ProcessUnity, Inc. End User Agreement
PLEASE READ CAREFULLY: THIS END USER AGREEMENT APPLIES TO THE SERVICES OFFERED BY PROCESS UNITY, INC. (“PROCESSUNITY”), LOCATED AT 33 BRADFORD STREET, CONCORD, MA 01742, PURSUANT TO AN ORDER FORM (THE “ORDER FORM”) ENTERED INTO BY PROCESSUNITY AND THE CUSTOMER SPECIFIED ON THE ORDER FORM (THE “CUSTOMER”). THIS END USER AGREEMENT, ALONG WITH THE EXHIBITS AND POLICIES ATTACHED AND LINKED HERETO (COLLECTIVELY, THE “AGREEMENT”) EXCLUSIVELY GOVERN THE LEGAL RELATIONSHIP BETWEEN THE CUSTOMER AND PROCESSUNITY IN RELATION TO THE SOFTWARE, SUPPORT AND SERVICES OFFERING SET FORTH HEREIN (THE “SERVICES”). PROCESSUNITY MAY UPDATE THESE TERMS FROM TIME TO TIME (FOR WHICH PROCESSUNITY SHALL PROVIDE EMAIL OR OTHER NOTICE) AND THE CUSTOMER AGREES THAT ANY OF THE FOLLOWING ACTIONS BY CUSTOMER’S REPRESENTATIVES REPRESENT THE CUSTOMER’S AUTHORIZED CONSENT TO BE BOUND BY THIS AGREEMENT: (I) EXECUTING THE ORDER FORM WITH PROCESSUNITY, (II) RECEIVING, REGISTERING OR OTHERWISE USING THE SERVICES, OR (III) BY CLICKING ON THE “ACCEPT” BUTTON UPON REGISTRATION. IF THE CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE CUSTOMER MAY NOT USE THE SERVICES IN ANY MANNER. WITH RESPECT TO ANY USE OF “CYBERGRX” BRANDED OR HISTORICAL SOFTWARE OR SERVICES, THE TERMS OF THIS AGREEMENT SHALL APPLY EXCEPT AS MODIFIED IN EXHIBIT A WHICH CAN BE FOUND AT THE END OF THIS AGREEMENT.
1. Definitions.
“Affiliate” means any entity that directly or indirectly Controls, is controlled by, or is under common Control with such entity.
“Control” of an entity means direct or indirect ownership or control of more than 50% of the voting interests of such entity.
“Authorized Users” means User’s and its Affiliates’ employees and third party providers authorized to access the Service and/or to receive User Data through the Service.
“Competitor” means any entity that may be reasonably construed as offering competitive functionality or services to those offered by ProcessUnity.
“Documentation” means the user guide for the Service, as updated from time to time, accessible via the ProcessUnity Online Help Center.
“Intellectual Property Rights” means all industrial and intellectual property rights and all rights associated therewith, throughout the world, including (1) all patents and applications therefor and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations in part thereof, (2) all inventions (whether patentable or not) and all rights in invention disclosures, (3) improvements, trade secrets, proprietary information, know how, technology, technical data, proprietary processes and formulae, algorithms, specifications, customer lists and supplier lists, (4) all designs and any registrations and applications therefor, all trade names, logos, trade dress, trademarks and service marks, trademark and service mark registrations, trademark and service mark applications, and any and all goodwill associated with and symbolized by the foregoing items, (5) Internet domain name registrations, (6) all copyrights, copyright registrations and applications therefor (including copyrights in Software, and all other rights corresponding thereto, (7) all rights in databases and data collections, (8) all moral rights of authors and inventors, however denominated, and (9) any similar or equivalent rights to any of the foregoing.
“Laws” means all laws (including statutory law, common/case law, codes), regulations and governmental orders.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs.
“Parties” shall refer to User and ProcessUnity. “Party” shall refer to User or ProcessUnity, as context requires.
“Personal Data” means information relating to an identified or identifiable natural person. An identifiable natural person is a natural person who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Service” means ProcessUnity’s software-as-a-service applications as described in the Documentation and subscribed to under an Order Form.
“User Data” means the electronic data or information submitted by User or Authorized Users of the Service.
