Terms and Conditions for License and Software and Support Services

SouthSuite, Inc, a Delaware corporation, will provide Technical Support (as defined herein) (the “Services”) to the Customer, per the terms of these Sales and Support Terms and Conditions (the “Terms and Conditions”).

1. Definitions.

1.1 “Error” means a failure in the Software to materially conform to SouthSuite, Inc, specifications.

1.2 “Maintenance Release” means a generally available release of the Software that typically provides maintenance corrections only or high severity bug fixes, designated by SouthSuite, Inc by means of a change in the digit to the right of the second decimal point (e.g. SRX 7.0 >> SRX 7.0.1), or for certain Software, by means of a change in the digit of the Update number (e.g. Software 7.0 Update 1).

1.3 “Minor Release” means a generally available release of the Software that (i) introduces a limited amount of new features, functionality, and minor enhancements; (ii) fixes for high severity and high priority bugs identified in the current release, and (iii) is designated by TBCC by means of a change in the digit to the right of the first decimal point (e.g., SRX 7.0 >> SRX 7.1).

1.4 “Major Release” also known as an “Upgrade” means a generally available release of the Software that (i) contains functional enhancements and extensions, (ii) fixes for high severity and high priority bugs, and (iii) is designated by SouthSuite, Inc by means of a change in the digit to the left of the first decimal point (e.g., SRX 7.0 >> SRX 8.0).

1.5  “Services Fees” means the fees for Services specified in a corresponding SouthSuite, Inc or reseller invoice.

1.6  “Services Period” means the twelve (12) month period for which Customer has purchased the Services and will begin on the date that (i) the Customer’s Services Fees or (ii) the applicable Software License Key(s) SouthSuite received is (are) made available via Disk-on-Module (“DoM”) or online download, whichever occurs first.

1.7 “Licensed Software” means the licensed binary software known as “Coraid SR” or “SR”

1.8 “Technical Support” means, depending upon the type of support purchased by a Customer, the provision of email, web-based, or telephone technical assistance by SouthSuite, Inc to Customer’s technical contact(s) with respect to installation, Errors, and technical product problems.

1.9 “Third Party Products” means any software or hardware that is manufactured by a party other than SouthSuite, Inc and is either (i) not delivered with the Software or (ii) not integrated with or incorporated into the Software.

2. Service Terms.

2.1 Provision of Services. Subject to all the provisions of these Terms and Conditions, SouthSuite, Inc shall, during the Services Period, provide Customer with Services. Services will generally be available on any business day from the hours of 8 a.m. to 6 p.m. Eastern Time in the US. Customer requests for Services must be initiated either by email or, when available, online through SouthSuite, Inc’s web portal.

2.2 End of Availability. SouthSuite, Inc from time to time may, at its discretion, decide to retire Software and to discontinue Services applicable to retired Software (“End of Availability”). TBCC shall publicly post a notice of End of Availability for any version of SRX or VSX for all affected customers, including the last date of general commercial availability of the affected Software and the timeline for discontinuing Services for that particular Software. SouthSuite, Inc may but shall have no obligation to provide Services for Software that is outside of the applicable service life.

2.3 Purchase Requirements.
 (a) Except as otherwise provided for by SouthSuite, Inc, Customer may purchase Services for the most current, generally available release of the Software provided by SouthSuite, Inc. Upon request by Customer, SouthSuite, Inc may, and intends, to offer Technical Support for older versions of the Software and such support for older versions must be confirmed by SouthSuite, Inc in writing. (b) The Services Period is one (1) year beginning on the date of Customer’s full payment of applicable fees for a Software license and purchase of the Services or, when applicable, Customer’s completion of an online customer profile, or submission of a purchase order that shall indicate Customer’s firm commitment to purchase and pay the applicable license and support options specified in customer’s purchase order. 
 (c) These License and Services Terms and conditions will automatically update to SouthSuite, Inc’s then-current terms and conditions whenever published online by South Suite, Inc, and upon such online publishing will become effective to all open and active Licenses and support agreement software. They can be found online at www.coraid.com/terms-and-conditions.html.

2.4 Exclusions. Services do not cover problems caused by the following: (i) unusual external physical factors such as inclement weather conditions that cause electrical or electromagnetic stress or a failure of electric power, air conditioning, or humidity control; neglect; misuse; operation of the Software with other media not in accordance with the manufacturer’s specifications; or causes other than ordinary use; (ii) use of the Software that deviates from any operating procedures as specified by SouthSuite, Inc from time to time; (iii) Third Party Products; (iv) any customized deliverables created by SouthSuite, Inc, SouthSuite, Inc partners, or third-party service providers specifically for Customer as part of consulting services; (v) use of the Software with unsupported tools, APIs, interfaces, or data formats other than those specifically included with the Software and thus supported. Customer may request assistance from SouthSuite, Inc for such problems, for an additional fee.

