Aspera On Demand Subscription Agreement
Last updated October 15, 2012
This Agreement contains the terms and conditions that govern access to and use of Licensed Products via the Microsoft® Windows Azure Platform. By accessing and using Aspera On Demand, Subscriber represents to Aspera (i) either: (a) that it is lawfully able to enter into contracts (e.g., Subscriber is not a minor) or (b) if Subscriber is entering into this Agreement for an entity, such as the company Subscriber works for, Subscriber has the legal authority to bind that entity; and (ii) that Subscriber agrees to be bound by the terms and conditions of this Agreement and the On Demand Support and Maintenance Plan.
1.0 TERMINATION .
1.1 By Aspera . Aspera may terminate this Agreement immediately upon notice to Subscriber (i) if Subscriber is in material breach or default which breach or default is not capable of remedy; (ii) if Aspera’s relationship with any third party who provides software, other technology, or services used by Aspera to provide Aspera On Demand expires, terminates, or requires Aspera to change the way it provides Aspera On Demand; (iii) in order to comply with the law or requests of governmental entities; or (iv) if Aspera determines the use of the Licensed Products by Subscriber or End Users or Aspera’s provision of Aspera On Demand to Subscriber or End User’s has become impractical or unfeasible for any legal or regulatory reason. Further, Aspera may terminate this Agreement immediately upon notice to Subscriber if Subscriber no longer has an active user account for the Microsoft Windows Azure Platform (a suspended account is deemed not an active account).
1.2 Licenses . Licenses and rights granted hereunder will automatically terminate: (i) at the earlier of the end of the license term (which includes any renewal terms) or use of the transfer allotment purchased; (ii) in the event Subscriber (a) materially breaches the term of the license grant; (b) terminates or suspends its business; (c) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute; (d) becomes insolvent or subject to direct control by a trustee, receiver, or similar authority; (e) has wound up or liquidated is business, voluntarily or otherwise; or (f) if Subscriber’s or an End User’s use of the Licensed Product is in violation of applicable laws; or (iii) in the event of termination under Section 1.1 at which time access to the Licensed Product may be terminated by Aspera.
2.0 INTELLECTUAL PROPERTY RIGHTS .
2.1 Ownership . Aspera shall have and shall retain sole ownership of all Aspera Materials and all Intellectual Property Rights therein. All rights not expressly granted by Aspera to Subscriber under this Agreement are reserved and retained by Aspera and its licensors.
2.2.1 Licensed Products . Unless otherwise specified in writing by Aspera, all subscription licenses for Licensed Products granted hereunder are: (i) granted in Object Code only; (ii) non‑exclusive and non‑transferable or sub licensable (except as provided in Section 2.2.2); (iii) contingent upon Subscriber's payment in full of all subscription fees and its compliance with the terms and conditions of this Agreement and all applicable laws and regulations; (iv) subject to Subscriber's use (and where applicable installation) of the Licensed Products in accordance with the Documentation; and (v) unless otherwise agreed, in writing, restricted solely to use by Subscriber on an unlimited number of virtual servers and by an unlimited number users (including End Users, where applicable) without bandwidth restriction either: (a) in the operation of Subscriber’s internal business or (b) embedded in or provided as part of Subscribers products or services offering. The Subscription Plan purchased through the Microsoft Azure store together with this Section 2.2 constitutes a “License.” The Licensed Products may contain Entitlement Software; any reports and statistics generated thereby may be used solely for purposes of verifying compliance with a License grant. All Third Party Software shall be licensed hereunder as authorized by the terms of the license granted by the third party to Aspera. In the event of a conflict between Subscriber Plan or this Agreement, the terms of this Agreement shall control.
2.2.2 Distribution of Licensed Products to End Users . Subscriber may distribute Optional Transfer Clients to End Users subject to the rights and restrictions of Subscriber’s License grant and Subscriber’s obligations hereunder. Aspera’s browser plug-ins and the Aspera Embedded Client software may be downloaded from Aspera’s website. The download of Embedded Client software requires a user ID, password, and license key which will be provided to Subscriber.
2.2.3 Return of Aspera Materials . When the Subscription Plan term expires or is terminated or the license grant is terminated, Subscriber shall immediately cease using the Aspera Materials, and within thirty (30) days after any such expiration or termination, Subscriber shall: (i) terminate any Subscriber instance of an Aspera provided virtual server along with all copies of the Aspera Materials, if any; and (ii) destroy any other copies, exclusive of copies made in conjunction with normal backup procedures, which are to be deleted or written over in the normal course of Subscriber’s business; and (iii) provide Aspera with a letter of destruction. For avoidance of doubt, Subscriber acknowledges and agrees that it shall have no right to use such backup copies of the Aspera Materials so retained and will protect the Aspera Materials in accordance with Section 3.0.
