PLEASE READ THESE TERMS AND CONDITIONS
CAREFULLY
:
Sistina_License_Terms_20040121SiDNVR1:60203992.06DNVR1
SISTINA SOFTWARE, INC.
SISTINA SOFTWARE® LICENSE TERMS AND CONDITIONS
THESE SISTINA SOFTWARE LICENSE TERMS AND CONDITIONS (THE “LICENSE TERMS”) SET FORTH THE TERMS AND
CONDITIONS PURSUANT TO WHICH SISTINA SOFTWARE, INC. (“SISTINA”) WILL LICENSE CERTAIN SOFTWARE AND PERFORM
CERTAIN SERVICES FOR YOUR COMPANY (“CUSTOMER”). SISTINA IS WILLING TO LICENSE THE SOFTWARE AND PERFORM THE
SERVICES IDENTIFIED IN THESE LICENSE TERMS ONLY ON THE CONDITION THAT CUSTOMER ACCEPTS ALL OF THE FOLLOWING
TERMS AND CONDITIONS WITHOUT MODIFICATION.
1. General. Based on a separate “Request for Purchase Information” submitted by Customer to Sistina, along with
the customer information confirmed in a separate quote (the “Quote”) that Customer received with these License Terms,
the parties have identified certain Sistina Software® (as defined in Section 2 below) and a number of Nodes (as defined in
Section 2 below) of that Sistina Software to which Customer desires to obtain a license, the price for the number of Nodes
requested by Customer, whether or not Customer desires to obtain maintenance and support services from Sistina and, if so,
the hours of coverage for such support services. Customer hereby acknowledges the accuracy of the information contained
in the Quote. SISTINA HEREBY EXPRESSLY REJECTS ANY MODIFICATIONS TO THESE LICENSE TERMS OR
THE QUOTE, OR ANY INFORMATION CONTAINED THEREIN, INCLUDING, WITHOUT LIMITATION, ANY
ADDITIONAL OR CONTRARY TERMS IN ANY PURCHASE ORDER FROM CUSTOMER. EXCEPT FOR THOSE
TERMS AND CONDITIONS EXPRESSLY ACCEPTED BY SISTINA IN WRITING, ANY PURPORTED
MODIFICATIONS OF OR TERMS CONTRARY TO THOSE SET FORTH HEREIN OR IN THE QUOTE SHALL BE
NULL AND VOID AND WITHOUT FORCE OR EFFECT.
2. License Grant and Restrictions. Subject to these License Terms, Sistina hereby grants to Customer a revocable,
nonexclusive, personal, limited, nontransferable (except as set forth in Section 10 below) license to install, use and execute
the software expressly identified on the Quote (the “Sistina Software”), (a) solely in object code form, (b) solely for
Customer’s internal business purposes, and (c) solely on the number of Nodes set forth on the Quote. A “Node” means a
computer server executing one (1) instance of an operating system. Customer may make one (1) copy of the Sistina
Software, in machine readable form only, solely for non-productive back-up purposes. Customer may make one (1) copy
of the Sistina Software, in machine readable form only, solely for non-productive back-up purposes. All rights not
expressly granted to Customer in this Agreement are reserved by Sistina. Not limiting the foregoing, this Agreement does
not grant Customer any rights to: (i) sublicense or distribute the Sistina Software in whole or in part; (ii) modify, adapt,
translate, rent, lease, create derivative works of or loan the Sistina Software or merge the Sistina Software with any other
software; (iii) disassemble, decompile, or reverse engineer the Sistina Software; (iv) exploit the Sistina Software for any
purpose other than serving the internal needs of Customer’s business; or (v) use the Sistina Software in any way not
expressly provided for in this Agreement.
3. Ownership of Intellectual Property. As between Customer and Sistina, all rights in and to the Sistina Software,
and any additions or modifications arising as of a result of this Agreement, are owned by Sistina, including without
limitation all rights provided under copyright law, trademark law, patent law and trade secret law.
