NOTE: These Terms of Support apply only to EnterpriseDB Cloud Products purchased prior to September 9, 2014
Terms of Support
IMPORTANT - READ CAREFULLY
This Terms of Use Agreement applies to the provision of support ("Support”) to be provided by EnterpriseDB Corporation ("EnterpriseDB"), whose principal place of business is 34 Crosby Drive Suite 100, Bedford, MA 01730 to the purchaser of the Support ("Customer"). These terms and conditions form an agreement between EnterpriseDB and Customer ("Agreement"). This Agreement is effective as of the date Customer purchases the Support ("Effective Date"). If Customer does not agree with the terms and conditions of this Agreement, Customer is not authorized to use the Support, and Customer must cease using the Support.
1. Support. EnterpriseDB will provide Support as set further forth in Exhibit A for the EnterpriseDB software ("Software"). Customer acknowledges that in order for EnterpriseDB to provide the Support, Customer may be required to license and install certain third party software and provide certain third party hardware that are not provided or licensed by EnterpriseDB (“Third Party Products”). EnterpriseDB may provide Customer with links and instructions for obtaining Third Party Products, but it is Customer’s responsibility to properly license and install any required Third Party Products from the relevant third party providers. EnterpriseDB will have no liability with respect to any Third Party Products.
2. Fees and Payment. Charges due based on total usage as a result of exceeding the monthly minimum fees for the Basic Cloud and Database and Premium Cloud and Database plans set forth at the time of purchase through the usage service provider will be billed directly by EnterpriseDB via email and will be payable immediately on receipt.
3. Ownership. Customer agrees that nothing in this Agreement will be deemed to prohibit or limit EnterpriseDB's use, now or at any time, of ideas, concepts, know-how, methods, techniques, skill, knowledge and experience, in any way whatsoever, that are used or developed in the performance of Support under this Agreement. Further, Customer agrees that should EnterpriseDB perform Support on products licensed by EnterpriseDB or used by EnterpriseDB to provide Support, then EnterpriseDB retains, and Customer hereby assigns, all right, title, and interest in and to all modifications, enhancements, customizations, source code, acquired or developed during the performance of the Support under this Agreement.
4. Warranties.
4.1 Performance. EnterpriseDB represents and warrants that the Support will be performed in a professional manner consistent with the level of care, skill, practice and judgment exercised by other professionals in performing services of a similar nature under similar circumstances by personnel with requisite skills, qualifications and licenses needed to carry out such work. For any breach of this warranty, Customer's sole and exclusive remedy, and EnterpriseDB's sole and exclusive obligation, will be for EnterpriseDB to use commercially reasonable efforts to correct the defective work, within a reasonable time, so as to comply with generally accepted industry standards.
4.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ENTERPRISEDB PROVIDES THE SUPPORT TO CUSTOMER "AS IS". ENTERPRISEDB MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE SUPPORT FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. ENTERPRISEDB DOES NOT WARRANT THAT THE SUPPORT FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT WILL OPERATE UNINTERRUPTED OR THAT IT WILL BE FREE FROM DEFECTS OR THAT THE SUPPORT IS DESIGNED TO MEET CUSTOMER’S BUSINESS REQUIREMENTS. ENTERPRISEDB DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. CUSTOMER ACKNOWLEDGES THAT THE SUPPORT IS NOT INTENDED FOR USE IN CONNECTION WITH ANY HIGH RISK OR STRICT LIABILITY ACTIVITY (INCLUDING, WITHOUT LIMITATION, AIR OR SPACE TRAVEL, POWER PLANT OPERATION, OR LIFE SUPPORT OR EMERGENCY MEDICAL OPERATIONS) AND THAT ENTERPRISEDB MAKES NO WARRANTY AND SHALL HAVE NO LIABILITY IN CONNECTION WITH ANY USE OF THE SUPPORT IN SUCH SITUATIONS.
5. Limitation of Liability. Notwithstanding any other clause in this Agreement, in no event will EnterpriseDB be liable for any special, indirect, incidental, punitive, exemplary or consequential damages (including, without limitation, any failure to realize savings or other benefits; any loss of use; or any claims made by or any payments made to any third person), any loss of revenue or profits, any loss and/or damage arising from or in connection with a virus, or any loss of data and/or damage arising there from or relating thereto, in each case arising from or in connection with this Agreement whether in an action based on contract, tort or any other legal theory, whether or not EnterpriseDB has been notified of the possibility thereof. Notwithstanding any other clause in this Agreement, EnterpriseDB's total aggregate liability and Customer’s sole remedy 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 EnterpriseDB has been notified of the possibility thereof, will be limited to proven direct damages caused by EnterpriseDB’s sole negligence in an amount not to exceed the amount paid under this Agreement during the service pay (e.g. monthly) period preceding the date of the claim. 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.
6. Term and Termination. This Agreement is effective as of the date that Support is purchased by Customer and will continue until terminated by either party. Sections 2, 3, 4, 5, 6, 7 and 8 will survive the expiration or termination of this Agreement.
