Report Date: 6/11/2021
CITY OF MERCED - Contract Summary & Routing Cover Sheet Contract Name: SMARSH INC. 2021-11-06 Contract No.: 301608 $25,970.02 Project No.:
Contract Obligation:
Vendor/Person Name: SMARSH, INC.
Information-Only Services PO #:
Contract Status:
Responsible Dept.: (0403) Information Technology
J.R. Wright x6959 Finance PO #: 140721
City Dept. Contact:
Effective: 3/30/2021 Expires: 2/28/2022 Retain Until: 3/1/2042 Key Dates:
Council Meeting:_7/6/2021] Recorded: Doc. No.:
Contract Categories: Information-Only Agreement
Key Elements: $Value
Key Element Name Eff./Exp. Date Short Text
$25,970.02
$ Original Value
APN:
Description/Comments
Text messaging and social media archiving.
'Information-Only" Agreement for 07/06/2021.
Routing Information 2nd Submittal FINANCE DEPARTMENT
Received by Clerk: 6/11/2021
When processed by your
Signed by Attorney: 6/10/2021 department, please return 301608 to the City Clerk's Office.
Finance Contract No.: 2nd Submittal
6/11/2021 -Thank you!
Submitted to Finance:
Forwarded to City Mgr.: 6115/21 Signed by Mayor:
Attested to by Clerk: 6/16 Date E-Mailed or Mailed: 61171211 Approved by Council: E-Mail Address: [email protected] Please sign and return to the Records Clerk, Ext. 6202, in the City Clerk's Office
asmarsh
Order Form (#Q062175)(Service Account Number: 40967)
Client Information
Company Name City of Merced, CA
Address 678 WEST 18TH STREET City Merced
State CA zip 95340
Primary Contact Name Jamie Wright Title IT Manager
(Authorized User) Phone 209-385-6959 Email [email protected] Technical Contact Name Jeff Bennyhoff Title Director of Information Technology Phone (209) 385-6868 Email [email protected]
Billing Contact Name Jamie Wright Title IT Manager
Phone 209-385-6959 Email [email protected]
Address 678 W 18th St City Merced
State CA Zip 95340-4708
Quote Date 01/12/2021 13:16:20 Quote Expiration 03/30/2021 Smarsh Sales Executive Emily Moyer Subscription Term 12 Months Activation Date Upon Grant of Access to Service Historical Import Billing In Arrears Setup Fee Billing Upon Contract Execution
Services and Fees
Rate per Minimum Minimum
Quantity Quantity
Pro Support - Basic - Annual $0.00 1 $0.00
Professional Archive - SMG 200 - Annual $680.64 1 $680.64 Professional Archive - SMG 200 Capture & Archive - Annual $82.81 231 $19129.38 Professional Archive - SMG 200 Premium Adj - Annual $28.00 220 $6160.00 Professional Archive-Extended Retention Fee (Per GB)-Annual $2.50 $0.00 Recurring Subtotal $25,970.02
One-Time Subtotal $ 0.00
If Client uses more Connections than it has licensed, Smarsh will bill for that use at $99.00 per connection plus $28.00 for each premium Notes Connection.
US: +1 (866) 762-7741 UK: +44 (0) 800-048-8612 www.smarsh.com Page 1 of2 a smarsh®
Terms & Conditions
On a date following the execution of this Order Form, Smarsh will provide Client with a license key for the Software or with login credentials to the applicable Service ("Activation Date"). Service Descriptions are available at www.smarsh.com/legal. The Services are subject to the Smarsh Service Agreement-General Terms available at www.smarsh.com/legal/ServiceAgreement. The Services purchased by Client are also subject to the Information Security Addendum available at https://www.smarsh.com/legal/InfoSec and the following Service Specific Terms:
the Professional Archive Service Specific Terms available at https://www.smarsh.com/legal/SSTProfessionalCloud; the following Premium Channels Service Specific Terms, as applicable: Mobile Channels Service Specific Terms available at https://www.smarsh.com/legal/SSTMobileChannels, and Twitter Service Specific Terms available at https://www.smarsh.com/legal/SSTTwitter .
The Smarsh Service Agreement - General Terms, the Information Security Addendum, the Service Specific Terms, and this Order Form are, collectively, the "Agreement." The Initial Term of the Services shall begin on the date this Order Form is executed and continue for he Subscription Term specified above, unless Client is adding the above Services to an existing Service account, in which case, thi bove Services will sync to and co-terminate with Client's existing subscription Term. The Services will be subject to renewals a specified in the Agreement.
For AT&T Mobility subscribers, your signature below represents your acceptance of the AT&T Wireless Terms and Conditions available at www.smarsh.com/legal/ATT as they apply to AT&T messages that are archived by Smarsh.
Order Form. If applicable, Smarsh will invoice Client for Onboarding Fees upon execution of this Order Form, unless a different billing schedule is specified in the associated SOW.
Client authorized signature
Name: Stephanie Dietz stephani his singe... • Date: 6/15/71 APPROVED AS TO FORM:
Thudia Ank - 6/10/21
PHAEDRA A. NORTON Date
City Attorney
US: +1 (866) 762-7741 UK: +44 (0) 800-048-8612 www.smarsh.com Page 2 of 2 ATTEST: of MERCE ALIFOR
CITY CLERK
CITY
3Y- 1889
Assistan Deputy City Clerk
Account Number: 672-0405-512-22-00
Amount: # 25, 970.02
VERIFIED
BY:
Finance Officer
[FINANCE ENTRY
Contract No: 301608
Vendor Number: 17974
P.O. Number: 140721
Funds Available: Funds avalable. ung uluz)
FL 66114121
a smarsh®
Smarsh Services Agreement-General Terms
WHEN YOU CLICK A BOX INDICATING ACCEPTANCE OF THIS AGREEMENT OR WHEN YOU EXECUTE AN
ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU, THE COMPANY ENTERING THIS AGREEMENT ('CLIENT"), AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ACCEPT THIS AGREEMENT ON BEHALF
OF YOUR COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT.
