**WARNING** BY CLICKING ON THE "ACCEPT" BUTTON AND AS OF THE DATE THEREOF ("EFFECTIVE DATE"), YOU ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS SUBSCRIPTION AGREEMENT CONSISTING OF THIS PARAGRAPH AND THE FOLLOWING TERMS AND REFERENCED EXHIBITS (THE "AGREEMENT")". "YOU" MEANS THE NATURAL PERSON OR THE ENTITY THAT YOU REPRESENT ("CUSTOMER") THAT IS AGREEING TO BE BOUND BY THIS AGREEMENT. IF A SEPARATE WRITTEN AGREEMENT WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT EXISTS BETWEEN CUSTOMER AND AZUL SYSTEMS, INC. ("AZUL"), THE TERMS OF THAT WRITTEN AGREEMENT (EXCLUDING ANY PRE-PRINTED OR OTHERWISE CONFLICTING TERMS OF ANY PURCHASE ORDER, CONFIRMATION OR SIMILAR DOCUMENT, WHICH WILL HAVE NO EFFECT AND WILL NOT BE CONSIDERED AGREED TO BY AZUL) SHALL TAKE PRECEDENCE OVER THIS AGREEMENT, AND YOU ACKNOWLEDGE THAT CUSTOMER IS BOUND BY THE TERMS OF THAT WRITTEN AGREEMENT. PROVISION OF THE PRODUCTS AND SERVICES IS CONDITIONED ON, AND CUSTOMER'S INSTALLATION OR USE OF THE PRODUCTS OR SERVICES SHALL CONSTITUTE, CUSTOMER'S ASSENT TO THE TERMS OF THIS AGREEMENT OR OF SUCH EXISTING SEPARATE WRITTEN AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. IF CUSTOMER DOES NOT UNCONDITIONALLY AGREE TO THE FOREGOING, CLICK THE "CANCEL" BUTTON AND THE DOWNLOAD OR INSTALLATION PROCESS (AS APPROPRIATE) WILL NOT CONTINUE. IF YOU CONTINUE WITH DOWNLOAD, INSTALLATION OR USE, YOU ARE REPRESENTING AND WARRANTING THAT YOU ARE AUTHORIZED TO BIND CUSTOMER.
AZUL SUBSCRIPTION AGREEMENTTERMS AND CONDITIONS
1. Grant of Product License and Restrictions. Subject to Customer's compliance with all of the terms hereof, payment of all fees, and any applicable use limitations or other restrictions, Azul shall provide the Software Services for, and grants Customer the Product License to, the Product (all as defined and further set forth in the applicable Exhibit A) as set forth on each Order Form (as defined below). Customer will not (and will not allow any third party to) possess or use any Product, or allow the transfer, transmission, export, or re-export of any Product or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department's Office of Foreign Assets Control, or any other government agency. All the limitations and restrictions on Products in this Agreement also apply to documentation and screens. Customer acknowledges that the Product is distributed alongside or contain or use certain third party and/or open source software ("Third Party Software"). THIRD PARTY SOFTWARE IS SUBJECT TO AND GOVERNED BY (AND CUSTOMER AGREES TO, AND WILL INDEMNIFY AZUL FOR CUSTOMER's NONCOMPLIANCE WITH) THE THIRD PARTY SOFTWARE LICENSES AS DEFINED IN THE APPLICABLE EXHIBIT A (the "Third Party Software Licenses"). Nothing in this Agreement limits any right Customer may have under Third Party Software Licenses. For avoidance of doubt, a Product licensed without charge or for a nominal charge ("Evaluation License") is subject to the terms of an Evaluation License Agreement between Azul and Customer and not this Agreement.
2. Support and Maintenance. While the Software Services for a Product have not expired or been terminated, and all applicable fees have been timely paid for each Software Services Term (as defined in Section 6), and Customer is otherwise in compliance with its obligations under this Agreement, Azul will use reasonable commercial efforts to provide support and maintenance services for that Product as and to the extent described in Exhibit B ("Support Services") and the applicable Exhibit A. Customer may not: (i) use Support Services to support installations or deployments of a Product on more Supported Instances (as defined in the applicable Exhibit A) than have been purchased; or (ii) use Support Services with the Premium Support Tier to support installations or deployments of a Product that have purchased Software Services with the Standard Support Tier only.