2. Use of the Service.
2.1 ProcessUnity’s Responsibilities. ProcessUnity’s Responsibilities. ProcessUnity shall: (i) make the Service available to Customer pursuant to the terms of this Agreement; and (ii) provide Customer maintenance, support and SLA in accordance with the terms of ProcessUnity’s Standard Support Policy located here. ProcessUnity shall not disclose Customer Data to anyone other than Authorized Users and shall not use Customer Data except: (i) to provide the Service; (ii) to prevent or address service or technical problems in accordance with this Agreement and the Documentation; or (iii) in accordance with Customer’s instructions.
2.2 User Responsibilities. User shall: (i) have sole responsibility for the accuracy and legality of all User Data; (ii) shall ensure that it has obtained all consents and permissions necessary to disclose any Personal Data within the User Data; and (iii) prevent unauthorized access to, or use of, the Service, and notify ProcessUnity promptly of any such unauthorized access or use. User shall not: (a) use the Service in violation of applicable Laws; (b) send or store infringing, obscene, threatening, or otherwise unlawful material, including material that violates privacy rights; (c) send or store Malicious Code in connection with the Service; (d) attempt to gain access to the Service in a manner not set forth in the Documentation; or (e) use the Service in connection with an effort to develop a competing service. User shall be liable for the acts and omissions of its Authorized Users hereunder. User shall be responsible for acquiring all equipment necessary to make connections to the World Wide Web, including a computer and Internet access.
2.3 Access to the Service. User shall have a non-exclusive, limited, non-transferable (except to Affiliates) right to access and use the Service during the Term solely by Authorized Users and solely for its internal business purposes and not for the benefit of any third parties.
2.4 Restrictions. User shall not (i) modify, copy or create any derivative works based on the Service or Documentation; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Service or Documentation available to any third party, other than to Authorized Users as permitted herein; (iii) reverse engineer or decompile any portion of the Service or Documentation, including but not limited to, any software utilized by ProcessUnity in the provision of the Service and Documentation, except to the extent required by law; (iv) access the Service or Documentation in order to build any commercially available product or service; or (v) copy any features, functions, integrations, interfaces or graphics of the Service or Documentation.
2.5 Professional Services. ProcessUnity may, on an as-needed basis, provide additional consulting, configuration or other professional services as may be set forth in an Order Form or Statement of Work. Any Order Form or Statement of Work for additional services must be executed by ProcessUnity and Customer and must include or reference a reasonably detailed description of the project or services to be performed.
3. Proprietary Rights; Aggregated Data.
3.1 Ownership; Reservation of Rights. ProcessUnity and its licensors own all right, title and interest in and to the Service, Documentation, and other ProcessUnity Intellectual Property Rights. Subject to the limited rights expressly granted hereunder, ProcessUnity reserves all rights, title and interest in and to the Service and Documentation, including all related Intellectual Property Rights. No rights are granted to User hereunder other than as expressly set forth herein. ProcessUnity shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Service any User feedback provided in connection with its use of the Service. User shall retain all right, title and interest in and to the User Data.
3.2 Use of Aggregated Data. ProcessUnity owns the aggregated and statistical data derived from the operation of the Service, including, without limitation, the number of records in the Service, the number and types of transactions, configurations, and reports processed in the Service and the performance results for the Service (the “Aggregated Data”). Nothing herein shall be construed as prohibiting ProcessUnity from utilizing the Aggregated Data for purposes of operating ProcessUnity’s business and enhancing ProcessUnity’s services, provided that ProcessUnity’s use of Aggregated Data will not reveal the identity, whether directly or indirectly, of any individual or specific data entered by any individual into the Service. In no event does the Aggregated Data include any Personal Data. To the extent that User provides ProcessUnity with Personal Data in conjunction with the Service, the terms of ProcessUnity’s Data Privacy and Data Security Statement, attached as Exhibit A, shall govern.
