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EXHIBIT 10.31
July 10, 1997
AGREEMENT NO.: SSA______
Page 1 of 9
SOFTWARE SUPPORT AGREEMENT
AT&T Corp. (AT&T), a New York corporation having a place of business at 32
Avenue of the Americas, Xxx Xxxx, Xxx Xxxx, 00000-0000, X.X.X. and Auspex
Systems Inc., having a principal office at, for itself and its SUBSIDIARIES
(collectively referred to herein as LICENSEE) agree that, after execution of
this Agreement by LICENSEE and acceptance of this Agreement by AT&T, the terms
and conditions set forth in this Agreement shall apply to AT&T's Basic Service
that become subject to this Agreement.
Such Services shall become subject to this Agreement on acceptance by AT&T of a
Supplement executed by LICENSEE that identifies (i) the particular Services and
associated charges; (ii) the particular AT&T SOFTWARE PRODUCT(S) to which such
Services apply; (iii) the applicable SITE CONTACT; and (iv) any other terms and
conditions which are to apply with respect to the Services and SOFTWARE PRODUCTS
listed in the applicable Supplement. Initially, Supplement(s) No. 01 are
included in and made part of this Agreement. Additional Supplements may be added
to this Agreement to include additional Services, SITE CONTACTS and/or SOFTWARE
PRODUCTS or to add or replace Services, SITE CONTACTS and/or SOFTWARE PRODUCTS
covered by previous Supplements. Each such additional Supplement shall be
considered part of this Agreement when executed by LICENSEE (if required) and
accepted by AT&T.
AGREED TO:
AUSPEX SYSTEMS, INC. AT&T
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1. DEFINITIONS
1.1. AT&T TECHNICAL SUPPORT - The single point of contact for all
support correspondence relating to a specific SOFTWARE PRODUCT.
Contact information is provided in the Supplement for the product
covered.
1.2. BEST EFFORT - Commercially reasonable efforts with consideration
given to the circumstances and consequences.
1.3. COMPUTER PROGRAM - Any instruction or instructions, in source code
or object format, for controlling the operation of a CPU.
1.4. DOCUMENTATION - Manuals and other documentation necessary for a
customer to install and use a SOFTWARE PRODUCT.
1.5. FIX - The collection of additional or replacement lines of source
code or documentation written to remedy a PROBLEM with a SOFTWARE
PRODUCT.
1.6. HOURS OF COVERAGE: Specified in Supplement for product covered.
1.7. MAINTENANCE UPDATES - Maintenance updates are made up of software
fixes to reported problems provided from time to time by AT&T which
will consist of the following:
1.7.1. Distributions of a SOFTWARE PRODUCT designated by AT&T as a
change in the digits to the right of the decimal [x.(yz)]
in the SOFTWARE PRODUCT and version number. Such an
additional distribution shall be called an Update Release.
1.7.2. New or modified DOCUMENTATION or information regarding such
DOCUMENTATION.
1.8. OTHER ASSISTANCE - Includes all questions and service requests
regarding the function and operation of the SOFTWARE PRODUCT, and
response to queries with regard to urgent bugs which may have been
encountered.
1.9. PROBLEMS - Deviations from the specifications of any SOFTWARE
PRODUCT. Two types of problems can exist:
1.9.1. PROBLEMS in a SOFTWARE PRODUCT
1.9.2. PROBLEMS in the DOCUMENTATION of the SOFTWARE PRODUCT
1.10. REMEDIAL ASSISTANCE - Includes the furnishing of FIXES and/or
WORKAROUNDS to reported PROBLEMS that are demonstrable on
unmodified source code that render a SOFTWARE PRODUCT substantially
unusable. FIXES and/or WORKAROUNDS for less severe PROBLEMS will be
provided at the discretion of AT&T.
1.11. SEVERITY DEFINITION:
1.11.1. XXXXX 0 - Problem has a critical impact for a LICENSEE's
customer to the point that the problem renders a system
non-functional, including but not limited to occurrence of
data corruption, or in LICENSEE's development, no further
work can be done until the problem is resolved. A maximum
effort will take place until the problem is solved and FIX
delivered to LICENSEES' development organization.
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1.11.2. LEVEL 2 - Problem is causing a major loss in productivity
for a LICENSEE's end user for which a WORKAROUND is
available and in LICENSEE's development, a problem that
affects the scheduled release of a LICENSEE's end user
product. FIX will be delivered to LICENSEES' development
organization or scheduled into a maintenance release.
