This Schedule will control in case of any conflict between the terms and conditions in this Schedule and the Agreement with respect to Fortra’s Digital Guardian Managed Services.
1. DEFINITIONS
1.1. “Authorized Users” is as defined in the Agreement.
1.2. “Client Data” is as defined in the Agreement.
1.3. “Client Metadata” means the data usage events such as “File Name”, “User Name”, “Type of Event (Email, Upload, Copy et al)”, “Time & Date”, etc. captured by the Digital Guardian software as it monitors, controls, and/or protects Client Data. Client Metadata is transmitted over the network, in digitally signed and encrypted bundles, to the Digital Guardian management console for reporting and analysis purposes.
1.4. “Managed Services” means the Digital Guardian managed services that are ordered by Client under an Order Form and made available by Fortra online via the customer login link.
1.5. “Seats” means, for purposes herein, the total number of operating system instances on which the Digital Guardian software is installed for Client or one of Client’s affiliates and/or the number of Authorized Users accessing a shared virtualized server environment hosted on such server(s) where the Digital Guardian software resides for Client or one of Client’s affiliates.
1.6. “Service Specifications” means the service descriptions that are applicable to the Managed Services, including any hosting, support and security policies and other descriptions referenced or incorporated in such descriptions or the Order Form.
1.7. “Subscription Period” is as defined in the Agreement.
1.8. “Third-party Software” is as defined in the Agreement.
2. MANAGED SERVICES
2.1. Provision of Services. Fortra shall make the Managed Services available to Client pursuant to this Schedule, the relevant Order Form, and the relevant service descriptions set forth in the Service Specifications during the Subscription Period. Client agrees that its purchases hereunder are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Fortra regarding future functionality or features.
2.2. Managed Services. Unless otherwise specified in an applicable Order Form, (i) Managed Services are purchased as a specific number of Seats and may be used on no more than the specified number of Seats identified in the Order Form, (ii) additional Seats may be added during the applicable Managed Services term at the same pricing as that for the pre-existing services thereunder, prorated for the remainder of the services term in effect at the time the additional Seats are added, and (iii) the added Seats shall terminate on the same date as the pre-existing services.
2.3. Service Specifications. The Managed Services are subject to and governed by the Service Specifications. Service Specifications may define provisioning and management processes applicable to the Managed Services, types and quantities of system resources, functional and technical aspects of the Managed Services, as well as any Managed Services deliverables, if applicable. Client acknowledges that use of the Managed Services in a manner not consistent with the Service Specifications may adversely affect Managed Services performance and/or may result in additional fees.
Fortra may make changes or updates to the Managed Services (such as infrastructure, security, technical configurations, application features, etc.) during the applicable Subscription Period, including to reflect changes in technology, industry practices, patterns of system use, and availability of Third Party Software. The Service Specifications are subject to change at Fortra’s discretion.
3. USE OF THE SERVICES
3.1. Fortra’s Responsibilities. Fortra shall: (i) provide basic support for the Managed Services to Client at no additional charge as per the Service Specifications, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Managed Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Fortra shall give at least eight (8) hours’ notice via the Managed Services and which Fortra shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Eastern Time), or (b) any unavailability caused by circumstances beyond Fortra’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, pandemics, civil unrest, acts of terror, strikes or other labor problems (other than those involving Fortra employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Managed Services only in accordance with applicable laws and government regulations.
3.2. Fortra’s Protection of Client Metadata. Fortra shall use commercially reasonable efforts and maintain reasonable and appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Client Metadata. Fortra shall not (a) disclose Client Metadata, except as compelled by law in accordance with the Confidentiality Section of the Agreement or as expressly permitted in writing by Client, or (b) access Client Metadata except to provide the Managed Services and prevent or address service or technical problems related thereto, or at Client request in connection with customer support matters.
3.3. Client Responsibilities. Client shall (i) be responsible for its compliance with the Agreement as well as the service requirements in the Order Form(s) and Service Specifications, (ii) be responsible for the accuracy, quality and legality of Client Data and of the means by which Client acquired Client Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Digital Guardian software, and notify Fortra promptly of any such unauthorized access or use, and (iv) use the Digital Guardian software only in accordance with the applicable user guides and applicable laws and government regulations. Client shall not (a) make the Digital Guardian software available to anyone other than Client’s own employees and subcontractors and on Client’s own Seats, or (b) access the Digital Guardian software for purposes of monitoring the their availability, performance or functionality, or for any other benchmarking or competitive purposes. Digital Guardian software will become “unsupported” if Client disables or interferes with the Digital Guardian software in any way. Client agrees that Fortra may access Client’s system with Client’s prior written consent (which consent shall not be unreasonably withheld) to uninstall any applicable Digital Guardian software if Client disables them or interferes with their performance.
4. UNAUTHORIZED ACCESS TO CLIENT DATA OR USE OF THE MANAGED SERVICES
4.1. Fortra is not responsible to Client or any third party for unauthorized access to Client Data or the unauthorized use of the Managed Services unless the unauthorized access or use results from Fortra’s failure to meet its obligations under the Agreement, including but not limited to, Fortra security obligations stated in the Agreement or the Managed Services description. Client is responsible for the use of the Managed Services by any employee or subcontractor of Client, any person Client authorizes to use the Managed Services, any person to whom Client has given access to the Managed Services, and any person who gains access to Client Data or the Managed Services as a result of Client’s failure to use reasonable security precautions, even if such use was not authorized by Client.
4.2. Sample Match Services and Sample Match Data. Fortra’s Digital Guardian software employs certain features that may collect sensitive data or other information about Client and Client’s Authorized Users, including but not exclusive to names, addresses, e-mail addresses, social security numbers, credit card numbers or any other information. This information may be collected when the Client deploys the Digital Guardian service, with rules that would match these sensitive data types. A sample of this data is then transmitted and stored via encrypted services to the Digital Guardian reporting repository to be later used by the Client in the normal course of reviewing event/alert information within the Digital Guardian software (collectively, “Sample Match Data”). The collection of Sample Match Data may be necessary to provide Client and Client’s Authorized Users with the relevant Digital Guardian software functionalities as specifically ordered by Client (“Sample Match Services”). By default, Sample Match Data collection is disabled, and a dedicated add-on module license is required for Sample Match Data collection enablement. Fortra will use the Sample Match Data only to provide to Client the Digital Guardian software as enabled. Client is solely responsible for the content of all Sample Match Data. Client will secure and maintain all rights to the Sample Match Data necessary for Fortra to provide the Digital Guardian software to Client without violating or infringing on the rights (including but not limited to the privacy and intellectual property rights) of any third party or otherwise obligating Fortra to Client or to any third party.
5. FEES AND PAYMENT FOR SERVICES
5.1. Managed Services Fees. Client shall pay all fees specified in all Order Form(s) hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancellable and fees paid are non-refundable, and (iii) the number of Seats purchased cannot be decreased during the relevant Managed Services term stated on the Order Form. Fees may consist of (i) a setup fee for deployment and configuration of the system, and/or (ii) a monthly per seat on-going service fee.