Last revised: 05/14/24
These VMware White Label – Product Terms of Use (“Product Terms”) are entered into by and between Otava, LLC (“Otava”) and Client, on the effective date set forth in the Sales Order (“Effective Date”). These Product Terms contain additional terms and conditions specific to the VMware White Label Program Services and are not intended to replace or supersede the Master Agreement between the Parties, unless expressly agreed upon in writing by both Parties. Client understands that these Product Terms are legally binding upon Client where Client’s Sales Order includes VMware White Label Program Services as a line item, and Client agrees to be bound by these Product Terms. Otava and Client are referred to herein collectively, as the “Parties” and individually, each a “Party.”
2.1. “Add‑Ons” means that certain software offered by Broadcom, Inc. or its subsidiaries, that Broadcom makes available for purchase as an add‑on component to a VMware offering, including, without limitation, vSAN Enterprise, VMware Firewall, VMware Load Balancer, and Tanzu Mission Control – Self Managed, as such list of offerings may be amended by Broadcom from time to time.
2.2. “Agreement” means the Master Agreement entered into between the Parties together with these Product Terms, Statements of Work, if any, and all product-specific terms linked to or referenced in the Master Agreement.
2.3. “Client Infrastructure” means the infrastructure controlled or otherwise used by or on behalf of Client. Client Infrastructure does not include the Otava Cloud.
2.4. “Hosting Customers” means the entities purchasing services from Client for such entities own internal use. Hosting Customer does not include any entity that purchases services from Client for resale or sublicense, including without limitation managed services providers, software or technology resellers, website hosting providers, or the like.
2.5. “Master Agreement” means that certain master agreement governing the relationship between the Parties, which is called the General Terms of Sale, Terms and Conditions, the Master Services Agreement, or the Master Terms, as applicable.
2.6. “Otava Cloud” means the infrastructure-as-a-service infrastructure that is controlled and maintained by Otava and which Otava uses to deliver its services to clients. Otava Cloud does not include any equipment, hardware, or software which operates outside of Otava’s premises.
2.7. “Sales Order” means a separately executed document that describes the Services to be performed by Otava.
2.8. “Services” means the services purchased by Client from Otava as set forth in one or more Sales Orders.
2.9. “VMware Offering” means that certain VMware branded virtualization software and technology offered by Broadcom, Inc. or its subsidiaries, which is accessible at https://www.vmware.com, or such other url as specified by Broadcom. VMware Offering includes Add‑Ons .
2.10. “VMware Terms” means, collectively and individually, as each of the below may be modified, reissued, and renamed by Broadcom from time to time:
(a) Broadcom Advantage Partner Program Guide, which is available at the Broadcom Advantage Partner Program portal, at such other url as specified by Broadcom, or, upon Client’s written request, from Otava;
(b) Broadcom Advantage Partner Program Terms and Conditions, which are available at the Broadcom Advantage Partner Program portal, at such other url as specified by Broadcom, or, upon Client’s written request, from Otava;
(c) Broadcom End User Agreement (which may also be called the Foundation Agreement), which is available at https://docs.broadcom.com/doc/end-user-agreement-english, or such other url as specified by Broadcom;
(d) Broadcom Product Guide for VMware, which is available at https://www.vmware.com/go/product-guide, or such other url as specified by Broadcom;
(e) Broadcom Product Licensing Guide for the VMware Cloud Provider, which is available at the Broadcom Advantage Partner Program portal, at such other url as specified by Broadcom, or, upon Client’s written request, from Otava; and
(f) the VMware End User Agreement.
2.11. “VMware End User Agreement” means, collectively, the terms governing Client’s use of the VMware Offering, including support terms, the specific program documentation, and SaaS listing(s) applicable to the VMware Offering, which are located at https://www.vmware.com/agreements.htm, or such other url as specified by Broadcom.
2.12. “White Label Service”means a Client service offering to a Hosting Customer, where the VMware Offering is deployed and used in the Client Infrastructure.
3.1. Service Performance. Otava will provide Client with the purchased VMware Offering, where Client’s Sales Order includes the Single Core VCF License – White Label Program, Add-On to Standard VCF Licenses, or the VMware White Label Program services as a line item (collectively and individually, the “VMware White Label Program Services,” which will be deemed a “Service”). Otava will be Client’s primary contact point for all support for the purchased VMware White Label Program Services and Client will submit all such support requests to Otava and not to Broadcom. Client agrees and understands that support requests that are directed to Broadcom or that must be escalated outside of Otava may incur additional charges. Client understands that Client must use support services tokens to receive support for the VMware White Label Program Services. Client agrees and understands that Client remains solely responsible for determining the scope and type of VMware White Label Program Services Client is required to purchase from Otava, including any required Add‑Ons, to meet Client’s operational and compliance requirements and evaluating and understanding the limitations of the VMware White Label Program Services.
3.2. Service Obligations. Client understands that Broadcom imposes certain restrictions on the VMware Offering. To that end, Client agrees and understands that:
(a) Client must register with Broadcom as a Registered tier Broadcom Advantage Program Partner and must maintain such registration (or such other registration as may be required by Broadcom) for the duration of the Services Term. Further, Client will and will reasonably cooperate with Otava to permit Otava to take all steps as necessary to indicate to Broadcom that Client is purchasing VMware licenses from Otava, including, as applicable, by identifying Otava as Client’s Primary VCSP in Broadcom’s portal. Client understands that Client’s failure to make such indication to or maintain such indication with Broadcom for the duration of the Services Term is a material breach of the Agreement.