2.2.4 Documentation . Subscriber is hereby granted a non‑exclusive and non‑transferable license to use any Documentation provided with a Licensed Product.
2.3 Reservations and Restrictions . Subscriber shall not: (i) disable any Entitlement Software, so doing may result in interruption or termination of Subscriber’s use of the Licensed Products; (ii) decompile, disassemble, reverse engineer, or otherwise derive the Source Code of the Aspera Materials by any means whatsoever, except to the extent such activities may not be restricted under applicable law; (iii) have a right to any Source Code for Aspera Material; (iv) have the right to remove any product identification (exclusive of product identification found on web application Licensed Products, which identification may be removed), copyright markings or legends, or other notices placed upon or contained within the Aspera Materials; (v) use the Aspera Materials in violation of any applicable law or regulation; or (vi) use or combine any Open Source Software with the Aspera Materials in any manner that would subject any Aspera Materials or Confidential Information of Aspera or its suppliers to the provisions of General Public License (“GPL ”), Lesser General Public License (“LGPL”) or similar terms and conditions. Further, Subscriber shall not: (a) modify or create a derivative work of any part of the Aspera Materials; (b) under any circumstances sell, license, sublicense, lease, lend distribute, provide access to, or otherwise transfer to a third party and rights in the Aspera Materials or any copy thereof, in whole or in part, that in any way compete or may be used to compete with Aspera’s business, without Aspera's prior written consent. The Parties expressly agree that where applicable law would permit Subscriber to decompile, disassemble, or otherwise reverse engineer the Aspera Materials by any means whatsoever, at Subscriber's request, Aspera shall, for a nominal administrative charge, provide or ask its third party licensors to provide, information necessary for Subscriber to achieve interoperability between the Licensed Products and Subscriber software or hardware with which the Licensed Products is to be utilized (which information shall be treated for all purposes hereunder as the Confidential Information of Aspera). If and only if Aspera declines Subscriber's request for such information then Subscriber, notwithstanding anything herein to the contrary, may reverse engineer the Licensed Product solely for interoperability purposes. The information obtained by any such reverse engineering shall be deemed to be the Confidential Information of Aspera.
2.4 Feedback and Improvements . Subscriber is not required to provide any Feedback to Aspera regarding the Aspera Materials. However, to the extent that Subscriber provides any Feedback to Aspera or makes or has made (including by Aspera) any Improvements to the Aspera Materials, Subscriber agrees that Aspera shall have, and Subscriber hereby does grant to Aspera, a non‑exclusive, perpetual, non‑terminable, worldwide, royalty-free right and license to use, reproduce, modify, create derivative works of, display, import, disclose, distribute, sublicense, rent, lease, lend copies of, and otherwise exploit such Feedback and Improvements without restriction.
3.0 CONFIDENTIALITY .
3.1 Confidentiality Obligations . Subscriber acknowledges it may obtain Confidential Information. Subscriber shall, at all times, both during the term of a Subscription Plan and thereafter for a period of five (5) years keep in confidence and trust all Confidential Information received by it (except for any trade secrets and software code along with any related documentation, which shall be kept in confidence and trust in perpetuity or until such time as it falls within one (1) of the exclusions in Section 3.2). Subscriber shall not use Confidential Information other than as expressly permitted under the terms of this Agreement. Subscriber shall take all reasonable steps to prevent unauthorized disclosure or use of the Confidential Information and to prevent it from falling into the public domain or into the possession of unauthorized Persons. Subscriber shall not disclose Confidential Information to any Person other than the Subscriber’s officers, employees, contractors, or permitted End Users who need access to such Confidential Information in order to effect the intent of this Agreement, and who have entered into written confidentiality agreements which protect the Confidential Information sufficient to enable the Subscriber to comply with this Section 3.1. Subscriber shall promptly give notice to Aspera of any known unauthorized use or disclosure of Confidential Information. Subscriber agrees to assist Aspera as reasonably necessary to remedy such unauthorized use or disclosure of Confidential Information.
3.2 Exclusions to Obligations . The obligations set forth in Section 3.1 shall not apply to the extent that Confidential Information includes information which the Subscriber can reasonably demonstrate: (i) is now or hereafter, through no unauthorized act or failure to act on the Subscriber’s part, publicly known and generally available in the public domain; (ii) was known to the Subscriber without an obligation of confidentiality at the time the Subscriber receives the same, as evidenced by written records; (iii) is hereafter furnished to the Subscriber by a third party as a matter of right and without restriction on disclosure; or (iv) was independently developed by the Subscriber without use of the Confidential Information.
