Please read this document prior to commercially using the Product. By such use, you acknowledge that you have read this agreement, understand and accept all its provisions and intend to be legally bound by them. If you have purchased a physical appliance, the hardware is sold to you. Whether you have acquired a physical appliance or not, the Software, data and documentation are being licensed (i.e. not sold) to you. If you do not agree with this agreement, do not use the Product, notify the vendor in writing, and return the physical product to its place of purchase, or arrange with BlueCat for key removal for virtual product, within 15 days of delivery or download, as applicable, for a full refund.

END USER AGREEMENT

This Agreement ("Agreement") is entered into by BlueCat Networks (USA) Inc., with respect to Proteus Products and services, and BlueCat Networks, Inc., with respect to Adonis Products and services (collectively "BCN") and the entity that has acquired the Product(s) ("CUSTOMER").

1. DEFINITIONS

1.1 "Affiliate" means a Party's direct or indirect parent or subsidiary corporation, and any corporation with which the Party is under common control.

1.2 "Agreement" means this document, each Order and any document incorporated by reference.

1.3 "Authorized Contacts" mean those CUSTOMER employees or agents who have been authorized to submit Cases to BCN hereunder, including the Primary Administrator.

1.4 "Care" means BCN's then-current secure online self-service support mechanism, which provides a structured means of reporting and enquiring about Cases, and which provides access to a searchable knowledge base, support library, technical documentation and technical bulletins relating to our Product(s).

1.5 "Case" means a failure of the Product to conform to its Documentation, or an inquiry from a CUSTOMER relating to the operation or use of the Product.

1.6 "Confidential Information" of a Party means information not generally known to the public and may include, but is not limited to the terms hereof and:

a. computer software, know-how, technical data, research, products, business or financial information, plans or strategies, business practices, operations, procedures;

b. information about a Party's customers, suppliers, business partners, employees, research plans, data and results, computer systems and communications network, including information stored thereon;

c. the confidential components of Products supplied hereunder, including without limitation all information regarding BCN Products, methodology and work product, and future development or sales plans, all information with respect to the use, installation and operation of BCN Products or services, whether received by CUSTOMER from BCN or its representative or developed by CUSTOMER;

d. information which, due to its nature or the circumstances surrounding its communication, would be reasonably considered confidential by an independent person;

e. any other information of any nature, in any form, received from or belonging to such Party which is marked or identified as confidential;

f. any other oral or visual information of such Party identified as confidential at the time of disclosure, then summarized in writing and so provided to the receiving Party promptly thereafter; and third party information given to the discloser and subject to confidential obligations; which is acquired before or after the effective date by the receiving Party in its performance or receipt of Products or services hereunder, before or after the effective date.

1.7 "CPI" means the most recently published Consumer Price Index for "All Urban Consumers, U.S. City Average - All Items Less Food and Energy" published monthly by the U.S. Department of Labor, Bureau of Labor Statistics ("Bureau"), or, if the Bureau discontinues the publication of said index, or alters the same in a material manner, then a substitute index or substitute procedure to be agreed upon by the Parties, which reasonably reflects and monitors changes in consumer prices throughout the United States.

1.8 "Delivery" mean the physical shipment of the Product to the destination identified in the Order, or shipment by means of transferring electronically, or making a software Product, including a key if applicable, available for electronic transfer (including, but not limited to File Transfer Protocol ("FTP") download) by CUSTOMER.

1.9 "Error(s)" shall mean a fault in the Product which results in it failing to materially perform the functions specified in BCN's published applicable end user manual.

1.10 "Expiry Date" means the last day of the term of the then current contract for purchase of Support Services.

1.11 "Featurepack" means a group of features that have been unit-tested and regression-tested by BCN and released to add functionality to an existing version of the Software.

1.12 "Fixpack" means a group of fixes released by BCN that has been unit-tested and regression-tested by BCN and that is intended to provide a permanent Resolution for one or more Case(s).

1.13 "Hardware System" means the physical appliance (if any) purchased from BCN upon which the BCN software licensed to CUSTOMER resides.

1.14 "hereof", "hereunder", "hereto", "herewith" mean this Agreement not any particular section.

1.15 "Hotfix" means a fix or a group of fixes that BCN has unit-tested, but not regression-tested, and that is intended to provide a temporary, customer(s)-specific Resolution for a Case until BCN provides a corresponding Fixpack.

1.16 "Implementation" means usage of the BCN Product with CUSTOMER data in a production or test environment for the purposes of using the Product in production.

1.17 "Installation" means for physical Product, removal from the shipping boxes, and connection to network and power, and for virtual Product, installation on a server designated by CUSTOMER.

1.18 "Instance" means an object code only copy, made by CLIENT of the software Product downloaded as a file from BCN and installed on CUSTOMER's virtual server, in accordance with, and subject to, this Agreement.

1.19 "Instance Limits" means both: (a) the number of instances of the Product which CUSTOMER has the right to create, pursuant to the Order, subject to payment and compliance with this Agreement; and (b) restrictions on the use of each instance.

1.20 "Key" means a license key consisting of a series of numbers and/or letters provided by BCN to CUSTOMER to permit CUSTOMER to activate and use a defined (or unlimited) number of instances of the Product (each a Virtual Instance), as specified in CUSTOMER's Order, when passed to a verification function in the Product, which manipulates the key sequence according to a mathematical algorithm to verify compliance.

1.21 "Maintenance Release" means a release of the software released by BCN at regular intervals, which may not include new features, but may include Featurepacks, Fixpacks and/or Hotfixes.

1.22 "Major Release" means a release of the software that is signified by a change in the number to the left of the decimal point (e.g., version 5.x to 6.x).

1.23 "Minor Release" means a release of the software that is signified by a change in the number to the right of the decimal place (e.g., version x.1 to x.2).

1.24 "Order" means a written (including electronic) purchase order relating to the Product and/or services procured.

1.25 "Party" means either CUSTOMER or BCN, or an Affiliate who has acceded this Agreement.

1.26 "Primary Administrator" means an Authorized Contact who shall serve as the principal CUSTOMER liaison for all technical Support Services Cases.

1.27 "Product(s)" mean the appliances (and any standalone software) acquired by CUSTOMER pursuant to the Order, and BCN's then applicable version of the end user manual.

1.28 "Product Warranty Period" means thirty (30) days from Product Delivery (if not installed by BCN) or from Installation (if installed by BCN).

