Legacy Legal Terms of Service

This Agreement constitutes a legal agreement between Silk Inc. or Affiliate (“Silk”) and the party that has executed a quotation or purchase order that refers to or references this Agreement. This Agreement is an integral part of any such quotation or purchase order. By executing such quotation or purchase order, you agree to all the terms and conditions of this Agreement.

This “Agreement” consists of all of (1) the Master Terms and Conditions (the “Master Terms”); (2) the Subscriptions Descriptions Exhibit attached as Exhibit A (the “Subscriptions Descriptions Exhibit”) and (3) the Silk Support Terms and Conditions Agreement attached as Exhibit B (the “Support Terms and Conditions”).

BY CLICKING “ACCEPT” OR BY EXECUTING OR CONFIRMING AN ORDER FORM TO WHICH THIS AGREEMENT HAS BEEN INCORPORATED, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THE AGREEMENT AND AGREE TO BE BOUND BY IT. IF YOU ARE AN INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU HEREBY REPRESENT AND WARRANT TO SILK THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY AND BIND SUCH ENTITY TO THESE TERMS, IN WHICH CASE, THE TERMS “YOU” AND “YOUR” AND “CUSTOMER” WILL REFER TO SUCH ENTITY.

 

  1. Services

 

 

  1. Evaluation Service

Silk may grant you access to the Solution on a trial basis (the “Evaluation Service”). You may only use the Evaluation Service for your internal evaluation purposes for a period of thirty (30) days, unless otherwise stated in an Order Form (the “Evaluation Period”). Notwithstanding any other provision of this Agreement, you understand and acknowledge that Silk is providing you with access to the Evaluation Service (i) on an “AS IS” basis; (ii) with no maintenance or support; and (iii) with no indemnification obligation by Silk. Silk disclaims all warranties and makes no representations in connection with your access and use of the Evaluation Service. Silk may restrict and limit your access to the Evaluation Service and may block some features that may be provided as part of the Solution. At the end of the Evaluation Period, you shall cease accessing and using the Evaluation Service which will be terminated unless: (i) your Order Form included an auto-renewal clause which converts your Evaluation Service to a full Subscription; or (ii) you execute a new Order Form.

  1. Invoicing and Payment

 

  1. Deployment of the solution.
  1. Warranty; Support.
  1. Indemnification; Limitation of Liability

6.1               Indemnification by Silk.  Silk shall defend (or at its option settle), at its expense, any suit, claim or proceeding brought against Customer by a third party to the extent based upon a claim that Solution (but not including any hardware or Servers) infringes or misappropriates any intellectual property right held by a third party and Silk will indemnify Customer against, and hold it harmless from, any cost, loss, damage or liability (including reasonable attorney’s fees) attributable to such suit, claim or proceeding that is finally awarded against Customer (or agreed to in settlement by Silk), provided that Customer: (i) promptly notifies Silk in writing of each such suit, claim or proceeding; (ii) provides all assistance and information reasonably required for the defense and settlement of the suit, claim or proceeding; and, (iii) grants Silk sole control of the defense and all negotiations for settlement of such claim. If the use of the Solution is subject to an infringement claim or Silk reasonably believes it will be subject to such an infringement claim, Silk may, at its sole expense and option: (a) procure for the Customer the right to continue using the Solution as set forth in the Agreement; (b) replace the Solution with a non-infringing product of equivalent function and performance; or (c) modify the Solution to be non-infringing. If Silk elects not to employ any of the options contained in the previous sentence during the Term, Silk may terminate this Agreement and refund to Customer all pre-paid amounts in respect of unused periods. Silk has no liability or obligations hereunder in respect of any Servers or other hardware or cloud infrastructure, or in respect of the use of the Solution not in compliance with this Agreement, or from any claim to the extent resulting from the use of the Solution in combination with third party software, hardware or services, or from any modification to the Solution not made on behalf of Silk.

