CM-07-12-259SUPPLEMENTAL AGREEMENT NO. 1
TO STRATUS TECHNOLOGIES IRELAND LIMITED'S
"MASTER SERVICES AGREEMENT (GENERAL TERMS AND CONDITIONS)"
By signature hereon, both parties expressly accept and agree that this
"Supplemental Agreement No. 1" shall amend and supplement Stratus Technologies
Ireland Limited's "Master Services Agreement (General Terms and Conditions)", its
attached Addendum, and any other documents which are made a part of same by reference
or incorporation. Stratus Technologies Ireland Limited's "Master Services Agreement
(General Terms and Conditions)" is hereafter referred to as the "Agreement."
Additionally, both parties expressly accept and agree that all such contract documents are
complementary, and what is required by one shall be as binding as if required by all.
Additionally, both parties expressly accept and agree that, in the event of disagreement, the
following order of precedence of documents shall govern interpretation: (a) this signed
Supplemental Agreement No. 1 shall have top priority; and (b) the signed "Master Services
Agreement (General Terms and Conditions)", and its Addendum shall have second
priority.
For good and sufficient consideration, which the parties hereby affirm, the parties
contractually agree as follows:
(1) On the first page of the Agreement in the first paragraph, the customer name shall
be City of Round Rock, Texas.
(2) On the first page of the Agreement under "Service Hours," the hours listed shall be
understood to be Central Daylight Time.
(3) On the first page of the Agreement under 2.1 "Service Charges," the following
sentence shall be struck through as written:
and shall be replaced by the following:
Any prepaid service charges shall be refundable upon termination of the
Agreement.
(4) On the first page of the Agreement under 2.1 "Service Charges," the following
sentence shall be struck through as written:
00117370/jkg
(5) On the first page of the Agreement under 2.2 "Price Changes," the following
sentences shall be struck through as written:
and shall be replaced by the following:
Service charges may not be changed by Stratus during the initial term of this
Agreement. Thereafter, service charges may only be changed at the beginning of
each one-year renewal period provided Stratus gives Customer ninety (90) days
advance written notice. Upon receipt of such notice, Customer has the right to elect
whether to continue through the next renewal period or terminate the Agreement.
(6) On the first page of the Agreement under 3.1, the following sentence shall be struck
through as written:
and shall be replaced by the following:
Customer shall pay all amounts in accordance with the following Prompt Payment
Policy:
Prompt Payment Policy. Payments will be made within thirty (30) days after the
City receives the supplies, materials, equipment, or the day on which the
performance of services was completed or the day on which the City receives a
correct invoice for the service, whichever is later. Stratus may charge a late fee (fee
shall not be greater than that which is permitted by Texas law) for payments not
made in accordance with this Prompt Payment Policy; however, this policy does not
apply to payments made by the City in the event:
.1 There is a bona fide dispute between the City and Stratus concerning the
supplies, materials, services or equipment delivered or the services performed that
causes the payment to be late; or
.2 The terms of a federal contract, grant, regulation, or statute prevent the City
from making a timely payment with federal funds; or
.3 There is a bona fide dispute between Stratus and a subcontractor or between
a subcontractor and its suppliers concerning supplies, material, or equipment
delivered or the services performed which caused the payment to be late; or
.4 The invoice is not mailed to the City in strict accordance with instructions, if
any, on the purchase order or contract or other such contractual agreement.
2
(7) On the first page of the Agreement under 3.1, the following sentence shall be struck
through as written:
and shall be replaced by the following:
Notwithstanding anything herein contained to the contrary, except in the case of
termination for Stratus' material breach, any and all payments of amounts due
under this Agreement are non-refundable.
(8) On the first page of the Agreement under 3.1, the following sentence portion shall be
struck through as written:
(9)
and shall be replaced by the following:
Customer is a tax-exempt entity, being a Texas home -rule municipality.
On the second page of the Agreement under 5.2, the following sentences shall be
struck through as written:
and shall be replaced by the following:
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER
REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE
DO NOT WARRANT UNINTERRUPTED OR ERROR -FREE OPERATION OF A
SYSTEM OR THAT ALL MINOR PRODUCT ERRORS OR DEFECTS WILL BE
CORRECTED.
3
(10) On the second page of the Agreement under 8 "Changes to the Agreement Terms,"
the entire section shall be deleted in its entirety and shall be replaced as follows:
Changes during the initial term of this Agreement may not be made by the parties
unless they agree in advance in writing. Thereafter, changes to this Agreement
may only be made at the beginning of each one-year renewal period provided
Stratus gives Customer ninety (90) days advance written notice. Upon receipt of
such notice, Customer has the right to elect whether to continue through the next
renewal period or terminate the Agreement.
