OmniOS support is based on a per machine pricing model.
|# of sockets||2 socket||3 - 4 socket||5+ socket|
|# of sockets||per machine|
|3 - 4 socket||$5,000|
OmniTI offers a 20% discount on support to non-profit and non-commercial educational organizations.
Looking for bulk discounts? Interested in reselling OmniOS or want to bundle OmniOS with your hardware appliance? Drop us an email at firstname.lastname@example.org, or give us a call at 240.646.0777 to discuss your needs.
1.1. Delivery Date shall mean the date the Software is made available to Customer via electronic download.
1.2. Software shall mean the software program known as "OmniOS™".
1.3. Updates shall mean any version, release, revision, modification, enhancement, change, refinement, fix, work around, or improvement that is incorporated into the Software and that generally adds functionality or improves performance, or corrects a problem.
2. FEES AND PAYMENT. The maintenance and support fees for the Software are as set forth in Exhibit A, Maintenance and Support Fees, which is incorporated herein by reference, and the initial payment is due and payable on the Effective Date and subsequent payments due and payable on the first day of the next annual period in the Term, unless the Term is not renewed or this Agreement terminates as provided herein.
3. MAINTENANCE. Maintenance and Support shall be provided as set forth in the Customer Support Agreement, attached and incorporated herein by reference as Exhibit B. Fees above in Section 2 include the Maintenance and Support services as set forth therein.
4.1. Confidential Information. Except as otherwise provided herein, all confidential information and trade secrets exchanged by the parties hereto, including without limitation, terms and pricing of this Agreement, and non-public financial and business information, information about each party’s employees, clients, and vendors and all other information that a reasonable person would deem confidential (“Confidential Information”) shall be used only for purposes of this Agreement, and no such information shall be disclosed by the recipient to any third party or used except solely and exclusively to perform, or to receive the befits under, this Agreement.
4.2. Exceptions. Nothing contained herein shall in any way restrict or impair either party’s rights to use, disclose, or otherwise deal with any Confidential Information that the recipient proves (i) is or becomes generally available to the public through no wrongful act of either party; (ii) was in the recipient’s possession prior to the time it was acquired from the disclosing party and which was not directly or indirectly acquired from the disclosing party; (iii) is independently made available as a matter of right to the recipient by a third party (iv) is independently developed by the recipient without use or reference to the Software.
4.3. Compelled disclosure. If a party is compelled by order, subpoena or other legal obligation to disclose Confidential Information it shall promptly inform the other party in writing, reasonably cooperate in such other party's efforts if any to obtain a protective order or other protection for such Confidential Information, and shall not produce such Confidential Information to the third party until at least 10 calendar days have passed after such written notice (and then it shall disclose such Confidential Information but only in accordance with any protective order), unless the requesting party is a government entity that requires, to comply with law, such disclosure prior to notice to the disclosing party.
5. REPRESENTATIONS/LIMITATION OF WARRANTY.
5.1. General Representation. Company represents and warrants that Company is authorized to grant the rights granted herein. In addition, Customer represents and warrants (i) Software and Updates furnished to Customer hereunder shall perform in all material respects accordance with the documentation and be free of material abnormal program abends, logic and/or calculation and programming errors; and (ii) as of Delivery Date and at the Delivery Date of any subsequent Updates, Customer shall have scanned the Software being delivered with a commercially available and up-to-date antivirus software checker and such software shall not have reported that the Software contains any viruses, Trojan horses, worms or similar malware.
