MASTER SUBSCRIPTION AND SERVICES AGREEMENT
PLEASE READ THIS MASTER SUBSCRIPTION AND SERVICES AGREEMENT BEFORE PURCHASING OR USING THE PRODUCTS OR
SERVICES. BY USING OR PURCHASING THE PRODUCTS OR SERVICES, CUSTOMER SIGNIFIES ITS ASSENT TO THIS AGREEMENT. IF
YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS
AGREEMENT ON BEHALF OF THAT ENTITY. IF CUSTOMER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN IT MUST NOT
PURCHASE OR USE THE PRODUCTS OR SERVICES.
This Master Subscription and Services Agreement is between Nginx Software, Inc. ("Nginx"), with its principal place of business at 600 Montgomery
Street, 43rd Floor, San Francisco, CA 94111 and the purchaser or user of Nginx's Products or Services that accepts the terms of this Agreement
("Customer"). The effective date of this Agreement ("Effective Date") is the date that Customer uses Nginx's Products or Services or agrees to these
terms by entering into an Order Form. Capitalized terms have the meanings set forth in the sections in which they are used and in Section 12 below.
1. License Grant and Restrictions.
1.1 Subject to the terms and conditions of this Agreement,
Nginx grants to Customer, during the term of the applicable
Subscription designated on the applicable Order Form, a limited,
non-exclusive and nontransferable license to use the Documentation
and Products, in object code form, solely for the purpose of
integrating the Products with Customer's applications, testing the
Products with Customer's applications and providing End Users with
the right to access the Web Services.
1.2 Except as otherwise expressly permitted in this Agreement,
Customer shall not itself, or through any parent, subsidiary, affiliate,
agent or other third party: (a) sell, lease, license, distribute,
sublicense or otherwise transfer in whole or in part, any Products or
the Documentation to a third party; (b) decompile, disassemble,
translate, reverse engineer or otherwise attempt to derive source
code from the Products; (c) allow access or permit use of the
Products by any third party except authorized third-party contractors
solely to provide services to Customer, provided that Customer shall
be liable for all acts and omissions of such authorized third-party
contractors; (d) circumvent the license keys embedded within the
Products; (e) modify or create derivative works based upon the
Products or Documentation; (f) disclose the results of any benchmark
test of the Products to any third party; or (g) change any proprietary
rights notices which appear in the Products or Documentation.
1.3 Copies. Customer may make up to two copies of the
Products for backup and/or archival purposes.
1.4 Open Source Products. The Products may include
individual open source Products components, each of which has its
own copyright and its own applicable license conditions. The open
source Products are licensed to Customer under the terms of the
applicable open source license conditions and/or copyright notices
that can be found in the licenses file, the Documentation or other
materials accompanying the Products.
2. Professional Services. Nginx will provide Professional
Services for Customer as set forth in the applicable Order Form.
Customer shall reimburse Nginx for all travel and living expenses
incurred by Nginx personnel in performing the Professional Services.
3. Fees and Payment. Customer agrees to pay Nginx the
Fees as stated on the applicable Order Form. In addition, Customer
shall pay all sales, use, value added, withholding, excise taxes and
other tax, duty, custom and similar fees levied upon the delivery or
use of the Products described in this Agreement. If any applicable
law requires Customer to withhold amounts from any payments to
Nginx under this Agreement, (a) Customer shall effect such
withholding, remit such amounts to the appropriate taxing authorities
and promptly furnish Nginx with tax receipts evidencing the payments
of such amounts and (b) the sum payable by Customer upon which
the deduction or withholding is based shall be increased to the extent
necessary to ensure that, after such deduction or withholding, Nginx
receives and retains, free from liability for such deduction or
withholding, a net amount equal to the amount Nginx would have
received and retained absent the required deduction or withholding.