1.29 "Resolution" means, with respect to a reported Case, correction or reasonable mitigation of the Case, and which may, dependent on the nature of the Case, be accomplished by means of one or more of the following:

a. direct telephone support from BCN's Support Desk or other personnel;

b. the recommendation by BCN of a Workaround (which may include a Hotfix) reasonably acceptable by the CUSTOMER;

c. the Delivery by BCN of a patch or similar direct code correction to the underlying software;

d. the Delivery by BCN of a new Maintenance Release, Minor Release or Major Release version(s) of the Software, or

e. the Delivery of a replacement part or unit for the Hardware identified as the cause of the Case.

1.30 "Severity Code" means the system impact of a Case, as established in accordance with Table A1 below.

1.31 "Site" means the destination location specified in the accepted Order (or in the case of downloaded product means the geographic location where the computing device upon which the Product is downloaded, is physically locate, as specified in the accepted Order).

1.32 "Support Handbook" means a BCN document that describes standard processes and best practices by which CUSTOMER accesses technical Support Services hereunder, as updated by BCN from time to time.

1.33 "Support Desk" means the technical help desk, from which BCN shall provide Case support to the CUSTOMER.

1.34 "Support Services" means technical support, and, if purchased by CUSTOMER, Technical Account Management, in addition to any and all other services or entitlements provided hereunder.

1.35 "Support Services Start Date" means the commencement date of Support Services provided hereunder, as described in the applicable Order.

1.36 "Term" means: (a) perpetual for the license of a Product acquired for fair market value, unless a shorter period has been agreed upon by the Parties, (b)  thirty (30) days for the license of a Product provided for free for evaluation purposes only; and (c) the designated term of the Support Services purchased by CUSTOMER in an Order; unless in any such  case earlier terminated as permitted hereunder.

1.37 "Updates" means Major Releases, Minor Releases and Maintenance Releases.

1.38 "Workaround" means a process or procedure, or series thereof that allows the effects of a Case to be mitigated or overcome by CUSTOMER. A Workaround may be achieved by CUSTOMER by a number of possible methods, including, without limitation:

a. data manipulation;

b. variation of a standard process;

c. implementation of a manual process.

1.39 "written", "in writing" mean any non-oral communication that is reduced to a human readable format, including handwriting, a printed form, and an email.

2. SCOPE

During the Term, BCN shall make available to CUSTOMER for purchase: (a) certain equipment, limited licenses to use embedded or standalone software (but not to purchase any other rights in the software), and all related generally available end user manual documentation, collectively comprising the Products, and (b) services, as more particularly described in sections 5 ("Delivery, Installation, Implementation"), and 11 ("Training and Product Maintenance") to the extent acquired pursuant to any Order. If CUSTOMER is acquiring without fair value payment, for evaluation purposes, then BCN shall make available to CUSTOMER for loan, the Product, for the Term set out in the quote for the loan. If there is no Term set out in the quote, the loan Term for evaluation purposes shall be thirty (30) days from the date of Delivery. If CUSTOMER is subscribing for managed external DNS services (“MEDNSS”), the terms and conditions of SCHEDULE B “Managed DNS Services Agreement” (and NOT this Agreement) shall apply to such subscription and delivery of the MEDNSS.

3. ORDERS

3.1 CUSTOMER may order Product and services, subject to the terms and conditions hereof, by sending to BCN, a written Order, which once accepted in writing by BCN, becomes binding, and is an integral part hereof, incorporated by reference. Notwithstanding anything else herein, or in any Order, whether the Order is issued and accepted before or after CUSTOMER has agreed to the terms of this contract, no terms in any Order, other than the identification of the Product or service, the price and the quantity of Product (and price, type, duration or level of service) desired, the address for invoicing, and the required delivery date and Delivery Site(s) shall bind BCN.

3.2 CUSTOMER shall be entitled to order Product or services pursuant hereto for its Affiliates, so long as: a) neither Customer nor the Affiliate, or the Delivery Site, is located in a country to which US or Canadian export or sale restrictions prohibit the export, sale or Delivery of the Product or service; b) the Affiliate agrees in writing with BCN to be bound by the terms hereof; and c) CUSTOMER and Affiliate are jointly and severally liable for any breach.

4. RISK OF LOSS AND TITLE

Risk of loss or damage to Product, and title, shall pass to CUSTOMER upon delivery of Product into the possession and custody of the shipper to the CUSTOMER (as evidenced by a confirmed receipt) or in the case of a virtual product, upon delivery of the initial key to the CUSTOMER. Delivery shall be made to the Site. BCN shall arrange for shipping and insurance of physical Product, but CUSTOMER shall reimburse BCN for same incurred by BCN. Title does not transfer for a unit provided on an evaluation loan basis.

5. DELIVERY, INSTALLATION, IMPLEMENTATION

5.1 BCN shall arrange for delivery of all Product specified in the Order to the Site, within five (5) to ten (10) business days of the delivery date specified in the Order.

5.2 Subject to a mutually agreed upon Order for Installation services, BCN shall install the initial Product at CUSTOMER's (or subject to 3.2, any Affiliate's) Site and the Product warranty shall be effective the date of Installation by BCN, and otherwise, shall be effective upon Delivery. Subject to a mutually agreed upon Order and statement of work for Implementation services, BCN shall implement the initial Product at CUSTOMER's (or subject to 3.2, any Affiliate's) Site.

6. PRICING AND PAYMENT

6.1 Purchase prices for Product and any services shall be specified in the particular Order.

6.2 In addition to all other charges specified herein, BCN shall invoice CUSTOMER for, and CUSTOMER shall pay, all taxes of any nature or kind arising from this Agreement or provision of any Product or services hereunder, excepting taxes on BCN's net income.

6.3 BCN shall issue invoices (including Product prices, shipping, insurance and any applicable installation fee, plus taxes), for Orders upon Delivery of the Product to CUSTOMER's designated Site. The fees for the training services described in Section 11 shall be invoiced upon completion of such services. CUSTOMER shall pay all valid invoices rendered per this Agreement within thirty (30) days of the date of the invoice (which, for Product and training, shall not be prior to delivery date of the Product or service ordered). If purchased, then Support Services shall be prepaid for the applicable Support Services Order term.

7. SOFTWARE LICENSE

7.1 The Product is comprised of Software, or includes embedded Software. Subject to the terms hereof, a non-exclusive, worldwide, non-transferable, non-sublicensable, license or sublicense of the object code version only, for use within the Product is granted by BCN to CUSTOMER, during the Term, but solely for use within the hardware versions of Product (if applicable), and in any event only for CUSTOMER's internal needs in connection with its business.