5.2. LIMITATION OF WARRANTIES. EXCEPT FOR THE ABOVE EXPRESS REPRESENTATIONS, THE SOFTWARE AND DOCUMENTATION IS PROVIDED ON AN "AS IS" BASIS, WITHOUT ANY OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, W ARRANTIES OF MERCHANTABLE QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IMPLIED W ARRANTY OF ACCURACY , ANY IMPLIED WARRANTY AGAINST INFRINGEMENT, ANY IMPLIED W ARRANTIES ARISING UNDER ANY UNIFORM COMPUTER INFORMA TION TRANSACTION ACT OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE OR COURSE OF DEALING. THERE IS NO WARRANTY THAT ANY INFORMA TION, COMPUTER PROGRAM, LICENSOR'S EFFORTS OR ANY SYSTEM PROVIDED BY LICENSOR WILL FULFILL ANY OF CUSTOMER’S PARTICULAR PURPOSES OR NEEDS. LICENSOR DOES NOT W ARRANT THA T THE SOFTW ARE WILL OPERA TE ERROR FREE OR IN AN UNINTERRUPTED FASHION.
6. INFORMAL DISPUTE RESOLUTION.
6.1. General. Prior to the initiation of any action or proceeding under this Agreement to resolve disputes between the parties related to the license granted herein, the parties will make a good faith effort to resolve such disputes via the following dispute escalation procedures.
6.2. Escalation. In the event that representatives of Customer and Company are unable to resolve between themselves any disagreement or dispute concerning or relating to this Agreement, the relationship between the parties in respect to this Agreement, or the use of Software, then the disputing party shall send formal notification to the appointed contact of the other party (as set forth in the Notice provisions in Section 10.7 of this Agreement) detailing the nature of the disagreement and requesting formal assistance in resolving the issue. The designated person of each party shall negotiate in good faith to resolve the disagreement or dispute within thirty (30) days. If the disagreement or dispute remains unresolved at the end of such thirty (30) day period, then upon the written request of either party an Executive Vice President of each party shall negotiate in good faith (including one face to face meeting) to resolve the disagreement or dispute within thirty (30) days.
6.3. Cooperation in Good Faith. Customer represents and warrants that in the event of a good faith fee dispute or contract re-negotiations, it will not: (i) terminate, disable, or withhold passwords (or even threaten to do so), or (ii) attempt to terminate this Agreement by reason of default.
6.4. Non-binding Mediation. In the event that despite the parties’ efforts to find an amicable resolution to the disagreement or dispute via the dispute escalation procedures outlined in this Section, then either party may submit the matter for non-binding mediation by written notice to the other party. The site of such mediation shall be Baltimore, MD.
6.5. Option. Finally, in the event that the disagreement or dispute is not resolved to the satisfaction of the parties, then either party, upon written notice to the other, may initiate proceedings in accordance with the choice of law provisions outlined in Section 10.5 of this Agreement.
6. TERM, TERMINATION AND BREACH.
6.1. Term. The Term of this Agreement is one (1) year from the Effective Date, unless this Agreement is earlier terminated as provided in Section 5.2, or below in Section 7.2. This term shall automatically extend for additional one (1) year terms unless either party gives written notice to the other, not later than 60 days prior to the then expiring term, of its election not to renew the term.
6.2. Termination for Cause. If either party contends that the other party is in material breach in its performance under this Agreement, such party shall follow the provisions in Section 6. If such breach is not substantially cured in accordance with the Informal Dispute Resolution procedures outlined in Section 6, then the non- defaulting party, by giving written notice thereof to the defaulting party, may terminate this Agreement as of a date specified in such notice of termination; provided however, that nothing set forth herein shall prevent either party from pursuing equitable relief (which may include prohibitory or mandatory injunctive relief and/or specific performance) in the event of a breach or threatened breach of the terms and conditions set forth herein that would cause such party material irreparable harm.
7. LIMITATION OF LIABILITY
7.1. LIMITATION OF LIABILITY. EXCEPT FOR COMPANY’S BREACH OF THE CONFIDENTIALITY OBLIGA TIONS, AND EXCEPT IF IT IS ESTABLISHED COMPANY ACTED IN SUBJECTIVE BAD FAITH, THE ENTIRE LIABILITY OF COMPANY TO THIS AGREEMENT FOR DAMAGES FROM ANY CAUSE RELATED TO OR ARISING UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, WILL NOT EXCEED THE MAINTENANCE AND SUPPORT FEES PAID BY CUSTOMER TO COMPANY FOR THE SOFTWARE WHICH IS THE SUBJECT MATTER OF THE CAUSE OF ACTION.
