Scality Terms & Conditions

Effective starting: November 13th, 2024

SOFTWARE LICENSE

All software (Software) identified in an order form (Order), which may be provided in paper or via electronic means, that is executed by either (a) an authorized distributor (Distributor) on behalf of Scality (Licensor), or by Licensor, and (b) the party who is entitled to use the software (Licensee) are licensed (and not sold) in accordance with the Order and this EULA. Distributors must be authorized by Licensor to distribute the Software for this License to be valid. This EULA is incorporated by reference into each Order. An Order may establish prices and volume/metrics of licensed Software but may not modify this EULA unless the Order expressly states that the Order terms supersede this EULA, and such provision is separately signed by Licensor. Licensor owns and retains the exclusive right, title and interest, including intellectual property rights, in the Software and Software documentation and all Software and Software documentation and copies made thereof are licensed, not sold.

LICENSE TYPES

The Software may be licensed as a Free License, Hardware License, Perpetual License, or as a Term License. A Free License is subject to the special terms and conditions in the section “FREE LICENSE TERMS AND CONDITIONS” below. A Hardware License means a license to the Software that is tied to a given hardware device for the usable storage capacity (as defined below) of the device measured in terabytes as specified on an Order and licensed for use on that device for the life of that device. A Perpetual License means a perpetual license to use a particular version of the Software for a specified usable storage capacity (HDD and SSD) measured in terabytes as specified on an Order. A Perpetual License does not terminate (unless Licensee breaches this EULA, any Order or any other agreement with Licensor) and is not tied to a specific hardware device, however, unless Licensee also purchase maintenance and support, does not include updates or upgrades to the Software after the end of any paid-up maintenance and support period. A Term License means a fee based license to use the Software for a specific period of time or for a specific usable storage capacity, or both, as set forth on the Order. In this EULA, the term “Commercial License” means a Hardware License, Perpetual License or a Term License.

LICENSE TERMS

Unless Licensee breaches this EULA or the Order and Licensor terminates this EULA and/or an Order, Licensor grants Licensee a worldwide, limited, non-exclusive, non-transferable and non-sublicensable:
For a Hardware License: perpetual license to use the object code version of the Software on the designated hardware in the Order, for up to the usable storage capacity specified on the Order, at the location(s) set forth on the Order.
For a Term License: during the period of time set forth on an Order, license to use the object code version of the Software for up to the usable storage capacity identified on the Order Form (if the Order fails to specify a specific amount of storage the storage limit shall be one terabyte) at the location(s) set forth on the Order.
Licensee is also licensed to use and make internal copies of all Software documentation provided by Licensor solely in connection with the use of the Software as authorized above. Licensee may make internal copies of the Software solely for backup and restoration purposes but may not use such copies of the Software for live or production use, or any direct or indirect use of the Software which is in live or production use or serving its final or intended or revenue generating purpose (Production Use).
“usable storage capacity” is calculated by dividing total raw capacity used for storing data (which the total capacity of disks used to store data) by the data protection overhead ratio required to protect data on such hardware per the attached formula:
Usable storage capacity = (raw storage used to store data) / (data protection overhead ratio).
For example, for a storage with 120 disks of 20TB and ARC 9+3 :
– raw capacity is 120*20=2400TB
– data protection overhead = 12/9 = 1.33
– usable storage capacity = 2400/1.33 = 1800TB

Licensee may only use the Software on operating systems listed on the Licensor website at www.scality.com as compatible with the Software.

FREE LICENSE TERMS AND CONDITIONS

Licensor may grant the right to use the Software without a fee for defined amount of usable storage capacity as defined above (the “Free Tier”). Any Free Tier will be set forth on Licensor’s website. The amount of usable storage capacity in a Free Tier may be used on only one hardware or virtual instance and may not be spread across multiple hardware or virtual instances. Licensor may change the amount of usable storage capacity for the Free Tier at any time, including terminating the Free Tier completely. While Licensee may use the Free Tier in regular production, Licensee acknowledges Licensor’s right to change or terminate the Free Tier program. If Licensor makes a change to the Free Tier, any fees and charges for use of the Software shall only accrue for the time period after the date Licensor makes the change and publishes such modification on its website. Licensor may at any time request a Licensee using the Free Tier to confirm that their usable storage capacity is at or below the then current Free Tier level, and/or to confirm their total usable storage capacity over a span of dates. Licensee shall promptly and accurately confirm its usable storage capacity for such periods requested, and if Licensor has enabled such functionality in the Software, promptly provide Licensor with any usable storage capacity reports enabled in the Software.

THIRD PARTY SOFTWARE

Licensor may distribute software owned by third parties (Third Party Software) with the Software. Third Party Software may be subject to other license terms. To the extent Licensor has the right to distribute such Third Party Software, Licensor grants Licensee all of the rights the Licensor has to Third Party Software for use in connection with the Software. Third Party Software that is not embedded into the executable Software image provided by Licensor is not “Software” in this EULA.

LIMITATIONS

Except to the extent expressly licensed as provided in this EULA and an Order, Licensee may not directly, or indirectly through another, reproduce, modify, translate or otherwise create derivative works from, rent, lease, loan or otherwise distribute, copy, decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, processes or algorithms by any legal or technical means whatsoever, in respect of all or any part of the Software, Software documentation or Licensor’s Confidential Information (defined below). Licensor reserves all rights to the Software, Software documentation and Licensor Confidential Information not expressly granted herein or in an Order.

OTHER RESTRICTIONS

Unless otherwise stated in an Order or approved by Licensor in writing, Licensee may not directly or indirectly through or with another: (i) move the Software to a location other than the location set forth on the initial Order; (ii) publish or disclose any features, functionalities, attributes, results of any test or benchmarking or comparative study of, the Software or documentation or use such results or information for any software development activity; (iii) remove any product identification, proprietary, copyright or other notices contained in the Software or documentation; or (iv) use the Software on any hardware or systems environment other than those listed on the Licensor website at www.scality.com as compatible with the Software.

UPDATES AND UPGRADES

Software includes patches, updates, improvements, additions, enhancements and other modifications that may subsequently be made available to Licensee to the extent provided in an applicable Order for maintenance and support services for Commercial Licenses. Licensor makes no commitment to update, upgrade or provide support for Free Licenses. Unless otherwise provided in an Order for maintenance and support services, Licensor may determine that it will not support a particular version of Software licensed on a Commercial License basis with at least one year’s prior notice to Licensee. Acceptance and implementation of any updates and/or upgrades provided by Licensor are compulsory and may not be refused by Licensee.

ADDING STORAGE CAPACITY

Licensee shall notify Licensor of any planned increases in usable storage capacity on a Commercial License to be added to an Order before such usable storage capacity is added. Licensee shall also notify Licensor of any planned increases in usable storage capacity on a Free License where that increase will exceed the then applicable Free Tier, before such usable storage capacity is added. Licensor shall generate an Order based on such notice. Licensee shall be responsible for the Fees (at Licensor’s standard rates, if none are set forth in an Order) for such added usable storage capacity from the date of such addition regardless of whether it has notified Licensor. Licensee will provide Licensor a report of the actual usable storage capacity of the Licensee system on a quarterly basis, including a report on the new hardware introduced during the previous quarter. Licensor will “true up” accordingly the license Fees which are due on that basis and will invoice the Licensee as necessary. If a given storage device containing the Software that is licensed on a Hardware License basis is decommissioned and replaced by a new device Licensee would be required to purchase a new Hardware License for the new device.

FEES (when applicable)

This section does not apply to Orders received by the Licensor from a Third-Party (including but not limited to authorized Reseller, authorized Distributor).
Licensee shall pay to Licensor all amounts set forth in an Order in the times provided in such Order (Fees) or if no time is stated, within thirty (30) calendar days after date of an invoice issued by Licensor or a Distributor. Licensee will pay a late payment interest equal to the European Central Bank main refinancing operations rate plus ten (10) basis points per annum, on all late payment, a flat rate recovery cost in the minimum amount of €. 40 per unpaid invoice, and all other costs related to Licensor’s successful collection efforts. If Licensee fails to pay any undisputed amount when due, then in addition to assessing interest and other fees above Licensor may (a) by written notice to Licensee terminate any or all Licenses until paid; (b) suspend some or all services until paid, including maintenance and support services (including any dedicated care services); and/or (c) require reasonable payment assurances in a form satisfactory to Licensor.

TAXES (when applicable)

This section does not apply to Orders received by the Licensor from a Third-Party (including but not limited to authorized Reseller, authorized Distributor).
All amounts payable exclude all applicable value added, sales, use and other taxes and all applicable export and import fees, customs duties and similar charges. Licensee is responsible for payment of all such taxes (other than taxes based on Licensor’s income), fees, duties and charges, and any related penalties and interest, arising from the grant of the license herein and or the receipt of services from Licensor. Licensee will make all payments free and clear of and without reduction for any withholding taxes. If Licensee has an obligation to withhold any amounts Licensee will gross up the payments so that Licensor receives the amount actually quoted and invoiced. If Licensor has a legal obligation to pay or collect taxes for which Licensee is responsible under this section, the appropriate amount shall be invoiced to and paid by Licensee, unless Licensee provides Licensor with a valid tax exemption certificate authorized by the appropriate taxing authority.

DISPUTED INVOICES (when applicable)

This section does not apply to Orders received by the Licensor from a Third-Party (including but not limited to authorized Reseller, authorized Distributor).
If made in good faith, Licensee may dispute any amount owed so long as Licensee provides a written notice of the dispute by the due date of the invoice, including a detailed explanation of the basis for Licensee’s dispute, timely pays the undisputed portion of the invoice, and Licensee diligently works with Licensor to resolve the dispute. Properly disputed amounts are not subject to the interest and other late charges in the Fees section above, provided any amounts resolved to be due are paid within 15 calendar days of such determination. Licensee may not dispute more than three (3) months or 20% of all then outstanding invoices, whichever is greater; if Licensee does, then such failure to pay is a material breach of this EULA by Licensee.
Failure to dispute an invoice is not a waiver of any other rights in this EULA.

AUDIT

For the term of this EULA and all applicable Orders and one (1) year thereafter, (a) Licensee will maintain all books, records, contracts and accounts relating to its use of the Software, the receipt of Services, its payment of Fees and general compliance under this EULA and applicable Orders, and (b) Licensor will have the right, at its own expense and under reasonable conditions of time and place, to audit and copy any or all of such records; provided however, that in no event shall Licensor be permitted to engage in more than two (2) audits in any given calendar year. If any such audit discloses a breach of this EULA and applicable Orders or underpayment of any amounts by Licensee or its employees or agents, Licensee will, in addition to such other rights and remedies as may be available to Licensor as the result of such breach, pay to Licensor the reasonable cost of such audit and copying. Licensor will use information obtained from such audit only to verify and enforce Licensee’s compliance with the terms of this EULA and applicable Orders, to comply with any governmental reporting requirements and for such other purposes as required by law.

CONFIDENTIALITY

Each Party acknowledges that it may be furnished, receive or otherwise have access to information that is of a confidential, proprietary, or trade secret nature furnished or disclosed by one Party (the “Discloser”) to the other Party (the “Recipient”) under this EULA and applicable Orders, including information exchanged in contemplation of entering into this EULA and applicable Orders (Confidential Information) of the other Party in connection with this EULA and applicable Orders which shall remain the property of the Discloser. Each Party agrees that Confidential Information received from the other Party: (a) will only be used as necessary to achieve the purposes and objectives of this EULA and applicable Orders; (b) will not be disclosed to any third party without prior written approval of Discloser; (c) may only be disclosed within the receiving organization on a “need-to-know” basis to persons who have been advised of the existence of this EULA and applicable Orders and agree to be bound by its terms; and (d) will be treated with at least the same degree of care as Recipient treats its own Confidential Information, but in no event with less than a reasonable degree of care. Recipient will notify Discloser promptly of any unauthorized use or disclosure of Confidential Information and cooperate with and assist Discloser in every reasonable way to stop or minimize such unauthorized use or disclosure. Notwithstanding the above Confidential Information will not include information that: (i) is or becomes known to the public without breach of this EULA and applicable Orders by Recipient; (ii) is already known to or in the possession of Recipient at the time of disclosure; (iii) is independently developed by or for Recipient as evidenced by Recipient’s own files and records; (iv) is rightfully obtained by Recipient from a third party that was lawfully in possession of the information and had the right to disclose the same; or (v) the Parties mutually agree in writing to release from the terms of this EULA and applicable Orders. Confidential information will not be deemed to be publicly known merely because all or a portion of such information is embodied in general disclosures or because individual features and/or components (or the combination of such features and components) are or become known to the public. A Party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law or the requirements of the Securities and Exchange Commission (“SEC”) pursuant to the rules and regulations promulgated by the SEC, as well as to the New York Stock Exchange and any other regulator charged with the administration, oversight or enforcement of regulations applicable to any business conducted by Licensor, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order or otherwise maintain the confidentiality of the information to be disclosed; or (b) to establish a Party’s rights under this EULA and applicable Orders, including to make such court filings as it may be required to do.

LICENSOR WARRANTIES; REMEDY

With respect to a Commercial License, Licensor represents and warrants that the Software will conform in all material respects to the Software documentation for a period of ninety (90) days after the Software is delivered to Licensee pursuant to this EULA and applicable Orders, provided that such warranty will not apply to failures to conform to the Software documentation to the extent such failures arise, in whole or in part, from (a) any use of the Software other than in accordance with the Software documentation, (b) modification of the Software by Licensee or any third party, (c) non acceptance/implementation of any update/upgrade by Licensee, or (d) any combination of the Software with software, hardware or other technology not provided by Licensor under this EULA and applicable Orders or specified by Licensor to work with the Software. For all warranty claims made by Licensee during the warranty period, Licensor will use commercially reasonable efforts to resolve, at no charge to Licensee, any such nonconformities. This is Licensee’s sole and exclusive remedy for a breach of this warranty, except to the extent provided in an Order. LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES IN RESPECT OF FREE LICENSES.

DISCLAIMER

EXCEPT AS EXPRESSLY WARRANTED IN THIS EULA, THE SOFTWARE, AND ANY OTHER MATERIALS (INCLUDING THIRD PARTY SOFTWARE) AND/OR SERVICES PROVIDED BY LICENSOR ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND LICENSOR AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF QUIET ENJOYMENT, ACCURACY OF DATA, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. NO WARRANTY IS MADE BY LICENSOR ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES PROVIDED UNDER THIS EULA WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

TERM AND TERMINATION

This EULA is effective on the date the first Order referencing this EULA is executed by the Parties and will terminate on the earlier of termination as provided below, or the last date the last Order term ends. A Party may terminate this EULA and applicable Orders if the other Party is in material breach of any obligation under this EULA and applicable Orders and fails to remedy such failure or breach within thirty (30) days after receipt of written notice of such breach from the non-breaching Party, including, but not limited to failure to timely pay the Fees. If this EULA and applicable Orders are terminated by either Party, or otherwise expires, then (a) within ten (10) days of the effective date of termination or the date of expiration, as applicable, Licensee will certify in writing to Licensor that the Software and all other Confidential Information in the possession of Licensee have been destroyed; (b) any License rights granted by Licensor under the applicable Order will immediately terminate as of the effective date of termination or the date of expiration, as applicable; (c) Licensee will promptly pay all unpaid amounts accrued under the terminated or expired Order; (d) each Party shall return or destroy all Confidential Information of the other Party in its possession; and (e) Licensor will have no further responsibility or liability thereunder as of the effective date of termination or the date of expiration, as applicable. Notwithstanding the above, unless the term was terminated for Licensee’s material breach, Hardware Licenses shall continue solely for the licensed devices in the amount of licensed usable storage capacity. Notwithstanding the above, a Free License may be terminated at any time by Licensor, with notice (email suffices) to Licensee.

INDEMNITY

With respect to Commercial Licenses Licensor shall defend, indemnify, and hold Licensee harmless against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities awarded to a third party arising out of any claim by a third party that the Software as delivered by Licensor infringes or misappropriates, as applicable, any U.S. or French patent issued as of the effective date of the applicable Order, or any copyrights or trade secrets under applicable laws of any jurisdiction within the United States or within France. Notwithstanding the foregoing, Licensor shall have no obligation or liability to the extent that the alleged infringement arises from (1) the combination, operation, or use of the Software with products, services, information, materials, technologies, business methods or processes not furnished by Licensor or specified in the Software documentation; (2) modifications to the Software, which modifications are not made by Licensor; (3) failure to use updates to the Software provided by Licensor; (4) misuse of the Software or use of the Software except in accordance with the Software documentation; or (5) breach of confidentially provisions herein (circumstances under the foregoing clauses (1), (2), (3), (4), and (5), collectively, “Licensee Indemnity Responsibilities”). Upon the occurrence of any claim for which indemnity is or may be due by Licensor, or in the event that Licensor believes that such a claim is likely, Licensor may, at its option (i) appropriately modify the Software so that it becomes non-infringing, or substitute functionally equivalent software or services; (ii) obtain a license to the applicable third-party intellectual property rights; or (iii) terminate this EULA and applicable Orders on written notice to Licensee and refund to Licensee any unused prepaid license Fees under the then current Order Term(s). The obligations set forth in this section constitute Licensor’s entire liability and Licensee’s sole remedy for any actual or alleged infringement or misappropriation.
Licensee shall indemnify, hold harmless, and defend Licensor from and against all losses, expenses (including reasonable attorneys’ fees), damages, and liabilities awarded to a third party resulting from a claim by a third party arising from or in connection with the Licensee Indemnity Responsibilities.
Each party (as the indemnitee) agrees to give the other Party (as the indemnitor) (a) prompt written notice of such claim; (b) sole authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as may reasonably be requested, at the indemnitor’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, the indemnitor shall not settle any third-party claim unless such settlement completely and forever releases the indemnitee with respect thereto or unless the indemnitee provides its prior written consent to such settlement. The indemnitee may participate in such defense at its own expense by counsel of its choice. For the avoidance of doubt, Licensor does not agree and will not indemnify Licensee in respect of any Free License.

LIMIT OF LIABILITY

With respect to Commercial Licenses Licensor will be liable to Licensee (or any affiliate of Licensee) only for the amount of Licensee’s actual direct damages, not to exceed (in the aggregate for all claims) the amount paid by Licensee to Licensor for the specifically deployed Software that caused the liability and is the subject of the claim. For the avoidance of doubt, Licensor will not be liable in damages for any claim arising from any use of a Free License by Licensee; Licensee’s sole and exclusive remedy for any claim relating to a Free License is to terminate use of the Software licensed under the Free License. In no event will Licensor’s aggregate liability for all claims arising under or relating to any single Order exceed the total amount paid to Licensor by Licensee pursuant to such Order for the twelve (12) months prior to month in which the event giving rise to liability occurred under such Order. EXCEPT WITH RESPECT TO (A) BREACHES OF LICENSEE’S OBLIGATIONS SET FORTH IN THE SECTION “CONFIDENTIALITY” AND THE SECTION “INDEMNITY”; AND (B) DAMAGES ATTRIBUTABLE TO LICENSEE’S MISAPPROPRIATION, VIOLATION OR INFRINGEMENT OF LICENSOR’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY, OR LICENSOR’S SUPPLIERS, BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, DAMAGES RESULTING FROM LOSS OF DATA, SECURITY BREACH, PROPERTY DAMAGE, LOST REVENUE, LOST SAVINGS OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH THIS EULA, THE PERFORMANCE OF THE SOFTWARE OR LICENSOR’S PERFORMANCE OF SERVICES OR OF ANY OTHER OBLIGATIONS RELATING TO THIS EULA, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The limitations of liability set forth in this Section will survive and apply notwithstanding the failure of any limited or exclusive remedy for breach of warranty set forth in this EULA and applicable Orders.

APPLICABLE LAW

For End-users based in the United States of America :
This EULA and all Orders will be governed by the laws of the United States and the State of California, without regard to any provision of law that would require or permit the application of the substantive law of any other jurisdiction. Those ARTESCA License and support Terms & Conditions and all Orders will not be subject to (a) the United Nations Convention on Contracts for the International Sale of Goods; or (b) any version of the Uniform Computer Information Transactions Act (UCITA) as it is, or may be, adopted in any state. The Parties hereby irrevocably consent to the exclusive personal jurisdiction and venue of the federal and state courts located in the State of California, including in case of claim from third parties. The Parties expressly waive any right to a trial by jury in any claim between them, whether arising hereunder, or in tort or under applicable statutory or regulatory law.

For End-users based in other regions (ROW) :
This EULA and all Orders will be governed by the laws of France, without regard to any provision of law that would require or permit the application of the substantive law of any other jurisdiction. Those ARTESCA License and support Terms & Conditions and all Orders will not be subject to the United Nations Convention on Contracts for the International Sale of Goods; or any other Law/regulation, as it may be adopted in any other jurisdiction. The Parties hereby irrevocably consent to the exclusive jurisdiction of the Paris Courts, including in case of claim from third parties. The Parties expressly waive any right to a trial by jury in any claim between them, whether arising hereunder, or in tort or under applicable statutory or regulatory law.

COMPLIANCE WITH LAWS

Each Party will perform its obligations and exercise its rights in a manner that complies with all applicable laws. Licensee covenants to obtain all permits, licenses and other consents necessary for the installation, importation, use and exercise of other rights granted to it herein.

PERSONAL DATA PROTECTION

In the course of its activity, Licensor may be required to collect and process or sub-process the personal data of the Licensee or the Licensee’s customers (hereafter referred to as the “Users”).
Licensor attaches particular importance to the respect for the privacy of the Users and of the confidentiality of their personal data, and is thus committed to processing or sub-processing the data in compliance with the applicable laws and regulations, and in particular Law No. 78-17 of 6 January 1978 relating to Information Technology, Data Files and Civil Liberties, and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (hereafter referred to as the “GDPR”).

PRODUCT USAGE DATA

Licensor may collect and analyze data regarding Licensee’s use of the Software, excluding any personal data (“Product Usage Data”). Licensor may use this information for its own business purposes, including to maintain, operate, and improve the Software, monitor and analyse activities in connection with the Software, as well as to create anonymized statistics for Licensor’s own marketing purposes or improve Licensee’s journey. Collected Licensor metrics include amongst others Bandwidth, IOPS, Latencies, Log files (which are only collected when the global all logs or PluginOpt scality_ctdb.logs are enabled). To access the full list of Collected Scality metrics click on the following link. Licensor will implement reasonable technical and organizational safeguards designed to protect Product Usage Data against unauthorized loss, destruction, alteration, access, or disclosure, and Licensor will not access or use Product Usage Data except as necessary to achieve aforementioned goals.

GENERAL

This EULA, and each Order constitute the entire agreement between the Parties and supersedes all other prior or contemporaneous communications between the Parties (whether written or oral) relating to the subject matter of this EULA and applicable Orders. This EULA and all Orders may be modified or amended solely in a writing signed by both Parties. Licensee may not assign or otherwise transfer any right or obligation set forth in this EULA or any Order without Licensor’s prior written consent, which consent shall not be unreasonably delayed, conditioned or withheld. Any purported assignment in violation of the preceding sentence will be void. This EULA and all Orders will be binding upon the Parties’ respective successors and permitted assigns. This EULA and each order have been mutually negotiated and are deemed to have been prepared at arm’s length at the joint direction and construction of the Parties and is to be interpreted in accordance with its terms without favor to either Party. Any notice hereunder will be in writing and sent by electronic mail, provided any notice the failure to respond to of which would result in a termination of this EULA or an Order will be delivered by reliable overnight courier, signature required. Notices shall be in English and will be deemed given on the earlier of the date of actual receipt without rejection by an email system, or the date recorded as delivered by the overnight courier. All notices will be sent to the other Party at its address as set forth in the Order. Each party consents to receive communications from the other electronically. The Parties agree that all agreements, notices, disclosures and other communications that are provided electronically satisfy any legal requirement that such communications be in writing. The provisions of this EULA and applicable Orders will be deemed severable, and the unenforceability of any one or more provisions will not affect the enforceability of any other provisions. In addition, if any provision of this EULA and applicable Orders, for any reason, is declared to be unenforceable, the Parties will substitute an enforceable provision that, to the maximum extent possible under applicable law, preserves the original intentions and economic positions of the Parties. No failure or delay by a Party in exercising any right, power or remedy will operate as a waiver of that right, power or remedy, and no waiver will be effective unless it is in writing and signed by the waiving Party. If a Party waives any right, power or remedy, the waiver will not waive any successive or other right, power or remedy the Party may have under this EULA and applicable Orders. This EULA and applicable Orders do not confer any benefit, right or privilege in any person or entity not a party to this EULA and applicable Orders. Licensee grants Licensor the right to (a) identify Licensee as a customer of Licensor, and (b) use Licensee’s name, mark and/or logo on Licensor’s website and/or in Licensor marketing materials. Except for the obligations related to Confidential Information, License rights and restrictions, and payment, neither Party is responsible for any failure to comply with the terms of this EULA and applicable Orders or any Order where the failure or delay is due to causes beyond the reasonable control of the Party. The relationship established by this EULA and applicable Orders is solely that of a licensor and licensee, and each Party will act at all times as an independent party for its own account. Neither Party may represent or hold itself out as an agent or representative of the other. Neither Party has any authority to, and is expressly prohibited from, creating or assuming any obligation on behalf of the other, and from otherwise making or extending any representation, warranty, guarantee or other commitment for or on behalf of the other. The terms set forth in the sections entitled LIMITATIONS, OTHER RESTRICTIONS, FEES (to the extent not paid at the end of the Term), AUDIT (for the period stated), CONFIDENTIALITY, DISCLAIMER, TERM AND TERMINATION, INDEMNITY, LIMIT OF LIABILITY, APPLICABLE LAW, COMPLIANCE WITH LAWS and GENERAL survive any termination or expiration of this EULA and applicable Orders.

EXHIBIT 1

SCALITY MAINTENANCE AND SUPPORT SERVICES
TERMS AND CONDITIONS (M&S Terms)

These M&S Terms are made under an Order between the Licensee and Licensor that incorporates an End User Software License Agreement (EULA) and describe the level of standard maintenance and support (M&S) services provided by Licensor as to the Software identified in the Order for M&S services. Capitalized terms not defined here are defined in the EULA and incorporated herein.
In consideration of payment of the Fees in the applicable Order for M&S services, and provided Licensee is not in breach of the EULA or any Order, Licensor agrees, during the term of the Order for M&S services, as follows:

SOFTWARE ERROR CORRECTIONS

Licensor will use commercially reasonable efforts to adapt, reconfigure or reprogram the Software, as applicable, to correct any material nonconformity of the Software with the Software documentation (Error(s)) reported to Licensor by Licensee, in a reasonable time in light of the severity of the Error, provided that if such Error is the result of errors or misstatements in the Software documentation, Licensor may correct such non-conformity by amending the Software documentation (Error Correction).

WORKAROUND

If Licensor is unable to complete an Error Correction, Licensor will use commercially reasonable efforts within a reasonable time in light of the severity of the Errors, to develop procedures or routines which, when employed in the regular operation of, or access to, the Software, will avoid or substantially diminish the practical adverse effects of the relevant Errors (Workaround).

SOFTWARE UPDATES AND UPGRADES

Licensor may develop modifications to the Software that (a) are minor improvements or augmentations and do not introduce material new functionality (Updates) or (b) additional features or functions, or substantial and material improvements with respect to the utility and efficiency of the Software or that add new features or functionality to the Software, and which are not marketed by Licensor as a separate module, product and/or service (Upgrades). Licensee is entitled to all Updates/Upgrades during the term of an M&S services Order for the Software identified therein. Licensor may charge additional fees for Upgrades to the extent Licensor generally imposes such an Upgrade fee on similarly situated customers. Updates/Upgrades must be installed by Licensee within a reasonable time, not to exceed 30 days, after Licensee is informed that such release is available. If Licensee fails to install such updates/upgrades, all warranties, indemnities and/or rights to service level credits shall be suspended, and Licensor is not liable for any security issue or maintenance related to such issue that was remediated in such release, until the failing upgrade/update is made. Licensor may provide Upgrades that resolve Errors and designate prior releases as end of life. Licensor shall not be required to support Software beyond its stated end of life period, provided that no version of Software under a then unexpired Order for M&S services shall have an end of life for Licensee prior to the end of the term for such Order for M&S services. All Updates and Upgrades constitute Software under the EULA.

TECHNICAL SUPPORT

Licensor will provide the following levels of technical support to the Licensee. Technical support is only provided for the production instance (i.e. not lab, test, preview or other non in-production environments) of the Software.

Severity Levels.

