EXHIBIT 10.97
LEGATO AGREEMENT NO.: 271-ATSP-4453
[LEGATO LOGO]
LEGATO AUTHORIZED TECHNICAL SUPPORT PROVIDER AGREEMENT
This Authorized Technical Support Provider Agreement, including the attached
Exhibits (the "Agreement"), with an effective date commencing on the latest date
appearing next to the parties' signatures below (the "Effective Date"), is
between LEGATO SOFTWARE, a division of XXX Xxxxxxxxxxx, a corporation organized
under the laws of Massachusetts, located at 0000 Xxxx Xx Xxxxxx Xxxx, Xxxxxxxx
Xxxx, XX 00000 ("Legato"), and MTI TECHNOLOGY CORPORATION, a corporation
organized under the laws of Delaware, with its principal place of business at
00000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000 ("Reseller" "or "Customer"). All defined
terms referenced herein shall have the meaning set forth in the Reseller
Agreement, unless defined differently herein.
Whereas Legato and Reseller entered into a reseller agreement ("Reseller
Agreement") under which Legato grants Reseller rights to resell Legato's
Software and Updates; and
Whereas Reseller sells its own technical support services to its customers who
have licensed Legato Software; and
Whereas Legato requires Reseller to purchase Technical Support from Legato if
Reseller provides its own technical support services to licensees of Legato
Software.
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
1. Legato will provide Technical Support services to Reseller as defined in this
Agreement. Technical Support Fees will be determined by Legato based upon
Reseller's performance rating as further described in Section 4.2 of the Terms
and Conditions to this Agreement.
2. Legato agrees to provide additional services, if selected below, which are as
described further in this Agreement. Payment of the fees for the additional
service option(s) selected below (if any) shall be due and payable upon the
Effective Date of this Agreement, or, for future options for additional
services, upon the date that such additional services are ordered. 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, or the next anniversary date.
ADDITIONAL SERVICE OPTIONS: BELOW CHOOSE ONE OR BOTH, IF DESIRED, AND AFFIX
INITIALS
PSAM @ US$15,000/CONTRACT YEAR: X ESS @ US$35,000/CONTRACT YEAR:
_________
(Initial) (Initial) [ILLEGIBLE]
3. THE TERM of this Agreement shall commence on the Effective Date and shall
continue for one year ("Contract Year") plus 45 days grace as provided in
Section 9.
IN WITNESS WHEREOF, THE PARTIES HAVE CAUSED THIS AGREEMENT TO BE EXECUTED BY
THEIR DULY AUTHORIZED REPRESENTATIVES.
LEGATO SOFTWARE, a division of EMC RESELLER: MTI TECHNOLOGY CORPORATION
Corporation
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxx Xxxxxxxxx
----------------------------- -------------------------------
AUTHORIZED REPRESENTATIVE AUTHORIZED REPRESENTATIVE
Name: Xxxxxx X. Xxxxxx Name: Xxxx Xxxxxxxxx
Title: RE Xxxxxx CFO Legato Division Title: Chief Financial Officer
Date: 9-3-03 Date: 9-3-03
[STAMP]
DATE
9/3/03
APPROVED
LEGATO
CONTRACTS
[ILLEGIBLE]
BY
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LEGATO AGREEMENT NO.: 271-ATSP-4453
LEGATO AUTHORIZED TECHNICAL SUPPORT PROVIDER
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; the Administrative Contact
cannot open Cases but is authorized to escalate existing Cases unless such
Administrative Contact is also a Technical Contact.
1.2 BUG-FIX RELEASE: means a Revision of the Software that corrects a Problem.
1.3 BUSINESS DAY: means Monday through Friday, 8:00 a.m. to 5:00 p.m.,
Reseller's local time.
1.4 CASE: means one (1) distinct documented Problem initiated by a Technical
Contact that is reported to Legato's Technical Support organization 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 Technical Support organization.
1.5 END-USER ("EU"): 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.
1.6 ENHANCEMENT: means a new feature or functionality not available in the
current Software release, tracked as a Request for Feature Enhancement
("RFE").
