Terms & Conditions

General Terms

Terms for All Transactions

These General Terms, including all exhibits (“Terms”) apply to the sale and/or license of Products and Services by Open Drives, Inc., a Delaware corporation, including any of its affiliates (“Open Drives”) directly to a customer acquiring Products and Services for its own use (“Customer”), either from Open Drives directly or through an authorized distributor or reseller, unless Customer has entered into a separate agreement with Open Drives governing such sale. By ordering, accepting delivery, keeping, or using Products or otherwise proceeding with any transaction with Open Drives, Customer agrees to these Terms. Open Drives and Customer may each be referred to as a “Party” or collectively, as the “Parties.”

1.  DEFINITIONS

1.1  Documentation. Open Drives supplied then current technical documentation describing the features and functions of the associated Products.

1.2. Hardware. All Open Drives-branded hardware. For the avoidance of doubt the term “Hardware” as used herein shall expressly exclude any Third Party Branded Products.

1.3. License Limitations. The license metrics and other scope limitations applicable to the License, as may be specified in any Order Documentation.

1.4. Order Documentation. The applicable Open Drives price quotation and engagement document, if required, the corresponding Purchase Order, and the associated Documentation for the Products or Services purchased or licensed hereunder.

1.5. Products. Hardware, Software, associated Documentation, and any Third Party Branded Products.

1.6. Purchase Order. A written or electronic order provided to Open Drives consistent with the corresponding price quotation for the purchase of Products and Services.

1.7. Services. Open Drives’ consulting services, typically consisting of installation and implementation of Products (“Professional Services”) and/or its generally available technical support and maintenance services programs (“Support Services”).

1.8. Software. Open Drives software in object code or interpreted code formats as applicable to the operating system, networking, drivers, firmware, management software, user interface, as well as integration with backup, recovery, disaster recovery, storage efficiency, and storage resiliency.

1.9. Third Party Branded Products. Any hardware or software that is manufactured, developed, licensed or otherwise made available by any entity other than Open Drives and is distributed or licensed by Open Drives for use in conjunction with Hardware and Software.

2. ORDERS, DELIVERY and ACCEPTANCE

2. 1. Orders. All Purchase Orders are subject to acceptance by Open Drives, in its sole and absolute discretion.

2.2. Changes, Cancellation, and Rescheduling. Customer may reschedule a requested delivery date or location one time per Purchase Order without additional charge. Product returns are subject to Open Drives approval and applicable charges.

2.3. Delivery. Delivery of hardware and software occurs according to the applicable trade terms specified on the Open Drives price quotation

2.4. Risk of Loss / Transfer of Title. Risk of loss or damage to the Products will pass to Customer upon delivery per the applicable Purchase Order. Title to any hardware in the Products will pass to Customer upon shipment.

2.5. Acceptance. Acceptance by Customer of Products will occur upon delivery, and acceptance by Customer of Services will occur when such Services are rendered, unless otherwise agreed in an Open Drives engagement.

3. PRICING AND PAYMENTS

3.1. Pricing. A Purchase Order received after the effective date of a price change, but pursuant to a valid and current Open Drives quotation, will be invoiced at the price stated on the Open Drives quotation.

3.2. Payment Terms. Customer will make full payment in the currency specified in the invoice, without set-off and in immediately available funds, not later than thirty (30) days from the date of Open Drives’ invoice.

3.3. Remedies for Non-payment. Customer payment of an amount less than the invoice amount will not be deemed as acceptance of payment in full, nor will any endorsement or statement on any check or letter accompanying any payment or check be deemed an accord and satisfaction. Open Drives may accept such payment or check without prejudice to Open Drives’ right to recover the balance of any amount due or pursue any other remedy provided for in these Terms or by law or in equity. Open Drives has the right to apply any payment received from Customer to any account of Customer which is due and/or delinquent. If Customer fails to make timely payment, in addition to all other available remedies, Open Drives may decline to make further deliveries of Product and provision of Services to

3.4. Taxes and Duties. Customer is solely responsible for the payment of taxes (except taxes based on Open Drives’ net income), fees, duties and charges, and all related penalties and interest, that arise from its utilization or Open Drives’ provision of the Products and/or Services. If Customer is tax-exempt, then Customer will provide Open Drives with tax exemption certificates or other documentation acceptable to the taxing authorities not later than thirty (30) days from the date Customer places a Purchase Order with Open Drives. If Customer does not provide such documentation to Open Drives, Open Drives reserves the right to include such taxes in the invoice. In addition to the stated prices, Customer will be liable for all applicable duties, license fees and taxes for Products shipped across international borders in accordance with the applicable trade terms set forth in Section 2.3 or as otherwise may apply.

4. SOFTWARE LICENSE

4.1. License Grant. Subject to these Terms and any limitations or restrictions set forth in the corresponding Order Documentation, Open Drives grants to Customer for a term of three (3) years (or such longer period expressly agreed in the relevant Order Documentation by the parties, if applicable) (the “Initial Term”), a personal, non-exclusive, non- transferable, worldwide, limited, and revocable license, without the right to sublicense, to (a) install and use the Software for Customer’s internal business purposes only in connection with the Hardware, and (b) use the Documentation in support of Customer’s use of the Software (the “License”). The Software associated with Customer’s license is either bundled with a specific storage controller identified by a unique serial number (“Controller-based licenses”), or is independent of a storage controller (“Standalone licenses”).

4.2. License Restrictions. Customer will not, nor will Customer allow any third party to, (a) reverse engineer, decompile or disassemble the Software or otherwise reduce it to human-readable form; (b) remove or conceal any product identification, proprietary, intellectual property, or other notices in the Software and Documentation; (c) use the Software and Documentation to perform services for third parties in a service bureau, managed services, commercial hosting services, or similar environment; (d) assign or otherwise transfer, in whole or in part, the Software or Documentation licenses to another; (e) install Controller-based licenses on or use them with third party hardware or any second-hand or grey market Hardware that Customer has not purchased from Open Drives or an Open Drives partner; (f) modify, adapt, or create a derivative work of the Software or Documentation; and (g) publish or provide any Software benchmark or comparison test results.

