EXHIBIT 10.78
AGREEMENT NO. 500155
FALCONSTOR SOFTWARE, INC.
SOLUTION PROVIDER AGREEMENT
THIS SOLUTION PROVIDER AGREEMENT ("Agreement") is made and entered into on May
7, 2003 (the "Effective Date") between FALCONSTOR SOFTWARE, INC. ("FalconStor"),
a Delaware Corporation with its principal offices at 125 Baylis Rd., Suite 140,
Melville, NY 11747 USA, and MTI Technology Corporation ("Solution Provider"), a
Delaware corporation with its principal offices at 14661 Franklin Avenue,
Tustin, CA 92780.
The parties agree as follows:
1. SCOPE OF AGREEMENT
This Agreement provides for the marketing and distribution by Solution Provider
of the FalconStor software products ("Products" as defined below) and identified
on one or more Exhibits attached to this Agreement.
2. DEFINITIONS
"Demonstration Software" means the commercially available Products
listed in Exhibit I that are used internally by Solution Provider.
Demonstration Software includes any Maintenance Releases and New
Versions thereof provided by FalconStor to Solution Provider under this
Agreement.
"Documentation" means technical documents and manuals relating to the
end use of the Products. "End User" means a third party licensed to use
the Products internally and not for redistribution.
"End User Agreement" means FalconStor's then standard shrink-wrapped
license agreement pursuant to which an End User may use a Product
distributed by Solution Provider pursuant to this Agreement.
"First Level Support" means a level of technical support that shall be
substantially similar to FalconStor's first level support services as
described in FalconStor's then current Client Support Handbook.
"Intellectual Property" means all property, whether in the form of
designs, formulas, procedures, methods, apparatus, ideas, inventions,
creations, improvements, works of authorship, or other similar
material, subject to protection under patent, copyright or trade secret
law, or any other statutory provision or common law doctrine.
"Maintenance Releases" means product temporary fixes, error
corrections, work-arounds and corrections made available by FalconStor
to supported End Users of the Products, but does not include new
products available from FalconStor for an additional fee.
"New Versions" means a new version of the Products containing new
features or functions as well as error corrections, but does not
include new products available from FalconStor for an additional fee.
"Operating Environments" means the hardware platform and operating
system combinations that correspond to specific versions of the
Products generally available from FalconStor.
"Products" means all or any portion of the commercially available
software products specified in Exhibit I together with related
Documentation and all corrections, Maintenance Releases and New
Versions thereof.
"Second Level Support" means technical support for the Products
provided by FalconStor to Solution Provider as set forth in Section
10(b) of this Agreement.
"Term" means the period set forth in Section 12 of this Agreement.
"Territory" means the geographic region described in the Exhibit VI to
this Agreement.
"Upgrade" means a revision of the Product that includes enhancements
that increase performance, increase functionality or add features, for
which FalconStor charges a license fee.
3. APPOINTMENT AND GRANT OF LICENSES
a. APPOINTMENT. During the Term and subject to the terms and conditions of
this Agreement, FalconStor hereby grants to Solution Provider, and
Solution Provider hereby accepts, the non-exclusive, non-transferable
right and license to distribute the Products to End Users in the
Territory. The Products shall be distributed by Solution Provider under
FalconStor's trademarks. FalconStor expressly reserves the right from
time to time, in its sole discretion and without liability to Solution
Provider, to: (i) appoint other Solution Providers, distributors or
other third parties to solicit and make sales directly, both nationally
and internationally, including, without limitation, within the
Territory; (ii) modify the Territory upon giving Solution Provider
thirty (30) days prior written notice of such modification, and; (iii)
license, distribute or sell any Products directly to End Users or in
any other channel of distribution within or without the Territory.
FalconStor reserves the right to review and update the Products subject
to this Agreement and the supported Operating Environments at any time
upon 30 days notice to Solution Provider.
b. DEMONSTRATION LICENSES. Solution Provider will be granted Demonstration
Software to use in a lab or test environment and for demonstration
purposes for Solution Provider's clients. Solution Provider must
complete FalconStor's then standard registration process for each copy
of the Demonstration Software. Demonstration Software may not be used
by Solution Provider for production purposes or transferred or
sublicensed to any third party.
c. INTERNAL USE. Solution Provider will be granted a license to use
FalconStor's products to run in a production environment at a
discounted rate. As a condition to such use, Solution Provider must
follow FalconStor's current registration process, which will enable
technical support.
4. LICENSE AND DISTRIBUTION LIMITATIONS. The licenses and the distribution
rights granted in Section 3 are subject to the following limitations:
a. Solution Provider shall require each End User who has licensed the
Products to acknowledge and agree to FalconStor's standard End User
license agreement as provided by FalconStor to Solution Provider from
time to time. FalconStor must approve any modifications to the standard
End User license agreement.
b. Solution Provider shall not (nor shall it permit any third party to)
directly or indirectly: (i) copy or manufacture the Products or any
portion thereof, (ii) reverse engineer, decompile, disassemble or
otherwise attempt to derive the source code of the Products; (iii)
encumber, time-share, rent or
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lease or assign the rights granted by this Agreement; or (iv) adapt,
translate, port or otherwise modify, except as permitted under the
terms of this Agreement, any Products.
c. Solution Provider shall respect and not remove, obliterate, or cancel
from view any copyright, trademark or confidentiality notice or legend
appearing on the Products, its media, the Documentation, or output
generated by such Products, or any portion thereof.
d. Except as agreed by FalconStor in writing, Solution Provider shall not
have any right to establish or to appoint any sub-Solution Providers or
sub-dealers of the Products, nor shall Solution Provider allow any
third party to sublicense, copy, assign, transfer or distribute the
Products.
e. Solution Provider shall be solely responsible for compliance with any
laws, rules, or regulations governing the export, re-export, import or
use of the Products, including, without limitation, the procurement and
renewal of all export, re-export or import licenses or approvals
required under U.S. or any foreign law for the export, re-export,
import or use of the Products or any portion thereof, and shall pay all
costs and other expenses in connection with such procurement and
renewal. Solution Provider acknowledges that restrictions imposed by
U.S. government agencies on the export of software are subject to
change without notice and that Solution Provider shall be solely
responsible for compliance with all such export restrictions. Solution
Provider agrees to indemnify FalconStor and hold FalconStor harmless
for any violation of any statute, rule or regulation regarding the
export of the Products.
f. The Products are provided with RESTRICTED RIGHTS. Use, duplication, or
disclosure by the Government is subject to restrictions set forth in
subparagraph (c)(l)(ii) of the Rights in Technical Data and Computer
Software clause at DFARS 252.227-7013, and in subparagraphs (a) through
(d) of the Commercial Computer-Restricted Rights clause at FAR
52.227-19, and in similar clauses in the NASA FAR Supplement, when
applicable, and the successor statutes thereto. Solution Provider shall
take all necessary steps to assure that FalconStor obtains full
protection of its intellectual property rights under these provisions.
