Software License and Support Terms
The Software License Terms contained herein (the "License Terms") shall apply to all quotations made and purchase orders accepted by ScalArc, Inc. (DBA"ScaleArc" and referred to herein as "ScaleArc" or the "Company") with respect to the license of ScaleArc software (the "Product") to the customer ("Customer" or "Licensee") identified on the form to which these License Terms are attached. ScaleArc’s acceptance of the purchase order, invoice or sales acknowledgement to which these License Terms are attached ("Order Form") is conditioned upon Customer’s consent to these License Terms.
The License Terms constitute a legal agreement between Customer and ScaleArc. By clicking the "I Accept" or "I Agree" button and/or installing and using the Product, Customer accepts the Product and agrees to the terms of this agreement. Read it carefully before completing the installation process and using the Product. By installing and/or using the Product, Customer is confirming acceptance of the Product and agreeing to become bound by the terms of this agreement. If Customer does not agree to be bound by these terms, or the person or entity installing and/or using the Product does not have authority to bind Customer to the License Terms, then do not install and/or use the Product.
- Grant of License and Restrictions. Subject to the License Terms and payment of all fees as provided on the Order Form, Company grants Customer a nonsublicensable, nonexclusive right to use the Product strictly in accordance with the related user documentation and specification sheets (collectively the "Documentation") and any terms and procedures Licensor may prescribe from time to time. The Product shall be provided to Customer as a term-based license. Customer may possess only the number of copies of any Product set forth in the Order Form and only in accordance with the License Terms. Company retains ownership of all Products and copies. Customer will maintain the copyright notice and any other notices that appear on the Product on any copies and any media. Customer will not (and will not allow any third party to) (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any Product (except to the extent that applicable law prohibits reverse engineering restrictions), (ii) provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use a Product for the benefit of any third party, or (iii) use any Product, or allow the transfer, transmission, export, or re-export of any Product or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency. All the limitations and restrictions on Products in these License Terms also apply to the Documentation.
- Customer Support and Maintenance. While the license for a particular Product remains effective and the applicable Support Services Fee has been paid, Company will use reasonable commercial efforts to provide the support and maintenance services for that Product as described in Exhibit A (“Support Services”), subject to Section 3.
- Fees and Payment. Customer shall pay Company the License Fee set forth in the Order Form in accordance with the terms set forth therein. Customer shall also promptly pay any applicable Support Services Fees as and when specified in the Order Form; provided that Company may elect on sixty (60) days notice effective on any Support Services Fee payment date with respect to a Product, to change the Support Services Fee and Support Services terms for that Product to its then standard fees and terms. All payments shall be made inside the U.S., in U.S. dollars. Any payments more than thirty (30) days overdue will bear a late payment fee of 1.5% per month, or, if lower, the maximum rate allowed by law. In addition, Customer will pay all taxes, shipping, duties, withholdings and the like, as well as all out of pocket expenses incurred by Company in connection with consulting and/or Support Services, promptly upon invoice. Customer will maintain, and Company will be entitled to audit, any records relevant to Company’s use of the Products hereunder; Company may audit such records on reasonable notice at Company’s cost (or if the audits reveal material non-compliance with these License Terms, at Customer’s cost).
- Term and Termination. This Agreement will continue in effect for the Term as specified in the Order Form. Upon expiration of a 3-year Term, if Customer chooses not to renew the Term, Customer may continue to use the Product under license but ScaleArc in such case shall have no obligation to provide Support Services. If either party materially breaches this Agreement, the other party shall have the right to terminate this Agreement (and all licenses) upon thirty days (ten in the case of non-payment and immediately in the case of a breach of Section 1) written notice of any such breach, unless such breach is during such notice period. Upon termination, Customer shall immediately cease all use of all affected Products and return or destroy all copies of all affected Products and all portions thereof and so certify to Company. Except as otherwise expressly provided herein, the terms of the Agreement shall survive termination. Termination is not an exclusive remedy and all other remedies will be available whether or not termination occurs.