1.7 ESCALATION (ESCALATE): means the request by Reseller to expedite the
resolution process of a specific Problem.
1.8 ESS: means an Enterprise Support Specialist.
1.9 FIX: means the repair or replacement of object or executable code versions
of Software to remedy a Problem.
1.10 MAJOR RELEASE: means a Revision of the Software that delivers significant
improvements or enhancements of existing features and/or functionality to
the Software.
1.11 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.
1.12 PERFORMANCE CRITERIA: means the performance by Reseller of all Level 1 and
Level 2 Support requirements, including those specified in Exhibit B,
measured as follows:
1.12.1 EXCEPTIONAL: means Reseller has met such requirements for more than
90% of the Cases escalated to Legato.
1.12.2 COMPLIANT: means Reseller has met such requirements for 70% to 90%
of the Cases escalated to Legato.
1.12.3 NON-COMPLIANT: means Reseller has met such requirements for less
than 70% of the Cases escalated to Legato.
1.13 PSAM: means a Premium Support Account Manager.
1.14 PROBLEM: means an error in the Software that causes it not to conform
materially to the Documentation.
1.15 PROBLEM RESOLUTION: means the use of commercially reasonable efforts to
correct a Problem.
1.16 PROBLEM TRACKING SYSTEM: means the Legato tracking system used to document
and track resolution of Problem.
1.17 PURCHASE ORDER: means i) a purchase order issued by Reseller to Legato for
Technical Support for an End-User or ii) the purchase by Reseller on
Legato's e-Commerce site of Technical Support for an End-User. The
information contained in the Purchase Order shall be consistent with any
Quotation that has been issued and contain this ATSP Agreement Number,
End-User name and address or site(s), End-User installed base, term of
Technical Support and the Technical Support Fee.
1.18 QUOTE (QUOTATION): means a document issued by Legato to Reseller which
specifies the Technical Support Fees which Reseller is expected to pay
Legato.
1.19 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.
1.20 REPLICATE/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,
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Reseller must provide evidence of the steps taken with all relevant
details like the platform, OS, hardware and software details about the
unsuccessful attempt.
1.21 REVISION: means the interim version of a Release containing code
corrections and product quality improvements.
1.22 SEVERITY: means a technical or functional description and the associated
business impact of a reported Problem.
1.23 SOFTWARE: means the Legato computer software programs which are licensed
in object code form, including any error corrections and updates provided
by Legato.
1.24 SUPPORTED END-USER ("SUPPORTED EU"): means an End-User for which Reseller
has issued a Purchase Order for Technical Support.
1.25 SUPPORT LEVELS: MEANS the various levels of support services, as follows:
1.25.1 LEVEL 1 SUPPORT: means the initial response (and any follow-up response
as appropriate) by Reseller to a support request. Xxxxx 0 Support
includes: taking ownership of Supported End-User; providing technical
assistance (help desk) to Supported End-Users; compiling and
maintaining a thorough diagnostic log; providing known Fixes and
Workarounds for Problems; resolving non-defect Problems; searching
eKnowledgeBase, PartnerNet and Product documentation; and escalate
unresolved problems to Level 2 Support.
1.25.2 LEVEL 2 SUPPORT: means a second, higher level of technical support
provided by Reseller to its End-User and includes: provision of
in-depth diagnostics; solving or providing a Workaround for Problems;
providing Problem source identification; providing onsite support;
performance of Problem Replication and Replication guidance; providing
Fix and Workaround verification; and Escalation of 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.
1.25.3 LEVEL 3 SUPPORT: means a level of remote support provided by Legato
technical support staff and consists of: Verification of Level 1 and
Level 2 support delivery by Reseller; repair of replicated code
defects; in-house validation of code Fixes; delivery of validated Fixes
to Reseller; provision of new Fixes and Workarounds for Problems;
resolution of Problems through formal Problem resolution procedures;
providing proactive defect notifications to Reseller; other assistance
requiring knowledge of the Software; delivery of chalk talks and
hosting of Knowledge-Share program.
1.26 TECHNICAL CONTACT: Means Reseller's designated technical support contact
as identified in Exhibit 1.