Solution Provider shall affix (if not already affixed) to any media
containing all or any portion of the Product provided to the Government
a restricted rights legend substantially similar to the following:
"This Program is provided with Restricted Rights. Use, duplication or
disclosure by the Government is subject to the restrictions set forth
in DFARs 252.227-7013 (c) (1) (ii) and 48 CFR 52.227-19 (c) (1) and (2)
or applicable successor provisions."
5. COMPLIANCE WITH LAWS
a. Solution Provider will, at its expense, obtain and maintain all
governmental authorizations, registrations and filings that may be
required under the laws of the Territory to execute or to perform this
Agreement. Solution Provider will consult FalconStor and obtain
FalconStor's prior written approval before registering this Agreement
with any government authorities. Solution Provider will otherwise
comply with all laws, regulations and other legal requirements that
apply to this Agreement, including tax and foreign exchange legislation
and will promptly notify FalconStor of any change in legislation that
may affect Solution Provider's performance of this Agreement.
b. Solution Provider will not use any payment or other benefit derived
from FalconStor to offer, promise or pay any money, gift or any other
thing of value to any person for the purpose of influencing official
actions or decisions affecting this Agreement, while knowing or having
reason to know that any portion of this money, gift or thing will,
directly or indirectly, be given, offered or promised to an employee,
officer or other person acting in an official capacity for any
government or agency or any political party, party official or
candidate for political office.
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6. RESERVATION OF RIGHTS
All rights not expressly granted to Solution Provider under this
Agreement are reserved to FalconStor.
7. MARKETING
Solution Provider shall use reasonable efforts to actively promote the
Products, and shall maintain the formal name of the Products (with
appropriate trademark designations) in all advertising and other
printed materials relating to the Products. All marketing efforts shall
conform to FalconStor's Graphics/Logos Design Standards, available at
www.falconstor.com/logousage.asp. FalconStor reserves the right to
require Solution Provider to furnish to FalconStor in advance for
review and approval any and all promotional, advertising and other
materials which refer to the Products or which use or display any
trademark, service mark, logo or trade name of FalconStor. FalconStor
also reserves the right to require Solution Provider to discontinue use
of any promotional, advertising or other materials referring to
FalconStor or the Products.
8. ORDERS
a. Solution Provider shall fax purchase orders to (632) 501-7633 (each an
"Order").
(i) FalconStor reserves the right to change the fax number for
Orders on five (5) days written notice to Solution Provider.
(ii) Solution Provider acknowledges that it is FalconStor's intent
to require all Orders to be placed online in the future and agrees to
convert to an online ordering process at FalconStor's request.
b. Each Order shall be subject to acceptance by FalconStor. Solution
Provider shall provide FalconStor with such information as FalconStor
may require about how a prospective End User proposes to use the
Products, including, but not limited to, the number of CPU(s) on an
Application Server on which the Products will be operated by End User.
FalconStor reserves the right to require Solution Provider to register
and to provide additional information regarding each End User with its
Orders. Solution Provider understands and agrees that FalconStor may
delay or withhold issuance of authorization keys for the Products in
the event Solution Provider or its End User fails to provide the
necessary information to issue the authorization key. No provisions in
Solution Provider's purchase orders, license agreements or in any other
business forms employed by Solution Provider shall add to or supersede
the terms and conditions of this Agreement, which shall exclusively
govern the relationship of the parties.
c. All Orders for the Products (or any Upgrade) shall be pursuant to a
Solution Provider registration of Product. In addition to any other
right or remedy, FalconStor may, at its option, refuse any Order placed
by Solution Provider, or any accepted order or delay shipment thereof,
if Solution Provider is delinquent in any payments to FalconStor or if
Solution Provider is otherwise in breach of this Agreement.
d. Upon receipt of Orders from Solution Provider that comply with all
requirements of this Agreement, FalconStor will, unless Solution
Provider is delinquent in its payments or in breach of its agreements
with FalconStor, make reasonable efforts to fill all orders for the
Products and issue associated authorization keys electronically to
Solution Provider or its End Users. FalconStor shall
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not be liable to Solution Provider, or to any other person, for
FalconStor's failure to fill any Orders, or for any delay in delivery
or in filling any Orders for any reason whatsoever.
e. Unless otherwise agreed, all Products shall be shipped by FalconStor
FOB the point of shipment to Solution Provider at Solution Provider's
address set forth above or such other address in the Territory as
Solution Provider may notify FalconStor as its delivery address WHICH
MAY INCLUDE THE END USER ADDRESS. FalconStor will select the
appropriate method of shipment and will obtain all licenses required to
export the Products from the country of origin. Solution Provider will
(i) obtain all licenses required to import the Products; (ii) clear the
Products through customs promptly upon their arrival in the Territory;
and (iii) pay all shipping costs, customs duties and other charges
assessed on such imports into the Territory, if applicable. Solution
Provider shall be responsible for shipment to its customers.
f. Solution Provider shall complete and maintain the information requested
on Exhibit V regarding contacts for marketing and pricing. No Product
will be shipped unless Exhibit V is filled out. Notices from FalconStor
regarding marketing and pricing will be deemed received by Solution
Provider if addressed to the individuals identified on Exhibit V at the
e-mail addresses listed thereon. It is Solution Provider's
responsibility to update Exhibit V if it wishes to change a contact or
an address.
9. REPRESENTATIONS BY SOLUTION PROVIDER
Solution Provider shall not make (i) any representation or warranty
whatsoever on behalf of FalconStor; (ii) any representation or warranty
concerning the quality, performance or other characteristics of the
Products other than those which are consistent in all respects with,
and do not expand the scope of, the warranties set forth in this
Agreement; or (iii) any commitment to modify any of the Products.
10. CUSTOMER SUPPORT
a. SOLUTION PROVIDER FIRST LEVEL SUPPORT. If Solution Provider is
authorized by FalconStor in writing to provide First Level Support for
all or any of the Products, Solution Provider shall ensure that___2_
number of employees complete the required minimum training for each of
the Products and Operating Environments as necessary to be certified by
FalconStor as an authorized provider of First Level Support services.
