These Terms of Service apply to the Software Support Services provided by Basho Technologies, Inc. (“Basho”) to Customer (identified on the Order Form) pursuant to a mutually executed Order Form specifically referencing these Terms of Service. These Terms of Service, the Order Form and any other addenda, or exhibits attached thereto and/or specifically referenced therein together constitute the “Agreement.” In the case of any conflicts between the Terms of Service and an Order Form, the Order Form shall control.
1. DEFINITIONS. The definitions contained in the Order Form are incorporated herein by reference as if set forth in full. Additional terms may be defined elsewhere within the context of the Agreement.
2. SOFTWARE SUPPORT SERVICES. Basho will provide the Services set out in the Order Form.
3. FEES AND PAYMENTS
A. The Service fees are set out in the Order Form, and are due and payable within thirty (30) days of the date of Basho’s invoice. Balances not paid within this time are considered past due.
B. Past due balances are subject to a late payment charge calculated at a rate of the lesser of one and one-half percent (1.5%) per month, or the highest rate permitted by law until paid. Basho may suspend or terminate Services should Customer fail to pay amounts on or before the due date, where such failure is not cured within ten (10) days of receipt of written notice by Basho. Should Basho prevail in any action to collect past due and unpaid fees then, in addition to any and all damages or remedies available to Basho at law or equity, Customer will reimburse Basho for all reasonable fees, costs and expenses (including but not limited to reasonable attorneys’ fees) incurred by Basho to collect any such past due and unpaid amounts. No endorsement or statement to the contrary on any check or payment, or on any letter accompanying any check or payment, or elsewhere will be construed as an accord or satisfaction. All fees are in U.S. Dollars and are non-refundable.
C. Customer will be responsible for any excise, sales, use or other similar tax as required by law, based upon charges or Services rendered pursuant to the Agreement, any of which may be paid by Basho on Customer’s behalf and added to Customer’s invoice. Customer will not be obligated to pay any taxes based on Basho’s net income or property.
4. TERM AND TERMINATION
A. The Terms of Service are effective on the Effective Date of the first Order Form executed hereunder, and will remain in full force and effect until the expiration or termination of all Order Forms executed hereunder. In the event of the termination of the underlying End User License Agreement for the Software, this Agreement will concurrently terminate. Either party may terminate this Agreement if the other party has breached any material provision of this Agreement, or becomes insolvent, invokes as a debtor any laws relating to the relief of debtors’ or creditors’ rights, or has such laws invoked against it as a debtor. Such termination will be effective thirty (30) days after notice (except where a shorter cure period is specified herein), unless such default or breach has been cured within the notice period. Upon termination due to Customer’s breach of the Agreement or the underlying End User License Agreement, Basho will be entitled to accelerate and invoice for any remaining fees due for the Support Term, and such amounts due will survive expiration/termination.
B. Surviving Terms. In the event of termination or upon expiration of this Agreement, Sections 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 19, 20 hereof will survive and continue in full force and effect.
5. SOFTWARE SUPPORT SERVICE EXCLUSIONS. The Services and Fees do not include the following:
A. Support of the Software if it has been modified or repaired other than by Basho, or used in a manner inconsistent with the Documentation or End User License Agreement;
B. Specification changes or services connected with the relocation of the Software;
C. Support of Software in combination with other products or materials not furnished by Basho or in combination with other software or materials furnished by, but not combined by, Basho (where such combinations are not reasonably foreseeable and/or are in violation of the Documentation, End User License Agreement or other applicable Basho or third party usage guidelines);
D. Backing up or restoring programs and/or data;
E. Keying, importing, converting or manipulation of data;
F. On-site or formal classroom training on use and support of the Software;
G. Creation of any non-standard reports; or
H. Installation of the Software.
Subject to mutual agreement of Basho and Customer, Basho may perform any of the foregoing services pursuant to separate or additional written agreement, and subject to additional fees and charges as set out therein.
6. CUSTOMER OBLIGATIONS AND REPRESENTATIONS
A. Customer will make available to Basho a qualified System Administrator to act as Basho’s single point of contact for the provision of Services and who will (i) be available to assist Basho by answering business, technical and operational questions, providing requested documents, guidelines and procedures in a timely manner, and providing timely approvals and/or access to other information, as reasonably necessary to provide the Service; (ii) participate in progress updates and other Service-related meetings; and (iii) contribute to software and system testing.