1.27 TECHNICAL SUPPORT: means Xxxxx 0 Support as defined in Section 1.24.3
above.
1.28 TECHNICAL SUPPORT FEE(S): means the fee(S) provided by Section 3
1.29 UPDATE SUBSCRIPTION: shall mean an agreement to supply Updates to an
End-User (including initial Software licenses that carry a one-year
subscription for Updates.)
1.30 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 contains the terms and conditions for the provision of
Technical Support to Reseller for each of its Supported End-Users by
Legato's Technical Support organization to Reseller for all Legato
Software which Reseller is then authorized to resell pursuant to a
Reseller Agreement. Where Software certification or training is available,
Reseller's Technical Contacts must complete the certification or training
to qualify to support the Software. Additionally, if Reseller selected the
delivery of services from a PSAM and/or from an ESS on Page 1 of this
Agreement, then this Agreement shall also provide for delivery of such
services from said resources. Technical Support shall be provided by
Legato only to (i) support Reseller on behalf of Supported EU(s) for whom
Reseller is opening a Case with Legato and who are under current Legato
Updates Subscription; and (ii) Technical Contacts identified by Reseller
by submission of a completed Exhibit A form, as amended from time to time
by Reseller. Technical Support is provided for an unlimited number of
named Technical Contacts and 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 15 and 16 respectively.
2.2 Any Reseller requested visits to Reseller's or Supported EU's site by
Legato shall be controlled by Section 4.13.
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3 FEES, PAYMENT TERMS, INITIAL CURRENT PERCENTAGE
3.1 FEES BASE. Reseller shall purchase Technical Support for each: (i) Update
Subscription sold by it (including Software licensed on a 1-Y basis), and
(ii) renewal by it of an Update Subscription. The fee for such support
shall be the Current Percentage (as defined in Section 3.3) of the
then-current Software list price for the Software to be supported.
3.2 PAYMENT & TERMS. Reseller shall submit a Purchase Order for each purchase
of Technical Support at the time of sale of Update subscription or
renewal. It shall pay all invoices without offset within thirty (30) days
of the invoice date.
3.3 CURRENT PERCENTAGE AND REVISIONS. Initially, the Current Percentage shall
be 2% of list price of Reseller's EU's installed base Software. At the end
of each Contract Year, the Current Percentage shall be reset to the
applicable percentage by applying the Performance Criteria to Reseller's
performance during such year as follows:
If Reseller is rated as "Exceptional", 1%;
If Reseller is rated as "Compliant", 2%;
If Reseller is rated as "Non-Compliant", 7%
4 LEGATO RESPONSIBILITIES
4.1 TECHNICAL SUPPORT. Legato shall provide Technical Support to Reseller. If
Reseller chooses a PSAM and/or an ESS, Legato shall also provide such
services.
4.2 PERFORMANCE RATING.
4.2.1 Legato shall gather and analyze information from the Cases opened by
Reseller. It shall rate Reseller's performance based on the Performance
Criteria. Legato shall review the performance rating with the Reseller
every six (6) months after the Effective Date of this Agreement
including any renewal period. If Reseller is determined by Legato to be
Non-Compliant as defined in Section 1.12.3, its performance shall be
reviewed every month thereafter. During the Contract Year, if Reseller
goes from Non-Compliant to Compliant with less than six months
remaining in the Contract Year, Legato shall only review Reseller's
performance at the anniversary date. For the Reseller to be considered
Compliant once a Reseller is determined to be Non-Compliant, its
metrics must fall within at least Compliant as defined in Section
1.12.2 by the end of the Contract Year based upon measuring its
performance for the entire Contract Year.
4.2.2 REVIEW OF TECHNICAL CONTRACTS. If Reseller is Non-Compliant for any six
month period, Legato shall notify Reseller of those Reseller Technical
Contacts who are Non-Compliant. During the subsequent ninety (90) day
period, Legato and Reseller will monitor the cases referred by such
individual to Legato. In the event that such Technical Contact(s) fail
to be Compliant with respect to the Problems escalated by them during
such period, Legato may request that such individual be removed from
the list of authorized Technical Contacts by Reseller and Reseller
shall so remove such individual.
