1. SERVICES.
- Services. Services. Subject to the terms and conditions of this Agreement, GridGain Systems, Inc. (“GridGain”) will provide support services to Customer as set forth in this Section 1 (the “Services”) during the Term set forth in the Order Form.
- Scope of Services. During the Term, GridGain will use commercially reasonable efforts to provide support services to Customer regarding Apache Ignite (“Software”) as follows:
- web and email-based support to provide (i) responses to questions about the configuration and performance of Customer’s system and (ii) troubleshooting for performance or reliability issues. (4-hour initial response time, either 24x7 or 9AM-5PM (PST weekdays), as indicated in the Order Form);
- a two-hour initial consultation with GridGain’s support engineering team to review Customer’s production environment;
- identify defects and product limitations & known workarounds; and;
- two named technical contacts.
- Support Exclusions. Customer acknowledges that the Services to not include maintenance releases, patches, onsite visits, bug fixes/new workarounds, telephone-based support (except for the consultation described above), access by GridGain to Customer’s environment, professional services, or support related to third party software (e.g., software other than Apache Ignite) or components. GridGain may in its sole discretion, but shall not be obligated to, contribute bug fixes or patches to the Apache Ignite project.
- Customer Obligations. Customer shall (i) use the current version of the Software; and (ii) provide GridGain with all information reasonably requested from time to time relating to Customer’s use of the Software or Services, including information on Customer’s hardware, network, systems, and any related Third-Party Materials. Customer shall designate and maintain throughout the Term one or more individuals to serve as its primary point of contact for day-to-day communications, consultation, and decision-making regarding the Services (each, a “Technical Contact”). The Technical Contact(s) shall be the sole contact(s) between Customer and Provider in connection with day-to-day matters relating to the provision of Services and be responsible for reporting Incidents, providing day-to-day consents and approvals on behalf of Customer, and communicating with and providing timely and accurate information and feedback to Provider in connection with the Services.
2. FEES AND PAYMENT TERMS. Customer shall pay each invoice in the manner specified in the applicable Order Form. Customer will also pay all related taxes and withholdings, except for those based on GridGain’s net income. If Customer is required to withhold taxes, then Customer will forward any withholding receipts to GridGain. All amounts are due in the currency stated on the invoice and in full 30 days after the date of GridGain’s invoice, with interest accruing thereafter at the lesser of 1% per month. If Customer fails to pay fees in accordance with this Section, GridGain may suspend fulfilling its obligations under this Agreement until such payment is received by GridGain. GridGain will be reimbursed for expenses incurred that are reasonable and that have been approved in advance by Customer.
3. INTELLECTUAL PROPERTY RIGHTS. Customer acknowledges and agrees that the Software is the open source software maintained and downloadable from the Apache Software Foundation at https://ignite.apache.org, under the terms of the Apache License, Version 2.0 which can be viewed at http://www.apache.org/licenses. The Software is not provided or licensed under this Agreement. Notwithstanding the foregoing, GridGain will remain the sole and exclusive owner[s] of all right, title, and interest in and to the Services and all intellectual property rights thereto.
4. WARRANTY & DISCLAIMER.
4.1 Warranty. GridGain shall perform Services in a professional and workmanlike manner in accordance with generally accepted industry standards. Customer must notify GridGain of any failure to so perform within ten (10) days after the performance of the applicable portion of the Services. GridGain’s entire liability, and Customer's sole remedy, for GridGain’s failure to so perform shall be for GridGain to, at its option, (i) use reasonable efforts to correct such failure, and/or (ii) terminate the applicable Order Form and refund that portion of any fees received that correspond to such failure to perform.
4.2 DISCLAIMER. EXCEPT AS EXPRESSLY STATED HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND GRIDGAIN MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE SERVICES. GRIDGAIN DOES NOT WARRANT THAT THE SERVICES WILL BE DESIGNED TO MEET CUSTOMER’S BUSINESS REQUIREMENTS. GRIDGAIN HEREBY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT WITH RESPECT TO THE SERVICES.
5. CONFIDENTIAL INFORMATION. Each Party (the “Disclosing Party”) may during the term of this Agreement disclose to the other Party (“Receiving Party”) non-public technical, operational, and other information (“Confidential Information)” regarding the other Party’s business. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to employees, contractors and professional advisors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. The obligations of confidentiality assumed under this Agreement shall not apply to the extent the Receiving Party can demonstrate, by clear and convincing evidence, that such information: (a) is or has become generally available to the public, without any breach by the Receiving Party of the provisions of this Agreement or any other applicable agreement between the Parties; (b) was rightfully in the possession of the Receiving Party, without confidentiality restrictions, prior to such Party’s receipt pursuant to this Agreement; (c) was rightfully acquired by the Receiving Party from a third party who was entitled to disclose such information, without confidentiality or proprietary restrictions; (d) was independently developed by the Receiving Party without using or referring to the Disclosing Party’s Confidential Information; or (e) is subject to a written agreement pursuant to which the Disclosing Party authorized the Receiving Party to disclose the subject information. Upon termination, each Party shall destroy or return the other Party’s Confidential Information.
6. TERM AND TERMINATION
6.1 Term. This Agreement shall commence on the Effective Date and shall continue in effect until the stated term(s) in the Order Form (“Initial Term”), and, unless expressly stated otherwise in the Order Form, shall automatically renew for additional period periods of 12 months (“Additional Term(s)”) unless written notice of non-renewal is given by one party to the other at least sixty (60) days prior to the expiration of the then-current term.
6.2 Termination for Cause. This Agreement, or any Order Form, may be terminated by either Party if the other Party is in material breach of any term or condition of this Agreement and such breach is not remedied for a period of thirty (30) calendar days after the Party in breach has been notified of the breach by the other Party. Notice of termination for any Order Form shall not be construed to be notice of termination for any other Order Form.