(10) On the third page of the Agreement under 9.3 "Exceptions," a sentence shall be
added as follows:
Notwithstanding anything herein to the contrary, the parties recognize that
Customer/City is subject to the Texas Public Information Act and its duties run in
accordance therewith.
(12) On the third page of the Agreement under 10.5, the section shall be deleted in its
entirety and replaced with the following:
This Agreement shall be enforceable in Round Rock, Texas, and if legal action is
necessary by either party with respect to enforcement of any of the terms or
conditions herein, exclusive venue for same shall lie in Williamson County, Texas.
This Agreement shall be governed by and construed in accordance with the laws
and court decisions of the State of Texas.
(13) On the third page of the Agreement after 10.5, the following sections shall be added:
10.6. NON -APPROPRIATION AND FISCAL FUNDING
This Agreement is a commitment of City's current revenues only. It is understood
and agreed that City shall have the right to terminate this Agreement at the end of
any City fiscal year if the governing body of City does not appropriate funds
sufficient to purchase the services as determined by City's budget for the fiscal year
in question. City may effect such termination by giving written notice of
termination at the end of its then -current fiscal year.
10.7. DISPUTE RESOLUTION
If a dispute arises under this Agreement, the parties agree to first try to resolve the
dispute with the help of a mutually selected mediator. Any costs and fees, other than
attorney fees, associated with the mediation shall be shared equally by the parties.
4
City and Stratus hereby expressly agree that no claims or disputes between the
parties arising out of or relating to this Agreement or a breach thereof shall be
decided by any arbitration proceeding, including without limitation, any proceeding
under the Federal Arbitration Act (9 USC Section 1-14) or any applicable state
arbitration statute.
IN WITNESS WHEREOF, the parties have executed this Supplemental Agreement
No. 1 as indicated below.
ATTEST:
City Secretary
FOR T , APPROVE ► AS TO FORM:
Stephan
Sheets,
i'ty Attorney
CITY OF ROUND ROCK, TEXAS
By:)
-
Printe Nay YYirD
Title: Warr
Date:— On
STRATUS TECHNOLOGIES IRELAND
LIMITED
By:
(?",*,\Qati,---
LiA(2,
Printed Name: Or No .
Title: , k) tnxf, V f C' -/L
Date:SQQ�iQ�t-
5
ORIGINAL
AGREEMENT
FOLLOWS
Technologies
StratUS
Master Services Agreement
(General Terms and Conditions)
7 'NJ
I R E220084
This Master Services Agreement (the "Agreement") is made between Stratus Technologies Ireland Limited, with offic s at College usiness &
Technology Park, Blanchardstown Road North, Dublin 15, Ireland ("Stratus") and (i iT y (IF C i b
("Customer" or "you"). �'�� � C�
Stratus agrees to provide the services, as defined in the applicable Service Addend (the "Services"), subject to the terms
and conditions contained in this Agreement, for the supported hardware ("Supported Hardware" or "Hardware") and supported software products
("Supported Software" or "Software") comprising the system(s) listed in your Service Schedule(s) (each a "System" or "Covered System").
Stratus' obligations to provide Services are subject to your compliance with all of your obligations under this Agreement.
Eligibility: Systems first placed under Service within ninety (90) days from the System shipment date are automatically deemed Service Ready
and eligible for coverage under this Agreement. Systems first placed under Service more than ninety (90) days from the System shipment date
must first be inspected and certified by Stratus or its authorized service representative as Service Ready. Additionally, Systems, Service coverage
for which has lapsed for a period of ninety (90) days or more, will be subject to inspection and certification, at your expense, before Service
coverage will be reinstated. Such inspection and certification will be at Customer's expense based on Stratus' then prevailing rates. Any work
required to bring the System up to a Service Ready condition will also be at Customer's expense.
Stratus Affiliates: The Services shall be provided by Stratus or its affiliates. As used herein affiliates means, legal entities that are owned by
Stratus or which are under common ownership with Stratus. In providing such Services Stratus and its affiliates may engage the services of sub-
contractors. The foregoing however shall not relieve Stratus of its primary obligations under this Agreement.
Service Hours: Except as otherwise specified in this Agreement, a Service Schedule, Service Level Addendum, or an Optional Service
Addendum, all Services required of Stratus under this Agreement shall be provided only during the hours of 9:00 A.M. to 5: 00 P.M, Monday
through Friday, excluding locally observed holidays.