4. Confidentiality.
4.1 Confidential Information. “Confidential Information” is non-public or proprietary information regarding the business, products or services of ProcessUnity, whether oral, written or electronic, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Except as expressly permitted by this Agreement, for a period of seven (7) years from receipt of the applicable Confidential Information, User shall (i) protect such Confidential Information from unauthorized dissemination, using the same degree of care which User uses with respect to its own proprietary information, but in no event with less than reasonable care, (ii) not use the Confidential Information for any purpose not expressly permitted by this Agreement and (iii) limit the disclosure of such Confidential Information to the employees, consultants, or agents of User who have a need to know such Confidential Information for purposes of this Agreement, and who are, with respect to such Confidential Information, bound in writing by confidentiality terms no less restrictive than those contained herein. With respect to Confidential Information that is a “trade secret” under applicable Law, the use and disclosure limitations of this Section shall continue for as long as such information continues to constitute a trade secret. Nothing in this Agreement shall limit any rights and remedies the Parties have under applicable laws governing trade secrets and confidential information.
4.2 During the Term of this Agreement, ProcessUnity shall maintain a formal data privacy and data security program that is designed to: (i) ensure the security and integrity of Customer Data; (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data and Personal Data. Additional information about ProcessUnity’s data privacy and data security practices can be found here.
5. Warranties Disclaimers.
5.1 Disclaimer. THE SERVICE IS PROVIDED AS-IS AND PROCESSUNITY DISCLAIMS ALL CONDITIONS, REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AS TO ANY MATTER WHATSOEVER OR ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT OR ANY APPLICABLE ORDER FORM, PROCESSUNITY AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTY THAT ALL ERRORS HAVE BEEN OR CAN BE ELIMINATED FROM THE SERVICE OR ANY PROFESSIONAL SERVICES, THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR LATENCY, OR THAT THE SERVICE WILL OPERATE WITH ANY NETWORK, HARDWARE OR THIRD PARTY SOFTWARE. THE WARRANTY HEREIN IS LIMITED ONLY TO USER AND ITS AFFILIATES AND EXCLUDES ANY THIRD PARTY.
6. Indemnification.
6.1 Indemnification. User agrees to defend, indemnify and hold ProcessUnity and its officers, directors, employees, affiliates, agents, and business partners harmless from and against all third party claims, losses, damages and expenses, including reasonable attorney’s fees arising as a result of: (i) User’s use of the Service in violation of the terms of this Agreement, (ii) claims that the User Data infringes the rights of, or has caused harm to, a third party or violates any law, or (iii) User’s willful misconduct; provided, however, that ProcessUnity: (a) promptly gives written notice of any third party claim to User; (b) gives User sole control of the defense and settlement of the third party claim (provided that User may not settle any claim unless it unconditionally releases ProcessUnity of all liability); and (c) provides to User, at User’s cost, reasonable assistance in connection with the third party claim.
7. Limitation of Liability; Exclusion of Damages.
7.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL PROCESSUNITY’S (OR PROCESSUNITY’S THIRD PARTY LICENSORS’) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY USER IN CONSIDERATION FOR SERVICE DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD FROM WHICH THE CLAIM AROSE (OR, FOR A CLAIM ARISING BEFORE THE FIRST ANNIVERSARY OF THE EFFECTIVE DATE, THE AMOUNT PAID FOR THE FIRST TWELVE MONTH PERIOD).
7.2 Exclusions. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
8. Term & Termination.
8.1 Term of Agreement; Term of Access to the Service. The term of this Agreement commences on the Effective Date and continues for as long as User has the right to use the Service.
8.2 Termination. ProcessUnity may terminate this Agreement: (i) upon thirty (30) days prior written notice to User of a material breach by User if such breach remains uncured at the expiration of such notice period; or (ii) immediately in the event that User becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
8.3 Effect of Termination. Upon any termination of this Agreement, User shall, as of the date of such termination, immediately cease accessing and otherwise utilizing the applicable Service and ProcessUnity Confidential Information.
8.4 Access to User Data. Upon request by User made within thirty (30) days after any expiration or termination of this Agreement, ProcessUnity will make User Data available to User through the Service on a limited basis solely for purposes of User retrieving User Data for a period of up to thirty (30) day after such request is received by ProcessUnity. After such thirty (30) day period, ProcessUnity will have no obligation to maintain or provide any User Data and may thereafter, unless legally prohibited, delete all User Data.
8.5 Survival. Notwithstanding anything to the contrary in this Section, the provisions of Sections 1-5 and 8-11 shall survive termination of this Agreement.
