Professional Services Agreement

This Professional Services Agreement ("Agreement") is a legal agreement between a natural or legal person ("Customer") and Saporo SA ("Saporo"), a Swiss corporation headquartered in Lausanne, Switzerland, or any affiliate of Saporo ("Licensor" and together the "Parties"). 

SECTION 1: DEFINITIONS 

The following definitions and rules of interpretation shall apply to this Contract:

1.1 "Commencement Date" the date on which performance of the Services is to commence, as set out in each Work Order; 

1.2 "Confidential Information" any information which is disclosed pursuant to or in connection with this Agreement (whether orally or in writing, disclosed by a party and whether or not such information is expressly declared to be confidential) or which otherwise comes into the possession or control of a party and/or which is either the property of a party or would be confidential by operation of law, or which is expressly declared by the disclosing party to be confidential or sensitive information. Such information includes, but is not limited to: information relating to administrative, structural, financial, technical or operational arrangements, data, know-how, intellectual property, including, but not limited to, software programs (including source code, object code and assembly code), strategies, lists of customers, suppliers and other contractors, trade secrets, processes, algorithms, research, specifications, and any images or visual observations made on a party's premises ; 

1.3 "Client Services Manager" the Client's manager assigned to coordinate the Services, as defined in a Task Order or as agreed to by the Parties from time to time; 

1.4 "Deliverables" all documents, products and materials developed by Service Provider or its agents, subcontractors, consultants and employees under a Task Order; 

1.5 "Agreement Effective Date" of this Agreement is the date set forth at the beginning of this Agreement. 

1.6 "Work Order Effective Date" is the date listed in a specific Work Order as its start date. This date may be different from the Work Order Start Date. 

1. 7 "Intellectual Property Rights" all patents, rights of invention, utility models, copyrights and related rights, trademarks, service marks, trade names, company names and domain names, rights in trade dress or make-up, rights in goodwill or rights to sue for infringement, unfair competition rights, design rights, computer software rights, database rights, topography rights, rights in confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications, renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world. 

1.8 "Confidential Information", means all information related to know-how, financial, business, intellectual property and other information, in whatever form or medium, including, without limitation, any trade secrets, technical advice or knowledge, processes, financial data, technical data and documentation, strategic planning, product/service specifications, prototypes, marketing data and client information, that is furnished or disclosed by Saporo or any of its affiliates or any of its clients to [co-contractor] whether in oral, tangible, electronic or other form. All Confidential Information shall remain the exclusive property of Saporo.

1.9 "Trade Secret Rights", means all (a) trade secrets and (b) processes, techniques, practices, knowledge, skills, research and development, and other proprietary information not protected by published patent applications or issued patents, in each case, that are specifically associated with (i) Saporo’s methods, algorithms and graph queries including cypher and other query languages applicable to graph databases, (ii) models built to simulate attack methods such as DCSync or ransomware attacks, (iii) Saporo's Artificial Intelligence algorithms applied to the context of attack paths, graph databases and security vulnerabilities, (iv) collectors such as Saporo’s proprietaryMicrosoft Active Directory data collector and, (v) Saporo’s score resistance calculation method such as Generic resistance, DCSync and ransomware.

1.9 "Saporo Integration Code" is code that has been created by Saporo to facilitate data communication between Saporo Software Components and certain third party software programs. Such code is not included as standard in the Saporo Software Components but may be provided to Customer during the Services as part of a set of Deliverables, but in no event shall such code constitute custom work for Customer and Customer obtains only a license to use but no proprietary intellectual property rights. 

1.10 "Saporo Services Manager" means the Saporo manager assigned to coordinate the Services, as defined in a work order or as agreed to by the parties from time to time; 

1.11 "Saporo Software Components" as necessary to perform the Services. In addition, where necessary to perform the Services, a connection to the Saporo cloud may be provided. Date noted in a specific work order as its start date. This date may be different from the Start Date. 

1.12 "Professional Services" excluding Support and Maintenance Services, all other services to be provided by Provider to Customer as detailed on a Work Order; 

1.13 "Specifications" the Customer's specific requirements for Professional Services and Deliverables as described in the Work Order and any related Change Orders; 

1.14 "Term" the period of this Agreement shall be one year from the Effective Date; 

1.15 "Work Order" a mutually agreed upon order setting out the details of the Professional Services in the form set out in Schedule 1;  

1.16 "Business Days" means any day other than a Saturday, Sunday or public holiday in Switzerland. 

