ftServer^™ Service Terms and Conditions

Unless you have a signed master agreement with Stratus Technologies Ireland Limited (“Stratus”), Stratus will provide the maintenance services described below for the Service Level and the ftServer Products listed in your order.  BY ACCEPTING THE SERVICES DESCRIBED ON YOUR INVOICE AND YOUR PURCHASE ORDER, YOU AGREE TO ACCEPT AND BE BOUND BY THESE TERMS AND CONDITIONS (THE “AGREEMENT”).

1. Definitions:

1.1. “Active Service Network” or “ASN” is a secure worldwide network that allows Covered System to be linked with Partner, Stratus and other authorized third-party vendors’ CACs.
1.2. “Bug Fix” means a change in the object code of Software owned or sublicensed by Stratus intended to correct a defect in the implementation of the Software.
1.3. “Covered System” means the ftServer System(s) listed in your order and service invoice.
1.4. “Critical Problem” means a problem in or with a Supported Product that causes a Covered System used in a production or development environment to become completely unavailable to users.
1.5. “Customer Assistance Center” or “CAC” means the Stratus resources through which we deliver support and services.
1.6. “Customer Replaceable Units” or “CRUs” mean all Parts and subassemblies of a Covered System that are not identified as Field Replaceable Units. Unless otherwise noted, you must remove and replace all CRUs.
1.7. “Field Replaceable Units” or “FRUs” mean Parts or subassemblies that must be removed and replaced only by an authorized Stratus service representative. FRUs are listed and identified in the Stratus User Manual(s) accompanying the Covered System when shipped by Stratus or its designee.
1.8. “Hardware” or “Parts” means the Stratus supplied ftServer systems and any associated components.
1.9. “Minor Problem” means a problem in or with a Supported Product that results in minimal or no interruptions in normal to normal operations of a Covered System used in a production or development environment.
1.10. “Moderate Problem” means a problem in or with a Supported Product that causes interruptions in normal operations of a Covered System used in a production or development environment.
1.11. “Serious Problem” means a problem in or with a Supported Product that results in serious interruptions to normal operations of a Covered System used in a production or development environment
1.12. “Products” means all supplied ftServer Hardware and Software products.
1.13. “Service(s)” means all activities described in this document that correspond to the applicable Service Level you selected for your Covered System.
1.14. “Service Level” refers to the packaged Service offerings that you may purchase from Stratus for your ftServer Systems. Descriptions of Stratus’ current Service Levels are available on the Stratus Website at HUhttp://www.stratus.comH.
1.15. “Service Portal” is a Stratus web-based application that provides on-line, real-time call management and communication functionality. The Service Portal includes access to Stratus’ knowledge base, frequently asked questions, Bug Fixes and technical documents.
1.16. “Software” or “Supported Software” means the then-current Stratus supported versions and components of the Operating System, Stratus Automated Uptime Layer Software and other supported Stratus Software.

2. 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:

3.1. Assign and maintain a technically skilled employee or agent as your primary contact with Stratus. Customer’s failure to provide a technical contact will result in Stratus’ inability to respond to system auto-generated issues.
3.2. Maintain the Covered System(s) in a manner consistent with all applicable product specifications provided by Stratus or the manufacturer.
3.3. Provide Stratus, at no charge, use of suitable telecommunications equipment to establish data communications over the ASN.
3.4. Execute diagnostic routines and provide the results to Stratus.
3.5. Access and make appropriate use of Stratus’ Internet home page for technical support information.
3.6. Notify Stratus of any configuration changes to the original Covered System configuration.
3.7. Where appropriate, use the Stratus provided hardened drivers.
3.8. Replace CRUs under the remote direction of the Stratus CAC, Customer Engineer or Stratus Authorized Service Representative.
3.9. Perform housekeeping services, such as, cleaning, replacing expendable parts (e.g.: batteries), performing regular operating checks and providing necessary supplies pertaining to these services.
3.10. Ensure that all data on the Covered System(s) is adequately duplicated or protected. Stratus is not responsible for loss of any data or the cost of reconstructing data lost or damaged during the performance of Services.
3.11. Ensure that (1) all software installed on the Covered System(s) is properly licensed for use; (2) all non-supported hardware and software products are compatible with the Stratus-supported Hardware and Software; and (3) all Covered System(s) are adequately protected against computer viruses.
3.12. Install all Software product updates and upgrades as made available or as reasonably possible.
3.13. Maintain and operate Covered Systems in a fully redundant mode of operation at all times.
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3.14. Install any security vulnerability patches or Service Packs that resolves security vulnerabilities in the Operating System. Stratus will not be responsible for its inability to receive and respond to automated problem notifications as a result of the loss of connection between the Covered System and the ASN due to the foregoing.

