Please note: this document contains two versions of the end user agreement:

“End User Agreement – Physical”, for acquirors of a tangible appliance, and “End User Agreement – Virtual” for acquirors of an intangible (pure software) version of BlueCat’s product.

Please ensure you read the correct version, depending on your acquisition. If you are acquiring both tangible and intangible product, then the “Physical” agreement will apply to the tangible acquisition, and the “Virtual” agreement will apply to the intangible acquisition.

End User License Agreement - Physical

IMPORTANT! CAREFULLY READ THIS AGREEMENT BEFORE 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. THE HARDWARE IS SOLD TO YOU BUT THE SOFTWARE AND DATA AND DOCUMENTATION ARE BEING LICENSED (NOT SOLD) TO YOU. IF YOU DO NOT AGREE WITH THIS AGREEMENT, DO NOT USE THE PRODUCT AND RETURN SAME TO THE PLACE OF PURCHASE WITHIN 15 DAYS OF DELIVERY FOR A FULL REFUND.

This Agreement ("Agreement") is entered into by BlueCat Networks (USA) Inc., with respect to Proteus products (including standalone software 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) ("CLIENT").

In consideration of the mutual promises herein, the parties agree as follows:

1.0 DEFINITIONS; INTERPRETATION

1.1 In this agreement the following terms mean:

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

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

"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:

computer software, know-how, technical data, research, products, business or financial information, plans or strategies, business practices, operations, procedures, information respecting the customers, of such Party;
information about a Party’s customers, suppliers, business partners, employees, research plans, data and results, computer systems and communications network, including information stored thereon;
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 CLIENT from BCN or its representative or developed by CLIENT;
information which, due to its nature or the circumstances surrounding its communication, would be reasonably considered confidential by an independent person;
any other information of any nature, in any form, received from or belonging to such Party which is marked or identified as confidential;
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.

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

"hereof", "hereunder", "hereto", "herewith" mean this Agreement.

"M&S" means maintenance and support set out in the Exhibit attached and incorporated by reference.

“Order” means a purchase order.

"Party" means either CLIENT or BCN, or an Affiliate who has acceded to this Agreement.

"Product(s)" mean the appliances (and any standalone software) acquired by Client pursuant to the Order, and BCN’s then current applicable version of end user instruction manual.

"Product Warranty Period" means thirty (30) days from Product delivery (if not installed by BCN) or from installation (if installed by BCN).

"Site" means the destination location specified in the accepted Order;

"Term" means perpetual, unless terminated as permitted hereunder.

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

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

2.0 SCOPE

During the Term, BCN shall make available to CLIENT for purchase: (a) certain equipment, limited licenses to use embedded 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) installation, as more particularly described in sections 5 ("Delivery and Installation"), and 11 ("Training and Product Maintenance") to the extent acquired pursuant to any Order.

3.0 ORDERS

3.1 CLIENT 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 CLIENT 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 locations shall bind BCN.

3.2 CLIENT shall be entitled to order Product or services pursuant hereto for its Affiliates, so long as: a) the Affiliate is not located in a country to which US or Canadian export restrictions prohibit the export of the Product or service; b) the Affiliate agrees in writing with BCN to be bound by the terms hereof; and c) CLIENT and Affiliate are jointly and severally liable for any breach.

4.0 RISK OF LOSS AND TITLE

Risk of loss or damage to Product, and title, shall pass to CLIENT upon delivery of Product into the possession and custody of the shipper to the CLIENT (as evidenced by a confirmed receipt). Delivery shall be made to the Site. BCN shall arrange for shipping and insurance, but CLIENT shall reimburse BCN for same incurred by BCN.

5.0 DELIVERY AND INSTALLATION

5.1 BCN shall arrange for delivery of all Product specified in the Order to the Site, within one (1) week 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 CLIENT's (or subject to s.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.

6.0 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 CLIENT for, and CLIENT 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 CLIENT’s designated Site. The fees for the training services described in Section 11 shall be invoiced upon completion of such services. CLIENT 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).