[1] “Priority 1” means an Error that results in data residing on a storage volume managed by the Software being Unavailable, where “Unavailable” means that the data is not returned upon request, where such Unavailable condition arises solely as a result of the Error in the Software..
“Priority 2” means that despite data on a storage volume managed by the Software being available, the Software is malfunctioning in a manner that seriously degrades the performance of the Software or the availability of material functionality exposed by the Software.
“Priority 3” means all other Errors (including but not limited to loss of redundancy)
[2] Business hours and business days are defined as “normal business hours” within the time zone of the Customer (e.g., 9am to 5 pm, Monday through Friday, with the exclusion of bank holidays in such time zone). “Response Time” means that Licensor gives Licensee an acknowledgment of receipt of the notice regarding the issue.
[3] This is the period of time that Licensor targets to either have an Error Correction or a Workaround available to Licensee. Licensor does not guarantee an actual Error Correction or a Workaround in this time frame and provides no credits or other rights to damages or claims for Licensee under these M&S Terms. Licensee may purchase Dedicated Care Service plans that provide levels of guaranteed performance and credits.
[4] Licensor’s telephone Priority 1 support numbers are currently available on Licensor’s website, Scality.com. If such numbers later are not made public, they will be provided to Licensee separately and may not be disclosed or shared without Licensor’s written permission.

CONDITIONS

Licensee is responsible for identifying all Software and hardware and the Software environment operating system as of the beginning of the M&S services (Supported Platform). If the Supported Platform information has not been communicated to Licensor and is not kept up-to-date by Licensee in communications to Licensor during term of the M&S services, Licensor will not be responsible for failure to provide M&S services to the extent such failure arose from lack of up-to-date Licensee contact information. Unless an Order specifically provides otherwise, or Licensor otherwise consents in writing, Licensee must use Licensor’s identified phone numbers and trouble ticket system (https://support.scality.com) for the technical support provisions to apply. Licensee shall cooperate with Licensor and provide Licensor access to Licensee personnel and resources as Licensor may reasonably require in order to provide technical support, which may include access through the Internet, VPN, remote desktop or other remote help technology, access to Licensee facilities, and/or access to, and assistance of, qualified Licensee personnel. Licensor is excused from any non-performance of M&S services to the extent any such non-performance is attributable to Licensee’s failure to meet these conditions.

EXCEPTIONS

Licensor shall have no obligation to provide technical support with respect to any Errors resulting from (i) misuse of the Software; (ii) modification of the Software by Licensee or any third party, except as expressly permitted in writing by Licensor; (iii) any combination or integration of the Software with hardware, Software and/or technology not identified by Licensor in the Software documentation, the Order, or other agreement between the parties, as compatible with the Software; (iv) Third Party Software, monitoring, or other applications which have not been certified for implementation by Licensor at the Licensee site; (v) continued support requests for issues where Licensor has provided an Update or Upgrade which has not been implemented by the Licensee; (vi) implementation of the Software on platforms other than Supported Platforms. Licensor is not required to provide technical support to the extent the provision thereof might reasonably be expected to jeopardize or harm Licensor’s rights in any intellectual property, or reveal trade secrets or other proprietary information of Licensor not generally available to the public or to end users of the Software.

OPTIONAL ALERTING

Licensor offers a remote monitoring/alerting service (Alerting Service) to Licensee as part of technical support, depending on the Software that is licensed, the Supported Platform capabilities, and Licensee’s configuration of its environment. Alerts sent by the Alerting Service do not constitute notice to Licensor of a technical support request. Licensee acknowledges that Licensee may not receive automated notices of important system events that might signal impending Errors.

FEES; TERM; RENEWAL (when applicable)

This section does not apply to Orders received by the Licensor from a Third-Party (including but not limited to authorized Reseller, authorized Distributor).
M&S services under an Order are not terminable (except as expressly stated below) for the term stated in the Order and are not refundable. The M&S service term commences on the Order for M&S services is executed by Licensor and Licensee (Effective Date) and shall continue in effect for a period stated in such Order or if not stated one (1) year. All Fees shall be paid in advance, annually, in accordance with the Order, or if no time for payment is stated in the Order, within thirty (30) calendar days after an invoice is issued by Licensor. The M&S services term shall automatically renew for successive one (1)-year terms (Renewal Term) unless either Licensee or Licensor provides written notice of its intent not to renew to the other party at least sixty (60) days prior to the end of the then-current initial term or Renewal Term. Licensor shall have the option to modify the rates and prices for M&S services in any Renewal Term by notifying Licensee of such new rates and prices at least ninety (90) days prior to the commencement of such Renewal Term.

LAPSE

If Licensee does not continue annual M&S services for specified Software, and later desires to re-commence M&S services, Licensee shall be required to pay for all periods during the lapse to reinstate the M&S services.

LICENSOR COMMUNICATIONS

Licensee shall identify a primary point of contact with Licensor to receive notices and information from Licensor regarding M&S services and keep such contact information up to date. Licensee expressly agrees to receive Licensor notices electronically, and such notices will be deemed received when sent to the then last known contact address, unless Licensor receives a rejection notice from the Licensee’s server. Licensor may establish one or more forms of communication channels for Licensee to receive such notices.

EULA TERMINATION

Upon any early termination of the EULA for breach of the EULA by Licensor, all Orders for M&S services related to the Software under the terminated EULA shall also terminate, and Licensor shall refund to Licensee the prorated, prepaid unused amount of M&S services. When applicable, except for the prior sentence, all Fees for M&S services are non-refundable and no credit or rebate shall be payable to Licensee upon any termination hereof.

EXHIBIT 2

SCALE CARE SERVICE SUPPLEMENTAL TERMS (Scale Care Services Terms)

These Scale Care Services Terms are provided under an applicable Order between the Licensee and Licensor that incorporates an End User Software License Agreement (EULA) and are supplemental to an Order for Scality Maintenance and Support Services (M&S Terms), which is required to support these Scale Care Services Terms. Capitalized terms not defined here are defined in the EULA or in the M&S Terms and incorporated herein.

Scale Care Services are optional maintenance and support services (above standard M&S services) and are only provided under an executed Order between Licensor and the applicable licensee as to the Software identified in the Order for one of either Business Scale Care, Enterprise Scale Care or Secure Site Care, and for a specified RING Environment.
In consideration of payment of the Fees in the applicable Order for these Scale Care Services Terms, and provided Licensee is not in breach of the EULA, the M&S Terms, or any Order, Licensor agrees, during the term of the Order for Scale Care Services, as follows:

Business Scale Care

If the Order for Scale Care Services designates Business Scale Care, the additional Business Scale Care services include the following:

1. Assistance with RING Upgrade. Licensor will assist the Licensee with RING software version upgrades that Licensor determines are necessary or required upgrades.
2. Assistance with adding existing connectors to the same environment. Licensor will assist Licensee with adding Connectors of the same type and servicing the same use case as Connectors already deployed in the Licensee’s environment, as Licensor judges necessary.
3. Meetings and Reporting. At Licensee’s request Licensor will conduct a quarterly review with the Licensee, and provide a quarterly predefined report including ticket review and system health check following the review.
4. Dashboard and Notifications. Licensor will monitor a predefined core set of Metrics (as determined by Licensor) on the cloud and give Licensee access to a Standard Dashboard for local notifications (1 channel configured on Licensor’s system).
5. Preventive detection of Incidents. Licensor will monitor Licensee’s platform via the Alerting System (as defined in the M&S Terms) and will take any of the following actions in order to attempt to prevent P1 events, as defined in the M&S Terms: open tickets on behalf of Licensee, initiate calls with Licensee, internal escalation to the relevant team.
6. Communication Channels. Licensee will use the Access Methods as defined in the Service Levels section of the M&S Terms for each Service Priority Category.
7. Service Levels. Subject to the CONDITIONS and EXCEPTIONS below, only in respect of active, in production use of the Software, Licensor shall acknowledge each properly submitted technical support requests as set forth below. Priority Categories are defined in M&S Terms.

* Licensor will prioritize the planning and execution of the requested Service.

1. Service Level Credits. Licensor will provide Licensee with the following Service Level Credits for failure to meet the Response Time Service Levels, subject to the CONDITIONS, EXCEPTIONS and SERVICE LEVEL CREDITS LIMITATIONS at the end of these Scale Care Service Supplemental Terms, only in respect of active, in production use of the Software, as follows:

2. Response Time Service Level Credit. 500 USD / 500 EUR / 50,000 JPY

3. Restoration efforts.</strong >Licensor will target the following restoration efforts:

* Licensor will prioritize the planning and execution of the requested Service.

4. Annual Product Roadmap Presentation. </strong >Licensor will provide, on an annual basis, a presentation of planned evolutions and improvement of Licensor’s products (the Product Roadmap Presentation). This presentation may be provided to multiple customers at one time, via videoconferencing, and may be pre-recorded.

Enterprise Scale Care

Enterprise Scale Care includes the following additional support services: 

1. Assistance with RING Upgrade. Licensor will assist the Licensee with RING software version upgrades that Licensor determines are necessary or required upgrades.
2. Assistance with adding existing connectors to the same environment. Licensor will assist Licensee with adding Connectors of the same type and servicing the same Use Case as Connectors already deployed in the Licensee’s environment, as Licensor judges necessary.
3. Assistance with RING Expansion. Licensor will assist the Licensee with RING Expansion that Licensor determines is necessary.
4. Assistance with up to one (1) Installation of a Testing Environment. A testing environment is a non-production environment used by Licensee. The testing environment cannot be used for pre-production system that will eventually be used in production. For clarity, the Installation of a testing environment does not include the OS installation.
5. Additional Service Days. Licensor will deliver up to five (5) Services Days, as requested by Licensee, during Licensor Business Days and Hours.
6. Advanced Operations Training. Licensor will deliver one (1) Advanced Operations Training as described in the Licensor’s catalog.
7. Meetings and Reporting. Licensor will conduct a fifteen (15) minute weekly standup meeting, quarterly reviews and one (1) annual workshop with the Licensee and provide a quarterly custom report following the review, in each case, at Licensee’s request. The theme and topics addressed in the quarterly custom reports and during the annual workshop shall be discussed and agreed upon between the Licensee and Licensor and may include ticket review, health check, review of the relevant tech bulletins, assessment and planning of change operations, recommendations. All meetings and workshops above may be provided remotely or in person, as determined by Licensor.
8. Dashboard and Notifications. Licensor will monitor an expanded set of Metrics (as determined by Licensor) for cloud monitoring and give Licensee access to an expanded set of local notifications.
9. Preventive detection of Incidents. Licensor shall monitor Licensee’s platform via the Alerting System (as defined in the M&S Terms), will receive automatic notifications and will take any of the following actions in order to attempt to prevent issues: open tickets on behalf of Licensee, initiate calls with Licensee. For P1 Events, the actions will include internal escalation to the relevant team.
10. Designated Engineer. Licensor will assign one Designated Engineer (Designated Engineer) that will be the designated point of contact and designated resource for Licensee. For clarity, Designated Engineers will be assigned to Licensee and other customers.
11. Communication Channels. Licensee will use the Access Methods as defined in the Service Levels section of the M&S Terms and the following additional communication channels: Slack channel, Emails to Designated Engineer. Licensee will have access to Scality Experts through an Annual Workshop on demand to discuss, for instance, new use cases.
12. Service Levels. Subject to the CONDITIONS and EXCEPTIONS below, only in respect of active, in production use of the Software, Licensor will meet the following Service Levels.
    (a) Response Time. Subject to the CONDITIONS and EXCEPTIONS below, only in respect of active, in production use of the Software, Licensor shall acknowledge each properly submitted technical support requests as set forth below. Priority Categories are defined in M&S Terms.

* Licensor will prioritize the planning and execution of the requested Service.

a. Availability. The Software shall be Available 100% of the time in a given calendar quarter (where Available means that the Software is not Unavailable as defined in the P1 definition in the M&S Terms).

b. Durability/No Data Loss Guaranty. So long as the Licensee’s environment is configured in accordance with Licensor requirements, and subject to the modifications below, Licensee shall not experience a Data Loss Event.

In the above service level, a “Data Loss Event” is an event where a request is made by an end user to the Licensee’s RING cluster, and the RING cluster cannot return the data associated with that request that was originally stored, provided that in determining whether there is a Data Loss Event:

• The data loss must impact at the end user data or user designated (not automated) meta data
• The data loss must be due to failure of the Licensor’s software or a limited number of hardware failures less than specified for the least protected hardware scheme set forth in the Order for Enterprise Scale Care.
• Licensee’s system must be run with at least the amount of free capacity specified by Licensor
• Licensee must operate at least 6 storage nodes in production
• Eventual reconstruction or recovery of data in commercially reasonable timeframe shall not constitute a Data Loss Event
• Data Loss Events arising from the same failure count as one Data Loss Event, regardless of the number of data objects not returned and even if the data loss is not discovered until some future time
• Data lost in the RING where the object was originally created will not be a Data Loss Event if that data is accessible in any Licensee RING infrastructure
• Data that has been damaged, exfiltrated or otherwise lost by misuse, third-party criminal or other unauthorized acts of third parties is not a Data Loss Event hereunder, provided that such data loss is not the direct result of a Licensor (not third-party) software code vulnerability

Service Level Credits. Licensor will provide Licensee with the following Service Level Credits for failure to meet the Response Time Service Levels, Availability Service Level and Durability/No Data Loss Guaranty Service Level, subject to the CONDITIONS, EXCEPTIONS and SERVICE LEVEL CREDITS LIMITATIONS at the end of these Scale Care Service Supplemental Terms, only in respect of active, in production use of the Software, as follows:

Response Time Service Level Credit. 500 USD / 500 EUR / 50,000 JPY

Availability Service Level Credit. 10,000 USD / 10,000 EUR / 1,000,000 JPY

Durability/No Data Loss Guaranty Service Level Credit. Should a Software cluster fail to meet the Durability/No Data Loss Guaranty Service Level, and if Licensor fails to resolve such issue within the Target Service Restoration period stated in the M&S Terms, Licensee will be entitled to a Service Level Credit equal to 10,000 USD / 10,000 EUR / 1,000,000 JPY.

Restoration efforts.  Licensor will target the following restoration efforts:

* Licensor will prioritize the planning and execution of the requested Service.

Annual Product Roadmap Presentation. Licensor will provide, on an annual basis, a presentation of planned evolutions and improvement of Licensor’s products (the Product Roadmap Presentation). This presentation may be provided to multiple customers at one time, via videoconferencing, and may be pre-recorded.
Cooperation with third-parties. Licensor will use commercially reasonable efforts to cooperate and work on troubleshooting with third-party providers, as Licensor judges necessary.

Secure Site Care

Secure Site Care includes the following additional support services:

1. Assistance with RING Upgrade. Licensee’s will assist the Licensor with RING software version upgrades that Licensee judge necessary.
2. Assistance with adding existing connectors to the same environment. Licensor will assist Licensee with adding Connectors of the same type and servicing the same Use Case as Connectors already deployed in the Licensee’s environment, as Licensor judges necessary.
3. Assistance with RING Expansion. Licensee’s will assist the Licensor with RING Expansion that Licensee judge necessary.
4. Assistance with up to one (1) Installation of a Testing Environment. A testing environment is a non-production environment used by Licensee. The testing environment cannot be used for pre-production system that will eventually be used in production. For clarity, the Installation of a testing environment does not include the OS installation.
5. Advanced Operations Training. Licensor will deliver one (1) Advanced Operations Training as described in the Licensor’s catalog.
6. Meetings and Reporting. Licensor will conduct a fifteen (15) minute weekly standup meeting, quarterly reviews and one (1) annual workshop with the Licensee and provide a quarterly report following the review, in each case, at Licensee’s request. The theme and topics addressed in the quarterly custom reports and during the annual workshop shall be discussed and agreed upon between the Licensee and Licensor and may include ticket review, health check, review of the relevant tech bulletins, assessment and planning of change operations, recommendations. All meetings and workshops above may be provided remotely or in person, as determined by Licensor.
7. Dashboard and Notification. Licensor will give Licensee access to an expanded set of Metrics (as determined by Licensor) and to a standard set of local notifications.
8. Designated Engineer. Licensor will assign one Designated Engineer (Designated Engineer) that will be the designated point of contact and designated resource for Licensee. For clarity, Designated Engineers will be assigned to Licensee and other customers.
9. Communication Channels. Licensee will use the Access Methods as defined in the Service Levels section of the M&S T&Cs and the following additional communication channels: Slack channel, Emails to Designated Engineer. Licensee will have access to Scality Experts through an Annual Workshop on demand to discuss, for instance, new use cases.
10. Onsite presence. Licensee may request onsite planned intervention(s) (Onsite Planned Intervention) for up to 2 weeks. Onsite Planned Interventions will be discussed and planned between Licensor and Licensee typically 8 (eight) weeks in advance. Licensee may request onsite intervention(s) (Onsite Ad-hoc Intervention) for up to 3 days. Onsite Ad-hoc Intervention will be discussed and planned between Licensor and Licensee typically 20 (twenty) days in advance. Onsite Planned and Onsite ad-hoc Interventions may be used in non-consecutive days, as discussed and agreed between Licensor and Licensee.
11. Service Levels. Subject to the CONDITIONS and EXCEPTIONS below, only in respect of active, in production use of the Software, Licensor shall acknowledge each properly submitted technical support requests as set forth below. Priority Categories are defined in M&S Terms.

12. Service Level Credits. Licensor will provide Licensee with the following Service Level Credits for failure to meet the Response Time Service Levels, subject to the CONDITIONS, EXCEPTIONS and SERVICE LEVEL CREDITS LIMITATIONS at the end of these Scale Care Service Supplemental Terms, only in respect of active, in production use of the Software, as follows:
Response Time Service Level Credit. 500 USD / 500 EUR / 50,000 JPY
13. Restoration efforts. Licensor will target the following restoration efforts:

* Licensor will prioritize the planning and execution of the requested Service.

14. Annual Product Roadmap Presentation. Licensor will provide, on an annual basis, a presentation of planned evolutions and improvement of Licensor’s products (the Product Roadmap Presentation). This presentation may be provided to multiple customers at one time, via videoconferencing, and may be pre-recorded.
15. Cooperation with third-parties. Licensor will use commercially reasonable efforts to cooperate and work on troubleshooting with third-party providers, as Licensor judges necessary.

GENERAL PROVISIONS

1. Unless expressly stated otherwise, Services included in Business Scale Care, Enterprise Scale Care and Secure Site Care offers will be provided during Licensor Business Days and Hours. Licensor Business Days and Hours as referred to in these Scale Care Services Terms are local working (i.e. non holiday, non-weekend) days and hours in the country the Resource of Licensor works from. If no local working days and hours are otherwise stated then working days and hours are Monday through Friday (excluding government recognized holidays), 9am to 5pm, local time.
2. For Enterprise Scale Care and Secure Site Care, included Services listed above might be delivered outside of Licensor Business Days and Hours as determined by Licensor. Each day (or portion thereof) of Services provided outside of Licensor Business Days and Hours needs to be approved by Licensor and shall count with a factor 2 against the Services included or Service Days ordered separately.
3. Service Level Credits shall be applied as credits only against the following Renewal Term M&S services and/or Scale Care Service fees and shall not be paid out, provided that if Licensee does not renew any M&S services (and/or any DCS services), then the net credit due from Licensor shall be paid to Licensee within 45 days of the end of M&S/DCS services.
4. Service level credits shall be treated as liquidated damages and Licensee is not entitled to any other damages of any kind in respect of the event that gave rise to entitlement to a credit (i.e. no consequential or other contractual damages are permitted related to application of a Service Level Credit).

ADDITIONAL TERMINATION RIGHT  

If the Software is not Available for at least 99% in a calendar quarter period, Licensee’s sole and exclusive remedy shall be to terminate that portion of the Order for Scale Care Services for the Software that failed to meet that standard by giving written notice of such election not later than 30 days after the end of the calendar quarter in which such failure occurred. 

If timely notice of a termination right above is given to Licensor, Licensor shall refund Licensee any prepaid, pro-rated unused fees for such Scale Care Services, which refund is the sole and exclusive remedy related to such breach of the service level obligations herein.  

CONDITIONS

All Service Levels and Service Level Credits and Termination rights are conditioned on the following (i.e. if all of the conditions are not met, then no Service Level Credits shall be due to the Licensee due to a failure to meet the Service Levels and Licensee shall not be entitled to terminate any Order):

1. Service level credits will only be payable after (a) Licensor has received Licensee’s final root cause analysis report (RCA Report), which such RCA Report shall not be abridged or redacted, and (b) Licensee and Licensor have discussed the RCA Report and agreed upon the conclusions therein. The RCA Report and discussions thereon are Confidential Information of Licensee, provided however that to the extent the RCA Report and/or discussions include identification of Licensor caused issues or failures, such discussions of Licensor caused issues or failures shall be deemed joint Confidential Information of Licensee and Licensor. Licensee must maintain log files and other data sufficient to create a reasonably supported RCA Report.  In general, that means that all log files are available for at least 5 days before and 14 days after the event giving rise to a service level breach.
2. Service levels provided as part of Scale Care Services apply at the cluster level, separately for each functional cluster (i.e., all servers in the same RING instance of the Software). Service levels do not apply at the server level (e.g., a store node being down does not impact the service level).
3. The Software must have been accepted and not subject to any right to reject (for example, during a test acceptance period) even if in production.
4. Licensee must not be in default of any obligation to Licensor under any agreement, Order, EULA or Scale Care Services Terms, and all fees must have been paid for the applicable Scale Care Services.
5. Licensee must make qualified, competent resources available to take all reasonable actions requested by Licensor, including but not limited to server reboots within 1 hour of Licensor’s request.
6. The Licensee employees operating the platform have received at least standard operational training from Licensor on the Software operation. Licensor may require that Licensee also appoint qualified personnel to take advanced operational training to support a Scale Care Services Order (if Licensor requires this it will provide such advanced operational training as part of Scale Care Services services).
7. The failure is not the consequence of a misconfiguration of the Software or other error or negligence of Licensee or its agents or contractors.
8. In a P1 event, Licensor must not be unduly prevented from applying changes to the functional cluster configuration by Licensee’s delay or refusal to authorize/consent, it being understood that when on a call with Licensee, Licensor will be authorized to make changes unless the Licensee personnel expressly state otherwise.
9. Licensee maintains the redundancy level specified by Licensor in the Architecture Document.
10. Licensee has installed all Updates (and Upgrades that Licensor provides without additional charge) and has done all configuration changes promptly within reasonable time after they are made available by Licensor.
11. No software or operating systems other than those approved by Licensor are running on the servers comprised in the cluster.
12. Licensor resources have, through the Internet, on demand access to production servers operating the Software on a 24 x 7×365 basis, or if not provided such access, then the time until such access is provided shall not be counted against Licensor in calculating the service credit.
13. Licensee allows Licensor to audit the installed Software to obtain such information as may be reasonably necessary to verify the failure to comply with a Service Level, such audit to be performed remotely, if remote access is possible, and otherwise on-site; provided that if such audit is to be performed on-site, then Licensor will provide reasonable advance notice of same, and such audit shall occur during Business Days and Hours. Any internal cost incurred by each Party or by any Licensor’s Authorized Reseller or Licensor’s Authorized Partner that are approved and are part of the procurement process for the Order (including but not limited to travel expenses or time spent for one Party’s employees or usual contractors) shall be covered by each Party. Licensor shall pay for any external expenses of such an audit.
14. The event giving rise to the service level breach did not arise as a result criminal or unauthorized acts of third parties, or failures of third-party software or hardware not reasonably within the control of Licensee and Licensor, provided that such service level breach is not the direct result of a Licensor (not third-party) software code vulnerability or error.

EXCEPTIONS   

In addition to the CONDITIONS, Licensor will not be responsible for failures to meet Service Levels attributable to:

1. Acts or omissions of Licensee, its agents, employees or contractors (including, without limitation, willful misconduct, negligence, breach of contract, or infringements of third-party proprietary rights).
2. Licensee’s failure to follow the conditions and instructions set forth in the EULA, M&S Terms, Scale Care Services Terms, Software documentation or other instructions provided to Licensee.
3. Downtime due to reasonably unforeseeable causes outside of the reasonable control of Licensor or downtime due to operating in a degraded mode.
4. The following provisions shall apply when determining Availability:
   1. The period when the Software is not available due to planned downtime and maintenance operations is not included in calculating Availability.
   2. Loss of access to the Software resulting from unavailability of the underlying datacenter or hardware infrastructure is not included in calculating Availability
5. The following provisions shall apply when determining Availability and Durability/No Data Loss Guaranty Service Credit:
   1. Licensee shall not be entitled to an Availability Service Level Credit or Durability/No Data Loss Guaranty Service Credit if: (1) the used capacity exceeds the recommended threshold (DISKFULL) set during the installation and/or monthly review with the Licensor to ensure that all write operations are able to fulfill; or (2) Licensee fails to deploy within a reasonable period of time the number of servers necessary to sustain the expected traffic based on the Licensee’s reported traffic volume during Licensee’s Peak Operating Period (defined in the P1 provisions of the M&S Terms), growth expectation, and the hardware being deployed, as recommended by the Licensor.
      

MAXIMUM SERVICE LEVEL CREDIT

Notwithstanding any provisions above:

1. Service Level Credits must be claimed within 90 days following the discovery of the event that triggered the Service Level Credit. Licensee shall send a written notice to Licensor to the following email address: legal@scality.com.
2. Service Level Credits are limited to 2 per calendar quarter, and events must occur at least 7 calendar days apart to trigger a separate Service Level Credit (i.e. if an event triggers a Service Level breach and then another event occurs 5 days later for the same type of Service Level breach, that is one Service Level breach).

EXHIBIT 3

PROFESSIONAL SERVICES (PS) SUPPLEMENTAL TERMS (PS Terms)

These PS Terms are provided under and supplemental to an applicable Order between the Licensee and Licensor that incorporates an End User Software License Agreement (EULA).

Capitalized terms not defined here are defined in the EULA or in any Maintenance and Support Terms (the M&S Terms) and are incorporated herein.

These PS Terms describe certain professional services to be performed by Licensor for Licensee and certain terms associated with these services.  These PS Terms control over any conflicting or different terms or conditions in the EULA or M&S Terms.

In consideration of payment of the Fees in the applicable Order for these PS Terms, and provided Licensee is not in breach of the EULA, the M&S Terms, or any Order, Licensor agrees, during the term of the Order for Professional Services, as follows:

PROFESSIONAL SERVICES TYPES

Licensor provides two types of Professional Services:

1. Professional Services based on Time & Materials (T&M Services)

T&M Services will be performed to assist Licensee in its use of Licensor technology and products, based on the number of days of Professional Services set forth in the Order and subject to the following:

• Each day (or portion thereof) of Professional Services performed during Licensor Business Days and Hours (on-site or Remotely) by a Consultant shall count with a factor 1 against the number of days ordered
• Each day (or portion thereof) of Professional Services performed outside of Licensor Business days (on-site or Remotely) by a Consultant needs to be approved by Licensor and shall count with a factor 2 against the number of days ordered. Example:  8 hrs (1 day) of Professional Services  are performed on a Saturday.  This constitutes use of 2 days of Professional Services.
• For Orders up to 20 Professional Services days, the days will expire twelve (12) months after the date Licensee or Third-Party sends the Order.
• For Orders of 21 Professional Services days or more, the days will expire twenty four (24) months after the date Licensee or Third-Party sends the Order.
• There are no refunds of prepaid, unused Professional Services fees.

One Day of service includes eight (8) Hours. Service hours are billed in not less than 2 hour blocks – meaning that any Service hour started will count for two (2) Hours, regardless of whether the actual amount of time spent after Service commencement was 2 hours.

No deliverables are included within the scope of T&M Services. The overall responsibility regarding the successful use of Licensor technology and products by Licensee rests with the Licensee.

1. Professional Services based on a Fixed Price (Fixed Price Services)

Fixed Price Services will be performed to assist Licensee with predefined operations as stated in Licensor’s Services catalog and are subject to the following:

• Fixed Price Services will be performed during Licensor’s Business Days and Hours. Any work performed outside of such Business Days and Hours must be discussed and approved by Licensor in advance, at Licensor’s sole and absolute discretion.
• The Fixed Price Service will expire twelve (12) months after the date Licensee or Third-Party sends the Order.
• Fixed Price Services are based upon reasonable and prompt responsiveness and cooperation from Licensee, and Licensee performing in all material respects, all Licensee Responsibilities set out herein and in any Order for Professional Services. If Licensee fails to promptly respond and otherwise reasonably cooperate in completion of the Fixed Price Services, after notice by Licensor, such engagement may be converted to a T&M Services and billed as such.
• There are no refunds of prepaid, unused Professional Services on Fixed Price Services fees, regardless of whether such Fixed Price Services were converted to T&M Services.

Fixed Price Services will be considered complete once the Professional Services as described in Licensor’s catalog have been delivered to Licensee.