6.2               Limitation of Liability. Notwithstanding anything to the contrary in the agreement, in no event shall Silk, its present and former parents, subsidiaries, affiliates, representatives, insurers, suppliers, distributors or licensors be liable for any punitive, special, incidental, consequential, indirect or exemplary damages, (including, but not limited to, loss of property or equipment, loss of profits, loss of revenues, loss of data, business interruption, damage to business reputation, or loss of use)., The maximum liability of Silk and its present and former parents, subsidiaries, affiliates, representatives, insurers, suppliers, distributors and licensors arising out of the agreement, shall not exceed the actual payments received by Silk from the customer in the period of the prior 12 months, under the agreement. Silk does not provide any Servers or cloud infrastructure, and Silk shall not have any liability in respect of the Servers or cloud infrastructure or in respect of any changes in the compatibility or interoperability of the Servers or cloud infrastructure with the Solution or in respect of any services provided by the third party providing the Servers or cloud infrastructure.

  1. Data Protection and Privacy. Silk shall generally not have access to any data stored by Customer using the Solution. Silk’s Clarity tool shall provide Silk with data concerning the use or access of the Solution by Customer. By analyzing the information received, Silk may compile statistical information across its install base. Such statistical information is anonymous, and Silk will not associate such statistical information with specific users without the consent of the applicable user. Silk may use such statistical data to analyze and improve its Solution and other services and technology, and understand trends and customer needs. Silk may share such anonymous information with its commercial partners.
  1. Intellectual Property and Confidentiality
  1. Term and Termination.
  1. Miscellaneous

EXHIBIT A: SUBSCRIPTIONS DESCRIPTIONS

Enterprise Subscriptions

Usage of the Silk platform when licensed by an Enterprise Subscription is measured by either “Used Capacity” or “Active c.nodes”Pre-Paid Enterprise Subscription

The terms and conditions of each Pre-Paid Subscription is as follows:

  1. A Pre-Paid Subscription is a pre-paid subscription for the number of full months of an instance of the Silk Software (the “Pre-Paid Subscription Period”) as indicated on the applicable purchase order or Quotation. The Customer cannot terminate the Pre-Paid Subscription during the applicable Pre-Paid Subscription Period unless the Customer terminates the Agreement (and the Term and all active Subscriptions). No fees for a Pre-Paid Subscription are refundable by Silk to the Customer, except in the event Customer terminates the Agreement due to the uncured material breach of Silk, in which event Silk shall refund pre-paid amounts for unused periods )calendar days that have not elapsed during the applicable Pre-Paid Subscription Period).
  2. Upon the expiration of the then effective Pre-Paid Subscription Period the Customer shall be deemed to have elected to subscribe to a Pay-As-You-Go Subscription immediately upon the expiration of the then effective Pre-Paid Subscription Period unless Customer provides Silk with 30 days prior written notice otherwise prior to the expiration of the Pre-Paid Subscription Period.
  3. In addition, at the end of each month during the Term (each an “Applicable Month”), Silk will: (a) determine the Customer’s Used Capacity or Number of Active c.nodes on the Applicable Determination Date for all of the Customer’s then active Pre-Paid Subscriptions and add them together (the “Actual Aggregate Monthly Pre-Paid Used Capacity or Active c.nodes”); (b) determine whether the Customer’s Actual Aggregate Monthly Pre-Paid Used Capacity or Active c.nodes on the Applicable Determination Date exceeds the Monthly Pre-Paid Used Capacity Or Number of Active c.nodes (as defined in the applicable quote ) that the Customer purchased pursuant to all then active Pre-Paid Subscriptions (the “Aggregate Pre-Paid Monthly Used Capacity or Active c.nodes”); and (c) if the Customer’s Actual Aggregate Monthly Pre-Paid Used Capacity or number of c.nodes on the Applicable Determination Date exceeds the Aggregate Pre-Paid Monthly Used Capacity or Active c.nodes, determine such excess Used Capacity Or Active c.nodes (in TiBs or c.nodes) (the “Overage TiBs or c.nodes”) and charge the Customer an additional fee for the Applicable Month equal to the number of Overage TiBs or c.nodes multiplied by the dollar amount in the Applicable Month Overage fee (as defined in the applicable quote )

Pay-As-You-Go Enterprise Subscription

The terms and conditions of a Pay-As-You-Go Subscription are as follows:

  1. A Pay-As-You-Go Subscription is a month-to-month subscription to an instance of the Silk Software which means that the Customer can terminate a Pay-As-You-Go Subscription pursuant to the first sentence at the end of any calendar month during the Term so longas it provides Silk with written notice of such termination (a “Pay-As-You-Go Only Termination Notice”) at least fourteen (14) calendar days prior to the end of the month which is the last month of the Pay-As-You-Go Subscription (the “Final Pay-As-You-Go Only Month”). Silk or its certified reseller may terminate a Pay-As-You-Go Subscription with 180 days prior written notice.
  2. At the end of each month during the Term (each an “Applicable Month”), Silk will determine the Customer’s Used Capacity or Number of Active c.nodes on the Applicable Determination Date, and then charge the Customer a fee for the Applicable Month equal to the fee per TiB or per Active C-node as defined on the applicable quote (the “Pay-As-You-Go Only Monthly Fees”).

Express Subscriptions

Usage of the Silk platform when licensed by any Pre-Paid Express Subscription is measured by “Silk Credits”.

Pre-Paid Express Subscription

The terms and conditions of each Silk Pre-Paid Express Subscription are as follows:

  1. The Silk “Pre-Paid Express Subscription” is a pre-paid subscription for the number of full months of an instance of the Silk Software, (the “Pre-Paid Express Subscription Period”) as indicated on the applicable purchase order or Quotation, Usage of the Silk platform when licensed by the Pre-Paid Express Subscription is measured by Silk Credits. The minimum quantity of Silk Creditsper platform, is ten (10). The Customer cannot terminate the Pre-Paid Express Subscription during the applicable Pre-Paid Express Subscription Period unless the Customer terminates the Agreement (and the Term and all active Subscriptions). No fees for a Pre-Paid Express Subscription are refundable by Silk to the Customer, except in the event Customer terminates the Agreement due to the uncured material breach of Silk, in which event Silk shall refund pre-paid amounts for unused periods (Calendar days that have not elapsed during the applicable Pre-Paid Express Subscription Period).
  2. Upon the expiration of the then effective Pre-Paid Express Subscription Period the Customer shall be deemed to have elected to subscribe to a Pay-As-You-Go Express Subscription immediately upon the expiration of the then effective Pre-Paid Express Subscription Period unless Customer provides Silk with 30 days prior written notice otherwise prior to the expiration of the Pre-Paid Express Subscription Period.
  3. In addition, at the end of each month during the Term (each an “Applicable Month”), Silk will: (a) determine the Customer’s Used Silk Credits on the Applicable Determination Date for all of the Customer’s then active Express Subscriptions and add them together (the “Actual Aggregate Monthly Pre-Paid number of Silk Credits”); (b) determine whether the Customer’s Actual Aggregate Monthly Pre-Paid number of Silk Credits on the Applicable Determination Date exceeds the Monthly Pre-Paid defined number of Silk Credits (as defined in the applicable quote ) that the Customer purchased pursuant to all then active Express Subscriptions (the “Aggregate Pre-Paid used number of Silk Credits”); and (c) if the Customer’s Actual Aggregate Monthly Used number of Silk Credit on the Applicable Determination Date exceeds the Aggregate Pre-Paid Monthly number of Silk Credits determine such excess Used number of Silk Credits (the “Overage Silk Credits”) and charge the Customer an additional fee for the Applicable Month equal to the number of Overage Silk Credits multiplied by the dollar amount in the Applicable Month Overage fee (as defined in the applicable quote).

Pay-As-You-Go Express Subscription

The terms and conditions of a Pay-As-You-Go Express Subscription are as follows:

  1. A Pay-As-You-Go Express Subscription is a month-to-month subscription to an instance of the Silk Software which means that the Customer can terminate a Pay-As-You-Go Express Subscription pursuant to the first sentence at the end of any calendar month during the Term so longas it provides Silk with written notice of such termination (a “Pay-As-You-Go Express Subscription Termination Notice”) at least fourteen (14) calendar days prior to the end of the month which is the last month of the Pay-As-You-Go Express Subscription (the “Final Pay-As-You-Go Express Subscription Only Month”). Silk or its certified reseller may terminate a Pay-As-You-Go Express Subscription with 180 days prior written notice.
  2. At the end of each month during the Term (each an “Applicable Month”), Silk will determine the Customer’s Used Number of Silk Credits on the Applicable Determination Date, and then charge the Customer a fee for the Applicable Month equal to the fee per Silk Credits as defined on the applicable quote (the “Pay-As-You-Go Express Subscription Monthly Fees”).

