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AtScale End User License Agreement

THIS SOFTWARE LICENSE AGREEMENT (“Agreement”) provides the terms and conditions by which you may use the Software (defined below), and is entered into between you (“you” or “Customer”) and AtScale, Inc., a Delaware corporation (“AtScale”) as of the date of your first access to the Software or the date on which you click a button or check a box marked “I Agree” or something similar (the “Effective Date”). By accessing or using the Software, or by clicking a button or checking a box marked “I Agree” or something similar, you signify that you have read, understood, and agree to be bound by the terms and conditions set forth in this Agreement. If you are entering into this Agreement on behalf of a company, organization, or other entity, then: (1) “you” and “Customer” include you and that entity, and (2) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf.

  1. License.

1.1 Grant. Subject to the terms of this Agreement, AtScale grants to Customer a limited, non-exclusive, non-transferable license during the Term, without the right to sublicense, to install and use the software identified on the then-current purchase order, order form, or other applicable ordering document applicable to Customer’s relationship with AtScale (such ordering document, the “Order Form,” and such software, the “Software”), in object code format only, and the accompanying product documentation (the “Product Documentation”) on Customer’s servers at the authorized location(s) specified on the Order Form, if applicable (the “Authorized Locations”), by the number of authorized concurrent users specified on the Order Form, if applicable (each, an “Authorized User”), solely for internal use as it relates to operations of Customer. The Software and the Product Documentation are referred to collectively in this Agreement as the “Licensed Materials.” In the event Customer desires to obtain licenses for additional Authorized Users; Customer shall deliver a written request therefor to AtScale. The grant of any such additional license shall be subject to acceptance by AtScale and payment of the applicable license fees in accordance with the payment terms set forth herein.

1.2 Additional Restrictions on Use. Customer shall not, and shall not permit any third party to: (a) use the Licensed Materials except to the extent permitted in Section 1.1; (b) modify or create any derivative work of any part of the Licensed Materials; (c) permit any parent, subsidiaries, affiliated entities or third parties to use the Licensed Materials; (d) process or permit to be processed the data of any other party unless in connection with Customer’s authorized use of the Software; (e) market, sell, license, sublicense, distribute, publish, display, reproduce, rent, lease, loan, assign or otherwise transfer to a third party the Licensed Materials or any copy thereof, in whole or in part; or (f) use the Licensed Materials for third-party training, commercial time-sharing or service bureau use. Customer shall have no rights to any source code for the Software. Customer agrees that, except to the extent permitted by law, it shall not cause or permit the disassembly, decompilation or reverse engineering of the Software or otherwise attempt to gain access to the source code to the Software (or the underlying ideas, algorithms, structure or organization of the object code in the Software). Without limiting the foregoing, in the event that Customer desires to reverse engineer the Software for interoperability purposes, Customer agrees to first contact AtScale and provide AtScale an opportunity to create such changes as are needed for interoperability purposes. Customer agrees that only AtScale shall have the right to maintain, enhance or otherwise modify the Licensed Materials.

1.3 Copies. Customer shall not copy the Software or Product Documentation except for loading the Software into the computer memory for the purpose of executing the program. Notwithstanding the foregoing, Customer may make one (1) back-up or archival copy of the Software in machine-readable form solely to support Customer’s use of the Software as authorized under this Agreement, and a reasonable number of copies of the Product Documentation, but in no event more than ten (10) copies, solely to support Customer’s use of the Software as authorized under this Agreement, provided that such copies shall include AtScale’s copyright and any other proprietary notices that appear on the original copies of the Licensed Materials. The machine-readable copy shall also be labeled “Copy for Back-up Use and Not for Resale.” Any copies of the Software or Product Documentation made by Customer are the exclusive property of AtScale.