IF CLIENT PREVIOUSLY EXECUTED A SUBSCRIPTION FORM OR AN ORDER FORM (OR ENTERED INTO
ANY OTHER ORDER DOCUMENT IN ELECTRONIC OR HARD COPY FORM) FOR SERVICES OR SOFTWARE,
CLIENT AGREES THAT UPON ACCEPTING THE TERMS OF THIS AGREEMENT, WHETHER BY CLICK
THROUGH OR BY ORDER FORM REFERENCING THIS AGREEMENT, THIS AGREEMENT SUPERSEDES ANY
AND ALL PRIOR TERMS AND CONDITIONS ASSOCIATED WITH PREVIOUS ORDER FORM(S), AND SUCH
PREVIOUS ORDER FORM TERMS AND CONDITIONS ARE OF NO FORCE OR EFFECT, EXCEPT THAT THE "EFFECTIVE DATE" OF CLIENT'S AGREEMENT IS THE DATE ON WHICH CLIENT FIRST EXECUTED AN
ORDER FORM FOR SERVICES OR SOFTWARE, AND THE TERM OF CLIENT'S AGREEMENT FOR ALL
SERVICES OR SOFTWARE WILL CONTINUE TO RENEW ON THE ANNIVERSARY OF THAT EFFECTIVE DATE, BUT ACCORDING TO THE RENEWAL TERMS OF THIS AGREEMENT.
This Smarsh Services Agreement-General Terms (the "Agreement") constitutes a binding agreement between Smarsh Inc. ("Smarsh") and the Client identified in an order document that references this Agreement ("Order Form"), or the Client who accepts the terms of this Agreement via click-through acceptance. Client agrees that the terms of this Agreement will govern Client's use of the Services (as defined in Section 1).
This Agreement includes four parts: (1) the legal terms that are included in this "Smarsh Services Agreement - General Terms", (2) the terms that are specific to each service included in the "Service Specific Terms", (3) the description of what is included with each service in "Service Descriptions"; and (4) the Acceptable Use Policy (or "AUP").
1. Services. Smarsh will provide the Services specified in each Order Form ("Services"), according to the Agreement, the Service Specific Terms (including the applicable Service Level Agreement(s)), and the Service Descriptions, which describe the features and functionality of each Service. The Service Specific Terms and Service Descriptions are located at www.smarsh.com/legal. Smarsh grants Client a revocable, non-exclusive, non-transferable, limited license to access and use the Services purchased by Client during the Term (as defined in Section 12).
2. Support & User Groups. Smarsh Central, located at https://central.smarsh.com is where Client may seek support resources for the Services as well as engage with other end users in online forums regarding the Services.
2.1. Smarsh Central. Support FAQ's and other support resources are available on Smarsh Central located at https://central.smarsh.com. Client may initiate support requests by submitting support tickets on Smarsh Central. Changes to Smarsh's support policies will be made available on Smarsh Central.
2.2. Groups. Smarsh Central also provides online forums and related features to Users of the Services (as defined in Section 4.6) for discussion, feedback, and general Q&A purposes (such forums and related features are collectively called "Groups"). Smarsh grants Client and its Users a revocable, non-exclusive, non-transferable license to access and use Groups within Smarsh Central in connection with Client's use of the Services. Client or Users may post comments or content to Groups ("Groups Content"). Client hereby grants Smarsh a worldwide, exclusive, royalty-free, irrevocable license to access, use, reproduce, make derivatives of, and incorporate Groups Smarsh Services Agreement - General Terms | Page 1 of 9 asmarsh®
Content into Smarsh products or services for commercial use. Client acknowledges that Groups Content is not confidential and is subject to the Acceptable Use Policy available at www.smarsh.com/legal/AUP. Smarsh may delete Groups Content without prior notice. Client is responsible for all Groups Content posted by its Users. Smarsh disclaims all liability arising from Groups Content and use of Groups, including exposure to content that is potentially offensive, indecent, inaccurate, objectionable, or otherwise inappropriate. Smarsh may suspend or discontinue Groups at any time. Smarsh provide Groups without charge and Groups is not part of the Services.
3. Trial Services. If a trial period is indicated on an Order Form, Smarsh will provide Client with a temporary account to one or more Services ("Trial Account"). The Trial Account will be accessible beginning on the Activation Date (as defined in Section 7) and for the trial period set forth in the Order Form, or if no trial period is stated, the Trial Account period will be thirty (30) days from the Activation Date. DURING THE TRIAL PERIOD, THE TRIAL ACCOUNT AND ASSOCIATED SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND.
4. Client Obligations.
4.1. As used in this Agreement, the term "Client Data" means the data that the Services capture or archive from Client's systems or from Client's Third Party Services (as defined in Section 5), or Client's historical data provided by or on behalf of Client for ingestion by the Services. Client hereby grants Smarsh a limited, non-exclusive license to access, copy, transmit, download, display, and reproduce Client Data as necessary to provide, support, and improve the Services, as directed by Client, or as otherwise authorized hereunder. Data generated by the Services regarding Client's use of the Services is usage data and is not and does not contain Client Data.
4.2. It is Client's sole responsibility to monitor the Services and Client's systems and Third Party Services to ensure that Client Data is being captured. Client will notify Smarsh of any delivery failures or outages of its systems that could affect the transmission of Client Data. It is Client's responsibility to encrypt (i) data sent to the Services from Client's systems and (ii) historical data sent to Smarsh for ingestion. Smarsh will have no responsibility or liability for any data that Client transmits to Smarsh in an unencrypted format. Smarsh is not responsible or liable for any update, upgrade, patch, maintenance or other change to Client's systems or Third Party Services that affects the transmission of Client Data to the Service. It is Client's responsibility to ensure that the Services are configured to capture Client Data from all relevant end-user accounts or devices or web domains, as applicable.
4.3. Client is solely responsible for the content of Client Data. Client represents and warrants that (a) Client Data will not (i) infringe any third party right, including third party rights in patent, trademark, copyright, or trade secret, or (ii) constitute a breach of any other right of a third party, including any right that may exist under contract or tort theories; (b) Client will comply with all applicable local, state, national, or foreign laws, rules, regulations, or treaties in connection with Client's use of the Services, including those related to data privacy, data protection, communications, SPAM, or the transmission, recording, or storage of technical data, personal data, or sensitive information; and (c) Client will comply with the Acceptable Use Policy available at www.smarsh.com/legal/AUP. Smarsh may update the Acceptable Use Policy from time to
4.4. Client is responsible for creating an account within the Services and ensuring that (a) Client's account registration information is complete and accurate; and (b) Client's account credentials are confidential. Client will notify Smarsh immediately of any unauthorized use of Client's account or account credentials, or any other known or suspected breach of the security of Client's account. Client is responsible for the activity that occurs within Client's account and for Smarsh Services Agreement - General Terms | Page 2 of 9 asmarsh®
the actions or omissions of Client's employees, contractors or agents, whether such person is or was acting within the scope of their employment, engagement, or agency relationship. Client will not permit Smarsh competitors to access the Services.