4. Fees; Delivery; Additional Nodes. Customer must pay the license fee (“License Fee”) in the amount and
according to the payment instructions set forth on the Quote. If Sistina has approved Customer to be invoiced, then Sistina
will invoice Customer for the License Fee at the time of execution of the Quote, and payment of the License Fee shall be
due within thirty (30) days of the invoice date. All prices and rates quoted by Sistina are exclusive of any foreign, federal,
state, or local sales, excise, use, or similar taxes. Customer agrees to pay all such taxes, when applicable, regardless of
whether such taxes are originally charged or invoiced by Sistina, or are later levied on Sistina or Customer by a taxing
authority, excluding any taxes levied solely on the net taxable income of Sistina. The Sistina Software will be delivered to
Customer pursuant to Sistina’s standard delivery procedures, which require Customer to download the Sistina Software
with the use of certain license keys provided by Sistina. If Customer desires to license a number of Nodes in excess of the
number set forth on the Quote, then Customer should contact a Sistina sales representative for pricing and other
information, and any use of additional Nodes shall be subject to these License Terms.
5. Support Services. If the Quote indicates that Customer has elected to pay for and receive maintenance and
support from Sistina (“Maintenance and Support Services”), then Sistina shall provide Maintenance and Support
Services subject to these License Terms and the attached Maintenance and Support Terms.
Sistina_License_Terms_20040121 2
6. Term and Termination. These License Terms shall be effective as of Sistina’s receipt of Customer’s acceptance
of these License Terms and the Quote pursuant to the instructions set forth on the Quote and shall continue until terminated
as set forth herein. Sistina may suspend performance or terminate these License Terms immediately upon written notice at
any time if Customer is in material breach these License Terms, including, without limitation, by failing to pay any
amounts when due. Upon termination of these License Terms for any reason: (a) all amounts owed to Sistina prior to such
termination will be immediately due and payable; (b) all rights granted in these License Terms will immediately cease; and
(c) Customer must promptly discontinue all use of the Sistina Software, erase all copies of the Sistina Software from
Customer’s computers, systems and equipment, return to Sistina all copies of the Sistina Software on tangible media in
Customer’s possession and certify in writing to Sistina that Customer has fully complied with these requirements. Sections
1, 3, 6, 7, 8, 9, 11, 12, 13 and 14 will survive expiration or termination of these License Terms for any reason. Customer
acknowledges that, in the event of Customer’s breach of any of the provisions of these License Terms, Sistina will not have
an adequate monetary remedy, and accordingly, in addition to any other remedies available to Sistina in law or equity,
Sistina will be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately
upon request.
7. Inspection; Limitations of Software. Customer hereby authorizes Sistina to enter Customer’s premises in order
to inspect the Sistina Software and Customer’s use thereof in any reasonable manner during regular business hours to verify
Customer’s compliance with the terms of these License Terms. CUSTOMER ACKNOWLEDGES AND
UNDERSTANDS THAT THE SISTINA SOFTWARE CONTAINS INTERNAL RESTRICTIONS ON THE NUMBER
OF NODES ON WHICH THE SISTINA SOFTWARE MAY BE USED AND THAT SISTINA SHALL HAVE NO
LIABILITY FOR ANY DAMAGES, INCLUDING LOST PROFITS AND LOST DATA, RESULTING FROM ANY
ATTEMPT TO USE THE SISTINA SOFTWARE ON A NUMBER OF NODES IN EXCESS OF THE QUANTITY SET
FORTH IN THE QUOTE.
8. Government Users. The Sistina Software has been developed at private expense. If Customer is a branch or
agency of the United States Government or is otherwise subject to the Federal Acquisitions Regulations System, then the
following provisions apply: The Sistina Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101,
consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used
in 48 C.F.R. 12.212, and the Sistina Software is provided to the U.S. Government or controlled entity only as a commercial
end item. Consistent with 48 C.F.R. 12.212 (and 48 C.F.R. 227.7202, if applicable), all U.S. Government users and
controlled entities acquire the Sistina Software with only those rights set forth herein.
