AUTHORIZED TECHNICAL SUPPORT PROVIDER AGREEMENT [K Neg. Reseller must have a
reseller agreement currently in place or being negotiated at the same time as
this agreement.
This WORLDWIDE Authorized Technical Support Provider Agreement (the
"Agreement"), with an Effective Date of September 2002 (the "Effective Date"),
is between LEGATO SYSTEMS, INC., a Delaware corporation with an office at 0000
Xxxx Xx Xxxxxx Xxxx, Xxxxxxxx Xxxx, XX 00000, ("Legato") and MTI TECHNOLOGY
CORPORATION, a DELAWARE corporation, with its principal place of business at
0000 X. XXXXXXX XXX, XXXXXXX, XX 00000 ("Reseller").
RECITALS
Whereas Reseller sells its own technical support services to Reseller's
customers who have licensed Legato software; and
Whereas Legato requires Reseller to purchase Technical Support if Reseller is
providing its own technical support services to licensees of Legato software.
Now therefore the parties agree as follows:
1. Legato will provide services to Reseller as selected below and as defined
in this Agreement. Reseller acknowledges that by initialing below and
executing this Agreement that Reseller is agreeing to purchase the services
selected.
NUMBER OF CASES AND SERVICES FEES
CHOOSE ONE AND INITIAL [K NEG: RESELLER MUST PICK AT LEAST ONE. IF THEY PICK AN
OPTION, IT MUST BE IN THE SAME COLUMN AT THE ATSP LEVEL.]
ATSP LEVEL I ATSP LEVEL II
40 Cases @ US$24,000 200 Cases SLIT 100 US/100 EMEA @ US$80,000
__________ with 5 Contacts MH with 10 Contacts EACH US/EMEA
(Initial) ----
(Initial)
OTHER OPTIONS: CHOOSE, IF DESIRED, AND INITIAL
PSAM Level I @ US$lO,OOO/ (2)PSAM Level II @ US$22,500/year: MH
year: __________ (Initial) ----
(Initial)
ESS Level I @ US$25,000/ ESS Level II @ US$35,000/year: __________
year: __________ (Initial)
(Initial)
2. The TERM of this Agreement shall be as follows:
a. Until the number of Cases are expended or for one (1) year
from the Effective Date, whichever comes first; and, if
applicable,
b. For a PSAM option and/or an ESS option, the Term shall be for
one year from the Effective Date. If Reseller exercises an option
for a PSAM and/or an ESS after the Effective Date of this
Agreement, the fees shall be prorated so that these options
terminate at the end of the Term.
The terms and conditions that govern this Agreement are attached hereto and
incorporated as an integral part of the Agreement by reference, including
Exhibit A - Reseller Contact Information Form, Exhibit B - Legato Support
Performance Management and Measurement Criteria, Exhibit C - Management
Escalation Process (PSAM Option) and Exhibit D - On-Site Replication and/or
Technical Support Terms and Conditions Sample.
The parties have read the foregoing, along with the applicable terms and
conditions, and have caused this Agreement to be executed by their duly
authorized representatives.
LEGATO SYSTEMS, INC. RESELLER: MTI Technology Corporation
By: /s/ XXXXXXX X. BAKCICH By: XXXX XXXXXXX
------------------------------ ------------------------------
AUTHORIZED REPRESENTATIVE AUTHORIZED REPRESENTATIVE
Name: Xxxxxxx X. Xxxxxx Name: Xxxx Xxxxxxx
--------------------------- ----------------------------
Title: Vice President, Sales Title: Chief Financial Officer
-------------------------- ---------------------------
Date: Date: December 31, 2002
--------------------------- ----------------------------
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AUTHORIZED TECHNICAL SUPPORT PROVIDER AGREEMENT
TERMS AND CONDITIONS
1 DEFINITIONS
1.1 ADMINISTRATIVE CONTACT: means Reseller's designee responsible for the
Legato relationship and allocation of Technical Contacts within
Reseller's organization. This is a non-technical role in the
relationship; the Administrative Contact cannot open Cases but is
authorized to escalate existing Cases unless such Administrative
Contact is also a Technical Contact (as defined hereunder).
1.2 BUSINESS DAY: means Monday through Friday, 8:00 am. to 5:00 p.m.,
Reseller's local time, except published Legato holidays.
1.3 CASE: means one (1) distinct documented Problem initiated by a
Technical Contact that is reported to Legato Customer Support and
recorded in Legato's Problem Tracking System. Each Problem is assigned
a case number for record and tracking purposes. A separate Case must be
created for each, distinct Problem. Throughout the Problem diagnostic
and resolution process for each Case, there will be a requirement for
ongoing communications utilizing the telephone, email or a combination
of both with Legato's Customer Support Department.
1.4 END-USER: means the person or entity that agrees to the terms of
Legato's then-current, standard End-User License Agreement and is
authorized to access and use the Software.
1.5 ENHANCEMENT: means a new feature or functionality not available in the
current Software release, tracked as a Request for Feature Enhancement
("RFE").
1.6 ESCALATION (ESCALATE): means the request by Reseller to expedite the
resolution process of a specific Problem.
1.7 ESS: means an Enterprise Support Specialist
1.8 FIX: means the repair or replacement of object or executable code
versions of Software to remedy a Problem.
1.9 PERFORMANCE SCORECARD: means the results of Reseller's performance as
measured by Legato against the performance management rating criteria
as defined in Exhibit B.
1.10 PSAM: means a Premium Support Account Manager.
1.11 PROBLEM: means an error in the Software that causes it not to conform
materially to the Documentation.
1.12 PROBLEM RESOLUTION: means the use of commercially reasonable efforts to
correct a Problem.