B. Customer will be responsible for the performance of its employees and agents and for the accuracy and completeness of all data and information provided by Customer to Basho hereunder. Basho will be entitled to rely on all decisions and approvals of Customer.
C. Customer shall maintain a proper network connection for any node used with the Software being supported by Basho hereunder. Customer is responsible for properly backing up all Customer data prior to Basho’s provision of Services.
D. Customer will permit Basho remote access to, and use of, its authorized copy of the Software for the sole purpose of providing Customer with the Services. Customer agrees that, in performing the Services, Basho or its agents may collect and use technical usage information pertaining to Customer’s use of the Software. Basho may use this information to perform the Services, verify proper authorization of all copies of the Software and to improve Basho’s products or services.
E. Community Resources. Basho provides all users of Riak access to certain Community Resources (e.g. Community IRC Chat) free of charge. Basho may discontinue or modify these Community Resources in its sole discretion and with or without advanced notice. Customer is not required to use Community Resources in order to utilize the Services or Software. Customer may post information, comments, questions, suggestions and other information via the Community Resources, and such information does not constitute Confidential Information. Customer is solely responsible for the material that it posts on or using the Community Resources, and represents and warrants that it has all legal rights to post or disclose such information. Customer will defend, indemnify and hold Basho harmless from and against any and all claims, damages, penalties or fees (including but not limited to reasonable attorney’s fees) stemming from or related to any third party claim that Customer community postings violates any rights of the third party.
F. Customer covenants and agrees that it is legally authorized to enter into this Agreement and it will at all times comply with applicable laws and regulations pertaining to this Agreement.
7. SOFTWARE, UPDATES, FIXES AND WORKAROUNDS. The Software identified on the Order Form is provided pursuant to a separate End User License Agreement (also, “EULA”). Nothing contained herein shall be interpreted to amend, modify or supplement the EULA, and Customer agrees that all Fixes, Workarounds or Services that lead to or result in a change or revision to the Software code shall be deemed to be part of the Software and subject to the terms and conditions of the applicable EULA.
8. EXPORT. The term “technical data” used in this section is defined in the United States Export Administration Regulations (“Regulations”). To the extent any tangible or intangible technical data provided under this Agreement are subject to U.S. export laws and the Regulations, each party agrees that it will not use, distribute, transfer, or transmit technical data provided by the other party under this Agreement except in compliance with U.S. export laws and the Regulations. Each party will comply with the Foreign Corrupt Practices Act, as amended, and the rules and regulations thereunder.
A. Independent Contractor. The parties agree that Basho is acting as an independent contractor with respect to the Services hereunder and not as an employee or agent of Customer. Basho shall be solely responsible for the payment of all compensation to its employees, including provisions for employment taxes, workmen’s compensation and any similar taxes associated with employment of Basho’s personnel. Basho may engage third party vendors or subcontractors to perform some or all of the Services, provided that Basho will remain liable for the performance of its vendors and/or subcontractors hereunder.
B. Non-Solicitation. During the term hereof and for a period of twelve (12) months thereafter, neither party will directly or indirectly solicit for employment or employ any employee of the other party who performed any work in connection with or related to the Services, without the written consent of the other party. The foregoing restriction shall not apply to any employees of the other party who respond to a general posting for employment.
10. CONFIDENTIAL INFORMATION
A. Definition. “Confidential Information” means any non-public information of a party or information that a party treats or reasonably designates as confidential, or that a reasonable party should understand is confidential based on the facts and context of disclosure, including, but not limited to, information relating to a party’s existing or planned: business activities, employees, customers, prices, financial affairs, technology, software, marketing or sales plans, trade secrets, processes or technical/engineering data. Without limiting the foregoing, Basho Confidential Information includes, but is not limited to, the pricing and other commercial terms contained in the Order Form.
B. Obligations. Either Party may disclose (Disclosing Party) to the other Party (Receiving Party) Confidential Information. The Receiving Party may use the Disclosing Party’s Confidential Information only as reasonably necessary perform or receive the Services and to comply with the terms and obligations set out in this Agreement. Confidential Information will be kept confidential by the Receiving Party, and shall not be disclosed, in whole or in part, to any person other than its affiliates, officers, directors, employees, subcontractors, agents, or representatives (collectively, “Representatives”) who need to know such Confidential Information for the purpose of negotiating, executing, and implementing this Agreement, and prosecuting or defending any claims hereunder. The Receiving Party agrees to inform its Representatives of the confidential nature of such information and to direct such persons to treat Disclosing Party Confidential Information in accordance with these terms, and shall be liable for any breach hereof by its Representative(s). The Receiving Party shall protect Confidential Information in the same manner as it protects its own confidential information, but in any case using no less than a reasonable degree of care.