4.3. Third Party Licenses. Customer represents and warrants that it has obtained and/or will obtain, all applicable third party licenses necessary to operate any third party software required in connection with the use of the Products and for Open Drives to freely and without interruption perform the Services hereunder.

4.4. Software Copyright Information and Notices. Software copyright information and other related details are included as part of notices in the Documentation or other documentation published by Open Drives.

4.5. Verification. Upon request by Open Drives, Customer will provide Open Drives with, or permit Open Drives to generate, a report generated by the Software indicating Customer’s compliance with the License Limitations for the period specified in the request. In the event of any use in excess of the License rights for which Customer has paid, Customer will promptly pay Open Drives the applicable fees for such excess use at Open Drives’ then prevailing rates. Upon receipt of such fees, Open Drives will extend the License to cover the excess.

5. SERVICES

5.1. Services. Services are provided by or on behalf of Open Drives. Additional terms and conditions applicable to Professional Services are set forth Exhibit A, attached hereto, and additional terms and conditions applicable to Support Services are set forth on Exhibit B, attached hereto.

6. DIRECT WARRANTY

6.1. Hardware Warranty. Open Drives warrants that the Hardware will materially conform to the Documentation for a period ending upon the later of (i) ninety (90) days from the date of delivery, unless otherwise specified in the applicable Documentation and (ii), if applicable, the date of termination of the support contract relating to such Hardware (“Hardware Warranty Period”). In the event of any material nonconformity in the Hardware during the Hardware Warranty Period that is reproducible and verifiable, Open Drives will, at its sole discretion and expense, repair or replace the Hardware, or refund the amounts received by Open Drives for the non-conforming Hardware. Replacement parts will be warranted for the remainder of the Hardware Warranty Period in effect for the original Hardware purchased, unless otherwise mandated by applicable law.

6.2. Software Warranty. Open Drives warrants that (a) the initially- shipped version of the Software installed upon Hardware or purchased from an Open Drives approved hardware or software provider will materially conform to the Documentation; and (b) the Software will be free from physical defects for a period of ninety (90) days from the date of delivery or such other minimum period required under applicable law (“Software Warranty Period”).  For the avoidance of doubt, this warranty shall be inapplicable to Software that is not purchased directly from Open Drives or an Open Drives approved hardware or software provider.  Open Drives does not warrant that Customer’s use of  the Software will be error-free or uninterrupted. In the event of any material nonconformity in the Software during the Software Warranty Period that is reproducible and verifiable, Open Drives will, at its sole discretion and expense, repair or replace the Software, or refund the amounts received by Open Drives for the non-conforming Software. This warranty does not cover software, other items, or any services provided by persons other than Open Drives.

6.3. Limitations. Open Drives will not be liable under any warranty described in these Terms, including this Section 6, for claims arising from Customer’s, Customer’s subcontractor’s, or any unauthorized third person’s misuse, neglect, improper installation or testing, attempts to repair, or any other cause beyond the range of the intended use. The Hardware warranty will become void if a Hardware component is installed as an add-on to or replacement for the original Hardware, without Open Drives’ prior written approval. The Software warranty will become void if the Software is modified or otherwise used in violation of the Software license terms set forth in Section 4, except as authorized in writing by Open Drives.  In addition to the foregoing, all warranties described in these Terms, including this Section 6, will be voided where:

(a)   Hardware has been mishandled, altered, damaged or rendered inoperable due to willful or negligent acts or omissions, accident, force majeure, or operation of the Hardware other than as specified in the Documentation, specific examples include, but are not limited to: shipping or transporting the Hardware, failing to keep the Hardware in a properly ventilated and cooled environment, storing the Hardware in an environment where the ground shakes or vibrates;

(b)   Any Hardware has been used in excess of its rated life as set forth in the Documentation and/or as determined by its original manufacturer;

(c)   Services have been performed by a person or entity other than Open Drives or an authorized Open Drives service representative in relation to the Hardware and Software, in the absence of a prior written agreement with Open Drives;

(d)   A power surge or failure has occurred;

(e)   Customer has failed to provide a suitable environment for the Hardware within industry standards;

(f)   An issue arises from cleaning, refinishing or cosmetic modification of Hardware, or any electrical or site preparation;

(g)   Products or components, including without limitation, software or hardware, have been procured from a source not authorized by Open Drives, and then combined with Products; and

(h)   reselling or transferring the Hardware and/or Software to any other person or other entity.

6.4. Exclusive Warranties. TO THE EXTENT PERMITTED BY APPLICABLE LAWS, THE FOREGOING WARRANTIES ARE CUSTOMER’S SOLE AND EXCLUSIVE WARRANTIES AND REMEDIES. OPEN DRIVES SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

7. INTELLECTUAL PROPERTY RIGHTS AND PROTECTION

7.1. General. The Software and Documentation is licensed, not sold, to Customer. It is protected by intellectual property laws and treaties worldwide, and contains trade secrets, in which Open Drives and its licensors reserve and retain all rights not expressly granted to Customer. No right, title or interest to any trademark, service mark, logo, or trade name of Open Drives or its licensors is granted to Customer.

7.2. IP Claims. Subject to the terms and conditions of this Section, Open Drives will defend or settle any claim brought by a third party against Customer that Hardware, Software, and Documentation sold and delivered by or for Open Drives to Customer under these Terms infringe any patent, trademark, or copyright (“IP Claim”). Open Drives will pay settlement amounts or, if applicable, damages and costs finally awarded by a court of competent jurisdiction (collectively, “Damages”) against Customer to the extent such Damages are specifically attributable to the IP Claim, provided  that  Customer:  (a)   promptly notifies Open Drives in writing of the IP Claim; (b) provides information and assistance to Open Drives to defend such IP Claim; and (c) provides  Open Drives with sole control of the defense or settlement negotiations.

7.3. Remedies. Open Drives may, at its option, substitute or modify the Product, or the relevant portion thereof, so that it becomes non- infringing; procure any necessary license; or replace the Product. If Open Drives determines that none of these alternatives is reasonably available, then Customer may return the Product and Open Drives will refund Customer’s purchase price.

