• Definitions.

• “Client Agreement” means a binding, written agreement between Customer and Customer Client for the provision of Services to Customer entered into in accordance with Section 3.2 hereof.
• “Customer Clients” means individuals or legal entities with whom Customer contracts to provide Services as part of and in connection with other services provided by Customer under a Client Agreement for end use and not for resale.
• “Documentation” means Symplified’s user manuals, handbooks, online materials, specifications or forms furnished by Symplified that describe the features, functionality or operation of the Symplified System.
• “Facilities” means the Customer facilities identified in an Order that are (a) Customer-owned or operated on behalf of Customer, and/or (b) owned by Customer Client or operated on behalf of such Customer Client, if permitted in an Order.
• “IDR” means identity router in the form of a hardware appliance, including any software installed thereon, or software installed on a virtual machine for use by Customer at its Facilities as part of the Symplified System.
• “On-Premise Software” means an IDR or other Symplified computer software identified on an Order that may be provided to Customer and installed on a server at the Facilities to be used only as part of the Symplified System in connection with the Services.
• “Order” means the initial Services order entered into between the parties and into which these Terms of Service are incorporated, and such additional Services orders as may be mutually agreed to and signed by both parties from time to time pursuant to these Terms of Service.  An “Order” may also refer to Service orders submitted by Customer and accepted by Symplified through the ordering process on Symplified’s website.
• “Services” means the on-demand identity management SaaS solution described in an Order delivered by Symplified to Customer using the Symplified System, as made available by Symplified pursuant to this Agreement through the access methods described in an Order.
• “Symplified System” means Symplified’s on-demand subscription services system used to deliver the Services to Customer in accordance with this Agreement, including the On-Premise Software.
• “Users” means (a) Customer’s employees, contractors and external users who are authorized by Customer to use the Services on behalf of Customer, and (b) employees, contractors and external users of a Customer Client who are authorized by Customer to use the Services under a Client Agreement. 

• Services.

• Scope of Agreement.

   

This Agreement governs Customer’s access to and use of the Symplified System on a subscription basis during the Term.  This Agreement shall govern all Services purchased by Customer from Symplified.  Future purchases for additional services shall be made by submission of additional Orders by Customer and acceptance of such Orders by Symplified which shall then be incorporated into this Agreement.  The additional services will be deemed added to the definition of Services.

• Provision of Services.

Subject to the terms and conditions of this Agreement, during the Term, Symplified will provide the Services to Customer and, if specified in an Order accepted by Symplified, to Customer Clients pursuant to this Agreement, including Exhibit B and the applicable Order.  Any Services that are provided to a Customer Client must be provided only in connection with other products or services provided by Customer, as identified in an Order, and not on a stand-alone basis.

• Rights and Restrictions.

• Rights and Licenses.

   

Subject to the terms and conditions of this Agreement, Symplified grants to Customer, during the Term, a non-exclusive, non-transferable, non-sublicensable right to (a) access and use the Symplified System, and any related Documentation, as made available to Customer by Symplified, and (b) install, access, use and operate the On-Premise Software at the Facilities, solely as part of the Symplified System for uses identified in an applicable Order and in accordance with the Documentation and the terms and conditions of this Agreement. No On-Premise Software may be provided to Customer Clients, unless approved by Symplified in writing.

• Client Agreements.

   

Before providing any Services to any Customer Client, Customer must enter into a Client Agreement with such Customer Client.  All Customer Agreements must (a) be substantially in a form previously approved by Symplified; (b) not provide an initial or renewal term length exceeding three (3) years without Symplified’s prior written approval, and (c) not include any support commitments with respect to the Services other than the terms of the Service Level Commitment and Support Service set forth in Exhibits A and B attached hereto. Customer shall be responsible for Customer Client’s compliance with the terms and conditions of this Agreement and any breach of this Agreement by a Customer Client shall be deemed to be a breach by Customer. 

• Limitations.

   

The Symplified System may only be accessed and used by the number of Users specified in the applicable Order.  Customer should also consult any and all notices accompanying On-Premise Software before installing or using such software.

• Restrictions.

