CentOS Support Service Agreement for Windows Azure

This OpenLogic Support Agreement is a legal agreement between OpenLogic, Inc., a Delaware Corporation ("OpenLogic") and you, either an individual or an entity ("you"). If you are an individual, you represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this agreement on behalf of an entity, you represent to us that you have legal authority to bind that entity.  

This agreement governs the support services ("Services") provided to you by OpenLogic for designated open source software stacks made available by OpenLogic on Windows Azure ("OSS Stacks"). This agreement is effective as of the date you purchased support for the OSS Stack(s) ("Effective Date").   

1.   Support Services

OpenLogic will provide technical support for the specific OSS Stacks that Windows Azure reports to OpenLogic you have purchased commencing on the Effective Date.  Technical support includes assistance with problem resolution, defects, and "how to" questions as well as advice and recommendations on installation and configuration.  Support for OSS Stacks will cover only Windows Azure instances on which the stack is deployed through the Windows Azure.  It will not cover support of the Windows Azure infrastructure or support for the OSS Stacks running on other infrastructure. 

OpenLogic will provide support 12 hours per day between 8:00 AM and 8:00 PM EST / EDT, five days per week for Developer Support and 24 hours per day, seven days per week for Production Support.  Technical support incidents can be submitted via email or by phone.  Each single unique defect or question about a Purchased Stack will be counted as an incident.  Unless otherwise indicated at the time of purchase, you may submit an unlimited number of technical support incidents.  Details about the technical support process, response times, types of issues, and severity of issues can be found here www.roguewave.com/products-services/services/open-source-software/cloud-services/azure/service-agreement.

2.   Limitations on Support 

OpenLogic will have no obligation to provide technical support or may cease providing the Services in the case of or with respect to any incident that is in whole or in part due to, caused by, or resulting from any of the following:

(i) a breach by you of this Agreement;

(ii) the operational characteristics of Windows Azure provided hardware, instances, or infrastructure;

(iii) any third party products, software, hardware, equipment, content, data or information, and any modifications, improvements, updates, new versions or new releases thereto or thereof, not provided by OpenLogic;

(v) any OSS Stack other than the most current release thereof made available by OpenLogic through Windows Azure;

(vi) use of any OSS Stack after OpenLogic has notified you to cease use thereof under this Agreement; or

(vii) your negligence, abuse, misapplication, or misuse of the OSS Stacks or the Services.  

OpenLogic will have no liability for any changes required by your hardware or software configuration which may be necessary to use any OSS Stack due to a workaround, error correction, or maintenance release.

3.   Fees, Term, and Termination

You will be billed by Windows Azure under the terms of the Windows Azure Customer Agreement.  The term of this agreement will commence on the Effective Date and will remain in effect until terminated by you or Windows Azure as per the Windows Azure Customer Agreement.  The Windows Azure Customer Agreement is located at www.roguewave.com/products-services/services/open-source-software/cloud-services/azure/service-agreement/.

4.   Intellectual Property Rights

4.1. Intellectual Property Rights.  Intellectual property rights includes, without limitation, all copyrights, trademarks, service marks, trade secrets, patents, moral rights, and any and all other legal rights protecting intangible proprietary information ("IPR").  All pre-existing intellectual property rights owned or licensed by either party are and will remain the exclusive property of that party.

4.2. License.  During the term of this Agreement, you may choose to provide OpenLogic with access to Your IPR to facilitate OpenLogic in providing the Services, in which case you grant to OpenLogic all rights and licenses in and to the Your Technology as may be necessary for OpenLogic to complete its obligations under this Agreement.  It should be noted that OpenLogic does not have access to Your Technology deployed on Windows Azure unless you choose to give OpenLogic access as part of providing the Services.  OpenLogic hereby grants to you a non-exclusive, non-transferable, worldwide license to use, reproduce, and modify any OpenLogic IPR provided to you during the course of performing the Services for your own internal business purposes.  To the extent any deliverable hereunder is a derivative work, modification, patch, or script of or directly relating to an open source software project (each an “Open Source Deliverable”), OpenLogic will license such Open Source Deliverable under the same open source software license as the open source project to which it relates.

4.3. OSS Stacks License. The OSS Stacks are comprised of open source software, which is subject to the terms of the open source software license(s) accompanying or otherwise applicable to that open source software.  Any other code created and supplied directly by OpenLogic is governed by the MIT License.  The terms of the open source software licenses apply to the open source software independent of the terms of the MIT License or this agreement.  Nothing in this agreement limits your rights under or grants rights to you that supersede the terms of any applicable open source software license. 

4.4. You acknowledge that your own distribution or deployment of instances containing or linking to the OSS Stacks or any other open source software may trigger open source license requirements for which you are responsible.

4.5. Open Source Community. In the process of providing the Services, OpenLogic occasionally finds bugs and errors in open source software as well as issues in how certain open source packages work together.  OpenLogic will make best efforts to work with open source communities to resolve bugs or defects and contribute those changes back for incorporation in future releases.   Due to the nature of open source development, OpenLogic can not guarantee that the open source communities will accept bug fixes. 