7.2. LIMITATION OF REMEDY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFITS, EVEN IF SUCH PARTY KNEW OR SHOULD HA VE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS, DEMANDS OR ACTIONS AGAINST THE OTHER PARTY.
7.3. REPAIR/REPLACE. EXCEPT FOR COMPANY’S THIRD PARTY INFRINGEMENT INDEMNITY, BREACH OF THE CONFIDENTIALITY OBLIGATIONS, OR COMPANY’S ACTION IN SUBJECTIVE BAD FAITH, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF BREACH BY COMPANY SHALL BE FOR COMPANY TO REPAIR, REPLACE, RE- PERFORM OR OTHERWISE CORRECT THE ISSUE TO BRING THE SOFTW ARE OR SERVICES PROVIDED THEREWITH INTO COMPLIANCE WITH THE APPLICABLE REPRESENTATION OR WARRANTY; PROVIDED THA T IN THE EVENT THA T COMPANY IS UNWILLING OR UNABLE TO REPAIR, REPLACE OR REPERFORM, CUSTOMER SHALL ALSO BE ENTITLED TO A REFUND OF ALL PRE-PAID, THEN UNUSED MAINTENANCE AND SUPPORT FEES PAID HEREUNDER.
8.1. Customer Exercise of Rights under U.S. Bankruptcy Code. All rights as granted under or pursuant to this Agreement by Company to Customer are, and shall otherwise be deemed, for purposes of Section 365(n) of the US Bankruptcy Code (the “Bankruptcy Code”), licenses or rights to “intellectual property” as defined under Section 101(35A) of the Bankruptcy Code. The parties agree that Customer, as a grantee of such rights under this Agreement, shall retain and may fully exercise all its rights and elections under the Bankruptcy Code. The parties further agree that, in the event any proceeding shall be instituted by or against Company seeking to liquidate it, or under any other law relating to a bankruptcy liquidation, Customer shall have the right to retain and enforce its rights under this Agreement, including, without limitation: (i) the right to obtain a complete duplicate of, or access to, the latest version of the Software, including without limitation the latest version of the source code and source code documentation; and (ii) the right to continue to use the software and all documentation and other supporting material relating thereto as included and made a part of this Agreement.
8.2. Rights. If the Company is adjudicated bankrupt or insolvent, or if a trustee or receiver is appointed over the Company or any of its property, as debtor-in-possession the following rights, obligations and limitations control: (i) Company or any trustee must not assign any or all of its rights, title or interest, in or to this Agreement without the explicit written consent and approval of Customer not to be unreasonably withheld; or (ii) any assignment of this Agreement by Company or any trustee or receiver may only be perfected if it provides adequate assurance of future performance.
8.3. Cooperation. If this Agreement is terminated during bankruptcy proceedings or if the trustee, receiver or debtor-in-possession successfully and properly obtains a court order rejecting this Agreement, then said trustee, receiver, or Company as debtor-in-possession must cooperate with Customer in arranging for the orderly transfer of responsibilities to such persons or entities as Customer may designate. The rejection is not effective until the orderly transfer of responsibilities, consistent with sound professional practice, has been completed.
9.1. Entire Agreement. This Agreement and the Exhibits referenced herein constitute the entire agreement between the parties hereto and supersedes any prior understandings, agreements, representations or statements of any kind, oral or written, that may be related to the subject matter hereof in any way, and shall govern all software which may be licensed by Customer via a purchase order (either direct or through a reseller), or other vehicle agreed and executed by the parties hereto. The parties also understand, acknowledge and agree that unless an intent to modify this Agreement is expressly stated in a written instrument signed by an officer of both parties, no additional terms or changes to these terms, regardless of whether such additional terms or changes contain provisions contrary to those in this Agreement, shall be valid or binding on the parties.
