EULA

Caringo End User SOFTWARE License Agreement

Last updated May 10, 2019

This End User SOFTWARE License Agreement (“Agreement” or "EULA") is a contract between you (either an individual or a single entity) ("Customer") and Caringo Inc. ("Caringo"), a Corporation under the laws of Delaware, located at 6801 North Capital of Texas Highway, Building 2, Suite 200, Austin, Texas 78731, for any SOFTWARE that may be supplied by Caringo not categorized, labeled or considered a “Tool”, “Utility”, or “Sample” (“SOFTWARE”).

CLICKING ON THE "ACCEPT" BUTTON AT THE END OF THIS AGREEMENT INDICATES YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO CONTRACTUALLY BIND CUSTOMER. IF YOU DO NOT HAVE THIS AUTHORITY, YOU SHOULD NOT SELECT “ACCEPT” AND REQUEST APPROVAL FROM SOMEONE WHO DOES HAVE THIS AUTHORITY TO BIND CUSTOMER. IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT SELECT THE "ACCEPT" BUTTON AND YOU WILL NOT BE AUTHORIZED TO USE THE SOFTWARE.

DEFINITIONS:

SOFTWARE. Caringo Swarm software product(s), its manuals and documentation. The software also includes any updates and maintenance releases provided to you by Caringo.

COMPUTER. A single computer device, regardless of platform or operating environment, on which you will install and/or use the SOFTWARE.

In consideration of the mutual covenants and conditions contained in this Agreement, the parties agree as stated herein. Any following attachment referencing this Agreement, if signed/accepted/attached/applicable is also part of this Agreement.

1. Grant of License.

a) Caringo hereby grants to Customer a nonexclusive and nontransferable license, during the term of this Agreement, to use the object code for the SOFTWARE. For the purpose of this Agreement, the SOFTWARE shall include all versions, including current, previous, and subsequent versions, of any SOFTWARE supplied by Caringo, together with operating instructions, user manuals, training materials, and other documentation as may, in Caringo’s sole discretion, be supplied to Customer.

(ii) Swarm License. Caringo hereby grants to Customer a nonexclusive and nontransferable license, during the term of this Agreement, to use the object code for the SOFTWARE. The Swarm component of the SOFTWARE is licensed to an unlimited number of COMPUTERs  in a single Swarm Cluster up to the issued licensed capacity and term as expressed in the Swarm license file.

(ii) FileFly License. Caringo hereby grants to Customer a nonexclusive and nontransferable license, during the term of this Agreement, to use the object code for the SOFTWARE. The FileFly server component of the SOFTWARE is licensed to an unlimited number of COMPUTERs and a single Swarm Cluster.

(iii) SwarmNFS Site Server-Based License. Caringo hereby grants to Customer a nonexclusive and nontransferable license, during the term of this Agreement, to use the object code for the SOFTWARE. The SwarmNFS Site Server SOFTWARE is licensed to an unlimited number of COMPUTERs at a single location and on a single local area network of Customer and a single Swarm Cluster.

(iv) Caringo Drive License. Caringo hereby grants to Customer a nonexclusive and nontransferable license, during the term of this Agreement, to use the object code for the SOFTWARE. The Caringo Drive SOFTWARE is licensed to the number of COMPUTERs up to the issued license capacity as specified in the Customer invoice.

b) Customer shall use the SOFTWARE for internal purposes only.

c) Customer may not:

(i) modify, adapt, or translate, any copy of the SOFTWARE;

(ii) rent, lease, loan, or otherwise make available (including but not limited to via an application service provider or service bureau basis) any copy of the SOFTWARE;

(iii) electronically transmit the SOFTWARE over a network except as necessary for Customer’s licensed internal use of the SOFTWARE as specified in the product documentation;

(iv) use run-time versions of third-party products embedded in the SOFTWARE, if any, for any use other than the intended use of the SOFTWARE,

(v) modify, disassemble, decompile, or reverse engineer the SOFTWARE;

(vi) transfer possession of any copy of the SOFTWARE to another party; or

(vii) use the SOFTWARE in any way not expressly provided for in this Agreement.

2. Maintenance, Training, and Other Services.

a) Customer may purchase SOFTWARE support and updates in accordance with the SOFTWARE Maintenance Terms and Conditions attached as Attachment One.

b) If Customer purchases SOFTWARE support and updates for any licensed Caringo product then Customer must purchase SOFTWARE support and updates for all Caringo products licensed by the Customer.

