Samma Terms & Conditions
Support Services Agreement
GrayMeta, Inc. (“GrayMeta” or the “Company”) and (“Customer” and, together with GrayMeta or the Company, the “Parties”) hereby enter into this Support Services Agreement (“Agreement”) as of the date set forth below (the “Effective Date”). This Agreement consists of the “Sales Order,” the below Standard Terms and Conditions, and the following exhibits, each attached hereto and incorporated herein by this reference:
Exhibit A – Support Services
Exhibit B – Pricing and Payment
The Company supports certain Oracle licensed software and hardware systems as described in the Sales Order. Customer desires to purchase certain software support and/or hardware repair services and from the Company for such software and hardware systems. As a condition to receiving the support services, each Customer must agree to abide by the terms set forth herein.
Standard Terms & Conditions
1.1. “Effective Date” has the meaning set forth as the “date” in the Sales Order.
1.2. “Oracle” means Oracle America Inc. (including Front Porch Digital and SAMMA).
1.3. “Oracle Software” means software and firmware owned by Oracle, in object code form, including all documentation therefor, which is being supported under the terms of this Agreement as described in the Purchase Order.
1.4. “Oracle Hardware” means hardware manufactured by Oracle which is being supported under the terms of this Agreement as described in the Purchase Order.
1.5. “Products” means the Oracle Software and Oracle Hardware.
1.6. “Purchase Order” means an order, or other similar document referencing this Agreement that is submitted by Customer, and accepted by the Company by a return Sales Order. Further purchase orders referencing this Agreement may be added to the Agreement as further agreed by the Parties. In the event of a conflict between any Purchase Order and this Agreement, the Purchase Order will only govern with respect to identifying the quantities, pricing and units to be covered under this Agreement.
1.7. “Specifications” means descriptions and data regarding the features, functions and performance of the Oracle Hardware and/or Oracle Software.
1.8. “System” means, collectively, the Oracle Software, Oracle Hardware and any Third-Party Products provided hereunder.
1.9. “Service Period” means the period for applicable Products set forth in Exhibit A and Exhibit beginning on the Effective Date.
1.10. “Third-Party Products” means any software or hardware obtained from third-party manufacturers or distributors and provided by the Company hereunder including open source software.
2. Acceptance of Terms and Conditions; Term
The Company’s obligations to Customer are expressly limited to, and conditioned on, Customer’s acceptance of this Agreement including these Standard Terms and Conditions. This Agreement is effective as of the Effective Date, unless earlier terminated under Section 13.
2.1. Exhibit A (Support Services) and the terms and conditions specified therein will survive any expiration or termination of this Agreement for the duration of the Service Period.
2.2. Exhibit B (Pricing and Payment) sets forth general pricing and payment terms that will apply to the pricing for Products as set forth in mutually agreed upon Purchase Orders.
2.4. Exhibit B (Pricing and Payment) (to extent of any payments still due) and Sections 6, 10, 11, 16 and 17 of the Agreement will survive any expiration or termination of this Agreement in accordance with their respective terms. In addition to the foregoing, terms of this Agreement that do not survive expiration or termination will nonetheless be effective in determining the Parties’ rights and obligations for conduct or events taking place before such expiration or termination.
3. The Company’s Responsibilities
3.1. The Company shall provide the software and hardware support services specified in Exhibit A during the Service Period.
4. Customer’s Responsibilities
4.1. Customer shall provide the Company with physical accommodations reasonably required for the Company to perform its obligations, including premises access, electrical power, data connectivity, heat and air conditioning.
4.2. Customer shall provide information and access to personnel reasonably required for the Company to perform its obligations.
4.3 Customer must share responsibility for the timely execution its responsibilities set forth in Exhibit B. Customer shall provide the Company with convenient, complete and timely access to equipment and network facilities required to perform the Services. This includes full access to the Internet and a Virtual Private Network (“VPN”) connection to enable installation and remote services. Further, Customer will honor payment terms and timing set forth in Exhibit B.
4.4 Customer shall have obtained from Oracle and shall maintain all required licenses to use the Oracle Software and Oracle Hardware and all such licenses shall be valid during the Service Period.
5. Title and Risk of Loss of the Company Hardware
Title and risk of loss for each item of hardware provided by the Company under this Agreement will pass to Customer on delivery.
All patents, copyrights, mask works, trade secrets, drawings, descriptions and written information and other proprietary rights in or related to the Products are and will remain the exclusive property of Oracle, whether or not specifically recognized or perfected under the laws of the jurisdiction in which the Product is used or licensed. Customer will not take any action that jeopardizes Oracle’s proprietary rights or acquire any right in the Products, or Confidential Information. Oracle will own all rights in any copy, translation, modification, adaptation, derivative work or other derivation of the Oracle Software, Oracle Hardware or other items of its Confidential Information, including any improvement or development thereof. Customer will, or will obtain, at the Company’s request, the execution of any instrument that may be appropriate to assign these rights to Oracle to perfect these rights in the Company’s name. Customer shall not alter or remove any trademarks applied to, embedded in or associated with the Products or Third Party Products, or any other materials provided by the Company to Customer.