- Indemnification. Company shall hold Customer harmless from liability to third parties resulting from infringement by a Product of any United States patent or copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to a Product or portions or components thereof (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer's use of such Product is not strictly in accordance with this Agreement. Customer will indemnify Company from all damages, settlements, attorneys' fees and expenses related to (i) any claim of infringement or misappropriation excluded from Company's indemnity obligation by the preceding sentence, or (ii) any other claim in connection with the Product or the use thereof.
- Limited Warranty and Disclaimer. Company warrants for a period of thirty (30) days from Customer’s first acquisition of a Product that such Product will materially conform to Company’s then current Documentation for such Product. This warranty covers only problems reported to Company during the warranty period. ANY LIABILITY OF COMPANY WITH RESPECT TO A PRODUCT OR THE PERFORMANCE THEREOF UNDER ANY WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY WILL BE LIMITED EXCLUSIVELY TO PRODUCT REPAIR OR REPLACEMENT OR, IF, IN COMPANY’S OPINION, REPAIR OR REPLACEMENT IS IMPRACTICAL, TO REFUND OF THE LICENSE FEE. EXCEPT FOR THE FOREGOING, ALL PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FURTHER, COMPANY DOES NOT WARRANT RESULTS OF USE OF THAT THE PRODUCTS ARE BUG FREE OR THAT THEIR USE WILL BE UNINTERRUPTED.
- Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, COMPANY SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE LICENSE FEES PAID TO IT HEREUNDER WITH RESPECT TO THE APPLICABLE PRODUCT DURING THE SIX MONTH PERIOD PRIOR TO THE CAUSE OF ACTION; OR (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (III) FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES; (IV) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (V) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
- Confidentiality. Any technical, financial, business or other information provided by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) and designated as confidential or proprietary (“Confidential Information”) shall be held in confidence and not disclosed and shall not be used except to the extent necessary to carry out the Receiving Party’s obligations or express rights hereunder. For clarity, the Products and related Documentation and information shall be deemed Confidential Information of Company whether or not otherwise designated as such. This obligation will not apply to information that (i) is generally and freely publicly available through no fault of the Receiving Party, (ii) the Receiving Party otherwise rightfully obtains from third parties without restriction, or (iii) is independently developed by employees of the Receiving Party with no knowledge of or access to the Confidential Information.
- U.S. Government Restricted Rights. If any Product is used or accessed by or on behalf of the United States government, such use or access is subject to the following provision. The Products and any related Documentation are deemed "commercial computer software" and "commercial computer software documentation," respectively, within the meaning of the applicable civilian and military Federal acquisition regulations and any supplement thereto. If the user of the Product is an agency, department, employee, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Products, including technical data, manuals or other accompanying documentation, is restricted in accordance with Federal Acquisition Regulation (“FAR”) 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7202 for military agencies and use of the Product by any Government agency, department or other agency of the Government is further restricted as set forth in this Agreement.
- Miscellaneous. Neither the Agreement nor the licenses granted hereunder are assignable or transferable by Customer without the prior written consent of Company; any attempt to do so shall be void. Company may assign this Agreement in whole or in part. Any notice, report, approval or consent required or permitted hereunder shall be in writing. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Any waivers or amendments shall be effective only if made in writing. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. In the event of a conflict between this Agreement and the terms of an Order Form or price quotation, the terms of this Agreement shall govern. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorney’s fees and costs in connection with such action. Customer represents that it is not a government agency and it is not acquiring the license pursuant to a government contract or with government funds.
SUPPORT SERVICES TERMS AND CONDITIONS
Capitalized terms not defined in these Support Services Terms and Conditions ("Support Terms") shall have the same meaning as in the License Terms. Company is obligated under this Exhibit A only with respect to the Product specified in the Order Form.