1.4 AtScale Audit Rights. AtScale reserves the right, upon prior notice to Customer, to audit usage of the Licensed Materials at Customer’s premises during normal business hours to verify Customer’s compliance with the terms of this Agreement. If AtScale determines as a result of such audit that any fees are due from Customer to AtScale under the terms of this Agreement, Customer shall immediately pay such amounts due along with interest in an amount equal to one and one-half percent (1.5%) of the underpayment per month, or at the highest interest rate permitted by applicable law, whichever is less, calculated monthly from the date the underpayment was due until the date payment is made; and if such amount exceeds five percent (5%) of the cumulative license fees previously paid under this Agreement, Customer shall reimburse AtScale for the reasonable cost of such audit.

1.5 Reservation of Rights. AtScale reserves all rights not otherwise expressly granted in this Section 1.

1.6 Third Party Software. Customer acknowledges that it may use certain third party software in connection with the Software and that AtScale makes no warranties, express or implied, with respect to any such third party software.

1.7 Delivery of Software. All Licensed Materials, and any updates or maintenance releases thereof, shall be delivered only through an electronic transfer.

  1. Payment; Taxes.

2.1 License Fees. In consideration for the license(s) granted by AtScale under this Agreement, Customer shall pay AtScale the license fees in the amount set forth in the Order Form (the “License Fees”) in accordance with the terms set forth therein.

2.2 Taxes. Customer shall, in addition to the other amounts payable under this Agreement, pay all applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on AtScale’s net income. Customer agrees to indemnify, defend, and hold AtScale, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from Customer’s failure to report or pay any such taxes, duties or assessments.

2.3 Payment Terms. All amounts payable to AtScale under this Agreement will be due within thirty (30) days from the date of an invoice. Overdue payments will be subject to interest at the rate of one and one-half percent (1.5%) per month, or the highest interest rate permitted by applicable law, whichever is less.

  1. Ownership. Customer acknowledges and agrees that AtScale or its licensors own and shall retain all proprietary rights, title and interest, including all patent, copyright, trade secret, know-how, design rights, trademark, and other intellectual property rights, in and to the Licensed Materials and any changes, corrections, bug fixes, enhancements, updates and other modifications thereto (collectively, “Modifications”), whether made by or on behalf of Customer, AtScale or any third party, and as between the parties all such rights shall vest in and be assigned to AtScale. Except as explicitly set forth herein and in the maintenance and support exhibit which is attached as Exhibit A hereto, Customer shall have no right to receive any such Modifications. Customer acknowledges that the license granted under this Agreement does not provide Customer with title to or ownership of the Licensed Materials, but only a right of limited use under the terms and conditions of this Agreement. Customer shall keep the Licensed Materials free and clear of all claims, liens and encumbrances. In the event ownership of any Licensed Materials or Modifications vest in Customer, Customer hereby assigns to AtScale all of its right, title and interest in and to all intellectual property and other rights (and where relevant such assignment is by present assignment of future copyright) in such Licensed Materials or Modifications, and waives any and all moral rights in such Licensed Materials or Modifications to which it may now or in the future be entitled under the laws of any jurisdiction.

  2. Confidentiality.

4.1 Nondisclosure. Each party shall retain in confidence the non-public information and know-how disclosed or made available by the other party pursuant to this Agreement which is either designated in writing as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within thirty (30) days of the oral disclosure or should reasonably be understood to be confidential by the recipient (the “Confidential Information”). Notwithstanding any failure to so designate them, the Licensed Materials and the terms and conditions of this Agreement shall be AtScale’s Confidential Information. Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information; (b) refrain from using the other party’s Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to employees and subcontractors as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein). Each party agrees to immediately notify the other party of any unauthorized disclosure or use of any Confidential Information and to assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested. Notwithstanding the foregoing, either party may disclose Confidential Information of the other party which is: (i) already publicly known without breach of this Agreement; (ii) discovered or created by the receiving party without use of, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law or court order; provided that the receiving party shall provide prompt notice thereof and reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, either party hereto may disclose any Confidential Information hereunder to such party’s agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties hereto.