9. Confidentiality. The Sistina Software, including its source code, binary code, structure, sequence and
organization, and any other information related thereto, constitute confidential information and valuable trade secrets
(“Confidential Information”) of Sistina. Customer agrees to use the same security measures as it uses to protect its own
confidential technical information, provided that such measures shall be at least reasonable for such purpose. Customer
agrees that, except as directed by Sistina, Customer shall not at any time during or after the term of these License Terms:
(a) disclose any Confidential Information to any third party; (b) permit any third party to examine or make copies of any
reports, documents or electronic data containing Confidential Information; or (c) use any of the Confidential Information
for any reason other than for the purposes of these License Terms. Customer may disclose Confidential Information to
personnel having a need to receive the Confidential Information in the performance of their duties under these License
Terms, provided, however, that Customer shall inform all such personnel of the confidentiality obligations hereunder and
shall use its best efforts to ensure their compliance therewith. If the Confidential Information is required to be disclosed
pursuant to any statute, regulation, order, subpoena or document discovery request, such limited disclosure is permissible
provided that prior written notice of such disclosure is furnished to Sistina as soon as practicable in order to afford Sistina
the opportunity to seek a protective order.
10. Assignment. Customer’s rights under these License Terms may not be transferred, leased, assigned, or
sublicensed except for a transfer of the Sistina Software in its entirety to a successor in interest of Customer’s entire
business who assumes the obligations of these License Terms. Any other purported attempt to transfer, lease, assign, or
sublicense Customer’s rights will be void.
11. Disclaimer of Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE
MAINTENANCE AND SUPPORT TERMS (IF APPLICABLE), SISTINA MAKES NO WARRANTY WHATSOEVER
AS TO THE SOFTWARE OR ANY SERVICES PROVIDED BY SISTINA, WHICH ARE PROVIDED “AS IS.”
SISTINA DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT
LIMITATION, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES, LACK OF
Sistina_License_Terms_20040121 3
NEGLIGENCE, WARRANTIES IMPLIED FROM A COURSE OF DEALING, AND WARRANTIES AS TO ANY
RESULTS TO BE OBTAINED FROM THE SOFTWARE FURNISHED HEREUNDER OR THAT THE OPERATION
OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
12. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT WILL SISTINA BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL,
PUNITIVE OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR ANY
INJURY TO PERSON OR PROPERTY, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS
INFORMATION) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE
SISTINA SOFTWARE, EVEN IF SISTINA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN
NO EVENT WILL SISTINA’S TOTAL AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNTS PAID BY
CUSTOMER HEREUNDER. Some states or jurisdictions do not allow the exclusion or limitation of incidental,
consequential, or special damages, or the exclusion of implied warranties or limitations on how long an implied warranty
may last, so the above limitations may not apply to Customer.
13. Export Responsibilities. As required by U.S. law, Customer represents and warrants that it: (a) understands that
certain of the Maintenance and Support Services and Sistina Software are subject to export controls under the U.S.
Commerce Department’s Export Administration Regulations (“EAR”); (b) is not located in a prohibited destination country
under the EAR or U.S. sanctions regulations (currently Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria); (c) will not
export, re-export, or transfer the Maintenance and Support Services or Sistina Software to any prohibited destination, entity,
or individual without the necessary export license(s) or authorizations(s) from the U.S. Government; (d) will not use or
transfer the Maintenance and Support Services or Sistina Software for use in any sensitive nuclear, chemical or biological
weapons, or missile technology end-uses unless authorized by the U.S. Government by regulation or specific license; (e)
understands and agrees that if it is in the United States and exports or transfers the Maintenance and Support Services or
Sistina Software to eligible end users, it will, as required by EAR Section 741.17(e), submit semi-annual reports to the
Commerce Department’s Bureau of Industry & Security (BIS), which include the name and address (including country) of
each transferee; and (f) understands that countries other than the United States may restrict the import, use, or export of
encryption products and that it shall be solely responsible for compliance with any such import, use, or export restrictions.
14. Miscellaneous. These License Terms and the rights and obligations of the parties with respect to the Sistina
Software will be governed by, and construed in accordance with the laws of the State of North Carolina, USA, without
reference to the choice of law principles thereof. Any disputes relating to these License Terms will be brought solely in
state or federal court in the State of North Carolina, USA, and Customer hereby expressly consents to the venue and
jurisdiction of such courts. These License Terms will not be governed by the United Nations Convention on Contracts for
the International Sale of Goods. If any part of these License Terms is found unenforceable, it will not affect the validity or
enforceability of any other provision of these License Terms. Failure by either party to complain of any act or failure to act
of the other party or to declare the other party in default, irrespective of the duration of such default, will not constitute a
waiver of rights hereunder. These License Terms, together with the Quote and, if applicable, the attached Maintenance and
Support terms, constitute the entire agreement by and between the parties and supercede all prior and contemporaneous oral
and written agreements.