Customer is responsible for all activities that occur under Customer’s or Customer Client’s User accounts.  Customer agrees not to: (a) reverse engineer, disassemble or decompile any On-Premise Software, (b) modify, copy or make derivative works based on the On-Premise Software or any part of the Symplified System, or (c) otherwise use the Services or the On-Premise Software in any manner that exceeds the scope of use permitted hereunder.  Customer will use the Services and the Symplified System in compliance with the Documentation.  Customer may not provide the IDR to a Customer Client.  

• Support.

As part of the Services, Symplified will provide Customer with the Service Level Commitment specified in Exhibit A and will provide support as described in and in accordance with Exhibit B.  Customer is solely responsible for providing front-line support to its Customer Clients and Customer shall be Symplified’s sole contact for the support services to be provided pursuant to Exhibit B.

• Hardware Appliances.

• Delivery and Acceptance.

   

Delivery of ordered hardware appliances, if any, will be made F.O.B. Symplified point of shipment.  Title to hardware appliances (including any software installed thereon) shall remain with Symplified but risk of loss and damage shall pass to Customer upon delivery to the Facilities.  Symplified shall use reasonable commercial efforts to meet the delivery schedule set forth in an Order, if any.

• Return of Hardware Appliances.

   

Upon termination of this Agreement, Customer shall cease use of the Symplified System and shall, at its expense, return to Symplified any hardware appliance provided by Symplified to Customer, in the same condition and working order as when delivered to Customer (reasonable wear and tear excepted).  Customer shall return such hardware appliance by shipping F.O.B. destination to the address specified by Symplified according to Symplified’s shipping preference and insured for full value.

• Fees; Payment; Taxes.

   

Customer shall pay Symplified the fees set forth in the applicable Order (“Fees”).  If the Symplified System (including any On-Premise Software) is used by more Users than Customer has paid for, Customer will promptly pay to Symplified any additional fees for all use by such Users.  Symplified shall invoice Customer for all Fees due and, unless otherwise specified in an Order, Customer shall pay the invoiced amount within thirty (30) days after receipt of each invoice.  In the event Symplified’s employees or agents are required to travel to any Customer facility in connection with the performance of Services, Customer will reimburse Symplified for all reasonable, pre-approved, travel and travel related expenses incurred in connection therewith within thirty (30) days after receipt of Symplified’s invoice.  Symplified reserves the right (in addition to any other rights or remedies Symplified may have) to suspend Customer’s access to the Services if any Fees owed to Symplified are more than thirty (30) days overdue until such amounts are paid in full.  Symplified may charge interest for all outstanding balances at a rate equal to the lesser of one and one half percent (1½%) per month or the maximum rate permitted by applicable law, from the due date until paid.  All Fees shall be paid in United States Dollars.  The Fees are exclusive of, and Customer shall pay, any and all taxes, other than taxes based solely on Symplified’s income, imposed or assessed by reason of this Agreement or its performance, including but not limited to sales or use taxes.

• Recordkeeping and Audit

  . 

Customer shall retain records with respect to each Customer Client including, without limitation, the Customer Client Agreements for, at a minimum, the period of time such Customer Client is entitled to use the Services.  Symplified will have the right, at its expense, on ten (10) business days’ advance notice and during Customer’s business hours, to examine Customer’s books and records to verify Customer’s compliance with the terms and conditions of this Agreement.

• Term and Termination.

• Term.

   

The term of this Agreement shall commence on the Effective Date.  The Services to be provided with respect to each Order shall continue for the period set forth in the applicable Order (the “Initial Term”) unless terminated earlier as provided in Section 8.2.  Each subsequent Order shall have its own Term unless the Order expressly states that it supersedes a previous Order. Upon expiration of the Initial Term of each independent Order, the term of such Order shall automatically renew for successive one (1) year periods (each, a “Renewal Term”) unless either party gives the other party at least thirty (30) days written notice prior to end of the Initial Term or the then-current Renewal Term of its intent not to renew. The Initial Term, together with any Renewal Terms, is collectively referred to as the “Term.”  This Agreement shall automatically expire upon the expiration or earlier termination of all outstanding Orders. Symplified reserves the right to increase the Fees applicable to any Renewal Term upon written notice to Customer. 

• Termination.