Unless set forth in the applicable Order Form, Fees shall be: (i)
invoiced in full upon the effective date of the applicable Order Form,
(ii) paid in US dollars, and (iii) paid within thirty (30) days of the date
of the invoice. Payments are nonrefundable and shall be made
without right of set-off or chargeback. If Customer does not pay the
invoices when due, Nginx may charge interest at one percent (1%)
per month on the unpaid balance. If Customer fails to pay Fees in
accordance with this Section, Nginx may suspend fulfilling its
obligations under this Agreement until such payment is received by
Nginx.
4. Support Services. Nginx shall provide Support Services
for the Products as described in Exhibit A during the period set forth
in the applicable Order Form.
5. Ownership.
5.1 Products. Notwithstanding anything to the contrary, except
for the limited license rights expressly provided in this Agreement,
Nginx has and will retain all rights, title and interest in and to the
Products (including, without limitation, all patent, copyright,
trademark, trade secret and other intellectual property rights) and all
copies, modifications and derivative works. Customer acknowledges
that it is obtaining only a limited license right to the Products and that
irrespective of any use of the words "purchase," "sale," or like terms
hereunder no ownership rights are being conveyed to Customer
under this Agreement or otherwise.
5.2 Deliverables. Customer acknowledges that in the course
of performing any services, Nginx may create software or other
works of authorship delivered to Customer pursuant to or in
connection with the performance of Professional Services (a
"Deliverable"). Subject to Customer's rights in the Customer
Confidential Information, Nginx shall own all right, title and interest in
such Deliverables, including all intellectual property rights therein and
thereto. Nginx grants to Customer a nonexclusive, non-transferable,
royalty-free license to use any Deliverables for Customer's internal
purposes.
5.3 Other Materials. Customer agrees and acknowledges that
Customer is not obtaining any intellectual property right in or to any
materials provided by Nginx to Customer in connection with the
provision to Customer of services ("Materials"), other than the rights
of use specifically granted in this Agreement. Customer will be
entitled to keep and use all Materials provided by Nginx to Customer,
but without any other license to exercise any of the intellectual
property rights therein, all of which are hereby strictly reserved to
Nginx. In particular and without limitation, Materials may not be,
modified, re-distributed, disclosed to third parties, lent, hired out,
made available to the public, sold, offered for sale, shared, or
transferred in any other way. All Nginx trademarks, trade names,
logos and notices present on the Materials will be preserved and not
defaced, modified or obliterated.
6. Warranties.
6.1 Products. Nginx warrants to Customer only that, for a
period of thirty (30) days following the date the Products is initially
licensed by Customer ("Warranty Period"), the Products shall
substantially conform to the description contained in the applicable
Documentation. If during the Warranty Period the Products do not
substantially conform to the description contained in the applicable
Documentation, Nginx shall perform the Support Services described
in Exhibit A.
6.2 Support Services and Professional Services. Nginx
warrants to Customer only that the Support Services and
Professional Services shall be performed in a workmanlike manner
and shall conform to standards of the industry. If the Support
Services or Professional Services are not performed as set forth
above, Nginx shall re-perform the applicable Support Services or
Professional Services.
6.3 The remedies in Section 6.1 and 6.2 are Customer's sole
and exclusive remedies for breach of warranty and Nginx's sole and
exclusive liability for breach of warranty.
6.4 The warranties in Sections 6.1 and 6.2 are made to and for
the benefit of Customer only. The warranties shall apply only if: (i)
the Products have been properly installed and used at all times in
accordance with the instructions in the applicable Documentation; (ii)
no modification, alteration or addition has been made to the
Products; and (iii) Nginx receives written notification of the breach, in
the case of the warranty in Section 6.1, within thirty (30) days
following the date the Products were initially licensed by Customer,
and in the case of the warranty in Section 6.2, within ten (10) days
following the performance of the relevant Support Services or
Professional Services.
