Metallic Cloud Storage Service Online Subscription Agreement

This Metallic Cloud Storage Service Online Subscription Agreement governs your use of the Metallic Cloud Storage Service offered by Commvault Systems, Inc. (“Commvault”, “we”, “us”, or “our”).  This agreement is between the entity you represent, or, if you do not designate an entity in connection with the purchase of a Subscription (as defined in Section 8), then it is between you individually (“you” or “your”), and Commvault. It consists of the terms and conditions below, as well as the Microsoft Cloud Service Terms and SLAs, the Offer Details for your Subscription, the Metallic Privacy Notice and the Data Processing Addendum (collectively, together with any additional Microsoft terms, the “agreement”). It is effective on the date you accept these terms online or the date on which your Subscription is renewed, as applicable. Key terms are defined in Section 8.

Metallic Cloud Storage Service (the “Cloud Service”) provides you with a cloud storage target  that can be used with Commvault software, appliances, and other services, the use of which is subject to separate terms and conditions, including the Commvault end user license and limited warranty agreement.

The Cloud Service is powered by Microsoft Azure.  As a result, certain aspects of the Cloud Service, including support and SLAs, and the Online Data Processing Addendum with subprocessor may be managed by, or provided by, Microsoft and may be subject to such additional terms. By subscribing to the Cloud Service, you are agreeing to the terms of any applicable Microsoft agreements or policies.

1. Use of Cloud Service.

a. Right to use. We grant you the right to access and use the Cloud Service, as further described in this agreement. We reserve all other rights.

b. Acceptable use. You may use the Cloud Service only in accordance with this agreement You may not reverse engineer, decompile, disassemble, or work around technical limitations in the Cloud Service, except to the extent applicable law permits it despite these limitations. You may not disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters your use of the Cloud Service. You may not rent, lease, lend, resell, transfer, or host the Cloud Service, or any portion thereof, to or for third parties except as expressly permitted by this agreement.

c. End Users. You control access by End Users, and you are responsible for their use of the Cloud Service in accordance with this agreement.

d. Customer Data. You are solely responsible for the content of all Customer Data. You will secure and maintain all rights in Customer Data necessary for us to provide the Cloud Service to you without violating the rights of any third party or otherwise obligating Commvault to you or to any third party. Commvault does not and will not assume any obligations with respect to Customer Data or to your use of the Cloud Service other than as expressly set forth in this agreement, the Data Processing Addendum, or as required by applicable law.

e. Personal Data.  Your use of the Cloud Service may be subject to certain laws and regulations governing the processing of personal data by Commvault as set forth in the the Data Processing Addendum or other applicable policies.  If applicable, you agree that your use of the Cloud Service shall be subject to the terms of Data Processing Addendum, available at https://metallic.io/data-processing-addendum

f. Responsibility for your accounts. You are responsible for maintaining the confidentiality of any non-public authentication credentials associated with your use of the Cloud Service. You must promptly notify our customer support team about any possible misuse of your accounts or authentication credentials or any security incident related to the Cloud Service.

g. Preview releases. We may make Previews available from time to time, in our sole discretion. Previews are provided “as-is”, “with all faults”, and “as-available”, and are excluded from the SLAs and all limited warranties provided in this agreement. Commvault will have no liability or other obligations with regard to any Previews. Previews may not be covered by customer support. We may change or discontinue Previews at any time without notice. We also may choose not to release a Preview into general availability.

h. Additional Managed Services for the Cloud Service. If you have obtained Commvault’s written permission, you may use the Cloud Service to provide a Managed Service Solution provided you have the sole ability to access, configure, and administer the Cloud Service. You are responsible for the third party’s use of the Cloud Service in accordance with the terms of this agreement. Your provision of Managed Services remains subject to the following limitations (and any other limitations in the Cloud Service Terms):

(i) you may not resell or redistribute the Cloud Service.

(ii) you may not allow multiple users to directly or indirectly access any Cloud.