3.3 Required Disclosure . Nothing in this Agreement shall prevent the Subscriber from disclosing the Confidential Information to the extent the Subscriber is required by: law; interrogatories, written requests for information or documents; a governmental authority or agency; subpoena; civil investigative demand or similar legal process to disclose any Confidential Information. Provided, however, that prior to any such disclosure, the Subscriber shall: (i) assert the confidential nature of the Confidential Information; (ii) promptly notify the Aspera in writing of the request to disclose; and (iii) cooperate fully with Aspera in protecting against any such disclosure or obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
3.4 Injunctive Relief . Subscriber agrees that there is no adequate remedy at law for any breach of the obligations in this Section 3.0. Upon any such breach or any threat thereof Aspera shall be entitled to appropriate equitable relief, including injunctive relief, in addition to whatever other remedies it might be entitled.
4.0 REPRESENTATIONS; WARRANTIES; REMEDIES .
4.1 Subscriber Warranties . Subscriber represents and warrants that it shall: (i) provide all support and maintenance to End Users and (ii) make no express or implied representation or warranties to End Users or assume and indemnification obligations on behalf of Aspera; (iii) indemnify and hold harmless Aspera from (a) any claims made by and (b) any damages suffered by any End User or third party resulting from the use of Aspera’s or its third party supplier products; and (iv) to the maximum extent permitted by applicable law, include in its agreement with each End User the following disclaimer: “subscriber ’s third party suppliers shall have no liability to end user for any damages suffered by end user or any third party as a result of using the third party supplier products or any portion thereof or as a result of any services related thereto .”
4.2 Support and Maintenance Services Warranties . Aspera warrants that it shall commence correction of any reported Errors in Licensed Products quickly as possible as provided in the On Demand Support and Maintenance Plan found at www.asperasoft.com/azureondemandsupportterms and that Aspera's Support and Maintenance Services shall be performed in a professional manner consistent with industry standards.
5.0 DISCLAIMERS .
the foregoing warranties in section 4.0 (representations ; warranties ; remedies ), are exclusive , and to the extent permitted by applicable law , the parties disclaim all other warranties express , implied , or statutory as to any matter whatsoever ; in particular , any and all warranties of merchantability , fitness for a particular purpose , non-infringement , course of dealing , or course of performance , which are hereby expressly excluded by the parties . aspera on demand and the aspera materials are provided “as is ” and aspera does not warrant that aspera on demand or the aspera materials or any maintenance release , update release , or version release shall meet any of subscriber 's requirements or are error free or that operation of the aspera materials shall be secure or uninterrupted or that internet connections to the hosted service provider will be uninterrupted or that any content or data will be secure or not otherwise lost or damaged , nor does aspera warrant against interference with subscribers enjoyment of the subscription and aspera hereby disclaims any and all liability on account thereof . the licensed programs are not designed , intended , or licensed for use in hazardous environments requiring fail -safe controls and aspera specifically disclaims any express or implied warranty of fitness for such purposes . to the extent an implied warranty cannot be excluded , such warranty is limited to a period of thirty (30) days from the date of purchase of the subscription giving rise to the claim . 6.0 INDEMNITY. Subscriber hereby agrees to defend Aspera and its officers, directors, agents, employees, or its authorized representatives from and against any and all suits, actions, legal or administrative proceedings, claims, or demands and indemnify same from, damages, liabilities, interest, attorneys' fees, costs and expenses of whatsoever kind or nature for: (i) claims made by End Users; (ii) breach of this Agreement or violation of applicable law by Subscriber or any End User; (iii) injuries to Persons (including death), and damage to tangible personal property that arises from any negligent act or omission; or willful misconduct of Subscriber, its agents, subcontractors, or representatives, in connection with such this Agreement; (iv) Subscriber’s or End User’s Content or the combination of Subscriber’s or End User’s Content with other applications, content, or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Subscriber’s or End User Content or by the use, development, design, production, advertising, or marketing of any such Content; or (v) a dispute between Subscriber and any End User.