9. General Provisions.
9.1 Entire Agreement. This Agreement contains the entire agreement and understanding of the Parties with respect to the subject matter hereof and shall supersede and merge all prior and contemporaneous communications and agreements with respect to the subject matter hereof. No addition to or modification of any provision of this Agreement shall be binding upon the Parties unless in a written agreement signed by the Parties. No quote, purchase order, invoice or similar document will modify the terms of this Agreement even if accepted by the receiving Party.
9.2 Assignment. Neither Party shall be entitled to assign or otherwise transfer rights or obligations under this Agreement, including use of the Service, whether in whole or in part, except with the prior written consent of the other Party, such consent not to be unreasonably withheld or delayed. Notwithstanding the foregoing, either Party may assign this Agreement in its entirety without consent of the other Party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by all of the terms of this Agreement and all past due fees are paid in full, except that User shall have no right to assign this Agreement to a Competitor of ProcessUnity. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
9.3 Force Majeure. Neither Party shall be liable for, or be considered to be in breach of or default on account of, any delay or failure to perform as a result of any cause or condition beyond such Party’s reasonable control (including, but not limited to, computer attacks or malicious acts, such as attacks on or through the Internet, or delays caused by an Internet service provider, telecommunications or hosting facility).
9.4 Notices. All notices and other communications under this Agreement shall be in writing and shall be effective when received or, if delivery is not accomplished by reason of or some fault of the addressee, when tendered, and may be transmitted by (i) personal delivery, (ii) express mail by registered or certified mail, (iii) by courier or delivery service, or (iv) by fax or email with a receipt confirmed in writing by the receiving Party, to ProcessUnity at ProcessUnity, Inc., 33 Bradford Street, Concord, MA 01742, attn: Legal, or email address [email protected] or to User at its corporate address, or to such other addresses as either Party may from time to time notify the other Party of in accordance with this Section.
9.5 Relationship between the Parties. In all matters relating to this Agreement, User and ProcessUnity shall act as independent parties and nothing in this Agreement shall be construed to create a partnership, joint venture, agency relationship or employment or franchise relationship between the Parties. Neither Party has the right, power or authority to bind the other or incur, assume or create any obligation on behalf of the other Party.
9.6 Choice of Law and Venue. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, without regard to any of its conflict of laws provisions. Any action or proceeding relating to this Agreement must be brought in a federal or state court in the Commonwealth of Massachusetts (provided, however, that nothing in this Agreement shall prevent a Party from seeking injunctive relief to enforce the terms of this Agreement in any venue or jurisdiction as determined in such Party’s sole discretion and convenience), and each Party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
9.7 Export Controls. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Service. Without limiting the generality of the foregoing, User shall not make the Service available to any person or entity that: (i) is located in a country that is subject to a U.S. government embargo; (ii) is listed on any U.S. government list of prohibited or restricted parties; or (iii) is engaged in activities directly or indirectly related to the proliferation of weapons of mass destruction.
9.8 Headings; Counterparts; “Includes” and “Including”. All captions, titles or section headings of this Agreement are for ease of reference only, shall not affect the interpretation or construction of any provisions of this Agreement and shall not be deemed part of this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which shall be deemed to be an original instrument. Wherever the word “including” or “include” shall appear in this Agreement, such term shall be construed to mean “including without limitation” or “include without limitation,” as the case may be.
9.9 Waiver. No waiver by either Party to this Agreement of any provision of this Agreement, and no failure by either Party to exercise any of such Party’s rights or remedies under this Agreement, shall be deemed to constitute a waiver of such provision, right, or remedy in the future, or of any other provision, right, or remedy hereunder, unless such waiver shall be set forth in a written instrument signed by the Party against whom such waiver is sought to be enforced.
9.10 Miscellaneous. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof. The provisions of this Agreement prevail over those of any other document, printed or electronic, in the event of a conflict. This Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. Notwithstanding any language to the contrary therein, no terms or conditions stated in a User purchase order or in any other User order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Except as otherwise specified in writing by User, ProcessUnity may use User’s name and logo in lists of customers, on marketing materials and on its website.