3. Purchase, Payment, and Prices.

a) To make a purchase directly from Caringo, Customer will deliver a valid purchase order to Caringo for any SOFTWARE, services, or other products that Caringo may offer.

b) Invoices for license and/or service(s) fees shall be issued upon delivery of the SOFTWARE or services, unless specified herein to the contrary, and shall be due and payable in United States currency upon receipt by Customer via mail or email. Payment shall be overdue thirty (30) days after the delivery date specified on the invoice. Overdue payments shall be subject to a finance charge of one and one-half percent (1 1/2%) for each month or fraction thereof that the invoice is overdue, or the highest interest rate permitted by applicable law, whichever is lower. Please note that if SOFTWARE license is purchased through a third party, invoicing process may vary.

c) Delivery of SOFTWARE will be done electronically and deemed sent/e-mailed or made available via download. SOFTWARE shall be deemed accepted upon delivery. Customer will be deemed Importer of Record in any jurisdiction where SOFTWARE is being licensed and used.

d) Unless otherwise specifically stated, the prices stated in Caringo quotations are exclusive of any federal, state, municipal, value-added, foreign withholding or other governmental taxes, duties, fees, excises, or tariffs now or hereafter imposed on the production, storage, licensing, sale, transportation, import, export, or use of the SOFTWARE or any improvements, alterations, or amendments to the SOFTWARE. Customer shall be responsible for, and if necessary reimburse at any time, Caringo for all such taxes, duties, fees, excises, or tariffs, except for governmental or local taxes imposed on Caringo’s corporate net income.

4. Title to SOFTWARE.

Customer acknowledges that title to and ownership of the SOFTWARE will at all times remain with Caringo or licensors to Caringo of SOFTWARE being licensed or sublicensed to Customer hereunder. Customer shall include Caringo’s copyright or proprietary rights notice(s) on any copies of the SOFTWARE and/or associated documentation, including copyright or proprietary rights notices of third parties that are included on media or in documentation provided by Caringo. Customer acknowledges that the SOFTWARE (except certain open source components) is the property of Caringo or its licensors and that Customer’s limited license rights in and to the SOFTWARE may not be assigned, sub-licensed, or otherwise transferred for any reason without the prior, signed, written (not email), express consent of a Caringo corporate officer. For clarification purposes, Caringo SOFTWARE is licensed and not sold.

5. Warranty.

For Customers who have paid Caringo for SOFTWARE, Caringo warrants that the SOFTWARE will conform in all material respects to its then-current written specifications when properly installed on appropriate equipment and for ninety (90) days after delivery. For purposes of this Agreement, the sole source of such specifications shall be Caringo’s written user documentation. Customer will notify Caringo of any nonconformity within ten (10) days of the expiration of the warranty period. Where a material nonconformity exists within the warranty period and proper notice has been given to Caringo, Caringo will, as its sole and exclusive liability and remedy to Customer, use its commercial reasonable efforts to attempt to confirm, diagnose, and correct the particular nonconformity and provide Customer with one (1) copy of any such corrected version of the SOFTWARE, or, if Caringo is unable to correct such nonconformance(s) within a reasonable period of time, refund all license fees paid to Caringo for the SOFTWARE. Customer understands and agrees that THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND CARINGO EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT AND THAT THIS DISCLAIMER IS A MATERIAL PORTION OF THIS AGREEMENT WITHOUT WHICH CARINGO WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.

6. Limitation of Liability.

Customer agrees that Caringo’s liability to Customer or any third party under this Agreement or for any other reason relating to this Agreement or the products and services provided under this Agreement, including claims for contribution or indemnity, shall be limited to the amount paid to Caringo under this Agreement. CUSTOMER AGREES THAT IN NO EVENT SHALL CARINGO BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, DATA, EFFICIENCY, OR USE, EVEN DESPITE THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