Delivery will be scheduled based on complexity of
development and system test required to ensure quality.
1.11.3. LEVEL 3 - Problem has minor impact on the user community
and causes little or no loss of productivity. Problem will
be worked and scheduled into the next version release at
AT&T's option or a fix or WORKAROUND will be provided to
the customer for the existing version release.
1.11.4. LEVEL 4 - Reports that are classified enhancements or
design changes that require review by Systems Engineering.
1.12. SITE CONTACT - LICENSEES designated point of contact with AT&T
TECHNICAL SUPPORT under this Agreement.
1.13. SOFTWARE AGREEMENT - An Agreement between LICENSEE and AT&T
authorizing LICENSEE to use a SOFTWARE PRODUCT.
1.14. SOFTWARE PRODUCT - Materials such as COMPUTER PROGRAMS, information
used or interpreted by computer programs and documentation relating
to the use of computer programs. Materials available from AT&T for a
specific SOFTWARE PRODUCT are listed in the Supplement for such
SOFTWARE PRODUCT.
1.15. STANDARD OBJECTIVE RESPONSE TIME - For Basic Service, the Standard
Objective Response Time is defined as the elapsed time from the time
AT&T TECHNICAL SUPPORT receives notification until it acknowledges
receipt of said PROBLEMS and the result of AT&T's efforts to
reproduce the problem.
1.16. WORKAROUND - A procedure by which a user can, by a limited number of
user changes that do not require delivery of software to avoid a
reported PROBLEM.
1.17. VERSION RELEASE of a product means a release designated by the
licensor of the product as a change in the digit to the left of the
decimal [(x).yz] in the product version number.
2. ELIGIBILITY FOR SERVICES
To be eligible for Services for a SOFTWARE PRODUCT, LICENSEE must meet the
following requirements:
2.1. LICENSEE has a valid SOFTWARE AGREEMENT for the SOFTWARE PRODUCT;
2.2. LICENSEE has a single contact knowledgeable in the SOFTWARE PRODUCT;
2.3. LICENSEE's PROBLEMS must be demonstrable on unmodified source code
on a system configuration supported by the AT&T reference system.
2.4. LICENSEE agrees that the obligation of AT&T to continue to provide
Services with respect to a SOFTWARE PRODUCT shall terminate if, at
any time during the Term of the applicable Supplement, any
additional eligibility requirements specified in such Supplement
relating to
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Services for such SOFTWARE PRODUCT are not met. Nothing in this
Agreement shall be construed to obligate AT&T to make available to
LICENSEE support for a SOFTWARE PRODUCT during the entire term of
the applicable SOFTWARE AGREEMENT for such SOFTWARE PRODUCT.
3. BASIC SOFTWARE SUPPORT DESCRIPTION
Basic Software Support Service ("Basic Service") - Provides REMEDIAL
ASSISTANCE, MAINTENANCE UPDATES and/or OTHER ASSISTANCE during the HOURS
OF COVERAGE.
4. REQUESTS FOR BASIC SUPPORT
Requests by LICENSEE for Services pursuant to this Agreement shall be made
by contacting AT&T TECHNICAL SUPPORT at the email address or facsimile
number designated in Appendix A. LICENSEE may change its authorized
designated Customer Site Contact upon ten (10) days prior written notice
to AT&T. Only the designated LICENSEE Customer Site Contact(s) may
initiate contact with AT&T Technical Support.
5. RESPONSE TIME FOR BASIC SUPPORT
5.1. For Basic Service, the STANDARD OBJECTIVE RESPONSE TIME will be:
5.1.1. Level 1: Within 24 hours.
5.1.2. Level 2: Within 48 hours.
5.1.3. Level 3: Within 5 days.
5.1.4. Level 4: Within 10 days.
5.2. For Basic Service AT&T will work to provide FIXES and WORKAROUNDS
according to the following criteria:
5.2.1. XXXXX 0 & 2: AT&T will use its best efforts to provide a
FIX or WORKAROUND and that AT&T will work continuously to
provide a FIX or WORKAROUND.
5.2.2. XXXXX 0 & 4: AT&T will provide a FIX or WORKAROUND at its
discretion.
