THE ORIENTDB SUBSCRIPTION SERVICES TERMS AND CONDITIONS HAVE CHANGED AS OF MAY 15, 2019 TO THE BELOW. OrientDB Ltd. is an affiliate of Callidus Software Inc., d/b/a “CallidusCloud”, an SAP America, Inc. company.
Please read this agreement carefully. By selecting “I AGREE”, or accepting an Order Form or quote that incorporates these terms by reference, you confirm your agreement to these terms on behalf of the organization you are registering, and you confirm that you personally are authorized to accept this agreement on that organization’s behalf. This is a binding legal agreement.
Capitalized terms used in this document are defined in the Glossary.
2.1. Grant of
2.2 Authorized Users.
Customer may permit Authorized Users to use the Cloud Service. Usage is limited to the Usage Metrics and volumes stated in the Order Form. Access credentials for the Cloud Service may not be used by more than one individual, but may be transferred from one individual to another if the original user is no longer permitted to use the Cloud Service. Customer is responsible for breaches of the Agreement caused by Authorized Users.
2.3 Acceptable Use Policy.
With respect to the Cloud Service and Server Programs, Customer will not:
2.4 Verification of Use.
Customer will monitor its own use of the Cloud Service and report any use in excess of the Usage Metrics and volume. Callidus may monitor use to verify compliance with Usage Metrics, volume and the Agreement.
2.5 Suspension of Cloud Service.
Callidus may suspend or limit use of the Cloud Service if continued use may result in material harm to the Cloud Service or its users. Callidus will promptly notify Customer of the suspension or limitation. Callidus will limit a suspension or limitation in time and scope as reasonably possible under the circumstances.
2.6 Third Party Web Services.
The Cloud Service may include integrations with web services made available by third parties (other than Callidus’ Affiliates) that are accessed through the Cloud Service and subject to terms and conditions with those third parties. These third party web services are not part of the Cloud Service and the Agreement does not apply to them.
2.7 Mobile Access to Cloud Service.
If applicable, Authorized Users may access certain Cloud Services through mobile applications obtained from third-party websites such as Android or Apple app store. The use of mobile applications may be governed by the terms and conditions presented upon download/access to the mobile application and not by the terms of the Agreement.
2.8 On-Premise Components.
The Cloud Service may include on-premise components that can be downloaded and installed (including updates) by Customer. The System Availability SLA does not apply to these components.
2.9 Third-Party Application.
If Customer installs or enables a third-party application for use with a Cloud Service, Customer (i) is solely responsible for obtaining and maintaining the license or other rights for its use of the third-party application, and (ii) grants Callidus permission to allow the provider of that third-party application to access Customer Data (defined in the Agreement) as required for the interoperation of the third-party application and the Cloud Service.
Callidus provides access to the Cloud Service as described in the Agreement.
Callidus provides support for the Cloud Service as referenced in the Agreement.
Callidus uses reasonable security technologies in providing the Cloud Service. As a data processor, Callidus will implement technical and organizational measures referenced in the Order Form to secure personal data processed in the Cloud Service in accordance with applicable data protection law.
Callidus or Callidus’ Affiliates may create analyses utilizing, in part, Customer Data and information derived from Customer’s use of the Cloud Service and Consulting Services, as set forth below (“Analyses”). Analyses will anonymize and aggregate information and will be treated as Cloud Materials.
Unless otherwise agreed, personal data contained in Customer Data is only used to provide the Cloud Service and Consulting Services. Analyses may be used for the following purposes:
4.1. Customer Data
Customer is responsible for the Customer Data and entering it into the Cloud Service. Customer grants to Callidus (including Callidus’ Affiliates and subcontractors) a nonexclusive right to process Customer Data solely to provide and support the Cloud Service.
4.2 Personal Data.
Customer will collect and maintain all personal data contained in the Customer Data in compliance with applicable data privacy and protection laws.
Customer will maintain reasonable security standards for its Authorized Users’ use of the Cloud Service. Customer will not conduct or authorize penetration tests of the Cloud Service without advance approval from Callidus.