6.5 Disclaimer. EXCEPT FOR THE WARRANTIES IN THIS
SECTION 6, THE NGINX PRODUCTS, SUPPORT SERVICES,
PROFESSIONAL SERVICES, DELIVERABLES, DOCUMENTATION
AND MATERIALS ARE PROVIDED "AS-IS" AND NGINX AND ITS
SUPPLIERS MAKE NO WARRANTIES OF ANY KIND, EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, INTEGRATION, NON-INFRINGEMENT,
TITLE, PERFORMANCE, AND ACCURACY AND ANY IMPLIED
WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING,
COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMER,
THE NGINX PRODUCTS, SUPPORT SERVICES, PROFESSIONAL
SERVICES, DELIVERABLES, DOCUMENTATION AND
MATERIALS ARE NOT DESIGNED, MANUFACTURED OR
INTENDED FOR USE IN THE PLANNING, CONSTRUCTION,
MAINTENANCE, CONTROL, OR DIRECT OPERATION OF
NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, CONTROL OR
COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, OR DIRECT
LIFE SUPPORT SYSTEMS. CUSTOMER ACKNOWLEDGES THAT
NGINX HAS NO RESPONSIBILITY FOR ANY HARDWARE ON
WHICH CUSTOMER INSTALLS OR EXECUTES THE PRODUCTS.
7. Indemnification. Subject to the terms of this Agreement,
Nginx shall (i) defend, or at its option settle, a claim brought against
Customer by an unaffiliated third party alleging that the Products or
Deliverables infringe such party's patent enforceable in any country
that is a signatory to the Patent Cooperation Treaty or infringes a
copyright or trademark in any country that is a signatory of the Berne
Convention for the Protection of Literary and Artistic Works, or makes
intentional, unlawful use of such party's trade secret (each, an
"Infringement Claim") and (ii) pay any settlement of such
Infringement Claim consented to by Nginx or pay any damages
finally awarded to such third party by a court of competent jurisdiction
as the result of such Infringement Claim; provided that Customer:
(a) notifies Nginx promptly in writing of such Infringement Claim,
(b) grants Nginx sole control over the defense and settlement of such
Infringement Claim, and (c) reasonably cooperates in response to a
Nginx request for assistance. Nginx will have the exclusive right to
defend any such Infringement Claim and make settlements at its own
discretion, and Customer may not settle or compromise such
Infringement Claim, except with prior written consent of Nginx. If
Customer's use of any Products or Deliverables is enjoined, Nginx
shall, at its option and expense, (A) procure for Customer the right to
make continued use of the Products and Deliverables, (B) replace or
modify such so that they become non-infringing, or (C) request return
of the Products and Deliverables, upon receipt of such Products and
Deliverables, the corresponding licenses are terminated and Nginx
shall refund the prepaid but unused Fees paid for the infringing
Products and Deliverables. Nginx shall have no liability if the alleged
infringement is based on: (1) combination with non-Nginx products,
data or business processes, (2) use for a purpose or in a manner for
which the Products or Deliverables were not designed, (3) use of any
older release of the Products or Deliverables when use of a newer
Nginx revision would have avoided the infringement, (4) any
modification or alteration of the Products or Deliverables, (5) any
intellectual property right owned or licensed by Customer, excluding
the Products or Deliverables, (6) Nginx's compliance with any
materials, designs, specifications or instructions provided by
Customer, (7) Customer using the Products or Deliverables after
Nginx notifies Customer to discontinue using due to such a claim, or
(8) open source software. THIS SECTION STATES CUSTOMER'S
SOLE AND EXCLUSIVE REMEDY AND NGINX'S ENTIRE
LIABILITY FOR INFRINGEMENT CLAIMS.