7. Intellectual Property Indemnity.

For Customers who have paid Caringo for SOFTWARE, without modifying Section 6, Caringo will defend any action against Customer claiming that the SOFTWARE constitutes direct infringement of a duly issued United States patent issued prior to the Effective Date or United States copyright. Caringo shall indemnify Customer for any loss, cost, damage, or expense finally awarded against Customer by a court of competent jurisdiction as a proximate result of such infringement. Caringo’s obligations under this section are expressly conditioned upon Caringo having sole control of any such action, and upon Customer notifying Caringo immediately in writing of the claim and giving authority, information, and assistance necessary to settle and/or defend such claim. If the use of the SOFTWARE infringes or is enjoined, or Caringo believes that the SOFTWARE is likely to infringe or be enjoined, Caringo may, at its sole option, (i) procure for Customer the right to continue use of the licensed SOFTWARE as furnished, (ii) replace the licensed SOFTWARE, (iii) modify the licensed SOFTWARE to make it non-infringing, or (iv) terminate the license and refund the license fee for the SOFTWARE, less a proportional adjustment for the time the SOFTWARE was used by Customer, equal to the ratio of the time elapsed since the delivery date to five (5) years. The indemnity provided herein shall not apply if the alleged infringement arises from: (a) the use of other than a currently supported, unaltered release of the licensed SOFTWARE; (b) the use of SOFTWARE that has been modified or merged with any other program(s) by Customer; or (c) the use of the licensed SOFTWARE in combination with SOFTWARE or hardware not specifically permitted under this Agreement. The foregoing states Caringo’s entire liability for patent, copyright, or other proprietary rights infringement.

8. Confidentiality of SOFTWARE and Documents.

a) Customer shall not reproduce, duplicate, copy, sell, lease, or otherwise disclose, transfer, or disseminate the SOFTWARE, including operating instructions, user manuals, and training materials, in any medium except as authorized herein. Customer may make copies of the SOFTWARE, in machine readable form, only as is reasonably necessary for archival and backup purposes. Any such authorized copy shall contain all Caringo’s and any third party copyright/proprietary rights notices as specified in Section 4 above.

b) Customer agrees to use reasonable efforts not less than Customer exercises for its own confidential materials, to retain in confidence, and to require its employees (and any consultants who receive access) to retain the SOFTWARE in confidence, and will make no use of such information solely except under the terms and during the existence of this Agreement, and then only to the extent that such use is necessary to Customer’s employees (or consultants) to perform their employment. The terms of this section shall not apply to information that (a) was known to Customer prior to its receipt from Caringo; (b) is or becomes public knowledge without fault of Customer; (c) is acquired by the Customer from a third party with good legal title thereto and without obligation of secrecy; or (d) has been approved for release by Caringo’s written authorization.

c) The provisions of this Section shall survive the termination of this Agreement for a period of five (5) years. Notwithstanding the expiration of the obligation to exert the standard of care specified in this Agreement, Customer may not transfer SOFTWARE or information licensed hereunder to a third party.

d) Customer shall not release the results of any benchmark of the SOFTWARE, or of any third party products embedded in the SOFTWARE, without prior, written (not email), express approval of a Caringo corporate officer.

9. Term/Termination.

a) This Agreement is effective on the earlier of (i) the date of SOFTWARE delivery or (ii) the date the “I Accept” button is clicked during the registration process, and continues until terminated as provided herein, or by express written agreement of both parties.

b) Caringo may terminate this Agreement, effective on sending notice via email, upon:

(i) any material breach of this Agreement by Customer that is not cured within ten (10) days following written notice thereof;

(ii) Customer’s insolvency, bankruptcy, suspension of business, assignment of assets for the benefit of creditors, voluntary dissolution, or appointment of a trustee for all or any substantial portion of Customer’s assets; or

(iii) failure by Customer to pay license fees for SOFTWARE under the payment terms specified in this Agreement or as stated on Caringo’s invoice for such SOFTWARE.

c) In the case of annual or other periodic fees, Customer may terminate its rights by electing not to pay such fees, in which case this Agreement terminates on the last day of the last period for which Customer had paid such fees.

d) Upon termination, all licenses granted hereunder terminate and Customer will immediately destroy the SOFTWARE (and confirm same via written, signed certification of a Customer officer) and all copies in any form.

e) Sections 3 re Payment, 4 regarding Title to SOFTWARE, 6 regarding Limitation of Liability, 7 regarding Intellectual Property Indemnification, 8 regarding Confidentiality, and 10 regarding General items will survive the termination of this Agreement. All other rights and obligations of the parties will cease upon termination of this Agreement.