   

Either party may terminate the Agreement if the other party breaches any material provision of the Agreement and does not cure such breach within thirty (30) days after receiving written notice thereof.

• Effects of Termination.

   

Upon termination or expiration of this Agreement for any reason, (a) any amounts owed to Symplified under this Agreement will be immediately due and payable, (b) all rights granted to Customer in this Agreement will immediately cease to exist, (c) Customer and, if applicable, Customer Clients must promptly discontinue all use of the Symplified System, and (d) Recipient will return to Discloser or destroy all copies of Discloser’s Confidential Information in Recipient’s possession or control.  Sections 1, 3.4, 8.3, 8.4 9 through 14 together with any accrued payment obligations, will survive expiration or termination of the Agreement for any reason.

• Client Agreements.

   

In the event of any termination or expiration of this Agreement, all then existing Client Agreements will remain in effect through their respective originally contracted terms, and the applicable terms of this Agreement will continue to apply to those Client Agreements; provided that such Client Agreements may not be renewed after the expiration of their respective originally contracted terms.  Customer’s rights under this Section will not survive termination of this Agreement for Customer’s (or a Customer Client’s) uncured breach of Section 3, or in the event Customer has failed to pay the undisputed portion of the invoices for 30 days after receipt of a remainder notice from Symplified setting out the outstanding amounts from Customer.

• Ownership.

   

The Symplified System, including all copies, improvements, enhancements, modifications and derivative works thereof, and all worldwide intellectual property rights and other proprietary rights relating thereto or embodied therein, are the exclusive property of Symplified and its licensors and suppliers.  Symplified and its licensors and suppliers reserve all rights in and to the Symplified System not expressly granted to Customer in this Agreement, and no other licenses or rights are granted by implication, estoppel or otherwise. 

• Confidentiality.

• Protection of Confidential Information.

   

“ConfidentialInformation” means information that is disclosed by a party (“Discloser”) to the other party (“Recipient”), or which Recipient has access to in connection with this Agreement, that is identified by Discloser to be proprietary and confidential to Discloser or to a third party.  Information may be disclosed in written or other tangible form or by oral, visual or other means.  Confidential Information of Symplified includes, without limitation, all information concerning the Services and the Symplified System disclosed hereunder that is not within any of the exceptions set forth in Section 10.2 below.  Recipient will not use any Confidential Information of Discloser for any purpose not expressly permitted by the Agreement, and will disclose the Confidential Information of Discloser only to the employees or contractors of Recipient who have a need to know such information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder.  Recipient will protect Discloser’s Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.  Except as provided herein, Customer shall not allow any access to Symplified Confidential Information to any Customer Client or any other third party.  The parties agree that any actual or threatened breach of this Section 10 will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.

• Exceptions.

   

Recipient’s obligations under Section 10.1 with respect to any Confidential Information of Discloser will terminate if such information:  (a) was already known to Recipient at the time of disclosure by Discloser; (b) was disclosed to Recipient by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) was independently developed by Recipient without access to, or use of, Discloser’s Confidential Information.  In addition, Recipient will be allowed to disclose Confidential Information of Discloser to the extent that such disclosure is (i) approved in writing by Discloser, or (ii) required by law or by the order of a court or of a similar judicial or administrative body, provided that Recipient notifies Discloser of such required disclosure promptly and in writing and cooperates with Discloser, at Discloser’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.

• Disclaimer.

   

THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT (INCLUDING ANY ON-PREMISE SOFTWARE) ARE PROVIDED “AS IS” AND SYMPLIFIED, ON BEHALF OF ITSELF AND ITS SUPPLIERS, HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. SYMPLIFIED’S SOLE OBLIGATION WITH REGARD TO ANY ERROR IN THE SERVICES IS TO PROVIDE, AS APPLICABLE, THE REMEDY SET FORTH IN EXHIBIT A OR THE SUPPORT SERVICES DESCRIBED IN EXHIBIT B.

• Limitation of Liability.

   

IN NO EVENT WILL SYMPLIFIED BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THE SYMPLIFIED SYSTEM OR THIS AGREEMENT, EVEN IF SYMPLIFIED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SYMPLIFIED’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES AND SYMPLIFIED SYSTEM, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. 

• Indemnity.

• Indemnification by Symplified.