1. TERM AND TERMINATION
1.1. Term. Unless otherwise agreed, the initial term for Services shall commence on the Effective Date of this Agreement and shall continue
for a period of one (1) year. Thereafter, the term for Services shall automatically renew for successive terms of one (1) year each unless either
party gives written notice to the other of its intention not to renew at least sixty (60) days prior to the commencement of the next term; provided,
however, Customer may terminate this Agreement at any time after the first year by giving sixty (60) days prior written notice of termination to
Stratus.
1.2. Termination for Breach. Either party (the "Non -breaching Party") may terminate this Agreement in the event the other party (the
"Breaching Party") breaches any of its material obligations (each a "Material Breach") under this Agreement and fails to cure said Material
Breach within thirty (30) days of Breaching Party's receipt of written notice of the Material Breach from the Non -breaching Party. Material
Breach" shall also be deemed to include any instance in which the Breaching Party files a voluntary petition in bankruptcy or under any similar
insolvency law, makes an assignment for the benefit of its creditors, has filed against it any involuntary petition in bankruptcy or under any
similar insolvency law, or a receiver is appointed for, or a levy or attachment is made against, substantially all of its assets, if any such petition is
not dismissed or such receiver or levy or attachment is not discharged within sixty (60) days after the filing or appointment.
2. PRICING, INVOICING AND TAXES
2.1. Service Charges: The service charges that will apply to the Products supported under this Agreement are as set forth in the applicable
Service Schedule. Updates to the Service Schedule may be provided by contacting your local service representative. Unless otherwise specified
in a particular Service Schedule, your service charges will be billed annually and are payable as set forth in Section 3 below. Any prepaid service
charges shall be non-refundable upon termination of the Agreement, unless termination is due to Stratus' breach. Stratus' obligation to provide
these services is contingent upon your prompt payment of the invoice and any other applicable charges. Payment of any amount invoiced under
this Agreement constitutes your agreement to all of the terms and conditions contained herein, to the exclusion of all others.
2.2. Price Changes: At any time, and from time to time after expiration of a Service Schedule, Stratus may increase the service charges by
giving you ninety (90) days advance written notice. The price change will apply on the first day of the applicable invoice period on or after the
effective date specified in the Stratus price change notice. Hourly rates, travel charges and one-time charges are subject to change without notice.
2.3. Additional Charges: You may incur additional charges for any Services provided by Stratus for the following reasons: (i) because of
fire, natural disaster, neglect, misuse, abuse and war or other events or causes of force majeure; and (ii) unauthorized modifications; use of non -
Stratus supplied equipment or software; damage resulting from environmental considerations such as electrical power, heat, cold, or humidity
outside the published product specifications; or operating the System in other than the fully redundant mode of operation; and (iii) if we are
required to travel beyond fifty (50) miles or eighty (80) kilometers of the nearest Stratus service location or use other than private automobile or
scheduled local public transportation to provide Services to you.
3. PAYMENT
3.1. Customer shall pay all amounts within thirty (30) days of receipt of an invoice. Except in the case of termination for Stratus' material
breach, any and all payments of amounts due under this Agreement are non-refundable. Customer also agrees to pay amounts equal to any
applicable taxes resulting from any transaction under this Agreement that Stratus is obligated to pay upon Customer's behalf, except that
Customer shall not be liable for taxes based on Stratus' net income.
3.2. Suspension of Service If Customer's account is ten (10) days or more overdue (except with respect to charges then under reasonable
and good faith dispute), in addition to any of its other rights or remedies, Stratus reserves the right to suspend Services until such amounts are
paid in full; provided however that no suspension shall take effect until and unless Stratus has provided Customer at least five (5) business days
prior written notice that Customer's account is overdue.
3.3. Customer agrees to pay Stratus, on demand, interest at the maximum rate permitted by applicable law for any late payments, together with
any collection and attorney's fees and expenses Stratus incurs in the collection of such overdue amounts.