7.2 Except as otherwise provided herein, CUSTOMER will not: (i) modify, translate or copy the software or any Product except, where the Product is software licensed independent of an appliance, to make one copy of the software solely for each of backup and archival purposes; (ii) use the Product except as is contemplated by the end user manual documentation; (iii) reverse engineer, create derivative works based on,  decompile or disassemble the software or the Products (except to the extent applicable law overrides); (iv) use the Product, except as authorized herein; (v) rent, or lease; (vi) use the software on equipment not provided by BCN; or (vii) remove any proprietary notice, labels, or marks on the software or Product, documentation, and containers. CUSTOMER will take all reasonable precautions to prevent third parties from using the Products or any part thereof in any way that would constitute a breach hereof.

7.3 CUSTOMER shall not use the Products until it agrees to any license for third party software within the Product, required by its supplier, of which BCN advises CUSTOMER in advance of CUSTOMER's acquisition. BCN bears no responsibility whatsoever respecting third party software requiring a separate license, including without limitation responsibility to enhance the Product to achieve or maintain compatibility with such third party software or enhancements thereto, or to maintain third party software. BCN bears no responsibility whatsoever respecting compatibility of the Product with, or capacity limitations of, third party products not provided by BCN, including without limitation responsibility to enhance the Product to achieve or maintain compatibility with such third party products or enhancements thereto, or to maintain third party products.

7.4 Notwithstanding anything else in this s.7 "Software License" a unit provided on an evaluation loan basis shall only be used by CUSTOMER in a non-production laboratory environment, for internal testing purposes only, to determine whether to acquire the Product for fair market value, and only at the Site to which shipped or downloaded. A copy of the results of the evaluation shall be provided to BCN, but not to any third party. No reviews may be published or provided to third parties. All rights and ownership in the Product shall at all times remain solely with BCN.

8. WARRANTIES

8.1 BCN warrants that: (A) it shall provide to CUSTOMER, upon delivery to the shipper or download to the Site of the software or key, unencumbered good title to the hardware components (if applicable), and a valid license for the software components, of the Product; (B) the Product and any services shall comply with all applicable governmental regulations; (C) it is a duly authorized licensor of the software which it purports to license, and owner of the hardware sold, pursuant hereto; (D) during the Warranty Period the Product shall: (i) be free from material defects in materials and workmanship; and (ii) be free from material Errors; (E) it has taken commercially reasonable steps, in keeping with currently available technology and industry standards, to eliminate any codes, commands or instructions, including viruses, time bombs, worms, and trojan horses, that may, or may be used to, access, alter, delete, damage or disable the Product, save and except that CUSTOMER acknowledges that it has acquired a time limited license, for the applicable license Term, after which time BCN has the right to disable the Product, or after which time the Product may not function; and (F) if CUSTOMER has provided an Order to BCN for Installation, Implementation, training or Support Services, the applicable services will be performed: (i) in a professional manner using an adequate number of qualified, experienced BCN representatives familiar with the Products, and (ii) pursuant to the applicable requirements per the Order. CUSTOMER agrees to use the Products only for the purposes, and in the manner, stipulated in the end user manual.

8.2 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THERE ARE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, COMMON LAW, STATUTORY OR OTHERWISE, RELATING TO THE PRODUCTS, OR SERVICES INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. THE PARTIES HEREBY EXPRESSLY EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. Warranties herein will not extend to any Product: (A) operated with software or hardware unapproved in writing by BCN; (B) subjected to service not authorized by BCN; or (C) used other than in accordance with the end user manual provided by BCN. Where BCN reasonably believes the defects for which warranty service has been claimed arise from use of non-approved software, hardware or service, or use other than in accordance with the end user manual, CUSTOMER shall bear all costs associated with Product repair and replacement including without limitation, parts, labour, shipping and insurance charges and BCN travel and accommodations costs and reasonable compensation for BCN's time. BCN does not warrant the Products will satisfy CUSTOMER's needs or operate error or interruption free, or that all errors will be detected and corrected.

8.3 REPLACEMENT OR REFUND. If, during the Product Warranty Period, the Product fails to operate in accordance with the warranty, and the failure is reproducible, CUSTOMER shall notify BCN, via telephone, of Product failure and obtain a Return Material Authorization ("RMA") number. All warranty claims, correspondence and warranty service requests must specify both the model name and serial number of the Products (and verified individual license key number if applicable) and are to be directed to BCN pursuant to its then current RMA procedure. During the Product Warranty Period, BCN shall (at BCN's option), at no additional charge to CUSTOMER, repair or replace any defective hardware or software returned by CUSTOMER to BCN pursuant to the RMA process, or (at BCN's option), refund the price for that unit.

8.4 NOTWITHSTANDING ANYTHING ELSE IN THIS S.8 WARRANTIES OR S.9 LIMITATION OF LIABILITY, A UNIT PROVIDED ON AN EVALUATION LOAN BASIS IS PROVIDED "AS IS, WHERE IS" WITH NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND IN NO EVENT, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, INCLUDING WITHOUT LIMITATION FOR FUNDAMENTAL BREACH, WILL BCN BE LIABLE TO CUSTOMER FOR DIRECT OR INDIRECT DAMAGES, (INCLUDING, WITHOUT LIMITATION: (A) PUNITIVE, EXEMPLARY OR AGGRAVATED DAMAGES; (B) DAMAGES FOR LOSS OF PROFITS OR REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS, BUSINESS INTERRUPTION, LOSS OF USE OR UNAVAILABILITY OF FACILITIES, INCLUDING WITHOUT LIMITATION COMPUTER RESOURCES AND ANY STORED DATA OR INABILITY TO PROCESS DATA; (C) INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES; (D) INJURY OR LOSS TO CUSTOMERS; OR (E) (SUBJECT TO S.10) CONTRIBUTION OR INDEMNITY IN RESPECT OF ANY CLAIMS AGAINST CUSTOMER), IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT HOWEVER CAUSED, AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPORSE. BCN HAS ADVISED AND REQUIRED CUSTOMER ONLY TO TEST/EVALUATE THE PRODUCT IN AN INTERNAL LABORATORY ENVIRONMENT ONLY.

9. LIMITATION OF LIABILITY

9.1 BCN liability and CUSTOMER's remedy under the warranties herein will be limited to the repair and/or replacement (with product of equal or greater functionality), of defective or non-conforming units of Products, or termination and refund of CUSTOMER's unamortized or unexpensed acquisition price, in each case at BCN's sole election.