4.3 CASE HANDLING. All Cases escalated to Legato will be handled by Legato
Technical Staff trained and qualified as eligible to provide support to
Resellers.
4.4 CUSTOMER SATISFACTION. Legato will, from time to time, conduct
satisfaction surveys, through a selected third party, of Legato End-Users,
Resellers and Reseller's Supported End-Users. To the extent possible,
Legato shall provide feedback to Reseller based on the responses collected
from the Supported End-Users.
4.5 PROBLEM RESOLUTION. 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 initially and as reasonably assigned to
such Problem by Reseller and reasonably confirmed by Legato or re-assigned
as mutually agreed to by the parties. The Severity Levels are as defined
below:
4.5.1 XXXXXXXX XXXXX 0, XXXXXXXX: means that a business process and system
functionality are critically affected. A system Workaround is required
immediately;
4.5.2 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;
4.5.3 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
4.5.4 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.
4.6 CASE TRACKING. During the term of this Agreement, Legato shall receive and
track Cases reported by the Technical Contact via telephone, e-mail, or
thru the web twenty-four hours per day, 365 days per year ("24X365").
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4.7 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.
4.8 SERVICE LEVEL OBJECTIVES. Legato shall use its commercially reasonable
efforts to meet the following service level objectives and response times.
Severi First
ty Technical Contact-Status Problem
Level Response Frequency Resolution
1 Live Daily Continuous
Transfer*
2 <1 hour Daily Continuous
Business
Days
3 <4 hours Weekly As required
4 1 Business Monthly As required
Day
Severity 1 Problems will be directly transferred to a technical support engineer
with commercially reasonable efforts to expedite resolution of the Problem
24X365, whenever possible. *Legato commits to a thirty (30) minute objective for
first technical response to Severity 1 Cases during peak time or non-Business
Day situations. Reseller acknowledges these are objectives only and Legato shall
not be held liable in the event they do not meet the times specified herein.
4.9 COMMUNICATION FREQUENCY. 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.
4.10 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 (to the extent not modified or damaged by
Legato); (ii) Software that is not the current Release or the prior
unmodified Major 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.
4.11 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.
4.11.1 If the information, as specified in Section 5.1.5 [Problem
Reporting/Replication] is not received by Legato (i) via telephone for
Severity Level 1 Cases within 1 hour of reporting, or (ii) via
telephone or email or the web regarding Severity Level 2 within one (1)
day of reporting, the Case may be downgraded to the next Severity
Level.
4.12 CASE CLOSURE. A Case is closed when:
4.12.1 A solution or answer is provided;
4.12.2 A Fix is provided;
4.12.3 A Workaround as mutually agreed by the parties is provided;
4.12.4 Other vendor solution is identified (i.e. operating system, network or
hardware);
4.12.5 Product documentation bug is submitted;
4.12.6 A Problem is identified and the Fix is incorporated into a future
Release;
4.12.7 A Request for Enhancement is submitted; or
4.12.8 If information requested in Section 5.1.5 regarding any reported
Severity Level 3 Problems is not received by Legato within 5 days of
reporting.
4.13 ON-SITE SUPPORT SERVICES. At the request of Reseller, Legato may provide,
if mutually agreed to, on-site support to a Supported EU. Reseller agrees
to: (i) pay in advance to Legato the then- current daily rate for on-site
support which is $1200, plus travel and living expenses and submit to
Legato an appropriate purchase order for on site support based on Legato's
reasonable estimate of the number of days required to perform the on-site
support; and (ii) require the Supported EU to sign a copy of Legato's
limitation of liability agreement attached hereto as Exhibit C and return
a copy of the fully executed agreement to Legato's support representative.
Legato will not perform on-site support services until receipt of a signed
limitation of liability agreement and advance payment of applicable fees.
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4.14 LEVEL 1 AND 2 SUPPORT BY LEGATO. If Reseller has a staffing shortage for
providing Levels 1 or 2 Support to its customers, Legato agrees to take
these call at a fee of $550 per call. Any call taken under this Subsection
4.14 will not be counted toward compliance metrics/records in determining
Reseller's Performance Criteria. The fees will be assessed a Case through
resolution. If the Case recurs, the existing Case will be reopened by
Legato.