LICENSOR RIGHTS AND OBLIGATIONS

Licensor will assign one Project Manager, who will coordinate with Licensee´s project manager or other designated point of contact regarding the overall management of the Services performed, thereby assisting a timely execution of the Services and may use the following guidelines:

• Preparation
  • Coordinate kick-off and onboarding meetings with Licensee and Consultant(s)
  • Assist in defining the work process
  • Assist in defining the communication plan
• Scope, plan, monitoring
  • Align with Licensee to determine the key objectives and schedule
  • Define and manage the Licensor resource plan, in accordance with the Order Form
  • Assist with change request
  • Regularly monitor progress of the Services
  • Prepare regular briefings on the project status
  • Assist Licensee in managing project risks
  • Assist in overcoming Services-related issues or blockers
• Governance & communication
  • Coordinate with Licensor resources to align the project schedule
  • Coordinate with Licensee and team members
  • Prepare progress reports at regular intervals (frequency to be agreed with Licensee)
  • Prepare a close down report: technical and non-technical (as applicable)

Licensor may, at its sole discretion, choose to engage different consulting personnel for different portions of the Professional Services.

Licensor may use sub-contractors for providing all or part of the Professional Services.

Licensor may collaborate with the Licensee to define a Scope of Work for the Services performed.

Licensee acknowledges and agrees that, while providing the Services, Licensor will use commercially reasonable efforts to complete the tasks identified in the applicable work plan.

LICENSEE RIGHTS AND OBLIGATIONS

Licensee is responsible for (“Licensee Responsibilities”):

• Providing a timely access to reasonably requested accurate and complete information relative to the Professional Services.
• Communicating in writing requirements, expectations and/or objectives.
• Communicating in writing any desired changes in the scope of the Professional Services.
• Providing adequate workspace, network connectivity and telephone, or internet access. VPN access to Licensor internal network from the Consultant’s laptop is required in order to provide the Professional Services to the Licensee.

Licensee shall be responsible for the actual content of any data file, selection and implementation of controls on its access and use, and security of the stored data.

Licensee is responsible for ensuring that it has appropriate backup, security and virus-checking procedures in place for any computer facilities Licensee provides or which may be affected by the Professional Services.

Licensee is responsible for ensuring that all software and other materials and data provided by Licensee in connection with the project is properly licensed to Licensee and that Licensor’s use thereof to provide Professional Services to Licensee do not and will not violate any rights (including any intellectual property or personal rights) of the owners of such software, materials or data.

Licensor may charge the Licensee on a Time & Material basis, based on the current Licensor’s List Price, for any delay or additional work caused by a failure of the Licensee to comply with the obligations set forth in this section. Licensor may interrupt the Services if any unreasonable delay or additional work is caused by a failure of the Licensee to comply with the obligations set forth in this section.

Licensee acknowledges and agrees that (i) it has received from Licensor all the necessary information pertaining to the scope, the provision and performance of the Professional Services related to Licensee’s intended use; and that (ii) Licensee has brought to Licensor’s attention all necessary information in order to allow Licensor to comply with its duty to perform the Professional Services.

AVAILABILITY

Business Days and Hours as referred to in those PS Terms are the local working (i.e. non holiday, non-weekend) days and hours in the country the Consultant of Licensor work from. If no local working days and hours are otherwise stated , then working days and hours are Monday through Friday (excluding government recognized holidays), 9am to 5pm, local time.

LOCATION

Professional Services will be performed at the Licensee site located at the “Ship-to” address shown in the Order or a remote location (Remote or Remotely). If applicable, any documentation related to the Professional Services may be completed Remotely at Licensor’s discretion.

FEES (when applicable)

This section does not apply to Orders received by the Licensor from a Third-Party (including but not limited to authorized Resellers and authorized Distributors).

For Orders for Professional Services that also includes other products and services (including but not limited to Licenses, Support Services), fees shall be paid in advance, in accordance with the payment terms on the Order.

For stand-alone Orders for T&M Services up to 20 Professional Services days, fees shall be paid in advance, in accordance with the payment terms on the Order.

For stand-alone Orders for Fixed Price Services and T&M Services of 21 Professional Services days or more, fees shall be paid:

• 50% in advance, in accordance with the payment terms on the Order;
• 50% after twelve (12) months, in accordance with the payment terms on the Order.

If no time for payment is stated in the Order, fees shall be paid within thirty (30) calendar days after an invoice is issued by Licensor.

Licensor shall charge the Licensee for 100% of the T&M Services or Fixed Price Services that are postponed without a written notice at least five (5) working days before the Consultant is to begin.

Updated November 13^th, 2024

1. SOFTWARE LICENSE

All software (Software) identified in an order form (Order), which may be provided in paper or via electronic means, that is executed by either (a) an authorized distributor (Distributor) on behalf of Scality (Licensor), or by Licensor, and (b) the party who is entitled to use the software (Licensee) are licensed (and not sold) in accordance with the Order and those ARTESCA License and support Terms & Conditions. Distributors must be authorized by Licensor to distribute the Software for this License to be valid. An Order may establish prices and volume/metrics of licensed Software but may not modify those ARTESCA License and support Terms & Conditions unless the Order expressly states that the Order terms supersede those ARTESCA License and support Terms & Conditions, and such provision is separately signed by Licensor. Licensor owns and retains the exclusive right, title and interest, including intellectual property rights, in the Software and Software documentation and all Software and Software documentation and copies made thereof are licensed, not sold.

2. LICENSE TYPES

The Software may be licensed as a Free License or as a Commercial License.  A Free License is subject to the special terms and conditions in the section “FREE LICENSE TERMS AND CONDITIONS” below. A Commercial License means a fee based license to use the Software for a specific period of time or for a specific usable storage capacity, or both, as set forth on the Order. 

3. LICENSE TERMS

Unless Licensee breaches those ARTESCA License and support Terms & Conditions or the Order and Licensor terminates those ARTESCA License and support Terms & Conditions and/or an Order, Licensor grants Licensee a worldwide, limited, non-exclusive, non-transferable and non-sublicensable during the period of time set forth on an Order, license to use the object code version of the Software for up to the usable storage capacity identified on the Order Form (if the Order fails to specify a specific amount of storage the storage limit shall be one terabyte) at the location(s) set forth on the Order.

Licensee is also licensed to use and make internal copies of all Software documentation provided by Licensor solely in connection with the use of the Software as authorized above. Licensee may make internal copies of the Software solely for backup and restoration purposes but may not use such copies of the Software for live or production use, or any direct or indirect use of the Software which is in live or production use or serving its final or intended or revenue generating purpose (Production Use).

“usable storage capacity” is calculated by dividing total raw capacity used for storing data (which the total capacity of disks used to store data) by the data protection overhead ratio required to protect data on such hardware per the attached formula:

Usable storage capacity = (raw storage used to store data) / (data protection overhead ratio).

For example, for a storage with 120 disks of 20TB and ARC 9+3 :

• raw capacity is 120*20=2400TB
• data protection overhead = 12/9 = 1.33
• usable storage capacity = 2400/1.33 = 1800TB

Licensee may only use the Software on operating system listed on the Licensor website at www.scality.com as compatible with the Software.

4. FREE LICENSE TERMS AND CONDITIONS

Licensor may grant the right to use the Software without a fee for defined period of time (the “Trial Period”). The Trial Period is thirty (30) days, starting the day of the Software installation. Licensor may change the terms of the Free License at any time, including terminating the Free License completely. While Licensee may use the Free License in regular production, Licensee acknowledges Licensor’s right to terminate the Free License at the end of the Trial Period.
In the event the Licensee continues to use the Software for any purposes beyond the Trial Period, Licensor reserves the right to charge the Licensee, and the Licensee shall accept and pay the Licensor’s invoice within thirty (30) days, based on the maximum usable storage capacity made available for Free License and the applicable Scality list price.
The Licensor makes no commitment regarding technical support provided to the Licensee. The Licensor may provide technical support, in its sole discretion.

5. THIRD PARTY SOFTWARE

Licensor may distribute software owned by third parties (Third Party Software) with the Software. Third Party Software may be subject to other license terms. To the extent Licensor has the right to distribute such Third Party Software, Licensor grants Licensee all of the rights the Licensor has to Third Party Software for use in connection with the Software. Third Party Software that is not embedded into the executable Software image provided by Licensor is not “Software” in those ARTESCA License and support Terms & Conditions.

6. LIMITATIONS

Except to the extent expressly licensed as provided in those ARTESCA License and support Terms & Conditions and an Order, Licensee may not directly, or indirectly through another, reproduce, modify, translate or otherwise create derivative works from, rent, lease, loan or otherwise distribute, copy, decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, processes or algorithms by any legal or technical means whatsoever, in respect of all or any part of the Software, Software documentation or Licensor’s Confidential Information (defined below). Licensor reserves all rights to the Software, Software documentation and Licensor Confidential Information not expressly granted herein or in an Order.

7. OTHER RESTRICTIONS

Unless otherwise stated in an Order or approved by Licensor in writing, Licensee may not directly or indirectly through or with another: (i) move the Software to a location other than the location set forth on the initial Order; (ii) publish or disclose any features, functionalities, attributes, results of any test or benchmarking or comparative study of, the Software or documentation or use such results or information for any software development activity; (iii) remove any product identification, proprietary, copyright or other notices contained in the Software or documentation; or (iv) use the Software on any hardware or systems environment other than those listed on the Licensor website at www.scality.com as compatible with the Software.

8. UPDATES AND UPGRADES

Software includes patches, updates, improvements, additions, enhancements and other modifications that may subsequently be made available to Licensee to the extent provided in an applicable Order for maintenance and support services for Commercial Licenses. Licensor makes no commitment to update, upgrade or provide support for Free Licenses. Unless otherwise provided in an Order for maintenance and support services, Licensor may determine that it will not support a particular version of Software licensed on a Commercial License basis with at least one year’s prior notice to Licensee. Acceptance and implementation of any updates and/or upgrades provided by Licensor are compulsory and may not be refused by Licensee.

9. ADDING STORAGE CAPACITY

Licensee shall be responsible for the Fees (at Licensor’s standard rates, if none are set forth in an Order) for added usable storage capacity from the date of such addition regardless of whether an Order has been placed or not by the Licensee or by an Authorized reseller of Licensor. Licensor will “true up” accordingly the license Fees which are due on that basis and will invoice the Licensee as necessary.

10. AUDIT

For the term of those ARTESCA License and support Terms & Conditions and all applicable Orders and one (1) year thereafter, (a) Licensee will maintain all books, records, contracts and accounts relating to its use of the Software, the receipt of Services and general compliance under those ARTESCA License and support Terms & Conditions and applicable Orders, and (b) Licensor will have the right, at its own expense and under reasonable conditions of time and place, to audit and copy any or all of such records; provided however, that in no event shall Licensor be permitted to engage in more than two (2) audits in any given calendar year. If any such audit discloses a breach of those ARTESCA License and support Terms & Conditions and applicable Orders or underpayment of any amounts by Licensee or its employees or agents, Licensee will, in addition to such other rights and remedies as may be available to Licensor as the result of such breach, pay to Licensor the reasonable cost of such audit and copying. Licensor will use information obtained from such audit only to verify and enforce Licensee’s compliance with the terms of those ARTESCA License and support Terms & Conditions and applicable Orders, to comply with any governmental reporting requirements and for such other purposes as required by law.

10. CONFIDENTIALITY

Each Party acknowledges that it may be furnished, receive or otherwise have access to information that is of a confidential, proprietary, or trade secret nature furnished or disclosed by one Party (the “Discloser”) to the other Party (the “Recipient”) under those ARTESCA License and support Terms & Conditions and applicable Orders, including information exchanged in contemplation of entering into those ARTESCA License and support Terms & Conditions and applicable Orders (Confidential Information) of the other Party in connection with those ARTESCA License and support Terms & Conditions and applicable Orders which shall remain the property of the Discloser. Each Party agrees that Confidential Information received from the other Party: (a) will only be used as necessary to achieve the purposes and objectives of those ARTESCA License and support Terms & Conditions and applicable Orders; (b) will not be disclosed to any third party without prior written approval of Discloser; (c) may only be disclosed within the receiving organization on a “need-to-know” basis to persons who have been advised of the existence of those ARTESCA License and support Terms & Conditions and applicable Orders and agree to be bound by its terms; and (d) will be treated with at least the same degree of care as Recipient treats its own Confidential Information, but in no event with less than a reasonable degree of care. Recipient will notify Discloser promptly of any unauthorized use or disclosure of Confidential Information and cooperate with and assist Discloser in every reasonable way to stop or minimize such unauthorized use or disclosure. Notwithstanding the above Confidential Information will not include information that: (i) is or becomes known to the public without breach of those ARTESCA License and support Terms & Conditions and applicable Orders by Recipient; (ii) is already known to or in the possession of Recipient at the time of disclosure; (iii) is independently developed by or for Recipient as evidenced by Recipient’s own files and records; (iv) is rightfully obtained by Recipient from a third party that was lawfully in possession of the information and had the right to disclose the same; or (v) the Parties mutually agree in writing to release from the terms of those ARTESCA License and support Terms & Conditions and applicable Orders. Confidential information will not be deemed to be publicly known merely because all or a portion of such information is embodied in general disclosures or because individual features and/or components (or the combination of such features and components) are or become known to the public. A Party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, or the requirements of the Securities and Exchange Commission (“SEC”) pursuant to the rules and regulations promulgated by the SEC, as well as to the New York Stock Exchange and any other regulator charged with the administration, oversight or enforcement of regulations applicable to any business conducted by Licensor, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order or otherwise maintain the confidentiality of the information to be disclosed; or (b) to establish a Party’s rights under those ARTESCA License and support Terms & Conditions and applicable Orders, including to make such court filings as it may be required to do.

11. LICENSOR WARRANTIES; REMEDY

With respect to a Commercial License, Licensor represents and warrants that the Software will conform in all material respects to the Software documentation for a period of ninety (90) days after the Software is delivered to Licensee pursuant to those ARTESCA License and support Terms & Conditions and applicable Orders, provided that such warranty will not apply to failures to conform to the Software documentation to the extent such failures arise, in whole or in part, from (a) any use of the Software other than in accordance with the Software documentation, (b) modification of the Software by Licensee or any third party, (c) non acceptance/implementation of any update/upgrade by Licensee, or (d) any combination of the Software with software, hardware or other technology not provided by Licensor under those ARTESCA License and support Terms & Conditions and applicable Orders or specified by Licensor to work with the Software. For all warranty claims made by Licensee during the warranty period, Licensor will use commercially reasonable efforts to resolve, at no charge to Licensee, any such nonconformities. This is Licensee’s sole and exclusive remedy for a breach of this warranty, except to the extent provided in an Order. LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES IN RESPECT OF FREE LICENSES.

12. DISCLAIMER

EXCEPT AS EXPRESSLY WARRANTED IN THOSE ARTESCA LICENSE AND SUPPORT TERMS & CONDITIONS, THE SOFTWARE, AND ANY OTHER MATERIALS (INCLUDING THIRD PARTY SOFTWARE) AND/OR SERVICES PROVIDED BY LICENSOR ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND LICENSOR AND THEIR SUPPLIERS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF QUIET ENJOYMENT, ACCURACY OF DATA, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. NO WARRANTY IS MADE BY LICENSOR ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES PROVIDED UNDER THOSE ARTESCA LICENSE AND SUPPORT TERMS & CONDITIONS WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

13. TERM AND TERMINATION

Those ARTESCA License and support Terms & Conditions is effective on the date the first Order referencing those ARTESCA License and support Terms & Conditions is executed by the Parties and will terminate on the earlier of termination as provided below, or the last date the last Order term ends. A Party may terminate those ARTESCA License and support Terms & Conditions and applicable Orders if the other Party is in material breach of any obligation under those ARTESCA License and support Terms & Conditions and applicable Orders and fails to remedy such failure or breach within thirty (30) days after receipt of written notice of such breach from the non-breaching Party, including, but not limited to failure to timely pay the Fees. If those ARTESCA License and support Terms & Conditions and applicable Orders are terminated by either Party, or otherwise expires, then (a) within ten (10) days of the effective date of termination or the date of expiration, as applicable, Licensee will certify in writing to Licensor that the Software and all other Confidential Information in the possession of Licensee have been destroyed; (b) any License rights granted by Licensor under the applicable Order will immediately terminate as of the effective date of termination or the date of expiration, as applicable; (c) Licensee will promptly pay all unpaid amounts accrued under the terminated or expired Order; (d) each Party shall return or destroy all Confidential Information of the other Party in its possession; and (e) Licensor will have no further responsibility or liability thereunder as of the effective date of termination or the date of expiration, as applicable. Notwithstanding the above, a Free License may be terminated at any time by Licensor, with notice (email suffices) to Licensee.

14. LICENSE & SUPPORT FEES REVISION

Unless otherwise specified in the Order, on each anniversary date, Licensor reserves the right to revise ARTESCA License and support fees with a maximum Fees increase of five percent (5%), provided that Licensor shall notify Licensee in writing of any such revision at least thirty (30) days prior to said anniversary date.

15. INDEMNITY

With respect to Commercial Licenses Licensor shall defend, indemnify, and hold Licensee harmless against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities awarded to a third party arising out of any claim by a third party that the Software as delivered by Licensor infringes or misappropriates, as applicable, any U.S. or French patent issued as of the effective date of the applicable Order, or any copyrights or trade secrets under applicable laws of any jurisdiction within the United States or within France. Notwithstanding the foregoing, Licensor shall have no obligation or liability to the extent that the alleged infringement arises from (1) the combination, operation, or use of the Software with products, services, information, materials, technologies, business methods or processes not furnished by Licensor or specified in the Software documentation; (2) modifications to the Software, which modifications are not made by Licensor; (3) failure to use updates to the Software provided by Licensor; (4) misuse of the Software or use of the Software except in accordance with the Software documentation; or (5) breach of confidentially provisions herein (circumstances under the foregoing clauses (1), (2), (3), (4), and (5), collectively, “Licensee Indemnity Responsibilities”). Upon the occurrence of any claim for which indemnity is or may be due by Licensor, or in the event that Licensor believes that such a claim is likely, Licensor may, at its option (i) appropriately modify the Software so that it becomes non-infringing, or substitute functionally equivalent software or services; (ii) obtain a license to the applicable third-party intellectual property rights; or (iii) terminate those ARTESCA License and support Terms & Conditions and applicable Orders on written notice to Licensee and refund to Licensee any unused prepaid license Fees under the then current Order Term(s). The obligations set forth in this section constitute Licensor’s entire liability and Licensee’s sole remedy for any actual or alleged infringement or misappropriation.
Licensee shall indemnify, hold harmless, and defend Licensor from and against all losses, expenses (including reasonable attorneys’ fees), damages, and liabilities awarded to a third party resulting from a claim by a third party arising from or in connection with the Licensee Indemnity Responsibilities.
Each party (as the indemnitee) agrees to give the other Party (as the indemnitor) (a) prompt written notice of such claim; (b) sole authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as may reasonably be requested, at the indemnitor’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, the indemnitor shall not settle any third-party claim unless such settlement completely and forever releases the indemnitee with respect thereto or unless the indemnitee provides its prior written consent to such settlement. The indemnitee may participate in such defense at its own expense by counsel of its choice. For the avoidance of doubt, Licensor does not agree and will not indemnify Licensee in respect of any Free License.

16. LIMIT OF LIABILITY

With respect to Commercial Licenses Licensor will be liable to Licensee (or any affiliate of Licensee) only for the amount of Licensee’s actual direct damages, not to exceed (in the aggregate for all claims) the amount paid by Licensee to Licensor for the specifically deployed Software that caused the liability and is the subject of the claim. For the avoidance of doubt, Licensor will not be liable in damages for any claim arising from any use of a Free License by Licensee; Licensee’s sole and exclusive remedy for any claim relating to a Free License is to terminate use of the Software licensed under the Free License. In no event will Licensor’s aggregate liability for all claims arising under or relating to any single Order exceed the total amount paid to Licensor by Licensee pursuant to such Order for the twelve (12) months prior to month in which the event giving rise to liability occurred under such Order. EXCEPT WITH RESPECT TO (A) BREACHES OF LICENSEE’S OBLIGATIONS SET FORTH IN THE SECTION “CONFIDENTIALITY” AND THE SECTION “INDEMNITY”; AND (B) DAMAGES ATTRIBUTABLE TO LICENSEE’S MISAPPROPRIATION, VIOLATION OR INFRINGEMENT OF LICENSOR’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY, OR LICENSOR’S SUPPLIERS, BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, DAMAGES RESULTING FROM LOSS OF DATA, SECURITY BREACH, PROPERTY DAMAGE, LOST REVENUE, LOST SAVINGS OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH THOSE ARTESCA LICENSE AND SUPPORT TERMS & CONDITIONS, THE PERFORMANCE OF THE SOFTWARE OR LICENSOR’S PERFORMANCE OF SERVICES OR OF ANY OTHER OBLIGATIONS RELATING TO THOSE ARTESCA LICENSE AND SUPPORT TERMS & CONDITIONS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The limitations of liability set forth in this Section will survive and apply notwithstanding the failure of any limited or exclusive remedy for breach of warranty set forth in those ARTESCA License and support Terms & Conditions and applicable Orders.

17. APPLICABLE LAW

For End-users based in the United States of America :
Those ARTESCA License and support Terms & Conditions and all Orders will be governed by the laws of the United States and the State of California, without regard to any provision of law that would require or permit the application of the substantive law of any other jurisdiction. Those ARTESCA License and support Terms & Conditions and all Orders will not be subject to (a) the United Nations Convention on Contracts for the International Sale of Goods; or (b) any version of the Uniform Computer Information Transactions Act (UCITA) as it is, or may be, adopted in any state. The Parties hereby irrevocably consent to the exclusive personal jurisdiction and venue of the federal and state courts located in the State of California, including in case of claim from third parties. The Parties expressly waive any right to a trial by jury in any claim between them, whether arising hereunder, or in tort or under applicable statutory or regulatory law.

For End-users based in other regions (ROW) :
Those ARTESCA License and support Terms & Conditions and all Orders will be governed by the laws of France, without regard to any provision of law that would require or permit the application of the substantive law of any other jurisdiction. Those ARTESCA License and support Terms & Conditions and all Orders will not be subject to the United Nations Convention on Contracts for the International Sale of Goods; or any other Law/regulation, as it may be adopted in any other jurisdiction. The Parties hereby irrevocably consent to the exclusive jurisdiction of the Paris Courts, including in case of claim from third parties. The Parties expressly waive any right to a trial by jury in any claim between them, whether arising hereunder, or in tort or under applicable statutory or regulatory law.

18. COMPLIANCE WITH LAWS

Each Party will perform its obligations and exercise its rights in a manner that complies with all applicable laws. Licensee covenants to obtain all permits, licenses and other consents necessary for the installation, importation, use and exercise of other rights granted to it herein.

19. PERSONAL DATA PROTECTION

In the course of its activity, Licensor may be required to collect and process or sub-process the personal data of the Licensee or the Licensee’s customers (hereafter referred to as the “Users”).
Licensor attaches particular importance to the respect for the privacy of the Users and of the confidentiality of their personal data, and is thus committed to processing or sub-processing the data in compliance with the applicable laws and regulations, and in particular Law No. 78-17 of 6 January 1978 relating to Information Technology, Data Files and Civil Liberties, and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (hereafter referred to as the “GDPR”).

20. PRODUCT USAGE DATA

Licensor may collect and analyze data regarding Licensee’s use of the Software, excluding any personal data (“Product Usage Data”). Licensor may use this information for its own business purposes, including to maintain, operate, and improve the Software, monitor and analyse activities in connection with the Software, as well as to create anonymized statistics for Licensor’s own marketing purposes or improve Licensee’s journey. Collected Licensor metrics include amongst others Bandwidth, IOPS, Latencies, Log files (which are only collected when the global all logs or PluginOpt scality_ctdb.logs are enabled). To access the full list of Collected Scality metrics click on the following link. Licensor will implement reasonable technical and organizational safeguards designed to protect Product Usage Data against unauthorized loss, destruction, alteration, access, or disclosure, and Licensor will not access or use Product Usage Data except as necessary to achieve aforementioned goals.

21. GENERAL

Those ARTESCA License and support Terms & Conditions, and each Order constitute the entire agreement between the Parties and supersedes all other prior or contemporaneous communications between the Parties (whether written or oral) relating to the subject matter of those ARTESCA License and support Terms & Conditions and applicable Orders. Those ARTESCA License and support Terms & Conditions and all Orders may be modified or amended solely in a writing signed by both Parties. Licensee may not assign or otherwise transfer any right or obligation set forth in those ARTESCA License and support Terms & Conditions or any Order without Licensor’s prior written consent, which consent shall not be unreasonably delayed, conditioned or withheld. Any purported assignment in violation of the preceding sentence will be void. Those ARTESCA License and support Terms & Conditions and all Orders will be binding upon the Parties’ respective successors and permitted assigns. Those ARTESCA License and support Terms & Conditions and each order have been mutually negotiated and are deemed to have been prepared at arm’s length at the joint direction and construction of the Parties and is to be interpreted in accordance with its terms without favor to either Party. Any notice hereunder will be in writing and sent by electronic mail, provided any notice the failure to respond to of which would result in a termination of those ARTESCA License and support Terms & Conditions or an Order will be delivered by reliable overnight courier, signature required. Notices shall be in English and will be deemed given on the earlier of the date of actual receipt without rejection by an email system, or the date recorded as delivered by the overnight courier. All notices will be sent to the other Party at its address as set forth in the Order. Each party consents to receive communications from the other electronically. The Parties agree that all agreements, notices, disclosures and other communications that are provided electronically satisfy any legal requirement that such communications be in writing. The provisions of those ARTESCA License and support Terms & Conditions and applicable Orders will be deemed severable, and the unenforceability of any one or more provisions will not affect the enforceability of any other provisions. In addition, if any provision of those ARTESCA License and support Terms & Conditions and applicable Orders, for any reason, is declared to be unenforceable, the Parties will substitute an enforceable provision that, to the maximum extent possible under applicable law, preserves the original intentions and economic positions of the Parties. No failure or delay by a Party in exercising any right, power or remedy will operate as a waiver of that right, power or remedy, and no waiver will be effective unless it is in writing and signed by the waiving Party. If a Party waives any right, power or remedy, the waiver will not waive any successive or other right, power or remedy the Party may have under those ARTESCA License and support Terms & Conditions and applicable Orders. Those ARTESCA License and support Terms & Conditions and applicable Orders do not confer any benefit, right or privilege in any person or entity not a party to those ARTESCA License and support Terms & Conditions and applicable Orders. Licensee grants Licensor the right to (a) identify Licensee as a customer of Licensor, and (b) use Licensee’s name, mark and/or logo on Licensor’s website and/or in Licensor marketing materials. Except for the obligations related to Confidential Information, License rights and restrictions, and payment, neither Party is responsible for any failure to comply with the terms of those ARTESCA License and support Terms & Conditions and applicable Orders or any Order where the failure or delay is due to causes beyond the reasonable control of the Party. The relationship established by those ARTESCA License and support Terms & Conditions and applicable Orders is solely that of a licensor and licensee, and each Party will act at all times as an independent party for its own account. Neither Party may represent or hold itself out as an agent or representative of the other. Neither Party has any authority to, and is expressly prohibited from, creating or assuming any obligation on behalf of the other, and from otherwise making or extending any representation, warranty, guarantee or other commitment for or on behalf of the other. The terms set forth in the sections entitled LIMITATIONS, OTHER RESTRICTIONS, FEES (to the extent not paid at the end of the Term), AUDIT (for the period stated), CONFIDENTIALITY, DISCLAIMER, TERM AND TERMINATION, INDEMNITY, LIMIT OF LIABILITY, APPLICABLE LAW, COMPLIANCE WITH LAWS and GENERAL survive any termination or expiration of those ARTESCA License and support Terms & Conditions and applicable Orders.

22. SOFTWARE ERROR CORRECTIONS

Licensor will use commercially reasonable efforts to adapt, reconfigure or reprogram the Software, as applicable, to correct any material nonconformity of the Software with the Software documentation (Error(s)) reported to Licensor by Licensee, in a reasonable time in light of the severity of the Error, provided that if such Error is the result of errors or misstatements in the Software documentation, Licensor may correct such non-conformity by amending the Software documentation (Error Correction).

23. WORKAROUND

If Licensor is unable to complete an Error Correction, Licensor will use commercially reasonable efforts within a reasonable time in light of the severity of the Errors, to develop procedures or routines which, when employed in the regular operation of, or access to, the Software, will avoid or substantially diminish the practical adverse effects of the relevant Errors (Workaround).

24. SOFTWARE UPDATES AND UPGRADES

Licensor may develop modifications to the Software that (a) are minor improvements or augmentations and do not introduce material new functionality (Updates) or (b) additional features or functions, or substantial and material improvements with respect to the utility and efficiency of the Software or that add new features or functionality to the Software, and which are not marketed by Licensor as a separate module, product and/or service (Upgrades). Licensee is entitled to all Updates/Upgrades during the term of a Support services Order for the Software identified therein. Updates/Upgrades must be installed by Licensee within a reasonable time, not to exceed 30 days, after Licensee is informed that such release is available. If Licensee fails to install such updates/upgrades, all warranties, indemnities and/or rights to service level credits shall be suspended, and Licensor will not be liable for any security issue or maintenance related to such issue that was remediated in such release, until the failing upgrade/update is made. Licensor may provide Upgrades that resolve Errors and designate prior releases as end of life. Licensor shall not be required to support Software beyond its stated end of life period, provided that no version of Software under a then unexpired Order for support services shall have an end of life for Licensee prior to the end of the term for such Order for support services. All Updates and Upgrades constitute Software under the ARTESCA License and Support Terms & Conditions.

