DIAMANTI SUPPORT AGREEMENT

BY USING OR RECEIVING DIAMANTI SUPPORT SERVICES (“SUPPORT”), YOU (A) REPRESENT THAT YOU MAY BIND YOURSELF, OR IF YOU ARE APPROVING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE RIGHT TO BIND THAT COMPANY OR LEGAL ENTITY (COLLECTIVELY “CUSTOMER”); (B) REPRESENT THAT CUSTOMER HAS READ AND UNDERSTANDS THIS AGREEMENT; (C) REPRESENT AND WARRANT THAT ANY INFORMATION THAT CUSTOMER PROVIDES DIAMANTI WILL BE ACCURATE AND MAY BE RELIED UPON BY DIAMANTI; AND (D) AGREE TO BE BOUND BY THIS AGREEMENT. THIS AGREEMENT APPLIES TO SUPPORT PURCHASED BY CUSTOMER FOR THE PRODUCT(S) THAT CUSTOMER HAS RECEIVED, EITHER DIRECTLY FROM DIAMANTI OR FROM A RESELLER, AS FURTHER DEFINED BELOW.

 

1. DEFINITIONS

1.1 “Documentation” means such manuals, documentation and any other supporting materials relating to the Software as currently maintained by Diamanti and generally provided to its licensees.

1.2 “Error” means any reproduceable failure of the Equipment or Software to perform any material function as set forth in Documentation.

1.3 “Equipment” means Diamanti branded hardware, or hardware provided by Diamanti, to run the Software.

1.4 “Licensed Materials” means the Software and Documentation.

1.5 “Permanent Solution” means a resolution to a problem that causes the Equipment or Software to substantially conform with specifications.

1.6 “Reseller” means a third party that is authorized to resell Equipment, Licensed Materials and Support to Customer.

1.7 “Software” means the object code version of the computer software provided to Licensee under this Agreement, any extracts from such software, derivative works of such software or collective works constituting such software (such as subsequent releases) to the extent offered to Licensee under this Agreement, and the related Documentation. Software may include third party software licensed to Diamanti. Software shall not mean software subject to open source, GPL or similar licensing terms which may be included with the Software. Applicable copyright notices and open source, GPL or similar licensing terms can be found at www.diamanti.com/thirdpartysoftware.

1.8 “Software Upgrades/Enhancements” means any new release of Software providing error corrections, improved usability, improved performance, and/or enhancements, each of which are distributed on a when-and-if-available basis free of charge to Customer receiving Software maintenance. Software Upgrade/Enhancement shall not include Software whether currently existing or developed in the future, which is marketed and offered by Diamanti to its customers generally as a separate product.

1.9 “Support Term” means the term of Support (e.g., one-year, three-years or five-years).

1.10 “Work Around” means a temporary resolution that restores the service and operation of the Equipment or Software without material loss of functionality.

 

2. TERM OF SUPPORT

The Support Term shall commence upon shipment of the Equipment and/or Software and, subject to timely payment, shall continue through the Support Term. Support is non-cancelable and non-transferable.

 

3. SOFTWARE SUPPORT

During the Support Term:

3.1 Diamanti shall (a) repair or replace defective media on which any Software is furnished, caused by defects in materials and workmanship under normal use, and (b) use commercially reasonable efforts to correct or modify any Software so as to conform in all material respects with its specifications. In this regard, Diamanti may provide Software Upgrades/Enhancements to correct or modify the documentation, or provide a Permanent Solution or Work Around (as further described below) to the Software, all at no additional charge to Customer. Diamanti does not warrant that Customer’s use of the Software will be uninterrupted or error free.

3.2 Diamanti will provide Customer with any Software Upgrades/Enhancements for the Software at no additional charge. Software Upgrades/Enhancements, bug fixes, Permanent Solutions and Work Arounds may be made available electronically.