7.4. Exclusions. Notwithstanding anything to the contrary in these Terms, Open Drives has no obligation or liability for any claim of infringement that arises from or relates to: (a) Open Drives’ compliance with or use of designs, specifications, inventions, instructions, or technical information furnished by or on behalf of Customer; (b) Product modifications made by or on behalf of Customer without Open Drives’ authorization; (c) Customer’s failure to upgrade or use a new version of the Product, to make a change or modification requested by Open Drives, or to cease using the Product if requested by Open Drives; (d) the Product, or any portion thereof, in combination with any other product or service; (e) Third Party Branded Products; (f) services offered by Customer or revenue earned by Customer for such services; or (g) any content or information stored on or used by Customer or a third party in connection with a Product.

7.5. Entire Liability. Notwithstanding anything to the contrary in these Terms, this Section 7 states Open Drives’ entire liability and Customer’s sole and exclusive remedies for IP Claims.

8. CONFIDENTIALITY

8.1. General. “Confidential Information” means any information disclosed by a Party to the other Party in connection with these Terms that (a) is marked “confidential” or “proprietary at the time of disclosure; (b) if disclosed orally or visually, is designated “confidential” or “proprietary” at the time of disclosure and summarized in a writing delivered to the receiving Party within thirty (30) days of disclosure; or (c) by its nature or the circumstances surrounding disclosure, should reasonably be considered confidential or proprietary. “Confidential Information” shall include any reproduction of such information, but  shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the receiving Party; (b) was in the receiving Party’s lawful possession prior to the disclosure and had not been obtained by the receiving Party either directly or indirectly from the disclosing Party; (c) is lawfully disclosed to the receiving Party by a third party without restriction on the disclosure; or (d) is independently developed by the receiving Party.

8.2. Treatment of Confidential Information. Confidential Information will remain the property of the disclosing Party. Each Party will have the right to use the other’s Confidential Information solely for the purpose of fulfilling its obligations under these Terms. Each Party agrees (a) to hold the other Party’s Confidential Information in confidence for a period of three (3) years from the date of disclosure; and (b) to disclose the other Party’s Confidential Information only to those employees or agents who have a need to know in furtherance of these Terms and who are required to protect such Confidential Information against unauthorized disclosure under terms no less restrictive than those set forth herein. The receiving Party will protect the Confidential Information from unauthorized use, access or disclosure in the same manner as it protects its own proprietary information of a similar nature, and in any event with at least a reasonable degree of care. The receiving Party may disclose the disclosing Party’s Confidential Information to the extent such disclosure is required pursuant to a judicial or administrative proceeding, provided that the receiving Party gives the disclosing Party prompt written notice thereof and the opportunity to seek a protective order or other legal remedies.

8.3. Return/Destruction. Upon the disclosing Party’s written request, all Confidential Information (including all copies thereof) of the disclosing Party will be returned or destroyed, unless the receiving Party is required to retain such information by law, and the receiving Party will provide written certification of compliance with this Section 8.3.

9. LIMITATION OF LIABILITY

9.1. Liability Exclusions. Regardless of the basis of claim (e.g., contract, tort, or statute), in no event will Open Drives or its suppliers or subcontractors be liable to Customer for special, incidental, indirect or consequential damages; downtime costs; loss or corruption of data; loss of revenues, profits, goodwill, or anticipated savings; procurement of substitute goods and/or services; interruption of business; Customer’s failure to comply with applicable “non-erasable” and “non-rewriteable” U.S. government regulations; and Customer’s failure to obtain any applicable third party licenses necessary to operate any third party software required in connection with the use of the Products and for Open Drives to freely and without interruption perform the Services. This exclusion is independent of any remedy set forth in these Terms.

9.2. Cumulative Liability. To the extent that limitation of liability is permitted by law, Open Drives’ liability to Customer is limited to US $1,000,000. This limitation is cumulative and not per incident.

9.3. Exceptions. The limitations set forth in Sections 9.1 and 9.2 will not apply to liability for death or personal injury caused by negligence, gross negligence, willful misconduct, fraud, any other liability which cannot be excluded under applicable laws, or to IP Claims under Section 7.

10. COMPLIANCE WITH LAWS

10.1. Compliance. Each Party will comply with all applicable laws and regulations.

10.2. Export. Customer acknowledges that Products and Services supplied by Open Drives under these Terms are subject to export controls under the laws and regulations of the United States, and other countries as applicable, and that Products and Services may include export controlled technologies, including without limitation encryption technology. Customer agrees to comply with such laws and  regulations and, in particular, represents and warrants that it: (a) will not, unless authorized by U.S. export licenses or other government authorizations, directly or indirectly export or re-export Products and Services to (or use Products and Services in) countries subject to U.S. embargoes or trade sanctions programs; (b) is not a party, nor will it export or re-export to a party, identified on any government export exclusion lists, including but not limited to the U.S. Denied Persons, Entity, and Specially Designated Nationals Lists; and (c) will not use Products and Services for any purposes prohibited by United States law. Customer will obtain all required authorizations, permits, or licenses to export, re-export or import, as required. Customer agrees to obligate, by contract or other similar assurances, the parties to whom it re-exports or otherwise transfers Products and Services to comply with all obligations set forth herein.

10.3. Anti-Bribery. Each Party will comply with all applicable country laws relating to anti-corruption or anti-bribery, including but not limited to the requirements of the U.S. Foreign Corrupt Practices Act, as amended.

11. MISCELLANEOUS

11.1. Termination. These Terms are effective until terminated. Customer may not terminate these Terms at any time. Open Drives may terminate these Terms immediately upon written notice to Customer if Customer commits a material breach of these Terms, including failure to remit payments when due (whether payable to Open Drives or its authorized third party financing partners in connection with an Approved Financing Agreement, described in Section 11.8 below) and, in the event that the breach is remediable, Customer fails to remedy it within thirty (30) days of Open Drives’ written notice requiring Customer to do so. Upon termination of these Terms, all rights to use the Software and Documentation cease and Customer will, at Open Drives’ request, promptly return or destroy all copies of the Software and Documentation in Customer’s possession or under Customer’s control. Sections 4.2. – 4.4., 6, 7, 8, 9, 10, and 11 will survive expiration or termination of these Terms.

