BLOOMBASE
TECHNICAL SUPPORT TERMS AND CONDITIONS
These Technical Support Terms and Conditions ("Terms") set forth the terms and conditions under which Bloombase, Inc. ("Bloombase") will provide technical support services for Bloombase's enterprise information security products to customers that have purchased such technical support services (each, a "Customer").
1. Definitions
a. "Bloombase SupPortal" means the Bloombase online technical support portal, located at https://supportal.bloombase.com.
b. "Error" means a material failure of the Software to operate or function substantially in accordance with the applicable documentation.
c. "Software" means the Bloombase enterprise information security product(s) purchased by Customer and for which Customer has purchased Support Services.
d. "Support Services" mean the technical support services purchased by Customer for the Software in the form of Software Support Services, Basic Support Services, Standard Support Services, or Premium Services, as applicable.
e. "Technical Support Contacts" means individuals designated by Customer and trained in the Software, who will serve as Customer's primary points of contact for the reporting of Errors to Bloombase and the receipt of Support Services.
2. Scope of Support Services
a. Scope of Support Services
Bloombase will use commercially reasonable efforts to provide the Support Services described in these Terms to Customers that have purchased Support Services from Bloombase. Bloombase offers Customers the option to purchase the following Support Services, which are described below: Software Support Services, Basic Support Services, Standard Support Services, or Premium Support Services. Support Services are available 24x7.
b. Out-of-Scope Services
The following services are not included within the scope of Support Services:
i. Correction of Errors if such Errors relate to the use of the Software outside its recommended or reasonably anticipated use, configuration, or system or otherwise in a manner that is not in accordance with Bloombase's documentation;
ii. Correction of Errors if such Errors relate to modifications, alterations, revisions, variations, translations, customizations, or enhancements to the Software by Customer or a third party that are not expressly authorized by Bloombase;
iii. Correction of Errors if such Errors relate to the use of the Software by a person not employed by Customer or by a Customer employee that has not been properly instructed by Customer;
iv. Correction of Errors if such Errors relate to the use of the Software with software or equipment not provided or licensed by Bloombase to Customer;
v. Correction of Errors if such Errors relate to Customer's use of other than the most current version of the Software or any Error corrections or Updates (as defined in Section 3 below) thereto provided by Bloombase;
vi. Correction of Errors if such Errors relate to or arise from the negligence, misuse, or abuse of the Software by Bloombase or a third party authorized by Bloombase; and
vii. Correction of Errors if such Errors relate to work performed on the Software except by Bloombase or a third party authorized by Bloombase.
3. Severity Levels
Except as otherwise expressly set forth in these Terms, Bloombase will use commercially reasonable efforts to acknowledge and address, as described below, reported and reproducible Errors. Bloombase recognizes four severity levels of Software Errors. Bloombase will respond to support cases in accordance with their severity levels and within the timeframes specified below. Customers may request escalation of their support cases to different severity levels on the Bloombase SupPortal.
i. Severity Level 1 - Critical
The Software suffers an Error that: (x) causes the production server or other mission critical systems to go down without an immediately available workaround; (y) causes significant risk of loss or corruption of all or a substantial portion of Customer's mission critical data; and (z) causes a substantial loss of service to Customer and severe disruption to Customer's business operations. Customer must have dedicated resources available to work on Severity 1 cases on an ongoing basis during normal business hours. The following are examples of support cases that would be categorized as Severity 1 cases: Customers and applications are unable to access disks and files; Customer is unable to access web console and text console; Software failed to start.
ii. Severity Level 2 - Major
The Software suffers an Error that: (x) severely impairs a major functionality of the Software; (y) allows operation of the Software in a restricted fashion, although long-term productivity might be adversely affected; and (z) risks a major milestone and affects ongoing and incremental installations. Severity 2 cases are cases in which Bloombase generally can provide a temporary workaround. The following are examples of questions that would be categorized as Severity 2 cases: Customers and applications experience a slow response on accessing disks; Customer is unable to commit changes of an existing configuration; Customer is unable to backup configurations to a network share; slave nodes are unable to receive changes.
iii. Severity Level 3 - Minor
The Software suffers an Error that (x) causes a partial, non-critical loss of functionality of the Software; (y) impairs the operation of some components of the Software, but allows the Customer to continue using the Software; and (z) leaves initial installation milestones at minimal risk. The following are examples of questions that would be categorized as Severity 3 cases: A Customer is unable to access encrypted files; an administrator/operator is unable to log into web console; Customer is unable to locate error message/code in logs.
iv. Severity Level 4 - Cosmetic
Customer has general usage questions or has newly opened a support case. The following are examples of questions that would be categorized as Severity 4 cases: How do I change my web console password? How do I configure backup to a remote storage location? How do I access text console in vSphere client?