7. Third-Party Component Vendors Selected by Customer or its Integrator
GrayMeta delivery commitments and product performance may be dependent upon the timely delivery of third-party component vendors and representations they have made regarding their products. In the event that third-party component vendors or their products fail to deliver as promised, GrayMeta will not be responsible for any resulting impact on the delivery or performance of the products and/or services included in this arrangement. Should Customer request assistance from GrayMeta to achieve a workaround or other solution to delays or system deficiencies caused by third-party component vendors, these changes will be handled through change order requests.
8. No Warranties
THE SUPPORT SERVICES TO BE PROVIDED UNDER THIS AGREEMENT ARE BEING PROVIDED “AS IS”. THE COMPANY DOES NOT GUARANTEE THE PERFORMANCE OF THE ORACLE SOFTWARE OR ORACLE HARDWARE. THE COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY BASED ON A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
9. Indemnification and Hold Harmless
9.1. Each Party shall indemnify the other Party from third-party claims for injury, death or property damage based on the other Party’s alleged gross negligence or willful misconduct.
9.2. Customer will defend, indemnify and hold the Company and its officers, agents and employees harmless from and against any and all losses, costs, damages, claims, liabilities or expenses (including without limitation reasonable attorneys’ fees and costs) incurred or arising out of or related to (a) Customer’s failure to comply with applicable laws, including intellectual property laws; (b) a patent, copyright or trademark infringement claim arising from the Company’s compliance with Customer’s specific designs or instructions, or use by Customer other than in accordance with the Specifications; (c) the performance of non-performance of the Oracle Software or Oracle Hardware and any defects or bugs existing in the Oracle Software or Oracle Hardware. Company may participate in the defense of the claims with counsel of its own choosing, at its cost and expense.
10. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES FOR ANY CLAIM ARISING UNDER THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH OF THE PARTIES SHALL BE LIABLE TO THE OTHER FOR ANY DIRECT DAMAGES RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE LIABILITY OF A PARTY TO THE OTHER PARTY, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT OR OTHERWISE, FOR ANY EVENT, ACT OR OMISSION SHALL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT PAID TO GRAYMETA UNDER THIS AGREEMENT DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE MOST RECENT EVENT. THESE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 10 SHALL NOT APPLY TO: (I) INDEMNIFICATION OBLIGATIONS UNDER SECTION 9; (ii) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND (iii) CUSTOMER’S BREACH OF PAYMENT OBLIGATIONS UNDER THIS AGREEMENT.
11. Confidential Information
Neither Party will use or disclose the other Party’s Confidential Information without the other Party’s prior written consent. “Confidential Information” means, as to the Company, the Products, as to either Party, any information designated as confidential by the Party when or before it is disclosed. This paragraph does not apply to information (a) after it becomes publicly known through no fault of the receiving Party, (b) already rightfully in the receiving Party’s possession when received, (c) developed by the receiving Party without the use of the other Party’s Confidential Information or (d) required to be disclosed by law so long as the other Party is given immediate notice of the request or order that the information be disclosed and the fullest opportunity under law to prevent or limit the disclosure. Each Party acknowledges that its breach of this Section 11 may cause the other Party substantial and irreparable harm for which the other Party would be entitled to equitable relief in addition to any available legal remedies. Each Party hereby waives any requirement to post bond or provide other security as a condition to receiving such equitable relief.
12. Force Majeure
The Company’s obligations hereunder will be suspended so long as compliance is impeded or prevented by causes beyond the Company’s reasonable control, which may include acts of God, embargoes, acts of war (including terrorist attacks), labor disturbances and acts or regulations of governmental entities.
If either Party materially breaches this Agreement and does not cure the breach within 30 days after receiving written notice of the breach from the non-breaching Party, the non-breaching Party may terminate this Agreement as of a termination date specified in that notice or a subsequent notice delivered within such 30-day period. If the breach cannot be completely cured within the 30-day period, no default will occur if the Party receiving the notice begins curative action within the 30-day period and thereafter proceeds with diligence and in good faith to cure the breach as soon as practicable.
Prices are FCA (Free Carrier) at GrayMeta designated place of delivery for all spare parts. Export clearance is included, but import taxes and other duties to be paid in the destination country are not included.