9.2 Each Party's liability to the other for any claim, demand or cause of action ("Claim"), based on contract, tort or otherwise, or for any losses, damages, costs and expenses (including but not limited to legal fees) (collectively, "Losses") arising out of or resulting from this Agreement (other than for Claims or Losses arising out of breach of the confidentiality and license restrictions, and other than Claims for personal injury, death or damage directly caused to tangible property), relating to a Product, will not exceed the aggregate of all amounts paid and owing to BCN under the particular Order for the Product giving rise to the claim; and relating to a service, will not exceed the aggregate of all amounts paid and owing to BCN under the Order for the applicable service in the prior six (6) months.

9.3 OTHER THAN FOR CLAIMS OR LOSSES ARISING OUT OF BREACH OF THE CONFIDENTIALITY AND/OR LICENSE RESTRICTIONS, NOTWITHSTANDING ANY OTHER PROVISION HEREOF, IN NO EVENT, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, INCLUDING WITHOUT LIMITATION FOR FUNDAMENTAL BREACH, WILL EITHER PARTY BE LIABLE TO THE OTHER FOR: (A) PUNITIVE, EXEMPLARY OR AGGRAVATED DAMAGES; (B) DAMAGES FOR LOSS OF PROFITS OR REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS, BUSINESS INTERRUPTION, LOSS OF USE OR UNAVAILABILITY OF FACILITIES, INCLUDING WITHOUT LIMITATION COMPUTER RESOURCES AND ANY STORED DATA OR INABILITY TO PROCESS DATA; (C) INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES; (D) INJURY OR LOSS TO CUSTOMERS; OR (E) (SUBJECT TO s.10) CONTRIBUTION OR INDEMNITY IN RESPECT OF ANY CLAIMS AGAINST CUSTOMER, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT HOWEVER CAUSED, AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPORSE. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT IS RESPONSIBLE FOR THE BACK UP OF ITS OWN DATA; AND FOR TIME LIMITED LICENSES, FOR (A) ACQUIRING THE PRODUCT FOR USE DURING A SPECIFIC, LIMITED, TERM; AND (B) RESPONSIBLE FOR ENSURING THAT CUSTOMER EITHER RENEWS THE LICENSE PRIOR TO EXPIRY, OR ARRANGES FOR TRANSITION TO AN ALTERNATIVE SOLUTION SATISFACTORY TO ITS NEEDS PRIOR TO THE EXPIRY DATE OR OTHER TERMINATION OF THE AGREEMENT. CUSTOMER AGREES THAT BCN IS NOT LIABLE FOR ANY DAMAGE OF ANY NATURE OR KIND, ARISING FROM BCN FAILURE TO REMIND CUSTOMER OF THE EXPIRY DATE OR OTHER TERMINATION OF AGREEMENT FOR THE PRODUCT, OR THE TERMINATION OR REDUCTION IN FUNCTIONALITY ARISING FROM CUSTOMER'S FAILURE TO BACK UP, RENEW OR TRANSFER TO AN ALTERNATIVE IN A TIMELY FASHION.

10. IP OWNERSHIP AND INFRINGEMENT INDEMNIFICATION

10.1 All worldwide propriety rights respecting intellectual property in any form or on any media related to BCN's Confidential Information or to the intellectual property in or derived from any Products supplied by BCN to CUSTOMER hereunder, including the structure, organization and design of hardware (if any) and software included as part of the Products, are and will remain the proprietary and valuable intellectual property of BCN and/or its licensors or suppliers, as applicable, including moral rights.

10.2 If any third party claims or asserts in any suit, that CUSTOMER's or its Affiliate's permitted use of the Product or any portion thereof infringes or violates any intellectual property right, CUSTOMER shall promptly notify BCN thereof and BCN shall, at its own expense, defend such action and indemnify and hold harmless the indemnitee from and against any award of damages in favour of the third party (notwithstanding the limitation on direct damages in s.9.2 above), and attorneys' fees arising therefrom or caused thereby. BCN may, at its expense, and its sole option, (i) procure for the indemnitee the right to use the Product, or applicable portion thereof; (ii) modify the same so that it is no longer infringing, but still substantially conforms to the end user manual; or (iii) terminate this Agreement entirely or as it relates to the Product or units or components of the Product which are the subject of the suit, and (upon return of the Product (or certified destruction for non-physical Product) to BCN if BCN's requests), refund to indemnitee the unamortized or unexpensed portion of the purchase price or license fee of the applicable Product or units or components thereof, per CUSTOMER's generally accepted accounting procedures.

The foregoing indemnity obligation shall not extend to any claims of infringement arising out of or related to (i) a modification of the Product by anyone other than BCN or its duly authorized agents; (ii) the incorporation into a Product of any information provided by or requested by or on behalf of CUSTOMER; (iii) a combination of the Product with any other software or equipment where the infringement or misappropriation would not exist without such combination; or (iv) the use of a version of the Product other than the then-current version if infringement would have been avoided by using of the then-current version. Notwithstanding anything else in this s.10 "IP Ownership and Infringement Indemnification", with regard to a unit provided on an evaluation loan basis, the s.10 indemnity obligation shall not extend to any claims of infringement, or to any damage awarded, to the extent the claim or damage arose because of a failure of CUSTOMER to use the Product solely in a non-production environment and solely to test whether or not to acquire the Product for commercial use.

11. TRAINING AND SUPPORT SERVICES

Upon the terms of a mutually agreed Order issued by CUSTOMER to BCN directly, BCN shall provide: (a) training in the use of the Product sufficient to enable trainees to have a working knowledge and proficiency in normal operation of the Product; (b) Support Services as set out in Schedule A attached.

12. TERMINATION

If either Party fails to perform any material obligation contained in this Agreement and such breach remains uncured for thirty (30) days after written notice from the other Party; or a petition is filed by or against a Party under bankruptcy (or any other insolvency) laws providing for relief of debtors, and in the case of an involuntary petition, said Party does not have such petition lifted or stayed within sixty (60) days from its entry date, the other Party may terminate this Agreement immediately and exercise such other remedies as may be available at law and/or in equity. If a Support Services Term extends beyond a license Term, BCN is only obliged to provide Support Services for the balance of the Support Services Term if CUSTOMER purchases an extension of the License Term for at least the balance of the Support Services Term.

13. SURVIVING PROVISIONS

Sections 1, 8.2, 9, 10, 13, 14, 16, 18, 19, 20, 21, 22 and 26, shall survive termination of this Agreement for any reason.

