Enterprise Services Agreement

1. Definitions.

2. Services.Customer may use and access the Services listed in the Order in accordance with this Agreement. Certain Service Level Agreements or descriptions of the Services may apply to certain Services, if listed in the Order. Notwithstanding the foregoing, Sucuri solely warrants that the Services will be provided at the levels noted in any applicable Service Level Agreement. Customer’s sole and exclusive remedy with respect to such warranty, as well as for any interruption, suspension, failure, defect, impairment or inadequacy of the Services, is as specified in the Service Level Agreement. In providing the Services, Sucuri may, in its sole discretion, utilize third parties.

3. Fees and Payments. Customer will be responsible for payment of all fees and charges for the Services as specified in the Order. Regardless of actual usage of the Services, any and all payment obligations are non-cancelable and all fees paid are non-refundable. Customer shall pay invoices within thirty (30) days of the invoice date, unless otherwise outlined in the Order, and without offsets, withholdings or deductions of any kind. Payment must be in U.S. dollars. If payment is not received by the payment due date, Sucuri may charge Customer a late payment interest charge of the lesser of 1.5% per month or the maximum rate allowed by law, plus all expenses of collection. Additionally, Sucuri reserves the right to suspend or terminate use and access to the Services if Customer’s account becomes delinquent. All fees and charges are exclusive of all taxes, levies or duties imposed by applicable taxing authorities.

4. Customer Responsibilities.

5. Data Protection and Security. The Sucuri Data Processing Addendum (“DPA”), located at https://sucuri.net/dpa, applies when Customer Data (as defined by the DPA) is processed by Sucuri. Customer Data, for the purpose of this Section, excludes any Customer Content. For the purposes of the DPA and the Standard Contractual Clauses attached to the DPA (when and as applicable), Customer (and Customer’s applicable Affiliates) are considered the Data Controller/Data Exporter, and acceptance of this Agreement will be treated as an acknowledgement and acceptance of the DPA and its appendices (including the Standard Contractual Clauses and its appendices, as applicable).

6. Confidentiality. This Section will apply if the Parties are not subject to an active non-disclosure agreement that would govern the disclosure of Confidential Information with respect to the Services. “Confidential Information” means all non-public information that a receiving Party knows or should reasonably know is confidential or proprietary. Confidential Information includes, but is not limited to, this Agreement, any Order, pricing and any Service Level Agreement; any information concerning a disclosing Party’s operations, methods of doing business, technologies, technical designs, research and development, know how, trade secrets, software source code, computer programs, algorithms, technical specifications and data, testing and bench-marking procedures and results, customers, personnel, financial information and other confidential or proprietary information belonging to or provided by or on behalf of the disclosing Party

Confidential Information does not include Customer Content or any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to a Party at the time of its receipt from the other Party; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed without reference to the Confidential Information.

Neither Party will disclose, use, modify, copy, reproduce or otherwise divulge Confidential Information of the other, except as required by law or in furtherance of the Services and this Agreement. Each Party will take reasonable measures to avoid disclosure, dissemination or unauthorized use of Confidential Information, including, at a minimum, those measures taken to protect your own Confidential Information of a similar nature. Because of the unique and proprietary nature of the Confidential Information, it is understood and agreed that remedies at law for a breach of the obligations under this Section may be inadequate and that the owner of Confidential Information will be entitled to equitable relief (including without limitation provisional and permanent injunctive relief and specific performance) without the requirement to post any bond in addition to any other remedies.

7. Term and Termination.

8. Modification. No amendment, modification, extension, release, discharge or waiver of this Agreement, or any provision hereof, shall be valid or binding unless in writing and signed by a duly authorized representative of each Party. Notwithstanding the foregoing, Sucuri may, in its sole and absolute discretion, change or modify: (i) the basis for calculating fees and other changes with respect to the Services; or (ii) the features, functionality and other aspects of a Service. Sucuri further reserves the right to amend any of the policies which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon posting to the Site. Your use of this Site or the Services after changes or modifications to such policies have been made constitutes your acceptance changes, revisions or modifications.

9. Ownership and Licenses in Sucuri Sites, Services, and Materials. Expect with regard to Customer Content, Sucuri retains exclusive ownership and all rights, title and interest in the sites, the Service and the Sucuri materials. Customer must not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Sucuri sites, the Service or the Sucuri materials. Other trademarks, service marks and trade names that may appear on the Sites or in connection with the Service are the property of their respective owners.

10. Ownership and Licenses in Customer Content. Customer shall retain ownership of all right, title and interest in and to Customer Content that Customer makes available to Sucuri in connection with the Services. Customer Content will not be deemed part of any Services by virtue of being located on or served from Sucuri servers. Customer hereby grants Sucuri a worldwide, irrevocable, royalty-free, nonexclusive license to use Customer Content as part of the Services, without any compensation or obligation to you. Sucuri reserves the right to not use or publish Customer Content, and to remove or edit any Customer Content, at any time in its sole discretion without notice or liability.

