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”)

  1. Services

 

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

Pay-As-You-Go 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”).

Pre-Paid Subscriptions

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 )

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 is the highest.
  2. 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
  3. 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.
  4. 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.
  5. “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.

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. In the event that 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.