C. Exceptions. The obligations of the Receiving Party under this Section will not apply to information that the Receiving Party can demonstrate (i) was in its possession at the time of disclosure and without restriction as to confidentiality, (ii) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the Receiving Party, (iii) has been received from a third party without restriction on disclosure and without breach of agreement by the Receiving Party, or (iv) is independently developed by the Receiving Party without regard to the Confidential Information of the Disclosing Party. In addition, the Receiving Party may disclose Confidential Information as required by law, court order or regulation; provided that the Receiving Party (a) gives the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or other appropriate remedy, (b) discloses only such Confidential Information as is required, and (c) uses commercially reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed.
D. Feedback. “Feedback” means feedback, suggestions, posts or other comments provided by Customer to Basho hereunder and pertaining to the Services, and Software, their performance, and suggested enhancements. Basho has not agreed to and does not agree to treat as confidential any Feedback submitted by Customer as it pertains to the Service or Software, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Basho’s right to use, disclose, publish, or otherwise exploit any Feedback or public postings without compensation to Customer.
11. LIMITED WARRANTY.
A. Service Level Warranty. The Services will be performed by qualified personnel in accordance with the Service Level Agreement (“SLA”) set forth in the Order Form. The SLA contains Basho’s sole and exclusive warranty pertaining to the Service, and the SLA Credit(s) is Customer’s sole and exclusive remedies for any failure of the Services to perform as set out therein, and/or due to any Service failure or delay to which the SLA expressly applies.
B. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN THE SLA, BASHO DOES NOT MAKE OR GIVE ANY REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND, WHETHER SUCH REPRESENTATION, WARRANTY, OR CONDITION BE EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, QUALITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
12. LIMITATION OF LIABILITY.
A. Exclusion of Damages. EXCEPT FOR A BREACH OF CONFIDENTIALITY OBLIGATIONS SET FORTH HEREIN, In no event shall EITHER PARTY be liable or obligated to THE OTHER or any third party in connection with the Services, OR this Agreement, whether based on any contract, warranty, tort (including, without limitation negligence), strict liability or other legal or equitable theory, for any loss of profits, loss of business, loss of data or use thereof, interruption of business, or for any special, exemplary, incidental, consequential, punitive or other indirect damages of any kind, even if IT has been advised in advance of the possibility of such damages, or such damages could have reasonably foreseen by IT.
B. Maximum Liability. In no event shall Basho’s liability to Customer or any other person or entity arising out of or in connection with this Agreement or the Services exceed, in the aggregate, the lesser of (i) Fifty Thousand U.S. Dollars ($50,000) or (ii) the total fees paid by Customer to Basho for the Services with respect to which such liability relates, whether such liability is based on an action in contract, warranty, strict liability or tort (including, without limitation, negligence) or otherwise.
C. Applicability. The limitations specified in this Section 12 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
D. Limitations Period. No action arising out of or in connection with this Agreement or any of the Services provided hereunder may be brought by either party more than one (1) year after the cause of action has accrued.
13. OWNERSHIP OF INTELLECTUAL PROPERTY.
A. Basho Materials. Customer acknowledges that as part of performing the Services, Basho may use certain software development tools, know-how, processes, methodologies, templates, frameworks, algorithms or software developed or to be developed by or on behalf of Basho, which have been and/or will be reused by Basho for other customers (collectively, the “Basho Materials”). Notwithstanding anything to the contrary in this Agreement, Basho shall retain all right, title and interest in and to Basho Materials and, subject to Customer’s payment in full for the related Service, Basho hereby grants to Customer a non-exclusive, royalty-free, non-transferable limited license to use the Basho Materials, if any, solely in conjunction with the use/receipt of such Services, and only for the lesser of: i) the Support Term or ii) until such time as the Basho Materials are separated from the Services. Customer agrees not to reverse engineer or disassemble such Basho Materials
B. Third Party Materials. Customer’s interest in and obligations with respect to any third party software or other materials incorporated in the Services will shall be determined in accordance with the agreements and policies of such third party(ies) or as otherwise agreed in writing.