S103 Master Servi4)41, 66
ce Agreement (February 10 2006)
4. CUSTOMER'S OBLIGATIONS Customer agrees to ensure that, at all times during the term of this Agreement Customer shall:
• For each installation site or System, assign and maintain, a technically skilled employee or agent who will serve as your primary contact
with Stratus for each Covered System; and
• Provide the names and phones numbers of up to four (4) individuals who are authorized to submit calls under this Agreement; and
• Maintain the Covered System(s) in a manner consistent with all applicable product specifications provided by Stratus or the manufacturer;
and
• Provide at no charge to Stratus access to and use of suitable telecommunications equipment needed to establish data communication over
the Stratus Service Network; and
• Execute diagnostic routines and provide the results to Stratus; and
• Access and make appropriate use of Stratus' Internet home page for technical support information; and
• Notify Stratus of any configuration changes to the original Covered System configuration; and
• Where appropriate, use the provided Stratus hardened drivers; and
• Replace customer replaceable units under the remote direction of the Stratus CAC, Customer Engineer or Stratus Authorized Service
Representative; and
• Perform housekeeping services, such as, cleaning, replacing expendable parts (e.g.: batteries, printer ribbons), performing regular operating
checks and providing necessary supplies pertaining to these services; and
• Ensure that all of the data stored on the Covered System(s) is adequately duplicated, documented and protected. Stratus is not responsible
for failure to do so, or for the cost of reconstructing data stored on disks, tapes, or other media that are lost or damaged during the
performance of Services; and
• Ensure that (1) all software installed on the Covered System(s) is properly licensed for use; (2) all non -supported hardware and software
products are fully -compatible with the Stratus -supported hardware and software installed on each Covered System and are fully year -2000
compliant; (3) all Covered System(s) are adequately protected against computer viruses; and
• Install Software product updates and upgrades as made available; and
• Maintain and operate at all times all Covered Systems in a fully redundant mode of operation.
5. WARRANTIES
5.1. WE WARRANT THAT WE WILL PROVIDE, IN A GOOD AND WORKMAN LIKE MANNER, THE SERVICES DESCRIBED IN
THIS AGREEMENT AND IN EACH SERVICE SCHEDULE AND ANY ADDENDA ATTACHED THERETO.
5.2. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES, TERMS AND/OR
CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, SUITABLE QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT
UNINTERRUPTED OR ERROR -FREE OPERATION OF A SYSTEM OR THAT ALL PRODUCT ERRORS OR DEFECTS WILL BE
CORRECTED.
6. LIMITATION OF LIABILITY IN NO EVENT SHALL STRATUS, ITS AFFILIATES OR THEIR RESPECTIVE SUB-
CONTRACTORS BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, PROFIT OR BUSINESS, OR FOR ANY
SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN AN ACTION OF CONTRACT, TORT
OR OTHER LEGAL THEORY. EXCEPT WITH RESPECT TO LOSSES OR DAMAGES ARISING FROM BODILY INJURY (UP TO AND
INCLUDING DEATH), BREACH OF CONFIDENTIALITY OBLIGATIONS, GROSS NEGLIGENCE AND WILFULL MISCONDUCT, THE
LIABILITY OF STRATUS', ITS AFFILIATES, AND THEIR RESPECTIVE SUB -CONTRACTORS FOR DAMAGES FOR ANY CAUSE
WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION (IN CONTRACT OR TORT), SHALL BE LIMITED TO THE
AMOUNT THAT CUSTOMER WOULD HAVE PAID TO STRATUS FOR THE PREVIOUS TWELVE (12) MONTHS OF SERVICE FOR
THE PRODUCT (S) THAT IS THE SUBJECT OF THE CLAIM.
7. STRATUS PROPERTY Support software, including diagnostic routines, Active Service Network or Remote Service Network Agents
and SNMP Agents, as well as support tools, and documentation ("Property"), which we supply under this Agreement, are and shall at all times
remain Stratus' exclusive property. Except where required by law, you agree not to make such Property available or disclose the contents thereof
to any third parties other than your employees and contractors who are performing services for you and have a need to access such Property in
relation to the Systems covered under this Agreement. You agree to take appropriate action, by instruction or agreement with your employees
and contractors who are permitted access, to satisfy your obligations under this Agreement. Further, you agree to immediately return all such
Property to us upon the expiration or termination of this Agreement and or applicable Service Schedule.
8. CHANGES TO THE AGREEMENT TERMS In order to maintain flexibility in the manner, in which we provide service, we may,
after the initial term of a Service Schedule, change the terms and conditions under which the Products listed on that Service Schedule are serviced
under this Agreement, including any Addenda, by giving you not less than ninety (90) days prior written notice. These will only apply as of the
effective date we specify in the notice. You have thirty (30) days from receipt of a change notice in which to reject, in writing the change, and
thereby terminate this Agreement and all affected Service Schedules. Failure to reject the change indicates your conclusive acceptance of the
change. Except as stated above, for a change to be valid it must be in writing and signed by both of us. Additional or different terms in any order
or written communication from you are void.