Service feature that is made available on a per-user basis.

i. Administrator Assumption of Control. If you use an email address provided by an organization you are affiliated with (e.g. an employer or school) to order an Cloud Service individually, you represent that you have authority to use that organization’s domain to sign up for a Subscription in your capacity as a member of that organization. The organization, as the owner of the domain associated with your email address, may assume control over and manage your use of the Cloud Service. In such a case, your organization’s designated administrator (your “admin”) may (i) control and administer your account, including modifying and terminating your access and (ii) access and process your data, including the contents of your communications and files. Commvault may inform you that your organization has assumed control of the Cloud Service covered by your Subscription, but Commvault is under no obligation to provide such notice. If your organization is administering your use of the Cloud Service or managing the tenant associated with your Subscription, direct your data subject requests and privacy inquiries to your administrator.

j. Shared Directory Data. When you order an Cloud Service using an email address with a domain provided by an organization you are affiliated with (e.g. an employer or school), the Cloud Service may add you to a directory of users that share the same email domain. Your directory data (name, date of signup, and email address) may be visible to other users of the Cloud Service within your organization’s email domain.

k. Additional Software for use with the Cloud Service. To enable optimal access to and use of certain Cloud Service, you may install and/or use certain Commvault Software in connection with your use of the Cloud Service as described in the Cloud Service Terms. We license Software to you; we do not sell it. Proof of your Software license is (1) this agreement, (2) any order confirmation, and (3) proof of payment. Your rights to access Software on any device do not give you any right to implement Commvault or any third party patents or other Commvault or third party intellectual property in software or devices that access that device.

2. Purchasing services.

a. Available Subscription offers.  Subscription offers and pricing for the Cloud Service will be made available to you in either a written price quote or on www.commvault.com/MCSS. These generally can be categorized as one or a combination of the following:

(i) Commitment Offering. You commit in advance to purchase a specific quantity of Cloud Service for use during a Term and to pay upfront or on a periodic basis in advance of use. Additional or other usage (for example, usage beyond your commitment quantity) may be treated as an additional Commitment Offering. Committed quantities not used during the Term will expire at the end of the Term.

(ii) Limited Offering. You may receive a limited quantity of Cloud Service without charge for a limited term (for example, as a trial Subscription or free account) or as part of another Commvault offering (for example, a renewal of Commvault Complete Backup & Recovery). It is in Commvault’s discretion whether to offer Limited Offerings to customers, and to establish the terms on which such Limited Offerings would be available. Provisions in this agreement with respect to pricing, cancellation fees, payment, and data retention may not apply.

b. Ordering.

(i) By ordering or renewing a Subscription, you agree to the Offer Details for that Subscription. Unless otherwise specified in those Offer Details, Cloud Service are offered on an “as available” basis. You may place orders for your Affiliates under this agreement and grant your Affiliates administrative rights to manage the Subscription, but Affiliates may not place orders under this agreement. You also may assign the rights granted under Section 1.a. to a third party for use by that third party in your internal business. If you grant any rights to Affiliates or third parties with respect to Software or your Subscription, such Affiliates or third parties will be bound by this agreement and you agree to be jointly and severally liable for any actions of such Affiliates or third parties related to their use of the Cloud Service.

c. Pricing and payment. Payments are due and must be made according to the Offer Details for your Subscription.

(i) For Commitment Offerings, the price level may be based on the quantity of the Cloud Service you order. During the Term of your Subscription, prices for the Cloud Service will not be increased, as to your Subscription, from those  confirmed at the time your Subscription became effective or was renewed, except where prices are identified as temporary in the Offer Details, or for Previews . All prices are subject to change at the beginning of any Subscription renewal.

d. Renewal.

(i) Upon renewal of your Subscription, this agreement will be superseded by the then-applicable terms and conditions set forth on Commvault’s website on the date on which your Subscription is renewed (the “Renewal Terms”).

(ii) For Commitment Offerings, you may choose to have a Subscription renew or terminate upon expiration of the Term.