9.2. Assignment. Neither party may assign or delegate (by operation of law or otherwise) this Agreement or any rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld; provided, however, that upon written notice to the other party, either party may assign this Agreement, and all its rights and obligations hereunder, to an acquiring entity in the event of a merger, reorganization, consolidation, or sale of all or substantially all of such party’s assets. Any attempt to assign this Agreement in contravention of this Section shall be void and of no force and effect.
9.3. No Waiver; Severability. No delay or omission by either party to exercise any right or power hereunder shall impair such right or power or be construed to be a waiver thereof. No change, waiver, or discharge shall be valid unless in writing and signed by an authorized representative of the party against which such change, waiver or discharge is sought to be enforced. A waiver by either party of any of the covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant contained herein. If any term or provision of this Agreement or the application thereof is held invalid, the remainder of this Agreement shall not be affected thereby.
9.4. Survival of Terms. Upon termination or expiration of this Agreement, any provisions which by their nature are intended to survive such termination shall survive.
9.5. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Maryland, without giving effect to the principles of conflicts of law thereof. The Uniform Computer Information Transactions Act ("UCITA"), the Uniform Commercial Code, and the United nations Convention on Contracts for the International Sale of Goods, are each excluded and shall not apply to this Agreement.
9.6. Export Regulations. Customer agrees to comply with, and the license granted herein or by Software is subject to, all applicable laws, including but not limited to the export control laws of the United States. Customer will not export, re-export, transfer, divert or disclose, directly or indirectly, including via remote access, the Software or any Confidential Information without the appropriate United States and foreign government licenses, and Customer is responsible for any violation of such export control laws. By accepting this Agreement, Customer confirms that Customer is not a resident of citizen of any country currently embargoed by the U.S.
9.7. Notices. All notices under this Agreement shall be considered delivered the day after such notice was received by the other party via reliable overnight courier with delivery conformation to the address and the attention of the individual noted in the agreement.
Software Maintenance and Support will be provided by Company during the support term in accordance with the terms of this Exhibit.
1. Standard Support and Maintenance, includes:
Customer’s Responsibilities: Customer shall:
Description of Tech Support: Tech Support is staffed by Company’s Transactional Support Team and provides:
Important Note: Standard Support and Maintenance does not include, unless otherwise stated in the Pricing Schedule, remote management services (where Company’s staff administers Customer’s monitoring platform/environment remotely) or any code development related to customizing the Software or any part of Customer’s environment.
Description of Severity 1 Issue Resolution:
For Severity 1 Issues, Customers shall follow the procedure below:
All efforts of Company personnel expended outside of Business Hours for any Severity 1 Issue will be purely focused on providing a Workaround to the issue. While Company support staff are on call at all times to respond to Severity 1 Issues, the after hours staff are not able to develop or troubleshoot custom code which may be required for a Resolution of the issue.
Description of Severity 2 and Severity 3 Issue Resolution:
Severity Levels Chart
Note: For the purpose of this Agreement, a failure attributed to one of the following shall not be considered a “Severity 1”, “Severity 2” or “Severity 3” Issue and Company shall not be penalized for it: (i) a Customer configuration setting which was not approved in advance by Company; (ii) a Customer policy setting which was not approved in advance by Company; (iii) a failure of a third party solution; (iv) a failure of a solution developed by Customer; or (v) a failure of any proprietary software Company has developed for Customer under any professional services contract (it being understood that any support offered by Company with relation to such software would be governed by the contract pursuant to which such software is developed and purchased).
|Level||Issue Definition||Initial Response Period||Target Workaround or Resolution Period|
||1 hour, during Business Hours||Continuous effort|
|Severity 2||A major software bug that causes material problems, but does not cause the Customer’s monitoring environment to fail to perform its essential functions.||2 Business Hours||8 Business Days|
||1 Business Day||Subject to Licensor’s product roadmap schedule.￼￼￼￼￼|