8. Limitation of Liability. IN NO EVENT WILL NGINX OR
ITS SUPPLIERS BE LIABLE UNDER THIS AGREEMENT FOR ANY
INDIRECT, RELIANCE, PUNITIVE, CONSEQUENTIAL, SPECIAL,
EXEMPLARY, OR INCIDENTAL DAMAGES OF ANY KIND AND
HOWEVER CAUSED. IN NO EVENT WILL NGINX'S CUMULATIVE
LIABILITY FOR ANY CLAIM ARISING IN CONNECTION WITH THIS
AGREEMENT EXCEED THE AMOUNT PAID TO NGINX BY
CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE
(12) MONTHS PRECEDING THE DATE OF THE CLAIM. IN NO
EVENT WILL NGINX'S SUPPLIERS HAVE ANY LIABILITY FOR
ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT.
THE PROVISIONS OF THIS SECTION 8 ALLOCATE RISKS
UNDER THIS AGREEMENT BETWEEN CUSTOMER, NGINX AND
NGINX'S SUPPLIERS. THE FOREGOING LIMITATIONS,
EXCLUSIONS AND DISCLAIMERS APPLY TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY
REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
9. Term and Termination.
9.1 This Agreement shall commence on the Effective Date and
continue until terminated as set forth in this Agreement ("Term").
Either party may terminate this Agreement in the event that the other
party breaches this Agreement and does not cure such breach within
thirty (30) days of written notice. Each Subscription shall begin on
the date Customer purchases the Subscription by entering into an
applicable Order Form and shall continue during the time Customer
has paid the initial Subscription Fees ("Initial Term"), unless
terminated earlier in accordance with this Section 9.1. Subscriptions
shall automatically renew for additional terms of one (1) year each
(each a "Renewal Term") unless either party gives the other party
written notice of its intent not to renew at least thirty (30) days prior to
the end of the then-current term. The applicable licenses granted in
Section 1 of this Agreement automatically terminate upon the
termination of the underlying Subscription.
9.2 Sections 5, 6.5, 8, 9, 10, 11 and 12 shall survive the
expiration or termination of this Agreement.
9.3 During the Term and for one (1) year following termination
or expiration (but no more than once in a calendar year), Nginx and
its auditors may inspect Customer's records relating to its
reproduction and use of the Products for the purposes of verifying
Customer's compliance with this Agreement. Customer shall
cooperate fully with Nginx and its auditors in conducting audits and
provide reasonable assistance. If an underpayment is discovered,
Customer shall promptly pay such amount. If an underpayment of
more than ten percent (10%) for the period audited is discovered,
Customer shall promptly reimburse Nginx for the cost of the audit.
10. Confidentiality. For a period of five (5) years from the date
of disclosure of the applicable Confidential Information, the Receiving
Party shall (i) hold the Confidential Information of the Disclosing
Party in trust and confidence and avoid the disclosure or release of
such Confidential Information 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 Disclosing Party for any purpose
whatsoever except as expressly contemplated under this Agreement;
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. The Receiving Party shall disclose the Confidential
Information of the Disclosing Party only to those of its employees and
contractors having a need to know such Confidential Information and
shall take all reasonable precautions to ensure that such employees
and contractors comply with the provisions of this Section. The
obligations under this Section shall not apply to information that the
Disclosing 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 this 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 this Agreement by the Receiving
Party, or (iv) is independently developed by the Receiving Party
without regard to the Confidential Information. 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. Notwithstanding anything
to the contrary, Customer acknowledges and agrees that Nginx, its
employees and agents shall 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 Subscriptions,
Professional Services and Support Services performed under this
Agreement.
11. General.
11.1 Entire Agreement. This Agreement constitutes the entire
agreement between the parties concerning the subject matter of this
Agreement. No amendment, modification or waiver of any provision
of this Agreement shall be effective unless in writing and signed by
both parties. Purchase orders shall be for the sole purpose of
defining quantities, prices and describing the Products, Professional
Services and Support Services to be provided under this Agreement
and to this extent only are incorporated as a part of this Agreement
and all other terms in purchase orders are rejected. This Agreement
supersedes all prior or contemporaneous discussions, proposals and
agreements between the parties relating to the subject matter of this
Agreement.