If Solution Provider provides First Level Support, it shall provide
First Level Support substantially similar to that described in the
FalconStor Client Support Handbook, attached hereto as Exhibit II.
FalconStor may provide First Level Support and other support services
directly to End Users, but shall not have any obligation to do so
unless the End User has registered for the product and has entered into
a maintenance agreement directly with Solution Provider or FalconStor.
b. SECOND LEVEL SUPPORT. FalconStor shall provide Solution Provider with
Second Level Support (in accordance with FalconStor's Client Support
Handbook) from FalconStor's North American support centers, or, at
FalconStor's sole discretion, from other FalconStor worldwide support
centers, for Products properly licensed to Solution Provider's End
Users who have also purchased technical support for the Products, and
provided that Solution Provider follows the following procedures:
(i) Solution Provider shall dedicate _2_ technical staff members
to the Product. These technical staff members shall be
qualified and trained in the Products and shall review all
reported errors to determine if the error occurs in the
Products or in other hardware or
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software products not supplied by FalconStor. If Solution
Provider determines that the error occurs in the Products,
Solution Provider may then submit the error to FalconStor.
(ii) Solution Provider shall submit detailed descriptions of any
reported errors. If FalconStor is not able to replicate the
error, Solution Provider shall provide any additional
information required by FalconStor (which may include a sample
program enabling FalconStor to replicate the error). Solution
Provider will also make its personnel available to assist in
problem identification and resolution.
c. NON-CONTRACTED SECOND LEVEL SUPPORT. FalconStor shall make available
Second Level support to the Solution Provider on an "Individual Premium
Incident" basis in accordance with its then published price list for
support calls placed outside the End User contracted support hours.
Solution Provider shall not be entitled to a discount on such support.
d. END USER HANDBOOK. FalconStor's Client Support Handbook for End Users
is attached hereto as Exhibit III. This handbook describes how End
Users may receive support for the Products from FalconStor.
11. LICENSE AND UPGRADE FEES
The price charged by FalconStor to Solution Provider for licenses of
the Products acquired by Solution Provider from FalconStor during the
term of this Agreement shall be the then prevailing suggested list
price for the version of the Product (or Upgrade) ordered by Solution
Provider, less the discount then available to Solution Provider under
Exhibit I. Alternatively, Solution Provider may elect to acquire
Product licenses from a distributor of the Products that is authorized
by FalconStor to distribute the Products to Solution Providers
("Authorized Distributor"). If Solution Provider elects to purchase
Product licenses from an Authorized Distributor, the prices, payment
and shipment terms and other commercial terms shall be agreed between
Solution Provider and the Authorized Distributor.
12. TERM
The Initial Term of this Agreement shall commence on the Effective Date
and shall continue for a period of twelve (12) months from such date,
unless sooner terminated as hereinafter provided. After the Initial
Term, this Agreement may be renewed on an annual basis if mutually
agreed by both parties in writing prior to the end of the Term. "Term"
shall mean the Initial Term together with any agreed renewal periods.
13. PAYMENTS
a. Terms of payment on all invoices from FalconStor shall be net thirty
(45) days. All payments shall be made in US Dollars.
b. All prices listed in Exhibit I are exclusive of all taxes, including
customs duties, import taxes and sales, use or value added taxes where
applicable. Upon presentation of invoices by FalconStor, Solution
Provider shall pay any and all applicable tariffs, duties or taxes
(other than franchise and income taxes for which FalconStor is
responsible) imposed or levied by any government or agency, including,
without limitation, federal, state and local sales, use, value added
and personal property taxes. Any claimed exemption from such tariffs,
duties or taxes must be supported by a tax exemption certificate and
other proper documentary evidence delivered to FalconStor.
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c. If Solution Provider is legally required to withhold any income or
remittance tax from amounts payable to FalconStor, then (i) Solution
Provider will promptly notify FalconStor, (ii) the amount payable will
be automatically increased to the full extent required to offset such
tax, so that the amount remitted to FalconStor net of all taxes, equals
the amount stated in the invoice, and (iii) Solution Provider will
provide FalconStor with the official receipt of payment of such taxes
to the appropriate taxing authority. Solution Provider will be
responsible for payment of any withholding taxes and shall indemnify
and hold FalconStor harmless from and against any claim for unpaid
withholding taxes, interest and penalties, which may be claimed by the
applicable tax authorities relating to payment of such taxes.
d. Solution Provider shall attach all applicable resale certificate(s) to
this Agreement. If resale certificate(s) is not attached, FalconStor
will be required to charge sales tax on orders.
e. Solution Provider shall submit payment reports including Point of Sales
("POS") information or reports within twenty (20) days from the last
day of each quarter. The POS report shall be transmitted electronically
and shall identify, for the relevant quarter, all sales by country,
state or other local subdivision, customer, dollar amount and SKU. The
POS report shall separately identify any maintenance or support sold
for the Products.
14. AUDIT RIGHTS
FalconStor shall have the right, during the Term and for two (2) years
thereafter, in each case with advance notice and during regular
business hours, to request that audits of Solution Provider be
conducted by an independent, third party auditor selected by
FalconStor. Such audit shall be of the records of Solution Provider
with respect to the Products, for the purpose of verifying the licenses
used by Solution Provider or its End Users and the maintenance and
support services provided by Solution Provider. Such audits shall be
conducted in such a way as to minimize interference with Solution
Provider's normal business operations, and be no more frequently than
two (2) times per year. If any such audit should disclose any
underpayment by Solution Provider, Solution Provider shall promptly pay
FalconStor the amount of the underpayment, together with interest at a
rate of one-and-one-half percent (1-1/2%) per month or the highest rate
allowed by law, whichever is lower, from the date on which such amount
became due to FalconStor from Solution Provider. If the underpayment
amount is more than five percent (5%) of the amount due for the
relevant period, Solution Provider shall pay FalconStor's costs and
expenses for such audit.
15. PROPRIETARY INFORMATION AND NON-DISCLOSURE
a. FalconStor (or its licensors) retains ownership of all Intellectual
Property rights and know-how in and relating to the Products. The
Products, the Documentation and other proprietary information provided
by FalconStor to Solution Provider hereunder contain and constitute
trade secrets, information and data proprietary to and copyrighted by
FalconStor. Neither Solution Provider nor its employees shall use or
allow such information or data to be disclosed to third parties or
duplicated except as expressly allowed in this Agreement. Any
customizations, enhancements, improvements, translations, derivative
works or other modifications of the Products (collectively,
"Modifications") made by Solution Provider shall be deemed to be works
made for hire and shall belong to FalconStor and FalconStor shall have
all right, title and intellectual property interest to such work. To
the extent that copyright title to any Modifications may not, by
operation of law, vest in FalconStor, or such Modifications may not be
considered works made for hire, all right, title and interest therein
are hereby and with no further action of Solution Provider required,
irrevocably assigned to FalconStor. The copyright to all such
Modifications shall belong exclusively to FalconStor, with FalconStor
having the right to obtain and to hold in its own name or the name of
its nominee all copyrights and any extensions and renewals thereof.