Sistina_License_Terms_20040121 4
ATTACHMENT
Sistina Software Maintenance and Support Services Terms
The Quote indicates whether or not Customer has agreed to pay for and receive Maintenance and Support Services from
Sistina. If the Quote indicates that Customer has elected to receive and pay for such Maintenance and Support Services,
then the following provisions (this “Attachment” or the “Maintenance and Support Terms”) shall be deemed to be
referenced by and incorporated into the License Terms. If the Quote indicates that Customer has not agreed to pay for and
receive Maintenance and Support Services from Sistina, then the following provisions shall not apply. If Customer
subsequently desires to pay for and receive such Maintenance and Support Services from Sistina, then Customer shall
contact Sistina directly and Sistina shall provide Maintenance and Support Services pursuant to these Maintenance and
Support Terms.
In the event of any conflict, ambiguity or inconsistency between this Attachment and the License Terms, the terms and
conditions of the License Terms shall control.
1. DEFINITIONS: for the purposes of these 1.8 “Permanent Fix” means a correction to the
Maintenance and Support Terms, terms with capitalized Sistina Software that removes an Error from the Sistina
initial letters shall have the meanings set forth herein, or, if Software and is of a sufficient quality level to be
not defined herein, the meanings set forth in the License distributed in an Upgrade.
Terms.
1.9 “Service Request” means a request for action to
1.1 “Action Plan” means a plan containing: (a) a correct an Error.
problem statement; (b) a list of key Sistina contacts; (c)
potential actions to be taken; (d) purpose and desired result 1.10 “Sistina Software Maintenance” means the
for each action; and (e) expected completion time. provision of Updates to Customer, pursuant to the
procedure set forth in Paragraph 4.1.
1.2 “Error” means, individually and collectively,
Internal Errors (as defined in Paragraph 1.7) and External 1.11 “Sistina Software Support” means the provision
Errors (as defined in Paragraph 1.5). of services as set forth in Paragraph 5.3.
1.3 “Error Resolution” means the process described 1.12 “Standard Coverage” means the support hours
in Paragraph 5. identified in Schedule 2 attached hereto and is referred to
as 5X12 support.
1.4 “Extended Coverage” means the support hours
identified in Schedule 2 attached hereto and is referred to 1.13 “Support Information” means the specifications,
as 7X24 support. frequently asked questions and other information posted on
the Sistina Web site as updated by Sistina from time to
1.5 “External Error” means a defect in the time in its sole discretion.
environment outside the Sistina Software (e.g., hardware
or third party software) that prevents the Sistina Software 1.14 “System” The hardware and software
from functioning in substantial conformity with the configuration that is listed on Schedule 1 hereto.
specifications, pertaining to the applicable Sistina Software
version, posted on the Sistina Web site, as updated from 1.15 “Temporary Fix” means a temporary correction
time to time by Sistina in its sole discretion. to the Sistina Software that removes an Error from the
Sistina Software.
1.6 “Fix” means either an Update (as defined in
Paragraph 1.16) or a Workaround (as defined in Paragraph 1.16 “Update.” A computer program alteration
1.18). A Fix is not to be confused with recovery, which is (including Temporary Fixes and Permanent Fixes)
the restoration of a system, database or similar capability. designed to be integrated with the Sistina Software to
Recovery is fundamentally an Customer responsibility. correct any Errors therein, but that does not alter the
functionality of the Sistina Software or add new functions
1.7 “Internal Error(s)” means a defect in the Sistina thereto.
Software that prevents it from functioning in substantial
conformity with the specifications, pertaining to the 1.17 “Upgrade.” Any new version of the Sistina
applicable Sistina Software version, posted on the Sistina Software, and any changes or additions other than an
Web site, as updated from time to time by Sistina in its Update, that: (a) can be integrated with the Sistina
sole discretion. Software; (b) is offered separately by Sistina for an
Sistina_License_Terms_20040121 5
additional fee; or (c) alters or enhances the functionality of considered confidential and proprietary information of
the Sistina Software or adds new functions thereto. Sistina.