1.13 RELEASE: means the general release version of the Software containing
feature function enhancements. General form of the Release is: X.yy.z
where X represents a Major Release or base level version; yy represents
a Minor Release; and z represents a Bug fix Release.
1.13.1 BUG-FIX RELEASE: means a Revision of the Software that corrects a
Problem.
1.13.2 MINOR RELEASE: means a Revision of the Software that delivers minor
improvement, incremental features or enhancements of existing features,
and/or functionality to the Software.
1.13.3 MAJOR RELEASE: MEANS A REVISION OF THE SOFTWARE THAT DELIVERS
significant improvements or enhancements of existing features and/or
functionality to the Software.
1.14 PROBLEM TRACKING SYSTEM: means the Legato tracking system used open
Cases in order to document and track resolution of Problem.
1.15 REPLICATION: means Reseller must provide to Legato details of how the
Problem can be recreated, and specific details regarding the platform
on which the problem can be recreated; however in cases where
replication is unsuccessful, Reseller must provide evidence of the
steps taken with all relevant details like the platform, OS, hardware
and software details about the unsuccessful attempt.
1.16 REVISION: means the interim version of a Release containing code
corrections and product quality improvements.
1.17 SEVERITY: means a technical or functional description and the
associated business impact of a reported Problem.
1.18 SOFTWARE: means the Legato computer software programs which are
licensed in object code form, including any error corrections and
Updates provided by Legato.
1.19 SUPPORT LEVELS: means the various levels of support services, as
follows:
1.19.1 LEVEL 1 SUPPORT: means the initial response (and
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any follow-up response as appropriate) to a support request. Level 1 Support
includes initial information gathering and includes: answering Software
installation, configuration, functionality or usage questions; initial Problem
and failure information gathering; Problem isolation, identification, and/or
providing standard Fixes and Workarounds to known Problems; and escalating
unresolved problems to Level 2 Support.
1.19.2 LEVEL 2 SUPPORT: means a second, higher level of technical support and
includes: Problem isolation, identification, and Replication; providing
standard Fixes and Workarounds to known Problems; providing Problem
Resolution for both new and known complex Problems; gathering and
analyzing all relevant system log files; and Escalating unresolved
Problems or those requiring formal Problem Resolution to Level 3
Support by submitting the then-current problem escalation form
available from Legato technical support staff
1.19.3 LEVEL 3 SUPPORT: means a level of remote support provided by Legato
technical support staff and consists of identification and replication
of Problems; providing new Fixes and Workarounds to Problems,
resolution of Problems through formal Problem Resolution procedures;
and assistance requiring knowledge of Software.
1.20 TECHNICAL CONTACT: means Reseller's designated technical support
contact as identified in Exhibit I. Names and contact information for
Technical Contacts must be provided to Legato prior to any Reseller
requests.
1.21 TECHNICAL SUPPORT: means Xxxxx 0 Support, defined as a level of remote
support provided by Legato technical support staff to Reseller and
consists of identification and Replication of Problems; providing new
Fixes and Workarounds to problems, resolution of problems through
formal problem resolution procedures; and assistance requiring
knowledge of Software.
1.22 WORKAROUND: means a temporary solution or Fix that restores operational
capability without severely compromising the performance of the
Software or integrity of the operating system or data. Workarounds may
include changes to configuration parameters or operational processes.
2 SCOPE.
2.1 This Agreement provides for remote telephone assistance, access to
self-help, on-line resources, and Fixes only, provided by Legato's
Support Services for the number of Cases selected on Page 1 of this
Agreement. Additionally, if Reseller selected on Page 1 of this
Agreement the delivery of Services from an ESS, and/or the delivery of
services from a PSAM, then this Agreement shall also provide for such
delivery of services from said resources. Support shall be provided by
Legato only to support Reseller who is supporting End-Users who have
paid for Updates. Any Reseller requested visits to Reseller's or
End-User's site by Legato shall be governed under the terms and
conditions of Exhibit D and shall be charged separately at the
then-current rate, plus living and travel expenses. The number of
Contacts supported for each ATSP Level is as specified on Page 1 of
this Agreement. Support shall be provided only to Technical Contacts
identified by Reseller by submission of a completed Exhibit A form, as
amended from time to time by Reseller. If Reseller determines that
additional Technical Contacts are required, Reseller may add them at
Legato's then-current standard fees for such additional Technical
Contacts.
2.2 Support is available to Reseller 365 days a year, twenty-four hours a
day. If Reseller selects the PSAM option and/or the ESS option, the
availability of these personnel is as described in Sections 14 and 15
respectively.
2.3 NUMBER OF CASES. Legato shall provide Reseller with a Performance
Scorecard on the number of Cases Reseller has opened for Technical
Support, in addition to other statistical information regarding the
Cases. Legato agrees that if it is determined that the Problem
determined in the Case is not a known Legato product defect, i.e., one
that has not been published in Legato's knowledge base nor documented
in publications distributed to Reseller, the Reseller will not be
"charged" for that Case.
3 FEES
3.1 SUPPORT FEES. Reseller agrees to purchase Technical Support from Legato
for the selected number of Cases and to pay the selected associated
fees specified on Page 1 of this Agreement.
3.2 PAYMENT TERMS. Reseller shall pay all invoices without offset within
thirty (30) days of the invoice date. In the event of a disputed
invoice, Reseller will promptly notify Legato and the parties agree to
work in good faith to resolve such dispute in a timely fashion.
4 LEGATO RESPONSIBILITIES.
4.1 Legato shall provide Technical Support for the number of Cases selected
by Reseller during the Term of this Agreement, as well as a PSAM and/or
an ESS if Reseller chooses the option(s).