4.5. Client may provide Representatives with access to the Services, may purchase Services on behalf of Representatives, or where Client is required to review Representative communications, Client may use the Services to meet such requirement. A "Representative" means any entity (a) that Client controls or that is under common control with Client; or (b) on behalf of which Client has a regulatory requirement to archive or review communications data. Representatives' use of the Services is subject to the terms of this Agreement. Client is responsible for the actions or omissions of each Representative whether such person is or was acting within the scope of their employment, engagement, or agency relationship.
4.6. Client may designate user roles with different levels of access for use or support of the Services.
An "Authorized User" is the administrative users) with the highest level of access and is responsible for managing the Services for Client. Only Authorized Users may appoint other Authorized Users, request or agree to changes to the Services, add or remove users, make billing inquiries, contact support, or take other, similar actions. A "User" is any individual who is granted login credentials to the Services. Users may not share account log in credentials.
5. Third Party Providers. The Services receive Client Data from third party sources and are dependent on the third party's services, software, applications, platforms (such as third party social media, business networking platforms systems, telecommunications carriers, or other messaging or communication services or APIs) ("Third Party Services"). Third Party Services are not offered, controlled or provided by Smarsh. A Third-Party Service may make changes to its service, or components thereof, or suspend or discontinue a service without notice to Smarsh. In addition, the availability of the Third-Party Service may depend on Client's compliance with the Third-Party Service terms. The Third-Party Service will have access to Client's data and will provide Client Data to Smarsh.
Smarsh does not control and is not responsible or liable for how the Third-Party Service transmits, accesses, processes, stores, uses, or provides data to Smarsh. Smarsh expressly disclaims all liability related to or arising from any Third-Party Service, including Client's use thereof, or liability related to or arising from any updates, modifications, outages, delivery failures, corruption of data, loss of data, discontinuance of services, or termination of Client's account by the Third-Party Service. Client is solely responsible for ensuring Client complies with all Third-Party Service terms and conditions. Client acknowledges that certain Third-Party Services do not represent that they are suitable for sensitive communications and do not encrypt messages sent over such Third-Party Services networks, including social media providers, telecommunication carriers and certain messaging platforms. Client agrees that if Client transmits sensitive health or financial information via these unsecure Third Party Services networks, Client assumes all risk associated with such transmission and is responsible for any damages or losses incurred with respect to transmitting such sensitive data over such networks and to Smarsh. Such transmission may also be a breach of the
6. Term & Termination.
6.1. Term. The Agreement will begin on the Effective Date and will remain in effect for the term specified in the Order Form or, if no term is specified, 12 months ("Initial Term"). The Initial Term will renew automatically for additional, successive 12-month terms (each a "Renewal Term"). unless Smarsh or Client provides the other party with written notice of non-renewal at least 60 days prior to the end of the Initial Term or the applicable Renewal Term, or either party terminates in accordance with section 6.2 or 6.3 below. The Initial Term plus any Renewal Term are, collectively, the "Term." Any Order Form executed after the Effective Date will co-terminate with Client's then-current Term.
6.2. Termination for Breach. Either party may terminate this Agreement if the other party materially breaches its obligations under this Agreement and such breach remains uncured for Smarsh Services Agreement - General Terms |Page 3 of 9
asmarsh
a period of 30 days following the non-breaching party's written notice thereof. Smarsh may suspend Client's access to the Services in the event of a breach of this Agreement and will not be liable for any damages resulting from such suspension.
6.3. Termination for Bankruptcy. This Agreement will terminate immediately, upon written notice, where (a) either party is declared insolvent or adjudged bankrupt by a court of competent jurisdiction; or (b) a petition for bankruptcy or reorganization or an arrangement with creditors is filed by or against that party and is not dismissed within 60 days.
6.4. Effect of Termination. Upon any termination or expiration of the Agreement: (a) all rights and licenses to the Services granted to Client by Smarsh will immediately terminate; (b) Client will pay any Fees due and payable up to the date of termination, except in the case of Smarsh's termination for Client's breach, and in such case, Client will pay the Fees owing for the remainder of the then-current Term; and (c) upon request, each party will return to the other or delete the Confidential Information of the other party; provided that if Client requests Smarsh to return Client Data from within Client's Professional Archive (defined in Professional Archive Service Specific Terms) instance, Client may (i) sign a separate Order Form for such Professional Services and will pay Smarsh's then-current data extraction and exportation fees plus any hardware costs as specified in such Order Form or (ii) sign a separate access-only agreement to maintain access to the Professional Archive with the ability to complete self-service exports.
7. Fees & Payment. Client will pay the fees for the Services as set forth in the Order Form ("Fees").
Following execution of the Order Form, Smarsh will activate or otherwise make available the Services listed in the Order Form by either delivering the software (if on-premise software is purchased) or providing Client with login credentials to an account within the applicable Service ("Activation Date"). Beginning on the Activation Date, Client will be invoiced for the recurring Fees per the invoice schedule in the Order Form. One-time fees and fees for professional services will be invoiced per the terms of the Order Form, or the applicable statement of work. Client will pay Fees within thirty (30) days of the date of the invoice. If Client disputes any Fees, Client must notify Smarsh within 120 days of the date of invoice. Invoices not disputed within 120 days from the date of invoice will be deemed accepted by Client. Smarsh may charge a late fee of 1.5% per month on any Fees not paid when due. Smarsh may suspend Client's access to the Services in the event Client fails to pay the Fees when due. Smarsh will increase Fees upon each Renewal Term, provided that any such increase will not exceed five percent (5%) of the then current Fees. Smarsh will provide ninety (90) days' prior written notice of any such increase in Fees.
8. Minimum Commitment & Invoice of Overages. Client agrees that the recurring Fees are Client's minimum purchase commitment during the Initial Term and, upon renewal, each Renewal Term.
The minimum commitment is the total sum of the recurring Fees set forth in the applicable Order Form. For Fees invoiced based on usage, (a) if Client's usage exceeds the minimum commitment specified in the Order Form, Smarsh will invoice, and Client will pay the additional Fees due for such usage at the rate specified in the Order Form; and (b) if Client's usage during a month is less than Client's minimum purchase commitment, Smarsh will invoice Client for the minimum purchase commitment. Client understands that even if Client terminates prior to the end of the Term or any Renewal Term, such minimum commitment shall be due to Smarsh.
