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SambaStack Hosted Terms of Service

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT FOR AN ENTITY, SUCH AS THE COMPANY YOU WORK FOR, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO SIGN FOR AND BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT.

This SambaStack Hosted – Terms of Service (“Agreement”) is entered into by SambaNova Systems, Inc., a Delaware corporation, with offices at 71 Daggett Drive, San Jose, California, 95134, United States (“SambaNova”, “us” or “we”), and the entity or person agreeing to these terms (“Customer” or “you”). This Agreement includes any attachments, addenda or exhibits referenced in the Agreement, and any Order Forms that reference this Agreement, and governs your access to and use of the Services. The “Effective Date” of this Agreement is the date of the first Order Form referencing this Agreement.

We may modify this Agreement from time to time. Unless otherwise specified by us, such changes become effective for you upon renewal of a Subscription Term or entry into a new Order Form, which renewal or Order Form may require you to accept or otherwise agree to the most recent version of this Agreement.

1. USE OF SERVICE

1.1. Service Provision and Access; Client Software. We will make the Service available to you for the Subscription Term solely for use by Customer, including its authorized Users, in accordance with this Agreement, the Documentation, and the Order Form. Any use of the Service by a User must be solely for the benefit of Customer, and Customer shall be responsible for each User’s compliance with this Agreement.

1.2. Compliance with Applicable Laws. As a generally available cloud compute service, we will provide the Services in accordance with our obligations under laws and government regulations applicable to our Services generally, and without regard to your specific and particular use of the Services.

1.3. General Restrictions. Customer, including any User, will not (and will not permit any third party to): (a) copy, modify, or create a derivative work of the Services; (b) reverse engineer, disassemble or decompile any Service or otherwise seek to obtain the source code of any software included in the Service (except to the extent such restriction is prohibited by applicable law); (c) sell, resell, rent, sublicense, transfer or otherwise make available any Service to a third party or in a service bureau or outsourcing offering; (d) remove or obscure any proprietary or other notices contained in any Service; or (e) use the Services in violation of the EULA.

2. CUSTOMER CONTENT

2.1. Customer Content. As between the parties, Customer or its licensors retain all right, title and interest in and to the Customer Content. You will ensure that Customer Content and its use in our Services do not violate any applicable law. Subject to the terms of this Agreement, you hereby grant to SambaNova and its Affiliates a non-exclusive, worldwide, royalty-free right to process the Customer Content solely to the extent necessary to provide the Services to you or as may be required by law. You represent and warrant to us that you have all rights in Customer Content necessary to grant the rights contemplated herein.

2.2. Customer is responsible for any consents and notices required to permit Customer’s use and receipt of the Services and our accessing, storing and processing of any content or data provided by you under this Agreement.

3. FEES & PAYMENT; TAXES

3.1. Fees & Payment. All Fees and payment terms are as set forth herein or in the applicable Order Form. Except as expressly set forth in this Agreement, all payment obligations are non-cancelable, and Fees are non-refundable. Any purchase orders issued by you are for your internal purposes only, and SambaNova rejects any such purchase orders. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until fully paid. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by us in collecting any delinquent amounts.

3.2. Taxes. Fees do not include Taxes. Customer is responsible for paying all Taxes associated with its purchases, and will pay SambaNova for Services without any reduction for Taxes. If SambaNova is obligated to pay or collect Taxes, the Taxes will be invoiced to Customer and Customer will pay such Taxes, unless Customer provides SambaNova with a timely and valid tax exemption certificate. If required under applicable law, Customer will provide SambaNova with applicable tax identification information to ensure its compliance with applicable laws and regulations.

4. TERM; TERMINATION; SUSPENSION

4.1. Term of Agreement. The “Term” of this Agreement begins on the Effective Date and will remain in effect until terminated in accordance with the terms herein. If there is no Order Form in effect, either party may terminate this Agreement upon written notice to the other party. Each Order Form will terminate upon expiration of the applicable Subscription Term, unless expressly stated otherwise in the Order Form or this Agreement.