4.2 PERFORMANCE SCORECARD. Pursuant to Exhibit B, Legato shall gather
Reseller's information from the
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Cases opened by Reseller according to the "Measurement" criteria and
shall be analyzing the results per the "Metrics" column of Exhibit B in
order to score Reseller's performance to this Agreement. Legato shall be
reviewing said results with the Reseller every six (6) months after the
Effective Date of this Agreement. If Reseller is determined to be "non
Compliant" as defined in Exhibit B, its performance shall be reviewed
every month thereafter, rolling the data to include the latest six months
information. Once a Reseller is determined to be "non-compliant", its
metrics must fall within "compliant" as defined in Exhibit B for six
consecutive months for the Reseller to be considered "compliant."
4.3 PROBLEM RESOLUTION. During the term of this Agreement, Legato shall
exercise commercially reasonable efforts to resolve any Problem reported
by Technical Contact in the current Release or the prior unmodified minor
Release of the Software in accordance with the Severity level reasonably
assigned to such Problem by Reseller and confirmed by Legato or
re-assigned as mutually agreed to by the parties. The Severity levels are
as defined below:
4.3.1 XXXXXXXX XXXXX 0, XXXXXXXX: means that a business process and system
functionality are critically affected. A system Workaround is required
immediately;
4.3.2 SEVERITY LEVEL 2, SERIOUS: means that a business process and system
functionality are seriously affected; system and/or data is exposed to
potential loss or interruption. Near-term system Workaround is required;
4.3.3 SEVERITY XXXXX 0, XXXXXX XXXXXX: means business process and system
functionality are moderately affected; critical system and/or data not at
risk. System Workaround requested; and
4.3.4 SEVERITY XXXXX 0, XXX: means business process and system functionality
are marginally affected or unaffected. System and/or data not at risk.
Request for minor Fix, information or RFE.
4.4 CASE TRACKING. During the term of this Agreement, Legato shall receive
and track Cases reported by the Technical Contact via telephone or e-mail
twenty-four hours per day, 365 days per year ("24X365").
4.5 TECHNICAL SUPPORT. During the Term of this Agreement, Legato will provide
Technical Support to Technical Contacts for new Severity 1 Cases 24X365.
Severity 1 Problems must be reported via telephone. Legato will provide
Technical Support assistance to Technical Contacts for Severity 2,
Severity 3 and Severity 4 Problems during regular business hours on
Legato's Business Days.
4.6 SERVICE LEVEL OBJECTIVES. During the Term of this Agreement, Legato shall
use its commercially reasonable efforts to meet the following service
level objectives and response times.
FIRST CONTACT
SEVERITY TECHNICAL STATUS
LEVEL RESPONSE FREQUENCY PROBLEM RESOLUTION
----- -------- --------- ------------------
1 30 minutes daily Continuous
2 1 hour daily Continuous Business
Days
3 4 hours weekly As required
4 1 Business monthly As required
Day
The initial callback is by a technical support engineer. In the case of a
Severity 1 Problem, Legato will use commercially reasonable efforts to
expedite resolution of the Problem 24X365.
4.7 Frequency of ongoing communication between Legato's technical support
engineers and the Technical Contact is intended to drive Problem
Resolution and may change when jointly agreed to by parties.
4.8 LIMITATIONS OF SUPPORT. Legato will have no obligation to support: (i)
modified or damaged Software or any portion of the Software incorporated
with or into other software; (ii) Software that is not the current
Release or the prior unmodified minor Release of the Software; (iii)
problems caused by Reseller's negligence, abuse or misapplication, use of
the Software other than as is specified in the Documentation, or other
causes beyond the control of Legato; or (iv) Software installed with any
hardware or software that is not supported by Legato. Legato will not be
responsible for the cost of any changes to Reseller's hardware or
software which may be necessary to use the Software due to a Workaround
or Update.
4.9 RECLASSIFICATION OF SEVERITY LEVEL. Legato reserves the right to
downgrade the Severity of a Case as solutions are provided to lessen the
Problem impact or in the event that the Technical Contact does not engage
cooperatively in like resolution efforts.
4.9.1 If the information, as specified in Section 5.2.3 is not received by
Legato via telephone or email for Severity Level 1 Cases within 1 hour
of reporting, the Case will be downgraded to Severity Level 2. If
information, as specified in Section 5.2.3 is not received by Legato via
telephone or email regarding
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Severity Level 2 within one (1) day of reporting, it will be downgraded
to Severity Level 3.
4.10 CASE CLOSURE. Case closure occurs when one of the following conditions
has satisfied the operational requirements of Reseller's environment:
4.10.1 A solution or answer provided;
4.10.2 A Fix is provided;
4.10.3 A Workaround as mutually agreed by the parties is provided;
4.10.4 Other vendor solution is identified (i.e. Operating System, Network or
Hardware)
4.10.5 Documentation bug submitted;
4.10.6 A Problem is identified and the Fix is incorporated into a future
Release.
4.10.7 A Request for Enhancement is submitted.
4.10.8 If information requested in Section 5.2.3 regarding any reported Severity
Level 3 Problems is not received by Legato within 5 days of reporting.
5 RESELLER'S RESPONSIBILITIES.
5.1 During the Term of this Agreement the Reseller shall have a valid
Reseller Agreement in place with Legato and shall be in substantial
compliance with the terms and conditions therein.
5.2 Additionally, during the Term of this Agreement, the Reseller shall
provide:
5.2.1 Technical Contacts. All Technical Contacts must either be certified or
completed technical training. Reseller shall complete an Exhibit A form
and return it to Legato within three (3) Business Days of the Effective
Date, with identification of a minimum of one (1) Technical Contact and
one (1) alternate. Reseller shall communicate permanent changes or
additions to Contact list at least two (2) business days prior to any
request by a new Contact for any technical assistance, by submitting a
newly completed Exhibit A to Legato. Changes to the Contact list are
exclusive of any additional cost provided that no new contacts are added.