7.0 SOFTWARE LICENSE

7.1 Software is embedded in the Product furnished by BCN to CLIENT and subject to the terms hereof, a non-exclusive, worldwide, non transferable, non-sublicensable, perpetual license or sublicense of the object code version only, for use within the Product is granted by BCN to CLIENT, but solely for use within the Product and only for CLIENT’s internal needs in connection with its business.

7.2 Except as otherwise provided herein, CLIENT 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. Client 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 CLIENT 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 CLIENT in advance of CLIENT’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.

8.0 WARRANTIES

8.1 BCN warrants that: (A) it shall provide to CLIENT, upon delivery to the Site, unencumbered good title to the hardware components, 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) the Product shall be free from material defects in materials and workmanship and will perform substantially in accordance with BCN’s generally applicable end user manual for the Product and be free from material Errors during the Product Warranty Period; (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, other products, or other CLIENT property; and (F) if CLIENT has provided an Order to BCN for installation, training or maintenance services, 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. CLIENT 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, CLIENT 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. BCN does not warrant the Products will satisfy CLIENT’s needs or operate error or interruption free, or that all errors will be detected and corrected.

8.3 REPLACEMENT OR REFUND - During the Product Warranty Period, BCN shall (at BCN’s option), at no additional charge to CLIENT, repair or replace any defective hardware or software returned by CLIENT to BCN pursuant to the RMA process, or (at BCN’s option), refund the price for that unit. If, during the Product Warranty Period, the Product fails to operate in accordance with the warranty, CLIENT shall notify BCN, via telephone, of Product failure and obtain a Return Material Authorization ("RMA") number.

9.0 LIMITATION OF LIABILITY

9.1 BCN liability and CLIENT'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 materials, or termination and refund of CLIENT’s unamortized or unexpensed acquisition price, in each case at BCN's sole election. All warranty claims, correspondence and warranty service requests must specify both the model name and serial number of the Products and are to be directed to BCN pursuant to its then current RMA procedure.

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.

10.0 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 CLIENT hereunder, including the structure, organization and design of hardware 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 CLIENT's or its Affiliate's permitted use of the Product or any portion thereof infringes or violates any intellectual property right, CLIENT 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 above), and attorneys' fees arising therefrom or caused thereby. BCN shall permit CLIENT to participate in such defense, at CLIENT’s expense. 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 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 CLIENT’ 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 CLIENT; (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.

11.0 TRAINING AND PRODUCT MAINTENANCE

Upon the terms of a mutually agreed Order issued by CLIENT 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 and (b) M&S.

12.0 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.

13.0 SURVIVING PROVISIONS

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

14.0 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.O.O. with a copy to General Counsel at the same address

If to CLIENT: 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.

15.0 NO ASSIGNMENT

Except in the context of a sale of substantially all of its assets to a third party, neither BCN or CLIENT may assign any of its rights or delegate 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.

16.0 USE OF NAME

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

17.0 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 CLIENT with a certificate of the insurance coverage upon request.

18.0 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.

19.0 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.

20.0 NO WAIVER; CHANGES

21.0 ENTIRE AGREEMENT

This Agreement constitutes the entire agreement between CLIENT 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.

22.0 DISPUTE RESOLUTION; LAW AND VENUE

(A) Arbitration. Subject to the limitations imposed by all applicable statutes of limitation, 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.

(B) 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 the 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 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 Ontario and Canada applicable therein, excepting its choice of law provisions.

23.0 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.

24.0 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 CLIENT’s sole and exclusive remedies.

25.0 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 Defence, 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.

26.0 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.

27.0 LAB UNITS AND COLD SPARES

If you 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, at which time the other warranties in this Agreement shall apply to that unit). For Lab units the warranties and indemnities herein apply only for non-production use.

28.0 CONFLICT

In the event of a conflict between the version of the Agreement attached to, or referred to, in CLIENT’s accepted quote, and the version in CLIENT’s acquired Product, this version prevails.

29.0 EXPORT COMPLIANCE ASSURANCE

CLIENT acknowledges that all Products are subject to the United States (U.S.) and other government export control and economic sanctions laws. CLIENT 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.