14. NOTICES

Any notice required or permitted to be given hereunder shall, except where specifically provided otherwise, be given in writing to the person listed below by personal delivery, registered/certified mail, return receipt requested, confirmed FAX or via courier, and the date upon which such notice is so confirmed received shall be deemed to be the date of such notice, irrespective of the date appearing thereon:

If to BCN: c/o BlueCat Networks, Inc., 4101 Yonge St., Suite 502, Toronto, Ontario, Canada, M2P 2C9, Attention C.F.O. with a copy to General Counsel at the same address.

If to CUSTOMER: at the address in an Order, or addressed to a Party's designated recipient at such other address as that Party may have given by written notice in accordance herewith.

15. NO ASSIGNMENT

Except in the context of a sale of substantially all of its assets to a third party, neither BCN nor CUSTOMER may assign any of its rights or any of its duties pursuant to this Agreement without the prior written consent of the other, not to be unreasonably withheld or delayed. Any attempted assignment without such consent shall be void.

16. USE OF NAME

Neither Party shall use the other's name or logo without prior written consent, save and except that BCN may list CUSTOMER as a customer in sales and marketing materials. Neither Party shall disparage the other.

17. INSURANCE

BCN shall, at its own cost and expense, obtain and maintain in full force and effect, during the term of this Agreement, commercially reasonable insurance, and shall provide CUSTOMER with a certificate of the insurance coverage upon request.

18. CONFIDENTIAL INFORMATION

A Party will use the same care to avoid disclosure of any Confidential Information received from the disclosing Party as it uses with its own similar information it does not wish to disclose. A receiving Party: (a) will use disclosing Party's Confidential Information only to aid performance of its obligations or full enjoyment of its rights hereunder; and (b) will not disclose same except to its employees or agents on a need to know basis, who have first agreed to be bound by this obligation in favour of the disclosing Party. In any event, receiving Party will be responsible and liable for unauthorized use or disclosure by its employees or agents. Neither Party shall reproduce or use the Confidential Information except as otherwise provided herein. All copies shall contain the same proprietary notices and legends appearing on the original information. Each Party, upon request of the other, shall return, and cause its employees or agents to return or destroy, all copies of the other's Confidential Information. Receiving Party shall advise disclosing Party of any loss, or unauthorized use or disclosure of any Confidential Information, promptly upon discovery of such event. Notwithstanding the foregoing, Confidential Information obligations do not apply if such information: i. was known to receiving Party when disclosed as evidenced by any written documents possessed by receiving Party; ii. is available to the general public when disclosed to receiving Party or thereafter, without restrictions as to its use or disclosure, without fault of receiving Party; iii. is disclosed to receiving Party by another Person having the right to disclose same; iv. is information receiving Party is compelled to disclose by law/government order; or v. is reasonably required to be disclosed to a court to permit it to decide the Parties' rights hereunder, provided reasonable steps are taken to protect against further disclosure or use.

19. SEVERABILITY

If any term or provision of this Agreement should be declared invalid or unenforceable in any circumstances by a court of competent jurisdiction, the remaining terms and provisions and the enforceability of such provisions in any other circumstances shall be unimpaired, and the Parties shall substitute a valid, legal and enforceable provision as close in legal and economic consequences as possible to the provision struck down. If the Parties cannot do so, either may request the competent jurisdiction which made such declaration to do so, and if it declines, either may apply for arbitration to do so.
 
 

20. NO WAIVER; CHANGES

No failure or delay of either Party to exercise any rights or remedies under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of the same or other rights or remedies preclude any further or other exercise of the same or other rights or remedies, nor shall any waiver of any rights or remedies with respect to any circumstances be construed as a waiver thereof with respect to any other circumstances. The terms and conditions of this Agreement may not be amended, waived, or modified, except in writing signed by the Party to be charged therewith. Upon expiry of the license Term, BCN may, but has no obligation to, continue provision of the Product. BCN may provide a grace period, during which CUSTOMER is permitted to renew after expiry, but BCN is not required to do so. BCN is not liable for any failure to provide a grace period, or having provided a grace period, estopped from relying on its rights to fail provide any subsequent grace period.

21. ENTIRE AGREEMENT

This Agreement constitutes the entire agreement between CUSTOMER and BCN with respect to the subject matter hereof, and supersedes all proposals, oral or written, and all other communications between the Parties with respect to such subject matter. In the event of a conflict between this Agreement and any Order or any purchase order of any kind, this Agreement prevails.

22. DISPUTE RESOLUTION; LAW AND VENUE

22.1 Arbitration. Subject to the limitations imposed by all applicable statutes of limitation, and unless prohibited by law, either Party shall have the right to submit any dispute to arbitration by serving a demand for arbitration in writing on the other Party and filing same with the AAA.

22.2 The Parties agree that all disputes, claims or causes of action arising out of or relating to this Agreement, or the validity, interpretation, breach, violation, or termination thereof, shall be finally and solely determined and settled by arbitration to be conducted in Toronto in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. Any Arbitration commenced pursuant hereto shall be conducted by one neutral arbitrator with a minimum of ten (10) years commercial experience with information technology systems contracts and intellectual property. In the event of any inconsistencies between the terms and conditions of this Agreement and those of the AAA Commercial Arbitration Rules, the terms and conditions hereof shall control. Nothing herein shall restrict the ability of either Party to seek or obtain equitable (including injunctive) relief. This Agreement shall be construed in accordance with the laws of: (a) New York state and the USA applicable therein for USA customers, and (b) Ontario and Canada applicable therein, for non-USA customers, excepting in each case its choice of law provisions.

23. FORCE MAJEURE

Neither Party shall be held responsible or in any manner liable for damages, nor be deemed in breach of this Agreement, by reason of delays or inability to perform caused by circumstances beyond such Party's reasonable control, including, without limitation, terrorism, fire, explosion, flood, acts of God, and governmental acts.

 

24. ILA

Each Party acknowledges it has had an opportunity to obtain independent legal advice. The limitation of liability provisions herein reflect an informed voluntary allocation of risk (known and unknown) that may exist in connection with provision of Products and services hereunder, and represent a material part hereof. To the extent allowed by applicable law, the remedies provided in the limited warranty shall be Customer's sole and exclusive remedies.

25. U.S. GOVERNMENT END-USERS

Each Product is a "commercial item", as defined at 48 C.F.R. 2.101 (OCT 1995), consisting of "commercial computer software" and "commercial computer software documentation", as such terms are used in 48 C.F.R. 12.212 (SEPT 1995), and is provided to the U.S. Government only as a commercial end item. Government and users acquire the Products under the following terms: (i) for acquisition by or on behalf of civilian agencies, consistent with 48 C.F.R. 12.212 (Sept 1995); or (ii) for acquisition by or on behalf of the Department of Defense, consistent with 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995); each C.F.R. as amended from time to time.