3. Professional Services. Upon execution of a mutually agreed Statement of Work (if applicable), Azul agrees to use reasonable commercial efforts to provide agreed upon professional services ("Professional Services"). If Azul cannot complete the Professional Services within the estimated days or if Azul provides additional Professional Services, Customer will pay Azul at its then-current daily rates for consultation. All payments for Professional Services shall be subject to the terms and conditions set forth in Section 4. Azul shall retain ownership of all right, title and interest in and to its preexisting software, technology, materials and other intellectual property, as well as all data, materials, software, ideas, concepts, designs, techniques, know-how, inventions, tools, works of authorship and any other technology or information resulting from or arising in the course of performance of the Professional Services, and all related intellectual property rights. Customer acknowledges and agrees that nothing in this Agreement shall restrict or prevent Azul from providing Professional Services of any nature to any other person or entity.
4. Fees and Payment.
4.1. Customer agrees to pay to Azul (or the Business Partner, as defined below, from whom Software Services or Professional Services are purchased) the fees for Software Services and Professional Services as set forth in an applicable Order (as defined below). Fees for Software Services and subsequent renewals are paid up front in advance of the initial term or renewal term, as applicable.
4.2. Software Services and Professional Services are ordered by (i) Customer completing and Customer and Azul both executing an order form in Azul's then current standard form identifying this Agreement ("Order Form"), or (ii) a subsequent Customer purchase order referencing the original Order Form by Order Form Reference Number where such purchase order has been accepted by Azul in writing (in either case, an "Order"). Azul shall invoice Customer for the fees owed: (a) for new Software Services, on or after receipt of an Order, (b) for Software Services renewals, no earlier than sixty (60) days prior to the end of the then-current term, and (c) for Professional Services, after the Professional Services have been completed. In addition, Customer will pay all taxes, shipping, duties, withholdings, backup withholding and the like; when Azul has the legal obligation to pay or collect such taxes, the appropriate amount shall be paid by Customer directly to Azul. Payments must be made in the currency specified on the original Order Form within thirty (30) days from the date of invoice. Any payments more than thirty (30) days overdue will bear a late payment fee of 1.5% per month, or, if lower, the maximum rate allowed by law. For Software Services or Professional Services purchased through a Business Partner, this Section 4.2 shall have no force or effect.
5. Audits. Azul will be entitled to audit or have audited all systems and records relevant to assure compliance with this Agreement and to verify that Customer has paid the appropriate Software Services fees. If any underpayments are revealed by any such audit (or if Customer otherwise becomes aware of any underpayments), Customer shall promptly pay any underpayments. Any such audit will be performed at Azul's expense during Customer's normal business hours, upon no less than twenty (20) days prior written notice from Azul, and will not exceed once per calendar year. Customer shall promptly reimburse Azul for the cost of such audit and any applicable fees if such audit reveals (i) an underpayment by Customer of more than five percent (5%) of the amounts payable by Customer to Azul for the period audited, or (ii) material noncompliance with any other terms and conditions of this Agreement.
6. Term and Termination.
6.1. Termination of the Agreement. The term of this Agreement will begin on the Effective Date and will terminate after ninety (90) days following written notice of termination given by one party to another. Notwithstanding the foregoing, termination of this Agreement will not operate to terminate any active Software Services, and the terms and conditions of this Agreement will continue in full force and effect (except no new or renewals of Software Services may be purchased) until the latest expiration of any Software Services covered under this Agreement. At Azul's option, the Agreement, and/or any or all Software Services Term(s) and associated Support Services may be terminated for any material breach of this Agreement by Customer, subject to a thirty (30) day notification and such material breach remaining uncured after such notice period. Without written approval from Azul, distributing the Product or any portion thereof or using the Software Services for the benefit of a third party is a material breach of this Agreement even though the applicable Product License or Third Party Software Licenses may give Customer the right to distribute the Product or portions thereof (and this sentence does not interfere with any such rights of Customer under the applicable Product License or Third Party Software Licenses).
6.2. Termination of Software Services. Each Software Services hereunder shall begin as of the date set forth on the application Order Form, and shall continue for the initial term set forth on such Order Form. Following such initial term, each Software Services hereunder shall automatically renew for successive terms equal in length to the initial term; provided that either party may terminate Software Services by giving notice to the other of its intention not to renew no later than sixty (60) days before the end of the then-current term. Unless such notice is timely given, such Software Services will renew as set forth above. Renewals of Software Services will be at the same price as the fees paid for the then-current term, unless otherwise notified in writing by Azul (or the Business Partner from whom Software Services are purchased through). For each Software Services, the initial term, together with any renewals thereof, is referred to as the "Software Services Term".