THE TERMS AND CONDITIONS SET FORTH HEREIN CONSTITUTE THE ENTIRE AGREEMENT BETWEEN SCALEARC AND CUSTOMER RELATING TO SCALEARC'S SUPPORT SERVICES. SCALEARC SHALL NOT BE BOUND BY ANY TERMS OR CONDITIONS OF CUSTOMER’S ORDER FOR SUPPORT OR ANY OTHER DOCUMENT. ANY ACCEPTANCE BY SCALEARC OF CUSTOMER’S ORDER FOR SUPPORT SERVICES IS EXPRESSLY CONDITIONED ON ASSENT BY CUSTOMER TO THE TERMS OF THIS AGREEMENT AND THE EXCLUSION OF ALL OTHER TERMS EXCEPT AS MAY BE SET FORTH IN A WRITTEN AGREEMENT SIGNED BY SCALEARC AND CUSTOMER EXPRESSLY SUPERSEDING THESE TERMS. CUSTOMER SHALL BE DEEMED TO HAVE ASSENTED TO THE TERMS OF THIS AGREEMENT UPON ACCEPTING DELIVERY OF ANY PRODUCT FROM SCALEARC SUBJECT TO THE SUPPORT SERVICES DESCRIBED HEREIN. IF TENDER OF THESE TERMS IS DEEMED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THE TERMS HEREOF.
- "Business Day" means the applicable days during which ScaleArc customer support is available as specified in Section 2.2 below.
- "Business Hours" means the applicable hours during which ScaleArc customer support is available as specified in Section 2.2 below.
- "Error" means a material failure of the Software as properly implemented and operated by Customer to perform in accordance with the Specifications.
- "Escalation" means an Error that Customer refers to ScaleArc for Resolution.
- "Level 1 Support Services" means response to customer calls regarding Errors or other issues with the Software.
- "Level 2 Support Services" means response to technical support calls from Customer technical support personnel to reproduce and Resolve an Error, Resolution of which does not require source code modification.
- "Level 3 Support Services" means efforts to reproduce and Resolve an Error, Resolution of which may require source code modification, including but not limited to remote support through telephone, e-mail, facsimile and/or other reliable means of communication, and on-site support.
- "Major Release" means a new release of the Software, which is made generally available, that incorporates the last Maintenance Release(s) (if any) and may include additional enhancements to the Software. Major Releases may include architectural changes and major feature changes, as well as new features and functionality. Major Releases are designated by the first number of the product version (i.e. version 2 would be 2.0).
- "Maintenance Release" means an Update or an Upgrade provided to Customer by ScaleArc.
- "New Product" means a new Software release that ScaleArc markets as a new product not already licensed to Customer. Such New Product may contain some of the same functionality as the Software currently licensed to Customer but may also contain new or additional functionality. Designation of Software as a New Product will be made by ScaleArc in its sole discretion.
- "Severity 1 – Major Impact" means the Software is inoperable or the performance of the Software is so severely reduced that Customer cannot reasonably continue to operate the Software because of the Error and the Error cannot be circumvented with a Workaround.
- "Severity 2 – Moderate Impact" means the Software’s performance is significantly degraded such that Customer’s use of the Software as permitted is materially impaired. The Error may or may not be circumvented with a Workaround, but the Workaround is not acceptable as a long-term resolution.
- "Severity 3 – Minor Impact" means Customer is experiencing a performance, operational, or functional Error that can be circumvented with a Workaround and the Error causes only minimal impact to the Customer’s ability to use the Software as authorized.
- "Severity 4 – Cosmetic Defect" means the problem is purely cosmetic and not easily recognizable by the Customer, and does not affect normal operations of Software.
- "Severity 5 – Feature Enhancement" means a Feature Enhancement request or design issue for consideration by ScaleArc for the Software.
- "Resolution” or “Resolve" means resolving an Error in accordance with this Exhibit. A Workaround is not a Resolution.
