Continental Innovates with Rancher and Kubernetes
This Rancher Enterprise Agreement (“Agreement”) is between you (“Customer”) and your Affiliates and Rancher Labs, Inc. (“Rancher”) and its Affiliates (each a “Party” and together the “Parties”) and governs Customer’s relationship with Rancher for the provision of Rancher Products and Services. Customer desires to purchase certain Products or Services from Rancher;
NOW THEREFORE, the Parties enter into this Agreement for the provision of Products or Services to Customer.
Limitations. This Professional Services Addendum will only apply where Customer is purchasing Rancher Professional Services.
Performance of Services. Except as described below, Rancher will provide Customer with Professional Services (the “Services”) as specifically set forth in Statements of Work agreed to in writing and signed by the parties (each, a “Statement of Work” or “SOW”). This addendum is incorporated by reference into the Rancher Enterprise Agreement (together the “Agreement”). Upon the execution of a Statement of Work by the parties, it shall automatically be deemed part of the Agreement.
If an SOW is not specifically agreed and signed by the Parties, the following shall govern with respect to performance of Services: a) the consultant will operate at the general direction of the Customer, providing the following types of services; advice, knowledge transfer, architecture, documentation, and hands on assistance with the implementation of Rancher’s products (including but not limited to: Rancher, RKE, K3s, and Longhorn) and related open source solutions, b) the assigned consultant will work with Customer to monitor goals and efforts on a weekly basis, c) at the direction of the Customer, the assigned consultant may assist in the coordination of Customer’s Rancher and Kubernetes environments.
Professional Services Statement of Work Changes. If the Customer desires to modify the Services performed under any Statement of Work for a Professional Services engagement, Customer shall provide written notice thereof to Rancher, which notice shall include a description of the requested modification to the Services. Promptly following Rancher’s receipt of Customer’s written notice, Rancher shall submit a written change order proposal to Customer. Such change order proposal shall include an estimate of additional charges for the modified Services, if any, any expected impact the change will have on the scheduled date(s) for delivery or completion of such Services, and any other information necessary for a complete description of the desired changes. On Customer’s written approval of the change order proposal, the Change Order proposal will become a part of the relevant Statement of Work. No change to any Statement of Work shall be binding on the parties unless the change is embodied in a writing that has been signed by an authorized representative of each party.
Rancher Personnel. The Rancher personnel (“Rancher Personnel”) assigned to perform the Services shall have appropriate technical and professional skills to enable them to perform their duties in a professional manner, consistent with generally accepted industry standards. Customer will promptly notify Rancher of any Rancher Personnel that Customer believes are performing in an unsatisfactory manner. Rancher shall cooperate with Customer in removing any Rancher Personnel who perform the Services in an unsatisfactory manner and will use commercially reasonable efforts to replace such unsatisfactory personnel with an acceptable substitute(s).
Independent Contractor. While at Customer’s facilities, all Rancher Personnel shall observe and follow Customer’s reasonable work rules, policies and standards, as communicated to Rancher in advance in writing. Rancher shall be solely responsible for (i) the payment of all wages, salaries, overtime pay and other compensation due to Rancher Personnel, (ii) the payment for and the provision of all benefits and workers’ compensation insurance in accordance with Rancher’s corporate policies, (iii) the withholding of all employment related taxes for such employees and the payment, as applicable, of employment related taxes and Workers’ Compensation Insurance. No Rancher Personnel shall be entitled to participate in, or receive any benefit or rights as an employee of any Customer entity under, any of the Customer employee benefit and welfare plans, including, without limitation, employee insurance, pension, savings and security plans, as a result of or in connection with this Agreement.
Customer Facilities. If required to perform the Services, Rancher Personnel shall be provided a safe and adequate workspace at the client’s offices. The Customer shall provide all such facilities, supplies, and services as Rancher determines are reasonably required for the performance of the Rancher Personnel’s duties under this Agreement, including sufficient network access to allow for internet (and intranet, if required) access from the Rancher Personnel’s laptop.
Remote Work; Multiple Personnel; Work Schedule. At Rancher’s discretion the Services may be delivered onsite, remotely, or as a mix of on-site and remote delivered services, using multiple personnel, or as the Parties agree in an applicable Statement of Work. Rancher Personnel will deliver Services on a forty hour per week basis, Monday through Friday, between the hours of 8:00 am and 7:00 pm (the “Regular Work Hours”), time zone for delivery shall be mutually agreed upon by the parties and defined in the SOW. Services delivered outside Regular Work Hours, or on holidays, will be charged at two hundred percent (200%) of contracted rates. Rancher company holidays, for personnel rendering services in the United States are: New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, the day after Thanksgiving Day, and Christmas Day. Holidays for Rancher personnel delivering Services outside the United States are specified in the applicable Statement of Work.
Deliverables. Services are provided on a time and materials basis with no deliverables except those specified in an executed Statement of Work. Projects are considered complete and accepted when the Professional Services or Training hours purchased by Customer are complete. Customer’s payment of an invoice constitutes acceptance of the Services invoiced.