6.3. Effect of Termination. Upon the termination of this Agreement, all licenses granted hereunder (except for licenses granted on a perpetual basis and only if a material breach of this Agreement has not occurred) shall immediately terminate and Customer shall immediately cease all use of all affected Products and return or destroy all copies of all affected Products and all portions thereof and so certify to Azul. Any rights, obligations and duties herein which by their nature extend beyond the expiration or termination hereof shall survive any cancellation, expiration or termination hereof. Termination is not an exclusive remedy and all other remedies will be available whether or not termination occurs.
7. Indemnification. Except in the case of an Evaluation License and subject to any restrictions as provided in an applicable Exhibit A, Azul shall hold Customer harmless from amounts actually paid to third parties resulting from a claim by such third party that a Product infringes any validly issued United States patent issued sixty (60) days or more before the beginning of the Software Services Term applicable to such Product, or infringes any copyright or misappropriates any trade secret, provided Azul is notified within thirty (30) days of any and all threats, claims and proceedings related thereto and given reasonable assistance by Customer at Azul's expense, and the opportunity to assume sole control over defense and settlement; Azul will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to a Product or portions or components thereof (i) not created by Azul (including, without limitation, Third Party Software) except as provided for in an applicable Schedule A, (ii) made in whole or in part in accordance to Customer specifications, (iii) that are modified after delivery by Azul, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer's use of such Product is not strictly in accordance herewith. Azul will not indemnify Customer for any infringement claim that is based on: (1) a patent that Customer was made aware of prior to the Effective Date of this Agreement (pursuant to a claim, demand, or notice); or (2) Customer's actions prior to the Effective Date of this Agreement. Customer will indemnify Azul from all damages, costs, settlements, attorneys' fees and expenses related to (I) any claim of infringement or misappropriation excluded from Azul's indemnity obligation by the preceding sentence, or (II) any other claim in connection with the Product or the use or distribution thereof. This Section 7 provides Customer's exclusive remedy (and Azul's sole liability) for any infringement claims or damages.
8. Limited Warranty and Disclaimer. Except in the case of an Evaluation License, Azul warrants for a period of ninety (90) days from the beginning of the applicable Software Services Term that the Product will materially conform to Azul's then current user documentation for such Product. This warranty covers only problems reported to Azul during the warranty period. ANY LIABILITY OF AZUL WITH RESPECT TO A PRODUCT OR THE PERFORMANCE THEREOF UNDER ANY WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY WILL BE LIMITED EXCLUSIVELY TO PRODUCT REPLACEMENT OR, IF REPLACEMENT IS INADEQUATE AS A REMEDY OR, IN AZUL'S OPINION, IMPRACTICAL, TO A REFUND OF AN APPROPRIATE PORTION THE REMAINING UNAMORTIZED SOFTWARE SERVICES FEE PAID BY CUSTOMER FOR THE PRODUCT THAT IS THE SUBJECT OF THE CLAIM. EXCEPT FOR THE FOREGOING WARRANTY BY AZUL, ALL PRODUCTS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND FROM ANYONE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FURTHER, AZUL DOES NOT WARRANT RESULTS OF USE OR THAT THE PRODUCTS ARE BUG FREE OR THAT THE PRODUCT'S USE WILL BE UNINTERRUPTED.
9. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE HEREIN OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, NEITHER AZUL NOR ANY OF ITS LICENSORS SHALL BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER HEREOF OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO IT HEREUNDER WITH RESPECT TO THE APPLICABLE PRODUCT OR SERVICES DURING THE SIX MONTH PERIOD PRIOR TO THE CAUSE OF ACTION OR (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (III) FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES; (IV) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (V) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. THE PRODUCT IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE WHERE THE FAILURE OF THE PRODUCT COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SIGNIFICANT PHYSICAL OR ENVIRONMENTAL DAMAGE ("HIGH RISK ACTIVITIES"). USE OF THE PRODUCT IN HIGH RISK ACTIVITIES IS NOT AUTHORIZED. THE PARTIES AGREE THAT THIS SECTION 9 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT AZUL WOULD NOT PROCEED IN THE ABSENCE OF SUCH ALLOCATION.
