Scality - Maintenance and Support Services Terms and Conditions

Effective starting: November 14, 2017

Scality – Maintenance and Support Services Terms and Conditions

These Maintenance and Support Services Terms and Conditions (the “Maintenance Terms”) are part of that certain Software License Order Form (the “Order”), being incorporated in the Order by reference.

1. Additional Definitions. Certain capitalized terms used in these Maintenance Terms, not otherwise defined in the Software License Agreement – Terms and Conditions (the “Software Terms and Conditions”), which are also incorporated by reference into the Order, shall have the meanings set forth or cross-referenced below. Capitalized terms used in these Maintenance Terms that are not otherwise defined in these Maintenance Terms have the meaning set forth in the Software Terms and Conditions or Order. In these Maintenance Terms, “Agreement” refers to the Order and the Software Terms and Conditions.

1.1 “Covered Software” means, collectively, any proprietary Software application(s) of Scality for which licenses have been granted to Customer pursuant to the Agreement for a particular Supported Platform, provided that any particular Covered Software application shall remain a Covered Software only for so long as Customer continues to have such license rights under the relevant Agreement and only for the Supported Platform identified on the Order. The Customer is responsible for identifying all Covered Software and the Supported Platform (i.e., hardware and operating system) on which it is operating as of the beginning of the Maintenance and Support Services. If the Supported Platform information has not been communicated to Scality and is not kept up-to-date by Customer in communications to Scality all along the life of the Maintenance and Support Services, then Scality will not have any obligations to provide support or maintenance under the terms of these Maintenance Terms.

1.2 “Covered Software Error” will mean any material nonconformity of the Covered Software with the Documentation.

1.3 “Covered Software Update” will mean any minor version of the Covered Software, developed subsequent to the Effective Date, which implements minor improvements or augmentations, or which corrects failures of the Covered Software materially to conform to the then-current Documentation. For example, a release that is to the right of the decimal point (i.e., version 1.2 to 1.3) is a minor release and a release to the left of the decimal point (i.e., version 1.2 to 2.0) is not a Covered Software Update.

1.4 “Covered Software Upgrade” will mean any version of the Covered Software, developed subsequent to the Effective Date, which implements additional features or functions, or which produces substantial and material improvements with respect to the utility and efficiency of the Covered Software or adds new features or functionality to the Covered Software, but which does not constitute merely a Covered Software Update (as reasonably determined by Scality), and which is not marketed by Scality as a separate module, product and/or service.

1.5 “Covered Software Upgrades Optional Features” are specific features made available by Scality to Customer through a Covered Software Upgrade that can be separately licensed and can be available for purchase

1.6 “Priority 1” means a Covered Software Error where the Covered Software is not operational, in that mission critical functionality is not available.

1.7 “Priority 2” means a Covered Software Error where either: (a) the Covered Software is not fully operational, in that some mission critical functionality is available, but such functionality is not operating correctly; or (b) a complete failure of non-critical software options such as the supervisor module, the monitoring module, reporting module, and logging sub-systems.

1.8 “Priority 3” means all other situations in a production environment of the Covered Software.

1.9 “Technical Support” means the provision of responses by qualified Scality personnel to questions from Eligible Customer Personnel related to use and operation of the Covered Software, including basic instruction or assistance related to functional errors in the Covered Software. Technical Support does not apply to any hardware.

2. Technology Maintenance

2.1 Error Corrections. Scality will use commercially reasonable efforts to adapt, re-configure or re-program the Covered Software, as applicable, in order to correct in a timely fashion any Covered Software Errors reported to Scality by Eligible Customer Personnel, as defined below, provided that if Scality determines in good faith that any such Covered Software Error is the result of errors or misstatements in the Documentation, Scality may correct such non-conformity solely by amending the Documentation, as necessary, and further provided that any failure or inability by Scality to correct any such Covered Software Error, or failure or inability to do so in a timely fashion, will in no event be deemed a breach of Scality’s obligations hereunder.

2.2 Procedural Workarounds. In the event that Scality fails or is unable to correct any Covered Software Error, as required by these Maintenance Terms, Scality will use commercially reasonable efforts to develop in a timely fashion procedures or routines, for use by end users of the Covered Software, which, when employed in the regular operation of, or access to, the Covered Software, will avoid or substantially diminish the practical adverse effects of the relevant Covered Software Error, provided that any failure or inability by Scality to develop any such procedure or routine, or failure or inability to do so in a timely fashion, will in no event be deemed a breach of Scality’s obligations hereunder.