7. LIMITATION OF LIABILITY. GridGain shall have no liability whatsoever for any claims, including by Customer or any third party, arising from or related to (a) the Software; or (b) GridGain’s inability to provide the Services as a result of Customer’s breach of Section 1.4.
CUSTOMER ACKNOWLEDGES IT HAS OBTAINED THE SOFTWARE, WHICH INCLUDES OPEN SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS, FROM A THIRD PARTY AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN SOURCE COMPONENTS OR OTHER THIRD-PARTY MATERIALS.
NOTWITHSTANDING ANY OTHER CLAUSE IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHETHER IN AN ACTION BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, WHETHER OR NOT GRIDGAIN HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF, AND IN NO EVENT WILL GRIDGAIN'S TOTAL AGGREGATE LIABILITY FOR ANY DAMAGES ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT WHETHER IN ACTIONS BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GRIDGAIN HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF, EXCEED THE AMOUNT PAID UNDER THE APPLICABLE ORDER FORM BY CUSTOMER TO GRIDGAIN FOR THE SPECIFIC SERVICES FROM WHICH SUCH CLAIM ARISES. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE AN ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
8. ASSIGNMENT. Customer may not assign this Agreement or any of its rights or interests hereunder, or delegate any of its obligations hereunder, without the prior written consent of GridGain, which shall not be unreasonably withheld. Any attempted assignment or delegation in contravention of this Section shall be null and void, and of no force or effect. This Agreement shall be binding upon, and shall inure to the benefit of, the legal successors and permitted assigns of the Parties.
9. NOTICES. Any notice, demand or other communication (collectively “notice”) required or permitted under this Agreement shall be made in writing and shall be deemed to have been duly given (i) when delivered personally to the representative(s) designated to receive notices for the intended recipient, or (ii) when mailed by certified mail (return receipt requested) or sent by overnight courier to the representative(s) designated to receive notices for the intended recipient at the address set forth on the applicable Order Form.
10. COMPLIANCE WITH LAW. Customer shall be solely responsible for applying for and obtaining any approvals, authorizations, or validations necessary to effectuate the terms of this Agreement under the laws of the appropriate national laws of each of the countries in the licensed territory.
11. CHOICE OF LAW AND JURISDICTION. This Agreement will be governed by and construed under the laws of the State of California excluding choice of law principles, and in no event will this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. In the event either party brings any action at law or in equity against the other party relating to this Agreement, the venue for such action shall be with a state court in San Mateo County or a federal court in the Northern District of California. To that end, each Party irrevocably consents to the exclusive jurisdiction of, and venue in, such court(s), and waives any, (a) objection it may have to any proceedings brought in any such court, (b) claim that the proceedings have been brought in an inconvenient forum, and (c) right to object (with respect to such proceedings) that such court does not have jurisdiction over such Party. Without limiting the generality of the foregoing, Customer specifically and irrevocably consents to personal and subject matter jurisdiction for such claims or disputes in the state court in San Mateo County or a federal court in the Northern District of California and to the service of process in connection with any such claim or dispute by the mailing thereof by registered or certified mail, postage prepaid to Customer, at the address for notice set forth in, or designated pursuant to, this Agreement.
12. REMEDIES The Parties acknowledge that the failure to perform their respective duties under Section 5 may cause the other Party to suffer irreparable injury for which such injured Party will not have an adequate remedy available at law. Accordingly, the injured Party may seek to obtain injunctive or other equitable relief to prevent or curtail any such breach, threatened or actual, without posting a bond or security and without prejudice to such other rights as may be available under this Agreement or under applicable law.
13. WAIVER. No course of dealing, failure by either Party to require the strict performance of any obligation assumed by the other hereunder, or failure by either Party to exercise any right or remedy to which it is entitled, shall constitute a waiver or cause a diminution of the obligations or rights provided under this Agreement.
14. FORCE MAJEURE. A Party will be excused from a delay in performing, or a failure to perform, its obligations under this Agreement to the extent such delay or failure is caused by the occurrence of any major contingency beyond the reasonable control, and without any fault, of such Party, other than the failure to meet financial obligations. In such event, the performance times shall be extended for a period equivalent to the time lost because of the excusable delay.
15. CONSTRUCTION
15.1 Inconsistencies. In the event of any inconsistency between the provisions of this Agreement and any Order Form, the provisions of the Order Form shall govern for purposes of such Order Form.
15.2 Modification. The terms, conditions, covenants and other provisions of this Agreement may hereafter be modified, amended, supplemented or otherwise changed only by a written instrument (excluding e-mail or similar electronic transmissions), such as an Order Form, that specifically purports to do so and is physically executed by a duly authorized representative of each Party. Purchase orders will be for the sole purpose of defining quantities, prices and describing the Services to be provided under this Agreement and to this extent only are incorporated as a part of this Agreement and all other terms in purchase orders are rejected.
15.3 Severability. If a court of competent jurisdiction declares any provision of this Agreement to be invalid, unlawful or unenforceable as drafted, the Parties intend that such provision be amended and construed in a manner designed to effectuate the purposes of the provision to the fullest extent permitted by law. A Order Form may be executed in counterparts, each of which shall be deemed to be an original.
15.4 Survival. The following provisions shall survive and continue to bind the Parties after termination of this Agreement: Sections 2, 3, 4, 5, 7, 9, 11, 12 and 15.
15.4 Complete Understanding. This Agreement constitutes the complete understanding of the Parties, and supersedes all prior or contemporaneous agreements, discussions, negotiations, promises, proposals, representations, and understandings (whether written or oral) between the Parties, about the subject matter hereof.