Appendix 1 - ENTERPRISE TERMS
1. LICENSE AND SUPPORT. Subject to the terms, conditions and restrictions set forth in this Agreement, including payment of the Subscription Fees set forth in the Order Form, AtScale hereby grants, and Customer hereby accepts, a non-exclusive, non-sublicensable, non-assignable, non-transferable license to install, access and use, solely for its internal business purposes, (i) the software identified on the Order Form (the “Software”), at the Customer premises specified on the Order Form, in accordance with the user documentation provided with the Software (“Documentation), and (ii) the Documentation, each for the Subscription Term set forth in the applicable Order Form. . During the Subscription Term AtScale will support the Software in accordance with the Support Policy attached as Appendix 2
2. TERM; RENEWAL; TERMINATION 2.1 Term of Agreement. This Agreement is effective as of the Effective Date and will continue until the subscriptions and services as described in the Order Form and any Statements of Work (“SOW(s)”) have been completed, expired or terminated.
2.2 Term and Renewal of Orders. The Subscription Term described in each Order Form will commence upon the Order Form Effective Date and continue as set forth therein (“Initial Term”) and will automatically renew for additional one (1) year terms (“Renewal Term”) unless either party has given the other party written notice of non-renewal at least ninety (90) days prior to the end of an Initial Term or Renewal Term.
2.3 Termination This Agreement and any Software subscription may be terminated only if one party materially breaches this Agreement and fails to cure such breach within thirty (30) days or receipt of notice of the breach from the non-breaching party.
3. FEES; PAYMENT TERMS. Subscription Fees and any other fees for professional services are specified on the Order Form. Customer agrees to pay any pre-approved reasonable travel and living expenses incurred in connection with the provision of services under a SOW. Unless otherwise set forth on the Order Form or a SOW, all fees will be invoiced upon the Effective Date of the Order Form. Payment terms are Net 30 days from the date of receipt of invoice. Customer shall be responsible for all taxes on the fees, except for taxes on AtScale’s income.
4. RESTRICTIONS; PROPRIETARY RIGHTS. Customer shall not: (i) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, user interface techniques or algorithms of the Software or disclose any of the foregoing; (ii) encumber, transfer, manufacture, distribute, sell, sublicense, assign, provide, lease, lend, use for timesharing or service bureau purposes, or otherwise use (except as expressly provided herein) the Software or Documentation; (iii) copy, modify, adapt, translate, incorporate into or with other software, or create a derivative work of any part of the Software or Documentation; or (iv) attempt to circumvent any user limits, timing or use restrictions that are built into the Software. The Software is the proprietary intellectual property of AtScale that contains trade secrets and is protected by copyright law. Subject to any license granted hereunder, AtScale retains sole and exclusive ownership of all right, title, and interest in and to the Software. Any and all enhancements, modifications, updates, upgrades, corrections and derivative works that are made to the Software will be considered part of the Software for the purposes of this Agreement and will be owned by AtScale. AtScale shall own all rights, title and interest in any deliverables created by AtScale under a SOW, but all such deliverables shall be licensed to Customer for use in connection with Customer’s use of the Software hereunder. Notwithstanding the foregoing, Customer retains all rights, title and interest in and to Customer’s own information and data, including Customer’s ideas, processes, standards, practices, and management policies and procedures, that is input by Customer into the Software or supplied to AtScale (“Customer Data”).
5. PUBLICITY. Customer agrees to (a) participate in a press release following the execution of this Agreement naming Customer as a customer of AtScale, as well as upon successful implementation, (b) allow its name to be used in sales materials and user literature, which references AtScale’s customers generally, and (c) the use of its name, without endorsement, in a listing of AtScale’s other customers. Customer shall also make reasonable efforts to, upon AtScale’s prior reasonable request, serve as a reference account and to participate in case studies and other promotional activity.