4. Technical Support Services Response Targets
Upon Customer's opening of a support case, Bloombase will reasonably assess its urgency in accordance with the severity levels set forth above and assign a ticket number to each support case. Bloombase will use commercially reasonable efforts to respond to support cases within the timeframes specified below.
Cosmetic Minor Major Critical
(Severity 4) (Severity 3) (Severity 2) (Severity 1)
Basic Support Services 24 hours 18 hours 12 hours 8 hours
Premium Support Services 12 hours 8 hours 4 hours 2 hours
5. Basic Support Services
Bloombase will use commercially reasonable efforts to provide to Customers that have purchased Basic Support Services the following:
a. Software Subscription
Bloombase will deliver to Customer, as made generally commercially available without cost by Bloombase to Customers, bug fixes, Software updates, and patches for all minor releases and major releases for the Software not classified as end-of-life (collectively, "Updates"), which will thereafter be considered "Software" for the purposes of these Terms. At its expense and as deemed appropriate by Bloombase, in its sole discretion, with each Update Bloombase will furnish Customer revised documentation for the Software, including release notes identifying each change.
b. Web Support
Customers that purchase Basic Support Services have access through the Bloombase SupPortal to Bloombase's searchable library of troubleshooting advice, current Software information, Bloombase's Knowledgebase (which contains downloadable user manuals, tutorials, and best practices), downloads of Bloombase products, add-ons, and patches, the ability to interact with the Bloombase user community, and the ability to obtain immediate online help. Bloombase will use commercially reasonable efforts to ensure the availability of the Bloombase SupPortal 10x5.
c. Email Support
Bloombase will provide Customer with access to email support at https://supportal.bloombase.com to resolve questions about the implementation, configuration, use and operation of the Software. Email support is available 10x5. Bloombase will respond to support inquiries made by email in accordance with their severity level and within the timeframes specified above.
6. Premium Support Services
Bloombase will use commercially reasonable efforts to provide to Customers that have purchased Premium Support Services the following:
a. Software Subscription
Bloombase will deliver to Customer, as made generally commercially available without cost by Bloombase to Customers, bug fixes, Software updates, and patches for all minor releases and major releases for the Software not classified as end-of-life (collectively, "Updates"), which will thereafter be considered "Software" for the purposes of these Terms. At its expense and as deemed appropriate by Bloombase, in its sole discretion, with each Update Bloombase will furnish Customer revised documentation for the Software, including release notes identifying each change.
b. Web Support
Customers that purchase Basic Support Services have access through the Bloombase SupPortal to Bloombase's searchable library of troubleshooting advice, current Software information, Bloombase's Knowledgebase (which contains downloadable user manuals, tutorials, and best practices), downloads of Bloombase products, add-ons, and patches, the ability to interact with the Bloombase user community, and the ability to obtain immediate online help. Bloombase will use commercially reasonable efforts to ensure the availability of the Bloombase SupPortal 24x7.
c. Email Support
Bloombase will provide Customer with access to email support at https://supportal.bloombase.com to resolve questions about the implementation, configuration, use and operation of the Software. Email support is available 24x7. Bloombase will respond to support inquiries made by email in accordance with their severity level and within the timeframes specified above.
d. Phone Support
Bloombase will provide Customer with access to telephone support at https://supportal.bloombase.com to resolve questions about the implementation, configuration, use and operation of the Software. Telephone support is available 24x7. Bloombase will respond to support inquiries made by telephone in accordance with their severity level and within the timeframes specified above.