Exhibit to End User Agreement
OFF SITE SUPPORT SERVICES

Platinum: Note: this only applies for Client’s purchasing support directly from BCN or for which BCN has been fully paid by Client’s reseller.

A. Support Term
This maintenance agreement commences on the delivery date (or Product installation date if installed by BCN or its authorized reseller), and continues for the period of time set out in your purchase order, and then expires unless terminated earlier upon the material breach of this Exhibit or the Agreement by either party, which is not cured by the defaulting party within thirty (30) days of written notice, at the option of the non-defaulting party ("Term").

B. Support Renewal
Subject to the terms of this Exhibit, upon expiry of the Term, to ensure uninterrupted maintenance, BCN’s obligation to provide, and Client’s duty to pay for, support shall renew for additional one year terms on the Anniversary Date (defined below), unless at least thirty (30) days prior to the next upcoming Anniversary Date, either party has provided notice in writing of its intent not to renew the support services. Renewal maintenance fees shall be no higher than BCN’s then published, generally applicable maintenance fees.

C. Support Fees

All pricing is in the currency of your initial acquisition.
Payment Date. The Off Site Support fees to be invoiced and paid within thirty (30) days of the invoice date, following the initial Product delivery date (or installation date if installed by BCN or its authorized reseller) ("Anniversary Date") and on each anniversary thereof.
So long as Client is not in default under the Agreement including its exhibits, BCN will provide annually Technical Support during the Term, as described below.
If Client requests On Site Support, a minimum eight (8) hour fee will apply based on BCN’s then current generally applicable rates, plus reasonable travel, and accommodation (hotel, food etc.) expenses.

D. Client Obligations for Support:

Client shall designate 2 people ("designated customer contacts") to act as liaisons with BCN for technical and software administrative support purposes. Only designated customer contacts may submit requests to BCN for support services.

E. Support Services:

The following Support Services will be available during the Term and any renewal thereof:

Access to the BCN telephone helpdesk on a 24 x 365 (including by pager) for Platinum subscribers.
Submission of support service requests by email.
Submission of support service requests via the BCN Support Portal.
Access to the BCN Support Portal to obtain documentation and other resources.
Product Upgrades (increases in functionality for the software component of your Product) and Updates (error corrections), made generally available to all support clients in good standing. If Upgrades are not supported by the then current hardware platform component of the Product Client has acquired, Client may either continue to be supported for the then current software version prior to the Upgrade which Client is running, for up to one (1) additional year, or shall have the right to migrate to the new Product at BCN’s then current Platform Upgrade Program pricing.
Rapid replacement for hardware platform failures per BCN’s RMA process, to be shipped within 2 business day for Platinum subscribers.
NOTE: Platinum Support does not include support for hardware which is more than three years old.

Evergreen (not included with Platinum, but available if purchased)

Evergreen support provides Platinum support noted above, plus replacement of hardware with BCN’s then current platform, upon Client’s written request, any time after the end of year three (3) and prior to the end of year four (4) or (5) depending on the Evergreen term purchased (as evidenced in your initial Order) and paid for.

Technical Account Manager (“TAM”) (not included with Platinum, but available if purchased)

A TAM is an individual senior support person dedicated to Client. The TAM will become as familiar with Client’s BCN IPAM related needs as Client wishes, and therefore be a ready resource when required.

F. RESPONSE AND RESOLUTION SCHEDULE:

CLIENT, acting reasonably and in good faith, will classify each error or defect in the Product or related Documentation and will report such error or defect to BCN for correction based on the following criteria:

ERROR CLASSIFICATION	CRITERIA
Critical	Product failure which results in a critical impact to business operations with no viable workaround.
Serious	Loss of key functionality which affects significant aspects of business operation.
Standard	Product is useable with limitations and workarounds. Also includes questions on configuration and use.

BCN reserves the right to alter the severity designation of a reported incident.
All new incidents reported to BCN are assigned to a technical support representative ("TSR"), who creates a "case" in the BCN Trouble Ticket System. A case number is given to the customer.
The minimum information required from Client for each new Ticket:

Company name

Contact name

Electronic mail address or phone number

Product and version

Client(s) platform

Server(s) platform

Description of defect and/or malfunction in sufficient detail to enable replication.