9. Taxes. All Fees payable by Client under this Agreement are exclusive of taxes and similar assessments. Client is responsible for all sales, service, use and excise taxes, utility user's fees, VAT, 911 taxes, or universal service fund fees or taxes, taxes assessed on the use of software or any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable hereunder, other than any taxes imposed on Smarsh's Smarsh Services Agreement - General Terms | Page 4 of 9 a smarsh®
10. Confidentiality.
10.1. "Confidential Information" means (a) the non-public information of either party, including but not limited to information relating to either party's product plans, present or future developments, customers, designs, costs, prices, finances, marketing plans, business opportunities, software, software manuals, personnel, research, development or know-how; (b) any information designated by either party as "confidential" or "proprietary" or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential; (c) the terms of this Agreement; or (d) Client Data. "Confidential Information" does not include information that: (i) is in, or enters, the public domain without breach of this Agreement; (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; (iii) the receiving party knew prior to receiving such information from the disclosing party, as evidenced the receiving party's records; or (iv) the receiving party develops independently without reference to the Confidential Information.
10.2. Obligations with Respect to Confidential Information. Each party agrees: (a) that it will not disclose to any third party, or use for the benefit of any third party, any Confidential Information disclosed to it by the other party except as expressly permitted by this Agreement; and (b) that it will use at least reasonable measures to maintain the confidentiality of Confidential Information of the other party in its possession or control but no less than the measures it uses to protect its own confidential information. Either party may disclose Confidential Information of the other party: (i) pursuant to the order or requirement of a court, administrative or regulatory agency, or other governmental body, provided that the receiving party, if feasible and/or legally permitted to do so, gives reasonable notice to the disclosing party to allow the disclosing party to contest such order or requirement; or (ii) to the parties' agents, representatives, subcontractors or service providers who have a need to know such information provided that such party shall be under obligations of confidentiality at least as restrictive as those contained in this Agreement. Each party will promptly notify the other party in writing upon becoming aware of any unauthorized use or disclosure of the other party's Confidential Information.
10.3. Remedies. Each party acknowledges and agrees that a breach of the obligations of this Section 10 by the other party may result in irreparable injury to the disclosing party for which there may be no adequate remedy at law, and the disclosing party will be entitled to seek equitable relief, including injunction and specific performance, in the event of any breach or threatened breach or intended breach by the recipient of Confidential Information.
11. Intellectual Property. As between Smarsh and Client, all right, title and interest in and to the Services, the information technology infrastructure including the software, hardware, databases, electronic systems, networks, and all applications, APls or Client-Side Software (as defined in the Service Specific Terms) required to deliver the Services, or made available or accessible to Client by Smarsh, including all documentation the use or operation of the Services (collectively "Intellectual Property") are the sole and exclusive property of Smarsh. Except as expressly stated herein, nothing in this Agreement will serve to transfer to Client any right in or to the Intellectual Property. Smarsh retains all right, title and interest in and to Intellectual Property. As between Smarsh and Client, Client Data is the sole and exclusive property of Client and other than the limited license to Client Data granted hereunder, nothing in this Agreement will serve to transfer to Smarsh any intellectual property rights in Client Data.
12. Smarsh Representations and Warranties; Warranty Disclaimer.
12.1. Performance Warranty. Smarsh represents and warrants that it will provide the Services in accordance with generally accepted industry standards.
Smarsh Services Agreement - General Terms | Page 5 of 9 asmarsh®
12.2. Authority. Smarsh represents and warrants that it has the right and authority to enter into this Agreement and that the performance of its obligations under this Agreement will not breach, or conflict with, any other agreement to which Smarsh is a party.
12.3. Compliance with Laws. Smarsh represents and warrants that it will comply with the laws and regulations applicable to Smarsh in its performance of the Services.
12.4. Warranty Disclaimer; No Guarantee. EXCEPT AS SET FORTH ABOVE, SMARSH MAKES NO
REPRESENTATION OR WARRANTY OF ANY KIND IN CONNECTION WITH THE SERVICES,
PROFESSIONAL SERVICES OR SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY INFORMATION OR MATERIALS PROVIDED OR MADE AVAILABLE BY SMARSH. SMARSH
HEREBY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER
EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SMARSH DOES NOT
REPRESENT OR WARRANT THAT THE SERVICES OR SOFTWARE WILL BE AVAILABLE OR ERROR-FREE. SMARSH WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE
FAILURES OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS, OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF SMARSH.
SMARSH DOES NOT GUARANTEE THAT USE OF THE SERVICES BY CLIENT OR THE ADVICE,
CONSULTING OR PROFESSIONAL SERVICES PROVIDED TO CLIENT WILL ENSURE CLIENT'S
LEGAL COMPLIANCE WITH ANY FEDERAL, STATE, OR INTERNATIONAL STATUTE, LAW, RULE, REGULATION, OR DIRECTIVE. THE SOFTWARE IS NOT DESIGNED OR INTENDED FOR USE IN
HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING BUT NOT
LIMITED TO ANY APPLICATION IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE.
13. Indemnification.
13.1. Client Indemnification. Client will defend, indemnify and hold harmless Smarsh, its officers, directors, employees and agents, from and against all claims, losses, damages, liabilities and expenses (including fines, penalties, and reasonable attorneys' fees), arising from or related to the content of Client Data and Client's breach of the Service Specific Terms or Sections 4.2, 4.3,
4.4, 4.5, or 15.1 of this Agreement. Smarsh will (a) provide Client with prompt written notice upon becoming aware of any such claim; except that Client will not be relieved of its obligation for indemnification if Smarsh fails to provide such notice unless Client is actually prejudiced in defending a claim due to Smarsh's failure to provide notice in accordance with this Section
13.1(a); (b) allow Client sole and exclusive control over the defense and settlement of any such claim; and (c) if requested by Client, and at Client's expense, reasonably cooperate with the
13.2. Smarsh Indemnification. Smarsh will defend, indemnify and hold Client harmless from third- party claims arising from a claim that the Services infringe any United States patent, trademark or copyright; provided that, Client shall (a) provide Smarsh with prompt written notice upon becoming aware of any such claim; (b) allow Smarsh sole and exclusive control over the defense and settlement of any such claim; and (c) reasonably cooperate with Smarsh in the defense of such claim. Notwithstanding the foregoing, Smarsh will not be liable for any claim that relates to or arises from: (i) custom functionality provided to Client based on Client's specific requirements; (ii) any modification of the Services by Client or any third party; (iii) the combination of the Services with any technology or other services, software, or technology not provided by Smarsh; or (iv) Client's failure to use updated or modified versions of the Services made available by Smarsh. Except as expressly provided in Section 14.1.3, the indemnification obligation contained in this Section 13.2 is Client's sole remedy, and Smarsh's sole obligation, with respect to claims of infringement.