1.18 “Workaround” means the temporary prevention 4.4 No on-site service is included under this License
of the reoccurrence of an Error by implementing a specific Agreement. On-site service, and other services not
procedural process, or equipment change, restoration of covered by this License Agreement, may be provided by a
operational capability for the Sistina Software without separate agreement.
severely compromising the performance of that Sistina
Software or the installation of software designed to 5. ERROR DETERMINATION AND
temporarily address the issue until such time as a RESOLUTION PROCESS.
Temporary fix or Permanent Fix is available.
5.1 Error Determination. Customer shall use best
2. GENERAL OBLIGATIONS. efforts to ascertain the nature of each Error and the
circumstances under which the Error occurs.
2.1 Sistina is not obligated to provide Sistina
Software Support to installation sites using platforms and 5.2 Error Resolution Request. When making a
operating environments other than the System. Service Request, Customer shall provide the following
information:
2.2 In the event Customer increases the number of (a) Error description, including the environment
Nodes executing the Sistina Software, Customer will pay and steps necessary to reproduce the problem, if available.
Sistina a pro-rata portion of the per Node Sistina Software
Maintenance Fee for the remaining portion of the (b) Description of diagnostic work performed
then-current term for such increase. and data collected by Customer.
2.3 Customer must designate two (2) of its employees (c) Description of the action being requested (e.g.
as primary contact persons for all communication remedying or assisting in isolating the fault).
pertaining to Maintenance and Sistina Software Support
(“Customer Contacts”). (d) Preliminary Error classification pursuant to
the definitions in Schedule 2.
3. CUSTOMER OBLIGATIONS. Customer must
provide all information, cooperation, access to the System, 5.3 Error Resolution Process.
and any other assistance reasonably requested by Sistina
and, to the extent reasonably possible, obtain the (a) After Sistina receives a Service Request, it
cooperation of third parties when such cooperation is will acknowledge receipt thereof and attempt to confirm
deemed necessary by Sistina. Customer acknowledges Customer’s diagnosis of the problem. Sistina will then use
that Sistina may be unable to provide a Fix if such third commercially reasonable methods to take appropriate
party cooperation is not obtained. corrective action on the Service Request to resolve the
Error within the response times, and according to the
4. SISTINA OBLIGATIONS. Subject to the classification of the problem as specified in Schedule 2.
payment of all annual Maintenance and Support Fees (as
defined in Paragraph 6.1): (b) In the event a Fix is not provided in response
to a Service Request within the Fix Goal, Sistina will
4.1 Sistina will post notices on Sistina’s website provide Customer with an Action Plan based on a mutually
notifying the Customer of Updates when such Updates are agreed classification of the problem. An Action Plan may,
available on Sistina’s website (any request to receive at Sistina’s sole discretion, require Sistina to:
Updates on other media may be subject to an additional (i) reprioritize its other activities in order to meet the
charge); commitment to solve an Customer problem; (ii) increase
resources to address the problem; or (iii) remote dial into
4.2 Sistina will provide the Sistina Software Support an Customer system for direct observation.
to Customer pursuant to the procedure set forth in
Paragraph 5, within the response times set forth in (c) Sistina will notify Customer upon resolution
Schedule 2, during Standard Coverage or Extended of an Error or problem or upon the availability of a Fix.
Coverage, whichever applies based on Customer’s selected
service plan as indicated on the Quote; and (d) Sistina will have no liability, whatsoever, for
failure to provide a Fix within the Fix Goals or “Permanent
4.3 Sistina will provide to Customer current versions Fix Goals” (as defined in Schedule 2), so long as Sistina
of the Support Information on an on-going basis via the has made a good faith effort to provide a Fix within the Fix
Sistina Website. All Support Information will be Goals or Permanent Fix Goals. Furthermore, failure of
Sistina to provide a Fix within the Fix Goals or Permanent
Sistina_License_Terms_20040121 6
Fix Goals will not constitute a breach of the Agreement or 7.2 Either party shall have the right to terminate this
these Support Terms, nor will such failure be grounds for Attachment upon written notice in the event that the other
termination of the Agreement. party commits a material breach of the License Terms or
this Attachment, provided that the other party does not
(e) If a Permanent Fix cannot be achieved within cure such breach within fifteen (15) days after receiving
the Permanent Fix Goal, Sistina may, at its sole discretion, written notice of such breach from the other party (or, if
require Customer to enter a separate fee based custom later, prior to the time of receipt of notice of termination).
engineering agreement before continuing to work on the
problem. 8. LIMITATION OF WARRANTY.
