Stratus ftServer^™ Service Terms and Conditions

STRATUS TECHNOLOGIES
CLICK-TO-ACCEPT
SERVICE TERMS AND CONDITIONS
FOR FTSERVER™ PRODUCTS

Unless you have a signed master agreement with (i) Stratus Technologies Ireland Limited or an affiliate (“Stratus”) or (ii) a Stratus authorized Service Provider, Stratus will provide the support services as described in this Agreement (“Services”) for the Service Level (Service Level Table is at the end of this document) and the ftServer Products listed in your order. Stratus’ obligation to provide these Services is contingent upon your prompt payment of Stratus’ invoices (not later than 30 days from receipt) and your compliance with your other obligations as listed below.

BY ACCEPTING THE SERVICES DESCRIBED YOU AGREE TO ACCEPT AND BE BOUND BY THESE TERMS AND CONDITIONS (THE
“AGREEMENT”). IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT CLICK ACCEPT AS YOU MAY NOT
PROCEED.

1. Definitions:

2. System Eligibility:

Systems placed under Service within 90 days from initial system shipment date are automatically eligible for coverage under this Agreement. Systems placed under Service after this 90 day period must first be inspected and certified by Stratus or its authorized service representative as service ready. Such an inspection and certification will be at your expense based on Stratus’ then prevailing rates. Any work required to bring the System up to a service ready condition will also be at your expense.

3. Your Responsibilities:

You agree to do all of the following:

4. Term and Termination:

The initial term for Services shall commence as stated on your service quote and shall continue for a period of one (1) year or for the period as otherwise agreed (“Initial Term”). Thereafter, the term for Services shall automatically renew for successive terms of one (1) year each (“Renewal Term”) at Stratus’ then current rates, unless either party gives written notice to the other of its intention not to renew at least sixty (60) days prior to the commencement of the next term.

5. Payment:

If the Initial Term of a Service Level is purchased and invoiced to you by a Stratus Reseller, then payment shall be made to that Stratus Reseller. Payment for any renewal term shall be made to Stratus and be due within thirty (30) days of your receipt of Stratus’ invoice. You also
agree to pay an amount equal to any applicable taxes resulting from any transaction under this Agreement that Stratus is obligated to pay on your
behalf, except that you will not be liable for taxes based on Stratus’ net income. You agree to pay Stratus, on demand, interest at the rate of one and one half percent (1.5%) per month or the maximum legal rate in effect, whichever is less, on all overdue amounts together with any collection and attorney’s fees and expenses Stratus incurs in the collection of such overdue amounts. Prepaid service fees are non-refundable in the event of any termination of this Agreement unless due to Stratus’ uncured material breach.

6. Problem Escalation to Stratus:

Subject to the purchased Service Level described in the table below, you may escalate Problems to Stratus by telephone or through the Stratus Service Portal based on the following:

7. Remote System Support and Monitoring of Covered Systems

is provided on a 24×7 basis through the ASN and the Stratus CAC and includes one or more of the following:

• 7.1. System monitoring of hardware faults for the supported Hardware.
• 7.2. System monitoring of major faults of the Stratus supported operating system.
• 7.3. System generated Alarms transmitted to Stratus through the Stratus ASN and evaluated by the Stratus Customer Service team resulting in:
  • 7.3.1. Alarm determined to be informational and/or not requiring action by Stratus support.
  • 7.3.2. Alarm determined to be actionable and requiring Stratus support. A support case is created and assigned to a service engineer per the response times listed in the Service Level Table below.
• 7.4. System Monitoring does NOT include monitoring of the following:
  • Guest operating system.
  • Non-Stratus applications installed and running on the system.
  • Network security and intrusion detection.
  • Anti-virus and malware detection.

8. Software Support:

Stratus will provide technical support which shall include, where applicable, Product Updates and Upgrades. Stratus will use commercially reasonably efforts to respond, based on the severity of the problem and in accordance with the Service Level purchased as indicated in the Service Level Table below. Software Support applies to the then currently supported version of the Supported Software. Resolution of problems may consist of the provision of a workaround, fix, or upgrade. An upgrade to a later version of the Product may be required in cases where a fix is not possible.

