Last Updated: October 10th, 2017
DriveScale Support and Maintenance Services Terms and Conditions
These Support Maintenance Terms and Conditions (the “Support Terms”) apply to any licensee (“Licensee”) who is entitled to receive support services from DriveScale, Inc. (“DriveScale”) for specific DriveScale product(s) (the “Product”) pursuant to a written agreement between Licensee and DriveScale (an “Agreement”). To the extent DriveScale has become obligated for support and maintenance, the following will apply with respect to software Products so long as they remain DriveScale’s standard terms for support and the Licensee is in full compliance with the Agreement.
- Support and Maintenance Services. Support and Maintenance Services consist of (a) Error Correction and Telephone Support provided to a single consistent technical support contact concerning the installation and use of the then current release of a Product and the Previous Sequential Release, (b) E-mail Support, (c) Web Support, and (d) Product updates that DriveScale in its discretion makes generally available to its support and maintenance customers without additional charge.
- Error Priority Levels. DriveScale shall exercise commercially reasonable efforts to correct any Error reported by Licensee in the current unmodified release of Product in accordance with the priority level reasonably assigned to such Error by DriveScale.
- Priority 1 Errors – DriveScale shall respond within 4 hours and promptly commence the following procedures: (i) assign DriveScale engineers to correct the Error; (ii) notify DriveScale management that such Errors have been reported and of steps being taken to correct such Error(s); (iii) provide Licensee with periodic reports on the status of the corrections; and (iv) initiate work to provide Licensee with a Workaround or Fix.
- Priority 2 Errors – DriveScale shall respond in 1 day and exercise commercially reasonable efforts to include the Fix for the Error in the next regular Product maintenance release.
- Priority 3 Errors – DriveScale may include the Fix for the Error in the next major release of the Product.
If DriveScale believes that a problem reported by Licensee may not be due to an Error in a Product, DriveScale will so notify Licensee. At that time, Licensee may (1) instruct DriveScale to proceed with problem determination at its possible expense as set forth below, or (2) instruct DriveScale that Licensee does not wish the problem pursued at its possible expense. If Licensee requests that DriveScale proceed with problem determination at its possible expense and DriveScale determines that the error was not due to an Error in the Product, Licensee shall pay DriveScale, at DriveScale’s then-current and standard consulting rates, for all work performed in connection with such determination, plus reasonable related expenses incurred therewith. Licensee shall not be liable for (i) problem determination or repair to the extent problems are due to Errors in the Product; or (ii) work performed under this paragraph in excess of its instructions; or (iii) work performed after Licensee has notified DriveScale that it no longer wishes work on the problem determination to be continued at its possible expense (such notice shall be deemed given when actually received by DriveScale). If Licensee instructs DriveScale that it does not wish the problem pursued at its possible expense or if such determination requires effort in excess of Licensee’s instructions, DriveScale may, at its sole discretion, elect not to investigate the error with no liability therefor.
- Exclusions. DriveScale shall have no obligation to support: (i) altered or damaged Products or any portion of a Product incorporated with or into other software; (ii) any Product that is not the then current release or immediately Previous Sequential Release; (iii) Product problems caused by Licensee’s negligence, abuse or misapplication, use of Products other than as specified in DriveScale’s user manual or other causes beyond the control of DriveScale; (iv) Products installed on any hardware that is not supported by DriveScale; or (v) third party products not provided by DriveScale. DriveScale shall have no liability for any changes in Licensee’s hardware which may be necessary to use Products due to a Workaround or maintenance release.
- Support Plan. Support will be provided to Licensee in accordance with the specific DriveScale support plan that has been selected and paid for by Licensee (the “Support Plan”), as follows:
|Support Plan:||Telephone Support:||Hardware Replacement:|
|Core||8AM – 5PM PT, Mon-Fri||Standard warranty terms.|
|Professional||6AM – 6PM PT, Mon-Fri||Within 2 business days.|
|Enterprise||24/7||Next business day.|
- “E-mail support” means ability to make requests for technical support assistance by e-mail at any time (with reasonable efforts by DriveScale to respond within one business day) concerning the installation and use of the then current release of a Product and the Previous Sequential Release.
- “Error” means an error in a Product which significantly degrades such Product as compared to DriveScale’s published performance specifications.
- “Error Correction” means the use of reasonable commercial efforts to correct Errors.
- “Fix” means the repair or replacement of object or executable code versions of a Product or documentation to remedy an Error.
- “Previous Sequential Release” means the release of a Product which has been replaced by a subsequent release of the same Product. Notwithstanding anything else, a Previous Sequential Release will be supported by DriveScale only for a period of twelve (12) months after release of the subsequent release.
- “Priority 1 Error” means an Error which renders a Product inoperative.
- “Priority 2 Error” means an Error which substantially degrades the performance of a Product or materially restricts Licensee’s use of such Product.
- “Priority 3 Error” means an Error which causes only a minor impact on the Licensee’s use of a Product.
- “Telephone Support” means technical support telephone assistance concerning the installation and use of the then current release of a Product and the Previous Sequential Release, which shall be provided during the days and hours set forth in Section 4 (Support Plan) as applicable to Licensee’s Support Plan.
- “Web Support” means access to DriveScale’s support website, including access to product knowledge base, product documentation and software downloads.
- “Workaround” means a change in the procedures followed or data supplied by Licensee to avoid an Error without substantially impairing Licensee’s use of a Product.
THESE TERMS AND CONDITIONS CONSTITUTE A SERVICE CONTRACT AND NOT A PRODUCT WARRANTY. ALL PRODUCTS AND MATERIALS RELATED THERETO ARE SUBJECT EXCLUSIVELY TO THE WARRANTIES SET FORTH IN THE AGREEMENT. THIS ATTACHMENT IS AN ADDITIONAL PART OF THE AGREEMENT AND DOES NOT CHANGE OR SUPERSEDE ANY TERM OF THE AGREEMENT EXCEPT TO THE EXTENT UNAMBIGUOUSLY CONTRARY THERETO.