1. Support
Subject to the terms of this Agreement, Timescale will provide Customer with support or solutions services (“Support”) for which Customer has paid the applicable fees as set forth on an Order Form. For the avoidance of doubt, Customer’s purchase and use of Cloud Support Plans, Support for MST or Self-Managed TimescaleDB Community Edition , the JOIN Program, or any other support offering that may be commercialized by Timescale now or in the future, are all included in the definition of “Support” and governed by this Agreement. Support is only for Customer’s internal use for the environment(s) listed in an Order Form, unless expressly indicated otherwise. Support is intended for Timescale Cloud Services, its features and functions, only, and may not be used by Customer for any software, hardware or other element of Customer’s environment not provided by Timescale, nor may Customer use the Support to supply any services to any third party or for any environments for which Customer has not paid the applicable fees for support. Timescale will provide Customer with Support in accordance with the terms of this Agreement and with its Support Policy, attached below as Exhibit A.Customer understands and agrees that Timescale’s ability to provide the Support is dependent on Customer’s full cooperation. Customer will cooperate fully with Timescale by designating appropriately skilled personnel or representatives to liaise with Timescale, and timely provide Timescale with all required information, instructions, access and data to facilitate Timescale’s provision of the Support. Timescale shall not be responsible for any delays or interruptions in its performance of Support, or any claims arising therefrom, due to Customer’s lack of cooperation. Customer understands and agrees that the Support is advisory only, and Timescale does not guarantee that Customer will be ready for Production, or any other outcome, at the end of the Term.2. Payment
Customer will pay to Timescale all fees incurred in connection with Timescale’s provision of the Support, as set forth in each Order Form. All fees owed by Customer will be due net fourteen (14) days from the date of invoice, without deduction, setoff, defense or counterclaim for any reason, unless otherwise agreed-upon in the Order Form. In addition, Customer is otherwise responsible for, and will pay, all applicable customs, duties, sales, use, value added, withholding, or other taxes, federal, state or otherwise, however designated, which are levied or imposed because of the transactions contemplated by this Support Agreement, excluding only taxes based on Timescale’s net income. All payments are nonrefundable. Customer will pay interest, at a rate equal to one percent (1.5%) per month (or the highest rate permitted by law, if less) on any undisputed amount that remains unpaid thirty (30) days after the date of the invoice. Timescale shall have the right to suspend the provision of Support if any invoice remains unpaid thirty (30) days after the date of the invoice.3. Ownership
Timescale or its licensors retain all rights, title, and interest, including all intellectual property rights, in and to (a) the Cloud Services, the Timescale Software, including all related and underlying technology and documentation, and any derivative works, changes, corrections, bug fixes, enhancements, updates, modifications, or improvements of any of the foregoing (“Modifications”), including any Feedback, as well as to (b) any methodologies, tools, specifications, drawings, sketches, models, samples, records, documentation, works of authorship or creative works, ideas, knowledge, data or other materials incorporated in the Support (collectively, the “Timescale Materials”). Except for the express limited rights set forth in this Agreement, no right, title, or interest in any of the Timescale Materials is granted to Customer. Customer acknowledges that the licenses granted in this Agreement do not include the right to prepare any Modifications of the Timescale Materials. Timescale reserves all rights not expressly granted in these Cloud Terms. No rights are granted by implication.To the extent Customer provides Timescale with any suggestions, enhancement requests, recommendations, or other feedback to facilitate the provision of the Support (“Feedback”), Timescale may freely use, incorporate, and modify such Feedback in new or improved methodologies or tools developed by Timescale, Cloud Services, Timescale Software, products, services and marketing materials (including our website, social media accounts, and other communications), without any restriction or payment.Customer further agrees that Timescale, its employees and contractors, will be free to use and employ their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques or skills gained or learned during the course of any Support performed under this Agreement.The term “Confidential Information” will mean any and all information or proprietary materials (in every form and media) not generally known in the relevant trade or industry and which has been or is hereafter disclosed or made available by either party (the “Disclosing Party”) to the other (the “Receiving Party”) in connection with the efforts