BCN shall manage cases according to the following schedule:

Critical:
A response will be sent within 1 (one) hour* of receipt. The TSR will use reasonable commercial efforts to provide a resolution immediately (see "Resolution" below). If insufficient information is provided by the customer to diagnose the issue, a request may be made for additional information in the form of logs, network information etc. If a resolution is not provided within 1 hour, or a request for further information is not made within 1 hour*, an acknowledgement will be sent to the customer, and the case escalated (see "Escalations" below).
Serious:
A response will be sent within 4 (four) hours* of receipt. The TSR will use reasonable commercial efforts to provide a resolution immediately (see "Resolution" below). If insufficient information is provided by the customer to diagnose the issue, a request may be made for additional information in the form of logs, network information etc. If a resolution is not provided within 4 hours*, or a request for further information is not made, an acknowledgement will be sent to the customer, and the case escalated (see "Escalations" below).
Standard:
A response will be sent within 24 (twenty four) hours* of receipt. The TSR will use reasonable commercial efforts to provide a resolution immediately (see "Resolution" below). If insufficient information is provided by the customer to diagnose the issue, a request may be made for additional information in the form of logs, network information etc. If a resolution is not provided within 24 hours, or a request for further information is not made within 24 hours, an acknowledgement will be sent to the customer, and the case escalated (see "Escalations" below).
* in this section, “hour” means, for a Platinum subscriber, one chronological hour within a calendar day.
Resolution:

A resolution may be one of the following:
- An answer to the question, e.g. how to configure something, where a file is found, what updates are available etc.
- Recommendation to apply a patch or update which is known to address the reported problem.
- Provision of an RMA number if the issue is defective hardware.
- A commitment to provide a patch or update at a future time to address the reported problem.
- A workaround.
BCN will consider a problem resolved when CLIENT has either:
- Responded verbally or in an email accepting the proferred resolution.
- Failed to respond to three emails or other communications from BCN explicitly requesting the customer to acknowledge the proferred resolution.
In some cases, BCN will require certain information to diagnose a case, including but not limited to log files, screen shots, configuration files and remote access to the affected system using an SSH (secure encrypted) connection. Failure to provide any requested information or the remote access may limit or prevent a resolution. In such cases, BCN will inform the customer that the case will be considered closed.
The customer acknowledges by this agreement that not all problems and errors are correctable, and the inability of BCN to resolve an issue, after the application of reasonable commercial effort, shall not constitute a breach of this agreement.

G. ESCALATIONS:

BCN will escalate customer cases as defined above. Escalation is a defined internal BCN procedure which may involve applying increasing proportions of BCN resources to address a problem, including engineering, QA and senior management.

Once a case has been escalated, an email is sent to the customer informing it of the following:

The name of the support representative who will manage the case to resolution.
the action plan to be used. This will include a schedule of activities for BCN and customer, planned meetings and teleconferences, diagnostic steps and a proposed target date of resolution.

Name of the responsible manager to be contacted if additional escalation is required by the customer.

H. PRODUCT GOVERNED

BCN shall provide support only on the Product governed by the Agreement.

I. CLIENT MODIFICATIONS ETC.

BCN does not provide any support services if: i) Client has modified or attempted to modify the Product without our written authorization (including, without limitation, opening the Product’s shell); ii) Client 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;

BCN support does 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 Upgrades (including any data migration for such implementation); or d) any professional services work under a separate statement of work).

J. THIRD-PARTY SUPPORT

BCN may authorize a third party to provide the support services and/or to invoice the Client for and collect the charges specified herein, as its designated representative.

K. PRIOR VERSION SUPPORT

Upon an Upgrade being made available by BCN, previous versions will only be supported for a period of 12 months from the release date of the new Upgrade.