10. General.

a) Waiver/Amendment. No waiver, amendment, or modification of any provision of this Agreement shall be effective unless in writing and signed by the party against whom such waiver, amendment, or modification is sought to be enforced. No failure or delay by either party in exercising any right, power or remedy under this Agreement, except as specifically provided herein, shall be deemed as a waiver of any such right, power, or remedy.

b) Assignment. Either party may assign this Agreement to an entity acquiring substantially all of its assets or that merges with it, provided that such assignee agrees in writing to assume all obligations under this Agreement. Except as set forth above, neither party may assign any of its rights or delegate any of its obligations under this Agreement to any third party without the express written consent of the other. Subject to the above, this Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto.

c) Disputes. The rights of the parties hereunder shall be governed by the internal laws of the State of Texas without its conflict of law rules. Any suits brought hereunder shall be brought and heard solely in the federal or state courts in Austin, TX, and Customer admits the jurisdiction thereof.

d) Customer agrees that Caringo has the right to obtain injunctive and other equitable relief in any court of competent jurisdiction at any time. Customer acknowledges that the SOFTWARE contains trade secrets, the disclosure of which would cause substantial immediate harm to Caringo that could not be remedied by the payment of damages alone. Accordingly, Caringo will be entitled to preliminary and permanent injunctive relief and other equitable relief for any breach of Caringo’s intellectual property rights in the SOFTWARE.

e) Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect.

f) Export. Customer acknowledges that the laws and regulations of the United States and other countries restrict the export of the SOFTWARE and warrants that it will comply with all export control regulations of such countries. Customer agrees that it will not export or re-export the SOFTWARE in any form without first obtaining written approval from Caringo, and the appropriate United States and/or foreign government approvals.

g) Notice. Any notice, consent, or other communication hereunder shall be in writing, and shall be given personally, by FAX with receipt, certified return receipt requested postal mail, or by express delivery with receipt to either party at their respective addresses (email may be used for other, operational communications):

i) To Caringo at:

6801 North Capital of Texas Highway

Building 2, Suite 200

Austin, Texas 78731

ii) To Customer at:

Physical address and e-mail provided during CaringoConnect registration process

iii) or such other address as may be designated by written notice of either party. Notices shall be deemed given when delivered or transmitted, or seven (7) days after deposit in the postal mail.

h) Entire Agreement. This Agreement, including all Attachments hereto, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof and supersedes all proposals, oral, or written, all previous negotiations, and all other communications between the parties with respect to the subject matter hereof. The terms of this Agreement shall prevail notwithstanding any different, conflicting, or additional terms that may appear in any purchase order, email, or other Customer document or communication. All products and services delivered by Caringo to Customer are subject to the terms of this Agreement, unless specifically addressed in a separate agreement. In any action to enforce or interpret this Agreement, the prevailing party will be reimbursed all its attorneys’ fees and related costs.

i) “Phone Home” Capability. Caringo’s SOFTWARE may include a "phone home" feature which summarizes basic configuration and operational information and periodically sends this via the internet to Caringo. This information helps Caringo better plan our upcoming releases. The content transmitted contains no user-stored data - only information about the health and configuration of the SOFTWARE. Customer acknowledges and accepts this feature as part of this Agreement.

j) Open Source. The SOFTWARE may contain open source components, which are provided under the terms of their respective licenses, which are included in the product units and product documentation. Caringo will ship open source (e.g., GPL-covered) source code after receiving written request specifying the code being sought is accompanied by prepayment (check on U.S. bank or money order) for $55, to cover shipping and handling, provided Customer specifies the physical address for our shipping Customer a CD.

Attachment One to Caringo End User SOFTWARE License Agreement

These SOFTWARE Maintenance Terms and Conditions are between you (either an individual or a single entity) ("Customer") and Caringo Inc. ("Caringo"), a Corporation under the laws of Delaware, located at 6801 North Capital of Texas Highway, Building 2, Suite 200, Austin, Texas 78731, for the SOFTWARE Maintenance that may be supplied by Caringo.