(iii) For Limited Offerings, renewal may not be permitted.

e. Eligibility. You agree that if you are purchasing the Cloud Service for or on behalf of a governmental entity or other entity subject to additional regulatory restrictions, additional requirements may apply.  Commvault reserves the right to verify eligibility at any time and suspend the Cloud Service if the eligibility requirements are not met.

f. Taxes.  Cloud Service purchased under this Agreement is exclusive of any value added and other applicable taxes. Such taxes will be added to any invoice for the Cloud Service. You are responsible for all such taxes, fees or charges.

3. Term, termination, and suspension.

a. Agreement term and termination. This agreement will remain in effect until the expiration, termination, or renewal of your Subscription, whichever is earliest.

b. Subscription termination. You may terminate a Subscription at any time during its Term; however, you must pay all amounts due and owing for the duration of the Subscription Term before the termination is effective.  No refunds will be provided.

c. Suspension. We may suspend your use of the Cloud Service if: (1) it is reasonably needed to prevent unauthorized access to Customer Data; (2) you fail to respond to a claim of alleged infringement under Section 5 within a reasonable time; (3) you do not pay amounts due under this agreement; or (4) you do not abide by the Acceptable Use Policy or you violate other terms of this agreement; or (5) in the case of Limited Offerings or Previews, if the Subscription becomes inactive from your failure to access the Cloud Service as described in the Offer Details or if you fail to purchase an additional Subscription by the end of the offer Term.   To the greatest extent possible, a suspension will apply to the minimum necessary part of the Cloud Service and will be in effect only while the condition or need exists. We will give notice before we suspend, except where we reasonably believe we need to suspend immediately. We will give at least 30 days’ notice before suspending for non-payment. If you do not fully address the reasons for the suspension within a reasonable period after notice, we may terminate your Subscription. We may also terminate your Subscription if your use of the Cloud Service is suspended more than twice in any 12-month period.

d.  Effect of Termination.  Upon Termination of a Subscription or the expiration of a Term, we will retain Customer Data on your behalf for a period of 30 days following Termination or expiration.  After that point, we may delete your Customer Data.  You are solely responsible for the retention policies and any other policy settings, schedules, and configurable parameters applied to Customer Data. You have the sole responsibility to save or delete Your Data at termination or expiration of the Cloud Services.

4. Warranties.

a. Limited warranty.

(i) Cloud Service. We warrant that the Cloud Service will be accessible at least 99.9% of the time. This service level does not apply to any performance or availability issues due in whole or in part to: (a) any planned maintenance, repair, and upgrade; (b) issues or failures with Your, or third party (including Microsoft), services, applications, software, hardware or other components not supplied by Us; (c) third-party attacks, intrusions, distributed denial of service attacks or force majeure events, including at Your site or between Your site and data centers available through the Services; or (d) Your acts or omissions.

In the event of a breach of this warranty, you may seek a credit (a “Service Credit’) which, if approved by us, will be equal to a percentage of the monthly Service fee You pay.  You must submit a claim to our Customer Support with all information necessary for us to validate the claim, including but not limited to: (i) a detailed description of the incident; (ii) information regarding the time and duration of the downtime; and (iii) description of the attempts to resolve the incident at the time of occurrence.  We must receive Your claim within 30 days of the end of the billing month in which the incident that is the subject of the claim occurred.  We will evaluate all information reasonably available and make a final, good faith determination as to whether a Service Credit is owed. If You timely and properly file a claim that is approved by us, You will receive the following Service Credit for the month and it will be applied to reduce Your next month invoice for the Services:

Service AvailabilityService Credit
Less than 99.9%10%
Less than 99%25%

The foregoing represents Your sole and exclusive remedy for any breach of the performance warranty. You are not eligible for any Service Credit if Your use of the Service is free of charge.

