Metallic’s SaaS Solution is the “easy button” for cost-effective, secure and scalable data management, backup and security, within a single command center, allowing organizations to deliver on data protection strategies.
Built with layered, air-gapped cloud security, secure and restrictive account access and data isolation, Metallic’s SaaS Solution provides ease you can trust.
Revised January 6, 2022
1. Customer’s Account and License
1.1 Getting Started. As a Customer you will register a Commvault account and provide Commvault with accurate and complete information (the “Customer Account”). Customers may authorize one or more of its employees, consultants, vendors or agents (collectively, “Authorized Users”) to access and use Commvault’s products and services (the “SaaS Solution”) on Customer’s behalf. Each Authorized User will establish or be provided a username and password, and may also establish or be provided other access credentials, such as an encryption key (the “Access Credentials”). Customer acknowledges that its Authorized Users have full access to and management privileges of its Customer Account(s) and Customer Data.
1.3 Trial Services. Commvault may provide Customers with a thirty (30)-day free trial of the SaaS Solution for non-production purposes (a “Trial Account”). Commvault is under no obligation to retain Customer Data during the trial period. Commvault may deactivate the Trial Account upon written notice. The Trial Account and related SaaS Solution are provided “as is” and without representation, warranty, liability or indemnification obligations.
1.5 Intellectual Property. Commvault delivers great value to its Customers through its intellectual property. Customer agrees that Commvault-owned hardware, software, code, trademarks, trade secrets, proprietary methods and systems used to provide the SaaS Solution (collectively, the “Commvault Technology”) and the content made available or displayed by Commvault through the SaaS Solution, including all text, graphics, images, trade names, service marks, product names, and the look and feel of the SaaS Solution (collectively, the “Commvault Content”) are owned by or licensed to Commvault. Other than the authorizations or licenses granted by Commvault to Customer in these Terms, no assignment or other transfer of ownership shall be conferred or vest in and to the Commvault Technology or the Commvault Content to Customer, either expressly, or by implication, estoppel, or otherwise.
2. Global Availability and Support
2.1 Global Service and Support. Commvault is proud to administer the SaaS Solution from global geographic locations that best suit our Customers’ needs. Where applicable and subject to data center availability, Customer Data will be backed up to a data center located in Customer’s country of origin, or in a geographic location selected by Customer. For additional information, refer to the SaaS Solution configuration portal. Commvault is pleased to provide Customers with the support program for the SaaS Solution as set forth at https://metallic.io/support. The support terms are incorporated by reference and may be modified from time to time in Commvault’s sole discretion.
2.2 Global Availability. The SaaS Solution are available at least 99.9% of the time measured on a monthly basis (“Uptime”). The Uptime does not apply to any downtime due to: (i) any emergency or planned maintenance, repair, or upgrade; (ii) issues or failures with Customer’s or its service providers’ services, applications, software, hardware or other components not supplied by Commvault; (iii) third-party attacks, intrusions, distributed denial of service attacks or force majeure events, including those at Customer’s site or between Customer’s site and data centers made available through the SaaS Solution; or (iv) Customer’s acts or omissions in violation of these Terms. In the event of Commvault’s Uptime failure, Commvault shall: (i) use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the Uptime failure; and (ii) provide Customer with a credit as set forth in the table below (a “Service Credit”), provided such Service Credit is approved by Commvault, such approval not to be unreasonably withheld. Within thirty (30) days of the downtime incident, Customer must submit a Service Credit claim to Commvault with all information necessary for Commvault to validate such claim, including: (i) a detailed description of the incident; (ii) information regarding the time and duration of the downtime; and (iii) a description of the attempts to resolve the incident. Service Credits will be applied to Customer’s next invoice. Customer is not eligible for any Service Credits if Customer’s use of the SaaS Solution is free of charge. This is Customer’s sole and exclusive remedy for any Uptime failure.
|SaaS Solution Availability||Service Credit|
|Less than 99.9%||10%|
|Less than 99%||25%|
2.3 Hosted Services. To the extent Customer uses Commvault’s hosted storage, Customer acknowledges that such hosted storage is provided by Microsoft Azure Cloud Computing Services or, if applicable, Microsoft Azure for US Government. Customer’s use of hosted storage services is subject to the then-current Microsoft Online Subscription Agreement(s), entered into by and between Commvault and Microsoft which are available at the following links: Azure and Azure for Government. To the extent Customer uses its own hosted storage provider, the terms of such hosted storage provider shall govern. Customer is solely responsible for the retention policies and any other policy settings, schedules, and configurable parameters applied to Customer Data, including implementing its own specific retention policies.