Smarsh Services Agreement - General Terms | Page 6 of 9 •smarsh®
14. Remedies and Limitation of Liability.
14.1. Remedies.
14.1.1. In the event of a breach of any warranty under Section 12 Smarsh will use commercially reasonable efforts to provide Client with an error correction or work-around that corrects the reported non-conformity. The foregoing remedy is Client's sole and exclusive remedy for a breach of Section 12.
14.1.2. In the event of a breach of the applicable Service Level Agreement, Smarsh will provide Client with the credit stated in the Service Level Agreement. The foregoing remedy is Client's sole and exclusive remedy for a breach of the applicable Service Level Agreement.
14.1.3. If the Services are subject to a claim of infringement under Section 13.2, Smarsh may, in its sole discretion, either (a) procure for Client the right to continue to use the Services; (b) modify the Services such that they are non-infringing; or (c) if in the reasonable opinion of Smarsh, neither (a) nor (b) is commercially feasible, then Smarsh may, upon thirty (30) days' prior written notice to Client, terminate the applicable Service.
14.2. Limitation of Liability.
14.2.1. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER, OR TO ANY THIRD PARTY,
FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF: USE, DATA, BUSINESS, OR PROFITS), ARISING FROM OR
IN CONNECTION WITH THE SERVICES OR SOFTWARE (AS DEFINED IN THE SERVICE
SPECIFIC TERMS), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY,
TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH
DAMAGES WERE FORESEEABLE OR WHETHER THE PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SMARSH WILL NOT BE LIABLE FOR ANY DAMAGES,
WHETHER CONSEQUENTIAL OR OTHERWISE, ARISING FROM OR RELATED TO CLIENT'S
NON-COMPLIANCE WITH ANY FEDERAL, STATE, OR INTERNATIONAL STATUTE, LAW, RULE, REGULATION, OR DIRECTIVE.
14.2.2.EXCEPT WITH RESPECT TO SECTION 13.1 (CLIENT INDEMNIFICATION), EACH PARTY'S
AGGREGATE LIABILITY FOR ALL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, NOTWITHSTANDING THE FORM IN WHICH ANY ACTION IS BROUGHT (E.G.,
CONTRACT, TORT, OR OTHERWISE), WILL NOT EXCEED THE TOTAL FEES ACTUALLY
RECEIVED BY SMARSH FROM CLIENT FOR THE APPLICABLE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT FROM
WHICH THE DAMAGES AROSE
14.2.3.THE LIMITATION OF LIABILITY SET FORTH ABOVE IS CUMULATIVE; ALL PAYMENTS MADE
FOR ALL CLAIMS AND DAMAGES WILL BE AGGREGATED TO DETERMINE IF THE LIMIT HAS BEEN REACHED.
15. General Terms.
15.1. Export Restrictions. The Services and Software (as defined in the Service Specific Terms), including any software, documentation and any related technical data included with, or contained in, the Services of Software, may be subject to United States export control laws and regulations. Smarsh Public IM policy manager is classified under Export Control Classification Number (ECCN) 5D002.c.1 and has been qualified for export under authority of license exception ENC, in accordance with sections 740.17(d) and 740.17(b)(3) of the U.S. Export Administration Regulations, 15 C.F.R. Part 730 et seq. (the "EAR"). It may not be downloaded or otherwise exported or re-exported into (or to a national or resident of) Crimea- Region of Ukraine, Cuba, Iran, North Korea, Sudan, Syria or any other country to which the United States has embargoed goods; or any organization or company on the United States Commerce Department's "Denied Smarsh Services Agreement - General Terms | Page 7 of 9 smarsh®
Parties List." Client will comply with the export laws and regulations of the United States and other applicable jurisdictions when using the Services. Client will not transfer the Software, or any other software or documentation provided by Smarsh (a) to any person on a government promulgated export restriction list; or (b) to any U.S.-embargoed countries. Without limiting the foregoing: (a) Client represents that it and its Authorized Users and any other users of the Services are not named on any United States government list of persons or entities prohibited from receiving exports; (b) Client represents that Client will not use the Software or Services in a manner which is prohibited under United States Government export regulations; (c) Client will comply with all United States anti-boycott laws and regulations; (d) Client will not provide the Software or Service to any third party, or permit any user to access or use the Software or Service, in violation of any United States export embargo, prohibition or restriction; and (e) Client will not, and will not permit any user or third party to, directly or indirectly, export, re-export or release the Software or Services to any jurisdiction or country to which, or any party to whom, the export, re-export or release is prohibited by applicable law, regulation or rule.
15.2. Assignment. Neither party may assign this Agreement, in whole or in part, without the other party's prior written consent, except that either party may assign this Agreement without the other's consent in the case of a merger, reorganization, acquisition, consolidation, or sale of all, or substantially all, of its assets. Any attempt to assign this Agreement other than as permitted herein will be null and void. This Agreement will inure to the benefit of, and bind, the parties' respective successors and permitted assigns.
15.3. Force Majeure. A failure of party to perform, or an omission by a party in its performance of, any obligation of this Agreement will not be a breach of this Agreement, nor will it create any liability, if such failure or omission arises from any cause or causes beyond the reasonable control of the parties, including, but not limited to the following (each a "Force Majeure Event"): (a) acts of God; (b) acts or omissions of any governmental entity; (c) any rules, regulations or orders issued by any governmental authority or any officer, department, agency or instrumentality thereof; (d) fire, storm, flood, earthquake, accident, war, rebellion, insurrection, riot, strikes and lockouts; or (e) utility or telecommunication failures; so long as such party uses reasonable efforts to resume performance after any such Force Majeure Event.
15.4. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflict/choice of law principles. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Multnomah County, in the State of Oregon, and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
15.5. Relationship of the Parties. The parties are independent contractors as to each other, and neither party will have power or authority to assume or create any obligation or responsibility on behalf of the other. This Agreement will not be construed to create or imply any partnership, agency, or joint venture.
15.6. Notices. Any legal notice under this Agreement will be in writing and delivered by personal delivery, express courier, certified or registered mail, postage prepaid and return receipt requested, or by email. Notices will be deemed to be effective upon personal delivery, one (1) day after deposit with express courier, five (5) business days after deposit in the mail, or when receipt is acknowledged in the case of email to Smarsh. Notices will be sent to Client at the address set forth on the Order Form or such other address as Client may specify. Notices will be sent to Smarsh at the following address: Smarsh Inc., Attention: Legal, 851 SW 6th Ave, Suite 800, Portland, OR 97204, or in the case of email, to [email protected].