1.17 "Affiliate" means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such Person. The term "control" (including, with correlative meaning, the terms "control", "controlled by" and "under common control with"), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether by ownership of voting securities, by contract or otherwise, including, for the avoidance of doubt, any corporation that is from time to time a holding company, subsidiary or affiliate of a holding company.

SECTION 2: PROVISION OF PROFESSIONAL SERVICES: SCOPE, SPECIFICATIONS, DELIVERABLES AND START DATE 

2.1 At any time during the term of the Agreement, the Customer may request Saporo to provide a proposal for the provision of Professional Services. If such a proposal is acceptable to the Customer, both parties shall agree upon a Work Order, in the form set forth in Schedule 1 attached to this Agreement, and the Customer shall provide Saporo with a Work Order for the agreed Work Order. 

2.2 Each work order shall detail the agreed upon specifications, deliverables, and the start date of the Professional Services. Each work order shall be subject to the terms and conditions of this Agreement. In the event of a conflict between the terms and conditions set forth in a Work Order (if any) and this Agreement, the terms and conditions of a Work Order shall govern for that Work Order only. The terms and conditions attached to a proposal, quote or purchase order do not apply to the provision of Professional Services under this Agreement. 

2.3 The Professional Services provided under a Work Order of this Agreement shall be assistance to Customer in the installation, implementation and configuration of Saporo's Software Components to meet Customer's particular business needs. Such professional services may include the use of Saporo's integration code to enable communication between Saporo's Software Components and third party software programs. Saporo's integration code may not be part of Saporo's standard software components, but all intellectual property rights in such code are and will remain the property of Saporo. When Saporo Integration Code is provided as part of a set of deliverables under a task order, Customer and its affiliates are granted a license to use such code for internal business purposes, but do not obtain any other rights to the Saporo Integration Code. 

SECTION 3: OBLIGATIONS OF SAPORO

3.1 Saporo shall manage and provide the Professional Services, and deliver the Deliverables to Customer, in accordance with any agreed upon and signed work order. 

3.2. If, in Saporo's opinion, Customer fails or is in danger of failing to comply with any of its obligations under this Agreement or any related Work Order, Saporo will notify Customer in writing with a request to perform such obligations. If Customer fails to remedy the situation within a reasonable time, Customer acknowledges that Saporo may not be able to perform its obligations under this Agreement or the particular related Work Order. 

SECTION 4: CUSTOMER OBLIGATIONS 

4.1 The success of the Professional Services is dependent upon the attentiveness and availability of Customer's personnel. 

4.2 Customer shall cooperate with Saporo in all matters relating to the Professional Services and shall appoint a Customer Professional Services Manager who shall be recorded in the relevant Work Order, who shall have the contractual authority to bind Customer on matters relating to the Professional Services; 

4.3 Customer shall provide access to Customer's premises and data, and such office and other facilities as may be reasonably requested by Saporo to enable the proper performance of the Professional Services; 

4.4 Customer shall provide such information as Saporo may reasonably request, in order to perform the Professional Services in a timely manner, in accordance with the Specifications noted in the relevant Work Order; and 

4.5 Customer shall inform Saporo of all health and safety rules and regulations and any other requirements that apply to any of its premises. 

All other services listed in Section 3 above shall be provided to Customer during Support Hours and Saporo agrees to use commercially reasonable efforts to maintain sufficient qualified personnel at all times to provide such services. 

SECTION 5: CHANGE REQUESTS 

5.1 If Client determines that additional Professional Services outside the scope of an executed Work Order are required, the Parties may agree in writing to an expansion of the scope. Such an expansion may result in additional lead time and/or fees. Such fees shall be determined by the Parties at the time the scope extension is agreed upon. 

5.2 If the additional Professional Services requested by Customer are not related to the Services in the Work Order being delivered at the time of the request, it may be more appropriate for the Parties to complete a new Work Order to record the specifications and deliverables applicable to the additional Professional Services. 

SECTION 6: CHARGES AND PAYMENT

6.1 All Professional Services will be provided on a time and materials basis at the rates set forth in the corresponding Work Order. Reasonable travel expenses of Saporo Professional Services personnel related to the Professional Services will be reimbursed by the Client. 

6.2 Fees payable for Professional Services shall be calculated in accordance with the rates set forth in the relevant Work Order for the work actually performed. 

6.3 Saporo's standard billable per diem rates for each individual person are calculated on the basis of an eight-hour day, normally worked between 9:00 a.m. and 5:00 p.m. on business days (unless otherwise agreed to in writing by the parties). 

6.4. Saporo will invoice the Client for expenses and related materials (and VAT where applicable) with the monthly invoice in arrears for Professional Services. Each invoice will indicate the time spent by each member of the Service Provider's team and will provide a detailed breakdown of all expenses and materials, along with corresponding receipts. 