2.3 Covered Software Updates; Covered Software Upgrades. From time to time Scality may, in its discretion, develop Covered Software Updates and/or Covered Software Upgrades. Scality will, during the License Term of these Maintenance Terms, make such Covered Software Updates and Upgrades available to Customer, by the same means or methods by which the relevant Covered Software is made available, provided that Customer has paid all fees due under this Agreement. This Agreement does not include Covered Software Upgrades Optional Features, which may be subject to specific fees. Any such Covered Software Updates and Upgrades provided hereunder will be deemed to constitute part of the relevant Covered Software and will be subject to all the terms and provisions hereof, including, without limitation, terms and provisions related to licenses, usage restrictions and ownership of such Covered Software.”

3. Technical Support.

3.1 Support Obligation. Subject to Customer’s payment of support fees as required in Section 4 of these Maintenance Terms, Customer will be permitted to designate in writing to Scality up to two (2) Customer personnel for purposes of obtaining Technical Support from Scality (“Eligible Customer Personnel”). Scality’s Global Support Team is available to the Customer via a regional telephone number on a 24 x 7 basis for Priority 1 issues. For Priority 2 and 3 issues, as well as Service and Information Requests, Customer personnel can contact Scality for technical and maintenance support via Scality’s Service Ticket System or instant messaging (through Scality’s Instant Messaging server) during normal business hours (specific to the region). Scality will provide Technical Support to such Eligible Customer Personnel by means set forth in the following table, subject to the conditions regarding availability or response times with respect to each such form of access as set forth in the table.

Table 5.1(a) Problem Priority Levels and Guaranteed Response Times

Priority CategoryAccess MethodResponse TimeTarget Service
Restoration
Priority 1 “Major”Phone15 minutes (24x7)2 hours
Priority 2 “Moderate”
Ticketing, IM4 hours3 business days
Priority 3 “Minor”Ticketing, IM3 business days1N/A
Service and/or Information Requests Ticketing, IMAs can be accommodatedN/A

3.2 Escalation. Upon receipt and acknowledgement of a Customer trouble ticket in Scality’s Service Ticket System, a Level 1 support technician staffing the Global Support Help Desk will thereupon take charge of the trouble event and “own” it from end-to-end, even if the ticket is escalated to a higher level Support Engineer, such as a Level 2 or Level 3 Support Engineer. The following table identifies the escalation path Scality will employ to serve the Customer.

Table 5.2.1(a) Internal Escalation Pathways for Trouble Resolution

Escalation on “no workaround”Escalation to Customer Solutions EngineerEscalation to Director level
Priority 1 ”Critical”
1 hour (24 x 7)2 hours (24 x 7)
Priority 2 ”Moderate”
3 business days6 business days
Priority 3 ”Routine”
5 business daysNA

3.3 Scality cloud monitoring solution. Customer will benefit from the standard version of Scality monitoring, alarming and capacity planning solution at no additional charge, subject to the use of a compatible version of Scality Software by Customer. The standard version of Scality monitoring solution provides information on the Software global operations to Customer and Scality Technical Services through an online monitoring platform and an alarming system.

3.4 Other Options. If Customer decides to purchase other Support packages, additional terms and/or benefits may apply and will be set forth in the applicable Order.

3.5 Customer Access. Customer shall provide such information and/or access to Customer resources as Scality may reasonably require in order to provide Technical Support under this Agreement, including, without limitation, access via the Internet or via direct modem connection to relevant Customer servers, access to Customer facilities, and/or access to, and assistance of, Customer personnel who possess information required by Scality for purposes of performing its obligations hereunder. Scality shall be excused from any non-performance of its obligations hereunder to the extent any such non-performance is attributable to Customer’s failure to perform its obligations under this Section 4.1.

3.6 Online Case Tracking System. Scality encourages our Customers to use our online service tools. Customers can open a service request online, update and view the status online, and receive notifications as we work on your service request. To open a service request, please log in to our support tracking tool at: http://support.scality.com. To properly qualify the support request, the customer is asked to fill in the category and the severity of the issue. Then the customer will be asked to provide a description of the problem. Providing details (logs, way to reproduce, version n°, etc…) is strongly encouraged as it helps speeding up the resolution process. For existing requests, it is possible to interact via e-mail. If so, please include the service request number in the email subject line.

4. Limitations to Technical Support.

4.1 Eligible Recipients. Scality shall have no obligation to provide Technical Support, by any means, to any entity or individual other than Eligible Recipients.