(b) Client’s offering to its Hosting Customers must meet the following packaging requirements: (i) Client may offer a single or multiple configuration(s) of a Client offering, provided that each Client offering must be a clearly defined, published, and distinctly offered and priced as a cloud offering; (ii) Client must bundle at least one VMware Cloud Foundations (“VCF”) component with at least one of Client’s managed services to create and offer Client’s offering; (iii) Client must use at least one VCF component, and at least one managed service to create and offer Client’s offering; (iv) Client may use any Add-Ons, as an additional software to VCF, to create and offer Client’s offering; and (v) Client’s offering may only be provided as a cloud or managed service offering on a subscription or on-demand consumption model.
(c) Client must license a minimum of 16 cores of VCF per CPU for each host, even if a configuration requires less than 16 cores of VCF per CPU. All physical cores on a host must be licensed even if a lower number of cores is required, provided that the following physical cores do not need to be licensed unless otherwise specified by Broadcom: physical cores that are (i)disabled at a BIOS level; (ii) not visible at the vCenter Server level; and (iii) not running any workloads. Each VMware product may be subject to its own licensing metric, as may be modified by Broadcom from time to time, and all Minimum Commitments are product specific and based on the quantity of the applicable license metrics.
(d) Client will not resell the White Label Service to any other interim users (i.e., additional cloud providers or resellers) and will only use the White Label Service to deliver services to Client’s Hosting Customers.
(e) Use of the VMware White Label Program Services requires installation of the Broadcom usage meter (“Meter”) in Client’s environment. All the components of the VMware White Label Program Services must always be connected to the Meter and the Meter must be connected to Broadcom systems at all times, except as otherwise approved by Broadcom in writing. For the avoidance of doubt, Client understands that use of the VMware White Label Program Services in an air-gapped deployment must be approved by Broadcom in writing in advance. Client will, at its sole cost and expense, provide (i) the Meter with a sufficient level of resources and access rights to permit for the proper functioning of the Meter; and (ii) Otava with a sufficient level of access rights to permit Otava to perform the VMware White Label Program Services, including to install, manage, and monitor the Meter. Client agrees that, for purposes of calculating the VMware White Label Program Services fees, the Meter will serve as the source of truth. Client understands that the Meter collects information about the environment where it is installed and Client hereby authorizes Otava to collect such information and to otherwise collect, process, and report such information and such other demographic, logs, and usage information to Broadcom as Broadcom may require from time to time or as otherwise necessary for Otava to (1) comply with the terms of the VMware Offering or the VMware Terms; or (2) provide support to Client or to coordinate with Broadcom to provide support to Client.
(f) If Otava requires access credentials to Client’s environment or resources (“Otava Designated Credentials”) to perform the VMware White Label Program Services, Client will, at its sole cost and expense, provide Otava with such access credentials and such access credentials will be unique to Otava. Client will either exempt the Otava Designated Credentials (including, without limitation, those assigned to the Meter) from Client’s password reset policy or otherwise coordinate any such password reset with Otava as required by Otava to permit Otava to timely perform the VMware White Label Program Services.
(g) The VMware White Label Program Services are made available solely for Client to offer Client’s hosted service on Client Infrastructure to Client’s Hosting.
(h) Client will use the license keys issued by Otava for the VMware White Label Program Services deployments and will, as needed, reasonably cooperate with Otava to update the license keys within the Client Infrastructure. Unless otherwise expressly authorized by Broadcom, Client will only purchase VMware licenses from Otava.
(i) The VMware Offering is subject to the following mandatory upgrades: (i) Client must be on the latest major software version minus one (N-1) for no more than 12 months for new deployments, and for no more than 24 months for existing deployments, meaning that once a new major VMware Cloud Foundation software version is released, Client must and must require the Hosting Customers’ to move to the latest major software version within 12 months for new deployments and within 24 months for existing deployments; and (ii) Client must deploy consistent software versions for all deployed components of VMware Cloud Foundation. Client is solely responsible for timely implementing such upgrades and understands that failure to implement such upgrades will be a material breach of these Product Terms.
4.1.1. Additional Agreements. By accepting these Product Terms, Client agrees to the VMware Terms, hereby authorizes Otava to accept the VMware Terms on Client’s behalf, agrees that this authorization will remain in effect for the duration of these Product Terms, and authorizes Otava to accept any changes to the VMware Terms on Client’s behalf as may be requested by Broadcom. Otava does not control, endorse, or accept responsibility for the VMware Terms or any changes thereto. As between the Parties, Client is solely responsible for monitoring the VMware Terms for changes. Client will comply with the terms and conditions of these Product Terms as well as the VMware Terms. Client understands that the VMware Terms only apply to the VMware Offering and not to these Product Terms or any other Services delivered by Otava. Unless and solely to the extent expressly set forth in these Product Terms or the Sales Order, Otava will have no liability for and hereby expressly disclaims any responsibility for any component of the VMware Offering or any other VMware software and technology, including any service level obligations of Broadcom. The service level obligations for the VMware Offering are determined by Broadcom and Otava will have no liability therefor. Otava makes no representation, condition, or warranty about the VMware Offering or any other VMware software and technology or any of its components.
4.1.2. Restrictions and Limitations.
(a) Client agrees that Client will not (i) exceed the scope of the uses permitted by these Product Terms or the applicable VMware Terms; (ii) decompile, decrypt, disassemble, reverse engineer, or otherwise attempt to obtain or perceive the source code from which any component of the VMware Offering is compiled or interpreted; (iii) modify, translate, or create derivative works of the VMware Offering or the VMware White Label Program Services or any portion thereof or otherwise obstruct any copyright, trademark, trade secret, government restricted rights, or other proprietary or confidentiality notices or legends that are placed or embedded in the VMware Offering or the VMware White Label Program Services; (iv) interfere with or attempt to interfere with the proper functioning of VMware, the Meter, the VMware White Label Program Services, Otava, any Otava affiliate, or any of Otava’s personnel, including subverting or attempting to subvert embedded security controls; or (v) use the VMware Offering in violation of any applicable laws or regulations.