contemplated under this Agreement, including (i) all trade secrets, (ii) existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any related information, and (iii) information relating to business plans, sales or marketing methods and customer lists or requirements. For a period of five (5) years from the date of disclosure of the applicable Confidential Information, Customer and Timescale will each (i) hold the Confidential Information of the other in trust and confidence and avoid the disclosure or release thereof to any other person or entity by using the same degree of care as it uses to avoid unauthorized use, disclosure, or dissemination of its own confidential information of a similar nature, but not less than reasonable care, and (ii) not use the Confidential Information of the other party for any purpose whatsoever except as expressly contemplated under this Agreement or any Order Form; provided that, to the extent the Confidential Information constitutes a trade secret under law, the Receiving Party agrees to protect such information for so long as it qualifies as a trade secret under applicable law. Each party will disclose the Confidential Information of the other only to those of its employees and contractors having a need to know such Confidential Information and will take all reasonable precautions to ensure that such employees and contractors comply with the provisions of this section. Each party shall be liable for all violations of this Agreement by its employees and contractors. The obligations of either party under this section will not apply to information that the Receiving Party can demonstrate (i) was in its possession at the time of disclosure and without restriction as to confidentiality, (ii) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the Receiving Party, (iii) has been received from a third party without restriction on disclosure and without breach of agreement by the Receiving Party, or (iv) is independently developed by the Receiving Party without regard to the Confidential Information of the other party. In addition, the Receiving Party may disclose Confidential Information as required to comply with binding orders of governmental entities that have jurisdiction over it; provided that the Receiving Party gives the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or other appropriate remedy, discloses only such Confidential Information as is required by the governmental entity, and uses commercially reasonable efforts to obtain confidential treatment for any Confidential Information disclosed.
5. Warranty And Liability
5.1 Disclaimer and Limited Warranty. TIMESCALE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUPPORT, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FIRNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. CUSTOMER UNDERSTANDS THAT USE OF THE SUPPORT IS AT CUSTOMER’S OWN RISK AND THAT TIMESCALE PROVIDES THE SUPPORT ON AN "AS IS" BASIS "WITH ALL FAULTS" AND "AS AVAILABLE." CUSTOMER CARRIES THE ENTIRE RISK OF USING THE SUPPORT. TIMESCALE DOES NOT GUARANTEE THE ACCURACY OR TIMELINESS OF THE SERVICES. TO THE EXTENT PERMITTED UNDER LOCAL LAW, TIMESCALE EXCLUDES ANY IMPLIED WARRANTIES, INCLUDING FOR MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, AND NON-INFRINGEMENT. Timescale does not warrant that the Support will be provided uninterrupted or error-free, and makes no warranty that Support will meet users’ expectations or requirements. Notwithstanding the foregoing, Timescale provides the limited warranty that the Support will be performed by qualified personnel in a professional and workmanlike manner, in accordance with generally accepted industry standards, and will substantially conform to any applicable requirements set forth in the Order Form, for a following for a period of thirty (30) days following the date of Support delivery (the “Limited Warranty”). This Limited Warranty does not apply to (a) any Support that has been modified, misused, improperly or incompletely been implemented by Customer, or (b) any issues resulting from Customer’s use of third party products or services not approved by Timescale.
5.2 Remedies. If any Support fails to conform to the foregoing warranty in any material respect, the sole and exclusive remedy of Customer will be for Timescale, at its expense, to promptly use commercially reasonable efforts to cure or correct such failure. The foregoing warranty is expressly conditioned upon (i) Customer providing Timescale with prompt written notice of any claim thereunder prior to the expiration of the applicable Limited Warranty Period, which written notice must identify with particularity the non-conformity; and (ii) Customer’s full cooperation with Timescale in all reasonable respects relating thereto.
6. Employees
6.1 No Employee Relationship. Timescale’s employees are not and will not be deemed to be employees of Customer. Timescale will be solely responsible for the payment of all compensation to its employees, including provisions for employment taxes, workmen’s compensation and any similar taxes associated with employment of Timescale’s personnel. Timescale’s employees will not be entitled to any benefits paid or made available by Customer to its employees.