4.4 Access to Customer Data.
If applicable, Callidus will provide the Consulting Services, as mutually agreed by Customer and Callidus under a Statement of Work (“SOW”); such SOW(s) shall be subject to the terms of (i) the GTC and (ii) the SAP Consulting Services Supplemental Terms and Conditions to the GTC available at http://www.sap.com/agreements-cloud-services-consulting-supplement (“Consulting Services Supplement”). Each reference to SAP America, Inc., SAP SE, or SAP in the Consulting Services Supplement will be deemed to mean Callidus for purposes of a SOW. The defined term “Consulting Services” under the Consulting Services Supplement shall mean solely those services set forth in the SOW; the defined terms “Scope Document” and “Service Description” are inapplicable to the SOW. In the event of conflict, the terms of the SOW shall supersede the terms of the Consulting Services Supplement, which in turn shall supersede the terms of the GTC.
6.1. Fees and Payment.
Customer will pay fees as stated in the Order Form. Customer will be invoiced on Start Date (as provided in the applicable Order Form) for Year One. For each Subsequent Year and Renewal Term (if any), Customer will be invoiced in advance. Callidus may provide invoices to an email address provided by Customer. Fees for non- recurring services will be invoiced by Callidus on a one-time basis and paid by Customer upon commencement of the Subscription Term. Customer will reimburse Callidus for all pre-approved (by Customer) and appropriately documented travel and related expenses incurred by Callidus in performing any support for the Cloud Service. After prior written notice, Callidus may suspend Customer’s use of the Cloud Service until payment is made. Customer cannot withhold, reduce or set-off fees owed nor reduce Usage Metrics during the Subscription Term. All Order Forms are non-cancellable and fees non-refundable.
6.2 Excess Use
Customer’s use of the Cloud Service is subject to the Agreement, including the Usage Metrics and their volume stated in the Order Form. Any use of the Cloud Service that exceeds this scope will be subject to additional fees. Fees accrue from the date the excess use began. Callidus may invoice and Customer will pay for excess use based on applicable pricing in the Order Form. Customer will execute an additional Order Form to document subscriptions for additional Usage Metrics and their volume.
Fees and other charges imposed under an Order Form will not include taxes, all of which will be for Customer’s account. Customer is responsible for all taxes, other than Callidus’ income and payroll taxes. Customer must provide to Callidus any direct pay permits or valid tax-exempt certificates prior to signing an Order Form. If Callidus is required to pay taxes (other than its income and payroll taxes), Customer will reimburse Callidus for those amounts and indemnify Callidus for any taxes and related costs paid or payable by Callidus attributable to those taxes.
6.4 Fee Increases
At the beginning of each renewal term, Callidus may increase fees to reflect annual increases in consumer prices or costs. This increase will not exceed the greater of the percentage stated in the most recent consumer price index selected by Callidus or 3.3% per annum. The increase is applied on a cumulative, year-over-year basis beginning on either the start of the preceding term or date of last increase, whichever is later. Not raising fees is not a waiver of Callidus’ right to do so. Callidus may increase fees if Customer elects to reduce the Cloud Service, Usage Metrics or volume for any renewal term.
Customer will pay to Callidus all fees due within thirty (30) days of date of invoice. Unpaid fees will accrue interest at the maximum legal rate. Customer purchase orders are for administrative convenience and not a condition of payment. Payment is not dependent upon completion of any implementation or other services.
Personal Data Processing Agreement for SAP Clouds Services (“DPA”) available at http://www.sap.com/agreements-cloud-data-processing shall apply to Personal Data (as defined under DPA) processed by Callidus and its Subprocessors (as defined under DPA) in connection with its provision of the Cloud Service. Each reference to SAP America, Inc., SAP SE, or SAP in the DPA shall be deemed to mean Callidus for purpose of the Order Form between Callidus and Customer.
A party may terminate the Agreement:
8.3 Refund and Payments.
For termination by Customer or an 10.1(c) termination, Customer will be entitled to:
8.4 Effect of Expiration or Termination.
Upon the effective date of expiration or termination of the Agreement:
Sections 1, 6, 8.3, 8.4, 8.5, 10, 11, 12, 13 and 14 will survive the expiration or termination of the Agreement.