5.2.2 Case Management. Comply with requirement that all Case activity be opened
and managed by Technical Contacts.
5.2.3 PROBLEM REPORTING/REPLICATION. It is the responsibility of the Reseller
to provide effective problem replication. For those Cases where
replication is unsuccessful, the Reseller must provide evidence of the
steps taken with all relevant details like the platform, OS, hardware and
software details about the unsuccessful attempt. The specifics of the
information required to be reported electronically or telephonically, is
contained on a form located at the following url:
xxx.xxxxxx.xxx/xxxxxxx/xxxxxxxxxxxxxx/xxxxxx_xxxx.xxx
5.2.4 Reseller may submit the form to Legato or may refer to the questions in
the form when submitting the information Legato requires.
5.2.5 MINIMUM TECHNICAL CONTACT REQUIREMENTS. To the best of its abilities,
read, comprehend and follow operating instructions and procedures as
specified in, but not limited to, Documentation and other correspondence
related to the Software; and will follow procedures and recommendations
provided by Legato support personnel in an effort to correct Problems.
5.2.6 PROBLEM NOTIFICATION. Notify Legato of Problems in accordance with the
then-current Legato problem reporting procedures. If Legato reasonably
believes that an end-user's problem reported by Reseller may not be due
to a Problem in the Software, Legato will so notify Reseller.
5.2.7 ACCESS TO INFORMATION. Subject to Reseller's security requirements,
Reseller will provide Legato with access to and use of all information
and system facilities reasonably determined necessary by Legato to
provide timely support pursuant to the terms herein. To the extent
Reseller's computing system environment permits remote access, Reseller
shall provide Legato with all required user IDs and passwords so that
Legato may endeavor to remedy any Problems, in whole or in part, via
remote system access.
6 ESCALATION PROCEDURE FOR SEVERITY 1 CASES.
6.1 With respect to Severity Level 1 Problems, if the parties have not
determined a mutually satisfactory Problem Resolution within a reasonable
timeframe and there is non-arbitrary and non-capricious disagreement
between the parties as to the appropriate procedure to follow to reach
such Problem Resolution, then either party may escalate the Problem as
follows:
6.2 Reseller and Legato will work to ensure that proper resources are brought
to bear on Escalated problems that are Software related. The parties'
efforts, will include, where necessary or appropriate as mutually
determined by the parties, Reseller's and Legato's assignment of
additional technical support personnel, and establishment of escalation
specific processes,
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5
operations and management contacts (the "Escalation Action Plan").
6.3 Each party will designate its Escalation management contact that will be
available at any time (24 hours a day, 7 days a week). Reseller's
escalation management contact will contact Legato dispatch for routing to
the appropriate Legato management contact to develop an action plan. This
plan will outline the specific steps the parties will take. When both
parties agree that an Escalated Problem has achieved Problem Resolution,
the Escalation shall be closed.
6.4 If Reseller has selected the PSAM Option, the Escalation Procedure for
Severity Level 1 Cases shall be as defined in Section 15.
7 OTHER ERRORS.
7.1 If Legato reasonably believes that an end-user's Problem reported by
Reseller may not be due to a problem in the Software, Legato will so
notify Reseller, who then may either: (i) instruct Legato to proceed with
Problem determination at Reseller's possible expense, as further provided
below; or (ii) advise Legato that Reseller does not wish the Problem
pursued at its possible expense, in which case Legato may elect, at its
sole discretion, to not pursue the Problem without liability therefore.
7.2 If Reseller requests that Legato proceed with Problem determination at
Reseller's possible expense, and Legato subsequently determines that the
error was not caused by a Problem in the Software, Reseller shall
compensate Legato for all work performed in connection with such
determination on a time and materials basis, plus reasonable related
expenses incurred therewith, at Legato's then-current professional
services time and materials rates.
7.3 Reseller shall not be liable for:
7.3.1 Legato's work on problem determination or repair associated with or
resultant from Problem(s) in the Software;
7.3.2 Work performed by Legato, which was not authorized pursuant to Reseller's
instruction, as provided in Section 7.1 (i) above;
7.3.3 Work performed by Legato after receipt of Reseller's notice that it no
longer wishes Legato to work, at Reseller's expense, on a problem that
Legato previously identified as a problem that may not be caused by the
Software. Reseller's notice will be effective as of the date such notice
is actually received by Legato.
8 OWNERSHIP
8.1 RIGHTS OF LEGATO. Reseller acknowledges that Legato provides services to
other Resellers of Legato and agrees that nothing in this Agreement will
be deemed or construed to prevent Legato from carrying on such business.
9 TERM AND TERMINATION
9.1 The term of this Agreement is as specified in Section 2 of Page 1, unless
terminated earlier as provided in this Section 9. However, if Reseller
utilizes all the Cases it has paid for prior to the end of the
anniversary of the Effective Date, and Reseller requires an extension of
Technical Support under this Agreement, Legato shall prorate the
remaining months by dividing the amount paid for the Cases indicated on
Page 1 of this Agreement by 12 and charging Reseller that amount for each
remaining month until the anniversary date of the Effective Date; and
Reseller shall issue Legato a purchase order for the prorated amount.
9.2 NON-RENEWAL. Legato shall have the option to not renew this Agreement if,
within the term of this Agreement, during any six month rolling period,
Reseller has been classified as "Non-Compliant" in the metrics and such
classification has not improved to "Compliant."