4.2 Remedies. Each party agrees and acknowledges that any breach or threatened breach of this Section 4 may cause irreparable injury to the disclosing party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the receiving party, without the necessity of proving actual damages or posting any bond, in addition to any other rights or remedies provided by law.

  1. Limited Warranty.

5.1 Scope of Limited Warranty. AtScale warrants to Customer that for a period of ninety (90) days from delivery of the Software, the Software, as delivered, will perform substantially in accordance with the Product Documentation for the Software.

5.2 Sole Remedy. AtScale’s liability and Customer’s exclusive remedies under the limited warranty set forth above shall be, at AtScale’s election, to attempt, through reasonable efforts, to correct any failure of the Software to conform to the Product Documentation or to replace the defective Software. The above remedies are available only if (a) discovery of the non-conformity occurs during the applicable warranty period, (b) AtScale is promptly notified in writing by Customer of such discovery, and (c) AtScale’s examination of Software discloses that such non-conformity exists. These limited warranties shall not apply if the Software has been: (i) altered or modified; (ii) subjected to negligence, computer or electrical malfunction; or (iii) used, adjusted, installed or operated (A) other than in accordance with this Agreement or the instructions furnished by AtScale or (B) with an application or in an environment other than that intended or recommended by AtScale.

5.3 Disclaimer of Any Other Warranties. EXCEPT FOR THE EXPRESS, LIMITED WARRANTY PROVIDED IN THIS SECTION 5, ATSCALE MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE LICENSED MATERIALS OR ANY OTHER ACCOMPANYING MATERIAL PROVIDED HEREUNDER. ATSCALE SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

  1. Infringement. AtScale shall defend or settle, at its own expense, any third-party action against Customer or its officers, directors, employees, agents, successors and assigns to the extent based upon a claim that the Software infringes any copyright or trademark or misappropriates any trade secret, and will pay such damages or costs as are finally awarded against Customer attributable to such claim, provided that Customer: (a) notifies AtScale promptly in writing of any such action; (b) gives AtScale sole control of the defense and/or settlement of such action; and (c) gives AtScale all reasonable information and assistance. Should the Software become, or in the opinion of AtScale be likely to become, the subject of such an infringement claim, AtScale may, at its option: (i) procure for Customer the right to use the Software at no cost to Customer; (ii) replace or modify, in whole or in part, the Software to make it non-infringing; or (iii) accept return of the Software, or remove the allegedly offending module thereof, and, refund a pro rata portion of the License Fees paid for such Software or module by Customer for the then-current Term. AtScale assumes no liability hereunder for: (w) any method or process in which the Software may be used; (x) any compliance with Customer’s specifications; (y) use of software other than a current unaltered release of the Software; or (z) the combination, operation or use of the Software with non-AtScale programs or data other than those intended or recommended by AtScale, and Customer shall indemnify and hold harmless AtScale and its officers, directors, employees, agents, successors and assigns against any damages, losses, and expenses (including reasonable attorneys’ fees) arising from any third-party action to the extent based upon a claim that the Software infringes any copyright or trademark or misappropriates any trade secret due to any of the foregoing factors, and shall give AtScale all reasonable information and assistance regarding such claim. THIS SECTION 6 SETS FORTH COMPANY’S ENTIRE LIABILITY AND OBLIGATION AND CUSTOMER’S SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS.