10. Confidentiality. During the term of this Agreement, each party (a "Disclosing Party") may provide the other party (a "Receiving Party") with confidential and/or proprietary materials and information ("Confidential Information"), including, in the case of Azul, all software, code, algorithms, or know-how it provides hereunder. All materials and information provided by Disclosing Party to Receiving Party and identified at the time of disclosure as "Confidential" or bearing a similar legend, and all other information that the Receiving Party reasonably should have known was the Confidential Information of the Disclosing Party, shall be deemed Confidential Information. Without limiting the foregoing, all Products are Confidential Information of Azul. Receiving Party shall maintain the confidentiality of the Confidential Information and will not disclose such information to any third party without the prior written consent of Disclosing Party. Receiving Party will only use the Confidential Information internally for the purposes contemplated hereunder. The obligations in this Section 10 shall not apply to any information that: (i) is made generally available to the public without breach of this Agreement, (ii) is developed by the Receiving Party independently from the Confidential Information, (iii) is rightfully disclosed to Receiving Party by a third party without restriction, or (iv) was in the Receiving Party's lawful possession or known to it prior to the disclosure, without any confidentiality restriction. Receiving Party may disclose Confidential Information as required by law or court order; provided that, Receiving Party provides Disclosing Party with prompt written notice thereof and uses its best efforts to limit disclosure. At any time, upon Disclosing Party's request, Receiving Party shall return to Disclosing Party all Disclosing Party's Confidential Information in its possession, including, without limitation, all copies and extracts thereof. This Section 10 survives the termination or expiration of this Agreement for a period of three (3) years from the later of the date of last disclosure of Confidential Information by the Disclosing Party or receipt of Confidential Information by the Receiving Party.
11. Publicity. Azul may use Customer's name and logo in client listings. Neither party may issue a press release or any other publicity concerning this Agreement or the relationship contemplated herein, without the prior written consent of the other. Either party's use of any trademark, logo, trade name or other similar identifier or designation of the other party in connection with any such press release or publicity shall be subject to (a) prior written consent of the other party and (b) compliance with any trademark usage guidelines promulgated by the other party from time to time.
12. Inspection; Diagnostic Data Access and Use. Azul and its agents will be entitled to inspect the installation and configuration of the Products and the systems on which they are installed from time to time on reasonable notice. Provided it does not identify Customer, Azul and its agents will be free to use for development, diagnostic and corrective purposes any data and information it so collects relating to diagnosis, problems, systems, performance, use or functionality.
13. Business Partners. Azul has entered into agreements with other authorized organizations, including but not limited to resellers, distributors, and consultants, to promote, market, sell and support certain Azul products and services (such organizations are "Business Partners"). When Customer purchases Software Services and/or Professional Services through a Business Partner, Azul confirms that it is responsible for providing the Product, associated Support Services, and/or Professional Services to Customer under the terms of this Agreement. Azul is not responsible for (a) the actions of Business Partners, (b) any additional obligations Business Partners have to Customer, or (c) any products or services that Business Partners supply to Customer under any separate agreements between a Business Partner and Customer.
14. Order Forms and Conflict of Terms. Software Services and Professional Services are ordered by completing and executing an Order Form in Azul's then-current standard form identifying this Agreement. When executed by both Azul and Customer, such Order Forms will become part of this Agreement, including any terms specified in the "Additional Terms" section on a mutually executed Order Form ("Additional Terms"). Capitalized terms not defined herein shall have the meaning set forth in the Order Form. When accepted by Azul, a purchase order meeting the requirements set forth in Section 4.2 (a "PO") will become part of this Agreement, excluding any terms or conditions of such PO which conflict with or are inconsistent with any of the terms and conditions of this Agreement or any Order Form, which PO terms or conditions shall be of no force or effect. In the event of any conflict between the Additional Terms of an Order Form and this Agreement, the Additional Terms of the Order Form executed by both parties shall control. For Software Services or Professional Services purchased through a Business Partner, this Section 14 shall have no force or effect.
