These M&S Terms are made under an Order between the Licensee and Licensor that incorporates an End User Software License Agreement (EULA) and describe the level of standard maintenance and support (M&S) services provided by Licensor as to the Software identified in the Order for M&S services. Capitalized terms not defined here are defined in the EULA and incorporated herein.
In consideration of payment of the Fees in the applicable Order for M&S services, and provided Licensee is not in breach of the EULA or any Order, Licensor agrees, during the term of the Order for M&S services, as follows:
Licensor will use commercially reasonable efforts to adapt, reconfigure or reprogram the Software, as applicable, to correct any material nonconformity of the Software with the Software documentation (Error(s)) reported to Licensor by Licensee, in a reasonable time in light of the severity of the Error, provided that if such Error is the result of errors or misstatements in the Software documentation, Licensor may correct such non-conformity by amending the Software documentation (Error Correction).
If Licensor is unable to complete an Error Correction, Licensor will use commercially reasonable efforts within a reasonable time in light of the severity of the Errors, to develop procedures or routines which, when employed in the regular operation of, or access to, the Software, will avoid or substantially diminish the practical adverse effects of the relevant Errors (Workaround).
Licensor may develop modifications to the Software that (a) are minor improvements or augmentations and do not introduce material new functionality (Updates) or (b) additional features or functions, or substantial and material improvements with respect to the utility and efficiency of the Software or that add new features or functionality to the Software, and which are not marketed by Licensor as a separate module, product and/or service (Upgrades). Licensee is entitled to all Updates during the term of an M&S services Order for the Software identified therein. Licensor may charge additional fees for Upgrades to the extent Licensor generally imposes such an Upgrade fee on similarly situated customers. Updates that are designated as remediation for security vulnerabilities must be installed by Licensee within a reasonable time, not to exceed 30 days, after Licensee is informed that such security release is available. If Licensee fails to install such security updates, Licensor is not liable for any security issue or maintenance related to such issue that was remediated in such release. Licensor may provide Upgrades that resolve Errors and designate prior releases as end of life. Licensor shall not be required to support Software beyond its stated end of life period, provided that no version of Software under a then unexpired Order for M&S services shall have an end of life for Licensee prior to the end of the term for such Order for M&S services. All Updates and Upgrades constitute Software under the EULA.
Licensor will provide the following levels of technical support to the Licensee. Technical support is only provided for the production instance (i.e. not lab, test, preview or other non in-production environments) of the Software.
|Priority Category||Access Method||Response Time||Target Service Restoration|
|Priority 1||Phone||15 minutes (24×7)||2 hours|
|Priority 2||Ticketing Only||4 business hours||3 business days|
|Priority 3||Ticketing Only||3 business days||N/A|
|Service and/or Information Requests||Ticketing Only||As can be accommodated||
Licensee is responsible for identifying all Software and hardware and the Software environment operating system as of the beginning of the M&S services (Supported Platform). If the Supported Platform information has not been communicated to Licensor and is not kept up-to-date by Licensee in communications to Licensor during term of the M&S services, Licensor will not be responsible for failure to provide M&S services to the extent such failure arose from lack of upto-date Licensee contact information. Unless an Order specifically provides otherwise, or Licensor otherwise consents in writing, Licensee must use Licensor’s identified phone numbers and trouble ticket system (https://support.scality.com) for the technical support provisions to apply. Licensee shall cooperate with Licensor and provide Licensor access to Licensee personnel and resources as Licensor may reasonably require in order to provide technical support, which may include access through the Internet, VPN, remote desktop or other remote help technology, access to Licensee facilities, and/or access to, and assistance of, qualified Licensee personnel. Licensor is excused from any non-performance of M&S services to the extent any such non-performance is attributable to Licensee’s failure to meet these conditions.
Licensor shall have no obligation to provide technical support with respect to any Errors resulting from (i) misuse of the Software; (ii) modification of the Software by Licensee or any third party, except as expressly permitted in writing by Licensor; (iii) any combination or integration of the Software with hardware, Software and/or technology not identified by Licensor in the Software documentation, the Order, or other agreement between the parties, as compatible with the Software; (iv) Third Party Software, monitoring, or other applications which have not been certified for implementation by Licensor at the Licensee site; (v) continued support requests for issues where Licensor has provided an Update or Upgrade which has not been implemented by the Licensee; (vi) implementation of the Software on platforms other than Supported Platforms. Licensor is not required to provide technical support to the extent the provision thereof might reasonably be expected to jeopardize or harm Licensor’s rights in any intellectual property, or reveal trade secrets or other proprietary information of Licensor not generally available to the public or to end users of the Software.
Licensor offers a remote monitoring/alerting service (Alerting Service) to Licensee as part of technical support, depending on the Software that is licensed, the Supported Platform capabilities, and Licensee’s configuration of its environment. Alerts sent by the Alerting Service do not constitute notice to Licensor of a technical support request. Licensee acknowledges that Licensee may not receive automated notices of important system events that might signal impending Errors.
This section does not apply to Orders received by the Licensor from a Third-Party (including but not limited to authorized Reseller, authorized Distributor).
M&S services under an Order are not terminable (except as expressly stated below) for the term stated in the Order and are not refundable. The M&S service term commences on the Order for M&S services is executed by Licensor and Licensee (Effective Date) and shall continue in effect for a period stated in such Order or if not stated one (1) year. All Fees shall be paid in advance, annually, in accordance with the Order, or if no time for payment is stated in the Order, within thirty (30) calendar days after an invoice is issued by Licensor. The M&S services term shall automatically renew for successive one (1)-year terms (Renewal Term) unless either Licensee or Licensor provides written notice of its intent not to renew to the other party at least sixty (60) days prior to the end of the then-current initial term or Renewal Term. Licensor shall have the option to modify the rates and prices for M&S services in any Renewal Term by notifying Licensee of such new rates and prices at least ninety (90) days prior to the commencement of such Renewal Term.
If Licensee does not continue annual M&S services for specified Software, and later desires to re-commence M&S services, Licensee shall be required to pay for all periods during the lapse to reinstate the M&S services.
Licensee shall identify a primary point of contact with Licensor to receive notices and information from Licensor regarding M&S services and keep such contact information up to date. Licensee expressly agrees to receive Licensor notices electronically, and such notices will be deemed received when sent to the then last known contact address, unless Licensor receives a rejection notice from the Licensee’s server. Licensor may establish one or more forms of communication channels for Licensee to receive such notices.
Upon any early termination of the EULA for breach of the EULA by Licensor, all Orders for M&S services related to the Software under the terminated EULA shall also terminate, and Licensor shall refund to Licensee the prorated, prepaid unused amount of M&S services. When applicable, except for the prior sentence, all Fees for M&S services are non-refundable and no credit or rebate shall be payable to Licensee upon any termination hereof.