Enterprise Subscription Terms Agreement
Alluxio ESA Click ver. 062517
Alluxio Confidential and Proprietary
ALLUXIO, INC. ENTERPRISE SUBSCRIPTION AGREEMENT
The following terms apply to purchase of Subscriptions to Alluxio Products and Support, Professional Services and Training:
1. Definitions. For the purposes of this Agreement, including exhibits hereto, the following terms will have the following meanings:
1.1 “Affiliate” means any legal entity in which a party, directly or indirectly, holds more than fifty percent (50%) of the shares or voting rights or controls or is under common control with that legal entity. “Control” means the direct or indirect possession of the power to direct or cause the direction of the management and policies of an entity, whether through ownership, by management agreement, by contract, or otherwise. Any such entity shall be considered an Affiliate for only such time as such interest or control is maintained.
1.2 “Alluxio Product(s)” means the Alluxio Software and Third Party Software.
1.3 “Alluxio Software” means Alluxio’s proprietary software components set forth in the applicable Order Form, that may include but is not limited to the “Alluxio Manager”, “Active Replication”, “Fast Durable Writes” and “Kerberos Authentication” features of the Alluxio Software, and includes any updates or upgrades thereto that may be provided by Alluxio to Customer during a paid Subscription Period.
1.4 “Intellectual Property Rights” means copyright rights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), patent rights (including, without limitation, the right to exclude others from making, using and selling), trade secrets, moral rights, rights of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the laws of the United States or any other state, country or jurisdiction.
1.5 “Node” means any computer apparatus: that (i) runs no more than one each of Alluxio Master or Alluxio Worker; and (ii) is addressable by a unique network identifier such as a Fully Qualified Domain Name or Internet Protocol (IP) address.
1.6 “Order Form” means the document provided by Alluxio and agreed to by Customer indicating Alluxio products and/or services purchased, quantity, price and term.
1.7 “Professional Services” means the applicable professional services offered by Alluxio and purchased by Customer as further described in Section 3.3.
1.8 “Subscription Period” means a one year period, or another time period as may be set forth in the applicable Order Form. The initial Subscription Period commences upon the Effective Date unless otherwise stated on the applicable Order Form.
1.9 “Support” means the applicable support offered by Alluxio and purchased by Customer as further described in Section 3.2.
1.10 “Third Party Software” means the copyrighted, patented and/or otherwise legally protected software of third parties that may be incorporated in the Alluxio Product, a current list of which is set forth at www.alluxio.com/third-party-licenses as updated by Alluxio from time to time.
1.11 “Training” means the training offered by Alluxio and purchased by Customer as further described in Section 3.4.
2. Grants, Restrictions and Ownership.
2.1 Grants. Subject to the terms and conditions of this Agreement, Alluxio grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable and limited license for duration of the applicable Subscription Period only, to access, use the Alluxio Product identified in the applicable Order Form on no more than the number of Nodes specified in the applicable Order Form solely for Customer’s internal purposes. For the avoidance of doubt each running of an Alluxio Master or an Alluxio Worker will be each be deemed to be a separate Node.
2.2 Restrictions. Customer may not: (i) modify, disclose, alter, translate or create derivative works of the Alluxio Product, except as otherwise expressly set forth in this Agreement; (ii) decompile, reverse engineer, disassemble or otherwise attempt to reconstruct or discover the source code, underlying ideas or algorithms of any components of the Alluxio Product, (iii) use or deploy the Alluxio Product in excess of the number of Nodes for which Customer has paid the applicable fees (iv) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Alluxio Product; (v) use the Alluxio Product, or allow the transfer, transmission, export or re-export of the Alluxio Product or any portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency; or (vi) cause or permit any other party to do any of the foregoing. In addition, Customer will not remove, alter or obscure any proprietary notices in the Alluxio Product including copyright notices, or permit any other party to do so.If Customer does not comply with the license terms or the foregoing restrictions, Alluxio may terminate or suspend Customer’s license to the Alluxio Product (without refund or credit) until Customer comes into compliance with such terms and restrictions.
2.3 Ownership and Reservation of Rights. As between the parties and subject to Sections 2.1 and 2.2, Alluxio will own all right, title and interest in and to (i) the Alluxio Product, (ii) all modifications to and derivative works of the Alluxio Product made by or for Alluxio; and (iv) any and all Intellectual Property Rights embodied in the foregoing. Alluxio reserves all rights not expressly granted in this Agreement, and no other licenses or rights are granted by Alluxio to Customer under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement.If Customer is the United States Government or any contractor thereof, all licenses granted hereunder are subject to the following: (a) for acquisition by or on behalf of civil agencies, as necessary to obtain protection as “commercial computer software” and related documentation in accordance with the terms of this Agreement and as specified in Subpart 12.1212 of the Federal Acquisition Regulation (FAR), 48 C.F.R.12.1212, and its successors; and (b) for acquisition by or on behalf of the Department of Defense (DOD) and any agencies or units thereof, as necessary to obtain protection as “commercial computer software” and related documentation in accordance with the terms of this Agreement and as specified in Subparts 227.7202-1 and 227.7202-3 of the DOD FAR Supplement, 48 C.F.R.227.7202-1 and 227.7202-3, and its successors. Manufacturer is Alluxio, Inc.