  2. Limitation of Liability. Customer agrees that AtScale’s liability hereunder for damages arising from performance or nonperformance of the Software, including but not limited to liability for infringement of intellectual property rights, shall be only as set forth in Sections 5 and 6 above. Each party further agrees that EXCEPT FOR BREACH OF SECTION 1.1 OR 1.2, BREACH OF SECTION 4, AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 6, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER TO COMPANY HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. EXCEPT FOR BREACH OF SECTION 1.1 OR 1.2, BREACH OF SECTION 4, AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 6, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR, EXCEPT AS PROVIDED IN SECTION 6, FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY LAW) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

  3. Term and Termination.

8.1 Term. Unless earlier terminated as provided in this Section 8, this Agreement and the license granted hereunder shall be effective as of the Effective Date and shall continue thereafter for the period specified in the Order Form (the “Initial Term”), and shall thereafter automatically renew for additional periods of twelve (12) months at AtScale’s then-current pricing for the Software unless either party provides written notice of its intention not to renew to the other party at least sixty (60) days prior to expiration of the current Term (each a “Renewal Term,” and collectively together with the Initial Term, the “Term”).

8.2 Termination. Either party shall have the right to terminate this Agreement and the license granted herein upon written notice in the event the other party fails to perform or observe any material term or condition of this Agreement and such default has not been cured within thirty (30) days after written notice of such default to the other party. AtScale may also terminate this Agreement immediately if the Customer: (a) terminates or suspends its business; (b) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute; (c) becomes insolvent or subject to direct control by a trustee, receiver or similar authority; or (d) has wound up or liquidated, voluntarily or otherwise.

8.3 Effect of Termination. The rights and obligations of AtScale and Customer in Sections 1.1, 2.2, 2.3 (to the extent payments accrued prior to termination or are otherwise due), 3, 4, 5.3, 6, 7, 8.3 and 9 shall survive termination of this Agreement. Except in the event of termination by Customer for AtScale’s material breach, all unpaid License Fees for the then-current Term shall become immediately due and payable upon termination of this Agreement. Within five (5) days after termination of this Agreement, Customer shall return to AtScale or, upon AtScale’s request, destroy, at Customer’s sole expense, all Confidential Information of AtScale and materials containing any Confidential Information of AtScale, the Licensed Materials, including all copies thereof, and deliver to AtScale a certification, in writing signed by an officer of Customer, that such Confidential Information, Licensed Materials and all copies thereof have been returned or destroyed, and their use discontinued. Nothing contained herein shall limit any other remedies that AtScale may have for the default of Customer under this Agreement nor relieve Customer of any of its obligations incurred prior to such termination.

  1. Miscellaneous.

9.1 Assignment. Customer shall not assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, to any third party without AtScale’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. Notwithstanding the foregoing, Customer shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise, conditioned upon (a) the parties’ mutual written agreement on any additional license fees payable pursuant to Section 1.1 as a result of such assignment and (b) the payment of such license fees. AtScale shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to this Section 9.1, this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.

9.2 Publicity. Upon execution of this Agreement, AtScale shall be entitled to represent Customer as a customer of AtScale. Customer will allow AtScale to use it as a reference account for marketing purposes, including allowing AtScale to reference Customer (as well as its logo) on its reference account customer lists in print and on its website.

9.3 Entire Agreement; Modification; Waiver. This Agreement, together with its exhibits, represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement, and is not intended to confer upon any third party any rights or remedies hereunder. Customer acknowledges that it has not entered in this Agreement based on any representations other than those contained herein. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing and signed by both parties. If there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Customer purchase order or other document, the terms and conditions of this Agreement shall prevail. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.

9.4 Delays. In the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement (other than any payment obligation) due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, or any other cause beyond the reasonable control of the party invoking this Section, and if such party shall have used its commercially reasonable efforts to mitigate its effects, such party shall give prompt written notice to the other party, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences.

9.5 Governing Law. This Agreement shall in all respects be governed by the laws of the State of California without reference to its principles of conflicts of laws. The parties hereby agree that all disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of and venue in the federal and state courts within Santa Clara County, California. Customer hereby consents to the personal and exclusive jurisdiction and venue of these courts.

9.6 Severability. If any provision of this Agreement is held invalid or unenforceable under applicable law by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the Agreement will remain in full force and effect.

9.7 Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever. Each party may identify the other as a customer or supplier, as applicable.