6. PREMIER SUPPORT:
6.1 AT&T will provide the following additional support to the
LICENSEE in consideration for the fee supplement outlined in the SOFTWARE
SUPPORT AGREEMENT AND SCHEDULE.
6.1.2 AT&T agrees to provide to LICENSEE four days of training at
the customer site. This will consist of two days of training for
LICENSEE's developers and two days of training for LICENSEE's test
personnel. LICENSEE agrees to pay all travel and living expenses for
AT&T's training representatives.
6.1.3 AT&T agrees to provide to LICENSEE one hour per week of
telephone consultation during LICENSEE's program development phase and
only to representatives that are par of the LICENSEE's program
development group. This will terminate once the LICENSEE releases a
commercially available product offering based on the SOFTWARE PRODUCT.
6.1.4 AT&T will provide to LICENSEE's product support engineers up
to 8 hours of telephone consultation each month. Such time cannot be
accumulated to exceed the 8 hour per
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month maximum. Telephone support will not exceed 72 hours during the
twelve month period this agreement is in effect.
7 SOFTWARE SUPPORT EXCLUSIONS
Notwithstanding anything in this Agreement to the contrary and unless
expressly agreed to by AT&T, Services to be provided under this Agreement
do not include and charges quoted by AT&T do not include:
7.1 Support of a SOFTWARE PRODUCT which has been modified by other than
AT&T on the LICENSEE's operating system environment and hardware
platform.;
7.2 Making specification changes or performing services connected with
relocation of a SOFTWARE PRODUCT;
7.3 Modification or replacement of a SOFTWARE PRODUCT, repair of damage
or increase in service time caused by failure to continually
provide a suitable operational environment with all facilities
prescribed by the applicable manual including, but not limited to,
the failure to provide, or the failure, of adequate electrical
power, temperature control or humidity control;
7.4 Modification or replacement of a SOFTWARE PRODUCT, repair of damage
or increase in service time caused by the use of a SOFTWARE PRODUCT
for other than the purposes for which it is licensed, or not in
accordance with AT&T operating guidelines;
7.5 Modification or replacement of a SOFTWARE PRODUCT, repair of damage
or increase in service time caused by accident; disaster, which
shall include, but not be limited to fire, flood, water, wind and
lightening; transportation; neglect or misuse; modifications,
maintenance or repairs performed by other than AT&T;
7.6 Support of any SOFTWARE PRODUCT not listed in a Supplement hereto
or support of interfaces to any such SOFTWARE PRODUCT;
7.7 Modification or replacement of a SOFTWARE PRODUCT or increase in
service time caused by the use of a SOFTWARE PRODUCT in combination
with other software or materials not furnished by AT&T, or in
combination with other software or materials furnished, but not
combined by AT&T;
7.8 Work external to a SOFTWARE PRODUCT, whether or not on such
SOFTWARE PRODUCT's DESIGNATED CPU as defined in the SOFTWARE
AGREEMENT.
8. SUPPORT OF RELOCATED SOFTWARE
If authorized under the terms of a Software Agreement, LICENSEE may
relocate a SOFTWARE PRODUCT to a different CPU of a configuration on
which the SOFTWARE PRODUCT can be supported by AT&T. Support will
continue to be provided on relocated SOFTWARE PRODUCT as long as LICENSEE
notifies AT&T, in writing and within ten (10) business days of the
SOFTWARE PRODUCT'S relocation.
9. OBLIGATIONS OF LICENSEE
9.1 LICENSEE must provide AT&T with information sufficient for AT&T to
duplicate the circumstances under which a PROBLEM in a SOFTWARE
PRODUCT became apparent.
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9.2 All communication by LICENSEE to AT&T must be in the English
Language.
10. MAINTENANCE UPDATES AND FIXES
LICENSEE agrees that all MAINTENANCE UPDATES and FIXES furnished to
LICENSEE with respect to a SOFTWARE PRODUCT shall be deemed to be part of
such SOFTWARE PRODUCT subject to the terms and conditions of the SOFTWARE
AGREEMENT for the SOFTWARE PRODUCT.