2.4 Affiliate Use. An Affiliate of Customer may access and use the Alluxio Product licensed by Customer under an applicable Order Form; provided that: (i) such Affiliate agrees in writing with Customer to be bound by and accepts all of the obligations imposed upon Customer under this Agreement (other than payment obligations for which Customer is solely responsible to Alluxio unless the Affiliate enters into a separate Order Form with Alluxio); (ii) Customer agrees to be responsible for the acts and omissions of such Affiliate in relation to the Agreement; (iii) the Affiliate is not an Alluxio customer under separate contract, nor actively engaged with Alluxio in discussions for the license of Alluxio Product at the time an Order Form is executed pursuant to this Agreement; (iv) the Affiliate is not a direct competitor of Alluxio; and (v) all of Customer’s obligations under the Agreement and the Order Form shall remain in force and undiminished.
3. Delivery; Support; Training; Professional Services
3.1 Delivery. Upon Alluxio’s acceptance of the Order Form signed by Customer, and Alluxio’s receipt of a valid and correct purchase order, Alluxio will, at its expense, make the Alluxio Product available for download. The Alluxio Product will be deemed delivered and accepted when the electronic download is available.
3.2 Support. Subject to Customer’s compliance with the terms and conditions of this Agreement, Alluxio will use commercially reasonable efforts to provide the support services for the Alluxio Product as set forth in Alluxio’s then-current support terms and conditions, a current copy of which is set forth in Exhibit A (“Support”).
3.3 Professional Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, Alluxio will use commercially reasonable efforts to provide professional services to Customer as set forth in Alluxio’s then-current Professional Services terms and conditions, a current copy of which is set forth as Exhibit B.
3.4 Training. Subject to Customer’s compliance with the terms and conditions of this Agreement, Alluxio will use commercially reasonable efforts to provide the training services to Customer as set forth in Alluxio’s then-current training terms and conditions, a current copy of which is set forth as Exhibit C.
4. Financial Considerations.
4.1 Payment Terms. Customer will pay to Alluxio the total subscription fees due for the applicable Subscription Period and for any Professional Services, Training or the like as set forth in the applicable Order Form. Fees are due at the commencement of the Subscription Period, for all Nodes where the Alluxio Product are installed. In the event that Customer elects to add Nodes during the Subscription Period that exceed the quantity of Nodes included in a subscription, fees for such nodes are calculated for the period commencing immediately upon installation of the Alluxio Product, pro-rated such that the Subscription Period of the additional Nodes will terminate on the same date as the existing licensed Nodes.The fees do not include taxes. Upon receipt of Customer’s purchase order for a Subscription Period or for any additional Nodes purchased during a then-current Subscription Period, Alluxio will invoice Customer, and within thirty (30) days of the date of the invoice, Customer will pay the invoiced amount. All payments due under this Agreement will be made: (i) by bank wire transfer or electronic ACH deposit to an account designated by Alluxio, or by company check in immediately available funds; and (ii) in U.S. Dollars. Notwithstanding any terms to the contrary in this Agreement: (i) Alluxio, at its sole discretion, may modify its pricing during any Subscription Period and such pricing changes will be effective as of the directly subsequent Subscription Period; and (ii) Alluxio will not be obligated to issue any refunds or credits for Subscription Fees paid except as expressly provided in this Agreement.
4.2 Taxes. Customer will pay any and all sales, use, excise, import, export, value added or similar taxes and all government permit or license fees, and all customs, duty, tariff and similar fees levied upon the Alluxio Product and the provision of any Support, Training, or Professional Services under this Agreement, and any costs associated with the collection or withholding thereof, including penalties and interest. Customer will withhold any taxes on payments to Alluxio if required to do so by any government and will pay such taxes to the appropriate tax authority. Customer will utilize its best effort to make sure that any taxes withheld are minimized to the extent possible under the applicable law and will provide all the necessary documents to enable Alluxio to claim the withholding tax refund under the applicable tax treaty, if any. Alluxio will be responsible for any withholding tax that it is unable to recover.
5. Confidentiality and Publicity.
5.1 Confidentiality. “Confidential Information” means any information disclosed by one party (“Discloser”) to the other (“Recipient”), directly or indirectly, in writing, orally or by inspection of tangible objects, which is designated as “Confidential,” “Proprietary” or some similar designation, or learned by Recipient under circumstances in which such information would reasonably be understood to be confidential. Confidential Information may include information disclosed in confidence to Discloser by third parties. For clarity, Alluxio’s Confidential Information includes but is not limited to the Services, the Deliverables, and the results of any performance, functional or other evaluation of the Alluxio Products, Services, or Deliverables. For clarity, Customer Confidential Information includes but is not limited to Customer Materials. Recipient will, during the term of this Agreement and for five (5) years thereafter, maintain in confidence the Confidential Information of the Discloser and will not use, disclose, distribute or disseminate Discloser’s Confidential Information except solely for the purpose of carrying out the Recipient’s obligations under this Agreement or as otherwise expressly agreed by Discloser in writing. Recipient will use the same degree of care in protecting the Discloser’s Confidential Information as the Recipient uses to protect its own Confidential Information from unauthorized use or disclosure, but in no event less than reasonable care. In addition, Recipient: (i) will not reproduce Confidential Information disclosed by Discloser, in any form, except as required to accomplish the Recipient’s obligations under this Agreement; and (ii) will only disclose Confidential Information disclosed by Discloser to Recipient’s directors, officers, employees and/or contractors who have a need to know such Confidential Information in order to perform their duties under this Agreement and if such directors, officers, employees and/or consultants have executed a non-disclosure agreement with the Recipient with terms no less restrictive than the non-disclosure obligations contained in this Section 5. Confidential Information will not include information that: (a) is in or enters the public domain without breach of this Agreement through no fault of the Recipient; (b) the Recipient can reasonably demonstrate was in its possession prior to first receiving it from the Discloser; (c) the Recipient can demonstrate was developed by the Recipient independently and without use of or reference to the Discloser’s Confidential Information; (d) the Recipient receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. or (e) is required to be disclosed pursuant to a judicial or legislative order or proceeding; provided that, to the extent permitted by and practical under the circumstances, Recipient provides to Discloser prior notice of the intended disclosure and an opportunity to respond or object to the disclosure or if prior notice is not permitted or practical under the circumstances, prompt notice of such disclosure. The parties agree that damages would be an inadequate remedy in the event of a breach of this Section 5.1. Therefore, the parties agree that a party is entitled, in addition to any other rights and remedies otherwise available, to seek injunctive and other equitable relief in the event of a breach or threatened breach of the other party of this Section 5.1.