4.2. Term of Order Form. The initial term of an Order Form begins on its subscription start date, as indicated in the Order Form, and ends on the last day of the subscription duration. An Order Form will automatically renew for subsequent terms equal to the original subscription duration unless either party notifies the other in writing of its intent not to renew at least 60 days prior to the expiration of the then current term. If Customer does not provide 60 days notice, then they will be responsible to pay the full Fees for the subsequent term.

4.3. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay Fees) within 30 days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party and is not dismissed within 60 days.

4.4. Effect of Termination. Upon termination or expiration of this Agreement or an applicable Order Form, (a) all rights and access to the Services shall cease and terminate, and (b) all Fees owed by you to SambaNova are immediately due upon receipt of the final invoice by Customer.

4.5. Survival. The following Sections will survive any expiration or termination of this Agreement: 1.3 (General Restrictions), 3 (Fees & Payment; Taxes), 4 (Term & Termination), 5 (Intellectual Property), 6 (Confidential Information), 7.2 (Disclaimer), 9 (Indemnification), 10 (Limitation of Liability), 11 (General Terms), and 12 (Definitions).

4.6. Suspension of Service. We may suspend provision of Services if (a) you are 30 days or more overdue on a payment, (b) we deem such suspension necessary as a result of your breach of the terms of this Agreement, (c) we reasonably determine suspension is necessary to avoid material harm to us or our other customers, or (d) such action is required by law or at the request of governmental entities.

5. INTELLECTUAL PROPERTY

5.1. SambaNova Technology. Except for the express limited rights set forth in this Agreement, no right, title or interest in any SambaNova intellectual property is granted to Customer, implied or otherwise. Customer acknowledges that the Services are offered as an online, hosted solution, and that Customer has no right to obtain a copy of the underlying computer code for any Service. We appreciate your feedback on our services, and if you provide any feedback or suggestions to us, we may use such feedback and suggestions without restriction or obligation to you.

5.2. Service Usage Data. We may collect and use query logs, and any data (but not Customer Content) relating to the operation, support and/or use of the Services (“Service Usage Data”) to provide administration services, develop, improve, support, and operate our products and services, or to investigate fraud, abuse or violations of this Agreement.

6. CONFIDENTIAL INFORMATION

Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the other party (“Disclosing Party”) for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party shall, to the extent legally permitted, provide Disclosing Party with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such violative disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to any other remedies available at law.

7. REPRESENTATIONS & WARRANTIES

7.1. Mutual Representations & Warranties. Each party represents and warrants that (a) it has validly entered into this Agreement and has the legal power to do so; and (b) it will comply with all laws and regulations applicable to its provision, receipt, or use of the Services, as applicable.

7.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SAMBANOVA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ERROR-FREE OR UNINTERRUPTED USE OF THE SERVICES.

8. SUPPORT

During a Subscription Term, we will provide Customer the level of support for the Service specified as per Exhibit A.

9. INDEMNIFICATION

9.1. SambaNova Indemnification Obligations. We will defend Customer against any third party claim alleging that any Service, when used in accordance with this Agreement and the Documentation, infringes any intellectual property right of such third party, and will indemnify and hold harmless Customer from and against any damages and costs (including reasonable attorneys’ fees) resulting from such claim, except where such claim, damages or costs are based upon, or result from, Customer Content or Customer specifications and requirements. If Customer’s use of the Service results or may result in an infringement claim, we may either: (a) substitute similar products or services; (b) procure for Customer the right to continue using the Service; or if we believe that (a) and (b) are not commercially reasonable, (c) terminate this Agreement, or the applicable Order Form and refund to Customer any unused Fees that Customer has pre-paid for the applicable Service. This section states the Customer’s sole and exclusive remedy under this Agreement for any third-party allegations of infringement of intellectual property rights.

9.2. Customer Indemnification Obligations. Customer will defend SambaNova against any third party claim arising from or relating to any Customer Content or Customer specifications and requirements used in connection with the Service and any breach by Customer of the terms of this Agreement, and will indemnify and hold harmless SambaNova from and against any damages and costs (including reasonable attorneys’ fees) resulting from such claim.

9.3. Indemnification Procedures. In the event of a potential indemnity obligation under this Section 9, the indemnified party will: (a) promptly notify the indemnifying party in writing of the claim; (b) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense; and (c) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party’s prior written consent.