C. General Knowledge and Skill. Notwithstanding anything to the contrary in this Agreement, Customer agrees that Basho, its employees and agents shall be free to use and employ their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques or skills gained or learned during the course of the Services performed hereunder. Customer understands and agrees that Basho may perform similar services for third parties using the same personnel that Basho utilizes for rendering Services for Customer hereunder.
D. No Licenses. No licenses will be deemed to have been granted by either party to any of its patents, trade secrets, trademarks, copyrights, or other intellectual property except as otherwise expressly provided in this Agreement.
E. Software. The Software identified on the Order Form is governed solely and exclusively by the terms of the applicable EULA. Notwithstanding anything to the contrary elsewhere in the Agreement, nothing contained herein shall be deemed or interpreted to amend, modify or supplement the EULA, and nothing contained herein shall be interpreted or deemed to convey any right, license and/or title in or to the Software to Customer or any other party.
14. ADVERTISING. Customer hereby authorizes Basho to list Customer’s name on Basho’s website disclosing that Basho has provided the Services to Customer, and to use Customer’s name in any standard customer listing (or partial customer listing) published by Basho.
15. FORCE MAJEURE. Neither party shall be in default of any obligation (other than a payment obligation(s)) due to causes beyond such party’s reasonable control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation, facilities, fuel, energy, labor or materials, provided that the party has exercised reasonable care to mitigate the impact of a Force Majeure event.
16. NOTICES. Notices provided hereunder shall be effective when delivered, shall be in writing, and shall either be: 1) delivered in person, 2) sent by certified mail or reputable courier, or 3) sent via electronic mail (if provided) to the address provided on the Order Form. Each Party will give notice to the other of any change of address five (5) business days in advance of the effective date of the change.
17. MODIFICATION. The provisions of this Agreement shall not be changed, modified or waived in any way except when agreed in writing by an instrument signed by both parties and stating expressly that it constitutes a modification of this Agreement. Without limiting the foregoing, Basho may revise these Terms of Service and all such revisions will be effective upon posting provided that no revision will be effective during the then current Support Term of Customer’s Order Form.
18. SEVERABILITY. If any term or provision of this Agreement shall be held to be invalid, void or unenforceable, then the remainder of this Agreement shall not be affected, impaired or invalidated, and each such term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
19. GOVERNING LAW, JURISDICTION AND VENUE. This Agreement shall be governed by and construed in accordance with the laws of the state of Washington, excluding: (i) its conflicts of laws principles; (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods; and (iv) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980. Each party submits to the jurisdiction of the state or federal courts sitting in King County in the state of Washington, and each party agrees that it will bring any claim, action, lawsuit or proceeding arising out of or relating to this Agreement solely in a state or federal courts sitting in King County Washington. Each party waives any right it may have to a trial by jury with respect to any action or proceeding arising out of or relating to this Agreement.
A. Assignment. No interest herein shall be transferred in any manner by either party without the prior written consent of the other party except either party may, upon prior written notice to the other party (but without any obligation to obtain the consent of such other party), assign this Agreement to any entity who succeeds (by purchase, merger, operation of law or otherwise) to all or substantially all of the capital stock, assets or business of such party, if such entity agrees in writing to assume and be bound by all of the obligations of such party under this Agreement.
B. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
C. Section Headings. The section headings in this Agreement are inserted for the purpose of convenience. They do not purport to, and shall not be deemed to define, limit or extend the scope or intent of the sections to which they pertain.
D. Entire Agreement. The Agreement constitutes the complete and exclusive statement of the agreement between the parties and supersedes all proposals, oral or written, and all other prior or contemporaneous communications between the parties relating to the subject matter herein. Without limiting the foregoing, no purported modification of this Agreement by Customer or any terms or conditions of a purchase order or other similar document(s) shall have any force or effect, regardless of any statement to the contrary, unless signed by both parties.
E. No Third Party Beneficiaries. This Agreement shall not confer any rights or remedies upon any person other than the parties and their respective successors and permitted assigns.
F. Expenses. Except as otherwise provided in the Agreement, each party shall bear its own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby.
G. Waiver. No waiver by either party of any right or remedy hereunder shall be valid unless the same shall be in writing and signed by the party giving such waiver. No waiver by either party with respect to any default or breach hereunder shall be deemed to extend to any prior or subsequent default or breach hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
H. Non-Exclusivity. Subject to confidentiality and intellectual property terms and conditions, this Agreement shall not preclude or limit in any way the right of either party to enter into similar agreements with third parties or to develop for itself and others services similar to those described herein.