5.2 Return of Confidential Information. As between the parties, Confidential Information shall remain the property of the Discloser. At any time, upon Discloser’s reasonable request, Recipient shall promptly (and in any event within 30 days) return to Discloser or destroy, at the election of the Recipient, any Confidential Information of the Discloser. In addition, within 30 days after termination of this Agreement, Recipient shall (i) promptly return all tangible materials containing such Confidential Information to Discloser, (ii) remove all Confidential Information (and any copies thereof) from any computer systems of the Recipient (except that there is no requirement to search back up media maintained in the ordinary course of business), its contractors and its distributors, and confirm in writing that all materials containing Confidential Information have been destroyed or returned to Discloser, as applicable, by Recipient. Recipient shall cause its affiliates, agents, contractors, and employees to strictly comply with the foregoing.
5.3 Publicity. Customer consents to Alluxio’s use of Customer’s name and logo on Alluxio’s Web site, in public presentations given by Alluxio’s employees, and on publicly-available printed materials, identifying Customer as a customer of Alluxio. Customer agrees it will serve as a reference account for Alluxio upon request.
5.4 Feedback. If Customer provides feedback, comments, bug reports, suggestions, feature requests, technical information, or any other information to Alluxio about proposed modifications or improvements to the Alluxio Products (“Feedback”) to Alluxio, Alluxio may use such Feedback for any purpose, including to develop and improve its commercial products. Accordingly, Customer grants to Alluxio a perpetual, irrevocable, transferrable, nonexclusive, fully-paid, royalty-free license to use Feedback for any purpose.
5.6 Personally Identifiable Information. Subject to applicable law, in connection with the performance of this Agreement and Customer’s use of the Alluxio Product or services, (i) Alluxio agrees that it will not require Customer to deliver to Alluxio any personally identifiable information (as defined by the National Institute of Standards and Technology) (“PII”) and (ii) Customer agrees not to deliver any PII to Alluxio.
6. Representations and Warranties; Disclaimer.
6.1 General Representations and Warranties. Each party represents and warrants that: (i) it is validly existing and in good standing under the laws of the place of its establishment or incorporation; (ii) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement; (iii) the person signing this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement; and (iv) this Agreement is valid, binding and enforceable against it in accordance with its terms.
6.2 Software Warranty. Alluxio represents and warrants that for a period of thirty (30) days following initial delivery (the “Warranty Period”), the Alluxio Software will perform in all material respects in accordance with the Alluxio Software user documentation. Customer must notify Alluxio of any non-conformance with this warranty during the Warranty Period, and Alluxio will either: (i) repair the Alluxio Software such that it conforms to the warranty; (ii) replace the Alluxio Software with an equivalent product that conforms to the warranty, or, if neither (i) nor (ii) is reasonable or practicable, as Alluxio’s sole obligation and Customer’s exclusive remedy for breach of warranty, Customer may return the applicable Alluxio Software and Alluxio subscription fees Customer paid to Alluxio for the defective Alluxio Software adjusted pro-rata based on the time remaining in the Subscription Period for the applicable Alluxio Software.
6.3 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 6.1 and 6.2,ALLUXIO AND ITS SUPPLIERS DISCLAIM ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE ALLUXIO SOFTWARE, THE THIRD PARTY SOFTWARE, AND/OR THE SUPPORT SERVICES, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (I) WARRANTIES OF MERCHANTABILITY; (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT ALLUXIO KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (III) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. ALLUXIO AND ITS SUPPLIERS MAKE NO WARRANTIES WITH RESPECT TO THE ALLUXIO SOFTWARE AND THE THIRD PARTY SOFTWARE BEING FREE FROM BUGS, ERRORS, OR OMISSIONS. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
7. Indemnification Obligations. Alluxio will defend and indemnify Customer and its respective officers, directors, employees, agents, representatives, and contractors (each, a “Customer Party”), from and against any and all liability and costs (including, without limitation, attorneys’ fees and costs) incurred by any Customer Party in connection with any actual or alleged claim made by a third party arising out of, or relating to Customer’s use of the Alluxio Software as authorized herein infringing or misappropriating a third party’s copyright, trade secret or patent issued as of the Effective Date, provided that Customer: (i) gives prompt notice of the claim to Alluxio; (ii) grants sole control of the defense and settlement of the claim to Alluxio (except that Customer’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of or result in any ongoing liability to Customer); and (iii) provides reasonable cooperation to Alluxio and, at Alluxio’s request and expense, assistance in the defense or settlement of the claim. In the event of a claim pursuant to this Section 7, Alluxio may, at Alluxio’s option and at Alluxio’s expense: (a) obtain for Customer the right to continue to exercise the license granted to Customer under this Agreement; (b) substitute a substantially equivalent non-infringing product; (c) modify the Alluxio Software to make it non-infringing; or (d) terminate Customer’s subscription for the applicable Alluxio Software. Upon a termination of a subscription pursuant to this Section 7, Customer must return or destroy the Alluxio Software in its possession and, within 30 days of Alluxio’s receipt of all of the Alluxio Software or certification of destruction thereof, Alluxio will refund the amount Customer paid to Alluxio for the applicable Alluxio Software adjusted pro-rata based on the time remaining in the Subscription Period for the applicable Alluxio Software. Alluxio’s obligations under this Section 7 do not extend to claims arising from or relating to: (i) any use of the Alluxio Software in combination with any equipment, software, data or any other materials where the infringement would not have occurred but for such combination; (ii) any modification to the Alluxio Software by a party other than Alluxio where the infringement would not have occurred but for such modification; (iii) the use of the Alluxio Software by Customer (or any third party) in a manner not in accordance with the applicable Alluxio user documentation or the terms of this Agreement (or any other agreement) where the infringement would not have occurred but for such use; (iv) any Third Party Software; or (v) the continued use of the Alluxio Software after Alluxio has provided substantially equivalent non-infringing software.
NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THIS AGREEMENT, The provisions of this SECTION 7 state the entire liability and obligations of Alluxio and the Exclusive remedy of CUSTOMER OR ANY CUSTOMER PARTY with respect to any actual or alleged MISAPPROPRIATION, VIOLATION AND/OR infringement of any prOPRIETARY AND/OR INTELLECTUAL PRoperty rights ARISING OUT OF OR IN CONNECTION WITH this Agreement. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7 ALLUXIO EXPRESSLY DISCLAIMS ANY OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER AND/OR ANY OTHER PARTY FROM ANY CLAIM, DEMAND, ACTION OR THREATENED ACTION.
8. Limitation of Liability.
8.1 EXCEPT FOR BREACH OF THE SCOPE OF THE LICENSE GRANTS HEREUNDER OR FOR BREACH OF NON-DISCLOSURE OBLIGATIONS HEREUNDER, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS OF DATA, LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE, OR WILLFUL, MISCONDUCT, BREACH OF THE SCOPE OF THE LICENSE GRANTS HEREUNDER, OR FOR BREACH OF NON-DISCLOSURE OBLIGATIONS HEREUNDER, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO ALLUXIO UNDER THIS AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRIOR TO THE ACCRUAL OF THE FIRST CLAIM.
8.2 SECTION 8 WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9. Term and Termination.
9.1 Term and Termination. Unless terminated as provided in this Agreement, the term of this Agreement will commence on the Effective Date and will continue for a period of five (5) years following the Effective Date. Thereafter, this Agreement may be renewed and the term extended for one or more additional one year periods upon the mutual written agreement of the parties. Thereafter, this Agreement may be renewed and the term extended for one or more additional Subscription Periods at the mutual agreement of the parties. Either party may terminate this Agreement for cause upon written notice: (i) if the other party breaches this Agreement in any material respect and does not remedy such breach within 30 days after its receipt of written notice of such breach; or (ii) if the other party terminates its business activities or becomes insolvent, admits in writing to inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority.
9.2 Effect of Termination. Upon any expiration or termination of this Agreement: (i) all rights and licenses granted to Customer under this Agreement will immediately terminate; and (ii) each of Customer and Alluxio will promptly return to one another all of the other party’s Confidential Information then in its possession or destroy all copies of Confidential Information, at the other party’s sole discretion and direction, provided, however, that each party may retain sufficient copies of the Confidential Information of the other party solely as may be required for compliance with applicable quality assurance requirements, which requirements may not include any dissemination to third parties without the prior consent of the Disclosing Party, and provided that such retained Confidential Information remains subject to the requirements of Section 5 and are used for no other purpose. Each of Customer and Alluxio will immediately confirm in writing that it has complied with Section 9.2(ii) if requested by the other party. The following Sections will survive any expiration or termination of this Agreement: 1, 2.2, 2.3, 4, 5, 6.3, 7 (solely to the extent that a claim is raised based on use during an active Subscription Period, and limited to damages accrued during the Subscription Period), 8, 9.2 and 10.
10. General Provisions.
10.1 Entire Agreement and Conflicts. This Agreement, each applicable Order Form and all exhibits to this Agreement, all of which are incorporated herein by reference, sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions and understandings, written or oral, including any Customer purchase order, with respect to such subject matter and all past dealing or industry custom. For clarity, this executed Agreement supersedes any click wrap, shrink wrap or similar type of instrument for Alluxio Software, Support, Professional Services or Training provided by Alluxio to Customer before or after the Effective Date of this Agreement. In the event of a conflict between the terms and conditions of this Agreement, a Professional Services Agreement (if any) and a Training Agreement (if any): (i) the terms and conditions of this Agreement will control.The terms on any purchase order, confirmation, or similar document submitted by Customer to Alluxio will have no effect and are hereby rejected. In the event of any conflict or inconsistency between the terms and conditions of this Agreement and the terms of any Order Form, the terms and conditions of this Agreement shall govern, and the conflicting or inconsistent provision in the Order Form will have no force or effect unless expressly stated otherwise in the Order Form.