Exhibit A
TERMS FOR CYBERGRX SOFTWARE OR SERVICES:
For “CyberGRX” historical or branded software and/or services, the Agreement shall apply except as follows:
(a) The following is added as a recital: “ProcessUnity enables its customers to identify, assess, monitor, and manage the cyber security risks of engaging third party vendors, suppliers, and other service providers (collectively, “Third Parties”). The Services may comprise a series of data and analytics on a customer’s Third Parties, including access to cyber risk profiles of the Third Parties that a customer elects to manage using the Services (the “Profiles”). The Profiles include, without limitation, cyber risk related information with respect to inherent risk, residual risk, threat intelligence, breach monitoring, framework mapping, control gap analysis, predictive risk profiles, predictive assessments, risk assessment questionnaires completed by a Third Party (each an “Attested Assessment”), and Attested Assessments wherein responses are validated by an independent third party (each a “Validated Assessment”) of a customer’s third party ecosystem (collectively, “Profile Information”). The Profiles and Profile Information are provided to customers through ProcessUnity’s cloud-based software platform (the “Platform”).”
(b) All references to “Services” are hereby deleted in their entirety and replaced with “Services and/or Platform.”
(c) Section 2.3 is hereby deleted in its entirety and replaced with the following: “ProcessUnity shall make the purchased Services available to Customer during the Term in accordance with the Agreement and as further described in any applicable Order(s) for use by Customer solely for its internal business purposes. Except as permitted in the “Confidentiality” section herein, Customer may not disclose any Profile Information, data or analytics derived from the Profiles, attested assessment, or any content otherwise available on the Platform, to any other person or entity without ProcessUnity’s prior written consent.”
(d) The following is hereby added to Section 7.3: “Additional Acknowledgments and Disclaimers. CUSTOMER ACKNOWLEDGES THAT (I) ACCESS TO CERTAIN PORTIONS OF A THIRD PARTY PROFILE MAY BE SUBJECT TO (A) AUTHORIZATION BY THE SPECIFIC THIRD PARTY (WHICH AUTHORIZATIONS MAY BE REVOKED BY THE THIRD PARTY AT ANY TIME), AND (B) REVOCABLE LICENSES FROM OTHER SOFTWARE AND CONTENT PROVIDERS; (II) A THIRD PARTY PROFILE WITHOUT AN ATTESTED ASSESEMENT IS BASED ON PREDICTIVE MODELING, THE ACCURACY OF WHICH IS NOT GUARANTEED; AND (III) PROFILES, PROFILE INFORMATION, AND RELATED PLATFORM CONTENT (SPECIFICALLY THE PREDICTIVE ASSESSMENTS), WHILE BASED ON ACTUAL DATA INPUTS, REFLECT PROCESSUNITY’S SUBJECTIVE CONCLUSIONS AND OPINIONS BASED ON INFORMATION PROVIDED TO PROCESSUNITY BY VARIOUS CUSTOMERS AND THIRD PARTIES. CONSEQUENTLY, PROCESSUNITY MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE ACCURACY OF THE CONCLUSIONS AND OPINIONS CONTAINED IN PORTIONS OF THE PROFILES BASED ON PREDICTIVE RISK INTELLIGENCE OR PREDICTIVE ASSESSMENTS, AND NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE TRUTH, COMPLETENESS, OR TIMELINESS OF THE PROFILE INFORMATION, OR THAT EITHER WILL BE ERROR FREE. FURTHER, EXCEPT IN THE CASE OF PROCESSUNITY’S NEGLIGENT ACTS OR OMISSIONS IN PROVIDING THE SERVICES, CUSTOMER AGREES THAT PROCESSUNITY SHALL HAVE NO LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR (X) THE CONCLUSIONS AND OPINIONS CONTAINED IN THE PROFILES, (Y) ANY ACTS OR OMISSIONS BY CUSTOMER IN RESPONSE TO OR AS A RESULT OF ANY PROFILE ANALYTICS, OR (Z) ANY DAMAGES SUFFERED BY CUSTOMER ARISING FROM OR IN CONNECTION WITH ANY AGREEMENT OR RELATIONSHIP BETWEEN A THIRD PARTY AND CUSTOMER AS A RESULT OF ANY CONCLUSIONS OR OPINIONS DERIVED FROM THE SERVICES.”
(e) Notwithstanding anything to the contrary set forth in the Agreement, the Support and SLA terms are set forth here.