Definitions

  1. “Applicable Determination Date” means the calendar day during each calendar month during the Term that the Customer’s Used Capacity Or number of Active c.nodes Or Silk Credits, is the highest.
  1. “Subscription Period” means the period for which Customer has purchased a subscription for the applicable instance of the Solution, as set forth on the applicable Quotation. All Subscription Periods commence on the Subscription Start Date
  1. “Subscription Start Date” means the earlier of either (a) fourteen days from the receipt by Silk or its authorized reseller of a signed purchase order or Quotation from Customer, or (b) the actual date that the applicable instance of the Solution is deployed.
  1. “Used Capacity” means the Customer’s actual usage of net physical storage as measured across all instances of the Solution used by Customer, including all instances on private and public cloud Servers.
  1. “Number of Active c.nodes ” means all the Customer’s c.nodes as measured across all instances of the Solution used by the Customer, including all instances on private and public cloud Servers.
  1. ‘Silk Credit” One Silk Credit, as part of an Express Subscription, entitles the use of one (1) c.nodes and one (1) TiB, for example 10 Silk Credits will entitle the usage of two (2) c.nodes and five (5) TiB.

EXHIBIT B: SILK SUPPORT TERMS AND CONDITIONS

Silk shall provide support in respect of Supported Instances pursuant to the terms and conditions of these Silk Support Terms and Conditions (“Support Services”).

  1. Problem Correction and Response Times.
Case Severity Definition Target Response Objective

 
Severity 1 – Critical Supported Instance is not serving data.

 

In a severity 1 case, both Silk’s representatives and the Customer representatives must be committed to work on the issue in full cooperation and around the clock until a solution or an acceptable workaround is in place

 

 Within 30 min
Severity 2 – High Supported Instance is serving data with meaningful impact on business operations.

 

 Within 2 hours
Severity 3 – Medium Supported Instance is experiencing an anomaly, or unexpected behavior which leads to an inconvenience, but has little or no impact on the customer business operations.

 

 Within 12 hours
Severity 4 – Low Information/technical question

 

 With one Business Day
  1. Customer’s Responsibilities. Silk’s provision of the Silk Support Services is subject to the Customer’s compliance with the terms and conditions of this Agreement, including the following:

 

 

  1. Data Resiliency. Silk offers varying levels of data resiliency, as will be comunicated to the customer from time to time. All mechanisms of data resiliency provided by Silk depend on underlying services provided by the Servers or the cloud infrastructure or other hardware. Silk shall not be responsible for any failure of data resiliency obligations to the extent resulting from the failure of the Servers or cloud infrastructure or other hardware, the lack of the required features in the Servers or the cloud infrastructure or other hardware, or the failure to properly implement the requiored mechanisms in the Servers or the cloud infrastructure or other hardware.
  1. Certification and Inspection.

 

  1. Support Reinstatement. If the Customer allows the Support Term to expire and subsequently wishes to re-subscribe to the Silk Support Services, Silk reserves the right to:
  1. Limitations. Silk shall not have any obligation to provide the Silk Support Services with regard to:

(a)        any Problems resulting from the Servers or any other hardware issues;

(b)        any Supported Instance, to the extent such Supported Instance: (i) has been used other than in accordance with this Agreement or applicable documentations, or other Silk instructions; (ii) has been modified, repaired, serviced, maintained or altered by any person or entity not certified by Silk to do so; (iv) has been deployed or removed by any person or entity not certified by Silk to do so; (v) has been damaged by causes beyond the control of Silk; (vi) has been damaged as a result of any power surge or power failure; (vii) has been damaged by the Removal or reconfiguration of the Supported Instance; (viii) has been damaged as a result of the Customer’s failure to provide a proper environment for the Supported Instance.

  1. Suspension. Silk may , by providing at least thirty (30) calendar days prior written notice suspend any Silk Support Services provided hereunder (a) during any period that Customer is delinquent in making payments hereunder or (b) if the Used Capacity for a Silk Product under Subscription does not equal at least five (5) TIB for at least three (3) consecutive calendar months during the Support Term or (c) The Number of Active c.nodes does not equal at least two (2) c.nodes , unless defined otherwise in an applicable quote
  2. Definitions.