(b) Client may not disable or otherwise interfere with the operations of the Meter, including, without limitation, by blocking updates thereto. Client understands that disabling the Meter or the Otava Designated Credentials does not terminate the VMware White Label Program Services and does not serve as notice of termination to Otava.
(c) Client agrees that Client will not authorize, assist, or cause any third party, including any of Client’s affiliates or Client’s employees’, agents’, contractors’, subcontractors’, or other users to do any of what is restricted in this Section 4.1.2.Client agrees and understands that the restrictions in this Section 4.1.2 apply to any component of the VMware Offering or the VMware White Label Program Services that is relevant to the restriction.
4.1.3. Auditing. Otava may and may permit Broadcom or another Broadcom business partner to audit Client’s use of the VMware Offering and other Broadcom licenses attributed to the Client Infrastructure. Client will and, as applicable, will ensure that its users, reasonably cooperate with all such auditing activities.
4.2. Client Infrastructure. Client agrees and understands that Client remains solely responsible for (a) understanding Client’s legal and contractual obligations and ensuring that the VMware White Label Program Services meet Client’s needs; (b) managing the Client Infrastructure including, without limitation, the virtual machines at and above the operating system and the data stored therein, including, without limitation, ensuring that the applications are properly deployed and the data is encrypted at the application level; and (c) promptly notifying Otava of any changes in Client’s relevant infrastructure that may impact Otava’s ability to perform the VMware White Label Program Services and, as needed, purchasing additional VMware Offering resources to accommodate Client’s infrastructure changes.
4.3. Client Users. Client acknowledges and agrees that, as between Client and Otava, (a) Client will be responsible for all acts and omissions of Client’s users (including, as applicable, the Hosting Customers); and (b) Client is solely responsible for and will, at Client’s own expense: (i) to the extent required by applicable law, notify applicable users that their personally identifiable information is accessed, collected, stored, transmitted through, or otherwise used by Otava and its vendors (including, without limitation, Broadcom); (ii) notify applicable users that their personally identifiable information may be disclosed to law enforcement or other governmental authorities; (iii) obtain all third party consents and authorizations with respect to the data Client stores within the Client Infrastructure as necessary or reasonably appropriate for Otava to perform the VMware White Label Program Services in accordance with the Agreement and to ensure that Otava can comply with all applicable laws in providing the VMware White Label Program Services; and (iv) respond to and otherwise manage consumer requests, if any, related to the data Client stores within the Client Infrastructure, including without limitation in compliance with applicable law. Client will cause its users (including, as applicable, the Hosting Customers) to comply with the applicable provisions of the Agreement and the VMware Terms and understands that a breach of the VMware Terms by Client or its users will be a material breach of these Product Terms. Clientagrees and understands that Client, and not Otava, is responsible for managing whether Client’s users are authorized to access and use the VMware White Label Program Services and the Client Infrastructure, and Otava will have no obligations relating thereto.
4.4. Disclaimers. THE DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS SECTION 4.4 ARE IN ADDITION TO AND NOT IN LIEU OF ANY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN ANY OTHER TERMS OF THE AGREEMENT. Clientunderstands that Otava did not create or design VMware and, accordingly, Client agrees that Otava will not be liable for any defects, flaws, inefficiencies, malfunctions, or programming errors in the VMware Offering or any other VMware software or technology or any updates or upgrades thereto or thereof. Broadcom may change and remove features and functions in the VMware Offering and (a) Client will not be entitled to any refund, credit, or other compensation as a result thereof, and (b) Otava will not be liable for any such changes or removals or any issues arising therefrom or as a result thereof. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OTAVA, ITS RESELLERS, LICENSORS, AND SUPPLIERS HEREBY EXPRESSLY DISCLAIM ALL LIABILITY FOR ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS, OR IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, CORRESPONDENCE TO THE DESCRIPTION, OR SUITABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DISCLAIMER SET FORTH IN THIS SECTION 4.4 WILL APPLY WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), PRODUCT LIABILITY, COURSE OF DEALING, OR OTHERWISE, AND REGARDLESS OF WHETHER OTAVA, ITS RESELLERS, LICENSORS, OR SUPPLIERS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
5.1. Services Fees. Client agrees and understands that if Client’s usage exceeds the Minimum Commitment or Limitations set forth in the Sales Order (“Contracted Commit Level”), then Client will incur overage charges (“Overage Fee”) for such excess usage. The Overage Fee will be calculated as set forth in the relevant Sales Order, and may be based on hourly run time, another Limitation, or as otherwise specified by Broadcom. Except as otherwise set forth in the relevant Sales Order, the Overage Fee will be charged at the then‑current rates for usage exceeding the Contracted Commit Level. Client agrees and understands that all cores active and running on a host within a cluster with an active workload will be in use and incur charges, except as otherwise set forth in Section 3.2(c) (Service Obligations, minimums) or as otherwise provided by Broadcom. Client understands that, notwithstanding anything to the contrary in any other terms of the Agreement, Client is responsible for paying for all usage recorded by the Meter or as otherwise determined by Broadcom or otherwise to be attributable to Client or the Client Infrastructure. Further, notwithstanding anything to the contrary in any other terms of the Agreement (including, without limitation, the Master Terms, if applicable), the VMware White Label Program Services fees (including, without limitation, the Minimum Commitment for support tokens) are nonrefundable and non-cancellable for any reason. For the avoidance of doubt, the terms in this Section 5.1 are in addition to and not in lieu of the payment obligations set forth in the Master Agreement.