4.14.1 In order for Legato to provide Levels 1 or 2 Support to Reseller,
Reseller agrees to provide Legato a master purchase order for Legato to
invoice against.
5 RESELLER'S RESPONSIBILITIES
5.1 Reseller shall provide Level 1 and Level 2 Support for Supported EUs.
5.2 In order to receive Technical Support or other services from Legato,
Reseller must have a valid Reseller Agreement in place with Legato.
5.2.1 TECHNICAL CONTACTS. All Technical Contacts must either be certified or
have completed technical training. Reseller's technical staff that
perform Level 2 Support and interface with Legato Level 3 Support staff
should, at a minimum, be certified where product certification is
available. 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
the Technical Contact list at least three (3) business days prior to
any request by a new Technical Contact for any technical assistance, by
submitting a newly completed Exhibit A to Legato. There is no charge to
Reseller for changes to the Technical Contact list.
5.2.2 USE OF END-USER INFORMATION. Legato agrees not to use any End-User
information to contact Supported End-Users directly. Notwithstanding
the foregoing, Legato may use Supported End- User information to
contact Supported End-Users directly to provide Update Subscriptions
and Technical Support in the event that prior to such contact: (i)
Legato shall have notified Reseller that such Supported EU was due for
renewal of Update Subscription, and (ii) Reseller has failed to renew
Update Subscription for its Supported End-Users within 45 days after
the Updates Subscription expired; or Reseller is no longer authorized
to provide Update Subscription or Technical Support to such Supported
EU.
5.2.3 END-USERS NOT IDENTIFIED. Legato shall have no obligation to accept
calls from nor to open cases for Reseller on behalf of End-Users for
whom Reseller has not submitted a Purchase Order.
5.2.4 CASE MANAGEMENT. All Case activity will be opened and managed by
Technical Contacts.
5.2.5 PROBLEM REPORTING/REPLICATION. Reseller shall notify Legato of Problems
in accordance with the then-current Legato problem reporting
procedures. The information required to be reported is contained on a
form located at the following URL:
5.2.6 xxxx://xxx.xxxxxx.xxx/xxxxxxx/xxxxxxx_xxx_xxxxx.xxx
5.2.7 Reseller may submit the form to Legato or may refer to the questions in
the form when opening a Case with Legato. Reseller shall effectively
Replicate Problems as set forth in this Agreement.
5.2.8 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.
5.3 SOFTWARE REGISTRATION. Reseller agrees to register all Software and
Updates purchased under the terms of the Reseller Agreement on behalf of
an End-User under the End-User's name. Further, Legato shall have no
obligation to provide Technical Support for Software and/or Updates not
registered by Reseller in End-User's name.
6 ESCALATION PROCEDURE FOR SEVERITY 1 CASES
6.1 Escalation of Severity Level 1 cases shall be handled in accordance with
Legato's standard Severity Level 1 escalation process. 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 in accordance with Sections 6.2 and
6.3.
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
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determined by the parties, Reseller's and Legato's assignment of
additional technical support personnel, and establishment of escalation
specific processes, 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 (24X365). 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.
7 OTHER ERRORS
7.1 If Legato reasonably believes that a Supported EU'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.
Legato shall retain all right, title and interest in any Software and any
modifications, additions to, or derivative works of such Software.
9 TERM, RENEWAL, AND TERMINATION
9.1 TERM. This Agreement shall have an initial term as specified in Section 3
of Page 1, unless terminated earlier as provided in this Section 9. At the
end of the Contract Year and any renewal year, this Agreement shall
automatically extend for a forty-five day grace period. If during such
grace period the parties execute a renewal agreement, this Agreement shall
extend for an additional one year to the following anniversary date, plus
an additional grace period. Otherwise, the Agreement shall terminate (i)
upon notice by either party that they do not wish to renew the Agreement,
or (ii) upon expiration of the grace period without due execution of such
Renewal Agreement. If, at the end of the Contract Year, Reseller is rated
to be Non-Compliant, Legato shall have the option to not renew this
Agreement.