5.   Customer's Comments and Feedback

In the course of OpenLogic providing you with technical support, you may provide comments, suggestions, and other feedback regarding the OSS Stacks, the support services, or related topics to OpenLogic. You agree that OpenLogic will be free to use any such feedback you provide for any purpose, including without limitation implementing changes based on your feedback to the OSS Stacks, support,, or other offerings without attribution or compensation to you.

6.   Warranties. 

6.1. General.  Each party represents and warrants to the other party that: the performance of such party’s obligations hereunder do not and will not violate any law, rule or regulation applicable to such party. 

6.2. OpenLogic.  OpenLogic will perform all Services as stated under this Agreement.  If OpenLogic fails to comply with the previous sentence, OpenLogic will, at its sole discretion and as Client’s sole remedy and OpenLogic’s sole obligation for any such failure: (a) re-perform the Services in a manner that resolves the alleged failure; or (b) refund any Fees paid by Client attributable to the Services that are the subject of the failure. 

7.   Disclaimer

THE WARRANTIES SET FORTH IN SECTION 6 (Warranties) ARE THE SOLE AND EXCLUSIVE WARRANTIES MADE BY OPENLOGIC UNDER THIS AGREEMENT AND OPENLOGIC SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SERVICES, DELIVERABLES AND ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY. 

8.   Limitation of Liability

OPENLOGIC WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE), INCLUDING, BY WAY OF EXAMPLE, LOST REVENUE, LOST PROFITS, BUSINESS INTERRUPTION, AND INJURY TO REPUTATION, EVEN IF OPENLOGIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE TOTAL CUMULATIVE LIABILITY OF OPENLOGIC RELATING TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE TOTAL FEES PAID TO AMAZON BY CLIENT FOR SUPPORT PROVIDED BY OPENLOGIC DURING THE 3 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO SUCH LIABILITY. 

9.   Confidential Information.

9.1. Confidential Information.  For purposes of this Agreement, “Confidential Information” means any data or information regarding the business, finances, services or technology of either party provided to or otherwise obtained by the other party, including, without limitation, technical, marketing, financial, pricing, employee, and planning information, and any other data or information received or otherwise obtained under this Agreement that a reasonable person should have known, under the circumstances, was confidential or proprietary. 

9.2. Protection.  Each party (the “Receiving Party”) may from time to time receive or otherwise obtain Confidential Information from the other party (the “Disclosing Party”).  The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder.  The Receiving Party will protect the Disclosing Party’s Confidential Information in the same manner as the Receiving Party protects its own confidential information of a similar nature and with no less than reasonable care.

9.3. Exceptions.  The Receiving Party’s obligations with respect to any Confidential Information of the Disclosing Party will terminate if such information: (a) was already lawfully known to the Receiving Party as of the Effective Date; (b) is disclosed to the Receiving Party after the Effective Date by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party becomes, generally available to the public; or (d) is independently developed by the Receiving Party without access to, use of, or reference to, the Disclosing Party’s Confidential Information.  In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (ii) required by law or by the order of a court of similar judicial, regulatory or administrative body, provided that the Receiving Party notifies the Disclosing Party in advance of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.

10. General

10.1. Export.    You will comply with all applicable export and import laws and regulations in your use of the OSS Stacks.  You represent that you are not barred from receiving services under U.S. laws or other applicable jurisdiction, including without limitations, the Denied Persons List and the Entity List, and other lists issued by the U.S. Department of Commerce, Bureau of Industry and Security.  You represent that you are not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods.

10.2.      Assignment.  This agreement, or any of your rights and obligations under this agreement, cannot be assigned or otherwise transferred in whole or in part, and any such attempted assignment or transfer by Customer in violation of the foregoing will be null and void.

10.3.      Choice of law.  This agreement will be governed by the laws of the State of Colorado in the United States of America, without regard to conflicts of law principles.  The federal and state courts located in Denver, Colorado (and any other courts having jurisdiction over matters arising in Denver, Colorado) will have exclusive jurisdiction over any disputes arising under this agreement and the parties hereby irrevocably consent to the personal jurisdiction of such courts.  The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this agreement.

10.4.      Relationship of parties.  This agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between you and OpenLogic. There are no third-party beneficiaries to this agreement.

10.5.      Waiver.  All waivers under this agreement must be in writing.  Any waiver or failure to enforce any provision of this agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

10.6.      Severability.  If any provision of this agreement is held to be unenforceable, that provision will be modified so as to be enforceable, or if such modification is not possible, that provision will be removed and the remaining provisions will remain in full force.

10.7.      Survival.  Sections 4 (Intellectual Property Rights), 5 (Customer's Comments and Feedback), 7 (Disclaimer), 8 (Limitation of Liability), 9 (Confidential Information), and 10 (General) will survive termination or expiration of this agreement.

-- Last updated 5 June 2012.