevant subscription term.

2.2. Compliance with Laws. The SIEMBA software and Service are of U.S. origin. Customer shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which Customer uses the Service, including all end-user, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations. Customer will not upload any data or information to the Service for which Customer does not have full and unrestricted rights.

Notwithstanding anything to the contrary in this Agreement or any other agreement between the parties, Customer will not upload any data or information that is subject to government regulation, including without limitation, protected health information regulated under the Health Insurance Portability and Accountability Act of 1996 or sensitive financial information regulated under the Gramm- Leach-Bliley Act of 1999.

2.3  Breach Notification. The breach of obligations will be governed by the agreed SLAs. Both Siemba and the Customer must comply with their respective security obligations.

Additionally, each party retains the right to audit controls and configurations to ensure compliance, identify gaps, and address any violations effectively.

3.1. Term. Unless otherwise specified in the Order, the initial term of this Agreement will begin on the Effective Date and shall continue for 24 months (the “Initial Term”) and shall thereafter automatically renew unless either party provides written notice of its intention not to renew to the other party at least ninety (90) days prior to expiration of the current term. The Renewal Term shall be a minimum twenty four (24) month term automatically renewed every twelve (12) months, unless explicitly expressed by the customer.

3.2. Termination. Either party may terminate this Agreement if the other party materially breaches this agreement, and such breach has not been cured within thirty (30) days of providing notice thereof.

3.3. Effect of Termination. Upon expiration or termination for any reason, Customer shall discontinue all use of the Service, and return any and all software and documentation provided to Customer by SIEMBA. Upon expiration or termination for any reason, the annual financial obligation of the customer shall be paid within thirty (30) days of termination. No Fees will be due for any remaining subscription for future years beyond the current contract year.

4.1. Customer. Customer shall indemnify and hold SIEMBA, its suppliers and licensors harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with a claim which, if true, would constitute a breach of Customer’s obligations under Section 2 or 4 of this Agreement.

In the event SIEMBA is required to seek legal remedies to enforce collection of any amounts due under this Agreement, Customer agrees to reimburse for all additional costs associated with collection of that past due amount, including reimbursement of collection and attorney's fees.

Customer warrants and represents that it is the owner of any network, systems, IP addresses, and/or computers upon which SIEMBA INC performs the Services or that Customer is authorized to instruct SIEMBA INC to perform Services on such Systems pursuant as defined in Master SaaS Agreement. Customer shall indemnify and hold harmless SIEMBA INC for any claims by any third parties with respect to a breach of the foregoing warranty.

The customer further understands that any customizations (such as test scripting) provided by SIEMBA INC as part of a services engagement are provided for the current Customer environment and the current SIEMBA INC product version(s) only.

As such, any changes to the Customer environment or future SIEMBA INC product upgrades or updates may cause the customizations to become incompatible, and any further customizations required as a result of such changes is outside the scope of this agreement.

4.2. SIEMBA. SIEMBA shall indemnify and hold Customer harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out a third-party claim that the Service infringes or misappropriates any U.S. patents issued as of the Effective Date or any copyright or trade secret of any third party during the term of this Agreement.

SIEMBA shall have no indemnification obligation, and Customer shall indemnify SIEMBA pursuant to this Agreement, for claims of infringement arising from the combination of Service with any unique aspects of Customer’s business, for instance Customer’s content, products, services, hardware or business processes, or for any use of the Service or any SIEMBA software not expressly authorized herein.

4.3. Process. A party seeking indemnification hereunder shall promptly notify in writing the other party of any claim for which defense and indemnification is sought.

Each party agrees that it will not, without the other’s prior written consent, enter into any settlement or compromise of any claim that:

(a) results, or creates a likelihood of a result, that in any way diminishes or impairs any right or defense that would otherwise exist absent such settlement or compromise; or

(b) constitutes or includes an admission of liability, fault, negligence or wrongdoing on the part of the other party. Each indemnifying party has the sole right to control the defense of any claim for which it is providing indemnification hereunder with counsel mutually acceptable to the parties.

The indemnified party may, at its own expense, participate in the defense of any such claim.

Mutual Warranties. Each party represents and warrants to the other that it is duly authorized to execute this Agreement and perform the obligations set forth herein.

5.1. Disclaimer. The service and any SIEMBA training, instruction and support or other services content or materials provided in connection with this agreement (collectively, “services”) are provided strictly on an "as is" basis. SIEMBA does not warrant the completeness or accuracy of data provided, and the customer should independently verify such information. Content provided on or through the service is for general information only and is not intended as legal advice.

The customer acknowledges that it will work with its own legal counsel to determine its requirements under the applicable law. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, title, fitness for a particular purpose, or satisfactory results are hereby disclaimed to the maximum extent permitted by applicable law by SIEMBA, its suppliers and its licensors.