7. Miscellaneous.
7.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof, notwithstanding any different or additional terms. This Agreement supersedes all prior or contemporaneous discussions, proposals and agreements between the parties relating to the subject matter of this Agreement. No amendment, modification or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties.
7.2 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable.
7.3 Force Majeure. Neither party will be liable or deemed to be in breach for any delay or failure in performance of this Agreement (except for the payment of money) or interruption of services resulting directly or indirectly from acts of God, civil or military authority, war, riots, civil disturbances, accidents, fire, earthquake, floods, strikes, lock-outs, labor disturbances, foreign or governmental order, or any other cause beyond the reasonable control of such party.
7.4 Governing Law and Venue. This Agreement will be governed by the laws of New York without regard for its choice of law provisions. All disputes arising out of or relating to this Agreement will be submitted to the exclusive jurisdiction of the state or federal courts of New York, and each party irrevocably consents to such personal jurisdiction and waives all objections to this venue.
7.5 Export Regulations. Customer will comply fully with all export control laws and regulations of the United States and all other jurisdictions.
7.6 Assignment. Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld, and any such assignment in violation of this Section shall be void, except that (i) either party may assign this Agreement or rights granted hereunder to an Affiliate without the consent of the other party and (ii) the transfer of this Agreement or rights granted hereunder to a successor entity in the event of a merger, corporate reorganization, or acquisition shall not constitute an assignment for purposes of this Section. Affiliate means an entity that a party, directly or indirectly, controls, an entity that controls a party or an entity that is under common control with a party. For purposes of this provision, control means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity.
7.7 Marketing. EnterpriseDB may use Customer's name and company logo on its customer list and web site, and link to Customer's web site.
7.8 Independent Contractor. The relationship of the parties is that of independent contractors. Neither party will be deemed to be the legal representative of the other nor will it have any right to bind the other party to any contract or commitment. This Agreement does not, and will not, be construed to create an employer-employee, agency, joint venture or partnership relationship between the parties. Each party agrees to assume complete responsibility for its own employees regarding federal or state laws, including employers' liability and tax withholding, worker's compensation, social security, unemployment insurance, and OSHA requirements.
8. Definitions.
8.1 "Business Day" means 8:00 AM to 8:00 PM (local time) Monday through Friday, excluding any EnterpriseDB holidays.
8.2 "Documentation" means any end user manuals or on-line help files regarding the use of the Software that accompany the Software.
8.3 "Error" means a failure of Software to materially conform to the specifications as described in the applicable Documentation.
8.4 "General Release Date" means the date upon which EnterpriseDB announces on its website or otherwise that an Upgrade has entered general release.
8.5 "Initial Response Goal" means, for any single Support Request, the elapsed period measured from the time that Customer initiates the Support Request until EnterpriseDB provides a Response.
8.6 "Maintenance Release" means a version of a Software identified by the second digit to the right of the decimal point ((x).xX)
8.7 "Named Contacts" mean the individuals authorized to contact EnterpriseDB for Support. Such individuals should be trained and knowledgeable about the Software and the EnterpriseDB resolution procedures to be used with the Software. Named Contacts may be changed by providing EnterpriseDB with at least ten (10) days prior written notice. Customers purchasing Support are entitled to one (1) Named Contact and Customers purchasing Premium Subscriptions are entitled to four (4) Named Contacts.
8.8 "Release" means a version of a Software identified by the first digit to the left of the decimal point ((X).xx).
8.9 "Resolution Goal" is the goal for EnterpriseDB of the time required to provide a documented fix that restores full (or near full) functionality to Customer.
8.10 "Response" means EnterpriseDB’s acknowledgment of a Support Request received from Customer.
8.11 "Severity 1 Error" means a catastrophic production Error in the Software which severely impacts Customer's production systems, or in which the Software in Customer's production systems are down or not functioning; or an Error in the Software which is causing a loss of production data and no procedural work around exists. Severity 1 Errors also include security breaches.
8.12 "Severity 2 Error" means the Software, which is in production, is operational but certain major functions are not performing in accordance with the Documentation and no workaround is available.
8.13 "Severity 3 Error" means (a) minor functions of the Software, which is in production, are not performing in accordance with the Documentation or (b) the Software, which is in development or a test environment, is not performing in accordance with the Documentation.
8.14 "Support Request" means a request communicated by Customer to EnterpriseDB using the designated procedure to report an Error and to request a correction of such Error.
8.15 "Upgrade" means any new Release, Version and Maintenance Fix to the Software made available by EnterpriseDB to the Customer.
8.16 "Version" means a later version of the Software identified by a change in the digits to the right of the decimal point ((x).Xx).
EXHIBIT A
SUPPORT TERMS
1. Support. EnterpriseDB will use reasonable commercial efforts to respond to the Support Request from the Named Contacts within the Initial Response Period below. All Support will be provided in the English language, only.