15. Miscellaneous. Any pre-printed or otherwise conflicting terms of any related purchase order, confirmation, or similar form (not including the Additional Terms of any Order Forms mutually executed by Azul and Customer), even if signed by the parties after the date hereof, shall have no force or effect. Neither this Agreement nor the licenses granted hereunder are assignable or transferable (and any attempt to do so shall be void); provided that either party may assign and transfer all of its rights and obligations hereunder to a successor to (as applicable) substantially all of Azul's Product business or assets or Customer's business for which Products are licensed and Support Services are provided. The provisions hereof are for the benefit of the parties only and not for any other person or entity. Any notice, report, approval, authorization, agreement or consent required or permitted hereunder shall be provided either in writing (and notices shall be sent to the address the applicable party has or may provide by written notice or, if there is no such address, the most recent address the party giving notice can locate using reasonable efforts) or via e-mail (if to Azul, at email@example.com, or if to Customer, at the e-mail address set forth on the most recent Order Form, or such other e-mail address as Customer has provided to Azul). No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. No right or license, express or implied, is granted in this Agreement for the use of any Azul or third party trade names, service marks or trademarks, including, without limitation, the distribution of the Products utilizing any Azul Trademarks. If any provision shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this arrangement shall otherwise remain in full force and effect and enforceable. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act. This is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof and any waivers or amendments shall be effective only if made in writing. The substantially prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorney's fees and costs in connection with such action. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all Products and accompanying documentation provided by Azul are "commercial items," "commercial computer software" and/or "commercial computer software documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by these terms and shall be prohibited except to the extent expressly permitted by these terms. Except for nonpayment, neither party shall be liable for nonperformance or delays caused by, but not limited to, acts of God, wars, riots, strikes, fires, floods, hurricanes, earthquakes, terrorist acts, telecommunications/internet outages that is not caused by the obligated party, government restrictions (including the denial or cancellation of any export or other license), or other causes outside the reasonable control of the obligated party. Neither party is excused from taking reasonable steps to follow its normal disaster recovery procedures or its obligation to pay for Software Services or Professional Services delivered.
EXHIBIT A-1LICENSED PRODUCT: "ZING"Product:* Includes Zing LX, including the Zing Virtual Machine for Java applications, Zing System Tools, and Zing Vision.
Product License:Azul grants Customer a time-based (during the applicable Software Services Term), without rights to sublicense, worldwide, nontransferable (except in connection with a permitted assignment pursuant to Section 15), nonexclusive right to use the Product in object code form only. Customer may only use the Product on Systems for which Customer has purchased a Supported Instance and solely in connection with Customer's internal business operations. Customer may make copies of the Product for back-up purposes; provided that Azul retains ownership of all copies and Customer will maintain the copyright notice and any other notices that appear on the Product on any copies and any media and will destroy all such copies at the end of the applicable Software Services Term if not renewed. Customer will not (and will not allow any third party to) (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Product (except to the extent that applicable law prohibits reverse engineering restrictions); (ii) provide, lease, lend, disclose, use for timesharing or service bureau purposes, or otherwise use or allow others to use for the benefit of any third party, the Product (except as expressly and specifically authorized by Azul in writing); (iii) disclose to any third party any benchmarking or comparative study involving any Product (except as expressly and specifically authorized by Azul in writing); (iv) modify or create derivative works of any Product; or (v) remove or alter any copyright, trademark, or other proprietary notice from the Product or any portion thereof. Prior to disposing of any media or apparatus containing any part of the Product, Customer shall completely destroy any Product contained therein.
CUSTOMER ACKNOWLEDGES THAT THE PRODUCT MAY INCLUDE FEATURES TO PREVENT USE AFTER THE APPLICABLE SOFTWARE SERVICES TERM AND/OR USE INCONSISTENT HEREWITH.
Notwithstanding anything to the contrary herein, the Product License does not limit or supersede any rights Customer has as a result of Third Party Software Licenses.
Software Services: Time-based Product License (as described above) and associated Support Services for the Product during the term of the Product License.
Support Services Restrictions: Support Services will not be provided for the Product for use in web browsers or use with the Java Web Start framework.
Third Party Software Licenses: As listed at http://www.azulsystems.com/license/zing_third_party_licenses.html.
Indemnification: Indemnification as described in Section 7.
* "System" means a physical hardware system capable of running the Product, including without limitation a computer, server, workstation, laptop, individual blade or other physical system, as applicable.
* "Physical Node" means a System that includes up to two (2) processor sockets, where each processor socket may include an unlimited number of processing cores. For Systems with more than two (2) processor sockets, one Supported Instance is required for each two (2) processor sockets.
* "Virtual Node" means a virtual machine that includes up to thirty-two (32) virtual processing cores. For virtual machines with more than thirty-two (32) virtual processing cores, one Supported Instance is required for each thirty-two (32) virtual processor cores.
* "Supported Instance" means Software Services with (i) one or more instances of Zing System Tools and Zing Virtual Machine for Java applications running on either (a) one (1) Physical Node or (b) one (1) Virtual Node; and (ii) one or more instances of Zing Vision running on an unlimited number of Physical Nodes or Virtual Nodes.