Symplified will defend at its own expense any claim or action brought by a third party against Customer to the extent the claim or action is based upon an allegation that the Services infringe any U.S. patents or any copyrights or misappropriate any trade secrets of a third party, and Symplified will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such action or those costs and damages agreed to in a monetary settlement of such action. Notwithstanding the foregoing, Symplified will have no obligation under this Section 13.1 or otherwise with respect to any infringement claim that is based upon (a) any use of the Services not in accordance with this Agreement; (b) any use of the Services in combination with products, equipment, software or data not supplied by Symplified; (c) any use of any release of the Services other than the most current release made available to Customer; or (d) any modification of the Services or the Symplified System by any person other than Symplified or its authorized agents or subcontractors.  THIS SECTION 13.1 STATES SYMPLIFIED’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY CLAIMS OF INFRINGEMENT.

• Indemnification by Customer. 

Customer will defend at its own expense any claim or action brought by a Customer Client against Symplified, to the extent the claim or action arises from or is related to Customer’s use of the Services and Customer’s provision of Services to a Customer Client or a breach of a Client Agreement, excluding any claim or action arising from a breach of the terms of this Agreement by Symplified, and Customer will indemnify and hold Symplified harmless from and against any losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising from or related to any such claim or action.

• Indemnified Party Obligations.

   

As a condition of the indemnifying party’s obligations under this Section 13, the indemnified party must (a) notify the indemnifying party promptly in writing of such action or claim; (b) give the indemnifying party sole control of the defense thereof and any related settlement negotiations; and (c) cooperate and, at the indemnifying party’s request and expense, assisting in such defense.  

• General.

• Third Party Software.

   

The Software may contain or include software code owned or provided by third-party licensors of Symplified, that is accompanied by or clearly indicated to be subject to the terms of a third party software license, which will apply to the such third party software independent of the terms of this Agreement.  Third Party Software developed under Open Source licensing may be provided by Symplified. Customer should consult the following address for information about such Third Party Software:  http://www.symplified.com/us/legal/software-notice-and-attribution.html.

• Compliance with Laws.

Each party agrees to comply with all laws, regulations, rules, ordinances and orders applicable to its rights and obligations under this Agreement.  Customer will strictly comply with all requirements of the U.S. export control laws and regulations with respect to the use of the Symplified System and the Services.

• Assignment.

   

Neither party may assign or transfer, by operation of law or otherwise, this Agreement or any of its rights under the Agreement (including the license rights granted to Customer) to any third party without the other party’s prior written consent; provided, however, that either party may assign this Agreement, without consent, to any successor to all or substantially all its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise.  Any attempted assignment or transfer in violation of the foregoing will be null and void.

• Force Majeure.

Except for any payment obligations, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder for any cause which is beyond the reasonable control of such party.

• U.S. Government End Users.

If Customer is a branch or agency of the United States Government, the following provision applies.  The Symplified System is comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and are provided to the Government (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212 or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3.

• Notices.

All notices, consents, and approvals under this Agreement must be delivered in writing by courier, by electronic mail, facsimile (fax), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth in this Agreement or on the applicable Order, and will be effective upon receipt or when delivery is refused.  Either party may change its address by giving notice of the new address to the other party.

• Governing Law and Venue.

This Agreement will be governed by and interpreted in accordance with the laws of the State of Colorado, without reference to its choice of laws rules.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.  Any action or proceeding arising from or relating to this Agreement shall be brought in a federal or state court in Denver, Colorado, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. 

• Attorney Fees.

   

If any legal action is brought by a party to enforce the Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

• Waivers.

   

All waivers must be in writing.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

• Severability.

   

If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

• Construction.

   

The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement.  As used in this Agreement, the word “including” means “including but not limited to.”

• Entire Agreement.

   

This Agreement (including all exhibits and attachments which are incorporated into this Agreement by reference) constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings and communication, whether written or oral.  This Agreement may be amended only by a written document signed by both parties.  The terms of any purchase order or similar document submitted by Customer to Symplified will have no effect.

Exhibit B

Support

• Services.