7.0 LIMITATIONS OF LIABILITY .
7.1 Consequential Damages Waiver . except and to the extent specifically provided for in sections , 6.0 (indemnity ), and 10.7 (export compliance ), and except as to any liability of the parties under sections 2.3 (reservations and restrictions ) or 3.0 (confidentiality ), and to the extent permitted by applicable law, neither party shall have any liability for incidental , consequential , indirect , special , exemplary , or punitive damages ; or liabilities of any kind for loss of revenue , loss of profits , loss of business , loss of data , interruption of business , or other financial loss arising out of or in connection with this agreement , the on demand support and maintenance plan , or any purchase order , regardless of the form of the action , whether in contract , tort (including negligence ), strict product liability , or otherwise , even if any representative of a party hereto has been advised of the possibility of such damages and even if any limited remedy specified in this agreement or any purchase order is deemed to have failed of its essential purpose . provided , however , that the parties expressly agree that any express payment obligation of subscriber under this agreement or any purchase order shall be deemed direct damages and no portion of any such express payment obligation shall be deemed consequential damages within the meaning of this section 7.1 . further , aspera 's third party suppliers shall have no liability to subscriber for any damages suffered by subscriber or any third party as a result of using aspera 's third party supplier products .
7.2 Limitation of Liability . to the extent permitted under applicable law, aspera's total liability with respect to claims arising from or in connection with its performance, or observance of its obligations or otherwise under this agreement, the on demand support and maintenance plan , or any purchase order, regardless of the form of the action, whether in contract, tort (including negligence ), or other legal or equitable theory shall in no circumstances exceed the amounts paid by subscriber to aspera pursuant to the terms of the applicable purchase order giving rise to the claim in the twelve (12) month period prior to claim arising . aspera 's maximum aggregate liability , regardless of the form of the action , whether in contract , tort (including negligence ), or other legal or equitable theory in respect to , arising from , or in connection with its performance or observance of its obligations , or otherwise under this agreement and all purchase orders is fifty thousand united states dollars ( u . s .$50,000).
8.0 OPEN SOURCE DISCLAIMERS; DAMAGES WAIVER; LIMITATION OF LIABILITY .
Portions of the Aspera Materials may have been created using Open Source Software and such Open Source Software may include Third Party Software. Aspera Materials may include certain modified Open Source. for avoidance of doubt: (i) aspera makes no representations or warranties as to non‑infringement by any open source software ; (ii) all such software is provided “as is ” by such third parties and any express or implied warranties , including the implied warranties of merchantability and fitness for a particular purpose, are disclaimed by such third parties and in no event shall such third parties be liable for any direct , indirect , incidental , special , consequential , exemplary , or punitive damages resulting from the use or misuse of such third party software ; (iii) aspera is not responsible for any liability arising from any claim by any third party that any such open source software infringes any intellectual property rights ; and (iv) subscriber 's sole and exclusive rights and remedies , if any , with respect to open source software shall be against the originator of the open source software giving rise to a claim and not aspera .
9.0 DEFINITIONS .
Capitalized ters used herein have the meaning set forth in this Section 9.0. The singular includes the plural and vice versa; references to one gender includes the other. General words shall not be given a restrictive meaning where they follow one (1) or more specific term(s) indicating a particular category of act, matter, or thing or where they are followed by examples. The words “including” and “in particular” (or similar) shall not limit the generality of any preceding words.
“Affiliate” means a company or other legal entity such as a partnership or limited liability corporation Controlled by, Controlling or under common Control with a Party, where “Control” and its variants mean possessing: (i) ownership or control (directly or indirectly) of fifty percent (50%) or more of the voting rights or the right to elect the board or other governing body of a person, firm, association, partnership, corporation, governmental agency or other legal entity (a “Person”); or (ii) the power to direct the affairs of any Person. An entity is an Affiliate of a Party to this Agreement solely for so long as such Control exists.
“Agreement” means the terms and conditions of this Aspera On Demand Subscription Agreement.
“Aspera” means Aspera, Inc. and any Affiliates.
“Aspera Materials” means the Licensed Products (including any Maintenance Release, Update Release, or Version Release), and Documentation, and any and all other materials provided hereunder to Subscriber by Aspera, including, without limitation, user interfaces, formats, design elements, code, algorithms, models, libraries, data structures, annotations, text, and graphics used in or output by such software and other materials.
“Commercial Subscriber License” means a Licensed Product license grant to a Subscriber which permits the Subscriber to provide a product or service for a fee to End Users.
“Confidential Information” means all nonpublic information disclosed by Aspera which is disclosed to Subscriber or an End User pursuant to this Agreement that a reasonable Person acting reasonably under the circumstances would or should know was confidential or proprietary, regardless of whether or not marked or identified as such. Aspera’s Confidential Information shall be deemed to include Aspera Materials.
“Content” means software, (including machine images), data, text, audio, video, images, or other content.
“Documentation” means the Aspera’s standard user manuals and guides for Licensed Products.