Solution Provider agrees to
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give FalconStor and any person designated by FalconStor any reasonable
assistance, at FalconStor's expense, to perfect the copyright defined
in this paragraph and to assign such rights to any affiliate of
FalconStor, including without limitation by executing and delivering
all such instruments and documents as FalconStor may deem necessary or
desirable in connection therewith. Solution Provider shall ensure that
it has sufficient contractual agreements with its employees and
independent contractors to ensure that the copyright to the
Modifications may be assigned to FalconStor. FalconStor shall have no
obligation to support any customizations, extensions or modifications
made to the Products by any third party unless otherwise agreed by
FalconStor in writing.
b. Solution Provider acknowledges that Solution Provider's failure to
comply with the provisions of this Section shall result in irreparable
harm to FalconStor for which a remedy at law would be inadequate, and
therefore, in the event of the breach, or threatened breach by Solution
Provider of its obligations under this Section, FalconStor shall be
entitled to equitable relief in the form of specific performance and/or
an injunction, without the posting of any bond, for any such actual or
threatened breach, in addition to the exercise of any other remedies at
law or in equity.
c. During the term of this Agreement, Solution Provider is authorized by
FalconStor to use the trademarks, trade names, logos, and designations
used by FalconStor for Products only in connection with Solution
Provider's advertisement and promotion of Products. All use of
FalconStor's trademarks, trade names, logos and designations shall be
in accordance with FalconStor's Graphics/Logos Design Standards,
available at www.falconstor.com/logousage.asp. FalconStor reserves the
right to require Solution Provider to submit to FalconStor for its
prior approval any and all advertising and sales literature of Solution
Provider which refer to FalconStor or include any of FalconStor's
marks. If FalconStor has not notified Solution Provider of its
disapproval of such materials within five (5) business days of receipt,
the materials shall be deemed approved. Solution Provider shall make
all modifications to the materials deemed necessary by FalconStor to
protect the goodwill of FalconStor's marks. Solution Provider
acknowledges and agrees that FalconStor is the owner of its marks and
that all goodwill arising out of Solution Provider's use of the
FalconStor's marks pursuant to this Agreement shall inure to
FalconStor. Solution Provider shall not at any time or in any way
indicate ownership of or any right in the FalconStor's marks. Solution
Provider's right to use the FalconStor's marks shall immediately cease
upon termination or expiration of this Agreement except as may be
agreed upon by the parties regarding Solution Provider's disposal of
inventory of Products at the time of termination or expiration.
Solution Provider shall at all times conduct business only under its
own name and may not use FalconStor's marks as part of its business
name. Solution Provider shall not register or apply for registration of
any of FalconStor's marks or any name or mark that incorporates any of
FalconStor's marks anywhere in the world. FalconStor reserves the right
to require Solution Provider to discontinue the use of any advertising
or marketing materials relating to FalconStor, the trademarks, names or
logos, or the Products.
16. LIMITED WARRANTY
a. Both parties represent and warrant that they have the right to enter
into this Agreement. FalconStor warrants that the then current,
unmodified version of the Products will substantially perform the
functions or generally conform to the then current version of their
published Documentation for a period of ninety (90) days from delivery
to the End User. If it is determined that the Products do not perform
as warranted, FalconStor's only responsibility will be to use
reasonable efforts, consistent with industry standards, to cure the
defect. FalconStor does not represent that the Products are error free
or will satisfy all of Solution Provider's or its End User's
requirements. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES. TO THE
MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ALL OTHER WARRANTIES,
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CONDITIONS AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, VERBAL,
STATUTORY OR OTHERWISE, AND WHETHER ARISING UNDER THIS AGREEMENT OR
OTHERWISE ARE HEREBY EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. FALCONSTOR SHALL NOT BE BOUND BY OR LIABLE FOR ANY
REPRESENTATIONS OR WARRANTIES, WHETHER WRITTEN OR ORAL, WITH RESPECT TO
THE PRODUCTS MADE BY SOLUTION PROVIDER OR ITS AGENTS, EMPLOYEES OR
REPRESENTATIVES.
b. Except for the Indemnification set forth below in Section 17(a),
FalconStor's maximum liability for damages under this Agreement
(regardless of the form of action, whether in contract or tort) shall
not exceed the amount paid by Solution Provider to FalconStor for the
Products or services as to which the claim relates.
c. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS OR REVENUE OR DATA OR
INFORMATION LOSS, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, IN THE
PERFORMANCE OF THIS AGREEMENT, OR RELATED TO THE PRODUCTS, MAINTENANCE
RELEASES, OR NEW VERSIONS, WHETHER IN AN ACTION IN CONTRACT OR TORT,
EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, EXCEPT TO THE EXTENT THAT DAMAGES FOR
BREACH OF CONFIDENTIALITY OR PATENT, COPYRIGHT OR TRADE SECRET
INFRINGEMENT ARE DEEMED TO BE CONSEQUENTIAL IN NATURE. IN ANY EVENT,
THE LIABILITY OF FALCONSTOR TO SOLUTION PROVIDER FOR ANY REASON AND
UPON ANY CAUSE OF ACTION OR CLAIM SHALL BE LIMITED TO THE LICENSE FEES
PAID TO FALCONSTOR BY SOLUTION PROVIDER UNDER THIS AGREEMENT. THIS
LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE,
INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY,
NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, CLAIMS FOR FAILURE TO
EXERCISE DUE CARE IN THE PERFORMANCE OF SERVICES HEREUNDER AND OTHER
TORTS. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES, EXCLUSIONS
AND LIMITATIONS HEREIN ALLOCATE THE RISKS OF PRODUCT AND SERVICE
NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM
COMMERCIAL CODE AND/OR OTHER APPLICABLE LAWS. THE LICENSE FEES HEREIN
REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE
EXCLUSION OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY SET
FORTH IN THIS AGREEMENT. THIS EXCLUSION ALSO INCLUDES ANY LIABILITY
THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST SOLUTION PROVIDER. ANY
ACTION BY A PARTY MUST BE BROUGHT WITHIN THE EARLIER OF TWO (2) YEARS
AFTER SUCH PARTY OBTAINS KNOWLEDGE OF THE FACTS LEADING TO SUCH ACTION
AND THE APPLICABLE STATUTE OF LIMITATIONS.