5.2. Other Fees. In addition to the VMware Offering usage fees, and the fees set forth in the Sales Order, Client understands that Otava may charge Client additional fees for: (a) technical support for Client’s on-premise information technology environment, including for troubleshooting the functionality of Client’s on-premise to cloud network connectivity; (b) technical support to the extent the relevant issue was caused by Client or Client’s information technology environment; (c) third-party vendor fees attributable to Client or the Client Infrastructure; and (d) any other services that Otava provides (including, without limitation, additional bandwidth, compliance support, services at other Otava data centers, third-party software licenses, and so forth) and that are not expressly identified as a line item in a Sales Order in effect between the Parties. Unless otherwise set forth in the Sales Order, (i) all such additional fees will be charged to Client at the then current rates for the relevant Services and in the subscription manner generally charged (e.g., per license, based on consumption, and so forth); and (ii) any technical support Services provided by Otava will be provided on a time and materials basis at Otava’s then current technical support rates, provided that Otava will provide Client with written notice prior to undertaking work that will result in any such fees.
6.1. Termination. Notwithstanding anything to the contrary in these Product Terms or any other term in the Agreement, Client’s and its users’ use of the VMware White Label Program Services will terminate on the earlier of the expiration or termination of (a) these Product Terms; (b) an applicable agreement between Otava and Broadcom, in which case Otava will provide prompt written notice to Client as applicable; or (c) the VMware Terms.
6.2. Obligations Upon Termination. Client understands that transition of any VMware Offering is subject to process requirements from, delays by, and may require approval from Broadcom and that Client should plan accordingly. Broadcom may approve or decline license portability at Broadcom’s sole discretion. Client agrees to pay Otava at Otava’s standard support rates to provide transition services. Further, Clientunderstands that Client will remain responsible for VMware Offering fees (including, without limitation, the Minimum Commitment and Overage Fees) as well as the other fees contemplated in Section 5.2(Other Fees) for so long as Otava provides any services hereunder, including, without limitation, transition services. In the event these Product Terms expire or are terminated for any reason, in addition to each Party’s obligations under other parts of the Agreement, Client agrees and understands that unless otherwise expressly provided by Broadcom in writing, (a) Client’s right, if any, to use the VMware Offering will automatically expire; (b) Client will cease all use of the VMware Offering; (c) notwithstanding anything to the contrary in other parts of the Agreement (including any provision that permits the retention of certain Confidential Information), Client will destroy or return to Otava all full and partial copies of the VMware Offering (including backup copies) in any and all media and will delete any such copies that are resident in the memory or hard disks of computers or storage equipment owned or controlled by Client; and (d) Client will verify such deletion to Otava in a statement signed by a Client Vice-President or a duly authorized representative of Client and Client agrees that Otava may provide a copy of such statement to Broadcom.
7.1. Trademarks and No Affiliation. VMware® is a trademark of VMware, Inc., which is owned by Broadcom, Inc. (“Broadcom”). Otava is not affiliated with or sponsored by Broadcom and the VMware White Label Program Services are not authorized, approved, or co-branded by Broadcom. Nothing in these Product Terms grant Client the right to use any of Broadcom’s trademarks or other source indicators. All other trademarks and source indicators are the property of their respective owners.
7.2. Amendments. Client agrees and understands that Broadcom has reserved broad rights to make changes to the VMware offering, including changes to business terms, which changes may impact the VMware White Label Program Services. Accordingly, notwithstanding anything to the contrary in the Master Agreement, Otava may amend or modify these Product Terms upon written notice (or such later date as set forth in such notice) to Client of such amendments or modifications, provided that Otava will use commercially reasonable efforts to provide Client with advance written notice. Notice of any such amendments or modifications to these Product Terms will be provided by email to the Authorized Contact (as such term is defined in the Master Agreement or in Exhibit A, as applicable pursuant to Section 7.3 (Additional Terms for Older MSAs)), Otava’s primary business contact for Client, service ticket, mail, or by posting in the Portal (as such term is defined in the Master Agreement or in Exhibit A, as applicable pursuant to Section7.3). For the avoidance of doubt and notwithstanding anything to the contrary in the Master Agreement, Client agrees and understands that Client may not terminate the VMware White Label Program Services (or the fees therefor) as a result of any changes or modifications made in accordance with this Section 7.2 and that the VMware White Label Program Services fees are non-cancellable and non-refundable for any reason.
7.3. Additional Terms for Older MSAs. Additional Terms for Older MSAs set forth as Exhibit A and incorporated by reference supplement and are made part of these Product Terms only if the Parties entered into a Master Agreement on or before July 1, 2022 or the version of the Master Agreement in effect between the Parties as of the Product Terms’ Effective Date is a Master Agreement prior to version 2022-2.0.
7.4. Survival. The provisions of Sections 1 (General), 4.1 (License Terms), 4.3 (Client Users), 4.4 (Disclaimer), 5 (Fees), 6.2 (Obligations Upon Termination), and 7 (General Terms) will survive the termination of these Product Terms.
The terms in this Additional Terms for Older MSAs Exhibit (“Exhibit”) supplement are made part of the VMware White Label Services – Product Terms of Use to which this Exhibit is attached only if the Parties entered into a Master Agreement (“MSA“) on or before July 1, 2022 or the version of the MSA in effect between the Parties as of the Product Terms’ Effective Date is an MSA prior to version 2022-2.0.Capitalized terms used in but not otherwise defined in this Exhibit will have the meaning attributed to such terms in the Product Terms.
2.1. “Addenda” means collectively all executed Sales Orders and all applicable addenda or service specific terms linked to or refenced in the Agreement, a Sales Order, or subsequently agreed to by the Parties (each an “Addendum”).
