INTRODUCTION This is an agreement between you (“You” or “User”) and Alces Flight Ltd (“Alces”). By purchasing the Service (“The software made available to you on AWS Marketplace”), you agree to be bound by the terms of this agreement – if you are not willing to be bound by this agreement, please do not complete your purchase on AWS Marketplace and cease use of the service immediately. You may have another written agreement with Alces that supersedes or replaces some portions or all of this agreement. This document is Copyright 2015-2016 Alces Flight Ltd. VERSION CONTROL This is version 1.01A of this document. Revision history: 1.0 – Initial version for review 1.01 - Updates to support URLs 1.01A - Updates to FUP DEFINITIONS “Alces” and “Alces Flight Ltd” means Alces Flight Ltd, a United Kingdom company with registration number 10095215, based in Bicester, Oxfordshire, England. “Amazon” means Amazon.com Inc. 1200 12th Avenue South, Suite 1200, Seattle, Washington 98144, USA. “AMI” or “Amazon Machine Image” means a virtual machine image containing an operating system, software applications, libraries and/or data compatible with Amazon web services (AWS). “AWS” or “Amazon Web Services” is a publically available cloud computing platform owned by Amazon. In order to use AWS Marketplace products, users must agree separately to AWS terms and conditions – the latest available version can be found at http://aws.amazon.com/agreement/. “Alces Flight Compute Appliance” and “Alces Flight Compute” mean the software that is made available to you for use with AWS Marketplace. This agreement defines how this software may be used, accessed and distributed. s “Alces Clusterware” and “Alces Gridware” are open-source software projects managed by Alces and its partners. Components of these projects are packaged and bundled with the Service in order to deliver key features. “Content”, “Third-party software” and “Third-party applications” means software, libraries, routines, documentation and methods contributed by third-party providers. The Service may include such components, each with an included or referenced EULA specific to that component. Users are responsible for ensuring that they adhere to the EULAs for the software that they use. “Service” means the Alces Flight Compute Appliance, as made available to you on AWS Marketplace. “EULA” or “End-User License Agreement” refers to the license and usage agreement for a particular piece of software. This document is the EULA for Alces Flight Compute Appliance. “BYOL” means “Bring Your Own License”, and refers to an AWS Marketplace option that allows customers to purchase a support license directly from Alces, and contract separately with Amazon for public cloud or on-premise resources. “Effective Date” means the date on which you purchase access to the Service via AWS Marketplace, or enter into a BYOL agreement with Alces. “Term” means the dates between which you have purchased access to the Service. “You”, “the User(s)” or “Customer” means you, as well as other users from your company, institution or affiliation that are authorized by you to access the Service. GRANT OF RIGHTS Alces hereby grants you a non-exclusive, non-transferable license to access and use the Service and Content in accordance with the terms of this Agreement during the Term indicated with your purchase for the purposes described in this document. The Service and Content are owned by or otherwise licensed to Alces or referenced third-parties, and Alces reserves all rights to the Service and Content not expressly granted to customers by this EULA. Customers may only use the Service in an active state for the number of hours which have been purchased, in connection with supported AWS instance type. Customers may access, make and distribute copies of Service documentation for use by the Users to assist in usage of the Service. All copies must replicate the copyright notifications present in the originals. The Service will be delivered via an AWS AMI, supporting Cloud-Formation templates and product documentation. RESTRICTIONS The Service may include Content installed or derived from a range of sources, with different EULAs applicable to its use. Alces makes no warranty that third-party content will be compatible with other software products – users are not required to use all component parts, but will not unbundle component parts nor repackage parts for redistribution. Customers are prohibited from: a) renting, leasing, re-licensing or reselling the Service without written approval from Alces; b) using the Service to support business-critical, real-time safety systems or to operate nuclear facilities, life support or other mission critical applications where human life or property may be at stake. Customers accessing the Service may subscribe to gain access to an AMI containing a fully-working version of the Service, complete with access to Content as described in product documentation. Users are not permitted to make copies of this AMI, aside from a backup copy of the original AMI which must be used under the terms of this agreement. Users wishing to create a customised environment for their own usage are encouraged to visit the open-source Alces Clusterware project at the URL referenced in the license section of this document. As a Service provider, in providing services Alces is not an exporter of data as contemplated by the International Traffic in Arms Regulations (ITAR) and other export control laws. As a result, Alces is not required to maintain a comprehensive export compliance program. However, export controls may still be enforced by AWS Marketplace – Customers must confirm that their usage falls within the relevant acceptable AWS usage guidelines before using the Service. SOFTWARE COPYRIGHT and INTELLECTUAL PROPERTY RIGHTS Alces owned software utilised by the Service remains the