“End User” means Subscriber’s customer.
“Entitlement Software” means software which can provide, among other things, reports and statistics as well as confirm compliance with the License grant.
“Feedback” means any error reports, suggestions, feedback, or other information regarding any modifications or changes or requests for modifications or changes to Aspera Materials.
“Improvements” means any extension; modification; derivative work of or improvement or enhancement to any Aspera Materials whether recommended by Subscriber or Aspera; including, without limitation, any revision, configuration, modification, translation (including compilation or recapitulation by computer), abridgement, condensation, expansion, or any other form in which Aspera Materials may be recast, transformed, or adapted including, without limitation, all Intellectual Property Rights therein and thereto.
“Intellectual Property Rights” means any and all copyrights, trade secrets, patents, and other industrial property rights, including without limitation, all rights considered “moral rights,” and all applications, registrations, renewals, and other filings with respect to any of the foregoing, whether existing now or in the future, throughout the world and under the laws of any jurisdiction.
“Licensed Product(s)” means Aspera’s proprietary software found at http://cloud.asperasoft.com/aspera-on-demand/, along with any Third Party Software distributed therewith, including, without limitation, user interfaces, formats, design elements, code, algorithms, models, libraries, data structures, annotations, text, and graphics used in or output by such software and other materials.
“Object Code” means output from a computer or assembler that is itself executable machine code.
“Open Source Software” means any software or other materials (including, but not limited to, Third Party Software and materials) that are subject to open source or similar terms and conditions, including, without limitation, GPL or LGPL license.
“Optional Transfer Clients ” means” Aspera’s (i) fasp™ software that powers transfers on mobile devices over Wi -Fi or cellular networks; (ii) add-in software for Microsoft® Outlook; and (iii) Cargo Downloader software. “Party” or “Parties” means individually Subscriber or Aspera or collectively Subscriber and Aspera. “Source Code” means computer programming code in human readable form. “Subscriber” means the Person enrolling in the Aspera On Demand product offering. “Subscriber License” means a Licensed Product license granted to a Subscriber which permits the Subscriber to use a Licensed Product for Subscriber’s own internal operation of its business. “Subscription Plan” means one (1) of Aspera’s three (3) On Demand Microsoft Windows Azure license offerings (I.e., Month-to-Month Plan, Annual Plan, or Multi-Year Plan).
“Support and Maintenance Services” means the software support and maintenance services for a Licensed Product to be provided by Aspera in accordance the On Demand Support and Maintenance Plan found at http://cloud.asperasoft.com/azureondemandsupportterms.
“Third Party Software” means any software obtained by Aspera under a license from entities independent of Aspera.
10.0 GENERAL PROVISIONS.
10.1 Notices .
10.1.1 To Subscriber . Aspera may provide any notice to Subscriber under this Agreement by: (i) posting a written notice on Aspera’s On Demand website; or (ii) sending a message to the email address then associated with Subscriber’s account. Notices provided by posting on the On Demand website will be effective upon posting and notices provided by email will be effective when the email is sent. It is Subscriber’s responsibility to keep its email address current. Subscriber will be deemed to have received any email sent to the email address then associated with its account whether or not Subscriber actually receives the email. Subscriber agrees that notice, disclosures, and other communications that Aspera provides electronically satisfy any legal requirement that communications be in writing.
10.1.2 To Aspera . Subscriber shall provide notices in writing: (i) delivered personally; (ii) sent by commercial overnight courier with written verification of receipt; or (iii) mailed postage prepaid by certified or registered mail or international air mail when applicable, return receipt requested to the address below.
5900 Hollis St. Suite E
Emeryville, CA 94608
Attention: Legal Department
Notwithstanding the foregoing, termination or cancellation notices are to be sent to: firstname.lastname@example.org
10.2 Trademarks; Public Statements; Press Releases . This Agreement does not grant any right or license to a Party to use, display, or apply for any rights concerning the other Party's trademarks. Notwithstanding the foregoing,
Subscriber hereby agrees Aspera may include Subscriber and its trademarks in advertising, sales, and other promotion and publicity material; provided, however, that Aspera submits any such material to Subscriber for approval (which approval shall not be unreasonably
withheld). Aspera may, however, without the prior written approval of Subscriber, list Subscriber, along with Subscriber's logo, as an Aspera Subscriber in proposals, presentations, marketing literature, and on Aspera's corporate website, provided, however,
Subscriber is not made more prominent than any other Subscriber listed. Nothing herein shall prevent either Party from making any public statements or press releases that may be required by law or the Securities Exchange Commission.