Term. Unless otherwise agreed by the Parties, Services are to be delivered within 12 months from the date of purchase. Services not delivered within this term will be considered forfeited.
Payment of Expenses. Any travel or other expenses associated with performing Rancher Services under an executed Statement of Work will be billed to the Customer at actual cost and Rancher will provide supporting documentation for such expenses unless otherwise agreed to in writing in the applicable SOW. Customer will be responsible for any change or cancellation fees incurred in the event that Customer requests to reschedule the performance of Services or does not meet the requirements described in the Customer Facilities section.
Use of Rancher Hosted Services
Security and Data Privacy.
Security. We will implement commercially reasonable and appropriate measures designed to secure your CPE against accidental or unlawful loss, access or disclosure.
Your CPE. Except for the activities Rancher undertakes on your behalf within your CPE pursuant to this Agreement, and except to the extent caused by our breach of this Agreement, (a) you are responsible for all activities that occur under your CPE, regardless of whether the activities are authorized by you or undertaken by you, your employees or a third party (including your contractors, agents or End Users), and (b) we and our affiliates are not responsible for unauthorized access to your CPE. You will ensure that your CPE and your and End Users’ use of your CPE or the Rancher Hosted Services will not violate the Agreement, this Addendum, the Acceptable Use Policy, or applicable law. You are solely responsible for the your development, operation, maintenance, and use of your CPE.
Your Security and Backup. You are responsible for properly configuring and using the Rancher Hosted Services and otherwise taking appropriate action to secure, protect and backup your accounts and your CPE in a manner that will provide appropriate security and protection, which might include use of encryption to protect your CPE from unauthorized access and routinely archiving your CPE.
Log-In Credentials and Account Keys. Rancher Hosted Services log-in credentials are for your internal use only and you will not sell, transfer or sublicense them to any other entity or person, except that you may disclose your log in credentials to your agents and subcontractors performing work on your behalf.
End Users. You are responsible for End Users’ use of your CPE and the Rancher Hosted Services. You will ensure that all End Users comply with your obligations under this Agreement. If you become aware of any violation of your obligations under this Agreement caused by an End User, you will immediately suspend access to your CPE and the Rancher Hosted Services by such End User.
Rancher Hosted Services Term. Any Rancher Hosted Services that Customer orders will start on the specified subscription start date as identified in the applicable Order Form and end at the expiration of the Rancher Hosted Services Subscription Term as defined in the applicable Order Form unless sooner terminated according to this Addendum. Rancher Hosted Services Subscriptions automatically renew for successive twelve (12) month terms unless either party gives written notice to the other party of its intention not to renew. Notice of non-renewal must be given at least sixty (60) days before the expiration of the applicable Subscription Term.
Termination of this Addendum
Termination for Cause. Either party may terminate this Addendum by notice to the other party if (a) the other party materially breaches this Addendum and does not cure the breach within thirty (30) days after written notice.
Additional Termination Rights. n addition to the termination rights under section 8.2.1, we may also terminate this Addendum immediately upon notice to you: a) if our relationship with a third-party partner who provides software or other technology we use to provide the Rancher Hosted Services expires, terminates or requires us to change the way we provide the software or other technology as part of the Rancher Hosted Services, or c) in order to comply with the law or requests of governmental entities.
Effect of Termination.
8.1. General. The provisions of this Section 8 apply only to the Rancher Hosted Services described in this Addendum. You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any losses arising out of or relating to any third-party claim arising out of: (a) your or any of your End Users’ use of the Rancher Hosted Services (including any activities under your Rancher Hosted Services account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by you, your End Users or your CPE; or © a dispute between you and any End User. You will reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to any third party subpoena or other compulsory legal order or process associated with third party claims described in (a) through © above at our then-current hourly rates.
Limitations on Liability.
IN ADDITION TO THE LIMITATIONS FOUND IN SECTION 8 OF THE AGREEMENT, AND WITH RESPECT TO THE RANCHER HOSTED SERVICES, RANCHER AND ITS AFFILIATES WILL NOT BE LIABLE TO YOU FOR OR BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SERVICE LEVEL AGREEMENTS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; © ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA.
This Acceptable Use Policy (this “Policy”) describes prohibited uses of the Rancher Hosted Services. The examples described in this Policy are not exhaustive. We may modify this Policy at any time by giving you thirty days written notice. If you violate the Policy or authorize or help others to do so, we may suspend or terminate your use of the Services.
No Illegal, Harmful, or Offensive Use or Content
Generally. You may not use, or encourage, promote, facilitate or instruct others to use, the Services or the Rancher Site for any illegal, harmful, fraudulent, or infringing, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, fraudulent, or infringing. Prohibited activities or content include:
Illegal, Harmful or Fraudulent Activities. Any activities that are illegal, that violate the rights of others, or that may be harmful to others, our operations or reputation, including disseminating, promoting or facilitating child pornography, offering or disseminating fraudulent goods, services, schemes, or promotions, make-money-fast schemes, ponzi and pyramid schemes, phishing, or pharming.