L. LIMITATION OF LIABILITY

BCN makes no express, and disclaims all implied, warranties or representations with respect to the services provided hereunder, including their quality, performance, merchantability, or fitness for a particular purpose. In no event shall BCN be liable for lost profits, business, revenue, goodwill, savings, data or information of any kind, or for direct, indirect or consequential damages arising out of the use or inability to use the services described hereunder, or the inability to solve a problem. Without limiting the foregoing, in no event shall BCN's liability exceed the amount paid for services in the year in which the claim accrued.

End User License Agreement - Virtual

IMPORTANT! CAREFULLY READ THIS AGREEMENT BEFORE 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. THE SOFTWARE AND DOCUMENTATION ARE BEING LICENSED (NOT SOLD) TO YOU. IF YOU DO NOT AGREE WITH THIS AGREEMENT, DO NOT USE THE PRODUCT. CONTACT BLUECAT FOR KEY REMOVAL WITHIN 5 DAYS OF DOWNLOAD, TO OBTAIN A FULL REFUND.

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

In consideration of the mutual promises herein, the parties agree as follows:

1.0 DEFINITIONS; INTERPRETATION

1.1 In this agreement the following terms mean:

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

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

"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:

computer software, know-how, technical data, research, products, business or financial information, plans or strategies, business practices, operations, procedures, information respecting the customers, of such Party;
information about a Party’s customers, suppliers, business partners, employees, research plans, data and results, computer systems and communications network, including information stored thereon;
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 CLIENT from BCN or its representative or developed by CLIENT;
information which, due to its nature or the circumstances surrounding its communication, would be reasonably considered confidential by an independent person;
any other information of any nature, in any form, received from or belonging to such Party which is marked or identified as confidential;
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.

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

"hereof", "hereunder", "hereto", "herewith" mean this Agreement.

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

“Instance Limits” means both: (a) the number of instances of the Product which CLIENT 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.

“Key” means a license key consisting of a series of numbers and/or letters provided by BCN to CLIENT to permit CLIENT to activate and use a defined (or unlimited) number of instances of the Product (each a Virtual Instance), for a defined period of time, (in each case as specified in your Order), when passed to a verification function in the Product, which manipulates the key sequence according to a mathematical algorithm to verify compliance.

"M&S" means maintenance and support set out in the Exhibit attached and incorporated by reference.

"Order" means a purchase order.

"Party" means either CLIENT or BCN, or an Affiliate who has acceded to this Agreement.

"Product(s)" mean the object code software product acquired by CLIENT pursuant to the Order, and BCN’s then current applicable version of end user instruction manual for that product.

"Product Warranty Period" means thirty (30) days from delivery of the initial Key for the Product to CLIENT.

"Site" means the destination location specified in the accepted Order;

"Term" means perpetual, unless terminated as permitted hereunder.

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

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

2.0 SCOPE

During the Term, BCN shall make available to CLIENT for purchase: (a) certain limited licenses to use Product (but not to purchase any other rights in the Product), and all related generally available end user manual documentation, collectively comprising the Products, for an agreed license Term; and (b) services (such as implementation, training and M&S for an agreed M&S Term), as more particularly described in section 11 ("Training and Product Maintenance") to the extent acquired pursuant to any Order. Purchase of a license for a Term does not constitute purchase of an M&S for a co-extensive, or any, Term.

3.0 ORDERS

3.1 CLIENT 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, but only to the extent set out in the following sentence. Notwithstanding anything else herein, or in any Order, whether the Order is issued and accepted before or after CLIENT 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 and the address for invoicing shall bind BCN.

4.0 RISK OF LOSS AND TITLE

Risk of loss or damage to Product, and title, shall pass to CLIENT upon delivery of the initial Key which permits CLIENT’s use of the Product, pursuant to this Agreement.

5.0 DELIVERY AND INSTALLATION

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

6.0 PRICING AND PAYMENT

6.1 In addition to all other charges specified herein, BCN shall invoice CLIENT for, and CLIENT 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.

6.2 BCN shall issue invoices (including Product prices, plus applicable taxes), for Orders upon delivery of a Key to CLIENT. The fees for the training services described in Section 11 shall be invoiced upon completion of such services. The fees for the implementation services shall be invoiced in accordance with the applicable SOW. CLIENT shall pay the undisputed portion of all invoices rendered per this Agreement within thirty (30) days of the date of the invoice (which, for Product and training, shall not be rendered prior to download date of the Key for the Product, or delivery of the implementation or training service ordered, unless otherwise agreed; if purchased, then M&S shall be prepaid for the applicable M&S Term.