11.2 Severability. If any provision of this Agreement is held to be
invalid or unenforceable, the remaining portions shall remain in full
force and effect and such provision shall be enforced to the
maximum extent possible so as to effect the intent of the parties and
shall be reformed to the extent necessary to make such provision
valid and enforceable.
11.3 Waiver. No waiver of rights by either party may be implied
from any actions or failures to enforce rights under this Agreement.
11.4 Force Majeure. Neither party shall be liable to the other for
any delay or failure to perform due to causes beyond its reasonable
control (excluding payment of monies due).
11.5 No Third Party Beneficiaries. Unless otherwise specifically
stated, the terms of this Agreement are intended to be and are solely
for the benefit of Nginx and Customer and do not create any right in
favor of any third party.
11.6 Governing Law and Jurisdiction. This Agreement shall be
governed by the laws of the State of New York, without reference to
the principles of conflicts of law. The provisions of the Uniform
Computerized Information Transaction Act and United Nations
Convention on Contracts for the International Sale of Goods shall not
apply to this Agreement. The parties shall attempt to resolve any
dispute related to this Agreement informally, initially through their
respective management, and then by non-binding mediation in New
York, New York. Any litigation related to this Agreement shall be
brought in the state or federal courts located in New York, New York,
and only in those courts and each party irrevocably waives any
objections to such venue.
11.7 Notices. All notices must be in writing and shall be effective
three (3) days after the date sent to the other party's headquarters,
Attention Legal Department.
11.8 Government Regulation. Customer acknowledges that the
Products are subject to export restrictions by the U.S. government
and import restrictions by certain foreign governments. Customer
may not export or re-export the Products except in compliance with
the U.S. Export Administration Act and the related rules and
regulations and similar non-U.S. government restrictions, if
applicable. Customer shall not and shall not allow any third-party to
remove or export from the United States or allow the export or reexport
of any part of the Products or any direct product thereof: (i)
into (or to a national or resident of) any embargoed or terroristsupporting
country; (ii) to anyone on the U.S. Commerce
Department's Table of Denial Orders or U.S. Treasury Department's
list of Specially Designated Nationals; (iii) to any country to which
such export or re-export is restricted or prohibited, or as to which the
U.S. government or any agency thereof requires an export license or
other governmental approval at the time of export or re-export
without first obtaining such license or approval; or (iv) otherwise in
violation of any export or import restrictions, laws or regulations of
any United States or foreign agency or authority. Customer agrees to
the foregoing and warrants that it is not located in, under the control
of, or a national or resident of any such prohibited country or on any
such prohibited party list. The Products are further restricted from
being used for the design or development of nuclear, chemical, or
biological weapons or missile technology, or for terrorist activity,
without the prior permission of the U.S. government. The Products
and accompanying Documentation are deemed to be "commercial
computer software" and "commercial computer software
documentation", respectively, pursuant to DFAR Section 227.7202
and FAR Section 12.212(b), as applicable. Any use, modification,
reproduction, release, performing, displaying or disclosing of the
Products and Documentation by the U.S. Government shall be
governed solely by the terms of this Agreement.
11.9 Marketing. Customer agrees that: (a) Nginx may
use Customer's logo on its website, (b) Customer will serve as
a reference customer for the Products and (c) Customer will
work together with Nginx to prepare a case study based on
Customer's use of the Products.
12. Definitions.
"Confidential Information" means 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 one party to the other party under this
Agreement in connection with the transactions 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.
"Disclosing Party" means the party to this Agreement disclosing
Confidential Information to the other party.
"Documentation" means the electronic user and administrative
manuals contained within the Products.
"End Users" mean the end user customers that subscribe to the Web
Services.
"Fees" mean the fees set forth in the applicable Order Form for
Subscriptions, Support Services, Professional Services and travel
expenses incurred by Nginx personnel in performing the Professional
Services.