9.3 TERMINATION OF SOFTWARE SUPPORT. Legato shall have the right not to renew
Technical Support for any Software by providing written notice of such
election at least ninety (90) days prior to the termination of such
support services for that Software, provided that Legato no longer
generally provides Technical Support for such Software, or, upon renewal,
no longer provides the specific services previously offered.
9.4 TERMINATION OF RESELLER AGREEMENT. Legato shall have the right to
terminate this Agreement if Reseller's Reseller Agreement is terminated
by Legato for cause. If this Agreement is terminated pursuant to this
Section, then Legato shall refund Reseller a pro-rated amount based on
the remaining time period or unused Cases, whichever applies.
9.5 SURVIVAL OF TERMS. The following terms shall survive any expiration or
termination of this Agreement: Sections: 1,Definitions; 3, Fees, 8,
Ownership: 9, Term and Termination; 10, Warranty and Disclaimer; and 11,
Limitation of Liability.
10 WARRANTY AND DISCLAIMER
10.1 LIMITED WARRANTY. Legato warrants that services provided hereunder will
be performed with the same degree of skill and professionalism as is
demonstrated by like professionals performing services of a similar
nature. Legato does not provide
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a guarantee to fix any reported problems or provide Fixes within a
pre-defined time frame. Legato hereby disclaims all warranties express or
implied, statutory, or otherwise, including without limitation any
implied warranties of merchantability, fitness for a particular purpose,
and non-infringement. Legato actively solicits RFE's from its Resellers,
however, this in no way commits Legato to implement any such changes. In
addition, Technical Support is limited to assisting Reseller with current
production Software and does not include support of other software
(device drivers, shell scripts or special programs) or hardware (tape
drives, autochanger, etc.) not normally supported or certified by Legato.
11 LIMITATION OF LIABILITY.
11.1 LIMITATION OF LIABILITY. In addition to the Limitation of Liability set
forth in Reseller's applicable Software license agreement with Legato,
and notwithstanding anything in this Agreement or the license agreement
to the contrary or the failure of an essential purpose of any limitation
of liability of limited remedy, Legato's entire aggregate liability
arising from or relating to this Agreement, under any legal theory
(whether in contract, tort, indemnity or otherwise), will be limited to
the amounts paid by Reseller for the Updates and Technical Support for
the applicable year.
11.2 LIABILITY ARISING FROM REMOTE ACCESS. To the extent that Reseller suffers
any damage as a direct result of Legato or Legato's employees or agents
intentionally committing any wrongful act in connection with the use of
user ID's and/or passwords to gain remote access to Reseller's computer
system, Legato will remain liable for damages suffered by Reseller.
12 NON-SOLICITATION
12.1 NON-SOLICITATION. Neither party will, during the Term or any renewal
hereof, and for one (1) year after its termination, solicit for hire as
an employee, consultant or otherwise any of the other party's personnel
who have had direct involvement with the performance of this Agreement,
without such other party's express written consent.
13 TAXES
13.1 Reseller is responsible for payment of all taxes of every kind imposed in
connection with the sale to Reseller of Technical Support or which Legato
may incur in respect of this Agreement (except for taxes imposed on
Legato's income) including all import duties, customs fees, levies or
imposts, and all sales, use, value added, gross receipts or other taxes
of any nature and any penalties, interest and collection or withholding
costs associated with any of the foregoing items. All such amounts are in
addition to other amounts payable hereunder and this obligation shall
survive termination or expiration of this Agreement.
14 PSAM OPTION. If Reseller chooses one of the PSAM Options on Page 1 of
this Agreement, Legato shall provide the following services.
14.1 PREMIUM SUPPORT ACCOUNT MANAGER ("PSAM"). During the term of this
Agreement Legato shall assign a PSAM to Reseller, to provide account
management services during the Business Day. The services provided by the
PSAM include:
14.1.1 monthly conference calls to gain familiarity with Reseller's environment,
build Reseller's account profile, review of Case activity;
14.1.2 proactive notification of patch availability, bulletins and Software
alerts;
14.1.3 single point of Contact for situation and Escalation management; and
14.1.4 liaison for Reseller's feedback and suggestions regarding Software,
including RFEs, to Legato's product management group.
14.2 ALTERNATE PSAM. Legato will provide an alternate PSAM contact point when
PSAM is unavailable due to training, vacation or other attrition.
14.3 ESCALATION PROCESS. If Reseller has selected the PSAM Option on Page 1 of
this Agreement, then the Escalation Process used for Severity Level 1
Cases shall be as specified in Exhibit C.
15 ENTERPRISE SUPPORT SPECIALIST ("ESS") OPTION. If Reseller chooses one of
the ESS options on Page 1 of this Agreement, Legato shall provide the
following services within the Business Day:
15.1 A designated Senior Legato Support Engineer who is most experienced in
the Legato Software and customer configurations, and is the single
`technical' point of contact for this Reseller providing focused
technical support. During the Business Day, the ESS will receive incoming
Cases from the Reseller, and assume responsibility to bring the Case to
closure. It is the responsibility of the ESS to work closely with the
designated Partner's Support staff and the PSAM, if applicable, to build
an ongoing relationship, and to resolve technical Cases in a timely
manner.
15.2 The ESS will:
15.2.1 Monitor case progression, ensuring efficient and accurate resolution.
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15.2.2 Assist in Problem identification and resolution, expediting Legato
Software issues within Legato's Product Specialist and Current Product
Engineering groups.
15.2.3 Manage escalation through Legato Technical Support Management team.
16 REPLICATION SUPPORT FROM A REMOTE SITE. If Reseller requires Legato to
replicate a Problem from a remote site, the fees for such support are
$1500 per day, and Reseller agrees to pay such additional fees by
submitting to Legato a purchase order or an email of its authorization
to proceed with the intention to pay.