10.3 No Third Party Beneficiaries . This Agreement does not create any third party beneficiary rights in any Person that is not a party to this Agreement.
10.4 U.S. Government Restricted Rights . If Aspera Materials are being licensed by the U.S. Government directly or indirectly through a civilian agency or third party, any Licensed Products and related Documentation are commercial computer software and documentation developed exclusively at private expense and are provided as a “commercial item” as that term is defined in FAR 2.101 (and as it is defined and used in all corresponding agency specific Federal Acquisition Regulation supplements), the Aspera Materials are provided with only those rights specified in Section 2.0.
10.5 Captions and Section Headings . The captions and section headings used in this Agreement are inserted for convenience only and should not affect the meaning or interpretation of this Agreement.
10.6 Severability . If any provision of this Agreement is held invalid or unenforceable for any reason, it shall either: (i) be amended to achieve the intent of the Parties and maximum enforceability under the applicable law; or in the event that is not possible (ii) be deleted; the remaining other provisions of the Agreement shall continue in full force and effect.
10.7 Export Compliance . Subscriber warrants it will not export, directly or indirectly, any information acquired under this Agreement or any products utilizing any such information to any country prohibited by the laws of the United States, or for which the U.S. Government or any agency thereof at the time of export requires an export license or other government approval without first obtaining such license or approval. Further, Subscriber agrees that the costs of such compliance, including but not by way of limitation, bonds, duties, or taxes shall be Subscriber's obligation.
10.8 Delays . Except for the payment of money, neither Party shall be liable for any failure or delay in performance under this Agreement due to: fire; explosion; earthquake; storm, flood, or other weather; unavailability of necessary utilities or raw materials; war; insurrection; riot; an act of God; terrorist or public enemy act; any law, act, order, proclamation, decree, regulation, ordinance, instructions of government, or other public authorities; judgment or decree of a court of competent jurisdiction (not arising out of breach by such Party of this Agreement); or any other event beyond the reasonable control of the Party whose performance is to be excused.
10.9 Independent Contractor . Aspera, in performance of this Agreement, is acting as an independent contractor and shall have the exclusive control of the manner and means of its performance hereunder. Personnel supplied by Aspera hereunder are not Subscriber employees or agents (whether or not located on Subscriber's premises) and shall not hold themselves out as such. Nothing contained in this Agreement shall be construed to create a joint venture or partnership between the Parties.
10.10 Assignment . Subscriber may not assign or delegate this Agreement or any of its rights or duties hereunder, directly, indirectly, or by operation of law, except with the express written permission of Aspera, which permission will not be unreasonably withheld. Aspera shall have the right to assign this Agreement to a successor to all or substantially all of its business or assets to which this Agreement relates, whether by sale, merger, operation of law, or otherwise. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties and their respective successors and permitted assigns.
10.11 Governing Law; Venue; Language . This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to conflict of laws provisions, and each Party expressly consents and submits to the exclusive jurisdiction of the state or federal courts located in Northern California. Each Party hereby further irrevocably waives any claim or objection that it may now or hereafter have and agrees not to plead that any: (i) such courts lack jurisdiction over it or any proceedings arising out of or in connection with this Agreement; or (ii) action or proceeding brought in such court has been brought in an inconvenient forum. The Parties hereby agree that either may enforce any judgment, lien, arbitral award, injunction, or other remedy or relief against the other in the courts of the United States or the home jurisdiction of a Party. The English language version of this Agreement controls when interpreting this Agreement. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
10.12 Survival . The following provisions shall survive the termination of this Agreement for whatever reason (including expiration): 2.0 (Intellectual Property Rights), with the exception that 2.2, which survives solely to the extent a License, per the terms of the applicable purchase survives termination of the applicable order or this Agreement; 3.0 (Confidentiality); 4.1 (Subscriber Warranties); 5.0 (Disclaimers); 6.0 (Indemnity); 7.0 (Limitations of Liability); 8.0 (Open Source Disclaimers; Damages Waiver; Limitation of Liability); 9.0 (Definitions); and 10.0 (General Provisions).
10.13 Allocation of Risk . The sections on limitation of liability, warranties, and disclaimer of warranties allocate the risks in this Agreement between the Parties. This allocation is an essential element of the basis of the bargain between the Parties.
10.14 Entire Agreement . The terms and conditions of this Agreement supersede: (i) supersedes all prior or simultaneous representations, discussions, negotiations, and agreements with respect to Licensed Products and Aspera On Demand, whether written or oral (ii) all preprinted terms and conditions contained in any purchase order or business form submitted hereafter by Subscriber; and (iii) any terms and conditions of any Aspera shrink-wrapped/click-through end user license agreement included in a Licensed Product that are inconsistent with the terms and conditions of this Agreement. Aspera will not be bound by, and specifically objects to, any term, condition or other provision which is different from or in addition to the provisions of this Agreement.