9.1. Compliance with law
Each party warrants its current and continuing compliance with all laws and regulations applicable to it in connection with:
9.2 Good Industry Practices.
Callidus warrants that it will provide the Cloud Service:
Customer’s sole and exclusive remedies and Callidus’ entire liability for breach of the warranty under Section 9.2 will be:
9.4 Warranty Exclusions.
The warranties in Section 9.2 will not apply if:
Except as expressly provided in the Agreement, neither Callidus nor its subcontractors make any representation or warranties, express or implied, statutory or otherwise, regarding any matter, including the merchantability, suitability, originality, or fitness for a particular use or purpose, non-infringement or results to be derived from the use of or integration with any products or services provided under the Agreement, or that the operation of any products or services will be secure, uninterrupted or error free. Customer agrees that it is not relying on delivery of future functionality, public comments or advertising of Callidus or product roadmaps in obtaining subscriptions for any Cloud Service.
10.1. Claims Brought Against
10.2 Claims Brought Against Callidus.
Customer will defend Callidus against claims brought against Callidus and its Affiliates and subcontractors by any third party related to Customer Data.
Customer will indemnify Callidus against all damages finally awarded against Callidus and its Affiliates and subcontractors (or the amount of any settlement Customer enters into) with respect to these claims.
10.3 Third Party Claim Procedure.
10.4 Exclusive Remedy.
The provisions of Section 10 state the sole, exclusive, and entire liability of the parties, their Affiliates, Business Partners and subcontractors to the other party, and is the other party’s sole remedy, with respect to covered third party claims and to the infringement or misappropriation of third party intellectual property rights.
11.1 Unlimited Liability.
Neither party will exclude or limit its liability for damages resulting from:
11.2 Liability Cap.
Subject to Sections 11.1 and 11.3, the maximum aggregate liability of either party (or its respective Affiliates or Callidus’ subcontractors) to the other or any other person or entity for all events (or series of connected events) arising in any twelve month period will not exceed the annual subscription fees paid for the applicable Cloud Service directly causing the damage for that twelve month period. Any “twelve month period” commences on the Subscription Term start date or any of its yearly anniversaries.
11.3 Exclusion of Damages.
Subject to Section 11.1:
11.4 Risk Allocation.
The Agreement allocates the risks between Callidus and Customer. The fees for the Cloud Service and Consulting Services reflect this allocation of risk and limitations of liability.
12.1. CALLIDUS Ownership.
Callidus, Callidus’ Affiliates or licensors own all intellectual property rights in and related to the Cloud Service, Cloud Materials, Documentation, Consulting Services, design contributions, related knowledge or processes, and any derivative works of them. All rights not expressly granted to Customer are reserved to Callidus and its licensors.
12.2 Customer Ownership.
Customer retains all rights in and related to the Customer Data. Callidus may use Customer-provided trademarks solely to provide and support the Cloud Service.
12.3 Non-Assertion of Rights.
Customer covenants, on behalf of itself and its successors and assigns, not to assert against Callidus and its Affiliates or licensors, any rights, or any claims of any rights, in any Cloud Service, Cloud Materials, Documentation, or Consulting Services.
13.1. Use of Confidential Information
The restrictions on use or disclosure of Confidential Information will not apply to any Confidential Information that:
Neither party will use the name of the other party in publicity activities without the prior written consent of the other, except that Customer agrees that Callidus may use Customer's name in customer listings or quarterly calls with its investors or, at times mutually agreeable to the parties, as part of Callidus' marketing efforts (including reference calls and stories, press testimonials, site visits, SAPPHIRE participation). Customer agrees that Callidus may share information on Customer with its Affiliates for marketing and other business purposes and that it has secured appropriate authorizations to share Customer employee contact information with Callidus.
If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.
14.2 No Waiver.
A waiver of any breach of the Agreement is not deemed a waiver of any other breach.
14.3 Electronic Signature.
Electronic signatures that comply with applicable law are deemed original signatures.
14.4 Regulatory Matters.
Callidus Confidential Information is subject to export control laws of various countries, including the laws of the United States and Germany. Customer will not submit Callidus Confidential Information to any government agency for licensing consideration or other regulatory approval, and will not export Callidus Confidential Information to countries, persons or entities if prohibited by export laws.
All notices will be in writing and given when delivered to the address set forth in an Order Form with copy to the legal department. Notices by Callidus relating to the operation or support of the Cloud Service and those under Sections 3.4 and 6.1 may be in the form of an electronic notice to Customer’s authorized representative or administrator identified in the Order Form.
Without Callidus’ prior written consent, Customer may not assign or transfer the Agreement (or any of its rights or obligations) to any party. Callidus may assign the Agreement to Callidus Affiliates.