25. TECHNICAL SUPPORT

Licensor will provide the following levels of technical support to the Licensee. Technical support is only provided for the production instance (i.e. not lab, test, preview or other non in-production environments) of the Software.

Severity Levels.

1. “Priority 1” means an Error that results in data residing on a storage volume managed by the Software being Unavailable, where “Unavailable” means that the data is not returned upon request, where such Unavailable condition arises solely as a result of the Error in the Software..
   “Priority 2” means that despite data on a storage volume managed by the Software being available, the Software is malfunctioning in a manner that seriously degrades the performance of the Software or the availability of material functionality exposed by the Software.
   “Priority 3” means all other Errors (including but not limited to loss of redundancy)

2. Business hours and business days are defined as “normal business hours” within the time zone of the Customer (e.g., 9am to 5 pm, Monday through Friday, with the exclusion of bank holidays in such time zone). “Response Time” means that Licensor gives Licensee an acknowledgment of receipt of the notice regarding the issue.
3. This is the period of time that Licensor targets to either have an Error Correction or a Workaround available to Licensee. Licensor does not guarantee an actual Error Correction or a Workaround in this time frame and provides no credits or other rights to damages or claims for Licensee under these SUPPORT Terms.  Licensee may purchase Dedicated Care Service plans that provide levels of guaranteed performance and credits.
4. Licensor’s telephone Priority 1 support numbers are currently available on Licensor’s website, Scality.com.  If such numbers later are not made public, they will be provided to Licensee separately and may not be disclosed or shared without Licensor’s written permission.

26. CONDITIONS

Licensee is responsible for identifying all Software and hardware and the Software environment operating system as of the beginning of the Support services (Supported Platform). If the Supported Platform information has not been communicated to Licensor and is not kept up-to-date by Licensee in communications to Licensor during term of the Support services, Licensor will not be responsible for failure to provide SUPPORT services to the extent such failure arose from lack of up to-date Licensee contact information. Unless an Order specifically provides otherwise, or Licensor otherwise consents in writing, Licensee must use Licensor’s identified phone numbers and trouble ticket system (https://support.scality.com) for the technical support provisions to apply. Licensee shall cooperate with Licensor and provide Licensor access to Licensee personnel and resources as Licensor may reasonably require in order to provide technical support, which may include access through the Internet, VPN, remote desktop or other remote help technology, access to Licensee facilities, and/or access to, and assistance of, qualified Licensee personnel. Licensor is excused from any non-performance of SUPPORT services to the extent any such non-performance is attributable to Licensee’s failure to meet these conditions.

27. EXCEPTIONS

Licensor shall have no obligation to provide technical support with respect to any Errors resulting from (i) misuse of the Software; (ii) modification of the Software by Licensee or any third party, except as expressly permitted in writing by Licensor; (iii) any combination or integration of the Software with hardware, Software and/or technology not identified by Licensor in the Software documentation, the Order, or other agreement between the parties, as compatible with the Software; (iv) Third Party Software, monitoring, or other applications which have not been certified for implementation by Licensor at the Licensee site; (v) continued support requests for issues where Licensor has provided an Update or Upgrade which has not been implemented by the Licensee; (vi) implementation of the Software on platforms other than Supported Platforms. Licensor is not required to provide technical support to the extent the provision thereof might reasonably be expected to jeopardize or harm Licensor’s rights in any intellectual property, or reveal trade secrets or other proprietary information of Licensor not generally available to the public or to end users of the Software.

28. LICENSOR COMMUNICATIONS

Licensee shall identify a primary point of contact with Licensor to receive notices and information from Licensor regarding Support services and keep such contact information up to date. Licensee expressly agrees to receive Licensor notices electronically, and such notices will be deemed received when sent to the then last known contact address, unless Licensor receives a rejection notice from the Licensee’s server. Licensor may establish one or more forms of communication channels for Licensee to receive such notices.

Updated November 13th, 2024

Effective starting: November 14, 2017

SOFTWARE LICENSE AGREEMENT – TERMS AND CONDITIONS (EUROPEAN UNION / NON US)

These Software License Agreement – Terms and Conditions (the “Terms and Conditions”) are made and are effective as of the date set forth on the SOFTWARE LICENSE ORDER FORM (“Order”) signed by the parties thereto, that incorporates these terms and conditions by reference. In these Terms and Conditions (also referred to herein as the “Agreement”), Scality and the Customer identified in the Order are referred to herein collectively as the “Parties” and individually as a “Party”.

1. DEFINITIONS. Certain capitalized terms, if not otherwise defined above, shall have the meanings set forth below:

1.1 “Agreement” means the Order and these terms and conditions. To the extent of any conflict between them, none being intended, the Order terms shall control.

1.2 “Customer” means the entity that has licensed the Software under an Order.

1.3 “DCS” means Dedicated Care Support, which is provided under the separate Dedicated Care Support Services Terms and Conditions, and is only provided if the Order includes such services.

1.4 “Derivative Works” means a revision, enhancement, modification, translation, abridgment, condensation, expansion, new releases, or any other form in which all or part of any software included in the Software may be recast, transferred or adapted.

1.5 “Documentation” means all user manuals and user documentation associated with the Software that is made available to Customer by Scality pursuant to the terms of the Agreement.

1.6 “Effective Date” means the effective date as set forth on the Order.

1.7 “Fees” means all amounts owed by Customer to Scality under the Agreement.

1.8 “Hardware License” means a license to the Software that is tied to a given hardware device for the usable storage capacity (HDD and SSD) of the device measured in terabytes as specified on an Order and licensed for the life of that device.

1.9 “Intellectual Property Rights” means all intellectual and industrial property rights recognized in any jurisdiction, including copyrights, mask work rights, moral rights, trade secrets, patent rights, rights in inventions, trademarks, trade names and service marks (including without limitation applications for, and registrations, extensions, renewals, and re-issuances of, the foregoing).

1.10 “License” means licenses for Production Use and Non-Production Use provided by Scality to Customer pursuant to the Agreement as either a Hardware License or a Term License.

1.11 “Non-Production Use” means any use other than the Production Use.

1.12 “Production Use” means any live orproductionuse, or any direct or indirect use of the Software which is in live or production use or serving its final or intended or revenue-generating purpose.

1.13 “Products” means, collectively, the Software and Documentation.

1.14 “Services” means the services provided by Scality to Customer pursuant to the Agreement.

1.15 “Scality” means the entity listed in the Order that is licensing the Software to the Customer.

1.16 “Software” means the object code version of the software identified and defined as Software in each Order, such as the RING software and the applicable connectors ordered. The term “Software” includes, without limitation, any patches, updates, improvements, additions, enhancements and other modifications that may subsequently be made available to Customer pursuant to the terms of the Agreement. The term “Software” does not include Third Party Software.

1.17 “Supported Platform” means an operating system listed on the Scality website (at www.scality.com) as one with which the Software is compatible.

1.18 “Storage Capacity” means the amount of usable storage capacity (HDD and SSD) of the system (measured in terabytes) that may be used in connection with the Products, where usable storage capacity is calculated by subtracting from total raw capacity (HDD and SSD of all hardware on which the Products are installed) the data protection overhead required to protect usable data on such hardware.

1.19 “Term” means the period of time set forth in the Order for a Term License and the life of the specific storage drive (HDD and SSD) as specified on an Order for a Hardware License.

1.20 “Term License” means a license to the Software for a specific period of time as set forth on the Order.

1.21 “Third Party Software” means the object code version of the software identified in an Order as Third Party Software or other software identified in the Documentation as Third Party Software that is included with the Software, including, but not limited to, open source software.

2. NATURE OF THE TERMS AND CONDITIONS

The Agreement describes the Products (and associated Licenses), Services, and associated terms and conditions available for purchase by Customer. Scality is not obligated to provide, and Customer is not obligated to license or purchase (as applicable), any Products and/or Services unless and until the Parties execute the Order. These Terms and Conditions are, and shall be deemed to be, incorporated by reference into each such Order. Services will be provided by Scality using such systems, tools, and other means that it determines.

3. INTELLECTUAL PROPERTY RIGHTS; LICENSE

3.1 License. For a Hardware License, subject to the terms of the Agreement and any restrictions set forth in the Order, Scality hereby grants to Customer a worldwide, limited, non-exclusive and non-transferable license, during the Term set forth on an Order: (a) to use the object code version of the Software and the Third Party Software solely for Customer’s Production Use or Non-Production Use with no right to sublicense or otherwise offer the Software on a stand-alone basis for up to the number of storage devices identified on the Order Form, up to the Storage Capacity specified on the Order, at the location(s) set forth on the Order; and (b) to use the Documentation solely in connection with the use of the Software as authorized above. For clarity, Customer may make copies of the Software for use in Customer’s Production Use and/or Non-Production Use, subject to Section 3.2 below. Customer may make a reasonable number of copies of the Documentation for its internal use. The Third Party Software may contain additional terms as identified in an Order or the Documentation for open source software. For a Term License, subject to the terms of the Agreement and any restrictions set forth in the Order, Scality hereby grants to Customer a worldwide, limited, non-exclusive and non-transferable license, during the Term set forth on an Order: (a) to use the object code version of the Software and the Third Party Software solely for Customer’s Production Use or Non-Production Use with no right to sublicense or otherwise offer the Software on a stand-alone basis for up to the Storage Capacity identified on the Order Form (if the Order fails to specify a specific amount of storage the storage limit shall be one terabyte) at the location(s) set forth on the Order; and (b) to use the Documentation solely in connection with the use of the Software as authorized above. For clarity, Customer may make copies of the Software for use in Customer’s Production Use and/or Non-Production Use, subject to Section 3.2 below. Customer may make a reasonable number of copies of the Documentation for its internal use. The Third Party Software may contain additional terms as identified in an Order or the Documentation for open source software.

3.2 License Limitations. Except to the extent specifically permitted by Section 3.1, Customer may not (i) reproduce, modify, translate or create Derivative Works of all or any part of the Products; (ii) rent, lease, loan or otherwise distribute the Products or any Third Party Software to any third party or otherwise allow a third party to use the Products or any Third Party Software (either by way of remote terminal or through other computer facilities); (iii) copy, decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, processes or algorithms of all or any part of the Software by any legal or technical means whatsoever, nor disclose any of the foregoing; (iv) move the Software or any Third Party Software to a location other than the initial location set forth on the initial Order, without the prior written approval from Scality; or (v) publish or disclose to any third party any opinions relating to, or the results of any test or benchmarking or comparative study of the Software or any Third Party Software (whether or not obtained or performed with Scality’s assistance), or use such results for its own competing software development activities; or (vi) remove any product identification, proprietary, copyright or other notices contained in the Products or the Third Party Software. Customer may not sublicense any of its license rights to the Products or any Third Party Software (including without limitation the right to sublicense the Products to customers of Customer or other third parties). The Software may only be used with the Supported Platforms identified in the Order.

3.3 Professional Services. Scality will not perform any specific development, training or integration services for Customer, unless specifically agreed in a separate agreement between the Parties.

3.4 Title; Ownership. Scality owns and retains all right, title and interest, including without limitation Intellectual Property Rights, in and to the Products and Scality Confidential Information, and any other intellectual property that results from the performance of the Services other than Customer Confidential Information. The third parties identified in the Documentation and/or an Order for all Third Party Software retain ownership of their respective Third Party Software. All rights not expressly granted under the Agreement by Scality are hereby reserved by Scality. All copyrights, trade secret rights, trademarks, logos or other words identifying Customer or relating to their end user’s data or information are and shall remain the exclusive property of the Customer or its or their end user’s (or its or their licensors).

4. MAINTENANCE & SUPPORT SERVICES.

4.1 Maintenance and Support. All Maintenance and Support shall be provided under the Maintenance and Support Terms and Conditions incorporated into the Order.

4.2 Remote Monitoring and Diagnosis. The Software contains functionality that allows Scality to remotely monitor the Software, however, such functionality is neither enabled nor used unless Customer has ordered and accepted DCS. If Customer has ordered DCS, Customer hereby grants Scality the right to monitor and gain access to the Software for the limited purposes set forth in this Section and to provide DCS services. Customer acknowledges that the Software and its monitoring tools collect and transmit certain status information to Scality regarding the installation and operation of the Software. As part of Scality’s monitoring tools, there is a real-time monitoring, alarming and capacity planning solution. On the installation, the information indicates to Scality whether installation of the Software was successfully completed as well as whether the Software has encountered an error within the installation process operated by Customer. This information is collected by Scality for the purpose of evaluating and improving Software performance and installation success rate. On operation of the Software, the information concerns Software global status and its components capabilities, operations, capacity trends and health. Scality collects and remotely monitor the Software for the limited purpose of improving Software performance and service quality provided to Customer. The status information could contain personally identifiable information only if such information is included in the name of the file or folder encountered by the Software at the time it encounters an error. This information shall not be correlated with any personally identifiable information and shall not be considered as a process of personal data. The Software shall also collect and transmit to Scality other information which may be used for license administration, software analysis, and for improving software functionality. Scality shall also have a right to audit the installed Software to obtain such information, such audit to be performed remotely, if remote access is possible, and otherwise on-site; provided that if such audit is to be performed on-site, then Scality will provide reasonable advance notice of same, and such audit shall occur during normal business hours. The information collected by Scality pursuant to the present section shall not be correlated by Scality with any personally identifiable information.

5. FEES; PAYMENT

5.1 Fees. In consideration for the licenses granted to Customer and the performance of Scality’s obligations under the Agreement or the DCS, Customer shall pay to Scality, without offset or deduction, certain Fees, in such amounts as may be determined by reference to an Order. Unless otherwise provided in such Order, all such Fees shall be due and payable within thirty (30) calendar days after date of the Order for Products or the date of the Scality invoice for all other Fees. Customer will pay a late payment interest equal to the European Central Bank main refinancing operations rate plus ten (10) basis points per annum, on all amounts not paid in accordance with this Section 5.1; this interest will begin to accrue on the day after the payment due date and will accumulate on the outstanding balance on a daily basis until paid in full. Additionally, Customer will pay a flat rate recovery cost indemnity in the minimum amount of €. 40 per unpaid invoice as well as all other costs related to the collection of payments.

5.2 Special Terms for Hardware Licenses. If the Products are purchased under a Hardware License, then each time a new storage drive is added to the system (measuring it in TB capacity for usable data), the corresponding license Fee becomes due, as per Scality’s pricing policy. Customer will provide Scality a report of the actual capacity of the Customer system on a quarterly basis, including a report on the new hardware introduced during the previous quarter. Scality will “true up” accordingly the license Fees which are due on that basis and will invoice the Customer as necessary. If a given storage drive in a Customer deployment of a system containing Scality Software is being decommissioned and replaced by a new drive with a higher capacity, the purchase of a new license would become necessary, as per Scality pricing policy.

5.3 Taxes. All amounts payable under the Agreement shall exclude all applicable value added, sales, use and other taxes and all applicable export and import fees, customs duties and similar charges. Customer will be responsible for payment of all such taxes (other than taxes based on Scality’s income), fees, duties and charges, and any related penalties and interest, arising from the payment of any Fees hereunder, the grant of license rights hereunder, or the delivery of Services. Customer will make all payments required hereunder to Scality free and clear of, and without reduction for, any withholding taxes. If Customer have an obligation to withhold any amounts under any law or tax regime (other than income tax), Customer will gross up the payments so that Scality receives the amount actually quoted and invoiced. If Scality has a legal obligation to pay or collect taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provide Scality with a valid tax exemption certificate authorized by the appropriate taxing authority.

5.4 Disputed Charges. Customer will pay undisputed amounts when due. If Customer disputes in good faith any amount owed by Customer, Customer may withhold such disputed amount (up to a total for all disputed amounts of the total amount owed by Customer for the three (3) immediately preceding calendar months) so long as Customer provides a written notice of dispute by the due date for the disputed amount including a detailed explanation of the basis for Customer’s dispute. If Scality does not agree with Customer’s reasons for disputing any amount, the dispute will then be resolved under Section 11.1, however, the Parties will in good faith attempt to resolve such disputes within ninety (90) days of Scality’s receipt of Customer’s notice of dispute. If the dispute on any charge is resolved in favor of Scality, such charges will be due and payable within ten (10) days of such resolution, including applicable late fees from the original due date of payment by Customer for such charges.

5.5 Assurances. If Customer fails to pay any undisputed amount when due, then in addition to assessing interest Scality may (a) terminate any or all Licenses until paid; (b) suspend some or all Services until paid, including services provided pursuant to the DCS; and/or (c) require reasonable payment assurances (“Assurances”) including pre-payment of Fees, guaranties or letters of credit and condition continuing Licenses and Services on receipt of such Assurances. Upon thirty (30) days’ notice, Scality may require Assurances as a condition to continuing to provide Licenses and Services based on any material adverse change in the financial condition of Customer.

5.6 Audit. For the term of the Agreement and one (1) year thereafter, (a) Customer will maintain all books, records, contracts and accounts relating to its use of the Products, the receipt of Services, its payment of Fees and general compliance under the Agreement, and (b) Scality will have the right, at its own expense and under reasonable conditions of time and place, to audit and copy any or all of such records; provided however, that in no event shall Scality be permitted to engage in more than two (2) audits in any given calendar year. If any such audit discloses a breach of the Agreement or underpayment of any amounts by Customer or its employees or agents, Customer will, in addition to such other rights and remedies as may be available to Scality as the result of such breach, pay to Scality the reasonable cost of such audit and copying. Scality will use information obtained from such audit only to verify and enforce Customer’s compliance with the terms of the Agreement, to comply with any governmental reporting requirements and for such other purposes as required by law.

6. CONFIDENTIALITY

6.1 Definition. The term “Confidential Information” means information that is of a confidential, proprietary, or trade secret nature and is furnished or disclosed by one Party (the “Discloser”) to the other Party (the “Recipient”) under the Agreement (including information exchanged in contemplation of entering into the Agreement) that is: (a) marked as confidential; (b) if orally or visually disclosed, identified as confidential upon disclosure; or (c) due to its character, nature, or method of transmittal, information that a reasonable person under like circumstances would treat as confidential.

6.2 Protection of Confidential Information. Each Party acknowledges that it may be furnished, receive or otherwise have access to Confidential Information of the other Party in connection with the Agreement which shall remain the property of the Discloser. Each Party agrees that Confidential Information received from the other Party: (a) will only be used as necessary to achieve the purposes and objectives of the Agreement; (b) will not be disclosed to any third party without prior written approval of Discloser; (c) may only be disclosed within the receiving organization on a “need-to-know” basis to persons who have been advised of the existence of the Agreement and agree to be bound by its terms; and (d) will be treated with at least the same degree of care as Recipient treats its own Confidential Information, but in no event with less than a reasonable degree of care. Furthermore, Recipient agrees that it will not, and will not permit a third party to, (i) copy, decompile, reverse engineer, disassemble or create derivative works any Confidential Information except as specifically permitted under the Agreement or otherwise with the advance written consent of Discloser or (ii) alter, remove, or suppress any copyright, trademark, confidentiality, or other proprietary notices, marks or any legends placed, included, affixed, embedded or otherwise appearing in or on any Confidential Information, Software or Documentation or any related material; or fail to ensure that all such notices and legends appear on all full or partial copies of the Confidential Information, Software, Documentation or any related material. Recipient will notify Discloser promptly of any unauthorized use or disclosure of Confidential Information and cooperate with and assist Discloser in every reasonable way to stop or minimize such unauthorized use or disclosure.

6.3 Exceptions. “Confidential Information” will not include information that: (i) is or becomes known to the public without breach of the Agreement by Recipient; (ii) is already known to or in the possession of Recipient at the time of disclosure; (iii) is independently developed by or for Recipient as evidenced by Recipient’s own files and records; (iv) is rightfully obtained by Recipient from a third party that was lawfully in possession of the information and had the right to disclose the same; or (v) the Parties mutually agree in writing to release from the terms of the Agreement. Confidential information will not be deemed to be publicly known merely because all or a portion of such information is embodied in general disclosures or because individual features and/or components (or the combination of such features and components) are or become known to the public.

6.4 Exclusions. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law or the requirements of the Securities and Exchange Commission (“SEC”) pursuant to the rules and regulations promulgated by the SEC, as well as to the New York Stock Exchange and any other regulator charged with the administration, oversight or enforcement of regulations applicable to any business conducted by Scality, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order or otherwise maintain the confidentiality of the information to be disclosed; or (b) to establish a Party’s rights under the Agreement, including to make such court filings as it may be required to do.

7. WARRANTY

7.1 Scality Warranties. Scality represents and warrants that the Software will conform in all material respects to the Documentation for a period of ninety (90) days after the Software is delivered to Customer pursuant to the Agreement, provided that such warranty will not apply to failures to conform to the Documentation to the extent such failures arise, in whole or in part, from (a) any use of the Software other than in accordance with the Documentation, (b) modification of the Software by Customer or any third party, or (c) any combination of the Software with software, hardware or other technology not provided by Scality under the Agreement or specified by Scality as not interoperable with the Software. For all warranty claims made by Customer during the warranty period, Scality will use commercially reasonable efforts to resolve, at no charge to Customer, any such non-conformities. This is Customer’s sole and exclusive remedy for a breach of this warranty.

7.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY WARRANTED IN SECTION 7.1 OF THE AGREEMENT, THE PRODUCTS, AND ANY OTHER MATERIALS (INCLUDING THIRD PARTY SOFTWARE) AND/OR SERVICES PROVIDED BY SCALITY ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND SCALITY AND THEIR SUPPLIERS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF QUIET ENJOYMENT, ACCURACY OF DATA, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. NO WARRANTY IS MADE BY SCALITY ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. SCALITY DOES NOT WARRANT THAT THE PRODUCTS OR SERVICES PROVIDED UNDER THE AGREEMENT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

8. TERM AND TERMINATION

8.1 Term. The Agreement shall become effective upon the Effective Date and shall remain in full force and effect until the expiration or termination of all Terms set forth in the Order into which these Terms and Conditions were incorporated unless terminated earlier as provided for under the Agreement.

8.2 Termination by Either Party. A Party may terminate the Agreement if the other Party is in breach of any material obligation under the Agreement and fails to remedy such failure or breach within thirty (30) days after receipt of written notice of such breach from the non-breaching Party, including, but not limited to failure to timely pay the Fees.

8.3 Effect of Termination/Expiration. If the Agreement is terminated by either Party, or otherwise expires, then (a) within ten (10) days of the effective date of termination or the date of expiration, as applicable, Customer will certify in writing to Scality that the Products and all other Confidential Information in the possession of Customer have been destroyed or otherwise secured in accordance with Section 6; (b) any License rights granted by Scality under the applicable Order will immediately terminate as of the effective date of termination or the date of expiration, as applicable; (c) Customer will promptly pay all unpaid amounts accrued under the terminated or expired Order; (d) each Party shall return or destroy all Confidential Information of the other Party in its possession; and (e) Scality will have no further responsibility or liability thereunder as of the effective date of termination or the date of expiration, as applicable.

9. INDEMNITY

9.1 Scality Indemnity. Scality shall defend, indemnify, and hold Customer harmless against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities awarded to a third party arising out of any claim by a third party that the Products as delivered by Scality infringes or misappropriates, as applicable, any patent issued as of the Effective Date or any copyrights or trade secrets under applicable laws of any jurisdiction within the United States or within France, provided that Customer gives Scality (a) prompt written notice of such claim; (b) sole authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as Scality may reasonably request, at Scality’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Scality shall have no obligation or liability to the extent that the alleged infringement arises from (1) the combination, operation, or use of the Products with products, services, information, materials, technologies, business methods or processes not furnished by Scality; (2) modifications to the Products, which modifications are not made by Scality; (3) failure to use updates to the Products provided by Scality; (4) misuse of the Software or use of the Software except in accordance with the Documentation; or (5) breach of confidentiality provision (circumstances under the foregoing clauses (1), (2), (3), (4), and (5), collectively, “Customer Indemnity Responsibilities”). Upon the occurrence of any claim for which indemnity is or may be due under Section 9.2, or in the event that Scality believes that such a claim is likely, Scality may, at its option (i) appropriately modify the Product so that it becomes non-infringing, or substitute functionally equivalent software or services; (ii) obtain a license to the applicable third-party intellectual property rights; or (iii) terminate the Agreement on written notice to Customer and refund to Customer any unused license Fees under the then current Order Term(s). The obligations set forth in this Section 9 shall constitute Scality’s entire liability and Customer’s sole remedy for any actual or alleged infringement or misappropriation.

9.2 Indemnification by Customer. Customer shall indemnify, hold harmless, and defend Scality from and against all losses, expenses (including reasonable attorneys’ fees), damages, and liabilities awarded to a third party resulting from a claim by a third party arising from or in connection with Customer Indemnity Responsibilities. Scality agrees to give Customer (a) prompt written notice of such claim; (b) sole authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as Customer may reasonably request, at Customer’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Customer shall not settle any third-party claim against Scality unless such settlement completely and forever releases Scality with respect thereto or unless Scality provides its prior written consent to such settlement. In any action for which Customer provides defense on behalf of Scality, Scality may participate in such defense at its own expense by counsel of its choice.

10. LIMIT OF LIABILITY

10.1 Limitation of Liability. If Customer should become entitled to claim damages from Scality (including for breach of contract, breach of warranty, negligence or other tort claim), Scality will be liable only for the amount of Customer’s actual direct damages, not to exceed (in the aggregate for all claims) the amount paid by Customer to Scality for the specifically deployed Product that caused the liability and is the subject of the claim. In no event will Scality’s aggregate liability for all claims arising under or relating to any single Order exceed the total amount paid to Scality by Customer pursuant to such Order for the twelve (12) months prior to month in which the event giving rise to liability occurred under such Order.

10.2 Consequential Damages. EXCEPT WITH RESPECT TO (A) BREACHES OF CUSTOMER’S OBLIGATIONS SET FORTH IN SECTION 6 (CONFIDENTIALITY) AND SECTION 9 (INDEMNITY); AND (B) DAMAGES ATTRIBUTABLE TO CUSTOMER’S MISAPPROPRIATION, VIOLATION OR INFRINGEMENT OF SCALITY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY, OR SCALITY’S SUPPLIERS, BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, DAMAGES RESULTING FROM LOSS OF DATA, SECURITY BREACH, PROPERTY DAMAGE, LOST REVENUE, LOST SAVINGS OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, THE PERFORMANCE OF THE SOFTWARE OR SCALITY’S PERFORMANCE OF SERVICES OR OF ANY OTHER OBLIGATIONS RELATING TO THE AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.3 The limitations of liability set forth in this Section 10 will survive and apply notwithstanding the failure of any limited or exclusive remedy for breach of warranty set forth in the Agreement.

11. LAWS AND DISPUTE RESOLUTION

11.1 Choice of Law. The Agreement will be governed by the laws of the State of France, without regard to any provision of French law that would require or permit the application of the substantive law of any other jurisdiction. The Agreement will not be subject to (a) the United Nations Convention on Contracts for the International Sale of Goods; or (b) any version of the Uniform Computer Information Transactions Act (UCITA) as it is, or may be, adopted in any state.

11.2 The Parties hereby irrevocably consent to the exclusive jurisdiction of the Paris Courts, including in case of claim from third parties.

11.3 Informal Dispute Resolution. At the written request of either Party, the Parties will attempt to resolve any dispute arising under or relating to the Agreement through the informal means described in this Section 11.2. Each Party will appoint a senior management representative who does not devote substantially all of his or her time to performance under the Agreement. The representatives will furnish to each other all non-privileged information with respect to the dispute that the Parties believe to be appropriate and germane. The representatives will negotiate in an effort to resolve the dispute without the necessity of any formal proceeding. Formal proceedings, for the resolution of the dispute may not be commenced until the earlier of: (a)the designated representatives conclude that resolution through continued negotiation does not appear likely; or (b)thirty (30) calendar days have passed since the initial request to negotiate the dispute was made; provided, however, that a Party may file earlier to avoid the expiration of any applicable limitations period, to preserve a superior position with respect to other creditors, or to apply for injunctive or equitable relief.

11.4 Compliance with Laws. Each Party, at its sole expense, will perform its obligations and exercise its rights in a manner that complies with laws. If a charge is made that a Party is not complying with any such laws, such Party will promptly notify the other Party of such charges in writing. Each Party will comply with the export laws and regulations of France and other applicable jurisdictions. Each Party will, at its sole cost and expense, obtain and maintain in effect all permits, licenses, approvals and other consents related to its obligations under the Agreement. Without limiting the foregoing, Customer will be required to obtain all permits, licenses and other consents necessary for the development and distribution of the Products contemplated by any Order. If Customer violates this Section 11.3, Scality may terminate the Agreement upon notice.