7. Additional Services
Bloombase offers professional services, including but not limited to, onsite Software support, Software installation and configuration services, and data migration, subject to Bloombase's acceptance of a written purchase order, Customer's acceptance of a separate professional services agreement, and Customer's payment of fees at the then-current rate for the applicable professional services.
a. Remote Support
Customers that have purchased Support Services are eligible for remote support, which may be requested on the Bloombase SupPortal. Remote support is provided on as-needed, as-available, invitation-only basis.
b. Onsite Support
Customers that have purchased Support Services may request onsite Support Services on the Bloombase SupPortal, but such onsite Support Services are subject to the availability of technical resources and travel arrangements. Customers may contact their Bloombase account executive for current prices.
8. Customer Obligations
a. Technical Support Contacts
Customer will designate a reasonable number of technically qualified employees to serve as Customer's Technical Support Contacts.
b. Access
Customer will provide Bloombase with (a) remote and, if applicable, onsite access to the Software; and (b) if applicable, adequate work space and facilities, computers, power, light, telephone, internet availability, software, equipment, and assistance reasonably required to provide the Support Services. If Customer fails to provide such access, resulting in an inability to provide Support Services, Bloombase will be entitled to charge for Support Services at its then-current service rates.
c. Cooperation
Customer will make reasonable efforts to resolve Errors without assistance from the Technical Support Contacts and will only report reproducible Errors. Customer will promptly notify Bloombase when an Error arises and will provide Bloombase with sufficient details, including information on symptoms and attempts to isolate the Error and log files, to enable Bloombase to reproduce the Error. Customer will implement such procedures or workarounds as reasonably requested by Bloombase.
9. Fees and Payment
a. Support Services Fees
Bloombase will provide Customer with Support Services upon receipt of payment of the fees applicable at the time of purchase for the Support Services (the "Support Services Fees"). If Customer requires technical support services in addition to the Support Services purchased by Customer, Customer will pay Bloombase at its then-current rates for the additional technical support services. Bloombase reserves the right to increase Support Services Fees at any time. Bloombase will provide notice of any such price increase at least sixty (60) days prior to Customer's date of renewal of Support Services. If Customer does not accept the price increase, Customer has the option of not renewing these Terms.
b. Payment
Support Services Fees are payable in advance on an annual basis within thirty (30) days of invoice date. Customer will pay all amounts due under this Agreement in U.S. currency. All fees payable under this Agreement are net amounts and are payable in full, without deduction for taxes or duties of any kind. Customer will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use, and withholding taxes) associated with this Agreement or Customer's receipt or use of the Software and Support Services, except for taxes based on Bloombase's net income. Except as otherwise specified in these Terms, all Support Services Fees are non-cancellable and non-refundable.
c. Reinstatement of Support Services
If Customer wishes to reinstate Support Services after a period following the expiration or termination of a prior period during which Bloombase provided Support Services to Customer (such period, a "Lapsed Period"), Customer will pay to Bloombase an amount equal to the Support Services fees that would have been due for the Support Services during the Lapsed Period, as well as any applicable reinstatement fee equal to 50% of the Support Services fees that would have been due for the Support Services during the Lapsed Period, and the amount due for the Support Services being purchased by Customer. All amounts will be calculated in accordance with then-current prices.
10. Term and Termination
a. Term
These Terms will remain in effect for one (1) year from the date of purchase of Support Services by Customer. These Terms will automatically renew for additional one (1) year periods unless (i) either party provides notice of non-renewal to the other party at least thirty (30) days prior to the renewal date; or (ii) prior to the renewal date Customer fails to pay the annual fees applicable for the Support Services purchased by Customer.
b. Termination
Either party may terminate these Terms if the other party breaches any material term of these Terms and fails to cure such breach within thirty (30) days following written notice thereof to the other party.