17 ON-SITE REPLICATION SUPPORT. If Reseller requires Legato to replicate a
Problem on its or its End-User's site, the fees for such support are
$2500 per day, plus travel and living expenses, and Reseller agrees to
pay such additional fees by submitting to Legato a purchase order or an
email of its authorization to proceed with the intention to pay. The
terms and conditions for the provision of such on-site services shall
be governed by the terms in Exhibit D.
18 ON-SITE TECHNICAL SUPPORT. If Reseller requires additional Legato
support for itself or Reseller's End-User for a particular situation,
then Legato shall provide such services for the fees specified in
Section 17, plus travel and living expenses, and under the terms and
conditions in Exhibit D.
19 ENFORCEMENT OF AGREEMENT
19.1 GOVERNING LAW. This Agreement shall be governed by the laws of the
State of
California, as applied to agreements entered into and to be
performed entirely within
California between
California residents,
without regard to the principles of conflict of laws or the United
Nations Convention on Contracts for the International Sale of Goods.
19.2 JURISDICTION. The U.S. federal and state courts of the State of
California located in Santa Xxxxx County shall have sole and exclusive
jurisdiction and venue for all actions arising from or relating to this
Agreement. The parties expressly waive any objection to the
jurisdiction, venue, or convenience of such courts.
19.3 ASSIGNMENT. Neither this Agreement nor any rights or obligations
hereunder, in whole or in part, shall be assignable or otherwise
transferable by Reseller. Any unauthorized attempt by Reseller to
assign or transfer this Agreement or any rights or obligations
hereunder shall be null and void. Legato may assign or transfer this
Agreement to (i) any of its majority-owned subsidiaries or affiliates,
or (ii) to an entity that acquires a controlling interest in Legato as
the result of a merger or sale of substantially all of Legato's assets
or capital stock.
19.4 NO WAIVER. Failure by either party to enforce any provision of this
Agreement will not be deemed a waiver of future enforcement of that or
any other provision, nor will any single or partial exercise of any
right or power hereunder preclude further exercise of any other right
hereunder.
19.5 EQUITABLE RELIEF. The parties agree that a breach of this Agreement
adversely affecting Legato's intellectual property rights in the
Software or Documentation may cause irreparable injury to Legato for
which monetary damages may not be an adequate remedy and Legato shall
be entitled to equitable relief in addition to any remedies it may have
hereunder or at law.
19.6 SEVERABILITY. If for any reason a court of competent jurisdiction finds
any provision of this Agreement, or portion thereof, to be
unenforceable, that provision of the Agreement will be enforced to the
maximum extent permissible so as to effect the intent of the parties,
and the remainder of this Agreement will continue in full force and
effect.
19.7 FORCE MAJEURE. Except for the obligation to make payments,
nonperformance of either party shall be excused to the extent
performance is rendered impossible due to causes beyond such party's
reasonable control.
20 ENTIRE AGREEMENT.
20.1 RESELLER. The provisions of this Agreement, including any Schedules,
Appendices, Attachments or Exhibits, constitute the entire agreement
between the parties with respect to the subject matter hereof, and
this Agreement supersedes all prior agreements or representations, oral
or written, regarding such subject matter, including _________________.
[insert Partner Care agreements that this ATSP agreement will
supercede.] This Agreement may not be modified or amended except in a
writing signed by a duly authorized representative of each party. Each
party agrees that use of pre-printed forms, including, but not limited
to e-mail, purchase orders, acknowledgements or invoices, is for
convenience only and all pre-printed terms and conditions stated
thereon, except as specifically set forth in this Agreement, are void
and of no effect. Unless otherwise expressly set forth in an Addendum,
Exhibit, Attachment or Schedule, as so designated, in the event of
conflict between this ATSP
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Authorized Technical Support Provider Agreement Legato Confidential
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8
Agreement and any Addendum, Exhibit, Attachment or Schedule, the terms
of this ATSP Agreement shall prevail.
20.2 NOTICES. Any notice, report, approval or consent required or permitted
hereunder shall be in writing and will be deemed to have been given if:
(i) delivered personally; (ii) mailed by registered air mail postage
prepaid; or (iii) sent by facsimile followed by a hard-copy
confirmation, to the respective addresses of the parties set forth
below or as may be otherwise designated by like notice from time to
time.
If to Legato:
LEGATO SYSTEMS, INC
0000 Xxxx Xx Xxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
XXX
Attention: General Counsel
Telephone: 000 000-0000
Facsimile: 000 000-0000
If to Reseller:
[RESELLER NAME]
MTI
[Reseller street address]
0000 X. Xx Xxxxx Xxx.
[City, State/Province, Country, Zip/Postal Code]
Xxxxxxx, Xx 00000
XXX
Attention: [Contact Name]
Xxxxx Xxxxx
Telephone No.: [Contact Telephone No.]
000-000-0000
Facsimile No.: [Contact Fax No.]
000-000-0000
Email: xxxxxx@xxx.xxx
IN WITNESS WHEREOF, THE PARTIES HAVE CAUSED THIS AGREEMENT TO BE EXECUTED BY
THEIR DULY AUTHORIZED REPRESENTATIVES.