4. Term and Termination: The initial term for Services shall commence on the date mutually agreed by the parties 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”) 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. Remote System Support and Monitoring of Covered Systems is provided on a 7×24 basis through the ASN and the Stratus CAC and includes one or more of the following:

6.1. Automatic Hardware problem notification. The Covered System will automatically generate a call to Stratus CAC notifying us of a Hardware failure;
6.2. Automatic Parts replacement: Stratus’ CAC will disburse a part replacement based on the Covered System’s automatically generated calls;
6.3. An initial telephone call back by Stratus’ CAC following receipt of an automatically generated call. Call backs will be made during our business hours and within the applicable time period for the Service Level as set forth in the table below;
6.4. Access to Software downloads, uploads and on-line diagnostic routines; and
6.5. Auto notification initiated by the Covered System relating to Software installations and system reboots.

7. Software Support: Stratus will provide, as indicated in the table below, unlimited access to the Stratus CAC for assistance with software problems related to the then currently supported version of the Stratus Software and supported non-Stratus Software (hereinafter referred to as “Supported Software”) identified in your order. Software support may apply to one or more of the following:

7.1. Stratus Software: Stratus technical support engineers will provide problem relief if technically feasible and necessary, available Software Updates and Bug Fixes as well as information and assistance related to Software features. Stratus will maintain Supported Stratus Software such that it will inter operate with the then Stratus-supported release of the operating system.

7.2. Operating System Support

7.2.1. Microsoft Windows Operating System Support (if applicable):

7.2.1.1. For Covered Systems under the Total Assurance Service Level. Stratus shall provide Service for Critical and Serious problems related to the Stratus supported version of the Microsoft Windows Operating System. This service will provide you with priority access to Windows certified Stratus engineers, who will work collaboratively with Microsoft support personnel to address problems traced to the Windows Operating System.
7.2.1.2. For Covered Systems under the System Assurance, Extended Platform Support and Platform Support Service Levels. Stratus shall isolate the problem up to the Stratus Hardware/Software or the Operating System. If the problem pertains to the Operating System, Customer shall be advised to contact its Operating System support provider. For the avoidance of doubt, root cause problem determination of the Operating System and the provision of Updates and new Bug Fixes are not included.

7.2.2. Red Hat Linux Operating System Support (if applicable):

7.2.2.1. For Covered Systems under the Total Assurance Service Level. Stratus shall provide Service for Critical and Serious problems related to the Stratus supported components of the Red Hat Linux operating system. This service will provide priority access to Stratus engineers, who will work collaboratively with Red Hat support personnel to address problems traced to the supported components of the Red Hat Linux operating system.
7.2.2.2. For Covered Systems under the System Assurance, Extended Platform Support and Platform Support Service Levels. Stratus shall isolate the problem up to the Stratus Hardware/Software level. If the problem pertains to the Operating System, Customer shall be advised to contact its Operating System support provider. For the avoidance of doubt, root cause problem determination of the Operating System and new Bug Fixes are not included.
7.2.2.3. The Red Hat Linux Subscription Service must be purchased with the applicable Service Level in order to receive support from Stratus on the Red Hat Linux supported components.
7.2.2.4. Stratus supported Red Hat Linux components include and are limited to the following: (a) Installation Services modules; and (b) Advanced Configuration modules; and (c) System Administration modules.