26. NONSOLICITATION

The Parties agree that during the term and for twelve (12) months thereafter, neither will, directly or indirectly through another entity: (a) induce or attempt to induce any employee of the other or any of its Affiliates to leave the employ of the other or such Affiliate; (b) hire any person who was an employee of the other within the past twelve (12) months prior to commencing employment with the hirer or any of its Affiliates; or (c) in any way interfere with the relationship between any customer, supplier, licensee or business relation of the other or any of its Affiliates.

27. LAB UNITS AND COLD SPARES

If CUSTOMER acquired a unit of Product for use in a laboratory environment, or as a cold spare, then that product unit is provided "as is" with no warranty (until in the case of a cold spare only it is used on a production basis and the product unit it is replacing is returned to BCN (or at BCN's option, certified destroyed), at which time the other warranties in this Agreement applicable to the returned (or destroyed) unit are transferred to the cold spare unit). For laboratory units the warranties and indemnities herein apply only for claims arising from, and for damage arising solely from, non-production use.

28. CONFLICT

In the event of a conflict between the version of the Agreement attached to, or referred to, in CUSTOMER's accepted quote, and the version in CUSTOMER's acquired Product, the more recently published version prevails.

 29. EXPORT COMPLIANCE ASSURANCE

CUSTOMER acknowledges that all Products are subject to the United States (U.S.) and other government export control and economic sanctions laws. CUSTOMER agrees that neither it nor its subsidiaries or affiliates will directly or indirectly export, re-export, transfer, or release, (herein referred to as "export"), any such Products or any direct product thereof to any destination, person, entity, or use it for any end-use prohibited or restricted under such laws without prior government authorization as applicable, either in writing or as permitted by applicable regulation. The U.S. government currently maintains embargoes and sanctions against the countries listed in the Export Administration Regulations, Country Groups E:1 and E:2 to Part 740, Supplement 1, www.http://www.access.gpo.gov/bis/ear/pdf/740spir.pdf. Canada maintains a substantially similar list. The current list of embargoed or sanctioned countries to which BlueCat Networks cannot export consists of Byelorussia, Cuba, Iran, North Korea, Sudan, and Syria. These lists are amended from time to time and all such amendments shall apply.

30. INTERPRETATION

In this Agreement, singular includes plural, male includes female, and vice versa.

If, on orprior to Term expiry of the evaluation loan, CUSTOMER has elected to purchase,for a term beyond the evaluation term, the acquisition shall be subject to theterms of this Agreement for non-evaluation acquisitions. If CUSTOMER does notso elect, then the right to use the Product expires. If the Product isphysical, CUSTOMER shall contact BCN to obtain an RMA# and additional relevantinformation necessary for return of Product to BCN. Returns shall be in thesame condition received, at the CUSTOMER's expense and risk, reasonable wearand tear excepted, and shipped, in the original, (or equivalently protective),packaging. If CUSTOMER elects to commercially acquire, then CUSTOMER's issuanceof the purchase Order constitutes acceptance of the Agreement terms. CUSTOMERshall not deploy in a production environment without purchasing. BCN recommendsthat CUSTOMER engage BCN or its authorized agents for Implementation in aproduction environment.

SCHEDULE A: CUSTOMER CARE - TECHNICAL SUPPORT SERVICES

Schedule A applies if  CUSTOMER has purchased support services pursuant to which BlueCat Networks provides all tiers of support (first, second and third tier) directly to CUSTOMER. If CUSTOMER has purchased support pursuant to which a third party, (such as a reseller or systems integrator),  provides first, or first and second line, support directly to CUSTOMER, Schedule A does not apply. CUSTOMER’s support agreement with the third party would then apply.

A.1 TERM OF SUPPORT SERVICES

a) Initial Term. If Support Services have been purchased, the initial term of Support Services shall be from the Support Services Start Date until the Expiry Date. If a Support Services Term extends beyond a license Term, BCN is only obliged to provide Support Services for the balance of the Support Services Term if CUSTOMER purchases an extension of the License Term for at least the balance of the Support Services Term. Renewal of the license Term (purchase of an extension and new key) does not automatically extend the Support Services Term. Renewal of the Support Services Term does not automatically extend the license Term.

b) Renewal Terms. If purchased, then subject to A.1(c), the term of Support Services shall automatically renew for successive one (1) year periods on the Expiry Date. Renewal occurs, at the then-current rates (subject to A.2(d)).

c) Termination. CUSTOMER shall be entitled to terminate Support Services (or only the Technical Account Management element thereof) by providing written notice to BCN not less than sixty (60) days prior to the Expiry Date.

d) Reinstatement. Should CUSTOMER terminate (or choose not to renew) annual Support Services and subsequently re-instate them, CUSTOMER shall be responsible for payment of all Support Services fees that would have regularly been incurred during the period between termination/non-renewal and reinstatement. BCN reserves the right to require a billable 'system health check' to ensure that Customer's infrastructure and Product software are in a supportable state prior to reinstatement.

e) Fees. BCN may increase Support Service fees once per year during the term of the Support Services, by the greater of: (i) CPI for the corresponding period (i.e. since the commencement of the term or since the last Renewal Date); or (ii) five percent (5%). Support Services are not included in your license fee, and the Support Services fee does not include payment for any license fee or renewal thereof. Support Services are only available if separately purchased and if your account is in good standing.

f) Product Retirement.

1. BCN is entitled to discontinue Support Services for a version of a Product at any time.

2. Absent an emergency, BCN will endeavor to notify CUSTOMER in writing six (6) months prior to BCN's discontinuance of Support Services provided to CUSTOMER for: (i) one or more applicable versions of the software for (or comprising) the applicable Product, and/or (ii) the Hardware System.

3. Notwithstanding A.1(f)1 and 2, CUSTOMER shall be entitled to continue to receive all Support Services for such discontinued:

(A) Product until the end of the CUSTOMER's then current contract for purchase of Support Services that is in force as of the effective date of such notice; and

(B) Hardware Systems for up to three (3) years from the unit's purchase date; provided CUSTOMER maintains an active, and uninterrupted, Support Services contract in good standing for the Product.