6. CONFIDENTIALITY. Each party shall maintain as confidential and shall not disclose (except to its employees, accountants, attorneys, advisors, affiliates, outsourcers and third party service providers of recipient with a need to know in connection with recipient’s performance under this Agreement, and who have been advised of the obligation of confidentiality hereunder), copy or use for purposes other than the performance of this Agreement, any information which relates to the other party’s business affairs, trade secrets, technology, research, development, pricing or terms of this Agreement (“Confidential Information”) and each party agrees to protect all received Confidential Information with the same degree of care that it would use with its own Confidential Information and to prevent unauthorized, negligent or inadvertent use, disclosure or publication thereof. Breach of this Section may cause irreparable harm and damage. Thus, in addition to all other remedies available at law or in equity, the disclosing party shall have the right to seek equitable and injunctive relief, and to recover the amount of damages (including reasonable attorneys’ fees and expenses) incurred in connection with such unauthorized use. The recipient shall be liable to the disclosing party for any use or disclosure in violation of this Section by recipient or its affiliates, employees, third party service providers or any other related party. Confidential Information shall not include information that (a) is already known prior to the disclosure by the owning party; (b) is or becomes publicly known through no breach of this Agreement; (c) is independently developed without the use of the other party’s Confidential Information and evidence exists to substantiate such independent development; (d) information that is obtained from a third party, and that third party is not, in good faith belief to the recipient, under any legal obligation of confidentiality; or (e) the recipient receives written permission from the disclosing party for the right to disclose any Confidential Information.
7. LIMITED WARRANTY. AtScale represents and warrants that the Software will substantially conform to the Documentation during the Warranty Period, which shall mean the Initial Term and any Renewal Term. If Customer notifies AtScale in writing of a nonconformity of Software during the Warranty Period, AtScale will, at its option and expense, (a) correct any nonconformities in the Software that cause the Software to fail to conform to the Documentation, or (b) provide to Customer a pro rata refund of any prepaid but unutilized Subscription Fees applicable to the non-conforming Software. The limited warranty set forth in this Section shall be void if the Software nonconformity is caused by (i) the use or operation of the Software with an application or in an environment other than that recommended in writing by AtScale, (ii) modifications to or customizations of the Software without the express written authorization of AtScale, (iii) accident, disaster or event of force majeure, (iv) misuse, fault or negligence of or by Customer, (v) use of the Software in a manner for which it was not designed, (vi) causes external to the Software such as, but not limited to, power failure or electrical power surges. THE WARRANTY AND REMEDIES SET FORTH IN THIS SECTION 7 REPRESENT ATSCALE’S SOLE WARRANTY AND CUSTOMER’S SOLE REMEDY IN THE EVENT OF BREACH OF WARRANTY. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, ATSCALE MAKES NO AND DISCLAIMS ALLWARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
8. LIMITATION OF LIABILITY. THE CUMULATIVE LIABILITY OF ATSCALE TO CUSTOMER FOR ALL CLAIMS ARISING UNDER OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO ATSCALE UNDER THE APPLICABLE ORDER FORM WITHIN THE YEAR PRECEDING THE CLAIM. NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL ATSCALE OR ITS SUPPLIERS BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR DAMAGES FOR LOSS OF DATA, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, EVEN IF ATSCALE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IS NEGLIGENT.
9. INDEMNIFICATION. If a third party claims that the Software infringes any U.S. patent, copyright, or trade secret, AtScale will defend Customer against such claim at AtScale’s expense and pay all damages finally awarded through judgment or settlement, provided that Customer promptly notifies AtScale in writing of the claim, allows AtScale sole control of the defense and/or settlement, and cooperates with AtScale in, the defense or settlement of such action. If such a claim is made or appears possible, AtScale may, at its option, secure for Customer the right to continue to use the Software, modify or replace the Software so that it is non-infringing, or, if neither of the foregoing options is available in AtScale’s reasonable opinion, terminate this Agreement and refund to Customer any unamortized pre-paid fees for use of the Software. AtScale shall have no liability or obligation hereunder with respect to any infringement claim if such infringement is caused by (i) compliance with Customer’s instructions, designs, guidelines, plans or specifications; (ii) Customer’s use of the Software other than as speci-fied in the applicable Documentation; (iii) modification of the Software by any person other than as authorized in writing by AtScale; or (iv) the combination, operation or use of the Software with other product(s) or services not supplied by AtScale, where the Software would not by itself be infringing. THIS PARAGRAPH STATES ATSCALE’S ENTIRE OBLIGATION TO CUSTOMER WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
10. GENERAL. 10.1 Entire Agreement. This Agreement is the complete and exclusive statement of the parties’ agreement and supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter hereof. If these Terms and Conditions conflict with any of the terms or conditions of any Order Form or Statement of Work, then, unless otherwise provided herein, the terms and conditions of such Order Form or Statement of Work will control solely with respect to the Software or services covered by such Order Form or Statement of Work. Any purchase orders issued by Customer shall be deemed to be for Customer’s convenience only and, notwithstanding acceptance of such orders by AtScale, shall in no way change, override, or supplement this Agreement.