- "ScaleArc's Action Plan" means a plan to Resolve an Escalation prepared by ScaleArc that contains the following information: (i) a statement of the Error, including early evaluation; (ii) confirmation, when possible, that ScaleArc has reproduced the Error; (iii) status of the Error; (iv) actions required to Resolve the Escalation; (v) party responsible for performing such actions; (vi) when such actions are expected to occur and when they are expected to be completed (i.e., an estimate of how long it will take to Resolve the Escalation); and (vii) projected date for Resolution, if possible.
- "Software" means the ScaleArc-proprietary software that Customer has licensed from ScaleArc.
- "Specifications" means the specifications for the Software provided in writing by ScaleArc as part of the Documentation for the Software.
- "Support Services" means the support services provided by ScaleArc which shall include bug fixes, severity base support with a predetermined average response time for clarifications, issues and Workarounds, and the provision of new Versions.
- "Update" means a new release of the Software made generally available by ScaleArc to its customers that contains bug fixes and minor modifications or enhancements, but not containing any significant new features or functionality, as determined by ScaleArc in its sole discretion.
- "Upgrade" means a new release of the Software made generally available by ScaleArc to its customers that contains some modifications or enhancements to performance or functionality that exists in the current release of the Software, but does not typically contain any new or additional functionality. Designation of a release as an Upgrade shall be made by ScaleArc in its sole discretion.
- "Version" means an Update or Upgrade to the Software, but does not include New Products.
- "Workaround" means a temporary solution to an Error that allows the customer to continue to use the Software until a Resolution is completed. A Workaround may consist of specific administrative steps or alternative programming calls.
ScaleArc's Software Support Obligations.
- Support Requests. Customer shall have access to an e-mail reporting service through which support requests are logged and Ticket (ID) is issued. This service can be reached at firstname.lastname@example.org.
- Customer may call the Customer support call center (the "Customer Support"), as specified below.
- Designated Support Contact. ScaleArc shall designate at least one “Designated Support Contact” and at least one “Alternate” to receive Escalations from Customer, and shall provide Customer with written notice of the names of and contact information for such individuals. ScaleArc shall give Customer written notice of any changes in ScaleArc’s Designated Support Contacts and Alternates after ScaleArc decides to make a change.
- Purchases Through Reseller. In the event Customer has purchased the Products through a Reseller, Customer will be entitled to all the rights herein set forth related to the Support Services requested and paid for by Customer.
- Support Services. ScaleArc shall provide Support Services in accordance with the terms of this Agreement and as per the Support Model set forth in Schedule I hereto.
- Conditions for Providing Support: ScaleArc’s obligation to provide support services is conditioned upon the following:
- Customer providing ScaleArc with sufficient information and resources to correct the problem either at ScaleArc’s Customer Support Center or via dial-up access at Customer’s Site (including without limitation remote desktop or SSL VPN access to the physical servers on which the ScaleArc Software is installed along with full administrative privileges), and access to the personnel, hardware, and any additional software involved in discovering the problem;
- Customer promptly installing all the Maintenance Releases; and
- Customer procuring, installing and maintaining all equipment, telephone lines, communication interfaces and other hardware necessary to operate the Software.
- Customer Responsibilities. Customer shall open new cases/calls with proper contact information, and shall be responsible for the following tasks:
- In Severity 1 – Major Impact cases, Customer shall immediately inform ScaleArc of the Software issues by reporting them to the ScaleArc’s Customer Support Center;
- In all other cases, Customer shall isolate any informational, configuration, development and parameter type cases, or, on potential Software issues, identify and capture logs, error messages and reproducible test cases; and
- Customer shall provide Internet-based access to the test environment and as per Customer’s security policy, provide access to production databases and systems, and shall maintain active support from applicable vendors for all hardware and software not provided by ScaleArc.
Software Remediation Process.
