Software Support Services – JetStream Software: Cloud Native Disaster Recovery

JETSTREAM SOFTWARE SUPPORT SERVICES POLICY

This document details the JetStream Software Support Services Policy (“Policy”) offered by JetStream Software Inc. (“JetStream Software”) or an applicable subsidiary thereof (collectively, “JetStream Software”) to Customers. In the event any terms included in a JetStream Software End User License Agreement or a license purchase agreement between JetStream Software and a Customer conflict with this Policy (either, a “JetStream Software License Agreement”), the terms of the JetStream Software License Agreement will govern.

Support is available for a specific copy of Software only if Customer purchases Support for such copy of that same Software.

This Policy may be changed at any time by JetStream Software in its sole discretion; provided, that Policy changes made by JetStream Software will not result in a material reduction in the level of Support provided for supported Software during the Support period for which fees have already been paid by Customer. The most current version of the Policy will be available at the URL specified by JetStream Software.

1. Definitions. Capitalized terms used in this Policy and not otherwise defined shall have the respective meaning assigned thereto in the applicable JetStream Software License Agreement.

1.1. “Authorized Contact(s)” means the primary contact(s) between Customer and JetStream Software regarding the registry and report of Service Requests.

1.2. “Authorized Third Party” means a reseller, distributor or other third party which distributed Software to Customer or any entity which is responsible for providing Level 2 Support.

1.3. “Customer” means an authorized end user of supported Software that has purchased Support from JetStream Software or an Authorized Third Party.

1.4. “Fix” means the repair or replacement of object or executable code within the Software to remedy an Incident.

1.5. “Incident” means a report by Customer that the Software is not performing in substantial conformance with the Software’s documentation.

1.6. “Service Hours” means 24 hours/day, 7 days/week.

1.7. “Service Request” means a telephone call, email notification or web portal submission from Customer (or an Authorized Third Party on Customer’s behalf) to JetStream Software after completion of the procedures specified in Section 2 in respect of a Severity 1, Severity 2, Severity 3 or Severity 4 Incident.

1.8. “Severity 1” means an Incident which is characterized by the following attributes: the system is down or severely degraded. The issue renders a business critical system or service unavailable, substantially unavailable or severely impacts normal business operations, and there is no known Workaround. In each case prohibiting the execution of productive work. JetStream Software and the Customer will commit dedicated resources to restore the services promptly.

1.9. “Severity 2” means an Incident which is characterized by the following attributes: the issue does not render a business critical system or service unavailable or substantially unavailable, but a function or functions are not available or functioning as they should, in each case prohibiting the execution of productive work. JetStream Software and the Customer will commit dedicated resources as required during normal business hours to restore the services.

1.10. “Severity 3” means an Incident which is characterized by the following attributes: the system is operational but experiencing minor degradation or problems exist causing minimal impact. The Incident affects the ability of a group or individual to access or use a system or service or a key feature thereof, but such Incident does not prohibit the execution of productive work. JetStream Software and the Customer will commit resources as required during normal business hours to restore service to satisfactory levels.

1.11. “Severity 4” means an Incident which is characterized by the following attributes: Customer requires information or assistance on JetStream Software product capabilities, installation, or configuration. Such Incident may require an extended resolution time, but does not prohibit the execution of productive work and a reasonable workaround is available. There is little or no impact to Customer’s business operation. JetStream Software and Customer will provide resources during normal business hours to provide information or assistance as requested.

1.12. “Severity Level” shall mean the level of severity (Severity 1, Severity 2, Severity 3 or Severity 4) assigned to an Incident.

1.13. “Software” means software identified in the JetStream Software License Agreement, in object code form, together with any Updates provided by JetStream Software to Customer in connection with Support.

1.14. “Support” means (a) the provision of Updates related to the Software; (b) assistance by telephone or internet with respect to the use of the Software, if and to the extent a problem or Incident is not resolved by Level 1 Support or Level 2 Support (as defined below); and (c) Incident verification, analysis and correction, in each case as further described in this Policy. “Support” under this Policy does not include any onsite support or related professional services.

1.15. “Support Response Time” means the elapsed time during Service Hours between the receipt of a Service Request and the target time within which JetStream Software begins Support as verified by a verbal or email confirmation to Customer or the Authorized Third Party.

1.16. “Update” means a bug-fix, patch or error correction, which JetStream Software makes generally available to end users of the Software to whom JetStream Software owes a support obligation, but excludes hardware, software or services for which JetStream Software would generally charge an additional fee. An Update does not include an Upgrade.

1.17. “Upgrade” means a new version of the Software, including any interim release.

1.18. “Workaround” means a change in the procedures followed or data supplied by Customer to avoid an Incident without substantially impairing Customer’s use of the Software.