"Order Form" is an order form entered into by Nginx and Customer
for Subscriptions and / or Professional Services which incorporates
this Agreement.
"Products" means the products licensed by Nginx to Customer as
listed on the applicable Order Form.
"Professional Services" mean the consulting and training services
provided by Nginx under this Agreement.
"Receiving Party" means the party to this Agreement receiving
Confidential Information from the other party.
"Services" means collectively the Support Services and the
Professional Services.
"Subscription" means the term license to the Products and Support
Services for the Products as described in Section 1 and the
applicable Order Form.
"Support Services" mean the maintenance and Support Services
provided by Nginx under this Agreement as further described in
Exhibit A.
"Web Services" means Customer's online web service offerings. The
Web Services must not allow End Users to access or use the
Products directly and must not offer functionality which is competitive
with or would serve as a replacement or substitute for the
functionality of the Products on a stand-alone basis.
EXHIBIT A
SUPPORT SERVICES
During the applicable Subscription term, Nginx will provide Support Services for the Products licensed by Customer from Nginx
on the terms and conditions set forth below.
1. Eligibility
Nginx will provide Support Services only for the Products licensed from Nginx by Customer and later Updates of the same
Products.
2. Support Services
Nginx will provide the following Support Services:
2.1 Update Releases Provided. Nginx shall make available to Customer all Updates made generally available to Subscription
customers by Nginx.
2.2 Proactive Security Notifications. Nginx shall proactively make available to Customer all internal security bulletins.
2.3 Update Distribution. Updates will be provided for download from the Nginx customer support portal. Updated Documentation
will be provided with such new Updates. Customer acknowledges and agrees that Nginx shall have no responsibility to install or
configure any Products as part of the Support Services.
2.4 Documentation or Configuration Issues Resolved. Nginx will help Customer resolve doubts with Documentation where
observed Product behavior is different from Documentation, Documentation isn't clear or consistent, or other minor
Documentation issues occur.
2.5 Binary Package Issues Resolved. Nginx will assist Customer in resolving warnings on binary launch, system library conflicts
or other issues with the binary Nginx packages. Customer acknowledges and agrees that Nginx shall have no responsibility to
directly participate in installation or configuration of any Products as part of the Support Services. Nginx shall also not be
responsible for resolving any other compatibility issues unrelated to the Nginx binary package.
2.6 Error Correction. Following receipt of notice of an Error from a Named Contact, Nginx shall make commercially reasonable
efforts to: (a) respond to Customer within the corresponding SLA time (see below); (b) reproduce the issue; and (c) repair any
Errors or provide a workaround.
The following table summarizes SLA parameters for Standard and Premium levels of support1:
SLA Standard Premium
Support hours 9x5 24x72
Number of incidents Unlimited Unlimited
Initial response time 8 hours 2 hours
Answers about Documentation 24 hours 8 hours
Customer Named Contacts 2 5
Email and Web support Yes Yes
Phone support No Yes (Pre-arranged)
1 Standard and Premium Level SLAs are not applicable to the Developer Edition Subscriptions.
2 24x7 for High and Medium Severity incidents only
Hot bug fixes Not included Included
3. Support Obligations
3.1 Classification for Prioritization. Nginx shall initially classify Errors in accordance with the severity breakdown set forth below
and based on the circumstances described by Customer. Nginx will use commercially reasonable efforts to provide the services
described below for each type of Error observed.
Severity
Level
Description
1 High Severity
Prevents Customer from continuing use of Product(s), or critically impacts core function of the Products or
Customer's environment. Causes the Products to experience downtime, or performance of the Products is
severely degraded due in whole or in part to an Error. No workaround known to Customer. Nginx will use
continuous efforts during the support hours shown above to provide a resolution for any Severity Level 1 Error.