9.2 RIGHT TO TERMINATE. Legato shall have the right to terminate this
Agreement if:
9.2.1 Legato is asked by Reseller to provide Technical Support under the
auspices of a specified Supported End-User and, in fact, it is for
another End-User. Legato considers such a request a substantial breach
of this Agreement; or
9.2.2 Reseller fails to pay pursuant to Section 3.3.
9.3 TERMINATION FOR CAUSE. Either party has the right to terminate this
Agreement if the other party breaches or is in default of any obligation
hereunder (including the failure to make any payment when due) which
default is incapable of cure or which, being capable of cure, has not been
cured within thirty (30) days after receipt of written notice from the
non-defaulting party or within such additional cure period as the
non-defaulting party may authorize in writing.
9.4 TERMINATION FOR BANKRUPTCY. Legato may terminate this Agreement upon the
filing by or against Reseller of any action under any federal, state or
other applicable bankruptcy or insolvency law.
9.5 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
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longer provides the specific services previously offered.
9.6 TERMINATION OF RESELLER AGREEMENT. Legato shall have the right to
terminate this Agreement if Reseller's Reseller Agreement is terminated or
is not renewed by Legato for whatever reason.
9.7 EFFECT OF TERMINATION. Following termination or expiration of this
Agreement (except for termination by Legato for breach by Reseller): (i)
Legato shall provide Technical Support to Reseller for those Supported
End-Users whose anniversary renewal date has not yet occurred, and shall
continue to do so until the renewal date; and (ii) Reseller will meet all
obligations set forth in this Agreement with respect to such Supported
End-Users.
9.9 SURVIVAL OF TERMS. The following terms shall survive any expiration or
termination of this Agreement: Sections: 1, Definitions; 3, Fees; 0,
Xxxxxxxxx; 0 Xxxx, Xxxxxxx, 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 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, autochangers, 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 Reseller 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 or 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 Technical Support for the Contract Year in which such liability
first arose.
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 without
regard to the limits imposed by to Section 11.1 above.
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 CONFIDENTIAL INFORMATION
14.1 PROTECTION OF CONFIDENTIAL INFORMATION. Each party will protect the
other's Confidential Information from unauthorized dissemination and use
the same degree of care that such party uses to protect its own like
information, but in no event less than a reasonable degree of care.
Neither party will disclose to third parties the other's Confidential
Information without the prior written consent of the other party. Neither
party will use the other's Confidential Information for purposes other
than those necessary to directly further the purposes of this Agreement.
Notwithstanding the foregoing, either party may use or disclose
Confidential Information to the extent such party is legally compelled to
disclose such Confidential Information provided, however, that prior to
any such compelled disclosure, the disclosing party will notify the
non-disclosing party and will cooperate fully with the non-disclosing
party in protecting against any such
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disclosure and/or obtaining a protective order narrowing the scope of such
disclosure and/or use of the Confidential Information. The parties agree
that any breach of this Section would cause irreparable harm to the
disclosing party for which monetary damages would not be adequate and
therefore, the parties agree that in the event of a breach of this
Section, the disclosing party shall be entitled to equitable relief in
addition to any remedies it may have hereunder or at law.
14.2 NOTIFICATION OF EMPLOYEES. Each party agrees to take appropriate action by
instruction, agreement or otherwise with its employees, agents and
contractors allowed access to the Confidential Information to satisfy its
obligations under this Section.
15 PSAM OPTION. If Reseller chooses the PSAM option on Page 1 of this
Agreement, Legato shall provide the following services.
15.1 PREMIUM SUPPORT ACCOUNT MANAGER ("PSAM"). During the term of this
Agreement Legato shall assign a PSAM to Reseller, to provide account
management services during normal business hours. The services provided by
the PSAM include:
15.1.1 monthly conference calls to gain familiarity with Reseller's
environment, build Reseller's account profile, review of Case activity;
15.1.2 proactive notification of patch availability, and Software alerts;
15.1.3 single point of contact for situation and Escalation management; and
15.1.4 liaison for Reseller's feedback and suggestions regarding
Software, including RFEs, to Legato's product management group.