2. Support Services. JetStream Software will provide Support to Customers with an active subscription for Support for the applicable Software and for the server(s) running such Software under such actively subscribed Support, pursuant to the following procedures.

2.1. Support services for Software under this Policy shall commence upon delivery of the license key for such Software by JetStream Software when the Customer subscribes to such services.

2.2. Level 1 and Level 2 Support; Customer Support Center. If an Incident is identified by Customer, Customer must first use its commercially reasonable efforts to resolve the Incident and/or find a Workaround using its own internal technical support organization. If a Customer is unable to resolve an Incident or find a Workaround after using commercially reasonable efforts and such Customer has a valid, paid Support entitlement from an Authorized Third Party, Customer’s Authorized Contact should first contact such Authorized Third Party, for assistance with functions and features of the Software or documentation, guidance in the operation of the Software, confirmation of the existence of an Incident and opening and logging a support matter (“Level 1 Support”). If Customer is unable to resolve an Incident or find a Workaround through Level 1 Support from an Authorized Third Party, such Authorized Third Party shall attempt to identify the Incident, assign a Severity Level to the Incident and review the Software knowledge-base for possible resolutions, Workarounds or Fixes to the identified Incident (“Level 2 Support”). JetStream Software is not responsible for the performance of any Authorized Third Party’s obligations or performance of any Level 1 or Level 2 Support. Within a reasonable time taking into account the Severity Level of any identified Incident, the Authorized Third Party may contact the JetStream Software Customer Support Center to initiate Incident verification, analysis and correction by JetStream Software. If a Customer is not entitled to Level 1 and Level 2 Support from an Authorized Third Party, but (if applicable) has purchased Support Services directly from JetStream Software, such Customer’s Authorized Contact may place a Service Request to report an Incident directly to the JetStream Software Support Center during Service Hours, and if such Incident is verified by JetStream Software, JetStream Software shall assign a Severity Level for such Incident and endeavor to resolve such Incident as described below.

2.3. Service Request Logging. JetStream Software shall acknowledge receipt of Service Requests by telephone, email or web portal entry with a tracking number.

2.4. Software Support Response Times. Support for the Software is available during Service Hours. JetStream Software will use commercially reasonable efforts to comply with the following Support Response Times during Service Hours:

2.5. Software Response. If JetStream Software determines that an Incident reported through a Service Request is a Severity 1 or 2 Incident, JetStream Software will apply commercially reasonable efforts to provide Customer with a Workaround or Fix. Following acknowledgement of a Severity 3 Incident, JetStream Software will endeavor to provide Customer with a Workaround or Fix. Following acknowledgement of a Severity 4 Incident, JetStream Software will endeavor to incorporate any necessary changes with the next release of the Software, or provide a Fix or Workaround thereto, in its sole discretion.

2.6. Software Support Exclusions. If JetStream Software believes that a problem reported by Customer may not be caused by the Software, JetStream Software will so notify Customer. Support does not include services requested (i) as a result of, or with respect to, causes which are not attributable to JetStream Software or the Software, (ii) where the reported problem is not due to an Incident, (iii) when JetStream Software cannot reproduce the Incident in standalone form after using commercially reasonable efforts to do so, or (iv) in connection with a Customer’s use of JetStream Software software under an evaluation license (any, an “Excluded Service”). Excluded Services will be billed to Customer at JetStream Software’s then-current rates. Causes which are not attributable to JetStream Software or the Software include, but are not limited to: (i) modifications made by or at the direction of Customer, other than modifications made by JetStream Software, to its operating environment, third party software or hardware that adversely affects the Software; (ii) any alterations or additions to the Software not performed by JetStream Software; (iii) operation of the Software in violation of the applicable JetStream Software License Agreement or other than in accordance with the documentation; (iv) failures which are caused by Customer or Customer’s software or other software, hardware or products not licensed by JetStream Software; or (v) accident, neglect, misuse, and/or improper installation.

2.7. Onsite Support Services. Customer is not entitled to onsite support services of any kind under this Policy. Subject to such policies, conditions, fees and reimbursement policies as JetStream Software may establish, Customer may request onsite support or related professional services from JetStream Software or an Authorized Third Party associated with the Software in question, which shall be offered in JetStream Software’s sole discretion subject to the terms and conditions of a separate agreement or service policy offered and authorized by JetStream Software.

2.8. Delivery of Updates: Updates and any keys necessary to use Updates shall be provided to Customer electronically. Customer is fully responsible for downloading and installing Updates. Electronic delivery may be accomplished by JetStream Software electronically transmitting Updates and keys to Customer or by making Updates or keys available for download by Customer from a protected download site such as an FTP site. Support for Software hereunder does not entitle a Customer to obtain rights to use or have access to any subsequent new versions or upgrades to the Software; a Customer is obligated to purchase such rights separately if the Customer wishes to install and use such new versions or upgrades. JetStream Software is under no obligation to develop or distribute any Update.