10.2 Waiver. Any waiver or modification of the provisions of this Agreement will be effective only if in writing and signed by the party against whom it is to be enforced. If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. A waiver of any provision, breach or default by either party or a party’s delay exercising its rights shall not constitute a waiver of any other provision, breach or default.
10.3 Independent Contractor. AtScale is an independent contractor and not an employee of Customer. At no time shall either party make any commitments or incur any charges or expenses for or in the name of the other party, or be considered the agent, partner, joint venturer, employer or employee of the other party.
10.4 Notices. All notices or other communications required to be given hereunder shall be in writing and delivered either by U.S. mail, certified, return receipt requested, postage prepaid; by overnight courier; or as otherwise requested by the receiving party, to the address first listed above. Notices shall be effective upon their receipt by the party to whom they are addressed.
10.5 Assignment. This Agreement may not be assigned by Customer without AtScale’s prior written consent.
10.6 Compliance with Laws. Each party will be responsible for compliance with all legal requirements related to its performance under this Agreement, including all applicable U.S. export laws and those laws related to the protection, privacy and disclosure of data and information.
10.7 Force Majeure. Neither party will be responsible for any failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, terrorism, war, riot, embargoes, fire, floods, earthquakes, or strikes (each a “Force Majeure Event”) provided that such party gives prompt written notice to the other party of the Force Majeure Event. The time for performance will be extended for a period equal to the duration of the Force Majeure Event.
10.8 Governing Law and Disputes. This Agreement and any dispute arising hereunder shall be governed by and interpreted and construed in accordance with the laws of the State of California, without regard to conflict of law principles, and shall be subject to the exclusive jurisdiction of the federal and state courts located in the State of California, and each party consents to the exclusive personal jurisdiction and venue of such courts.
10.9 Non-Solicitation. Neither party shall directly or indirectly solicit, employ or engage any employee of the other party with whom the non-employing party came into contact through the performance of this Agreement during the period such employee was engaged in the performance of this Agreement and for one (1) year after such engagement. If any court or other adjudicatory body determines that the foregoing provision is unenforceable because of its duration or scope, the court or adjudicatory body has the power to reduce the duration or scope of the provision, as the case may be, so that in its reduced form the provision is enforceable. Such power includes the authority to reform the provision by rewriting it, if required, so that it conforms to applicable law and carries out the parties’ intentions under this Agreement.
10.10 Survival. The following provisions of this Agreement shall survive any termination or expiration hereof: Sections 3, 4 and 6 through 10.
Appendix 2 – SUBSCRIPTION SUPPORT POLICY
“Error” means a failure of the Software to conform to the specifications set forth in the Documentation, resulting in the inability to use, or material restriction in the use of, the Software.
“Maintenance Release” means a revision of the Software released by AtScale to its end user customers generally, during the Support Services Term, to correct Errors in the Software or to maintain the operation of the Software in accordance with the Documentation.
“Support Services Term” means the Software subscription term specified on the Order Form.
“Update” means either a software modification or addition that, when made or added to the Software, corrects the Error, or a procedure or routine that, when observed in the regular operation of the Software, eliminates the practical adverse effect of the Error on Customer.
“Upgrade” means a revision of the Software released by AtScale to its end user customers generally, during the Support Services Term, to add new and different functions or to increase the capacity of the Software. Upgrade does not include the release of a new product or added features for which there may be a separate charge.
2. Support Services.
During the Support Services Term, AtScale shall provide the support services described below to Customer (the “Support Services”).
Customer Support Services and Support Contacts. AtScale shall provide customer support through its customer support center (“Customer Support Center”) which shall be available Monday through Friday, 9:00 a.m. to 5:00 p.m. Pacific Time.
AtScale Customer Support Portal URL: https://customers.atscale.com/login
AtScale Customer Support Phone Line: 650.446.3268
Updates. AtScale will make commercially reasonable efforts to provide an Update designed to solve or by-pass a reported Error. If such Error has been corrected in a Maintenance Release, Customer must install and implement the applicable Maintenance Release; otherwise, the Update may be provided in the form of a temporary fix, procedure or routine, to be used until a Maintenance Release containing the permanent Update is available. AtScale shall reasonably determine the priority level of Errors, pursuant to the following protocols and take the following actions during the Customer Support Center hours:
Severity 1 (S1): An S1 is a major Error within the software that severely impacts the Customer’s use of the Software, where the production system is totally down or not fully functioning or mission critical applications or AtScale Projects are not usable and no workaround exists or loss of data. AtScale promptly initiates the following procedures: (a) assigns support specialists to correct the Error on an expedited basis; (b) provides ongoing communication on the status of the issue; and (c) begins to provide a temporary workaround or fix. AtScale responds to S1 production down issues within an hour of issue receipt. All S1 issues must be logged on the AtScale Customer Portal.