11.2. Force Majeure. Neither Party will be liable to the other for any alleged loss or damages resulting from acts of God, acts of civil or military authority, governmental priorities, fire, floods, earthquakes, epidemics, quarantine, energy crises, strikes, labor trouble, terrorism, war, riots, accidents, shortages, delays in transportation, or any other causes beyond the reasonable control of a Party (collectively, “Force Majeure”). Force Majeure will not relieve the obligation of any payments due hereunder for delivered Products or Services actually performed. If the Force Majeure event continues for more than thirty (30) days, the Parties will negotiate in good faith the termination of the affected Order Documentation(s).

11.3. Data Privacy and Recovery. Customer is solely responsible for personal data managed or stored using Products and agrees to comply with all applicable data privacy laws. Customer will be solely responsible for management of its data back-up, data recovery, and disaster recovery measures. Customer assumes responsibility for undertaking the supervision, control and management of Hardware and Software including following industry-standard processes, procedures and requirements: (a) for the security of data, accuracy of input and output, and back-up plans, including restart and recovery in the event of a Force Majeure event or a Hardware or Software error or malfunction; and (b) for reconstruction of lost or altered files, data, and programs. Open Drives will not be responsible or held liable for Customer’s internal processes and procedures related to the protection, loss, confidentiality, or security of Customer’s data or information.

11.4. Modification, Substitution, Discontinued Product. Open Drives will have sole discretion, at any time, to change, substitute, or discontinue Products. Open Drives will use commercially reasonable efforts to provide sixty (60) calendar days’ prior notice of any such changes.

11.5. Waiver. Any waiver or failure to enforce any provision of these Terms on any occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Either Party’s exercise of any right or remedy provided in these Terms will be without prejudice to its right to exercise any other right or remedy.

11.6. Severability. In the event any provision of these Terms is held by a court of competent jurisdiction to be unenforceable for any reason, such provision will be changed and interpreted to  accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions hereof will be unaffected and remain in full force and effect.

11.7. Assignment. Customer may not assign any rights or delegate any obligations under these Terms without the prior written consent of Open Drives. Any purported assignment by Customer without Open Drives’ prior written consent will be null and void.

11.8. Subcontractors. Open Drives may use subcontractors to fulfill its obligations under these Terms.

11.9. Independent Contractors. The relationship of the Parties under these Terms is that of independent contractors. Nothing set forth in these Terms will be construed to create the relationship of principal and agent, franchisor/franchisee, joint venture, or employer and employee between the Parties. Neither Party will act or represent itself, directly or by implication, as an agent of the other Party.

11.10. Publicity. No advertising, publicity releases, or similar public communications concerning these Terms, the Products, or the Services will be published or caused to be published by either Party without the prior written consent of the other Party. Notwithstanding the foregoing, Customer agrees to be mentioned in the list of buyers of Open Drives Products and/or Services and that its logo and trademark may be used for this purpose only.

11.11. Audit. Customer grants Open Drives and its independent accountants the right to audit Customer or Customer’s subcontractors once annually during regular business hours upon reasonable notice to verify compliance with these Terms. If the audit discloses Software over-usage or any other material noncompliance, Customer will promptly pay to Open Drives any additional fees, notified to Customer, and the reasonable costs of conducting such audit.

11.12. General. These Terms will be construed pursuant to the laws of the State of California, United States, excluding its conflicts of law provisions, and each of the parties consents to the exclusive jurisdiction of the courts located in Los Angeles County, California. The Parties agree to disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods. Open Drives reserves the right to control all aspects of any lawsuit or claim that arises from Customer’s use of the Products. If required by Open Drives’ agreement with a third party licensor, Open Drives’ licensor will be a direct and intended beneficiary of these Terms and may enforce them directly against Customer. These Terms may not be changed except by an amendment accepted by an authorized representative of each Party. These Terms represent the entire agreement and understanding between Open Drives and Customer with respect to the Products. They supersede any previous communications, representations or agreements between Open Drives and Customer and prevail over any conflicting or additional terms in any quote, Purchase Order, acknowledgement, or similar communications between the Parties. Order Documentation(s) issued by Customer will be deemed to incorporate and be subject to these Terms, except where the Parties expressly agree in writing to variations thereto. The pre-printed terms or general terms and conditions on any Purchase Order, Order Documentation form, contractual document or other similar correspondence originating by either Party will have no effect.

11.13. Use Restriction. Products and Services are for Customer’s use and are not for resale or redistribution.

Exhibit A

Professional Service Terms

These Professional Services Terms (“Terms”) set forth the terms and conditions under which Open Drives will provide Professional Services to Customer. For Customers purchasing Professional Services directly from Open Drives, or through an authorized distributor or reseller, the Open Drives General Terms also apply. To the extent there is any conflict between these Terms and those contained in the Open Drives General Terms, these Terms will control and take precedence. These Terms shall not apply if Customer has a separate applicable agreement with Open Drives for the provision of Professional Services.

1.  DEFINITIONS. In addition to the definitions set forth in the General Terms, the following definitions shall apply:

1.1. Deliverables. Tangible materials expressly designated as Deliverables in the relevant Engagement Document.

1.2. Engagement Document. An Open Drives-approved document, including but not limited to a statement of work, service brief or service description that defines the tasks, schedule of performance and/or Deliverables to be provided by Open Drives.

1.3. IP Rights. Patents of any type, design rights, utility models or other similar invention rights, copyrights, mask work rights, trade secret, know-how or confidentiality rights, trademarks, trade names and service marks and any other intangible property rights, including applications and registrations for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired.

1.4. Pre-Existing IP. IP Rights, existing, owned, or otherwise licensed by Customer or Open Drives prior to entering into these Terms.

1.5. Professional Services. The consulting services, typically related to installation or implementation, to be provided by or on the behalf of Open Drives as specified in an Engagement Document.

1.6. Professional Services Materials. Deliverables, materials, software, know-how, and/or information used, generated, created, developed or reduced to practice, including any modifications thereof or thereto, by or for Open Drives during the provision of the Professional Services.

1.7. Professional Services Resource. An Open Drives employee, supplier or subcontractor which Open Drives utilizes to provide Professional Services to Customer.

2. SCOPE OF SERVICES

2.1. Projects. Open Drives will perform Professional Services in accordance with the Order Documentation, including the Engagement Document, and these Terms. Open Drives may at its sole discretion require an Engagement Document to be executed prior to commencement of the Professional Services.