6.2 Subcontractors. Timescale may engage third parties or contractors to furnish services in connection with the Support, provided that such third parties have executed appropriate confidentiality agreements with Timescale. No engagement of a subcontractor will relieve Timescale from any of its obligations under this Agreement.
6.3 Non-Solicitation. Customer may not hire, or directly or indirectly solicit or employ, any employee of Timescale for twelve (12) months after the termination of this Agreement; provided, however, that nothing contained in this Agreement will prevent Customer from hiring any such employee who responds to a general hiring program conducted in the ordinary course of business or who approaches Customer on a wholly unsolicited basis.
7. Term And Termination
The term of this Agreement will commence on the Effective Date and will remain and continue in effect in accordance with the terms set forth in an Order Form, unless sooner terminated as provided under this Agreement. This Agreement may be terminated in whole or in part by either party (the “Non-Breaching Party”) upon written notice to the other party if any of the following events occur by or with respect to such other party (the “Breaching Party”): (i) the Breaching Party commits a material breach of any of its obligations under this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach or fails to reach an agreement with the Non-Breaching Party regarding the cure thereof; or (ii) any insolvency of the Breaching Party, any filing of a petition in bankruptcy by or against the Breaching Party, any appointment of a receiver for the Breaching Party, or any assignment for the benefit of the Breaching Party’s creditors. Upon termination, Timescale will be entitled to recover payment for all Support rendered through the date of termination. In the event of Termination or upon expiration of this Agreement, Sections 2, 3, 4, 5.3, 6, 7, 8 and 9 will survive and continue in full force and effect.8. Limitation Of Liability
UNDER NO CIRCUMSTANCE WILL TIMESCALE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, LOSS OF INCOME OR LOSS OF BUSINESS ADVANTAGE), WHETHER OR NOT FORESEEABLE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL TIMESCALE’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS OF LIABILITY WILL REMAIN IN FULL FORCE AND EFFECT, REGARDLESS OF WHETHER EITHER PARTY’S REMEDIES HEREUNDER ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.9. General Provisions
9.1 Assignment. Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld, and any such assignment in violation of this Section shall be void, except that (i) either party may assign this Agreement or rights granted hereunder to an Affiliate without the consent of the other party and (ii) the transfer of this Agreement or rights granted hereunder to a successor entity in the event of a merger, corporate reorganization, or acquisition shall not constitute an assignment for purposes of this Section. Affiliate means an entity that a party, directly or indirectly, controls, an entity that controls a party or an entity that is under common control with a party. For purposes of this provision, control means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity.
9.2 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. This Agreement supersedes all prior or contemporaneous discussions, proposals and agreements between the parties relating to the subject matter hereof. No amendment, modification or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties, except as expressly permitted in Section 9.3.
9.3 Reservation of Rights. Timescale reserves the right to alter the terms of this Agreement (and the Support Policy attached hereto) at any time. Customer agrees to review the latest version of the Agreement on Timescale’s website periodically to remain aware of any modifications to the Agreement about which Customer is not notified by Timescale. The Agreement available on the website will be dated so as to make clear what version is currently in force. Any use of Support after alteration of the Agreement will constitute acceptance by Customer of such changes. Customer’s sole remedy should Customer not agree with the altered Agreement shall be to cease Customer’s use of Support and to comply with Customer’s termination obligations outlined in Section 7 of this Agreement.
9.4 Logo Rights. Either Party may identify the other as a user or customer, as applicable, and may use the other’s name and logo in Customer or vendor lists, press releases, blog posts, advertisements, and on their respective websites.
9.5 Governing Law. This Agreement will be governed by the laws of the State of New York, without reference to the principles of conflicts of law. The parties acknowledge and agree that this Agreement relates solely to the performance of services (not the sale of goods) and, accordingly, will not be governed by the Uniform Commercial Code of any State having jurisdiction. In addition, the provisions of the Uniform Computerized Information Transaction Act and United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. All Support services are Commercial Items as that term is defined in the Federal Acquisition Regulation (FAR) at 48 C.F.R. 2.101.