Notwithstanding (and without limiting or altering)
6. FEES. anything in the License Terms, Sistina warrants that the
Maintenance and Support Services provided hereunder
6.1 Customer shall pay the annual software shall be performed in a professional and workmanlike
maintenance fee per Node (“Maintenance Fees”) manner. Sistina shall not be responsible for claims
indicated on the Quote. The Maintenance Fees for the resulting from changes or additions not made or approved
initial year of Maintenance and Support Services shall by Sistina, errors of Customer's personnel or contractors,
include two (2) hours of Sistina Software Support per Sistina Software not executed on the System or
Node to be provided during the hours of operation for the malfunctions or defects of third-party software, hardware,
applicable support plan elected by Customer as set forth on or operating environment.
the Quote (i.e., 5X12 or 7X12). For any Sistina Software
Support required by Customer in excess of the initial two 9. LIMITATION OF LIABILITY. NOT
(2) hours per Node provided by Sistina or outside of the LIMITING ANY PROVISIONS IN THE LICENSE
hours of coverage for the selected support plan, Customer TERMS: (1) THE CUMULATIVE LIABILITY OF
shall pay Sistina at Sistina’s then-current hourly fees, as SISTINA TO CUSTOMER FOR ALL CLAIMS
identified at the time of such service (“Support Fees”). WHATSOEVER RELATED TO THE MAINTENANCE
The terms for payment of the Maintenance and Support AND SUPPORT SERVICES OR OTHERWISE ARISING
Fees are set forth in the Quote. OUT OF THE PERFORMANCE OR
NONPERFORMANCE OF THIS ATTACHMENT,
6.2 For each renewal term of this Attachment INCLUDING ANY CAUSE OF ACTION SOUNDING
pursuant to Paragraph 7.1 below, the annual Maintenance IN CONTRACT, TORT, OR STRICT LIABILITY,
Fees per Node will be an amount equal to twenty percent SHALL NOT EXCEED THE TOTAL AMOUNT OF
(20%) of Sistina’s then-current list price per Node of the ALL MAINTENANCE AND SUPPORT FEES PAID TO
Licensed Software for 5X12 support and twenty three SISTINA BY CUSTOMER IN THE YEAR PRIOR TO
(23%) of Sistina’s then-current list price per Node of the THE ACCRUAL OF SUCH CAUSE OF ACTION; AND
Licensed Software for 7X24 support. (2) IN NO EVENT SHALL SISTINA BE LIABLE FOR
ANY SPECIAL, INDIRECT, INCIDENTAL, OR
7. TERM. CONSEQUENTIAL DAMAGES IN CONNECTION
WITH ANY CLAIM WHATSOEVER RELATED TO
7.1 Unless terminated earlier as provided herein, the THE MAINTENANCE AND SUPPORT SERVICES
terms, conditions and obligations of this Attachment will PROVIDED BY SISTINA, OR OTHERWISE ARISING
remain in effect for twelve (12) calendar months from the OUT OF THE PERFORMANCE OR
later of (a) the Effective Date of the Quote, or (b) if NONPERFORMANCE OF THIS ATTACHMENT, OR
Customer does not request Maintenance and Support ANY ACT, EVENT, OR CIRCUMSTANCE
Services as part of the Quote, the date on which Sistina AFFECTING CUSTOMER, INCLUDING ANY CAUSE
agrees to Customer’s request to perform Maintenance and OF ACTION SOUNDING IN CONTRACT, TORT, OR
Support Services. These Maintenance and Support Terms STRICT LIABILITY. Some states or jurisdictions do not
shall automatically renew thereafter for subsequent one (1) allow the exclusion or limitation of incidental,
year periods, unless and until either party provides written consequential, or special damages, or the exclusion of
notice thirty (30) days prior to the end of the then-current implied warranties or limitations on how long an implied
term of its intent not to renew the Maintenance and warranty may last, so the above limitations may not apply
Support Terms for another year. In the event of such to Customer. Sistina shall be excused from
termination, these Maintenance and Support Terms shall responsibility for any delay, interruption, error, or
continue in effect until the end of the current term unless malfunction resulting from natural disaster, transportation
otherwise terminated. Notwithstanding the foregoing, problems, defects, or malfunctions of third-party software,
these Maintenance and Support Terms shall terminate hardware or communications, acts or omissions of
immediately upon the effective date of any expiration or Customer or other persons not hired and supervised by
termination of the License Terms. Sistina, and other acts, events, or circumstances beyond
Sistina’s reasonable control, whether or not foreseeable or
identified.