2.2. Change Orders. Changes to the Professional Services specified in a statement of work will not be effective unless a change request form has been executed by authorized representatives of both Parties and Open Drives has received the applicable Order Documentation supporting the change.

2.3. No Unique Services. Professional Services are of a scalable, repeatable nature and, as such, the same or similar Professional Services have been and will continue to be provided to other Open Drives customers. Any unique services requested by Customer shall be subject to separate written agreement, no custom development activity shall be performed as Professional Services.

2.4. No Superuser Access. In no event will Customer grant to a Professional Services Resource root or “superuser” access at a server, workstation, or network level and Open Drives will have no responsibility or liability for loss or damage that results from or is related thereto.

3. FEES. An Engagement Document or the associated price quotation will state the fees to be paid by Customer to Open Drives for Professional Services rendered and any related payment schedules. Customer’s execution of an Engagement Document or Open Drives’ acceptance of a Purchase Order, as applicable, will indicate acceptance of the stated fees and payment schedules. No changes in fees or payment schedules will be effective absent a mutually executed change order.

4. EXPENSES. In addition to the foregoing, if specified in an Engagement Document, Customer will pay Open Drives its actual out-of-pocket expenses, including travel, as reasonably incurred by Open Drives during the performance of the Professional Services.

5. DURATION AND EXPIRATION OF PROFESSIONAL SERVICES BASED ON TIME AND MATERIAL ENGAGEMENT. In relation to Time and Material (“T&M”) Professional Services, Open Drives will provide to Customer a Professional Services Resource qualified at the skill level purchased by Customer, to perform T&M Professional Services, at an agreed Customer site or remotely, for the total amount of hours and/or days set forth in Open Drives’ price quotation and Customer’s Purchase Order. T&M Professional Services purchased on an hourly basis will be performed in minimum increments of four (4) consecutive hours. For T&M Professional Services purchased on a daily basis, a “day” constitutes at least four (4) hours but not more than eight (8) hours in a single calendar day; or whenever aggregate overtime hours (those exceeding eight (8) hours on a calendar day), exceed four (4) hours but not more than eight (8) hours. T&M Professional Services will be available to Customer for one (1) year from the Purchase Order date. Customer payments are nonrefundable, and credit for any unused T&M Professional Services will not be available.

6. PROFESSIONAL SERVICES WARRANTY. Open Drives warrants to Customer that the Professional Services will be performed in a professional, workmanlike manner consistent with generally accepted industry practices. If the Professional Services materially fail to conform to this Professional Services warranty, Open Drives will re-perform such Professional Services. This is Customer’s sole and exclusive remedy in relation to breach of warranty.

7. INTELLECTUAL PROPERTY RIGHTS. Each Party will retain all right, title and interest in and to its Pre-Existing IP. Open Drives will retain all right, title, and interest in and to the Professional Services, Professional Services Materials, and IP Rights embodied therein. In no event will Professional Services Materials be deemed to include Customer Pre- Existing IP or Customer Confidential Information. Customer hereby grants Open Drives a non-exclusive, worldwide, royalty-free, fully paid-up license to use such Pre-Existing IP and Confidential Information for the sole purpose of performing or producing the Professional Services and Professional Services Materials. Upon receipt of full payment, Open Drives hereby grants to Customer a limited, non-exclusive, non-transferable, terminable license, with no right to sublicense, to use the Professional Services Materials for Customer’s internal business purposes. Customer will not re-distribute the Professional Services Materials to any third parties without Open Drives’ prior written consent.

8. DATA PROTECTION. Performance of Professional Services under these Terms may result in Customer providing Open Drives access to personal data. Open Drives does not need nor request access to personal data in order to provide Professional Services. In the event Customer does provide personal data to Open Drives, Open Drives will protect all personal data in accordance with its responsibility as a data processor. Customer accepts sole responsibility and liability for the disclosure and protection of such data to Open Drives in accordance with applicable data protection laws.

9. TERMINATION; REMEDIES FOR NON-PAYMENT. Customer may terminate an Engagement Document for convenience upon thirty (30) days prior written notice. Such termination will not relieve Customer from its obligations to pay Open Drives any sums accrued prior to such termination, including all expenses and time and material costs incurred or expended by Open Drives, which will be immediately due upon termination. Customer may request that Open Drives complete the Professional Services in progress after notice of termination. Open Drives may, in its sole discretion, elect to perform, and, upon completion, will be entitled to full compensation for the completion of such Professional Services. If Customer fails to make payment in accordance with the payment terms, then, in addition to any other available remedies, Open Drives will have the right to decline to render further Professional Services to Customer. Open Drives may terminate an Engagement Document immediately on written notice to Customer if Customer commits a material breach of these Professional Services Terms.

Exhibit B

Support Service Terms

These Support Services Terms (“Terms”) set forth the terms and conditions under which Open Drives will provide Support Services to Customer. For Customers purchasing Support Services directly from Open Drives, or through an authorized distributor or reseller, the Open Drives General Terms also apply. To the extent that there is any conflict between these Terms and those contained in the Open Drives General Terms, these Terms will control and take precedence. These.  Terms shall not apply if Customer has a separate applicable agreement with Open Drives for the provision of SupportServices.

1. DEFINITIONS. In addition to the definitions set forth in the General Terms, the following definitions shall apply:

1.1. Business Day. Monday through Friday, 9:00 a.m. to 5:00 p.m. Pacific Standard Time. Designated national holidays are not considered Business Days.

1.2. Customer Replaceable Unit (CRU). Any FRU which can be replaced by Customer following guidelines and documentation provided by Open Drives.

1.3. Field Replaceable Unit (FRU). A component or disk in the Hardware, which can be replaced at a Customer location without pre-configuration by Open Drives. FRUs will be new or equivalent to new, at Open Drives’ reasonable discretion.

1.4. Remote Technical Support. Telephone and web-based support.

1.5. Software Updates. (i) Enhancements made generally available at no charge by Open Drives to existing Software versions; (ii) Software releases made generally available by Open Drives to resolve known issues with existing versions of Software; and (iii) Temporary software modifications developed for individual, known Software issues as part of the applicable Support Services.

1.6. Support Services. Open Drives’ generally available technical support and maintenance services for Hardware and Software, as set forth in Exhibit D attached hereto.