15. Compliance with Export and Import Laws
Export laws and regulations of the United States and other relevant local export laws and regulations may apply to the products included in this Agreement. Customer agrees that such export control laws govern Customer’s use and distribution of the products (including technical data) and any services deliverable under a Purchase Order, and Customer agrees to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). Customer agrees that no data, information, program and/or materials resulting from use of the products (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws. Customer shall be solely responsible for payment of all import and/or export duties, if any, in connection with purchase, shipment, installation and use of any spare parts provided by the Company.
16.1. Assignment. Customer may not assign any rights or delegate any obligations under this Agreement without the prior written consent of the Company. Any attempted assignment or delegation in violation of this Section 16.1 will be null and void.
16.2. Severability; Beneficiaries. If any term of this Agreement is held to be unenforceable, the other terms of this Agreement will be enforced to the fullest extent permitted by law. No person or entity other than the Company and Customer shall have any rights under this Agreement.
16.3. Counterparts. This Agreement may be executed in counterparts and delivered electronically by facsimile or by e-mail in PDF, each of which will be deemed an original but all of which together will constitute one and the same instrument.
16.4. Governing Law. This Agreement will be construed under the laws of the State of California, and the Parties irrevocably agree that the state and federal courts in the County of Los Angeles have exclusive jurisdiction for all actions to enforce this Agreement.
16.5. Waiver. No waiver or failure of a party to assert any right under this Agreement on any one occasion will operate as a waiver of the same or any other right on any other occasion.
16.6. Notices. All notices under this Agreement will be delivered personally, sent by confirmed facsimile, sent by nationally recognized express courier or sent by certified or registered U.S. mail, return receipt requested, to the address shown on the Signature Page or such other address as may be specified by either Party to the other Party in compliance with this Section 16.6. Notices will be deemed effective on personal receipt, receipt of such electronic facsimile confirmation, two days after such delivery by courier and four days after such mailing by U.S. mail.
16.7. Interpretation. This Agreement, including all Exhibits, is the complete and final expression of the Parties’ agreement regarding its subject matter and supersedes all communications or agreements, written or oral, by the Parties regarding such subject matter. The parties mutually agree that all terms and conditions on Purchase Orders are superseded by these Standard Terms and Conditions other than identifying the Oracle Software and Oracle Hardware being supported by the Company. If there is any conflict between these Standard Terms and Conditions and any provision set forth in any other part of this Agreement including any exhibits, these Standard Terms and Conditions will prevail. No amendment or supplement to this Agreement is effective unless it is in writing, it identifies itself as an amendment to this Agreement and is signed by both Parties’ authorized representatives. The word “include” (or any of its derivatives) is deemed to be followed in all contexts by the words “without limitation.” Headings are included for convenience and will be ignored in interpreting this Agreement.
Exhibit A - Support Services
1. Description of Support Services
1.1. During the Service Period, the Company shall provide the following types of support services:
Email and Support ticket management. The primary interface and communication mechanism to the company’s support ticket system is through: firstname.lastname@example.org. Company shall provide email support and support ticket management on a best case basis 24 hours per day, 7 days a week. All errors shall be investigated and if the error relates to the Oracle Software and/or Oracle Hardware, or is directly caused by the Oracle Software and/or Oracle Hardware, (a) a support ticket shall be opened, and (b) the Company shall use its commercially reasonable efforts to resolve the error in accordance with the procedures and processes set forth in this Exhibit.
Telephone Support. The Company telephone support representatives shall be available to receive Customer telephone calls between the hours of 9:00 a.m. and 5:00 p.m., United States Eastern Time (“ET”), Monday through Friday, excluding holidays.
Installation Assistance. The Company shall provide to Customer telephone assistance for the implementation or installation of Bypasses, Fixes, and Updates between the hours of 9:00 a.m. and 5:00 p.m., United States Eastern Time (ET), Monday through Friday, excluding public holidays.
Workarounds; Other Services. The Company shall provide to Customer such workarounds as are necessary to ensure the resolution of errors which can be resolved by a workaround. The Company will also provide fixes to resolve errors that can be resolved by a fix. The Company shall provide to Customer any enhancements or patches that the Company deems necessary to ensure that the Customer’s system which runs the Oracle Software remains fully effective. Installations of such enhancements or patches are at Company’s discretion.
1.2. With the exception of SAMMA Robot support, on-site support services are not included within the support services described in the Purchase Order. Customer may request on-site support services. If the Company agrees to provide on-site support services, such services will be provided on a time and material basis, plus travel costs, and Customer shall pay the Company for such additional costs pursuant to the terms of any additional Purchase Orders describing the on-site serves and associated costs. For SAMMA Robot support, one preventative maintenance visit is included with the support services described in the Purchase Order. For subsequent SAMMA Robot support instances, Customer may request on-site support services. If the Company agrees to provide on-site support services, Customer shall reimburse the Company for actual travel costs and expenses.