15.7. Publicity. Smarsh may disclose that Client is a customer of Smarsh.
15.8. Severability; Waiver. If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. Failure of either party to insist on strict Smarsh Services Agreement - General Terms | Page 8 of 9 •smarsh®
performance of any provision herein will not be deemed a waiver of any rights or remedies that either party will have and will not be deemed a waiver of any subsequent default of the terms and conditions thereof.
15.9. Entire Agreement; Electronic Signatures. This Agreement is the entire agreement between the parties with respect to its subject matter, and supersedes any prior or contemporaneous agreements, negotiations, and communications, whether written or oral, regarding such subject matter. Smarsh expressly rejects all terms contained in Client's purchase order documents, or in electronic communications between the parties, and such terms form no part of this Agreement. The parties agree that electronic signatures, whether digital or encrypted, or Client's click-through acceptance of this Agreement, give rise to a valid and enforceable agreement.
15.10. Amendments. Smarsh may amend this Agreement by posting a revised version to www.smarsh.com/legal or at the Services log-in prompt. Client accepts the revised version of this Agreement by either (a) click-through acceptance at the Services log-in prompt; (b) execution of an Order Form incorporating the revised version; or (c) continued use of the Services for 30 days following the earliest notice of such revised version provided to an Authorized User at the Services log-in prompt.
16. IF CLIENT IS LOCATED IN EUROPE, THE FOLLOWING MODIFICATIONS TO THE ABOVE TERMS APPLY:
16.1. Sections 14.2.1 - 14.2.3 are replaced with the following Sections 14.2.1 - 14.2.3:
14.2.1 Limitation of Consequential Damages. Subject to 14.2.3, in no event shall either party be liable under or in relation to this Agreement or its subject matter (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) for any: (a) loss of profits; (b) loss of sales; (c) loss of turnover; (d) loss of, or loss of use of, any (i) software or (ii) data; (e) loss of use of any computer or other equipment or plant; (f) wasted management or other staff time; (g) losses or liabilities under or in relation to any other contract; or (h) indirect, special or consequential loss or damage.
14.2.2 Limitation on Direct Damages. Subject to Sections 14.2.1 and 14.2.3, Smarsh's aggregate liability arising from or in connection with this Agreement (and whether the liability arises because of breach of contract, negligence, misrepresentation or for any other reason) shall not exceed 1.25 times the amounts paid or payable (having been invoiced but not yet paid) by Client for the license to use the Service.
14.2.3 Notwithstanding anything to the contrary in this Agreement, neither party excludes or limits its liability in respect of death or personal injury caused by the negligence of that party, its servants or agents, breach of any condition as to title or quiet enjoyment implied by Section 12 Sale of Goods Act 1979 or Section 2 Supply of Goods and Services Act 1982, or liability for fraudulent misrepresentation or such other liability which cannot under applicable law be excluded or limited by Agreement.
16.2. Section 15.4 is replaced with the following:
15.4 Governing Law and Jurisdiction. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the English courts. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement prevents either party from seeking injunctive relief in the appropriate Smarsh Services Agreement - General Terms | Page 9 of 9 Acceptable Use Policy
September 19, 2019
This Acceptable Use Policy ("AUP"') describes the proper use of the Services and Groups available through Smarsh Central. This AUP is incorporated by reference into the Agreement.
Smarsh may suspend or terminate Client's use of the Services, any User's access to Groups on Smarsh Central, or the Agreement, if Client or any of Clients Users or Representatives violate this AUP. As between Client and Smarsh, Client is solely responsible for the data, content, messages, or other information that Client transmits, archives, distributes, displays, uploads or downloads through its use of the Services.
Prohibited Activities
Client shall not use the Services to:
(a) commit a crime, violate any rights of a person or entity (including intellectual property rights), or violate any local, state, national, or international law, rule or regulation, as applicable. (b) impersonate a person or entity or to otherwise misrepresent any affiliation with a person or entity; (c) commit fraud or make fraudulent offers or advertisements (i.e., make money fast schemes, chain letters, pyramid schemes);
(d) transmit harmful or potentially harmful code, including viruses, Trojan horses, worms, time bombs or any other computer programming routines that could damage, interfere with, surreptitiously intercept, or expropriate any system, program, data or personal information; (e) transmit bank, credit card or debit card numbers or other card numbers, or other financial account information such as cardholder name, expiration date, PIN or PIN blocks, service code, or track data from a magnetic strip or chip.
(f) create a false identity or forged email address or header, or phone number, or otherwise attempt to mislead others as to the identity of the sender or the origin of a message or phone call; (g) circumvent another service offered by Smarsh, such as subscribing to email archiving for the purpose of archiving email marketing;
(i) act in a way that will subject Smarsh to any third-party liability.
Client shall not (a) reverse engineer any Service; (b) attempt to bypass or break any security mechanism on any of the Services; or, (c) use the Services in a manner that poses a security or service risk to Smarsh or other users.
Interference with Services is Prohibited
Client shall not engage in, or attempt to engage in:
(a) unauthorized access to or use of the Services, data, or the networks or systems, including an attempt to probe, scan or overload a Smarsh system or the Services, or to breach security or authentication measures without express authorization;
(b) unauthorized monitoring of code, data, or traffic on a system without express authorization; (c) deliberate attempts to overload a system and broadcast attacks; (d) an action that imposes an unreasonable or disproportionately large load on Smarsh's infrastructure;
(e) performance of a program/script/command or sending messages of any kind that are designed to interfere with a user's terminal session, by any means, including locally or by the Internet; (f) the use of manual or electronic means to avoid any use limitations placed on the Services, such (g) any other activity that could be reasonably interpreted as unauthorized access to or interference with the Services.
Laws Specific to Communications
Clients shall comply with all laws that apply to communications, including wiretapping laws, the Telephone Consumer Protection Act, the Do-Not-Call Implementation Act, CAN-SPAM Act of 2003 and any other laws or regulations applicable to communications, including any third party policies such as the applicable guidelines published by the Cellular Telecommunications Industry Association, the Mobile Marketing Association. |
If Client uses the Services in connection with any bulk and commercial email practices Client shall, in accordance with applicable law:
(a) obtain the verifiable consent of e-mail recipients via affirmative means; (b) obtain necessary consents in accordance with applicable law; (c) retain evidence of consents in a form that may be produced on request; (d) allow a recipient to revoke consent;
(e) post an email address for complaints in a conspicuous place; (f) have a privacy policy posted for each domain associated with the mailing; (g) have the means to track anonymous complaints;
(h) not obscure the source of the Client e-mail in any manner; and (i) not attempt to send any message to an email address after such number of rejections as is specified by law.