15.2 ALTERNATE PSAM. Legato will provide an alternate PSAM contact point when
PSAM is unavailable due to training, vacation or other attrition.
16 ENTERPRISE SUPPORT SPECIALIST ("ESS") OPTION
16.1 If Reseller chooses the ESS option on Page 1 of this Agreement, Legato
shall provide the following services within normal business hours:
16.1.1 A designated Senior Legato Support Engineer from the ESS Team who is
most experienced in the Legato Software and customer configurations,
for the 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.
16.2 The ESS representative will:
16.2.1 Monitor case progression, ensuring efficient and accurate resolution.
16.2.2 Assist in Problem identification and resolution, expediting Legato
Software issues within Legato's Product Specialist and Current Product
Engineering groups.
16.2.3 Manage escalation through Legato Technical Support Management team.
17 ENFORCEMENT OF AGREEMENT
17.1 GOVERNING LAW. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts, without regard to the principles of
conflict of laws or the United Nations Convention on Contracts for the
International Sale of Goods.
17.2 JURISDICTION. The U.S. federal and state courts of the Commonwealth of
Massachusetts 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.
17.3 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.
17.4 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.
17.5 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.
17.6 SEVERABILITY. If for any reason a court of competent jurisdiction finds
any provision of this Agreement, or
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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.
17.7 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.
18 ENTIRE AGREEMENT
18.1 RESELLER. Except for the Reseller Agreement, 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 the AUTHORIZED TECHNICAL SUPPORT PROVIDER AGREEMENT BETWEEN THE
PARTIES EFFECTIVE 1 SEPTEMBER 2002. 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 Agreement and any Addendum, Exhibit, Attachment or
Schedule, the terms of this Agreement shall prevail.
18.2 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, on delivery; (ii) mailed by registered air mail
postage prepaid; or (iii) sent by facsimile followed by a hard-copy
confirmation on transmission by facsimile, 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 SOFTWARE DIVISION OF EMC CORP.
0000 X. Xx Xxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
Attn: office of General Counsel
Telephone: 000 000 0000
Fax: 000 000 0000
If to Reseller:
MTI TECHNOLOGY CORPORATION
00000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
XXX
Attention: Xxxx Xxxxxxxxx, CFO
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Email: XXxxxxxxxx@xxx.xxx
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EXHIBIT A
RESELLER CONTACT INFORMATION FORM
RESELLER NAME:
Address
City, State, Zip
ADMINISTRATIVE CONTACT: LEGATO CONTACT CODE (LEGATO USE ONLY)
Phone Number FAX #
E-mail Address Pager/Cell #
TECHNICAL CONTACT #1: Legato Contact Code (Legato use only):
Phone Number FAX #
E-mail Address Pager/Cell #
TECHNICAL CONTACT #2: Legato Contact Code (Legato use only):
Phone Number FAX #
E-mail Address Pager/Cell #
TECHNICAL CONTACT #3: Legato Contact Code (Legato use only):
Phone Number FAX#
E-mail Xxxxxxx Xxxxx/Xxxx #
XXXXXXXXX XXXXXXX #0: Legato Contact Code (Legato use only):
Phone Number FAX # Phone Number
E-mail Address Pager/Cell # E-mail Address
TECHNICAL CONTACT #5: Legato Contact Code (Legato use only):
Phone Number FAX # Phone Number
E-mail Address Pager/Cell # E-mail Address
TECHNICAL CONTACT #6: LEGATO CONTACT CODE (LEGATO USE ONLY)
Phone Number FAX #
E-mail Address Pager/Cell #
TECHNICAL CONTACT #7: Legato Contact Code (Legato use only):
Phone Number FAX #
E-mail Address Pager/Cell #
RESELLER'S NAME: MTI TECHNOLOGY CORPORATION
_________________________________________ XXXX XXXXXXXXX
(AUTHORIZED SIGNATURE) ---------------
(PRINTED NAME)
CFO 9-3-03
------- ------
(TITLE) (DATE)
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LEGATO AGREEMENT NO.: 271-ATSP-4453
Send form to: Legato Software, a division of XXX Xxxxxxxxxxx, Attn: Support
Sales and Renewals, 0000 Xxxxxx Xxxxx, Xxxx Xxxx, XX 00000 U.S.A., or send via
facsimile to: (000) 000-0000 (US Resellers))
If there is a change pertaining to any of the Technical Contacts on this
Schedule 1, Reseller is required to submit an amended Schedule 1 to Legato.