EXHIBIT A-2LICENSED PRODUCT: "ZULU"Product:Zulu Enterprise
Product License:Azul grants Customer a perpetual, worldwide, nonexclusive right to use and reproduce the Product pursuant to the GNU General Public License, version 2; provided that (i) certain files or components may instead be subject to the GNU General Public License, version 2, with the Classpath Exception (http://openjdk.java.net/legal/gplv2+ce.html), and (ii) certain Third Party Software is instead licensed pursuant to the relevant terms set forth below in the Third Party Software Licenses. Customer will not remove or alter any copyright, trademark, or other proprietary notice from the Product or any portion thereof. Notwithstanding anything to the contrary herein, the Product License does not limit or supersede any rights Customer has as a result of Third Party Software Licenses.
Software Services: Time-based Support Services for the Product.
Third Party Software Licenses: As listed at http://www.azulsystems.com/license/zulu_third_party_licenses.html.
Indemnification: For Support Services purchased with the Premium Support Tier, Indemnification as described in Section 7 will include portions or components of the Product which include Third Party Software.
* "Supported Instance" means Software Services with one or more instances of the Product running on either (a) one (1) Physical Node, or (b) one (1) Virtual Node.
SUPPORT AND MAINTENANCE SERVICES ("SUPPORT SERVICES") TERMS AND CONDITIONS
1. SUPPORT AND MAINTENANCE SERVICES. Support Services consist of (a) Error Correction provided to Customer's Designated Support Contacts concerning the installation and use of supported versions of the Product, (b) Product updates that Azul in its discretion makes generally available to its support and maintenance customers without additional charge, (c) access to Azul's support portal and download site, and (d) facilities for case and bug tracking, escalation of problems for priority attention, and assistance with troubleshooting to diagnose and fix errors in the Product. Certain benefits of Support Services depend on the support tier which has been selected and paid for by Customer (the "Support Tier"), as set forth in the table below:
2. ERROR PRIORITY LEVELS. Azul shall exercise commercially reasonable efforts to correct any Error reported by Customer in the current unmodified release of the Product in accordance with the priority level reasonably assigned to such Error by Azul.
* Priority 1 Errors means a report that the Product is failing to perform in accordance with the Documentation and that such failure is reproducible and makes one or more critical functions of the Product inoperable. To be classified as Priority 1, an Error must (i) prevent a Customer from conducting critical and primary business functions (that are consistent with the Product's intended use and functions) in a production environment, and (ii) have no immediate fix or work-around. For Priority 1 Errors, Azul shall commence the following procedures: (i) assign Azul engineers to diagnose the Error; (ii) notify Azul management that such Errors have been reported and of steps being taken to correct such Error(s); (iii) provide Customer with periodic reports on the status of the corrections; and (iv) immediately initiate work on a prioritized basis to provide Customer with a Workaround or Fix as soon as commercially reasonable.
* Priority 2 Errors means a report that the Product is functioning but in a significantly degraded or restricted capacity. To be classified as Priority 2, an Error must be reproducible and (i) cause a high impact on some portion of Customer's primary business functions (that are consistent with the Product's intended use and functions) in a production environment, and (ii) have no immediate fix or work-around. For Priority 2 Errors, Azul shall commence the following procedures: (i) assign Azul engineers to diagnose the Error; (ii) notify Azul management that such Errors have been reported and of steps being taken to correct such Error(s); (iii) provide Customer with periodic reports on the status of the corrections; and (iv) initiate work to provide Customer with a Workaround or Fix as soon as commercially reasonable.
* Priority 3 Errors means a report of degraded operations of the Product and reproducible limited condition that causes a slight or non-critical failure of the Product to function according to the Documentation. Azul shall exercise commercially reasonable efforts to include a Fix for the Error in the next regular Product release.
* Priority 4 Errors means a report of minimal impact and means a minor problem or error(s) in the Documentation, a desired change in the Product which can be easily circumvented or avoided, or a Product enhancement request. Azul may, at its sole option, include a Fix for the Error or the requested enhancement in a future release of the Product.