- Reporting. Prior to requesting support from ScaleArc, Customer will use reasonable efforts to comply with all applicable operating and troubleshooting procedures, as posted on a designated ScaleArc website or as otherwise provided by ScaleArc in the Documentation. If such efforts are unsuccessful in eliminating the Error and Customer confirms that an Error is being caused by the Software, qualified Customer technical support personnel should promptly notify ScaleArc by e-mail, telephone, facsimile or other reliable means of communication of the Error. The initial notification will include a detailed description of the Error being escalated together with any supporting information that Customer believes may assist ScaleArc in its diagnostic process. In its report, Customer will also include its estimate of the Priority Level of the Error it is reporting. The designation of Priority Level is subject to confirmation by ScaleArc after initial review of the Error reported.
- Resolution. ScaleArc’s Resolution to the Escalation will include the following:
- Resolution Testing. ScaleArc will test Resolutions according to ScaleArc’s standard business practices.
- Patch Delivery. At no additional charge to Customer, ScaleArc shall provide all patches to Customer as soon as they are available in Customer’s standard format for duplication and distribution. ScaleArc shall provide patches on-line whenever possible. Whenever possible, ScaleArc shall provide Customer with a test case or test procedure used to verify all patches.
- Redirection. In the event that ScaleArc reasonably determines that the Escalation is not an Error in the Software, ScaleArc will promptly provide Customer with a detailed explanation so the Escalation can be properly redirected within Customer.
- Support Services do not cover resolution of problems which result from (i) hardware or software not developed and provided to Customer by ScaleArc or its contractors; (ii) modifications of the Products by any individual or entity other than ScaleArc or its contractors without ScaleArc’s prior written approval; or (iii) use of the Products by Customer which is not in accordance with the Documentation.
- ScaleArc will only support its Products on platforms for which all components are supported by their respective vendors, under standard conditions, at the date the support request is made by Customer to ScaleArc. The list of platforms on which each release of the product is available is decided by ScaleArc alone. ScaleArc will only provide support on platforms designated in the Documentation, or compatible with them; provided, however, that ScaleArc will provide at least one hundred and eighty (180) days prior written notice if ScaleArc will discontinue support of the Software on any platform.
- ScaleArc does not commit to modifying the Products to work around the dysfunction or limitation of third party software or hardware.
Software Maintenance. So long as Customer continues to purchase Support Services under the Agreement, ScaleArc will make each new Version of the Software available to the Customer, thus incorporating the new Version into this Agreement. Customer acknowledges and agrees that: (i) determination of whether the Software developed by ScaleArc is an Upgrade or a New Product shall be in the sole discretion of ScaleArc; and (ii) New Products are not covered or in any manner included under the terms and conditions of this Agreement.
Major Release Support Policy. ScaleArc will provide Support Services for up to two active Major Releases at any given period of time, the current and immediately prior Major Releases. ScaleArc will provide Support Services for a Major Release until the next Major Release occurs (e.g., version 2.0 receives full Support Services until version 3.0 is released), after which time the previous Major Release will enter a period of limited Support Services. During the period of limited Support Services, ScaleArc will provide a Resolution for Severity 1 and Severity 2 Errors, provided that Customer has installed all patches available to the Major Release. At ScaleArc's sole discretion, however, a Workaround may be provided for Severity 3 Errors. ScaleArc will provide at least one hundred eighty (180) days prior written notice to Customer that Support Services will end for any Major Release that is two versions or more behind the current Major Release (e.g., once version 4.0 is released, Support Services for version 2.0 will end).
- Term. These Support Services terms are in effect for the period specified in the Order Form. Customer may continue to purchase Support Services for additional periods, unless ScaleArc has elected to no longer support the Products for which Support Services are requested, and has provided notification of such to Customer at least ninety (90) days before expiration of the existing Support Services period.
- Termination. Either party may terminate the Support Services in the event that the other party materially breaches its obligations hereunder and fails to cure such breach within thirty (30) days following receipt of written notice thereof. Upon any such termination, the Customer shall return or destroy all copies of any confidential information of ScaleArc.