Updates
Smarsh may revise and update this AUP from time to time.
Current Version of AUP: Version 5, Effective September 19, 2019. asmarsh®
Smarsh Support and Service Levels
1. Support
Smarsh offers a broad range of support services, and our Global Support team is committed to ensuring Client's successful use of the Smarsh Connected Suite.
1.1. Support Packages
The Smarsh Basic support package is included with all Smarsh services at no additional charge. Client may purchase a premium support package to extend hours of support coverage, receive support from named https://central.smarsh.com ("Smarsh Central").
Support Packages
Features Basic PRO Plus PRO Elite BCS BCS Elite
Access to Smarsh Central
Self-Service Support
Resources
Access to System Status
Page Updates and
Subscriptions
Products Updates, Fixes,
and Enhancements V
(Standard Release Cycle)
Web-based Support
24/7 Phone Support for
Severity 1 Issues
Enhanced Support
Response Times
Named Technical Support
Engineer(s)
Assigned Technical
Account Manager(s)
Weekly Status Calls
Annual Account Reviews
Quarterly Account
Reviews
Regular Account Reports
Smarsh University
Subscription
Named Executive Sponsor
Dedicated Account Status
Page
US: +1 (866) 762-7741 UK: +44 (0) 800-048-8612 www.smarsh.com •smarsh
1.2. Service Incidents and Support Requests
Except with respect to Severity Level 1 issues, Smarsh recommends reporting issues regarding availability or performance of the Services by creating a case at Smarsh Central. All Severity Level 1 issues must be reported by calling 866-SMARSH-1. Support requests must include a detailed description of the error or request, including the operating conditions that gave rise to the error. The individual requesting support will receive notification via email to confirm receipt of a Support request, along with a case number for reference. Smarsh standard phone support is available Monday through Friday between the hours of 8 am and 8 pm Eastern (excluding United States Federal Holidays). If Client purchases a premium support package, standard phone support hours are expanded. Off-hours phone support is available 24 hours per day, 365 days per year for Severity Level 1 or 2 issues. Smarsh may limit the right to submit support requests to a maximum of 10 Users, unless specified otherwise in the Agreement.
Severity Description
Issue impacts multiple users: Service is down, or major functionality is unavailable or materially impacted by performance issues, and no workaround is available.
Issue impacts multiple users: important features are unavailable or degraded, or multiple users are degraded, and no workaround is available.
2 Or
The issue impacts a single user, major functionality is unavailable or materially impacted by performance issues, and no workaround is available.
Issue impacts multiple or single users: important features are unavailable, but a 3 or
intermittent disruption of Services.
A minor feature is unavailable,
4 Or
there is a minor performance impact
1.3. Initial Response
After Client creates a case, Smarsh will use commercially reasonable efforts to respond to Client within the target response time indicated below for the corresponding severity level and support package. For all packages, Smarsh will respond to routine service requests (e.g. requests for information, password resets, reports of potential defects, feature requests, and troubleshooting guidance) within one business day.
Target Initial Response Time
Severity Basic 3 PRO Plus, PRO Elite,
BCS, BCS Elite
60 minutes 30 minutes
2 2 hours 1 hour
3 4 hours 2 hours
1 business day 8 hours
US: +1 (866) 762-7741 UK: +44 (0) 800-048-8612 www.smarsh.com asmarsh®
1.4. Resolution Process
Smarsh will address and resolve issues with the Services reported by Client that are within the control of Smarsh based on the resolution process indicated below for the corresponding severity level. If Client urchases a premium support package, Smarsh will provide notification of a target resolution o orkaround plan, updates, and escalation based on the process for the corresponding severity leve Resolution Process
PRO Plus, PRO Elite, BCS, BCS Elite
Severity All packages Notification of Resolution Escalation to Updates Management
Target
Smarsh will Within 4 hours after initial Every hour f the issue is not investigate the response esolved within &
issue and will hours after initial
work response
continuously
until the error is
fixed or a
temporary
workaround is
implemented.
Smarsh will Within 48 hours after initial Every 4 hours If the issue is not investigate the response resolved within 3
issue and will business days
work after initial
2 continuously response
until the error is
fixed or a
temporary
workaround is
implemented.
Smarsh will work Within 4 days after initial Every day If the issue is not during normal response resolved within 5
business hours business days
3 to investigate after initial
the issue and response
implement a fix
or workaround.
Smarsh will work Within 7 days after initial Every day As agreed by the to provide a fix in response parties.
4 release.
1.5. Escalation Process
Client may escalate an active support case if (i) Client is not satisfied with the resolution method implemented by Smarsh, (ii) there has been a significant change in the business impact to Client after the issue was reported, or (iii) Smarsh fails to respond in a timely manner during the resolution process.
Instructions for initiating the escalation process are available at Smarsh Central.
US: +1 (866) 762-7741 UK: +44 (0) 800-048-8612 www.smarsh.com Page 3 of 5 •smarsh
2. Service Levels
This section 2 applies only to Connected Archive and Cloud Capture products. It does not apply to Capture Server products.
2.1. Definitions
"Availability" means that Client can access the platform and is measured using the formula in section 2.2 below.
"Emergency Maintenance" means maintenance required to: (i) maintain Availability on a go-forward basis, or (ii) execute a critical security change
"Outages" means unplanned service interruptions that temporarily prevent access to major functions of the applicable platform.
"Planned Maintenance" means: (i) maintenance that occurs during applicable maintenance windows specified in section 2.4 below, or (i) maintenance that occurs outside applicable maintenance windows for which Smarsh has provided advance notice in accordance with section 2.4 below.
2.2. Uptime Commitment
The Availability for the production instance of a Connected Suite product during each calendar month (the "Uptime Commitment") is as specified below. The Uptime Commitments specified below do not apply to user acceptance testing environments or other non-production environments.