10. LIMITATION OF LIABILITY

10.1 EXCEPT AS TO “EXCLUDED CLAIMS” (DEFINED IN SECTION 10.2), TO THE MAXIMUM EXTENT PERMITTED BY LAW: (A) NEITHER PARTY NOR ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES OF ANY KIND, OR LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR LOST PROFITS, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE; (B) EACH PARTY’S AND ITS AFFILIATES’ TOTAL AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO SAMBANOVA DURING THE 12 MONTH PERIOD BEFORE THE EVENT GIVING RISE TO LIABILITY AND; (C) THIS SECTION 10 WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.

10.2 EXCLUDED CLAIMS. NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS EITHER PARTY’S LIABILITY FOR FRAUD OR FRAUDULENT MISREPRESENTATION; BREACH OF ITS PAYMENT, CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS HEREIN; INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; OR MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW (“EXCLUDED CLAIMS”).

11. GENERAL TERMS

11.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in its entirety in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities to such party’s successor; and SambaNova may assign this Agreement in its entirety to any Affiliate. Each party shall promptly provide notice of any such assignment. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void.

11.2. Severability. If any provision of this Agreement is deemed to be unenforceable or invalid, the rest of the Agreement will remain in effect.

11.3. Governing Law; Jurisdiction and Venue. This Agreement will be governed by California law, without regard to conflicts of laws provisions thereof. The jurisdiction and venue for litigation related to the subject matter hereof will be the state and federal courts located in Santa Clara County, California and both parties hereby submit to the personal jurisdiction of such courts.

11.4. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth in this Agreement or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee: (a) if given by hand, immediately upon receipt; (b) if given by overnight courier service, the first business day following dispatch; (c) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail; or (d) if given by email, immediately upon receipt. Notwithstanding the foregoing, except for notices pertaining to non-payment and except as otherwise expressly permitted in this Agreement or in an Order Form, notices related to termination of this Agreement or any claims (including without limitation breach, warranty or indemnity) may not be given via email.

11.5. Amendments; Waivers. No supplement, modification, or amendment of this Agreement will be binding unless executed in writing by a duly authorized representative of each party to this Agreement, except as otherwise expressly set forth in this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative of the party providing the waiver.

11.6. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.

11.7. Third Party Beneficiaries. There are no third-party beneficiaries under this Agreement.

11.8. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) if the delay or failure results from any cause beyond such party’s reasonable control, including but not limited to acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, public health emergencies pandemics and epidemics), acts or orders of government, acts of terrorism, or war.

11.9. Independent Contractors. The parties to this Agreement are independent contractors. No agency, partnership, or joint venture is created between the parties under this Agreement.

11.10. Export Control. Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer will not (and will not permit any third parties to) access or use any Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to any Service any information that is controlled under the U.S. International Traffic in Arms Regulations.

11.11. Sub-Processors. The Customer grants a general authorisation to SambaNova to appoint other members of the SambaNova Group as sub-processors and to appoint third party data centre operators, providers of information technology tools, and outsourced service providers as sub-processors to support the performance and delivery of the Service.

SambaNova will maintain a list of relevant subprocessors, a list of which will be provided upon Customer's written request.

12. DEFINITIONS

Terms not otherwise defined in this Agreement shall have the following meanings:

“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with a party.

“Confidential Information” shall mean all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. All Customer Content will be deemed Confidential Information of Customer without any marking or further designation. All SambaNova Technology will be deemed Confidential Information of SambaNova without any marking or further designation. Confidential Information shall not include information that the Receiving Party can demonstrate: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the Receiving Party who had no access to such information.

“Customer Content” means software, data, text, audio, video or images that you or any User transfers to us for processing, storage or hosting by the Services and any computational results that you or your Users derive from the foregoing through their use of the Services.

“Documentation” means our technical documentation for the applicable Service.

“EULA” means SambaNova’s End User License Agreement, made available at https://sambanova.ai/software-end-user-license-agreement .

“Fees” means the fees payable by Customer for the applicable Service, as set forth in an Order Form.