10.2 Independent Contractors. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
10.3 Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred or assigned by either party, except that either party may assign this Agreement to a successor in interest in the event of a merger, acquisition or sale of all or substantially all of the assets of the applicable party. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
10.4 Third Party Software. Notwithstanding any terms to the contrary in this Agreement, Customer acknowledges and agrees that the Alluxio Product contains Third Party Software. Customer’s use of the Third Party Software is subject to the applicable third party license terms and such Third Party Software is not licensed to Customer under the terms of this Agreement. Further, Customer hereby acknowledges that such third party suppliers disclaim and make no representation or warranty with respect to such Third Party Software or any portion thereof, and assume no liability for any claim that may arise with respect to such Third Party Software or Customer’s use or inability to use the same.
10.5 Amendments and Waivers. No modification, addition or deletion or waiver of any rights under this Agreement will be binding on a party unless made in writing, clearly understood by the parties to be a modification or waiver and signed by a duly authorized representative of each party. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
10.6 Notices. Any notice or communication required or permitted to be given hereunder must be in writing signed or authorized by the party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by confirmed email, confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as identified on this Agreement or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered.
10.7 Force Majeure. Except for payments, neither party will be responsible for any failure to perform or delay (except for payment obligations) attributable in whole or in part to any cause beyond its reasonable control, including but not limited to Acts of God, government actions, war, civil disturbance, insurrection, sabotage, labor shortages or disputes, subcontractors, transportation difficulties or shortage of energy, raw materials or equipment. In the event of any such delay the date of delivery will be deferred for a period equal to the time lost by reason of the delay.
10.8 Section Headings. The section headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement.
10.9 Attorneys’ Fees: In any action to enforce this Agreement, the prevailing party will be entitled to costs and attorneys’ fees from the non-prevailing party.
10.10 Governing Law; Venue. This Agreement is made and will be governed by and construed in accordance with the laws of the State of California, excluding its choice of law principles to the contrary. The parties agree that the venue for any dispute, obligation or action of any kind arising under this Agreement will be in the state or federal courts located in the County of Santa Clara, California, and the parties irrevocably consent to the exclusive jurisdiction of the state and federal courts of the state of California for any dispute, obligation or action hereunder and agree not to commence or prosecute any suit, proceeding or claim hereunder, except in such courts.
10.11 Severability. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
- “Business day” means Monday through Friday (Customer Local Time), excluding holidays observed by Alluxio.
- “Business hours” means 9:00 a.m. to 5:00 p.m. (Customer Local Time) on Business Days.
- “Support contact” means designated Customer personnel
- “Supported cluster” means clusters running Alluxio Products subject to this Agreement.
2.1 Performance. Alluxio will perform the Support in a timely and professional manner using qualified and experienced personnel.
2.2 Cooperation. Customer will cooperate in good faith with Alluxio in the performance of the Support including, but not limited to: (a) providing access to the Alluxio Product licensed pursuant to this Agreement, (and related systems); (b) providing assistance with break-fix issues related to the installation, upgrade (when and if available), and configuration of the Alluxio Product; (c) ensuring that the Alluxio Product is configured correctly and available for data collection, cluster management and patch deployment; and (d) providing any reasonably requested assistance and information and (c) allow Alluxio to audit the amount of Nodes utilized on a quarterly basis.
2.3 Support Contacts. Customer will ensure that its personnel who contact Alluxio are: (a) knowledgeable about the operation of the Alluxio Product and the hardware on which the Alluxio Product are installed; and (b) qualified and trained with respect to the Alluxio Product.
2.4 Supported Versions. Alluxio will provide support on the versions of Alluxio Product according to the then-current Support Lifecycle Policy as updated by Alluxio from time to time, a current copy of which is attached hereto as Exhibit A-1.
2.5 Exclusions. The Support do not include: (a) the installation or removal of the Alluxio Product; (b) initial or additional use case design; (c) architecting custom solutions or performance tuning; (d) architectural design reviews; (e) visits to Customer’s site; or (f) training. Alluxio has no obligation to correct any problems with the Alluxio Product or any issues resulting from: (i) use of the Alluxio Product not in accordance with the license agreement or the user documentation applicable thereto; (ii) defects or errors in any program or program version not specified by Alluxio as Alluxio Product; (iii) defects or errors in any hardware; or (iv) any acts or omissions of Customer and/or any third party.
2.6 Diagnostic Function. The Alluxio Product may contain disabling codes that prevent use of the Alluxio Product outside of the authorized scope and that may contain certain diagnostic functionality such that that the Alluxio Product reports to Alluxio certain general metric and diagnostic information about Customer’s use of the Alluxio Product such as configuration files, node count, software versions, log files and other information regarding Customer’s environment, but in no event will such metric and diagnostic information include any of Customer’s content such as user names, passwords or other data.
2.7 Contacting Technical Support. Support Contact(s) may contact Alluxio technical support by opening a case via the Alluxio support email during Business Hours to request information regarding the use, configuration or operation of the Alluxio Product running on any Supported Cluster. Technical support services are relegated to break/fix issues on Alluxio Product. Technical Support services include access to Alluxio Support email and response to break/fix questions pertaining to:
- Best practices for setting up and configuring a cluster suitable for running Alluxio, including:
- Choice of hardware and operating system.
- Configuration of Alluxio in the cluster.
- Installation, deployment and upgrading Alluxio.
- Operational support for a cluster running the Alluxio Product, including:
- Best practices for loading data into the cluster.