9.8 Notices. All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been given when delivered in person (including by overnight courier), or three (3) business days after being mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified in this Agreement or such other address as either party may specify in writing.

9.9 U.S. Government Restricted Rights. If Software is being licensed by the U.S. Government, the Licensed Materials are deemed to be “commercial computer software” and “commercial computer documentation” developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject solely to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.

9.10 Export Law Assurances. Customer understands that the Licensed Materials are subject to export control laws and regulations. CUSTOMER MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE LICENSED MATERIALS OR ANY UNDERLYING INFORMATION OR TECHNOLOGY EXCEPT IN FULL COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS, IN PARTICULAR, BUT WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS. NONE OF THE LICENSED MATERIALS OR ANY UNDERLYING INFORMATION OR TECHNOLOGY MAY BE DOWNLOADED OR OTHERWISE EXPORTED OR RE- EXPORTED: (a) INTO (OR TO A NATIONAL OR RESIDENT OF) ANY COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS; OR (b) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S LIST OF PROHIBITED COUNTRIES OR DEBARRED OR DENIED PERSONS OR ENTITIES. CUSTOMER HEREBY AGREES TO THE FOREGOING AND REPRESENTS AND WARRANTS THAT CUSTOMER IS NOT LOCATED IN, UNDER CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.

9.11 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

9.12 Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.

EXHIBIT A

MAINTENANCE AND SUPPORT SERVICES

Definitions. “Error” means a failure of the Software to conform to the specifications set forth in the Product Documentation, resulting in the inability to use, or material restriction in the use of, the Software.

“Maintenance Release” means a revision of the Software released by AtScale to its end user customers generally, during the Support Services Term, to correct Errors in the Software or to maintain the operation of the Software in accordance with the Product Documentation.

“Update” means either a software modification or addition that, when made or added to the Software, corrects the Error, or a procedure or routine that, when observed in the regular operation of the Software, eliminates the practical adverse effect of the Error on Customer.

“Upgrade” means a revision of the Software released by AtScale to its end user customers generally, during the Support Services Term, to add new and different functions or to increase the capacity of the Software. Upgrade does not include the release of a new product or added features for which there may be a separate charge.

Support Services. During the Support Services Term, AtScale shall provide the support services described below to Customer (the “Support Services”).

Customer Support Services.  AtScale shall provide customer support through its customer support center (“Customer Support Center”) which shall be available Monday through Friday, 9:00 a.m. to 5:00 p.m. local Customer time.

Updates.  AtScale will make commercially reasonable efforts to provide an Update designed to solve or by-pass a reported Error. If such Error has been corrected in a Maintenance Release, Customer must install and implement the applicable Maintenance Release; otherwise, the Update may be provided in the form of a temporary fix, procedure or routine, to be used until a Maintenance Release containing the permanent Update is available. AtScale shall reasonably determine the priority level of Errors, pursuant to the following protocols and take the following actions during the Customer Support Center hours:

    Severity 1 (S1):  An S1 is a major Error within the software that severely impacts the Customer’s use of the Software, where the production system is totally down or not fully functioning or mission critical applications or AtScale Projects are not usable and no workaround exists or loss of data.  AtScale promptly initiates the following procedures: (a) assigns support specialists to correct the Error on an expedited basis; (b) provides ongoing communication on the status of the issue; and (c) begins to provide a temporary workaround or fix.  AtScale responds to S1 production down issues within an hour of issue receipt.  All S1 issues must be logged on the AtScale Customer Portal.

    Severity 2 (S2):  An S2 is a medium to high impact Error within the software where the customer’s production system is functioning but in a degraded or restricted capacity, such as a problem that is causing significant impact to portions of the Customer’s business operations and productivity or major functionality is inoperable.   AtScale (a) assigns an AtScale support specialist to correct the Error on an expedited basis and (b) provides ongoing communication on the status of the issue.  AtScale exercises commercially reasonable efforts to provide a workaround or include a fix for the Severity 2 Errors in a forthcoming Maintenance Release.  AtScale responds to S2 issues within 4 hours of issue receipt. All S2 issues must be logged on the AtScale Customer Portal.