12. GENERAL

12.1 Entire Agreement. The Agreement (the Order and these Terms and Conditions) constitute the entire agreement between the Parties, and supersedes all other prior or contemporaneous communications between the Parties (whether written or oral) relating to the subject matter of the Agreement. The Agreement may be modified or amended solely in a writing signed by both Parties.

12.2 Assignment. Customer may not assign or otherwise transfer any right or obligation set forth in the Agreement (whether by operation of law or otherwise) without Scality’s prior written consent, which consent shall not be unreasonably delayed, conditioned or withheld; provided, however, that Customer may assign the Agreement to any company which controls, is controlled by, or is under common control with Customer, or in the event of a merger, acquisition or sale of all or substantially all of the assets thereof. Notwithstanding the foregoing, Customer may not assign or otherwise transfer any right or obligation set forth in the Agreement (whether by operation of law or otherwise) without Scality’s prior written consent if the assignee or transferee is a competitor of, or in competition with, Scality. Any purported assignment in violation of the preceding sentence will be void. Scality may assign all or part of its rights or obligations set forth in the Agreement (whether by operation of law or otherwise) and all sums due or to become due pursuant to the Agreement for any reason. The Agreement will be binding upon the Parties’ respective successors and permitted assigns.

12.3 Order of Precedence; Interpretation. If there is any conflict between the general terms and conditions of the Agreement and the terms contained in any Order, the Parties will attempt to read any such conflicting provisions consistently, however, in the event such a consistent reading cannot be accomplished, the Order will take precedence over such other terms solely with respect to such Order and solely with respect to such conflicting terms. The Agreement has been mutually negotiated, and is deemed to have been prepared at arm’s length at the joint direction and construction of the Parties and is to be interpreted in accordance with its terms without favor to either Party.

12.4 Notice. Any legal notice or other communication required or permitted to be made or given by either Party pursuant to the Agreement will be in writing, in French or in English, and will be deemed to have been duly given: (a)five (5) business days after the date of mailing if sent by registered mail, postage prepaid, with return receipt requested; (b)when transmitted if sent by facsimile, provided a confirmation of transmission is produced by the sending machine and a copy of the notice is promptly sent by another means specified in this Section 12.4; or (c)when delivered if delivered personally or sent by express courier service. All notices will be sent to the other Party at its address as set forth in the Order. Each party consents to receive communications from the other electronically. Scality may communicate with Customer by e-mail or posting notices on the Scality web site. Customer agrees that all agreements, notices, disclosures and other communications that Scality provides to it electronically satisfy any legal requirement that such communications be in writing.

12.5 Severability. The provisions of the Agreement will be deemed severable, and the unenforceability of any one or more provisions will not affect the enforceability of any other provisions. In addition, if any provision of the Agreement, for any reason, is declared to be unenforceable, the Parties will substitute an enforceable provision that, to the maximum extent possible under applicable law, preserves the original intentions and economic positions of the Parties.

12.6 No Waiver. No failure or delay by a Party in exercising any right, power or remedy will operate as a waiver of that right, power or remedy, and no waiver will be effective unless it is in writing and signed by the waiving Party. If a Party waives any right, power or remedy, the waiver will not waive any successive or other right, power or remedy the Party may have under the Agreement.

12.7 Third Parties. Except for the suppliers of Third Party Software as contemplated in the Agreement, the Agreement is not intended nor will it be interpreted to confer any benefit, right or privilege in any person or entity not a party to the Agreement.

12.8 Marketing. Customer grants Scality the right to (a) identify Customer as a Scality Customer, and (b) with the prior approval in writing by Customer, which shall not be unreasonably withheld, use Customer’s name, mark and/or logo on Scality’s website and/or in Scality marketing materials.

12.9 Excusable Delay. Except for the obligations related to Confidential Information, License rights and restrictions, and payment, neither Party is responsible for any failure to comply with the terms of the Agreement or any Order where the failure or delay is due to causes beyond the reasonable control of the Party.

12.10 Independent Relationship. The relationship established by the Agreement is solely that of licensor and licensee, and each Party will act at all times as an independent party for its own account. Neither Party may represent or hold itself out as an agent or representative of the other. Neither Party has any authority to, and is expressly prohibited from, creating or assuming any obligation on behalf of the other, and from otherwise making or extending any representation, warranty, guarantee or other commitment for or on behalf of the other.

12.11 Survival of Certain Provisions. Any provisions of the Agreement that by their nature are intended to survive any expiration or termination will survive expiration or termination of the Agreement for any reason. The terms set forth in the sections entitled License Limitations, Ownership, Confidentiality, Warranty Disclaimer, Limitation of Damages and Remedies shall survive any termination of the Agreement.

These Software License Agreement – Terms and Conditions (the “Terms and Conditions”) are made and are effective as of the date set forth on the SOFTWARE LICENSE ORDER FORM (“Order”) signed by the parties thereto, that incorporates these terms and conditions by reference. In these Terms and Conditions (also referred to herein as the “Agreement”), Scality and the Customer identified in the Order are referred to herein collectively as the “Parties” and individually as a “Party”.

1. DEFINITIONS. Certain capitalized terms, if not otherwise defined above, shall have the meanings set forth below:

1.1 “Agreement” means the Order and these terms and conditions. To the extent of any conflict between them, none being intended, the Order terms shall control.

1.2 “Customer” means the entity that has licensed the Software under an Order.

1.3 “DCS” means Dedicated Care Support, which is provided under the separate Dedicated Care Support Services Terms and Conditions, and is only provided if the Order includes such services.

1.4 “Derivative Works” means a revision, enhancement, modification, translation, abridgment, condensation, expansion, new releases, or any other form in which all or part of any software included in the Software may be recast, transferred or adapted.

1.5 “Documentation” means all user manuals and user documentation associated with the Software that is made available to Customer by Scality pursuant to the terms of the Agreement.

1.6 “Effective Date” means the effective date as set forth on the Order.

1.7 “Fees” means all amounts owed by Customer to Scality under the Agreement.

1.8 “Hardware License” means a license to the Software that is tied to a given hardware device for the usable storage capacity (HDD and SSD) of the device measured in terabytes as specified on an Order and licensed for the life of that device.

1.9 “Intellectual Property Rights” means all intellectual and industrial property rights recognized in any jurisdiction, including copyrights, mask work rights, moral rights, trade secrets, patent rights, rights in inventions, trademarks, trade names and service marks (including without limitation applications for, and registrations, extensions, renewals, and re-issuances of, the foregoing).

1.10 “License” means licenses for Production Use and Non-Production Use provided by Scality to Customer pursuant to the Agreement as either a Hardware License or a Term License.

1.11 “Non-Production Use” means any use other than the Production Use.

1.12 “Production Use” means any live orproductionuse, or any direct or indirect use of the Software which is in live or production use or serving its final or intended or revenue-generating purpose.

1.13 “Products” means, collectively, the Software and Documentation.

1.14 “Services” means the services provided by Scality to Customer pursuant to the Agreement.

1.15 “Scality” means the entity listed in the Order that is licensing the Software to the Customer.

1.16 “Software” means the object code version of the software identified and defined as Software in each Order, such as the RING software and the applicable connectors ordered. The term “Software” includes, without limitation, any patches, updates, improvements, additions, enhancements and other modifications that may subsequently be made available to Customer pursuant to the terms of the Agreement. The term “Software” does not include Third Party Software.

1.17 “Supported Platform” means an operating system listed on the Scality website (at www.scality.com) as one with which the Software is compatible.

1.18 “Storage Capacity” means the amount of usable storage capacity (HDD and SSD) of the system (measured in terabytes) that may be used in connection with the Products, where usable storage capacity is calculated by subtracting from total raw capacity (HDD and SSD of all hardware on which the Products are installed) the data protection overhead required to protect usable data on such hardware.

1.19 “Term” means the period of time set forth in the Order for a Term License and the life of the specific storage drive (HDD and SSD) as specified on an Order for a Hardware License.

1.20 “Term License” means a license to the Software for a specific period of time as set forth on the Order.

1.21 “Third Party Software” means the object code version of the software identified in an Order as Third Party Software or other software identified in the Documentation as Third Party Software that is included with the Software, including, but not limited to, open source software.

2. NATURE OF THE TERMS AND CONDITIONS

The Agreement describes the Products (and associated Licenses), Services, and associated terms and conditions available for purchase by Customer. Scality is not obligated to provide, and Customer is not obligated to license or purchase (as applicable), any Products and/or Services unless and until the Parties execute the Order. These Terms and Conditions are, and shall be deemed to be, incorporated by reference into each such Order. Services will be provided by Scality using such systems, tools, and other means that it determines.

3. INTELLECTUAL PROPERTY RIGHTS; LICENSE

3.1 License. For a Hardware License, subject to the terms of the Agreement and any restrictions set forth in the Order, Scality hereby grants to Customer a worldwide, limited, non-exclusive and non-transferable license, during the Term set forth on an Order: (a) to use the object code version of the Software and the Third Party Software solely for Customer’s Production Use or Non-Production Use with no right to sublicense or otherwise offer the Software on a stand-alone basis for up to the number of storage devices identified on the Order Form, up to the Storage Capacity specified on the Order, at the location(s) set forth on the Order; and (b) to use the Documentation solely in connection with the use of the Software as authorized above. For clarity, Customer may make copies of the Software for use in Customer’s Production Use and/or Non-Production Use, subject to Section 3.2 below. Customer may make a reasonable number of copies of the Documentation for its internal use. The Third Party Software may contain additional terms as identified in an Order or the Documentation for open source software. For a Term License, subject to the terms of the Agreement and any restrictions set forth in the Order, Scality hereby grants to Customer a worldwide, limited, non-exclusive and non-transferable license, during the Term set forth on an Order: (a) to use the object code version of the Software and the Third Party Software solely for Customer’s Production Use or Non-Production Use with no right to sublicense or otherwise offer the Software on a stand-alone basis for up to the Storage Capacity identified on the Order Form (if the Order fails to specify a specific amount of storage the storage limit shall be one terabyte) at the location(s) set forth on the Order; and (b) to use the Documentation solely in connection with the use of the Software as authorized above. For clarity, Customer may make copies of the Software for use in Customer’s Production Use and/or Non-Production Use, subject to Section 3.2 below. Customer may make a reasonable number of copies of the Documentation for its internal use. The Third Party Software may contain additional terms as identified in an Order or the Documentation for open source software.

3.2 License Limitations. Except to the extent specifically permitted by Section 3.1, Customer may not (i) reproduce, modify, translate or create Derivative Works of all or any part of the Products; (ii) rent, lease, loan or otherwise distribute the Products or any Third Party Software to any third party or otherwise allow a third party to use the Products or any Third Party Software (either by way of remote terminal or through other computer facilities); (iii) copy, decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, processes or algorithms of all or any part of the Software by any legal or technical means whatsoever, nor disclose any of the foregoing; (iv) move the Software or any Third Party Software to a location other than the initial location set forth on the initial Order, without the prior written approval from Scality; or (v) publish or disclose to any third party any opinions relating to, or the results of any test or benchmarking or comparative study of the Software or any Third Party Software (whether or not obtained or performed with Scality’s assistance), or use such results for its own competing software development activities; or (vi) remove any product identification, proprietary, copyright or other notices contained in the Products or the Third Party Software. Customer may not sublicense any of its license rights to the Products or any Third Party Software (including without limitation the right to sublicense the Products to customers of Customer or other third parties). The Software may only be used with the Supported Platforms identified in the Order.

3.3 Professional Services. Scality will not perform any specific development, training or integration services for Customer, unless specifically agreed in a separate agreement between the Parties.

3.4 Title; Ownership. Scality owns and retains all right, title and interest, including without limitation Intellectual Property Rights, in and to the Products and Scality Confidential Information, and any other intellectual property that results from the performance of the Services other than Customer Confidential Information. The third parties identified in the Documentation and/or an Order for all Third Party Software retain ownership of their respective Third Party Software. All rights not expressly granted under the Agreement by Scality are hereby reserved by Scality. All copyrights, trade secret rights, trademarks, logos or other words identifying Customer or relating to their end user’s data or information are and shall remain the exclusive property of the Customer or its or their end user’s (or its or their licensors).

4. MAINTENANCE & SUPPORT SERVICES.

4.1 Maintenance and Support. All Maintenance and Support shall be provided under the Maintenance and Support Terms and Conditions incorporated into the Order.

4.2 Remote Monitoring and Diagnosis. The Software contains functionality that allows Scality to remotely monitor the Software, however, such functionality is neither enabled nor used unless Customer has ordered and accepted DCS. If Customer has ordered DCS, Customer hereby grants Scality the right to monitor and gain access to the Software for the limited purposes set forth in this Section and to provide DCS services. Customer acknowledges that the Software and its monitoring tools collect and transmit certain status information to Scality regarding the installation and operation of the Software. As part of Scality’s monitoring tools, there is a real-time monitoring, alarming and capacity planning solution. On the installation, the information indicates to Scality whether installation of the Software was successfully completed as well as whether the Software has encountered an error within the installation process operated by Customer. This information is collected by Scality for the purpose of evaluating and improving Software performance and installation success rate. On operation of the Software, the information concerns Software global status and its components capabilities, operations, capacity trends and health. Scality collects and remotely monitor the Software for the limited purpose of improving Software performance and service quality provided to Customer. The status information could contain personally identifiable information only if such information is included in the name of the file or folder encountered by the Software at the time it encounters an error. This information shall not be correlated with any personally identifiable information and shall not be considered as a process of personal data. The Software shall also collect and transmit to Scality other information which may be used for license administration, software analysis, and for improving software functionality. Scality shall also have a right to audit the installed Software to obtain such information, such audit to be performed remotely, if remote access is possible, and otherwise on-site; provided that if such audit is to be performed on-site, then Scality will provide reasonable advance notice of same, and such audit shall occur during normal business hours. The information collected by Scality pursuant to the present section shall not be correlated by Scality with any personally identifiable information.

5. FEES; PAYMENT

5.1 Fees. In consideration for the licenses granted to Customer and the performance of Scality’s obligations under the Agreement or the DCS, Customer shall pay to Scality, without offset or deduction, certain Fees, in such amounts as may be determined by reference to an Order. Unless otherwise provided in such Order, all such Fees shall be due and payable within thirty (30) calendar days after date of the Order for Products or the date of the Scality invoice for all other Fees. Customer will pay a late payment interest equal to the European Central Bank main refinancing operations rate plus ten (10) basis points per annum, on all amounts not paid in accordance with this Section 5.1; this interest will begin to accrue on the day after the payment due date and will accumulate on the outstanding balance on a daily basis until paid in full. Additionally, Customer will pay a flat rate recovery cost indemnity in the minimum amount of €. 40 per unpaid invoice as well as all other costs related to the collection of payments.

5.2 Special Terms for Hardware Licenses. If the Products are purchased under a Hardware License, then each time a new storage drive is added to the system (measuring it in TB capacity for usable data), the corresponding license Fee becomes due, as per Scality’s pricing policy. Customer will provide Scality a report of the actual capacity of the Customer system on a quarterly basis, including a report on the new hardware introduced during the previous quarter. Scality will “true up” accordingly the license Fees which are due on that basis and will invoice the Customer as necessary. If a given storage drive in a Customer deployment of a system containing Scality Software is being decommissioned and replaced by a new drive with a higher capacity, the purchase of a new license would become necessary, as per Scality pricing policy.

5.3 Taxes. All amounts payable under the Agreement shall exclude all applicable value added, sales, use and other taxes and all applicable export and import fees, customs duties and similar charges. Customer will be responsible for payment of all such taxes (other than taxes based on Scality’s income), fees, duties and charges, and any related penalties and interest, arising from the payment of any Fees hereunder, the grant of license rights hereunder, or the delivery of Services. Customer will make all payments required hereunder to Scality free and clear of, and without reduction for, any withholding taxes. If Customer have an obligation to withhold any amounts under any law or tax regime (other than income tax), Customer will gross up the payments so that Scality receives the amount actually quoted and invoiced. If Scality has a legal obligation to pay or collect taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provide Scality with a valid tax exemption certificate authorized by the appropriate taxing authority.

5.4 Disputed Charges. Customer will pay undisputed amounts when due. If Customer disputes in good faith any amount owed by Customer, Customer may withhold such disputed amount (up to a total for all disputed amounts of the total amount owed by Customer for the three (3) immediately preceding calendar months) so long as Customer provides a written notice of dispute by the due date for the disputed amount including a detailed explanation of the basis for Customer’s dispute. If Scality does not agree with Customer’s reasons for disputing any amount, the dispute will then be resolved under Section 11.1, however, the Parties will in good faith attempt to resolve such disputes within ninety (90) days of Scality’s receipt of Customer’s notice of dispute. If the dispute on any charge is resolved in favor of Scality, such charges will be due and payable within ten (10) days of such resolution, including applicable late fees from the original due date of payment by Customer for such charges.

5.5 Assurances. If Customer fails to pay any undisputed amount when due, then in addition to assessing interest Scality may (a) terminate any or all Licenses until paid; (b) suspend some or all Services until paid, including services provided pursuant to the DCS; and/or (c) require reasonable payment assurances (“Assurances”) including pre-payment of Fees, guaranties or letters of credit and condition continuing Licenses and Services on receipt of such Assurances. Upon thirty (30) days’ notice, Scality may require Assurances as a condition to continuing to provide Licenses and Services based on any material adverse change in the financial condition of Customer.

5.6 Audit. For the term of the Agreement and one (1) year thereafter, (a) Customer will maintain all books, records, contracts and accounts relating to its use of the Products, the receipt of Services, its payment of Fees and general compliance under the Agreement, and (b) Scality will have the right, at its own expense and under reasonable conditions of time and place, to audit and copy any or all of such records; provided however, that in no event shall Scality be permitted to engage in more than two (2) audits in any given calendar year. If any such audit discloses a breach of the Agreement or underpayment of any amounts by Customer or its employees or agents, Customer will, in addition to such other rights and remedies as may be available to Scality as the result of such breach, pay to Scality the reasonable cost of such audit and copying. Scality will use information obtained from such audit only to verify and enforce Customer’s compliance with the terms of the Agreement, to comply with any governmental reporting requirements and for such other purposes as required by law.

6. CONFIDENTIALITY

6.1 Definition. The term “Confidential Information” means information that is of a confidential, proprietary, or trade secret nature and is furnished or disclosed by one Party (the “Discloser”) to the other Party (the “Recipient”) under the Agreement (including information exchanged in contemplation of entering into the Agreement) that is: (a) marked as confidential; (b) if orally or visually disclosed, identified as confidential upon disclosure; or (c) due to its character, nature, or method of transmittal, information that a reasonable person under like circumstances would treat as confidential.

6.2 Protection of Confidential Information. Each Party acknowledges that it may be furnished, receive or otherwise have access to Confidential Information of the other Party in connection with the Agreement which shall remain the property of the Discloser. Each Party agrees that Confidential Information received from the other Party: (a) will only be used as necessary to achieve the purposes and objectives of the Agreement; (b) will not be disclosed to any third party without prior written approval of Discloser; (c) may only be disclosed within the receiving organization on a “need-to-know” basis to persons who have been advised of the existence of the Agreement and agree to be bound by its terms; and (d) will be treated with at least the same degree of care as Recipient treats its own Confidential Information, but in no event with less than a reasonable degree of care. Furthermore, Recipient agrees that it will not, and will not permit a third party to, (i) copy, decompile, reverse engineer, disassemble or create derivative works any Confidential Information except as specifically permitted under the Agreement or otherwise with the advance written consent of Discloser or (ii) alter, remove, or suppress any copyright, trademark, confidentiality, or other proprietary notices, marks or any legends placed, included, affixed, embedded or otherwise appearing in or on any Confidential Information, Software or Documentation or any related material; or fail to ensure that all such notices and legends appear on all full or partial copies of the Confidential Information, Software, Documentation or any related material. Recipient will notify Discloser promptly of any unauthorized use or disclosure of Confidential Information and cooperate with and assist Discloser in every reasonable way to stop or minimize such unauthorized use or disclosure.

6.3 Exceptions. “Confidential Information” will not include information that: (i) is or becomes known to the public without breach of the Agreement by Recipient; (ii) is already known to or in the possession of Recipient at the time of disclosure; (iii) is independently developed by or for Recipient as evidenced by Recipient’s own files and records; (iv) is rightfully obtained by Recipient from a third party that was lawfully in possession of the information and had the right to disclose the same; or (v) the Parties mutually agree in writing to release from the terms of the Agreement. Confidential information will not be deemed to be publicly known merely because all or a portion of such information is embodied in general disclosures or because individual features and/or components (or the combination of such features and components) are or become known to the public.

6.4 Exclusions. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law or the requirements of the Securities and Exchange Commission (“SEC”) pursuant to the rules and regulations promulgated by the SEC, as well as to the New York Stock Exchange and any other regulator charged with the administration, oversight or enforcement of regulations applicable to any business conducted by Scality, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order or otherwise maintain the confidentiality of the information to be disclosed; or (b) to establish a Party’s rights under the Agreement, including to make such court filings as it may be required to do.

7. WARRANTY

7.1 Scality Warranties. Scality represents and warrants that the Software will conform in all material respects to the Documentation for a period of ninety (90) days after the Software is delivered to Customer pursuant to the Agreement, provided that such warranty will not apply to failures to conform to the Documentation to the extent such failures arise, in whole or in part, from (a) any use of the Software other than in accordance with the Documentation, (b) modification of the Software by Customer or any third party, or (c) any combination of the Software with software, hardware or other technology not provided by Scality under the Agreement or specified by Scality as not interoperable with the Software. For all warranty claims made by Customer during the warranty period, Scality will use commercially reasonable efforts to resolve, at no charge to Customer, any such non-conformities. This is Customer’s sole and exclusive remedy for a breach of this warranty.

7.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY WARRANTED IN SECTION 7.1 OF THE AGREEMENT, THE PRODUCTS, AND ANY OTHER MATERIALS (INCLUDING THIRD PARTY SOFTWARE) AND/OR SERVICES PROVIDED BY SCALITY ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND SCALITY AND THEIR SUPPLIERS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF QUIET ENJOYMENT, ACCURACY OF DATA, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. NO WARRANTY IS MADE BY SCALITY ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. SCALITY DOES NOT WARRANT THAT THE PRODUCTS OR SERVICES PROVIDED UNDER THE AGREEMENT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

8. TERM AND TERMINATION

8.1 Term. The Agreement shall become effective upon the Effective Date and shall remain in full force and effect until the expiration or termination of all Terms set forth in the Order into which these Terms and Conditions were incorporated unless terminated earlier as provided for under the Agreement.

8.2 Termination by Either Party. A Party may terminate the Agreement if the other Party is in breach of any material obligation under the Agreement and fails to remedy such failure or breach within thirty (30) days after receipt of written notice of such breach from the non-breaching Party, including, but not limited to failure to timely pay the Fees.

8.3 Effect of Termination/Expiration. If the Agreement is terminated by either Party, or otherwise expires, then (a) within ten (10) days of the effective date of termination or the date of expiration, as applicable, Customer will certify in writing to Scality that the Products and all other Confidential Information in the possession of Customer have been destroyed or otherwise secured in accordance with Section 6; (b) any License rights granted by Scality under the applicable Order will immediately terminate as of the effective date of termination or the date of expiration, as applicable; (c) Customer will promptly pay all unpaid amounts accrued under the terminated or expired Order; (d) each Party shall return or destroy all Confidential Information of the other Party in its possession; and (e) Scality will have no further responsibility or liability thereunder as of the effective date of termination or the date of expiration, as applicable.

9. INDEMNITY

9.1 Scality Indemnity. Scality shall defend, indemnify, and hold Customer harmless against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities awarded to a third party arising out of any claim by a third party that the Products as delivered by Scality infringes or misappropriates, as applicable, any patent issued as of the Effective Date or any copyrights or trade secrets under applicable laws of any jurisdiction within the United States or within France, provided that Customer gives Scality (a) prompt written notice of such claim; (b) sole authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as Scality may reasonably request, at Scality’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Scality shall have no obligation or liability to the extent that the alleged infringement arises from (1) the combination, operation, or use of the Products with products, services, information, materials, technologies, business methods or processes not furnished by Scality; (2) modifications to the Products, which modifications are not made by Scality; (3) failure to use updates to the Products provided by Scality; (4) misuse of the Software or use of the Software except in accordance with the Documentation; or (5) breach of confidentiality provision (circumstances under the foregoing clauses (1), (2), (3), (4), and (5), collectively, “Customer Indemnity Responsibilities”). Upon the occurrence of any claim for which indemnity is or may be due under Section 9.2, or in the event that Scality believes that such a claim is likely, Scality may, at its option (i) appropriately modify the Product so that it becomes non-infringing, or substitute functionally equivalent software or services; (ii) obtain a license to the applicable third-party intellectual property rights; or (iii) terminate the Agreement on written notice to Customer and refund to Customer any unused license Fees under the then current Order Term(s). The obligations set forth in this Section 9 shall constitute Scality’s entire liability and Customer’s sole remedy for any actual or alleged infringement or misappropriation.

9.2 Indemnification by Customer. Customer shall indemnify, hold harmless, and defend Scality from and against all losses, expenses (including reasonable attorneys’ fees), damages, and liabilities awarded to a third party resulting from a claim by a third party arising from or in connection with Customer Indemnity Responsibilities. Scality agrees to give Customer (a) prompt written notice of such claim; (b) sole authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as Customer may reasonably request, at Customer’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Customer shall not settle any third-party claim against Scality unless such settlement completely and forever releases Scality with respect thereto or unless Scality provides its prior written consent to such settlement. In any action for which Customer provides defense on behalf of Scality, Scality may participate in such defense at its own expense by counsel of its choice.

10. LIMIT OF LIABILITY

10.1 Limitation of Liability. If Customer should become entitled to claim damages from Scality (including for breach of contract, breach of warranty, negligence or other tort claim), Scality will be liable only for the amount of Customer’s actual direct damages, not to exceed (in the aggregate for all claims) the amount paid by Customer to Scality for the specifically deployed Product that caused the liability and is the subject of the claim. In no event will Scality’s aggregate liability for all claims arising under or relating to any single Order exceed the total amount paid to Scality by Customer pursuant to such Order for the twelve (12) months prior to month in which the event giving rise to liability occurred under such Order.

10.2 Consequential Damages. EXCEPT WITH RESPECT TO (A) BREACHES OF CUSTOMER’S OBLIGATIONS SET FORTH IN SECTION 6 (CONFIDENTIALITY) AND SECTION 9 (INDEMNITY); AND (B) DAMAGES ATTRIBUTABLE TO CUSTOMER’S MISAPPROPRIATION, VIOLATION OR INFRINGEMENT OF SCALITY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY, OR SCALITY’S SUPPLIERS, BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, DAMAGES RESULTING FROM LOSS OF DATA, SECURITY BREACH, PROPERTY DAMAGE, LOST REVENUE, LOST SAVINGS OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, THE PERFORMANCE OF THE SOFTWARE OR SCALITY’S PERFORMANCE OF SERVICES OR OF ANY OTHER OBLIGATIONS RELATING TO THE AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.3 The limitations of liability set forth in this Section 10 will survive and apply notwithstanding the failure of any limited or exclusive remedy for breach of warranty set forth in the Agreement.

11. LAWS AND DISPUTE RESOLUTION

11.1 Choice of Law. The Agreement will be governed by the laws of the State of France, without regard to any provision of French law that would require or permit the application of the substantive law of any other jurisdiction. The Agreement will not be subject to (a) the United Nations Convention on Contracts for the International Sale of Goods; or (b) any version of the Uniform Computer Information Transactions Act (UCITA) as it is, or may be, adopted in any state.

11.2 The Parties hereby irrevocably consent to the exclusive jurisdiction of the Paris Courts, including in case of claim from third parties.

11.3 Informal Dispute Resolution. At the written request of either Party, the Parties will attempt to resolve any dispute arising under or relating to the Agreement through the informal means described in this Section 11.2. Each Party will appoint a senior management representative who does not devote substantially all of his or her time to performance under the Agreement. The representatives will furnish to each other all non-privileged information with respect to the dispute that the Parties believe to be appropriate and germane. The representatives will negotiate in an effort to resolve the dispute without the necessity of any formal proceeding. Formal proceedings, for the resolution of the dispute may not be commenced until the earlier of: (a)the designated representatives conclude that resolution through continued negotiation does not appear likely; or (b)thirty (30) calendar days have passed since the initial request to negotiate the dispute was made; provided, however, that a Party may file earlier to avoid the expiration of any applicable limitations period, to preserve a superior position with respect to other creditors, or to apply for injunctive or equitable relief.