Notwithstanding anything to the contrary, Sucuri shall have the right to collect and analyze data relating to the use and performance of the Services, and may (i) use such data (during and after the term of this Agreement) to improve and enhance the Services, and (ii) disclose such data in aggregate or other de-identified form in connection with its business, provided that such data does not include personally identifiable information and/or identify Customer. Sucuri reserves all rights not expressly granted in this Agreement.

11. Disclaimer of Representations and Warranties. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES ARE PROVIDED “AS IS,” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT THAT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED AND AS SPECIFICALLY PROVIDED IN SECTION 2. EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED), PAST OR PRESENT, STATUTORY OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGMENT, OR SECURITY. CUSTOMER ACKNOWLEDGES THAT SUCURI DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE

WITHOUT LIMITING THE FOREGOING, SUCURI DOES NOT WARRANT THAT THE SERVICES ARE COMPLETE, WILL BE ERROR FREE, UNINTERRUPTED, WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT SUCURI WILL BE ABLE TO DETECT, REMOVE OR CLEAN ALL, OR ANY, MALICIOUS OR UNWANTED APPLICATIONS AND FILES. THIS DISCLAIMER AND EXCLUSION APPLIES EVEN IF AN EXPRESS WARRANTY OR THE LIMITED REMEDY SET FORTH IN SECTION 2, OR ELSEWHERE, FAILS ITS ESSENTIAL PURPOSE.

12. Sucuri Indemnity. Sucuri shall indemnify, defend and hold harmless Customer from and against any and all claims, liabilities, judgments, awards, losses, damages, costs and expenses (including, but not limited to, reasonable attorneys’ fees), and fines imposed by governmental or regulatory or any other authorities, arising from any third party claims based on allegations that the Services directly infringe an issued patent or other intellectual property right under the laws of a country in which such Services are actually provided to Customer. Notwithstanding the previous sentence, Sucuri will have no such obligations hereunder if the alleged infringement would not have occurred but for: (i) the use of the Services in conjunction or combination with one or more products or services not provided by Sucuri to the Customer; (ii) the use of the Services or software in a fashion other than in accordance with the applicable Sucuri documentation or specifications; and (iii) the use of other than the latest available version of the Services made available to Customer thirty (30) days after being notified by Sucuri to update its version.

To qualify for such indemnification, the Customer must: (i) give Sucuri prompt written notice of any such claim no later than thirty (30) days after Customer learns of it; and (ii) allow Sucuri to full control and authority over the defense, and fully cooperate and assist Sucuri in, the defense and all related settlement negotiations. Sucuri may settle any claims without prior Customer consent, however, Customer has the right to approve any non-monetary settlement that places an obligation on Customer other than the obligation to cease using the affected Services.

Upon notice of an alleged infringement, or if, in Sucuri’s opinion, such a claim is likely, Sucuri shall have the right, at its option, either: (i) to obtain the right to continue the provisions of the Services; or (ii) replace or modify the alleged infringing Services to make them non-infringing, while maintaining similar operating capabilities and/or performance. After considering thoroughly such foregoing options, Sucuri may immediately terminate this Agreement or any outstanding Order with respect to the allegedly infringing Services. In the event of such termination, Customer may as its sole and exclusive remedy obtain a refund from Sucuri of the fees paid for unused Services subscriptions. Customer may participate in the defense with its own counsel and at its own expense.

13. Customer Indemnity. Customer shall indemnify, defend and hold harmless Sucuri, its affiliates and subsidiaries, and each of their respective officers, directors, shareholders, members, managers, employees, independent contractors, agents, and representatives from and against any and all claims, liabilities, judgments, awards, losses, damages, costs and expenses (including, but not limited to, reasonable attorneys’ fees), and fines imposed by governmental, regulatory or any other authorities, arising from or relating to any claims relating to any Customer Content, operation of Customer’s websites (including any activities or aspect of commerce conducted thereon), breach by Customer of Section 2, breach by Customer of the representations, warranties and covenants contained in Section 4 or any violation of applicable law, rule or regulation by Customer.

To qualify for such indemnification, Sucuri must: (i) give Customer prompt written notice of any such claim no later than thirty (30) days after Sucuri learns of it; and (ii) allow Customer to control, and fully cooperate and assist Customer in, the defense and all related settlement negotiations Notwithstanding this ability to settle, Sucuri shall not be subject to any settlement made without its consent that requires an admission of liability, a payment by Sucuri, or any non-monetary settlement that places an obligation on Sucuri. Sucuri will have the right to control the defense if Customer does not give written notice within thirty (30) days from the date it receives notice from Sucuri of the claim that it will assume that defense. Sucuri may participate in the defense with its own counsel and at its own expense.

14. Limitation of Liability. EXCEPT FOR EACH PARTY’S CONFIDENTIALITY OBLIGATIONS AND TO THE FULLEST EXTENT PERMISSIBLE BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, BUSINESS INTERRUPTION, REPLACEMENT SERVICES, OPPORTUNITIES, GOODWILL, USE, DATA OR CUSTOMER CONTENT), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY.

WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMISSIBLE BY LAW, LIABILITY FOR ALL CLAIMS ARISING HEREUNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO SUCURI UNDER THE APPLICABLE ORDER DURING THE SIX MONTHS PRECEDING THE CLAIM. THE IMMEDIATELY PRECEDING SENTENCE DOES NOT APPLY TO EITHER PARTY’S CONFIDENTIALITY OR INDEMNITY OBLIGATIONS, OR CUSTOMERS OBLIGATIONS UNDER SECTION 3, 4.1, and 4.2.

15. Marketing. During the Term, each Party may use the other’s name, trade name, logo or marks, subject to the other’s reasonable branding guidelines, to refer publicly to the other as a customer/vendor solely in connection with the Services. Customer may opt out of such use at any time by notifying Sucuri at legal@godaddy.com.

Any other use of a Party’s name, trade name, logo or marks requires prior written consent. Each Party retains exclusive ownership of its trademarks and service marks. All rights not expressly granted herein are reserved and remain the sole and exclusive property of the Party who supplied or developed such rights.

16. Governing Law and Venue. This Agreement, Order, and any applicable Service Level Agreement shall be governed by and construed in accordance with the internal laws of the State of Arizona, without regard to any choice of law rule that would cause the application of the laws of any other jurisdiction. All actions, disputes and controversies relating to or arising out of this Agreement, Order or any applicable Service Level Agreement shall be resolved exclusively in the state or federal courts located in Maricopa County, Arizona.

17. Notice. Any notice, request, demand, or other communication required or permitted under this Agreement must be given in writing to the authorized person for such party listed on the Order. Notice will be deemed given only upon receipt. If to Sucuri, notice must also be sent to Company’s primary contact at Sucuri with a copy to legal@godaddy.com. A Party may change its address only by notifying the other Party in writing in accordance with this provision.

18. Assignment, Successors. Customer may not assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of Sucuri. This Agreement shall be binding on and inure to the benefit of the successors and permitted assigns of the Parties. Any attempted assignment or transfer in violation of this Section 18 shall be null and void.

19. Amendments Any term of the Agreement, Order, or an applicable Service Level Agreement may only be amended, modified or waived by a subsequent written agreement signed by both Parties. Any term of the Data Protection Addendum, Acceptable Use Policy or any other policies incorporated herein may be amended or modified as set forth in Section 8 (Modification) or in a written agreement signed by both Parties.

20. Severability. If any portion or provision of this Agreement, Order, or Service Level Agreement is determined or held to be invalid, illegal or unenforceable under any applicable law in any jurisdiction, the remaining portions and provisions of this Agreement will remain in full force and effect. In such instance, this Agreement, Order or Service Level Agreement, as appropriate, will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision is limited or excluded to the minimum extent required so that this Agreement shall otherwise remain in full force and effect and enforceable.

21. Conflicting Terms. If the terms of this Agreement, the Order or Service Level Agreement conflict in any manner, the controlling priority of the agreements will be as follows: the Order, the Service Level Agreement, this Agreement, and then the Acceptable Use Policy.

22. Survival. Sections 1 (Definitions), 3 (Fees and Payments), 4 (Customer Responsibility), 6 (Confidentiality), 7.2 (Termination), 10 (Ownership and Licenses in Sucuri Sites, Services, and Materials), 11 (Disclaimer of Representations and Warranties), 12 (Sucuri Indemnity), 13 (Customer Indemnity), 14 (Limitation of Liability), 16 (Governing Law and Venue), 17 (Notice), 19 (Severability), 22 (Attorney’s Fees), 23 Relationship of Parties), 24 (Force Majeure), and 27 (Entire Agreement) will survive any termination or expiration of this Agreement.

23. Attorney’s Fees. In any action, at law or in equity or proceeding to enforce or interpret any of the terms of this Agreement, the prevailing Party will be entitled to recover costs, reasonable attorney’s fees and necessary disbursements, in addition to any other relief that such Party may be entitled.

24. Relationship of the Parties. For all purposes of this Agreement each Party shall be and act as an independent contractor and this Agreement will not be construed as a partnership, joint venture, agency, or employment relationship. Nothing in this Agreement will constitute a Party as a legal representative or agent of the other Party, nor will a Party have the right or authority to assume, create or incur any liability or any obligation of any kind, express or implied, against or in the name or on behalf of the other Party or its related entities.

25. Force Majeure. Sucuri will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond Sucuri’s reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, destruction or extensive damage of factories, colocation centers, or company headquarters, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism or war.

26. Titles and Headings. The titles, headings and subtitles used in this Agreement are for convenience and ease of reference only and are not to be utilized in any way to construe or interpret the agreement of the Parties as otherwise set forth herein.

27. Counterparts. This Agreement and any Order may be executed in two or more counterparts, including by electronic mail, each of which will be deemed an original, but all of which together shall constitute one and the same agreement.

28. Entire Agreement. This Agreement, the Order, any Service Level Agreement, and any Exhibits or Policies incorporated herein, contain the entire agreement and understanding of the Parties and supersedes all negotiations and understandings between the Parties regarding the subject matter hereof.