2.2. “Administrator Data” means the information provided to Otava or otherwise received by Otava during sign up, purchase, or administration of the Services for Client. Administrator Data does not include Client Data, Feedback, or Usage Data.
2.3. “Authorized Contact” has the meaning attributed to such term in the MSA, and if not defined, then has the meaning set forth in Section 3.1 (Contacts).
2.4. “Billing Start Date” has the meaning attributed to such term in the MSA, and if not defined, then means the earlier of (a) the date Otava makes the applicable Service(s) available to Client for Client’s use, or (b) 30 days after executing a Sales Order.
2.5. “Client Data” means the data, information, and materials that Client stores, transmits through, or uploads into the application layer of the Services.
2.6. “Client Personnel” has the meaning attributed to such term in the MSA, and if not defined, then means, collectively and individually, employees, agents, contractors, subcontractors, service providers, and Authorized Contacts. Client Personnel does not include Otava.
2.7. “Limitations” means the number of hosts, license types, memory, number of licenses, number of users, purpose, storage, or other usage limits, if any, set forth in an applicable Sales Order.
2.8. “Minimum Commitment” has the meaning attributed to such term in the MSA, and if not defined, then means Client’s commitment to pay a minimum charge for the Services, regardless of actual usage or other factors.
2.9. “Portal” means the certain web‑based portal that Otava may make available to Client to access and manage the Services, including adding user roles, purchasing additional Services, and submitting service tickets.
2.10. “Support Portal” means https://support.otava.com, or such other url for support issues as Otava may provide.
2.11. “Third‑Party EULA” has the meaning attributed to such term in the MSA, and if not defined, then has the meaning set forth in Section 4.3 (Third‑Party Products).
2.12. “Third‑Party Product” has the meaning attributed to such term in the MSA, and if not defined, then means any infrastructure, hardware, or software, where such infrastructure, hardware, or software is owned or licensed by a Third‑Party Vendor, such as Broadcom, Inc. or Trend Micro Incorporated.
2.13. “Third-Party Vendor” means a third-party product or service provider that is not identified as a Party to the MSA.
3.1. Contacts. Client will use the Portal to designate, change, and otherwise manage various access roles for Client and the Client Personnel (each an “Authorized Contact”) in connection with the Services. Client agrees that Otava will be permitted to act and rely on the direction and instructions of the Authorized Contact, unless and until Client revokes the relevant individual’s access role. If Client wishes to add or remove an Authorized Contact, or modify an Authorized Contact’s information or authority, Client must do so through the Portal.
3.2. Cooperation. Client understands and acknowledges that Otava cannot perform the Services without the assistance and cooperation of Client Personnel. Accordingly, Client will: (a) cooperate, in good faith, with Otava with respect to activities necessary or reasonably appropriate for Otava to provide the Services including, without limitation, cooperating with Otava to schedule maintenance required for major system upgrades as applicable; (b) devote such time as needed to timely review any information provided and timely respond to and advise Otava with respect to activities as they relate to the Agreement, including, without limitation, as applicable in light of the actual Services, timely authorizing operating system upgrades; (c) provide to Otava, at no charge, reasonable access to the Client Personnel to reasonably assist Otava with respect to the activities as they relate to the Services; and (d)reasonably facilitate and hereby authorize the communication between Otava and Client Personnel, as necessary or reasonably appropriate for Otava to deliver the Services. Client understands that for Otava to meet certain audit obligations, maintain compliance certifications, or address software and systems obsolescence, Otava must perform certain patching, updates, and upgrades to systems and technologies managed by Otava, some of which may be included in or otherwise impact Client’s Services. Accordingly, notwithstanding anything to the contrary in this Section 3.2 or any other term in the Agreement, Otava reserves the right to perform any and all patching, updates, and upgrades to the systems and technologies managed by Otava, as determined by Otava in its sole discretion and without further approval from or liability to Client, provided that Otava will provide Client with prompt (as reasonable under the circumstances) written notice (which notice may be provided by email, a service ticket, or by posting in the Portal) of such patches, updates, and upgrades.
3.3. Access to Client Systems. Client agrees and understands that to perform the Services, Client may need to make available to Otava access to Client’sinformation technology resources, data systems, virtual machines, third-party software and hardware, and related resources from the Client-side environment (collectively, the “Client Systems”). As between Client and Otava, Client will, at its expense, take the necessary steps (including, without limitation, obtaining all authorizations, consents, licenses, and sublicenses) to make available to Otava the Client Systems that Otava may require or reasonably request to provide the Services. As between Client and Otava, Client is solely responsible for the Client Systems’ costs and for obtaining, installing, configuring, and maintaining appropriate equipment and ancillary services needed to connect to, access, and otherwise use the Services, including, without limitation, communication lines, network connectivity, hardware, software licenses, web browsers, and power.