(ii) Software. Our warranties with respect to any Software is as set forth in our End User and Limited Warranty agreement. 

b. Limited warranty exclusions. This limited warranty is subject to the following limitations:

(i) any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law will last one year from the start of the limited warranty;

(ii) this limited warranty does not cover problems caused by accident, abuse or use of the Cloud Service in a manner inconsistent with this agreement or additional terms that may apply as well as our or third party’s published documentation or guidance, or resulting from events beyond our reasonable control;

(iii) this limited warranty does not apply to problems caused by a failure to meet minimum system requirements; and

(iv) this limited warranty does not apply to Previews or Limited Offerings.

c. DISCLAIMER. Other than this warranty, we provide no warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability or fitness for a particular purpose. These disclaimers will apply except to the extent applicable law does not permit them.

5. Defense of claims.

a. Defense.

(i) We will defend you against any claims made by an unaffiliated third party that a Cloud Service infringes that third party’s patent, copyright or trademark or makes unlawful use of its trade secret.

(ii) You will defend us against any claims made by an unaffiliated third party that (1) any Customer Data, or Non-Commvault product or service, or any services you provide, directly or indirectly, in using an Cloud Service infringes the third party’s patent, copyright, or trademark or makes unlawful use of its trade secret; (2) Your use of the Cloud Services in violation of these terms; or (3) arises from violation of the Acceptable Use Policy.

b. Limitations. Our obligations in Section 5.a. will not apply to a claim or award based on: (i) any Customer Data, Non-Commvault products or services, modifications you make to the Cloud Service, or services or materials you provide or make available as part of using the Cloud Service; (ii) your combination of the Cloud Service with, or damages based upon the value of, Customer Data or a Non-Commvault product or service, data, or business process; (iii) your use of a Commvault trademark without our express written consent, or your use of the Cloud Service after we notify you to stop due to a third-party claim; (iv) your redistribution of the Cloud Service to, or use for the benefit of, any unaffiliated third party; or (v) Cloud Service provided free of charge.

c. Remedies. If we reasonably believe that a claim under Section 5.a.(i). may bar your use of the Cloud Service, we will seek to: (i) obtain the right for you to keep using it; or (ii) modify or replace it with a functional equivalent and notify you to stop use of the prior version of the Cloud Service. If these options are not commercially reasonable, we may terminate your rights to use the Cloud Service and then refund any advance payments for unused Subscription rights.

d. Obligations. Each party must notify the other promptly of a claim under this Section. The party seeking protection must (i) give the other sole control over the defense and settlement of the claim; and (ii) give reasonable help in defending the claim. The party providing the protection will (1) reimburse the other for reasonable out-of-pocket expenses that it incurs in giving that help and (2) pay the amount of any resulting adverse final judgment or settlement. The parties’ respective rights to defense and payment of judgments (or settlement the other consents to) under this Section 5 are in lieu of any common law or statutory indemnification rights or analogous rights, and each party waives such common law or statutory rights.

6. Limitation of liability.

a. Limitation. The aggregate liability of each party for all claims under this agreement is limited to direct damages up to the amount paid under this agreement for the Cloud Service during the 12 months before the cause of action arose; provided, that in no event will a party’s aggregate liability for any Cloud Service exceed the amount paid for that Cloud Service during the Subscription.

b. EXCLUSION. Neither party will be liable for loss of revenue or indirect, special, incidental, consequential, punitive, or exemplary damages, or damages for lost profits, revenues, business interruption, loss of data, or loss of business information, even if the party knew they were possible or reasonably foreseeable.

c. Exceptions to limitations. The limits of liability in this Section apply to the fullest extent permitted by applicable law, but do not apply to: (1) the parties’ obligations under Section 5; or (2) violation of the other’s intellectual property rights.

