CLOUDIAN TECHNICAL SUPPORT TERMS
These Cloudian Technical Support Terms (these “Support Terms”) apply to end user technical support purchased by a company (“Licensee”) directly from Cloudian, Inc. (“Cloudian”) to cover Cloudian products acquired by such company. These Support Terms do not apply to any technical support purchased from a Cloudian reseller or distributor or from any other third party.
1.1 “Supported Product” means any Cloudian product for which Licensee has purchased end user technical support directly from Cloudian. “Cloudian Software Product” means any Supported Product that is a software-only product (with no hardware), and “Cloudian Appliance Product” means any Supported Product that is an appliance product.
1.2 “Cloudian Software” means, collectively, (a) the Cloudian Software Products, (b) all software installed on Cloudian Appliance Products at the time they are originally delivered to Licensee, (c) all other software provided by Cloudian to Licensee for use with Cloudian Appliance Products, and (d) any corrections, updates and upgrades to any of the foregoing that Cloudian may provide to Licensee.
2. TECHNICAL SUPPORT
2.1 Support Services. Cloudian will provide Licensee with the end user technical support set forth in Exhibit A (“Technical Support”) during the periods for which Licensee purchases end user technical support from Cloudian. Technical Support is included in the subscription fee for any Cloudian Software Product to which Licensee obtains a subscription license.
2.2 Support Contacts. Licensee will name at least one individual, and up to four (4) individuals, who are authorized to use Cloudian technical support website (“Support Portal”), request Technical Support from Cloudian and act as the primary contact with Cloudian in connection therewith (“Authorized Support Contacts”). Licensee may designate replacement Authorized Support Contacts from time to time through the Support Portal. Only Authorized Support Contacts may request Technical Support from Cloudian.
2.3 Support Exclusions. Notwithstanding anything to the contrary, Cloudian will not obligated to provide Technical Support for a Supported Product in any of the following situations:
(a) the Supported Product or associated Cloudian Software has been changed, modified, or damaged (excluding modifications made by Cloudian);
(b) the need for technical support arises from: (i) failure of computer hardware, equipment, or software not supplied by Cloudian; (ii) the negligence of Licensee or any other third party; (iii) a cause or causes beyond the reasonable control of Cloudian; or (iv) attempted maintenance by unauthorized persons;
(c) the need for technical support arises from improper use of the Supported Product or associated Cloudian Software, or the from merging or combination of the Supported Product or associated Cloudian Software with any hardware or software not authorized by Cloudian to be so merged or combined;
(d) any software corrections, updates or upgrades provided by Cloudian have not been installed or implemented; or
(e) support fees, license fees or other amounts in connection with the Supported Product have not been paid to Cloudian when due.
3. COMPENSATION TO CLOUDIAN
3.1 Support Fees. Licensee will pay Cloudian the fees for Technical Support as agreed to by Licensee and Cloudian. If Licensee terminates, or does not renew, Technical Support for any Supported Product and subsequently requests reinstatement of Technical Support for such Supported Product, and Cloudian agrees to such request, then in addition to the fees for such reinstated Technical Support, Licensee will pay Cloudian a fee equal to the sum of (a) the fees that would have been payable to Cloudian if Licensee had purchased Technical Support for the period prior to such reinstatement for which Licensee did not purchase Technical Support from Cloudian, and (b) a reinstatement fee equal to Cloudian’s then-current list price for one year of Technical Support for such Supported Product.
3.2 Payment Terms. Except as otherwise agreed to by Cloudian and Licensee, the following terms will apply to all fees for Technical Support payable by Licensee to Cloudian.
(a) Licensee will pay fees within thirty (30) days of the date of Cloudian’s invoice to Licensee therefor; provided, however, that Cloudian may specify new payment terms if Licensee fails to pay any amount when due or if Cloudian determines it prudent to do so in light of Licensee’s credit profile or any changes thereto.
(b) Payments will be made by Licensee in U.S. dollars and remitted by wire transfer to such bank account as may be designated by Cloudian. Any amounts not paid when due will accrue interest at the rate of one and one-half percent (1.5%) per month from the due date until such amount is paid. All fees are non-refundable.
(c) No fees include any governmental taxes, duties, levies or other charges of any kind, including sales, use, value-added, excise, property, franchise, income or withholding taxes (collectively, “Taxes”). Licensee will pay all Taxes based on any transactions or payments under these Support Terms, other than taxes imposed or based on Cloudian’s net income. All fees will be paid without deduction or withholding for or on account of any present or future Taxes.