Infringing Content. Content that infringes or misappropriates the intellectual property or proprietary rights of others.
Offensive Content. Content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable.
Harmful Content.Content or other computer technology that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, or data, including viruses, Trojan horses, worms, time bombs, or cancelbots.
No Security Violations
Generally.. You may not use the Services to violate the security or integrity of any network, computer or communications system, software application, or network or computing device (each, a “System”). Prohibited activities include:
Unauthorized Access. Accessing or using any System without permission, including attempting to probe, scan, or test the vulnerability of a System or to breach any security or authentication measures used by a System.
Interception. Monitoring of data or traffic on a System without permission.
Falsification of Origin. Forging TCP-IP packet headers, e-mail headers, or any part of a message describing its origin or route. The legitimate use of aliases and anonymous remailers is not prohibited by this provision.
No Network Abuse
Generally. You may not make network connections to any users, hosts, or networks unless you have permission to communicate with them. Prohibited activities include:
Monitoring or Crawling. Monitoring or crawling of a System that impairs or disrupts the System being monitored or crawled.
Denial of Service (DoS). Inundating a target with communications requests so the target either cannot respond to legitimate traffic or responds so slowly that it becomes ineffective.
Intentional Interference. Interfering with the proper functioning of any System, including any deliberate attempt to overload a system by mail bombing, news bombing, broadcast attacks, or flooding techniques.
Operation of Certain Network Services. Operating network services like open proxies, open mail relays, or open recursive domain name servers.
Avoiding System Restrictions. Using manual or electronic means to avoid any use limitations placed on a System, such as access and storage restrictions.
Our Monitoring and Enforcement
We reserve the right, but do not assume the obligation, to investigate any violation of this Policy or misuse of the Services. We may: a) investigate violations of this Policy or misuse of the Services or b) remove, disable access to, or modify any content or resource that violates this Policy or any other agreement we have with you for use of the Services.
This Service Level Agreement (“SLA”) is a policy governing the use of the Rancher Hosted Services and applies separately to each instance of the Rancher Hosted Services purchased on an Order Form. In the event of a conflict between the terms of this SLA and the terms of the Rancher Enterprise Agreement or other agreement with Rancher governing your use of our Services, the terms and conditions of this SLA apply, but only to the extent of such conflict. Capitalized terms used herein but not defined herein shall have the meanings set forth in the Agreement.
Rancher will use commercially reasonable efforts to make the Rancher Hosted Services available with a Monthly Uptime Percentage of at least 99.90% during any month as defined below (the “Service Commitment”). Monthly Minutes are calculated by multiplying the number of days in a calendar month by 1,440. Monthly Uptime Minutes are calculated by multiplying the Monthly Minutes, less the scheduled maintenance window minutes and any other exclusions as defined in Section 4, by 99.90%. Actual Monthly Uptime Minutes are calculated according to the terms of Section 3.
Monthly Uptime Measurement
The Parties agree Rancher will measure up-time using a third party, up-time monitoring system. Data points will be collected at least once a minute. The endpoint for the Customer’s Rancher installation will be queried and must respond within 5 seconds with an HTTP 200 return code to be considered within the SLA. No response, non-HTTP 200 return code, or a response longer than 5 seconds will be considered downtime. This will be the only measurement for Rancher compliance with the Service Commitment. All minutes qualifying under this section will be counted in the Actual Monthly Uptime Minutes.
Service Level Credit Details
The Service Level Credit will be calculated on a monthly basis. In the event that Rancher fails to meet the Service Commitment, Rancher Labs will credit to the Customer an amount calculated as follows: For the Service Level Credit the Effective Monthly Fees will mean: the yearly fees paid for the Rancher Hosted Services and corresponding Rancher Support Services divided by twelve. The Service Level Credit will be calculated as follows: The Effective Monthly Fees divided by Monthly Uptime Minutes (the “Per Minute Credit”) multiplied by the Monthly Uptime Minutes minus the Actual Monthly Uptime Minutes (the Service Commitment Default Minutes). For illustrative purposes, if the Monthly Uptime Minutes were 42,897 and the total number of Actual Monthly Uptime Minutes were 41,000, and the Effective Monthly Fees were $8,333.33, the Service Level Credit would be calculated as follows: Per Minute Credit X Service Commitment Default Minutes or (8,333.33 ÷ 42,897) X (42,897 - 41,100). In no case will the Service Level Credit exceed the amount of fees (calculated on a monthly basis) the Customer paid for the Rancher Hosted Services.
Service Level Credit Limits and Payment
Service Level Credits will not entitle the Customer to any refund or other payment from Rancher. A Service Level Credit will be applicable and issued only if the credit amount for the applicable monthly billing cycle is greater than one hundred dollars ($100 USD). Service Level Credits may not be transferred or applied to any other account. Unless otherwise provided in the Agreement, the Customer’s sole and exclusive remedy for any unavailability or non-performance or other failure by Rancher to provide Rancher Hosted Services is the receipt of a Service Level Credit in accordance with the terms of this SLA.
Service Level Credit Requests