3.4. Configuration, Management, and Monitoring. Otava may provide Client with certain deployment, management, and support Services as described in one or more Sales Orders, provided, however, Client agrees and understands that Client remains solely responsible for (a) understanding Client’slegal and contractual obligations and ensuring that the Services meet Client’s needs; (b) evaluating and understanding the limitations of the Services; (c) determining the scope and type of Services Client must purchase from Otava to meet Client’soperational and compliance requirements, including, without limitation, need for high availability, auditing obligations under applicable privacy and security laws, and retention duration; (d) properly configuring, managing, and monitoring the Client-sidecomponents of the Services, including, for example, periodically testing backups if Client’s Services include backup services; (e) properly configuring, managing, updating, and upgrading the applications and related services hosted by Client in the Servicesenvironment (including, without limitation, as applicable, using the then-current or supported versions of the programming languages for applications, patching, using genuine and licensed software, and upgrading as needed before end of life is reached for the relevant Client-side system component), and properly administering the Client-side environment to ensure that Client’scompliance objectives are achieved and legal obligations are met; (f) timely reviewing and assessing any alerts, logs files, and reports in accordance with Client’s policies and otherwise properly monitoring the Services and the activities of the Client Personnel and other end users on the Services; and (g) training the Client Personnel on the scope of Otava’s Services and Client’s obligations. Client understands that Client is solely responsible for all actions and activities taken or not taken, as the case may be, under access credentials assigned to Client and the Client Personnel in connection with the Services. Further, Clientagrees and understands that Client, and not Otava, is responsible for managing whether the Client Personnel are authorized to access or use the Services and Otava will have no obligations relating thereto.
3.5. Consents and Authorizations. As between the Parties, Client is solely responsible for and will, at Client’s own expense: (a) to the extent required by applicable law, notify applicable end users that their personally identifiable information is accessed, collected, stored, transmitted through, or otherwise used by Otava; (b) respond to and otherwise manage consumer requests, if any, related to the Client Data as required by applicable law; and (c) obtain all third‑party consents and authorizations with respect to the Client Data as may be necessary or reasonably appropriate for Otava to perform the Services in accordance with the Agreement and to ensure that Otava can comply with all applicable laws in providing the Services. Otava will, at Client’s expense, (i) reasonably assist Client, as needed, to cooperate with and respond to requests from auditors, insurance carriers, regulators, consumers, customers, and others to provide information related to Otava’s processing of the Client Data and use of the Services; and (ii) assist with, respond to, or otherwise support legal holds (such as those that Otava receives from a third party because Otava stores the Client Data), discovery requests, ediscovery, affidavits, subpoenas, and other litigation or legal proceeding support services related to the Administrator Data, Client Data, or the Services (this Section 3.5(i) and (ii), collectively as the “Compliance Support Services”); provided that the Parties agree that, Otava may, in its reasonable discretion and to the extent legally permissible, decline to provide the Compliance Support Services or otherwise limit the scope of such Compliance Support Services. Otava will charge and Client will pay for the Compliance Support Services at Otava’s and, if applicable, Otava’s vendors’ (including, without limitation, attorneys and digital forensics vendors), then‑current time and materials rates, provided that Otava will provide Clientwith written notice in advance of charging such fees. Otava may, at its sole discretion, require a deposit or other advance payment before providing the Compliance Support Services.
4.1. Administrator Data. As between Client and Otava, Client owns the right, title, and interest in and to the Administrator Data, except for the limited rights granted in the Agreement and subject to applicable third‑party licensor rights in the Administrator Data. Client hereby grants Otava a fully paid, limited, nonexclusive, royalty-free right and license (a) during the term of the Agreement and for the duration of any transition period, to access, adapt, aggregate, copy, disclose, display, distribute, modify, process, publish, reformat, store, and use the Administrator Data for the purpose of administering and performing the Services and to otherwise fulfill Otava’s obligations under the Agreement; and (b) on a perpetual basis, to access, adapt, aggregate, copy, display, modify, process, reformat, store, use, and create derivative works of Administrator Data, metrics, statistics, and other analytics and to aggregate, copy, disclose, distribute, publish, and use such information for Otava’s internal business purposes, legal compliance, and record keeping, including, without limitation, developing anonymized benchmarks and metrics, provided that Otava will use commercially reasonable efforts to ensure that use of Administrator Data does not individually identify Client or any Client employees.
4.2. Client Data. As between Client and Otava, Client owns the right, title, and interest in and to the Client Data, except for the limited rights granted in the Agreement. Client hereby grants Otava a fully paid, limited, nonexclusive, royalty-free right and license during the term of the Agreement and for the duration of any transition period, to copy, display, host, process, store, and transmit the Client Data for the purpose of delivering the Services, including, without limitation, Client’s and Client Personnel’s access and use of the Third‑Party Products, and to fulfill Otava’s obligations under the Agreement.
4.3. Third-Party Products. Otava may make certain Third-Party Products available to Client in connection with or to use directly with the Services (e.g., VMware licenses) or use of the Services may require a license to and use of Third-Party Products (e.g., Veeam backup software). Client agrees and understands that Client’s access to and use of the Third‑Party Products is subject to the terms and conditions of an end user license agreement, cloud services agreement, or such other document issued by the applicable Third-Party Vendor (“Third-Party EULA”). Otava does not (a) endorse the Third-Party Products; or (b) control or accept responsibility for the Third‑Party Products, except to the extent Otava is designated as being either “Responsible” or “Accountable” in an applicable RACI Matrix for the relevant Otava Services. Any and all agreements, services, and transactions between Client and such Third-Party Vendor in connection with the Third-Party Products, including but not limited to such Third-Party Vendor’s privacy policies, service level terms, data use terms, and any other terms, conditions, representations, and warranties associated with such agreements, services, or transactions, are solely between Client and such Third-Party Vendor. Client understands that Otava did not design the Third‑Party Products and, accordingly, Client agrees that Otava will not be liable for any defects, flaws, inefficiencies, malfunctions, or programming errors in any of the Third‑Party Products. To the extent available to Otava and within Otava’s control, Client will have the right to review the Third-Party EULA for any Third-Party Products upon Client’s request and prior to executing the applicable Sales Order. If the Agreement or an applicable Sales Order is terminated for any reason, Otavawill have no responsibility or liability to Client for the cost of any such Third-Party Products. Unless otherwise provided in the Third-Party EULA or the Product Terms of Use to which this Exhibit is attached, the rights granted to Client in the Third‑Party EULA are solely for Client’s use in connection with the Services and will terminate on the earlier of expiration or termination of (i) the Agreement; (ii) an applicable agreement between Otava and the licensor of the Third‑Party Products, as applicable; or (iii) the Third-Party EULA. Without limiting the generality of the immediately preceding sentence, Otava may, in its sole discretion and with 30 days’ advance written notice to Client (which notice may be provided by email, a service ticket, or by posting in the Portal), modify or discontinue the availability of any Third-Party Products provided with the Services if the licensor or Third-Party Vendor changes its terms with Otava. By using the Third‑Party Products, Client grants Otava permission to allow the licensors of such Third-Party Products to access and use the Administrator Data and Client Data as required or reasonably appropriate for the purpose of delivering the Third‑Party Products to or for Client and the Client Personnel, as applicable, in connection with the Services, and to otherwise enable use of the features and functions of such Third-Party Products. Without limiting Section 3.5 (Consents and Authorizations), Client will, at its own expense, obtain all consents and permissions from its employees and other relevant end users as necessary and appropriate to grant the rights granted in this Section 4.3.