LEGATO SYSTEMS, INC: RESELLER:
MTI Technology Corporation
By: /s/ XXXXXXX XXXXXX By: /s/ XXXX FRAUZER
------------------------- --------------------------------
AUTHORIZED REPRESENTATIVE
Name: Name: Xxxx Frauzer
------------------------ -------------------------------
Title: Title: Chief Financial Officer
----------------------- ------------------------------
Date: Date: December 31, 2002
------------------------ -------------------------------
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Authorized Technical Support Provider Agreement Legato Confidential
051402 9 US/Canada
EXHIBIT A
RESELLER CONTACT INFORMATION FORM
-----------------------------------------------------------------------------------------------------
RESELLER NAME:
MTI TECHNOLOGY CORPORATION
Address 0000 X. XX XXXXX XXX
Address
City, State, Zip XXXXXXX, XX 00000
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
ADMINISTRATIVE CONTACT: XXXXX XXXXXX LEGATO CONTACT CODE (LEGATO USE ONLY)
Phone Number 000-000-0000 FAX #
E-mail Address XXXXXXX@XXX.XXX Pager/Cell #
-----------------------------------------------------------------------------------------------------
TECHNICAL CONTACT #1: XXXXXX XXXXX Legato Contact Code (Legato use only):
Phone Number 000-000-0000 FAX #
E-mail Address XXXXXX@XXX.XXX Pager/Cell #
-----------------------------------------------------------------------------------------------------
TECHNICAL CONTACT #2: XXXXXXX XXX Legato Contact Code (Legato use only):
Phone Number 000-000-0000 FAX #
E-mail Address XXXX@XXX.XXX Pager/Cell #
-----------------------------------------------------------------------------------------------------
TECHNICAL CONTACT #3: XXXXXX XXXXXX Legato Contact Code (Legato use only):
Phone Number 000-000-0000 FAX #
E-mail Address XXXXXXX@XXX.XXX Pager/Cell #
-----------------------------------------------------------------------------------------------------
TECHNICAL CONTACT # 4: XXXXXXXX XXXXXXXX Legato Contact Code (Legato use only):
Phone Number 000-000-0000 FAX #
E-mail Address XXXXXXXXX@XXX.XXX Pager/Cell #
-----------------------------------------------------------------------------------------------------
TECHNICAL CONTACT #5: XXXXX XXXXXXX Legato Contact Code (Legato use only):
Phone Number 000-000-0000 FAX #
E-mail Address XXXXXXXX@XXX.XXX Pager/Cell #
-----------------------------------------------------------------------------------------------------
FOR ATSP LEVEL 2 OR FOR
ADDITIONAL TECHNICAL CONTACTS
-----------------------------------------------------------------------------------------------------
TECHNICAL CONTACT #6: XXXXXXX XXXXXXXXXX Legato Contact Code (Legato use only):
Phone Number 000-000-0000 FAX #
E-mail Address XXXXXXXXXXX@XXX.XXX Pager/Cell #
-----------------------------------------------------------------------------------------------------
TECHNICAL CONTACT #7: XXXXX XXXXXX Legato Contact Code (Legato use only):
Phone Number 000-000-0000 FAX #
E-mail Address XXXXXXX@XXX.XXX Pager/Cell #
-----------------------------------------------------------------------------------------------------
TECHNICAL CONTACT # 8: XXXXX XXXXXXX Legato Contact Code (Legato use only):
Phone Number 000-000-0000 FAX #
E-mail Address XXXXXXXX@XXX.XXX Pager/Cell #
-----------------------------------------------------------------------------------------------------
TECHNICAL CONTACT #9: Legato Contact Code (Legato use only):
Phone Number FAX #
E-mail Address Pager/Cell #
-----------------------------------------------------------------------------------------------------
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Authorized Technical Support Provider Agreement Legato Confidential
051402 US Canada
10
--------------------------------------------------------------------------------
TECHNICAL CONTACT #10: Legato Contact Code (Legato use only):
Phone Number FAX #
E-mail Address Pager/Cell #
--------------------------------------------------------------------------------
RESELLER'S NAME
------------------------------------- -----------------------------------
(AUTHORIZED SIGNATURE) (PRINTED NAME)
------------------------------------- -----------------------------------
(TITLE) (DATE)
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXX Xxxxxxxxx Xxxxxx Xxxxxxxxxxxx
000000 XX Canada
11
EXHIBIT B
LEGATO SUPPORT PERFORMANCE MANAGEMENT AND MEASUREMENT CRITERIA
MEASUREMENT METRIC MEASUREMENT PROCESS
% of Severity 1 Cases 0 - 4% = 2 pts EXCEPTIONAL STATUS
submitted that are in the 5 - 9% = 1.5 pts
Primus Knowledge Base 10 - 14% = 1.0 pt Aggregate total of 8 or more points AND score 25% or
AND contain a "Fix" 15 - 29% = 0.5 pt less in % of Cases required by Legato to Replicate
statement. > 30% = 0 pt
% of ALL Cases submitted 0 - 4% = 3 pts COMPLIANT STATUS
that are in Primus 5 - 9% = 2 pts
Knowledge Base AND 10 - 19%= 1 pt Aggregate total between 3 - 7.99 points OR score 25%
contain a "FIX" statement. > 20% = 0 pt or less in % of Cases required by Legato to Replicate
% of Cases submitted to 25% or less = 3 pts NON-COMPLIANT STATUS
Legato that require 26 - 35% = 2 pts
Replication 36 - 50% = 1 pt Aggregate total less than 3 points
> 50% = 0 pt Monthly review, based on 6-month rolling average
# days for relief-to-closure 0 - 7 days = 1 pt
of Case 8 - 15 days = 0.5 pt
> 15 days = 0 pt
% of authorized/trained l00% = 1 pt
Technical Contacts 50 - 99% = 0.5 pt
< 50% = 0 pt
================================================================================
Authorized Technical Support Provider Agreement Xxxxxx Xxxxxxxxxxxx
000000 XX, Xxxxxx
12
EXHIBIT C
MANAGEMENT ESCALATION PROCESS (PSAM OPTION)
If Reseller has chosen a PSAM Option, listed below is the Severity Level 1
Escalation Process:
ELEMENTS OF TIME BASED ESCALATIONS
-INITIAL SEVERITY 1:
Customer Support Engineer ("CSE") committed to hourly update of
progress to Reseller (technical contact)
- 30 MINUTES
CSE has made initial response.