11.4 Compliance with Laws. Each Party, at its sole expense, will perform its obligations and exercise its rights in a manner that complies with laws. If a charge is made that a Party is not complying with any such laws, such Party will promptly notify the other Party of such charges in writing. Each Party will comply with the export laws and regulations of France and other applicable jurisdictions. Each Party will, at its sole cost and expense, obtain and maintain in effect all permits, licenses, approvals and other consents related to its obligations under the Agreement. Without limiting the foregoing, Customer will be required to obtain all permits, licenses and other consents necessary for the development and distribution of the Products contemplated by any Order. If Customer violates this Section 11.3, Scality may terminate the Agreement upon notice.

12. GENERAL

12.1 Entire Agreement. The Agreement (the Order and these Terms and Conditions) constitute the entire agreement between the Parties, and supersedes all other prior or contemporaneous communications between the Parties (whether written or oral) relating to the subject matter of the Agreement. The Agreement may be modified or amended solely in a writing signed by both Parties.

12.2 Assignment. Customer may not assign or otherwise transfer any right or obligation set forth in the Agreement (whether by operation of law or otherwise) without Scality’s prior written consent, which consent shall not be unreasonably delayed, conditioned or withheld; provided, however, that Customer may assign the Agreement to any company which controls, is controlled by, or is under common control with Customer, or in the event of a merger, acquisition or sale of all or substantially all of the assets thereof. Notwithstanding the foregoing, Customer may not assign or otherwise transfer any right or obligation set forth in the Agreement (whether by operation of law or otherwise) without Scality’s prior written consent if the assignee or transferee is a competitor of, or in competition with, Scality. Any purported assignment in violation of the preceding sentence will be void. Scality may assign all or part of its rights or obligations set forth in the Agreement (whether by operation of law or otherwise) and all sums due or to become due pursuant to the Agreement for any reason. The Agreement will be binding upon the Parties’ respective successors and permitted assigns.

12.3 Order of Precedence; Interpretation. If there is any conflict between the general terms and conditions of the Agreement and the terms contained in any Order, the Parties will attempt to read any such conflicting provisions consistently, however, in the event such a consistent reading cannot be accomplished, the Order will take precedence over such other terms solely with respect to such Order and solely with respect to such conflicting terms. The Agreement has been mutually negotiated, and is deemed to have been prepared at arm’s length at the joint direction and construction of the Parties and is to be interpreted in accordance with its terms without favor to either Party.

12.4 Notice. Any legal notice or other communication required or permitted to be made or given by either Party pursuant to the Agreement will be in writing, in French or in English, and will be deemed to have been duly given: (a)five (5) business days after the date of mailing if sent by registered mail, postage prepaid, with return receipt requested; (b)when transmitted if sent by facsimile, provided a confirmation of transmission is produced by the sending machine and a copy of the notice is promptly sent by another means specified in this Section 12.4; or (c)when delivered if delivered personally or sent by express courier service. All notices will be sent to the other Party at its address as set forth in the Order. Each party consents to receive communications from the other electronically. Scality may communicate with Customer by e-mail or posting notices on the Scality web site. Customer agrees that all agreements, notices, disclosures and other communications that Scality provides to it electronically satisfy any legal requirement that such communications be in writing.

12.5 Severability. The provisions of the Agreement will be deemed severable, and the unenforceability of any one or more provisions will not affect the enforceability of any other provisions. In addition, if any provision of the Agreement, for any reason, is declared to be unenforceable, the Parties will substitute an enforceable provision that, to the maximum extent possible under applicable law, preserves the original intentions and economic positions of the Parties.

12.6 No Waiver. No failure or delay by a Party in exercising any right, power or remedy will operate as a waiver of that right, power or remedy, and no waiver will be effective unless it is in writing and signed by the waiving Party. If a Party waives any right, power or remedy, the waiver will not waive any successive or other right, power or remedy the Party may have under the Agreement.

12.7 Third Parties. Except for the suppliers of Third Party Software as contemplated in the Agreement, the Agreement is not intended nor will it be interpreted to confer any benefit, right or privilege in any person or entity not a party to the Agreement.

12.8 Marketing. Customer grants Scality the right to (a) identify Customer as a Scality Customer, and (b) with the prior approval in writing by Customer, which shall not be unreasonably withheld, use Customer’s name, mark and/or logo on Scality’s website and/or in Scality marketing materials.

12.9 Excusable Delay. Except for the obligations related to Confidential Information, License rights and restrictions, and payment, neither Party is responsible for any failure to comply with the terms of the Agreement or any Order where the failure or delay is due to causes beyond the reasonable control of the Party.

12.10 Independent Relationship. The relationship established by the Agreement is solely that of licensor and licensee, and each Party will act at all times as an independent party for its own account. Neither Party may represent or hold itself out as an agent or representative of the other. Neither Party has any authority to, and is expressly prohibited from, creating or assuming any obligation on behalf of the other, and from otherwise making or extending any representation, warranty, guarantee or other commitment for or on behalf of the other.

12.11 Survival of Certain Provisions. Any provisions of the Agreement that by their nature are intended to survive any expiration or termination will survive expiration or termination of the Agreement for any reason. The terms set forth in the sections entitled License Limitations, Ownership, Confidentiality, Warranty Disclaimer, Limitation of Damages and Remedies shall survive any termination of the Agreement.

SOFTWARE LICENSE AGREEMENT – TERMS AND CONDITIONS (EUROPEAN UNION / NON US)

These Software License Agreement – Terms and Conditions (the “Terms and Conditions”) are made and are effective as of the date set forth on the SOFTWARE LICENSE ORDER FORM (“Order”) signed by the parties thereto, that incorporates these terms and conditions by reference. In these Terms and Conditions (also referred to herein as the “Agreement”), Scality and the Customer identified in the Order are referred to herein collectively as the “Parties” and individually as a “Party”.

1. DEFINITIONS. Certain capitalized terms, if not otherwise defined above, shall have the meanings set forth below:

1.1 “Agreement” means the Order and these terms and conditions. To the extent of any conflict between them, none being intended, the Order terms shall control.

1.2 “Customer” means the entity that has licensed the Software under an Order.

1.3 “DCS” means Dedicated Care Support, which is provided under the separate Dedicated Care Support Services Terms and Conditions, and is only provided if the Order includes such services.

1.4 “Derivative Works” means a revision, enhancement, modification, translation, abridgment, condensation, expansion, new releases, or any other form in which all or part of any software included in the Software may be recast, transferred or adapted.

1.5 “Documentation” means all user manuals and user documentation associated with the Software that is made available to Customer by Scality pursuant to the terms of the Agreement.

1.6 “Effective Date” means the effective date as set forth on the Order.

1.7 “Fees” means all amounts owed by Customer to Scality under the Agreement.

1.8 “Hardware License” means a license to the Software that is tied to a given hardware device for the usable storage capacity (HDD and SSD) of the device measured in terabytes as specified on an Order and licensed for the life of that device.

1.9 “Intellectual Property Rights” means all intellectual and industrial property rights recognized in any jurisdiction, including copyrights, mask work rights, moral rights, trade secrets, patent rights, rights in inventions, trademarks, trade names and service marks (including without limitation applications for, and registrations, extensions, renewals, and re-issuances of, the foregoing).

1.10 “License” means licenses for Production Use and Non-Production Use provided by Scality to Customer pursuant to the Agreement as either a Hardware License or a Term License.

1.11 “Non-Production Use” means any use other than the Production Use.

1.12 “Production Use” means any live orproductionuse, or any direct or indirect use of the Software which is in live or production use or serving its final or intended or revenue-generating purpose.

1.13 “Products” means, collectively, the Software and Documentation.

1.14 “Services” means the services provided by Scality to Customer pursuant to the Agreement.

1.15 “Scality” means the entity listed in the Order that is licensing the Software to the Customer.

1.16 “Software” means the object code version of the software identified and defined as Software in each Order, such as the RING software and the applicable connectors ordered. The term “Software” includes, without limitation, any patches, updates, improvements, additions, enhancements and other modifications that may subsequently be made available to Customer pursuant to the terms of the Agreement. The term “Software” does not include Third Party Software.

1.17 “Supported Platform” means an operating system listed on the Scality website (at www.scality.com) as one with which the Software is compatible.

1.18 “Storage Capacity” means the amount of usable storage capacity (HDD and SSD) of the system (measured in terabytes) that may be used in connection with the Products, where usable storage capacity is calculated by subtracting from total raw capacity (HDD and SSD of all hardware on which the Products are installed) the data protection overhead required to protect usable data on such hardware.

1.19 “Term” means the period of time set forth in the Order for a Term License and the life of the specific storage drive (HDD and SSD) as specified on an Order for a Hardware License.

1.20 “Term License” means a license to the Software for a specific period of time as set forth on the Order.

1.21 “Third Party Software” means the object code version of the software identified in an Order as Third Party Software or other software identified in the Documentation as Third Party Software that is included with the Software, including, but not limited to, open source software.

2. NATURE OF THE TERMS AND CONDITIONS

The Agreement describes the Products (and associated Licenses), Services, and associated terms and conditions available for purchase by Customer. Scality is not obligated to provide, and Customer is not obligated to license or purchase (as applicable), any Products and/or Services unless and until the Parties execute the Order. These Terms and Conditions are, and shall be deemed to be, incorporated by reference into each such Order. Services will be provided by Scality using such systems, tools, and other means that it determines.

3. INTELLECTUAL PROPERTY RIGHTS; LICENSE

3.1 License. For a Hardware License, subject to the terms of the Agreement and any restrictions set forth in the Order, Scality hereby grants to Customer a worldwide, limited, non-exclusive and non-transferable license, during the Term set forth on an Order: (a) to use the object code version of the Software and the Third Party Software solely for Customer’s Production Use or Non-Production Use with no right to sublicense or otherwise offer the Software on a stand-alone basis for up to the number of storage devices identified on the Order Form, up to the Storage Capacity specified on the Order, at the location(s) set forth on the Order; and (b) to use the Documentation solely in connection with the use of the Software as authorized above. For clarity, Customer may make copies of the Software for use in Customer’s Production Use and/or Non-Production Use, subject to Section 3.2 below. Customer may make a reasonable number of copies of the Documentation for its internal use. The Third Party Software may contain additional terms as identified in an Order or the Documentation for open source software. For a Term License, subject to the terms of the Agreement and any restrictions set forth in the Order, Scality hereby grants to Customer a worldwide, limited, non-exclusive and non-transferable license, during the Term set forth on an Order: (a) to use the object code version of the Software and the Third Party Software solely for Customer’s Production Use or Non-Production Use with no right to sublicense or otherwise offer the Software on a stand-alone basis for up to the Storage Capacity identified on the Order Form (if the Order fails to specify a specific amount of storage the storage limit shall be one terabyte) at the location(s) set forth on the Order; and (b) to use the Documentation solely in connection with the use of the Software as authorized above. For clarity, Customer may make copies of the Software for use in Customer’s Production Use and/or Non-Production Use, subject to Section 3.2 below. Customer may make a reasonable number of copies of the Documentation for its internal use. The Third Party Software may contain additional terms as identified in an Order or the Documentation for open source software.

3.2 License Limitations. Except to the extent specifically permitted by Section 3.1, Customer may not (i) reproduce, modify, translate or create Derivative Works of all or any part of the Products; (ii) rent, lease, loan or otherwise distribute the Products or any Third Party Software to any third party or otherwise allow a third party to use the Products or any Third Party Software (either by way of remote terminal or through other computer facilities); (iii) copy, decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, processes or algorithms of all or any part of the Software by any legal or technical means whatsoever, nor disclose any of the foregoing; (iv) move the Software or any Third Party Software to a location other than the initial location set forth on the initial Order, without the prior written approval from Scality; or (v) publish or disclose to any third party any opinions relating to, or the results of any test or benchmarking or comparative study of the Software or any Third Party Software (whether or not obtained or performed with Scality’s assistance), or use such results for its own competing software development activities; or (vi) remove any product identification, proprietary, copyright or other notices contained in the Products or the Third Party Software. Customer may not sublicense any of its license rights to the Products or any Third Party Software (including without limitation the right to sublicense the Products to customers of Customer or other third parties). The Software may only be used with the Supported Platforms identified in the Order.

3.3 Professional Services. Scality will not perform any specific development, training or integration services for Customer, unless specifically agreed in a separate agreement between the Parties.

3.4 Title; Ownership. Scality owns and retains all right, title and interest, including without limitation Intellectual Property Rights, in and to the Products and Scality Confidential Information, and any other intellectual property that results from the performance of the Services other than Customer Confidential Information. The third parties identified in the Documentation and/or an Order for all Third Party Software retain ownership of their respective Third Party Software. All rights not expressly granted under the Agreement by Scality are hereby reserved by Scality. All copyrights, trade secret rights, trademarks, logos or other words identifying Customer or relating to their end user’s data or information are and shall remain the exclusive property of the Customer or its or their end user’s (or its or their licensors).

4. MAINTENANCE & SUPPORT SERVICES.

4.1 Maintenance and Support. All Maintenance and Support shall be provided under the Maintenance and Support Terms and Conditions incorporated into the Order.

4.2 Remote Monitoring and Diagnosis. The Software contains functionality that allows Scality to remotely monitor the Software, however, such functionality is neither enabled nor used unless Customer has ordered and accepted DCS. If Customer has ordered DCS, Customer hereby grants Scality the right to monitor and gain access to the Software for the limited purposes set forth in this Section and to provide DCS services. Customer acknowledges that the Software and its monitoring tools collect and transmit certain status information to Scality regarding the installation and operation of the Software. As part of Scality’s monitoring tools, there is a real-time monitoring, alarming and capacity planning solution. On the installation, the information indicates to Scality whether installation of the Software was successfully completed as well as whether the Software has encountered an error within the installation process operated by Customer. This information is collected by Scality for the purpose of evaluating and improving Software performance and installation success rate. On operation of the Software, the information concerns Software global status and its components capabilities, operations, capacity trends and health. Scality collects and remotely monitor the Software for the limited purpose of improving Software performance and service quality provided to Customer. The status information could contain personally identifiable information only if such information is included in the name of the file or folder encountered by the Software at the time it encounters an error. This information shall not be correlated with any personally identifiable information and shall not be considered as a process of personal data. The Software shall also collect and transmit to Scality other information which may be used for license administration, software analysis, and for improving software functionality. Scality shall also have a right to audit the installed Software to obtain such information, such audit to be performed remotely, if remote access is possible, and otherwise on-site; provided that if such audit is to be performed on-site, then Scality will provide reasonable advance notice of same, and such audit shall occur during normal business hours. The information collected by Scality pursuant to the present section shall not be correlated by Scality with any personally identifiable information.

5. FEES; PAYMENT

5.1 Fees. In consideration for the licenses granted to Customer and the performance of Scality’s obligations under the Agreement or the DCS, Customer shall pay to Scality, without offset or deduction, certain Fees, in such amounts as may be determined by reference to an Order. Unless otherwise provided in such Order, all such Fees shall be due and payable within thirty (30) calendar days after date of the Order for Products or the date of the Scality invoice for all other Fees. Customer will pay a late payment interest equal to the European Central Bank main refinancing operations rate plus ten (10) basis points per annum, on all amounts not paid in accordance with this Section 5.1; this interest will begin to accrue on the day after the payment due date and will accumulate on the outstanding balance on a daily basis until paid in full. Additionally, Customer will pay a flat rate recovery cost indemnity in the minimum amount of €. 40 per unpaid invoice as well as all other costs related to the collection of payments.

5.2 Special Terms for Hardware Licenses. If the Products are purchased under a Hardware License, then each time a new storage drive is added to the system (measuring it in TB capacity for usable data), the corresponding license Fee becomes due, as per Scality’s pricing policy. Customer will provide Scality a report of the actual capacity of the Customer system on a quarterly basis, including a report on the new hardware introduced during the previous quarter. Scality will “true up” accordingly the license Fees which are due on that basis and will invoice the Customer as necessary. If a given storage drive in a Customer deployment of a system containing Scality Software is being decommissioned and replaced by a new drive with a higher capacity, the purchase of a new license would become necessary, as per Scality pricing policy.

5.3 Taxes. All amounts payable under the Agreement shall exclude all applicable value added, sales, use and other taxes and all applicable export and import fees, customs duties and similar charges. Customer will be responsible for payment of all such taxes (other than taxes based on Scality’s income), fees, duties and charges, and any related penalties and interest, arising from the payment of any Fees hereunder, the grant of license rights hereunder, or the delivery of Services. Customer will make all payments required hereunder to Scality free and clear of, and without reduction for, any withholding taxes. If Customer have an obligation to withhold any amounts under any law or tax regime (other than income tax), Customer will gross up the payments so that Scality receives the amount actually quoted and invoiced. If Scality has a legal obligation to pay or collect taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provide Scality with a valid tax exemption certificate authorized by the appropriate taxing authority.

5.4 Disputed Charges. Customer will pay undisputed amounts when due. If Customer disputes in good faith any amount owed by Customer, Customer may withhold such disputed amount (up to a total for all disputed amounts of the total amount owed by Customer for the three (3) immediately preceding calendar months) so long as Customer provides a written notice of dispute by the due date for the disputed amount including a detailed explanation of the basis for Customer’s dispute. If Scality does not agree with Customer’s reasons for disputing any amount, the dispute will then be resolved under Section 11.1, however, the Parties will in good faith attempt to resolve such disputes within ninety (90) days of Scality’s receipt of Customer’s notice of dispute. If the dispute on any charge is resolved in favor of Scality, such charges will be due and payable within ten (10) days of such resolution, including applicable late fees from the original due date of payment by Customer for such charges.

5.5 Assurances. If Customer fails to pay any undisputed amount when due, then in addition to assessing interest Scality may (a) terminate any or all Licenses until paid; (b) suspend some or all Services until paid, including services provided pursuant to the DCS; and/or (c) require reasonable payment assurances (“Assurances”) including pre-payment of Fees, guaranties or letters of credit and condition continuing Licenses and Services on receipt of such Assurances. Upon thirty (30) days’ notice, Scality may require Assurances as a condition to continuing to provide Licenses and Services based on any material adverse change in the financial condition of Customer.

5.6 Audit. For the term of the Agreement and one (1) year thereafter, (a) Customer will maintain all books, records, contracts and accounts relating to its use of the Products, the receipt of Services, its payment of Fees and general compliance under the Agreement, and (b) Scality will have the right, at its own expense and under reasonable conditions of time and place, to audit and copy any or all of such records; provided however, that in no event shall Scality be permitted to engage in more than two (2) audits in any given calendar year. If any such audit discloses a breach of the Agreement or underpayment of any amounts by Customer or its employees or agents, Customer will, in addition to such other rights and remedies as may be available to Scality as the result of such breach, pay to Scality the reasonable cost of such audit and copying. Scality will use information obtained from such audit only to verify and enforce Customer’s compliance with the terms of the Agreement, to comply with any governmental reporting requirements and for such other purposes as required by law.

6. CONFIDENTIALITY

6.1 Definition. The term “Confidential Information” means information that is of a confidential, proprietary, or trade secret nature and is furnished or disclosed by one Party (the “Discloser”) to the other Party (the “Recipient”) under the Agreement (including information exchanged in contemplation of entering into the Agreement) that is: (a) marked as confidential; (b) if orally or visually disclosed, identified as confidential upon disclosure; or (c) due to its character, nature, or method of transmittal, information that a reasonable person under like circumstances would treat as confidential.

6.2 Protection of Confidential Information. Each Party acknowledges that it may be furnished, receive or otherwise have access to Confidential Information of the other Party in connection with the Agreement which shall remain the property of the Discloser. Each Party agrees that Confidential Information received from the other Party: (a) will only be used as necessary to achieve the purposes and objectives of the Agreement; (b) will not be disclosed to any third party without prior written approval of Discloser; (c) may only be disclosed within the receiving organization on a “need-to-know” basis to persons who have been advised of the existence of the Agreement and agree to be bound by its terms; and (d) will be treated with at least the same degree of care as Recipient treats its own Confidential Information, but in no event with less than a reasonable degree of care. Furthermore, Recipient agrees that it will not, and will not permit a third party to, (i) copy, decompile, reverse engineer, disassemble or create derivative works any Confidential Information except as specifically permitted under the Agreement or otherwise with the advance written consent of Discloser or (ii) alter, remove, or suppress any copyright, trademark, confidentiality, or other proprietary notices, marks or any legends placed, included, affixed, embedded or otherwise appearing in or on any Confidential Information, Software or Documentation or any related material; or fail to ensure that all such notices and legends appear on all full or partial copies of the Confidential Information, Software, Documentation or any related material. Recipient will notify Discloser promptly of any unauthorized use or disclosure of Confidential Information and cooperate with and assist Discloser in every reasonable way to stop or minimize such unauthorized use or disclosure.

6.3 Exceptions. “Confidential Information” will not include information that: (i) is or becomes known to the public without breach of the Agreement by Recipient; (ii) is already known to or in the possession of Recipient at the time of disclosure; (iii) is independently developed by or for Recipient as evidenced by Recipient’s own files and records; (iv) is rightfully obtained by Recipient from a third party that was lawfully in possession of the information and had the right to disclose the same; or (v) the Parties mutually agree in writing to release from the terms of the Agreement. Confidential information will not be deemed to be publicly known merely because all or a portion of such information is embodied in general disclosures or because individual features and/or components (or the combination of such features and components) are or become known to the public.

6.4 Exclusions. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law or the requirements of the Securities and Exchange Commission (“SEC”) pursuant to the rules and regulations promulgated by the SEC, as well as to the New York Stock Exchange and any other regulator charged with the administration, oversight or enforcement of regulations applicable to any business conducted by Scality, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order or otherwise maintain the confidentiality of the information to be disclosed; or (b) to establish a Party’s rights under the Agreement, including to make such court filings as it may be required to do.

7. WARRANTY

7.1 Scality Warranties. Scality represents and warrants that the Software will conform in all material respects to the Documentation for a period of ninety (90) days after the Software is delivered to Customer pursuant to the Agreement, provided that such warranty will not apply to failures to conform to the Documentation to the extent such failures arise, in whole or in part, from (a) any use of the Software other than in accordance with the Documentation, (b) modification of the Software by Customer or any third party, or (c) any combination of the Software with software, hardware or other technology not provided by Scality under the Agreement or specified by Scality as not interoperable with the Software. For all warranty claims made by Customer during the warranty period, Scality will use commercially reasonable efforts to resolve, at no charge to Customer, any such non-conformities. This is Customer’s sole and exclusive remedy for a breach of this warranty.

7.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY WARRANTED IN SECTION 7.1 OF THE AGREEMENT, THE PRODUCTS, AND ANY OTHER MATERIALS (INCLUDING THIRD PARTY SOFTWARE) AND/OR SERVICES PROVIDED BY SCALITY ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND SCALITY AND THEIR SUPPLIERS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF QUIET ENJOYMENT, ACCURACY OF DATA, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. NO WARRANTY IS MADE BY SCALITY ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. SCALITY DOES NOT WARRANT THAT THE PRODUCTS OR SERVICES PROVIDED UNDER THE AGREEMENT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

8. TERM AND TERMINATION

8.1 Term. The Agreement shall become effective upon the Effective Date and shall remain in full force and effect until the expiration or termination of all Terms set forth in the Order into which these Terms and Conditions were incorporated unless terminated earlier as provided for under the Agreement.

8.2 Termination by Either Party. A Party may terminate the Agreement if the other Party is in breach of any material obligation under the Agreement and fails to remedy such failure or breach within thirty (30) days after receipt of written notice of such breach from the non-breaching Party, including, but not limited to failure to timely pay the Fees.

8.3 Effect of Termination/Expiration. If the Agreement is terminated by either Party, or otherwise expires, then (a) within ten (10) days of the effective date of termination or the date of expiration, as applicable, Customer will certify in writing to Scality that the Products and all other Confidential Information in the possession of Customer have been destroyed or otherwise secured in accordance with Section 6; (b) any License rights granted by Scality under the applicable Order will immediately terminate as of the effective date of termination or the date of expiration, as applicable; (c) Customer will promptly pay all unpaid amounts accrued under the terminated or expired Order; (d) each Party shall return or destroy all Confidential Information of the other Party in its possession; and (e) Scality will have no further responsibility or liability thereunder as of the effective date of termination or the date of expiration, as applicable.

9. INDEMNITY

9.1 Scality Indemnity. Scality shall defend, indemnify, and hold Customer harmless against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities awarded to a third party arising out of any claim by a third party that the Products as delivered by Scality infringes or misappropriates, as applicable, any patent issued as of the Effective Date or any copyrights or trade secrets under applicable laws of any jurisdiction within the United States or within France, provided that Customer gives Scality (a) prompt written notice of such claim; (b) sole authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as Scality may reasonably request, at Scality’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Scality shall have no obligation or liability to the extent that the alleged infringement arises from (1) the combination, operation, or use of the Products with products, services, information, materials, technologies, business methods or processes not furnished by Scality; (2) modifications to the Products, which modifications are not made by Scality; (3) failure to use updates to the Products provided by Scality; (4) misuse of the Software or use of the Software except in accordance with the Documentation; or (5) breach of confidentiality provision (circumstances under the foregoing clauses (1), (2), (3), (4), and (5), collectively, “Customer Indemnity Responsibilities”). Upon the occurrence of any claim for which indemnity is or may be due under Section 9.2, or in the event that Scality believes that such a claim is likely, Scality may, at its option (i) appropriately modify the Product so that it becomes non-infringing, or substitute functionally equivalent software or services; (ii) obtain a license to the applicable third-party intellectual property rights; or (iii) terminate the Agreement on written notice to Customer and refund to Customer any unused license Fees under the then current Order Term(s). The obligations set forth in this Section 9 shall constitute Scality’s entire liability and Customer’s sole remedy for any actual or alleged infringement or misappropriation.

9.2 Indemnification by Customer. Customer shall indemnify, hold harmless, and defend Scality from and against all losses, expenses (including reasonable attorneys’ fees), damages, and liabilities awarded to a third party resulting from a claim by a third party arising from or in connection with Customer Indemnity Responsibilities. Scality agrees to give Customer (a) prompt written notice of such claim; (b) sole authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as Customer may reasonably request, at Customer’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Customer shall not settle any third-party claim against Scality unless such settlement completely and forever releases Scality with respect thereto or unless Scality provides its prior written consent to such settlement. In any action for which Customer provides defense on behalf of Scality, Scality may participate in such defense at its own expense by counsel of its choice.

10. LIMIT OF LIABILITY

10.1 Limitation of Liability. If Customer should become entitled to claim damages from Scality (including for breach of contract, breach of warranty, negligence or other tort claim), Scality will be liable only for the amount of Customer’s actual direct damages, not to exceed (in the aggregate for all claims) the amount paid by Customer to Scality for the specifically deployed Product that caused the liability and is the subject of the claim. In no event will Scality’s aggregate liability for all claims arising under or relating to any single Order exceed the total amount paid to Scality by Customer pursuant to such Order for the twelve (12) months prior to month in which the event giving rise to liability occurred under such Order.

10.2 Consequential Damages. EXCEPT WITH RESPECT TO (A) BREACHES OF CUSTOMER’S OBLIGATIONS SET FORTH IN SECTION 6 (CONFIDENTIALITY) AND SECTION 9 (INDEMNITY); AND (B) DAMAGES ATTRIBUTABLE TO CUSTOMER’S MISAPPROPRIATION, VIOLATION OR INFRINGEMENT OF SCALITY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY, OR SCALITY’S SUPPLIERS, BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, DAMAGES RESULTING FROM LOSS OF DATA, SECURITY BREACH, PROPERTY DAMAGE, LOST REVENUE, LOST SAVINGS OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, THE PERFORMANCE OF THE SOFTWARE OR SCALITY’S PERFORMANCE OF SERVICES OR OF ANY OTHER OBLIGATIONS RELATING TO THE AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.3 The limitations of liability set forth in this Section 10 will survive and apply notwithstanding the failure of any limited or exclusive remedy for breach of warranty set forth in the Agreement.

11. LAWS AND DISPUTE RESOLUTION

11.1 Choice of Law. The Agreement will be governed by the laws of the State of France, without regard to any provision of French law that would require or permit the application of the substantive law of any other jurisdiction. The Agreement will not be subject to (a) the United Nations Convention on Contracts for the International Sale of Goods; or (b) any version of the Uniform Computer Information Transactions Act (UCITA) as it is, or may be, adopted in any state.

11.2 The Parties hereby irrevocably consent to the exclusive jurisdiction of the Paris Courts, including in case of claim from third parties.

11.3 Informal Dispute Resolution. At the written request of either Party, the Parties will attempt to resolve any dispute arising under or relating to the Agreement through the informal means described in this Section 11.2. Each Party will appoint a senior management representative who does not devote substantially all of his or her time to performance under the Agreement. The representatives will furnish to each other all non-privileged information with respect to the dispute that the Parties believe to be appropriate and germane. The representatives will negotiate in an effort to resolve the dispute without the necessity of any formal proceeding. Formal proceedings, for the resolution of the dispute may not be commenced until the earlier of: (a)the designated representatives conclude that resolution through continued negotiation does not appear likely; or (b)thirty (30) calendar days have passed since the initial request to negotiate the dispute was made; provided, however, that a Party may file earlier to avoid the expiration of any applicable limitations period, to preserve a superior position with respect to other creditors, or to apply for injunctive or equitable relief.