2 Medium Severity
Prevents Customer from continuing use of a function of the Products, but does not affect the performance or
functionality of the Customer's environment in its entirety. Impacts Customer's ability to use the Products, the
severity of which is significant and may be repetitive in nature. Nginx will use commercially reasonable efforts
during its normal hours of operation to provide a resolution for any Severity 2 Errors.
3 Low Severity
The reported Error is minor, not inhibiting any of the necessary functionality of the Products. Error negligibly
impacts Customer's ability to use the Products, and Products remain functional. This category may include
enhancement requests, common how-to questions, and any Product issues with a viable workaround. As soon as
it is commercially practicable, Nginx will use reasonable efforts during its normal hours of operation to provide a
resolution for any Severity 3 Error.
4 Request for Information
Includes minor, cosmetic, or documentation-related issues, and enhancement requests that are not time-sensitive.
There is no impact on the Product's existing features, functionality, performance or stability. Nginx will provide
solutions in its sole discretion.
3.2 Progress Reporting. Nginx shall issue a trouble ticket number for each Error reported by the Named Contact to Nginx. Each
Error will be tracked by trouble ticket number and will include all associated symptoms and activities. Named Contact shall
reference the ticket number in all communications associated with an Error. Customer and Nginx shall keep each other's support
personnel informed of the progress when resolving any Error. The trouble ticket shall be closed by the Nginx customer support
team upon acknowledgment by the Customer that the Error is resolved. If the Customer neither acknowledges, nor contests in
writing the resolution of the Error within five (5) business days following an e-mail or other written notification by the Nginx
customer support team to the Customer and the Nginx customer support team considers the Error resolved, the trouble ticket
shall be closed.
3.3 Customer Support Operations. Nginx will provide Support Services via e-mail, online support portal, and / or telephone help
line during the term of the applicable Subscription to Named Contacts. Customer should first consult the online support portal as
it provides a knowledge base and answers to frequently asked customer questions. The contact information for the Nginx
customer support team is:
Web: http://rt.nginx.com
E-Mail: plus-support@nginx.com
3.4 Conditions for Providing Support Services. Nginx's obligation to provide Support Services is conditioned upon the following:
(a) Customer makes reasonable efforts to correct the Error after consulting with Nginx; (b) Customer provides Nginx with
sufficient information and resources to correct the Error either at Nginx's customer support center or via remote access to
Customer's site, as well as access to the personnel, hardware, and any additional software involved in discovering the Error; (c)
Customer promptly installs all Updates; and (d) Customer procures, installs and maintains all equipment, telephone lines,
communication interfaces and other hardware necessary to operate the Products.
3.5 Exclusions. The following are excluded from Nginx's Support Services obligations: (i) Products that are used on or in
conjunction with hardware or software other than as specified in the Documentation; (ii) altered or modified Products; (iii) defects
in the Products due to accident, hardware malfunction, abuse or improper use; (iv) any version of the Products for which Support
Services have been discontinued by Nginx; (v) any Error caused by third party software not licensed through Nginx; (vi)
evaluation software or other software provided at no charge; (vii) open source versions of Nginx products; and (viii) any products
sold separately by Nginx.
4. Definitions
"Documentation" means the electronic user and administrative manuals contained within the Products.
"Error" means a reproducible failure of the Products to comply in a material respect with its Documentation when used as
authorized in the Agreement.
"Named Contacts" means the engineering and support personnel who are knowledgeable and trained on the Products that are
authorized to contact Nginx for Support Services.
"Products" means the products licensed by Nginx to Customer.
"Update" means a Major Version, Minor Version or Maintenance Version of the Products made available by Nginx as part of the
Support Services. Major Version means a later version of the Products identified by a change in the first digit to the left of the
decimal point ((X).yy-zz); Minor Version means a later version of the Products identified by a change in the digit(s) to the right of
the decimal point (x.(YY)-zz); and Maintenance Version means a later version of the Products identified by a change in the digits
to the right of the dash sign (x.yy-(ZZ)).