4. After the discontinuance period has expired, CUSTOMER may purchase support. However, such Support Services shall exclude Updates. By way of illustration only, assume a January 1, notice of discontinuance, advising that software version 5.0 is being discontinued on June 1, and replaced by version 5.5. Assume CUSTOMER has purchased support for version 5.0 through September 30, and CUSTOMER does not wish to upgrade from version 5.0 to version 5.5. BCN will continue to support version 5.0 for CUSTOMER through September 30, but such support will not include Updates between said June 1 and September 30. Thereafter, CUSTOMER may still purchase technical support, for the immediately following term, conditional upon it upgrading to the then current Release. Alternatively, CUSTOMER may continue to use and obtain SUPPORT SERVICES for a discontinued version for a term and at a price mutually agreed upon by CUSTOMER and BCN.

g) Suspension of Services. If CUSTOMER is in breach of its obligations under the Agreement, BCN shall be entitled to suspend the provision of Support Services hereunder until such breach is remedied in full by CUSTOMER. If the breach remains unremedied thirty (30) days following notice from BCN to CUSTOMER of said breach, BCN may terminate its obligation to provide Support Services for the balance of the term, immediately upon delivery of written notice of such termination to CUSTOMER.

A.2 SCOPE OF SUPPORT SERVICES

a) Authorized Contacts. Only Authorized Contacts shall be entitled to access Support Services hereunder.

b) Version Support. BCN shall provide Support Services hereunder for Cases in respect of the current Major Release of the software and the previous Major Release. Cases pertaining to versions prior to the previous Major Release of the software are not eligible for Support Services. BCN shall use reasonable commercial efforts to provide at least six (6) months' prior notice to CUSTOMER of the end of support for a particular Major Release.

c) Language. BCN shall provide Case Support described herein in English.

d) Enhancements and Program Changes. BCN shall be entitled to continue to reasonably develop the Support Services provided to CUSTOMER and the processes through which they are made available to CUSTOMER. BCN shall notify CUSTOMER of any such changes within an updated Support Handbook or otherwise from time to time. If BCN alters the scope of such Support Services during the term hereof in such a way as to materially and adversely impact CUSTOMER's ability to make use of such Support Services, CUSTOMER shall be entitled to terminate the term upon sixty (60) days' prior written notice to BCN.

A.3 LIMITATIONS

BCN has no obligation to provide any Support Services if: i) CUSTOMER has modified or attempted to modify the Product without BCN's written authorization (including, without limitation, opening the Product's shell); ii) CUSTOMER is attempting to use the Product with hardware or software (including operating system software) other than those specifically recommended by BCN; iii) BCN has not received payment; or iv) BCN determines that the cause of the Error or problem is the malfunctioning or failure of any hardware, software or other item not furnished by BCN. Any Support Services provided in any such situation is without warranty of any nature or kind.

BCN Support Services do not include: (a) support, installation or upgrades for any third Party non-BCN products not provided by BCN; (b) onsite services unless specifically and separately agreed upon; (c) implementation of Updates (including any data migration for such implementation); or (d) any professional services work under a separate statement of work.

a) Authorized Contacts. CUSTOMER shall appoint up to 3 named individuals, including a Primary Administrator, as Authorized Contacts, who shall be entitled to access Case Support hereunder.

CUSTOMER shall be entitled to replace Authorized Contacts upon reasonable notice to BCN at any time during the term of Support Services, provided however that the total number of Authorized Contacts at any time shall not exceed the maximum number identified above. BCN reserves the right to limit designation of Authorized Contacts to individuals with a demonstrated ability to perform this function.

For security and confidentiality purposes, each Authorized Contact must include the specific individual's email address, rather than a distribution list.

b) Primary Administrator.

i. Appointment. CUSTOMER shall designate one Authorized Contact as Primary Administrator. CUSTOMER shall also identify one alternate Authorized Contact to fulfill all responsibilities of the Primary Administrator if the Primary Administrator is unavailable. Only one individual shall fulfill the function of Primary Administrator at any given time.

ii. Responsibilities. The Primary Administrator (or the alternate, if applicable) shall be responsible for ensuring CUSTOMER's compliance with the "CUSTOMER Responsibilities" articulated in Article 7 hereof, and shall be responsible for the following:

• Avoidance of submission by CUSTOMER of duplicate Cases;

• Conducting or ensuring knowledge transfer within CUSTOMER's organization relating to incoming and resolved Cases;

• Co-ordination of CUSTOMER's Case resolution priorities; and

• Resolution of escalation from BCN to CUSTOMER in relation to any Support Services issues.

A.4 TECHNICAL SUPPORT

a) Support Desk. For the Support Services term, BCN shall provide all Authorized Contacts with access to the Support Desk for CUSTOMER's Case Support inquiries. The Support Desk is responsible for coordinating and monitoring the Resolution of all Cases.

b) Normal Service Hours. Subject to scheduled maintenance, normal Service Hours are 24 × 365 days a year.

c) Care. The Care Technical Support Self-Service Portal provides CUSTOMER's Authorized Contacts with a structured means of reporting, logging, and tracking Cases and related Resolution activities. Cases shall be recorded in Care with information relating to their symptoms, basic diagnostic data and information about the Product and CUSTOMER's use thereof.

d) Case Management.

i. Reporting and Communication. For initial reporting and submission of Cases, the applicable Authorized Contacts shall endeavor to use Care, unless Care is unavailable due to scheduled maintenance, unscheduled outage, or is otherwise inaccessible by the applicable Authorized Contact. Care can be accessed by Authorized Contacts through the Internet, using a supported Web browser. For subsequent enquiries or updates, CUSTOMER may use Care, or may email or telephone the Support Desk.

ii. Response Commitment. Following initial Case submission, BCN shall provide the Authorized Contact with prompt email confirmation of the Case Support submission, and a direct response from a Support Desk representative within the response times set out in Table A1 below. This response shall indicate whether BCN requires any further information with respect to the Case and an indication of the commencement of Resolution activities.

iii. Severity Code Assignment. If BCN cannot promptly provide a Resolution to the submitted Case, the Support Desk representative shall assign a Severity Code to the Case (if not provided, or if BCN reasonably disputes the assignment provided, by the applicable Authorized Contact). If conditions relating to a logged Case materially change, such that the Case subsequently meets the criteria of a higher or lower Severity Code, then such Case shall be re-classified by BCN as such, and shall then follow the Response Time of: (i) a higher Severity Code, upon BCN's receipt of CUSTOMER's written notice reasonably requesting such a change; or (ii) a lower Severity Code, which BCN may reasonably deem as a result of BCN's and CUSTOMER's Resolution activities or a reasonable Workaround.

iv. Assessment and Resolution Estimate. The Support Desk representative shall promptly initiate detailed Case assessment activities, the completion of which shall result in BCN's provision to the Authorized Contact of a good faith, non-binding, estimate of the time required to produce a Resolution for the Case.

v. Prioritization. Unless otherwise directed by the Primary Administrator, BCN shall attend to each of CUSTOMER's reported Cases based upon the level of its Severity Code and, for Cases of the same Severity Code, based upon either the date and time of receipt of the reported Case or the defined business priority identified.

vi. Resolution.