17. INDEMNIFICATION
a. FalconStor at its expense, shall defend any action brought against
Solution Provider to the extent that it is based on a claim that any
Product infringes a third party's copyright or a patent duly issued by
the United States of America. FalconStor shall pay all damages and
costs finally awarded against Solution Provider in such action,
provided that FalconStor is notified in writing of the existence of
such claim against Solution Provider within seven (7) days of Solution
Provider's first learning of the same; and provided that FalconStor is
given full authority to control the defense, costs and settlement of
the claim and that FalconStor receives reasonable cooperation and
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assistance from Solution Provider. FalconStor will not be obligated to
defend or otherwise indemnify Solution Provider in any lawsuit or as to
any claim which arises from or relates to any combination of the
Product with another product not supplied by FalconStor, or if such
claim is based upon a use of the Product for a purpose for which it was
not designed or if the Product has been modified by any party other
than FalconStor. In lieu of the foregoing indemnification obligations,
FalconStor shall have the option, at its expense, either to procure for
an End User the right to continue using the Product or to replace or
modify the Product so that it is no longer infringing, or, if such
options are not reasonably available, to refund to Solution Provider
the amount actually paid by Solution Provider to FalconStor for the
Product. The foregoing states the entire obligation of FalconStor with
respect to the infringement of intellectual property rights of any
third party.
b. Solution Provider shall indemnify and hold FalconStor harmless from and
against all claims, judgments, awards, costs, expenses, damages and
liabilities (including reasonable attorneys' fees) of whatsoever kind
and nature that may be asserted, granted or imposed against FalconStor
directly or indirectly arising from or in connection with (i) any
claims that any software supplied by Solution Provider (other than any
unmodified Products provided by FalconStor) infringes any third party
intellectual property rights; (ii) any misrepresentation made by
Solution Provider regarding FalconStor or the Products; and (iii) any
warranty, condition, representation, guarantee or indemnity granted by
Solution Provider with respect to the Products in addition to the
limited warranty specified in the Section 16 of this Agreement titled
"Limited Warranty."
18. DEFAULT AND TERMINATION
a. Either party may terminate this Agreement, with or without cause, on
thirty (30) days written notice to the other party.
b. If Solution Provider fails to pay any sum of money due and owing under
this Agreement within ten (10) days of written notice thereof from
FalconStor, FalconStor shall have the right to terminate this Agreement
without further notice to Solution Provider. If either party breaches
any of the terms, conditions or provisions of this Agreement, and fails
to cure such breach within thirty (30) days after written notice
thereof, the other party shall have the right to terminate this
Agreement without any further notice.
c. FalconStor shall also have the right to terminate this Agreement
immediately and cancel any unfilled portion of it if (i) Solution
Provider ceases business, files for bankruptcy or becomes bankrupt or
insolvent, or enters into any arrangement or composition with its
creditors or if a receiver is appointed to direct the business of
Solution Provider, (ii) Solution Provider attempts to sell or assign,
or sells or assigns any or all of its rights, duties or obligations
under this Agreement, or the Agreement itself, to any person or entity,
in whole or in part, whether by assignment, merger, transfer of assets,
sale of stock, operation of law or otherwise, without FalconStor's
prior written consent; (iii) Solution Provider violates any of the
conditions of Section 15; or (iv) there is a sale or transfer, whether
by operation of law or otherwise, of the direct or indirect control of
Solution Provider.
d. If this Agreement expires or is terminated by either party, for any
reason, Solution Provider will immediately pay all sums due and owing
to FalconStor. All Product licenses properly distributed by Solution
Provider shall survive termination of this Agreement. Upon the
expiration or termination of this Agreement, all rights and licenses to
use and distribute the Products granted by FalconStor to Solution
Provider will immediately cease and Solution Provider shall cooperate
with FalconStor. to terminate relations in an orderly manner.
10
e. Upon termination of this Agreement, Solution Provider shall immediately
cease to use any documentation or advertising identifying it as a
Solution Provider or representative of FalconStor or the Products.
f. In the event of a party's uncured breach of this Agreement, the
non-breaching party may, in addition to the right to withhold its
performance under and/or terminate this Agreement, avail itself of all
other rights, remedies and causes of action available at law, in equity
or otherwise, against such party for damages as a result of such
breach. Unless otherwise provided in this Agreement, remedies shall be
cumulative and there shall be no obligation to exercise a particular
remedy.
g. Solution Provider will not be entitled under local law or otherwise to
receive any payment from FalconStor whether for actual, indirect,
special or consequential damages, costs or expenses as a result of
expiration or termination of this Agreement, all of which Solution
Provider expressly waives. SOLUTION PROVIDER ACKNOWLEDGES THAT IT HAS
READ THIS AGREEMENT, UNDERSTANDS THE TERMS UTILIZED HEREIN AND AGREES
TO THE ENFORCEMENT OF THE TERMS AND CONDITIONS AS SET FORTH HEREIN.
h. Except as set forth below in Section 18(i), upon expiration or
termination of this Agreement, Solution Provider shall immediately
return to FalconStor, at Solution Provider's expense, all copies of the
Product not yet distributed, all demonstration copies of the Product,
all Documentation and all Product brochures, marketing collateral and
materials, together with a certified statement by a duly authorized
officer of Solution Provider stating that all such Products and
materials and any other confidential information of FalconStor have
been returned to FalconStor.
i. In the event of any termination of this Agreement (other than
termination by FalconStor under Sections 18(b) or (c) above), Solution
Provider shall be entitled to: (i) retain one Demonstration Software
license solely for purposes of providing support to End Users for the
remainder of any then current support contracts; and (ii) to
distribute, for a period not to exceed ninety (90) days, any Products
already paid for and held in its inventory as of the termination date,
subject to its continuing compliance with all terms of this Agreement.
j. Any expiration or termination of this Agreement shall not prejudice,
limit or restrict any other rights or remedies either party may have
arising prior to such expiration or termination. FalconStor shall be
under no obligation to refund any amounts paid to FalconStor by
Solution Provider for any undistributed copies of the Product held by
Solution Provider upon any expiration or termination of this Agreement,
including, without limitation any copies of the Product returned by
Solution Provider to FalconStor pursuant to Section 18(h) above, except
in the event that FalconStor terminates this Agreement without cause
under Section 18(a).
k. In addition to this Section 18, Sections 4, 10, 13, 14, 15, 16, 17, and
19 shall survive termination of this Agreement.