1.7. Support Services Period. The period of time specified in the Order Documentation during which Open Drives will provide Support Services.

1.8. TRO. The Target Response Objective for timing of delivery of Support Services, as set forth in Exhibit D attached hereto.

2. SUPPORT SERVICES

2.1. Scope of Support Services. Open Drives agrees to provide the Support Services purchased by Customer as set forth in the Order Documentation during the Support Services Period. On a case by case basis, and as explicitly set forth in the Order Documentation. Open Drives reserves the right to revise or update the scope of Support Services at its sole discretion.

2.2. Combined Use. Customer must purchase the same level of service entitlement for all components and controllers in a system. Customer will notify Open Drives prior to any combined use of Hardware and Software initially purchased for use in separate systems, and will upgrade to the highest level of Support Services entitlement existing in the newly combined system. Customer also will pay any additional Support Services fees required by Open Drives.

2.3. Out-of-Scope Services. Customer will pay for any Out-of-Scope Services on a time and materials basis. The following services are not included in the scope of Support Services:

(a)   Services related to third party products;

(b)   Transit or relocation of Hardware and related services, including services to remediate any associated damage;

(c)   Provision of accessories, batteries, supplies or replacement of disposable parts, including without limitation power cords, rack mounting kits and cables;

(d)   Customer education, training and consulting services;

(e)   Implementation or installation assistance for hardware and software;

(f)   Services related to any work performed at Customer’s site except as specified in the Order Documentation;

(g)   Services relating to issues arising from Customer or third-party modifications, customizations, or enhancements to Software;

(h)   Services relating to issues arising from Customer or third party error, use of software other than Software, or modification of Software; and

(i)   Any services not directly related to the functionality of the Hardware and Software, such as general Information Technology (IT) services, services related to “network switches,” or any services related to any general computing or systems matters.

For the avoidance of doubt, Open Drives’ support and other obligations under these Terms are conditioned upon Customer utilizing any hardware, equipment, systems and/or software that Open Drives’ specifies in the applicable Order Documentation (the “Specifications”). For the avoidance of doubt, Open Drives will not be responsible for providing support for any errors, performance issues, downtime or other degradation of service or access that relates to Customer’s failure to follow the Specifications or utilizing hardware or other equipment that deviates from the Specifications (“Non-Conforming Customer Supplied Equipment”), and Customer hereby agrees that Open Drives shall not be responsible or liable in any way for any harm suffered by Customer as a result of Customer’s utilizing Non-Conforming Customer Supplied Equipment.

2.4. Hardware and Software Warranty Disclaimers. All Open Drives warranties related to Hardware and Software will be voided where:

(a)   Hardware has been mishandled, altered, damaged or rendered inoperable due to willful or negligent acts or omissions, accident, force majeure, or operation of the Hardware other than as specified in the Documentation, specific examples include, but are not limited to: shipping or transporting the Hardware, failing to keep the Hardware in a properly ventilated and cooled environment, storing the Hardware in an environment where the ground shakes or vibrates;

(b)   Hardware has been used in excess of its rated life as set forth in the Documentation and/or as determined by its original manufacturer;

(c)   Services have been performed by a person or entity other than Open Drives or an authorized Open Drives service representative in relation to the Hardware and Software, in the absence of a prior written agreement with Open Drives;

(d)   A power surge or failure has occurred;

(e)   Customer has failed to provide a suitable environment for the Hardware within industry standards;

(f)   An issue arises from cleaning, refinishing or cosmetic modification of Hardware, or any electrical or site preparation;

(g)   Products or components, including without limitation, software or hardware, have been procured from a source not authorized by Open Drives, and then combined with Products; and

(h)   reselling or transferring the Hardware and/or Software to any other person or entity.

2.5. Support Services Warranty. Open Drives warrants that for the duration of the applicable Support Services Period, Support Services will be performed in a professional and workmanlike manner consistent with generally accepted industry practices. Customer’s sole and exclusive remedy in relation to a breach of this warranty is a re- performance of the Support Services by Open Drives.

2.6. Subcontracting. Open Drives may use subcontractors to provide the Support Services under these Terms.

2.7. Next Business Day Schedule. The cutoff time for next Business Day delivery of FRUs or CRUs and/or arrival of an Open Drives Authorized Service Engineer is 3:00 p.m. Pacific Standard Time. Remote diagnosis completion and/or CRU/FRU ordering that occurs after 3:00p.m. Pacific Standard Time, will be deemed completed on the following Business Day and shipment and/or arrival will be scheduled accordingly.

3. CUSTOMER RESPONSIBILITIES

3.1. Customer Contacts. Customer will designate up to three (3) technically qualified employees to serve as Customer’s primary points of contact in relation to the receipt of the Support Services.

3.2. Miscellaneous Permissions. In the event that Open Drives requires access to any computer systems or software owned or licensed by Customer in order to provide the Support Services, Customer will obtain all associated permissions.

3.3. Work Environment. Customer will provide Open Drives or the Open Drives ASE with a safe working environment and make all necessary arrangements as Open Drives may determine is reasonably necessary to perform the Support Services.

3.4 Data Protection. Performance of Support Services under these Terms may result in Customer providing Open Drives access to personal data. Open Drives does not need nor request access to personal data in order to provide Support Services. In the event Customer does provide personal data to Open Drives, Open Drives will protect all personal data in accordance with its responsibility as a data processor. Customer accepts sole responsibility and liability for the disclosure and protection of such data to Open Drives in accordance with applicable data protection laws.

Exhibit C

EXTENDED SOFTWARE LICENSE SUBSCRIPTION TERMS

These Extended Software License Subscription Terms (“Terms”) set forth the terms and conditions under which Open Drives agrees to extend the license to use Software purchased by Customer following the expiration of the Initial Term described in Section 4.1 of the General Terms (the “License Extension”). For Customers purchasing Software directly from Open Drives, or through an authorized distributor or reseller, the Open Drives General Terms also apply. To the extent that there is any conflict between these Terms and those contained in the Open Drives General Terms, these Terms will control and take precedence.

1. DEFINITIONS. In addition to the definitions set forth in the General Terms, the following definitions shall apply:

1.1. Extension Term. A one-year period beginning on the date the License renews pursuant to Section 5.1, subject to renewal in accordance with Section 5.1.