• BCN shall use commercially reasonable efforts to provide Resolutions to all submitted Cases in a timely manner.

• CUSTOMER shall co-operate promptly with BCN in the investigation, diagnosis and Resolution of Cases. Without limiting the generality of the foregoing, CUSTOMER shall respond in accordance with timelines articulated in the Support Handbook to BCN's requests for information or action relating to a Case. BCN shall work with CUSTOMER to determine the appropriateness of Workarounds and patches to reported Cases, as necessary.

• Cases that cannot be resolved promptly by the Support Desk personnel may be assigned or escalated to other specialized groups within BCN (e.g. Development).

• When a Case has been resolved, the Support Desk shall ensure that Case records are reasonably complete and accurate, and that the Resolution is agreed upon by the appropriate Authorized Contact.

A.5 MAINTENANCE

a) Updates. During the Support Services term, CUSTOMER shall be entitled to receive all Updates of the Software that BCN makes generally available, without additional payment, to Support Services subscribers, including any associated Documentation. Upon release, BCN shall promptly notify CUSTOMER of such Updates and/or Documentation and Deliver such Updates and Documentation to CUSTOMER upon request.

b) Hardware Replacement. CUSTOMER shall be entitled to rapid replacement for qualifying hardware platform failures, per BCN's then current RMA process. After CUSTOMER and BCN mutually determine that the unit qualifies for replacement, BCN will ship a replacement system free of charge using an express courier service. If the request to ship is received before 2pm ET, BCN will make reasonable commercial efforts to ship a replacement unit to arrive for the next business day, if not earlier. Requests made after 2pm ET will be shipped on the next business day. Delivery is typically 1-3 business days but can vary according to location.

A.6 TECHNICAL ACCOUNT MANAGEMENT (TAM) SUPPORT

a) Scope of TAM Support. A Technical Account Manager (TAM) is a senior Customer Care team member designated to work with a CUSTOMER that purchases TAM Support, through its Authorized Contacts. The TAM will become as familiar with the CUSTOMER's Product related needs as the CUSTOMER wishes, so that the TAM can be a ready resource when required. TAM Support Services include:

i. Direct Case Escalation

ii. Release Management Support

• The TAM shall provide services in relation to the evaluation, recommendation and coordination of deployment of Updates, as requested by CUSTOMER

iii. Scheduled communication and activity, including assistance for scheduled after-hours activity

iv. Detailed Case reports, manually and automatically extracted from Care

v. Onsite activity, when requested and mutually agreed upon as a necessary next step

vi. Operational Support, which consists of:

• General advice regarding interoperability between Product and third party components not licensed by BCN to CUSTOMER;

• General Product performance investigation, and possible remediation

b) Prerequisites and Fees.

i. Prerequisites. TAM Support services are only available if:

• CUSTOMER is a current Support Services subscriber and has additionally subscribed for TAM support; and

• All valid invoices for TAM Support have been paid when due and the account remains in good standing.

A.7 EVERGREEN - HARDWARE SUPPORT PROGRAM

Evergreen Hardware Support provides CUSTOMER with replacement hardware. The old hardware is replaced with BCN's then current hardware platform, upon CUSTOMER's written request, any time after the third anniversary of the unit's original purchase date, and prior to the end of either the fourth or fifth anniversary, depending on the Evergreen Hardware Support term purchased and paid for by CUSTOMER (as evidenced in CUSTOMERS Order for the unit being replaced).

A.8 CUSTOMER RESPONSIBILITES

a) CUSTOMER Environment Dependency. To address certain Cases related to Product performance, BCN may request that CUSTOMER disable or remove non-essential software from each applicable server, and/or upgrade third party hardware, network, or other components. If CUSTOMER is unable or unwilling to take such measures and if such Case is related thereto, CUSTOMER acknowledges that BCN shall not be required to provide Resolutions to such Cases hereunder.

b) CUSTOMER Instance Connectivity. CUSTOMER shall provide BCN with read-only access to CUSTOMER's production environment and read-write access to CUSTOMER's test application environment. Certain remote administration software such as WEBEX, or an alternate may be required. Provided that CUSTOMER provides BCN with reasonable advance notice, BCN shall comply with CUSTOMER's reasonable security and privacy requirements in connection with any such access.

c) Apply Updates. CUSTOMER shall apply recommended Updates and shall make any related infrastructure requirements for each deployed Update to ensure continued supportability, but in any event, not more than six (6) months after its release by BCN. Subject to delays necessitated by adherence to A.7(g) below, CUSTOMER acknowledges BCN bears no liability for damage suffered by CUSTOMER after the recommended Update is available and before it is deployed, if, or to the extent, its deployment would have avoided or mitigated the damage.

d) Attend Training. As necessary, CUSTOMER shall ensure that the System Administrator and each designated Authorized Contact attends approved training (both Product and administration training, where available; conducted by either BCN trainers, or by CUSTOMER's trainers who have completed BCN's 'train-the-trainer' training), for each Major Release of the Software that CUSTOMER implements.

e) CUSTOMER "Triage". CUSTOMER shall conduct internal Case "triage" (assessment and prioritization) for each Case via CUSTOMER's internal support mechanisms or 'tier 1 support desk', which shall first review all appropriate Documentation for relevant information pertaining to each Case (e.g., user guide, on-line help, installation guide, and the Care knowledge base). Prior to reporting each Case to BCN, CUSTOMER shall reproduce each Case in a lab that matches the current production environment, which CUSTOMER maintains and which is sufficiently standardized to determine the root cause. BCN reserves the right to charge its regular hourly professional services rate for a Case if it becomes apparent that the Customer has not performed the triage in a reasonable manner.

f) Support Handbook. Authorized Contacts shall adhere to BCN's reasonable support procedures and escalation guidelines as set out in the Support Handbook.

g) Update Testing. CUSTOMER shall test all provided Updates within a reasonable amount of time from Delivery in a lab environment, and prior to deployment into CUSTOMER's Production environment.