4.4. Otava Proprietary Rights. Client acknowledges and agrees that Client is engaging Otava due to Otava’s expertise, know how, knowledge, materials, special skills, and each of its component parts (including, without limitation, algorithms, analytics, audio visual works, charts, compilations, coherence and methods of operation of systems, conceptions, configurations, data, data center, data center architecture, database structuring techniques, databases, designs, developments, diagrams, formatting, forms, general skills, graphs, ideas, inventions, know how, libraries (code or otherwise), lists, logic, ‘look and feel’, materials, methodologies, metrics, models, network architecture, policies, Portal, procedures, records, reports, schematics, software and its object and source code, system designs, technical documentation, techniques, templates, text, tools, user interfaces, and utilities, and other works of authorship, or any part thereof and any arrangement, coordination, combination, and selection thereof, and any improvement thereto and modifications thereof), and proprietary information, and all intellectual property rights therein (collectively, the “Otava Materials”) that Otavadeveloped or acquired prior to the Agreement or during the Agreement but in connection with performing services for another client. As between Client and Otava, Otava will retain and Client acknowledges that Otava hereby retains all interest, right, and title in and to the Otava Materials and nothing contained in the Agreement will be construed as the relinquishment on the part of Otava of any of Otava’s ownership interest in the Otava Materials. Further, for the avoidance of doubt, Otava may develop certain improvements and modifications to the Otava Materials and other general skills as a result of working with Client. Otava will retain all interest, right, and title of every nature in and to such improvements, modifications, and general skills throughout the universe, whether such rights are now known or hereafter devised, with the right to use the improvements, modifications, and any applicable general skills in perpetuity in any manner Otava desires, in its sole discretion, without any payment to Client or any obligation of accounting.
4.5. Trademarks and Copyrights. Client acknowledges and agrees that all content on the Third-Party Products and the Otava Materials as well as certain content on the Administrator Data (including with respect to each of the Third‑Party Products, Otava Materials, and Administrator Data, as applicable and without limitation, audio, graphics, graphs, images, sounds, text, user interfaces, and visual interfaces as well as, without limitation, the arrangement, coordination, design, expression, ‘look and feel’, structure, and selection thereof) is the exclusive property of and owned by Otava, the Third‑Party Products vendors, the Administrator Data vendors, or its and their licensors and are protected by copyright, trademark, and other intellectual property rights and unfair competition laws. Client will not and will not permit any of the Client Personnel to modify, obscure, or delete (including through selectively copying or printing material) any copyright, trademark, trade secret, government restricted rights, or other proprietary or confidentiality notices or legends that are placed or embedded in the Third‑Party Products, Otava Materials, or Administrator Data. Nothing on or in the Third‑Party Products, Otava Materials, or Administrator Data will be construed as granting, by implication, estoppel, or otherwise, any license or right to use any logo, service mark, or trademark displayed thereon or therein, without the owner’s prior written permission, except as otherwise described in the Product Terms of Use to which this Exhibit is attached or, with respect to the Third-Party Products, in a license between Client and such Third-Party Products vendor (including any Third‑Party EULA).
4.6. Usage Data and Operational Information.
Client agrees and understands that certain of the systems and software used to deliver the Services or the Third-Party Products or otherwise used in connection with the Services or the Third-Party Products may, from time to time, collect and automatically report back information related to usage of the Services, the Third‑Party Products, and related information technology systems (“Usage Data”). Usage Data may include IP addresses, but does not include Client Data. Such Usage Data may be reported to Otava as well as the relevant information technology or software system Third-Party Vendor. Usage Data may be used by Otavaand the relevant information technology and software system vendors for any legally permitted purposes, including, without limitation, helping diagnose and resolve technical and performance issues with Otava’s and such vendor’s systems, improving the Services, validating license keys, monitoring for compliance with Limitations (e.g., amount of RAM on server, number of virtual machines, and the like), and developing metrics and analytic algorithms. Client agrees and understands that Otava uses all data collected in connection with its business and operations for the operation and management of its business including, without limitation, (a) creation of operational statistics; (b) creation and inclusion in financial reporting of aggregate statistics regarding services performed; (c) creation and inclusion in marketing materials of aggregate statistics highlighting the Services; and (d)advancing and improving existing products and services, creating new and enhanced products and services, and development and publication of market and industry intelligence and expertise; all of which and any improvements thereto and whether in tangible or intangible form, will be and remain the intellectual property of Otava and Otava will own all intellectual property rights therein.