3. Activation, Fees and Termination
3.1 Activation. Commvault initiates activation of the SaaS Solution upon receipt of a valid purchase order, by providing Customer with access to an account (the “Activation Date”). The term of Customer’s subscription to the SaaS Solution shall begin on the Activation Date and continue as set forth on the applicable purchase order (the “Term”). The Term shall renew for an equal Term unless either party provides written notice of non-renewal sixty (60) days prior to the renewal date.
3.2 Fees. Customer shall pay the Fees set forth in the applicable purchase order, or as otherwise agreed. Fees are invoiced in arrears on the last day of the applicable period following the Activation Date, unless otherwise agreed. Professional services, if any, may be subject to additional terms and fees. If Customer’s use of the SaaS Solution exceeds its subscription, Customer shall be obligated to pay Commvault for exceeded usage, and upgrade Customer’s subscription to reflect its actual use. Upon expiration of the initial Term, Commvault may increase its Fees upon thirty (30) days’ notice. Fees are exclusive of any value added or other applicable taxes, and any such applicable taxes will be added to Customer’s invoice(s) for which Customer is solely responsible. If Customer purchases the SaaS Solution through a third-party service provider or reseller, all fees and payment terms shall be as agreed exclusively between Customer and such third-party service provider or reseller. Customer shall pay all undisputed invoices within thirty (30) days of the invoice date without offset or deduction. Any payment disputes must be disputed in writing within thirty (30) days of the invoice date. Any portion of the Fees that are not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
3.3 Termination. Commvault may, upon reasonable notice as appropriate, suspend or terminate Customer’s access to the SaaS Solution, in whole or in part, for the following reasons: (i) a threat to the security or integrity of the SaaS Solution, including if any registration information is inaccurate or incomplete, or if Customer or any of its Authorized Users fail to maintain the security of any Access Credentials; (ii) Customer has materially breached these Terms; or (iii) any amount due under these Terms is not received by Commvault within fifteen (15) days after it was due. Either party may terminate these Terms immediately if the other party materially breaches its obligations hereunder, and such breach remains uncured for thirty (30) days following written notice to the breaching party. These Terms shall terminate immediately, upon written notice, where: (i) either party is declared insolvent or adjudged bankrupt by a court of competent jurisdiction; or (ii) a petition for bankruptcy or reorganization or an arrangement with creditors is filed by or against that party and is not dismissed within sixty (60) days. Fees shall continue to accrue during suspension.
3.4 Effect of Termination. Customer is responsible for preserving its Customer Data upon termination or expiration of these Terms. In the event of termination or expiration of these Terms: (i) all rights and licenses to the SaaS Solution shall immediately cease; (ii) Customer shall promptly pay Commvault any Fees due and payable through the date of termination; and (iii) Commvault may delete Customer Data sixty (60) days following such termination or expiration. Customer must promptly notify Commvault before the expiration of such sixty (60) day period and pay the then-current fees to extract its Customer Data.
4. Data Privacy & Security
4.2 Access. Commvault values the sanctity of your data, so we tightly restrict access. At times, Commvault may be required to access or disclose Customer Data: (i) to provision the SaaS Solution to Customer pursuant to these Terms; (ii) to respond to a validly issued subpoena, an investigative demand or warrant; (iii) to investigate or prevent security threats, fraud, or other illegal, malicious, or inappropriate activity; (iv) to enforce or protect Commvault’s rights and properties or those of its affiliates or subsidiaries; or (v) with the informed consent of the data subject. In the event Commvault is required to access Customer Data, Commvault shall not disclose Customer Data to third parties without Customer’s consent or instruction, unless prohibited by law.