1.2. User. Any individual who is an employee or contractor of Customer and who is authorized by Customer to use the Software pursuant to the applicable Purchase Order, these Terms and the General Terms.

2. SOFTWARE LICENSE

2.1. Copying, Installation and Operation. Subject to these Terms and any limitations or restrictions set forth in the corresponding Purchase Order, Open Drives hereby grants Customer the following personal, worldwide, non-exclusive, non-transferrable license, without right to sub-license, during any Extension Term and subject to the Scope Limitations and the provisions of these Terms and the General Terms and any limitations or restrictions set forth in the corresponding Purchase Order or Extension Term Invoice to: (a) install and use the Software for Customer’s internal business purposes only in connection with the Hardware, and (b) use the Documentation in support of Customer’s use of the Software.

2.2. Reservations. All rights to the Software, Documentation and all related and other Intellectual Property Rights of Open Drives not expressly granted to Customer are reserved to Open Drives. Customer may not make the Software or Documentation available to any third parties as part of any rental, leasing, time-sharing, ASP, SaaS, or service bureau arrangement. Except to the extent otherwise specified in the relevant Purchase Order, Customer may use the Software and Documentation only for its internal business purposes.  Customer may in addition reproduce the Software, but solely to the extent necessary for bona fide non-production testing purposes. All Software provided under these Terms is licensed, not sold.

2.3. Updates. During the Extension Term, Open Drives reserves the right to update Customer’s Software so that it remains current with the then current version of Software available to Open Drives customers generally at no cost.

2.4. New Features. Over the course of the Extension Term Open Drives may introduce new features, functionality, software, or user types, that are only available under a different pricing model or on a version of Software other than the version Customer currently accesses (“New Features”).  In the event Customer desires to purchase New Features Open Drives reserves the right, in its sole discretion, to update Customer’s account, pricing model, or Software version to facilitate the provision of such New Features.

3. FEES

3.1. Payment of Fees. Customer will pay Open Drives the fees for the License to the Software by check, EFT, or as specified or required in the applicable Extension Term Invoice.  Unless specified otherwise in the applicable Extension Term Invoice, Customer will make all payments in US dollars within thirty (30) days of receipt of any Extension Term Invoice.

3.2. Taxes. Customer will be responsible for any applicable sales, use, or any value added or similar taxes (“Taxes”) payable with respect to the licensing of the Software to Customer. Unless expressly specified otherwise in the applicable Extension Term Invoice or Purchase Order, all fees, rates and estimates exclude Taxes. If Customer has tax-exempt status, Customer will provide written evidence of such status.

4. CUSTOMER RESPONSIBILITIES

4.1. Unauthorized Use. Customer will promptly notify Open Drives of any unauthorized use of any Software of which Customer becomes aware. In the event of any unauthorized use by any User, Customer will use all commercially reasonable efforts to immediately terminate and prevent further occurrences of such unauthorized use.

5. LICENSE EXTENSIONS, TERMINATION

5.1. License Extensions. Open Drives shall use commercially reasonable efforts to provide six-months prior written notice to Customer prior to the expiration of the Initial Term or any Extension Term.  Unless Customer provides thirty (30) days written notice prior to the expiration of the Initial Term or any Extension Term, upon the expiration of the Initial Term or such Extension Term the License shall renew for an Extension Term at Open Drives’ then prevailing commercial rates.  Following the commencement of any Extension Term, Open Drives shall provide customer with an invoice setting forth the applicable rates for such Extension Term and Customer shall have 30 days to pay such invoice (the “Extension Term Invoice”).  If Customer fails to timely pay any Extension Term Invoice in full, Open Drives reserves the right to cancel or suspend the License and the Extension Term at Open Drives’ sole discretion.

5.2. Termination for Cause. If either party materially breaches any of its obligations under these Terms and fails to cure such breach within thirty (30) days from the date it receives from the non-breaching party a notice of the breach and a demand for cure, then the non- breaching party may terminate all or any affected Purchase Orders, Extension Term Invoices, Licenses or related services immediately on notice. Without limiting the foregoing, Customer’s failure to pay past due fees within 15 days of receipt of a written notice of late payment will constitute a material breach of the applicable Purchase Order, Extension Term Invoice, these Terms and the License. If Customer has not cured a material breach within the applicable cure period then, until Customer has cured the breach in full, Open Drives may, in its sole discretion, and without prejudice to its other rights following material breach and failure to cure, (i) suspend performance of some or all of Open Drive’s obligations under the applicable Purchase Order or Extension Term Invoice including obligations to provide professional or support services; and (ii) suspend the Licenses granted pursuant to the applicable Purchase Order or Extension Term Invoice. Notice of termination for any License Purchase Order or Extension Term Invoice shall not be interpreted to be notice of termination for any other License Purchase Order or Extension Term Invoice.

5.3. Obligations on Termination. Upon any termination or expiration of a License, Customer will destroy all copies of the Software and the Documentation within its custody or control within thirty (30) days of such termination, and immediately provide Open Drives with a written statement signed by an authorized representative of Customer certifying that all copies of the Software have been destroyed and all use of the Software has been discontinued; and (ii) each Party will return or destroy all copies of any Confidential Information of the other.

5.4. Effects of Termination or Expiration of License. No expiration or termination of a License or of any License Purchase Order will relieve Customer of its obligation to pay any amounts accruing under such License Purchase Order prior to such expiration or termination.  Following the termination or expiration of the License, Customer acknowledges and agrees that Open Drives may, at its sole discretion, suspend all or part of the functionality of the Software; provided that Customer’s right to access and download their data shall survive the expiration or termination of the License.  Customer hereby acknowledges and agrees that the termination or expiration of the License will terminate all obligations (if any) of Open Drives to provide support or otherwise ensure the continued functionality of the Software for Customer, and Customer hereby agrees to indemnify and hold harmless Open Drives against any harm suffered by Customer or its affiliate(s), and each of their respective successors and permitted assigns, directors, officers, employees, representatives resulting from or related to the termination or expiration of Customer’s License to use the Software.