2.5 Customer Responsibilities. SouthSuite,Inc’s obligations regarding Services are subject to the following: (a) Customer agrees to receive communications from SouthSuite via e-mail regarding Services (such as communications concerning support coverage, Errors, or other technical issues and the availability of new releases of the Software and training options). (b) Customer’s technical contact shall cooperate to enable SouthSuite, Inc to deliver the Services. (c) Customer is solely responsible for the use of the Software by its personnel. (d) Customer shall promptly report to SouthSuite, Inc all problems with the Software, and shall implement any corrective procedures provided by SouthSuite, Inc reasonably promptly after receipt. (e) Customer is solely responsible for protecting and backing up the data and information stored on the computers on which the Software is used and should confirm that such data and information is protected and backed up in accordance with any internal or regulatory requirements as applicable, before contacting SouthSuite, Inc for Technical Support. SouthSuite, Inc is not responsible for lost data or information in the event of errors or other malfunction of the Software or computers on which the Software is used. (f) Customer will have dedicated resources available to work 24 / 7 on Errors.

3. License of Software Terms

3.1 Use of Software. Customer’s use of Software is subject in all instances to the end user license agreement agreed to by Customer when purchasing the Licensed Software and Services. 3.2 Quotation Terms. The terms and conditions stated in any SouthSuite, Inc quote issued to Customer are incorporated into these Terms and Conditions by this reference. In case of any conflict between and these Terms and Conditions and the Quotation, these Terms and Conditions shall control.

4. Miscellaneous Terms

4.1 Payment Terms. Customer orders for Licensed Software and Services, whether initiated via email or online, must be paid in full in advance. All payments for Licensed Software and Services fees are nonrefundable except as specifically set forth in these Terms and Conditions. If placing an online order for Licensed Software and Services, Customer represents that Customer is authorized pursuant to applicable laws and regulations to commit to and make full payment prior to completion of the Services Period, as set forth herein. Any amounts paid by credit card that are initially approved and subsequently reversed shall be immediately due and payable and further be subject to an additional fee for the returned payment equal to 7.5% of the original amount charged and subsequently charged back or reversed. Amounts not paid on time are subject to a late charge equal to the lesser of one and one-half percent (1.5%) per month or the maximum amount allowed by applicable law. In any such event, TBCC may suspend performance of Services until such delinquency is corrected.

4.2 Limited Warranty. SouthSuite, Inc warrants that the Services to be performed hereunder will be done in a workmanlike manner and shall conform to industry standards. Upon Customer providing SouthSuite, Inc with a reasonably detailed written notice to cure within thirty (30) days of occurrence of an alleged nonconformance, SouthSuite, Inc will re-perform the Services to achieve commercially reasonable conformance with the above warranty. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THIS WARRANTY IS GIVEN EXPRESSLY AND IN PLACE OF ALL OTHER WARRANTIES, STATUTORY, EXPRESS, OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TO THE MAXIMUM EXTENT MANDATED BY LAW, THIS REMEDY WILL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO NONCONFORMANCE OF SERVICES.

4.3 Limitation of Liability. TO THE MAXIMUM EXTENT MANDATED BY LAW, SOUTHSUITE, INC SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED UPON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, ARISING FROM CUSTOMER’S USE OF THE LICENSED SOFTWARE AND SOUTHSUITE, INC’S PERFORMANCE OR NON-PERFORMANCE UNDER THESE TERMS AND CONDITIONS. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO CUSTOMER. SOUTHSUITE, INC’S LIABILITY UNDER THESE TERMS AND CONDITIONS WILL NOT, IN ANY EVENT, EXCEED THE FEES PAID BY CUSTOMER TO SOUTHSUITE, INC UNDER THESE TERMS AND CONDITIONS THAT ARE APPLICABLE TO THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT MOST DIRECTLY GIVING RISE TO THE CLAIM.

4.4 Termination. SouthSuite, Inc may terminate the Agreement and all Services immediately and at any time if (i) it is discovered that Customer is currently in breach of its Software license restrictions, pursuant to Customer’s Software license or (2) Customer is in material breach of these Terms and Conditions.

4.5 Data Protection. Customer acknowledges that correspondence and log files generated in conjunction with a request for Services may contain sensitive, confidential, or personal information. Customer is solely responsible for taking the steps it considers necessary to protect such data, including obscuring the logs or otherwise guarding such information prior to sending it to SouthSuite, Inc.

4.6 Other. Customer may not assign or delegate the Software License or these Terms and Conditions to any third party without the prior written consent of SouthSuite, Inc. These Terms and Conditions shall be governed by the laws of the State of Georgia without regard to its conflict of laws principles. The parties consent to the exclusive jurisdiction of the state and federal courts located in Clarke County, Georgia. These Terms and Conditions along with the Software License constitute the entire agreement of the parties with respect to SouthSuite, Inc’s license of the Software and provision of the Services to Customer, and supersede all prior written or oral communications, understandings, and agreements. These Terms and Conditions may not be amended except in a written document signed by both parties. Any waiver of the provisions of these Terms and Conditions must be in writing to be effective. Except as expressly set forth herein, no terms of any kind that Customer may attempt to use in whatever form will affect the obligations of the parties under these Terms and Conditions, and any such business terms of Customer are hereby rejected by SouthSuite, Inc. If any provision of these Terms and Conditions is found to be invalid or unenforceable, the remaining terms will continue to be valid and enforceable to the fullest extent permitted by law. SouthSuite, Inc may periodically update any or all of the documents referenced herein including these Terms and Conditions, all, without prior notice to Customer, by posting the revised or updated document online at coraid.com.