4.3 Customer Use. Customer is responsible for ensuring that Customer maintains and operates the information technology infrastructure from which the SaaS Solution copies, maintains, and transfers the Customer Data including databases, applications, files, software, computers, servers, or any other device registered with Commvault (collectively, the “Customer Environment”) and Customers’ and its Authorized Users’ use of the SaaS Solution shall not: (i) interfere with the proper working of the SaaS Solution or impose an unreasonably large load on Commvault’s infrastructure; (ii) modify, disassemble, decompile or reverse engineer any part of the SaaS Solution or apply any other process or procedure to derive source code of any software included in the SaaS Solution; (iii) give rise to civil or criminal liability; (iv) violate or infringe upon any third-party right, including any intellectual property right or right of privacy; (v) initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs; (vi) use the SaaS Solution in order to build a similar or competitive application or service; or (vii) violate any applicable laws.
5. Warranty and Acknowledgments
5.1. Commvault Warranty. Commvault warrants that the SaaS Solution shall be provisioned in a diligent, prompt and professional manner by personnel with the requisite knowledge, skills expertise and training. Commvault further warrants that it will comply with applicable law and the SaaS Solution do not knowingly infringe upon any third-party’s intellectual property rights. The SaaS Solution are provided “as is” without representation or warranty, whether express, implied or statutory. Commvault specifically disclaims any implied warranties of merchantability, fitness for a particular purpose, non-infringement, title and quiet enjoyment or from a course of dealing, course of performance or usage in trade. Commvault does not warrant that the SaaS Solution will run properly in all IT environments, be error-free, meet Customer’s needs or requirements, or guarantee compliance with specific law.
5.2 Customer Acknowledgments. Customer agrees: (i) Customer and its Authorized Users will keep Access Credentials confidential, and Customer remains responsible for the acts and omissions of its Authorized Users and any activity that occurs under its Customer Account(s) using the Access Credentials; (ii) Customer will use the most current version of the SaaS Solution at all times, unless otherwise agreed in writing; (iii) Customer is responsible for the security of its Customer Data if Customer disables any encryption or other security feature within the SaaS Solution; and (iv) Customer is responsible for maintaining its own internet and data connections, and components of the SaaS Solution that are accessed or used through internet connections and may be subject to Customers’ internet service providers fees and downtime. Customer acknowledges Customer Data may not be available if: (i) Customer’s initial backup and replication is not properly completed by Customer; (ii) Customer deletes Customer Data and does not restore it after deletion pursuant to Customer’s data retention policies; (iii) Customer chooses incorrect or inappropriate retention policies within the SaaS Solution; (iv) Customer’s IT environment is unable to make a connection with Commvault’s servers or network; or (v) Customer fails to follow Commvault’s technical requirements and the Documentation for utilizing the SaaS Solution, including installing updates, or failing to periodically test Customer’s backups and restores, or ensure that Customer Data is protected and not otherwise corrupted.
6. Limitation of Liability, Indemnification and Remedies
6.1 Commvault Intellectual Property Indemnification. Commvault is proud of the Solution it builds and take seriously the protection of our Customers’ intellectual property and data. Commvault will indemnify, defend and hold Customer harmless against third-party claims that Commvault’s proprietary technology or intellectual property within the SaaS Solution infringes any validly issued patent, trademark or copyright, provided Customer shall give Commvault prompt, written notice of any such claim and Commvault shall have the authority to control the defense and settlement of the claim with counsel of its choice. Notwithstanding the foregoing, Commvault shall have no liability for any claim arising from: (i) any modification to the SaaS Solution other than by Commvault; (ii) use of an outdated or discontinued version of the SaaS Solution; (iii) use of the SaaS Solution in combination with any products or services not provided or authorized by Commvault; (iv) use of the SaaS Solution in violation of these Terms; (v) Commvault’s compliance with Customer’s designs, specifications, or instructions; or (vi) any claim for which Customer is obligated to indemnify Commvault. In the event the SaaS Solution or any portion, becomes, or, in Commvault’s opinion, is likely to become, subject to a claim of infringement of a third-party’s intellectual property rights, Commvault may, in its sole discretion: (i) procure for Customer the right to continue use of the SaaS Solution; (ii) replace or modify the SaaS Solution with a version that does not infringe; or (iii) if Commvault cannot accomplish (i) or (ii) using commercially reasonable efforts, terminate these Terms and the applicable purchase order.