• 8.1 Supported Versions: Support on versions of software will be provided based on Stratus’ published support policy which can be found at https://www.stratus.com/services-support/customer-support.
• 8.2 Stratus Automated Uptime Layer Software (“AUL”): Stratus technical support engineers will provide problem relief if technically feasible and necessary, available Updates, Upgrades and “Bug Fixes” (a change in the object code intended to correct a defect in the implementation of the Software) as well as information and assistance related to Software features. Updates and Upgrades are available online at https://www.stratus.com/support.
• 8.3 Operating System Support
  

  Operating System	Total Assurance	Other Service Levels
  Windows or Red Hat Linux or VMware	Service for Critical and Serious problems related to the Stratus supported version of the applicable Operating System. Stratus technical support experts will troubleshoot and work to resolve problems and provide root cause determination. If required, Stratus will work collaboratively with the Operating System support provider. With Red Hat Linux and VMware, collaboration support requires you to establish the connection between Stratus and your Operating System support provider. This can be accomplished through your Red Hat Linux / VMware Subscription Service.	Isolate the problem up to the Stratus Hardware/Software or the Operating System. If the problem pertains to the Operating System, you shall be advised to contact your Operating System support provider.

  • 8.3.1. Operating System support examples include technical assistance with general questions or problems pertaining to the OS, how to use a specific feature of the OS running on the Covered System, resolving an error condition as it relates to the Covered System, technical assistance with installation of the OS and related updates, information about the installation process, troubleshooting problems or failures during installation.
  • 8.3.2. Operating System Support excludes expertise and support for routine Operating System problems or for systems administration issues such as assistance with system administration tasks, administering user passwords and permissions, creation or configuration of virtual machines, import and export of virtual machines, troubleshooting and root cause of guest operating systems, system backup or snapshot procedures, creation of, troubleshooting or ongoing maintenance of data stores, storage management and maintenance activities
    including local disk storage, Storage Area Network (SAN) or Network attached Storage (NAS), network configuration & troubleshooting including virtual networking, isolating performance issues, system security settings and best practices.

9. Stratus Service Portal:

Stratus will provide you 24×7 access to the Stratus Service Portal, which is a web-based application that provides online, real-time case management and communication functionality. The Service Portal includes access to:

• Stratus’ knowledge base
• Frequently asked questions
• Product video tutorials
• Bug fixes
• Technical documents

10. Hardware Services:

11. On-Site Services(applies to Hardware and AUL Software only):

Stratus will provide on-site support only under the following circumstances:

• 11.1. Emergency On-Site Services:Stratus will provide emergency on-site service if the Product experiences a Critical problem and cannot be restored to operational status through remote support means.
• 11.2. Next Business Day On-Site Services:Stratus will provide next business day on-site service if the Product experiences a Serious problem and cannot be restored to operational status through remote service means.
• 11.3. Conditions for On-Site Hardware Services
  • 11.3.1. While Stratus is on-site, you must provide all reasonable assistance and cooperation and must allow Stratus to work without interruption or interference.
  • 11.3.2. Subject to Stratus’ reasonable judgment, on-site Services will be provided until such time as the Product is operational or if reasonable progress is being made.
  • 11.3.3. Work may be suspended if additional parts or resources are required.
  • 11.3.4. Any after-hours, weekend, holiday, and CRU on-site services requested by you will be provided at Stratus’ prevailing rates and other charges.
  • 11.3.5. Travel expenses incurred for traveling to and from your site located more than fifty (50) miles or eighty (80) kilometers from the nearest Stratus service center will be charged to you and must be paid within thirty (30) days of receipt of Stratus’ invoice.

12. Media Retention (Optional Service):

You may elect to not return failed disks to Stratus for replacement.

13. Renewal of Services:

Service renewal will occur automatically, unless earlier terminated by either party with at least sixty (60) days written notice prior to the expiration of the current term.

• 13.1.Reinstatement of Services. If Support has terminated because of non-renewal or non-payment, and you desire to reinstate Support, Stratus will reinstate such support only after completion of all the following:
  • 13.1.1.At your cost, update the Product to a service ready condition; and
  • 13.1.2.Pay Stratus: (a) all undisputed invoices, (b) the annual support fee for at least the next one-year period, and (c) the amount equal to what you would have paid Stratus for the period of time in which the Support has lapsed, and (c) a reinstatement fee.

14. End of Support Life for Supported Product:

In the event Stratus determines that it will no longer support a Product, that Product is said to enter an “End of Support” or “EOS” status. In such event, Stratus will provide one hundred eighty days (180) prior written notice. Stratus’ obligations hereunder, with respect to any such Product, shall terminate effective on the date specified in the EOS notice and that Product shall cease to be a Supported Product.

15. Limitations and Exclusions:

This Agreement is of limited duration and coverage. This Agreement extends only to the original purchaser of the Covered System and only to uses for which the System was designed. Stratus is not obligated to repair any Covered System, subassembly, or component part which has been damaged as a result of: (i) fire, natural disaster, neglect, misuse, abuse and war or other events or causes of force majeure, (ii) unauthorized modifications, use of non-Stratus supplied equipment or software, damage resulting from environmental considerations such as electrical power, heat, cold, or humidity outside the published product specifications, or operating the Covered System in an other than the fully redundant mode.