7.2.3. VMware Operating System Support (if applicable):

7.2.3.1. For Covered Systems under the Total Assurance Service Level. Stratus shall provide Service for Critical and Serious problems related to the VMware operating system. This service will provide priority access to Stratus engineers, who will work collaboratively with VMware support personnel to address problems traced to the VMware operating system.
7.2.3.2. For Covered Systems under the System Assurance, Extended Platform Support and Platform Support Service Levels. Stratus shall isolate the problem up to the Stratus Hardware/Software level. If the problem pertains to the Operating System, Customer shall be advised to contact its Operating System support provider. For the avoidance of doubt, root cause problem determination of the Operating System and new Bug Fixes are not included.
7.2.3.3. The VMware Support and Subscription Service must be purchased with the applicable Service Level.

7.2.4. Operating System support excludes expertise and support for routine Operating System problems.

8. Service Portal: Stratus will provide you 7×24 access to the Service Portal, which includes the following:

• Service event call logging and monitoring;
• Stratus’ technical Knowledgebase;
• Software downloads;
• Product and service notifications

9. Hardware Remedial Services: Depending upon the Service Level purchased, Stratus will provide one or more of the following:

9.1. Advanced Parts Exchange: We will use commercially reasonable efforts to provide same business day, pre-paid shipment of a replacement part for an automatic or telephone call-in Parts request that is received before 5:00 P.M local Stratus time. Restrictions may apply in certain countries. Replacement part shipments will include shipping material and a pre-paid freight bill for return of the defective part. You must return the defective part to us within 14 calendar days from the date of the Parts request, otherwise you will be billed and must pay us the Stratus list price for the replacement part(s) shipped. Stratus assumes all risk of loss or damage to Parts that are in transit to and, provided you properly packed them for transportation, from your location.

9.2. CRU Replacement: You must remove and install CRUs under the remote direction of the Stratus CAC, or our Customer Engineer or Authorized Service Representative. A listing of CRUs for your Covered System can be found on the Stratus Website at Hhttp://www.stratus.comH.

9.3. On-Site Hardware Services: Stratus will provide on-site Hardware support only under the following circumstances:

9.3.1. FRU Replacement: We will replace defective FRUs on-site on a schedule basis during local business hours.
9.3.2. Same Day Emergency On-Site Services: We will provide same day emergency on-site service if the Covered System experiences a Critical problem and cannot be restored to operational status through remote support means.
9.3.3. Next Business Day On-Site Services: We will provide next business day on-site service if the Covered System experiences a Serious problem and cannot be restored to operational status through remote service means.

9.3.4. Our obligation to provide On-Site Hardware Services is subject to the following conditions:

9.3.4.1. While we are on-site, you must provide us with all reasonable assistance and cooperation and must allow us to work without interruption or interference.
9.3.4.2. Subject to our reasonable judgment, on-site Services will be provided until such time as the Covered System is operational or as long as reasonable progress is being made.
9.3.4.3. Work may be temporarily suspended if additional Parts or resources are required.
9.3.4.4. Any after hours, weekend, holiday and CRU on-site services requested by you will be provided at our prevailing rates and other charges.
9.3.4.5. Travel expenses incurred in traveling to and from a Covered System 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.

10. 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.

11. Limited Warranty:

11.1. STRATUS WARRANTS THAT THE SERVICES WILL BE PROVIDED IN A GOOD AND WORKMAN LIKE MANNER.
11.2. 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.

12. LIMITATION OF LIABILITY:

12.1. 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.
12.2. 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.

13. General Terms:

13.1. 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.
13.2. 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.
13.3. 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.
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13.4. 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.
13.5. 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.