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EXHIBIT B
The following sets forth examples of the steps that Reseller is required to take
in performing Xxxxx 0 xxx Xxxxx 0 Xxxxxxx.
XXXXXX 1 & 2 SUPPORT REQUIRES RESELLER TO:
1. Provide technical assistance (help desk) to Supported End-Users.
2. Provide known Fixes and Workarounds for Problems to Supported EUs.
3. Analyze log files and all other relevant information gathered in Level 1
troubleshooting.
4. Research Legato's eKnowledgeBase tool to provide answers to known issues.
5. Research Legato's PartnerNet facility to search for known Software defects
and eliminating these as possible issues.
6. Use commercially reasonable efforts to eliminate the possibility of the
Problem being associated to an operating system or other vendor software
issue, either software or hardware (this includes where necessary opening
support cases with relevant vendors).
7. Use commercially reasonable efforts to eliminate possibility of the
Problem being associated to network related issues.
8. Use commercially reasonable efforts to Replicate the Problem in a
non-production environment. If the Replication attempt is unsuccessful
then a complete step by step procedure must be provided outlining the
Replication attempt including all versions of software involved including
hostnames of machines.
9. Prepare all information for Level 3 Support. This includes but is not
limited to:
9.1 Provision of all relevant log files;
9.2 Detailed analysis with date and time stamps of relevant error
messages; and
9.3 Detailed information showing what search information has already
been used in Legato's eKnowledgeBase tool, including Problem description,
Software name and version, relevant operating system or platform information,
and relevant error messages.
10. Provide all details showing what has been done to eliminate the operating
system, network, hardware and software as being a possible problem source
(to include any related open case information with other vendors).
11. Provide details related to Replication procedure and log file information
from the Replication environment.
12. Provide details on how Level 3 Support can use remote support tools to
access the Replication environment.
13. Provide hourly contact for Severity 1 Cases, daily contact for Severity 2
Cases, weekly contact for Severity 3 Cases and monthly contact for
Severity 4 Cases during the life of the Case through Case Closure; and
Escalation of 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.
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EXHIBIT C
LIMITATION OF LIABILITY IN CONSIDERATION OF ON SITE SUPPORT SERVICES
EXAMPLE
This Limitation of Liability is executed by ____________________________________
_________________________ (insert full corporate name of Reseller's End User) in
consideration of the performance of On Site Technical Support Services by Legato
Software, a division of XXX Xxxxxxxxxxx ("Legato") on or about _________________
_____________________________________ (insert date or period) at our premises at
_______________________________________________ [insert address of Reseller's
End-User].
We agree that Legato will not be liable under any legal or equitable theory,
whether based upon contract, tort or any other basis, arising out of or relating
to On Site Technical Support Services for: (i) negligence, except gross
negligence or willful misconduct; (ii) any indirect, special, incidental, or
consequential damages, however caused; (iii) damages for lost profits or lost
data; or (iii) cost of replacement of data or the procurement of substitute
software or services. Legato's entire liability arising from or relating to the
provision of On-Site Technical Support Services is limited to the amount of the
Legato fees billed to Legato's Reseller for such services.
This limitation is subject to the condition that during the time that Legato
provides On-Site Technical Support services, Legato shall maintain workers
compensation insurance in the amount required by statute, comprehensive general
liability insurance with coverage of at least one million dollars ($1,000,000)
and professional errors and omissions insurance for bodily injury, property
damage or other losses with coverage of at least one million dollars
($1,000,000), in connection with the provision of Legato's On Site Technical
Support Services
IN WITNESS WHEREOF, this Limitation of Liability has been duly executed
on _________________________________________________________ (insert date).
_____________________________________
(Insert Company Name)
By: _________________________________
(Signature)
Authorized Representative
Name:________________________________
(Print Name)
Title:_______________________________
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