|
4. CUSTOMER'S OBLIGATIONS Customer agrees to ensure that, at all times during the term of this Agreement Customer shall:
<br />• For each installation site or System, assign and maintain, a technically skilled employee or agent who will serve as your primary contact
<br />with Stratus for each Covered System; and
<br />• Provide the names and phones numbers of up to four (4) individuals who are authorized to submit calls under this Agreement; and
<br />• Maintain the Covered System(s) in a manner consistent with all applicable product specifications provided by Stratus or the manufacturer;
<br />and
<br />• Provide at no charge to Stratus access to and use of suitable telecommunications equipment needed to establish data communication over
<br />the Stratus Service Network; and
<br />• Execute diagnostic routines and provide the results to Stratus; and
<br />• Access and make appropriate use of Stratus' Internet home page for technical support information; and
<br />• Notify Stratus of any configuration changes to the original Covered System configuration; and
<br />• Where appropriate, use the provided Stratus hardened drivers; and
<br />• Replace customer replaceable units under the remote direction of the Stratus CAC, Customer Engineer or Stratus Authorized Service
<br />Representative; and
<br />• Perform housekeeping services, such as, cleaning, replacing expendable parts (e.g.: batteries, printer ribbons), performing regular operating
<br />checks and providing necessary supplies pertaining to these services; and
<br />• Ensure that all of the data stored on the Covered System(s) is adequately duplicated, documented and protected. Stratus is not responsible
<br />for failure to do so, or for the cost of reconstructing data stored on disks, tapes, or other media that are lost or damaged during the
<br />performance of Services; and
<br />• Ensure that (1) all software installed on the Covered System(s) is properly licensed for use; (2) all non - supported hardware and software
<br />products are fully - compatible with the Stratus - supported hardware and software installed on each Covered System and are fully year -2000
<br />compliant; (3) all Covered System(s) are adequately protected against computer viruses; and
<br />• Install Software product updates and upgrades as made available; and
<br />• Maintain and operate at all times all Covered Systems in a fully redundant mode of operation.
<br />5. WARRANTIES
<br />5.1. WE WARRANT THAT WE WILL PROVIDE, IN A GOOD AND WORKMAN LIKE MANNER, THE SERVICES DESCRIBED IN
<br />THIS AGREEMENT AND IN EACH SERVICE SCHEDULE AND ANY ADDENDA ATTACHED THERETO.
<br />5.2. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES, TERMS AND /OR
<br />CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
<br />MERCHANTABILITY, SUITABLE QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT
<br />UNINTERRUPTED OR ERROR -FREE OPERATION OF A SYSTEM OR THAT ALL PRODUCT ERRORS OR DEFECTS WILL BE
<br />CORRECTED.
<br />6. LIMITATION OF LIABILITY IN NO EVENT SHALL STRATUS, ITS AFFILIATES OR THEIR RESPECTIVE SUB-
<br />CONTRACTORS BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, PROFIT OR BUSINESS, OR FOR ANY
<br />SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN AN ACTION OF CONTRACT, TORT
<br />OR OTHER LEGAL THEORY. EXCEPT WITH RESPECT TO LOSSES OR DAMAGES ARISING FROM BODILY INJURY (UP TO AND
<br />INCLUDING DEATH), BREACH OF CONFIDENTIALITY OBLIGATIONS, GROSS NEGLIGENCE AND WILFULL MISCONDUCT, THE
<br />LIABILITY OF STRATUS', ITS AFFILIATES, AND THEIR RESPECTIVE SUB - CONTRACTORS FOR DAMAGES FOR ANY CAUSE
<br />WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION (IN CONTRACT OR TORT), SHALL BE LIMITED TO THE
<br />AMOUNT THAT CUSTOMER WOULD HAVE PAID TO STRATUS FOR THE PREVIOUS TWELVE (12) MONTHS OF SERVICE FOR
<br />THE PRODUCT (S) THAT IS THE SUBJECT OF THE CLAIM.
<br />7. STRATUS PROPERTY Support software, including diagnostic routines, Active Service Network or Remote Service Network Agents
<br />and SNMP Agents, as well as support tools, and documentation ( "Property "), which we supply under this Agreement, are and shall at all times
<br />remain Stratus' exclusive property. Except where required by law, you agree not to make such Property available or disclose the contents thereof
<br />to any third parties other than your employees and contractors who are performing services for you and have a need to access such Property in
<br />relation to the Systems covered under this Agreement. You agree to take appropriate action, by instruction or agreement with your employees
<br />and contractors who are permitted access, to satisfy your obligations under this Agreement. Further, you agree to immediately return all such
<br />Property to us upon the expiration or termination of this Agreement and or applicable Service Schedule.
<br />8. CHANGES TO THE AGREEMENT TERMS In order to maintain flexibility in the manner, in which we provide service, we may,
<br />after the initial term of a Service Schedule, change the terms and conditions under which the Products listed on that Service Schedule are serviced
<br />under this Agreement, including any Addenda, by giving you not less than ninety (90) days prior written notice. These will only apply as of the
<br />effective date we specify in the notice. You have thirty (30) days from receipt of a change notice in which to reject, in writing the change, and
<br />thereby terminate this Agreement and all affected Service Schedules. Failure to reject the change indicates your conclusive acceptance of the
<br />change. Except as stated above, for a change to be valid it must be in writing and signed by both of us. Additional or different terns in any order
<br />or written communication from you are void.
<br />9. CONFIDENTIALITY
<br />9.1. "Confidential Information" shall mean any information held disclosed in confidence by one party (the "Discloser ") to the other party
<br />( "Recipient ") in connection with this Agreement. Confidential Information shall be so designated by Discloser in writing at the time of
<br />disclosure and if disclosed orally or in any form other than documentation marked with a legend designating it as such, shall be identified by
<br />Discloser as confidential or proprietary and reduced to writing and provided to the Recipient within fifteen (15) days of the date of the oral
<br />disclosure.
<br />9.2. Recipient shall not disclose to any third party the other party's Confidential Information and shall limit access and use to those of its
<br />
|