4.2 Technical Support Exemptions. Unless otherwise agreed by the Parties, Scality shall have no obligation to provide Technical Support with respect to any Covered Software Error resulting from (i) use of the Covered Software other than according to the terms of relevant Agreement; (ii) modification of the Covered Software by Customer or any third party, except as expressly permitted in writing by Scality; (iii) any combination or integration of the Covered Software with hardware, Covered Software and/or technology not provided by Scality, regardless of whether such combination or integration is permitted under the terms of the License Agreement; (iv) 3rd party software, monitoring, or other applications running on the Scality platform which have not been certified for implementation at the customer site or covered under maintenance agreement; (v) continued support requests for issues where Scality has provided an Update or Upgrade which has not been implemented by the Customer; (vi) enhancements requests; or (vii) implementation of the Software on platforms other than Supported Platforms.

4.3 Version Requirements. Unless otherwise agreed by the Parties, Scality shall not be required to provide Technical Support regarding use of any version other than the current version of the Covered Software as well as the last minor version following the last major version. Example: if the current Software Upgrade is Rev 6.0 and the last Software Update following the Rev 5.0 Software Upgrade is Rev 5.3, then Scality is committed to issue fixes only on Rev 6.0 and Rev 5.3.

4.4 General Protection of Scality Intellectual Property. Scality shall not be required to provide Technical Support to the extent the provision thereof might reasonably be expected to jeopardize or harm Scality’s rights in any intellectual property, or reveal trade secrets or other proprietary information of Scality not generally available to the public or to end users of the Covered Software.

4.5 No Source Code. Nothing in this Agreement shall be construed to give Customer a right to use, or otherwise obtain access to, any source code from which the Covered Software or any portion thereof is compiled or interpreted.

4.6 Limitations of Warranty and Liability. Scality makes no representations or warranties under these Maintenance Terms, and Customer acknowledges that these Maintenance Terms is subject to all disclaimers and limitations or liability set forth in the Master Terms.

5. Fees. In consideration for performance of Scality’s obligations under these Maintenance Terms, Customer shall pay to Scality, without offset or deduction, certain non-refundable fees, in such amounts as may be determined by reference to an Order. Unless otherwise provided in such Order, all such fees shall be due and payable within thirty (30) calendar days after an invoice is issued by Scality with respect thereto.

6. Term.

6.1 Maintenance Term. These Maintenance Terms shall become effective when executed by both Parties (the date executed by the latter Party, the “Schedule Effective Date”) and shall continue in effect for a period of one (1) year, unless earlier terminated in accordance with this Section 6. Thereafter, these Maintenance Terms shall automatically renew for successive one (1)-year terms (the initial term and each such one-year renewal term, an “Annual Maintenance Term”), unless either Party provides written notice of its intent not to renew at least sixty (60) days prior to the end of the then-current initial term or renewal term, as applicable, provided that Scality shall have the option to modify the rates and prices with respect to any renewal term by notifying Customer of such new rates and prices at least ninety (90) days prior to the commencement of such renewal term. Notwithstanding the foregoing right of non-renewal of these Maintenance Terms, Scality agrees that it shall permit renewal of these Maintenance Terms (i.e., shall refrain from exercise its right of non-renewal) for not less than [one (1)] Annual Maintenance Term.

6.2 Maintenance Termination for Breach. Either Party may, at its option, terminate these Maintenance Terms in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and these Maintenance Terms shall terminate in the event that such cure is not made within such thirty (30)-day period.

6.3 Renewal of Lapsed Maintenance Term. In the event that Customer elects not to renew these Maintenance Terms at the conclusion of any Annual Maintenance Term (by providing notice as required by Section 6.1), Customer may subsequently renew and reinstate these Maintenance Terms at any time during the Term of this Agreement upon payment of fees at Scality’s then-current rates (i.e., applicable as of the date of reinstatement of these Maintenance Terms) due under these Maintenance Terms as if it had been renewed for each Annual Maintenance Term from and after the Schedule Effective Date.

6.4 Effect of License Termination. Upon any termination of these Maintenance Terms, Customer shall promptly pay to Scality all amounts due and remaining payable under these Maintenance Terms. All amounts payable under these Maintenance Terms are non-refundable, and no credit or rebate shall be payable to Customer upon any termination hereof.

[1] Business hours and business days are defined respective to “normal business hours” within the time zone of the Customer (e.g., 9am to 5 pm, Monday through Friday) and business days in France, with the exclusion of any bank holidays).