6.2 Commvault Data Privacy and Security Indemnification. We exist in an ever-evolving data security threat landscape. The SaaS Solution accesses and transfers information over the internet, and Commvault does not operate or control the internet. Viruses, worms, trojan horses and other undesirable data or components or unauthorized users (e.g., hackers) may attempt to obtain access to and damage Customer Data, devices and networks. Commvault is not responsible for any such activities. Just as our Customers work diligently to protect against data security threats, Commvault is continuously advancing its privacy and security program, posture and vigilance to protect Customers’ Data. Commvault will indemnify, defend and hold Customer harmless against third-party claims arising out of, or related to, any unauthorized third-party access that results in compromise of Customer Data backed up by the SaaS Solution to the extent such access or compromise was caused by Commvault, provided Customer shall give Commvault prompt written notice of such claim and Commvault shall have the authority to control the defense of the claim by counsel of its choice. In the event Customer seeks indemnification from Commvault pursuant to this provision, Customer’s remedies shall be limited to actual and direct damages, excluding fines. This indemnification is conditioned on Customer partnering with Commvault during any investigation of potential or actual data compromises or breaches, including identification of third-party data security threats and remediation efforts.
6.3 Customer Indemnification. Customer shall indemnify, defend and hold harmless Commvault, its officers, directors, employees and agents, from and against claims, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees), awards, fines, or settlements arising from or relating to Customer’s: (i) misuse of the SaaS Solution, (ii) failure to meet reasonable privacy and security obligations; (iii) misappropriation or infringement of a third-party’s intellectual property rights; or (iv) violation of applicable law or regulation, including without limitation, data protection laws. Customer’s indemnification obligations include claims arising out of the acts or omissions of its employees, customers or end users, any person to whom Customer grants access to the SaaS Solution or its Customer Data, and any person who gains access to the SaaS Solution or its Customer Data other than as a result of Commvault’s actions.
6.4 Limitation. Except as otherwise provided for herein or by applicable law, the aggregate liability of each party for all claims under these Terms is limited to direct damages up to the amount paid for the SaaS Solutions during the twelve (12) months before the cause of action arose; provided, that in no event will a party’s aggregate liability exceed the amount paid for the SaaS Solutions during the Term.
6.5 No Special or Punitive Damages. 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, or loss of business information, even if the party knew they were possible or reasonably foreseeable.
7. General Provisions
7.1 Open Source. Commvault may use open source code to deliver the SaaS Solution to its Customers. For a list of open source in the SaaS Solution, please navigate here.
7.2. Export Controls and Trade Sanctions Compliance. Customer’s use of the SaaS Solution is subject to compliance with U.S. and other applicable export control and trade sanctions laws, rules and regulations, including without limitation, the U.S. Export Administration Regulations, administered by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and U.S. trade sanctions, administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Export Control Laws”). Customer acknowledges that the SaaS Solution may not be available in all jurisdictions and that Customer is solely responsible for complying with applicable Export Control Laws related to the manner in which Customer chooses to use the SaaS Solution, including Customer’s transfer and processing of the Customer Data and the region in which any of the foregoing occur.
7.3 U.S. Government End User Provisions. Commvault provides the SaaS Solution to federal government end users. Government technical data and software rights related to the SaaS Solution include only those rights customarily provided to the public as defined in these Terms. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227‑7015 (Technical Data – Commercial Items) and DFAR 227.7202–3 (Rights in Commercial Computer Software or Computer Software Documentation).
7.4 Third-Party Services. Commvault may use third parties to assist in the provision of the SaaS Solution. As such, the SaaS Solution may include third-party software, applications, platforms, messaging or communication services or API’s, including without limitation Microsoft Azure Cloud Computing Services, (collectively, the “Third-Party Services”). These Third-Party Services are not offered, controlled or provided by Commvault, and may be changed, modified or discontinued by the third-party without notice. Commvault expressly disclaims any and all liability related to, or arising from, the Third-Party Services, including Customer’s use thereof, or any updates, modifications, outages, delivery failures, corruptions, discontinuance of services or termination of Customer Account(s) by the Third-Party Service. Commvault is not responsible or liable for the manner in which Third-Party Services transmits, accesses, processes, stores, uses or provides data to Commvault.