3.3 Permanent Solutions. Diamanti shall use commercially reasonable efforts to deliver a Permanent Solution to Customer in Diamanti’s next regularly scheduled Software Upgrade/Enhancement. A Permanent Solution may include a patch, if such patch can be deployed in the Software without affecting service or operation. If such a patch cannot be provided, Diamanti shall use commercially reasonable efforts to provide a Work Around.

3.4 Work Arounds. A Work Around may consist of a patch or instructions on how to avoid the problem. If possible, a Work Around shall be capable of being installed, without undue interruption or degradation of service or operation, in the Software.

 

4. SUPPORT SERVICES

4.1 Diamanti offers the following Support services:

4.1.1 Developer Support Service. Diamanti will provide telephone help desk support subject to the targeted response times below, between the hours of 9 AM to 5 PM PST, Monday through Friday. Any necessary replacement part(s) will be dispatched to arrive within three (3) business days provided that determination (see Section 4.4) is made before 3 PM PST that any replacement part(s) are required in order for the Equipment to conform to its published specifications.

4.1.2 Production Support Service. Diamanti will provide telephone help desk support subject to the targeted response times below, twenty-four (24) hours a day, seven (7) days per week. Any necessary replacement part(s) will be dispatched to arrive the next business day provided that determination (see Section 4.4) is made before 3 PM PST that any replacement part(s) are required in order for the Equipment to conform to its published specifications.

4.1.3 Premium Support Service. Diamanti will provide telephone help desk support subject to the targeted responses time below, twenty-four (24) hours a day, seven (7) days per week. Any necessary replacement part(s) will be dispatched to arrive within four (4) hours after determining (see Section 4.4) that any replacement part(s) are required in order for the Equipment to conform to its published specifications. Alternatively, Customer shall permit Diamanti to store parts at the site where the relevant Equipment is located in order for Diamanti to meet the said response time.

4.2 Defective parts must be returned pursuant to Diamanti’s return material authorization (“RMA”) policy located on Diamanti’s support portal. Diamanti reserves the right to charge Customer the cost of any replacement part if Customer fails to comply with its RMA policy. Notwithstanding the foregoing, in the event Customer has purchased and paid for contemporaneously with its Equipment purchase, SSD component insurance to keep a non-conforming SSD, and Customer certifies (at a director level or above) that an SSD is defective and unusable, then Customer shall not be obliged to return the SSD and will receive a replacement SSD. Returned parts shall become the property of Diamanti.

4.3 Response Times. Diamanti targets to provide responses for new cases in the timeframes outlined below based on the severity of the case:

Case Priority

Developer

Production

Premium

Severity 1

4 hours*

2 hours

1 hour

Severity 2

8 hours*

4 hours

2 hours

Severity 3

Next Business Day

8 hours

4 hours

Severity 4

Next Business Day

16 hours

8 hours

*Cases opened prior to 1:00 PM PST on a business day will be answered the same day. Cases opened after 1:00 PM PST may be answered on that business day or the next business day.

The case severity priority definitions are as follows:

Severity 1: Equipment has stopped working and is down.

Severity 2: Equipment is working but in a degraded state.

Severity 3: Equipment configuration issues.

Severity 4: Information and Enhancement requests.

 

4.4 Determination. For purposes of Section 4.1, determination that Equipment replacement parts are required will be made by a Diamanti Customer Support Engineer.

 

5. PROBLEM REPORTING

Diamanti will provide portal, email and telephone support to Customer on non-conformance issues relating to the Equipment and Software in accordance with the Response Timeframes set forth in Section 4.3.

Customers may notify Diamanti by telephone at US Toll Free +1 855-516-3767 or +1 408-805-3870 (International), by email ([email protected]), or by Diamanti support portal and shall provide (i) Customer name, email address, phone number, serial number(s) of the appliance(s) being reported, and (ii) a description of the problem encountered and how to repeat the condition which brought about the problem. Severity 1 and Severity 2 issues (defined in Section 4.3) must be opened by calling Diamanti customer support. Severity 1 and 2 cases cannot be opened via email or portal.