11.4 Compliance with Laws. Each Party, at its sole expense, will perform its obligations and exercise its rights in a manner that complies with laws. If a charge is made that a Party is not complying with any such laws, such Party will promptly notify the other Party of such charges in writing. Each Party will comply with the export laws and regulations of France and other applicable jurisdictions. Each Party will, at its sole cost and expense, obtain and maintain in effect all permits, licenses, approvals and other consents related to its obligations under the Agreement. Without limiting the foregoing, Customer will be required to obtain all permits, licenses and other consents necessary for the development and distribution of the Products contemplated by any Order. If Customer violates this Section 11.3, Scality may terminate the Agreement upon notice.

12. GENERAL

12.1 Entire Agreement. The Agreement (the Order and these Terms and Conditions) constitute the entire agreement between the Parties, and supersedes all other prior or contemporaneous communications between the Parties (whether written or oral) relating to the subject matter of the Agreement. The Agreement may be modified or amended solely in a writing signed by both Parties.

12.2 Assignment. Customer may not assign or otherwise transfer any right or obligation set forth in the Agreement (whether by operation of law or otherwise) without Scality’s prior written consent, which consent shall not be unreasonably delayed, conditioned or withheld; provided, however, that Customer may assign the Agreement to any company which controls, is controlled by, or is under common control with Customer, or in the event of a merger, acquisition or sale of all or substantially all of the assets thereof. Notwithstanding the foregoing, Customer may not assign or otherwise transfer any right or obligation set forth in the Agreement (whether by operation of law or otherwise) without Scality’s prior written consent if the assignee or transferee is a competitor of, or in competition with, Scality. Any purported assignment in violation of the preceding sentence will be void. Scality may assign all or part of its rights or obligations set forth in the Agreement (whether by operation of law or otherwise) and all sums due or to become due pursuant to the Agreement for any reason. The Agreement will be binding upon the Parties’ respective successors and permitted assigns.

12.3 Order of Precedence; Interpretation. If there is any conflict between the general terms and conditions of the Agreement and the terms contained in any Order, the Parties will attempt to read any such conflicting provisions consistently, however, in the event such a consistent reading cannot be accomplished, the Order will take precedence over such other terms solely with respect to such Order and solely with respect to such conflicting terms. The Agreement has been mutually negotiated, and is deemed to have been prepared at arm’s length at the joint direction and construction of the Parties and is to be interpreted in accordance with its terms without favor to either Party.

12.4 Notice. Any legal notice or other communication required or permitted to be made or given by either Party pursuant to the Agreement will be in writing, in French or in English, and will be deemed to have been duly given: (a)five (5) business days after the date of mailing if sent by registered mail, postage prepaid, with return receipt requested; (b)when transmitted if sent by facsimile, provided a confirmation of transmission is produced by the sending machine and a copy of the notice is promptly sent by another means specified in this Section 12.4; or (c)when delivered if delivered personally or sent by express courier service. All notices will be sent to the other Party at its address as set forth in the Order. Each party consents to receive communications from the other electronically. Scality may communicate with Customer by e-mail or posting notices on the Scality web site. Customer agrees that all agreements, notices, disclosures and other communications that Scality provides to it electronically satisfy any legal requirement that such communications be in writing.

12.5 Severability. The provisions of the Agreement will be deemed severable, and the unenforceability of any one or more provisions will not affect the enforceability of any other provisions. In addition, if any provision of the Agreement, for any reason, is declared to be unenforceable, the Parties will substitute an enforceable provision that, to the maximum extent possible under applicable law, preserves the original intentions and economic positions of the Parties.

12.6 No Waiver. No failure or delay by a Party in exercising any right, power or remedy will operate as a waiver of that right, power or remedy, and no waiver will be effective unless it is in writing and signed by the waiving Party. If a Party waives any right, power or remedy, the waiver will not waive any successive or other right, power or remedy the Party may have under the Agreement.

12.7 Third Parties. Except for the suppliers of Third Party Software as contemplated in the Agreement, the Agreement is not intended nor will it be interpreted to confer any benefit, right or privilege in any person or entity not a party to the Agreement.

12.8 Marketing. Customer grants Scality the right to (a) identify Customer as a Scality Customer, and (b) with the prior approval in writing by Customer, which shall not be unreasonably withheld, use Customer’s name, mark and/or logo on Scality’s website and/or in Scality marketing materials.

12.9 Excusable Delay. Except for the obligations related to Confidential Information, License rights and restrictions, and payment, neither Party is responsible for any failure to comply with the terms of the Agreement or any Order where the failure or delay is due to causes beyond the reasonable control of the Party.

12.10 Independent Relationship. The relationship established by the Agreement is solely that of licensor and licensee, and each Party will act at all times as an independent party for its own account. Neither Party may represent or hold itself out as an agent or representative of the other. Neither Party has any authority to, and is expressly prohibited from, creating or assuming any obligation on behalf of the other, and from otherwise making or extending any representation, warranty, guarantee or other commitment for or on behalf of the other.

12.11 Survival of Certain Provisions. Any provisions of the Agreement that by their nature are intended to survive any expiration or termination will survive expiration or termination of the Agreement for any reason. The terms set forth in the sections entitled License Limitations, Ownership, Confidentiality, Warranty Disclaimer, Limitation of Damages and Remedies shall survive any termination of the Agreement.

These Software License Agreement – Terms and Conditions (the “Terms and Conditions”) are made and are effective as of the date set forth on the SOFTWARE LICENSE ORDER FORM (“Order”) signed by the parties thereto, that incorporates these terms and conditions by reference. In these Terms and Conditions (also referred to herein as the “Agreement”), Scality and the Customer identified in the Order are referred to herein collectively as the “Parties” and individually as a “Party”.

1. DEFINITIONS. Certain capitalized terms, if not otherwise defined above, shall have the meanings set forth below:

1.1 “Agreement” means the Order and these terms and conditions. To the extent of any conflict between them, none being intended, the Order terms shall control.

1.2 “Customer” means the entity that has licensed the Software under an Order.

1.3 “DCS” means Dedicated Care Support, which is provided under the separate Dedicated Care Support Services Terms and Conditions, and is only provided if the Order includes such services.

1.4 “Derivative Works” means a revision, enhancement, modification, translation, abridgment, condensation, expansion, new releases, or any other form in which all or part of any software included in the Software may be recast, transferred or adapted.

1.5 “Documentation” means all user manuals and user documentation associated with the Software that is made available to Customer by Scality pursuant to the terms of the Agreement.

1.6 “Effective Date” means the effective date as set forth on the Order.

1.7 “Fees” means all amounts owed by Customer to Scality under the Agreement.

1.8 “Hardware License” means a license to the Software that is tied to a given hardware device for the usable storage capacity (HDD and SSD) of the device measured in terabytes as specified on an Order and licensed for the life of that device.

1.9 “Intellectual Property Rights” means all intellectual and industrial property rights recognized in any jurisdiction, including copyrights, mask work rights, moral rights, trade secrets, patent rights, rights in inventions, trademarks, trade names and service marks (including without limitation applications for, and registrations, extensions, renewals, and re-issuances of, the foregoing).

1.10 “License” means licenses for Production Use and Non-Production Use provided by Scality to Customer pursuant to the Agreement as either a Hardware License or a Term License.

1.11 “Non-Production Use” means any use other than the Production Use.

1.12 “Production Use” means any live orproductionuse, or any direct or indirect use of the Software which is in live or production use or serving its final or intended or revenue-generating purpose.

1.13 “Products” means, collectively, the Software and Documentation.

1.14 “Services” means the services provided by Scality to Customer pursuant to the Agreement.

1.15 “Scality” means the entity listed in the Order that is licensing the Software to the Customer.

1.16 “Software” means the object code version of the software identified and defined as Software in each Order, such as the RING software and the applicable connectors ordered. The term “Software” includes, without limitation, any patches, updates, improvements, additions, enhancements and other modifications that may subsequently be made available to Customer pursuant to the terms of the Agreement. The term “Software” does not include Third Party Software.

1.17 “Supported Platform” means an operating system listed on the Scality website (at www.scality.com) as one with which the Software is compatible.

1.18 “Storage Capacity” means the amount of usable storage capacity (HDD and SSD) of the system (measured in terabytes) that may be used in connection with the Products, where usable storage capacity is calculated by subtracting from total raw capacity (HDD and SSD of all hardware on which the Products are installed) the data protection overhead required to protect usable data on such hardware.

1.19 “Term” means the period of time set forth in the Order for a Term License and the life of the specific storage drive (HDD and SSD) as specified on an Order for a Hardware License.

1.20 “Term License” means a license to the Software for a specific period of time as set forth on the Order.

1.21 “Third Party Software” means the object code version of the software identified in an Order as Third Party Software or other software identified in the Documentation as Third Party Software that is included with the Software, including, but not limited to, open source software.

2. NATURE OF THE TERMS AND CONDITIONS

The Agreement describes the Products (and associated Licenses), Services, and associated terms and conditions available for purchase by Customer. Scality is not obligated to provide, and Customer is not obligated to license or purchase (as applicable), any Products and/or Services unless and until the Parties execute the Order. These Terms and Conditions are, and shall be deemed to be, incorporated by reference into each such Order. Services will be provided by Scality using such systems, tools, and other means that it determines.

3. INTELLECTUAL PROPERTY RIGHTS; LICENSE

3.1 License. For a Hardware License, subject to the terms of the Agreement and any restrictions set forth in the Order, Scality hereby grants to Customer a worldwide, limited, non-exclusive and non-transferable license, during the Term set forth on an Order: (a) to use the object code version of the Software and the Third Party Software solely for Customer’s Production Use or Non-Production Use with no right to sublicense or otherwise offer the Software on a stand-alone basis for up to the number of storage devices identified on the Order Form, up to the Storage Capacity specified on the Order, at the location(s) set forth on the Order; and (b) to use the Documentation solely in connection with the use of the Software as authorized above. For clarity, Customer may make copies of the Software for use in Customer’s Production Use and/or Non-Production Use, subject to Section 3.2 below. Customer may make a reasonable number of copies of the Documentation for its internal use. The Third Party Software may contain additional terms as identified in an Order or the Documentation for open source software. For a Term License, subject to the terms of the Agreement and any restrictions set forth in the Order, Scality hereby grants to Customer a worldwide, limited, non-exclusive and non-transferable license, during the Term set forth on an Order: (a) to use the object code version of the Software and the Third Party Software solely for Customer’s Production Use or Non-Production Use with no right to sublicense or otherwise offer the Software on a stand-alone basis for up to the Storage Capacity identified on the Order Form (if the Order fails to specify a specific amount of storage the storage limit shall be one terabyte) at the location(s) set forth on the Order; and (b) to use the Documentation solely in connection with the use of the Software as authorized above. For clarity, Customer may make copies of the Software for use in Customer’s Production Use and/or Non-Production Use, subject to Section 3.2 below. Customer may make a reasonable number of copies of the Documentation for its internal use. The Third Party Software may contain additional terms as identified in an Order or the Documentation for open source software.

3.2 License Limitations. Except to the extent specifically permitted by Section 3.1, Customer may not (i) reproduce, modify, translate or create Derivative Works of all or any part of the Products; (ii) rent, lease, loan or otherwise distribute the Products or any Third Party Software to any third party or otherwise allow a third party to use the Products or any Third Party Software (either by way of remote terminal or through other computer facilities); (iii) copy, decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, processes or algorithms of all or any part of the Software by any legal or technical means whatsoever, nor disclose any of the foregoing; (iv) move the Software or any Third Party Software to a location other than the initial location set forth on the initial Order, without the prior written approval from Scality; or (v) publish or disclose to any third party any opinions relating to, or the results of any test or benchmarking or comparative study of the Software or any Third Party Software (whether or not obtained or performed with Scality’s assistance), or use such results for its own competing software development activities; or (vi) remove any product identification, proprietary, copyright or other notices contained in the Products or the Third Party Software. Customer may not sublicense any of its license rights to the Products or any Third Party Software (including without limitation the right to sublicense the Products to customers of Customer or other third parties). The Software may only be used with the Supported Platforms identified in the Order.

3.3 Professional Services. Scality will not perform any specific development, training or integration services for Customer, unless specifically agreed in a separate agreement between the Parties.

3.4 Title; Ownership. Scality owns and retains all right, title and interest, including without limitation Intellectual Property Rights, in and to the Products and Scality Confidential Information, and any other intellectual property that results from the performance of the Services other than Customer Confidential Information. The third parties identified in the Documentation and/or an Order for all Third Party Software retain ownership of their respective Third Party Software. All rights not expressly granted under the Agreement by Scality are hereby reserved by Scality. All copyrights, trade secret rights, trademarks, logos or other words identifying Customer or relating to their end user’s data or information are and shall remain the exclusive property of the Customer or its or their end user’s (or its or their licensors).

4. MAINTENANCE & SUPPORT SERVICES.

4.1 Maintenance and Support. All Maintenance and Support shall be provided under the Maintenance and Support Terms and Conditions incorporated into the Order.

4.2 Remote Monitoring and Diagnosis. The Software contains functionality that allows Scality to remotely monitor the Software, however, such functionality is neither enabled nor used unless Customer has ordered and accepted DCS. If Customer has ordered DCS, Customer hereby grants Scality the right to monitor and gain access to the Software for the limited purposes set forth in this Section and to provide DCS services. Customer acknowledges that the Software and its monitoring tools collect and transmit certain status information to Scality regarding the installation and operation of the Software. As part of Scality’s monitoring tools, there is a real-time monitoring, alarming and capacity planning solution. On the installation, the information indicates to Scality whether installation of the Software was successfully completed as well as whether the Software has encountered an error within the installation process operated by Customer. This information is collected by Scality for the purpose of evaluating and improving Software performance and installation success rate. On operation of the Software, the information concerns Software global status and its components capabilities, operations, capacity trends and health. Scality collects and remotely monitor the Software for the limited purpose of improving Software performance and service quality provided to Customer. The status information could contain personally identifiable information only if such information is included in the name of the file or folder encountered by the Software at the time it encounters an error. This information shall not be correlated with any personally identifiable information and shall not be considered as a process of personal data. The Software shall also collect and transmit to Scality other information which may be used for license administration, software analysis, and for improving software functionality. Scality shall also have a right to audit the installed Software to obtain such information, such audit to be performed remotely, if remote access is possible, and otherwise on-site; provided that if such audit is to be performed on-site, then Scality will provide reasonable advance notice of same, and such audit shall occur during normal business hours. The information collected by Scality pursuant to the present section shall not be correlated by Scality with any personally identifiable information.

5. FEES; PAYMENT

5.1 Fees. In consideration for the licenses granted to Customer and the performance of Scality’s obligations under the Agreement or the DCS, Customer shall pay to Scality, without offset or deduction, certain Fees, in such amounts as may be determined by reference to an Order. Unless otherwise provided in such Order, all such Fees shall be due and payable within thirty (30) calendar days after date of the Order for Products or the date of the Scality invoice for all other Fees. Customer will pay a late payment interest equal to the European Central Bank main refinancing operations rate plus ten (10) basis points per annum, on all amounts not paid in accordance with this Section 5.1; this interest will begin to accrue on the day after the payment due date and will accumulate on the outstanding balance on a daily basis until paid in full. Additionally, Customer will pay a flat rate recovery cost indemnity in the minimum amount of €. 40 per unpaid invoice as well as all other costs related to the collection of payments.

5.2 Special Terms for Hardware Licenses. If the Products are purchased under a Hardware License, then each time a new storage drive is added to the system (measuring it in TB capacity for usable data), the corresponding license Fee becomes due, as per Scality’s pricing policy. Customer will provide Scality a report of the actual capacity of the Customer system on a quarterly basis, including a report on the new hardware introduced during the previous quarter. Scality will “true up” accordingly the license Fees which are due on that basis and will invoice the Customer as necessary. If a given storage drive in a Customer deployment of a system containing Scality Software is being decommissioned and replaced by a new drive with a higher capacity, the purchase of a new license would become necessary, as per Scality pricing policy.

5.3 Taxes. All amounts payable under the Agreement shall exclude all applicable value added, sales, use and other taxes and all applicable export and import fees, customs duties and similar charges. Customer will be responsible for payment of all such taxes (other than taxes based on Scality’s income), fees, duties and charges, and any related penalties and interest, arising from the payment of any Fees hereunder, the grant of license rights hereunder, or the delivery of Services. Customer will make all payments required hereunder to Scality free and clear of, and without reduction for, any withholding taxes. If Customer have an obligation to withhold any amounts under any law or tax regime (other than income tax), Customer will gross up the payments so that Scality receives the amount actually quoted and invoiced. If Scality has a legal obligation to pay or collect taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provide Scality with a valid tax exemption certificate authorized by the appropriate taxing authority.

5.4 Disputed Charges. Customer will pay undisputed amounts when due. If Customer disputes in good faith any amount owed by Customer, Customer may withhold such disputed amount (up to a total for all disputed amounts of the total amount owed by Customer for the three (3) immediately preceding calendar months) so long as Customer provides a written notice of dispute by the due date for the disputed amount including a detailed explanation of the basis for Customer’s dispute. If Scality does not agree with Customer’s reasons for disputing any amount, the dispute will then be resolved under Section 11.1, however, the Parties will in good faith attempt to resolve such disputes within ninety (90) days of Scality’s receipt of Customer’s notice of dispute. If the dispute on any charge is resolved in favor of Scality, such charges will be due and payable within ten (10) days of such resolution, including applicable late fees from the original due date of payment by Customer for such charges.

5.5 Assurances. If Customer fails to pay any undisputed amount when due, then in addition to assessing interest Scality may (a) terminate any or all Licenses until paid; (b) suspend some or all Services until paid, including services provided pursuant to the DCS; and/or (c) require reasonable payment assurances (“Assurances”) including pre-payment of Fees, guaranties or letters of credit and condition continuing Licenses and Services on receipt of such Assurances. Upon thirty (30) days’ notice, Scality may require Assurances as a condition to continuing to provide Licenses and Services based on any material adverse change in the financial condition of Customer.

5.6 Audit. For the term of the Agreement and one (1) year thereafter, (a) Customer will maintain all books, records, contracts and accounts relating to its use of the Products, the receipt of Services, its payment of Fees and general compliance under the Agreement, and (b) Scality will have the right, at its own expense and under reasonable conditions of time and place, to audit and copy any or all of such records; provided however, that in no event shall Scality be permitted to engage in more than two (2) audits in any given calendar year. If any such audit discloses a breach of the Agreement or underpayment of any amounts by Customer or its employees or agents, Customer will, in addition to such other rights and remedies as may be available to Scality as the result of such breach, pay to Scality the reasonable cost of such audit and copying. Scality will use information obtained from such audit only to verify and enforce Customer’s compliance with the terms of the Agreement, to comply with any governmental reporting requirements and for such other purposes as required by law.

6. CONFIDENTIALITY

6.1 Definition. The term “Confidential Information” means information that is of a confidential, proprietary, or trade secret nature and is furnished or disclosed by one Party (the “Discloser”) to the other Party (the “Recipient”) under the Agreement (including information exchanged in contemplation of entering into the Agreement) that is: (a) marked as confidential; (b) if orally or visually disclosed, identified as confidential upon disclosure; or (c) due to its character, nature, or method of transmittal, information that a reasonable person under like circumstances would treat as confidential.

6.2 Protection of Confidential Information. Each Party acknowledges that it may be furnished, receive or otherwise have access to Confidential Information of the other Party in connection with the Agreement which shall remain the property of the Discloser. Each Party agrees that Confidential Information received from the other Party: (a) will only be used as necessary to achieve the purposes and objectives of the Agreement; (b) will not be disclosed to any third party without prior written approval of Discloser; (c) may only be disclosed within the receiving organization on a “need-to-know” basis to persons who have been advised of the existence of the Agreement and agree to be bound by its terms; and (d) will be treated with at least the same degree of care as Recipient treats its own Confidential Information, but in no event with less than a reasonable degree of care. Furthermore, Recipient agrees that it will not, and will not permit a third party to, (i) copy, decompile, reverse engineer, disassemble or create derivative works any Confidential Information except as specifically permitted under the Agreement or otherwise with the advance written consent of Discloser or (ii) alter, remove, or suppress any copyright, trademark, confidentiality, or other proprietary notices, marks or any legends placed, included, affixed, embedded or otherwise appearing in or on any Confidential Information, Software or Documentation or any related material; or fail to ensure that all such notices and legends appear on all full or partial copies of the Confidential Information, Software, Documentation or any related material. Recipient will notify Discloser promptly of any unauthorized use or disclosure of Confidential Information and cooperate with and assist Discloser in every reasonable way to stop or minimize such unauthorized use or disclosure.

6.3 Exceptions. “Confidential Information” will not include information that: (i) is or becomes known to the public without breach of the Agreement by Recipient; (ii) is already known to or in the possession of Recipient at the time of disclosure; (iii) is independently developed by or for Recipient as evidenced by Recipient’s own files and records; (iv) is rightfully obtained by Recipient from a third party that was lawfully in possession of the information and had the right to disclose the same; or (v) the Parties mutually agree in writing to release from the terms of the Agreement. Confidential information will not be deemed to be publicly known merely because all or a portion of such information is embodied in general disclosures or because individual features and/or components (or the combination of such features and components) are or become known to the public.

6.4 Exclusions. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law or the requirements of the Securities and Exchange Commission (“SEC”) pursuant to the rules and regulations promulgated by the SEC, as well as to the New York Stock Exchange and any other regulator charged with the administration, oversight or enforcement of regulations applicable to any business conducted by Scality, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order or otherwise maintain the confidentiality of the information to be disclosed; or (b) to establish a Party’s rights under the Agreement, including to make such court filings as it may be required to do.

7. WARRANTY

7.1 Scality Warranties. Scality represents and warrants that the Software will conform in all material respects to the Documentation for a period of ninety (90) days after the Software is delivered to Customer pursuant to the Agreement, provided that such warranty will not apply to failures to conform to the Documentation to the extent such failures arise, in whole or in part, from (a) any use of the Software other than in accordance with the Documentation, (b) modification of the Software by Customer or any third party, or (c) any combination of the Software with software, hardware or other technology not provided by Scality under the Agreement or specified by Scality as not interoperable with the Software. For all warranty claims made by Customer during the warranty period, Scality will use commercially reasonable efforts to resolve, at no charge to Customer, any such non-conformities. This is Customer’s sole and exclusive remedy for a breach of this warranty.

7.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY WARRANTED IN SECTION 7.1 OF THE AGREEMENT, THE PRODUCTS, AND ANY OTHER MATERIALS (INCLUDING THIRD PARTY SOFTWARE) AND/OR SERVICES PROVIDED BY SCALITY ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND SCALITY AND THEIR SUPPLIERS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF QUIET ENJOYMENT, ACCURACY OF DATA, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. NO WARRANTY IS MADE BY SCALITY ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. SCALITY DOES NOT WARRANT THAT THE PRODUCTS OR SERVICES PROVIDED UNDER THE AGREEMENT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

8. TERM AND TERMINATION

8.1 Term. The Agreement shall become effective upon the Effective Date and shall remain in full force and effect until the expiration or termination of all Terms set forth in the Order into which these Terms and Conditions were incorporated unless terminated earlier as provided for under the Agreement.

8.2 Termination by Either Party. A Party may terminate the Agreement if the other Party is in breach of any material obligation under the Agreement and fails to remedy such failure or breach within thirty (30) days after receipt of written notice of such breach from the non-breaching Party, including, but not limited to failure to timely pay the Fees.

8.3 Effect of Termination/Expiration. If the Agreement is terminated by either Party, or otherwise expires, then (a) within ten (10) days of the effective date of termination or the date of expiration, as applicable, Customer will certify in writing to Scality that the Products and all other Confidential Information in the possession of Customer have been destroyed or otherwise secured in accordance with Section 6; (b) any License rights granted by Scality under the applicable Order will immediately terminate as of the effective date of termination or the date of expiration, as applicable; (c) Customer will promptly pay all unpaid amounts accrued under the terminated or expired Order; (d) each Party shall return or destroy all Confidential Information of the other Party in its possession; and (e) Scality will have no further responsibility or liability thereunder as of the effective date of termination or the date of expiration, as applicable.

9. INDEMNITY

9.1 Scality Indemnity. Scality shall defend, indemnify, and hold Customer harmless against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities awarded to a third party arising out of any claim by a third party that the Products as delivered by Scality infringes or misappropriates, as applicable, any patent issued as of the Effective Date or any copyrights or trade secrets under applicable laws of any jurisdiction within the United States or within France, provided that Customer gives Scality (a) prompt written notice of such claim; (b) sole authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as Scality may reasonably request, at Scality’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Scality shall have no obligation or liability to the extent that the alleged infringement arises from (1) the combination, operation, or use of the Products with products, services, information, materials, technologies, business methods or processes not furnished by Scality; (2) modifications to the Products, which modifications are not made by Scality; (3) failure to use updates to the Products provided by Scality; (4) misuse of the Software or use of the Software except in accordance with the Documentation; or (5) breach of confidentiality provision (circumstances under the foregoing clauses (1), (2), (3), (4), and (5), collectively, “Customer Indemnity Responsibilities”). Upon the occurrence of any claim for which indemnity is or may be due under Section 9.2, or in the event that Scality believes that such a claim is likely, Scality may, at its option (i) appropriately modify the Product so that it becomes non-infringing, or substitute functionally equivalent software or services; (ii) obtain a license to the applicable third-party intellectual property rights; or (iii) terminate the Agreement on written notice to Customer and refund to Customer any unused license Fees under the then current Order Term(s). The obligations set forth in this Section 9 shall constitute Scality’s entire liability and Customer’s sole remedy for any actual or alleged infringement or misappropriation.

9.2 Indemnification by Customer. Customer shall indemnify, hold harmless, and defend Scality from and against all losses, expenses (including reasonable attorneys’ fees), damages, and liabilities awarded to a third party resulting from a claim by a third party arising from or in connection with Customer Indemnity Responsibilities. Scality agrees to give Customer (a) prompt written notice of such claim; (b) sole authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as Customer may reasonably request, at Customer’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Customer shall not settle any third-party claim against Scality unless such settlement completely and forever releases Scality with respect thereto or unless Scality provides its prior written consent to such settlement. In any action for which Customer provides defense on behalf of Scality, Scality may participate in such defense at its own expense by counsel of its choice.

10. LIMIT OF LIABILITY

10.1 Limitation of Liability. If Customer should become entitled to claim damages from Scality (including for breach of contract, breach of warranty, negligence or other tort claim), Scality will be liable only for the amount of Customer’s actual direct damages, not to exceed (in the aggregate for all claims) the amount paid by Customer to Scality for the specifically deployed Product that caused the liability and is the subject of the claim. In no event will Scality’s aggregate liability for all claims arising under or relating to any single Order exceed the total amount paid to Scality by Customer pursuant to such Order for the twelve (12) months prior to month in which the event giving rise to liability occurred under such Order.

10.2 Consequential Damages. EXCEPT WITH RESPECT TO (A) BREACHES OF CUSTOMER’S OBLIGATIONS SET FORTH IN SECTION 6 (CONFIDENTIALITY) AND SECTION 9 (INDEMNITY); AND (B) DAMAGES ATTRIBUTABLE TO CUSTOMER’S MISAPPROPRIATION, VIOLATION OR INFRINGEMENT OF SCALITY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY, OR SCALITY’S SUPPLIERS, BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, DAMAGES RESULTING FROM LOSS OF DATA, SECURITY BREACH, PROPERTY DAMAGE, LOST REVENUE, LOST SAVINGS OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, THE PERFORMANCE OF THE SOFTWARE OR SCALITY’S PERFORMANCE OF SERVICES OR OF ANY OTHER OBLIGATIONS RELATING TO THE AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.3 The limitations of liability set forth in this Section 10 will survive and apply notwithstanding the failure of any limited or exclusive remedy for breach of warranty set forth in the Agreement.

11. LAWS AND DISPUTE RESOLUTION

11.1 Choice of Law. The Agreement will be governed by the laws of the State of France, without regard to any provision of French law that would require or permit the application of the substantive law of any other jurisdiction. The Agreement will not be subject to (a) the United Nations Convention on Contracts for the International Sale of Goods; or (b) any version of the Uniform Computer Information Transactions Act (UCITA) as it is, or may be, adopted in any state.

11.2 The Parties hereby irrevocably consent to the exclusive jurisdiction of the Paris Courts, including in case of claim from third parties.