5.2. Uptime. SIEMBA acknowledges and agrees that service will be required to be up ninety-nine percent (99%) of the time while in service to the customer.

This does not include the required downtime for maintenance, updates or service to the SIEMBA platform. SIEMBA will give adequate notice of all scheduled down times to the customer as time allows. The communication of scheduled downtime will only be conducted through electronic means.

5.3. Limitation. Customer’s exclusive remedy and SIEMBA’s, its suppliers’ and licensors’ total aggregate liability relating to, arising out of, in connection with, or incidental to this agreement, whether for breach of contract, breach of warranty, indemnification or any other claim shall be limited to the actual direct damages incurred by customer, up to the aggregate amounts paid by customer and received by SIEMBA hereunder during the twelve months immediately preceding the applicable claim.

The existence of multiple claims or suits under or related to this agreement will not enlarge or extend this limitation of damages. Customer hereby releases SIEMBA, its suppliers and licensors from all obligations, liability, claims or demands in excess of this limitation. The provisions of this section do not waive or limit SIEMBA’s ability to obtain injunctive or other equitable relief for breach of this agreement.

5.4. Exclusion of certain damages and limitations of types of liability. In no event will SIEMBA be liable for any special, consequential, incidental, indirect or punitive damages, or lost profits or lost revenue arising out of or related to the subject matter of this agreement or the use of or inability to use the service. The foregoing exclusion and liability limitations apply even if such party has been advised of the possibility of such damage and even in the event of strict or product liability.

Either party may give notice to the other party by means of electronic mail to the primary contact designated on the Order or by written communication sent by first class mail or pre-paid post, either of which shall constitute written notice under this Agreement.

SIEMBA shall not be bound by any subsequent terms, conditions or other obligations included in any Customer purchase order, receipt, acceptance, confirmation or other correspondence from Customer unless expressly assented to in writing by SIEMBA and counter-signed by its authorized agent. The parties may supplement the terms of this Agreement at any time by signing a written addendum, which shall be deemed incorporated by this reference upon execution. The terms of any addendum shall control any conflicting terms in this Agreement. Unless expressly stated otherwise in an applicable addendum, all addenda shall terminate upon the expiration or termination of this Agreement.

8.1. Obligations. Each of the parties agrees:

(i) not to intentionally disclose any of the other party’s Confidential Information to any third parties except as mandated by law and except to those subcontractors hereunder who agree to be bound by confidentiality obligations no less stringent than those set forth in this Agreement;

(ii) not to use any of the other party’s Confidential Information for any purposes except carrying out such party’s rights and responsibilities under this Agreement; and

(iii) to keep the other party’s Confidential Information confidential using the same degree of care such party uses to protect its own confidential information; provided, however, that such party shall use at least reasonable care. These obligations shall survive termination of this Agreement.

8.2. Definition. For the purpose of this Agreement, “Confidential Information” means non-public information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, or to which the other party may have access, or any other information which a reasonable person would consider confidential and/or which is marked “confidential” or “proprietary” or some similar designation by the disclosing party or which is of a confidential nature even though not specifically so designated. Confidential Information shall not, however, include any information which the recipient can establish:

(i) was or has become generally known or available or in the public domain without direct or indirect fault, action, or omission of the recipient;

(ii) was known by the recipient prior to the time of disclosure, according to the recipient’s prior written documentation;

(iii) was received by the recipient from a source other than the disclosure, rightfully having possession of and the right to disclose such information; or (iv) was independently developed by the recipient, where such independent development has been documented by the recipient.

8.3. Anonymous Statistical Data. Notwithstanding anything else in this Agreement or otherwise, SIEMBA may monitor use of the Service and use data and information related to such use solely in an aggregated manner, including to compile statistical and performance information related to the provision and operation of the Service (“Aggregated Statistics”).

Aggregated Statistics may be used or distributed by SIEMBA for any purpose, provided that such data and information is anonymized and does not identify Customer.

This Agreement shall be governed by Georgia (United States) law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction to the contrary, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Georgia, United States.

No joint venture, partnership, employment, agency or exclusive relationship exists between the parties as a result of this Agreement or use of the Service.

The failure of SIEMBA to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision. All disclaimers, limitations, payment obligations and restrictions of warranty shall survive termination of this Agreement, as well as the provisions of this "General" section shall survive termination of this Agreement. If any part of this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Service will immediately terminate, except for those provisions noted above which will continue in full force and effect.

This Agreement, together with its following exhibits, comprises the entire agreement between Customer and SIEMBA and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

Customer grants the SIEMBA Customer Success team access to their instance for support during the term of the service. This includes creating user accounts that the Customer Success team can use to directly view or edit data within the Customer’s account. A customer may revoke access at any time during the term of service by sending a request to support@siemba.io