    As part of the Services, Symplified will provide Customer with support as described in and in accordance with this Exhibit B.  Symplified’s support obligation shall immediately cease with no further obligation in the event Customer disassembles or tampers with the IDR or Software for any reason or adds, modifies or installs any software on the IDR or hardware or software on the hardware appliance or software in the Software (without prior written approval from Symplified).  Any services performed by Symplified which are not specifically included in this Exhibit B will be chargeable at Symplified’s then-current service rates plus travel, telephone and other reasonable expenses in addition to payment by Customer of all other Fees.

• Response Times.

    Subject to Section 3.3, all help desk calls will, if necessary, be prioritized according to the severity, as determined by Symplified, as follows:
• Severity Level 1.
• For Premium Support – If the Services are not Available, the Symplified Support team will respond within 1 hour after receipt of notice from Customer.  Customer and Symplified will commit the necessary resources on a 24 hours a day, 7 days a week basis to resolve or obtain a work-around.
• For Regular Support – If the Services are not Available, the Symplified Support team will respond within 2 hours after receipt of notice from Customer.  Customer and Symplified will commit the necessary resources during Help Desk Support hours (as set forth in Section 3.1 below) to resolve or obtain a work-around.
• Severity Level 2.  Services are Available, but functionality is degraded or restricted causing some business impact to Customer’s operations.  The Symplified Support team will respond within 4 hours after receipt of notice from Customer.  Customer and Symplified will commit necessary resources during Help Desk Support hours (as set forth in Section 3.1 below) to resolve the Error or obtain a work-around.
• Severity Level 3.  All cases not classified as Severity Level 1 or 2. Symplified Support team will respond by next business day Customer and Symplified will commit necessary resources during Help Desk Support hours (as set forth in Section 3.1 below) to correct Error to restore Services to satisfactory levels or obtain a work-around.

• Help Desk Support.

• Help Desk.  Symplified will provide help desk support, via telephone, e-mail or facsimile, during Symplified’s regular business days (including all Mondays through Fridays except Symplified holidays (namely, U.S. federal holidays) between the hours of 9:00 a.m. MST to 5:00 p.m. MST to assist in identifying and diagnosing problems (such as error messages, bug fixes, installations).  Help desk support does not include the following services from Symplified:  training; consulting; setup assistance; diagnosis of problems originating from connected applications and user stores; assistance with custom portal code and associated server(s) provided by Customer; support of Customer network configuration; Customer end user computers, Customer network equipment, or any other Customer owned hardware.  Symplified will provide such other services at Symplified’s then-current service rates, and Symplified’s agreement to provide such other services shall not be unreasonably withheld.  Help desk hours, time zones and policies are subject to change at the sole discretion of Symplified.
• Contacts.  Customer may appoint up to two people as its authorized support contacts (“Support Contacts”).  Upon acknowledgement by Symplified, only such Support Contacts may contact Symplified for support.
• Assistance.  Customer will promptly advise Symplified of any Error in the Symplified System of which it becomes aware, and Customer will provide reasonable assistance and cooperation to allow Symplified to define and resolve such Error, including providing (i) a detailed Error description; (ii) reasonable efforts to reproduce the Error; (iii) access capability to the IDR (iv) acquisition and transfer of Symplified System and Software log files; (v) if applicable, assistance with installation of a new IDR; (vi) participating in tests for fixes; and (vii) reasonable access to Support Contacts.  “Error” means any reproducible error or defect in the IDR or the Software that causes the Symplified System not to operate substantially in accordance with the Documentation.
• Remote Diagnostics.  Customer will allow Symplified reasonable remote access, through Customer’s protected firewall environment to Customer’s network environment, to the Software and to the IDR in order to provide the necessary support pursuant to this Agreement and to verify Service usage status.

• Symplified System Support.

• Errors.  As part of support, Symplified will use reasonable commercial efforts to provide Error corrections in the Symplified System reported by Customer (“Error Corrections”).  Error Corrections will be incorporated into the Symplified System within a commercially reasonable time depending on the severity of the Error as determined by Symplified pursuant to Section 2 above.
• Updates and Upgrades.  As part of the Services, at the sole discretion of Symplified, Symplified will provide periodic updates to the Symplified System and Software that may incorporate (i) corrections of any substantial Errors, (ii) fixes of any minor bugs and (iii) enhancements to the Symplified System.