- Identifying, diagnosing and fixing errors in Alluxio Product.
- Tools and techniques for monitoring a Supported cluster.
- Preventing and recovering from failures and troubleshooting.
- Problem diagnosis and resolution, including:
- Problem isolation and diagnosis of errors in the Alluxio Product
- Patches and workarounds to fix bugs in the Alluxio Product
2.8 Case Resolution. When Support Contact wishes to engage Alluxio technical support, Support Contact will contact Alluxio technical support via the Alluxio customer email, with follow-up at Customer’s option by telephone in case of a priority 1 issue (unless Support is email only Support). When reporting a problems or issue, Support Contact must provide the following information: (a) a description of the problem; (b) the step-by-step process to reproduce the problem; (c) the error messages associated with the problem; (d) any additional data available or required as determined by Alluxio, including, but not limited to stack traces, configuration settings and related information; and (e) information necessary to classify the priority of the problem. Alluxio will classify all problems in good faith according to the following priority levels:
|CASE PRIORITY DEFINITIONS|
|CASE PRIORITY||ALLUXIO RESPONSIBILITIES||CUSTOMER RESPONSIBILITIES||DEFINITION|
|P1||FOR EMAIL ONLY SUBSCRIPTION: Commercially reasonable efforts FOR 8×5 SUBSCRIPTION: Resources dedicated Monday through Friday during customer’s local business hours until a resolution or workaround is in place. FOR 24×7 SUBSCRIPTION: Resources dedicated 24×7 until a resolution or workaround is in place||FOR EMAIL ONLY SUBSCRIPTION: Commercially reasonable efforts FOR 8×5 SUBSCRIPTION: Designated resources that are available Monday through Friday during customer’s local business hours. Ability to provide necessary diagnostic information. FOR 24×7 SUBSCRIPTION: Designated resources available 24×7 until a resolution or workaround is in place. Ability to provide necessary diagnostic information||Total loss or continuous instability of functionality or inability to use a feature on a production system. Development systems do not apply here. Inability to use a feature or functionality that is currently relied upon for production functionality.|
|P2||FOR EMAIL ONLY SUBSCRIPTION: Commercially reasonable efforts FOR 8×5 SUBSCRIPTION: Resources available Monday through Friday during local business hours until a resolution or workaround is in place FOR 24×7 SUBSCRIPTION: Resources dedicated 24×7 until a resolution or workaround is in place||FOR EMAIL ONLY SUBSCRIPTION: Commercially reasonable efforts FOR 8×5 SUBSCRIPTION: Resources available Monday through Friday during local business hours until a resolution or workaround is in place. Ability to provide necessary diagnostic information. FOR 24×7 SUBSCRIPTION: Designated resources available 24×7 until a resolution or workaround is in place. Ability to provide necessary diagnostic information||Performance degraded or severely limited but not causing a total loss of functionality. Inability to deploy a feature that is not currently relied upon in a production environment.|
|P3||FOR EMAIL ONLY SUBSCRIPTION: Commercially reasonable efforts FOR 8×5 and 24×7 SUBSCRIPTION: Resources available Monday through Friday during local business hours until a resolution or workaround is in place||FOR EMAIL ONLY SUBSCRIPTION: Commercially reasonable efforts FOR 8×5 and 24×7 SUBSCRIPTION: Resources available Monday through Friday during local business hours until a resolution or workaround is in place. Ability to provide necessary diagnostic information.||General questions. Workaround in place for Priority 1 and Priority 2 issues.|
|P4||Solid understanding of the customer request documented in our systems for reviewed by Product Marketing||Use cases for the feature request and specifics on requested functionality||Feature Requests|
|CASE PRIORITY||INITIAL RESPONSE TARGET 24×7 SUBSCRIPTION||UPDATE FREQUENCY TARGET 24×7 SUBSCRIPTION|
|P1||Within 2 hours||Updated every 4 hours|
|P2||Within 4 hours||Updated every business day|
|P3||Within 16 hours||Updated every 3 business days|
|P4||Within 48 hours||N/A, feature request|
|CASE PRIORITY||INITIAL RESPONSE TARGET 8×5 SUBSCRIPTION||UPDATE FREQUENCY TARGET 8×5 SUBSCRIPTION|
|P1||Within 2 business hours||Updated every 4 business hours|
|P2||Within 4 business hours||Updated every business day|
|P3||Within 2 business days||Updated every 3 business days|
|P4||Within 4 business days||N/A, feature request|
|CASE PRIORITY||INITIAL RESPONSE TARGET EMAIL ONLY SUBSCRIPTION||UPDATE FREQUENCY TARGET EMAIL ONLY SUBSCRIPTION|
|P1||Commercially reasonable efforts||Commercially reasonable efforts|
|P2||Commercially reasonable efforts||Commercially reasonable efforts|
|P3||Commercially reasonable efforts||Commercially reasonable efforts|
|P4||N/A, feature request||N/A, feature request|
If Alluxio provides a work-around that is not reasonably acceptable to Customer but corrects the problem, the priority level of the Problem will be reduced to priority 3.
Initial Response is satisfied with either an inbound customer phone call answered, a phone call placed to the Customer or a public comment to the case where Customer is also notified in writing, with an action plan on the initial steps required to begin the problem resolution process. Given the heightened urgency around Priority 1 and 2 cases, this will often include an invitation to participate in a screen share session to shorten time to problem isolation.