CLOUDIAN MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE TECHNICAL SUPPORT OR ANY OTHER ASPECTS OF THESE SUPPORT TERMS, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR NONINFRINGEMENT, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
5. LIMITATION OF LIABILITY
IN NO EVENT WILL CLOUDIAN BE LIABLE UNDER ANY LEGAL THEORY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, DATA OR BUSINESS, IN CONNECTION WITH THE TECHNICAL SUPPORT OR THESE SUPPORT TERMS, EVEN IF CLOUDIAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLOUDIAN’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE TECHNICAL SUPPORT AND THESE SUPPORT TERMS WITH RESPECT TO ANY SUPPORTED PRODUCT WILL NOT EXCEED THE TOTAL OF ALL SUPPORT FEES PAID BY LICENSEE TO CLOUDIAN FOR SUCH SUPPORTED PRODUCT. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
6.1 Termination. Either party may terminate Technical Support immediately upon written notice to the other party if the other party commits a material breach of these Support Terms and fails to remedy such breach within thirty (30) days after receipt of written notice specifying the occurrence or existence of such breach.
6.2 Effect of Termination. Upon any expiration or termination of Technical Support, all rights, licenses and obligations of the parties under this Agreement will immediately terminate, subject to the following:
(a) The rights and obligations of the parties under Sections 5, 6.2, and 7 will survive such expiration or termination of Technical Support, and the rights and obligations of the parties under Section 3 will survive such expiration or termination of Technical Support with respect to any unpaid fees.
(b) For avoidance of doubt, neither party will be relieved of any payment obligations or other liability incurred under these Support Terms prior to such expiration or termination of Technical Support.
7. GENERAL PROVISIONS
7.1 Force Majeure. Neither party will be responsible or have any liability for any delay or failure to perform any of its obligations under these Support Terms (excluding payment obligations) to the extent such failure is due to unforeseen circumstances or to causes beyond such party’s reasonable control, including acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, acts of terrorism, war, and acts of civil and military authorities.
7.2 Severability. If any provision of these Support Terms is declared or found by a court or arbitral panel of competent jurisdiction to be invalid, illegal or otherwise unenforceable, (a) the parties will negotiate, in good faith, a substitute, valid and enforceable provision which most nearly effects the parties’ intent in entering into these Support Terms, and (b) the remainder of these Support Terms will remain in full force and effect.
7.3 Assignment. Neither party will, or will have the right to, assign, delegate or otherwise transfer any of its rights or obligations under these Support Terms, whether voluntarily, by operation of law or otherwise, without the prior written consent of the other party; provided, however, that either party may, with written notice to the other party (but without the need to obtain the other party’s consent), assign all of its rights and obligations under these Support Terms to a third party that acquires (whether by asset purchase, merger or other transaction or series of transactions) all or substantially all of its business to which the Supported Products relate. Any attempted assignment, delegation or other transfer prohibited by the foregoing will be null and void. Subject to the foregoing, these Support Terms will inure to the benefit of and bind each party’s successors and assigns.
7.4 Governing Law. These Support Terms are to be construed in accordance with and governed by the internal laws of the State of California without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of the parties.
7.5 Dispute Resolution. Any dispute relating to these Support Terms (other than claims for injunctions and other equitable relief) will be settled exclusively by arbitration in San Mateo, California in accordance with the then-prevailing Commercial Arbitration Rules of the American Arbitration Association. Judgment upon the award rendered by such arbitration will be final and binding upon the parties and may be entered in any court having jurisdiction. The arbitrator(s) will not have the power to add to, subtract from or otherwise modify any provision of these Support Terms, to grant any extension or renewal of Technical Support, or to award damages or other remedies expressly prohibited by the Agreement.
7.6 No Waiver. No waiver of any provision of these Support Terms will be effective unless it is specified in a writing signed by an authorized representative of each party. No course of dealing, course of performance or failure of either party to enforce any provision of these Support Terms in a strict or timely manner will be construed as a waiver of such provision or any other provision. No waiver or breach of any provision of these Support Terms will be construed to be a waiver of any subsequent breach of the same or any other provision.
7.7 Relationship of the Parties. These Support Terms will not be construed as creating an agency, partnership, joint venture or any other form of association between the parties, and the parties will at all times be and remain independent contractors.