19. MISCELLANEOUS
a) The laws of the state of New York shall govern the construction and
enforceability of this Agreement. The parties agree that any action
arising under or relating to this Agreement or the Products shall lie
within the exclusive jurisdiction of any State or Federal court located
in the State of New York; provided that nothing in this Section will
prevent FalconStor from seeking injunctive relief against Solution
Provider or filing actions for payment of outstanding amounts in any
court of the Territory. Solution Provider consents to the exercise of
jurisdiction by any State or Federal court located in the State of New
York and agrees that process may be served on Solution Provider in any
such action by mailing it to Solution Provider at the address set forth
above. If either party
11
is compelled to seek judicial enforcement of its rights under this
Agreement, the prevailing party in any such action shall be entitled to
recover its costs incurred in such action, including reasonable
attorneys'fees.
b) Each provision of this Agreement is severable from the entire
Agreement, and in the event that any provision is declared invalid or
unenforceable, that provision shall be amended if possible to be
enforceable, but in any event, the remaining provisions hereof shall
remain in effect.
c) All notices and demands of any kind or nature which any party to this
Agreement may be required or may desire to serve upon any other in
connection with this Agreement shall be in writing and may be served
personally or by prepaid registered mail (return receipt requested) or
by private mail service (e.g., Federal Express) if a confirmation of
delivery is obtained, in either case to the addresses shown on page 1
of this Agreement. Any party hereto may from time to time, by notice in
writing served upon the other parties as aforesaid, designate a
different mailing address or a different person to which following such
service all further notices or demands are thereafter to be addressed.
d) The parties hereto are independent contractors and have no power, and
shall have no power, nor will either party represent that it has any
power, to bind the other party or to assume or to create any obligation
or responsibility, expressed or implied, on behalf of the other party
or in the other party's name. This Agreement shall not be construed as
constituting FalconStor and Solution Provider as partners or joint
venturers or to create any other form of legal association which would
impose liability upon one party for the act or failure to act of the
other.
e) No waiver by either party of any default shall operate as a waiver of
any other default or of a similar default on a future occasion. No
waiver of any term or condition shall be effective unless in writing
and signed by the party against whom enforcement of the waiver is
sought. Neither party shall be responsible for any failure to perform
any obligation hereunder (except a failure to pay) due to causes beyond
its reasonable control.
f) This Agreement (including any attached Exhibits) is the complete and
exclusive statement of the understanding between the parties and
supersedes all prior agreements and representations between them
relating to the subject matter of this Agreement. Amendments to this
Agreement shall not be effective unless they are in writing and signed
by authorized representatives of both parties.
12
g) Solution Provider may not assign this Agreement, or any rights and
obligations hereunder, to any third party without the express written
permission of FalconStor.
IN WITNESS WHEREOF, the undersigned authorized representatives of the parties
have affixed their signatures as of the Effective Date.
SOLUTION PROVIDER FALCONSTOR SOFTWARE, INC.
NAME: Mti Technology Corporation
/s/ Mark Franzen /s/ Reijane Huai
- --------------------------- ---------------------------
(Authorized Signature) (Authorized Signature)
Chief Financial Officer President & CEO
- --------------------------- ---------------------------
(Title) (Title)
May 7, 2003 7/19/03
- --------------------------- ---------------------------
(Date) (Date)
EXHIBIT I
Discount from then current MSRP on software sales: 48%
Discount from then current MSRP on maintenance/support sales: 48%
Discount from then current MSRP on maintenance/support sales renewals: 48%
NOTE: Target amounts for discount on renewal are as follows:
Net Sales to FalconStor Discount
- ----------------------- --------
$605,001 or greater 48%
$500,001 to $605,000 45%
$225,001 to 500,000 37.5%
$0 to $225,000 30%
"Net Sales" means amounts actually received by FalconStor for software and
maintenance and support, less allowances for bad debt and other claims.
Discount targets to be reviewed for adjustment based on actual sales for any
renewal term of this Agreement.
1
Exhibit II
[FALCONSTOR SOFTWARE LOGO]
CLIENT SUPPORT HANDBOOK
FOR
SOLUTION PROVIDERS AND RESELLERS
1.0 SERVICE AND SUPPORT REQUIREMENT
The SP/Reseller will be responsible for working directly with the end users, and
FalconStor Support will work directly with the SP/Reseller, as necessary. The
SP/Reseller represents and warrants that it is experienced in, capable of, and
staffed to provide Level 1 support (as defined below). FalconStor offers
training programs to assist in attaining this level of expertise on FalconStor
products.
FalconStor will provide Level 2 support (as defined below).
2.0 SUPPORT LEVEL DEFINITIONS
2.1 LEVEL 1 SUPPORT
Level 1 support is the first line, direct end user contact, most likely via a
telephone call-handling group provided by the SP/Reseller.
Level 1 support includes:
- First contact, direct end user interaction
- Information collection and analysis
- Identification of whether the problem is known and has a known
solution
- Troubleshooting and problem reproduction
- Problem report administration and tracking
The parties agree that end users shall not have the right to contact FalconStor
directly for questions related to the IPStor products.
2.2 LEVEL 2 SUPPORT
Level 2 support is provided by FalconStor's Premium Support Engineers (PSE).
Level 2 is the first point of contact for technical issues between FalconStor
and the SP/Reseller. Once a problem is escalated by the SP/Reseller to Level 2,
FalconStor is responsible for resolution and will utilize commercially
reasonable resources to resolve the problem. SP/Reseller shall limit the number
of support personnel authorized to contact FalconStor to five (5) and ensure
that these personnel have attended the IPStor Training Courses, 1.2 and 1.3,
taught at the FalconStor training facility. SP/Reseller shall identify the five
support personnel on Attachment 1 to this handbook and FalconStor shall not
accept support calls from any other individuals. It shall be SP/Reseller's
responsibility to update the attachment as necessary.
1
3.0 FALCONSTOR'S SOFTWARE SUPPORT LEVEL
FalconStor will provide engineering level support to the SP/Reseller engineering
staff as needed to isolate problem cause, make bug fixes to FalconStor supplied
code, and produce the object code required by the SP/Reseller to support and
update IPStor's products.
3.1 METHODS OF REQUESTING SUPPORT
There are four levels of severity when contacting FalconStor for support.
Depending upon the perceived level of severity, you may choose to contact us
either by phone or through our website.
3.1.1 PHONE
FalconStor technical support will be available via telephone during
normal working days between the hours of 9:00 AM and 6:00 PM, Eastern
Time. For end users who have purchased "Gold," or "Individual Premium
Incident" support, support between 6:00 PM and 9:00 AM, Eastern Time is
available via answering service, 24 hours a day, 365 days per year.