11. TERM
Each Supplement to this Agreement:
11.1 Shall have an initial term of one (1) year commencing on the date
indicated on each such Supplement ("Initial Term") and
11.2 Shall be automatically renewed for successive one (1) year terms at
AT&T's then current rates for the selected Services, unless and
until terminated by either party by written notice to the other at
least sixty (60) days prior to the expiration of the Initial Term
or any then current renewal thereof. If AT&T's rates for any
selected Services shall be increased for any renewal term, LICENSEE
may, no later than thirty (30) days from receipt of notice of such
increase, elect to terminate such Services by written notice to
AT&T. As used herein, "Term" shall mean the Initial Term and any
renewals thereof.
12. PRICE, PAYMENT AND INVOICES
12.1 The price for Basic Service is calculated on an annual basis and is
based on the SOFTWARE PRODUCT. Prices are shown in the Supplement
to this Agreement for each covered SOFTWARE PRODUCT and are payable
within thirty (30) days from the date of each invoice which will be
submitted by AT&T during the Term hereof, whether or not LICENSEE
requests Service hereunder, unless otherwise specified.
12.2 Payments provided for in this Agreement shall, when overdue, be
subject to a late payment charge calculated at a rate of three
percent (3%) per month until paid; provided, however, that if the
amount of such late payment charge exceeds the maximum permitted by
law for such charge, such charge shall be reduced to such amount.
13. TERMINATION AND DEFAULT
13.1 If LICENSEE fails to pay any invoice in full within a period of
thirty (30) days after the same is due and such failure continues
for a period of ten (10) days after AT&T gives notice to LICENSEE
thereof, then, in addition to all other rights and remedies at law
or otherwise, AT&T shall have the right to terminate this Agreement
upon thirty (30) days notice to LICENSEE without any liability to
AT&T whatsoever.
13.2 Except for LICENSEE's failure to make payments, as herein above set
forth, either party may terminate this Agreement on notice if the
other party has defaulted in the performance of its obligations
under this Agreement, has breached any material provision of this
Agreement, or becomes insolvent, invokes as a debtor any laws
relating to the relief of debtors' or creditors' rights, or has
such laws invoked against it as a debtor. Such termination shall be
effective thirty (30) days after notice, unless such default or
breach has been cured or the terminating party is satisfied with
the other party's solvency within that time.
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14. WARRANTY
AT&T warrants to LICENSEE that Services hereunder will be performed in a
professional manner and in accordance with good usage and accepted
practices as established in the community in which such Services are
performed. If such Services prove to be not so performed, and if LICENSEE
notifies AT&T within a ninety (90) day period commencing on the date of
completion of the Service, AT&T will, at its option, either correct any
defects and deficiencies for which it is responsible or render prorated
refund or credit based on the original charge for the Services.
THE FOREGOING WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER EXPRESS
AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSEE'S SOLE AND
EXCLUSIVE REMEDY RELATIVE TO WARRANTY SHALL BE AT&T'S OBLIGATION TO MAKE
CORRECTIONS OR GIVE CREDIT OR REFUND AS SET FORTH ABOVE IN THIS WARRANTY.
15. LIMITATION OF LIABILITY
AT&T SHALL IN NO EVENT BE LIABLE TO LICENSEE, OR ANY PERSON OR ENTITY
USING ANY SERVICE SUPPLIED UNDER THIS AGREEMENT, FOR LOSS OF TIME,
INCONVENIENCE, LOSS OF USE OF ANY SOFTWARE PRODUCT OR EQUIPMENT OR
PROPERTY DAMAGE CAUSED BY ANY SOFTWARE PRODUCT OR EQUIPMENT OR THEIR
FAILURE TO WORK, OR FOR ANY OTHER INDIRECT, SPECIAL, RELIANCE, INCIDENTAL
OR CONSEQUENTIAL LOSS OR DAMAGE ARISING OUT OF THIS AGREEMENT OR ANY
OBLIGATION RESULTING THEREFROM, OR THE USE OR PERFORMANCE OF ANY SOFTWARE
OR PRODUCTS WHETHER IN AN ACTION FOR OR ARISING OUT OF ALLEGED BREACH OF
WARRANTY, ALLEGED BREACH OF CONTRACT, DELAY, NEGLIGENCE (ACTIVE OR
PASSIVE), STRICT TORT LIABILITY OF OTHERWISE. AT&T'S ENTIRE LIABILITY FOR
ANY CLAIM OR LOSS, DAMAGE, OR EXPENSE FROM ANY CAUSE WHATSOEVER SHALL IN
NO EVENT EXCEED THE PERFORMANCE, REPAIR OR REPLACEMENT COST, OR PURCHASE
PRICE AT AT&T'S OPTION, OF THE SERVICE OR ITEM WHICH DIRECTLY GIVES RISE
TO THE CLAIM. NO ACTION OR PROCEEDING AGAINST AT&T MAY BE COMMENCED MORE
THAN TWO (2) YEARS AFTER THE SERVICES ARE COMPLETED. THIS PARAGRAPH SHALL
SURVIVE FAILURE OF AN EXCLUSIVE REMEDY.