“Order Form” means the SambaNova ordering document (and/or an SOW, if applicable) executed by the parties, which specifies the Services being provided by us and is governed by this Agreement.

“Service” means a SambaNova software-as-a-service offering made generally available and ordered by Customer as set forth in an Order Form.

“Subscription Term” means the set time period designated on an Order Form for the provision of a Service.

“Taxes” means taxes, levies, duties or similar governmental assessments of any nature, including, for example, any sales, use, GST, value-added, withholding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction, but excluding any taxes based on net income, property, or employees of SambaNova.

“User” means the persons designated and granted access to the Service by or on behalf of Customer.

EXHIBIT A

SAMBASTACK SUPPORT SCHEDULE

SambaStack - Hosted  - Enterprise Support

As part of the onboarding process the customer will be provided access to the SambaNova Developer Community as well as the SambaNova Support Cloud, knowledge base, and support telephone number. SambaNova will provide training to the end user and operations staff upon request, as well as written documentation of how to interact with SambaNova support. Additionally, the personnel will be shown how to raise a service call with SambaNova’s support team via the SambaNova Support Cloud (preferred), email or telephone. SambaNova’s  Hosted Enterprise Service Level Agreement (“SLA”) incorporated herein can be found as Attachment 1 of this Schedule.

Before opening a case, the customer can check to see if the answer to the question is in the SambaNova Developer Community or the SambaNova Support Cloud knowledge base. The knowledge base streamlines access to information and provides answers to common questions and describes how to resolve problems quickly and efficiently. If the customer encounters an issue that cannot be resolved, however, the customer should then open a support case online in the support portal, by email or by calling SambaNova’s dedicated support hotline. We recommend reviewing the article “Support Case Customer Data Collection Requirements” before submitting the case as that explains the information the customer should provide when creating the ticket and ensures our support expert has the information that is required to assist.

SambaStack - Hosted  - BYOC Support

All the offerings of your support tier plus specific support for the onboarding and maintenance of  the checkpoints provided to us.

SambaStack - Hosted  - Enterprise Support Interactions

Support Case Information

Once a support case is opened, the information that the customer provides will allow the case to be routed to the appropriate support expert that can quickly find a solution, as set forth in  the SLA, attached as Attachment 1 . Some of the information that the customer will be asked to enter includes:

  • Product
  • Problem Description
  • Priority
    • P1: Critical Service Disruption: A critical issue causing significant disruption to business operations, resulting in complete loss of service or severe impact on functionality.
    • P2: Significant Service Impairment: A major issue causing substantial impairment to business operations, resulting in partial loss of service or considerable impact on functionality.
    • P3: Moderate Service Issue (default): A moderate issue or technical question that may or may not be causing some disruption to business operations, but with no impact on overall functionality.
    • P4: Feature Request or Enhancement: A request for a new feature, enhancement, or improvement to an existing product or service.
    • P5: General Inquiry or Information Request: A non-technical inquiry or request for information, such as billing, licensing, or general product information.

ATTACHMENT 1

SambaStack - Hosted  Enterprise Service Level Agreement (SLA)

The Service Level Agreement (SLA) provided by SambaStack is initially provided at its standard level, which includes the following:

  • Support Hours: 24x7
  • Initial response times:
    • P1: 2 hours
    • P2: 3 hours
    • P3: 4 hours
    • P4: 24 hours
    • P5: 24 hours

Collaboration and Escalation

SambaNova commits to working in a collaborative fashion with the customer to answer any question and solve any problems. To accomplish this collaboration, SambaNova requires the customer to commit the case contact within the organization to respond to questions, diagnostic data requests, and solutions within a timely manner. Any Case without a customer response, with the status of "Solution Offered" or "Pending Customer", in over 3 of your organization's working days will be slated for automatic closure unless additional time has been previously discussed.  Escalations may be directed to the customer’s regional lead.

Alternative Support Communication Methods

Slack

SambaNova can offer Enterprise  and BYOC customers a dedicated Slack channel hosted by SambaNova via Slack Connect. This channel will be staffed by SamabaNova support team members as well as representatives from the account and engineering teams. The SLAs for the slack channel are the same as other support methods.