On Demand Support and Maintenance Plan
Last updated October 15, 2012 1.0 OVERVIEW . During the term of a Subscription Plan, Aspera will provide the Support Services and Maintenance Services set forth herein for Licensed Products in accordance with the terms and conditions of this Agreement, and any Aspera published customer support user guidelines. During the term of a Subscription Plan, Subscriber will have access to Maintenance Releases, Update Releases, and Version Releases. The On Demand Support Services and Maintenance Services are delivered in accordance with this plan and subject to the On Demand Subscription Agreement terms and conditions.
2.0 SUPPORT SERVICES . Aspera will provide technical support to assist Subscriber in the use of a Licensed Product, which services will include assistance regarding installation, configuration, and troubleshooting problems encountered in use of the Licensed Product (“Support Services”). Support Services are available during Aspera Business Days.
3.0 MAINTENANCE SERVICES . 3.1 Services . Subject to Section 5.0, Aspera will use reasonable efforts to remedy any Errors in a Licensed Product (“Maintenance Services ”). Aspera will provide services directly to the Designated Contact.
3.2 Error Reporting . Subscriber may report suspected Errors in a Licensed Product via the Aspera website, telephone, or email during the Availability period. Upon receipt of a Ticket, a Customer Support Engineer will consult with Subscriber and will then, at the Customer Support Engineer’s discretion, assign an appropriate priority level to the Ticket.
3.3 Service Levels .
3.3.1 Severity 1 Errors . Aspera will Respond to Severity 1 Errors within one (1) hour of receipt of a Severity 1 Ticket. Aspera's goal is to provide an Error Correction within four (4) hours following of receipt of a Severity 1 Ticket. If a Workaround or temporary solution is provided, an Error Correction will be provided within two (2) Aspera Business Days thereafter, unless specifically agreed to otherwise.
3.3.2 Severity 2 Errors . Aspera will Respond to Severity 2 Errors within four (4) hours of receipt of a Severity 2 Ticket. Aspera's goal is to provide an Error Correction within one (1) Aspera Business Days of receipt of a Severity 2 Ticket. If a Workaround or temporary solution is provided, an Error Correction will be provided within ten (10) Aspera Business Days thereafter, unless specifically agreed to otherwise.
3.3.3 Severity 3 Errors . Aspera will Respond to a Severity 3 Error within three (3) Aspera Business Days of receipt of a Severity 3 Ticket. Severity 3 Errors are collected and reviewed and Resolution will be based on reasonable commercial practices including Resolution in subsequent release. If there is insufficient demand for Resolution of a Severity 3 Error from Aspera's customers, Resolution will be deemed not commercially reasonable and there will be no Resolution for the reported Severity 3 Error.
3.4 Escalation Procedures . In the event Subscriber believes that Aspera is not meeting its Maintenance Services obligations, Subscriber’s concerns will be escalated in the following order: (i) engineer on call; (ii) World Wide Director of Support; (iii) Vice President Engineering; and (iv) President.
3.5 Corrective Code Releases and Version Release . Each Maintenance Release will supersede any and all prior Maintenance Releases.
5.0 SUBSCRIBER RESPONSIBILITIES . Subscriber is responsible for: (i) all End User support and maintenance and Subscriber shall expressly instruct End Users to contact Subscriber of all support and maintenance; (ii) appointing a Designated Contact and one (1) alternate Designated Contact; (iii) informing Aspera of the names, telephone numbers, email addresses, and pager numbers of each Designated Contact prior to receipt of Support Services and Maintenance Services; (iv) making Designated Contacts available to Aspera throughout the period in which Aspera is addressing a reported suspected Error; (v) providing Customer Support Engineers with printouts, as requested, and adequate access to Subscriber's system via remote access where required to troubleshoot the reported suspected Error; (vi) maintaining third party hardware maintenance contracts with response times and resolution times equal to or shorter than Aspera’s response times; (vii) contacting directly any third party hardware providers where required to troubleshoot or remedy the reported suspected Error; and (viii) providing all required network and system administration activities.