3. Support Fees; Payments.

3.1. Timing of Payment. Timely payment of, or if applicable, a firm commitment to pay (e.g., purchase order received by JetStream Software) fees for Support must be made in accordance with the payment terms as stated on the JetStream Software License Agreement or JetStream Software order document. Support fees for Customer’s initial order of Support for Software will be due and payable to JetStream Software or the applicable Authorized Third Party prior to the commencement of Support. Unless Support for the Software is terminated by Customer or JetStream Software in accordance with this Policy, Support fees for subsequent Support periods must be paid to JetStream Software or the applicable Authorized Third Party prior to the end of the then-current Support period. Customer’s failure to provide timely payment for Support will result in the termination of Support.

3.2. Pricing for Support. The amount of all Support fees and other amounts charged to Customer under this Policy shall be provided to Customer in a price quotation or invoice by JetStream Software or an Authorized Third Party. JetStream Software and Authorized Third Parties reserve the right to change the cost of Support at any time and nothing in this Policy or any JetStream Software License Agreement will be interpreted to limit JetStream Software’s or an Authorized Third Party’s right to modify the cost of Support in its sole discretion. Any adjustments to the cost of Support will apply prospectively only and will not affect Support previously purchased by Customer from JetStream Software or an Authorized Third Party.

3.3. Reinstatement of Support. If Customer allows its Support for Software to lapse or does not purchase Support for the Software when the Software is originally purchased, a reinstatement fee will be charged if Customer subsequently desires to purchase Support for that Software. The reinstatement fee will be equal to the product of (a) the amount of Support fees that would have been payable by Customer had Customer maintained Support between the date that Support for the Software lapsed (or, if the Customer did not purchase Support initially, the date that the Software was originally purchased) and the date that Support is reinstated (prorated, as necessary for any partial year) _multiplied by (b) 1.25. In addition to the reinstatement fee described above, Customer will be required to pay the then-current Support fee for the Support ordered. Unless JetStream Software expressly agrees to the contrary, Customer may make an initial purchase of Support only for the most current, generally available version of the Software.

3.4. Payment Terms. Unless a JetStream Software License Agreement or JetStream Software order document provides otherwise, the following shall apply: All Support fees and other payable amounts associated with this Policy are non-cancelable and nonrefundable, and shall be either in U.S. Dollars or if JetStream Software or an Authorized Third Party designates or applicable law requires, the local currency of the territory or jurisdiction in which Customer primarily resides. Payment shall be made to JetStream Software’s or an Authorized Third Party’s designated account or as otherwise designated by JetStream Software or an Authorized Third Party under this Policy. Late payments shall be subject to a late payment penalty calculated at the lesser of one and one-half percent (1.5%) per month or the maximum allowable by law. Except as required under applicable law or under Customer’s fully signed written agreement with JetStream Software or an Authorized Third Party, Customer is fully responsible for payment of all taxes, without reduction of any fees, charges or expenses paid by Customer or received by JetStream Software or an Authorized Third Party with respect to the Software and Support, including without limitation sales, use, value added, withholding or similar taxes, (excluding taxes based upon JetStream Software’s or an Authorized Third Party’s net income).

4. Customer Responsibilities. JetStream Software’s obligation to provide Support to Customer is conditioned upon Customer’s provision of: (i) sufficient information and data to allow JetStream Software to readily reproduce all reported Incidents; (ii) all necessary access to the Software and Customer personnel, including the ability to remotely access the Software, subject to Customer’s security procedures; (iii) documentation regarding all Incidents and Customer following the procedures specified in Section 2, and as directed by JetStream Software, taking all steps necessary to carry out procedures for the rectification of Incidents within a reasonable time after such procedures have been provided by JetStream Software; (iv) personnel trained in the use and application of the Software a reasonable number of trained individuals to serve as Authorized Contact(s); and (vi) all of Customer’s Service Requests and Support inquiries shall be initialized through the Authorized Contacts in accordance with the procedures specified in Section 2.