    Severity 3 (S3):  An S3 is a medium to low impact Error within the software that involves partial and/or non-critical loss of functionality, such as a problem that that impairs some operations but allows the Customer’s operations to continue to function.  AtScale responds to S3 production issues within one (1) business day of issue receipt.  AtScale will triage the request and may include a resolution via workaround.  AtScale responds to S3 issues next business day.  All S3 issues must be logged on the AtScale Customer Portal.

    Severity 4 (S4):  An S4 is a low priority request for information where there is no impact to business operations. This could include a ‘how to’ product question, a need to clarify procedures or information in documentation, a request for a product enhancement or an administrative request relating to the AtScale Customer Portal.  AtScale responds to Severity 4 requests within one (1) business day of issue receipt.

Initial Response Definition.  AtScale will provide an initial response to Customer reports of a problem based on the severity and the definitions above, as summarized in the table below.  An initial response is the first reply to the reported issue and may not constitute a resolution at that time.
Severity Initial Response Time
S1 Production Down 1 hour
S2 Core Feature Inoperative 4 hours
S3 Minor Feature Inoperative Next day
S4 Request for Info Next day

Maintenance Releases and Upgrades. During the Support Services Term, AtScale shall make the Maintenance Releases available to Customer if, as and when AtScale makes any such Maintenance Release generally available to its customers. If a question arises as to whether a product offering is an Upgrade or a new product or feature, AtScale’s opinion shall prevail, provided that AtScale treats the product offering consistently for its end user customers generally.

Conditions for Providing Support.  AtScale’s obligation to provide Support Services is conditioned upon the following: (a) Customer makes reasonable efforts to solve the problem after consulting with AtScale; (b) Customer provides AtScale with sufficient information and resources to correct the problem either at AtScale’s Customer Support Center or via dial-up access at Customer’s site, as well as access to the personnel, hardware, and any additional software involved in discovering the problem; (c) Customer promptly installs all Maintenance Releases; and (d) Customer procures, installs and maintains all equipment, telephone lines, communication interfaces and other hardware necessary to operate the Software.

Technical Support Contacts. The AtScale Customer Support Center will provide on-line support to one (1) contact as mutually agreed upon by the parties (“Technical Support Contacts”). Technical Support Contacts will develop or support the Software.  They will be the only interface to the AtScale Customer Support Center.  Additional Technical Support Contacts may be permitted for an additional fee.

Exclusions from AtScale’s Support Services. AtScale is not obligated to provide Support Services in the following situations: (a) the Software has been changed, modified or damaged (except if under the direct supervision of AtScale); (b) the problem is caused by Customer’s negligence, hardware malfunction or other causes beyond the reasonable control of AtScale; (c) the problem is with third party software not licensed through AtScale; (d) Customer has not installed and implemented all available Maintenance Release(s) so that the Software is a version supported by AtScale; or (e) Customer has not paid the Support Services fees when due.

Termination of Support Services. AtScale reserves the right to discontinue the Support Services should AtScale, in its sole discretion, determine that continued support for any Software is no longer economically practicable or for any other reason. AtScale will give Customer at least three (3) months prior written notice of any such discontinuance of Support Services and will refund any unaccrued Support Services fees Customer may have prepaid with respect to the affected Software.  AtScale offers twenty-four (24) months of support from the general availability of a new Major Release. Minor Releases will be supported a minimum of twelve (12) months from the general availability of the Minor Release.  AtScale reserves the right to suspend performance of the Support Services if Customer fails to pay any amount that is payable to AtScale under the Agreement within thirty (30) days after such amount becomes due.

OHSUSA:765610535.2