Product Uptime Commitment
Connected Archive
Professional Archive 99.9%
Enterprise Archive
(multi-tenant instance) 99.9%
Cloud Capture
MobileGuard 99.9%
Vantage 99.9%
Socialite 99.9%
Availability is measured using the following industry-standard formula:
Availability (less Planned Maintenance) = Total Minutes in a Month (30 days) - Total Downtime in the Month - * 100 Total Minutes in a Month (30 days)
US: +1 (866) 762-7741 UK: +44 (0) 800-048-8612 www.smarsh.com Page 4 of 5 asmarsh®
2.3. Service Credits
If Smarsh does not meet its Uptime Commitment in any calendar month, Smarsh will issue Client a credit for a portion of Client's platform Fees for the affected Service in accordance with the table below. Client must request credits within thirty (30) days from the end of the month in which Smarsh did not meet its Uptime Commitment. Smarsh will use its diagnostic monitoring tools to verify its failure to meet its Uptime Commitment before Smarsh issues a credit. Smarsh will apply applicable credits to Client's next invoice.
Uptime Service Credit
98.0% - 99.89% 5% of monthly platform Fee (or 0.5% of annual platform Fee)
95.0% - 97.9% 10% of monthly platform Fee (or 1% of annual platform Fee) Below 95.0% 20% of monthly platform Fee (or 1.75% of annual platform Fee)
2.4. Maintenance Windows
Smarsh provides maintenance notifications and reminders, and Client may subscribe to such notifications and reminders, through the Status Page at https://status.smarsh.com/.
2.4.1. Professional Archive. To the extent reasonably possible, Smarsh will refrain from performing aintenance that causes interference with or disruption to Client's access to Professional Archiv marsh will perform planned maintenance during the maintenance windows specified below. To th extent feasible, Smarsh will provide 48 hours' advance notice of any maintenance it will perforn outside its maintenance windows and that may cause interference with or disruption to Client's access to Professional Archive.
Professional Archive maintenance windows:
Mon-Thurs: 12:00 AM-5:00 AM and 9:00 PM-11:59 PM Eastern Fri: 12:00 AM-5:00 AM and 6:00 PM-11:59 PM Eastern
Weekends: any time
2.4.2. Enterprise Archive and Cloud Capture products. To the extent reasonably possible, Smarsh will Enterprise Archive or Cloud Capture during normal business hours for the region in which Client's Enterprise Archive or Cloud Capture instance is deployed. Smarsh will perform planned maintenance during the maintenance windows specified below. To the extent feasible, Smarsh will provide at least three (3) days' advance notice of any maintenance it will perform outside its maintenance windows ind that may cause interference with or disruption to Client's access to Enterprise Archive or Clou apture. Smarsh may perform Emergency Maintenance without providing advance notice to Clien Enterprise Archive and Cloud Capture products maintenance windows:
Mon-Fri: 12 AM - 5AM and 8 PM - 11:59 PM
Weekends: any time
The times specified above are local to the region in which Client's Enterprise Archive or Cloud Capture instance is deployed.
US: +1 (866) 762-7741 UK: +44 (0) 800-048-8612 www.smarsh.com •smarsh™
Capture. Reveal. Respond.
Service Specific Terms - Professional Archive
These Service Specific Terms - Professional Archive apply only to Client's purchase and use of the Connected Archive Professional Archive Service. Unless expressly stated otherwise, capitalized terms contained in these Service Specific Terms have the meaning given them in the Smarsh Service Agreement - General Terms.
1. Descriptions. The "Professional Archive" is a Service that captures data from the Client's Third Party Services and archives it as Client Data. The Professional Archive includes a supervision module for compliance review and a discovery module for managing collection and export of communications for litigation holds, eDiscovery, and regulatory audits. To enable the Professional Archive to receive Client Data, Client must purchase a bundle of Connections. A "Connection" means one of the following, as applicable to the specific Channel: (a) a user account such as an email mailbox; (b) an instant message account or screen name; (c) a social media page or profile; or (d) a mobile device phone number.
2. Data Retention. Smarsh will retain Client Data captured by the Professional Archive during the Term of the Agreement for a default retention period of up to 7 years at no additional charge. If Client requires Client Data captured by the Professional Archive to be retained for longer than 7 years, Client must purchase extended data retention. Client may implement retention policies within the Professional Archive. Client is solely responsible for ensuring that the default retention period or any other retention policies implemented by Client within the Professional Archive comply with any applicable legal, regulatory, or Client internal requirements. Data that Client sends on removable media to Smarsh for import into the Professional Archive as Client Data will be subject to import fees and additional storage fees, as specified in the applicable Order Form. Data that is sent from Connected Capture or any other external capture service to the Professional Archive as Client Data will be subject to additional storage fees, as specified in the applicable Order Form. Following termination or expiration of the Agreement, Smarsh will retain Client Data for a minimum of six (6) allow time for Client to make alternative arrangements for long-term data storage.
Thereafter, Smarsh may delete Client Data in its sole discretion.
3. Data Exports. During the Term, Client may complete self-service exports of Client Data at no additional charge by logging into the Professional Archive. Client may also engage Smarsh to perform exports of Client Data on Client's behalf by signing a separate Order Form and paying the associated Professional Services Fees. Following termination or expiration of the Agreement, Client may maintain access to the Professional Archive and the ability to complete self-service exports by executing a separate historical access agreement. In the alternative, Client may engage Smarsh to perform an export on Client's behalf of all or a portion of the Client Data remaining in the Professional Archive by signing a separate Order Form and paying the associated Professional Services Fees.
3. Client Obligations. Client is responsible for configuring applicable third-party platforms or systems to transmit Client Data to the Professional Archive. If Client wishes to ingest its historical data into the Professional Archive, Client must provide such data in a format acceptable to Smarsh. No later than the second business day of each month, Client shall submit to Smarsh usage reports for the prior month in a format specified by Smarsh.
4. Client-Side Software Terms. Certain Channels may require Client to install software ("Client- Side Software") to allow the Professional Archive to receive Client Data. If Client-Side Software is provided to Client by Smarsh, upon delivery of the Client-Side Software Smarsh grants Client a limited, non-exclusive, non-sublicensable license to download and install the applicable Client-Side Software onto Client's end user's computer, laptop, or mobile device (as applicable), for which Client has purchased a Connection, or on Client owned or controlled servers, plus one copy for backup or archival purposes. Smarsh, and its licensors retain all rights in and to the Client-Side Software that are not expressly granted to Client in this Section 4.
asmarsh™
Capture. Reveal. Respond.
5. Datacenters. The Professional Archive is hosted on Smarsh-managed infrastructure in the United States.
Service Level Agreement. The Service Level Agreement applicable to the Professional Archive is available at https://www.smarsh.com/legal/ConnectedArchiveSLA.