Severity 2 (S2): An S2 is a medium to high impact Error within the software where the customer’s production system is functioning but in a degraded or restricted capacity, such as a problem that is causing significant impact to portions of the Customer's business operations and productivity or major functionality is inoperable. AtScale (a) assigns an AtScale support specialist to correct the Error on an expedited basis and (b) provides ongoing communication on the status of the issue. AtScale exercises commercially reasonable efforts to provide a workaround or include a fix for the Severity 2 Errors in a forthcoming Maintenance Release. AtScale responds to S2 issues within 4 hours of issue receipt. All S2 issues must be logged on the AtScale Customer Portal.
Severity 3 (S3): An S3 is a medium to low impact Error within the software that involves partial and/or non-critical loss of functionality, such as a problem that that impairs some operations but allows the Customer's operations to continue to function. AtScale responds to S3 production issues within one (1) business day of issue receipt. AtScale will triage the request and may include a resolution via workaround. AtScale responds to S3 issues next business day. All S3 issues must be logged on the AtScale Customer Portal.
Severity 4 (S4): An S4 is a low priority request for information where there is no impact to business operations. This could include a ‘how to’ product question, a need to clarify procedures or information in documentation, a request for a product enhancement or an administrative request relating to the AtScale Customer Portal. AtScale responds to Severity 4 requests within one (1) business day of issue receipt.
Initial Response Definition. AtScale will provide an initial response to Customer reports of a problem based on the severity and the definitions above, as summarized in the table below. An initial response is the first reply to the reported issue and may not constitute a resolution at that time.
Severity -- Initial Response Time
S1 - Production Down -- 1 hour
S2 – Core Feature Inoperative -- 4 hours
S3 – Minor Feature Inoperative -- Next day
S4 – Request for Info -- Next day
Maintenance Releases and Upgrades. During the Support Services Term, AtScale shall make the Maintenance Releases available to Customer if, as and when AtScale makes any such Maintenance Release generally available to its customers. If a question arises as to whether a product offering is an Upgrade or a new product or feature, AtScale’s opinion shall prevail, provided that AtScale treats the product offering consistently for its end user customers generally.
Conditions for Providing Support. AtScale’s obligation to provide Support Services is conditioned upon the following: (a) Customer makes reasonable efforts to solve the problem after consulting with AtScale; (b) Customer provides AtScale with sufficient information and resources to correct the problem either at AtScale’s Customer Support Center or via dial-up access at Customer’s site, as well as access to the personnel, hardware, and any additional software involved in discovering the problem; (c) Customer promptly installs all Maintenance Releases; and (d) Customer procures, installs and maintains all equipment, telephone lines, communication interfaces and other hardware necessary to operate the Software.
Technical Support Contacts. The AtScale Customer Support Center will provide telephone support to two (2) contacts mutually agreed upon by the parties (“Technical Support Contacts”). Technical Support Contacts will develop or support the Software. They will be the only interface to the AtScale Customer Support Center. Additional Technical Support Contacts may be permitted for an additional fee.
Exclusions from AtScale’s Support Services. AtScale is not obligated to provide Support Services in the following situations: (a) the Software has been changed, modified or damaged (except if under the direct supervision of AtScale); (b) the problem is caused by Customer’s negligence, hardware malfunction or other causes beyond the reasonable control of AtScale; (c) the problem is with third party software not licensed through AtScale; (d) Customer has not installed and implemented all available Maintenance Release(s) so that the Software is a version supported by AtScale; or (e) Customer has not paid the Support Services fees when due.
Termination of Support Services. AtScale reserves the right to discontinue the Support Services should AtScale, in its sole discretion, determine that continued support for any Software is no longer economically practicable or for any other reason. AtScale will give Customer at least three (3) months prior written notice of any such discontinuance of Support Services and will refund any unaccrued Support Services fees Customer may have prepaid with respect to the affected Software. AtScale shall have no obligation to support or maintain any version of the Software or operating system except (a) the then-current version of the Software and operating system, and (b) the immediately preceding version of the Software and operating system for a period of six (6) months after it is first superseded. AtScale reserves the right to suspend performance of the Support Services if Customer fails to pay any amount that is payable to AtScale under the Agreement within thirty (30) days after such amount becomes due.