intellectual property of Alces; Content software remains the intellectual property of its copyright holders (as indicated by supporting EULAs). All software remains protected by copyright in UK law, and via international treaty and applicable laws in the country in which it is accessed and used. This agreement does not grant Customers any intellectual property rights for the software included as part of the Service. Alces Clusterware is free software: you can redistribute it and/or modify it under the terms of the GNU Affero General Public License as published by the Free Software Foundation, either version 3 of the License, or (at your option) any later version. Alces Clusterware is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the GNU Affero General Public License for more details. You should have received a copy of the GNU Affero General Public License along with the Service. If not, see http://www.gnu.org/licenses/. For more information on the Alces Clusterware, please visit: https://github.com/alces-software/clusterware. “Alces” and product names incorporating “Alces” branding are registered trademarks of Alces Flight Ltd in the United Kingdom and/or other countries. All other trademarks are the property of their respective owners. WARRANTY and LIABILITY THE FOLLOWING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS OR PROMISES TO CUSTOMER OR ANY THIRD PARTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING BY STATUTE, LAW, COURSE OF DEALING, CUSTOM AND PRACTICE OR TRADE USAGE. EXCEPT AS PROVIDED IN THIS EULA, THE SERVICES IS PROVIDED "AS IS". Alces is not liable for incidental, special or consequential damages for any reason (including loss of data or other business or property damage), even if foreseeable or if the Customer has advised of such a claim. Alces’ liability shall not exceed the fees that Customer has paid under this agreement. By entering into this agreement, the Customer agrees that the pricing for the services would be substantially higher but for these limitations. Alces does not control, endorse, warranty or accept responsibility for services offered by Amazon or third-parties available via AWS Marketplace or as Content delivered by the Service. The Agreement and these Conditions shall be governed by and construed in accordance with the law of England and Wales. Unless any alternative dispute resolution procedure is agreed between the parties, the parties agree to submit to the exclusive jurisdiction of the Courts of England and Wales in respect of any dispute which arises out of or under this Agreement. The User acknowledges that complex software is never wholly free from defects, errors, bugs or security vulnerabilities; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be wholly free from defects, errors, bugs and security vulnerabilities. UPGRADES and VERSIONS Alces may from time to time and at its sole discretion release upgraded versions of the Service, including options which may package similar features in a different bundle. Alces may also discontinue production of solutions or software versions and may stop supporting Software products or versions after a care-and-maintenance period. Customers will be notified at least 90 days before intention to discontinue a Service, and be offered a pro-rata refund of an unused support term via their original reseller. Updated versions of the Service may be released by Alces periodically, and shall replace existing versions available in AWS Marketplace. CONSENT TO USE OF DATA Customers agree that Alces may collect and use usage and technical data and related information, including but not limited to information about your system and software, which is gathered periodically to facilitate the provision of software updates, product support and other services to customers. Alces may use this information, as long as it is in a form that does not personally identify users on the customer site, to improve its products or to provide services or technologies to customers. SUPPORT SERVICES Usage of the Service entitles customers to request support assistance to the level purchased with their subscription from AWS Marketplace. The principle support levels are outlined below. COMMUNITY SUPPORT Customers selecting community support pay no monthly subscription fees. • Usage fees are charged on a per-instance-hour basis for access to pre-packaged versions of the Service. Customers may alternatively build their own environments for free by utilising the open-source Alces Clusterware project. • Customers may open bug reports and make enhancement requests via the open-source community support process. • Customers may optionally offer to directly fund enhancement requests by adding their contact details into their request. On receipt of a funding offer, a project representative will contact the customer to discuss possible options. • There is no guaranteed response time to customer requests. Issues will be handled by the supporting open-source projects via community support channels. • Customers may stop their usage of the Service at any time, and not be charged hourly usage fees once any AWS instances using the Service have been terminated. There are no monthly subscription costs to refund. ALCES FLIGHT COMPUTE SUPPORT Customers selecting Alces Flight Compute support pay a monthly subscription cost, covering support of the Flight Compute tools and utilities. Benefits of this service include: • Usage fees are charged on a per-instance-hour basis for access to the supported version of the Service. • Customers may open bug reports and make enhancement requests via submission of a web-based form. Support is available for: o Features of Alces Flight Compute, as documented in the release notes for the Service o Launching, access to and termination of the service via the documented methods available on AWS Marketplace o Usage of