9. CONFIDENTIALITY
9.1. "Confidential Information" shall mean any information held disclosed in confidence by one party (the "Discloser") to the other party
("Recipient") in connection with this Agreement. Confidential Information shall be so designated by Discloser in writing at the time of
disclosure and if disclosed orally or in any form other than documentation marked with a legend designating it as such, shall be identified by
Discloser as confidential or proprietary and reduced to writing and provided to the Recipient within fifteen (15) days of the date of the oral
disclosure.
9.2. Recipient shall not disclose to any third party the other party's Confidential Information and shall limit access and use to those of its
employees and agents who require such access and use in connection with its rights and obligations under this Agreement. Recipient shall take
appropriate action with its employees and agents to satisfy its obligations hereunder and shall protect Discloser's Confidential Information as it
protects its own Confidential Information of like significance, but in any event with not less than a reasonable degree of care.
9.3. Exceptions. The obligations set forth in this Section shall not apply to information (a) known to Recipient prior to disclosure; or (b) which
S103 Master Service Agreement (February 10 2006)
is or becomes publicly known through no wrongful act of Recipient; or (c) received from a third party under no confidentiality obligation with
respect to the Confidential Information; or (d) required to be disclosed under administrative or court order, or in an arbitration or litigation arising
out of a dispute between the parties or their successors or assigns. If Recipient is legally required to disclose any Confidential Information, it
shall, to the extent allowed and practicable, provide Discloser prompt notice of such requirement so that Discloser may seek a protective order or
other appropriate remedy or waive compliance with respect to that disclosure.
9.4. Remedies. Each party agrees that, in addition to any other remedies available, the other shall be entitled to injunctive relief to enforce the
terms of this Section 9.
10. GENERAL
10.1. We will provide Service only at the location(s) specified in the Service Schedule unless we agree otherwise, in writing.
10.2. Neither party may assign or transfer any of its rights or obligations under this Agreement without the other party's express written consent.
Any attempt to make any such assignment or transfer without the express written consent of the other party will be deemed void.
Notwithstanding the foregoing, either party shall have the right to assign this Agreement to any of its affiliates or in connection with the sale or
transfer of all or substantially all of its assets.
10.3. The waiver or failure of either Party to exercise in any respects any right provided for herein shall not be deemed a waiver of that or any
other right hereunder.
10.4. This Agreement as supplemented by the specific Service Schedule and any associated Addendum thereto as executed by the Parties,
constitutes the entire agreement between the Parties for the subject matter hereof and supersedes all prior and contemporaneous written and oral
representations, proposals, negotiations and communications. In the event of any inconsistency or conflict between this Agreement and a Service
Schedule, the Service Schedule shall prevail.
10.5. This Agreement, the transactions occurring and services provided hereunder shall in all respects be governed by and enforced in accordance
with the laws of the jurisdiction where our affiliate delivering the Services is organized. If Services are delivered by our affiliate in the United
States, the laws of the Commonwealth of Massachusetts (except for the conflict of law principles thereof) shall govern and control.
IN WITNESS WHEREOF, the parties have agreed to the terms and conditions of this Agreement as indicated below.
•! F Apr .ei/UAJLJ 1 (;)(2,-k:
Customer
By:
Name:
Title:
Date:
Amc5
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S103 Master Service Agreement (February 10 2006)
Stratus Technologies Ireland Limited
By:
Name:
Title:
Date
koaio
6P tim kelp-`(
?i rOCE w+u CY
101- W-12Attrdi 5_00A -
STRATUS TECHNOLOGIES IRELAND LIMITED
BLANCHARDSTOWN INDUSTRIAL PARK
BLANCHARDSTOWN
DUBLIN 15
TEL: (353)-1-8096480
FAX: (353)-1-8096476
Siratus
Technologies
ASSURED AVAILABILITY PROGRAM GUARANTEE ADDENDUM
All definitions and terms contained in the Master Service Agreement, the Service Schedule and the Assured Availability Plus or Assured Availability Service
Addendum apply to this Addendum. In the event of inconsistencies or ambiguities, the following order of precedence shall apply: (a) first, this Assured Availability
Program Guarantee Addendum (the "Guarantee") shall govern and control; (b) next the Assured Availability Plus or Assured Availability Service Addendum; (c) the
Service Schedule; and (d) the Master Service Agreement.
Eligibility: Coverage under this Guarantee is available only for Systems, for which Service coverage has been purchased under either the Assured Availability Plus or
Assured Availability Service Addenda, and only if coverage under this Guarantee was subscribed contemporaneously with and at the time of initial purchase of the
Covered System.