6.0 LIMITATIONS . Aspera shall have no obligation for remediation of Errors due to a breach of the applicable License. Further, Aspera is not responsible for and shall not be obligated to remedy any problem that is: (i) caused by the use or operation of a Licensed Product other than for its intended purpose; (ii) caused by use of a Licensed Product in combination with any third party software in an environment other than in accordance with the applicable Documentation; (iii) related to a bug, defect, or error in Third Party Software or any other failure of such Third Party Software to conform to its public specifications; (iv) related to a bug, defect, or Error in a Licensed Product if it has been altered or modified without Aspera’s written approval; (v) caused by failure of Subscriber's operations staff to follow instructions or corrective procedures supplied by Aspera; (vi) caused by changes to third party software bundled or embedded in third party hardware; (vii) caused by Microsoft infrastructure malfunctions; (viii) caused by Subscriber's failure to meet its obligations under Section 5.0; or (ix) related to or caused by derivative works. Further, Aspera is not responsible for and shall not be obligated to provide Support Services and Maintenance Services for Subscriber specific software created by Subscriber or Aspera. Finally, Subscriber acknowledges and agrees that as it relates to a bug, defect, or error in Third Party Software, or any other failure of such Third Party Software to conform to its public specifications, any Aspera goals or obligations for Resolution are deemed to be equal to any longer time frames and commitments contained in the Third Party Software vendors maintenance and support agreement with Subscriber or Aspera as is applicable.
7.0 Definitions .
“Aspera Business Days” means Monday through Friday; from 8:00 a.m. to 6:00 p.m. U.S. Pacific Time or Central European time, excluding Aspera’s published holidays which are found on Aspera’s website.
“Availability” means all Aspera Business Days.
“Customer Support Engineer” means Aspera’s software engineer(s) assigned to provide remedial software maintenance.
“Designated Contact” means the individuals identified by Customer as having the necessary technical skills to communicate with Aspera on suspected Errors and who have been delegated the responsibility of working with Aspera to resolve reported Errors.
“Error” means any reproducible failure of code in a Licensed Product that causes the Licensed Product, when properly installed on the Recommended System Configuration and used in accordance with the applicable license agreement, to fail to operate in accordance with the Documentation for such Licensed Product.
“Error Correction” means either a modification to a Licensed Product that substantially causes it to conform to its Documentation; or a procedure or routine that, when observed in the regular operation of a Licensed Product, eliminates any material adverse effect on Subscriber of such Error.
“Maintenance Release” means a subsequent release of a Licensed Product, which is delineated by a change in the second and/or third decimal of the version number, and that includes Error Corrections and may include minor functionality improvements of a Licensed Product, but does not include any release, option or future product, which Aspera licenses separately.
“Recommended System Configuration” means a supported platform that is listed on the platform support page found on Aspera’s website.
“Resolution” means an Error Correction or an answer to a query that has been delivered to the Subscriber.
“Response Time” means the time designated in the purchased Services Plan for a Customer Support Engineer to respond to Subscriber confirming receipt of a Ticket and informing Subscriber if additional information is needed to proceed with analysis.
“Severity 1” means an Error that renders a Licensed Product: (i) incapable of transferring files in a production environment and that is (ii) reasonably believed to be caused by the Licensed Product and not external factors (e.g., but not by way of limitation, the network or Third Party Software).
“Severity 2” means an Error that substantially degrades the performance of a Licensed Product or materially restricts Subscriber’s use of the Licensed Product for which there is a reasonable Workaround to allow file transfers to take place.
“Severity 3” means an Error that: (i) causes only a minor impact on the performance of a Licensed Product or Subscriber’s use of a Licensed Product; or (ii) impacts secondary functionality of a Licensed Product.
“Ticket” means a report to be submitted by Subscriber when reporting a suspected Error, which report shall, at a minimum, include: (i) a description of what occurred and the wording of any error message received; (ii) a description of actions taken prior to the occurrence; (iii) a description of any changes made to the underlying hardware, software, or environment prior to the occurrence; (iv) application log files; (v) a description of troubleshooting efforts; and (vi) a suggested priority level and a description of the business impact of the occurrence.
“Travel Charges” means the professional services charge for travel time and any reasonable and necessary travel related expenses including, but not by way or limitation, airfare, car rental, lodging, meals, and other related subsistence.
“Update Release” means a subsequent release of a Licensed Product, which is delineated by a change in the first decimal of the version number, and that includes some upgrades in features, functionality, or performance of a Licensed Product, but may not include any release, option or future product, which Aspera licenses separately.
“Version Release” means a release of a Licensed Product, which is delineated by a change in the primary number of the version number, and that includes major functionality changes or additions, platform changes, or Error Corrections. Update Releases and Maintenance Releases are not Version Releases.
“Workaround” means a change in the procedures followed or data supplied by Subscriber to avoid an Error without substantially impairing the Subscriber’s use of a Covered Product.