 

6. EXCLUSIONS

6.1 Diamanti has no obligations to perform Support in the event of any abuse, misuse, accident, alteration including alteration, modification and/or installation of unauthorized equipment or software, neglect, unauthorized maintenance, repair, installation or movement, or exposure to any condition or operating environment beyond Diamanti’s recommended physical, power, functional constraints or storage requirements (including temperature and/or humidity ranges).

6.2 The costs of configuration (after initial base configuration), reconfiguration, installation, de-installation, relocation, certification, supplies, accessories, media (unless covered by Section 3.1 above) and other expendables are also excluded and will be charged at Diamanti’s current prices in effect at the time such costs are incurred.

 

7. CUSTOMER RESPONSIBILITIES

7.1 Diamanti’s Support obligations are subject to:

a. Customer’s designation of personnel who have sufficient skill and training in using the Equipment and Software and who contact Diamanti for support (“Designated Personnel”) after first attempting to resolve the issue themselves;

b. Customer providing Diamanti reasonable access to Customer’s site and/or network and personnel as Diamanti reasonably requests to assist Diamanti in performing the Support;

c. Customer installation of Upgrades/Enhancements and recommended Equipment replacement parts, as reasonably directed by Diamanti;

d. Customer maintaining in place and complying with all licenses required with respect to the Software.

7.2 Customer shall back-up any data or other information stored or contained in or on any Equipment, part or Software returned to Diamanti, and Diamanti excludes any liability for the loss of the same while in Diamanti’s possession.

 

8. LIABILITY

8.1 EXCLUSION OF CERTAIN LOSSES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES WHATSEVER, OR FOR ANY LOSS OF GOODWILL, LOST PROFITS, LOSS OF BUSINESS OR LOST OPPORTUNITIES IN ANY WAY RELATING TO THIS AGREEMENT, EVEN IF A PARTY HAS BEEN NOTIFIED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, AND REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.

8.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF DIAMANTI EXCEED THE FEES PAID BY CUSTOMER FOR SUPPORT IN THE 12 MONTHS PRECEEDING THE DATE OF THE CLAIM. FOR PURPOSES OF THIS SECTION, A “CLAIM” SHALL MEAN, COLLECTIVELY, ALL CAUSES OF ACTION, DAMAGES, CLAIMS OR DISPUTES OR SIMILAR REQUESTS FOR COMPENSATION THAT ARE RELATED TO OR ARISE FROM THIS AGREEMENT AND FROM A PARTICULAR EVENT, ACT, OMISSION, FAILURE OR ROOT CAUSE.

 

9. GENERAL

9.1 Assignment.  Customer may not assign this Agreement or any of its rights or obligations under this Agreement, by operation of law or otherwise, without the prior written consent of Diamanti. This Agreement shall bind each party and its permitted successors and assigns.  Any assignment in contravention of this Section 9.1 shall be null and void and of no force or effect.

9.2 Disputes.  This Agreement shall be governed by and construed in accordance with the laws of California. The UN Convention on Contracts for the International Sale of Goods shall not apply. This Agreement is the entire agreement of the parties, and supersedes all prior or contemporaneous agreements, communications or representations, written or oral, between the parties with respect to the subject matter of this Agreement and represents the complete integration of the parties’ agreement.  Any different or additional terms of any related purchase order, confirmation, quote or similar ordering document, even if signed by the parties after the date hereof, shall have no force or effect on this Agreement.  If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the remaining provisions shall not be affected or impaired.  This Agreement may be modified only by a written agreement executed by authorized officers of each party.  No delay or omission to exercise any right or remedy accruing to a party upon any breach or default of the other party shall impair that right or remedy, or be construed to be a waiver of any breach or default.

9.3 Force Majeure. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, labor disputes, shortages of supplies, fire, war, disruption related to terrorism, epidemics, or delays of common carriers.  The obligations and rights of the excused party shall be extended on a day to day basis for the time period equal to the period of the excusable delay.