7.0 SOFTWARE LICENSE

7.1 Subject to the terms hereof, a non-exclusive, worldwide, non transferable, non-sublicensable, license or sublicense of the object code version only, of the Product is granted by BCN to CLIENT, but solely for CLIENT’s internal needs in connection with its business, and subject always to the license Term, and Instance Limits.

7.2 Except as otherwise provided herein, CLIENT will not: (i) modify, translate or copy the Product except to make copies solely for each of backup, archival and disaster recovery 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 Products (except to the extent applicable law overrides); (iv) use the Product, except as authorized herein; (v) rent, or lease the Products; (vi) remove any proprietary notice, labels, or marks on the Product or documentation. CLIENT 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 CLIENT 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 CLIENT in advance of CLIENT’s acquisition. BCN bears no responsibility whatsoever respecting third party software requiring a separate license. BCN bears no responsibility whatsoever respecting compatibility of the Product with, or capacity limitations of, third party products, 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.

8.0 WARRANTIES

8.1 BCN warrants that: (A) it shall provide to CLIENT, upon download, of the Key, a valid license for the Product; (B) the Product and any services shall comply with all applicable governmental regulations; (C) it is a duly authorized licensor of the Product which it purports to license, pursuant hereto; (D) the Product shall be free from material defects in workmanship and will perform substantially in accordance with BCN’s generally applicable end user manual for the Product and be free from material Errors, during the Product Warranty Period; (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, other products, or other CLIENT property, save and except that CLIENT 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 CLIENT has provided an Order to BCN for services, the 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. CLIENT 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, CLIENT shall bear all costs associated with Product correction and replacement including without limitation, labour and BCN travel and accommodations costs. BCN does not warrant the Products will satisfy CLIENT’s needs or operate error or interruption free, or that all errors will be detected and corrected.

8.3 REPLACEMENT OR REFUND - During the Product Warranty Period, BCN shall (at BCN’s option), at no additional charge to CLIENT, correct or replace any defective Product where the defect is reproducible, or (at BCN’s option), refund the price for that unit. If, during the Product Warranty Period, the Product fails to operate in accordance with the warranty, CLIENT shall notify BCN.

9.0 LIMITATION OF LIABILITY

9.1 BCN liability and CLIENT'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 Product, or termination and refund of CLIENT’s unamortized or unexpensed acquisition price, in each case at BCN's sole election. All warranty claims, correspondence and warranty service requests must specify both the Product model name and verified individual license key number.

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 to tangible property directly caused), 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 CLIENT’S BREACH OF THE CONFIDENTIALITY AND LICENSE RESTRICTIONS, AND OTHER THAN CLAIMS FOR PERSONAL INJURY OR DEATH), 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) CONTRIBUTION OR INDEMNITY IN RESPECT OF ANY CLAIMS AGAINST CLIENT. CLIENT ACKNOWLEDGES AND AGREES THAT IT IS: A) RESPONSIBLE FOR THE BACK UP OF ITS OWN DATA; B) ACQUIRING THE PRODUCT FOR USE DURING A SPECIFIC, LIMITED, TERM; AND C) RESPONSIBLE FOR ENSURING THAT CLIENT EITHER RENEWS THE LICENSE PRIOR TO EXPIRY, OR ARRANGES FOR TRANSITION TO AN ALTERNATIVE SOLUTION SATISFACTORY TO ITS NEEDS PRIOR TO THE EXPIRY DATE. CLIENT AGREES THAT BCN IS NOT LIABLE FOR ANY DAMAGE OF ANY NATURE OR KIND, ARISING FROM BCN FAILURE TO REMIND CLIENT OF THE EXPIRY DATE OF THE PRODUCT, OR THE TERMINATION OR REDUCTION IN FUNCTIONALITY ARISING FROM CLIENT’S FAILURE TO BACK UP, RENEW OR TRANSFER TO AN ALTERNATIVE IN A TIMELY FASHION.