7.5 Publicity. Customer grants Commvault the limited right to use its company name and logo as a reference for marketing and promotional purposes on Commvault’s website and in other public and private communications. If Customer does not wish to grant these limited rights, Customer may opt-out by emailing email@example.com.
7.6 Modifications. Commvault may, from time to time, modify or amend these Terms and the Documentation, or upgrade, update, or discontinue the SaaS Solution to provide ongoing innovation in the form of new services, features and functionality. Upon Commvault’s notification, Customer may be responsible for installation of certain upgrades or updates. In the event of any material modifications, Commvault will notify Customer of such change by emailing the e-mail address associated with its Customer Account or sending a message through the SaaS Solution platform. Any such changes will become effective as of the date set forth on such notification. By continuing to use the SaaS Solution after notification of material changes, Customer agrees that the updated version of the Terms shall apply.
7.7 Assignment. Neither party may assign these Terms, in whole or in part, without the other party’s prior written consent, except in the case of a merger, reorganization, acquisition, consolidation, or sale of all, or substantially all, of its assets. Any attempt to assign these Terms other than as permitted herein will be null and void. If another entity merges with or acquires Commvault, or all, substantially all or a portion of Commvault’s assets, stock or business, Customer agrees that Customer’s encrypted Customer Data may, and Customer consents to, the secure transfer of Customer Data to such successor or assignee, or an affiliate or subsidiary of Commvault. Customer’s right to use the SaaS Solution, including any allotment of customers or end users, shall not extend to acquired entities, in whole or in part, or new entities established as a result of an acquisition. In such event, the Fees set forth in the applicable purchase order shall be adjusted. Without limiting the foregoing, these Terms will inure to the benefit of and bind the parties’ respective successors and permitted assigns.
7.8 Force Majeure. Except for Customer’s obligation to pay Fees, no failure or omission by the parties in the performance of any obligation of these Terms shall be deemed a breach, nor shall it create any liability, provided the party uses reasonable efforts to resume performance hereunder if the same shall arise from any cause or causes beyond the reasonable control of the parties, including, but not limited to the following, acts of God, nature or war; acts, rules, regulations or orders of or issued by any governmental authority; riots, strikes or lockouts; utility or telecommunication failures; pandemics; or failure or outages of third-party service providers.
7.9 Governing Law and Language. Without regard to conflict of law principles, these Terms will be governed by and construed in accordance with the laws of the jurisdiction of Customer’s principal place of business as follows: (i) the State of Delaware for Customers located in the Americas, (ii) the Province of Ontario for Customers located in Canada, (iii) New South Wales, Australia for Customers located in Australia and New Zealand (iv) Singapore for all other Customers located in Asia Pacific, and (v) the Netherlands for all Customers located in other jurisdictions. In the event of a major failure of the SaaS Solution to perform in accordance with the Documentation, Customers located in Australia are entitled to: (i) a replacement or refund, and (ii) compensation for reasonably foreseeable loss or damage. Customers located in Australia are entitled to repair or replacement of the SaaS Solution should it fail to be of acceptable quality and such failure does not amount to a major failure. Any legal action or proceeding arising under these Terms will be brought exclusively in the venue corresponding with the appropriate governing law. For illustrative purposes, the venue for legal action with a Customer located in North America shall be the State of Delaware. The parties irrevocably consent to the personal jurisdiction and venue therein. Customer and Commvault agree to, with respect to these Terms and Customer’s use of the SaaS Solution, and as permitted by applicable law, not participate in, or seek to recover monetary or equitable relief, in any lawsuit filed alleging class, collective or representative claims on a party’s behalf. Customer acknowledges that any translation of the English language version of these Terms or any portion thereof is for convenience only, and the English language version will take precedence over the translation in the event of any conflicts arising from translation.
7.10 Notices. Customer acknowledges that Commvault shall communicate with Customer electronically via the SaaS Solution’s portal or using the e-mail address in the Customer Account. For contractual purposes, Customer consents to receive communications from Commvault in an electronic form and agrees this satisfies any legal requirement of notice delivery. Customer agrees that all notices are considered received by Customer within twenty-four (24) hours of the time posted to Commvault’s website or the time emailed to Customer. Notices to Commvault shall be sent to firstname.lastname@example.org with a copy to email@example.com.