1. Service Charge Credit: If the System described in the Service Schedule fails as defined below ("System Failure"), Customer will be entitled to a credit
against future Service payments in a prorated amount equivalent to one month's Service charge for the System that experienced the System Failure.
2. General Conditions and Qualification applicable to this Addendum:
For purposes of this addendum and subject to the following qualifications, a System Failure occurs when a Covered System that was previously functioning
properly becomes unavailable, rending Customers users unable to use it, provided that:
(1) The System Failure must occur during, and as a result of, Customer's use of the Covered Systems exclusively for production purposes as opposed
to development purposes.
(2) Coverage under this addendum for Systems running the Microsoft Windows Server Operating System that are covered under the Assured
Availability Plus Service Level applies only to the extent that a System Failure occurs as the result of the Stratus Hardware, the Stratus ftServer
System Software, or the Stratus supported version(s) of the Microsoft Windows Server Operating System kernel.
(3) Coverage under this addendum for Systems running the Microsoft Windows Server Operating System that are covered under the Assured
Availability Service Level applies only to the extent that a System Failure occurs as the result of the Stratus Hardware or the Stratus ftServer
System Software, but excludes System Failures that result from any other cause, including without limitation the Microsoft Windows Server
Operating System kernel or any other Stratus -Supported Software.
(4) Coverage under this addendum for systems covered under an Assured Availability Service Level for VOS or HP -UX applies only to the extent
that a System Failure occurs as the result of Stratus Hardware, Stratus System Software, or the Stratus supported version(s) of the VOS or HP -UX
Operating System.
(5) Coverage under this addendum for systems running the Red Hat Linux Operating System that are covered under an Assured Availability Plus
Service Level applies only to the extent that a System Failure occurs as the result of Stratus Hardware, Stratus System Software, and the Stratus
supported version(s) and components of the Red Hat Linux Operating System as defined in the Assured Availability Plus Service Level
Addendum.
(6) Coverage under this addendum for systems running the Red Hat Linux Operating System that are covered under an Assured Availability Service
Level applies only to the extent that a System Failure occurs as the result of Stratus Hardware, or Stratus System Software, but excludes System
Failures that result from any other cause, including without limitation, the Red Hat Linux Operating System or any other Stratus -Supported
Software.
(7) The Covered Systems must have been running in the fully redundant mode of operation immediately prior to System Failure. Any system
running a redundant component in simplex mode is ineligible for coverage under this Option, unless and until the component is restored to the
fully redundant mode.
(8) Coverage is limited to the single System, which experienced the System Failure.
(9) Coverage does not apply to problems that occur on more than one occasion or that affect more than one System.
(10) Coverage does not apply where a System Failure results in connection with (a) any planned event, whether initiated by either Stratus or you, such
as a reboot, FCO installation, a software upgrade, hardware component installation or de -installation, or a firmware or similar system
configuration changes; (b) any planned or unplanned event initiated by you outside the scope of your normal operation or use of the Covered
System; (c) known defects or bugs: (d) outages due to security or network problems; or (e) the occurrence of one or more of the following: fire,
natural disaster, neglect, misuse, abuse and war or other events or causes of force majeure, as well as unauthorized modifications, use of non -
Stratus supplied equipment or software and damage resulting from environmental considerations such as electrical power, heat, cold, or humidity
outside the published product specifications.
3. Stratus' Responsibilities:
(1) Stratus will provide you with notification, in writing or over the Stratus Active Service Network (ASN) or Stratus Remote Service Network
(RSN), of any known condition that could cause an availability problem.
(2) When appropriate, the Stratus Service Manager will schedule a meeting to discuss qualification and eligibility of a service credit.
4. Customer's Responsibilities:
(1) Operate the System in fully redundant mode.
(2) Determine if there was an availability problem during any calendar month, prior to requesting a service credit.
(3) Fully implement (within fourteen (14) days of your receipt of written notification from Stratus), any requested procedures (including without
limitation, installation of software bug fixes) intended to avoid any known condition that could degrade system availability.
(4) Notify Stratus in writing, of any request for service credit. You will have waived your right to any credit under this Addendum if you fail to
notify Stratus of a System Failure within thirty (30) days of the System Failure.
-07-062155
S104. Assured Availability Program Guarantee 02-06-2006
Stratus Master Services Agreement
SERVICE SCHEDULE
This Service Schedule is sujlect to and made a part of the Master Services Agreement between Stratus Technologies Ireland Limited and
C f Ty.JJ - Ri tl tib / LXS The Effective Date of this Service Schedule shall be the date of initial installation of the following System(s)
unless a different Effective Date has been agreed and listed below. Stratus agrees to provide and you agree to pay for the Services selected
and described in the Agreement and any Optional Services selected below for the System (Hardware and Software) listed below.