7. Miscellaneous.

a. Notices. Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to Commvault must be sent to the following address:

Commvault Systems, Inc.
1 Commvault Way
Tinton Falls, NJ 07724
USA

Notices to you will be sent to the address that you identify on your account as your contact for notices. Commvault may send notices and other information to you by email or other electronic form.

b. License Transfers and Assignment. You may not assign this agreement either in whole or in part or transfer licenses without Commvault’s consent.

c. Severability. If any part of this agreement is held unenforceable, the rest remains in full force and effect.

d. Waiver. Failure to enforce any provision of this agreement will not constitute a waiver.

e. No agency. This agreement does not create an agency, partnership, or joint venture.

f. No third-party beneficiaries. There are no third-party beneficiaries to this agreement.

g. Applicable law and venue. This agreement is governed by New Jersey law, without regard to its conflict of laws principles, except that (i) if you are a U.S. Government entity, this agreement is governed by the laws of the United States, and (ii) if you are a state or local government entity in the United States, this agreement is governed by the laws of that state. Any action to enforce this agreement must be brought in the State of New Jersey. This choice of jurisdiction does not prevent either party from seeking injunctive relief in any appropriate jurisdiction with respect to a violation of intellectual property rights.

h. Entire agreement. This agreement is the entire agreement concerning its subject matter and supersedes any prior or concurrent communications. In the case of a conflict between any documents in this agreement that is not expressly resolved in those documents, their terms will control in the following order of descending priority: (1) this agreement, (2) the applicable Microsoft terms, (3) the applicable Offer Details, and (4) any other documents referenced in this agreement.

i. Survival. The terms in Sections 1, 2.e., 3.d, 4, 5, 6, and 7 will survive termination or expiration of this agreement.

j. U.S. export jurisdiction. The Cloud Service are subject to U.S. export jurisdiction. You must comply with all applicable laws, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and end-user, end-use and destination restrictions issued by U.S. and other governments.

k. Force majeure. Neither party will be liable for any failure in performance due to causes beyond that party’s reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), pandemic, acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Cloud Service)). This Section will not, however, apply to your payment obligations under this agreement.

l. Contracting authority. If you are an individual accepting these terms on behalf of an entity, you represent that you have the legal authority to enter into this agreement on that entity’s behalf. If you specify an entity, or you use an email address provided by an entity you are affiliated with (such as an employer) in connection with a Subscription purchase or renewal, that entity will be treated as the owner of the Subscription for purposes of this agreement.

m. Government customers.  By accepting this agreement, you represent that you have complied and will continue to comply with all applicable laws and governmental procurement requirements.

8. Definitions.

Any reference in this agreement to “day” will be a calendar day.

“Acceptable Use Policy” is set forth at https://metallic.io/acceptable-use-policy

“Affiliate” means any legal entity that a party owns, that owns a party, or that is under common ownership with a party. “Ownership” means, for purposes of this definition, control of more than a 50% interest in an entity.

“Cloud Service” means the Metallic Cloud Storage Service to which you subscribe under this agreement.

“Commitment Offering”, or “Limited Offering” describe categories of Subscription offers and are defined in Section 2.

“Customer Data” means all data, including all text, sound, video, or image files, and software, that are provided to Commvault by, or on behalf of, Customer, or generated through use of the Cloud Service.

“End User” means any person you permit to use the Cloud Service or access Customer Data protected using the Cloud Service.

“Managed Service Solution” means a managed IT service you provide to a third party that consists of the administration of and support for the Cloud Service, if authorized by Commvault.

“Non-Commvault product or service” means any product or service not provided by Commvault.

“Offer Details” means the pricing and related terms applicable to a Subscription offer (which may include Limited Offerings or Previews).

“Cloud Service” means the Metallic Cloud Storage Service to which you subscribe under this agreement.

“SLA” means the commitments we make regarding delivery and/or performance of an Online Service as set forth herein.

“Software” means Commvault software we provide for installation on your device as part of your Subscription or to use with the Cloud Service to enable certain functionality.

“Subscription” means an enrollment for Cloud Service for a defined Term, whether it is a Commitment Offering, a Renewal, or a Limited Offering. You may purchase multiple Subscriptions, which may be administered separately, and which will be governed by the terms of a separate Metallic Cloud Storage Service Online Subscription Agreement.

“Term” means the duration of a Subscription.