16. Limited Warranty:

• 16.1. STRATUS WARRANTS THAT THE SERVICES WILL BE PROVIDED IN A GOOD AND WORKMAN LIKE MANNER.
• 16.2. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES, TERMS AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, SUITABLE QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF A SYSTEM OR THAT ALL PRODUCT ERRORS OR DEFECTS WILL BE CORRECTED.

17. LIMITATION OF LIABILITY:

• 17.1. IN NO EVENT SHALL STRATUS BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSSES (INCLUDING WITHOUT LIMITATION LOSS OF USE, DATA, PROFIT OR BUSINESS), WHATEVER THE BASIS OF THE CLAIM OR ACTION (SUCH AS BREACH OF WARRANTY, CONDITION, CONTRACT, INFRINGEMENT OR TORT, INCLUDING WITHOUT LIMITATION STRICT LIABILITY AND NEGLIGENCE OR OTHER LEGAL THEORY) EVEN IF IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE.
• 17.2. TO THE MAXIMUM EXTENT PERMITTED BY LAW, STRATUS’ LIABILITY FOR DAMAGES OR LOSSES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE BASIS OF THE CLAIM OR ACTION WILL BE LIMITED TO THE AMOUNT PAID TO STRATUS FOR THE SPECIFIC SERVICE OPTON COVERING THE PRODUCT(S) THAT CAUSED THE DAMAGES OR LOSSES. Because some states or countries do not allow a limitation on the duration of an implied warranty or the exclusion of incidental or consequential damages, the above limitations and/or exclusions may not apply to you.

18. General Terms:

• 18.1. These terms and conditions together with all applicable Service Level descriptions constitute the entire agreement between you and Stratus regarding the subject matter hereof and supersedes all previous and contemporaneous written and oral representations, proposals, and
  communications, including, without limitation, the terms and conditions of any purchase order or other similar document.
• 18.2. These terms and conditions and all transactions hereunder shall be governed by and enforced in accordance with the laws of the Commonwealth of Massachusetts without giving effect to the choice of law principles thereof.
• 18.3. Location of Service: We will provide Maintenance Services only at the locations(s) specified upon purchase of a Service Level unless we
  agree otherwise, in writing.
• 18.4. Except as otherwise specified in this Agreement, all Services required of Stratus under this Agreement shall be provided only during the hours of 9:00 A.M. to 5: 00 P.M, Monday through Friday, local time to the Covered System, excluding locally observed holidays.
• 18.5. Assignment: Neither party may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld. Any attempt to make any such assignment or transfer without the other party’s express written consent will be deemed void. Notwithstanding the foregoing, either party may assign all of its rights and delegate
  all of its obligations hereunder to one of its affiliates or to the party that acquires all or substantially all of its assets.

SERVICE LEVEL TABLE IS ON THE NEXT PAGE

Service Level Table:

The above list of countries is subject change. Please see https://www.stratus.com for any changes to the above list.

UPTIME GUARANTEE ADDENDUM

Eligibility: Coverage under this Guarantee is available only for Systems, for which Service coverage has been purchased under the Total Assurance Service Option, and only if coverage under this Guarantee was subscribed contemporaneously with and at the time of initial purchase of the Covered System.
1. Service Charge Credit
If the Covered System described in the Service Schedule fails as defined below (“System Failure”), the Customer will be entitled to a credit against future Service payments equivalent to one month’s Service charge for the affected Covered System.
2. General Conditions and Qualification
A System Failure occurs when a previously functioning Covered System becomes unavailable, rendering Customer’s users unable to use it, provided that:

• The System Failure occurs during production use, not development use.
• Coverage applies to Windows Server, Red Hat Linux, or VMware OS under the Total Assurance Service Option, only if failure results from Stratus Hardware, Stratus ftServer AUL Software, or Stratus-supported OS versions.
• The Covered System must have been running in fully redundant mode immediately before the failure. Systems running in simplex mode are ineligible unless restored to redundancy.
• Coverage applies only to the first instance of a problem on the initial affected Covered System.
• Coverage does not apply to planned events, known defects, security/network outages, or force majeure events like fire, natural disaster, or misuse.

3. Stratus Responsibilities

• Provide written or network-based notification of known conditions that may cause availability issues.
• Schedule a meeting to discuss service credit eligibility when necessary.

4. Customer Responsibilities

• Operate the system in fully redundant mode.
• Determine if an availability issue occurred before requesting a service credit.
• Implement within 14 days any required procedures, including software bug fixes, to maintain system availability.
• Notify Stratus in writing within 30 days of a System Failure to claim a service credit, or the right to the credit is waived.