1. Effective Date: [Date of installation or other date agreed date]t "
g �.
2. Customer Contacts:
Please provide full details for the Primary Contact and up to four Named Contacts. Any subsequent changes to the Named Contacts should be
submitted to your local Stratus Representative.
Primary Contact Name: R , 4 a (-,{h Myy. es,-
Address: J
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Email: hele le.„.5* g YC i.! -reek . -I-)(- Ll5
Facsimile: (
SI12. SI12 AA Plus -Windows Service Addendum (March 2 2006) Page 1 of 3
Named Contact Name (1):b t.yuQ,1
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Named Contact Name (2):
Address: f _
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Named Contact Name (4):
Address:
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Phone: ( )
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Email:
Email:
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SI12. SI12 AA Plus -Windows Service Addendum (March 2 2006) Page 1 of 3
3. Selected Service Levels for the Microsoft Windows Operating System
DESCRIPTION OF SERVICES
OPTION
SELECTED
SYSTEM(s)
System
Model # Qty Site ID Location
Service Charges
SERVICE LEVEL:
Assured Availability Plus
*Assured
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Availability Guarantee
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Assured Availability
*Assured AvailabilityGuarantee
ntee
System Availability
OPTIONAL SERVICES:
Extended Business Hours Field Service FRU Replacement
(12x5)
Extended Business Hours Field Service FRU Replacement
(24x5)
Saturday Field Service FRU Replacement (8x6)
Weekend/Holiday Field Service FRU Replacement (8x7)
Weekend/Holiday Field Service FRU Replacement (24x7)
Full CRU/FRU Onsite Replacement, Normal Service Levels
(8x5)
Full CRU/FRU Onsite Replacement, Normal Service Levels
(24x5)
Full CRU/FRU Onsite Replacement, Normal Service Levels
(24x7)
Technical Account Management Services (NTAM)
Expedited Parts Delivery (Same Day)
*The Assured Availability Program Guarantee (the "Guarantee") is subject to the following additional terms and restrictions: (1) only Systems covered under Assured
Availability Plus or Assured Availability Service Level coverage qualify for the Guarantee; and (2) the Guarantee must be selected at time of initial System purchase;
and (3) if the qualifying System is covered under the Assured Availability service level, then coverage under the Guarantee is limited to outages caused solely by the
Stratus Software, the Stratus Hardware or both; coverage under the Guarantee excludes outages caused in whole or in part by the Microsoft operating system; and (4)
the Guarantee is subject to the terms and conditions set forth in the Assured Availability Program Guarantee Addendum.
OPTIONAL SERVICES
Selected Optional Services (if applicable). You may supplement your selected Service Level coverage by purchasing additional on-site and technical support services
offered by Stratus as described above. These services are provided as part of a Service Level and may not be purchased on a standalone basis.
IN WITNESS WHEREOF, the parties have agreed to the terms and conditions of this Service Schedule as indicated below.
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S112. S112 AA Plus -Windows Service Addendum (March 2 2006)
Stratus Technologies Ireland Limited
By:
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STRATUS TECHNOLUGIES IRELAND LIMITED
BLANCHARDSTOWN INDUSTRIAL PARK
BLANCHARDSTOWN
DUBLIN 15
TEL: (353)-1-8096480
FAX: (353)-1-8096476
Page 2 of 3
SERVICE ADDENDUM
Assured Availability Plus Service Level for Stratus Systems Running the Microsoft Windows Operating System
All definitions and terms contained in the Master Service Agreement and the Service Schedule apply to this Addendum. The terms of this Addendum shall control in
the event of inconsistencies.
1. Severity Level Definitions
1.1. Critical: A problem that causes your System to become completely unavailable to users.
1.2. Serious: A problem that substantially impairs System operation.
1.3. Moderate: A problem that does not substantially impair System operation.
1.4. Minor: A problem that does not impair the operation of your System. It is non -conforming behavior that can be avoided or ignored.
2. Customer Assistance Centers (CAC) Services: Stratus will use best commercial efforts to provide remote and telephone Hardware and Software support within
the times described below, depending on the severity of the problem, for problems reported by you via telephone or e-mail.
2.1. Critical: Stratus will acknowledge receipt of the problem within thirty (30) minutes. Stratus will provide CAC services (i) on a continuous basis until the System
is restored to service; and (ii) on a priority basis until a suitable workaround is provided or until all material aspects of the System's functionality are restored.