Callidus may subcontract parts of the Cloud Service or Consulting Services to third parties. Callidus is responsible for breaches of the Agreement caused by its subcontractors.
14.8 Relationship of the Parties.
The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created by the Agreement.
14.9 Force Majeure.
Any delay in performance (other than for the payment of amounts due) caused by conditions beyond the reasonable control of the performing party is not a breach of the Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance.
14.10 Governing Law.
The Agreement and any claims relating to its subject matter will be governed by and construed under the laws of the Commonwealth of Pennsylvania, without reference to its conflicts of law principles. All disputes will be subject to the exclusive jurisdiction of the courts located in Philadelphia, Pennsylvania. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (where enacted) will not apply to the Agreement. Either party must initiate a cause of action for any claim(s) relating to the Agreement and its subject matter within one year from the date when the party knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s).
14.11 Entire Agreement.
The Agreement constitutes the complete and exclusive statement of the agreement between Callidus and Customer in connection with the parties’ business relationship related to the subject matter of the Agreement. All previous representations, discussions, and writings (including any confidentiality agreements) are merged in and superseded by the Agreement and the parties disclaim any reliance on them. The Agreement may be modified solely in writing signed by both parties, except as permitted under Section 3.4. An Agreement will prevail over terms and conditions of any Customer-issued purchase order, which will have no force and effect, even if Callidus accepts or does not otherwise reject the purchase order.
Callidus (OrientDB) Support Policy January, 2018
Latest Revision: January 2018
A. Subject to the conditions and remedies in this Exhibit, for each Service hereunder, Callidus warrants that the Response Goal below will be met:
|Priority Level||First Response Goal||Remedy Service Credits|
GMT Business Hours
|1 – Critical. Due to an error, the Production Environment Service or Server Program is down or seriously impacted, or the Customer data is lost or destroyed, and there is no workaround currently available.||3 Business hours*||2 hours||Maximum of 1% per month in the month if this Response Goal is missed.|
|2 – High. Due to an error, the Production Environment Service or Server Program is moderately affected on minor components. There is no workaround currently available or the workaround is cumbersome to use.||6 Business hours*||4 hours||Maximum of 1% Service Credit for the month this Response Goal is missed.|
|3 – Medium. The error is not critical – no data has been lost, and the system has not failed. The error has been identified and does not prevent normal operation, or the situation may be temporarily circumvented using an available workaround.||24 Business hours*||24 hours||Maximum of 1% Service Credit for the month this Response Goal is missed.|
|4 – Minor/Trivial. Non-critical errors, general questions, requests for enhancements to the Services or Server Programs.||72 Business hours*||72 hours||N/A|
*For Silver Level 10/5 Support, the response time is based upon available business hours.
B. To be eligible for the any remedy specified below, Customer must meet the following conditions:
|Data Quality||Imported data will be clean, correct, in Callidus's standard format, and able to be processed|
|Processing/Usage levels||Customer will remain within Servers licensed (all environments)|
|Issue Reporting||Customer will report issues in a timely manner using Callidus Issue Tracker, integrated with GitHub. Customers must provide a list of GitHub accounts for all the developers that will access the platform.|
C. Sole Remedy: Service Credits
i. “Claim” means a ticket submitted by Customer to the Callidus support desk within thirty (30) days after the month in which the service level metric was missed, and shall state the metric(s) not met.
ii. “Service Credit(s)” means the sole remedy Callidus will provide for a Claim. The Service Credit will be applied in the form of a credit or discount against a future invoice of Annual Fees for the On-Demand Service.
iii. The total Service Credits awarded for all Claims with respect to any month will not, under any circumstance, exceed five percent (5%) of one twelfth (1/12th) of the annual charge paid by Customer to Callidus under this Exhibit for the Services that are the subject of the Claims.
iv. THE SERVICE CREDITS PROVIDED TO YOU IN ACCORDANCE WITH THE SERVICE LEVEL WARRANTY ARE YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM.
D. THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE FOREGOING APPLICABLE SERVICE LEVEL WARRANTY AND SHALL APPLY EVEN IF SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
E. OTHER THAN THE EXPRESS APPLICABLE SERVICE LEVEL WARRANTY OF THIS SECTION, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CALLIDUS MAKES NO WARRANTIES OF ANY KIND UNDER THIS AGREEMENT OR APPLICABLE EXHIBIT(S), WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF NONINFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.