11.3 Informal Dispute Resolution. At the written request of either Party, the Parties will attempt to resolve any dispute arising under or relating to the Agreement through the informal means described in this Section 11.2. Each Party will appoint a senior management representative who does not devote substantially all of his or her time to performance under the Agreement. The representatives will furnish to each other all non-privileged information with respect to the dispute that the Parties believe to be appropriate and germane. The representatives will negotiate in an effort to resolve the dispute without the necessity of any formal proceeding. Formal proceedings, for the resolution of the dispute may not be commenced until the earlier of: (a)the designated representatives conclude that resolution through continued negotiation does not appear likely; or (b)thirty (30) calendar days have passed since the initial request to negotiate the dispute was made; provided, however, that a Party may file earlier to avoid the expiration of any applicable limitations period, to preserve a superior position with respect to other creditors, or to apply for injunctive or equitable relief.

11.4 Compliance with Laws. Each Party, at its sole expense, will perform its obligations and exercise its rights in a manner that complies with laws. If a charge is made that a Party is not complying with any such laws, such Party will promptly notify the other Party of such charges in writing. Each Party will comply with the export laws and regulations of France and other applicable jurisdictions. Each Party will, at its sole cost and expense, obtain and maintain in effect all permits, licenses, approvals and other consents related to its obligations under the Agreement. Without limiting the foregoing, Customer will be required to obtain all permits, licenses and other consents necessary for the development and distribution of the Products contemplated by any Order. If Customer violates this Section 11.3, Scality may terminate the Agreement upon notice.

12. GENERAL

12.1 Entire Agreement. The Agreement (the Order and these Terms and Conditions) constitute the entire agreement between the Parties, and supersedes all other prior or contemporaneous communications between the Parties (whether written or oral) relating to the subject matter of the Agreement. The Agreement may be modified or amended solely in a writing signed by both Parties.

12.2 Assignment. Customer may not assign or otherwise transfer any right or obligation set forth in the Agreement (whether by operation of law or otherwise) without Scality’s prior written consent, which consent shall not be unreasonably delayed, conditioned or withheld; provided, however, that Customer may assign the Agreement to any company which controls, is controlled by, or is under common control with Customer, or in the event of a merger, acquisition or sale of all or substantially all of the assets thereof. Notwithstanding the foregoing, Customer may not assign or otherwise transfer any right or obligation set forth in the Agreement (whether by operation of law or otherwise) without Scality’s prior written consent if the assignee or transferee is a competitor of, or in competition with, Scality. Any purported assignment in violation of the preceding sentence will be void. Scality may assign all or part of its rights or obligations set forth in the Agreement (whether by operation of law or otherwise) and all sums due or to become due pursuant to the Agreement for any reason. The Agreement will be binding upon the Parties’ respective successors and permitted assigns.

12.3 Order of Precedence; Interpretation. If there is any conflict between the general terms and conditions of the Agreement and the terms contained in any Order, the Parties will attempt to read any such conflicting provisions consistently, however, in the event such a consistent reading cannot be accomplished, the Order will take precedence over such other terms solely with respect to such Order and solely with respect to such conflicting terms. The Agreement has been mutually negotiated, and is deemed to have been prepared at arm’s length at the joint direction and construction of the Parties and is to be interpreted in accordance with its terms without favor to either Party.

12.4 Notice. Any legal notice or other communication required or permitted to be made or given by either Party pursuant to the Agreement will be in writing, in French or in English, and will be deemed to have been duly given: (a)five (5) business days after the date of mailing if sent by registered mail, postage prepaid, with return receipt requested; (b)when transmitted if sent by facsimile, provided a confirmation of transmission is produced by the sending machine and a copy of the notice is promptly sent by another means specified in this Section 12.4; or (c)when delivered if delivered personally or sent by express courier service. All notices will be sent to the other Party at its address as set forth in the Order. Each party consents to receive communications from the other electronically. Scality may communicate with Customer by e-mail or posting notices on the Scality web site. Customer agrees that all agreements, notices, disclosures and other communications that Scality provides to it electronically satisfy any legal requirement that such communications be in writing.

12.5 Severability. The provisions of the Agreement will be deemed severable, and the unenforceability of any one or more provisions will not affect the enforceability of any other provisions. In addition, if any provision of the Agreement, for any reason, is declared to be unenforceable, the Parties will substitute an enforceable provision that, to the maximum extent possible under applicable law, preserves the original intentions and economic positions of the Parties.

12.6 No Waiver. No failure or delay by a Party in exercising any right, power or remedy will operate as a waiver of that right, power or remedy, and no waiver will be effective unless it is in writing and signed by the waiving Party. If a Party waives any right, power or remedy, the waiver will not waive any successive or other right, power or remedy the Party may have under the Agreement.

12.7 Third Parties. Except for the suppliers of Third Party Software as contemplated in the Agreement, the Agreement is not intended nor will it be interpreted to confer any benefit, right or privilege in any person or entity not a party to the Agreement.

12.8 Marketing. Customer grants Scality the right to (a) identify Customer as a Scality Customer, and (b) with the prior approval in writing by Customer, which shall not be unreasonably withheld, use Customer’s name, mark and/or logo on Scality’s website and/or in Scality marketing materials.

12.9 Excusable Delay. Except for the obligations related to Confidential Information, License rights and restrictions, and payment, neither Party is responsible for any failure to comply with the terms of the Agreement or any Order where the failure or delay is due to causes beyond the reasonable control of the Party.

12.10 Independent Relationship. The relationship established by the Agreement is solely that of licensor and licensee, and each Party will act at all times as an independent party for its own account. Neither Party may represent or hold itself out as an agent or representative of the other. Neither Party has any authority to, and is expressly prohibited from, creating or assuming any obligation on behalf of the other, and from otherwise making or extending any representation, warranty, guarantee or other commitment for or on behalf of the other.

12.11 Survival of Certain Provisions. Any provisions of the Agreement that by their nature are intended to survive any expiration or termination will survive expiration or termination of the Agreement for any reason. The terms set forth in the sections entitled License Limitations, Ownership, Confidentiality, Warranty Disclaimer, Limitation of Damages and Remedies shall survive any termination of the Agreement.

Scality – Maintenance and Support Services Terms and Conditions

These Maintenance and Support Services Terms and Conditions (the “Maintenance Terms”) are part of that certain Software License Order Form (the “Order”), being incorporated in the Order by reference.

1. ADDITIONAL DEFINITIONS 

Certain capitalized terms used in these Maintenance Terms, not otherwise defined in the Software License Agreement – Terms and Conditions (the “Software Terms and Conditions”), which are also incorporated by reference into the Order, shall have the meanings set forth or cross-referenced below. Capitalized terms used in these Maintenance Terms that are not otherwise defined in these Maintenance Terms have the meaning set forth in the Software Terms and Conditions or Order. In these Maintenance Terms, “Agreement” refers to the Order and the Software Terms and Conditions.

1.1 “Covered Software” means, collectively, any proprietary Software application(s) of Scality for which licenses have been granted to Customer pursuant to the Agreement for a particular Supported Platform, provided that any particular Covered Software application shall remain a Covered Software only for so long as Customer continues to have such license rights under the relevant Agreement and only for the Supported Platform identified on the Order. The Customer is responsible for identifying all Covered Software and the Supported Platform (i.e., hardware and operating system) on which it is operating as of the beginning of the Maintenance and Support Services. If the Supported Platform information has not been communicated to Scality and is not kept up-to-date by Customer in communications to Scality all along the life of the Maintenance and Support Services, then Scality will not have any obligations to provide support or maintenance under the terms of these Maintenance Terms.

1.2 “Covered Software Error” will mean any material nonconformity of the Covered Software with the Documentation.

1.3 “Covered Software Update” will mean any minor version of the Covered Software, developed subsequent to the Effective Date, which implements minor improvements or augmentations, or which corrects failures of the Covered Software materially to conform to the then-current Documentation. For example, a release that is to the right of the decimal point (i.e., version 1.2 to 1.3) is a minor release and a release to the left of the decimal point (i.e., version 1.2 to 2.0) is not a Covered Software Update.

1.4 “Covered Software Upgrade” will mean any version of the Covered Software, developed subsequent to the Effective Date, which implements additional features or functions, or which produces substantial and material improvements with respect to the utility and efficiency of the Covered Software or adds new features or functionality to the Covered Software, but which does not constitute merely a Covered Software Update (as reasonably determined by Scality), and which is not marketed by Scality as a separate module, product and/or service.

1.5 “Covered Software Upgrades Optional Features” are specific features made available by Scality to Customer through a Covered Software Upgrade that can be separately licensed and can be available for purchase

1.6 “Priority 1” means a Covered Software Error where the Covered Software is not operational, in that mission critical functionality is not available.

1.7 “Priority 2” means a Covered Software Error where either: (a) the Covered Software is not fully operational, in that some mission critical functionality is available, but such functionality is not operating correctly; or (b) a complete failure of non-critical software options such as the supervisor module, the monitoring module, reporting module, and logging sub-systems.

1.8 “Priority 3” means all other situations in a production environment of the Covered Software.

1.9 “Technical Support” means the provision of responses by qualified Scality personnel to questions from Eligible Customer Personnel related to use and operation of the Covered Software, including basic instruction or assistance related to functional errors in the Covered Software. Technical Support does not apply to any hardware.

2. TECHNOLOGY MAINTENANCE

2.1 Error Corrections. Scality will use commercially reasonable efforts to adapt, re-configure or re-program the Covered Software, as applicable, in order to correct in a timely fashion any Covered Software Errors reported to Scality by Eligible Customer Personnel, as defined below, provided that if Scality determines in good faith that any such Covered Software Error is the result of errors or misstatements in the Documentation, Scality may correct such non-conformity solely by amending the Documentation, as necessary, and further provided that any failure or inability by Scality to correct any such Covered Software Error, or failure or inability to do so in a timely fashion, will in no event be deemed a breach of Scality’s obligations hereunder.

2.2 Procedural Workarounds. In the event that Scality fails or is unable to correct any Covered Software Error, as required by these Maintenance Terms, Scality will use commercially reasonable efforts to develop in a timely fashion procedures or routines, for use by end users of the Covered Software, which, when employed in the regular operation of, or access to, the Covered Software, will avoid or substantially diminish the practical adverse effects of the relevant Covered Software Error, provided that any failure or inability by Scality to develop any such procedure or routine, or failure or inability to do so in a timely fashion, will in no event be deemed a breach of Scality’s obligations hereunder.

2.3 Covered Software Updates; Covered Software Upgrades. From time to time Scality may, in its discretion, develop Covered Software Updates and/or Covered Software Upgrades. Scality will, during the License Term of these Maintenance Terms, make such Covered Software Updates and Upgrades available to Customer, by the same means or methods by which the relevant Covered Software is made available, provided that Customer has paid all fees due under this Agreement. This Agreement does not include Covered Software Upgrades Optional Features, which may be subject to specific fees. Any such Covered Software Updates and Upgrades provided hereunder will be deemed to constitute part of the relevant Covered Software and will be subject to all the terms and provisions hereof, including, without limitation, terms and provisions related to licenses, usage restrictions and ownership of such Covered Software.”

3. TECHNICAL SUPPORT

3.1 Support Obligation. Subject to Customer’s payment of support fees as required in Section 4 of these Maintenance Terms, Customer will be permitted to designate in writing to Scality up to two (2) Customer personnel for purposes of obtaining Technical Support from Scality (“Eligible Customer Personnel”). Scality’s Global Support Team is available to the Customer via a regional telephone number on a 24 x 7 basis for Priority 1 issues. For Priority 2 and 3 issues, as well as Service and Information Requests, Customer personnel can contact Scality for technical and maintenance support via Scality’s Service Ticket System or instant messaging (through Scality’s Instant Messaging server) during normal business hours (specific to the region). Scality will provide Technical Support to such Eligible Customer Personnel by means set forth in the following table, subject to the conditions regarding availability or response times with respect to each such form of access as set forth in the table.

Table 5.1(a) Problem Priority Levels and Guaranteed Response Times

3.2 Escalation. Upon receipt and acknowledgement of a Customer trouble ticket in Scality’s Service Ticket System, a Level 1 support technician staffing the Global Support Help Desk will thereupon take charge of the trouble event and “own” it from end-to-end, even if the ticket is escalated to a higher level Support Engineer, such as a Level 2 or Level 3 Support Engineer. The following table identifies the escalation path Scality will employ to serve the Customer.

Table 5.2.1(a) Internal Escalation Pathways for Trouble Resolution

3.3 Scality cloud monitoring solution. Customer will benefit from the standard version of Scality monitoring, alarming and capacity planning solution at no additional charge, subject to the use of a compatible version of Scality Software by Customer. The standard version of Scality monitoring solution provides information on the Software global operations to Customer and Scality Technical Services through an online monitoring platform and an alarming system.

3.4 Other Options. If Customer decides to purchase other Support packages, additional terms and/or benefits may apply and will be set forth in the applicable Order.

3.5 Customer Access. Customer shall provide such information and/or access to Customer resources as Scality may reasonably require in order to provide Technical Support under this Agreement, including, without limitation, access via the Internet or via direct modem connection to relevant Customer servers, access to Customer facilities, and/or access to, and assistance of, Customer personnel who possess information required by Scality for purposes of performing its obligations hereunder. Scality shall be excused from any non-performance of its obligations hereunder to the extent any such non-performance is attributable to Customer’s failure to perform its obligations under this Section 4.1.

3.6 Online Case Tracking System. Scality encourages our Customers to use our online service tools. Customers can open a service request online, update and view the status online, and receive notifications as we work on your service request. To open a service request, please log in to our support tracking tool at: https://support.scality.com. To properly qualify the support request, the customer is asked to fill in the category and the severity of the issue. Then the customer will be asked to provide a description of the problem. Providing details (logs, way to reproduce, version n°, etc…) is strongly encouraged as it helps speeding up the resolution process. For existing requests, it is possible to interact via e-mail. If so, please include the service request number in the email subject line.

4. LIMITATIONS TO TECHNICAL SUPPORT

4.1 Eligible Recipients. Scality shall have no obligation to provide Technical Support, by any means, to any entity or individual other than Eligible Recipients.

4.2 Technical Support Exemptions. Unless otherwise agreed by the Parties, Scality shall have no obligation to provide Technical Support with respect to any Covered Software Error resulting from (i) use of the Covered Software other than according to the terms of relevant Agreement; (ii) modification of the Covered Software by Customer or any third party, except as expressly permitted in writing by Scality; (iii) any combination or integration of the Covered Software with hardware, Covered Software and/or technology not provided by Scality, regardless of whether such combination or integration is permitted under the terms of the License Agreement; (iv) 3rd party software, monitoring, or other applications running on the Scality platform which have not been certified for implementation at the customer site or covered under maintenance agreement; (v) continued support requests for issues where Scality has provided an Update or Upgrade which has not been implemented by the Customer; (vi) enhancements requests; or (vii) implementation of the Software on platforms other than Supported Platforms.

4.3 Version Requirements. Unless otherwise agreed by the Parties, Scality shall not be required to provide Technical Support regarding use of any version other than the current version of the Covered Software as well as the last minor version following the last major version. Example: if the current Software Upgrade is Rev 6.0 and the last Software Update following the Rev 5.0 Software Upgrade is Rev 5.3, then Scality is committed to issue fixes only on Rev 6.0 and Rev 5.3.

4.4 General Protection of Scality Intellectual Property. Scality shall not be required to provide Technical Support to the extent the provision thereof might reasonably be expected to jeopardize or harm Scality’s rights in any intellectual property, or reveal trade secrets or other proprietary information of Scality not generally available to the public or to end users of the Covered Software.

4.5 No Source Code. Nothing in this Agreement shall be construed to give Customer a right to use, or otherwise obtain access to, any source code from which the Covered Software or any portion thereof is compiled or interpreted.

4.6 Limitations of Warranty and Liability. Scality makes no representations or warranties under these Maintenance Terms, and Customer acknowledges that these Maintenance Terms is subject to all disclaimers and limitations or liability set forth in the Master Terms.

5. Fees. In consideration for performance of Scality’s obligations under these Maintenance Terms, Customer shall pay to Scality, without offset or deduction, certain non-refundable fees, in such amounts as may be determined by reference to an Order. Unless otherwise provided in such Order, all such fees shall be due and payable within thirty (30) calendar days after an invoice is issued by Scality with respect thereto.

6. TERM 

6.1 Maintenance Term. These Maintenance Terms shall become effective when executed by both Parties (the date executed by the latter Party, the “Schedule Effective Date”) and shall continue in effect for a period of one (1) year, unless earlier terminated in accordance with this Section 6. Thereafter, these Maintenance Terms shall automatically renew for successive one (1)-year terms (the initial term and each such one-year renewal term, an “Annual Maintenance Term”), unless either Party provides written notice of its intent not to renew at least sixty (60) days prior to the end of the then-current initial term or renewal term, as applicable, provided that Scality shall have the option to modify the rates and prices with respect to any renewal term by notifying Customer of such new rates and prices at least ninety (90) days prior to the commencement of such renewal term. Notwithstanding the foregoing right of non-renewal of these Maintenance Terms, Scality agrees that it shall permit renewal of these Maintenance Terms (i.e., shall refrain from exercise its right of non-renewal) for not less than [one (1)] Annual Maintenance Term.

6.2 Maintenance Termination for Breach. Either Party may, at its option, terminate these Maintenance Terms in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and these Maintenance Terms shall terminate in the event that such cure is not made within such thirty (30)-day period.

6.3 Renewal of Lapsed Maintenance Term. In the event that Customer elects not to renew these Maintenance Terms at the conclusion of any Annual Maintenance Term (by providing notice as required by Section 6.1), Customer may subsequently renew and reinstate these Maintenance Terms at any time during the Term of this Agreement upon payment of fees at Scality’s then-current rates (i.e., applicable as of the date of reinstatement of these Maintenance Terms) due under these Maintenance Terms as if it had been renewed for each Annual Maintenance Term from and after the Schedule Effective Date.

6.4 Effect of License Termination. Upon any termination of these Maintenance Terms, Customer shall promptly pay to Scality all amounts due and remaining payable under these Maintenance Terms. All amounts payable under these Maintenance Terms are non-refundable, and no credit or rebate shall be payable to Customer upon any termination hereof.

^[1] Business hours and business days are defined respective to “normal business hours” within the time zone of the Customer (e.g., 9am to 5 pm, Monday through Friday) and business days in France, with the exclusion of any bank holidays).

July 3, 2018

Dedicated Care Service Supplemental Terms of Service

1. Dedicated Care Service

• The dedicated care service described in this Supplemental Terms of Service (the “Dedicated Care Service” or “DCS”) is provided as an annual subscription and covers all Software deployed at the department level but does not aim at covering Software of distinct company departments with separate operations teams. Dedicated Care Service provides to the Customer all the services at the applicable level of DCS purchased, either “DCS Fundamental” or “DCS Extended” as provided below. All DCS plans are subject to the execution by the Customer of a software license agreement related to the Software (the “Agreement”).

2. DCS Fundamental provisions

For customers that purchase a DCS Fundamental plan, the following support services are provided above standard support:

• Unlimited support calls in the context of supporting RING malfunction
• Up to 5 professional services days requests (person days equivalents) per year for advice or diagnosis. When a DCS plan is purchased at time of deployment, requests for professional services days initiated during the first 3 months after deployment do not count towards the annual limit.
• Access to the advanced DCS version of Scality cloud monitoring solution.  The advanced DCS cloud monitoring solution is a real-time monitoring, alarming and capacity planning tool. It collects and transmits to Scality Support Center and Customer status information on Scality’s Software global status and its components capabilities, operations, capacity trends and health. Information is displayed through a monitoring platform and an alarming system alerts Scality Support Center and Customer in the case of abnormal behaviors or events. Scality cloud monitoring solution Support Center will monitor all systems deployed at the customer sites on a 24×7 basis. However, Scality will not operate the Customer’s system. Data collection and remote monitoring of Scality’s Software are conducted with the limited purpose of improving Software performance, functionality and service quality provided to Customer.
• Scality will provide a named resource for the Customer (“Customer Solution Engineer” referred to as “CSE”) who shall act as the designated consultant for the Customer for any operations issue requiring senior technical staff attention. The CSE will be based in the same region as the Customer (e.g., Europe, America, Asia). As part of the Dedicated Care Service Scality will also provide the Customer with the following services:
• Additional Assistance. Scality will assist the Customer’s Eligible Support Recipients (e.g., the systems administration team) with diagnosing any problem encountered in the course of administering the Covered Software. Scality will endeavor to analyze and isolate the reported problem—escalating it through all three levels of technical support, as necessary—and will propose a remediation, even for problems not arising from an issue with the Covered Software. Upon request, Scality will also assist a Customer with other hardware and software vendors by explaining the nature of the problem to the appropriate hardware or software vendor whose product seem to be causing a problem. For certain problems, Scality may also suggest additional software or service capability to be added to the platform.
• Advice. Upon request, Scality will advise the Customer on storage and/or redundancy policies, and also advise on recommended changes.
• Monthly review calls with Customer If requested, to review the cloud monitor main key performance indicators (“KPI Review”).
• Remote Assistance. Scality will assist the Customer remotely during the installation of software upgrades. (For all upgrades, Scality recommends upgrading only a few machines of the system first and other machines after a period of satisfactory performance by the upgraded servers. In instances of a critical problem condition, an emergency procedure may be applied.)
• Escalation. In the unlikely event an issue needs executive management’s attention, Scality has a business level escalation procedure that the Customer can trigger if needed. This includes engagement in this order of the VP Technical Services, VP Engineering, Chief Technical Officer and finally Chief Operations Officer.

(Note: There are no service level guarantees or service level credits available on the DCS Fundamental plan)

3. DCS Extended 

A Customer who purchases a DCS Extended services plan is entitled to all of the above services and provisions for a DCS Fundamental plan (other than KPI Review, which is replaced as provided below), plus the additional services or provisions shall also apply:

• 15 additional professional services days requests (person days equivalents) per year for advice or diagnosis (for a total of 20).
• Quarterly Review. In place of KPI Review, a Scality Solution Engineer will conduct a quarterly review via teleconference with the Customer as may be scheduled by the Parties. This review will include a Support tickets report, a configuration and performance review, as well as a capacity assessment to predict the Customer’s future needs and a suggested roadmap on how best to meet those needs.
• Workshops. The Solution Engineer will visit the Customer once each year to conduct a 1-day workshop to review the objectives of the Customer and refine the configuration of the Covered Software.
• Service Levels. Scality will use commercially reasonable efforts to notify Customer of expected or forecasted peak activity periods. Except as provided in this Section 1, if Availability drops below 99% for one calendar quarter period, Customer’s sole and exclusive remedy shall be to terminate the Dedicated Care Service. For subscribers of the Dedicated Care Service, Scality will provide service levels for certain performance as follows. The service levels apply at the cluster level, separately for each functional cluster (i.e., all servers in the same RING) composed of a minimum of 6 servers. It does not apply at server level (i.e., a storenode being down does not impact the service level). In addition, the service level applies to all Covered Software options installed on a given cluster, but does not apply to management elements.

1. Response Time Service Level and Credits. As provided in the Maintenance and Support Services Terms and Conditions, Scality will respond to Priority 1 issues within fifteen (15) minutes; Priority 2 issues within four (4) hours; and Priority 3 issues within three (3) business days. Should Scality fail to acknowledge a request for a Priority 1 or Priority 2 issue in a time within the target response time in the Maintenance and Support Services Terms and Conditions, the Customer will be entitled to claim a credit of one percent (1%) of the annual preventive maintenance pack fee for that functional cluster. Credits are limited to 2 credits per calendar quarter, and for 2 events at least 7 calendar days apart. No credits are provided for failure to acknowledge a Priority 3 request.
2. Covered Software Availability Service Level and Credits. Subject to the restrictions and conditions set forth in this Section, including the restrictions set forth below, if the Covered Software (as limited in this Section) in a RING cluster is not Available 100% (the “Software Availability Percentage”) of the time in any given year, and it is determined through a post-resolution analysis that such failure is due to failure of the Covered Software in that RING cluster, then Customer will be entitled to claim a credit equal to ten percent (10%) of the annual Dedicated Care Service fee allocated to the Covered Software for the RING functional cluster. Credits are limited to 2 credits per calendar quarter, for 2 events at least 7 calendar days apart. Represented algebraically, Software Availability Percentage for any particular calendar year is calculated as follows:

Software Availability Percentage (%) = Available – Downtime
(Total Time in Period)
“Available” means the Covered Software is operational and all mission critical functionality is available. The measurement of the Service Availability Percentage is calculated based on the time that a Priority 1 incident is opened at the Scality call center until service is restored. If the service was to be unavailable at one moment in time, an in-depth analysis (Root Cause Analysis) is performed to determine if it results from a fault of Covered Software (as limited above). Such analysis is then sent to the Customer. Should the fault be assigned to the Covered Software, the Customer will be entitled to the credit described in this Section 1. Planned Downtime and maintenance operations timeframes do not count towards unavailability. The credit shall not be available to the Customer if: (a) the used capacity exceeds the recommended threshold (DISKWARN) set during the installation and/or monthly review with the Scality Solution Engineer to insure that all write operations are able to fulfill; or (b) Customer fails to deploy within a reasonable period of time the number of servers necessary to sustain the traffic (N is that number of servers) based on the Customer’s reported traffic volume during peak hour, growth expectation, and the hardware being deployed, as recommended by the Scality Solution Engineer.
Durability Service Level and Credits. Provided certain conditions are met in the design and operation of the RING platform, Scality guarantees durability as part of the Dedicated Care Service. The Covered Software is designed to provide durability of objects over a given year. This durability level corresponds to an average annual expected loss of objects based on the number of sites and protection method as described below. It is assumed that the minimum protection ratio is 3 copies and/or ARC 9+3.
1 site Durability Service Percentage: 99.99999999%
2 sites Durability Service Percentage: 99.999999999%
Represented algebraically, the Durability Service Percentage (“Durability Service Percentage”) for any particular calendar year is calculated as follows:

Durability Service Percentage (%) = Objects Preserved – Objects Lost

Total Objects

Note that in case of mixed configurations, the least durable SLA applies.
Should an RING cluster fail to meet the Service Availability or the Durability SLA, and it is determined through a post-resolution analysis that such failure is due to failure of the RING platform or failure of Scality to perform remedial measures within the target resolution time, the Customer will be entitled to claim a credit equal to ten percent (10%) of the annual Dedicated Service Pack fee for the RING functional cluster. Credits are limited to 2 credits per calendar quarter, for 2 events at least 7 calendar days apart.

• Service Level Conditions. All of the above Service Levels in Section 3.d are conditioned upon the following.
  In order to provide this service level, all effort must be used to identify possible causes of unavailability to happen on the RING before the fact. As such, to benefit from the SLA option, the Dedicated Care Service subscription is mandatory. Moreover, remote monitoring must be allowed through Scality cloud monitoring solution that must be installed and running to monitor all of the metrics of the Customer Software provided and required by Scality.
• Customer has notified the Acceptance of RING functional cluster to Scality.
• Customer has paid in full all outstanding Scality Software license fees, and support and maintenance fees (and has renewed its annual maintenance contract, at least one (1) month before the anniversary date, when appropriate).
• Customer provides “remote hand” service to reboot any server specified by its IP address within 1 hour of request
• The Customer employees operating the platform have received training from Scality on the Covered Software operation and are certified by Scality to have passed such training.
• Customer has adhered to the change management process mutually agreed to by Scality and the Customer.
• Customer deploys all upgrade releases that need to be deployed for fixing defects or installing security patches within ten (10) business days of Scality providing such to Customer.
• Customer has adhered to the Scality escalation procedure.
• The failure is not the consequence of a misconfiguration of the Covered Software by the Customer.
• The Customer allows Scality to apply changes to the functional cluster configuration without requesting Customer prior approval to solve a Priority 1 issue. Scality will provide notice of the change within 1 business day after a workaround has been implemented.
• Customer maintains the redundancy level of the hardware architecture.
• Customer has allowed Scality to perform or validate all software upgrades on Customer’s platform.
• No software other than certified Operating System by Scality and the Covered Software are running on the servers.
• Scality engineers have through the Internet access to production servers operating the Covered Software on a 24 x 7×365 basis.
• The probe/monitoring platform has access through the Internet to production RING servers, 24 x 7×365.
• Customer provides appropriate network and switches capacity, power and cooling in the datacenter.
• The Availability SLA does not apply when a datacenter is down.

If all of the above conditions are not met, then no credits shall be due to the Customer due to a failure to meet the Service Levels set forth in Section 3.d.
Service Level Exceptions. In addition to the requirements of Section 3.e, Scality will not be responsible for failures to meet service levels attributable to:
Acts or omissions of Customer, its agents, employees or contractors (including, without limitation, willful misconduct, negligence, breach of contract, or infringements of third party proprietary rights).
Customer’s failure to follow the conditions and instructions set forth in this Agreement and as provided by Scality.
Downtime due to a force majeure event; operation under a disaster recovery plan; or provision of the Covered Software after the expiration of the Term of the Agreement.

Definition. Unless otherwise above defined, capitalized terms used in this DCS will have the meaning set forth in the Agreement.