6.5. Client shall pay invoices within 30 days of receipt. 

6.6. If Customer fails to pay any undisputed amount due from it under this Agreement, Saporo may charge Customer a collection fee plus interest on the past due amount from the due date until the date of actual payment. 

SECTION 7: SOFTWARE LICENSE AGREEMENT

7.1 During the term of the Service, Saporo Software Components may be installed by Saporo to perform the Service.

7.2 The Saporo Software Components are provided for service or evaluation purposes. 

7.3 Any use of the Saporo Software Components, and any technical support and maintenance provided for such use, shall be governed by the Saporo End User License Agreement (the "EULA") attached hereto.

SECTION 8: PROVISION OF PROFESSIONAL SERVICES

8.1 The Service will be performed both on-site and remotely if the appropriate secure technical connection is provided (recommended). 

8.2 In order to optimally perform the Professional Services, Customer must provide Saporo with a secure remote access connection to the Saporo console installed in Customer's environment for the duration of the Professional Services. 

SECTION 9: CONFIDENTIALITY

9.1 The parties agree to treat the other party's Confidential Information and trade secrets as confidential; and not to disclose the other party's Confidential Information and trade secrets to any other person without the prior written consent of the owner. 

9.2 Neither party shall use the other party's Confidential Information received other than for the purposes of this Agreement. 

9.3 The non-disclosure agreement executed between the parties forms an integral part of this Agreement. 

SECTION 10: LIMITATION OF WARRANTY

10.1 The Professional Services will be provided to Customer in a professional manner. Any evaluation software used during the Professional Services will be covered by the warranties set forth in the EULA. 

10.2 Except as provided in this clause, Saporo makes no other warranties with respect to the Professional Services, whether express or implied, statutory or otherwise, and any other warranties are expressly excluded to the maximum extent permitted by law. 

10.3 With respect to the Service provided by Saporo, Customer shall promptly notify Saporo of any alleged breach of any warranty. Customer's sole and exclusive remedy for breach of warranty shall be, at Saporo's option, (i) re-performance of the service in question; or (ii) reimbursement of the portion of the fees paid to Saporo by Customer for such non-conforming professional or deliverable services. 

SECTION 11: LIMITATION OF LIABILITY

11.1 In the event that Saporo's software and/or professional services infringe upon the intellectual property rights of third parties, or in the event of gross negligence and/or criminal intent, Licensee shall not be held liable and Saporo's liability shall not be limited. In addition, should Saporo breach its confidentiality agreement with Licensee, Saporo may be liable for up to CHF 5,000,000. 

11.2 Saporo's total aggregate liability for all claims (except as described in Section 11.2) arising out of the performance of the Professional Services under this Agreement, whether in contract, tort or otherwise, shall be limited to the total Professional Services fees actually paid to Saporo by Client during the twelve (12) months preceding the date of the events giving rise to the claim. 

11. 3. In no event shall Saporo be liable for any indirect or consequential damages, including, but not limited to, the following: loss of use, business interruption, loss of actual or anticipated profits (including, but not limited to, loss of profits on contracts), loss of revenue, loss of use of money, loss of anticipated savings, loss of opportunity, loss of goodwill, loss of reputation, loss, damage or corruption of data, or indirect, special, incidental or consequential loss or damage of any kind, regardless of the form of action, whether in contract, tort (including, without limitation, negligence), strict liability or otherwise. This exclusion applies whether or not such losses were foreseeable. 

SECTION 12: APPLICABLE LAW AND JURISDICTION

This agreement is governed by the laws of Switzerland. Any dispute relating to this agreement shall be subject to the exclusive jurisdiction of the ordinary courts of the Canton of Vaud, Switzerland. 

SECTION 13: TERMINATION

13.1 The Customer may terminate this Agreement if the Licensor fails to comply with the terms of this Agreement. The Licensee may terminate this Agreement if the Licensor files for bankruptcy or becomes insolvent. 

13.2 Customer's rights shall automatically terminate without notice if Customer fails to comply with any of the terms of this Agreement, including, but not limited to, non-payment of royalties in accordance with Section 6 above. 

13.3 Upon termination of the Professional Services, Customer will cease all use of the Products and destroy all copies, complete or partial, of the Products. Licensee shall remain the sole owner of the hard drive(s) used during use of the Product to store data processed by the Saporo Product and Saporo shall have no ownership rights in such hard drive(s). Licensee shall be free to retain or destroy the hard drive(s) as it sees fit.