10.0 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 CLIENT hereunder, including the structure, organization and design 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 CLIENT's or its Affiliate's permitted use of the Product or any portion thereof infringes or violates any intellectual property right, CLIENT 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 above), and attorneys' fees arising therefrom or caused thereby. BCN shall permit CLIENT to participate in such defense, at CLIENT’s expense. 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 certified destruction of the 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 CLIENT’s generally accepted accounting procedures.

11.0 TRAINING AND PRODUCT MAINTENANCE

Upon the terms of a mutually agreed Order issued by CLIENT to BCN directly, BCN shall provide: (a) implementation per a separately agreed statement of work (“SOW”); (b) training in the use of the Product sufficient to enable trainees to have a working knowledge and proficiency in normal operation of the Product and (c) M&S.

12.0 TERMINATION

This Agreement both as it relates to Product and any M&S, expires when the license Term expires unless renewed by the parties, in writing. Furthermore, 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 an M&S Term extends beyond a license Term, BCN is only obliged to provide M&S for the balance of the M&S Term if CLIENT purchases an extension of the License Term for at least the balance of the M&S Term.

13.0 SURVIVING PROVISIONS

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

14.0 NOTICES

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 CLIENT: 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.

15.0 NO ASSIGNMENT

Except in the context of a sale of substantially all of its assets to a third party, neither BCN nor CLIENT may assign any of its rights or delegate 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.

16.0 USE OF NAME

17.0 INSURANCE

18.0 CONFIDENTIAL INFORMATION

19.0 SEVERABILITY

20.0 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 CLIENT 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.

21.0 ENTIRE AGREEMENT

22.0 DISPUTE RESOLUTION; LAW AND VENUE

23.0 FORCE MAJEURE

24.0 ILA

25.0 U.S. GOVERNMENT END-USERS

26.0 NON-SOLICITATION

27.0 EVALUATION UNITS

If you acquired a unit of Product for use in a laboratory environment, then the evaluation agreement that CLIENT entered supersedes this Agreement. If CLIENT did not enter an evaluation agreement, then this Agreement provides, save and except that the Product and services are provided "as is" with no warranty or indemnity of any nature or kind, and the evaluation unit may only be used in a non-production environment.

28.0 CONFLICT

Subject to s.27, “Evaluation Units”, in the event of a conflict between the version of the Agreement attached to, or referred to, in CLIENT’s accepted quote, and the version in CLIENT’s acquired Product, the version in the Product prevails.

29.0 EXPORT COMPLIANCE ASSURANCE

Exhibit to End User Agreement
OFF SITE SUPPORT SERVICES - M&S

Note: M&S is not included in your fixed term license fee. M&S is only available if separately purchased and if your account is in good standing.

A. Support Term
This M&S Term is set out in your Order for M&S, and then expires unless terminated earlier upon the material breach of this Exhibit or the Agreement by either party, which is not cured by the defaulting party within thirty (30) days of written notice, at the option of the non-defaulting party ("Term").

B. Support Renewal
Renewal of the license Term (purchase of an extension and a new key) does not automatically extend the M&S Term. Renewal of the M&S Term does not automatically extend the license Term.

C. Support Fees

Fees for the license Term do not include the fees for the M&S Term. All pricing is in the currency of your initial acquisition.
So long as CLIENT is not in default under the Agreement including its exhibits, and has renewed M&S BCN will provide off site M&S during the M&S Term, as described below.
If CLIENT requests On Site Support, a minimum eight (8) hour fee will apply based on BCN’s then current generally applicable rates, plus reasonable travel, and accommodation (hotel, food etc.) expenses.

D. Client Obligations for Support:

CLIENT shall designate 2 people ("designated customer contacts") to act as liaisons with BCN for technical and software administrative support purposes. Only designated customer contacts may submit requests to BCN for support services.