Sistina_License_Terms_20040121 7
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Sistina_License_Terms_20040121SiDNVR1:60203992.06DNVR1
Schedule 1
System
Number of Nodes
Linux Kernel Version
GFS Version
CPU Description
Disk Controller
Disk Drives; Capacity
Network Power Switch
Fibre Channel Switch
Ethernet Switch
HBA Firmware Rev.
System Console
Other Hardware
Other Software
Sistina_License_Terms_20040121 9
Schedule 2
Responsiveness Goals
Hours of support operation shall be determined by the service plan selected by Customer as indicated on the Quote.
(i) “Standard Coverage” (or 5 x 12) hours: Monday through Friday, excluding Sistina’s local, national and state holidays,
from 7:00 a.m. to 7:00 p.m. in the Central Time zone; or
(ii) “Extended Coverage” (or 7 x 24) hours: seven (7) days a week, twenty-four (24) hours a day, including Sistina’s local,
national and state holidays, Customer may contact support by via email or phone.
Sistina will provide all Support during the applicable hours of support operation covered by the selected support plan.
Priority Level Technical Response Fix Goal Permanent Fix Goal
1 4 hours 1 day 90 days
2 4 hours 2 days 90 days
3 12 hours 7 days Next Release
4 12 hours Next Release Next Release
1. “Technical Response” means notification from the Sistina to the Customer and should include at a minimum:
(a) The Customer case has been received and reviewed by Sistina.
(b) Sistina’s internal case number referencing the Customer case.
2. “Fix Goal” means the average targeted amount of time to provide a Temporary Fix or a Workaround.
3. “Permanent Fix Goal” means the average targeted amount of time to provide a Permanent Fix.
4. The Fix Goals and the Permanent Fix Goals are meant to serve as objectives, which should be attained and are
used as points of discussion for further process refinement and improvement. Sistina has no liability for failure to
provide a Fix within the Fix Goals or Permanent Fix Goals, provided, however, Sistina has made a good faith
effort to provide a Fix within the Fix Goals or Permanent Fix Goals. Furthermore, failure of Sistina to provide a
Fix within the Fix Goals or Permanent Fix Goals will not constitute a breach of the Agreement or these Support
Terms, nor will such failure be grounds for termination of the Agreement.
5. All response periods identified above will be performed strictly in accordance with the available hours and days of
operation set forth in Standard Coverage.
6. “Priority Level” means one of the following four categories, which describe the seriousness of a Service Request:
“Priority Level 1”: The Customer experiences real or perceived data loss or corruption or an essential part of the Sistina
Software is unusable for the Customer. Unusable means that Customer can’t use an essential part of the Sistina Software
because of an Error. Essential parts of the Sistina Software are those that Customer needs to use the Sistina Software
effectively.
“Priority Level 2”: The Customer’s effectiveness is severely compromised for an essential part of the Sistina Software
although all essential parts of the Sistina Software can be used. This can be measured by comparison to previous releases
of the Sistina Software or the Specifications.
“Priority Level 3”: The Customer’s effectiveness is compromised, though not severely. All essential parts of the Sistina
Software can be used.
“Priority Level 4”: The Customer can circumvent the problem and use the Sistina Software with moderate inconvenience.
Sistina_License_Terms_20040121 10