16. NONWAIVER
No course of dealing, course of performance, or failure of either party
strictly to enforce any term, right or condition of this Agreement shall
be construed as a waiver of any term, right, or condition. No waiver of
breach of any provision of this Agreement shall be construed to be a
waiver of any subsequent breach of the same or any other provision.
17. FORCE MAJEURE
Except with respect to LICENSEE's obligation to make timely payments,
neither party shall be held responsible for any delay or failure in
performance to the extent that such delay or failure is caused by fires,
strikes, embargoes, explosions, earthquakes, floods, wars, water, the
elements, labor disputes, government requirements, civil or military
authorities, acts of God or by the public enemy, inability to secure raw
materials or transportation facilities, acts or omissions of carriers or
suppliers, or other causes beyond its control whether or not similar to
the foregoing.
18. CHOICE OF LAW
The construction, interpretation, and performance of, and all transactions
under this Agreement, shall be governed by the substantive, but not the
conflicts, law of the State of California
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19. ENTIRE AGREEMENT
The terms and conditions contained in this Agreement supersede all prior
oral or written understandings between the parties, shall constitute the
entire agreement between the parties with respect to the subject matter of
this Agreement and shall not be contradicted, explained or supplemented by
any course of dealing between AT&T or any of its affiliates and LICENSEE
or any of its affiliates. AT&T employees' statements and AT&T
advertisements or descriptions other than its published specifications do
not constitute warranties or other contractual obligations, and shall not
be relied upon by LICENSEE as such. This Agreement shall not be modified
or amended except by a writing signed by an authorized representative of
both parties.
20. ASSIGNMENT
This Agreement may not be assigned by LICENSEE without the prior written
consent of AT&T.
21. PARTIES BOUND
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective legal representatives, heirs,
successors and assignees.
22. NOTICE
22.1 All notices under this Agreement (except for requests for Service)
shall be in writing and shall be given by telegram or similar
communication, or by Certified mail, postage prepaid addressed to
LICENSEE or to AT&T at the address listed in Section WRITTEN
NOTICES, or to such other address as either party may designate by
notice pursuant hereto. Such notice shall be deemed to have been
given when received.
22.2 Any statement, notice, request or other communication shall be
deemed to be sufficiently given to addressee and any delivery
hereunder deemed made when sent by certified mail addressed to
LICENSEE at its office specified in the Agreement or to AT&T at the
appropriate address specified in this section.
22.3 Each party to this Agreement may change an address relating to it
by written notice to the other party.
23. SEVERABILITY
If any paragraph, or clause thereof, in this Agreement shall be held to
be invalid or unenforceable in any jurisdiction in which this Agreement
is being performed, then the meaning of such paragraph or clause shall be
severed from this Agreement and the remainder shall remain in full force
and effect. However, in the event such paragraph or clause is considered
an essential element of this Agreement, the parties shall promptly
negotiate a replacement thereof. If the parties are unable to agree upon
a replacement term within thirty (30) days of the final ruling rendering
such term invalid or unenforceable, either party may terminate this
Agreement upon ten (10) days prior written notice.
24. TAXES
Any tax or related charge resulting from this Agreement or any activities
hereunder, exclusive of any tax based on or measured by net income, which
AT&T shall be required to pay or collect for any government shall be
billed to LICENSEE as a separate item and shall be paid by LICENSEE,
unless a valid exemption certificate is furnished by LICENSEE to AT&T.
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25. WRITTEN NOTICES AND PAYMENTS
Payments to AT&T relating to this Agreement shall be sent to:
AT&T
X.X. Xxx 00000
Xxxxxxx, XX 00000
Correspondence with AT&T relating to this Agreement shall be sent to:
AT&T
OEM Business Manager
Room 2A361
0000 X. Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Correspondence with LICENSEE relating to this Agreement shall be sent to:
General Counsel,
Auspex Systems
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx Xxxxx, XX 00000