Alluxio Support acknowledges that customer satisfaction is often heavily influenced by the time it takes to get to a resource capable of debugging their issue. To that end, Alluxio Support level one resources have skills which often include:
- Linux or Unix system admin
- Java development skills or at a minimum ability to debug Java code
- Experience supporting large scale distributed systems
- Experience supporting File Systems
If Support Contact experiences difficulties contacting Alluxio technical support, is not receiving the level of support that is expected or desires to escalate a Problem beyond its current level, Support Contact may escalate the support incident via the Alluxio Support email.
Support Lifecycle Policy
The Alluxio Support Lifecycle Policy outlines the support guidelines for Alluxio Products.
|Alluxio Manager, Alluxio Community Edition (ACE), Alluxio Enterprise Edition (AEE)||Major releases are supported for one year after the General Availability (GA) of that release or six months after the GA date of the following major release (whichever is longer). Bugs and security issues are fixed in the latest minor release of all active major versions.|
For any Professional Services ordered under the Agreement, the following additional terms and conditions will apply. Except as expressly specified or amended herein, the definitions and terms and conditions of the Agreement will apply to all Services provided under this Exhibit and the applicable Statement of Work.
1. Definitions. The following additional terms will have the following meanings:
1.1 “Customer Materials” means any requirements documents, or other information provided to Alluxio by Customer under the applicable Statement of Work to be used by Alluxio to perform the Professional Services. 1.2 “Deliverable(s)” means any documentation or software provided by Alluxio to Customer under the applicable Statement of Work. 1.3 “EULA” means an end user license agreement entered into between Customer and Alluxio whereby Customer is granted a license to use certain Alluxio Products under the terms of such EULA. 1.4 “Pre-Existing Property” means any and all Intellectual Property Rights owned or controlled by Alluxio or its licensors including but not limited to the Alluxio Products, and any and all modifications thereto and derivative works thereof. 1.5 “Professional Services” or “Services” means those professional services set forth in a Statement of Work to be performed by Alluxio under this Agreement. 1.6 “Specifications” means those functional and/or technical specifications, if any, set forth in the applicable Statement of Work as to any Deliverables.
2. Statements of Work; Ownership; License.
2.1 Statement of Work (SOW). In order for Alluxio to perform any Professional Services for Customer, the parties must each sign a Statement of Work which will incorporate the terms of the Agreement, including this Exhibit, by reference. One or more Statements of Work may be entered into by mutual written consent of the parties during the term of this Agreement. To the extent that a conflict arises between the terms of any Statement of Work and the terms of this Agreement, the terms and conditions of this Agreement will govern. All Statements of Work will include: (i) a description of the Professional Services and/or Deliverables; (ii) the estimated schedule for the performance of the Professional Services; and (iii) the fees for performance of the Professional Services specified therein. Customer shall advise Alluxio in writing of the individuals with whom Alluxio will interface for each Statement of Work. Customer and Alluxio shall develop appropriate procedures to assure timely and appropriate coordination of efforts in support of the Professional Services. Customer shall provide information and assistance as is reasonably required to permit Alluxio to complete each Statement of Work.
2.2 Ownership of Pre-Existing Property. As between the parties, Alluxio or its licensors owns all right, title and interest in and to the Pre-Existing Property (including, all Intellectual Property Rights embodied therein).
2.3 Ownership of Customer Materials. Customer or its licensors owns all right, title and interest in and to the Customer Materials (including, all Intellectual Property Rights embodied therein).
2.4 Ownership of Deliverables. All Deliverables will be the property of Alluxio or its licensors.
2.5 Licenses. Unless otherwise expressly agreed in a Statement of Work, Customer shall have the following limited, personal, revocable, non-transferable, non-sublicensable, non-exclusive license rights to use any Deliverable: (i) if there is no EULA in place relating to the Deliverables, then Customer’s use of the Deliverable is limited to internal use solely to evaluate whether to enter into a license agreement with Alluxio for the license of the Software; or (ii) if there is a EULA in place between Customer and Alluxio, then Customer will have the same use rights to the Deliverables as specified for the Alluxio Products and documentation set forth in the applicable EULA.
3. Professional Services Fees. The fees associated with the performance of the Professional Services will be as set forth in the Statement of Work or other similar ordering document applicable to such Professional Services. Unless otherwise specified in the applicable Statement of Work, all Services shall be provided on a time and materials basis at Alluxio’s then current fees and charges therefor. However, any change in billing rates shall not affect the rates set forth in any Statement of Work in effect at the time of the rate increase. Customer will be responsible for reasonable travel and related expenses, which includes, without limitation, travel, lodging, meals and other incidental expenses, incurred as a result of delivering the Professional Services. Travel time is billable on a door to door basis. The Professional Services fees do not include taxes, and Customer will be responsible for payment of any and all sales, use, excise, import, export, value added or similar taxes and all government permit or license fees, and all customs, duty, tariff and similar fees levied upon the Work Product and the provision of the Professional Services under this Agreement, and any costs associated with the collection or withholding thereof, including penalties and interest. Unless otherwise specified in the applicable Statement of Work, Alluxio will invoice Customer on a monthly basis for all Services, reimbursements and other payments due under the applicable Statement of Work. Alluxio will invoice Customer for all fees and expenses associated with the Professional Services as specified in the applicable Statement of Work or other ordering document applicable to such Professional Services and Customer will pay such invoices in accordance with Section 4 (Financial Considerations) of the Agreement.