1. SOFTWARE Maintenance.

Caringo agrees to provide Customer with annual SOFTWARE maintenance subject to the following provisions and conditions:

a) If Customer purchases SOFTWARE support and updates for any licensed Caringo product then Customer must purchase SOFTWARE support and updates for all Caringo products licensed by the Customer.

b) SOFTWARE maintenance shall be provided during the maintenance term paid for, which may be updated from time to time. SOFTWARE provided by Caringo but for which Caringo does not provide maintenance will be specifically identified.

c) SOFTWARE maintenance shall include (i) web-based support provided during Caringo's normal working hours, and (ii) Minor and Major Releases containing improvements or modifications to the SOFTWARE, where such improvements or modifications are not priced as separate new products or options.

d) SOFTWARE maintenance shall also include, at Caringo’s sole option, Patch Releases, which are intended to address material deviations between the SOFTWARE and its published specifications until a Minor or Major Release can be made available.

e) Caringo shall not be responsible for maintaining SOFTWARE that fails to comply with its published specifications if such non-compliance is the result of: (i) modification of the SOFTWARE by Customer or third parties , (ii) use of the SOFTWARE with non-Caringo SOFTWARE not covered under Caringo's SOFTWARE Maintenance Terms and Conditions (iii) use of the SOFTWARE on unsupported platforms, configurations or environments (iv) changes to agreed configurations or uses that are required to ensure proper operation in the customer environment without consulting Caringo or (v) diagnosing and troubleshooting non-Caringo hardware and/or network infrastructure (e.g. faulty switch configurations, etc.). If Caringo expends its time on a noncompliance found to be the result of any of the preceding, Customer shall pay Caringo for such time at Caringo's then-current hourly consulting rate.

f) Customer agrees to provide Caringo with timely written notification containing complete details of SOFTWARE problems using a standard format defined for such purpose by Caringo. Customer agrees to cooperate fully in providing Caringo with Customer's source code, in machine-readable form, and other materials necessary to reproduce a reported SOFTWARE problem. Subject to Customer's security requirements, Customer agrees to provide Caringo reasonable direct or remote access and test time on Customer's Caringo system, for the purpose of documenting, diagnosing, testing the repair(s), and/or documenting such reported SOFTWARE problems. Customer acknowledges that if remote access and test time cannot be provided, Caringo may not be able to, and will not be obligated to resolve the problem.

g) Customer shall designate one or, with Caringo's prior written approval, more than one Support Contact Person, who shall be responsible for communicating support issues to Caringo. The designated customer representatives must have completed training using the online Caringo connect training materials or through attending a training class.

h) Customer agrees to install, or arrange for installation of each new Major Release promptly after receipt. Caringo agrees to provide SOFTWARE maintenance for any Major Release until ninety (90) days after shipment of the subsequent Major Release. Customer may install Patch Releases and Minor Releases at Customer's option; Caringo agrees to provide SOFTWARE maintenance for any Patch Release and Minor Release only while SOFTWARE maintenance is available for the Major Release on which such Patch Release or Minor Release is based.

i) If deviations between the SOFTWARE and its published specifications are the result of errors in the published specifications and not in the SOFTWARE, corrections to the published specifications will be provided to Customer as timely as commercially reasonable.

2. Terms and Termination.

a) If not terminated as specified below and the SOFTWARE maintenance was ordered directly from Caringo, the SOFTWARE maintenance will automatically be renewed for successive one-year periods at Caringo’s then current prices for SOFTWARE maintenance. Either party may terminate maintenance at any time by giving the other party ninety (90) days prior written notice.

b) In the event of termination of the Agreement, maintenance of the SOFTWARE will be automatically terminated and all fees or charges due under this Agreement shall be immediately due and payable without notice.

3. Travel Expenses.

a) Customer agrees to reimburse Caringo for all travel-related expenses for travel incurred at Customer’s prior written request, including travel to and from Customer’s site, lodging, meals, telephone, and shipping of materials, as may be necessary in connection with duties performed under these Terms and Conditions.

4. Payment, Prices.

a) Annual SOFTWARE maintenance is not free and fees are due and payable in advance; in all other respects payments are subject to the terms and conditions of the Agreement.

b) Pricing of SOFTWARE maintenance is specified for each item of SOFTWARE in price quotes made by Caringo to Customer unless provided to Customer by an authorized third party. Upon annual renewal, prices may be adjusted to reflect Caringo's then-current SOFTWARE maintenance prices for the SOFTWARE.

c) Upon mutual agreement, maintenance fees may be prorated, based on annual rates, for specific maintenance terms other than for one year.

d) If Customer initially declines SOFTWARE maintenance and then subsequently elects to commence maintenance, or if maintenance for an item of SOFTWARE is discontinued at Customer’s request and then subsequently renewed, Customer shall pay the maintenance fees that would have been due for the period during which maintenance was not provided.