all “alces” commands, as described in release notes o Errors, omissions or clarification of product documentation • For the avoidance of doubt, support services exclude the following: o Support for Amazon Web Services (EC2, EBS, S3 or other services) o Support for third-party services (e.g. remote storage, email servers) o Support for Content (e.g. third-party software applications, libraries, compilers or MPIs, job-scheduler features not listed in product release notes, integration with existing network services, operating system support) • Although a response to customer requests will usually be provided on a next-business-day basis, please allow a minimum of 2 business days for a response to more complex customer support requests. • Customers may optionally offer to directly fund enhancement requests by adding their contact details into their request. On receipt of a funding offer, an Alces representative will contact the customer to discuss possible options. • Customers may stop their usage of the Service at any time, and not be charged hourly usage fees once any AWS instances using the Service have been terminated. Customers may request a pro-rata refund of monthly subscription fees for unused days in the current month. • A fair-usage policy applies to this support level (as described in this EULA) ALCES FLIGHT COMPUTE PLUS SUPPORT For a higher monthly fee, customers can choose to receive the benefits of Alces Flight Compute Support (as documented above), plus additional support services, as detailed below. • Job-scheduler usage; for example: o Assistance creating job-scripts, submitting different job types, optimising work-flows and managing data as part of scheduled jobs o Review of existing job-scripts to identify and eradicate errors o Porting of job-scripts from other batch schedulers • Software application usage; for example: o Installation of applications from STABLE repositories o Assistance in running and optimising applications o Enhancement requests to include new software package versions in the Service • Assistance in accessing the environment and managing data; for example: o Launching and connecting to graphical desktop environments o Transferring data into AWS from an existing source o Working with object data in Amazon S3 • For the avoidance of doubt, support services exclude the following: o Support for Amazon Web Services (EC2, EBS, S3 or other services) o Support for third-party services (e.g. remote storage, email servers) o Code-level maintenance of third-party applications; while usage support can assist customers in working-around any software application bugs, we recommend that customers contact the primary maintainer for software applications for codebase support. • Although a response to customer requests will usually be provided on a next-business-day basis, please allow a minimum of 2 business days for a response to more complex customer support requests • Customers may optionally offer to directly fund enhancement requests by adding their contact details into their request. On receipt of a funding offer, an Alces representative will contact the customer to discuss possible options. • Customers may stop their usage of the Service at any time, and not be charged hourly usage fees once any AWS instances using the Service have been terminated. Customers may request a pro-rata refund of monthly subscription fees for unused days in the current month. • A fair-usage policy applies to this support level (as described in this EULA) CUSTOM CONSULTANCY BYOL customers may purchase customised support services directly from Alces if preferred, allowing a specific package to be created without accruing AWS Marketplace costs. A contract-specific EULA will be provided with customer purchases that outlines any specific modifications to terms and conditions from this document. FAIR-USAGE POLICY A fair-usage policy applies to customer support requests that limits the minimum service that customers who subscribe for a monthly fee can expect. This policy states that: • Alces will expend a maximum amount of consultancy to assist in resolving the reporting issue equal to the amount paid to date by the customer • Alces will regularly assess remote support consultancy rates and apply them appropriately; for example, a customer paying value “Y” per month who opens a support ticket in day 10 of the month will be entitled to remote consultancy equal to the value of “((10 days / 30 days) x Y)”. • Rates are assessed over a 3-month rolling aggregation period. For example; a customer paying value “Z” per month who opens an enhancement request after 4 months will be eligible to receive remote consultancy equal to the value of “(3 x Z)”. • Alces may at its sole discretion choose to deliver additional assistance to customers above these minimum values in order to benefit the individual customers, the wider community or the Service as a whole. REQUESTING SUPPORT SERVICES Customers will submit support requests to Alces via a web-form at the following URL: http://www.alces-flight.com/support Customers will be issued with a Service Ticket Number by Alces after initial reporting of the issue which will be used to identify the request– all further correspondence regarding the case must include this Ticket Number. Without a Ticket Number, Alces will not be obliged to provide any support services to any Customer. Customers reporting issues that do not in Alces' sole opinion fall under these terms and conditions will be notified their initial communication is assessed by the support team. In these circumstances, customers may respond with a business justification to resubmit or cancel their request. All service requests must be agreed and authorized by the AWS Marketplace account holder. SERVICE HOURS Alces will provide support services on a business day basis. A Business Day is defined as 9:00 AM