9.6 Mediation. The parties will attempt to resolve any dispute related to this Agreement informally, initially through their respective management, and then by non-binding mediation in New York County, New York. Any litigation related to this Agreement shall be brought in the state or federal courts located in New York County, New York, and only in those courts and each party irrevocably waives any objections to such venue. All written notices must be in writing and will be effective three (3) days after the date sent to the addresses shown on the applicable Order Form.
9.7 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable.
9.8 No Waiver; Force Majeure, No Third-Party Beneficiaries. No waiver of rights by either party may be implied from any actions or failures to enforce rights under this Agreement. Neither party will be liable to the other for any delay or failure to perform due to causes beyond its reasonable control (excluding payment of monies due). Unless otherwise specifically stated, the terms of this Agreement are intended to be and are solely for the benefit of Timescale and Customer and do not create any right in favor of any third party.
EXHIBIT A
This Support Services Policy outlines the Support in greater detail.OverviewTimescale Support is delivered over a specific term as part of a subscription and provides expert technical support, technical assistance, Software Updates, documentation, and knowledge-base access. Support may be provided throughout the entire data application and operational lifecycle: from development and proof-of-concept, to QA / test, to deployment, and during production.Timescale offers Support to Customer’s Named Contacts for general guidance and to fix Errors with the Software or Cloud Services, as may be applicable and agreed-upon in an Order Form between the parties. Timescale will make commercially reasonable efforts to respond to Customer service requests delivered by a Named Contact to Timescale within a Target Response time, as specified below, based on the severity of the service request.
Support Services PrerequisitesCustomer agrees to appoint a specific individual for each Named Contact and will notify Timescale in the event of any change. Named Contacts will be enabled to email questions to the Timescale point of contact, and use the Timescale Support Portal which may not be shared with other individuals in the Customer’s organization. Named Contacts may not automatically forward requests from other individuals who are not also Named Contacts. Each Named Contact must have full administrative access to all databases, services, files, and file systems, as applicable, that are required for troubleshooting and proper operation of the Software or Cloud Services, if applicable. Named Contacts must communicate with Timescale in English.Customer will cooperate with and provide assistance to Timescale as Timescale may reasonably request in order to assist Timescale in the performance of Support, including, without limitation, providing all necessary assistance and information (according to the formats, templates, and information as specified by Timescale) to Timescale‘s support personnel reasonably required to enable such personnel to determine if a problem is related to an Error or is due to some other issue.Customer will use commercially reasonable efforts to provide Timescale functioning test code which reproduces and isolates the Error. The test code will have extraneous comments and code removed, will be fully self-contained and automated to the extent possible, and will demonstrate the precise Error reported rather than other possible problems. The test code must be reproducible on Timescale‘s test systems. If Customer finds it necessary or expedient to include third-party code or libraries in the test code submitted to Timescale, Customer is responsible for obtaining permission from the applicable third party for such submission. Timescale undertakes no support obligations whatsoever with respect to any products other than the Software or Cloud Services, if applicable. If Customer does not provide test code which reproduces the problem, Timescale may be unable to resolve the Error.Customer will use commercially reasonable efforts to provide Timescale with access (via screen share) to the extent reasonably necessary to allow Timescale to provide the Support Services. If Customer does not provide Timescale with such access, Timescale may be unable to correct the Error.In the event that an Error is discovered in the Software, Customer may notify Timescale of the Error via a Timescale-designated support portal (for Severity 1 and 2 Errors) or email, providing the standard problem description information as defined by Timescale‘s support group. Response delivery is as set forth below. Customer must provide Timescale with a continually-available engineer who will promptly assist the support and development organizations with data gathering, testing, and applying all fixes to the applicable environment for Severity Level 1 (Critical) or Severity Level 2 (High) Errors.
Release UpdatesTimescale provides Updates to Software as Major Releases, Minor Releases, and Maintenance Releases. Timescale delivers Support Services in two distinct phases, Full Support and Technical Guidance. All new capabilities and product enhancements will be made to the latest Major Release or Minor Release, while Maintenance Releases may also be made to older Major Releases and Minor Releases.
Support EscalationCustomer may escalate a Support issue if Timescale does not respond to any of Customer‘s support request(s) in a manner required under this Policy or if Customer is concerned with the progress or resolution of a reported Support issue.
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