5. Warranty.

a) Caringo warrants that each Major Release of the SOFTWARE will conform in all material respects to its written specifications when properly installed on appropriate equipment and for ninety (90) days thereafter. Where a material nonconformity exists within the warranty period, and proper notice has been given to Caringo, Caringo will, as its sole and exclusive liability and remedy to Customer, use its commercial reasonable efforts to attempt to confirm, diagnose, and correct the particularly nonconformity and provide Customer with one (1) copy of any such corrected version of the SOFTWARE, or, if Caringo is unable to correct such nonconformance(s) within a reasonable period of time, refund the most recent maintenance fee paid to Caringo. Customer understands and agrees that THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND CARINGO EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT AND THAT THIS DISCLAIMER IS A MATERIAL PORTION OF THIS AGREEMENT WITHOUT WHICH CARINGO WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.

6. Limitation of Liability.

a) Customer agrees that CARINGO'S LIABILITY TO CUSTOMER OR ANY THIRD PARTY UNDER THIS AGREEMENT OR FOR ANY OTHER REASON RELATING TO THE SUBJECT SOFTWARE OR ANY SERVICES PROVIDED HEREUNDER, INCLUDING CLAIMS FOR CONTRIBUTION OR INDEMNITY , SHALL BE LIMITED TO THE SOFTWARE MAINTENANCE FEE FOR 1 YEAR PAID FOR THE SOFTWARE THAT IN NO EVENT SHALL CARINGO BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, DATA, EFFICIENCY, OR USE, EVEN DESPITE THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

Exhibit A to Attachment One

 

Caringo Maintenance and Support Services

Business Hours are defined as from 9am until 5pm Central European Time or from 9am until 5pm US Central Time on non-holiday weekdays. Support Services are available only during Business Hours unless after-hours emergency support has been purchased at additional cost.

Problems reported to Caringo will be assigned a priority as follows:

Priority 1 (Urgent): An issue with Customer’s Production environment where (i) important functions of the Software are unavailable, or (ii) the Software suffers from a complete or significant loss of service, or (iii) real or perceived data loss is causing the Software to become unusable, or (iv) Customer’s application has become unusable in some way related to the Software.

Priority 2 (High):  The system is still performing and supporting the business needs.   There might be some functional impact, but system is up and running.  If system is not meeting business requirements, it would be “Priority 1” Assigned to an issue where (i) the functionality of the Software is affected, but can be circumvented, or (ii) certain functions within the Software are disabled or degraded, but the application remains operable.

Priority 3 (Normal): An issue that results in some business impact for the Customer. Assigned to an issue where (i) partial non-critical functionality loss where the issue has a minor effect on the usability of the Software.

Response and Resolution Times

Priority

Initial Response

Engagement

Priority 1 (Urgent)

1 Business Hour (or one hour if after-hours emergency access purchased)

Continuous engagement during Business Hours (and after hours if after-hours support purchased) by Caringo Support as needed to diagnose and resolve issue.

Priority 2 (High)

2 Business Hours

Engagement as needed by Caringo Support during Business Hours.

Priority 3 (Normal)

1 Business Day

Engagement by Caringo Support as needed for prompt resolution.

Phone Home Capability

Support telemetry (“phone home” information, also known as “health reports”) from Caringo software installed at Customer site is essential for effective support. If this is not available, response and resolution will be delayed.

Proactive Monitoring

Customer may optionally purchase a proactive monitoring service. If purchased, Caringo Support will review health reports (“phone home” information) each Business Day and will notify Customer immediately of items needing attention. This service requires that health report transmission be enabled on the Customer cluster and that outbound internet connectivity be available.

Proactive Monitoring Services:

At least once each business day, Caringo Support will review health reports from each customer cluster which is sending health reports and for which monitoring has been purchased.

Items reviewed to include but not limited to:

  • Physical and license capacity issues (including early warnings as thresholds are approached)

  • Errors and warnings

  • Health processor progress

  • Recoveries and other indications of volume failures

Customer technical contact (who must be identified in advance) will be notified immediately if any issues requiring attention are detected. Technical contact will also be notified of trends requiring eventual attention. For example: "Network histograms on the 10.22.124.3 chassis are unusually long and may result in dropped packets. Please check network switch configuration and connectivity."