through 5:30 PM local UK time, excluding UK public holidays and weekends. Communications from Customers relating to support services received outside of these Working Hours will be addressed during the next Working Hours service period. SUPPORT EXCLUSIONS Unless explicitly included in writing by Alces, the support services provided under the terms of this contract will not include: • Work to resolve any reported issues that cannot be reproduced by the Customer on the supported Service. This includes issues reported after modification of the environment by the customer. • Guaranteed recovery or preservation of data or retrieval of data from any backup system. • Operation of the Service after software upgrades or updates have been applied by the Customer • Defining, auditing or implementing an information security policy for use on the Service covered by this service agreement. The security of all computer systems remains the sole responsibility of the Customer. • Any reported service issue for which the root cause is determined by Alces to be the failure or performance of a supporting third-party service (e.g. AWS EC2, EBS or S3 error). • Support services are not intended to be used to deliver solutions which perform at repeatable performance across your chosen infrastructure. Although reasonable optimisation requests may be supported, Alces is not responsible for delivering specific actual or perceived performance via the Service. The Services delivered under this agreement are not intended to be a replacement for staff training or deliver customised consultancy services. Customers submitting software support requests are expected to possess suitable technical ability to fully describe the issue experienced, and competently perform tasks on the Supported Environment. Customers are expected to have access to and have read the provided documentation before submitting software support requests. AGREEMENT TERM AND REFUNDS This agreement shall start on the Effective Date as stated in your AWS Marketplace purchase documentation and will run until the date at which the Customer chooses to Terminate. Payment for each renewal term shall be collected via AWS Marketplace, including all taxes relevant for the area where you purchased access to the Service. This agreement may be terminated at Alces’ sole discretion for non-payment or material breach of service terms. Customers will be notified in writing or by email about the intention to terminate a service agreement at least 5 working days in advance. In the event of a pre-paid contract being terminated by Alces, customers will be offered a pro-rata refund for unused service as described below. Alces acknowledge that customer requirements do change over time, and can provide a pro-rata refund if customers wish to exit from a period purchased up-front. A refund of complete, unused days can be requested by via AWS Marketplace. Customers who are billed per-instance-hour of usage for the Service must terminate any running AWS instances based on the provided AMI in order to stop being billed for the Service. Termination of this agreement for any reason will not relieve either party of obliterations included herein prior to termination. GENERAL PROVISIONS (a) Each party acknowledges that it has read this Agreement, they understand the agreement and agree to be bound by its terms. All software and the use thereof is subject to the license agreement related to each individual software package. (b) In order to keep pace with changes in our products, we regularly review our Terms and Conditions to make sure they're up to date and in line with those of supporting software. If a revision to this document is made, the Customer will be notified in writing and have 30 calendar days to fully review the new terms in detail. During this time, Alces will accept queries and clarification requests with respect to the updated terms. If no response is received from the customer contact after this time has expired, the new terms and conditions will supersede this version for the remainder of the term. (c) Times by which Alces will perform under this agreement shall be postponed automatically to the extent that we are prevented from meeting them by causes beyond reasonable control. (d) This agreement and performance hereunder shall be governed by UK law. (e) No action, regardless of form, arising out of this Agreement may be brought by the Customer more than two (2) years after the cause of action has arisen. (f) If any provision of this Agreement is invalid under any applicable statute or rule of law, it is to that extent deemed to be omitted. These terms and conditions do not affect your statutory rights as a consumer. (g) Customer may not assign or sublicense without the prior written consent of Alces the Customer's rights, duties or obligations under this Agreement to any person or entity, in whole or in part. A sale of substantially all of Licensee's assets to a third party or any transfer of more than 50% of the supported environment Licensee to a third party shall not constitute an assignment under this license. (h) Alces reserves the right to refuse service to any customer for reasons including but not limited to circumstances of actual or implied physical or verbal abuse, harassment or discrimination towards our business or our employees. Alces is committed to equality of opportunity for all and to removing barriers to equal opportunity, and recognises and accepts its responsibility to ensure that there is no discrimination on the grounds of a person's gender, marital status, race, religion, colour, age, disability or sexual orientation. CONTACT INFORMATION For enquiries, further information or to report support requests, the following contact information should be used: Postal: Alces Flight Ltd 4 Murdock Road, Bicester, OXON OX26 4PP, UK Email: awsmp@alces-flight.com