Calls placed via the answering service will receive a response from a
FalconStor technical support representative within two hours. Typically
you would contact FalconStor by phone for calls that are classified as
priority 1 and 2 (see below).
3.1.2 ONLINE
Technical Support is also available through FalconStor's website at
www.falconstor.com/supportrequest.htm. Requests opened online during
business hours will be answered no later than the next business day.
Requests opened online after business hours will be answered no later
than the second business day. Requests opened online by end users who
have purchased "Gold," or "Individual Premium Incident" support will be
answered within 24 hours. Typically you would contact FalconStor via
the online request form for calls that are classified as priority 3 and
for Requests for Enhancement-RFE (see below).
3.2 FALCONSTOR/SP/RESELLER JOINT RESPONSIBILITY
FalconStor and the SP/Reseller will establish contacts to report problems, track
status, exchange technical information, track build requirements, make bug fixes
and coordinate the transfer of software files.
FalconStor Development Engineering. FalconStor will assign Development Engineers
as required to resolve all SP/Reseller's SPRs and provide engineering level
support to the SP/Reseller's engineering staff.
FalconStor Engineering. The SP/Reseller will designate specific members of their
engineering staff who are authorized to have engineering level contact with the
designated FalconStor Engineer. However, the SP/Reseller specified contacts are
required to send problem reports and receive problem status via FalconStor
Technical Support and will not contact the FalconStor Engineering staff
directly.
3.3 PROBLEM ESCALATION
If the FalconStor technical support group determines that it is unable to
resolve the problem with its own resources, it will escalate the problem to the
appropriate personnel.
In those cases where FalconStor personnel are required to make direct telephone
or field contact with a customer of the SP/Reseller to obtain problem
information, the SP/Reseller will designate a customer representative to be
present for the duration of the customer contact.
In those cases where the SP/Reseller requires on-site assistance to install, set
up, resolve operational issues, or obtain necessary diagnostic information in
order to solve a problem, FalconStor will provide the services of a field
applications engineer or a product development engineer, as determined by
FalconStor, for that purpose. If it is determined that the cause of the problem
is not due to a defect in the FalconStor-supplied product, the SP/Reseller will
reimburse FalconStor for time and materials at FalconStor's then-standard rate
plus reasonable expenses for transportation, meals and lodging.
2
3.4 DEFINITIONS
BUG RESOLUTION: An analysis of the problem has been performed and determined to
be a FalconStor problem, the area of the system causing the problem is
identified, and it is possible to estimate the effort to fix the problem.
BUG FIX: The problem has been fixed, incorporated into an engineering build, and
is ready for FalconStor's Quality Assurance Department to verify the fix.
3.5 BUG PRIORITY LEVELS AND RESPONSE TIME
If the FalconStor technical support group determines that the problem may be due
to a defect in the FalconStor-supplied product, the problem will be escalated to
FalconStor engineering via the normal FalconStor System Problem Report ("SPR")
process.
- --------------------------------------------------------------------------------------------------
PRIORITY LEVEL 1 2 3 4 5
- --------------------------------------------------------------------------------------------------
Priority Level A production Customer has Customer has Customer has Customer has
Definition system is a serious issue a serious issue a minor issue a Minor
down or with a feature with a feature with a feature question,
severely necessary to for which a for which a issue or
impacted its work for work-around work-around enhancement
as a result of which it has exists, a exists, a usage request.
a FalconStor discovered no minor issue question or a
software work-around with a feature high-priority
Product and which for which no enhancement
completely work-around request.
prevents the exists or a
feature from critical usage
being used. question.
- --------------------------------------------------------------------------------------------------
Initial 2 business 2 business 4 business 4 business 6 business
Response hours hours hours hours hours
from a TSR*
- --------------------------------------------------------------------------------------------------
Case Status As status As status As status As status As status
Updates changes or changes or changes or changes changes
daily daily every 3 days
- --------------------------------------------------------------------------------------------------
Defect/ Daily As status Within 24 Within 24 Within 24
Enhancement changes hours of hours hours
Request status change of status of status
Status change change
Updates**
- --------------------------------------------------------------------------------------------------
* Technical Support Representatives (TSRs) are our first line of technical
support representatives who input the Customer's case into our systems and
provide the Customer with a case number.
** The Customer may call Technical Support at any time to receive an update on
Defect/Enhancement Requests.
3
Attachment 1
SP/Reseller Technical Support Contacts
SP/Reseller 1st Technical Support Contact
Company: MTI
Name: Chris Bourne
Phone: +44 (l) 483 520 200
Email: chris.bourne@uk.mti.com
SP/Reseller 2nd Technical Support Contact
Company: MTI
Name: Alasdair Young
Phone: +44 (1) 483 520 200
Email: alasdair.young@uk.mti.com
SP/Reseller 3rd Technical Support Contact
Company: MTI
Name: Carlos Sanddoval
Phone: (800) 999-9684
Email: csondoval@mti.com
SP/Reseller 4th Technical Support Contact
Company: MTI
Name: Mathew Keane
Phone: (800) 999-9684
Email: mkeane@mti.com
SP/Reseller 5th Technical Support Contact
Company: MTI
Name: Larry Herring
Phone: (800) 999-9684
Email: lherring@mti.com
FalconStor Software
FalconStor - Primary Support Contact
Name:
Phone:
Email:
FalconStor Secondary Support Contact
Name:
Phone:
Email:
4
EXHIBIT III
[FALCONSTOR SOFTWARE LOGO]
CLIENT SUPPORT HANDBOOK
FOR
END USERS
For customers, partners, and distributors (the "Customer") who purchase
Technical Support services for software products licensed from FalconStor (the
"Products"), FalconStor provides support services, (as such term is defined in
the Software License Agreement between the customer and FalconStor). Support
services include answering questions with regard to the operation of the
software and troubleshooting.