- 1 HOUR LATER
CSE updates Reseller technical contact
Clarify notification via email to PSAM
- 2 HOURS LATER
CSE updates Reseller technical contact
PSAM gets status from CSE and calls Reseller management team
NOTE: PSAM check case notes prior to calling CSE
- 3 HOURS LATER
CSE updates Reseller technical contact
- 4 HOURS LATER
Customer Support Management receives email notification from Clarify
CSE updates Reseller technical contact
Customer Support Management updates PSAM.
PSAM informs sales team
PSAM talks with Reseller Management Team
- 5 HOURS LATER
CSE updates Reseller technical contact
- 6 HOURS OR NEXT BUSINESS DAY
IF NECESSARY, PSAM gets an update from customer support management.
PSAM informs Reseller management and Legato sales.
CSE formally (sub-case created) engages PSE team member
CSE updates Reseller technical contact
- 8 HOURS LATER
Legato Senior Managers notified (Vice President, along with
other key regional support managers within Legato Technical Support)
Current Product Engineering (CPE) management notified
Director of WW Premium Support is informed by PSAM
CSE updates Reseller technical contact
-9-11 HOURS LATER
CSE updates Reseller technical contact hourly
-12 HOURS LATER
Legato Senior Management team notified via internal "Hotshot"
notification
-Hotshot Audience: Vice President Technical Support; Director
of Premium Support
Legato Engineering team should be engaged by CSE in support of the
troubleshooting effort
- 24 HOURS LATER
Formal update of Legato Executive Team via Hotshot notification
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Authorized Technical Support Provider Agreement Xxxxxx Xxxxxxxxxxxx
000000 XX, Xxxxxx
13
EXHIBIT D
ON SITE REPLICATION AND/OR TECHNICAL SUPPORT TERMS AND CONDITIONS
SAMPLE
If Legato is providing On-Site Replication and/or Technical Support personnel at
Reseller's request, the following terms and conditions apply to that
transaction. Unless defined otherwise herein, capitalized terms used in this
Exhibit shall have the same meaning as set forth in the Agreement. For the
purpose of this Exhibit D only, the definition of Technical Support, in addition
to its defined meaning in Section 1 of the Agreement, includes on-site
Replication of the Problem.
1. ON-SITE TECHNICAL SUPPORT FEES. If Reseller requests Legato to provide
on-site Technical Support for a Problem at its or its End-User's site,
the fees for such support are $2500 per day, plus travel and living
expenses, and Reseller agrees to pay such additional fees by submitting
to Legato a purchase order or an email of its authorization to proceed
with the intention to pay.
The purpose of the On-Site Support is based on CASE NO.: ______________
reported to Legato by the Reseller.
Description of Problem to be Resolved:
On-Site Technical Support fees exclude applicable taxes, and
travel/living expenses, which will be separately invoiced, and due upon
receipt.
2. GENERAL
2.1 CONFIDENTIAL INFORMATION AND OWNERSHIP. In the performance of the
On-Site Technical Support services, employees of each party may
receive confidential information and materials of the other
("Confidential Information"). Confidential Information includes (i)
either party's business or financial information and plans; (ii) the
price, scope, and terms of this Agreement; (iii) any other items
identified as being confidential by either party. Confidential
Information will not include information that the receiving party can
show: (a) is or becomes publicly known or available through no fault of
the receiving party; (b) was in its possession prior to receipt from
the disclosing party, as evidenced by business records; (c) was
lawfully obtained from a third party who has the right to make such
disclosure; (d) is independently developed as can be shown by
documentation; or (e) is produced in compliance with applicable law or
a court order, provided the receiving party first gives the disclosing
party reasonable notice of such law or order. Both parties agree for
themselves, their employees, and subcontractors (if applicable) that
such information will be kept confidential, using the same degree of
care that each party uses to protect its own confidential information,
and not disclosed to third parties. It is understood that no patentable
or copyrighted material, trade secrets, or other intellectual property
is anticipated to be developed by either party as part of the provision
of On-Site Technical Support services. Otherwise, the parties will
execute a separate agreement accordingly.
2.2 LEGATO PROPRIETARY SOFTWARE. Legato may use certain Legato proprietary
software in performing services. Such items are owned by Legato or its
suppliers, who will at all times retain all rights, title and interest
therein. Reseller agrees not to: use such software for any purpose,
relicense, copy in whole or in part, modify, reverse engineer,
decompile or disassemble it. Any information gained by such USE will be
treated as Confidential Information. Upon termination of services,
Legato will remove such software from your systems or your
End-User's systems. Reseller agrees to certify in writing to Legato
that no other copies of such proprietary software remain in its
possession.
2.3 RELATIONSHIP OF THE PARTIES AND PROJECT RESPONSIBILITIES. In providing
the On-Site Technical Support services, Legato is an independent
contractor, and is neither an agent, partner, nor employee of Reseller.
Legato will determine the manner in which it will perform its services.
Reseller will provide reasonable access and facilities to Legato, as
mutually agreeable. Prior to commencement of the On-Site Technical
Support services, each party will advise the other of its designated
Technical Contact for the purposes of all notification requirements
hereunder.
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Authorized Technical Support Provider Agreement Legato Confidential
051402 US/Canada
14