3. EXCLUSIONS. Azul shall have no obligation to support: (i) altered or damaged Products; (ii) any version of a Product that is not currently supported per the Product Lifecycle Policy; (iii) any Product that is not obtained directly from Azul or a Business Partner, (iv) Product problems caused by Customer's negligence, abuse or misapplication use of Products other than as specified in the Documentation or other causes beyond the control of Azul; or (v) Products installed on any hardware that is not supported by Azul. Azul shall have no liability for any changes in Customer's hardware which may be necessary to use Products including but not limited to a Workaround, Fix, or update to the Product.
4. CUSTOMER RESPONSIBILITIES. Customer shall exercise commercially reasonable efforts in cooperating with and providing information to Azul with regard to Support Services. Customer is required to assist Azul until problem resolution. Required Customer activities may include logging into Customer's systems for diagnosis of problems, downloading and installation of software patches, retrieval and transfer of system logs/files, re-installation of the Product, and participation in tests for fixes.
5. CASE RESOLUTION PROCESS. Using good faith and reasonable judgment, Customer will assign an initial Priority Level to each report prior to reporting it to Azul, and Azul will assign a unique tracking number to each report as it is reported. Using good faith and reasonable judgment, Azul may change the Priority Level of a report. Azul will assign technical support resources and provide progress reports for each report, using commercially reasonable efforts to do so, in accordance with Section 2.
6. TARGET RESPONSE TIME. A response to a request for Support Services shall consist of receipt of and acknowledgement by Azul of Customer's request for Support Services (the "First Response"). Azul will use commercially reasonable efforts to provide a First Response within the target SLA response time set forth in the table below. Customer acknowledges that a First Response may not include resolution for all requests for Support Services. However, Customer acknowledges and understands that no software is perfect or error free and that, despite Azul's commercially reasonable efforts, Azul may not be able to provide answers to or resolve some or all requests for Support Services. Azul makes no promises, guarantees, or assurances of any kind that it will be able to resolve all of Customer's Support Services requests.
7. PRODUCT LIFECYCLE POLICY. For Customers who have purchased Support Services, Azul offers ten (10) years of support from the general availability of a new Major Release, divided into two distinct phases: Production Support and Extended Support.
* Production Support is eight (8) years from general availability of a Major Release. The Production Support phase includes maintenance updates, Error corrections, and security vulnerability resolutions, and may include feature enhancements. Maintenance updates and Error corrections will be made to the latest Minor Release and Minor Sustained Release only, while security vulnerability resolutions will be made to supported Minor Releases. Minor Releases will be supported a minimum of twelve (12) months from the general availability of the Minor Release, and Minor Sustained Releases will be supported through the end of the Production Support period.
* Extended Support is two (2) years following the end of Production Support. The Extended Support phase supports product releases that have gone beyond the Production Support phase of the product lifecycle. During Extended Support, support is delivered primarily in the form of identifying Workarounds, and Azul may direct Customer to upgrade to a more current Major, Minor, or Maintenance Release of the Product in order to resolve issues. During the Extended Support phase, no Minor or Maintenance Releases are expected to be delivered, the exception being certain security vulnerability resolutions that may be made available.
In the event that Production Support for a release would normally expire and no later release has been made generally available, support for the old release will be extended until such a time as a new release is made generally available to those receiving Support Services.
In the event that support for a Product release would normally expire and no further Product releases are planned, the Product may be end-of-lifed (EOL). The decision to end-of-life any Product will be announced twelve (12) months ahead of the date that support for all releases of any Product will no longer be available or supported.
8. DESIGNATED SUPPORT CONTACTS Customer may only contact Azul through Customer's Designated Support Contacts. Customer may designate up to the number of contacts as set forth in the table below based on the number of Supported Instances purchased and the Support Tier selected and paid for by Customer. Azul will provide Support Services to Customers solely by communicating during the hours of coverage with the individual Designated Support Contact(s) appointed by Customer. Customer may change the Designated Support Contacts by notifying Azul in writing.
9. APPLICATION GUARD. Customers who have selected and paid for Premium Support Services are eligible for the Application Guard ("AppGuard") service. With AppGuard (and with AppGuard fees paid as appropriate), the Customer defines a specific operating system, hypervisor, and microprocessor architecture combination and configurations thereof, in addition to any supported releases of the Product in use by the Customer (collectively, the "Target Environment"). Upon Azul's approval of a Target Environment (the approval of which may be withheld for any reason) and throughout the term of the Support Services, Azul will test all the then-current Minor Releases for each Major Release, in addition to the Product releases as specified in the Target Environment, of the Product then currently supported against the Target Environment using a set of quality assurance tests and processes. Upon completion of such testing for each Target Environment, Azul will provide a written report which summarizes the results of the testing and make available all versions of the Product which have passed such testing via the Customer's private access area on Azul's support portal. Customer may request additional tests be included in the AppGuard testing processes, subject to Azul's sole approval (which may be withheld for any reason) to utilize such recommended tests. Customer may change the definition of a specific Target Environment no more than three (3) times per year by providing written notification to Azul; upon Azul's approval of such change (which may be withheld for any reason) all subsequent AppGuard testing will be performed on the new Target Environment and no AppGuard testing will be performed on the previously defined Target Environment.