7.8 Notices. Unless otherwise set forth in these Support Terms, any notice required or permitted hereunder will be deemed to be a valid notice for the purposes of these Support Terms only if it (a) is in writing, (b) makes reference to these Support Terms, and (c) is delivered in person, by reputable courier, or mailed by certified or registered mail, postage prepaid, return receipt requested. Each such notice will be deemed given when received by the intended recipient.
7.9 Interpretation. The captions and headings used in these Support Terms are inserted for convenience only, do not form a part of these Support Terms and will not be used in any way to construe or interpret these Support Terms. These Support Terms will be deemed to have been drafted by all parties; no provision will be construed against either party by reason of the fact that it was drafted by such party. The words “include” and “including” will not be construed as terms of limitation and will therefore mean “including but not limited to” and “including without limitation.”
7.10 Entire Agreement; Amendment. These Support Terms (including Exhibit A hereto, which is hereby incorporated by reference) contain the entire agreement of the parties with respect to the subject matter of these Support Terms and merge and supersede any and all prior and contemporaneous agreements, understandings and communications between the parties, whether oral or written, with respect to such subject matter. Cloudian may modify these Support Terms from time to time, provided that no such modifications will apply to Technical Support purchased by Licensee prior to such modifications being posted on Cloudian’s website. All orders placed by Licensee with Cloudian in connection with these Support Terms will be governed by and subject to these Support Terms. No terms or conditions contained in any purchase order or other document submitted by Licensee will in any way modify or add to these Support Terms, and any such terms or conditions that are in any way inconsistent with or additional to these Support Terms are hereby rejected by Cloudian and will have no force or effect.
1. Additional Definitions
EXHIBIT A Technical Support Description
(a) “Business Hours” means the period during each week starting on Monday at 10:00am Tokyo time (JST) and ending on Friday at 5:00pm California time (PST or PDT, as applicable), excluding any holidays set forth in the support holiday schedule published on the Support Portal.
(b) “Error” means any failure of a Supported Product to perform materially in accordance with the functional specifications therefor set forth in Cloudian’s standard end-user manual for such Supported Product.
(c) “Software Correction” means a software modification or addition that, when made or added to a Supported Product, corrects an Error in such Supported Product.
(d) “Workaround” means a procedure or routine that, when observed in the regular operation of a Supported Product, eliminates or reduces the adverse effect of an Error on the function of such Supported Product.
Each Authorized Support Contact will be provided with an account on the Support Portal.
Cloudian will notify Licensee of the availability of each new GA release, bug fix and update of any Cloudian Software associated with a Supported Product promptly the release of such GA release, bug fix or update.
Licensee may report problems with a Supported Product to Cloudian by email or telephone, or on the Support Portal, as follows: P1 Errors (as defined below) may be reported 24 hours, 7 days per week, and P2 and P3 Errors (as defined below) and problems that are not Errors may be reported during Business Hours.
If any such problem is determined by Cloudian to be an Error:
(a) Error Classification. Cloudian will reasonably classify the Error into one of the following three severity levels:
P1 (Critical): any Error that results in the complete inability of the Supported Product to store and retrieve data.
P2 (Major): any Error that results in severe loss of any major functionality of the Supported Product, but that is not a P1 Error.
P3 (Minor): any Error that is not a P1 or P2 Error.
(b) Software Error Remediation. With respect to each Error that Cloudian determines is caused by Cloudian Software, Cloudian will use commercially reasonable efforts to provide a first response within the following time periods:
P1 Error: 30 minutes
P2 Error: four (4) Business Hours
P3 Error: twenty-four (24) Business Hours
Cloudian’s obligations under this subparagraph 4(b) will not apply to any Error that has been corrected in a subsequent release of the applicable Cloudian Software.
(c) Remediation Conditions. Notwithstanding anything to the contrary, Cloudian’s obligation to provide Technical Support for any problem with any Supported Product is conditioned upon the following:
(i) Licensee using reasonable efforts to identify and resolve the problem after Cloudian has been consulted;
(ii) Licensee providing Cloudian with sufficient information, resources and access (including by remote access) to the Supported Product (and, in the case of a Cloudian Software Product, the system on which it is installed) to identify, diagnose and correct the problem, as well as access to the personnel, hardware and any additional software involved in discovering the problem;
(iii) Licensee promptly implementing all Workarounds, and installing all Software Corrections, updates and upgrades that are provided by Cloudian; and
(iv) Licensee procuring, installing and maintaining all equipment, communication interfaces and other hardware necessary to operate the Supported Product.