4. Warranty; Remedy; Disclaimer.
4.1 Limited Warranty. Alluxio represents and warrants that: (i) it will perform the Services in a professional manner and consistent with industry standards; and (ii) with respect to any Deliverables for which Specifications are set forth in the applicable Statement of Work, for a period of fifteen (15) days commencing on the date that such Deliverable is delivered by Alluxio to Customer, such Deliverable, when properly used, will materially conform to the functional and/or technical criteria set forth in the applicable Specifications.
4.2 Sole and Exclusive Remedy. For any Services or Deliverables that do not conform to the warranty set forth above, Customer must notify Alluxio within fifteen (15) days of the delivery of any non-conforming Services, and, as Alluxio’s sole obligation and Customer’s exclusive remedy, Alluxio will: with regard to Section 4.1(i), use its commercially reasonable efforts to reperform the affected Service, and for Section 4.1(ii), use commercially reasonable efforts to correct any failure of an Deliverable to materially conform to the functional and/or technical criteria set forth in the applicable Specifications; provided, that Alluxio’s obligation to so correct or reperform is subject to receipt by Alluxio from Customer, within thirty (30) days from the date that such Service Deliverable was first delivered by Alluxio to Customer, of written notice that sets forth the details of such failure and such other information as is reasonably necessary to permit Alluxio to verify and reproduce such failure.
4.3 Disclaimer. EXCEPT AS SPECFICIALLY PROVIDED IN THIS SECTION 4, ALLUXIO MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NOR THAT A DELIVERABLE IS ERROR-FREE OR THAT OPERATION OF SUCH WITH BE SECURE OR UNINTERRUPTED, NOR ANY OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN CONNECTION WITH THE SERVICES AND/OR DELIVERABLES PROVIDED HEREUNDER.
5. Indemnification Obligations. Alluxio’s intellectual property infringement indemnity obligations with respect to Deliverable (in the form delivered to Customer by Alluxio) will be as provided for Alluxio Software in Section 7 of the Agreement, and each instance of the term “Alluxio Software” therein will be read as “Deliverable(s)” for the purposes of this Exhibit; provided, however that the remedy specified in Section 7 will be limited solely to Alluxio terminating the Agreement or the Statement of Work under which such infringement occurred, and upon such termination, Customer must, at Alluxio’s option, return or destroy such Deliverable, and Alluxio will provide a refund of all fees paid under the applicable Statement of Work for the infringing Deliverable.
6. Term of Statements of Work. Unless terminated as provided in the Agreement, each Statement of Work expires one year from the initial effective date of such Statement of Work, unless both parties agree in writing to extend the term of the Statement of Work. Any Professional Services included in a purchase order issued by Customer expire one year from the date of such purchase order. For the avoidance of doubt, any subscription or licensing included in such purchase orders with Professional Services expire based on the terms related to those products and are not bound to the terms of this Section. 7. Insurance. During the term of this Agreement, Alluxio will, at its own expense, maintain insurance coverage of the kinds and with the minimum amounts as follows. Alluxio will furnish Certificates of Insurance on industry standard forms upon request but not more than once annually.
Worker’s CompensationStatutory Limits
General Liability$1,000,000 per occurrence, and $2,000,000 general aggregate
For any Training ordered under the Agreement, the following additional terms and conditions will apply. Except as expressly specified or amended herein, the terms and conditions of the Agreement will apply to all Training provided under this Exhibit.
1.1 “Training Materials” means the any physical materials provided in conjunction with any particular Training. 1.2 “Training” means one or more of the training offerings set forth at Alluxio’s web site as may be updated by Alluxio from time to time.
2. Proprietary Rights; Restrictions. All works of authorship, inventions, improvements, methods, processes, formulas, designs, techniques, and information conceived, discovered, developed or otherwise made (as necessary to establish authorship, inventorship, or ownership) by Alluxio, solely or in collaboration with others, in the course of performing the Training will be the sole property of Alluxio. No title to or ownership of any property or any associated intellectual property rights are transferred to Customer under this Exhibit. In addition, Customer may not make recordings of any kind of the Training provided under this Exhibit. Notwithstanding the foregoing, Customer participants attending the Training may retain one copy of the Training Materials for personal use only.
3. Training Services Fees. The fees associated with the performance of the Training will be as set forth in the Order Form or other applicable ordering document. The Training fees do not include taxes, and Customer will be responsible for payment of any and all sales, use, excise, import, export, value added or similar taxes and all government permit or license fees, and all customs, duty, tariff and similar fees levied upon the provision of the Training under this Agreement, and any costs associated with the collection or withholding thereof, including penalties and interest. All fees associated with Training will be invoiced as specified in the applicable Order Form or other applicable ordering document and will be paid in accordance with Section 4 (Financial Considerations) of the Agreement.
3. Warranty; Disclaimer
3.1 Training Warranty. Alluxio represents and warrants that it will perform the Training in a professional manner and consistent with industry standards. For any Training that does not conform to this warranty, Customer must notify Alluxio within five days following the delivery of any non-conforming Training, and as Alluxio’s sole obligation and Customer’s exclusive remedy, Alluxio will, at its option, either: (i) re-perform such non-conforming Training services at no additional charge to Customer; or (ii) refund the fees Customer paid to Alluxio for the portion of the Training services that do not conform to this warranty.
3.2 Disclaimer. EXCEPT AS PROVIDED IN THE FOREGOING, ALLUXIO MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NOR ANY OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN CONNECTION WITH THE TRAINING SERVICES PROVIDED HEREUNDER OR ANY THIRD PARTY SOFTWARE.