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Covered Components
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Cloud Database Console
Cluster/Node Managers
PostgreSQL
Postgres Plus Advanced Server
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Forums Use
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Yes
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Web Portal Case Management
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Yes
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KnowledgeBase access
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Yes
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Support Modes
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Email
Phone
Remote
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Severity Error Level 1 Resolution Target Response Goal
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24 Hours
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Severity Error Level 2 Resolution Target Response Goal
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48 Hours
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Severity Error Level 3 Resolution Target Response Goal
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5 Business Days
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Initial Target Response Period
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1 Hour
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Support Hours
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24 x 7
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Named Contacts
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4
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Number of Monthly Support Incidents
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Unlimited
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Sev 1 Bug Escalation & Hot Fix
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Yes
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2. Maintenance and Upgrades.
EnterpriseDB will provide Support for each Version on the following terms:
(i) The Cloud Database application will be supported, maintained and/or upgrades delivered for all Severity Error Levels while customer is current in monthly payments or until this agreement is terminated as set forth in Section 6.
(ii) For durations longer than 1 month, EnterpriseDB will, at its discretion and upon a mutually negotiated term, conditions, and fee with Customer, provide support, maintenance, and/or upgrades.
3. Support Prerequisites. Customer will cooperate with and provide assistance to EnterpriseDB as EnterpriseDB may reasonably request in order to assist EnterpriseDB in the performance of Support, including, without limitation, providing all necessary assistance and information (according to the formats and templates specified by EnterpriseDB) to EnterpriseDB's support personnel reasonably required to enable such personnel to determine if a Customer problem is related to an Error or is due to some other issue. Customer will provide EnterpriseDB functioning test code which reproduces and isolates the Error. The test code will have extraneous comments and code removed and to the extent possible, will be fully self-contained and automated, and will demonstrate the precise Error reported rather than other possible problems. The test code must be reproducible on EnterpriseDB's test systems. If Customer finds it necessary or expedient to include third party code or libraries in the test code submitted to EnterpriseDB, Customer is responsible for obtaining permission from the applicable third party for such submission. If Customer cannot provide test code which reproduces the problem, EnterpriseDB may be unable to resolve the Error, but will be available to work with Customer to assist in the development of a test case. All Support is provided remotely from EnterpriseDB's offices. Customer will provide EnterpriseDB with access (via remote telecommunications and, if applicable, on-site access) at Customer's premises to the extent reasonably necessary to allow EnterpriseDB to provide the Support. Customer will bear all costs associated with procuring, installing and maintaining all equipment, telephone lines and communications interfaces necessary for EnterpriseDB to have the necessary telecommunications access to provide Support. If EnterpriseDB personnel travel to a Customer location for an issue that is not an Error in the Software, EnterpriseDB may charge Customer standard consulting rates plus travel and living expenses. Support for PostgreSQL obtained from a source other than: (a) an EnterpriseDB installer, (b) ftp.postgresql.org, (c) yum.postgresql.org, (d) apt.postgresql.org, or (e) Red Hat Enterprise Linux, Fedora, Ubuntu, CentOS, Amazon Linux, SuSE or Debian, as part of the operating system from the original vendor; will be supplied under the following qualified support terms: (i) a pre-sale evaluation of the PostgreSQL source and binary builds by EnterpriseDB possibly at additional cost to the Customer, (ii) written approval for Support by the VP of Development for EnterpriseDB, (iii) reported issues must be reproducible against the latest maintenance release of the given version of PostgreSQL from git.postgresql.org, (iv) bug fixes for PostgreSQL builds not deployed by an EnterpriseDB installer will be submitted in the form of source file patches to the customer and the PostgreSQL community, and (v) EnterpriseDB shall make best efforts advocating for the community's acceptance of the patch as fast as possible. EnterpriseDB will provide Support for open source components created and maintained within the PostgreSQL community when they are distributed by EnterpriseDB with modifications for compatibility with Postgres Plus Advanced Server. EnterpriseDB will make best efforts to provide support for open source components created and maintained within the PostgreSQL community and distributed 'as is' by EnterpriseDB.
4. Exclusions. EnterpriseDB will not provide Support in any of the following circumstances:
4.1 A failure of hardware, equipment or programs not covered by this Agreement;
4.2 Customer's failure to comply with operating instructions contained in the Documentation;
4.3 A modification, enhancement or customization of the Software;
4.4 Any cause or causes beyond the reasonable control of EnterpriseDB (e.g. floods, fires, loss of electricity or other utilities), errors arising from anything other than Software, such as databases, web-servers or hardware;
4.5 Installation, configuration, management and operation of the Customer's applications;
4.6 Software obtained from any place other than through the authorized remote computing services provider purchase processes; or
4.7 APIs interfaces or data formats other than those included with the Software.
4.8 Use of the Software for providing time-sharing services, service bureau services or as part of an application services provider or software as a service offering; EnterpriseDB will have no obligation to provide Support if Customer has not paid all applicable fees payable pursuant to this Agreement, or is otherwise not in compliance with the terms of this Agreement.
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