Exhibit D

Support Services Description

SUPPORT SERVICES

Open Drives Support Services delivers hardware and software support made by Open Drives for customers, including technical support, onsite response, remote monitoring and resolution, and installation of non-customer replaceable units.

The Open Drives Support Services include;

• Access to online support tools—Gain fast access to information on Open Drives products and services:
  • Initiate support requests via multiple channels, including: online chat, web, telephone, or email
  • Connect with Open Drives users and experts through Support Community Forums
  • Search Open Drives’ technical and support knowledge repository to quickly access critical information
  • Register software, obtain license keys, and download product enhancements, patches, and upgrades
  • Access the Open Drives Lab interoperability and product lifecycle information
• Remote monitoring – Sophisticated remote support technology securely monitors your Open Drives systems and notifies Open Drives of potential issues before business is impacted.
• Replacement parts delivery – Parts will be shipped to the Customers are responsible for installation of parts deemed to be customer replaceable units (CRU’s).
• Onsite response with replacement parts installation – Onsite dispatch and installation for parts deemed non-customer

TIME AND MATERIALS

• For Open Drives products that are out of support or for problems not covered under the prepaid support services, Open Drives provides support on a Time & Materials basis at the then prevailing Time & Materials rates and fees.
• Support does not include custom software development or feature requests or travel expenses.
• The warranty periods and support options apply (i) only between Open Drives and those organizations that procure the applicable products and/or maintenance under a contract directly with Open Drives (the “Open Drives Customer”); and (ii) only to those products or support options ordered by the Open Drives Customer at the time that the Open Drives Support Information is current. Open Drives may change the Open Drives Support Information at any time. The Open Drives Customer will be notified of any change in the Open Drives Support Information in the manner stated in the then current product offering and/or maintenance related agreement between Open Drives and the Open Drives Customer, but any such change shall not apply to products or support options ordered by the Open Drives Customer prior to the date of such change.

Severity Levels:

• Severity Level 1 – High: a severe problem preventing customer or workgroup from performing critical business functions.
• Severity Level 2 – Medium: the customer or workgroup are able to perform job functions, but the performance of job functions is degraded or severely limited.
• Severity Level 3 – Low: the customer’s or workgroup’s performance of job function is largely unaffected.

 

Service Feature	Description	Standard Support – Coverage Details
Technical Support	Customer may contact Open Drives by telephone, e-mail or web interface to report an Equipment or Software problem and provide input for an initial assessment of Severity Level.   Open Drives provides (i) a technical response by remote means based on the Severity Level of the problem; or, (ii) when deemed necessary by Open Drives, Onsite Response as described below.	Included.   Technical Support and initial technical response are available during standard business hours.   Initial technical response objective is based upon Severity Level, within the following time period after receipt of Customer contact:   Severity Level 1: 4 business hours   Severity Level 2: 8 business hours   Severity Level 3: 12 business hours
Onsite Response	Open Drives sends authorized personnel to installation site to work on the problem after Open Drives has isolated the problem and deemed Onsite Response necessary.   * NOTE: Onsite response may not be available in all geographic regions.	Included.   Initial Onsite Response objective is based on Severity Level, within the following time period after Open Drives deems Onsite Support is necessary:   Severity Level 1: 8 business hours   Severity Level 2: 1 business day   Severity Level 3: 2 business days
Replacement Parts Delivery	Open Drives provides replacement parts when deemed necessary by Open Drives.	Included.   Replacement part delivery objective is based upon Severity Level, within the following time period after Open Drives deems a replacement part is necessary:   Severity Level 1: 1 business day   Severity Level 2: 2 business days   Severity Level 3: 3-5 business days   Local country shipment cut-off times may impact the same day/next local business day delivery of replacement parts and the related Onsite Response.   If Open Drives installs a Customer Replaceable Unit (CRU), Open Drives will arrange for its return to an Open Drives facility. If Customer installs the CRU, Customer is responsible for returning the replaced CRU to a facility designated by Open Drives.

 

Installation of Software Releases	Open Drives will perform the installation of new Software Releases.	Included for Software which Open Drives determines is Equipment operating environment Software.   Customer will perform the installation of new Software Releases of Software (that is, Software not classified as Equipment operating environment Software), unless otherwise deemed necessary by Open Drives.
Remote Monitoring and Repair	Certain Open Drives products will automatically and independently contact Open Drives to provide input to assist Open Drives in problem determination.   Open Drives will remotely access products if necessary for additional diagnostics and to provide remote technical support.	Included for products which have remote monitoring tools and technology available from Open Drives.   Once Open Drives is notified of a problem, the same response objectives for Technical Support and Onsite Response will apply as previously described.
Access to Online Support Tools	Customers who have properly registered have access to Open Drives’ web-based knowledge and self-help customer support tools via the Open Drives Online Support site	Included.

 

EXHIBIT E

Reseller Return Merchandise Authorization Terms and Procedures

These terms set forth the terms and procedures for resellers of Open Drives Hardware Products to address any defective or otherwise malfunctioning Hardware Products.

I. RMA Authorization

In the event that a reseller (or a Customer who purchases a Hardware Product through reseller) desires to return a Hardware Product, reseller shall submit a completed RMA Authorization Request in substantially the form provided below.  Open Drives will respond to any request for RMA Authorization within two (2) business days of receipt of such request.

The RMA Authorization form is also available at: https://app.smartsheet.com/b/form/51516e987a8a45bca4916f8dc89c09a3

II. Return Procedure

Following submission of the RMA Authorization Request, Hardware Products under applicable Open Drives warranty may be returned by Reseller to Open Drives freight prepaid. If the problem with the Hardware Product is determined by Open Drives in its reasonable discretion to be covered under warranty or by an active support plan, the Hardware Product will either be repaired or the applicable Spare Hardware Product or Hardware Product will be replaced, in each case at Open Drives’ sole discretion and expense. If repaired, the Hardware Product will be returned freight prepaid to the Customer or Reseller as applicable.  If replaced, either a replacement Spare Hardware Product or a replacement Hardware Product (as applicable) will be shipped freight prepaid at Open Drives’ expense to Reseller.  If Open Drives determines that the returned Hardware Product is not under warranty or is not covered by an active support plan, Reseller or Customer (as applicable) shall bear the cost of providing any replacement and/or of backfilling any Spare Hardware Product deployed in replacement.