TECHNICAL SUPPORT
Customers may contact Technical Support in the following ways:
Americas:
- - E-mail: support@falconstor.com
- - Web: http://www.falconstor.com
- Tech Support request form:
http://www.falconstor.com/supportrequest.htm
- - Fax: (631) 506-7633
- - Phone: (631) 777-3332
9 a.m. - 6 p.m. EST, Monday through Friday on non-holidays. (Standard Support)
24 X 7, 365 days per year including Holidays. (Gold Support Contracts or Per
Incident)
Europe, the Middle East, and Africa (EMEA)
- - E-mail: infoEurope@falconstor.com
- - Web: http://www.falconstor.com
- Tech Support request form:
http://www.falconstor.com/supportrequest.htm
- - Fax: 33-1-3923-9557
- - Phone: +33-1-3923- 9550
9 a.m. - 6 p.m. GMT, Monday through Friday on non-holidays
Asia Pacific:
- - E-mail: infoAsia@falconstor.com
- - Web: http://www.falconstor.com
- Tech Support request form:
http://www.falconstor.com/supportrequest.htm
- - Fax: 886 (4) 2319-7269
- - Phone: +886 (4) 2320 0828
9 a.m. - 6 p.m. GMT-12, Monday through Friday on non-holidays
Note: International remote office handles Standard Support for their territory.
7x24 support will be handled by US office. All Technical Support databases
1
(contact, knowledge) are centrally located at US headquarters and are accessible
via the Internet. All offices follow the same policies and procedures.
LOGGING A CASE
To log a case, the Customer can contact FalconStor Technical Support via any of
the methods mentioned above. Upon logging a Case, the Customer will receive a
case identification number for future reference.
When logging a case, be prepared to provide the following information.
- - Name
- - Company
- - Customer Site (if different from own company)
- - Phone and fax numbers
- - E-mail address
- - FalconStor software product(s) being used, including version and build
number(s)
- - OS platform IPStor server is running on
- Linux kernel or Solaris kernel patch
- - Network environment
- IP or FibreChannel
- - Brief description of the case
- - Priority of the case
- - Error message(s)
- - Copy of the X-ray(s)
- - Steps taken to troubleshoot the case thus far
If the Customer is unable to reach FalconStor Technical Support by phone, the
Customer can leave a voice mail message or contact Technical Support via e-mail.
The Customer should include the following information in his/her message:
- - Name
- - Company
- - Brief description of case
- - Preferred contact method and contact information
FALCONSTOR ONLINE SUPPORT SITE
The Online Support Site is a centralized location to log cases, access product
documentation, and search the Knowledge Base. The Online Support Site is located
at http://www.falconstor.com/support.html
FALCONSTOR KNOWLEDGE BASE
The Knowledge Base is a repository of technical documentation aimed at providing
24-hours, seven-days-a-week online technical support. The Knowledge Base is
located under the 'Knowledge Base' link at
http://www.falconstor.com/knowledgebase.htm
The Knowledge Base is available to all FalconStor employees, distributors,
partners and customers with licensed, active maintenance agreements. It is also
available to all evaluating customers for the duration of the evaluation period.
The Customer can log on to the Knowledge Base via http : //www.falcons tor.
com/knowledgebase.htm after obtaining a FalconStor Internet account.
The Knowledge Base consists of:
- - Troubleshooting documents
- - White Papers
- - Frequently Asked Questions (FAQs)
- - Release Notes
2
- - Readmes
FAQS
FAQs may also be accessed at http://falconstor.com/fag.htm.
WHITE PAPERS
White Papers may also be accessed at http://falconstor.com/whitepapers.htm.
CERTIFICATION MATRIX
FalconStor's IPStor Certification Matrix can be accessed at
http://falconstor.com/certification_matrix_active.htm
THIRD PARTY SOFTWARE/HARDWARE
FalconStor Technical Support does not provide technical support for third-party
software/hardware, but we will do our utmost to use our established skills to
assist in the cases that the Customer may have. The Customer may, however, be
requested to log the outstanding case with the relevant third party vendor. This
will ultimately speed the resolution of the Customer's case.
PRODUCT UPDATES
Upon the release of a major Product version, FalconStor Technical Support will
continue to support the most recent major release of the Product version
(numbered to the left of the decimal point) for one year.
TECHNICAL SUPPORT LEVELS
FalconStor offers three levels of technical support.
STANDARD SUPPORT
Every Customer with a current maintenance agreement receives our standard
support level, Silver Support. Silver Support provides:
- - Live Support during standard business hours: The designated Support Liaisons
have access to Technical Support engineers from 9 a.m. to 6 p.m. (EST) Monday
through Friday (except holidays). All calls will receive a response from
FalconStor within two business days.
- - Online Support Site: The Support Liaison has access to the Online Support Site
(Online Support System,
Knowledge Base and Download Site 24 hours per day, seven days per week
(including holidays). Requests opened online will be answered no later than the
second business day.
- - Multiple Contact Methods: The designated Support Liaison can contact Technical
Support via multiple methods including e-mail, fax, web and phone.
GOLD SUPPORT
Gold Support offers all the benefits of Silver Support plus:
- - 24x7x365 Support: The designated Support Liaisons have emergency access to
Technical Support Engineers 24 hours per day, seven days a week, including
holidays.
- - Support outside of 9:00 a.m. to 6:00 p.m., business days, is provided via
answering service. Calls placed via the answering service will receive a
response from FalconStor within 2 hours.
- - Support requests opened on-line will be answered within 24 hours.
3
The following summarizes all services available with each technical support
offering.
- -----------------------------------------------------------------------
SERVICES STANDARD GOLD
- -----------------------------------------------------------------------
24 x 7 Support -
- -----------------------------------------------------------------------
24 x 7 Knowledge Base Support - -
- -----------------------------------------------------------------------
Number of Support Contacts Unlimited Unlimited
(Knowledge Base)
- -----------------------------------------------------------------------
Multiple Contact Methods - -
- -----------------------------------------------------------------------
Access to GA Products - -
- -----------------------------------------------------------------------
Priority Involvement in -
Beta Programs
- -----------------------------------------------------------------------
Number Technical Support Calls 50 50
per. year
- -----------------------------------------------------------------------
- -----------------------------------------------------------------------
OPTIONS STANDARD GOLD
- -----------------------------------------------------------------------
Individual Incident x x
Standard
- -----------------------------------------------------------------------
Individual 7x24 Incident Premium x x
- -----------------------------------------------------------------------
4
EXHIBIT IV
[FALCONSTOR LOGO]
Bank Wiring Instructions
Chase Manhattan Bank
New York, New York
SWIFT # CHASUS33
ABA # 021000021
For credit to account# 445500343465
For the name of FalconStor, Inc.
Tel: 516-365-4701 (Chase Bank)
1
EXHIBIT V
Marketing Contact Price List Contact
Lance Broell STEPHEN SCHWARZ
[Print Name] [Print Name]
Phone: _714-481-7846 Phone: 714-481-7847
Email Address: broell@mti.com Email Address: sschwarz@mti.com
1
EXHIBIT VI
TERRITORY
The Territory for this Agreement is worldwide
1