5. Disclaimer of Warranty: THIS POLICY DEFINES A SERVICE ARRANGEMENT AND NOT A PRODUCT WARRANTY. SUPPORT PROVIDED TO CUSTOMER HEREUNDER IS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. TO THE FLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, ARE DISCLAIMED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, CONDITION, OWNERSHIP, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR OF NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS AND ANY WARRANTIES ARISING DUE TO CUSTOM OF TRADE OR COURSE OF USAGE. FURTHERMORE, IN NO EVENT SHALL JETSTREAM SOFTWARE OR ITS LICENSORS IF ANY, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, EXPENSES, LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION, LOST BUSINESS INFORMATION, OR ANY OTHER DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE INCLUDING ASSOCIATED DOCUMENTATION AND MATERIALS, EVEN IF JETSTREAM SOFTWARE OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6. Liability: IN NO EVENT SHALL JETSTREAM SOFTWARE OR ITS LICENSORS IF ANY, BE LIABLE HEREUNDER TO CUSTOMER FOR CUMULATIVE DIRECT DAMAGES IN ANY AMOUNT GREATER THAN THE SUPPORT FEES PAID BY CUSTOMER TO JETSTREAM SOFTWARE FOR THE SOFTWARE GIVING RISE TO THE CLAIM(S) IN QUESTION DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF THE CAUSE OF ACTION.

7. Term; End of Life of Support.

7.1. Initial Term of Support; Renewals. Unless otherwise agreed by JetStream Software, the term of each subscription for Support under this Policy shall be for one (1) year from the delivery of the Software or (if applicable) the Software license key by JetStream Software (i) in the case of Customer’s initial order for Support for Software, or (ii) in the case of subsequent orders of Support for the same Software, the applicable anniversary of the commencement of Support for the Software, provided that the Customer has timely paid or, if applicable, has made a firm commitment to pay ( e.g. by purchase order) the associated Support fees. Unless Support is terminated by the Customer or JetStream Software in accordance with this Policy, or JetStream Software elects to cease Support for the Software as provided above, Support will automatically renew at the end of each annual Support period for additional one (1) year terms.

7.2. Termination of Support. Support may be terminated (a) by JetStream Software immediately upon notice to Customer if (i) Customer breaches any JetStream Software License Agreement or this Policy, (ii) JetStream Software terminates the applicable JetStream Software License Agreement for the Software, or (iii) Customer does not make timely payment of the applicable Support fees, (b) by Customer upon at least sixty (60) days’ advance written notice to JetStream Software prior to the conclusion of the then-current term of Support for the Software in question; or (c) by either party upon the bankruptcy or insolvency of the other party. Upon termination of Support, JetStream Software shall have no further Support obligations for the applicable Software. JetStream Software shall have no obligation to refund or credit any prepaid Support fees in the event of termination under this Section 7.2, even if termination occurs prior to the end of a Support period.

7.3. End of Life of Support for Specific Software. JetStream Software may elect, in its sole discretion, to cease providing Support for one or more versions of the Software at any time. In such cases, notice of the last date of availability of Support for the relevant version(s) of Software and any accompanying information will be posted on JetStream Software’s designated web portal (or a successor URL specified by JetStream Software). Notwithstanding anything potentially to the contrary in this Policy, JetStream Software shall not be obligated to provide Support (a) for a version of Software that is more than two (2) versions previous to the current version of such Software, nor (b) for a specific version of Software for more than two (2) years from its initial general availability unless agreed by JetStream Software. If JetStream Software elects to cease providing Support for a specific version of Software for which Customer has prepaid Support fees, and JetStream Software does not provide Support for the entire prepaid Support period by reason of the cessation, JetStream Software will, at JetStream Software’s option, either (i) provide Support to the Customer for that version of the Software until the end of Customer’s then-current Support period, at which time Support for that version will automatically terminate; or (ii) provide Customer with a prorated refund or credit of amounts actually received by JetStream Software for the Support (in which case Support will terminate automatically on the designated cessation date).

8. Confidentiality: Customer agrees that the Software (including any Updates) and any Support is proprietary and confidential information of JetStream Software and if applicable its third party licensors (“Licensors”). Customer shall strictly protect Software from unauthorized copying, modification or dissemination, both internally and to or by third parties. Customer shall not disclose the Software or any information or communications associated with Support to any third party without JetStream Software’s prior written consent. Customer shall not create nor disclose benchmarks or other performance comparisons of the Software and/or any Support without JetStream Software’s prior written consent. Customer acknowledges that JetStream Software may be irreparably harmed in the event of Customer’s actual or threatened violation of Customer’s obligations hereunder and that in addition to other remedies to which it may be entitled, JetStream Software shall be entitled to seek injunctive relief or any appropriate decree of specific performance for any actual or threatened violations or breach by or on Customer’s behalf. Customer grants JetStream Software and its Licensors a worldwide, irrevocable, perpetual, transferable, royalty-free license to copy, modify, create derivative works of, make, sell, offer to sell, distribute, publicly perform and publicly display any feedback (information, suggestions, ideas or comments) provided by Customer to JetStream Software regarding the Software or Support and any derivatives work thereof and to sublicense the foregoing rights with further right of sublicense.