2.2. Serious: Stratus will acknowledge receipt of the problem within two (2) hours. Stratus will provide CAC services on a priority basis until the System's
functionality is restored or a suitable workaround is found.
2.3. Moderate: CAC services will be provided during local business hours only. Stratus will acknowledge receipt of the problem within four (4) hours. Stratus will
use reasonable efforts to resolve the problem or provide a work around within seven (7) calendar days.
2.4. Minor: CAC services will be provided during local business hours only. Stratus will acknowledge receipt of the problem within four (4) hours. Minor problems
will be corrected in a manner and within a time frame as determined by Stratus in its sole discretion.
3. Remote System Support and Monitoring: Stratus will provide 7x24 remote system support and monitoring of Covered Systems through an electronic
connection between each such Covered System and the Stratus CAC, using the Active Service Network. Remote System Support, if applicable, may include one or
more of the following:
3.1. Hardware problem auto notification. The System will automatically generate a call to Stratus CAC notifying us of a Hardware failure; and
3.2. Automatic parts replacement: Stratus' CAC will disburse a part replacement based on the System's automatically generated calls;
3.3. Access to Software downloads, uploads and on-line diagnostic routines; and
3.4. System report auto notification initiated by and relating to Software installations and system reboots.
4. Telephone Support: Stratus will provide 7 x 24, unlimited, toll free access, to the Stratus CAC for assistance with software problems related to the currently
supported version of the Stratus Software, Operating System and supported non -Stratus Software identified in your Service Schedule (individually and/or collectively
hereinafter referred to as "Supported Software"). Stratus technical support engineers will provide root cause problem determination and relief, available Software
updates and bug fixes as well as information and assistance related to Software features. Telephone Software Support applies to the following:
4.1. Stratus Software: Stratus will maintain Supported Stratus Software such that it will inter operate with the then Stratus -supported release of the Windows operating
system.
4.2. Microsoft Windows Support: For Critical and Serious problems related to the Microsoft Windows operating system kernel, Stratus will provide priority access to
Windows certified Stratus engineers, who will work collaboratively with Microsoft support personnel to address problems traced to a Microsoft product.
5. Active Service Manager Services: Stratus will provide user -authenticated access to the following Stratus 7x24 electronic support services:
5.1. Service event call logging and monitoring;
5.2. Stratus' technical Knowledgebase;
5.3. Software downloads; and
5.4. Product and service notifications
6. Hardware Remedial Services: Stratus will provide Hardware Remedial Services, which may include one or more of the following:
6.1. Advanced Parts Exchange — Next Business Day: Stratus will use commercially reasonable efforts to ship Hardware replacement parts within the same business
day of receiving an automatically -generated call through Remote System Support or by way of a Telephone request that is received prior to 5:00 P.M. local time.
Restrictions may apply in certain countries. Stratus will pre -pay the cost of shipping the replacement part to the requested location. A next -business -day delivery
carrier chosen by Stratus will make shipments. Each replacement part shipment will also include shipping material and a pre -paid freight bill for return of the defective
part. The defective part must be returned to Stratus within fourteen (14) calendar days from the date of reported failure. If you fail to do so, Stratus will bill and you
will pay the list price of the replacement part shipped. Stratus assumes all risk of loss or damage to parts that are in transit to and from the location.
6.2. On -Site Hardware Support: If Stratus determines that it is necessary to do so, Stratus will provide on-site Hardware support Services at its cost and expense
including labor, parts and material necessary to repair the System, which may include one or more of the following:
(1) Same Day Emergency On -Site Services: Stratus will provide same day emergency on-site service if the System experiences a Critical problem
and it cannot be recovered through remote support means.
(2) Next Business Day On -Site Services: Stratus will provide next business day on-site service if the System experiences a Serious problem and
cannot be recovered through remote service means.
6.3. Hardware On -Site Support Services Conditions:
(1) You agree to render all reasonable assistance and to cooperate fully with Stratus' service representative or agent. Additionally, you agree to
ensure his/her ability to work without interruption or interference.
(2) Upon arrival at the site, subject to Stratus' reasonable judgment, on-site Services will be provided until the System is operational or as long as
reasonable progress is being made. Work may be temporarily suspended if additional parts or resources are required, but will resume when they
become available.
(3) Travel expenses incurred in traveling to and from a System site located more than fifty (50) miles [eighty (80) kilometers] from the nearest
Stratus service center will be charged to and paid by you.
S112. S112 AA Plus -Windows Service Addendum (March 2 2006) Page 3 of 3