10. TECHNICAL ACCOUNT MANAGER. Customers who have selected and paid for Premium Support Services are eligible to purchase full time equivalent ("FTE") service time allocation from an Azul Technical Account Manager ("TAM"). The role and duties of the TAM may include: (a) assist in the planning and support of the testing and production deployment of the Product, (b) build and document knowledge about Customer's business and technical operations relevant to the Product, (c) log bugs and feature requests relevant to the Product in Azul's case management system, (d) identify and coordinate training as necessary relevant to the Product, (e) promote effective communication between Azul and Customer on all relevant Product and Support Services issues (including Product roadmap disclosure) via bi-weekly calls/meetings, and (f) advocate on Customer's behalf within Azul and with Azul's executives. At its option, Customer may provide the TAM access to Customer's internal systems and calendars as necessary and appropriate for the TAM to perform the above described duties. All travel related costs incurred by Azul in connection with providing TAM services will be paid by Customer.
* "Business Day" means a day during Azul's Standard Business Hours
* "Business Hour" means an hour during Azul's Standard Business Hours
* "Documentation" means the official Product documentation made available by Azul with the Product, which may be modified from time to time.
*"Early Access" means a version of the Product containing upcoming Fixes which is not yet subject to general release, which is released by Azul to Customers who have selected a Support Tier which includes Early Access.
* "Error" means a reproducible failure of the Product to substantially conform to the functionality and specifications as described in the Documentation.
* "Error Correction" means the use of reasonable commercial efforts to correct Errors.
* "Fix" means the repair or replacement of object or executable code versions of a Product or Documentation to remedy an Error.
* "Hot Fixes" means a preliminary version of the Product containing upcoming Fixes which is not yet subject to general release or Early Access, which is released by Azul to Customers who have selected a Support Tier which includes Hot Fix access.
* "Major Release" (X.y.z) means a release which may deliver significant new features, enhancements to existing features, or performance improvements, as well as Error corrections. Major Releases incorporate all applicable Fixes made in prior Major Releases, Minor Releases, and Maintenance Releases.
* "Minor Release" (x.Y.z) means a release which may deliver minor new features, enhancements to existing features, or performance improvements, as well as Error corrections. Minor Releases incorporate all applicable Fixes made in prior Minor Releases and Maintenance Releases.
* "Minor Sustained Release" (x.Y.z) means a Minor Release which has been identified by Azul to be supported until the end of the Production Support period of the associated Major Release.
* "Maintenance Release" (x.y.Z) means a release which may deliver Error corrections that are severely affecting a number of customers and cannot wait for the next Major or Minor Release. Maintenance Releases incorporate all applicable Error corrections made in prior Maintenance Releases. Maintenance Releases are released as needed based on customer feedback and outstanding Errors.
* "Standard Business Hours" means between 7:00AM and 7:00PM Pacific Time on Azul's regular (non-holiday) business days
* "Ticket" means a formal support case opened by or on behalf of Customer, where each case or trouble ticket documents a unique issue requiring investigation and resolution.
* "Workaround" means a change in the procedures followed or data supplied by Customer to avoid an Error without substantially impairing Customer's use of a Product.
THESE TERMS AND CONDITIONS CONSTITUTE A SERVICE CONTRACT AND NOT A PRODUCT WARRANTY. ALL PRODUCTS AND MATERIALS RELATED THERETO ARE SUBJECT EXCLUSIVELY TO THE WARRANTIES SET FORTH IN THE AGREEMENT. THIS ATTACHMENT IS AN ADDITIONAL PART OF THE AGREEMENT AND DOES NOT CHANGE OR SUPERSEDE ANY TERM OF THE AGREEMENT EXCEPT TO THE EXTENT UNAMBIGUOUSLY CONTRARY THERETO.
This Azul Subscription Agreement and referenced Exhibits are Azul Systems Confidential
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