1.3. In special or unusual circumstances, Customer may request to borrow a hardware unit that can serve as a temporary replacement for the malfunctioning item of Serviced Hardware (“Loaner”). The Company may, at its discretion, provide a Loaner for Customer to use until the covered item is repaired or replaced. The Company and Customer shall agree in advance on the fee for the use of the Loaner.
1.4. The following services are among those not covered, and are available at the Company’s then current time and material rates.
1.4.1 The repair or replacement of Oracle Hardware damaged by accident, abuse, neglect, improper usage or as a result of service modification by anyone other than the Company and its authorized service representatives.
1.4.2 The repair, refitting or replacement of any Oracle Hardware to comply with the changes in any applicable laws or regulations becoming effective after acceptance of such Oracle Hardware from Oracle.
1.5. If a problem cannot be resolved using remote diagnostics, upon Customer’s prior authorization, the Company will send a specialist to the Customer’s premises under the following terms:
1.5.1. If the problem is solely related to Oracle Software, the Company shall be responsible for all expenses associated with the resolution of the problem, provided that Customer has incorporated all error corrections or changes to the Oracle Software within ten days after initially receiving them from the Company.
1.5.2. If the problem is due to acts or omissions by Customer or a third party, including by the failure to incorporate all error corrections or changes in a timely manner, Customer shall be responsible for all fees and expenses at the Company’s then-current consulting service rate. Such problems include those that arise from the failure of Third-Party Products, installation of the Oracle Software on hardware that was not approved by the Company, or improper use of the Oracle Software or the hardware upon which it is installed. If GrayMeta is unable to resolve the problem through remote maintenance, Customer will be responsible for reasonable travel and out of pocket expenses associated with resolving such maintenance issues.
1.6. As is reasonably necessary for the Company to provide services, Customer shall provide access to its personnel and premises, be responsible for maintaining all necessary computer hardware, communications equipment, telephone lines, cabling and modems, and make available VPN and Internet access.
2. Company and Customer Responsibilities
2.1 Level 1 responsibilities and activities to be performed by customer
Identification of the source of the problem. If the problem is not related to Oracle Hardware or Oracle Software products, then it is the responsibility of the End User to perform escalation to the corresponding vendor.
Open a Company support ticket by formalizing problem description in an email to email@example.com.
Installation on the End User’s premises of parts, circuit boards, adjustments, patches or workarounds provided by the Company in web-based and telephone consultation with the Company.
Closing of the case file once the problem has been resolved, and acknowledgment to the Company.
2.2 Level 2 responsibilities and activities to be performed by customer
Call response, support ticket creation, logging and acknowledgement of call to the End User’s Level 1 engineer.
Detailed analysis of the problem by telephone or web based connection.
Remotely launched diagnosis routines (in accordance with clause 3), with possible End User intervention, using the remote connection as specified below.
Attempt to reproduce the problem in the Company’s laboratory, or on the End User’s site.
Identification of the module concerned.
If the problem has nothing to do with any of the Oracle Hardware or Oracle Software products supported, in their use, function, or interoperability with the End User’s production environment, return of the call to Level 1, along with indications concerning the possible source of the problem.
In all other circumstances, if the problem concerns Oracle Hardware or Oracle Software products, development and test of a patch, repair of hardware, or a workaround to enable the End User to pursue normal business operations.
Call follow up to Level 1 engineer.
Once corrected, closing of the support ticket and documentation of the fix determined at Level 1.
2.3 Level 2 responsibilities and activities to be performed by customer
Distribution of new versions and patches of the Oracle Software products concerned.
Exhibit B - Pricing and Payment
Pricing Generally. Customer shall pay to the Company the fees, charges and expenses (collectively, the “Charges”) specified within the Purchase Orders. Customer shall pay to the Company the amounts owing without deduction (including for any applicable withholding taxes), or set off, by wire transfer to such account or accounts as shall be designated by the Company. Customer shall bear full responsibility for determining and remitting the applicable withholding tax, on a grossed-up basis, to the appropriate tax authorities and shall provide the Company with contemporaneous evidence of such payment.
Payment Terms for Systems. All prices and fees are based in United States dollars. 100% of the service and support fees described on the Purchase Order shall be due immediately upon Purchase Order acceptance by the Company.
Late Payments. The Company reserves the right to charge a late fee equal 1% per month for amounts paid beyond their respective due dates that were not reasonably in dispute.
Taxes. Customer is responsible for all sales, VAT, excise, personal property or other taxes or duties on the amounts paid or products or services provided under this Agreement. If Customer is exempt from such taxes or duties, Customer shall provide the Company with a tax exemption certificate.
Addresses for notices and billing:
350 Via Las Brisas, Suite 230
Newbury Park, CA 91320
Customer Support: firstname.lastname@example.org