4.7. Feedback. Client agrees that submission of any corrections to content or documents, ideas, product or service improvements or modifications, or suggestions (collectively, the “Feedback”) to Otava through its feedback form, meetings, suggestion form, or similar means, is at Client’s own risk and that Otava has no obligations (including, without limitation, obligations of use) with respect to such Feedback. Client hereby grants to Otava a fully paid, irrevocable, royalty-free, perpetual, sub‑licensable, transferable, worldwide, and nonexclusive right and license to adapt, copy, disclose, display, distribute, modify, perform, reformat, use, create derivative works of, and otherwise exploit any and all Feedback for any legally permitted purposes.
4.8. Restrictions. Otava and its suppliers retain all interest, rights, and title in and to the Portal and Otava Materials (collectively, the “Licensed Materials”) and all rights to the Licensed Materials not expressly granted to Client in the Agreement are reserved. The Third‑Party Vendors retain all interest, right, and title in and to their respective Third‑Party Products. Any unauthorized use of the Licensed Materials, the Third‑Party Products, or any component thereof is a material breach of the Agreement. Client will not: (a) copy or reproduce the Licensed Materials or the Third‑Party Products in whole or in part, access or use the Licensed Materials in any way other than as expressly permitted in the Agreement, or, if applicable, access or use the Third‑Party Products in any way other than as expressly permitted in the Agreement or the Third‑Party EULA; (b) modify, translate, or create derivative works of the Licensed Materials or Third‑Party Products or any portion thereof; (c) decompile, decrypt, disassemble, reverse engineer, or otherwise attempt to obtain or perceive the source code from which any component of any software made available to Client hereunder (including, without limitation, the Portal and the Third‑Party Products) is compiled or interpreted, and Client hereby acknowledges that nothing in the Agreement will be construed to grant Client any right to obtain or use such source code; (d) assign (except together with Client’s business if so permitted by the assignment clause in the MSA), distribute, grant a security interest in, lease, loan, rent, sell, share, sublicense, timeshare, use for service bureau purposes, or otherwise transfer (except together with Client’sbusiness if so permitted by the assignment clause in the MSA) the Licensed Materials or Third‑Party Products; (e) divert, export, re-export, or transfer any part of the Licensed Materials, Services, or Third‑Party Products to any country, individual, company, or other entity that is embargoed by the U.S., in violation of any U.S. export law or governmental regulation, or otherwise identified on a list of debarred, prohibited, sanctioned, or denied parties; (f) unless expressly authorized by Otava or an applicable Third‑Party Vendor in writing, authorize or undertake a penetration test, vulnerability scan, social engineering test, or any other similar activity against the Services, Otava, any of Otava’s Third-Party Vendors, or any of Otava’s employees, agents, or subcontractors; (g)interfere with or attempt to interfere with the proper functioning of the Services, Third-Party Products, Otava, any of Otava’s Third-Party Vendors, or any Otava agent, contractor, or subcontractor, including subverting or attempting to subvert embedded security controls, the reporting mechanisms for reporting and monitoring Limitations, or the mechanisms to validate license keys; or (h)authorize, assist, or cause any third party, including any of the Client Personnel, to do any of the foregoing. Client agrees and understands that the restrictions in this Section 4.8 apply to (i) any component of the Licensed Materials that is relevant to the restriction; and (ii) to the Third‑Party Products to the extent such restriction is relevant, unless expressly permitted by the Third-Party EULA or some other arrangement between Client and the owner of such Third‑Party Product.
4.9. Audits. Otava may audit Client’s use of the Services and may permit relevant Third‑Party Vendors to audit Client’s use of the Third‑Party Products and the related Services in connection with Client’s use of such Third‑Party Products. Client will and, as applicable, will ensure that the Client Personnel, reasonably cooperate with all such auditing activities, including, without limitation, permitting access to and copying of relevant records. Such audit will be conducted during Client’s regular business hours, will not unreasonably interfere with Client’s business activities, and may be conducted at Client’s offices or electronically. Otava reserves the right to require the installation of auditing software to enable automated billing and consumption verification on the Services or any part thereof.
4.10. Suspension for Security. Otava will have the right, in addition to its other rights or remedies, to suspend Client’s and the Client Personnel’s access to the Licensed Materials, Services, and the Third‑Party Products, without liability to Client, if (a) Otava determines, in its reasonable discretion, that such suspension is necessary or reasonably appropriate to protect the security or integrity of the Licensed Materials, Services, or the Third‑Party Products or the security of other Otava clients; or (b) Otava does not receive the Usage Data as required, or Client otherwise interferes with the reporting mechanisms for reporting and monitoring Limitations or the mechanisms to validate license keys for the Third‑Party Products and other software. Such access may remain suspended until Otava reasonably determines that the threat has passed or that Client has taken the appropriate steps, as reasonably determined by Otava, to remedy the identified threat or interference, as applicable. Further, Otava may, without liability to Client, suspend the access credentials of the Client Personnel who violate the Agreement and may terminate the access credentials of Client Personnel who repeatedly violate the Agreement, provided that Otava will provide Client with prompt written notice (which notice may be provided by email, a service ticket, or by posting in the Portal) if Otava suspends or terminates the access credentials.
If an applicable Third‑Party Vendor increases the price paid by Otava for a Third‑Party Product, Otava reserves the right to pass-through the price increase for such Third‑Party Product to Client upon 30 days’ advance written notice to Client.
The provisions of 3.5 (Consents and Authorizations, limited to Compliance Support Services), 4.3(Third‑Party Products), 4.4(Otava Proprietary Rights),4.6(Usage Data and Operational Information), 4.7(Feedback), and 6(General Terms) will survive the termination of these Product Terms until any obligations arising prior to such termination have been satisfied in accordance with the applicable terms.