E. Support Services:

The following Support Services will be available during the Term and any renewal thereof:

Access to the BCN telephone helpdesk on a 24 x 365 (including by pager).
Submission of support service requests by email.
Submission of support service requests via the BCN Support Portal.
Access to the BCN Support Portal to obtain documentation and other resources.
Product Upgrades (increases in functionality for the Product) and Updates (error corrections), made generally available to all support clients in good standing. If Upgrades are not supported by CLIENT’s then current hardware or software platform component, CLIENT may continue to be supported for the then current BCN software version prior to the Upgrade which CLIENT is running, for the period set out in our End of Life policies published on our web site athttp://www.bluecatnetworks.com/clientsupport/eol/

Technical Account Manager ("TAM") (not included with Platinum, but available if purchased)

A TAM is an individual senior support person dedicated to CLIENT. The TAM will become as familiar with CLIENT’s BCN IPAM related needs as CLIENT wishes, and therefore be a ready resource when required.

F. RESPONSE AND RESOLUTION SCHEDULE:

ERROR CLASSIFICATION	CRITERIA
Critical	Product failure which results in a critical impact to business operations with no viable workaround.
Serious	Loss of key functionality which affects significant aspects of business operation.
Standard	Product is useable with limitations and workarounds. Also includes questions on configuration and use.

Company name

Contact name

Electronic mail address or phone number

Product and version

Client(s) platform

Server(s) platform

Description of defect and/or malfunction in sufficient detail to enable replication.

BCN shall manage cases according to the following schedule:

A resolution may be one of the following:
- An answer to the question, e.g. how to configure something, where a file is found, what updates are available etc.
- Recommendation to apply a patch or update which is known to address the reported problem.
- Provision of an RMA number if the issue is defective hardware.
- A commitment to provide a patch or update at a future time to address the reported problem.
- A workaround.
BCN will consider a problem resolved when CLIENT has either:
- Responded verbally or in an email accepting the proferred resolution.
- Failed to respond to three emails or other communications from BCN explicitly requesting the customer to acknowledge the proferred resolution.
In some cases, BCN will require certain information to diagnose a case, including but not limited to log files, screen shots, configuration files and remote access to the affected system using an SSH (secure encrypted) connection. Failure to provide any requested information or the remote access may limit or prevent a resolution. In such cases, BCN will inform the customer that the case will be considered closed.
The customer acknowledges by this agreement that not all problems and errors are correctable, and the inability of BCN to resolve an issue, after the application of reasonable commercial effort, shall not constitute a breach of this agreement.

G. ESCALATIONS:

Once a case has been escalated, an email is sent to the customer informing it of the following:

the name of the support representative who will manage the case to resolution.
the action plan to be used. This will include a schedule of activities for BCN and customer, planned meetings and teleconferences, diagnostic steps and a proposed target date of resolution.
name of the responsible manager to be contacted if additional escalation is required by the customer.

H. PRODUCT GOVERNED

BCN shall provide support only on the Product governed by the Agreement.

I. CLIENT MODIFICATIONS ETC.

BCN does not provide any support services if: i) CLIENT has modified or attempted to modify the Product without our written authorization (including, without limitation, opening the Product’s shell); ii) CLIENT is attempting to use the Product with hardware or software (including operating system software) other than those specifically recommended by BCN as set out at www.bluecatnetworks.com/products/virtual/specifications/ ; 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. BCN Support does 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; and c) implementation of Upgrades (including any data migration for such implementation); or d) any professional services work under a separate statement of work..

BCN support does 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 Upgrades (including any data migration for such implementation); or d) any professional services work under a separate statement of work).

J. THIRD-PARTY SUPPORT

BCN may authorize a third party to provide the support services and/or to invoice the Client for and collect the charges specified herein, as its designated representative.

K. PRIOR VERSION SUPPORT

Upon an Upgrade being made available by BCN, previous versions will only be supported for a period of 12 months from the release date of the new Upgrade.

L. LIMITATION OF LIABILITY

BCN makes no express, and disclaims all implied, warranties or representations with respect to the services provided hereunder, including their quality, performance, merchantability, or fitness for a particular purpose. The limitation of liability set out in “LIMITATION OF LIABILITY” in the End User Agreement to which this Exhibit is attached, shall apply.

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