11. Warranty and Disclaimer
a. Limited Warranty
Bloombase warrants that the Support Services will be provided in a professional and workmanlike manner; provided, however, that Customer's sole and exclusive remedy and Bloombase's sole and exclusive obligation for a breach of the foregoing warranty will be for Bloombase to re-perform such Support Services in accordance with the foregoing warranty.
b. Warranty Disclaimer
EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, ALL SUPPORT SERVICES PROVIDED BY BLOOMBASE PURSUANT TO THESE TERMS ARE PROVIDED "AS IS," AND BLOOMBASE HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. BLOOMBASE DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE RESULTS OF THE SUPPORT SERVICES. CUSTOMER ACKNOWLEDGES THAT BLOOMBASE IS NOT RESPONSIBLE FOR AND WILL HAVE NO LIABILITY FOR SERVICES PROVIDED BY ANY PERSON OR ENTITY OTHER THAN BLOOMBASE, INCLUDING SERVICES PERFORMED BY CUSTOMER. NOTHING IN THIS AGREEMENT WILL AFFECT THE WARRANTIES OR DISCLAIMERS PROVIDED IN ANY BLOOMBASE ENTERPRISE LICENSE AGREEMENT OR OTHER BLOOMBASE END USER LICENSE AGREEMENT.
12. Confidential Information
"Confidential Information" means: (a) any business or technical information of either party, including without limitation, any information relating to the Software, finances, marketing plans, customer lists, business opportunities, research, development or know-how, and any other information the nature of which would reasonably be expected to be proprietary or confidential; and (b) the specific terms and conditions of these Terms. Confidential Information will not include information in the public domain or that is independently developed by a party without reference to Confidential Information of the other party. The parties will not use the Confidential Information of one another except as necessary to perform these Terms and will not disclose such Confidential Information to any third party. The parties will use all reasonable efforts to maintain the confidentiality of one another's Confidential Information, but in no event less than the efforts that it ordinarily uses with respect to its own proprietary information of similar importance. The foregoing obligations will not restrict the parties from disclosing Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the parties give reasonable notice to one another to enable them to contest the order or requirement. In addition, Bloombase may disclose these Terms to prospective investors, legal and financial advisors, and potential acquirers in connection with discussions pertaining to investment in or acquisition of Bloombase, its securities, or assets. The foregoing obligations will remain in effect for a period of five (5) years from the date of last disclosure of Confidential Information by either party.
13. Limitation of Liability
BLOOMBASE'S LIABILITY ARISING FROM OR IN RELATION TO THESE TERMS WILL BE LIMITED TO THE AMOUNTS PAID BY CUSTOMER TO BLOOMBASE IN THE TWELVE (12) MONTHS PRECEDING THE EVENT FROM WHICH SUCH LIABILITY ARISES. IN NO EVENT WILL BLOOMBASE BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, STATUTORY, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, WHETHER FOR BREACH OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT BLOOMBASE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
14. General
a. Assignment
Neither party may assign or transfer these Terms, in whole or in part, without the other party's prior written consent, except that Bloombase may assign or transfer these Terms without such consent in the event of a merger, acquisition, or sale of all or substantially all of Bloombase's assets. Any attempt to assign these Terms, without such consent, will be void. Subject to the foregoing, these Terms will bind and benefit the parties and their respective successors and permitted assigns.
b. Governing Law
These Terms will be governed by and construed in accordance with the laws of the State of California, excluding its body of law controlling conflict of laws. Any legal action or proceeding arising under these Terms will be brought exclusively in the federal or state courts located in the Northern District of California and the parties irrevocably consent to the personal jurisdiction and venue therein.
c. Relationship of the Parties
The parties to these Terms are independent contractors and these Terms will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent.
d. Force Majeure
Neither party will be responsible for any failure or delay in its performance under these Terms (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, terrorism, riot, acts of God, or governmental action.
e. Non-Exclusive Remedy
Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
f. Notices
All notices required or permitted under these Terms will be in writing, will reference these Terms, and will be deemed given: (a) when delivered personally; (b) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; or (c) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid. All such notices will be sent to such address as may be specified by either party to the other party in accordance with this Section.
g. Severability and Waiver
If any provision of these Terms is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of these Terms will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law. The failure by either party to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provision.
h. Entire Agreement
These Terms constitute the complete and exclusive understanding and agreement of the parties with respect to its subject matter and supersede all prior understandings and agreements, whether written or oral, with respect to its subject matter. Any waiver, modification, or amendment of any provision of these Terms will be effective only if in writing and signed by the parties hereto.
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